DESA Lawyers Warn NGOs against Celebrating Violations of Due Process in Berta Cáceres Trial

Washington, DC – A number of global NGOs have behaved in a reckless and irresponsible manner by applauding a deeply controversial court ruling in the Berta Cáceres trial in Honduras, says Robert Amsterdam, international counsel to Desarrollos Energeticos S.A. (DESA).

Amsterdam’s statements were expressed in an open letter from his defense team delivered to several dozen international NGOs and published online on Tuesday.

“The general position among many NGOs was that this flawed verdict was ‘a positive step’ for rule of law in the country, when in fact it was the opposite – this was a court that bowed to outside pressure and saw its independence violated by an activist pressure campaign,” commented Amsterdam.

Amsterdam writes in the open letter: “An endorsement of the verdict, especially before the full court record has even been released to the public, implies an endorsement of a deeply flawed process, and lowers the standards expected of Honduran courts while further eroding rule of law in the country. This celebration has not only resulted in the jailing of an innocent man, Sergio Rodríguez, without sufficient evidence, it also puts the country on a path where politically motivated verdicts are seen as an acceptable form of justice – even if they conflict with the law.”

The open letter cites statements from an attorney for the private accusers, who similarly admitted in hearings before the Inter-American Commission on Human Rights that the verdict could be overturned due to these procedural irregularities. The letter also identifies many crucial failings in the judicial process and highlights the fundamental absence of conclusive evidence against Mr. Rodríguez.

“Because these organizations want so badly for justice to be served, they have uncritically accepted conclusions without demanding evidence. Many have decided that this kind of verdict is acceptable, that DESA and others should be found guilty simply because COPINH says so, even if it means breaking the law and violating human rights to achieve it,” Amsterdam writes in the letter.

The full text of the open letter to NGOs can be found below and other documentation is available at casocaceres.com.

###

HONDURAS: NGOs Must Curb Their Endorsement of Politicized Justice and Demand Fair Trials 

Open Letter to the Global NGO Community with Regard to the Berta Cáceres Case in Honduras

Dear Colleagues,

As most of you are aware, on November 29 a court in Honduras ruled to hold seven out of eight defendants guilty of involvement in the 2016 murder of the activist Berta Cáceres. This trial, which from the beginning was riddled with delays, due process failings, and flagrant violations of rights of the defendants, has nevertheless been broadly celebrated by NGOs as a step forward for Honduras, while many have called for further unspecified prosecutions.

This is reckless and irresponsible. An endorsement of the verdict, especially before the full court record has even been released to the public, implies an endorsement of a deeply flawed process, and lowers the standards expected of Honduran courts while further eroding rule of law in the country. This celebration has not only resulted in the jailing of an innocent man, Sergio Rodríguez, without sufficient evidence, it also puts the country on a path where politically motivated verdicts are seen as an acceptable form of justice – even if they conflict with the law.

Failure to Meet Due Process Standards

Please do not just take my word for it. Appearing at a post-verdict hearing before the Inter-American Commission on Human Rights, the lawyer representing Council of Popular and Indigenous Organizations of Honduras (COPINH) Víctor Fernández openly admitted that the decision “runs the risk of being revoked due to the failures of due process that occurred during the preparation and substantiation” of the trial.

Even before the court had reached its decision, many observers were prepared to declare the process illegitimate. A pre-verdict joint statement from the Office of the United Nations High Commissioner for Human Rights (OHCHR) in Honduras and the Inter-American Commission on Human Rights (IACHR) appeared to impugn the credibility of the court based on the recent expulsion of the private accusers from the trial. This action, they wrote, “significantly undermines the victims’ right to fair, effective access to justice and their right to the truth,” and “also has concrete effects on the use of evidence that had been put forward by the private prosecution.”

But are the defendants not afforded a right to a fair trial? Is defendants’ presumption of innocence secondary to victims’ wishes? Why have all these complaints about the procedure focused only on victims’ rights, or evaporated into thin air as soon as the court produced the requested outcome?

Lack of Conclusive Evidence

Before the court had reached its decision, we on the defense team for Desarrollos Energéticos S.A. (DESA) published an 80-page white paper detailing the procedural irregularities, violations of rights, and the clear and blatant failures to meet basic international standards for a fair trial.

Beyond the procedural failings, the most important aspect of the Berta Cáceres trials for NGOs to understand is the prosecution’s failure to present any conclusive evidence proving Sergio Rodríguez, David Castillo, or any other member of DESA had any direct liability in this terrible crime. Only Sergio Rodríguez’s case was before the court in this trial as David Castillo will be judged separately. Moreover no criminal charges been filed against DESA or any other of its employees or executives. Yet curiously at the verdict in this first trial the court spoke in broad terms as if it had been judging the guilt of Castillo and conceivably of others against whom no charges have been filed. This represents an outrageous violation of the due process and presumption of innocence rights of anyone not part of that first trial.

Despite thousands of pages of the investigative case file, there is not one item or evidence nor one single witness testimony nor any transaction that proves intent or implicates involvement of anyone associated with DESA. In few other jurisdictions in the world would it be possible for a court to find someone guilty based principally on a person’s inclusion in a text message chat group, one call of unspecified content, and after the court has denied the consideration of all the expert witness evidence the defense filed on time even when faced with absurd and ever-changing deadlines designed to make the presentation of such evidence all but impossible.

The prosecutors, it should be noted, failed to present conclusive evidence not for lack of capacity or expertise, but because it does not exist. There is no logical motive for DESA in this case. The death of Berta Cáceres was precisely the worst possible outcome imaginable – a horrible crime which devastated reputations, destroyed jobs and opportunities in the communities, and resulted in the indefinite closure of the project costing the company millions.

At the time of her death, the company had largely reached a détente with Cáceres after moving the project site to a second location. According to deleted text messages recovered by forensic data experts and published in the white paper annexes, Berta Cáceres and David Castillo enjoyed an authentic and close friendship, including his financial support of her mother’s medical care, as well as assistance finding doctors that would treat Berta’s mother, financial support for Berta to buy a vehicle for COPINH, greetings in festive dates, comments about their respective travels, frequent face to face meetings, Berta asking David for advice on how to rent a car in the United States; and most importantly that just before receiving the Goldman Prize Berta told Castillo she would have liked him to be at the award ceremony with her. Cáceres did not fear Castillo nor was there ever any threat as COPINH so often falsely claims.

NGO Pressure Led to Miscarriage of Justice

The court, by including Mr. Rodríguez among the guilty, acted exactly in accordance with how global NGOs were pressuring them to act. The reading of the court’s November 29th ruling largely parallels the conclusions of the report published by the so-called International Group of Experts (GAIPE), which were appointed by COPINH.

Months earlier, we had requested one of the world’s preeminent criminal law experts to examine the GAIPE conclusions. Canadian attorney Brian Greenspan, famous for breaking open headline murder cases such as the Sherman affair in Toronto, discovered numerous fatal flaws in the GAIPE report and reckless, unsupported accusations regarding DESA.

In Greenspan’s report, he found that the GAIPE authors fail to cite anything that “actually substantiates these allegations” against DESA, and instead base their conclusions on “text messages that are completely unrelated to the contents of these allegations.” Greenspan concludes that the GAIPE report “appears to be written in order to justify charges against DESA executives, not to dispassionately and objectively determine the truth. Any attempt to portray it as an independent fact-finding report is, unfortunately, mistaken and tragically misleading.”

Nevertheless, we continue to see NGOs refer to this discredited, biased report, and we have now seen a court honor its same evidence-free conclusions as a response to this immense public pressure campaign.

COPINH Has Misled and Misinformed

It is easy to understand why NGOs have misinterpreted this case and its verdict. Honduras has for decades been plagued by corruption and impunity. Berta Cáceres was a highly visible and tremendously sympathetic figure, and her murder was reprehensible and brutal. As such, there is an understandable desire to view this case as a litmus test for accountability.

But when so many lives are at stake, it is of the utmost importance that we deal strictly in facts and evidence – and unfortunately, COPINH and its allies have failed to be honest brokers in this process. They have repeatedly mischaracterized, misled, and lied to media and international NGOs while preemptively attacking the defendants’ rights to presumption of innocence and a fair trial. Our white paper even contains text message evidence showing a deliberate plan by COPINH to deceive and mislead a UN Special Rapporteur and representatives from Global Witness.

COPINH has been the dominant force in controlling the public narrative on the case. They have presented a clean and logical story – that a crusading activist clashed with a hydroelectric company and paid the ultimate price for her resistance, and now an insidious “deep state” structure of economic “elites” must be brought to accountability to serve justice. Unfortunately, it is not a story that is supported by any evidence, and the apparent lack of questions and due diligence by NGOs to substantiate this theory is, quite frankly, alarming.

Because these organizations want so badly for justice to be served, they have uncritically accepted conclusions without demanding evidence. Many have decided that this kind of verdict is acceptable, that DESA and others should be found guilty simply because COPINH says so, even if it means breaking the law and violating human rights to achieve it. This sets an awful precedent for Honduran justice, further hollowing out already weak institutions, and placing the state in the capture of private interests pursuing an agenda that in a perverse twist, reminiscent of colonialism, values more the wishes of unelected pressure groups from rich countries than the rights to due process and presumption of innocence Hondurans have chosen to enshrine as part of their legal system.

Demand Fair Trials

Soon the full transcript of the court proceedings will be made available to the public. We intend to request a thorough review of this record by independent experts to see if the trial came anywhere close to meeting international standards. We implore the international NGO community to do the same, to set aside bias and assumptions, and recognize that the most important priority is that judicial independence is upheld, that rights are honored, and that courts hold fair and impartial trials even when, especially when, the outcome is not politically popular.

Signed,

Robert R. Amsterdam