International Justice Monitor

A project of the Open Society Justice Initiative

Molina Theissen Case Ready to Go to Court

The final phase of the preliminary hearings in the Molina Theissen case concluded this past week, opening the path to the criminal prosecution of five former senior military officials charged with the enforced disappearance of 14-year-old Marco Antonio Molina Theissen and the illegal detention, torture, and rape of his sister Emma. After several delays, the pretrial judge in the case, Víctor Herrera Ríos, finalized the review of evidence presented by the plaintiffs and the defendants on June 25.

The five officials, all retired, include two heavily decorated generals who were believed to be untouchableBenedicto Lucas García, former Army chief of staff, and Manuel Callejas y Callejas, former head of military intelligence and presumed leader of the Cofradía organized crime syndicate. The other three officials are Francisco Luis Gordillo Martínez,  commander of Military Zone No. 17 where Emma was detained in Quetzaltenango in 1981; Edilberto Letona Linares, former second commander of Military Zone No. 17; and Hugo Ramiro Zaldaña Rojas, former “S-2” intelligence official of the chief of staff.

Judge Herrera Ríos found in March that there was sufficient evidence in the accusation to proceed to public trial. There have been numerous delays in bringing to a conclusion this the final phase of the preliminary proceedings, in which the judge is required to review evidence and determine its admissibility. The delays were due in part to the court’s overloaded schedule, and in part to a series of legal motions filed by the defense.

Up until the March 2017 hearing, the defendants were required to appear in court for the pretrial hearings. In this hearing, however, the defendants were allowed to appear via videoconference from the Military Medical Center Hospital in Guatemala City. A judge was present at the hospital during the course of the hearing.

Analysis of the Hearing

A significant portion of the hearing was dedicated to a defense petition questioning the admission of Emma Theissen Álvarez de Molina, the mother of the victims, as a private prosecutor (querellante adhesivo) in the proceedings. According to defense lawyers, the judge did not state Ms. Theissen Álvarez’s complete name when he ruled to admit her as a private prosecutor in the case on May 2, 2017, constituting a procedural defect. The judge reviewed the audiotapes of the hearing in court. He determined that Ms. Theissen Álvarez had already been admitted as private prosecutor and ruled that the motion had no merit.

In their eagerness to remove Ms. Theissen Álvarez from the proceedings, the defense attorneys filed a formal protest, saying that the court failed to comply with the deadlines established by law to amend the error of having mispronounced the complainant’s name. The judge ruled that this was not relevant, since the rights of the victims cannot be vetoed by such formalisms.

Judge Herrera Ríos continued with his ruling, admitting all evidence presented by the plaintiffs and the defendants, including witness testimony, official documents, and expert witnesses. The court also admitted, at the request of the Prosecutor General’s Office (PGN), the 2004 judgment of the Inter-American Court of Human Rights in the Molina Theissen case, as well as the Court’s resolution on the supervision of the judgment. According to the PGN representative, the Court’s resolution establishes that the State of Guatemala has fully complied with the terms of the judgment. (The PGN, which acts in representation of the interests of the state of Guatemala, is a separate institution from the Attorney General’s Office. The plaintiffs called for its intervention to ensure that the Guatemalan state is party to the case, so that the state, as well as the defendants, can be held liable.)

When the judge finalized his presentation of the ruling, the defense lawyers filed a motion to reverse the decision, claiming that the evidence was not related to the facts of the case but rather to the context, and was therefore irrelevant. They also argued that the evidence had been illegally obtained, and was therefore inadmissible. Likewise, they challenged the decision to accept the plaintiff’s expert witnesses, saying they lacked proper qualifications.

The defense also argued that since the time when Claudia Paz y Paz was attorney general, the Attorney General’s Office has been politically biased. Alejandro Arriaza, defense counsel for Francisco Luis Gordillo Martínez, was even more specific, saying that such proceedings were motivated to “eliminate the military at all costs” and asserted that the Attorney General’s Office was “acting in bad faith.”

Attorney Lucas Cerna, who represents his father, former Army Chief of Staff retired General Benedicto Lucas García, also questioned the qualifications of the expert witnesses. Cerna also complained that the people in the gallery were making too much noise and asked for the room to be cleared of observers. The judge called on the public to be silent and maintain order, but he did not deem it appropriate to clear the public from the courtroom. Cerna exhorted Judge Herrera Ríos not to be influenced by individuals “who have nothing to do with these proceedings.”

Public prosecutor Erick de León asked to respond to the charges lodged against his office by the defense lawyers. De León stated that this is a criminal process, and challenged their contention that the proceedings were political in nature. He also said the defense never produced proof that his office’s evidence had been illegally obtained.

Judge Herrera Ríos rejected the defense motion of reversal, stating that he did not find any grounds to dismiss either the expert witnesses nor the evidence offered by the Attorney General’s Office. The probative value of the evidence, he said, would be debated at the public trial.

De León expressed his satisfaction that the judge ruled to admit all the evidence his office had presented in the case. High Risk Court C, presided over by Pablo Xitumul, will hear the case, and is in charge of establishing the start date of the public trial.

De León said that it was likely, however, that the defense lawyers would file one or more legal motions, which could further delay the trial’s start.

This is the first of two articles on the Molina Theissen case that will be published this week. The second will examine whether the state of Guatemala complied with a 2004 judgment from the Inter-American Court of Human Rights in the Molina Theissen case.

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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