Guatemala has made dramatic progress over the past decade in promoting accountability for abuses of power, including cases of human rights atrocities and acts of corruption. This progress is due in large measure to the International Commission against Impunity in Guatemala (CICIG), which was established in 2007 to work with the Attorney General’s Office to investigate and co-prosecute cases involving criminal networks that had emerged as a grave threat to the rule of law since the end of the country’s internal armed conflict in the 1990s. CICIG’s investigations over the past decade have led to the arrest and prosecution of powerful criminals and corrupt officials once considered to be untouchable. Its accomplishments have exceeded all expectations and generated unprecedented levels of public support for efforts to promote accountability in the country.
The most celebrated accomplishments of CICIG’s partnership with the Attorney General’s Office came in 2015 when their joint investigations exposed multiple corruption schemes, implicating officials in all three branches of government, and prompting the resignation and arrest of the country’s president and vice president. These cases include:
- The La Línea Case: Former President Otto Perez Molina and Vice President Roxana Baldetti were charged along with 28 other officials for allegedly organizing a scheme to defraud the customs authority by collecting bribes instead of customs duties.
- The Impunity Law Firm Case: A judge was charged with receiving a bribe to impose conditional liberty instead of pretrial detention for three suspects arrested in the La Línea case.
- The Phantom Jobs Case: A former president of Congress was charged with hiring people in Congress who never performed any work for that institution, and pocketing those wages himself.
Yet now, more than two years after these cases were filed, they have yet to go to trial—and there is a serious risk they never will. Instead, they have joined a growing list of cases pursued by CICIG and the Attorney General’s Office that have bogged down in pretrial proceedings. Other such cases include:
- The Blanco Lapola Case: A former national police director was charged in 2012 with ordering the execution of suspected criminals. Five years later, the case has yet to go to trial.
- The Corrupt Military Officers Case: Eight former defense ministry officials were charged in 2009 with embezzling more than US$70 million from the government. Eight years later, the case has yet to go to trial.
It is not only CICIG’s cases that have stalled. The Attorney General’s Office is facing similar difficulties in cases it is pursuing on its own—including, most notably, the prosecution of one of the most heinous crimes in the recent history of Latin America:
- The Genocide Case: Former dictator Efraín Rios Montt was charged in 2012 with genocide for the mass slaughter of Mayan communities in the early 1980s. He was tried and convicted in 2013, but the Constitutional Court nullified the verdict and ordered a new trial. After a delay of more than two years, a judge ruled in 2015 that Ríos Montt’s deteriorating mental health had rendered him unfit for a regular trial, and ordered that he instead be subject to special proceedings that do not allow for a guilty verdict. After two more years of delay, these proceedings only began in October 2017.
The problem of stalled prosecutions is nothing new in Guatemala. Past cases involving human rights atrocities suffered similar setbacks. These include:
- The Myrna Mack Case: Three former military intelligence officers were charged in 1996 for the 1990 assassination of Myrna Mack Chang. One defendant was convicted and two were acquitted in 2002, 11 years after they were first charged.
- The Dos Erres Case: Seventeen soldiers were charged in 1999 and 2000 for a massacre that occurred in 1982. Five of them were convicted in 2011 and 2012, 12 years after the first arrests were made.
While these last two cases resulted in prison sentences for some of the perpetrators, the convictions were obtained only after more than a decade of delays. The verdicts were celebrated as important achievements for human rights accountability. But it remains unclear to this day whether they were in fact breakthroughs, paving the way toward greater accountability, or merely exceptions proving the rule that, in Guatemala, prosecuting powerful people is a prohibitively onerous endeavor.
Human Rights Watch conducted an extensive review of these eight cases to determine the causes of the delays. A close examination of the judicial proceedings, as well as interviews with judges, prosecutors, lawyers and CICIG investigators, revealed a consistent pattern in which defense lawyers are easily able to trigger prolonged delays in criminal proceedings by filing repeated—and often unfounded—motions challenging court rulings or seeking the recusal of judges hearing their cases. These motions tend to cause unreasonable delays that are then greatly compounded by the slowness with which courts react to their filing and then to their eventual resolution.
Guatemalan law provides a broad range of due process protections for criminal defendants. These include a general right to appeal for protection of any constitutional or legal right—known as the “amparo”—which can be filed at any point during criminal proceedings and petitions requesting the removal of a judge from a case (recusación) or asking judges to recuse themselves (excusa) on grounds of alleged conflict or bias. While the due process rights of all criminal defendants should be properly safeguarded, the system of protections in place in Guatemala has been manipulated and perverted to protect powerful people from prosecution and to prevent victims of abuse from obtaining justice.
This report describes how defense attorneys are able to exploit the slow and hesitant manner in which many courts treat amparo and recusal petitions to secure unreasonably long delays in proceedings. The repeated filing of such petitions has brought many key prosecutions to a standstill, and lawyers are not effectively sanctioned even when filing petitions that are manifestly frivolous.
But while it is defense lawyers who have figured out how to take advantage of the courts’ deficiencies, it is the country’s judicial authorities that bear primary responsibility for prolonged delays that result from these disruptions. The derailing of justice is only possible because the courts allow it. Judges could decline to hear unfounded or frivolous appeals, but they rarely do. Courts have the discretion to continue with proceedings while amparo petitions are pending so long as there is no risk of irreparable harm, but, again, they rarely do. Instead, appellate courts admit unfounded appeals for review and first instance courts detain criminal proceedings until such appeals are resolved.
The resolution of these appeals should not take long, but it usually does, as courts routinely fail to adhere to the time limits for resolving them established in Guatemalan law. Amparo petitions should be resolved within a month or less, but they typically take six to 12 months. If an amparo petition is rejected and the petitioner appeals, it should take another month to resolve the appeal. Often, however, the resolution of these appeals takes more than a year. Similarly, recusal petitions—requesting a judge’s removal from a case—should be resolved by a higher court within a week. But, in practice, they often take more than two months.
The impact of the missed deadlines is often compounded by bureaucratic delays. For example, Guatemalan law requires that parties be notified of amparo rulings within a day—and of recusal rulings within five days—yet these notifications often take months.
The delays are further compounded by the routine failure of judges to promptly re-schedule proceedings that have been suspended or postponed because of an appeal—or because of any other disruption, however unjustified, such as the failure of defense lawyers to show up for a hearing.
All these factors add up. For instance, a recusal petition, once rejected, can lead to an amparo petition challenging that rejection, which can lead to another appeal if that petition is also rejected—with multiple missed deadlines, bureaucratic holdups, and scheduling delays along the way. Examples of prolonged delays include:
- In the Impunity Law Firm case, five recusal petitions stalled proceedings for more than a year.
- In the Phantom Jobs case, an appellate court took four months to reject a recusal petition. Two defendants then presented amparo petitions about that decision, causing an additional nine-month delay.
- In the Blanco Lapola case, a series of five—largely redundant—recusal petitions stalled the case for almost three years. More than half of that delay was due to an amparo petition that challenged the ruling on a recusal petition: the Supreme Court took six months to reach a decision on the amparo petition, and it took the Constitutional Court a year to decide the appeal. Another amparo petition produced an additional 22-month delay.
In short, it is easy for defense lawyers to derail criminal proceedings, and they often do so knowing that it may take months or years to get the case back on track. And there are no effective sanctions in place for lawyers who intentionally sabotage criminal proceedings, nor for judges who allow or cause egregious and unjustified delays. The Constitutional Court imposes fines on lawyers who file unfounded amparo petitions, but these can be no more than 1000 Quetzals (US$135), an extremely modest sum for attorneys representing wealthy clients, and they routinely go unpaid. (There are currently more than 3000 attorneys with unpaid fines.) Judges responsible for unjustified and egregious delays can, in theory, be held accountable by the judiciary’s disciplinary body—but this rarely happens. In 2016, more than one hundred disciplinary complaints were filed against judges for undue delays, but only three were found to be at fault, and their only sanction was a written reprimand.
When powerful perpetrators of abuse and corruption have found themselves facing judges who will not bend to pressure or be bought off, suspects have managed to postpone their day of reckoning so as to have their case be transferred to a malleable judge. Today, these defendants may also have the hope that they can run out the clock on CICIG and on the current attorney general, who has actively moved forward with the prosecution of cases investigated by CICIG. CICIG’s mandate will expire in September 2019, and the attorney general’s term expires in May 2018.
The fundamental objective of CICIG in Guatemala has been to jumpstart the Attorney General’s Office—to help this office transform itself into an institution capable of prosecuting powerful criminal organizations and government officials implicated in corruption and abuse. In this regard, CICIG has delivered. But for there to be real progress in these cases, not only effective prosecutors are needed, but also judges who are able and willing—and required—to do their jobs.
Guatemalan Congress has a crucial role to play. It should comply with the 2009 ruling by the Inter-American Court of Human Rights and reform the Amparo Law to prevent the abuse of this mechanism. Unfortunately, the record of the current Congress raises serious doubts about whether it will be willing to take measures to reduce impunity.
Ultimately, however, it is up to the highest authorities within the Guatemalan judiciary to ensure that cases involving egregious abuses of power are properly handled by the country's courts. But until now, the performance of the Supreme Court and the Constitutional Court on this front has been woefully inadequate. They have failed to use the tools at their disposal to curb unwarranted delays caused by lower-court judges and judicial functionaries. And they have themselves been directly responsible for many of the longest unwarranted delays in the cases documented in this report.
If Guatemala’s two highest courts do not take their responsibility for safeguarding the judicial process more seriously, it is very possible that the efforts by CICIG and the Attorney General's Office to prosecute their most important cases will fail, the country's hopes for strengthening the rule of law will wither, and the forces of corruption, abuse and impunity will prevail.
Human Rights Watch conducted more than 50 interviews with lawyers, jurists, CICIG investigators, prosecutors, and justice officials—including the attorney general, the president of the Constitutional Court, members of the Supreme Court, and members of Congress. The interviews were conducted primarily during research missions to Guatemala City between May 2 and May 13, 2017, between May 22 and May 31, 2017, and between June 19 and June 23, 2017. In many instances, follow-up interviews were conducted via telephone, email, WhatsApp, or Skype following the fact-finding missions. Interviews were conducted by Human Rights Watch staff in Spanish, and interviewees were informed of how the information gathered would be used. None received any incentives for their participation—financial or otherwise.
Additionally, Human Rights Watch undertook an extensive review of laws, judicial rulings, and case files—the latter following permission from the Guatemalan Supreme Court, as well as from judges directly in charge of proceedings.
Instruments of Delay: Amparos and Recusals
Guatemalan law establishes a range of mechanisms intended to ensure that criminal defendants are able to seek remedy for violations of their legal rights. These include the petition for amparo and the petition for recusal. The amparo petition is an extraordinary instrument to protect constitutional and legal rights when no other remedies are available. A recusal petition is a request to remove a judge from a case because of bias; a normal but exceptional measure in most countries’ judicial systems.
Amparo and recusal petitions can play a crucial role in ensuring the fairness, lawfulness, and credibility of criminal proceedings. But, for reasons this report describes, these petitions can be abused in ways that combine with the judiciary’s larger tendency to unreasonably delay to frustrate the pursuit of justice against politically powerful figures.
The petition for amparo is an extraordinary remedy enshrined in the Guatemalan Constitution that provides a protection of last resort when a person’s constitutional or legal rights have been or might be infringed by an authority. The protection the amparo provides is extremely broad, covering virtually any act or omission by any authority—including government institutions, private associations, and other legally-constituted entities—when ordinary means to address the violation have been exhausted. Petitions for amparo relief can be filed against any act or decision by a judge during any stage of a criminal proceeding, both in the pretrial phase and during the trial.
Guatemala does not have specialized courts dedicated to the resolution of amparo petitions. Instead, the law establishes whether a petition should be filed before a court of first instance, an appellate court, or the Supreme Court or Constitutional Court—depending on the authority whose act is challenged. In the case of amparo petitions challenging acts or decisions by judges or courts, the petitions are assigned to a higher court: petitions filed against actions by first instance judges are reviewed by appellate courts; those against actions by appellate courts are reviewed by the Supreme Court; and those against the Supreme Court are reviewed by the Constitutional Court.Petitioners have the ability to file petitions directly to the court of their own choosing (provided it is addressed to a court at the correct level of the hierarchy). However, it is standard practice to file instead with the judiciary’s administrative body, the Center for Auxiliary Services of the Criminal Justice Administration (Centro de Servicios Auxiliares de la Administración de la Justicia Penal), which then distributes the petitions to different courts.
The first step a court must take when it receives an amparo petition is to make a prima facie determination as to whether the petition is admissible. The Amparo Law includes the requirements for the admissibility of amparos, but it does not establish expressly that a petition that does not comply with those requirements is inadmissible. For that reason, the Constitutional Court has established that judges should take four basic requirements into account for determining admissibility. The amparo petition must have been filed:
- by a person who might suffer a risk, threat, restriction, or violation of a constitutional or legally-established right;
- against an authority;
- only after all other remedies to prevent or correct the harm have been exhausted; and
- within 30 days of when the petitioner knew of the harm or received the final notification of the harm not being remedied.
If a court determines that any of these requirements have not been met, it can—but is not obligated to—“permanently suspend” the petition without starting the process of soliciting and reviewing evidence to evaluate the merits of the claim; a de facto dismissal.
If the court admits a petition, it must then determine whether there is an imminent risk that the disputed act might cause or is already causing irrevocable harm to the petitioner. If so, the court will issue an order—called a “provisional amparo”—requiring the authority to refrain from beginning or continuing the disputed act until a final decision has been reached on the petition.
The procedure for resolving the petition entails the submission and review of evidence by both the petitioner and the authority, and includes a submission by the Attorney General’s Office, which must examine and take a position on every single amparo petition that is filed. Once the court has ruled on whether or not to grant an amparo, its ruling can be appealed. All such appeals go directly to the Constitutional Court.
Guatemalan courts receive thousands of amparo petitions every year. They determine that almost all of them admissible for review, but—after completing the review—reject most on the merits. Thousands of these rejections are appealed every year to the Constitutional Court, which—after its own review—usually upholds the rejection of the lower court.
In 2016, 5,152 amparo petitions were filed in Guatemalan courts. This represents a significant increase over the last decade: in 2012, 3,856 amparo petitions were filed. In 2009, that number was 3,058.
Nearly all amparo petitions are deemed admissible for review by the courts that receive them. Each month, more than 400 new amparo petitions are admitted by courts, while only around 10 petitions are deemed inadmissible.
Most of the petitions deemed admissible are rejected after they have been reviewed. In the 3,283 amparo decisions reached by courts in 2016, 73 percent—or 2,405 petitions—were rejected and 27 percent—or 878 petitions—were granted.
The numbers for appeals are similar. More than 7,000 appeals of amparo rulings reached the Constitutional Court in 2016. (This number includes appeals of both provisional and final amparo rulings.) Of the 1,993 amparo decisions issued by the court in 2016, 70 percent—or 1,388 petitions—were rejected and 30 percent—or 605 petitions—were granted.
The large number of amparo petitions adds to the caseload for the judges and judicial functionaries who must process them—as well as for prosecutors within the Attorney General’s Office who must review and offer a written assessment of every single amparo petition.
The Amparo Caseload of the Constitutional Court
This burden is particularly onerous for the Constitutional Court given that it must review all appeals of amparo rulings by lower courts. The court’s president told Human Rights Watch this responsibility makes it more difficult to “focus on issues that really merit our attention.” Instead, he complained, the court must focus considerable time reviewing amparo cases involving issues that are not of national importance nor of broader jurisprudential significance, as well as cases where there does not even appear to be any violation of a fundamental right. Some examples include:
- Whether a judge could accept as evidence a document from a notary public that referred to a registration filed in the “Mercantile Register of the Republic” even though the correct name was “General Mercantile Registry of the Republic.” The Court ruled that the identity of the registry was clear in the document and the petition had been filed “to delay and obstruct” the ordinary proceedings. The case took 14 months to make its way through the courts, of which it spent almost 12 months in the Constitutional Court.
- Whether an English bulldog named “Von Quetzal’s Frosty” could be required to undergo a DNA test before being included in the registry of the Guatemalan Canine Association. The Constitutional Court ultimately rejected the petition because the association’s registration committee had not made a final determination. It took 15 months for this case to be resolved by the courts.
- Whether the plaintiff in a case could demand that a hearing be rescheduled because the court did not have the correct address for notifying the defendant. The first instance court held that the plaintiff’s rights had not been violated, so he had no standing to file an amparo petition. The plaintiff appealed to the Constitutional Court, where the case has been pending since May 2017.
- Whether a group of medical students should be allowed to register for a new academic term even though they had not met their school’s academic requirements. The Constitutional Court rejected the amparo because the students should have appealed to the university’s board of directors first. It took almost nine months for the case to make its way through the courts.
A petition for recusal is a request to have a judge removed from a case due to bias, a conflict of interest, or other factors that might compromise his or her impartiality.
When a party presents a petition for recusal, the judge against whom the petition is presented must decide whether or not to accept it, and provide reasons for this decision. If the judge determines that the grounds alleged for recusal are without merit, he or she can reject the petition, but must “immediately” forward it to a higher court for review. The higher court must then convoke a hearing within five days and decide on the petition in that same hearing. If, on the other hand, the judge concludes that the petition is sound, he or she can recuse him or herself from the case, pending authorization from a higher court, which must then rule on the matter within 48 hours.
If the higher court rejects the recusal petition, the case returns to the original judge. If it grants the petition, it assigns the case to a new judge. Any acts that the recused judge might have performed since the presentation of the petition may be nullified. The higher court’s ruling is not subject to appeal but can be challenged (like any other act by an authority) through an amparo petition.
Impact on Criminal Proceedings
The filing of amparo and recusal petitions routinely result in the suspension of criminal proceedings. In the case of amparo petitions, Guatemalan law mandates the suspension of proceedings only when the court reviewing the petition issues a stay—or “provisional amparo”—until it completes its review. Yet, as discussed further below, it is common practice for judges to halt proceedings while awaiting a ruling from the court reviewing the amparo petition.
In the case of recusal petitions, Guatemalan law bars the judge against whom the petition was presented from performing any judicial acts in the case until the petition is resolved, except for those acts that, according to the judge, cannot be delayed. In order to ensure that proceedings in such cases do not get stalled while the higher court reviews the recusal petition, a judge is expected to send the case to a “replacement judge.” If the recusal petition is rejected, the case returns to the original judge.
In practice, however, judges against whom a recusal petition has been presented generally do not send the case to a “replacement judge” and instead suspend proceedings. The judges interviewed by Human Rights Watch indicated that sending a case to a “replacement judge” would take a lot of time, and in practice, they claimed, that judge would be reluctant to perform any acts until the higher court reviewed the recusal petition, so proceedings would be stalled anyway. The result is that criminal proceedings are typically stalled between the moment that a recusal petition is presented until the time that a higher court hands down its decision on the petition. This would not present much of a problem if the petitions were resolved within the timeframe established by law, but as this report shows, their resolution typically takes far longer than that.
Causes of Delay: How Judges and Lawyers Undermine Criminal Proceedings
In its review of the eight cases discussed below—as well as in extensive interviews with prosecutors, judges, lawyers and CICIG personnel—Human Rights Watch identified seven key practices by courts that contribute to the unreasonably frequent and protracted delays that plague key criminal court proceedings in cases involving corruption, human rights abuses, or other egregious abuses of power in Guatemala. Not all of the patterns of delay described below are inherently problematic in and of themselves. Rather, it is the combination of these practices, and the way they build upon one another to slow down or even halt the administration of justice, that creates the extreme and harmful delays seen in many important cases.
1) Judges fail to enforce admissibility rules for amparo petitions
A major reason that Guatemalan courts must review so many amparo petitions is that courts often admit petitions that do not actually meet the four basic criteria for admissibility discussed above. According to the director of the Office of the Attorney General’s amparo department—which must review and take a position on all admitted petitions—the large majority of amparo petitions are unfounded.
One reason judges may be reluctant to dismiss unfounded amparo petitions is that they lack adequate guidance on when it is appropriate to do so. The Amparo Law does not expressly authorize courts to dismiss amparo petitions, even if they do not meet the admissibility requirements. Instead, a Constitutional Court agreement (acuerdo) allows—but does not oblige—judges to “permanently suspend” those petitions that fail to meet the basic requirements; a de facto dismissal. Yet the agreement also establishes that judges make the admissibility determinations “under their own responsibility”—which means that they may be held at fault if they make an error. According to several judges and lawyers interviewed by Human Rights Watch, the fear of being found in error for refusing to admit a petition causes many judges to admit petitions that they do not actually believe to be admissible—a problem compounded by the fact that the Constitutional Court has failed to provide clear and consistent criteria on how to apply the admissibility requirements.
However, Constitutional Court President Francisco De Mata Vela told Human Rights Watch that he believes judges should apply the court’s agreement strictly and be more proactive in dismissing petitions. Instead, he said, “They wash their hands of it and [as a result] everything gets [to the Constitutional Court].”
2) Judges fail to meet deadlines for resolving amparo and recusal petitions
According to law, the process of soliciting and reviewing evidence in an amparo petition and issuing a decision should not take much more than a month—25 days plus six days for notifications: a maximum of 31 days. However, according to judges, prosecutors, judicial functionaries, jurists, and lawyers interviewed by Human Rights Watch, these time limits are hardly ever respected: in practice, reaching a decision in an amparo petition typically takes about six to 12 months.
- In the Phantom Jobs Case, the Supreme Court took nine months to reject amparo petitions filed by two defendants in May 2016.
- In the Blanco Lapola Case, the Supreme Court took nine months to reject amparo petitions presented by CICIG and the Attorney General’s Office in January 2015.
- In the Corrupt Military Officers Case, the Supreme Court took seven months to rule on amparo petitions presented by several defendants in March 2015.
The delays in the Constitutional Court are even worse. Guatemalan law establishes that appeals to provisional amparo rulings should be resolved within about a week—six days to reach a decision, plus two days for notifications: a maximum of eight days. Appeals to final amparo rulings (sentencias) should not take much more than a month—25 days, plus six days for notifications: a maximum of 31 days. But, again, our sources told us these time limits are hardly ever respected, a claim supported by the analysis of cases described in this report. And the president of the Constitutional Court admitted that it can take the court more than a year to reach a decision on an amparo petition.
- In the Corrupt Military Officers Case, the Constitutional Court took a year and a half (until May 2017) to rule on an appeal to an amparo decision filed by CICIG in November 2015.
- In the Blanco Lapola Case, the Constitutional Court took almost 22 months (until the end of July 2017) to rule on an appeal to an amparo decision filed by two defendants in early October 2015.
The time limits for judges to respond to recusal petitions vary according to the stage of the proceedings. Judges facing recusal petitions do tend to respect these time limits, but the higher courts reviewing the petitions do not. Such reviews should take five working days at most, but in practice they tend to take at least two months. Such delays are particularly problematic in cases where defendants file repeated recusal petitions, when the total accumulated delay can stretch into many months.
- In the Phantom Jobs Case, a defendant presented a recusal petition on November 27, 2015, but the appellate court only ruled on March 28, 2016—almost four months later than it should have.
- In the Impunity Law Firm case, five recusal petitions stalled proceedings for more than a year. For example, a recusal was filed on November 7, 2016, but the appellate court did not issue a ruling until January 26, 2017—more than two-and-a-half months later than it should have.
3) Judges and judicial functionaries delay bureaucratic procedures
In addition to courts’ failure to abide by deadlines for reviews, the resolution of amparo and recusal petitions is also held up by serious bureaucratic delays before and (especially) after the review takes place.
Before an appellate court can review a petition, it must obtain either a report about the issue at hand or the case files (or copies of the files) from the first instance court. The law requires that the transfer of these files occur promptly. In the case of amparos, the processing of the petition must be done as soon as possible—it has priority over other administrative processes. In case of recusals, the court must send the case files to the higher court within one day after having notified all parties of the appeal.
However, the transfer of the files routinely takes weeks to occur, according to judges and judicial functionaries. One cause for this delay, they said, is their large workload. Judges and judicial functionaries also told Human Rights Watch that higher courts can be very particular about the order, stamping, and numbering of the files they receive, and they frequently return case files to the lower court when the files do not conform to their preferences—such as, for example, when the documents are not compiled in a certain order.
- In the Blanco Lapola Case, the judge waited until April 24, 2012 to send a recusal petition to the appellate court that was presented on April 4, 2012, an almost three-week delay.
- In the Impunity Law Firm Case, a substitute judge sent the petition for her recusal to the appellate court on November 9, 2016. The appellate court should have decided on the petition within five days but returned the case file without a decision on the merits 15 days later, on November 24, 2016, citing that there were “inconsistencies in page numbering,” “ripped pages,” the need to “sow and stamp” a folder, “contradictions” in the notification address for a lawyer and a defendant in the case, and that regarding one of the folders in the case file, the original file—instead of the certified copy—had to be sent. (It eventually took until January 26, 2017 for the petition to be rejected.)
A second and even more serious source of bureaucratic delay occurs after a resolution has been reached. Under Guatemalan law, judicial orders only take effect when the parties in the case have received official notification. It is unclear whether an order takes effect at the moment that one of the parties has been notified, or whether it takes effect only after all parties have received notifications. Human Rights Watch interviewed six different judges, prosecutors, and judicial functionaries who indicated that each court interprets this differently “depending on who the parties are, who the lawyers are, and who the judges are.”
Notification of amparo rulings should be transmitted the day after the judge makes his or her decision, at the latest. In ordinary cases, decisions about case processing, such as the scheduling of hearings, should be issued within two working days. Decrees (autos)—slightly more elaborate determinations, such as decisions on recusals—should be notified within five working days, and judicial decisions within 15 working days.
Notifications of amparo and recusal decisions, however, too often take much longer, holding up proceedings.
- In the Blanco Lapola Case, the notification of an appellate court decision issued on July 2, 2012 was received on September 27, 2012—nearly three months later.
- In the Phantom Jobs Case, the notification process for a Supreme Court ruling on an amparo petition that was issued on February 7, 2017 (which itself came eight months late) only began on May 26, 2017—more than three-and-a-half months later.
4) Judges suspend proceedings while awaiting the resolution of petitions
Judges routinely halt criminal proceedings when a decision from another court regarding an amparo petition is pending—even when they are not required to do so because no provisional amparo has been issued.
One reason for this—according to judges, prosecutors, and judicial functionaries interviewed by Human Rights Watch—is that judges are reluctant to move forward with proceedings amidst uncertainty: if the amparo is granted, the proceedings they have carried out might be nullified. Another reason, according to judges themselves, is that if they continue with proceedings, they might be subjected to complaints—which, however unfounded, might be time-consuming distractions that could even have negative consequences for their career.
- In the Blanco Lapola case, the Attorney General’s Office and CICIG filed amparo petitions to the Supreme Court in January 2015, which were granted in October 2015. Blanco Lapola appealed almost immediately, but it took the Constitutional Court until the end of July 2017—almost 22 months—to reject the appeal. The judge in charge of the main proceedings in the case had not scheduled any hearings between October 2014 and July 2017, effectively stalling the case for two years and nine months.
When a recusal petition is presented, something similar happens. Although the presentation of a petition does not suspend proceedings, judges are not allowed to perform any acts until the petition is resolved by a higher court. Judges do not tend to send the case to a “replacement judge”, but typically order the suspension of proceedings until the higher court has ruled on the petition.
- In the Phantom Jobs Case, a defendant presented a recusal petition on November 27, 2015. The judge rejected the petition, sent it to an appellate court for review, and suspended proceedings in the case. The appellate court rejected the recusal on March 28, 2016. A defendant presented an amparo petition about that decision, and the Supreme Court finally rejected the amparo in February 2017. In total, the recusal had held up the case for more than 14 months.
- In the Impunity Law Firm Case, two defendants presented recusal petitions against a substitute judge on November 7, 2016. Two days later, the judge rejected the petitions and sent them to an appellate court for review, suspending proceedings in the case. The appellate court did not hand down a decision until January 26, 2017. This stalled the case for two-and-a-half months.
5) Judges fail to reschedule suspended hearings in a timely manner
Even when a suspension or pending motion is resolved and there is no obstacle to continuing proceedings in a case, judges sometimes schedule hearings for a date several months in the future. This compounds the already considerable delays caused by amparo and recusal petitions, among others.
- In the La Línea Case, the preliminary hearing planned for September 28, 2015 was suspended. The judge scheduled a new preliminary hearing for March 28, 2016—six months later.
- In the Impunity Law Firm Case, the judge suspended the preliminary hearing scheduled on May 31, 2017 and re-scheduled for August 3, 2017—two months later.
- In the Genocide Case, a new trial court was appointed to try the case in June 2013, but that court took until October 2013 to schedule the start of the trial for January 2015—a year-and-a-half after it initially received the case.
6) Defense lawyers exploit the judiciary’s failings with dilatory tactics
Some defense lawyers take full advantage of the opportunities for delay and disruption that the court system’s dysfunctional handling of motions and petitions affords them. As noted above, the Inter-American Court of Human Rights denounced this problem in its rulings on the Myrna Mack and Dos Erres Cases, concluding that the “indiscriminate filing” of amparo petitions had been used by defendants to delay criminal proceedings. More recently, Constitutional Court President Francisco De Mata Vela told Human Rights Watch: “Some defendants present amparo petitions to try to hinder the ordinary proceedings without there being a provisional amparo. In practice, the amparo has been misused.”
In the cases documented in this report, Human Rights Watch found multiple instances in which defense attorneys filed motions that—given the substance, timing, or other factors—appeared to be aimed at delaying court proceedings.
- In the Phantom Jobs Case, a defendant filed a petition for recusal of the judge (who had been sitting on the case for more than a year) only three days before the preliminary hearing was scheduled to take place.
- In the Impunity Law Firm Case, a defendant changed lawyers less than two weeks before the preliminary hearing was scheduled. The new lawyer then filed a recusal petition against the judge claiming “grave enmity.”
- In the Blanco Lapola Case, defendants repeatedly filed recusal petitions against the same judge—in April 2012, February 2013, April 2013, and October 2013—utilizing the same arguments that had already been rejected by the courts.
In most cases it is impossible to know for certain what motivated the defense attorneys to file a questionable appeal. However, in the Genocide Case, noted below, one of the defense attorneys, Francisco García Gudiel, boasted in an interview for a documentary film that he had intentionally sought to manipulate the trial court by seeking a suspension to allow time for preparation that he did not need, and by seeking to provoke a conflict with the presiding judge so as to disrupt the proceedings. García Gudiel boasted that the presiding judge had “dug her own grave with the shovel” he had given her: by having allowed him to represent Ríos Montt, he could file the actions that eventually suspended the trial.
7) Judges and lawyers are not held accountable for delays
Guatemalan law allows the courts to impose a monetary fine on lawyers who file frivolous or “notoriously inadmissible” amparo petitions. However, the fine for each instance can be no more than 1000 quetzals (US$135), an extremely modest sum for attorneys representing wealthy clients. And the majority of these fines are never paid, according to the president of the Constitutional Court.
The Constitutional Court publishes the names of lawyers who have not paid their fines for filing frivolous amparo petitions. At the time of writing, 3,175 lawyers had not paid the fines imposed by the Constitutional Court. One lawyer owes the Court more than 102,000 quetzals (US$14,000). In total, more than 9 million quetzals (US$ 1.2 million) in fines remain outstanding. Given that the maximum amount of a fine is US$135, this number gives an impression of the magnitude of the problem.
Judicial independence is a cornerstone of the rule of law, and it is essential that judges be able to perform their functions without undue pressure or having to fear for their jobs. Likewise, lawyers need to be able to defend their clients to the best of their ability. Nevertheless, both judges and lawyers have an obligation to perform their functions within the limits of the law and the code of ethics of their profession. Participating in, or condoning, the willful disruption, delay, or obstruction of judicial proceedings violates this obligation.
Judicial delays are largely condoned in Guatemala, according to nearly all judges, prosecutors, jurists, and lawyers interviewed by Human Rights Watch. The president of the Constitutional Court, for example, told Human Rights Watch that “there are no consequences for judges who do not comply with deadlines.”
In Guatemala, the Council on the Judicial Career (Consejo de la Carrera Judicial)—an autonomous body within the judiciary—is in charge of the supervision, evaluation, and discipline of judges and judicial functionaries. 
Information from the Disciplinary Board of the Judiciary (Junta de Disciplina Judicial), one of the auxiliary bodies of the Council, shows that in 2016, 111 complaints were filed against judges for allegedly unjustified delays. Of those 111 cases, 100 were dismissed and in 11 cases, hearings were held. After those 11 hearings, eight cases were dismissed; in only three of the 111 cases were the judges found to have been responsible for undue delays. Their only sanction was a written reprimand (amonestación escrita). In the five years prior (2011-2015), there were 527 complaints filed against judges for delays. The Disciplinary Board applied sanctions in 15 of these cases, ranging from written reprimands to suspensions without pay of up to 20 days.
Human Rights Watch is not in a position to assess the Disciplinary Board's rulings in these cases. Nonetheless, the results suggest several possible conclusions. One is that the Disciplinary Board is not sanctioning judges who are indeed responsible for causing unjustifiable delays—a conclusion that is supported by the strong consensus Human Rights Watch found among lawyers and justice officials (including the President of the Constitutional Court) that such unjustifiable delays are commonplace. Another possible conclusion is that the Disciplinary Board was right to determine that, in the vast majority of cases brought before it, the judges have reasonable grounds for justifying their failure to meet deadlines. One such justification offered by multiple judges interviewed by Human Rights Watch is that judges are assigned caseloads that are too heavy for them to be able to meet all their deadlines. Yet, if indeed the delays are caused by factors beyond the judges' control, that judiciary bears responsibility for addressing these factors and ensuring that judges are able to meet their legally-mandated deadlines.
Human Rights Watch examined five ongoing criminal prosecutions alleging egregious abuses of power that are currently being co-prosecuted by the Attorney General’s Office and CICIG, as well as a sixth—the Genocide Case—that does not involve CICIG participation. All six cases have been plagued by unreasonably long delays.
Blanco Lapola Case
In 2012, the Attorney General’s Office and CICIG brought charges against Marlene Blanco Lapola, a former director of the National Police and deputy interior minister, for her alleged involvement in the creation of criminal groups inside the National Police and the ministry, and for allegedly ordering the extrajudicial execution of three people. More than five years later, her case has yet to go to trial.
According to the prosecution, Blanco Lapola—who served as a director of the National Police between September 2008 and June 2009 and then as a deputy interior minister until June 2010—created a criminal group composed of elite police forces and, in 2009, ordered them to kill three people. (The alleged victims were suspected of extorting entrepreneurs in the transport sector; however, the investigation by CICIG and the Attorney General’s Office turned up no evidence that the three were responsible for the extortions.) Before each assassination—according to the prosecution—Blanco Lapola instructed the group’s coordinator to find those responsible for the extortion and kill them and afterwards, received a report back from him about what happened in each case.
Blanco Lapola was arrested in March of 2012, along with three other suspects—a former police commissioner and two former police officers—who had allegedly participated in the assassinations. Two others were arrested later, and two remain fugitive. Although prosecutors presented their accusation in June 2012, the preliminary hearing to determine if the case will go to trial had not taken place as of September 2017. This delay has been caused by a combination of dilatory tactics by the defense and the repeated failure of judges at each stage of the process to meet legally-established deadlines for reaching decisions.
Since the proceedings started, the case was stalled for almost three years as a result of recusal petitions. Blanco Lapola’s defense attempted to remove the judge on five separate occasions, repeatedly using the same arguments that the court had previously rejected. While all five motions were eventually rejected, higher courts took months to do so even though Guatemalan law requires these decisions to be made in five days.
For instance, on April 4, 2012, two weeks after Blanco Lapola’s detention and prior to the hearing to determine whether the case would be sent to trial, she sought to remove the judge, claiming that the fact he had imposed pretrial detention on her was evidence of bias. Her petition also offered as evidence of bias the fact that the judge had performed a procedure to record evidence without the defense being present. An appellate court rejected these arguments as “completely inadmissible.” The court held that pretrial detention had been justified, that the procedure to record evidence had been performed according to law, and that the defense had had the opportunity to review and challenge these proceedings. The judge took 20 days to send the case to the appellate court, and the appellate court then took until July 2—a month-and-a-half, instead of the five days established by law—to reach a decision. The official notification of this decision then took almost three more months—until September 27—even though Guatemalan law requires that parties be notified of judicial decisions within 15 working days.
The first petition for recusal eventually ended up causing a 10-month delay, given that the court only scheduled the preliminary hearing—to determine whether the case would go to trial—for February 3, 2013. But Blanco Lapola’s lawyers failed to appear that day, and the court rescheduled the hearing for three weeks later. This time the lawyers showed up, only to file two new motions to remove the judge from the case because, they again alleged, the fact that the judge imposed pretrial detention on her was evidence of bias, and they alleged that they saw seen lawyers from CICIG and the Attorney General’s Office near the judge’s office the day before the hearing. The judge suspended proceedings and forwarded these motions to an appellate court, but it took two months for him to do so. The appellate court rejected the motions as “inadmissible”: the defense lawyers had made use of a type of motion, called an “impediment,” that can only be employed by a judge. If the defense wished to remove the judge, the court ruled, they needed to file an actual recusal petition. Although these motions should have been decided within five days, the appellate court took more than two months to reject them and then another month to officially notify its decision. As a result, the case was stalled again until August.
In the meantime, on April 1, 2013, Blanco Lapola filed a fourth request to remove the judge, repeating the exact same arguments from the original petition that had previously been rejected by the appellate court, and adding as further evidence of bias the fact that the judge had sat, several years prior, on a case involving three of her co-defendants in the current case. She was joined on this petition by one of these co-defendants, Israel Chávez y Chávez. Both the judge and the appellate court rejected the recusal petition—but, once again, only after a delay. Although it should have taken only about five days to reach that decision, it took more than three months to do so.
The lawyer representing Blanco Lapola and Chávez y Chávez then filed yet another petition to remove the judge—their fifth—on October 10, 2013, making the same arguments that had already been repeatedly rejected. On this occasion, the appellate court accepted Chávez y Chávez’s petition and ordered the case to be transferred to another court on October 30, 2013. CICIG and the Attorney General’s Office filed an amparo petition to appeal this judgment, but the Supreme Court sided with the defendants. The prosecution then appealed to the Constitutional Court, which overruled the Supreme Court, finding that the Supreme Court’s decision was not supported by any evidence.
That ruling returned the case to the original court—with the original judge—but only after almost two years. The Supreme Court had taken six months to issue a ruling, which it should have issued in a maximum of 31 days. The Constitutional Court took a full year, when it should have taken only 31 days. And it then took another two months to reject Blanco Lapola’s request for clarification, although it should have done so within days.
In the meantime, after the Supreme Court’s ruling in October 2013, the pretrial proceedings in the case against Blanco Lapola had been forwarded to another judge. The only action this new judge took was in October 2014, when she held a hearing on Blanco Lapola’s pretrial detention. She ruled that Blanco Lapola should be released, arguing that the prison she was detained in was overcrowded and that, because the Attorney General’s Office already had presented its accusation, there was no longer any risk that Blanco Lapola might obstruct the case. CICIG and the Attorney General’s Office filed an amparo petition in January 2015, which the Supreme Court granted in October 2015—nine months later (although it should have only taken 31 days) and a year after Blanco Lapola had been released, Blanco Lapola appealed the Supreme Court ruling to the Constitutional Court on October 7, 2015.
The Constitutional Court took until July 25, 2017—almost 22 months—to reject Blanco Lapola’s appeal, even though, according to the applicable deadlines, it should have done so in about a month. While the pending amparo petition should not have stopped other proceedings in the case, the judge did not schedule any hearings in the case because there had not been a final resolution about the amparo petition. It took until July 10, 2017, after the case had been transferred to a new court to alleviate the workload of the original judge, for a hearing to be scheduled—one in which it would be determined whether the case would go to trial. However, Blanco Lapola’s defense lawyer, Francisco García Gudiel (who defended Ríos Montt in the Genocide Case), did not appear in court. This created another delay of at least three months, after the make-up hearing, originally scheduled for August 7, 2017, had to be postponed three times. At the time of writing, the judge had scheduled the hearing for November 13, 2017.
Corrupt Military Officers Case
In 2001, eight former military officers embezzled more 470 million quetzals (US$73 million) from the Guatemalan Ministry of Defense, according to CICIG and the Attorney General’s Office. Among the eight were the son and the lawyer of former dictator Efraín Ríos Montt. Prosecutors maintain that these officials, who all worked in the ministry’s financial department, introduced budget modifications to inflate the ministry’s budget and withdrew this extra money in cash. They are accused of having hidden the evidence by classifying the documents authorizing the withdrawals as “military secrets.” In 2005, the Attorney General’s Office managed to declassify these documents and uncover the evidence that the case against the defendants is largely built on, along with audit reports from the Government Accountability Office (Contraloría de Cuentas) and from forensic experts. The suspects were arrested in March and April of 2009. More than eight years later, the case has yet to go to trial.
The defense’s attempts to separate CICIG from the case, claiming the issue did not fall within CICIG’s mandate, stalled proceedings for about two years. Then, the judge who initially presided over the pre-trial proceedings ruled in 2013 against sending the case to trial—a ruling later overturned and strongly criticized by the Supreme Court. Yet in the review process that resulted in the overturning, the appellate and Supreme Court took much longer than the law provides to reach a decision.
After the judge of first instance dismissed the case in September 2013, the Attorney General’s Office and CICIG appealed that decision to an appellate court, which rejected their appeal and took six months—until April 2014—to do so. The prosecution then appealed this ruling to the Supreme Court, which overturned the dismissal, taking another six months to do so. The Supreme Court decision found that the first instance judge had failed to “fulfill his obligation to perform a legal, analytical, objective, and concrete study of the evidence that sustained the accusation formulated by the Attorney General’s Office.” The Supreme Court then ordered the appellate court to revise its ruling on the appeal, but this court waited four months to do so—until February 2015—and then another month to order the first instance judge to execute that decision, which it did not do until April 2015. In other words, it took a year and seven months before the judge of first instance revoked his initial decision to dismiss the case.
In the meantime, in March of 2015, several defendants had filed amparo petitions against the appellate court’s revised decision to order the judge of first instance to open criminal proceedings. Seven months later, in October 2015, the Supreme Court ruled in favor of the defendants because it considered that the appellate court had “insufficiently detailed” the accusations against the defendants. CICIG appealed that decision successfully before the Constitutional Court, which ruled that the appellate court had provided sufficient detail and arguments in its ruling, and that the defendants’ amparo petition had been “manifestly unfounded.” However, it took the Constitutional Court another year-and-a-half, until May 2017, to reach that decision. The case should now be reopened, but in October 2017, the judge of first instance had not taken any action to do so.
In 1999, the (UN-—sponsored) Guatemalan truth commission concluded that the Guatemalan army committed hundreds of massacres and “acts of genocide” during the dictatorship of General Ríos Montt in 1982 and 1983. The Attorney General’s Office opened an investigation in 2010. Mauricio Rodríguez Sánchez, who was director of military intelligence when the killings occurred, was arrested in 2011. Efraín Ríos Montt was arrested the following year. Both were charged with genocide and war crimes (crímenes contra los deberes de la humanidad) for their role in 105 massacres in which 1,771 Mayan Ixiles were murdered. The case went to trial in March 2013. Seven weeks later, Ríos Montt was convicted and sentenced to 80 years in prison. Rodríguez Sánchez was acquitted. However, the Constitutional Court annulled the trial 10 days after the verdict was issued and ordered a new trial. In October 2017, the trial has still not been finalized.
The 2013 trial was marred from the beginning by dilatory tactics by the defense. On the first day, the lawyers who had been representing Ríos Montt throughout the process did not appear in court. Instead, another lawyer, Francisco García Gudiel, announced he had replaced the original defense team, and he requested a five-day suspension of the trial so he could familiarize himself with the case—although he later admitted he did not need it. The tribunal denied this request: he should have been prepared when he agreed to take up representation, the presiding judge, Yassmin Barrios, told him. García Gudiel then sought to remove Barrios from the case, claiming that a “grave enmity” existed between the two of them. He also, simultaneously, sought removal of another of the three judges on the panel, Pablo Xitimul, objecting to the judge’s participation because, he claimed, he and the judge were friends. The court rejected the recusal but, to avoid any appearance of conflict, removed García Gudiel from the case and instructed him to leave the courtroom.
Ríos Montt appealed García Gudiel’s removal, but an appellate court provisionally rejected his appeal a week later and proceedings in the criminal case continued. In the following weeks, the trial court would hear 133 witnesses, 90 of whom were Maya Ixil victims who testified about crimes committed by the armed forces under Ríos Montt.
Yet a month into the trial, the appellate court changed its earlier decision and instructed the trial court to reverse its expulsion of García Gudiel. The trial court complied, reinstating García Gudiel for the final days of the trial—which ended on May 10 with a guilty verdict for Ríos Montt.
Ten days after the court convicted Ríos Montt, the Constitutional Court effectively annulled the verdict, ruling that that the trial court had not properly implemented the appellate court’s instructions (the appellate court itself had previously concluded that it had). The Constitutional Court ordered that the trial be restarted—by a new court—at the point where it had been on April 19, 2013—the day the original court should have suspended proceedings. Since then, the process has been mired in interminable delays for more than four years.
García Gudiel later boasted in an interview for a documentary film that he had orchestrated this outcome by manipulating the trial court. He had in fact been fully prepared for the trial on the first day when he requested a five-day suspension, he said in the interview, and anticipated that the suspension would be rejected. García Gudiel also said that the defense team knew that if the court would allow him to participate in the trial, he would have grounds to petition to recuse the judges and thus suspend proceedings. By initially allowing him to represent Ríos Montt, García Gudiel said, the presiding judge had opened the possibility for him to file the motions that would eventually nullify the trial. She had “started to dig her own grave” with the shovel he had given her, he boasted.
More than four years have passed since a new trial was ordered by the 2013 Constitutional Court ruling, but the proceedings have been repeatedly delayed and stalled. A new court was assigned to take the case on June 4, 2013, but that court took until October 30, 2013 to schedule the new trial for January 5, 2015—a year and a half after the case had been assigned to it, claiming that its existing caseload prevented it from turning to the genocide case—perhaps the most important court case in the country’s history—any sooner.
When the trial finally began on January 5, 2015, Ríos Montt failed to appear. His defense team said he was too sick to attend the hearing, but after the court threatened sanctions if he did not show up, he arrived within an hour. Then Ríos Montt’s defense petitioned for recusal of one of the judges, Jeannette Valdés, on the grounds that her 2004 academic thesis about the crime of genocide constituted a pre-formed opinion about Ríos Montt’s culpability. The defense, however, had known that this judge would be on the case for more than a year—and Guatemalan law establishes that recusal petitions must be submitted within five days of the trial date being put on the calendar. Nevertheless, the trial court accepted the recusal petition and suspended proceedings, and an appellate court confirmed the removal of the judge in March. A new judge was appointed, and the trial was scheduled to resume in July 2015—more than six months after the initial rescheduling.
However, on the day the trial resumed, the defense claimed that Ríos Montt’s mental health was so precarious that he would not be able to stand trial. The court ordered a psychiatric evaluation. On August 18, the court decided that the trial could continue, but that because of Ríos Montt’s deteriorated mental health, he was unfit for a regular trial and that he would be subject to special proceedings in which the court would not make a determination about his guilt nor apply a prison sentence. Instead, it would only consider whether his condition warranted coercive measures, such as internment in a psychiatric clinic. These proceedings would take place behind closed doors, without Ríos Montt’s presence being required. Victims could attend, but not the press. The prosecution appealed this decision, but the court rejected their appeal a week later and set a new trial date for January 2016, producing another five-month delay.
In September, the prosecution filed an amparo petition against that decision. They accepted that the case against Ríos Montt would have to take place behind closed doors, but, they argued, holding the trial against Rodríguez Sánchez behind closed doors would violate the victims’ right to justice. They claimed that the cases against Ríos Montt and Rodríguez Sánchez should be separated, so that at least Rodríguez Sánchez’ trial would be public.
The January 2016 court date was suspended because the amparo petition remained pending, but the trial eventually restarted on March 16, 2016—two months later—even though the petition had still not been resolved. On May 6, 2016, the appellate court finally decided on the amparo petition from the prosecution—more than seven months later, even though it should have only taken a maximum of 31 days—and separated the cases against Ríos Montt and Rodríguez Sánchez. Rodríguez Sánchez appealed the decision, and the Constitutional Court ruled on May 18, 2017—a year later, instead of the 31 days the law provides as a maximum—to separate the cases. The Court also determined that the trials should resume from their procedural situation on May 4, 2016. In October 2017, five months later, the hearings restarted. Ríos Montt and Rodríguez Sánchez remain under house arrest.
La Línea Case
In April 2015, a major corruption case involving the customs authority shook Guatemala. Evidence emerged that a criminal network had defrauded the state by collecting bribes instead of customs duties from importers. Revelations that high-level authorities might be involved sparked mass protests that led to the resignation of Guatemala’s president and vice president. Thirty people have been charged in the case. More than two years after the case got underway, in October 2017, the case has not gone to trial yet.
In an operation that started in the early morning of April 16, 2015, police arrested 22 people, including the director and a former director of the national tax authority, the supervisor and directors of the customs authority, and direct operators of the criminal network. The private secretary of the vice president was also a suspect, but at the time, he remained at large.
These arrests were the result of an eight-month investigation that included the interception of 66,000 phone calls and 6,000 emails, the surveillance of the suspected leaders of the crime ring, and an extensive analysis of documents. Investigations by CICIG and the Attorney General’s Office uncovered evidence that an external criminal network created a corruption ring inside the customs authority. Investigators concluded that import companies would call operators of the criminal network by telephone, “la línea,” and would arrange to pay the criminal network a bribe that was lower than the customs duties they would have paid the state. Members of the criminal network then allegedly divided the money among themselves. According to estimates by Guatemala’s tax authority, the corruption ring defrauded the state of at least 27 million quetzals (US$3.7 million) in 2014 and 2015.
Initially, investigators believed that the private secretary of the vice president was the leader of the crime ring. However, in wiretaps presented during the first hearing in the case, on April 17, 2015, La Línea operators mentioned receiving orders from “the President,” “the Lady,” “Number 2,” and “The R,” which suggested that the then-president and vice president might be directly involved in this corruption ring. The news of the possible involvement of the leaders of the country in the corruption scheme sparked massive street protests in the capital. These eventually led to the resignation of the vice president in May 2015, and of the president in September 2015.
On September 28, 2015, one of the alleged operators of La Línea, Estuardo González, who later became a collaborating suspect (colaborador eficaz), provided more incriminating information. He said he was the one who referred to the president and vice president as “Number 1” and “Number 2” (as heard on the wiretaps) for the purpose of dividing the corruption money, and that he distributed the money that the crime ring brought in, 50 percent of which went to the president and vice president.
The investigations in the La Línea case led to the discovery of other high-level corruption cases: alleged corruption in the construction and operation of a new container terminal in the port of Puerto Quetzal, evidence of illegal financing of the former president’s Patriot Party political campaign by media companies and other businesses, and allegations that cabinet ministers pooled their money, also allegedly obtained through corruption, to buy the then-president and vice president expensive birthday gifts—like a beach house, a yacht, and a helicopter. Another case involved allegations of judicial corruption: three La Línea suspects were accused of bribing a judge in order to be conditionally released from prison. All these cases are currently being prosecuted.
The La Línea case has been plagued by delays resulting from the tactics of the defense team, and protracted delays by the court in scheduling new hearings. As a result, the preliminary hearing—in which the judge will determine whether the case will be sent to trial—only started on July 24, 2017—more than two years after the initial arrests.
The preliminary hearing was originally scheduled for early August 2015, but was then rescheduled three times—due first to the illness of a prosecutor, then the illness of a defendant’s lawyer, and then an appeal that had not been resolved yet—producing a nearly eight-month delay.
Three weeks before the hearing was finally going to take place in late March 2016, one of the defendants filed a motion to remove the General Prosecutor’s Office (Procuraduría General de la Nación) as a co-prosecutor in the case. Being a co-prosecutor allows affected people or institutions to participate in the case alongside the Prosecutor’s Office to ensure that their interests are taken into account. The General Prosecutor’s Office functions as the representative of the state (similar to the Solicitor General’s Office in the United States), which had been harmed when the La Línea crime ring defrauded it of customs duties and which has an interest in recovering its losses. A series of rulings and appeals resulted in the General Prosecutor’s Office being able to participate as an aggrieved party.
While this petition was being decided, the preliminary hearing was suspended for another month-and-a-half. After it was resolved, in April 2016, the court rescheduled the hearing for October 2016, adding another six-month delay. On the day the hearing was to take place, October 10, the lawyers of former President Pérez Molina did not show up in court. The hearing had to be rescheduled once again, this time for the end of January 2017—another three-and-a-half month delay. By this time, almost a year-and-a-half had passed since the preliminary hearing had first been scheduled. However, another series of delays would follow.
On the day of the hearing, January 30, the lawyers of former Vice President Roxana Baldetti let the judge know their defendant had to appear in a different case that day, and the hearing was delayed another week. On the new day of the hearing, February 6, Perez Molina’s defense filed a petition for recusal of the judge, Miguel Ángel Gálvez, who had been presiding over the case for more than a year. The grounds for questioning Judge Galvez’s impartiality were dubious: first, that he had already convicted another suspect in the case (which was untrue); second, that he had been named “Person of the Year” by a Guatemalan newspaper because of his performance in the early stages of this high-profile case; and third, that he had referred to the president’s alleged participation in the corruption scheme when another defendant provided her first declaration.
Judge Gálvez rejected this recusal petition and proceeded with the preliminary hearing for five days until, following a ruling by an appellate court that required holding another hearing to assess whether the charges against Pérez Molina had to be modified, the judge annulled the hearing and scheduled a new one. On the day the new hearing was to begin, February 21, Pérez Molina’s defense re-submitted their recusal petition. This time Judge Gálvez passed the petition to an appellate court for review. That court also rejected it, but did so two months later, instead of within the five days required by law. Proceedings could then resume, but Judge Galvez scheduled the next hearing for July 17—three months later. On the day the hearing was to take place, several defense lawyers failed to show up, forcing the judge to reschedule it yet again, for July 24, 2017. On October 27, 2017, the judge concluded that 28 of the 30 suspects, among whom the former president and vice president, should go to trial. At the time of writing, it was unclear whether any of the parties would appeal this decision. No trial date had been set yet.
Impunity Law Firm Case
As police were making the first arrests in the La Línea case in the early morning of April 16, 2015, one of the alleged leaders of the crime ring called another on his cell phone. The caller was Francisco Javier Ortiz Arriaga, a former customs official. After police presented him with an arrest warrant in his home, but before they took him away, Ortiz called Luis Alberto Mendizábal Barrutia, from whose business the La Línea crime ring allegedly operated. An order for the arrest of Mendizábal was issued at a later date. During the call, Ortiz told Mendizábal the name of the judge who had signed his detention order.
That judge, Marta Sierra de Stalling had been on the bench for 28 years and was well-connected within the judiciary: her brother, José Arturo Sierra, is a former president of the Supreme Court and of the Constitutional Court, and her sister-in-law, Blanca Stalling, was the president of the Criminal Chamber of the Supreme Court (until her dismissal in May 2017 after being indicted for allegedly pressuring another judge to conditionally release her son from pretrial detention, who is facing corruption charges).
Mendizábal allegedly replied to Ortiz that he was already making arrangements with his lawyer, who “had the connections” to make sure that Judge Sierra de Stalling would not impose pretrial detention on Ortiz and two other alleged accomplices in the crime ring. Mendizábal reportedly added that he could “not tell over the phone what has been done, but [that he was] fully confident” that things would work out. They allegedly planned to use a law firm as an intermediary. Prosecutors say that Mendizábal insisted that Ortiz get the money ready, in cash, as soon as possible to pay the lawyers in this firm and the judge. In the following hours, there were several more conversations between Mendizábal and Ortiz, as well as between Mendizábal and Ortiz’ daughter, about the need to withdraw sufficient money.
All these conversations were recorded by the Attorney General’s Office, which had wiretapped Mendizábal’s phone as part of the investigation of La Línea. Prosecutors eventually obtained bank statements showing that on the day of Ortiz’s conversation with Mendizábal, as well as the next day, Ortiz’ family allegedly made withdrawals from the bank totaling more than US$250,000. Investigators also obtained cell phone location records that they say place Judge Sierra de Stalling’s son at the same location as members of the law firm that Mendizábal indicated would handle the bribe. A few days afterward, on April 21, Sierra de Stalling imposed house arrest instead of pretrial detention on Ortiz and two other alleged leaders of the crime ring.
One of the three alleged ring leaders granted house arrest, Estuardo González, eventually entered a plea bargain arrangement (colaboración eficaz) and affirmed that they had bribed Judge Sierra de Stalling with the assistance of the law firm recommended by Mendizábal. Ten people were charged—including Judge Sierra de Stalling, her son, Ortiz, and the lawyers in the firm that had allegedly arranged the payments—which came to be known as the “Impunity Law Firm.” Mendizábal remains a fugitive.
It took until August 3, 2017—more than two years—for the preliminary hearing, to determine whether the case would go to trial, to start.
Five recusal petitions and the repeated rescheduling of hearings were to blame for this delay. Less than two weeks before the preliminary hearing was scheduled to start, on January 15, 2016, Sierra de Stalling replaced her lawyer with a new one, who then petitioned the sitting judge to recuse himself on the grounds that there existed a “grave enmity” between himself and the judge, alleging that the judge had recused himself for that reason previously. Both the judge and an appeals court accepted the recusal. The appeals court took six weeks to notify the first instance court of this decision. In mid-March, the case went to a new judge, who recused himself because he was friends with one of the suspects, and then to a third judge in April—more than three months after the initial motion was presented.
Two further recusal petitions delayed the case for another four months. In November, the defense team sought the recusal of a substitute judge—who was filling in while the original judge was on vacation—on the grounds that they had “heard in the corridors of the tribunal” that the substitute was biased. The judge rejected the petition for recusal, as did an appellate court, but only after two-and-a-half months (instead of the five days the law provides as a maximum)—a full month after the main judge had returned from vacation. Two days after the appellate court transmitted notification of its rejection of the petition, the original judge (back on the case) recused himself on the grounds that a newspaper column had suggested he might be biased. He sent this recusal for consideration to an appellate court, which rejected the recusal and returned the case to the judge, but only after another six-week delay, when it should have only taken 48 hours. The case was returned to the court in mid-March 2017. The preliminary hearing would be held on May 31, 2017, but on that day, upon request of the defense attorneys, the judge rescheduled the hearing for August 3, 2017, producing another two-month delay.
Parallel to these proceedings, in June 2016, the attorney general petitioned the Supreme Court to transfer the case from the ordinary pretrial court to a High Risk Court, which handles cases that may involve heightened security risks for those involved. Making this determination should be a quick process: the law requires the Supreme Court’s Criminal Chamber to hold a single hearing and then immediately decide whether to grant the request or not. However, it took more than a year for this hearing to be held, as each time it was about to take place, one of the defendants petitioned to remove one of the justices from the Criminal Chamber (a different defendant and a different justice each time).
The initial hearing was scheduled for July 19, 2016. Two days before, a lawyer sought the recusal of a justice because he alleged that that justice had fired him from a job several years before, thus producing “grave enmity.” Yet the only evidence the defendant presented was a letter showing that he had resigned from that previous job, not that he had been fired. Both the justice and the court rejected the recusal on July 28 and rescheduled the hearing for September 29—two months later. Then, on September 17, another defendant filed a petition for recusal of another justice because she had previously worked for CICIG. The justice rejected the petition but decided to remove herself from the case anyway. Official notification of this recusal took more than six months—until January 27, 2017. The court then scheduled the hearing for March 23—two months later. But two days before the hearing, yet another defendant presented a recusal petition against a third justice because in 2015, that justice had sat on a commission that evaluated whether CICIG’s mandate should be extended. This recusal was rejected a month later and the hearing was planned for June 22, adding a delay of two months. Then, on June 20, Sierra de Stalling presented a recusal petition against a fourth and fifth justice, alleging that they had expressed an opinion in this case because they had voted in favor of stripping her immunity so she could be investigated. This recusal was rejected on July 4—two weeks later.
More than a year after the attorney general had filed her request for the case to be transferred to a High Risk Court, the hearing finally took place. The Criminal Chamber rejected the request, and CICIG’s and the Attorney General’s Office’s subsequent appeal of that decision was also rejected. The Attorney General’s Office presented an amparo petition against that decision in August 2017, which was still pending in September 2017. The case remained before the regular court.
On August 16, 2017, the judge decided not to send the case to trial, ruling that the prosecution had not presented sufficient evidence to prove the suspects’ involvement in the alleged criminal acts. The judge ordered the Attorney General’s Office to present new accusations for the charges of traffic of influences (tráfico de influencias) and bribery (cohecho activo y pasivo), and scheduled the hearing to discuss that new accusation for November 28, 2017. CICIG and the Attorney General’s Office presented an appeal against the judge’s decision. On October 10, one of the suspects sought the recusal of a judge from the court that would consider the appeal. The suspect alleged bias because the judge had received reimbursements from the Supreme Court, which had rejected the suspect’s earlier amparo petition in the case. Moreover, he alleged that the judge’s appointment, as a substitute judge to that appellate court, had been irregular. The hearing to consider the recusal was scheduled for November 6—almost a month after the recusal had been presented, instead of the maximum of five days established by law. The appeal remained pending.
Phantom Jobs Case
In June 2015, the Attorney General’s Office and CICIG announced they were pursuing corruption charges against a former president of Congress, Pedro Muadi. According to prosecutors, the congressman had run a scheme in which his office created “phantom” jobs so he could pocket the wages of the people who supposedly occupied them. Muadi’s secretary and chief of security were tried and convicted for their role in the embezzlement scheme in June 2016. Yet a trial against Muadi himself, as well as the 30 other suspects, has still not started.
Muadi was a member of former President Otto Pérez Molina’s Patriot Party (Partido Patriota). When he took office in 2012, it was his first term as a congressman. He was president of Congress in 2013.
Between June 2013 and June 2015, when CICIG and the Prosecutor’s Office asked the Supreme Court to strip Muadi’s immunity, Muadi’s office allegedly kept 30 people on the Congressional payroll who never performed any work for Congress at all or were already paid by another employer; they had only lent their name and signature for these contracts with Congress. Muadi’s secretary—who worked for his private company—deposited the wages for these “phantom” workers, who had positions in Muadi’s office, the presidency of Congress, or the congressional delegation of the Patriot Party, in the bank accounts of corporations allegedly owned by the congressman and paid the “phantom workers” a relatively small amount of that money in cash. With this scheme, prosecutors allege that Muadi oversaw the embezzlement of more than 4.7 million quetzals (US$645,000) from the Guatemalan Congress in two years.
The investigation of the corruption ring allegedly led by Congressman Muadi turned up evidence implicating other members of Congress in similar embezzlement schemes involving “phantom jobs.” Sixty-five people have been charged, including nine former congressmen who made up Congress’ governing board (junta directiva) in 2014 and 2015 and a former director-general of Congress. Two current and two former members of Congress are at large, and one still has immunity. They are from at least six different political parties.
In Muadi’s case, two people have already been convicted: his secretary and his chief of security were given prison sentences of 17 and 11 years, respectively. Proceedings against them started right after their arrest in June 2015, the trial commenced in January 2016, and the two defendants were convicted in June 2016.
Muadi was prosecuted separately from these two because it took the Supreme Court from June to October 2015 to lift the immunity that he enjoyed as a member of Congress. An additional 30 suspects, whose alleged involvement emerged in subsequent investigations, have been named as his co-defendants. These suspects include Muadi’s staff that prosecutors accuse of having helped execute this scheme, as well as the people who allegedly signed the contracts for these “phantom” jobs.
The prosecution of Muadi and these 30 has been stalled in the pre-trial phase due largely to dubious motions filed by the defense and the subsequent delay in deciding them. In one petition to recuse the judge filed in November 2015, Axel Pérez, a defendant who worked for Muadi and cashed various checks for the “phantom” jobs, questioned Judge José Eduardo Cojulun’s impartiality on the grounds that the judge had refused to release him from pretrial detention and had allegedly granted most motions presented by CICIG. The judge rejected the petition and sent the case to an appellate court, which rejected the appeal but took four months to do so, despite the fact that Guatemalan law required it to issue a ruling in five days. Two defendants filed amparo petitions before the Supreme Court in May 2016, challenging the appellate court’s decision. Under Guatemalan law, the Supreme Court should have resolved it within a maximum of 31 days. Instead, more than nine months passed before the Supreme Court issued a ruling, in February 2017, rejecting the petition. In all, the recusal petition held up the case for a year and three months.
The preliminary hearing was rescheduled for March 2017, but just days before it was finally to take place, Muadi’s lawyer submitted a new petition to recuse Judge Cojulun. The grounds for questioning Cojulun’s impartiality were, first, that the judge had—during the arraignment—asked the prosecution whether it wanted to add any additional charges, and second, that the judge had once denied the defense an extra opportunity to explain something. The appellate court should have reached a decision in five days, but the issue was only resolved two months later, when Muadi’s new lawyer withdrew the petition. It then took the appeals court more than a month to notify the court of first instance, even though this should have been done within five days. Only on June 19 could the case continue. Muadi’s withdrawn recusal petition had stalled the case for another three-and-a-half months.
The preliminary hearing finally started on July 25, 2017. On August 1, the judge decided to send Muadi and the additional 30 suspects to trial. However, on August 18—three days before the final hearing before the pre-trial judge—a defendant presented another recusal petition against Judge Cojulun because he considered that the judge had not sufficiently required the Attorney General’s Office to substantiate the charges against him. The hearing to consider the recusal petition was scheduled for November 13—almost three months after the petition was presented, instead of within the five days established by law. In the meantime, the case remained suspended.
The pattern of repeated, excessive delays documented in the six cases described above were also evident in previous efforts to prosecute cases involving human rights violations, including the extrajudicial killing of anthropologist Myrna Mack and the Dos Erres massacre. In both cases, the Inter-American Court of Human Rights found that the Guatemalan state had violated the right to judicial protection and a fair trial.
Myrna Mack Case
Myrna Mack was a Guatemalan anthropologist who was murdered on September 11, 1990 by agents from the Presidential General Staff, a military intelligence unit. While an army sergeant was convicted of the crime in 1993, it would take 12 years to prosecute a senior officer for ordering the assassination.
In February 1993, the direct perpetrator of the crime, a sergeant assigned to the Security Department of the Presidential General Staff (Estado Mayor Presidencial), was convicted and sentenced to 25 years in prison. But in that ruling, the case against three higher-level officers who had been charged with ordering and planning the assassination was dismissed for lack of evidence. A year later, this decision was overturned and the case was kept open. However, it would take another eight-and-a-half years for the trial against them to start.
It took the Constitutional Court nine months to decide to keep the case against the defendants open, and another three months to officially notify this decision.In June 1996, the three defendants were charged again, but it took the courts almost two-and-a-half years to decide that the case would be judged in a civilian—instead of military—court and according to the newly adopted code of criminal procedure. The preliminary hearing, in which the defendants were sent to trial again, did not occur until January 1999.
After at least 12 amparo petitions, as well as numerous recusal petitions and ordinary appeals, the case finally went to trial in September 2002—12 years after the assassination, 11 years after the defendants were first changed, and six years after they had been charged for the second time. A month later, in October 2002, the head of the Presidential General Staff’s Security Department was sentenced to 30 years in prison. Two others were acquitted. This ruling was overturned in May 2003, but in January 2004, the Supreme Court confirmed the earlier conviction.
Dos Erres Case
In 1982, Guatemalan army special forces carried out a massacre in the rural community of Dos Erres. According to the 1999 truth commission report, troops executed around 200 civilians, including women and girls who were raped before being killed. The Attorney General’s Office opened a criminal investigation into the case in 1994, and 17 former soldiers were arrested between 1999 and 2000.
The judicial proceedings in the case were marred by obstruction and delays. Between April 2000 and March 2009, the defense presented 33 amparo petitions, in addition to 41 other motions challenging aspects of the proceedings. Many of these motions were heard simultaneously by different courts. However, the resolution of amparo petitions was particularly lengthy: the vast majority took between one and two years to be resolved. Five took more than three years.
The case was also delayed by the failure of the judiciary to rule within the legally-mandated time limits on the applicability in this case of the Law for National Reconciliation, which establishes that state agents can be amnestied for political crimes but not crimes against humanity. It took seven-and-a-half years—even though the law establishes a maximum of 28 working days—for a judge to decide that the law was not applicable.
As a result, it took more than 28 years from the date of the massacre—and 12 years after the first arrests were made—for the case to go to trial. In 2011, four people—three former soldiers and one sub-lieutenant—were convicted. In 2012, another former soldier was convicted. One other former soldier and former dictator Ríos Montt are currently awaiting trial.
Rulings by the Inter-American Court of Human Rights
In its analysis of the Guatemalan court proceedings in the Myrna Mack and Dos Erres cases, the Inter-American Court of Human Rights concluded that the defense used the “indiscriminate filing” of amparo petitions to delay criminal proceedings, and that the amparo petition had become “a factor for impunity.”
The Inter-American Court identified two main reasons for this problem. First, it found that the Amparo Law is overly broad in scope, and criticized the fact that it does not oblige judges to dismiss petitions that do not meet admissibility requirements.
Second, it found that judges “permit and tolerate” the excessive use of petitions and fail to comply with the legal time limits in disposing of them, a situation compounded by how appeals to amparo rulings are processed. The Inter-American Court of Human Rights noted that the judiciary bears responsibility for this problem and singled out the Constitutional Court, for not adequately limiting the misuse of amparo petitions.
In 2009, the court ordered Guatemala to amend existing rules on the use of motions during the criminal process. This has not yet been done. Congress discussed reforms in 2009, but these were not adopted. In 2015, CICIG, the Attorney General’s Office, and the Guatemalan Office of the UN High Commissioner for Human Rights presented another proposal, which was not taken up. In 2017, a group of civil society organizations presented a new proposal to Congress. In September 2017, this proposal was under discussion in Congress.
Guatemalan authorities should take the following actions to strengthen Guatemala’s judicial system in the fight against impunity.
The Guatemalan Congress should reform the Amparo Law to reduce the delays in criminal proceedings caused by the misuse of unfounded amparo petitions. The reform should draw upon the legislative proposal introduced in Congress on May 31, 2017 (originally submitted by Guatemalan civil society organizations in February 2017), with special attention to the following proposals:
- Establish that amparo petitions challenging the acts of judges during criminal proceedings be admissible for review only after the proceedings have concluded with a verdict or dismissal—except in very limited circumstances where the harm alleged by the petitioner would be irreparable if not addressed immediately;
- Grant judges explicit authority to dismiss amparo petitions that fail to meet the basic requirements established by law and by the Constitutional Court;
- Establish a reasonable, fair, and effective system of penalties to sanction lawyers who repeatedly file amparo petitions that unambiguously fail to meet the basic requirements established by law and the Constitutional Court.
The Constitutional Court should take steps to end delays in cases that involve egregious abuses of power by authorities. Specifically, it should:
- Comply with legally-mandated deadlines for the resolution of amparo and other petitions;
- Establish clear, reasonable, and effective guidelines for lower courts to determine the admissibility of amparo petitions;
- Call on lower court judges to uphold the rule that criminal proceedings should only be suspended when a provisional amparo is issued; and
- Enforce reasonable, fair, and effective sanctions for lawyers who repeatedly file egregiously unfounded amparo petitions.
The Supreme Court should take all possible steps to end unreasonable delays in cases that involve egregious abuses of power by authorities. Specifically, it should:
- Comply with the legally-mandated deadlines for the processing and resolution of appeals related to these cases;
- Address the causes of unnecessary bureaucratic delays in criminal proceedings, including the dysfunctional notification system and the lack of standardized rules regarding the presentation of case files; and
- Ensure that the Council on the Judicial Career exercises its authority to impose effective and proportional sanctions on judges and judicial functionaries responsible for egregious and unjustified delays.
This report was researched and written by Mirte Postema, Americas Division consultant. It was reviewed and edited by Daniel Wilkinson, Americas managing director; Christopher Albin-Lackey, senior legal advisor; and Joseph Saunders, deputy program director. Alicia Robinson, Americas Division consultant, provided valuable research support. The report was prepared for publication by Madeline Cottingham, publications coordinator, Fitzroy Hepkins, administrative manager; and Jose Martinez, senior administration coordinator. It was translated into Spanish by Gabriela Haymes. Americas division associates María Barragán-Santana and Delphine Starr provided logistical and editing support.
Human Rights Watch would like to thank each of the judges, prosecutors, investigators, lawyers, and jurists interviewed for this report. A special thanks goes to the judges and judicial functionaries who provided us with essential access and information about the cases discussed in this report, as well as to investigators at the International Commission against Impunity in Guatemala (CICIG) and prosecutors at the Attorney General’s Office, who generously shared their insights in the hope of strengthening Guatemala’s justice system.