In December 2023, Alberto Fujimori, Peru’s President from 1990 to 2000, was released from prison by the order of the Peruvian Constitutional Court (CC). In response, the Inter-American Court of Human Rights (IACtHR) declared Peru in contempt of the Court and imposed a reinforced monitoring of its judgments in the Barrios Altos and La Cantuta cases. Although both decisions constitute a new chapter in Fujimori’s pardon history, uncertainty still exists with regard to a minimum reasoning to exclude arbitrary or fraudulent concession of pardons.
I. The CC’s Decision of 4 December 2023: Fujimori’s Release
The CC decision of 4 December 2023 which orders Fujimori’s release is a response to a judge’s refusal to execute a previous CC decision of 21 November 2023. This decision had ordered the execution of an earlier CC decision of 17 March 2022, which reinstated Fujimori’s pardon. The reasoning of the CC’s December 2023 decision, in essence, as follows: While the CC acknowledges that Fujimori’s conduct (for which he was convicted in the Barrios Altos and La Cantuta cases) amounts to serious human rights violations, and, being then head of state, Fujimori bears a special responsibility (para. 5), the Court considers its pardoning decision of 17 March 2022 as res judicata with the IACtHR having no authority to annul that decision (para. 12). To justify the pardon the CC invokes especially the completion of approximately two-thirds of Fujimori’s sentence, his “advanced age” (avanzada edad) and his “deteriorating health” (salud resquebrajada) (para. 14). Furthermore, the CC refers to Article 65 American Convention on Human Rights (ACHR), claiming that the IACtHR lacks any competence at the post sentencing supervision stage to order a State to implement specific measures. In the CC’s view, Article 65 ACHR only requires to report a possible non-compliance to the Organization of American States (OAS) (para. 28).
II. IACtHR Resolution of 19 December 2023: Peru in Contempt and Reinforcement of Supervision of Sentence Compliance regarding Barrios Altos and La Cantuta Cases
With its decision of 19 December 2023, the IACtHR reacted to the CC’s December 2023 decision. It declared Peru to be in contempt and ordered a reinforced supervision of the sentences in the Barrios Altos and La Cantuta cases, especially regarding the obligation to investigate, adjudicate, and sanction as reparation measures (para. 73). In a nutshell, the IACtHR argues as follows: The CC only sought to validate its 2022 pardoning decision ignoring what the IACtHR had previously established, that is, the standard for granting the pardon as set out in the 2018 IACtHR decision and the subsequent request from the Court of 7 April 2022 not to release Fujimori (para. 56). As to the substance of the pardon, the IACtHR indicates that the December 2023 CC decision erroneously advocates the necessity and proportionality of the pardon (para. 56). In fact, the IACtHR takes note of a medical report submitted by Peru after Fujimori’s release and suggests that Peru did not make a serious effort to consider objective information about Fujimori’s health before proceeding with his release (para. 57).
The IACtHR also takes issue with what it calls an inconsistent procedural behavior of the Peruvian State (para. 58). On the one hand, it notes Peru’s commitment to fulfilling the obligation to investigate, judge, and sanction those responsible in the Barrios Altos and La Cantuta cases, with Peru even suggesting the reinforced monitoring of these judgments (para. 58). On the other hand, however, the Court highlights Peru’s inconsistent attitude regarding the fulfillment of the mentioned obligation given the December 2023 CC decision and regarding the TC’s questioning of the IACtHR’s authority (para. 58). Finally, the IACtHR sees a wrong interpretation of Articles 65 and 68.1 ACHR by the CC (para. 59) and reaffirms its compétence de la compétence (Kompetenz Kompetenz). In that context, the IACtHR also holds that the December 2023 CC decision eliminates all useful effects of Articles 62.1, 63, 65, and 68.1 ACHR (para. 61).
III. New Arguments for a Pardon? Does the IACtHR have the competence to monitor Compliance with its Judgments?
The analysis of both 2023 decisions of the CC and the IACtHR allows for two preliminary conclusions: on the one hand, the CC decision does not provide any new substantive arguments in favor of a pardon; on the other hand, the IACtHR’s response essentially serves as a reminder of its competence and authority with regard to the monitoring of compliance with judgments and the limitations of this competence.
In terms of the substance of the pardon, the IACtHR demonstrates that the CC decision fails to convince as to the gist of the issue: the balancing and ultimately reconciliation of Fujimori’s right to life and health (which speak in favour of a pardon) with the victims’ right to access justice (which speaks against a pardon). The CC should have taken into account the standard set out in the 2018 IACtHR decision, especially examining the connection between the imprisonment and a serious risk to Fujimori’s life and/or health. In fact, the 2023 IACtHR decision constitutes a stark reminder of the necessity for such a justification (see para. 56). At the same time, the IACtHR does not categorically exclude the granting of a humanitarian pardon but stresses the need of a sufficiently reasoned justification focusing on the above-mentioned interests. This is convincing since, as already argued before on this blog, granting a pardon is only legitimate if it is rooted in a genuine and sufficiently demonstrated humanitarian reason.
Unfortunately, the 2023 CC decision has not complied with the IACtHR guidance and lacks a solid and convincing foundation. On one hand, references to phrases like “advanced age” or “deteriorating health” do not suffice to justify the necessity or proportionality of the pardon. To be sure, while an “advanced age” can be considered as an indication of a general and progressive danger to the integrity and culmination of a person’s life, it does not necessarily demonstrate the specific risk to the respective person’s life and/or health. Moreover, such an affirmation should be supported by a relevant medical diagnosis supporting the alleged risk. Instead, the medical report mentioned by the 2023 IACtHR decision speaks in favor of the stability of Fujimori’s health and thus demonstrates how little effort the Peruvian State undertook to objectively verify the actual state of Fujimori’s health before proceeding with his release. Additionally, the medical care given to Fujimori speaks against the necessity of a pardon.
On the other hand, admittedly, the CC’s reference to Fujimori’s completion of two-thirds of the sentence neutralizes the argument that a pardon for Fujimori would imply impunity (see here). It is undisputed, and also recognized by the 2023 CC decision, that this sentence results from a legitimate domestic decision, which took into account the gravity of the crimes and Fujimori’s degree of involvement. While this sentence, as in principle any, calls for its full execution, it would be plainly incorrect, as shown elsewhere, to justify such a full execution with an alleged human right to a penalty. Perhaps the most important argument against such a full execution is the ever-present risk of a cruel treatment, that is, that the sentence exceeds the “inevitable level of inherent suffering”, which itself is of concern to the IACtHR (see decision of 30 May 2018, para 49). To be sure, the 2023 IACtHR decision does not invoke a victims’ right to a penalty or something along those lines but rather aims to prevent an arbitrary decision, bare of any judicial control in line with the IACtHR’s established standard, which would therefore interfere with the victims’ right to access to justice (see IACtHR, decision of 19 December 2023 para. 55). In other words, one must distinguish between the legitimate right of victims to a judicial (including penal) remedy and a (human) right to a (certain, long) penalty. The only line which then can be drawn between a legitimate and an arbitrary pardon runs along the difference between a convincingly and an unconvincingly reasoned pardoning decision, i.e., there is a minimum of reasoning required to justify a pardon.
The minimum reasoning requirement or principle shows its relevance especially in a case like the one before us where the political context surrounding the 2017 pardon —of which the IACtHR is acutely aware (decision of 30 May 2018, para. 69, lit. f)— produces the plausible suspicion that the pardon was based on purely political and arbitrary considerations, namely as a quid pro quo for (former President’s) Kuczynski’s stay in power. Indeed, contrary to what the CC claimed in its decision of 17 March 2022, this narrative would not lose its persuasiveness because Kuczynski had expressed his willingness to grant the pardon before a motion of vacancy against him was promoted. For Kuczynski being willing to pardon Fujimori does not rule out that he later materialized that willingness and used the pardon precisely to avoid his removal. Apart from that, on a more principled level, (judicial) control over a discretionary decision of the executive power, as promoted by the intervention of the IACtHR, should also be in the utmost interest of a State which considers itself a true Rechtsstaat. For only this control allows to make sure that State officials exercise their power appropriately and not arbitrarily.
As to the challenge by the CC to the IACtHR’s competence regarding the monitoring of (post-sentence) compliance, the Court’s response constitutes more a reminder than an innovation. It essentially reproduces the essence of previous pronouncements (see also Baena Ricardo and others vs. Panama). The CC’s refusal to comply with the IACtHR’s demands invoking the finality (res judicata) of a national decision brings to mind the Fontevecchia and D’Amico vs. Argentina case. Yet, contrary to what has been argued in the Peruvian pardon discussion, this case cannot be invoked as a precedent to justify non-compliance with IACtHR decisions invoking the hierarchy of a national court. For in that case, Argentina did comply with the IACtHR by issuing a note regarding the incompatibility of a decision of its Supreme Court with the ACHR (see IACtHR, Fontevecchia y D’Amico vs. Argentina, para. 9, 10).
In sum, it is incorrect to assert, as done by the CC (decision of 4 December 2023, para 12), that the IACtHR does not have the authority to order a State, in the context of supervision of sentencing compliance, to not execute a decision of a national court. The IACtHR is competent to decide if there has been a violation of the Convention and order the corresponding reparations. Furthermore, the Court can supervise domestic measures as to the implementation of its decisions and instruct States accordingly. In other words, the Court can require a State to implement the reparations ordered and to take the necessary domestic measures or eliminate those that prevent the implementation. Of course, the IACtHR has no proper machinery to enforce its decisions but for this very reason it must rely on the cooperation and compliance of the State parties of the Convention.
In the case at hand, the pardon constitutes a measure that conflicts with the obligation to sanction serious human rights violations. Thus, the IACtHR can request that the pardon not be implemented if its granting is not reasonably justified. This competence of the IACtHR, to monitor compliance with its judgment in the Barrios Altos and La Cantuta, must not be disturbed by the highest judicial organ of the respective State ignoring the Court’s case law. In this sense, the recent declaration by the Peruvian government on 21 December 2023, arguing that Peru is in compliance with the IACtHR, is not only irrelevant but also incorrect. By using its own criteria to assess compliance with the IACtHR’s approach, the Peruvian government, as the addressee of the conventional obligation, makes itself a judge in its own case. To be sure, Peru has so far recognized the IACtHR’s competence (in the Barrios Altos y La Cantuta cases) (see here and here) and this could also play a role for the Court to consider its current procedural behavior as inconsistent and/or ambiguous. In this sense, the IACtHR’s clear statement that Peru has violated Articles 63(2) and 68(1) ACHR (decision of 19 December 2023, para. 63, 73) is to be welcomed. Additionally, Peru also violates the broader pacta sunt servanda principle (Articles 26 and 27 of the Vienna Convention on the Law of Treaties) by disrespecting the ACHR and its Court taking advantage of its factual implementation deficit under the guise of a competence deficit and invoking a superior hierarchy of domestic organs.
IV. Final Reflection
Taking a human rights protection system seriously implies that States accept the binding force of the decisions of its Court. Of course, these decisions may be wrong and impact the rights of third parties. Precisely for this reason, Peru should have focused on addressing the gist of the issue of Fujimori’s pardon, as correctly set out by the IACtHR, and provided a consistent argumentation. While this demand has nothing to do with a strive for revenge by way of imposing a cruel punishment, it cannot be allowed either that the State’s pardoning power is arbitrarily used. Instead, the pardoning State must convincingly demonstrate that its granting of a pardon does not constitute an arbitrary exercise of power but is motivated by a genuine concern for the health or integrity of the respective beneficiary. Of course, this is not a simple balancing exercise. While every imprisoned person has the right to have a legitimate expectation to regain freedom before death, this expectation is independent of a pardon. At the same time the depth and level of argumentation to justify a pardon, taking into account the advanced age of the respective person, should comply with a minimum of reasoning that allows to rule out a merely arbitrary or fraudulent granting of the respective pardon. This cannot be achieved by circumventing the issue and/or undermining the IACtHR’s standard but only by providing solid and sufficient arguments to support the respective pardon.
Pardon for Former Peruvian President Alberto Fujimori: New Chapter, Same Plot?
Written by Kai Ambos and Gustavo UrquizoIn December 2023, Alberto Fujimori, Peru’s President from 1990 to 2000, was released from prison by the order of the Peruvian Constitutional Court (CC). In response, the Inter-American Court of Human Rights (IACtHR) declared Peru in contempt of the Court and imposed a reinforced monitoring of its judgments in the Barrios Altos and La Cantuta cases. Although both decisions constitute a new chapter in Fujimori’s pardon history, uncertainty still exists with regard to a minimum reasoning to exclude arbitrary or fraudulent concession of pardons.
I. The CC’s Decision of 4 December 2023: Fujimori’s Release
The CC decision of 4 December 2023 which orders Fujimori’s release is a response to a judge’s refusal to execute a previous CC decision of 21 November 2023. This decision had ordered the execution of an earlier CC decision of 17 March 2022, which reinstated Fujimori’s pardon. The reasoning of the CC’s December 2023 decision, in essence, as follows: While the CC acknowledges that Fujimori’s conduct (for which he was convicted in the Barrios Altos and La Cantuta cases) amounts to serious human rights violations, and, being then head of state, Fujimori bears a special responsibility (para. 5), the Court considers its pardoning decision of 17 March 2022 as res judicata with the IACtHR having no authority to annul that decision (para. 12). To justify the pardon the CC invokes especially the completion of approximately two-thirds of Fujimori’s sentence, his “advanced age” (avanzada edad) and his “deteriorating health” (salud resquebrajada) (para. 14). Furthermore, the CC refers to Article 65 American Convention on Human Rights (ACHR), claiming that the IACtHR lacks any competence at the post sentencing supervision stage to order a State to implement specific measures. In the CC’s view, Article 65 ACHR only requires to report a possible non-compliance to the Organization of American States (OAS) (para. 28).
II. IACtHR Resolution of 19 December 2023: Peru in Contempt and Reinforcement of Supervision of Sentence Compliance regarding Barrios Altos and La Cantuta Cases
With its decision of 19 December 2023, the IACtHR reacted to the CC’s December 2023 decision. It declared Peru to be in contempt and ordered a reinforced supervision of the sentences in the Barrios Altos and La Cantuta cases, especially regarding the obligation to investigate, adjudicate, and sanction as reparation measures (para. 73). In a nutshell, the IACtHR argues as follows: The CC only sought to validate its 2022 pardoning decision ignoring what the IACtHR had previously established, that is, the standard for granting the pardon as set out in the 2018 IACtHR decision and the subsequent request from the Court of 7 April 2022 not to release Fujimori (para. 56). As to the substance of the pardon, the IACtHR indicates that the December 2023 CC decision erroneously advocates the necessity and proportionality of the pardon (para. 56). In fact, the IACtHR takes note of a medical report submitted by Peru after Fujimori’s release and suggests that Peru did not make a serious effort to consider objective information about Fujimori’s health before proceeding with his release (para. 57).
The IACtHR also takes issue with what it calls an inconsistent procedural behavior of the Peruvian State (para. 58). On the one hand, it notes Peru’s commitment to fulfilling the obligation to investigate, judge, and sanction those responsible in the Barrios Altos and La Cantuta cases, with Peru even suggesting the reinforced monitoring of these judgments (para. 58). On the other hand, however, the Court highlights Peru’s inconsistent attitude regarding the fulfillment of the mentioned obligation given the December 2023 CC decision and regarding the TC’s questioning of the IACtHR’s authority (para. 58). Finally, the IACtHR sees a wrong interpretation of Articles 65 and 68.1 ACHR by the CC (para. 59) and reaffirms its compétence de la compétence (Kompetenz Kompetenz). In that context, the IACtHR also holds that the December 2023 CC decision eliminates all useful effects of Articles 62.1, 63, 65, and 68.1 ACHR (para. 61).
III. New Arguments for a Pardon? Does the IACtHR have the competence to monitor Compliance with its Judgments?
The analysis of both 2023 decisions of the CC and the IACtHR allows for two preliminary conclusions: on the one hand, the CC decision does not provide any new substantive arguments in favor of a pardon; on the other hand, the IACtHR’s response essentially serves as a reminder of its competence and authority with regard to the monitoring of compliance with judgments and the limitations of this competence.
In terms of the substance of the pardon, the IACtHR demonstrates that the CC decision fails to convince as to the gist of the issue: the balancing and ultimately reconciliation of Fujimori’s right to life and health (which speak in favour of a pardon) with the victims’ right to access justice (which speaks against a pardon). The CC should have taken into account the standard set out in the 2018 IACtHR decision, especially examining the connection between the imprisonment and a serious risk to Fujimori’s life and/or health. In fact, the 2023 IACtHR decision constitutes a stark reminder of the necessity for such a justification (see para. 56). At the same time, the IACtHR does not categorically exclude the granting of a humanitarian pardon but stresses the need of a sufficiently reasoned justification focusing on the above-mentioned interests. This is convincing since, as already argued before on this blog, granting a pardon is only legitimate if it is rooted in a genuine and sufficiently demonstrated humanitarian reason.
Unfortunately, the 2023 CC decision has not complied with the IACtHR guidance and lacks a solid and convincing foundation. On one hand, references to phrases like “advanced age” or “deteriorating health” do not suffice to justify the necessity or proportionality of the pardon. To be sure, while an “advanced age” can be considered as an indication of a general and progressive danger to the integrity and culmination of a person’s life, it does not necessarily demonstrate the specific risk to the respective person’s life and/or health. Moreover, such an affirmation should be supported by a relevant medical diagnosis supporting the alleged risk. Instead, the medical report mentioned by the 2023 IACtHR decision speaks in favor of the stability of Fujimori’s health and thus demonstrates how little effort the Peruvian State undertook to objectively verify the actual state of Fujimori’s health before proceeding with his release. Additionally, the medical care given to Fujimori speaks against the necessity of a pardon.
On the other hand, admittedly, the CC’s reference to Fujimori’s completion of two-thirds of the sentence neutralizes the argument that a pardon for Fujimori would imply impunity (see here). It is undisputed, and also recognized by the 2023 CC decision, that this sentence results from a legitimate domestic decision, which took into account the gravity of the crimes and Fujimori’s degree of involvement. While this sentence, as in principle any, calls for its full execution, it would be plainly incorrect, as shown elsewhere, to justify such a full execution with an alleged human right to a penalty. Perhaps the most important argument against such a full execution is the ever-present risk of a cruel treatment, that is, that the sentence exceeds the “inevitable level of inherent suffering”, which itself is of concern to the IACtHR (see decision of 30 May 2018, para 49). To be sure, the 2023 IACtHR decision does not invoke a victims’ right to a penalty or something along those lines but rather aims to prevent an arbitrary decision, bare of any judicial control in line with the IACtHR’s established standard, which would therefore interfere with the victims’ right to access to justice (see IACtHR, decision of 19 December 2023 para. 55). In other words, one must distinguish between the legitimate right of victims to a judicial (including penal) remedy and a (human) right to a (certain, long) penalty. The only line which then can be drawn between a legitimate and an arbitrary pardon runs along the difference between a convincingly and an unconvincingly reasoned pardoning decision, i.e., there is a minimum of reasoning required to justify a pardon.
The minimum reasoning requirement or principle shows its relevance especially in a case like the one before us where the political context surrounding the 2017 pardon —of which the IACtHR is acutely aware (decision of 30 May 2018, para. 69, lit. f)— produces the plausible suspicion that the pardon was based on purely political and arbitrary considerations, namely as a quid pro quo for (former President’s) Kuczynski’s stay in power. Indeed, contrary to what the CC claimed in its decision of 17 March 2022, this narrative would not lose its persuasiveness because Kuczynski had expressed his willingness to grant the pardon before a motion of vacancy against him was promoted. For Kuczynski being willing to pardon Fujimori does not rule out that he later materialized that willingness and used the pardon precisely to avoid his removal. Apart from that, on a more principled level, (judicial) control over a discretionary decision of the executive power, as promoted by the intervention of the IACtHR, should also be in the utmost interest of a State which considers itself a true Rechtsstaat. For only this control allows to make sure that State officials exercise their power appropriately and not arbitrarily.
As to the challenge by the CC to the IACtHR’s competence regarding the monitoring of (post-sentence) compliance, the Court’s response constitutes more a reminder than an innovation. It essentially reproduces the essence of previous pronouncements (see also Baena Ricardo and others vs. Panama). The CC’s refusal to comply with the IACtHR’s demands invoking the finality (res judicata) of a national decision brings to mind the Fontevecchia and D’Amico vs. Argentina case. Yet, contrary to what has been argued in the Peruvian pardon discussion, this case cannot be invoked as a precedent to justify non-compliance with IACtHR decisions invoking the hierarchy of a national court. For in that case, Argentina did comply with the IACtHR by issuing a note regarding the incompatibility of a decision of its Supreme Court with the ACHR (see IACtHR, Fontevecchia y D’Amico vs. Argentina, para. 9, 10).
In sum, it is incorrect to assert, as done by the CC (decision of 4 December 2023, para 12), that the IACtHR does not have the authority to order a State, in the context of supervision of sentencing compliance, to not execute a decision of a national court. The IACtHR is competent to decide if there has been a violation of the Convention and order the corresponding reparations. Furthermore, the Court can supervise domestic measures as to the implementation of its decisions and instruct States accordingly. In other words, the Court can require a State to implement the reparations ordered and to take the necessary domestic measures or eliminate those that prevent the implementation. Of course, the IACtHR has no proper machinery to enforce its decisions but for this very reason it must rely on the cooperation and compliance of the State parties of the Convention.
In the case at hand, the pardon constitutes a measure that conflicts with the obligation to sanction serious human rights violations. Thus, the IACtHR can request that the pardon not be implemented if its granting is not reasonably justified. This competence of the IACtHR, to monitor compliance with its judgment in the Barrios Altos and La Cantuta, must not be disturbed by the highest judicial organ of the respective State ignoring the Court’s case law. In this sense, the recent declaration by the Peruvian government on 21 December 2023, arguing that Peru is in compliance with the IACtHR, is not only irrelevant but also incorrect. By using its own criteria to assess compliance with the IACtHR’s approach, the Peruvian government, as the addressee of the conventional obligation, makes itself a judge in its own case. To be sure, Peru has so far recognized the IACtHR’s competence (in the Barrios Altos y La Cantuta cases) (see here and here) and this could also play a role for the Court to consider its current procedural behavior as inconsistent and/or ambiguous. In this sense, the IACtHR’s clear statement that Peru has violated Articles 63(2) and 68(1) ACHR (decision of 19 December 2023, para. 63, 73) is to be welcomed. Additionally, Peru also violates the broader pacta sunt servanda principle (Articles 26 and 27 of the Vienna Convention on the Law of Treaties) by disrespecting the ACHR and its Court taking advantage of its factual implementation deficit under the guise of a competence deficit and invoking a superior hierarchy of domestic organs.
IV. Final Reflection
Taking a human rights protection system seriously implies that States accept the binding force of the decisions of its Court. Of course, these decisions may be wrong and impact the rights of third parties. Precisely for this reason, Peru should have focused on addressing the gist of the issue of Fujimori’s pardon, as correctly set out by the IACtHR, and provided a consistent argumentation. While this demand has nothing to do with a strive for revenge by way of imposing a cruel punishment, it cannot be allowed either that the State’s pardoning power is arbitrarily used. Instead, the pardoning State must convincingly demonstrate that its granting of a pardon does not constitute an arbitrary exercise of power but is motivated by a genuine concern for the health or integrity of the respective beneficiary. Of course, this is not a simple balancing exercise. While every imprisoned person has the right to have a legitimate expectation to regain freedom before death, this expectation is independent of a pardon. At the same time the depth and level of argumentation to justify a pardon, taking into account the advanced age of the respective person, should comply with a minimum of reasoning that allows to rule out a merely arbitrary or fraudulent granting of the respective pardon. This cannot be achieved by circumventing the issue and/or undermining the IACtHR’s standard but only by providing solid and sufficient arguments to support the respective pardon.
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