1         Introduction

On 24th December 2017, the former President of Perú, Alberto Fujimori, was granted a pardon that terminated his conviction for very serious offences committed in the context of his repressive regime. As I commented in a previous post, this measure gave rise to important criticism of political bias and violation of the international duty to prosecute and punish those responsible for gross human rights (HR) violations.

The Inter-American Court of Human Rights (IACtHR) was called upon to decide whether this pardon violated the international duties of the Peruvian State and, more precisely, the sanctions imposed in the Barrios Altos and La Cantuta cases. The IACtHR decision of 30th May 2018, in the framework of the monitoring compliance proceedings for Barrios Altos and La Cantuta, confirmed the incompatibility of the pardon with the duty to prosecute and punish those responsible for gross HR violations. It also urged the competent domestic courts to revise the pardon decision, to check both its compatibility with the Constitution and the legality of its application.

As a consequence, on the 3rd October 2018 the Peruvian Supreme Court (SC) issued a decision that declared the invalidity of the pardon and ordered the resumption of the sentence serving.

In this post, I will point out the key legal arguments of both the IACtHR (Section 2) and the Peruvian Supreme Court (3) ground their decisions. In addition, I will share some critical remarks on these arguments (4), and conclude that it would have been less controversial to declare the invalidity of this pardon solely for the incompatibility with domestic legislation.

2         The reasoning of the IACtHR

The reasoning of the IACtHR takes into account two separate grounds of invalidity of the contested pardon. On the one hand, it recalls the duty of all States parties to the American Convention of Human Rights (ACHR) to prosecute and punish those responsible of serious violations of HR and the parallel prohibition of amnesties, pardons and other waivers of punishment for the same crimes.. On the other hand, it echoes the applicants’ doubts on the compliance with Peruvian legislation on pardons. For instance, with the impartiality of the medical panel certifying a serious illness, and the requirement to ground the decision on a detailed reasoning.

The first set of reasons is more relevant to an international law perspective, because it may be applied to any pardon issued for serious HR violations, regardless of the specific and critical features of the concrete benefit to Fujimori. Here, we might summarise the IACtHR’s position into three basic arguments.

Firstly, the international duty to prosecute and punish for gross HR violations encompasses the claim for proportionality between the seriousness of the offence and the degree of culpability of the offender, and the sentence imposed. This principle applies not only at the moment when the sentence is imposed, but also throughout its serving (paras. 30-31).

Secondly, the execution of the sentence is included in the victims’ right to access to justice (paras. 30, 47), in that it prevents the convictions from being a mere declaration with no practical effects. As a consequence, during the serving of the sentence “it is impermissible to grant in an undue manner beneficial measures that may lead to a form of impunity” (para. 30).

Thirdly, any measure that affects a sentence of serious HR violations, even more when based on a discretionary power of the executive, must be balanced against the other interests at play (especially the right to have access to justice), in order to guarantee its compatibility with the minimum standards set out by the Constitution and HR law (para. 57). The task of striking this balance belongs to the domestic judiciary, which the IACtHR urged to take action.

3         The Decision by the Peruvian Supreme Court

The decision by the Peruvian SC to invalidate the pardon is largely grounded in the same arguments of the IACtHR. The SC applies the “conventionality test” (control de convencionalidad), as defined by the IACtHR (para. 152 ff.), to check the compatibility of the pardon with the obligations of the American Convention and the jurisprudence of the IACtHR. In this regard, the SC comes to the same conclusion, namely, that this measure violates both the obligation to prosecute and punish and the right to access to justice.

While the IACtHR showed a degree of self-restraint in identifying the alleged illegal or unconstitutional aspects of the measure from a national law perspective, the domestic Court deals with them quite extensively. Here, the SC finds that the political context in which the pardon was issued indicates that it was a benefit granted by then President Kuczynski in exchange for political support against his impeachment (paras. 207-222). Additionally, it points out several irregularities in the administrative procedure of adoption of the pardon:  the non-impartiality of one member of the medical panel nominated to evaluate Fujimori’s health conditions; inconsistencies between the two reports issued by this panel; inadequate description of both the illness that would justify this extraordinary measure and the conditions in jail that would impede an adequate medical treatment thereof (paras. 223-245). These factors, together with the surprising rapidity of the procedure (paras. 246-256) and the lack of adequate motivation of the resolution itself (paras. 256-281), lead to the conclusion that Fujimori did not have such a medical condition as to legitimise a pardon “for humanitarian reasons”. The SC therefore declared measure to be invalid.

4         Some critical remarks

Whereas the invalidation of Fujimori’s pardon should be very welcome, the reasoning of both decisions deserve a more careful assessment.

Firstly, the distinction between the concepts of crimes against humanity (CAH) and serious HR violations. Both the IACtHR and the SC apparently apply these categories indistinctly to describe the scope of the prohibition of pardons. Yet, the scope and the foundation of such prohibition varies depending on which of the categories it refers to.[1] Moreover, both Courts reiterates that the judgment that convicted Fujimori qualified the facts as CAH, whereas, as it was noted in a previous post, Fujimori was not formally convicted of CAH, but for ordinary crimes (kidnapping, murder and serious bodily harm).

Secondly, in reaffirming the absolute ban on amnesties, pardons and other waivers of punishment, both tribunals seem to ignore the very relevant differences among these measures. In fact, pardons only affect the serving of the sentence, without excluding the search for the truth, the official declaration of responsibility, nor reparation for victims. Therefore, pardons have a minor impact than amnesties,[2] as that they do not preclude the fulfilment of key goals: truth, acknowledgment, reparation.

Thirdly, by prohibiting pardons as a whole, insofar as they cover serious HR violations, the Courts close the door ona measure that might be very useful in certain situations. Not only are pardons normally envisaged in modern criminal systems, as a tool to take into account specific considerations of criminal policy, but they might also be necessary in transitional settings.[3] In transitional contexts, the need to strike a balance between countervailing objectives might lead to the adoption of special measures (like pardons). Here, the relevant criteria is whether these measures respond to good faith policy considerations[4] or, on the contrary, their goal is to grant impunity.

5         Conclusions

The pardon granted to Fujimori “for humanitarian reasons” was a clear fraud, so the declaration of its invalidity should be welcome. Yet, in my view, the specific case should not reflect a general ban on pardons, irrespective of the features of each case and of the reasons that might, in some cases, justify them under a criminal policy perspective. It would have been much more effective and less problematic to focus exclusively on the specific features that cast doubt on its legitimacy, namely, the lack of legal justification for such a measure, , the failure to comply with domestic legislation, and the illegitimate political motive behind Fujimori’s pardon.

[1] E. Maculan, ‘Derecho penal, obligaciones internacionales y justicia de transición’, 2018 (41) Revista penal, 117-135, at section 2.2. The Inter-American jurisprudence shows a clear trend towards an expansión of the scope of the prohibition: E. Malarino, ‘Las víctimas en la jurisprudencia de la Corte Interamericana de Derechos Humanos’, in A. Gil Gil, E. Maculan (eds.), La influencia de las víctimas en el tratamiento jurídico de la violencia colectiva (Dykinson, 2017), 23-44, at 41. Yet, a thorough analysis of the relevant HR jurisprudence and State practice leads to the conclusion that the prohibition is consolidated only in relation to the core international crimes: A. Seibert-Fohr, Prosecuting serious Human Rights Violations (OUP, 2009), 274 ff.

[2] J. Chinchón Álvarez, Derecho internacional y transiciones a la democracia y la paz (Parthenos, 2007), 459.

[3] In similar terms, K. McEvoy, Mallinder, ‘Amnesties in Transition: Punishment, Restoration and the Governance of Mercy’, 2012 (39) 3 Journal of Law and Society, 401-440, at 427-8.

[4] L. Mallinder, “Can Amnesties and International Justice be Reconciled?”, 2007 (1) International Journal of Transitional Justice, 208-230, at 221. no al indulto