A Rios Montt Retrial in January?

On December 8, Guatemala’s Constitutional Court ordered the retrial of Efrain Rios Montt and Mauricio Rodriguez Sanchez to commence on January 11, 2016.  However, there have been repeated delays in the rehearing of the genocide case, and three major uncertainties could lead to further deferral of the proceedings against the former dictator and his former chief of military intelligence.

Rios Montt and Rodriguez Sanchez were first tried in 2013 on charges of genocide and crimes against humanity related to the deaths of 1,771 Mayan Ixiles between March 1982 and August 1983. More than 100 witnesses testified in the historic trial―the first domestic prosecution of a former head of state for genocide. A first-instance high-risk court convicted Rios Montt and sentenced him to 80 years in prison for his role in the death, rape, torture, and forced displacement of thousands of indigenous people in the Ixil region during his rule. The court acquitted his co-accused, Rodriguez Sanchez, on all charges. Ten days later, by majority decision, the Constitutional Court overruled the verdict on technicalities and ordered a retrial.

That retrial has faced a series of delays.  It was first planned to start on January 5, 2015, but was suspended the same day after the majority of a different high-risk trial court accepted a recusal motion lodged by Rios Montt’s defense attorneys against the court’s president, Judge Jeannette Valdes, on allegations of bias. In 2004, Judge Valdes wrote an academic thesis called Criteria to Improve the Application of the Crime of Genocide, which, according to defense attorneys and the majority of the court, amounted to a pre-formed opinion on the case. The motion had been filed on the eve of the trial’s start, fourteen months after the court had been constituted and the identities of the judges known. Although the Attorney General’s Office and civil parties argued that the action was nothing more than an abusive delaying tactic, the high-risk appellate court confirmed Judge Valdes’ separation from the case and, on April 9, appointed Judge Delmar Gonzalez to replace her.

The newly constituted three-judge panel set the opening of the retrial for July 23, 2015. But on that day, the opening of the trial was once again delayed, as Rios Montt’s defense attorneys alleged that their client no longer had the mental capacities to understand the charges against him, and was thus unfit to face trial. Before going any further, the court ordered Rios Montt to undergo psychiatric evaluation to determine his fitness for trial.

Experts presented their evaluations to the court on August 18. All agreed that the once-intimidating former army general was suffering from irreversible vascular dementia that would continue to worsen.  Accordingly, on August 25, the high-risk court declared Rios Montt unfit for trial. Nevertheless, a majority of the court ruled that a joint retrial of the accused could proceed and scheduled it for January 11, 2016. The chamber determined that due to Rios Montt’s poor health, special procedures would apply that are usually reserved for individuals who pose a threat to society.  Under these procedures, the court would appoint a guardian to direct the defense; the trial would be held behind closed doors; victims would be allowed to attend the hearings, but there would be no access for media or observers; and a finding of guilt could not result in criminal sanction, but only “security measures,” such as admission to a psychiatric institution.

This decision by the court prompted appeals from Rios Montt’s defense and civil parties to the case. Jaime Hernandez, Rios Montt’s defense counsel, argued that the trial court’s order was incompatible with the finding that his client was unfit to stand trial. The two civil parties in the case―the Association for Justice and Reconciliation (AJR) and the Center for Human Rights Legal Action (CALDH)―challenged the court’s determination that both co-accused should be tried behind closed doors, even though Rodriguez Sanchez’s fitness for trial had never come into doubt. The high-risk appeals chamber accepted this argument in a ruling on October 15, provisionally suspending the trial because the trial court’s decision not to split the cases could infringe fundamental rights to due process, and victims’ right of access to justice and effective judicial protection.

In its decision last week, the Constitutional Court rejected both the defense and civil party appeals.  In dismissing the defense objection, the court found that the first-instance court had properly applied Guatemalan criminal procedural law, which foresees trials under the application of special procedures.  The Constitutional Court also overruled the appellate court and reaffirmed the order of the first-instance court that Rodriguez Sanchez should be retried together with Rios Montt, out of public view. With this, it confirmed that the retrial should commence next month.

Yet three sources of uncertainty persist, any one of which could lead to continued delays and possibly the ultimate derailment of the retrial.

First, the high-risk appeals chamber must still resolve the question of whether the proceedings should be public.  The Constitutional Court’s decision to annul the suspension only applies to the appellate court’s provisional decision on this issue. Indeed, on October 15, the appeals court only provisionally accepted the arguments presented by the civil parties, which insisted on the importance of a public trial not only for defendant Rodriguez Sanchez and the victims, but also for Guatemala’s population and the international community, both affected by the gravity of the alleged crimes. The appeals chamber thus opened the door for separate retrials of Rios Montt and Rodriguez Sanchez in order for the latter’s trial to be accessible to public, but has not yet definitely decided on the matter.

Second, beyond the question of a public trial, there are further fundamental disagreements about what form the proceedings should take.  Rios Montt’s attorneys contend that their client cannot face trial, and that the high-risk court should convene on January 11, 2016 merely to decide on security measures to be applied to their client, without any witnesses being heard.  By contrast, Hector Reyes, counsel for CALDH, argues that security measures can only be applied if Rios Montt’s responsibility for the commission of crimes has been established, which requires the court to hear all of the evidence before coming to any decision on security measures. Indeed, civil parties are planning to seek clarification from the Constitutional Court about how the proceedings should be conducted.

And third, there remain knotty legal questions about the retrial of Rodriguez Sanchez.  His defense team will continue to try to prevent any new trial against him. During a September 1 hearing before the high-risk trial court, held at the request of the Rodriguez Sanchez defense, his counsel argued that a new trial would amount to double jeopardy because the 2013 trial based on the same facts had already resulted in his acquittal.

The trial court’s decision on this third issue could have a major impact on the whole case. If it accepts the argument of Rodriguez Sanchez’s defense, the court would be acknowledging the validity of the first sentence rendered on May 10, 2013, according to which Rios Montt was found guilty. It is unclear whether the chamber has the authority to make such a determination, however, because recognizing the 2013 verdict would entail ruling against the Constitutional Court―the country’s highest judicial authority―which had nullified the first trial.

Over thirty years since the underlying crimes occurred, it remains to be seen if a definitive trial against the country’s former leadership will happen at all. Whether and how the judiciary ultimately resolves the question will have profound effects on aging Ixile victims who have spent much of their lives seeking justice, as well as the octogenarian defendants, whose backers insist on a much different version of Guatemala’s past.

Whether this retrial proceeds along with other pending trials for grave conflict-related crimes may also have a profound impact on younger generations of Guatemalans confronted by these starkly divergent narratives.  Twenty years after the war’s end, losing this opportunity to judicially probe polarized notions of the past could leave a greater vacuum for the perpetuation of Guatemala’s divisions.  By contrast, a court’s rigorous examination of contested facts about the conflict and individual criminal responsibility could contribute to a shared understanding of the country’s history.

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