CHAPTER I

THE ADMINISTRATION OF JUSTICE

A.        Introduction

15.              The Commission underscores how important an efficient and independent administration of justice is to strengthening democracy and making the rule of law fully effective.  A judiciary that meets such standards is able to curtail abuses and guarantee lawfulness and the protection of the rights of all people.

16.              Furthermore, those standards need to be met if Guatemala is to fulfill its obligations under applicable international law, its National Constitution and the Peace Agreements.  In particular, the Commission points to the general obligation of every State, under Article 1 (1) of the American Convention, to respect the rights enshrined in that treaty[10].  Article 8 of the American Convention on Human Rights establishes the right to appropriate judicial safeguards[11]; Article 24 the right to equality before the law[12]; and Article 25 the right of the individual to have effective recourse to a competent court for the protection of fundamental rights[13].  Other international instruments such as the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Elimination of Violence Against Women, to which Guatemala is a party, include specific provisions requiring violations of human rights to be effectively investigated, prosecuted and punished.  The International Covenant on Civil and Political Rights, to which Guatemala is a party, the Basic Principles on Independence of the Judiciary, the Declaration on Fundamental Principles of Justice for Victims of Crime and Abuse of Power, and the Guidelines for Prosecutors, all instruments adopted in the framework of the United Nations, also contain standards in the area of administration of justice.

17.              During its visit, the Commission received information on the status of the Guatemalan judiciary, including information on efforts made to train judges, appoint new justices of the peace and establish community courts.  There are now in Guatemala 307 justices of the peace, 184 lower-court judges, 83 magistrates of appeal courts and 13 judges of the Supreme Court.  The Justice Department has about 560 prosecutors and the Public Defense Institute has 100 defenders on its staff throughout the country[14].  According to information received, there was an increase in the number of magistrates and judges in the Judicial Agency between 1997 and 2001[15].

18.              In its observations, the Guatemalan State reported that the traditional and obsolete systems for administration of justice have been changed and replaced by transparent and modern administrative systems, to improve access to justice for the public, based on principles of functional and economic independence, selection of personnel, and the immunity of magistrates and lower court judges from removal, except in cases established by law.

19.              With respect to the administration of justice, during its visit the IACHR observed serious deficiencies that continue to plague the judiciary.  Among the worst problems affecting the administration of justice are structural impunity, which includes not only past violations of human rights but present crimes, a shortage of resources, scant progress in modernizing the judiciary, poor training of judges and law enforcement officials, a lack of independence and impartiality on the part of some judges, politicization of justice, pressures of various kinds exerted on judges and law enforcement officials, lack of access to justice by many segments of society, the absence of adequate implementation of career rules in the judiciary and the instability in office thereby created.  The Commission also learned of a very significant increase in assaults and attempts made on the lives of judges, prosecutors and other law enforcement officials.

20.              The efforts made by the Guatemalan State to fix problems in the administration of justice are insufficient.  This chapter sets out the Commission's observations on the difficulties still faced by the judicial system, with a view to prompting the State to provide its citizens with better access to justice, insure the impartiality and independence of judges, and eradicate impunity and the denial of justice in Guatemala.

B.        Impunity and denial of justice

21.              Effective establishment of the rule of law is brought about largely by ensuring the existence of an administration of justice that will not tolerate impunity.  Society must see that the judiciary applies the law equally to all and guarantees that all inhabitants effectively enjoy their rights.  The Commission has maintained that impunity is one of the serious problems affecting the administration of justice in the hemisphere and an obstacle to the rule of law taking hold firmly in several countries of the region[16].  The Commission notes with concern that the judiciary is ineffectual in dealing with crimes committed in Guatemala both in the past and now, presenting a picture of structural impunity.  In line with its mandate, the Commission points out that this situation has a bearing on the observance of Articles 1(1), 8 and 25 of the American Convention.

22.              Persistent high levels of impunity mean that many serious crimes go unpunished, to the detriment of the very life of the nation and its culture.  In addition, the State's international obligations are affected when it does not meet its duty to conduct a serious, impartial and effective investigation of crimes and punish their perpetrators, even when the crimes are not committed by government agents.  Such an omission gives rise to the additional obligation to compensate victims or their families for the violation of their right to obtain a proper investigation from the State.  Lastly, this situation increases society's distrust of the legal system and fosters the continual recurrence of violations of fundamental rights.  In this regard, the Inter-American Court has established that:

If a State leaves violations of human rights unpunished, it fails to comply as well with its general duty to guarantee to people under its jurisdiction the free and full exercise of their rights.  This Tribunal has repeatedly addressed the right of victims' families to know what happened and who were the government agents responsible for the events.  "Investigation and punishment of those responsible [...] is an obligation of the State whenever a violation of human rights has taken place, and that obligation must be discharged earnestly and not as a mere formality."  Furthermore, this Tribunal has indicated that the State "has the obligation to combat [impunity] by every legal means at its disposal and that [impunity] promotes chronic recurrence of violations of human rights as well as the total defenselessness of the victims and their families."[17]

23.              As regards prosecution and punishment of persons responsible for past violations of human rights, the Commission observes with profound concern that the worrisome impunity for violations perpetrated during the armed conflict remains unchanged.  According to the information collected during the visit, 99 % of cases of forced disappearance, torture, massacres, extrajudicial executions and acts of genocide committed during the armed conflict remain unpunished[18].  Out of 300 complaints filed over acts of genocide committed during the armed conflict, for which the respective exhumations were done, only two oral public trials are said to have taken place[19].  Indeed, from the cases, the general interviews conducted by the Commission, and the visit itself, the Commission has learned that the judiciary has so far failed to try and punish the perpetrators of nearly all violations of human rights committed during the armed conflict.  Nor, the Commission was informed, has the State imposed administrative sanctions on public and military officials presumed responsible for violations of human rights during the armed conflict.  This generalized impunity has led the parties affected by violations of human rights during the armed conflict to resort to foreign courts, under the principle of universal jurisdiction, to seek the redress they are unable to obtain in the administration of justice of Guatemala.

24.              Widespread impunity includes even cases that have drawn national and international attention, such as the murders of Monsignor Juan José Gerardi in 1998 and the anthropologist Myrna Mack Chang in 1990.  A common feature of these cases is that they involve the Guatemalan administration of justice as a whole.  It bears stressing that even in cases where government agents have been found guilty, the judgment is still awaiting a final decision.  Myrma Mack is a case in point.  Even though one of the material perpetrators of the murder was sentenced to 30 years in prison, domestic courts have recently issued on appeal a decision absolving the alleged instigators.  In the final written summation filed in the case of the extrajudicial execution of the anthropologist Mack Chang, which is being heard by the Inter-American Court of Human Rights, the Commission maintained that the decision handed down on appeal, which insured impunity for the instigators of the crime, is arbitrary.

25.              During its in loco visit, the Commission took an in-depth look at the various factors that contribute to impunity.  Among them are serious shortcomings in the Justice Department, the judiciary and, in particular, the National Civil Police; irregularities in the collection and production of evidence as well as at crime scenes; improper influence from the military in matters unrelated to their specific functions, especially through the use of military intelligence in criminal investigations; the reluctance of security agencies, by abusively invoking a "State secret," to provide judges with relevant information; and the shielding and covering up of perpetrators by some officials in investigations dealing with organized crime.  The Commission also heard about: unwillingness, negligence or inability on the part of many judges to stop the use of procedural actions intended to obstruct justice; corruption; the absence of a policy on crime designed to combat the lack of safety of the public at large; threats and intimidation against law-enforcement officials, human rights advocates and other civic leaders; the inefficiency of the judiciary; unjustified delays in judicial proceedings; the existence of underground security forces; and the budgetary limitations placed on the administration of justice.

26.              The deficient performance of both the judiciary and the Justice Department are aggravating factors in this persistent picture of impunity in Guatemala.  The Commission points out that structural impunity affects, and in turn is the responsibility of, all institutions involved in the administration and pursuit of justice.  However, eliminating impunity is a duty of all Guatemalan government institutions.  During the visit, the Justice Department told the Commission that it was committed to investigating anyone involved in these kinds of violations, but that it believed it was up to the State to provide the resources and the political will to make good on this commitment and to achieve specific results.

27.              For due process to exist in a country, the duty to investigate complaints, prosecute those responsible and punish them, must be discharged.  During the visit, the Commission received information on complaints that have been filed over violations of due process of law in Guatemala[20].  Between October 1, 1999 and June 30, 2000, there were 2,991 verified violations of due process[21]; between July 1, 2000 and June 30, 2000, the number was 3,672 (55 % of which were prompted by government failure to investigate and punish)[22]; and between July 1, 2000 and June 30, 2002, the number was 4,719[23].  The statistics of the Solicitor for Human Rights, on the other hand, show 58 case files opened in connection with violations of due process between November 2001 and November 2002, of which 63.79% complain about continuity and the speed of the proceedings[24].  The constant increase in the number of violations of due process is alarming; this increases impunity and distrust in the operation of the Guatemalan judicial system.

28.              Moreover, structural impunity in Guatemala is furthered by the complacent processing, on the part of the judiciary, of notoriously frivolous legal actions designed to obstruct justice.  Although the filing of complaints is in itself part of the right to defend oneself, the Commission learned that attorneys defending people accused of crimes in Guatemala use such complaints to delay decisions by local courts, and the judges who oversee the proceedings do not take appropriate measures to prevent what in practice amounts to a denial of justice.  The Commission found a consensus among representatives of the State and civic leaders that certain judges and magistrates allow complaints to be used and abused, thereby delaying final decisions in various cases[25].  Improper processing of actions for infringement of fundamental rights [recursos de amparo] is evident in cases of serious violations of human rights, as in the massacre at Xaman, in 1995[26], and the massacre of the Two R's [Dos Erres] in 1982[27], as well as in the murders of Monsignor Gerardi and Myrna Mack Chang[28] mentioned above.  These cases illustrate the use of legal actions to delay the administration of justice when deciding cases of violations of human rights in Guatemala.  The means most often used for this purpose is the action for infringement of fundamental rights [amparo][29]. According to the information received, justice is being obstructed in 86 % of cases in which this legal action is used[30].  The Commission urges the State to carefully review in each case the admissibility of the "amparo"  action and to comply with the deadlines set for it, so as to neither tolerate nor contribute to unjustified delays in disposing of cases before the Guatemalan courts.

29.              Another factor contributing to impunity is the lack of cooperation by some government agencies with the judiciary to help it investigate, prosecute and punish persons responsible for violations of fundamental rights.  The Commission received information on the refusal of government agencies to turn over information needed by law-enforcement officials in their investigations and court proceedings[31], very often by arguing a "State secret" in order to delay and obstruct investigations launched by the

judiciary[32].  The Commission underscores that administrative acts must be public, with the exception of information that may pose a risk to national security or the integrity of criminal investigations, and it is up to the courts to determine whether a particular piece of information should be confidential.  Although the Commission received information on the proposed Law on Access to Information submitted by the Strategic Analysis Department, which will be discussed in the chapter on freedom of expression in Guatemala, it needs to point out here that the State must introduce adequate mechanisms for the various government agencies to cooperate with judicial efforts intended to clear up violations of human rights and cases of corruption and organized crime.  In this regard the Commission has already established that:

Prompt and proper administration of justice, especially when investigating, punishing and remedying atrocious crimes or serious violations of human rights attributable to agents of the State, often depends on documents that have been classified as secret and other evidence rendered inaccessible for reasons of national security.  Preservation of official secrets in these cases serves only to perpetuate impunity and erode the authority of the State in the eyes of its own and all other people[33].

30.              A review of the widespread impunity in Guatemala for current cases (such as lynchings, corruption, organized crime and common crimes), as well as past cases, leads to the conclusion that cases in which the judiciary tries the perpetrators and imposes the appropriate criminal penalties are exceptional.  The Commission found only a few cases where the Office of the General Prosecutor of the Nation, the Department of Justice and the Judicial Agency had employed and focused resources to investigate and punish government agents accused of grave violations of human rights.  For example, in April 2003 guilty verdicts and sentences were handed down for two extrajudicial executions perpetrated by agents of the now-dissolved Anti-drug Operations Bureau [Dirección de Operaciones Anti Narcóticos (DOAN)] on January 29, 2002, in the village of Chocón, Livingston, Izabal[34].  The Commission, in turn, received information about complaints processed by the Solicitor for Human Rights (PDH)[35], but notes that inasmuch as this agency is not part of the judiciary, it does not relieve the State of its duty to conduct judicial investigations.  The Commission urges the State to move forward with the resolution of all cases that remain unpunished, securing results as in the case of the village of Chocón, so as to help re-establish the rule of law in Guatemala.

C.        The requirements of independence and impartiality

31.              Article 8 of the American Convention provides that every person has a right to a hearing by an independent and impartial tribunal.  The Political Constitution of Guatemala, in turn, recognizes this right to all its inhabitants[36].  The absence of independence and impartiality points to a lack of serious, sustained attention to the process of modernizing and strengthening the judiciary.  In fact,

An administration of justice free from any improper interference is an unavoidable prerequisite for insuring protection of fundamental rights and basic democratic principles.  Rule of law requirements, including an independent judiciary, must be established and must take root in the form of institutions within the political and legal culture of the country.  Accordingly, total respect for judicial independence is a requirement for establishing the rule of law and, consequently, for democratic consolidation.  One of the fundamental principles that inspired the Political Constitution of Guatemala is the independence of the judiciary.  Rather than a prerogative of judges, this must be seen as a safeguard for its citizens[37].

32.              The Commission learned about internal and external interference with the independence and impartiality of judges in Guatemala.  The internal influences reported are unwarranted recommendations through circulars, suggestions or orders issued by other law-enforcement officials who, because of personal interests, seek to influence court decisions.  In particular, information was obtained according to which the Supreme Court issued directives to the lower courts and some of these instructions, it was pointed out, violated internal regulations [38].  On the other hand, a lack of proper enforcement of the objective requirements prescribed by the Judicial Career Law for appointing, disciplining and removing judges diminishes their independence and impartiality.  Furthermore, the reported outside influences take the form of pressures from the media, the military, political parties, the business sector, and other branches of government, as they seek to protect private or special interests through the judiciary.  All these interferences are intended to stigmatize law-enforcement officials, discredit them and influence judicial decisions[39].

33.              The Commission notes that pressures on the judiciary may even be violent, translating into intimidation, threats and attacks against law enforcement officials.  This situation became apparent in the events that followed the in loco visit of the Commission, particularly the serious pressures and intimidation directed against the Guatemalan administration of justice on July 24 and 25, 2003.  The Commission condemned the violence carried out by hundreds of sympathizers of the governing party, the Guatemalan Republican Front [Frente Republicano Guatemalteco (FRG)].  Covering their faces and brandishing firearms, cudgels and machetes while the police passively looked on, they surrounded the Constitutionality Court, the Supreme Court, the office of the Solicitor for Human Rights, among other government offices, as well as private companies, media facilities and offices of human rights organizations.

34.              The demonstrators arrived in Guatemala City on buses and trucks and were supplied with food and beverages, as well as tires for the barricades, by vehicles with no license plates that drove around the city.  The Mission of the OAS Election Observer in Guatemala was able to ascertain, thanks to witnesses and documentary evidence, that "the protests were neither random nor spontaneous, but planned"[40] in response to political and student demonstrations protesting the July 14, 2003 decision by the Constitutionality Court to accept the presidential candidacy of former general Efraín Ríos Montt, as well as the ruling of July 25, 2003, by which the Supreme Court of justice temporarily suspended his candidacy.

35.              It should be highlighted that the decision by the CC on July 14, 2003, was sharply criticized[41], on the one hand, because it reversed its own case law of 1990 and 1995 according to which Article 186 of the Constitution of Guatemala disqualifies persons who have led movements or governments that broke the constitutional rule of law and, on the other, because of the procedure used to select--by a secret drawing of lots--the two alternate magistrates that sat on the Court of Constitutionality to rule on the "amparo" action relating to the presidential candidacy of the former general. According to the ruling issued on July 22, 2003, by the Solicitor for Human Rights, that procedure "involves a violation of principles of due process of law."[42]

36.              The Commission views as a particularly serious attack on the conventional principle of independence and impartiality of the judiciary that these violent demonstrations should have taken place when the Constitutionality Court was hearing the FRG's petition to invalidate the decision of the Supreme Court ordering Ríos Montt´s candidacy suspended.  The serious safety risk to these high officials of the judiciary led not only to the evacuation of the Judicial Agency, but to the IACHR as opting, at the behest of the Solicitor for Human Rights and a local human rights organization, measures to protect the members of the Constitutionality Court that voted against the FRG complaints.  One such member had to be evacuated by air from his home because the building was mobbed by violent supporters of the FRG.  Other magistrates received death threats.  A week later, in a decision dated July 30, 2003, the Constitutionality Court ordered the Supreme Electoral Tribunal to register Efraín Ríos Montt as a presidential candidate and ordered the Supreme Court and all other authorities to reject in limine any appeal from that decision[43].

37.              The Commission is particularly troubled by indications of the key role played by the then President of the Congress in the above-described acts of intimidation against the Guatemalan judiciary.  During the press conference led by General Efraín Ríos Montt on Monday July 21, 2003, he warned that the rulings of the Supreme Court of Justice ordering the suspension of his candidacy could lead supporters of his party to engage in actions that might be beyond the control of the leadership.  As MINUGUA stated, "these statements were widely criticized and interpreted by some as veiled threats and even as an incitement to violence."[44]  According to the information reviewed by the Commission, a message from Efraín Ríos Montt was all it took to break up the demonstrations[45] and put an end to the disturbances.

38.              Indeed, according to MINUGUA's report on the disturbances in Guatemala City,

these took place on Friday, July 25, basically in front of the Supreme Court of Justice and the Constitutionality Court and were marked by constant attacks against the press reporters covering the events, who were stoned, beaten, harassed and chased to prevent them from doing their job.  At noon, after a message from Mr. Ríos Montt to his supporters asking them to go home, the crowd rapidly dispersed and boarded the buses that were waiting for them since the previous day to take them back[46].

39.              The Commission believes that independence and impartiality of the judiciary is an essential component of democracy and a fundamental part of the rule of law.  It condemns the violence of July 24 and 25, 2003 and voices concern over the serious consequences of using violent demonstrations as an improper way of pressuring the administration of justice in Guatemala, the application of the rule of law and the independence of the country's institutions

40.              In addition, the Commission takes the view that corruption is a serious form of improper influence on the judiciary, and that it affects as well the offices of prosecutors and security forces.  The complaints received about corruption in the Judicial Agency are deeply distressing to the Commission, inasmuch as the existence of corruption in the judicial branch of government not only undermines the administration of justice but detracts, insofar as the actions of judges may be the result of corruption, from the right of every individual to have access to an independent and impartial judge.

41.              Indeed, the Commission received information pointing to the existence in Guatemala of a political, economic and military power operating on a parallel basis to the State, which interferes in the proper administration of justice.  This political power is directly connected with the operations of illegal forces and underground security organizations, which are dealt with in chapter II of this report.

42.              According to information received during the visit, these illegal organizations influence the processing of most cases now being heard by Guatemalan courts, because they succeed in corrupting judges and law enforcement officials.  The people most hurt thereby are those with few economic resources, whose interests clash with those of persons wielding much greater power[47].

43.              The Commission welcomes the creation of the Anticorruption Commission for the Justice Sector in October 2002, and of the National Council on Transparency and Corruption in 2003; promulgation of the Law on Probity and Responsibility of Public Officials and the Law on Antijuicios (preliminary hearings); as well as ratification of the Inter-American Convention against Corruption.  The State reported that the Anticorruption Commission is comprised of the four entities that make up the justice sector, as well as by the media and civil society, and that it has telephone hotlines for facilitating complaints.

44.              The Commission notes the Code of Ethics and the holding of 10 workshops on the Code for 896 judges throughout the country.  The Board of Discipline and the Disciplinary System has investigated corruption complaints, conducted preventive visits to the General Superintendence of Courts and put into operation two new Management Centers to guarantee transparency in the assignment of cases.[48]

45.              The Commission also appreciates despite this progress, corruption as a means of coercion remains effective in practice and is aggravated by the absence of investigation, prosecution and punishment of perpetrators[49].  It is noteworthy in this connection that the Guatemalan government has not come up with a comprehensive policy to resolve or address the serious underlying problems of the judiciary, which include widespread corruption[50].

46.              Accordingly, the Commission urges the State to provide established agencies with the ability and the space required to study and combat the structural causes of corruption and urges it to effectively and immediately apply the existing international rules.

47.              There is an alarming number of threats, attacks and killings of judges, witnesses and other law enforcement officials, especially those involved in proceedings connected with organized crime and drug trafficking[51].  The effects of these threats is aggravated because, due to budget constraints, judges and magistrates at present do not have either the required security or the necessary life insurance.  This, in fact, led the Judicial Agency to train a special protection force[52].  These matters will be dealt with in detail in the appropriate chapter, but it should be noted here that these developments and the absence of adequate protection for the people involved discourage the quest for justice by legal means and jeopardize the independence and impartiality of judges as well as the proper operation of the judiciary and the effectiveness of the rule of law in Guatemala.  In this sense, a judge or a law enforcement official who works under threats and/or has suffered an attack, is severely limited in his sphere of action, not least because of the absence of the peace of mind and security required to administer justice.

48.              The Commission looked at the contents of the Judicial Career Law when it was passed and put into effect in 1999 and acknowledged at the time that it represented progress in recognizing the principle of respect for the independence and impartiality of judges[53].  To ensure their independence and impartiality, the State must put in place means of objectively evaluating judicial performance, laying down the conditions for appointing, disciplining and/or removing judges.

49.              There are mechanisms for evaluating and appointing judges in Guatemala[54].  The Judicial Career Law provides for the Institutional Proficiency Unit to evaluate the qualifications and performance of judges based on objective criteria and to determine, according to the results, whether a judge should be disciplined, removed from office or reappointed.  The Commission has learned, however, that despite these regulations the Supreme Court continues to make appointments after personal interviews, without necessarily taking into account the ability and merit evaluations done by the Institutional Training Unit[55].  This way of applying these tools amounts to interference in the independence of the judiciary, weakens confidence in the law and the usefulness of regulations in force.

50.              As for disciplinary penalties, the Commission received information on the operation of the Disciplinary Judicial Board set up in 2000 and on the activities carried out by the Disciplinary System Unit[56].  For example, in March 2000 two judges of the Court of Appeals of Coban were suspended for three months for releasing two drug traffickers.  In addition, the Judicial Agency approved the System of Evaluation, Performance and Professional Behavior of Judges and Magistrates and held 16 seminars to publicize the system nationally. Sixty six judges were reviewed under the Process of Evaluation of Performance and Professional Behavior[57].  In a meeting with civic groups, the Commission was told that this evaluation sought to reappoint judges whose mandates were expiring and that there were 17 judges whose contracts were not renewed[58].  It was also reported at that meeting that in these evaluations the Supreme Court applied subjective criteria to decide on the appointment and removal of judges, in violation of internal regulations that call for an analysis of objective criteria to adopt such decisions.  Furthermore, the Commission ascertained that judges were evaluated whose constitutional periods had not yet expired, and that there was an absence of transparency in the means available to challenge the decisions of the Judicial Career Council[59].

51.              The Commission urges the State to continue its efforts toward a more fair and efficient judicial system. It notes that the current disciplinary system is better than the previous system.  Although the disciplinary system provides for a set of objective criteria, the Commission learned that subjective criteria actually prevail in the imposition of administrative penalties.  Removal of judges on the basis of subjective considerations affects the proper application of mechanisms for disciplining, appointing and removing judges that are prescribed by internal regulations.  Clear criteria must be established to diminish the weight of subjective considerations by the person making the appointment of judges and magistrates and evaluating the imposition of disciplinary measures, so as to increase transparency and objectivity in applying the Judicial Career Law and decrease the role that corruption might play in these decisions.

52.              According to Article 208 of the Political Constitution, judges in Guatemala are appointed for five years and may be reelected[60].  During its visit, the Commission was given information about the instability of judges in their offices.  The judges themselves contend that extending their term of office would give them more independence.  Judges are subject to removal at the end of the five-year period, as well as to transfer.  Although transfers are authorized under internal regulations, in practice legal safeguards are not observed (that is to say, that the transfer should be justified, that the judge should have an opportunity to be heard, among other safeguards)[61].  The information received by the Commission shows that the key problems are actually due to a failure to apply the Judicial Career Law and to a lack of efforts aimed at bringing about the constitutional amendment needed to extend the mandate of judges[62].  The Commission is concerned because the five-year term of judges is too short a period and runs counter to the principle of tenure of judges, which derives from the requirement of independence and impartiality established in Article 8 of the American Convention[63].  The Special U.N. Rapporteur on the independence of judges and attorneys held that:

A fixed period of five years open to reelection, as prescribed by Articles 208 and 215 of the Constitution, does not provide the security required by the office holder and might be incompatible with the principles of judicial independence established in Article 203 of the Constitution and Principle 12 of the U.N. Basic Principles on Independence of the judiciary[64].

53.              In the Peace Agreements, particularly in reference to strengthening civilian power and to the role of the Army in a democratic society, the State undertook to endow the Judicial Agency with more financial resources, so as to help it modernize technologically and expand its coverage to the interior of the country.  During its visit, the Commission received information indicating that the budget assigned to institutions that deal with the administration and enforcement of justice continues to be insufficient.  The budget in 2002 was 4.4 % lower than in 2000[65].  The decrease seems unconnected with a total decrease in the budget of the State, inasmuch as, for example, the Ministry of Defense has enjoyed budgetary increases over the past two years.

54.              Distribution of public expenditure appears to indicate a prioritizing of certain expenditures to the detriment of the judiciary and internal security, among other areas.  The total budget for the Judicial Agency in fiscal year 2003-2004 is Q 639,027.653 million, which according to officials in the judiciary and the Department of Justice is not enough to cover the needs of the agencies they represent[66] and is not equivalent to 2 % of the budget that should be allocated to the Judicial Agency under the Peace Agreements[67].  An analysis of the budgetary situation in the judiciary from 1998 to 2002 concluded that:

Institutions as a whole experienced a budgetary increase from 1998 to 2001.  What stands out is the pace of growth in public spending in the Judicial Agency and the National Civil Police (...) The increase has been slowing and all indications are that 2002 has been an inflection point; most data show that 2002 marked a stagnation or regression of public spending in the judiciary, especially in the Department of Justice and the National Civil Police, which aggravated the situation in prisons.  (...) The proposal for 2003 consolidates the trend to cut back and decrease public spending on the judiciary that began in 2002[68].

55.              The Commission underscores that budgetary limitations may be regarded as interference by the legislative branch in the functions of law enforcement officials[69] and that, in any case, they stand in the way of modernization, efficiency and access to justice by large sectors of Guatemalan society, while obstructing the protection of law enforcement officials.  In addition, they impede adequate remuneration of judges, which also influences their independence[70].

56.              The Commission takes the view that the State must supply the resources needed for the proper operation of the judiciary and calls on the authorities to improve transparency and efficiency in public spending in the justice sector.  Both the National Commission on Monitoring and Supporting the Strengthening of Justice, and the U.N. Special Rapporteur on the Independence of Magistrates and Lawyers, as well as this Commission, have underscored many times the importance of providing the justice system in Guatemala with an adequate budget.  This is a necessary condition for combating impunity and guaranteeing to all inhabitants of Guatemala equal access to justice.  In addition, it is essential that the Guatemalan State be able to count on an effective system of justice to protect individual rights, contribute to secure social peace and strengthen democracy in the country.

D.        Access to justice

57.              A basic precondition for guaranteeing the effectiveness of the judiciary is unrestricted access to speedy and effective justice.  At present, the great majority of the population in Guatemala has no access to the judiciary.  This is due largely to a lack of government facilities throughout the country, insufficient infrastructure and training for members of the Judicial Agency, and a shortage of translators and members of the judiciary and law enforcement institutions that know the indigenous languages and culture.  The Commission has recognized in the past the efforts made by the Government to modernize filing procedures, train members of the National Civil Police, the Office of the Prosecutor and the Office of the Public Defender and establish new disciplinary mechanisms in the judiciary[71].  However, access to justice in Guatemala remains precarious.

58.              There are government efforts to establish civil institutions (police and courts of law, among others) in areas of weak government presence during the armed conflict.  The State is expanding, constructing and remodeling buildings for the judiciary, which has made it possible to build justice of the peace courts, judicial complexes[72], regional justice centers[73] and Centers for the Administration of Justice (CAJ)[74]. Juvenile Courts and High-Impact Crime Courts were also built, as well as Mediation Centers.  In March 2002 six justice of the peace courts were established in Dolores, San Luis, San Andrés, San José, Santa Ana and La Libertad; in the Department of Petén[75]. The State reported in its observations that it has also instituted mobile justices of the peace for hearing minor cases, one in Guatemala City and the other in Quetzaltenango.  It noted that the Supreme Court of Justice has a National Documentation Center (CENADOJ) that provides ready public access for consultation of statistical information, legislation and jurisprudence.  As well, access to free justice, in the language of the local community, has been promoted by the establishment of a great many tribunals (151 chambers in 89 courts,), particularly in the country's Northwest, where indigenous people are in the majority.  In terms of infrastructure, the State reported that 36 courts have been established as a result of Decree 75-97 of the National Congress.  The Commission welcomes these initiatives, noting however that several of them had to be suspended for budgetary reasons[76], and that despite these gains in the structure of the judiciary are not enough to resolve the issues raised in this chapter.

59.              The Commission notes that, although the jurisdiction of justices of the peace has been expanded, they do not benefit from the protection, training and material resources needed to do their job. Also needed is an expansion of the activities of the Justice Department and the Public Defender, so that they may unclog the courts without detracting from the basic rights of citizens.  The State has reported that mobile justices of the peace will begin operations in the first quarter of 2003[77].  The Commission has received no information on whether this initiative has actually been implemented.

60.              At the same time, 22 Mediation Centers were opened throughout the country[78], to be followed by another 48.  Most of the cases handled by the centers are civil matters, some criminal and a small percentage are labor cases.  Total staff at these Centers number 44 mediators, 11 of whom speak the Mayan language, and 15 assistants, five of whom speak Mayan[79].  The Commission urges the State to take specific steps to ensure the validity of the settlements reached in these Centers.  The State also reported that at present there are 558 bilingual auxiliary judges and justice administrators, for purposes of offering better access to judicial services, and that 43 additional interpreters were hired between October 2002 and September 2003.

61.              Centers for the Administration of Justice (CAJ) were also established and staffed with personnel from the National Civil Police, the Justice Department, the Office of the Public Defender for Criminal Cases, legal aid societies [bufetes populares] and the Administration and Mediation Center in Quetzaltenango, Nebaj, Santa Cruz, Santa Eulalia, San Benito, Zacapa and Escuintla.  According to information received in 2003, CAJ's will be completed in Santiago Atitlán, Ixchiguán, and Playa Grande.  The effectiveness of these Centers is weakened, however, by a lack of interinstitutional coordination, a shortage of bilingual personnel, limited experience on the part of justices of the peace, and an absence of criminal defense services because of budgetary restrictions[80].  During its visit, the Commission visited Nebaj, where the CAJ was beginning to operate, and learned of the difficulties faced by its staff, in particular the lack of resources and personnel needed for proper operation.  The Commission urges the State to provide the means for implementing the measures designed to effectively unclog the judiciary while protecting individual rights.

62.              The State advised the Commission that the Judicial Agency is aware of the multiplicity of cultures and recognizes customary indigenous law through the operation of five community courts[81].  Nevertheless, the Commission notes that the State has yet to fulfill its obligation to introduce and apply a system that provides for and protects cultural diversity, as well as mechanisms intended to recognize the handling of internal matters by indigenous communities in accordance with their traditional rules, using international rules on human rights as a benchmark.  In the chapter of this report dealing with the rights of indigenous populations, the Commission will address this topic, as well as the need to train the staff of the judiciary in indigenous cultures and identities and to guarantee the availability of interpreters in judicial proceedings.

63.              In view of the persistence of specific problems affecting the justice system, the Commission urges the State to provide the human and material resources needed to implement measures that will effectively facilitate access to justice by the entire population.  In particular, measures are needed to alleviate the excessive workload of the courts, expand the use of systems intended to modernize case filing and control over dossiers, decrease delays in resolving cases as well as corruption in their processing, allocate a sufficient budget to the Judicial Agency and ensure access to justice by indigenous populations.

64.              With respect to the lack of funds for strengthening the judicial system and other fundamental services targeted at excluded and dispossessed social sectors, the State indicated in its observations the need to "increase the State revenue budget, a goal that has been impeded by the business sector and its organizations, which have lodged more than 70 appeals for amparo and unconstitutionality in order to disrupt the fiscal reform.  Pursuant to the Peace Accords, the Guatemalan State is attempting to make the taxation system more effective and efficient in order to meet the social goals (in justice, education, health, housing, security etc.) stipulated in the Constitution.  The Peace Accords call for raising the fiscal burden to 12%.  The current government has pursued that task, raising the fiscal burden to 10.6% through its taxation policy, and it has come close to achieving the target established in Accords.  Increasing tax revenue is indispensable if the State is to serve as the social and economic balancing agent, as required for consolidating the rule of law".

E.         Auxiliary institutions in the administration of justice

65.              An effective and legitimate administration of justice must be able to rely on a sound system of criminal investigation through a properly operating Justice Department.  In Guatemala the National Civil Police (PNC), through its Criminal Investigation Service (SIC), helps the Justice Department discharge its judicial investigative function.  For the administration of justice to function effectively and legitimately there must be a proper system of criminal investigation, with a properly functioning Ministerio Público (Attorney General’s Office or Office of Public Prosecutions).  In Guatemala, while the National Civil Police (PNC) is part of the Ministry of the Interior, its Criminal Investigations Department (SIC) assists the Ministerio Público in conducting criminal investigations, as an auxiliary institution of the public administration and the courts.  According to the Constitution and its own organic law, the Ministerio Público is independent in its functions, such as investigating crimes and conducting prosecutions.[82]

66.              The Justice Department has an excessive workload but no qualified investigators or adequate training.  In addition, the State reported that Justice Department resources are precarious[83]; for this reason, it operates in only 10% of Guatemalan territory and has one prosecutor for every 75,000 inhabitants.  Each prosecutor handles an average of 1546 cases.  The number of complaints received annually in recent years ranges from 200,000 to 250,000, which, according to information provided by the State, means that only Q1,540 (US$ .190) can be devoted to investigating and prosecuting each case [84]  During its visit, the Commission was told about plans to restructure and strengthen the Justice Department, to design a crime policy that will be democratic in nature, as well as other institutional policies[85].  In any event, this has not yet translated in practice into specific results.

67.              One of the special tasks of the PNC that actively contributes to combating impunity is its criminal investigation activity through the SIC.  The Commission mentioned in its Fifth Report on the status of human rights in Guatemala that there were problems in selecting people for these jobs, owing to a lack of training required to perform certain more complex tasks[86].  At present, SIC offices suffer from a shortage of the infrastructure, equipment and materials required for judicial investigations[87].  This results in an absence of proper documentation in criminal investigations and inadequate processing of crime scenes.

68.              The Commission learned about coordination, communication and cooperation among the various agencies involved in the administration of justice, particularly between the PNC, the Justice Department and the judiciary.  As MINUGUA put it,

As in any system, when a component does not work properly the operation of all other components is affected; in other words, the police, prosecutors and judges do not work in isolation[88].

69.              The Commission received information on the interinstitutional cooperation of the Justice Department with various local and international organizations in 2002 and 2003[89].  The Commission notes that the results of these efforts are incipient, and urges the State to take appropriate steps to allocate the resources needed for these and other cooperation agreements to bear fruit.

70.              As for investigations, there is a division of labor between the Justice Department, which directs investigations, and the PNC, which carries them out.  Nevertheless, the Commission is concerned about the lack of clarity in the law governing the agency empowered to conduct judicial investigations.  This results in disputes between the Justice Department and the PNC, duplicating investigative efforts.  Accordingly, the Commission calls on the State to put in place coordination mechanisms between the Justice Department and the PNC, to enact in this area clear legislation that will resolve the problem, and to allocate the resources needed for judicial investigations to be more effective, avoiding overlapping activities.  Furthermore, the Commission stresses that the PNC must be necessarily subordinated to the agencies responsible for the administration and procurement of justice in this area.

71.              The Commission also learned that the military continue to take part, along with the PNC, in investigations of certain crimes, particularly cases connected with drug trafficking and organized crime[90].  Because civilian intelligence lacks the funds, military intelligence replaces it in certain investigations[91].  Despite assurances from the State that there is no connection or cooperation between military and civilian intelligence, the Commission received information on intelligence activities carried out by the recently dissolved Presidential General Staff[92].

72.              The Civilian Information and Intelligence Analysis Department (DICAI) and the Strategic Analysis Secretariat (SAE) were established to strengthen civilian intelligence.  Also proposed is a Law on Control of State Intelligence, which is making its third round through Congress.  However, the practical results of these initiatives are yet to be seen and military intelligence continues to do work that belongs to civilian intelligence.  The Commission believes that it is necessary to completely eliminate the role of military intelligence in judicial investigations and urges the State to implement the mechanisms planned and intended to strengthen civilian intelligence, so that it may fully perform its function[93].

73.              Insufficient resources is one of the structural problems affecting proper operation of the Justice Department.  Although the General Prosecutor had requested Q 700 million to conduct effective and responsible criminal prosecutions, the budget assigned to the Justice Department in 2003 is Q 398,789.180 million[94].  About the budget of the Justice Department, the Myrna Mack Foundation had this to say:

The budget of the Justice Department has been rising year after year in the period under review (1998 to 2002); however, the increase has been declining and everything indicates that, as in all other institutions connected with justice, 2001 and 2002 mark a stagnation or retreat in spending on the Justice Department.  More than 20 % of spending on the Justice Department has been financed by cash on hand, which is unsustainable over the medium and long term (...) In real terms, the Justice Department in the proposed budget for 2003 shows a decrease of Q 21 million from the budget approved in 2002[95].

74.              The Commission also learned about the current performance of the various specialized Fiscales.  In its observations on this report, the State referred to the creation of new prosecution services and the strengthening of existing ones for combating organized crime, and it cited as examples the prosecution services against corruption, organized crime, money-laundering and administrative crimes, and the special Fiscal for women.  The State also noted the creation of the Fiscal for Human Rights, the Fiscal for Indigenous People's Rights, the Fiscal for Children and Adolescents, and strengthening of the Fiscal for Journalists and Labor Union Affairs.

75.              The Commission believes that success in combating impunity depends largely on the effectiveness of the investigative mechanisms and consequently supports the establishment of Special Prosecutors when necessary.  However, despite the introduction of these Special Prosecutors, few gains are visible in many criminal investigations, particularly those connected with threats and attacks against law enforcement officials and journalists.  In this connection Amnesty International said:

Some of the new entities that have been announced, such as the Special Prosecutors, have not made a substantial difference in the ability of the judiciary to effectively investigate crimes against specific segments of society, and some have never even begun operating (...) These entities appear to suffer from a lack of political support and a serious shortage of resources.  The delegation concluded that the resources and training of special prosecutors appear to be inadequate for them to perform their appointed tasks.  Indeed, it did not seem as if real efforts were being made in all cases to comply with the mandate of each prosecutor[96].

76.              One reason why prosecutors are unable to fully discharge their duties is the lack of resources. The Commission has a special interest in the investigation of threats and attacks against human rights advocates, which will be dealt with in the relevant chapter of this report, and urges the General Prosecutor to provide the Office of the Special Prosecutor for Human Rights with the resources and support it needs to do its job.

77.              The Organic Law of the Ministerio Público provides that prosecutors must be appointed through a specific mechanism.  Candidates must be drawn from special lists; they must successfully complete a training course, and positions are to be assigned on the basis of those results.  This law ensures greater transparency in the appointment of prosecutors, by guaranteeing that candidates selected will be suitable to their position, and that they can conduct their work independently.  It also provides an appointment system that offers greater legal security.  In its observations on this report, the State referred to creation of the Training Unit of the Ministerio Público (UNICAP), as the basis for strengthening the judicial profession, as well as introduction of the Computerized Monitoring System of the Ministerio Público and creation of the University Center for Justice Officials and Prosecutors, which will provide postgraduate training and technical upgrading at the university level.

78.              In terms of law enforcement personnel, the State reported that it addressed this issue at the end of 2002, and announced a new recruitment drive in January 2003; prosecutors, prosecution agents, auxiliaries and officials were appointed and installed from the 2001 competition, persons who participated in the 2002 competition were appointed and installed; and approximately 200 new positions were created.  During its visit, however, the Commission was informed that personnel of the Ministerio Público continued to be appointed by contract, without fulfilling the legal requirements, because of the "urgency" of meeting these needs. [97]  Appointments in this manner are contrary to the purpose of the Organic Law of the Ministerio Público, and impede its proper functioning.  The Commission urges the State to continue its efforts to professionalize the Ministerio Público, and to comply with administrative regulations for guaranteeing transparency in work assignments, and the selection of the most qualified candidates.

F.         Public defenders

79.              In Guatemala the Criminal Public Defender Institute (IDPP) provides free legal assistance in criminal cases to low-income people, whereas legal aid entities at universities do the same for civil and labor matters.  The establishment of the IDPP in 1998 as an autonomous institution is a step toward a good public defense system intended to properly safeguard the principle that the defendant is innocent until proven guilty.  In practice, however, many indigent people still have no legal representation.

80.              At present, the criminal defense service suffers from severe budgetary restrictions and a lack of training of Public Defenders[98].  The budget of the Criminal Defense Institute in 2003 is Q 57,194.683 million, which is higher than in 2002 but lower than in 2001[99].  This causes serious difficulties in continuing several vital programs such as the Ex Officio Defender, its presence in the Centers for Administration of Justice, in the offices of Defenders at Police Stations and in the offices of Ethnic Defenders[100].  The State reported that the judiciary had to transfer to the office of the Public Defender USD 400.000 from a loan provided by the Inter-American Development Bank to continue its work.  The Commission received information according to which the IDPP collapsed in March 2003 because of lack of funds.  As a result, 250 lawyers had to be laid off, which means that every lawyer must now handle 500 cases[101].  Consequently, there are now 100 public defenders, 22 of them in the city of Guatemala.  The number of cases that each public defender must handle is extremely high and makes it impossible to provide Guatemalans with an adequate public defense.

81.              A public defense service is essential to improving access to justice by all citizens.  The Commission notes that the situation in Guatemala compromises the rights of individuals; it urges the State to provide the resources needed for the criminal defense system to operate properly.

G.        Modernization of justice

82.              The information received includes government initiatives designed to modernize the judiciary.  The State has introduced electronic data systems in the courts and seeks to expedite trials in the noncriminal divisions of the Court of Appeals, in the Juvenile Courts and in the courts of Quetzaltenango, Escuintla and Huehuetenango[102].  In addition, internal communications within the Judicial Agency have been strengthened through bulletin boards, a newsletter on the progress of judicial reform and a newspaper published by the Judicial Agency.  As for external communications, a web page has been created, radio programs in Mayan and Spanish are being promoted, and informative presentations on these issues are being made to government and private entities and international organizations[103].

83.              The National Center for Judicial Analysis and Documentation (CENADOJ), which seeks to improve the compilation of laws and case law, the collection, analysis, processing and publicizing of decisions, the establishment of libraries for magistrates and judges, and judicial statistics, opened for business on January 1 2003[104].  There was also an improvement in the equipment of administrative units, and a system allowing faster retrieval of criminal records was installed in 18 branches.  This system provides technological security and records and connects 18 departments.  The Supreme Court also opened centers to receive and record information.  Computers were used as well to provide distance training for law enforcement officials[105].

84.              The Commission believes that data processing improvements in the justice sector, while important, do not in themselves amount to actual modernization of the administration of justice, which may require substantial reforms if it is to become a truly modern system.  Implementation of these kinds of modernization measures does not ensure the proper functioning of the judiciary; steps must be taken to offset the other weaknesses described in this chapter.  The State must continue to take those steps and design other measures to achieve better results.

H.        Training of members of the Judicial Agency

85.              In view of the weak initial training of certain judges in Guatemala, the Judicial Agency must provide subsequent training for its members.  The Institutional Training Unit trains judges and coordinates the training activities of the Modernization Unit of the Judicial Agency, the United Nations Development Programme, UNICEF, MINUGUA, the United States Embassy and the Office of the High Commissioner for Human Rights[106].

86.              The Commission stresses the need to continue training members of the Judicial Agency. Training must be sustained over time, so as to improve the quality of participants and include greater numbers of law enforcement officials.  On the other hand, the training now being provided lays greater emphasis, generally speaking, on theory than on practice; there is no adequate institutional follow-up and training is disrupted by staff rotation[107].  The Commission urges the State to adopt an improved educational strategy to take account of these factors, in order to ensure proper training for all members of the Judicial Agency.

I.         Conclusions and recommendations

87.              The institutions administering justice in Guatemala play a fundamental role in the democratization of the State and must comply with international treaties, constitutional provisions and the commitments assumed under the Peace Agreements.  The situation described shows that the State has not fully complied with its obligations in this area.  The judicial branch of government does not yet guarantee to a majority of Guatemalans their individual human rights by investigating complaints and identifying and punishing those responsible for past and present violations of human rights.  The inability of the Guatemalan State to provide an adequate and efficient system of justice administration and an independent and impartial judiciary bars access by Guatemalans to justice.  Without an administration of justice that is strong and respectful of fundamental individual rights it is impossible to achieve the democratic strengthening of the State and the rule of law that Guatemala requires.

88.              The above analysis leads to the conclusion that the deterioration in the administration of justice of Guatemala produces a continual violation of the individual rights of its inhabitants and threatens the country's democratic institutions.  This is aggravated by the systemic and structural impunity that pervades the Guatemalan justice system.  In line with this analysis, and to contribute to the search for solutions capable of reversing this situation, the Commission recommends the following to the Guatemalan State:

1.       Take the necessary steps to combat the structural impunity affecting the Guatemalan justice system.  In this connection, implement measures designed to prevent the covering-up of officials involved in investigations of organized crime and violations of human rights.  In addition, reinforce the measures taken to remove from public and military office persons who took part in violations of fundamental human rights during the armed conflict.

2.       Continue the process of modernizing the judiciary through data-processing methods, especially the gains made in filing cases and controlling dossiers, so as to cut down on delays and corruption in the handling of cases.  Supplement modernization with other initiatives such as further enlargement and remodeling of judicial facilities throughout the country.  Couple these measures with steps designed to protect, train, provide resources and legitimacy for justices of the peace, the Centers for Administration of Justice and the Mediation Centers established in the interior of the country, with a view to insuring their effectiveness.

3.       Continue training members of the Judicial Agency and introduce ongoing training programs with a broader scope in terms of their subject matter and participants, along with adequate institutional follow-up.  In particular, these training programs should provide education on indigenous cultures and identities.  In addition, train public defenders and prosecutors so that they may play their part in the judicial system.

4.       Step up efforts to facilitate equal access to justice for all, particularly by providing interpreters of indigenous languages, so as to guarantee the right to a proper judicial hearing.  In the same connection, enact the regulations needed for indigenous communities to be able to apply their community law where such application does not violate international law and meets local needs.

5.       Establish institutional communication, coordination and cooperation mechanisms among the various agencies involved in the administration of justice, especially between the Justice Department, the National Civil Police and the judiciary, so as to avoid overlapping functions; and take the measures needed to implement such mechanisms.

6.       Improve the recruitment and training of members of the Criminal Investigation Service of the National Civil Police and provide them with the material resources needed to perform their investigative duties, strengthening their ability to protect crime scenes and the evidence collected in them.  To this end, put an immediate and complete stop to the role played by the military in this area.

7.       Guarantee the independence and impartiality of judges and law enforcement officials.  Accordingly, design mechanisms to avoid internal and external pressures on judges and law enforcement officials, especially those working on cases that involve violations of human rights, corruption and drug trafficking.  In addition, impose criminal and disciplinary penalties on law enforcement officials who commit acts of corruption, persons who exert improper pressures in order to secure the disposition of judicial cases in a manner favorable to their interests, and members of other government agencies or civilians who improperly interfere in the administration of justice to secure their private interests.  Furthermore, take steps to make sure that these events do not recur.

8.       Investigate complaints of threats and attacks against judges and law enforcement officials, punish those responsible and provide adequate protection for judges and law enforcement officials, so that they may discharge their duties without fear of reprisals.  Apply the Judicial Career Law adequately and transparently and promote the coherent and effective application of procedures to discipline, promote and remove judges.  Correctly apply the legally established policies on recruitment, removal and promotion to the Criminal Defense Institute and to the Justice Department.  Adopt such legislative and constitutional measures as may be needed to extend the five-year term of office of judges consistently with the principle of judicial independence.

9.       Increase the budget assigned to the judicial branch, to the Criminal Public Defender and to the Justice Department, making it possible to put in place a judicial system consistent with international standards and the Peace Agreements.

10.     Provide more funds to the Public Defense Institute and train public defenders and prosecutors, so that they may play their part in the local judicial system.

11.     Avoid the unproductive processing of legal actions intended to obstruct justice.  To this end, make sure that judges correctly evaluate the admissibility requirements of such actions, that they observe the time frames established for processing them, and that they verify that such actions have not been filed on the same legal basis and/or for the same events as complaints already disposed of.  In addition, impose appropriate penalties on court officials who improperly process such legal actions designed to obstruct the proper administration of justice and insure impunity.

12.     Allow access by law enforcement officials to information held by the State that is needed to process cases in their jurisdiction.  In this connection, take steps to bar government agencies from arguing a "State secret," except in cases where this is truly needed for the protection of national security.

13.     Solve cases of human rights violations committed in the past that remain unpunished, punish those responsible for them and compensate the victims.