Executive Summary

Guatemala: justice and rule of

law at a crossroads
August 2019 / N° 737a
Cover photo: Protests demanding the resignation of President Jimmy Morales after the congress rejected a request
to lift the president’s immunity so that he could face a corruption investigation on the irregular financing of his party.
September 2017. © JOHAN ORDONEZ / AFP
Executive Summary

In a mere ten years, Guatemala has gone from being a paradise for criminals marked by a history
of constant violations of justice, to a regional and global benchmark in the fight against impunity.
Leadership from Public Prosecutors Claudia Paz y Paz and Thelma Aldana has been a critical factor
this past decade as Guatemala demonstrates to the world that systems of impunity and corruption
could be faced and defeated. This progress has been largely due to the important work accomplished
by the International Commission against Impunity in Guatemala (CICIG), which for the past 11 years
has worked intensely in association with the country’s Public Prosecutor’s office (MP) to indict 660
people, 400 of whom were convicted in more than 100 cases brought before the Guatemalan judiciary
authorities. It is considered that between 2007 and 2017, the CICIG and the special anti-impunity unit
from the MP [Fiscalía Especial Contra la Impunidad – Special Anti-Impunity Prosecution Office (FECI])
contributed to reducing homicides by more than 4,500. After 11 years of intense work in the country,
CICIG is a reference and an example of how the international community can play an essential role in
consolidating local efforts to strengthen the rule of law.

The MP and CICIG have also revealed hidden criminal structures and their ties to political and corporate
actors. More than 70 criminal networks were thus identified, some of them linked with drug trafficking
and other known forms of organized crime such as illegal political-economic networks (RPEI), which
have captured a number of public institutions (Land Registration, Ministry of Defense, National Health
Insurance, the country’s major municipalities, etc.).1 The CICG has also contributed to strengthening the
country’s institutionality.

Concerned about the situation in which the fight against impunity and corruption were left, after the
departure of the CICIG from the country, FIDH has carried out an international mission of investigation
and advocacy in Guatemala from August 19 to 24, 2019. The international mission composed of Gloria
Cano, director of the litigation area of ​​APRODEH and Jimena Reyes, lawyer, director of the Americas
office of the FIDH was supported by La Convergencia por los Derechos Humanos, a coalition of human
rights ngos from Guatemala.

Following its mission in Guatemala, the FIDH and La Convergencia por los Derechos Humanos is
concerned that the progress accomplished in the area of justice, the fight against impunity, and the
strengthening of rule of law in Guatemala these past 10 years is now being seriously threatened. In this
report, the FIDH and La Convergencia por los Derechos Humanos notes a serious risk of deterioration
of Guatemalan rule of law and justice in the next six months and beyond. On August 27, 2017, after
investigations against President Jimmy Morales’ family and party for illegal campaign funding, the
president declared the CICIG Commissioner Iván Velázquez persona non grata and attempted to deport
him from the country.2 This was aimed at thwarting the CICIG’s anti-corruption work. It led almost
immediately to calling the group that supported the president, including the capital’s mayor, Álvaro
Arzú, and the national association of municipalities (ANAM) “Pacto de Corruptos” (pact of the corrupt).
This designation would soon be extended to those that had been negatively affected by the judicial
cases emblematic of the improvements achieved in the judiciary branch, namely the members of the
military involved in serious crimes committed during the armed conflict and the economic, political, and
religious elites connected with acts of corruption.

1. International Crisis Group: “Rescatando la lucha de Guatemala contra el crimen y la impunidad” https://www.crisisgroup.org/
es/latin-america-caribbean/central-america/guatemala/70-saving-guatemalas-fight-against-crime-and-impunity
2.  Casos Botín en el Registro de la Propiedad y Financiamiento electoral ilícito FCN-Nación. Información disponible en:https://
www.cicig.org/casos-listado/

FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads 3

 Social organizations are protesting President Jimmy Morales’ decision to uphold a ban on Iván Velásquez,
former head of CICIG, from entering the county. September 2018. © JOHAN ORDONEZ / AFP

The group has not limited its attacks to the CICIG. The Pacto de Corruptos has attempted to dismantle
the judicial and institutional structure that made it possible to change the core functioning of the justice
system, to criminalize the key players in advances in the area of justice, and to reverse the judicial cases
supported by the CICIG.

Thus, in addition to constant media attacks and stigmatization, there has been a constant stream of
spurious accusations, for instance against the staff of the FECI, set up within the MP to prosecute cases
investigated in collaboration with the CICIG, which will remain solely responsible for these with the
CICIG’s departure. FECI civil servants are currently facing 80 spurious lawsuits, and FECI director Juan
Francisco Sandoval is in a particularly serious situation. Almost all these law suit are initiated either by
those persons prosecuted or by their support groups.

Additionally, there have been numerous acts of harassment and criminalization against judges of
the High Risk Courts of Law and magistrates involved in the most important trials, who have also
reported incidents regarding their safety often perpetrated by members of their protection details.
Among the magistrates affected are the three magistrates of the Court of Constitutionality who upheld
positions on the extension of the CICIG and its staff in Guatemala. The Ombudsman, who was granted
precautionary measures in November 2017, has faced demands for his removal from Congress’s
Human Rights Committee a week after denouncing to the Interamerican Commission of Human Rights
the government’s actions to undermine the CICIG’s work, to reduce the resources of his institution, and
threats and complaints against him.

These criminalization processes are aimed at submitting the targeted persons to a serious situation of
uncertainty regarding their future, and given the growing lack of independence of the judiciary branch,
some of these actions could lead to criminal conviction even though completely unsubstantiated.

This is why the FIDH and La Convergencia por los Derechos Humanos calls on the criminal justice
authorities and particularly the MP to take the necessary steps to prevent the criminal justice
disciplinary systems from being used to generate spurious lawsuits against civil servants working
within the law, and to promptly resolve these malicious complaints, which are inhibiting and
restraining the civil servants’ work. It also issues a call to strengthen the existing protection systems
within the institutions.

4 FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads

Students from the University of San Carlos participate in a protest demanding the resignation of Guatemalan president Jimmy Morales, and
supporting the former head of CICIG, Iván Velásquez. August 2017.© JOHAN ORDONEZ / AFP

Moving toward administrating impunity?

In early 2020, there will be a new parliament and government. In the months leading to 2020, there is a
serious risk of actions aimed at consolidating the process to reinstate impunity through nominations
to the high courts and the dismantling of the institutions devoted to fighting corruption and impunity.

In November 2019, Congress will appoint the judges of the Supreme Court and the Appellate Court.
Analysts and politicians have highlighted irregularities in the selection of magistrates since the 2009
election process, showing that far from seeking the designation of competent jurists, these processes
have been intended to guarantee the selection of like-minded magistrates who will facilitate the impunity
of former civil servants, the military, and politicians. This has been done by buying off the decision of
persons with the power to elect magistrates, elections in exchange for favors from the magistrates, or
with application committees made up of lawyers defending those accused in cases of corruption and
organized crime.

The FIDH and La Convergencia por los Derechos Humanos is calling on Congress, in its participation in
the election of senior positions in the judicial system and in the relevant authorities in the fight against
corruption (Magistrate of the Supreme Courts, the Nation’s General Controller, TSE Magistrates, etc.), to
comply with criteria of propriety, independence, and integrity, which entails excluding candidates who
are connected with organized crime.

Absence of clarity regarding the follow-up of the Prosecution’s high-impact cases

The imminent departure of the CICIG will not only take away the MP’s main ally in its work against
corruption, it will also make it lose its own institutionality. This has been pointed out by the current General
Prosecutor, Consuelo Porras, who has indicated that the FECI, the result of an agreement between the MP
and CICIG, will no longer be in force in September, when the CICIG mandate comes to term. She has added
that they will subsequently create a section-based prosecution authority against impunity that will have
jurisdiction to pursue the work accomplished by FECI and will also be called FECI.

The FIDH and La Convergencia por los Derechos Humanos considers that there is an absence of clarity
regarding who will continue the work jointly accomplished FECI and the CICIG and how this will be done.
For instance, the General Prosecutor has not responded to the CICIG on its proposal to include the

FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads 5

60 persons currently comprising the Guatemalan CICIG staff (which includes, among others, financial
and criminal analysts, and forensic and technical experts) in the future FECI. This is of the utmost
importance, as the work accomplished by these analysts involves making connections among the
different evidence obtained. Not integrating the Guatemalans who have worked at CICIG these past 12
years and acquired major expertise in the domain would constitute a serious signal that the Prosecutor
is not willing to follow up on the achievements supported by the CICIG.

This situation, in addition to the recent departure of the Prosecutor for Electoral Crimes (who had played
a critical role in cases of illegal campaign funding) following threats against him might lead to the loss
of the most noted forms of expertise in the work accomplished jointly with the MP and the CICIG.

The FIDH and La Convergencia por los Derechos Humanos calls on the General Prosecutor to ensure
the continuity of the staff that has made it possible for the prosecution to achieve successful results,
and to include staff from the CICIG in the work of the FECI and of other MP sectors. The FIDH and La
Convergencia por los Derechos Humanos also calls on the General Prosecutor to ensure that the staff
of the prosecution in charge of high-impact cases complies with criteria of propriety, independence,
and integrity.

Weakening of high-impact cases

All these factors and others, such as the fact the CICIG will no longer support lawsuits in these cases as
party to the case, creates concern over the results of the cases still under investigation, those in process,
and even those that have succeeded in penalizing the perpetrators. For example, the report describes
the challenges in the Pisa Chiquimula and Línea cases. Guatemala’s ratification of the UN Convention
against Corruption and of the Inter-American Convention against Corruption obligates Guatemala to
“promote and strengthen measures to prevent and combat more efficiently and effectively.” For this
reason, after achieving significant convictions, measures should be taken to prevent the obtained
sentences from being revoked without justification, as has happened in part in the IGSS Pisa case.

Weakening of democracy

Beyond the fight against impunity for recent crimes, Congress has sought to roll back legislation (like
the reform of the National Reconciliation Act) aimed at guaranteeing impunity, or which attempts to
reduce organized civil society’s possibilities of responding to abuses (like the NGO Act).3 Similarly, these
changes in legislation have also been a reflection of the involvement of the most conservative sectors,
as seen by the discussion of draft bill that increase the restriction of sexual and reproductive rights of
girls and women and the LGTBQ population.4

The FIDH and La Convergencia por los Derechos Humanos urges Congress to abstain from promoting
legislative initiatives that will negatively affect the human rights of the population or of some of its
sectors, and to promote and approve laws that will make it possible to deepen democratic progress
and support human rights.
It also calls on the President to exercise his constitutional veto power against such legislative
initiatives and other freedom-restricting laws. Additionally, it calls on the next government to act
within its jurisdiction and in compliance with the separation of powers, to take initiatives aimed at
preventing corruption, ensuring that the justice system works as it should, and ensuring compliance
with human rights.

One of the important impacts of the joint Guatemala MP work with the CICIG has been its power to reveal
and detail how illegal political and economic networks capture the state’s institutions to prosper illegally
at the expense of the Guatemalan population.5 This deeply undermines governability and democratic
institutions, and fosters impunity and the erosion of rule of law.

3. Amnistía Internacional. “Leyes concebidas para silenciar: ataque mundial a las organizaciones de la sociedad civil valiente”.2019
Disponible en:https://www.amnesty.org/download/Documents/ACT3096472019SPANISH.PDF
4.  Según el Comité de Derechos Económicos, Sociales y Culturales (CESCR), “la imposición de restricciones en relación conel
derecho de las personas a tener acceso a información sobre la salud sexual y reproductiva vulnera (...) el deber [de losEstados]
de respetar los derechos humanos”, E/C.12/GC/22, óp. cit., párr. 41
5. Comisión Internacional Contra la Impunidad en Guatemala, “Guatemala: Un Estado Capturado” 2019

6 FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads

Public corruption, such as that described in the Línea or in the Pisa case, also compromises the
governments’ ability to comply with its obligations in terms of economic and social rights, including
health, education, water, transportation, or sanitation. Corruption is one of the causes of poverty. In this
sense, it is important to remember that Guatemala is second-to-last in Latin America for multidimensional
poverty, and in 2018, poverty in Guatemala increased. This is undoubtedly a contributing factor
underlying the migration of a large number of Guatemalans to the United States every year.

The international community, and particularly the European Union and the United States, must remain
vigilant regarding possible setbacks in the area of justice and human rights, and also give continuity
to and increase the technical and financial contributions they have granted to fight against corruption
and impunity in Guatemala, as well as support national and international initiatives aimed at combating
corruption or impunity, and continue to support and strengthen the generation of transparency, auditing,
and accountability mechanisms. The United States should not abandon support for the fight against
impunity for acts of corruption, particularly those that help capture of state entities that profit from
or are complicit in crimes; to abandon this line of work is tantamount to contributing to Guatemala’s
insecurity and inequality, principal causes of the migration to the United States.

FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads 7

Recommendations:

In view of this situation and with the premature termination of the CICIG’s work in the country,
we require the public and international community authorities to maintain a position aimed at
ensuring and consolidating the progress achieved in the justice system and objecting to the
measures and reforms that threaten human rights and the strengthening of the rule of law in
Guatemala.

We require of Public Prosecutor and her Office:

1. That they ensure that the FECI and the other prosecution offices that have collaborated with the
CICIG can carry on performing their work through:
a. Continuity of their personnel, ensuring to this end their security and that of their
families.
b. Early resolution of the spurious reports made against them.
c. Continuation of a process to strengthen the MP in this regard and to ensure
proper transfer of powers from the CICIG through incorporation of their national
personnel to various areas of the MP.
d. That they make sure that the high impact cases that are being prosecuted are
heard according to the guarantees of due process and are dealt with by officials
who meet the needs of suitability, independence and integrity.
e. That they take steps to ensure that the disciplinary system is not used to
take reprisals against prosecutors because they are performing their work in
accordance with the law.

2. For the Judiciary power:

a. To ensure a system of protection for judges and magistrates that effectively
guarantees their safety.
b. To strengthen the mechanisms for ensuring that the Court’s disciplinary system
is effective and that judges and magistrates are not punished or removed for
performing their work in accordance with the law.
c. To establish new and increased controls for the substantive personnel of the
Courts to ensure that they act in accordance with the law.

3. For Members of the Congress:

a. To refrain from promoting legislative initiatives that affect the human rights of
the population, or certain sectors of it.
b. To promote and pass laws that enable furtherance of democratic progress and
human rights.
c. To promote the legislative reforms needed to ensure the independence of the
highest positions in the justice system.
d. Their role in choosing the next Attorney General and the senior authorities of the
justice system complies with criteria of suitability, independence and integrity.
e. Their role in choosing the senior positions of authorities relevant to the progress
of the fight against corruption (General Comptroller of the Nation, Supreme Court
judges, etc.) complies with criteria of suitability, independence and integrity,
which means excluding candidates with ties to organized crime structures.
f. To promote laws and legislative reforms aimed at ensuring transparency,
oversight and submission of accounts, including the amendment to the Civil
Service Act.

8 FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads

We would ask the next President to implement, within his/her powers and observing the
division of powers, actions aimed at:

1. Preventing corruption:
1.1. To continue reinforcing controls to avoid unlawful electoral funding and to
strengthen the authorities that enable criminal prosecution of this offence.
1.2. To implement measures and controls aimed at avoiding the commission of new
acts of corruption and enhancing the measures to make public procurement
transparent and also the conduct of the various public authorities, especially those
where the existence of internal corruption conspiracies has already been proved.

2. To ensure correct functioning of the justice system:

2.1. To guarantee that the fight against impunity in Guatemala continues by defining
specific proposals that ensure the continuity of the support of the international
community in this area and that make it possible to establish mechanisms to
guarantee effective monitoring of cases that are being investigated and prosecuted,
and the commencement of new cases.
2.2. To promote the legislative reforms needed to ensure the independence of the
highest positions of the justice system.
2.3. Their role in choosing the next Attorney General complies with criteria of suitability,
independence and integrity.
2.4. To take the necessary steps to ensure that the senior positions of the justice system
and of other authorities relevant to the progress of the fight against corruption
(General Comptroller of the Nation, Supreme Court judges, etc.) are appointed in
accordance with criteria of suitability, independence and integrity.
2.5. To ensure that the justice administration system has a sufficient budget.
2.6. To support the bodies of the justice system, according to their functions, so as to
provide continuity to the processes to strengthen the various authorities, making
it possible to support efforts to investigate events that have traditionally enjoyed
impunity and to punish those responsible for them.
2.7. To avoid the implementation of actions that involve interference in the justice
system and guarantees of impunity for its government or any other sector.
2.8. To enhance coordination between the Ministry of the Interior, the Courts and the
Public Prosecutor’s Office.

3. To ensure the effectiveness of human rights:

3.1. To exercise his/her constitutional right to veto in relation to the stated legal
initiatives and any others that may arise of a similar nature.
3.2. To promote any other rules designed to consolidate the progress obtained in terms
of human rights and to take on new and increased challenges relating to justice.
3.3. To ensure the continuity of the work of international human rights organizations
and authorities, with guarantees of security for their personnel, through a regulatory
and institutional framework that complies with international standards.

4. We require the international community:

a. To maintain their vigilance against possible relapses that may occur in relation to
justice and human rights.
b. To provide continuity and to increase the technical and financial contributions that
they have offered for the fight against corruption and impunity in Guatemala.
c. To support national and international initiatives aimed at confronting corruption
and impunity.
d. To continue to support the creation of mechanisms for transparency, oversight
and submission of accounts.
e. To continue collaborating in the controls to avoid unlawful electoral funding and
the authorities that enable criminal prosecution of this offence

We require the United States not to abandon its support in the fight against the impunity of acts
of corruption, in particular, those that help to appropriate State entities in order to profit or so that
they may be their accomplices in crimes and offences. Abandonment of this issue is equivalent
to helping Guatemala to revert to a country with greater inequality and insecurity, the principal
causes of the migration to the United States.

FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads 9

 This document is supported by the Agence Française de
Développement. Nevertheless, the ideas and opinions presented
in this document do not necessarily represent those of AFD.

10 FIDH - Executive Summary - Guatemala: justice and rule of law at a crossroads

 Keep your eyes open

Establishing the facts - Investigative and trial observation missions

Supporting civil society - Training and exchange
Mobilising the international community - Advocacy before intergovernmental bodies
Informing and reporting - Mobilising public opinion
Director of
publications: For FIDH, transforming societies relies on the work of local actors.
Dimitris
The Worldwide movement for human rights acts at national, regional and international levels
Christopoulos
in support of its member and partner organisations to address human rights abuses and
Editor in chief:
Éléonore Morel consolidate democratic processes. Its work is directed at States and those in power, such as
Authors: armed opposition groups and multinational corporations.
Gloria Cano, Its primary beneficiaries are national human rights organisations who are members of the
Jimena Reyes,
Movement, and through them, the victims of human rights violations. FIDH also cooperates
Maria Martin
with other local partner organisations and actors of change.
Coordination:
Jimena Reyes
Design:
FIDH

With the support of the Convergence for Human Rights

CONTACT US
CONTÁCTENOS
FIDH
17, passage de la Main d’Or
75011 Paris
Tel: (33-1) 43 55 25 18
www.fidh.org
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Dépôt légal octobre 2019 - FIDH (Ed. anglaise) ISSN 2225-1804 - Fichier informatique
FIDH - Executive Summary conforme à la loi dujustice
- Guatemala: 6 janvier and
1978rule
(Déclaration
of lawN°330 675)
at a crossroads 11
 FIDH is an international
human rights NGO federating
184 organizations
from 112 countries.

FIDH takes action for the protection of victims of human rights violations, for
the prevention of violations and to bring perpetrators to justice.

FIDH works for the respect of all the rights set out in the Universal Declaration of
Human Rights: civil and political rights, as well as economic, social and cultural
rights.

FIDH was established in 1922, and today unites 184 member organisations in
112 countries around the world. FIDH coordinates and supports their
activities and provides them with a voice at the international level.

Like its member organisations, FIDH is not linked to any party or religion and is inde-
pendent of all governments.

www.fidh.org