PART 3: FROM HERE TO ETERNITY
THE CICIG PROSECUTES THE PAVÓN PRISON CASES
In 1996 the Government of Guatemala took two decisions exemplifying the view that “tomorrow is a better day.” One of these was to stop the country’s internal conflict with a faulty truce. The second decision, less well-known, turned out no better. The government gave up control of its toughest prison, Pavón, and allowed its inmates to run the place, while it merely policed the perimeter.
Authorities called it an experiment in self-government. But it created a genuine house of horrors, perhaps best documented in accounts by The Sydney Morning Herald.
Ten years later, in 2006, the government of President Oscar Berger decided to re-take the prison by force. The battle, pitting some 3,000 government troops against 1,500 of Latin America’s toughest inmates, ended with the loss of seven prisoner lives and the dispersal of surviving prisoners to other penal facilities.
Given the inherent violence in the situation, one might say that seven lives lost was a low number. Indeed, Guatemala’s human-rights ombudsman – which often criticizes the government – called the Pavón takeover a job well done.
Later, however, the ombudsman claimed that a conspiracy had existed to kill specific prisoners, and recommended to Berger’s successor that he put the CICIG (“International Commission Against Impunity in Guatemala”) on the case. Neither party needed urging: President Álvaro Colom was an ardent admirer of the CICIG’s, while the CICIG was a prosecutorial machine waiting to bring charges.
As it happens, the CICIG’s prosecutions in the Pavón cases have been inconsistent at best and fishy at worst. The bottom line registers most tellingly: after nine years of prosecutorial activity on both sides of the Atlantic, with millions of dollars wasted and many lives disrupted, the CICIG – despite some interim rulings in its favor – has not been able to sustain a single conviction.
The Hunt Continues: Prosecuting Erwin Sperisen
One of the cases – thanks to the CICIG’s endless appetite for appealing its losses – remains unresolved as of this writing. Working with a group of self-described human-rights activists in Switzerland eight years ago, the CICIG managed to cobble together an effective prosecution of Erwin Sperisen, who had been Guatemala’s chief of police at the time of Pavon’s recapture.
Sperisen, a dual citizen of Switzerland and Guatemala, was convicted of extra-judicial execution and spent five years in solitary confinement in a Swiss prison – treated as though he were a Nazi war criminal, which is how the CICIG and the human-rights activists had managed to paint him.
In June 2017, Switzerland’s highest court determined that Sperisen’s rights to a defense and to due process had been violated. The high court freed him from jail and ordered a new trial to begin in April 2018. But the conditions of the new trial do not augur well for justice. A fact of overriding significance is that the judge and prosecutor in the new trial will be the same persons who played those roles in the fraudulent trial that sent Sperisen to jail. The prosecutor is actually the son of the man who founded the human-rights group behind Sperisen’s troubles. Evidently, Switzerland is the small country that it seems.
In the new trial, a crucial decision of the court will be how it treats two pieces of evidence that the CICIG, for a decade, has kept suppressed. During the trial in Austria of Sperisen’s former assistant Javier Figueroa, the court allowed the defense to show a video of the prison takeover – a video kept under wraps by the CICIG – which shows unmistakably that a gun-battle occurred. That fact fatally exposes the charge of extra-judicial execution, which requires that the victim be under the total control of his killers.
Likewise, attorneys for Sperisen are certain to raise another video made by a Swiss journalist, showing that the CICIG had fraudulently extracted testimony from the mother of a prisoner who died during the Pavón gun-battle. First time around, the Swiss court that convicted Sperisen rejected this evidence, in which the mother disavowed a French-language power of attorney that the court accepted. The video makes clear that she had signed it, at the CICIG’s insistence, without understanding the language; a fact that renders her testimony invalid.
One would have to say that the odds are poor for Sperisen in facing the same judge and prosecutor who convicted him in the earlier, tainted trial. Zealots who place politics before justice have poor records for openness and flexibility. That observation goes twice or more for the CICIG.
In Guatemala, the prosecutorial axe fell on Alejandro Giammattei, director of the national penitentiary system. The justice ministry, with the CICIG calling the shots, indicted him for “extrajudicial execution” or murder at Pavón and at another prison. A subsidiary charge in the indictment was “illicit association” or conspiracy to do murder.
The prosecutorial conduct of the CICIG was anti-legal in nature. Prosecutors held testimony hearings without notifying the defense, which saw the bulk of the prosecution’s evidence only minutes before Giammattei was to appear in court. Meanwhile, the CICIG’s website portrayed Giammattei variously as a kidnapper, a paid assassin, an extortionist, a money launder and a drug trafficker – even though none of those crimes had been imputed to him.
The CICIG’s chief witness against Giammattei was one of his deputies, retired Lieut. Col. Luis Linares, who coordinated the government’s effort to re-take Pavón prison. In that operation, the prison guards were to wait until other forces had re-established order inside. So Giammattei gave the order for guards not to carry arms when entering the prison.
It emerged that Linares had disobeyed this order and told one of his own men to withdraw two weapons and 90 rounds of ammunition from the guards’ armory. According to testimony, Linares entered with the invading force and fired his weapon. The CICIG’s own report said casings found at the crime scene were 7.62 mm caliber, the same as had been given to Linares’s man.
The CICIG hid this exculpatory evidence from the defense. It didn’t investigate weapons taken from the armory without authorization; and it didn’t investigate the weapons Linares and his man had carried during the raid.
After two days of testimony, the trial judge dismissed the murder charges against Giammattei. Seven months later, he went to trial on the conspiracy charge. When prosecutors affirmed that the conspiracy had begun on “a day in June 2006,” the judge noted a lack of specificity as to places, dates or times that the accused had supposedly met to plan their crime. The judge also noted that the law against illicit association had not been in existence at the time the defendants were supposed to be violating it.
The judge ordered the case closed and the defendants freed. That was the cue for the CICIG to begin its cycle of appeals. The appeals court upheld the judge’s decision, but then the justice ministry appealed to the Supreme Court, the country’s second-highest, which favored the CICIG over the defendants.
The defense petitioned the country’s highest judicial body, the Constitutional Court, for an injunction against the Supreme Court ruling. On July 18, 2012 the high court – which was not yet completely under the CICIG’s control – favored the defendants, with a rebuke to the Supreme Court. That court was then obliged to uphold the defendants’ appeal and grant their dismissal.
Prosecution in Spain
It was finally a prosecution in Spain that crushed any doubts about the CICIG’s tactics and motives in the case. In October 2010, four years after the events at Pavón, former Interior Minister Carlos Vielmann was arrested in Spain, where he also held citizenship and where he was living. At the request of Guatemala’s justice ministry and the CICIG, a local court charged Vielmann with murder and conspiracy in the Pavón killings. He was released on bail, pending trial.
After a further five-year delay, Vielmann’s trial began in Spain in November 2015. Despite the dismissal of those same charges against Giammattei years earlier and a 2013 not guilty verdict in Austria of former assistant police director Javier Figueroa, the CICIG had decided to use its worldwide prosecutorial power against a man who – given his position as Interior Minister – would have been nowhere near the killings.
For the Spanish trial, the CICIG also trotted out its old witness, former Lieut. Col. Luis Linares. He testified that the conspirators – Vielmann and others – had a list of prisoners whom they had marked for execution.
In response to the CICIG and Guatemala’s justice ministry, Vielmann filed a civil suit in Spain against sixteen parties in rebuttal to “false and humiliating charges” launched against him in a YouTube video entitled “Impunity: Guatemala Report.” Among the defendants were the CICIG commissioner and staff, and Guatemalan justice minister Claudia Paz y Paz.
The trial court in Spain did not see things as the CICIG would have wanted. The Spanish judge all but called Linares a paid witness, noting that he resided in Canada with a pension from the CICIG. The court rejected his testimony, and that of other prosecution witnesses, as lacking credibility and as having the appearance of being tainted.
Instead, the court resurrected a view of the Pavón events that had been current at the time. The deaths, it said, were part of a violent confrontation, and the human-rights ombudsman had been right to praise the operation. The court said it could not find “any proof of a designed plan by the government of Guatemala for physical elimination [of persons].”
With the exception of Sperisen’s case in Switzerland, still ongoing, that completes the balance-sheet of the CICIG and its nine years of work on the Pavón killings. Due to its privileged position – its ability to prosecute anyone, anywhere, with no accountability – it consistently failed to learn from its mistakes and kept repeating them. Everywhere it went, it brought the same tainted witnesses and discredited testimony, trying to obtain convictions that it could not win in Guatemala itself.
A colloquial definition of insanity is that of trying the same failed tactic again and again, expecting it to yield a different result this time. The definition, if not the word, fits the CICIG perfectly in these cases.
PDF version: HERE