Global Courant
Last weekend the Constitutional Court (CC) did not grant a provisional amparo to the Supreme Electoral Tribunal (TSE), which sought to stop judicial orders that put the electoral process at risk, which, in the opinion of lawyers, will bring new legal actions led by the Public Ministry (MP).
The Special Prosecutor’s Office against Impunity (Feci) has carried out raids on the offices of the TSE and the Seed Movement; It has also confirmed arrest warrants against authorities from the Citizens’ Registry and members of the aforementioned political party.
All the actions are framed within the framework of an investigation that points to apparent illegal activities in the process of formation of the political party, for which reason at the request of the MP, a judge suspended the legal personality of the organization that is currently competing for the presidency in the second round.
Gabriel Orellana, an expert lawyer in Constitutional Law, points out that the way in which the Feci has carried out the investigative procedures threatens the electoral process that set the second round for next August 20.
“When the MP arrived at the Citizens’ Registry, what was the need to arrive with vehicles with covered license plates and their faces covered, doing something unnecessary, because if we spoke among civilized people it could be done discreetly, but here they seek to intimidate, there is a psychological warfare aimed at intimidating TSE officials,” said the lawyer.
But this series of actions, in the opinion of other legal experts, could increase to such an extent that they are no longer just search warrants, but that as a result of the investigations already carried out, it can even lead to pre-trial requests.
The following steps
One of the scenarios envisioned by Zoel Franco, from the Institute of Comparative Studies in Criminal Sciences of Guatemala, IS that the investigations could seek to curb, or even tarnish the image of the presidential candidate of Movimiento Semilla, Bernardo Arévalo.
“I think that by summing up the actions that the MP has carried out, my interpretation is that that is what they are looking for – a pre-trial request – but they have no legal basis for that task,” said Franco, who remembers how Feci herself requested an arrest warrant against an electoral official who enjoys immunity.
Seeking criminal proceedings against one of the two candidates seeking the presidency would be negative for the process, “this would be going against the will of the population that decided to put two political parties in the second round, and this must be respected by any State body,” he added.
A similar reading is held by Ovidio Orellana, former president of the Guatemalan Bar Association and Notaries (Cang), who sees the removal of the immunity of Semilla’s presidential candidate as a probable scenario, due to the doubts that the MP has raised.
“I understand that there are already some arrest warrants for people related to the Semilla party and others could arise, including the possibility of a preliminary trial against the Semilla presidential candidate or candidates,” said the former president of Cang.
Gabriel Orellana, for his part, considers that the MP will think more than twice before submitting a pre-trial request of this magnitude: “the chances of doing it with international pressure and from other sectors, I don’t know, I have a concept that the MP has an iota of intelligence left”.
MP can investigate
In mid-July, the CC issued a provisional amparo in favor of the Movimiento Semilla political party, confirming its participation for the second round and the continuity of the electoral event, although it also stressed that the MP may continue its ongoing investigation.
Due to this, for the lawyers consulted, there would be the possibility that the MP continue with its inquiries without having to interfere with the purity of the electoral event.
“The criminal issue is not limited by the CC, it must be followed by the investigative entity; However, its use to try to limit a party that they consider could affect their interests is where this strategy comes in, which puts any electoral process and democratic exercise in which we all participate at risk,” Franco pointed out.
For this, the MP would need to carry out all its procedures without making specific requirements that concern the authorities in electoral matters, such as the suspension of a political party, he explained.
The former president of the Cang, considers that there are methods so that the investigation does not affect the second round, “the MP should not be urging or seeking judicial decisions, which tend to affect the development of the electoral process (…) it gives the impression that a candidate is not of his opinion and at the expense of any decision that is made with the acquiescence of a judge, that candidate or candidates, in some way do not participate or do not take office.”
Other elements that the sources highlight would allow the investigation to proceed without affecting the process, would be to develop any future raid with order and respect for the electoral authority, which at this time they have not visualized.
They also stress that it would be prudent for the Electoral Crimes Prosecutor’s Office to be in charge of the case, and to take as valid, for a new line of investigation, the complaint that Movimiento Semilla presented for locating a forged signature.
Normal process
For Vivían Dávila, a criminal lawyer, the actions that the MP has undertaken in the present case under investigation that involves a political party, have been developed within the normal framework, without affecting the electoral event, according to her reading.
“The independent investigation of the MP, and according to the circumstances that it has brought to the attention of the general public, and of people who are being persecuted, on whether they would have any repercussions on the electoral event, however, for personal consideration and because of the area in which I practice law, the investigation is taking its normal course,” he said.
Dávila added that “it cannot be suspended for an issue that will lose legitimacy if it is not done in accordance with the law, and without any fact constituting a crime that calls into question the election as such.”
For the criminal lawyer, the way in which the raids have been carried out is normal, since this is the way in which the MP executes these proceedings, “I would think that we would not have to go so far in history and remember that this type of action should not surprise us, because that is the way in which these procedures are carried out.”
