CHAPTER V

FOLLOW-UP OF THE RECOMMENDATIONS FORMULATED BY THE IACHR IN ITS REPORTS ON THE SITUATION OF HUMAN RIGHTS IN MEMBER STATES

INTRODUCTION

1.      The IACHR’s practice of following up on its reports on the human rights situation in member states is aimed at evaluating the measures adopted by the states to comply with the recommendations made by the IACHR in its reports. This practice is based on the functions of the IACHR, the principal organ of the OAS responsible for the protection and promotion of human rights, contemplated in Articles 41(c) and (d) of the American Convention, in concordance with Articles 18(c) and (d) of the Statute and Article 57(h) of the Rules of Procedure of the Commission.

2.      The initiative of evaluating compliance with the recommendations contained in such reports in a separate chapter of the IACHR’s Annual Report dates back to 1998 and the Report on the Situation of Human Rights in Ecuador (1997).  Subsequently, in its 1999 Annual Report, the IACHR included follow-up reports on compliance with its recommendations contained in the reports on Brazil (1997), Mexico (1998), and Colombia (1999).  In its 2002 Annual Report, the IACHR mentioned that the follow-up report on compliance with the recommendations for Fifth Report on the Situation of Human Rights in Guatemala.

3.      The reports included in this Chapter attempt to evaluate the measures taken to comply with the recommendations put forward by the IACHR in its reports on Justice and social inclusion: the challenges of democracy in Guatemala (2003) and Report on the Situation of Human Rights in Venezuela (2003). To that end, the two aforementioned states were asked to provide all the information they considered pertinent, in accordance with the above-mentioned provisions. Apart from the official information received or obtained from sources accessible to the public, the Commission also used documents and reports from global organs for the protection of human rights, as well as information culled from civil society organizations and the media.

FIRST FOLLOW-UP REPORT ON THE COMPLIANCE OF THE STATE OF GUATEMALA WITH THE RECOMMENDATIONS MADE BY THE IACHR IN ITS REPORT ENTITLED

“JUSTICE AND SOCIAL INCLUSION: THE CHALLENGES OF
DEMOCRACY IN GUATEMALA”

I.        INTRODUCTION

4.      On November 12, 2003, the Inter-American Commission on Human Rights (the “Commission” or the “IACHR”) approved the report Justice and Social Inclusion: the Challenges of Democracy in Guatemala (hereinafter “Report on Guatemala”). In this report the Commission, based on information obtained in an on-site visit between March 24 and 29, 2003, presented its observations, conclusions, and recommendations regarding the human rights situation in Guatemala, particularly with respect to the administration of justice and citizen security, as well as the situation of the human rights defenders, of indigenous peoples, women, children, and freedom of expression.

5.      In the understanding that one of the factors affecting the rule of law in Guatemala is the weakness of the administration of justice, the Commission initially focused its attention on the lack of effectiveness of the judiciary, impunity, and the resulting increase of crime and violence due to the lack of adequate state policies.  The Commission also examined the deteriorating situation with respect to citizen security, corruption, and organized crime; the influence exerted by parallel power groups (fuerzas paralelas) on government and their effects, and the violence related to the electoral process.  The Commission understood that this situation has serious repercussions for the work of the human rights defenders and justice operators; for certain sectors of the population of special concern, namely, indigenous peoples, women and children; and for the exercise of freedom of expression.

6.      In its report, the Commission noted, with deep concern, that neither international human rights standards, nor the goals of the Peace Accords have been met by state actions geared to reforming the administration of justice, improving citizen security, demilitarizing the State and society, protecting human rights defenders, justice operators, journalists and other social leaders; promoting equal participation of women in society, granting special protection to children; and permitting ample exercise of freedom of expression.

7.      To assist the State in its efforts and its relations with Guatemalan society aimed at advancing the initiatives undertaken and overcoming the serious challenges and difficulties they face, the Commission made specific recommendations related to each set of issues. The report was presented to President Oscar Berger by the Rapporteur to Guatemala, Commissioner Susana Villarán, during a public ceremony held in the National Palace on March 22, 2004.  During this ceremony, President Berger expressed his willingness to “analyze the recommendations formulated in the report and to devise a national strategy for its effective fulfillment.”[1]  The State’s willingness, appreciated highly by the Commission,[2]  is reiterated in the State’s response, which states that the report constitutes “a serious obligation that must be fulfilled with the efforts and participation of all sectors of society and the State together.”[3]

8.      In addition to the foregoing, the Inter-American Commission on Human Rights noted the following gestures as clear examples of the willingness of the Government of Guatemala to realize a serious and concrete agenda for human rights:  First, President Berger’s statements at the anniversary of the presentation of the Report of the Committee for Historical Clarification on February 25, 2004, when he apologized, on behalf of the Guatemalan State, to victims of the domestic armed conflict, along with the statements directed to the family of Mack Chang during a public ceremony honoring the memory of anthropologist Myrna Mack, on April 22, 2004. 

9.      Second, the Program of Military Modernization that projects a 50% reduction in both the number of troops and the general budget of the Ministry of Defense.  In this sense, the IACHR appreciates the measures taken by the Guatemalan Government for the dismantling of five military zones that comprise six military commandos.

10.  Third, the State of Guatemala acknowledged international responsibility in the cases of the Plan de Sanchez Massacre, the forced disappearance of Marco Antonio Molina Theissen, and the execution of Jorge Carpio Nicolle and others.  The IACHR emphasizes the significance of these acknowledgments as a crucial step of compliance for the dignity the victims and their families, with special connotation in the processes of national reconciliation and reparation for the victims of the armed conflict.  The position adopted by the State in these cases represents concrete actions that lead to the strengthening of the inter-American system on human rights,[4] and positive contribution to the protection of principles that inspire the American Convention on Human Rights, as the Inter-American Court of Human Rights indicated.[5] 

11.  Finally, the Commission regarded as a positive gesture by the Government of President Berger, the donation of the presidential farm Santo Tomas to the project directed to less fortunate, at-risk adolescents and young persons, aimed at encouraging the development of a new citizenry and preventing delinquency with an educational and technical training.[6]

12.  This Follow-up Report analyzes compliance with the recommendations made by the Commission in each chapter of its Report on Guatemala.  The chief concern of the Commission in this exercise is to contribute to the strengthening of a democratic State in Guatemala, the rule of law, and respect for basic human rights.

13.  On December 16, 2004, the Commission requested the State to provide information concerning compliance with the recommendations issued in the Report on Guatemala.  This information was sent by the State on January 14, 2005.  In this communication, the State reiterated to the IACHR “it’s commitment to human rights, and particularly to the strengthening of Justice and Security as fundamental elements for a propitious environment in which all other fundamental rights may also be exercised freely and effectively.”  Furthermore, the State reported that the Presidential Coordinating Commission for Executive Human Rights Policy (COPREDEH), implemented a series of measures to comply with the recommendations issued by different international bodies that supervise human rights, and highlighted the re-establishment of the Permanent Inter-Institutional Forum on Human Rights.[7]  

14.  On January 18, 2005, the IACHR adopted a “Follow-up Report Project” which was forwarded to the States with one month to present their observations.  On February 18, 2005, the State of Guatemala presented their observations to the Project, in which it thanked the Commission for its valuable contribution via the recommendations contained in the report; and acknowledged that there are areas, such as justice and citizen security, in which it is necessary to continue an arduous task in order to achieve tangible results in a country that recently overcame a difficult period of domestic armed conflict.  In addition, the State informed the Commission on the establishment of a committee to expedite the judicial proceedings, in which concrete actions and measures are being proposed to strengthen competence in cases of human rights violations. 

          II.       ADMINISTRATION OF JUSTICE

15.  In the first chapter of its report on Justice and Social Inclusion: the Challenges of Democracy in Guatemala, the Commission refers to the status of the rule of law in Guatemala and to the weaknesses in the administration of justice, which are reflected in generalized impunity and denial of justice. The IACHR concludes that the rule of law and democracy in Guatemala cannot be consolidated as long as there is an inefficient judicial branch that fails to properly investigate the notorious past human rights violations and the current violations, thus allowing impunity free reign.  The Guatemalan system for the administration of justice must ensure effective access to justice for all, in an independent and impartial manner, and continue with modernization and reforms to improve day-to-day administration of justice.

16.  In the report the Commission concludes that, although the institutions that administer justice in Guatemala play a fundamental role, the situation observes shows that the State has not fully complied with its obligations in this matter.  For the majority of Guatemalans, the Judicial Branch has not ensured human rights for the individuals through investigation of complaints and the identification and punishment of those responsible of human rights violations both past and present.  The inability of the Guatemalan State to provide an adequate and efficient administration of justice and independent and impartial justice bars access to justice for Guatemalans. The Commission also concludes that the deterioration of the administration of justice in Guatemala leads to the continuous violation of the individual rights of its citizens and undermines the country’s democratic institutions, an outcome exacerbated by the systemic and structural impunity plaguing the entire justice system in Guatemala.

17.  With a view to contributing to the quest for solutions that will make it possible to reverse the current state of affairs, the Commission made the following recommendations to the State:

1.         To adopt the measures needed to fight the structural impunity that affects the Guatemalan judicial system.  In this connection, it recommends the implementation of measures aimed at preventing the cover-up of authorities being investigated in cases of organized crime and human rights violations. Likewise, to reinforce measures adopted for the purpose of dismissing all those who participated in violations of basic human rights during the armed conflict from public office and from the Armed Forces.

2.         To continue with the process of modernization of the Judiciary through computerization, particularly the progress achieved in the filing of cases and monitoring of records, in order to reduce delays and corruption in the handling of cases.  To complement modernization with other initiatives such as continuing the expansion and remodeling of judicial facilities throughout the country.  In addition, to supplement these measures with those intended to provide the necessary protection, training, resources and legitimacy for justices of the peace, the Centers for the Administration of Justice and the Arbitration Centers created in the provinces, in order to ensure their effectiveness.

3.         To continue with the training initiatives for members of the Judiciary and propose continuous training programs addressing a wider range of issues for larger numbers of participants, and with adequate institutional follow-up.  In particular, to ensure that these training programs contain education on indigenous culture and identity.  In addition, to train public defenders and prosecutors, preparing them for their role in the judicial system.

4.         To bolster efforts to facilitate equal access to justice for all individuals, especially providing interpreters for the indigenous, to protect their right to due judicial guarantees.  In this connection, to adopt the measures and regulations needed to ensure that indigenous communities can apply their communal law in cases in which there is no violation of international law and this application addresses their local needs.

5.         To establish mechanisms for inter-institutional communication, coordination, and collaboration among the various organs for the administration of justice, especially among the Office of the Attorney General, the National Civil Police and the Judiciary, in order to avoid duplication of duties; and to adopt the necessary measures to ensure that those mechanisms are actually used.

6.         To improve the recruitment and training mechanisms of the members of the Criminal Investigation Service of the National Civil Police, and provide them with the necessary material resources to perform their investigative work, strengthening their capability to protect the scene of the crime and the evidence obtained from it. To this end, to establish the immediate and complete cessation of the participation of the Armed Forces in this activity.

7.         To ensure the independence and impartiality of judges and justice operators.  For this purpose, to design mechanisms to avoid internal and external pressures on the judges and justice operators, particularly those who are working on cases related to human rights violations, corruption and narcotics trafficking. In addition, to apply criminal and disciplinary sanctions to the justice operators who commit acts of corruption; to those who exert unlawful pressure in order to obtain favorable decisions in legal cases filed; and to the members of other State and civil society organizations who unlawfully interfere with the administration of justice in favor of vested interests.  In addition, to take steps to prevent these events occurring again.

8.         To investigate complaints of threats and attacks against judges and justice operators, punish those responsible, and provide adequate protection so that judges and justice operators can carry out their duties without fear of reprisals.  To ensure proper and transparent application of the Judicial Career Act and to encourage a coherent and effective application of disciplinary measures and of procedures regarding promotion and removal of judges. To correctly apply legally established policies for the Office of the Public Defender (Instituto de Defensa Penal) and the Office of the Attorney General, with respect to recruitment, removal, and promotion. To adopt the legislative and constitutional measures necessary to increase judges’ five years tenure, to an extent compatible with the principle of judicial independence.

9.         To increase the budget assigned to the Judiciary, to the Office of the Public Defender and the Office of the Attorney General, to ensure the viability of a judicial system in accordance with international standards and the Peace Accords.

10.       To assign more funds to the Office of the Public Defender and to train public defenders and prosecutors so that they can fulfill their role in the local judicial system.

11.       To avoid baseless processing of appeals and motions that lead to an obstruction of justice.  For this purpose, to ensure that judges properly evaluate the requirements for the admissibility of appeals and motions, respect the time limits established for their processing, and verify that the appeals and motions have not been filed on the same legal basis and/or the same factual basis as appeals and motions previously decided.  In addition, to apply the appropriate penalties to those judiciary officers who improperly process such motions aimed at obstructing justice and achieving impunity.

12.       To allow the access of justice operators to the information held by the State necessary for the processing of cases under their jurisdiction. In this connection, to adopt measures prohibiting state agencies from alleging the existence of a state secret, except in those cases in which it is truly necessary for the protection of national security.

13.       To clarify human rights violations committed in the past that remain unpunished, punish those responsible and, compensate the victims.

18.  With respect to the measures necessary to fight impunity, in its final report on human rights, the United Nations Mission for Verification in Guatemala (MINUGUA) concluded that, despite efforts to strengthen the administration of justice, impunity continues to constitute a systematic and transversal phenomenon that affects both past events and current crimes which, in its judgment, evidences that “the results obtained are not proportional to the investment made.” [8]

19.  While the Commission shares MINUGUA’s opinion with respect to the struggle against impunity associated with past and present human rights violations, it also regards it crucially important to highlight the efforts made by the State and in particular by the Judiciary both in the modernization and training processes.  Efforts, that in accordance with the State’s reply, respond to the purpose of the Judiciary to offer greater access to justice, by projects, infrastructure and programs that benefit the entire Guatemalan population.

20.  According to the its 1999 – 2004 Report, published by the Judiciary at the end of 2004, achievements related to modernization include the rehabilitation of judicial facilities across the entire national territory, providing the judges with renovated infrastructure and adequate tools for the administration of justice.  In addition, access to justice was increased through mobile courts, using mediation as an alternative method of settling disputes.  High-profile courts have been established, to bolster the fight against organized crime and against crimes with serious social consequences.

21.  Likewise, other accomplishments include the construction of 36 offices for Justices of the Peace, 4 Centers for the Administration of Justice (CAJ), 4 judicial complexes, the acquisition and remodeling of the Torre de Marfil building to which most Chambers of the Court of Appeals of the Capital have moved; the acquisition and remodeling of the Edificio Jade to provide adequate infrastructure to the units that were operating in precarious conditions, such as: General Archive of Notary Records, the Judicial Career Council, Human Resources Management, Unit on the Absence of a Criminal Record and the Unit of Alternative Conflict Resolution; the renting and remodeling of the building on 23^rd Street to provide adequate facilities for the 10^th (Criminal) Justice of the Peace, the Secretariat of Planning and Institutional Development, the Legal Department and the UNICEF and UNDP criminal justice projects. The Courts of different jurisdictions and levels of authority of the Torre de Tribunales were remodeled, as were the Courts for Children and Adolescents in Conflict with Criminal Law in the provinces, the building of the Court of Appeals for Children and Adolescents, and the capital courts; and 47 properties donated by municipalities in the provinces were legalized.

22.  In addition, with its Decision (Acuerdo) 10-2002, the Supreme Court created proper facilities for the safeguarding of special testimony and other notarized documents; it also created regional offices for the General Archive of Notary Records: the Huehuetenango Department Office (Decision 8-2003), Chiquimula Regional Office (Decision 40-2003); Alta Verapaz Department  Office (Decision 2.2004) and Quetzaltenango Regional Office (Decision 16-2004).

23.  With respect to the decentralization and deconcentration of activities, the Centers for Criminal Management were created in Zacapa, Santa Cruz del Quinché, Escuintla, Petén, Chimaltenango, Baja Verapaz and Villa Nueva. A total of 28 Mediation Centers were also created in the entire Republic (9 in Quetzaltenango, 6 in Petén, 5 in Alta Verapz, 2 in Escuintla, 2 in the Quinché and 1 in Izabal, as well as in Huehuetenango, Chiquimula and San Marcos, respectively).  With the World Bank’s support, two Mobile Justice of the Peace offices were created in Guatemala and Quetzaltenango to acquire experience with a new type of traveling justice.

24.  Regarding judicial infrastructure, the Maintenance Unit of the Judiciary had 36 Justice of the Peace offices built in the whole country, using its own resources; six Centers for the Administration of Justice in the provinces were built by the Unit for Modernization, namely: Santa Eulalia, Huehuetenango; Playa Grande and Nebaj, Quiché; Poptún; Ixchiguán, San Marcos; and Santiago Atitlán, Sololá.  Likewise, the Unit for Modernization built four judicial complexes built in the department capitals of Huehuetenango, Chiquimula, Quetzaltenango and in the Municipality of San Benito, Petén. Also, 13 offices for Justices of the Peace were built and remodeled with the support of the Program for the Strengthening of the Rule of Law (PROFED) and with resources from the UNDP, through projects GUA/00/010 and GUA/98/034.[9]

25.  According to information published by the Judiciary, the enactment of a specific law governing judicial careers and implementation of the Law on Serving in the Judiciary considerably strengthened the judicial career. These two laws prompted an intense, periodic and ongoing training program, with the School of Judicial Studies conducting both national and international training programs.  Specifically, 609 Training Programs were carried out, 360 of them in the capital and 240 in the provinces. They were directed at all Judiciary employees, including Justices, judges, judiciary assistants, and administrative staff. There were also continuous education courses, attended by 9,221 participants, including all the judges in Guatemala. Internet-based workshops and seminars to provide constant, ongoing training for justices, judges, and judicial assistants also got under way.

26.  The national training programs, which received cooperation from other agencies, achieved the training of 6,853 Judiciary Assistants.  Likewise, 3,639 Judiciary Assistants and personnel applicants were evaluated using a technical and legal test.  For administrative personnel currently in service, 143 training programs were carried out, with a total of 4,627 participants.  Likewise, 8,377 men and 6,595 women were trained in different courses, 21 Master’s programs were supported for judges in service, and security personnel were also trained.

27.  Among the topics addressed in the training courses, the following may be highlighted:  Orality in Judicial Procedures, Mediation and Conciliation, Judicial Ethics, Conflict Resolution, Interculturality, Multiculturality, Legal Pluralism, Application of Convention 169, etc.  Regarding this last point, that is the Application of Convention 169, it is important to note that a diploma in Indigenous Law was established.

28.  With respect to the establishment of an indigenous law, the Commission notes that the administration of justice reaching the indigenous villages and communities is by no means commensurate with their share of the population.  Regarding the education of bilingual judges and court interpreters, it is ongoing and at this time remains insufficient: there are only 571 employees, including justice operators and administrative personnel, who speak Spanish and more than one Maya language, located in courts in 21 of the country’s departments; among the personnel that speak Maya languages, there are 98 judges, 3,223 judicial assistants, 43 interpreters and 86 bilingual administrative personnel.

29.  As for the establishment of mechanisms for inter-institutional communication, coordination, and collaboration among the organs charged with the investigation and trying of crimes, the Commission recognizes, as a positive step, the value of the agreement between the Attorney General and the Ministry of the Interior, signed on June 25, 2004.  The goal of the agreement is precisely to improve the coordination between the Office of the Attorney General (MP) and the National Civil Police (PNC) to ensure that criminal investigations guarantee efficient prosecution of crime that is objective, modern, agile, and scientific.  In particular, in order to place on record each party’s legal duties and obligations, the agreement stipulates the procedures that must be followed in the investigation of criminal acts.

30.  Regarding inter-institutional cooperation specifically, the agreement provides for periodic coordination meetings between the Office of the Attorney General and the National Civil Police, as well as meetings to evaluate the execution of the coordination plan, with a view to making any necessary adjustments.  It also determines that each institution should designate a high ranking officer to evaluate the effectiveness and continuity of the Inter-institutional Coordination Project.

31.  The Commission expects to receive information on the way in which the agreement on coordination has been implemented, as well as on the results obtained in criminal investigations.

32.  Regarding the increase in the budget assigned to the Judiciary, the Office of the Public Defender, and the Office of the Attorney General, which was recommended by the IACHR to ensure the viability of implementing a judicial system compatible with international standards and the Peace Accords, the information received is discouraging.

33.  With respect to the Office of the Attorney General, the Commission received information according to which the budget assigned in 2004, already insufficient, was increased only by two million quetzales for 2005.  According to the information provided by the Attorney General’s Office, whereas the operating budget for 2004 totaled 398 million quetzales, the budget approved for 2005 is 400 million, of which 80% (320 million) are allocated to salaries and the remaining 20% to general office and equipment maintenance.  The Office of the Attorney General indicated to the IACHR that given the operating needs of the institution, it is compelled to request an additional budget allocation of at least 200 million quetzales to cover operations during 2005 and to increase their scope.

34.  The budget approved for the Judiciary for 2005 corresponds to 50% of the amount it requested to ensure that it can operate effectively.  According to information received by the IACHR, despite the fact that it presented a budget proposal for 2005 of one million 300 thousand quetzales, it was only allocated the amount of 622 million quetzales. It should be noted that part of the Judiciary’s operating budget is met by funds from specific projects.

35.  With respect to the Office of the Public Defender, the Commission learned that notwithstanding the financial crisis mentioned in the report on Justice and Social Inclusion, the budget assigned for 2005 exceeded 2004’s meager budget of 60 million by only 8 million quetzales.

36.  Finally, regarding the baseless processing of appeals and motions that tend to obstruct the administration of justice, the Commission has learned that this practice continues.

          II.       CITIZEN SECURITY

37.  In the chapter on citizen security, the Commission warns that violence and crime seriously undermine the rule of law.  In recent years there has been continuous violation of the basic rights of individuals through an alarming number of violent acts and as a result of the public insecurity prevailing in the country, which has been aggravated in the context of the first round of the general elections that took place on November 9, 2003.  The Commission’s report reflects the violent events that occurred in Guatemala City on July 24 and 25, 2003.  The Commission concludes in the report that the level of aggression and violence unleashed by the demonstrators at various points throughout the city, directly threatening public security, considered together with the lack of police intervention, made Guatemalan society feel totally defenseless.

38.  With a view to making a contribution to the development of a comprehensive state policy for fighting crime and increasing citizen security, the Commission made the following recommendations to the Guatemalan State:

1.         Formulate preventive and coherent state policies that study the structural causes of violence and the high levels of crime and are directed toward fighting them.

2.         Increase the budget allocation for the National Civil Police, as the institution in charge of domestic security, and maintain the budgetary levels assigned to the Armed Forces by the Peace Accords.  Increase the material and human resources assigned to the National Civil Police in order to increase the quantity of police personnel, infrastructure, and provision of vehicles, arms, munitions and transmissions of the National Civil Police.  Continue with the training of the police forces, in order to augment the number of officers trained and to improve the content of the courses.

3.         Step up efforts to investigate and punish human rights violations committed by state agents and, consequently, dismiss from their positions all those who have participated in these acts, and prohibit their rehiring by the public safety forces, as well as their access to any other public employment. To this end, the work performed by the Office for Professional Responsibility should be encouraged, but preventive policies are also needed in order to avoid a repetition of these violations.  External and internal control mechanisms must be established to ensure and complement the proper performance of the National Civil Police.

4.         Redouble efforts to create a multiethnic and pluricultural police force, particularly through greater participation of indigenous peoples and women.

5.         Cease direct and indirect interference by the Armed Forces in the domestic security of the country, and limit budgetary allocations and the functions of the Armed Forces to matters related to national defense.  Immediately eliminate Armed Forces’ interference in intelligence matters, and provide the necessary means so that civil intelligence may count on the necessary resources to perform the tasks that were formerly in the hands of military intelligence.  Approve the new Military Code, bearing in mind the need to modify military criminal justice so that it will be limited to trying crimes committed in the exercise of military functions, without including human rights violations or matters that must be dealt with under civil jurisdiction.

6.         Improve the training of the members of the Armed Forces in the subject of human rights, and implement still incipient initiatives on sanction mechanisms and removal of members involved in human rights violations in the performance of their duties. Remove from the Armed Forces all those persons that participated in human rights violations during the armed conflict. Provide the Secretariat of Administrative and Security Matters with the necessary resources to carry out its mandate.

7.         Establish a comprehensive policy to combat lynching, bearing in mind its causes, where lynching is committed, and the opinions of the population in the places where it occurs.  This policy should include greater state presence in the provinces and training of the National Civil Police in preventive policies.  In addition, however, it should include a swift, coordinated, and inter-institutional response to this practice.  Likewise, it should be implemented on a continuous basis, after a rapprochement between the authorities and the community, by officers familiar with the local language and setting, and with the collaboration of local authorities.  Ensure that reported lynchings do not go unpunished, by, for example, exercising greater control over investigations and police implementation of court orders.

8.         Lend the greatest possible assistance to the investigations to be conducted by the Commission for the Investigation of Illegal Groups and Clandestine Security Organizations, created within the framework of the political accord signed on March 13, 2003, and use the findings of those investigations for the eradication of these illegal organs.  At the same time, continue with the judicial investigations of the alleged human rights violations committed by these illegal organs, in order to punish those responsible.

9.         Effectively avoid the resurgence and reorganization of the Civil Self-Defense Patrols (PAC’s) or Voluntary Civil Defense Committees and adopt measures to prevent the participation of government officials in the reorganization of the ex-PAC’s.

39.  With respect to public policy on studying the structural causes of violence and the high incidence of crime, the Commission has been informed that current policies do not include the study of the structural causes of violence and the levels of crime.  On the contrary, the Commission has perceived that, except for isolated efforts, the trend in existing public policies is to deal with the issue of citizen security through repressive and punitive state institutions, and from a preventive standpoint.  In this sense, specialized organizations deem that the actions of the Executive Branch seek a temporary impact that generally does not have the capacity to ensure their sustainability. [10]

40.  The Commission has learned that in the second week of January, 2005, the Government of Guatemala presented a plan to combat violence which, according to the media, seeks to promote community support, set up a system of civil intelligence, improve the equipment of the National Civil Police and improve the coordination of this institution with other security organs, through the Operating Security Cabinet chaired by the President of the Republic.  Among these measures, the Government proposes to replace foot patrols that combine police and army forces, with a high-mobility plan, as well as to reconstitute and equip specialized groups of the National Civil Police, which include anti-riot, intervention and anti-narcotics forces.  With respect to some of these measures, the organization SEDEM warned that through the institutionalization of citizen vigilance programs, such as night watchmen services, there was a risk of transferring to the citizenry the state responsibility for guaranteeing safety. [11]

41.  In the report Justice and Social Inclusion, the Commission records the creation of the Security Advisory Council (CAS) by Government Accord number 48-2003, of February 26, 2003, whose purpose is to study and propose strategies to respond to major risks that the country is facing and make the relevant recommendations to the President of the Republic. During her visit to Guatemala in September 2005, the Special Rapporteur on the Rights of Women, Commissioner Susana Villarán, met with members of the CAS, who identified as their main challenge the reform of this sector by promoting the transition from an authoritarian paradigm to a comprehensive security model for democracy, oriented towards prevention.[12] The Commission values the establishment of the CAS as an important state initiative for the design of a democratic security policy.  Therefore, the IACHR urges the Guatemalan State to provide this Council with the necessary resources to fulfill its duties and to induce the relevant authorities to listen to its suggestions and concerns.

42.  During visits to different units of this institution in 2004, the Commission observed the lack of personnel resources, infrastructure, and equipment needed to carry out the National Civil Police’s task of prevention and investigation of crime.  In this connection, it appreciates the strengthening of the analysis section of the Office of the Director of the National Police, which is essential for the adequate production, systematization, and analysis of crucial information for the design of public security policies, as well as for the success of investigations.  With regard to the expansion of the budget of NCP, the State reported that during the legislative sessions of 2004, Congress increased the budget of the Ministry of Governance and the NCP, thereby allowing it to acquire, with international cooperation, logistical equipment for a greater enhancement of work.  In its response, the State did not indicate the amount given to each institution.

43.  With regard to the training of members of the national police, the State reported that it had developed an instruction program for new agents of the NPC, that emphasizes the decentralization of admissible evidence, 11 month proceedings, the increase of scholastic grants to 800 quetzales, review process on the part of the Entities of Re-verification of Precedents, as well as the expectation of a diversified academic approval to be admitted into the institution.

44.  Regarding efforts to investigate and punish human rights violations committed by state agents, MINUGUA stated in its final report that there are still manifest shortcomings in the institutions charged with the investigation, prosecution, and punishment of crime and the observance of judicial guarantees, such as the National Civil Police, the Judiciary, and the Office of the Public Prosecutor.[13]  As a result, both past and current human rights violations are pending investigation.  In this connection, the Commission has received information to the effect that, in cases of complaints against state agents, the agents are either dismissed, or the agents, officers, and heads of police stations involved are relocated, without being investigated and tried in court.[14]

45.  With respect to internal control mechanisms, there are disciplinary regulations which have been circulated among police agents, but the Commission lacks information regarding their application.  However, the Commission has received information about the existence of local arrangements for overseeing the PNC’s performance, with the participation of social organizations, e.g. in the Department of Quezaltenango.  The Commission believes that this type of model aimed at ensuring transparency in public administration should be promoted nation-wide.

46.  As for efforts to achieve a multiethnic and pluricultural police force, the Commission has been observing the valuable work being done by the Offices of Gender Equity and Treatment of Victims within the National Civil Police, in particular in cases of violence against women.  The Commission believes that the operational capacity of these protection facilities depends largely on their acknowledgement by the officer corps and, particularly, on their capacity to influence the design of institutional policies.

47.  As regards direct and indirect interference of the Armed Forces in Guatemalan domestic security, the Commission concludes from public statements by civil authorities, as well as from information they provided directly to the Commission, the National Civil Police is clearly operationally dependent on the Army.  Both the Vice-president of the Republic and the Minister of Defense explained to the IACHR that in operations against narcotics trafficking as well as in maintaining civic order, military detachments provide perimeter support to the National Police. [15]  Although the Commission is aware of the precariousness of the resources at the disposal of the National Civil Police, it reiterates that the participation of the Armed Forces in the control of public security exceeds the mission assigned to it by the Peace Accords, and prevents the consolidation and strengthening of civil authorities. For this reason, the Commission notes with interest that one of the components of the plan against violence presented to public opinion by President Oscar Berger on January 10, 2005 includes the improvement of equipment and operational capabilities of the National Police. In this connection, it is not clear whether the high mobility plan referred to earlier is directed only towards the police or if it also includes the military.

48.  Regarding the strengthening of civil intelligence, the Guatemalan government advised that a crucial component of an all-out effort to eradicate violence is an adequate legislative framework, and that it awaits congressional approval of laws regarding management of civil intelligence, arms registration, the penitentiary system and private police.[16]  Regarding the bill on civil intelligence, the organization SEDEM has expressed its reservations to the IACHR about the lack of clarity regarding the assigning of agencies to the sector; the apparent lack of judicial control over invasions of privacy; and the lack of a law to regulate the working of a police agency in charge of criminal investigation, a lacuna that facilitates the constant involvement of military intelligence in criminal investigations.[17]

49.  With respect to the Military Code, the Commission was told that the Ministry of Defense had proposed a Code of Military Procedure containing articles that lean toward the creation of a Military Prosecutor, who would investigate crimes both military and civil.  Civil society organizations warn that passing this bill entails a risk of re-establishing a military jurisdiction, which was eliminated by the current Code of Criminal Procedure.[18]

50.  Regarding the dismissal and punishment of members involved in human rights violations, although the Commission for Historical Clarification (CEH) [called for the setting up of - Rev. Spanish original incomplete] an administrative clean-up committee (Comisión de depuración administrativa), the Commission has no information on state initiatives undertaken to comply with this recommendation.

51.  With respect to the establishment of the Commission for the Investigation of Illegal Groups and Clandestine Security Organizations (CICIACS), in its final activities report MINUGUA wrote that although on January 7, 2004 the Government of Guatemala signed an Accord with the United Nations for the Establishment of said Commission for the Investigation of Illegal Groups and Clandestine Security Organizations, it is not yet up and running. Among other factors of a political nature, this is due to the Constitutional Court’s decision that the bill regarding the creation of CICIACS was unconstitutional.  In any case, MINUGUA highlights the Guatemalan Government’s declared will to continue seeking formulas to adjust the CICIACS proposal to the advisory opinion of the Court, although it also says, for the record, that there is a lack of concrete actions in this connection.[19]

52.  According to the information received by the Commission, because of the Constitutional Court’s decision, the Executive withdrew from Congress its proposal for ratification of the accord and in November presented a proposal focused on fighting organized crime.  However, it appears not to acknowledge the existence of illegal bodies and clandestine security units (CIACS) nor their connection with human rights violations and the persecution of defenders.  In this respect it is important to highlight that in its final report, MINUGUA states for the record that during its years of verifying complaints about human rights violations, it obtained information revealing the existence and actions of clandestine bodies. The United Nations Mission in Guatemala concluded that “the confirmation of the existence and workings of these illegal groups was in contrast with the practically nonexistent measures on the part of authorities to fight them.”

53.  The ties of the illegal bodies with narcotics trafficking, kidnapping, contraband, major robberies, and, in particular, with attacks and threats against prominent sectors of society, such as human rights defenders, as well as the structural weakness of the Guatemalan system of administration of justice, demand that the State as a whole strive to seek formulas that will allow to get the CICIACS started, within the framework of Guatemalan legislation and in coordination with the Office of the Attorney General.

54.  With respect to the measures designed to prevent the reorganization of the Civil Self-Defense Patrols, the Commission has observed with concern the threats made by former Patrol leaders against human rights organizations that have publicly expressed their opposition to payment for services rendered that they have been negotiating with the National Government.  The Commission understands that these threats have also been extended to the Human Rights Ombudsman and the Constitutional Court.