On Friday, June 21, a Guatemalan judge ruled that there was insufficient evidence to send six men to trial for crimes against humanity for wartime sexual violence against 36 Maya Achí women in Rabinal between 1981 and 1985.

Judge Claudette Domínguez of High Risk Court “A” dismissed the charges against three of the accused and ordered their release. She conditionally dismissed the charges against three others and told the Attorney General’s Office it could present further evidence on August 5, at which point she will determine whether the case against them will proceed or whether charges will be dismissed.

Judge Domínguez dismissed the central evidence in the case based on a technicality. This evidence consisted of the testimonies of the women survivors themselves, who identify the defendants as the material authors of the crimes they suffered.

She stated the document in which the victims’ lawyers request permission to interview the women in the offices of the Popular Law Firm of Rabinal rather than the Attorney General’s Office in Rabinal was dated after the women gave their testimonies. Judge Domínguez also admonished the Attorney General’s Office for not taking the women’s testimonies in their offices, even though it is common practice for prosecutors to take testimony in any place they deem appropriate. Haydeé Valey, one of the victims’ lawyers, noted that the women were fearful of reprisals if they were seen going to into the Attorney General’s Office in Rabinal and noted that such practices are critical to the Attorney General’s Office’s mandate to protect witnesses from reprisals and revictimization.

Using this formalistic argument, the judge dismissed most of the survivor testimonies.

In their testimonies, the women identify the six defendants as members of the civil defense patrols (PACs) that were organized by the Guatemalan Army to terrorize the population and as the material authors of the crimes they suffered. The women described being raped, and in some cases gang-raped, in their homes and in military installations by the defendants, as well as others, including soldiers. Three of the women were pregnant and suffered miscarriages as a result of being violently raped. At least one woman was impregnated and had a child as a result of the rapes. Some were as young as 12 years old when the violent acts occurred.

The decision to dismiss the charges is a major setback for justice in Guatemala, and it is counter to national and international jurisprudence, which establishes that victims’ testimonies should be granted probatory value in cases of grave human rights violations.

The judge also determined that the plaintiffs did not prove that the defendants were PAC members at the time of the alleged crimes.

The court did not provide interpretation of the hearing for the Maya Achí women, who learned of the outcome only after they were able to consult with their lawyers in their native language outside the courtroom building late Friday afternoon.

Gloria Elvira Reyes, a Maya Achí lawyer from the Popular Law Firm of Rabinal, and Haydeé Valey of Impunity Watch, represent the survivors in this case. They told International Justice (IJ) Monitor that they would be appealing the judge’s decision.

A Curious Ruling

Judge Domínguez began her presentation explaining that her role as the judge presiding over the evidentiary phase of the proceedings was to evaluate whether the evidence presented by the plaintiffs was sufficient to send the defendants to trial, noting sharply that she “could not correct the deficiencies of the Attorney General’s Office’s investigation,” and that her job as a judge was to issue a resolution totally in line with the letter of the law.”

The judge proceeded to outline the accusation presented by the Attorney General’s Office against each of the six defendants (see Preliminary hearings commence in the Maya Achí Sexual Violence Case), as well as the evidence presented, including the prerecorded testimonies of the women survivors, the testimonies of protected witnesses, photographs, and official military documents, among others.

The judge then questioned the documents presented by the plaintiffs to demonstrate that the accused were members of the PACs. The judge stated that the signatures of the accused did not coincide with the time and place that the crimes of which they were accused took place. She did not consider the fact that the Guatemalan Army has systematically denied access to official documents that might provide key information into cases such as this one. Nor did she make any reference to the fact that the PACs acted as an irregular, paramilitary force and that such official documentation may simply not exist. (For more on the role of the PACs, see Court to Determine if Maya Achí Sexual Violence Case Goes to Trial.)

Next, the judge noted that some of the victims had received reparations, an argument emphasized by the defense in the previous hearing. However, the judge did not explain the relevance this had to the case.

Judge Domínguez then used formalistic arguments to dismiss key evidence in the case: the testimonies of the women survivors. She noted that she could not admit as evidence the document presented by the plaintiffs requesting that the government prosecutors take the women’s testimonies at a location that was not the Attorney General’s Office because it was dated after the women gave their testimonies. With this argument, the judge dismissed not only that document but also the majority of the victims’ testimonies.

The judge stated that the evidence demonstrated that three of the defendants, Felix Tum Ramírez, Pedro Sánches Cortez, and Simeon Enriquez Gomez, were members of the civil defense patrol, but that the time period in which the documents presented show this are from a different time period that when the alleged crimes were committed. She noted that the documents show that Tum Ramírez was a soldier based at Military Zone No. 3 in Chimaltenango between 1984 and 1987. Sánchez Cortez is listed as a member of the Salamá PACs in 1989, while Enriquez Gomez appears listed as a PAC member in 2003. With this, the judge dismissed the charges against them.

Regarding the other three defendants, Benbenuto Ruiz Aquino, Bernardo Ruiz Aquino, and Damian Cuxum Alvarado, Judge Domínguez stated that the plaintiffs did not demonstrate that they were PAC members and ordered the provisional dismissal of the charges against them. She granted the Attorney General’s Office one month to present any additional evidence to the contrary.

The judge then decreed the provisional freedom of the six accused but ruled that they could not have any contact with the victims and that they could not return to live in the municipality and department in which the victims reside. She stated that once their lawyers provide documentation demonstrating that they are able to fulfill this requirement they could be freed. The judge then stated that the six men had a right to demand reparations.

This ruling raised the eyebrows of the many observers in the courtroom, including representatives of the U.S. Department of State, UN Women, and members of the diplomatic corps. In informal conversations with IJ Monitor, they expressed concern that the judge casually dismissed the powerful testimonies of indigenous women, who had suffered in silence for decades and who had finally decided speak out and seek justice. They also expressed their surprise that the judge seemed to acknowledge that the defendants were responsible for the crimes by ordering them to have no contact with the victims and to change their residences from Baja Verapaz.

Reactions

In a press release issued on Monday, the Popular Law Firm of Rabinal expressed its unhappiness with the judge’s decision and said they would appeal.

A translated portion of the press release says:

Judge Domínguez’s ruling represents a clear violation of the rights of the victims of sexual violence because she did not give any probatory value to the testimonies of the women, who bravely told about the horrifying crimes that they experienced in the 1980s, and in which they identified each of the accused. With this resolution, [the judge] has put their lives at risk and is discouraging all victims of sexual violence from testifying and from seeking justice.

The statement also notes that Judge Domínguez has issued other rulings that have favored former military officials, revealing her “bias and affinity with the military,” and calls upon judicial authorities to remove her from this and other transitional justice cases.

IJ Monitor has documented other cases in which Judge Domínguez’s rulings have come under criticism. In the CREOMPAZ case, several of the judge’s decisions have resulted in appeals that have stalled the case since June 2016.

Judge Domínguez has also been criticized for lifting the travel ban on Edgar Justino Ovalle, a former member of the Guatemalan Congress who was impeached in relation to the CREOMPAZ case in 2017. This allowed Ovalle to go into hiding before the impeachment proceedings culminated. He remains a fugitive.

Guatemalan civil society organizations have also critiziced Judge Domínguez for decisions that they say unduly favored former military officials in a series of other cases involving murder and corruption.

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.