On Wednesday, August 19, the First Court of Appeals in Guatemala will convene a hearing to consider a request for release filed by three of the four senior military officials convicted in the Molina Theissen case. The former military official are requesting to be released from prison due to concerns over the COVID-19 pandemic. In response, the Molina Theissen family filed an appeal against the Second Court of Appeals for “defective procedural activity.”
High Risk Court “C” convicted four retired senior military officials in May 2018 for crimes against humanity, aggravated sexual assault, and forced disappearance against Emma and Marco Antonio Molina Theissen. Those found guilty were Benedicto Lucas García, former army chief; Manuel Callejas y Callejas, former chief of military intelligence; Francisco Gordillo Martínez, former head of Military Zone No. 17 (MZ17), where Emma was detained, tortured, and raped; and Hugo Zaldaña Rojas, former head of military intelligence at MZ17. Judges held the defendants accountable as both the intellectual and material authors of the crimes, and they are serving their sentence at the Guatemalan Military Hospital.
The three most senior officials, Lucas García, Callejas y Callejas, and Gordillo Martínez, are now seeking release from prison.
Héctor Reyes, the legal representative of the Molina Theissen family, filed an appeal Tuesday morning. The appeal argues that the Guatemalan criminal code excludes those convicted of the crimes of forced disappearance and aggravated rape from enjoying substitution measures. Therefore, the court should not have convened the parties, much less grant a hearing to consider the request. Reyes also argues that the court is required to apply the conventionality control doctrine in this case because the three men were convicted of international crimes, including forced disappearance, torture, and aggravated sexual assault.
The Inter-American Court of Human Rights developed the “conventionality control” doctrine, which establishes the supremacy of human rights treaties over domestic law – constitutions included – of the states parties to them. The Inter-American Court issued a judgment against the State of Guatemala in which it found it responsible for the forced disappearance of Marco Antonio Molina Theissen in 2004.
The Center for Justice and International Law (CEJIL) published a press release affirming that the Inter-American Court for Human Rights notified the State of Guatemala Tuesday that the Molina Theissen family had requested precautionary measures in due to their concern that the appeals court could release the convicts Wednesday. The Inter-American Court can issue orders to State Parties as part of its mandate to supervise the fulfillment of its sentences.
The president of the Inter-American Court reminded the State of Guatemala that that its 2004 judgment in the Molina Theissen case orders the state to avoid imposing amnesties, statutes of limitations, or other measures that seek to impede criminal prosecution or to alter the effects of the judgment. CEJIL noted their concern that the appeals court could order the release of convicts at Wednesday’s hearing, and if that were to occur, the risk of flight is very high. “Similar situations have occurred in the past, for example in the case of Mack Chang vs. Guatemala, in which an individual convicted in the case escaped and more than a decade later has not been apprehended.”
Requests for Release in Other Grave Crimes Cases
This is not the first time that those accused or convicted of crimes against humanity have sought their freedom based on the COVID-19 pandemic. The appeal filed by Reyes referenced a statement published last April by UN Special Rapporteur on the promotion of truth, justice, reparation, and guarantees of non-recurrence Fabián Salvioli in response to a request filed by lawyer Karen Fisher seeking the release of a number of retired senior military officials, including Lucas García, which was ultimately rejected by the court. According to the statement: “International law prohibits the adoption of measures that generate impunity, in law or in fact, for people convicted of these crimes,” including “grave violations of human rights, crimes against humanity, genocide or war crimes.”
Nevertheless, several of the retired military officials awaiting trial in the CREOMPAZ mass forced disappearance case have continued to file requests for their release based on the COVID-19 pandemic. To date, none have been granted. Judge Claudette Domínguez, the pretrial judge in the case, based her decision on two key arguments: first, she argued that the COVID-19 pandemic does not modify the causes that generate the pretrial detention indictment in the CREOMPAZ case; and second, she argued that the Military Hospital, where the accused are being held, has adequate specialized care to protect their health.
The Molina Theissen Family Response
The Molina Theissen family issued a public statement rejecting the release of the three convicted officials:
We express…our total indignation and absolute rejection of the possibility that the measure of coercion be modified to house arrest, which will not only guarantee impunity, but will also increase the risk of escape of the convicts. This constitutes a clear violation of the country’s legal system and of our right to justice, as well as a disrespect for the commitments assumed by the Guatemalan State before the Inter-American human rights system.
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.
*An earlier version of this report incorrectly stated the hearing is before the Second Court of Appeals. The hearing for release is taking place before the First Court of Appeals.