The role of prosecutorial independence and prosecutorial accountability in domestic human rights trials

ABSTRACT

A prosecutorial organ is always in charge of the investigation and prosecution of crime, which makes this institution a key gatekeeper to the courts. Empowered with prosecutorial discretion, a prosecutorial organ dictates what, when, and whom to prosecute. The institutional design of the prosecutorial organ varies across time and across countries, which raises an important, yet quite understudied question: Does institutional design matter for how states respond to human rights violations and, if so, how? In this article, I develop a theoretical framework that highlights the importance of prosecutorial independence and prosecutorial accountability. I argue that understanding the factors that impact the use of prosecutorial discretion in human rights cases can potentially provide a more complete understanding of why and when states fail to investigate, to prosecute, and to punish human rights violations committed by state agents.

Acknowledgments

I thank Andrea Ordonez and Vinicius Beraldo for their research on the institutional design of the Public Prosecutor's Office in Latin America. I also wish to thank my colleagues from the CUNY-Faculty Fellowship Publication Program, as well as Karina Ansolabehere, Daniel Brinks, Javier Couso, Jo-Marie Burt, Ezequiel González-Ocantos, Lisa Hilbink, Julio Ríos-Figueroa, David Samuels, Kathryn Sikkink, and various anonymous reviewers for comments, criticisms, and feedback on earlier drafts. Any errors or shortcomings are my own.

Funding

Some parts of this material are based upon research supported by a Professional Staff Congress-City University of New York (PSC-CUNY) Research Award (Grant No. 67682-00-45), and others are based upon research supported by the National Science Foundation (NSF; Grant No. SES-0961226) and the Arts and Humanities Research Council (AHRC; Grant No. 0AH/I500030/1) relating to the project titled “The impact of transitional justice on human rights and democracy.” Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the City University of New York, the NSF, or the AHRC.

Notes on contributor

Verónica Michel is Assistant Professor of Political Science at John Jay College of Criminal Justice–CUNY. Her research interests include comparative criminal justice, victims' rights, and rule of law with a regional focus on Latin America.

Notes

1. The resolution of the Constitutional Court sent the case back to the state of the proceedings as they were before April 19, 2013, which implicitly annulled the conviction. The new trial resumed in January 2015, but it was soon suspended after the defense requested that one of three judges from the panel recuse herself from the trial. In July, the proceedings were again suspended because the defense argued Rios Montt is senile. For a summary and updates on the case refer to International Justice Monitor (n.d.).

2. In jurisdictions that require an indictment by a grand jury, like some states within the United States, prosecutorial discretion then gives power to the prosecutor to decide whether to take the case to a grand jury or not.

3. There is variation across countries in Latin America regarding who conducts the investigation. In some countries, the prosecutorial organ has an investigative branch (e.g., the Procuraduría General de la República of Mexico has the Agencia de Investigación Criminal, or in Guatemala the prosecutorial organ has the Dirección General de Investigación Criminal (DIGICRI) that is also in charge of criminal investigations). In other countries the police force has a department in charge of conducting criminal investigations on behalf of the prosecutorial organ (e.g., the Policía de Investigaciones de Chile, which depends on the Interior Ministry). Regardless of such variations, a criminal prosecution always depends on the discretion of the prosecutorial organ. I acknowledge that this framework, for the purpose of simplicity, brackets the work of the police force.

4. For a review of previous measures, see Staton and Ríos-Figueroa (2009).

5. In most countries in Latin America, prosecutors are not elected officials. In countries like the United States where prosecutors can be elected, elections can be assumed also to serve a “post-facto” check on prosecutorial behavior, when voters penalize a prosecutor for decisions one previously made.

6. In pure inquisitorial systems, where the Instruction Judge plays the role of both prosecutor and judge, prosecutorial discretion thus lies in the judge herself. Most countries in Latin America have recently reformed towards more adversarial systems.

7. See Transitional Justice Research Collaborative (2014).

8. According to the World Justice Project, Uruguay ranks first in the region in terms of rule of law. Chile ranks third out of 19 countries in the region, and Guatemala is ranked fifteenth. Rule of law data is taken from the World Justice Project. This database is created with survey data and ranks 102 countries based on perceptions of strength among various indicators of the rule of law. See World Justice Project (2015).

9. Information from Observatorio de Derechos Humanos (2015).

10. Data on ongoing prosecutions are from Observatorio de Derechos Humanos (2015), and data regarding convictions are from Programa de Derechos Humanos (2015).

11. The few human rights cases that made it to the courts after the transition to democracy in 1986 were mostly related to urban victims: students, human rights activists, or union workers. Although a few convictions were achieved, most of these were later reversed in the appeal process. These cases were related to the following crimes: the 1986 kidnapping and murder of student leaders Alvarado Mejia and Liva Cayax, the 1990 killing of American citizen Michael Devine, the 1991 death of a street child, the 1991 shooting of human rights activist Juan Perebal and his son, the 1991 killing of Myrna Mack, the 1990 Santiago de Atitlán Massacre, the 1992 killing of student Cu Quim, and the 1992 killing of civilians in Peronia. See Transitional Justice Research Collaborative (2014).

12. Similarly, the government approved the creation of the Comisión Internacional Contra la Impunidad en Guatemala (CICIG) in 2007. The CICIG was created as an independent international organ with the aim to support the investigation and prosecution of illegal security groups and clandestine security organizations, where defendants are state officials or members of organized crime. Although it does not deal directly with the prosecution of crimes committed before the transition to peace or democracy, the creation of CICIG clearly signaled a concerted effort between government and the United Nations to strengthen overall judicial and prosecutorial independence.

13. Most of these convictions were against low-ranking officials, but there were some higher ranking officials convicted as well. Some of the cases adjudicated after the Peace Accords were the 1997 conviction of police officer Escobar Fernández for the killing of student activist Sánchez López; the 1998 conviction of three former members of the paramilitary group Patrullas de Autodefensa Civil (PAC) for the 1982 massacres in Río Negro and Agua Fría; the 1999 conviction of military commissioner Cándido Noriega; the 1998 conviction of 15 PAC members for the killing of Juan Chonay Pablo; the 2002 conviction of Colonel Valencia Osorio for the killing of Myrna Mack; the 2004 conviction of 25 soldiers including Lieutenant Lacán Chaclán for the 1995 Xaman Massacre; the 2000 conviction of former PAC member Vicente Cifuentes for the 1985 killing of American journalists; the 2008 conviction of former PAC members for the 1982 Río Negro Massacre in Rabinal; the conviction in 2009 of former paramilitary leader Felipe Cusanero Coj for forced disappearances between 1982 and 1984 in Chimaltenango; the 2009 conviction of retired army colonel Sánchez Samoyoa for forced disappearances in El Jute in 1981; and the 2010 conviction of police officer Rodríguez Ríos for the kidnapping of labor leader Fernando García; and the 2012 conviction of former police chief Pedro García Arredondo for the disappearance of student Edgar Saenz in 1980; and the 2015 conviction of Pedro García Arredondo for his leadership of the 1980 siege of the Spanish embassy.

14. See Note 8.

15. This was the first conviction for human rights violations committed during the internal armed conflict. The case was also revived by private prosecutors in 1992. It took three different trials, but, at the end, he was finally found guilty and was sentenced to 220 years in prison. In August 2000, the Supreme Court upheld this decision.

16. The president of the panel, Judge Jazmín Barrios, was also involved in other relevant human rights cases, including the conviction of the killers of Bishop Gerardi in 2007. See, for instance, Prensa Libre (2013a, 2013b).

17. See Lakhani (2014).

18. The convictions were mostly against high-ranking officials. The convictions to date are the following: the 2009 first-ever conviction of two military officers, Nino Gavazzo Pereira and Arab Fernández, for the homicide and disappearance of 28 Uruguayans in Buenos Aires in 1976; the 2009 conviction of former military dictator Gregorio Álvarez for 37 homicides in 1977; the 2010 conviction of foreign minister Juan Carlos Blanco for the 1976 disappearance of Elena Quinteros; the 2010 conviction of soldier Soca Prado for various homicides in 1976; the 2010 conviction of former head of state Juan María Bordaberry for two political murders and nine disappearances; the 2010 conviction of various security officers that were the first to be indicted for illegal detention in the case of the disappearance of politicians Washington Barrios and Adalberto Soba in 1976, a case for which Bordaberry and Blanco were also convicted in 2011; the 2013 conviction of Colonel Tranquilino Machado for the death of Ramón Peré in 1973; and the 2013 conviction of General Miguel Dalmao for the murder of Nibia Sabalsagaray in 1974. Data on convictions taken from Observatorio Luz Ibarburu (2015).

19. The case was brought to the office of the public prosecutor Mirtha Guianze in 2000, through a complaint introduced by the lawyer of the victim's family, Pablo Chargoña. The lawyer introduced the thesis that disappearance was an ongoing crime, which merited a criminal investigation (E-mail communication with Mirtha Guianze, September 9, 2013). Juan Carlos Blanco, former Minister of Foreign Affairs, was convicted in 2010 for complicity in the disappearance of Elena Quinteros, a labor activist who was dragged away from the very garden of the Venezuelan embassy where she was attempting to seek asylum and was never seen again.

20. It has been reported that the first attempt to use this argument was observed in the Zanahoria Case in 1997, where a judge upheld a prosecutor's thesis of disappearance as an ongoing crime. However, an Appellate Court eventually applied the Expiry Law and ordered the case to be referred to the executive's office, where amnesty was applied (see Skaar 2007: 58).

21. According to Observatorio Luz Ibarburu, there are 169 cases in the preindictment stage, among which eight cases were in sumario stage (where defendants are officially linked to the proceedings or “procesados” but are not yet officially indicted). For current information of causes see Observatorio Luz Ibarburu (2015).