Court Ratifies Historic Sepur Zarco Sexual Violence Judgment

The High Risk Appellate Court upheld the historic Sepur Zarco judgment this week after unanimously rejecting the three appeals presented by the defense counsel of the two military officials convicted last February in the case. The judges read the summary of the ruling in an open session on Wednesday afternoon.

High Risk Tribunal A, presided over by Judge Yassmín Barrios, handed down the judgment on February 26, 2016. The trial court found Lieutenant Colonel Esteelmer Reyes Girón, former commander of Sepur Zarco military base, and former military commissioner Heriberto Valdez Asig, guilty of all charges, sentencing them to 120 and 240 years respectively.

The court sentenced both officials to 30 years in prison for crimes against humanity against 14 women who were the victims of sexual violence and sexual and domestic slavery. The court also found Lt. Col. Reyes Girón responsible for the murder of Dominga Cuc and her two daughters, sentencing him to an additional 30 years for each of these victims, for a total sentence of 120 years. The court further found Valdez Asig responsible for the enforced disappearance of seven men, the husbands of the women victims in this case. The court imposed a sentence of 30 years for each of these victims, for a total sentence of 240 years.

This was the first time a Guatemalan court has prosecuted a case of sexual violence related to the country’s 36-year civil war. Human rights activists around the world have hailed the judgment as historic, saying that it demonstrates Guatemala’s commitment to assuring victims’ rights to truth and justice in grave crimes cases and represents an important step in the global struggle to end all forms of violence against women.

Ada Valenzuela, director of the Union Nacional de Mujeres de Guatemala (National Unity of Guatemalan Women, UNAM-G), one of the organizations representing the women victims, said that she was “extremely satisfied” that the sentence has been ratified. “This decision affirms our commitment to the women of Sepur Zarco, whose courageous testimony is the basis of this important historic precedent.”

The defense has 15 days to present a recourse of annulment (casación). In addition, the Constitutional Court has yet to emit a final resolution on the protective measure (amparo) filed by Reyes Girón’s defense lawyer, Moisés Galindo. Galindo filed the amparo after the Supreme Court denied recusal motions he filed against  two of the judges, Yassmín Barrios and Patricia Bustamante, based on past conflicts with Galindo in the Ríos Montt genocide case. If the Constitutional Court were to rule in favor of Galindo’s amparo, it could force a total redo of the Sepur Zarco trial.

International Justice Monitor obtained a copy of the court’s written resolution. Our analysis of the appeals and the court’s reasons for rejecting them follows.

Analysis of the Court’s Ruling

The appellate court judges who ruled on the appeals in the Sepur Zarco case were Judge Carlos Enrique Casado Max, president of the tribunal, and judges Gloria Dalila Suchite Barrientos and Rafael Morales Solares.

The appeal filed by defendant Heriberto Valdez Asig raised several challenges about the proceedings and the judgment. First, it challenged that the High Risk Court A heard the case, despite the fact that an amparo had been filed questioning the impartiality of two members of the tribunal.

It also challenged the court’s refusal to accept new evidence that his defense counsel sought to have admitted into the proceedings. The appeal claimed that there was a violation of the chain of custody of the remains of the victims because there was no established protocol.

In addition, the appeal asserted that the presiding judge illicitly modified the initial accusation by omitting a date and specifying individual responsibilities and challenged the expertise of expert witnesses Rita Laura Segato and Prudencio García Martínez.

Valdez Asig’s appeal also questioned the admission of more than 20 prerecorded witness testimonies, which were admitted at the pretrial stage, despite the fact that the witnesses were present in the hearings. Finally, the appeal challenged two witnesses, Agustín Chen and Miguel Ángel Caal, arguing that they were not fit to testify because they were formerly military commissioners.

The court ruled that the challenges raised in this appeal were neither concrete nor specific. The judge referred to the fact that the witnesses presented by the defendant testified about his character but not about the crimes of which he stood accused. Finally, the court maintained that the trial court followed the law in its decisions about the admission of evidence and of witness and expert testimony.

The appellate court also addressed the issue of whether the defendants’ right of defense was violated because of the supposed ill will that existed between defense counsel for Reyes Girón, Moisés Galindo, and two members of the tribunal, Presiding Judge Yassmín Barrios and Judge Patricia Bustamante. Barrios and Bustamante were members of the trial court that convicted Ríos Montt of genocide in 2013, while Galindo was part of Ríos Montt’s legal team. Galindo sustains that because of this antagonism, the judges could not be impartial, and therefore the tribunal was not competent to hear the Sepur Zarco case.

The appellate court argued that if there is ill will between the judges and defense counsel, it was the not result of the judgment handed down by the trial court that heard the Sepur Zarco case. The court argued further that this issue was addressed at an earlier phase of the process and that the appeal of the sentence is not the opportune moment, procedurally speaking, to take up this issue. Nor is the appellate court competent to review this issue. The court therefore declared this appeal unfounded.

Another element of the appeal presented by Galindo challenged that testimonies of the women survivors, which were video recorded during the pre-trial phase and accepted into evidence, were presented in court. During the public trial, Galindo repeatedly objected to these pre-recorded testimonies and to his inability to cross-examine the women survivors. The appellate court found that the pre-recorded testimonies were properly evaluated by the corresponding court, which determined that it was appropriate to accept them as evidence at that phase in the proceedings. The court also noted that the appeal presents no evidence that there is a law or other prohibition that prevents witnesses who testify during the pre-trial phase of a case from attending the trial hearing.

Finally, the appellate court addressed the appeal that the defendants should benefit from the 1986 amnesty law and that the statute of limitations for murder should be applied in this case. The appellate court determined that Article 11 of the 1996 National Reconciliation Law (which supersedes the 1986 Amnesty Law), as well as the Criminal Chamber, made clear that certain crimes are not subject to statutes of limitations or amnesties, particularly grave violations of human rights. The court also affirmed that the State has the obligation to investigate, prosecute, and punish those responsible of such crimes. Therefore, the court also declared this appeal unfounded.

Upcoming Challenges

There is still a long way to go, says Paula Barrios, Executive Director of Women Transforming the World (Mujeres Transformando el Mundo), one of the organizations that represents the women of Sepur Zarco. The defense has 15 days to file an appeal, which would be reviewed by the Criminal Chamber of the Supreme Court of Justice. In addition, the amparo filed by Galindo before the Constitutional Court on the subject of enmity with the judges of the court, which has not been resolved, remains pending, more than a year and a half since it was filed.

Despite these pending challenges, the ratification of the historic Sepur Zarco judgment on Wednesday is a major step forward in Guatemala’s ongoing struggle for truth and justice.

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.