May21,2013 GUATEMALAS CONSTITUTIONAL COURT OVERTURNS RIOS MONTT CONVICTION AND SENDS TRIAL BACK TO APRIL 19<http://www.riosmontt-trial.org/2013/05/constitutional-court-overturns-rios-montt-conviction-and-sends-trial-back-to-april-19/> by Emi MacLean
Only ten days after a trial court issued its historic verdict convicting Efrain Rios Montt for genocide and crimes against humanity, and sentencing him to prison for 80 years, Guatemalas Constitutional Court, in a 3-2 ruling, overturned the verdict<http://www.right2info.org/resources/publications/constitutional-court-judgment-5.20.2013> and set the trial back to where it was April 19. This verdict had been the first genocide conviction of a former head of state in a domestic, rather than international, court. Rios Montt was convicted for crimes committed against Guatemalas Maya Ixil indigenous population<http://www.riosmontt-trial.org/2013/05/rios-montt-convicted-of-genocide-and-crimes-against-humanity-the-sentence-and-its-aftermath/> during his 17-month *de facto* rule in 1982 and 1983 following a military coup. On Friday, May 17, the trial court (*Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos contra el Ambiente de Mayor Riesgo A*) released its final 718-page judgment<http://www.riosmontt-trial.org/2013/05/718-page-rios-montt-judgement-released-all-eyes-on-constitutional-court/>, describing in detail the foundation for Rios Montts conviction. During the course of the trial, more than 90 witnesses testified of indiscriminate massacres, rape and sexual violence against women, infanticide, the destruction of crops to induce starvation, the abduction of children, and the forcible displacement and relocation of surviving populations into militarized model villages. Experts also provided foren sic, military, sociological and other testimony and analysis. The verdict came 30 years after the crimes and 13 years after the complaint was brought by survivors to the Public Ministry for investigation and prosecution. The Constitutional Court, in its judgment on Monday, overturned the verdict and annulled the final days of the trialsending the trial back to where it was on April 19. (On April 19, the tribunal had heard all prosecution witnesses, but still awaited the presentation of some of the defense witnesses, closing arguments and, of course, the final verdict and sentence.) The Constitutional Court also ordered the official suspension of the trial pending the full resolution of certain legal challenges raised by the defense. At least for now, the Constitutional Court ordered that the same trial court Presiding Judge Yassmin Barrios and her associates Pablo Xitumul and Patricia Bustamante reconvene to consider the case. It gave the tribunal 24 hours to comply exactly with these orders or risk dismissal from their posts and the possibility of civil or criminal sanction. In its judgment, the Constitutional Court did not acknowledge explicitly that the trial had already completed, concluding with a conviction. The decision stemmed from a constitutional challenge (*amparo*) raised by Rios Montts defense attorneys at the very end of the trial. In response to an earlier challenge, both the Constitutional Court and a Guatemalan appeals court ordered the trial court to remedy a due process violation from the opening day of the trialthe expulsion of Rios Montts newly-appointed defense attorney on the middle of that first day, leaving him represented only by the attorney for his co-accused for several hours, until his prior defense attorneys returned to his side on the morning of the second day. (See below for more information.) In the challenge at issue in Mondays Constitutional Court judgment overturning the verdict, Rios Montt asserted that the trial court had *not *in fact complied with the orders of the appeals court concerning this due process violation, even though the appeals court had recognized the trial court as having fully complied, in a judgment issued by the appeals court just the day before the release of the verdict. (Rios Montts challenge was, in effect, a challenge to the appeals courts finding that the trial court implemented fully the appellate courts order.) Media sources reported last week that the Constitutional Court was delayed in issuing its ruling because of division among the judges of the court<http://www.riosmontt-trial.org/2013/05/constitutional-court-apparently-divided-on-whether-rios-montts-conviction-for-genocide-should-stand/>. That division was evident in the judgment released on Monday. Three of five judges Hector Perez Aguilera (the President of the Court), Alejandro Maldonado and Roberto Molina supported the ruling, while Judges Mauricio Chacon and Gloria Patricia Porras filed strong dissenting opinions. Judge Chacon, in his dissent, affirmed that there was nothing that rose to a level of a constitutional violation that should be dealt with in this extraordinary way, through an*amparo*; criticized the Constitutional Courts remedy as disproportionate, particularly as the trial court already issued a sentence; and objected to the actions of Rios Montts defense attorney as intentionally obstructionist. He regretted that the Constitutional Court now rewarded these obstructionist efforts with an annulment of the verdict, with the Constitutional Court blaming the trial court judges when their actions did not invoke anything that suggested a lack of impartiality. ( *no invoco nada a cerca de la falta de imparcialidad de los integrantes de dicho tribunal.*) Judge Chacon also identified the decision of the Constitutional Court as detrimental to judicial certainty in Guatemala Judge Porras, for her part, criticized the majoritys decision for leaving the victims constitutional right of access to justice unprotected. ( *el Tribunal Constitucional, al resolver sobre la anulación y suspensión de las actuaciones del Tribunal de Sentencia, está dejando desprotegidas a las víctimas de su derecho constitucional de acceso a la justicia*.) Guatemalan lawyers have described the appropriate mechanisms for a challenge to the verdict as through a special appeals process (*la apelacion especial*, described in Articles 415-22 of the Guatemalan Criminal Procedural Code<http://www.oas.org/juridico/MLA/sp/gtm/sp_gtm-int-text-cpp.pdf>) available within the ten days following the issuance of the trial courts final judgment. The ten-day window for Rios Montts appeal thus began on Friday. Because of this, some have contested that the Constitutional Court did not have jurisdiction to rule here, prior to the filing of a special appeal and the release of a judgment from the appellate court. However, the Constitutional Court reported various times last week that it was still considering legal challenges<http://www.riosmontt-trial.org/2013/05/constitutional-court-apparently-divided-on-whether-rios-montts-conviction-for-genocide-should-stand/> from Rios Montt that were pending from when the trial was still in session. Rios Montts attorney highlighted that, on the day that the guilty verdict was released, it had 12 interim legal challenges pending; it filed various more subsequent to the announcement of the verdict. Prosecutors and civil parties have consistently asserted that the defense strategy has relied excessively on constitutional challenges (*amparos*) to delay or obfuscate the trial. During the past week, with the Constitutional Court asserting that it was on the verge of issuing rulings which could annul the verdict, there was tension in Guatemala related to the trial; forceful and repeated calls from CACIF<http://www.riosmontt-trial.org/2013/05/imminent-constitutional-court-judgments-may-affect-guatemalan-genocide-conviction/>, Guatemalas powerful business association, for the verdict to be overturned; and explicit threats<http://www.riosmontt-trial.org/2013/05/718-page-rios-montt-judgement-released-all-eyes-on-constitutional-court/> made by Rios Montts lawyer of national paralysis if the Constitutional Court did not rule in Rios Montts favor, as well as bomb threats at the Constitutional Court and other government offices. Rios Montt had been transported from the trial court to Matamoros Prison after the verdict, on Friday, May 10, to begin to carry out his sentence. However, by Monday, May 13, he had been transported to a military medical facility (*el Centro Medico Militar*) on account of hypertension and other medical problems. The Constitutional Court judgment means he will likely not return immediately to Matamoros Prison. *Background of the Judgment* The origins of the Courts judgment on Monday are defense challenges to the trial courts actions on March 19, 2013, the first day of the trial<http://www.riosmontt-trial.org/2013/03/trial-opens-with-prosecution-witnesses-after-defense-challenges-rejected/> . Francisco Garcia Gudiel appeared for the first time as Rios Montts attorney on the opening day of the trial, notifying the court that Rios Montt had substituted him that morning for his entire defense team. Garcia Gudiel then proceeded to mount various legal challenges to the continuation of the trial. All were rejected by the trial court. Garcia Gudiels final legal challenge that day was a motion to recuse two of the tribunal judgespresiding judge Yassmin Barrios for enmity, and her associate judge Pablo Xitumul for amity. The tribunal ruled that Rios Montt was precluded procedurally from seeking a recusal at that stage. The trial court then ordered Garcia Gudiels expulsion and compelled the attorney for Mauricio Rodriguez Sanchez, Rios Montts co-accused, to defend him if Rios Montt was unable or unwilling to introduce his own chosen counsel who would accept the makeup of the tribunal. The following morning, when Rios Montt did not come to court with an attorney, Judge Barrios stated that she would seek public defense counsel if Rios Montt did not bring in chosen counsel. The general quickly stepped out to make a phone call and one of his prior counsel soon re-appeared at his side to represent him. Others subsequently re-joined his defense team. This series of events was the source of various legal challenges. On March 26, the Third Chamber of Guatemalas Court of Appeals (*Sala Tercera de la Corte de Apelaciones*) initially denied that the trial court violated Rios Montts constitutional rights on the first day of the trial. On appeal, the Constitutional Court, on April 22, 2013, ruled in favor of Rios Montt,<http://www.riosmontt-trial.org/2013/04/guatemalan-constitutional-court-issues-resolutions-concerning-some-pending-legal-questions-some-key-issues-remain-outstanding/>suspending the trial courts ruling. Judge Chacon, who dissented from Mondays judgment, also dissented from the April 22 rulingasserting that Garcia Gudiel inserted himself into the case, improperly, in order to force the expulsion of two of the judges. (* asumió la defensa con el objeto especifico de provocar la separación de los jueces que ya intervenian*). In the interim, the Third Chamber also reversed its earlier ruling. On April 18, the Third Chamber ordered provisionally that the trial court re-incorporate Garcia Gudiel as defense counsel for Rios Montt; and suspend the trial temporarily to allow for resolution of this issue. It left to the trial court the immediate crafting of an appropriate remedy. The Constitutional Court reviewed the Third Chambers April 18 judgment. In two May 3 decisions, the Constitutional Court upheld the Third Chambers decision<http://www.riosmontt-trial.org/2013/05/more-legal-battles-in-rios-montt-genocide-trial-even-while-trial-remains-on-leave-until-tuesday/>. The same two judges dissented from that decision as dissented today. At the time, Judge Porras asserted that there was no violation of a fundamental right given the remedies already ordered, and highlighted the potential for constitutional challenges (*amparos*)* *to be abused. Judge Chacon described the remedy ordered as manifestly disproportionate. On May 6, the Third Chamber again recognized a constitutional violation<http://www.riosmontt-trial.org/2013/05/guatemalan-appeals-court-orders-rios-montt-genocide-trial-temporarily-suspended/>this time in a final, rather than provisional, judgment. It ordered the trial court to reincorporate Garcia Gudiel as attorney for Rios Montt and suspend the trial until the recusal motion posed by Garcia Gudiel was responded to. According to the Constitutional Courts judgment released on Monday evening, the trial court continued *in spite of* the suspension order issued on April 18. However, the trial court *did *in fact suspend the trial on April 19<http://www.riosmontt-trial.org/2013/04/tribunal-says-annulment-order-is-illegal-suspends-trial-pending-review-by-constitutional-court/> for the resolution of various issues. When the trial court eventually reconvened on April 30, it reinstated Garcia Gudiel as Rios Montts defense counsel<http://www.riosmontt-trial.org/2013/05/embattled-trial-re-convenes-and-struggles-toward-its-conclusion/> and, as a remedy for the due process violation found by the Constitutional Court, the trial court also re-read the indictment to Rios Montt, and set aside the testimony of the witnesses heard during the first afternoon when Rios Montt did not have his own defense attorney present. On May 8, following the May 6 decision of the Third Chamber, the trial court also heard again, and rejected on substantive grounds, Garcia Gudiels renewed motion for the recusal of Judges Barrios and Xitumul<http://www.riosmontt-trial.org/2013/05/rios-montt-trial-moves-to-closing-arguments-public-ministry-seeks-75-years-in-prison-for-genocide-and-crimes-against-humanity/> . After receiving a report from the trial court, following another complaint from Rios Montts attorneys, the Third Chamber concluded in a May 9 decision the day before the trial court announced its verdict that the trial court did indeed comply with the Third Chambers May 6 judgment by re-incorporating Garcia Gudiel as defense counsel for Rios Montt and hearing and considering the recusal motion. The Constitutional Court judgment arises from Rios Montts challenge (*ocurso en queja*) to this May 9 judgmentRios Montt essentially asked the Constitutional Court to rule that the Third Chamber was wrong to accept that the trial court complied with its orders. The Constitutional Court did so, setting aside that judgment and issuing the orders described above.*)* [Non-text portions of this message have been removed] ------------------------------------ --------------------------------------------------------------------------- LAAMN: Los Angeles Alternative Media Network --------------------------------------------------------------------------- Unsubscribe: <mailto:[email protected]> --------------------------------------------------------------------------- Subscribe: <mailto:[email protected]> --------------------------------------------------------------------------- Digest: <mailto:[email protected]> --------------------------------------------------------------------------- Help: <mailto:[email protected]?subject=laamn> --------------------------------------------------------------------------- Post: <mailto:[email protected]> --------------------------------------------------------------------------- Archive1: <http://www.egroups.com/messages/laamn> --------------------------------------------------------------------------- Archive2: <http://www.mail-archive.com/[email protected]> --------------------------------------------------------------------------- Yahoo! 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