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PRESS RELEASE No. 8/03
PRELIMINARY
OBSERVATIONS OF THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS ON CULMINATING ITS VISIT TO GUATEMALA |
EXECUTIVE SUMMARY
1.
On December 29, 1996, the Agreement for a Firm and Lasting Peace
was signed in Guatemala. This
agreement expresses the will of millions of Guatemalans, who, after 36
years of war and more than 15,000 deaths and thousands of disappeared,
embarked upon a necessary and difficult path to overcome grave and massive
human rights violations as well as the weakness of democratic
institutions, and to move towards the construction of a genuine democracy,
under the rule of law, so as to ensure the participation and integration
of all sectors of society.
2. The peace
agreements marked the beginning of a process which has undeniably resulted
in significant progress in terms of social peace and in creating political
space and fora for dialogue. As
of 1996, and pursuant to different objectives of the peace agreements, new
laws have been adopted and various institutions established, with the
active involvement of civil society.
3. During these
years, there have also been many reasons for lamenting the delays and the
failures to take the steps needed for building a state under the rule of
law, and attaining the objectives of the peace accords.
4. The
Inter-American Commission on Human Rights has paid special attention to
the evolution of the process of implementing the peace agreements,
acknowledging advances, and noting shortcomings.
In recent times, the Commission has noted alarming indicia
suggesting the possibility of backsliding in the progress made towards
consolidating the rule of law. Accordingly, for this visit, the Commission
focused on collecting information on aspects fundamental to the effective
rule of law. In particular,
the Commission was concerned to look into the administration of justice,
impunity, citizen security, the threats to judicial officers and human
rights defenders, the situation of the indigenous peoples, children, and
women, and the freedom of expression.
5. The judiciary
is the main instrument for upholding the rule of law and for settling the
disputes that arise on a day-to-day basis in society.
A society without a properly structured and efficient judiciary
that settles disputes among individuals and between individuals and the
state will be inclined to violence, corruption, and stagnation.
In Guatemala, the attacks on and threats to judicial officers, the
existence of unlawful pressures and influences on judges, the
insufficiency of resources, the lack of serious and timely investigations
by the Public Ministry, in particular in cases of special importance, and
the difficult situation affecting the Public Defenders Office (Defensoría
Pública) are factors that contribute, among other things, to the
widespread impunity that seriously affects the rule of law.
6. During its stay
in Guatemala, the Commission received valuable testimony on matters
related to citizen security. The
meddling of the Armed Forces in spheres outside the scope of their
authority as set forth in the peace accords, and abuse and corruption in
the National Civilian Police, are among the factors hindering the
development of an efficient security force to prevent and fight crime.
7. The Commission
also learned of illegal entities and clandestine security apparatuses that
engage in drug-trafficking, kidnapping, contraband, and attacks on and
threats to human rights defenders and judicial officers.
During the visit, both the authorities and civil society
acknowledged the existence of such parallel bodies, which pose a threat to
the continuity of the rule of law. The
Commission values the initiative of the Human Rights Ombudsman, civil
society, and the government to create the Commission for the Investigation
of Illegal Bodies and Clandestine Security Apparatuses (CICIACS).
The IACHR urges the Guatemalan State to scrupulously carry out the
terms of the agreement signed March 13, 2003, and calls on the
international community to cooperate with this important institution.
8. The information
received during the visit shows a significant increase in the intimidation
of human rights defenders and judicial officers, including illegal
searches of the offices of human rights organizations, the theft of
equipment and information, death threats, attacks on physical integrity,
being followed, kidnappings, and even assassinations. Judicial officers
and human rights defenders play an irreplaceable role in the
reconstruction of a solid and lasting democratic society.
When judicial officers and human rights defenders are silenced by
assassination, intimidation, or fear, those persons they assist are
prejudiced, as is society as a whole.
9. Guatemala is a
multiethnic, multilingual, and multicultural society in which the Maya,
Garifuna, and Xinca peoples, who account for more than half the population
and 83% of the victims of the armed conflict, have historically suffered
discrimination, and account for a large share of the population living in
poverty or extreme poverty. The Government recognized that the peace agreements on the
social inclusion of the indigenous peoples have been implemented to a
lesser extent than the others, with the consequent detrimental effect on
Guatemalan democracy, which will not consolidate until the systematic
discrimination against indigenous peoples is ended.
10.
The end of the internal conflict and the new agenda established in
the Peace Accords have made it possible for women to play a leading role
in attaining major advances in the legal framework and public policies for
overcoming the discrimination that hinders women’s full participation in
decision-making. Nonetheless,
these strides have not been followed by other structural changes essential
for remedying discrimination against women.
It is especially worrisome that the State has not taken the steps
needed to repeal certain legal provisions that discriminate on the basis
of gender. In addition, and
despite certain legislative advances, anachronistic legal provisions
subsist that perpetuate forms of subordination. Moreover, there is a
marked contrast between the legal gains and the insufficiency of real
change in practice. In addition, although the State has assumed major
international commitments in relation to women’s rights, few judicial
officers are familiar with or apply the relevant instruments.
11.
The Commission expresses its profound concern in relation to the
situation of Guatemalan children. The IACHR found that the domestic
legislation has yet to be brought into line with the Convention on the
Rights of the Child, to which the Guatemalan State is a party.
In addition, it received information on the continued violations of
the rights to life and physical integrity of children, and the failure to
investigate, prosecute, and punish those responsible for such violations,
and the lack of services and programs to address the basic needs of
children at risk. The
Commission expresses special concern in relation to the reports of
so-called “social cleansing” killings and the violence and insecurity
to which street children and youths are exposed.
12.
The Commission also notes with concern the increase in threats and
acts of harassment directed against journalists, particularly those who
cover investigations into acts of corruption and human rights violations.
Accordingly, it is necessary for journalists to protect their
sources of information and the free exercise of the right of access to
information. At the same time, the Commission expresses its concern over
the lack of regulations on concessions for television and radio
broadcasting that take into account democratic criteria that guarantee
equal opportunity in access to such concessions, particularly in relation
to the inclusion of the indigenous peoples, peasants, women, and youths.
13.
On concluding this visit, the IACHR cannot hide its serious concern
over the lack of progress in matters vital to the preservation and
strengthening of the rule of law. To
the contrary, since its previous visit in 1998, the Commission has found a
significant deterioration in several respects.
The rule of law and democracy in Guatemala will not become
consolidated if the judiciary continues to be inefficient for addressing
the very serious human rights violations of the past, as well as the
violations of the present and the impunity that continues to prevail in
the justice system; if armed groups act with impunity outside the law; if
human rights defenders, judicial officers, journalists, trade unionists,
and other representatives of social sectors are targets of assassinations,
threats, and intimidation; if the indigenous peoples, women, and children
suffer different forms of discrimination and social marginalization; and
if the Armed Forces and intelligence agencies continue to participate in
activities related to citizen security and are not subordinated to the
civilian authorities.
14.
The Commission considers that the factors mentioned above, in
particular impunity, corruption, organized crime, and the social exclusion
of various sectors, pose a serious danger of backsliding in the effective
observance of the rule of law, and limit the full enjoyment of the human
rights that the American Convention recognizes for all persons.
15.
The Commission wishes to reiterate its support for the peace
process that put an end to 36 years of internal armed confrontation. The
development of a culture of tolerance, respect for the law, and rejection
of impunity requires an effort on the part of all Guatemalans; this is an
undertaking in which they have been and will be joined, in solidarity, by
the international community. The Commission is aware of the difficulties
of that task, and of what remains to be accomplished.
The IACHR understands the frustration of various sectors of
Guatemalan society due to the scant progress in the process.
The IACHR emphasizes that those difficulties should not lead to
discouragement. To the contrary, existing spaces for cooperation and
participation should be preserved and strengthened.
16.
The IACHR highlights once again the importance of the peace accords
as instruments for advancing in the task of building a country that is
more democratic, just, tolerant, and respectful of human rights. The
Commission issues an appeal to the State and to civil society to redouble
their efforts for the full implementation of these agreements.
17.
The IACHR will continue to closely observe the development of the
human rights situation in Guatemala.
The visit culminating today was a valuable opportunity to attain
this purpose, and to further the dialogue which, within the scope of its
competence, the Commission maintains with the authorities and with
Guatemalan society. The IACHR
reiterates its offer to collaborate with the Government of Guatemala, and
with Guatemalan society as a whole, to contribute to strengthening the
defense and protection of human rights in a democratic context. Furthermore, the Commission expresses its gratitude to the
government and civil society institutions that made this a productive
visit.
18.
The delegation of the IACHR[1]
for this visit was made up of its First Vice-President José Zalaquett
(Chile); Second Vice-President Clare Roberts (Antigua and Barbuda); Susana
Villarán (Peru); Juan E. Méndez (Argentina); Julio Prado Vallejo
(Ecuador); and Santiago A. Canton, Executive Secretary.
The Special Rapporteur for Freedom of Expression, Eduardo Bertoni,
accompanied the delegation.
I.
INTRODUCTION
19.
Today, the Commission concluded its on-site visit to the Republic
of Guatemala. The visit –
made upon the invitation of the Government of President Alfonso Portillo
– took place from Monday, March 24, to Saturday, March 29, 2003, and was
carried out for the purpose of observing Guatemala’s human rights
situation.
20.
The IACHR is a principal organ of the Organization of American
States (OAS), whose mandate is to promote and protect the observance of
human rights in the Hemisphere; its powers derive from the American
Convention on Human Rights and the Charter of the OAS, both of which
instruments have been ratified by the Republic of Guatemala. The
Commission is made up of seven members elected in their personal capacity
by the OAS General Assembly. The
delegation of the IACHR[2]
for this visit was made up of its First Vice-President José Zalaquett
(Chile); Second Vice-President Clare Roberts (Antigua and Barbuda); Susana
Villarán (Peru); Juan E. Méndez (Argentina); Julio Prado Vallejo
(Ecuador); and Santiago A. Canton, Executive Secretary.
The Special Rapporteur for Freedom of Expression, Eduardo Bertoni,
accompanied the delegation. The delegation also included specialists María
Claudia Pulido, Elizabeth Abi-Mershed, Isabel Madariaga, Andrea Galindo,
and Tamara Taraciuk. The
delegation received administrative support from Gloria Hansen, Martha
Keller, and Laura Ferrer.
21.
The IACHR wishes to note that it was fully free to meet with the
persons of its choosing, and to travel to any part of the territory as it
might deem advisable. The authorities of the Guatemalan State provided the
Commission with the fullest assistance and cooperation to enable it to
carry out its program. The Commission expresses its gratitude to the
Government of President Portillo and in particular the Presidential
Commission for Human Rights (COPREDEH) for these facilities.
It also thanks various organizations and representatives of civil
society for their collaboration and for the information they provided.
22.
During its visit, the IACHR met with authorities from the different
branches of government, including the Vice-President of the Republic, at
the time in his capacity as acting President, the Minister of Interior,
the Minister of Defense, members of the Security Cabinet, the Social
Welfare Secretariat, the Peace Secretariat, the Secretary of
Communication, the Secretary of the Indigenous Fund, the Director of the
National Civilian Police, members of the Presidential Commission against
Discrimination and Racism, the Office of the Ombudswoman for Indigenous
Women, and the President of COPREDEH.
In addition, the Commission held meetings with members of the
Supreme Court of Justice and with a judge from the Constitutional Court.
Furthermore, meetings were held with the Attorney General, and
members of special prosecutorial units, as well as the Public Defender
(Defensor del Pueblo), members of his office (the Defensoría Pública),
and the President of Congress and members of the committee on human
rights, and the committee on women, children, and family.
Moreover, meetings were held with non-governmental human rights
organizations, representatives of indigenous rights organizations,
children’s rights organizations, women’s rights organizations,
representatives of the churches, representatives of peasant organizations,
organizations devoted to strengthening the administration of justice,
journalists, trade unionists, and representatives of the business sector.
In addition, the IACHR received testimony from victims of human rights
violations. The IACHR also contacted international organizations,
including MINUGUA and UNICEF.
23.
The Commission also received information and testimony on the
situation in all regions of the country. In particular, a delegation of
the IACHR traveled to Nevaj, department of Quiché, where it met with the
governor, the mayor, the civil judge, the Public Defender, personnel from
the justice of the peace, members of legal aid offices, and the chief of
police, and with members of local organizations and the Church. The
Commission was also able to look into the situation in the community of
Los Cimientos and the situation of violence suffered by youths in
Villanueva, Guatemala City.
24.
In the context of the collaboration with the Government, and with a
view to contributing to the effort to bring about more and better
protection of fundamental rights in Guatemala, the Commission, exercising
its functions and powers pursuant to Article 41 of the American Convention
on Human Rights, publicly makes known its preliminary observations on the
impressions garnered before and during this visit.
The final conclusions and recommendations will be set forth in a
report on the human rights situation in Guatemala, which will be put to
the consideration of the Guatemalan State and made public soon thereafter.
25.
During its visit, the Commission paid special attention to the
following issues: the administration of justice; the effort to end
impunity; citizen security and the threat represented by the illegal
bodies and clandestine security apparatuses; the situation of human rights
defenders; discrimination against and social exclusion of indigenous
peoples, women, and children; and
the freedom of expression. The
Commission considers that these issues are of fundamental importance for
achieving the effective observance of the rule of law in a democratic
society.
26.
At the same time, democracy and the rule of law are necessary
conditions for achieving the observance of and respect for human rights.
According to the Inter-American Democratic Charter, the essential elements
of representative democracy include respect for human rights and
fundamental freedoms; access to power and its exercise subject to the rule
of law; and the separation of powers and independence of the various
branches of government.
II.
THE ADMINISTRATION OF JUSTICE
27.
The IACHR wishes to reiterate the importance of the existence of an
efficient, independent, and autonomous administration of justice for
enhancing democracy and the rule of law.
A judiciary with those characteristics places limits on the abuses
of authority and is a guarantee of legality and protection of the rights
of all persons.
28.
During its visit, the IACHR received information on the situation
of the Guatemalan judiciary, including the efforts and gains made with a
view to training the judges, appointing new justices of the peace, and
creating community courts. In addition, the IACHR received information on
the shortcomings that continue to beset the judicial branch.
Among the most serious problems that affect the administration of
justice are insufficient resources, pressures of various sorts on judges
and judicial officers, and the lack of an adequate judicial career service
and the instability this entails. Moreover,
the stepped-up attacks and assassination attempts against the lives and
physical integrity of judges and prosecutors and all other judicial
officers are of special concern to the Commission and are analyzed below
in this press release.
29.
The Commission received information that indicates that the budget
allocated to the justice institutions is still insufficient. For example,
the Attorney General informed the Commission that his institution’s
resources are precarious, and that, as a result, the Public Ministry has a
presence in only 10% of Guatemalan territory, and that it has one
prosecutor for every 75,000 inhabitants, which means that each handles
1,546 cases on average. Similarly,
the National Commission for Monitoring and Support for the Strengthening
of Justice reported that the Institute for Criminal Public Defense is
experiencing serious difficulties continuing several of its vital
programs, such as the public defender program, its presence at the Centers
for the Administration of Justice, public defenders’ offices at police
stations, and special defenders for distinct ethnic groups.
30.
In addition, the Commission received information on the current
performance of several special prosecutorial offices. The Commission
considers that success in the struggle against impunity depends largely on
the effectiveness of the investigative mechanisms and consequently values
the creation of special prosecutorial offices when necessary. Nonetheless,
the information received by the Commission indicates that there have been
few advances in numerous criminal investigations, particularly those
related to judicial officers and journalists. The Commission is especially
interested in the investigation into the threats and attacks on human
rights defenders, and urges the Attorney General to endow the Office of
the Special Prosecutor on Human Rights the resources needed to perform its
duties.
31.
The National Commission for Monitoring and Support for
Strengthening the Justice System, the U.N. Special Rapporteur on the
independence of judges and lawyers, and this same Commission have on
several occasions expressed the importance of endowing the Guatemalan
justice system with an adequate budget. This is a necessary condition for
guaranteeing all the inhabitants of Guatemala equitable access to justice
and to fighting impunity.
III.
IMPUNITY
32.
The effective observance of the rule of law is accomplished in
large measure by ensuring an administration of justice that does not
tolerate impunity. The entire
society should perceive that the judiciary enforces the law equally and
guarantees that all inhabitants effectively enjoy their rights. The
Inter-American Commission has argued that “[i]mpunity is one of the
serious problems in the administration of justice in the hemisphere,”
and one of the obstacles to the definitive strengthening of the rule of
law in several states of the region.
33.
The persistence of high levels of impunity means not only that
numerous grave crimes go unpunished; it also becomes a situation that
affects the very life of the nation and its culture. In addition, the
international responsibility of the state is triggered when it does not
fulfill its obligation to undertake a serious, impartial, and effective
investigation into the facts and punish the persons responsible, even in
the case of crimes not committed by state agents. Such an omission gives
rise to the additional obligation to make reparation to the victims or
their family members for the violation of their right to have the state
undertake a proper investigation into the facts.
34.
During its on-site visit, the Commission learned of various factors
that contribute to the situation of impunity.
These include grave failings in the actions of the Public Ministry,
the judiciary, and in particular the National Civilian Police;
irregularities in the collection and production of the evidence; the undue
influence of the Armed Forces in matters outside the scope of their
specific functions; the refusal of the security agencies to provide the
judges with relevant information; the protection and cover-up, by some
authorities, in investigations related to organized crime; the lack of
will, negligence, or incapacity of several judges to prevent the use of
procedural remedies to obstruct justice; the absence of a criminal policy
aimed at combating citizen insecurity; threats against and intimidation of
judicial officers, human rights defenders, and other social leaders; and
the budgetary limitations affecting the system for the administration of
justice.
35.
With respect to the prosecution and punishment of the persons
responsible for human rights violations of the past, the Commission
observes with profound concern that the grave impunity in the violations
committed during the armed conflict remains intact. In effect, through the
case system, the general hearings granted by the IACHR, and in the course
of this visit, the Commission has received information according to which
the judicial authorities have to this day refrained from prosecuting and
punishing the perpetrators responsible for almost all the human rights
violations committed during the armed conflict.
IV.
CITIZEN SECURITY
THE NATIONAL CIVILIAN POLICE
36.
During its stay in Guatemala, the Commission received valuable
testimony on citizen security, and the violence and crime that have a
serious detrimental impact on the rule of law.
Based on the information provided by the State, the PNC has been
strengthened, within the possibilities of the State and with the
collaboration of the international community. The Government indicated
that with the approval of the budget for 2003, the Police was reinforced
finally and technically to meet the demands for protection. Nonetheless,
the Commission learned that the budget for the Academy of the PNC has been
reduced, and accordingly urges the State to provide the Academy with the
resources and support it needs to ensure the continuity of its specialized
training and education of police agents.
37.
One area of concern of the Commission in relation to citizen
security is the participation of the Armed Forces in activities that
should correspond exclusively to the PNC. In a democracy, it is
fundamental that there be a clear and precise separation between internal
security as a function of the Police and national defense as an action of
the Armed Forces. The
Commission has received information on the participation of the Armed
Forces in matters concerning citizen security and in other areas of the
Government. For example, the Armed Forces continue participating in the
investigation of crimes – in particular in cases related to
drug-trafficking and organized crime – immigration control, and civilian
intelligence tasks.
38.
Influence over citizen security is just one aspect of the broad
power that the Armed Forces exercise over the Government and Guatemalan
society. It is necessary to
look in greater depth at the process of demilitarization begun with the
signing of the Peace Accords, mainly strengthening civilian control of
both the executive and legislative branches, over the activities of the
Armed Forces.
LYNCHINGS
39.
The IACHR is profoundly concerned about the persistence of
lynchings, which have been documented since 1996. According to MINUGUA
figures, from 1996 to 2002, a total of 482 lynchings were recorded,
affecting 943 victims, 240 of whom were killed.
Even though the PNC and Office of the Human Rights Ombudsman
(Procuraduría de Derechos Humanos) have intervened successfully in
certain cases to keep the victims from being killed, the state response to
date has been marred by serious shortcomings.
In many cases the authorities do not take preventive measures nor
do they respond effectively to the acts of violence. The vast majority of
lynching cases remain in impunity. The
lack of an effective response by the administration of justice sends the
perverse message that “people’s justice” is an acceptable
alternative to the rule of law and due process. THE
ILLEGAL BODIES AND CLANDESTINE SECURITY APPARATUSES
40.
The Commission received information from the authorities and civil
society as to the existence of “illegal bodies and clandestine security
apparatuses” that have stepped up their criminal activities in recent
years. These groups have been
associated with drug-trafficking, kidnapping, contraband, theft on a large
scale, and in particular with attacks on and threats to human rights
defenders, judicial officers, witnesses, journalists, trade unionists, and
other social sectors.
41.
The Commission looks favorably on the initiative to create the
Commission to Investigate the Illegal Bodies and Clandestine Security
Apparatuses (CICIACS), which will investigate the activities of such
structures and urges the Government to provide it with the elements to
carry out its mandate of undertaking an effective investigation. In
addition, the Commission urges the authorities to collaborate with the
CICIACS and to abide strictly by the terms of the political agreement of
March 13, 2003.
42.
The Commission will continue observing the evolution of the CICIACS
and offering to share with Guatemalan authorities and civil society its
experience and knowledge, to collaborate in the success of its mission.
The Commission trusts that the UN and the OAS will provide their full
cooperation to ensure the sound operation of the CICIACS.
THE CIVIL DEFENSE PATROLS
43.
The civil society organizations told the Commission of their
concern over the reactivation of the Civil Defense Patrols (Patrullas de
Autodefensa Civil, or PACs) in activities that may be designed to
intimidate the population. In this regard, the Commission would like to
recall that the origins, objectives, and operation of the PACs have been
analyzed in both in its own reports and in decisions of the Inter-American
Court; in addition, they were involved in numerous extrajudicial
executions during the armed conflict, and specific recommendations were
made in this regard. The
Inter-American Court has stated in this regard that ...
the civil patrols enjoyed an institutional relationship with the Army,
performed activities in support of the armed forces’ functions, and,
moreover, received resources, weapons, training and direct orders from the
Guatemalan Army and operated under its supervision. A number of human
rights violations, including summary and extrajudicial executions and
forced disappearances of persons, have been attributed to those patrols.
44.
In addition, the Commission would like to recall that in Report
59/01, it recommended that the Guatemalan State “effectively prevent a
resurgence and reorganization of the Civil Patrols.”
V.
THE SITUATION OF HUMAN RIGHTS DEFENDERS AND JUDICIAL OFFICERS
HUMAN RIGHTS DEFENDERS
45.
The Commission notes that human rights defenders play a key role in
the pursuit of the full attainment of the rule of law.
Their initiatives, by protecting individuals and groups of persons
who are victims of human rights violations, by publicly denouncing the
injustices that affect large sectors of society, and by engaging in the
necessary monitoring of public officials and democratic institutions,
among other activities, gives them an irreplaceable role in building a
solid and lasting democratic society. When judicial officers and human rights defenders are
silenced by assassination, intimidation, or fear, also prejudiced are
those persons whose rights they work to protect, and society as a whole.
46.
In addition, the Commission recalls resolutions 1818 and 1842 of
the OAS General Assembly, which expressly condemn acts that directly or
indirectly impede or hinder the tasks of human rights defenders in the
Americas, and urge the member states to step up their efforts to adopt the
measures needed to guarantee their lives, personal integrity, and freedom
of expression, in keeping with each state’s domestic legislation and
internationally recognized principles and standards.
47.
In July 2002, the IACHR’s Rapporteur for Guatemala, together with
the Human Rights Defenders Unit of the Executive Secretariat of the IACHR,
visited the country. On that occasion, the delegation received reports
indicating a growing climate of attacks, harassment, and persecution of
human rights defenders in Guatemala. During this visit, the IACHR found a
significant increase in attacks which, directly or indirectly, impede or
hinder the tasks performed by human rights defenders.
48.
In 2002 and the first months of 2003, the Commission received
abundant information that evidences a pattern of intimidation towards
human rights defenders. In
addition, during this visit, the Commission received information on more
than 160 attacks and acts of intimidation against defenders, witnesses,
and social leaders, from January 2002 through March 2003.
Those attacks include unlawful searches of human rights
organizations, theft of equipment and information, death threats made by
phone and in writing, attacks on physical integrity, being followed,
kidnappings, and, in some cases, assassinations.
49.
Of late, the Commission requested the Guatemalan State to grant
precautionary measures on behalf of human rights defenders who have been
threatened, intimidated, or targeted by acts of violence.
On this occasion, the Commission would like to reiterate the
importance of the Guatemalan State performing in their entirety the
precautionary measures of the Commission.
JUDICIAL OFFICERS
50.
The Commission was extremely concerned upon receiving information
according to which there has been a significant increase in threats,
harassment, and other acts of intimidation against judicial officers.
The President of the Supreme Court informed the Commission that in
the first three months of this year, 39 judges were threatened, two
suffered attacks, and one was assassinated.
This represents a significant increase with respect to the figure
from 2002, when 74 were threatened in one year.
51.
In recent months, the Commission requested precautionary measures
from the Guatemalan State to provide security for persons who are
threatened or otherwise attacked for reasons related to judicial
proceedings. Nonetheless, the
Commission received information that indicates that security is
insufficient, and that investigations are almost non-existent. In the case of judicial officers, the Supreme Court of
Justice created a Judicial Security Office (Dependencia de Seguridad
Judicial), entrusted with studying security problems and making
recommendations.
52.
The Commission was informed that on February 7, 2001, the Office of
the Special Prosecutor for Crimes Committed against Judicial Officers was
established; it was assigned 114 cases in 2001, and 47 in the first half
of 2002. The Commission
encourages the work done by the Public Ministry to protect judicial
officers; nonetheless, it has received information according to which
there has been no significant progress in the investigations carried out
by the above-mentioned Office of the Special Prosecutor.
VI.
DISCRIMINATION AND SOCIAL MARGINALIZATION
53.
The Inter-American Democratic Charter recalls that eliminating all
forms of discrimination, especially discrimination based on gender,
ethnicity, or race, and the various forms of intolerance, and promoting
and protecting the human rights of individual peoples, and respect for
ethnic, cultural, and religious diversity, contribute to the strengthening
of democracy and citizen participation.
54.
The Commission observes that there is social exclusion in
Guatemala, particularly of the indigenous peoples, women, and children.
The social exclusion that the Commission finds in Guatemala includes the
lack of access to justice, as well as the effective exercise of human
rights, including the civil, political, economic, social, and cultural
rights of these sectors of society. Accordingly,
the implementation of strategies for social inclusion indissolubly tied to
the promotion, protection, and respect for the human rights of these
sectors should be a priority for the Guatemalan State and society.
The rule of law in Guatemala can only be consolidated when these
historically marginalized sectors achieve more equal participation in
society and in the decisions that affect them.
THE INDIGENOUS PEOPLES
55.
Guatemala is a multiethnic, multilingual, and multicultural
society, in which the Maya, Garifuna, and Xinca peoples account for more
than half of the population. According to the Commission for Historical
Clarification, the indigenous peoples accounted for 83% of the victims in
the armed conflict. The IACHR, in its Fifth Report on the Situation of
Human Rights in Guatemala of 2001, said that the indigenous peoples
historically have suffered discrimination, constitute a large part of the
poor population or those living in extreme poverty, and are the majority
in the departments with the highest indices of social exclusion.
Two years later, the Commission finds that the situation has not
changed.
56.
The Peace Accords represented a historical opportunity to overcome
such scourges, especially the Agreement on Identity and Rights of
Indigenous Peoples. Nonetheless, eight years after their signing, the
IACHR finds that this is the agreement that has been least implemented, as
acknowledged by the President of the Republic on March 24, 2003, in the
context of the presentation by the Presidential Commission against
Discrimination and Racism against the Indigenous Peoples of Guatemala.
57.
The Commission values the efforts of the Guatemalan State aimed at
recognizing and guaranteeing the rights of indigenous peoples in areas
such as justice, education, and cultural rights. Nonetheless, these
efforts have not been sufficient. The IACHR has been able to verify, in the course of this
visit, that ensuring access to justice is a task still pending. In
addition, the degrees of chronic malnutrition in indigenous children, the
lack of medical care, the need for a culturally relevant education, and
the discrimination suffered especially by indigenous women, are examples
of the social exclusion to which the indigenous peoples of Guatemala
continue to be subjected.
58.
The Commission values the State’s initiatives to adopt a law on
discrimination and to create the Presidential Commission against
Discrimination and Racism against the Indigenous Peoples of Guatemala. It
is to be expected that this Presidential Commission, which originated in a
proposal by indigenous organizations and is made up of five indigenous
leaders, can design public policies that guarantee the eradication of
discrimination and racism against indigenous peoples.
59.
One fundamental means of communication for the indigenous peoples
is community radio. The Special Rapporteur for Freedom of Expression of
the IACHR recommended that the State suspend the auctioning of radio
frequencies so that those still available can be handed over to the
indigenous communities, to comply with the Peace Accords. Nonetheless,
according to information the Commission has received, the State has
resumed the auctions, without reserving the frequencies needed for the
community radio stations. The
IACHR calls on the State to regulate the access of indigenous peoples to
radio frequencies, pursuant to the Peace Accords.
60.
Among the obstacles the Commission notes to guaranteeing the
eradication of discrimination and racism are the failure to effectively
implement the international instruments that Guatemala has ratified, such
as International Labor Organization Convention 169 on Indigenous and
Tribal Peoples in Independent Countries, and the International Convention
on the Elimination of All Forms of Racial Discrimination, of the United
Nations.
WOMEN
61.
Based on the recognition that many interrelated forms of
discrimination hindered the full participation of women in decision-making
and national development, the Peace Accords established a series of
fundamental commitments with respect to women’s rights. Based on these
commitments, some important initiatives were taken, such as the Law on the
Dignifying and Comprehensive Promotion of Women, the Law against Family
Violence, the Law on Social Development, the National Policy for Women’s
Promotion and Development, and the Equal Opportunities Plan.
In addition, offices were created such as the Office of the
Ombudsperson for Indigenous Women (Defensoría de la Mujer Indígena), the
Women’s Forum (Foro de la Mujer), the Presidential Secretariat on Women,
and the National Coordinating Body to Prevent Family Violence and Violence
against Women (CONAPREVI). Women
played a leading role in gains, which established a new agenda aimed at
overcoming the discrimination against women that has existed historically.
62.
During its on-site visit, however, the Commission received
consistent reports to the effect that these valuable gains have not been
followed by other changes that are essential for remedying the systematic
discrimination that continues to stand in the way of women exercising
their rights freely and fully. In
this connection, it is a matter of special concern that the State has not
taken the steps needed to derogate legal provisions that discriminate on
grounds of gender. For
example, during the visit, several sources emphasized the fact that many
provisions of the Criminal Code that limit the protection afforded by the
law to “honorable” (“honestas”)
women, or that allow criminal liability for certain types of sex crimes to
extinguish when the perpetrator marries the victim, are still on the
books. Moreover, several
organizations emphasized the need to establish legal sanctions for sexual
harassment. The Commission
also received information on the need to derogate certain provisions of
the Civil Code, including, for example, the provision that allows women to
excuse themselves from exercising certain types of guardianship simply for
being women, and also certain discriminatory provisions of the Labor Code.
63.
It is clear that when the law itself enshrines unjustified
distinctions based on gender, far from guaranteeing the principle of
equality, it becomes a factor of subordination. It is urgent that the
State adopt the necessary measures to identify and do away with such
unjustified distinctions.
64.
Despite certain legislative advances, anachronistic legal
provisions subsist that perpetuate forms of discrimination. There is a
marked contrast between the positive commitments assumed by the State and
the scant measures that it has adopted to implement them.
For example, although the State acknowledges that women’s
representation in high-level positions in the public administration
continues to be very rare, no effective measures have been taken to foster
women’s participation in political life on an equal footing with men.
Nor have decisive measures been taken to solve the high rates of
illiteracy and maternal mortality. Moreover,
during this visit the Commission received abundant information that
indicates that state entities with authority over the issues of
gender-based discrimination and violence do not have even the minimum
budget they would need to accomplish their goals, and that there is a lack
of coordination among them to ensure the cross-cutting incorporation of
the gender perspective into public policies.
65.
The Commission received encouraging information on the creation of
the Equity and Gender Office of the National Civilian Police (PNC) so as
to incorporate and foster, within the PNC, a gender perspective internally
and in the delivery of services. It is essential that the State take steps
to incorporate a gender perspective in the work of all the public
institutions. As acknowledged
in the Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women (Convention of Belém do Pará),
violence against women is an expression of discrimination based on the
historically unequal power relationships between women and men. When it
ratified that Convention, the Guatemalan State undertook to apply due
diligence in preventing and responding to such violence.
In particular, the State is under an obligation to investigate,
prosecute, and punish violence, independent of whether it occurs at home
or at the hands of state agents. In this respect, the creation of the
Coordinating Body to Prevent, Punish, and Eradicate Family Violence and
Violence against Women (CONAPREVI) is a valuable step. The information
received most recently indicates, however, that this progress has not been
followed by decisive steps to put an end to this problem.
As regards the important international commitments adopted by the
State in relation to women’s rights, the Commission wishes to note its
concern over the fact that many judicial officers are not familiar with
the relevant instruments or how to apply them properly.
66.
In relation to the question of gender-based violence and
discrimination, the Commission wishes to express its special concern over
the de facto and de
jure obstacles women face when they seek judicial protection for their
rights. For example, the Commission received information that
indicates that a woman who wishes to report family violence faces the
so-called “pendulum effect,” in that each time she goes to an
authority, she is sent to another, with no timely or effective results.
Moreover, poor women have limited access to justice due to the lack
of legal counsel free of charge.
67.
In this area, the priority challenge facing Guatemala is to
eliminate the profound gap between the commitments formally assumed by the
State and the discrimination that many Guatemalan women face.
CHILDREN AND ADOLESCENTS
68.
The values of a society are profoundly reflected in how it treats
its children. In the regional
human rights system, special priority and protection have been accorded to
children’s rights, because the youth of our hemisphere represent our
collective possibility of creating “a system of personal liberty and
social justice based on respect for the essential rights of man.”
69.
According to its obligations under the American Convention, and
under the Convention on the Rights of the Child, the Guatemalan State has
undertaken to take the legislative and practical steps needed to ensure
protection for the rights of Guatemalan children.
In this regard, the Commission expresses its profound concern for
the failure to put in place an adequate legal and regulatory framework to
protect those rights. Although
it is clear that the 1979 Code of Minors does not reflect the State’s
commitments under international law, nor under the Constitution, the
necessary measures to move towards full protection of children’s rights
have not been taken. The
absence of the legal protections required gravely endangers Guatemalan
children. The Commission
urges the State, and especially the Congress, to adopt the measures needed
to comply with its duties immediately.
70.
Furthermore, the deficiencies in the administration of justice
indicated above in this press release imply that children are vulnerable
to abuse, which is not met by the necessary investigation, prosecution,
and punishment. In this
regard, the situation of street children and youth is emblematic.
Since some years ago, the Commission has paid special attention to
this high-risk sector. Precisely
due to the lack of adequate prevention measures and an adequate response
vis-a-vis the violations they suffer, the Commission referred the
“Street Children” case to the Inter-American Court of Human Rights,
which ordered, among other measures, that the State take the actions
needed to adapt the legal framework so as to carry out its obligations.
71.
During this visit, the Commission received updated information
concerning grave violations of the rights to life and physical integrity
of children, and on the lack of services and programs for covering their
basic needs. According to the information received, there are some 8,000
street children in Guatemala, approximately 3,500 of them in Guatemala
City. During the visit, many
organizations emphasized the grave violations that many of these children
and adolescents suffer, particularly harassment and persecution at the
hands of the security forces. They also reported an increase in the number
of assassinations of and attacks on children and adolescents since
December 2002. In particular, the Commission received information
according to which 37 youths were assassinated in January 2003.
Those sources also were of the view that in certain cases, the
characteristics of these assassinations, which include signs of torture or
gunshot wounds at point-blank range, are consistent with so-called
“social cleansing.” The
information received indicates that almost all cases of violence against
street children or other children in high-risk situations remain in
impunity.
72.
The Commission also received information on the situation of the
economic, social, and cultural rights of Guatemalan children, and
especially on the impact of poverty on the development of the country’s
human capital. According to
data from the United Nations Development Program, approximately 64% of
children live in poverty, and within this group, most are indigenous.
Inequality and social exclusion have had repercussions on education
and its results, especially in relation to access to primary education,
food insecurity, and high rates of malnutrition, as well as the high rate
of child labor.
73.
The Peace Accords place emphasis on the key role of education in
building a multicultural, democratic, and participatory society.
The Commission learned of positive initiatives on behalf of
educational reform and bilingual education, but also received information
that indicates that many children still lack access to the first three
years of education. Furthermore, several organizations spoke of the need
to incorporate the children’s participation in the design of the
programs and policies that affect them.
The Commission received information on a mechanism for the
participation of children at the municipal level that includes UNICEF,
civil society, and state representatives.
The Commission encourages the search for mechanisms to expand the
participation of children.
74.
Child adoption in Guatemala is an issue of special concern for the
Commission, due to the fact that the country has one of the highest
numbers of children involved in international adoptions, and does not have
an adequate legal framework. According to the information received during this
visit, last year there were more than 2,000 adoptions, almost all of them
international. Nonetheless,
the respective processing does not require judicial approval, and there is
no state control over the origin of the child, the free and informed
consent of the biological parents, or the suitability of the adoptive
parents.
75.
Given that lack of state control and the high price paid by the
adoptive parents in international adoptions, adoption, instead of offering
an appropriate solution to orphaned or abandoned children, has become a
profitable commercial operation that involves, moreover, the existence of
networks involved in the trafficking of children.
In view of the gravity of the situation, the Commission celebrates
the fact that the State has taken an important step on ratifying the Hague
Convention on Inter-Country Adoptions, now under consideration in the
Congress, which would represent significant progress. Considering that the
State is not fulfilling its duties under the American Convention and the
Convention on the Rights of the Child to bring its laws and practices into
line with the standards set forth in these conventions, the Commission
calls on the Congress to proceed to the prompt adoption of the necessary
reforms.
76.
Finally, during its visit, the Commission received information on
non-governmental initiatives aimed at clarifying the situation of the
children disappeared during the conflict, and the positive results in more
than ten cases. It should be recalled that the reports of both the
Commission for Historical Clarification and the REMHI project recommended
establishing a special commission to determine the fate of the children
and adults who were disappeared, and that President Portillo declared his
decision to implement it. The
Commission calls on the State to comply with its pending duty to
investigate and determine the facts.
VII.
FREEDOM OF EXPRESSION
77.
Full respect for the freedom of expression is another issue that
the Commission included on the agenda for analyzing the human rights
situation in Guatemala. The Special Rapporteur for Freedom of Expression
accompanied the IACHR in its meetings with public officials and members of
civil society, also meeting with the Secretary for Social Communication of
the Presidency of the Republic, Alejandro Pérez Martínez,
representatives of the Guatemalan Council for Community Communication, the
Chamber of Radio-broadcasting of Guatemala, the Association of Journalists
of Guatemala, the Centro de Reportes Informativos sobre Guatemala
(CERIGUA), journalists, and directors of media outlets.
This visit has been useful for the rapporteur to collect the
information needed to prepare a specific future visit on the situation of
the freedom of expression.
78.
The Commission is concerned about an increase in threats to
journalists, particularly those who cover investigations related to acts
of corruption and human rights violations. The cases of journalists
Elizabel Enríquez and María de los Angeles Monzón are examples of such
attacks. In addition, statements discrediting journalists and media
outlets, issued from high-level governmental offices, may, if reiterated,
constitute acts of harassment that contribute to creating a climate not
very propitious for the full exercise of the freedom of expression in
Guatemala. The IACHR calls on
the authorities to seek channels that allow for greater tolerance of
criticism, and greater scrutiny of the public administration.
The IACHR received information on the increase in the number of
journalists being subpoenaed for questioning concerning to their sources
of information; this has a negative effect on the investigative
journalism, since it would inhibit future sources of information from
providing information to journalists, given the possibility that they
might be forced to reveal those sources. The IACHR recalls that protection
for journalistic sources should be a right respected by judges and
prosecutors.
80.
In its Fifth Report on the Situation of Human Rights, the IACHR
recommended that the possible existence of a de
facto monopoly on the open television channels be investigated, and
that greater plurality of the media be allowed. On this occasion, the
IACHR corroborated that the situation that led to that recommendation
persists. The IACHR reiterates that the existence of monopolistic
practices in the communications media has a serious detrimental impact on
the freedom of expression and the right to information of Guatemalans.
Issuing a license for a new cable television channel, while a new
outlet for information, is insufficient as a palliative to the problems
associated with open television.
81.
In the same report, it was recommended that the regulations on
television and radio concessions be reviewed to incorporate democratic
criteria that ensure equal opportunity for access.
In this regard, the awarding or renewal of radio licenses should be
subject to a clear, fair, and objective procedure that takes into
consideration the importance of the media if citizens are to participate
in the democratic process in an informed manner.
The obligation of the state is even clearer in the Guatemalan
context, in relation to the implementation of the Peace Accords that call
for the inclusion and participation of those majority sectors of the
Guatemalan population that have traditionally been excluded, such as the
indigenous peoples, peasants, women, and youths. It is, therefore,
necessary to ensure the exercise of the free dissemination of thought by
awarding radio frequencies for radio broadcasting, in equal conditions, so
as to assure the representation of all sectors that make up Guatemalan
society.
82.
Finally, the IACHR reiterates once again the need to undertake
promotion and training campaigns on the right to freedom of expression,
and to adopt measures aimed at eliminating obstacles to the exercise of
the freedom of expression. Guatemala City, March 29, 2003
[1]
Marta Altolaguirre, President of the IACHR and a Guatemalan national,
refrained from participating in the delegation, in keeping with
Article 17 of the Commission’s Rules of Procedure, which provides
that the members of the Commission may not participate in
deliberations or decisions on matters referring to the countries of
which they are nationals. [2]
Marta Altolaguirre, President of the IACHR and a Guatemalan national,
refrained from participating in the delegation, in keeping with
Article 17 of the Commission’s Rules of Procedure, which provides
that the members of the Commission may not participate in
deliberations or decisions on matters referring to the countries of
which they are nationals. |