Unofficial Translation (Courtesy of Deepl) Article II. Principles and criteria applicable to the declaration of forfeiture of ownership For the application of this legislative decree, the following principles and criteria apply: … 2.3. Autonomy: the process of extinction of ownership is independent and autonomous from the criminal, civil or other jurisdictional or arbitral process, and therefore the prior issuance of a judgment or award in the latter cannot be invoked to suspend or prevent the issuance of a judgment in the former. … 2.5. Application in time: the extinguishment of ownership is declared regardless of whether the conditions for its application have occurred prior to the entry into force of this legislative decree. 2.6. Jurisdictional Protection and Due Process: In the processing and exercise of the process of extinguishment of ownership, the rights to jurisdictional protection and due process, recognized in article 139, paragraph 3 of the Political Constitution of Peru, are observed, as well as the rights to defense, evidence and double instance, which are part of the content of the right to due process. … 2.9. Burden of proof: for the admission of the claim for extinguishment of ownership, it is up to the Prosecutor to offer evidence or concurrent and reasonable indications of the illicit origin or destination of the property. Once the claim is admitted for processing, it is up to the requested party to prove the licit origin or destination of the property. Article III. Definitions For the purposes of this legislative decree, the following definitions shall apply: …. 3.11. Unjustified increase in assets: increase in the assets or economic expenditure of a natural or legal person notoriously higher than that which he/she could normally have received by virtue of his/her lawful labor or economic activity or his/her income from any other lawful cause, there being elements that allow to reasonably believe that such increase in assets comes from unlawful activities. … Article 2. Purpose of the Legislative Decree The purpose of this legislative decree is to regulate the process of extinction of ownership that proceeds against the assets mentioned in the assumptions of fact of Article I of the Preliminary Title, and whose origin or destination is related to illicit activities. Article 7 must also be observed for the proceeding, regardless of who has acquired the property or is in possession of it. Article 3. Legal nature of the process of Extinction of Ownership The process of extinguishment of ownership, as well as being autonomous, is of a real and patrimonial nature. …. Article 7. Requirements to proceed with the forfeiture of ownership process 7.1. The following are the conditions for the proceeding for forfeiture of ownership: … (b) In the case of assets that constitute an unjustified increase in the assets of a natural or legal person, because there are no elements that reasonably allow it to be considered that they are derived from lawful activities. … Article 12. Stages The process of extinguishment of ownership consists of two stages: 12.1. A patrimonial enquiry stage under the direction of the Specialised Prosecutor, in accordance with the attributions assigned in the present legislative decree; and. 12.2. A judicial stage which begins with the admission of the claim for the extinguishment of ownership by the specialised court. Article 13. Initiation of the investigation of assets It is the responsibility of the Specialised Public Prosecutor to initiate and direct the investigation into assets, either ex officio or by complaint, when any of the requirements set out in this legislative decree are met. Once the asset investigation has been initiated, the Specialised Public Prosecutor's Office shall be notified so that it may participate in accordance with its functions and powers. The asset investigation stage is of a confidential nature. Article 14. Asset Investigation Stage 14.1. The Specialised Prosecutor shall initiate the asset investigation by means of a duly reasoned decision and shall conduct the investigation with the aim of: Identifying, individualising, locating and locating the assets of patrimonial value on which the process could fall, as they are in an assumption of extinction of ownership. Locate the supposed owners of the assets that are under an assumption of extinguishment of ownership, or those who could intervene as third parties. To gather evidence or concurring and reasonable indications that demonstrate the existence of any of the conditions for the extinguishment of ownership provided for in this legislative decree. To gather evidence or concurring and reasonable indications that demonstrate the link or nexus of relationship between any of the assumptions for declaring the extinguishment of ownership, the corresponding illicit activity and the assets subject to extinguishment of ownership. Request or execute the relevant precautionary measures. Request the judge to lift bank secrecy, secrecy of communications, tax secrecy, stock market secrecy, and other measures that may be relevant for the purposes of the proceedings. 14.2. The asset investigation ends when its purpose has been fulfilled or within a maximum period of twelve (12) months, which may be extended once only, by means of a reasoned decision for an equal period of time. In cases that are declared complex, in accordance with the complexity criteria established in the regulations, the maximum period shall be thirty-six (36) months, extendable for an equal period, once only, by means of a reasoned decision. Article 15. Precautionary measures 15.1. The Specialised Prosecutor, ex officio or at the request of the Public Prosecutor, in order to guarantee the effectiveness of the proceedings for the extinguishment of ownership, may request the Judge for the precautionary measures he/she considers necessary. The judge decides in a confidential hearing within 24 hours of receiving the request, assessing the plausibility of the facts and the danger of delay. For these purposes, he may order the search and seizure of real estate. If the registration of the measure is necessary, the judicial reports are issued in the same act in which it is granted. 15.2. During the asset investigation stage, the Specialised Prosecutor is empowered to execute exceptionally and for reasons of urgency, a precautionary measure of immobilisation, seizure, inhibition or registration order on any of the assets. 15.3. Any precautionary measure executed by the Specialised Prosecutor during the asset investigation stage must be confirmed or rejected by the judge within twenty-four (24) hours of its execution. 15.4. In the case of registrable assets, the Public Registrar shall register the precautionary measure ordered by the Judge, under his responsibility, without prejudice to the immediate allocation or use of the same, resorting to the relevant legal mechanisms in the event that they are occupied. These registrations will be made by the sole merit of the judicial resolution ordering the measure. Once the precautionary measure ordered by the competent judicial authority has been registered and is in force, no act or contract, regardless of its nature, shall be recorded or registered in the registry entry of the property until the registration of the respective sentence, except for those acts of administration or disposition carried out or requested by the National Programme of Seized Property (PRONABI); a circumstance that is expressly stated in the respective entry. The annotation of the precautionary measure is made under the heading of charges and encumbrances in the corresponding registry entry. 15.6. Assets that cannot be registered are immediately transferred to the administration of the National Programme of Seized Assets (PRONABI). 15.7. Precautionary measures are requested, granted and executed before informing the requested party of the existence of the asset investigation. 15.8. Once the precautionary measures have been executed, the requested party shall be notified within five (5) working days of such measures. 15.9. The judicial decision granting or denying the precautionary measures may be appealed within three (3) working days of notification. The Specialised Chamber must set a date for the hearing of the case within five (5) working days of its elevation and acquit the degree at the same hearing. Exceptionally, when the facts are complex, the decision may be postponed for up to three (3) working days following the hearing of the case. 15.10. The precautionary measures are maintained until the final decision is reached in the process of extinguishment of ownership. 15.11. When precautionary measures are decreed in the asset investigation stage, the specialised prosecutor shall file the forfeiture of ownership lawsuit or file the case, as appropriate, within a period that shall not exceed the maximum period for that stage established in paragraph 2 of the previous article, under penalty of lifting the measure, in order to avoid affecting the rights of third parties, without prejudice to disciplinary, administrative or criminal actions for the omission incurred. Article 16. Conclusion of the investigation of assets Once the asset investigation has been concluded, the Specialised Prosecutor is empowered to: 16.1. Demand before the competent judge the declaration of extinction of ownership. 16.2. File the asset investigation, when it is not possible to substantiate any of the assumptions invoked in the present legislative decree. This decision may be the subject of a complaint by the Public Prosecutor within five (5) working days of notification. The Senior Public Prosecutor hears the complaint filed, and pronounces within ten (10) working days of receiving the proceedings, with the knowledge of the Specialised Public Prosecutor. If he considers the complaint to be well-founded, he can order the prosecutor in charge of the asset investigation to present the claim for extinction of ownership before the competent judge or to continue with the investigation when insufficient performance has been noted at this stage, observing the deadlines indicated in article 14.2; otherwise, he approves the file. If no complaint is lodged against the decision to close the case, it is referred to the senior public prosecutor, who, within twenty (20) working days, may confirm it or order the filing of the complaint with the public prosecutor in charge of the investigation into the assets. In any case, the decision to close the case is final and a new investigation into the assets can only be initiated if new evidence is found. …. Article 17. Requirements of the application for forfeiture of ownership 17.1. The Public Prosecutor shall file a written application for forfeiture of ownership with the judge, containing the following: The facts on which the petition is based. The identification, description and economic valuation of the assets that are the object of the request for the extinguishment of ownership. The assumption on which the claim is based. The link between the assets and the unlawful activity or the unjustified increase in assets. The name, identification details and address of the persons who may have an interest in the case or, if not, the reason why it was impossible to locate them. Offering of the evidence or concurrent and reasonable indications that support the claim. Request precautionary measures if necessary. 17.2. Additionally, the Specialised Public Prosecutor notifies the Public Prosecutor of the complaint within 24 hours, so that he/she may participate as a procedural subject, in defence of the interests of the State during the procedural stage. Article 18. Qualification of the application for forfeiture of ownership 18.1. Upon receipt of the application for the extinguishment of ownership filed by the Prosecutor, the Judge, within three (3) working days, issues a duly substantiated decision, and may admit the application for processing, declare it inadmissible or inadmissible, communicating said decision to the Prosecutor and the Public Prosecutor. In the event that the complaint derives from cases declared complex, the term shall be ten (10) working days. 18.2. In the event of noticing the absence of any formal requirement, it declares it inadmissible, granting a period of three (3) working days for rectification. Once this period has expired, if it has not been rectified, the application is filed, without prejudice to any administrative actions that may be applicable. 18.3. Against the decision that declares the claim inadmissible, the only remedy available is an appeal within five (5) working days. Once this period has expired, if no appeal is lodged, the claim shall be filed, without prejudice to any administrative actions that may be applicable. 18.4. In the same resolution admitting the claim for processing, the Court decides on the precautionary measures requested in the claim. Article 19. Notification 19.1. The decision admitting the claim is notified within two (2) working days of its issuance, either personally or by means of publications. 19.2. The personal notification is made by means of a letter addressed to the requested party or other persons who appear as holders of rights in rem over the property or who are directly affected by the process. 19.3. If personal service cannot be effected, service is effected by publication of edicts. Notification by publication of edicts is done by publishing the decision of admission for three (3) consecutive calendar days in the official newspaper or in another newspaper of major circulation in the locality where the competent Court is located. In the absence of newspapers in the locality where the Court is located, the publication is made in the nearest locality that has them and the edict is also posted on the panel of the Court and in places that ensure its wider dissemination. This notification is accredited by adding to the file a copy of the publications, in which the text of the announcement and the days and hours in which it was disseminated are recorded. The decision is deemed to have been notified on the day following the last publication. 19.4. The Judge may also order that the object of the notification be disseminated by radio broadcasting for three (3) consecutive calendar days. This notification is accredited by adding to the file an affidavit issued by the radio broadcasting company, stating the text of the announcement and the days and times it was broadcast. The decision is deemed to have been notified on the day following the last radio broadcast. 19.5. The purpose of notification by edicts or radio broadcast is to summon all persons who consider themselves to have a legitimate interest in the process, so that they may appear to assert their rights. Article 20. Answer to the Complaint The requested party shall answer the claim within thirty (30) working days following the notification of the resolution admitting it for processing, offering the evidentiary means it deems appropriate to accredit the legality of the goods, objects, effects or profits that are the subject matter of the process of extinction of ownership. Within the same term it may deduce the exceptions foreseen in the regulations. At the end of this term, the Judge shall set a date and time for the Initial Hearing, which must be held within the following ten (10) working days. Article 21. Declaration of Default The judge declares the default of the requested party in the following cases: When the requested party does not answer the claim within the time limit established in Article 20, in spite of having been validly notified. When the requested party does not appear at the initial hearing or the evidentiary hearing, despite having been validly notified. In these cases, the Judge requests the appointment of a public defender to watch over the rights of the defendant in the process. The defendant may join the process at any time, subject to the stage of the process. Article 22. Initial Hearing 22.1. The Initial Hearing cannot be extended, unless the attorney of the requested party takes notice of the case in that act, in which case it may be extended only once for a period of ten (10) working days. 22.2. In the Initial Hearing the Judge verifies the interest and legitimacy of the procedural parties, and that the parties propose exceptions or annulments. 22.3. At the Initial Hearing the Judge decides on the exceptions, and the admissibility or rejection of the evidence offered. In no case shall the process be suspended for preliminary questions, preliminary defenses or any other procedural mechanism that seeks such purpose. 22.4. Exceptionally, when the case is complex, the Initial Hearing may be suspended and continued on the following working day, or in any case, within a maximum period of ten (10) working days. 22.5. Once the Initial Hearing is over, the Judge sets a date and time for the Evidentiary Hearing, which must be held within the following ten (10) working days. Article 23. Hearing for the taking of evidence 23.1. The evidentiary hearing is not extendable, unless the attorney of the requested party takes notice of the case in that act, in which case it may be extended only once for an equal period of ten (10) working days. 23.2. The evidentiary hearing is held in a single act, in the premises of the Court and the evidence admitted is examined with the direct participation of the Judge, under his responsibility. Exceptionally, when the case is complex, the hearing is suspended and continues on the following working day, and if this is not possible, within a maximum period of five (5) working days. 23.3. Only in the event that the judge decides ex officio to conduct an expert examination, after the presentation of evidence offered by the parties, and this is observed by one of the parties, a complementary hearing for the presentation of evidence is held, which must take place within a period of no more than ten (10) working days after the observation has been presented. 24.4 Once the evidentiary proceedings have been concluded, in any of the cases referred to in numbers 23.2 and 23.3, the Public Prosecutor, the Public Prosecutor, the attorney of the requested party and the attorney of the third party who has appeared in the proceedings, present their respective pleadings. 23.5. At the end of the hearing, the Judge issues a sentence within a period not exceeding fifteen (15) working days. Exceptionally, when the case is complex, the issuing of the sentence is extended by up to fifteen (15) additional working days. Article 24. Judgment of first instance The judgment issued in the first instance must rule on the merits or otherwise of the claim, based on the concurrent and reasonable indications, or on the pertinent, legal and timely evidence incorporated into the process. Article 25. Appeal of Judgment 25.1. Only an appeal may be filed against a judgment declaring the claim for extinguishment of ownership to be well founded or rejecting it, which is filed before the Judge who issued the judgment, within ten (10) working days of its notification. 25.2. The appeal is admitted or rejected within three (3) working days from its filing. If admitted, the file is forwarded to the respective Chamber. 25.3. The Chamber sets a date for the hearing of the case within fifteen (15) working days after the file is submitted and summons the interested parties to appear at the hearing and present their arguments and conclusions. 25.4. The Chamber resolves the appeal within fifteen (15) working days of the hearing of the case, which may exceptionally be extended for an equal period of time, when the case is complex, according to the criteria established in the rules of procedure. 24.5. If the Chamber annuls the sentence, the file returns to the Judge of first instance to issue a new sentence. If it confirms or revokes the sentence or issues any resolution in which it pronounces on the merits, the process of extinguishment of ownership is understood to be finalized. ... Article 32. Scope of the judgement The judgement that declares the claim to be well founded must be based on concurrent and reasonable indications, or on the relevant, legal and timely evidence incorporated in the proceedings. It must declare the extinction of all rights in rem, principal or accessory, as well as the nullity of any act on the property that is the object of the process or the confiscation of the property previously seized in favour of the State. It also orders that these assets be transferred to the administration of the National Programme of Seized Assets (PRONABI) within twenty-four (24) hours of the issuance of the sentence. However, this entity cannot dispose of those assets until the sentence becomes res judicata. … Article 34. Effects of the final judgement declaring the claim for forfeiture of ownership to be founded 34.1. The final judgement declaring the extinguishment of ownership has the effect of transferring the assets subject to it to the ownership of the State, represented by the National Programme of Seized Assets (PRONABI). 34.2. The Public Registrar registers the assets in the corresponding public registry, in favour of the State, represented by the National Programme of Seized Assets (PRONABI), under responsibility. For this purpose, only the official letter sent by the competent jurisdictional body or by the National Programme of Seized Assets (PRONABI) is required, attaching a certified copy of the resolution declaring the extinguishment of ownership of the assets.
