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PART 6: SEVEN YEARS IN PRISON FOR NOTHING AT ALL

THE CASE OF THE VALDÉS PAIZ BROTHERS

Guatemala, May 2009November 2017


2009: Murder or Suicide?

On May 10, 2009, attorney Rodrigo Rosenberg was shot to death near his home in Guatemala City. One day later, a video appeared on social media in which Rosenberg – seeming to speak from the beyond – said his death had been caused by President Álvaro Colom, First Lady Sandra Torres and their associates.

The month before Rosenberg died, two of his clients – Khalil Musa and Musa’s daughter Marjorie – had been gunned down in the capital. The elder Musa, a businessman, was also a director of Banrural or Guatemala’s development bank, a position to which President Colom had appointed him.

In the video, Rosenberg claimed that President Colom, First Lady Sandra Torres and their associates had been using Banrural to embezzle and launder money. Musa was killed, or so Rosenberg said, because he had objected to the corruption.

From the grave, and thanks to the magic of social media, Rosenberg was demanding Colom’s resignation. His call, broadcast on national TV, inspired large-scale protests that put Colom’s presidency in danger.

The president vehemently denied the claims and called on the CICIG to investigate.

The CICIG and President Colom

The International Commission Against Impunity in Guatemala (CICIG) is a branch of the UN that works through Guatemala’s justice ministry. According to its mandate, the CICIG “carries out independent investigations into the activities of illegal security groups and clandestine security structures,” defined as groups that “affect the Guatemalan people’s enjoyment and exercise of their fundamental human rights.”

By September 2009, police had arrested nine men who were charged with Rosenberg’s killing. But the CICIG was not to be ignored. In November 2009 it issued a report saying its own investigation had revealed the possible participation of Francisco and Estuardo Valdés Paiz, bothers who were businessmen in the pharmaceutical field.

Those brothers were cousins of Rosenberg’s ex-wife. The CICIG stated an unusual, not to say eccentric, theory of the case. It alleged that the Valdés brothers had actually hired the killers at Rosenberg’s behest. In a nutshell, the CICIG was claiming that Rosenberg had committed suicide by means of contract killers, with the aim of bringing down Colom’s government.

The CICIG was evidently trying to get Colom off the hook and save his presidency. If that was the aim, it worked.

The Case Unfolds

In December 2009, taking direction from the CICIG which it termed a “co-plaintiff,” the justice ministry requested the arrest of the Valdés Paiz brothers. Its case was based entirely on testimony by witnesses in prison.

In response, the Valdés brothers presented a motion to let them see the evidence. The responsible court denied the motion.

On June 28, 2010, the Valdés brothers surrendered at the CICIG’s office. The expropriation of their assets – a CICIG trademark tactic against its targets – quickly began; and the brothers were confined to the prison at the Mariscal Zavala military base, where they were to await trial.

Almost from the start, the case went badly for the CICIG. The prosecution moved to raise the charge from murder to assassination, but Judge Veronica Galicia denied the motion. After some controversy, Galicia recused herself from the case and turned it over to Judge Carlos Aguilar.

Almost immediately the CICIG moved for the recusal of Judge Aguilar, claiming that he bore the CICIG a grudge and was a personal enemy of the CICIG’s commissioner. Aguilar, for his part, stated in early 2012 that the CICIG did not have a mandate to involve itself in the case, which he termed an ordinary criminal matter.

The CICIG’s motion to recuse Aguilar was rejected. The CICIG repeated its motion twice more and was refused each time. These cycles of motion-and-rejection added many months to the judicial process.

After losing the third recusal, Guatemala’s Supreme Court granted the CICIG an injunction, which froze the case. Just days later, on November 30, 2012, the CICIG published a statement in which it accused Aguilar and five other judges of favoring criminal groups opposed to the CICIG’s presence in the country.

Now that the CICIG had picked a public fight with Aguilar, he could no longer appear to be objective and was obligated to excuse himself; on January 14, 2013, he took himself off the case. The commissioners then showed themselves to be sore winners – by gloating, on their website, that the Supreme Court had found fault with Aguilar’s objectivity. All along the CICIG knew it could apply its smears without consequence, thanks to the prior grant of diplomatic immunity which automatically protected everything, no matter how lowly or despicable, that the commission might do.

For all its swagger, however, the CICIG could not keep the tables from turning against its flawed case. On July 13, 2013, state’s witness Manuel Cardona retracted his testimony against the Valdés brothers, saying he had been coerced by the CICIG and by justice ministry prosecutors to accuse the brothers falsely.

The point was made again in early 2014 when state’s witness Luis Paz also retracted his testimony, which he said had been coerced by the CICIG.

For the next three years, the CICIG’s lawyers filed a stream of frivolous motions whose only effect was to keep the Valdés brothers unjustly confined. Finally, on May 11, 2017 Judge Mynor Moto said he would free the brothers within three months if prosecutors failed to offer proof of a crime.

With no proof forthcoming, Judge Moto on August 28 dismissed the case against the Valdés brothers for lack of evidence. The brothers were free, having spent more than seven years in jail for nothing at all. The justice ministry appealed, but in November 2017 the appeals court confirmed Moto’s ruling.

Some days after its appeal had failed, the CICIG announced it was bringing charges against Judge Moto for his actions in another case, in which he had also ruled against the CICIG.

Observations

The legal process was flawed from the beginning, as soon as the defendants were denied access to evidence that the prosecution claimed to have. Especially offensive was the CICIG’s use of an extreme tactic: expropriations of the defendants’ assets.

The violations of due process most notably included coercing imprisoned witnesses to give false testimony.

The CICIG filed a succession of empty motions to “eat up the clock” and keep the defendants languishing in prison.

The commission’s releasing a list of judges whom it called corrupt was an obvious act of intimidation against any judge who might be inclined to rule against it.

Thanks to diplomatic immunity, the CICIG commissioners could take any course they chose – no matter how abusive or nonsensical – knowing they would never be held accountable for their actions.

The justice ministry, however, can be held accountable. It is still under obligation to charge those of its own staff who broke the law while prosecuting the case.

Conclusion

Had the false-witness statements been an error, prosecutors would have withdrawn the charges. Instead, they delayed; they recused judges and bullied them; they kept the defendants in jail for years after the witnesses had recanted.

The CICIG, enjoying perfect impunity, used this case to remove presumption of innocence from Guatemala’s judicial system. With no correspondence to truth, the CICIG set itself up as the guiding authority on who is corrupt and who should go to jail – to the point that almost nobody in authority dares object.

The only way to avoid this judicial terrorism and prevent such abuses in the future is to bind the CICIG to a regime of constant oversight. Given that CICIG personnel are UN-backed diplomats, responsibility for this oversight belongs to the UN – which to date has failed in its duty.

Given the violations of law and justice that occurred in this case alone – a monstrosity over which every one of the CICIG commissioners presided – the president of Guatemala has ample motive, as well as the backing of law, to remove the CICIG at once and throw its personnel out of the country.

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