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Home EJIL Analysis What implementation of judgments looks like – or doesn’t? –: the case of the Molina Theissen family in Guatemala

What implementation of judgments looks like – or doesn’t? –: the case of the Molina Theissen family in Guatemala

Published on July 2, 2018        Author: 
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On 27 September 1981, Emma Molina Theissen, member of the Patriotic Labor Youth, was detained by the armed forces and taken to the “Manuel Lisandro Barillas” Military Barracks (MLB-MB), where she was subjected to psychological and physical torture, including sexual violence. She was deprived of food and water, losing so much weight that, after nine days, on 5 October, she was able to slip off the handcuffs and escape. Attempting to recapture her, on 6 October, members of the Army went to the family residence, searched the house and, not finding her, took her 14-year-old brother, Marco Antonio. Their mom, Doña Emma Theissen Álvarez de Molina, witnessed everything. Marco Antonio remains disappeared since that date. While the family was forced into exile, they have never stopped searching for him and have never ceased in their efforts to obtain truth, justice and reparation.

This post, product of the ESRC Human Rights Law Implementation Project, explores the domestic-international interplay regarding implementation of reparations ordered by the Inter-American Court of Human Rights (IACtHR) in the Case of Molina Theissen vs. Guatemala; more specifically, in relation to the historical domestic proceedings of early 2018.

International realm

With a compromised judiciary, the Molina Theissen family turned to the Inter-American System of Human Rights (IASHR). In 2000, then-President of Guatemala Alfonso Portillo acknowledged the State’s “institutional responsibility” in this and other cases pending before the Inter-American Commission on Human Rights (IACHR); later reiterated before the IACtHR (paras. 7, 34-39). In 2004, the IACtHR ruled on the Merits and Reparations and Costs. The orders and their implementation are as follows:

This panorama is similar in other cases regarding Guatemala’s internal armed conflict, where, “although it is common to observe at least partial compliance with the payment of reparations of economic nature, the measures of satisfaction of the victims, and of acknowledgment of state responsibility, the same does not occur with reparations related to justice” (CEJIL, p. 28; pp. 71-72) or others of a structural nature, which are fundamental for victims and rule of law (CEJIL, pp. 20, 28).

For Marco Antonio’s sister, Lucrecia, “Justice is the articulating axis of the other reparations and, although they are different in nature, compensation, symbolic measures, structural and legislative changes, all essentially contribute to the realization of justice” (p. 53). For this family, justice came closer than ever in 2018, after 37 years, with the Guatemalan judiciary going some way in complying with an order falling under its jurisdiction: the investigation, prosecution and punishment of those responsible for Marco Antonio’s forced disappearance.

Domestic realm

On 23 May 2018, after 23 days of hearings –spanning 84 days–, High-Risk Tribunal “C” unanimously convicted four retired high-ranking military officers “once considered untouchable”. In the 1075-page judgment, Hugo Ramiro Zaldaña Rojas (Officer, Second Intelligence Section S-2, MLB-MB General Staff), Francisco Luis Gordillo Martínez (MLB-MB Commander), Manuel Antonio Callejas y Callejas (Chief, Second Intelligence Section G-2, Army General Staff), and Manuel Benedicto Lucas García (Chief, Army General Staff) were sentenced each to 25 years in prison for crimes against humanity and 8 years in prison for aggravated rape against Emma. Zaldaña Rojas, Callejas y Callejas, and Lucas García were also sentenced each to 25 years in prison for Marco Antonio’s forced disappearance. Edilberto Letona Linares (MLB-MB Second Commander) was acquitted. In determining the legal classification of the facts attributed to them and their criminal responsibility, the Tribunal –commendably– conducted a control of constitutionality, conventionality and complementarity, citing Guatemala’s “relative sovereignty” as part of the international community (pp. 1014-1025).

Subsequently, the “dignified reparation hearing” was convened (Article 124, Criminal Procedural Code -CPC-, p. 103). The right to dignified reparation was introduced in 2011 seeking to “eliminate the injustices, permanently and recurrently, endured by the victims of crimes in the search for effective judicial protection” (reasons to reform in Pérez Samayoa, p. 14); and to “ensure the active participation of the passive subject of the crime and include the possibility to provide an effective and adequate reparation” (p. 6). In exercising this right –as previously stated–, the family did not request compensation, which they received based on the IACtHR’s judgment. Instead, they requested that the convicts reimburse the State for said compensation; which the Tribunal did not grant, referring that it is a right of the State, and distinguishing the nature of reparations at the international and domestic jurisdictions. Ultimately, the Tribunal determined that “the State of Guatemala is condemned to strictly enforce [a series of] integral and transformative reparations”; ordering specific authorities to adopt eight measures of protection, satisfaction and non-repetition. Three additional orders merit further discussion: 1) that Congress approve, as soon as possible, Draft Bill 3590 creating a Commission to Search for Disappeared Persons; 2) that Congress legislate, within a reasonable time, the creation of a National Registry of Victims of Forced Disappearance; and, 3) that the State of Guatemala comply, within a reasonable time, with the pending reparations decided by the IACtHR (pp. 1063-1075).

Regarding the orders attributed to Congress, it should be noted that Draft Bill 3590, introduced in 2006, resulted from national and international civil society efforts; thus, its statement of reasons emphasizes Guatemala’s international human rights obligations and its acknowledgment in the Molina Theissen case (pp. 2-3). However, in 2012, the UN Human Rights Committee expressed its concern that the commission and registry had still not been established, and took note of the State’s public commitment to include the bill’s adoption in the legislative agenda (para. 21). On its part, the IACtHR ordered Guatemala to promote the bill’s approval –noting the Executive’s commitment in this regard– (García and Family Members, Op. para. 10; paras. 220-221) and urged it to ensure the commission’s creation (Gudiel Álvarez et al. “Diario Militar”, para. 335). In 2016, the IACHR noted the “pressing need” to approve this law (paras. 127-128). Despite these reiterated calls by the international community, Congress has stalled for over 11 years, failing to implement its part of Guatemala’s international human rights obligations. Now, High-Risk Tribunal “C” has directly ordered it to approve the bill as soon as possible and to legislate the creation of the national registry. In this regard, it should be noted that the latter could be a consequence of compliance with the former; as Draft Bill 3590 (Articles 14(b), 25) contemplates the design and management of such a registry by the national commission. Thus, with the bill’s adoption, Congress would not only be fulfilling both orders of High-Risk Tribunal “C”, but also fully complying with the IACtHR’s order in García and Family Members, as well as aiding in the eventual compliance of some of the IACtHR’s reparations in the Molina Theissen case.

As to the order addressed at the State of Guatemala, several issues arise. First, in an interesting exercise of domestic reinforcement of international jurisprudence, High-Risk Tribunal “C” ordered the State “to comply, within a reasonable time, with the restitutions in dignified, integral and transformative reparation decided by the [IACtHR] which are pending compliance” (pp. 1069-1070). In this regard, it should be noted that IACtHR judgments are binding and self-executing in Guatemala (Barrientos, pp. 2-3). As such, the four pending obligations (supra) are in force now, as they have been since 2004; thus, Guatemala’s duty to comply with them is not necessarily tied to the domestic judgment’s execution. Nonetheless, when the domestic judgment does become res judicata (Article 493 CPC, p. 154), it is forwarded to the execution judge (p. 1068) who is responsible for “the execution of sentences and everything related to them” (Article 51 CPC, p. 94). While the four pending measures do not necessarily fall under the judiciary’s competence for their direct implementation, what is certain is that, through this order, the judicial authorities will be perfectly placed to monitor and promote the domestic implementation process of the international orders; thus, actively participating in a role traditionally left to the Executive Branch (infra).

Second, in ordering compliance with the IACtHR’s reparations, High-Risk Tribunal “C” specifically named the Procurator General’s Office (PGN), “as representative of the State of Guatemala, to undertake and promote their effective implementation in the corresponding instances”; reminding its duty to advise State authorities of their role regarding certain decisions, and recalling the Executive’s power to introduce legislation (pp. 1069-1070). While it is true that the domestic and international representatives of the State are, respectively, the PGN and the Ministry of Foreign Affairs, it should be noted that, in practice, it is usually the Presidential Commission Coordinator of the Executive’s Policy on matters of Human Rights (COPREDEH) –through delegation by the President or the PGN– who appears before international human rights fora in contentious and non-contentious engagements (pp. 27-40); coordinating, both, the preparation of its interventions and the implementation of the outcomes.

Regardless of the distribution of functions, State institutions can and should coordinate, through their respective mandates, the actions necessary to, either, directly implement, or promote implementation by the corresponding entities; thus, bringing Guatemala into compliance with its international human rights obligations. But the institutional landscape is worrisome as to the political will required for this.

For example, in the domestic proceedings of the Molina Theissen case, the PGN –sued as civil third party– overlooked the State’s acknowledgment of responsibility and acted more like a sixth defense lawyer asserting, among others, that the proceedings were financially and politically motivated, that the Army had defended national sovereignty, and that the Attorney General’s Office (Ministerio Público) should be protecting State interests. Furthermore, at least twice, it referred that the IACtHR’s judgment had been complied (July 2017, March 2018); while in its conclusions, it stated that the pending reparations were outside its competence (Boletín 20). Clearly, instead of promoting implementation, it was defying it.

On its part, COPREDEH is a pendulum. From 2000, it acknowledged international responsibility and implemented certain reparations (pp. 3-4). Between 2012-2015, it challenged the IACtHR’s competence in cases with final judgments; leading Guatemala to be declared in “evident contempt”. Then, its position shifted, when it resumed its duty to inform on compliance with these cases (paras. 25-29), hosted the IACtHR’s sessions and welcomed the IACHR’s on-site visit. Although the current position is unclear, COPREDEH’s newest President stated –rather ambivalently– before the Foreign Affairs Legislative Commission, that commitments should continue to be complied with, that the State’s responsibility cannot be easily compromised, that COPREDEH should not be representing the State, and that it has been disastrous for the State that previous COPREDEH Presidents have said Guatemala is a “genocidal State and human rights violator” (pp. 1-4).

As to other actors who should promote and/or implement decisions of this nature, the outlook does not inspire much confidence. Guatemala’s President, Jimmy Morales, of the National Convergence Front -FCN- (founded by former army officers and now home to legislators from former President Perez Molina’s extinct Patriotic Party; The Economist), is adamant on expelling the International Commission against Impunity in Guatemala (CICIG) and its supporters, despite –or because of– its ground-breaking achievements against corruption (Lakhani, The Guardian). In Congress, Draft Bill 5377, seeking to grant full amnesty for crimes committed during the armed conflict (thus, nullifying all judgments and on-going proceedings) is moving forward. As for the media –“closely tied with political and commercial interests”–, it sometimes lends itself to strategies aimed at delegitimizing high-risk adjudication, particularly in cases concerning serious human rights violations (ICJ, p. 136).

With this panorama, it is pertinent to recall Lucrecia Molina Theissen’s statement:

In our hands, the judgment of the [IACtHR] is a fundamental instrument to achieve domestic justice and overcome the structural obstacles which limit and weaken it. It provides us a firm ground to fight against the lack of political will of the State, whose institutions continue to be under the pernicious influence of the perpetrators. (p. 49)

Now, the family can also rely on High-Risk Tribunal “C”’s judgment, particularly, as it cautioned that its orders must be strictly enforced “under the corresponding legal warnings” (p. 1068); meaning that legal consequences could ensue for the identified authorities who disregard them. Whether these consequences could extend to non-compliance of autonomous IACtHR orders is to be further analyzed.

Concluding comments

Since 1998, the IACtHR has decided 25 cases against Guatemala (second only to Peru with 41, since 1995), of which only one is fully complied (Maldonado Ordoñez). Indeed, implementation speed of IACtHR judgments is influenced by the number of orders, their nature and complexity (p. 65). But even accepting this premise, it cannot be said that Guatemala’s implementation record is particularly remarkable.

This is especially true regarding its duty to investigate, prosecute and punish those responsible for serious human rights violations. Of the 14 cases jointly-monitored by the IACtHR in this regard, only two are “partially complied”: Mack Chang, where the IACtHR was partially satisfied with two individual convictions (one, a fugitive), despite others’ involvement (CEJIL, pp. 71-72); and García and Family Members, where the IACtHR positively valued firm rulings against several high-ranking agents, but remains seized regarding other perpetrators (paras. 6-12).

In this context of impunity, High-Risk Tribunal “C”’s judgment is historic in itself; even more, considering the rank of those convicted. Moreover, it is significant regarding national reception of international law –still rare within the Guatemalan judiciary (ICJ, pp. 159-161)–, both, substantively (conducting a control of constitutionality, conventionality and complementarity) and instrumentally (ordering the State to comply with pending international reparations). Despite this, the IACtHR should not delegate follow-up of its orders to the domestic authorities; particularly, considering the context of inter-institutional coordination and political will –or lack thereof– in Guatemala. Furthermore, specifically regarding this case, it should exercise caution and not take a premature stance on the compliance status of the duty to investigate, prosecute and punish the direct perpetrators and masterminds of Marco Antonio’s forced disappearance. First, because, in line with this order, the Tribunal ordered the Attorney General’s Office to continue investigations into other perpetrators (p. 1068); second, because the judgment is subject to appeal and the Guatemalan judiciary has previously proved its backsliding abilities regarding cases of serious human rights violations.

Like other cases, the Molina Theissen case, evidences that a range of factors influence domestic implementation of international decisions, including international oversight, political will, civil society mobilization, and, crucially, the victims’ perseverance. But unlike other cases, the Molina Theissen case demonstrates that the role of domestic judiciaries is not limited to fulfilling their duty to investigate, prosecute and punish; rather, they can become catalysts for effective domestic compliance of outstanding international orders.

The Case of Molina Theissen vs. Guatemala (IACtHR) was one of the cases selected for detailed study under the ESRCHRLIP. As part of the project, the author was present at the first three hearings of the domestic trial.

Quotes from documents only available in Spanish have been translated by the author.

 The author has previously worked for the Inter-American Commission on Human Rights (IACHR) and the Center for Justice and International Law (CEJIL), representative of the victims before the IASHR. She attended the IACtHR private hearing of 16/May/2014 as an observer, but has not had a role in the process or outcomes of this case.

 

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