In May 2018. American Convention and judgments of the Court prevail over national law. For a pardon, health, payment of civil damages, repentance and collaboration must be seen.
At the request of the families and representatives of the victims, on May 30, 2018, when analyzing the humanitarian pardon granted to Alberto Fujimori, the Inter-American Court of Human Rights established a series of parameters that should be taken into account when granting a humanitarian pardon a person convicted of serious crimes of human rights violations.
In principle, the Court established that all the authorities of a State party to the American Convention , including judges and organs of the administration of justice, have the obligation to exercise a “control of conventionality”, within the framework of their respective competencies and procedural regulations, but with an interpretation and application of national law consistent with international obligations.
“In this task they must take into account not only the American Convention and other inter-American instruments, but alsothe interpretation that the Inter-American Court has made of these in a specific case”,stressed.
It noted that the American Convention and the Court’s rulings prevail at all times “on internal regulations, interpretations and practices that obstruct compliance with the provisions of a given case.”
Later, although the Court reserved its opinion at that time on Fujimori’s situation, while waiting for the Peruvian justice to evaluate the supreme decree that granted the humanitarian pardon and right of grace, it did make two clarifications.
The Inter-American Court considered that it could be feasible to grant a humanitarian pardon to the person responsible for serious crimes against humanity, but for this, not only the state of health of the inmate should be taken into account.
“Because these are serious human rights violations and taking into account the development of International Criminal Law, it is necessary that, in addition to the health situation of the convicted person, other factors or criteria be taken into account, such as: that a considerable part of the custodial sentence and the civil damages imposed in the sentence have been paid; the conduct of the convicted person regarding the clarification of the truth; recognition of the seriousness of the crimes committed and their rehabilitation; and the effects that their early release would have at a social level and on the victims and their families,”the Court specified .
He also noted the serious irregularities in the medical examinations and that the benefit granted is part of “a political negotiation to avoid the vacancy of then President Kuczynski.” Irregularities that it reserved to evaluate, pending the resolution issued by the Peruvian authorities. The ruling in the majority of the TC must have clarified these irregularities when resolving, so that the pardon is valid. If the Peruvian authorities do not take into account these parameters, regarding domestic legislation, it is most likely that the pardon and right of grace granted to Fujimori will be annulled.
The Court’s resolution
The Court underlined that the State is responsible for the crimes of Barrios Altos and La Cantuta.
Eloy Espinosa-Saldaña, Judge TC
“If the Inter-American Court wants, on April 7 it can annul the judgment of the TC or propose a measure to analyze Fujimori’s situation because the terminally ill patient leaves to go to a hospital.”
Ronald Gamarra, lawyer
“The rule is clear. The Public Prosecutor’s Office Specialized in Supranational Matters —not the TC— exercises the defense of the State before the Inter-American Court and only it defines the strategy to follow”.