Autoría y participación en el delito de colusión: entre la teoría del dominio del hecho y la infracción del deber

Objective: The study seeks to analyze authority and participation in the crime of collusion in Peruvian criminal law, considering normative, doctrinal, and jurisprudential approaches. Materials and methods: A doctrinaire and jurisprudential analysis was applied based on the review of Plenary Agreements 2-2011/CIJ-166 and 3-2016/CIJ-166, as well as in the Constitutional Court (TC) Judgment 4554-2023-HC. Results: It was identified that the Peruvian penal system applies both the theory of infraction of duty and the of control of the domain. In the crime of collusion, only public officials can be considered perpetrators, while private individuals (extraneus) can be participants. The Plenary Agreements establish that the sanction of public official stems from the infraction of duty, but the TC has determined that it is necessary to prove the agreement, prioritizing control of the domain. Conclusions: Although the Plenary Agreements guide legal interpretation, the TC decisions prevail in guaranteeing fundamental rights, such as due process. This evidence an evolution in the understanding of criminal liability for crimes involving infraction of duty.