Prosecutor Lays Out Case Against Former Military Officials in Sexual Violence, Torture, and Enforced Disappearance Case

On January 13, 2017, a full year after four military officials were arrested in relation to the Molina Theissen case, High Risk Court C in Guatemala initiated hearings in the final phase of the pre-trial proceedings.  Last Friday’s hearing was set to determine whether the four military officials, along with former army chief Benedicto Lucas García, will face trial for the illegal detention, torture and sexual violence of Emma Guadalupe Molina Theissen and the enforced disappearance of her 14-year-old brother Marco Antonio. It was initially scheduled in early December and was twice postponed, presumably because the presiding judge, Judge Víctor Herrera Ríos, had scheduling conflicts.

The defense lawyers representing the five retired military officers engaged in numerous delay tactics, as they have in past sessions. They sought permission from the judge for their clients to be absent from this and future hearings, alleging security and health concerns. The judge dismissed the security concerns as unfounded and ordered an expert medical examination of the defendants for the next hearing. Public prosecutor Erick de León continued with the presentation of the charges and the evidence he will present to demonstrate his case to the court. After about three and half hours, the judge suspended the hearing and called for its continuation on January 30 and 31.

Tensions Before and During the Hearing

As in previous hearings, several individuals and military officials standing outside the court building in downtown Guatemala City engaged in verbal attacks of the victims and the human rights organizations supporting them. They placed signs alluding to building peace, but using bullhorns and microphones, they continually shouted out insults and attacks against the Molina Theissen family, calling them “parasites” who had received millions of dollars in reparations and referring to the case as “Caso Mentira Theissen” (Theissen case of lies). They also attacked the international observers from the United Nations and other entities who regularly attend the hearings, saying “we want tourists not terrorists” and “the [foreigners] are the idiots who finance terrorism.”

The hearings have been taking place in a room inside the court building that is too small to accommodate the public. The civil parties requested a larger room, but judicial officials failed to respond to the request. Therefore, the hearing took place in the same small room. The police officers stationed outside the room allowed three family members for each defendant to enter the room and directed them to sit on the same side of the room where the plaintiffs are seated. The relatives of the Molina Theissen family and national and international observers were instructed to sit on the other side of the room, where the defendants are seated in a small cage-like structure, with their lawyers sitting at a table in front of them.

María Eugenia Molina Theissen, the sister of Emma and Marco Antonio, told International Justice (IJ) Monitor that those accompanying the plaintiffs should be allowed to sit on the side of the room where they are seated, rather than being so close to the defendants and their lawyers, which makes them more vulnerable to verbal and other forms of intimidation. Having the families of the defendants so close to the plaintiffs also subjects them to intimidation. We have observed this in prior hearings, and during Friday’s hearing, we saw more of the same.

For example, during the hearing, the family members of the defendants made gestures and whispered negative comments when public prosecutor Erick de León and Molina Theissen family lawyer Dr. Alejandro Rodríguez spoke. Lucas García’s wife, María Elena Winter Flohr de Lucas, known as Nana Winter, came in and out of the room, claiming health problems, and often whispering under her breath, “Parasites, that’s what they are, parasites!”

The Hearing: Defense Delay Tactics

The hearing began an hour after scheduled, at 9:00 a.m. After confirming the presence of all the parties, Jorge Lucas Cerna, who represents his father, Benedicto Lucas García, asked the judge to incorporate Yerli Alejandra Ortíz Álvarado as co-counsel. Ortíz Álvarado represents retired military officials José Antonio Vásquez García and Pablo Roberto Saucedo Merida in the CREOMPAZ case. (Vásquez García will face trial in the CREOMPAZ case, along with Lucas García, while charges against Saucedo Merida were dropped.)

Alejandro Arriaza, counsel for Luis Francisco Gordillo Martínez, called on the judge to instruct public prosecutor Erick de León to be concrete and specific in the presentation of his arguments and that he not be allowed to read the charges. He also asked permission for his client to stop attending this and future hearings, alleging health problems and security concerns. Arriaza claimed that some members of the public were harassing his client and claimed this jeopardized his security.

The lawyers for the other defendants stated their adhesion to both requests, adding that the bad weather, the health conditions of the defendants, their advanced age, the process of being transferred from prison to the hearings, and being at the hearings, was a danger to their health. Government prosecutor de León urged the judge to follow the procedures outlined by the law and called for a medical expert to evaluate the defendants’ medical condition to avoid further delays. Civil party lawyer Alejandro Rodríguez agreed with the prosecutor’s position.

Judge Herrera Ríos rejected the motion presented by the defense requesting that their clients be absent from hearings, stating that this stage of the process required the presence of the defendants. However, he did agree that it would be important to have the defendants undergo a medical evaluation and ordered the National Institute of Forensic Sciences (INACIF) to evaluate the health of the defendants and to inform the court of their findings at the next hearing.

Arriaza appealed the judge’s decision, saying that it violated the defendant’s right to security and the Senior Citizens Law, which provides special protections for the elderly. He also asserted that in previous sessions, the press behaved aggressively toward his client and called upon the judge to accept his request immediately. The other lawyers agreed. Lucas Cerna added that it was the judge’s duty to guarantee the human rights of the defendants and to uphold the law and international treaties “correctly,” implying that the use of international law by the plaintiffs was incorrect. Lucas Cerna also launched an attack on the press:

I don’t understand the objection of the Attorney General’s Office and the civil party lawyer. Or maybe they want to continue this show before a bunch of cameras. And take note, señor Judge, these are not legally accredited press. They are not Prensa Libre, Diario El Gráfico, although they no longer exist, I’m not promoting them but they are recognized press. Noti7, Telediario, Canal Antigua, where are they? I don’t know if one of them might shout out, ‘allahu akbar’ (Allah is great) and all of us here would be blown to bits, because there is no control, anyone could bring an ID badge and claim to be a member of the press and they [let him or her in]. This, señor Judge, is a matter of the security and health of our clients.

Lucas Cerna was referring to independent media outlets, like IJ Monitor, that regularly cover proceedings in the Molina Theissen case. Mainstream media outlets referred to by Lucas Cerna rarely cover this type of hearing. Moreover, it is interesting to note that the owner of Noti7 and Telediario, Ángel González, and Canal Antigua, Erick Archila Dehesa, are fugitives and wanted on corruption charges. Also, Archila Dehesa is the nephew of retired colonel Raúl Dehesa Oliva, who is awaiting trial, along with Lucas García, in the CREOMPAZ case.

The judge rejected the appeal, stating that there was no evidence of a security concern as outlined by the defense attorneys and that it is necessary to wait for the findings of the medical expert from INACIF to determine whether the defendants should be allowed to be absent from the hearings due to health concerns. The judge then instructed public prosecutor Erick de León to begin with his summary presentation of the charges against the five defendants.

Public Prosecutor Presents Charges and Evidence against the Five Military Officers

De León outlined the charges presented on April 8, 2016 against the initial four defendants:

  • Luis Francisco Gordillo Martínez and Edilberto Letona Linares were charged with crimes against humanity against Emma Guadalupe Molina Theissen;
  • Hugo Ramiro Zaldaña Rojas was charged with crimes against humanity against Emma Guadalupe Molina Theissen and for the crime of the enforced disappearance of Marco Antonio Molina Theissen; and
  • Manuel Antonio Callejas y Callejas was charged for the crime of the enforced disappearance of Marco Antonio Molina Theissen.

He then outlined the charges presented on November 25, 2016 against the initial four defendants and new charges against Benedicto Lucas Garía:

  • Gordillo Martínez, Letona Linares, and Zaldaña Rojas were charged with the crime of aggravated sexual assault against Emma Guadalupe Molina Theissen;
  • Callejas y Callejas was charged with crimes against humanity and aggravated assault against Emma Guadalupe Molina Theissen; and
  • Manuel Benedicto Lucas García was charged with crimes against humanity and aggravated assault against Emma Guadalupe Molina Theissen and for the crime of the enforced disappearance of Marco Antonio Molina Theissen.

(The charges were accepted by Judge Herrera Ríos in October, and they were formally filed on November).

De León then begin outlining the evidence that the Attorney General’s Office will be presenting to sustain the charges. He first referred to the background and context in which the events took place, that is, during the internal armed conflict. He said he would draw upon the reports of the Inter-American Commission of Human Rights (IACHR) from 1981, 1983, and 1984, as well as an expert report on the historical context that describes the role of military intelligence, highlights the methods and procedures used to apply torture and enforced disappearances, and the use of clandestine detention centers. He referred to other supporting evidence, including a military expert report, official military documents, the final reports of the Historical Clarification Commission and the Recovery of Historical Memory Project (REMHI), and the 1996 Peace Accords.

De León outlined the actions or omissions that each of the accused is allegedly responsible for as a function of their positions as military officers, and which led to the institutionalization of a series of criminal practices. This includes illegal detentions, captivity and concealment of persons, interrogations under torture, illegal searches, sexual violence particularly against women, as in the case of Emma Molina Theissen, and the use of military facilities as clandestine detention centers, such as occurred with Military Zone 17 (MZ17), where Emma was detained, interrogated, tortured, and sexually violated.

In addition, de León stated that he would present an expert report on archives, official documents from the National Police Historical Archive (AHPN), statements of members of the Molina Theissen family, and the 2004 ruling of the Inter-American Court for Human Rights, which establishes that the Molina Theissen family was persecuted, repressed, and attacked during the internal armed conflict and was eventually forced into exile in Costa Rica, where they remain to this day.

Defense lawyer Alejandro Arriaza filed a protest, saying that the public prosecutor was not allowed to read the charges. The judge ruled that given the complexity of the case, de León could read parts of the charges. Arriaza switched tactics, motioning to Miguel Mörth, a German lawyer who has lived in Guatemala for more than 20 years and currently works for the Human Rights Law Firm (Bufete Jurídico de Derechos Humanos), saying that Mörth was making gestures at the defendants that he found intimidating. Judge Herrera Ríos urged Arriaza to focus on the motion he was presenting, reminded him that the public is allowed by law to be present in hearings, and said it is necessary to show respect to all those present in the courtroom. Meanwhile, Julio Antonio Anaya Cardona, counsel for Callejas y Callejas, filed a motion for procedural violations because de León had read the charges. The judge rejected the motion, saying that it lacked merit.

De León continued, outlining the evidence he would be presenting to demonstrate the actions or omissions committed by the different military officers, starting with Zaldaña Rojas. He stated that he would present official documents that demonstrate that Zaldaña Rojas was an “S2” intelligence officer in MZ17 during the time the crimes in question took place. He also mentioned the testimony of Emma Molina Theissen, who identified Zaldaña Rojas as the person who received her when she was brought to MZ17.

The prosecutor made reference to documents that were seized from the residence of defendant Gordillo Martínez. One of these, dated August 1981, confirms that the then chief of the High Command of the Guatemalan Army ordered the implementation of roadblocks as part of the counterinsurgency strategy to detain suspected subversives. A second document, dated April 1981, confirms that Gordillo was commander of MZ17 and that Callejas y Callejas, the head of military intelligence, ordered the construction of rooms within MZ17 to conduct interrogations for the intelligence section.

De León also referred to a military expert report, which he said confirms the use of counter-subversive war manuals that established reporting procedures to the commander and second commander of MZ17 and helps establish the military structure and chain of command. The report also refers to Plan Victoria 82, a military plan that outlines the treatment of documents seized by so-called “internal enemies.” Emma Molina Theissen was carrying documents related to the Guatemalan Workers Party (PGT); presumably because of the importance of these documents, they were transferred to the Directorate of Intelligence, led by Callejas y Callejas, for review.

The prosecutor referred to the sexual violence suffered by Emma Molina Theissen while in custody at MZ17. The evidence consists of Emma’s direct testimony, the testimony of other witnesses who saw her while in custody, and an expert report about sexual violence against women in custody during the internal armed conflict.

As for the crime of enforced disappearance against Marco Antonio Molina Theissen, de León asserted that as an intelligence officer, Zaldaña Rojas had to report the escape of Emma Molina Theissen, which led to the planning of a Special Intelligence Operation (Operación Especial de Inteligencia). This was a clandestine, illegal operation with the specific objective, in collusion with the Intelligence Directorate, to recapture Emma. Upon arrival to Emma’s home and not finding her, the officials illegally captured her 14-year-old brother, Marco Antonio, who has not been seen since. This fact was recognized by the State of Guatemala before the Inter-American Commission of Human Rights.

Additional evidence to be presented includes the eyewitness testimony of Emma Theissen Alvarez de Molina, Marco Antonio’s mother, who was present when her son was taken away by the military. Others who may be called to testify include the family’s maid; Emma’s sister,  María Eugiena Molina Theissen; a former military officer; and a protected witness, among others.

According to de León, several documents will be presented to establish that Gordillo Martínez was the commander of MZ17 when the crimes occurred and that he ordered the implementation of road blocks to detain presumed subversives. Evidence will be presented, he said, of at least four other individuals who were illegally detained in MZ17 and later disappeared during Gordillo’s period as commander of the military base. De León said that evidence will be presented showing that Gordillo knew about the detention of Emma Molina Theissen because he received daily reports of activities and events by the MZ17 second commander, Letona Linares, and it was his responsibility to give orders in response to these activities and events.

Judge Herrera Ríos declared an end to the hearing at 12:30 p.m. As the public vacated the room, Zaldaña Rojas’s wife shouted at the members of the press, saying “take all the pictures of me that you want, your spells have no affect on me.” She then commented on the judge, saying “I wonder what the judge smoked today, probably some cheap stuff, because he was spouting stupidities.”

The next hearings in the case will take place on January 30 and 31.

Jo-Marie Burt is an associate professor of political science and Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). She is an expert on human rights, transitional justice, and war crimes prosecutions in Latin America. 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.