Translated from the ACOGUATE blog (http://acoguate.org/2015/09/07/criminalizacion-de-defensores-en-el-norte-de-huehuetenango/)
All mistakes due to translator error.
All mistakes due to translator error.
An analysis of the context in which criminalization takes place
Thus far this year, eight human rights and natural resources defenders in the north of Huehuetenango, who are accompanied by ACOGUATE, have found themselves deprived of their liberty in pre-trial detention.* In the case against Saúl Méndez and Rogelio Velázquez from Barillas, the public oral debate, which is being repeated, began on September 1, this time in Quetzaltenango. The open lawsuits against Francisco Juan Pedro (Chico Palas), Adalberto Villatoro (Don Tello), Arturo Pablo Juan, and Ermitaño López (Don Taño) from Barillas, and Domingo Baltazar y Rigoberto Juárez from Santa Eulalia, are now in a recess, though it is hoped that the public oral debate phase will start in the upcoming months. In none of the cases have the judges allowed the detainees to go free on bail.
Even though the prisoners' situations change constantly and require constant updating, they reflect the increase in criminalization of human rights defenders that has been observed over the course of the year in the northern region of Huehuetenango. This has been defined by a strategy that infringes upon a plurality of human rights vulnerable, as well as the rights of local peoples, in specific contexts.
Why and when do we talk about criminalization?
According to the Unit for the Protection of Human Rights Defenders in Guatemala (UDEFEGUA), it could be said that criminalization intensified (and became more sophisticated) as a strategy in the infringement and repression of human rights in Guatemala and as an attack on defenders in various regions of the country a little more than 10 years ago. In its 2010 report [1], UDEFEGUA mentions that “this systematization (discussing criminalization) got its start in 2004, because at that time the new pattern of attacks began with the systematic application of law against usurpation [of land], which was modified in 1997 to be used as a mechanism for the management of conflicts caused by the concentration of land, as well as to be used in criminal complaints by the state in the face of protest [2]." Later, they point out that in Guatemala “from 2004 until the present (then June 2010), criminal prosecutions have been started against 592 defenders [3].” What has been happening in the north of Huehuetenango, particularly since 2012 (though it did in fact start in 2008), shows that criminalization is not a new phenomenon, but rather that it has persisted as a strategy for repression of the people and social movements defending human rights.
We cannot forget that criminalization has been a tactic which has spread throughout Latin America in the past few years, in order to silence (and bring down) the diverse voices of social protest against the socioeconomic and political models imposed by their governments.[4] This has tended to get worse with the imposition of transnational extractive and energy projects, without the prior consent or participation of the local population. It should be mentioned that many of the entities (public or private) in charge of the development of these projects are active participants in the repression of social groups and locals that oppose the projects, that resist them, and that speak out against their negative effects, even though this generally implies violations of the right to self-determination by indigenous people and/or the right of indigenous people and rural workers (campesinos) to land and territory. By the same token, it also constitutes a threat to the environment (Mother Earth) and access to water for all. In sum, criminalization threatens the civil and political rights of defenders, including freedom of expression. The groups and people affected are led to turn to increasingly radical, although legitimate, forms of social protest in order to have their demands taken into account, when faced with repression and a lack of willingness to initiate a truly respectful dialogue on the part of the authorities and companies, which disregard the wishes of the people, ignore their identity, and destroy their means of subsistence (like maize, forests, beans, rivers, etc.) and their potential economic development through business (for example, in the case of Huehuetenango, coffee and cardamom). Moreover, indigenous people, have preserved and defended uses or “styles,” customs, and forms of social, political and judicial organization, which are age-old, but still valid, with their own vision of community well-being (buen vivir,** for example, in the face of developmentalism), as well as human and collective dignity, leading to incompatibilities with the aforementioned projects, especially in the Cuchumatanes Mountain region.
According to UDEFEGUA's data[5], since the beginning of the 2000's, land and territory defenders are the group that is most attacked through criminalization cases in the country; in second place are those who defend the rights of indigenous groups. These two sectors made up 70% of the cases of criminalization between 2004 and 2009.
Moreover, international human rights organizations recognize that “the objective of criminalization is to create fear, destroy reputations, weaken resistance, force opponents to dedicate time and resources to defend themselves and, finally, to justify the use of force against these opponents. After all, states and companies want to weaken and neutralize resistance to allow extractive projects to be realized on a grand scale[6].” Thus, criminalization is recognized as one of the most severe methods of attacking human rights defenders.
Therefore, the term “criminalization” is referred to in a broad sense to describe those cases in which the law is improperly used or threatened to be used against defenders, almost always in a criminal manner, with the state manipulating the application of different legal rulings, particularly in criminal rights law, and distorting the institutions charged with imparting justice or participating in its imposition.[7]
This includes false reports or questionable accusations against someone; issuing arrest warrants and beginning criminal investigations in a discretionary and premeditated way; proceeding to arbitrary or illegal detention; judging incidents individually without evidence, or making evidence up; presenting accusations that are disproportionate to the investigation, specifically against certain people and/or communities that are politically “marked” for their efforts due to the protection of personal or ideological interests, which are not connected to the proper use of impartial and speedy justice. In a more specific sense, the fact of starting criminal proceedings, is also known as the “judicialization” of social protest. This situation takes on its most severe form when it holds defenders criminally responsible and imposes sentences against them for crimes that they did not commit but which can be imputed to them. Nonetheless, there are very few cases where the Public Ministry (MP) has been able to get a sentence.[8]
In cases of criminalization, the state's accusatory abilities and the justice which is accordingly directed are not against people who have committed a crime, but rather against people or communities that, due to their activities and economic, social, political and cultural positions, confront the decisions and politics of the same governments persecuting them. In this situation, when these people are deprived of their liberty, they can be described as political prisoners.[9]
Cases Observed in 2015
Observation and accompaniment during public trials, as well as the testimonies of affected people and their defense lawyers, demonstrate that the cases opened in 2015 against human rights defenders from Barillas and Santa Eulalia fit within the phenomenon of criminalization. Thus, a brief descriptions of each of the criminal lawsuits currently open is essential.
The cases of criminalization of defenders in Huehuetenango, which ACOGUATE has been observing since 2013, but which have been taking place since 20008, are found in Santa Cruz Barillas, where there are the hydroelectric projects, Cambalam I and Cambalam II, and the company, Hidro Santa Cruz S.A., subsidiary of the Spanish Hidralia Energía, as well as in Santa Eulalia, where there is the company, 5M S.A., which is located in Finca San Luis and is also the subsidiary of the same Hidralia Energía. These projects are currently at a standstill, due to the events that occurred in the region[10] and the resistance of the communities that signed on along with other municipalities in resistance in the north of the department, including Santa Cruz Barillas, San Mateo Ixtatan, Santa Eulalia, San Pedro Soloma, San Juan Ixcoy, San Sebastian and San Rafael, among others. Including the last community referendum held in Malacatancito on August 2, twenty-nine of the department's thirty-two municipalities have demonstrated their rejection of mining, hydroelectric and oil projects and have declared themselves in favor of the defense of natural resources and territory through good faith community referenda. Nonetheless, there are more than 40 known permits, either valid or in process, for exploration and exploitation of natural resources.
Thus far this year, eight human rights and natural resources defenders in the north of Huehuetenango, who are accompanied by ACOGUATE, have found themselves deprived of their liberty in pre-trial detention.* In the case against Saúl Méndez and Rogelio Velázquez from Barillas, the public oral debate, which is being repeated, began on September 1, this time in Quetzaltenango. The open lawsuits against Francisco Juan Pedro (Chico Palas), Adalberto Villatoro (Don Tello), Arturo Pablo Juan, and Ermitaño López (Don Taño) from Barillas, and Domingo Baltazar y Rigoberto Juárez from Santa Eulalia, are now in a recess, though it is hoped that the public oral debate phase will start in the upcoming months. In none of the cases have the judges allowed the detainees to go free on bail.
Even though the prisoners' situations change constantly and require constant updating, they reflect the increase in criminalization of human rights defenders that has been observed over the course of the year in the northern region of Huehuetenango. This has been defined by a strategy that infringes upon a plurality of human rights vulnerable, as well as the rights of local peoples, in specific contexts.
Why and when do we talk about criminalization?
According to the Unit for the Protection of Human Rights Defenders in Guatemala (UDEFEGUA), it could be said that criminalization intensified (and became more sophisticated) as a strategy in the infringement and repression of human rights in Guatemala and as an attack on defenders in various regions of the country a little more than 10 years ago. In its 2010 report [1], UDEFEGUA mentions that “this systematization (discussing criminalization) got its start in 2004, because at that time the new pattern of attacks began with the systematic application of law against usurpation [of land], which was modified in 1997 to be used as a mechanism for the management of conflicts caused by the concentration of land, as well as to be used in criminal complaints by the state in the face of protest [2]." Later, they point out that in Guatemala “from 2004 until the present (then June 2010), criminal prosecutions have been started against 592 defenders [3].” What has been happening in the north of Huehuetenango, particularly since 2012 (though it did in fact start in 2008), shows that criminalization is not a new phenomenon, but rather that it has persisted as a strategy for repression of the people and social movements defending human rights.
We cannot forget that criminalization has been a tactic which has spread throughout Latin America in the past few years, in order to silence (and bring down) the diverse voices of social protest against the socioeconomic and political models imposed by their governments.[4] This has tended to get worse with the imposition of transnational extractive and energy projects, without the prior consent or participation of the local population. It should be mentioned that many of the entities (public or private) in charge of the development of these projects are active participants in the repression of social groups and locals that oppose the projects, that resist them, and that speak out against their negative effects, even though this generally implies violations of the right to self-determination by indigenous people and/or the right of indigenous people and rural workers (campesinos) to land and territory. By the same token, it also constitutes a threat to the environment (Mother Earth) and access to water for all. In sum, criminalization threatens the civil and political rights of defenders, including freedom of expression. The groups and people affected are led to turn to increasingly radical, although legitimate, forms of social protest in order to have their demands taken into account, when faced with repression and a lack of willingness to initiate a truly respectful dialogue on the part of the authorities and companies, which disregard the wishes of the people, ignore their identity, and destroy their means of subsistence (like maize, forests, beans, rivers, etc.) and their potential economic development through business (for example, in the case of Huehuetenango, coffee and cardamom). Moreover, indigenous people, have preserved and defended uses or “styles,” customs, and forms of social, political and judicial organization, which are age-old, but still valid, with their own vision of community well-being (buen vivir,** for example, in the face of developmentalism), as well as human and collective dignity, leading to incompatibilities with the aforementioned projects, especially in the Cuchumatanes Mountain region.
According to UDEFEGUA's data[5], since the beginning of the 2000's, land and territory defenders are the group that is most attacked through criminalization cases in the country; in second place are those who defend the rights of indigenous groups. These two sectors made up 70% of the cases of criminalization between 2004 and 2009.
Moreover, international human rights organizations recognize that “the objective of criminalization is to create fear, destroy reputations, weaken resistance, force opponents to dedicate time and resources to defend themselves and, finally, to justify the use of force against these opponents. After all, states and companies want to weaken and neutralize resistance to allow extractive projects to be realized on a grand scale[6].” Thus, criminalization is recognized as one of the most severe methods of attacking human rights defenders.
Therefore, the term “criminalization” is referred to in a broad sense to describe those cases in which the law is improperly used or threatened to be used against defenders, almost always in a criminal manner, with the state manipulating the application of different legal rulings, particularly in criminal rights law, and distorting the institutions charged with imparting justice or participating in its imposition.[7]
This includes false reports or questionable accusations against someone; issuing arrest warrants and beginning criminal investigations in a discretionary and premeditated way; proceeding to arbitrary or illegal detention; judging incidents individually without evidence, or making evidence up; presenting accusations that are disproportionate to the investigation, specifically against certain people and/or communities that are politically “marked” for their efforts due to the protection of personal or ideological interests, which are not connected to the proper use of impartial and speedy justice. In a more specific sense, the fact of starting criminal proceedings, is also known as the “judicialization” of social protest. This situation takes on its most severe form when it holds defenders criminally responsible and imposes sentences against them for crimes that they did not commit but which can be imputed to them. Nonetheless, there are very few cases where the Public Ministry (MP) has been able to get a sentence.[8]
In cases of criminalization, the state's accusatory abilities and the justice which is accordingly directed are not against people who have committed a crime, but rather against people or communities that, due to their activities and economic, social, political and cultural positions, confront the decisions and politics of the same governments persecuting them. In this situation, when these people are deprived of their liberty, they can be described as political prisoners.[9]
Cases Observed in 2015
Observation and accompaniment during public trials, as well as the testimonies of affected people and their defense lawyers, demonstrate that the cases opened in 2015 against human rights defenders from Barillas and Santa Eulalia fit within the phenomenon of criminalization. Thus, a brief descriptions of each of the criminal lawsuits currently open is essential.
The cases of criminalization of defenders in Huehuetenango, which ACOGUATE has been observing since 2013, but which have been taking place since 20008, are found in Santa Cruz Barillas, where there are the hydroelectric projects, Cambalam I and Cambalam II, and the company, Hidro Santa Cruz S.A., subsidiary of the Spanish Hidralia Energía, as well as in Santa Eulalia, where there is the company, 5M S.A., which is located in Finca San Luis and is also the subsidiary of the same Hidralia Energía. These projects are currently at a standstill, due to the events that occurred in the region[10] and the resistance of the communities that signed on along with other municipalities in resistance in the north of the department, including Santa Cruz Barillas, San Mateo Ixtatan, Santa Eulalia, San Pedro Soloma, San Juan Ixcoy, San Sebastian and San Rafael, among others. Including the last community referendum held in Malacatancito on August 2, twenty-nine of the department's thirty-two municipalities have demonstrated their rejection of mining, hydroelectric and oil projects and have declared themselves in favor of the defense of natural resources and territory through good faith community referenda. Nonetheless, there are more than 40 known permits, either valid or in process, for exploration and exploitation of natural resources.
Observed Cases
Saúl Méndez and Rogelio Velázquez, perhaps the most emblematic of the cases, have been prisoners (for the second time) since August 27, 2013. They are accused of having participated in a lynching, which occurred on August 19, 2010 in Barillas. Imprisoned in Huehuetenango's jail, their case is currently being tried before the Femicide Tribunal in Quetzaltenango, and a new sentence is expected for October 13.***
Learn More: Statement on second trial of political prisoners, Saúl and Rogelio (in Spanish)
Rigoberto Juárez and Domingo Baltazar, detainees in Zone 18 prison in the capital, were captured last March 24, 2015 and currently face charges for illegal detention, coercion, and instigation to commit crime. Previously, the MP had accused them of robbery or kidnapping, assault, attempted murder and obstruction of justice, but the presiding judge of High Risk Court A (in Guatemala City) dismissed the latter charges.[11] They are accused of having participated in the events that took place on January 18 and 20, 2015, in which a group of people supposedly retained personnel from the Judicial Administrative Center (CAJ) of Santa Eulalia. They also face a separate case in court in Santa Eulalia for their supposed participation, along with a group of citizens, for the illegal detention of employees from the company 5M S.A., on December 2 and 9, 2015.
Francisco Juan Pedro (Chico Palas), Adalberto Villatoro (Don Tello), and Arturo Pablo Juan (Profe Arturo) were imprisoned on February 26, 2015, where they were first accused of the crimes of assault, instigation to commit crime, and illegal meetings and/or protests. The charges of robbery or kidnapping were later added on to the original charges. Prisoners in the capital's Zone 18 jail, their case will be decided by High Risk Court A, according to the events that took place on April 22, 2013 in a place known as Poza Verde in Barillas. They have been accused of joining a group of people who, on that date, supposedly detained employees from the company Hidro Santa Cruz, S.A. for a couple of hours so that they would agree to stop working for the company. To these accusations, another has been added (which we will return to later) which will be disclosed before the Santa Eulalia court for incidents that took place on January 23, 2014.
Ermitaño López, captured on June 2, is the last of the defenders to be imprisoned up to this point.Ϯ He is accused of attempted murder, coercion, assault, instigation to commit crime, obstruction of justice, and robbery or kidnapping before the court in Santa Eulalia, which is located in the city of Huehuetenango. He is being kept in pre-trial detention in Huehuetenango. He is accused, along with Francisco Juan Pedro (Chico Palas), Adalberto Villatoro (Don Tello), Arturo Pablo Juan, and nine other defenders, of having participated in the illegal detention of CAJ employees during a trial in the Santa Eulalia Court, within the framework of the above mentioned case.
Saúl Méndez and Rogelio Velázquez, perhaps the most emblematic of the cases, have been prisoners (for the second time) since August 27, 2013. They are accused of having participated in a lynching, which occurred on August 19, 2010 in Barillas. Imprisoned in Huehuetenango's jail, their case is currently being tried before the Femicide Tribunal in Quetzaltenango, and a new sentence is expected for October 13.***
Learn More: Statement on second trial of political prisoners, Saúl and Rogelio (in Spanish)
Rigoberto Juárez and Domingo Baltazar, detainees in Zone 18 prison in the capital, were captured last March 24, 2015 and currently face charges for illegal detention, coercion, and instigation to commit crime. Previously, the MP had accused them of robbery or kidnapping, assault, attempted murder and obstruction of justice, but the presiding judge of High Risk Court A (in Guatemala City) dismissed the latter charges.[11] They are accused of having participated in the events that took place on January 18 and 20, 2015, in which a group of people supposedly retained personnel from the Judicial Administrative Center (CAJ) of Santa Eulalia. They also face a separate case in court in Santa Eulalia for their supposed participation, along with a group of citizens, for the illegal detention of employees from the company 5M S.A., on December 2 and 9, 2015.
Francisco Juan Pedro (Chico Palas), Adalberto Villatoro (Don Tello), and Arturo Pablo Juan (Profe Arturo) were imprisoned on February 26, 2015, where they were first accused of the crimes of assault, instigation to commit crime, and illegal meetings and/or protests. The charges of robbery or kidnapping were later added on to the original charges. Prisoners in the capital's Zone 18 jail, their case will be decided by High Risk Court A, according to the events that took place on April 22, 2013 in a place known as Poza Verde in Barillas. They have been accused of joining a group of people who, on that date, supposedly detained employees from the company Hidro Santa Cruz, S.A. for a couple of hours so that they would agree to stop working for the company. To these accusations, another has been added (which we will return to later) which will be disclosed before the Santa Eulalia court for incidents that took place on January 23, 2014.
Ermitaño López, captured on June 2, is the last of the defenders to be imprisoned up to this point.Ϯ He is accused of attempted murder, coercion, assault, instigation to commit crime, obstruction of justice, and robbery or kidnapping before the court in Santa Eulalia, which is located in the city of Huehuetenango. He is being kept in pre-trial detention in Huehuetenango. He is accused, along with Francisco Juan Pedro (Chico Palas), Adalberto Villatoro (Don Tello), Arturo Pablo Juan, and nine other defenders, of having participated in the illegal detention of CAJ employees during a trial in the Santa Eulalia Court, within the framework of the above mentioned case.
In all of these cases, the political prisoners have been called leaders who “direct” the actions, for which groups of citizens are actually responsible. Thus it is clear that, except in the case of Saúl Méndez and Rogelio Velázquez, at the beginning (2013 and 2014), the accusations came from employees of the hydroelectric companies, and that from 2014 and 2015 onward, its their own local authorities, in particular in Santa Eulalia, who present themselves as the injured parties.
Methods and Facets of Criminalization, According to the Observed Cases
One of the tactics used in the criminalization process is the delay of criminal proceedings. Thus, in the above mentioned cases, the right to arraignment within 24 hours after capture, which was established by trial law regarding pleas, was not respected. Rigoberto Juárez and Domingo Baltazar did not get to immediately bring their declaration before the judge, but rather had to wait more than two months in jail before being brought in. In other cases, the MP has asked the judges for extensions to complete their investigations, without presenting improved results after these new deadlines, thereby delaying the following stages of the trial.
Another resource is to accuse people of crimes so serious that they cannot be permitted to receive bail, and so that the sentences incurred are the highest the criminal code offers. Thus, in other cases, defenders were unjustly accused of terrorism[11][12], as in the lawsuits open against Ermitaño López, Rigoberto Juárez and Domingo Baltazar, as well as against Francisco Juan Pedro, Adalberto Villatoro and Arturo Pablo Juan, who have all been accused of the crime of “robbery and kidnapping,” which has an established sentence of 40 years in jail. We will discuss how the these criminal accusations has been applied in the cases in a later section.
In a column published by the Independent Media Center (CMI), Andrés Cabanas writes, “they [the defenders] are threatened, repressed and jailed, with a (formally) unappealable argument: the violation of the law. But the technical legal justification for the captures is delegitimized by the criminal record of illicit, arbitrary and irregular acts committed by the operators of justice[13].” An understanding of criminalization resides in the way in which the cases are placed before the authorities.
“Criminalization takes advantage of a simplistic and vague discourse; in this way it is very easy to accuse anyone of anything,” said one of the defense attorney leaving the trial. Nonetheless, in order to object to the arguments against the defendants, the attorneys put the MP's missing legal techniques out in public to be discovered, particularly the absence of elements that would permit them to establish “individual responsibility.” In other words, they irrefutably show the judge that the person identified before them committed a crime, but only according to the descriptions of criminal conduct in the penal code or by other laws. Without these elements of the laws, in place of a legal accusation, they have abstract allegations, suspicions, and deductions about what occurred in a place and time, as well as about the perpetrators of these incidents. This is essential, as the accusations are based in tense moments between members of the population, which occurred because of the social conflict in the region, but, according to the defense attorneys, “in not one single case has the MP been able to personally and directly link the detainees to the provocation, participation or instigation of the aforementioned events.” Likewise, some of the incidents that occurred do not constitute crimes in and of themselves, but are instead attempts to criminalize social protest.
In relation to this, the defense attorneys argue that the accusations are based on incidents called “crimes in crowds,” which is to say, that are committed by an indeterminate quantity of people. This leaves it to the MP to deduce that the detainees, being community leaders, necessarily “directed” the reported incidents, “without noting a specific conduct nor the elements of time, manner and place in which they supposedly committed the acts.”
Even worse, Domingo Baltazar, Rogelio Velázquez and Francisco Juan Pedro (Chico Palas), in their respective cases, categorically deny having even been in the location at the time of the incident. They have brought evidence that they were in other places. In several cases, even the victims themselves do not directly mention them in their statements.
With respect to Ermitaño López, Rigoberto Juárez and Domingo Baltazar, as well as Francisco Juan Pedro, Adalberto Villatoro and Arturo Pablo Juan, the defense notes that, surprisingly, “the formal proceedings of the complainants and other witnesses that the MP presents in its accusations, are exact copies of one another, paragraph after paragraph, as if each person had separately stated the exact same words to narrate what they had experienced.” Some lawyers have mentioned that this “copying and pasting” demonstrates “a total lack of objectivity and professionalism and serious arbitrariness” on the part of the MP's district attorneys participating in these processes.
According to the defense, as well as the accused parties themselves, the MP's district attorneys, the lawyers, and the hydroelectric companies use their openly recognized links to arrange accusations against those who oppose the projects, calling the MP's actions into question. Even more troubling are the actions of the MP's district attorney for human rights, whose job largely consists of safeguarding respect for due process, even though in all the cases open in Huehuetenango, as well as in Guatemala City (except that of Saúl and Rogelio), this entity is the same one accusing the human rights defenders. In Rigoberto Juárez and Domingo Baltazar's arraignment, their lawyer, Benito Morales, noted that the MP's district attorney of human rights had personally confessed to him that “he had orders from above to leave all those from Huehuetenango in jail.” In some of these trials, in its investigation of the region's social leaders, the MP has presented a “Report on the Criminal Structure in Huehuetenango – Social Conflict,” which was made by Victor Hugo Villatoro, a lawyer for the hydroelectric companies.
In their defense during their arraignments and trials, the criminalized defenders and their lawyers have identified “the state institutions' role as the direct instigators and agitators of social unrest, as well as in acts of violence against defenders, including threats and intimidation, even going to the extreme of physical assault and murder.” This last makes concrete reference to incidents that occurred on January 19 and 20, 2015 in Santa Eulalia, where, according to the incidents' witnesses and victims, the municipal mayor and people related to him provoked a confrontation, which ended in a murder, as well as physical and psychological damage to various people and the closure of the community radio of Santa Eulalia.
The people whom we call defenders work as mediators, peacemakers, negotiators, spokespeople and moral authorities, well-known by the communities and by other human rights organizations in Guatemala and from other countries. Moreover, in prior years, they have been interlocutors for their communities at negotiating tables, in which ex-president Otto Pérez Molina, the minister of defense, and COPREDEH (the Presidential Coordinating Commission of Executive Policy on Human Rights Matters) participated. In to this role, the Convergence for Human Rights mentioned that, “the companies maintain pressure so that non-violent leaders and those who have showed their face before the government to ask for respectful dialogue and the right to free, prior and informed consent are condemned in particular.”[14]
Besides the complaints against them, the Huehuetenango defenders have noted on various occasions in their cases that the incidents for which they have been accused were provoked and instigated by people linked to the hydroelectric companies Hidro Santa Cruz, S.A. in Barillas and the company 5M, S.A. in Santa Eulalia, as well as the public servants of their own municipality. As one of the defense lawyers noted, “these incidents and accusations have not been investigated by the MP, showing through their actions that they are neither impartial nor objective.”[15] Members of human rights organizations have noted that on various occasions, it is these companies who instigate violence and seek to benefit from it in order to control economic and even political power at the local level, in complicity with national authorities, who “prefer to defend and promote these projects, rather than protect and look after the population they govern.”[16]
Finally, the multicultural factor can not be put to the side when dealing with Q’anjob’al, Chuj, Poptí, Akateco, and Mam Mayan communities, mestizo (mixed race) groups and other peoples present in Huehuetenango. As Rigoberto Juárez explained in his arraignment, “peacefully and collectively asking (state) authorities to resolve the social unrest crisis to which their own people are exposed, starting now and as fast as possible, is a suitable way to avoid more serious and tragic consequences so that no one gets harmed. This is also in accordance with our people's traditional customs and ways for the resolution of our conflicts.” Thus, as his lawyer Benito Morales explained in his defense, if international norms, such as Convention 169 of the International Labor Organization, are respected, the incidents that occurred on March 24, 2014 and January 19 and 20, 2015 cannot be validly interpreted as the crimes of illegal detention, coercion, obstruction of criminal justice or instigation to commit crime, to which the MP had referred in his accusations.
The Role of the State in the Exploitation of Justice
To summarize, the criminalized defenders and their lawyers have noted the following aspects at different times, demonstrating the unjust actions of authorities against their own people:
In the MP's actions:
- A lack of objectivity in their role investigating crimes, as well as arbitrariness and partiality
- The absence of investigations when defenders and organized populations present incident reports, including for events of extreme gravity, such as murder, serious assaults, public threats and instigation to commit crimes on the part of the state authorities, such as in the case of Santa Eulalia on the days of January 19 and 20, 2015
- A serious shortage in arguments presented by the district attorneys during trials
- When the initial accusations have to do with crimes categorized as misdemeanors, the inclusion or attempt to add more serious crimes after the fact, such as robbery or kidnapping
- Various attempts to put off and slow down the open judicial processes
- Despite sometimes noting their disagreement with the MP's arguments, including dismissing parts of the work from their investigations during the trials, finally accepting and conceding to the MP's requests to present them
- On various occasions, the judges have opted to recuse themselves from trying cases.
- They maintain the charges of robbery or kidnapping when bringing the detainees into the process, ignoring the arguments and evidence brought by the defense
- They have refused to allow them to go free on bail, even when the crimes are misdemeanors, as in the case of Domingo Baltazar and Rigoberto Juárez. In a trial before the Supreme Court of Justice, the MP requested that the Huehuetenango cases “not be put before Judge Miguel Angel Galvez in High Risk Court B, because he would let all the defenders go free before sending them to trial,” so as to better ensure that they would be sent Court A, with Judge Carol Patricia Flores in charge.
The Most Important Effects of the Attacks on Human Rights Defense
One of the most worrisome aspects of criminalization is increases the vulnerability of fundamental rights in the long term. As the tales of the different people who have experienced it show, criminalization has to deal with an assault on physical liberty and the dignity that is expected to last for a long time and leave long-term effects at the individual and community level. In this sense, it is worth highlighting the criminalization of more than 60 people in the north of Huehuetenango, who know that they have active warrants out against them, in cases that follow the same patterns as those of the people in jail now. This also affects them in their entirety, their tranquility, their free movement and their dignity.
In this way, judicial persecution of a defender for political reasons equates to criminalizing human rights defense and, in general, their right to express an opinion. In some cases, people try to resort to criminalization for personal revenge (Santa Eulalia), but in every case, it serves to discourage unity between people and organizations in the diverse expression of human rights defense.
Effects on the People [17][18]
The people affected, directly or indirectly, by criminalization have described the most present effects in the following manner:
- Exposure to risk in pre-trial detention centers, such as fights, threats and extortion.
In economic matters: lost income, legal expenses, payment for the “talacha” (the bribe which is paid in some jails to avoid being beaten), transfers, criminal trials due to public accusations, etc. - The people with arrest warrants against them lose complete liberty of movement, due to the risk of being detained when outside their places of residence. They also fear that for the simple fact of wanting to fight back using the judicial system to hear their cases, they will not be heard listened to and will find themselves in a state of total defenselessness, as happened to their currently imprisoned colleagues
- There are people who, since the incidents on January 19 and 20, 2015 in Santa Eulalia, do not dare to leave their communities or even go to neighboring cities, for fear that the violent actions of that night could happen again at any time. Witnesses and victims note that during that night and the following morning, dozens of citizens, who were being pursued by attackers led by the very mayor of Santa Eulalia, had to flee to the mountains to escape being beaten or killed, in accordance with publicly stated threats.
- Psychological effects, such as stress, depression and anxiety, among others
- It is hard to express just how precious liberty is to a person and what being imprisoned mean, without having been unjustly imprisoned, a situation which does not allow for patience. One of the people currently detained expressed it as follows: “Being here, an hour is a day, a day is a week, a month is a year, and while time passes, I continue getting worn down.”
- Regarding family and loved ones, there are cases where people feel abandonment, loneliness, and stress.
- Concrete effects for wives, friends and children: a lack of understanding about what will happen with small children; leaving school to cover family wages; vulnerability to threats, blackmail and extortion; and criticisms, misinformation, anxiousness and impatience.
- Effects of being transferred and with their trials brought before the High Risk system in the capital and, for the families, difficulties in supporting them during their hearings. Under the conditions of transfers, for example, on July 16, Domingo Baltazar and Rigoberto Juárez were transferred from the capital to Huehuetenango in a journey that lasted 35 hours; another journey on August 7 lasted more than 18 hours. During this time, they were exposed to the open air in the back of the patrol truck, dealing with rain, cold, thirst, thunder and exposure to the sun, as well as being knocked against the vehicle when they moved.
- Career effects (such as the loss of their jobs and their working reputation)
- With respect to their physical health, the detainees have reported illnesses and problems with medical services in the public health center (poor service) or private clinics (excessively expensive). Moreover, they note a serious shortage in the water supply, such as in the Huehuetenango pre-trial detention center, where they receive undrinkable water every five days. Due to the stress caused by these situations and conditions in jail, some show signs of gastritis, diabetes, minor injuries, and ailments that go untreated and uncared for, causing more complications than if they were free.
- With criminalization, people are discredited in their social, communitary and media environment, as well as stripped of their role in society
- Finally, one family member described the human rights situation in the country as a “triangle of fear, silence and isolation, which leads to immobilization.” That is how they express their fear of talking about the causes of their struggles, as well as the violation of their individual and collective human rights.
Community Effects
The effects are multidimensional and, for defenders, influence them personally as much as in their communities:
- The people who have been seen involved in these cases have expressed that, in great measure, criminalization causes despair and a sense of impotency for the prisoners, the pursued and their families. Combine with this, feelings of solidarity which had characterized the united, well-organized people of the towns, such as Santa Cruz Barillas and Santa Eulalia, can be made fragile and their morale can be weakened. Social organizations recognize that, as part of the strategy designed by the companies, the internal division is one of the greatest enemies and requires a lot of effort to be prevented an contained. Thus, they put in a lot of effort to continue with their forms of organization, communication and action, but they say they cannot stop fearing that some member will lose the historical perspective of solidarity through which they identify themselves as a people and which allows them to continue advancing collectively.
- Even though the criminalization from which they have suffered as a community for many years has provoked even more vigorous reactions of struggle and resistance, it also brings “voices of loneliness and anguish,” which all human being experiences in the face of serious offense, and for the fact of being attacked by the government and now by people with so many resources, such as the owners of transnational projects.
- Currently the northern region of Huehuetenango in general is a target for stigmatization and defamation made up by their own state authorities and the media, who accuse the population of making up “anarchic” communities, and being “rowdy,” “violent” and “ungovernable.” Nonetheless, daily life, in families, schools, businesses and basic services, adheres to the same fluctuations as in the rest of the country, particularly in the main municipalities, such as Barillas and Santa Eulalia But evidently, there exists a latent risk that intra-community violence will increase, especially thanks to limited democratic legitimacy, deficient local authorities and new intentions of imposing hydroelectric projects. It can be deduced from this last that the price of land is increasing, resulting in agrarian conflicts, which can be taken advantage of in order to co-opt and bribe other social groups.
- The central debate is distorted so that the communities and defenders, who have been working for years, have to deal with the immediately imminent situation, which is directly provoked by criminalization. For example, they feel a lot of embarrassment about only talking about “their current situation in jail,” and that the energy and resources do not exist to deal with topics like the debate against development culture and its fallacies , which brings these types of energy and extractive development projects with it, driven by the governing parties in Guatemala as well as international financial organizations, like the World Bank, and by transnational corporations.
- Collective reactions that are becoming increasingly radical cannot be rejected out of hand. The expression of weariness [with their struggle] are unending. The communities will not give themselves up as vanquished, and therefore they quite clearly express their proposals, demands and rights about what they want for their families, for their territories and for their country. However, they confirm that the paths for dialogue and democratic spaces are being closed to them. Thus, the statement published on March 27, 2015 by the PDH (the Attorney General's Office for Human Rights) regarding the detention of Domingo Baltazar and Rigoberto Juárez, stated that “among other causes, the absence of types of intercultural dialogue processes is a factor that unleashes social conflicts.”[19][20] In the ideal definition, human rights are a historical synthesis of universal social acceptance.
Nonetheless, Defense Continues
Despite everything, the criminalization of defenders and leaders also motivates community processes to consolidate their solidarity with the political prisoners, in defense of human rights and in resistance to those transnational projects that violate them.
Likewise, various initiatives exist to coordinate between many organizations, networks and human rights defenders in the country. This includes, youth groups beginning to express themselves on the subject in creative ways; support groups especially dedicated to some of the cases mentioned above; observation in the trials on the part of authorized diplomatic corps in Guatemala; solidarity campaigns at the national and international levels, on the part of civil organizations; and many more examples.
All of these initiatives are social manifestations that maintain public attention on these cases, recognizing criminalization of defenders as yet another facet of the networks of corruption that exist in the country. This democratic and peaceful counterwight to abuses and violations of human rights is the reason for the recognition of human rights in a democratic regime. By the same token, the right to due process, as a fundamental right, is the principal responsibility of institutions of the state. Nonetheless, paraphrasing the lawyer Benito Morales, the vicious circle observed in the last few years in Huehuetenango and other regions of the country, between social unrest and criminalization will be completely resolved as soon as judicial pluralism that respects the right to the indigenous peoples of Guatemala's autonomy is recognized and put in place.
*Since the original piece was written, another defender, Pedro Ovidio Toledo, has been arrested, bringing the total to nine.
[1] Second Part, “Criminalización 2004-2009”, in “Criminalización, una forma de paralizar y debilitar la respuesta social”, Udefegua, 2010. Pages 9 and after. Accessible on line (in Spanish): http://www.ghrc-usa.org/Programs/HumanRightsDefenders/informe_udefegua_semestral.pdf
[2] Ibid, page 3
[3] Ibid.
[4] From many studies and reports on the topic, but to name a few other academic spaces for those that are "normally" cited, one can read from the Center for Freedom of Expression and Access to Information [Centro de Estudios en Libertad de Expresión y Acceso a la Información (CELE)] from the Faculty of Law at the University of Palermo, financed by the Open Society Institute. Ed. Universidad de Palermo, 2010. Accessible on line (in Spanish): http://www.palermo.edu/cele/pdf/LIBRO_BERTONI_COMPLETO.pdf
** Buen vivir is a “community-centric, ecologically-balanced and culturally-sensitive” social movement and economic system.
[5] Udefegua 2010. Page 15.
[6] “The criminalization of social protest in turn with extractive industries in Latin America [La criminalización de la protesta social en torno a la industria extractiva en América Latina],” CIDSE, 2011. Accessible on line (in Spanish): http://www.cidse.org/publications/business-and-human-rights/download/35_643387d27335b86daa4602b5ae709725.html.
[7] For example, the MP and specialized district attornies, the judicial branch and the Constitutional Court, and finally the Penitential System and the Civil National Police.
[8] Udefegua (2010) found only one case of sentencing against a defender between 2004 y 2009, from 592 open criminal cases. Likewise, all the criminalized people since 2009 and especially since 2012 in the north of Huehuetenango were freed. All of the processes begun between 2014 and 2015 in this same region that are still open are, for the most part, in the intermediate phase as of September 2015.
[9] In one of the most remarked upon senses, some Latin American writers call it "the judicialization of politics," in cases where "governments criminalize those that they can not deal with in another manner. See "Is it Legitimate to Criminalize Social Protest? [¿Es legítima la criminalización de la protesta social?]”, (CELE, 2010. Page 18).
[10] In particular, we remember the lamentable murders of Andrés Francisco Miguel of Barillas, which occurred in May 2012, and of Daniel “Maya” Pedro Mateo of Santa Eualalia, which occurred in April 2013.
*** The sentence was finally given on October 28 and both men were found innocent, though they have yet to be released from jail.
[11] However, the MP appealed the decision, in hopes of restoring the accusation of robbery or kidnapping to the accusation. As of August, this appeal still was not been definitively resolved.
Ϯ As previously noted, since this piece was written, Pedro Ovidio Toledo was taken into custody and was subsequently released.
[12] Like those defenders of territory in Huehuetenango (and others in the country) that were accused in 2012.
[13] Andrés Cabanas, Memorial de Guatemala, “A Pact for Life [Un pacto por la vida]”, through CMI-G – March 26, 2015. Accessible online at: https://cmiguate.org/un-pacto-por-la-vida/
[14] Release from the Press for the Convergence of Human Rights {Prensa de la Convergencia por los Derechos Humanos] on March 30, 2014, “The Guatemalan State closes off spaces to Civil Society and Indigenous Peoples [El Estado de Guatemala cierra espacios a la sociedad civil y a los pueblos indígenas]”.
[15] Nonetheless, at the beginning of September, it was known that, by virtue of the acts that took place on January 19 and 20, 2015, the Supreme Court of Justice had approved two warrants against the Mayor of Santa Eulalia. Given that this man seeks to be re-elected in the coming elections on September 6, 2015, it is in the hands of the Supreme Electoral Tribunal to decide before September 3.
[16] Commentary from a person in Barillas during a visit by ACOGUATE in the region.
[17] The defense lawyer Benito Morales commented that "the modification of the crime's definition in article 201 of the Penal Code in 2009, when they added new paragraphs, left it so ambiguous that now everything fits in the definition of robbery or kidnapping." The lawyer added that it is not a crime that has historically been used against human rights defenders in Guatemala, but rather has more to do with the newly favored tendency to modify the definition of robbery or kidnapping the Penal Code.
The following paragraphs of the previous definition of Article 201 of the Penal Code, at the root of the approval of the Law to Strengthen Penal Persecution are: "...Likewise, in the commission of this crime, which deprives another person of their liberty or imminently threatens to deprive them of their liberty, independent of the time that said privation lasts, o that deprives them of their right to movement with a risk to their life or well-being, with the threat of physical, psychological or material harm, in whatever form or medium, will be sanctioned with prison for twenty (20) to forty (40) years and a fine of fifty thousand (50,000) to one hundred thousand (100,000) quetzales. This crime is considered to have been committed when the person is deprived of their individual liberty or when the person is at risk or imminent danger or finds themselves submitted to the will of those or are subject to those who have apprehended, captured, or illegally or illegitimately subjected them, by whatever means or form and in no case will extenuating circumstances be considered."... (Decree 17-73 of the Congress of the Republic of Guatemala. Penal Code. Article 201 and adherent paragraphs, May 7, 2009).
[18] Some of the effects that are highlighted here were mentioned by those affected or by some of the organizations that have provided psycho-social accompaniment in the region from this year onwards, such as ECAP and the ODHAG.
[19] Udefegua highlights the fact that it should be "taken into account that the human rights defenders are people that respect the law and usually report criminals, corrupt persons and other law-breakers, even though they are fundamentally in defense of economic, social and cultural rights." Op. Cit. Udefegua. 2010. P. 13.
[20] Press Release, PDH, March 27, 2015: "Facing the violation due process rights for two representatives of indigenous communities from the north of Huehuetenango, detained in Guatemala City."
[1] Second Part, “Criminalización 2004-2009”, in “Criminalización, una forma de paralizar y debilitar la respuesta social”, Udefegua, 2010. Pages 9 and after. Accessible on line (in Spanish): http://www.ghrc-usa.org/Programs/HumanRightsDefenders/informe_udefegua_semestral.pdf
[2] Ibid, page 3
[3] Ibid.
[4] From many studies and reports on the topic, but to name a few other academic spaces for those that are "normally" cited, one can read from the Center for Freedom of Expression and Access to Information [Centro de Estudios en Libertad de Expresión y Acceso a la Información (CELE)] from the Faculty of Law at the University of Palermo, financed by the Open Society Institute. Ed. Universidad de Palermo, 2010. Accessible on line (in Spanish): http://www.palermo.edu/cele/pdf/LIBRO_BERTONI_COMPLETO.pdf
** Buen vivir is a “community-centric, ecologically-balanced and culturally-sensitive” social movement and economic system.
[5] Udefegua 2010. Page 15.
[6] “The criminalization of social protest in turn with extractive industries in Latin America [La criminalización de la protesta social en torno a la industria extractiva en América Latina],” CIDSE, 2011. Accessible on line (in Spanish): http://www.cidse.org/publications/business-and-human-rights/download/35_643387d27335b86daa4602b5ae709725.html.
[7] For example, the MP and specialized district attornies, the judicial branch and the Constitutional Court, and finally the Penitential System and the Civil National Police.
[8] Udefegua (2010) found only one case of sentencing against a defender between 2004 y 2009, from 592 open criminal cases. Likewise, all the criminalized people since 2009 and especially since 2012 in the north of Huehuetenango were freed. All of the processes begun between 2014 and 2015 in this same region that are still open are, for the most part, in the intermediate phase as of September 2015.
[9] In one of the most remarked upon senses, some Latin American writers call it "the judicialization of politics," in cases where "governments criminalize those that they can not deal with in another manner. See "Is it Legitimate to Criminalize Social Protest? [¿Es legítima la criminalización de la protesta social?]”, (CELE, 2010. Page 18).
[10] In particular, we remember the lamentable murders of Andrés Francisco Miguel of Barillas, which occurred in May 2012, and of Daniel “Maya” Pedro Mateo of Santa Eualalia, which occurred in April 2013.
*** The sentence was finally given on October 28 and both men were found innocent, though they have yet to be released from jail.
[11] However, the MP appealed the decision, in hopes of restoring the accusation of robbery or kidnapping to the accusation. As of August, this appeal still was not been definitively resolved.
Ϯ As previously noted, since this piece was written, Pedro Ovidio Toledo was taken into custody and was subsequently released.
[12] Like those defenders of territory in Huehuetenango (and others in the country) that were accused in 2012.
[13] Andrés Cabanas, Memorial de Guatemala, “A Pact for Life [Un pacto por la vida]”, through CMI-G – March 26, 2015. Accessible online at: https://cmiguate.org/un-pacto-por-la-vida/
[14] Release from the Press for the Convergence of Human Rights {Prensa de la Convergencia por los Derechos Humanos] on March 30, 2014, “The Guatemalan State closes off spaces to Civil Society and Indigenous Peoples [El Estado de Guatemala cierra espacios a la sociedad civil y a los pueblos indígenas]”.
[15] Nonetheless, at the beginning of September, it was known that, by virtue of the acts that took place on January 19 and 20, 2015, the Supreme Court of Justice had approved two warrants against the Mayor of Santa Eulalia. Given that this man seeks to be re-elected in the coming elections on September 6, 2015, it is in the hands of the Supreme Electoral Tribunal to decide before September 3.
[16] Commentary from a person in Barillas during a visit by ACOGUATE in the region.
[17] The defense lawyer Benito Morales commented that "the modification of the crime's definition in article 201 of the Penal Code in 2009, when they added new paragraphs, left it so ambiguous that now everything fits in the definition of robbery or kidnapping." The lawyer added that it is not a crime that has historically been used against human rights defenders in Guatemala, but rather has more to do with the newly favored tendency to modify the definition of robbery or kidnapping the Penal Code.
The following paragraphs of the previous definition of Article 201 of the Penal Code, at the root of the approval of the Law to Strengthen Penal Persecution are: "...Likewise, in the commission of this crime, which deprives another person of their liberty or imminently threatens to deprive them of their liberty, independent of the time that said privation lasts, o that deprives them of their right to movement with a risk to their life or well-being, with the threat of physical, psychological or material harm, in whatever form or medium, will be sanctioned with prison for twenty (20) to forty (40) years and a fine of fifty thousand (50,000) to one hundred thousand (100,000) quetzales. This crime is considered to have been committed when the person is deprived of their individual liberty or when the person is at risk or imminent danger or finds themselves submitted to the will of those or are subject to those who have apprehended, captured, or illegally or illegitimately subjected them, by whatever means or form and in no case will extenuating circumstances be considered."... (Decree 17-73 of the Congress of the Republic of Guatemala. Penal Code. Article 201 and adherent paragraphs, May 7, 2009).
[18] Some of the effects that are highlighted here were mentioned by those affected or by some of the organizations that have provided psycho-social accompaniment in the region from this year onwards, such as ECAP and the ODHAG.
[19] Udefegua highlights the fact that it should be "taken into account that the human rights defenders are people that respect the law and usually report criminals, corrupt persons and other law-breakers, even though they are fundamentally in defense of economic, social and cultural rights." Op. Cit. Udefegua. 2010. P. 13.
[20] Press Release, PDH, March 27, 2015: "Facing the violation due process rights for two representatives of indigenous communities from the north of Huehuetenango, detained in Guatemala City."