Guatemala Justice Update, January 2014

When trial judges in Guatemala convicted their own former head of state, Efrain Rios Montt, of genocide last May—a worldwide first—the rule of law set down roots in a country renowned for impunity.  Subsequent events have shown how fragile those roots are.

Only days after the dictator’s conviction for his role in massacres of the indigenous Ixil during the country’s internal armed conflict, the Constitutional Court, in a divided and controversial judgment, annulled the ruling, forcing the disqualification of the trial court and upending the judicial process. Adding further confusion, in an October ruling, the Constitutional Court did not foreclose the possibility that a decades-old amnesty law could prevent the prosecution altogether, despite clear domestic and international prohibitions against the application of such an amnesty. A new trial date has been set far into the future—January 2015—and is facing renewed obstacles, due to an appeals court judgment last week.

The turbulent maneuvering related to the Ríos Montt trial happens against a backdrop of a year of transformation in the justice sector: In 2014, Guatemala selects a new slate of Supreme Court and appellate court judges and decides who will serve as Attorney General for the next five years. In the aftermath of the monumental genocide trial, these critical selection processes are already showing signs of politicization, including efforts to truncate the term of Guatemala’s pioneering attorney general, Claudia Paz y Paz.

Rios Montt Trial: A Renewed Legal Challenge

Legal and political challenges from the first days of this year present grave threats for Guatemala’s transitional justice processes.

Last week, an appellate court intervened to cause further waves in the prosecution of former Guatemalan military head of state, Efraín Ríos Montt. On January 10, the First Chamber Court of Appeals (Sala Primera de la Corte de Apelaciones) affirmed a controversial decision emitted by Judge Carol Flores, a pre-trial judge, who intervened on April 18, 2013, in the final stages of the trial, in what was then an unsuccessful effort to prevent its conclusion.

In her April decision, Judge Flores ruled that the judicial process must retreat to November 2011—before the indictment of Ríos Montt, to a time when he was a sitting congressman. She based her ruling on her improper disqualification as a pre-trial judge overseeing the case in November 2011. She ruled that the trial must return to the date of her disqualification and begin again. At the time, this decision was one factor leading to a temporary suspension in the trial. However, soon after, the Constitutional Court rejected Flores’ ruling, and sent the issue back to the lower court for review; the trial then concluded with Ríos Montt’s conviction.

The prosecutor and the civil party (CALDH) filed a legal challenge to the Flores ruling. The appellate court rejected the appeal filed by the civil parties in the case, effectively upholding the decision of Judge Flores. The appeals court apparently issued its decision September 2013, but only publicly announced it, and notified it to the parties, on January 10, 2014, opening this issue yet again.

One day after the appellate court’s judgment, the Ixil victims filed an appeal to the Constitutional Court. In its appeal, the victims assert that the appellate court ruling “supports an illegal action which obliterates not only the interests of the parties but also those of the Guatemalan justice system” as “the system ceases to pursue justice, focusing instead only on procedural matters.” (“…avala una ilegalidad que lacera no solo los intereses de esta representacion sino al sistema de justicia guatemalteco” … “el sistema deja de perseguir la justicia centrandose unicamente en la materia procesal.”)

A separate challenge filed in November by the victims of the massacres and other violations is pending before the Inter-American Commission of Human Rights.


Justice Sector Election Processes

At the same time, Guatemala is facing crucial decisions which will shape the country’s justice institutions in the years ahead. In 2014, Guatemala selects an Attorney General and a new slate of Supreme Court and appeals court judges.

Commissions to nominate candidates for Guatemala’s supreme and appellate courts are being selected, and are supposed to be tamper-resistant.  Commissions are comprised of deans of law schools, representatives of the country’s law association, and judges. Congress will have to choose from the commissions’ judicial nominees in the coming months. This year, a commission will also be convened to determine a short list of candidates for attorney general which will be sent to the president for final determination.

The guilty verdict in the Rios Montt trial last year, and subsequent obstacles in the case, have generated added interest, and risk of political interference, in the judicial nomination process. There are already signs of potential improper influence in the process, and of efforts to undo some of the important justice sector reforms of the past five years.

New law schools have been formed primarily to participate in and influence the nomination process. Some of these law schools exist only on paper, with their role to appoint “deans” whose sole purpose is to be part of the nominating commissions and vote on judge and attorney general nominations.

Further, though the current term of Guatemala’s Attorney General, Claudia Paz y Paz, is due to end in December 2014, there have already been efforts to truncate it earlier—in May 2014.

Late last year, two legal analysts for the country’s Supreme Court who issued an internal opinion confirming that the attorney general’s term should last through the year were fired. In November, the Bar Association (Colegio de Abogados), which plays a prominent role in the nominating commissions, requested that Congress intervene to seek a constitutional ruling on the length of the Attorney General’s term. And just last week, a prominent Guatemalan businessman filed a constitutional challenge seeking to truncate her term.

Paz y Paz was appointed to head the Public Ministry in December 2010, after the Constitutional Court forced the disqualification of the lawyer previously appointed to serve that role. Paz y Paz has explained that she was appointed in December 2010 for a period of four years, and her term should thus appropriately end in December 2014.

A bright spot in a bleak landscape, Paz y Paz has undertaken significant reforms in the Public Ministry that have increased the number of, and improved, homicide and organized crime prosecutions. In her first three years in office, impunity for homicides dropped from 95% to 70% in one of the deadliest countries in the world.

The Public Ministry and CICIG worked on such institutional reforms as the creation of “high risk courts” composed of vetted judges who have some protections and specialized resources; specialized units of prosecutors to handle complex or politically challenging cases; and streamlined management and oversight of prosecutions. These reforms ultimately allowed the groundbreaking Rios Montt genocide conviction.

The shortening of Paz y Paz’ term would demonstrate the politicization of the rule of law in Guatemala, further discouraging other candidates with integrity from considering these posts. It would also limit the ability of the Public Ministry to institutionalize important reforms.

This year is a crucial one for the independence of the justice sector in Guatemala. Challenges are already evident.