Over recent months Peru’s judiciary has attracted a lot of unwanted attention by issuing a series of highly controversial rulings that have been negatively received by the general public. The judiciary’s actions have caught the attention of both the Ollanta Humala government and international human rights organisations, which have expressed concerns that these may have promoted impunity and undermined the defence of human rights in Peru. Despite the fact that at least in one instance the Inter-American Court of Human Rights (CorteIDH) has already forced the judiciary to revise its ruling, Peruvian judges appear to remain contrarian, opening themselves up for more criticism. This situation may prompt President Humala to opt for an extensive judicial reform.
Since former president Alberto Fujimori (1990-2000) carried out an extensive purge of the judiciary during his 1992 autogolpe, Peru’s judiciary has had to work hard to regain some of its credibility while at the same time maintain an image of political independence. After Fujimori was stripped of the presidency by congress, the judiciary did manage to make some important advancements - during the governments of Alejandro Toledo (2001-2006) and Alan García (2006-2011) - in handling many of the corruption and human rights violations cases that took place under Fujimori’s authoritarian rule. Indeed, Peru’s justice system showed that it was capable of going after even some of the highest ranking members of the Fujimori government, including the former president himself, who was handed down a 25-year prison sentence in 2009. This earned Peru praise from international human rights organisations and institutions, including the Inter-American Human Rights Commission (ComisiónIDH), for redressing human rights abuses perpetrated by the State.
However, fast-forward a couple of years and it seems that he situation has changed drastically, with Peruvian judges all of a sudden appearing reticent to hand down similar sentences in other prominent human rights violations cases. In fact, some of the recent court rulings go against what local and international courts have already established, prompting questions about the competency of some of Peru’s top magistrates.
The mishaps began back in July, when the supreme court’s penal chamber ruled that the so-called ‘Barrios Altos massacre’- in which the government-sponsored military death squad, the Grupo Colina, killed 15 people in Lima’s Barrios Altos neighbourhood in 1991- did not constitute a crime against humanity and were common murders. Thus, the president of the chamber, Judge Javier Villa Stein, resolved that all those implicated in the case, including Fujimori (who was convicted for these crimes) and his former top advisor, Vladimiro Montesinos, should have their prison sentences reduced from 25 years (the maximum allowable under Peruvian law) to 20 years.
The ruling triggered indignation, not only from the victims' relatives and local and international human rights organisations, but also from the government. Justice Minister Eda Rivas and Prime Minister Juan Jiménez Mayor (who was the acting justice minister until 23 July) rejected the ruling and said that the government would challenge it. In addition, the head of the judiciary, César San Martín, who presided over the trial that convicted Fujimori in 2009, also frowned upon the ruling, pointing out that it went against what had already been determined by the CorteIDH in 2001, when it ordered the Peruvian State to conduct a full investigation into the human right violations committed in the Barrios Altos incident and punish those responsible accordingly. San Martín added that this being the case, the ruling left Peru open to being sanctioned by CorteIDH for its inability to follow its instructions.
Yet Villa Stein, San Martín’s predecessor as the head of the judiciary, staunchly defended the controversial ruling, arguing that it had been handed down unanimously and independently by the chamber's sitting judges. As such, Villa Stein said that the ruling should not only stand, but must be respected; otherwise, the judiciary’s authority would be undermined. On this point San Martín agreed with Villa Stein and said that he and the government were powerless to change the ruling.
One crisis averted
Any direct attempt by the government to change the ruling, as Villa Stein pointed out, would have negative consequences as it would be construed as an attempt to influence the supreme tribunal and would ultimately erode the independence of the Peruvian judicial branch. Nevertheless, the government found a way to exert pressure to get the ruling changed. At a CorteIDH follow-up hearing of the case on 27 August, the government's representatives made it clear that they were in disagreement with the ruling, which they recognised was incongruous with the CorteIDH’s previous ruling and intimated that the government was preparing a challenge. After the hearing, the CorteIDH issued a resolution (on 24 September) ordering Peru’s judiciary to annul the ruling, which it found to be “incompatible with the commitments assumed by Peru following its ratification of the Inter-American convention on Human Rights”. As predicted by San Martín, the CorteIDH warned that if Peru failed to annul the ruling, the country could be sanctioned.
A number of Peruvian judges reacted negatively to the resolution, considering that it was “an unacceptable intromission” in the country’s internal affairs. Villa Stein said that it represented “an affront to Peru’s sovereignty” and warned that it could set a “negative precedent”. Yet San Martín said that Peru had to abide by the CorteIDH’s resolution since it is a superceding court. President Humala seconded San Martín and declared that the government would ensure Peru abided by the resolution of the CorteIDH, whose jurisdiction it fully recognises, sparking fears that highly damaging full-blown judicial crisis would ensue.
However, a few days later and unexpectedly, Villa Stein himself conceded that Peru must accept the CorteIDH’s resolution, even if his chamber’s ruling had “perfectly adhered to international standards”. The following day, San Martín confirmed that the penal chamber had annulled the ruling and would now seek to convene a new judges’ panel, which is to deliver a new ruling.
A new crisis looms
While Villa Stein’s decision to back down averted what was shaping up as a major confrontation between the judiciary and the government, it was not long before the tensions were heightened once again. On 15 October in yet a another ruling that appeared to favour Fujimori’s associates (see sidebar), a Callao criminal court absolved Montesinos and two former army officers of charges of premeditated murder in relation to another prominent human rights violation case, known as ‘Chavín de Huántar’. Chavín de Huántar was the code name of the 1997 military commando rescue operation that freed the people being held hostage by members of the Movimiento Revolucionario Túpac Amaru (MRTA) for four months at the residence of the Japanese ambassador in Lima. While the operation, in which 71 of the 72 hostages were rescued alive, is considered to be Peru’s most successful military rescue operation ever, it has been tarnished in recent years by claims that at least three of the 14 MRTA members killed were summarily executed after they had surrendered.
Montesinos, the architect of the feared national intelligence service (SIN) - believed to have been behind many of the atrocities perpetrated by the Fujimori administration - has been accused by the families of those allegedly executed MRTA members of ordering their extrajudicial killing. This case was taken to the CorteIDH in 2003, prompting the Peruvian government to launch its own investigation. However, in the latest ruling two of the three sitting judges found that the evidence presented by the attorney general’s office was insufficient to determine a “parallel chain of command” running from Montesinos to the military commanders in charge of the operation.
Yet the court acknowledged that sufficient evidence had been presented in support of the claims that at least three MRTA rebels had been captured alive and were later executed. Pointedly, the court reserved its judgement on a fourth defendant, (ret.) Colonel Jesús Zamudio Aliaga, who failed to attend the court session. Zamudio, who actively participated in the operation, has been accused of having delivered the captured rebels to SIN officers embedded in the operation, who allegedly carried out the execution.
This ruling has been met with disbelief. Gloria Cano, a lawyer from a local human rights group (Aprodeh) who is representing the families of the victims, complained that “The court has issued a very contradictory ruling…it could not determine that orders were given, but yet found that arbitrary executions nonetheless took place”. In Cano’s opinion, the ruling will only strengthen the case against the Peruvian State at the CorteIDH. Perhaps in an attempt to avoid another order to overturn the ruling, the attorney general’s office has announced that it will also seek to annul this case at the supreme court. The latest ruling may not have involved Villa Stein, but any annulment request surely would, which could once again trigger a crisis.
Taking these cases into account, President Humala may soon decide to include judicial reform in his government’s agenda and, what is more, make it a priority.
- San Martín apologises for Barrios Altos ruling
On 2 August the head of Peru’s judiciary, César San Martín, publicly apologised on behalf of Peru’s judges for the ruling made by the supreme court's penal chamber that reduced the sentences of those implicated in the Barrios Altos case. San Martín said that although he disagreed with the ruling, he would respect it, considering that the judges had acted “conscientiously and applying the criteria they considered to be correct”. However, he then remarked that all judges are “human” and can make mistakes, adding that “we must be humble and recognise this and ask for forgiveness”.
- Four in a row for Montesinos
The 15 October ruling by the Callao criminal court was the last in a series of rulings of cases involving Valdimiro Montesinos, in which the former government strongman was favoured. On 29 August he was absolved from involvement in a case in which 196kg of cocaine were found in the presidential palace in 1996. The courts had attempted to reduce the sentences of those involved in the Barrios Altos case on 22 July; while on 4 October he was also cleared in the case involving the embezzlement of PEN1bn from a military police pensions’ fund between 1990 and 2000.
End of preview - This article contains approximately 1699 words.
Subscribers: Log in now to read the full article
Not a Subscriber?
Choose from one of the following options
