- During protests over contested land in 2009 a well-known Maya Q’eqchi’ community leader and mine opponent named Adolfo Ich was killed, another Maya Q’eqchi’, German Chub, was shot and paralyzed from the waist down, and several other community residents were wounded.
- Guatemala’s Office of the Public Prosecutor charged Mynor Padilla, the Fenix mine’s head of security at the time of the protests, with homicide and assault. Padilla maintained his innocence throughout the trial.
- On Thursday a judge in Puerto Barrios acquitted Padilla and ordered his immediate release, instructing the Office of the Public Prosecutor to pursue criminal charges against Padilla’s accusers.
Indigenous community residents seeking justice for attacks in Guatemala faced a major setback Thursday. A judge in the Caribbean coastal city of Puerto Barrios acquitted the former head of security of a mining project of homicide and assault charges.
On September 27, 2009, protests broke out in the vicinity of the Fenix ferro-nickel mining project on the outskirts of the town of El Estor, on the northern shore of Izabal Lake. The demonstrations were sparked by fears of evictions in Las Nubes and other nearby Maya Q’eqchi’ communities involved in land disputes with the mining company.
In the midst of the protests, a well-known Maya Q’eqchi’ community leader and teacher who opposed the mine named Adolfo Ich was beaten, attacked with a machete, shot, and killed, Another Maya Q’eqchi’, German Chub, was shot and paralyzed from the waist down. Several residents from Las Nubes were attacked and wounded along the road where the protests were taking place, according to lawsuit plaintiffs.
At the time, Mynor Padilla, a former military coronel, was the Fenix mine’s head of security. According to eyewitnesses and the prosecution, Padilla personally shot Chub, participated in the attack that killed Ich, and was also responsible for the actions of other company security force members. Immediately prior to being shot, Ich was at home and Chub was playing soccer on the field near the company’s installations, according to the prosecution’s case.
A judge issued an arrest warrant for Padilla following the 2009 attacks, but he was not arrested until 2012. He was held without bail for homicide in Ich’s case, for assault causing grievous bodily harm in Chub’s case, and for assault causing bodily harm in the cases of the injured Las Nubes residents. The trial did not begin until 2015.
Padilla maintained his innocence throughout the trial. His defense was largely in line with the position of Toronto-based Hudbay Minerals, then the parent company of Fenix mine owner and operator Compañía Guatemalteca de Níquel (CGN), which has since changed hands. Hudbay presents a very different version of events from that of the prosecution on its website.
According to Hudbay, conflicts arose as a result of illegal squatters occupying company lands, and subsequent government evictions. In September 2009, protesters stole police weapons and opened fire on CGN personnel and attacked company-funded property, including homes and a hospital, according to Hudbay’s website, which adds that five of CGN’s security personnel were injured. Hudbay’s version of events neither confirms nor denies that Padilla or other security or company personnel shot anyone, but maintains that “CGN security and other personnel showed extraordinary restraint and acted only in self defence.”
Padilla politely declined an interview with Mongabay following the acquittal, but stopped to pose for a photograph with his family on their way out of the courtroom. CGN did not respond to a request for comment.
Hudbay Minerals did not respond to repeated email and telephone requests for comment on Padilla’s acquittal or on whether the company paid for his Guatemalan legal defense team. Canadian lawyer John Terry testified for Padilla’s defense in 2015 and testified that he had been hired and paid by Hudbay.
“We are not going to say anything that might be distorted on the Internet or otherwise used to interfere with Mr. Padilla’s presumption of innocence or right to a fair trial,” Hudbay Minerals director of corporate communications Scott Brubacher told The Toronto Star last year when asked whether the company paid for Padilla’s Guatemalan lawyers.
Regardless of who paid for it, Padilla’s high-profile defense team has had a rocky history. One of Padilla’s lawyers, Francisco Palomo, had previously participated in the defense team of Efraín Ríos Montt, a former general initially convicted of genocide for massacres during the 1960 – 1996 armed conflict. In June 2015, Palomo was shot and killed in Guatemala City, allegedly in connection with organized crime. Another of Padilla’s lawyers, Frank Manuel Trujillo, was charged in February 2016 with bribery, influence peddling, and other charges in connection with a massive crackdown on corruption that resulted in the resignation and arrest of Guatemalan president Otto Pérez Molina and other high-level officials in 2015.
Reaction to the verdict
After two years of court hearings in his case against Padilla, Chub knew his route well. Choosing the best streets along which to manoeuvre his wheelchair, he criss-crossed the few blocks to the Puerto Barrios courthouse after eating breakfast Thursday morning with supporters from Maya Q’eqchi’ communities and the capital. Two young men carried him up the courthouse stairs to the second floor courtroom to await the verdict.
“I’m fine on the outside, but on the inside, I don’t know,” Chub told Mongabay inside the courtroom while waiting for the hearing to get under way. He had hope for a conviction, he said, but wasn’t sure of anything. “On the inside, it will devastate me,” he said of the potential acquittal that would become a reality about two hours later.
As soon as the judge arrived, everyone who was not party to the case filed out the door. In February 2016, the judge implemented an unusual measure, ordering the remainder of the trial to take place behind closed doors, citing threats to herself and to the plaintiffs. Q’eqchi’ witnesses and plaintiffs had been reporting threats and intimidation, but they did not request or agree with the measure, which prevented the presence of media and even government human rights observers while court was in session.
Angélica Choc, the widow of Ich and one of Chub’s fiercest supporters, is party to the case but was unable to attend court on April 6 for health reasons. Outspoken in her calls for justice in the case of her husband’s killing, Choc left her home and community for her own safety after an attack in September 2016, when unidentified gunmen opened fire on the house in which she and two small children were sleeping.
Based in Puerto Barrios, Patricia Quinto participated alongside the public prosecutors in her capacity as Choc’s lawyer. In an interview with Mongabay in the courthouse following Padilla’s acquittal, she expressed her dismay at the outcome and its implications.
“From my perspective, [the judge] took into account the arguments presented by the defense. At no time did she take into account the arguments we presented as plaintiffs,” Quinto said.
“The sentence will be final in 10 days. The judge ordered [Padilla’s] immediate release. She didn’t wait for the final judgment,” she said, adding that judges usually wait until after the brief verdict appeal period before ordering the release of detained defendants.
What most bothers Quinto is that her client Angélica Choc and other key witnesses including Choc’s children, will now go from being victims to being accused of crimes. As part of her ruling, judge Ana Leticia Peña ordered the pursuit of criminal charges against them for obstruction of justice and perjury. Once the sentence is final, the Office of the Public Prosecutor — the same office that brought the case against Padilla — will be instructed to open cases against Choc and the others, Quinto said.
“Credibility in the justice system is, one could say, almost non-existent in terms of indigenous peoples. And with this [ruling], it sort of confirms that lack of credibility. It continues, and that gap might grow and indigenous people won’t believe in the justice system, because after being a victim, it now turns out that Angélica Choc will be prosecuted,” Quinto said.
Lawsuits continue in Canada
Thursday’s ruling may have been a blow to Maya Q’eqchi’ plaintiffs and their larger community, but they aren’t only seeking justice in Guatemala. Three related lawsuits against Hudbay Minerals are moving forward in Canada. Choc and Chub each filed claims related to the September 27, 2009, attacks, and 11 Q’eqchi’ women also filed a claim alleging they were gang-raped by Fenix mine and government security forces during a 2007 eviction from lands disputed by communities and the mining company.
A Toronto-based law firm, Klippensteins, Barristers & Solicitors, is representing the Q’eqchi’ plaintiffs in the Superior Court of Ontario in all three cases. Past attempts by victims from other countries to pursue justice in Canada for human rights violations allegedly committed by Canadian mining companies abroad have largely failed. The three Guatemalan cases set an important precedent in 2013, when Superior Court of Ontario Justice Carole Brown ruled that the cases could proceed to trial in Canada.
The Canadian lawyers aren’t fazed by Padilla’s acquittal in Puerto Barrios. “Unfortunately, this acquittal in Guatemala is what we always expected and predicted,” Murray Klippenstein, one of the lawyers arguing the Canadian cases, said in a statement Thursday.
“The Guatemalan legal system is corrupt and seeking justice there is, sadly, hopeless, especially against large international corporate interests like Hudbay,” Klippenstein said. “That’s precisely why Angélica’s and German’s best hope for justice against Hudbay has always been in Canadian courts.”
Rosa Elbira Coc is also hoping for a win in the Canadian courts. Coc is one of the 11 Q’eqchi’ women who are plaintiffs in the third Canadian lawsuit, for gang-rape allegedly perpetrated by police and mining company security forces. She came to the courthouse Thursday in support of Choc, Chub, and others, and was upset that Padilla was able to walk out the front door.
“I feel sadness because he went free and we indigenous people are just left like this. It shouldn’t be like this,” Coc told Mongabay in an interview outside Quinto’s law offices after the verdict Thursday.
“We have to keep moving forward. We can’t stay quiet,” she said in halting Spanish, a language she only recently began learning. “We’re continuing [to seek] justice. We have to go on. Even if it’s a struggle and there are challenges, we have to move forward.”