Attacks on Judge Erika Aifán Davila in Guatemala

The New York City Bar Association expresses its deep concerns for the increased attacks on the independence of Guatemala‘s judiciary, in particular the attacks leveled against Judge Erika Aifán.

Judge Aifán is a trial judge presiding over Guatemala‘s High–Risk Court[1] responsible for high-level corruption and organized crime cases. In March 2021, Judge Aifán, described as an “icon of the struggle against corruption in Guatemala,“ received the International Women of Courage Award 2021[2] from the U.S. State Department. She is a founding member of the Guatemalan Association of Judges for Integrity (AGJI),[3] supported by the New York City Bar Association‘s Cyrus R. Vance Center for International Justice (Vance Center).[4] Judge Aifán was also part of the Guatemalan judges’ delegation that visited the New York City Bar Association in November 2021.[5]

As a result of the sensitive nature of the cases handled by Judge Aifán, including cases against public officials and other magistrates involving corruption, she has been subjected to a pattern of harassment and threats in an effort to impede these cases. In 2019, the Inter-American Commission on Human Rights (IACHR) found that security measures put in place to protect Judge Aifán were insufficient given the level of harassment and threats she suffered. As a result, the IACHR granted precautionary protection measures in favor of Judge Aifán to address the security issues.[6] As a judge of the High Risk Court, Judge Aifán oversees cases related to corruption, including cases in which former high-level public officials and powerful actors in Guatemala are involved, such as the Odebrecht–related case.[7] However, despite the IACHR’s ruling, the threats to Judge Aifán’s personal safety have continued, and most recently have taken the form of targeting her judicial immunity.

In recent weeks, three new requests to lift Judge Aifán’s judicial immunity have been filed, in addition to two other such efforts that were initiated in 2020 and 2021. All the requests are related to the 2020 case, “Parallel Commissions 2020: political and judicial control in the hands of a prisoner” (Comisiones paralelas 2020: control político y judicial en manos de un privado de libertad). The case was made public in mid-February 2020, when the Specialized Prosecutor Against Impunity announced the arrest of Gustavo Alejos, a politician accused of and previously imprisoned for several corruption cases. The Special Prosecutor accuses Mr. Alejos of corruption related to the selection of judges while Mr Alejos was alleged to have been hospitalized, as permitted by another judge, for a medical condition. It is alleged that he was seen receiving visits from several individuals involved in the judicial nominations process, including members of Congress, politicians, judges, magistrates and lawyers.[8] Judge Aifán is currently overseeing the Parallel Commissions case.

The Prosecutor General’s Office, headed by Prosecutor General Maria Consuelo Porras Argueta De Porres, filed two requests to lift Judge Aifán’s judicial immunity on January 13th[9] and 18th[10], 2022. A third request was presented by Raúl Amilcar Falla Ovalle on behalf of the Foundation Against Terrorism (Fundación Contra el Terrorismo) on January 24, 2022. These requests refer to alleged crimes committed by Judge Aifán including abuse of authority, breach of duties, and perverting the course of justice. If the requests to remove Judge Aifán’s judicial immunity are granted, this would allow her to be criminally prosecuted for alleged abuses in her adjudication of cases brought by the Special Prosecutor Against Corruption.

Prominent members of civil society in Guatemala and abroad have expressed concerns over the validity of these requests, noting that, in seeking to lift Judge Aifán’s immunity, the Prosecutor General appears to be attempting to secure impunity for those accused in the Parallel Commissions case, including Mr. Alejos, by facilitating the removal of Judge Aifán, an independent judge, from overseeing the case.[11]  Further, the Prosecutor General’s mandate ends in May 2022 and she is seeking reelection but is facing pushback and has been accused of facilitating corruption.[12] Many in civil society fear that the requests to lift Judge Aifán’s immunity are a further attempt to help the Prosecutor General’s reelection campaign and appoint a friendlier judge to the High-Risk Court.[13]

It is also worth noting that in September 2021, the U.S. State Department included Prosecutor General Porras Argueta De Porres in the United States’ Undemocratic and Corrupt Actors list, under section 353 of the United States–Northern Triangle Enhanced Engagement Act, for obstructing investigations into acts of corruption by interfering with criminal investigations.[14] Additionally, the lawyer who filed the most recent request to lift Judge Aifán’s immunity, Mr. Ovalle, was included in the U.S. Embassy in Guatemala’s July 2021 “Report to Congress on Foreign Persons who have Knowingly Engaged in Actions that Undermine Democratic Processes or Institutions, Significant Corruption, or Obstruction of Such Corruption in El Salvador, Guatemala, and Honduras.”[15]

In response to these requests to remove Judge Aifán’s judicial immunity, Mr. Diego Garcia Sayan, the United Nations Special Rapporteur for Independence of Judges and Lawyers, published an opinion piece in the El Pais newspaper detailing the harassment suffered by Judge Aifán. Among the various issues highlighted in his piece, Mr. Sayan stated that:

By invoking an alleged “abuse of authority” by Judge Aifán, she has been the subject of an extravagant number of criminal complaints and disciplinary actions effectuated by people who have been affected by her decisions….

Various analysts believe that these unusual steps by the Guatemalan Prosecutor’s Office are for the purpose of cutting off [Judge Aifán’s] investigations and nullifying important investigations into serious acts of corruption.[16]

The U.S Department of State also issued a statement declaring that the January 13th announcement of the filing of a formal request to lift Judge Erika Aifán’s immunity was a blatant effort to obstruct investigations into corruption and an affront to the integrity of Guatemala‘s highest courts.[17] And United States Agency for International Development (USAID) administrator Samantha Power described the request as a “transparent reprisal for her independence and courage in defense of accountability and the rule of law.”[18] Other national and international organizations have also come to Judge Aifán’s defense, including the Guatemalan Association of Judges for Integrity (AGJI)[19] and the Centroamerican Federation of Judges for Democracy (FECAJUD),[20] among others.[21]

Additionally, the Vance Center filed a merits petition before the IACHR on behalf of Judge Aifán, identifying violations of her judicial independence, including threats to her physical safety and efforts to criminalize her official conduct.[22]

The requests to lift Judge Aifán‘s judicial immunity are a direct attack on her judicial independence and pose a grave risk to the rule of law in Guatemala. According to the United Nations’ Basic Principles on the Independence of the Judiciary, the State shall guarantee the independence of the judiciary and the judiciary “shall decide matters before them impartially…without any restrictions, improper influences inducements, pressures, threats or interference….“[23] As detailed above, Guatemalan Judge Erika Aifán oversees high–profile and complex cases against high–level government officials and organized crime organizations. These requests to lift her immunity plainly constitute an attempt to retaliate against her and intimidate her for performing her judicial duties in accordance with the law.

In 2013, the IACHR published recommendations for guaranteeing the independence of operators of justice which provide that the states have an obligation to safeguard the independence of the judiciary in order to ensure that victims’ rights are protected as required by Articles 8 and 25 of the American Convention on Human Rights, which was signed by Guatemala in 1969.[24] IACHR has also noted that the Inter-American Court of Human Rights has previously referred to the need for an independent judiciary to guarantee the administration of justice. Furthermore, IACHR specifies that another component of guaranteeing due process for citizens is to ensure that judges exercising their functions are protected from intimidation, threats, or other attacks. The IACHR additionally highlights that States must guarantee that any disciplinary actions initiated against judges be properly and legally administered. [25] Similarly, the UN Basic Principles advise that a charge or complaint made against a judge in their professional capacity shall be handled expediently, fairly, and in accordance with “established standards of judicial conduct.”[26]

The New York City Bar Association respectfully calls upon the Guatemalan Government to take the measures necessary to respect and protect Judge Aifán‘s judicial independence, including implementing IACHR’s precautionary measures. In addition, we call on the Guatemalan government to ensure that any disciplinary actions taken against the judges of the High Risk Court, including Judge Aifán, be properly administered to ensure due process.