How a Guatemalan murder trial could forever change Canadian overseas mining

July 5, 2016 MaryAnn Mihychuk

The murder trial at the centre of a legal battle involving Toronto-based HudBay offers a glimpse of why Ontario courts took the landmark step of hearing a Guatemalan dispute in Canada.

The murder trial of Mynor Padilla, a former security guard for a mine owned by a then subsidiary of HudBay Minerals Inc., provides a fascinating glimpse into Guatemala’s problematic justice system.

Padilla, 52, is charged with killing Adolfo Ich, a Mayan Q’eqchi’ community leader, and shooting German Chub, a bystander, during a protest on contested land at Fenix nickel mine in El Estor, in eastern Guatemala, on Sept 27, 2009.

These alleged crimes are also at the centre of a series of landmark lawsuits in Ontario Superior Court, where HudBay, a Toronto-based company, faces three negligence claims, launched by Ich, Chub and 12 other Q’eqchi’.

The cases are being watched closely by Canada’s mining companies, as it is the first time lawyers are attempting to hold a Canadian company liable for actions of a subsidiary operating overseas.

Normally, such lawsuits would be heard in the country where the alleged transgressions took place. But lawyers argued that the plaintiffs could not get a fair trial in Guatemala, due to judicial corruption.

Long delayed, Padilla’s yearlong trial has been plagued with what the prosecution calls “irregularities”. Though a warrant was issued for Padilla’s arrest shortly after the 2009 shooting, Padilla remained at large for three years, and continued to be on the payroll of HudBay’s Guatemalan subsidiary. In 2012, he was finally arrested and jailed, but his trial didn’t begin for another three years.

Judge Ana Leticia Pena Ayala took the unusual step of closing the courtroom to the public for “security reasons” partway through the case, which is being held in the Caribbean port city of Puerto Barrios.

On May 17, the judge granted Padilla, who arrived in handcuffs with a police escort, “extra security” after his lawyers said he felt harassed approaching the courthouse. The accused can be seen in a video smiling and shaking hands with a group of photographers who stood outside the courthouse that day.

HudBay won’t clarify whether the company is footing the bill for Padilla’s high-profile lawyers, one of whom is charged with corruption, and another of whom was recently assassinated.

“Like everyone, Mr. Padilla is entitled to a fair trial, though some seem to feel otherwise,” said Scott Brubacher, HudBay’s director of corporate communications. “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.”

A human rights group that has worked with the victims in the trial, Rights Action, has speculated on its website that HudBay is paying for Padilla’s defence.

HudBay did pay for John Terry, of Tory’s LLC, to fly in from Toronto as a witness in Padilla’s trial. Terry submitted to the Guatemalan court the record of pleadings, affidavits and cross-examinations from the Canadian lawsuits.

The prosecution objected, but was overruled: “It is odd to have a foreigner giving testimony from a case in Canada at a Guatemalan murder trial. This has nothing to do with our case,” said Verenice Jerez in an interview in her office in Guatemala City.

On the stand, Terry testified about Chub’s affidavit and quoted from the transcript of his cross-examination in the Canadian lawsuit. He also testified about eyewitness Jose Ich, Adolfo’s son, who said in his affidavit that he saw Padilla, a former high-ranking member of Guatemala’s military, shoot his father.

Terry then highlighted what he said were discrepancies in Chub’s and Ich’s cross-examinations. He told the judge that, in his view, the outcome of Padilla’s murder trial is relevant in the Canadian lawsuit.

Impunity is such a long-standing problem in Guatemala that an international body, backed by the UN, was created in 2007 to support the prosecution of security forces and clandestine organizations embedded in the state. The criminal case against Padilla is being tried with the assistance of this body, known as the International Commission against Impunity in Guatemala (CICIG).

According to Human Rights Watch, the majority of violent crimes go unpunished in Guatemala, due to corruption, intimidation and attacks against judges and witnesses. It is also one of the most violent countries in the world that is officially at peace. Guatemala’s attorney general was forced to leave the country on May 30 after receiving threats in connection to a high-profile corruption case handled by her office.

Francisco Palomo, one of Padilla’s lawyers, was well-known in Guatemala for defending former politicians, most notably Jose Efrain Rios Montt, an ex-army general who was charged with genocide for the death of 1,771 indigenous people during his 1982-83 presidency.

Palomo’s name also surfaced in the Panama Papers. He is reported in Prensa Libre to have contacted Panamanian law firm Mossack Fonseca on behalf of his client, a Guatemalan drug trafficker and money launderer named Marllory Chacon Rossell, to establish an offshore company.

Palomo, 63, was shot 12 times and killed on June 3, 2015 — months after Padilla’s trial began — by two men on a motorbike while driving his car in Guatemala City.

Frank Trujillo, a second lawyer for Padilla, was recently charged with bribery in a case related to “La Linea”, a kickback scheme that forced the former president of Guatemala, Otto Perez Molina, as well as his vice-president to resign in 2015. (Both are now in jail awaiting trial, along with Trujillo.)

Carlos Rafael Pellecer, another of Padilla’s lawyers, said in an email it would be “inappropriate” to comment on any aspect of the case.

“The level of impunity in Guatemala is immense,” said Dr. Yuri Melini, director general of the Centre for Legal Action in Environmental and Social Issues. “We have so many challenges and it is so difficult to fight for justice.”

Melini himself survived an assassination attempt in 2008, when assailants shot him seven times at 7:15 a.m. on a street outside his mother’s home in Guatemala City. The case has never been solved. “Imagine if someone as high profile as I am cannot access the justice system, how much harder is it for others?”

Since peace accords were signed in 1996, few criminal cases have gone forward, though more than 200,000 people, mostly Mayans, were killed by the state’s security apparatus during a 36-year civil war. Many of the ex-intelligence units, police officers and counter-insurgency forces have mutated into criminal organizations, while some of the former political leaders have run for office.

This year, in a historic ruling in March, two ex-military officers were sentenced to 360 years in prison for sexually abusing Mayan women from a village called Sepur Zarco during the civil war. Fourteen military officers were charged with human rights abuses related to the disappearance of 558 indigenous people in the 1980s from a military zone in Coban, in the north. These charges followed the discovery of four mass graves in 2012.

Padilla’s trial is expected to wrap up this summer. If he is found not guilty, Jerez said the prosecution intends to appeal.