Human Rights Watch amicus curiae on Fujimori’s release

Cases: “La Cantuta v. Peru” and “Barrios Altos v. Peru”

Subject: Human Rights Watch amicus curiae on Fujimori’s release

José Miguel Vivanco, on behalf of Human Rights Watch, located at 350 Fifth Avenue, 34th floor, New York, United States, presents this amicus brief to the Honorable Inter-American Court of Human Rights for the February 2, 2018, hearing on whether Peru has complied with the rulings in “Barrios Altos v. Peru” and “La Cantatuta v. Peru.” For that purpose, we respectfully state:

1. Purpose and Summary of the Amicus Curiae Submission

Human Rights Watch respectfully requests that the Honorable Inter-American Court of Human Rights accept us as Friends of the Court in order to submit for its consideration factual and international human rights legal arguments that are relevant to its assesment on whether Peru has complied with the rulings in “Barrios Altos v. Peru” and “La Cantatuta v. Peru.”

The issue presented before this court is whether the December 24, 2017, release of former President Alberto Fujimori on alleged humanitarian grounds is consistent with Peru’s international human rights obligations. Human Rights Watch respectfully requests that this Honorable Court orders that the State of Peru abrogates the so-called humanitarian pardon and the “derecho de gracia” –which under Peruvian lawshields him from prosecution for any past crimes—issued by President Pedro Pablo Kuczynski for former President Alberto Fujimori.

Section II of this brief provides background on Human Rights Watch and our interest in the case. Section III includes a summary of the facts. In section IV we argue that Fujimori’s “humanitarian pardon” and “derecho de gracia” were politically motivated and do not appear to be the result of a fair, credible, and transparent process. In section V we argue that, particularly in light of these facts, Fujimori’s early release is inconsistent with international human rights law, including this Honorable Court’s case-law.

2. Background on Human Rights Watch and Our Interest in the Case

Human Rights Watch is a nongovernmental organization that has been dedicated to protecting human rights since 1978 (www.hrw.org). The organization is independent and impartial with respect to any political, religious, or economic organizations or movements. Human Rights Watch accepts no financial support, either directly or indirectly, from any government. It is headquartered in New York and has offices in several other cities in different continents. Human Rights Watch enjoys consultative status with the Organization of American States, the United Nations Economic and Social Council, and the Council of Europe, and maintains a working relationship with the Organization of African Unity.

As part of its mandate, Human Rights Watch uses judicial and quasi-judicial tools of domestic and international law to contribute to protecting and promoting human rights. That commitment has motivated this specific petition.

Human Rights Watch regularly monitors the human rights situation in Peru. In the past, we have documented serious atrocities committed under the Fujimori government, including the enforced disappearances and murders of nine students and a teacher from La Cantuta University.^[1] In addition, we presented charges and evidence that, in our opinion, justified Fujimori’s extradition to Peru and his subsequent prosecution and trial.^[2] Human Rights Watch has also repeatedly expressed concern regarding shortcomings in the advacement of justice for gross abuses committed during the Peruvian armed conflict, as well as previous attempts to release Fujimori.^[3]

3. Summary of the Facts

Alberto Fujimori imposed an autocratic regime in Peru. During his administration (1990-2000), he suspended Peru’s constitution, closed down the congress, and took control of the judiciary. Government forces carried out grave violations — including extrajudicial executions, disappearances, torture and rape — with little apparent effort to punish those responsible. Peru’s Commission of Truth and Reconciliation received reports of over 2,000 people who were allegedly killed or dissapeared by security forces between 1990 and 2000.^[4]

On March 14, 2001, this Honorable Court ruled on the “Barrios Altos v. Peru” case, involving the killing of 15 people, including a child, by members of the “Colina” government death squad. The Court ruled that amnesty laws No. 26479 and No. 26492 were incompatible with the American Convention on Human Rights and, consequently, lacked legal effect. It requested that Peru pursue serious efforts to investigate, prosecute, and punish the killings in Barrios Altos.^[5]

On November 29, 2006, the Court ruled on a similar case, “La Cantuta v. Peru,” which involved the enforced disappearance by the Colina squad of nine students and a professor from La Cantuta University, in 1991. The court concluded that Peru had failed to prosecute those responsible, and asked the country to take without delay the necessary actions to effectively conduct ongoing investigations and prosecute those implicated in the crimes.^[6]

In 2007, the Chilean Supreme Court authorized the extradition of Fujimori to Peru to face prosecution on a number of charges relating to serious violations of human rights, abuse of power and corruption. And on April 7, 2009, the Peruvian Supreme Court sentenced Fujimori to 25 years in prision for his role in the Barrios Altos massacre, the disappearance at La Cantuta University; and the kidnappings of Gustavo Gorriti, a journalist, and Samuel Dyer, a businessman. The court concluded that Fujimori’s crimes amounted to crimes against humanity.

Since Fujimori was convicted, his supporters have moved forward with several attempts to secure his release, including by issuing appeals and pressing for a humanitarian pardon.

On December 24, 2017, President Kuczynski announced that he had granted Fujimori a humanitarian pardon, as well as a “derecho de gracia,” which effectively grants him immunity from other criminal prosecutions.^[7] The government alleged that Fujimori suffers “non-terminal serious diseases, in an advanced, progressive, degenerative and uncurable stage, and that the prison conditions could place his life, health or integrity at serious risk.” Fujimori’s medicial diagnosis mentions a range of illnesses, including tongue cancer, hypertension, and depression.

When the “derecho de gracia” was granted Fujimori was facing criminal prosecution for the 1992 killing of six men in the Lima district of Pativilca by members of the “Colina” death squad.

4. A politically-motivated decision

Human Rights Watch has repeatedly argued that granting a humanitarian pardon to Fujimori would be consistent with international human rights law, so long as he was not granted special treatment and his release was the result of an independent, thorough, and conclusive medical determination establishing the gravity of his health status and the seriousness of the risk that continued detention might pose to his deteriorating condition.^[8]

However, as explained below, Peru’s political context and the procedure though which Fujimori’s pardon was granted strongly suggest that his release was politically-motivated and lacked guarantees of fairness, credibility, and transparency.

1.  Political context

Since President Kuczynski took office, Keiko Fujimori—Fujimori’s daughter and the runner-up in Peru’s tight 2016 elections—and other Fujimori supporters had been pressing the government to release him from prison. Keiko Fujimori’s party, Popular Force (Fuerza Popular) made it harder for President Kuczynski to govern, including by censuring many of his cabinet ministers.

In December 2017, Popular Force increased the pressure by initiating impeachment proceedings against President Kuczynski on allegations that he failed to disclose that his companies received payments from the Brazilian construction firm Odebrecht back when he was Peru’s Minister of Economy (2004-2005). However, on December 21, Kenji Fujimori, Alberto Fujimori’s son and a congressmen, led a break-away group of ten legislators from Popular Force who voted against impeachment, effectively saving President Kuzcynski. Alberto Fujimori was released three days later.

In Human Rights Watch’s opinion, the political context described suggests that Fujimori’s release was the result of a negotiation in response to growing pressure from Popular Force, including the attempt to impeach President Kuczynski. Similarly, the Inter-American Commission on Human Rights has stated that “the pardon took place amidst a political crisis in Peru” and “such context hinders the decision from being transparent and unquestionable.”^[9] And United Nations human rights experts described the pardon as “politically-motivated,” saying that the government “should not give in to political pressure and ignore its domestic and international obligations.”^[10]

2. Granting of the pardon

Additionaly, several aspects of the procedure through which Fujimori was released, taken together, cast serious doubts on the fairness, credibility, and transparency of the process. Among these factors are the following:

• Fujimori’s procedure was approved only six days after he requested it. While an expeditious process should certainly be required for all requests of humanitarian pardons, the swift approval of Fujimori’s pardon suggests that the decision was politically-motivated. As a point of comparison, the procedures involving the seven other convicts who were also pardoned or granted a “derecho de gracia” on December 24, 2017, took, on average, 139 days.^[11] All of them took at least a two months.
• One of the three doctors on the medical board in charge of evaluating Fujimori’s health had been his own private doctor.^[12] In contrast, in 2013, Peru’s Commission on Presidential Pardons recommended that, in order to “guarantee… objectivity and impartiallity” of the decision, Fujimori’s private doctor should not be part of the board.^[13] The Inter-American Commission on Human Rights has noted that “the personal doctor of Alberto Fujimori participated in the medical board that issued the advisory report recommending the grant of the pardon, which flagrantly violates the independence and objectivity requirement.”^[14]
• According to the decree pardoning Fujimori, one of the medical reports says that his “illness limits his capacity to talk fluently and to pronunce correctly.”^[15] Yet two days after his release, he posted a video of himself talking for over a minute on Twitter. No signs of such limitations appear in the video.^[16]
• The Peruvian government has denied the ombudsman’s office access to the files used to rule on the humanitarian pardon. Although the Peruvian Constitution provides that government offices are obliged to cooperate with the ombudsman’s office, the Justice Ministry denied a request to review the files, claiming that it was not related to the ombudsman’s “responsibilities of promoting human rights.”^[17]

5. International human rights standards

As shown above, Fujimori’s early release appears to be the result of a politically-motivated decision that lacked guarantees of fairness and transparency. Human Rights Watch submits that, in this context, the release undermines Peru’s duty to investigate, prosecute, and punish human rights abuses. It may also amount to an undue benefit that undermines the proportionality of the punishment required under international human rights law.

1. Duty to investigate, prosecute, and punish

Peru has an international obligation to investigate, prosecute, and punish war crimes, crimes against humanity, and serious violations of international human rights law.

First, human rights abuses for which Fujimori was convicted constitute war crimes committed during a non-international armed conflict and, according to Peru’s Supreme Court, amount to crimes against humanity.^[18] There is broad legal consensus that customary international law obligates states to investigate, prosecute and punish war crimes and crimes against humanity.^[19]

War crimes committed during a non-international armed conflict include violations of article 3 common to the four Geneva Conventions of August, 12, 1949, such as “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture” and “outrages upon personal dignity, in particular humiliating and degrading treatment,” as well as acts such as deliberate attacks on the civilian population, rape, and other forms of sexual violence and physical mutilation. Crimes against humanity include prohibited acts such as murder, and enforced disappearances when committed as part of a widespread or systematic attack directed against any civilian population.

Second, the crimes also constitute serious violations of international human rights law for which there exist multiple treaty obligations to investigate, prosecute and punish, in addition to customary law norms. For example, Peru is a party to both the International Covenant on Civil and Political Rights and the American Convention on Human Rights (ACHR).^[20] In this respect, this Honorable Court held in “Barrios Altos v. Peru” that:

all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible under the [American] convention [on Human Rights], because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.^[21]

Later, the court appeared to extend its case-law by forbidding pardons and other measures that undermine the effects of a criminal conviction for gross human rights abuses. For example, in “Gutierrez Soler v. Colombia”, which concerned the lack of prosecutions for a case of police torture, the Court noted that:

the State shall 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.^[22] (emphasis added)

Peru is also a party to international and regional conventions specifically on the prevention of enforced disappearances.^[23] These conventions incorporate the international law obligation to ensure effective investigations, prosecutions and punishment of enforced disappearances, as well as provision of proper remedy for the victims.

2. Proportionality of the punishment

Peru’s duty to investigate, prosecute, and punish human rights abuses includes an obligation to ensure that punishment for such crimes is proportionate to the gravity of the abuses. In this respect, this Honorable Court has stated that:

under the rule of proportionality, in the exercise of their obligation to prosecute such serious violations, States must ensure that the sentences imposed and their execution do not constitute factors that contribute to impunity, taking into account aspects such as the characteristics of the crime, and the participation and guilt of the accused.^[24]

The court noted that there is an “international legal framework” demanding proportionate punishment for gross human rights abuses.^[25] Indeed, several international human rights treaties ratified by Peru include this principle. The United Nations Convention against Torture, for example, establishes that crimes under the convention should be “punishable by appropriate penalties which take into account their grave nature.”^[26] The International Convention for the Protection of All Persons from Enforced Disappearance, for its part, requires state parties to make “the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness.”^[27] In addition, the UN Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity recommend that states impose “appropiate penalities” for serious human rights abuses.^[28]

This Honorable Court has noted that states cannot undermine the proportionality of the punishment by granting undue benefits to people serving sentences for gross human rights abuses.^[29] In the “Cepeda Vargas v. Colombia” case, for example, the Court addressed the political assassination of an opposition Senator by two sergeants of the Colombian Army who received prison benefits, ultimately reducing their 43 year sentence to 11 and 12 years respectively. The Court noted that the “undue granting of such benefits [during the execution of sentence] could eventually lead to a form of impunity, particularly in cases of the perpetration of serious human rights violations” and concluded that Colombia had made an “insufficient effort to prosecute and punish adequately” the killing.^[30]

Similarly, the Committee Against Torture addressed the issue of appropiate punishments and pardons, in its decision on “Kepa Urra Guridi v. Spain.”^[31] There, the Commitee ruled that the imposition of light penalties and the subsequent granting of pardons to the civil guards convicted for torture were incompatible with the duty to impose appropriate punishment under the Convention Against Torture.

6. Petition

For the abovementioned reasons, hoping that our input can contribute to the just resolution of this case, we ask this Honorable Court to:

1. Accept Human Rights Watch as a Friend of the Court in this case, and
2. Take into account the factual and legal arguments presented in this brief when it assesses whether Peru has complied with the rulings in “Barrios Altos v. Peru” and “La Cantatuta v. Peru,”
3. Request that the State of Peru abrogates the so-called humanitarian pardon and the “derecho de gracia” issued by President Pedro Pablo Kuczynski for former President Alberto Fujimori.

José Miguel Vivanco
Human Rights Watch