No. 8/03









          1.          On December 29, 1996, the Agreement for a Firm and Lasting Peace was signed in Guatemala.  This agreement expresses the will of millions of Guatemalans, who, after 36 years of war and more than 15,000 deaths and thousands of disappeared, embarked upon a necessary and difficult path to overcome grave and massive human rights violations as well as the weakness of democratic institutions, and to move towards the construction of a genuine democracy, under the rule of law, so as to ensure the participation and integration of all sectors of society.


          2.          The peace agreements marked the beginning of a process which has undeniably resulted in significant progress in terms of social peace and in creating political space and fora for dialogue.  As of 1996, and pursuant to different objectives of the peace agreements, new laws have been adopted and various institutions established, with the active involvement of civil society.


          3.          During these years, there have also been many reasons for lamenting the delays and the failures to take the steps needed for building a state under the rule of law, and attaining the objectives of the peace accords.


          4.          The Inter-American Commission on Human Rights has paid special attention to the evolution of the process of implementing the peace agreements, acknowledging advances, and noting shortcomings.  In recent times, the Commission has noted alarming indicia suggesting the possibility of backsliding in the progress made towards consolidating the rule of law. Accordingly, for this visit, the Commission focused on collecting information on aspects fundamental to the effective rule of law.  In particular, the Commission was concerned to look into the administration of justice, impunity, citizen security, the threats to judicial officers and human rights defenders, the situation of the indigenous peoples, children, and women, and the freedom of expression.


          5.          The judiciary is the main instrument for upholding the rule of law and for settling the disputes that arise on a day-to-day basis in society.  A society without a properly structured and efficient judiciary that settles disputes among individuals and between individuals and the state will be inclined to violence, corruption, and stagnation.  In Guatemala, the attacks on and threats to judicial officers, the existence of unlawful pressures and influences on judges, the insufficiency of resources, the lack of serious and timely investigations by the Public Ministry, in particular in cases of special importance, and the difficult situation affecting the Public Defenders Office (Defensoría Pública) are factors that contribute, among other things, to the widespread impunity that seriously affects the rule of law.


          6.          During its stay in Guatemala, the Commission received valuable testimony on matters related to citizen security.  The meddling of the Armed Forces in spheres outside the scope of their authority as set forth in the peace accords, and abuse and corruption in the National Civilian Police, are among the factors hindering the development of an efficient security force to prevent and fight crime.


          7.          The Commission also learned of illegal entities and clandestine security apparatuses that engage in drug-trafficking, kidnapping, contraband, and attacks on and threats to human rights defenders and judicial officers.  During the visit, both the authorities and civil society acknowledged the existence of such parallel bodies, which pose a threat to the continuity of the rule of law.  The Commission values the initiative of the Human Rights Ombudsman, civil society, and the government to create the Commission for the Investigation of Illegal Bodies and Clandestine Security Apparatuses (CICIACS).  The IACHR urges the Guatemalan State to scrupulously carry out the terms of the agreement signed March 13, 2003, and calls on the international community to cooperate with this important institution.


          8.          The information received during the visit shows a significant increase in the intimidation of human rights defenders and judicial officers, including illegal searches of the offices of human rights organizations, the theft of equipment and information, death threats, attacks on physical integrity, being followed, kidnappings, and even assassinations. Judicial officers and human rights defenders play an irreplaceable role in the reconstruction of a solid and lasting democratic society.   When judicial officers and human rights defenders are silenced by assassination, intimidation, or fear, those persons they assist are prejudiced, as is society as a whole.


          9.          Guatemala is a multiethnic, multilingual, and multicultural society in which the Maya, Garifuna, and Xinca peoples, who account for more than half the population and 83% of the victims of the armed conflict, have historically suffered discrimination, and account for a large share of the population living in poverty or extreme poverty.  The Government recognized that the peace agreements on the social inclusion of the indigenous peoples have been implemented to a lesser extent than the others, with the consequent detrimental effect on Guatemalan democracy, which will not consolidate until the systematic discrimination against indigenous peoples is ended.


          10.          The end of the internal conflict and the new agenda established in the Peace Accords have made it possible for women to play a leading role in attaining major advances in the legal framework and public policies for overcoming the discrimination that hinders women’s full participation in decision-making.  Nonetheless, these strides have not been followed by other structural changes essential for remedying discrimination against women.  It is especially worrisome that the State has not taken the steps needed to repeal certain legal provisions that discriminate on the basis of gender.  In addition, and despite certain legislative advances, anachronistic legal provisions subsist that perpetuate forms of subordination. Moreover, there is a marked contrast between the legal gains and the insufficiency of real change in practice. In addition, although the State has assumed major international commitments in relation to women’s rights, few judicial officers are familiar with or apply the relevant instruments.


          11.          The Commission expresses its profound concern in relation to the situation of Guatemalan children. The IACHR found that the domestic legislation has yet to be brought into line with the Convention on the Rights of the Child, to which the Guatemalan State is a party.  In addition, it received information on the continued violations of the rights to life and physical integrity of children, and the failure to investigate, prosecute, and punish those responsible for such violations, and the lack of services and programs to address the basic needs of children at risk.  The Commission expresses special concern in relation to the reports of so-called “social cleansing” killings and the violence and insecurity to which street children and youths are exposed.


          12.          The Commission also notes with concern the increase in threats and acts of harassment directed against journalists, particularly those who cover investigations into acts of corruption and human rights violations.  Accordingly, it is necessary for journalists to protect their sources of information and the free exercise of the right of access to information.  At the same time, the Commission expresses its concern over the lack of regulations on concessions for television and radio broadcasting that take into account democratic criteria that guarantee equal opportunity in access to such concessions, particularly in relation to the inclusion of the indigenous peoples, peasants, women, and youths.


          13.          On concluding this visit, the IACHR cannot hide its serious concern over the lack of progress in matters vital to the preservation and strengthening of the rule of law.  To the contrary, since its previous visit in 1998, the Commission has found a significant deterioration in several respects.  The rule of law and democracy in Guatemala will not become consolidated if the judiciary continues to be inefficient for addressing the very serious human rights violations of the past, as well as the violations of the present and the impunity that continues to prevail in the justice system; if armed groups act with impunity outside the law; if human rights defenders, judicial officers, journalists, trade unionists, and other representatives of social sectors are targets of assassinations, threats, and intimidation; if the indigenous peoples, women, and children suffer different forms of discrimination and social marginalization; and if the Armed Forces and intelligence agencies continue to participate in activities related to citizen security and are not subordinated to the civilian authorities.


          14.          The Commission considers that the factors mentioned above, in particular impunity, corruption, organized crime, and the social exclusion of various sectors, pose a serious danger of backsliding in the effective observance of the rule of law, and limit the full enjoyment of the human rights that the American Convention recognizes for all persons.


          15.          The Commission wishes to reiterate its support for the peace process that put an end to 36 years of internal armed confrontation. The development of a culture of tolerance, respect for the law, and rejection of impunity requires an effort on the part of all Guatemalans; this is an undertaking in which they have been and will be joined, in solidarity, by the international community. The Commission is aware of the difficulties of that task, and of what remains to be accomplished.  The IACHR understands the frustration of various sectors of Guatemalan society due to the scant progress in the process.  The IACHR emphasizes that those difficulties should not lead to discouragement. To the contrary, existing spaces for cooperation and participation should be preserved and strengthened.


          16.          The IACHR highlights once again the importance of the peace accords as instruments for advancing in the task of building a country that is more democratic, just, tolerant, and respectful of human rights. The Commission issues an appeal to the State and to civil society to redouble their efforts for the full implementation of these agreements.


          17.          The IACHR will continue to closely observe the development of the human rights situation in Guatemala.  The visit culminating today was a valuable opportunity to attain this purpose, and to further the dialogue which, within the scope of its competence, the Commission maintains with the authorities and with Guatemalan society.  The IACHR reiterates its offer to collaborate with the Government of Guatemala, and with Guatemalan society as a whole, to contribute to strengthening the defense and protection of human rights in a democratic context.  Furthermore, the Commission expresses its gratitude to the government and civil society institutions that made this a productive visit.


          18.          The delegation of the IACHR[1] for this visit was made up of its First Vice-President José Zalaquett (Chile); Second Vice-President Clare Roberts (Antigua and Barbuda); Susana Villarán (Peru); Juan E. Méndez (Argentina); Julio Prado Vallejo (Ecuador); and Santiago A. Canton, Executive Secretary.  The Special Rapporteur for Freedom of Expression, Eduardo Bertoni, accompanied the delegation.


          I.          INTRODUCTION


          19.          Today, the Commission concluded its on-site visit to the Republic of Guatemala.  The visit – made upon the invitation of the Government of President Alfonso Portillo – took place from Monday, March 24, to Saturday, March 29, 2003, and was carried out for the purpose of observing Guatemala’s human rights situation.


          20.          The IACHR is a principal organ of the Organization of American States (OAS), whose mandate is to promote and protect the observance of human rights in the Hemisphere; its powers derive from the American Convention on Human Rights and the Charter of the OAS, both of which instruments have been ratified by the Republic of Guatemala. The Commission is made up of seven members elected in their personal capacity by the OAS General Assembly.  The delegation of the IACHR[2] for this visit was made up of its First Vice-President José Zalaquett (Chile); Second Vice-President Clare Roberts (Antigua and Barbuda); Susana Villarán (Peru); Juan E. Méndez (Argentina); Julio Prado Vallejo (Ecuador); and Santiago A. Canton, Executive Secretary.  The Special Rapporteur for Freedom of Expression, Eduardo Bertoni, accompanied the delegation. The delegation also included specialists María Claudia Pulido, Elizabeth Abi-Mershed, Isabel Madariaga, Andrea Galindo, and Tamara Taraciuk.  The delegation received administrative support from Gloria Hansen, Martha Keller, and Laura Ferrer.


          21.          The IACHR wishes to note that it was fully free to meet with the persons of its choosing, and to travel to any part of the territory as it might deem advisable. The authorities of the Guatemalan State provided the Commission with the fullest assistance and cooperation to enable it to carry out its program. The Commission expresses its gratitude to the Government of President Portillo and in particular the Presidential Commission for Human Rights (COPREDEH) for these facilities.  It also thanks various organizations and representatives of civil society for their collaboration and for the information they provided.


          22.          During its visit, the IACHR met with authorities from the different branches of government, including the Vice-President of the Republic, at the time in his capacity as acting President, the Minister of Interior, the Minister of Defense, members of the Security Cabinet, the Social Welfare Secretariat, the Peace Secretariat, the Secretary of Communication, the Secretary of the Indigenous Fund, the Director of the National Civilian Police, members of the Presidential Commission against Discrimination and Racism, the Office of the Ombudswoman for Indigenous Women, and the President of COPREDEH.  In addition, the Commission held meetings with members of the Supreme Court of Justice and with a judge from the Constitutional Court.  Furthermore, meetings were held with the Attorney General, and members of special prosecutorial units, as well as the Public Defender (Defensor del Pueblo), members of his office (the Defensoría Pública), and the President of Congress and members of the committee on human rights, and the committee on women, children, and family.  Moreover, meetings were held with non-governmental human rights organizations, representatives of indigenous rights organizations, children’s rights organizations, women’s rights organizations, representatives of the churches, representatives of peasant organizations, organizations devoted to strengthening the administration of justice, journalists, trade unionists, and representatives of the business sector. In addition, the IACHR received testimony from victims of human rights violations. The IACHR also contacted international organizations, including MINUGUA and UNICEF.


          23.          The Commission also received information and testimony on the situation in all regions of the country. In particular, a delegation of the IACHR traveled to Nevaj, department of Quiché, where it met with the governor, the mayor, the civil judge, the Public Defender, personnel from the justice of the peace, members of legal aid offices, and the chief of police, and with members of local organizations and the Church. The Commission was also able to look into the situation in the community of Los Cimientos and the situation of violence suffered by youths in Villanueva, Guatemala City.


          24.          In the context of the collaboration with the Government, and with a view to contributing to the effort to bring about more and better protection of fundamental rights in Guatemala, the Commission, exercising its functions and powers pursuant to Article 41 of the American Convention on Human Rights, publicly makes known its preliminary observations on the impressions garnered before and during this visit.  The final conclusions and recommendations will be set forth in a report on the human rights situation in Guatemala, which will be put to the consideration of the Guatemalan State and made public soon thereafter.


          25.          During its visit, the Commission paid special attention to the following issues: the administration of justice; the effort to end impunity; citizen security and the threat represented by the illegal bodies and clandestine security apparatuses; the situation of human rights defenders; discrimination against and social exclusion of indigenous peoples, women, and children;  and the freedom of expression.  The Commission considers that these issues are of fundamental importance for achieving the effective observance of the rule of law in a democratic society.


          26.          At the same time, democracy and the rule of law are necessary conditions for achieving the observance of and respect for human rights. According to the Inter-American Democratic Charter, the essential elements of representative democracy include respect for human rights and fundamental freedoms; access to power and its exercise subject to the rule of law; and the separation of powers and independence of the various branches of government.




          27.          The IACHR wishes to reiterate the importance of the existence of an efficient, independent, and autonomous administration of justice for enhancing democracy and the rule of law.  A judiciary with those characteristics places limits on the abuses of authority and is a guarantee of legality and protection of the rights of all persons.


          28.          During its visit, the IACHR received information on the situation of the Guatemalan judiciary, including the efforts and gains made with a view to training the judges, appointing new justices of the peace, and creating community courts. In addition, the IACHR received information on the shortcomings that continue to beset the judicial branch.  Among the most serious problems that affect the administration of justice are insufficient resources, pressures of various sorts on judges and judicial officers, and the lack of an adequate judicial career service and the instability this entails.  Moreover, the stepped-up attacks and assassination attempts against the lives and physical integrity of judges and prosecutors and all other judicial officers are of special concern to the Commission and are analyzed below in this press release.


          29.          The Commission received information that indicates that the budget allocated to the justice institutions is still insufficient. For example, the Attorney General informed the Commission that his institution’s resources are precarious, and that, as a result, the Public Ministry has a presence in only 10% of Guatemalan territory, and that it has one prosecutor for every 75,000 inhabitants, which means that each handles 1,546 cases on average.  Similarly, the National Commission for Monitoring and Support for the Strengthening of Justice reported that the Institute for Criminal Public Defense is experiencing serious difficulties continuing several of its vital programs, such as the public defender program, its presence at the Centers for the Administration of Justice, public defenders’ offices at police stations, and special defenders for distinct ethnic groups.


          30.          In addition, the Commission received information on the current performance of several special prosecutorial offices. The Commission considers that success in the struggle against impunity depends largely on the effectiveness of the investigative mechanisms and consequently values the creation of special prosecutorial offices when necessary. Nonetheless, the information received by the Commission indicates that there have been few advances in numerous criminal investigations, particularly those related to judicial officers and journalists. The Commission is especially interested in the investigation into the threats and attacks on human rights defenders, and urges the Attorney General to endow the Office of the Special Prosecutor on Human Rights the resources needed to perform its duties.


          31.          The National Commission for Monitoring and Support for Strengthening the Justice System, the U.N. Special Rapporteur on the independence of judges and lawyers, and this same Commission have on several occasions expressed the importance of endowing the Guatemalan justice system with an adequate budget. This is a necessary condition for guaranteeing all the inhabitants of Guatemala equitable access to justice and to fighting impunity.


          III.          IMPUNITY


          32.          The effective observance of the rule of law is accomplished in large measure by ensuring an administration of justice that does not tolerate impunity.  The entire society should perceive that the judiciary enforces the law equally and guarantees that all inhabitants effectively enjoy their rights. The Inter-American Commission has argued that “[i]mpunity is one of the serious problems in the administration of justice in the hemisphere,” and one of the obstacles to the definitive strengthening of the rule of law in several states of the region.


          33.          The persistence of high levels of impunity means not only that numerous grave crimes go unpunished; it also becomes a situation that affects the very life of the nation and its culture. In addition, the international responsibility of the state is triggered when it does not fulfill its obligation to undertake a serious, impartial, and effective investigation into the facts and punish the persons responsible, even in the case of crimes not committed by state agents. Such an omission gives rise to the additional obligation to make reparation to the victims or their family members for the violation of their right to have the state undertake a proper investigation into the facts.


          34.          During its on-site visit, the Commission learned of various factors that contribute to the situation of impunity.  These include grave failings in the actions of the Public Ministry, the judiciary, and in particular the National Civilian Police; irregularities in the collection and production of the evidence; the undue influence of the Armed Forces in matters outside the scope of their specific functions; the refusal of the security agencies to provide the judges with relevant information; the protection and cover-up, by some authorities, in investigations related to organized crime; the lack of will, negligence, or incapacity of several judges to prevent the use of procedural remedies to obstruct justice; the absence of a criminal policy aimed at combating citizen insecurity; threats against and intimidation of judicial officers, human rights defenders, and other social leaders; and the budgetary limitations affecting the system for the administration of justice.


          35.          With respect to the prosecution and punishment of the persons responsible for human rights violations of the past, the Commission observes with profound concern that the grave impunity in the violations committed during the armed conflict remains intact. In effect, through the case system, the general hearings granted by the IACHR, and in the course of this visit, the Commission has received information according to which the judicial authorities have to this day refrained from prosecuting and punishing the perpetrators responsible for almost all the human rights violations committed during the armed conflict.


          IV.          CITIZEN SECURITY




          36.          During its stay in Guatemala, the Commission received valuable testimony on citizen security, and the violence and crime that have a serious detrimental impact on the rule of law.  Based on the information provided by the State, the PNC has been strengthened, within the possibilities of the State and with the collaboration of the international community. The Government indicated that with the approval of the budget for 2003, the Police was reinforced finally and technically to meet the demands for protection. Nonetheless, the Commission learned that the budget for the Academy of the PNC has been reduced, and accordingly urges the State to provide the Academy with the resources and support it needs to ensure the continuity of its specialized training and education of police agents.


          37.          One area of concern of the Commission in relation to citizen security is the participation of the Armed Forces in activities that should correspond exclusively to the PNC. In a democracy, it is fundamental that there be a clear and precise separation between internal security as a function of the Police and national defense as an action of the Armed Forces.  The Commission has received information on the participation of the Armed Forces in matters concerning citizen security and in other areas of the Government. For example, the Armed Forces continue participating in the investigation of crimes – in particular in cases related to drug-trafficking and organized crime – immigration control, and civilian intelligence tasks.


          38.          Influence over citizen security is just one aspect of the broad power that the Armed Forces exercise over the Government and Guatemalan society.  It is necessary to look in greater depth at the process of demilitarization begun with the signing of the Peace Accords, mainly strengthening civilian control of both the executive and legislative branches, over the activities of the Armed Forces.




          39.          The IACHR is profoundly concerned about the persistence of lynchings, which have been documented since 1996. According to MINUGUA figures, from 1996 to 2002, a total of 482 lynchings were recorded, affecting 943 victims, 240 of whom were killed.  Even though the PNC and Office of the Human Rights Ombudsman (Procuraduría de Derechos Humanos) have intervened successfully in certain cases to keep the victims from being killed, the state response to date has been marred by serious shortcomings.  In many cases the authorities do not take preventive measures nor do they respond effectively to the acts of violence. The vast majority of lynching cases remain in impunity.  The lack of an effective response by the administration of justice sends the perverse message that “people’s justice” is an acceptable alternative to the rule of law and due process.




          40.          The Commission received information from the authorities and civil society as to the existence of “illegal bodies and clandestine security apparatuses” that have stepped up their criminal activities in recent years.  These groups have been associated with drug-trafficking, kidnapping, contraband, theft on a large scale, and in particular with attacks on and threats to human rights defenders, judicial officers, witnesses, journalists, trade unionists, and other social sectors.


          41.          The Commission looks favorably on the initiative to create the Commission to Investigate the Illegal Bodies and Clandestine Security Apparatuses (CICIACS), which will investigate the activities of such structures and urges the Government to provide it with the elements to carry out its mandate of undertaking an effective investigation. In addition, the Commission urges the authorities to collaborate with the CICIACS and to abide strictly by the terms of the political agreement of March 13, 2003.


          42.          The Commission will continue observing the evolution of the CICIACS and offering to share with Guatemalan authorities and civil society its experience and knowledge, to collaborate in the success of its mission. The Commission trusts that the UN and the OAS will provide their full cooperation to ensure the sound operation of the CICIACS.




          43.          The civil society organizations told the Commission of their concern over the reactivation of the Civil Defense Patrols (Patrullas de Autodefensa Civil, or PACs) in activities that may be designed to intimidate the population. In this regard, the Commission would like to recall that the origins, objectives, and operation of the PACs have been analyzed in both in its own reports and in decisions of the Inter-American Court; in addition, they were involved in numerous extrajudicial executions during the armed conflict, and specific recommendations were made in this regard.  The Inter-American Court has stated in this regard that


... the civil patrols enjoyed an institutional relationship with the Army, performed activities in support of the armed forces’ functions, and, moreover, received resources, weapons, training and direct orders from the Guatemalan Army and operated under its supervision. A number of human rights violations, including summary and extrajudicial executions and forced disappearances of persons, have been attributed to those patrols.


          44.          In addition, the Commission would like to recall that in Report 59/01, it recommended that the Guatemalan State “effectively prevent a resurgence and reorganization of the Civil Patrols.”






          45.          The Commission notes that human rights defenders play a key role in the pursuit of the full attainment of the rule of law.  Their initiatives, by protecting individuals and groups of persons who are victims of human rights violations, by publicly denouncing the injustices that affect large sectors of society, and by engaging in the necessary monitoring of public officials and democratic institutions, among other activities, gives them an irreplaceable role in building a solid and lasting democratic society.  When judicial officers and human rights defenders are silenced by assassination, intimidation, or fear, also prejudiced are those persons whose rights they work to protect, and society as a whole.


          46.          In addition, the Commission recalls resolutions 1818 and 1842 of the OAS General Assembly, which expressly condemn acts that directly or indirectly impede or hinder the tasks of human rights defenders in the Americas, and urge the member states to step up their efforts to adopt the measures needed to guarantee their lives, personal integrity, and freedom of expression, in keeping with each state’s domestic legislation and internationally recognized principles and standards.


          47.          In July 2002, the IACHR’s Rapporteur for Guatemala, together with the Human Rights Defenders Unit of the Executive Secretariat of the IACHR, visited the country. On that occasion, the delegation received reports indicating a growing climate of attacks, harassment, and persecution of human rights defenders in Guatemala. During this visit, the IACHR found a significant increase in attacks which, directly or indirectly, impede or hinder the tasks performed by human rights defenders.


          48.          In 2002 and the first months of 2003, the Commission received abundant information that evidences a pattern of intimidation towards human rights defenders.  In addition, during this visit, the Commission received information on more than 160 attacks and acts of intimidation against defenders, witnesses, and social leaders, from January 2002 through March 2003.  Those attacks include unlawful searches of human rights organizations, theft of equipment and information, death threats made by phone and in writing, attacks on physical integrity, being followed, kidnappings, and, in some cases, assassinations.


          49.          Of late, the Commission requested the Guatemalan State to grant precautionary measures on behalf of human rights defenders who have been threatened, intimidated, or targeted by acts of violence.  On this occasion, the Commission would like to reiterate the importance of the Guatemalan State performing in their entirety the precautionary measures of the Commission.




          50.          The Commission was extremely concerned upon receiving information according to which there has been a significant increase in threats, harassment, and other acts of intimidation against judicial officers.  The President of the Supreme Court informed the Commission that in the first three months of this year, 39 judges were threatened, two suffered attacks, and one was assassinated.  This represents a significant increase with respect to the figure from 2002, when 74 were threatened in one year.


          51.          In recent months, the Commission requested precautionary measures from the Guatemalan State to provide security for persons who are threatened or otherwise attacked for reasons related to judicial proceedings.  Nonetheless, the Commission received information that indicates that security is insufficient, and that investigations are almost non-existent.  In the case of judicial officers, the Supreme Court of Justice created a Judicial Security Office (Dependencia de Seguridad Judicial), entrusted with studying security problems and making recommendations.


          52.          The Commission was informed that on February 7, 2001, the Office of the Special Prosecutor for Crimes Committed against Judicial Officers was established; it was assigned 114 cases in 2001, and 47 in the first half of 2002.  The Commission encourages the work done by the Public Ministry to protect judicial officers; nonetheless, it has received information according to which there has been no significant progress in the investigations carried out by the above-mentioned Office of the Special Prosecutor.




          53.          The Inter-American Democratic Charter recalls that eliminating all forms of discrimination, especially discrimination based on gender, ethnicity, or race, and the various forms of intolerance, and promoting and protecting the human rights of individual peoples, and respect for ethnic, cultural, and religious diversity, contribute to the strengthening of democracy and citizen participation.


          54.          The Commission observes that there is social exclusion in Guatemala, particularly of the indigenous peoples, women, and children. The social exclusion that the Commission finds in Guatemala includes the lack of access to justice, as well as the effective exercise of human rights, including the civil, political, economic, social, and cultural rights of these sectors of society.  Accordingly, the implementation of strategies for social inclusion indissolubly tied to the promotion, protection, and respect for the human rights of these sectors should be a priority for the Guatemalan State and society.  The rule of law in Guatemala can only be consolidated when these historically marginalized sectors achieve more equal participation in society and in the decisions that affect them.




          55.          Guatemala is a multiethnic, multilingual, and multicultural society, in which the Maya, Garifuna, and Xinca peoples account for more than half of the population. According to the Commission for Historical Clarification, the indigenous peoples accounted for 83% of the victims in the armed conflict. The IACHR, in its Fifth Report on the Situation of Human Rights in Guatemala of 2001, said that the indigenous peoples historically have suffered discrimination, constitute a large part of the poor population or those living in extreme poverty, and are the majority in the departments with the highest indices of social exclusion.  Two years later, the Commission finds that the situation has not changed.


          56.          The Peace Accords represented a historical opportunity to overcome such scourges, especially the Agreement on Identity and Rights of Indigenous Peoples. Nonetheless, eight years after their signing, the IACHR finds that this is the agreement that has been least implemented, as acknowledged by the President of the Republic on March 24, 2003, in the context of the presentation by the Presidential Commission against Discrimination and Racism against the Indigenous Peoples of Guatemala.


          57.          The Commission values the efforts of the Guatemalan State aimed at recognizing and guaranteeing the rights of indigenous peoples in areas such as justice, education, and cultural rights. Nonetheless, these efforts have not been sufficient.  The IACHR has been able to verify, in the course of this visit, that ensuring access to justice is a task still pending. In addition, the degrees of chronic malnutrition in indigenous children, the lack of medical care, the need for a culturally relevant education, and the discrimination suffered especially by indigenous women, are examples of the social exclusion to which the indigenous peoples of Guatemala continue to be subjected.


          58.          The Commission values the State’s initiatives to adopt a law on discrimination and to create the Presidential Commission against Discrimination and Racism against the Indigenous Peoples of Guatemala. It is to be expected that this Presidential Commission, which originated in a proposal by indigenous organizations and is made up of five indigenous leaders, can design public policies that guarantee the eradication of discrimination and racism against indigenous peoples.


          59.          One fundamental means of communication for the indigenous peoples is community radio. The Special Rapporteur for Freedom of Expression of the IACHR recommended that the State suspend the auctioning of radio frequencies so that those still available can be handed over to the indigenous communities, to comply with the Peace Accords. Nonetheless, according to information the Commission has received, the State has resumed the auctions, without reserving the frequencies needed for the community radio stations.  The IACHR calls on the State to regulate the access of indigenous peoples to radio frequencies, pursuant to the Peace Accords.


          60.          Among the obstacles the Commission notes to guaranteeing the eradication of discrimination and racism are the failure to effectively implement the international instruments that Guatemala has ratified, such as International Labor Organization Convention 169 on Indigenous and Tribal Peoples in Independent Countries, and the International Convention on the Elimination of All Forms of Racial Discrimination, of the United Nations.




          61.          Based on the recognition that many interrelated forms of discrimination hindered the full participation of women in decision-making and national development, the Peace Accords established a series of fundamental commitments with respect to women’s rights. Based on these commitments, some important initiatives were taken, such as the Law on the Dignifying and Comprehensive Promotion of Women, the Law against Family Violence, the Law on Social Development, the National Policy for Women’s Promotion and Development, and the Equal Opportunities Plan.  In addition, offices were created such as the Office of the Ombudsperson for Indigenous Women (Defensoría de la Mujer Indígena), the Women’s Forum (Foro de la Mujer), the Presidential Secretariat on Women, and the National Coordinating Body to Prevent Family Violence and Violence against Women (CONAPREVI).  Women played a leading role in gains, which established a new agenda aimed at overcoming the discrimination against women that has existed historically.


          62.          During its on-site visit, however, the Commission received consistent reports to the effect that these valuable gains have not been followed by other changes that are essential for remedying the systematic discrimination that continues to stand in the way of women exercising their rights freely and fully.  In this connection, it is a matter of special concern that the State has not taken the steps needed to derogate legal provisions that discriminate on grounds of gender.  For example, during the visit, several sources emphasized the fact that many provisions of the Criminal Code that limit the protection afforded by the law to “honorable” (“honestas”) women, or that allow criminal liability for certain types of sex crimes to extinguish when the perpetrator marries the victim, are still on the books.  Moreover, several organizations emphasized the need to establish legal sanctions for sexual harassment.  The Commission also received information on the need to derogate certain provisions of the Civil Code, including, for example, the provision that allows women to excuse themselves from exercising certain types of guardianship simply for being women, and also certain discriminatory provisions of the Labor Code.


          63.          It is clear that when the law itself enshrines unjustified distinctions based on gender, far from guaranteeing the principle of equality, it becomes a factor of subordination. It is urgent that the State adopt the necessary measures to identify and do away with such unjustified distinctions.


          64.          Despite certain legislative advances, anachronistic legal provisions subsist that perpetuate forms of discrimination. There is a marked contrast between the positive commitments assumed by the State and the scant measures that it has adopted to implement them.  For example, although the State acknowledges that women’s representation in high-level positions in the public administration continues to be very rare, no effective measures have been taken to foster women’s participation in political life on an equal footing with men. Nor have decisive measures been taken to solve the high rates of illiteracy and maternal mortality.  Moreover, during this visit the Commission received abundant information that indicates that state entities with authority over the issues of gender-based discrimination and violence do not have even the minimum budget they would need to accomplish their goals, and that there is a lack of coordination among them to ensure the cross-cutting incorporation of the gender perspective into public policies.


          65.          The Commission received encouraging information on the creation of the Equity and Gender Office of the National Civilian Police (PNC) so as to incorporate and foster, within the PNC, a gender perspective internally and in the delivery of services. It is essential that the State take steps to incorporate a gender perspective in the work of all the public institutions.  As acknowledged in the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará), violence against women is an expression of discrimination based on the historically unequal power relationships between women and men. When it ratified that Convention, the Guatemalan State undertook to apply due diligence in preventing and responding to such violence.  In particular, the State is under an obligation to investigate, prosecute, and punish violence, independent of whether it occurs at home or at the hands of state agents. In this respect, the creation of the Coordinating Body to Prevent, Punish, and Eradicate Family Violence and Violence against Women (CONAPREVI) is a valuable step. The information received most recently indicates, however, that this progress has not been followed by decisive steps to put an end to this problem.  As regards the important international commitments adopted by the State in relation to women’s rights, the Commission wishes to note its concern over the fact that many judicial officers are not familiar with the relevant instruments or how to apply them properly.


          66.          In relation to the question of gender-based violence and discrimination, the Commission wishes to express its special concern over the de facto and de jure obstacles women face when they seek judicial protection for their rights.  For example, the Commission received information that indicates that a woman who wishes to report family violence faces the so-called “pendulum effect,” in that each time she goes to an authority, she is sent to another, with no timely or effective results.  Moreover, poor women have limited access to justice due to the lack of legal counsel free of charge.


          67.          In this area, the priority challenge facing Guatemala is to eliminate the profound gap between the commitments formally assumed by the State and the discrimination that many Guatemalan women face.




          68.          The values of a society are profoundly reflected in how it treats its children.  In the regional human rights system, special priority and protection have been accorded to children’s rights, because the youth of our hemisphere represent our collective possibility of creating “a system of personal liberty and social justice based on respect for the essential rights of man.”


          69.          According to its obligations under the American Convention, and under the Convention on the Rights of the Child, the Guatemalan State has undertaken to take the legislative and practical steps needed to ensure protection for the rights of Guatemalan children.  In this regard, the Commission expresses its profound concern for the failure to put in place an adequate legal and regulatory framework to protect those rights.  Although it is clear that the 1979 Code of Minors does not reflect the State’s commitments under international law, nor under the Constitution, the necessary measures to move towards full protection of children’s rights have not been taken.  The absence of the legal protections required gravely endangers Guatemalan children.  The Commission urges the State, and especially the Congress, to adopt the measures needed to comply with its duties immediately.


          70.          Furthermore, the deficiencies in the administration of justice indicated above in this press release imply that children are vulnerable to abuse, which is not met by the necessary investigation, prosecution, and punishment.  In this regard, the situation of street children and youth is emblematic.  Since some years ago, the Commission has paid special attention to this high-risk sector.  Precisely due to the lack of adequate prevention measures and an adequate response vis-a-vis the violations they suffer, the Commission referred the “Street Children” case to the Inter-American Court of Human Rights, which ordered, among other measures, that the State take the actions needed to adapt the legal framework so as to carry out its obligations.


          71.          During this visit, the Commission received updated information concerning grave violations of the rights to life and physical integrity of children, and on the lack of services and programs for covering their basic needs. According to the information received, there are some 8,000 street children in Guatemala, approximately 3,500 of them in Guatemala City.  During the visit, many organizations emphasized the grave violations that many of these children and adolescents suffer, particularly harassment and persecution at the hands of the security forces. They also reported an increase in the number of assassinations of and attacks on children and adolescents since December 2002. In particular, the Commission received information according to which 37 youths were assassinated in January 2003.  Those sources also were of the view that in certain cases, the characteristics of these assassinations, which include signs of torture or gunshot wounds at point-blank range, are consistent with so-called “social cleansing.”  The information received indicates that almost all cases of violence against street children or other children in high-risk situations remain in impunity.


          72.          The Commission also received information on the situation of the economic, social, and cultural rights of Guatemalan children, and especially on the impact of poverty on the development of the country’s human capital.  According to data from the United Nations Development Program, approximately 64% of children live in poverty, and within this group, most are indigenous.  Inequality and social exclusion have had repercussions on education and its results, especially in relation to access to primary education, food insecurity, and high rates of malnutrition, as well as the high rate of child labor.


          73.          The Peace Accords place emphasis on the key role of education in building a multicultural, democratic, and participatory society.  The Commission learned of positive initiatives on behalf of educational reform and bilingual education, but also received information that indicates that many children still lack access to the first three years of education. Furthermore, several organizations spoke of the need to incorporate the children’s participation in the design of the programs and policies that affect them.  The Commission received information on a mechanism for the participation of children at the municipal level that includes UNICEF, civil society, and state representatives.  The Commission encourages the search for mechanisms to expand the participation of children.


          74.          Child adoption in Guatemala is an issue of special concern for the Commission, due to the fact that the country has one of the highest numbers of children involved in international adoptions, and does not have an adequate legal framework.   According to the information received during this visit, last year there were more than 2,000 adoptions, almost all of them international.  Nonetheless, the respective processing does not require judicial approval, and there is no state control over the origin of the child, the free and informed consent of the biological parents, or the suitability of the adoptive parents.


          75.          Given that lack of state control and the high price paid by the adoptive parents in international adoptions, adoption, instead of offering an appropriate solution to orphaned or abandoned children, has become a profitable commercial operation that involves, moreover, the existence of networks involved in the trafficking of children.  In view of the gravity of the situation, the Commission celebrates the fact that the State has taken an important step on ratifying the Hague Convention on Inter-Country Adoptions, now under consideration in the Congress, which would represent significant progress. Considering that the State is not fulfilling its duties under the American Convention and the Convention on the Rights of the Child to bring its laws and practices into line with the standards set forth in these conventions, the Commission calls on the Congress to proceed to the prompt adoption of the necessary reforms.


          76.          Finally, during its visit, the Commission received information on non-governmental initiatives aimed at clarifying the situation of the children disappeared during the conflict, and the positive results in more than ten cases. It should be recalled that the reports of both the Commission for Historical Clarification and the REMHI project recommended establishing a special commission to determine the fate of the children and adults who were disappeared, and that President Portillo declared his decision to implement it.  The Commission calls on the State to comply with its pending duty to investigate and determine the facts.


          VII.          FREEDOM OF EXPRESSION


          77.          Full respect for the freedom of expression is another issue that the Commission included on the agenda for analyzing the human rights situation in Guatemala. The Special Rapporteur for Freedom of Expression accompanied the IACHR in its meetings with public officials and members of civil society, also meeting with the Secretary for Social Communication of the Presidency of the Republic, Alejandro Pérez Martínez, representatives of the Guatemalan Council for Community Communication, the Chamber of Radio-broadcasting of Guatemala, the Association of Journalists of Guatemala, the Centro de Reportes Informativos sobre Guatemala (CERIGUA), journalists, and directors of media outlets.  This visit has been useful for the rapporteur to collect the information needed to prepare a specific future visit on the situation of the freedom of expression.


          78.          The Commission is concerned about an increase in threats to journalists, particularly those who cover investigations related to acts of corruption and human rights violations. The cases of journalists Elizabel Enríquez and María de los Angeles Monzón are examples of such attacks. In addition, statements discrediting journalists and media outlets, issued from high-level governmental offices, may, if reiterated, constitute acts of harassment that contribute to creating a climate not very propitious for the full exercise of the freedom of expression in Guatemala.  The IACHR calls on the authorities to seek channels that allow for greater tolerance of criticism, and greater scrutiny of the public administration.  The IACHR received information on the increase in the number of journalists being subpoenaed for questioning concerning to their sources of information; this has a negative effect on the investigative journalism, since it would inhibit future sources of information from providing information to journalists, given the possibility that they might be forced to reveal those sources. The IACHR recalls that protection for journalistic sources should be a right respected by judges and prosecutors. 


          80.          In its Fifth Report on the Situation of Human Rights, the IACHR recommended that the possible existence of a de facto monopoly on the open television channels be investigated, and that greater plurality of the media be allowed. On this occasion, the IACHR corroborated that the situation that led to that recommendation persists. The IACHR reiterates that the existence of monopolistic practices in the communications media has a serious detrimental impact on the freedom of expression and the right to information of Guatemalans.  Issuing a license for a new cable television channel, while a new outlet for information, is insufficient as a palliative to the problems associated with open television.


          81.          In the same report, it was recommended that the regulations on television and radio concessions be reviewed to incorporate democratic criteria that ensure equal opportunity for access.  In this regard, the awarding or renewal of radio licenses should be subject to a clear, fair, and objective procedure that takes into consideration the importance of the media if citizens are to participate in the democratic process in an informed manner.  The obligation of the state is even clearer in the Guatemalan context, in relation to the implementation of the Peace Accords that call for the inclusion and participation of those majority sectors of the Guatemalan population that have traditionally been excluded, such as the indigenous peoples, peasants, women, and youths. It is, therefore, necessary to ensure the exercise of the free dissemination of thought by awarding radio frequencies for radio broadcasting, in equal conditions, so as to assure the representation of all sectors that make up Guatemalan society.


          82.          Finally, the IACHR reiterates once again the need to undertake promotion and training campaigns on the right to freedom of expression, and to adopt measures aimed at eliminating obstacles to the exercise of the freedom of expression.



Guatemala City, March 29, 2003

[1] Marta Altolaguirre, President of the IACHR and a Guatemalan national, refrained from participating in the delegation, in keeping with Article 17 of the Commission’s Rules of Procedure, which provides that the members of the Commission may not participate in deliberations or decisions on matters referring to the countries of which they are nationals.

[2] Marta Altolaguirre, President of the IACHR and a Guatemalan national, refrained from participating in the delegation, in keeping with Article 17 of the Commission’s Rules of Procedure, which provides that the members of the Commission may not participate in deliberations or decisions on matters referring to the countries of which they are nationals.