The Inter American Court of Human Rights defers consideration of whether Peru should have pardoned Alberto Fujimori

 

Legal Adviser Hugo Relva reflects on the recent decision by the Inter-American Court of Human Rights (IACtHR) to allow up to six months for Peruvian courts to consider the legality of the pardon granted to Alberto Fujimori.

 

Fujimori pardon protest women
© Juan Vita/SOPA Images/Getty Images


On 30 May 2018, following a public hearing of victims and government representatives, the IACtHR did not deliver the decision that victims had hoped for – finding that the pardon granted to Alberto Fujimori was null and void. Instead, it deferred consideration of the matter by requesting Peru to report back within six months on the status of challenges to the pardon before national courts. Nevertheless, there is plenty in its decision and in the IACtHR’s jurisprudence to indicate that if the national courts do not reject the pardon, then the Inter-American Court could do it in the future.

In late December 2017, and in the middle of a big political crisis, the then president of Peru Pedro Pablo Kuczynski, granted an ‘humanitarian pardon’ to Alberto Fujimori who had served 12 years of a 25 year sentence for crimes against humanity. Purportedly based on his alleged ill-health (which was never demonstrated), many observers viewed it as a political concession to Fujimorism, which controls nearly two-thirds of the one-chamber Peruvian Congress.

Fujimori had been the head of state of Peru between 1990 and 2000. During this administration the security forces fought against Shining Path and other guerillas groups – responsible in turn for thousands of crimes – in an internal armed conflict. In repressing the armed opposition groups state agents committed all sort of crimes under international law and human rights violations.

In April 2009 the Special Criminal Chamber of the Peruvian Supreme Court unanimously found Alberto Fujimori criminally responsible for his role in orchestrating (‘autoría mediata por dominio de la voluntad en aparatos de poder organizados’) murders, kidnapping and causing serious bodily harm, all amounting to crimes against humanity. He was sentenced to the maximum penalty provided by the Penal Code at the time when those crimes were committed in the 1990s. The pronouncement was appealed Fujimori  and his conviction was subsequently confirmed later in 2009 by the plenary of the Supreme Court.

Following Alberto Fujimori’s release from prison at the end of 2017 several victims lodged a complaint before the IACtHRin the Case of Barrios Altos and Case of La Cantuta v. Peru Monitoring Compliance with Judgment. They argued that an ‘humanitarian pardon’ granted to a person responsible for crimes against humanity was not in accordance with the obligations of Peru under international law and, in particular, with the obligations imposed on Peru in the judgments in Barrios Altos and La Cantuta cases.

In these two cases the IACtHR had ruled that Peru should investigate and prosecute all those suspected of criminal responsibility for the extrajudicial executions and enforced disappearances committed by the Grupo Colina, a paramilitary group under the effective command and control of Alberto Fujimori. In addition, the IACtHR also ruled that national courts in Peru should impose on those found guilty of the crimes under international law and human rights violations appropriate penalties which take into account their grave nature.

It is worth noting that most victims and NGOs in Peru were not opposed to an early release for Alberto Fujimori, in case he were seriously ill. However, the idea of a pardon that would quash the conviction for crimes against humanity was strongly rejected. 

Amnesty International expressed a similar view in an amicus curiae brief to the IACtHR. It submitted that while international law does not prohibit the early release of a person convicted of crimes under international law on genuine humanitarian grounds, a pardon which wipes out a conviction for crimes against humanity, or annuls the sentence imposed, is not in accordance with a state’s obligation to investigate and, if there is sufficient admissible evidence, prosecute those suspected of such crimes. 

Although a decision by the IACtHR has now been put off until at least the end of the year, there is merit in some observers views that a decision on the merits might have been premature and perhaps the Court was right to wait for national proceedings in Peru be completed first.

There are also a number of interesting statements in the reasoning of the IACtHR’s 30 May decision that demonstrate it is not sidestepping the important issues in the case. For example, the Court stated that:

• serving a sentence is part of the right to justice (para. 30); 
• there is an increasing trend in international law to restrict or limit pardons for gross human rights violations, including the legislation of Argentina, Colombia, Ecuador, Honduras, Mexico, Nicaragua, Panama, Paraguay, Uruguay and Venezuela (paras. 44-45);
• a pardon unduly affects the obligation to impose, on those found guilty of crimes under international law or human rights violations, appropriate penalties which take into account the extreme seriousness of the crimes (para. 55).

Moreover, the IACtHR confirmed without reservation the principle of the precedence of international law over national law (para. 65) and found that Peru has not yet complied fully with the rulings in Barrios Altos and La Cantuta cases.

To sum it up, although the content of a final decision on the merits of the victims’ complaint may not be foreseen, there appear to be reasons to believe that the Court might conclude in the future that a pardon could not under any circumstances lead to the quashing of a conviction for crimes against humanity, or constitute a measure that perpetuates impunity. This would reinforce its findings in the Gutiérrez Soler vs. Colombia case (2005), that a state must: 

refrain from resorting to amnesty, pardon, statute of limitations and from enacting provisions to exclude liability, as well as measures aimed at preventing criminal prosecution or at voiding the effects of a conviction’