GUATEMALA: ARBITRARY DETENTION OF PRESIDENT OF MAGAZINE EL PERIÓDICO JOSÉ RUBÉN ZAMORA MARROQUÍN

The International League Against Arbitrary Detention urges the Government of Guatemala to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 7/2024 concerning José Rubén Zamora Marroquín, asking the Government of Guatemala to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning José Rubén Zamora Marroquín (Guatemala): Opinion No. 7/2024.

ARRESTED AFTER PUBLISHING ARTICLES ON GOVERNMENT CORRUPTION

José Rubén Zamora Marroquín is a Guatemalan national, born on 19 August 1956. Mr. Zamora is a journalist, and he was the president of the newspaper elPeriódico.

ElPeriódico, under the presidency of Mr. Zamora, reported cases of corruption and impunity across various Guatemalan governments between 2012 and 2023. Considering the context of violence against journalists in Guatemala and since his life and personal integrity have regularly been threatened due to his professional activities, Mr. Zamora has been under protective measures from the Inter-American Commission on Human Rights since 2003. Since 2018, the threats and criminal persecution initiated by the Government against journalists - but also prosecutors, judges and more generally activitists - have increased. This however did not prevent ElPeriódico from continuously publish cases of corruption allegedly linked to the Government, including relating to individuals close to the then President of Guatemala.

On 29 July 2022, members of the National Civil Police and the Public Ministry arrived in unmarked vehicles to Mr. Zamora's house, inspected it for more than six hours, and eventually arrested Mr. Zamora, without any explanation. During the search, family members were pressured to sign a report claiming they gave consent to the house search and that they were informed of the reasons for Mr. Zamora’s arrest. On the same day, the head of the Special Prosecutor's Office against Impunity confirmed Mr. Zamora's arrest through social media, indicating a confidential investigation against him was ongoing. The following day, his arrest was confirmed by a court order.

On 9 August 2022, during a court hearing, Mr. Zamora learned that he had been arrested on charges of money laundering, blackmail and influence peddling. The case against Mr. Zamora was initiated by a complaint filed on 26 July 2022 by a former banker who stated that Mr. Zamora had asked him to launder an important sum of money in cash, and that he had assumed this money was from blackmail. The Prosecution alleged Mr. Zamora carried out this blackmail thanks to information he illegally obtained through an assistant prosecutor - who was arrested and then released for lack of evidence. Mr. Zamora alleged he obtained this money from a sale of artwork to businessmen, who did not want to be publicly identified because of the Government's persecution of those who finance independent journalism. As such, Mr. Zamora would have given the money in cash to the former banker in exchange of the latter sending a check for the same amount to elPeriódico.

On 2 May 2023, the trial against Mr. Zamora began. On 14 June 2023, the Court acquitted Mr. Zamora of the crimes of blackmail and influence peddling, but sentenced him to 6 years in prison for the commission of the crime of money laundering using an inference. The prosecutor and attorney general appealed to have Mr. Zamora sentenced to 40 years, while Mr. Zamora appealed to be acquitted. At the time of the source's communication to the Working Group, the appeals were still pending and Mr. Zamora remained in detention.

It should also be noted that in December 2022, elPeriódico stopped his print version and eventually stopped all activities on 15 May 2023, since the persecution it faced and harassment its advertisers faced had made it increasingly difficult to continue their activities.

The Government of Guatemala was given the opportunity to answer these allegations, which it did on 29 January 2024.

ARRESTED WITHOUT A WARRANT, HELD WITHOUT BEING PRESENTED TO A JUDGE WITHIN 48 HOURS AND UNJUSTIFIED PRE-TRIAL DETENTION

The source stated that Mr. Zamora was detained at his residency without a judicial order, and he was only informed of the reasons for his arrest 10 days later, during his first appearance before a judge. On the contrary, the Government replied that the Pluripersonal Criminal, Drug Activity, and Environmental Crimes Court informed Mr. Zamora of the reason for his detention on the day after the arrest. The Working Group stated that, according to article 9(1) of the Covenant, no one shall be deprived of liberty except on grounds established by law and following the procedure set forth therein. Also, article 9(2) states that every person shall be informed of the reasons for their arrest and promptly notified of the charges against them. The raison d’être of the arrest warrant is to ensure the legal basis of the arrest and to ensure that the detained person is informed of the reasons for the detention. The Working Group noted the different versions of the source and the Government and observed that the Government provided a legal document showing judicial authorisation to search Mr. Zamora’s residence, issued on 29 July 2022, with no clarification whether this document shown to Mr. Zamora contained the reasons for his arrest. However, the Government also stated that Mr. Zamora was notified with an arrest warrant the day after. The Working Group concluded that Mr. Zamora was not informed of the reasons for his arrest on 29 July 2022. Therefore, there was a violation of article 9(1) and (2) of the Covenant.

Thereafter, the first time Mr. Zamora was brought before a judge was on 3 August, four days after his arrest; however, he was only effectively heard on 8 August. The Government replied that during the initial hearing, Mr. Zamora decided to reschedule the hearing because a new audio recording was submitted the same day by the plaintiff. The Working Group evaluated the Government response and stated that according to article 9(3) of the Covenant, anyone arrested or detained on a criminal charge must be brought promptly before a judge. Additionally, the Human Rights Committee specified that 48 hours is generally sufficient to satisfy the requirement to bring a detainee “promptly” before a judge after arrest, and any longer delay must be exceptional and justified by the circumstances. In this case, the Government justified the delays after 3 August, but failed to justify the initial delay. Thus, the Working Group concluded that Mr. Zamora was not brought promptly before a judge within 48 hours, violating article 9 of the Universal Declaration of Human Rights and article 9(1) and (3) of the Covenant.

Lastly, the source claimed that on 9 August 2022, the Seventh Court ordered preventive detention for Mr. Zamora because of the risk of obstructing justice. According to the source, the Prosecutor’s Office failed to articulate how Mr. Zamora could pose a danger to the investigation, only saying that since Mr. Zamora was the president of elPeriódico could interfere with the investigation. The Government answered that preventive detention was issued due to possible obstruction of justice and risk of flight. International law recognises liberty as a principle and detention as an exception in the interest of justice. For this reason, pre-trial detention should be the exception, not the rule, and it must be based on an individualised determination, which should be reasonable and necessary, as stated in article 9(3) of the Covenant. Mr. Zamora spent a year in preventive detention. However, the Government failed to articulate the risk of flight and did not inform the Working Group of any direct threats posed by Mr. Zamora to the investigation. The Government highlighted the risk of using elPeriódico resources to obstruct justice, though, in which case Mr. Zamora should have been released when the newspaper was closed on 15 May 2023. For these reasons, the Working Group concluded that the detention of Mr. Zamora was arbitrary in violation of article 9 of the Covenant and article 9 of the Universal Declaration of Human Rights.

In light of the above,  the Working Group concluded that the detention of Mr. Zamora was arbitrary under Category I.

VIOLATION OF HIS RIGHT TO FREEDOM OF EXPRESSION AND DISCRIMINATION ON THE GROUNDS OF POLITICAL OPINION

The source stated that even though the arrest and detention of Mr. Zamora were based on money laundering and extortion, the real reasons for the arrest stemmed from his legitimate exercise of fundamental rights of freedom of expression, and they are related to his publications on corruption cases in elPeriódico. The Government responded by denying any relation between the arrest and the profession of Mr. Zamora. The Working Group noted that five days before the arrest, Mr. Zamora’s newspaper published severe allegations of corruption involving the Government of then-President and senior officials of his administration. Moreover, before September 2022, elPeriódico had published 144 other reports on corruption in that same Government. According to the Working Group, the response of the Government failed to provide sufficient details to contradict the arguments presented by the source and it recalled that article 19(1) of the Covenant states that all forms of opinions are protected, including political, scientific, historical, moral, or religious opinions. Additionally, paragraph 2 of the same article establishes that everyone has the right to freedom of expression, which includes the right to seek and receive information of all kinds, encompassing, among other things, political discourse and commentary on public affairs. It highlighted that this was a fundamental right to guarantee the defence and expression of opinions, including those of government policies or that do not align with them. In that regard, the Working Group concluded that the arrest of Mr. Zamora resulted from his exercise of the rights and freedoms established in article 19 of the Universal Declaration of Human Rights and article 19 of the Covenant.

His detention was thus arbitrary and fell under Category II.

Additionally, the Working Group stated that when a detention results from the active exercise of civil and political rights, there is a strong presumption of discrimination due to political opinion. Although the Government denied any link between Mr. Zamora’s detention and his journalistic activities, the Working Group noted the statements made by the head of the Special Prosecutor’s Office against Impunity regarding Mr. Zamora’s journalistic activities and the closure of elPeriódico as a consequence of the process. Also, the Government did not answer the allegation about the systemic criminalisation of journalists, columnists and staff of the newspaper. Therefore, the Working Group expressed the concerns of the international community regarding the widespread criminalisation of journalists, such as Mr. Zamora, and declared his detention to be a violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2(1) and 26 of the Covenant.

Accordingly, the detention of Mr. Zamora was arbitrary under Category V.

DENIED ACCESS TO LEGAL ASSISTANCE OF HIS CHOICE AT ANY TIME DURING DETENTION, DENIED ADEQUATE TIME AND FACILITIES NECESSARY TO PREPARE DEFENCE AND INABILITY TO PRESENT AND CROSS-EXAMINE WITNESSES

The Working Group stated that no trial should have occurred since the detention was arbitrary under category II. However, as criminal proceedings were initiated, the Working Group analysed the fundamental elements of a fair trial.

The source claimed that Mr. Zamora was deprived of his right to legal assistance. Mr. Zamora was assisted by ten lawyers over the course of eleven months from 29 August 2022. Four of his lawyers have been convicted during this period, and the other six have been accused of criminal conduct. The Government did not contest this claim. Yet, it said that Mr. Zamora decided to change the first two lawyers, thus failing to provide information related to the source’s allegations on the reasons that led Mr. Zamora to this decision. Article 14(3)(d) of the Covenant states that an individual has the right to defend themselves personally or through legal assistance of their choice. The Working Group explained that, even though Mr. Zamora had access to a lawyer from the beginning, his right to legal assistance of his choice was hindered by the repeated investigations into his appointed lawyers. Consequently, the Working Group found a violation of article 14(3)(d) of the Covenant. Furthermore, the Working Group expressed concerns about the pattern of investigating and criminalising Mr. Zamora’s lawyers and considering the lack of response from the Government, decided to refer this case to the Special Rapporteur on the independence of judges and lawyers.

Moreover, article 14(3)(d) of the Covenant states that every person deprived of liberty has the right to have adequate time and facilities to prepare their defence and to communicate with a lawyer of their choice. Specifically, the right to communicate with a lawyer requires the guarantee of prompt access to a lawyer. The Working Group noted that the situation did not grant Mr. Zamora this right. Hence, his right to adequate time and facilities to prepare his defence was not respected, violating article 14(3)(d) of the Covenant.

Further, the source claimed that Mr. Zamora was unable to present relevant witnesses in his defence. Mr. Zamora was ostensibly convicted because of money laundering, and it appeared this conviction was based on Mr. Zamora’s inability to demonstrate the origin of the money allegedly intended for laundering. However, according to the source, Mr. Zamora had a potential witness who brought artwork and handed over the money, and he wanted to present a contract of sale for the artwork from which the money originated. The Seventh Court declared these testimonies inadmissible. The Government claimed that Mr. Zamora did not propose any witnesses and that no documentation proving the legality of the money was submitted. The Working Group accepted the source accounts on the basis of coherence and lack of details provided by the Government, recalling that the notion of equality of arms is a fundamental characteristic of a fair trial, and it must exist between the prosecution and the defence. There is an obligation to respect the right to admit witnesses relevant to the case and to provide adequate opportunity to cross-examine and challenge prosecution witnesses. As a consequence, the Working Group concluded that Mr. Zamora’s defence was not granted equality of arms, in violation of article 14(1) and (3)(e) of the Covenant, as well as articles 10 and 11(1) of the Universal Declaration of Human Rights.

The Working Group concluded that these violations of the right to a fair trial rendered Mr. Zamora’s deprivation of liberty arbitrary under Category III.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of José Rubén Zamora Marroquín was arbitrary and fell under categories I, II, III and V because his deprivation of liberty of was in contravention of articles 2, 7, 9, 10, 11 and 19 of Universal Declaration of Human Rights and articles 2, 9, 14, 19, and 26 of International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Guatemala take the steps necessary to remedy the situation of José Rubén Zamora Marroquín without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.