Guatemala Must Fight Impunity from Within: CICIG Director

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While a UN-backed anti-impunity body has made progress in fixing Guatemala’s broken justice system, its director cautions that it is not a miracle cure, because ultimately Guatemala “belongs to the Guatemalans.”

Over the past five years the International Commission Against Impunity in Guatemala (CICIG) — a United Nations’ judicial body working with the Guatemalan government — has been a strong advocate for judicial reform in the Central American country, prompting the prosecution of several officials suspected of corruption. One of the CICIG’s signature accomplishments was bringing ex-President Alfonso Portillo, accused of embezzlement and money laundering, to trial. Although Portillo was acquitted in May 2011, the fact that he was even tried is due to years of work by the CICIG.

In May, InSight Crime spoke with the CICIG’s director, former Costa Rican Attorney General Francisco Dall’Anese, who gave a surprisingly frank assessment of the commission’s work. Despite the high praise the CICIG has earned over the years, Dall’Anese insisted that much work remains to be done to fix the Guatemalan judicial system, and that most of this must be accomplished by Guatemalans themselves, without outside help. In his own words, the CICIG is not the “Lord of Miracles.”

A portion of the conversation is available below, along with an audio clip of the interview.

Does the acquittal of former President Portillo of money laundering charges, in a controversial ruling considering the amount of evidence against him, represent a failure for the CICIG?

I can’t be a judge of the success of any such trial, because it always depends on variables. Witnesses can change their stories, forget something or become confused, and ultimately judges may believe them or not. In a justice system the prosecutors present evidence revealed by police officers, and judges decide whether to condemn or absolve. Those are the rules. So based on one acquittal I cannot say that the model failed.

Up until Portillo was absolved, we had won 11 trials against him and lost one. Still, to absolve Portillo with a majority ruling by the jury was a shame, a case of pure mockery of the justice system.

Also, the argument for disallowing all forensic evidence [in the Portillo case] was that the experts did not present the court with a justification of their expenses. But by God! There was no justification for their spending because the money had been stolen. Then we got into a vicious cycle: if a justification of expenditure was presented then there was no crime committed, and if it did not appear, then the evidence was inadmissible. The choice was between not guilty or not guilty.

The way they removed the CICIG, for example, our lawyers were allowed to work for a year in Guatemala. The trial began months before that year ended. And the court began to delay the hearings. It would hear a witness, then stop for a few weeks, hear another witness, then postpone a few others until the end of the year. When the CICIG prosecutors left, [the defendants] ended the trial at a doubled pace before we could obtain licenses for new lawyers.

What were the motives behind this mockery of the justice system?

The motives were that he is a former president, who still has power. There are criminal power structures. After Portillo’s trial came another trial against military interests, involving the ones who also diverted funds and who of course had all kinds of prominent influence.

This led to a government official saying at the time that Guatemala was on the verge of being a failed state.

Guatemala may become a failed state, but not by that judgment. It could be [a failed state] because it is overrun with criminal networks. It could be a failed state if it does not not address its 53 percent poverty level and 13 percent extreme poverty level, if it does not eliminate chronic child malnutrition, if it does not discontinue the societal marginalization of Indians, if it does not abandon intolerance, if it does not begin to enforce the law, or if does not tax elites; this is a complex issue. A failed state does not emerge because of the outcome of a lawsuit. But yes, it is headed down the path of becoming a failed state if it does not change.

Along those lines, since 2000 you have dismissed an impressive number of police officers; they say around two million…

This two million figure is not accurate. Data relating to the accomplishments of the CICIG has been exaggerated. And there is no way to confirm how many [police have been dismissed]. Because many times someone is fired due to casual conversation. We’ll talk to a minister and say, “This appears in a telephone intercept, we can’t prove it, but still…” So it isn’t formalized because we don’t have enough to build an investigation. We don’t have the data.

Speaking of this informal relationship, what do you think is working well in the new government of [President Otto] Perez Molina, who has invited the CICIG to remain until the end of its mandate. Will the Commission’s job be finished by then?

[Note: The CICIG’s current mandate expires in September 2013, but Perez has moved to extend it by two more years.]

There are several issues with this. The CICIG does not make any kind of final decisions. It proposes laws, but they depend on Guatemalan lawmakers to get passed. The CICIG compiles thematic reports on shaping public policy, but whether or not they are adopted depends on the president. The CICIG brings cases to trial, but convictions depend on Guatemalan judges. Ultimately the overall effect of its work depends on variables external to the CICIG.

Now, if Guatemala does not change certain things, if it does not create a professional police force or a system of independent judges, Guatemala is not going to thrive even if the CICIG stays for 100 years. The CICIG’s work is like trying to court a girl: it depends on her.

With which of the branches of government in Guatemala does the CICIG have the most difficulty?

Congress has us on a waiting list for 11 bills left over from the last session. We just recently informed the president about the bills we need to see processed in order to advance justice and fight against corruption. We’ll see what happens. He didn’t say he was going to do anything, or that we are a priority, only that he would do what is possible, because he has to make compromises with all of the political coalitions. That’s one challenge.

Another obstacle comes from a small minority of very powerful corrupt judges. They have the nerve to say that the CICIG must be kicked out of Guatemala, and that they are going to report me to the UN. Then these same judges practice their profession, without any kind of oversight. They resist [the commission] while publicly saying they are friends of the CICIG, but end up asking the CICIG to remove itself from legal procedures illegally.

This also reflects a structural challenge. Judges are elected every four years. This means that they are not impartial, and if they do not behave in a politically correct way they will not be confirmed in the position and they will probably lose their job. There are structural factors that work against the CICIG’s potential.

How is the CICIG’s work affected by the fact that it is a temporary commission with a limited time frame that depends on the government for renewal?

It is absolutely absurd to think of bringing an end to a system of impunity in a two-year mission. When you have to change a legal culture, institutional idiosyncrasies, you can’t do that after more than 500 years of war, or 36 years of civil war plus 16 years of peace, or whatever kind of time frame you wish.

And in a four-year mission?

Nor in four. But what can be done is to build up the state, and create the legal conditions for the thing to function. Everything else depends on the willingness of the Guatemalans. We are talking of establishing a proper judiciary, judicial independence, prosecutorial independence, top-notch prosecutors, a police intelligence database, a professional police system for protecting victims and witnesses, wiretaps with judicial guarantees, international exchange of information in real time. All that we can achieve, we can build, but if you end up with the best system in Latin America and it is not used properly or is used for other purposes, there has been no progress.

This is something that has to be very clear: The CICIG is not the lord of miracles. The UN can work with Guatemala, but it must be very clear that Guatemala belongs to the Guatemalans. And whether the boat floats or sinks, it is not the responsibility of the CICIG.

Obviously I would like for the CICIG to have its own prosecutors and judges. But in order for that to happen the constitution would need to be amended, and I don’t think that’s best for Guatemala. It would be an attempt at institutionalization by damaging an institution. I also would like it if the CICIG had the authority to pass laws. But that does not build democracy.

Do you feel that the Guatemalan state is ready to face its problems alone, without the support of the CICIG?

At this point they still do not want to face their problems alone. The president’s petition will extend the mandate until 2015. But the president has also said that the CICIG cannot stay for long, because if the CICIG continues to play a role that belongs to government institutions the damage can be tremendous. The mandate says that at the time that the state walks on its own the CICIG will leave.

But we must also face a regional reality. Very often the budget of a country in Central America or the Caribbean is less than the petty cash fund of a criminal organization. So how do we compete on equal terms? One remedy would be to create regional courts; it’s not such a crazy idea.

Some cases are beyond the capacity of one country, either for economic or structural reasons, due to a lack of institutional power, and for political reasons.

This is not new. It happened to the US during Prohibition in Chicago, it happened in Italy until they began the “clean hands” campaign, Colombia went through it, and it is happening in northern Mexico. If Central America can’t solve the problem, eventually it must be addressed by a multinational force.

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