Acquittal in Guatemala now a lawsuit in Ontario
Result of negligence suits against mining company over shootings could effect corporate rulebook
In a decision that could have far-reaching implications in Canadian courts, a Guatemalan judge acquitted a former security guard employed by a subsidiary of a Canadian mining company of murder on Thursday.
Mynor Padilla, 53, had been charged in the shooting death of Adolfo Ich, a Mayan Q’eqchi’, at a Sept. 27, 2009 protest on contested land at Fenix nickel mine in El Estor, eastern Guatemala.
At the time, Padilla was employed by Compania Guatemalteca de Niquel (CGN), then a subsidiary of Hudbay Minerals Inc., based in Toronto.
Padilla, a former high-ranking member of the military, was also acquitted in the shooting of another man, German Chub, who was left a paraplegic with one functioning lung.
The case is being watched closely in Canada, as the events that led to Ich’s death are being contested in three landmark negligence lawsuits launched in the Ontario Superior Court.
The suits were filed by Ich’s family, Chub and 11 other Q’eqchi’.
If Hudbay is found liable in Canada, the case could establish corporate behaviour guidelines for Canadian mining subsidiaries overseas, which have a long history of human rights and environmental complaints.
Scott Brubacher, Hudbay’s director of corporate communications, said the company is pleased with Padilla’s acquittal. “We always believed in his innocence,” he said.
Ich’s widow says she is disappointed, but not surprised by Judge Ana Leticia Pena Ayala’s verdict, issued in the Caribbean port city of Puerto Barrios.
“We never expected justice in Guatemalan courts,” Angelica Choc said. “But we will continue fighting the case in Canada.”
The judge also announced that criminal charges would be brought against the prosecutor in the case, as well as witnesses for the prosecution, including Choc, for alleged obstruction of justice and falsifying information.
Murray Klippenstein, the Guatemalans’ Canadian lawyer, called such retaliatory charges “bizarre” and said they underscore concerns about Guatemala’s dysfunctional justice system.
“This decision is likely to have little effect on the lawsuits in Canada. If anything, it helps by confirming the inability to obtain justice in Guatemala,” he said.
In total, the plaintiffs are seeking $15 million in compensatory damages and $64 million in punitive damages.
Corruption within Guatemala’s justice system, combined with intimidation against judges and prosecutors, contributes to high levels of impunity, noted a 2017 Human Rights Watch report. The U.S. State Department found that the country’s judicial system fails to provide fair trials due to inefficiency, corruption and intimidation.
In 2008, an international body backed by the UN was created to support the prosecution of security forces and clandestine organizations embedded in Guatemala.
The criminal case against Padilla was tried with the assistance of this body, known as the International Commission against Impunity in Guatemala (CICIG).
Padilla was arrested in 2012, three years after his arrest warrant was issued. At the time, he was still a CGN employee.
Rights Action, a Toronto-based human rights group that has worked with the victims in the trial, said they have suffered harassment and intimidation.
“It is no small thing for impoverished, discriminated Mayan villagers to publicly tell the truth about the mining repression and human rights violations they have suffered,” said Grahame Russell, the organization’s director. Hudbay sold the mine in 2011. 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 deaths of 1,771 indigenous people during his 1982-83 presidency.
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.