Fujimori on Trial :: Fujimori procesado

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Relevant Legal Questions

(español)

 

Relevant questions prior to the criminal proceedings against Alberto K. Fujimori.

In November, various issues concerning Alberto Fujimori’s trial surfaced. The most relevant of these issues are described below:

 

1. The bill sent by the president, classified as urgent, for the simplification of the hearings.

The first week of November, the Executive sent Congress the “Hearings Simplification” bill, with the President’s and the Prime Minister’s signatures.

This bill proposes the following modifications to the Peruvian Criminal Procedural Code (procedural norms that regulate criminal hearings):

Procedural Norm:

Article 234 – On the indicated day and hour, in the presence of the prosecutor, the defendant, in the cases that his presence is obligatory, and the defense attorney, the Court’s President will announce the initiation of the trial, which will continue during the necessary consecutive sessions until its conclusion.

Modification:

“the defendant will not be able to leave without the court’s permission; however, once the charges have been heard and for justified reasons, the defendant will be able to obtain authorized permission of leave, and in such cases will be represented by his lawyer,” and also “if the defendant has made his declaration during the trial or chooses to maintain silence and he desists from attending the hearings, the hearings will continue without his presence and he will be represented by his lawyer.”

 

Procedural Norm: 

 

Article 256 – Special examination for witnesses and defendants: 1. The Court, on its own motion or at the request of one of the parties to the case, can order a witness to testify without being heard by other witnesses, or order a witness to be examined in front of one or more determined witnesses. 2. The Court, on its own motion or at the request of one of the parties, can order that the defendant not be present during a trial interrogation, if it is thought that other defendants or a witness will not tell the truth in the defendant’s presence. Likewise, this will proceed if, during the interrogation of a minor, harm against him is feared, or if during the interrogation of another witness, in the defendant’s presence, there is serious danger of harm to the witness’s health.  As soon as the defendant is present again, the Court must instruct him or her as to the essential content of what has been said or discussed in his or her absence.

 

Modification:

 

If the defendant “cannot attend the interrogation for reasons related to health, security or other justified reasons, [the court] will order his or her participation through a video conference system or other distance communication system.”

 

If these modifications are approved, they would be applicable to Mr. Fujimori’s trial, and would imply the following:

- Mr. Fujimori would not have to be present for the oral hearings or during the interrogations of other defendants, witnesses and experts. Moreover, Mr. Fujimori would not have to face his ex-advisor, Vladimiro Montesinos, General Hermoza Ríos, or members of the paramilitary group Colina.

- Witnesses would not have to go to the courtroom; the law would permit, for instance, that Montesinos, Hermoza Ríos, or other witnesses testify by teleconference in the hearings against the former president.

 

The “justified reasons” for which the defendant may be absent during the trial have not been specified, leaving ample room for interpretation.

 

The government claims the bill is intended to speed up the legal proceedings.

 

2.  President Alan Garcia announces plans to publish names of those who were imprisoned for terrorism and later released

On Nov. 19, attacks were made against the Peruvian National Police Department in the Valle de Río of Apurímac and Ene (VRAE) — one of the poorest areas of the country, which is used for drug trafficking. The attacks have been attributed to a supposed “Shining Path resurgence,” and President Alan Garcia announced plans to publish a list with 1,800 names of former terrorism prisoners, even though the now free prisoners were either found innocent and absolved or have completed their sentence. Mr. Garcia argues that the ex-prisoners are returning to their terrorist activities and that their names must be published so that “people know who their neighbors are.”

Subsequently, Premier Jorge del Castillo said: “This does not violate anybody’s rights; someone who has made an attempt on the life of others in a cruel, premeditated manner, has carried out selective crimes, or has attacked the Rule of Law and Peruvian democracy, is not someone who can be trusted, whether they completed their sentence or were pardoned…I speak of the guilty.”

Mauricio Mulder, Congressman of the Apra party, said that he would not relent in his intention to publish a list with the identities of more than three thousand ex-prisoners for terrorism. He also claims to be advancing negotiations with the President in order to define whether state or presidential power may carry out the aforementioned publication.

     Peruvian Penal Code

     Article IX – Goals of Sentencing and Security Measures

     The criminal sentence has a preventative, protective, and re-socializing function. Security measures aim at pursuing treatment, guidance, and rehabilitation.

 

It’s important to note that Mr. Fujimori has taken personal credit for the triumph over the subversive groups Shining Path and MRTA, utilizing their defeat as his principal slogan in his 1995 and 2000 reelection campaigns. Nonetheless, subsequent investigations headed by the Truth and Reconciliation Commission revealed that other factors were responsible for the destruction of the subversive phenomenon:

“…the coup had popular backing and Fujimori received a vote of confidence in hopes for change.  It was his luck that the vote was a few months after the DINCOTE police managed to capture Guzmán, the result of a prolonged and patient investigation which had little input from the new government of Fujimori.  He appropriated the police success, which became a fundamental part of his popularity in subsequent years.”   (2.3. La década de los noventa y los dos gobiernos de Alberto Fujimori. Capítulo 2. Los actores políticos e institucionales. Tomo III. Informe Final de la CVR).

 

3. On Nov. 26, 2007, the cabinet members of Alberto Fujimori’s administration who were present during the April 5, 1992, coup d’état and who decided to stay despite the rupture of constitutional order, received the lightest sentences possible under Peruvian law.

 

The Special Penal Division of the Supreme Court senenced Juan Briones Dávila, former Secretary of the Interior, to ten years of prison — the lightest term possible — for the crimes of rebellion and kidnapping, for having participated in the Apr. 5, 1992, coup. The Court also found former ministers Jaime Yoshiyama, Carlos Boloña, Absalón Vásquez, Víctor Joy Way, Óscar de la Puente, Jaime Sobero, Alfredo Ross, Víctor Paredes and Augusto Antonioli guilty as accomplices and gave them suspended prison sentences.  They must mutually pay three million Peruvian new sols in civil reparations to the state. Likewise, each of the ministers will be unable to hold any public office for the term of their sentences.  No sentence was imposed on the ex-ministers Augusto Blacker Miller, Fernando Vega, and Víctor Malca, since they failed to appear in court.

 

In Alberto Fujimori’s case, his sentence will depend on whether the Chilean judicial authorities include this case in his extradition.  

 

     Peruvian Penal Code

     Article 346- Rebellion

     Whoever rises up in arms in order to change the form of government, overthrow the legally constituted government or suppress or modify the constitutional regime, will be sentenced to not less than ten nor more than twenty years and expatriation. 

     Article 152 – Kidnapping

     Whoever deprives another of his or her personal liberty, whatever be the motive, purpose, method, or circumstance, or the time that the victim suffers loss or restriction of his or her liberty, will be sentenced to not less than ten nor more than fifteen years.

 

4. President Alan García’s statements as a “lawyer” about the Wolfenson case.

According to Alan García, “Mr. Wolfenson is just a victim of revenge and political persecution.  As a lawyer, I think the three years of house arrest that he completed should be added to the three years of actual jail time he served, in order to consider his sentence of four years completed.”

Mr. García made these declarations in spite of their being contradictory to those made by Peru’s Constitutional Court, which has repeatedly declared in other cases that it is not possible to compare prison time with house arrest.

It should be noted that Moisés Wolfenson was sentenced for having received government money in order to support the Fujimori administration through the media. The Judiciary attributed the crimes to embezzlement, illicit association for criminal purposes, and conduct against the public tranquility.