Image Source: StockSnap
November 2017
REGION: Western Hemisphere

Running out the Clock: How Guatemala’s Courts Could Doom the Fight against Impunity, produced by Human Rights Watch, describes how unjustifiable delays in judicial proceedings are undermining progress in Guatemala’s fight against abuses of power. The report identifies two due process protections, amparos and recusals, as specific instruments of delay, discusses the means by which these procedures become so problematic, and describes several cases that illustrate these issues. The report closes with recommendations to Guatemalan authorities.

For the last decade, the International Commission against Impunity in Guatemala (CICIG) has partnered with Guatemala’s Attorney General’s Office to investigate and prosecute particularly serious criminal cases threatening the rule of law that have emerged since Guatemala’s internal armed conflict ended in the 1990s. The report discusses, for example, various corruption-related charges against former President Otto Perez Molina and Vice President Roxana Baldetti, a former president of the Congress of the Republic of Guatemala, a former national police director, and several former defense ministry officials. Although these charges have been perceived as significant progress toward justice, many cases have not yet gone to trial due to issues with pretrial proceedings, and the report suggests a “serious risk they never will.” Interviews with numerous legal actors and a stringent consideration of the judicial proceedings led the authors to conclude that defense lawyers often prompt prolonged delays by filing numerous, often groundless, motions for amparo and recusal. These delays are drastically extended due to the time-consuming nature with which the courts manage the filing process, including reaching decisions, routinely taking more time than allowed under the law.

An amparo petition “is an extraordinary remedy enshrined in the Guatemalan Constitution that provides a protection of last resort when a person’s constitutional or legal rights have been or might be infringed by an authority,” and can be filed at any point, either prior to or during trial. Of the thousands of amparo petitions filed every year, the large majority are declared admissible for review, and most are ultimately rejected. Thousands of rejected petitions are appealed through the Constitutional Court, which nearly always upholds the original decision. A recusal petition requests the removal of a judge due to bias, conflict of interest, or other compromises to impartiality. For reasons outlined below, both types of petitions typically suspend judicial proceedings for long periods of time, even when not mandated by law.

Several practices were identified as contributing to the frequent and lengthy delays prompted by amparo and recusal petitions. First, judges fail to reject amparo petitions that do not meet admissibility requirements. While the law outlines requirements for the admissibility of these petitions, it does not specify that those not meeting the requirements are inadmissible. Although the court has the right to permanently suspend petitions that fail to meet the requirements, the large majority are still considered because judges can be held at fault for rejecting a petition in error. Further, in addition to various bureaucratic delays in the filing and processing of the petitions, judges rarely meet the deadlines for resolution, often taking six to 12 months for decisions that are established in the law to be made within a week or a month. Moreover, if a petition is granted, any proceedings the judge carried out during processing can be nullified. Because of this, many judges suspend proceedings while awaiting petition rulings, even when they are not required to do so. Making matter worse, when a pending motion is resolved, judges sometimes reschedule hearings for several months in the future. Finally, the report notes that judges and lawyers are not held accountable for their role in delays. While lawyers who file frivolous amparo petitions can be subjected to a fine, the amount is inconsequential, and non-payment appears to go unpunished. Sanctions for judges who fail to meet deadlines are also nonexistent.

In light of these challenges, the authors provide several recommendations to strengthen the judicial system’s fight against impunity. Specifically, they suggest that the Guatemalan Congress should reform the amparo law such that petitions are only admissible for review after the proceedings have concluded; that judges have explicit authority to dismiss petitions that fail to meet admissibility requirements; and that a reasonable and effective penalty system be implemented to sanction lawyers who abuse the petition process. Second, the authors recommend that the Constitutional Court should comply with mandated petition deadlines; establish guidelines for lower courts to determine admissibility of amparo petitions; ensure lower court judges continue with criminal proceedings during the processing of petitions unless mandated by law; and enforce reasonable and effective sanctions for lawyers who abuse the petition process. Finally, the authors recommend that the Supreme Court follow mandated deadlines for processing petition appeals; address the sources of bureaucratic delays; and ensure the Council on the Judicial Career imposes reasonable and effective sanctions on judges and other legal actors when necessary.

NOTE: This summary is produced by the Rule of Law Collaborative, not by the original author(s).

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