Lower court judge complies with Constitutional Court order; trial may re-start next week

After a suspenseful week of a suspended trial and a series of legal actions before multiple national courts, the trial against former de facto head of state Rios Montt and his head of military intelligence Rodriguez Sanchez for genocide and crimes against humanity may resume after a hearing convened on Friday by Judge Carol Patricia Flores.

Judge Flores, a first-instance judge overseeing pre-trial matters, convened the hearing pursuant to a Constitutional Court ruling issued on Thursday instructing her to carry out – “exactly” – an earlier Constitutional Court decision that required her to incorporate evidence deemed inadmissible in earlier pre-trial proceedings and, immediately thereafter, return the case file to the trial court. The Constitutional Court provided this order in response to Judge Flores’ request for guidance, after she stated that the Constitutional Court’s orders, coupled with her own actions, left her with “doubt and uncertainty” about how to proceed.

Judge Flores intervened a week ago – on Thursday, April 18 – and annulled all proceedings in the case subsequent to November 2011, even though the trial was on the verge of completion. November 2011 corresponded to the time when she was recused and replaced by Judge Miguel Angel Galvez. A recent judicial decision voided this earlier recusal, and Judge Flores stated that the annulment order was consistent with this and other Constitutional Court judgments. Judge Flores’ annulment order was immediately rejected by Judge Yassmin Barrios, the judge overseeing the trial, thus setting in motion the suspension of the trial and a string of complicated legal challenges.

Judge Flores asserted, in her appeal to the Constitutional Court for guidance, that her order to annul the trial was inconsistent with the Constitutional Court’s order to merely admit evidence and return the case file to the trial court. In effect, she asserted that her judgment to set the case back 17 months would make the decision regarding admissibility of evidence no longer relevant—in November 2011, Rios Montt and Rodriguez Sanchez were not yet even defendants, and the case had not yet proceeded to the stage at which evidence is examined for admissibility.

After receiving the new guidance from the Constitutional Court on Thursday, Judge Flores hastily convened a hearing on Friday afternoon. Present at the hearing were defendants Rios Montt and Rodríguez Sanchez, and their attorneys—Marco Antonio Cornejo, Francisco José Palomo, Luis Alfonso Rosales, and Hernandez Zamora. Representing the prosecution and civil parties at the hearing were Orlando Lopez and Eric Giovanni de Leon (Public Ministry), Edgar Perez and Benjamin Manuel Gerónimo (AJR), and Juan Francisco Soto, Hector Reyes and Francisco Martín Vivar (CALDH).

At the outset of the hearing, Judge Flores explained that she was ordering the admissibility of previously excluded defense evidence, pursuant to the Constitutional Court’s April 3 judgment, and that she would return the case file to the trial court. In light of the Constitutional Court’s 24-hour requirement for the transfer of the case file, Judge Flores must provide the trial court with the case file by Monday afternoon, according to El Periodico.

Attorneys for defendants Rios Montt and Rodriguez Sanchez immediately contested this decision. They insisted that the current proceedings conflicted with Judge Flores’ resolution to annul the oral hearings, a decision that they held to still be valid and binding (firme) as it had not been overturned. Further, they insisted that the Constitutional Court’s refusal thus far to issue a judgment on the merits of Judge Flores’ annulment order as a validation of that order. On April 23, the Constitutional Court rejected, on purely procedural grounds, the legal action (ocurso en queja) filed by CALDH challenging the annulment order.

The defense asserted that, given that Judge Flores annulled the trial as well as the pre-trial decisions, Judge Flores could not now admit evidence into an “intermediate stage” that no longer exists. In other words, this was not the moment to admit evidence as that action corresponds to a later stage in the proceedings.

The defense declared that Judge Flores’ Friday resolution was procedurally defective (una actividad procesal defectuosa).  The defense offered that, in order to avoid this conflict and clarify the process, they notified the Court of Appeals that they were desisting (desistimiento) from the original legal action (amparo) before the appeals court challenging the exclusion of evidence. Given that they were no longer pursuing this action, the issue was now moot (sin materia), according to the defense:  “it is as if the amparo does not even exist.”

Judge Flores responded that she had not been officially notified of the defense’s  decision to withdraw the legal action, and thus had to comply with the Constitutional Court order. She also stated that the validity of her April 18 annulment order had to be reviewed by the appropriate judicial body.

However, Judge Flores agreed with the defense that the resolutions do appear contradictory and generate uncertainty, and stated that this motivated her appeal to the Constitutional Court for further guidance. She stated that she considered her April 18 resolution as still valid (vigente)—though she did not describe it as “binding” (firme).

The prosecution briefly responded by stating that the April 18 annulment order was not binding and still under judicial review. Civil party AJR filed a legal challenge (amparo) with the Court of Appeals, and the Public Ministry also has a separate challenge outstanding.

Members of the international community continued to express concern regarding the delay in justice. Prensa Libre reported that the U.S. government urged the authorities in Guatemala to ensure that the trial is transparent and impartial. Stephen J. Rapp, the U.S. Ambassador-at-Large for War Crimes Issues, concluded a three-day trip to Guatemala on Friday.  During his visit, Ambassador Rapp stated that the genocide case is important not just for Guatemala, but for the entire world.

Various sources reported that the International Commission of Jurists (ICJ) filed a formal complaint with Guatemala’s Human Rights Ombudsman (Procuraduría de los Derechos Humanos, or PDH) concerning Judge Flores’ annulment of the trial. The complaint argues that the judge exceeded her authority. The PDH provided Judge Flores five days to respond.

According to press reports, President Otto Perez Molina again intervened in public discussions around the trial on Friday. He described the trial as historic, but warned that the process can have negative consequences. The President stated that he would not personally intervene in the process.

Emi MacLean, Legal Officer at the Open Society Justice Initiative, and students of the Thomas J. Dodd Research Center at the University of Connecticut School of Law contributed to the research and writing of this blog.


  1. The history of modern man is the war to the death between Power and human rights. All socio-political divisions based on nationality, party, ideology, culture are secondary. Power seeks the elimination of human rights even as a concept or vision for human rights represent the core obstacle to Power’s freedom of movement.

    The history of the last two centuries, in a sentence, thus condenses to the tortured process of moving from the concept of elections to the elimination of slavery to decolonization to the Nuremburg Trials to the dissection of CPSU abuse of power by Solzhenitsyn and Sakharov to the indictment of Pinochet in Spain to the trial of Milosovic to the war crimes tribunal in Malaysia that resulted in the conviction in abstentia of Bush and Cheney, living former leaders of a reigning superpower.

    Montt’s trial is a key step in the historic process of creating a civilized world in which justice will be recognized as having precedence over the exercise of power by the elite.

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