The standard of proof of knowledge beyondall reasonableness doubt in the administrative sanctioning procedure of Indecopi - Peru: a view from the presumption of innocence (presumption of lawfulness)

Abstract

Context: From the jurisprudence of the Inter-American Court of Human Rights, the criteria that make up due process have extensive application to all procedures, including the administrative sanctioning procedure followed by the National Institute for the Defense of Competition and Protection of Intellectual Property of Peru (hereinafter, Indecopi). Regarding the relationship between due process and national procedures of any nature (judicial or administrative), it is the duty of the States Parties to carry out a conventionality analysis, in the sense that any norm or action of the State must be analyzed not only in terms of the national constitutional norm, but also in terms of the international obligations assumed by the State in terms of Human Rights in general, and in terms of the American Convention in particular. Therefore, with a view to guaranteeing conventional and constitutional rights, the standard of proof applicable in administrative sanctioning proceedings for conducts that violate free competition must be specified, which can in no way be arbitrary or purely subjective.

Objective: The article analyzes the conventional and constitutional guarantees of presumption of innocence (presumption of lawfulness) and due process in the context of the administrative sanctioning procedure. The analysis of the presumption of innocence (presumption of lawfulness) is carried out from the perspective of the evidentiary rule (in relation to the burden of proof) and the rule of judgment (in relation to the standard of proof for the respective declaration of responsibility) with the purpose of demonstrating the high risk of violation of due process that exists in Indecopi’s administrative sanctioning procedure in the absence of a clear and unique applicable standard of proof.

Method: A literature review was conducted on the standard of proof in the administrative sanctioning procedure of Indecopi - Peru, the protection of the presumption of lawfulness of conduct and due process; from the interpretation made by Indecopi, the Constitutional Court of Peru, the Inter- American Court of Human Rights and, from a comparative perspective, Brazil’s Administrative Council for Economic Defense (Cade). The review was complemented with a heuristic and propositional analysis of the standard of proof applicable to such procedure.

Conclusions: The guarantee of due process is integrated by the presumption of innocence (presumption of lawfulness) with recognition in international instruments on Human Rights. The guarantee of the presumption of innocence, as a human right and fundamental right, has several aspects: i) as a rule of treatment in the process; ii) as a rule of evidence (related to the burden of proof); and iii) as a rule of judgment (related to the standard of proof for declaring responsibility). Taking into account that the presumption of innocence as an evidentiary rule requires sufficient evidentiary activity on the part of the investigating body, it must prove the existence of the legally relevant facts under investigation, for which it may use a variety of means of proof, including circumstantial evidence as indirect evidence. In light of the decisions issued by Indecopi, the standard of proof applicable in the administrative sanctioning procedure is that of “knowledge beyond reasonable doubt”, also known as “full conviction” or “certainty”, which requires an adequate and sufficient evidentiary activity by the investigating body.