University of Minnesota Human Rights Library

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 19 OF THE CONVENTION

Third periodic reports of States parties due in 1999

Addendum

GUATEMALA*

[3 February 2000]

* The initial report submitted by the Government of Guatemala is contained in documents CAT/C/12/Add.5 and 6; for its consideration by the Committee, see documents CAT/C/SR.232 and 233/Add.1 and 3 and Official Records of the General Assembly, Fifty‑first Session, Supplement No. 44 (A/51/44, paras. 42‑57). For the second periodic report, see CAT/C/29/Add.3; for its consideration, see CAT/C/SR.324 and 325 and Official Records of the General Assembly, Fifty‑third Session, Supplement No. 44 (A/53/44, paras. 157‑166).

GE.00‑42839 (E)

Introduction

1. The State of Guatemala submits its third periodic report on the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the honourable members of the Committee against Torture. This report covers the period from 1 April 1998 to 31 December 1999. It also contains information dating from before that period, which was not provided to the Committee in earlier reports.

2. The first part of the report details measures and facts relating to the implementation of the Convention, following the order of the articles of the Convention.

3. The second part describes progress in implementing the conclusions and recommendations made by the Committee during its consideration of Guatemala’s second periodic report (CAT/C/29/Add.3) at its 324th and 325th meetings, held on 7 May 1998 (CAT/C/SR.324 and 325).

GENERAL SITUATION

4. Three years after concluding a firm and durable peace, the State of Guatemala is going through an intensive process of the consolidation of peace and political, economic and social reconstruction. In this context, the 11 agreements on various subjects signed as part of the peace negotiations and the 179 commitments they contain have resulted in six major structural transformations in Guatemala: the consolidation of democracy; the restructuring of national security and defence; the reform and modernization of the State; the fundamental reorientation of public investment strategies; the construction of a multicultural, multi‑ethnic and multilingual nation; and reform of fiscal policy and practice.

5. Important changes have taken place: political exclusion became a thing of the past with the registration of the Guatemalan National Revolutionary United Front (URNG) as a political party in 1998; and indigenous peoples can now participate more fully in public life, chiefly through the 15 multisectoral commissions set up under the Peace Accords, some of which have already submitted reports. In addition, 43,000 refugees, mainly in Mexico, have returned to the country; a land fund has been set up and is now the main mechanism for helping landless peasants to gain access to land ownership; infant mortality rates fell from 51 per thousand to 45 per thousand in 1995‑1998; illiteracy rates fell from 37 per cent in 1995 to 31.7 per cent in 1998; a commitment to increase the judiciary’s budget by 50 per cent from 1995 has been honoured; an ad hoc commission has been established to implement the recommendations of the Commission on the Strengthening of the Justice System; the Public Prosecutor’s Office has begun implementing its global restructuring plan and the Public Criminal Defence Institute became financially independent on 11 January 1999, thereby making it possible to extend its coverage; and an Office for the Defence of Indigenous Women was created in July 1999.

6. These achievements are a result of the Government’s desire to honour the commitments contained in the Peace Accords. There are still, however, areas and issues where no great or significant progress has been made, despite great efforts and a willingness to bring about positive change.

7. From another standpoint, it could be said that the challenge facing the State, and particularly its constituent bodies, is to maintain and press on with the transition process, since it is undoubtedly only by promoting and consolidating peace that it will be possible to create a climate conducive to the enjoyment and exercise of human rights in Guatemala. In this regard, there has been a considerable reduction in the kind of human rights violations, such as torture, enforced disappearance and extrajudicial executions, that resulted from the armed internal conflict and the isolated cases that are confirmed by the United Nations Human Rights Verification Mission in Guatemala (MINUGUA) are investigated by the competent authorities in order to clear them up and take measures to prevent them happening again.

I. INFORMATION ON MEASURES TO IMPLEMENT THE CONVENTION

Article 2. Legislative, administrative, judicial or other measures to prevent acts of torture

Legislative measures

8. In order to protect the physical and mental integrity of detained persons or prisoners, the Constitution of the Republic of Guatemala states:

“Article 3. The right to life. The State guarantees and protects human life from the time of conception, as well as the integrity and security of the person.

Article 8. The rights of arrested persons. Every arrested person must be immediately informed of his rights in a manner understandable to him, and particularly of the fact that he may avail himself of a legal counsel, who may be present at all police and judicial proceedings. An arrested person shall not be obliged to make a statement, except before a competent judicial authority.

Article 9. Interrogation of arrested persons and prisoners. The judicial authorities alone are competent to interrogate arrested persons and prisoners. Their interrogation must take place within a period of not more than 24 hours.

Article 19. The penitentiary system. The penitentiary system must aim at the social rehabilitation and reformation of prisoners and the following minimum rules must be observed in their treatment:

(a) Prisoners must be treated as human beings; they must not be discriminated against on any grounds and they may not be subjected to cruel treatment, physical, moral or psychological torture, coercion or harassment, labour incompatible with their physical condition or treatment impairing their dignity. Nor may they be subjected to extortion or scientific experiments;

(b) They must serve their sentences in places intended for this purpose. Penal institutions shall be civilian in character and staffed by specialized personnel; and

(c) Prisoners shall have the right to communicate, on request, with their relatives, their defence counsel, a chaplain or doctor and, where appropriate, with the diplomatic or consular representative of their country.

Failure to observe any of the rules laid down in this article shall give a prisoner the right to claim compensation from the State for any damage caused and the Supreme Court of Justice shall order his immediate protection.

The State shall create and foster conditions for full compliance with the provisions of this article”.

9. In addition, Congress has amended the Penal Code by Decree No. 58‑95 of 10 August 1995, adding article 201 bis, which defines torture as an offence and lays down legal criteria for the prosecution of the offence and the penalty to be applied:

“Article 201 bis (Torture). The offence of torture is committed by anyone who, on orders from or with the authorization, support or acquiescence of the State authorities, intentionally inflicts pain or suffering, whether physical or mental, on another person for the purpose of obtaining from that person or a third person information or a confession concerning an act he has committed or by anyone who attempts to intimidate another person or, by so doing, other persons.

The offence of torture is also committed by the members of groups or organized gangs having terrorist, insurgent or subversive aims or any other wrongful purpose.

The consequences of action taken by a competent authority in the legitimate exercise of its duty and in order to safeguard public order shall not be considered as torture.

Anyone responsible for the offence of torture shall be liable to 25 to 30 years’ imprisonment”.

10. Furthermore, according to article 425 of the Penal Code:

“Abuses against individuals. Any public official or employee who orders the use of undue duress, torture, degrading punishment, humiliation or any measures not authorized by law against a prisoner or detainee shall be sentenced to from two to five years’ imprisonment and general disqualification from office. The same sentence shall apply to those who carry out such orders”.

11. Article 85 of the Code of Criminal Procedure states:

“Unlawful methods of obtaining a statement. The accused shall not be placed under oath, but simply warned to speak the truth. He shall not be subjected to any form of coercion, threat or promise, except in the form of warnings as explicitly authorized under criminal or procedural law. No measures shall be used to compel, induce or oblige him to make a statement against his will and no charges or counterclaims shall be brought with the aim of obtaining a confession”.

Other measures

12. The members of the Committee are referred to the descriptions of other measures taken to deter acts of torture, included in the remainder of this report.

Cases of torture

13. A number of cases of torture have been recorded by the Human Rights Procurator and MINUGUA. However, according to data from the Human Rights Procurator, no cases of torture were recorded during 1998. The statistics from these two sources are given below.

Data from the Human Rights Procurator

14. The detailed 1998 Annual Report of the Human Rights Procurator records one case of torture in the data on resolved individual rights cases, as can be seen from the following table:

Human Rights Procurator

Individual cases resolved in 1998, by right affected

Life	5
Extrajudicial killing	27
Security	30
Abuse of authority	46
Threat	28
Arrest	15
Disappearance	22
Torture	1
Movement	2
Privacy of correspondence	3
Integrity	10
Dignity	1
Private property	2
Petition	8
Association	1
Freedom of thought	6
Defence	4
Penitentiary system	13
Inviolability of the home	1
Due process	11 [bw1]

15. The report also shows that, in the area of individual rights, no cases of torture were recorded in 1998, as can be seen from the following table:

Individual rights

Cases recorded in 1998, by right affected

Extrajudicial killing	2
Life	2
Security	4
Abuse of authority	31
Threat	15
Legal detention	10
Enforced disappearance	2
Integrity	11
Penitentiary system	7
Petition	9
Movement	1
Association	1
Freedom of thought	4
Due process	10
Total	109 [bw2]

Data from MINUGUA

16. According to MINUGUA’s eighth report on human rights, covering the period from 1 July 1997 to 31 March 1998, seven complaints of torture and five of cruel, inhuman or degrading treatment were recorded during the period. It should be noted that the admission of a complaint by MINUGUA does not imply confirmation of a human rights violation. The report also states that seven violations in respect of torture and 21 in respect of cruel, inhuman or degrading treatment were confirmed during the period. It should also be noted that the violations confirmed include not only cases admitted by MINUGUA between 1 July 1997 and 31 March 1998, but also cases admitted during previous periods. This information is summarized in the following table:

Eighth report of MINUGUA

Human rights violations, 1 July 1997‑31 March 1998

Right to personal integrity and security

Complaints admitted

Violations confirmed*

Torture

Cruel, inhuman or degrading treatment

Source: Eighth report of MINUGUA.

* Includes cases admitted in previous periods.

17. According to MINUGUA’s ninth report on human rights, covering the period from 1 April to 31 December 1998, five complaints of torture and six of cruel, inhuman or degrading treatment were recorded during the period. The report also states that 10 violations in respect of torture and six in respect of cruel, inhuman or degrading treatment were confirmed during the period. It should be noted that the violations confirmed include not only cases admitted by MINUGUA between 1 April 1998 and 31 December 1998, but also cases admitted during previous periods. This information is summarized in the following table:

Ninth report of MINUGUA

Human rights violations, 1 April‑31 December 1998

Right to personal integrity and security

Complaints admitted

Violations confirmed

Torture

Cruel, inhuman or degrading treatment

Source: Ninth report of MINUGUA.

18. A comparison of the MINUGUA data in the eighth and ninth reports shows that there was a decrease in the number of confirmed incidents of cruel, inhuman or degrading treatment and a slight increase in the number of confirmed incidents of torture.

19. As of the date of this report, MINUGUA had not yet published its tenth report, which will cover the period between 1 January and 31 October 1999.

Article 3. Measures relating to expulsion, extradition of persons at risk, and monitoring of human rights violations by another State

Extradition

20. According to article 27 of Guatemala’s Constitution:

“Guatemala recognizes the right of asylum and grants it in accordance with international practice. Extradition shall be governed by the provisions of international treaties. The extradition of Guatemalans shall not be sought for political offences and Guatemalans may in no circumstances be handed over to a foreign government, save as provided in treaties and conventions relating to crimes against humanity or violations of international law.

No political refugee shall be expelled from the national territory to the country persecuting him.”

21. The authority competent to rule on extradition in Guatemala is the Supreme Court of Justice.

Expulsion and deportation

22. A new Migration Act was adopted by Congress in November 1998, by Decree No. 95-98, with the aim of harmonizing and modernizing legal procedures relating to migration and fully regulating entry into, residence in and exit from the country for both nationals and aliens, so as to allow the enjoyment of the right to freedom of movement for all, subject to the limitations of the law.

23. According to article 109 of the Act:

“Aliens who enter or remain in the country without authorization from the Department of Migration or without having complied with the requirements laid down in the Act and its Regulations shall be liable to one or more of the following penalties:

(a) A fine;

(b) Deportation;

24. According to article 113:

“Before deporting an alien for the offences defined in the preceding article, the Department of Migration shall observe the following procedure:

(1) Grant the party concerned a hearing within a maximum period of 10 days;

(2) Receive the proposed evidence within a maximum of five days of its being proposed; and

(3) Resolve the situation within a maximum of 72 hours of the holding of the hearing or receipt of the evidence.

Exculpatory evidence shall be admitted in accordance with the provisions of the Code of Civil and Commercial Procedure.”

25. With regard to deportation, article 98 of the Regulations of the Migration Act (Government Order No. 529-99 of 20 July 1999) provides that:

“The Department of Migration, through the Migration Control Branch, shall deport persons pursuant to a court order, which shall be stamped in the passport at the time it is served. If the person does not leave the country or apply for the relevant remedies within the time allowed, he shall be expelled.”

26. As to expulsion, the Regulations of the Migration Act stipulate:

“Article 97. Expulsion: The procedure of expulsion may be applied to anyone violating this Act or its Regulations. To that end, the Director of the Migration Control Branch of the Department of Migration shall prepare an expulsion order and request National Civil Police custody for transfer to the port of entry or the most appropriate point for transfer to the country of origin. For documentation of such an individual, application for identification may be made to his country’s accredited diplomatic mission in Guatemala or the Department of Migration may authorize a special exit pass, depending on the identity documents he carries or the statement he makes.

A false statement made by an alien in order to obtain a tourist or residence permit or a visa may be grounds for expulsion.

If residence by an alien is contrary to the country’s interests, the maintenance of law and order or State security, he shall be expelled.”

27. With regard to remedies in matters of migration, article 116 of the Migration Act stipulates: “The Administrative Challenge Act may be invoked against decisions in matters of migration”. This Act establishes two remedies that may be used to challenge decisions by the public administration: the remedy of review and the remedy of reconsideration.

Article 4. Ensuring that all acts of torture are offences under national law

28. As indicated above, article 201 bis of the Penal Code defines the offence of torture. As described in part II of this report, the Presidential Commission for Coordinating Executive Policy in the field of Human Rights (COPREDEH) prepared a draft amendment to article 201 bis of the Penal Code, which was transmitted to the Office of the Private Secretary to the President of the Republic for consideration and submission to the Congress of the Republic, as a bill proposed by the Executive. This bill is currently under consideration in the Office of the Private Secretary to the President of the Republic (a copy of the proposal is contained in the annexes to this report).

29. According to the Department of Statistics of the Judiciary, no sentences were handed down in 1998 for the offence of torture as provided for in article 201 bis of the Penal Code.

30. In connection with this article of the Convention, account should also be taken of the above‑mentioned article 425 of the Penal Code (Abuses against individuals).

Article 5. Jurisdiction over offences of torture

31. With regard to this article of the Convention, it may be noted that article 5 of the Judiciary Act reads:

“Scope of the Act. The rule of law shall apply to all individuals, whether nationals or foreigners, in residence or in transit, subject to the provisions of international law accepted by Guatemala, and to the entire territory of the Republic, which includes the soil, the subsoil, territorial waters, the continental shelf, the economic zone and airspace, as defined by its laws and by international law.”

32. The Penal Code establishes the following regulations which are applicable to the offence of torture under article 201 bis of the Code:

“Article 4. Territoriality of criminal law. Except as provided for in international treaties, this Code shall apply to any person who commits an offence or misdemeanour in the territory of the Republic or in places or vehicles subject to its jurisdiction.

Article 5. Extraterritoriality of criminal law. This Code also applies:

1. To an offence committed abroad by an official in the service of the Republic, if not judged in the country in which it was committed. 2. To an offence committed on a Guatemalan vessel, aircraft or any other means of transport, if not judged in the country in which it was committed. 3. To an offence committed by a Guatemalan abroad, when his extradition has been refused. 4. To an offence committed abroad against a Guatemalan, if not judged in the country in which it was committed, provided that a charge has been brought by the plaintiff or by the Public Prosecutor’s Office and the accused is in Guatemala. 5. To an offence which, under a treaty or convention, must be punished in Guatemala, even if not committed in that country’s territory. … In other cases, if a sentence is handed down, the least stringent law shall be applied. The foreign sentence shall have the effect of res judicata.”

Article 6. Arrest of a person alleged to have committed torture

33. In connection with this article, account should be taken of the provisions of the Penal Code reproduced in relation to article 5.

34. It should also be mentioned that, in the case of the situations referred to in article 6 of the Convention, the Guatemalan authorities would apply the terms of articles 6 and 7 of the Constitution, which state:

“Article 6. No one may be arrested or imprisoned except for a crime or misdemeanour and by virtue of an order issued pursuant to the law by a competent judicial authority. Cases of in flagrante offences or misdemeanours are excepted. Persons arrested shall be placed at the disposal of the competent judicial authority within a period of not more than six hours and may not be made subject to any other authority. An official or employee of the public authorities who infringes the provisions of this article shall be punished in accordance with the law and the courts shall officially institute the appropriate proceedings.

Article 7. Notification of the grounds for arrest. Every person who is arrested shall be notified immediately, both orally and in writing, of the grounds for his arrest, the authority which ordered the arrest and the place in which he is to be held. This notification shall also be given by the most rapid means possible to the person whom the detainee designates and the authority shall be responsible for giving effect to the notification.”

35. In the case of the situations referred to in article 6, the authority competent to make the arrests would be the National Civil Police, as in the case of any other offence, in accordance with the provisions of article 10 of Congress Decree No. 11-97 (National Civil Police Act): “The National Police shall exercise the following functions. In the performance of its mandate: … (e) Arrest persons by court order or in cases of flagrante delicto and place them at the disposal of the competent authorities within the legal time limit”. The preliminary investigation of the case should be conducted by the Public Prosecutor’s Office in accordance with article 46 of the Code of Criminal Procedure, which states: “Through the officials it designates, the Public Prosecutor’s Office shall be empowered to conduct investigations into the offences assigned to it by this Code and the courts of first instance shall exercise supervisory jurisdiction. It shall also institute criminal proceedings in accordance with the terms of this Code”.

36. Article 309 of the Code of Criminal Procedure states:

“Purpose of the investigation. In its investigation of the truth, the Public Prosecutor’s Office shall take all relevant and necessary steps to determine the existence of the act, with all the circumstances of importance for criminal law. It shall further ascertain who are the perpetrators of the act and establish their identity and the personal circumstances which will be used to assess their responsibility or which will affect their punishability. It shall also ascertain the damage caused by the offence, even if no criminal indemnification proceedings have been brought.”

37. As regards the guarantee contained in article 6, paragraph 3, of the Convention, the State of Guatemala is a party to the Vienna Convention on Consular Relations article 36 of which states:

“If he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.”

On the basis of the obligation assumed under this article, when a foreigner is arrested by National Civil Police officers, he is informed by them of his right to communicate with the consular authorities of his country of origin.

38. In order to strengthen compliance with this obligation, COPREDEH has designed a leaflet with the information that the National Civil Police must furnish to detainees, specifically concerning the following articles of the Guatemalan Constitution: 7 (Notification of the grounds for arrest), 8 (Rights of arrested persons), 13 (Grounds for ordering imprisonment) and 14 (Presumption of innocence and public nature of court proceedings). An extract from article 36 of the Vienna Convention on Consular Relations is also included. The leaflet was published by COPREDEH with financial support from the European Economic Community. In February this year COPREDEH provided the National Civil Police with 25,000 leaflets (a copy of the leaflet is contained in the annexes to this report).

Article 7. Extradition of a person alleged to have committed torture

39. With regard to paragraphs 1 and 2 of this article of the Convention, reference should be made to articles 4 and 5 of the Code of Criminal Procedure and article 5 of the above‑mentioned Judiciary Act.

40. As to paragraph 3 of this article of the Convention, the Constitution states:

“Article 8. Rights of arrested persons. Every person arrested shall be immediately informed of his rights in a manner understandable to him and particularly of the fact that he may be assisted by legal counsel, who may be present during all police and judicial proceedings. An arrested person shall not be obliged to make a statement, except before a competent judicial authority.

Article 12. Right of defence. The defence of the individual and his rights is inviolable. No one may be sentenced or deprived of his rights without having been summoned, heard and convicted in a lawful trial before a competent and pre-established court or tribunal. No one may be tried by special or secret courts or by procedures which are not legally pre-established.”

The Code of Criminal Procedure states:

“Article 20. Defence. The defence of the individual and his rights is inviolable in criminal proceedings. No one may be sentenced without having been summoned, heard and convicted under a pre-established procedure and before a competent court in which the formalities and guarantees of the law have been complied with.

Article 21. Equality of persons on trial. Persons on trial shall enjoy the guarantees and rights provided for by the Constitution and the laws, without discrimination.”

Article 8. Torture in extradition treaties

41. With regard to extradition, article 344 of the Code of Private International Law, to which the State of Guatemala is a party along with other American States, provides:

“In order to render effective the international judicial competence in penal matters, each of the contracting States shall accede to the request of any of the others for the delivery of persons convicted or accused of crime, if in conformity with the provisions of this title, subject to the dispositions of the international treaties and conventions containing a list of penal infractions which authorize the extradition.”

42. Article 345 of the Code states:

“The contracting States are not obliged to hand over their own nationals. The nation which refuses to give up one of its citizens shall try him.”

43. Guatemala has signed extradition conventions with a number of countries, including Belgium, the United States, France and Mexico on specific offences, which do not include those referred to in article 4 of the Convention.

44. However, Guatemala is party to the Convention on Extradition signed at the Seventh International Conference of American States in Montevideo, Uruguay, in December 1933. This international instrument does not specify the types of offence to which it applies and may therefore be applied to the offences for which article 4 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides. To date, however, as regards the Convention on Extradition, Guatemala has not acted either as demanding or surrendering State for this type of offence.

45. The Convention on Extradition is in force in the following States, in addition to Guatemala: Argentina, Chile, Colombia, Dominican Republic, Ecuador, El Salvador, Honduras, Mexico, Nicaragua, Panama and United States.

46. The main articles of this international instrument relating to article 8 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are reproduced below (the full text of the Convention on Extradition is contained in the annexes to this report).

“Article 1. Each one of the signatory States in harmony with the stipulations of the present Convention assumes the obligation of surrendering to any one of the States which may make the requisition the persons who may be in their territory and who are accused or under sentence. This right shall be claimed only under the following circumstances:

(a) That the demanding State have the jurisdiction to try and to punish the delinquency which is attributed to the individual whom it desires to extradite.

(b) That the act for which extradition is sought constitutes a crime and is punishable under the laws of the demanding and surrendering States with a minimum penalty of imprisonment for one year.

Article 2. When the person whose extradition is sought is a citizen of the country to which the requisition is addressed, his delivery may or may not be made, as the legislation or circumstances of the case may, in the judgement of the surrendering State, determine. If the accused is not surrendered, the latter State is obliged to bring action against him for the crime with which he is accused, if such crime meets the conditions established in sub-article (b) of the previous article. The sentence pronounced shall be communicated to the demanding State.

Article 3. Extradition will not be granted:

(a) When, previous to the arrest of the accused person, the penal action or sentence has expired according to the laws of the demanding or the surrendering State.

(b) When the accused has served his sentence in the country where the crime was committed or when he may have been pardoned or granted an amnesty.

(c) When the accused has been or is being tried by the State to which the requisition was directed for the act with which he is charged and on which the petition of extradition is based.

(d) When the accused must appear before any extraordinary tribunal or court of the demanding State. Military courts will not be considered as such tribunals.

(e) When the offence is of a political nature or of a character related thereto. An attempt against the life or person of the Chief of State or members of his family shall not be deemed to be a political offence.

(f) When the offence is purely military or directed against religion.

Article 5. A request for extradition should be formulated by the respective diplomatic representative. When no such representative is available, consular agents may serve, or the governments may communicate directly with one another. The following documents in the language of the country to which the request for extradition is directed shall accompany every such request:

(a) An authentic copy of the sentence, when the accused has been tried and condemned by the courts of the demanding State.

(b) When the person is only under accusation, an authentic copy of the order of detention issued by the competent judge, with a precise description of the imputed offence, a copy of the penal laws applicable thereto, and a copy of the laws referring to the prescription of the action or the penalty.

(c) In the case of an individual under accusation as also of an individual already condemned, there shall be furnished all possible information of a personal character which may help to identify the individual whose extradition is sought.

Article 9. Once a request for extradition in the form indicated in Article 5 has been received, the State from which the extradition is sought will exhaust all necessary measures for the capture of the person whose extradition is requested.

Article 10. The requesting State may ask, by any means of communication, the provisional or preventive detention of a person, if there is, at least, an order by some court for his detention and if the State at the same time offers to request extradition in due course. The State from which the extradition is sought will order the immediate arrest of the accused. If within a maximum period of two months after the requesting State has been notified of the arrest of the person, said State has not formally applied for extradition, the detained person will be set at liberty and his extradition may not again be requested except in the way established by Article 5. The demanding State is exclusively liable for any damages which might arise from the provisional or preventive detention of a person.”

Article 9. Assistance in criminal proceedings

47. With regard to paragraph 1 of this article, the Code of Criminal Procedure stipulates: “Article 158. Foreign courts. Requests made to foreign courts or authorities or received from them shall be processed through diplomatic channels, in the form established by international treaties and custom or, in their absence, by the laws of the country.”

48. The Code of Private International Law, to which the State of Guatemala is a party along with other American States, stipulates: “Article 388. Every judicial step which a contracting State has to take in another shall be effected by means of letters requisitorial or letters rogatory, transmitted through the diplomatic channel. Nevertheless, the contracting States may agree upon or accept as between themselves any other form of transmission in respect to civil or criminal matters.”

49. The relevant statistics do not show that these rules have been applied in connection with the offences for which article 4 of the Convention provides.

50. As to article 9, paragraph 2, of the Convention, it may be noted that a Treaty of Cooperation on Mutual Legal Assistance between the Government of the Republic of Guatemala and the Government of the United States of Mexico was signed in February 1996; it determines which assistance these States should provide to each other when one of them so requests and could therefore be applied to the offences for which article 4 of the Convention provides. To date, however, there is no record that the Treaty has been applied to such offences.

51. Two paragraphs of article 1 of the Treaty, which are considered to be significant in this regard, are reproduced below:

“Article 1: Scope of the Treaty

1. The parties shall cooperate with each other by taking all appropriate measures

legally available to them for the provision of mutual assistance in criminal matters, in accordance with the terms of this Treaty and within the limits of the provisions of their respective domestic legislation. The purpose of such assistance shall be to prevent, investigate and prosecute offences and to institute any other criminal proceedings arising out of acts which come within the competence or jurisdiction of the requesting party at the time when the assistance is requested and in relation to related proceedings of any other kind in respect of the criminal conduct in question.

2. For the purposes of paragraph 1, ‘criminal matters’ shall mean for the Parties, any

investigation and procedure relating to offences defined in accordance with State or domestic laws” (the full text of the Treaty is contained in the annexes to this report).

52. It is also important to note that Guatemala is a member of the International Criminal Police Organization (INTERPOL), which is a channel of communication between the police forces of its member countries (over 155) and whose aims are, according to article 2 of its Constitution:

“(a) To ensure and promote the widest possible mutual assistance between all criminal police authorities within the limits of the laws existing in the different countries and in the spirit of the ‘Universal Declaration of Human Rights’; and

(b) To establish and develop all institutions likely to contribute effectively to the prevention and suppression of ordinary law crimes.”

53. As a member of INTERPOL since 1949, Guatemala has, through the National Central INTERPOL Office, played a key role in the international crime prevention system, which has involved:

Centralizing information on crime of international concern and transmitting the documentation it has collected to other INTERPOL Offices;

Ensuring that police operations and action requested by other member States through their Central Offices are carried out in its territory;

Transmitting requests submitted by the courts to other National Central INTERPOL Offices for compliance abroad.

Article 10. Education on the prohibition of torture in the training

of law enforcement personnel

54. The penitentiary system in Guatemala is the responsibility of the Office of the Director‑General of the Penitentiary System, which is a department of the Ministry of the Interior.

55. At present, this system still has a number of defects. In 1996, the non-governmental organization Guatemalan Institute of Comparative Studies in Criminal Sciences prepared a study for MINUGUA entitled “Diagnóstico del Sistema Penitenciario” (Diagnosis of the penitentiary system). Another study entitled “El Problema de la Situación Preventiva en Guatemala” (The problem of pre-trial detention in Guatemala) was prepared in 1997. Both documents state that the Guatemalan penitentiary system’s main problems are physical infrastructure and administrative functions involving procedures relating to the treatment, separation and care of prisoners.

56. The Government of Guatemala has planned to invest 48 million quetzales (US$ 6,022,585) in the construction of 12 prisons in 12 departments at a cost of 4 million quetzales (US$ 50,882.06) each. Progress has been made in designing and drawing up the plans for these small prisons, together with studies for maximum security prisons, one of which has been in operation in the Department of Escuintla since the second quarter of 1999.

57. The national authorities are aware of the need for the adoption of a new penitentiary system act to bring about substantive structural changes. The Ministry of the Interior set up a special commission composed of two representatives of the Ministry of the Interior, enforcement judges, prosecutors, a representative of MINUGUA and the Prisons Department in order to draft a bill which would include proposals for the full restructuring of the present system, taking into account its real needs. The draft is currently under study by the Congressional Interior Commission prior to being submitted to the plenary of Congress in the form of a bill.

58. MINUGUA began the project on the improvement of the penitentiary system in July 1998; the aim is to change the system as a whole, on the basis of the formulation and adoption of a prisons policy which respects the dignity of persons deprived of their liberty and includes statutory reform and a human resources development plan.

59. In the context of this project, the following training was given in 1998:

Training course for senior officials of the penitentiary system;

Training course for security system managers in the penitentiary system.

The courses covered the following topics: ethics and human rights; history of punishment; prison legislation; national and international protection of human rights; criminology; prison studies; and prison security.

60. As a result of these courses, all centres for the execution of sentences and three pre‑trial detention centres (Santa Teresa, Zone 18 Pre-Trial Detention Centre and Fraijanes Pre‑Trial Detention Centre) are in the hands of persons with proper training in prisoners’ rights.

61. A training course for new prison guards was held in April 1999 with the participation of 115 persons currently working in prisons. The course attached particular importance to respect for the human rights of prisoners.

62. Work was done in 1998 on setting up the Penitentiary System College with the support of MINUGUA’s improvement of the penitentiary system project for the main purpose of providing efficient and adequate professional training for prison staff. The first group of staff of the Prison Studies College was established on 10 June 1999, and composed of 26 well-known Guatemalan professionals in the field. This first group prepared the methodology, curriculum and legal status proposed for the College.

63. The College began its activities on 17 November 1999 and in accordance with the initial guidelines, is the training centre for prison staff, with training based on full respect for human rights. The inaugural course on “Health in prisons”, which was held from 17 to 19 November 1999 for doctors, nurses, social workers and administrative staff in the Guatemalan penitentiary system, dealt with the topic of health care for male and female prisoners; it proposed that a new model of health care needed to be designed and that health in prisons should be regarded as a public health problem. Steps are currently being taken to make the College the information focal point for institutions, organizations and persons interested in the subject. Its establishment meets the need to ensure that prison staff is involved and kept up to date, as well as the training and information needs of interest groups, such as non-governmental organizations and others; it will also promote research and the dissemination of information on criminological, prison, penological and related topics.

64. Also in connection with staff training, discussions were held, on the initiative of the Presidential Commission for Coordinating Executive Policy in the field of Human Rights (COPREDEH), with officials of the penitentiary system in July 1998 to plan a training programme for prison guards which would cover international United Nations instruments on the treatment of prisoners, the Code of Conduct for Law Enforcement Officials and other international human rights instruments.

65. It should be pointed out that, in the National Civil Police Academy, the basic human rights course uses the text “A basic human rights course, a handbook for police officers”. Part III (Ethical and lawful police conduct), chapter 1 (Code of Conduct for Law Enforcement Officials), of this text, which was published by MINUGUA and the Human Rights Procurator, explains the Code’s police policy of completely prohibiting torture, ill-treatment and cruel, inhuman or degrading punishment. It also refers to the provisions on torture found in the International Covenant on Civil and Political Rights and the American Convention on Human Rights. It places particular emphasis on specific international instruments on the subject, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Inter-American Convention to Prevent and Punish Torture. It also deals with the provisions of the Constitution relating to the protection of physical integrity and the articles of the Penal Code on torture (a copy of the text is contained in the annexes to this report).

66. It may be noted that the rules of the Guatemalan Police are distributed to all students in the National Civil Police Academy; volume II contains the main national and international standards for the protection of human rights, including the prohibition of torture.

67. In order to enable public officials and the public in general to know about international rules on the rights of prisoners, COPREDEH has published a document on human rights instruments in the administration of justice with the support of the European Union. This document includes, inter alia, such instruments as: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment; the Standard Minimum Rules for the Treatment of Prisoners; the Basic Principles for the Treatment of Prisoners; the United Nations Standard Minimum Rules for Non-custodial Measures; the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules); the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty; the Code of Conduct for Law Enforcement Officials; the Basic Principles on the Independence of the Judiciary; the Basic Principles on the Role of Lawyers; and the Safeguards guaranteeing protection of the rights of those facing the death penalty. Ten thousand copies of this document were published and circulated to officials of the judiciary, the Public Prosecutor’s Office, the Office of the Director-General of the Prison System, the Public Criminal Defence Institute, the Ministry of the Interior, Guatemalan universities and non-governmental

organizations (a copy of this publication is contained in the annexes to this report).

Article 11. Review of interrogation rules, instructions, methods and practices and of arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment

68. The Constitution provides as follows:

“Article 19. The penitentiary system. The penitentiary system must aim at the social rehabilitation and reformation of prisoners and the following minimum rules must

be observed in their treatment:

(b) They must serve their sentences in places intended for this purpose. Penal institutions shall be civilian in character and staffed by specialized personnel; and

The State shall create and foster conditions for full compliance with the provisions of this article.”

69. Guatemala has different detention centres for those awaiting trial and those who have been convicted. There are four men’s penitentiaries and one women’s penitentiary. The men’s penitentiaries are Granjas Penales de Pavón, in Guatemala department; Granja Penal Cantel, in Quetzaltenango department; Granja Penal Canadá, in Escuintla department; and the Puerto Barrios departmental prison. The one for women is the Women’s Orientation Centre (COF). There are also 30 centres for pre-trial detention (for those awaiting trial), spread through all 22 departments.

70. Although the provision regarding separation of prisoners awaiting trial and convicted prisoners is observed in most cases, exceptions are made for reasons of space and the infrastructure of the centres. For example, although the Zone 18 Pre-Trial Detention Centre in Guatemala City is intended to hold persons awaiting trial, it also has a separate section for prisoners serving sentences. El Progreso, Cobán, Mazatenango, Petén and Retalhuleu prisons, which are for those awaiting trial, also hold prisoners serving sentences, who are not kept separate from those awaiting trial. The reason for this is that there is no room for them in the penitentiaries. As of 10 November 1999, Puerto Barrios, which is intended for those serving sentences, held a total of 30 prisoners awaiting trial, in this case because the pre-trial detention centre had been destroyed by an earthquake that hit the department in mid-1999.

71. The pre-trial detention centres also hold persons serving light imprisonment for petty offences. Light imprisonment involves deprivation of liberty for up to 60 days and, under the provisions of article 46 of the Penal Code, must be served in places other than those intended for the serving of prison sentences.

72. As of 20 November 1999, Guatemala’s detention centres held in all: 2,535 male convicts (serving prison terms), 5,087 men in pre-trial detention (awaiting trial) and 318 men serving light imprisonment for petty offences. By comparison, there were 161 female convicts (serving prison terms), 348 women in pre-trial detention (awaiting trial) and 11 serving light imprisonment for petty offences.

73. The table below shows the situation in pre-trial detention centres and penitentiaries. It also includes the information given above and highlights the overcrowding problem in some establishments.

	Men	Men	Men	Women	Women	Women
Detention centre	Convicted prisoners	Pre-trial detention	Light imprisonment for petty offences	Convicted prisoners	Pre-trial detention	Light imprisonment for petty offences	Total per centre	Capacity per centre
Granja Pavón	1 254	0	0	0	0	0	1 254	1 144-M
Granja Cantel	540	70	0	0	0	0	610	800-M
Granja Canadá	443	352	0	0	19	0	814	800-M
Escuintla Prison	0	78	0	0	0	0	78	100-M
Zone 18 Pre-trial	88	1 468	164	0	0	0	1 720	1 000-M
Fraijanes Pre-trial	0	1 021	0	0	0	0	1 021	1 440-M
Women’s Orientation Centre	0	0	0	132	0	0	132	130-W
Santa Teresa	0	0	0	26	210	7	243	500-W
El Progreso	3	102	7	0	0	0	112	100
Antigua Guatemala	0	83	0	0	3	0	86	90
Chimaltenango	0	79	0	0	7	0	86	90
Mazatenango	9	121	38	0	9	1	178	200
Cobán	17	206	52	0	8	0	283	200
Zacapa	0	198	0	0	4	0	202	150-M
Puerto Barrios	161	34	0	2	9	0	206	250-M
Sta. Elena Petén	12	138	37	0	10	0	197	150
Totonicapán	0	35	0	0	4	0	39	80-M 20-W
Sololá	0	82	0	0	1	0	83	30-M 06 W
Retalhuleu	8	44	20	1	3	3	79	66-M 30-W
San Marcos	0	92	0	0	12	0	104	150-M 30-W
Sta. Cruz Quiché	0	98	0	0	0	0	98	60-M 40-W
Cuilapa	0	25	0	0	0	0	25	40-M 10-W