(June 17, 2011)
Arbitrarily releasing former President Alberto Fujimori from serving his full prison sentence for human rights crimes would be incompatible with Peru’s obligations under international law, Human Rights Watch said today. Fujimori recently received medical treatment, and there have been some calls for a “humanitarian pardon.”
Although early release of a seriously ill prisoner on humanitarian grounds is a legitimate practice, it should only be granted on the basis of an independent, thorough, and conclusive medical determination establishing the gravity of the prisoner’s health and the seriousness of the risk continued detention might pose to his deteriorating condition. The former president should not be granted special treatment not afforded to other convicted criminals, nor should an early release be seen to have the effect of absolving him of criminal responsibility for his human rights crimes, Human Rights Watch said.
“Any efforts to give Fujimori special treatment and disregard the seriousness of the terrible crimes of which the Peruvian courts found him guilty would be a major setback for the rule of law,” said José Miguel Vivanco, Americas director at Human Rights Watch. “An early custodial release should be considered only if it is based on a thoroughly credible and conclusive medical evaluation, and consistent with the standards and procedures applicable to any other convicted criminal in Peru.”
In recent weeks, several prominent politicians have advocated a “humanitarian pardon” for Fujimori due to his deteriorating health. The former president was sentenced in 2009 to 25 years in prison for human rights violations, including the extrajudicial execution of 15 people in the Barrios Altos district of Lima, the enforced disappearance and murder of nine students and a teacher from La Cantuta University, and two abductions.
On June 9, 2011, Fujimori was transferred to a hospital that specializes in treating cancer to be examined for a “mouth hemorrhage and deteriorating health condition,” a press account said. On June 14, a doctor who treated him at the hospital said he did not have a terminal cancer, and would return to his cell, where he would continue to receive medical treatment.
Among those who have called for a pardon are Congressman José Vargas from President Alan García’s party, and Rafael Rey, former minister of defense for the García administration and the vice presidential candidate in the country’s recent election for the party of Keiko Fujimori, the former president’s daughter, who lost the presidential election. Justice Minister Rosario Fernández told the news media she was unaware of a formal request to pardon Fujimori, but that the decision to issue a pardon was a presidential prerogative. Vice President Luis Giampetri Rojas called on president-elect Ollanta Humala to pardon Fujimori, media accounts said.
Others have said that a pardon might be permissible, but only under specific circumstances. José Peláez Bardales, the attorney general, held that pardoning Fujimori “should be duly justified” and that his doctors should present a report explaining the gravity of his illness.
President-elect Humala said that “nobody should die in prison, except people serving life sentences for abusing children,” according to media reports. Humala later said, though, that the issue of pardoning Fujimori was “not on the agenda.” An adviser for Humala, clarifying the president-elect’s stance, said that Fujimori would only be pardoned “if he was facing a terminal disease” and had “little time left … so he would not die in jail.”
The Peruvian Constitution grants the president the power to issue pardons. However, it also states that the rights recognized in the constitution should be interpreted in accordance with international treaties ratified by Peru. Under international law, states must investigate and punish perpetrators of serious human rights abuses, a duty that cannot be undermined by pardons, amnesties, or other domestic legal provisions that effectively bestow immunity on those responsible for such abuses.
Peru is a party to the American Convention on Human Rights. The Inter-American Court on Human Rights, whose judgments are binding on Peru, has ruled that “all amnesty provisions, and the establishment of measures designed to eliminate responsibility are inadmissible under the convention, 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.”
A decree regulating the Peruvian president’s power to grant pardons on humanitarian grounds also grants the president the authority to permit the person’s removal from prison (derecho de gracia), or to reduce the severity of a person’s sentence.