September 26, 2018

Proceedings to Select Prosecutor General of Guatemala

Executive Summary

Background

Relevant International Standard

Concerns Regarding Impartiality of the Commissioners

Failure to Collect Basic Information About the Candidates

Failure to Publicly Address Allegations of Serious Wrongdoing

Failure to Evaluate the Candidates in an Objective and Reasonable Manner

Recommendations

Conclusion

 


Executive Summary

In May 2018, Guatemala will select a new Prosecutor General. The outcome of this process will have profound implication for Guatemala’s ongoing efforts to strengthen the rule of law and combat systemic corruption within the country. In light of past irregularities in proceedings to select prosecutors general, the Center observed the current proceedings and has concluded that the Commission charged with nominating candidates failed to take reasonable steps to vet the candidates.  The failure to collect basic information about the candidates calls into question the Commission’s ability to evaluate whether any have engaged in unethical behavior or are the subject of credible allegations of corruption.  The Center recommends that further vetting of the final six candidates nominated by the Commission – including a review of their financial holdings – be conducted prior to the selection of the Prosecutor General by the President.[i]

The American Bar Association observed the proceedings in 2014 to select the current prosecutor general and concluded that the proceedings were marred by significant irregularities.[ii]  Concerns about corruption in the process only increased after two individuals in Guatemala were recently indicted on allegations of influence peddling during previous postulation processes.  The independence and impartiality of the current postulation commission has been compromised by unresolved questions about the relationship between the president of the commission and individuals charged with influence peddling in the last proceedings.

In December 2017 and February 2018, the Center sent a representative of the Association to present recommendations to the Commission regarding best practices relevant to the selection of high level justice sector personnel.  In particular, the Center recommended that the Commission solicit information from the candidates using a questionnaire about the past work of the candidates and their financial holdings.  The questionnaire – which is based on the questionnaire to select judges in the United States – elicits information that can be used to detect corruption or other misconduct, including violations of relevant ethical codes.  The Commission has elected not to use such a questionnaire and is instead relying on limited information about the candidates’ backgrounds.

Civil society and the press have raised significant concerns about a number of candidates, including evidence of misconduct in public office.  The concerns were not addressed by the Commission in public hearings regarding the candidates.  Based on the insufficient information collected by the Commission, the candidates were each given a score.  A number of candidates with a track record of independence were given lower scores than candidates with similar work experience about whom there are unresolved concerns of serious wrongdoing.  In light of the significant irregularities throughout the process, neither the citizens of Guatemala nor the international community can have confidence that the final candidates have the independence necessary to effectively combat organized crime in Guatemala absent additional vetting by an independent institution.

Background

The Guatemalan Constitution and relevant statutes determine the processes for selecting the Prosecutor General, who serves as the head of the Public Ministry. A preliminary list of qualified candidates for these positions is prepared by a “postulation” commission (comision de postulación) composed of representatives of relevant legal entities. The composition of the commissions varies depending on the position to be filled but usually includes deans of law schools, judges and elected representatives of the Association of Attorneys and Notaries of Guatemala. By law, the commissions are charged with reviewing the qualifications of interested persons, including a review of academic performance, integrity, professional experience, leadership and public interest service.  The commission nominates six (6) candidates for Prosecutor General.  The President of Guatemala selects the Prosecutor from among this list for a term of four years after election.

In the application form,[i] the postulation commission asked the candidates for basic information like criminal convictions, an outline of their work plan, the frontpage of the books that the candidate has published, and a list of all professional affiliations, among other items.[ii]    The commission’s schedule for proceedings was organized into four stages.  The first one began on February 5th, 2018, with the call for applications. The second began on February 26th when the Commission published the list of candidates who did not meet the requirements for the position.

The third stage began on March 12th with the list of candidates who met the requirements to continue in the process and called for public submissions of information challenging the suitability of the candidates.  The fourth stage will be beginning on April 23th with the naming of the six final candidates.  This list will be sent to the president of Guatemala, who will choose one of the candidates as the next prosecutor general of Guatemala.[iii]

Later this year, another postulation commission will be formed to select new appellate court and Supreme Court judges.  The last round of proceedings to select high court judges were also marred by irregularities.  It is therefore essential that the postulations commissions transition to a merit based selection process prior to beginning the selection of high court judges.

 

Relevant International Standard

While international law does not require a particular set of proceedings for the selection of judges and other justice sector personnel, such as prosecutors,[i] it does establish minimum standards for such proceedings.  These safeguards ensure the independence of the judiciary, which is essential to the realization of the right to a fair trial enshrined in Article 8 of the American Convention on Human Rights.[ii]  Article 23(1) of the Convention guarantees the right to serve in the government “under general conditions of equality”.  The Inter-American Court of Human Rights has held that Article 23(1) requires State parties to ensure that “the criteria and processes for appointment, promotion, suspension, and dismissal must be objective and reasonable,” and that “persons do not suffer discrimination in the exercise” of this right.[iii]

The Inter-American Commission has emphasized that selection procedures should be open to public scrutiny to “reduce the degree of discretion exercised by the authorities in charge of the selection and appointment process and the possibility of interference from other quarters.”[iv]  The Commission noted that public proceedings help ensure that “the candidates’ merits and professional qualifications can be more readily identified” and are therefore “essential when appointing the highest-ranking justice operators, when procedure and selection is in the hands of the executive or legislative branch.”[v]

A comparative study of judicial selection procedures in the United States, Great Britain, Germany, China and Japan found that public selection proceedings that gave all sectors of society adequate time to raise concerns about candidates appeared to produce the most vigorous vetting of candidates as they afforded entities with different expertise the opportunity to review  candidates’ records.[vi]  As a result, the public had greater confidence that the nominees were selected based on their qualifications and merit, not political considerations.  In contrast, confidential proceedings tended to be susceptible to manipulation by political parties or other special interests.[vii]                                                                                                      

In the United States, federal judges – including Supreme Court Justices – and the Attorney General are appointed by the President subject to the advice and consent of the Senate.  Judicial nominees are required to respond to an extensive congressional questionnaire regarding their legal experience, financial holdings, and writings.[viii]  Most of the responses, with the exception of some financial information, are made public.[ix]  The Senate Judiciary Committee then holds thorough public hearings on the candidates and members of the public have the opportunity to raise any concerns they may have with the candidates with their Senators.[x]  The Committee conducts an extensive review of the nominees’ backgrounds, including their legal writings.  In the case of nominees who have previously served as judges, their past decisions are the subject of extensive public and congressional examination and discussion. 

For more than sixty (60) years, the American Bar Association (ABA) – a voluntary, professional association – through its fully independent and broadly representative Standing Committee on the Federal Judiciary (SCFJ) has participated in the process for selecting federal judges by conducting an extensive review of the candidates’ (a) professional qualifications (including legal writing); (b) judicial temperament; and (c) character and integrity.[xi]  The ABA’s comprehensive evaluation leads to a ranking of candidates as well-qualified, qualified or unqualified.  The Chairman of the SCFJ and another Committee member testify before the Senate Judiciary Committee on the Committee’s evaluation of each Supreme Court nomination. In the instance when the SCFJ has determined that a candidate for a lower federal court position is unqualified, the Chairman of the SCFJ and another Committee member testify before the Senate Judiciary Committee.

 

Concerns Regarding Impartiality of the Commissioners

Proceedings to select justice sector personnel in Guatemala have been marred by irregularities for years.  The failure to fully address the failings of past commissions, including questions concerning the composition of the membership, has led to ongoing concerns about the impartiality of the present proceedings.  Recent criminal charges of influence peddling in past processes have heightened these concerns.  In addition, certain commissioners who were granted positions on the commission by virtue of serving as law school deans have been questioned because irregularities in the formation and operation of the schools call into question whether they were created for the purpose of exerting control over the commissions.

A UN commission established to investigate parallel criminal organizations in Guatemala (known by the Spanish acronym, CICIG) recently worked with the Prosecutor General to indict a Guatemalan businessman for influence peddling during the 2014 process to select judges to the Supreme Court of Justice and to the appeals courts.  According to CICIG, the businessman – known by the nickname “The King of Tennis” because he reportedly began his career by selling knock-off tennis shoes – contributed almost 1 million quetzales (U.S $134,000) to the campaigns of individuals seeking membership in the commission and paid for the apartment of one of the commissioners.  He also paid for expenses and meals for meetings attended by candidates and commissioners. He is currently in detention pending trial on these charges.[i]

According to CICIG, during the 2014 proceedings, the businessman met with a candidate for the Supreme Court who went on to become the president of the Supreme Court. As president of the Supreme Court, he serves as the chair of the present postulation commission to select a new prosecutor general.[ii] The businessman also reportedly met with one of the current candidates for Prosecutor General, Rafael Rojas Cetina.[iii]  During the interview of Rojas Cetina, he was not asked about his relationship with the indicted individuals.  He was given a relatively high score by the Commission.  The president of the commission who also had meetings with indicted individuals during the last proceedings has continued to participate in the evaluation of Cetina’s candidacy, notwithstanding the fact that he lacks impartiality to assess the implications of Cetina’s relationship to the indicted individuals.  To ensure the credibility of the proceedings, the president of the commission should have recused himself.

 

Failure to Collect Basic Information About the Candidates

The Commission has failed to collect basic information needed to ascertain whether the candidates’ fulfil the requirements for assuming the position of prosecutor general.  While the Commission has solicited the candidates’ CVs for the purpose of verifying their work history, it has not required the candidates to share a list of cases on which they have worked, whether as judges, prosecutors or lawyers in private practice.[i]  Such information would have been required by the questionnaire proposed by the Center.[ii]  A review of the candidates’ past cases would contain information about alleged conflicts of interest, malpractice or other improprieties. Additionally, it would enable the Commission to independently verify the candidates’ statements about their experience.

The questionnaire used by the Commission requires information demonstrating that the individual has not been sanctioned by relevant disciplinary bodies or has a criminal record.  It does not require the disclosure of information on pending proceedings before disciplinary bodies or civil proceedings.  Nor did it require the disclosure of personnel records that would have contained information on their past performance in government service.  

While it is clearly important for the candidates to have an opportunity to respond to any allegations – and any intentionally false allegations could give rise to legal liability – there are no grounds for rejecting potentially relevant information simply due to the fact that legal proceedings may be pending.  To the contrary, if a candidate is selected who is the subject of a pending civil or ethical complaint without explanation or clear evidence that the proceedings is ill-founded, it would jeopardize his or her credibility in office and raise serious concerns about the quality of the proceedings to vet the candidates.

 

Failure to Publicly Address Allegations of Serious Wrongdoing

The Center for Human Rights monitored the interviews conducted by the Commission and found that they failed to ask simple questions needed to ascertain the candidates’ suitability, such as asking the candidates to respond to public allegations of misconduct.  The procedure was limited to open questions lasting no more than twenty minutes per candidate.[iii]

A review of publicly available records by the Center found a number of candidates alleged to have engaged in misconduct, including prosecutors bringing frivolous criminal charges and lawyers in private practice alleged to have illegally titled land or registered companies, latter accused of tax evasion.  Such concerns where not addressed during the public hearings, even in cases where these concerns have been raised in the press.

 

Failure to Evaluate the Candidates in an Objective and Reasonable Manner

The final grading of the candidates does not meet international standards for an objective and reasonable process for evaluating employees for government positions.  Some candidates were given the full 25 points for criminal experience notwithstanding the fact that they either had limited criminal trial experience or, based on their submission to the Commission, may have had no trial experience at all.  These candidates received the same score as a judge and prosecutor who each had over 15 years of criminal experience.  Criminal trial experience is essential to overseeing the work of the prosecutors under the direction and control of the Prosecutor General.

 

Recommendations

Due to a variety of concerns about the way the proceedings were conducted, the Guatemalan public does not appear to have confidence that the candidates are likely to be selected because of their qualifications.  If these concerns are not addressed, the international community may not have confidence in the independence of the new prosecutor general.  This would undermine cooperation on efforts to combat transnational crime.

To address these failings, the ABA Center for Human Rights makes the following recommendations:

(1)  The postulation commissions should immediately undertake measures to make additional information about the final six candidates’ backgrounds public so that all interested persons can evaluate the candidates based on objective and transparent information.  Such information will help ensure that all potential conflicts of interests and other concerns are fully vetted and will lead to increased public confidence in the outcome of the proceedings.

(2) The Commissions should require the final six candidates to provide a list of all cases on which they have worked as attorneys – whether as a judge, prosecutor or representative – and any case to which they have been a party.

(4) The final six candidates should publicly provide responses to the following questions:

           

(a)    Have you ever been asked or ordered to recuse yourself from a case, investigation or other legal matter?

(b)    [For candidates who are or have served as judges] Have you ever had a decision you issued overturned on appeal?

(c)    [For candidates who are or have served as prosecutors] How many cases have you investigated?  How many resulted in prosecutions?  How many resulted in convictions?

(d)    Do you have any relatives, business associates or clients who are currently the subject of an investigation or prosecution by the Public Ministry?

(5) CICIG should review the candidates’ financial records for evidence of inappropriate activities or unexplained income.[iv]  

 

Conclusion

Guatemala has faced unprecedented challenges to the rule of law over the last fifty years as a result of, among other issues, decades of internal armed conflict and the illicit drug trade.  Despite these challenges, significant strides have been made in recent years to strengthen the judiciary and the Public Ministry.  However, the credibility of these institutions depends greatly upon the transparency and objectivity of the postulation commissions.  Given the failure of the Commission to collect relevant information, address allegations of serious wrongdoing or comport itself in a manner that ensures independence and impartiality, additional vetting of the final six candidates by an independent entity is needed to ensure that the new prosecutor general meets the highest ethical standards and is not compromised by associations with organized crime.

 

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Endnotes

  1. The conclusions of this report have not been reviewed or approved by the ABA House of Delegates and should not be construed as ABA policy.
  2. Letter of ABA President Silkenat to Guatemalan President Otto Fernando Pérez Molina expressing concern that proceedings to select a new prosecutor general in Guatemala were marred by irregularities (May 5, 2014) (Spanish), https://www.americanbar.org/content/dam/aba/administrative/human_rights/jd_otto_fernando_guatemala.authcheckdam.pdf.
  3. See. See. Postulation Commission, Application form for registration as a postulant to the PG of the Republic and Head of the Public Ministry, http://www.oj.gob.gt/phocadownload/comisionfiscal/Formulario.pdf
  4. See also: Postulation Commission, Guide for the elaboration of the curriculum vitae for candidates to prosecutor general of the republic and chief of the public ministry for the period 2018-2022,
  5. http://www.oj.gob.gt/phocadownload/comisionfiscal/Gu%C3%ADa%20para%20Curriculum%20para%20Fiscal%202018.pdf.
  6. id.
  7. See.  Postulation Commission, Schedule of Activities,
  8. http://www.oj.gob.gt/phocadownload/comisionfiscal/Cronograma%20de%20trabajo.pdf.
  9. The Inter-American Commission has noted that justice operators, such as prosecutors, are essential to the realization of fundamental rights guaranteed by the American Convention on Human Rights including access to justice and due process of law.  Therefore, State parties to the Convention have an obligation to ensure their independence, including through procedures that ensure that their appointment is merit-based.  Inter-American Commission on Human Rights, Report on Guarantees for the Independence of Justice Operators, paras. 1-5, February 2014.
  10. Guatemala ratified the Convention in 1978 and acceded to the contentious jurisdiction of the Inter-American Court of Human Rights in 1987.
  11. I/A Court H.R. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary Objection, Merits, Reparations and Costs. Judgment of August 5, 2008. Series C No. 182, para. 206.
  12. Inter-American Commission on Human Rights, Report on Guarantees for the Independence of Justice Operators, para. 80.  February 2014.
  13. Id.
  14. Due Process of Law Foundation, Selecting the Very Best: The selection of high-level judges in the United States, Europe and Asia, at 40, (2013) [hereinafter Selecting the Best], http://www.dplf.org/sites/default/files/selection_high_level_judges_en.pdf.
  15. Id. at 11.
  16. Selecting the Best, at 4.   
  17. Id.
  18. The transcript of the hearing along with the candidate’s legal writing and answers to the congressional questionnaire are available on the website of the Senate Judiciary Committee.  See e.g. http://www.judiciary.senate.gov/nominations/SupremeCourt/KaganIndex.cfm#Questionnaire.
  19. See. ABA Standing Committee on the Federal Judiciary, What it is and How it works (2009).
  20. See. International Commission Against Impunity in Guatemala, Press Release 023, Parallel Commissions
  21. Case (February 2018), http://www.cicig.org/index.php?mact=News,cntnt01,detail,0&cntnt01articleid=878&cntnt01returnid=67.
  22. Id.
  23. Héctor Silva Ávalos, Felipe Puerta and Kelly Grant, University Deans and Guatemala’s Convoluted Road to a New Prosecutor General, Insight Crime (April 2, 2018) https://www.insightcrime.org/investigations/university-deans-and-guatemalas-convoluted-road-to-a-new-attorney-general/.
  24. Supra notes 4 and 5.
  25. Fifth Meeting Nomination Commission (February 19, 2018). See video in:  http://www.oj.gob.gt/videoplayer/player/quinta%20reunion.html.   
  26. See Hearings of the Postulation Commission, 12th (http://www.oj.gob.gt/videoplayer/player/doceava%20reunion.html), 13th (http://www.oj.gob.gt/videoplayer/player/treceava%20reunion.html) and  14th (http://www.oj.gob.gt/videoplayer/player/catorceava%20reunion.html) public hearings held during the 3rd, 4th and 5th of April 2018.
  27. Some interviewees claimed that the Law on Banks and Financial Groups (Ley de Bancos y Grupos Financieros Decreto No. 19-2002) prevents such a review of financial records.  Available at http://banguat.gob.gt/leyes/2002/bancos.pdf.  Article 63 of that law prohibits the disclosure of financial information by bank employees except under narrow circumstances.  The law does not prohibit the voluntary disclosure of the records by the owner of the accounts for the purpose of evaluating their suitability to serve as the highest ranking law enforcement officer in the country.

 

 

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