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Legal Analysis from Jim Manahan

James H. Manahan is a trial lawyer in Mankato, Minnesota, U.S.A. He has specialized in both civil and criminal litigation for 45 years, and was recently named one of the “Top 10” Minnesota lawyers. He was News Editor of the American Bar Association magazine “Human Rights”, and served on the national board of the American Civil Liberties Union (ACLU). During the past six years Mr. Manahan has spent significant time teaching law in South and Central America. He has received four Fulbright grants to teach oral trial skills at law schools in Chile, Argentina and Costa Rica, and has also lectured at law schools in Peru, Mexico, Ecuador and Cuba. At present, he is acting as a human rights observer at the trial of former President Alberto Fujimori in Lima, Peru, on behalf of the Praxis Institute for Social Justice and the International Senior Lawyers Project.

Comments by Jim Manahan

Foreign Relations (21 March, 2008)

            The Fujimori trial is providing some unexpected good news for Peru on the international scene.  Not only is the ex-President facing trial for his alleged crimes, just like any other citizen would have to do, but the whole world is aware that this is happening.  Whatever the outcome of the trial, due process of law has been observed and Peru has shown everyone that its judicial system works.

            The President of Peru, Alan Garcia, was in Japan this week to sign some economic agreements.  Japan is giving Peru a credit of $230,000,000 for electrification and clean water works.  This represents a huge change in relations between the two countries, since just a couple of years ago Japan refused to extradite Alberto Fujimori back to Peru to face charges.  Here is what President Garcia said in Tokyo last Monday:

            “Why is there so little Japanese investment in Peru?  This could be due to terrorism.  But also to the cooling that there was in our relations because of Fujimori, which seems to me was a mistake. . . .  That chapter [of distance between the two countries] is now closed.  The entities and the Japanese Government know that in Peru there is an objective trial against Fujimori, because the judges are judging the facts.”

            In other words, now that the Japanese government knows that Fujimori is receiving a fair trial in Peru, it is possible to renew good relations between the two countries. 

            President Garcia continued with this theme on Tuesday:  “The authorities and the Japanese people know that in Peru there is an objective trial, independent of the powers of the State and political power, and that no negative pressure is being exercised, because the judges, free from public opinion and political tendencies, have to judge facts and to give us the result, which will be respected by all Peruvians.”

            There are people in Peru who think that the Fujimori trial is just a political exercise, that it is a waste of time, and that it would be better to forget the past and move on.  But to the rest of the world this trial is a very important demonstration that Peru has, indeed, moved forward.   The conference at which President Garcia was speaking was called “Invest in Perú:  Business Hub in South America”.  Few businesspeople are going to invest in a country which is lawless, where judges and police are bribed, where the courts cannot deliver justice.  The Fujimori trial is demonstrating every day that Peru is well on its way to becoming a country where the rule of law and justice prevail.  The international community is watching with great expectations.  Congratulations to Peru! 

Jail for the FujiFans? (12 March, 2008)

Dear Michael Baney:

You have raised an interesting legal question about Peruvian law.  As you point out, Article 316 of the Criminal Code of Peru reads as follows:  “Whoever publically makes a defense of a crime or of a person who has been convicted as its author or participant shall be punished with not less than one nor more than four years of prison.”

Although the statute uses the words “whoever makes an apology”, this must be understood in the sense of “makes a defense” rather than the meaning in English of “I’m sorry”.

You suggest that, since Alberto Fujimori has already been convicted and sentenced to six years in prison, it is now technically illegal under this law to speak well of him.  You ask:  “Would the law then not permit the arrest en masse of Fujimoristas?”  Or at least, you point out, the law would “put Fujimorista legislators in an odd position in which they could be censured for violating the law if they ever said that any of the acts for which [he] is on trial was justified.”

First of all, I suspect that this statute would be narrowly construed to punish only direct defense of a criminal act.  For example, it might apply to a public statement that a man was justified in killing his wife because she committed adultery.  Or to say that Fujimori properly ordered the illegal search of the home of Trinidad Becerra, wife of Vladimiro Montesinos, on November 7, 2000, the crime of which he has been convicted.  Peruvian courts would probably say that it does not violate the law to argue that Fujimori was, on balance, a good president.

Even that limited application certainly raises freedom of speech issues.  In the United States the First Amendment to the Constitution strongly protects everyone’s right to say whatever they want to say about crimes and criminals.  And in Peru, the same right is found in Article 2 of the Constitution of 1993:  “Every person has the right to freedom of information, opinion, expression, and dissemination of thought through oral or written words or images, by any medium of social communication, without previous authorization or censorship or any impediment whatsoever, subject to legal responsibilities.”

This constitutional right in Peru certainly should apply to the expression of an opinion that, for example, secret killings of suspected terrorists were justified in the fight against Shining Path.  Many people to whom I have talked in Peru have expressed that sentiment to me.  I heard the same thing in Chile – “it’s too bad if a few innocent people were killed by Pinochet, but we needed a firm hand at the helm to deal with extremely dangerous threats to our country.”  Much as those of us who believe in human rights and the rule of law may hate to hear opinions like these, people in a democracy should be free to express them.

You point out that in the 1990s, then-president Fujimori relied on Article 316 of the Criminal Code to send Shining Path sympathizers to jail and to shut down El Diario, the Shining Path newspaper.  It would be ironic, indeed, if the present administration were to use that same law to jail FujiFans (as I like to call them) for expressing their opinions.  Nonetheless, the fact that Fujimori violated the constitutional guaranty of freedom of speech hardly justifies further violations now, even against those whose opinions we may hate. 

Prior inconsistent statements (3 March, 2008)

            Last Wednesday at the Fujimori trial, Santiago Martin Rivas, alleged head of the Colina Group, categorically denied the existence of the Colina Group.  However, on Friday in court we watched a videotape of a two hour interview he gave in 2002 to a reporter named Umberto Jara, in which he described the operations manual that authorized the Colina Group’s activities.

            “A state policy to confront terrorism existed, copied from the techniques and tactics of the United States, called low intensity war,” he says on the tape.  He prepared a manual that set out the strategy for responding to terrorist strikes with secret Army strikes, and said that Barrios Altos and La Cantuta were part of that plan and were carried out to send messages to Shining Path.  Fujimori approved the policy:  “To be logically applied it needed the guarantee and authorization of the government . . . . It was approved by the top of the Executive Power, through the president as commander in chief of the Armed Forces and his advisor Montesinos.”

            Martin Rivas now says that the video was just a “rehearsal” to prepare his defense (he was in hiding at the time).  He says that he was repeating things from books and newspaper clippings that Jara gave to him, and he again denied the existence of the Colina Group.

            Obviously the witness is being inconsistent, and can be impeached by showing that he is contradicting himself.  The use of prior inconsistent statements to show that a witness cannot be believed is a standard technique of cross-examination. 

            But this raises an interesting legal question – can the prior unsworn statements be used substantively to prove the prosecution’s case?  Should the judges consider the videotape as evidence against Fujimori, or simply as impeachment of Martin Rivas?

            Fujimori’s lawyer, Cesar Nakazaki, argues that it is not evidence.  “We have two contradictory versions from Martin Rivas, so they should both be excluded and not be used by the defense or the prosecution.  The only proof is what is heard in court.”  The head prosecutor, José Peláez, expressed amazement at this idea, pointing out that it was Nakazaki himself who called Martin Rivas to testify, and says the judges will have to decide which version to believe.  “I think that today marks a before and after of this trial.  In the video, which the whole country has been able to watch, Martin Rivas can be seen . . . admitting the existence of the Colina Group and the responsibility of Alberto Fujimori.”

            The traditional rule in common law countries has been that in the case of a witness who is not the accused, a prior inconsistent statement can only be used as to the credibility of the witness’ testimony in court.  However, in California v. Green, 399 U.S. 149 (1970), the U.S. Supreme Court ruled that the Constitution is not violated by considering a witness’ out-of-court statements as evidence as long as he is testifying at the trial and is subject to cross-examination.  The witness is now under oath, and his demeanor can be observed by the judge or jury, the Supreme Court decided.

            Peru follows the European civil law, not the common law tradition that is based on court precedents.  Nonetheless, it appears likely that the judges who are hearing the Fujimori case will accept the California v. Green reasoning, and will reject Nakazaki’s argument that the two contradictory versions of Martin Rivas should cancel each other out.

The head of the army (19 February, 2008)

            Yesterday there was a sharp disagreement between the two witnesses who testified at the Fujimori trial.

            The first witness, Angel Pino Díaz, said that the former president was not part of the chain of command of the army, and was not in command of the institution.

            The second, Hugo Coral Goycochea, testified that the Colina Group was part of the army and it responded to government policies.  “Major Santiago Martin Rivas was just a transmitter of orders . . . that came from a structure that was part of government policy.  Everything was carried out under the direction of the institution; we didn’t act on our own,” the agent emphasized.  In response to questions from César Nakazaki, the defense attorney, Coral said that his opinion is based on his knowledge of Peru’s Constitution.

            It is true that the 1993 Constitution makes it very clear that the President is the head of the army.  Article 167 says that “The President of the Republic is the Supreme Head of the Armed Forces.”  Article 164 says “The President of the Republic directs the National Defense System”.  Article 118 (14) says that the President “organizes, distributes, and arranges the employment of the Armed Forces.”  Article 98 even requires the President to put army personnel at the disposal of the Congress if the head of the Congress asks for it.

            The question that then arises is whether Alberto Fujimori, being the head of the army, can be convicted for criminal acts of an army unit without any proof of his direct responsibility. 

            It seems unfair to attach criminal responsibility to someone merely because one of his employees commits a crime.  On the other hand, a person who has “command responsibility”, who know about criminal acts of his subordinates, and who does nothing to stop further crimes, should bear the same responsibility as the persons who actually “pull the trigger”.

            Gloria Cano, one of the lawyers for the civil party (families of the victims) was recently quoted in the newspaper La Primera as saying that Fujimori “knew about the creation and the actions of the Colina Group.  This qualifies as an omission, for not preventing the violations of human rights”.  Because of his failure to act, she states that Fujimori will receive a 30-year sentence.

“I’m sorry” (15 February, 2008)

            Several former members of the Colina Group have concluded their testimony at the Fujimori trial by turning to the families of the victims and asking for forgiveness.  This week Hector Gamarra Mamani said “I ask for pardon from the families of the victims of this war, and from my own family for putting them in this problem by following orders from above.” 

            Since Gamarra has already been sentenced to 15 years in prison for participating in the murders of civilians at Barrios Altos and La Cantuta, his apology apparently was not motivated by any hope for a reduced sentence. 

            Nonetheless, there is a certain ring of insincerity when an apology is coupled with an excuse.  Saying “I’m sorry, but . . .” is usually an attempt to blame others for one’s conduct.  And in this case, saying “I’m sorry, but I was just following orders” is obviously intended to shift the blame to those who gave the orders, thereby lessening his own blame.

            Gamarra also testified that “Right after the Barrios Altos operation it was clear that the mission [of the Colina Group] was to eliminate.  We never arrested people.  Afterwards they just told us ‘we’re going to carry out such and such an operation’, because they aren’t going to be repeating every so often what the mission is and by whose order it is being done.”

            Furthermore, he confessed that on one occasion he was given the mission of assassinating Yehude Simon, a leftist politician.  He was installed on the second floor of a hotel in the center of Lima, about 80 meters from where Simon was expected to be, and had a machine gun with telescopic view and a silencer.  He was awaiting the order to shoot, but for reasons he does not know he was ordered to withdraw and he went home.

            What should soldiers do when they know they are being sent to kill civilians?  After World War II international law was clarified to make it clear that the “Nuremberg Defense” (“I was only following orders”) is not a defense to war crimes.  The London Charter states The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.

            An unlawful order presents a dilemma from which there is no legal escape. One who refuses an unlawful order will probably be jailed or killed, and then his superior officer will simply carry out the order for him.  Nonetheless, it is his duty to refuse to comply with such an order.  If the soldiers of the Colina Group had refused to kill civilians, the whole course of the Fujimori presidency might have been different.

Lime eats flesh (12 February, 2008)

            Another former agent of the Colina Group, Pablo Atúncar, testified yesterday.  He confirmed the cold-blooded nature of the murders that the group committed.

            Several witnesses have testified that the members of the Colina Group did not receive any training about how to interrogate suspects.  Their mission was simply to locate and eliminate subversives.  “Eliminate”, they told us, meant “to kill”.

            Thus, when they went out on an assignment, they brought guns with silencers, as well as shovels, picks, and lime.  Atúncar explained yesterday that the purpose of the lime was to cover the bodies in the graves.  “The lime,” he said, “eats the flesh”, thereby making identification more difficult.

            Last Friday another agent, Jorge Ortiz Mantas, described how they detained a journalist named Pedro Yauri, brought him to the beach, and made him dig his own tomb.  “Chuqui wanted me to kill him, but since I had a G3 machine gun, I refused.  Chuqui, mortified, then shot him and handed me his gun so I also could shoot.  I gave him two more shots.”

            Atúncar revealed that the Colina Group originally intended to blow up the Barrios Altos house after killing the 15 people who were there at a party.  They received training in the use of dynamite and brought explosives to Barrios Altos with them.  However, they decided not to destroy the house when they discovered that on the second floor there was a family cookout with a lot of children.

            All of these witnesses have explained their cold-blooded murders by stating that a soldier must follow orders.  Ortiz Mantas was asked if he could have refused to kill, and he answered:- “No.  Military life is different from civilian life.  In the Army one must comply with orders without any doubts.”

            They have also made it clear that in the Army it is not possible for soldiers to act without the knowledge of their superiors.  “Nothing is done without an order from above,” said Ortiz Mantas.  “The Dinte [Army Intelligence Office] had to know.  Martin Rivas [head of the Colina Group] had to know before or afterwards.”  Atúncar testified that the Colina Group had the support of the Army high command, including General Hermoza Ríos and President Fujimori, “who gave us an amnesty law.”

            All together, according to Atúncar, the Colina group engaged in eight separate “operations” with death to victims picked out by the Dinte.  “A suspect was never brought to the police, he was never questioned, he was always killed,” he testified.  And “the lime eats the flesh”. 

The cover-up uncovered (9 February, 2008)

            Yesterday we heard testimony from an ex-member of the Colina Group, the Army’s “death squad” during the early Fujimori years.  The truth about what they did, covered up for so many years by the government, is now uncovered.  Here is the background:

On November 3, 1991, a group dressed as soldiers massacred 15 civilians, including an 8 year old boy, at a neighborhood dinner in the Barrios Altos section of Lima.  These killings supposedly targeted members of Shining Path.  The government denied any involvement.

On July 18, 1992, nine students and a professor at La Cantuta University were “disappeared” by a group dressed as soldiers.  Since no bodies were found, the judicial system did nothing.  In April, 1993, a secret memo was disclosed, confirming that army intelligence operatives had executed the La Cantuta detainees.  Hearings were held, but General Nicolas Hermoza Rios, head of the armed forces, denied knowledge of any military involvement.  He testified that paramilitary forces could have been responsible, or that Shining Path might have attacked the students, or that it could have been a stunt by the students, a “self-kidnapping”. 

But in May General Rodolfo Robles confirmed the existence of the Colina Group and said it was behind the La Cantuta killings.  Robles was then charged with insubordination, insulting the armed forces, and making false statements.  Fifty-four army generals signed a statement calling Robles a coward and a felon, unworthy to wear the uniform of the armed forces.  On June 26 the Congress (with Fujimori loyalists in control) voted 39 to 13 to do nothing. 

Shortly afterwards, however, the bodies were discovered in graves outside of Lima.  Relatives identified the clothing, and keys found at the site fit the residence of one of the victims.  Several skulls found at the scene showed that the victims had been shot in the head at close range.  The national police stated that the evidence must have been planted by Shining Path.  President Fujimori stated in December that the crimes were “individual and isolated acts”.  Nonetheless, charges were filed against some military personnel, and in 1994 a military court convicted 9 of the 10 defendants.

The Congress responded by passing an Amnesty Law in June, 1995, granting blanket amnesty to all military and police personnel implicated in human rights abuses, which President Fujimori promptly signed into law.  When Judge Antonia Saquicuray ruled that the amnesty law was unconstitutional, Congress passed another law decreeing that the amnesty law was not subject to judicial review.

Yesterday agent Jorge Ortiz Mantas testified that he saw Colina agent Jesus Sosa kill La Cantuta professor Hugo Muñoz and saw his boss Julio Chuqui shoot a student in the head.  He said that eight months later Captain Carlos Pichilingue, allegedly on orders from General Nicolas Hermoza, ordered ten Colina members to dig up the bodies and move them to another spot because information had leaked out.

Now, finally, the information is all leaking out, in court.

The bloody details (6 February, 2008)

            There is no dispute about the fact that the Colina Group killed 15 people at Barrios Altos on Nov. 3, 1991, and another 10 people at La Cantuta on July 18, 1992.  The question in the Fujimori trial is whether the former president authorized the killings or did anything to stop them when he could have done so.  Why then is the prosecution presenting evidence at the trial of the bloody details of the killings?

            Yesterday, for example, we heard the testimony of two former members of the Colina Group.  We learned that before Barrios Altos they were trained to kill by using an Israeli technique that consisted of shooting directly at the head and the heart of the victim.  “The mission of the Colina Group was to capture and kill persons”, said agent Isaac Paquiyauri.  “In the basement of the Army Intelligence Service strong questioning was done, and if it seemed convenient that the arrested person stay alive we turned him over to the police, if not we killed him.”

            The El Comercio newspaper published an interesting analysis of the prosecution’s strategy this week, written by Cesar Azabache Caracciolo, a law professor at Catholic University and a well-known criminal defense lawyer.  He points out that this oral, public trial is providing a space to establish an institutional response to one of the principal moral problems of society, namely the conditions under which a president should be considered responsible for the acts of his subordinates.

            According to Azabache, “it was useful for the objectives of the prosecution to have put a type of ‘zoom’ on the details of each crime described in the complaint.  The details exposed by the witnesses about the massacres at Barrios Altos and La Cantuta are horrendous, to the point that each review of the evidence suggests that the accused will not be able to sustain his defense on the fragile line of ignorance about what happened. . . . The argument of ignorance is shown to be unacceptable when confronted with the images that each witness calls up.”

            It may well be that Fujimori did not give direct orders to kill people without a trial or any due process.  But Azabache notes that Fujimori’s impassive indifference is more than simple negligence.  “To allow to do” is terribly wrong when the person who “let’s do” has the last word about the outcome of things and sufficient power to avoid that outcome.  “The moral force of the trial is bending irremediably against the accused, who showed himself impassive in the face of the details of what happened”, says Azabache. 

It is an important goal of the justice system to make sure that decisions about accused persons be understandable to all citizens.  The transparency of this trial is assuring that everyone, even those citizens who still support the former president (“fujimoristas”), will understand the final verdict when it is announced.

The right to remain silent (4 February, 2008)

            The current question being addressed in the Fujimori trial is the extent to which an accused person has the right to remain silent.  The law is very clear that, like most other rights, the right to remain silent can be exercised or can be waived (given up). 

            Last week (Jan. 28) an ex-agent of the Colina Group, Víctor Hinojosa Sopla, who is a defendant in a related criminal case, refused to testify at the Fujimori trial, claiming the right to remain silent.  The judges took the question under advisement. 

            Today another witness, Fernando Lecca Esquén, who is also being tried for the crimes of the Colina group, refused to testify.  Both witnesses raise the same legal question, since both are being processed for the same crimes that the Fujimori trial involves, and both have given voluntary confessions in their own cases.

            The judges ruled today that both witnesses will have to testify.  By giving a confession or collaborating with the government (and thereby getting the benefit of a reduced sentence in their own case), they have waived their right to remain silent and must testify in related cases such as the Fujimori trial.  Their testimony will not prejudice their own case, and of course they can retract what they said in their earlier confessions.

            Lecca Esquén still refused to testify today, so at the suggestion of defense attorney César Nakazaki, Judge San Martín told him to talk to his public defender and be back in court in two days.

            Article 245 of Peru’s Procedural Criminal Code says “When the accused who is testifying remains silent regarding a question, this fact shall be noted on the record and the questioning shall continue.”

            Most other countries have similar guaranties.  Costa Rica’s Constitution (Article 36) says “Every criminal suspect has the right to remain silent.”  Chile’s Criminal Code (Article 93g) says “Every accused person has the right to remain silent, or in case he or she consents to testify, the right not to do so under oath.”  The 5th Amendment to the United States Constitution says “No person shall be compelled in any criminal case to be a witness against himself.”

             But none of these guarantees tells us when the right to remain silent might be considered “waived.”  That has been developed by case decisions in the United States and by common sense in the civil law countries like Peru.  It seems obvious that if an accused person has already confessed, it can cause him or her no harm to repeat the confession in a related case.  The accused can always claim that the earlier confession was untrue, or can clarify it.  But to permit the witness to give up the right to silence in his or her own case, and then claim it again in the related case, would make no sense.  The Fujimori judges clearly made the correct decision today in deciding that Hinojosa Sopla and Lecca Esquén must testify.  If the witnesses continue their refusal, they will be prosecuted for contempt of court (crime against the public administration). 

Why the Supreme Court?  (2 February, 2008)

            Normally trials are held in trial courts.  Witnesses testify and are cross examined, the judge (or jury) makes a decision, and the losing party can appeal to a higher (appellate) court if he or she thinks mistakes were made at the trial.  The final appeal is to the country’s highest court, the Supreme Court; no witnesses testify there, the judges simply listen to the lawyers and decide if the result in the lower courts was legal.

            The criminal trial of Alberto Fujimori, however, is taking place in Peru’s Supreme Court, before a panel of three Supreme Court judges.  How can this be?

            The answer lies in Peru’s 1993 Constitution, which sets out the procedure for bringing charges against high government officials.  Article 99 states that the Permanent Commission in Congress can accuse the President, members of Congress, state ministers, high court members, the chief prosecutors, the Ombudsman, and the Comptroller General of constitutional violations or of any crime committed in the exercise of their office.  Article 100 states that Congress can then suspend or dismiss the accused or bar him or her from public office for ten years.  If there are criminal accusations, “the National Prosecutor shall bring charges before the Supreme Court within five days.”

            The idea that the Supreme Court can act as a trial court is not unique to Peru.  In fact, the United States Constitution also gives “original jurisdiction” to the Supreme Court in a limited number of cases.  Article III, Section 2 states:  “In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.”

            Currently, the only original jurisdiction cases commonly handled by the Supreme Court are disputes between two or more U.S. states, typically regarding boundary lines, water claims, or other property issues.

            Here is a brief background on how Fujimori ended up in the Supreme Court.  After being elected in 1990 and reelected in 1995, he ran for an unprecedented third term in 2000.  He won the election on May 28, 2000, although many people thought that his victory was the product of election fraud.  Within six months numerous scandals had erupted regarding his spy chief, Vladimiro Montesinos, and Fujimori flew to Japan and faxed back his resignation as President on Nov. 19.  The Congress refused to accept his resignation and instead impeached him on Nov. 21, also barring him from office for ten years.  In August 2001, Congress authorized criminal charges against Fujimori, alleging that he and Montesinos were co-authors of the death-squad killings at Barrios Altos in 1991 and La Cantuta in 1992.  At the behest of Peruvian authorities, Interpol issued an arrest warrant for Fujimori on charges that included murder, kidnapping, and crimes against humanity.  However, Japan would not extradite Fujimori, and it was only when the ex-President was arrested in Chile in 2005 and then extradited to Peru last September that he had to face the charges for which he is now on trial in the Supreme Court.

 

See analyses from January

7 Comments

7 responses so far ↓

  • 1 Michael Baney // Feb 4, 2008 at 7:42 pm

    This is some great analysis that reads easily for non-lawyers such as myself. Thanks a lot. I was wondering if you saw the interview in La Primera with Gloria Cano, who is the general counsel of APRODEH and representative of the victim’s families. The article is actually reproduced here http://blogxpress.org/aprodeh/2008/01/28/gloria-cano-recibira-30-anos-de-todas-maneras/ if you haven’t.

    Cano claims that Fujimori can be given 30 years in jail for an act of omission, which would be not stopping Grupo Colina. Is that true? I know that Fujimori’s lawyers have been wrangling over the difference between an “intellectual author” and a “material participant,” and claim that authors can’t be punished as harshly as participants, or something to that effect.

    What exactly must be proved in this trial to send Fujimori up the river for thirty years? Must he have actively planned the massacres in question, could he just have participated in them by authorizing them, or could he even be jailed for failing to prevent them?

  • 2 rick owens // Feb 21, 2008 at 8:12 am

    Thank you Mr. Mananhan, for your accounts and descriptions of this trial. The healing of the peoplecan happen when the past is shown for all to see.

  • 3 Michael Baney // Mar 8, 2008 at 2:04 pm

    Mr. Manahan,

    I don’t know if you even read these comments, but if so, I have a question about Peruvian law.

    As you may know, Article 316 of the Criminal Code of Peru reads as follows:

    “El que, públicamente, hace la apología de un delito o de la persona que haya sido condenada como su autor o partícipe, será reprimido con pena privativa de libertad no menor de uno ni mayor de cuatro años.

    “Si la apología se hace de delito contra la seguridad y tranquilidad públicas, contra el Estado y la defensa nacional, o contra los Poderes del Estado y el orden constitucional, la pena será no menor de cuatro ni mayor de seis años.”

    My translation:

    “He who publically makes apology for a crime or for a person who has been sentenced as its author or participant, shall be punished by the privation of his liberty for not less than one nor more than four years.

    “If the apology is of a crime against security and public tranquility, against the state and national defense, or against the powers of the state and constitutional order, the penalty shall be not less than for nor more than six years.”

    Fujimori relied on this law to jail Sendero sympathizers and shut down El Diario, the Sendero newspaper.

    However, at least as I read it, Article 316 makes it illegal to apologize for anyone who has been sentenced for a crime, not just those who have been convicted of terrorism. Fujimori has been sentenced to jail. Is it not, then, technically illegal to speak well of Fujimori? Should Fujimori be convicted on all counts, would the law then not permit the arrest en masse of Fujimoristas?

    Also, several of the crimes for which Fujimori is on trial to relate to undermining the “constitutional order.” Perhaps, then, Fujimoristas should be given enhanced punishment of four to six years.

    I understand that there is no way that the Peruvian government is going to round up everyone who supports Fujimori in the same manner that it rounded up people who supported Sendero. Nor should it.

    I wonder, however, if the law would at least put Fujimorista legislators in an odd position in which they could be censured for violating the law if they ever said that any of the acts for which Fujimori is on trial was justified.

    I’d be interested in reading your opinion on all this,

    Michael Baney

  • 4 Admin // Mar 11, 2008 at 8:40 pm

    Estimado Michael Baney:

    Cómo usted señala en el artículo 316 del Codigo Penal peruano se establece el delito de apología.
    Si bien en Perú no conocemos mucho desarrollo doctrinario respecto a este delito, el Tribunal Constitucional, ha hechos un desarrollo jurisprudencial interesante.
    En este sentido, en la sentencia del Tribunal Constitucional del expediente 00010-2002, sobre Proceso de Inconstitucionalidad, manifestó en el páragrafo 88 los límites a este delito:
    “a) Que la exaltación se refiera a un acto terrorista ya realizado; b) Que cuando la apología se refiera a la persona que haya cometido el delito, esta debe tener la condición de condenada por sentencia firme; c) Que el medio utilizado por el apologista sea capaz de lograr la publicidad exigida por el tipo penal, es decir, que debe tratarse de una vía idónea para propalar el elogio a un número indeterminado de personas; y, d) Que la exaltación afecte las reglas democráticas de pluralidad, tolerancia y búsqueda de consenso. ”
    Si bien estos límites al poder sancionatorio del Estado se establacieron frente a la apología al terrorismo, pueden extenderse, frente al delito de apología a cualquier delito.
    En el caso concreto hay dos requisitos que no se cumplen según lo establecido por el Tribunal Contitucional:
    1. Para ser apología la exaltación debe ser al hecho en si, en este caso, al allanamiento. Hasta ahora no hemos escuchado a algún simpatizante de Fujimori, decir que estuvo bien que se cometa y que se exalte este delito.
    2. La persona que haya cometido el delito, debe tener sentencia firme. Lo cual en el caso de Fujimori, aún no la tiene, hasta que no se resuelva la apelación.
    Debido a esto, en el caso de los simpatizantes de Fujimori, no se les puede imputar delito de apología.

    Atentamente,
    Equipo de Fujimoriontrial

  • 5 Michael Baney // Mar 21, 2008 at 7:47 pm

    I want to thank both Mr. Manahan and the above poster for clarifying the status of the apology law. If the crime of “apology for terrorism” was limited by the Tribunal Constitucional, then I would suppose that the law against simple apology would also be limited. After all, the state has even more of a compelling interest in curtailing terrorism than it does in curtailing misdemeanors, so I would expect that the laws against terrorism would be as broad as the laws can be without being unconstitutional.

    Just for the record, I want to state that in no way do I actually advocate using the law against Fujimoristas, or anyone else for that matter. As a civil libertarian, the laws against apology have always struck me as uncommonly silly, as Justice Stewart might have said. The law as it is written ignores the enormous difference between saying something should be done and actually doing it, a difference that should be plain to see. However, in demanding that the law only be applied towards speech that has some sort of mesurable effect on “plurality, tolerance, and the search for consensus,” the Tribunal Constitucional seems to have recognized that difference.

  • 6 Gabriel ChavezTafur // Apr 28, 2008 at 10:54 am

    Thank you Mr. Manahan for the excellent commentary. If you read this, would it be possible for you to comment on how is international criminal law playing a role (if at all) in Fujimori’s trial? I’d be interested to know if Peru is a monist or dualist system, and if international courts’ jurisprudence re: command responsibility could be used in this trial. Thanks so much!

  • 7 Pedro Lopez de Romana // Jun 8, 2008 at 10:08 pm

    TO THE EDITOR/WEBSITE OWNER: Your comments are entertaining and interesting in general, but this is a political trial, not a judicial one. In the end, you will see Fujimori free and enjoying life as any other citizen. It is only because Peru needs a show (as you unintendedly concede) for what you call “the World” (I guess that includes the Queen of England ans well as Hugo Chavez and the President of Iran, not just those who watch the “World Series”) that Fujimori is on trial right now. Corruption in Peru’s judiciary is rampant, and this trial will not change that. The Judge who presides the panel judging Fujimori was (is?….) a partner of the lawyer Fujimori hired to do his work when he was president. Why don’t you investigate the panel? Your findings will surprise you. Are you expecting impartiality? Why do you think Fujimori’s lawyers said this was a “superb panel of judges” at the beginning of the trial? If you indeed are one of the best lawyers in Minnesota, why do you think Fujimori’s lawyers are so happy with the panel? Yes, you can expect some kind of jail time (6 years max): the show must go on…. But it will be very short, and mostly compensated (maybe cancelled) by the time Fujimori has already spent in detention. So, please don’t hold your breath for “the” verdict. Some underlings will be sent to jail for a long while (15 to 30 years) but their boss never will. Again, your website is interesting, but from an academic perspective. Reality is ( and in this case will be) different. Also, please tell your readers that Peruvian lawyers and judges do not peel onions like Common Law lawyers. So the English/US law schol exercise in Peru means really nothing. Sorry for being skeptical, but I trust my experience, which is quite long in both systems of law. Cheers.

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