Tuesday, April 08, 2014

Guatemala: Guatemalan Judge Faces Retaliation over Role in Genocide Trial

Source: Open Society Foundations
Guatemalan Judge Faces Retaliation over Role in Genocide Trial
April 7, 2014 by Emi MacLean

Judge Yassmin Barrios has served for 18 years as judge in Guatemala, and has presided over some of the country’s most high profile cases. A year ago, she led the panel of three judges that tried the country’s former military dictator, Efrain Rios Montt, on charges of genocide and crimes against humanity. The court found him guilty, but its verdict was overturned by a questionable and divided intervention from Guatemala’s Constitutional Court.

A year on from that ruling, Rios Montt’s allies are striking back against Judge Barrios. It emerged on Friday that the ethics tribunal of Guatemala’s bar association (known by its Spanish acronym CANG) had suspended Judge Barrios from practicing law for one year, following a complaint from a member of the legal team of Rios Montt’s co-accused regarding her conduct of the case.

The bar association also ordered a public reprimand of Judge Barrios to be published in the media, and imposed a fine, while referring the complaint to the Public Ministry for an investigation into whether she abused her authority or committed any constitutional violations.

Iván Velásquez, the Commissioner of the UN-backed International Commission Against Impunity in Guatemala (CICIG) responded by noting that the idea of a lawyers’ association sanctioning a judge posed a threat to “judicial independence”.

In an interview with local media, Judge Barrios described the move against her as an “unjust and illegal” decision which was outside of the jurisdiction of the bar association: “This places at risk judicial independence and the rule of law. [This means] that anybody can, without grounds, accuse a judge in order to avoid being prosecuted. This opens the door to impunity and corruption…Judicial independence is a guarantee—even more than for the judge, for Guatemalans to be able to depend on honorable and dignified judges.”

The significance of this decision is heightened as it comes in the midst of contentious nominating processes for Guatemala’s next attorney general and all of the country’s supreme and appellate court judges. The bar association plays a central role in the nomination process of all of these crucial judicial actors. The president of the bar association and of its ethics tribunal both serve on the nominating commission for the attorney general, and the bar association names 1/3 of the representatives for the nominating commissions tasked with shortlisting supreme and appellate court judges. The commission is due to forward a shortlist of six candidates for attorney general to the president for his final selection by the end of this month.

Both the Prensa Libre and La Hora newspapers issued editorials criticizing the resolution. Prensa Libre described the action as “excessive” and “without precedent,” with a risk of undermining “confidence in the legal system.” La Hora went further to suggest that this resolution is a sign of the “enormous influence of groups operating clandestinely” to undermine the rule of law.

Other critical voices included Alejandro Balsells, former president of the Center for the Defense of the Constitution (CEDECÓN), who described the action of the bar association as reminiscent of Franco-era actions in fascist Spain that provoked constitutional reforms. “This is a political and not a legal act,” he asserted. Legal Scholar Anabella Morfin described it as a “clear interference” of the independence of the judiciary. Ramón Cadena, Regional Director of the International Commission of Jurists (ICJ), criticized the bar association for acting outside of its mandate, and linked the action to other “mechanisms of impunity.”

The bar association’s action followed a complaint from Moises Galindo, one of the defense lawyers for Mauricio Rodriguez Sanchez, director of intelligence under Ríos Montt and his co-accused in the genocide trial. Galindo argued that Judge Barrios, identified as a lawyer in his complaint, “humiliated [him] publicly with the very disrespectful manner in which she acted towards him” when she ordered him to temporarily represent Ríos Montt after the three-judge tribunal evicted Francisco García Gudiel from the courtroom. García Gudiel had appeared for the first time as Ríos Montt’s defense counsel on the opening day of the trial, and proceeded to argue repeatedly for a delayed start to the trial and for the disqualification of the presiding judges.

In her defense, Judge Barrios defended the action of the tribunal, rejected any assertion of disrespect, and recognized that a complaint had already been rejected by the judicial disciplinary authority (la Junta de Disciplinaria del Organismo Judicial) in April 2013.

The bar association decision is dated January 9, but was just officially released on Friday. Its resolution characterized Judge Barrios as having abused her power, “causing ridicule and human degradation” of the defense counsel.

Judge Barrios may appeal to the Assembly of Presidents of Professional Schools (Asamblea de los Presidentes de los Colegios de Profesionales), within three days of the notification of the decision, or file a constitutional challenge (amparo) before the court.

Last month, Judge Barrios was honored by the U.S. State Department with a Women of Courage award, presented by First Lady Michelle Obama. The award paid tribute to her distinguished career as a judge prepared to handle "difficult and politically sensitive cases", and highlighted her role in the Rios Montt trial. A few commentators critical of Judge Barrios, including García Gudiel, made specific note of this recognition, with Garcia Gudiel, in bombastic fashion, repeating that he will not rest until she and the other judges in the Rios Montt trial are in prison.

Both José Arturo Sierra, President of the Supreme Court, and Judge Héctor Manfredo Maldonado, President of the Supreme Court’s Criminal Chamber, stated that the judiciary would need to convene to determine how to respond. They recognized this as unprecedented.

Besides the Rios Montt genocide trial, Judge Barrios presided over the cases of the assassination of archbishop Monsignor Juan Gerardi and the anthropologist Myrna Mack, the massacres of Dos Erres and Plan de Sánchez, and the death of Rodrigo Rosenberg, among others.