October 12, 1993
PETITION OF THE COMPLAINANT
March 4, 1991, the Commission received a petition transmitted to the
Government on March 5, 1991, in which the petitioner, José Efraín
Rios Montt, filed a complaint against the Guatemalan Government for
alleged violations of the American Convention on Human Rights because
of the effects of the various resolutions and acts of the judicial,
legislative and executive officials of the Government that declared
his candidacy to the Presidency of Guatemala inadmissible.
petition recounts the political background of Mr. Rio Montt from the
year 1974, and states that on march 23, 1982, at the request of
military officers, he was called upon to preside over the de facto
government established by them, a call he accepted by assuming the
position of chief of state. It
states that during the period when the 1986 Constitution was in force,
the penal code stipulated punishment for crimes of changing the
states that the de facto government headed by him suspended the 1966
constitution and recounts how government posts and institutions were
the fight against subversion.
notes that on August 8, 1983, the President of the Republic was
deposed by another military coup, and the post was taken over by his
Defense Minister, General Oscar Mejia Victores.
Mr. Rios Montt then remained in Guatemala without being
molested or accused or tried for the crimes provided for in the penal
code on changing the constitutional order and other offenses arising
from his exercise of the de facto presidency.
states that the Chief of Government, General Mejía Victores issued a
decree of amnesty, a decree considered valid and in force by the 1985
Constituent Assembly. Mr.
Rios Montt took advantage of that amnesty in running in the 1990
says that the Constitutional Convention prepared and enacted the 1986
Constitution now in force, which contains limitations on access to the
presidency of the republic, banning reelection to the presidency and
providing in Article 186:
the following may not hold this office:
leader and chiefs of any coup d'etat, armed revolution or similar
movement that changes the constitutional order, nor those who become
head of the government as a result of such actions.
petition states that in 1990 various parties supported his candidacy for
the presidency, and drew up a slate of candidates that included him and
70 other persons for the posts of Vice President, deputies and
alternates to the National Congress and the Central American Parliament.
It also states that the election officials, that is, the
Registrar of Voters List and the Supreme Electoral Tribunal refused to
register those candidates, and that he filed a complaint of
constitutional rights violation (recurso de amparo) with the
competent courts. It
contends that at that time the National Congress tried to intimidate him
by requesting an advisory opinion from the Constitutional Court on
whether the Constitution prohibited him from serving as President or
Vice President of the Republic. It
also states that the Congress tried to file a political suit against the
President of the Supreme Court, Dr. Edmundo Vazquez Martinez, to prevent
that justice from granting the writ filed with it.
states that the Constitutional Court handed down the decisions requested
of it by ruling that such a ban is categorical and permanent (at any
contends by way of background information that the Congress, in an
effort to obstruct his right to defense, reduced from 30 to 5 days the
period for appealing the decisions of the Supreme Electoral Tribunal,
thereby depriving him of his right of due process.
It acknowledges that his right to file a complaint under the
America Convention regarding those actions taken in 1989 is precluded
because more than six months have elapsed.
the "facts, grievances, and legal remedies exhausted", it
states the following):
by the Office of the Manager of Voter Registration in August 1990 to
enroll the complete slate of candidates for the Presidency containing
the candidacy of himself and the 70 other candidates.
resolution of the Supreme Electoral Tribunal (T.S.E.) also of August
1990 (file 1309), rejecting the appeal for reversal of the refusal
mentioned in a), filed by the parties running candidates in the election
and by himself; also the
resolution of the same T.S.E. rejecting the motion to reopen the case
contesting the previous resolution.
and interrelated appeals for violation of constitutional rights (recursos
de amparo) filed in September and October 1990 with the Supreme
Court of Justice. It states
that three appeals were filed: 1)
by the political parties and the appellant as third party, ruled upon
October 12 and 19, 1990 regarding the substance of the appeals.
2) By the appellant
in his personal capacity and as candidate for presidency.
On those same dates, the court rejected their claim to the right
to challenge as void the resolutions of the electoral officials.
3) The appeal for a
ruling of unconstitutionality before the Constitutional Court, was
rejected by the Court on October 17, 1990.
the appeal for violation of constitutional rights (amparo) mentioned
in no. 1, the petition states that after the proceedings and
hearings under the law, the Supreme Court handed down a ruling on
October 12, 1990 denying the appeal and terminating the provisional amparo
appeal suspending the elections, which it had granted one month before. In that ruling, the Court clarified the pre-eminence of the
American Convention on Human Rights and declared that the Constitution
of Guatemala is in agreement with Article 23 of the American Convention
on Human Rights, since the Convention allows limitations. The Court also held that, regarding the application of this
grounds that it was not making a retroactive application of the
Constitution but instead was making a "deferred application"
of it, which in its judgment is in agreement with the nature and scope
of the Constitution. The
Court concludes that as a candidate he is in the position provided for
in Article 186 a, and accordingly is ineligible.
12. The petition
contends that the Court's interpretation of the Constitution was
mistaken because its interpretation was "restrictive" instead
of "extensive" and "it should have analyzed the precept
identified within the applicable normative context instead of in
remedies of amparo filed with the Supreme Court and the
Constitutional Court, in his
personal capacity and as a candidate. (Mentioned as item 2).
The petition states that the Supreme Court rejected his appeal
for not having been accorded the right to due process and self-defense,
with the Court contending that the parties running candidates exercised
unlimited defense of the presidential candidate, as well as the defense
of the other candidates.
The Constitutional Court confirmed the Supreme Court's ruling,
holding that candidates do not register their candidacy in their
personal capacity but that it is the political parties that nominate
them as candidates, so that it is up to the parties to assert the right
of legitimacy and challenge the actions of the electoral officials.
The petition contends that this ruling creates a new legal
definition of legal representation, not provided for in the American
Convention on Human Rights or in the Guatemalan Constitution, namely, ipso
jure representation by the political parties of the candidates who
run for office in the general elections, thereby depriving them, also ipso
jure, of their personal right of defense in court.
appeal before the Constitutional Court mentioned as item 3), the
petition states that, after rejecting motions of unconstitutionality and
of dismissal for lack of jurisdiction, the Court ruled on October 19,
1990 that the motion for amparo was denied.
In its ruling, the Constitutional Court essentially upheld the
Supreme Court's decision mentioned in paragraph 10.
violations of the Convention
petition contends that both in his personal capacity and as a candidate
for president of the Republic, the provisions of the various organs of
the Guatemalan Government violate in his case the right to a fair trial
and guarantees of judicial protection (Article 8, subpar. 1 and 2; and
25 American Convention on Human Rights) and impartiality of the
administration of justice (Article 31 of the American Convention on
petition also alleges violation of the guarantee in Article 9 of the
Convention because of application of an ex post facto law
enacted, that is, Article 186.a of the Constitution, making it
also asserts that the Guatemalan law violates Article 23 subpar. 1 and 2
of the American Convention on Human Rights, by establishing for life the
restriction on his political right to be elected to public office.
petition also states that Article 186.a involves a dual penalty, because
there are legal provisions in the Penal Code on changing the
constitutional order that could have been applied before employing
amnesty, and they were not applied, and they were released from doing so
by the use of amnesty. It
states further that application of the grounds of ineligibility of
Article 186.a involves another penalty.
Mr. Rios Montt states in this regard:
"The country's law can of course prohibit the candidacy of
citizens who have held the post of President of the Republic, Chief of
State or Head of Government by virtue of a prior election or a de
facto situation, for a specific time, and in that case, such a
restriction would be general and nondiscriminatory. However, when this action is taken as a penalty, that
violates the general principles of law and of the Convention."
petitioner contends finally that the right of Guatemalan citizens who so
desired to elect him as president of the republic was being violated.
petitioner accompanies his demand with documentation of the procedural
acts and legislation indicated, and with press material regarding the
facts set forth in his petition. This
documentary material was completed by the petitioner on March 22 of this
year, and that additional information was forwarded to the Government on
OF THE GOVERNMENT
17. On April 22,
1991, the Government replied by confirming the dates of legal
proceedings and elections indicated by the petitioner, and the various
domestic remedies utilized by him, and pointed out in this regard:
the laws applied to resolve these legal proceedings, and the
reasoning, facts and conclusions of the above mentioned courts in their
final decisions are clearly expressed in their rulings.
The Government also state that "...the arguments set forth
by Guatemalan citizen José Efrain Rio Montt before the Commission are
the same as those he made before various Guatemalan officials", and
the fact that their rulings have not been favorable does not imply a
denial of justice. The
Government considers that in all these acts no violations of human
rights occurred, neither of those universally recognized nor of those
stipulated in the Constitution and the American Convention.
It asks that the petition be declared inadmissible because it is
unfounded and baseless.
The Government's reply was forwarded to the petitioner on May 21,
1991. The Government sent
the Commission press material on the case and copies of some of the
REPLIES OF THE PETITIONER
the petitioner and his attorneys reiterated their arguments in hearings
held in successive sessions, requesting a prompt settlement of their
In those hearings, the petitioner elaborated on the arguments
already put and also presented an Amicus Curiae brief that Dr.
Francisco Villagran Kramer had filed with the Constitutional Court
supporting his position.
REGARDING THE MERITS OF THE CASE
19. The right to
be a candidate in a political election arises from Article 23 of the
American Convention on Human Rights, which recognizes the rights of each
individual: a) to take part in the conduct of public affairs, directly
or through representatives; b)
to be elected; and c) to have access, under general conditions of
equality, to the public service.
This article also establishes limits on the regulations that the
State can impose on these rights and opportunities; it may limit them
only on the basis of age, nationality, residence, language, education,
civil or mental capacity, or sentencing by a competent court in criminal
20. The central
issue the Commission must address is the following:
Is the permanent ineligibility established in the Guatemalan
Constitution in Article 186 regarding heads of political movements that
breach the constitutional order or take over the leadership of the State
as a result of such breach consistent with this Article of the
Convention and its supplementary articles?
Commission should consider this question on three levels:
one, the Convention as a whole and its relationship with the
other principle instruments of the inter-American system;
Second, in the context of Guatemalan and international
constitutional law; and finally, in light of the juridical circumstances
that constitute and surround the decision of the Government in not
accepting the candidacy of Mr. Rios Montt.
22. As to the
first level, the Commission should take into consideration primarily the
basis of the Supreme Court ruling in denying the petition of Mr. Rios
Montt. The Supreme Court
acknowledges the primacy the Guatemalan Constitution itself accords the
American Convention on Human Rights in the domestic legal system.
Based on this recognition, the Court interprets Article 32 of the
Convention as establishing a framework of interpretation applicable to
the analysis when it says that:
The rights of each person are limited by the rights of others, by
the security of all, and by the just demands of the general welfare, in
a democratic society.
23. In this
regard, the Commission considers the relevancy for the analysis of the
other instruments of the inter-American system, first of all the Charter
of the American States and the many pronouncements down through the
Organization's one-hundred year history in reaffirming the
constitutional democratic system as the bases and objectives of the
action of the system and its component States.
24. Based on
this premise, the Commission considers that the context of Guatemalan
and international constitutional law in which this condition of
ineligibility is placed is the appropriate dimension for analysis of the
applicability of the Convention in general, and of the applicability of
its Arts. 23 and 32 to the instant case, and from which the margin of
appreciation allowed by international law can emerge.
25. In this
connection, the Commission takes into consideration that the
ineligibility of those who lead movements of governments that breach the
constitutional order appears in the successive Guatemalan constitutions
since the beginning of this century and is maintained by the various
Commission likewise considers that this ineligibility is not
idiosyncratic to the Guatemalan constitutional tradition, but appears
also -- sometimes with
virtually the same wording -- in other constitutions of various Central
American countries (Honduras, Nicaragua).
the Commission takes into account that one of the common roots of this
ineligibility is the General Treaty of Peace and Friendship concluded by
the Governments of the Republics of Guatemala, El Salvador, Honduras,
Nicaragua and Costa Rica in 1923, whereby the contracting parties
undertake not to recognize the governments of any of the five republics
if they are taken over by a coup d'etat or if any of high elected
officials have been "head or one of the heads of a coup d'etat or
revolution,..." their blood relatives, or anyone who has held high
military command immediately before or during such takeovers.
The treaty also establishes the commitment to include the
principle of non-reelection in their constitutions.
principles rejecting the breach of the constitutional order, the
disqualification of its leaders for high office, and non-reelection were
adopted because they were considered as juridical principles of
international relations and common defense of the democratic
consolidation in the region.
These principles were adopted at the same time as Article XIV of
the treaty, which establishes the most sweeping rejection of direct and
indirect intervention in internal affairs.
In other words, these principles were considered of such
importance that they were placed outside and above any consideration of
29. It is
accordingly established that this ineligibility set forth in Article 186
of the Guatemalan constitution is a customary constitutional rule with a
strong tradition in Central America.
Commission should also consider whether, in this same juridical context,
this rule establishes an individual or general discriminatory principle
that would be contrary not only to Article 23 , Political Rights, of the
American Convention on Human Rights, but also to the general principles
in that Convention.
31. In this
regard, the Commission recalls that this issue should be analyzed in
light of the circumstances of the individual case and prevailing
concepts in the historic period. Here
again, the Commission should reaffirm the restrictive character that
this margin of appreciation should utilize, which should always be
conceived with a view to strengthening the system and its objectives.
Commission finds that analysis of the condition of ineligibility applied
to Mr. Rios Montt should be compared with other conditions of
ineligibility in other constitutional law, to determine whether there is
discrimination or whether conventional limits are exceeded.
In this regard, the Commission recalls that various
constitutional regimes establish as a condition of ineligibility, in
some cases for a specified period, and in others as permanent
ineligibility, the fact of having been the head of or exercised the
power of the executive branch after being elected thereto.
33. There would
thus be constitutional conditions whereby high government officials elected in democratic elections cannot
be reelected either for a certain period or for life. If the Commission considers that Article 86 establishes
ineligibility that is inconsistent with the Convention, it would place
in a privileged position those who breach the constitutional order
compared to those who accede to high office in their countries
constitutionally and democratically.
the Commission considers that comparative constitutional law stipulates
different conditions of ineligibility seeking to avoid nepotism,
conflict of interests (government contractors, etc.), membership in
religious orders, other branches or services of the government (judges,
those on active duty in the military, etc.).
In other words, defense of the authenticity of political rights
and of the authenticity of elections has led to various kinds of
regulation on eligibility for serving as head of the executive branch,
which must be considered in context for the Commission's assessment.
35. The same
reasoning should be applied to the permanent ineligibility or
ineligibility for life. If
it is acceptable under constitutional law for a State to establish a
constitutional term for democratically elected heads of state (Honduras,
Mexico, Colombia, as cited), then it is perfectly conceivable that this
same scope can be applied to those who lead a breach of constitution.
Commission also considers the scope of the amnesty accorded to Mr. Rios
Montt in 1986 and its ability to nullify the effects of the
ineligibility clause in the Constitution.
In this regard, the Supreme Court and the Constitutional Court
have clearly established that such amnesty refers to possible crimes
committed by those accorded amnesty but not to Mr. Rios Montt's becoming
chief of state imposed by a military movement.
Such Guatemalan jurisprudence falls within the same
considerations indicated in the foregoing paragraphs and has antecedents
in other countries. Thus,
in the United States:
It has been held that a statute which restored civil rights to
convicted persons satisfying their sentence did not supersede the effect
of a state constitutional provision prohibiting convicted felons from
holding public office.
Commission should also consider the admissibility of the petitioner's
complaint regarding the inability to appear personally to defend the
electoral rights established in the Guatemalan Voter Registration Law,
which allows presentations only by parties (cf. paragraph 12).
In this regard, the Commission has kept in mind that provision
and the parallel presentations made by the parties and by the petitioner
before the various electoral and judicial administrative officials
regarding the presidential candidacy of Mr. Rios Montt and his
co-candidates. It is the
Commission's understanding that while it is actually possible
hypothetically that a restriction of this kind may prevent the full
personal defense of a member of a slate of candidates and may curtail
rights recognized in the Convention, that does not occur in the
petitioner's case. This is
due to the fact that many administrative and judicial complaints by the
parties that nominated him for president, as well as the personal
complaints of the candidate, set forth the same arguments and are based
on the same facts.
It is therefore the Commission's understanding that in the case
under review the candidate's ability to make an effective defense was
not restricted nor was there any damage or impairment of his right.
Commission should also consider the petitioner's complaint regarding the
alleged violation of the right of Guatemalan citizens to be elected
president, by applying of Article 186.a.
The Commission considers in this regard that the grounds for
ineligibility emerge from an act of a Constitutional Convention elected
by democratic vote in which the Guatemalan people decided through their
representatives at that convention that it was necessary to maintain
such grounds, which are already founded in Guatemala's constitutional
history (cf paragraph 25), and moreover to make them permanent.
Therefore as analyzed above, within those conditions any
constitutional system of law possesses the right to make its operation
more effective, and to defend the integrity of its citizens' rights.
THE COMMISSION RESOLVES
it is competent to decide on this case.
the instant petition is inadmissible because the facts sub examine
do not constitute a violation of the rights recognized by the
publish this report in the Annual Report to the General Assembly.
others the Constitutions of 1927, art. 25; 1935, RT.65; 1941, Art.3;
1945, Art/131; 1956 Art. 161, and 1986, Art 186.
Nicaragua, 1950, art. 186; Honduras, 1982, art. 239 (referring to
any head of the Executive Branch, whether he has been elected or has
taken power through unconstitutional means).
 Cf the 1986 Constitution of Mexico, Art. 83 and the 1982
Constitution of Honduras, Art. 239, and the 1991 Constitution of
Colombia, Art. 197 establish an absolute and permanent condition of
ineligibility for heads of or appointees to the executive branch,
and most of the constitutional provisions in the Americas that
establish any restriction on reelection, whether on the number of
terms or on consecutive terms.
See 52 State. Law
Enforcement Standards Board vs. Lyndon Station (App) 98 is 2d 229,
295 NW2d 472, 305 NW 2d 89.