The New Proceeding: Fresh Obstacles

After several months of inexplicable delay in pursuing the new investigation, a (civilian) Special Prosecutor was finally appointed under the new CPC in September 1995. His investigation led him to conclude that Beteta's superiors-- Godoy, Osorio and Oliva--were the intellectual authors of Myrna Mack's murder. He obtained the testimony of more than 20 witnesses, among them the accused, Army Col. Julio Alpirez, Monseigneur Cabrera, Ex-President Ramiro de Leon Carpio, and others. This prosecutor also requested the production of preliminary evidence in order to obtain again the testimony of several witnesses who had fled the country after being threatened or attacked during the initial proceedings against Beteta.

The information gathered by the Special Prosecutor convinced the military judge to issue an indictment in June 1996 ³ -- probably the first time a Guatemalan court had indicted senior officers for such a crime. However, the judge did not order detention of the accused. Instead, he released them on bail with a requirement that they appear every two weeks to sign the Court registry. The Court of Appeals confirmed this decision.

Soon after the military judge issued the indictment, Guatemala's legislature dramatically reduced the jurisdiction of military tribunals so that they could hear only disciplinary offenses and other specific violations of the military code, and not common crimes committed by members of the military. This change put an end to a record of near total impunity for human rights crimes within the military justice system. Accordingly, cases pending before military judges were ordered transferred to the civilian courts by the Guatemalan Supreme Court.

This apparently positive development, however, led to a procedural downslide. The civilian judge who next received the case, Judge Ventura Oyo, almost immediately issued a stunning decision. More than 15 months into the new investigation, Judge Ventura decided that the Mack case should be heard under the superseded Criminal Procedure Code. An appeals court held that the decision was not appealable, and on October 15, 1996, the Guatemalan Supreme Court ordered the case to be tried under the old CPC. Based on that decision, the judges assigned to the case by the Supreme Court issued a decision in early December 1996 ordering the case against the three intellectual authors to be "accumulated" with Beteta's-ironically, precisely the position the prosecution had unsuccessfully advocated during the Beteta trial. In a subsequent clarification of this decision, the lower court decided that this accumulation rendered Beteta's conviction res judicata, preventing a new proceeding from beginning.

To escape this Catch-22 situation, Helen Mack and the Public Ministry filed an amparo petition with the Constitutional Tribunal concerning the Supreme Court's October 15 decision. On August 12, 1997--nine months after the petition was filed-- the Court granted the amparo petition and reinstated the indictment and underlying investigation against three military officials accused of ordering the murder.

In the meantime, however, peace accords signed in December 1996 between the Government and guerrilla groups called for the passage of a broad amnesty law, which would cover political crimes and related common crimes connected to the armed conflict. The three military officers accused of being the intellectual authors of Myrna Mack's stabbing were the first to apply for amnesty under Guatemala's subsequent National Reconciliation Act, filing their petitions to extinguish criminal responsibility on January 6, 1997. (Due to the case's international significance, the proceedings were watched closely to determine whether Guatemala's courts would properly apply the criteria, which restrict the amnesty to cases connected to the armed conflict.) In February 1997, a lower court rejected the application, holding that the street murder of an unarmed civilian was clearly not a case to which the amnesty was intended to apply. After the courts rejected several appeals and an amparo motion challenging the denial of amnesty, the three accused were, against all logic, permitted to file a second petition of amnesty on September 5, 1997. Although it did not succeed, it delayed the case further. next>>