International Laws Aid Fujimori’s Extradition

Update 15 Oct 2006 – Peruvian activists delivered a 27,000-signature petition to Chilean President Bachelet on 22 August 2006 to request Fujimori’s extradition. Fujimori remains out on bail, awaiting a decision by the Chilean Supreme Court. Scroll down three-fourths of this page to see the details of the 12 charges against Fujimori.

Update 18 May 2006 – Judge Orlando Alvarez of Chile’s Supreme Court granted Fujimori’s bail of US$ 3,000. Under the bail conditions, Fujimori cannot leave Chile until a decision is rendered.

Update 24 February 2006 – The Chilean Supreme Court ruled 4-1 on Wednesday to deny Fujimori’s request to be released on bail and detained under house arrest. Jaime Larraechea, counsel for the Peruvian government, argued that Fujimori posed a flight risk and represented “a danger to the security of society.” Fujimori remains in custody at a training academy for corrections officers.

The Chilean Supreme Court justice who will decide whether to extradite former Peruvian President Alberto Fujimori said he will interview Fujimori once or twice more before rendering his decision. Fujimori faces extradition to Peru to stand trial on twelve criminal counts: ten charges of political corruption and two charges of human rights abuses. If extradited, Fujimori would face trial before the Permanent Criminal Chamber of the Peruvian Supreme Court only for those extraditable crimes approved by the Chilean government.

To contest his extradition, Fujimori must contend with the 1932 extradition treaty, domestic Chilean law, a political shift within Chile, and international treaties. The political exception of the 1932 extradition treaty and the higher burden of proof to indict under Chilean law work in Fujimori’s favor. Working against Fujimori is a recent political shift in Chile focusing attention on corruption and human rights abuses. Chilean President-elect Michelle Bachelet, who will be sworn in 11 March 2006, ran on a platform against public corruption and state-sponsored human rights abuses. International treaties against corruption and human rights abuses stand the strongest chance of requiring Chile to extradite Fujimori. In the past, Chile has been reluctant to extradite fugitives to Peru. New treaties, especially the UN Convention against Corruption, focus on holding public officials accountable for corruption and mandate greater cooperation among countries. That treaty could serve as the primary legal force to extradite Fujimori to stand trial in his native country.

Background

• Fujimori Returns to the Americas
In a bid to run in the upcoming Peruvian presidential elections to be held 9 April 2006, former Peruvian President Alberto Fujimori voluntarily returned to the Americas in November 2005. Fujimori announced the formation of his new SÃ Cumple (“Yes, he delivers”) party and his candidacy at a press conference in Tokyo in October 2005. His daughter Keiko registered the party in Peru that same month. His unannounced arrival ended five years of self-imposed exile in Japan. Fujimori served as president from 1990 to 2000. On 17 November 2000, Fujimori faxed his resignation from Tokyo, Japan after attending the Forum of Economic Cooperation Asia-Pacific in Brunei. The Peruvian government refused to accept his resignation, found him guilty of dereliction of duty, banned him from running for presidency until 2011, and sought his extradition to stand trial for corruption and human rights abuses.

• Fujimori Arrested
Chile arrested ex-President Fujimori on Monday, 7 November 2005, eleven hours after he arrived in Santiago and received a 90-day tourist visa despite an Interpol international arrest warrant, also known as a “Red Notice.” His arrival on Sunday at 2:40 p.m. by a chartered private airplane at the Arturo Merino Benitez International Airport followed a 50-minute refueling stop in Tijuana, Mexico, where officials also failed to arrest him and allowed him to take off again for Chile. Four Mexican officials were suspended later for failing to report Fujimori’s arrival to their superiors. Likewise, Peru fired its chief of Interpol, Colonel Carlos Medel, for ordering staff to shut off computer access to Interpol’s Online Global Police Communications System, known as I-24/7, during Fujimori’s flight over Peru. The system allows authorized users, such as those at airports, to access time-sensitive information about fugitives and to communicate with international law enforcement entities. If the system had been accessible, law enforcement officials in Peru might have received an early alert of Fujimori’s departure from Mexico bound for Chile. The information would have enabled Peru to request Fujimori’s immediate arrest upon arrival in Chile. Mexico, Peru and Chile, are all members of Interpol.

Absent a specific request by Peru for a provisional arrest upon arrival, authorities at the airport in Santiago could not arrest Fujimori. Interpol’s international arrest warrant is not legally valid by itself under Chilean extradition laws. Chilean law requires a two-step process before an international fugitive from justice can be arrested. First, the requesting country must submit a formal request for the fugitive’s arrest with the purpose of a later extradition. Second, a Chilean Supreme Court judge must issue an order for the arrest and detention. Until then, Fujimori could freely depart the country. During the initial hours of Fujimori’s arrival, both Maria Elena Gomez, the chief of Interpol in Chile, and Osvaldo Puccio, the Chilean Minister of Government Affairs, reiterated this constraint in public statements to the media.

After Peruvian officials held an emergency meeting on Sunday, Peruvian Ambassador Jose Antonio Meier submitted the formal request to Chile to detain Fujimori. Chilean Supreme Court Justice Orlando Alvarez issued the detention order as part of the pre-extradition process, pending a formal requisition of extradition by Peru under the 1932 treaty. Fujimori was provisionally arrested at 1:30 a.m. at the Santiago Marriott Hotel, twelve miles from the international airport. On 2 January 2006, Peru formally requested the extradition of Fujimori from Chile, pursuant to the 1932 extradition treaty. Peru filed 12 criminal charges (see below) and submitted 12 boxes of documents weighing 93 kg as evidence.

• Avoiding the International Court of Justice (ICJ)
Peru had been planning to file suit against Japan before the International Court of Justice (ICJ) at the Hague to force the extradition of Fujimori from Japan. Since 2003, Peru repeatedly sought Fujimori’s extradition from Japan, but those requests were denied for three reasons. First, the two nations share no extradition treaty. Second, Japan maintains a policy not to extradite Japanese citizens. Fujimori holds dual Peruvian-Japanese citizenship because his Japanese parents, who immigrated to Peru in 1934, applied for Japanese citizenship for their son. Third, Japan felt that Peru’s 700-page extradition request failed to provide sufficient evidence. The political and legal battle intensified last April when Peru publicly threatened to file suit against Japan before the ICJ. The following week, Peru drew sharp criticism from Japan after calling for Fujimori’s extradition, as an objective of the international application of justice, at the 11th United Nations Congress on Crime Prevention.

• Not a Case for the International Criminal Court (ICC)
Peru cannot bring suit against Fujimori for the human rights abuses in the International Criminal Court (ICC) because the crimes occurred prior to the Court’s formal creation in 2002. The ICC has jurisdiction over crimes committed after 2002 and for four types of crimes: genocide, crimes against humanity, war crimes, and aggression. Peru ratified the Rome Statute of the ICC on 10 Nov 2001.

1932 Extradition Treaty

The official surrender of Fujimori from Chile to Peru relies, in part, on their bilateral 1932 extradition treaty (in Spanish). Chile is legally obligated to extradite Fujimori if four threshold requirements are met. First, the crimes must carry a sentence of more than one year in the country from which extradition is requested (Article II). Second, under the principle of “double criminality,” the crimes, while unlawful in Peru, must also be unlawful in Chile. Third, by extension of the “double criminality” principle, the crimes must not exceed the statute of limitations under Chilean law. Fourth, under the principle of “non bis in idem,” Fujimori cannot be extradited for past or current crimes under investigation, pending trial, or sentenced (Article V).

1932 Extradition Treaty Peru-Chile

Article II
Procede la extradiciÃ³n por todas las infracciones que segun la Ley del paÃs requerido, esten penadas con un aÃ±o o mÃ¡s de prisiÃ³n, comprendidas la tentative y la complicÃdad.

Article V
No serÃ¡ procedente la extradiciÃ³n…
Cuando el delincuente sea preseguido y juzgado por el mismo hecho en el paÃs requerido

Domestic Chilean Law

While the treaty defines the thresholds, Chilean laws determine the process of extradition review and the appeals process. Those laws have been in flux. As recently as June 2005, Chile implemented judicial reforms of its criminal and extradition laws. The streamlined reforms sought to decrease the lengthy process of extradition processing from years to months.

Procedurally, the Chilean Supreme Court reviews extradition cases. One Chilean Supreme Court justice is assigned to review the case. The justice may choose to grant or deny one or more of the charges. The standard of proof is for an indictment, not a conviction. The burden of proof under Chilean law is generally higher than in Peru. If that standard of proof is met, Chile is legally obligated to extradite Fujimori, but he can be tried in Peruvian courts only for charges Chile approved during its extradition hearing. Fujimori is entitled to appeal the legality of his extradition to the Chilean Supreme Court. The decision of that appeal is final. Currently, Chilean Supreme Court Justice Orlando Alvarez is reviewing the evidence to support Fujimori’s extradition. Justice Alvarez said this month he anticipates one or two more interviews with Fujimori before rendering his decision.

International Treaties

Fujimori’s greatest political and legal challenge may be the international network of anti-corruption and human rights treaties. The anti-corruption treaties are relatively recent additions of the past decade. They explicitly outline extradition obligations of states and require the criminalization of acts of corruption as extraditable offenses, not political offenses. Thus, under at least one treaty legally binding upon Peru and Chile, Fujimori must defend himself on the basis of factual innocence, rather than seeking a political exception under the 1932 extradition treaty. Peru also seems to have strategically narrowed the potential political exception for the two human rights charges of murder. By limiting the human rights allegations to acts associated with torture, Peru strengthens the extradition case under international treaties banning torture.

• Inter-American Convention Against Corruption
The Inter-American Convention Against Corruption is a regional treaty ratified by all the member states of the Organization of American States, except Barbados. During Fujimori’s presidency, Peru ratified the treaty without reservation on 4 June 1997. Chile ratified the treaty without reservation on 27 October 1998.

The treaty declares that combating every form of corruption in public functions is essential to a representative democracy, “especially, in taking appropriate action against persons who commit acts of corruption in the performance of public functions.” The treaty calls for countries to take action both domestically and in collaboration with each other to “prevent, detect, punish and eradicate corruption in the performance of public functions.” For countries with existing extradition treaties, the acts of corruption defined in Article VI are extraditable crimes under Article XIII.

Article VI – Acts of Corruption
1. This Convention is applicable to the following acts of corruption:

a. The solicitation or acceptance, directly or indirectly, by a government official or a person who performs public functions, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage for himself or for another person or entity, in exchange for any act or omission in the performance of his public functions;

b. The offering or granting, directly or indirectly, to a government official or a person who performs public functions, of any article of monetary value, or other benefit, such as a gift, favor, promise or advantage for himself or for another person or entity, in exchange for any act or omission in the performance of his public functions;

c. Any act or omission in the discharge of his duties by a government official or a person who performs public functions for the purpose of illicitly obtaining benefits for himself or for a third party;

d. The fraudulent use or concealment of property derived from any of the acts referred to in this article; and

e. Participation as a principal, coprincipal, instigator, accomplice or accessory after the fact, or in any other manner, in the commission or attempted commission of, or in any collaboration or conspiracy to commit, any of the acts referred to in this article.

(Emphasis added)

Article XIII – Extradition
2. Each of the offenses to which this article applies shall be deemed to be included as an extraditable offense in any extradition treaty existing between or among the States Parties. The States Parties undertake to include such offenses as extraditable offenses in every extradition treaty to be concluded between or among them.

(Emphasis added)

• United Nations Convention against Corruption
The UN Convention against Corruption entered into force on 14 December 2005. Peru ratified the treaty without reservation on 16 Nov 2004. Chile is a signatory to the Convention. As a signatory, Chile cannot take actions to defeat the object and purpose of the treaty. The treaty requires countries to criminalize bribery, embezzlement of public funds, money-laundering, and fraudulent concealment of government property and monies. The treaty also provides for asset-recovery, particularly important for developing countries where public officials have looted national funds. Article 43 is particularly important for two reasons. First, countries are obligated to provide cooperation to each other to prosecute crimes of corruption. Second, for treaties requiring “dual criminality,” terminology and classification across the two countries’ legal systems cannot act as a legal loophole.

Article 43 – International Cooperation
2. In matters of international cooperation, whenever dual criminality is
considered a requirement, it shall be deemed fulfilled irrespective of whether the
laws of the requested State Party place the offence within the same category of
offence or denominate the offence by the same terminology as the requesting State
Party, if the conduct underlying the offence for which assistance is sought is a
criminal offence under the laws of both States Parties.

(Emphasis added)

The Convention also requires countries not to provide a “political offense” exception for acts of corruption. The 1932 extradition treaty allows an exception for political offenses (Article III). The Chilean court could rely on the UN Convention against Corruption to defeat an attempt by Fujimori to classify the corruption crimes as political offenses.

Article 44 – Extradition
4. Each of the offences to which this article applies shall be deemed to be
included as an extraditable offence in any extradition treaty existing between States
Parties. States Parties undertake to include such offences as extraditable offences in
every extradition treaty to be concluded between them. A State Party whose law so
permits, in case it uses this Convention as the basis for extradition, shall not
consider any of the offences established in accordance with this Convention to be a
political offence.

(Emphasis added)

• International Treaties against Torture
Torture is specifically banned under the American Convention on Human Rights (Article V), the International Covenant on Civil and Political Rights (Article VII), the Universal Declaration of Human Rights (Article V), and the UN Convention against Torture. Both human rights charges against Fujimori allege the crimes of murder were conducted with torture. The charges allege a clandestine army death squad acting under orders from higher government officials tortured and killed unarmed civilians, including a journalist, students, a professor, and an 8-year old boy. More than 50 members of the death squad currently are being tried in open court in Peru. Evidence linking Fujimori to the crimes includes Fujimori’s actions to grant amnesty and to give military promotions to members of the death squad.

Next Steps

Once Chilean Supreme Court Justice Alvarez concludes his interviews with Fujimori, he will rule on whether Fujimori could be indicted under each charge. If so, Fujimori would be extraditable on that charge. Fujimori could then appeal to the Chilean Supreme Court.

Fujimori maintains his innocence on all criminal charges. He asserts on his website that his former advisor Vladimiro Montesinos embezzled the public funds and that other funds were spent lawfully on reconstruction and the country’s expensive war on terrorism. On the human rights charges, he challenges the evidence provided by military officials as untrustworthy because they sought leniency in exchange for information.

Even if Fujimori is extradited, a conviction is not a fait accompli. His extradition means he will face trial on the charges before the Permanent Criminal Chamber of the Peruvian Supreme Court. The Permanent Criminal Chamber will be charged with conducting a fair trial. Although Fujimori has alleged a political witch hunt is the motivation behind the criminal charges, he remains a popular politician with broad support within Peru. Other States, including those of the European Parliament, support Fujimori’s extradition from Chile to Peru.

European Parliament Press Release – 19 January 2006
MEPs therefore support the extradition of Mr. Fujimori to Peru, which has already been formally requested, so as to ensure that Mr. Fujimori appears in court to face the charges against him. Parliament expresses total confidence in the Chilean and Peruvian judicial systems, and trusts that this extradition will take place on the basis of full respect for the procedures and applicable legislation, and that Mr. Fujimori’s trial will be conducted according to international standards.

The 12 Criminal Charges

The description of the twelve charges given below is compiled from online public resources, primarily from the Spanish website fujimoriextraditable.org.pe.

Corruption

Corruption Criminal Case 1	Abuse of Power In 2000, Fujimori abused his constitutional powers when he arranged for the armed forces and the police to act under the direction of a false public prosecutor to seize documents and videos incriminating his adviser Vladimiro Montesinos. The seized materials were transferred in official vehicles and given to Fujimori. He manipulated the contents before the delivery of the materials to the judiciary. Extradition Number 01-05 Judicial File: 13-2003

Corruption Criminal Case 2	Embezzlement of Public Assets Fujimori is accused of using public funds for his own benefit when he arranged to cancel the debt owed to the National Supervision of Tributary Administration (SUNAT) by Borobio & Asociados. SUNAT is a public agency and is responsible for taxes on imports, commercial services, and warehouses. Borobio & Asociados was owned by Daniel Borobio Guede, the publicity manager for Fujimori’s re-election campaign. Extradition Number 03-05 Judicial File: 09-2004

Corruption Criminal Case 3	Illegal Phone Tapping Fujimori is accused of using public funds and national resources to carry out the interception and listening of telephone conversations of politicians, journalists and opposition leaders to his regime from 28 July 1990 to 17 November 2000. Extradition Number 05-05 Judicial File: 14-2003

Corruption Criminal Case 4	Illicit Association to Commit a Crime Fujimori is accused of using public funds to finance a website designed to discredit political opponents. The website, named “Association Pro Defense of the Truth” (APRODEV), was managed from October 1998 to September 2000 by Mr. Héctor Faisal. He was paid US$6,000 monthly and an additional US$30,000 one-time sum from national State Treasury funds. Extradition Number 06-05 Judicial File: 08-2004

Corruption Criminal Case 5	Illicit Association to Commit a Crime (a) Fujimori is accused of using public funds to finance the acquisition of tractors, machinery, and agricultural equipment from the People’s Republic of China for his personal use. Fujimori failed to use lawful means in the distribution of the tractors, and 231 tractors disappeared. (b) Fujimori is accused of using public funds to obtain the support and control of the media during his re-election campaign. He paid US$2 million to the Cable Channel of the News (CCN- Channel 10) and US$1.75 million to the newspaper Daily Express. Extradition Number 07-05 Judicial File: 33-2003

Corruption Criminal Case 6	Illicit Association to Commit a Crime / Fraud Fujimori is accused of using public funds in an irregular series of legal contracts worth US$121 million with six Chinese corporations. Extradition Number 09-05 Judicial File: 11-2003

Corruption Criminal Case 7	Illicit Association to Commit a Crime / Fraud Fujimori is accused of participating in the illegal transfer of US$15 million, in cash, to his adviser Vladimiro Montesinos Towers. Fujimori issued Decree of Urgency Nº 081-2000 as a budgetary extension to resist potential invasions from Colombian rebels. This budget was paid, upon order from the President, to Towers. Extradition Number 11-05 Judicial File: 23-2001

Corruption Criminal Case 8	Illicit Association to Commit a Crime / Corruption and Bribery Fujimori is accused of using public funds from the National Intelligence Service to purchase the loyalty of congressional representatives and to obtain a parliamentary majority. Extradition Number 12-05 Judicial File: 05-2002

Corruption Criminal Case 9	Illicit Association to Commit a Crime / Embezzlement Fujimori is accused of using public funds from the National Intelligence Service in the creation and operation of a “contingency fund” for his personal benefit. Along with his adviser Vladimiro Montesinos Towers, Fujimori benefited from the privatizations of public companies, took illicit commissions for the Armed forces, and falsified documents. Extradition Number 13-05 Judicial File: 09-2003

Corruption Criminal Case 10	Illicit Association to Commit a Crime / Embezzlement Fujimori is accused of using public funds for his personal benefit and to finance the political campaigns of the government party. Extradition Number 17-05 Judicial File: 27-2003

Human Rights

Human Rights Criminal Case 11	Kidnapping and Torture Fujimori knew, ordered, and allowed the kidnapping and torture of political opponents by the Army’s intelligence service (SIE) at a facility where Fujimori resided in 1992. The following specific kidnappings are referenced: Susana Higushi Miyagawa – former First Lady Leonor La Rosa Bustamante – former intelligence agent Gustavo Andrés Gorriti Ellenbogen – journalist Hans Hilmmler Ibarra Portilla – former intelligence agent Samuel Edward Dyer Ampudia – businessman Extradition Number 14-05 Judicial File: 45-2003

Human Rights Criminal Case 12	First-degree Murder (homicidio calificado), Forced Disappearance, Aggravated Kidnapping and Torture Fujimori authorized a military detachment, known as the “Grupo Colina”, of the Army’s intelligence service (SIE) to conduct the massacres of the “High Districts” and “La Cantuta.” “High Districts Case” On 3 November 1991, members of “The Hill” murdered 15 people, including an 8-year-old boy, in the High Districts. Four other people were seriously injured. “La Cantuta Case” On 18 July 1992, members of “The Hill” abducted nine students and a professor from the campus of the National University of La Cantuta. The victims were tortured, murdered, incinerated, and buried in a clandestine grave. Extradition Number 15-05 Judicial File: 19-2001

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