GUATEMALAN COURT DECISION DELIVERS SETBACK, NOT A

UNCLAS SECTION 01 OF 02 GUATEMALA 000554

SIPDIS

E.O. 12958: N/A
TAGS: PHUM PGOV EAID ASEC MASS SNAR GT
SUBJECT: GUATEMALAN COURT DECISION DELIVERS SETBACK, NOT A
FATAL BLOW, TO MASSACRE CASE



1. SUMMARY: On February 16, Guatemala's Constitutional Court
issued a clarification of its earlier decision in the appeal
of Reyes Collin Gualip, one of 16 soldiers implicated in the
1982 Dos Erres massacre. The court reiterated that the case
against Gualip cannot proceed without a decision from the
Third Appellate Court, which must decide if the accused is
immune from prosecution under the 1996 "Law of National
Reconciliation." Importantly, the clarification puts to rest
fears that all judicial processes completed since 1996,
including key witness testimony, were nullified by its
earlier decision. But two worries remain: First, if the
Third Appellate Court judges Mr. Gualip immune from
prosecution, it would automatically confer immunity to the
other 15 defendants. It would also set a precedent,
effectively ending the possibility of prosecuting
perpetrators of war crimes in Guatemala. Second, even if
Gualip is denied amnesty, a series of individual appeals
threaten to delay prosecution, and with it justice for the
victims, indefinitely. END SUMMARY.

Background
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2. On December 6-8, 1982, a military unit with soldiers
based in Retalhuleu and Peten allegedly massacred almost 300
civilians in Dos Erres, a small settlement in the Peten. In
1994, at the petition of FAMDEGUA (Families of the Detained
and Disappeared of Guatemala),forensic scientists exhumed
162 remains, many of women and young children, from a well in
the former village. Additionally, in the late 1990s, two
former members of the accused military unit came forward to
give testimony against other soldiers. FAMDEGUA filed a case
with the Inter-American Commission and, in 2000, the
Inter-American Court ruled against the GOG. The GOG agreed
to pay reparations to the families of victims (which it did,
under former President Portillo) and pursue due process in
national courts. Dos Erres is a high-profile case due to the
barbarity of the crimes committed and is unique for its
testimony by supposed collaborators that links the accused to
the crimes.

The Law of National Reconciliation
--------------


3. The 1996 Law of National Reconciliation absolves
Guatemalans of penal responsibility for political crimes
committed during the civil conflict. Nevertheless, it
specifically states that "the law will not be applied to
crimes of genocide, torture, and forced disappearance..."
The law also states that an appellate court, one specifically
empowered to hear cases involving war crimes, must first
determine whether a case involves one of these exceptions
before the prosecution can proceed. The Third Appellate
Court set a precedent with the Rio Negro case, in which it
ruled that the Public Ministry could prosecute three former
members of the armed paramilitary PAC (Civilian Self-Defense
Patrol) for that massacre, leading to the first war crimes
convictions in Guatemala. Consequently, sending the case to
the Appellate Court will not necessarily terminate the case.

The Constitutional Court Grants the Appeal
--------------


4. Gualip claims amnesty under the 1996 Law of National
Reconciliation. Previously, the Twelfth and Tenth Appellate
Courts declined to hear his appeals. Gualip then appealed to
the Constitutional Court. In its decision, the
Constitutional Court granted the appeal and ordered
suspension of all judicial proceedings against the defendant
until the Third Appellate Court determines the applicability
or not of the Law of National Reconciliation.

The Constitutional Court Clarifies
--------------


5. The CC published two decisions in this case: the December
2004 judgment, published February 4, and a clarification of
that decision, published February 16. The vague wording of
the first decision raised alarms with prosecutors and human
rights activists, since it could be read to automatically
nullify every legal process completed in the case since
December 18, 1996. Since key witness testimony appeared to
fall within that category, prospects for prosecuting the
case, even with a favorable decision from the Third Appellate
Court, looked grim. Accordingly, FAMDEGUA petitioned the
court for a clarification of its decision. The February 16
clarification specifically protected the witness testimony
and made clear that other penal processes would only be
invalidated if the defendant is judged immune under the 1996
law.

Legal Appeals Delay Prosecution
--------------


6. To date, more than 30 individual and group appeals have
been filed by attorneys on behalf of the 16 defendants.
Since the case cannot move forward until all appeals have
been resolved, it is presently stalled in the Court of First
Instance, a court charged with investigating and hearing
evidence prior to trial. FAMDEGUA's principal complaint is
that the courts have failed to group the appeals and issue a
single decision. FAMDEGUA charges that by hearing the
appeals individually, courts are failing in their
responsibility to expedite the processing of a high-profile
case and, worse, may be complicit in prolonging it.

Next Steps
--------------


7. Frank LaRue, the head of COPREDEH (President's Commission
on Human Rights),commented to us that the ruling was by no
means a defeat, only a setback. He referred to the similar
setback in the Rio Negro massacre case, which was ultimately
prosecuted successfully.

8. Public Ministry Special Prosecutor Ana Patricia
Lainfiesta told poloff that the Constitutional Court violated
procedural rules by failing to inform her office, which has
handled the case since the late 1990s, of the proceedings.
On that basis, her office petitioned the court to reconsider
its December decision and hold a new hearing. As of March 1,
her office had received no response to that petition. If the
Constitutional Court refuses to rehear the case, prosecutors
will have no choice but to take the case to the Third
Appellate Court as instructed.


9. FAMDEGUA issued an official statement on Feburary 25 in
which it responded to the latest Constitutional Court
decision. The statement characterized the court's decision
as "contradictory and diffuse," but is not specific about its
inadequacies. It also accuses the court of "sponsoring
impunity." FAMDEGUA proposes no action, and appears to be
awaiting the next judgment.

Comment
--------------


10. Since the Law of National Reconciliation is unambiguous
in its requirement that application of the law in war crimes
cases must be decided by a specifically empowered appellate
court, the Constitutional Court's decision to send the case
to the Third Appellate Court should have been expected. That
said, both the Public Ministry and human rights NGOs complain
about procedural issues, excessive delays, and vague wording.
Such problems are neither new nor rare and cripple
Guatemala's judicial proceedings. Although the pace of
Guatemala's court cases is frustratingly slow, we have also
found that human rights activists can be indifferent to the
due process rights of defendants, particularly when they are
ex-military. In the best scenario, the Third Appellate Court
will continue the precedent it set in the Rio Negro case and
determine that the Law of National Reconciliation does not
apply to defendants in the case of Dos Erres.
HAMILTON