Tied Up in Appeals, CREOMPAZ Enforced Disappearance Case Remains Stalled

More than a year since a judge determined that there is sufficient evidence to send eight retired senior military officials to public trial in the CREOMPAZ enforced disappearance case, the proceedings remain tied up in a series of appeals and other legal motions. Victims’ organizations have told International Justice (IJ) Monitor that they are concerned that the delays in resolving these appeals may be intentional.

CREOMPAZ is a training site for UN peacekeeping operations located in Cobán, Alta Verapaz. During Guatemala’s internal armed conflict, the site was a military base, Military Zone No. 21 (MZ21), at the center of military coordination and intelligence. Since 2012, investigators from the Attorney General’s Office and the Forensic Anthropology Foundation of Guatemala (FAFG) have exhumed 565 bodies from 85 graves located within the confines of the military base. Of these, 143 have been identified through DNA tests as victims of the internal armed conflict who died between 1981 and 1987. Fourteen military officers were arrested on January 6, 2016 in relation to the case, which Guatemalan Attorney General Thelma Aldana has described as one of the largest cases of enforced disappearance in Latin America.

On June 7, 2016, Judge Claudette Domínguez ruled that eight retired officers, including former army chief Benedicto Lucas García, must face public trial. The judge determined that one of the accused, who suffers from mental incapacity, should face trial under special provisions, which includes closed-door proceedings and precludes the possibility of punishment if he is found guilty. Finally, the judge dismissed charges against two of the defendants. (For details, see Eight Military Officers to Stand Trial in CREOMPAZ Grave Crimes Case.)

While many hailed the decision as a significant step forward for transitional justice efforts in Guatemala, it also stirred controversy.  Plaintiffs objected to the judge’s exclusion, without justification or explanation, of nearly 80 percent of the victims identified in the original indictment, which radically reduces the cases for which several of the accused will stand trial. They also objected to the dismissal of charges against two of the defendants. (An earlier decision by Judge Domínguez to dismiss charges against three additional defendants has also been appealed by prosecutors but has yet to be resolved.) Juan Francisco Soto, Executive Director of the Center for Human Rights Legal Action (CALDH), one of the organizations providing legal assistance to the victims in the case, told IJ Monitor that the judge’s decision to exclude so many victims undermines the case presented by the Attorney General’s Office.

Appeal of Judge’s Ruling Excluding Victims

The most recent movement in the case came last month in relation to an appeal filed by the Attorney General’s Office just days after the June 7, 2016 decision, which asserts that the ruling is procedurally defective because the judge failed to explain or justify her decision to exclude a large number of the victims identified in the original accusation. Prosecutors say they received notification that the appeal had been rejected by the High Risk appellate court (Sala de Mayor Riesgo y Extención de Dominio) in mid-May of this year. In response, on May 18, the Attorney General’s Office filed a new appeal challenging this decision before the Constitutional Court.

State prosecutor Elena Zut told IJ Monitor that the appeal was filed on behalf of specific victims whose cases were excluded in the judge’s June 2016 decision. For example, in the case of Los Encuentros, a village in Rio Negro, Zut said, “The judge mentions the victims in her resolution but does not state clearly if she is allowing prosecution of the defendants for these cases or if they are excluded.”

Zut said that the judge also omitted five cases of sexual violence from Pambach, Alta Verapaz against two of the defendants, on the assertion that these crimes were not included in the original accusation filed by the Attorney General’s Office in January 2016. The sexual violence charges were filed against retired military intelligence officer César Augusto Cabrera Mejía, who was reportedly being considered for the post of Ministry of Governance prior to his arrest, and Juan Ovalle Salazar, commander of the First Infantry Batallion. Both were stationed at MZ21 when the alleged crimes were committed.

At the May 18 hearing, the Attorney General’s Office presented audiotapes from the January 2016 hearings demonstrating that both these cases were in fact part of the original accusation. Auxiliary prosecutor Elena Mijangos told IJ Monitor that the Attorney General’s Office appealed the ruling because “it does not provide any further substantiation for the decision [to reject the original appeal] but merely repeats the assertions made by the judge in her June 2016 decision [that these charges were not included in the original accusation].”

According to Mijangos, the appellate court failed to consider the audiotapes of the January 2016 hearings presented by the prosecutors and did not clarify the status of the victims. “This is an arbitrary decision that upholds a prior arbitrary ruling,” says Mijangos.

As a result of these exclusions, the charges against several of the defendants awaiting trial have been dramatically reduced. For example, the prosecutor’s accusation against Benedicto Lucas García included 14 cases of enforced disappearance, but Judge Domínguez ordered the closure of two cases and the dismissal of seven cases, leaving only five cases from the original accusation. In the case of César Augusto Cabrera Mejía, the original accusation included 125 cases of enforced disappearance, but the judge ordered the exclusion of 76 cases, arguing procedural defects, the dismissal of one case, and the closure of 16 additional cases, leaving only 32 cases.

CREOMPAZ Case at an Impasse

In addition to these appeals, the Attorney General’s Office filed a protective measure (amparo) in relation to Judge Domínguez’s June 2016 decision in the case. The amparo seeks to reinstate dozens of victims excluded by the judge. In December 2016, the Constitutional Court granted a provisional amparo to the plaintiffs but has yet to hand down a final resolution.

The Attorney General’s Office also sought to impeach former member of Congress and top advisor to President Jimmy Morales, Edgar Justino Ovalle, who it wanted to prosecute for at least six cases of enforced disappearance related to the case. After more than a year of deliberations, Judge Domínguez ruled in favor of the prosecution and lifted Ovalle’s immunity. However, he went into hiding and remains a fugitive of justice. (As reported previously, eight additional military officials wanted in relation to the CREOMPAZ case have not been apprehended, including retired army general Luis René Mendoza Palomo, Minister of Defense during the Romeo Lucas García government (1978-82)).

A series of other legal motions remain pending. One of the victims’ organizations, the Coordinating Group of Victims of Alta Verapaz (CODEVI), challenged Judge Domínguez’s June 2016 ruling for denying the organization civil party status in the proceedings. Another civil party to the case, the Families of the Detained-Disappeared of Guatemala (FAMDEGUA), filed a separate amparo before an appellate court challenging the delays in resolving these different legal motions.

At the same time, the defense lawyers have presented a series of legal motions seeking to terminate the legal proceedings against their clients. To date there have been nine hearings in response to these claims. Benedicto Lucas García has argued, for example, that he has no responsibility for the crimes committed by subordinates and that the charges against him should be dismissed. Several of the defense lawyers have also sought to have the charges dropped, claiming that their clients were not in the country at the time of the alleged crimes.

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). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.

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