US embassy cable - 05GUATEMALA554

UNCLAS SECTION 01 OF 02 GUATEMALA 000554 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PHUM, PGOV, EAID, ASEC, MASS, SNAR, GT 
SUBJECT: GUATEMALAN COURT DECISION DELIVERS SETBACK, NOT A 
FATAL BLOW, TO MASSACRE CASE 
 
 
1. SUMMARY:  On February 16, Guatemala's Constitutional Court 
issued a clarification of its earlier decision in the appeal 
of Reyes Collin Gualip, one of 16 soldiers implicated in the 
1982 Dos Erres massacre.  The court reiterated that the case 
against Gualip cannot proceed without a decision from the 
Third Appellate Court, which must decide if the accused is 
immune from prosecution under the 1996 "Law of National 
Reconciliation."  Importantly, the clarification puts to rest 
fears that all judicial processes completed since 1996, 
including key witness testimony, were nullified by its 
earlier decision. But two worries remain:  First, if the 
Third Appellate Court judges Mr. Gualip immune from 
prosecution, it would automatically confer immunity to the 
other 15 defendants.  It would also set a precedent, 
effectively ending the possibility of prosecuting 
perpetrators of war crimes in Guatemala.  Second, even if 
Gualip is denied amnesty, a series of individual appeals 
threaten to delay prosecution, and with it justice for the 
victims, indefinitely.  END SUMMARY. 
 
Background 
---------- 
 
2.  On December 6-8, 1982, a military unit with soldiers 
based in Retalhuleu and Peten allegedly massacred almost 300 
civilians in Dos Erres, a small settlement in the Peten.  In 
1994, at the petition of FAMDEGUA (Families of the Detained 
and Disappeared of Guatemala), forensic scientists exhumed 
162 remains, many of women and young children, from a well in 
the former village. Additionally, in the late 1990s, two 
former members of the accused military unit came forward to 
give testimony against other soldiers.  FAMDEGUA filed a case 
with the Inter-American Commission and, in 2000, the 
Inter-American Court ruled against the GOG.  The GOG agreed 
to pay reparations to the families of victims (which it did, 
under former President Portillo) and pursue due process in 
national courts.  Dos Erres is a high-profile case due to the 
barbarity of the crimes committed and is unique for its 
testimony by supposed collaborators that links the accused to 
the crimes. 
 
The Law of National Reconciliation 
----------------------------------- 
 
3.  The 1996 Law of National Reconciliation absolves 
Guatemalans of penal responsibility for political crimes 
committed during the civil conflict.  Nevertheless, it 
specifically states that "the law will not be applied to 
crimes of genocide, torture, and forced disappearance..." 
The law also states that an appellate court, one specifically 
empowered to hear cases involving war crimes, must first 
determine whether a case involves one of these exceptions 
before the prosecution can proceed.  The Third Appellate 
Court set a precedent with the Rio Negro case, in which it 
ruled that the Public Ministry could prosecute three former 
members of the armed paramilitary PAC (Civilian Self-Defense 
Patrol) for that massacre, leading to the first war crimes 
convictions in Guatemala.  Consequently, sending the case to 
the Appellate Court will not necessarily terminate the case. 
 
The Constitutional Court Grants the Appeal 
------------------------------------------ 
 
4.  Gualip claims amnesty under the 1996 Law of National 
Reconciliation.  Previously, the Twelfth and Tenth Appellate 
Courts declined to hear his appeals.  Gualip then appealed to 
the Constitutional Court.  In its decision, the 
Constitutional Court granted the appeal and ordered 
suspension of all judicial proceedings against the defendant 
until the Third Appellate Court determines the applicability 
or not of the Law of National Reconciliation. 
 
The Constitutional Court Clarifies 
---------------------------------- 
 
5.  The CC published two decisions in this case: the December 
2004 judgment, published February 4, and a clarification of 
that decision, published February 16.  The vague wording of 
the first decision raised alarms with prosecutors and human 
rights activists, since it could be read to automatically 
nullify every legal process completed in the case since 
December 18, 1996.  Since key witness testimony appeared to 
fall within that category, prospects for prosecuting the 
case, even with a favorable decision from the Third Appellate 
Court, looked grim.  Accordingly, FAMDEGUA petitioned the 
court for a clarification of its decision.  The February 16 
clarification specifically protected the witness testimony 
and made clear that other penal processes would only be 
invalidated if the defendant is judged immune under the 1996 
law. 
 
Legal Appeals Delay Prosecution 
------------------------------- 
 
6.  To date, more than 30 individual and group appeals have 
been filed by attorneys on behalf of the 16 defendants. 
Since the case cannot move forward until all appeals have 
been resolved, it is presently stalled in the Court of First 
Instance, a court charged with investigating and hearing 
evidence prior to trial.  FAMDEGUA's principal complaint is 
that the courts have failed to group the appeals and issue a 
single decision.  FAMDEGUA charges that by hearing the 
appeals individually, courts are failing in their 
responsibility to expedite the processing of a high-profile 
case and, worse, may be complicit in prolonging it. 
 
Next Steps 
---------- 
 
7.  Frank LaRue, the head of COPREDEH (President's Commission 
on Human Rights), commented to us that the ruling was by no 
means a defeat, only a setback.  He referred to the similar 
setback in the Rio Negro massacre case, which was ultimately 
prosecuted successfully. 
8.  Public Ministry Special Prosecutor Ana Patricia 
Lainfiesta told poloff that the Constitutional Court violated 
procedural rules by failing to inform her office, which has 
handled the case since the late 1990s, of the proceedings. 
On that basis, her office petitioned the court to reconsider 
its December decision and hold a new hearing.  As of March 1, 
her office had received no response to that petition.  If the 
Constitutional Court refuses to rehear the case, prosecutors 
will have no choice but to take the case to the Third 
Appellate Court as instructed. 
 
9.  FAMDEGUA issued an official statement on Feburary 25 in 
which it responded to the latest Constitutional Court 
decision.  The statement characterized the court's decision 
as "contradictory and diffuse," but is not specific about its 
inadequacies.  It also accuses the court of "sponsoring 
impunity."  FAMDEGUA proposes no action, and appears to be 
awaiting the next judgment. 
 
Comment 
------- 
 
10.  Since the Law of National Reconciliation is unambiguous 
in its requirement that application of the law in war crimes 
cases must be decided by a specifically empowered appellate 
court, the Constitutional Court's decision to send the case 
to the Third Appellate Court should have been expected.  That 
said, both the Public Ministry and human rights NGOs complain 
about procedural issues, excessive delays, and vague wording. 
 Such problems are neither new nor rare and cripple 
Guatemala's judicial proceedings.  Although the pace of 
Guatemala's court cases is frustratingly slow, we have also 
found that human rights activists can be indifferent to the 
due process rights of defendants, particularly when they are 
ex-military.  In the best scenario, the Third Appellate Court 
will continue the precedent it set in the Rio Negro case and 
determine that the Law of National Reconciliation does not 
apply to defendants in the case of Dos Erres. 
HAMILTON