Seven Guilty Berta Caceres Murder Court Signals Others Still at Large

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Today, a Honduran Criminal Court with National Jurisdiction found an active military officer, hitmen and current and former employees of the DESA hydroelectric company guilty of the murder of indigenous rights defender Berta Caceres. Judges found DESA executives planned the March 2, 2016 murder and indicated that others involved remain at large.  Sentencing is scheduled for December 10.

Judges cited evidence that demonstrated DESA’s social and environmental manager, Sergio Rodriguez, used a network of paid informants to monitor Berta’s movements, while DESA’s former security chief, retired military officer Douglas Bustillo, recruited the top-ranking special forces intelligence officer, Major Mariano Diaz, and a criminal cell he managed to carry out the murder.

Since the June 28, 2009, military coup, Berta Caceres frequently denounced the existence of State-sponsored death squads; her murder trial gave a clear illustration of how they operate.  The group led by Mariano Diaz included former soldier Henrry Hernandez, who had previously worked for private security forces employed by the Dinant Corporation, long accused of death squad activities.  Hernandez hired sicarios, street level killers that have proliferated in the drug war, Edilson Duarte, Oscar Torres, and Elvin Rapalo, to carry out the murder under the direct supervision of Hernandez. Hernandez, Duarte, Torres and Rapalo were also convicted of the attempted murder of Caceres’ colleague, Mexican human rights defender Gustavo Castro. Prosecutors had requested conviction of an eighth defendant, Edilson Duarte’s twin brother, on concealment charges, but the court found no evidence that he had knowledge of the crime.

Prosecutors presented judges with communications relating to the murder between DESA Security Chief Jorge Avila, Financial Manager Daniel Atala, and President David Castillo. Castillo is currently in detention and expected to face trial for Caceres’ murder in 2019. Prosecutors cited communications between DESA Board members including Pedro, José Eduardo and Jacobo Atala Zablah.

Berta Caceres’ murder was the culmination of a pattern of persecution by DESA against the organization she coordinated, COPINH, and Lenca communities opposed to the hydroelectric project. GHRC accompanies dozens of indigenous communities in Guatemala and Honduras that suffer similar patterns of violence and criminalization by investors seeking access to natural resources rights handed out over the past decade without regard to existing rights of communities.

COPINH reports that threats against community members who oppose DESA’s ongoing hydroelectric concession grew during the trial, forcing at least one Lenca leader to flee the region.  This may have been fueled by a smear campaign directed against COPINH. As evidence against their clients grew, a Washington based law firm hired by DESA, Amsterdam and Partners, published unsubstantiated accusations of violence by COPINH, putting the organization and its members at risk.  They also published outrageous and demeaning suggestions about Caceres’ sexual life, going so far as to assert that harassing messages sent to Caceres by Bustillo demonstrated the existence of a romantic relationship.

The Guatemala Human Rights Commission (GHRC-USA)  was present in the courtroom throughout the trial, and actively participated in the Legal Observer Mission. While the outcome of the trial reflects the strength of the evidence against the accused, there were concerns about the process, particularly the exclusion of the victims described in GHRC’s preliminary trial observation findings, particularly the expulsion of the victims from the proceedings at the start of the trial.

Before their expulsion, victims proposed two hostile witnesses, DESA employees and brothers, Hector Garcia Mejia and Olvin Mejia.  Evidence in the investigation showed that Olivn Mejia had been the subject of extensive messaging by DESA executives in December 2015, following his arrest for possession of illegal weapons and the murder of a young man in Rio Blanco.  When DESA executives sent an unusually large sum of money to a lawyer following the arrest, the charges against Mejia were inexplicably dropped. State prosecutors allowed Hector Garcia to testify but failed to question them regarding DESA’s network of informants or Mejia’s escape from murder and illegal weapons charges, and allowed him to make unsubstantiated accusations against COPINH without requesting clarification.

Though most of the evidence was gathered in the months following the murder and during the arrests of the accused, the trial did not begin until almost two and half years after the initial arrests. The time limit for pre-trial or preventative detention expired mid-way through the trial and was further extended by the court.

Throughout the preliminary hearings, both the victims and the defense were denied access to evidence by state prosecutors, this occurred even when the Court  ordered public prosecutors to the hand over the evidence. The Court did not sanction the State prosecutors at any time for disobeying orders.

Public prosecutors did not complete the paperwork necessary to allow Gustavo Castro, the only eyewitness and a victim to the crime, to testify in proceedings.

The delay in the start of the trial placed the victims’ in the difficult position of choosing between  risking the release of the defendants based on the expiration of pretrial detention and fully defending due process through a robust engagement in motions challenging problematic rulings.

Despite repeated requests, prosecutors did not present Criminal Conspiracy charges against the accused, which would have facilitated the introduction of evidence that more fully described the activities of the criminal networks responsible for Berta Caceres’ murder.

A large proportion of the evidence gathered was not analyzed by investigators until after the trial was scheduled to begin which made it logistically impossible to integrate that evidence into the trial.

Evidence proposed by the victims that provided important context and information regarding the broader criminal structure that conspired to commit the murder was not allowed by the court, including expert analysis that demonstrated the likelihood of participation additional conspirators.

The victims lawyers were expelled from the trial.  As in most nations in Latin America, under Honduran law it is victim’s right to enter into the legal proceedings as “private accusation.” . This has been key to the advance litigation of human rights abuses in Latin America.  On October 19, the Court convened the parties to open the trial, but the private accusation, in accordance with Honduran law, presented a written explanation that they would not be present because the motion for recusal had still not been resolved and therefore the trial could not legally move forward. At the petition of public and private defense lawyers and the State’s prosecutors, the Court ruled to declare the private accusation, the victims and their lawyers, as having abandoned the case. Their expulsion from the trial raised serious concern amongst national and international legal observers.

The Court proceeded with the trial before pretrial motions had been exhausted, putting the eventual ruling at risk. This includes a constitutional challenge of a ruling against a motion to allow COPINH to participate in the trial as victims.  Most importantly, a final decision regarding the motion to recuse the judges overseeing the trial has not been issued.

The Court has refused to provide audio recordings of the trial to the victims or the public. In addition, a sensitive hearing regarding text messages by DESA executive Sergio Rodriguez was held at a time the court had announced to the public that the trial would be in recess.  Victims were also not notified of the proceeding. This meant the victims and others monitoring trial could not observe the presentation of critical evidence about the involvement of a DESA employee and former employee.