GUATEMALA

 

 

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

 

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

 

          I.          THE POLITICAL CONTEXT AND DEVELOPMENTS IN 1996

 

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

 

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

 

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

 

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

 

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

 

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

  

            The Dissolution of the PACs and Reforms within the Security Forces

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

  

          II.        THE SOCIOECONOMIC CONTEXT

 

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

 

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

 

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

 

          III.       THE RIGHT TO JUDICIAL PROTECTION AND DUE PROCESS

 

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

 

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

 

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

 

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

           

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

 

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

 

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

 

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

  

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

 

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

 

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

 

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

 

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

 

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

 

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

 

          IV.       THE RIGHT TO LIFE AND PHYSICAL INTEGRITY

 

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

 

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

 

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

 

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

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

 

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

 

            The Death Penalty and Article 4 of the American Convention

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

          V.         FREEDOM OF EXPRESSION

 

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

 

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

 

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

 

          VI.       THE SITUATION WITH RESPECT TO LABOR AND LAND RIGHTS

 

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

 

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

 

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