RIGHT TO LIBERTY1
A. General considerations
1. The 1965 Constitution of Guatemala states that in that country “all human beings are free and equal in dignity and rights.” It also establishes that “the free exercise of the rights established by the Constitution is guaranteed with no limitations other than those deriving from the necessity of maintaining the public and social order.”2
Moreover, as explained in chapter I of this report, the basic text also provides that nobody can be arrested or imprisoned except for a crime or a misdemeanor, by virtue of a writ or court order, issued in accordance with the law by a competent judicial authority; and that persons arrested shall be immediately made available to the judicial authority and held in centers designed for preventive detention, different from those in which sentences are to be served. It is also established that preventive arrest may not exceed five days and that within this period an order of imprisonment must be issued or the arrested person must be set free, adding that a judge who prolongs this period will be held responsible.3
2. Likewise, the chapter of this report dealing with the right to justice and to due process indicates that, through Decree Nº 8 of May 3, 1966, the law on amparo, habeas corpus and constitutionality was enacted. This legal regulation governs everything related to the recourse of personal appearance with regard to persons who are imprisoned, arrested or restrained from any other mode of enjoying their individual freedom, or who are threatened with the loss of such freedom. In such instance, these persons have the right to request their immediate appearance before the tribunals of justice for the restitution of their freedom and for an end to the annoyances or the coercion to which they are subjected.4
The current criminal code governs matters related to crimes against individual liberty, establishing that such crimes are pirating or abduction, submission to servitude, illegal detention, and illegal arrest.5
B. Effectiveness of personal freedom in practice
1. As we have seen in preceding paragraphs, Guatemalan legislation constitutionally guarantees personal freedom and establishes the recourses for protecting that freedom; but the state of political violence and insecurity the country is experiencing makes the right to freedom in Guatemala a fiction, a mere useless theoretical protection.
In practice, the recourses established are difficult to gain access to or are inefficient once they are resorted to.
Illegal detentions are carried out by the military or police authorities without any personal exhibition being made.6 Persons are deprived of their freedom without their right to be put before a competent, duly recognized authority.
Citizens are afraid to travel through national territory because at any time they may be arbitrarily taken by uniformed contingents of the national police, who stop vehicles and transients at the entries and exits of cities and towns, highways and roads, to compare the citizens' names with those appearing on lists they have which have been provided by the state security bodies.7
According to denunciations received, persons who for one reason or another, have left the country and have returned to devote themselves to their normal activities are detained and severely interrogated. There have even been cases of persons who disappeared upon their arrival at the airport. Such was the case of Mr. Ricardo Galindo, who, upon returning from Panama, was arrested at Guatemala's La Aurora International Airport and whose whereabouts is unknown.
Persons are frequently taken or kidnapped by paramilitary groups or death squadrons said to be supported by governmental authorities. Persons so taken or kidnapped disappear completely or else their bodies appear in various parts of the cities.
Political leaders, university professors and students, professionals of various disciplines, journalists, priests, members of unions and rural people have been affected by such situations.
2. According to information obtained by the Commission, since mid-1978, more than 615 persons have disappeared after having been taken or kidnapped by state security forces.
Citizen Liliana Negreros, as reported by the Guatemalan press on February 3, 1980, was taken during the funeral of the 21 campesinos who died during the occupation of the Spanish Embassy on January 31 of that year. Her body was found on March 9 together with those of 37 other persons in a deep gull located in the outskirts of San Juan de Comalapa, some 13 kilometers from the capital.
The Guatemalan Government has not acknowledged or explained the arrest and murder of Liliana Negreros.
The Commission has also received and processed denunciations on specific violations of the right to personal freedom. Among these cases, the Commission adopted the following resolutions:
3. CASE 7378 – ARREST AND EXPULSION OF FATHER CARLOS STETTER, PARISH OF THE REGION OF IXCÁN
1. In a communication dated June 19, 1980, the Inter-American Commission on Human Rights received the following denunciation:
On December 20, 1979, father Carlos Stetter, parish of the region of Ixcán, was virtually kidnapped when he was landing at the airport of the city of Huehuetenango in a small plane in which he normally transported sick people as well as medicine and building materials.
A few hours after his expulsion, the authorities denied any information on his whereabouts either to members of the ecclesiastic headquarters or to German diplomats, thus violating constitutional provisions and bilateral agreements between the Federal Republic of Germany and our country.
According to a resolution by the General Bureau of Migration dated December 12, (which was not made known to him until the day on which he was arbitrarily taken and expelled from the country) he was taken by armed men dressed as private individuals to Valle Nuevo, bordering on El Salvador, without being given an opportunity to pick up his belongings or to communicate with his superiors or his Ambassador.
Father Carlos Stetter was born in Jags, Allwangen, Germany, on March 9, 1941, and was ordained priest on July 10, 1966. He arrived in Guatemala in 1971 and subsequently obtained residence after having complied with all legal procedures.
During his first five years, he worked as a priest in the community of Central, Department of Quetzaltenango. The following is remembered as part of his religious work at that place: he unified the work of the state parish clinic, built the churches at Estancia and Xecam, built a medical clinic, cooperated with the establishment of cooperatives, helped introduce electric energy in Xecam, supported the parish school, and provided valuable assistance to sports.
In Quetzaltenango he founded Radio Fraternidad and, being a radio ham, was one of the first to make known abroad the tragedies suffered by the people of Guatemala in the 1976 earthquake. Immediately after the earthquake, he helped organize Operación Fraternidad, in which more than 1,000 persons worked; and having traveled to Germany, he obtained funds with which more than 2,500 housing units were built in the communities of Santa Cruz Balanya, Patzún Patzicia, Tecpán and San Juan Comalapa.
Following the death of Father Guillermo Woods (whose death has thus far not been explained), Father Stetter requested transfer to the region of Ixcán, which has 12,600 inhabitants, feeling that it was one of the most forsaken places and because the people were constantly asking for a priest.
In Ixcán he developed cooperatives, and in a small plane he transported sick people from there as well as medicine and building materials. He organized religious study groups and delegates of the Gospel. Fully understanding his ministry, he took the initial steps toward construction of a school at the request of the people themselves and toward the establishment of a radio broadcasting station and a clinic, which have remained unfinished due to his expulsion.
The Huehuetenango Diocese, where Father Stetter worked, which was always characterized as one of the most peaceful departments in the country, has not escaped the wave of repression existing in the Guatemala nation. In recent months alone, it has been shaken by the murder of the union leader, Mario Mujia Córdova, who worked in the projects of the Diocese in the region of Ixcán; and the brutal assault against Mrs. Leticia Chávez de Rodríguez, a worker in the Huehuetenango national hospital, and the mother of a Guatemalan priest, who lost an arm in the assault and whose life is still in danger. There have also been numerous denunciations by the campesinos, specially in the region of Ixcán, regarding the kidnapping of their local leaders, members of cooperatives, religious teachers and delegates of the Gospel. Lists of persons threatened have also appeared.
The expulsion of Father Stetter has been added to other events, such as the expulsion of Sister Raymunda Alonso Queralt and the murder of father Hermógenes López, which have been direct blows to the Guatemalan church.
There is also a list of more than 20 foreign priests whose expulsion from Guatemala is intended. The temporary visas of some priests who have been living in Guatemala for several years have been renewed to allow them to stay in the country for only an un-extendable period of six months, without any justification.
In this instance, Father Carlos Stetter was vaguely accused of being an “undesirable foreigner,” without stating why, and of “having violated the country's laws,” without saying which laws.
He was subsequently expelled from the country without even having been heard, in violation of Article 53 of the Constitution, which established that no one may be sentenced without having been charged, heard, and convicted in a legal trial.
Father Stetter was arrested without having committed any crime or misdemeanor, for which reason the persons arresting him are responsible for violating Article 45, which establishes that “every person has the right to do whatever the law does not prohibit.” Therefore the persons who arrested him and those who expelled him are responsible for violation of the law, having committed the crime of kidnapping (Article 201 of the Criminal Code) and also the crime of abusing authority (Article 418 of the Criminal Code.)
2. In a note dated June 25, 1980, the Commission transmitted to the Guatemalan Government the pertinent parts of this denunciation, asking it to provide the corresponding information.
In notes dated December 16, 1980, and April 20, 1981, the Commission again addressed the Guatemalan Government, asking for the information anew.
1. Thus far the Guatemalan Government has not answered the aforementioned requests by the Commission for information:
2. Article 39 of the Regulations establishes the following:
1. The facts reported in the petition whose pertinent parts have been transmitted to the Government in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 31, paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. Based on Article 39 of the Regulations, to presume to be true the facts denounced in the communication of June 19, 1980, concerning the arbitrary detention and subsequent expulsion from the country of Father Carlos Stetter.
2. To declare that the Government of Guatemala violated Articles 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), 22 (Freedom of Movement and Residence) and 25 (Right to Judicial Protection) of the American Convention on Human Rights.
3. To recommend to the Government of Guatemala: a) that Father Carlos Stetter be allowed to reenter Guatemala and to reside in that country again if he so wishes; b) that it investigate the facts denounced and that it punish those responsible therefor, and c) that it inform the Commission within 60 days of the measures taken to implement these recommendations.
4. To convey this resolution to the Government of Guatemala and to denouncing parties.8
4. CASE 7464 – ARREST AND DISAPPEARANCE OF THE YOUTH
DOUGLAS SEQUEIRA LÓPEZ, NICARAGUAN STUDENT,
AT THE UNIVERSITY OF SAN CARLOS
1. In a communication dated August 11, 1980, the following was denounced to the Inter-American Commission on Human Rights:
Douglas Sequeira López, Nicaraguan citizen 23 years of age, married, student in the last course of medicine of the University of San Carlos, Guatemala, was arrested by authorities of the Treasury Security Force in Valle Nuevo on the border between El Salvador and Guatemala, on July 25, 1980, when he was returning on a bus of the TICA-BUS Company to Guatemala City to continue his studies.
Despite countless steps taken thus far, his whereabouts is unknown. Arbitrary arrest is denounced, and it is believed that his life is in danger.
2. In a note dated August 12, 1980, the Commission transmitted the pertinent parts of this denunciation to the Guatemalan Government, asking it to provide the corresponding information.
3. In notes dated December 16, 1980, and April 20, 1981, the Commission again asked the Guatemalan Government for information.
1. Thus far the Government has not answered the Commission's request for information.
2. Article 39 of the Regulations provides as follows:
1. The facts reported in the petition whose pertinent parts have been transmitted to the government of the state in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 31, paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. Based on Article 39 of the Regulations, to presume to be true the facts denounced in the communication of August 11, 1980, concerning the arbitrary detention and subsequent disappearance of the student, Douglas Sequeira López.
2. To state that the Guatemala Government violated Article 7 (Right to Personal Liberty), 8 (Right to a Fair Trial), 22 (Freedom of Movement and Residence), and 25 (Right to Judicial Protection) of the American Convention on Human Rights.
3. To recommend to the Guatemalan Government that it investigate the facts denounced and, if appropriate, to punish those responsible, and that it kindly inform the Commission of whatever decision it takes within 60 days.
4. To convey this resolution to the Government of Guatemala and to the denouncing parties.9
5. Other information received by the Commission concerns the many occurrences which violate personal freedom, including the following:
a. On June 11, 1980, Aureliano and Octavio López Recinos and Virgilio Villatoro Delgado were taken in Huehuetenango by 20 armed men who interrogated them, beat them and later freed them under the threat of death.
b. On June 11, 1980, the students, Carlos Xicara, Nery Hernández and Milton Ordóñez, were arrested in Guatemala City by detectives of the National Police and later released.
c. In September 1980, Marta Albertina Cucul, a rural woman, was taken by the police, and the recourses to personal exhibition which were presented were not successful.
d. On October 21, 1980, Gustavo Cojon Mach, Ramón Suruy and Cruz Rogelio Chamale Cotzajay were taken by the police in Guatemala city, accused of being subversives.
6. Moreover, this atmosphere of violence and insecurity has intensified the emigration and voluntary exile of Guatemalans who, feeling threatened, prefer to leave the land in which they were born and to support rigors and deprivations of every kind on foreign soil.
Dramatic events have occurred in this regard, such as the case of the massive emigration of nearly 500 campesinos which took place in 1981; they went to Mexico, stating that they had abandoned their homes after Guatemalan military patrols constantly harassed their communities seeking marxists guerrillas. Later, on May 27, press reports indicated that the Guatemalan Government had stated that the Guatemalan campesinos who were supposedly taken under threat of arms to Mexican territory, had returned to the country. In the attempt, 50 persons lost their lives.
7. Also, many persons, feeling threatened, seek the protection of diplomatic asylum.
The following cases can be mentioned as examples:
a. On December 2, 1980, Cristóbal Marroquín requested asylum in the Nicaraguan Embassy.
b. On December 19, 1980, Mr. Alberto Cruz Dávila and Messrs. Rafael E. Bran P., Oscar R. Siliezar, Julio Guillermo López, and César A. Ramírez C. went into exile under the protection of the Costa Rican Embassy.
c. On December 24, 1980, journalist Fernando Noreiga Aguilar and Messrs. Cristóbal Marroquín, Carlos Hernández López, César Hidalgo and Eduardo Castillo Bardales went into exile under the protection of the Nicaraguan Embassy.
8. In the Commission's opinion, the illegal detentions, the total inefficiency of the recourse of personal exhibition, the kidnappings of persons by paramilitary elements connected with the governmental authorities, which often take the form of disappearances, constitute serious violations of the right to personal freedom as established in the Guatemalan Constitution and in the American Convention on Human Rights, and also contribute to the increased atmosphere of insecurity and anxiety the country is experiencing.
1 Article 7 of the American Convention on Human Rights establishes the following: “Rights to Personal Liberty. 1. Every person has the right to personal liberty and security. 2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. 3. No one shall be subject to arbitrary arrest or imprisonment. 4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him. 5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial. 6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest of detention is unlawful. In states Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies. 7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for non-fulfillment of duties of support.”
2 Articles 43 and 44 of the Constitution.
3 Articles 51 and 52 of the Constitution. Article 55 of the Constitution refers to the prison system, which “shall encourage the reform and social readjustment of prisoners.”
4 Article 75 of the law.
5 Article 201 et seq. Of the criminal Code contained in Decree 17-73 of July 27, 1973.
6 As stated in the chapter on the right to justice and to due process, on June 24 and July 3, 1980, the then Vice President of the republic, Dr. Francisco Villagrán Kramer, addressed the President of the judicial branch concerning the detention on June 21 of that year of several members of the Central Nacional de Trabajadores, stating that “in view of the seriousness of the accusation and the juridical importance of the petition as part of a legal system, I consider the official motion appropriate, according to Article 77 of Decree Nº 8 of the Constitutional Assembly, which established personal exhibition.” He also stated that “article 78 of that same law compels all judges and magistrates of the republic to carry out personal exhibitions in their jurisdiction which are subject to the purposes that precept establishes.”
7 Denunciation presented by the Democratic Front against Repression in Guatemala.
8 Dr. Francisco Bertrand Galindo, member of the IACHR, disqualified himself from hearing and deciding this case, and stated that he was doing so because he was residing in Guatemala when the events it refers to are said to have occurred.
9 Dr. Francisco Bertrand Galindo disqualified himself from hearing and deciding this case, and stated that he was doing so because he was residing in Guatemala when the events it refers to are said to have occurred.