On Thursday, March 2, Judge Víctor Herrara Ríos of High Risk Court C is scheduled to determine whether five high-ranking military officers will stand trial for the illegal detention, torture, and sexual violation of political activist Emma Molina Theissen and the revenge kidnapping of her 14-year-old brother Marco Antonio.
The five officers, all retired, include two heavily decorated generals who were believed to be untouchable: Benedicto Lucas García, former head of the Guatemalan army, and Manuel Callejas y Callejas, former head of military intelligence. Callejas y Callejas later became notorious for his alleged role in organized crime; in 2003, the United States revoked his visa due to concerns over his involvement in drug trafficking and other illegal activities.
The other three officials are: Francisco Luis Gordillo Martínez, former commander of the Military Zone No. 17 where Emma was detained in Quetzaltenango in 1981; Edilberto Letona Linares, former second commander of Military Zone No. 17 in 1981; Hugo Ramiro Zaldaña Rojas, former “S-2” intelligence official of the Chief of Staff in 1981.
Four of the officials were arrested on relation to the Molina Theissen case on January 6, 2016. Fourteen others, including Lucas García, were arrested in relation to the CREOMPAZ enforced disappearance case. The arrests shook the incoming administration of President Jimmy Morales, who was set to take power a week later. Several of the officers were active members of the National Convergence Front, the party that helped to get Morales elected in September 2016, and a few of them were rumored to be slated for cabinet positions in his government.
Erick de León, the public prosecutor representing the Attorney General’s office, started to make his case for the indictments of the five suspects on January 13, 2017. De León presented the charges and evidence against two of the accused, Zaldaña Rojas and Gordillo Martínez on this day.
De León finalized his presentation on February 7, followed by Alejandro Rodríguez, the lawyer for the Molina Theissen family. The defense lawyers then took turns presenting their final arguments over the course of February 8-10.
As in previous hearings, the ambiance in the courtroom was tense, with verbal attacks by family members of the defendants insulting the victims, observers, and member of the press. At the conclusion of the presentations, Judge Herrera asked for several days to review the information presented before emitting his final determination, which is scheduled for tomorrow.
The Attorney General’s Office Finalizes its Arguments
At the February 7 hearing, de León continued his presentation, outlining the charges and evidence against the remaining three defendants, Edilberto Letona Linares, Manuel Antonio Callejas y Callejas, and Benedicto Lucas García. De León affirmed that the High Command of the Guatemalan Army was aware of the events in question, tolerated what happened, and did not punish the officers who abused Emma Molina Theissen. He also asserted that the High Command gave the order to kidnap Marco Antonio, with the intention of offering to release him in exchange for Emma.
De León highlighted the flow of information between intelligence officials, emphasizing the relationship between Zaldaña and Callejas y Callejas and the hierarchical nature of the chain of command by which Zaldaña had to have notified his superiors, and they would have had to notify their superiors, up to the head of the Guatemalan army.
Regarding the sexual violation charges, de León called upon the judge to keep in mind that the defendants were public officials and that their actions were carried out within the framework of the counterinsurgency strategy developed by the High Command. He also said it was important to remember that their actions were not isolated acts but rather military tactics that were used throughout the country. Based on the concept of intellectual authorship (autoría mediata), he stated, the accused are criminally responsible for the crimes committed against Emma and Marco Antonio Molina Theissen because it was their subordinates who committed the crimes based on orders emitted by the High Command.
De León continued with specific charges against the three remaining defendants. He stated that Letona Linares, the second commander of MZ17 who, at the time of the events, was the acting commander of the military base, was responsible for overseeing the completion of the orders of his superiors and informing his superiors to that effect. According to the normal procedures of the Guatemalan army, he was required to prepare a report of new events to the commander of MZ17. Through this report, Gordillo Martínez would have learned of the detention, and later escape, of Emma Molina Theissen from MZ17.
De León asserted that the Callejas y Callejas was informed of the facts of the case through intelligence channels and that it would have been his function to advise the head of the Chief of Staff to order a special intelligence operation to recapture Emma. This operation, he said, resulted in the kidnapping of Marco Antonio from the Molina Theissen family home.
The Civil Parties
On February 8, Alejandro Rodríguez, counsel for the Molina Theissen family, gave his final presentation. Rodríguez expressed his agreement with the charges against the five defendants presented by the Attorney General’s Office. He insisted on the importance of the jurisprudence of the Inter-American Court for Human Rights, including the 2004 ruling in this case, in which the court found that Guatemala was responsible for the enforced disappearance of Marco Antonio Molina Theissen and called for a series of economic and symbolic reparations. Rodríguez also called upon the court to take measures to ensure that none of the parties engage in behavior that could be offensive to the Molina Theissen family or to the observers in the proceedings.
A “Rude Defense”
During the remaining sessions, the defense lawyers representing the accused presented their arguments in turn. They denied the facts of the case, questioned the responsibility of their clients for the alleged crimes, and called upon the judge to dismiss the charges against their clients. They claimed that the Attorney General’s Office had either failed to demonstrate the veracity of the charges or suggested that it was motivated by political rather than legal considerations in bringing charges against their clients.
Defense lawyers questioned the validity of the expert witnesses and asserted that the documents that were found at the home of Gordillo Martínez at the time of his arrest, which have been presented by the Attorney General’s Office as evidence in the case, have been tampered with and challenged their validity. They unanimously attacked the Inter-American Court for Human Rights and urged the judge not to take its rulings into account.
The defense attorneys also questioned the veracity of the testimony presented by Emma Molina Theissen, who says she was illegally detained, tortured, and subjected to repeated sexual violence while she was detained in MZ17 until she managed to escape several days later. Some of them claimed she was never arrested, while others claimed that she was an armed combatant.
They also questioned the veracity of the family’s claims that Marco Antonio Molina Theissen had been forcibly disappeared by government forces. One of the lawyers claimed that Marco Antonio is alive and living in hiding, while another asserted that he had been disappeared by the guerrilla in reprisal for Emma’s supposed collaboration with the army.
Several of the defense lawyers resorted to crude language and comments about the victims, especially regarding the allegations of sexual violation of Emma Molina Theissen. At one point, Judge Herrera Ríos questioned one of the defense lawyers for presenting a “rude defense” rather than a “technical” one.
Key Arguments Presented by the Defense Lawyers
The first defense lawyer to present his arguments was Alejandro Arriaza, who represents Francisco Luis Gordillo Martínez, commmander of Military Zone 17. Arriaza aggressively argued that there is insufficient evidence to send his client to trial and called upon the court to dismiss the charges. Arriaza asserted that the accusation presented by the Attorney General’s Office was “a creation” of former Attorney General Claudia Paz y Paz and said that it lacked objectivity and contained “a thousand mistakes.” He claimed that the key evidence presented by the Attorney General’s Office is illegal, including the preliminary testimony of Emma Molina Theissen and the testimony of two protected witnesses, both former military officials. He argued that it was impossible that Emma had escaped from Military Zone No. 17 on her own.
Judge Herrera rebuked Arriaza not only for his at times menacing tone, but also for his tendency to attack the individual parties to the proceedings rather than present logical arguments in defense of his client. “A defense can be based on technical considerations, or it can be based on crude arguments. Yours is based on crude arguments,” said the judge.
Waldemar Leonardo Figueroa, who represents Zaldaña Rojas, spoke next. He urged the judge to keep in mind his independence as a member of the Guatemalan judiciary and called upon him to discount from consideration the decisions of the Inter-American Court for Human Rights and other international treaties when making his determination in this case. He said that his client had an “exemplary” curriculum and was on leave from MZ17 during the days Emma was allegedly in custody there.
Julio Anaya Cardona, lawyer for Manuel Callejas y Callejas, stated that while his client advised the officers who organized the operation to recapture Emma, he as not was in charge of the operation, nor did he order the forced disappearance of Marco Antonio. Like the other defense lawyers, he questioned the veracity of Emma’s claims to have been sexually violated while in custody at MZ17 not by presenting any clear evidence to the contrary, but offering pseudo psychological profile of victims of sexual violence and impugning Emma’s character as a woman and as a mother:
I believe that a woman who has suffered [sexual violated] cannot forget that experience in a short time and then remarry. Such women end up hating men their entire lives. But [Emma] has a daughter who was born shortly after the alleged events. Is this daughter the result of another sexual violation? Because that is one way to do it.
Jorge Lucas Cerca, the son and lawyer of Benedicto Lucas García, gave an elaborate PowerPoint presentation that sought to outline the personal relationships of Emma and her partner Julio César del Valle Cobar. Both were militants of the Revolutionary Armed Forces (FAR), he stated, and therefore they were not civilians but rather armed combatants. Both were detained in 1976, and both were found with weapons. He said that Emma “is not a peaceful person,” and accused her of having a “death fetish.” Lucas Cerca affirmed that militants of the FAR were not revolutionaries but assassins for hire.
Lucas Cerna also asserted, without offering any evidence, that Marco Antonio is not disappeared and that the Molina Theissen family knows where he is living.
Finally, Lucas Cerna challenged the theory of intellectual authorship presented by the Attorney General’s Office. The High Command of the Guatemalan Army, of which his client Benedicto Lucas García was the chief, was an advisory and consultative body only and did not have the capacity to emit orders. He asserted that giving orders was the responsibility of the Ministry of Defense.
Lucas Cerna therefore called upon the court to dismiss the charges against his client. He also called upon the court to withdraw the civil party status querellante adhesivo of the Molina Theissen family. Finally, he stated that when his client is acquitted, he will request reparation for his client in the amount of three million quetzales.
Lucas Cerna also attacked the Inter-American Court for Human Rights, saying that it acted “abusively” in its ruling in favor of the Molina Theissen family. He accused the court of violating due process guarantees, the presumption of innocence, and the principle of legality.
It should be noted that the Inter-American Court does not rule on the responsibility of individuals, but of states. The state of Guatemala recognized the facts of the case, and in 2004, the Inter-American Court found Guatemala responsible for the enforced disappearance of Marco Antonio Molina Theissen.
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). 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.