VII.            THE RIGHT TO PERSONAL LIBERTY

153.   In its Report on Guatemala, the Commission stated that after the Peace Accords were signed, the problems relating to the right of personal freedom sprang largely from deficiencies in the institutions and systems in place to administer justice. The Commission analyzed the situation of detainees held in the preliminary phases of judicial investigations, particularly at the time of their arrest and during initial detention, and the use of preventive custody.

154.   The Commission finally concluded that the State’s commitment under the peace accords to reform the police and strengthen the administration of justice was still of vital importance as the basis for enhancing respect for the right to liberty. With reference to the National Civil Police, the Commission placed special emphasis on the need to dedicate resources and particular attention to officer recruitment and training, to supervisory mechanisms, and to enforcement measures intended to ensure that officers observe the applicable procedures and the law.

155.   In light of the conclusions it reached, the Commission recommended that the State:

1.    Adopt additional measures of training, oversight, and enforcement to ensure that agents of the National Civil Police follow the procedures established by law in effectuating arrests, and, in particular, to ensure that arrests are only carried out pursuant to judicial order or in legitimate situations of flagrant offenses. In particular, the Commission highlighted the need to strengthen the internal system for monitoring and oversight within the National Civil Police.

2.    Implement and ensure the operability of a centralized registry containing, inter alia, the name of every detainee, the reason for and place of detention, when it was initiated, and the judicial authority that ordered it. This registry must be promptly available to family members of detainees, defense counsel, judges and other pertinent authorities, and other parties with a legitimate interest.

3.    Undertake concerted measures to ensure that any person deprived of liberty is subject to judicial oversight within the six-hour period provided for in the Constitution. As one safeguard, the Commission recommended that additional measures of training, oversight, and enforcement be adopted to ensure that prison authorities do not accept detainees without a judicial order authorizing their detention, as required by law.

4.      Formulate guidelines for officers of the National Civil Police as to when arrest and detention should in the case of lesser offenses be declined in favor of the issuance of a citation to appear in court or similar alternative measures.

5.    Develop training, oversight, and enforcement measures to ensure the use of noncustodial measures in place of preventive detention in accordance with domestic and international norms. In particular, the State should encourage and support specialized training programs for judicial personnel to ensure that preventive detention is applied as an exceptional measure, justified only when the applicable legal standards are met in the individual case.

6.    Devote special attention to establishing systems to ensure the judicial investigation, prosecution and punishment of members of the security forces who violate the law by effectuating illegal and arbitrary arrests.

7.    Establish an oversight mechanism to periodically review the situation of persons in preventive detention, to ensure that criminal proceedings are expedited, and that persons not judged within a reasonable time are released pending the completion of the proceedings.

Training and Supervision in the National Civil Police (PNC)

156.   As regards the Commission’s first recommendation, dealing with the need for improved oversight, MINUGUA’s verification report on the National Civil Police noted that monitoring, supervising, and evaluating police procedures were not engrained into the PNC at the institutional level. [32] As regards the additional training measures, the Commission notes with concern the significant reduction in the budget of the PNC Academy to a total of Q9 million–Q69 million less than the amount requested for its operations. [33] Accordingly, the Commission urges the State to provide the institutional support and resources necessary for the PNC Academy to be able to continue its essential tasks of training new police officers and providing refresher courses and specialized training.

157.   As regards measures to ensure that PNC officers follow the procedures set forth in law in carrying out arrests, statistics from the PNC’s Professional Responsibility Office for the period January to May 2002 indicate that complaints alleging police abuses, irregular procedures, and illegal arrests were lodged in 221 cases. [34] The IICPG told the IACHR that even though these cases are being investigated by the Professional Responsibility Office, to date no members of the National Civil Police had been punished in connection with them.

158.   Given the failure to comply with this recommendation, the Commission reiterates the need for the PNC to follow legal procedures in carrying out arrests and to meet its obligations of giving prior, detailed notice of the reason for the arrest, informing detainees of their constitutional rights, and allowing them to communicate with their families or attorneys.

          Centralized Registry of Arrests

        159.   As regards the second recommendation, the Commission has received information indicating that the Penitentiary System Directorate is currently drawing up a database of detainees. The Commission urges the government to involve the PNC authorities in this effort, along with the other competent bodies, and to provide it with the resources needed for the launch of a single registry of detained persons. In addition to the detainee’s name, the reason for the arrest, the date of the arrest, and the authority that ordered it, the Commission recommends that the registry also include information about detainees’ ethnic origin and mother tongue, with a view toward effectively upholding the right of defense.  

Deadline for Bringing Detainees before the Competent Authorities  

160.   With respect to the third recommendation–measures to ensure that anyone arrested is brought before judicial authorities within a six-hour period–the Commission notes that no progress has been made and, on the contrary, the average delay before detainees are brought out to give their first statements is seven days. [35] The State furnished no information regarding this point.

Alternatives to Detention

161.   In section 4 of Chapter VIII of the Report on Guatemala, in consideration of Guatemalan society’s concerns about increasing common crime and the authorities’ inability to control it, and about the ineffective and disproportionate enforcement of preventive custody in cases of minor offenses, the Commission recommended the adoption of alternative, noncustodial measures, such as citations to appear in court, house arrests, and posting bail.

162.   The State has reported the creation of Criminal Defense Offices in police stations, the purpose of which is to prevent people arrested for minor offenses and misdemeanors from being taken to preventive custody centers, thus attempting to decongest the prison system and to guarantee the rights of those detainees. Since March 2002, the project, which has 120 lawyers distributed around offices in Guatemala City, Villa Nueva, and Mixco, has dealt with 1341 cases, in 555 of which the individuals arrested were not sent to prison. [36]

163.     At the same time, the ICCPG has reported that preventive detentions have been reduced, in that the percentage of people held on a preventive basis was 47 percent in August 2002. [37] However, the duration of preventive custody exceeds the 90 days permissible by law, and in cases involving kidnappings it has lasted for as long as two years. With respect to inordinately long periods of preventive custody, in the Report on Guatemala the Commission warned that it represented a clear breach of the American Convention, violating both the presumption of innocence and due process.

          164.   With regard to the development of training, oversight, and enforcement measures to ensure the use of noncustodial measures in place of preventive detention, the Commission has received information indicating that to date, no such programs exist.

Judicial Oversight of Law Enforcement Officials

165.   As regards the recommendation about measures to ensure the judicial investigation, prosecution, and punishment of members of the security forces who carry out illegal and arbitrary arrests, the Commission applauds the clean-up work carried out by the PNC authorities, whereby a significant number of officers and commanders have been dismissed because of crimes committed; it also encourages the strengthening of the agency’s internal control offices, which should be provided with a set of regulations for processing and punishing officers responsible for disciplinary offenses.

166.   With reference to those officers who carry out illegal arrests and acts of torture, the Commission urges the Guatemalan State and, in particular, the Public Prosecution Service and the judiciary, to meet their obligation of conducting investigations and imposing the applicable penalties.

VIII.    THE SITUATION OF PERSONS DETAINED IN THE GUATEMALAN PENAL SYSTEM

          167.   In its Fifth Report on Guatemala, the Commission said that a properly functioning prison system is a necessary element in guaranteeing citizen security and the proper administration of justice. It also said that prisons must be adequate to contain persons who pose a danger to their communities and to provide the possibility of rehabilitation for those who will reincorporate themselves in society, and it warned that when prisons do not receive the attention and resources they require, their functioning becomes distorted. Instead of providing protection, they become schools for crime and antisocial behavior, leading to recidivism in place of rehabilitation.

          168.   With that in mind, the Commission recommended that the State:

1.     Establish specialized recruitment, screening, and training programs for all personnel assigned to detention facilities, with special attention to those who work in direct contact with inmates.

2.     Improve reception procedures to ensure that every person received in a detention facility is (1) assessed by a competent official to identify those who may be ill, injured, at risk of harming themselves, or otherwise require special attention, to ensure that such persons receive the supervision and treatment required; and (2) screened by medical personnel for infectious diseases to ensure isolation from the general prison population where necessary and access to proper medical treatment.

3.     Establish systems to separate persons in preventive detention from those serving judicially imposed sentences, and to ensure that minors are not detained in adult facilities, even temporarily.

4.     Allocate resources sufficient to ensure that every person held in a detention facility has available: drinking water, sanitary facilities adequate for the maintenance of personal hygiene and health, including access to toilet facilities at all times; appropriate space, light and ventilation; food of sufficient calories and nutrition; and an adequate mattress and bedding.

5.     Improve the systems in place to ensure that: such medical and psychological care as is needed is readily obtainable; every facility is stocked with basic medical supplies, and that, of the personnel on duty at any time, there is someone trained to respond to health emergencies; and, when it is not possible to adequately treat inmates within the detention facility, that procedures are streamlined to ensure prompt access to hospital or other care.

6.     Adopt additional measures to ensure that, in cases where young children are housed in detention centers with a detained parent, their best interests prevail in establishing relevant policies, and that they have access to the nutrition, health and educational services necessary for their proper development.

7.     Take the measures necessary, given that conjugal visits are permissible, to allow these to take place in conditions which are reasonable, and which do not discriminate between inmates in different facilities or between male and female inmates.

8.     Adopt the measures necessary to guarantee non-discrimination in the treatment of inmates to ensure that indigenous persons held in the prison system may communicate with personnel in their own language, and that all inmates may practice their own religious beliefs.

9.     Take additional steps to provide educational and work opportunities to persons in preventive detention, and to prisoners seeking rehabilitation.

10.    Adopt an internal discipline policy which does not permit some inmates to persecute others in the name of “order,” and which ensures equality of treatment among inmates; and ensure that there is a system in place for inmates to complain about problems and abuses within the facilities and for such complaints to be met with effective investigation and disciplinary action.

11.    Further fortify the applicable procedures to ensure that any case involving the injury or death of an inmate is met with swift and effective investigation, prosecution, and punishment.

12.    Establish a permanent, independent oversight mechanism responsible for the periodic inspection of detention facilities.

13.    Devote additional human and material resources to accomplishing the foregoing objectives, with special priority given to increasing the number of guards available to provide security, ameliorating the situation of overcrowding, and to ensuring that the basic human needs of all inmates are met.

Recruitment and Training

169.   With respect to the first recommendation–specialized recruitment, medical screening, and training programs for all personnel assigned to detention facilities–information furnished by the State indicates that during 2001 the School of Prison Studies was established as an educational office attached to the General Directorate of the Penitentiary System. The School provides training at four levels, covering law, human rights, intercultural and multicultural issues, criminology, current national events, prison administration, and prison ethics. Organized by means of a public call for applications, the selection process includes specialized evaluations and the completion of a 12-week introductory course. The sixth generation graduated on April 30, 2002, with 51 new guards.

170.   The Commission commends the progress made in training and selecting prison personnel and, to consolidate this process, it believes the Prison School should be provided with sufficient resources and adequate facilities of its own for training the guards, with enough teaching staff to provide adequate training during the recruiting process. [38]

Prison Reception Procedures

171.   With reference to the second recommendation, the Commission notes that reception procedures at prisons and detention centers are still inadequate. According to the ICCPG’s study into prison conditions in Guatemala, detainees only receive medical care if a proper request is lodged and processed and if they are suffering from a serious illness. The Commission reiterates the need for the penitentiary system to be provided with comprehensive preventive health programs.

172.   In its comments the State pointed out that contrary to the IACHR’s claims, Guatemala’s prisons currently have medical personnel who examine each and every individual entering the facilities and record their findings on a medical record that is attached to the individual’s personal file. The State also reported that the prison system does have preventive health programs, which are carried out regularly and include analyses and oversight of the quality of the food and water supplied, etc.

          Proper Selection of the Prison Population

          173.   The information available indicates that the third recommendation has not been put into practice: of Guatemala’s 16 prison facilities, only three hold convicts serving their sentences; the other centers continue to house both convicts and individuals in preventive custody. Thus, in August 2002, the Zone 18 Preventive Center was holding 100 convicts and 1211 prisoners in preventive custody; at the Cantel Penal Farm there were 657 convicts and 103 preventive detainees; at the High Security Jail, 71 of the prisoners had been convicted and 21 were behind held in preventive custody.

174.   In its comments, the State claims that the Guatemalan prison system keeps individuals in preventive custody separate from those serving sentences handed down by the courts; it is also quite certain that those centers house no underaged children, who are fully identified prior to admission. While the IACHR appreciates the information furnished by the State, it notes that it is general in nature and does not respond to the specific comments made in the previous paragraph.

          Detention Conditions

175.   The Commission notes that the fourth recommendation, intended to ensure adequate detention conditions for prisoners, has not been put into practice. Information supplied by the State indicates that Guatemala has no legal regime governing the treatment of prisoners or the conditions in which convicts serve their sentences. The Commission has been informed that on June 6, 2002, the government sent Congress draft legislation that would stipulate the rights and obligations of the inmates, the administrative agencies, and the penitentiary system organization.

176.   The Commission notes with concern that not only have the resources necessary for ensuring proper sanitation and space not been supplied, but also that the overcrowding inside the country’s prisons is particularly serious. The Commission has received information indicating that as of October 2001, the overpopulation of prison inmates stood at a total of 1,077. The most overpopulated facilities, in order, are the Pavón Fraijanes Model Rehabilitation Farm with 55.56%; the Zone 18 Preventive Center with 51.43%; the Cantel Model Rehabilitation Farm with 46.45%; and the Pavoncito Preventive Center with 41.82%. The overcrowding in most of these prisons is caused by the high percentage of inmates in preventive custody; this year, that percentage stood at 47%. [39]

177.   As regards the fifth recommendation, the Commission has been informed that medical and psychological assistance has not improved and that, on the contrary, the penitentiary system’s human and material resources for covering all the country’s prison facilities are minuscule.

178.   The Commission applauds the government’s legal initiative to provide the penitentiary system with an organic law. It is, however, concerned about the reduction in the penitentiary system’s budget: the available information indicates that during 2002 it was cut back by Q10 million. The Commission believes that full enforcement of the law on the prison regime depends on the resources given to the penitentiary system.

179.   The Commission places particular emphasis on the need for the State to adopt and enforce this law promptly and to provide the prison system with the human and material resources necessary to ensure all inmates decent conditions of detention and due, timely, and comprehensive medical attention.

The Situation Faced by Detainees’ Children

          180.   As regards the sixth recommendation, the Commission has no information about measures adopted to ensure the children of prison inmates access to the nutrition, health, and educational services necessary for their proper development. On the contrary, the available information indicates that at present there are no educational programs or regulations governing their presence inside prisons; only the Female Orientation Center has a community home, which solely caters for newborn children up to one year of age. [40]

181.   In its comments on the report, the State noted that the two centers that allow children to remain with their mothers do have the facilities necessary to provide minors with proper shelter, including the nutritional, medical, and psychological services needed for their optimal development.

Conjugal Visits

182.   With regard to the seventh recommendation–the adoption of measures for guaranteeing discrimination-free conjugal visits–the Commission has been informed that, in particular, women’s access to this right is frequently restricted. The men’s prisons have not set aside sufficient areas for these visits, and there are no regulations to ensure that they are carried out on a nondiscriminatory basis.

183.   The State reported in its comments that the prison system authorities, along with other government agencies, are working on a set of regulations to allow women prisoners to receive conjugal visits. The IACHR commends this initiative to establish rules, and it will observe them as they are issued and implemented.

          Inmates of Indigenous Origin

184.   With reference to the eighth recommendation, the Commission has received information indicating that the prison system has not taken steps to prevent discrimination on ethnic grounds or to allow all inmates to practice their own religious beliefs. The penitentiary system has no concrete information about its inmates broken down by ethnic origin, the language they speak, or their need for translation services. The detention centers still do not have bilingual personnel to guarantee that such inmates can communicate in their own languages with justice officials and defense attorneys.

185.   The State’s comments claim that at no time do the general procedures of the prison system allow for the discriminatory treatment of any person on ethnic, linguistic, gender, or religious grounds. However, the State supplied no specific information with which to assess the situation of indigenous prison inmates.

Education and Work

186.   As regards the ninth recommendation, information submitted by the State indicates that the draft prison regime law submitted by the government to Congress in June 2002 establishes a progressive regime of reeducation and social rehabilitation for prisoners and provides a procedure for remission of sentences through work and/or study. However, the State furnished no information regarding the steps taken to provide inmates with the opportunities for education and work that would promote their rehabilitation.

187.   In its comments the State reported that it had entered into cooperation and support agreements with specialized institutions in order to provide detainees with the reeducation and work facilities necessary to impact their rehabilitation and social readaptation. However, the State provided no information about specific measures adopted toward that goal.

          188.   According to information given to the Commission, the prison system does not have specialized personnel capable of teaching specific training programs inside detention centers. Although 29% of the prison population requires basic literacy training, 34% need to finish primary education, and 22% of them need to finish their secondary schooling, the ICCPG reported that only 33% of 1,261 interviewed inmates were studying. [41]

189.   As regards work opportunities, the Commission received information indicating that there were no comprehensive job training programs with follow-up efforts for the pursuit of paid work in prison. Although most of the centers have training programs and space for workshops, they lack the tools and equipment necessary for pursuing productive activities.

          Internal Discipline and Supervision

190.   Regarding the tenth, eleventh, and twelfth recommendations–dealing with internal discipline and the independent supervision of detention centers–the Commission has received no information from the State about the implementation of a regime for disciplinary policy. On the contrary, it has been told that order and discipline committees continue to exist, which, in most of the prisons, keep order, maintain their own disciplinary rules, and impose punishments.

191.   With reference to strengthening the investigation and punishment of violations of the personal integrity of inmates, the information available indicates that to date no action has been taken against prison guards for incidents in which prisoners have been injured or killed.

192.   Finally, given the lack of an investment budget for adapting and improving detention facilities, the inadequacy of the guard staff, health professionals, and trainers, the Commission insists on the need for the State to devote sufficient human and material resources to overcome prison overcrowding and to ensure inmates adequate conditions of detention.

IX.     THE RIGHT TO FREEDOM OF THOUGHT AND EXPRESSION

          193.   In Chapter IX of its Report, the Commission asked the Special Rapporteur for Freedom of Expression to draw up the chapter on freedom of expression. Based on the conclusions reached by the rapporteur’s office in that chapter, the Commission urged the Guatemalan State to take the following steps:

1.    Immediately adopt measures to put a stop to the threats, attacks and killings perpetrated against journalists and other social commentators who are exercising their right to freedom of expression. Article 1 of the American Convention sets out the obligation of states to respect the rights and freedoms recognized therein and to ensure to all persons under their jurisdiction the free and full exercise thereof. From the obligation to ensure the free and full exercise of the rights and freedoms enshrined in the Convention, it follows that states are obligated to prevent, investigate, and punish violations of the rights recognized in the Convention, to restore any right so violated, and as necessary, to make reparation for damage caused by the violation of human rights. ^[42]

2.    Pursue the draft reforms to the Law on Elections and Political Parties, and concerning access to information and the action of habeas data, which the President has promised to support, while taking into consideration the recommendations and suggestions put forward by representatives of civil society. The bills in question should contain provisions for an independent appeals body so that any exceptions provided for by law can be challenged directly without having to resort to the final judicial instance.

3.     Enact the measures needed to assure that the antitrust provisions of the constitution can be enforced and take progressive steps to ensure minority groups access to the media.

4.    Carry out an in-depth investigation of the possible existence of a de facto monopoly in broadcast television and implement mechanisms that will assure greater plurality in the granting of channels.

5.    Put in place clear rules to avoid conflicts of interest among government officials and the media.

6.    Review the regulations governing the granting of radio and television licenses with the purpose of incorporating democratic criteria guaranteeing equal opportunity.

7.    Carry out awareness and training campaigns dealing with the right of free expression, and continue taking steps toward eliminating all obstacles to the enjoyment of the right of freedom of expression.

          194.   With the assistance of the office of the Special Rapporteur, this chapter will analyze the measures adopted by the Guatemalan government in implementing the recommendations contained in the Report.

          195.   The Commission observes that Guatemala’s freedom of expression situation has not improved significantly since 2001. Problems still exist: continued attacks and threats against journalists, the existence of laws and rules that do not protect freedom of expression, and the absence of measures to ensure a greater plurality of information sources in the country.

Measures to Prevent and Punish Attacks against Individuals Exercising their Right of Free Expression

196.   In June 2001 the State of Guatemala created the Special Prosecutors Unit for Crimes against Journalists and Trade-Unionists, in order to investigate and prevent threats, violent attacks, and killings carried out against investigative journalists. In spite of this Unit’s creation, the Commission is still deeply concerned about the vulnerability of media workers.

197.   According to reports received, on September 5, 2001, the journalist Jorge Mynor Alegría Armendáriz was murdered in front of his home in an attack in which he received six gunshot wounds. [43] Alegría Armendáriz hosted the program Línea Directa, broadcast by Radio Amatique in the town of Puerto Barrios, Izabal. Alegría Armendáriz used his program to denounce cases of corruption, including irregular business deals entered into by the Santos Tomás de Castilla Port Corporation and the shortfall of up to Q480 million faced by the municipality of Puerto Barrios as a result of falsified electricity bills. On several occasions, death threats had been made against this journalist, which he also denounced on his radio show. The day after this killing, another journalist with the same radio station, Enrique Aceituno, presented his resignation after receiving threats against his life. [44]

198.   The Rapporteur’s office was also told that media workers continue to receive threats in connection with their investigative work into corruption cases. In June 2001, the Association of Journalists of Guatemala reported that both the journalist Julio César del Valle of Radio Única’s program Usted tiene la palabra and Marvin Herwing, the director of the Regional Informativo newscast on Radio Novedades in the city of Zacapa, had received intimidating telephone calls. [45] In July 2001, threats were made against the lives of the journalists Juan Carlos Aquino and Marvin Alfredo Herin González of the Regional Informativo news program on Zacapa’s Radio Novedades, [46] and in August 2001, at least four journalists were physically assaulted by police officers. The journalists were covering a street demonstration against tax hikes. [47]

199.   In April 2002 the freelance journalist David Herrera was kidnapped by persons unknown while investigating exhumations from clandestine graves. The journalist escaped from his abductors and was forced to flee the country. [48]

200.   On June 7, 2002, Abner Gouz of the newspaper El Periódico, Rosa María Bolaños of the daily Siglo XXI, Ronaldo Robles and Marielos Monzón of the Emisoras Unidas radio station, and seven members of human rights organizations received death threats. In an anonymous communiqué sent to the headquarters of the organization “Alliance Against Impunity” and to several media newsdesks, a group styling itself “the Real Guatemalans” called them “enemies of the nation” and threatened them with “extermination.” [49]

201.   On July 7, 2002, the Siglo XXI columnist Adrián Zapata received a call at home from someone claiming to be a member of “organized crime” and warning him of his impending murder. [50] In August 2002, the anthropologist Victoria Sandfor from the Catholic University of Amsterdam, Netherlands, and the New York Times journalists David González and Wesley Boxed received death threats from Valentin Chen Gómez, a member of the army’s Kaibil commandos, while conducting on-site research at the ongoing exhumations in Rabinal, Baja Verapaz. The journalists were accompanying the excavation team from the Maya Achí Association for the Integral Development of Victims of Violence (Adivima) at a clandestine burial site in that municipality where more than 600 people were interred after being massacred by the army and paramilitary groups in 1981. [51]

202.   The Commission reminds the Guatemalan government that threats and attacks against journalists are violations of society’s right to receive information freely. The aim of such actions is to intimidate the work of journalists, which has an inhibiting effect on society and prevents the investigation of irregularities in the running of the government and other matters of public interest. The State is responsible for preventing and investigating those actions, and for punishing the perpetrators.

Measures toward Reforming the Laws on Elections and Political Parties and on Information Access and Habeas Data

          203.   The Commission has received no information on measures adopted toward amending the Law on Elections and Political Parties.

          204.   In contrast, according to information supplied, in July 2002 the congressional Legislation Commission issued a favorable ruling on a draft of the Law on Information Access and Habeas Data submitted by the Secretariat for Strategic Analysis (SAE). The bill was given the number 2594 and forwarded to the plenary for discussion. In October 2002, the plenary of Congress adopted the text of the law on its second reading. To come into force, the law must pass its third reading, then have its articles and final language approved, and then sent to the executive for signing. Once signed, it must be published in the Official Journal.

          205.   The Rapporteur’s office points out once again that access to information is of vital importance to the proper functioning of our hemisphere’s democracies. The Rapporteur’s office recommends that the member states adopt the steps necessary to uphold this right, in accordance with international guidelines, by promulgating laws that allow access to information held by the State and enacting complementary rules to regulate that access, and also by promulgating laws that provide people with access to their personal information through habeas data action, with due consideration to the applicable international standards. With reference to these rights, the Special Rapporteur would like to point out that exceptional limitations are only admissible on grounds of official secrecy in cases in which there is a real and imminent threat to national security within the democratic system. Furthermore, the international rules require the existence of independent review bodies to determine whether the constraints imposed on national defense grounds are balanced in accordance with the protection of other rights under international human rights standards, such as society’s right to be informed about matters of public interest.

Compliance with Antitrust Laws and Access to the Media by Minority Groups

          206.   With respect to the existence of a de facto media monopoly, to date no information is available about State efforts to investigate and put an end to this situation. Monopolies are prohibited by Article 130 of the Constitution of the Republic of Guatemala. However, the information received indicates that private monopolies have followed policies aimed at shaping public opinion on behalf of government sectors, thus hindering the work of independent journalism. [52]

Measures to Promote Greater Plurality in Broadcast Television Channel Concessions

207.   The Commission has received no information about any measures aimed at promoting greater plurality in broadcast television channel concessions.

Measures to Avoid Conflicts of Interest among Government Officials and the Media

208.   The Commission has received no information about any measures aimed at preventing conflicts of interest among government officials and the media.

Reviewing the Regulations for Radio and Television Licenses to Incorporate Democratic Criteria

209.   The Rapporteur’s office is aware that on March 23, 2001, the President of Guatemala ordered the Secretariat for Strategic Analysis (SAE) to embark on a study of a series of amendments to the legislation governing radio and television concessions, with a view toward incorporating democratic guidelines and guaranteeing equal opportunity of access thereto within the context of the Peace Accords.

          210.   Likewise, the Rapporteur’s office was informed that on March 7, 2001, a Ministerial Agreement (No. 395-2001) was issued, authorizing the grant, in trust, of a broadcast frequency to the National Association for Communication, Culture, Art, and Development, to share on a free-of-charge basis the authorized broadcast time with municipalities, foundations, legitimate nonprofit associations, and popular community organizations.

211.   In February 2002, the draft Community Broadcasting Law was presented to Congress. This draft recognizes the importance of community radio stations in “promoting national culture, development, and education” in thousands of communities around the country. [53] Given the fundamental role of community radio stations in keeping society informed, one of the goals of the draft legislation is “guaranteeing their exercise, under conditions of equality, of the right of free expression of ideas through the use of radio frequencies for broadcasting.” [54] The draft is still being studied by Congress.

212.   Governmental Agreement 316-2002 was issued in September 2002. In this agreement, the government announced that is was going to award, free of charge, nine regional and national radio frequencies to institutions and associations representing civil society. [55] The Guatemalan Community Communication Council rejected the agreement, believing that it would hinder indigenous peoples’ access to the available radio frequencies and thereby undermining the democratic spirit that should hold sway in the awarding of broadcast channels.

213.   The current government is continuing with the policy of awarding frequencies through auctions. Several civil society groups have claimed that this policy could hinder access to the auctions by popular sectors of society. [56] The auctions had been suspended on a temporary basis from April until August, before being reinstated on August 27, 2002, by the Superintendency of Telecommunications (SIT) with an auction for 13 radio frequencies. [57]  

Awareness-building and Training about the Right of Free Expression

214.   The Commission has received no information about activities intended to raise awareness and provide training about the right of free expression.

215.   With respect to the adoption of measures aimed at removing obstacles to the right of free expression, the Rapporteur’s office notes with satisfaction that on January 23, 2002, the Constitutional Court handed down a provisional ruling of unconstitutionality on the Law on Obligatory Professional Association. In its Decree 72-2001, the Court ruled that obligatory membership applied to all professions with the exception of journalists. It should be recalled that, contrary to the rulings of the Inter-American Court vis-à-vis freedom of expression, on November 30, 2001, the Guatemalan Congress approved the Law on Obligatory Professional Association, which required that in order to exercise the profession, all journalists had to have a university degree and belong to the college of journalists. [58]

216.   In addition, the Special Rapporteur notes his concern regarding the enactment of Law 27-2002 in June 2002. This law amended Article 196 of the Criminal Code, dealing with obscene spectacles and publications. The amendments require that public exhibitions receive prior authorization from the Ministry of Culture and Sport. On July 12, 2002, a group of Guatemalan citizens filed suit with the Constitutional Court of Guatemala, claiming that these provisions were unconstitutional in that they constituted a form of prior censorship. The deadline for deciding this case expired on September 12, 2002, but the suit remains pending. The Special Rapporteur points out that prior censorship is forbidden under Article 13 of the American Convention on Human Rights, except for regulating access to public spectacles by minor children. [59]

          217.   Additionally, the Special Rapporteur is still concerned about the existence of desacato contempt laws and criminal legislation applicable to defamation and libel, which impose criminal sanctions on criticisms leveled at public officials.

218.   Based on the information presented above, the Rapporteur’s office repeats its recommendation that the State of Guatemala conduct a serious, impartial, and effective investigation into the murder of the journalist Jorge Mynor Alegría Armendáriz and punish those responsible, and that it investigate the threats and attacks made against investigative journalists and other media workers, with a view to ensuring the right of free expression and information. Likewise, the Rapporteur’s office calls on the State of Guatemala to adopt vigorous measures against media monopolies, guaranteeing a plurality of information sources and taking steps to guarantee the awarding or renewal of broadcasting licenses in accordance with a clear, fair, and objective procedure that pays due attention to the importance of the media in allowing citizens to participate in the democratic process and in implementing the Peace Accords. In addition, it recommends the enactment of a law on information access and transparency in accordance with applicable international standards and in compliance with the recommendations of Guatemalan civil society. Finally, the Rapporteur’s office urges the State to repeal its desacato laws and to review the criminal legislation applicable to defamation and libel in order to ensure that they are not used to stifle debate on matters of public interest.

X.        THE RIGHT TO POLITICAL PARTICIPATION

219.   In Chapter X of the Report on Guatemala, the Commission noted that the important goal of holding technically free and fair elections was being met, while the substantive goal of inclusive participation in national political life still required the adoption of further measures. The Commission called the State’s attention most particularly to the urgent need to enhance access to voter registration, voter information, and polling stations, especially in the country’s rural areas and among those sectors of the population that remain underrepresented as voters, in accordance with Article 23 of the American Convention.

220.   In connection with the right of all inhabitants to political participation, the Commission recommended that the State:

1.    Adopt the measures necessary to streamline the voter registration process; a necessary step in the process of amplifying voter registration is improving and streamlining the process to obtain personal identification.

2.    Devote particular attention to facilitating the registration of citizens in rural areas and those who have otherwise been marginalized from full participation in the political life of the country, particularly women, the indigenous sector, and illiterate citizens, including through the use of mobile voter registration initiatives.

3.    Facilitate the process by which citizens can update their voter registration information to reflect a change of address, so as to be able to vote in the area where they live.

4.    Promote initiatives designed to ensure that all voters obtain the information they need to make informed political choices, and that attention be given to implementing civic education programs during non-electoral periods with a view to enhancing popular participation in national political life, including through the dissemination of written and oral information prepared in indigenous languages in the corresponding zones of the country.

5.    Take steps to recruit additional electoral personnel with knowledge of indigenous languages, to ensure that indigenous citizens are able to freely and fully exercise their political rights.

6.    Take measures to improve the access of rural voters to polling stations, including through establishing additional polling locations in those areas, and increasing access to transportation on voting day.

7.     Adopt the legislative and other measures necessary to define electoral crimes so that acts which impede the exercise of political rights by the citizenry through free and fair elections are subject to the investigation, prosecution, and punishment required to safeguard those rights.

8.     Adopt the fiscal and other measures necessary to provide the TSE with the resources and support it requires to effectively exercise its vital role in the consolidation of participatory democracy.

Law on Elections and Political Parties

          221.   With respect to the Commission’s recommendations regarding voter registration, updating the electoral roll, civic education programs, and access for rural voters, MINUGUA’s Thirteenth Report on Human Rights in Guatemala describes a series of amendments to the Law on Elections and Political Parties that have been passed by Congress and that will introduce appropriate measures for attaining the Peace Accords’ goal of increasing voter turnout rates and citizen participation in elections. [60] Since the Constitutional Court returned the amended legislation to Congress with objections, the Commission urges Congress to speed up passage of the new electoral regime so it can be applied to the upcoming elections.

Hiring Bilingual Electoral Officers

          222.   The Commission has no information about the hiring of electoral officers with knowledge of indigenous languages.

          Strengthening the Supreme Electoral Tribunal (TSE)

223.   The Commission has received no information from the State about measures intended to provide the TSE with the support and resources it requires. In connection with this, MINUGUA reported that new magistrates, responsible for overseeing the 2003 general election, had been appointed.

224.   The Commission once again emphasizes the need to strengthen the electoral system in order to guarantee voter access to the means of political participation, which is a fundamental component in the quest to consolidate a participatory and democratic system of government in Guatemala.

225.   In the comments it offered on this follow-up report, the Guatemalan State submitted the following information about its compliance with the IACHR’s recommendations regarding the right of political participation:

226.   Understanding the difficulties posed by the amendment of the Law on Elections and Political Parties, the Supreme Electoral Tribunal (hereinafter “TSE”) has twice (once in each tribunal) undertaken a reform of the Law’s regulations in order to better structure the electoral roll and, consequently, be technically able to provide citizens with access to polling stations. In doing this, the TSE has been receiving technical assistance from the OAS ever since the discussions on amending the Electoral Law began.

227.   The TSE has on several occasions stated that the bill currently being debated by Congress is very different from the original proposal submitted following the discussions held under the Peace Accords’ recommendation.

228.   With support from the international community, prior to the finalization of the electoral roll, the TSE will hold voter registration days and organize voter record update efforts throughout the entire country.

229.   The State also reported that the installation of Vote Reception Committees in rural areas was not going to be possible on account of a legal ban, but that there was to be a rationalized distribution of Voting Centers across the country.

230.   In connection with the IACHR’s third recommendation–updating the information on the electoral roll–the State reported on the measures the TSE is to adopt to enable citizens to update their voter records, including decentralizing the information and setting up a geographically based electoral code, which will allow the following: locating citizens geographically; subdividing municipal rolls in accordance with CRE guidelines and the final electoral reform proposal; and assignations.

231.   As regards the IACHR’s sixth recommendation, the State reported that under draft legislation sent to Congress, the TSE has agreed to issue a proposal for decentralizing the Department of Electoral Cartography’s Vote Reception Committees. To achieve this, the Department of Electoral Cartography began designing, with OAS cooperation, the National Plan for Decentralizing Vote Reception Committees, covering all 22 of the country’s departments. It also stated that work had begun on creating mechanisms to facilitate access to voting stations by residents of the country’s most heavily populated municipal headtowns, presenting a proposal to relocate the polling stations in the urban areas.

232.   As another way to combat low voter turnout, in Agreements 390-2001 and 280-2002 the TSE decided to enable citizens to vote in the districts where they actually reside and not where their residency cards had been issued.

233.   With respect to training programs, the State reported that the TSE has a program of permanent training and civic education during nonelectoral periods, placing particular emphasis on women and young people who are not necessarily of voting age. It also institutionalized specific support efforts with a number of universities.

234.   Additionally, the State noted that the TSE had begun to establish rules for electoral propaganda, specifying the actions that can be carried out by political organizations, in order to guarantee more orderly elections.

235.   The Commission commends the detail, seriousness, and illustrative value of the information provided by the State on the question of political rights. It also notes with great satisfaction that through Agreements 390-2001 and 280-2002 and the other measures implemented by the TSE, the State of Guatemala is complying with the IACHR’s recommendations aimed at ensuring that the Guatemalan people can exercise their right to vote.

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