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Criminalidad y Justicia

Guatemala has 15 public defenders to serve 6.5 million indigenous residents

Guatemala’s national justice system fails to guarantee due process to thousands of people who don’t speak Spanish. Despite this, the country’s most conservative groups oppose constitutional reforms that would recognize alternative systems of indigenous justice, an ancestral tradition that has shown to be effective.
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7 Abr 2017 – 02:50 PM EDT
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Guatemala’s national justice system fails to guarantee due process to thousands of people who don’t speak Spanish. Despite this, the country’s most conservative groups oppose constitutional reforms that would recognize alternative systems of indigenous justice, an ancestral tradition that has shown to be effective.

Fog envelops the mountains surrounding Nebaj, a municipality in the highlands of western Guatemala, 225 kilometers from the capital. Penetrating the dense, white mist that is typical of the region is the only way to reach the municipality’s center.

Some 98,000 people live in this community in the department of Quiché. Ninety-five percent of them are indigenous. The predominant language here is Ixil, one of 22 indigenous languages spoken in Guatemala.

The public defender assigned to work in Nebaj is one of 15 attorneys from the Institute of Criminal Public Defense, or IDPP, the country’s public defender’s office, who represent indigenous Guatemalans across the country. But in Nebaj, as in five other localities, the government-appointed defense attorney doesn’t speak the local language – only Spanish. Yet these positions were created specifically to help people in their native languages. And they are supposed to have a deep understanding of local villages’ cultures and practices.

Like public defender’s offices in other countries, the IDPP appoints defense attorneys to those who can’t afford private ones. Fifteen offices that have an intercultural focus – each of them with an attorney on staff – are tasked with providing the fundamental right to a defense for the 40% of Guatemalans who describe themselves as indigenous. That’s about 6.5 million people, most of them living in poverty, according to the National Statistics Institute.


But these local public defender’s offices face a series of challenges that include budget constraints, bilingual lawyers uninterested in the work of public defense, forced appointments in some municipalities because the job must be filled, heavy caseloads and bad translations.

Heavy caseloads

The IDPP’s office in Nebaj is located across from the local prosecutor’s office, in the basement of the judiciary building. Karen Cashely Cárdenas Reyes was assigned to that office as public defender last June. She speaks only Spanish, has been a trial lawyer since 2014, and all of her experience before coming to Nebaj was in Coatepeque, Quetzaltenango.

“My role is to study the criminal cases of people who don’t have the money to pay for a defense attorney and who have been accused of a crime,” Cárdenas said while sitting at her desk, which is pushed up against a window next to a bookshelf filled with case files.

The files contain information on Nebaj residents, along with defendants from Chajul, Cotzal, Sacapulas, Cunén, Uspantán and Chicamán. These are other Quiché municipalities under the jurisdiction of the same public defender’s office. In these seven villages, residents speak the Mayan languages of Ixil, K’iche’, Uspanteko and Sakapultek.

Cárdenas currently is defending 67 people, including 11 who are in preventive detention. The most common criminal charges she sees are rape, violence against women and failure to pay alimony and child support.


To manage each of these cases, the defense attorney has an assistant, an Ixil translator and a vehicle to travel to neighboring villages and other municipalities. In total, according to IDPP statistics, 202 cases were handled in Nebaj last year.

“In court there is one person who speaks K’iche’ and one who speaks Ixil. We’ve never had to wait for an interpreter to come, because normally defendants are bilingual. They speak Spanish and another language,” Cárdenas said.

Several signs with biblical passages, bright colors and university crests offer private legal services in the village. The ads are painted on walls lining the streets near the offices of the IDPP, the prosecutor’s office and the courts. One of the signs belongs to Cornelio Benjamín Santiago Ceto, an indigenous lawyer who speaks Ixil. Since 2011, he has practiced law in the municipalities of Quiché, Huehuetenango and Quetzaltenango, but mainly in his hometown of Nebaj.

Santiago has litigated criminal cases on both sides of the courtroom. That has allowed him to study the work of public defenders. His opinions on the issue are the opposite of Cárdenas’.

“Certain things should be improved, for example, the language barrier,” Santiago said. “It’s a weakness that affects people’s rights.”

Santiago said it’s important to establish communication and trust between defense attorneys and their clients. He said that if the two don’t speak the same language, any defense would be ineffective. Santiago laments that in this predominantly indigenous region, not a single public defense attorney speaks Ixil. But he is also critical of the use of translators, because accurate translations don’t always happen.

In some court hearings, he said, translators fail to accurately communicate a defendant’s testimony or they leave out important details that could have a detrimental effect on a case.

As to providing an adequate defense with such a large number of cases in Nebaj, Santiago said it is “impossible.”

He explained why: “First I conduct an interview with my client about the crime they are charged with. Then I take one or two days to read the case file provided by the prosecutor. This first read-through is to learn about the case, and the second one is to compare [the prosecutor’s allegations] to my client’s version of events. Then I conduct another interview, and if necessary, a third one to define what will be presented in court. Public defenders don’t have time to do all that,” Santiago said.

He charges different fees for each phase of a case. A plea hearing can cost between 1,000 and 5,000 quetzales ($136-$680). As the case goes to trial, Santiago charges 10,000 quetzales ($1,360) per hearing. The amount varies according to the crime and the complexity of the case. Santiago has worked cases of fraud, homicide, violence against women and rape.

Karen Cárdenas carefully selects her words, especially when asked about the shortcomings of public defense.

“What we do is work outside of normal hours, we finish pending tasks. If we can do the work, we do it,” she said when asked about excessive caseloads and the time dedicated to each one.

To provide a personalized, technical defense, Cárdenas said, at least two lawyers should be working in the office.

“That would be ideal, but to make up for that weakness, they provide us with an interpreter to translate for the lead attorney,” she said.

Not knowing, not understanding

Having a public defense attorney who knows the local language is important to avoid what happened to Petrona Xol, a 63-year-old Q’eqchi’ woman who has been imprisoned for the past 12 years for a crime she says she didn’t commit.

In June 2004, a criminal court in Alta Verapaz sentenced her to 70 years in prison for the lynching of three men. She was convicted despite several witnesses who say she is innocent, and that she was at home when the killings occurred. The presiding judge, however, rejected the testimony of those witnesses because it missed a deadline, according to the Asociación de Abogados Mayas (Association of Mayan Attorneys).

Xol never understood what was happening in the courtroom – not the charges the prosecutor’s office brought against her, the witness testimony, or the court’s verdict. The entire trial was conducted in Spanish, a language Xol doesn’t speak or even understand. Xol communicates only in Q’eqchi’, her native tongue. And not even her defense attorney speaks it.

Her public defender appealed the conviction, but a judge tossed that, too, because it was filed too late. That’s the story of how she ended up in prison.


“I know nothing about the problem they are accusing me of committing,” Xol said at the start of her trial, according to a courtroom translator. She repeated the same statement in 2010 to a journalist who interviewed her in prison. During that interview, Xol said she did not understand why she was imprisoned.

Xol said the same thing to members of the Asociación de Abogados Mayas de Guatemala before they filed a lawsuit seeking an injunction on behalf of indigenous women who are imprisoned where only Spanish is spoken.

“She insisted that she never understood the legal case against her,” association member Cristian Utzin said.

Carmela Curup Chajón, a member of the association, filed the lawsuit. Former Chief Public Prosecutor Claudia Paz y Paz then urged the Supreme Court of Justice to enact changes to benefit indigenous inmates, including Xol.

The attorneys argued that the women’s right to access health care services was violated because doctors couldn’t understand what was ailing them. Also, the women had difficulty understanding the tasks assigned to them, for which they were criticized, mocked and rejected.

Supreme Court magistrates ordered the Interior Ministry to protect the rights of indigenous prisoners through inclusive programs and bilingual personnel. Last February, Petrona Xol was allowed to leave prison for a few days to receive medical treatment for her health problems. But she was promptly returned to the women’s correctional center to continue serving her sentence.

Only 15 lawyers

Like the office in Nebaj, the other 14 public defender’s offices with an intercultural focus have a staff consisting of an attorney, an assistant and a translator. They are responsible for cases in the municipalities around them whether or not linguistic or cultural expertise is needed. They represent clients who are Q’eqchi’, Achí, Kaqchikel, Ch’orti’, Q’anjob’al, K’iche’, Ixil and Mam – eight of Guatemala’s 22 linguistic communities.

The number of people staffed to serve the indigenous population is similar in the prosecutor’s offices and courts. The national Prosecutor’s Office has 35 translators in 14 of the country’s 22 departments, serving 10.3 million people. The judicial branch’s Department of Indigenous Affairs has 101 translators in 13 departments.

In 2016, these 15 public defender’s offices had 1,779 active cases. The office in the municipality of Santa Cruz del Quiché worked 380 cases, while Nebaj had 202. These two offices, like the ones in Chiquimula, Puerto Barrios, Ixchiguán and Mazatenango, lack public defense attorneys who speak local indigenous languages.

How does a lawyer who doesn’t speak an indigenous language work in a public defender’s office with an intercultural focus? we asked Marta Juan Tojin León, who two months ago became the head of Coordinación de Defensorías con Enfoque Intercultural (Organization of Public Defender’s Offices with an Intercultural Focus).

"People are rotated throughout the institution. Job descriptions state that fluency in a particular language is required, but no one responds. So, those posts are filled by career lawyers who don’t speak the language, but understand a village’s social context", she said.

The Attorneys and Notaries Association, the Mayan Attorneys Association and the Supreme Court all lack statistics on the number of indigenous attorneys in the country.

The head of indigenous public defender’s offices also said that one of the disadvantages in looking for more qualified people is that salaries are not competitive. The minimum monthly salary for IDDP lawyers is 10,000 quetzales ($1,350) and the maximum is 15,000 quetzales ($2,000). But the higher salary is paid only after several years on the job. A private attorney like Santiago can earn in a single day at trial what public defenders make in a month.

As of December 2016, 622 public defenders worked in the institution. A little more than half (381) are private attorneys contracted for specific cases to provide free legal assistance. The IDPP does not know how many of those are indigenous and bilingual.

Tojin said she is looking for defense attorneys who speak local languages to send to the offices that need them. So far, only one lawyer has submitted his résumé, but his salary requirements are more than the institution can pay.

A stagnant budget

Compared to the offices of the judiciary and the prosecutor’s office, the Nebaj public defender’s office is tiny, like the budget the Institute of Criminal Public Defense has given it for the past 11 years. Nydia Arévalo Flores, the institute’s director, said that of the three justice bureaucracies, hers is the most underfunded.

“Without public defense, there is no justice,” she said.

This year, the Finance Ministry allotted the IDPP a budget of 205 million quetzales ($27 million) – much less than the 2.1 billion quetzales ($284 million) it gave the judiciary and the 1.7 million quetzales ($231 million) it gave the Prosecutor’s Office. About 60% of the IDPP’s funding is used to pay salaries.

During massive anti-gang police operations in 2016, including “Rescate del Sur” (“Save the South”) and “Guatemala es Nuestra” (“Guatemala Is Ours”), 150 people were arrested and accused of belonging to gangs dedicated to extortion. Most of them required public defenders. But the public defender’s office did not have sufficient staff to do its job and had to hire outside lawyers to help.


Arévalo took over the IDPP in April 2016. “I encountered a woefully underfunded budget that hadn’t changed in seven years,” she said.

To properly function, she added, the institute would need at least 400 million quetzales annually.

Before Arévalo, the public defender’s office was directed for a decade (2004-2014) by Blanca Stalling Dávila, a Supreme Court magistrate who was arrested on Feb. 8 and charged with corruption by the Prosecutor’s Office and the International Commission against Impunity in Guatemala.

Stalling was accused of nepotism at the institute, but it was also during her administration that the project to provide indigenous public defenders was created in 2004.

Institutional setback

Feb. 14, 2017. It’s an hour before the start of the plenary session in Congress in which proposals to reform the Guatemalan Constitution will be presented. One of those reforms aims to legally recognize indigenous systems of justice.

Indigenous lawmaker Amílcar Pop, of the Winaq party, backs the reforms. He also supported and helped implement legislation that created intercultural public defender’s offices in 2001, a plan conceived so that the Institute of Criminal Public Defense could implement the country’s peace accords, signed in 1996.

However, the lawmaker now regrets that the bill has been weakened.

“There was a setback in the institutionalism that had been driving it. The technical capacity to assist a multicultural society was weakened,” he said.

IDPP statistics seem to support his opinion. In 2013, the institute had 13 attorneys who were fluent in an indigenous language. In 2015, the number decreased to 11, and in 2016, it was nine.

The lawmaker believes Guatemala’s judicial system owes a historic debt to the indigenous population that began to be resolved 17 years ago.

“People were irresponsibly convicted who didn’t understand a single word. It was a disaster, and we continue living like that today because indigenous rights aren’t recognized,” Pop said.


In 1995, Pedro Rax Cucul, an indigenous Q’eqchi’ man, was given the death penalty for killing his wife. Following a long process that included the intervention of the Inter-American Court of Human Rights, then-President Alfonso Portillo pardoned Rax after confirming that during trial the court violated his right to a defense by not allowing him to testify in his native language. Rax didn’t understand the case against him and never had a translator.

At the time, courts didn’t have official interpreters. If an indigenous person was arrested and charged with a crime, a bilingual guard would be asked to translate at hearings. That’s how things worked in the judiciary in the department of Totonicapán, according to indigenous attorney Pedro Ixchíu, the former head of the Organization of Public Defender’s Offices with an Intercultural Focus.

The current proposal to reform the country’s judicial system has been stalled in Congress since November 2016. Unlike Pop, lawmakers from conservative parties refuse to recognize the methods of indigenous justice, which have always been practiced in indigenous communities, and acknowledge they have the same legitimacy as the official system.

Nebaj’s two justice systems

Amílcar Pop and Pedro Ixchíu said that Guatemala’s justice system doesn’t reach everyone in the country. In the regions where it is absent, indigenous justice systems exist to maintain harmony in the communities. In other places, both justice systems coexist and coordinate their efforts. One example is the municipality of Nebaj.

Diego Santiago Ceto, indigenous mayor of Nebaj and secretary of the three Ixil regional municipalities – Nebaj, Cotzal and Chajul – said that every year, an average of 300 cases are resolved in the urban area of Nebaj. In the municipalities’ other 147 communities, indigenous authorities resolve conflicts.

Ceto said the work is coordinated with the judiciary, the prosecutor’s office and the National Civil Police. The local system of justice, he said, is applied only with the consent of the accused. If the accused declines, he or she is brought before the regular justice system. The most common cases heard by ancestral authorities are related to land disputes, robbery, marital disputes and offenses in the public way.

Ranulfo Rojas Cetina, a magistrate and former Supreme Court president, was a public defender from 1999 to 2005. He said that although there were translators, in some cases there was not adequate translation because there are subtleties in the languages that led to incomplete testimony or statements.

That’s why it’s crucial for indigenous defendants to have proceedings in their native language, said Petrona Velasco Brito, an Ixil judge at Nebaj’s Peace Court. Most hearings at that court are conducted in Ixil, not Spanish. This is a rarity in the country’s official legal system.

Ceto and Velasco are the face of judicial pluralism in Guatemala. Pop and Ixchíu hope that one day that pluralism will be recognized in the constitution.

But the proposed reforms have prompted a backlash against officially recognizing ancestral justice, and that could once again close the doors on these Guatemalan communities. Making matters worse is the decision by indigenous authorities to take a step back and agree to not insist on the inclusion of their judicial systems in the reforms to avoid blocking other justice reforms.

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