GERARDI SUPREME COURT APPEAL

UNCLAS GUATEMALA 000305

SIPDIS

E.O. 12958: N/A
TAGS: PHUM PREL KJUS GT
SUBJECT: GERARDI SUPREME COURT APPEAL

REF: A. 02 GUATEMALA 2649


B. GUATEMALA 248


1. SUMMARY: On January 31, the Supreme Court Chamber of
Appeals held the public audience of the latest appeal in the
Gerardi case. The Archbishop's Office on Human Rights (ODHA)
and the Public Ministry presented their appeals of the fourth
appeals court's October 8, 2002 decision (Ref A) to annul the
2001 conviction and order a retrial. The Ambassador attended
the judicial proceedings to show USG interest in justice
being done in this case. The judges are expected to render a
decision by February 6. End Summary.


2. Immediately after the Fourth Appeals Court's October 8,
2002, decision to annul the 2001 sentence condemning four men
for the murder of Bishop Gerardi, the ODHA presented its
appeal to the Supreme Court. The public reading of this
appeal, as well as the oral arguments of both the defense and
the prosecution, was held on January 31. Under Guatemalan
law, the Supreme Court's Chamber of Appeals has three working
days to come to a decision on the appeal.


3. The courtroom at the Supreme Court was two-thirds full,
with the bulk of the audience being international human
rights advocates and various Guatemalan civil society
notables. The Public Ministry presented its appeal first,
followed by the ODHA. Both parties argued that the
overturning of the 2001 sentence was illegal because the
Fourth Appeals Court did not review all of the evidence.
They maintained that while Ruben Chanax Sontay's testimonies
from preliminary depositions and the actual 2001 trial were
contradictory, the rest of their evidence from the 2001 trial
was solid.


4. All five defense lawyers, including representation for
Gerardi's absolved maid, Margarita Lopez, presented their
rebuttals following the prosecution. They argued that the
appeals process is a necessary part of the justice system and
that the Fourth Appeals Court's decision should be respected.
Margarita Lopez's lawyer argued that even if a new trial was
to take place, his client should be removed from the
proceedings because she was absolved in the 2001 trial.


5. Immediately following the oral arguments, the court
adjourned for three working days of deliberations, set to
conclude on February 6. The decision will not be released in
a public audience, but given privately to the parties.


6. The Ambassador greeted human rights activists and press
after the judicial proceedings. His attendance at the trial
was noted in all four leading dailies, and variations on his
statements regarding support for justice in Guatemala were
widely quoted. For example, El Periodico quoted the
Ambassador as saying his presence at the Gerardi appeal was
meant as a "sign of solidarity for justice in Guatemala." At
a separate event, the Ambassador later met one of the four
presiding justices, who was pleased by that explanation for
the Ambassador's presence in court.


7. COMMENT: We find the recent death of a Gerardi case
witness extremely troubling (Ref B),and will be alert to any
signs that the intimidation of witnesses will impact the
ruling. The ODHA appeal is based on legal technicalities
over procedures followed by the lower appeals court, which
ordered a retrial based on discrepancies in the testimony of
one witness. If the original guilty verdict is confirmed,
the defendants will return to prison. If the 2001 sentence
is annulled, a retrial will put witnesses at risk and delay
(if not set back) justice. While ODHA is confident its
argument will save the earlier conviction, we