Chronology
No country has a perfect justice system, and probably all are subject to some degree of pernicious manipulation. The Mack case in Guatemala stands witness to how the rights of victims, their families, and society continue to be denied by a dysfunctional system of justice long after a murder has been committed. This chronology shows why the CHR and others concerned with human rights must sometimes continue and extend their efforts for many years.
February 12, 1993—Court convicts and sentences Beteta Alvarez. Judge Carmen Ellgutter sentences Noél de Jesús Beteta Alvarez in criminal court (del Juzgado Tercero) to 25 years in prison (incommutable) for the murder of Myrna Mack and 5 additional years for damages/injuries (for an unrelated incident). The judge rejects the prosecution's petition to leave open the proceeding against the alleged "intellectual authors" of the crime, Beteta's superior officers, despite evidence introduced by the Office of the Ombudsman for Human Rights indicating that the killing was politically motivated. The prosecution names the alleged co-conspirators in the crime, three military officers—General (retired) Edgar Augusto Godoy Gaitán, Colonel Juan Valencia Osorio, Lieutenant Colonel Juan Guillermo Oliva Carrera—and Juan José del Cid, Juan José Larios, and one person identified only by the surname Charchal. The private prosecutor (Helen Mack) asserts that Beteta must have acted under orders given by his superior officers since he had no motive to murder Myrna Mack. The evidence suggests a surveillance and murder operation that would not have occurred without official sanction.
April 28, 1993—Appeals court forecloses prosecution of military officers. The Fourth Chamber of the Court of Appeals (Sala Cuarta de la Corte de
Apelaciones) confirms Beteta's sentence and upholds Judge Ellgutter's decision to foreclose further investigation on the grounds that there was insufficient evidence to implicate the three military officers in the murder. The private prosecutor files an appeal to the Supreme Court (la Corte Suprema de Justicia) in which she challenges the lower court's decision. Perhaps fearful of implicating senior military officers, the state prosecutor does not join the appeal.11
February 9, 1994—Supreme Court reversal permits investigation of Beteta's superior officers. The Supreme Court reverses the lower court's decision to foreclose further investigation, holding that the private prosecutor's right to investigate fully all possible suspects responsible for the murder of Myrna Mack has been violated. The Supreme Court orders a military investigation of Beteta's three superior officers. The court also orders an investigation of the three other individuals in a civil proceeding.12
March 10, 1994—Superior officers deny knowledge of the crime. Gen. Godoy, Col. Valencia, and Lt. Col. Oliva petition the Constitutional Court (la Corte Constitucional), the highest court in the land for constitutional issues. They claim that the Supreme Court acted illegally in ordering an investigation into their alleged involvement in the Mack murder. The officers deny any knowledge of the murder.
March 18, 1994—Supreme Court denies private prosecutor's attempt to obtain classified Guatemalan documents. In an effort to gain access to documentary evidence from the National Ministry of Defense and the Presidential High Command, the private prosecutor formally requests an injunction. The Supreme Court denies the request. The private prosecutor files an appeal to the Constitutional Court seeking reversal of the Supreme Court's ruling. The private prosecutor argues that the requested documents contain critical evidence to prove the complicity of the superior officers in the Myrna Mack murder.
July 1, 1994—Guatemalan National Congress adopts new Criminal Procedure Code. All criminal cases for which the opening of the trial (aperatura de juicio) has not yet occurred are now to be tried under a new code. (A judge orders a trial to open when both plaintiff and defendant are satisfied that all evidence needed has been introduced in the proceedings.) Because a trial has not yet occurred in the proceedings against Beteta's superior officers, they are to be prosecuted under the new Criminal Procedure Code (the original case against Beteta
was prosecuted under the old Criminal Procedure Code). This decision allows new evidence to be brought into the proceedings.13
October 18, 1994—Denial of access to classified documents is upheld on a technicality. The Constitutional Court denies the private prosecutor's appeal for access to classified government documents. The court bases its decision on the technical grounds that the Supreme Court did not possess the case file at the time of its ruling. The Constitutional Court holds that the correct channel through which to file the "Injunctive Relief of Attachment" was the Court of First Instance (la Corte de Primera Instancia), which had the case in its docket. The private prosecutor requests that the Constitutional Court review its decision.
December 6, 1994—Constitutional court denies officers' petition to annual proceedings. The Constitutional Court denies the petitions of Godoy, Valencia, and Oliva to annual the Supreme Court's February 9 decision, thereby clearing the way for the continuation of the investigation into their possible complicity in the Mack murder.
December 21, 1994—Denial of access to documents is sustained again. The Constitutional Court rejects the private prosecutor's request for clarification of its October 18 ruling, holding that the request lacks merit. This decision weakens the impact of the Constitutional Court's decision several weeks earlier that cleared the way for the investigation of the accused military officers. Without recourse to classified Guatemalan government documents, the prosecution faces serious difficulties in developing sufficient evidence to prosecute the three officers.
September 1995 — Public Ministry appoints a state prosecutor. After a 10-month delay, the Public Ministry appoints Mynor Alberto Melgar Valenzuela as state prosecutor for the case. Melgar begins an investigation under the new Criminal Procedure Code.
December 6, 1995 — Private prosecutor requests that the case be heard in a civilian, not military, court. The private prosecutor files a petition questioning the ruling to try the case in a military court, on the grounds that the crime was perpetrated against a civilian in a context outside of military authority. The presiding military judge denies the petition; the private prosecutor appeals.
March 1996 — Appeals court affirms that the case remains in military court. The investigation resumes in the military court system.
March 5, 1996 — Organization of American States (OAS) accepts the Mack case for review of a due process violation. The Inter-American Commission on Human Rights (IACHR) of the Organization of American States decides to re-
view the case. The IACHR usually requires that "remedies under domestic law must have been pursued and exhausted in accordance with generally recognized principles of international law" before the commission will review a case. However, the IACHR has determined that the private prosecutor has been denied "effective and real access" to domestic remedies. The Commission also describes "an unwarranted delay in the domestic proceedings" as evidenced by both the three and a half year lapse between the murder and the Supreme Court's order to open an investigation against the military officers who allegedly ordered the murder and the subsequent two years during which the case failed to advance beyond the investigative stage.
April 30, 1996 — State prosecutor seeks permission to obtain depositions from expatriates. The state prosecutor (Mynor Melgar) requests cooperation from Guatemalan judicial authorities to seek sworn statements from six witnesses, then residing in Canada, for submission as evidence. The witnesses have fled Guatemala after intimidation by unidentified individuals.
May 21, 1996 — Defense moves to dismiss state prosecutor. The defendants request that the state prosecutor be removed for improper handling of the case. The defendants specifically allege that the state prosecutor has publicly defamed the accused. The defense motion is denied.
June 6, 1996 — State prosecutor requests indictment of defendants. The state prosecutor petitions the judge to issue an indictment (auto de procesamiento) against the accused, based on the prosecution's findings that: the motive for Myrna Mack's murder was political; the act was carried out by agents of the Presidential High Command; and the order for her murder was transmitted along the chain of command within the Presidential High Command through the three military officers accused.
June 11, 1996 — Court indicts military officers. Judge Heriberto Guzman Muñoz of the Military Tribunal of the First Instance (el Juzgado Militar de Primera Instancia) issues the indictment against Gen. Godoy, Col. Valencia, and Lt. Col. Oliva as "the possible intellectual authors in the murder of Myrna Mack Chang." The private prosecutor petitions the court to deny bail for the officers; the judge denies this request. The officers remain at liberty providing they each pay bail of 50,000 quetzals (equivalent to approximately $8,000 U.S.) and agree to report to the court every other week (which they do).
July 1996 — Prosecution moves into the civilian judicial system. The National Congress abolishes the special tribunal (Fuero Militar ) for members of the military accused of committing crimes. As a result, the prosecution of the officers accused in the Mack case reverts to the civilian judicial system—the jurisdiction that the private prosecutor had argued from the start as being the most appropriate. The case is transferred to the Tribunal of First Instance in Criminal
Matters, Narco-trafficking, and Environmental Crimes (el Juzgado Primero de Primera Instancia Penal, Narcoactividad y Delitos contra el Medio Ambiente), with Judge Enio Vinicio Ventura Loyo presiding.
July 1996 — U.S. government releases some classified documents. As a result of the Intelligence Oversight Board's "Report of the Guatemala Review" (commissioned by President Clinton and issued June 28, 1996), the Central Intelligence Agency releases some documents relevant to the Mack case to the private prosecutor. Seemingly crucial sections of several of the documents have been redacted.14
July 30, 1996 — Judge Ventura Loyo annuls indictment and investigation. Judge Ventura Loyo abruptly terminates the investigative proceedings and vacates the indictment of the military officers on the grounds that their case should have been considered one and the same as that of Beteta and, therefore, should be tried under the old (1973) Criminal Procedure Code. Judge Ventura's action means that all evidence collected during the prior year of the open investigative phase under the new criminal code would be inadmissible: only evidence introduced in Beteta's trial would be admissible, and that body of evidence did not implicate the officers. Judge Ventura, who handles cases under the new (1994) Criminal Procedure Code, transfers the case to the First Tribunal of First Criminal Instance (el Juzgado Primero de Primera Instancia Penal), Judge Pais presiding, which is specifically charged to administer and hear cases under the old criminal code.
August 1996 — New presiding judge questions Ventura's ruling. Judge Pais questions the decision that his court have jurisdiction over the case and seeks to recuse himself from the case. Both the state and the private prosecutors independently file appeals claiming that due process has been violated by Judge Ventura's decisions and that the judge has not observed proper judicial procedure. Judge Pais transmits the appeals to a court of appeals (la Sala Tercera de la Corte de Apelaciones).
September 1996 — Appellate court rules prosecution's appeals irrelevant. On procedural grounds only, the Court of Appeals finds that Judge Ventura is competent to have made the decisions that he made and that his decisions cannot be reviewed.
October 15, 1996 — Supreme Court upholds annulment order, remands case to be heard under old Criminal Procedure Code. Despite the private prosecutor's various appeals, the Supreme Court upholds Judge Ventura's order to annul the investigation and try the case under the old criminal code. The Supreme Court also rejects Judge Pais' effort to recuse himself. The Supreme Court
notifies the private prosecutor of its decision after the time limit to file an appeal has expired.
November 12, 1996 — Court joins case against military officers with that of Beteta. Judge Pais joins the case against the three superior officers with that of Beteta and annuls all previous proceedings against the officers.
December 10, 1996 — Private prosecutor appeals the Supreme Court's annulment order to the Constitutional Court. The private prosecutor argues that the Supreme Court's decision violated her and Myrna Mack's fundamental right to a fair trial.
December 18, 1996 — Guatemalan National Congress approves an amnesty law. The Guatemalan National Congress approves the Law of National Reconciliation (Ley de Reconciliación Nacional), No. 145-96, which affords amnesty to individuals who committed political or common crimes in connection with the country's armed internal conflict. Excluded from receiving amnesty are people who cannot prove an objective link between the crime in question and the achievement of a political end.
January 6, 1997 — Military officers petition for amnesty. The three military officers accused in the case file for amnesty less than a month after the reconciliation law has been adopted.
February 6, 1997 — Court considers military officers ineligible for amnesty. The First Court of the First Instance finds the military officers' petition inadmissible for amnesty and does not agree to hear the case on its merits. The military officers appeal; the appeal becomes mired in procedural issues.
March 1997 — IACHR reviews the Mack case. The IACHR reviews progress to date in the Mack case. The Lawyers Committee for Human Rights submits a brief concluding that "procedural and other developments have endangered the very existence of the case" and that "the Guatemalan government has consistently failed to produce documentation potentially critical to the prosecution." The IACHR again refrains from either issuing a statement to the Guatemalan government or deciding to hear the case, in an apparent effort to give Guatemala a further opportunity to redress the lack of due process.
Spring 1997 — Military officers file second petition for amnesty. The court of appeals (la Sala Tercera de la Corte de Apelaciones) that is handling the officers' second amnesty petition also finds that the crime allegedly committed by the officers does not, by definition, fit within the parameters of the amnesty law. The officers again appeal, this time to the Supreme Court.
August 12, 1997 — Constitutional Court overturns the Supreme Court's annulment order and reinstates the indictment against the three military officers. The Constitutional Court reinstates the interrupted investigation under the
1994 Criminal Procedure Code. This decision reopens the proceedings as of July 1996, when Judge Ventura closed the investigation under the new Criminal Procedure Code. However, the Constitutional Court also rules that the defendants' appeals under the National Law of Reconciliation of 1996 should be heard on their merits. The officers' appeals under the amnesty law must be resolved before prosecution of the officers may continue.
September 1997—Supreme Court rules that the officers' amnesty appeal is irrelevant. The Supreme Court upholds the lower courts' ruling that the three military officers do not qualify for amnesty under the Law of National Reconciliation on the basis that the murder "had the characteristics of a political crime." The officers seek the last legal protection (called an amparo) available to them in the appeals system.
Current Status: March 1998 — After the three military officers exhaust all the appeals available to them in their amnesty cases and, if no appeal is reviewed favorably, the court will renew the criminal proceeding against them. At that point, an intermediary phase, dedicated to the collection of evidence, will begin. In the opinion of an attorney working on the case for the prosecution, the intermediary phase could last anywhere from 3 to 12 months. When a judge closes this phase, with the consent of the state prosecutor, the oral hearing begins.
