Fujimori on Trial :: Fujimori procesado

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Extradition Cases

(español)

 

I. Cases presented by the Peruvian government to the Chilean Supreme Court for Alberto Fujimori’s extradition:

 (Fujimori may only be tried for the cases granted by the Chilean Supreme Court. Granted cases are marked *. )

1. Forceful entry*

Fujimori broke into the dwelling of Trinidad Becerra, wife of Vladimiro Montesinos, on November 7, 2000.  Fujimori has pled guilty to this crime in a summary proceeding.

Links in Spanish:

http://www.larepublica.com.pe/content/view/181411/483/http://www.andina.com.pe/NoticiaDetalle.aspx?id=151374http://www.jornada.unam.mx/ultimas/2007/10/13/admite-fujimori-que-ordeno-allanar-casa-de-vladimiro-montesinoshttp://www.terra.com.pe/noticias/articulo/html/act988690.htm

Peruvian Penal Code: 361 and 376

 

2. Payment SUNAT –Borobio

Illicit association for criminal purposes, taking advantage of his office as President to use government funds to pay Daniel Borobio of Argentina, who advised him on his reelection campaign.

Peruvian Penal Code: 317 and 387

 

3. Telephone wiretapping* 

Illicit association for criminal purposes.  Placing a hierarchical structure, with functional division of roles, and, among other purposes and criminal practices, to obtain information through illegal interception of communications among his political adversaries, as has occurred in the present case, with the intention of staying in power.

Peruvian Penal Code: 162, 317, and 387

 

4. Faisal Aprodev

Using government funds and creating a web page to spread information intended to misinform, discredit, and weaken the prestige of various important persons who opposed his political regime, establishing the “Association for Defense of the Truth (APRODEV), represented by the Argentinean Héctor Ricardo Faisal Fracalosi, to whom was delivered a monthly payment of approximately US$6,000 for two years, and other monies.

Peruvian Penal Code: 317 and 387

 

5. Chinese Tractors and communication media*

Illegal purchase of chinese tractors without proper legal procedures, exempting said transaction from public bidding, acquiring in one contract 3,000 tractors among other implements for a price of U.S.$23,220,865, and in a second contract 1,100 tractors and other machinery for US$34,767,313, to be distributed in agricultural communities in Peru, with the purpose of perpetuating himself in power. 

Also, actions aimed at controlling the media:  1) Cable Channel CCN – Channel 10 owned by Manuel Ulloa Van Peborg, and 2) the newspaper Expreso whose owner was Eduardo Callmel del Solar; he ordered Vladimiro Montesinos Torres to buy 75% of the shares of the cable channel for U.S.$2,000,000. Also, payments to the owner of the newspaper “Expreso” Eduardo Callmel del Solar, in order to improve his government’s image prior to a reelection.  This money came from funds diverted by the General Commanders of the Armed Forces to SIN.

Peruvian Penal Code: 317, 361, and 387

 

6. Medicinas Chinas

Illegal purchase of Chinese medicines among other goods, violating the responsibilities and duties of his office, during the period 1990-2000, without any study of feasibility.  The medicines had expiration dates close to their arrival in Peru, and no certificate of analysis or safety inspections were demanded, but even so they were distributed.  The various acquisitions were destined for Health, Agriculture, Education, and the Presidency, at a cost greater than US$121,000,000.

Peruvian Penal Code: 317 and 384

 

7. $15,000,000*

Illegal transfer of US$10,000,000 entitled “compensation for service time”, being a misappropriation of government money rising to US$15,000,000.    Crime of ideological falsehood, for having inserted in an Emergency Decree (a legal regulation equivalent to a law that the Executive issues in extraordinary situations, but only in economic and financial matters) that he signed and promulgated as President, with arguments and false contents related to a supposed preventive defense of national security on the Columbian border, by means of the false execution of the so-called “Sovereignty Plan”.

Peruvian Penal Code: 317, 387, and 428

 

8. Defecting legislators*

He directed and designed the “Recruitment” plan, which by means of delivery of money to opposition congressmen so they would give their unconditional support to the government party, had as its purpose the obtaining at any cost of a parliamentary majority submissive to the Executive Power, in order to control the activities of the Congress of the Republic and impede the effective investigative work of the Legislative Power.

Peruvian Penal Code: 317 and 399

 

9. Diversion of funds*

Transactions of the Military Police Pension Account, to produce “commissions” which would be added to the so-called “contingency fund”.  In this way he obtained patrimonial benefits, for his own account, of Peruvian government monies in order to utilize them to pay for political campaigns, with the aggravating factor that these funds proceeded from the “emergency zone” component which also covered financial assistance to people living in needy areas of the country.

Peruvian Penal Code: 317, 387, 427, and 428

 

10. SIE basement  (Gorriti – Dyer)*

1. The victim Samuel Edward Dyer was detained at the International Airport “Jorge Chávez” on July 27, 1992, and later brought to the facilities of the SIE, specifically to the basement of said establishment.  He was kept in a 3×3 meter cell that had a type of Turkish bath but no water nor toilet.  When the victim left the basement he saw Fujimori walking through the facilities of the Army Intelligence Service (SIN), accompanied by a group of people with oriental features.    

2.  The victim Gustavo Gorriti Ellenbogen on April 6, 1992, was seized at his house by personnel of the SIE, brought in a vehicle to the SIE facilities, and transferred to the basement, where he remained in one of the rooms until 2:00 or 3:00 the next morning.  He was then sent to the police headquarters.  

3. Grievous bodily harm and kidnapping of Susana Higuchi, ex-wife of Alberto Fujimori.

4. Grievous bodily harm and kidnapping of the former SIE agent Leonor La Rosa Bustamante.

5. Hans Himmler Ibarra Portilla, ex agent of the SIE, was kidnapped on January 22, 1997, when his superiors suspected that he was involved in the sending of confidential or secret information about intelligence plans to the media.

Peruvian Penal Code: 121, 152, 397, and 141

 

11. Barios Altos – La Cantuta*

Assassination of 15 persons and grievous bodily harm to four others.  Participation in the planning and execution of the crimes and killings of “Barrios Altos” and “La Cantuta”, actually carried out by members of the extermination group called “Colina”.  This includes the active participation as Chief of State and Supreme Commander of the Armed Forces in establishment, as a response to the increase in the terrorist phenomenon, of a dirty war policy, that involved the permanent, systematic, and selective violation of Human Rights.  

1. Barrios Altos.- In November of 1991, the Colina Group suddently and violently entered the building at 480 Huanta St. in Barrios Altos, Lima, where a social activity known as a “pollada” was taking place, carrying war arms, pistols, and machine guns with silencers, and wearing black helmets.  They obliged the persons present to throw themselves to the ground in order to then riddle them with bullets; the indiscriminate shooting, in addition to the dead, left 4 persons with grievous bodily harm.

2. La Cantuta.- On July 18, 1992, in the early morning hours, the Colina Group violently entered the National Education University Eduardo Guzmán y Valle “La Cantuta”, where they kidnapped nine students and a professor; later they tortured and killed them.  They took them to a place on the outskirts of Lime with the purpose of “disappearing” them.

Peruvian Penal Code: 108, 121, and 1 of Legal Decree  25,592

 

12. Emergency Decrees

Sending of “secret” Emergency Decrees through which was approved the disposition and utilization of funds from the privatization of businesses of the Peruvian State and, in this way, to formally justify extraordinary budgetary increases for the Ministries of Defense and the Interior.

Peruvian Penal Code: 292, 293, 317,  322, 384, 389, and 428

 

13. Amplification of extradition petition for forced disappearance

Offences against: Kenneth Ney Anzualdo Castro, Martín Roca Casas and Justiniano Najarro Rúa, who are tied to acts of terrorism, and who were deprived of their liberty during the presidency of Fujimori, without result with respect to their appearance.

Peruvian Penal Code: 320, 395, 396, and 397

 

 

Source:  Decree of the Supreme Court of Chile dated September 21, 2007

 

 

II. Relevant articles of the Peruvian Penal Code and pertinent legislation

 

- Article 108

Aggravated Murder – Assassination

Whoever kills another person under any of the following circumstances shall be sentenced to not less than 15 years of prison: 

1. With cruelty, for profit, or for pleasure;

2. In order to facilitate or hide another crime;

3. With great cruelty or premeditation;

4. By fire, explosion, poison, or any other method capable of endangering the life or health of other persons

 

- Article 121

Grievous bodily harm

Whoever causes grievous harm to the body or health of another person shall be sentenced to not less than three nor more than eight years of prison.  The following are considered grievous harm:

1. Those that put the life of the victim in imminent danger.

2. Those that mutilate a member or principal organ of the body or impair its function, cause incapacity for a person’s work, disability, or permanent psychic anomaly, or cause serious and permanent disfigurement. 

3. Those that inflict any other harm to the bodily integrity, or the physical or mental health of a person that requires thirty or more days of assistance or rest, according to a medical prescription. 

When the victim dies because of the injury and this result was foreseeable by the actor, the penalty shall be not less than five nor more than ten years.

 

- Article 152

Grievous bodily harm

Whoever causes grievous harm to the body or health of another person shall be sentenced to not less than three nor more than eight years of prison.  The following are considered grievous harm:

1. Those that put the life of the victim in imminent danger.

2. Those that mutilate a member or principal organ of the body or impair its function, cause incapacity for a person’s work, disability, or permanent psychic anomaly, or cause serious and permanent disfigurement. 

3. Those that inflict any other harm to the bodily integrity, or the physical or mental health of a person that requires thirty or more days of assistance or rest, according to a medical prescription. 

When the victim dies because of the injury and this result was foreseeable by the actor, the penalty shall be not less than five nor more than ten years.

 

- Article 162

Telephone Interference

Whoever improperly interferes with or listens to a telephone or similar conversation shall be sentenced to not less than one nor more than three years of prison.

If the actor is a public employee, the penalty shall be not less than three nor more than five years and disqualification in accordance with Article 36, paragraphs 1, 2, and 4.

 

- Article 292

Violation of health medicines

Whoever violates the measures imposed by law or by the authorities for the introduction into the country or the propagation of a sickness or epidemic or of a contagious disease or plague shall be sentenced to not less than six months nor more than three years and with ninety to 180 day-fines.

 

- Article 317

Illegal association

Whoever is part of an association of two or more persons for the purpose of committing crimes shall be sentenced, for the fact alone of being a member, to not less than three nor more than six years. 

When the association has the purpose of committing crimes of genocide, against the security and public tranquility, against the State and the national defense, or against the Powers of State and the constitutional order, the penalty shall be not less than eight years, 180 to 360 day-fines, and disqualification in accordance with Article 36, paragraphs 1, 2, and 4.

 

- Article 320 

Terrorism

Whoever provokes, creates, or maintains a state of anxiety, alarm, or terror in the population or in a sector of the population, acting against the life, body, health, liberty, personal security, or physical integrity of persons, or against their properties, against the security of public buildings, streets, or means of communication or transportation of any type, energy or transmission towers, motor installations, or any other property or service, using violent methods, armaments, explosive materials or devices, or any other means capable of wreaking havoc or serious disturbance of the public tranquility or affecting international relations or social or state security, shall be sentenced to not less than ten years of prison. 

The punishment shall be:

1.- Prison of not less than 15 years if the actor acts as a member of an organization that, in order to achieve its goals, whatever they may be, uses as its means the crime of terrorism as defined in Article 319.  

The punishment shall be not less than 20 years when the actor belongs to an organization as its chief, ringleader, or director.

2.- Prison of not less than 18 years if injuries to persons or damage to public or private property occur as an effect of the crime.

3.- Prison of not less than 20 years if minors are made to participate in the commission of the crime. 

4.- Prison of not less than 20 years if the damage to the public or private property impedes, totally or partially, the delivery of essential services to the population.

5.- Prison of not less than 20 years when, for terrorist purposes, there is extortion or kidnapping of persons in order to obtain release of persons from prison or any other undue advantage on the part of the authorities or private persons, or when with identical purposes there is a hijacking of any means of air, water, or land transportation, whether national or foreign, changes its itinerary, or if the extortion or kidnapping has as its purpose the obtaining of money, property, or any other advantage.

6.- Prison of not less than 20 years if, as a result of the commission of acts contained in Article 313, grievous bodily injury or death are produced, provided that the actor should have foreseen these results.

 

- Article 322

Whoever is part of an organization of two or more persons in order to instigate, plan, provide, organize, broadcast, or commit acts of terrorism, immediately or otherwise, as set forth in this Chapter, shall be sentenced, for the fact alone of being a member, to prison of not less than 10 nor more than 20 years.

 

- Article 384

Collusion

Any public employee or civil servant who, in the contracts, supplies, bidding, price competition, auction, or any other similar operation in which he or she is involved by reason of his position or special commission, defrauds the State or any entity or organism of the State, according to law, acting with persons interested in the agreements, adjustments, liquidations, or supplies shall be sentenced to not less than three nor more than 15 years.

 

- Article 387

Misappropriation of funds

Any public employee or civil servant who appropriates to himself or herself or uses, in any manner, for himself or herself or another person, funds or effects whose reception, administration, or custody is entrusted to him or her by reason of his or her position shall be sentenced to not less than two nor more than eight years.

It is an aggravating factor if the funds or effects were intended for public assistance or programs of social support.  In these cases, the sentence shall be not less than four nor more than ten years.

If the actor, through fault, gives occasion to another person to appropriate funds or effects, he shall be sentenced to not more than two years or to community service of 20 to 40 work days.  It is an aggravating factor if the funds or effects were intended for public assistance or programs of social support.  In these cases, the sentence shall be for not less than three nor more than five years.

 

- Article 395

Passive corruption

Any Magistrate, Arbiter, Prosecutor, Expert, Member of an Administrative Tribunal, or any similar person who solicits and/or accepts a donation, promise, or any other advantage, knowing that it is made to influence the decision of a matter that is pending before him, shall be sentenced to not less than six nor more than 15 years and disqualification in accordance with Article 36, paragraphs 1, 2, and 4 of the Penal Code, and with 180 to 360 day-fines. 

The agency in which the person who committed the crime is registered shall be notified of the disqualification that is incidental to the imprisonment imposed on the person, in order that within five (5) days the agency may proceed to suspend the person’s registration.

 

- Article 396

Corruption of jurisdictional assistants – Diminished passive corruption

If in the case of Article 395 the person is judicial, either a judicial assistant or holding some similar position, the sentence shall be for not more than four years.

 

- Article 397

Taking undue advantage of a position

Any public employee or civil servant who improperly, in a direct or indirect manner or by a simulated act, benefits himself through any contract or operation in which he takes part by reason of his office, shall be sentenced to not less than two nor more than five years.

 

- Article 399

Active corruption of a civil servant

Whoever tries to corrupt a public employee or civil servant with gifts, promises, or advantages of any type in order that he or she do or fail to do something in violation of his or her obligations shall be sentenced to no less than three nor more than five years.

If the actor tries to corrupt so that the public employee or civil servant to do or fail to do an act proper to his responsibilities, without neglecting his obligations, the sentence shall not be less than two nor greater than four years.

 

- Article 427

Falsification of documents

Whoever makes, in whole or in part, a false document, or doctors a true document that could give create a right or obligation or serve to prove a fact, with the purpose of utilizing the document, shall be sentenced, if some damage could occur, to no less than two nor more than ten years, and to 30 to 90 days of day-fines if it is a public document, public register, valid title, or any other document transferable by endorsement or by bearer, and to no less than two nor more than four years, and to 180 to 360 day-fines it is a private document.

Whoever makes use of a false or falsified document, as if it were legitimate, knowing that its use could cause some damage, shall be sentenced in his case to the same penalties.

 

- Article No. 1 of the Decree Law No. 25,592

Any public employee or civil servant who deprives a person of his or her liberty, ordering or carrying out actions that cause his or her disappearance, duly proved, shall be sentenced to no less than 15 years and disqualification according to Article 36 paragraphs 1 and 2 of the Penal Code.