Military Diary Case
Ex-military personnel Alix Leonel Barillas Soto and Enrique Cifuentes de la Cruz have requested a trial to review their enforcement measures. At this meeting, the lawyer representing the victims in the case analyzed the petition and argued that the crimes for which the accused are charged are of international concern and to the detriment of society.
The hearing opened with the petition of Victor Manuel Arévalo, defense lawyer for Enrique Cifuente de la Cruz, who, at the previous trial, requested substitutive measures for his ex-military client. In response, the deputy Judge Rudy Bautista ordered a medical evaluation conducted by INACIF (National Institute of Forensic Sciences of Guatemala) and a revision of the accused’s clinical records. During this trail, INACIF presented two reports which detailed the health status of the accused. The defense advocated for the right to having the presented information judged in a reasonable timeframe, and that there is no flight risk nor threat of obstruction of justice due to the accused’s poor health condition. The defense attorney requested humane treatment for his client, and invoked the principle of equality seeing that the deputy Judge Rudy Bautista had already granted house arrest to other accused parties, Jacobo Esdras Salan Sánchez and Malfred Orlando Pérez Lorenzo.
Maria Cristina Villatoro Cabrera, defense attorney for the ex-military official Alix Leonel Barillas Soto, argued that the original circumstances which compelled the pre-trial detention of her client have changed and, now, no risk of flight or obstruction of justice exists. The lawyer commented that the crimes committed happened a long time ago, in 1984. The defense’s argument references a law that protects the elderly, and the poor state of her client’s health. During the trial, the defense presented documentation as proof that the original circumstances have changed and thereby requested substitutive measures for the accused.
Human Rights attorney Elena Sur Ren specified that when the petition of pre-trial detention was issued for Enrique Cifuentes de la Cruz and Alix Leonel Barillas Soto the request was supported by proof and decided in accordance with the law.
Both the lawyer from the Public Ministry and the lawyers representing the victims argued that the crimes for which the ex-military officials are being tried do not contain a statute of limitations and are of international concern, due to the fact that they affect society at large. The defense indicated that according to the international human rights treaties and laws which Guatemala has ratified, an exhaustive analysis is required in order to be able to offer substitutive measures to those accused of the crimes of forced disappearance, and the measures must be applied proportionally, according to the standards of those international treaties.
Furthermore, the attorney pointed out that the accused Enriquie Cifuentes de la Cruz is also being charged for murder and attempt of murder, which are crimes that cannot be granted substitutive measures according to Guatemalan Criminal Procedure Code. The opinions presented by INACIF conclude that Enriques Cifuentes de la Cruz’s health is not critical and he is able to receive outpatient treatment. The prosecution argued that such substitutions do not adhere to the requirements of the law and that there is not sufficient proof that the circumstances that led to their pre-trial detention have changed. In the case of Alix Leonel Barillas Soto’s health, his report was completed by a private doctor and therefore is not valid.
In their arguments the prosecution ask for the accused to enjoy their full right to health. They stress, however, that the submitted requests should not put at risk the rights and guarantees of the victims. They emphasize that when a conflict arises between the rights of the accused and those of the victims, the rights of the victims should be prioritized in order to avoid continued immunity in such cases.
In her decision, the Judge did not approve the defense’s request for substitutive measures for the ex-military personnel.
The Judge pointed out that adequate documentation was submitted to discount a possible flight risk; however, there was insufficient proof to verify that there is not obstruction of justice in the process.
Regarding Enrique Cifuentes de la Cruz’s petition, the Judge stated that she would not consider the request given that he was sent to trial for the crimes of murder, to which substitutive measures do not apply.
Regarding the principle of equality, the Judge resolved that every judge has their own legal interpretation with which to issue their opinions, and that a humanitarian appeal is distinct from an appeal to review enforcement measures. Which is to say, they are two different processes.
The Judge concluded by declaring that the accused’s requests will not be approved and they will remain in pre-trial detention as dictated by the previous decision.
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