THE RIGHT TO JUSTICE AND TO DUE PROCESS1
A. General Considerations
1. The right to justice and to due process is dealt with extensively and exhaustively in Guatemala's internal judicial system.
Both the constitution of the republic and the corresponding subordinate laws govern the various aspects of this right. It can be stated that, both substantively and procedurally, the various provisions concerning the right to a fair trial, freedom from ex post facto laws, the right to compensation, the right to equal protection and the right to judicial protection, which are established in the American Convention on Human Rights, are found in the Guatemalan Constitution and in current legislation on the matter.
2. Based on the information available, this chapter will study the various legal aspects which constitute the Guatemalan judicial system; and it will study the actual functioning of the administration of justice and its direct effect on the protection and observance of human rights in Guatemala.
B. Theoretical Concept of this Right from the Judicial Standpoint
1. Chapter I of this report referred briefly to the right to justice and to due process when it analyzed the relative aspect of the state's political organization and of human rights in the Guatemalan constitutional system.
As has been stated, the 1965 Constitution recognizes that all human beings are equal in dignity and rights. It establishes the nonretroactivity of the law, except in criminal matters when favorable to the guilty party. It states that no person may be compelled in a criminal case to testify against himself, against his spouse, or against relatives within the fourth degree of consanguinity or second degree of affinity. It recognizes that the defense of one's person and of one's rights is inviolable and establishes that no one may be tried by a commission or by special courts. Moreover, the inhabitants of the republic have the right to address petitions, individually or collectively, to the authorities. Petitions regarding political matters are differentiated in terms of procedure from petitions of other kinds addressed to administrative authorities. The Constitution adds that the armed forces may neither debate nor exercise the right of petition.2
2. The Guatemalan constitutional system establishes the separation of powers, and states that it delegates its sovereignty to those powers, which are not subordinate one to the other.
Title VII of the Constitution governs the judicial branch, and it is divided into five chapters devoted, respectively, to General Provisions, the Supreme Court of Justice, the Court of Appeals and Other Courts, the Court of Amparo, and the Court of Constitutionality.
3. The General Provisions provide for the following, among other things:
a. Justice is administered in accordance with the Constitution and the laws of the republic. The authority to judge and to execute judgments rests with the courts of justice. The other agencies of the state must offer the courts of justice any assistance that may be required to carry out their decisions.
b. The judicial function is exercised exclusively by the Supreme Court of Justice and the other courts having ordinary or special jurisdiction. The administration of justice is obligatory, gratuitous, and independent of the other functions of the state. It shall always be open to the public except when morals, the security of the state, or the national interest demands secrecy.
c. Magistrates and judges must be native Guatemalans of recognized integrity and in the enjoyment of their citizenship rights. Magistrates and judges must belong to the professional association of lawyers, with the exception of those cases for which the law provides otherwise.
d. The judicial function is incompatible with the holding of an office in a political party or labor union or with the status of minister of any religion. Municipal mayors may serve as judges of lower courts in those cases and in the manner prescribed by law.
e. The President of Judiciary, the magistrates of the Supreme Court of Justice, of the Court of Appeals, of the Contentious-Administrative Courts, of the Court of Second Instance of Accounts, and of the Court of Conflicts of Jurisdiction, as well as their respective alternates, shall be elected by the Congress of the republic for a term of four years.
f. No trials shall have more than two instances, and a magistrate or judge who has exercised jurisdiction in one of these may not sit in the other instance nor in cassation, for the same matter, under pain of responsibility. No court or authority may try a case that has already been terminated, except in those cases and forms of review specified by law.
g. Courts of justice shall always observe the principle that the Constitution prevails over any law or international treaty. In specific cases, in any instance and in cassation, before sentence has been pronounced, the parties may claim unconstitutionality of all or a part of a law and the court must rule on the matter. If the law is declared to be unconstitutional, the sentence shall be limited to a statement that the legal provision does not apply to the case in question and this shall be transmitted to Congress.
h. The regular courts shall hear all controversies involving private law in which the state, a municipality, or any decentralized, autonomous or semiautonomous agency is a party.3
4. It is established that the Supreme Court of Justice shall consist of at least seven magistrates and that it may be divided into chambers whenever the administration of justice so requires.
The president of the judicial branch is also President of the Supreme Court of Justice, and his authority in respect of the administration and discipline of the courts extends throughout the republic.
The Supreme Court of Justice shall make the appointments, removals from office, exchanges, and transfers of judges of first instance, judges of accounts and judges of lower courts; and it may also transfer magistrates when this is considered desirable. The president of the judicial branch has the authority to appoint the officials and administrative employees thereof; and in accordance with a technical system to be adopted in the regulations that are to be issued by the Supreme Court of Justice, he also has the authority to appoint the clerks, officials, and other employees of the courts of the republic.4
5. With regard to the Court of Appeals and other courts, the Guatemalan Constitution provides that the titular and alternate magistrates of the Court of Appeals and the other courts referred to in Article 253 shall be elected as a group by the Congress of the Republic; and that the Court of Appeals shall be formed into as many divisions as may be determined by the Supreme Court of Justice, which shall also have the authority to fix their residence and jurisdiction.
The Contentious-Administrative Court has the duty of hearing cases involving disputes arising from acts or decisions of the public administration, or municipalities, and of the decentralized, autonomous or semi-autonomous agencies, in the course of performing regular duties, and also cases involving actions deriving from contracts and concessions of an administrative nature.
The judges and the Court of Second Instance of Accounts shall exercise the judicial function in this matter, and the judges of the first instance of accounts must have the same qualifications as the judges of first instance of ordinary jurisdiction.
6. The Court of Conflicts of Jurisdiction shall meet exclusively in the following cases: To settle disputes arising between the Contentious-Administrative Court and the court of ordinary or special jurisdiction; and to settle those that may arise between the public administration and courts of ordinary or special jurisdiction. The military courts are authorized to try crimes and misdemeanors committed by members of the army in active service, and their jurisdiction extends to military men not in active service and to civilians only if they act as chiefs or leaders of armed action against the public powers. These courts shall be governed by the military laws and supplementarily by ordinary legislation.5
7. The Special Court of Amparo is composed of the president of the first division of the Court of Appeals, or in his default, by the president of one of the other divisions, in numerical order, and six members of the same division, chosen by lot from among the principals and alternates. This court takes cognizance of amparo proceedings entered against the Supreme Court of Justice or any of its members, and against Congress and the Council of State for acts and decisions that are not merely legislative.6
8. The Court of Constitutionality consists of twelve members as follows: The President and four magistrates of the Supreme Court of Justice and the others chosen by lot in one group by the Supreme Court of Justice from among the magistrates of the Court of Appeals and the Contentious-Administrative Court.
The Court of Constitutionality shall hear appeals entered against laws or governmental orders of a general nature on the ground that they contain a partial or total defect of being unconstitutional. A measure may be declared unconstitutional only by an affirmative vote of at least eight members of that court.
An appeal on grounds of unconstitutionality may be entered by the Council of State; the Lawyer's Association, by decision of its general assembly; the public ministry, by order of the President of the republic; and any person or entity affected by the law or government order challenged as unconstitutional, with the assistance of ten practicing lawyers.
The Court may order suspension of the law or government order if it is obviously unconstitutional and susceptible of causing damage that cannot be remedied. If the decision declares that a law or government order of a general nature is wholly unconstitutional, the law or order is thereby no longer in effect; and if only partially unconstitutional, that part is thereby without effect. No appeal of any kind may be entered against a decision of the Court of Constitutionality.7
9. As stated in Chapter I of this report, the judicial branch in Guatemala is governed by its own law, contained in Decree Nº 1762 of the Congress of the Republic, dated July 2, 1968.
In the operative part of this law, it is stated, among other considerations, that when the 1965 Constitution is put into effect, it is necessary to harmonize the provisions of the laws that do not meet the precepts contained in that fundamental legal code and to introduce reforms into Guatemalan legislation that contribute to expediting and improving the administration of justice.
Among the general principles contained in the aforementioned law are the following:
- The prevalence of the law extends to all inhabitants of the Republic, including foreigners, except in cases of provisions of international law accepted in Guatemala.
- Ignorance, disuse, contrary custom or practice may not be pleaded as reasons for nonobservance of the law.
- Acts executed against the spirit of the law are null, unless the law itself accepts their validity.
- Special provisions of a la prevail over general provisions thereof.
- Rights granted by the law may be renounced, provided that this renunciation does not run counter to the interests of society and to public order, or is prejudicial to a third party, nor is prohibited by other laws.
- The interest of society prevail over private interests.
- Judges may not suspend, delay, or deny the administration of justice without being liable for such action.
- Competence, forms of procedure, and means of defense are governed by the law where the action is taken.
The law of the Judicial Branch regulates the membership and powers of that branch. In this respect, it regulates the membership of courts, the chairmanship of the Judicial Branch, Supreme Court of Justice, the Court of Appeals, judges of first instance, justices of the peace, secretaries of the courts, decisions of the Supreme Court of Justice and of other courts, complementary provisions on the matter, terms and periods, cases, judicial decisions, judgments and their execution, timely application of laws, and communications, decrees, and penalties. Furthermore, it regulates documents from abroad, and lawyers and judicial representatives.8
C. Appeals for Amparo, Habeas Corpus, and of Unconstitutionality
1. As already stated, the Guatemalan Constitution contains specific provisions on the aforementioned appeals, and a law was enacted in this regard on the basis of these provisions, which is contained in Decree Nº 8 of the Constituent Assembly of May 3, 1966. The preamble of this law sets forth the following considerations as the basis thereof: “that in accordance with the principles on which the democratic organization of Guatemala is based, standards and appeals should exist to guarantee due respect to civil liberties, the rights of the individual, and the fundamental principles governing the life of a country, in order to ensure the rule of law;” and “that for this purpose a law should be issued adequately developing the principles of the basis of amparo as a guarantee of due process and habeas corpus as a guarantee of liberty, within a consistent system that ensures the supremacy of the constitution in all legal acts.”
2. As previously stated, the Constitution of the Republic contains provisions referring to amparo. For its part, the aforementioned law establishes that every person has the right to petition for amparo in the following cases:
1. In order that his enjoyment of the rights and guarantees established by the Constitution or any other law may be maintained or restored.
2. In specific cases, to obtain a ruling that a law, regulation, or decision, or act of authority is not binding on the petitioner because it contravenes or restricts any of the rights guaranteed by the Constitution or recognized by any other law.
3. In specific cases, to obtain a ruling that an order or resolution that is not truly a legislative act of the Congress does not apply to the petitioner because it violates a constitutional right.
4. When the authority of any jurisdiction issues a regulation, agreement, or decision of any nature that abuses its authority or exceeds its legal powers, even when it lacks them or exercises them in such a way that the grievance caused or that may be cause to the petitioner cannot be remedied by any other legal means of defense.
5. When administrative action requires the person affected to comply with unreasonable or illegal requirements, measures, or activities.
6. When the petitions and legal procedures before the administrative authorities are not resolved within the period established by law, or if no such term is established, within thirty days after the particular proceeding has been exhausted.
7. In electoral matters, in keeping with the provisions established in the Constitution and in the law.
8. Against infractions of the procedure taken by the Supreme Court of Justice in matters submitted to it for consideration, provided that no final judgment has been issued and no other appeal is in order, of if this is exhausted, the violation persists.
Regarding competence concerning this appeal, the Tribunal Extraordinario de Amparo (The Special Court on Amparo) takes cognizance of such appeals as are appropriate against the Supreme Court of Justice or any of its members, against the Council of State, and against the Congress for acts and decisions that are not purely of a legislative nature. The Supreme Court of Justice in plenary takes cognizance of the complaints filed against the President and Vice President of the Republic and the same court or appropriate chamber considers those filed against Minister of State or vice ministers; against the civil, penal, labor and military courts of the Court of Appeals, Office of the Comptroller of the Currency, and the Contentious-Administrative Court or any of its members; against the Attorney General of the nation; and against diplomatic representatives of any category.
Moreover, the law prescribes appropriate competence to consider appeals for amparo to the Court of Appeals of common law and to judges of the first instance of this law in their respective jurisdictions.
The appeal for amparo must be lodged in writing, filling the appropriate legal requirements, and judges and courts must process them in the same court in which they were presented. Moreover, the aforementioned law describes the effects produced by the declaration of justification for the appeal for amparo and, moreover, establishes that the petition for appeal may be lodged against the judgments of the courts of amparo and against the ruling that deny or grant provisional amparo. The law adds that when the special court on amparo and the Supreme Court or appropriate chamber considers an appeal for amparo there shall be no recourse against their decision other than that of the personal liability of their members. It also regulates the cases in which the appeal for amparo is inappropriate and general provisions on different aspects of this matter.
3. The appeal for habeas corpus, based on the Constitution, is regulated by this law, which establishes that any person who finds himself illegally imprisoned, detained, or restrained in any other way in the enjoyment of his individual liberty, who is threatened by the loss of it, or suffers grievances even when his imprisonment or detention is based on law “has the right to request an immediate hearing before the courts of justice, whether for the purpose of obtaining the restitution of his liberty, for bringing the grievances to an end, or for terminating the constraint to which he is subject.”
The proceeding of a personal hearing may be initiated before any court, which shall have the power to order the urgent measures required by the case and refer the matter without delay, with a report of action taken, to the competent court. The appeal may be entered by the injured party or by any other person in writing, by telephone, or orally, with no need to accredit representation to anyone and with no requirements of any kind. The proceeding may also be initiated or demanded officially when the courts of justice in any way learn that some person is in the circumstances indicated, that is, in circumstances that give rise to the entering of this appeal.
The competence of the courts with regard to this appeal, is governed by the provisions of Chapter II of the law, that is, the competence to which we referred in analyzing the appeal for amparo.
With reference to the appeal for habeas corpus, the courts and the executor, if there is one, may request the aid of the police force for compliance with its decisions, and the Executive must provide it immediately, under the responsibility prescribed by the Penal Code. The law establishes that authorities who order the concealment of the detained person or who refuse to present him to the proper court, or who in any other way frustrate the guarantee of habeas corpus, as well as agents who carry out such an order, shall be considered to have committed the crime of abduction, shall be separated from their posts and punished in accordance with the law. It also provides that when a person is detained because of safety measures taken in application of the law on public order, the hearing shall be held in the place where he is detained and shall be restricted to determining treatment of the person detained.
4. In accordance with the Guatemalan juridical system, courts of justice must always observe the principle that the Constitution prevails over any law or international treaty. Before judgment is passed in specific cases in any instance and in cassation, the parties may bring up the unconstitutionality of the law in whole or in part, and the court must give an opinion in this respect.
The complaint of unconstitutionality is based on the provisions of the basic text referred to earlier. In accordance with the law already alluded to, the Court on Constitutionality is made up in the form established by the Constitution and already referred to in this chapter. This court is responsible for considering complaints entered against laws or general governmental orders on the grounds that they are unconstitutional in whole or in part.
As already stated, this complaint may be entered by the Council of State, the Lawyer's Association, the Public Ministry, and by any person or entity affected directly by the unconstitutionality of the law or governmental provision challenged, with the assistance of ten practicing lawyers. The court may order suspension of the law or governmental order if the unconstitutionality is serious and may cause irreparable damage. As has already been said, if the decision declares that a law or general governmental order is wholly unconstitutional, it shall be without effect, and if only partially unconstitutional, that part is thereby without effect. In both cases, the effect ceases on the day following publication of the decision in the Diario Oficial.
D. The administration of justice in practice
1. The political and social upheaval prevailing in Guatemala has given rise to violations of the rights to justice and due process, involving the responsibility of the government of that country for acts of commission or omission.
The widespread violence disturbing this country has created a climate of terror and repression, the effects of which directly affect compliance with the laws and the administration of justice.
2. The Guatemalan legal code, as already explained, is broad and exhaustive in its establishment of a structure to regulate guarantees for the exercise of this right. The Constitution of the Republic and the laws through which it evolves clearly provide for the legal regulation of justice and due process, so that this right may be fully observed.
Notwithstanding, in practice the administration of justice does not really correspond to the provisions in the legal system on the matter, especially with regard to the protection of fundamental human rights. The independence of the judicial power, constitutionally proclaimed, does not function in practice, and this has produced lack of confidence in the actions of the Judicial Branch.
These circumstances have given rise to arbitrary action and repression, prejudicial to the administration of justice and the effect of due process. Examples of this are the murders of lawyers and judges; the failure of authorities to investigate these crimes; the ineffectiveness of the legal remedies contained in the legal code; and indications that the police force has undertaken organized actions to break up an y activities giving evidence of opposition to government sectors.
The Constitution gives the Lawyer's Association an important role in the function of guaranteeing the constitutionality of the laws. In this respect, it gives it the power to enter the complaint of unconstitutionality, at the decision of its general assembly, but there is no evidence that this is actually done or that this power produces effective results.9
E. The case of lawyers and judges
1. In the preceding paragraph and in the chapter on the Right to Life, it has been stated that one of the consequences produced by the climate of violence and repression prevailing in Guatemala and affecting the observance of the right to justice and due process is the murder of judges and lawyers.
In addition to criminal acts, this dramatic situation also covers the disappearance, kidnapping, holding of hostages, and persecution of practicing members of the legal profession and officers, with the purpose of obstructing compliance with the law and application of justice and of aggravating present conditions of panic, terror, and uncertainty.
2. The Commission has received information and denunciations on acts such as those mentioned. One example of that is the denunciation presented to the Commission on March 30, 1981 by the Center for the Independence of Judges and Lawyers, with headquarters in Geneva. The Commission proceeded to open the case and to process this denunciation, the pertinent parts of which are the following:
We have been receiving news of acts of violence against members of the legal profession in Guatemala. A short time ago, we received a report on the disappearance or murder of 15 lawyers, judges, and members of law schools during the years 1980 and 1981. The number of those murdered or who have vanished between January 1980 and January 1981 totals 35, representing a drastic growth in the number of such incidents over preceding years and almost without precedent in Latin America.
This seriously affects the capacity of lawyers and judges to fulfill their professional commitments, independently and without fear, and also the right of citizens to effective vindication of their legal rights within the judicial system.
One interesting aspect of this eruption of violence is the type of professional activity of the victims.
Included are lawyers of different types, but those practicing labor law and working in the “Bufete Popular” (Legal Aid Office for the People) of the university and representing the campesinos and Indian organizations have been the most affected. In several cases, there are indications that the judges were subject to violence because of their professional activities. The murders of judges Marroquín, Villagrán, and Valdéz in September 1980 are examples of this. They suggest a premeditated effort by those responsible to deprive certain sectors of society of effectively having access to the rights guaranteed by the laws of Guatemala, and to discourage the impartial exercise of judicial powers.
As inferred from the following cases, these murders and disappearances have generally occurred during the day, almost always in very open places, and the methods used are almost always the same. From what we have been able to determine, in none of the cases have the persons responsible been brought to justice. This give the impression that the safety forces have consented to or collaborated with the violence.
Following are details of the deaths and disappearances:
Jaime Rafael Marroquín Barrido. Judge of the Criminal Court of Guatemala City. Murdered on September 9, 1980, at 2:45 by two men on a motorcycle, while he was walking through the capital. It has been alleged that the judge was trying certain politically-sensitive cases and that he had received several death threats. Apparently, he had no political affiliation nor was he involved in any activities of that nature.
Cristóbal Arnulfo Villagrán Diéguez. Legal assistant to Judge Marroquín, murdered in that same attack.
Héctor Augusto Valdez Díaz. Judge, 34 years of age, member of the same court as Marroquín. He was murdered on September 16, 1980, on the same day that he was assigned to handle Marroquín's cases. Judge Valdez was killed by machine gun by several men riding in cars and bicycles while he was driving to work at 7:00 a.m.
Fulgencio Napoleón Díaz Herrera. Distinguished judge in the city of Huehuetenango, was similarly murdered on September 16, 1980. He was shot by two men who came to his office one night, just as he was closing up.
César Augusto Saltallana Hernández. Justice of the Peace of Escuintla, was kidnapped on September 24, 1980 by a group of armed men.
Ricardo Galindo Gallardo. Lawyers. It was reported that he had vanished following his arrival in Guatemala City on a flight from Panama on October 6, 1980. There are no further details on the incident.
Pablo Emilio Valle de la Pena. Prominent labor lawyer, was murdered on October 10, 1980. He was machine gunned from a passing car when he was driving in a suburb of Guatemala City.
Rodolfo Montoya Guzmán. Lawyers, who worked in the legal aid clinic of the branch office in Escuintla of the University of San Carlos. Was murdered by machine gun at his home, in the presence of his wife and three children on October 17, 1980.
Rigoberto Asoche. Justice of the Peace of San José, Escuintla, was found strangled on November 16, 1980.
Leonel Roldán Salguero. Social scientist, 42 years of age, professor in the School of Law of the University of San José, was kidnapped on November 17, 1980 while driving in the capital. His wife, who accompanied him, was murdered by machine gun during the incident. Eighteen days later, Professor Roldán's body was found on a road several kilometers from the capital. The body showed multiple gunshot wounds and signs of torture.
Miguel Angel Curruchiche Gómez. Lawyers, with offices in Chimaltenango and Guatemala City, was murdered by machine gun at 1:00 p.m. on November 20, 1980 while driving through the capital. His 14-year old son and one other person accompanying him also died in the attack. Mr. Curruchiche was the lawyer representing an Indian association in Comalapa.
Gilberto Jiménez Gutiérrez. General Supervisor of the Courts, was murdered in Guatemala City on December 12, 1980. Before assuming this position, he had a private law practice, was judge in a civil court, and served as confidential secretary to the former President of the Supreme Court of Guatemala. At the time of his murder, he had been suspended for some time from his duties as General Supervisor, for reasons that were not made public. When driving home for lunch at 1:00 p.m., he was machine gunned by a group of men traveling in a station wagon. His chauffeur also died in the attack.
Augusto Sac Necancoj. Lawyer of 70 years, murdered in Quetzaltenango on December 16, 1980. Upon returning to this office from his house, his car was intercepted on the highway, and he was dragged out of his car and shot. Mr. Necancoj was a member of the Revolutionary Party, which forms part of the government coalition, but he had not been politically active in recent years. He was a member of the Association of Indian Professionals.
Saúl Najarro Hernández. Lawyer, was murdered upon reaching his office in the center of the capital on the morning on January 21, 1981. Witnesses indicated that his assailants tried to kidnap him, but he resisted and was shot nine times. At the time of his murder, Mr. Najarro, who had been a judge, was working on several important cases. He had received death threats, and according to newspaper articles, had requested police protection.
Abel Lemus Véliz. Lawyer, 45 years of age, was murdered on January 27, 1981. While driving in the capital in the middle of the day, he was shot by assailants in a passing vehicle. A lawyer who was active in civil and penal law, Mr. Lemus was also secretary for worker and campesino affairs of the Democratic Social Party FUR.
Other acts of violence include the attempt to kidnap the lawyer Fredy Rolando Ríos Cifuentes in Mazatenango on or about November 7, 1980; the wounding of the Justice of the Peace, Oscar Armando Gómez Figueroa of Chichicastenango on or about December 28, 1980; and the attempted murder of Eliézer Nehemías Cifuentes y Cifuentes en Chimaltenango at the end of 1980.
3. As eloquent testimony of the way in which justice operates in Guatemala,
the Commission wishes to bring to mind the repeated efforts taken by Dr. Francisco
Villagrán Kramer, in his position as Vice President of the Republic, to see
to compliance with the law through the resources provided for in the legal code,
and measures were taken for the effective functioning of the right to justice
and to due process.10
1 Article 8 of the American Convention on Human Rights reads as follows: “Right to a Fair Trial. 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of this rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b) prior notification in detail to the accused of the charges against him; c) adequate time and means for the preparation of this defense; d) the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e) the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f) the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g) the right not to be compelled to be a witness against himself or to plead guilty; and h) the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.” Article 9 reads as follows: “Freedom from Ex Post Facto Laws. No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.” Article 10 reads as follows: “Right to Compensation. Every person has the right to be compensated in accordance with the law in the event he has been sentenced by a final judgment through a miscarriage of justice.” Article 24 of the Convention reads as follows: “Right to Equal Protection. All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.” And Article 25 reads as follows: “Right to Judicial Protection. 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: a) to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state; b) to develop the possibilities of judicial remedy; and c) to ensure that the competent authorities shall enforce such remedies when granted.”
2 Articles 43, 48, 50, 53 and 62 of the Constitution.
3 Articles 240, 241, 242, 245, 246 and 247 of the Constitution.
4 Articles 249, 251 and 252 of the Constitution.
5 Articles 253, 254, 255, 256, 257, and 259 of the Constitution.
6 Articles 260 of the Constitution.
7 Articles 262, 263, 264, 265 of the Constitution.
8 Article 1 and those following of the Judicial Body.
9 Referring to this point and to the procedure for the declaration of unconstitutionality, the following observations are made, among others, in the report of the mission sent to Guatemala by the International Commission of Jurists in June 1979: “Although this is a complete legal instrument for the protection of the rights established in the Constitution, the use of it is affected by political considerations. For example, although amparo is invoked frequently, the decisions are taken on the basis of technicalities and not on the real fundamentals of the case; moreover, the procedure is not considered appropriate with regard to high officials of government. The Lawyer's Association is in a position of special responsibility, by virtue of Decree Nº 8 of the Constituent Assembly and the Constitution. It embraces all of the two thousand lawyers in the country and obtain its income from a stamp tax on authorization of documents and from the dues paid by its members. It hears the complaints of the public against lawyers and proposes names for members of juries in cases of trials for slander. Since a great number of victims of political murders have been lawyers, the association has condemned the fact that none of those responsible has been caught; however, so far it has taken no steps to investigate the murders or to demand that the government investigate them.”
10 Case Nº 7789. The pertinent parts were transmitted to the Government of Guatemala by the Commission in its communication of April 27, 1981.
On May 30, 1980, the then Vice President Villagrán Kramer addressed the Attorney General of the nation in the following terms: “I am sending you herewith a clipping from the newspaper Prensa Libre for May 10 of this year, in which the Mayor of Escuintla, Marco Tulio Collado Pardo, reports on a number of acts of intimidation, which had already been reported in other newspaper. Since this concerns a publicly elected official, and it is stated in the newspaper report itself that the competent authorities of Escuintla have taken no action in this case, I believe that this published denunciation might give the public Ministry a basis on which to take such legal action as it deems appropriate in defense of the Mayor. In any case, I think that the Mayor of Escuintla might provide further information on the matter.”
On June 20, 1980, he addressed the President of the Supreme Court in the following terms: “This is to express to you and, through you, to the Honorable Supreme Court of Justice, my deep concern at the situation of a university student, Víctor Valverth, whose defense attorney has had to give up his defense, and whose family is having trouble in finding a substitute. Under Article 43 of the Constitution, the state guarantees as rights inherent in the human person: 'life, corporeal integrity, dignity, personal security, and that of his property.' The Constitution also establishes the guarantee of legal due process, which entails the right to defense in a trial. I am bringing this matter to your attention, in view of the press reports regarding it, and because I believe that the Supreme Court should ensure correctness in due process and defense.
A few days after, on June 24, 1980, he addressed the President of the Judicial Branch as follows: “The Central Nacional de Trabajadores (CNT9 published a document in today's La Prensa in which it reports to the public on the events that occurred at its headquarters on June 21 at 3:30 p.m. and in point IV demands: 'That the physical integrity of our colleagues be respected, and that they be turned over to the courts of justice immediately and later be freed.' In view of the seriousness of the denunciation and the juridical importance of the petition within a code of law, I think it appropriate for the government to take action ex officio, in accordance with Article 77 of Decree Nº 8 of the Constituent Assembly, which established personal appearance. I am enclosing the text of the publication and, since his falls within the competence of the Judicial Branch, I shall appreciate it if you will order the taking of whatever measures and steps that are appropriate. I don't doubt that as President of the Judicial Branch, as a lawyer, and as a citizen, you will share with me, as Vice President, lawyer and citizen, the desire that the inhabitants of our nation enjoy to the fullest the rights and guarantees established by the Constitution in their behalf."
On July 3, 1980, he again addressed the President of the Judicial Branch as follows: “In reading today in Prensa Libre the text of the statement that you sent to the International Conference of Appellate Judges, held in Australia, I consider appropriate to refer to the case of the trade union leaders. Of the CNT, which has been made known to you. I received a number of cables from abroad expressing concern for the safety of these trade union leaders. Enclosed are photocopies of the messages received. In the light of this text, you can appreciate the impact that these events have made abroad. In keeping with Article 77 of the law on amparo, habeas corpus, and constitutionality, the courts of justice should act ex officio, because of the information they have received through the material published in La Prensa by the CNT itself, an issue of which I sent you. Under Article 78 of that same law, all judges and magistrates of the Republic must observe the principle of personal appearance in their jurisdictions, and they are subject to the effects established by this principle. It might be said that the current state of affairs of the law is complicated and difficult. But we must also recognize that the Judicial Branch has to make use of all instruments and mechanisms within its power to ensure the authority of the law to the greatest extent possible. In taking office as Vice President of the Republic, I took an oath to uphold the Constitution of the land and to see that it be upheld. It is in compliance with that duty that I address you, as President of the Judicial Branch and of the Supreme Court of Justice, to ask that you take whatever steps are appropriate within the legal system of Guatemala.”