At a hearing on August 12 in the Molina Theissen enforced disappearance case, the Attorney General’s Office was prepared to present new charges against the four defendants in the case, all high-ranking military officials from the worst years of Guatemala’s internal conflict. Prosecutors also had a surprise: they intended to present a formal accusation against Benedicto Lucas García, the brother of former dictator Romeo Lucas García and head of the Military High Command (Estado Mayor del Ejército) between 1978 and 1982. Lucas García is currently being prosecuted, along with seven other military officers, in the CREOMPAZ case. In this intermediate phase of the proceedings, the court will determine whether the case should proceed to trial.

However, the hearing was delayed because the Prosecutor General’s Office (PGN) only recently joined as a third party to the case and did not yet have access to the case file. The PGN, which acts in representation of the interests of the state of Guatemala, is a separate institution from the Attorney General’s Office, an autonomous institution charged with upholding the law of the land. The plaintiffs petitioned the PGN’s intervention to ensure that the Guatemalan state is party to the case. This means the state of Guatemala is required to respond for the actions of public officials acting on its behalf so that the state, not just the accused individuals, can be held liable in the proceedings.

The hearing was marked by tense moments of confrontations. After the hearing concluded, the lawyers and relatives of the military defendants verbally and physically assaulted journalists who were covering the proceedings and taking photographs of the former military officials.

Details of the hearing

For the first time, the Molina Theissen case was heard before High Risk Tribunal “C,” with Judge Víctor Hugo Herrera presiding. As previously reported, the case was transferred into the high risk court system after a successful appeal by the plaintiffs. It should be noted that High Risk Tribunal “C” is relatively new, compared to peer high risk courts “A” and “B.”

At the hearing, counsel for Hugo Ramiro Zaldaña Rojas, one of the accused, stated that they had appealed the decision to transfer the case to the high risk system. Other lawyers for the defense, as well as Zoe Denomí Paiz González for the PGN, supported this motion. She also criticized the stance of the Attorney General’s Office, saying that as an institution of the state, it should be defending state interests.

Erick de León, public prosecutor for the Attorney General’s Office, countered these arguments, saying that the Supreme Court of Justice ruled to have the case moved to the high risk court system, thus there was no reason for further delay. He also stated that effective judicial protection required quick and efficacious access to justice. With this in mind, he stated, there was no reason to suspend the hearing. UDEFEGUA and other human rights organizations have denounced undue delays in the proceedings, primarily the result of appeals presented by the defendants to detain the proceedings.

Dr. Alejandro Rodríguez, who represents the Molina Theissen family, also asserted that there was no juridical reason to suspend the hearing. The filing of an appeal does not result in the automatic suspension of proceedings unless there is a resolution granting a provisional protective measure (amparo), which is not the case here. He reminded the tribunal that the Inter-American Court for Human Rights has referred on several occasions to the abusive use of amparos as a means of obstructing justice, and called upon the judges to avoid decisions that prevented judicial proceedings in these cases from moving forward.

Judge Herrera Ríos determined that given that no provisional amparo has been handed down, the tribunal has the right to continue to hear the case. At the same time, he determined it was necessary to provide the PGN time to study case, leading him to suspend the hearing for one week. The judge ordered the Attorney General’s Office to provide the PGN with a copy of the 22 case files, which contain 4,574 pages outlining the evidence presented in the case, as well as the formal accusation that was presented against the four original defendants on April 8, 2016.

At the hearing, scheduled for August 19, the accused will offer their initial declarations. They are also requesting to be freed from prison and subjected to house arrest. The Attorney General’s Office will also present the new charges against Lucas García.

Intimidation of the press

There was a great deal of tension before, during, and after the hearing took place.

Before the hearing, photographers seeking to capture an image of the five accused former military officials were accosted and harangued by the relatives of the accused and then their lawyers, who were seeking to impede photographs from being taken. A legal assistant for Jorge Alfonso Lucas Cerna, Benedicto Lucas García’s son and lawyer in this and the CREOMPAZ case, confronted several reporters, pushing them away from the area where the defendants were sitting. He also confronted human rights defenders who were present, at one point even threatening to meet them outside the Tribunals Tower where the hearing took place to give them their “just desserts” with a few punches. Prensa Comunitaria published a video on their website documenting the incident.

Security guards, who are members of the National Police, also sought to prevent photographers and journalists from entering the room where the hearing was taking place. They told the journalists they had “superior orders” not to allow them in. However, after the journalists protested vigorously about their right to witness and cover the proceedings, they were let into the room. There was another round of confrontations at the conclusion of the hearing as photographers again sought pictures of the accused.

Case Background

Several members of the Molina Theissen family were dissidents opposed to military rule. Military authorities arrested Carlos Molina, the father of Marco Antonio and Emma, in 1955 and 1960, then expelled him from the country. Marco Antonio and Emma’s sister, Ana Lucrecia, was a student leader and a member of the Guatemalan Workers Party (PGT). Emma was a militant of the Patriotic Worker Youth (Juventud Patriótica del Trabajo) along with her boyfriend.

In 1976, military authorities arrested, tortured, and raped Emma Molina Theissen, a militant of the Patriotic Worker Youth (Juventud Patriótica del Trabajo), and killed her boyfriend along with two others. Emma was arrested and tortured again in 1981, but she escaped from detention. The following day, two armed men entered her family’s home, beat her mother, and kidnapped her brother, 14-year-old Marco Antonio, driving off in an official vehicle. According to the Commission for Historical Clarification, it is believed that members of the intelligence section of the military, or G-2, dressed in civilian clothes, disappeared Marco Antonio in retaliation for the family’s activism and his sister’s escape.

The Molina Theissen family lodged a complaint with the Inter-American Commission of Human Rights in 1998. The Guatemalan state recognized its responsibility, and in 2004, the Inter-American Court for Human Rights urged Guatemala to investigate and prosecute those responsible for Marco Antonio’s disappearance.

The four accused were arrested on January 6, 2016, and remain in preventive custody and are awaiting a ruling by the first-instance court to determine whether there is sufficient evidence to go to trial. The proceedings have been delayed primarily because of numerous appeals presented by the defense to have the charges dismissed. Lucas García was arrested on January 6 in relation to the CREOMPAZ case.

The defendants in the Molina Theissen case are:

• Manuel Antonio Callejas Callejas, former director of intelligence (G-2) of the Military High Command. Accused of enforced disappearance and crimes against humanity.
• Francisco Luis Gordillo Martínez, former commander of Military Zone 17 (MZ17) – Quetzaltenango. Accused of enforced disappearance and crimes against humanity.
• Edilberto Letona Linares, ex second commander of MZ17 – Quetzaltenango. Accused of enforced disappearance and crimes against humanity.
• Hugo Ramiro Zaldaña Rojas, former intelligence offical (S-2) of MZ17 – Quetzaltenango. Accused of enforced disappearance, crimes against humanity, and aggravated assault.
• Manuel Benedicto Lucas García, former chief of the Military High Command. Accused of enforced disappearance and crimes against humanity.

Jo-Marie Burt is an associate professor of political science and director of Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). This report was prepared with the assistance of Paulo Estrada, human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.