International Justice Monitor

A project of the Open Society Justice Initiative

Guatemala Transitional Justice Update: Judges Continue to Challenge Threats to Judicial Independence


  • The constitutional court provisionally suspended the transfer of judges, in a divided ruling, following complaints by two judges that they were being transferred to distant jurisdictions as retaliation for their calls for judicial independence.
  • Judges and advocates testified last week concerning threats to judicial independence before the Inter-American Commission on Human Rights. Three supreme court judges responded, defending their actions and their election as legitimate.
  • Guatemala’s bar association suspended Rios Montt’s lawyer for his conduct inside and outside of the courtroom during the genocide trial.
  • An appellate court confirmed the recusal of Judge Jeannette Valdes, who had been assigned to the three-judge trial court to rehear the Rios Montt genocide trial. No judge has been assigned to replace her, leaving the prospects for any new trial in limbo.
  • Judge Yassmin Barrios, who has faced numerous retaliatory actions following her court’s conviction of Rios Montt in 2013, faces a new challenge as an organization sought to refile criminal charges against her for her actions during the genocide trial.

Constitutional Court Suspends Transfer of Judges; Inter-American Commission on Human Rights Hears of Threats to Judicial Independence

On March 19, Guatemala’s constitutional court, in a divided ruling, provisionally suspended the transfer of Judges Patricia Gamez and Jennie Molina. The judges had presented a constitutional challenge after the supreme court transferred them to remote jurisdictions without any stated justification. Two judges, Héctor Pérez Aguilera and Roberto Molina Barreto, dissented.

The two judges who were ordered transferred had supported an appellate court judge, Claudia Escobar, who resigned and reported irregularities and corruption in the nomination process of new supreme and appellate court judges. They called this transfer action retaliation for their calls for the protection of judicial independence.

On the day of the constitutional court judgment, the Inter-American Commission on Human Rights also heard testimony concerning this issue.  Judge Escobar, Helen Mack of the Myrna Mack Foundation, and Mirte Postema of the Due Process of Law Foundation testified concerning the irregularities in the 2014 judicial nomination process and the allegedly retaliatory actions taken against judges following the conclusion of the nomination process.

Representing the state of Guatemala, supreme court judges Antonio Pineda, Vitalina Orallana, and Delia Davila denied the allegations and affirmed that the nominations and the recent transfers were executed legally and with justification.

James Cavallaro, a vice president of the commission and its special rapporteur for Guatemala, qualified the recent changes of jurisdictions of judges as “hardly regular” and the other commissioners recalled how in various cases in Latin America, transfers were used to apply pressure on judicial actors. Cavallero also described the tape recording provided by Judge Escobar – of a proposed tit-for-tat in which Judge Escobar’s nomination would be confirmed in exchange for her vote in favor of the vice president on a case before the judge – as a “very clear” example of corruption.

Guatemalan Bar Association Suspends Rios Montt’s Lawyer

A week after the constitutional court annulled sanctions imposed by the Guatemalan lawyers association against Judge Yassmin Barrios, who convicted former dictator Efrain Rios Montt of genocide, the ethics tribunal of the lawyers association suspended Rios Montt’s defense attorney, Francisco Garcia Gudiel.

In response to a May 16, 2013 complaint lodged by Ramon Cadena, the director of the International Commission of Jurist (ICJ) regional office, the bar association suspended García Gudiel for one year, finding him in violating of the ethics code. The tribunal found that he lacked respect in addressing the tribunal, offending the honor and prestige of the judges and the credibility of the justice system. The tribunal also fined him (US$ 660) and ordered a public reprimand. The bar association condemned García Gudiel’s “malicious” strategy, as he accepted to defend Rios Montt with the knowledge that this would create grounds for recusal of the tribunal, in violation of the law (Art. 201 of Law of Judicial Organism).

Cadena had argued that Garcia Gudiel violated the ethics code during the hearings and in media declarations. In one instance, Garcia Gudiel referred to the judges as “puppets” and “delinquents.” He insulted Presiding Judge Yassmin Barrios, declaring that he “gets nauseous just seeing her.” Garcia Gudiel asserted that there are no grounds to sanction him as he had not caused damage.

Cadena described the decision as an important precedent against malicious practices that undermine judicial independence.

Vernon Gonzalez Portillo, attorney for the governing political party, was also sanctioned last week by the bar association following a complaint lodged by a company that he represented. The bar association found that he improperly caused a judge to name him a trustee of his client’s funds. Gonzalez Portillo also represented the vice president and was implicated in alleged corruption of the judicial nomination process: in a tape recording, he offered to facilitate Judge Escobar’s appointment to the bench if she ruled in favor of the vice president in a case before her.

Both lawyers may appeal to the assembly of professional associations.

Appellate Court Confirms Judge Jeannette Valdes Will Not Hear New Genocide Trial

Following the constitutional court’s May 2013 annulment of the guilty verdict in the Ríos Montt genocide trial, many obstacles have prevented any new trial. Among them, a January 5, 2015 commencement of a new trial was suspended after the majority of the court accepted a recusal action presented the week before by Rios Montt’s defense against Presiding Judge Jeannette Valdes. On March 19, the appellate court confirmed Judge Valdes’ recusal. No judge has yet been appointed to replace Judge Valdes.

Rios Montt’s defense had argued that Judge Valdes was biased as a result of her 2004 academic thesis, “Criteria to Improve the Application of the Crime of Genocide.” The civil parties in the case – Center for Human Rights Legal Action (CALDH) and the Association for Justice and Reconciliation (AJR) – appealed her recusal on the ground that the thesis was academic; the recusal decision was insufficiently justified; and the defense’s challenge was presented outside the five-day period provided for in the law, coming many months after Judge Valdes was named to the court.

The appellate court confirmed the recusal on the ground that the thesis constituted a prior opinion that could influence her impartiality. The appellate court found that the defense’s delay in filing the challenge – on the last working day before the presumed beginning of the trial – was justifiable because the defense could have discovered Judge Valdes’ thesis only belatedly, despite numerous newspaper articles presented as evidence.

Legal Harassment Continues Against Judge Who Convicted Rios Montt

On March 11, the “Liga Pro-Patria” (Patriotic League), a far-right organization, filed a case challenging Judge Barrios’ immunity and seeking to charge her for crimes allegedly committed during the 2013 genocide trial of Ríos Montt. The Patriotic League seeks to prosecute her for coercion, abuse of authority, and breach of duties. The day before, the constitutional court had rejected sanctions imposed on Judge Barrios by the bar association; and in 2014, the supreme court rejected the same action presented by the Patriotic League as lacking sufficient evidence.

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