June 12, 2013
Source: Open Society Initiative
This article was first published on June 5, 2013 on the website of the Washington Office on Latin America.
By Jo-Marie Burt and Geoff Thale
On May 10, 2013, after 30 years of state-sanctioned impunity, the victims of army violence in Guatemala’s 36-year civil war saw a glimpse of relief when former de facto president General Jose Efraín Ríos Montt was convicted on charges of genocide and crimes against humanity. Judge Jazmín Barrios, who presided over the case, revoked Ríos Montt’s house arrest and ordered him immediately to prison to serve out his 80-year sentence.
But impunity has a way of fighting back in Guatemala. Just ten days after the historic ruling, Guatemala’s Constitutional Court vacated the verdict against Ríos Montt and annulled all the legal proceedings that had taken place after April 19, even as the trial was close to wrapping up. In theory, this means that all prosecution testimony from the trial start date of March 19 until April 19 remains valid, and only a few defense witnesses need to be heard before a new round of closing arguments commence and judges weigh the evidence and announce a new decision.
But the Constitutional Court decision, in practice, is likely to require a new trial. The judges of the trial court that presided over the case had little option but to recuse themselves—which they did on May 27—since they had already emitted an opinion in the case and would not be seen as impartial. Once a new court is constituted, it is likely that it will seek to start the trial from the beginning again. This would be a gross miscarriage of justice for the victims, since it would mean that the nearly 100 victims who testified—at great personal risk—would be called to testify again.
While President Otto Pérez Molina has claimed publicly that the genocide trial is a demonstration that rule of law in Guatemala is solid and judicial independence secure, nothing could be further from the truth. The partial annulment of the genocide trial is not the result of a legitimate due process violation, but of manipulations of the legal system designed to overturn the guilty verdict and deny justice to the victims of state-sponsored violence in Guatemala.
Obstructionism as a Legal Strategy
The chief legal strategy of Ríos Montt’s defense team was not to engage in a substantive debate about the past, but rather to stall the proceedings and prevent them from reaching a conclusion. The prosecution meticulously built its case throughout 20 or so hearings, during which the court heard the testimony of nearly 100 witnesses and survivors, as well as more than two dozen expert witnesses. However, the defense’s tactics and efforts to prevent the trial from advancing and reaching a conclusion were evident from the very start.
On March 19, the first day of the trial, the judges rejected several motions presented by the defense aimed at delaying the start of the trial, and the court declared itself in session. On the same day, Ríos Montt’s long-standing legal team withdrew from the case, and Francisco García Gudiel was brought in to defend the general. García Gudiel is known for his obstructionist tactics, and he lived up to his reputation that day.
He presented several legal motions that were rejected by the trial court, including an attempt to have two of the three trial court judges recused and forced out of the case, claiming to have enmity with presiding judge Barrios and amity with Judge Pedro Xitumul. Guatemalan law prohibits a lawyer from taking on a case if he or she has a conflict of interest with any of the assigned judges. In response to the antagonism on the part of García Gudiel, the trial court removed him from the case and ordered the lawyers of Ríos Montt’s co-defendant to assume Ríos Montt’s legal defense for the remainder of the first day.
The trial court informed Ríos Montt that he could invite any of his prior lawyers, or any other lawyer, to represent him that day or the subsequent days, but that if he did not, he would be given a court-appointed public defender. The next day and over the course of that week, Ríos Montt’s prior lawyers returned to the courtroom to represent him. Ríos Montt’s lawyers filed a number of legal challenges resulting from this series of events alleging that the general’s right to defense and to due process had been violated. These challenges became the pretext for the Constitutional Court’s May 20 decision to wind back the clock on the trial to April 19.
We are deeply skeptical that Ríos Montt’s right to defense was actually in jeopardy. Many legal observers say that Judge Barrios was fully within her rights to have García Gudiel removed given his intransigence and openly defiant behavior in the courtroom —behavior that in Guatemala is rarely sanctioned—as well as his assertion that he had a conflict with two of the three judges on the panel. Further, Ríos Montt was represented by the attorney for his co-defendant for only about half a day before his legal team returned.
Moreover, the trial court later reincorporated García Gudiel into Ríos Montt’s legal team, threw out the witness testimony heard from that half day, and re-read the indictment to Ríos Montt, as a result of a decision from an appeals court and the Constitutional Court during the course of the trial compelling the court to do so. The trial court even heard again the arguments from García Gudiel that the two judges should be disqualified, and rejected these arguments, continuing the end of the trial with the same three-judge panel and García Gudiel as Ríos Montt’s lawyer.
In the end, the May 20 Constitutional Court decision was not directly about the issue of this alleged due process violation, but about a related procedural issue. Should the trial court have suspended hearings for a full appeal of this motion to disqualify the judges before continuing to the conclusion of the trial? The appeals court, before the verdict was issued, said that it was satisfied with the trial court’s remedy. The Constitutional Court, on May 20, said that the appeals court was wrong and a full review was required.
It is our view that Ríos Montt’s defense team deliberately put his defense in jeopardy in an attempt to delay and sabotage the proceedings.Ríos Montt’s defense team was engaging in what Guatemalans refer to as litigio malicioso, roughly translated as unethical legal tactics. Ríos Montt’s defense team has misused legal motions to derail the legal proceedings, and the appeals and constitutional courts have permitted it. The efforts to recuse the judges at the start of the trial represents one example; the decision of the defense lawyers to abandon the courtroom midway through the trial, against the explicit orders of the judge, is another.
Such behavior is not unprecedented in Guatemala; the frivolous and improper use of legal motions and the amparo system is well-documented. In fact, the Inter-American Court of Human Rights criticized Guatemala for allowing such unethical behavior in its ruling in the Myrna Mack case. Indeed, Ríos Montt’s defense lawyers openly stated that they intended to present as many legal motions as necessary to delay the proceedings and prevent the trial court from emitting a verdict. When they failed to do this, after the verdict was emitted on May 10, they sought to have it overturned. That the justice system permitted this is symptomatic of grave underlying problems in Guatemala’s rule of law.
Dissenting Voices in the Constitutional Court
The Constitutional Court’s May 20 ruling has been called into question, not least of all by the two judges who wrote dissenting opinions in the 3-2 decision. Both of the dissenting judges—Mauro Chacón and Gloria Porras— affirmed that the appropriate mechanism to remedy any alleged violation subsequent to the verdict is an appeal through normal legal channels rather than through the Constitutional Court. (This view is also held former Constitutional Court president and former Ombudsman Jorge Mario García Laguardia.) Additionally, Judge Chacón affirmed that the decision to overturn the verdict as well as the latter phase of the trial was a disproportionate response to the violation asserted by court, while Judge Porras criticized the decision because it left the victims’ constitutional right of access to justice unprotected. Judge Porras also observed that the majority opinion misrepresents several key facts in the case.
It would appear that other forces were at play in the May 20 decision to partially annul the Ríos Montt trial and vacate the verdict. As the proceedings advanced, a number of paid advertisements circulated claiming that the genocide charges were fabricated, accusing the different players involved of being guerrillas or their stooges, and preaching doom should Ríos Montt be convicted.
The day after the verdict, the Coordinating Committee of Agricultural, Commercial, Industrial, and Financial Associations (Comité Coordinador de Asociaciones Agrícolas, Comerciales, Industriales y Financieras, CACIF), the influential Guatemalan business association, asserted that grave violations had occurred, and charged the trial court with being “overly ideological” and subjected to pressure and interference by unnamed international organizations. CACIF also called on the Constitutional Court to “rectify” the “anomalies produced in the proceedings.” A CACIF publicity campaign in the days between the verdict and its May 20 rejection by the Constitutional Court asserted that the genocide verdict would undermine investor confidence because it equated Guatemala with Nazi Germany and the Rwandan genocide.
The ability of de facto powers to shape legal outcomes to their liking points to an issue that transcends the genocide case: the ability of influential actors to manipulate the judicial system through amparos (or an abundance of constitutional challenges, some legitimate, many not) and other legal motions that claim to be based on due process concerns but that in effect are deployed to prevent substantive justice from being done. We see this not just in the case of General Ríos Montt, but in many others as well. Former President Portillo fought extradition on money laundering charges using exactly the same kind of tactics.
More is at Stake than the Genocide Case
The genocide case against Ríos Montt and his former intelligence chief Mauricio Rodríguez Sanchez was focused on the murder of 1,771 Maya Ixil during the internal armed conflict. Aside from this case, dozens of other cases await their day in court. The vicissitudes of the Ríos Montt trial reveal a deeply politicized legal system and one whose autonomy is seriously in doubt. Is Guatemala’s legal system capable of addressing these crimes?
In the past two years, there has been slow but real progress in bringing some human rights cases to trial. Important changes in the legal system, many promoted by the International Commission against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG), have helped bring this about, along with the work of a courageous attorney general, Claudia Paz y Paz Bailey, and members of her staff, as well as judges, witnesses, and human rights groups that have pushed to keep these issues on the agenda and to move ahead with prosecutions. General Ríos Montt’s trial is in some ways a litmus test of whether the judicial system is capable of providing justice, particularly in sensitive cases.
The Constitutional Court’s May 20 ruling raises serious questions about the rule of law in Guatemala. While it is of utmost importance that due process rights be upheld in any court of law, it is equally important that the parties to a legal proceeding not be allowed to manipulate the system to undermine justice. It is not at all clear that the Constitutional Court had the authority to act as it did, or that its decision is legally sound. Time will tell what this implies for the genocide case, and how—and whether— it will proceed from here. The uncertainty that has been generated as a result of the May 20 ruling raises serious issues about judicial independence and juridical security in Guatemala.
Indeed, this is an important issue not just for this case, and not just for human rights cases. Whether the Guatemalan legal system can function impartially is of great importance for criminal prosecutions in general. This is especially significant given Guatemala’s problems with gang violence, drug trafficking, and clandestine criminal groups that continue to exercise political influence, as well as white-collar crime such as corruption, money-laundering, and tax evasion.
It is important to ordinary Guatemalans who want to feel that crime is being brought under control. It is important to ensuring that the political system functions without the hidden influence of criminals and their allies. It is important to the international community that supports the rule of law. And it should be important to the Guatemalan business community that wants to depend on an impartial system of justice to resolve disputes, and to those who seek international investment in a Guatemala where justice is reliable.
Ríos Montt’s defense lawyers seem to have achieved—at least temporarily—their chief objective: to use the legal system to defeat justice. The question is whether the key actors within state and civil society can turn this around so that substantive justice can prevail. In order for this to happen in the genocide case—as well as other human rights cases—international human rights groups and the international community more broadly need to continue to work closely with and support our colleagues to press forward on human rights cases and to strengthen the rule of law in Guatemala.
The authors participated as international observers to the Ríos Montt trial.
Additionally, WOLA Senior Fellow Jo-Marie Burt led a delegation of Latin American judges and lawyers to observe the trial, and she was one of the experts who participated in the Open Society Justice Initiative (OSJI) project to observe the genocide trial.
Photo by Ben Parker.
García Laguardia told elPeriódico that in his view, the Constitutional Court overstepped its bounds when it declared the partial annulment of the trial not only because e the alleged due process violation had been resolved by the trial court, but also because the Constitutional Court only has the authority to resolve constitutional issues..
One paid advertisement featuring the signatures of respected politicians such as Eduardo Stein asserted that the genocide trial represented an “end of the peace accords” and would open a new phase of violence in Guatemala. Others were more openly intimidating, including one titled “The Faces of Infamy” that featured a wide range of actors, including the Attorney General, the judges in the case, human rights lawyers, international activists, and even U.S. Ambassador Arnold Chacón.