Guido Croxxato and Eugenio Zaffaroni, Attorneys for Former President of Peru Pedro Castillo.Courtesy
Ever since Eugenio Raúl Zaffaroni (Buenos Aires, 83) and Guido Croxatto (Buenos Aires, 41) took over as Pedro Castillo’s legal defence, they have mainly communicated with him through intermediaries. In February, they traveled to Lima to visit him in Barbadillo prison – where his client is serving two preventive detentions: for rebellion and for alleged leadership of a criminal organization – but the National Penitentiary Institute (INPE) did not allow them because of the fact that he could not get his legal profession certified by a professional association in Peru. Only Croxatto was then able to enter his cell.
They say Castillo recently asked them to visit him, but point out that “the minimum conditions are not guaranteed”. In Zaffaroni’s library in Buenos Aires, they both chat with EL PAÍS while lighting cigarettes and drinking mate. Croxatto looks at the process that removed from criminal dogmatics the union teacher and Zaffaroni, former judge at the Inter-American Court of Human Rights (IACHR) and former lawyer for Evo Morales and Luiz Lula da Silva. “They have told us that we are not scary and that every time we speak, we break the media blockade. “We will continue to make the case visible,” they claim.
Questions: Why was the Castillo thing just an attempt and by all its letters can’t it be said that it was a coup d’etat?
Eugenio Zaffaroni: Let’s start with one thing: the Castillo case is not unique in Latin America. It is part of the so-called lawfare used by transnational financial powers in our region. Monopolistic or oligopolistic media, in combination with a few key judges, persecute, criminalize and prosecute the leaders of movements that obstruct the interests of financial corporations in America.
Q Let’s get down to the concrete fact of what happened to Castillo…
single Castillo was about to be impeached by Congress and would run away like an idiot. During his tenure, he failed to carry out any of the initiatives he wanted to promote as his projects took off. He delivered what was actually a proclamation, and his own imprisonment landed him in prison. So Castillo knew he didn’t have the last Peruvian cop. In other words, what Castillo did would be an inappropriate attempt at worst because it would never work. The Peruvian code clearly states that the improper attempt is atypical. Every offense must have a legal value. The legal claim was not affected by this in any way.
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Q Is the crime of rebellion only valid if it is consolidated?
single Sure, when it’s used up. And if not, there can be an attempt, but the attempt must always be appropriate. It’s not just murder if I kill someone, it can also be attempted murder. But if I want to kill someone with parsley, of course not. He knew he had no support.
Q So why did he do it?
single It was a proclamation saying: I’m going, but that’s telling people what to do. Be careful, even if Castillo believed someone could raise a gun, the attempt would still be objectively inappropriate. If I believe and am convinced that through my prayers or putting needles in a doll I am killing someone, that is an improper attempt, even if I believe it is effective.
Q When Castillo read this speech, he was Commander-in-Chief of the Armed Forces. The fact that the military did not support him is something else. But he had ultimate power.
AND. Z. Suppose he believed he had power, but that never had any effect. It’s the same as killing someone by pinning a doll. Yes I believe that I will kill him, I believe that I have the power, the power of evil by my side and the other doesn’t die. This is an inappropriate attempt.
Q What precedent then remains? According to his logic, other leaders could attempt coups and, when they fail, rely on them not happening. Don’t you think that’s very serious?
single No no. Of course, if I fired five shots at him and didn’t hit him at all, that was an attempt because the medium was ideal. Now, if I only devote myself to prayer and make a superstitious attempt, the medium is unsuitable. He knew no one would answer. I don’t think Castillo was that careless, I couldn’t talk to him.
Q At this point, the defense appears to be an act of trust between what Castillo believed and what did not.
Guido Croxatto. This fact that the inappropriate attempt is not punishable is at the center of the discussion with César San Martín Castro and the criminal judges in Peru. As for the procedure, I would like to say that the message that Castillo read was not a message to the nation because he did not even comply with these formalities. And that is not insignificant, because later they wanted to accuse the ministers of a conspiracy in which they were not involved. Not even Castillo’s own ministers knew what he was reading. Therefore the conspiracy will not continue. A crime is a typical act, illegal and guilty. If the action is atypical, there is no crime. Now they want to unravel the mystery of Castillo’s communication because they have no evidence. They haven’t been able to find a single commander who says, yes, I was about to go with a hundred police officers to dissolve Congress.
single If custody itself is holding him, it’s because no one has responded to Castillo. It is a general rationale: in any crime there must first be at least some threat to a statutory right, and that threat has never existed.
Q Do you really think, please, that there was no danger in the President of the Republic saying on national television that Congress was dissolved and that he was going to install an emergency government? Do you seriously see no danger there?
single No, because no one paid any attention to him. He was practically deposed.
Q To defend him, they take Castillo like he’s a madman who made a speech where he gave a coup d’état just because he gave it.
single I don’t know it. I think he wanted to say to his people: Congress must be dissolved. Well, I’m going, and before I go, I’m giving this order. Overall, no one will stick to it. Make it seem like I tried to do something, like I didn’t leave like an idiot who wasn’t allowed to do anything. Given that he was a madman, the attempt is inappropriate.
G.C We are talking about a President who has been obstructed by 70 projects and we are talking about a Congress that is rejected by 90% of Peruvians. The President of Mexico, López Obrador, told me that when he saw Castillo, Castillo told him that he was politically alone. He has rid himself of any structure. He also said that to me personally. Was he so wrong with that speech given what we are seeing in Peru? With a dictatorship that has murdered 70 people and nobody is in prison. And Castillo is in jail for giving a speech.
Pedro Castillo, on October 11, 2022. EL COMERCIO (Europa Press)
Q They mention that it is not a message to the nation as it did not have the approval of the Council of Ministers. It was later learned that several ministers were present and that even Betssy Chávez, their prime minister, had sent a message to the ministers’ WhatsApp hours earlier, asking for “unity and cohesion on a historic day”.
G.C He called her over because he wanted to give a speech. He told me about the speech: “That’s what the people asked me to do.” His interlocutors were neither the politicians, nor the racist Congress, nor his own ministers. I believe that if you want to indict conspiracy, you have to indict entire populations who supported Castillo’s slogan. Castillo understands that he pays a price for defending the people, and that’s why I’m defending him because I believe him.
Q Both claim that their right of defense has been violated, which was not discussed in plenary, that their vacancy was accepted with fewer votes than required, in short, that there are various irregularities. However, it is known from the mouth of the Mexican President that Castillo had previously applied for asylum and was on the run. Shouldn’t exceptional measures be taken?
single Let’s assume it’s true. That confirms the temptation. He knew what the speech was about and he went to the Mexican embassy. It was over then. He practically no longer had the power of President.
Q Are you saying that it was appropriate that Castillo, despite his attempted coup, remain President of the Republic for a few more days so that due process would be respected at Castillo?
single That is possible or not. It does not matter. In general, the political process is political and therefore does not have all the guarantees that a criminal process offers. But the minimum required by international law where there is unanimity is that the accused must be heard, and the Peruvian Congress has never heard him. The Supreme Court’s argument is a confusing paragraph, saying something like Castillo had no substantive defense and therefore it didn’t matter that he was denied a formal defense.
Q I insist: Shouldn’t extraordinary measures be taken in the face of a threat to the rule of law and democracy?
G.C Then what is the purpose of the constitution?
single It is a general principle of law. When people talk about my abilities, including psychic abilities, they have to listen, even if I’m completely insane. You have to listen to the supposedly incompetent.
G.C Many Peruvian criminal defense lawyers, afraid to speak out and unsupportive of Castillo, agree that due process was violated. I believe the only way forward is to have Castillo reinstated and through a fair trial. It’s the only legal way.
Q Do you think that during these eight months the Peruvian people have taken to the streets mainly in defense of Castillo?
single I think there are a number of factors throughout Peru’s history. We all know that Peru is about coast, mountains and jungle. Castillo will have flaws. But the Serranos identified with a president who resembled them. And he did it to reinforce that account. If not, he went away as useless.
Q The July 28 protests were not as violent as they had been in the first few months, when Castillo was sacked. What do you think is the reason?
G.C We are lawyers, not political analysts. Now I would say that there is great fear as 70 people have been murdered in Peru and impunity is the rule. I see great fear in Peru. But the only thing that interests me is that due process is respected in the event of an unlawful and illegal deportation.
Q In an opinion column you both signed on page 12 you say: “Castillo is in prison for what he is and represents: the lowly people.” But let’s assume that these lowly people were not very happy with their government either. A Datum poll from August 2022 shows that his opposition has increased from 64% to 73% in Sector E and from 73% to 75% in D.
single He knew it. That’s why he gave this speech before he left. That’s the motivation for the speech: he couldn’t keep anything he promised.
CE But not because of his incompetence.
Q Do you really think it was just because they didn’t let him?
G.C The mass formation of the gas. For example, had this project progressed, the approval numbers would have been different. But every time Castillo sent a project, it was turned down because it clashed with Peru’s concentrated and economic interests. And people think it’s all Castillo’s fault and not Fujimori’s congressmen.
single So he proclaims: I’m not going away with my tail between my legs.
Q Even if you don’t defend him for his corruption trials and for running an alleged criminal organization in the palace, you cannot deny that these are further reasons undermining his legitimacy. Castillo is not only seen as a president who lacked leadership, but also as someone who gave in to corruption.
single Corruption has become justice. I’m not familiar with these Castillo cases, but in all but a few cases, corruption has become the new sorcery of the judiciary. This combination of monopolistic or oligopolistic media and some judges always leads to corruption. And in many cases we have realized how unfounded they are. The great corruptions are the ones that go unpunished.
Q The list of suspected acts of corruption by Castillo is very long, as is the list of those who testify against him…
G.C That doesn’t make the termination legal. But he’s also poor, Castillo. Nobody pays us. We do it out of vocation and commitment. Fujimori has ten thousand lawyers from expensive studios and nobody asks him where he gets them from. When I went to Mexico to visit López Obrador, Castillo’s wife told me that she was ashamed that they couldn’t pay us. And I almost started crying. We do this because we believe in justice. We are not dealing with people who are awash with money through corruption.
Q From today’s perspective, do you think it makes sense to restore your client’s presidential elections?
G.C What happens is not our concern. But procedurally, that’s what fits together: redress and a fair trial.
single Somehow Peru has to rediscover its institutional path. We must return to democracy and put an end to this dictatorship. Prosecute those responsible for the deaths. Mrs (Dina) Boluarte will one day have to pay for these deaths.
Q What do you say to those who think their defense is based primarily on Castillo’s victimization and legal formality?
G.C The legal formality is the law. And you have to enforce the law. That is the mission of every attorney. It was the Nazis’ criticism of the liberals: they told them they were defending a formality. And we’re not victimizing Castillo. Castillo is a victim. He was illegally deported, he cannot speak to his exiled daughter, and his foreign lawyers cannot see him. The Peruvian state violates the rule of law.
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