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Defense says Fujimori should be acquitted in Dyer case due to insufficient evidence

March 5th, 2009 · No Comments

 (Alberto Fujimori. Photo: Judicial Power)

March 2, 2009

149th session – Fujimori’s attorney, César Nakazaki, asked for the acquittal of his client in the alleged kidnapping of businessman Samuel Dyer on account of insufficient evidence. Regarding this case, he further argued:

1. Statute of limitations (due to the excessive amount of time that has passed this crime can no longer be prosecuted.)

2. The non-criminality of the act that he is accused of (that the acts committed against Dyer do not fit the crime of aggravated kidnapping).

I.  Defense’s arguments

According to César Nakazaki:

1. Presumption of innocence:

He invoked this procedural guarantee for Fujimori since “it is not possible to apply the criminal law adequately” if the presumption of innocence is not respected. Nakazaki asserted that the Public Prosecutor’s Office cannot prove its accusation that Fujimori ordered (through Vladimiro Montesinos, his chief advisor) for military personnel to kidnap Samuel Dyer.

In this sense, if this accusation cannot be proven, then it is false.

2. Ineffectiveness of heresay testimony:

Nakazaki based his argument on various authorities (judicial decisions) and similar international doctrine regarding this type of evidence, indicating that this is “not recommended and is of a secondary character.” He also said that three-fourths of the evidence presented by the Public Prosecutor is heresay.

3. Testimony of military official Carlos Rosas Domínguez Solís:

With respect to this testimony, Nakazaki alleged that there are problems with admissibility and credibility since the source witness, Vladimiro Montesinos, was also present during this trial. From the beginning, Montesinos stated that he would give his testimony, but when he refused to continue testifying, the Public Prosecutor and the lawyers for the victims’ families did not object; nevertheless Fujimori’s defense attorney objected.

According to Nakazaki, since Domínguez’s testimony directly referenced Montesinos’ statements, the prosecution should have insisted on interrogating Montesinos regarding this specific topic, rather than being satisfied with the heresay testimony of Domínguez.

4. Testimony of military official Alberto Pinto Cárdenas:

Nakazaki argued that Pinto’s allegations that “Alberto Fujimori ordered Vladimiro Montesinos to detain Samuel Dyer” is also heresay. Pinto himself testified that he found this out through Montesinos and Santiago Zegarra Guevara (who was then the second in command of the National Intelligence Service, SIN.) Nevertheless, Nakazaki asserted that since the Public Prosecutor did not ask Montesinos about this matter, nor did he call Zegarra Guevara as a witness, there are two problems:

4.1 The source witness (Vladimiro Montesinos) did not testify due to negligence on the part of the prosecution.

4.2 The fact that Zegarra was not called to testify, even though he was able to testify in the proceedings, makes the heresay testimony inadmissible. This testimony would only be admissible if it would have been impossible for Zegarra to testify. 

II. Outside the courtroom

Julio Salazar Monroe dropped Nakazaki

The retired soldier, sentenced to 35 years in prison for the forced disappearance of La Cantuta, dismissed the lawyers that defended him at César Nakazaki’s law firm.

III. Next Session

The session has been suspended until Wednesday, March 4. This will be the sixth consecutive session for Nakazaki to present arguments for Fujimori’s acquittal from the prosecutor’s accusations of Fujimori’s command responsibility for crimes against humanity.

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