| United Nations | A/50/482 |
General Assembly
Distr. GENERAL
12 October 1995
ORIGINAL:
SPANISH
Fiftieth session
Agenda item 45
THE SITUATION IN CENTRAL AMERICA: PROCEDURES FOR THE
ESTABLISHMENT OF A FIRM AND LASTING PEACE AND PROGRESS
IN FASHIONING A REGION OF PEACE, FREEDOM, DEMOCRACY
AND DEVELOPMENT
Note by the Secretary-General
1. This document contains the third report of the Director of the United
Nations Mission for the Verification of Human Rights and of Compliance with
the Commitments of the Comprehensive Agreement on Human Rights in Guatemala
(MINUGUA). The present document, like the two previous reports of the
Director (A/49/856 and Corr.1 and A/49/929), gives a detailed account of
the work carried out to date and of problems and progress noted by the
Mission in fulfilling its mandate in the field.
2. This report covers the period from 21 May to 21 August and, whereas the
format is the same as in the two former reports as far as content is
concerned, it sets out in greater detail the initial steps taken to
implement projects relating to the institution-building. As usual, I shall
send a copy of this report to the United Nations High Commissioner for
Human Rights with the request that it be transmitted to the United Nations
Commission on Human Rights.
3. I should like to thank the Government of Guatemala and the Unidad
Revolucionaria Nacional Guatemalteca (URNG) for their continued support and
cooperation, without which this work could not have been accomplished.
Similarly, I should like to express my deep gratitude to the Group of
Friends of the Guatemalan Peace Process (Colombia, Mexico, Norway, Spain,
the United States of America and Venezuela) for the constant and invaluable
support they have given to the Mission; to the Governments of Argentina,
Brazil, Canada, Colombia, Italy, Spain and Sweden for having offered the
services of their military officers.
95-29218 (E) 161095 191095/...
*9529218*
Annex
Third report of the Director of the United Nations Mission
for the Verification of Human Rights and of Compliance with
the Commitments of the Comprehensive Agreement on Human
Rights in Guatemala
I. INTRODUCTION
1. Since its establishment by General Assembly resolution 48/267 of 19
September 1994, the United Nations Mission for the Verification of Human
Rights and of Compliance with the Commitments of the Comprehensive
Agreement on Human Rights in Guatemala (MINUGUA) has carried out its
mandate of monitoring compliance by the Government of Guatemala and the
Unidad Revolucionaria Nacional Guatemalteca (URNG) with the Comprehensive
Agreement on Human Rights, which both parties signed on 29 March 1994
(A/48/928-S/1994/448, annex I).
2. This report covers the period from 21 May to 21 August 1995. The
Mission has continued to receive complaints of alleged violations of rights
and, in accordance with its mandate, has pursued its work of institution-
building. During the period under review, in addition to Norway's pledged
contribution of US$ 1 million, the Trust Fund received support from the
United States of America (US$ 500,000), from Denmark (US$ 200,000) and from
Sweden (SKr 10 million).
3. The parties have continued to hold bilateral meetings as provided for
in the Comprehensive Agreement. The Director has continued his periodic
meetings with the President of the Republic and, in Mexico, with the URNG
General Command. Similarly, a close relationship has been maintained
between the Mission and its official counterpart in the Government, the
Presidential Human Rights Committee (COPREDEH), and regular meetings have
been held with ministries and State bodies involved in the protection of
human rights.
4. In the Agreement on Identity and Rights of Indigenous People, signed on
31 March 1995 (A/49/882-S/1995/256, annex), the Government of Guatemala and
URNG agreed to request MINUGUA to monitor compliance with those aspects
which relate to human rights and which were recognized as requiring
immediate implementation. Accordingly, the Director, at the request of the
Secretary-General, assessed whether additional resources would be required
for that purpose.
5. Shortly after the issuance of the second report of the Director of
MINUGUA, which was transmitted to the General Assembly by the Secretary-
General in his note of 29 June 1995 (A/49/929), the Secretary-General
submitted a further report (A/49/955) to which was annexed the Director's
assessment recommending a six-month extension of the Mission's mandate, to
18 March 1996, and requesting additional resources to ensure effective
implementation of this additional mandate.
II. CONTEXT IN WHICH THE MISSION IS OPERATING
6. During the period under review, the Mission operated against the
background of a number of factors: an intensification of political
activity, owing to the forthcoming elections scheduled for November; the
decision by URNG to declare a cease-fire for the two-week period leading up
to the elections; the persistent climate of violence and public insecurity;
the announcement by the President of the Republic that military
Commissioners would soon be demobilized; the culmination of the exhumations
from clandestine cemeteries; the controversy over the practice of
telephone-tapping; the ongoing peace negotiations between the Government
and URNG and the undertaking made in Contadora, Panama, by different
political parties to respect whatever agreements may be reached.
7. The second report of the Mission was welcomed by the media and the
various sectors of Guatemalan society, which described it as objective,
fair and impartial.
8. The country's political agenda is dominated by the electoral process
now under way, which will culminate on 12 November with elections to choose
the President and Vice-President of the Republic, deputies to the Congress
and the Central American Parliament and members of municipal bodies. If no
presidential candidate obtains an absolute majority, there will be a second
round on 7 January 1996 between the two candidates with the highest number
of votes.
9. Compared with previous elections, the registration of parties and
candidates reveals the participation of sectors which, in the country's
recent history, have remained outside of the electoral process. For
example, there has been the formation of the Frente Democratico Nueva
Guatemala (FDNG) and numerous civilian election boards, a legal mechanism
for participation at the municipal level. The URNG has urged the public to
vote and has announced a cease-fire from 1 to 13 November. President
Ramiro de Leon Carpio has also attempted to encourage a high turn-out at
the polls by meeting with representatives of the political parties.
Nevertheless, the electoral process will inevitably be influenced by the
adverse effects of the armed conflict.
10. As regards the registration of candidates, the deadline for which
expires on 13 September, there is still a controversy over the candidacy of
Carlos Lopez Giron, who has been accused of the murder of Jorge Carpio
(para. 64) and Juan Jose Rodil Peralta, former President of the Supreme
Court of Justice, wanted by the authorities for various offences.
11. The society has continued to suffer from the climate of generalized
violence and public uncertainty, as demonstrated by the high rate of
abductions and violent deaths and by the proliferation and use of firearms.
Violence has even claimed the lives of women and children, including the
son of a Mexican diplomat. There continues to be a steady rise in the
number of private security companies and self-defence groups, such as
neighbourhood watch groups, which now number over 1,200 at the national
level, according to various sources.
12. On 30 June, the President of the Republic announced his decision to
demobilize approximately 25,000 military Commissioners with effect from 15
September. The Mission emphasized the importance of implementing this
measure. Military Commissioners have been repeatedly identified in
previous Mission reports as well as by human rights activists, including
the independent United Nations expert, Monica Pinto, for their involvement
in acts of violence, harassment and intimidation against the civilian
population.
13. The Congress of the Republic adopted two important laws designed to
improve the human rights situation: Decree Law No. 17/73, which classifies
torture as an offence under the Penal Code, and Decree Law No. 60/95,
concerning the reduction of risk to the inhabitants of areas affected by
the armed confrontation, by means of the removal and deactivation of mines
and other explosive devices.
14. Public attention has also been focused on the exhumations carried out
in clandestine cemeteries in Las Dos Erres, Peten, and Cuarto Pueblo,
Quiche, as a result of efforts to cast light on the massacre of hundreds of
inhabitants of these localities in 1982. In this connection, the Minister
of Defence stated publicly that there might be over 40,000 corpses buried
in clandestine cemeteries in Guatemala.
15. The scandal in Congress over the recording of telephone conversations
of government officials resulted in a public debate over telephone-tapping,
which is a violation of the constitutionally protected right to secrecy of
telephone conversations. The Vice-President of the Republic declared to
the press that such acts were not offences and the Minister of Defence
affirmed that the army was authorized to listen in to telephone
conversations whenever it considered it necessary.
16. On 21 June, the donor countries and organizations that provide
assistance to Guatemala met in Paris under the auspices of the World Bank.
The participants expressed support for the work of MINUGUA, making their
assistance contingent upon progress in the negotiating process and
implementation of the Mission's recommendations.
17. Finally, the negotiating process was supported publicly by the main
political parties; on 22 August, at a conference organized by the Central
American Parliament, these parties endorsed the undertaking to support
whatever agreements might be reached as being of vital importance to the
signatory Government.
III. VERIFICATION OF RESPECT FOR HUMAN RIGHTS AND OF
FULFILMENT OF OTHER COMMITMENTS MADE IN THE
COMPREHENSIVE AGREEMENT
18. The Mission has the task of verifying, in particular, respect for
those human rights identified by the parties as priority rights and of
monitoring fulfilment of the commitments made in the Comprehensive
Agreement. This aspect of the Mission, which refers to phenomena that are
particularly important in the Guatemalan context, makes it possible to have
a deeper insight into the root causes of the human rights violations in
that country.
19. The Government is the principal legal and political entity
responsible for the human rights situation in the country. Furthermore,
the onus of the majority of commitments contained in the Comprehensive
Agreement falls on it. Nevertheless, as indicated in the second report
(para. 18), it is the Mission's view that both the State and URNG are bound
to respect human rights by virtue of the commitments made under the
Comprehensive Agreement, in keeping with the trend to broaden the coverage
of protection of and respect for these rights by different State bodies.
20. Certain sections of this report contain examples of specific cases,
but the conclusions are based on overall findings of the verification
process. As indicated in previous reports, the conclusions are based not
only on statistical data but also on the problems revealed by the most
serious situations, the reaction of State institutions and the attention
given by the parties to the Mission's recommendations.
Commitment I. General commitment regarding human rights
21. Fulfilment of this commitment is assessed both from the point of view
of the rights to which the Agreement gives priority and from that of the
attention that the parties pay to the Mission's recommendations. These
last-mentioned, in particular the recommendations relating to the campaign
against impunity, have failed to elicit any initiative on the part of the
Government to put them into practice, except for the establishment of a
liaison committee, coordinated by the Presidential Human Rights Committee
(COPREDEH), to work out a follow-up plan relating to the recommendations.
22. Similarly, no follow-up on any of the recommendations contained in the
previous report has been made by URNG. The URNG Command has even
questioned their justification in meetings with the Mission.
23. On the other hand, the Government and URNG have continued to cooperate
with the Mission. One case in point during the period under review has
been the Government's prompt action in ensuring that the Mission could
operate in its central offices.
24. The Mission Director has expressed to the President his concern and
revulsion at the taking of five international hostages, including three
United Nations officers, on 28 June 1995; this was one of a series of
unlawful acts aimed at preventing the return of refugees to San Antonio
Tzeja, Ixcan (para. 152). This act constituted a serious breach of the
commitment to cooperate, and specifically of the Government's duty to see
to the safety of members of the United Nations Mission (Commitment X, para.
22 of the Comprehensive Agreement). The Mission, while recognizing the
Government's actions to resettle these returnees, deplores the lack of
initiative and effectiveness on the part of the authorities in dealing with
these unlawful acts and their perpetrators, and the total absence of
information on these events at the various United Nations offices.
Analysis of the verification of rights accorded priority
under the Comprehensive Agreement
25. Between 21 May and 21 August 1995, the Mission received 2,156
complaints, 424 of which were admitted for verification. Compared with the
previous report, this represents a 34 per cent increase in the number
received and a 26 per cent decline in the number admitted.
26. Out of 1,282 cases verified since the Mission was set up, 511, or 39.8
per cent, have been closed. 1/ It was established that there was violation
in 46 per cent of these cases. Slightly over 50 per cent of admitted
complaints are being verified in order to gather the information necessary
to reach a determination. The difficulty in shedding light on the facts
and the persons responsible is a typical problem in dealing with impunity.
1. Right to life
27. During the period in question, 156 complaints were admitted of
violations of the right to life, including deaths as a result of breaches
of legal guarantees and extrajudicial executions (49), attempted
extrajudicial executions (18) and death threats (89). The Mission
reiterates its deep concern at the fact that the largest number of
complaints admitted - 36.8 per cent - are of violations of the right to
life and that the percentage of cases in which the victim actually loses
his life is increasing. Another cause for concern is the fact that for the
vast majority of cases described in previous reports, investigations led by
national bodies have not led to identification and punishment of those
responsible.
28. A number of complaints of brutal murders have been received where, if
the victim was a public figure, the incident serves as a threat to persons
and organizations connected to the victim; also, cases of extreme abuse of
power against alleged offenders or ordinary citizens, where police or
private matters that could be dealt with by lawful means are settled by the
simple expedient of murder, a trend encouraged by the corrupting effect of
impunity and the knowledge that law-enforcement agencies are ineffectual.
29. When the persons involved are, or are associated with, State agents, a
number of recurrent situations have been noted: absence of summonses or
arrest warrants, despite evidence identifying the perpetrators; false
testimonies to throw the investigation off course; cursory internal
investigations exonerating those responsible without reference to the
courts; failure to enforce arrest warrants; persons who flee or avoid
arrest; threatening and harassment of officials of institutions responsible
for the investigation and prosecution of an offence, and of witnesses and
their friends and family members or human rights organizations involved in
the investigation.
30. It should be noted that many of the cases that have come to light over
this period involve elements of the Treasury Guard, and, as indicated in
previous reports, persons with links to, or under the control of, the army.
Others reveal the actions of illicit organizations whose purpose is to
commit crimes or combat crime by criminal means. As long as they are
allowed to continue unpunished, these groups remain a constant threat to
the right to life.
31. This fact is supported by a statement by the Director of the
Department of Forensic Medicine of the Judicial Branch indicating that
every day, an average of 10 to 12 corpses are brought to the morgue, with
point-blank gunshot wounds, frequently in the head, and with signs of their
hands having been bound.
32. During the period under review, complaints of death threats mainly
affected persons connected with human rights organizations, social and
political leaders and public prosecutors. The alleged perpetrators include
clandestine organizations which, while claiming to be fighting against
crime and impunity, have been responsible for threats of this kind, have
thwarted investigations of crimes against human rights, caused the
resignation of public prosecutors in high-profile cases and intimidated
relatives and prospective new victims.
(a) Extrajudicial executions or deaths in violation of legal guarantees
Case 1
33. On 24 June, the body of Manuel Saquic Vasquez, an evangelical pastor
and Coordinator of the Human Rights Committee of the Kakchiquel
Presbyterian Church in Chimaltenango, was found with 33 stab wounds, a slit
throat and signs of having been tortured. The Magistrate and the police
witnessed the removal of the body, which was then buried in an unmarked
grave, despite the fact that it was public knowledge that he had previously
disappeared. Negligence by State institutions in charge of investigating
the case caused a delay in exhuming the body.
34. Official investigations lay the blame on a former military
commissioner, also on trial for the murder of Pascual Serech, the founder
of the Panajabal Human Rights Committee and a member of the same church.
The delay in investigating the case has been compounded by the failure to
enforce the arrest warrant of the accused, who has been frequently seen in
Chimaltenango. According to witnesses, he has gathered his cohorts and
announced to them that Saquic's murder will be followed by that of other
members of the church. Judicial officials and staff of the Public
Prosecutor's Office have reported that they have been watched by and
received threats from the accused and his two sons, who belong to the army.
Saquic's relatives and colleagues have also received threats. The Mission
Director has described the murder as having very grave implications for the
respect for human rights, pointing out that it was not a common crime but
one designed to intimidate organizations and persons who work in defence of
those rights.
Case 2
35. On 13 April, the body of Nery Lopez was found on the road between
Tecum Uman and Ocos, San Marcos. On the previous day, while having a drink
in a bar opposite the Treasury Guard building in Puente Melendez, he had
had an altercation with the chief of that post, who then took him to the
premises of the Treasury Guard. As a result of the internal Treasury Guard
investigation, it was determined that the police chief detained him and
took him into custody; this was the last time he was seen alive.
Nevertheless, up to the time when this case was closed, no one had been
prosecuted, and the person involved was appointed Departmental Chief of the
Treasury Guard in San Marcos.
Case 3
36. On 20 April, in San Jose, Escuintla, two individuals shot and killed
Marvin Martinez Corado. Several witnesses have consistently given the same
description and reported the registration plates of the vehicle of the
attackers, claiming that they are officials from the paratrooper's base in
the area. The deputy chief confirmed that the vehicle belonged to an
official of the base who had passed by the scene of the murder shortly
before the incident. Within five days, the internal investigation
established that the officers were innocent. Since the end of May, the
public prosecutor has relied on the witnesses' statements identifying the
vehicle but has not sought official information on it. The most important
witness has been the target of harassment and has been followed by the same
vehicle used in the crime. A similar arbitrary execution attempt in the
area and the fact that officers from the base have described the victim's
family as criminals suggest that the motive could be the illegal fight
against crime.
(b) Death threats
Case 1
37. Julio Arango Escobar, a public prosecutor in the so-called "Bamaca
case" (para. 61), received several threats over the telephone. On 22 June,
shots were fired at the Public Prosecutor's Office, destroying the window
beneath his office. A few weeks later, he abandoned the case, citing
personal reasons.
Case 2
38. On 28 June, two members of the Voluntary Civil Defence Committee
(CVDC) of Xemal attacked and tried to kill Miguel Godinez Domingo, a member
of the Committee for Peasant Unity in El Chorro, Huehuetenango, with
machetes. When they did not succeed, they accused him of being a guerrilla
and threatened to kill him.
2. Right to integrity and security of person
39. During the period under review, 87 complaints of violations of this
right were admitted, representing 20.5 per cent of the total number of
complaints. Many complaints again concerned cases of torture, the most
serious type of violation of this right. The National Police were
responsible for many cases of torture and cruel, inhuman or degrading
treatment during the investigation or prosecution of ordinary crimes, a
situation that was aggravated by distortion of the facts in official
accounts in order to cover up for the perpetrators. The right to personal
security was violated by threats made by public officials for various
purposes, including extortion.
(a) Torture and other cruel, inhuman or degrading treatment
Case 1
40. On 13 July, Juan Colindres and Antonio Rivera were arrested by the
National Police of Pueblo Nuevo, Escuintla, on a charge of attempted
robbery. They state that the police subjected them to blows, electric
shocks and hooding with a view to extracting confessions. They were taken
to Granja Penal Canada prison, where MINUGUA observed the signs of ill
treatment a week later. The local National Police chief denied the facts,
adding that the prison refused to admit injured persons. The prison
director contradicted the police version, agreeing with the victims that
they had been injured at the time of admission. An investigation by the
Office of Professional Accountability identified the officers allegedly
responsible.
Case 2
41. On 4 July, Daniel Sky Callahan, a United States citizen working at the
invitation of the Commission on Human Rights of Guatemala, was beaten by
three soldiers in the Plaza Central in Guatemala City as he was filming a
peasant demonstration. He was placed under guard until the night of 7 July
in District No. 1 of the capital. Unknown individuals held him for an hour
in a vehicle, threatening him with reprisals if he remained in the country.
Before setting him free, they beat him, especially in the genitals. The
doctor stated that he had also been hit in the abdomen, the lumbar region
and the neck by a person wearing boots. The victim left the country and
had to undergo surgery.
Case 3
42. On 18 July, Juan Suchite Perez was arrested and severely beaten by
officers of the National Police of Gualan, Zacapa, who were joined by a
civilian. According to the victim, an attempt was made to abuse him
sexually in the police station, and relatives who tried to come to his
assistance were held at gunpoint. The police attributed the marks on his
neck to attempted suicide, an unlikely story under the conditions obtaining
in the place of detention. No arrest warrant has been issued to date in
the legal investigation.
Case 4
43. On 10 July, in Santa Elena, Peten, three National Police officers and
two civilians entered the house of Edgar Reina without an arrest warrant,
charging him with robbery. Witnesses state that he was beaten by his
captors on the way to the Santa Elena police station. The medical
certificate requested by the judge was not furnished on the pretext that
"his release had been ordered on the day following his arrest". The police
defended their behaviour on the grounds that the person concerned had
struck the officers and attempted to escape, "falling on the ground, which
accounts for his injuries".
(b) Other threats to the right to integrity and security of person
Case 1
44. On 15 May, in San Cristobal, Totonicapan, members of the Guatemalan
Widows' Coordinating Committee (CONAVIGUA), returning from a demonstration
in vans, were intercepted by officers of the National Police. Forcing them
to alight at gunpoint, they accused them of being guerrilla fighters and
threatened them with arrest. After holding them for 45 minutes, they
demanded money in return for not arresting them and seizing the vehicles.
There are reports of similar cases involving police officers of sub-station
Cuatro Caminos of the National Police in Totonicapan.
Case 2
45. On 31 May, in Poptun, Peten, officials of the General Department of
Forestry and the Treasury Guard mounted an operation to stop illegal wood
trafficking. The driver of a lorry carrying a load of wood, after
identifying himself as a Treasury Guard officer, drew his weapon to prevent
inspection. When the officials reported the incident to the Inspector of
the Treasury Guard, he threatened to arrest them if they continued with the
operations.
46. The Mission received new complaints of threats from elements connected
with the army against judicial officials, persons branded as subversives or
persons who do not patrol in the Voluntary Civil Defence Committees
(CVDCs).
47. There have also been further complaints of threats by elements of the
Unidad Revolucionaria Nacional Guatemalteca (URNG) against agricultural
landowners in order to obtain payment of the so-called "war tax" (paras.
145 ff.).
3. Right to individual liberty
48. There were 43 complaints of violations of this right, representing
10.1 per cent of the total number of complaints. The large number of
arbitrary detentions, in most cases practised ostensibly in the course of
law enforcement and in some cases involving unnecessary and excessive
violence, is again significant. They are carried out by National Police
officers, sometimes accompanied by civilians, without a warrant or without
the victims being caught in flagrante delicto. Police reports may be
altered to make it appear that the victims were caught in flagrante
delicto, that there were errors in the report or even that the arrest
itself never took place. There have been further reports of arrests by
military commissioners, CVDC members and deputy mayors, none of whom has
legal authority to make such arrests.
(a) Arbitrary or illegal detention
Case 1
49. In the morning of 27 June 1995, in Chelajop, Totonicapan, members of
the military arrested Luis Alvarado Cajchun, Agustin Vazquez Cop, Antonio
Castro Tax, Pedro Puajpacaja and Santos Castro as they were gathering wood
for their own use. A soldier forced Alvarado to lie down on the ground and
was beating him on the back with the barrel of his rifle when the gun went
off. The victim had to be hospitalized. After making a statement to the
justice of the peace, the persons in question remained in detention for two
days. The military side states that the victims were felling trees and
violently resisted arrest, but it was found on investigation that no such
offence had been committed and they had been arbitrarily detained and ill-
treated. The Mission is following the legal proceedings, which are
seriously flawed.
Case 2
50. Diego Tum Gonzalez, of the village of Buena Vista, Quiche, was
arrested on 27 April by the military commissioner, the deputy mayor, the
second in command and two CVDC members with the aim of making him pay a
fine for not patrolling in November and December 1994. The victim remained
in detention for 24 hours in the prison cell at the mayor's office.
Leaving aside the fact that they have no legal authority to make arrests,
the captors sought to justify their behaviour by alleging that the
authorities had been insulted. They admitted, however, that their action
had been influenced by the unpaid fine.
Case 3
51. On 4 July, in Huehuetenango, a teacher was arrested at the bus
terminal by two plain-clothes National Police officers, who took him to the
police station. Interrogating him while he was semi-naked, they charged him
with robbery and insulted him for being a teacher. Although a judicial
order of release was transmitted to the warden on 6 July, the latter, under
the influence of alcohol, ordered that he should remain in detention for
another night. The victim was finally released on 7 July, after a relative
had been forced to bribe the warden.
(b) Enforced disappearances
52. The number of complaints during the period concerning alleged enforced
disappearances declined to two cases, which are currently being
investigated.
4. Right to due legal process
53. During the period in question, 60 complaints of violations of due
process were admitted, accounting for 15.1 per cent of the total number of
complaints. With regard to earlier cases, there has been no significant
progress in the judicial investigations or in sentencing. The Mission
continues to be very seriously concerned about this situation of virtual
denial of justice, especially regarding the rights to life and integrity of
person.
54. Impunity has been facilitated, in the case of both new and earlier
complaints, by the failure to undertake inquiries that could have been made
in a timely manner. In the case of a number of serious offences, including
some that led to a pubic outcry or were perpetrated in areas with a high
crime rate, the Public Prosecutor's Office has failed to initiate an
investigation or to appoint a prosecutor. It has been noted on a number of
occasions that the competent bodies have failed to take statements from
witnesses, that arrest warrants have not been issued in spite of evidence
or else have not been served, and that persons involved in very serious
offences have been allowed to escape or have been improperly released on
bail.
55. According to the verification process, the fact that little or no
progress has been made in the investigation of the majority of cases is
basically due to the lack of will or ability on the part of the Public
Prosecutor's Office to conduct criminal proceedings and the lack of
forcefulness of its highest authority in implementing the necessary
corrective measures. This is especially true where persons belonging to or
associated with the Army are involved in cases for which the investigation
has been brought to a halt under pressure. The public prosecutors have
complained about this military interference in an area of State
jurisdiction. In the face of such pressure and even serious threats, the
authorities have failed to take timely action in support of the public
prosecutors.
Case 1
56. With regard to the extrajudicial execution of Apolo Ariosto Carranza
Vallar, following verification of the existence of a judicial order to bury
the body without investigating the case (para. 39 of the second report), a
witness and former police collaborator provided new information concerning
the identity of the culprits and the circumstances of the crime. Yet the
prosecutor of the case was appointed almost two months after the victim was
exhumed.
Case 2
57. On 13 July, the judicial reconstruction and deposition of oral
evidence took place in the case of Juan Chanay Pablo, a member of the
Committee for Peasant Unity of Colotenango killed by CVDC members during a
peasant demonstration. MINUGUA noted the unequal treatment given by the
judge to the witnesses from the two sides. The 15 witnesses for the
defence had three days to give evidence, while the 30 witnesses for the
prosecution had only one day and were seriously hampered by the lack of an
interpreter.
Case 3
58. There has been practically no investigation of the threats made in
April 1995 against Maria Miranda Berdugo, local leader of CONAVIGUA, and
Alfredo Temaj Perezen, a member of another human rights organization in San
Isidro, San Marcos. The Public Prosecutor's Office merely sent an official
communication to military zone 18, asking whether the accused were military
commissioners and receiving no reply. Initially, the prosecutor
responsible for the case said that if they were commissioners "they cannot
be summoned because they enjoy special privileges". The Mission's view
that a threat is not an "essentially military" offence and does not fall
exclusively within that military jurisdiction was subsequently shared by
the prosecutor, who continued his work, albeit with some delay, on that
premise.
Case 4
59. On 25 April, in the Santa Rosa market, Santa Rosa, National Police
officers of Chiquimulilla illegally and arbitrarily arrested Lucas Luch
Pulul, a minor of the Quiche ethnic group, without informing him of the
reason for his arrest. He was charged before the judge with belonging to a
gang of thieves and taken to Santa Rosa prison. As at 6 July, he had not
been assisted by a defence counsel or an interpreter. His complaint of
having been beaten in the prison compound has not been investigated either.
At the time of writing of this report, the legal file had been lost and the
minor was still illegally detained.
Case 5
60. In July, Juan Mendoza of the Kawabil Peasant Council was detained for
15 days in Huehuetenango prison, charged by the chief of the Chejoj CVDCs
with usurpation of land and with "using insulting language". He could not
make a statement or answer the charges before the judge because, according
to himself, he speaks "only Mam and not Spanish" and he had no interpreter.
Cases cited in previous reports under this commitment
61. In the trial for the murder of URNG commander Efrain Bamaca (paras.
66-67 of the first report and para. 66 of the second), on 3 August the
Court of Appeal established as a Military Appeal Court heard the complaint
filed by the Public Prosecutor's Office and overruled the dismissal
decision by the Military Court of First Instance in favour of 15 soldiers
allegedly implicated. As the military judges sitting in the Court of
Appeal refused to sign the decision, the Supreme Court had to order their
replacement by alternate judges. Digging and exhumation in the place
where, according to reports communicated to the Department of State of the
United States, Bamaca's body was allegedly interred were suspended on three
occasions, and the Public Prosecutor's Office has so far been unable to
complete the exhumation. The soldiers' defence counsel exerted pressure
and employed delaying tactics to prevent it, even citing orders by the
President of the Republic.
62. The prosecutor Julio Arango Escobar, who took over the case on 11 May
1995, complained of being subjected to pressure, death threats and
intimidation (para. 37). This prompted a decision by the Counsel for Human
Rights requiring the competent bodies to assist the prosecutor in his work
through the requisite cooperation and guarantees. Finally, on 1 August
1995 he resigned, repeating to the Mission that he was not receiving proper
support from his own institution. During a period of nine months, the case
has had three prosecutors, and virtually no progress has been made in the
investigation.
63. The investigation of the execution of Myrna Mack (paras. 68-69 of the
first report and para. 64 of the second) is still at a standstill because
the Public Prosecutor's Office has utterly failed to fulfil its
obligations. Since December 1994 it has neither assigned a prosecutor to
the case nor instituted criminal proceedings, despite the lack of
impediments, so that the right to justice has been denied. The obstacles
to the appointment of a prosecutor reflect the fear of officials in the
Public Prosecutor's Office and of lawyers to take part in a case involving
the military.
64. In the trial concerning the murder of Jorge Carpio Nicolle (para. 70
of the first report and para. 65 of the second), the prosecutor confirmed
to the Congress on 29 May 1995 the existence and loss of the report from
the Quiche military zone concerning an internal investigation of the case,
which had been submitted to the military staff in August 1993. At the time
of the crime, the judge did not issue an admonition to the former assistant
director of the National Police, who should have made a statement as an
expert witness but who was sent to the United States for a course of
studies just as the judge was about to start taking evidence. The judicial
decision to amend the arrest warrant returned the investigation to square
one, since it insisted on involving only common criminals, although the
records contain new evidence that discredits the initial hypothesis. Both
the prosecutor and relatives claim to have sufficient evidence to show that
the fourfold crime, for which the modus operandi was an ambush and whose
chief perpetrators were allegedly members of a CVDC, was politically
motivated, rather than the work of common criminals as recently maintained
by the President of the Republic himself. This is another case in which
the continuous harassment of a prosecutor has not met with a firm response
on the part of the highest authorities of the Public Prosecutor's Office.
65. The trial concerning the murder of three workers on the San Juan del
Horizonte farm (La Exacta) in Quetzaltenango (para. 67 of the second
report) has made no progress. Four months ago, the Attorney General
undertook to appoint a prosecutor, a court officer and an official with
special responsibility for the case, but no action has been taken. The
Coatepeque Court has also been unjustifiably dilatory, for example
neglecting to reply for three months to requests to authorize the
interrogation of the National Police officers involved in the eviction.
66. With regard to the investigation into the murder of the student Mario
Alioto Lopez Sanchez (para. 74 of the first report), both the Public
Prosecutor's Office and the judiciary have remained totally passive.
Although little time is left to draw up formal charges against National
Police officers, the metropolitan district prosecutor has taken no great
interest in the investigation of his assistant prosecutor; the Court of
Second Instance, for its part, has employed delaying tactics on several
occasions. The investigation by the Office of Professional Accountability
ended last March without an analysis of the plan of action used by the
National Police at the student demonstration or of the responsibility of,
inter alia, Carlos V. Escobar Fernandez, second in command of the Fifth
Corps of the National Police, who was subsequently arrested by court order
at the request of San Carlos University and the Public Prosecutor's Office,
which shows the reluctance of the National Police to investigate the case.
5. Political rights
67. The Mission received a small number of complaints concerning
specifically political rights, a fact that should be assessed in the light
of a political environment with little tradition of participation and a
context fraught with violence. The Mission is particularly concerned by
acts of violence against political candidates and figures registered since
the announcement of elections: the murders of the mayor of Moyuta,
Jutiapa, who was running for a congressional seat, of candidates for mayor
of La Democracia, Huehuetenango, and San Lucas Toliman, Solola, of two
activists campaigning in San Jeronimo, Baja Verapaz, and of a senior
political party leader in Peten; the attempted kidnapping of a candidate
for mayor of Nuevo Palmar, Quetzaltenango; physical assaults on a candidate
for mayor of Momostenango, Totonicapan; an attack on the house of Efrain
Rios Montt and another on the residence of the mayor of Chiquimula.
68. With regard to the electoral authority, the Mission has taken stock of
the good public image of the Supreme Electoral Tribunal in terms of both
its financing and the professionalism of its magistrates and officials. In
addition, it has verified the smooth functioning of its delegations and
sub-delegations. However, an institutional difficulty that seriously
discourages electoral participation is the fact that the Tribunal offices
and branch offices are confined by law to municipal capitals, so that
persons living in remote areas have difficulty in registering.
69. With regard to the right to enrolment in the citizens' register,
almost one third of the voting-age population are still unregistered,
mainly owing to the lack of basic documentation. This deficiency is
particularly prevalent among women in rural areas and the returned and
displaced population. In that connection, adoption of the bill on the
personal documentation of the country's displaced population is still
pending (para. 69 of the second report).
70. With regard to the November elections, the electoral roll closed on 12
August, remaining open for amendment and purging until 12 October.
According to provisional figures, the roll contains over 3,600,000
individuals, representing an increase of more than 100,000 persons over the
roll under which the 1994 referendum was held (3,480,196 registered
voters). These figures indicate that about 70 per cent of the population
of voting age, i.e., over 18 years of age, is registered to vote.
71. There are significant differences in the electoral roll between
registration rates for men and women and between the country's departments
and municipalities. These differences reflect both historical
circumstances of political demobilization and lack of basic documentation
and new circumstances of greater participation. The proportion of women on
the roll, at about 40 per cent, is less than their proportion in the
country's overall population, which is about 52 per cent. The rates of
female voter registration are higher than the national average in the
departments of Guatemala, Chimaltenango, Retalhuleu, Sacatepequez and
Quetzaltenango, with Guatemala heading the list at 48 per cent. On the
other hand, female enrolment is lower than the national average in Peten,
Chiquimula, Jalapa, Solola, San Marcos, Huehuetenango, Quiche, Alta Verapaz
and Totonicapan, the proportion in the last-mentioned department being 22
per cent.
72. The proportion of registered voters is above the national average of
70 per cent in the departments of Guatemala, Chiquimula, Zacatepequez,
Santa Rosa, Quezaltenango, Retalhuleu, Zacapa, Jutiapa and El Progreso; in
the last three departments mentioned, the proportion is about 90 per cent
of the population over 18 years of age. On the other hand, the enrolment
rate is less than the national average in Izabal, Huehuetenango, Solola,
Escuintla, Peten, Totonicapan, Quiche and Alta Verapaz; in the last three
departments mentioned, the proportion is about 50 per cent of the
population over 18 years of age.
73. With regard to the right to hold public office, the Mission verified
that registration of citizens' electoral committees, the deadline for which
expired on 12 August, proceeded normally. According to data provided by
the Political Organizations Division of the Supreme Electoral Tribunal, 144
committees have been registered. In addition, the Mission closely followed
the process of registration of candidacies of the different political
parties, the deadline for which expired on 12 September.
74. With regard to the right to participate in political activities, the
Mission is monitoring the election campaign, in particular the State's duty
to guarantee the full exercise of that right by all citizens and the duty
of URNG not to obstruct its effective enjoyment.
6. Freedom of expression
75. During the period in question, three complaints regarding violations
of this right were received, bringing the figure above that indicated in
the preceding report. One complaint, which is in the process of
verification, concerns the exercise of the profession of journalism; the
others involve the freedom of expression of individuals working to promote
human rights.
Case 1
76. On 16 July, during a meeting between MINUGUA and the community of
Amatxel, Quiche, a member of the Defensoria Maya (Mayan Legal Defence
Office) had begun to read out various reports concerning local CVDC
meetings. The head and several members of the Committee attempted to
prevent this, claiming that he had no right to write about or publicize
reports on the situation in the municipality. MINUGUA observers noted that
the aggressors seized the Mayan Legal Defence Office representative's
documents and destroyed them.
7. Freedom of movement
77. The Mission has verified new complaints that URNG members restricted
freedom of movement by setting up roadblocks, some of them on major roads,
thereby impeding free movement and causing unwarranted damage to civilian
property.
Case 1
78. On the morning of 25 June, on La Trinidad bridge along the coastal
highway leading to El Salvador, Santa Rosa, five heavily armed persons in
olive green uniforms blocked the road with lorries, shooting at the tyres.
They identified themselves as members of URNG and stated that they were
staging a public protest against the Government. Police officers reopened
the road to traffic four hours later.
79. In the process of verifying other violations committed by military
commissioners and members of CVDC, violations of the freedom of movement
committed with impunity were also revealed in connection with the return of
refugees.
8. Freedom of association
80. Although no complaints were received about violations directly linked
to trade union activities during the period in question, complaints
continued to be received of violations of the right to swift and effective
justice, involving leaders or workers who were subjected to threats,
dismissed or subjected to reprisals because they organized themselves into
trade unions or asserted their interests as workers. Reports also were
received of situations involving the right to freedom of association of
non-governmental organizations (para. 132), and the Mission is in the
process of verifying administrative obstacles that such organizations face
when seeking legal status.
81. Despite the fact that Guatemalan legislation protects organized
workers who have filed suit and compels employers by judicial order to
reinstate those who have been dismissed within 24 hours, the Mission
verified a number of cases involving dismissed agricultural workers who had
not been reinstated even though six months had passed since the labour
tribunal had issued the relevant order.
Case 1
82. In October 1994, three trade union leaders from the El Arco farm in
Suchitepequez were dismissed after forming a committee for the purpose of
improving their working conditions. During the verification process, it
was learned that the labour judge had taken two months to order the
workers' reinstatement and another four months to notify their employer.
Even so, the workers still have not been reinstated. The Public
Prosecutor's Office and the Mazatenango police have refused to act on a
complaint filed by one of the workers that he had been subjected to threats
and violently evicted.
Commitment II. Strengthening institutions for the protection of human
rights
Judiciary and Public Prosecutor's Office
83. Verification activities during the period in question indicate that
judges and prosecutors have again been subjected to threats, intimidation
and even attacks on their person. As a general rule, the Government has
not taken steps to protect such officials and, what is even more serious,
has neither investigated nor imposed any punishment in the many cases
involving acts perpetrated, assisted or tolerated by State agents.
84. Previous reports by MINUGUA have repeatedly underscored how severely
the work of judges and prosecutors is affected by the intimidation,
pressure and threats to which they are subjected and by the fact that they
receive scant assistance from the police and other public officials.
Although aware of the situation, the Government has neither devised nor
implemented a policy to combat the phenomenon, nor has it instituted in a
timely manner preventive and protective measures that are required. The
Government's failure to take action has intensified the feeling among
judges and prosecutors that their personal safety is in jeopardy and that
they have no support in the discharge of their duties. The cases of
prosecutors Julio Arango (para. 40) and Abraham Mendez (para. 43 of the
first report and para. 96 of this report) illustrate this situation.
Support for the Counsel for Human Rights
85. The Mission examined the Counsel's publicly expressed claims that the
Government, by failing to strengthen this institution, was in violation of
the Comprehensive Agreement. MINUGUA also considered the President's
response, which acknowledged the validity of the Counsel's claims and
stated that they provided grounds for the State to revise its decisions;
the President also said that he had reminded his ministers that they must
obey the resolutions of the Counsel and that they were required by the
Constitution to cooperate with him. Verification revealed that the
President's instructions did not result in an improvement in the attitude
of State institutions during the period under review.
86. Although it recognizes that it is the responsibility of the Congress
to approve the budget, the Mission is not aware of any action by the
Government to improve the technical and material conditions available to
the Counsel in carrying out his tasks of investigation, monitoring and
follow-up to ensure the enjoyment of human rights in Guatemala, as called
for by the Comprehensive Agreement.
Commitment III. Commitment against impunity
87. Impunity, which the Mission has called the most serious obstacle to
the enjoyment of human rights in Guatemala, is a factor whose existence has
increasingly become a source of profound concern and a spur to action in
Guatemalan society. The Congress demonstrated a particular interest in the
matter during its meeting with MINUGUA to discuss its second report, and a
number of legislative initiatives to deal with the phenomenon were
envisaged. The rampant nature of impunity has heightened public awareness
at all levels and has led to the establishment of organizations such as
"Madres Angustiadas" (Anguished Mothers), which are working to mobilize
society and exert pressure on the competent institutions to end impunity.
On a very positive note, these and other sectors, including the
communications media, the churches and other institutions, have been
expressing concern about this phenomenon, demonstrating a growing awareness
of how serious a problem impunity has become, and of the need to combat it.
88. This section analyses the components of impunity, with particular
emphasis on the institutions responsible for preventing, investigating and
combating it.
(a)The defective functioning of the Public Prosecutor's Office, the
judiciary and the security forces responsible for preventing and punishing
crime
89. The Mission has stated that correcting the lack of coordination among
the Public Prosecutor's Office, the judiciary and the National Police
should be a key component of the required comprehensive policy against
impunity (para. 203 of the second report). In the absence of such a
policy, this lack of coordination persists and seems to be insoluble. Even
worse, it is perpetuated by the defensive stance of the institutions
concerned, all of which attempt to justify their shortcomings by blaming
one another: prosecutors assert that they are unable to conduct
investigations because they receive no help from the police; the National
Police claim that they lack the legal authority and logistical means to
act; and judges assert that they do not have enough evidence to issue
arrest warrants. The peculiar characteristics of the phenomenon cannot be
explained solely by such arguments; rather, they can be attributed to the
fact that the supreme authorities of the State have no decisive policy for
overcoming the often observed unwillingness to investigate and administer
punishment, and to the lack of coordination among the bodies having the
legal duty to take such action.
Public Prosecutor's Office
90. In general, verification of the performance of the Public Prosecutor's
Office has revealed a very inadequate understanding of the basic
information needed to devise a strategic policy for investigating crime, a
lack of knowledge as to how to organize this effort and a poor relationship
with the National Police. These factors are among the structural causes of
the Office's weakness in the campaign against impunity.
91. The Mission also has observed that, in most of the cases considered,
investigations are paralysed primarily by the lack of a clear institutional
willingness to prosecute crimes involving members of the army, army-related
personnel or agents of the security forces. One example is the attempted
murder, on 28 June, of a member of the Comite de Unidada Campesina
(Committee for Peasant Unity) attributed to two members of a patrol in the
municipality of Xemal; two months after the crime an investigation still
has not been launched because the responsible prosecutor claims he does not
have the time.
92. The Mission noted many instances in which officials of the Public
Prosecutor's Office were unwilling to follow up on complaints. Of
particular concern are the many cases in which complainants are told that
"they personally would have to bear the burden of the investigation if
criminal proceedings were initiated", an allusion to the fact that they not
only would have to pay the costs of the Office's investigation, but also
would be putting their lives in danger.
93. The strong public statements by the Attorney General, which many
sources interpreted as forecasting the adoption of a decisive policy for
winning back public trust in the institution, have not been translated into
concrete action. For example, no meaningful or exemplary measures have been
adopted following serious mistakes by prosecutors which might result in
there being no judicial investigations of very serious and sensitive cases
(second report, para. 66). Even in cases in which the crime victims were
officials of the Public Prosecutor's Office, no particular interest was
shown in investigating the facts. An excellent example is the case of
Abraham Mendez, a prosecutor who was interrogated twice in late May in the
Attorney General's office by persons identified as members of the
President's staff. Efforts to intimidate him have continued, including a
night raid at one of the locations where he works, since he has no office
of his own in the Public Prosecutor's Office. Thus far, the Office has
failed to investigate these acts or the attempt on his life in November
1994.
Judiciary
94. The previous report stated that most members of the judiciary
discharge their responsibilities with independence, judicial integrity and
determination. Nevertheless, shortcomings of the judiciary - such as delays
in issuing arrest warrants or overly broad criteria for release on bail
with security, particularly in cases involving serious crimes (paras. 53-
60) - also have been shown to encourage impunity.
95. The Mission views with even greater concern cases involving judges who
obviously take decisions which encourage impunity. This was the case of a
circuit judge posted at Solola in June who in just a few weeks dismissed
more than a dozen cases, some involving agents of the State who had
committed serious violations of human rights. The Mission has not yet
learned the conclusions of the special committee of the Supreme Court of
Justice established to study this matter.
96. Under the Constitution, jurisdiction is vested solely in judges, who
preserve their independence both within and outside the judiciary and are
answerable only to the law. MINUGUA is deeply concerned at attempts
originating both outside the judiciary and in internal procedures
implemented by the judiciary - to interfere with the judiciary's
independence, since such attempts have an impact on those constitutional
prerogatives and undermine the campaign against impunity.
97. This independence is jeopardized from the outside by threats against
judges, a situation which the Supreme Court of Justice has condemned, and
by the fact that military judges of first instance are based in military
zones and thus are subject to the influence of or pressure from individuals
having a personal or institutional interest in the cases before them.
98. Internally, the independence of judges also is restricted by problems
which can undermine their role in the campaign against impunity, such as
the non-existence of the principle of continuity. This may be ascribed to
the fact that the Supreme Court may reassign judges at any time and for any
reason, which can lead to manoeuvring in an attempt to remove a judge from
a particular case and can affect the routine work of the courts. For
example, during a period of only three months, five judges presided over
the second criminal court of first instance of Cuilapa, a situation which
the last judge used to excuse the paralysis of the judicial investigation,
adding that the only official knowledgeable about the cases had been
transferred and had not been replaced.
99. The judiciary's independence is also undermined by the imposition of
disciplinary measures, which may even include removal, by the Supreme Court
acting on the basis of reports of the Office of Court Supervision. There
are no rules governing this procedure and it has resulted in violations of
due process, admitted by the Constitutional Court, which ordered the
reinstatement of a number of judges who had been removed.
National Police
100. The National Police Command, through its Office of Professional
Accountability, continued to pursue internal investigations of police
officers involved in violations of human rights, both on its own initiative
and in response to information from MINUGUA. Although it acknowledges
their value, the Mission must point out that while such efforts are by
their very nature effective in resolving specific cases, they are no
substitute for the comprehensive policy that is required, nor can they
compensate for the institutional deficiencies of the police in the campaign
against impunity.
101. The institutional deficiencies with the greatest impact on police
performance are: (a) insufficient personnel; (b) inadequate staff training
and a shortage of the equipment needed for their work; (c) the consequent
recourse to the military infrastructure in order to discharge their duties;
(d) illegal external pressures which limit police investigations; and (e)
the lack of effective coordination with the Public Prosecutor's Office with
a view to the effective pursuit of investigations, including confusion
regarding the role of the National Police under the new criminal procedure
system.
102. In addition to the reported corruption, resources are scarce and
police presence is minimal, all of which, given the high incidence of
crime, make it impossible to guarantee the safety of the population. The
police/population ratio in Guatemala is 1:2,200, whereas international
standards set the target at approximately 1:500. There are roughly 2,000
agents in Guatemala City, plus additional manpower from other special
forces, whereas in the departmental capitals there are not enough police
and there is a shortage of transportation, liaison and communication
facilities.
103. The ability of the National Police to track down criminals is
severely limited. By way of illustration, the Mission has noted that no
more than 5 per cent of homicide cases have been solved, a blatantly low
figure compared to other countries. Although the number of persons
reported to be in custody is fairly high, only a small percentage are being
held for serious offences, which shows that there is a clear tendency to
arrest people for misdemeanours while perpetrators of serious crimes or
violations of human rights go unpunished (para. 36).
(b)The existence of illicit associations linked with crime and with
financial or other interests which may enjoy the support, the complicity or
the tolerance of State agents
104. Verification has shown that during the period in question illegal
groups of various types continued their operations and that they not only
are among those enjoying impunity, but also fall within the ambit of
commitment IV of the Comprehensive Agreement. The characteristics of their
modus operandi were observed in cases involving violations of the right to
life, some of which are referred to in this report (paras. 36-37). Some of
these groups, which were formed for the purpose of committing murder and
other crimes, have operated with impunity for many years, facilitating and
covering up crimes and participating in so-called "social cleansing"
operations, in which criminal acts replace legal action on the part of
security forces.
105. In many of these cases, the participation or collusion of army or
police officers is obvious, and their actions are not always politically
motivated. The fact that persons who are subjected to threats do not dare
to lodge complaints with or testify before State institutions and the fact
that judges and prosecutors are afraid to investigate criminal groups are
indicative of a climate of fear which guarantees the impunity of such
groups, making it very difficult to bring them before the courts, prove
their culpability and sentence them.
106. The activities of illegal security forces and clandestine structures
also have affected the functioning of the administration of justice system,
given the threats and climate of intimidation surrounding not only judges
and prosecutors, but also the lawyers of victims of human rights abuses and
their families, and defence lawyers.
107. Particularly troubling are the threats against and murder of citizens
who help to elucidate crimes and violations by testifying or providing
information to the police, prosecutors or judges. One such case involves
the murder of Sidney Geovany Lopez, an official in the Public Prosecutor's
Office, in which one of the three witnesses who testified was murdered and
the other two received death threats. Public statements by prosecutors
indicate that 90 per cent of judicial proceedings involving acts which have
an impact on society are obstructed because eyewitnesses refuse to come
forward and provide information.
Case 1
108. The Mission received a number of complaints about murders and death
threats attributed to a band of criminals operating in the San Miguel
Chicaj region of Baja Verapaz. The complaints all state that this band,
which had been operating with impunity for years, is headed by a military
commissioner and that its members include army officers. Fearing
reprisals, a number of families which have received threats have abandoned
their municipality and refuse to file formal complaints with the Public
Prosecutor's Office or the National Police.
Case 2
109. On 14 October 1994 Hector Rolando Tot was kidnapped at the Coban bus
terminal in Alta Verapaz by individuals driving a Toyota Hilux with
polarized windows; his whereabouts are still unknown. Verification showed
that he had been the victim of a "social cleansing" operation involving
State agents, according to information provided to MINUGUA. The victim was
known to be a member of a band of thieves operating along the Coban-Chisec
road. Neither the National Police nor the Public Prosecutor's Office
initiated a serious investigation, and one of these institutions stated
that it feared reprisals if it did take such action.
(c)The autonomy enjoyed by the army in its counter-insurgency and anti-
subversive activities, the procedures it uses in this sphere and the broad
interpretation it gives to those concepts
110. Verification has made it clear that the origin of this component of
impunity does not lie only in aspects directly or indirectly related to
counterinsurgency and anti-subversive activities; its source is much
broader and extends to the protection the army gives to certain of its
members implicated in cases of corruption or common crime. For example,
despite the seriousness of the accusations against a high-ranking officer
(paras. 39 et seq. of the second report), not only did the army take a
passive attitude towards the internal investigations conducted and in
support of justice, but it arranged for the officer to be transferred to
command another military zone, perhaps of even greater prestige.
111. The complaints submitted to the Mission by some investigators and
judges, in conjunction with much other information received about the
existence of intimidation and threats (paras. 37 and 93), as well as the
army's failure to comply with legal requirements (para. 58) are also
elements pertaining to impunity.
112. Although during the period under review the army has limited its
military actions strictly to the context of the armed conflict, an attitude
which attenuates the effect of this component of impunity, in some areas
they continue to allege that the human rights non-governmental
organizations, the Counsel for Human Rights and MINUGUA are attempting to
dissolve the CVDCs, and allude to the fact that the Mission's mandate is
temporary, while the army is permanent, which promotes the impunity with
which the civilian patrols act.
113. The Mission believes that participation of members of the army in the
judging of crimes that are not specifically military hinders due process
inasmuch as it is the State's duty to investigate and punish. During the
period under review, the cases in which members of the armed forces were
found to be involved in judicial proceedings show that the Mission's
recommendations with respect to the necessary reforms of the current system
of military justice, in particular article 546 of the Code of Criminal
Procedure, are especially urgent. Establishing a special court to deal with
crimes that are not specifically military constitutes a privilege
incompatible with the rule of law, since all citizens accused of common
crimes should be tried before the same courts.
(d)Control exerted over rural communities by military commissioners and
Voluntary Civil Defence Committees (CVDCs)
114. In the second report, the Mission recommended that the Government
should not allow military commissioners and members of the Voluntary Civil
Defence Committees to continue to exercise functions which are essential
and indelegable duties of the State, and that the army should prevent,
investigate and correct human rights abuses and violations committed by
them. In this context, it is noteworthy that the President of the
Republic, on Army Day, announced that he would order the dissolution of the
military commissioners, a process that would be completed on 15 September
1995. The Mission considers this a positive step, but its effects on the
situation of human rights in Guatemala will also depend on what safeguards
are adopted regarding the future conduct of the many military commissioners
who have repeatedly violated those rights. The Mission will continue to
verify attentively the State's fulfilment of its duty to guarantee human
rights, in relation to the future behaviour of this sector.
115. Although the precise scope of the presidential announcement is not
yet known, the announcement is interpreted as meaning that the
commissioners will be demobilized. The definitive elimination of this
section of the act establishing the army will require the Congress to adopt
an amendment, and a Government initiative to that effect is already under
way. In any case, the Mission believes an information campaign is needed,
supported by the army and directed at the communities, to explain what the
new situation will be once the dissolution of the military commissioners is
complete.
116. With regard to the investigation and rectification of abuses on the
part of the CVDCs, no significant progress has been made. New complaints
have been received against them, including reports of harassment of
returnee villages and intimidation of settlers to influence their vote. Of
particular concern is the impunity which continues to be found as seen in
the several cases reported below.
Case 1
117. The arrest warrants against Ruben Cruz Lopez, head of the CVDC at
Txel, Quiche, five patrol members and a former deputy mayor, which were
issued on 8 August 1994 and reissued on 4 May 1995, have yet to be
executed. The men are accused of murdering three people and burying them
illegally, and there is convincing evidence of their guilt. Neighbours in
Txel affirm that Cruz and his accomplices are at large in the community
without fear of detention, and that he continues to head the CVDC and
attends regular meetings at the military base. He also is accusing members
of human rights organizations of being guerrillas and threatening members
of the murder victims' families and anyone else who might dare to report or
testify against them.
118. While one reason the abuses, human rights violations or crimes
allegedly committed by military commissioners and members of CVDCs, whether
for political or general reasons, continue is that the people are afraid to
say anything, the main reason they continue is that, in much of Guatemala
the institutions responsible for maintaining public order and administering
justice either do not exist or are very weak.
(e)The proliferation of and lack of control over the possession of
firearms by private individuals
119. This element is examined in the section dealing with Commitment IV of
the Comprehensive Agreement (paras. 124-125).
Characterization of enforced disappearance and extrajudicial execution as
crimes
120. The amended Criminal Code, which characterizes extrajudicial
execution and enforced disappearance as especially serious crimes and
establishes penalties for such crimes, entered into force on 14 July 1995.
The Mission believes that the publication of that decree contributes to the
fulfilment of the Government's commitment.
121. Nevertheless, and without prejudice to its respect for the
prerogatives of the Legislative branch, the Mission considers that
extending the death penalty as the decree does, to cover categories of
crimes not previously included in the Penal Code, is contrary to the spirit
and the letter of the American Convention on Human Rights.
122. Moreover, the Mission still has no evidence that the Government has
taken measures to characterize enforced disappearance and summary or
extralegal execution as crimes against humanity.
Commitment IV. Commitment that there are no illegal security forces and
clandestine machinery: regulation of the bearing of arms
123. The commitment regarding illegal security forces and clandestine
machinery, as well as the purification and professionalization of the
security forces, is analysed in the section relating to Commitment III of
the Comprehensive Agreement (paras. 104 ff.).
Possession, bearing and use of firearms
124. Whereas the previous report recognized that some positive, though
inadequate, measures had been taken in this area (para. 109 of the second
report), no new measures have been taken during the period under review.
The number of individuals bearing firearms has risen sharply, facilitated
by the fact that commercial establishments sell firearms cheaply and take
care of the licensing formalities, issuing licences along with the weapons,
since there are no requirements that cannot easily be met. Furthermore,
since there are no restrictions, large quantities of weapons and ammunition
enter the country any type of weapon or ammunition can be obtained on the
black market. Ninety per cent of all weapons seized by the police are
illegal, and eight out of ten violent crimes are committed with firearms.
125. People should require special authorization in order to bear a weapon
and the State should grant such authorization only after verifying that a
real need exists. The only effective way to control and regulate the
problems mentioned is to draw up strict legislation prohibiting anyone from
bearing a weapon without authorization, and prohibiting anyone from
brandishing a firearm, whether or not they have such authorization. An
effective system of control should also be implemented to regulate the
circulation of weapons in the streets. Until such time as the purchase,
possession, bearing and use of firearms is strictly controlled, the
incidence of violence in the country is unlikely to decrease.
Commitment V. Guarantees regarding freedom of association and freedom of
movement
126. During the period covered by this report, the Mission has continued
to note some progress inasmuch as people are now free to choose whether or
not to belong to the CVDCs. In this regard, it should be noted that the
CVDC of Setul, town of Sayaxche, Peten, was dissolved at the initiative of
the military commissioner, who opted not to use the procedure provided for
in the Comprehensive Agreement; in the presence of the commander of the
military base at El Tucan, the committee drew up a document stating that
the committee was being dissolved and all the members of the patrol signed
it. The base took back the weaponry and the log book, and thus the CVDC
was dissolved.
127. Even so, in many communities there are still patrol members who
persist in calling anyone who does not wish to go on patrol or who is a
member of a human rights non-governmental organization a guerrilla. In
some cases, the army's efforts to point out that membership in CVDCs is
voluntary and to explain to the community the role of human rights
monitoring organizations, especially the Office of the Counsel for Human
Rights and including MINUGUA, has had positive results in that intimidation
and harassment have ceased.
128. The Mission, in verifying violations of priority rights, has come
across numerous cases and situations in which responsibility lies with
members of CVDCs, the common characteristic being a high degree of
impunity, as has been discussed more fully in the section referring to
Commitment III.
Commitment VI. Military conscription
129. Based on the complaints received, the Mission has not noted any cases
of forced military conscription. Voluntary service is the only type in
effect until a new military service act enters into force. However, since
this report was completed, the Mission has learned that the Counsel for
Human Rights had received complaints of lack of compliance with this
commitment. The Mission will therefore continue to monitor this carefully
in future.
130. It has been found that not all communities are aware of the
situation; this has caused concerns and misunderstanding in some limited
cases, but these can be remedied with better information.
Commitment VII. Safeguards and protection of individuals and entities
working
for the protection of human rights
131. During the period under review, situations arose which affected the
safeguards of those persons working for the promotion and protection of
human rights. The most serious was the murder of Manuel Saquic, Pastor
(para. 33), followed by threats to other persons in that field. In the
same vein, a United States citizen connected to the Commission on Human
Rights of Guatemala was subjected to ill-treatment (para. 41). Some non-
governmental organizations working in the field of human rights were the
target of actions inconsistent with this commitment. Furthermore,
verification shows that some people, particularly members of the army and
CVDCs, continue to equate the activities of such organizations with those
of guerrillas and subversives, and to try to intimidate persons who seek to
promote human rights activities.
Case 1
132. Since 21 July, the Mission began to verify that the headquarters and
members of the Centre for Legal Action in Human Rights, a well-known non-
governmental organization dedicated to the protection of human rights, were
under constant surveillance. As a result of the verification, it was
learned that one of the vehicles used in this surveillance was registered
as the property of the Presidential Staff.
Case 2
133. In the village of Sajquim, San Marcos, as part of its educational
outreach the Catholic Church offers adult literacy classes, using materials
that focus on human rights. At a meeting called by the military
commissioners on 9 March the students were told that they must not attend
the classes because the content helped the guerrillas. After hearing this,
a large percentage of the students stopped attending.
Commitment VIII. Compensation and/or assistance to the victims of human
rights
violations
134. As of the end of this reporting period, the Mission has not received
any information on the entities responsible for devising government
measures and programmes of a civilian and socio-economic nature to assist
the victims of human rights violations. This information had been
requested during the first reporting period, in order to evaluate progress
in the fulfilment of this commitment.
135. In view of the fact that the Comprehensive Agreement did not
establish a specific deadline for fulfilling this commitment, and bearing
in mind the various types of difficulties which must be overcome for the
Agreement to be fully and effectively implemented the previous report had
recommended, as a first step, that a plan of action should be drawn up.
The Mission is concerned to see that there is no indication thus far that
the relevant governmental bodies have heeded the recommendation.
Commitment IX. Human rights and internal armed confrontation
136. During the period covered by this report, the Mission verified
complaints of alleged violations by both parties of the commitment to
respect the human rights of those wounded, captured and those who have
remained out of combat, as well as to end the suffering of the civilian
population.
Suffering of the civilian population
137. URNG actions which constitute violations of the commitment to end the
suffering of the civilian population inasmuch as they have placed civilians
at risk as a result of attacks against military bases, have continued to be
verified. Although URNG claims that the risk to the civilian population in
this type of action is due to the particular location of the military
bases, which are built in population centres or near inhabited areas,
verification has shown that in many cases, the risk has resulted from
improper planning or execution of actions by the guerrillas. Some of these
cases are summarized below.
Case 1
138. On 21 July at 3 a.m., the military barracks at Alotenango, San Juan
Alotenango, Sacatepequez, was attacked by URNG from the front, with rifle
fire and by an RPG7 grenade launcher. This incident left one soldier
wounded by shrapnel and damaged the homes of civilians, with clear risk to
persons.
Case 2
139. On 4 July, members of URNG launched grenades into the barracks of the
Honour Guard Brigade in the capital, one of which landed in a private
garage, causing damage to civilian property. The action was particularly
serious because of the inherent risks, although fortunately, no casualties
were reported.
140. Cases of explosions of mines or explosive devices causing civilian
deaths were also verified. Verification is difficult, particularly when it
involves attempting to determine the specific origin, or the time the
device was planted. The following case stands out because of its tragic
consequences:
Case 3
141. On 19 July at 1.45 p.m., an explosion occurred on the road between
the canton Chujuexa II-A, Cupol, Municipality of Chichicastenango, at the
community school. The blast killed Nicolas Mendez Bat Cibal (11 years
old), and his brothers Victor Mendez Morales (10 years old) and Diego
Mendez Morales (8 years old) and left a hole 1.1 metres deep and 23 cm wide
at the top.
142. The adoption of Decree Law No. 60/95, concerning the reduction of
risk to the inhabitants of areas affected by the armed confrontation, by
means of the removal and deactivation of mines and other explosive devices
is a positive step the Congress has taken in the difficult task of
eliminating these devices, which, in many cases, cause civilian casualties.
In order for the proposed plan to be effective, it should be accompanied by
precise details about mined areas, mines, ammunition or explosive devices,
which the army or URNG could provide to the agencies responsible for its
implementation.
143. Once the election campaign was under way, URNG proceeded to occupy
certain localities, and generally to engage in political propaganda
activities. These activities, which do not, in themselves, constitute a
violation of the Comprehensive Agreement, in one or two cases, such as that
illustrated below, resulted in injury to civilians or private property, and
that is a violation of the Agreement. The possibility of retaliation by
the army presents another risk.
Case 4
144. On 4 July, about 100 URNG members occupied various hamlets of
Quetzaltenango. At 1 p.m., the driver of a truck transporting goods of the
Transval company, apparently believing that he was about to be attacked,
did not stop at a guerrilla checkpoint in the vicinity of Concepcion
Chiquirichapal. The officers at the checkpoint fired at the truck,
seriously wounding a security guard and slightly wounding the company
accountant. The driver stopped at a second checkpoint, where URNG members
asked other civilians to take the wounded to Quetzaltenango.
Actions related to the "war tax"
145. In its second report, the Mission stated that it had reiterated to
URNG, in connection with the so-called "war tax", that the threats which
have accompanied demands for such tax in the cases reported to it, and
injury to persons, are violations of human rights accorded priority under
the Comprehensive Agreement and that, by the same token, actions against
civilian property or reprisals are violations of Commitment IX of that
Agreement. MINUGUA made its position known in a public statement issued
after the second report was completed but before its publication.
146. Verification has brought to light ongoing complaints of threats and
actions against civilian property, carried out by URNG during attempts to
collect the tax. As indicated in the second report, this situation is
further complicated by the fact that third parties take advantage of this
practice of URNG to extort money from private individuals for their own
benefit.
Case 5
147. On 31 May at 12 p.m., five URNG members appeared at the Nicte estate,
Sayaxche, Peten, to collect the war tax. When they could not come to an
agreement with the foreman, they burned the estate's tractors and radio
communications equipment.
Wounded and captured combatants
Case 6
148. On 22 June, in the vicinity of the place known as Boqueron Viejo,
Nebaj, an ambulance belonging to the volunteer fire department carrying
three soldiers in civilian clothes, which was on its way to evacuate two
soldiers wounded in a prior encounter, was detained by URNG members for an
hour, after which it was forced to go back, thus impeding the evacuation.
149. Former guerrilla Emilio Paau, who, after surrendering voluntarily,
had been burned with cigarettes in the military base at Peten (para. 138 of
the second report), was coerced by soldiers in the military zone into
signing a paper denying that he had been mistreated and declining to take
any legal action against the army.
150. Currently, the Mission is investigating a number of reports related
to this commitment, including a URNG report on the death of guerrilla
Emiliana Patrocinia Mazariegos, which, according to the army, occurred as a
result of the confrontation of 13 August 1995 at the El Bramadero farm in
Peten. By order of the justice of the peace, the body was buried the
following day before an autopsy could be performed, on the pretext that it
was in an "advanced" state of decomposition. However, the URNG report
states that the combatant was captured alive.
Displaced persons, refugees and returnees
151. In the performance of its functions, the Mission has continued to
take into account the situation of the most vulnerable groups in society
and of the population directly affected by the armed conflict, such as
displaced persons, refugees and returnees, and has continued to cooperate
with the Office of the United Nations High Commissioner for Refugees in
resettling returnees in various departments. In addition to investigating
cases of illegal interference with this process, the Mission has observed
that some groups of returnees wish to participate in elections, either by
organizing citizens' committees or by supporting specific candidates. In
view of this development, special care will have to be taken to ensure that
such civic participation takes place freely and without interference.
Case 1
152. The illegal interference with the return of refugees to San Antonio
Tzeja, Ixcan, Quiche (para. 143 of the second report), culminated on 28
June 1995 when the group of returnees, who had stayed in the Church of
Cantabal for over two months, decided to go to San Antonio Tzeja. Half a
kilometre from that point, they were violently intercepted by a group of
military commissioners, CVDC members and other persons, led by a civilian
for whom an arrest warrant had been issued on 25 May 1995 and who stands
accused of various offences. These people not only interfered with the
returnees' freedom of movement, but also displayed weapons and made death
threats against the returnees and against inhabitants of the town who were
willing to accommodate them, and even detained five international
officials, in front of 70 police officers who were unable to stop them or
to capture the chief perpetrator (para. 24).
153. On 30 June, a government commission visited the site and succeeded,
weeks later, in persuading the returnees to move to a location two hours
away from San Antonio Tzeja. Despite these positive developments, the
investigation revealed that those responsible are still at large, cases of
intimidation continue and the State is not living up to its duty to protect
the rights of the returnees.
IV. INSTITUTION-BUILDING, INTERNATIONAL TECHNICAL AND FINANCIAL
COOPERATION AND HUMAN RIGHTS PROMOTION AND EDUCATION
A. Institution-building
154. The parties to the Comprehensive Agreement recognized the need to
enlist the Mission's help in strengthening national entities working for
the protection of human rights. Although this process hinges primarily on
decisive action by the authorities, with the cooperation of the
international community, the Mission's verification activities help to
determine priorities for institutionbuilding.
155. Institution-building is essential in a context where laws are being
disobeyed for a number of reasons. To correct this situation, the process
must take into account the diversity of institutions and problems and must
be based on reaching a consensus with the local counterparts to ensure that
projects are implemented.
156. Cooperation in strengthening the judiciary is based on the premise
that each of the individual judges, who have a monopoly on the
administration of justice, must constitute the last and best defence of
respect for human rights, and must enjoy an autonomy and independence
limited only by law. The verification process has revealed that factors
both within and outside the judiciary affect the observance of this
principle, as well as access to the courts and the pleading of defendants'
cases in legal proceedings. The judiciary must improve the organization of
judicial offices, the legal information system and procedures for assigning
cases and process-serving.
157. On 4 August 1995, a framework agreement on technical cooperation was
concluded between MINUGUA and the judiciary. It provides for assistance to
the Public Defender's Office, the consideration and implementation of a
plan for improving the juridical information system and measures to
strengthen the Judicial Training School.
158. The verification process showed that the Public Prosecutor's Office
has neither the capacity nor the institutional will to investigate crimes,
particularly in unusually important cases. It also revealed that most
prosecutors are unfamiliar with basic concepts for planning criminal
investigation strategies and organizing work, and that they do not work
closely enough with the National Police.
159. The technical cooperation agreement between the Public Prosecutor's
Office and the MINUGUA/UNDP Joint Unit provided for the establishment of a
Technical Advisory Unit within that Office, whose purpose is to train
prosecutors. The Unit provides guidance and training in organizing
investigations, planning strategies for public and oral proceedings and
managing cases. In addition, a handbook for prosecutors and various forms
to facilitate their work are being prepared. Seven of the eight courses
scheduled have already been given, and the training programme is to be
expanded to cover assistant prosecutors. The agreement is to be extended
and broadened to include assistance to the Board of the Public Prosecutor's
Office and to the Attorney General in drawing up regulations, inter alia,
for the staff of the Public Prosecutor's Office.
160. It has been noted that the Public Defender's Office, which still is
not operational in all parts of Guatemala, suffers from a serious shortage
of funds and human resources. Under the institution-building project for
this Office, agreed upon with the Supreme Court of Justice on 4 August
1995, defence lawyers will be trained in the use of the Code of Criminal
Procedure and a plan will be devised for expanding the public defence
system.
161. Support for the Office of the Counsel for Human Rights in
investigating human rights violations will focus on meeting that Office's
need for an autonomous mechanism for investigating reports and verifying
that CVDC members are not coerced into joining those groups. The
MINUGUA/UNDP Joint Unit will soon conclude a framework agreement with that
Office on strengthening the Department of Investigations and the Department
of Indigenous Affairs.
162. The verification process revealed the extreme institutional weakness
of the National Police and the need for radical reform. The Mission's
cooperation in strengthening this institution will focus on supporting the
reform efforts made by the Government in compliance with its commitment to
continue to purify and professionalize the security forces. The project
agreed upon with the Ministry of the Interior and the Director of the
National Police, which is being implemented with support from the
Venezuelan Government and UNDP, will serve to strengthen the areas of
investigation and coordination with the Public Prosecutor's Office.
163. The Mission's investigations also indicated that problems with access
to the courts and to defence counsel, as well as the lack of court
interpreters, are most likely to affect the indigenous population. As part
of its cooperation in institution-building, MINUGUA will soon launch a
number of local-impact programmes to lay the foundations for solving these
problems at the national level.
B. Technical and financial cooperation
164. Support from the international community took the form of financial
cooperation, which contributed a total of US$ 1.7 million to the Trust
Fund, thanks to generous donations of US$ 200,000 from the Government of
Denmark, US$ 500,000 from the United States of America and US$ 1 million
from Norway.
165. The cooperation agreement with Norway, signed on 26 June 1995,
confirmed the offer to donate US$ 1 million through the Norwegian Agency
for Development Cooperation. This contribution is being used to continue
institution-building efforts in the Public Prosecutor's Office (para. 159)
and to begin such efforts in the Public Defender's Office. These resources
also made it possible to establish a fund for national and international
consultants and to organize a number of events on topical issues and on
human rights promotion and education. Half of the resources are used to
support the dissemination of information on the Agreement on Identity and
Rights of Indigenous Peoples.
166. The donation from the United States Government, which was confirmed
on 4 August 1995, is being used to complement institution-building
activities in the Public Defender's Office by training public defenders and
officials of the Office and drawing up an agenda for its expansion. These
resources are also used to provide technical assistance to the Supreme
Court of Justice for its technological modernization programme and to
support the Judicial Training School (paras. 157 and 160).
167. An additional contribution of US$ 500,000 from the United States of
America is being negotiated for institution-building activities related to
the Agreement on Identity and Rights of Indigenous Peoples. Offers of
support from the Netherlands (US$ 260,000) and Sweden (US$ 1 million) will
be confirmed shortly.
168. In cooperation with UNDP, support for the Office of the Counsel for
Human Rights in the area of indigenous peoples' rights was negotiated with
Denmark's Human Rights Programme for Central America (PRODECA). UNDP has
launched a technical assistance project into which the PRODECA contribution
will be incorporated under a cost-sharing scheme, with joint technical
assistance and supervision. In addition, the MINUGUA/UNDP Joint Unit, with
the support of the Government of Venezuela, has provided two police experts
on criminal investigation and coordination between the Public Prosecutor's
Office and the National Police (para. 162).
169. A letter of intent was signed with the Inter-American Institute of
Human Rights to emphasize common areas of work in institution-building,
human rights promotion and education, the rights of indigenous peoples and
the comparative study of human rights and humanitarian law.
C. Human rights education
170. During the period under review, 66 human rights training seminars and
nearly 250 informal talks on the various agreements and the Mission were
organized. These activities, which attracted over 18,000 participants,
were made possible by the European Union's Institution-Building Project for
the National Commission for Refugees, Returnees and Displaced Persons.
Arrangements for this project, which will be implemented for four months at
a cost of US$ 45,000, were finalized on 3 May 1995 through a joint
cooperation agreement.
171. The education and training activities are aimed at both State
authorities (prosecutors, judges, police officers) and human rights
advocates from non-governmental organizations. The promotional and
informational talks on human rights are targeted at the general public,
including representatives of various organizational structures.
172. Training activities have come up against serious obstacles, such as
illiteracy, especially among women; ignorance of the basic concepts of the
rule of law, democracy, justice and even human rights and the bargaining
process; linguistic and cultural differences, which make it hard to
communicate with the population; the lack of translation services;
political polarization; and the unrealistic expectations that have
accompanied people's acceptance of MINUGUA. At a subsequent stage, it will
be necessary to prepare projects to strengthen entities that provide human
rights education and training.
V. AGREEMENT ON IDENTITY AND RIGHTS OF INDIGENOUS PEOPLES
173. The Agreement on Identity and Rights of Indigenous Peoples expanded
the Mission's mandate and functions by requesting MINUGUA to verify the
situation with respect to the human rights recognized under Guatemalan law
and in international instruments on the subject, which have immediate force
and application. It also requested international cooperation for
disseminating the Agreement and complementing national efforts to fulfil
the Government's commitments. In that connection, the Mission has
intensified its activities in the areas of public information, verification
and institution-building.
174. The wide dissemination of the Agreement, particularly in indigenous
communities, is a prerequisite for its implementation. Accordingly, the
Mission has carried out and supported various public information
activities, beginning with the publication of 5,000 copies of the
Agreement.
175. Together with the United Nations Educational, Scientific and Cultural
Organization (UNESCO) and the Academy of Mayan Languages, MINUGUA has
supported national efforts to translate the Agreement into nine Mayan
languages; the Ministry of Education and the Universidad Rafael Landivar
are also involved in this project. As a first step, the Mission is
financing workshops in which translators from different linguistic
communities seek to harmonize the terms used in the various languages. The
Peace Commission (COPAZ) has participated actively in this effort.
176. The Mission's regional offices have organized workshops and seminars
to promote the dissemination of the Agreement, to be followed by a more
intensive information campaign in the coming months.
177. In consultation with the parties and indigenous organizations, the
Mission prepared a handbook of instructions for verifying compliance with
the Agreement, which establishes the general framework and procedures for
verification. This handbook reflects the unique nature of the commitments
made in the Agreement, which focus on the constitutional, legal and
administrative reforms considered necessary for the elimination of
discrimination, both de facto and de jure, and for the effective exercise
of the specific rights of indigenous peoples. In this connection, the
Agreement stipulates that "all matters of direct interest to the indigenous
peoples need to be dealt with by and with them", and provides for the
establishment of joint commissions composed of an equal number of
representatives of the Government and representatives of indigenous
organizations for the preparation of the most important reforms, as well as
other forums for participation and consultation.
178. Although the vast majority of the commitments in the Agreement
concern human rights, only those rights which are already recognized under
Guatemalan law and which do not require the institution of reforms in order
to be effectively enjoyed can be considered to be in force and verifiable
by the Mission. Thus, pending the conclusion of an agreement on a firm and
lasting peace, the verification process will focus primarily on equal
treatment and non-discrimination with respect to indigenous peoples.
However, the Mission believes that the Government should speedily initiate
the consultation process or adopt the measures needed to ensure the
effective exercise of these rights.
179. The process of investigating individual cases takes into account the
rights of indigenous peoples as set forth in the Guatemalan Constitution
and in international human rights instruments to which Guatemala is a
party, particularly the International Convention on the Elimination of All
Forms of Racial Discrimination, and therefore emphasizes discrimination
with respect to cultural, civil and political rights. By observing
situations, MINUGUA will verify compliance with other aspects of the
Agreement, in cooperation with the organizations, entities and traditional
authorities of indigenous peoples.
180. In promoting and protecting the human rights of indigenous peoples,
special attention must be paid to institution-building efforts in State and
indigenous organizations. The Mission's priorities in this area are based
on the Agreement itself: establishing and strengthening mechanisms and
organizations that defend the rights of indigenous peoples and guarantee
due process, and strengthening indigenous institutions and their
traditional norms.
181. The Mission's strategy is intended to fulfil both of these
commitments. For the short term, emphasis has been placed on programmes to
strengthen entities that protect and defend indigenous rights, to
facilitate access to the justice system and to fight discrimination.
Through the MINUGUA/UNDP Joint Unit, the Mission has designed a project to
support and strengthen the Department of Indigenous Affairs of the Office
of the Counsel for Human Rights.
182. Other projects in Quetzaltenango and the Ixil region of Quiche
concern popular law offices and bilingual interpretation. The aim of the
pilot project in Quetzaltenango is to design and later implement a model
for the management of translation and training services for judges and
prosecutors.
VI. CONCLUSIONS AND RECOMMENDATIONS
183. The Mission concludes that during the period covered by this report,
although certain positive steps and attitudes already indicated in the
second report have been maintained, the general human rights situation in
Guatemala is still a cause for concern and has in some ways taken a turn
for the worse.
184. The serious lack of public security is in itself an encroachment on
human rights because it denies the people the possibility of living free of
fear and of attacks on their lives, integrity of person and liberty.
185. Impunity, as well, undermines basic elements of the rule of law, such
as the principle of legality, which postulates that all are subject to the
law, or the principle of responsibility, according to which there must
always be someone in authority who takes responsibility for all illegal
action by government officials.
186. The Mission believes that the hopes aroused by the progress noted in
the second report were not sustained by further advances. During this
reporting period, it verified a deterioration in some aspects of the human
rights situation, owing to a crisis in the administration of justice
system. This judgement is based on its confirmation of brutal murders,
instances of extreme abuse of authority, threats made against prosecutors
and failures to carry out arrest warrants, not to speak of the more
difficult conditions under which persons and organizations working to
safeguard and promote human rights are operating. The crisis in the
judicial system and the violations of due process have reached a critical
point, and most of the alleged human rights violations have taken place in
a climate of intimidation, which directly affects the ability of government
institutions to deal with the perpetrators.
187. The Mission, on the basis of its own verification, concludes that the
right to life is still the most seriously affected, and that it is so
precarious because the State has shirked its obligation to provide
guarantees and its institutions do not exercise their solemn duty to
prevent, investigate, prosecute and punish crimes.
188. The Mission further concludes that the Government has not adequately
guaranteed the rights to integrity and security of person and to individual
liberty. It has ascertained serious instances of torture and arbitrary or
illegal detention that had not been investigated. The recurrence of acts
of this sort and their countenancing by the authorities also favour
impunity.
189. The verification process has allowed the Mission to conclude that
persons working to promote and safeguard human rights continue to be abused
and intimidated, and that the assassination of Pastor Manuel Saquic and the
subsequent threats have made it much harder for human rights activists and
organizations to do their work. This unfortunate development is an example
of the pernicious impact of the kind of discourse that equates human rights
activism with subversion.
190. Verification by the Mission has shown that the power of criminal
organizations and of individuals - with or without links to the
Government - who commit crimes to settle police or private scores is
greater than the power of the institutions responsible for combating them.
This equation will be reversed only when criminal agents and groups are no
longer encouraged in their actions by the growing climate of impunity and
the sure knowledge that these institutions are weak, in other words, when
the institutions act decisively and take whatever steps they can and must
take.
191. Given the repeated and confirmed occurrence of criminal activity by
illegal groups and clandestine machinery, to which government officials are
frequently linked, the Mission is compelled to recommend once again that
the Government should identify, disband and punish such groups,
investigating their possible links with State officials or institutions and
placing the responsibility where it belongs. The Mission also believes
that investigation of these groups should focus specifically on some of the
particularly sensitive areas already indicated, like drug trafficking, car
theft and the smuggling of wood. The failure to comply with this
recommendation benefits the criminal groups and diminishes the credibility
of State institutions and the public's confidence in them.
192. The Mission noted that the right to due process was being violated
more frequently, particularly when it came to the State's legal obligation
to investigate and punish, as could be seen in the almost total failure by
the competent institutions to bring court action and the virtual
miscarriage of justice in response to serious human rights violations.
193. The State bodies that administer justice are responsible for this
situation, especially the Public Prosecutor's Office, which has proven to
be strikingly incapable of initiating criminal proceedings and devoid of
any policy for applying legal controls. The endemic crippling of
investigations is aggravated by the absence of a clear determination on the
part of institutions to investigate and prosecute crimes involving persons
belonging to or related to the army, or officials of the security forces.
194. The Mission finds it troubling that the members of the armed forces
implicated in illicit activities are in a particularly good position to
take advantage of impunity, owing to the particular role which, for
historical reasons, the military has played in Guatemala. It is also a
matter of concern that due process is disregarded primarily in high-profile
cases, in which members of the army or persons linked to it are implicated,
given the interference of military interests in the operations of the
judiciary.
195. The Mission, believing that the participation of members of the army
in trials for crimes which are not specifically military has proven to
interfere with the State's duty to investigate and punish, reiterates its
recommendations relating to a reform of the current administration of
justice system as concerns military matters.
196. The activities of illegal groups or isolated acts by individual
government officials are not the only explanation for the human rights
situation, nor are structural shortcomings the only determining factor.
Rather, the situation is fostered and reinforced by deliberate acts and
omissions on the part of government officials, for which the authorities
must take responsibility.
197. The persistence of impunity is the fault of the Government, not only
because its officials take wrongful advantage of it but because, legally
and politically, its highest authorities have the prime responsibility for
ensuring respect for the human rights of all the inhabitants of Guatemala.
198. Similarly, the present lack of coordination between the Public
Prosecutor's Office, the judiciary and the National Police cannot be
attributed solely to structural shortcomings. The deliberate acts or
omissions of government officials, for which the authorities are
responsible, also come into it.
199. For all these reasons, impunity should be dealt with by the separate
branches of government acting together under strong leadership by the
Executive branch, which is primarily responsible for ensuring respect for
human rights and the safety of the people.
200. While it appreciates the efforts of the highest officials of the
National Police to overcome the institutional flaws that prevent it from
playing the role it should to combat impunity and guarantee public safety,
the Mission feels that these efforts do not suffice. It therefore
reiterates that if the structural and professional weaknesses of the
National Police are to be corrected its institutional bases and the process
used to select and train its officers must be radically reformed.
201. In any case, the Mission welcomes the fact that the positive points
brought out in its previous report still hold true, and it believes that
the President's announcement of the gradual demobilization of military
commissioners until all have been eliminated is a very encouraging step, in
view of the fact that, if fully implemented, this step may help wipe out
one component of impunity. The Mission will be closely watching the impact
on human rights.
202. However, this comparative progress is inadequate without the decisive
adoption of a comprehensive policy to combat impunity. The inadequacy is
institutional, a result of the weakness of government institutions in
enforcing respect for the law and of the lack of any political will to make
headway in actually changing the situation. To repeat what was said in the
previous report, it is not enough for the Government to refrain from
encouraging violations and their commission with impunity. It has to adopt
and apply strong measures based on an overall policy to combat impunity.
203. The Mission thinks that it would be very difficult to make meaningful
progress without giving serious attention to the recommendations made in
its two earlier reports. The Mission cannot use as its criterion for
assessing progress simply the fact that formalities, such as reminders to
concerned institutions, have been completed; rather, it must take into
account substantive actions and their real impact in fostering change. It
is therefore deeply concerned that there is no record of any Government
follow-up to its recommendations, especially those having to do with the
crucial matter of impunity. The one exception was the establishment of an
inter-ministerial liaison commission within COPREDEH, but the Mission has
no information on the impact it has had.
204. Given the disregard for most of the recommendations contained in
previous reports, the Mission reiterates all its recommendations to the
Government, particularly the recommendation to design a comprehensive
policy to combat impunity; and it also reiterates its appeals to the
Supreme Court of Justice and the highest authority of the Public
Prosecutor's Office (paras. 201 ff. of the second report).
205. The Mission is firmly convinced that the Government, which benefited
from most of the commitments of the Comprehensive Agreement, can, in the
time remaining in the President's term of office, adopt crucial measures
along the lines indicated; and it should be a matter of serious interest
for all the political parties to continue along that path. The best
guarantee of that continuity is the country's keen awareness of the
magnitude of the problem of impunity and the need to fight it, an awareness
already apparent in the signing of the Comprehensive Agreement and one that
has only increased, as can be seen in the public statements of various
ecclesiastical and civil authorities.
206. Furthermore, the occurrences verified during this period warrant the
conclusion that URNG is still not living up to its commitments under the
Comprehensive Agreement, particularly the commitment to stop inflicting
suffering on the civilian population, in that it is causing harm or
unnecessarily endangering persons and civilian property for military or
propaganda purposes, and the commitment to respect the rights of the
wounded, in that it is preventing them from receiving needed assistance.
It has also been verified that URNG troops continue violating human rights
by collecting a "war tax", and by threats and reprisals against persons and
civilian property. The failure of URNG to heed and respond to most of the
recommendations made in earlier reports is of serious concern to the
Mission, because allowing the guilty to go unpunished creates a situation
analogous to impunity, for which the URNG Command is politically
responsible.
207. The Mission believes that the Guatemalans themselves are primarily
responsible for overcoming the difficulties standing in the way of the
observance of human rights. To that end, MINUGUA, the Group of Friends of
the Guatemalan peace process and the international community stand ready to
cooperate, provided that the Government and URNG give evidence of firm
determination, without which outside cooperation loses its effectiveness.
Final acknowledgement
208. Lastly, the Mission again thanks the members of the international
community and the ambassadors of the Group of Friends for the willingness
they have shown to support peace, through MINUGUA. It appreciates the
cooperation received from the parties in discharging its functions and
again expresses its thanks to the people of Guatemala for the confidence
they continue to show in the Mission as it fulfils the task set for it by
the parties when they requested its establishment.
Notes
1/ A case is closed when sufficient information has been obtained to
establish whether or not a violation has occurred or when, upon
verification, it has been established that the complaint is based on
inaccurate allegations or falls outside of the mandate of the Mission. It
may also be closed if, after a reasonable period of time, it proves
impossible to confirm it owing to lack of information. In this event the
case may be reopened if new information is obtained.
COMPLAINTS ADMITTED, BY CATEGORY OF ALLEGED VIOLATIONS a/
Right to life
Extrajudicial executions or deaths in violation
of legal guarantees49
Attempted extrajudicial executions18
Death threats 89
Total156
Right to integrity and security of person
Torture6
Cruel, inhuman or degrading treatment3
Ill-treatment13
Excessive use of force3
Other threats 62
Total 87
Right to individual liberty
Arbitrary or illegal detention24
Detention in violation of legal guarantees6
Kidnapping3
Hostage-taking0
Enforced disappearances3
Forcible, unjust or discriminatory recruitment 7
Total 43
Right to due process
Procedural guarantees9
Right of habeas corpus6
Right of access to the justice system 45
Total 60
Political rights 7
Total 7
Right to freedom of expression 3
Total 3
Right to freedom of movement 12
Total 12
Right to freedom of association 12
Total 12
Other violations in the internal armed conflict
Harm or suffering inflicted on civilians31
Attacks on civilian property7
Attacks on property essential to the survival
of the civilian population0
Acts of terrorism0
Failure to protect health workers and religious
workers0
Participation of children under 15 in the
internal armed conflict 2
Total 40
Grand total424
a/ The number of complaints in each category may change during the
verification process.
-----