OEA/Ser.L/V/II.61 CHAPTER II RIGHT TO LIFE1 A.
General Considerations
1.
Article 43 of the Constitution of the Republic of Guatemala, now
repealed, recognized that:
The State guarantees as rights inherent to the human person: life,
corporal integrity, dignity and personal safety.
Although Article 54 established the death penalty, it was recognized that
the same would be extraordinary in nature and that it could not be imposed based
on presumptions, nor applied to women or minors, persons over seventy years of
age, persons accused of political crimes, nor to accused persons whose
extradition had been granted under that condition. At the same time it added
that “against sentences imposing the death penalty all pertinent legal means,
including cassation and pardon, will be admissible”. “The sentence will be
executed after all remedies have been exhausted.”
2.
As indicated in the previous chapter, Guatemala in ratifying the American
Convention on Human Rights expressed a reservation with regard to paragraph 4 of
Article 4 of the Convention adducing that the Constitution only excluded from
the application of the death penalty political crimes but not politically
related common crimes.
3.
Prior to the Government of General Ríos Montt, Guatemalan legislation
reserved the death penalty for crimes of extreme gravity.2
With his assumption of power and the creation of the Courts of Special
Jurisdiction, a number of crimes that the Penal Code punished with prison terms
became punishable by death. As a matter of fact, in accordance with Article 4 of
Decree Law 46-82 of July 1st, 1982 which created the Courts of
Special Jurisdiction, in the future, those responsible for the following crimes
will be punished with the death penalty: Article
201 (kidnapping or abduction), 283 (aggravated arson), 286 (disabling of
defenses), 287 (fabrication or possession of explosive materials), 289 (railroad
disaster), 290 (attempt against other means of transportation), 294 (attempts
against the safety of public utilities), 299 (piracy), 300 (air piracy), 302
(poisoning of water or foods or medicinal substances), 359 (treason by a
Guatemalan National), 360 (attempts against the integrity or independence of the
State), 361 (treason by a foreign resident), 376 (genocide), 391 (terrorism),
401 (cache of arms or ammunition), 404 (traffic in explosives).
4.
Beginning on March 23, 1982, the violence which characterized Guatemala
during recent years and which, as the IACHR pointed out in its first report,
translated into an excessively high number of lost lives, began to diminish in
certain aspects, although in others, as it will later be seen, that violence has
acquired new manifestations.
5.
In that sense, when studying the right to life under the Government of
General Efrain Ríos Montt, the Commission feels that it is necessary to
distinguish the situation that has developed in urban centers from that which
developed in the rural areas. Due to its particular importance, the Commission
will deal with the Courts of Special Jurisdiction in a detailed manner.
6.
The Commission must point out that the recommendation from its previous
report,--made again to the Government of General Ríos Montt as one of its
“Preliminary Recommendations” upon conclusion of its on-site
observation—of investigating and punishing with the full force of the law
those responsible for the illegal executions and disappearances, not only has
not been complied with, but the authors of those deaths were protected by the
amnesty decreed by General Ríos Montt, as indicated in Chapter I, letter H. B.
Violence in Urban Centers
1.
In its previous report, the IACHR indicated that the frightening threats,
including the publishing of lists containing the names of persons sentenced to
death by the clashing groups and factions; the kidnappings and arbitrary arrests
with subsequent disappearances; the uncovering of clandestine cemeteries; the
innumerable attempts on persons and the daily appearance, throughout the
country, of mutilated bodies with signs of having suffered brutal tortures
before being machine gunned to death, had created in Guatemala a situation where
total disregard for human life predominated.3
2.
The Commission has no doubt that one of General Ríos Montt's primary
objectives was to end that alarming situation. He so stated it during the
meeting with the Commission, when on several occasions he said to the members of
the Commission that “you will not see any more bodies on the streets,”
indicating that his Government controlled the public order and would not
tolerate that type of crime.
3.
To that end, the Government had announced the suppression of paramilitary
groups, which in the past brought a decentralization of violence, now trying to
give the Army and the Police the monopoly in the use of force. With the
dismantling of those paramilitary groups, which primarily operated in urban
areas, violence in Guatemala City and the other main urban areas has diminished
considerably.
4.
According to the information and testimony received by the Commission,
the number of kidnappings, disappearances and assassinations had been
considerably reduced beginning on March 23, 1982, when the Army took effective
control, patrolling the streets of Guatemala City and major cities in the
country 24 hours a day. For that reason, the Commission has sound basis to
presume that in those cases of kidnappings and subsequent disappearances there
was participation by the armed agents of the State.4
5.
The Commission heard credible testimonies on the reduction of violent
deaths, as, for example by Dr. Abel Giron Ortiz, Chief of the Forensic Medicine
Service of the Department of Guatemala. Dr. Giron Ortiz supported his testimony
with statistical data according to which, beginning on March 23, 1982, there had
been a considerable reduction in violent deaths in the capital city of the
Republic. Dr. Giron Ortiz added that, during 1981 and until March of 1982, there
were between 230 and 250 autopsies done a month, numbers which began to
significantly diminish from April of 1982 on, to the point that the number of
autopsies done during the month of the interview did not reach 200.5
6.
The Commission considers that the number of autopsies done is an element
of proof of relative validity because, in many cases—particularly in the rural
areas—the bodies of persons who have suffered a violent death do not turn up
immediately or the autopsy is simply not done. Nevertheless, the Commission also
feels that the numbers provided, together with other facts that the Commission
has been able to gather, allows it to conclude that, at least in the capital of
Guatemala, violent deaths have diminished beginning in March of 1982.6
7.
Although the Commission recognized that the population of Guatemala City
and the major departmental capitals now enjoy more protection with respect to
the right to life, it, at the same time believes that violence has not
disappeared and that, to a significant degree, what has occurred is that there
has been a change in the strategy of terror in terms of methods or systems used.
In effect as we will see, indiscriminate killings, the death squadrons, the
publication of lists of persons sentenced to death by the paramilitary groups,
the assassinations of community leaders that existed before the coup were
replaced by the Courts of Special Jurisdiction which functioned in secret and
were empowered to apply the death penalty. C.
Executions decreed by the Court of Special Jurisdiction
1.
The Commission feels that on this subject two aspects must be considered:
the large number of crimes punishable by the death penalty—which will be the
subject of the following paragraphs—and the composition, functioning and
characteristics of the Courts of Special Jurisdiction, which will be covered in
Chapter IV.
2.
The IACHR had knowledge of the activities of the Courts of Special
Jurisdiction even before initiating its on-site observation in Guatemala. In
effect, at 5:30 am., on September 18, 1982, while the IACHR was holding its 57th
session in San José, Costa Rica, it was informed that the Courts had sentenced
to death Messrs. Julio César Vásquez Juárez, Julio Hernández Perdomo,
Marcelino Marroquín and Jaime de la Rosa Rodríguez. The IACHR, through its
Acting President, Lic. César Sepúlveda, embarked, via telephonic
communications, on an intense effort to have the execution of the sentence
halted. His efforts were in vain and it was impossible to locate a person with
sufficient authority to attend to the request. The sentence was executed at 6:00
am. On September 18, 1982, 3 days prior to the arrival in Guatemala of the IACHR
to initiate its on-site observation of that country.
3.
The death of those four persons at the hands of a firing squad of the
regular army of Guatemala, carrying out a sentence imposed by the Court of
Special Jurisdiction—which functioned in secret, without anyone's knowledge of
its composition, location or how the proceedings were conducted—produced in
Guatemala, as the Commission later confirmed, a profound consternation reviving
in vast sectors of the population a feeling of uncertainty and insecurity.
4.
On the same day of its arrival in Guatemala, the Commission expressed to
President Ríos Montt its preoccupation with the functioning of the Courts of
Special Jurisdiction and the latest killings by firing squads. According to
notes taken by the IACHR Secretariat, the actual words of General Ríos Montt's
response were: They
are not the last ones (the shootings by firing squads). They are the first ones.
Previously, the bodies of persons executed turned up on the streets. Each person
killed whomever he wanted to kill. The courts did not impart justice. In seeing
that no justice was done, each person killed on his own. In assuming the
Presidency, I assumed responsibility for the trials. It is to set legal
precedents. Further
on, President Ríos Montt added:
I
am the one who makes the laws. I guarantee the people a just use of force.
Instead of bodies on the streets, we are going to shoot those committing crimes.
I am President, although, de facto; but I say that I am a butler, because
now, my job is to clean the house…
During its stay in the Republic of Guatemala, the Commission reiterated
to the different government authorities with whom it had the opportunity to
meet, its deep concern regarding the practice of those executions, urging, at
all times, the elimination of the death penalty and the suspension of executions
resulting from trials entrusted to the Courts of Special Jurisdiction, whose
procedural mechanisms it tried to learn.
6.
Upon conclusion of the on-site observation, the Commission forwarded to
the Government of Guatemala a document containing Preliminary Recommendations,7
which, due to their urgency and importance, it requested the Government of
Guatemala to put into practice immediately and where, among others, it
particularly exhorted the Government to suspend the execution of death sentences
and to adjust the functioning of the Courts of Special Jurisdiction to the due
process norms contained in the American Convention on Human Rights.
7.
As a consequence of these recommendations, the Government of Guatemala,
with respect to the executions, sent a cable communication to the Commission
advising that, in view of the Commission's recommendations, the Government of
Guatemala had decided to suspend the executions sine die. In his
communications dated October 26, 1982, addressed to the Executive Secretary of
the Commission, the Minister of Foreign Affairs states: IT
IS MY PLEASURE TO INFORM YOU THAT THE PRESIDENT OF THE REPUBLIC, GENERAL JOSÉ
EFRAIN RÍOS MONTT, HAS ORDERED THE SUSPENSION SINE DIE OF THE EXECUTIONS OF
PERSONS CONVICTED BY THE COURTS OF SPECIAL JURISDICTION WHILE THE JUDICIAL
PROCESS IS BROADENED TO ESTABLISH THE APPELLATE PROCEDURES THAT MAY BE USED BY
THE CONVICT AND THUS PROVIDE FOR HIS BETTER DEFENSE, IN OBSERVANCE OF THE
RECOMMENDATIONS MADE ON THE SUBJECT BY THE INTER-AMERICAN COMMISSION ON HUMAN
RIGHTS IN ITS RECENT VISIT TO GUATEMALA. ACCEPT YOUR EXCELLENCY EXECUTIVE
SECRETARY THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION. EDUARDO
CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS8
8.
For that reason, when the Commission thought that there would not be any
more deaths by firing squads, it was with astonishment that on January 24, 1983,
it received several complaints according to which another four persons would be
shot to death in the following days as a result of sentences handed down by
Courts of Special Jurisdiction and in which the complainants alleged a number of
irregularities.
9.
On that same day, the Commission opened a case under number 9038 and
rushed the following telegraph message to the Government of Guatemala: HIS
EXCELLENCY EDUARDO CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS GUATEMALA
CITY, GUATEMALA INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS HAS RECEIVED FOLLOWING COMPLAINT. “WALTER MARROQUIN,
SERGIO MARROQUIN, HECTOR HAROLDO MORALES LOPEZ AND MARCO A. GONZÁLEZ, ALLEGEDLY
MEMBERS OF THE CLANDESTINE ORGANIZATION POOR PEOPLE'S GUERRILLA ARMY (EGP) WOULD
BE EXECUTED NEXT FRIDAY JANUARY THE 28, IF THE DEATH SENTENCE THAT THE EMERGENCY
COURTS MAY HAVE IMPOSED ON THEM AS THE PRESUMED AUTHORS OF THE KIDNAPPING OF
MISS SILVIA JIMÉNEZ DE LA PEÑA WERE TO BE CONFIRMED. COMPLAINT ALSO STATED
THAT NONE OF THE ACCUSED HAS BEEN ALLOWED TO BE REPRESENTED AND DEFENDED BY
COUNSEL CHOSEN BY THEIR RELATIVES NOR HAVE THEY BEEN ALLOWED TO INTRODUCE PROOF
OF THEIR INNOCENCE BEFORE THE COURTS HEARING THIS CASE. IN THE APPEAL GRANTED,
COUNSEL HAS NOT BEEN ABLE TO LEARN THE SITUATION WITH RESPECT TO THE PROCEEDINGS
NOR HAVE THEY BEEN GRANTED ACCESS TO DEFEND THEIR CLIENTS, WHO ARE CLOSE TO
BEING SENTENCED TO DEATH DESPITE NOT HAVING BEEN ALLOWED THE GUARANTEES OF DUE
PROCESS, DEEPLY CONCERNED BY THE TENOR OF THE PRECEDING COMPLAINT, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, WITHOUT PREJUDGING THE ADMISSIBILITY
OF THE SAME, TAKES THE LIBERTY OF FORWARDING IT TO THE ENLIGHTENED GOVERNMENT OF
GUATEMALA, SO THAT IT MAY INFORM AS TO THE EXTENT OF THE SAME, AND KINDLY
REQUEST TO CONVEY TO HIS EXCELLENCY GENERAL EFRAIN RÍOS MONTT, THAT IN THE
EVENT THE COURT OF APPEALS CONFIRMS THE DEATH SENTENCE, THE SAME BE COMMUTED. WE
TAKE THIS OPPORTUNITY TO EXPRESS TO YOUR EXCELLENCY OUR ASSURANCES OF OUR
HIGHEST CONSIDERATION. MARCO G. MONROY CABRA EDMUNDO VARGAS CARREÑO CHAIRMAN
EXECUTIVE SECRETARY
10.
In response, the Government of Guatemala sent the Commission the
following cable: MR.
EDMUNDO VARGAS CARREÑO EXECUTIVE
SECRETARY INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS I
MAKE REFERENCE TO YOUR MESSAGE OF THE 25TH OF THE PRESENT MONTH
RELATING TO IMPOSITION OF DEATH PENALTY BY COURTS OF SPECIAL JURISDICTION TO
HECTOR HAROLDO MORALES LOPEZ, WALTER VINICIO MARROQUIN GONZÁLEZ, SERGIO
MARROQUIN GONZÁLEZ AND MARCO A. GONZÁLEZ. IN
THAT RESPECT I BRING TO YOUR ATTENTION THAT IN CONSTITUTIONS OF THE REPUBLIC OF
GUATEMALA AND PENAL CODE GOVERNING US FOR MANY YEARS THE DEATH PENALTY IS
IMPOSED AS MAXIMUM SENTENCE, FOR THAT REASON WHEN THE GOVERNMENT OF GUATEMALA
RATIFIED AMERICAN CONVENTION ON HUMAN RIGHTS EXPRESSED SPECIFIC RESERVATION WITH
RESPECT TO THE APPLICATION OF THAT PENALTY TAKING INTO ACCOUT THAT IN GUATEMALA
IT IS APPLIED AFTER INSTITUTING PROCEEDINGS WITH THE GUARANTEES OF DEFENSE AND
PROCEDURES ESTABLISHED BY LAW, LET ME CLARIFY THAT THE DEATH PENALTY IS NOT
APPLIED TO WOMEN, MINORS NOR BASED ON PRESUMPTIONS, FULL PROOF BEING
INDISPENSABLE, PERHAPS A NEW CONSTITUTION IN FORCE IN GUATEMALA IN THE FUTURE
MAY CHANGE THIS LEGAL SITUATION BUT FOR NOW, COURTS ARE REQUIRED IN EXTREME
CASES PROVEN, TO APPLY DEATH PENALTY FOR THE SAKE OF JUSTICE. IN SPITE OF THE
STATED POSITION ABOVE, I HAVE FORWARDED YOUR MESSAGE AS WELL AS THAT FROM OTHER
INSTITUTIONS AND PERSONALITIES WHICH HAVE MADE A SIMILAR REQUEST ON HUMANITARIAN
GROUNDS. IN CONCLUDING, LET ME REITERATE TO YOU THAT IT WILL BE COMPETENT COURTS
THE ONES DETERMINING THE APPLICATION OF COMMUTATION OF THAT SENTENCE. FOR
FURTHER INFORMATION I AM FORWARDING INSTRUMENT OF RATIFICATION GOVERNMENT OF
GUATEMALA TO AMERICAN CONVENTION ON HUMAN RIGHTS, SIGNED APRIL 24TH,
1978, WHICH CONTAINS RESERVATION MENTIONED ABOVE. KJELL EUGENIO LAUGERUD GARCÍA PRESIDENT
OF THE REPUBLIC OF GUATEMALA WHEREAS: THE
HONORABLE CONGRESS OF THE REPUBLIC, BY DECREE NUMBER 6-78, ISSUED THE 30TH
OF MARCH OF 1978, HAS GIVEN ITS APPROVAL TO THE AMERICAN CONVENTION ON HUMAN
RIGHTS, SIGNED IN SAN JOSÉ DE COSTA RICA, THE 22ND OF NOVEMBER OF
1969, BEING THE DUTY OF THE EXECUTIVE BRANCH TO FORMULATE THE RESERVATIONS IT
DEEMS APPROPRIATE TO SAFEGUARD THE LEGAL SYSTEM OF THE COUNTRY. NOW
THEREFORE: BY
THE POWERS BESTOWED UPON ME BY THE CONSTITUTION OF THE REPUBLIC I RATIFY THE
AMERICAN CONVENTION ON HUMAN RIGHTS WITH THE FOLLOWING RESERVATION: THE
GOVERNMENT OF GUATEMALA RATIFIES THE AMERICAN CONVENTION ON HUMAN RIGHTS, SIGNED
IN SAN JOSE DE COSTA RICA, THE 22ND OF NOVEMBER OF 1969, EXPRESSING ITS
RESERVATION WITH RESPECT TO ARTICLE 4, PARAGRAPH 4, OF THE SAME, SINCE THE
CONSTITUTION OF THE REPUBLIC OF GUATEMALA, IN ARTICLE 54, ONLY EXCLUDES FROM THE
APPLICATION OF THE DEATH PENALTY POLITICAL CRIMES BUT NOT COMMON CRIMES RELATED
THERETO. AND
I ORDER THAT IT BE PUBLISHED SO THAT IT BE OBSERVED AS A LAW OF THE REPUBLIC. IN
FAITH OF WHICH I SIGN THE PRESENT INSTRUMENT OF RATIFICATION, AUTHORIZED WITH
THE MAXIMUM SEAL OF THE REPUBLIC AND ENDORSED BY THE MINISTER OF FOREIGN
AFFAIRS, IN THE CITY OF GUATEMALA, ON THE TWENTY SEVENTH DAY OF APRIL ONE
THOUSAND NINE HUNDRED AND SEVENTY EIGHT. KJELL EUGENIO LAUGERUD GARCÍA PRESIDENT
OF THE REPUBLIC OF GUATEMALA THE
MINISTER OF FOREIGN AFFAIRS ADOLFO
MOLINA ORANTES SINCERELY EDUARDO
CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS
11.
Deeply concerned by the obvious intention of carrying out, at all costs,
the alleged firing squad executions ordered by the Court of Special Jurisdiction
and the erroneous interpretation the Government was giving the reservation
expressed at the time of the ratification of the American Convention, on January
26, 1983, the Commission forwarded a new message to the Government of Guatemala
requesting the commutation of the sentence and whose text reads as follows: HIS
EXCELLENCY DR.
EDUARDO CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS GUATEMALA
(GUATEMALA) I
HAVE THE HONOR OF ACKNOWLEDGING RECEIPT OF KIND TELEX FROM YOUR EXCELLENCY DATED
THE 25TH OF THE MONTH IN COURSE BY WHICH YOU INFORM THAT WITH RESPECT TO THE
IMPOSITION OF THE DEATH PENALTY BY COURTS OF SPECIAL JURISDICTION, IN
CONSTITUTION OF THE REPUBLIC OF GUATEMALA AND PENAL CODE GOVERNING FOR MANY
YEARS, THE DEATH PENALTY IS IMPOSED AS MAXIMUM SENTENCE, REASON WHY WHEN THE
GOVERNMENT OF GUATEMALA RATIFIED AMERICAN CONVENTION ON HUMAN RIGHTS EXPRESSED
SPECIFIC RESERVATION WITH RESPECT TO THE APPLICATION OF SAID PENALTY,
TRANSCRIBING, IMMEDIATELY AFTER, THE TEXT OF THE INSTRUMENT OF RATIFICATION
SIGNED APRIL 27TH, 1978. FOR
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS I AM GRATEFUL FOR THE CONTENT OF
YOUR CABLE COMMUNICATION INFORMING HAVING TRANSMITTED MESSAGE FROM THIS
ORGANIZATION AS WELL AS THAT OF OTHER INSTITUTIONS AND PERSONALITIES WHICH HAVE
MADE A SIMILAR REQUEST FOR THE COMMUTATION OF THE APPLICATION OF THE DEATH
SENTENCE TO HECTOR HAROLDO MORALES LÓPEZ, WALTER VINICIO MARROQUÍN GONZÁLEZ,
SERGIO MARROQUÍN GONZÁLEZ AND MARCO A. GONZÁLEZ, EFFORTS INSPIRED ON
HUMANITARIAN SENTIMENTS AND ALSO PROTECTED IN THE SAME CONSTITUTIONAL TEXT CITED
BY YOUR EXCELLENCY. WE
TAKE THIS OPPORTUNITY TO EXPRESS TO YOUR EXCELLENCY THE RENEWED ASSURANCES OF
OUR HIGHEST CONSIDERATION. MARCO
G. MONROY CABRA EDUARDO VARGAS CARREÑO CHAIRMAN
EXECUTIVE SECRETARY
12.
Later, the Commission received new complaints which stated that in
addition to the four persons indicated, the following persons had also been
sentenced to death by the Courts of Special Jurisdiction; Pedro Roxon Tepec,
Carlos Subuyug, Edgar Daniel Aldana, Alfonso Bonilla Chacon, Fernando Contreras
y Contreras and Eleobardo Alvarez.
13.
Extremely concerned by the new information and by the lack of response to
the cable communications and telephonic efforts made by the Executive Secretary,
under instructions of the Commission, with the Minister of Foreign Affairs in
which the Executive Secretary reminded the Minister that the imposition of the
death penalty to crimes which did not carry that penalty at the time Guatemala
ratified the American Convention on Human Rights contradicted Article 4,
paragraph 2, of that instrument, the Commission decided to send a new message on
February 9, which read as follows: HIS
EXCELLENCY DR.
EDUARDO CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS GUATEMALA,
GUATEMALA I
HAVE THE PLEASURE OF REFERRING TO YOUR KIND CABLE COMMUNICATION DATED JANUARY 26TH,
1983, WITH RELATION TO THE ANNOUNCED APPLICATION OF THE DEATH PENALTY BY COURTS
OF SPECIAL JURISDICTION TO WALTER AND SERGIO MARROQUÍN, HECTOR MORALES, MARCO
GONZÁLEZ, PEDRO ROXON TEPEC, CARLOS SUBUYUG, EDGAR DANIEL ALDANA, ALFONSO
BONILLA CHACÓN, FERNANDO CONTRERAS Y CONTRERAS AND ELEOBARDO ALVAREZ, IN
RESPONSE AND BROADENING LAST INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
CABLEGRAM, IT BEHOOVES ME TO INFORM YOU THAT THE IACHR FINDS THAT THE IMPOSITION
OF SAID PENALTY OPENLY CONTRADICTS THE LAST PART OF PARAGRAPH 2, ARTICLE 4 OF
THE AMERICAN CONVENTION ON HUMAN RIGHTS TO WHICH GUATEMALA EXPRESSED NO
RESERVATION AT THE TIME OF RATIFICATION NOR AT ANY OTHER TIME AND WHICH STATES: NOR
ITS APPLICATION (THE DEATH PENALTY) BE EXTENDED TO CRIMES TO WHICH IS NOT
CURRENTLY APPLIED. IN
EFFECT, NONE OF THE CRIMES COVERED IN THE ARTICLES OF THE PENAL CODE MENTIONED
IN ARTICLE 4 OF LAW DECREE 46082 ORIGINATOR OF THE COURTS OF SPECIAL
JURISDICTION AND WHICH AUTHORIZES THE PUNISHMENT9
AND CONSIDERING THAT ARTICLE 7 OF THE FUNDAMENTAL STATUTE OF GOVERNMENT
CURRENTLY GOVERNING GUATEMALA STATES: “GUATEMALA, AS PART OF THE INTERNATIONAL
COMMUNITY, WILL FULLY COMPLY WITH ITS INTERNATIONAL OBLIGATIONS, ABIDING, IN ITS
RELATIONS WITH THE OTHER STATES, BY THE RULES OF THIS STATUTE OF GOVERNMENT, BY
INTERNATIONAL TREATIES AND BY THE RULES OF INTERNATIONAL LAW ACCEPTED BY
GUATEMALA”, AND HAVING GUATEMALA ACCEPTED WITHOUT RESERVATIONS IN RATIFYING
THE AMERICAN CONVENTION ON HUMAN RIGHTS, THAT IN THE FUTURE, THE IMPOSITION OF
THE DEATH PENALTY WOULD NOT BE EXTENDED TO CRIMES WHICH DID NOT CARRY SUCH
PENALTY AT THE TIME OF RATIFICATION, THE COMMISSION URGES YOUR EXCELLENCY'S
GOVERNMENT THAT IN OBSERVANCE OF ARTICLE 4, PARAGRAPH 2, OF THE ABOVE MENTIONED
CONVENTION IT RESCIND THE DEATH SENTENCES IMPOSED BY THE COURTS OF SPECIAL
JURISDICTION AND AFTERWARDS MODIFY ARTICLE 4 OF LAW DECREE 46-82. WE
TAKE THIS OPPORTUNITY TO EXPRESS TO YOUR EXCELLENCY THE RENEWED ASSURANCES OF
OUR HIGHEST CONSIDERATION. MARCO
GERARDO MONROY CABRA
EDMUNDO VARGAS CARREÑO CHAIRMAN
EXECUTIVE SECRETARY
14.
The Commission received no response to that communication. On the
contrary, in the early morning of March 3, 1983, with only a few hours of
advance notice, and several days before the arrival of Pope John Paul II in
Guatemala as part of his historic visit to Central America, the shooting by
firing squad of Messrs. Walter Vinicio Marroquín González, Sergio Roberto
Marroquín González, Héctor Morales López, Carlos Subuyug Cuc, Pedro Raxon
Tepet and Marco Antonio González, took place in spite of all the efforts made
to prevent those executions, including those undertaken by the Pope himself
through the Papal Nuncio in Guatemala.
15.
On the same day the Government of Guatemala released the following
statement:
THIS MORNING SIX PERSONS TRIED FOR VERY SERIOUS CRIMES AND SENTENCED TO
DEATH ON TWO INSTANCES BY COURTS OF SPECIAL JURISDICTION AFTER THE SUPREME COURT
OF JUSTICE DENIED THE APPEAL FOR AMPARO FILLED BY THE ACCUSED, WERE SHOT TO
DEATH.
GUATEMALAN LEGISLATION CONTEMPLATES THE DEATH PENALTY ONLY FOR SERIOUS
CRIMES PRECISELY DEFINED IN OUR PENAL (CRIMINAL) SYSTEM, AND IT IS APPLIED IN
THOSE CASES WHERE THE GUILT OF THE ACCUSED IS FULLY PROVEN IN THE CORRESPONDING
PROCESSES.
TRIALS CONDUCTED BY THE COURTS OF SPECIAL JURISDICTION OBSERVE ALL THE
GUARANTEES OF DUE PROCESS, PARTICULARLY THE RIGHT TO A DEFENSE, SINCE THE
ACCUSED ARE ASSISTED BY DEFENSE COUNSEL FROM THE MOMENT OF THEIR INTERROGATION.
THE VARIOUS CRIMINAL ACTS COMMITTED BY THE ACCUSED TYPIFY THE CRIME OF
TERRORISM WHICH IS CONSIDERED A CRIME AGAINST HUMANITY AND FOR THAT REASON,
REPUDIATED BY THE INTERNATIONAL COMMUNITY.
THREE OF THEM, THE ACCUSED, BROTHERS WALTER VINICIO AND SERGIO ROBERTO
MARROQUÍN GONZÁLEZ AND HÉCTOR MORALES LÓPEZ, WERE FOUND GUILTY OF
KIDNAPPING, EXTORSION, AND OF HAVING INJURED THEIR VICTIM, MRS. SILVIA XIMENA DE
LA PEÑA FRATTA DE LÓPEZ, WHOSE FAMILY WAS FORCED TO PAY RANSOM MONEY TO OBTAIN
HER FREEDOM. AFTERWARDS, THE ACCUSED, TRIED TO EXACT ANOTHER Q.50,000.00
(US$50,000) FROM THE FAMILY AND THEIR CAPTURE WAS EFFECTED WHEN THEY WERE
RECEIVING THE EXTORSION PAYMENT. ALL THREE WERE RECOGNIZED BY THE VICTIM IN A
LINE UP OF CONVICTS. CARLOS SUBUYUG CUC, PEDRO ROXON TEPET AND MARCO ANTONIO
GONZÁLEZ, WERE FOUND GUILTY OF TERRORISM AND SUBVERSIVE ACTIVITIES, SHAMELESSLY
CONFESSING, FULLY AND FREELY, AND BOASTING OF HAVING COMMITTED THE CRIMES OF
TERRORISM THEY WERE CHARGED WITH.
THE DEATH PENALTY HAS EXISTED IN GUATEMALAN LEGISLATION FOR MORE THAN 50
YEARS AND IS APPLICABLE TO SERIOUS CRIMES COMMITTED NOW WHEN THE COUNTRY IS
UNDER A STATE OF SIEGE AND THE PUBLIC ORDER LAW IS IN FORCE, WHICH IS JURIDICAL
NECESSITY TO FIGHT SUBVERSION AND COMMON CRIMINALS WHO, LATELY, HAVE PLACED IN
PERIL THE SAFETY AND STABILITY OF THE FAMILY, SOCIETY AND STATE ITSELF.
THE SUPREME COURT OF JUSTICE, ACTING AS COURT OF AMPARO, FULLY ANALYZED
THE PROCEEDINGS INSTITUTED TO SEE IF, IN THEM, ALL THE RIGHTS OF THE ACCUSED HAD
BEEN GUARANTEED. AFTER EXAMINING THEM IT WAS DETERMINED THAT THERE WAS NO
VIOLATION OF ANY RULES OF LAW AND, CONSEQUENTLY, THE APPEAL FOR AMPARO SUBMITTED
BY THE ACCUSED'S DEFENSE LAWYERS WAS DENIED.
THE APPEAL FOR AMPARO IS AN INSTRUMENT OF LEGAL CONTROL WHOSE PURPOSE IS
TO GUARANTEE THAT GOVERNMENT MEASURES OR COURT RESOLUTIONS ARE ISSUED WITH DUE
RESPECT FOR CIVIL LIBERTIES, THE RIGHTS OF MEN AND THE FUNDAMENTAL RULES WHICH
GOVERN THE JURIDICAL LIFE OF THE COUNTRY, PREVENTING ABUSES OF POWER WITH THE
OBJECTIVE OF ENSURING THE LEGAL SYSTEM, THEREFORE, BY THE SUPREME COURT OF
JUSTICE, ACTING AS COURT OF AMPARO, DENYING THE APPEAL, THE SENTENCES DICTATED
AGAINST THE ACCUSED WERE CONFIRMED AND THE LEGAL SYSTEM DEMANDED THE EXECUTION
OF THE SENTENCES PRONOUNCED IN ACCORDANCE WITH THE LAW AND THE SYSTEM OF
SEPARATION OF POWERS OF THE STATE AND IN FULL EXERCISE OF ITS SOVEREIGNTY.
THE APPEAL FOR GRACE, DISAPPEARED FROM GUATEMALAN LEGISLATION BEING
CONSIDERED ANACHRONISTIC. PARDON, IS GENERAL IN CHARACTER AND DOES NOT APPLY TO
VERY SERIOUS CRIMES WHICH HAVE SHOCKED THE CONSCIENCE OF THE CITIZENRY, IN WHICH
CASES SPECIFIC LAWS EXPRESSLY OMIT IT, AS IN THE CASE OF THE LAW OF AMPARO.
16.
As it was expected, these executions and the circumstances in which they
took place produced deep consternation throughout the world. Thus, that same
day, March 3, an official spokesman of the Vatican states that: “In learning
of the dramatic, unexpected and incredible news, the Holy Father has expressed
his deepest sorrow, particularly since he is on the eve of his already scheduled
visit to that country.”10
17.
Moreover, the Government of Honduras, due to the fact that one of the men
shot to death, Marco Antonio González, was an Honduran national, strongly
condemned the incident through a statement from the Ministry of Foreign Affairs
indicating, at the same time, the several contradictions incurred by the
Government of Guatemala, which had even assured the Foreign Ministry of Honduras
that the “possibility of the execution of González was out of the
question”, whom the Honduran Government had described as “a compatriot who
has been carefully investigated by the Honduran authorities, not finding any
criminal record nor any connection with terrorist groups.” The official
statement of the Government of Honduras concludes expressing that “the news of
the execution of Marco Antonio González has caused it enormous surprise and
profound sorrow since the judicial process that led him to his death was
vitiated in form and substance.”
18.
For its part, the IACHR, also on the same day that the six persons were
executed, sent the Government of Guatemala the following cablegram, which it
later released to the public. HIS
EXCELLENCY DR.
EDUARDO CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS GUATEMALA
(GUATEMALA)
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS HAS LEARNED WITH ASTONISHMENT
THAT IN THE EARLY MORNING OF TODAY, IN EXECUTION OF SENTENCES DICTATED BY COURTS
OF SPECIAL JURISDICTION, SOME OF THE PERSONS WHO HAD BEEN TRIED BY THOSE COURTS
WERE SHOT TO DEATH IN GUATEMALA. THE ASTONISHMENT IS ALL THE GREATER SINCE THIS
COMMISSION HAD ADDRESSED THE GUATEMALAN GOVERNMENT THROUGH CABLE COMMUNICATION
DATED FEBRUARY 9, 1983, URGING THAT IN OBSERVANCE OF ITS INTERNATIONAL
COMMITMENTS, WHICH IT PROFESSES TO RESPECT IN ARTICLE 7 OF THE FUNDAMENTAL
STATUTE OF GOVERNMENT, IT RESCIND THE DEATH SENTENCE DICTATED BY THE COURTS OF
SPECIAL JURISDICTION AND LATER MODIFY DECREE LAW 46-82, ORIGINATOR OF THOSE
COURTS.
AT THAT TIME, IT WAS EXPRESSED TO THE GOVERNMENT OF GUATEMALA THAT THE
IACHR FINDS THAT THE IMPOSITION OF SUCH PENALTY IS IN OPEN CONTRADICTION TO WHAT
IS STATED IN THE LAST PART OF PARAGRAPH 2 ARTICLE 4, OF THE AMERICAN CONVENTION
ON HUMAN RIGHTS TO WHICH GUATEMALA EXPRESSED NO RESERVATION AT THE TIME OF
RATIFICATION NOR AT ANY OTHER TIME AND ACCORDING TO WHICH THE IMPOSITION OF THE
DEATH PENALTY WOULD NOT BE EXTENDED TO CRIMES WHICH DID NOT PREVIOUSLY CARRY
SUCH PENALTY, WHICH WAS THE CASE OF THE PERSONS EXECUTED, WHO HAD BEEN TRIED AND
SENTENCED TO DEATH FOR CRIMES WHICH WERE NOT SANCTIONED WITH THE DEATH PENALTY
IN THE PENAL CODE OF GUATEMALA. THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
DEPLORES THAT THE GOVERNMENT OF GUATEMALA PROCEEDED WITH THE EXECUTION OF THE
SENTENCES IN QUESTION, AND THAT IT HAS YET TO RESPOND TO THE REFERRED CABLE
COMMUNICATION AND EXHORTS IT TO, IN APPLICATION OF PARAGRAPH 2 ARTICLE 4, OF THE
AMERICAN CONVENTION ON HUMAN RIGHTS, ABSTAIN FROM IMPOSING THE DEATH PENALTY FOR
CRIMES NOT CARRYING THAT PENALTY IN THE PENAL CODE IN FORCE AT THE TIME SAID
CONVENTION WAS RATIFIED, AND TO RESPECT AND DULY OBEY THE INTERNATIONAL
COMMITMENTS IN THEIR MOST FAVORABLE INTERPRETATION FOR THE PROTECTION OF LIFE
AND THE OTHER HUMAN RIGHTS.
I TAKE THIS OPPORTUNITY TO EXPRESS, YOUR EXCELLENCY THE RENEWED
ASSURANCES OF MY HIGHEST CONSIDERATION. MARCO G. MONROY CABRA DAVID J. PADILLA
CHAIRMAN
ASSISTANT EXECUTIVE SECRETARY
19.
On March 15, 1983, the Government of Guatemala responded to this last
IACHR communication, in the following terms: DR.
MARCO GERARDO MONROY CABRA CHAIRMAN
OF THE INTER-AMERICAN COMMISSION ON
HUMAN RIGHTS DR.
DAVID PADILLA ASSISTANT
EXECUTIVE SECRETARY ORGANIZATION
OF AMERICAN STATES WASHINGTON,
D.C.
I ACKNOWLEDGE RECEIPT OF YOUR TELEX 351 OF MARCH 3, OF THIS YEAR. I WOULD
LIKE TO POINT OUT TO YOU THAT PARAGRAPH 2, OF ARTICLE 4, OF THE AMERICAN
CONVENTION ON HUMAN RIGHTS TEXTUALLY STATES THAT: “IN THOSE COUNTRIES WHICH
HAVE NOT ABOLISHED THE DEATH PENALTY, THIS COULD ONLY BE IMPOSED FOR THE MOST
SERIOUS CRIMES, IN COMPLIANCE WITH VERIFIED SENTENCE FROM COMPETENT COURT AND IN
ACCORDANCE WITH A LAW THAT ESTABLISHES SUCH PENALTY, ENACTED PRIOR TO THE
COMMISSION OF THE CRIME. ITS APPLICATION WILL NEITHER BE EXTENDED TO CRIMES TO
WHICH IS NOT PRESENTLY APPLIED.” IN THE PROCEEDINGS IN WHICH THE DEATH PENALTY
WAS IMPOSED, THE PROVISIONS OF THAT ARTICLE ARE FULLY MET SINCE:
A) IN GUATEMALA THE DEATH PENALTY
HAS BEEN IN FORCE FOR MORE THAN FIFTY YEARS.
B) IT IS ONLY IMPOSED FOR VERY
SERIOUS CRIMES.
C) IT IS ONLY EXECUTED IN COMPLIANCE
WITH A VERIFIED SENTENCE OF A COMPETENT COURT.
D) THE COURTS OF SPECIAL
JURISDICTION LAW, WHICH ESTABLISHED THE DEATH PENALTY AND EXPRESSLY CITES THE
CRIMES WHICH CARRY THAT PENALTY, WAS PROMULGATED PRIOR TO THE COMMISSION OF THE
CRIMES.
AS FAR AS THE CONVENTION ESTABLISHING THAT THE DEATH PENALTY MUST NOT BE
IMPOSED ON CRIMES FOR WHICH IT WAS NOT INDICATED IN THE INTERNAL LEGISLATION OF
A COUNTRY AT THE TIME OF RATIFYING THE CONVENTION, IT IS EVIDENT THAT THIS
PRECEPT CANNOT LIMIT THE SOVEREIGN POWER OF THE STATES TO MODIFY THEIR INTERNAL
CRIMINAL LEGISLATION, WHEN THE SPECIAL OR EXCEPTIONAL CIRCUMSTANCES IN A COUNTRY
MAKES IT IMPERATIVE TO SANCTION WITH THE DEATH PENALTY THE COMMISSION OF SERIOUS
CRIMES, AS A PROTECTIVE MEASURE FOR SOCIETY ITSELF.
THE COUNTRIES WHICH CONFRONT THE PROBLEM OF SUBVERSION, WHOSE ELEMENTS CONTINUOUSLY
COMMIT SERIOUS COMMON CRIMES FOR POLITICAL PURPOSES, ARE OBLIGATED, BASED ON THE
DUTY TO GUARANTEE THE SAFETY OF THE CITIZENRY, TO TAKE THE NECESSARY MEASURES TO
COMBAT THE CRIMINALS, FOR THEY CONSTITUTE A PUBLIC DANGER AND THEIR ACTIONS ARE
A THREAT TO THE POPULATION.
THEREFORE, A RIGID AND RESTRICTIVE INTERPRETATION OF THE AFOREMENTIONED
DISPOSITION ONLY LEADS TO THE SITUATION THAT ANY STATE WHICH HAS RATIFIED THE
CONVENTION IN QUESTION, IS DEPRIVED OF THE SOVEREIGN POWER TO MODIFY ITS
INTERNAL LEGISLATION, WHICH WOULD NEGATE THE FACT THAT THE LAW, BY DEFINITION,
IS ESSENTIALLY MODIFIABLE AND THAT IT MUST BE ADAPTED TO THE SOCIAL
CHANGES—POSITIVE AND/OR NEGATIVE—WHICH TAKE PLACE IN ALL NATIONS.
BESIDES, IN RATIFYING THE AMERICAN CONVENTION ON HUMAN RIGHTS GUATEMALA
EXPRESSED SPECIFIC RESERVATION IN THE SENSE THAT IT WOULD CONTINUE TO IMPOSE THE
DEATH PENALTY TO COMMON CRIMES RELATED TO POLITICAL CRIMES.
THE RESERVATION MUST BE INTERPRETED IN GENERAL TERMS, SINCE THE FACT THAT
PARAGRAPH 4 OF ARTICLE 4 OF THE CONVENTION WAS SPECIFICALLY CITED IS BECAUSE
THAT IS WHERE THE PROHIBITION TO THE APPLICATION OF THE DEATH PENALTY TO COMMON
CRIMES RELATED TO POLITICAL ONES IS CONTAINED, BUT THE RESERVATION SHOULD NOT IN
ANY WAY BE INTERPRETED TO REFER ONLY TO THAT PARAGRAPH, BUT TO ANY PART OF THE
CONVENTION WHERE THERE IS A SIMILAR RULE.
THE PERSONS WHO WERE EXECUTED WERE FOUND GUILTY OF SERIOUS COMMON CRIMES
COMMITTED WITH POLITICAL MOTIVATIONS. THE ACCUSED WALTER VINICIO MARROQUÍN GONZÁLEZ,
SERGIO ROBERTO MARROQUÍN GONZÁLEZ, AND HÉCTOR HAROLDO MORALES LÓPEZ, WERE
FOUND GUILTY OF THE CRIMES OF KIDNAPPING AND EXTORTION.
THE ACTS OF WHICH THEY WERE ACCUSED ARE THE FOLLOWING: ON JULY 15, 1982,
AT 14:00 HOURS, ON 20TH STREET AND AVENIDA LA REFORMA, ON ZONE 9 OF
THE CAPITAL CITY, THEY KIDNAPPED MRS. SILVIA XIMENA DE LA PEÑA FRATTA DE LÓPEZ,
WHOM THEY DRUGGED AND LATER TOOK TO “EL TRESOL” MOTEL LOCATED IN ZONE 8, AS
WELL AS TO OTHER PLACES, AVOIDING BEING FOUND BY THE SECURITY FORCES, WHILE THEY
KEPT THEIR VICTIM SEDATED AND WHOM THEY ALSO RAPED.
DURING THE KIDNAPPING THE ACCUSED WALTER VINICIO MARROQUÍN GONZÁLEZ,
IDENTIFIED HIMSELF AS “COMMANDER FERNANDO” AND CLAIMED TO BELONG TO A
DISSIDENT GROUP OF THE EGP. AS SUCH, HE DEMANDED OF DOCTOR ALEJANDRO ENRIQUE DE
LA PEÑA, FATHER OF THE KIDNAP VICTIM, THE SUM OF SEVENTY FIVE THOUSAND
QUETZALES (Q.75,000.00) IN EXCHANGE FOR HIS DAUGHTER'S FREEDOM AND THREATENED
HIM THAT, IF HE DIDN'T PAY, THE KIDNAPPED WOMAN WOULD BE ASSASSINATED.
AFTER A SERIES OF NEGOTIATIONS, TELEPHONE CALLS AND PRESSURE BY THE
KIDNAPPERS, THE FATHER OF THE VICTIM AGREED TO PAY TEN THOUSAND QUETZALES
(Q.10,000.00) AND THE KIDNAPPED WOMAN WAS LEFT BY HER KIDNAPPERS AT THE MAC
DONALD'S RESTAURANT ON ZONE 9, WHERE SHE WAS FOUND UNDER THE EFFECTS OF A DRUG.
DAYS LATER THE KIDNAPPED WOMAN RECEIVED A TELEPHONE CALL, HER
INTERLOCUTOR IDENTIFIED HIMSELF ONCE MORE AS “COMMANDER FERNANDO” TELLING
HER THAT HER FATHER SHOULD PAY AN ADDITIONAL FIFTY THOUSAND QUETZALES
(Q.50,000.00) AS A WAR TAX UNDER THREAT OF KILLING HER TWO BROTHERS.
THE FATHER OF THE VICTIM DECIDED TO INFORM THE AUTHORITIES OF THE
KIDNAPPING OF HIS DAUGHTER, THE RANSOM PAYMENT, HER LATER RELEASE, AS WELL AS
THE NEW THREATS BEING MADE BY THE KIDNAPPERS.
IN ORDER TO CAPTURE THE KIDNAPPERS A PLAN WAS DEVISED, THERE WAS A PERIOD
OF NEGOTIATIONS AND BARGAINING, AND FINALLY ACCEPTED PAYMENT OF THE WAR TAX,
SETTING THE PLACE, DATE AND TIME OF PAYMENT.
THE PLAN WAS FOLLOWED TO ITS CONCLUSION. DOCTOR DE LA PEÑA WENT TO THE
CONVENED SITE, PRESUMABLY CARRYING THE MONEY FOR THE WAR TAX, AND AT THE MOMENT
HE WAS HANDING OVER THE MONEY THE AUTHORITIES APPEARED AND CAPTURED THE
KIDNAPPERS.
THE ACCUSED WALTER VINICIO MARROQUÍN GONZÁLEZ, WHO DURING THE
KIDNAPPING ACTED AS “COMMANDER FERNANDO” MET DOCTOR DE LA PEÑA AND HIS
DAUGHTER WHEN THEY DISCUSSED THE SALE OF A LIFE INSURANCE POLICY.
CARLOS SUBUYUG CUJ, PEDRO RAXON TEPET AND MARCO ANTONIO GONZÁLEZ WERE
FOUND GUILTY OF A NUMBER OF CRIMES SUCH AS POSSESSION OF EXPLOSIVE MATERIALS,
KILLINGS BY PLACING BOMBS IN THE PATH OF MILITARY UNITS CAUSING SEVERAL DEATHS,
ASSAULT AND ROBBERY OF INTERDEPARTMENTAL BUSES, WHICH CHARACTERIZED THE IMAGE OF
TERRORISM, WHICH THE INTERNATIONAL COMMUNITY HAS CONSIDERED AS A CRIMINAL ACT TO
BE CENSORED UNDER ANY CIRCUMSTANCES.
ALL THREE COMMITTED THE COMMON CRIMES WITH POLITICAL MOTIVES, SINCE THEY
CONFESSED BEING MEMBERS OF THE CLANDESTINE GROUP CALLED THE POOR'S PEOPLE
GUERRILLA ARMY (EGP).
THE DEFENSE LAWYERS OF ALL THE ACCUSED SUBMITTED AT THE OPPORTUNE TIME
THE APPEAL FOR AMPARO, WHICH THE HONORABLE SUPREME COURT OF JUSTICE HEARD, AND
AFTER DULY SUBSTANTIATING IT AND COMPLETING ALL THE STEPS OF THE PROCESS
ESTABLISHED FOR THIS APPEAL, INCLUDING A PUBLIC HEARING REQUESTED BY THE DEFENSE
COUNSEL, DENIED THE APPEAL SINCE IT DID NOT FIND VIOLATIONS OF ANY KIND OF THE
PROVISIONS OF THE FUNDAMENTAL STATUTE OF GOVERNMENT AND IN ADDITION, VERIFIED
THAT THE ACCUSED HAD A LEGAL TRIAL AND HAD, AT ALL TIMES, THE GUARANTEES OF A
DEFENSE DURING TRIAL.
I MUST EXPRESS TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, THAT
ABOVE ALL, AS A SACRED DUTY OF THE PUBLIC POWER, UNRENOUNCEABLE, ALL GOVERNMENTS
HAVE THE OBLIGATION OF MAINTAINING THE PUBLIC ORDER IN THE MANNER IN WHICH THE
NATIONAL CIRCUMSTANCES DEMAND IT, AND NOT ACCORDING TO THE DESIGNS OF THOSE WHO
ERECT THEMSELVES INTO INFLEXIBLE JUDGES TO CONDEMN ONLY ONE OF THE SIDES IN THE
STRUGGLE. THIS DEFENSE OF THE PUBLIC ORDER, OF THE NATIONAL SECURITY, OF THE
INTEGRITY OF THE PEOPLE WHO LIVE IN GUATEMALA, CANNOT BE CONSIDERED A VIOLATION
OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, AND MY GOVERNMENT FEELS THAT ADVERSE
JUDGMENT CANNOT BE PASSED AGAINST THE LEGITIMATE ACTION OF GUATEMALA IN THE
VITAL PRESERVATION OF ITS INSTITUTIONS, WHICH ARE THE BASIS FOR THE SECURITY AND
PEACE OF THE NATION AND THAT ALL MEASURES DEEMED PERTINENT MAY BE TAKEN AGAINST
GUATEMALA, BUT I CAN ASSURE YOU THAT NOT ONE OF THEM LESSENS THE RIGHT TO THE
LEGITIMATE DEFENSE OF A STATE, IN THIS CASE GUATEMALA, A RIGHT AFFIRMED BY THE
CHARTERS OF THE UNITED NATIONS AND THE ORGANIZATION OF AMERICAN STATES.
FINALLY, I BEG YOU GIVE THIS RESPONSE FROM MY GOVERNMENT THE WIDEST
INTERNATIONAL DISSEMINATION WITH THE ABSOLUTE CONVICTION THAT IT WILL MAKE MANY
STATESMEN, SOCIOLOGISTS, JURISTS, MORALISTS AND GOVERNMENTS SERIOUSLY REFLECT ON
THE MATTER. IT IS VERY EASY TO BE ASTONISHED, AS YOU AFFIRM, WHEN ONE DOES NOT
HAVE THE RESPONSIBILITY TO MAINTAIN THE DIGNITY, INTEGRITY AND THE IDENTITY OF A
NATION.
ACCEPT THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION. EDUARDO
CASTILLO ARRIOLA MINISTER
OF FOREIGN AFFAIRS OF
THE REPUBLIC OF GUATEMALA
[ Table of Contents | Previous | Next ]
1
Article 4 of the American Convention on Human Rights or Pact of San
José de Costa Rica, Right to Life, established that: 1.
Every person has the right to have his life respected. This right shall be
protected by law and, in general, from the moment of conception. No one
shall be arbitrarily deprived of his life. 2. 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. 3. The death
penalty shall not be reestablished in states that have abolished it. 4. In
no case shall capital punishment be inflicted for political offenses or
related common crimes. 5. Capital punishment shall not be imposed upon
persons who, at the time the crime was committed, were under 18 years of age
or over 70 years of age; nor shall it be applied to pregnant women. 6. Every
person condemned to death shall have the right to apply for amnesty, pardon,
or commutation of sentence, which may be granted in all cases. Capital
punishment shall not be imposed while such a petition is pending decision by
the competent authority. 2
Until July 1, 1982, the Penal Code contemplated the death penalty
only for the following crimes: Patricide, when there are contributing
aggravating circumstances (Article 131); qualified murder, when there are
aggravating circumstances (Article 132); qualified rape, if it results in
the death of the victim and she is under 10 years of age (Article 175),
abduction or kidnapping, if kidnap victim dies (Article 201); assassination
of the President of the Republic, or Vice-President acting as President, if
there were several aggravating circumstances (Article 383). 3
OAS document Ser.L/V/II.53, doc. 21, rev. 2, of October 13, 1981,
page 38. 4
This problem will be analyzed in Chapter III, in the section dealing
with disappearances. 5
According to the books the Commission examined at the Forensic
Medicine Service of the Department of Guatemala, the number of autopsies
done monthly between January of 1981 and March of 1982 were: 231 in January
1981; 247 in February; 220 in March; 190 in April; 228 in May; 208 in June;
245 in July; 263 in August; 167 in September; 237 in October; 214 in
November; 295 in December; 230 in January 1982, 276 in February and 203 in
March of that year. On the other hand, after the coup d'etat and up
until the IACHR visit (September 1982) the statistics were: 171 in April,
184 in May; 144 in June; 160 in July and 198 in August. 6
Information provided by the Chief of Forensic Medicine Service of the
Department of Guatemala: AUTOPSIES
DONE DURING THE MONTH OF JULY OF 1981 Firearms
wounds.......... ...........................................................................
102 Wounds
following an explosion.................................................................... 13 Machete
wounds............ .............................................................................
2 Other
causes (traffic accidents, common illness, suicides, etc)....
.................. 128 Total....
....................................................................................................
245 AUTOPSIES
PERFORMED DURING THE MONTH OF JULY 1982 Firearms
wounds.......... ..............................................................................28 Wounds
following an explosion......... ............................................................ 0 Machete
wounds............ .............................................................................
1 Other
causes (traffic accidents, common illness, suicides, etc.)...
.................. 131 Total....
...................................................................................................
160 7
See Introduction, page 25 and following pages. 8
As can bee seen in the text of the Preliminary Recommendations, these
went much further that the “broadening of the judicial process to
establish the appellate procedures that may be used by the convicted
person.” What the IACHR recommended simply was: to “modify the law
creating the Courts of Special Jurisdiction adjusting the text of the same
to the judicial guarantees indispensable to due process included in the
American Convention on Human Rights, which should not be suspended even in
emergency situations. To that end, the Commission feels that the Government
could appoint a commission of Guatemalan jurists that could assist it in the
drafting of a new text” and that “while the preceding recommendations
are not carried out, all executions of death sentences be suspended.” 9
The crimes to which Article 4 of Law Decree 46082 imposed the death
penalty, carried the following penalties under the Penal Code: Article
201: (Abduction or kidnapping), 8 to 15 years in prison, although the
death penalty could be imposed on the person responsible for the crime when,
as a result of the abduction or kidnapping, the kidnapped victim died; Article
283: (Aggravated Arson), 4 to 12 years in prison; Article 286:
(Disabling of Defense), 1 to 6 years prison term; Article 287:
(Fabrication or possession of explosive materials), prison term from 2 to 6
years; Article 289: (Railroad disaster, 4 to 12 years in prison; Article
290: (Attempts against the safety of maritime, fluvial or air
transports), prison term from 2 to 5 years; Article 291: (Maritime,
fluvial or air disaster), 4 to 12 years in prison; Article 292:
(Attempt against other means of transportation), 1 to 3 years in prison. If
abduction results from the attempt, the person responsible could be
sentenced to a prison term from 2 to 5 years; Article 294: (Attempt
against the safety of public utilities), 1 to 5 years in prison; Article
299 (Piracy), 3 to 15 years in prison; Article 300: (Hijacking),
3 to 15 years in prison; Article 302: (Poisoning of water or foods or
medicinal substances), 3 to 8 years in prison; Article 359: (Treason
by Guatemalan national), 10 to 20 years in prison; Article 360:
(Attempts against the integrity or independence of the State), 10 to 20
years in prison; Article 361: (Treason by foreign resident), 5 to 15
years in prison; Article 376: (Genocide), 20 to 30 years in prison; Article
391: (Terrorism), 5 to 15 years in prison. If explosive materials are
used or if as a result of the act any person is injured or killed, the
person responsible for the act could be sentenced to a prison term from 10
to 30 years. 10
In addition, the Papal Nuncio in Guatemala, Monsignor Oriano Quilici,
released the following statement: “Last February 16th, the Holy
See, moved by humanitarian reasons and Christian charity and in keeping with
its mission of promoting justice and peace in the world, officially
expressed, through me, to the Guatemalan Chief of State its deep sorrow and
concern for the executions carried out last September and for the
possibility of new executions. By
express request of His Eminence Cardinal Agostino Casaroli, Secretary of
State, this morning I have urgently requested an audience with His
Excellency the President of the Republic, to formally and officially ask, in
the name of the Holy Father John Paul II, the commutation of the death
sentence for the six convicted men. Unfortunately,
I have just been informed that at daybreak today, the sentences had been
carried out. This deplorable incident occurring so close to the projected
visit of Pope John Paul II to Guatemala, is considered by the Holy See as
'incredible' for its possible serious repercussions worldwide, nationally
and also at the Holy See itself. At
the same time, His Holiness John Paul II sent the following telegraphic
message to the Episcopal Conference of Guatemala: 'As I prepare to meet the
people of Guatemala in this pastoral visit which also aims to create a
climate conducive to pacifying spirits, I cannot avoid thinking with immense
sorrow on the recent executions carried out in that nation and invoke divine
mercy for all the deceased of that country and of Central America,
particularly those who have suffered a violent death. At the same time, I
express sincere wishes that the visit may constitute an incentive toward the
promotion and respect of the rights of man and to whose observance I
referred yesterday talking to the members of the Inter-American Court of
Human Rights. Joannes
Paulus PP.II.'”
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