I arrived this past Monday to Guatemala City with a team of students from the University of Connecticut (law students and an undergraduate) to serve as a monitor with the Open Society Institute’s monitoring project of the criminal trials again Jose Efrain Rios Montt (who ruled Guatemala during 1982 and 1983), and Jose Mauricio Rodriguez Sanchez (Montt’s chief of military intelligence). The project includes an up-to-date blog.
This is the first time a former head of state has been tried in a domestic court for genocide, making it a historical and important precedent in the fight against impunity. The prosecution alleges that Rios Montt and Rodriguez Sanchez were responsible for the deaths of 1,771 Mayan Ixils, the displacement of 29,000 and their subjection to sub-human conditions, their torture, and cruel and inhuman treatment, and the rape and sexual abuse of women, all in violation of Guatemalan and international law.
The defendants are also being charged for Crimes against Humanity, although the Guatemalan Code refers to this charge “crimes against the duties of humanity” (delitos contra los deberes de humanidad) and requires a nexus to a conflict.
The trial opened on March 20th and has included the participation of dozens of fact witnesses and experts offering horrifying detail of the brutal massacres that killed children, women and men, and elderly people in rural villages. The proceedings have cruised along at neck-breaking speed despite the Semana Santa (“Holy Week”) holiday in April and the trial was near ready to conclude last week when suddenly a legal challenge brought it to a full halt.
In summary, Judge Carol Patricia Flores, who presided over the pre-trial stage of the proceedings (which determines whether there is sufficient evidence to proceed to oral hearings) was recused in 2011 after the defense challenged her objectivity due to a conflict of interest. The prosecution filed a procedural challenge of amparo (similar to an injunction) which only last week was confirmed by the Constitutional Court.
In the meantime, while these legal actions were pending, Judge Miguel Angel Galvez (the other judge sitting on the special Tribunal de Alto Riesgo (“High Risk Court”)) charged the defendants in January 2013, and ordered the public hearings to proceed. Last week when the high court reinstated Judge Flores, she unexpectedly declared the public hearings null and void, ordering that the proceedings had to return to the pre-trial stage.
The Attorney General Claudia Paz y Paz declared the ruling “illegal” and vowed to challenge the decision. The civil parties (querrellante adhesivos) representing the various victims also began to file legal actions of amparo to challenge the decision. Over the weekend, the defense, in turn, filed its own challenges on various procedural grounds.
The result is a legal entanglement that has slowed down the justice process. It is dizzying trying to keep track of the various challenges, and legal experts here describe how the use of amparo– originally conceived as a legal mechanism to protect individual rights against governmental abuse of power–have been converted into a legal strategy to delay justice. Yesterday, in a new round of hearings on outstanding amparos brought by the defense, the civil parties contended that there is an “abuse” of this legal procedure.
One risk of this legal strategy to halt the legal proceedings (and the suspension of the oral hearings) is that the Guatemalan Penal Code dictates that if a trial is suspended for ten days it then is automatically nullified and must begin again. The issue is that there would then be no judge to hear a new proceeding, given that Judges Flores and Galvez are the only two judges sitting on the High Risk Court have already heard the case.
Things stand at a critical crossroad where the road forks towards justice or impunity. Stay tuned to for new developments in the coming days.
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