Can Peru Congress Make Narco-Pardons Case Against Ex-President Stick?

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Peru’s Congress is opening a debate on what to do with the findings of an investigation into a pay-for-pardons scandal that implicates two-time President Alan Garcia. However, with the case against Garcia already thrown out on a technicality this spring, actually snaring the former head of state for involvement in a ring that allegedly accepted bribes from convicted drug traffickers will prove extremely difficult.

Beginning June 12, Congress will discuss nine reports issued by the seven-member “mega-commission” formed in 2011 to investigate alleged constitutional infractions and corruption that occurred during Garcia’s second term (2006-2011). The issue likely to be highest on the public agenda is the so-called “narco-pardons” scandal in which high-level officials allegedly received payment from drug traffickers in exchange for granting sentence reductions.

The scandal came into the public eye in April 2013, when an early version of the commission’s report found that during his term Garcia pardoned 400 people convicted of aggravated drug trafficking. That June, Miguel Facundo Chinguel, who headed the Garcia government’s pardons committee, was detained on accusations of taking payments from drug traffickers. Days later the Attorney General’s Office opened a preliminary investigation into Aurelio Pastor, who had headed the Justice Ministry, under which the committee was housed. Pastor had previously appeared in a video promoting the pardons system to cheering prisoners. Another member of the committee fled the country this past March. Chinguel’s case is still being processed.

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In the mega-commission’s final report (pdf), which was completed in December and received by Congress this January, investigators determined that Garcia had committed constitutional infractions — exceeding his legal powers to grant pardons — and should be investigated for the crimes of concealment and bribery. The findings and resulting recommendations were approved by the majority of the commission, in a landmark decision marking a serious effort to follow the case right to the rotten top.

However, the findings were annulled in late March this year. The Fifth Constitutional Court of Lima decided Garcia’s rights of defense had been infringed upon when the commission failed to inform him why he was being asked to appear to testify last year. Nonetheless, Congress has appealed the decision, and congressman Sergio Tejada, the head of the now-dismantled mega-commission, has claimed Congress has every right to debate the results in the meantime, partly so that “the citizenry can be aware of our findings.”

A Parallel Justice System

According to the final report, around 30 percent of the resolutions emitted by judicial authorities during the 2006-2011 period were altered by the Garcia administration through the use of pardons and commutations. In the five-year term, 5,246 commutations were issued. Of these, 3,207 were for people convicted on drug charges, and 400 of these were for aggravated drug trafficking. Meanwhile, 232 pardons — some common, some on humanitarian grounds — were issued, with around 70 of the cases related to drug trafficking.

The mega-commission called this an “unprecedented” use of this presidential authority that “went beyond the formal limits established by the Constitution.”

Under Peruvian law, the president has the power to grant pardons in limited situations, based on clauses in the 1993 Constitution and subsequent legislation. However, the Garcia administration altered existing laws regarding the objectives of the pardons committee and the use of this power, removing clauses such as “proportional and reasonable” and “in accordance with the objectives of the regulations of the penal code.” It also fused the pre-existing pardons and commutations committees into one small, five-person committee and took away requirements regarding the members’ professional qualifications, allowing for the hiring of any person via a ministerial resolution. According to the mega-commission, the new committee was made up of members of Chinguel’s inner circle, and at one point two people previously convicted of drug trafficking worked for the committee.

Garcia claimed in his testimony that the commutations were aimed partly at lowering the prison population. However, the commission noted that drug traffickers benefited most from the pardons even though they did not represent the largest prison population. Investigators also noted that the prison population grew by over 10,000 during the period.

According to the commission: “The evaluation of the information provided by the Justice Ministry allows us to support the existence of evidence that this [the pardons scheme] implied the installation of a ‘parallel justice system,’ with the objective of obstructing the fulfillment of sentences imposed in fair judgments on those convicted of illicit drug trafficking.”

Alan Garcia: the Narco-Friendly President

Garcia claimed last year that, in addition to prison overcrowding, he reduced many prisoners’ sentences for reasons of conscience, and to give minor traffickers the chance to start over. However, the evidence strongly suggests that not all of those released were mere drug couriers, or “mules.”

Among those pardoned were a man convicted of owning a maceration pit and contracting others to work producing drugs for him, two men caught with numerous precursor chemicals and 1.5 tons of coca and a man a witness later identified as a local drug boss. Many of those pardoned were foreigners, among them Colombians, Ecuadoreans and Brazilians. In more than one circumstance, various people convicted as part of the same drug trafficking structure all had their penalties reduced.

According to antinarcotics police figures obtained by La Republica last year, 85 convicted drug traffickers who had their sentences commuted or were pardoned by Garcia were later recaptured after being found to have continued trafficking drugs. In one case, a man who was convicted for trying to send 2.8 kilos of cocaine to Holland via public post had his sentence halved by Garcia in 2009. He was arrested again in 2013 after authorities caught him and six others along with 3.7 tons of liquid cocaine ready for export and 300 bricks of cocaine.

In many cases, the ex-president cut sentences even more than the amount recommended by the pardons committee. Additionally, the mega-commission found 371 instances in which convicts already in partial liberty (no longer in prison) received commutations, and cases in which prisoners received both a commutation and a pardon. Twenty-four of those who had their sentences commuted between 2008 and 2009 later made donations in various sums to the ruling party.

The commission also highlighted three cases in which Garcia issued humanitarian pardons to political figures convicted on corruption charges. While such pardons are intended to be issued only in cases in which the convict has a health condition that makes it risky to stay in prison, no such condition was proven in any of these instances. In the case of Julio Espinoza Jimenez, the former head of the country’s health insurance body, the commission also found evidence Garcia had intentionally obstructed a judicial process still underway against him.

Pardons Committee, or Pay-for-Pardons Network?

Taken alone, these cases are enough to raise eyebrows. However, the real crux of the matter lies with cases in which witnesses named officials at the head of the pardons committee as taking payments in exchange for sentence reductions.

A key witness the commission identified as 01MEGA13 claimed an organized network existed within the pardons committee — headed at that time by Chinguel — that demanded payments from prisoners seeking pardons. He said that ex-Security Minister Pastor’s assistant negotiated the sentence reduction of Slovakian national Eugen Csorgo — who had been caught with around a kilo of cocaine — in exchange for $15,000. He alleged that men from this same network negotiated with a convicted member of a group that contracted drug “mules” and with a Peruvian drug boss who had been sentenced to 25 years. The mega-commission later found a nearly $18,000 transfer to one woman’s bank account from a man thought to be a friend of Csorgo.

Various convicted drug traffickers also testified that members of the committee asked them for money. Key among these was Oscar Benitez Linares — a drug trafficker-turned-informant — who declared in late 2012 that he was asked to pay $10,000 for each year his sentence was reduced, for a total of $150,000.

According to the commission, another suspicious element of the pardons was the fact that in nine cases, people convicted for trafficking via Peru’s public postal service, SERPOST, received commutations, including one prisoner who had coordinated a mail-based trafficking scheme from prison. These pardons coincided not only with Chinguel’s time at the head of the pardons committee, but also his time as the director of SERPOST.

A Precarious Case

In his testimony, Alan Garcia insisted that while he signed off on all the cases mentioned in the commission’s report, he never met with Chinguel to discuss the commutations, and that he had no knowledge of any specific decision by Pastor to favor drug traffickers.

This leaves the case heavily reliant on witness testimony — a notoriously unreliable source that has caused numerous cases in Latin American nations to unravel. While the findings are deeply suspicious, building the paper trail necessary to catch Garcia may be another matter.

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At the moment, it seems unlikely Garcia will face any charges at all. Although Congress has insisted on addressing the mega-commission’s reports, the findings have already been nullified by the country’s judicial system, and the commission — which was dismantled following the final report — would have to be newly formed in order to reinitiate the investigative process.

This could mean Garcia, who has threatened to take legal action if Congress takes up debate and has now issued an appeal aimed at preventing the mega-commission from renewing investigations, walks away with his hands ostensibly clean. This would be a serious blow to a judicial system already compromised by alleged ties to organized crime that run right to the top. Congressman Tejada has said that any move to block debate would serve as an attempt to “shield” hundreds of guilty parties. 

The Garcia scandal means that out of Peru’s last five Presidents, dating back to 1985, only one has not been accused of corruption — and he was interim president for less than a year. Current President Ollanta Humala has himself been accused of ties to drug money, while Garcia’s predecessors Alberto Fujimori and Alejandro Toledo have been wrapped up in their own human rights and corruption scandals. Only one — Fujimori — has been convicted. No matter what the outcome of the congressional debate on the narco-pardons, this seems unlikely to change any time soon.

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