On December 29, 1996, the people of the Republic of Guatemala
(hereafter the State or Guatemala) celebrated the signing of the Final
Peace Accord between the Government and the Guatemalan National
Revolutionary Unity (URNG) that brought to a close 36 years of armed
conflict. The cost of the
conflict, in terms of human suffering, is difficult to describe or
150,000 Guatemalan lives were claimed, many were injured or disabled,
and thousands were displaced or sought refuge abroad.
The signing of the final accord was a historic moment for
Guatemala and the region.
The IACHR has closely followed developments in Guatemala for
many years, and regularly reported on gross and systematic human
rights violations during the period of the armed conflict.
Recognizing that the signing of the peace accords presents new
opportunities for Guatemala, and has initiated a process of
transformation, the Commission presents this report under its criteria
of reporting on countries in a situation of transition.
THE POLITICAL CONTEXT AND DEVELOPMENTS IN 1996
President Alvaro Arzú (National Advancement Party, PAN) took
office on January 14, 1996, pursuant to an election process that was
deemed by observers, including the OAS Observer Mission, to have been
free and fair overall.
24 parties participated in the campaigning.
A coalition of grassroots and civil sector organizations, the
New Guatemalan Democratic Front (FDNG), some of whose members had
previously promoted abstention from the political process, actively
campaigned in the 1996 elections, and six of its candidates were
elected as deputies.
The election was carried out largely in accordance with
applicable norms, but was marred by isolated incidents of violence
that may have been related to or exacerbated by the electoral process.
During late 1995, several candidates for office were murdered,
including a candidate for Congress in Moyuta, Jutiapa, for mayor in La
Democracia, Huehuetenango, and for mayor in San Lucas Tolimán, Sololá,
as well as two activists campaigning in San Jeronimo, Baja Verapaz,
and a senior political party leader in El Petén.
Other reported incidents included the attempted kidnapping of a
mayoral candidate in Momostenango, Totonicapán, and an attack on the
home of the mayor of Chiquimula.
Approximately 47% of registered voters participated in the
first round of voting, and 37% in the second.
Voter registration was low, as was the participation of those
voters who did register. Access to polling locations was impeded for some voters
living in remote areas, who had no means to travel to polling
stations. These voters
also experienced difficulties in registering, because Guatemalan law
limits the location of voter registration offices to municipal
capitals. Further, the
registration process has been described as unnecessarily cumbersome.
Just weeks after his inauguration, President Arzú decided to
cease all counterinsurgency actions, and the URNG indicated that it
would cease attacks against government targets.
On May 6, 1996, the Government and the URNG signed the accord
on the socioeconomic and agrarian situation which commits the
Government to take steps to improve the situation of the poorest and
most marginalized sectors of national society.
It includes provisions concerning social development,
education, health, housing and workers' rights, women's rights, land,
tax policies and rural development.
Prior to the signing of the final accord, the Government and
the URNG signed accords on the role of the Army, a definitive cease
fire, constitutional reforms and the electoral regime, the
reincorporation of the URNG, and the implementation and verification
of the peace accords. Pursuant
to a January 20, 1997 resolution of the Security Council, Guatemala
will be able to count on the assistance of international military
observers provided under the auspices of the UN with respect to
compliance with certain accords.
155 military observers have been dispatched to various
locations throughout Guatemala for three months to verify the
definitive cease-fire agreement, the separation of forces, and the
disarming and demobilization of the combatants of the URNG.
In accordance with its ongoing role of monitoring compliance
with certain accords, MINUGUA continued to verify and report on the
situation of human rights during 1996. MINUGUA has played a role of unique importance since its
establishment in November of 1994, pursuant to the signing of the
Government-URNG global accord on human rights.
Its work verifying compliance with that accord and the relevant
portions of the accord on the identity and rights of indigenous
peoples is credited with contributing to the opening of a new
political space in Guatemala, and its presence throughout the country,
as well as its investigation of and reporting on human rights
violations, have encouraged and supported advances in the human rights
The Dissolution of the PACs and Reforms within the Security
Following the initiative of then-President de Leon Carpio to
decommission approximately 25,000 military Commissioners in September
of 1995, in September of 1996, President Arzú took the critical step
of disbanding the Civil Defense Patrols, later titled Voluntary Civil
Defense Committees (PACs or CVDCs), estimated to have numbered over
500,000 at the height of their activity.
the IACHR and a range of national and international organizations have
reported, the military commissioners and PACs created, organized and
directed by the armed forces committed many serious human rights
violations. The Ombudsman
for Human Rights has consistently investigated and reported on
violations by the PACs, and twice issued resolutions requesting that
the National Congress disband them.
these units were purportedly required to consist of volunteers, in
fact, many members were forced to participate in patrols.
Those who refused, and community members who opposed the
patrols were subjected to threats, attacks and, in a number of cases,
murder. While certain PAC members and military commissioners were
known in their communities to have committed serious violations, they
were almost always able to act with impunity.
During 1996, the IACHR opened Case 11.677, which deals with
allegations that former PAC members had persecuted Diego Velásquez
Soc and Matías Velásquez, and then killed them on May 24, 1996. The IACHR is continuing to process a substantial number of
other cases dealing with alleged human rights violations by PAC
steps taken by the Executive to disband and disarm the PACs are of
great significance, and the IACHR values them in light of its
consistent recommendations in favor of their dissolution.
MINUGUA reported in this regard that the number of
denunciations attributed to members of the PACs "had declined in
an important way."
As the Ombudsman for Human Rights has repeatedly cautioned,
however, verification of the dissolution and disarmament is essential.
Early reports indicate that some of the disbanded PACs have yet
to be disarmed, and that in some communities, similar successor groups
are being formed. During
the first semester of 1996, MINUGUA reported that:
The emergence of various civilian organizations that carry out
surveillance patrols, establish curfews and make arrests has also been
observed. Such groups
exist, for example, in Comitancillo, San Marcos; in villages in Alta
Verapaz; in Samayac and San Lorenzo, Suchitepéquez; and in Santiago
Atitlán and San Lucas Tolimán, Sololá.
Verification has shown that whatever their names and purported
goals, these are armed groups which take upon themselves tasks which
properly belong to the police force, and their activities, tolerated,
influenced or controlled by State officials, adversely affect
IACHR is also concerned about the number of firearms in circulation,
the prevalence of private armed security guards or groups, and the
lack of mechanisms to monitor and control either.
1996, the Arzú Administration took important and promising steps to
begin purging the armed forces and police of tainted members.
A number of Army generals and colonels were dismissed.
Similarly, a significant number of policemen were fired in
connection with alleged corruption and human rights violations.
During the first half of 1996, MINUGUA reported that 113
members of the National Police and 25 members of the Treasury Police
had been dismissed, and that more than 100 officers implicated in the
commission of crimes had been committed to stand for trial.
its part, the Congress of Guatemala acted to reform the Military Code,
thereby making it inapplicable to members of the armed forces
implicated in connection with ordinary offenses.
The Commission values this important step to curb the power of
military tribunals and ensure that crimes perpetrated by military
personnel falling within the criminal code shall be subject to the
jurisdiction of the ordinary courts, which is consistent with its
recommendations on this subject.
The jurisprudence of the IACHR confirms that human rights
violations, in particular, properly fall within the criminal code and
the jurisdiction of the ordinary courts.
This reform thus represents a necessary and significant
advance. It was reported
that a number of cases involving military officers were transferred to
the civilian courts in 1996.
reports indicate that the armed forces continue to play a significant
role in anti-crime activities which properly pertain to the police.
The Commission has consistently expressed concern with respect
to the use of members of the armed forces to fight crime, which means
deploying troops trained for combat in situations requiring personnel
trained for law enforcement. Additionally, while the police are trained to interact with
and assist civilians, armed forces are trained to fight a designated
enemy. Moreover, the use
of military personnel, who serve under the authority of the Executive,
to carry out activities related to the investigation of crimes raises
concern with respect to the critical need for independence in judicial
investigations. In its
Sixth Report, MINUGUA indicated that, in some cases, the involvement
of military personnel in the investigation of criminal cases involving
fellow members had the effect of impeding prosecution.
agreement 90-96 of March 7, 1996 established a certain level of
separation in the development of public security plans, but the
overlap in civilian and military functions continues in practice.
As MINUGUA has stated, "in order to combat impunity
effectively, it is essential to professionalize the National Police
and ... this, in turn, requires the separation of police and military
Given the climate of personal insecurity and the lack of public
confidence in the police, professionalizing and reinforcing the
ability of the civilian security forces to enforce the law must be a
indicate a lack of discipline in these forces, and the need to develop
stronger systems of training and oversight. The IACHR emphasizes the
importance of developing the organizational structures, training
models, resources and oversight necessary to ensure that the police
are able to discharge their mandate independently of the military.
THE SOCIOECONOMIC CONTEXT
Commission notes that some progress has been made with respect to the
socioeconomic situation since it last reported on this in its Fourth
Report on the Situation of Human Rights in Guatemala of 1993.
According to statistics reported by the UN Development Program,
Guatemala's human development index has risen, and it is now listed as
a country having medium human development.
However, these same statistics indicate that many Guatemalans
continue to lack even the basic necessities of life.
is estimated that approximately 80% of the population lives in
poverty, with 59% in conditions of extreme poverty.
UNDP data collected from 1985 to 1995 indicate that only 34% of
the population enjoyed access to health services, 62% enjoyed access
to safe water, and 60% to sanitation services.
The most recent statistics indicate that 54.6 of adult
Guatemalans are literate.
When urban and rural populations are compared, it may be noted
that rural populations are at a severe disadvantage with respect to
access to the foregoing services.
his 1996 report, the Ombudsman for Human Rights reported a rise in the
number of denunciations received concerning violations of economic,
social and cultural rights. The Government of Guatemala has acknowledged the need for
reform and for urgent action with respect to the social, economic and
cultural life of the country. The
accord concerning socioeconomic aspects and the agrarian situation
sets forth certain objectives to be met in this regard, and the
Government has indicated that reforms to the tax structure will be an
important aspect of change.
THE RIGHT TO JUDICIAL PROTECTION AND DUE PROCESS
Guatemalan judiciary remains largely unable to deliver justice in the
timely and therefore responsive manner required.
While the problem affects all spheres of the judiciary, it is
particularly acute in the criminal justice context, where undue delay
in investigation and prosecution prejudice the right of both the
victim and the accused. This
is true with respect to cases concerning human rights violations as
well as those concerning common crime.
international community has been informed on numerous occasions in the
past about the problems within the administration of justice and the
far reaching negative impact on the situation of human rights in
Guatemala. Thus, MINUGUA
reported in the first half of 1996 that:
[i]n the current situation of impunity, the majority of serious
crimes and human rights violations go unpunished ... not because it is
impossible to determine what has happened or to identify the
perpetrators ... [but] due to the inefficiency of the national bodies
responsible for investigation, judgment and punishment, as well as the
influence that certain groups, mostly those connected with the State,
have upon those bodies.
Arzú Administration has taken some important initiatives to confront
impunity, including the dismissal of tainted members of the security
forces and police. Apart from these valuable initiatives, the necessary
coordination and cohesion has yet to be brought to bear on the fight
in the criminal justice system are attributed to a range of causes,
including the lack of coordination between the responsible
institutions, insufficient human and material resources, threats and
intimidation against judges and prosecutors, and corruption within the
system. Although the
current Code of Criminal Procedure, which took effect in mid-1994,
provided for a number of noteworthy advances in the processes of
criminal justice, problems with implementation continue to impede its
proper application. Given
that independence and impartiality are fundamental requisites for the
exercise of judicial power, the IACHR is particularly concerned by
reports it has received concerning the use of threats and persecution
against judges and prosecutors. MINUGUA reported that two investigators of the Public
Prosecutor's Office were murdered in May of 1996, while working on a
case, and that the Prosecutor had been subjected to death threats.
The Commission views the mid-1996 approval by Congress of the
law concerning the protection of persons connected with the
administration of criminal justice as an important step in what must
be a comprehensive effort to address and ameliorate this situation.
lack of popular confidence in the ability of the judiciary to
discharge its mandate is manifesting itself in various patterns of
illegal activity, including lynchings,
acts of "social cleansing,"
and the use of force and violence by private security guards or
Precise statistics on lynchings are not widely available.
The Grupo de Apoyo Mutuo reported 71 lynchings in 1996.
In several cases, such as the killing of artist Oziel Calderon
and others, media reports have made it clear that the victims of
lynchings were targeted as a result of mistaken identity.
In any case, such acts of vigilantism represent a flagrant
rejection of the most basic principles of due process.
These patterns constitute a grave threat to the democratic
order of the State, for they undermine the rule of law itself.
The IACHR is particularly concerned to note that many of these
acts have been met with little or no response on the part of the
State. The Commission stresses that such extra-legal activities
cannot be tolerated, and that the appropriate remedy within the
present transition process is to strengthen the ability of the police
to fight crime.
respect to the administration of justice and the right to liberty, the
Commission has received consistent reports that preventive detention
and substitute measures are applied arbitrarily.
According to the Archbishop's Human Rights Office and MINUGUA,
defendants with few resources are regularly subjected to pre-trial
incarceration with little regard for the gravity of the crime alleged,
the risk of nonappearance or the need to protect the investigation
from interference, while others accused of offenses including homicide
and kidnapping are granted substitute measures.
Notorious examples where substitute measures were granted and
the accused failed to appear include the cases of former military
commissioner Raúl Martínez, believed to have kidnapped a UN Mission
team among other crimes, and Victor Roman Cutzal, implicated in the
murders of Presbyterian priests Serech and Saquic.
Arrest orders subsequently issued in those cases have yet to be
Commission is also very concerned by reports that minors in detention
facilities are not routinely separated from adults as required by
Article 7 of the American Convention.
Juvenile facilities are often not available in outlying areas,
consequently minors may be held in inappropriate facilities with
Past Violations of Human Rights and the Need for Mechanisms to
February of 1997, the Commission for the Historical Clarification of
the Truth was established with the naming of German professor and
former UN Special Expert on Human Rights Christian Tomuschat to lead
the Commission, whose members are educator Otilia Inés Lux García de
Cotí and jurist Alfredo Balsells.
The Commission is initially invested with six months to perform
its investigation, although an additional period may be added if
necessary. It is "to
clarify with objectivity, equity and impartiality" the human
rights violations and violence that have caused the suffering of the
Guatemalan people, and "that are linked with the armed
is to "clarify fully and in detail" the violations at issue,
but will neither individualize responsibility nor have any judicial
intent or effect. The
IACHR wishes the Truth Commission success in fulfilling its important
mandate of investigation and clarification of past violations.
The provision of appropriate human and material resources will
be an important factor in the ability of the Truth Commission to
accomplish its work.
full scope of the violations to be studied is not clear, but the
conflict is widely reported to have left more than 150,000 dead, 440
villages razed, 1,000,000 internally displaced, and 45,000 refugees.
During 1996, a number of exhumations were carried out to
produce the physical evidence of crimes which have yet to be
officially accounted for, investigated, prosecuted or punished.
Guatemalan Forensic team conducted exhumations in Agua Fría, Chicaman,
Quiche; Josefinas, La Libertad, Petén; Pinares, Cahabon, Alta Verapaz;
Pan de Sánchez, Rabinal, Baja Verapaz; Saguachil, Chisec, Alta
Verapaz; El Chal, Dolores, Petén; San Diego, La Libertad, Petén;
Chorraxaj, Joyabaj, Quiche; Las Flores, Dolores, Petén; and La
Amistad, Dolores, Petén.
The official revelation of the truth of past human rights
violations can perform a critical function in the process of healing
and reconciliation, and in setting the stage for appropriate
prosecution and punishment within the judiciary. The report of the Truth Commission in Guatemala will have the
potential to help consolidate the process of reconciliation initiated
at the turn of 1996. Revelation
of the atrocities committed during the armed conflict, set forth in an
officially sanctioned account, will enable the people of Guatemala to
reflect upon them, develop meaningful responses, and take steps to
ensure peace for the future.
must be taken in this regard of the December 18, 1996 adoption by the
Congress of the "Law of National Reconciliation," following
the December 12, 1996 signing by the Government and the URNG of an
The Law was adopted amidst great debate within Guatemala
society. A broad
coalition of social sectors and nongovernmental organizations united
under the banner of the "Alliance against Impunity" to
oppose the accord and the adoption of the law.
to the Law, the extinction of criminal responsibility may be applied
to: political crimes against the State, the institutional order and
public administration (Article 2); common crimes "directly,
objectively, intentionally and causally" linked to political
crimes (Article 3); and common crimes perpetrated with the aim of
preventing, impeding or pursuing political and related common crimes
(Article 5). However,
Article 8 establishes that amnesty shall not apply to the following
crimes: genocide, torture, forced disappearance, and those with
respect to which there is no statute of limitations or for which
amnesty is prohibited under internal law or Guatemala's international
Commission has received information that the Presidential Coordinating
Commission for Executive Policy in Human Rights Matters (COPREDEH) and
MINUGUA have taken some steps to inform judges of the relationship
between the provisions of this law and Guatemala's international
treaty obligations. Members
of the Alliance against Impunity filed a constitutional challenge to
the law which remained pending as of the end of February, 1997.
The Commission is informed that, as of the end of February
1997, requests for amnesty under the law have been denied in the cases
initiated with respect to the killings of Myrna Mack and Jorge Carpio
In this regard, the Commission has, in a variety of specific
cases, articulated criteria concerning the interrelationship between
impunity and laws which grant amnesty and comparable measures.
THE RIGHT TO LIFE AND PHYSICAL INTEGRITY
pattern of human rights violations in Guatemala has changed for the
better as the armed conflict has drawn to a close.
As the Sixth Report of MINUGUA indicated, "it is
encouraging that during this period no forced disappearance had been
proven" and there had been a "notable decline in the number
of denunciations admitted with respect to that grave human rights
consolidates the perception that this condemnable practice is not
carried out at this time in Guatemala."
The Commission has noted a decline in the number of petitions
received with respect to the right to life and physical integrity as
these positive signs with respect to the right to life, the Commission
must indicate that denunciations concerning this right continue.
For example, the Office of the Ombudsman reported that, during
1996, it had processed 173 cases concerning extrajudicial execution,
47 concerning forced disappearances, 15 concerning violations of
physical integrity, and 12 concerning torture.
For the first ten months of the year, the Archbishop's Human
Rights Office reported processing 112 cases of extrajudicial
execution, and six cases of torture.
respect to the right to life, during the first half of 1996 MINUGUA
verified 13 of 69 denounced cases of extrajudicial execution; 42 of 54
attempted extrajudicial executions; and 91 of the 267 instances of
death threats that had been brought to its attention.
These denunciations cover situations prior to 1996 as well.
With respect to the right to physical integrity during this
period, 2 of 8 cases of torture were verified; 9 of 10 complaints of
cruel, inhuman or degrading treatment; 27 of 73 complaints of
ill-treatment; 103 of 116 instances of excessive use of force; and
1010 of 1060 of other threats against persons. Many of these complaints, which refer in significant part to
situations prior to the current Government, were still being verified.
The UN Mission noted that the absence of adequate investigation
in cases involving violations perpetrated by state agents or groups or
individuals linked to them made verification difficult.
During the latter half of 1996, MINUGUA verified 76 instances
of extrajudicial execution; 214 instances of death threats; 13
violations of the right to be free from torture; 12 of the right to be
treated humanely; 66 of mistreatment; 23 of excessive use of force;
and 206 of other threats against persons.
reported that the improper use of firearms by members of the security
forces had resulted in deaths, and reflected an institutionalized lack
of respect for the right to life, and the inadequate preparation and
training of the agents.
35. The Commission is especially troubled to observe the continuing incidence of threats and violence against individuals associated with human rights promotion, labor and community leaders, members of university communities, and witnesses in cases concerning human rights violations, as well as the persistent lack of sufficient investigation, protective measures and prosecution of those responsible.
March of 1996, pursuant to Article 63.2 of the American Convention,
the IACHR requested that the Inter-American Court of Human Rights
issue provisional measures to protect the life and physical integrity
of Father Daniel Vogt (case 11.497), who had been subjected to a
series of threats in connection with his work with the community in El
Estor. The following
month, the Commission requested provisional measures to protect
witnesses in the case concerning the murders of Presbyterian priests
Pascual Serech and Manuel Saquic in 1994 and 1995 (case 11.570) who
had been subjected to threats in connection with the prosecution of
that case. The Commission
requested that provisional measures initially adopted in 1994 and
1995, in the cases of Juan Chanay Pablo ("Colotenango," case
11.212) and Jorge Carpio Nicolle (case 11.333) be renewed. The foregoing requests were granted by the Court by
resolutions dated September 10, 1996, ordering the Government and the
Commission to report periodically on the situation in each case.
IACHR, pursuant to Article 29 of its Regulations, addressed the
Government on seven occasions to request that it adopt precautionary
measures in favor of 28 named individuals (these are listed in the
section of the Annual Report concerning the activities of the IACHR),
including two sets of labor activists allegedly targeted for threats
and violence in connection with their activities; Rosalina Tuyuc,
Nineth Montenegro, Amílcar Méndez and Manuela Alvarado, members of
the National Democratic Front who had been threatened with death;
workers in the legal office IXCHEL, which defends human rights in the
Petén; and witnesses in the case concerning the murder of Martín
Pelicó Coxic and six others (Case 11.658) in San Pedro Jocopilas, who
had been subjected to attacks and threats in connection with the
prosecution of that case.
The Death Penalty and Article 4 of the American Convention
to the entry into force of the American Convention with respect to
Guatemala, Article 201 of its Criminal Code established the death
penalty for the perpetrators of a kidnapping where the result was the
death of the victim. Via
legislative decrees 38-94, 14-95 and 81-96, the Congress amended
Article 201 so that it provides for the imposition of the death
penalty for the perpetrator of a kidnapping even where it is not
followed by the death of the victim.
MINUGUA, the Ombudsman for Human Rights and the Archbishop's
Human Rights Office joined other groups in cautioning that this reform
ran counter to both the Constitution and the American Convention on
Human Rights. Counsel for
the Archbishop's Office brought a constitutional challenge against
decree 14-95. In its
March 26, 1996 opinion rejecting that challenge, the Court of
Constitutionality held that the Constitution did not expressly
prohibit the extension of the death penalty in the form established,
and that, although the Guatemalan Constitution accords international
human rights treaties precedence over internal law, the American
Convention did not constitute a parameter for constitutional analysis.
January 30, 1997, the Ninth Chamber of the Court of Appeals commuted
three death sentences issued in a particular case to noncommutable
sentences of 50 years on the grounds that: Guatemala is Party to the
American Convention; pursuant to the Constitution, international
treaties have precedence over internal law; and, Article 4 of the
American Convention establishes that the death penalty may not be
extended to crimes for which it was not contemplated at the time of
ratification. The Ninth
Chamber ruled that the court of first instance had misinterpreted and
misapplied Article 201 of the Criminal Code as amended by decree
14-95, thereby giving rise to a violation of Article 4.2 of the
American Convention. The
Commission values this latter ruling, as it gave due consideration to
the international obligations of the State as a Party to the American
Convention in interpreting and applying domestic law.
entering into the specifics of the reform in question, the Commission
recalls that the text of Article 4, subsection 1, of the American
Convention establishes that the right to life shall be respected.
Subsection 2 stipulates that:
In countries that have not abolished the death penalty, it may
be imposed only for the most serious crimes and pursuant to a final
judgment rendered by a competent court and in accordance with a law
establishing such punishment enacted prior to the commission of the
crime. The application of
such punishment shall not be extended to crimes to which it does not
4.3 stipulates that "[t]he death penalty shall not be
reestablished in states that have abolished it."
Each State party to the American Convention has undertaken,
pursuant to Article 2, to ensure that every protected right is ensured
by internal legislative or other provisions.
Consequently, at the time of ratification, each State party
agrees to maintain its internal legislation in conformity with its
obligations under the Convention.
IACHR further notes in this regard the very clear interpretation of
Article 4 articulated by the Inter-American Court of Human Rights in
its Advisory Opinion OC-3/83 concerning "Restrictions to the
Death Penalty." With
respect to Article 4.2, the Court determined that there could be no
doubt that this provision forbids the extension of the death penalty
"to crimes for which it did not previously apply."
"In this manner any expansion of the list of
offenses subject to the death penalty has been prevented."
(Emphasis added.) In accordance with the principle of irreversibility of
rights, Article 4.2 constitutes, in the words of the Court, "an
absolute prohibition" on such expansion.
Reference is also made to Advisory Opinion OC-14/94 of December
9, 1994, which deals with related questions of state responsibility
and affirms the foregoing understanding of Article 4.2.
of questions relating to the expansion of the death penalty under
Article 4, the IACHR notes that on September 10, 1996, it addressed
the State of Guatemala to request that the latter take the measures
necessary to stay the scheduled executions of Roberto Girón and Pedro
Castillo Mendoza, who had been sentenced to death for the rape and
murder of a child. This
action was requested in order to allow the IACHR to analyze an August
14, 1996 petition alleging that their trial had not met certain basic
requisites of due process. Specifically,
the petitioners alleged that the accused had not had a legal defense
provided by lawyers. The
September 12, 1996 response of the Government indicated that the
request would not be implemented because the domestic law of Guatemala
did not provide for such measures to suspend the execution of a death
sentence. Requests for
special measures are framed in terms of the competence of the IACHR to
act on petitions, under Article 41.f of the Convention, and to request
precautionary measures when necessary to avoid irreparable harm to
persons, under Article 29 of its Regulations.
In looking to the duty of each member of the inter-American
human rights system to give effect to its norms, the Commission finds
the response of the State in this matter to have contravened that
duty, and the rejection of its request to have impeded the discharge
of its functions.
FREEDOM OF EXPRESSION
before the Commission indicate that free expression is generally
exercised through the various forms of media.
A wide range of information and opinion, including political
opinion, is reflected in the popular press.
The communications media has played an important role in the
process of opening political dialogue.
Inter American Press Association reported, however, on a series of
threats against journalists in connection with their work.
Although neither the identity of the actors nor the motivation
behind the acts had been clarified, the Press Association reported
that, among other violent incidents, a bomb had exploded in front of
the home of the Director of Radio Victoria; a fragmentation
grenade was found in the parking lot of La Prensa; and three
journalists had been murdered. The
Press Association expressed its continuing concern that such incidents
be properly investigated, and, particularly called for the
clarification of the murder of Jorge Carpio Nicolle in 1993.
The Commission has received additional information that
instances of intimidation and violence continue against
representatives of the communications media.
MINUGUA noted in this regard the kidnapping and torture of
Vinicio Pacheco, of Radio Sonora, in February of 1996.
expression is a crucial right in a democratic society, is expressly
guaranteed under the American Convention, and must be protected in
accordance with that status. It cannot be properly exercised in a climate where threats
and violence against journalists are tolerated.
The IACHR reiterates that it is the responsibility of the State
in the case of crimes by public or private actors to ensure
appropriate investigation, prosecution and punishment.
THE SITUATION WITH RESPECT TO LABOR AND LAND RIGHTS
Commission continues to monitor the situation of labor rights and
working conditions in Guatemala.
Subsequent to its ratification of Convention 87 of the
International Labor Organization, Guatemala adopted a new Regulation
for the Recognition of the Juridical Personality and the Approval of
Statutes and Registration of Labor Organizations to facilitate these
processes before the Ministry of Labor and Social Welfare.
respect to working conditions, on January 2, 1996, the minimum wage
was raised to 17.60 quetzales per eight hour day ($2.93).
Although the law sets this wage, it is not always complied with
and is insufficient to provide the minimum necessities.
Health and safety standards are criticized as inadequate, and
are not properly enforced in any case.
The UN Committee on Economic, Social and Cultural Rights
indicated that it was:
deeply disturbed at the apparent flagrant disregard of labour
laws, the alarming reports of employer impunity, the lack of respect
for minimum wages, for conditions of work and unionization,
particularly as they affect individuals employed in a large number of
the farming sectors.
Committee took note that certain accords call for steps to be taken to
enhance the monitoring and enforcement of labor standards, but expressed
continuing concern with respect to the question of achieving the
implementation of such steps.
respect to the agrarian situation, the Committee stated that "the
issue of land ownership and distribution of land is crucial to
addressing economic, social and cultural grievances of a substantial
segment of the population."
The occupation of farms continues to generate tension in certain
departments of Guatemala. Such occupations are most often carried out by indigenous
communities seeking to reclaim land taken in favor of ladino
proprietors, or by finca employees seeking to protest working
conditions and low pay. While
the Government has reported that evictions are only carried out
peacefully and pursuant to judicial order, the IACHR has received
reports of evictions carried out by land owners who have employed
violence. The IACHR will
investigate these situations in the cases that have been presented in
order to establish their truth.
its report on the second semester of 1996, MINUGUA indicated continuing
concern with respect to the use of violence in carrying out evictions.
They cited a September 1996 instance in Los Ocós, San Marcos, in
which the eviction of campesinos occupying a farm by the National
Police left one person dead and dozens of others injured.
On a more promising note, MINUGUA reported that it had been able
to assist the Government in peacefully resolving the occupation of a
petroleum installation by workers and the blocking of a highway by local
producers, in November and December of 1996, respectively, through the
use of dialogue and negotiation.
tension concerning land distribution and the agrarian situation
continues to have an impact on the situation of returnees.
For this and other reasons, the pace of return slowed during
1996. The United Nations
High Commissioner for Refugees reported that 2,599 refugees returned
during the first half of 1996, just over a quarter of the number who had
returned during the same period the year before.
Just over 4,000 refugees were reported to have returned during
THE RIGHTS OF CHILDREN
to the special needs and vulnerability of children, Article 19 of the
American Convention on Human Rights specifies that every minor "has
the right to the measures of protection required by his condition as a
minor on the part of his family, society and the state."
In a country such as Guatemala, where approximately 46% of the
population is under 15 years of age, the situation of children and their
rights must clearly be in the forefront of State concern and action.
In October of 1996, the State of Guatemala adopted a new Code of
Childhood and Youth, although it has yet to enter into force.
Government has reported that the infant mortality rate, which had been
59 per 1000 in 1990, fell to 40 per 1000 in 1993, and that the mortality
rate for children under 5 had fallen from 105 to 69 per 1000 over the
These rates, however, remain higher within certain socioeconomic
Pursuant to the peace accords, the Government is committed to
attaining a 50% increase in spending on education, nutrition and health
between 1996 and 2000. Increased
spending in these areas will be particularly important for children, who
continue to suffer in large numbers from the effects of poverty,
malnutrition, and lack of access to education and health care.
Government reports indicate that the school system covered 68.2%
of children of primary school age (7 - 12), but only 20% of those
between 13 and 15, and 10.9% of those between 15 and 18.
IACHR is particularly concerned by the situation of children who, for
reasons of economic necessity, are compelled to work rather than attend
school. A 1995 UNICEF study
indicated that close to 1,000,000 Guatemalan children were working
rather than attending school.
Moreover, the Commission is informed that working conditions for
many such children are poor, that there are few systems to monitor or
enforce standards, and that Guatemala's obligations under the Convention
on the Rights of the Child in this regard are not met.
Government has recognized that the situation of the country's street
children is made tragic by their victimization through acts of violence
that, "until recently, went completely unpunished."
The Office of the Ombudsman has a special program, the Defensoría
de los Derechos de la Niñez, dedicated to protecting the rights of
children, and COPREDEH, the Ministerio Público and Casa Alianza
participate in a standing commission to monitor the situation of street
children. The IACHR notes
that, in December of 1996, a private security guard was sentenced to
prison for the murder of street child Oscar Rene Marroquin, and two
policemen were sentenced as accomplices for having helped conceal the
body. The Commission recognizes these sentences as an important
response, and expresses its hope that every such violation will be met
with the required responses of investigation, prosecution and punishment
so that these crimes do not languish in impunity.
the IACHR continues to receive reports of violence against street
children, which it will examine in the cases presented, including
assaults and sexual crimes, illegal and arbitrary detention, and in
several instances, homicides. Casa Alianza continues to document such cases, which
according to this institution include instances of abuse at the hands of
In this regard, the UN Human Rights Committee stated in 1996 that
deplores the situation of street children in Guatemala, who are
subjected to serious violations of their human rights ... particularly
their right to life and not to be subjected to torture and
Committee is concerned at the intensity of abuse against street children
by persons of authority, including the public and private police.
its part, on January 30, 1997, the Commission submitted the case of
Anstraum Villagrán et al. (11.383), known as "Los Bosques de
San Nicolás," before the Inter-American Court of Human Rights,
in which the Commission found the State responsible for violations of
the right to life and to be free from torture practiced by state agents
against several Guatemalan street children in 1990.
Equality and the Rights of the Indigenous Population
participation in national life of the indigenous peoples of Guatemala,
who constitute more than half of the population, has advanced in several
significant ways. In the political sphere, the IACHR has taken note of
the representation gained as a result of the elections held in the
latter part of 1995 and January of 1996, whereby indigenous candidates
were elected mayor in 100 municipalities, including the departmental
capitals of Sololá and Quetzaltenango, and six indigenous deputies were
elected to Congress.
the State level, a number of significant steps have been taken.
In 1995 the Government initiated measures to establish the crime
of racial and ethnic hatred, which had not previously been codified. In 1996, Guatemala ratified International Labor Organization
Convention 169. Within the
framework of the peace negotiations, the Government and the URNG signed
an accord on the identity and rights of indigenous peoples.
the same time, it must be noted that Guatemala has a bilingual education
program designed to provide schooling in mostly indigenous areas in the
local language, with Spanish being introduced at a later stage.
The language training methodology used was recently accorded a
prize by UNESCO.
prejudice to these advances, the situation of the indigenous population
with respect to their access to justice continues to concern the IACHR.
The lack of respect for cultural diversity which persists results
in de facto and de jure instances of discrimination. For example, the courts generally operate in Spanish,
although many of Guatemala's inhabitants speak an indigenous language,
and rarely are able to provide the translation or interpretation
necessary to a ensure due process.
Additionally, it is often very difficult for indigenous
populations in outlying areas to have access to justice because of the
scarcity of facilities. MINUGUA
has been working with the State to strengthen the ability of the
judiciary to respect the linguistic pluralism of the country, and to
provide a center for the administration of justice in Nebaj, which would
offer prosecution, defense and police services not currently available.
UN Committee on Economic, Social and Cultural Rights has expressed its
deep concern that: "Far reaching racial discrimination, extreme
poverty and social exclusion in relation to the indigenous populations
negatively affect the enjoyment of economic, social and cultural rights
by these populations."
With respect to the access of indigenous children to education,
the UN Special Expert on Guatemala indicated that only 30 of 100
indigenous children attend primary school (as opposed to 73/100 for
nonindigenous children), and only 6 of 100 attend secondary school (as
opposed to 32/100 of nonindigenous).
to Guatemala's ratification of the Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women in
1995, at the close of 1996, the Congress approved the "Law to
Prevent, Sanction and Eradicate Intrafamilial Violence.
The law establishes a range of measures to protect victims of
violence carried out by a family member, including a spouse, former
spouse, or the person with whom the victim has a child, and between
persons who share or have shared a residence.
Those particularly vulnerable, women, children, the elderly and
the disabled, are to be accorded special protection based on the
circumstances of the case. The
law applies to any act or omission which directly or indirectly causes
harm, or physical, sexual, patrimonial or psychological suffering,
whether in the public or private spheres, and applies independently of
the provisions of the Criminal Code. A denunciation may be filed with a
relevant state institution, which must register and forward it to the
corresponding family or criminal court within 24 hours.
Pursuant to the comprehensive set of protective measures
established, a presumed aggressor may be ordered to leave a shared
residence; he or she may be ordered to refrain from keeping arms or arms
may be confiscated; parental custody or visitation rights may be
suspended; and other measures may be ordered to prevent the aggressor
from interfering with the victim. The
National Police are obliged to intervene in these cases de oficio,
or when so requested by a victim or third person.
The Commission values the adoption of this significant law which
recognizes the duties of the State under the Convention of Belém do Pará,
and which contitutes a substantial advance in the fight to combat this
devastating violence, and looks forward to reports of action to fully
implement its terms.
Commission further notes that, early in 1996, the Court of
Constitutionality ruled Articles 232 through 235 of the Criminal Code
(referring to adultery and concubinage) unconstitutional due to their
effect of discriminating against women.
The pleadings before the Court referred to the American
Convention and the Inter-American Convention on the Prevention,
Punishment and Eradication of Violence against Women in evaluating the
challenged provisions. This
ruling is very significant within the context of the effort being made
by various branches of the State to bring Guatemalan law into conformity
with constitutional and international legal obligations.
Commission continues to follow efforts to reform other legal provisions,
particularly the sections of the Guatemalan Civil Code concerning the
role and representation of spouses within the marital unit so that women
have the full capacity to exercise their rights and freedoms on the
basis of equality.
has seen remarkable changes in the human rights situation in Guatemala.
The paramount objective of attaining an end to the armed conflict
has been met. The different
sectors of Guatemalan society have opened a new political space, thereby
engendering opportunities for dialogue and collaboration in addressing
the challenge of implementing the agreements negotiated between the
Government and the URNG. It
is important to emphasize that the objective that all individuals may
fully and equally enjoy their rights and freedoms has been a priority in
the process of negotiation. The
actions of the Guatemalan State and society to end the armed conflict
and initiate peace provide a necessary precondition for advances in
human rights, and a foundation to work in favor of reform.
The Commission recognizes and values the advances that have been
attained. Of particular
importance in this regard is the initiation of transformations in
previously repressive structures, as exemplified by the dissolution of
the PACs. This is also
exemplified in the action of the Government to obtain compliance with
human rights, in particular, with regard to respect for the right to
life on the part of its agents.
prejudice to these developments, the Commission continues to be
seriously concerned because the situation in Guatemala does not yet
allow for the full enjoyment of human rights.
The long conflict which Guatemala suffered has left serious
sequelae in cultural and institutional areas which require a concerted
and permanent effort to overcome: 1) the activity of the police is not
fully controlled; the judiciary does not guarantee that there is justice
is all cases; 3) there is uncertainty with respect to the application of
the Law of Reconciliation; 4) in spite of the express text of the
American Convention, there is an extension of the death penalty by means
of legislative decrees 38-94, 14-95 y 81-96; and, 5) individuals have
taken justice in their own hands (lynchings) in contravention to the
basic principles of the rule of law.
The Commission will continue observing the progress made in
relation to the situation of human rights of Guatemala with great
IACHR encourages all parties in the peace negotiations to persevere in
their dedication to consolidating peace, to fully comply with the peace
agreements, and to advance in the implementation of the required
Commission recommends that priority attention be given to reforms within
the judicial system, including the provision of additional resources,
improved training and coordination, and the restructuring and
reinforcement needed to develop its capacity to promptly and thoroughly
investigate and respond to human rights violations and common crime.
Commission recommends that any instance of threats or intimidation
against judges, prosecutors and investigators be met with a swift
response, including effective protective measures whenever appropriate,
investigation, and the submission of those responsible to justice.
Commission recommends that the relevant authorities vigorously
investigate, prosecute and punish lynchings, attempted lynchings and
so-called acts of "social cleansing," which are unacceptable
within the inter-American human rights system.
Commission recommends that the measures that must be taken within the
domestic legal framework to attain the full equality of women be
Commission recommends that additional attention be dedicated to the
proliferation of arms and private security forces or groups, to assure
that adequate legislative, administrative and judicial measures are in
place to control the number and use of firearms, and to monitor and
control the actions of private security agents.
Commission recommends that the State amplify its efforts, in accordance
with the accord on the identity and rights of indigenous peoples, to
remedy the instances of de facto and de jure
discrimination so as to attain their full participation in national life
Commission urges the State to accord higher priority to the protection
of children, to meeting their basic needs for adequate nutrition, health
care and education, and to ensuring that children who must work do so
under conditions that accord priority to their education, and that
prohibit night work or other forms of employment that place their
health, safety or development at risk.
Misión de Observación Electoral de la Organización de los Estados
Americanos, Elecciones Generales en Guatemala, 12 de noviembre de
1995, 7 de enero de 1996: Informe Final, OEA/Ser.G/CP/INF.3947/96,
12 abril 1996.
Id., at 32-37.
"Los Derechos Humanos y el Proceso de Paz en Guatemala",
presentation by Jorge Mario García Laguardia, (Procurador de
Derechos Humanos: Colección Cuadernos de Derechos Humanos 6-96
(1996)), at pp. 22-25, 30-32.
See, e.g., Fourth Report on the Situation of Human
Rights in Guatemala, OEA/Ser.L/V/II.83, Doc. 16 rev., June 1,
1993, at 60-61.
Sixth report of the Director of the United Nations Mission for
the Verification of Human Rights and of Compliance with the
Commitments of the Comprehensive Agreement on Human Rights in
Guatemala [hereinafter Sixth Report], A/51/790, 31
January 1997, para. 40.
Fifth report of the Director of the United Nations Mission for
the Verification of Human Rights and of Compliance with the
Commitments of the Comprehensive Agreement on Human Rights in
Guatemala [hereafter Fifth Report], A/50/1006, 19 July
1996, para. 70, see also, para. 196.
See also, Sixth Report, paras. 80, 81
(referring to actions of some members of the armed forces, in
contravention to orders of the high command, to encourage the
formation of successor groups, and to interfere with the program of
See generally, Sixth Report, para. 17.
Fifth Report, para. 74.
See, e.g., Fifth Report, paras. 77, 129-31,
195; Oficina de Derechos Humanos del Arzobispado de Guatemala, Diagnóstico
de la Situación de Derechos Humanos en Guatemala: 1996 (noting
indirect role of military intelligence).
Sixth Report, para. 83.
Fifth Report, para. 77.
UNDP, Human Development Report 1996, 136 (1996).
Id. at 144.
Fifth Report, para. 55.
Fifth Report, at paras. 50, 52 and 192.
Id. at paras. 23 (noting such incidents in departments of
Guatemala, Chimaltenango, Escuintla, Sololá, El Quiché and Petén),
and 63 (noting concern at State's failure to investigate).
Id. at paras. 63, 73, 200 (referring to finding of abandoned
corpses consistent with this modus operandi, and lack of
See id. at paras. 72, 85, 196-97 (noting that the
public's lack of confidence in the security apparatus of the State
is resulting in the use of public forces to protect private
interests, as for example, the Mobile Military Police, and the
growth of private security forces that delegitimate public action).
With respect to each of the foregoing manifestations, see
generally, Sixth Report, paras. 136-138.
Órgano Informativo del GAM, "Vida y Libertad," boletín
noviembre-diciembre 1996, at 10.
It may be noted that the global human rights accord of 1994
stipulates that the Government shall not sponsor any measure
designed to prevent the prosecution and punishment of human rights
These cases are pending before the Inter-American Commission as
numbers 10.636 and 11.333, respectively.
See, Report Numbers 28/92 (Argentina), and 29/92 (Uruguay), Annual
Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, Doc. 14, corr.
1, March 12, 1993, pp. 35, 154.; Report on the Situation of Human
Rights in El Salvador, OEA/Ser.L/V/II.85, Doc. 28 rev., Feb. 11,
1994, at 75; and, Report Numbers 36/96 (Chile) and 34/96 (Chile), Annual
Report of the IACHR 1996.
See generally, "Areas in Which Steps Need
to be Taken Towards Full Observance of  Human Rights," Annual
Report of the IACHR 1985-86, OEA/Ser.L/V/II.68 doc. 8 rev. 1, 26
Sept. 1986, at 193.
Sixth Report, para. 19.
Fifth Report, paras. 21-29; appendix.
Sixth Report, appendix.
The instances verified included complaints admitted during
the reporting period, as well as some that had been admitted
See, Fifth Report, at paras. 25, 28.
Advisory Opinion OC-3/83 of September 8, 1983, "Restrictions to
the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human
Rights), Ser. A No. 3, paras. 56, 59.
Fifth Report, para. 41.
Concluding observations of the Committee on Economic, Social and
Cultural Rights [on the initial report of Guatemala
(E/1990/5/Add.24)], E/C.12/1Add.3, 28 May 1996, para. 18.
Id., at para. 17.
Sixth Report, para. 11, see also, para. 90.
UN Committee on the Rights of the Child, Consideration of the
initial report of Guatemala, CRC/C/SR.308, 5 July 1996, para. 3.
Concluding observations of the Committee on the Rights of the
Child: Guatemala, CRC/C/Add. 58, 7 June 1996, para. 21.
UN Committee on Economic, Social and Cultural Rights, Consideration
of the Initial Report of Guatemala, E/C.12/1996/Sr.14, 15 May
1996, para. 57.
Report of the Independent Expert, Mrs. Mónica Pinto, on the
situation of human rights in Guatemala, E/CN.4/1996/15, 5
December 1995, para. 112, citing, UNICEF, Guatemala, análisis
de situación (1995).
UN Committee on Economic, Social and Cultural Rights, Consideration
of initial report of Guatemala (continued), E/C.12/1996/SR.13,
28 May 1996, at para. 33.
See, Statistics of the Office of Legal Aid of Casa Alianza in
Guatemala, for the period 1990 - 1996 (presented per year).
Concluding Observations of the Human Rights Committee [on the
initial report of Guatemala], CCPR/C/79/Add.63, 3 April 1996, at
Concluding observations, supra, para. 15.
Report of the independent expert, supra, para. 95.