1.       On December 29, 1996, the people of the Republic of Guatemala (hereafter the State or Guatemala) celebrated the signing of the Final Peace Accord between the Government and the Guatemalan National Revolutionary Unity (URNG) that brought to a close 36 years of armed conflict.  The cost of the conflict, in terms of human suffering, is difficult to describe or quantify.  Approximately 150,000 Guatemalan lives were claimed, many were injured or disabled, and thousands were displaced or sought refuge abroad.  The signing of the final accord was a historic moment for Guatemala and the region.


          2.       The IACHR has closely followed developments in Guatemala for many years, and regularly reported on gross and systematic human rights violations during the period of the armed conflict.  Recognizing that the signing of the peace accords presents new opportunities for Guatemala, and has initiated a process of transformation, the Commission presents this report under its criteria of reporting on countries in a situation of transition.




          3.       President Alvaro Arzú (National Advancement Party, PAN) took office on January 14, 1996, pursuant to an election process that was deemed by observers, including the OAS Observer Mission, to have been free and fair overall.[1]  24 parties participated in the campaigning.  A coalition of grassroots and civil sector organizations, the New Guatemalan Democratic Front (FDNG), some of whose members had previously promoted abstention from the political process, actively campaigned in the 1996 elections, and six of its candidates were elected as deputies.


          4.       The election was carried out largely in accordance with applicable norms, but was marred by isolated incidents of violence that may have been related to or exacerbated by the electoral process.  During late 1995, several candidates for office were murdered, including a candidate for Congress in Moyuta, Jutiapa, for mayor in La Democracia, Huehuetenango, and for mayor in San Lucas Tolimán, Sololá, as well as two activists campaigning in San Jeronimo, Baja Verapaz, and a senior political party leader in El Petén.  Other reported incidents included the attempted kidnapping of a mayoral candidate in Momostenango, Totonicapán, and an attack on the home of the mayor of Chiquimula.


          5.       Approximately 47% of registered voters participated in the first round of voting, and 37% in the second.  Voter registration was low, as was the participation of those voters who did register.  Access to polling locations was impeded for some voters living in remote areas, who had no means to travel to polling stations.  These voters also experienced difficulties in registering, because Guatemalan law limits the location of voter registration offices to municipal capitals.  Further, the registration process has been described as unnecessarily cumbersome.[2]


          6.       Just weeks after his inauguration, President Arzú decided to cease all counterinsurgency actions, and the URNG indicated that it would cease attacks against government targets.  On May 6, 1996, the Government and the URNG signed the accord on the socioeconomic and agrarian situation which commits the Government to take steps to improve the situation of the poorest and most marginalized sectors of national society.  It includes provisions concerning social development, education, health, housing and workers' rights, women's rights, land, tax policies and rural development. 


          7.       Prior to the signing of the final accord, the Government and the URNG signed accords on the role of the Army, a definitive cease fire, constitutional reforms and the electoral regime, the reincorporation of the URNG, and the implementation and verification of the peace accords.  Pursuant to a January 20, 1997 resolution of the Security Council, Guatemala will be able to count on the assistance of international military observers provided under the auspices of the UN with respect to compliance with certain accords.  155 military observers have been dispatched to various locations throughout Guatemala for three months to verify the definitive cease-fire agreement, the separation of forces, and the disarming and demobilization of the combatants of the URNG.   


          8.       In accordance with its ongoing role of monitoring compliance with certain accords, MINUGUA continued to verify and report on the situation of human rights during 1996.  MINUGUA has played a role of unique importance since its establishment in November of 1994, pursuant to the signing of the Government-URNG global accord on human rights.  Its work verifying compliance with that accord and the relevant portions of the accord on the identity and rights of indigenous peoples is credited with contributing to the opening of a new political space in Guatemala, and its presence throughout the country, as well as its investigation of and reporting on human rights violations, have encouraged and supported advances in the human rights situation. 


            The Dissolution of the PACs and Reforms within the Security Forces


          9.       Following the initiative of then-President de Leon Carpio to decommission approximately 25,000 military Commissioners in September of 1995, in September of 1996, President Arzú took the critical step of disbanding the Civil Defense Patrols, later titled Voluntary Civil Defense Committees (PACs or CVDCs), estimated to have numbered over 500,000 at the height of their activity. 


          10.     As the IACHR and a range of national and international organizations have reported, the military commissioners and PACs created, organized and directed by the armed forces committed many serious human rights violations.  The Ombudsman for Human Rights has consistently investigated and reported on violations by the PACs, and twice issued resolutions requesting that the National Congress disband them.[3] 


          11.     Although these units were purportedly required to consist of volunteers, in fact, many members were forced to participate in patrols.  Those who refused, and community members who opposed the patrols were subjected to threats, attacks and, in a number of cases, murder.  While certain PAC members and military commissioners were known in their communities to have committed serious violations, they were almost always able to act with impunity.  During 1996, the IACHR opened Case 11.677, which deals with allegations that former PAC members had persecuted Diego Velásquez Soc and Matías Velásquez, and then killed them on May 24, 1996.  The IACHR is continuing to process a substantial number of other cases dealing with alleged human rights violations by PAC members. 


          12.     The steps taken by the Executive to disband and disarm the PACs are of great significance, and the IACHR values them in light of its consistent recommendations in favor of their dissolution.[4]  MINUGUA reported in this regard that the number of denunciations attributed to members of the PACs "had declined in an important way."[5]  As the Ombudsman for Human Rights has repeatedly cautioned, however, verification of the dissolution and disarmament is essential.  Early reports indicate that some of the disbanded PACs have yet to be disarmed, and that in some communities, similar successor groups are being formed.  During the first semester of 1996, MINUGUA reported that:


          The emergence of various civilian organizations that carry out surveillance patrols, establish curfews and make arrests has also been observed.  Such groups exist, for example, in Comitancillo, San Marcos; in villages in Alta Verapaz; in Samayac and San Lorenzo, Suchitepéquez; and in Santiago Atitlán and San Lucas Tolimán, Sololá.  Verification has shown that whatever their names and purported goals, these are armed groups which take upon themselves tasks which properly belong to the police force, and their activities, tolerated, influenced or controlled by State officials, adversely affect individual rights.[6]


The IACHR is also concerned about the number of firearms in circulation, the prevalence of private armed security guards or groups, and the lack of mechanisms to monitor and control either. 


          13.     During 1996, the Arzú Administration took important and promising steps to begin purging the armed forces and police of tainted members.  A number of Army generals and colonels were dismissed.  Similarly, a significant number of policemen were fired in connection with alleged corruption and human rights violations.[7]  During the first half of 1996, MINUGUA reported that 113 members of the National Police and 25 members of the Treasury Police had been dismissed, and that more than 100 officers implicated in the commission of crimes had been committed to stand for trial.[8]  


          14.     For its part, the Congress of Guatemala acted to reform the Military Code, thereby making it inapplicable to members of the armed forces implicated in connection with ordinary offenses.  The Commission values this important step to curb the power of military tribunals and ensure that crimes perpetrated by military personnel falling within the criminal code shall be subject to the jurisdiction of the ordinary courts, which is consistent with its recommendations on this subject.  The jurisprudence of the IACHR confirms that human rights violations, in particular, properly fall within the criminal code and the jurisdiction of the ordinary courts.  This reform thus represents a necessary and significant advance.  It was reported that a number of cases involving military officers were transferred to the civilian courts in 1996.


          15.     However, reports indicate that the armed forces continue to play a significant role in anti-crime activities which properly pertain to the police.[9]  The Commission has consistently expressed concern with respect to the use of members of the armed forces to fight crime, which means deploying troops trained for combat in situations requiring personnel trained for law enforcement.  Additionally, while the police are trained to interact with and assist civilians, armed forces are trained to fight a designated enemy.  Moreover, the use of military personnel, who serve under the authority of the Executive, to carry out activities related to the investigation of crimes raises concern with respect to the critical need for independence in judicial investigations.  In its Sixth Report, MINUGUA indicated that, in some cases, the involvement of military personnel in the investigation of criminal cases involving fellow members had the effect of impeding prosecution.[10]


          16.     Government agreement 90-96 of March 7, 1996 established a certain level of separation in the development of public security plans, but the overlap in civilian and military functions continues in practice.  As MINUGUA has stated, "in order to combat impunity effectively, it is essential to professionalize the National Police and ... this, in turn, requires the separation of police and military functions."[11]  Given the climate of personal insecurity and the lack of public confidence in the police, professionalizing and reinforcing the ability of the civilian security forces to enforce the law must be a priority.  Reports indicate a lack of discipline in these forces, and the need to develop stronger systems of training and oversight. The IACHR emphasizes the importance of developing the organizational structures, training models, resources and oversight necessary to ensure that the police are able to discharge their mandate independently of the military.




          17.     The Commission notes that some progress has been made with respect to the socioeconomic situation since it last reported on this in its Fourth Report on the Situation of Human Rights in Guatemala of 1993.  According to statistics reported by the UN Development Program, Guatemala's human development index has risen, and it is now listed as a country having medium human development.[12]  However, these same statistics indicate that many Guatemalans continue to lack even the basic necessities of life. 


          18.     It is estimated that approximately 80% of the population lives in poverty, with 59% in conditions of extreme poverty.  UNDP data collected from 1985 to 1995 indicate that only 34% of the population enjoyed access to health services, 62% enjoyed access to safe water, and 60% to sanitation services.  The most recent statistics indicate that 54.6 of adult Guatemalans are literate.[13]  When urban and rural populations are compared, it may be noted that rural populations are at a severe disadvantage with respect to access to the foregoing services. 


          19.     In his 1996 report, the Ombudsman for Human Rights reported a rise in the number of denunciations received concerning violations of economic, social and cultural rights.  The Government of Guatemala has acknowledged the need for reform and for urgent action with respect to the social, economic and cultural life of the country.  The accord concerning socioeconomic aspects and the agrarian situation sets forth certain objectives to be met in this regard, and the Government has indicated that reforms to the tax structure will be an important aspect of change. 




          20.     The Guatemalan judiciary remains largely unable to deliver justice in the timely and therefore responsive manner required.  While the problem affects all spheres of the judiciary, it is particularly acute in the criminal justice context, where undue delay in investigation and prosecution prejudice the right of both the victim and the accused.  This is true with respect to cases concerning human rights violations as well as those concerning common crime. 


          21.     The international community has been informed on numerous occasions in the past about the problems within the administration of justice and the far reaching negative impact on the situation of human rights in Guatemala.  Thus, MINUGUA reported in the first half of 1996 that:


          [i]n the current situation of impunity, the majority of serious crimes and human rights violations go unpunished ... not because it is impossible to determine what has happened or to identify the perpetrators ... [but] due to the inefficiency of the national bodies responsible for investigation, judgment and punishment, as well as the influence that certain groups, mostly those connected with the State, have upon those bodies.[14]


The Arzú Administration has taken some important initiatives to confront impunity, including the dismissal of tainted members of the security forces and police.  Apart from these valuable initiatives, the necessary coordination and cohesion has yet to be brought to bear on the fight against impunity.


          22.     Deficiencies in the criminal justice system are attributed to a range of causes, including the lack of coordination between the responsible institutions, insufficient human and material resources, threats and intimidation against judges and prosecutors, and corruption within the system.  Although the current Code of Criminal Procedure, which took effect in mid-1994, provided for a number of noteworthy advances in the processes of criminal justice, problems with implementation continue to impede its proper application.  Given that independence and impartiality are fundamental requisites for the exercise of judicial power, the IACHR is particularly concerned by reports it has received concerning the use of threats and persecution against judges and prosecutors.  MINUGUA reported that two investigators of the Public Prosecutor's Office were murdered in May of 1996, while working on a case, and that the Prosecutor had been subjected to death threats.[15]  The Commission views the mid-1996 approval by Congress of the law concerning the protection of persons connected with the administration of criminal justice as an important step in what must be a comprehensive effort to address and ameliorate this situation.


          23.     The lack of popular confidence in the ability of the judiciary to discharge its mandate is manifesting itself in various patterns of illegal activity, including lynchings,[16] acts of "social cleansing,"[17] and the use of force and violence by private security guards or defense groups.[18]  Precise statistics on lynchings are not widely available.  The Grupo de Apoyo Mutuo reported 71 lynchings in 1996.[19]  In several cases, such as the killing of artist Oziel Calderon and others, media reports have made it clear that the victims of lynchings were targeted as a result of mistaken identity.  In any case, such acts of vigilantism represent a flagrant rejection of the most basic principles of due process.  These patterns constitute a grave threat to the democratic order of the State, for they undermine the rule of law itself.  The IACHR is particularly concerned to note that many of these acts have been met with little or no response on the part of the State.  The Commission stresses that such extra-legal activities cannot be tolerated, and that the appropriate remedy within the present transition process is to strengthen the ability of the police to fight crime.   


          24.     With respect to the administration of justice and the right to liberty, the Commission has received consistent reports that preventive detention and substitute measures are applied arbitrarily.  According to the Archbishop's Human Rights Office and MINUGUA, defendants with few resources are regularly subjected to pre-trial incarceration with little regard for the gravity of the crime alleged, the risk of nonappearance or the need to protect the investigation from interference, while others accused of offenses including homicide and kidnapping are granted substitute measures.  Notorious examples where substitute measures were granted and the accused failed to appear include the cases of former military commissioner Raúl Martínez, believed to have kidnapped a UN Mission team among other crimes, and Victor Roman Cutzal, implicated in the murders of Presbyterian priests Serech and Saquic.  Arrest orders subsequently issued in those cases have yet to be fulfilled.


          25.     The Commission is also very concerned by reports that minors in detention facilities are not routinely separated from adults as required by Article 7 of the American Convention.  Juvenile facilities are often not available in outlying areas, consequently minors may be held in inappropriate facilities with adults.


            Past Violations of Human Rights and the Need for Mechanisms to Combat Impunity


          26.     In February of 1997, the Commission for the Historical Clarification of the Truth was established with the naming of German professor and former UN Special Expert on Human Rights Christian Tomuschat to lead the Commission, whose members are educator Otilia Inés Lux García de Cotí and jurist Alfredo Balsells.  The Commission is initially invested with six months to perform its investigation, although an additional period may be added if necessary.  It is "to clarify with objectivity, equity and impartiality" the human rights violations and violence that have caused the suffering of the Guatemalan people, and "that are linked with the armed confrontation."  It is to "clarify fully and in detail" the violations at issue, but will neither individualize responsibility nor have any judicial intent or effect.  The IACHR wishes the Truth Commission success in fulfilling its important mandate of investigation and clarification of past violations.  The provision of appropriate human and material resources will be an important factor in the ability of the Truth Commission to accomplish its work.   


          27.     The full scope of the violations to be studied is not clear, but the conflict is widely reported to have left more than 150,000 dead, 440 villages razed, 1,000,000 internally displaced, and 45,000 refugees.  During 1996, a number of exhumations were carried out to produce the physical evidence of crimes which have yet to be officially accounted for, investigated, prosecuted or punished.  The Guatemalan Forensic team conducted exhumations in Agua Fría, Chicaman, Quiche; Josefinas, La Libertad, Petén; Pinares, Cahabon, Alta Verapaz; Pan de Sánchez, Rabinal, Baja Verapaz; Saguachil, Chisec, Alta Verapaz; El Chal, Dolores, Petén; San Diego, La Libertad, Petén; Chorraxaj, Joyabaj, Quiche; Las Flores, Dolores, Petén; and La Amistad, Dolores, Petén.   


          28.     The official revelation of the truth of past human rights violations can perform a critical function in the process of healing and reconciliation, and in setting the stage for appropriate prosecution and punishment within the judiciary.  The report of the Truth Commission in Guatemala will have the potential to help consolidate the process of reconciliation initiated at the turn of 1996.  Revelation of the atrocities committed during the armed conflict, set forth in an officially sanctioned account, will enable the people of Guatemala to reflect upon them, develop meaningful responses, and take steps to ensure peace for the future. 


          29.     Note must be taken in this regard of the December 18, 1996 adoption by the Congress of the "Law of National Reconciliation," following the December 12, 1996 signing by the Government and the URNG of an amnesty accord.[20]  The Law was adopted amidst great debate within Guatemala society.  A broad coalition of social sectors and nongovernmental organizations united under the banner of the "Alliance against Impunity" to oppose the accord and the adoption of the law. 


          30.     According to the Law, the extinction of criminal responsibility may be applied to: political crimes against the State, the institutional order and public administration (Article 2); common crimes "directly, objectively, intentionally and causally" linked to political crimes (Article 3); and common crimes perpetrated with the aim of preventing, impeding or pursuing political and related common crimes (Article 5).  However, Article 8 establishes that amnesty shall not apply to the following crimes: genocide, torture, forced disappearance, and those with respect to which there is no statute of limitations or for which amnesty is prohibited under internal law or Guatemala's international treaty obligations. 


          31.     The Commission has received information that the Presidential Coordinating Commission for Executive Policy in Human Rights Matters (COPREDEH) and MINUGUA have taken some steps to inform judges of the relationship between the provisions of this law and Guatemala's international treaty obligations.  Members of the Alliance against Impunity filed a constitutional challenge to the law which remained pending as of the end of February, 1997.  The Commission is informed that, as of the end of February 1997, requests for amnesty under the law have been denied in the cases initiated with respect to the killings of Myrna Mack and Jorge Carpio Nicolle.[21]  In this regard, the Commission has, in a variety of specific cases, articulated criteria concerning the interrelationship between impunity and laws which grant amnesty and comparable measures.[22] 




          32.     The pattern of human rights violations in Guatemala has changed for the better as the armed conflict has drawn to a close.  As the Sixth Report of MINUGUA indicated, "it is encouraging that during this period no forced disappearance had been proven" and there had been a "notable decline in the number of denunciations admitted with respect to that grave human rights violation.  This consolidates the perception that this condemnable practice is not carried out at this time in Guatemala."[23]  The Commission has noted a decline in the number of petitions received with respect to the right to life and physical integrity as well.  Notwithstanding these positive signs with respect to the right to life, the Commission must indicate that denunciations concerning this right continue.  For example, the Office of the Ombudsman reported that, during 1996, it had processed 173 cases concerning extrajudicial execution, 47 concerning forced disappearances, 15 concerning violations of physical integrity, and 12 concerning torture.  For the first ten months of the year, the Archbishop's Human Rights Office reported processing 112 cases of extrajudicial execution, and six cases of torture. 


          33.     With respect to the right to life, during the first half of 1996 MINUGUA verified 13 of 69 denounced cases of extrajudicial execution; 42 of 54 attempted extrajudicial executions; and 91 of the 267 instances of death threats that had been brought to its attention.  These denunciations cover situations prior to 1996 as well.  With respect to the right to physical integrity during this period, 2 of 8 cases of torture were verified; 9 of 10 complaints of cruel, inhuman or degrading treatment; 27 of 73 complaints of ill-treatment; 103 of 116 instances of excessive use of force; and 1010 of 1060 of other threats against persons.  Many of these complaints, which refer in significant part to situations prior to the current Government, were still being verified.[24]  The UN Mission noted that the absence of adequate investigation in cases involving violations perpetrated by state agents or groups or individuals linked to them made verification difficult.  During the latter half of 1996, MINUGUA verified 76 instances of extrajudicial execution; 214 instances of death threats; 13 violations of the right to be free from torture; 12 of the right to be treated humanely; 66 of mistreatment; 23 of excessive use of force; and 206 of other threats against persons.[25]


          34.     MINUGUA reported that the improper use of firearms by members of the security forces had resulted in deaths, and reflected an institutionalized lack of respect for the right to life, and the inadequate preparation and training of the agents.[26] 


          35.     The Commission is especially troubled to observe the continuing incidence of threats and violence against individuals associated with human rights promotion, labor and community leaders, members of university communities, and witnesses in cases concerning human rights violations, as well as the persistent lack of sufficient investigation, protective measures and prosecution of those responsible.  

          36.     In March of 1996, pursuant to Article 63.2 of the American Convention, the IACHR requested that the Inter-American Court of Human Rights issue provisional measures to protect the life and physical integrity of Father Daniel Vogt (case 11.497), who had been subjected to a series of threats in connection with his work with the community in El Estor.  The following month, the Commission requested provisional measures to protect witnesses in the case concerning the murders of Presbyterian priests Pascual Serech and Manuel Saquic in 1994 and 1995 (case 11.570) who had been subjected to threats in connection with the prosecution of that case.  The Commission requested that provisional measures initially adopted in 1994 and 1995, in the cases of Juan Chanay Pablo ("Colotenango," case 11.212) and Jorge Carpio Nicolle (case 11.333) be renewed.  The foregoing requests were granted by the Court by resolutions dated September 10, 1996, ordering the Government and the Commission to report periodically on the situation in each case. 


          37.     The IACHR, pursuant to Article 29 of its Regulations, addressed the Government on seven occasions to request that it adopt precautionary measures in favor of 28 named individuals (these are listed in the section of the Annual Report concerning the activities of the IACHR), including two sets of labor activists allegedly targeted for threats and violence in connection with their activities; Rosalina Tuyuc, Nineth Montenegro, Amílcar Méndez and Manuela Alvarado, members of the National Democratic Front who had been threatened with death; workers in the legal office IXCHEL, which defends human rights in the Petén; and witnesses in the case concerning the murder of Martín Pelicó Coxic and six others (Case 11.658) in San Pedro Jocopilas, who had been subjected to attacks and threats in connection with the prosecution of that case. 


            The Death Penalty and Article 4 of the American Convention


          38.     Prior to the entry into force of the American Convention with respect to Guatemala, Article 201 of its Criminal Code established the death penalty for the perpetrators of a kidnapping where the result was the death of the victim.  Via legislative decrees 38-94, 14-95 and 81-96, the Congress amended Article 201 so that it provides for the imposition of the death penalty for the perpetrator of a kidnapping even where it is not followed by the death of the victim.  MINUGUA, the Ombudsman for Human Rights and the Archbishop's Human Rights Office joined other groups in cautioning that this reform ran counter to both the Constitution and the American Convention on Human Rights.  Counsel for the Archbishop's Office brought a constitutional challenge against decree 14-95.  In its March 26, 1996 opinion rejecting that challenge, the Court of Constitutionality held that the Constitution did not expressly prohibit the extension of the death penalty in the form established, and that, although the Guatemalan Constitution accords international human rights treaties precedence over internal law, the American Convention did not constitute a parameter for constitutional analysis.


          39.     On January 30, 1997, the Ninth Chamber of the Court of Appeals commuted three death sentences issued in a particular case to noncommutable sentences of 50 years on the grounds that: Guatemala is Party to the American Convention; pursuant to the Constitution, international treaties have precedence over internal law; and, Article 4 of the American Convention establishes that the death penalty may not be extended to crimes for which it was not contemplated at the time of ratification.  The Ninth Chamber ruled that the court of first instance had misinterpreted and misapplied Article 201 of the Criminal Code as amended by decree 14-95, thereby giving rise to a violation of Article 4.2 of the American Convention.  The Commission values this latter ruling, as it gave due consideration to the international obligations of the State as a Party to the American Convention in interpreting and applying domestic law.  


          40.     Without entering into the specifics of the reform in question, the Commission recalls that the text of Article 4, subsection 1, of the American Convention establishes that the right to life shall be respected.  Subsection 2 stipulates that:


          In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment enacted prior to the commission of the crime.  The application of such punishment shall not be extended to crimes to which it does not presently apply.


Article 4.3 stipulates that "[t]he death penalty shall not be reestablished in states that have abolished it."  Each State party to the American Convention has undertaken, pursuant to Article 2, to ensure that every protected right is ensured by internal legislative or other provisions.  Consequently, at the time of ratification, each State party agrees to maintain its internal legislation in conformity with its obligations under the Convention.


          41.     The IACHR further notes in this regard the very clear interpretation of Article 4 articulated by the Inter-American Court of Human Rights in its Advisory Opinion OC-3/83 concerning "Restrictions to the Death Penalty."  With respect to Article 4.2, the Court determined that there could be no doubt that this provision forbids the extension of the death penalty "to crimes for which it did not previously apply."  "In this manner any expansion of the list of offenses subject to the death penalty has been prevented."  (Emphasis added.)  In accordance with the principle of irreversibility of rights, Article 4.2 constitutes, in the words of the Court, "an absolute prohibition" on such expansion.[27]  Reference is also made to Advisory Opinion OC-14/94 of December 9, 1994, which deals with related questions of state responsibility and affirms the foregoing understanding of Article 4.2.


          42.     Independently of questions relating to the expansion of the death penalty under Article 4, the IACHR notes that on September 10, 1996, it addressed the State of Guatemala to request that the latter take the measures necessary to stay the scheduled executions of Roberto Girón and Pedro Castillo Mendoza, who had been sentenced to death for the rape and murder of a child.  This action was requested in order to allow the IACHR to analyze an August 14, 1996 petition alleging that their trial had not met certain basic requisites of due process.  Specifically, the petitioners alleged that the accused had not had a legal defense provided by lawyers.  The September 12, 1996 response of the Government indicated that the request would not be implemented because the domestic law of Guatemala did not provide for such measures to suspend the execution of a death sentence.  Requests for special measures are framed in terms of the competence of the IACHR to act on petitions, under Article 41.f of the Convention, and to request precautionary measures when necessary to avoid irreparable harm to persons, under Article 29 of its Regulations.  In looking to the duty of each member of the inter-American human rights system to give effect to its norms, the Commission finds the response of the State in this matter to have contravened that duty, and the rejection of its request to have impeded the discharge of its functions.


          V.         FREEDOM OF EXPRESSION


          43.     Reports before the Commission indicate that free expression is generally exercised through the various forms of media.  A wide range of information and opinion, including political opinion, is reflected in the popular press.  The communications media has played an important role in the process of opening political dialogue.


          44.     The Inter American Press Association reported, however, on a series of threats against journalists in connection with their work.  Although neither the identity of the actors nor the motivation behind the acts had been clarified, the Press Association reported that, among other violent incidents, a bomb had exploded in front of the home of the Director of Radio Victoria; a fragmentation grenade was found in the parking lot of La Prensa; and three journalists had been murdered.  The Press Association expressed its continuing concern that such incidents be properly investigated, and, particularly called for the clarification of the murder of Jorge Carpio Nicolle in 1993.  The Commission has received additional information that instances of intimidation and violence continue against representatives of the communications media.  MINUGUA noted in this regard the kidnapping and torture of Vinicio Pacheco, of Radio Sonora, in February of 1996.[28] 


          45.     Free expression is a crucial right in a democratic society, is expressly guaranteed under the American Convention, and must be protected in accordance with that status.  It cannot be properly exercised in a climate where threats and violence against journalists are tolerated.  The IACHR reiterates that it is the responsibility of the State in the case of crimes by public or private actors to ensure appropriate investigation, prosecution and punishment.




          46.     The Commission continues to monitor the situation of labor rights and working conditions in Guatemala.  Subsequent to its ratification of Convention 87 of the International Labor Organization, Guatemala adopted a new Regulation for the Recognition of the Juridical Personality and the Approval of Statutes and Registration of Labor Organizations to facilitate these processes before the Ministry of Labor and Social Welfare.   


          47.     With respect to working conditions, on January 2, 1996, the minimum wage was raised to 17.60 quetzales per eight hour day ($2.93).  Although the law sets this wage, it is not always complied with and is insufficient to provide the minimum necessities.  Health and safety standards are criticized as inadequate, and are not properly enforced in any case.  The UN Committee on Economic, Social and Cultural Rights indicated that it was:


          deeply disturbed at the apparent flagrant disregard of labour laws, the alarming reports of employer impunity, the lack of respect for minimum wages, for conditions of work and unionization, particularly as they affect individuals employed in a large number of the farming sectors.[29]



The Committee took note that certain accords call for steps to be taken to enhance the monitoring and enforcement of labor standards, but expressed continuing concern with respect to the question of achieving the implementation of such steps.


          48.     With respect to the agrarian situation, the Committee stated that "the issue of land ownership and distribution of land is crucial to addressing economic, social and cultural grievances of a substantial segment of the population."[30]  The occupation of farms continues to generate tension in certain departments of Guatemala.  Such occupations are most often carried out by indigenous communities seeking to reclaim land taken in favor of ladino proprietors, or by finca employees seeking to protest working conditions and low pay.  While the Government has reported that evictions are only carried out peacefully and pursuant to judicial order, the IACHR has received reports of evictions carried out by land owners who have employed violence.  The IACHR will investigate these situations in the cases that have been presented in order to establish their truth. 


          49.     In its report on the second semester of 1996, MINUGUA indicated continuing concern with respect to the use of violence in carrying out evictions.  They cited a September 1996 instance in Los Ocós, San Marcos, in which the eviction of campesinos occupying a farm by the National Police left one person dead and dozens of others injured.  On a more promising note, MINUGUA reported that it had been able to assist the Government in peacefully resolving the occupation of a petroleum installation by workers and the blocking of a highway by local producers, in November and December of 1996, respectively, through the use of dialogue and negotiation.[31]


          50.     The tension concerning land distribution and the agrarian situation continues to have an impact on the situation of returnees.  For this and other reasons, the pace of return slowed during 1996.  The United Nations High Commissioner for Refugees reported that 2,599 refugees returned during the first half of 1996, just over a quarter of the number who had returned during the same period the year before.  Just over 4,000 refugees were reported to have returned during 1996.





          51.     Due to the special needs and vulnerability of children, Article 19 of the American Convention on Human Rights specifies that every minor "has the right to the measures of protection required by his condition as a minor on the part of his family, society and the state."  In a country such as Guatemala, where approximately 46% of the population is under 15 years of age, the situation of children and their rights must clearly be in the forefront of State concern and action.  In October of 1996, the State of Guatemala adopted a new Code of Childhood and Youth, although it has yet to enter into force. 


          52.     The Government has reported that the infant mortality rate, which had been 59 per 1000 in 1990, fell to 40 per 1000 in 1993, and that the mortality rate for children under 5 had fallen from 105 to 69 per 1000 over the same period.[32]  These rates, however, remain higher within certain socioeconomic groups.[33]  Pursuant to the peace accords, the Government is committed to attaining a 50% increase in spending on education, nutrition and health between 1996 and 2000.  Increased spending in these areas will be particularly important for children, who continue to suffer in large numbers from the effects of poverty, malnutrition, and lack of access to education and health care.  Government reports indicate that the school system covered 68.2% of children of primary school age (7 - 12), but only 20% of those between 13 and 15, and 10.9% of those between 15 and 18.[34]


          53.     The IACHR is particularly concerned by the situation of children who, for reasons of economic necessity, are compelled to work rather than attend school.  A 1995 UNICEF study indicated that close to 1,000,000 Guatemalan children were working rather than attending school.[35]  Moreover, the Commission is informed that working conditions for many such children are poor, that there are few systems to monitor or enforce standards, and that Guatemala's obligations under the Convention on the Rights of the Child in this regard are not met.


          54.     The Government has recognized that the situation of the country's street children is made tragic by their victimization through acts of violence that, "until recently, went completely unpunished."[36]  The Office of the Ombudsman has a special program, the Defensoría de los Derechos de la Niñez, dedicated to protecting the rights of children, and COPREDEH, the Ministerio Público and Casa Alianza participate in a standing commission to monitor the situation of street children.  The IACHR notes that, in December of 1996, a private security guard was sentenced to prison for the murder of street child Oscar Rene Marroquin, and two policemen were sentenced as accomplices for having helped conceal the body.  The Commission recognizes these sentences as an important response, and expresses its hope that every such violation will be met with the required responses of investigation, prosecution and punishment so that these crimes do not languish in impunity.


          55.     However, the IACHR continues to receive reports of violence against street children, which it will examine in the cases presented, including assaults and sexual crimes, illegal and arbitrary detention, and in several instances, homicides.  Casa Alianza continues to document such cases, which according to this institution include instances of abuse at the hands of state agents.[37]  In this regard, the UN Human Rights Committee stated in 1996 that it:


          deplores the situation of street children in Guatemala, who are subjected to serious violations of their human rights ... particularly their right to life and not to be subjected to torture and ill-treatment.  The Committee is concerned at the intensity of abuse against street children by persons of authority, including the public and private police.[38]


For its part, on January 30, 1997, the Commission submitted the case of Anstraum Villagrán et al. (11.383), known as "Los Bosques de San Nicolás," before the Inter-American Court of Human Rights, in which the Commission found the State responsible for violations of the right to life and to be free from torture practiced by state agents against several Guatemalan street children in 1990. 




                        Equality and the Rights of the Indigenous Population


          56.     The participation in national life of the indigenous peoples of Guatemala, who constitute more than half of the population, has advanced in several significant ways. In the political sphere, the IACHR has taken note of the representation gained as a result of the elections held in the latter part of 1995 and January of 1996, whereby indigenous candidates were elected mayor in 100 municipalities, including the departmental capitals of Sololá and Quetzaltenango, and six indigenous deputies were elected to Congress.


          57.     At the State level, a number of significant steps have been taken.  In 1995 the Government initiated measures to establish the crime of racial and ethnic hatred, which had not previously been codified.  In 1996, Guatemala ratified International Labor Organization Convention 169.  Within the framework of the peace negotiations, the Government and the URNG signed an accord on the identity and rights of indigenous peoples.


          58.     At the same time, it must be noted that Guatemala has a bilingual education program designed to provide schooling in mostly indigenous areas in the local language, with Spanish being introduced at a later stage.  The language training methodology used was recently accorded a prize by UNESCO. 


          59.     Without prejudice to these advances, the situation of the indigenous population with respect to their access to justice continues to concern the IACHR.  The lack of respect for cultural diversity which persists results in de facto and de jure instances of discrimination.  For example, the courts generally operate in Spanish, although many of Guatemala's inhabitants speak an indigenous language, and rarely are able to provide the translation or interpretation necessary to a ensure due process.  Additionally, it is often very difficult for indigenous populations in outlying areas to have access to justice because of the scarcity of facilities.  MINUGUA has been working with the State to strengthen the ability of the judiciary to respect the linguistic pluralism of the country, and to provide a center for the administration of justice in Nebaj, which would offer prosecution, defense and police services not currently available.


          60.     The UN Committee on Economic, Social and Cultural Rights has expressed its deep concern that: "Far reaching racial discrimination, extreme poverty and social exclusion in relation to the indigenous populations negatively affect the enjoyment of economic, social and cultural rights by these populations."[39]  With respect to the access of indigenous children to education, the UN Special Expert on Guatemala indicated that only 30 of 100 indigenous children attend primary school (as opposed to 73/100 for nonindigenous children), and only 6 of 100 attend secondary school (as opposed to 32/100 of nonindigenous).[40] 


            Equality and the Rights of Women


          61.     Pursuant to Guatemala's ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women in 1995, at the close of 1996, the Congress approved the "Law to Prevent, Sanction and Eradicate Intrafamilial Violence.  The law establishes a range of measures to protect victims of violence carried out by a family member, including a spouse, former spouse, or the person with whom the victim has a child, and between persons who share or have shared a residence.  Those particularly vulnerable, women, children, the elderly and the disabled, are to be accorded special protection based on the circumstances of the case.  The law applies to any act or omission which directly or indirectly causes harm, or physical, sexual, patrimonial or psychological suffering, whether in the public or private spheres, and applies independently of the provisions of the Criminal Code. A denunciation may be filed with a relevant state institution, which must register and forward it to the corresponding family or criminal court within 24 hours.  Pursuant to the comprehensive set of protective measures established, a presumed aggressor may be ordered to leave a shared residence; he or she may be ordered to refrain from keeping arms or arms may be confiscated; parental custody or visitation rights may be suspended; and other measures may be ordered to prevent the aggressor from interfering with the victim.  The National Police are obliged to intervene in these cases de oficio, or when so requested by a victim or third person.  The Commission values the adoption of this significant law which recognizes the duties of the State under the Convention of Belém do Pará, and which contitutes a substantial advance in the fight to combat this devastating violence, and looks forward to reports of action to fully implement its terms.


          62.     The Commission further notes that, early in 1996, the Court of Constitutionality ruled Articles 232 through 235 of the Criminal Code (referring to adultery and concubinage) unconstitutional due to their effect of discriminating against women.  The pleadings before the Court referred to the American Convention and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women in evaluating the challenged provisions.  This ruling is very significant within the context of the effort being made by various branches of the State to bring Guatemalan law into conformity with constitutional and international legal obligations.


          63.     The Commission continues to follow efforts to reform other legal provisions, particularly the sections of the Guatemalan Civil Code concerning the role and representation of spouses within the marital unit so that women have the full capacity to exercise their rights and freedoms on the basis of equality.   


          IX.       CONCLUSIONS


          64.     1996 has seen remarkable changes in the human rights situation in Guatemala.  The paramount objective of attaining an end to the armed conflict has been met.  The different sectors of Guatemalan society have opened a new political space, thereby engendering opportunities for dialogue and collaboration in addressing the challenge of implementing the agreements negotiated between the Government and the URNG.  It is important to emphasize that the objective that all individuals may fully and equally enjoy their rights and freedoms has been a priority in the process of negotiation.  The actions of the Guatemalan State and society to end the armed conflict and initiate peace provide a necessary precondition for advances in human rights, and a foundation to work in favor of reform.  The Commission recognizes and values the advances that have been attained.  Of particular importance in this regard is the initiation of transformations in previously repressive structures, as exemplified by the dissolution of the PACs.  This is also exemplified in the action of the Government to obtain compliance with human rights, in particular, with regard to respect for the right to life on the part of its agents.


          65.     Without prejudice to these developments, the Commission continues to be seriously concerned because the situation in Guatemala does not yet allow for the full enjoyment of human rights.  The long conflict which Guatemala suffered has left serious sequelae in cultural and institutional areas which require a concerted and permanent effort to overcome: 1) the activity of the police is not fully controlled; the judiciary does not guarantee that there is justice is all cases; 3) there is uncertainty with respect to the application of the Law of Reconciliation; 4) in spite of the express text of the American Convention, there is an extension of the death penalty by means of legislative decrees 38-94, 14-95 y 81-96; and, 5) individuals have taken justice in their own hands (lynchings) in contravention to the basic principles of the rule of law.  The Commission will continue observing the progress made in relation to the situation of human rights of Guatemala with great interest.


          X.         RECOMMENDATIONS


          66.     The IACHR encourages all parties in the peace negotiations to persevere in their dedication to consolidating peace, to fully comply with the peace agreements, and to advance in the implementation of the required reforms.


          67.     The Commission recommends that priority attention be given to reforms within the judicial system, including the provision of additional resources, improved training and coordination, and the restructuring and reinforcement needed to develop its capacity to promptly and thoroughly investigate and respond to human rights violations and common crime.



          68.     The Commission recommends that any instance of threats or intimidation against judges, prosecutors and investigators be met with a swift response, including effective protective measures whenever appropriate, investigation, and the submission of those responsible to justice. 



          69.     The Commission recommends that the relevant authorities vigorously investigate, prosecute and punish lynchings, attempted lynchings and so-called acts of "social cleansing," which are unacceptable within the inter-American human rights system.



          70.     The Commission recommends that the measures that must be taken within the domestic legal framework to attain the full equality of women be concluded.



          71.     The Commission recommends that additional attention be dedicated to the proliferation of arms and private security forces or groups, to assure that adequate legislative, administrative and judicial measures are in place to control the number and use of firearms, and to monitor and control the actions of private security agents.



          72.     The Commission recommends that the State amplify its efforts, in accordance with the accord on the identity and rights of indigenous peoples, to remedy the instances of de facto and de jure discrimination so as to attain their full participation in national life and development.



          73.     The Commission urges the State to accord higher priority to the protection of children, to meeting their basic needs for adequate nutrition, health care and education, and to ensuring that children who must work do so under conditions that accord priority to their education, and that prohibit night work or other forms of employment that place their health, safety or development at risk.

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[1] Misión de Observación Electoral de la Organización de los Estados Americanos, Elecciones Generales en Guatemala, 12 de noviembre de 1995, 7 de enero de 1996: Informe Final, OEA/Ser.G/CP/INF.3947/96, 12 abril 1996.

[2] Id., at 32-37.

[3] "Los Derechos Humanos y el Proceso de Paz en Guatemala", presentation by Jorge Mario García Laguardia, (Procurador de Derechos Humanos: Colección Cuadernos de Derechos Humanos 6-96 (1996)), at pp. 22-25, 30-32.

[4] See, e.g., Fourth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.83, Doc. 16 rev., June 1, 1993, at 60-61.

[5] Sixth report of the Director of the United Nations Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala [hereinafter Sixth Report], A/51/790, 31 January 1997, para. 40.

[6] Fifth report of the Director of the United Nations Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala [hereafter Fifth Report], A/50/1006, 19 July 1996, para. 70, see also, para. 196.  See also, Sixth Report, paras. 80, 81 (referring to actions of some members of the armed forces, in contravention to orders of the high command, to encourage the formation of successor groups, and to interfere with the program of demobilization).

[7] See generally, Sixth Report, para. 17.

[8] Fifth Report, para. 74.

[9] See, e.g., Fifth Report, paras. 77, 129-31, 195; Oficina de Derechos Humanos del Arzobispado de Guatemala, Diagnóstico de la Situación de Derechos Humanos en Guatemala: 1996 (noting indirect role of military intelligence).

[10] Sixth Report, para. 83.

[11] Fifth Report, para. 77.

[12] UNDP, Human Development Report 1996, 136 (1996).

[13] Id. at 144.

[14] Fifth Report, para. 55.

[15] Fifth Report, at paras. 50, 52 and 192.

[16] Id. at paras. 23 (noting such incidents in departments of Guatemala, Chimaltenango, Escuintla, Sololá, El Quiché and Petén), and 63 (noting concern at State's failure to investigate).

[17] Id. at paras. 63, 73, 200 (referring to finding of abandoned corpses consistent with this modus operandi, and lack of investigation).

[18] See id. at paras. 72, 85, 196-97 (noting that the public's lack of confidence in the security apparatus of the State is resulting in the use of public forces to protect private interests, as for example, the Mobile Military Police, and the growth of private security forces that delegitimate public action).  With respect to each of the foregoing manifestations, see generally, Sixth Report, paras. 136-138.

[19] Órgano Informativo del GAM, "Vida y Libertad," boletín noviembre-diciembre 1996, at 10.

[20] It may be noted that the global human rights accord of 1994 stipulates that the Government shall not sponsor any measure designed to prevent the prosecution and punishment of human rights violations.

[21] These cases are pending before the Inter-American Commission as numbers 10.636 and 11.333, respectively.

[22] See, Report Numbers 28/92 (Argentina), and 29/92 (Uruguay), Annual Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, Doc. 14, corr. 1, March 12, 1993, pp. 35, 154.; Report on the Situation of Human Rights in El Salvador, OEA/Ser.L/V/II.85, Doc. 28 rev., Feb. 11, 1994, at 75; and, Report Numbers 36/96 (Chile) and 34/96 (Chile), Annual Report of the IACHR 1996.  See generally, "Areas in Which Steps Need to be Taken Towards Full Observance of [] Human Rights," Annual Report of the IACHR 1985-86, OEA/Ser.L/V/II.68 doc. 8 rev. 1, 26 Sept. 1986, at 193.

[23] Sixth Report, para. 19.

[24] Fifth Report, paras. 21-29; appendix.

[25] Sixth Report, appendix.  The instances verified included complaints admitted during the reporting period, as well as some that had been admitted previously.

[26] See, Fifth Report, at paras. 25, 28.

[27] Advisory Opinion OC-3/83 of September 8, 1983, "Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Ser. A No. 3, paras. 56, 59.

[28] Fifth Report, para. 41.

[29] Concluding observations of the Committee on Economic, Social and Cultural Rights [on the initial report of Guatemala (E/1990/5/Add.24)], E/C.12/1Add.3, 28 May 1996, para. 18.

[30] Id., at para. 17.

[31] Sixth Report, para. 11, see also, para. 90.

[32] UN Committee on the Rights of the Child, Consideration of the initial report of Guatemala, CRC/C/SR.308, 5 July 1996, para. 3.

[33] Concluding observations of the Committee on the Rights of the Child: Guatemala, CRC/C/Add. 58, 7 June 1996, para. 21.

[34] UN Committee on Economic, Social and Cultural Rights, Consideration of the Initial Report of Guatemala, E/C.12/1996/Sr.14, 15 May 1996, para. 57.

[35] Report of the Independent Expert, Mrs. Mónica Pinto, on the situation of human rights in Guatemala, E/CN.4/1996/15, 5 December 1995, para. 112, citing, UNICEF, Guatemala, análisis de situación (1995).

[36] UN Committee on Economic, Social and Cultural Rights, Consideration of initial report of Guatemala (continued), E/C.12/1996/SR.13, 28 May 1996, at para. 33.

[37] See, Statistics of the Office of Legal Aid of Casa Alianza in Guatemala, for the period 1990 - 1996 (presented per year).

[38] Concluding Observations of the Human Rights Committee [on the initial report of Guatemala], CCPR/C/79/Add.63, 3 April 1996, at para. 20.

[39] Concluding observations, supra, para. 15.

[40] Report of the independent expert, supra, para. 95.