IV.      THE ADMINISTRATION OF JUSTICE 

54.     In the Report on Guatemala, the IACHR paid particular attention to the basic challenge of creating a judicial system that provides effective protection for the population’s rights, it being the national judiciary that necessarily serves as the first line of defense for individual rights and freedoms. The Commission stated that an independent and effective judiciary is an essential element of a modern democratic system, with the capabilities of the legal system in harmony with the country’s development goals.

55.     In the Fifth Report, the Commission noted that although the State of Guatemala had undertaken a number of positive actions aimed at strengthening the system, impunity still prevailed in cases involving human rights violations both past and present. This impunity controverts the State’s obligations under national and international law, subverts the most basic principles underlying the peace accords, and undermines the rule of law. The inability of the judiciary to provide protection for basic rights and the lack of public confidence in State mechanisms exacerbates the potential for social conflict. The IACHR identified another manifestation of the shortcomings of the justice administration in the absence of an appropriate response to such serious violations as, for example, lynchings or the threats and attacks made against victims, witnesses, lawyers, and judges in reprisal for their efforts to secure justice.

          56.     In light of these conclusions and in connection with the right of all persons to free and effective access to the facilities and institutions of justice, the Commission offered the State the following recommendations:

1.       Continue and fortify its positive work in increasing the number and quality of judicial facilities established throughout the country. Intensify efforts to modernize the administration of justice, including through the expansion of initiatives to implement effective procedures for managing judicial files and court dockets.

2.       Greatly enhance its nascent efforts to provide interpretation services in judicial proceedings to ensure that indigenous inhabitants may exercise their right to judicial protection and guarantees under conditions of equality with the rest of the population.

3.       Intensify efforts to improve the access to justice of the indigenous population by: expanding initiatives designed to orient local institutions of justice to respond to local needs and respect positive traditional practices for conflict resolution, with their principles, criteria, and procedures; expanding community outreach programs; and by further incorporating the participation of the indigenous sector–at both the national and local levels–in the design and implementation of judicial policy.

4.       Further increase the amount of public spending allocated to the administration of justice, continuing the progress seen in the State’s compliance with its commitment to date in this area.

Modernizing the Administration of Justice

          57.     The Commission has received no information about the implementation of measures to increase the number of judicial facilities or to modernize those that exist. With respect to measures for modernizing the administration of justice, the State reported that the judiciary is working on the modernization of the justice system and that a series of committees have been set up to study, analyze, and propose mechanisms for strengthening justice. However, the Commission has received no information about the specific steps taken toward that goal.

58.     With respect to the reach of the judiciary, in its comments to this report the State said that to assist the population in securing easier and more effective access to justice, it had increased the number of courts in areas that had historically been denied those services; these areas are currently being favored by pilot projects, such as the bilingual judges and officials program, enabling people to express themselves in their own language. The State referred to a series of mechanisms created to provide police, civil, judicial, and other services in order to resolve conflicts away from the courts, particularly those involving land ownership.

Judicial Guarantees and Access to Justice by the Indigenous Population

59.     As regards the second recommendation, in its 2001 verification report MINUGUA said that the State of Guatemala had increased “the number of positions for court interpreters in areas with indigenous populations and had encouraged the hiring of judges proficient in indigenous languages in municipalities with majority indigenous populations.” The Commission commends the State’s efforts; however, considering that around half the population of Guatemala belongs to Maya, Xinca, or Garífuna peoples, those efforts must be deemed incipient.

60.     At this juncture it should also be pointed out that these efforts must not only be directed at the translation of languages other than Spanish within the country’s justice system; they must also aim at training court workers to understand Guatemala’s indigenous peoples, who have their own languages and cultures, and at publicizing information about the administration of justice (rights, procedures, etc.) in the languages of Guatemala’s indigenous people.

          61.     With respect to the third recommendation, it should be recalled that the Guatemalan Constitution recognizes, respects, and promotes the lifestyles, customs, traditions, and forms of social organization of the country’s indigenous peoples. Additionally, the Peace Accord on the Identity and Rights of Indigenous Peoples states that the traditional norms of indigenous peoples have been and continue to be an essential element for the social regulation of the life of their communities and, consequently, for the maintenance of their cohesion; it further recognizes that both the failure of national legislation to take account of the customary norms that govern life in indigenous communities and the lack of access by indigenous peoples to the resources of the national judicial system have resulted in the denial of rights, in discrimination, and in marginalization.

62.     In its comments on paragraphs 44, 45, and 46 of the follow-up report, the government of Guatemala explained that agencies of the State had undertaken a series of actions to redefine how indigenous customary law is applied and how indigenous authorities are recognized, and to establish the right of consultation and participation.

63.     Within the Supreme Court of Justice, for example, attention has been paid to the ethnic makeup and bilingual skills of staff members in official positions–bailiffs, psychologists, judges–in the departments with the highest levels of indigenous population. In the departments of Alta and Baja Verapaz, 92 justice officials speak the Q’eqchí, Achí, and Pocomchí languages; in the department of Chimaltenango, 72 speak K’akchikel and Kiche’; in Quiché 68 officials speak Kiche’, Ixil, Q’eqchí, Sacapulteco, Uspanteco, and Jacalteco; in Guatemala department 64 speak K’akchikel, Achí, Q’eqchí, and Mam; in Huehuetenango 60 speak Mam, Canjobal, Popti, Jacalteco, Chuj, Acateco, and Tectiteco; in Quetzaltenango 33 speak Kiche’, Kakchikel, and Mam; in Sacatepéquez 8 speak K’akchikel and Kiche’; in San Marcos 10 speak Mam and Kiche’; in Sololá 67 speak Kiche’, Tzutujil, and K’akchiquel; and in Totonicapán 13 speak Kiche’, Tzutujil, and Kakchikel.

64.     The State added that this strengthening of the bilingual staff was in response to the comments made by MINUGUA, and that it will have effects in the medium and long terms in tackling the acts of discrimination that have historically characterized the administration of justice in Guatemala.

65.     Another of the Supreme Court’s actions has been to assign official interpreters to courts of law, where they have the duty of assisting Maya speakers and ensuring justice is done in their mother tongues and in the official language. The government notes that although this initiative–which stems from the Peace Accords–is still not enough, it has led to the implementation of a new practice that generates a change in the country’s legal structure and must be seen as a process for the medium and long terms.

66.     Official interpreters are located in the following regions: 10 in Alta and Baja Verapaz, 5 in Chimaltenango, 10 in Quiché, 2 in Huehuetenango, 5 in Quetzaltenango, 1 in Sacatepéquez, 1 in San Marcos, 3 in Sololá, 1 in Suchitepéquez, and 1 in Totonicapán.

67.     The State of Guatemala’s comments on the follow-up report note that the Supreme Court’s efforts to introduce legal pluralism have also been accompanied by the creation of Community Courts, [14] in the municipalities of Santa María Chiquimula (Totonicapán department), San Rafael Petzal (Huehuetenango), San Andrés Semetabaj (Sololá), San Miguel Ixtahuacán (San Marcos), and San Luis (Petén). In this last instance, the local community played a direct role in appointing the judge by nominating a three-member shortlist from which the community judge was selected. The State said that these were experiences that could well be emulated in selecting court personnel.

68.     It added that a pilot program was underway in the departments of Quetzaltenango and Sacatepéquez aimed at eradicating domestic violence, and that most of the cases it dealt with involved indigenous citizens. In spite of constant denials, the State of Guatemala maintains that many indigenous areas often have high levels of domestic violence. It explained that the Supreme Court of Justice has introduced mediation and conciliation mechanisms to help resolve conflicts and that these have minimized rural conflicts; it also said that the launch of a specialized library on indigenous matters will increase awareness of and help the enforcement of the indigenous peoples’ own laws.

69.     The State added that another important step forward in the judicial field was the ongoing work of the Public Prosecution Service (MP), with particular emphasis on the following actions:

70.     The work of the Municipal Representatives, who resolve conflicts on a timely basis in places where the MP has no officials and where indigenous uses and customs are often observed.

71.     The Labor Ministry’s Convention 169 Unit, which has been working with the MP on guidelines for providing training about Convention 169 and for enforcing it in various regions of the country, particularly indigenous areas. The training effort has been aimed at the MP’s prosecutors, so they can apply the principles of indigenous law in accordance with the provisions of the international legal framework.

-         The effort to establish a Prosecutor’s Office for Indigenous Peoples.

-         During 2003, the Faculty of Legal and Social Sciences at San Carlos University in Guatemala City introduced a course on indigenous law; this will strengthen the institutional efforts by providing the lawyers and notaries of tomorrow with direct training and thus creating a new multilingual, multicultural, and multiethnic awareness, as described in the Peace Accords.

72.     Among the commitments acquired in the peace accords, the government agreed to propose to Congress, with the participation of indigenous organizations, the development of laws that would recognize the right of the indigenous communities to manage their own internal affairs in accordance with their customary norms, provided that the latter are not incompatible with the fundamental rights protected by the national legal system or with internationally recognized human rights.

73.     As regards the preceding paragraph, the State of Guatemala claims to have met its commitment in that during 1999 the population was offered, in a referendum, a series of proposed constitutional amendments, one of which dealt with the indigenous legal system; these amendments were rejected by the citizens who participated in the referendum.

74.     As the Commission stated in its 2001 report, if enshrined in the Constitution and put into practice, the commitments acquired under the Peace Accords would offer an important educational, political, and legal tool for fighting the discrimination against indigenous peoples that exists in Guatemala. The Commission believes that the State of Guatemala must continue to make serious efforts to legally recognize the right of indigenous peoples to manage their internal affairs in accordance with their customary rules.

75.     The Commission notes that the efforts made in this area have been sponsored, in general, by academic, nongovernmental, or indigenous organizations, with some debate taking place about the matter. However, the State has not pursued actions aimed at the effective development of legislation to recognize indigenous law in Guatemala.  

Budget of the Judiciary

76.     The Commission has received information indicating that the approved budget for 2002 was down 11 percent compared with the 2001 budget and down 4.4 percent compared to 2000’s. [15] However, the Commission observes that in the budget adopted by Congress for the year 2003, the judiciary has been allocated Q600 million, [16] representing an increase of Q192,926,091 over the previous year’s figure. Although the allocation is still not enough to fully cover the operating costs of the judiciary and its expansion and modernization plans, the Commission sees the increased budget for the justice sector as a positive step, in spite of the general budgetary constraints.

Access to Justice

77.     In connection with the right of all inhabitants to prompt and effective justice, the Commission recommended that the State:

1.    Greatly intensify efforts to recruit and train members of the National Civil Police, and particularly the Criminal Investigation Service, to ensure that they have the manpower, qualifications, and resources to carry out a criminal investigation in accordance with the standard of due diligence.

2.    Immediately put an end to military participation in any activity of criminal investigation, consistent with domestic law and its commitment to separate police and military functions under the Agreement on the Strengthening of Civil Society.

3.    Take the measures necessary to ensure the cooperation of all public entities in the investigation of human rights violations, including the legislative and other measures necessary to ensure the right of free access to information contained in government files and documents, particularly in the case of investigations to establish responsibility for international crimes and grave human rights violations.

4.    Strengthen the procedures for collecting, analyzing, and storing evidence in criminal cases.

5.    Implement concrete measures to facilitate coordination between all the institutions involved in responding to violations of the law with due investigation, prosecution, and punishment, and, most especially, to develop the necessary cooperation between the Public Prosecutor and the National Civil Police in the area of criminal investigation.

6.    Fortify the capacity of public prosecutors and defenders to represent the interests of justice in the judicial process, including through the implementation of enhanced recruitment initiatives; training programs designed to correspond directly to the demands of the job; incentives to retain trained, competent professionals; and oversight efforts designed to identify and remove those unable or unwilling to represent the interests of justice.

          78.     The Commission notes that a shortage of resources is the main obstacle keeping the PNC Academy from teaching sufficient specialized courses. MINUGUA reported that inadequate material resources and institutional conditions had hindered the launch of specialized courses in judicial proceedings and other areas.^[17] In its comments the State reported that the 2003 budget of the PNC totaled Q1,324,133,516, with an increase of Q238 million. Regarding specialized criminal investigation courses, the State made reference to a program that the International Criminal Investigative Training Assistance Program (ICITAP) has been giving to officers of the PNC, the Public Prosecution Service, and the judiciary, under an agreement entered into by the US and Guatemalan governments.

          79.     The Commission notes that despite the recommendation that military involvement in criminal investigations cease, the army continues to participate in investigating crimes. Indeed, MINUGUA reported that not only does the army continue to provide intelligence support for tackling organized crime and common delinquency, the Armed Forces Intelligence School continues to prepare and train PNC officers. [18]

          80.     As regards the implementation of concrete measures for facilitating cooperation among the agencies involved in investigating human rights violations, the Commission has received information indicating that Guatemala has not taken adequate steps to overcome the lack of coordination among those agencies, particularly the PNC’s Criminal Investigation Section and the Public Prosecution Service’s Directorate of Criminal Investigations. In connection with this, the State’s comments reported on an agreement of understanding signed by the Attorney General and the Interior Minister, stipulating that the MP’s prosecutors are to be responsible for leading criminal investigations, using the means and resources available to them for discharging the legal duties incumbent on them.

          81.     Guatemala’s new attorney general, Carlos David de León Argueta, informed the Commission about the reinstitution of the Crime Policy Committee, the main goal of which is to consolidate cooperation among the different bodies of the judicial sector in establishing joint crime policies, programs, and projects. The Commission hopes that this Interinstitutional forum will soon have a positive impact on criminal investigations.

          Access to Government Information

          82.     In connection with access to data held in government files and archives, the information available indicates that in October 2002 Congress approved, on its second reading, the draft Law on Information Access presented by the Secretariat for Strategic Analysis (SAE). This law will regulate matters including access to information on military or diplomatic matters affecting national security, and it will set procedures and levels of classification and declassification. However, the Commission has received reports, some submitted through its case system, that certain government agencies have failed to provide the information and documents required by legal investigations into serious human rights violations.

83.     In its comments, the government of Guatemala stated that it did not share the Commission’s view that the administrative authorities did not collaborate in judicial investigations. The Guatemalan Constitution clearly rules that all administrative actions are public in nature, with the exception of those indicated by law. Since there are no rules governing this, the administrative authorities’ actions must be guided by the legal provisions currently in force. While the Commission appreciates the State’s comment and understands that the law supports it, it believes it should point out that in practice, in the cases brought before it, it has seen some public authorities refuse to accede to requests for information lodged by judicial authorities and even by the ombudsman.

84.     The Commission believes that congressional passage of the Law on Information Access is essential, and it encourages the efforts made in this regard by the SAE.

          85.     With respect to the strengthening of the office of the attorney general, as the Commission has already said, the success of measures to overcome impunity in human rights cases depends on the strength of the mechanisms used to investigate them. The Commission applauds the creation of the Special Human Rights Prosecutors Unit and the attorney general’s efforts to secure the resources needed for a comprehensive restructuring of the Public Prosecution Service; it further urges the State to provide it with the funding needed to achieve that goal.

Judicial Career

86.     Regarding the right of all persons to access to a competent and independent judiciary, the Commission offered the State the following recommendations:

1.     Adopt the legislative and other measures necessary to complement the entry into force of the Law on the Judicial Career and extend the five-year period of service for judges and magistrates to one compatible with the security of judicial tenure, consistent with the recommendation of nine years by the Commission on the Strengthening of the Judiciary, and ten years by the UN Special Rapporteur on the independence of judges and lawyers.

2.     Devote special attention to the implementation of the Law on the Judicial Career to ensure diligent oversight and discipline consistent with the objective of professional excellence, and that the designated procedures for due process in questions of transfer or discipline are fully put into practice.

87.     Regarding the recommendation that legislation be adopted to extend judges’ tenure from five to ten years, the United Nations special rapporteur on the independence of judges and lawyers reported that the Supreme Court of Justice had attempted to introduce a constitutional amendment to abolish the five-year period and to bring their office into line with the principle whereby judges cannot be removed from their posts, which is fundamental to the independence of the judiciary. [19] The Commission has no information about the results of that initiative.

88.     With respect to the diligent oversight recommendation, the Commission believes that the functioning of the Judicial Disciplinary Board (JDJ) is of key importance. Charged with resolving complaints lodged against judges and magistrates, as of March 26, 2001, it had received 844 cases; of these, 481 had been dismissed, 71 visits had been conducted, and a further 56 were being planned, according to figures in the Special Rapporteur’s report. [20]

          Independence and Impartiality of the Judiciary

89.     In relation to the independence and impartiality of the judiciary, and to threats and intimidation made against people pursuing justice, the Commission recommended that the State:

1.    Take urgent action to devote the necessary human and material resources and political will to providing measures of protection to victims, family members, witnesses, prosecutors, public prosecutors and defenders, judges and judicial personnel, and others threatened or attacked in connection with judicial processes.

2.    Establish an interinstitutional working group, including representatives of the National Civil Police, the Offices of the Public Prosecutor and Public Defender, the Judiciary, and any other entity at special risk or with special responsibility in this area, to facilitate cooperation in the design and implementation of the appropriate measures of protection.

3.      Adopt comprehensive measures to ensure a coordinated response to and the prompt and effective investigation of all denunciations of threats or attacks with a presumed link to judicial processes, in order to identify, prosecute, and punish those responsible in accordance with national law.

4.     Ensure that State personnel assigned to deal with such threats and attacks, particularly in the case of the National Civil Police and Office of the Public Prosecutor, have the necessary qualifications and expertise to respond with due diligence.

5.     Adopt a code of legal ethics and promote compliance through training, both within the judiciary and as part of legal education, as well as through strengthened oversight and disciplinary measures.

6.     Adopt practical measures to prevent opportunities for corrupt practices, such as expanding the initiatives adopted in some courts to reorganize working spaces of court functionaries to make them more open and accessible, and to modernize file and docket control systems.

7.     Implement specific mechanisms of supervision and oversight to detect corruption, and to ensure prompt investigation, prosecution, and the imposition of disciplinary or penal sanctions. The Commission supports the recommendation of the UN Special Rapporteur on the independence of judges and lawyers that an independent enforcement agency with the power to investigate complaints of corruption in public office, including the judiciary, and to submit matters for prosecution be established.

          90.     The Commission has received with extreme concern reports indicating that threats, harassment, and other acts of intimidation are still practiced against officers of the judicial branch. In particular, as regards the first recommendation, the Commission has noted, most especially through its precautionary measures mechanism, the State’s efforts to protect individuals who have suffered threats and other attacks on account of their involvement in judicial processes. The Commission has been informed, however, that they are insufficient. For judicial officials, the Supreme Court of Justice set up a Judicial Security Office, which is charged with studying security problems and drafting recommendations; however, the Court’s president reduced the protection measures extended to judges on account of budgetary constraints. [21]

          91.     The Commission has no information regarding the second recommendation.

          92.     With respect to the third recommendation–the investigation of threats made against persons involved in judicial processes–on February 7, 2001, the Special Prosecutors Unit for Crimes against Justice Officials was established. This unit was given 114 cases during 2001 and another 47 during the first six months of 2002. The Commission applauds the work of the Public Prosecution Service in protecting officials of the judiciary; however, it has received information indicating that the Special Prosecutors Unit does not have sufficient human and technical resources and that in most of the cases, the investigations have yielded no results.

93.     Regarding the fourth recommendation, the Commission has been told that neither the PNC nor the Public Prosecution Service have the resources for teaching specialized courses.

          94.     With reference to the fifth recommendation, the Supreme Court of Justice adopted a Code of Judicial Ethics in March 2001; however, the Commission has no information about its enforcement or observance.

          95.     Regarding the implementation of measures to prevent, investigate, and punish corruption, the Commission was informed about the recent restructuring of the Public Prosecution Service’s Anticorruption Unit. The State reported, in its comments document, about the creation of an anticorruption commission that brought together all the agencies of the judicial sector in order to implement a plan to prevent, fight, and eradicate corruption; about the MP’s launch of a preventive publicity campaign against corruption, drug trafficking, and other high impact crimes; and about the establishment of the Commission for Transparency, made up of distinguished figures from Guatemalan society.  

Impunity and Denial of Justice

96.     In relation to the situation of impunity and denial of justice which characterizes, in particular, cases of human rights violations, the Commission recommended that the State:

1.    Implement the recommendation of the UN Special Rapporteur to remove persons known to have committed human rights violations during the armed conflict from public office and from the military, and to ensure that they are not appointed to public office in the future.

2.    Intensify efforts aimed at clarifying the human rights violations of the past in order to prosecute and punish those responsible in accordance with applicable law, and ensure that the victims receive just compensation.

          97.     Regarding the dismissal of public employees and members of the military for human rights violations committed during the armed conflict, the Commission has received no information from either the State or other sources to indicate that the government or the armed forces have undertaken the elimination of such elements from their structures. In its comments the State said that public officials and employees can only be removed or dismissed when there is a judicially proven accusation linking a public employee with the commission of a crime. In spite of this, the State explained that in cases in which the involvement of public employees in crimes had been reported, the relevant administrative steps and corrective measures had been taken.

          98.     With respect to the prosecution and punishment of past violators of human rights, the Commission notes with extreme concern that the widespread impunity surrounding the violations committed during the armed conflict remains unaltered. Both through its case system and at its general hearings, the Commission has received information indicating that to date, the judicial authorities have refrained from prosecuting and punishing practically all the perpetrators of human rights violations that took place during the armed conflict.

99.     Although the Commission sees that major efforts have been made in cases such as that of the anthropologist Myrna Mack, in which one of the masterminds behind her killing was convicted by the first-instance court, in other high-profile cases such as the Dos Erres massacre, the criminal proceedings against the members of the army have not progressed since the trial began in 1994. [22]   With respect to this case, the State’s comments disagree with the IACHR’s position. Guatemala maintains that the criminal trial has progressed, since the Public Prosecution Service has terminated the investigation phase, and it explains that the proceeding has been halted by the more than 50 amparo remedies filed by the defendants’ attorneys who have, in this case, made use of the legal remedies offered by Guatemalan law. In any event, the State of Guatemala has respected the judicial guarantees set forth in law and the assumption of innocence enshrined in the Constitution of the Republic.

100.   In this connection, MINUGUA has stated that the right to justice remains precarious in Guatemala, and that judicial processes are constantly delayed by dilatory appeals. [23] The Commission understands that everyone has the right to recourse for protection against acts that violate their human rights, as stipulated by Article 25 of the American Convention. However, the Commission sees the abuse of amparo remedies as a source for particular concern, and it urges the judicial authorities to prevent such remedies from becoming a legitimate mechanism for obstructing justice in cases of serious human rights violations.

101.   Once again, the Commission urges the State of Guatemala to adopt the measures necessary to ensure that those responsible for the human rights violations of the past are brought to justice and punished.

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