The Investigative Phase

After months of delays and complex proceedings relating to both the appropriate Code and the amnesty matter, the case was finally transferred to the First Court of First Instance in Criminal Matters, Narcotrafficking, and Environmental Crimes (el Juzgado Primero de Primera Instancia Penal, Narcoactividad y Delitos Contra el Ambiente ) in February 1998. At that point, the case was in still in its preparatory/investigation phase. Under Guatemalan criminal procedure law, the investigation phase should have been concluded within six months of the June 1996 indictment. However, due to the interruptions described above (during which no additional investigative measures were authorized),⁴  the closing date was fixed at June 23, 1998.

The major concern during this period was the presiding judge's failure to handle, in a timely fashion, several of the prosecution's legitimate requests related to vital matters such as the gathering of evidence. This had the effect of irreparably prejudicing the prosecution's case, as the military continued to thwart prosecution efforts to obtain relevant documents by restricting them on national security grounds. Judicial relief was not forthcoming, although article 244 of the new Criminal Procedure Code empowers the presiding judge to review documents and determine whether they are in fact properly restricted.

On March 25, 1998, the Public Prosecutor requested, pursuant to Article 244, that the presiding judge require the Ministry of National Defense to deliver relevant evidence.⁵  The Public Prosecutor also requested that the person responsible for disclosing those documents be subject to the rules of contempt of court, in case of failure to comply. The judge rejected the Public Prosecutor's request on March 26, 1998, on the ground that contempt of court could be ordered only after a previous order for disclosure had been disobeyed. The Public Prosecutor reformulated his request and, on May 14, the judge ordered the Ministry of Defense to produce the requested documents within eight days. To date, those documents have not yet been provided or made available for review by the judge. Neither the First Instance Judge nor the Public Prosecutor took any further action in respect of the Ministry of Defense's failure to comply with the order within the prescribed time limit. Since then, the military has continued to provide patently non-responsive replies to other informational requests.

In 1996, the military court had ordered testimony from witnesses of the crime who are exiled in Canada after being threatened and/or attacked for their involvement in the Beteta prosecution. After the case was removed from military jurisdiction, no further action was taken on that court's order. However, on March 5, 1998, Helen Mack requested that the new civilian judge resume the order to obtain the testimony. The judge delayed taking action until June 23, 1998, the closing date of the investigation. On that date, the Public Prosecutor had no alternative but to present the charges against the accused without the new testimony of the witnesses in Canada, jeopardizing the admissibility of this crucial evidence at the trial stage.⁶  On July 13, 1998, the Supreme Court remitted the request to the Ministry of Foreign Affairs, who in turn transmitted it to the Canadian authorities. To date the matter remains unresolved, in spite of inquiries from the complainants.

The termination of the investigative phase meant that Helen Mack was forced to submit her arguments in support of an order for trial without the benefit of crucial evidence. In the event that such evidence becomes available at a later stage, her ability to develop investigations on the basis of its contents, and to make optimal use of such information at trial, could be irreparably compromised. Human Rights First, through its pro bono counsel, has sought to partially compensate for this difficulty by seeking release of a considerable body of formerly classified U.S. documents relevant to the Mack case and the structure of the EMP. On January 25, 1999, the State Department issued a statement that reveals the U.S. view-formulated prior to Beteta's trial-that if the murder was politically motivated, superior officers could face legal responsibility for the crime. next>>