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Rights Action
February 23, 2018
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Mynor Padilla trial (linked to Hudbay Minerals lawsuits in Canada) continues in Guatemala
  • Funds needed: see below
 (Mynor Padilla, standing left, in court with defense lawyers paid, in all likelihood, by Hudbay Minerals.  Since the photo was taken in April 2015, the first lawyer seated to Padilla’s left was assassinated allegedly for his links to the Mexican Sinaloa drug cartel; the third lawyer, to Padilla’s left, is now in jail on charges related to the “La Linea” government corruption syndicate directed by former president Otto Perez Molina and vice-president Roxanna Baldetti, both now in jail.)

Due to the courage of the Mayan Q’eqchi’ victims-plaintiffs from eastern Guatemala and the trail-blazing legal work of Klippensteins Barristers and Solicitors (Toronto, Canada), a growing number of people, activists, donors, and some media, around the world know of the precedent-setting lawsuits working their way through Canadian courts, attempting to hold a Canadian company (Hudbay Minerals and its former subsidiary company CGN) accountable, for the first time ever in Canadian courts, for mining related repression and human rights violations that occurred in another country (Guatemala): gang-rapes of 11 women in the Lote 8 community; targeted killing of Adolfo Ich; shooting-maiming of German Chub.
 
Fewer people know of the Mynor Padilla criminal trial working its way through Guatemalan courts, despite Guatemala’s endemic corruption and repression, including threats against the victims-witnesses and fear and corruption in the judiciary.  Padilla (a former Lieutenant-Colonel in the Guatemalan Army and former head of security for Hudbay/CGN) is on trial for the killing of Adolfo Ich and shooting of German Chub.
 
While these legal proceedings are completely separate, they deal with many of the same facts and incidents.  Angelica Choc (widow of Adolfo Ich) and German Chub are fully involved as plaintiffs in the lawsuits in Canada and as victims-witnesses-accusers in the trial in Guatemala.
 
This article (“Is Justice Possible in Canada or Guatemala for Hudbay Minerals/CGN Mining Repression?”) sets out the background and time-line of the lawsuits in Canada and the trial in Guatemala: http://upsidedownworld.org/archives/guatemala/justice-possible-canada-guatemala-hudbay-mineralscgn-mining-repression/
 
Civil lawsuits - Canada
Many know that over the course of three weeks in November 2017, eleven of the thirteen plaintiffs came to Toronto, Canada, and were intensively cross-examined by Hudbay’s lawyers.  The plaintiffs are very poor Mayan Q’eqchi’ women who speak little to no Spanish; most had rarely travelled to Guatemala City, let alone left their country … in a plane.  Find here links to photo-essays documenting their participation in the examinations for discovery (depositions), and to media coverage: http://rightsaction.org/hudbay-minerals-lawsuits-links-to-news-and-multi-media-reports/
 
The final two plaintiffs – German Chub and Angelica Choc – will come to Canada in July 2018 to be similarly cross-examined (deposed) by Hudbay’s lawyers.  Closer to the date, Rights Action will send out an update and funding appeal for that trip.
 
Criminal trial - Guatemala
Though it has received less public attention, the Mynor Padilla criminal trial in Guatemala is equally as important as the lawsuits in Canada, and in some ways more dangerous and risky given the lack of democracy, endemic corruption and repression in Guatemala.  Moreover, this precedent setting criminal trial has become increasingly complex.
 
Rights Action seeks funding to enable Angelica and German to see the criminal trial through to the end.  (See below: The next phase is a judicial review before the CSJ (Supreme Court of Justice) of the decisions of the trial and appeal courts).
 
Role of Hudbay in the criminal trial: The criminal trial has become even more complex because Hudbay is allegedly involved not only in funding but also directing Padilla’s defense, even though there would be no legal implications for Hudbay were Padilla to be found guilty.
 
Timeline and key developments
(From the article mentioned above)
 
Fugitive from justice, on Hudbay/CGN payroll: Though there was a capture order issued against Padilla immediately after the September 27, 2009, killing of Adolfo and shooting of German, he continued to work openly as head of security for Hudbay/CGN for at least a year.  He would not be captured for 3 years.
 
Padilla captured, September 2012: Under increased international attention, in part due to the lawsuits in Canada, Padilla was captured and held without bail.
 
Intimidations, threats and attacks: Since 2013, Angelica, German, the Lote 8 women, and their family and community members, have received regular threats and harassment from people working for or linked to CGN and/or the family of Padilla.  (There have also been direct attacks – see below).  In the context of Guatemala’s historic repression and impunity, these are always threatening.
 
“Concocted stories”: The people threatening and intimidating Angelica, German and the Lote women, make statements similar to those made by Padilla’s lawyers in Guatemala and by Hudbay in Canada - that German, the 11 women and Angelica have “concocted” their stories of mining repression so as to win financial settlements in the lawsuits in Canada.
 
Trial begins, April 2015: The Padilla criminal trial began in a Puerto Barrios courtroom presided by Judge Ana Leticia Pena Ayala.
 
Who pays Padilla lawyers?  Who sets their legal strategy?:  It is widely suspected that Hudbay is paying for Padilla’s team of well-connected defense lawyers, though Hudbay refuses to clearly clarify this publicly.  If true, why is Hudbay paying Padilla’s defense?  Is Hudbay directing Padilla’s defense strategy from Canada?  Why is Hudbay intervening in the trial in Guatemala, when the outcome has no legal implications for Hudbay?
 
Padilla lawyer assassinated, June 3, 2015: One of Padilla’s lawyers, Francisco Jose Palomo Tejada, was assassinated by a hit squad in Guatemala City.  Besides representing Padilla, Palomo was a lawyer for general Rios Montt, found guilty of genocide against the Mayan Ixil people during the worst years of U.S.-backed repression and genocide.  Palomo’s assassination was allegedly linked to his work with a drug trafficker (Marllory Chacón, the “Queen of the south”, now in jail in the U.S. on drug trafficking charges) who laundered money for the Mexican Sinaloa drug cartel.
 
Hudbay intervenes in Padilla trial, September 1, 2015: John Terry, a senior partner at the Tory’s law firm, gave “expert testimony” in the Guatemalan courtroom about the Hudbay lawsuits in Canada.  Terry was paid by Hudbay for “many hours of work” to appear.  Terry’s testimony was, according to people involved in the legal proceedings in Guatemala and Canada, misleading and selective.
 
Motion to remove Judge for discrimination and partiality, January 20, 2016: A motion was filed that Judge Ana Leticia Peña be removed on grounds of racial discrimination and partiality against the Q’eqchi’ victims/ witnesses/ accusers, partiality in favour of Padilla.
 
Motion dismissed on technicality, January 27, 2016: Citing a procedural technicality and commenting on the merits of the arguments against the Judge, an appeals court ruled against the motion to remove.
 
Trial closed to public, February 8, 2016: Judge Pena ruled to continue the trial behind closed doors due to alleged “security threats” against herself and the prosecution!  Angelica and German, who have actually received many threats, did not request this measure and do not agree with the Judge’s “justification”.  The trial continued behind closed doors until the end.
 
Padilla lawyer charged with crimes linked to organized crime, February 12, 2016: A second defense lawyer, Frank Manuel Trujillo Aldana, was charged with illicit association, bribery, influence-trafficking, obstruction of justice and collusion linked to the “la linea” organized crime network headed by former President Otto Perez Molina and Vice-President Roxana Baldetti, that stole $120,000,000 in public funds.  Perez Molina and Baldetti were forced to resign from office in 2015 and are in jail.
 
Angelica Choc’s home shot up, September 17, 2016: Unidentified men opened fire on Angelica’s tiny home in El Estor as she slept with two young children. Bullet holes were found in the walls, and bullet casings scattered outside.  Though initially investigated by the police, there was no follow-up.
 
After this attack, Angelica’s Canadian lawyer Murray Klippenstein commented:
“The fact that Angelica’s house was shot at just before the Guatemalan criminal court is to decide whether the former head of mine security is criminally responsible for the brutal killing of her husband is no coincidence. It is meant as a signal to all involved, including the judge who must decide whether Mr. Padilla is guilty.
 
“I am very concerned that Hudbay’s continued irresponsible defence of both the civil lawsuits in Canada and the criminal prosecution in Guatemala have done nothing to dissuade this kind of attack in Guatemala against our clients, and in fact their failure to own up to what happened in the past and take steps to punish those responsible make it more likely this will happen again, but maybe much worse.”
 
Padilla acquitted of all charges, April 6, 2017: The Judge ordered Padilla’s immediate release from detention; she apologized on behalf of the justice system for his detention; and, to top it all off, ordered criminal investigations for obstruction of justice, perjury and coercion of witnesses to be initiated against: Angelica Choc, Angelica’s children and sister (witnesses to Adolfo’s murder), other victims of Hudbay security guard violence, expert witnesses called to give testimony, and the prosecuting lawyers from the Attorney General’s office.
 
Yes, you read this correctly!  While freeing the killer, the Judge aimed to turn the victims of mining repression into the accused.
 
Appeal court overrule, September 14, 2017: In a correct, but surprising decision (given Guatemala’s entrenched corruption, racism and impunity), an appeal court completely overturned the April 6, 2017 ruling, and ordered a re-trial by a new court with three judges.
 
Judicial review: Padilla’s lawyers then presented a “casacion” motion to the Supreme Court of Justice (CSJ), seeking a judicial review of the trial court decision and appeal court overturn.  There are forthcoming hearings to address the “casacion” motion, though the dates are not yet set.  If Padilla’s arguments are successful, the trial court’s (stunningly awful) decision will be reinstated.  If Angelica and German are successful, the appeal court decision is upheld, and there will be a complete re-trial.
 
Accompaniers: When this judicial review hearing takes place, the courtroom will be open to the public in Guatemala, and Angelica and German will, in all likelihood, be wanting human rights accompaniers to join them.
 
Criminal investigation into Judge’s ruling: Separately, it is quite possible a new criminal investigation will be initiated into Judge Ana Leticia Peña’s trial court ruling, due to the irregularities and errors in her ruling.  There are suspicions of corruption and possible payoffs to the Judge (unfortunately common in Guatemala), but these allegations will not form part of this initial criminal investigation into her compromised ruling.
 
Stay tuned for this possibly explosive investigation.
 

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Funding needs

For the “casacion” (judicial review) motion, Rights Action is seeking $15,000 to pay for:
  • The work of the lawyers of Angelica and German preparing arguments to respond to the “casacion” motion of the defense, and then to present the arguments in CSJ hearings.  Funds cover: honorariums for the lawyers; their costs (travel, room and board); and trial documents and filings: $12,000
  • The participation of Angelica and German (and family and community members) in the actual judicial review hearings, when the lawyers for both sides present their arguments.  Funds cover: travel, room and board: $3,000
Rights Action’s role
Since 2004, Rights Action has been funding and supporting the Q’eqchi’ people of the mining harmed communities of El Estor, Izabal, as they work and struggle for community development, defense of the environment and human rights.  Since 2010, Rights Action has been funding and supporting the civil lawsuits in Canada and the criminal trial in Guatemala.
 
Please send questions and comments.
Grahame Russell, director Rights Action
info@rightsaction.org
 
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Make check payable to "Rights Action" and mail to:
  • U.S.:  Box 50887, Washington DC, 20091-0887
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Human rights delegation to Guatemala: “Real life super heroes and the quest for mining justice in Canada and Guatemala”
Please join a Rights Action / MIR Centre for Peace educational human rights delegation to Guatemala.
Dates: Saturday, June 9 - Sunday, June 17, 2018
Complete information: info@rightsaction.org.
 
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