RIGHT TO PERSONAL LIBERTY, SECURITY AND INTEGRITY1
A. General Considerations
1. The Fundamental Statute of Government which provisionally governs Guatemala states that “no one can be arrested except by warrant from a competent authority, for a crime or offense, or as a security measure, except for the case of in flagrante delicto.”2 Moreover, the same Statute establishes that no prisoner may be subject to physical or moral torture, cruel treatment, infamous punishment or actions, pressure or coercion, nor be forced to do harmful work or work incompatible with his physical constitution or his human dignity, adding that: “Public officers or employees giving orders against the provisions contained herein and the subordinates executing them, will be immediately and definitively disqualified from occupying any public position or office and will receive the corresponding legal sanction. Heads of prisons and places of detention shall be responsible as perpetrators thereof, for any act of torture, cruel treatment or infamous punishment inflicted on criminals or inmates in the establishment of which they are in charge. And even when a subordinate appears to be directly responsible, they will be punished as accomplices, unless immediately after learning of the incident, they took the necessary steps to avoid it or stop it, and proposed legal action against the perpetrators. A security guard making improper use of arms against a convict or arrested person, will be responsible in accordance with Criminal Law. The action derived from the crime committed under these circumstances is not subject to any Statute of limitations.3
2. The Commission has considered it pertinent to analyze jointly in this Chapter the rights to personal liberty, security and integrity. From the information in its possession emerges an intimate connection between arrests and illegal writs which generally occur immediately after the arrest during the interrogation to which the accused is subjected. In particular, the Commission will study in this chapter the force of habeas corpus or writ of personal appearance in Guatemala, to guard personal liberty and security and the situation with respect to irregular detentions or kidnappings which have frequently resulted in the forced disappearances of persons.
B. Writ of Habeas Corpus or Personal Appearance
1. Article 23, paragraph 19 of the Fundamental Statute of Government has recognized the “Writ of habeas corpus or personal appearance with the purpose of establishing the treatment of those arrested.” This provision has added that “Judges and Courts hearing those appeals will limit themselves to order the appearance of the accused and decree his freedom if they were illegally arrested.”
2. In fact, for much of the time covered by this report, the writ of habeas corpus or personal appearance has not been in force due to the state of siege established in Guatemala from July 1, 1982, to March 23, 1983.
3. Even without a state of siege, this writ, in light of Article 23, paragraph 20 of the Fundamental Statute of Government, can be limited by the security measures dictated by the Government.
4. During the meeting the Commission had with the President of the Judicial Branch, Dr. Ricardo Sagastume Vidaurre, the magistrate stated to the Commission, with regard to the force and effectiveness of the writ of habeas corpus, that:
This was not normally limited. At the present time, due to the establishment of the state of siege, that guarantee has been suspended. In accordance with the Fundamental Political Statute of Government, habeas corpus is one of the guarantees established by Article 23 of that Statute and that due to the law which established the state of siege, it was suspended. Nevertheless, the Supreme Court of Justice, considering that paragraph 20 states that the individual rights and guarantees contained in the previous paragraphs of that Article do not imply the exclusion of any other rights not specified which are inherent to the human person, and that the exercise of all the rights, the enjoyment of all the individual guarantees set forth in this article, have as their only limit the security measures dictated by the government in emergency situations like the present one. In other words, analyzing the spirit of this article, the Court has considered that although paragraph 19, which establishes habeas corpus, is suspended, paragraph 16 which establishes certain guarantees for all accused and for convicts, is not.
The President of the Judicial Branch added that since paragraph 16 or Article 23 was not suspended by the law which established the state of siege, the Court was ensuring that the liberty and integrity of persons was being respected not based on paragraph 19, which is habeas corpus and which is suspended, but based on paragraph 16 of Article 23. Dr. Sagastume Vidaurre added that the result was practically the same, since what was being sought was the absolute physical, mental and psychological integrity of the accused. With respect to the consequences and limitations that the state of siege had imposed on his Court, Dr. Sagastume stated:
Practically, we have felt absolutely nothing. I would say that the only immediate and noticeable consequence is the suspension of the writ of personal appearance, bus as I say, the Court has not processed those appeals as writ of appearance but simply as an inquiry as to the status of the accused. The effect has been the same because what the appearance writ primarily pursues is to establish the health and physical status, the integrity of the accused, and that is obtained under that guarantee of paragraph 16, Article 23. So that other than that the Court has not felt any other limitations.
5. In spite of what the President of the Judicial Branch expressed, the Commission knows of no single case in which, through the writ of habeas corpus or the application of paragraph 16, Article 23 of the Fundamental Statute, the Courts of Justice in Guatemala have given amparo to claims submitted by relatives of the persons accused, missing and who later on turned up in the hands of the Government of Guatemala. On the contrary, the Commission has received several complaints that the Courts of Justice in Guatemala, in receiving appeals habeas corpus have either denied them or have declared themselves incompetent to process them because the invoked paragraph 16, in which they are based, was also suspended.
6. Among other cases denounced to this Commission, case Nº 8010 of Dr. Juan José Hurtado should be cited. His kidnapping and disappearance moved world public opinion. The authorities originally denied having participated or having knowledge of his whereabouts. Yet, later, President Ríos Montt himself acknowledged that he had been arrested by government forces and that he was in jail. The group of lawyers which assisted in Dr. Hurtado's defense, many of them university law professors, stated that the defense refrained from presenting the writ of personal appearance. Dr. Hurtado's incomunication was not lifted even after General Ríos Montt himself recognized that he had been arrested.
7. A similar situation confronted the family and legal counsel of Dr. Carlos Padilla Galvez, case Nº 8078, with the difference that the Inter-American Commission on Human Rights expressed its direct interest in the situation of Dr. Padilla during the on-site visit to Guatemala. On that occasion, the IACHR asked the then Minister of National Defense, General Oscar Humberto Mejía Víctores, in his own office, that an effort be made to determine the whereabouts of Dr. Padilla. The Minister stated to the Commission that he had no knowledge of the matter and that he had probably been kidnapped by the guerillas. Two days later, General Mejía himself invited the members of the Commission to his office and at that time in addition to discussing another case, he said that Dr. Padilla was detained at the Second Police Corps, self-abducted, that is, in jail because he had requested that he be arrested in order to defend himself from the guerrillas who were seeking to kill him, and that he could be visited taking the necessary security precautions.
The Commission visited Dr. Padilla in person on that same day and heard from his own mouth the denial of what the Defense Minister had said, affirming that he was being held against his will and had not placed himself in the custody of the security forces of the Government.
The same day that this took place, the following ads appeared on the newspapers of Guatemala:
Guatemala, September 22, 1982
COMMISSION ON HUMAN RIGHTS
Knowing of our government’s consent to your visit to our country we request your efforts in determining the whereabouts of
DOCTOR CARLOS RENÉ PADILLA GALVEZ
Who was kidnapped from the Solola Hospital on August 26, 1982.
Family, colleagues and friends.
Medical, Paramedical and Administrative Personnel of the National Hospital “Juan de Dios Rodas” de Solola;
Medical Personnel of the IGSS Unit, Annexed to the Hospital:
By this channel join the family and entities interested in the prompt return of
DR. CARLOS RENÉ PADILLA GALVEZ
DIRECTOR of this hospital center, and beg those who have him in custody to respect his human integrity so that he may rejoin his family and his professional activities since, as a humanitarian doctor, he has been a prominent person.
Solola, September of 1982
8. In addition, the Commission knows that the family of the four Guatemalan citizens executed in the first firing squad shootings carried out in Guatemala under the government of General Efrain Ríos Montt, on September 18, 1982, Julio César Vásquez Juarez, Julio Hernández Perdomo, Marcelino Marroquín and Jaime de la Rosa Rodríguez (Case Nº 8094), presented the habeas corpus writ when they did not yet know what their sentences would be, with the only goal of learning of their whereabouts, and that the same was denied on the argument that Decree Law 46-82 in suspending certain guarantees had suspended the writ of personal appearance.
9. In the same manner, the Commission has been informed that writs of habeas corpus were denied to Luis Gustavo Marroquín (Case Nº 8075) and to Ana Noemi Saclxot Aguilar (Case Nº 8070). The judge of the Ninth Criminal Court told the latter that due to the then existing state of siege he could not even admit in court the mentioned writ.
10. The examples presented indicate the lack of effectiveness of habeas corpus or recourse to judicial hearing and confirm the impunity with which the security agencies of the State operate in illegally arresting persons, creating thereby an alarming insecurity. This situation will be analyzed below.
C. Kidnappings and Disappearances
1. The Commission has received complaints that, although to a lesser degree than during the situation which prevailed before March 23, 1982, in Guatemala, there are still illegal arrests, abductions, and disappearances that can be attributed to the government’s security forces.
2. The method used in the perpetration of those acts is the same that was used before the coup d’etat of March of 1982. The victims are forcibly abducted from their homes, places of work or while traveling on public roads.
3. These irregular arrests or abductions are generally carried out by groups of heavily armed individuals, who identify themselves as belonging to one of the several investigative or security units, but no one is informed of the reasons for their arrest or to what centers they may be taken.
These groups operate openly in public and generally travel in vehicles with darkened windows and no identification plates.
4. Some of the victims thus arrested disappear without a trace, as if they faded away without anyone ever knowing again of their whereabouts as in the cases cited below; other times, as it happened in the cases of Drs. Hurtado and Padilla, after several days the authorities acknowledge having detained them, despite originally denying their arrests.
5. Among the many cases of disappearances denounced to the Commission and of whose hereabouts nothing is known until this date, is the case of Mrs. Francisca Graciela Morales de Samayoa together with her children José Ramiro, Gloria Iris and Astrid Maritza, as well as her domestic and her youngest son of 4 years of age, an act perpetrated by heavily armed men on the morning of Saturday, September 11, 1982. Mrs. Samayoa, who for 27 years and up until the time of her abduction was Treasury Officer at the School of Economics at the University of San Carlos, and the other mentioned persons were taken by force from their home. All their belongings were also taken in a truck with no identification plates. The domestic worker and her son were set free days later but not so Mrs. Samayoa and her children whose whereabouts, in spite of the numerous efforts made, have not been determined.
The IACHR opened case Nº 8065 relating to the situation of Mrs. Samayoa and her children and sent the pertinent reports of the complaint to the Government of Guatemala through a note dated November 17, 1982. They read as follows:
José Ramiro Samayoa (age 20), Gloria Iris Samayoa (age 18) and Astrid Maritza Samayoa (age 16) and their mother Mrs. Graciela Morales Herrera de Samayoa (age 52), Treasurer of the School of Economics of the University of San Carlos of Guatemala for 27 years, were abducted on Saturday, September 11, of the present year, at noon in Guatemala City, by armed men, in cars with no plates, taking all their belongings.
The purpose of the foregoing communication is to request your kind and prompt intervention before the highest authorities in Guatemala, so that these children and their mother will not be subjected to mistreatment at the hands of their kidnappers and instead be set free, or undergo judicial proceedings if there is legitimate evidence for it.
Several institutions, individuals and relatives have written to the President of Guatemala, General Efrain Ríos Montt, in the hopes of obtaining respect for the integrity and life of these minors and their mother.
On November 24, 1982, the Government of Guatemala answered in the following manner:
CASE 8065. MRS. GRACIELA MORALES HERRERA DE SAMAYOA AND HER CHILDREN JOSÉ RAMIRO, GLORIA IRIS, ASTRID MARTIZA SAMAYOA MORALES, are not arrested nor have they been captured by the National Police. Writs of habeas corpus have been submitted on their behalf before the Honorable Supreme Court of Justice. Their disappearance is being investigated. At the request of interested parties Dr. Verny Anibal Samayoa López and the Employees Association of the Central American Bank for Economic Integration, in Tegucigalpa, Honduras, were informed by radiogram via GUATEL.
In a meeting held with the Ministers of Defense and Interior during its on-site visit, members of the Commission inquired about the case of Mrs. Samayoa to which both Ministers answered that they had no knowledge of the case. The Minister of Defense added that the only thing he knew was that the aforementioned woman was the wife of Verny Anibal Samayoa López, a “known subversive.”
According to its rules, the Commission continues work on case Nº 8065.
6. Other examples of recent disappearances are: Case Nº 8047, relating to Hugo Rolando Moran Ramìrez, who was kidnapped by men who put him in a car and took him to an unknown destination on September 7, 1982, at 1:30 p.m., at the University of San Carlos of Guatemala, when he was leaving the building of the Research and Educational Betterment Institute (IIME), where he had been working for approximately four years. At that time, during office hours, he was accompanied by Dr. Josefina Antillon Milla, chief of IIME, and Dr. María Reinhard, in charge of Public Relations for the IIME. There has been no information after the kidnapping. Nothing is known of his whereabouts or the motive for the kidnapping.
7. Case Nº 8066, involving Axel Raul Lemus García, 20 years of age, sixth year student in Education at the Central School for boys, who was captured by government security forces on Thursday, June 3, 1982, at about 11:30 a.m., near the Girls Institute INCA (3rd Avenue and 2nd Street, Zone 1); this incident was seen by a large number of people, among them, members of the communications media, as several publications issued days later confirmed it.
8. In case Nº 8075, relating to Luis Gustavo Marroquín, it was alleged that he was kidnapped on Monday, August 9, 1982, at 7:50 a.m., from the parking lot at the National Bank for Agricultural Development “BANDESA”, by several men dressed in civilian clothes, heavily armed, who traveled in two vehicles (a red microbus with shaded windows and a car also with darkened windows, both without identification plates). Mr. Marroquín worked at “BANDESA” and his arrest took place when he was arriving at the bank. To date there is no knowledge of this whereabouts or the reason for his arrest.
9. In case Nº 8077 relating to Marco Vinicio Calderón Cruz, Civil Engineering student, sixth Semester at the University of San Carlos, 21 years of age, Physical Education Professor and Basketball Referee, it is alleged that he was kidnapped by three unknown armed men who put him in a small suburban station wagon, red, with shaded windows and no plates, the night of Tuesday, July 20, 1982, at approximately 10:00 p.m., on 18th Street between 9th and 10th Avenue, when after refereeing a game of basketball in the Olympic gymnasium “Teodoro Palacios Flores”, he was escorting a colleague to her car.
10. In case Nº 9030, relating to Julian Revolorio and Raymundo Pérez, members of the Advisory Council of the Universal Textiles Factory Labor Union, it is affirmed that they were kidnapped by government security forces in the capital city, taking them in a vehicle with license plates P-791949, on January 11, 1983.
11. In case Nº 9042, relating to Maximina Valdez, it is claimed that on September 9, 1982, at around 12:00 noon, in the Old Guard Market, located on 3rd Avenue, Zone 11, of the city of Guatemala, men heavily armed and in civilian clothes, arrested a young lady and Mrs. Maximina Valdez who was approaching the stand where that young lady was. She is still missing. She was abducted in front of a crowd.
12. Case Nº 9081, relates to Dr. Yolanda Urizar de Aguilar, a lawyer who was active in student politics and advised labor and peasant unions. In returning to Guatemala for the purpose of seeking protection under the amnesty decreed by the new government, Mrs. Aguilar was arrested by the security forces, and, according to information received by the Commission, moved to the Berlin military detachment located between the Municipality of Caotepeque and the department capital of Retalhuleu. From that moment on, nothing has been known of her whereabouts.
13. Likewise, with regard to these disappearances, the Commission wishes to express its especially deep concern for the disappearances of people under age, generally high school students, whom the government security agencies, considering them connected to the subversive movements, have kidnapped without anyone’s knowledge of their whereabouts. According to a Guatemalan newspaper, in the first months of the government of General Ríos Montt, 32 secondary students from different educational centers in the city of Guatemala and the interior of the Republic were abducted and disappeared, with that source pointing out that, “in most cases, the students have been violently taken out of their homes while their parents look on in astonishment. The perpetrators of the abductions, heavily armed men who travel in vehicles similar to those used by the police, have threatened the parents if they denounce the incidents.”4
14. Since August 8, 1983, the Commission has continued to receive denunciations stating that the abductions of individuals, which therefore increase the number of missing persons, conducted by the uniformed security forces in automobiles and other military vehicles have continued to be carried out in the same manner as during the government of General Romeo Lucas García and Efrain Ríos Montt.
Case Nº 9179 concerning Jorge Alberto Rosel Paz, an agricultural engineer, states that:
On Friday the 12th of this month, the vehicle JORGE ALBERTO ROSAL PAZ was driving on the highway to the Atlantic was followed by a motorcycle with two men. At the town called “Lo de Pinto”, between Teculatan and Zacapa, a jeep with armed men stopped and violently abducted him. This violent act occurred four days after the change in government, contradicting the statements on human rights and basic freedoms and on the country’s return to democratic life. Jorge Alberto Rosal Paz has not returned home since the day in reference, and neither has it been possible to find him at the known detention centers or in the hospitals in the Capital or Zapaca. For this reason there is fear for his personal security and physical safety.
D. The Right to Personal Security and Integrity in practice
1. Despite the strict terms of the Fundamental Statute, where torture and cruel punishment are categorically prohibited,5 some of the abducted individuals remain incommunicado in the hands of the police for long periods of time. They are subjected to interrogations which, according to complaints received by the Commission, are conducted violently accompanied by cruel and inhumane punishment.
2. In some cases, once confessions have been extracted through torture, as reported to the Commission, the accused are placed before ordinary courts or Courts of Special Jurisdiction, depending on the crimes they are charged with. When the questioners arrive at the doubtless conclusion that the accused are innocent of the offenses they are being charged with, some of the accused are set free but required by the authorities not to mention anything of what has taken place while in prison under threat of being jailed again.
3. During the course of the visit the IACHR made to the prison called Second Corps of Police, the Commission interviewed several of the persons that were jailed there.
In spite of their initial reticence to make statements for fear of reprisals, some of the convicts finally gave their testimony, separately, without being heard by others.
4. They all coincided in that before being placed before the court trying their case they had all been tortured by being placed in solitary confinement and then interrogated using the method called “the inner tube hood.” This consists of placing a sort of rubber hood covering the whole head down to the neck, and then pouring alcohol into it while the feet and hands are tied, producing suffocation to the point of asphyxiation. The procedure was repeated time after time, day after day, until a confession was obtained on the basis of which they were sent to court.
5. This practice is all the more serious because based on the confession thus obtained, the individual is transferred to the Courts of Special Jurisdiction, which in exercise of the power attributed to them by the decree which created them, can sentence the accused to death.
6. This is the case of Marco Antonio González, a Honduran citizen who entered Guatemala with a local permit through the border point at Aguas Caliente and was later captured by the Army of Guatemala. When the Commission interviewed him at the Second Police Corps, Mr. González had been in solitary confinement for 25 days; he testified to having been tortured as described above and was tried by the Courts of Special Jurisdiction, accused of distributing subversive propaganda, without the benefit of a defense lawyer. Although he protested his innocence, Mr. González, together with five other accused individuals, was shot to death on March 3, 1983, in compliance with the death sentence imposed on him by the Court of Special Jurisdiction that tried him.6
7. In the rural areas and those called areas of conflict, these rights are under even more serious attack since military patrols burst into villages and take out of their homes those persons they accuse of being subversive and torture them to death at the nearest detachment, with their mutilated bodies turning up in rivers, ravines and roads. In that respect, the Commission gathered numerous statements during its tour of the interior of the country particularly at the Mexican-Guatemalan border.
8. The case of Mr. Emilio Camposeco and Mr. Pascual Tomas, described in the chapter corresponding to the right to life, as well as that of Mr. Felipe Caal, a Catholic catechist, who during the past year had been arrested and tortured several times and who finally turned up dead eight days before the visit of His Holiness John Paul II to Guatemala, are typical examples of the existing situation in the rural areas of Guatemala with respect to the rights being examined.
9. Torture in these areas, as the Commission pointed out in its previous report on the human rights situation in Guatemala, has crossed the threshold of being a method to obtain a confession or inflict punishment, and has become a method for exterminating people in order to serve as a lesson to the citizenry. After examining the observance of these rights in Guatemala, in light of the evidence on hand, the Commission cannot reach a conclusion other than that the police and army in Guatemala constantly violate the right to personal security and integrity.
1 Article 5 of the American Convention on Human Rights provides that: 1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
On its part, Article 7 of the Convention states: 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 or 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 nonfulfillment of duties of support.
2 Article 23, paragraph 10, Fundamental Statute of Government.
3 Article 23, paragraph 16, Fundamental Statute of Government.
4 Newspaper La Razón, June 5, 1982.
5 Article 23, paragraph 16, Fundamental Statute of Government.
6 See Chapter II, Letter C.