On July 23th, the media reported a new request for a pardon requested by former President Alberto Fujimori Fujimori to the Ministry of Justice, which again generates controversy not only in the context in which it occurs, but mainly because of the character and what he represents in national politics, refreshing in the collective unconscious the execrable deeds for which he was sentenced to 25 years in prison[1]. Beyond the categorical denial given by President Pedro Pablo Kuczinsky, who ruled out the granting of such benefit, he said he was in agreement with the approval of a law that favors elderly convicts to finish serving their sentence under house arrest, as he pointed out during the electoral campaign, leaving the decision in hands of the current Parliament with a pro-Fujimori majority.
Under this juncture, we consider it illustrative to make a brief analysis of the substantive aspects of the figure of the Pardon, presidential grace that in our opinion should remain in force in the national order, because beyond the long constitutional tradition, it constitutes a suitable, fast and effective mechanism against serious judicial violations, proof of this is the recent common Pardon granted to Ms. Silvana Buscaglia Zapler, through Supreme Resolution N. 108-2016-JUS, published in the official newspaper El Peruano on 28/07/2016, who was sentenced to six years and eight months for having assaulted the police officer Elías Quispe Carbajal on December 17, 2015; penalty clearly disproportionate according to the nature of the crime charged (beyond the questioning regarding its configuration) due to the minimum lesivity of the protected legal good in the assumption of resistance to authority in comparison with other criminal figures of special gravity.
PARDON AS A PRESIDENTIAL PREROGATIVE.
Pardon is understood as the waiver made by the State with respect to the execution of the sentence being served by a person convicted by a final judgment. It is the pardon of the sentence imposed, an attribution that by constitutional mandate corresponds solely and exclusively to the Head of State, in accordance with the provisions of Article 118, paragraph 21 of the Constitution[2], under the presidential system to which we adhere.
It has been included in our Criminal Code as a cause for the extinction of the execution of the sentence (Art. 85° and 89°), a decision that, once granted by means of the corresponding Supreme Resolution, acquires the quality of res judicata, that is to say, UNMUTABLE, under the protection of the provisions of Art. 139° paragraph 13) of the Constitution[3], which, according to jurist VALLE RIESTRA, is in line with Article 4, paragraph 6) of the Pact of San José, which states that amnesty, pardon or commutation of the sentence may be granted in all cases. The same is repeated in Article 6 of the International Covenant on Civil and Political Rights, even applicable to death penalty cases, which demonstrates the seriousness of crimes subject to pardon[4].
We agree with the opinion of the master Eugenio Raúl ZAFFARONI in the sense that the nature of the right of pardon is not that of a judicial act or an administrative act, but it is an act of government, an act of power, which is why it cannot be a regulated activity. If this is forgotten, the right of pardon and pardon would seem to be an interference of the Executive Branch in the Judiciary[5].
We are dealing with an institution with a constitutional tradition, which has been expressly recognized in most political charters since the beginning of our republican life, except, as ROY FREYRE[6] points out in the Constitution promulgated in 1867 by Gen. Mariano Ignacio Prado, then Provisional President of the Republic, all the Constitutions that Peru has had, consign the Pardon as an attribution of Congress, or also as a power of the President of the Republic. In the first case, it was understood that since it was a dispensation of the law, it had to be granted by the organ from which said power emanated.
It should be noted at this point that the power to pardon or pardon has always been recognized in various legal systems both in our Euro continental legal tradition, as well as in the Common Law system, under various names, such as: Power to Pardon, Clemency, Indulgence, (…) being identical the legal consequence in all of them, the extinction of the execution of the penalty materialized in the suppression of the imposed penalty, under the criminal political foundation of constituting an immediate corrective against serious judicial errors, the only and last mechanism to compensate many times a situation of injustice, in the possibility of being used as a corrective, general and last, against errors and contradictions to the principles of necessity and deservedness of punishment[7].
Faced with questions as to whether this institution should survive in our legal systems, we believe that it should, not only because of the great legal tradition in our political charters, but mainly because it is the only effective and efficient mechanism against abuses of the judicial system, which we have not yet been able to get rid of, if we achieve this, amnesties, pardons, commutations and graces, will pass into the background since justice will not perpetrate outrages. Today this is a utopia. [8]
In this regard, a clear example can be found in the nearly 700 pardons granted during the government of Alberto Fujimori to those illegally convicted for the alleged crime of Terrorism, people who were convicted by the Judiciary without evidence under the emergency laws in force at that time, where the remembered Commission presided by the priest Hubert Lanssiers intervened.
Finally, it is also important to consider that this institution plays a very important role in our collapsed penitentiary system, since its granting refreshes the serious state of overcrowding in most of the prisons in our country, where the prison capacity has long since exceeded the maximum capacity limit for which they were built.
REGULATION OF THE PROCESS AND PROCEDURE.
The procedure related to Presidential Graces (Right of Mercy, Pardon and commutation of sentences) is regulated in the Regulations of the Presidential Graces Commission, approved by Ministerial Resolution N. 0162-2010-JUS[9], dated July 13, 2010, where a classification of presidential graces is made: common or ordinary and humanitarian or exceptional.
This provision details the role of the Presidential Graces Commission (a multi-sectoral collegiate body), which is in charge of issuing a technical legal report, where after analyzing and evaluating the various documentation gathered in the respective file, it will decide whether to recommend the granting or denial of the requested pardon, establishing that the criteria adopted in the case of humanitarian pardon will be the same as those established for ordinary pardon, obviously prioritizing the humanitarian nature of the decision and the specialized opinion of the competent medical professional.
We must not forget that, although it is true that there is a regulation which , in a certain way, regulates the requirements that must be fulfilled when requesting this type of pardon, we are dealing with a legal institution of a discretionary and exceptional nature, ergo, it is not subject to any limitation, since any limitation would become unconstitutional.
In this sense, Article 23 of the aforementioned regulation expressly provides that: “(…) the proposal made by the Commission does not bind the President of the Republic, nor does the unfavorable opinion or the absence of an opinion prevent its granting, in accordance with the Political Constitution of Peru”.
In the case of humanitarian pardon, the aforementioned article 31° establishes the cases in which it may be granted, as follows:
a) Those suffering from terminal illnesses.
b) Those suffering from serious non-terminal diseases, which are in an advanced, progressive, degenerative and incurable stage, and also that the prison conditions may place their life, health and integrity at serious risk.
c) Those affected by chronic, irreversible and degenerative mental disorders; and also that prison conditions may place their life, health and integrity at serious risk.
(It is worth mentioning that the previous regulation also provided for the possibility of being over 65 years of age – last part of Article 22 of Ministerial Resolution N. 193-2007-JUS).
REGARDING THE “HUMANITARIAN” CHARACTER OF THE REQUEST.
According to the CABANELLAS dictionary[10], it is defined as philanthropic, indulgent, beneficent, charitable. For DRAE Benign, charitable, beneficent. Having as its purpose to alleviate the effects caused by war or other calamities on the people who suffer them.
Consequently, this type of pardon is based on reasons of benignity, a form of indulgence towards a condemned person when a serious affectation of physical or mental health is noticed. R asons for which the State ceases the execution of the sentence imposed, in order to safeguard a higher good such as the dignity of the human person, supreme purpose of the Society and the State. This is viable only through respect for the fundamental rights of the person, including the right to life, which is the center of all values and the basic assumption of the existence of a minimum order in society.[11] It is pertinent to bring up – in the context of the right to life – the right to life, which is the center of all values and the basic assumption of the existence of a minimum order in society.
With respect to the humanitarian nature of the request, it is pertinent to mention the grounds used in the humanitarian pardon granted to the sentenced José Enrique Crousillat Pérez-Torres (in addition to being the first case in which it was illegally and arbitrarily annulled), where the corresponding Supreme Resolution[12] states that there is no need for a sentence, that the continuity of the criminal execution loses all social legal sense, and that the chronic illness and advanced age of the petitioner are proven.
Also, regarding the humanitarian nature of the presidential pardon, in STC N. 4053-2007-PHC/TC (Jaililie Case) (although the request was not based on humanitarian reasons), the Constitutional Court stated that such pardon must be granted for humanitarian reasons in those cases in which the special condition of the defendant (for example, a serious and incurable terminal illness) would render a possible sentence useless, from the point of view of special prevention (ground n. 27).
ARE PRESIDENTIAL GRACES SUBJECT TO JURISDICTIONAL CONTROL?
As we have pointed out above, the Supreme Resolution by which a Presidential Grace is granted, has the quality of res judicata, according to the express mandate of art. 139° paragraph 13) of the Political Constitution of 1993. However, in Peru the reality exceeds even the constitutional mandate which should be respected in a democratic state of law, proof of this has been the case referred to above (Crousillat) where the Head of State himself, Alan Garcia, after granting the benefit, by Supreme Resolution N. 056-2009-JUS of March 14, 2010, left it without effect, based on the great media pressure, an openly arbitrary and unconstitutional decision.
Apart from questioning these eminently political decisions, embodied in an act of government, it is interesting to note the pronouncement of the Constitutional Court in the Habeas Corpus action filed by Crousillat, following the annulment of the pardon, ordering his arrest, the Constitutional Court by means of a judgment in Case No. 03660-2010-PHC/TC. 03660-2010-PHC/TC of January 25, 2011, established that while it is true that the supreme resolution that granted the pardon is res judicata, and questioning that the subsequent revocation of what has already been granted is not constitutionally admissible, since the guarantee of res judicata and its immutability contradict this possibility. On the other hand, it was considered “contradictorily” to say the least, that even the guarantee of the immutability of the res judicata can yield to serious cases of error. It was then pointed out that (see ground n.10) the decision to pardon a convicted person generates res judicata and as such is unchallengeable and therefore irrevocable administratively, and prevents subsequent criminal prosecution for the same facts. However, this does not prevent it from being subject, exceptionally, to annulment in the courts. Naturally, such control does not deal with the appropriateness or not of the pardon, since this is a matter reserved to the discretion of the President of the Republic, but with its constitutionality.
That is to say, for the TC, despite recognizing that the Pardon is a discretionary presidential prerogative and that its effects generate res judicata, it contradictorily considers that it could be subject to jurisdictional control, only with respect to its constitutionality. H owever, in amending the text, it enters into the merits of the matter, that is to say. Nevertheless , by amending its position, it goes to the merits of the case, that is, to the reasons that justified the granting of said pardon, to support on the one hand the revocation of the pardon by the President, and on the other hand, to consider that said power was not within the competence of the head of State, since it was legally unfeasible, declaring the Habeas Corpus unfounded, and correcting the supreme resolution, it declares the Nullity of the Pardon granted.
What would this jurisdictional control that the Constitutional Court advocates with respect to presidential graces imply? Irremediably, as in the aforementioned case, entering into the analysis of the merits of a decision that has the quality of being immovable and immutable.
The TC seems to forget that the granting of the Pardon, as well as the other presidential graces, is a singular act, typical of an act of government[13], and that the subsequent questioning of its granting would be subject to a political trial through the mechanism of Constitutional Accusation, as provided in Article 99 of the Political Constitution of the State, as well as the political responsibility of the State, in this regard, we have the singular vote of Justice CALLE HAYEN, who in the JAILILIE AWAPARA case, considered that:
“whether or not the President erred in granting the right of pardon, it is not up to this instance to question such a decision . In such a case , he is left with the impeachment trial through the constitutional accusation provided for in Article 99° of the Political Constitution of Peru, as well as the responsibility of the ministers according to the provisions of Articles 120° and 128° of the aforementioned Constitution. This means that, as the Constitution has been designed, there are no limits to the exercise of the right of presidential grace”. (the underlining and bold is ours).
REGARDING THE MOTIVATION OF THE RESOLUTION GRANTING THE PARDON.
In the Judgment issued in the Jaililie Awapara case – STC N, 4053-2007-PHC/TC, dated December 18, 2007, the TC has pointed out, among others, that a direct consequence of the juridical nature of the Constitution is the jurisdictional control of the acts of all public authorities and individuals. In addition to establishing a series of formal and material limits regarding the right to a pardon, it also states, among others, that the motivation of the supreme resolution that granted the benefit must be duly motivated in order to evaluate its compatibility or not with the Political Constitution of the State.
On the other hand, they consider that although the supreme resolution that granted the right to a pardon lacks motivation, this does not invalidate the resolution adopted. And then, to point out that in future cases in which measures involving the granting of the presidential pardon are questioned, it should be taken into account the need that any supreme resolution that provides such benefit, must be motivated in order to evaluate its compatibility or not with the Political Constitution of the State.
In this regard, the postulate set forth by the authoritative doctrine seems to be more in accordance with the Constitution, since based on the premise that it is a DISCRETIONARY power without any limitation whatsoever, its validity cannot be conditioned or subject to control, if the motivation has been or is sufficient.
QUIROGA LEON[14], commenting on the right of pardon as a discretionary power of the Head of State, argues, among others, that since it is a discretionary and political power of the Executive, it makes no sense to ask for a statement of reasons. Motivation is only an essential requirement of due process in a resolution that resolves a legal controversy. (…). T herefore, as a particular administrative act, its mode of control would be through the contentious administrative action provided for in Article 148 of the Constitution. But the contentious action is only residual, that is to say, it can only have the affected party as claimant against the State that denies him/her a particular right. And this would not be the case in the right of grace. Therefore, there would be no standing or interest to act to judicially challenge the granting of the right of pardon.
It follows from the foregoing that the exercise of the right of pardon, in any of its variants, does not require any motivation, since it is a discretionary power of the President of the Republic, nor can it be subject to any type of jurisdictional control, as we have pointed out throughout this brief analysis, constituting a discretionary power of the Head of State, and any type of limitation would become unconstitutional.
1] Ruling issued by the Special Criminal Chamber – Case N. A.V 19-2001, April 7, 2009. p. 706. www.pj.gob.pe
2] Art. 118° paragraph 21) of the Political Constitution of 1993: (….) to grant pardons and commute sentences. Exercise the right of pardon (…)”
3] Art. 139° – Principles of the jurisdictional function:
The prohibition of reviving proceedings that have expired with an enforceable decision. Amnesty, pardon, final dismissal and statute of limitations produce the effects of res judicata.
4] VALLE RIESTRA, Javier. AMNESTY, PARDON AND GRACE: IRREVOCABLE AND UNREVIEWABLE RES JUDICATA. In: JuS-Constitucional 5/2008. p. 49-70.
5] ZAFARRONI, Eugenio Raúl, Tratado de Derecho Penal. Parte General. Ediar. Buenos Aires. 1993. p.40.
6] ROY FREYRE, Luis E. CAUSAS DE EXTINCIÓN DE LA ACCIÓN PENAL Y DE LA PENA. Editorial Grijley. January 1997. Lima. p. 231.
7] BUSTOS RAMIREZ, Juan. Manual de Derecho Penal General. 3rd ed. Ariel, Barcelona, 1989, p. 412.
8] Op. cit. P. 70.
9] It should be noted that Supreme Decree No. 008-2010-JUS, dated 22/06/2010, merged the commissions attached to the Ministry of Justice in charge of evaluating and proposing the granting of Presidential Graces, a legal provision that in its Complementary Provision repealed Ministerial Resolution No. 193-2007-JUS, among other norms.
10] CABANELLAS, Guillermo. Encyclopedic Dictionary of Common Law. Volume IV- F-I, 20th Edition. Ed. Heliasta SRL, Bs As. 1981. Pág. 317.
11] BERNALES BALLESTEROS, Enrique. La Constitución de 1993. Análisis comparado. ICS Editores. 2nd Edition. Lima. 1996.p.88.
12] Supreme Resolution N. 285-2009-JUS, published in the official newspaper El Peruano on December 11, 2009.
13] QUISPE CORREA, Alfredo. Pardon. Government Act. Rentería. Lima. 2005. p. 31.
14] In: JuS-Constitucional 5/2008. POINTS OF VIEW. LA NECESIDAD DE LA PERVIVENCIA DEL DERECHO DE GRACIA E INDULTO Y SUS FORMAS DE CONTROL EN EL ESTADO CONSTITUCIONAL. Editorial Grijley. May 5/2008. P. 99.
