AMICUS CURIAE:

"Case for Genocide Committed Against the Maya Ixil Ethnic Group"

Presented to:

THE CONSTITUTIONAL COURT OF GUATEMALA

Case: Appeal of Sentence of Amparo No. 2234-2016. Oficial 7o. de Secretaria General.

ORIGIN: First Chamber of the Court of Appeals for Penal, Narcoactivity and Crimes against the Environment, constituted in Tribunal of Amparo.

Case: Accumulated Amparos No. 1017-2015-78 y 1017-2015-79.

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Brief of Amicus Curiae American Bar Association

PAULETTE BROWN PRESIDENT AMERICAN BAR ASSOCIATION 321 North Clark Street Chicago, Illinois 60654 (312) 988-5000abapresident@americanbar.org

*The original brief was submitted in Spanish.

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1. Introduction The American Bar Association (ABA) does hereby sustain that in the case captioned above, now pending before the Constitutional Court, the requirements warranting a restriction on the publicity principle in respect of the prosecution pursued against the accused José Mauricio Rodríguez Sánchez have not been duly met.

Said stance derives from the analysis of the international standards currently applicable to any matters concerned with the publicity of criminal proceedings, as well as the right to truth and justiceto which both the victims and society are entitled under the International Law.

In this respect, we will evidence in this brief that the publicity of criminal proceedings in the case of gross violations of human rights in accordance with domestic law and the standards of the international community constitutes a mechanism to guarantee the victims’ effective access to justice, as well as to ensure that the society as a whole should exert control over the performance of actions taken by judicial authorities. This is especially important in a case of such a great public interest as this one under consideration.

Likewise, we will sustain that the notion of victim in this case brought against José Efraín Ríos Montt and José Mauricio Rodríguez Sánchez, must be interpreted in a broad sense, given the scope of violence perpetrated during the domestic armed conflict. Thus, we should ponder the rights to justice, truth, and redress of a significant part of Guatemalan society, which may feel satisfied if the public access to the proceeding is thus ensured. In turn, the public disclosure of judicial truth may have a positive effect on the strengthening of the rule of law and democracy and prevent the repetition of futures violations.

Considering the foregoing, in the following sections we will first analyze the status of the current procedural steps taken in this case, as well as the relevance thereof both at a national and regional level. We will then start expounding on the purpose of this brief and the interest of its signing parties. Then, we will assess the standards existing in the International Law related to the principle of publicity of criminal proceedings, in order to later examine the relevance thereof in the light of the victims’ and the society’s rights to truth, justice, redress, and the access to information. Thereupon, we will make reference to some decisions rendered by high courts of countries of the Americas, in respect of the publicity principle and victims’ rights. Finally, we will apply the aforementioned standards to the case at hand and will expound our own conclusions.

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2. Procedural Steps Taken and Relevance of the “Case on the Grounds of Genocide Committed against the Ethnic Mayan Group Ixil”

a. Procedural Steps Relevant to This Brief

The trial against the former dictator, José Efraín Ríos Montt and his intelligence chief, José Mauricio Rodríguez Sánchez, began on March 19, 2013, before the “A” High Risk Court, presided over by Judge Yassmin Barrios. Such trial ended on May 10, 2013, with a sentence against Ríos Montt and an acquittal in respect of Rodríguez Sánchez. The former was found guilty of genocide and crimes against humankind and thus sentenced to 80 years of imprisonment. However, ten days later, the majority of the Justices of the Court of Constitutionality, decided to overturn “[...] all of the proceedings conducted during the stage of oral and public trial within the criminal proceedings [...] as from April 19, 2013.” This decision caused a shock and was challenged both at national and international levels.1

In order to fulfill this resolution, a new trial was scheduled to begin by January 2015, but it was suspended when the defense attorneys recused Judge Janeth Valdez, who presided over the “B” High Risk Court in charge of trying the accused.2 Ríos Montt’s defense attorneys also alleged said court’s lack of jurisdiction over the case. Given such procedural delays several UN experts sent a notice to the Guatemalan government thereby requesting the judicial authority to prevent any further delays in the trial against Ríos Montt.3

1 UN Committee against Torture. Final Remarks on the combined fifth and sixth periodic reports of Guatemala, as adopted by the Committee in its 50th session (May 6 through 31, 2015), par. 10; “Guatemala: Pillay remembers that there must be no amnesty in cases of genocide”, October 25 2013, available at http://www.un.org/spanish/News/story.asp?NewsID=27842#.VxTRxHCbSsY; Press release of the Initiative of Women Nobel Prize of June 5, 2013, available at http://nobelwomensinitiative.org/2013/06/laureadas-con-el-nobel-de-la-paz-hacen-un- llamamiento-para-poner-fin-a-la-impunidad-por-los-atroces-crimenes-en-guatemala-y-a-respetar- los-derechos-de-sobreviventes/?ref=204; International Crisis Group, “Justice on Probation in Guatemala: the Rios Montt case,” September 23, 2013, p. 13; Amnesty International called the decision a “devastating blow to the victims of gross violations of human rights committed during the domestic conflict,” see declarations in http://www.rtve.es/noticias/20130521/constitucional- guatemala-anula-condena-80-anos-genocidio-exdictador-rios-montt/667880.shtml; Defenders of Human Rights think ‘illegal’ the overturning of the sentence against Rios Montt”, EFE News Agency, May 22, 2013.

2 Even though private complainants filed an action for constitutional protection requesting Judge Janeth Valez to be reinstated, said request is pending resolution.

3 In August 2015, the Special Advisor of the United Nations for the prevention of Genocide, Adama Dieng, and the Special Rapporteur for Transitional Justice, Pablo de Greiff, issued a communiqué, whereby they requested Guatemalan authorities to prevent any further delays in the trial against Rios Montt. Such communiqué was also signed by the chairman of the Working Group on Forced or Involuntary Disappearances, Ariel Dulitzky; the special rapporteur on Extrajudicial, Summary or Arbitrary Executions, Christof Heyns; the special rapporteur on Torture and other Cruel Treatments or Punishments, Juan E.

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Once the relevant medical expert assessments had been conducted, the Sentencing Court issued a Resolution dated August 18, 2015, whereby it declared that the accused Jose Efrain Ríos Montt suffered from chronic dementia to the point of amounting to an incapacitating condition. Therefore, the Court Division found that the proceedings should continue under the special regime provided for in the Code of Criminal Procedure of Guatemala, in articles 484, 485 and 486. Both the Prosecution and private complainants requested the separation of the trial pursued against Ríos Montt from that instituted against the co-defendant José Mauricio Rodríguez Sánchez, thereby requesting the latter to be tried first and then such court records be later committed to the Division conducting the trial against Ríos Montt. Said request was dismissed. In this respect, the Court Division ordered that “the trial against the accused José Efraín Ríos Montt and Jose Mauricio Rodríguez Sánchez be conducted on a joint and in-camera basis with the presence of the victims and without the intervention of any mass media.”4

On said resolution being served upon the parties on August 25, 2015, the Center for Legal Action in Human Rights (“CALDH”, as per its official acronym in Spanish) and the Association of Justice and Reconciliation (“AJR”, as per its official acronym in Spanish), organizations representing the victims and adherent complainants in the criminal proceedings, filed an appeal for reversal against the decision of the Court Division to conduct both proceedings on a joint basis. Said appeal was dismissed.

On September 23 and 24, 2015, the CALDH and the AJR filed their appeals for constitutional protection before the First Division of the Court of Appeals in Criminal Matters, Drug-Trafficking and Environmental Violations of Guatemala. Said Court Division decided to join both appeals and rendered a decision on September 30, 2015, thereby admitting both of them and declaring a provisory constitutional protection which suspended the resolutions adopted by virtue of the decision dated August 18, 2015.

The resolution of such provisory constitutional protection was appealed by the accused Rodríguez Sánchez before the Court of Constitutionality, which overturned the September 30 provisory constitutional protection on December 3, 2015.

Faced with such a decision, the CALDH filed a “motion to quash” the proceedings pursuant to the provisions set forth in section 68 of the Law of Action for Constitutional Protection, Exhibition, and Constitutionality. Said motion was dismissed by the Court of Constitutionality by virtue of its resolution dated December 16, 2015.

Despite the controversy still existing in relation to the procedural issues pending

Mendez; and the Special Rapporteur on the Independence of Judges and Attorneys Monica Pinto. Link available at http://www.un.org/spanish/News/story.asp?NewsID=33145#.VxTHmHCbSsY

4 Resolution dated August 18, 2015, by the First Court of Penal Sentencing, Drug-Trafficking, and Environmental Violations, of the Department of Guatemala, High Risk, “B” Group.

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resolution, the trial began with its first hearing for oral argument held on March 16, 2016. At such hearing, Judge Castellanos, who substituted Judge Valdez as the president of the Court, asked the press, observers, and the public to leave the courtroom. The victims accredited in the proceedings and international observers accompanying them could stay at the hearing during the first days. AJR and CALDH appealed this decision. On April 28, 2016, the First Division of the Court of Appeals in Criminal Matters, Drug-Trafficking and Environmental Violations of Guatemala, provisionally granted AJR’s and CALDH’s motion to reverse the trial court’s decision and separate the trials. That provisional decision was confirmed by the same court on May 3, 2016. On May 6, 2016, the appeals court issued its final decision reaching the same conclusion to grant AJR’s and CALDH’s motion. The court based its reasoning mainly on the fact that article 485.4 of the Code of Criminal Procedure provides that “special proceedings” applicable to an accused person “shall be conducted separately from any other”. Thus, the court considered that the order issued by the trial court to have the proceedings against Ríos Montt and Rodríguez Sánchez conducted on a join and in-camera basis, lacked any legality.Rodríguez Sánchez has appealed the May 6 decision to the Constitutional Court which will decide whether the criminal prosecutions against Rios Montt and Rodriguez Sanchez are to be conducted on a separate or joint basis, with this latter possibility having serious implications for the publicity of the criminal proceedings.

b. Regional and International Relevance of the Criminal Proceedings

Against Ríos Montt and Rodriguez Sanchez

The trial against Ríos Montt and Rodríguez Sánchez actually constitutes a legal and symbolic judicial precedent of huge relevance in the fight against impunity for international crimes committed by governmental agents during the domestic armed conflict in Guatemala.

The violence perpetrated during the conflict was of massive proportions. According to the Commission for Historical Clarification, over 200,000 people died or were forcibly disappeared. Four out of every five individuals killed during the conflict were indigenous. The Commission also found that the governmental agents and paramilitary groups were responsible for 93% of the violations perpetrated.

Nonetheless, less than a score of sentences has thus far been handed down against governmental agents for the commission of said international crimes, most of which were rendered against low-ranking governmental agents.5

The fight against existing impunity is not only relevant to satisfy victims’ rights, but also

5 “Impunity still the rule for grave Crimes Committed during Guatemala’s Civil War”, International Justice Monitor, November 10, 2015, available at http://www.ijmonitor.org/2015/11/impunity-still-the-rule-for-grave-crimes-committed-during- guatemalas-civil-war/

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to prevent their corrosive effect on the present rule of law. In this respect, the impacts of violence, corruption, and impunity actually reflect the challenges that the present Guatemalan society faces.

Within this context, the trial pursued in 2013 against Ríos Montt and Rodríguez Sánchez constituted an historic landmark, as it was the first case where a former president was sentenced for genocide in Guatemala. Said sentence was founded on the testimony of more than 100 witnesses and expert witnesses. In spite of the difficulty to testify at a public trial about egregious violations, such criminal proceedings were also redressive, since it was the first time that the victims could tell the Guatemalan society about the violations they had suffered.6

This sentence was later overturned by the Court of Constitutionality requiring the proceedings to be repeated and the victims to testify again.

This trial is also of great relevance both for regional and international observers who have been closely monitoring the measures adopted by the States to investigate and punish the parties most responsible for gross international crimes, as some other countries in the region have done.

Based on the reasons set out above, it is of utmost importance that Guatemalan judicial authorities should abide throughout this case by all of the due process rules, including those concerned with the assistance to the accused, but they should also fully guarantee the victims’ rights to effectively access judicial remedies, as well as the victims’ and society’s right to know the truth and have access to the relevant information. Particularly in a case of this significance and high visibility, judicial authorities must subject their decisions and actions to legality and the principles of fairness and independence.

3. Purpose of this Amicus Curiae Brief and Interest of the ABA

a. Purpose

This amicus curiae brief is intended to provide some arguments of law to the Court of Constitutionality for the decision it must take in respect of the separation of the criminal prosecutions pursued against the accused Ríos Montt and Rodríguez Sánchez, and in particular in respect of the principle of publicity of criminal proceedings. For such purpose, this brief highlights the standards derived from the international public law fostering the publicity of criminal proceedings for gross violations of human rights as a measure to guarantee the victims’ rights to access to judicial remedies in an effective fashion, as well as to guarantee the victims’ and the whole society’s right to the truth and access to information.

6 International Crisis Group, “Justice on Probation in Guatemala: the Ríos Montt case,” September 23 2013, p. 3.

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b. Interest of Amicus The ABA is one of the largest professional membership organizations in the world. Its more than 400,000 members include lawyers in private practice, legislators, prosecutors, government lawyers, judges, law professors, and other legal professionals.7 The present case raises important concerns relating to the rule of law, the integrity of the judicial process, and the independence of the judiciary, all of which have long been concerns of the ABA. In general, the core concerns of the ABA are set forth in a series of “Goals,” to which the ABA subscribes and which it seeks to advancecor. In this case, the relevant Goal is Goal IV, which is entitled “Advance the Rule of Law” and commits the ABA to strive to “[i]ncrease public understanding of and respect for the rule of law [and] the legal process … [w]ork for just laws, including human rights, and a fair legal process … [and] [p]reserve the independence of the legal profession and the judiciary.”8 Goal IV reflects the ABA’s longstanding recognition that a fair legal process, together with advancing just laws and the independence of the judiciary, are essential to the rule of law and the cornerstone of any legal regime that purports to give meaningful recognition to fundamental human rights.

The ABA has worked for decades to advance the rule of law, both in the United States of America and throughout the world. In 1974, for example, the ABA’s House of Delegates adopted policy affirming its “support for the Rule of Law in the international community and its recognition of the need for an independent judiciary.”9 In 1980, the ABA House of Delegates adopted similar policies, again reaffirming its support for the rule of law in the international community and the importance of an independent judiciary.10

More specifically, in February 2006, the ABA adopted as policy the “Statement of the Core

7 In accordance with the custom and practice of the ABA, whereby for reasons of judicial independence and impartiality the judicial members of the ABA do not participate in the amicus brief approval process, neither this brief nor the decision to file it should be interpreted to reflect the views of any judicial member of the ABA. No inference should be drawn that any member of the Judicial Division Council participated in the adoption or endorsement of the positions set forth in this brief. This brief was not circulated to any member of the Judicial Division Council prior to filing.

8 See American Bar Association, Policy and Procedures Handbook, 1 (2012-2013) available at www.americanbar.org/content/dam/aba/administrative/house_of_delegates/2013_2014_greenbook_optimized.a uthcheckdam.pdf (last visited July October 9, 2013).

9 100 ABA Rep. 466 (1975). The resolution and report are available from the ABA. Resolutions, but not their accompanying reports, become the ABA’s policy after approved by vote of the ABA House of Delegates, which is composed of more than 560 representatives from states and territories, state and local bar associations, affiliated organizations, ABA sections, divisions and members, and the Attorney General of the United States, among others. For further information, see http://www.americanbar.org/groups/leadership/house_of_delegates.html.

10 105 ABA Rep. 642 (1980). The resolution adopted as policy and supporting report are available from the ABA.

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Principles of the Legal Profession,”11 namely:

1. An impartial, independent judiciary, without which there is no rule of law.

2. An independent legal profession, without which there is no rule of law or freedom for the people.

3. Access to justice for all people throughout the world, which is only possible with an independent legal profession and an impartial, and independent, judiciary.

Similarly, in August 2007, the ABA adopted as policy its support of international standards of judicial independence, including the U.N. Basic Principles on the Independence of the Judiciary, which provide in relevant part that “the independence of the judiciary shall be guaranteed by the State,” and that “the judiciary shall decide matters before them impartially” and which call for “fair and public hearings by a competent, independent and impartial tribunal.”12

The ABA also recognizes the importance of the rule of law to human rights globally. In August 2014, the ABA adopted policy specifically urging the United States government to take an active role in adopting a global convention for the prevention and punishment of crimes against humanity, such as those alleged in this case. In a report presented to the ABA’s House of Delegates in support of that policy, it was observed that the goal of the policy was to “encourage clarity, consistency and enforce[ment] of established legal principles; promote international dialogue and cooperation; and strengthen human rights globally.”13

Finally, the ABA promulgates a series of Criminal Justice Standards to guide policymakers and practioners in the area of criminal justice. The ABA’s Criminal Justice Standards were first published in 1968, and have been updated and revised regularly for the last forty-eight years. Standard 8-5.2, which is intended to provide a guide to best practices for judges regarding public interest in criminal cases, states that “in any criminal matter, the public presumptively should have access to all judicial proceedings, related documents and exhibits.”14

11 ABA Policy 111 (adopted February 2006), available in English at http://www.americanbar.org/content/dam/aba/directories/policy/2006_my_111.authcheckdam.pdf.

12 ABA Policy 110E (adopted August 2007) available in English at http://www.americanbar.org/content/dam/aba/directories/policy/2007_am_110e.authcheckdam.pdf.

13 ABA Policy 300 (adopted August 2014) available in English at http://www.americanbar.org/content/dam/aba/directories/policy/2014_hod_annual_meeting_300authcheckdam.docx.

14 ABA Criminal Justice Standard 8-5.2, available in English at http://www.americanbar.org/groups/criminal_justice/standards/crimjust_standards_fairtrial_blk.html

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The ABA’s long history and substantial experience in supporting and advocating for the rule of law, judicial independence and human rights, both in the United States and throughout the world, provide the ABA with a unique perspective on the impact that threats to the rule of law, fair legal process and judicial independence can have with respect to the guarantee of access to justice and respect for human rights. It is for that reason that the ABA respectfully submits this brief in this singularly important case.

4. Arguments of Law

a. Importance of the Publicity Principle in Criminal Law and Applicable

Exceptions in the Field of International Law

The American Convention on Human Rights (hereinafter “ACHR”), the European Convention on Human Rights (hereinafter “ECHR”), and the International Covenant of Civil and Political Rights (hereinafter “ICCPR”) do all recognize the right of the accused to the publicity of criminal proceedings as one of the guarantees enshrined in the right to a fair trial.15

As a general rule, the publicity of criminal proceedings is a right of all the accused, intended to protect any persons subject to trial in camera by the administration of justice without any public scrutiny or observation. Thus, the Inter-American Court of Human Rights has established the importance of the principle of publicity of criminal proceedings, by considering violations to Article 8.5 of the ACHR in the trials conducted by “faceless judges” and without public access in Peru during its internal conflict.16

15 Article 8.5 of the ACHR provides that “criminal proceedings shall be public, except as may be necessary to preserve the interests of justice.” On the other hand, Article 6.1 of the ECHR provides as follows: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice” (underlining has been added). Finally, Article 14.1 of the ICCPR provides that: “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

16 Inter-American Court of Human Rights. Case Cantoral Benavides v. Peru. Merits. Judgment dated August 18, 2000. Series C No. 69, pars. 115 and 143-149; Case Castillo Petruzzi et al v. Peru. Merits, Redresses and Costs. Judgment dated May 30, 1999. Series C No. 52, par. 172; Case Lori Berenson Mejia v. Peru. Merits, Redresses and Costs. Judgment dated November 25, 2004. Series C No. 119, par. 198.

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However, the purpose of the publicity principle is not simply to protect the rights of the accused, but also to protect the interests of victims and promote the general interest of society and the rule of law. Thus, it contributes to the maintenance of confidence and legitimacy in the courts.17 Increasing the public understanding of and confidence in the legal process entails not only ensuring a fair legal process but showing the public that the process is fair. It is important to the rule of law that the public see the process as well as the results. In some ways, the appearance of propriety is as important as the existence of propriety itself because that is what inspires confidence in the judiciary, and, consequently, confidence in the rule of law. In this respect, the publicity principle is an indispensable means for the community as a whole to exert control and surveillance over the procedures conducted by public authorities. The public observation of the proceedings may influence on judges and prosecutors in the performance of their duties in an independent and professional manner and may foster more open testimonies on the part of declarants.18 Therefore, it is not a mere procedural formality, but a requirement of efficacy for the judiciary and of legitimacy for the participative democracy.19 In this respect, the European Court of Human Rights (hereinafter “ECtHR”) has pointed out that publicity in the administration of justice contributes to the accomplishment of the goals set forth in Article 6 of the ECHR, i.e. to a fair trial.20 The principle of publicity of criminal proceedings is not an absolute right and may be restricted on account of the nature of the trial in the specific case. Pursuant to the international instruments quoted above, the publicity of proceedings is fulfilled provided that the exceptions set out in articles 6.1 of the ECHR, 14.1 of the ICCPR and 8.5 of the ACHR do not become effective. These exceptions are the following:

1. “for reasons of morals, public order or national security in a democratic society”; 2. “when the interest of the private lives of the parties so requires”; 3. “to the extent strictly necessary in the opinion of the court in special circumstances

where publicity would prejudice the interests of justice.”

The exceptions quoted are almost identical in the texts of the ECHR and the ICCPR, whereas the ACHR only acknowledges the possibility to limit publicity: “in order to

17 European Court of Human Rights. Case of Pretto et al v. Italy. Judgment dated December 8, 1983, par. 21.

18 OSCE, Legal Digest of International Fair Trial Rights, p. 78. Available at www.osce.org/odihr/94214?download=true

19 Court of Constitutionality, Republic of Colombia. C-096 of 2001 and T-260 of 2006.

20 ETHR. Case of Diennet v. France. Judgment dated September 26, 1995, par. 33; Case of Martinie v. France. Judgment dated April 12, 2006, par. 39.

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preserve the interest of justice.”21

Both the ECtHR and the UN Committee of Human Rights have issued important case law discussing the scope of each one of these exceptions.22

To the extent applicable to this brief, it is necessary to observe that the application of the exceptions referred to above somewhat encompasses the total or partial exclusion of the press and the public in general at the hearings. In this respect, neither the ECtHR nor the UN Committee of Human Rights have established any situations in which it may be possible to exclude one of the parties (either the victims or civil claimant) or its representatives.

Any limitation to the publicity of proceedings shall be duly reasoned and founded by the judicial authority, thereby seeing to the principles of necessity and proportionality, and making an assessment of all the interests at stake in the case at hand.23 The ECtHR has also found that the right to public proceedings may be waived by the defendant. Such waiver may be either explicit or implicit but it must always be made in an unequivocal fashion.

Nonetheless, it is important to underline that the ECtHR has admitted that said waiver should not conflict with the general interest.24 In this respect, the defendant’s wishes are not determinant, but they must be assessed on a case-by-case basis jointly with some other considerations that may impair the rights of other people, the society or of the appropriate administration of justice.

However, the exceptions described above only apply to the proceedings before the adoption of a decision. In this respect, the corresponding judgment must always be made public, except when the best interest of minor children so requires.25

21 Article 8.5 of the ACHR.

22 The decisions rendered by the United Nations Committee of Human Rights are directly applicable to Guatemala, since the Committee is the body in charge of the supervision and interpretation of the International Covenant of Civil and Political Rights, as ratified by Guatemala on May 5, 1992. On the other hand, the decisions issued by the Inter-American Court of Human Rights are applicable to Guatemala, on the grounds of its ratification of the American Convention on Human Rights in 1978. Finally, even though the decisions of the European Court are not directly applicable to Guatemala, the tribunal has established an international doctrine on the scope of human rights that is part of the corpus juris of International Law.

23 OSCE, Legal Digest of International Fair Trial Rights, p. 80. Available at www.osce.org/odihr/94214?download=true

24 ETHR. Case Hakansson and Sturesson v. Sweden. Judgment dated February 21, 1990, par. 66; Case Thompson v. United Kingdom. Decision dated February 15, 2004, par. 43.

25 Committee of Human Rights. General Remark No. 32. CCPR/C/GC/32, dated August 23, 2007, par. 29.

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Apart from the exceptions set out in the international instruments, the courts must take any and all reasonable actions to facilitate the public’s access to the hearings, by taking into account, among other factors, “the public interest of the case.”26

From all of the foregoing arises the fact that, although there may be circumstances in which it is possible to limit the public’s and the press’ access to the publicity of proceedings, said circumstances must be carefully weighted with other general interests at stake in the case at hand. Included within these other interests are also some rights of the victims and the society that cannot be relinquished, as analyzed below.

b. The Publicity of Criminal Proceedings as a Guarantee of the Rights to

Justice, the Truth, and the Access to Information

In the International Public Law there is a series of rights vested in the victims of gross violations of human rights intended to obtain truth, justice, and redress in an effective manner. Likewise, when faced with international crimes, both the victims and the society as a whole have the right to know what has actually happened and have access to the relevant information.

These rights must be carefully considered by the judicial authorities undertaking proceedings aimed at ascertaining liabilities for gross violations of human rights. In particular, such rights must be carefully considered when deciding on any procedural action that may restrict the right of effective participation of the interested parties in the proceedings and the right of the victims and the society as a whole to know the truth and to access the information about egregious crimes.

i. Access and Effective Participation of the Victims and Third

Parties in Criminal Court Proceedings

In the last few decades, a series of international principles have been consolidated as they recognize the suffering of victims of gross violations of human rights and the need to address the events that outrage humankind’s consciousness. As a part of this advance, the victims’ right to obtain adequate redress has been crystallized, including their right to access to justice in an effective manner in any proceedings concerned with violations perpetrated against them.

Thus, the Updated Set of Principles for the Protection and the Promotion of Human Rights Through Action to Comba Impunity (hereinafter the “Principles against Impunity”), sets out the obligations of governmental authorities in these matters, by providing that:

26 Committee of Human Rights. Communiqué 125/1986. Van Meurs v. The Netherlands, par. 6.2.

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“Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations; and to take other necessary steps to prevent a recurrence of violations..”27

The right to effective access [to justice] entails the States’ obligation to guarantee the actual participation of the victims and other third parties in the court proceedings. In this respect, Principle 19 of the Principles against Impunity provides that: “States should guarantee broad legal standing in the judicial process to any wronged party and to any person or non-governmental organization having a legitimate interest therein.”

Therefore, this broad access also encompasses national and international organizations and observers with an interest in the proceedings. In respect thereof, there is a recognition that “NGOs, whether national or international, have been important to guarantee the effective enforcement of the States’ duty to fight against impunity by means of an appropriate administration of criminal justice.”28

Likewise, the Inter-American Court of Human Rights has, repeatedly in its own case law, established the victims’ rights to have full access and standing to take part in all of the stages of the criminal investigation and the prosecution of the perpetrators of violations of human rights.29

As expounded below, a broad participation of victims and third parties does not only guarantee the victims’ access to redress, but it is also directly related to their right, and the whole society’s, to know the truth and access the relevant information.

ii. The Victims’ and the Society’s Rights to the Truth and Access

to Information.

27 Principle 1, “Updated Set of Principles for the Protection and the Promotion of Human Rights by means of the Fight against Impunity”. Doc UN E/CN.4/2005/102/Add.1.

28 Report by Diane Orentlicher, Independent Expert in charge of updating the Set of Principles for the Fight against Impunity, as submitted in compliance with Resolution 2004/72, Doc. UN E/CN.4/2005/102, par. 36.

29 Inter-American Court of Human Rights. Case Gomes Lund et al (“Guerrilha do Araguaia”) v. Brazil. Preliminary Defenses, Merits, Redresses and Costs. Judgment dated November 24, 2010. Series C No. 219, par. 257; Case Gelman v. Uruguay. Merits and Redresses. Judgment dated February 24, 2011, par. Series C No. 221, par. 187; Case of the Caracazo v. Venezuela. Redresses and Costs. Judgment dated August 29, 2002. Series C No. 95, par. 118; Case Ibsen Cárdenas and Ibsen Peña v. Bolivia. Merits, Redresses and Costs. Judgment dated September 1, 2010, par. Series C No. 217, par. 238.

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The right to the truth about gross violations of human rights is a principle enshrined in the International Human Rights Law.

In this respect, Principle 2 of the Principles against Impunity recognizes the right vested in the peoples and society to know the truth about egregious crimes:

“Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations.”

On the other hand, Principle 4 establishes that “victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place.”

There is a close relationship between the victims’ effective access to justice and the realization of the right to the truth. In this respect, recognition is thereby given to the fact that “[n]ational criminal judicial proceedings and trials provide one way to uphold the right to the truth. Tribunals deal out justice but also test the truth according to rigorous evidential and procedural standards and lay down the facts in a court record. In promoting the right to the truth, States should guarantee broad legal standing in the judicial process to any wronged party and to any person or NGOs having a legitimate interest therein.”30

Additionally, the right to the truth is closely related to the rule of law and the principles of transparency, responsibility and good management of public affairs in a democratic society.31

The “UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law” (hereinafter “Principles on the Right to a Remedy”),32 establish some guidance for the States to take into account when guaranteeing the victims’ effective access to justice, truth, and redress.

30 “Study on the Right to the Truth.” Report of the United Nations High Commissioner for Human Rights in compliance with Resolution # 2005/66 of the Commission of Human Rights. Doc. UN E/CN.4/2006/91, par. 48.

31 Idem, par. 46.

32 The “United Nations’ Basic Principles and Guidelines on the right of victims of overt violations of international rules on human rights and of gross violations of international humanitarian law to seek remedies and obtain redresses (hereinafter “Principles on Redresses”). UN GA Res. 60/147 dated December 16, 2005.

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Principle IX of the Principles on the Right to a Remedy recognizes the victims’ right to a redress of the harm suffered, including satisfaction measures that should encompass “[t]he verification of the facts and full and public disclosure of the truth to the extent that such disclosure does not cause further harm or threaten the safety and interests of the victim, the victim’s relatives, witnesses, or persons who have intervened to assist the victim or prevent the occurrence of further violations.”

On the other hand, Principle X, concerned with the access to relevant information about violations of human rights and remedies for the redress thereof, provides that “victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations.”.”

Finally, Principle VIII establishes that the access to justice means having access to both public and private information about said remedies.

Likewise, both the Inter-American Commission of Human Rights (the “ICHR”) and the Inter-American Court of Human Rights have remarked that: “the right to be informed of events and have access to information is a right enjoyed by society in general as it is essential to the development of democratic systems.”33

The publicity of the findings derived from investigations for gross violations of human rights is a key element within the victims’ and the whole society’s right to the truth and the access to information. Thus, the Inter-American Court of Human Rights has, repeatedly in its case law, established that the findings of the proceedings shall be publicly disclosed so that the whole society may know the facts and its liable perpetrators.34

On the other hand, the ICHR, by enshrining Principle 4 of the Declaration of Principle of Freedom of Speech, determined that “[t]he access to information held by the State is a fundamental right of individuals. The States are thus obliged to guarantee the exercise of this right.”35

Likewise, the Special Rapporteur for the Freedom of Speech of the ICHR has affirmed the

33 IACHR. “The Right to the Truth in the Americas.” OEA/Ser.L/VIII./52 Doc. 2, dated August 13, 2014, par. 24.

34 Inter-American Court of Human Rights. Case Gomes Lund et al (“Guerrilha do Araguaia”) v. Brazil. Preliminary Defenses, Merits, Redresses and Costs. Judgment dated November 24, 2010. Series C No. 219, par. 257; Case Gelman v. Uruguay. Merits and Redresses. Judgment dated February 24, 2011, par. Series C No. 221, par. 187; Case Manuel Cepeda Vargas v. Colombia. Preliminary Defenses, Merits, Redresses and Costs. Judgment dated May 26, 2010. Series C No. 213, par. 217.

35 ICHR, Declaration of Principles of Freedom of Speech, as approved at the 108th ordinary session, held from October 2 through 20, 2000.

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close relationship existing between the access to information and transparency by sustaining that “[t]his right gains even further importance for it is related to the principle of transparency of the administration and the publicity of governmental actions. The State thus becomes a means to achieve the common good.”36

Based on the foregoing, it is possible to affirm that in the face of cases of massive violations of human rights, both the victims and the interested third parties must have a broad access to criminal proceedings, which does not only entail their standing to take part (ius standi) but also their right to access relevant information. Additionally, the whole society’s right to the truth and the access to information implies a public and thorough disclosure of the truth, which will contribute to heal wounds and thus prevent the future repetition of similar episodes.

c. Recognition and Measures Adopted by High Courts of the Region to

Guarantee the Victims’ and the Society’s Rights in the Face of Gross Violations of Human Rights

Based on the principles mentioned above, some high courts of the region have recognized the importance of the principle of publicity of criminal proceedings in actions brought against perpetrators of gross violations of human rights, in order to guarantee the victims’ rights to the truth, justice, and redress.37

i. Decisions of the Court of Constitutionality of Colombia.

The Colombian Court of Constitutionality has rendered several decisions whereby it has recognized that the principle of publicity of criminal proceedings may not be restricted to the detriment of the rights to the truth, justice, and redress of the victims of crimes against humanity.

In regard to this, the Court has recognized that the interpretation of the victims’ right of participation implies that they can have access to the file from the very beginning of proceedings and take part in all the hearings held in connection therewith. In this respect, it ascertained that “the universal rights to the truth, justice, and redress implicitly encompass the power to take part in all of the procedural stages in furtherance of the right to access to justice under equality conditions.”38

36 ICHR. Rapporteur’s Annual Report on Freedom of Speech, 2001, p. 110.

37 The effective access of victims and the general public to criminal proceedings for gross violations of human rights has faced some challenges in these two countries, which have been analyzed by several observers. Therefore, the breakthroughs achieved in this respect constitute minimum standards to be considered together with some other additional measures that should guarantee the rights discussed in the foregoing sections. See, e.g., Foundation for the Due Process of Law, “The Victims and Transitional Justice, Are Latin American States Meeting International Standards?” 2010, pp. 55 through 56 and 111 through 115.

38 Court of Constitutionality of the Republic of Colombia. Judgment C-370 of 2006.

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Moreover, the Court of Constitutionality has established that, although the stage of investigation is characterized by being reserved, for the purposes of guaranteeing the victims’ rights to the truth, justice and redress, said limitation to the publicity principle may not embrace them and that, quite to the contrary, victims may know of any procedural steps taken by the Prosecution Office aimed at finding out the truth of the facts. Hence, while it is true that the law could lay down the reserved nature of the preliminary investigation in order to safeguard the interestsof justice, the rights of privacy and goodwill of the person subject to criminal investigation, it is not less so since it could exclude the civil party, as it was formerly called, since it would disproportionately affect the essential core of the victims’ rights.39

The Court has thus concluded that “any judicial and administrative decisions hindering the victims from knowing of sua sponte proceedings in judicial cases involving justice and peace, might turn out to be contrary to the victims’ fundamental rights to the truth, justice and redress enshrined in the Constitution and in different international instruments forming part of the legal block of constitutional sources.”40

Therefore, in dealing with the gross violations of human rights committed by paramilitary groups in Colombia, the Court of Constitutionality has made a broad interpretation of the victims’ rights as against the reserve applied to some procedural stages.

ii. Ruling of the Supreme Court of Justice of Argentina

Within the context of the trials conducted for gross violations of human rights committed during the dictatorship, in October 2008, the Supreme Court of Justice of the Argentine Republic rendered a ruling, whereby it agreed that in oral trials, the court in charge of the proceedings would allow the main procedural acts to be broadcast through the radio and on TV.

On doing so, the Court considered that “it is necessary to guarantee the right to information in judicial cases of public significance sparking great interest among the citizenship.”41

Therefore, the Supreme Court took into account the public interest of the case when deciding to guarantee the press its access to court hearings.

39 Court of Constitutionality of the Republic of Colombia. Judgment C-228 of 2002 and Judgment C-451 of 2003.

40 Court of Constitutionality of the Republic of Colombia. Judgment T-049/08.

41 Supreme Court of Justice in Argentina Ruling 29/08 dated October 28, 2008. Available at http://www.cpacf.org.ar.acordadas.php

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iii. Decisions of the Supreme Court of the United States The Supreme Court of the United States has repeatedly held that the public has a constitutional right to observe criminal proceedings absent a compelling reason to close them. The Court has held that this right promotes not only the interests of the defendant but also of the general public:

“The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that, at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality . . . In addition, the significant community therapeutic value of public trials was recognized . . . when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion . . . To work effectively, it is important that society's criminal process ‘satisfy the appearance of justice,’ Offutt v. United States, 348 U. S. 11, 348 U. S. 14, which can best be provided by allowing people to observe such process . . . From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial under this Nation's system of justice.”42

5. Application of the Standards Described Above to the Case At Hand

In the motion under analysis pending before the Court of Constitutionality, there are insufficient reasons warranting a restriction upon the principle of publicity of the criminal proceedings to the detriment of the victims’ rights to have an effective access to justice, or the right to the truth and the access to information to which the Guatemalan society as a whole are entitled. Therefore, there are no reasons for the Constitutional Court to reverse the decision issued by the First Division of the Court of Appeals on May 12 2016.

From the analysis of the ruling issued on August 18, 2015 whereby the First Division ruled “as inadmissible” the separation of the trials pursued against the accused Rios Montt and Rodríguez Sánchez, there arise no reasons concerned with moral interests, public order or national security warranting a restriction upon the publicity of the proceedings in relation to the defendant Rodríguez Sánchez.

In this respect, the First Division based its decision on three grounds: (1) the defendants’ rights to be tried within a reasonable period of time; (2) the principle of procedural economy; and (3) the victims’ rights, and especially, “the fact that they should not become victims again and witness the trial proceedings on repeated occasions.”

42 Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569 (1980).

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In regard to the first and second grounds, although said reasons might actually warrant a restriction upon publicity in furtherance of the interest of justice, most jurisdictions contain certain procedural rules or practices making it possible to remand court proceedings from one trial to another, so as to avoid any duplication thereof.

Additionally, given the fact that the trial held on May 10, 2013, concluded with a sentence condemning Rios Montt and an acquittal for Rodríguez Sánchez, it does not become evident that pursue a joint prosecution against both defendants would inure to the benefit of the principle of procedural economy, since their defense strategies might differ.

With respect to the third argument, notwithstanding the fact that procedural rules preventing revictimization can be applied, the Court must consider that the victims, by means of their legal representatives, have appealed the decision rendered by the First Division in order not to separate the trials against both defendants. This demonstrates that the victims support a public trial against Rodríguez Sánchez, even if it requires two trials. Therefore, it should then in principle be impossible to justify the restriction of the publicity of the proceedings on the fact that victims may be revictimized, as they themselves are the ones asking for the trial against Rodríguez Sánchez be publicly conducted. Beyond the considerations expounded thus far, Guatemala’s own Code of Criminal Procedure is clear when establishing the separation of trials of both defendants. In this respect, although Rios Montt was found legally incompetent and said circumstance implies the application of a special procedural scheme, such situation would not seem to be applicable to Rodríguez Sánchez. In line with this, the Code of Criminal Procedure provides, in its section 485.4 that “[t]he proceedings herein provided for [i.e. special scheme] shall be conducted separately from any other” (underlining has been added). Therefore, the joint prosecution of both trials against Rios Montt and Rodríguez Sánchez seems to infringe the aforementioned statutory provision of the Guatemalan Code of Criminal Procedure, which might have an effect on due process and Guatemala’s obligations vis a vis Article 8 of the ACHR (judicial guarantees). This was recognized explicitly by the Court of Appeals, which considered on May 12th 2016 that the decision to join the prosecutions of Ríos Montt and Rodríguez Sánchez had violated due process rights of the defendants and the victims. In reaching that conclusion, the Court of Appeals concluded that the trial court had created a procedure not established by law by applying the special, closed procedures permitted by article 485.4 to Rodríguez Sánchez when his case did not meet the requirements of that article.

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Additionally, even if Rodríguez Sánchez should waive his right to a public trial, said waiver should be assessed by the Court by taking into account some other considerations of general interest both for the victims and the Guatemalan society as a whole. Based on the foregoing, it is possible to infer that in this case there seems to be no sufficient reason whatsoever to subject Rodríguez Sánchez to the same scheme as that applied to Ríos Montt, hence to keep the public away from the hearing in respect of this accused would render such procedural step arbitrary.

6. Conclusion

Once the international standards currently applicable to any matters concerned with the publicity of criminal proceedings have been analyzed, as well as the rights to which both the victims and society are entitled under the International Law, the ABA do hereby considers that in this case none of the circumstances warranting a restriction upon the principle of publicity in relation to the trial pursued against defendant Rodríguez Sánchez, actually seem to take place. In the first place, the Court must assess that the publicity of proceedings is an indispensable means both for the international community and the Guatemalan society to exert control and surveillance over judicial authorities. In this case, this consideration is not a merely rhetoric one, since throughout the proceedings many allegations of irregularities and external tampering with the judicial authorities’ own activity, as well as delaying procedural maneuvers, have been expressed.43 Secondly, the Court shall consider the public interest involved in this case. At the beginning of this brief, we made reference to the relevance hereof for Guatemala and the whole region. These proceedings are undoubtedly the most important ones in the history of Guatemala in relation to the serious international crimes committed in the past. Given the huge dimension of the violence perpetrated, the notion of victim itself is not merely limited to those formally accredited as civil complainants. This Court must consider that a significant part of the Guatemalan society was affected by this systematic violence and that many people lost their dignity as a result of such episodes. Their rights to justice, truth, and redress may be partly satisfied if the public access to the proceeding is thus ensured. In regard thereto, just as we pointed out above, Principle 2 of the Principles against Impunity provides that “[e]ach person has the inalienable right to know the truth” in 43 In relation to the delaying maneuvers, see, e.g., the communiqué issued by the Special Advisor of the United Nations for the prevention of Genocide, Adama Dieng, and the Special Rapporteur for Transitional Justice, Pablo de Greiff, in August 2015, note 3 above. See also, International Crisis Group, “Justice on Probation in Guatemala: the Ríos Montt case,” September 23 2013, Executive Summary; Amnesty International, “Shameful decision to postpone trial against Ríos Montt, a new stain in Guatemala’s judicial system,” January 11, 2016; IFHR, “Genocide in Guatemala: Ríos Montt guilty”, September 2013, pp. 19-25.

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respect of any massive violations of human rights. Inasmuch as this case involves crimes against humanity and genocide, the only way to guarantee that all of the victims have a certain degree of participation can happen thanks to the work performed by mass media. In this respect, several witnesses have expressed what testifying in such proceedings meant to them. One of the deponents said she had testified on behalf of her disappeared daughters, whose deaths “are going to hurt me until I die,” and so that the accused and their accomplices “feel the suffering we have suffered.” Another witness exemplified the power of public narration before a court of law, by pointing out that “even though we are poor, maybe without any competence, we think they must show respect for us,” while he felt certain distrust in the judicial system, “the people get sad because this means the law is not obeyed. The law is like a toy.”44 Finally, the Court should consider the victims’ rights to have an effective access to justice, as well as their rights to justice and redress come true, besides guaranteeing the Guatemalan society as a whole its right to access to the truth and information. In this respect, this Court must take into account that some sectors of the Guatemalan society still deny the occurrence of many violations and the existence of genocide during its armed conflict. Within this context, the public disclosure of the judicial truth about the facts may have an immeasurable effect to restore Guatemalan social tissue and to prevent the repetition of violations. Dated: June 28 Respectfully submitted, Of Counsel: /s/ Alejandra Vicente Paulette Brown* President

American Bar Association 321 North Clark Street Chicago, IL 60654 312-988-5000 abapresident@americanbar.org *Counsel of Record

44 Also gathered in: International Crisis Group, “Justice on Probation in Guatemala: the Ríos Montt case,” September 23 2013, p. 6.