The First High Risk Court of Appeals rejected yesterday the request for release filed by three of the four senior military officials convicted in the Molina Theissen case. The court consisted of a panel of three judges: presiding judge Anabella Cardona, Mynor Oxom and Marvin Reyes.
The request was filed by lawyer Karen Fisher on behalf of Benedicto Lucas García, former army chief; Manuel Callejas y Callejas, former chief of military intelligence; and Francisco Gordillo Martínez, former head of Military Zone No. 17 (MZ17) where Emma Molina Theissen was detained, tortured, and raped in 1981. Fisher filed a similar request back in April in favor of Lucas García and other officials awaiting trial in the Creompaz mass forced disappearance case ; that request was also rejected.
The three men were convicted and sentenced to 33 years in prison for crimes against humanity and aggravated sexual assault against Emma Molina Theissen. Lucas García and Callejas y Callejas were convicted and sentenced to an additional 25 years for the forced disappearance of Marco Antonio Molina Theissen. The convicts are currently held in the Military Prison, in part due to their advanced ages.
Fisher argued that her clients should be released for humanitarian reasons, citing their advanced age and the danger of contracting COVID-19. She argued, “I am not asking for amnesty, nor seeking to prejudice the judicial process. We are requesting house arrest. It is of the utmost urgency that the coercion measures be reviewed due to their advanced age.” She insisted that her clients did not represent a risk of flight or “obstruction of justice.”
The convicted officials have never admitted to wrongdoing in this case, nor have they provided information that could help the Molina Theissen family identify the remains of Marco Antonio so that they can provide him a proper burial.
Edgar Max Aldana, prosecutor for the Attorney General’s Office, countered saying that allowing the convicts to be released from prison and placed under house arrest would represent a flight risk, which would violate the rights of the victims in this case. Aldana also noted that Guatemalan law prohibits substitution measures for those convicted of aggravated sexual assault, so it would be a violation of the law to release the three men to house arrest.
A representative of the Prosecutor General’s Office (PGN) also argued in favor of the release of the three convicted military officials, citing their advanced age. The PGN is supposed to represent the interests of the Guatemalan state in judicial proceedings, rather than individuals who are or were at one time government functionaries.
Héctor Reyes, legal director of the Center for Human Rights Legal Action (CALDH) and representative for Emma Theissen Alvárez, the mother of Emma and Marco Antonio, asked the court to dismiss the request. He argued that domestic and international law prohibits the granting of substitution measures to those convicted of the crimes of aggravated sexual assault, forced disappearance, and crimes against humanity. He also argued that granting their release from prison represented an imminent flight risk.
Reyes also cited the 2004 judgment of the Inter-American Court for Human Rights finding the State of Guatemala responsible for the forced disappearance of Marco Antonio Molina Theissen. This judgment, along with several others, orders the State of Guatemala to abstain from adopting measures that obstruct justice or create impunity in this and other cases of grave human rights violations.
Reyes also presented documentation establishing that the Military Hospital has established protocols to protect the health of inmates, including special measures to address the coronavirus. He added that the Military Hospital is one of the best hospitals in the country and restricts access for the general population, and noted that even the president of Congress, Allan Rodríguez, was treated there when he was diagnosed with COVID-19.
Lawyer Jovita Tzul Tzul, representing Emma Molina Theissen, stated that she adhered to Reyes’ arguments, adding that a decision granting the three officials house arrest would contradict international law. She asked that the court also weighed its responsibility to guarantee judicial protection to the victims and witnesses who testified in this case.
After a short recess to deliberate, Judge Cardona delivered the unanimous ruling rejecting the request for release, citing Article 264 of the Criminal Procedure Code which expressly prohibits individuals accused or convicted of the crime of aggravated sexual assault from being granted alternative coercion measures. She also referred to the arguments presented by Tzul Tzul, affirming that the three convicted military officials are receiving the necessary care at the Military Hospital.
Questions about the First High Risk Court of Appeals
The First High Risk Court of Appeals has come under intense scrutiny due to a series of controversial resolutions issued over the past few years that have favored government officials and others identified by the now-defunct International Commission Against Impunity in Guatemala (CICIG) as belonging to organized crime or engaged in high-level corruption, including Otto Perez Molina, Roberto López Villatoro, known as “The King of Sneakers” and the suspended magistrate Eddy Orellana. In 2015, CALDH, which represents the victims in the Rios Montt genocide case, filed a motion to recuse Anabella Cardona from the case due to her close ties with the military. For more information, see the recent report published by Nómada, “Estos defensores de narcos, de corruptos (y otros cuestionables) quieren ser magistrados de salas.”
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.