Questions Remain over Planned Restart of Rios Montt Trial

On May 20, 2013, Guatemala’s constitutional court upended the genocide trial of former head of state Efraín Ríos Montt and his then head of intelligence Mauricio Rodriguez Sanchez annulling the verdict issued just days prior. As a result, a new court is due to convene a new trial starting January 5, 2015. Victims and their attorneys have challenged the overturning of last year’s verdict before the Inter-American Commission on Human Rights—calling the constitutional court’s actions a violation of their rights and of judicial independence. Now, a month before the scheduled start date for a new trial, there are numerous unanswered questions about the process.

First, on October 22, 2013, the Guatemalan constitutional court re-opened the question of whether an amnesty established by the military dictatorship applied to prevent the prosecution of Ríos Montt for genocide. The application of an amnesty here would be a clear violation of international law which prevents amnesties for international crimes, including genocide and crimes against humanity. Nonetheless, the constitutional court sent the issue to the appellate court, asking it to elaborate on its reasoning in a prior decision rejecting the 1986 amnesty for Ríos Montt.

In response, two of the three judges on the appellate court excused themselves, arguing that they cannot provide a second opinion on the same issue for which they have already issued an opinion. Sixty-one appellate court judges have since then also excused themselves. Despite lacking a quorum, the third judge who had not excused himself, Franc Martinez Ruiz, has reportedly drafted a decision which remains unreleased.

Judge Martinez Ruiz previously endorsed a controversial April 2013 appellate court decision which would send the prosecution back to where it was in November 2011, before Rios Montt’s indictment, and has confirmed that he has recently had behind-the-scenes meetings with Rios Montt’s lawyers about the case. The reports that this judge prepared an opinion heightened fears that a court may again seek to prevent the former dictator’s prosecution relying on a decades-old self-amnesty decree.

Secondly, the constitutional court still has not resolved the question as to the stage at which any trial should be re-commenced. The constitutional court’s judgment annulling the trial set the trial back to April 19, 2013—after most of the evidence had been heard and before closing arguments. But can a new tribunal be convened to issue a decision based on witnesses who had been heard by a different set of judges?

Moreover, there remains the question of whether the case should be brought even further back—to before Rios Montt’s indictment. Investigative judge Carol Patricia Flores shocked trial observers during the genocide trial by issuing a contentious judgment that the trial should be returned to its status in November 2011, when Judge Flores was first removed as the investigative judge, a decision subsequently reversed. This temporarily stalled the trial until the constitutional court intervened and required that Judge Flores withdraw that order. However, this issue was never entirely resolved and Judge Flores continues to insist on the validity of her initial order. Rios Montt’s defense lawyers have advanced the same arguments, including in a November 2013 petition resolved with a decision released publicly last week—one year after it was initially issued.

Should the trial start in early January as scheduled, the political and judicial context surrounding any new trial would be politically fraught. Elections are expected for September. The business sector and military vehemently opposed the genocide prosecution in 2013. In May 2014, the two main political parties adopted a congressional resolution stating that there was no genocide in Guatemala.

A state representative—Antonio Arenales Forno, Secretary of the President’s Human Rights Commission (COPREDEH)— in a hearing before the Inter-American Commission on Human Rights that took place on October 28, 2014, also recently denied that there was ever a genocide in Guatemala and defended the state’s ability to apply a broad amnesty. The Inter-American Commission subsequently issued a statement expressing deep concern “about the authorities’ denial of genocide and the position” of the state “defend[ing] the application of amnesty to grave human rights violations, which is incompatible with the State’s international obligations.” The Commission described the state as “defian[t]” towards its human rights obligations.

Furthermore, following the recent and highly contentious appointment of new judges, there are concerns about whether there is adequate judicial independence – particularly at the appellate level – that threaten to undermine a legitimate process.

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