SECOND SEMESTER
NEWSLETTER
2018
CICIG - 11th ANNUAL REPORT The International Commission Against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG) released, as every year, its 11th Annual Report, which summarizes some of the Commission’s activities in compliance with its mandate. In this newsletter, we include a summary of the speeches that Commissioner Iván Velásquez and the Attorney General, María Consuelo Porras, gave in the event. The advances in investigation lines and litigation processes will be subsequently presented, as well as the projects promoted to strengthen the rule of law.
“These are difficult times, but there is a promising future on the horizon. I am sure that the Guatemalan people will know how to overcome adversity and continue their struggle to install a genuinely democratic Rule of Law.” “It is necessary to make new efforts to attain a constitutional reform on justice that opens spaces for judicial independence and the structure of legal bodies with the most suitable, capable and honest staff.” “As we move forward, the struggle against corruption and the structures that have captured and take advantage of the State deepens.” Commissioner Velásquez reiterated his commitment to continue supporting Guatemalan people in the fight against corruption and impunity.
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Promoting and fostering a law-abiding culture In her speech, Attorney General Consuelo Porras highlighted: “This report reflects the approach of different work areas that contribute to the improvement of the political system and therefore favor the democratic consolidation in the country.” “However, if we want these achievements to last, it is essential to promote and foster a law-abiding culture that changes the cultural patterns in society. It is a process that must be accompanied by the appropriate amendments to the national legislation, according to the needs and requirements of the local reality and, of course, by an independent and efficient justice system,”the Attorney General said. The Attorney General thanked the collaboration that her office receives from CICIG. “Today I would like to thank the International Commission against Impunity in Guatemala and each of its members and collaborators for their work and dedication throughout these years, which is palpable and clear in the report presented today,” she said. The Attorney General called on all sectors of society to face together the challenges as a country, with determination and hard work.
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CICIG and its results Guatemalan government sought the support of the United Nations and the international community to fight against Illegal Clandestine Security Apparatuses (Cuerpos Ilegales y Aparatos Clandestinos de Seguridad, CIACS). These structures co-opt the State by weakening its institutions and violating the human rights of Guatemalans while seeking illegal economic benefits and influence. In its 11 years of work, CICIG, together with the Attorney General’s Office, has achieved remarkable results: More than 60 structures were identified. More than 100 cases were presented. Currently, more than 680 people prosecuted; 60% were given alternative measures. More than 310 people convicted. Thirty-four legal reforms filed, including the Organized Crime Act, anti-corruption reforms on the Criminal Code, and the creation of Higher-Risk Courts. CICIG model is innovative because it supports local institutions while fulfilling its mandate. International experts work hand in hand with national prosecutors, transferring skills and best practices on a daily basis. Thus, the Commission has permanently worked on strengthening capacities, and it is the core of its work since its establishment. In this Eleventh Report, the International Commission against Impunity in Guatemala records its main achievements regarding the support to national institutions between September 2017 and September 2018. Its work is structured in two chapters, which correspond to the main aspects of its commission: the support to the Attorney General’s Office in the identification, investigation, and dismantling of CIACS, and the actions for strengthening the Rule of Law and preventing the recurrence of CIACS.
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INVESTIGATION AND STRATEGIC RESEARCH Several cases have been prosecuted in the following thematic areas between September 2017 and September 2018:
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LINE OF INVESTIGATION ADMINISTRATIVE CORRUPTION
‘PANDORABOX’ CASE
CORRUPTION CASE IN THE MUNICIPALITIES OF HUEHUETENANGO AND TOTONICAPÁN A corruption network that operated in the municipalities of Huehuetenango and Totonicapán was dismantled. Former mayors and municipal employees, as well as owners of construction companies, participated in this network between 2008 and 2009. Evidence showed that more than Q25 million were defrauded. Fifteen defendants were bound over for trial in this case.
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On October 5, 2017, the results of an investigation revealed the cooptation of the Prison System and the use of public funds of the Municipality of Guatemala to finance political campaign expenses. The investigation established that the former Minister of the Interior, Héctor Mauricio López Bonilla, gave enough power to the inmate Byron Lima Oliva (deceased) to appoint the staff of the Prison System, a decision that should only correspond to a government employee. Thirteen defendants were accused, and the Attorney General’s Office (Ministerio Público, MP) and CICIG requested, in the intermediate hearing, that they will be bound over for trial. This hearing will continue on January 31, 2019.
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‘CORRUPTION IN QUETZALTENANGO’ CASE An organized criminal structure that stole public funds of the municipality of Quetzaltenango by manipulating the process of awarding contracts was dismantled. Jorge Rolando Barrientos Pellecer, former mayor of Quetzaltenango, led this structure between 2004 and 2012; he implemented a strategy to award more than 122 municipal contracts to certain entrepreneurs fraudulently and defrauded more than 72 million quetzals. Fourteen defendants were bound over for trial in December 2018, including former mayor Jorge Barrientos.
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| INVESTIGATION AND STRATEGIC RESEARCH
‘TRANSURBANO’ CASE
‘INFLUENCE PEDDLING’ CASE A complaint was filed in the Tenth Criminal Court against Juan Milton Guillermo Molina Botrán for the crime of active bribery. This case came up after discovering a criminal organization made up of SAT officials and other individuals, who collected money from entrepreneurs to irregularly process their tax credit files. Twenty-two people were charged in this case.
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‘CONSTRUCTION AND CORRUPTION’ CASE (PHASE III)
‘ODEBRECHT’ CASE
A criminal structure under the direction of the then Minister of Communications, Alejandro Jorge Sinibaldi Aparicio, was identified. Mr. Sinibaldi collected kickbacks ranging from 5 to 15%, in exchange for the awarding of contracts. One of the contractors was Constructora Norberto Odebrecht. Five people were accused, and another defendant was sentenced in this case.
Other types of bribes collected by the high-level structure, under the leadership of Alejandro Sinibaldi, former Minister of Communications, were identified. The payments made abroad (through off-shore companies) simulated advisory contracts or loans; payments for consulting services; payments of bribes for illegal campaign financing, and procurement of goods. Thirteen people were charged for this case.
A series of anomalies was revealed in the implementation of the prepaid system for the units of Urban Transport, through which the Guatemalan State was defrauded for approximately Q270 million. The Council of Ministers approved Government Agreement No. 1032009, which transferred all the responsibility for the execution of this amount to the Urban Bus Operators’ Association (Asociación de Autobuses Urbanos, AEAU). Thirteen persons were bound over for trial. The Attorney General’s Office recently filed a claim in the Eleventh Criminal Court against eight suspects accused of several crimes.
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| INVESTIGATION AND STRATEGIC RESEARCH
‘BUSINESS IN THE MILITARY INDUSTRY’ CASE
‘SECURITY AND TRANSPORT’ CASE In 2008-2009, representatives of the Urban Bus Operators’ Association proposed to the officials of Alvaro Colom’s government to implement a security system for Transurbano. This security system would include a subsidy provided by the government to the AEAU. The State of Guatemala allocated Q.80.1 million for this project, and the investigation established that the criminal structure took approximately Q.13.0 million. Eight defendants were bound over for trial in this case.
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‘IGSS AMBULANCES’ CASE (Phase II)
In 2017, this case allowed the dismantling of a structure that irregularly awarded the procurement of goods and services for amounts between Q880,000.00 and more than Q240 million. In 2018, more in-depth investigations established the participation of several persons including officials, business representatives, and other individuals.
‘CADASTRAL INFORMATION REGISTRY’ CASE
More than 50 fake jobs were created between 2012 and 2015. So far, the financial loss is assessed at more than 4 million quetzals. Former vice-president of the Republic, Roxana Baldetti, and people close to her took control of this institution. Two defendants were bound over for trial to date, and the rest of the accused are still in the initial hearing phase.
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A criminal group operated within the Military Industry to defraud millions of quetzals from the State of Guatemala. Sales commissions for more than 23.4 and riddled with irregularities were paid to public institutions. On December 27, 2018, the Seventh Criminal Court sentenced seven entrepreneurs to three and four years of commutable prison. They took responsibility for having committed the crimes of active bribery and embezzlement. Five retired militaries are still pending to face trial.
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LINE OF INVESTIGATION CORRUPTION IN THE ADMINISTRATION OF JUSTICE
‘MANIPULATION OF JUSTICE’ CASE
‘PARALLEL COMMISSIONS’ CASE The existence of a structure acting parallelly to the Nominating Commissions for the selection of the magistrates of the Supreme Court of Justice and the Courts of Appeals was exposed. Its goal was to influence the appointment of the highest authorities of the country’s judiciary. Three defendants were bound over for trial in this case.
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José Armando Melgar Moreno, the father of military officer Erick Fernando Melgar Padilla, was allegedly murdered on December 9, 2012, for reasons related to land disputes. Subsequently, in April 2016, a complaint was filed with CICIG against Erick Melgar Padilla and the former Prosecutor Rony Elías López Jerez, among others, for the manipulation of José Armando Melgar Moreno’s murder case. Recently, the judge Miguel Ángel Gálvez ruled that the military Erick Melgar Padilla does not have immunity. Four defendants were bound over for trial in this case.
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LINE OF INVESTIGATION CORRUPTION IN CONGRESS
‘FORMER MEMBER OF CONGRESS MARIO RIVERA’ CASE The investigation of the former member of Congress Mario Israel Rivera Cabrera is added to several investigations carried out in recent years against members of Congress. It was established that between 2004 and 2015, Mr. Rivera received more than Q12.4 million from state contractors. The money was used for the purchase of vehicles, construction of houses and payment of loans, among others. Also, evidence was presented of his attempt to manipulate the truth and undermine the investigation against him, producing false documents. Through an abbreviated procedure, the Fifth Criminal Court condemned former congressman Jorge Arévalo Valdez to five years of commutable prison. He declared himself guilty of aiding and abetting and falsehood.
‘ILLEGAL CAMPAIGN CONTRIBUTIONS TO FCNNACIÓN PARTY’ CASE The second phase of the investigation established that an illegal mechanism had been created to manage the payment of scrutineers and advertising material of the FCN-Nación party during the 2015 elections through the company Novaservicios, S.A, which was used for fundraising, to receive payments for scrutineers, and the distribution of funds. The third phase of the investigation was revealed in May 2018, which suggests that the party FCN-Nación received contributions from a group of entrepreneurs. The prosecution presented a new indictment against the accused of the crime of unregistered campaign contributions. Seven defendants were bound over for trial in this case.
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STRENGTHENING THE RULE OF LAW TO PREVENT THE RECURRENCE OF CIACS The cases that CICIG investigated have highlighted the systemic and structural failures that allowed CIACS to commit crimes and capture the state. Therefore, the investigations are useful to identify and analyze the legal, institutional, budgetary and public policy weaknesses that demand actions from prevention andnon-repetition guarantee perspective. Thus, in compliance with its mandate and based on the information provided by the investigation of cases and in coordination with relevant institutions, CICIG supports the formulation and implementation of public policies that are appropriate to the national reality. The identification and approval of the legal and institutional reforms necessary for the prevention and eradication of CIACS, and strengthening of institutional capacities identified as critical to moving towards the elimination of CIACS are supported as well. Below is the description of the programs, projects, and activities that CICIG supports in its work to strengthen the Rule of Law.
LEGAL REFORMS: Legislation Against Impunity During the reference period, CICIG worked together with the civil society and justice institutions to draft technical proposals for legal reforms aimed at institutional strengthening and greater effectiveness and efficiency of the justice system. For example, draft reforms to the Code of Criminal Procedure were prepared concerning acceptance of charges and pre-trial detention. The legislative agenda has also been monitored through the Justice Network.
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A discussion process began in March of this year on the proposed reforms to the Code of Criminal Procedure concerning pre-trial detention. A technical board composed of the Attorney General’s Office (Ministerio Público, MP), the International Commission against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG), the Judiciary, the Criminal Public Defense Institute, and the Human Rights Ombudsman, and based on international standards relating to the rights of defendants, updates the regulations, the criminal process, and overcomes the tendencies to deprivation of liberty.
Cases are established in which the judge might consider a sentence of house arrest: illness, disability, maternity leave, and other personal circumstances.
The core content of the preliminary draft includes the following reforms:
The concept ‘danger of obstruction to ascertain the truth’ is transformed into ‘danger of justice obstruction,’ and the concept ‘alternative measure’ changes to ‘non-custodial coercion measure.’
Judicial independence prevails to determine the extent of coercion that is applicable and any decision on the matter must be based on four principles: reasonableness, suitability, necessity, and proportionality. The catalog of the non-custodial and custodial coercion measures is updated. The defendants’ incarceration and house arrest are classified under the latter.
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Establishment of a control unit for coercion measures that will gather useful information for the judge to decide on the control measures to apply, as well as monitoring their compliance; centralize the information of arrests and issue alerts about the terms of pre-trial detention. The victim’s and complementary prosecutor’s power to request the imposition of measures of coercion is legally established.
The obligation to end incarceration is reaffirmed when a procedural stage is complete or if the justice system fails to fulfill its obligations, except in those cases where the delay is attributable to delaying tactics by the defendant. This term is not counted as part of the preventive detention period if
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the defendant adopts delaying tactics. The possibility of establishing indefinite extensions to pre-trial detention is eliminated, and a single extension will be allowed only where essential because of the complexity of the case. A deadline is set for holding hearings to review coercive measures (three days upon request), a term that currently does not exist. The possibility of appealing the resolutions on measures of coercion that had been limited through the Constitutional Court (CC) jurisprudenceis expressly established. To expedite the investigation and comply with the deadlines, it empowers the MP to request information from individuals and legal entities without prior authorization from a competent judge, except in those cases where the diligence affects fundamental rights protected in the Constitution (for example, raids or wiretaps). The provisions listed recognize that the purpose of preventive detention is to ensure the presence of the defendant in the process, and under applicable international legal and regulatory provisions, the following determinations regarding pre-trial detention are ratified:
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It is not punitive but a precautionary measure. It must be aimed at achieving legitimate purposes that are reasonably related to the criminal process. It cannot become an anticipated sentence or be based on general o special preventive purposes attributable to the penalty. It must be based on sufficient evidentiary elements to reasonably assume that the person subjected to the process has participated in the wrongful act which is investigated. The suspicion must be based on specific facts, not conjecture or intuition. It is subject to periodic review. It should not be extended when the reasons for its adoption do not persist, so the authorities must periodically assess whether the causes of the measure and its necessity and proportionality still exist and if the term of detention has not exceeded the limits of the law and reason. Besides legal, it cannot be arbitrary. The law and its application must comply with a series of previously established requirements. The proposal aims to strengthen a law-abiding culture, typical of a rights-based and democratic rule of law, which addresses the situations of vulnerability fostered by the shortcomings of the justice system regarding preventive detention.
In August 2018, to formalize the support, a Letter of Inter-institutional Understanding was signed between the TSE and CICIG that establishes the cooperation parameters. Cooperation and technical assistance are limited to two specific aspects:
ILLEGAL ELECTORAL FINANCING: Accompaniment to the Supreme Electoral Court Attacking the illegal campaign contributions means directly attacking the source of corruption and cooptation of the Guatemalan state. Therefore, in 2013, CICIG identified the Illegal Campaign Contributions as one of its strategic priorities, a topic that has since been addressed comprehensively through the investigation of criminal cases, a thematic report, proposals for legal reforms and institutional strengthening activities. Since 2016, CICIG, together with Guatemalan organizations and partners, has supported the TSE in the definition of electoral financing control models, instruments, protocols, and, in particular, the implementation of the new Specialized Unit for the Control and Oversight of Political Organizations.
Strengthen and transfer skills and knowledge to the TSE. At this point, progress has been made with the design and implementation of a training program for TSE staff by CICIG, with the support of the Konrad Adenauer Foundation (KAS) in Guatemala. This program began in August with the participation of authorities of TSE, KAS and the Commissioner of CICIG. The inaugural lecture was given by the Head of the Political Parties Financing Department of the Supreme Electoral Court of Costa Rica. Assist the TSE in the implementation and follow-up of the Inter-institutional Coordination Mechanism for the exchange of information on the financing of political organizations established among TSE, SAT, SIB, SIT, and CGC. To date, it has technically supported the definition and approval of information exchange protocols.
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PROMOTION OF A LAWABIDING CULTURE CICIG, together with the Ministry of Education, the Ministry of the Interior and USAC’s School of Legal Sciences, continues its efforts to strengthen the Rule of Law and promote a law-abiding culture. This year, the project’s activities focused on the redesign of educational material from a multicultural and gender perspective, which will be used to train the trainers, who will later replicate these aspects in different areas causing a multiplier effect.
INTEGRATED JUSTICE SYSTEM CICIG has advised and accompanied the State institutions in the development of a computer platform called Integrated System of Justice (Sistema Integrado de Justicia, SIJ), which provides reliable and detailed information on the capabilities and functioning of the justice system in general. SIJ works as a panel regarding planning and harmonic allocation of resources between the Attorney General’s Office and the Judiciary, the National Institute of Forensic Sciences (Instituto Nacio-
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nal de Ciencias Forenses, INACIF) and the Criminal Public Defense Institute (Instituto de la Defensa Pública Penal). It responds to the need to improve coordination mechanisms among these institutions to reduce impunity indexes. This year, SIJ has provided expert advice to the MP and INACIF. A visit to the department of Alta Verapaz was planned to present data from that region and seek an exchange with the actors operating there.
COMMUNICATION AGAINST IMPUNITY The fight against corruption and impunity requires transparency and an active and informed population that exercises social auditing and promotes a Law-Abiding Culture. The media, and especially journalists, play a fundamental role in this task. To join this effort, in 2018, CICIG approved and published the document “CICIG Communication Policies and Practices” to formalize its communications. CICIG updated its website to have a multilingual approach and has reinforced the dissemination of its messages through social media such as
Twitter, Facebook, and Instagram. Finally, as part of efforts to promote mechanisms to combat corruption and impunity among the population, CICIG developed in Guatemala the “Investigative Journalism Manual” together with the office of the United Nations Office on Drugs and Crime (UNODC). CICIG reiterates its commitment to continue contributing to the construction of the Rule of Law and a law-abiding culture in Guatemala and, therefore, a more prosperous future for all its inhabitants. .
JUDICIAL OBSERVATORY OF THE CRIMINAL JUSTICE SYSTEM IN GUATEMALA The judiciary, Universidad de San Carlos de Guatemala (USAC), Universidad Rafael Landívar (URL), GIZ and CICIG sponsored this initiative to identify, through the study of completed processes, the significant needs or problems that exist in the criminal justice system to propose solutions and promote the effectiveness of the system.
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It seeks to provide decision makers with a public policy tool capable of generating objective, rigorous and reliable information on the flow of cases, contributing to improving the system as a whole.
STRENGTHENING JUSTICE FROM THE PERSPECTIVE OF EQUALITY BETWEEN MEN AND WOMEN CICIG deems it is essential to conceive and address the fight against impunity in a comprehensive, intersectoral, and gender-sensitive manner. It is essential that the differentiated impact that impunity and corruption have on the human rights of vulnerable groups, especially women, is analyzed and made visible when talking about the fight against impunity. With this objective in mind, in 2018, CICIG has presented and begun to implement its new 2018-2019 Plan for the Promotion of Gender Equality, which aims to mainstream the gender perspective in all the Commission’s work areas and its internal management system.
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EVENTS AND CAMPAIGN
INTERNATIONAL CONFERENCE “COMPARATIVE EXPERIENCES OF THE FIGHT AGAINST CORRUPTION AND IMPUNITY” The International Conference: “Comparative Experiences of the Fight against Corruption and Impunity” was held with the participation of different sectors of society. This conference was carried out within the CICIG Strengthening Project, with the support of the German Cooperation and implemented at the request of the Federal Ministry for Economic Cooperation and Development (BMZ) was held in November 2018. The purpose of the activity was to know the different experiences in Latin America regarding these two problems. The activity was developed in four discussion panels, with the participation of national and international guests, who addressed different issues related to the role played by the several actors of society in the fight against corruption and impunity.
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CITIZENS’ DIALOGUES Four citizens’ dialogues on Law-Abiding Culture and Justice in Guatemala were held in November 2018 in the departments of Quetzaltenango, Sololá, Quetzaltenango, and Zacapa, with the support of the German Technical Cooperation GIZ - through the CICIG Strengthening Program. These forums were promoted under the initiative of the Federal Ministry for Economic Cooperation and Development (BMZ), with the purpose of strengthening awareness, dissemination and information management regarding the strengthening justice and combating impunity in Guatemala.
CITIZENS CAMPAIGN: #YONOMEPRESTO Last November, The Citizens Campaign #YoNoMePresto was launched along with GIZ, Universidad de San Carlos and Universidad Rafael Landívar to raise public awareness on the importance of fighting corruption. The campaign became a national trend in social networks and was accompanied by radio spots, television and citizens spots where educational materials were shared on the importance of a law-abiding culture in Guatemala.
These regional forums were inaugurated with a message from the authorities of CICIG and the German Technical Cooperation Agency (GIZ) in Guatemala. The purpose of the citizens’ dialogues was to reflect on the importance of a law-abiding culture and the current situation of justice in the departments of this country.
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