International Justice Monitor

A project of the Open Society Justice Initiative

Victims Seek to Revoke Immunity of Congressman Wanted for War Crimes

Congressman Edgar Justino Ovalle has spent the better part of 2016 under threat of criminal charges. Though he took his seat as a deputy in the Guatemalan National Congress on January 14, 2016, the Attorney General’s Office has not ceased in its efforts to prosecute him for war crimes.

Guatemala’s Attorney General, Thelma Aldana, made international headlines last year when she arrested then-President Otto Pérez Molina and a slew of other government officials for their involvement in alleged massive corruption schemes. She surprised again on January 6, 2016, when her office ordered the arrest of 18 high-ranking retired military officials for war crimes. These included individuals like Benedicto Lucas García, the former head of the army, whom most Guatemalans believed to be untouchable.

Aldana’s office also called upon the Supreme Court of Justice to revoke the parliamentary immunity of Ovalle, who was set to take his seat in the Guatemalan Congress just a week later. Ovalle is co-founder, along with several other former military officials, of the National Convergence Front party that brought current President Jimmy Morales to power last September. He is reported to be one of the president’s top advisors.

A court ruled in June that retired general Lucas García, along with seven other high-ranking military officials, should face trial in the so-called CREOMPAZ case. Since 2012, at least 558 bodies have been exhumed from the former Military Zone No. 21 (MZ21) in Cobán, Alta Verapaz. (Today the site is a UN peacekeeping training facility known as CREOMPAZ.) The other high-profile case involves the 1981 detention, torture, and sexual violation of Emma Molina Theissen, and the enforced disappearance of her 14-year old brother, Marco Antonio. On December 9, 2016, a court will determine whether five indicted officers will face trial.

To date, Ovalle has skillfully dodged his day in court. The Supreme Court rejected Aldana’s request to revoke Ovalle’s parliamentary immunity without entering into the merits of the facts. Hilda Pineda, the public prosecutor working the case, filed a protective measure (amparo) before the Constitutional Court. Pineda explained to the Court that her office was investigating a number of crimes in relation to the CREOMPAZ case, including several that occurred in 1983, when Ovalle was an intelligence and operations official at MZ21. Pineda said further that her office seeks to charge Ovalle with responsibility for the enforced disappearance of six individuals who were exhumed from MZ21 and who were positively identified using DNA. Twenty-nine other crimes have been identified by the Attorney General’s Office during Ovalle’s tenure at MZ21. These facts, Pineda argued, prove that there is sufficient cause to merit Ovalle’s impeachment.

The Constitutional Court accepted Pineda’s amparo and ordered the Supreme Court to review its decision. With one of the judges believed to be protecting Ovalle gone—he stepped down temporarily while under investigation on corruption charges—the Supreme Court backtracked on its earlier decision, ruling to initiate impeachment proceedings and appointing a judge to study the matter. The deadline for the judge’s decision has come and gone, prompting relatives of the victims yesterday to stage a protest outside of the Supreme Court building.

In the meantime, on September 29, 2016, Ovalle filed his own amparo before the Constitutional Court calling for the impeachment proceeding to be dismissed. Ovalle asserts that the decision to initiate his impeachment violates his rights to juridical certainty, effective judicial protection, due process, and the right to defense. He also claims that it violates his right to not be impeached on spurious or political charges. Ovalle also petitioned for the Foundation Against Terrorism, a right-wing organization that is staunchly opposed to war crimes prosecutions against military officials, to be incorporated as a civil party to the case. This was made public only recently when there was a public hearing in the matter.

“Revoke Ovalle’s Immunity Now!”

Yesterday, the relatives of the victims in the CREOMPAZ case, the majority of them Maya Q’eqchi’ from Alta Verapaz, staged a protest before the Supreme Court of Justice. Auraelena Farfán, a human rights advocate from FAMDEGUA whose brother is also among the missing, joined the protest in solidarity. They carried signs with a picture of Congressman Ovalle that read “Revoke Edgar Ovalle’s Immunity Now!” and presented a letter to the Supreme Court complaining that the judge who had been appointed by the Court to investigate the case against Ovalle had sought to have herself recused, causing undue delays in resolving the matter. The judge claimed that she had enmity with Ovalle’s lawyer, but Pineda clarified to La Hora that Ovalle changed lawyers with the intention of creating this conflict of interest. According to Héctor Reyes of the Center for Legal Action for Human Rights, which represents the victims in the CREOMPAZ case, in such instances, it is not the judge who should be recused from the case but the lawyer. The relatives called on the Court to immediately resolve this situation and to issue a decision based on an impartial review of the facts and according to the law.

According to the Attorney General’s Office,  between September 1, 1983 and January 31, 1984 Ovalle served as the second commander of MZ21. During this period numerous individuals were illegally detained, placed in clandestine jails, and later forcibly disappeared. “It is well known that since 2012 the remains of 558 individuals have been exhumed,” reads the families’ missive. “Of these, 138 have been identified as belonging to our families, and fortunately we have been able to given them a proper burial.”

In the midst of the protest, Judge Vitalina Orellana y Orellana informed the relatives of the victims that the Court had rejected the judge’s petition to excuse herself from the case. However, she did not state when a ruling would be handed down. In the meantime, Ovalle continues to enjoy the power and privileges of his congressional office.

Jo-Marie Burt is an associate professor of political science and director of Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA).  This report was prepared with the assistance of Paulo Estrada, human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.

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