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Case of Barrios Altos and La Cantuta v. Peru

  • Jorge Contesse (a1)

Extract

On May 30, 2018, the Inter-American Court of Human Rights (Court) ordered Peru to review the presidential pardon granted to former president and dictator Alberto Fujimori, who had been convicted and imprisoned for his role in serious human rights violations. The Peruvian Supreme Court obliged and, after examining the merits of the presidential pardon through a special procedure set up to assess the pardon's conformity with international human rights law, invalidated the pardon, effectively reinstating Fujimori's imprisonment for crimes against humanity.

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References

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1 See Case of Barrios Altos and La Cantuta v. Peru, Monitoring Compliance with Judgment (Inter-Am. Ct. H.R. May 30, 2018) (decision available only in Spanish).

2 Following the Inter-American Court's decision, the Supreme Court of Peru opened a “conventionality control procedure” to review Fujimori's pardon. In October 2018, the Superior Criminal Court ruled that the pardon lacked legal effect, pursuant to the Inter-American Court's May 2018 decision, and in February 2019, the Supreme Court upheld the decision. See Supreme Court of Peru, Special Criminal Chamber, Exp. No. 00006-2001-4-5001-SU-PE-01, Control de convencionalidad Alberto Fujimori Fujimori o Kenya Fujimori (Feb. 13, 2019). Alberto Fujimori returned to prison. He is scheduled to be released in February 2032.

3 See Barrios Altos v. Peru, Merits, Inter-Am. Ct. H.R. (ser. C) No. 75 (Mar. 14, 2001); La Cantuta v. Peru, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (ser. C) No. 162 (Nov. 29, 2006).

4 See Burt, Jo-Marie, Guilty as Charged: The Trial of Former Peruvian President Alberto Fujimori for Human Rights Violations, 3 Int'l J. Transitional Just. 384, 384 (2009); see also Mendez, Juan E., Significance of the Fujimori Trial, 25 Am. U. Int'l L. Rev. 649 (2010); Peru: Fujimori Convicted, Harv. Int'l L.J. Digest (Apr. 12, 2009), at http://www.harvardilj.org/2009/04/conviction-of-former-president-of-peru.

5 La Cantuta v. Peru, Inter-Am. Ct. H.R., Monitoring Compliance with Judgment, at para. 226.

6 In 1995, the Fujimori-controlled Congress adopted Law No. 26,479 which “granted an amnesty to all members of the security forces and civilians who had been accused, investigated, prosecuted or convicted, or who were carrying out prison sentences, for human rights violations.” See Barrios Altos v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 75, at para. 2(j).

7 See Almonacid Arellano v. Chile, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 154 (Sep. 26, 2006); Gelman v. Uruguay, Merits and Reparations, Inter-Am. Ct. H.R. (Ser. C) No. 221 (Feb. 24, 2011); Gomes Lund (“Guerrilha do Araguaia”) v. Brazil, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 219 (Nov. 24, 2010); Massacres of El Mozote and Surrounding Areas v. El Salvador, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 252 (Oct. 25, 2012).

8 Resolución Suprema No. 281-2017-JUS/CGP, published in the official gazette El Peruano (Dec. 24, 2017).

9 Ultimately, Kuczynski resigned in March 2018 amid a corruption scandal and before Congress held a second impeachment vote against him. The term “Fujimorismo” refers to a political movement created by the rise to power of Alberto Fujimori and his family that generated a culture of strong presidentialism and even authoritarian rule that eventually bred influential political parties in Peru.

10 Previously, the Court had issued eight compliance judgments on the Barrios Altos and La Cantuta cases. Barrios Altos v. Peru, Inter-Am. Ct. H.R. (ser. C) No. 75; La Cantuta v. Peru, Inter-Am. Ct. H.R., Monitoring Compliance with Judgment, at para. 1.

11 Pursuant to the doctrine of conventionality control, national judges examining a legislative or administrative measure's compatibility with the country's international human rights obligations must not only apply their national constitution, but also the American Convention of Human Rights. In conducting this assessment, the doctrine establishes, national judges must also follow the Convention as interpreted by the Inter-American Court. See Contesse, Jorge, The Final Word? Constitutional Dialogue and the Inter-American Court of Human Rights, 15 Int'l J. Const. L. 414 (2017).

12 The Inter-American Commission referred to pronouncements by international bodies establishing the incompatibility of amnesties and pardons for individuals convicted of crimes against humanity with international law (para. 17.b). It also noted that there are alternative measures a state could adopt to preserve an individual's dignity that are less harmful to the victims’ rights than a presidential pardon which renders punishment ineffective (para. 17.d). The Commission also argued that Fujimori's pardon was “illegitimate” as it was granted “in a context of political crisis caused by the impeachment process” (para. 17.e). The Commission further noted that the “supposedly humanitarian pardon … does not only disincentivize the ongoing reconciliation process, but it also affects the process of rescuing civic trust of human rights victims in their state, who one day offers them justice and the next one takes justice away from them” (para. 17.f).

13 The Court articulated this doctrine in prior compliance monitoring judgments in the Barrios Altos case and in other judgments. See Barrios Altos v. Peru, Monitoring Compliance with Judgment, paras. 55–57 (Inter-Am. Ct. H.R. Sept. 7, 2012); Furlan and Family v. Argentina, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 246, paras. 209–10 (Aug. 28, 2012); Constitutional Tribunal (Camba Campos) v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 268, para. 228 (Aug. 28, 2013); Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Inter-Am. Ct. H.R. (Ser. C) No. 270, para. 405 (Nov. 20, 2013).

14 It should be noted that the American Convention also does not establish the Court's power to exercise monitoring jurisdiction.

15 These factors are taken from Article 110 of the Rome Statute (“Review by the Court concerning reduction of sentence”) and Rule 223 (c)–(d) of the Court's Rules of Procedure and Evidence.

16 The Court noted that “it is upon domestic authorities to analyze whether Peruvian law contemplates alternative measures that can protect the life and integrity of Alberto Fujimori without resulting in the pardoning of his sentence by the executive” (para. 68). It added that “[i]f necessary, this Court will review whether or not the domestic decision observes this Court's order or whether such decision is an obstacle to the State's duty to investigate, prosecute and convict those responsible for human rights violations…” (para. 64).

17 Among these concerns, the Court notes the objectivity of the Medical Panel that assessed Fujimori's health condition (para. 69.a); the “substantial differences” among the minutes of the Penitentiary Medical Panel adopted on December 17, 2017, and another one adopted two days later (para. 69.b); the presidential pardon's failure to explain which “non-terminal grave diseases in an advanced, progressive, degenerative and incurable stage” Fujimori suffers from (para. 69.c); and the “context of political crisis” in which Fujimori obtained his pardon (para. 69.f).

18 See infra notes 6–7.

19 Supreme Court of Justice of Argentina, Simón, Julio Héctor y Otros, Fallos, 328:2056, Jun. 14, 2005. See Bakker, Christina A.E., A Full Stop to Amnesty in Argentina: The Simón Case, 3 Int'l Crim. Just. 1106 (2005).

20 Supreme Court of Chile, Caso Molco, No. 559-2004 (Dec. 13, 2006). See Cavallo, Gonzalo Aguilar, The Supreme Court and the Application of International Law: An Encouraging Process, 7 Estudios Constitucionales 91 (2009).

21 Barrios Altos, Inter-Am. Ct. H.R. (ser. C) No. 75, at para. 44.

22 Genie-Lacayo v. Nicaragua, Inter-Am. Ct. H.R. (ser. C) No. 30, para. 94 (Jan. 29, 1997). (“All it is empowered to do … is call attention to the procedural violations of the rights enshrined in the Convention … however, it lacks jurisdiction to remedy those violations in the domestic arena . . . .”).

23 See Saez, Macarena, In the Right Direction: Family Diversity in the Inter-American System of Human Rights, 44 N.C. J. Int'l L. 317 (2019) (explaining how the Court addressed issues that went beyond Costa Rica's request in the Advisory Opinion 24/17, on same sex marriage and gender identity).

24 Carlos Lopez, The Pardon of Fujimori: Amnesties and Remedies Before the Inter-American Court of Human Rights, Opinio Juris (Mar. 8, 2018), at http://opiniojuris.org/2018/03/08/the-pardon-of-fujimori-amnesties-and-remedies-before-the-inter-american-court-of-human-rights.

25 Commentators have observed that the Court's decision “arguably reflects an increasing awareness of its subsidiary role.” See Leiry Cornejo Chavez, Juan-Pablo Pérez-León-Acevedo & Jemima García-Godos, The Presidential Pardon of Fujimori: Political Struggles in Peru and the Subsidiary Role of the Inter-American Court of Human Rights, 13 Int'l J. Transitional Just. 328 (2019).

26 See Jorge Contesse, Resisting the Inter-American Human Rights System, 44 Yale J. Int'l L. __ (forthcoming 2019).

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