International Justice Monitor

A project of the Open Society Justice Initiative

Uncertainty Hovers Over Next Stages in Historic Guatemala Genocide Case After Constitutional Court Overturns Conviction

One week after the Constitutional Court overturned the then days-old conviction of Guatemala’s former de facto president Efrain Rios Montt for genocide and crimes against humanity, the status and future prospects of this historic case remain uncertain. This was the first conviction of a head of state for genocide in a domestic court, with prosecutors, survivors and human rights organizations seeking to hold Rios Montt accountable for abuses committed during the most brutal period of Guatemala’s 36-year civil war, including the killing of 1,771 Maya Ixiles.

Historic Verdict and Judgment Issued – and Overturned in Contentious Constitutional Court Decision

On Friday, May 10, the six-week trial concluded, following the testimony of over 90 witnesses as well as experts in various fields, and the presentation of documentary, forensic and other evidence. The prosecution presented evidence concerning massacres and killings, rape and sexual violence, torture, the abduction of children, the destruction of homes and crops, and the forcible displacement of Guatemala’s Maya Ixil population during Rios Montt’s 17-month rule in 1982 and 1983.

Judge Yassmin Barrios presided over a three-judge tribunal of the trial court (Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente de Mayor Riesgo “A”) which convicted Rios Montt of genocide and crimes against humanity and sentenced him to 80 years in prison. One week later, on May 17, the trial court released a 718-page final judgment laying out the foundation for the conviction.

On Monday, May 20, only ten days after the conviction, Guatemala’s Constitutional Court, issued a 3-2 ruling, overturning the verdict and setting the trial backward. The decision stemmed from one of many constitutional challenges (amparos) raised by Rios Montt’s defense attorneys at the very end of the trial, some of which are still pending. In this challenge, Rios Montt alleged that the trial court had not sufficiently remedied a due process violation from the opening day of the trial, even though the appeals court recognized—the day before the verdict—that the trial court fully complied with its order to remedy the violation. In the Constitutional Court’s May 20 judgment, the majority ruled that the trial court had not satisfactorily remedied the violation.

In two strongly-worded dissents, Judges Mauro Chacon and Gloria Porras contested the Constitutional Court’s authority to issue a judgment on this matter, and criticized the majority judgment for issuing a “disproportionate” remedy that did not sufficiently take into account either the fact that the trial court had already entered a judgment or the rights of the victims. Both dissenting judges affirmed that the appropriate mechanism to remedy any due process violation would be an appeal through normal channels (in Guatemala, the “special appeals” process, or apelacion especial, described in Articles 415-22 of the Guatemalan Criminal Procedural Code), and not a constitutional challenge (amparo). The dissenting judges found the Constitutional Court’s intervention particularly improper and extraordinary in that it came subsequent to the issuance of the judgment, but before the initiation of any appeals process.

Judge Porras went even further in her dissent to assert that the Constitutional Court had based its judgment on an improper reading of the underlying facts, and of the challenge lodged by Rios Montt. According to Judge Porras, the Constitutional Court’s resolution presumed a challenge never made by Rios Montt’s lawyer; granted a remedy not requested by Rios Montt; responded to events that never occurred in the courtroom; and did not acknowledge that the underlying due process violation—the expulsion of his newly-appointed lawyer on the first day of the trial and the refusal to substantively consider the same lawyer’s requests for the disqualification of two of the three trial court judgments—had already been appropriately remedied by the trial court. She described the judgment as “devastating for the justice system, and even more, for the victims that have relied on this system.” (“[D]eciden hoy ordenar la ejecución de un acto in nane, otorgando un ocurso cuyo efecto es devastador para el sistema de justicia ordinaria, pero aún más, para las víctimas que han confiado en dicho sistema.”)

Last week, the Guatemalan newspaper Prensa Libre posted the audio from the first day of the trial, noting that the actual statements of Rios Montt’s attorney on that day re-affirmed Judge Porras’ arguments that the Constitutional Court was not accurately basing its judgment on the facts, and thus shedding “doubts” on the majority ruling of the Constitutional Court.

Reaction to the Constitutional Court’s Decision

Domestic and international actors expressed strong sentiments following the Constitutional Court’s judgment.

Rios Montt’s attorneys applauded the Constitutional Court’s decision and called for an end to his arrest. Rios Montt was imprisoned in Matamoros Prison immediately after his Friday, May 10 conviction. However, by Monday, May 13, he had been transferred to a military medical center where he has remained for tests and medical procedures.

Soon after the judgment, both the Public Ministry and the civil parties launched legal challenges to the Constitutional Court’s rulings, with the Public Ministry seeking clarification (aclaraciones) and CALDH seeking to annul the judgment.

Jorge Mario García Laguardia, a former president of Guatemala’s Constitutional Court and Human Rights Ombudsman gave an extended interview to El Periodico in which he described the Constitutional Court’s May 20 judgment as clearly excessive, with the Constitutional Court intervening when it should have left matters for the ordinary appellate process. He expressed his support for both dissenting opinions, noting in particular Judge Porras’ clear statement that any due process violations “had already been resolved” and the legal challenge was unfounded. García Laguardia described the actions of Rios Montt’s lawyers as “an evident case of malicious litigation” (“un caso evidente de litigio malicioso que es punible y condenable”).

Protesters in Guatemala and other countries staged marches “against impunity” on Friday, May 24 to contest the Constitutional Court’s judgment.

The Office of the UN High Commissioner for Human Rights (OHCHR) highlighted the vulnerability of the “right of victims in Guatemala to obtain remedies” and the need for the trial to “be decided on its merits.”

Amnesty International and Impunity Watch also expressed concern, with Impunity Watch describing the Constitutional Court’s decision as “legitimizing the systematic and abusive legal procedures and formalities” widely condemned by domestic and international actors.

Some international newspapers criticized the Guatemalan Constitutional Court’s decision to overturn the historic genocide conviction as a sign that impunity still reigned in Guatemala. The New York Times, for instance, issued an editorial describing the Constitutional Court’s judgment as a “serious setback in the effort to demand accountability for those terrifying years and move the country toward reconciliation.” This editorial drew a rebuke from Guatemala’s Vice Minister of Foreign Affairs, who described the Constitutional Court’s ruling as an effort to rectify “serious irregularities in the trial procedures,” and stated that an appeals court had already been appointed within 24 hours of the Constitutional Court’s ruling to implement the judgment.

Following the Constitutional Court’s Decision

In actuality, the Supreme Court struggled to identify judges to serve on the three-judge appellate court (Sala Primera de Apelaciones) to be convened to implement the Constitutional Court’s May 20 order. Scores of judges – 59 reportedly, at last count – refused to serve on the tribunal.

By Thursday, three days after the Constitutional Court’s judgment, the Supreme Court eventually succeeded, at least temporarily, in composing a three-judge appeals court of Judges Frank Martinez Ruiz, acting as presiding judge, Juan Ramón Hernández Pineda and Juan José Rodas Martínez. However, civil party CALDH sought the recusal of Judges Martinez Ruiz and Rodas Martínez, resulting in the successful recusal of the latter on Friday, May 24. (Rodas Martinez had been Guatemala’s ambassador to Uruguay, Paraguay and Argentina during Rios Montt’s rule.) Rodas Martinez was replaced by Judge Frank Trujillo.

With a new appeals court finally composed and convened, the appeals court quickly moved to implement the Constitutional Court’s May 20 resolution. On Monday, May 27, after four hours of deliberation, the appeals court ordered the trial court to revert the trial to its status as of April 19 and to consider Rios Montt’s motion to disqualify two of the three trial court judges, consistent with the Constitutional Court’s order. In the appeals court’s resolution it “annulled all that occurred in the public oral phase of the criminal trial against Rios Montt and Rodriguez Sanchez from April 19, 2013” (“se anula todo lo actuado en la fase del debate oral y publico del proceso penal contra Ríos Montt y Rodríguez Sánchez a partir del 19 de abril de 2013”).

After receiving the case file, the three-judge tribunal that had heard the entire six-week trial recused itself from further hearings after affirming the Constitutional Court’s order to leave all proceedings subsequent to April 19 “without effect” (sin efecto) and suspending the trial. According to civil party CALDH, the tribunal did not yet provide a written explanation for its decision.

Prensa Libre also reported that the Constitutional Court on Monday, May 27 rejected four legal challenges presented by the Public Ministry and the civil party CALDH, seeking to overturn the Constitutional Court’s May 20 resolution overturning the verdict and setting the trial back. This could not be confirmed and any Constitutional Court judgments were not available to the parties at the time of publication.

The civil parties have continued to strongly contest the legality of the Constitutional Court’s ruling while the defense attorneys have been uncharacteristically more subdued over the past week—affirming, however, that the trial would need to start afresh.

With the turn of events over the past week, and many questions (and challenges to the Constitutional Court) still unresolved, there continues to be tremendous uncertainty about the status of the historic case against Rios Montt for genocide and crimes against humanity. Will it continue, and if so, when? If it does continue, from what point will it start? Under which judges?

Will there be other judicial interventions that will create further confusion before a trial court reconvenes? Does the confluence of judicial orders even permit the trial to start afresh?

Importantly, if the case starts again from the beginning, will victims be willing to testify to atrocities or will they have lost faith in the justice system or their own safety in testifying?

Portillo Extradited to the United States to Face Corruption Charges

At the end of the same week the Constitutional Court annulled the conviction of former de facto president Rios Montt for genocide, Guatemala extradited former president Alfonso Portillo. Portillo had been president of Guatemala from 2000 to 2004, representing the Guatemalan Republican Front party (FRG, for its initials in Spanish), a political party founded by Rios Montt.

On Friday, May 24, Portillo was extradited to New York on corruption charges related to an alleged conspiracy to launder approximately $70 million of national funds using U.S. banks. Portillo also faced charges in Guatemala for embezzlement, and was extradited there from Mexico in 2008, but was acquitted of the Guatemalan charges in 2009.

Many inside and outside of Guatemala discussed the Constitutional Court’s overturning of the Rios Montt genocide conviction alongside the extradition of Portillo. Within the same week, these two efforts to challenge the impunity of former Guatemalan heads of state are taking different paths—one moving forward towards an imminent prosecution, and the other with a just completed prosecution now appearing to unravel through contested means.