International Justice Monitor

A project of the Open Society Justice Initiative

Constitutional Court apparently divided on whether Rios Montt's conviction for genocide should stand

Less than one week after the trial court’s conviction of former de facto head of state Efrain Rios Montt, Guatemala’s Constitutional Court has been reviewing challenges to the trial—challenges which the Court’s General Secretary has asserted could lead to an annulment of the trial or the dismissal of some or all of the three trial court judges. Now the Constitutional Court announced that it would not issue decisions until it reconvenes for a special session at 10 am on Monday morning.

A Guatemalan newspaper reported on Friday morning that the Constitutional Court’s delays are a result of internal division within the Court—but that three of five judges are at this stage inclined to annul the verdict and the final days of the trial. Rios Montt’s attorney threatened national “paralysis” if the Constitutional Court rules the wrong way.

Meanwhile, the trial court has scheduled a hearing for Friday, May 17, to release the final and complete judgment and sentence of the trial court. One week earlier, on Friday, May 10, the trial court provided its verdict, sentence and a summary of the reasoning, finding Rios Montt guilty of genocide and crimes against humanity and sentencing him to 80 years in prison. The court acquitted his co-accused, Mauricio Rodriguez Sanchez, former head of intelligence under Rios Montt.

All Eyes on the Constitutional Court

The Constitutional Court is reportedly reviewing at least four legal challenges to the trial. The judges have apparently been deliberating over these issues since at least Monday, May 13. On Thursday, the Constitutional Court stated that it would not in fact issue any decisions until a special session to be convened on Monday at 10 am.

The Court had been due to issue decisions on Wednesday, but delayed the release apparently due to the “complexity of the subject matter” (la complejidad del asunto). On Thursday, for the second day in a row, the Court’s General Secretary announced that the Court would again delay the release of any judgments to allow further consultation within the court. Martin Guzman, the Court’s General Secretary, announced to the assembled media in a Thursday afternoon press conference that the decision to delay the release of any judgments until Monday was a unanimous decision of the Court.

El Periodico reported on Friday that the delays at the Constitutional Court are the result of internal divisions between the judges about a legal challenge (ocurso en queja) presented by Rios Montt’s defense team. The newspaper reports that, currently, three of five Constitutional Court judges support the annulment of the latter stage of the trial, and its return to its status on April 19. (On April 19, the tribunal had heard all prosecution witnesses, but still awaited the presentation of some of the defense witnesses, closing arguments and, of course, the final verdict and sentence.) This could not be confirmed.

According to this report, the defense team asserts that the trial court should not have re-convened on April 19 subsequent to an order by an appeals court (Sala Tercera de la Corte de Apelaciones) that the trial court suspend the trial. The appeals court decision was in response to the defense’s allegation that the trial court had violated Rios Montt’s rights by expelling his attorney Francisco Garcia Gudiel on the first day of the trial.

(Garcia Gudiel presented himself as an attorney for Rios Montt on March 19, the first day of the trial, replacing his entire pre-existing defense team. On the same day, Garcia Gudiel was expelled by the tribunal for various reasons, including that he presented a conflict with two of the three judges and argued that his representation of Rios Montt would force the disqualification of these two judges.)

In the end, the trial court did in fact suspend the trial on April 19, but for other reasons: Pre-trial judge Carol Patricia Flores ordered the trial annulled on April 18, in a highly controversial action. While the trial court rejected this annulment as illegal, it suspended the trial the following day for the resolution of various related issues.

In the interim, during the suspension of the trial, the Constitutional Court ruled that the trial court should rectify the due process violation. Thus, when the trial court reconvened on April 30, it reinstated Garcia Gudiel as Rios Montt’s defense counsel, re-read the indictment, and set aside the testimony of the witnesses heard during the first afternoon when Rios Montt did not have a defense attorney present.

According to the El Periodico report, there are other challenges being reviewed by the Constitutional Court which could affect the stability of the verdict.

The El Periodico report states that the Constitutional Court is reviewing a separate challenge that the trial court did not properly suspend the trial and transfer the case file to Judge Flores to consider the admissibility of defense evidence—ordered by the Constitutional Court on April 3. (The trial court had asserted that it was in compliance with the Constitutional Court’s judgment, and could proceed, because it had admitted all of the defense evidence despite a more narrow admissibility ruling by a different pre-trial judge.) On April 23, the Constitutional Court issued a prior judgment on this issue, and subsequent to this judgment, the trial court transmitted the case file to Judge Flores to rule on the issue of the admissibility of defense evidence.

The El Periodico article identifies as another challenge (for “satisfactory execution”, or debida ejecución) that Rios Montt’s defense team seeks an order from the Constitutional Court that the trial court refrain from issuing its full judgment, which it is due to issue Friday, May 17. Rios Montt’s defense team argues that, prior to the release of the full sentence, the Constitutional Court must review and decide on the legal challenge related to Garcia Gudiel’s reinstatement. The fact that the Constitutional Court did not rule on this issue, and the trial court is due to issue its full sentence today, may make this issue moot.

(On April 23, the Third Chamber of the Court of Appeals ruled in favor of Rios Montt on the question of Garcia Gudiel’s reinstatement. However, on May 9, while the trial court was in closing arguments, the Third Chamber rejected a complaint presented by Rios Montt that the trial court had not complied with the Court of Appeals ruling.)

The Constitutional Court has announced that they will meet again on Monday at 10 am for an extraordinary session to try to reach consensus.

Response by Attorneys to Constitutional Court’s deliberations

Garcia Gudiel, Rios Montt’s attorney, said that the Constitutional Court must act quickly to resolve the uncertainty in this case. He threatened that, “if the judgment is unfavorable, there are 45,000 sympathizers of the General ready to paralyze the country.” (“Estamos a las puertas de una decisión que puede cambiar el futuro de este país. Si el fallo es desfavorable hay 45 mil simpatizantes del General dispuestos a paralizar el país, realmente creemos que no puede aplazarse por más tiempo, porque hay demasiada zozobra e incertidumbre alrededor de este proces.”)

Hector Reyes, attorney for civil party CALDH, noted that the sentence can only be challenged by apparopriate remedies—“the special appeal” (la apelación especial)—which can be presented within ten days of the issuance of the final sentence. (“La sentencia del tribunal únicamente puede ser impugnada por los recursos idóneos que son la apelación especial, y a partir de hoy comienza el plazo de diez días para presentarlo, todos los actos adicionales tendrán que ser bien analizados por los magistrados, porque en sus resoluciones podrían incurrir en ilegalidades”.) 

Investigation of Judge Carol Patricia Flores

Guatemalan media also reported on Thursday that Guatemala’s judicial authority (el Organismo Judicial, or OJ) and the Human Rights Ombuds Office (la Procuraduría de Derechos Humanos, or PDH) are each investigating Judge Flores. These investigations are the result of complaints made by Ramon Cadena, of the International Commission of Jurists, on April 19.

Cadena, in his complaint, alleged that Judge Flores should be dismissed as her actions “demonstrate that organized crime has infiltrated her position and it should be investigated who is protecting her.” (Sus fallos “evidencian que el crimen organizado se infiltró a su juzgado y debe investigarse quién la protege”.) According to Siglo 21, Cadena’s complaint to the PDH asserted that Judge Flores’ actions violated the access to justice of the victims of grave crimes.

As noted above, Judge Flores was the pre-trial judge responsible for part of this case. In an April 18 hearing held ostensibly to implement a Constitutional Court order to admit evidence previously ruled inadmissible by a different pre-trial judge, Judge Flores instead ordered the entire trial annulled and the case returned to where it was seventeen months prior, in November 2011. At the time of Judge Flores’ annulment order, the case had already progressed significantly, with all of the prosecution’s witnesses heard by the trial court, with the court only waiting to hear a few remaining defense witnesses and closing arguments.

On April 19, the trial court rejected this annulment order as illegal but nonetheless suspended the trial pending constitutional review. At the time, 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).

On May 8, after the suspension had been lifted and with the trial proceeding, the Constitutional Court rejected Judge Flores’ annulment order. However, when Judge Flores re-convened for another hearing on May 10—after closing arguments and the end of the trial but before the verdict was handed down—she reiterated the same annulment order she had previously issued. The trial court issued the verdict nonetheless.

More Official Statements From Inside and Outside of Guatemala

Guatemala’s Foreign Minister Fernando Carrera, during an interview given while on a trip to China, asserted that the genocide trial demonstrates the maturity of Guatemala’s institutions, and the existence of judicial independence within Guatemala.

Jorge de Leon Duque, Guatemala’s Human Rights Ombudsman (Procurador de Derechos Humanos), also stated in a press conference on Thursday that the trial demonstrated that it was possible in Guatemala to prosecute grave crimes against former high-level officials and ensure that the due process requirements are met. He highlighted that the trial provided an opportunity for victims to disclose the truth of what happened to them.

US Congressperson James McGovern also released a statement on the Rios Montt conviction. He stated also that “the Guatemalan court’s ruling demonstrates that everyone is subject to justice, and even the most vulnerable communities can seek and achieve justice for heinous crimes committed against them.”