Legal challenges and public debates mount in Guatemala while the Constitutional Court deliberates

The criminal trial of Rios Montt and Rodriguez Sanchez for genocide and crimes against humanity is currently suspended pending the constitutional review of various issues and judicial decisions. While the Constitutional Court deliberates, supporters of the victims and the military continue to engage in public protests outside of the courtroom.

On Friday, April 19, the trial was suspended following the unexpected ruling of Judge Carol Patricia Flores on Thursday, annulling the proceedings. Judge Flores, who presided over preliminary hearings at an earlier stage, prior to her November 2011 recusal, asserted that the annulment of proceedings was required pursuant to an order of the Constitutional Court (requiring the admissibility of some defense evidence previously ordered excluded, but nonetheless admitted by the trial court) and a separate order of the Supreme Court (rejecting as illegal her recusal from the earlier proceedings, and reinstating her).

The tribunal overseeing the trial rejected Judge Flores’ order as illegal, insisted that the tribunal and the judges were not subject to illegal orders, and suspended the proceedings pending review by the Constitutional Court. Judge Yassmin Barrios, President of the trial court, asserted that the tribunal would contest the legality of Judge Flores’ decision and seek review by the Constitutional Court.

In the intervening days, the Public Ministry and civil parties filed various amparos and other legal actions against Judge Flores’ ruling annulling the proceedings, and against other related actions. The defendants, for their part, also filed legal actions related to other aspects of the trial.

On Monday night, after an extraordinary session, the Constitutional Court announced that it had not yet made any decisions concerning the legal challenges filed in connection with the trial, and that its deliberations continue. Article 361 of the Guatemalan Criminal Procedure Code requires that a trial be declared null if suspended for more than 10 days, suggesting a temporal limit for the Constitutional Court’s review of the legality of Judge Flores’ decision.

Siglo 21 and El Periodico reported that there are at least 12 actions pending resolution by the Constitutional Court, including the challenge to Judge Flores’ annulment of the trial; an appeal by Francisco Garcia Gudiel, one of Rios Montt’s lawyers who had been expelled from the trial on its opening day; and an appeal concerning the applicability of a historic 1986 amnesty, explicitly overturned by law in December 1997.

According to news reports, the Constitutional Court asserted that it had not yet received the case file from the trial court, or its request for judicial review.

El Periodico also reported two new legal challenges filed on Monday:  Rios Montt alleges he remains under a now illegal house arrest; and Rios Montt also attempted to reinitiate a civil action against the President of the trial court.

The International Commission Against Impunity in Guatemala (Comision Internacional Contra la Impunidad en Guatemala, or CICIG) announced that it has had open investigations “for some time” against Judge Flores for “malfeasance” (prevaricato), according to reports by Siglo 21 and Emisoras Unidas.

In other legal developments, legislator Amilcar Pop and Nobel Peace Prize winner Rigoberta Menchú announced on Friday that they are appealing to the Inter-American Commission on Human Rights (Comisión Interamericana de Derechos Humanos) for protective precautionary measures (medidas cautelares) for the trial court judges, prosecutors, and witnesses involved in the case, in light of perceived threats.

Last week in the courtrooms, supporters of the defendants and supporters of the victims publicly cheered and lamented rulings. Now, with the courtrooms closed, they have taken to the streets and media outlets.

Victims, survivors and their supporters have continued to protest publicly, meeting in front of the Constitutional Court daily since the suspension of the trial. On Sunday, Guatemalan human rights activist Helen Mack read a statement signed by 30 human rights organizations at a press conference urging the Constitutional Court’s action. Supporters of the military also protested in various parts of the city, under the banner “there was no genocide” (no hubo genocidio).

Various international actors have expressed strong support for the continuation of the trial in recent days. On Friday, the Office of the United Nations High Commissioner for Human Rights called for the trial to continue, identifying its early cessation as an affront to the victims. Other rights groups – including Open Society Justice Initiative, International Center for Transitional Justice, Center for Justice and International Law, and the Washington Office on Latin America – rejected improper interference in the trial, and called for the trial to conclude. Others expressed support for the continuation of the process and solidarity with the victims, including Amnesty International, the Forum of International NGOs in Guatemala, Impunity Watch, and the International Federal of Human Rights (FIDH).

Electronic polling by media outlets portrayed a divided public. Electronic polling by El Periodico showed a roughly even division among those responding on the question of whether there was genocide in Guatemala – with a slight majority of those polled (54%, on the evening of April 23) asserting that they did believe that there was a genocide in Guatemala. The breakdown in Siglo 21’s poll seeking public opinion on the validity of Judge Flores’ decision to annul the trial proceedings was similar: 53% supportive of the annulment and 47% opposed.

The Foundation against Terrorism (Fundación Contra el Terrorismo), run by Ricardo Mendez Ruiz, sought to influence public opinion on the question of whether there was genocide in Guatemala, funding two 20-page inserts entitled “The Farce of Genocide in Guatemala: The Marxist conspiracy from the Catholic Church,” in each of the last two Sunday editions of El Periódico. The April 14 insert highlighted on its front cover an injured soldier and asserted: “We are not laboratory rats for social experiments” in “twisted models of justice.” The April 21 insert called the genocide charges “good business”, and criticized various actors for advancing the genocide claims, including the Church, foreign governments, local and foreign organizations, and the Attorney General and her extended family.

Mendez Ruiz, the son of Rios Montt’s former Minister of Interior, previously sought the prosecution of members of the Attorney General’s extended family, accusing them of his alleged kidnapping and torture in 1982 at the hands of the Guerrilla Army of the Poor (Ejercito Guerrillero de los Pobres, or EGP). In response to this Sunday’s paid newspaper supplement, the Public Ministry reportedly asserted that the publication “did not merit a response” (no merece comentarios).

Contributing to a debate about the relationship between peace and justice in Guatemala, a group of more than 50 Guatemalans issued a statement that “True peace is born from justice” (La verdadera paz nace de la justicia). This debate was fuelled last week by a public statement endorsed by the President, entitled “Betraying the peace and dividing Guatemala” (Traicionar la Paz y dividir a Guatemala), which asserted that the genocide charges threaten the peace in Guatemala.

That statement has been the source of much public debate, and various statements of concern, including by CICIG. Early this week, Richard Aitkenhead, a signatory to Guatemala’s peace agreement and to the “Betraying the peace” public statement, and Jose Raul Gonzalez Merlo, separately criticized CICIG for its public criticism of the statement.

Also last week, a delegation of Latin American judges and prosecutors attended the trial as international observers. Various newspapers reported their accounts of the proceedings. El Periodico, for instance, recorded an interview with Avelino Guillén, the Peruvian former prosecutor responsible for the conviction of ex-President Alberto Fujimori of crimes against humanity, sentenced to prison for 25 years in 2009.

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