Guatemalan Constitutional Court Issues Resolutions Concerning Some Pending Legal Questions; Some Key Issues Remain Outstanding

On Tuesday, the Constitutional Court issued decisions on some, but not all, of the pending legal challenges which have left the Guatemalan genocide trial at a temporary standstill.

The Constitutional Court decisions only added to the suspense created last week when, on April 18, Judge Patricia Flores abruptly annulled the oral phase of the trial even though more than one hundred witnesses and experts had testified and a final verdict was believed imminent. In her order, Judge Flores instructed that the process revert back to its November 23, 2011 pre-trial status, before her earlier recusal from the case. The trial court immediately rejected this annulment order as illegal, and suspended the trial pending constitutional review, which the trial court – and the public – still await.

Judge Flores asserted that her decision to annul the oral proceedings was pursuant to the April 3, 2013 Constitutional Court order requiring that certain defense witnesses be admitted, and a Supreme Court resolution rejecting her earlier (November 23, 2011) recusal.

Judge Flores had been ordered recused while she was presiding over the evidentiary phase of the trial, in response to a defense challenge. CALDH, one of the civil parties, challenged the recusal in December 2011, and the Supreme Court ruled in favor of CALDH, but a final decision by the Constitutional Court was only issued in late 2012; and it took until April 2013 for the notification of the illegality of the prior recusal order to reach Judge Flores, and until April 17, 2013 for Judge Flores to notify the parties.

Legal challenges followed immediately after the annulment order. Among others, the civil parties – CALDH, Asociación para la Justicia y Reconciliación (AJR), and Asociación Familiares de Detenidos Desaparecidos de Guatemala (FAMDEGUA) – filed a complaint (ocurso en queja) challenging Judge Flores’ annulment decision.  Defense attorneys also filed challenges, in addition to challenges that lay pending before the Constitutional Court even before the annulment order.

Thus, the Constitutional Court reported on April 22 that it had 12 legal challenges related to the trial under review. On Tuesday, the Court issued a decision in six of the challenges, leaving the remaining legal challenges to be decided later, likely this week or Monday.

The Constitutional Court held a news conference in the afternoon. Prior to the news conference and any official announcement from the Constitutional Court, news outlets incorrectly declared that the Court had annulled the trial, leading to widespread speculation. Journalists rushed to the Court expecting a press conference to start at 4pm, as publicized, only to learn that the Court had held a news conference an hour earlier.

Crowding the entrance of the office of the General Secretary of the Court, journalists eagerly grabbed copies of the Court’s resolutions and insisted on the opportunity to ask questions, until Martin Guzman, the General Secretary of the Court, convened a second press conference.

The Constitutional Court’s actions on Tuesday were significant but left some key questions outstanding.

First, the Constitutional Court rejected on procedural grounds the CALDH complaint (ocurso en queja) which sought to reverse Judge Flores’ annulment order. The Court expressly did not reach the merits of the issue. Instead, it asserted that the complaint mechanism used by CALDH (ocurso en queja) was improperly used in this instance.

In the press conference, Guzman explained that the Court rejected CALDH’s challenge as improperly filed leaving, for the time being, as legally binding (vigente) Judge Flores’ ruling to annul the oral proceedings. Guzman implied that CALDH could amend and re-file their complaint, although an acceptable procedure remained unclear.

Second, the Constitutional Court resolved that the trial court must transfer the case file to Judge Flores within 2 hours of being notified in order for Judge Flores to issue an order consistent with the Constitutional Court’s April 3 resolution concerning the admissibility of defense evidence. The Constitutional Court recognized Judge Flores as the “legally competent” authority and ordered that Judge Flores issue an order within 48 hours.

On February 4, Judge Galvez, overseeing part of the evidentiary phase of the trial, had rejected as inadmissible some of the defense’s proposed experts, witnesses, reports and documents, prompting an amparo from the defense challenging this decision. The trial court, on March 19, the first day of the trial, provisionally accepted into evidence all of the proposed defense evidence, despite the more limited ruling by Judge
Galvez, in recognition of the pending legal challenge on this issue.

On April 3, the Constitutional Court overturned some of Judge Galvez’ decisions on the admissibility of defense evidence, but nonetheless identified that the defense cannot propose evidence at a late stage in a manner that would delay the start of the process, or require a reversion to earlier stages, a “situation that would be illegal.”

Subsequent to the Constitutional Court’s April 3 decision, the trial court asserted that, in its admission of all of the defense evidence, it had fully complied with the Constitutional Court’s April 3 ruling. In its ruling on Tuesday, the Constitutional Court recognized that the trial court must nonetheless transfer the case file to Judge Flores in order to comply fully with its order.

According to press accounts, Judge Yassmin Barrios, the President of the trial court, complied with the order by personally transferring the case file to Judge Flores soon after the Constitutional Court’s publication of its resolution.

In a separate but related decision, the Constitutional Court rejected a request by the defense to expand (ampliar) its April 3 decision and annul all proceedings subsequent to Judge Galvez’ February 4 decision declaring some evidence inadmissible. The Constitutional Court instead re-affirmed its April 3 decision.

Third, the Constitutional Court found that the trial court violated Rios Montt’s right to a defense (violation of right to be represented by a trusted attorney) in its expulsion of one of his attorneys, Francisco Garcia Gudiel, on the first day of the trial. The Court ruled that the trial court should “restore” those rights within 48 hours or be subject to legal reprimand (apercibimiento). The decision is silent as to how this issue should be resolved.

Relatedly, the Court ruled in favor of attorneys Moises Galindo and Cesar Calderon, attorneys for co-accused Rodriguez Sanchez, who had filed an amparo contesting their being forced to defend Rios Montt subsequent to Garcia Gudiel’s expulsion. They had alleged, among other things, a violation of their right to the free exercise of their profession. The Court granted their request for a suspension of the judicial order compelling their representation. The significance of this is unclear as Rios Montt has reinstated his initial defense team and Galindo and Calderon are no longer representing him.

Rios Montt introduced Garcia Gudiel into his defense team on the first day of the public hearing and the tribunal expelled him soon after, ordering Galindo to represent Rios Montt absent Rios Montt identifying another attorney of his own choosing. After Garcia Gudiel’s dismissal, the defense filed a series of legal challenges which eventually reached the Constitutional Court.

Siglo 21 reported that Garcia Gudiel must be readmitted as counsel to Rios Montt, though this is not clear from the resolutions.

The Constitutional Court separately rejected an appeal by Rios Montt’s attorney that the advancement of the start date of the trial, to March 19, constituted a violation of his rights.

The Constitutional Court’s decisions leave unresolved whether the Court would permit the rollback of the trial to the beginning of the oral hearing (March 19, 2013), or even earlier, to November 2011, prior to the order for Judge Flores’ recusal, as asserted by Judge Flores in her April 18 oral decision to annul the oral phase of the trial and revert the proceedings.

The Constitutional Court judgments also leave unanswered questions concerning the significance of Judge Flores’ renewed engagement in the case, her prior annulment order, and the remedies granted by the Constitutional Court in response to legal challenges concerning the rights of the defense.

On Wednesday, CALDH is scheduled to hold a 10 am press conference. The Attorney General’s office is also scheduled to make a public announcement.

Against the backdrop of the Constitutional Court’s rulings on Tuesday, street protests continued.

Unlike in prior days, the largest protest on Tuesday was one in support of Rios Montt denying that there was genocide in Guatemala. Even more unusually, the majority of protesters supporting the former de facto head of state and denying the genocide charges were indigenous Ixiles who had arrived from western Guatemala on numerous buses throughout the morning.

The protestors carried various signs denying the genocide and denouncing international human rights actors.  A sign on one of the buses read, “Hairy Hippies and Foreigners, STOP Making Money Off the Lie of Genocide in NEBAJ” (Hippies Peludos y Extranjeros NO Hagan Dinero con la Mentira de Genocidio en NEBAJ). Other signs at the protest read: “NGO’s no more blackmail, manipulation and threats to the Ixil people” (ONGs no mas chantajes, manipulacion y amenazas al pueblo Ixil) and “The real truth is that there was NO GENOCIDE in Nebaj” (La pura verdad es que en Nebaj NO hubo GENOCIDIO).

Siglo 21 reported that 50 buses arrived in the capital on Tuesday morning; Prensa Libre estimated the number of protestors to be 500. The protest began outside of the US Embassy and then the group marched to the Supreme Court of Justice and the Constitutional Court, before ending their protest at the Plaza Mayor and boarding buses out of the city.  Various speakers chastised the guerillas and defended Rios Montt for providing them with public services. Guatemala’s Human Rights Ombudsman’s office (Procurador de Derechos Humanos, or PDH) provided monitors to ensure that protestors were undisturbed.

Ricardo Méndez Ruiz, president of the Foundation Against Terrorism and the son of Rios Montt’s former Minister of Interior, was actively involved in the protest and provided interviews to media outlets. Mendez Ruiz also authored an opinion piece in El Periodico on Tuesday which castigated Nobel Peace Prize winner Rigoberta Menchú, Guatemala’s truth commission (“elaborated by people with a Maxist Leininst political ideology”), Attorney General Claudia Paz y Paz, Judge Cesar Barrientos, the U.S. Ambassador, and the International Commission Against Impunity in Guatemala (Comision Internacional Contra la Impunidad en Guatemala, or CICIG) for being behind the genocide charges.

Siglo 21, Prensa Libre, and the PDH reported that there was also a smaller demonstration, of several dozen in support of the trial, in the Plaza de la Constitución.  They demanded the resumption of the trial and denounced the alleged “manipulation” by those bringing Ixiles to Guatemala City to protest against the trial.

Thomas J. Dodd Research Center at the University of Connecticut School of Law contributed to the research and writing of this blog.



  1. I was wpndering why nobody has reported about Israels active participation in the atrocities.
    Israel’s Proxy War in Guatemala
    Apr 24 2013
    Gabriel Schivone

    You may not know it from reading or listening to the major U.S. media, but the rest of the world has been steeped in news coverage of a former Guatemalan head of state recently on trial in a national court (though proceedings are currently on hold) for genocide and crimes against humanity. The accused, General Efraín Ríos Montt, was one of the most vicious mass killers the United States—or Israel—ever produced.
    Known as “Brother Efraín,” a fundamentalist convert of the California-based “Church of the Word” (Verbo), Rios Montt thanked his God in heaven for anointing him as Guatemala’s president, but on earth he thanked Israel for establishing his March 1982 military coup. Israeli press reported that 300 Israeli advisors helped execute the coup, which succeeded so smoothly, Brother Efraín told an ABC News reporter, “because many of our soldiers were trained by Israelis.” Through the height of la violencia (“the violence”) or desencarnacíon (“loss of flesh, loss of being”), between the late 1970s to early 1980s, Israel assisted every facet of attack on the Guatemalan people. Largely taking over for the United States on the ground in Guatemala (with Washington retaining its role as paymaster, while also maintaining a crucial presence in the country), Israel had become the successive governments’ main provider of counterinsurgency training, light and heavy arsenals of weaponry, aircraft, state-of-the-art intelligence technology and infrastructure, and other vital assistance.
    Photo Credit: Al Jazeera
    At the time, Rios Montt defended his war against the “guerrilla,” indistinguishable from civilian noncombatants, in this way: “Look, the problem of the war is not just a question of who is shooting. For each one who is shooting there are ten working behind him.” Rios Montt’s press secretary added: “The guerrillas won over many Indian collaborators. Therefore, the Indians were subversives, right? And how do you fight subversion? Clearly, you had to kill Indians because they were collaborating with subversion. And then they say, ‘You’re massacring innocent people’. But they weren’t innocent. They had sold out to subversion” (Witness to Genocide, Survival International, 1983, p. 12). Or, as one of Brother Efaín’s Verbo pastors explained to a delegation of Pentecostals from California about the regime’s awesome benevolence: “The army doesn’t massacre Indians,” the Verbo pastor assured the visitors. “It massacres demons, and Indians are demons possessed; they are communists.”
    A February 1983 CBS Evening News with Dan Rather program reported, Israel “didn’t send down congressmen, human rights activists or priests” to strengthen Israel’s special relationship with Guatemala. Israel “taught the Guatemalans how to build an airbase. They set up their intelligence network, tried and tested on the [Israeli-occupied Palestinian] West Bank and Gaza, designed simply to beat the Guerilla.” Time magazine (03/28/83) chimed in that Guatemalan army “outposts in the jungle have become near replicas of Israeli army field camps.” At one of these Israeli outposts replicated in Huehuetenango (among the areas hardest hit by the genocide, with the second highest number of massacres registered by a UN truth commission), Time continues: “Colonel Gustavo Menendez Herrera pointed out that his troops are using Israeli communications equipment, mortars, submachine guns, battle gear and helmets.” Naturally, as Army Chief of Staff Benedicto Lucas García had stated previously: “The Israeli soldier is a model and an example to us.”
    Today’s Guatemalan power elite, firmly rooted in the same lineage of death squads that ravaged the country for decades, continues to gaze on this legacy with adoration. “If there is thriving agriculture—it’s an Israeli contribution,” hailed Guatemala’s Congressional speaker in 2009 when his government body bestowed its highest honor to Israel, adding further praise for Israel having shared its “rich experience” in security, education, and medicine over the years.
    Investigative journalist Allan Nairn interviewed current Guatemalan President Otto Perez Molina when Molina was Rios Montt’s commander carrying out the genocide in the Nebaj area. At one point in the filmed 1982 interview, Molina shows Nairn one of his army’s artillery mortars, answering that the brand of weapon and its ammunition were provided by Israel.

    Apart from lasting accolades by Guatemala’s leaders, Israel’s participation in the repression is remembered somewhat differently by its victims, and by the children of its victims. An inter-generational memory is invoked in ongoing coalition work by students in the United States. Activists include undocumented students and young citizens alike, of Palestinian and Maya-Huehuetenango descent. Activities by organized groups cross-pollinate throughout related social struggles. They resonate from the curves of history and offer us ways to move full circle to justice.
    One such bend in history can be found in a refugee-led movement that focused on the Right of Return among tens of thousands of displaced Guatemalans who, for a generation, have been living in refugee camps throughout Southern Mexico. Voices of the Guatemalan movement defended a range of issues, from de-militarization of the country to gender equality within the camps. María García Hernández, co-founder of a refugee women’s organization called Mama Maquín, described the standpoint of her group: “The Guatemalan refugee and returnee women are clear about the fact that land is the most important family possession that we have. Land is…a space where we can live and work, defend our rights and pass on our culture, customs and languages to our daughters and sons.” Such sentiment and connection to the land resounds with those of the Palestinian struggle for liberation and return.
    García Hernández, whose community called for “all women of the world to fight together for a world with equality and justice,” added reflections of resilience in confronting the present and the future: “We face, with our families, the challenges of coping with the losses of war and exile….All women and men can help search for ways great and small to lead us to a resolution of our most urgent needs and the wish of all humanity to have a world of justice and peace.”
    Gabriel M. Schivone is an ad hoc Steering Committee member of National Students for Justice in Palestine. He is the author of the forthcoming title, In DREAMs and Genocide Denial: U.S. Immigration and the Destruction of Guatemalan Life.

  2. Much on that very sad angle is covered in Angela delli Sante’s excellent book, ‘Nightmare or Reality: Guatemala in the 1980s’.

    In all fairness, it must be said that many Israelis – including, as I remember from the book, Holocaust survivors – protested furiously against this.

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