February 23, 2009
147th session – Fujimori’s defense team continued closing arguments. Fujimori’s principal attorney, Cesar Nakazaki, argued that the arrest of journalist Gustavo Gorriti was not a kidnapping, but rather an abuse of office.
I. Arguments of Fujimori’s Defense
According to César Nakazaki:
Not kidnapping, but abuse of office
1. Non-criminality of the act (confinement is not kidnapping, but rather an abuse of office): Nakazaki asserted that the confinement of the journalist is not described in Article 152 of the Penal Codeas the crime of kidnapping. (According to the Peruvian Penal Code, to commit the crime of kidnapping one must: without right, motive or justifiable reason, deprive another of their personal liberty, whatever be the motive, intention, method or circumstance; or the time that the victim suffers the deprivation or restriction of their freedom. Moreover, this crime has a maximum penalty of 15 years in prison.)
Nakazaki made and extensive and detailed argument as to why the crime Fujimori committed against the journalist Gorriti was an abuse of office (by way of illegal confinement) and not kidnapping. According to Article 376 of the Peruvian Penal Code the crime of abuse of office is committed by a public official “who, abusing his authority, commits or orders any arbitrary act to another’s detriment.” The penalty for this crime is a maximum of three years in prison.
According to Nakazaki, “kidnapping” is committed by individuals or government officials who are not exercising their official position, who without right deprive a person of their liberty; while the crime of “abuse of office,” is committed by government officials who are exercising their official position and have the authority to confine, but realize that confinement is abusing that authority.
2. Statute of limitations of the criminal action (the time period to try Fujimori has expired):Since Fujimori’s attorney argues that the crime is not kidnapping, but rather “abuse of office,” then the time span the State has to try the former president for this crime has expired, given that Fujimori has been officially tried since Nov. 14, 2003. According to Nakazaki, “Gustavo Gorriti was a victim of a crime — we are not arguing that. What we are looking to establish is what crime and who committed it.”
Violation of the right to self-defense
Nakazaki asserted that the first stage of the criminal trial (the briefing stage) violated Fujimori’s right to self-defense, since the trial started on September 13, 2001. However, it was seven months later that the court declared the defendant absent and assigned him a public defender.
Furthermore, this public defender did not attend any of the proceedings, nor did he present any pleadings on behalf of his client. Also, there were 38 investigative proceedings in which no attorney for Fujimori participated (including 10 proceedings when had a defense attorney, but the attorney did not show up).
The representatives from the Public Prosecutor’s Office and the attorneys for the victims’ families did not attend
According to Keiko Sofía Fujimori, the former president’s daughter, the absence of the public prosecutors demonstrates “the weakness of their accusation.” Keiko Fujimori is a fujimorista congresswoman and possible presidential candidate in 2011.
In the previous session, Gisela Ortiz, spokesperson for the victims’ family members, announced that the families have decided not to attend during Nakazaki’s closing arguments since they strongly disapprove of the attorney’s insistence that the “social cost” justified Fujimori’s innocence.
Human Rights Watch weighs in
The international organization Human Rights Watch recently addressed Fujimori’s trial and the imminent verdict. A representative of the organization asserted that the criminal trial for “a former head of state, has been a very positive development in the subject of international justice and accountability for human rights crimes. We hope that the Supreme Court panel that is trying [Fujimori] will reach a just decision that takes into account international standards on accountability for human rights crimes.”
They have also released a detailed document with questions and answers concerning the case.
III. Next session
The session has been suspended until Wednesday, February 25.