On Monday, July 5, 2021, the First Chamber of Sentencing Court with National Territorial Jurisdiction issues guilty verdict against Roberto David Castillo Mejia for the murder of Indigenous Lenca rights defender Berta Cáceres. The Expert Observer Mission is grateful to have had the opportunity to be present in the courtroom during the reading of the ruling and also to have observed the entirety of the trial virtually.
Remarks prior to the reading of the ruling
The people who followed the trial know that only two people other than the parties to the proceedings were allowed to be present in this courtroom, one was the victim's daughter and the other was the mother of the accused. And we made that decision at that time because we live in a pandemic situation and this Court has the responsibility to control that context and the security of the environment, given the complexity of the case. Today, as it is only the reading of the verdict, we considered it prudent, in view of the expectations generated in the trial, to give the opportunity to the people who could be present in the courtroom while distancing and listen to the verdict.
Based on balance, on equality, to have the spaces available, giving the opportunity to the prosecuting party to have a list of 10 persons and to the defense to provide its list of 10 persons. In addition to these 20 people, to give the international community the opportunity to accompany them. In relation to the reporters, the Tribunal agreed that the Tribunal's public relations officer should be present at the Tribunal, in order to be able to transmit the important events that take place here. If there are other media correspondents it is because the parties have given the opportunity to include them in their respective lists, and we make this clarification in order to make it clear that the Tribunal has not had the slightest intention of leaving out other media. Lists that have been formed with their names and surnames and whose identity has been verified in order to enter this Tribunal.
Entering into the matter, we must also point out that today is part of the vacation period of the Judiciary, and for this reason and protected by the Criminal Procedure Code, this Court habilitates this day to make this ruling known, due to the fact that the deliberations have taken more days over and above the closing of the Judiciary's working day.
For this reason, then, we would like to move on to other observations, entering into the resolution of this trial. After having completed a trial that has generated so much national and international attention, today we end one of the most important stages of this criminal proceeding, which is the definition of a ruling that establishes the criteria of this sentencing court in accordance with the evidence that has been presented at trial and that has allowed us to reach a conclusion.
First of all, the members of this Tribunal over which I have the honor to preside wish to emphasize that even though the hard work of each of the parties to the proceedings is admirable, and that outside these walls there are blocks for or against, beyond what is disputed in this court, we wish to emphasize that this Tribunal remains and will continue to be a Court of Law. This Court certainly does not have the authority to be bound by any extrajudicial agenda, for or against any of the parties represented here. We say this in view of the fact that there certainly exist or have existed parallel trials in which it is a real shame that there are people who lend themselves to situations that far from strengthening the institutionality of our country, try -thank God without succeeding- to undermine its foundations, even referring to personal affairs of these judges, which should not be part of a trial.
This court is bound by the law, and in this case specifically, by the rule of evidence and in this case, which has been somewhat complex, it has not prevented us from reaching certain conclusions with certainty and assuming its responsibility, this Court takes responsibility for this strictly jurisdictional decision, which the law requires must be reasoned and duly motivated. It is clear that in processes such as these everything is decided on the basis of an acquittal or a conviction, and therefore we are clear that our criteria will probably not be received with pleasure by some of the parties in dispute, however, for this the laws already offer their procedural remedies, we know it, you know it, but for those others who listen to us and perhaps are not so familiar with the way our processes work, we tell them that the proceedings will follow the course they should follow. With this ruling and the respective sentence we can say that the court fulfills its task, with this phase of the administration of justice, to which these three judges have been called to perform. Having said these words, I will now make known what constitutes by unanimous vote, our judgment.
PROVEN FACTS
This Tribunal, after having analyzed all the evidence as a whole, assessed according to the rules of sound judgement, finds as proven the following facts:
FIRST: Since 2013, the DESA company undertook the construction of a hydroelectric project called Agua Zarca Hydroelectric Project, known by its initials as PHAZ, located on the banks of the Gualcarque River and in the vicinity of the communities of the Rio Blanco area, including El Barreal, La Tejera, Valle de Angeles and La Union, in the department of Intibucá, supported by financing from national and international bank financing. The construction of this project obtained the approval of some inhabitants close to the project in the hope of obtaining infrastructure and development for the neighboring communities, but it was also opposed by other people from these communities and members of COPINH, coordinated by Mrs. Berta Isabel Cáceres.
They considered that the construction of the hydroelectric project represented a danger to the environment and natural resources, especially with regard to the Gualcarque River, whose waters flow near the community where the hydroelectric project would be initially located. They were also opposed because the hydroelectric project was promoted in violation of the right to consultation of the local Indigenous communities.In the context of this opposition, several demonstrations were held at the site, causing controversies between the opponents and DESA employees, as well as with other members of the communities who favored the presence of the company, and also with the intervention of the forces of public security, to such an extent that there were events that culminated in damage to property and confrontations that resulted in the death of two people.
In the framework of this context of opposition, this project was possibly redesigned by its executives to be built on the left bank of the Gualcarque River, located near the municipality of San Francisco de Ojuera, department of Santa Barbara, due to the continued opposition by this organization led by environmental leader Mrs. Berta Cáceres. This opposition increased in 2014 and 2015 to the point that the controversy captured the attention of the country's media and foreingners associated to the addressing of these issues.
SECOND: In such circumstances, managers who were in charge of the implementation of the project, including the manager, Mr. Roberto David Castillo, sought to carry out actions to neutralize the movements and actions of Mrs. Berta Cáceres along with people from her organization COPINH. Thus, these executives participated in two groups on the WhatsApp platform, one called PHAZ Coordination and another called PHAZ Committee, the latter which on July 7, 2015 was renamed PHAZ Security. Mr. Roberto David Castillo was part of the groups, indicating to the other DESA executives in the PHAZ Security chat that strategic and intelligence information would be handled among them. As part of these actions, DESA executives paid for the services of informants, in order to have advance information on the places, days and dates that Berta Cáceres planned to carry out mobilizations with her organization in opposition to the construction of DESA's Agua Zarca hydroelectric project.
THIRD: In 2015, even after Mr. Douglas Bustillo's employment relationship with the DESA company had ended, there were a series of communications between Bustillo and other executives, one of whom was the General Manager David Castillo, in order to put an end to the opposition carried out by Berta Cáceres and other members of COPINH. As a consequence of such deliberations, the death of Berta Cáceres was decided, an action that would be developed or coordinated by Douglas Bustillo with the supervision and contribution of budget and logistical elements to be provided by Mr. Roberto David Castillo.
In this context, Douglas Bustillo, who had previously been in the military, communicated with a friend of his who at that time was an active member of the Armed Forces and who was a person who in 2014 had his telephone conversations tapped in the framework of other investigations for various illicit acts. Douglas Bustillo approached this person to make him part of the actions that were going to be undertaken to end the life of Mrs. Berta Cáceres and through which the means were determined, such as the use of weapons and people with whom the action would be carried out, to end the life of Mrs. Berta Cáceres.
Thus, with the involvement of this former companion of Douglas Bustillo, another individual was found, who, along with three others, would be responsible for taking the life of Mrs. Berta Cáceres, carrying out surveillance and monitoring of her and her home. It was foreseen that on February 5, 2016 the action would be carried out, and Mr. Douglas Bustillo and two others were located that day in the city of La Esperanza, Intibucá. That night, Mr. Roberto David Castillo, according to the cell phone dump, sent a text message to Mr. Douglas Bustillo at 8:58 p.m. with the following message "remember the accidents and the scene".
The action was not executed that night and Mr. Douglas Bustillo informed Mr. Roberto David Castillo at 09:17 hours of the following day February 06, 2016, to whom he stated "mission aborted. Yesterday it was not possible, I will wait for what you said because I no longer have logistics, I am at zero". Then he wrote again at 11:30 a.m. and told Roberto David Castillo "I do not need the information, I need what you are going to budget for the work: the suitable and logistical means", to which David Castillo replied at 9:43 p.m. "copied, mission aborted".
Meanwhile, opposition protests continued to take place, being one of the last most relevant, the one that took place on February 20, 2016, which was also reported that same day by Douglas Bustillo to Mr. David Castillo. On March 2, 2016, following the determined plan and with the coordination of Douglas Bustillo, which had been reported to David Castillo and another executive of DESA, four individuals traveled until 11:30 at night to the destination of La Esperanza, Intibucá, where Mrs. Berta Cáceres was accompanied by the protected witness XXX, a foreigner who was visiting her in the city of Intibucá. Then the four individuals entered the house and once inside they shot at the foreigner who was in a room, leaving him wounded, while the other one who found Mrs. Berta Cáceres also inside the house, shot her several times, and she died. Afterwards, the individuals all went back to the north of the country, in a vehicle that was waiting for them on the outskirts of the residential El Líbano in the early morning of March 3, 2016.After the action was carried out, during the course of March 3, Douglas Bustillo contacted DESA executives, including Roberto David Castillo, by telephone. Meanwhile, opposition protests continued to take place, being one of the last most relevant, the one that took place on February 20, 2016, which was also reported that same day by Douglas Bustillo to Mr. David Castillo. On March 2, 2016, following the determined plan and with the coordination of Douglas Bustillo, which had been reported to David Castillo and another executive of DESA, four individuals traveled until 11:30 at night to the destination of La Esperanza, Intibucá, where Mrs. Berta Cáceres was accompanied by the protected witness XXX, a foreigner who was visiting her in the city of Intibucá. Then the four individuals entered the house and once inside they shot at the foreigner who was in a room, leaving him wounded, while the other one who found Mrs. Berta Cáceres, also inside the house, shot her several times, and she died. Afterwards, the individuals all went back to the north of the country in a vehicle that was waiting for them on the outskirts of the residential El Líbano in the early morning of March 3, 2016. After the action was carried out, during the course of March 3, Douglas Bustillo contacted DESA executives, including Roberto David Castillo, by telephone.
LEGAL BASIS
This Tribunal establishes the following as legal grounds:
FIRST: Mr. Roberto David Castillo was accused of the crime of murder to the detriment of Mrs. Berta Isabel Cáceres in the capacity of inducing perpetrator, according to the criteria of the Public Ministry, and in the capacity of co-perpetrator according to the criteria of the private accusations, all of which were based on Article 193 of the Criminal Code and for which they requested the sentence established in the new Criminal Code in force (Decree 130-2017), as they considered this sentence more favorable and that it should be imposed under the protection of the principle of retroactivity of the law and the provisions of Article 615 of said Code. It must be said that the death of Mrs. Berta Cáceres was not a controversial point in the present case and the circumstances in which she lost her life certainly fall under what constitutes the crime of murder. Article 193 of the Criminal Code in force establishes the crime of murder and has the following objective elements a) to kill a person, b) that in carrying out the action of killing, there must be some qualifying circumstance such as malice aforethought. These typical elements are in accordance with the law in force at the time of the facts.
In the Court's opinion, in the present case, there is premeditation and this consists of using means, ways or forms that tend directly and especially to consummate the act, without risk to the aggressor's person, of a possible defense that could be exercised by the offended party. Therefore, in the case of premeditation, two elements must essentially concur: an objective element, the use of means, ways or forms of execution; and a subjective element, which is a tendential element, consisting of ensuring the execution without risk to the aggressor of a possible defense that could be exercised by the offended party. What is decisive in the case of premeditation is, therefore, the assurance of the execution of the act and the absence of risk to the defense that the offended party may make; it is enough that the subject seeks the favorable situation, knows it and takes advantage of it or wants to take advantage of it. As it is reflected in the concrete case.
In the present case, it is the opinion of the members of this Court that, of the defining or qualifying circumstances of the criminal offense of murder, the one that occurs in the death of Mrs. Berta Isabel Cáceres, is premeditation, since, in the crime, means, ways and manners were used to kill the Indigenous leader and coordinator of COPINH, Mrs. Berta Isabel Cáceres, on March 2, 2016, between eleven thirty and twelve o'clock in the morning. The action was executed by several individuals with specific roles, two of them entered her home, and using firearms, and taking advantage of these circumstances, jumping over the perimeter fence of the house and once inside, shooting her on several occasions, wounding her vital organs, losing her life immediately as a result of shots received in vital areas of the body and thus ensuring the result without any risk to those who participated in the execution of the act. Without any possibility that the victim could somehow repel the surprise attack made against her, executed by people who outnumbered her, and therefore eliminated the possibility of defense.
The penalty for the crime of murder is twenty (20) to twenty-five (25) years of imprisonment in accordance with the Penal Code in force, which is the most favorable normative and therefore applicable in this particular case, as far as the sentence is concerned.
SECOND: From what was exposed in the trial, there was no controversy in several aspects, among them, as previously stated, the first, the death of Mrs. Berta Cáceres on March 2, 2016 and the process in which several individuals who are not part of this process participated. Second, it was also uncontested that Mr. Roberto David Castillo between 2015 and 2016 was the manager of the company DESA, which developed a hydroelectric project called "Agua Zarca" in the area of Rio Blanco, Intibucá. Three, it was not controversial the existence of an opposition carried out by many people in the communities of Rio Blanco and outside of them, a movement led by several people, among them Berta Cáceres, who as an environmental defender even won an international award. Four, it was also not controversial that between 2014 and 2016, Mr. Roberto David Castillo and Berta Cáceres communicated and met on several occasions, resulting in the question of the sincerity and intentions of the accused with Mrs. Berta Cáceres in the context of those communications. Five, in the course of the opposition, several demonstrations were held at the project site, resulting in some confrontations in which public security forces and other public authorities intervened. Sixth, as a result of this opposition to the project, the project was redesigned and relocated to another bank of the Gualcarque River and after the death of Berta Cáceres, the project was suspended. All these points, in addition to being uncontroversial, were accredited by expert and testimonial evidence both for and against the prosecution.
THIRD: Regarding the participation of the accused Roberto David Castillo, this was the main aspect of dispute between the parties. In principle, it should be noted that in criminal acts such as these, precisely because of their nature, it is not usual to find direct evidence or to express the planning or details before third parties or to talk about it openly, directly, and this case is certainly not the exception. That is why, in view of the complex forms of criminal execution, the doctrine and the law have provided that the acts can be accredited starting from a plurality of facts or circumstances manifested externally and known, complying with the due immediacy, which seen in isolation would surely not prove anything, however, once analyzed as a whole, linked to each other, taking a chain or a logical causal link, a reasonable thread, it is possible to obtain a conclusion not known until then. This is what is known as circumstantial evidence, fully recognized in our country as a foundation and basis of proven facts that has allowed in this case to reach a conclusion regarding the participation of Roberto David Castillo in the prosecuted facts. Referring to doctrinal situations, very briefly we can express that, among these, the renowned jurist José Cafferata Nores in his work entitled La Prueba en el Proceso Penal of 1994, tells us that an indication is a fact or circumstance from which one can infer the existence of another by means of a logical operation. Dennis XXX Hernandez who is mentioned in the Collection of Judicial Studies Rafael Alvarado Manzano, in his fifth book titled The Valuation of Evidence, Presumption of Innocence, Indubio Pro reo, understands as an indication any known fact or circumstance of known fact from which the existence or non-existence of another unknown fact is inferred by itself or jointly with another, by means of a logical operation based on general rules of experience and scientific principles of special crimes. In the words of the Spanish Constitutional Court sentence 174 of December 17, 1985, the well-known circumstantial or circumstantial evidence is that directed to prove the certainty in the facts, indications that are not constitutive of a crime, but from which the commission of these and the participation of the accused can be inferred by means of a reasoning based on a causal or logical nexus existing between the proven facts and those that they try to prove. The Supreme Court of Justice of Honduras through the Criminal Chamber in a judgment dated December 13, 2004 also established that the evidence can be acts prior, concurrent or subsequent to the commission of the crime, these facts serve the judge in the absence of direct evidence to infer others that allow him to reconstruct the judged fact. Next, we will proceed to make a breakdown of the facts that affirm the participation of the accused in the murder of Mrs. Berta Cáceres, some will possibly be expanded in the sentence, which in the opinion of this Tribunal constitute the circumstantial evidence in the present case.
There are several acts known essentially through the intervention of communications, as well as information extracted from cell phones of telephone dumps that are indicators of the events that took place. In the present case it has become clear the existence of telephone conversations that served as inputs to expert evidence that show the involvement of several individuals who, given the impossibility of knowing that they are being listened to or the impossibility of foreseeing that they could know the content of their conversations through text messages from their mobile devices, makes credible what they spontaneously converse with each other by means of text messages from their mobile devices, about aspects, events and dates that even when they do not directly mention the coordination, planning and execution of the death of the deceased, the contents of such messages and communications, once linked chronologically and reasonably with other indicators, are congruent with the fact being judged according to the accusatory thesis. Before establishing what these indicative points are, it is also worthy of note that in the present case the defense introduced evidence aimed at demonstrating the existence of several other circumstances that threatened the life of Mrs. Berta Cáceres and which it said the Public Prosecutor's Office did not investigate in depth. However, these aspects mentioned, as an example, the threat derived from another project called Blue Energy, the one derived from the mining project, the one derived from a link with people who allegedly engaged in illegal acts such as drug trafficking and even derived from some personal relationships that Mrs. Berta Cáceres had, according to the defense. These, in the opinion of this Court, remain as mere hypothesis, not confirmed and rather discarded by others that are supported by the technical evidence derived from the intervention of communications, telephone tapping, the extraction of information from the seized cell phones, among them the devices of Mrs. Berta Cáceres, Douglas Bustillo, Sergio Rodríguez and the accused David Castillo himself. The evidence of which is as follows:
1. With the information regarding the inputs of the expert's report, the alienation of the telephone numbers that were anchored to the antennas of the Residencial El Líbano in La Esperanza, Intibucá, on the night of the facts was established. To do so, we discarded the numbers of the residents of the Residencial El Líbano from the WhatsApp groups and found the number 9776-7794, which was not part of the group of residents of the residence. We were able to establish through information extractions and telephone dumps that said number was used by a person named Henrry Hernández and that he was constantly communicating with other telephone numbers that were determined to be used by the persons mentioned such as Mariano Díaz, Douglas Bustillo, Oscar Adolfo Torres, Henry Rápalo and Edison Atilio Duarte. Thus, we can establish that the telephone number used by the army officer Mariano Díaz was in communication with Douglas Bustillo, a person who, although he no longer worked for DESA, coincidentally had been the head of security of the company and was still in communication with DESA executives, one of them being Mr. Roberto David Castillo.
2. When we listen to the conversations of Douglas Bustillo, his former military partner in the army and of this one with another individual, Henrry Hernandez, plus the incoming and outgoing calls between this individual and the others whose phones also appear to be present in the vicinity of Residencial El Libano on the day of the events, as well as the conversations of the cell phones of Douglas Bustillo, Sergio Rodriguez and David Castillo, it is possible to infer the existence of at least two spheres of communication: One between Douglas Bustillo with his former military partner, Mariano Díaz and the other individuals. And another sphere between Mr. Douglas Bustillo and DESA executives, one of whom is the accused Roberto David Castillo, being evident the intermediation of Douglas Bustillo between both spheres of communication.
3. Another aspect that links the executives of the DESA company, one of whom is Roberto David Castillo, is that through the creation of the WhatsApp group called "PHAZ Security" on October 7, 2015, guidelines were established at the time on the information of the group, i.e. on the movements and other aspects that could only be known and managed by the group created and limited for that purpose. Thus, Mr. Roberto David Castillo, manager of DESA, told the members of the group that there is information that can only be handled by DESA and that they will be in charge of security and intelligence. In addition, with everything that Berta Cáceres does, they certainly know about it, while David Castillo, using the number 9990-0946, also asks a manager to buy a telephone in the name of a third party to send messages to different groups of Tejera. This can be seen in the chats.
Likewise, on October 29, 2015, a DESA Manager in the "PHAZ Security" group says "while Tomás and Berta do not arrive the movement is weakened and there is little attendance, hence it is against them that we must take action". Certainly these aspects seen in isolation do not necessarily imply the execution of something illegal, rather than actions to counteract actions of damage to the detriment of the DESA company, however, this, together with other events derived from the conversations and the final result that Mrs. Berta had, allows inferring that the actions are aimed at eliminating her from the opposition in the execution of the hydroelectric project and that culminated effectively with her death.
Furthermore, it is clear from the conversations that Mr. Roberto David Castillo was asked to interact with Mrs. Berta to limit opposition actions and, in turn, conversations in which he reported on her movements. Even on account of the conversations he had with Mrs. Berta Cáceres in a personal capacity. Therefore, it can be said that Mr. David Castillo, in his capacity as Executive Manager of DESA, in effect had full knowledge of the movements of Mrs. Berta and the group she coordinated, such as COPINH. There were also conversations in which Mr. Roberto David Castillo let Mrs. Berta know that he was following up on her activities and on occasions there were conversations that denoted some disagreement between them because of the points of view they had respectively, where he reiterated that he was her friend but also tried to make her see and favor his point of view in relation to the dilemma of the company in relation to the project. We can see, on behalf of this Tribunal, that the personal approach that may have existed between Mr. David Castillo and Mrs. Berta Cáceres served the purpose of having information from her and keeping the company informed of her movements, and at the same time taking advantage of this information in the aspects that could favor the company.
4. Another indication regarding the participation of Roberto David Castillo in the death of Berta Cáceres are the conversations dated February 6, 2016 where David Castillo allegedly talks with Douglas Bustillo regarding an event called "mission", referred to as such by both parties, and which could not be carried out the day before, i.e., on February 5, 2016. At this point it should be noted that since July 2015 Douglas Bustillo had stopped working for DESA and yet he had this conversation with Mr. David Castillo without any explanation as to what mission or what suitable and logistical means he should provide, this together with details that are indicated below makes this conversation consistent with the accusatory theory. This conversation is both within the extracted data of expert witness David Amador under chat 260 of Mr. Douglas Bustillo, but also in chat 100 of the extraction made by the defense expert Shaun Vodde, and what is remarkable is that despite the fact that both have different chat numbers, in both conversations the same sequence of the conversation is preserved, which textually reads as follows: David Castillo in use of 9990-0946 tells Douglas Bustillo in the evening hours of February 05, 2016 "remember the accidents and of the scene" then Douglas answers him the next day "mission aborted today, yesterday it was not possible, I will wait for what you say because I no longer have logistics, I am at zero", in addition, "I do not need information, I need what you have budgeted for the job, the suitable and logistical means", and David Castillo then answers that same day February 06 in the evening hours "copied, mission aborted". With this spontaneous conversation between David Castillo and Douglas Bustillo, it is evident that they are talking about an event that was planned to take place the day before February 5, 2016, which is congruent with the illegal action to be executed against Mrs. Berta Cáceres for the following reasons:
It happens that paired to the conversation between Roberto David Castillo and Douglas Bustillo according to the chat dated February 02, 2016 extracted from the number of Douglas Bustillo taken from the extraction of Shaun Vodde page 261, Mr. Bustillo asks Mariano, his friend and former military comrade, if he went to get the cat, a name he uses to name something else that certainly is not an animal, but something he avoids mentioning in a direct way, using a code name but understandable to both. According to the conversations tapped and listened to in trial, on February 2nd also, coincidentally, Mariano talks with Henrry Hernandez about a loan that the former would bring the latter to carry out a job that they would do on the weekend, that is, from February 5th to 7th. See the wiretaps as input were used by the prosecution's expert witness. According to the information of the incoming and outgoing calls at the site provided by the cellular companies, it is revealed that on February 5, 2016, coincidentally, Henrry Hernández and Douglas Bustillo are located in La Esperanza, Intibucá, from 18:49, see folio 8,420 volume 18, city where precisely Berta Cáceres used to stay in the framework of the movement of the struggle for her land. On that day, Douglas Bustillo found public images of Berta Cáceres on his cell phone from 15:14 to 21:46 hours, see 970 of Shaun Vodde's extraction report. It is precisely on February 5 that chronologically, at 20:58, according to page 310 of Shaun Vodde's extraction, the extraction reveals that David Castillo writes to Douglas Bustillo to remind him of the accidents and the scene, and Douglas responds the following day, that is on February 6 at 09:17 hours that the mission was aborted, that the previous day it could not be done, that he would wait for what David had told him, that he needed budget and logistical means, to which David responds "mission aborted". Later, always chronologically, that same February 6, according to the dumps, the antennas locate Mr. Douglas, Mariano and Henrry in Comayagua, that is to say after having left La Esperanza, Intibucá. The fact that Mr. Douglas Bustillo told the accused David Castillo that they will wait for what he said because he has no logistics and is at zero is a relevant matter, given that as previously stated there was no working relationship between Bustillo with either DESA or David Castillo, and there is no other explanation or hypothesis that justifies the statement of what this mission is about, thus described by both, and that excludes the accusatory theory. Therefore, there is a full correspondence between the activities of Douglas, Henry and Mariano with the conversation with David Castillo, which certainly refers to a mission to be carried out in La Esperanza, Intibucá, on a date that indicates Douglas Bustillo to take into account the accidents and the scene. Therefore, if by means of telephone tapping and antenna information referred by the cell phone companies it is proven that Henrry Hernandez was located with others the night of the events in the vicinity of Berta Caceres' house and that they participated in her death a month later, there is no room to doubt that David Castillo talks with Douglas Bustillo about the attack against Berta Cáceres that had been planned since February and that on February 5 could not be carried out due to lack of budget, suitable and logistical means and that Bustillo asked the accused, which is also corroborated by the wiretaps between Mariano Díaz and Henrry Hernández that were also acknowledged in trial. Certainly, each one of the fragmented elements, such as the chats of Douglas Bustillo and Roberto David Castillo or the locations of Henrry Hernandez and Douglas Bustillo in those days, seen in isolation, do not provide a confirmed hypothesis, however, when linked together, they provide a logical coherence in a historical chain that is also linked to later events that are conforming and at the same time congruent with the intended purpose which was and was the death of Mrs. Berta Caceres. The above then denotes the involvement of David Castillo in the act, in the coordination that he carried out for the realization of the act with a positive contribution or participation when he tells Douglas to take care of the accidents and the scene, which also denotes his degree in the organization, called by Douglas Bustillo as " leader" in conversations that when talking about the budget,He is called by Douglas Bustillo himself as "leader" in conversations that when talking about budget, suitable and logistic means coincides coincidentally with a pretension to provide him with a certain amount of money of which he speaks on February 5th in a conversation carried out between Mariano Diaz and Henrry Hernandez, when between them they talk that "when the fish is done, Douglas told me that there were 50 more and another 50 more for him", in folio 8,632. This, we want to clarify, is an indication because it is at the end of the day a conversation between other co-participants, however, the Court searching in all the evidence provided did not find any support that such specific offer had started or originated from Mr. Roberto David Castillo, who is the person who is being judged.
5. The realization of the death of Mrs. Berta Cáceres a month later, that is to say on March 2, 2016 with the involvement of Douglas Bustillo in communication with Henrry Hernandez and other perpetrators, it turns out to be the first the same actors with whom they coordinated with David Castillo in February about the "mission", this leaves no doubt that the intention to carry out the act after February 5 always remained latent between them until the completion of the act that was carried out in March of that same year. And because in the immediate aftermath, that is, in the early morning of March 3, Douglas Bustillo maintains contact again with David Castillo according to the telephone records, which allows us to infer the sequence of information that Douglas provided to David about the act. This rules out that Douglas, on his own initiative, without being in simultaneous contact with DESA or David Castillo, carried out this action together with others without any reason or motivation other than the reasons sustained by the accusing parties.
6. The aforementioned gains strength taking into account in addition that on February 20, 2016, that is, days prior to the death, there were demonstrations of opposition and even damage to the infrastructure and machinery of the hydroelectric project.
7. Another element is that after the facts it had been demonstrated from the wiretaps evacuated in trial and from the written messages the approach intended by Douglas Bustillo to Roberto David Castillo by an indirect means, requesting a female to send a message to the accused on his behalf, an aspect that in the case agrees in the framework of actions that are not reproachable, on the contrary, alternative means of communication are sought to avoid a direct link.
8. Certainly the motive is not an essential aspect that must be present to demonstrate the typical act, to comply with the accreditation of the act and the participation, but in this case it was also evident that the death of Mrs. Berta Cáceres was related to the opposition that she led against the DESA company, which was executing the hydroelectric project. This was ratified not only by statements made by the prosecution, but it can also be inferred from witnesses who testify to the opposition that the victim had against DESA for the hydroelectric project that the company intended to develop. Although the defense has indicated that Mrs. Cáceres, because she was an environmental leader, had other types of threats, we have already indicated that these arguments, these theses of the defense do not fit in view of the evidence provided and the truth is that only the persons linked directly or indirectly with DESA were located in the vicinity of the Residential El Líbano in the city of La Esperanza, Intibucá, at the time of the facts on the night of March 02, 2016, and on March 03 in the early morning of that same month and year, whose conversations reveal the coordination of the illegal act getting to establish that they enter the house of the woman and kill her, moving that same early morning of March 03 to the northern part of the country. This is also, in the end, what links the accused to the facts given the communications mentioned between the material facts and Douglas Bustillo and this in turn between him and Roberto David Castillo. Therefore, the argument made by the defense is not supported by objectively verified evidence, aspects that will be further developed in the sentence. In summary, for this Court, it was corroborated that the motive for the murder of the Lenca environmental leader arose on the part of persons linked to the DESA company as a result of the strong opposition that she was carrying out together with members of the COPINH organization against the construction of the Agua Zarca hydroelectric project in defense of the environmental resources and the water sources of the Gualcarque River.
For all of the above, the Court with National Jurisdiction is fully convinced that the evidence described above, besides being sufficient and not contradictory, produces certainty that Roberto David Castillo has participated in the present case as co-perpetrator of the crime of murder against Berta Isabel Cáceres, who executed actions tending to its consummation, had control and took part of how and where the crime would be executed.
In accordance with what has been said in the previous sections, the accused David Castillo is responsible as co-perpetrator of the aforementioned crime of Murder, in accordance with the provisions of Article 25 of the Criminal Code, due to his voluntary and material participation in the facts, since all the acts required by the aforementioned criminal types were executed. This was evidenced in the trial, inferring from the evidence provided, that the accused acted on the basis of knowledge, where his will contrary to law is manifest, by injuring the protected legal right such as the life of Mrs. Berta Isabel Cáceres, through other persons.
Although the Prosecutor's Office considered that Mr. David Castillo should be sentenced as an inducer, this Court considers that the figure that best suits the participation of the accused is that of co-perpetrator. Article 25 of the Criminal Code states that whoever carries out the punishable conduct, in whole or in part, by himself or by using another or others as instruments, whether or not they are criminally responsible, as well as those who carry it out jointly, is the perpetrator. The legislature has drafted this article 25 indicating that those listed in the norm are considered perpetrators, since, in strict adherence to criminal science, the inducer and the perpetrator constitute different states or degrees of participation, the inducer not being a figure equivalent to the perpetrator, but a participant.
In the particular case of co-perpetration occurs when two or more persons, based on a common agreement, carry out an act jointly, through an objective distribution of functions for its realization, so that there is a co-domination, where each co-perpetrator controls the entire event together with the other co-perpetrators. In co-perpetration all are perpetrators, therefore, each of those who carry out the crime must have the typical characteristics required to be the perpetrator of the crime and thus be liable for the actions executed jointly and those executed by the others who are part of the common agreement.
Doctrinally, under the theory of dominion of the act, co-perpetrators are those who act in common agreement, under a pre-conceived plan, each one carrying out a part or role that corresponds to him, so that all are responsible for the totality of the act that is executed.
In this order of ideas, in the present case, the control of the act by Mr. Roberto David Castillo was accredited, being proven by the evidence of the prosecution, that during the sequence of the facts, he organized and planned before and during, under the same agreement of wills together with others.
For the aforementioned considerations, the First Chamber of the Court of First Instance with National Territorial Jurisdiction in Criminal Matters, by unanimous vote, decides:
FIRST: To condemn as in effect we condemn Mr. Roberto David Castillo for the crime of murder to the detriment of Berta Isabel Cáceres.
SECOND: Declare the nullities filed by the defense without grounds, regarding which the reasons will be developed in the sentence. Likewise, the exclusions of the assessment of the evidence, requested by the prosecuting and defense parties, will be developed in the respective assessment of the sentence.
THIRD: As a consequence of this conviction, the precautionary measure of preventive imprisonment that the accused has been serving until now must continue.
FOURTH: Sentence determination hearing is scheduled for August 03, 2021 at 1:30 pm in this same courtroom.
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