Statement Condemning the Continuing Harassment and Criminalization of Justice Operators in Guatemala

The New York City Bar Association (City Bar) is gravely concerned by the Republic of Guatemala’s continued criminal harassment of lawyers, judges, prosecutors, and former prosecutors who have handled corruption cases. On February 8, 2022, the City Bar called on the Guatemalan Government to take action to protect Judge Erika Aifan from harassment and to ensure that any disciplinary action taken against her and other judges of the High Risk Court who handle corruption cases be properly administered and accorded all the protections of due process.[1] Unfortunately, the harassment and arrests have escalated, threatening judicial independence and the rule of law in Guatemala.

JUDICIAL INSTITUTIONS IN GUATEMALA CONTRAVENE THEIR MANDATE BREACHING DUE PROCESS PRINCIPLES

As integral components of the country’s justice system, the Public Prosecutor’s Office, the Supreme Court of Justice, and the Constitutional Court are required to abide by the Constitution of the Republic of Guatemala and other laws, ensuring respect for the rule of law.[2] However, in the past few weeks multiple credible media sources have reported that, far from complying with their legal mandate, these institutions persist in actively persecuting, imprisoning, and criminalizing Guatemalan judges, prosecutors, and lawyers solely for fulfilling their professional obligations in pursuing cases against corruption.[3]

These acts by the Guatemalan authorities violate due process principles, including the right to a public hearing, by initiating criminal prosecutions under seal based on allegations made by attorneys who are defending those indicted in corruption cases. As the prosecutions are conducted under seal, the investigations are not made public and the corresponding hearings are often postponed, prolonging the preliminary detention of the accused.

CRIMINALIZATION OF JUSICE OPERATORS IS RELENTLESS AND REVEALS A SYSTEMATIC PERSECUTION

Some of the distressing cases include that of Siomara Sosa, former prosecutor of the FECI (Guatemala’s Special Prosecution Division combating impunity) and defense attorney, Leily Santizo, former member of the CICIG (the now defunct United Nations supported International Commission against Impunity in Guatemala). They were arrested and placed in preliminary detention after the Public Prosecutor’s Office charged them with alleged conspiracy and obstruction of justice crimes.[4] Both lawyers had been involved in high-profile landmark corruption cases that resulted in the imprisonment of multiple politicians, businessmen and drug traffickers.[5]

In addition, Virginia Laparra Rivas, former head of the FECI in Quetzaltenango, was arrested on February 23, 2022 and on March 3 charged with abuse of power and usurpation of functions. The allegations against Laparra arise from her filing of claims with the Judicial Disciplinary Board against judges in 2019. Laparra was detained amidst authorities’ harassment of numerous former FECI prosecutors, leading a number of them to resign and flee. Ms.  Laparra has been denied due process, as her hearing has been postponed at least six times for various reasons. In the meantime, she is languishing in preliminary detention.[6]

Likewise, FECI assistant prosecutors Willy Racanac López and Paola Mishelle Escobar Quiñónez were detained February 16, 2022, for the alleged crime of abuse of power in the case Comisiones Paralelas 2020.[7] In that case, the FECI submitted multiple requests to revoke the immunity of certain judges in the Supreme Court of Justice, the Electoral Tribunal, and the Constitutional Court, based on evidence of a plot involving corruption in the election of judges.[8] The prosecutor’s office attempts to justify its actions using groundless claims asserting that the requests to revoke judicial immunity were filed for the purpose of coercing false confessions.

These cases along with the intimidation and subsequent exile of former FECI head Juan Francisco Sandoval; former prosecutor Carlos Antonio Videz; former Supreme Court justice and Attorney General Thelma Aldana; former Court of Appeals judge Claudia Escobar, and former prosecutor Andrei González, as well as justice Gloria Porras who was reelected as a justice of the Constitutional Court, but then disqualified from office in apparent retaliation for some of her rulings, threaten the strength of the rule of law and underscore the absence of measures to safeguard sound governance in Guatemala.[9] Additionally, assistant prosecutor Eduardo Pantaleón, who worked on high-profile corruption cases including Libramiento de Chimaltenango and those involving acts of bribery committed by members of the judiciary, was arrested for alleged acts of obstruction of justice and breach of duties. Furthermore, over the past few days, Judge Miguel Ángel Gálvez has received multiple threats after he issued an order to commence trial in criminal judicial proceedings against nine former members of the military and police in the case Diario Militar.

Moreover, the threats against Judge Aifan continued to escalate, forcing her to resign from her position as head of the High Risk Court, Juzgado de Mayor Riesgo D and to flee to the United States. Judge Aifan feared for her life after several years of harassment and repeated attempts by the Public Prosecutor’s Office to revoke her immunity.[10] It is alarming that judicial actors like Judge Aifan and the others outlined above have been forced to leave the country due to the threats, intimidation, and persecution they face, along with their arbitrary prosecution and detention by institutions of the State. The common denominator among those targeted for persecution is their role in prosecuting and fighting against corruption. All these individuals worked on high-profile cases that resulted in criminal charges and the imprisonment of State officials,[11] and most belong to the Courts of High-Risk Crimes, the FECI, or the now defunct CICIG, all of which helped to dismantle criminal networks through effective prosecutions.

ACTS UNDERTAKEN BY GUATEMALAN STATE ENTITIES BREACH INTERNATIONAL LAW

These acts of persecution by State institutions, including the Office of the Public Prosecutor, clearly contravene a number of fundamental principles and standards of international law[12], including the United Nations Basic Principles on the Independence of the Judiciary. First, UN Basic Principle 1 provides that the independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the law of the country. By persecuting judicial actors for their participation in major corruption cases, making use of criminal justice tools and procedures, the State fails to ensure judicial independence pursuant to the UN Basic Principles.[13] Additionally, the State’s acts of persecution violate Articles 203, 251 and 268 of the Guatemalan Constitution.[14] Moreover, the State has failed to adhere to UN Basic Principle 17, which requires that complaints made against a judge in his/her professional capacity be processed expeditiously and fairly under an appropriate procedure.[15] The allegations of judicial and prosecutorial misconduct against the judicial operators prosecuting and adjudicating corruption cases made by defense counsel representing individuals indicted in those cases are not resolved via expeditious and fair proceedings. To the contrary, the allegations are the subject of sealed proceedings that suffer from numerous irregularities.

Moreover, the State’s persecution of judges and prosecutors breach multiple standards set forth by the American Convention on Human Rights. Specifically, Articles 8 and 25 of that treaty encompass due process principles, including that of the independence of the judiciary. The Inter-American Commission on Human Rights has issued recommendations to States that are parties to the Convention, providing that States shall pledge the necessary and adequate resources to ensure the protection of judicial operators’ lives, and their overall safety and security, and, further, that States must thoroughly investigate any attacks on them.[16]  The State of Guatemala, which is a party to the treaty, has failed to adhere to the American Convention on Human Rights.

GOVERNMENTS AND INTERNATIONAL ORGANIZATIONS REACT IN CRITICISM

Numerous governments, organizations and individuals have expressed concern over the pattern of attacks on the independence of judges and prosecutors handling corruption cases in Guatemala. The Inter-American Commission on Human Rights assessed the judicial tools used by Guatemalan judicial authorities to prosecute the above-mentioned judges and prosecutors for misconduct and concluded that the tools are being used for purposes of intimidation, harassment, and removal. Further, the IACHR has warned that the State’s failure to ensure the security of judicial operators against external influences has a significant negative effect on judicial activity and obstructs justice.[17] It is also worth noting that the IACHR previously issued precautionary protection measures to Judge Aifan,[18] as well as other judges including Judge Yassmin Barrios, Judge Patricia Isabel Bustamante García, and Judge Pablo Xitumul de Paz. Similarly, the European Union has reported that the prosecutions of judges and prosecutors in Guatemala are preceded by “lengthy social media campaign[s], including intimidation and threats”.[19] Additionally, the United States government has also issued several statements condemning the State of Guatemala’s actions against Judge Aifan and others.[20]

CITY BAR CALLS UPON GUATEMALAN INSTITUTIONS TO CEASE INTIMIDATION AND ACT ON LEGAL BASIS

The New York City Bar Association calls on the Attorney General and Head of the Public Prosecutor’s Office, the Justices of the Supreme Court of Justice, and the Judges of the Constitutional Court, as guardians of the rule of law in Guatemala, to undertake all necessary measures and:

Act in accordance with the law and their constitutional mandates and focus their efforts to fight corruption, disregarding private interests.

Cease the criminalization of and the attacks on lawyers, judges, prosecutors, and former prosecutors who have fought corruption in Guatemala, thereby defending the rule of law.

To safeguard the rule of law, Guatemala must combat corruption and end impunity.

Task Force for the Independence of Lawyers and Judges
Christopher Pioch, Co-Chair
Jessenia Vazcones-Yagual, Co-Chair

Vance Center for International Justice
Alexander Papachristou, Executive Director
Jaime Chavez Alor, Latin America Policy Director / Member, Inter-American Affairs Committee and Task Force for the Independence of Lawyers and Judges

Inter-American Affairs Committee
Michael A. Fernandez, Chair

International Human Rights Committee
Ramya Kudekallu, Chair

May 2022