Peru dispatch: Constitutional Court’s affirmation of ex-president’s pardon opposed by international tribunal privileges politics over rights – JURIST

Peruvian law students from the Facultad de Derecho y Ciencias Políticas, Universidad Nacional de San Antonio Abad del Cusco are reporting for JURIST on law-related events in and affecting Perú. All of them are from CIED (Centro de Investigación de los Estudiantes de Derecho, a student research center in UNSAAC’s faculty of law dedicated to spreading legal information and improving legal culture through study and research, promoting critical and reflective debate to contribute to the development of the country. Mégara Sophia La Torre Pino, a law student form UNSAAC and a member of CIED, files this dispatch from Cusco. 

On November 3rd, 1991 six hooded and armed members of the right-wing Grupo Colina death squad went to a “pollada” in Barrios Altos, Lima and began to shoot the attendees on suspicion of being terrorists. That day fifteen people died. On July 18th, 1992, nine students and one teacher from the National University of Education Enrique Guzman La Valle, better known as La Cantuta, were kidnapped. Days later, their remains were found in clandestine graves. These crimes weren’t investigated at the time. On the contrary, the Peruvian government issued laws of amnesty Nº 26479 and Nº 26492, covering them with impunity.

Subsequently the Inter-American Court of Human Rights issued rulings on “Barrios Altos Vs. Perú Case” (March 4th, 2001) and “La Cantuta Vs. Perú Case” (November 30th, 2007), in which, among other things, the Court held that the Peruvian state breached Articles 1.1 and 2 of American Convention on Human Rights by enacting and enforcing amnesty laws. Perú was ordered to conduct investigations and punish the people responsible for the violations of human rights that occurred in 1991-1992, during the term of the former Peruvian president Alberto Fujimori.

On April 7th, 2009, Peruvian ex-president Fujimori was found guilty by the Special Criminal Chamber of Perú as the mediate sponsor of the commission of qualified homicide – murder, under the aggravating circumstance of treachery to the detriment of twenty-five people, in connection to the events that occurred in Barrios Altos and La Cantuta. For this, he was sentenced to twenty-five years in prison.

However, on December 24th, 2017, during the term of the Peruvian former president Pedro Pablo Kuczynski, a pardon was granted for Fujimori, freeing him from serving the years of sentence imposed years before by the judiciary. Despite it being declared inapplicable by Peru’s Supreme Court of Preparatory Investigation, the Constitutional Court of Peru approved the habeas corpus presented by Fujimori’s defense on March 17th, 2022, meaning he was free to leave prison.

In response, the Inter-American Court of Human Rights issued a resolution dated April 7th, 2022 in the context of the request for interim measures and supervision of compliance with the judgment, which ordered the Peruvian state to refrain from executing that sentence of the Constitutional Court of Peru. That measure allowed the sentence imposed on Fujimori to continue its execution.

Nevertheless, last November 21st, the Constitutional Court of Peru issued a new resolution, referring the proceedings on the enforcement judge of habeas corpus to “proceed in accordance with its powers”. The Court sought to ignore the mandate established by the Inter-American Court of Human Rights and promote its ruling of March 17th, 2022. This has been demonstrated by the statements of the current president of that Court, Francisco Morales Saravia, who said: “The answer is yes (the release of Fujimori proceeds) because what we have solved was a clarification of the sentence. The rulings of the Tribunal must be complied with and enforced as the Supreme Court resolutions, but in this case the one that has the prevalence is the ruling of the Constitutional Court”. The Court issued a resolution essentially affirming ex-President Fujimori’s pardon on November 28.

In opposition to this ruling, the Inter-American Court of Human Rights on November 29th required the Peruvian state to submit a report about the execution of its resolution dated April 7th, 2022 that ordered the Constitutional Court to restore the effects of Fujimori’s pardon. Meanwhile, on December 01st, the First Preparatory Investigation Court of Ica ordered the return of the file to the Constitutional Court declaring its own incompetence for the execution, but claiming that there could be a situation that would make the execution of the pardon possible.

The Peruvian Courts have thus sought to ignore binding decisions established by the Inter-American Court of Human Rights, a supra-national organization to which our country is subject, having ratified the American Convention on Human Rights and its contentious jurisdiction. This behavior not only causes us to return to the scenario of impunity over the deaths in Barrios Altos and La Cantuta, but also shows us that institutions like the the Constitutional Court and the general judiciary value political benefits over safeguarding human rights.

Opinions expressed in JURIST Dispatches are solely those of our correspondents in the field and do not necessarily reflect the views of JURIST’s editors, staff, donors or the University of Pittsburgh.

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