The Prosecutor’s Office investigates Alberto Fujimori’s life pension: These will be possible crimes and penalties | Policy

The proceedings initiated were for an alleged crime against the public administration and set a 60-day deadline to collect statements and documents. Among other things, they requested Congress to send to the Public Ministry all administrative documents and reports supporting the granting of the above benefits.

It is recalled that on July 10, the Human Resources Department of Parliament declared the payment of a pension to the former President “appropriate” and concluded that he met the requirements of Law No. 26519 related to the pensions of former presidents.

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“Initiate preliminary proceedings for a period of sixty days (60 days) at the tax headquarters against those suspected of criminal acts that endanger the public administration and harm the state.”

Public Ministry.

The head of the aforementioned congressional department, official Haidy Figueroa Valdez, supported the decision, insisting that Fujimori, who serves as the constitutional president of the republic, has not been constitutionally charged and that an acquittal after constitutional charges would affect his rights. Presumption of innocence.

In addition, former official José Rubio Preciado will intervene, issue a legal opinion and then leave the legislature.

Mr Fujimori has already received his first pension under the administration of Eduardo Salvana, the president of Congress.

According to the Congressional Transparency Portal, he made a payment of S/10,920 in his capacity as “former constitutional president”.

Currently, Fujimori owes the state Sh57 million for all the judgments, which equate to five sentences imposed by the judiciary for various crimes including aggravated homicide, corruption, fraudulent embezzlement and usurpation of office.

The Anti-Corruption Prosecutor’s Office has requested a report from the Congress of the Republic to determine whether it requires the withholding of a certain percentage of pensions to pay for civil damages owed.

In December 2017, former President Pedro Pablo Kuczynski granted him a humanitarian pardon, which was rescinded and then restored by the Constitutional Court in December 2023.

The president of the National Assembly, Eduardo Salhuana, confirmed that he had received a request from the Ministry of Public Affairs to send information about Fujimori’s pension. In this regard, he believed that the Attorney General acted ex officio.

“We respect the decision of the public ministry. We will provide all the facilities and the request for information has arrived. I have arranged to respond as soon as possible and we are interested in clarifying this.”

Eduardo Salvana, President of the National Assembly.

Regarding the investigation within Parliament, Salhuana Cavides said they had received two technical opinions on the case; they will make a decision within the next 60 days.

This newspaper sought a version from attorney Elio Riera, but he had not responded by the time this report was closed.

The offences investigated carry a maximum penalty of eight years in prison

In a conversation with El Comercio, former anti-corruption lawyer Antonio Maldonado noted that the intervention of the Public Ministry in this case was appropriate, given that the actions within Congress presumed the existence of a crime against the public administration.

“We are faced with an incompatible negotiation and a criminal abuse of power. In this light, the intervention of the Public Ministry seems to me to be correct. It is reasonable and necessary for a constitutional body with the autonomy of criminal prosecution to act in the face of facts that are not neutral and, on the contrary, have the characteristics of a criminal suspect.”

Antonio Maldonado, Former anti-corruption lawyer.

Maldonado noted that the facts revealed by the media regarding the pensions of former presidents reveal forms of opacity and suspicions of improper and murky negotiations that reveal agreements reached between people or actors who do not appear in public.

Instead, he said Congress presented the facts as an automatic bureaucratic act, applying administrative rules and interpreting them according to administrative standards, and that the technical body “innocently” made the decision to grant Fujimori a pension.

However, according to news reports, there may be private negotiations and invisible clues involved, which contradict the administrative principles of appearance and due motivation.

“We are not facing a neutral fact, this is an illegal act, both in criminal law and administrative law, both administrative and criminal, and also civil, because if they pay this pension, this pension will have to be seized because of the existence of hereditary property. To the detriment of the state,” said.

Maldonado Paredes therefore points out that there are signs of irregularities, as the conclusions drawn in the field of human resources are not based on logical reasoning, since the norm describes two assumptions that clearly do not apply to Fujimori.

“One of them, Fujimori, who had been the constitutional president, turned out to have ceased to be president of the republic on April 5, 1992, by his own decision, established a dictatorship, and was removed by Congress,” he recalled.

But he also stressed that Fujimori had been convicted of very serious crimes that affected human rights; as well as other crimes to which he had pleaded guilty.

“Thus, we are faced with a limited but still effective law that should have led the Ministry of Human Resources to take the administrative process to its logical conclusion and deny the pension request, but it was imposed. And its prevalence was not due to automatic operation; but complaints in the media indicate malicious interference,” he commented.

Daniel Jurado, a lawyer specializing in criminal matters, told the newspaper that to start a tax investigation, it is first necessary to analyze the norms, since former President Fujimori requested that he be granted a lifetime pension under the Tax Code. The protection of Law No. 26519, Article 2 of which states that the pension rights of a former president against whom Congress has filed a constitutional complaint will be suspended unless a court decision declares him not guilty.

“Why is terminology important? Because everything is connected to criminal law. When a person is criminally prosecuted, three things are determined at sentencing: whether the person is criminally responsible for the crime, which means guilty; and whether the person is innocent or guilty. In the sentence, you have to say whether you are innocent or guilty. If you are found guilty, the judge has to sentence you, which is the consequence of finding you guilty,” he explained.

He pointed out that here we also need to distinguish between criminal responsibility and punishment, that is, sanctions for criminal behavior.

Therefore, Jurado Palma said that in the case of the humanitarian pardon granted to former President Fujimori, the sentence imposed on him was lifted due to the pardon, in accordance with Article 85, paragraph 1, of the Criminal Code. However, he added that Article 89 of the Criminal Code regulates the effects of pardon and amnesty, as they are two different things.

He said an amnesty legally eliminates the punishable conduct involved in the crime for which the person was convicted; “that is, it declares that the conduct for which he was convicted does not constitute a crime.” However, according to article 89 of the Criminal Code, an amnesty “has the sole effect of annulling the sentence imposed.”

“What that means is that it does not eliminate criminal liability, it does not eliminate civil liability, the only thing it eliminates is the prison sentence, the years you have to serve, but that’s it, it does not say that the defendant will be acquitted,” he said.

For this reason, the expert believes that “after the pardon, the punishment is eliminated, but the criminal responsibility is eliminated.” In other words, the verdict declaring former President Fujimori guilty “still has value” because it is still a declaration of guilt rather than innocence.

He argued that the entire legal analysis was a priori because Law No. 26519, in order to grant pension benefits, required his acquittal, so if that had happened, there would have been no problem in granting the pension, but on the contrary, the former president was found guilty.

In this context, he questioned the legal report issued by Congress, which declared that the payment of a life pension was appropriate, arguing that demanding an acquittal could violate the principle of presumption of innocence; moreover, because it was untrue that there were no constitutional charges against the former president.

“However, on April 2, 2001, constitutional charge No. 130 was filed in the case of La Cantuta, Barrios Alto and Mariela Barreto filed by former Congresswoman Ana Elena Townsend; it was on the merits of this constitutional charge that Alberto Fujimori was subsequently convicted,” he commented.

Jurado Palma therefore concluded that in the case of the former president, constitutional charges had been filed in 2001; only now had he been acquitted. Therefore, article 2 of Law 26519 was valid and therefore technically the pension should not be granted.

To this end, he said that given that everything that happened in Congress violated normative requirements, it is “very likely” necessary to launch a preliminary investigation into those responsible.

“During the course of the investigation, we will understand who made the favourable opinion and issued the favourable report, and the extent of the analysis they conducted on these bans and whether it was indeed appropriate to grant this benefit,” he said.

He pointed out that illegal acts such as authorizing the payment of bonuses and increasing remuneration without authorization should be investigated in accordance with Article 383 of the Criminal Code, namely the crime of improper payment, or the crime of intentional embezzlement for the benefit of a third party as stipulated in Article 387 of the Criminal Procedure Code.

“So, in a sense, these two crimes will most likely constitute this complaint, because the person who has to prove it will be the prosecutor’s office (…) I think the most appropriate one is (Article 387 of the Criminal Code), intentional misappropriation of another’s property, which is punishable by imprisonment for a term of not less than four years but not more than eight years.”

Daniel Jurado Palma, Criminal lawyer.