Judge Víctor Hugo Herrera Ríos ruled last Thursday that there is sufficient evidence to send five high-ranking military officers to trial for the illegal detention, torture, and sexual violence of Emma Molina Theissen and the enforced disappearance of her 14-year-old brother Marco Antonio. The alleged crimes occurred in Guatemala in 1981.

Among the defendants are two decorated generals: Benedicto Lucas García, the former head of the High Command of the Guatemalan Army, and Manuel Callejas y Callejas, the former head of military intelligence. Lucas García also faces trial in the CREOMPAZ case, which has been referred to as the largest case of enforced disappearances in Latin America. The other three defendants are Luis Francisco Gordillo Martínez, Edilberto Letona Linares, and Hugo Ramiro Zaldaña Rojas.

Tensions before the decision

Four of the military officials in the case were originally arrested and charged on January 6, 2016. Lucas García, who had also been arrested on January 6 in relation to the CREOMPAZ case, was charged in the Molina Theissen case in August 2016. The proceedings have been characterized by numerous delays as well as high levels of tension, including intimidation of the press, Molina Theissen family members, and court observers.

This hearing was no different. As in past hearings, two individuals stood outside the court building with bullhorns shouting insults about the plaintiffs and the international organizations supposedly supporting them. One of the individuals continuously referred to the case as the “Mentira (Lie) Theissen” case. International observers walking into the court building were approached in an aggressive manner by a woman who warned them not to interfere in domestic Guatemalan affairs and told them to “go home.”

Inside the court building, as the defendants, civil parties, and national and international observers were waiting for the trial to begin, a woman identified as belonging to the Pro-Patriot League stood up and began shouting that the defendants were military heroes who saved the nation from communism. She also criticized the press for taking photographs, saying this was a violation of their due process rights.

“The presumption of innocence is being violated; the defendants should not be exposed before the press, as if they were animals in a zoo. Why don’t the human rights [groups] object to this? What happened to the presumption of innocence?” the woman said. She also took photographs of the observers in the courtroom and appeared to be forwarding them on her cellular device. She stopped speaking when a police officer told her to refrain from making comments or she would be escorted out of the courtroom.

Seconds later, the wife of Hugo Zaldaña Rojas, one of the military defendants, began yelling similar comments. She was sitting in the front row of the gallery, just inches from national and international observers.

“The money is going to run out on you. Mr. Donald Trump will take care of that. Did you hear? Your NGOs are finished, your money is over. You will have to get a job,” she said. Gesturing to the cell where the five defendants were awaiting the start of the hearing, she continued, “Those men over there; they defended the country from people like you, communists, dirty communists.”

When one of the court observers asked her to calm down, she responded, “You have no right to tell me to stop speaking, you are in my country. You didn’t live here in Guatemala, you [expletive] foreigners, you have no right to be in our country.”

After a police officer asked Zaldaña Rojas’ wife to calm down, she turned again to the observers and said, “That’s fine, we can settle this outside whenever you want. You are in my country, and you will respect our people.”

The police officer again asked her to calm down, saying otherwise that he would have to remove her from the courtroom. She deferred to the police officer, but then turned and continued, “They thought they were going to find a bunch of weaklings, but here there are only people with honor. We are women, mothers, daughters, and wives…I will wait outside, foreigner [expletive], we are in Guatemala, and now you are going to know who we Guatemalans are.”

It should be noted that the Facebook Fan Page “Military Daughters” (Hijas Militares) regularly posts attacks and insults against the Molina Theissen family and other transitional justice cases.

To lessen tensions, the police officers relocated the press to the middle of the room, effectively separating the family members of the defendants from the other observers in the courtroom.

Zaldaña Rojas addresses the court

Before Judge Herrera Ríos announced his ruling, the lawyer for Hugo Ramiro Zaldaña Rojas said that his client would like to address the court. The judge stated that this was not normal procedure but that he would allow it as long as the public prosecutor and the civil parties had no objection. They did not, although Erick de León of the Attorney General’s Office did call upon the defendant to speak respectfully, particularly when making reference to the Molina Theissen family.

Zaldaña Rojas was allowed to leave the holding cell where he and the other defendants sit during the proceedings and sat in the middle of the courtroom. He spoke for about 10 minutes in a rambling statement that reiterated comments he made earlier in the proceedings. He started with a sardonic salute to the “fourth power, the press.”

He asserted that the trial was “an act of political and economic revenge.” He claimed the Molina Theissen family’s main motive in bringing charges was economic, referring to the reparations paid to the family as a result of the Inter-American Court for Human Rights ruling of 2004. He also asserted that the trial was “an act of revenge by the communist, socialist, and subversive left” and that it was an outrage that he was being accused of sexual violation when he had daughters and was innocent.

New evidence not admitted

Following this, the court presented copies to all the parties in the case of a document that the Attorney General’s Office sought to incorporate into the proceedings. This resulted in a series of protests by the defense lawyers, who asserted that the procedural phase for introducing new evidence had passed and objected to the document being incorporated as evidence at this stage in the proceedings.

Public prosecutor Erick de León asserted that new evidence, when pertinent to the case, can be presented at any time. However, after several of the defense lawyers filed motions of defective procedural activity, the judge decided to not accept the document as evidence.

The judge’s ruling

At this point, Judge Herrera Ríos began to present his ruling. Based on the evidence presented by the Attorney General’s Office, as well as consideration of the Constitution of Guatemala and international treaties and conventions, he formally charged Luis Francisco Gordillo Martínez and Edilberto Letona Linares with crimes against humanity and aggravated sexual violation against Emma Molina Theissen. He charged Manuel Benedicto Lucas García, Manuel Antonio Callejas y Callejas, and Hugo Ramiro Zaldaña Rojas with crimes against the humanity, aggravated sexual violation against Emma Molina Theissen, and with the enforced disappearance of Marco Antonio Molina Theissen. (For a detailed discussion of the charges presented by the Attorney General’s Office, see the International Justice Monitor report, Prosecutor Lays Out Case Against Former Military Officials in Sexual Violence, Torture, and Enforced Disappearance Case.)

The judge stated that he based his ruling on the testimonial evidence that established the occurrence of the events in question, on the expert reports that analyze the conduct of the military in accordance with the Doctrine of National Security, and military documents that establish the positions held by each of the defendants at the time of the events.

Judge Herrera Ríos also clarified that the officials of the military high command have command responsibility over their subordinates and had knowledge of the sequence of events of the organized power apparatus through which the crimes were committed. As such, he said, there is sufficient evidence to believe that they may have indirect responsibility for actions that they did not take that could have prevented these crimes from occurring.

He concluded that there was sufficient evidence to suggest that each of the five defendants had knowledge of the events in question and allowed the crimes committed against Emma Molina Theissen from the moment of her capture to the moment of her escape from Military Zone No. 17, including allowing her to be psychologically and physically tortured during her interrogation sessions, as well as allowing her to be sexually violated during and outside of these interrogation sessions. They therefore omitted to fulfill their role as guarantors of the law.

The judge stated that the enforced disappearance of Marco Antonio was the result of a clandestine intelligence operation that had as its primary objective the recapture of Emma Molina Theissen. There is sufficient evidence, he said, to merit a criminal trial against three of the accused who were connected to the intelligence apparatus — Zaldaña Rojas, who was commander of Military Zone No. 17 at the time of the events; Callejas y Callejas, head of military intelligence at the time; and Lucas García, head of the army high command.

Judge Herrera Ríos set March 14, 2017 as the tentative date for the presentation of evidence but noted that Judge Pablo Xitumul de Paz of High Risk Court “C,” who will preside over the trial court, had to confirm the date. Judge Xitumul was one of the three trial court judges who found José Efraín Ríos Montt guilty of genocide and crimes against humanity in 2013. (The proceedings were partially annulled by the Constitutional Court, effectively vacating the sentence; the retrial has been delayed on several occasions.) The other members of the High Risk Court “C” are Judge Eva Marina Recinos Vásquez and Judge Elvis David Hernández Domínguez.

After the hearing, Emma Theissen Alvarez, the mother of Emma and Marco Antonio, along with her daughters Ana Lucrecia and María Eugenia Molina Theissen, expressed their satisfaction with the judge’s decision.

“This is a struggle against injustice and against lies,” said Ana Lucrecia. “It is a struggle so that things in Guatemala change. The judge’s resolution sends a very powerful message to the de facto powers of Guatemala that they are not above the law…This is a step forward for the consolidation of an independent judicial system…and for the consolidation of a system of civilian control over the military in Guatemala.”

Jo-Marie Burt is an Associate Professor of Political Science and 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.