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The criminal charge faced by Jaime Pinto (in English)

As promised yesterday, here's a paste-out of the criminal charge faced by Jaime Pinto for corruption. It's long, so it gets to clutter up the blog during our lower-traffic weekend days. It's in English, just for fun.

We must underscore that as in any other country, the assumption of innocence until proven guilty is sacrosanct. That Jaime Pinto faces a criminal charge that carries a penalty of minimum three years and a maximum of fifteen years in prison does not yet mean that he's guilty of the charges.

The only thing I've changed is that I've edited out the name of the person and the DNI number (national identity card number) of the person who has brought the charges. However, I can confirm that to the best of my knowledge the person has nothing to do with Minera IRL. It is a totally separate case. I thank my source in the Peruvian judicial system, also unconnected to Minera IRL, for providing IKN with the document.




(Name of person), identified with ID Card No. (), domiciled for service of process at box () of the Lima Bar Association, fourth floor of the Courthouse; I thoughtfully say to you:

I.                   PRAYER FOR RELIEF

I FILE THIS CRIMINAL COMPLAINT against Mr. JAIME PINTO TABINI with ID Card No. 07809274, domiciled at Calle Los Nogales 362, dpto. 201, San Isidro, and e-mail; for committing the crime of Illegal Collusion, which is a crime provided in and punishable under Article 384º of the Criminal Code, committed against the State. Consequently, I REQUEST to your office to kindly admit this complaint to proceedings, to dispose the appropriate investigations and, in due course, to issue the corresponding fiscal judgement whereby the CRIMINAL LIABILITY of persons who are identified as perpetrators or involved participants of the facts matter of complaint is established; in view of the factual and legal arguments, which I explain below.


1.                 As part of the characteristics configuring the administrative concept of public official[1], criminal law relaxes the requirement of the endowment so that it assimilates the notion of public official to contracted agents and those who are occasionally involved in public service and to those who have lost their status of law officials. Likewise, it rationally adapts the other requirements to match the particular individuals linked by specific forms (temporary and occasional) in the management of public funds, or of social commitment[2]. Thus, we have that the criminal legal concept of public official has a wide, open and suitable regulatory conceptualization in accordance with the purposes of protection established in the criminal law.

2.                 Article 425º of the Criminal Code contains a strictly administrative concept in its first level by pointing out in the first paragraph that public official are those who are included the administrative service, for then being extended to those holding a political or trust positions, those who exercise, even if they are elected by popular decision, anyone who regardless of the labor regime which he / she is in, maintaining employment or contractual ties of any kind with entities and agencies of the State and that by virtue of that, performs functions in such entities or agencies, the administrators and trustees of seized or deposited wealth by relevant authority, even though they belong to particular individuals, the members of the Armed Forces and National Police, and others specified by the Political Constitution and the law.

3.                  Whenever the respondent had the status of a public official at the time of incurring in the facts alleged; the extension of the stature of limitation provided for in the last paragraph of Article 80 of the Criminal Code shall be applied, which states:

 “Article 80. - Statute of limitation for criminal action
The criminal action is time-barred in a time equal to the maximum penalty provided by law for the crime, if it involves deprivation of liberty.
In cases of crimes committed by public officials and servants against property of the State or bodies supported by it, or committed as part of criminal organizations, the statute of limitation is doubled.” [Our emphasis]

III.              BACKGROUND

1.     The Brady Plan was a strategy adopted in 1989 to restructure the debt of developing countries with commercial banks in the scope of Latin American debt crisis that was based on operations for reducing debt and the service of debt voluntarily made under market conditions.
In 1996, the Peruvian government approved the ‘Brady Plan’ which, according to the research by CEFID-AR, “considered a procedure for recalculation of interests and the exchange of the due and unpaid debt for new debt securities: Brady bonds,” however the commission headed by former Congressman Rafael VALENCIA-DONGO in 2002 found several cases of corruption in the renegotiation of external public debt between 1990 and 2000.
2.            On September 26 of that year, Elliott got from the Brussels Court of Appeal an order to seize the payment of interest on international bonds that Peru had scheduled to make through Euroclear - financial services company located in Belgium - and even though no funds were awarded, it threatened the country to fall into default, said US attorney Mark Cymrot.
3.            SBC, which bought Peruvian debt as financial agent of Peru since 1994, sold external debt securities valued at US$ 20 million to Elliott Associates, LP for US$ 11.4 million in 1996, breaching the contract that prevented the negotiation of securities without giving communication to the Peruvian government.


1.            JAIME PINTO TABINI joined the Ministry of Economy and Finance (MEF) in 1992 during the presidency of Carlos Boloña. PINTO TABINI said he only looked at the operations made by the Swiss Bank Corporation (SBC) on behalf of Banco de la Nacion through the Investment Program, so he had total lack of awareness of other operations made by the SBC. On September 30, 1996, he retired from MEF; but before his dismissal he left the team of external debt to continue working as a legal adviser of the MEF; having started a relationship with Elliot Associates, LP. That is, we are aware of the voyages of Mr. Pinto to the United States in 1996 when the problem with Elliot began. On the other hand, some witnesses interrogated by the Investigation Committee of the Peruvian Congress noted that when Elliot Associates LP bought the papers of the Peruvian debt, the MEF, in the person of Jaime Pinto, received the information from the operation in the same way as the whole information from the operations made by the Swiss Bank were received, although Pinto has denied this information in his defense before the Commission.
2.            Now, Mr. Pinto would have retired from the MEF on bad terms according to the press of that time due to a hard argument with Jorge Peschiera, Team Head. Then he began to work in the multinational company Telefonica; and later in the Estudio Muñiz, Forsyth, Ramirez, Pérez - Taimán y Luna Victoria. It is important to note that in these circumstances he went back to “visit” the MEF to talk to Jorge Camet and inform him that Elliot was willing to negotiate the debts it had with Peru, being that from February 1998, Jaime Pinto started to provide legal advice to Elliot Associates LP in the trial against Peru. Indeed, attorney Mark Cymrot (Representative of Peru) request in the United States that Mr. Jaime Pinto is moved away from representation since he had privileged and confidential information from the Ministry of Economy and Finance with regard to Peruvian external debt.
3.            Certainly, the SBC by contract could not sell papers of the Peruvian debt to a third party; and in the case of the transfer of papers of a third party, it should inform this to the Peruvian Government. Within the clauses of the contract it was stated that there was a term of 24 hours -after entering into an agreement for making the investment- to inform the Peruvian government who were the owners of promissory notes that it was buying back. The SBC committed the crime of use of privileged information on its own behalf since it bought at a lower price before the recognition as public debt. Moreover, according to paragraph 7 of the contract, it states that the SBC could not buy or sell by its own. The SBC kept this purchase between 13 and 15 months and then sell it to Elliot Associates, LP and not to the Peruvian Government, its fast track customer. That is way there was a breach of the contract with the Peruvian government, because it fouled by not changing the registration within the normal deadlines established (20 days).
4.            With regard to Peru, the entity who claimed for this sale was the General Directorate of Public Credit and not JAIME PINTO (who was in charge of receiving the report of all investment operations made by the SBC on behalf of Banco de la Nación, being aware of the sale made by the SBC to Elliot) and the Special Commission of Banco de la Nación (who had been in constant contact with the SBC). Paradoxically, Jaime Pinto was appointed by the MEF as the representative of Peru at the IDB since March 2001.
5.            As a result of the unlawful behavior of JAIME PINTO TABINI, Elliott Associates, LP - an investment fund founded by Paul Singer - received more than US$ 58 million from the Peruvian Government in September 2000, after winning a lawsuit in New York where it demanded the payment of US$ 66 million for a Peruvian debt that bought at an almost six times lower price.
6.            In 2003, the investigating commission presided by former Congressman Ernesto Herrera recommended to sue Jaime Pinto together with the Swiss Bank Corporation (SBC), after determining that the purchase of debt, by the so-called ‘vulture fund’, generated a damage to the State for the value of 50 million dollars, but these allegations were not raised. Jaime Pinto, responsible for supervising the contracts of the SBC (with whom it was in permanent contact), not only allowed this operation to be made but avoided to claim when the Peruvian government became aware of the purchase.

V.                                   LEGAL GROUNDS


1.            The crime of collusion provided for and sanctioned in Article 384° of the Criminal Code would have been committed by as follows:
Art. 384.- The official or public servant who, in contracts, supplies, auctions, price competitions or other similar transaction in which he is involved because of his office or because he is part of a special committee, defrauded the State or any State entity or agency, according to the law, arranging with stakeholders in agreements, adjustments, liquidations or supplies shall be punished by imprisonment of not less than three nor more than 15 years.”
2.            The core of the illegal behavior is defrauding the State or State entities or agencies by arranging with stakeholders in agreements, adjustments, liquidations or supplies. The typical behavior in relation to the times of execution and consummation is thus given by the willful arrangement with consequent patrimonial defrauding to the State interests. This defrauding involves any flagrant infringement of the duties attached to the position or to the orders of the special commission entrusted to public officials and servants. These make use of the powers to illegally vary, circumvent or replace the state or parastatal interests and claims, which by law must ensure and safeguard, opting instead for preferring different and even for prioritizing individual claims harmful to those that are typical of the public administration.
3.            What the active subjects violate with their behavior -which can be for action or omission- is the necessary state partiality in management, making it become a personal partiality of stakeholders, which is incompatible with the charge or commission and involves affecting the economic interests of the State or State agencies.
4.            To defraud the State and its agencies or entities, is thus, result of the violation of the special roles assumed by linked individuals, with consequent violation of the confidence given by the society and the State by deceiving the public interest. The official or servant assumes roles incompatible with those of professionally negotiating as it is a representative part of the public administration which contradict its powers or orders of the commission and affect the patrimonial expectations and interests of the State.

To you, Sir Prosecutor, I REQUEST: To kindly admit this complaint to proceedings, providing the relevant investigations, for the purpose of, in due course, determining the CRIMINAL RESPONSIBILITY of the respondent.

FIRST ADDITIONAL PLEADING: Find attached simple copy of the identification card of the claimant.
SECOND ADDITIONAL PLEADING: I request that, once this complaint is admitted, you kindly call for the following means of investigation:
1.     Investigative statement of the respondents.
2.     Investigative statement of the aggrieved party.

Lima, November 17, 2015

[1] The doctrine of public and administrative law states that to consider a person as a public official, he / she must have the following characteristics: a) origin of the title, b) formality in the exercise of function acts, c) existence of civil service, d) remunerated activity, e) state representative and f) power of decision.
[2] ROJAS VARGAS, Fidel. Delitos contra la Administración Pública. Editorial Grijley. 4th Edition. 2007. Lima, pp. 140.