Court Dismisses Spurious Complaint against Molina Theissen Family

Last week, a Guatemalan court dismissed a criminal complaint filed by lawyer Karen Marie Fisher Pivaral against the Molina Theissen family. Fisher filed the complaint shortly after the May 2018 verdict in the case in which four military officials were convicted for crimes against humanity and aggravated sexual assault against Emma Molina Theissen, and three of the four were convicted for the enforced disappearance of Emma’s 14-year-old brother, Marco Antonio, in 1981. They were sentenced to 33 to 58 years in prison.

In her complaint, Fisher claims that Marco Antonio Molina Theissen is alive and that the Molina Theissen family therefore falsely accused the convicted military officials. She also stated that she was an aggrieved party because her family was affected by “subversion,” and some of the members of the Molina Theissen family openly admitted to their participation in “subversive” groups.

Fisher, who is known in Guatemala as an operator of hard-right, pro-military sectors, filed her claim before the Second Court of First Instance in Criminal Matters, Drug Trafficking, and Environmental Crimes, presided over by Judge Virginia Amparo De León Lara. Judge de León Lara’s impartiality has been questioned because she is the sister of a former general who held positions of power during the period of the internal armed conflict (1960-1996) and is allegedly associated with “The Brotherhood” organized crime network.

Irregularities marked the start of the proceedings. The court convened the hearing with the presence of only the prosecutor and Karen Fisher, leaving the Molina Theissen family lawyer, Alejandro Rodríguez, and national and international observers outside the courtroom. In the face of pressure, the court eventually allowed all parties and observers to participate in the hearing.

The court initially ruled to admit Fisher as a co-plaintiff. However, the prosecutor and Rodríguez made a compelling case that Fisher had no legal standing to bring an accusation against the Molina Theissen family; that the charges were spurious; and that the law requires that when a case has been heard by a tribunal, any complaints must be heard by the same tribunal, not to a different one, as was the case here.

This prompted Judge De León Lara to reverse her decision admitting Fisher as co-plaintiff in the case. The judge then dismissed the complaint. Rodríguez later told International Justice (IJ) Monitor that he views the complaint as an “act of intimidation” against the Molina Theissen family.

Irregularities: Attempt to Exclude Courtroom Observers

Before the proceedings began, all parties were waiting outside the small courtroom where the hearing was scheduled to take place. This included the prosecutor representing the Attorney General’s Office; the plaintiff (Fisher); Rodríguez; and national and international observers.

A court official called on the prosecutor and Fisher to enter the courtroom. However, the others were denied entry, and the court initiated the hearing. Rodríguez insisted with the court official that he should be allowed to participate in the hearing. IJ Monitor also insisted on its right to observe the proceedings because it is a public hearing. The court authorized Rodríguez and IJ Monitor into the courtroom. Due to this delay, IJ Monitor was unable to observe the first few minutes of the hearing.

As the hearing resumed, Fisher questioned the presence of the IJ Monitor representative, calling on the judge to identify the individual and their institutional affiliation. She also called for the observer’s exclusion and for the hearing to be held in private. The judge did request information about the identity and affiliation of the IJ Monitor representative, something that has never happened in several years of monitoring Guatemala’s grave crimes cases.

The court was deliberating Fisher’s request to exclude the observer and to close the hearing to the public when it began receiving complaints from others who had been denied entry into the courtroom, including national and international observers as well as relatives of the military officials convicted last May in the case. Among the international observers were officials from the UN High Commissioner for Human Rights.

The judge finally acceded to the requests to hold the hearing in public. Due its small size, only a few people could fit inside the actual courtroom, so some of them observed the hearing from the doorway.

Hearings in Guatemala, such as this one, are public unless the court determines otherwise based on specifications outlined in law, which made the judge’s attempt to limit outside observers highly irregular.

The Arguments

The hearing continued, with Fisher accompanied by the families of several of the military officials convicted in the case. Fisher requested the court to admit her as a temporary co-plaintiff in the Molina Theissen case.  

She also called for the removal of Alejandro Rodríguez from the hearing, saying that the accused, not their representative, should be in attendance. The court did not grant the request to remove Rodríguez, and he remained in the courtroom.

Fisher justified her request to be a co-plaintiff saying she considers herself an aggrieved party because her family was affected by “subversion” during the internal armed conflict, and two members of the Molina Theissen family admitted to being militants of the Patriotic Worker Youth (JPT). She stated that subversive groups were responsible for killing one of her cousins and for destroying and her family’s property.

As further justification, she said that one of the Molina Theissen family members works at the Center for International Justice and International Law (CEJIL), which she described as “an organization dedicated to persecuting Guatemalan war veterans.” CEJIL represents the Molina Theissen family before the Inter-American Court of Human Rights. In 2004, the Court found the State of Guatemala responsible for the enforced disappearance of Marco Antonio and ordered the investigation, prosecution, and punishment of those responsible, as well as a series of reparations members that Guatemala has only partially fulfilled.

(Of note, CEJIL also represented Fisher and others in another case before the Inter-American Court of Human Rights, which in 2004 found the State of Guatemala responsible for the murder of Fisher’s father-in-law, Jorge Carpio Nicolle, a politician and journalist who opposed the 1993 self-coup of Jorge Serrano Alías.)

Fisher told the court that her lawsuit is based on her observation that on the day the sentence was handed down in the Molina Theissen case, she saw a man sitting next to the Molina Theissen family in the courtroom who resembled Marco Antonio.

Fisher and the convicted officials’ families asked the Attorney General’s Office to conduct DNA tests on him and the Molina Theissen family to verify his identity. She called upon the judge to order the National Institute of Forensic Science (INACIF) to conduct the DNA tests. Fisher specifically did not want the Forensic Anthropology Foundation of Guatemala (FAFG) to be involved, saying that she had evidence that its executive director, Fredy Peccerelli, is not a forensic anthropologist. She also offered to cover the expenses of the test.

Fisher further claimed that the Molina Theissen family had falsified other documents, referring to the fake identity card that Emma was using when she was captured by the military in 1981.

The prosecutor and Rodríguez opposed Fisher’s request to be admitted as a co-plaintiff, saying she does not meet the conditions to be an affected party in this case. Moreover, they said, there is no connection between the attacks she describes against her family and the Molina Theissen family. Rodríguez further noted that the Molina Theissen case has already been heard by another court, and proper procedure dictates that any grievance should be filed before that same court.

Prosecutor, Molina Theissen Lawyer Challenge Fisher’s Standing

Judge de León Lara at first ruled to admit Fisher as a temporary co-plaintiff. Rodríguez appealed the decision. He stated that Fisher’s complaint is about alleged crimes that do not affect her, meaning she lacks standing be a co-plaintiff in the case. Only the retired military officials convicted in the Molina Theissen case could pursue a complaint of this nature, he said.

Rodríguez argued further that these officials were convicted last May for the enforced disappearance of Marco Antonio Molina Theissen, a crime that was proven in a court of law as well as before an international court (referring to the Inter-American Court of Human Rights). The prosecutor further challenged the judge’s decision because Fisher is not related to the convicted officials, thus has no standing as an aggrieved party in this case.

After deliberating briefly, the judge reversed her decision, denying Fisher’s request to be admitted as a co-plaintiff. She based her decision on the arguments presented by the prosecutor and Rodríguez: Fisher has no standing in the case; and that by law, when a case has already been heard by another court, it is not correct procedure to file a complaint before a different court.

The plaintiffs then petitioned the judge to dismiss Fisher’s complaint for lack of merit. The prosecutor stated that her office had investigated the identity of the person indicated by Fisher and determined that he is married to one of the members of the Molina Theissen family. The man is also approximately 20 years older than the age Marco Antonio would be if he were alive. She ended by saying that the complaint constituted slander and revictimizes the family.

Rodríguez also called for the complaint to be dismissed, adding that the May 2018 judgment found that members of the Guatemalan Army were responsible for the enforced disappearance of Marco Antonio Molina Theissen and ordered the state to locate his remains and return them to the family. The judgment also mandates the cessation of all forms of harassment against the Molina Theissen family.

Fisher’s complaint is a clear example of harassment, he said, and the persistence of such practices is one of the reasons the Molina Theissen family continues to live in exile. He also noted that the Molina Theissen trial was heard by High Risk Court “C” due to the threat that the retired military officials represent to the safety of the Molina Theissen family.

In response, Fisher asked the judge to dismiss the complaint provisionally, so that the families of the military officials could pursue it if they so desired.

Judge Dismisses the Complaint “Even If They Make Faces at Me”

Judge de León Lara ruled to dismiss the complaint, concluding that Fisher lacks any legal basis as a co-plaintiff or to further pursue the charges and that the law establishes that any complaint in a case that already has been heard by a trial court should be brought to that trial court. She noted that the trial court judgment prohibits the harassment of the affected parties in the Molina Theissen case.

The judge stated that she was dismissing this case, “even if they make faces at me,” referring to the families of the military officials present at the hearing who were unhappy with her ruling. She added that as a judge, she should not have heard this complaint.

Rodríguez told IJ Monitor that in his view, “the judge was clear that there cannot be two investigations in the case. She dismissed the charges because there is a principal legal process in this case, and any issues must be presented to that court.”

He added that, in his view, this complaint was an effort to “criminalize” the Molina Theissen family and constitutes “a serious incident of harassment and reprisal against them. It is an act of intimidation.”

Questions Raised

In the end, Judge de León Lara ruled according to law. However, the irregularities reported here raise questions. The Guatemalan press has cast doubt on Judge De León Lara in the past. Ruben Zamora, editor of the Guatemalan daily El Periódico, questioned the judge in 2017 when

Ricardo Méndez Ruiz, president of the Foundation Against Terrorism, filed a defamation complaint against him before her court.

Zamora reported that Judge de León Lara is the sister of retired general Eugenio Morris de León Gil, who during 1991 was the head of the feared “Archive,” an intelligence and operational unit of the President’s General Staff (EMP) that maintained personal information on civilians and was at the heart of the urban terror campaign to kidnap, torture, and disappear suspected subversives between the late 1970s and mid-1980s. According to Zamora, De León Gil is also a member of “The Brotherhood,” a clique of former military intelligence officials led by Manuel Callejas y Callejas, one of the four officials convicted in the Molina Theissen case, and maintains close ties to former military officials who are members of the Foundation Against Terrorism.

It is not clear if Fisher specifically filed her complaint before Judge de León Lara due to the judge’s family connections, but there are numerous instances, including the 2013 genocide case, of “malicious litigation” practice in Guatemala. In several rulings, the Inter-American Court has ordered Guatemala to enact measures to stop such practices.

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.