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Guatemala: Repeated attempts to criminalise human rights defenders
On 16 August 2012, human rights defenders Dr Yuri Giovanni Melini Salguero, Messrs Rudy Pivaral, Oscar Morales and Gustavo Martínez and Ms Andrea Marcilia Hernández Melini initiated legal proceedings aimed at overturning the provisional ruling of a judge which declared that they had committed the crimes of “violence against women” and “threats”.
This provisional ruling is the latest in a series of attempts to criminalise human rights defenders seeking to realise the right to free, prior and informed consent in relation to the Escobal Mining Project, located between San Rafael Las Flores, Santa Rosa, and Mataquescuintla, Jalapa.
Yuri Melini was the recipient of the 2009 Front Line Defenders Award for Human Rights Defenders at Risk and is the Director of Centro de Acción Legal, Ambiental y Social de Guatemala – CALAS (the Centre for Legal, Environmental and Social Action in Guatemala), an organisation which works to promote environmental issues, community participation and respect for the collective rights of indigenous communities in relation to environmental concerns.
Rudy Pivaral, Oscar Morales, Gustavo Martínez and Andrea Marcilia Hernández Melini are members of the Comité en Defensa de la Vida y la Paz de San Rafael Las Flores (Comittee in Defence of Life and Peace in San Rafael Las Flores), which promotes the carrying out of community consultations in accordance with the right to free, prior and informed consent.
On 16 August 2012, Mr Rafael Maldonado, a member of CALAS and the legal representative of the aforementioned human rights defenders, submitted a motion for review to Judge Estuardo de Jesús Barrientos Archila, Justice of the Peace of San Rafael Las Flores. It was subsequently rejected by the judge, in contravention of the law, who argued that he did not have to hear the case.
The judge went on to issue a writ against Rafael Maldonado, saying that the lawyer had slandered him and threatening to report him to the relevant authorities should he initiate similar actions in the future. The human rights defenders plan to submit a fresh legal challenge on 22 August.
On 8 August 2012, Judge Estuardo de Jesús Barrientos Archila provisionally ruled that Yuri Melini, Rudy Pivaral, Oscar Morales and Gustavo Martínez had committed the crime of “violence against women”, and that Andrea Marcilia Hernández Melini had committed the crime of “threats”. This conclusion was arrived at in spite of the fact that Yuri Melini has never met any of the 13 women who lodged the official request for protective measures and the other aforementioned human rights defenders are only acquainted with two or three of them.
The complainants allege that the human rights defenders attempted to force them to leave the associations they are affiliated with and that their lives, and the lives of their immediate family members, are at risk due to threats they have allegedly received. Each of the complainants claim that they represent organisations established following the commencement of the process analysing the appropriateness of community consultations.
A number of attempts to criminalise human rights defenders who promote the carrying out of community consultations were made in previous months. On 18 July 2012, a complaint against Andrea Marcilia Hernández Melini was made to the Honour Tribunal of the Bar Association. Ms Gloria Cruz Pivaral, the complainant, claims that Andrea Marcilia Hernández Melini exceeded her authority when she included the term “civil society” in the drawing up of a notarial deed pertaining to a meeting of people that promote the holding of community consultations.
Moreover, on 25 April 2012, a complaint of “usurpation of functions” was made against Rudy Pivaral and Oscar Morales to the Public Prosecutor for Administrative Crimes. The complainant alleges that the human rights defenders committed an offence by representing civil society at the commission established to analyse the appropriateness of the request for community consultations. Both of these cases remain open.
On 12 April 2012, a writ of amparo was submitted against Father Néstor Melgar, who was presented as the representative of the local people requesting that the local authorities consult with those residing in the vicinity of San Rafael Las Flores regarding the mining project. Notwithstanding the fact that only the actions of public authorities, and not of private individuals can be the subject of a writ of amparo, Judge Ligia Aracely Pérez Véliz processed the writ and gave the indicted authority a period of time to respond. The Amparo Tribunal subsequently closed the case.
In October 2011, human rights defender Mr Amadeo de Jesús Rodríguez Aguilar, leader of the Local Committee in the Defence of Life, was accused of “kidnapping”. This accusation was made after he interrupted a meeting between shareholders of the foreign companies financing the mining project and their local representatives in order to explain to the shareholders in English some of the problems being caused by the project.
Front Line Defenders believes that the attempts to criminalise the aforementioned human rights defenders is directly related to their legitimate and peaceful work in defence of human rights, particularly their efforts to realise the right to free, prior and informed consent in relation to the Escobar Mining Project. Front Line Defenders is concerned by what it perceives to be a clear strategy being employed by certain actors who wish to block community consultations, which aims to delegitimise human rights defenders by creating the impression that they do not represent the wider community and by accusing them of criminal acts.