On Wednesday, the First High Risk Court of Appeals held a hearing on the different appeals filed by the four former senior military officials convicted in the Molina Theissen case in 2018. Court President Anabella Cardona presided over the hearings along with judges Mynor Oxom and Marvin Reyes.
In May 2018, High Risk Court “C” unanimously convicted and sentenced retired general Benedicto Lucas García, retired general Manuel Callejas y Callejas, retired colonel Francisco Luis Gordillo Martínez, and retired major Hugo Ramiro Zaldaña Rojas to 33 to 58 years in prison for crimes against humanity and aggravated sexual assault against Emma Molina Theissen, and for the forced disappearance of her 14-year-old brother, Marco Antonio Molina Theissen, in 1981. Lucas García and Callejas y Callejas are facing additional charges of genocide and crimes against humanity for crimes against the Maya Ixil during the government of Romeo Lucas García (1978-1982) in which evidentiary hearings are set to commence on March 9. Lucas García is also awaiting trial in the CREOMPAZ enforced disappearance case, which has been stalled since June 2016 due to a series of unresolved appeals.
The four men appealed the verdict. Last year, the First High Risk Court of Appeals dismissed appeals filed by Zaldaña and Callejas y Callejas for failing to conform to minimum legal standards. Both men have filed amparos (appeals on constitutional grounds) against this decision before the Supreme Court of Justice and asked the court to order a new trial.
Zaldaña’s defense attorney asked the court to suspend the hearing, during which it was to have reviewed the appeals still pending of Lucas García and Gordillo. He said that if the Supreme Court grants his amparo, it would result in a new trial. The other defense attorneys expressed their agreement with Zaldaña’s request.
The plaintiffs noted their conformity with the court’s decision to reject the appeals of Zaldaña and Callejas y Callejas but expressed concern that an amparo decision resulting in a new trial could represent a due process violation.
The court ruled to suspend the hearing until the Supreme Court of Justice rules on the amparos.
International Justice (IJ) Monitor spoke with Alejandro Rodríguez, a lawyer representing the Molina Theissen family, to learn more about the content of the appeals filed by the convicted military officials.
According to Rodríguez, the appeals include procedural as well as substantive challenges. Here we address the primary substantive challenges. The appeals challenge the ruling based on the claim that the crime of sexual violence does not exist in Guatemalan criminal law. Rodríguez said that this was inaccurate: aggravated sexual violation, outlined in Articles 173 and 174 of the criminal code, occurs when two or more persons are involved in the crime of sexual violence; when the author of the crime is a relative or legal custodian of the victim; or when the crime causes grave harm to the victim. It carries a penalty of eight to 20 years in prison.
The defense appeals also claim that it is impossible to punish sexual violence as a crime of omission. Rodríguez explained that in this case, each of the senior military officials was found criminally responsible of the crime of sexual violence because of their positions in the military chain of command, and as a result, they had control over their subordinates and supervised their actions.
Another argument in the appeals is that the sentence punishes the officials for the same crime twice because the judge convicted them of aggravated sexual assault as well as crimes against humanity, which the defense claims encompasses the crime of sexual violence. Rodríguez countered that that these are in fact distinct crimes: crimes against humanity encompasses the torture suffered by Emma Molina Theissen while she was in military custody, including beatings, electric shocks, kicks, and other forms of torture proven in the course of the trial. Aggravated sexual violence is a distinct crime, he said.
Finally, the defense argues that the crime of forced disappearance was not in the Guatemalan criminal code in 1981. However, Rodríguez pointed to ample international jurisprudence establishing that forced disappearance is an ongoing crime that continues until the body of the victim is found or information about the victim is provided. In this sense, he noted, the crime is ongoing.
Rodríguez expressed his agreement with the court’s decision to suspend the hearing. However, he expressed concern that the amparos filed by the defense lawyers seek to overrule the 2018 trial. He said that the trial, which resulted in the conviction of four of the five accused, respected their full due process rights. “It is regrettable that the defense lawyers continue to use amparos as a way to undo the proceedings,” he told IJ Monitor.
The Inter-American Court of Human Rights has urged the Guatemalan state to reform the amparo law to limit its abuse. Amparos are frequently used to delay or obstruct judicial proceedings, or to overturn court rulings in order to obtain impunity.
Judge Cardona informed the parties that Jovita Tzul Tzul presented a friend of the court brief on February 25 entitled “Criminal Responsibility of Hierarchical Superiors and Commanders in the Crimes of Sexual and Gender-based Violence,” signed by international organizations, including Civitas Maxima, the World Organization against Torture (OMCT), TRIAL International, Women’s Link Worldwide, as well as several professors of international humanitarian law, international criminal law, and international human rights law. The defense objected to the incorporation of the amicus brief, saying it violated the court’s impartiality and that the organizations and professors who signed it had not been properly accredited. The court overruled their objections and allowed the incorporation of the brief. It then suspended the hearing.
There is no clarity as to when the court will take up the pending appeals or when the Supreme Court of Justice will respond to the amparos filed 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.