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RIGHTS-GUATEMALA: Legal Action by Activists Against Judges Stymied

Inés Benítez

GUATEMALA CITY, Jan 24 2008 (IPS) - A Guatemalan court rejected accusations lodged by Coordinación Genocidio Nunca Más (Genocide, Never Again) Wednesday against the members of the Constitutional Court, which in December blocked the extradition to Spain of seven people accused of crimes against humanity.

“We have prepared an appeal for reversal, asking the judge to set aside his decision because, in our view, it is mistaken and contravenes the law,” Benito Morales, a lawyer for the Rigoberta Menchú Tum Foundation (FRTM), told IPS.

On Dec. 12, 2007, the Guatemalan Constitutional Court annulled the prosecution for genocide, under way in Spain, of five generals, including former dictator Efraín Ríos Montt (1982-1983) who is currently a member of parliament, and two civilians, arguing that Spain has no jurisdiction over crimes committed in Guatemala.

On Jan. 17, indigenous leader Rigoberta Menchú, winner of the 1992 Nobel Peace Prize, together with the Genocide, Never Again group, brought a lawsuit before a local court against judges Mario Pérez, Gladys Chacón, Roberto Molina, Alejandro Maldonado, and José Rolando Quesada of the Constitutional Court, complaining their decision was biased.

The previous day, the Spanish National Audience – high court – which deals with important criminal, administrative, and labour cases, cancelled its official requests to the Guatemalan judicial branch with regard to the case of the seven accused for crimes against humanity. This was “in view of the refusal of the country’s authorities to cooperate,” Spain said.

The Spanish court document went on to call on “victims, interested parties and witnesses” to come forward and provide information to it directly about these crimes.


Menchú – who created the Foundation that bears her name – laid charges before the Spanish National Audience in 1999 of genocide, torture, state terrorism, and other crimes against humanity, perpetrated in Guatemala during the civil war between state forces and the leftwing insurgency.

The Spanish court investigated these charges and issued international warrants for arrest and extradition to Spain against Ríos Montt and other officials of his dictatorship, on Jul. 7, 2006.

At a press conference last week, Morales said that “we will prove that this is political discrimination, and we’ll see whether it isn’t also ethnic discrimination, because the accused are not indigenous people, and neither are the members of the Court, whereas the majority of the genocide victims are.”

According to the document from the Spanish court, 83 percent of those killed in the Guatemalan armed conflict – many of whom were tortured first – belonged to the Maya ethnic group, and 17 percent were mestizos (of mixed indigenous and European descent).

Close to 1.5 million people were forced to flee their homes, over 45,000 people remain disappeared, and 150,000 people sought refuge in Mexico.

The document also says that agents of the state committed 93 percent of the crimes. There were 667 massacres, and 430 villages were wiped off the map.

The Guatemalan court which threw out the complaint against the Constitutional Court based its decision on a law that says the magistrates of this Court cannot be persecuted for opinions expressed in the course of their duties.

However, Morales argues that the same article of the law also states explicitly that magistrates must exercise their duties impartially, which he considers a key issue in this case, and which the judge did not include in his ruling. “He has only quoted what suits him, and he mistakenly mutilates” the text of the law, Morales says.

The article in question starts with the sentence: “The Magistrates of the Constitutional Court shall perform their functions with independence from the body which appointed them and in conformity with the principles of impartiality and dignity inherent to their position.”

The charges laid against the Constitutional Court by the activists on Jan. 17 say that the magistrates who signed the resolution showed a marked preference for certain persons and bias against the constitutional rights of the victims of crimes against humanity.

The complaint added that the Constitutional Court magistrates have by their action taken the position of genuine defenders of persons accused of crimes as atrocious as genocide, and by means of their resolution propose to block any judicial investigation into the perpetrators of that crime.

Morales said that the Constitutional Court’s decision to block the prosecutions “violates basic rights, and is biased because it is based on selected criteria in order to protect the accused.”

Considering the crimes to be political in nature, according to the lawsuit which has just been rejected by the Guatemalan court, “is a serious offence and violation of our dignity, and the dignity of thousands of victims in Guatemala.”

Since 2005, National Audience Judge Santiago Pedraz has been investigating the deaths of some 250,000 people during the military regimes that governed Guatemala with an iron fist between 1961 and 1996, and with particular harshness from 1978 to 1984.

Menchú announced she will travel to Madrid in the first half of February, to reaffirm her allegations before the Spanish court, which will shortly be taking statements from witnesses of the massacres that took place during the armed conflict.

On Jan. 16 the Spanish court requested of the media in Guatemala and the countries with which it shares borders – Belize, El Salvador, Honduras, Mexico, Nicaragua and the U.S. – “to publish a notice calling on victims, interested parties, witnesses and investigators to provide it with information about the genocide and other crimes committed against the Maya people in Guatemala.”

 
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