The crime of terrorism is in force in national legislation since 2005, but was used so far to persecute a group of leaders who demonstrated against the Attorney General Consuelo Porras. Experts see risks for criminal prosecution, which could have the purpose of criminalizing and seeking to silence the opposition.
The specific facts that led to the arrest of previous leaders of the 48 cantons of Totonicapán have not been exposed because the Public Ministry (MP) has the case under reserve, but it is known that it was for apparent acts committed during the social protests of 2023.
It was a day of demonstrations headed by the 48 cantons, other indigenous leaders and social groups that extended for weeks in the country. Its purpose was to guarantee the inauguration of the elected authorities in fear of a possible “coup d’etat”, and ask for the resignation of the Attorney General and other MP bosses.
The Prosecutor’s Office against Organized Crime is in charge of the case and arrested five people last Wednesday, including Luis Pacheco, current vice minister of sustainable development and former president of the 48 cantons of Totonicapán.
The charges against him are illegal association, instigation to commit crimes, terrorism, obstacle to criminal action and obstruction of justice. Crimes that, at experts’ discretion, are unfounded, mainly due to the syndication of the crime of terrorism.
The latter, being a severe position worldwide, occurs when some group of people, under serious death threats, attacks the civilian population and public buildings in exchange for getting something from government authorities.
To relate a social protest with an act of terrorism has no legal foundations, according to the analysts consulted. This is the lawyer Edgar Ortiz, expert in constitutional law; Javier Monterroso, former secretary of the MP; and Nineth Montenegro, former deputy who voted against including the crime of terrorism to Guatemalan legislation.
Social fear
Ortiz believes that the possible events committed in a day of social protests are completely far from an act of terrorism. “They are profiling some protesters not as offenders, but as enemies of the State,” he explained.
For him, such a severe criminal prosecution, without fulfilling the legal parameters to do so, could seek to instill fear, preventing the opposition from manifesting itself before the decisions of the people or groups that occupy high positions of power.
“I worry because the number one message is terror, paradoxically, because when a person who has participated in protests faces the maximum prison penalty of 30 years, a quite overwhelming message is sent,” he said.
The reservation of the case prevents analyzing with greater elements the case against Pacheco and the other leaders, but Ortiz explains that a social manifestation does not enter into the criminal parameters of terrorism.
“In the protests of 2023, I insist that we do not know the details of the case, but at first glance, if what is being argued is that there are crimes related to some acts of the protest, that is definitely not terrorism,” he said.
This crime is in force in Guatemala since 2005, but it is the first time that someone is criminally pursued under the terrorism label. “Bringing them to the level of terrorism is an unprecedented excess because it is not a crime that has been applied before in Guatemala,” he said.
The MP authorities, when exposing the case, said that it was an objective investigation, but for Ortiz there could be elements of even a conflict of social interests, since the detainees publicly requested the departure of María Consuelo Porras.
“It is difficult to think that there is no animosity of the Prosecutor’s Office, even a conflict of interest, and not in legal but social terms. They are people who opposed the prosecutor who are receiving severe treatment,” he concluded.
Authoritarian persecution
For Javier Monterroso, who occupied the Private Secretariat of the MP, a persecution for terrorism within the framework of a social protest is outside the legal parameters.
“It is dangerous for these acts to be linked to terrorism issues. Terrorism is not clearly defined in international agreements, that is, there is no global consensus on what acts are terrorism or not,” he explained.
Although it is not legally correct, there have already been actions of legal persecutions around protests or citizen demonstrations in countries under regimes that are qualified as dictatorships.
“On very few occasions a protest is considered an act of terrorism. This happened a few years ago in Nicaragua, where people who opposed the Daniel Ortega regime were pursued as terrorists,” he said.
During the protests of 2023 the exit of people from the MP building was prevented, but this behavior also does not scale an act of terrorism, such as demolishing a building, attacking civilians or threatening death, he added.
“Terrorism is a serious crime that includes serious threats against people’s lives. A citizen protest where perhaps they did not let people out of a public building cannot be considered terrorism, because it was not sought to cause damage to the lives of people or the real estate of the State,” he insisted.
The MP signs, at Monterroso’s discretion, are dangerous because they could mean a negative precedent for the nation. “A criminal prosecution of an authoritarian, repressive type is being generated. They are persecuted for having a political ideology, not because the facts themselves have been illegal,” he added.
Misused
On April 8, 2003, Congress knew the law to prevent and suppress terrorism financing. The deputies speaking of the norm, according to the document, were Leonel Soto and Zury Ríos, former presidential excandidate.
The proposal obtained a favorable opinion by majority in the Finance Commission, since, although it was sought to avoid financing qualified groups as terrorists, the norm scaled criminally and allowed to include in the Criminal Code the crime of terrorism.
The fifth legislature of Congress approved the rule on August 31, 2005, but there were votes against. One of them was that of former deputy Nineth Montenegro, who warned that such a law would be used against the opposition.
“There was fear of just listening to the term terrorism because it was used throughout the internal armed conflict to reduce any opponent with forced disappearances, exile and massacres,” he explained.
The former congressman assures that, although the rule came from international agreements, this was not coupled to Guatemala, since it is not a country that was at war for peace.
“We received that initiative with a lot of impact because only in 1996 the internal armed conflict had culminated, where any opponent for their own opinion was labeled as a terrorist, was arrested or missing until the peace agreements arrived,” he recalled.
Montenegro voted against the law warning that such a rule could be used as a weapon, to intimidate opposite people with the ideology of the authorities or power groups.
“It worried that both at any time the law and the modification to typify the crime of future terrorism could be used as in past times, that is, against any opponent or meaningless issues,” he said.
Although the law walked for two years in Congress until they reached the approval, the arguments that questioned the law did not echo and the votes against were a minority.
“Unfortunately, there was a majority, but there are those who had our reservations because in Guatemala everything is so changing, you never know how a law can be used against certain sectors or favor others,” he concluded.
The first statement hearing against Luis Pacheco, so far, will be under reservation and the facts for the alleged crime of terrorism will not be public. A position was consulted with the MP Social Communication Department to know their point of view by the analysis of the experts, but did not answer the questions sent.