Copyright (c) 1998 by the Southwestern University School of Law

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Copyright (c) 1998 by the Southwestern University School of Law

Southwestern Journal of Law and Trade in the Americas

Fall, 1998
5 Sw. J. of L. & Trade Am. 365
LENGTH: 32246 words


Steven E. Hendrix *
* Steven E. Hendrix is the Justice Sector Advisor to the Democracy Office in Guatemala for the U.S. Agency for International Development. He is an attorney licensed in Bolivia and the United States (Wisconsin, Washington D.C. and Pennsylvania). The author would like to thank Clifford H. Brown (USAID Legal Advisor) and Julie Ohara for their help in preparation of this article. The author would also like to thank the U.S. Agency for International Development for its support while drafting this document. The opinions expressed are those of only the author and do not necessarily represent the opinions of any other institution. This article was completed in May 1998.

... Impunity, corruption and citizen security are top concerns in nearly every day's headlines among the major papers in Guatemala. ... Corruption is endemic in Guatemala and permeates all levels of government. ... A newspaper editorial headline proclaims "Guatemala: Kidnapping Capital of the World." ... On June 11, 1997, Congress heard testimony from Interior Minister Rodolfo Mendoza and Defense Minister Julio Balconi to the effect that the Estado Mayor Presidencial (a military police force under the command of the President) was not involved in the disappearance of Juan Jose Cabrera Rodas, alias Mincho, during the capture of Rafael Augusto Baldizon Nuez (alias Comandante Isaias), accused of the kidnapping of Olga Alvarado de Novella. ... Draft Legislation Proposing Change in Criminal Procedure. ... On September 6, 1961, Sabastian Soler (an Argentine national) and Romeo Augusto de Leon (Guatemalan) and Benjamin Lemus Moran (Guatemalan) presented a draft reform for Criminal Procedure for Guatemala. ... While USAID has focused its technical assistance to the Government with a view toward making the justice system work in an efficient, transparent manner, MINUGUA has been collaborating with the same justice sector institutions to expand justice to areas of the country where no formal presence previously existed. ... Until 1995, USAID was the principal and lead donor assisting the Guatemalan government to reform its justice sector. ...  



Executive Summary

Impunity, corruption and citizen security are top concerns in nearly every day's headlines among the major papers in Guatemala. In 1994, Guatemala began a major overhaul of its Criminal Procedure Code in part to address these concerns, based on earlier Guatemalan drafts dating back to 1961.

The new Code is a first of its kind in Latin America. It does away with the inquisitorial system, a document-based system originally from French law, in favor of an oral process and a new adversarial system. Major features of the new Code are shortened pre-trial detentions, plea bargaining, introduction of evidence through oral proceedings, the presumption of innocence and a right to defense, a right to use one's native language, and changes in appeal processes. Most striking is the advancement of community understanding of and participation in the criminal justice system, due to the new oral process.

To promote justice at the local level and make the new Code operational, Guatemala has found new institutional will. It is taking steps to investigate, prosecute, convict, sentence and put in prison, persons committing crime. Already, some important, high profile criminal prosecutions have begun. New justice centers are providing [*366] increased access to justice at the community level in Zacapa, Quetzaltenango, Escuintla, Peten and Nebaj, and others are set to come on line. New and innovative training programs to improve the quality of judges, prosecutors and litigators are also being implemented for the first time.

Guatemala is at a unique point in its history: there is an open window for reform for the first time in forty years. The promise is great, but the risk of failure is similarly great. Guatemala will have to make strides to show tangible results in the short term to keep the recently-signed peace accords alive. Meanwhile, it will have to ensure that reform proceeds over the longer term: the current situation was not created over night, and will not be solved in the short term. On the contrary, the Government of Guatemala, along with international donor partners, will have to stay the course for a number of years to effect real change.

I. Introduction
Guatemala is the northernmost country in Central America with a population of over 10 million. It borders Mexico to the north, Belize and the Atlantic Ocean to the east, Honduras and El Salvador to the south and the Pacific Ocean to the west. The capital, Guatemala City, has a population of about two million. The economy is the largest in Central America, with a gross domestic product (GDP) of about $ 14.7 billion. n1 Roughly two thirds of Guatemalans live in poverty. n2 Indigenous people comprise about half the Guatemalan population. Illiteracy is high, running at 37 percent for males, 53 percent for females, and at least 80 percent among Mayan women, one of the highest rates for a population group in the hemisphere. About 90 percent of indigenous people are in poverty and 80 percent are in extreme poverty. Despite four percent annual gains in economic growth since 1986, Guatemala's rapid population growth has all but wiped this out, leaving per capita GDP at 12 percent below that achieved in 1980. n3

[*367] Business executives cite crime and insecurity as the principal economic problems facing the country. n4 Kidnapping has become a prospering, post-war industry. n5 Sales of car alarm systems have increased dramatically during the last three years due to the high level of car thefts and robberies. n6 In 1996, car theft was the most reported crime, making up over half of all crime reported in Guatemala. n7 Demand for personal safety and security products is expected to continue rising in [*368] the foreseeable future, with an estimated annual rate of growth of about 25 percent for the next three years. n8 In this context, the U.S. recently signed an agreement on stolen cars with Guatemala. n9 To summarize, Guatemala is experiencing a crime wave. n10

In 1997 and 1998, bank robberies exploded in Guatemala. n11 From January to September 1997, there were more assaults on banks than in the prior four years combined (1993-1996), creating a "wild west" atmosphere. n12 In 1997, there were at least fifty assaults on banks. n13 In 1996, there were only ten. From 1990 through 1996, there were fifty- seven. n14 According to the Interior Minister, many of these have been carried out by former military police officers. n15 Many of the same [*369] individuals involved in kidnappings are also involved in bank robberies. n16

Corruption is endemic in Guatemala and permeates all levels of government. n17 Despite the authority to create special narcotics courts (in the 1992 narcotics law) to help control narcotics-related corruption, the Supreme Court has yet to establish them. n18 U.S. Ambassador Donald Planty has claimed that judges accept payments in drugs from narco-traffickers. n19 Others accuse judges of accepting bribes in kidnapping cases. n20

Although there are basic laws that aim at combating corruption, there is a lack of enforcement and compliance. Companies may encounter corruption at any level of business, both in the private and [*370] public sector. n21 The President of the Supreme Court cites corruption as one of the major problems facing the Guatemalan justice system, including within the judicial branch. n22 Within the Bar Association, it is practically impossible to disbar a member for unethical or illegal conduct. n23 In part to respond to concerns of incompetence and corruption by police, a new police force - the National Civilian Police (PNC) - was created, modeled on the Spanish Guardia Civil model. n24 Still, within weeks, new complaints of corruption emerged under the new police structure, n25 threatening to undermine the war on impunity. n26

[*371] In 1994, corruption in the Customs Service alone totaled about Q12 billion, the equivalent of 14 percent of GNP and twice the annual budget of the Guatemalan Government. The sheer enormity of this theft, argued Jose Ruben Zamora, editor of El Periodico, is highly conducive to the preservation of a "culture of impunity." n27 Even the former Customs Director General, Ruben Alvarez Artiga, an ex-military Colonel, has been indicted for participating in tax fraud in the millions of quetzales. n28

A large contraband ring was dismantled in September 1996. It reached many parts of the military, National Police, Customs and Immigration. Though Guatemala's counter-narcotics programs were not directly involved, they were affected by the fall-out from the case through the dismissal of Vice Minister of Government Mario Rene Cifuentes and the third in command at the Treasury Police. Neither has been charged in connection with the case. n29

The criminal justice system will continue to have serious problems until something is done about the inadequate salaries. In 1997, judges received about Q5,660 per month and prosecutors about Q9,000 per month. n30 As then President of the Congress, Arabella Castro, noted, sports in Guatemala receive a higher national budget than the courts. n31 More than forty criminal court judges have threatened massive resignation if salaries are not increased. n32

Strong public concern about violence and criminality is shaping public policy. n33 In the famous kidnapping, rape and murder case of [*372] Beverly Sandoval, twenty-one suspects were detained, of which 90 percent were former military. n34 Other cases involve six ex-police officers who were charged with the kidnapping of a minor n35 and the 1996 kidnapping and murder of Isabel de Botran by the gang Los Pasaco, even when gang leader Guillermo Lopez Linares (alias El Negociador, or Fernando Palacios Luna) was captured. Linares subsequently walked out of jail in a police uniform in obvious coordination with outside help. n36 In yet another case, the Vendors Committee for the Christmas Fair charged that Treasury Police (Guardia de Hacienda) were involved in a scheme to steal christmas trees. n37 Similarly, police are accused of stealing cars being held as evidence or recovered from others as stolen property. n38 Such cases give the impression that the military and government are part of the cause of crime, rather than its solution. n39 This frustration is evidenced in popular phrases [*373] such as "The Police take longer to catch the criminals than the Courts do in letting them free," or "The criminals enter one door and exit the other." n40

To underscore this point, a recent survey documented the widely held belief among Guatemalans that the Guatemalan justice system favors some groups more than others, undermining the public's confidence in the fairness of the justice process. n41 In a specific survey in Quetzaltenango, a more indigenous population, citizens believed the system favored the non-indigenous (Ladinos) over the indigenous population, and the rich and powerful over the rest of the public. n42

Recent public opinion polls show discontent with the security situation in the country. In one poll conducted during the last week in May and the first week in June, 1997, 98.8 percent claimed they felt "insecure." More than a third of those, 35.4 percent, attributed this insecurity to the inadequate abilities of the Interior Ministry. Only 1.2 percent felt "secure." n43 A newspaper editorial headline proclaims "Guatemala: Kidnapping Capital of the World." n44 Attacks on American citizens have also put Guatemala's security situation into international papers. n45

Judges themselves feel insecure. n46 For example, Judge Olegario Labbe Morales began receiving death threats after his involvement in [*374] the case of ex-military officer Candido Noriega Estrada. n47 That same judge was later fired, after letting Noriega free of 156 criminal charges. n48 In a similar vein, the Public Ministry has assessed witness protection programs, but lacks funding to provide such security. n49 Still, the need is critical. n50 In many cases, victims and their family members must flee the country out of fear and intimidation if they report crime to authorities. n51 Prosecutors, too, receive death threats. n52 After the assassination of one prosecutor, twenty-five threatened resignation if security measures were not take. n53 According to [*375] MINUGUA Director Jean Arnault, the perception of citizen insecurity is a threat to the peace process. n54

The public is also very suspicious as to whether human rights abuses by government authorities continue. n55 On June 11, 1997, Congress heard testimony from Interior Minister Rodolfo Mendoza and Defense Minister Julio Balconi to the effect that the Estado Mayor Presidencial (a military police force under the command of the President) was not involved in the disappearance of Juan Jose Cabrera Rodas, alias Mincho, during the capture of Rafael Augusto Baldizon Nuez (alias Comandante Isaias), accused of the kidnapping of Olga Alvarado de Novella. n56 Interestingly, that particular case is causing loss of prestige not only for the government, but also for the former guerrillas, since Rodrigo Asturias Amado (alias Gaspar Ilom), a guerilla leader, is implicated in the de Novella kidnapping. n57 Also compromised was the United Nation's human rights verification mission in Guatemala (MINUGUA), that knew about Mincho, but did not reveal its information. n58 The shocking murder of Catholic Bishop Juan Gerardi Conedera on April 24, 1998, days after his human rights report to the nation, renewed fear of abuse. n59 Within two weeks, the [*376] Mayor of Santa Cruz del Quiche was also assassinated. n60 To be sure, one class of individuals, the homosexual community, asserts that human rights abuses continue under the new regime. n61 Also, children in prison appear to be a particularly vulnerable group for human rights abuses. n62 Finally, the Army is once again being used in a law enforcement role. n63

Branches of government have in the past blamed each other for the problems in the justice sector. For example, Vice President Luis Flores Asturias and Interior Vice Minister Salvador Gandera openly criticized the court for public insecurity and inability to administer justice. In response, Court President Ricardo Umaa Arragon sent a letter to President Alvaro Arzu Irigoyen, asking the President to rein in his men. n64 Similarly, the Human Rights Ombudsman has accused the Public Ministry of being responsible for the problems of the justice sector. n65

Curiously, even new legislation seems to be adding to the problem of institutional coordination and clarification of roles in law enforcement. n66 Then Attorney General, Hector Hugo Perez Aguilera, sent a letter to the Congress complaining about unconstitutional and unlawful aspects of the new Civil National Police Law, giving too much power to the police at the expense of the Public Ministry. n67 Congress, for its part, demands that the Executive branch draft an emergency plan to reign in violence. n68

[*377] President Clinton has listed Guatemala as a major illicit drug-producing or drug-transit country, in accordance with Section 490(h) of the Foreign Assistance Act of 1961. n69 With U.S. government support, the Guatemalan government counter-narcotics officials seized almost four metric tons of cocaine in 1996, a 400 percent increase over 1995. n70 The Guatemalan government itself estimates that at least one out of four Guatemalan adults suffers from some sort of chemical dependency, principally alcohol abuse. Illicit drug use has not been effectively documented, but government officials believe it has increased steadily since 1990 and contributes to the extremely high level of violence in the country, especially within the capital city. n71

The actual level of crime, however, is difficult to quantify. n72 One account listed Guatemala as the country suffering from the second [*378] highest level of crime in Latin America. n73 According to official government sources, there were thirty kidnappings between January 1, 1996 and May 30, 1997, n74 and seventy between January 1 to December 10, 1997. n75 As of February 21, 1997, there were 227 individuals in crim [*379] inal detention, pending trial, on charges of kidnapping. n76 Regardless of statistical source, however, most seem to agree that in 1997 kidnappings declined, while bank robberies increased. n77 Meanwhile, Guatemala suffers from at least one rape per day. n78


The U.S. Agency for International Development has commissioned its own attitudinal survey of Guatemalan values on democracy, civil society and justice. n79 In that review, 22 percent of Guatemalans reported that they, or some member of their family, had been the victim of a robbery, assault or kidnapping in the last 12 months. n80 Nearly half the residents of the Guatemala City metropolitan area indicated they had been the victim of a crime within the last year. n81 In urban areas, 29 percent of individuals indicated they, or a family member, had been victims of crime, while the figure fell to 15 percent for rural areas. n82 Interestingly, indigenous status is negatively related to being a [*380] crime victim - it is more likely for a ladino than an indigenous person to be a crime victim. n83 There is also a positive relationship between level of education and probability of being a crime victim. n84

The extent of child kidnapping, especially for purposes of foreign adoption, has been debated in the press. n85 In at least one case, an attorney and medical doctor were charged with falsifying records for the "export" of stolen children. n86

Murder and deaths connected with other crime are also on the increase in Guatemala. Most of these incidents involve fire arms. From January 1 to November 15, 1996, 5,000 people lost their lives violently in Guatemala. From January 1 to November 30, 1997, the figure increased to 6,652. Thus, in 1997, roughly twenty people a day died of violent crime in Guatemala. n87

Linguistic concerns further complicate administration of justice in Guatemala. Beyond Spanish, the country has at least 22 ethnic groups, speaking 20 languages derived from Maya, Garifuna and Xinca. n88 Consequently, language differences greatly complicate attempts to advance access to justice, especially for those most likely to be mono- lingual in a language other than Spanish - indigenous groups, the poor, women and children.

These disadvantaged groups have differing experiences with the justice system, perhaps in part as a result of their economic, social, racial and linguistic status. According to one survey, indigenous people who can be identified as such by the wearing of traditional dress perceive the greatest level of inequality of treatment by police and courts, favoring ladinos. n89 Similarly, the average level of confidence in [*381] the justice system for men is much higher than for women. n90 Finally, there is an inverse relationship between level of confidence in the justice system, and level of education - less educated people have more confidence in the system than more educated ones do. n91

Guatemala today has sixty one appellate judges, 170 trial judges (jueces de primera instancia), 253 criminal justices of the peace and 2,603 support staff members (auxiliares de justicia). n92 There are a total of 480 courts in place. n93

II. Historical Context of Social Conflict and Abuse of Law.

The original Spanish colonization did not promote a rule of law in Guatemala. n94 According to the Catholic Priest Bartolome de las Casas, a contemporary and friend of Christopher Columbus, n95 the Spanish committed extraordinary human rights abuses in Guatemala against pregnant women, mothers of newborn babes, children and old men. n96 He further alleges that don Pedro de Alvarado (one of Cortes' officers, who was in charge of the campaign in Guatemala) was responsible for "butchery and destruction" and the deaths of "four or five million souls over the fifteen or sixteen years, from 1524 to 1540." n97

In the 19th and 20th centuries, long-term reigns of strongmen gave the country political stability. However, political opposition was brutally repressed, and the small aristocratic class held power zealously. n98

[*382] In 1944, a new Constitution was enacted, representing a dramatic break with the past. This new Constitution introduced to Guatemala the Jeffersonian principle of popular sovereignty and individual rights, a fair and honest political system, and noble social guarantees. n99 In March 1945, Juan Jose Arevalo became a democratically-elected president. n100 In 1950, Jacobo Arbenz Guzman became the second democratically-elected president. n101

Because of Arbenz policy of agrarian reform (which could have potentially damaged United Fruit, a U.S. company), among other issues, the U.S. began to plot his overthrow. n102 Senator Henry Cabot Lodge, whose family owned stock in United Fruit, was a major supporter of this effort. n103 Also on board were John Moors Cabot, the Assistant Secretary of State for Inter-American Affairs, whose family also held shares, n104 Secretary of State John Foster Dulles (who had done legal work for United Fruit) and Allen Dulles, then head of the CIA (who also had done legal work involving United Fruit). n105

A. Return of Repression: 1954-1985
In the period 1954 to 1996, Guatemala experienced severe problems in terms of democratic government and the rule of law. After the Arbenz coup, Col. Carlos Castillo Armas came to power, handpicked by the U.S. to be Guatemala's "liberator." n106 However, despite continued American aid, the situation within Guatemala deteriorated. Many of the new officials considered Castillo Armas' victory a license to steal money. In collaboration with American gangsters, [*383] casino gambling became a major problem. n107 In 1957, Castillo Armas was assassinated and was followed as President by Miguel Ydigoras, an early ally of Castillo Armas. n108

In 1963, Ydigoras was deposed by then Defense Minister Peralta Asurdia, a more reactionary politician who had received backing from the U.S. n109 His forces murdered hundreds of anti-government activists. Many simply "disappeared." n110

In 1966, Peralta Asurdia kept his promise of holding elections. However the principle candidate, a centrist, Mario Mendez Montenegro, was found dead four months prior to the election. His brother, Julio Cesar Mendez Montenegro, stepped forward in his place and won the elections. However, he was soon reduced to a figurehead and was forced to give the military a free hand, which benefitted from $ 6 million in U.S. military aid and $ 11 million in American military equipment. n111

During that presidency, Col. Carlos Arana Osorio, a veteran of U.S. Green Berets training, introduced political assassination on a mass scale. Thousands of people suddenly met death at the hands of unseen gunmen. Many had been middle-class professionals who had supported Arevalo and Arbenz. n112

From 1966 to 1970, the United States allocated more than $ 2.6 million for police instruction and equipment under the U.S. Office of Public Safety (OPS) Program. By 1970, over 30,000 Guatemalan police had benefitted from OPS training. At the time, Guatemala had the second-largest American police assistance program in the hemisphere after Brazil, which had twenty times the population. n113

Amid a growing guerilla movement, Arana went on to become the next president, running as the "law and order" candidate in an election controlled by the military. Arana was followed by conservative general Kjell Eugenio Laugerud Garcia. In 1978, after a fraudulent election, Fernando Romeo Lucas Garcia became President, promising a "harsh campaign against guerilla groups." n114 During that time, death squads linked to the Army reached into every sector of national life, on a daily basis. According to Rene de Leon Schlotter, [*384] leader of the center-left Christian Democrats, in his testimony before the U.S. Congress:

Guatemala has suffered a spectacular form of violence: spectacular not only for having lasted through the past two decades, but also for its intensity - the high number of victims and the cruelty of the methods used... With its policy of military and police assistance, the United States has collaborated in the acts of repression, and consequently in the violation of human rights... n115
In 1982, General Efrain Rios Montt seized power in a bloodless coup. While promising to end the death squads, the "scorched earth" campaign continued. As a result, the United Nations censured Guatemala for continued human rights violations. n116 Rios Montt had at first promised elections and a new constitution, but later declared himself president for life. n117 He was ousted by another military general, General Oscar Mejia Victores in 1983, beginning the transition to a "formal democracy." n118

In the 1980's, General Hector Gramajo was in charge of a commission that drafted the infamous 70%-30% "civil affairs" program. As Gramajo explained, "you needn't kill everyone to complete the job [of controlling dissent]... There are more sophisticated means... We instituted civil affairs [in 1982] which provides development for 70 percent of the population while we kill 30 percent." The Guatemalan Army admits to destroying 440 villages during the late 70's and early 80's. n119

1. Draft Legislation Proposing Change in Criminal Procedure.
On September 6, 1961, Sabastian Soler (an Argentine national) and Romeo Augusto de Leon (Guatemalan) and Benjamin Lemus Moran (Guatemalan) presented a draft reform for Criminal Procedure for Guatemala. n120 That draft was based on a bill in the Argentine Province of Cordova, presented in 1937 by Sabastian Soler and Alfredo Velez Mariconde, which sought to introduce oral proceed [*385] ings. n121 The Guatemalan bill sought to create an adversarial system of public trials. n122 Incredibly, not only was this bill never introduced to the floor of Congress, it was not even used as a draft for later bills that were introduced. n123

Another bill, drafted by Guatemalan attorney Gonzalo Menendez de la Riva in December 1972, sought an intermediate approach. Menendez proposed a secret investigative stage, but an open, public trial. n124 Again, the proposed legislation was not seriously considered by Congress. n125

In July 1973, Congress did act to make modest reforms to the Criminal Procedure Code. n126 However, procedure remained written, secret and slow, following traditional inquisitorial process. n127

2. Input from Guatemalan Universities.

In 1967, the Universidad Rafael Landivar held a seminar to discuss ways to reform the Criminal Procedures Code. n128 That seminar led to recommendations that Guatemala adopt an adversarial system based on oral trials. It also recommended that criminal investigation and the trial itself be separated, and sought a redefinition of the role of prosecutors in the system. n129

B. The 1985 Constitutional Process and a Return to Democracy

On at least a formal level, democratic government and the rule of law received a boost when, in 1985, Vinicio Cerezo was elected as a civilian president. Unfortunately, however, as Cerezo himself told the press, the military continued to be the real power. n130 Two coup attempts, in May 1988 and May 1989, weakened the Cerezo government. Killings, politically and non-politically motivated, increased. n131 Meanwhile, the Cerezo administration was accused of large-scale cor [*386] ruption, with government officials including Cerezo himself purchasing large homes with public funds. n132

In 1986, with the new 1985 constitution and formal democratic elections, n133 the U.S. Agency for International Development began work in the Guatemalan justice sector through the Regional Administration of Justice Project. This project was implemented through the Latin American Institute for the Prevention of Crime and the Treatment of the Offender (ILANUD), n134 located in San Jose, Costa Rica. ILANUD contracted with Florida International University n135 in a project to advance training and seminars and eventually a sector assessment in 1987-88. However this was rejected by the Supreme Court. n136 Indeed, the court banned everyone involved in the assessment from future work and forbid the circulation of the assessment. n137

Unfortunately, human rights problems continued to persist. n138 According to the International Human Rights Law Group, in the 1980's, Guatemala was the most repressive country in the hemisphere. Successive military rulers killed tens of thousands of people, mostly Mayan from the highlands. In addition, they drove hundreds of thousands more into internal and external exile, razed some four hundred villages, and killed or kidnapped thousands of people in Guatemala City. Whether civilian criminal justice could enforce respect for human rights and establish the rule of law was, at the very least, an open question. n139

From 1987 to 1990, USAID contracted with the Harvard Law School's Center for Criminal Justice. That project focused on training, problem identification and implementation of a pilot court program in [*387] Totonicapan. n140 However, the Guatemalan counterpart institutions did not follow up on the activities and project advances were not sustained. n141

In 1981, the President of the Court had requested assistance from ILAUND to introduce oral proceedings to Guatemala. B. Julio Maier and Alberto Martin Binder Barzizza, both Argentines, began work with the Court to draft new legislation. The commission included justices of the peace, trial court judges and appellate level judges. n142 In 1986, Binder and Barzizza completed additional work on another draft based on a new Criminal Procedure bill that was pending in the Argentine legislature. n143 In 1988, the Codigo Procesal Penal Modelo para Iberoamerica was published (in Rio de Janeiro, Brazil, by Jaime Bernal Cuellar, Fernando de La Rua, Ada Pellegrina and Julio Maier), adding greater weight to the need for reform. n144 In 1990, Binder and Maier finished another draft bill. n145 This finally led to Supreme Court President Edmundo Vasquez Martinez' presentation of a new bill to Congress on May 23, 1990. n146

In 1990, lay preacher Jorge Serrano Elias became the second consecutive democratically-elected president in Guatemala. n147 However, his government quickly became one of the most corrupt in Guatemala's history. n148

Congress initially objected to the legislation, noting the Argentine participation in the latest draft, even though it reflected input from the earlier drafts carried out by Guatemalans. n149

To a very significant degree, the ILANUD and Harvard efforts represented USAID's testing the water in a new and sensitive priority area. n150 In 1990, USAID followed the Harvard activity with the "Improved Administration of Justice Project" (IAOJ). This project was [*388] terminated abruptly in December 1991 when counterparts were unwilling to collaborate. n151 USAID concluded that its future work in the justice sector should use as its centerpiece a new Criminal Procedures Code, n152 and further USAID assistance to the justice sector was conditioned on reforming the antiquated criminal procedure code. n153

A new version of the bill was prepared by Guatemalan Attorneys Alberto Herrarte and Cesar Ricardo Barrientos Pellecer, with strong support from two members of Congress, Jorge Skinner Klee and Arabella Castro Quiones. n154 In 1993, the President attempted to dissolve Congress and the Supreme Court through a "self-coup" (autogolpe). Instead, this led to the resignation of the President and Congressional elections for a transition period. Ramiro de Leon Carpio, the former Human Rights Ombudsman, became President. n155 Shortly thereafter, USAID resumed support for the justice sector. n156 The in-coming government reinvigorated negotiations with the Union Revolucionaria Nacional Guatemalteca (URNG). n157 Further, new Court President Edmundo Vasquez Martinez submitted the bill to reform the criminal procedure code. The bill was accepted and passed in September 1992, n158 as the first piece of legislation after the Jorge Serrano coup. n159

C. The "Firm and Lasting Peace".

In 1996, Alvaro Arzu was elected by a narrow margin over Alfonso Portillo, a populist supported by the traditional right. Arzu fo [*389] cused an enormous amount of energy on getting a final peace settlement signed during his first year in office. n160

Today the war is over, but peace will not be easy. Dennis A. Smith writes:

One of the key components of peace-building will be to promote national reconciliation. This will not be an easy task in a land haunted by so much death. how to build a nation where torturers and tortured somehow can be reconciled? Will those responsible for grave and massive human rights violations be identified by name? Will they be called upon to assume responsibility for their deeds? n161

III. New Legal Framework: The New Code.

A. Overview of Criminal Procedure in France, Spain and Latin America.
By way of introduction to the topic of criminal procedure reform, a short introduction to comparative criminal law is required. The Anglo-American system is usually referred to as an "adversarial" system (literally in Spanish an "accusatorial" system), while the system used in Continental Europe and Latin America is referred to as "inquisitorial." n162 The word "inquisitorial" does not refer to the legacy of the Inquisition, but to the extensive pretrial investigation and interrogations that are designed to ensure that no innocent person is brought to trial. In this sense, it is an "official inquiry" rather than the adversarial system's "contest" or "dispute." n163 One person, the judge, is responsible for the prosecution, defense and judgement. n164

Under the inquisitorial system, an examining magistrate (Spanish: juez de instruccion, French: juge d'instruction), a civil servant, prepares a pretrial investigation of background information (called "the instruction"). n165 In theory, this is done in a neutral fashion (in French: a charge et a decharge). n166 The examining magistrate has the [*390] aid of the judicial police (Spanish: Policia Judicial, French: Police Judiciaire) n167 and other court officials to carry out investigations. n168 This "instruction" is a cumbersome, bureaucratic process which may take a great deal of time. n169

The instruction is carried out in secret, in theory to protect the accused from adverse publicity prior to a determination that the government has a strong case for prosecution. n170 In this sense, the instruction is somewhat similar to a grand jury hearing in the U.S., which are secret and weigh evidence to decide whether the accused should be indicted. However, grand jury hearings are very short, and only designed to avoid frivolous actions, and thus are quite distinct in purpose from the instruction. n171

Basic to the inquisitorial system as it exists today in "civil law" countries is that its processes cannot be aborted by the accused's "guilty" plea. n172 Even if the accused does admit guilt, the inquiry must continue through a formal trial to decide the proper application of the law to the facts. n173 A formal trial is also necessary to decide what punishment, if any, or rehabilitation steps are needed. n174

The process of investigation (instruccion) consumes an inordinate amount of time, during which the person under investigation, at least in major crime cases, will likely remain in jail, or if at liberty, under a public cloud of suspicion. n175 The potential for abuse in a lengthy, secret pretrial proceeding is obvious. Often, the accused may remain in jail, without even possibility of bail, while the instruction is going on. In 1984 in France, for example, 51.9 percent of those in detention were awaiting trial rather than serving sentences. n176

The complete record of pretrial proceedings under the instruction is called the "dossier." The dossier also serves to inform judges, defense attorneys and others about the testimony of key witnesses and the evidence to be presented at trial. n177

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