A propósito de la resolución del último recurso de agravio constitucional planteado por el ex-presidente Alberto Fujimori.
On May 3, the Plenary of the Constitutional Court resolved the last habeas corpus presented by former president Alberto Fujimori, who is serving a 25-year prison sentence for a series of crimes that include aggravated homicide, embezzlement, corruption, etc.
What Mr. Fujimori was specifically requesting was the nullity of the sentence of the Special Criminal Chamber of the Supreme Court that sentenced him to 25 years in prison (as well as the sentence that declared that this sentence was not null), the realization of a new oral trial and that his immediate release be ordered due to the excess of the detention period.
In resolving Mr. Fujimori’s request, however, the Constitutional Court, analyzing each argument presented by Mr. Fujimori, determined that the petition was not admissible. Within these considerations, the Court concluded the following:
“(…) the questioning of the provisional nature of the judge who hears and resolves the proceeding does not affect the constitutionally protected content of the right to a judge predetermined by law (…)”. (Legal Ground 10).
“(…) no reasons have been found to conclude that the judges that formed the Special Criminal Chamber had pre conceptions about the case being tried. Nor can we fail to point out that this decision could have been challenged, as in fact it was, before a higher collegiate body, which was composed of five members, (…). Therefore, even if it had been proven that the judge in question had, beyond any doubt, some kind of prejudice or animosity, a situation not proven in the present case, this would not justify, by itself, the annulment of the conviction”. (Legal Ground 38).
Likewise, in relation to the alleged violation of the right of defense, the right to prove and the accusatory principle, the Court determined that these had not been accredited.
On the other hand, a particular argument put forward by Mr. Fujimori was that neither the prosecutor’s accusation nor the considerations contemplated by the Supreme Court of Justice of Chile when resolving the extradition request included accusations of crimes against humanity; a matter that would have made it difficult for him to present suitable evidence to disprove this classification and, furthermore, the possibility of accessing a humanitarian pardon.
In view of this, the Court considered that the classification of the crimes for which Mr. Fujimori was convicted as crimes against humanity is merely declaratory and is related to international duties assumed by the Peruvian State, considering that they come from International Criminal Law and International Human Rights Law and that “they do not support the establishment of criminal responsibility or the application of a sanction different from those recognized in domestic law” (Legal Ground 57).
In this regard, although it is possible to find a correlation between the conducts considered as international crimes and their criminalization in the domestic legal system, the fact is that the contingencies surrounding the classification of crimes as crimes against humanity or not have concrete implications that go beyond their denomination or their imprescriptibility; They may affect the eventual determination of the Peruvian State’s responsibility before international bodies for the crimes committed during the dictatorial governments of former President Fujimori, as well as the possibility of requesting a humanitarian pardon.
Notwithstanding the foregoing, the Court is correct in determining that the reference to crimes against humanity does not violate the principle of not double jeopardy, since, as mentioned above, the conviction of the former president was based on crimes defined in the domestic criminal law.