Caribbean & Central America - June 2013 (ISSN 1741-4458)

Hopes generated by the historic conviction of former dictator, Efraín Ríos Montt (1982-1983), for genocide and crimes against humanity perpetrated during Guatemala’s 1960-1996 civil war [RC-13-05] have proven premature. Ten days after the 10 May ruling, the constitutional court (CC) overturned the verdict, citing the fact that the various legal challenges presented by the defence awaited resolution. International human rights organisations like the US-based Washington Office on Latin America (Wola) slammed the CC’s decision as the result not of legitimate legal procedure, but rather the latest instance of the time honoured practice of ‘litigio malicioso’ (malicious litigation-unethical legal tactics), arguing that through tactics like the excessive use of ‘amparos’ (constitutional challenges), the defence had used “the legal system to defeat justice”.

The CC ruled by three to two to overturn Ríos Montt’s conviction, ordering the trial to revert back to where it was on 19 April (when it was suspended on procedural grounds). The CC’s verdict, which prompted protests not only in Guatemala but also Argentina, Mexico, El Salvador, Nicaragua, Peru and Honduras, was based on an amparo presented by the defence team at the very end of the trial which claimed that the trial court had failed to remedy a due process violation from the start of the trial on 19 March – when Ríos Montt’s attorney, Francisco García Gudiel was expelled from the trial. García Gudiel (who was reinstated days later) was ejected after seeking to have two of the three trial court judges recused, citing “enmity” between himself and presiding judge, Jasmín Barrios, and “amity” between Judge Pablo Xitumul and Ríos Montt’s former head of intelligence, (ret.) General José Mauricio Rodríguez, who faced the same charges but was acquitted as part of the 10 May ruling. Under Guatemalan law, lawyers and judges are barred from taking on a case if a conflict of interests exists between the two. The defence team, which also claimed there are 12 interim legal challenges awaiting resolution, with several others filed since 10 May, argued that Ríos Montt’s right to defence and to due process had been violated by García Gurdel’s temporary removal.

With considerable uncertainty surrounding the future of the trial, which a spokesperson for the trial court said could resume in April 2014, local legal experts and the likes of Wola have been quick to question both the CC’s decision and the legal strategy of the defence team. Although the CC’s decision technically sends the trial back to previous stage, a new trial is likely to be necessary in practice given that the trial court judges have since been forced to recuse themselves given that they had already issued a ruling on the case and so can no longer be considered to be impartial.

As regards the CC’s decision, it is worth pointing to reservations raised by the two dissenting CC judges, Mauricio Chacón and Gloria Porras who argued that the verdict should have been appealed via normal legal channels rather than put before the CC. This was echoed by other legal experts like Jorge Mario García Laguardia, a former human rights ombudsman (1993-1997) and former CC president, who suggested that the court had overstepped its jurisdiction as it only has the authority to resolve constitutional issues. Chacón also claimed that the CC’s verdict was disproportionate to the violation of legal procedure asserted by the defence. Meanwhile Wola pointed out that the practice of litigio malicioso is hardly unprecedented in Guatemala, recalling criticisms made by the Inter-American Court of Human Rights in relation to another landmark trial – efforts to bring to justice those responsible for the murder of Myrna Mack, a Guatemalan anthropologist who was killed by the military in 1990 for her exposure of civil war atrocities (see sidebar).

• Portillo extradited

The surprise extradition on 24 May of Guatemala’s former president, Alfonso Portillo (2000-2004), to the US, where he faces money laundering charges to the tune of US$70m, has also been met with scepticism. The decision raised further questions about the politicisation of Guatemala’s justice system and suggestions that the move may be linked to the overturning of Ríos Montt’s conviction.

  The first former Guatemalan president to be tried in another country, Portillo, had been fighting extradition to the US for two years. In a clear attempt to assuage concerns that the move may be linked to the Ríos Montt ruling, President Otto Pérez Molina highlighted that Portillo’s extradition had been authorised by his predecessor, Alvaro Colom (2008-2012), in November 2011. This in turn came seven months after Guatemala’s supreme court acquitted Portillo and two of his ministers of corruption [RC-11-06].

 While the US embassy in Guatemala hailed Portillo’s extradition as “an important affirmation of the rule of law and due process”, its timing raised eyebrows. Portillo told reporters that he was being “kidnapped”, that his extradition was “illegal” and there were still appeals pending. With local human rights activists like Claudia Samayoa, of the civil society group Unidad de Protección a Defensoras y Defensores de Derechos Humanos Guatemala, dismissing the move as a strategy aimed at deflecting attention from the outrage over the CC’s decision, it also fuelled suspicion regarding the power of the influential private sector lobby, Cacif, over the courts. Cacif had vehemently come out against Ríos Montt’s conviction [RC-13-05] and Portillo was the one former Guatemalan president in recent years not to have had Cacif’s backing.

• Myrna Mack

In April 2004, following a judgment issued by the Inter-American Court of Human Rights (IAHCR), the government of President Oscar Berger (2004-2008) publicly recognized that the State was responsible for the killing of Myrna Mack for which (ret.) army Colonel Juan Valencia Osorio was convicted. Yet in a further sign of the notorious impunity afflicting the justice system, Osorio remains at large. In a November 2003 ruling, the IACHR noted the “abusive use of amparo remedies as well as other remedies…are part of this pattern that protects impunity and impedes strengthening of the system of justice”.

• Cicig head to step down

The United Nations (UN)-based International Commission against Impunity in Guatemala (Cicig) has announced that Cicig’s Costa Rican head, Francisco Dall'Anese, will leave the post by 4 September 2013, the end of his term. The 29 May announcement came amid rumours that Dall'Anese, who assumed the post in August 2010 and was expected to be re-appointed to see out Cicig’s mandate until September 2015, stepped down because of complaints to the UN by the government led by President Otto Pérez Molina over declarations made by Dall'Anese regarding the Ríos Montt trial.