Judicial immunity: a double-edged sword in Guatemala*

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.

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