Does the IACtHR have the competence to monitor Compliance with its Judgments?
The analysis of both 2023 decisions of the CC and the IACtHR allows for two preliminary conclusions: on the one hand, the CC decision does not provide any new substantive arguments in favor of a pardon; on the other hand, the IACtHR’s response essentially serves as a reminder of its competence and authority with regard to the monitoring of compliance with judgments and the limitations of this competence.
In terms of the substance of the pardon, the IACtHR demonstrates that the CC decision fails to convince as to the gist of the issue: the balancing and ultimately reconciliation of Fujimori’s right to life and health (which speak in favour of a pardon) with the victims’ right to access justice (which speaks against a pardon). The CC should have taken into account the standard set out in the 2018 IACtHR decision, especially examining the connection between the imprisonment and a serious risk to Fujimori’s life and/or health. In fact, the 2023 IACtHR decision constitutes a stark reminder of the necessity for such a justification (see para. 56). At the same time, the IACtHR does not categorically exclude the granting of a humanitarian pardon but stresses the need of a sufficiently reasoned justification focusing on the above-mentioned interests. This is convincing since, as already argued before on this blog, granting a pardon is only legitimate if it is rooted in a genuine and sufficiently demonstrated humanitarian reason.
Unfortunately, the 2023 CC decision has not complied with the IACtHR guidance and lacks a solid and convincing foundation. On one hand, references to phrases like “advanced age” or “deteriorating health” do not suffice to justify the necessity or proportionality of the pardon. To be sure, while an “advanced age” can be considered as an indication of a general and progressive danger to the integrity and culmination of a person’s life, it does not necessarily demonstrate the specific risk to the respective person’s life and/or health. Moreover, such an affirmation should be supported by a relevant medical diagnosis supporting the alleged risk. Instead, the medical report mentioned by the 2023 IACtHR decision speaks in favor of the stability of Fujimori’s health and thus demonstrates how little effort the Peruvian State undertook to objectively verify the actual state of Fujimori’s health before proceeding with his release. Additionally, the medical care given to Fujimori speaks against the necessity of a pardon.
On the other hand, admittedly, the CC’s reference to Fujimori’s completion of two-thirds of the sentence neutralizes the argument that a pardon for Fujimori would imply impunity (see here). It is undisputed, and also recognized by the 2023 CC decision, that this sentence results from a legitimate domestic decision, which took into account the gravity of the zalo database crimes and Fujimori’s degree of involvement. While this sentence, as in principle any, calls for its full execution, it would be plainly incorrect, as shown elsewhere, to justify such a full execution with an alleged human right to a penalty. Perhaps the most important argument against such a full execution is the ever-present risk of a cruel treatment, that is, that the sentence exceeds the “inevitable level of inherent suffering”, which itself is of concern to the IACtHR (see decision of 30 May 2018, para 49). To be sure, the 2023 IACtHR decision does not invoke a victims’ right to a penalty or something along those lines but rather aims to prevent an arbitrary decision, bare of any judicial control in line with the IACtHR’s established standard, which would therefore interfere with the victims’ right to access to justice (see IACtHR, decision of 19 December 2023 para. 55). In other words, one must distinguish between the legitimate right of victims to a judicial (including penal) remedy and a (human) right to a (certain, long) penalty. The only line which then can be drawn between a legitimate and an arbitrary pardon runs along the difference between a convincingly and an unconvincingly reasoned pardoning decision, i.e., there is a minimum of reasoning required to justify a pardon.