Guatemala: The Fall of Paz y Paz, the End of a Judicial Awakening

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If the conviction of former dictator Efrain Rios Montt on genocide charges represented the opportunity for Guatemala’s justice system to right its historical wrongs, the annulment of the sentence and the virtual removal of Attorney General Claudia Paz y Paz was a harsh call to return to the status quo. Judges living in fear, hidden negotiations and elite networks ensure “justice” remains in line with corrupt interests.

The day they kicked her out of office, Claudia Paz y Paz thought she had won the game. It was a Thursday. The Guatemalan Attorney General had brought together her team of closest advisors for an 11am meeting in her office. 

For months, she had been under intense political fire. In just three years, she had put in jail whole factions of the Mara Salvatrucha and the Barrio 18, military officials accused of war crimes, and one hundred members of the Zetas. She had captured and extradited to the United States local drug trafficking bosses that, thanks to their political backers, had enjoyed virtual immunity for years. Paz y Paz symbolized a new kind of justice in Central America. But prosecuting former dictator Efrain Rios Montt for genocide in 2013 put her on the radar of Guatemala’s powerful traditional right wing.

The following are excerpts from an article that originally appeared in El Faro’s Sala Negra, which were translated and reprinted with permission. See original here

The business elite had been trying for months to cut short her term as attorney general, which was initially supposed to end in December 2014, to May. In the round and freckly face of Paz y Paz they saw the left, the old communism, taking over their justice system to use it against them. They wanted her out. They wanted to give her a clear display of their old and effective power.

That was the game that the attorney general believed she had won on February 5. She thought, due to a miscalculation, that the time frame for the Constitutional Court to rule on her case had expired. Her optimism had also been bolstered by declarations made the previous Thursday by Manuel Barquin, the vice president of Congress, in which he had approved two technical reports from the Supreme Court of Justice in favor of Paz y Paz. The law and politics, she thought, were on her side.

At 11am, all of her team had assembled for the meeting. With her soft voice and her parsimonious habits, perfect for telling stories or secrets, Claudia Paz y Paz told them her next strategic step in the long game of chess that the battle for justice in Guatemala had become.

***

It was time for a defensive move. Although she thought the issue of the length of her term was resolved, she knew there would be other attacks. With the transfer of her private secretary, Arturo Aguilar, to a different office, she was trying to cultivate in other institutions what she had learned during her three years as attorney general with her team, which included a dozen young criminal and human rights lawyers who she had worked with for over a decade. The oldest of her team was 50. There were those, such as Aguilar, who were barely over 30.

Elvyn Diaz, Paz y Paz’s private assistant secretary, was just 29, and had the mannerisms of a star student. He liked to speak quickly, had a cutting humor, an acidic laugh, and was mildly sarcastic. Just after the reunion he was having lunch with two journalists from Plaza Publica. He was with them when he got the call: the Constitutional Court had cut off Paz y Paz’s term.

***

In December 2010, no power structure, nobody within the justice system in Guatemala, was betting that President Alvaro Colom would elect Claudia Paz y Paz as attorney general. These are the exact words of Carlos Menocal, one of the men who most influenced President Colom’s final decision. Menocal, a former journalist, was at that time interior minister.

***

“Alvaro Colom had a bit of complex because in his administration the transitional justice system did not make advancements,” said Menocal. “The naming of Claudia Paz y Paz, a human rights expert, was like his crowning achievement.”

“So naming Paz y Paz as attorney general was a personal victory for Colom aimed at bringing justice to the victims of the war?”

“Let’s say it was a personal victory for him and for some of his collaborators.”

Transitional justice was not Colom’s only concern. Guatemala was still under pressure for the murders of three Salvadoran officials from the Central American Parliament who were killed in 2007 at the hands of corrupt police. Six days after the murders, an armed group entered the maximum security prison “El Boqueron” where the murderers were being held, killed them, and left the same way they had come in. No doors were forced. No prison guard saw anything. Nobody was ever arrested. The government of then-President Oscar Berger, either in an act of denial or complicity, tried to pin the crime — without proof or witnesses — on other prisoners.

It is a proven fact that during the Berger administration, death squads involved in social cleansing operated within the police. The “El Boqueron” massacre was not the only one committed in those years in Guatemala’s jails, which had become the setting for payback killings between criminal groups, with the complicity of the government. But the silencing — with a shooting in a jail — of those responsible for a crime with diplomatic implications was the ultimate demonstration that the justice system was absolutely broken.

A year later, after taking power, Alvaro Colom found in his office seven microphones and two hidden cameras. Somebody was spying on the president. The man who was trying to rid the Guatemalan security forces of corruption couldn’t even rely on his bodyguards.

In 2009 a small revolution occurred in the justice system that helped prevent Guatemala from becoming a failed state. The International Commission against Impunity in Guatemala (CICIG), created in 2006 to serve as an international crutch for a crippled country, began to uncover the parallel illegal apparatuses operating within the state. Pressure from the CICIG, in addition to foreign cooperation, allowed the Public Ministry (MP) to acquire new legal and scientific tools for investigation, such as telephone recordings and ballistics laboratories. Moreover, the gradual appearance of new economically powerful groups distinct from the traditional families altered the map of influence in the judicial system and allowed the Constitutional Court to uncover secret military documents and to ensure that disappearances — a common crime during the civil war era — would not be of a permanent character. Even within the police force, which was considered an incurable source of corruption, the Spanish and US governments formed and sponsored small groups of specialized young agents to pursue homicide and extortion.

But it was not enough. By March 2010, Colom had been forced to dismiss three consecutive interior ministers and two national police chiefs for corruption in just two years. His government had been at the point of facing a coup d’état in 2009 and had navigated with difficulty through power struggles in which it was difficult to distinguish purely political ambitions from criminal motives. Despite small advances, the magical country that millions of tourists arrived to each year in search of Mayan ruins was itself a ruin.

The final straw came in June 2010: the CICIG commissioner, Spanish national Carlos Castresana, publicly resigned from his post claiming that a week before Colom had elected a corrupt attorney general despite knowing, based on reports provided by Castresana himself, that the candidate had drug ties. The prosecutor in question, Conrado Reyes, was forced to resign, and a new selection process was begun. This is how Colom ended up electing Claudia Paz y Paz that December.

***

The members of the postulations commission for the new attorney general included Paz y Paz in the shortlist of the final six candidates so that her academic and progressive profile would make the process look good to the public eye, at a time when the legitimacy of the political system was in question. They took for granted that the president would not make such an outlandish decision as to select a lawyer with provocative ideas, dedicated for years to shedding light on war crimes, and without political allies. They were wrong. At noon on Thursday, December 9, 2010, Colom told Menocal to get prepared, that Paz y Paz would be named at 6pm and that he would be the only member of the cabinet present. He also asked him to send urgent invitations to the other state bodies and diplomatic delegations.

Just six ambassadors attended the event, among them those of the United States. The attorney general who in the following years would revolutionize the Public Ministry was sworn in in an express ceremony in a small room, a sharp contrast to the ostentatious welcomes her predecessors had received. Colom had to leave on a trip the following day and he wanted the attorney general to already be in place. He feared that, if he waited, in his absence those who opposed the appointment could strengthen their resistance and launch a counterattack.

In such precarious circumstances, it was to be expected that the political backing of Colom would not be worth much to Paz y Paz once she was in her post. With the clear intention of hindering her work, the Congress passed the following four years without naming an advisory board for the attorney general, which is supposed to authorize administrative decisions such as dismissals. Although she attempted an internal purging of the MP, Paz y Paz was not able to fire a single one of the 286 prosecutors and employees she suspended for corruption or uselessness during her administration. When she left her post, many continued receiving their salaries despite being suspended from service.

SEE ALSO: Guatemala: The War of Paz y Paz

The attorney general never gained absolute power over the Public Ministry. Elvyn Diaz said she did not control the contraband prosecution offices, which only resolved one case throughout the period, or the environmental prosecution, both in the hands of prosecutors who she did not confide in but who enjoyed immunity due to their labor union involvement. Nor did she have any influence in the prosecutorial posts most geographically removed from the capital, which were frequently home to suspicious prosecutors whom she could not fire.

Moreover, the Paz y Paz administration was marked from the beginning by the shadow of dismissal. Rumors that she would not last long appeared even in the newspapers. In June 2011, when she had spent just six months in office, a journalist asked her about this constant background noise. Her response at the time has taken on a dismal meaning three years later: “The law is clear and I stick to what I said: it would be a technical coup d’état. My working plan is for four years, no less.”

***

Even to go buy flowers, Judge Yassmin Barrios travels with a police patrol. On the day we met, she was headed to the supermarket in a pickup with sirens surrounded by police agents who had been protecting her for 10 years — since the day before the trial began for the murder of Bishop Juan Gerardi, when someone planted a fragmentation grenade on the patio of her house. Last year, she received new death threats and the judicial system assigned her an armored vehicle, but she only uses it twice a day — to travel to and return from the courts. Nothing else. She says the vehicle isn’t hers and it wastes a lot of gasoline. “A person should be austere, not abuse things,” she said with a maternal logic. Yassmin Barrios, the judge who in May 2013 convicted Efrain Rios Montt on genocide charges, tries to reduce the most complex things to simple logic. And she doesn’t own a car.

***

“Is it difficult to be a judge in Guatemala?”

“Yes, definitely,” responded Barrios. “Not for the cases we have to try, but for the context that surrounds us.”

“What context?”

“The situation of violence that reigns, and the insecurity of the judges.”

“Do you think there are judges that excuse themselves from certain cases due to fear?”

“I can’t answer questions about other people. They would have to answer that. Each person knows why they opt out. What I can say is that these excuses only can be made when there is a good reason. One should not excuse oneself. One is obligated to do their duty.”

“But for example, a motive could be that they throw two grenades on the patio of someone’s house, like they did to you.”

“That was the night before. The debate was the next day. And I showed up to work.”

“What motivates you to keep moving forward with such complicated cases?”

“I am just a judge. When I started working I took an oath. This is part of being a judge.”

***

During the eight weeks the Rios Montt trial lasted, Barrios was a small David with curly hair that fought against history, the stridencies of defense lawyers, and the invisible Goliath of political and media pressure. The plaintiffs tried to maneuver with care in order not to set the country on fire, while the Rios Montt camp and the business sector accused Paz y Paz and Barrios of causing divisions in Guatemala and threatening the peace accords. The Guatemalan right wing closed its ranks, reestablished ties with influential retired military leaders and forgot their differences for a common cause. There were various legal attempts to halt the hearings and at every turn there was the fear that a political trick would end the process.

***

Even so, March and April 2013 were months of hope for those who had spent decades demanding reforms to the Guatemalan justice system. In less than a decade, they had moved from the caveman-like executions at the hands of police to investigating and bringing to trial both common criminals and ex-dictators who in their ideology were just as much assassins as Berger’s gunmen. Added to that was the fact that since 2010 the country had been experiencing a slow but steady decline in the murder rate. Guatemala was experiencing a judicial spring — an awakening.

But since May 10, 2013, when Barrios convicted Rios Montt, there have been various signs of a regression. An invisible hand began to shake the tightrope on which Paz y Paz, Barrios and Guatemala’s untouchables were walking in a delicate balance.

First came the quick annulment of the decision, just 10 days after the sentence. The Constitutional Court — which is controlled, according to sources from both the left and right, by the traditional business elite and to a lesser degree by the executive branch — found defects that allowed it to order a complete retrial. In theory, this should occur in January 2015. Then came the attack on Paz y Paz which ended in her early removal from the post.

In the middle of all this, the Guatemalan College of Lawyers tried to suspend Barrios from her post for alleged ethical problems in her treatment of a defense lawyer during the trial. The sanction was never applied and was later thrown out by the Constitutional Court, but a black stain fell on those who had tried to prosecute the former dictator.

It was as though someone were terminating the judicial spring by decree.

***

“What does a new Rios Montt trail mean for the justice system?”

“I can speak regarding what it means for us as judges,” said Barrios. “Our sentence — there are three of us in the court who dictated it — represents a move forward. Not just the completion of the debate, but the dictation of a sentence. There is evidence from witnesses, from experts, from documents that the accused was responsible for genocide and crimes against humanity. This is an advancement not just for Guatemala, but for Latin America and the whole world.”

“There is another reading of it: trying a former head of state on genocide charges is without doubt a move forward, but then there were the reactions outside the tribunal and the final result, the annulment of the sentence…”

“I will clarify for you that the sentence was not nullified. The process was nullified. These are two different things. The court didn’t annul the analysis we performed. They didn’t find defects in the sentence, they didn’t review it, and that is very important.”

“That is to say…”

“It is a sui generis case. There is no precedent of this nature in our judicial system.”

“And do you think that the annulment was an attack on the judicial system?”

“I think the most important thing is what the rest [of the population] thinks.”

SEE ALSO: Coverage of Judicial Reform

“What the rest think” is a confusing concept. When the Constitutional Court annulled the decision against Rios Montt there were international bodies that considered it judicial sacrilege. Civil society organizations denounced the political character of the decision. And then-CICIG Commissioner Francisco Dall’Anesse — a Costa Rican national — said in public three months later that it was an “illegal annulment.”

On the other end of the spectrum, were the representatives of the CACIF, the organization that has historically encompassed the country’s business elite. They were the ones who had demanded the annulment, and accused Dall’Anesse of violating the Guatemalan Constitution by challenging a judicial decision. At that point, the Costa Rican only had a month left in the post and was already, essentially, out of the game. A communiqué sent by the CICIG during the trial, denouncing a media campaign calling for Rios Montt to be declared innocent, led to a run-in with the government of President Otto Perez Molina, who complained via diplomatic channels to the United Nations and forced Dall’Anesse out. Taking a stance against Rios Montt in the genocide trial produced powerful enemies.

***

Judge Pablo Xitumul, who together with Patricia Bustamante and Yassmin Barrios conformed the tribunal that convicted Rios Montt, said he was not pressured or directly threatened during the process, but that his telephone was tapped and that one of the defense lawyers of the former general shouted during one of the hearings: “I am not going to rest until I see you behind bars.” In any other case, those words wouldn’t have meant too much. But this time, it was so difficult to measure their implications that the judge remembered them a year after the trial ended.

***

“Is the Guatemalan justice system politicized?”

“Very much so. The judicial process begins with the peace courts and reaches the courts of first instance, where we are located. All of us undergo a selection and evaluation process and then are named for a period of five years. But what happens with the Supreme Court magistrates, the appeals judges and the Constitutional Court?

“I don’t know. Tell me.”

“They come from outside. Many of them have never been judges, and are supported by political parties and business groups. And that compromises all of their actions. There have been many people who have reached the Supreme Court due to their political connections and patrons. There are always groups trying to get in. That’s why I do not believe there is any guarantee they will really administer justice.

“You are painting a dark picture. You are pessimistic.”

“I’m just being honest. Look, I live in Guatemala, and I’ve seen that as soon as they are sworn in, Supreme Court judges start holding breakfast and lunch meetings, discussions, chats, with powerful economic groups. I, as a judge, would not sit down with them. I dedicate myself to my work and I do not want to compromise my decision making. I have enough to eat, I have the basics. Many want to have more and to live in luxury, and for that reason they forget about justice.

***

Before the forced resignation of Attorney General Conrado Reyes in 2010, the CICIG had already shaken up the Guatemalan justice system with another public critique. On October 6, 2009, Commissioner Castresana claimed a group of lawyers was trying to take control of the Supreme Court of Justice for their own benefit. He said six of the 13 final candidates for Supreme Court posts were tied to a lawyer and businessman who, in secret, had pulled the strings to put them there: Roberto Lopez Villatoro, known popularly and scornfully in Guatemala as “the King of Tennis Shoes.” His nickname is the result of an old public award for shoe sales.

It has been written that he embodies a sector of emerging businessmen, enriched in the shadows of the state, and that during the past decade he personally has disputed with the CACIF for control of the Supreme Court, the College of Lawyers and the Supreme Electoral Tribunal, which used to be an exclusive breeding ground for his influences. Lopez Villatoro is a public figure that moves fluidly through the system’s gray areas. He is an operator that people lean on when they need shortcuts, political solutions to legal problems or pseudo-judicial solutions to political disputes.

***

“I have a friend who says Guatemala is a chessboard and that the king is a queer — a homosexual — the queen a whore, and the bishops from both sides negotiate amongst one another. A perfect round table,” Lopez Villatoro said during an interview.

Between the lines, the King of Tennis Shoes was telling me he was a bishop.

***

As though all paths in Guatemalan politics led back to Rios Montt, Lopez Villatoro was married to Zury Rios, the daughter of the former dictator and the former vice president of Congress. In 2009, the CICIG said they were investigating him for possible illicit dealings, but they never charged him or proved anything. Nor did they manage to stop the magistrate election process. Three of the lawyers he supported currently sit in the Supreme Court. Gustavo Berganza, one of the journalists who has best described Guatemala’s power battles, says he is much more influential today than when they tried to take him down five years ago.

***

The Guatemalan justice system is in an ever-more open battle. It is clear in the simple existence of a figure like this bishop and his army of pawns disputing power with the old kings. It is also seen in the years of audacity of Paz y Paz and in the ephemeral sentence handed to Rios Montt. Not even the Constitutional Court is totally removed from the battle between the influential groups. The February 5 decision that cut Paz y Paz’s time in office was unanimous, but the annulment of the first sentence against the ex-dictator was not. It was resolved in a divided vote, three against two.

Lopez Villatoro, distanced from romanticism and tied to his interests, has declared the game is on. It is evident that he believes that those who are patient and cautious will win.

Caution is an ever-more common virtue. Since the Constitutional Court ordered the repetition of the trial against Rios Montt, more than 90 judges have refused to hear the case. They don’t want to be the new Yassmin Barrios or the future Pablo Xitumul. One might think they have opted out because they don’t want to challenge the elites, but how can it be explained that there are not three judges interested in earning the CACIF’s favor by absolving the ex-dictator either? The calculations are very complex and have nothing to do with the ideals of justice. The judges with ambition fear that the unity of the right wing groups will only be temporary, that the tables will continue turning and that, whatever their decision, time will put them on the wrong side.

*Valeria Guzman contributed reporting to this article. A version of this article originally appeared in El Faro’s Sala Negra, and excerpts were translated and reprinted with permission. See original here

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