Ronald Gamarra: “The ruling of the Constitutional Court does not comply with what was ordered by the Inter-American Court of Human Rights in the Fujimori case in 2018”

The Inter-American Court of Human Rights (IACHR) this afternoon requested the Peruvian State to refrain from executing the judgment of the Constitutional Court that reinstates the pardon of former President Alberto Fujimori, who was serving a 25-year sentence for crimes against humanity in the Barrios cases Altos and La Cantuta.

About this decision, Infobae interviewed Ronald Gamarra, lawyer for the victims of Barrios Altos and La Cantuta in the Fujimori trial, who emphasized that the provisions of the IACHR are mandatory and are a prelude to the annulment of the former president's pardon.

- The Inter-American Court of Human Rights asked the Peruvian State to refrain from executing the ruling of the Constitutional Court in the case of Alberto Fujimori. Does this decision come in time before I release the former president?

- The first thing to say is that the Inter-American Court of Human Rights is part of our system of administration of justice. In addition, it is part of the national legal order. Therefore, its decisions are mandatory for the Peruvian State. Not only by the Executive, but by the Judicial, the Constitutional Court, the administrative authorities and, even, the electoral justice system. Therefore, what has been decided by the Court, albeit provisionally, is mandatory.

- What if it's not fulfilled?

- Peru is not Venezuela. Peru is not a State that does not respect international commitments. There is not one case in which the decisions of the Court have not been complied with. No democratic State could be put in the circumstance of disrespecting a decision of the Court. International treaties are signed to be complied with by States. Peru has signed the American Convention on Human Rights and recognized the powers of the Court. Therefore, it remains only to abide by. I see no way in which the Peruvian State can, say, demarcate from the decisions of the Court. Now, the decision they have taken does not surprise me at all. This is what was expected in view of the judgments in the Barrios Altos and La Cantuta cases, the consistent jurisprudence of the court itself and, particularly, taking into account the 2018 decision. The ruling of the Constitutional Court does not comply with what was ordered by the Court in the Fujimori case in 2018. And this is the consequence.

- What comment do you have on the arguments put forward by Judges Blume, Sardón and Ferrero to restore Fujimori's pardon?

- Well, I want to say it with all due respect, but it's a very poorly substantiated sentence. And that for the purposes of what really matters, it has not ruled in accordance with the standards required by the Inter-American Court of Human Rights in its 2018 resolution. Let us recall that the Court said that national jurisprudence should rule in response to whether the pardon or the measure adopted by the Peruvian State responded to the principle of proportionality that must exist between Alberto Fujimori's right to life, integrity and health. That's on one side. On the other hand, the right of victims to access justice for the correct execution of the sentences pronounced in the Barrios Altos and La Cantuta cases, which condemned Alberto Fujimori. That standard or big question has not been answered in the decision of the majority of the Constitutional Court.

- Other aspects that were not included in the sentence?

- Another standard that has not been taken up is that if, as a result of this principle of proportionality, it was possible to humanely pardon Fujimori. This question arises in the sense that if Fujimori had requested the victims' forgiveness, he had contributed justice and repaired the damage caused. The third point is what the effect of that sentence was going to be, that is, of humanitarian pardon. Those three questions or standards have not been taken into account by the court. In any case, they do not have answers in the Constitutional Court's ruling. Therefore, the decision taken by the Court, although provisional, is fair.

- Among the justices' arguments are that there were no irregularities in the pardon of Fujimori, they cite sections of the American Convention on Human Rights that establish the possibility of pardon for persons sentenced to death, and refer to a pronouncement that the Inter-American Commission on Human Rights ( IACHR) issued in Nicaragua, in 1981, regarding the granting of pardons in cases of persons convicted of serious crimes. What do you think?

- Well, they're not enough or correct. They refer to decisions that have not been understood in their context by the Constitutional Court. None of these cases can be assimilated to the subject because none of them speak people convicted of human rights violations. And this is a specific issue because we are talking about Fujimori being convicted of serious human rights violations. The Court has said that Barrios Altos is a serious violation of human rights and La Cantuta is a crime against humanity. Thus, none of these quotations is applicable to the case of a convicted person for serious violations of human rights. Secondly, the Inter-American Commission on Human Rights quotation on Nicaragua is outdated and, moreover, it does not take into account that it says that pardon can be obtained, and if that is not possible, other alternatives will be sought. Well, the correct quote would have to be read to the extent that it would not be possible. Then the pardon would not proceed. The judgment, moreover, has little reference to the consistent jurisprudence of the Inter-American Court of Human Rights developed particularly to Peruvian cases.

- Do you consider that the ruling has been more political than properly adhered to constitutional standards in the defense of human rights?

- I believe that Judges Blume, Ferrero and Sardón have imposed a particular political preference. They wanted to release a person for whom they have a political affection.

- And have they taken advantage of the current incomplete composition of the Constitutional Court to take this decision forward?

- Yes, of course. I don't care that magistrates have a political choice. What is more, it is desirable and anyone who is interested in the country must have a political stance. But the other thing is to be part of an institution like the Constitutional Court. Basically, legal reasons must prevail there, rather than its political inclinations.

- Following the order of the Inter-American Court of Human Rights not to execute the judgment of the TC, the Fujimori case will be heard again in that institution. And most likely, the pardon will be reversed and the former president will return to prison.

- Yes, I have no doubt. A reflection on those who, say, support Alberto Fujimori. I think they hurt him by looking for quasi-criminal solutions that, in the end, are going to be reversed and he is, say his followers, playing with his life. Fujimori would have to leave when appropriate. No one should die in prison. I do not think that pardon is the way but other forms because the crimes for which he has been convicted are unforgivable. You can't forgive him. There can be no pardon. That does not mean that I die in prison because there are other avenues that can be home prison with electronic surveillance or release permits. Both serve the same objective, but they do not harm the families of the victims or the Inter-American System in that their crimes are unforgivable.

- Do you agree that the presentation by Judge Marianella Ledesma was an example of what the defense for human rights should be and that pardons such as the one granted to Fujimori should not have a shadow of irregularity?

- It is a whole plea for memory, justice and respect for human rights as the fundamental basis of a democracy. There is an abundant quotation to the judgments of the Inter-American Court of Human Rights. It is a good piece of law that reflects the best of the votes on this subject.

- What legal implications would the TC ruling have for Fujimori in cases that are being prosecuted such as Pativilca and forced sterilizations?

- In principle none because we must not forget that the chamber that judges Fujimori in the Pativilca case applied conventional control and declared the decision of the pardon inapplicable. So, that the pardon “revive” does not remove the decision of the courtroom which, at the time, said that the pardon is not applicable to the particular case. That's going to continue.

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