Hannah Jane Ahern** and Ursula Indacochea***
On February 1, 2021, Judge Erika Lorena Aifán Dávila, judge for the First Criminal Court of First Instance, Na and Crimes against the Environment of the department of Guatemala with competence to hear High Risk Proceedings, Group D, issued an arrest warrant against former judge Mynor Mauricio Moto Morataya, at the request of the Special Prosecutor’s Office against Impunity (FECI). Moto was being investigated for the crime of conspiracy to obstruct justice, in the framework of the case known as «Parallel Commissions 2020,» a high profile case of corruption and manipulation in the high court election process that took place last year. Moto is a key figure in that complex case of co-optation of justice, and until shortly before his capture was ordered, he served as judge for the Third Criminal Court of First Instance, Narcoactivity and Crimes against the Environment.
In her position, Judge Aifán oversees cases of atrocities committed during the armed conflict, macro-corruption, and other high impact crimes, which has exposed her to threats of violence, harassment, smear campaigns, and other attempts to hinder her work. Recognizing the threats, pressures and reprisals she has faced, the Inter-American Commission on Human Rights (IACHR) has previously granted her precautionary measures, ordering the State of Guatemala to protect her life and integrity. Aifán is widely recognized as an anticorruption champion, not only in Guatemala, but also internationally; most recently, she is a recipient of the 2021 International Women of Courage award from the U.S. State Department.
The arrest warrant issued against Moto caused a stir, as it came after he was elected by the Guatemalan Bar Association as magistrate to the Constitutional Court of Guatemala, and was irregularly sworn in by Congress on January 26, 2021. Precisely in order to serve in his new position, Moto requested the Guatemalan Council of the Judiciary to place him on «leave of absence» from his position as criminal court judge until April 13, 2021, a request which was granted. Therefore, when Aifán ordered his arrest, Moto was no longer serving as a judge, nor had he yet assumed the position of magistrate of the Constitutional Court.
Despite this, Moto invoked the protection of judicial immunity, and attacked the immunity of Judge Aifán, in order to fight his arrest warrant. In an antejuicio request (Guatemalan legal procedure to remove immunity from a judge) filed before the Supreme Court on February 5, 2021, Moto argued that the arrest warrant issued against him violated the guarantee of judicial immunity that protects judges, even though it was issued while he was on leave of absence. In other words, Moto invoked his right to judicial immunity as the basis for the attempt to strip Judge Aifán of this same immunity – the right of antejuicio proceedings – seeking the Court’s authorization to prosecute her.
Who is right? To answer this question it is useful to understand the nature and limits of this guarantee according to international standards.
Judicial immunity as a guarantee of judicial independence from external pressures
The principle of judicial independence is recognized as international custom and general legal principle, enshrined in instruments of international law. Articles 8 («Judicial guarantees») and 25 («Judicial protection») of the American Convention on Human Rights establish the right of every person to have access to judicial remedies and to be heard by a competent, independent and impartial tribunal when he or she considers that his or her rights have been violated. International law has developed specific guarantees for judges to protect their ability to exercise their functions independently. These standards emphasize the obligation of States to grant «guarantees flowing from the principle of judicial independence» to judges, including guarantees against external pressures.1
Along these lines, international human rights protection systems have recognized the need to prevent sanction mechanisms or litigation from being used to harass or threaten judges for the exercise of their functions or as a tool of pressure to influence their work as arbiters of justice – in essence, the need to establish rules of immunity to protect them. Guarantees such as the right of antejuicio proceedings in Guatemala are intended to protect the independence of judges and prevent attempts to exert undue influence on them to affect their decisions. Along these lines, the Universal Charter of the Judge establishes that
Both civil actions directed against a judge, when admitted, and criminal actions, and, if applicable, detention, must be exercised under conditions that cannot have as an objective any influence on his jurisdictional activity (emphasis added).2
Last year, in a landmark ruling, the European Court of Justice (ECJ) found that Poland violated the principle of judicial independence by adopting a new disciplinary regime that did not adequately protect judges from external pressures and attempts at control by the ruling political party.3 The decision, which suspended the disciplinary regime in question, clearly states that national disciplinary procedures for judges are included in the scope of that obligation.
Judicial immunity as functional immunity
But what is the scope of judicial immunity as a guarantee against external pressures? Does it protect judges against any accusation, at any time and under any circumstances? To answer this question, it is necessary to consider the way in which immunity has been defined by the instruments and pronouncements of specialized human rights protection bodies. In her 2014 report before the United Nations Human Rights Committee, the Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, elaborated on various standards and principles on judicial accountability. In the aforementioned report, she states that «[j]udicial immunity is intended to protect legal professionals from harassment by personal litigation against them in connection with their judicial functions.4
Both the universal and European human rights systems recognize that judicial immunity is linked to the position of judge, and not to the individual who holds it. They have emphasized that it is a functional guarantee, which protects an individual holding the position of judge from external pressures to which he or she may be subjected because of that position. The protection afforded by judicial immunity shields judges from legal actions against them that seek to affect their independence – either as a repercussion for a decision already issued, or as a mechanism to pressure them to adopt a certain position or rule in a certain way. As early as 1994, the Committee of Ministers of the Council of Europe had already stated the same to the European States in its Recommendation No. R (94) 12 on the independence, efficiency and role of judges, and reiterated the same in 2010, in the sense that «[w]hen not exercising judicial functions, judges are accountable under civil, criminal and administrative law in the same way as any other citizen.”5 Along the same lines, the Venice Commission has pointed out that judges
…must be protected against undue external influence. To this end they should enjoy functional (but only functional) immunity (immunity from prosecution for acts performed in the exercise of their functions, with the exception of intentional wrongdoing, e.g., taking bribes)» (emphasis added).6
Judicial immunity is one of the guarantees against external pressures, and its ultimate purpose is to ensure the independence and impartiality of judges. This is what the United Nations Special Rapporteur on the Independence of Judges and Lawyers points out when she explains that
The principle of the independence of the judiciary is not intended to benefit the judges themselves but to protect individuals from abuses of power and to ensure that court users are offered a fair and impartial hearing (emphasis added).7
Judicial immunity as a limited immunity
A very relevant point when analyzing the scope of judicial immunity is to understand that it constitutes an exception to the principle of equality before the law, since it grants a differentiated protection to a certain category of subjects – judges and magistrates – which is justified, precisely, by the need to preserve certain essential conditions for the position they hold. All citizens must legally answer for the consequences of their actions; however, in the case of individuals who exercise the judiciary or the magistracy, judicial immunity guarantees that they can only be prosecuted or tried after a prior decision authorizing it.
This exceptional nature of judicial immunity determines precisely that the interpretation of its scope must be strict and not extensive, otherwise we would be faced with a differentiated treatment that is not justified by an examination of proportionality, therefore, arbitrary, unconstitutional and unconstitutional. A proper interpretation must lead to recognize the protection of judicial immunity only when it is linked to the exercise of the office, that is, only when it can satisfy its purpose of protecting the individual who holds the office of judge against external pressures that seek to affect his or her independence and impartiality.
International standards also establish that the guarantees of independence enjoyed by judges are not absolute, but limited, and that judicial immunity does not mean total immunity, much less impunity. In a democratic regime, justice operators must be accountable to the society they serve. This is emphasized by the Special Rapporteur in her report when she points out that
While it is important that justice operators have some degree of criminal immunity in the exercise of their professional functions to protect them from unwarranted prosecution, immunity should never apply to cases of serious crimes, including allegations of corruption. Judicial immunity has to be limited and serve its purpose of protecting the independence of justice professionals; (…) Therefore, to safeguard the independence of justice operators, accountability mechanisms and procedures should have a restricted application…. Indeed, judicial independence and immunity do not mean impunity and unaccountability (emphasis added).8
The Venice Commission agrees with this principle of limited judicial immunity, and makes a distinction between judicial immunity – a necessary guarantee of protection against civil suits for bona fide acts committed in the work of judges – and «general immunity» which they do not enjoy:
c]ertainly [judges] need protection from civil suits for actions taken in good faith in the course of their duties. However, they should not benefit from a general protective immunity from prosecution for criminal acts for which they should be liable in court (emphasis added). 9
In no way can the principle of immunity from prosecution be considered an absolute immunity from criminal charges. That is why jurisdictions require that an independent authority examine the seriousness of the allegation in order to proceed to authorize a criminal investigation and prosecution. This is especially true when judges are involved in serious criminal conduct, such as judicial corruption.
International standards establish that judicial immunity constitutes one of the guarantees enjoyed by judges and magistrates as a protection of their independence from external pressures. Judicial immunity is a functional immunity, i.e., it protects judges – because of the function they perform, and its purpose is to safeguard the conditions necessary for them to perform that function. Consequently, it is a guarantee linked to the office, and not to the person. Furthermore, recognizing that judicial immunity is limited, we can understand that it is not synonymous with impunity, much less with respect to serious crimes such as corruption, which is precisely the crime for which Moto is being investigated.
Returning to this case, it is paradoxical that former judge Moto seeks to protect himself from criminal investigation, invoking a guarantee that no longer accompanies him, precisely because he himself decided to request his leave of absence from the position of judge. It is even more paradoxical that he seeks to affect the immunity of a judge with the same argument. Extending the protection of immunity to individuals who have disassociated themselves -even temporarily- from the exercise of the function, would imply recognizing them an unjustified privilege with respect to the rest of the people, and a license to conduct themselves with impunity. To invoke the protection of this guarantee in such conditions is to defraud its purpose, and to use this figure to achieve an undesirable impunity.
On March 1, in the framework of another case and in accordance with the standards mentioned here, the Supreme Court of Justice confirmed that Moto is no longer a judge, and therefore, does not enjoy the right of pre-trial that protects judges in Guatemala.
This post is dedicated to all justice operators in Latin America who fight against corruption day in and day out, even in the face of constant threats and harassment.
* DPLF provided a letter with the standards contained in this article to the honorable Supreme Court of Justice of Guatemala during proceeding for the resolution of the aforementioned antejuicio request.
** Program Officer, Due Process of Law Foundation – DPLF
*** Director of Judicial Independence Program, Due Process of Law Foundation –DPLF
Photo: AP Images/Moises Castillo
 Corte IDH, Caso del Tribunal Constitucional Vs. Perú. Fondo, Reparaciones y Costas. Sentencia de 31 de enero de 2001, Serie C No. 71, párr. 73-75
 Estatuto Universal del Juez, Art. 10 Responsabilidad civil y penal, Canarias 2001
 Véase Case C-791/19 R European Commission v. Poland, Order of the Court (Grand Chamber) of 8 April 2020, EU:C:2020:277
 ONU Consejo de Derechos Humanos, Informe de la Relatora Especial sobre la independencia de los magistrados y abogados, Gabriela Knaul, 28 de abril de 2014, A/HRC/26/32, párr. 52, disponible en:https://undocs.org/es/A/HRC/26/32
 Council of Europe, Judges: independence, efficiency and responsibilities. Recommendation CM-Rec (2010)12 and explanatory memorandum adopted by the Committee of Ministers of the Council of Europe, 17 November 2010,para. 71.
 Venice Commission, Report on the Independence of the Judicial System – Part I: The Independence of Judges, CDL-AD (2010) 004, para. 61.
 ONU Consejo de Derechos Humanos, Informe de la Relatora Especial sobre la independencia de los magistrados y abogados, Gabriela Knaul, 28 de abril de 2014, A/HRC/26/32, párr. 59, disponible en:https://undocs.org/es/A/HRC/26/32
 ONU Consejo de Derechos Humanos, Informe de la Relatora Especial sobre la independencia de los magistrados y abogados, Gabriela Knaul, 28 de abril de 2014, A/HRC/26/32, párr. 52 y 84, disponible en: https://undocs.org/es/A/HRC/26/32
 Venice Commission, Memorandum – Reform of the Judicial System in Bulgaria: Conclusions, CDL-AD(2003)012, para. 15, sub. a; véase también Joint opinion on the draft law amending the law on the judiciary and the status of judges and other legislative acts of Ukraine, CDL-AD(2011)033, para. 39; Opinion on the Draft Law on Judges and Prosecutors of Turkey, CDL-AD(2011)004, para. 88; Opinion on Act CLI of 2011 on the Constitutional Court of Hungary (CDLAD(2012)009, para. 1