V.          THE RIGHT TO LIFE

Lynchings

102.   With regard to the phenomenon of lynchings, the Commission recommended that the State:

1.    Analyze and document the nature, characteristics, and extent of lynchings and attempted lynchings, and design integrated strategies aimed at preventing their repetition, and at fomenting measures of nonviolent conflict resolution.

2.    Amplify and intensify efforts underway to educate and train police, prosecutorial and judicial officials, and authorities and leaders at the local level in strategies to prevent lynchings and to respond to incidents that occur so as to avoid bloodshed.

3.    Further incorporate the participation of members of the affected communities in the design and implementation of the programs referred to above.

4.    Establish a process, incorporating the participation of law enforcement, prosecutorial, and judicial officials at the national and local levels, to review cases of lynchings and attempted lynchings, to verify the status of each investigation and/or prosecution underway, and to determine the actions to be taken to impel each to a definitive resolution.

Integrated Strategies

103.   With reference to the first recommendation, which deals with the design of strategies aimed at preventing further lynchings and at fomenting nonviolent conflict resolution, the Commission commends the efforts made by the State and several of its agencies in eradicating these manifestations of social violence. The MINUGUA verification report notes that in recent years, the government of Guatemala has made major efforts to step up its presence in the interior of the country and to strengthen the human and material resources of the bodies responsible for law enforcement and the administration of justice. As a result, practically all municipalities now have police stations and magistrates courts (“courts of peace”), numerous conciliation centers have been established, and there has been an increase in the numbers of prosecutors, public defenders, and first-instance courts. However, in addition to underscoring the importance of those efforts by the authorities, the Commission believes it must reiterate that the State’s efforts, if they are to be effective vis-à-vis such a complex phenomenon, must be a part of an integrated, planned strategy.

104.   In light of the information supplied, the Commission notes that the increase in institutional coverage has not led to a commensurate decrease in the number of lynchings. Specifically, MINUGUA’s Thirteenth Report on Human Rights states that during the period July 2001 through June 2002 there were 57 lynching incidents or attempted lynchings carried out against 139 people, resulting in 21 deaths, some of whom were not of adult age. Accordingly, we underscore and insist on the need for the State to incorporate the different strategies adopted by its different agencies into a global strategy that can then seek out the necessary complement of support from political and social leaders.

Education, Training, and Civic Participation

105.   With respect to the second recommendation, the Commission recognizes the positive impact of the Lynching Prevention Program launched in 1999 by the Unit for the Modernization of the Judiciary, the Ministry of Education, and the National Civil Police, in conjunction with MINUGUA. It should be pointed out that other institutions and bodies gradually became involved in these activities, including the National Civil Police, the Ministry of Education, COPREDEH, INGUAT, FONAPAZ, and SEPAZ. [24]

106.   The Commission notes the important consensus-building power of these workshops and reiterates the need for continued joint efforts to achieve the project’s ongoing implementation.

107.   The Commission believes that the State’s actions as regards the third recommendation–community participation in the implementation of these programs–have been weak. The State’s initiatives must be aimed at the goal of generating points of commonality and forums for interrelations between judicial officers and communities, enabling discussions and the identification of the problems faced in seeking out effective, joint solutions. It is also essential that the institutions closest to the population are strengthened as civil institutions in order to achieve greater social legitimacy.

108.   In its comments on this follow-up report, the State indicated that the Judiciary Modernization Unit, with financial support from the World Bank, had planned and carried out a series of lynching prevention workshops. It also said that members of the PNC had received seminars on alternative conflict resolution methods, with support from the Guatemalan Institute of Comparative Criminal Science Studies, and that COPREDEH had held lynching prevention workshops in 11 regions of the country.

Review Processes

109.   In connection with the fourth recommendation–regarding a process for reviewing lynching cases and attempted lynchings–the Commission notes with concern that in spite of the seriousness of this phenomenon, the number of prosecutions and the number of judgments handed down against the perpetrators is very small. The Commission thus believes that the recommendation has not been effectively implemented by the State and, consequently, the impunity that generally surrounds lynchings has not been dissipated by conducting the relevant investigations, punishing the guilty, and redressing the victims.

110.   Thus, between January and June 2001, MINUGUA recorded seven lynchings in which one or more victims lost their lives, and it carried out a verification of the official investigations that ensued. Some nine months after the incidents, five of the cases had been filed or had simply not progressed at all since the initial formalities (police report, coroner’s report, death certificate).

111.   The Commission notes with concern that the failure to comply with this recommendation can be seen most clearly in those fatal lynchings involving official actions that served to further the impunity surrounding them. It has information that describes this situation and bears witness to the urgent need for a consolidated institutional commitment toward addressing this phenomenon with legal measures. This information states that on March 29, 2001, in Franja Transversal del Norte, Chisec, Mr. Cornelio Betancourt was murdered, apparently in a mugging carried out by two unknown assailants. Later, a group of local people caught, beat up, and burned those individuals. The Public Prosecution Service’s file contains the police report, which describes the incident, refers to two possible witnesses, the coroner’s report, the forensic report, and the SIC’s report describing the events that took place and setting the task of interviewing the witnesses. Three months after the lynching neither the Public Prosecution Service nor the SIC had pursued any further formalities, such as summoning the two individuals identified as witnesses in the police report, and the file was about to be sent to archive because the perpetrator had not been identified. [25] In connection with this, Amnesty International has stated that impunity in Guatemala is a key factor behind the new and growing incidence of human rights violations. The Commission therefore reiterates to the State the need to focus its political will on encouraging the competent judicial bodies to review and duly process lynching cases toward their final resolution.

          112.   In conclusion, in spite of the State’s significant efforts in addressing this phenomenon of social violence, the Commission, in consideration of its complexity and deep roots in the social fabric, underscores the pressing need for designing a law-and-order policy that includes strategies for addressing these crimes and provides methods for preventing and punishing them. Another essential step is to design general and operations plans that specifically address the lynching phenomenon, and to encourage coordination between the justice administration system and the other agencies of the State in order to secure results in investigating and punishing these crimes.

          Social Cleansing

113.   The Commission offered the State the following recommendations with regard to the phenomenon of social cleansing:

1.    Enhance the human and material resources dedicated to the investigation of such crimes to ensure the existence of an adequate evidentiary basis for the identification of those responsible and their eventual prosecution and punishment.

2.    Adopt the measures necessary to ensure that crimes linked by a common modus operandi are investigated in light of their possible connection.

3.    Redouble its efforts to investigate such crimes with an apparent link to State agents and/or illegal groups, such as former military commissioners and PAC members. Only effective investigation, prosecution, and punishment can stem the persistence of abuses by such actors.

114.   The Commission notes with extreme concern that its recommendations given in connection with the subject of social cleansing have not been implemented, revealing stagnation and a lack of concrete progress in the treatment of this delicate issue.

115.   The Commission underscores the need for the State’s efforts to focus on the recommendations offered as regards the persecution and extermination of members of specific groups–such as suspected criminals, homosexuals, and street children–which represents, as stated in its Fifth Report, a particularly reprehensible violation of the right to life and humane treatment and has repeatedly been condemned as such by the Commission. [26] . Specifically, as regards street children or youngsters who spend much of their days on the streets, during 2002 the IACHR received information about a number of violent attacks carried out against the boys, girls, and adolescents who live on the streets in a state of complete defenselessness. These incidents include a firearm attack on six youngsters during the night of July 20, 2002, while they were sleeping on Avenue 9 and Street 30, Zone 8, in Guatemala City, in which three of them were killed and three were seriously wounded; an attack on a girl in which two men dropped 50 lb (23 kg) of stones on her while she slept in the morning of August 15, 2002, at the bus station located in Zone 4 of Guatemala City; and a firearm attack against a total of 22 boys, girls, and adolescents who were sleeping in a house in downtown Guatemala City in the morning of October 16, 2002. The Commission was also informed about the murder of the teenager Engelberth Armando López González, which took place at 2:00 am on November 4, on a corner of Street 8 between Avenues 11 and 12, in Guatemala City’s Zone 1.

116.   In its comments submission the government of Guatemala said that it shared the Commission’s concern about specific cases involving street children but that regardless, those incidents should not be associated with a pattern of social cleansing but rather with the climate of common crime prevailing in the country, against which the government is deploying intense efforts. The State reported that to date, in general terms, there were no indications of the existence of social cleansing operations.

117.   With respect to acts of violence against children and young people who live on the streets or spend much of their days there, the IACHR welcomes the fact that the State of Guatemala shares its concern regarding the specific cases referred to by the Commission, which are common knowledge at the international level. However, the Commission would like to note its apprehension about the fact that the State merely expressed its concern regarding the aforesaid cases of violence, without concluding that the incidents constitute social cleansing; neither did it submit a single argument to support that conclusion. Thus, not only does the State of Guatemala fail to provide any additional information about the investigation, identification, and punishment of the perpetrators of these grave incidents of international importance, but it also classifies them as belonging to a pattern of common crime.

118.   The Commission notes that the argument most frequently used by defendants of social cleansing campaigns is to blame growing levels of insecurity among the citizenry on street children and on sectors deemed dangerous for historical or circumstantial reasons, and to condone informal repression on the grounds that the state agents charged with enforcing the law are inadequate to the task. Believing it to be a most serious phenomenon, the Commission notes with great concern the persistence of a pattern of systematic and brutal violence against street children and youngsters that resembles what has been called the social cleansing of sectors deemed “undesirable,” “marginal,” “dangerous,” or “potential criminals”–traditionally the case with the socioeconomically disadvantaged children and adolescents who live on Guatemala’s streets.

119.   In light of the above, the Commission emphasizes the need for the State to redouble its efforts to investigate, prosecute, and make amends for these crimes and, consequently, prevent them from reoccurring and impacting society.

          Extrajudicial Killings

120.   In relation to extrajudicial executions by State agents in custodial situations and through abuses of authority, the Commission urged the State to:

1.    Implement additional training activities to ensure that members of the National Civil Police are fully apprised of the procedures to be followed in effectuating arrests and detentions.

2.    Adopt further measures of training, oversight, and enforcement to ensure that State agents authorized to use force apply it in strict conformity with the principles of necessity, exceptionality, and proportionality set forth in the UN Code of Conduct for Law Enforcement Officials.

3.    Take additional steps to ensure that any deprivation of liberty effectuated by a State agent is immediately registered, and subject to judicial supervision without delay.

4.    Implement the measures necessary to suspend officers under investigation for incidents involving excessive force or abuse of authority.

121.   The Commission has received information indicating that the State has made no significant progress with these recommendations. MINUGUA received reports of 89 alleged human rights violations between July 2001 and June 2002, and it confirmed 13 extrajudicial killings and 25 attempts. [27]

122.   Specifically, as regards the first two recommendations in the section, dealing with training, information, and oversight for agents of the State in compliance with the terms of the UN Code of Conduct for Law Enforcement Officials, the Commission notes with concern that no positive results have been reported.

123.   State agents continue to commit serious human rights violations; excessive use of force by PNC members is one of the causes of extrajudicial killings. MINUGUA has reported cases in which detainees have been shot while in custody; Otoniel Ramos Suchite, for example, who died on October 17, 2001, in Quebrada de Agua, Zacapa. Some 50 police officers from La Unión, Gualán, and Zacapa had been sent to arrest Ramos Suchite, on charges of murder and robbery, and, according to witnesses, he was shot by the police as he emerged, unarmed, from his home. Likewise, on January 29, 2002, during an illegal incursion into the village of Chocón, Izabal, members of the police Antinarcotic Operations Department (DOAN) opened fire on a group of people, killing two. At first, the police claimed that the two fatalities–Abinail Cerna Castañeda and Leonel Arnoldo Díaz Valenzuela–were drug dealers who had resisted arrest. However, National Civil Police’s Professional Responsibility Office (ORP) has made 17 of the department’s officers available to the courts in connection with the case. The Commission recognizes the speed and seriousness of the actions of the ORP and the MP in this case, which, according to information given to the Commission by the attorney general, filed charges against 16 DOAN officers on July 28, 2002. On October 17, 2002, under an agreement issued by the Interior Minister, the DOAN was disbanded. The Commission believes that in this case, the government adopted exemplary measures that should be applied with similar vigor in other cases involving right violations and corruption.

124.   As regards the IACHR’s recommendations on the question of extrajudicial killings, the State’s comments indicate, first of all, that training on arrest procedures and the Code of Conduct for Law Enforcement Officials has been given to PNC officers through workshops and lectures and in the different courses contained in the study plans–basic and specialized alike–at the Academy.

125.   With regard to the administrative actions that the IACHR recommended, the State reported that in general terms it had been told about such actions carried out by senior officials at the Defense Ministry, the Interior Ministry, the judiciary, and the National Civil Police, following reports of security force involvement in actions leading to the loss of human life. However, the Commission notes that the State did not specify the cases in which those actions have been pursued nor the penalties, if any, that have been applied.

Forced Disappearances

126.   On the question of forced disappearances, the Commission urged the State to:

1.    Adopt the measures required to promptly and thoroughly investigate the isolated cases denounced to ensure that the fate of the victims is clarified and those responsible are held accountable.

2.    Ensure that any failure of any State agent to register a deprivation of liberty and subject the detention to judicial supervision without delay is met with the prompt application of enforcement measures to hold him or her accountable.

3.    Give due consideration to the withdrawal of its reservation to the application of Article V of the Inter-American Convention on Forced Disappearances, in light of its obligations as a Party, and its obligations under domestic law and the inter-American system generally.

127.   The Commission has no information about the State’s compliance with the first two recommendations. Although the State’s comments claimed that in general terms it had investigated those isolated and occasional cases in which forced disappearance was suspected, the Commission believes that the information is insufficient to assess the degree of compliance with its recommendations.

128.   In light of its failure to observe the terms of the recommendation, the Commission once again calls on the State to give due consideration to withdrawing its reservation to Article V of the Inter-American Convention on Forced Disappearances.

          Death Penalty

129.   In connection with the imposition and application of the death penalty, the Commission recommended that the State:

1.    Consider presenting a request for an advisory opinion before the Inter-American Court of Human Rights to reconcile the divergent interpretations of domestic courts as to the compatibility of the amplification of the death penalty to apply to kidnapping which does not involve the death of the victim with the Constitution and the American Convention.

2.    Consider, in light of the requirement of scrupulous adherence to all due process guarantees in the face of this irrevocable penalty, imposing a moratorium on executions until the basic reforms contemplated in the peace accords to correct serious deficiencies in the administration of justice are implemented and operative.

3.    Take the legislative and/or administrative measures necessary to prescribe a process to request clemency and make related representations in cases where this penalty has been imposed.

130.   As it has already stated in its Fifth Report on Guatemala, the Inter-American Commission believes it must point out that although the American Convention does not prohibit capital punishment, its application must be carried out in strict compliance with Article 4 of that international instrument. The following paragraphs assess the extent to which the recommendations presented to the State have been put into practice.

Request for an Advisory Opinion

131.   The Commission notes that the State of Guatemala has not as yet complied with the terms of the first recommendation by lodging a request for an advisory opinion with the Inter-American Court to reconcile the domestic courts’ divergent interpretations of whether or not applying the death penalty to kidnappings that do not involve the death of the victim would be compatible with the American Convention.

132.   The Commission has received information stating that twelve people are currently facing the capital punishment for deathless kidnappings; although nobody has yet been executed under that law, their sentences have been upheld or are currently being examined by either the Supreme Court of Justice or the Constitutional Court. Accordingly, the Commission reiterates how important it is for the State to comply with that recommendation.

Moratorium on Executions

133.   The Commission notes with satisfaction that the State has duly implemented its recommendation that a moratorium be placed on executions until the justice system has adopted the reforms set forth in the peace accords. However, the IACHR believes it must point out that this decision issued by the high echelons of government still requires a legal framework. 

Pleas for Clemency

134.   With respect to the fourth recommendation, the Commission notes with concern that the State of Guatemala has not as yet enacted legislation to regulate procedures for pardons and clemency and has thus not implemented the recommendation.

135.   The information supplied indicates that since May 2000 no pardon pleas have been processed, with the government claiming that no legal procedure exists for that purpose and that it has no competence over such requests. Public defenders have used other judicial procedures, such as appeals for review or amparo relief, but they have not lodged pleas for pardon on account of this situation. [28]

136.   The Commission reiterates that it cannot be ruled that the possibility of a clemency petition simply does not exist, because it is required by the applicable international law. [29] The American Convention specifically states that “every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.” [30] International law requires that condemned prisoners are given a last opportunity for their situations to be assessed; the Commission therefore underscores the importance of implementing this recommendation and it notes that the procedure to be put in place must incorporate a minimum of procedural guarantees so that effective use can be made of the right.

VI.              RIGHT TO PERSONAL INTEGRITY

137.   In its Report on Guatemala, the Commission expressed its concern about four key questions regarding the right to personal integrity. The first deals with the vulnerability of the population, a large proportion of which believes that its personal integrity is threatened by violence and common crime. The second relates to the persistence of reports concerning the use of torture or inhumane treatment by agents of the security forces for the purpose of extracting information or “confessions” from detained suspects. The third involves threats to personal security within the prison system. Finally, the fourth area of concern involves the increasing number of threats and attacks perpetrated against members of organizations involved in the promotion and protection of the rights of the populace.

138.   In the Fifth Report, the Commission reiterated the need for the quick and effective investigation, prosecution, and punishment of crimes against personal integrity as the only way to bring them under control.

          Security of Detainees

          139.   With regard to the situation faced by detainees, the Commission offered the State the following recommendations:

1.    Further refine the selection process to screen prospective members of the public security forces, as well as guards and other prison personnel, to ensure that individuals selected have the capacity to respect the law while enforcing it.

2.    Further strengthen training programs for security and prison personnel, to develop an institution-wide knowledge of and respect for human rights norms.

3.    Take the measures necessary to ensure that all detainees are immediately informed of their rights, including to a lawyer and to bring complaints in event of mistreatment, and to ensure that any detention is subject to prompt judicial supervision.

4.    Adopt additional measures of training and oversight to ensure that declarations are not taken by unauthorized nonjudicial personnel, and to ensure that declarations or confessions obtained under duress are not accepted into evidence.

5.    Take the measures necessary to ensure that, while allegations that a State agent subjected a person in custody to torture or inhuman treatment are being investigated, the agent in question is suspended from any duties that would bring him or her into contact with persons in custody.

6.    Ensure that all claims of torture or inhuman treatment are subjected to prompt and effective investigation designed to clarify the facts, identify those responsible, and ensure their prosecution and punishment pursuant to the appropriate processes of domestic law.

140.   The Commission was informed that between mid-2001 and mid-2002, cases of cruel, inhumane, and degrading treatment inflicted by police officers on detainees increased by 128 percent. Specifically, MINUGUA reported that it received 551 complaints of alleged violations of that kind, of which it was able to corroborate 270, most of which were committed by members of the National Civil Police. [31]

141.   The Commission reiterates how urgent it is that the State adopt effective measures to train and oversee its agents, and it emphasizes the need for comprehensive internal controls to ensure that the State’s police officers use force in a legitimate fashion.

142.   In its comments on the follow-up report, the State reported that the PNC Academy has an ingenious system for selecting and evaluating candidates, involving academic, physical, and psychological tests, and that Professional Responsibility Office carries out investigations into mistakes made by police officers, with the application of disciplinary measures depending on the results thereof.

143.   The Commission must also emphasize the need for measures to investigate and, if appropriate, punish those guilty of making abusive use of force or of abusing their authority.

          144.   Since it has received no information from the State about the foregoing recommendations, the Commission repeats them and demands that they be complied with.

          Human Rights Defenders

145.   With specific reference to the protection of human rights defenders, the Commission recommended that the State:

1.     Take further measures to recognize and value the work of human rights defenders and social leaders, including through the development of additional training activities to ensure respect for human rights and human rights defenders among members of the security forces, and the issuance of clear and unequivocal statements by high level officials confirming the legitimacy and importance of the work of human rights defenders and their organizations.

2.     Ensure that appropriate protective measures are made available and effective in cases where personal security is at risk.

3.     Act with redoubled resolve to ensure the investigation, prosecution, and punishment of threats, attacks, and other acts of intimidation against human rights defenders and social leaders.

4.     Consider the establishment of specialized units within the National Civil Police and Public Prosecutor’s Office, with the resources and training required to coordinate efforts and respond with due diligence to this critical problem.

146.   The Guatemalan State informed the Commission that as a part of its protection of human rights defenders, it had created a Special Prosecutors Unit for human rights, responsible for investigating threats and other acts of aggression against rights workers. The Commission applauds this initiative and urges the State to provide the new prosecutor for human rights with all the human, technical, and scientific resources necessary to pursue serious and effective investigations to determine the origin of threats, illegal searches, harassment, and other forms of aggression carried out against human rights defenders.

147.   In its comments on the report, the State told the IACHR that the Interior Ministry had established specialized units for dealing with complaints lodged by human rights defenders, for investigating such cases, and, if so requested, for providing those defenders with protection on a coordinated basis between the units and the PNC.

148.   However, the Commission has been observing, with concern, a clear deterioration in the situation of human rights activists in recent years, including cases in which they have been singled out for the work they do, thus placing them in grave danger. This can be seen in the significant increase in the number of threats, acts of intimidation, illegal searches, and wire taps suffered by activists and the members of their families. The Commission was told that between January and July 2002, some 135 such cases were reported. The IACHR has also been informed about isolated incidents in which human rights defenders have been killed.

149.   The Commission understands that more than 60 percent of these attacks are directed against groups working to reveal the truth and secure justice in the aftermath of the armed conflict. According to reports received by the IACHR, in spite of the State’s replies in the formal arena, in practical terms there has been nothing more than a recognition of patterns in the acts of violence against rights defenders and of the existence of clandestine groups.

150.   In its comments submission, the State described the creation of an interinstitutional group for dealing with threats against human rights workers, made up of the PNC, the Public Prosecution Service, the Secretariat for Strategic Analysis, the Secretariat for Peace, the judiciary, and COPREDEH. The State reported that as a result of that group’s work, a study was carried out that drew up recommendations for State authorities vis-à-vis how exactly to treat threats against activists; these included the creation of an elite force within the National Civil Police responsible for investigating such cases.

151.   The Commission states once again that human rights defenders play a fundamental role in a comprehensive rule of law. The actions of defenders–in defending individuals and groups who fall victim to human rights violations, in publicly denouncing injustices that affect large sectors of society, in the necessary control they exert over public officials and democratic institutions, and in other activities–make them irreplaceable players in constructing a solid and lasting democratic society. When human rights defenders are silenced by intimidation and fear, thousands of people are denied the opportunity of resolving the violations and injustices that affect vast sectors of society.

152.   The Commission believes that impunity, the weakness of the oversight agencies, the mobilization of the PACs, the existence of clandestine groups, and, most particularly, the acts of intimidation against human rights defenders combine to make up a disturbing deterioration in the conditions needed to defend human rights that continues to seriously affect Guatemalan society.

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