On Christmas eve the current President of Peru, Pedro Pablo Kuczynski, pardoned the former president Fujimori who had served about 12 years of a sentence of 25 years for crimes against humanity (Resolución Suprema n° 281-2017-JUS of 24.12.2017). Leaving aside the particular political context in which this pardon was issued (a few days before a parliamentary motion to remove President Kuczynski for corruption allegations failed because members of Fuerza Popular, the political movement of Fujimori’s daughter, voted against it), the decision raises several legal questions under Peruvian and international law. One of the questions, which this post will consider is the legality of pardons for persons convicted of crimes against humanity, an issue that raises similar considerations to amnesties for such crimes. To start with, it is important to note that in Peru, in general, pardons cannot be issued arbitrarily. In the case of the so-called humanitarian pardon, there are two generic circumstances that deserve closer attention.
On the one hand, the decision is, of course, only legitimate if it is based on a genuine and sufficient humanitarian reason. Hence, there is no room for a fraudulent pardon – in which the invocation of a humanitarian reason only conceals the true motivation – nor is there such thing as a pro-liberty criterion that calls for a pardon if the humanitarian reason alone is not strong enough to justify ending the punishment. The definition of what is to be understood by “humanitarian reason” is not simple. It clearly exists when the inmate’s state of health shows that he or she is in the process of death or close to it, for example in case of a terminal disease (cf. lit. a of Art. 6.4 of Executive Decree [Decreto Supremo, DS] N° 004-2007-JUS, modified by Art. 5 of DS n° 008-2010-JUS). In more complex cases, in which such a medical (terminal) condition does not exist, a special justificatory ground must be demanded in order to comply with the exceptional nature of the humanitarian pardon. This could be the case of sanitary and mental conditions of special seriousness for which the circumstances of imprisonment could represent a serious risk to the life, health and integrity of the inmate (lit. b and c of Art. 6.4 of DS n° 004 -2007-JUS, modified by Art. 5 of DS n° 008-2010-JUS).
On the other hand, the granting of the pardon should not only take into account considerations of special prevention, which invoke a low probability that this particular inmate will commit similar crimes. Considerations of positive general prevention referring to the general confidence in the criminal law may also be relevant. In particular, the continuing execution of a penal sanction could reaffirm the communicative force of the punishment and the recognition of the particular seriousness of the relevant offences (Ambos, “The Legal Framework of Transitional Justice: A Systematic Study with a Special Focus on the Role of the ICC”, in Ambos/Large/Wierda (eds.), Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development, Berlin-Heidelberg: Springer, 2009, p. 32). In fact, this is the reason why old Nazi criminals are still prosecuted in Germany.
Against this background we can now discuss some concrete issues that arise from the presidential decree pardoning Fujimori. First of all, this is a complex case because Fujimori has been convicted for very serious crimes (“Barrios Altos” and “La Cantuta”) as a “most responsible” perpetrator. Moreover, the granting of the pardon is based on the existence of “serious non-terminal illnesses”. Given the “minimum standard of motivation” that the Peruvian Constitutional Court (CC) requires for pardons (legal ground (l.g.) 21 of the “Crousillat Case” of 25 Jan. 2011), as well as the historic importance of the decision and the complexity of the humanitarian reason invoked, the Resolution should have offered a more detailed reasoning. Also, the participation of Fujimori’s personal doctor in the Penitentiary Medical Board that recommended the humanitarian pardon generates doubts regarding its impartiality. The medical diagnosis itself is, even from a layman’s perspective, hardly convincing, especially with regard to the “advanced, progressive, degenerative and incurable stage” of the diseases mentioned. Last but not least, the Resolution does not sufficiently explain why the prison conditions put Fujimori’s life, health and integrity at a specific, higher risk than if he was at home. In fact, Fujimori was receiving special medical attention and was transferred to a hospital if necessary for safeguarding his life, health and integrity.
The Resolution is silent on the fact that Fujimori has been convicted for crimes against humanity (Ambos, “The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus”, JICJ 9 (2011), 143-4). It is difficult to see how a (partial) exemption from punishment can be justified for such crimes under current international law. In fact, the case law of the Inter-American Court of Human Rights is quite clear in this matter having judged in the famous “Barrios Altos vs. Peru” case that an amnesty for such crimes is inadmissible (Judgment of 14 March 2001, C Series n.o, para. 41). Admittedly, a pardon is a more limited exemption than an amnesty because it presupposes a trial and usually also a partial execution of the sentence, but it remains a (partial) exemption measure and for that reason the same international law limitations apply (Ambos, Impunidad y Derecho Penal Internacional, 2° ed. Buenos Aires: Ad-Hoc, 1999, pp. 141-2). If the respective sentence issued by a Court, in casu 25 years, is to account for the particular wrongfulness of the crimes committed and the culpability of the convict it is difficult to see how its premature termination can be justified. The only reason which, arguably, justifies such a premature termination is a humanitarian one which brings us back to the second circumstance above and the particular strict conditions, especially the demonstration of a terminal disease, attached to it. At any rate, a remedy could be sought in the Inter-American System of Human Rights. In addition, Peruvian domestic law provides for mechanisms that could lead to the Resolution’s annulment and subject, as indicated by the Constitutional Court in the “Crousillat Case”, the Resolution to a judicial review (l.g. 21 of the Exp. No. 03660-2010-PHC/CC).
Thus, all things considered, it is not easy to predict the outcome of the dispute around Fujimori’s pardon. In his favor one may invoke the partial fulfilment of the sentence (approximately twelve years), the need for a measure that provides for a definitive closure of the case and his state of health, being the first the strongest argument. Indeed, based on the partial execution of the sentence, Fujimori could argue that this is not a case of absolute impunity, but that he has already assumed responsibility and done some penance. Of course, Fujimori’s lukewarm apology to the Peruvian people does not help his case. In any event, in a possible proportionality test (thereto Ambos, “The Legal Framework”, op.cit., p. 49 ff.) several counterarguments could be put forward, among them the nature of the crimes, Fujimori’s status, the significance of the cases and, perhaps, the need to continue the execution of punishment for communicative reasons. In addition, it must be taken into account that the current Peruvian situation is not comparable to a post-conflict or transitional justice scenario where one may take a more flexible approach given the risks for peace involved (“worse abuses” argument). In fact, the political turmoil surrounding the presidential decision – a pardon in exchange of a (parliamentary) non-removal from office for corruption allegations – shows that the Peruvian democracy is rather stable allowing for all kind of negotiations and deals.