The Supreme Court of Justice agreed to process a preliminary judgment against Judge Erika Aifán. The complaint was filed by Wilber Castellanos, known to have been in contact with Gustavo Alejos, currently in jail. What does the resolution say? What does the judge think? More details in this note.
This piece by Jody García was recently published in Nómada, in Spanish. Any errors in translation are mine.
On July 1, ten magistrates of the Supreme Court of Justice (Corte Suprema de Justicia – CSJ) decided to accept the complaint filed by Wilber Estuardo Castellanos Venegas, president of the Institute of Magistrates of the Court of Appeals (Instituto de Magistrados de la Corte de Apelaciones), against the judge of the highest risk court, Judge Erika Aifán.
According to the CSJ resolution, Castellanos Venegas accuses the judge of having signed resolutions for telecommunication companies requiring them to submit reports of the record of telephone calls of judges and magistrates who appear in the report of the Special Prosecutor’s Office against Impunity (Fiscalía Especializada Contra la Impunidad – FECI), on the contenders for the Court who met with Gustavo Alejos, businessman and prisoner involved in six major corruption cases.
Castellanos Venegas claims that Judge Aifán, and the prosecutor Juan Francisco Sandoval, head of the FECI, make up “a political-criminal structure organised to weaken the Judicial Organism and to take control of it to destroy social peace.”
Although no evidence was attached to the complaint against the judge, the following permanent and acting magistrates voted in favor of initiating a preliminary hearing against her: Silvia Valdés Quezada, Vitalina Orellana, Nery Oswaldo Medina, Josué Felipe Baquiax, Sergio Pineda, Nester Vásquez Pimentel, Marwin Herrera Solares, Guillermo España Mérida, Leonel Sáenz Bojórquez and Carlos Rolando Paiz Xulá.
“The complaint was not promoted for spurious reasons as sufficient documentation was accompanied,” says the resolution. However, two CSJ magistrates disagreed.
Delia Dávila and Silvia Verónica García voted against processing the pretrial hearing. In their response, both agreed that Castellanos Venegas simply attached, as evidence, a photocopy of the FECI report.
“It is determined that the lack of sufficient reasonableness demonstrates the need to order an investigation,” says Dávila in the resolution.
“The exercise of the judicial function of the accused judge cannot be criminalised without any evidence, who acts in accordance with her legal and constitutional mandate in the legitimate exercise of her jurisdictional powers,” emphasises Judge Silvia García.
“They are obstructing my work”
Judge Aifán replied to Nómada that the number of complaints, and attacks against her have increased, Also, the problems with the personnel assigned to her court, despite multiple requests to the Supreme Court of Justice, have not been addressed.
A notifier from her court is being investigated for the loss of two legal documents: an appeal by Gustavo Alejos in his case for evasion, and a ruling in the process of Rodrigo Arenas, accused of illegal electoral financing for the FCN party. This is not the first time that important case documents have been removed from within her court. However, none of her complaints have been resolved by the authorities of the Judicial Branch.
“The CSJ tells me to go to the Management (of the Judicial Body), the Management tells me to go to the Disciplinary Body, and there they tell me to go to the CSJ, but in the end nobody resolves anything. There are issues that have been hindering the work of my court and these actions are added to this, “she says.
Aifán’s court is under attack. In her judiciary, cases are being processed against Gustavo Alejos, and other politicians and large businessmen. Among them are the cases known as: Odebrecht, Construction and Corruption, Assault on the Ministry of Health, Parallel Commissions, Pandora’s Fund and Illicit Electoral Financing of the Unionist Party.
“This is intended to hinder my judicial function, that is why the Inter-American Commission on Human Rights gave me precautionary measures. I am concerned that there may be a disrespect for, and violation of judicial independence because the State of Guatemala is not even complying with the measures ordered by the Inter-American Commission, ”the judge claims.
Aifán claims that she did not issue any resolution against any judge or magistrate who has the right of pre-trial.
Wilber Castellanos: “They hold meetings outside the court”
Nómada communicated with magistrate Wilber Estuardo Castellanos, president of the Magistrates Institute, to understand how he supports the accusation against Judge Aifán and the Prosecutor Sandoval.
“There is a lot of evidence that they hold meetings outside the court, that they participate in many events with foundations, and other NGOs, that make us think that there is a prior agreement between them. Obviously the idea is that through a pretrial, this is investigated, “says Wilber Castellanos.
Castellanos aspires to be elected by Congress to be a magistrate of the Supreme Court of Justice. His name not only appears in the report presented, by FECI, of the candidates who met with Gustavo Alejos, but also among the signatories of the trial against the magistrates of the Constitutional Court.
Wilber Castellanos tries to downplay his intervention: “I would not say that I play a role. In some way what I am doing is carrying out the actions of a legal representative of the Institute of Magistrates. When analysing the report, the Institute determined that it suffers from falseness and a series of shortcomings and deficiencies. That is the role I play. ” He also claims that Gustavo Alejos was not contacted.
Nor does he recognise any conflict of interest between his position as an aspiring magistrate and his complaints against agents of justice:
Nómada: As you are a candidate for a magistracy, in the same way that you are the person who denounced the four magistrates of the Constitutional Court, did you consider whether there was a conflict of interest on your part when deciding to process the pretrial?
“I made my analysis and consider that I have no conflict of interest because there is no magistrate who could integrate into the Supreme Court who is not an applicant, and that it is not a hindrance for it to be known because the pre-trial procedure is not against the report, nor against the Public Ministry. It has to do with an abuse of power by the Constitutional Court, while the statement made to me is by the Public Ministry.”
What is to come
Judge Beyla Estrada will be the one to decide whether the complaint from the Institute of Magistrates, against the judge, is upheld. In two months she must submit a report to the CSJ with a recommendation on whether or not to withdraw [Aifán’s] immunity. Estrada is part of the Third Appeals Chamber, the same one that voted against withdrawing immunity from former mayor Álvaro Arzú. She also voted in favor of annulling the sentence against the son of former President Jimmy Morales, this was when her husband Alfredo Brito worked as the Government’s Communication Secretary.
The complaint process against Judge Aifán’s is not in isolation. It occurs in a week in which Congress has announced that it will not comply with resolutions of the Constitutional Court. Social, indigenous, and peasant organisations demonstrated today (3rd July) in front of the Legislative Body and demanded that President Alejandro Giammattei, the Attorney General Consuelo Porras, the Organization of American States, and the United Nations fulfil their roles in guaranteeing the democracy of the country.
At the conference, Daniel Pascual, from the Peasant Unity Committee (Comité de Unidad Campesina – CUC), spoke in favor of Aifán and said that the action appears to be an attack by “the mafias, corruption and impunity against democratic judges and who act in accordance with the law”.
The echo of attacks on judges has raised concern outside Guatemala. The United Nations Special Rapporteur for Judicial Independence, Diego García-Sayán, also condemned the harassment of Afián.
You can read the original article by Jody García, with links and relevant tweets in Spanish, here, in Nómada.