Trial / Guatemala Trials

by Jo-Marie Burt and Paulo Estrada

Judge Denies CREOMPAZ Defendants’ Request for Prison Release

On Monday, May 11, Judge Claudette Domínguez of High Risk Court “A” rejected a petition filed by two defendants in the CREOMPAZ mass disappearance case requesting their release from preventive detention. The defendants had claimed they have high risk of infection due to the COVID-19 pandemic, and, therefore, the court should move them to house arrest.

Authorities arrested the defendants, César Augusto Cabrera Mejía, 72, and José Antonio Vásquez García, 71, on January 6, 2016, along with 12 other senior military officials, for the crimes of forced disappearance and crimes against humanity.

Cabrera Mejía and Vásquez García are detained at the Guatemalan Military Hospital. The judge noted that authorities affirmed that both defendants are in good health and receive adequate medical treatment. She further said that the Military Hospital does not suffer from an overcrowding problem, as do other prisons in Guatemala, and no cases of COVID-19 have been reported there.

Between 2011 and 2012, investigators exhumed 565 human remains from Military Zone No. 21, a former military base in Cobán, Alta Verapaz. Forensic anthropologists have identified at least 145 remains as victims of the internal armed conflict. In June 2016, Judge Domínguez determined that there was sufficient evidence to prosecute eight of the accused, including Cabrera Mejía and Vásquez García.

Cabrera Mejía is a former intelligence official. He was one of the key figures connected to the administration of Jimmy Morales (2016-2020) and was slated to be named Minister of Governance before his January 2016 arrest. In April 2018, authorities found Cabrera Mejía’s security firm liable for tax fraud; a few weeks later, President Morales lifted the multi-million dollar fine.

This was the first hearing in the CREOMPAZ case in several months. The case has not moved to trial because of several pending appeals that have not been resolved to date. Monday’s hearing was not open to the public, but the court allowed journalists to observe the proceeding. To limit the amount of people in the courtroom, the judge ordered that each of the parties could be represented by only one lawyer. The plaintiffs expressed some concern that the judge called a hearing in the midst of the COVID-19 pandemic, particularly given the recent spike in reported cases in Guatemala.

Arguments

Cabrera Mejía’s defense lawyer called Dr. Edwin Marino Salazar Díaz, a physician and surgeon specialized in obstetrics, to testify on Cabrera Mejía’s health. Dr. Salazar Díaz told the court that he was the defendant’s general physician. He said that Cabrera Mejía was experiencing a series of illnesses, including hypertension. The most serious issue, he noted, was the stress the defendant is experiencing resulting from the criminal charges he faces. He stated that given the risk of infection for COVID-19, the court should grant Cabrera Mejía house arrest on humanitarian grounds. He affirmed that one person at the Military Hospital had tested positive for COVID-19 but offered no evidence of this. He concluded saying that Cabrera Mejía would receive better care at home.

Like many of the senior military officials in preventive detention or convicted of crimes against humanity, Cabrera Mejía is being held at the Guatemalan Military Hospital. Dr. Salazar Díaz claimed that in the context of the current pandemic, the Military Hospital was under the same stresses as the public hospital system in Guatemala, putting his patient’s health at risk.

In response to questions by the plaintiffs, Dr. Salazar Díaz admitted to having examined Cabrera Mejía only three or four times, the most recent being in October of 2019. He also said that medical specialists at the Military Hospital are providing adequate care for the defendant.

The plaintiffs questioned the fact that no one had informed them that the defense was presenting expert testimony and said that the court had not formally accepted Dr. Salazar Díaz as an expert in these proceedings. The judge accepted these complaints.

Cabrera Mejía’s lawyer also argued that the reasons behind the decision to hold Cabrera Mejía in preventive detention—to prevent him from attempting to obstruct justice—had changed. Alejandro Ortiz, representing Vásquez García, noted that his client suffered a series of illnesses and similarly called for the court to grant his client house arrest.

The Ruling

Judge Domínguez began by noting that a few days before the hearing, she asked the National Institute of Forensic Sciences (INACIF) to examine defendants who were requesting that their preventive detention be substituted by house arrest. She said that INACIF reported that the health of both defendants was stable, contrary to Dr. Salazar Díaz’s affirmations.

Judge Domínguez said that she had also asked the Military Hospital to inform her about their capacity to provide adequate healthcare to the defendants. The director affirmed that the Military Hospital has specialists and physicians, as well as medical equipment, to properly care for the defendants. He also noted that Cabrera Mejía receives periodic health exams.

Finally, Judge Domínguez asked the Ministry of Defense to inform her if there were any active cases of COVID-19 in the Military Hospital. The ministry responded that there were not and noted that a special area had been set up to respond if cases arose in the future.

The judge refuted Dr. Salazar Díaz’s claim to be Cabrera Mejía’s general physician because he was unaware of the current health status of the defendant. She also noted that he had exceeded his authority by making a recommendation about substitution measures.

Judge Domínguez concluded that both defendants enjoy the right to health and that the COVID-19 crisis does not constitute cause for modifying the preventive detention measures. She noted further that the Military Hospital does not suffer the problem of overcrowding that common prisons in Guatemala do, so those held there do not face a high risk of infection. She proceeded to dismiss the petition.

More Petitions for House Arrest Pending

As International Justice Monitor noted last month, several military officials who have been convicted of crimes against humanity or who are in prevention detention awaiting hearings have sought to take advantage of the COVID-19 pandemic to obtain their release from prison. In April, a private lawyer filed a petition to that effect on behalf of Lucas García and three other officials convicted in 2108 of crimes against humanity, aggravated sexual assault, and forced disappearance in the Molina Theissen case.

Other officials accused in the CREOMPAZ case, Byron Humberto Barrientos Díaz, 68 (Intelligence Officer S2), César Augusto Ruíz Morales, 68 (Second Commander), and Carlos Augusto Garavito Moran, 74 (Operations Officer S3), have requested a review of their prevention detention order. Their hearing is currently scheduled for May 18.

Judge Domínguez has been the subject of intense criticism from human rights lawyers and victims associations. While she ruled to send the CREOMPAZ case to trial in June 2016, her ruling has been contested by the plaintiffs, resulting in a series of appeals that remain unresolved, leaving the case in legal limbo.

Last year, an appellate court granted a recusal motion against Judge Domínguez from the Maya Achí sexual violence case after she ordered the release of six former civil defense patrol members, who women survivors had identified as responsible for a series of atrocities. She was also recused from the Maya Ixil genocide case during the Romeo Lucas García government (1978-1982), in which the former head of the army, Benedicto Lucas García, and two other senior officials face charges. She is currently the pretrial judge in the most recent Dos Erres trial, involving a former Kaibil official, Gilberto Jordan, who was deported to Guatemala from the United States in March. The first declaration hearing in Jordan’s case took place on May 12.

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). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.