The Trial Order

Under Guatemalan law, the judge should have held an oral hearing on the evidence within 15 days of the prosecutor's presentation of the accusation. Based upon that hearing, the presiding judge determines whether the evidence produced is sufficient to warrant ordering a trial. Under Guatemalan law, this hearing is normally conducted by the First Instance judge. However, based on this judge's mishandling of vital matters during the investigation phase, Helen Mack petitioned the Appeals Chamber on June 22, 1998, to remove the judge from the proceedings prior to the oral hearing. The proceedings in the First Instance Court were stayed from June 22, 1998, pending the decision of the Appeals Chamber, which decided on September 17, 1998,⁷ to remove the judge from the case and transfer the case⁸ to the Second Court of First Instance in Criminal Matters, Narcotrafficking, and Environmental Crimes. Judge Henry Monroy set the hearing date for January 27, 1999. At the end of 1998, the contract of the public prosecutor that had overseen the investigative phase was allowed to expire, and a new prosecutor was assigned.

The hearing on the evidence was held on January 27, 1999, two days after the State Department statement was released. The following day, Judge Monroy made the historic ruling that there was sufficient evidence to merit a criminal trial of the three officers. The case was then sent to a three-judge trial court of the Third Court of Criminal Sentencing, where it was further delayed by complex proceedings, including an application to remove one of the judges on the grounds of previous involvement in earlier stages of the proceedings. More troubling were the defendants' frivolous challenges to the trial court's jurisdiction to hear the case, arguing that the case should be transferred to military tribunals. The trial court rejected the motion, and denied an appeal of the rejection. Defense counsel then filed a special complaint motion to an appeals court challenging the trial court's rulings. This appeal has recently been rejected as well,⁹ leaving no impediment to moving toward trial. At this stage, under Guatemalan law, the trial court could notify the parties that they have eight working days to indicate the evidence that they intend to produce at trial. After that period expires, the trial court could then set a trial date. So far, the court has taken no such action. Because Guatemalan justice lacks effective mechanisms to deter and sanction frivolous proceedings, there is no guarantee that the case will move forward in the near future. Instead, the defendants have initiated amparo proceedings, which could delay the trial another year or more. The amparo, which is an extraordinary constitutional remedy designed to guarantee civil rights, has been frequently and frivolously used in human rights cases in Guatemala to paralyze criminal proceedings. next>>