CHAPTER IV: THE ADMINISTRATION OF JUSTICE
1. The present report in general, and this chapter in particular, are oriented in great part around the theme of the right to judicial recourse and protection. The inefficacy of justice in response to crime is, in fact, one of the greatest current concerns of the populace. Because the judiciary stands as the first line of defense for the protection of individual rights and freedoms at the national level, the issues analyzed in the present chapter are of special relevance to the overall situation of human rights in Guatemala, and have a critical bearing on the protection of each right dealt with in this report.
2. The administration of justice is a focal point of the agenda for peace. The peace accords recognize that chronic deficiencies must be corrected in order for it to serve its indispensable role in the consolidation of democracy. Many of these deficiencies are deeply rooted in the history of the internal conflict. This Commission reported on the denial of justice throughout the conflict,[1] and shares the conclusion of the Historical Clarification Commission that:
The failure of the administration of justice to protect human rights during the internal armed confrontation has been clearly and fully established, by the thousands of violations ... that were not investigated, tried, or punished by the Guatemalan State.... In general, the Judiciary neglected to address basic procedural remedies to control the authorities, in view of the grave abuses against personal liberty and security... Moreover, on numerous occasions the courts of justice were directly subordinated to the Executive branch.... This whole situation made the population totally defenseless in the face of the abuses of the authorities, and has led the Judiciary to be seen as an instrument for defending and protecting the powerful, that has repressed or refused to protect fundamental rights, especially of those who have been victims of grave human rights violations.[2]
In this regard, in its response to the draft report, the State recognized that:
It is an incontrovertible fact that, during the armed conflict, the system to administer justice was disorganized, in addition to its historical structural problems. Internally, it has been marked by excessive centralization, along with the crosscutting issues of exclusion and corruption, which left the population absolutely defenseless and protected only by those groups with de facto power.
3. The peace accords also require the judiciary to play a pivotal role in the national agenda of reconciliation and democratization. The accords task it with, inter alia, the duty to combat impunity, recognize the norms and practices of indigenous law, resolve the situation of land conflicts, and address tax evasion. In this regard, a number of serious and committed initiatives are underway to support its ability to serve this role. For example, the allocation of additional resources to the judiciary, and the establishment of new judicial facilities throughout the country are an indispensable step in improving access to justice. Further, the approval and implementation of the Law on the Judicial Career and Law of Civil Service of the Judiciary, as well as the creation of the Council on the Judicial Career constitute fundamental advances in favor of protecting the independence of the judiciary.
4. However, a number of profound systemic deficiencies continue to subvert justice, and have yet to be effectively addressed.[3] These include serious problems in the systems and procedures for delivering justice, as well as the paralyzing effect of attempts to coerce those involved in the pursuit and administration of justice through threats and corruption. Given the central role of the judiciary in safeguarding all individual rights, the challenge of redressing these problems is both urgent and paramount.
A. The Legal Framework
1. National Law
5. The general duties of the State set forth in Article 2 of the Constitution are to guarantee to the inhabitants of the Republic life, liberty, justice, security, peace and integral development. Article 29 guarantees the right of free access to the courts and other State offices. As noted previously, Article 46 establishes the primacy of treaties ratified by Guatemala in the sphere of human rights over provisions of internal law. The Constitution, in turn, has primacy over other legislation or treaties, pursuant to Article 204.
6. The role and functions of the judiciary are defined in chapter IV of the Constitution. Article 203 provides for the independence of the judiciary and its power to impart justice. Article 205 guarantees that the judiciary: shall have functional and economic independence; that magistrates and judges of first instance shall not be removable except in cases established by law; and, that it shall select its own personnel.
7. The judiciary is composed of a Supreme Court, appellate courts, lower courts, and courts of special jurisdiction. Pursuant to Article 215, Supreme Court magistrates are elected by the Congress from a list of 26 candidates proposed by a nominating committee composed of representatives of the rectors of the universities of the country, with the deans of the law faculties presiding. In the case of the Court of Appeals, Article 217 specifies that magistrates shall be elected by the Congress from a list containing double the number of positions to be filled. The nominating committee is composed of the same representation of the universities, with an equal number of members elected by the General Assembly of the Association of Lawyers and Notaries, and an equal number elected by the magistrates of the Supreme Court. According to Article 208, magistrates and judges of first instance serve for five year terms, and may be reelected. A recent report indicated that there are a total of 574 judges: “13 Supreme Court Justices, 64 magistrates of the appellate courts, 213 first instance judges, 284 Justices of the Peace. Of these, 157 are women.”[4]
8. The Constitution also provides for a Court of Constitutionality, which, pursuant to Article 268, is independent of the other organs of the State and tasked with defending the constitutional order. Pursuant to Article 269, that Court is comprised of five magistrates and five alternates, although that number is elevated to seven (through the incorporation of two alternates) when the Court is hearing a matter against one of the three powers of State. Magistrates and alternates serve for five years, and are appointed one each by the Supreme Court, Congress, the President in the Council of Ministers, the University of San Carlos and the Bar Association.
9. Within the framework of the peace accords, the Agreement on the Strengthening of Civil Power recognizes that the institutions of justice suffer from structural weaknesses that have caused corruption, inefficiency and impunity, and commits the State to strengthen the administration of justice in conformity with the multiethnic, pluricultural and multilingual nature of the country. Specific commitments include the adoption of reforms to the Penal Code to prioritize the prosecution of the most serious offenses, reflect the cultural diversity of the country, protect human rights, and severely punish the use of threats and corruption in the system. This Accord also reflects the State’s commitment to establish an autonomous Public Defender’s Office for criminal matters.
10. With respect to cultural diversity, the accords commit the State to take measures to recognize the management of internal matters by indigenous communities according to their traditional norms and international human rights norms, train judicial personnel about indigenous culture and identity, and ensure the availability of interpreters in judicial proceedings. Further, the State is committed to effectuating certain limitations in the jurisdiction of military tribunals. To accomplish the objectives set forth, the Accord called for, inter alia, the configuration of a Commission on the Strengthening of Justice to formulate additional proposals, and a 50% increase in the budget allocated for the judiciary between 1995 and 2000. Compliance with these commitments will be analyzed below.
11. In its comments on the draft report concerning the internal legal framework, the State indicated that:
The constitutional framework contains sufficient guarantees to protect fundamental rights …; however, [it] recognizes that certain changes are needed, such as the approval of a new criminal code, in conformity with the code of criminal procedure, of an accusatory nature, and that also recognizes the management of internal matters by indigenous communities in accordance with their traditional norms. Further, changes are needed to bring ordinary legislation into conformity with the Constitution and the international law of human rights.
2. International Law
12. The right to justice is protected by a number of interrelated norms in the Inter-American human rights system. Most directly, Article 25 of the American Convention sets forth the right of the individual to have effective recourse to a competent court for the protection of his or her fundamental rights under domestic law or under the American Convention. Article 8 of the American Convention specifies that such effective judicial recourse includes the right to be heard with due guarantees: “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 his rights and obligations of a civil, labor, fiscal, or other nature." This Article also provides a series of minimum guarantees that apply in criminal proceedings.
13. More broadly, the obligation of any State Party to the Convention pursuant to Article 1(1) to "respect and ensure" the rights recognized therein:
implies the duty … to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the States must prevent, investigate and punish any violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.[5]
14. As the Inter-American Court of Human Rights has explained, Articles 25, 8, and 1(1) are mutually reinforcing.
Article 25, read in conjunction with Article 1(1) of the American Convention, requires the State to guarantee to all persons access to the administration of justice and, in particular, to prompt and simple recourse for, among other results, having the persons responsible for human rights violations judged, and to obtain reparations for the harm suffered.... Article 25 "is one of the basic pillars, not only of the American Convention, but of the very rule of law in a democratic society...." That article is directly related to Article 8(1) ... which enshrines the right of all persons to be heard with due guarantees ... for the determination of their rights, whatever their nature.[6]
15. As with other rights under the American Convention, the right to judicial protection and guarantees must be realized on a nondiscriminatory basis, pursuant to Article 1(1). Article 24 further specifies that “All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.”
16. It may be noted that the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons, and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women, to which Guatemala is Party, all contain specific provisions requiring that violations be subject to effective investigation, prosecution and punishment. Also of relevance is the ICCPR, to which Guatemala is a Party, and the Basic Principles on the Independence of the Judiciary, Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power and Guidelines on the Role of Prosecutors adopted within the framework of the UN.
B. Overview of the Right to Judicial Protection and Guarantees
17. The administration of justice has been subjected to great scrutiny since the signing of the peace. Just prior thereto, the judiciary had established a Modernization Commission which diagnosed a series of priority challenges and designed a Modernization Plan that was approved by the Supreme Court in 1997. The Plan includes measures aimed at: improving the functioning of the courts; strengthening access to justice; combating corruption; strengthening institutional methodologies; and improving communications and outreach.[7] With the signing of the peace, the Commission on the Strengthening of the Judiciary was established pursuant to the terms of the Accord on the Strengthening of Civil Power. That Commission carried out an extensive analysis, and issued a report and recommendations on issues including the modernization of the administration of justice, access to justice, efficiency in proceedings, and professional excellence.
18. In fact, as discussed below, a number of these recommendations have borne fruit, in particular with respect to expanding the presence of the judiciary throughout the country, more efficient organizational and information systems, the pursuit of alternate dispute resolution mechanisms, and the development of the judicial career. The administration of justice is currently benefiting from strong international support, with a diverse array of dynamic initiatives being funded through millions of dollars in donations, credits and loans.
19. Nonetheless, the principal characteristic of the current situation remains the persistence of impunity in many cases of human rights violations and common crime. In assessing compliance with the peace accords through the end of 1999, the Assembly of Civil Society concluded that the individual right most violated was that to due process and, in general, to justice.[8] While there have been some noteworthy advances in the institutional capacity of the judicial system – and these must not be underestimated -- a number of endemic and systemic factors that militate against justice remain virtually unaddressed. It is this impunity which is most worrying to the Commission, because it signifies that, with few exceptions, human rights are not subject to the judicial protection required under the American Convention.
20. To provide a frame of reference, in its report for July of 1997 through March of 1998, MINUGUA reported admitting 90 complaints, concerning 191 alleged violations of the right to due process. During the period, the Mission confirmed 451 violations denounced during that and previous periods. 392 concerned the failure of the State to investigate, prosecute and punish violations.[9] In its report for April through December of 1998, the Mission indicated that it had admitted 94 complaints involving 880 alleged violations. 534 violations had been confirmed: 96 concerning the right to be presumed innocent, 85 concerning the right to be tried before a competent, independent and impartial court, 85 concerning the right to defense, 80 concerning the right not to be compelled to testify against oneself, 43 involving obstruction of justice and 108 concerning the State’s duty to investigate, prosecute and punish.[10]
21. The Mission reported an increase in such violations in its report for January through November of 1999. It admitted 155 complaints involving 1657 violations. It confirmed 3,665 violations during the period, 3,083 concerning violations denounced during previous periods. Of these, more than half concerned the State’s failure to investigate and punish human rights violations committed during the conflict, and obstruction of justice. Of the 582 confirmed from denunciations received during the reporting period, the majority involved the failure of the state to investigate and to punish perpetrators, and the failure to afford legal guarantees to the victim.[11] In its most recent report for the first half of 2000, the Mission reported admitting 131 complaints concerning 4,034 alleged violations. 2,992 were confirmed, concerning the failure to investigate and punish violations, the obstruction of justice, and denial of justice.[12] Those responsible for the violations confirmed in the foregoing reports were the National Police, National Civil Police, the Public Prosecutor and the judiciary.
22. In the analysis which follows, the Commission will first address issues concerning the capacity of the systems and structures in place to provide judicial recourse. The point of orientation is access to justice, first in practical terms with respect to the availability of local courts and interpretation into the language of the indigenous users of the system, and then in terms of the efficacy of the procedures and system for delivering justice. The analysis will then address how the incidence of acts of intimidation and corruption affect access to an independent and impartial judiciary. Finally, the Commission will highlight considerations about the incompatibility of impunity with the rule of law, and offer a series of recommendations aimed at strengthening national efforts to reform the administration of justice.
C. Access to Justice: Facilities and Support
23. The State has complied with the commitment set forth in the Agreement on the Strengthening of Civil Power to increase the budget for the judiciary by 50% from the amount allocated in 1995. This provides an important means to take on other reforms called for in the peace accords and in the judiciary’s own modernization plan. While further resources are needed, what is required to resolve many of the priority issues is political will and action.
24. Following the peace accords, and with important support from the international community, the State has realized some noteworthy advances in beginning to address geographic limitations on access to justice. Under the conditions of the conflict, the only State presence in many outlying communities was the Army. One of the significant struggles since the signing of the peace has been the establishment of civil institutions in these areas to provide police, judicial and other services aimed at resolving social conflicts. Substantial advances have been realized, although given the remoteness of some populations, this continues to be an important challenge.
25. Two developments are illustrative and worthy of special note in this regard. The first concerns the creation of courts of peace in all the municipalities of the country. In early 1998, as part of a pilot project, five new local courts of peace were established in areas previously unserved by this institution.[13] The objective was to evaluate their first year of operation to determine if such courts should be extended to all municipalities where they were not already established. These courts, established in San Andrés Semetabaj, Sololá, San Rafael Petzal, Huehuetenango, San Luis, Petén, Santa María Chiquimula, Totonicapán and San Miguel Ixtahuacán, were attributed with some special characteristics. They were comprised of three justices of the peace fluent in both Spanish and the local indigenous language, named by the Supreme Court “in consultation with” local authorities. In addition to other basic functions, they were authorized by law to consider plea bargains (criterio de oportunidad) and pursue methods of alternative dispute resolution in certain cases.[14]
26. Based on the generally positive evaluation of the project by the Supreme Court and those served, these courts were extended to other municipalities throughout the country. This has likewise generated a largely positive reaction. As of August of 2000, there were approximately 400 courts of peace throughout the country.[15] This represents a fundamental advance for three reasons, first because they make justice geographically accessible for populations for whom access would previously have required great time and effort, if it had been available at all. Second, they facilitate linguistic access to justice for those previously excluded from proceedings conducted only in Spanish. Third, they fill an important gap for communities for whom these courts represent the only State presence competent to resolve conflicts.[16] Nonetheless, it has been noted that there is ambiguity in the intersection of the application of national law and traditional custom, which is not subject to legal regulation, and that these courts suffer from many of the same deficiencies of courts generally.[17] Professionalism and oversight remain pending issues for these courts and the judiciary in general. With respect to this particular initiative, the Commission values both the effort to facilitate geographic and linguistic access and to look for flexible mechanisms to administer justice.
27. The second development concerns the establishment of centers to administer justice in areas including Quetzaltenango, Nebaj, Santa Cruz, Santa Eulalia, San Benito, Zacapa and Escuintla, with the generous support of a number of international donors. The objective of these centers is to bring together police, prosecutors, public defenders, judges, practitioners and local authorities to provide services to the local population in an efficient and effective way. In bringing these actors together, the centers allow for participatory approaches to improving the delivery of justice. Further, the centers benefit from modernized docket control and case filing systems, which has greatly facilitated the processing of cases. Another critical benefit is the availability of interpreters and use of outreach programs in local languages.
28. With reference to the question of geographic access to justice, these projects merit full recognition and provide a concrete illustration of the potential for further advances. Certainly more work remains to be done. There are still many areas that remain underserved. For example, the Commission recently received information concerning the insufficient coverage of courts of first instance in areas including the Departments of Guatemala, Izabal and Escuintla. There is also a need for additional courts to alleviate overloaded court dockets, particularly in the case of courts of first instance.[18] Further, the modernized case file and docket control procedures implemented in some courts need to be expanded throughout the system. Delays of hours or days in locating files, and “lost” files are just two examples of the serious problems that have been overcome through the implementation of updated procedures in some courts. It has long been recognized that problems with file and docket management, coupled with lack of oversight, facilitate corrupt practices, such as the payment of bribes to “lose” files, or delay or accelerate processing.[19]
29. With reference to the question of linguistic access to justice, as reference
to the foregoing initiatives indicates, some important and encouraging advances
have been realized. However, reports indicate that this kind of facilitation
of linguistic access to justice remains highly exceptional. The Commission has
received a variety of reports, including in the context of its individual case
system, concerning the inability of indigenous defendants to understand the
Spanish language proceedings against them and the inability of witnesses to
offer effective testimony because of the lack of interpreters. The fact that
the indigenous population is impeded from fully participating in the justice
system prejudices the efficacy of justice for indigenous and nonindigenous citizens
alike. In a multilingual country, the inability to conduct proceedings in the
languages of the population constitutes a grave limitation on the right to judicial
protection and guarantees.
D. Access to Prompt, Effective Justice
30. Delay in processing and deficiencies in the quality of work done by the institutions involved in the administration of justice are acknowledged as priority problems, and the analysis which follows highlights several key concerns in this regard. There are a number of dynamic and positive initiatives underway that have begun addressing some of these challenges, including the modernization of case file and docket control procedures referred to above, a range of training programs and the design of new mechanisms for judicial discipline. Training for the National Civil Police has been enhanced, the Office of the Public Prosecutor and Public Defender have benefited from technical assistance programs, and the recently adopted measures concerning the judicial career provide for enhanced training. The Commission is well aware of the committed efforts of many dedicated police and jurists in this regard, and the significant support such efforts have received from the international community. Notwithstanding, and sometimes in spite of these efforts, systemic problems persist and lend themselves to impunity for those who violate the law and the rights of others. While these concerns affect all aspects of the judicial system, this analysis focuses on the criminal justice system where certain manifestations of these deficiencies are particularly prejudicial.
31. Deficiencies in the system for administering criminal justice begin at the initial stage of investigation, which in turn prejudices the chances for effective prosecution.[20] This affects the right of victims of common crime and human rights violations to judicial protection and redress, and the right of any person implicated to mount an adequate defense. As a consequence, public confidence in the judicial system remains low.[21] MINUGUA has repeatedly indicated that “[i]n most cases involving the right to due process, verification reveals that investigatory procedures essential in order to shed light on the facts and bring the perpetrators to trial are still not being carried out.”[22] While some advances have been realized in the selection and training of members of the National Civil Police, serious pending challenges remain.
32. These challenges are particularly acute with respect to the Criminal Investigation Service of the National Police. Problems with selection and screening persist. Many of those selected do not have the educational background required for complex investigative work.[23] As of early 2000, reports indicated that this Service included some 500 investigators, of whom roughly 150 had taken some basic training. Approximately 100 had prior experience as members of the National Civil Police. Estimates indicated the need for a total of between 1500 and 2000 investigators, which at current rates would take seven years to train and deploy.[24]
33. In assessing compliance with the Agreement on the Strengthening of Civil Society, the Assembly of Civil Society emphasized that the State had failed to address the legacy of militarization within the National Civil Police and Prosecutor’s Office, or its role as a parallel power.[25] The Commission is particularly concerned by ongoing reports of the participation of military intelligence in criminal investigations.[26] The Commission has already indicated its concerns with respect to the participation of Army soldiers in anti-crime patrols, a practice it finds places the rights of civilians at risk.[27] In contrast with this practice, which is authorized as a matter of domestic law, military participation in criminal investigation activities directly contravenes domestic law. The Code of Oral Criminal Procedure vests this responsibility exclusively in the National Civil Police under the direction of the Public Prosecutor.[28] A further concern is the lack of transparency of such participation, which is not subject to civilian control or oversight.[29] This lack of transparency and accountability is incompatible with the rule of law.
34. The Commission has also received reports, including through its individual case system, of interference by State entities with ongoing judicial proceedings. This situation has deep roots in the causes and consequences of the armed conflict, and is one of the systemic problems that has not been addressed and continues to subvert justice.[30] For example, the Commission has received information to the effect that the Ministry of Defense has refused to supply documentation requested through judicial channels in ongoing investigations by invoking Article 30 of the Constitution.[31] This Article, which falls within the section concerning individual rights, provides the general rule that acts of the administration shall be public, with the exception of military or diplomatic matters of national security. Specialists in criminal procedure have indicated that Article 30 does not apply to requests submitted by a court to another entity of the State; rather, they maintain, such situations are governed by Article 244 of the Code of Oral Criminal Procedure, which indicates that it is for the judge in the particular case to determine whether particular materials submitted merit confidentiality.[32] The Commission is also aware that some of the information the Commission for Historical Clarification requested from the Ministry of Defense was not provided, in contravention of the letter and spirit of the peace accords. As the Inter-American Commission has previously stated:
The administration of swift and effective justice, especially in exposing, sanctioning, and providing a remedy for atrocities or grave violations of human rights by agents of the state, often requires reference to documents that have been classified as secret or inaccessible for reasons of national security. Maintaining State secrecy in such cases perpetuates impunity and erodes State authority, inwardly and outwardly.[33]
35. As cases progress through the system, technical areas often lack the equipment and facilities necessary to properly analyze evidence. Moreover, reports persist about evidence being lost, destroyed, or allowed to deteriorate so that it no longer has probative value.[34] In a number of cases the Commission is processing through its individual case system, petitioners have raised claims that the police or Public Prosecutor failed to collect evidence at the scene, or altered, lost or failed to produce it for trial.
36. The Office of the Public Prosecutor plays a key role in the administration of justice as the entity charged with directing criminal investigation and prosecution. While a number of projects are underway to strengthen this Office, reports continue to reflect the persistence of certain problems outlined to the Commission during its on-site visit, which included the lack of a policy to prioritize the prosecution of cases of more urgent social importance, lack of training in investigative techniques and direction, insufficient funding, and the concentration of resources in the capital.[35] The Commission is aware that the Office includes many prosecutors working to improve the administration of justice, but who are impeded by systemic deficiencies. In a number of cases, prosecutors and related personnel have paid a high cost for their diligence in the form of threats and attacks not met with the corresponding institutional protection and support. The latter point will be discussed further below.
37. A particular problem that has long been cited is the lack of coordination and collaboration between the Office of the Public Prosecutor, the National Civil Police, the judiciary and the prison system.[36] This too is the subject of various projects aimed at improving the situation. However, in assessing compliance with the peace accords as of the end of 1999, the Assembly of Civil Society indicated that this “institutional incoherence” had not been resolved.[37] This lack of coordination is particularly problematic with respect to criminal investigation, which, as noted, is carried out by the police under the direction of the Public Prosecutor’s Office. However, it extends throughout the system. The Commission has received reports that interinstitutional communication problems are such that members of the National Civil Police may not show up at the cited time to provide testimony, and detainees may not be brought to court at the time of trial.[38]
38. Given the level of poverty in Guatemala, the Office of the Public Defender is charged with the critical duty of defending the majority of persons subject to criminal accusations.[39] Pursuant to the Agreement on the Strengthening of Civil Power, the State committed itself to create an autonomous institution charged with providing legal assistance to those otherwise unable to afford it. This Office, previously a service within the Supreme Court since its establishment in 1994, became autonomous in 1998. Over the last several years, the institution has benefited from greatly increased human and material resources, as well as technical support from the international community. While in 1996 there were fewer than 30 public defenders for the country (and some areas were not served),[40] as of late 1999, the Office of the Public Defender included some 91 public defenders on staff.
39. Notwithstanding this substantial advance, however, as is discussed in the chapter on the right to liberty, infra, a substantial number of indigent persons detained on the basis of a criminal accusation lack legal representation. There is evidently a breakdown in the procedures for ensuring that detainees are informed of this right and of how to avail themselves of it. Further, notwithstanding the noteworthy efforts the Commission has seen of some committed public defenders working to advance the objectives of the institution, recent studies indicate that the overall level of professionalism remains low. One such study reported that public defenders display a lack of preparation in their cases, and fail to request substitute measures and writs of habeas corpus in cases where these are justified.[41] It suggested that public defenders are rotated too often to manage their cases effectively, that their role within the system is still not accorded due recognition, and that they remain in need of training that addresses the true demands of the work.[42]
40. In its observations on the draft report, the State emphasized that the Office of the Public Defender is engaged in a process of institutional strengthening. This is supported by technical and financial resources provided by the State, as well as by the international community. This process nevertheless “requires greater support to amplify its response capacity.” The State offered updated data specifying that the Office was working with 98 staff attorney-defenders, and 300 public defenders de oficio – that is, attorneys in practice who offer their services for a fee. In a notable advance, the State reported that the Office and the Ministry of the Interior would sign an agreement “so that a public defender would be permanently present in the comisarías with the greatest number of detentions, and so that detentions for minor infractions could be dealt with then and there, avoiding the need for transfer to a preventive detention center.” The Commission encourages and values the development of institutional innovations designed to expedite such procedures, and looks forward to receiving information about the results of the agreement in reference in the near future.
41. The processing of cases is often extremely slow, due to a variety of factors. One relates to the problems with initial investigation discussed above, which often impede further processing. Another concerns overcrowded court dockets and backlogs of cases. As is discussed in the chapters concerning the right to liberty and the situation in the prisons, delay is particularly prejudicial in the criminal justice system, but it extends throughout the system in prejudice to the resolution of all types of disputes. Another factor about which the Commission has received information, including through its individual case system, concerns the alleged misuse of procedural remedies to delay the prosecution of human rights and other cases, and the failure of the judiciary to respond to such tactics effectively in accordance with the law. Such reports indicate, for example, that lawyers abuse the remedy of amparo to appeal all manner of interlocutory and other decisions absent any factual or juridical foundation.[43] The resolution of such motions may take months, and causes the stagnation of the proceedings which are adjourned pending the decision.
E. Access to a Competent, Independent Judiciary
42. The crucial recent advance of the adoption of the Law on the Judicial Career responded to deep and longstanding concern about the lack of security of tenure for judges. While the concept of the judicial career had been formally recognized in Article 209 of the Constitution, it was only put into practice with this recent development. During its on site visit, the Commission had received numerous complaints about the insecurity of tenure. Judges alleged having been subject to abrupt transfers of jurisdiction as a form of pressure or reprisal, and to disciplinary procedures that were not clearly defined or applied with due process.[44]
43. It was in October of 1999 that the Congress, in compliance with the Agreement on the Strengthening of Civil Power, adopted the Law on the Judicial Career, which entered into force in December of 1999. Importantly, the legislative debate included the participation of the Supreme Court and the Ad Hoc Commission for Follow Up and Support to the Strengthening of Justice. The law regulates, inter alia, the income, terms of office, promotion, training and discipline of judges and magistrates. It is intended to recognize and support competent members of the judiciary while creating procedures to remove incompetent and corrupt judges. Importantly, it provides for the transfer of judges only at the request of the judge concerned, or for reasons of service, pursuant to a hearing and resolution of the Council of the Judicial Career, accepted by the judge. Further, it provides that judges subject to complaints have the right to be heard, with the presence of legal counsel. The UN Special Rapporteur on the independence of judges and lawyers has opined that the law is “generally in accordance with international standards concerning judicial independence and impartiality.” The Commission, for its part, recognizes and values this significant advance in compliance with the principle of respect for the independence of the judiciary.
44. However, a fundamental issue remains pending. Among the reforms to the Constitution rejected in the May 1999 referendum was that which would have extended the judicial term of office from 5 to 7 years. The Commission has previously expressed concern where terms of judicial office are unduly brief,[45] and shares the preoccupation expressed by the UN Special Rapporteur on the independence of judges and lawyers that the:
fixed term of five years with the possibility of re-election provided under articles 208 and 215 of the Constitution does not provide the requisite security of tenure and may be inconsistent with the principles of judicial independence as provided in article 203 of the same Constitution and principle 12 of the United Nations Basic Principles on the Independence of the Judiciary.[46]
The Special Rapporteur indicated that a reasonable term would be ten years, with no provision for re-election.[47]
45. In a further positive development, in July of 2000, the Council on the Judicial Career initiated its functions. Among other things, it is charged with convoking a competitive process for entry into the career service of the judiciary, the evaluation of judges and magistrates, defining the policies of the Unit for Institutional Training in accordance with the Law of the Judicial Career, and defining policies on discipline. Among the Council’s overall objectives is the incorporation of all judges and magistrates in the career service by the end of 2005.
46. Initiatives for judicial training and to protect judicial tenure are just being put into place, so it is too early to evaluate them in detail. They are important advances that the Commission acknowledges and commends, and it looks forward to receiving additional information on the implementation of the objectives set forth. What can be said at this point is that past deficiencies have clearly defined the challenges to be met, and that the initiatives in question are indispensable first steps. What is required is that these be fully and effectively implemented.
F. The Influence of Intimidation and Corruption in Access to Independent
and Impartial Justice
47. One of the gravest threats to the administration of justice is the widespread situation of threats and attacks against victims or family members, witnesses, lawyers and prosecutors and judges to influence judicial proceedings. The alternative mechanism of coercion employed is corruption. The severity of this problem is exacerbated and perpetuated by the lack of effective response by the State.
48. During its on site visit, the Commission was assured that the entry into force of Decree 70-96, which provides for the protection of persons at risk due to their participation in a criminal justice matter, would offer an important means of response to this problem. It is now widely acknowledged that this provision has not been implemented due to the lack of resources and will to make it effective.[48] The failure of the State to implement this measure or to adopt other effective forms of protection means that those under threat and attack for their efforts to pursue justice are left defenseless. This has a number of pernicious effects, both for those concerned, as well as for society as a whole, which is left to understand that justice may be sought at one’s own peril.
49. The situation of persons involved at all stages and levels of the Gerardi investigation provides a graphic example.[49] Members of the Archbishop’s Human Rights Office involved in the pursuit of justice have been threatened and attacked, as have witnesses and prosecutors. Further, in February and March of 1999, Judge Henry Monroy, then seized of the case, was threatened.[50] The judge currently seized of the case, Flor de María García Villatoro, was threatened in May of 2000.[51] As a result of the foregoing climate of fear, a series of prosecutors and judges have resigned, and at least one lawyer, two prosecutors, a witness and a judge left the country citing security reasons.
50. The use of threats and attacks is widespread, affecting all manner of cases, from human rights violations to organized and common crime to land and other civil disputes.[52] One effort to analyze this situation documented 158 incidents of threats and acts of intimidation against judges, prosecutors, lawyers and users of the system reported in the media between 1996 and mid-1999, and tracked 70 such reports between January and June of 2000.[53] The study indicated that judges and prosecutors were among those most frequently targeted.[54] Judges of first instance and justices of the peace may in some ways be most vulnerable, but judges at all levels have complained about threats and security concerns.[55] Victims, family members pursuing justice and witnesses have also been targeted with some regularity.[56] The nature of the acts of intimidation ranges from threats and death threats against those directly involved in judicial proceedings and their families, to harassment, aggression, the sending of a package bomb, and in the most extreme cases, murder.[57]
51. In accordance with its mandate and Article 29 of its Regulations, the Commission has the competence to issue precautionary measures, at the request of a party or at its own initiative, in urgent cases where necessary to avoid irreparable damage to persons, and has utilized this capacity to request that the State take protective measures in relation to a number of individuals threatened or attacked in presumed connection with the pursuit of justice for human rights violations. As is recounted in chapter VI, infra, the Commission has requested such measures in favor of a number of individuals involved in pursuing the Gerardi case. Additionally, the Commission has requested, and the Inter-American Court of Human Rights has granted provisional measures to protect the lives and personal security of a number of witnesses and family members pursuing justice in such particular cases as the Colotenango (11.212), Carpio (11.333) and Bámaca (11.129) cases.[58] In its response to the draft report, the State valued the important contribution of the Commission in response to situations of threats or acts of intimidation against judges, magistrates, prosecutors and witnesses in cases concerning the protection of human rights, and also made reference to its efforts to comply with the measures granted.
52. In general terms, however, the lack of State response to the acts of intimidation includes the failure to protect those at risk, as well as to investigate the source and prosecute and punish those responsible. As the UN Special Rapporteur concluded, these widespread acts of intimidation threaten and undermine the very core of the independence of the judiciary, and the courts have failed in their duty to investigate.[59]
53. The other type of coercion practiced in the judicial system is corruption. The eradication of corruption and the structures that support is identified as a priority commitment in the peace accords to support the strengthening of the administration of justice. On the basis of a detailed study of the issue, the Commission on the Strengthening of Justice established pursuant to the Accord on the Strengthening of Civilian Power, concluded that corruption in the system is “intense and generalized.” That Commission found higher levels within the judiciary itself, including judges and personnel, but noted that the Public Prosecutor and security forces were also affected.[60] One infamous example was the Second Court of First Instance of Guatemala, which was known for some time as “the biotopo” because that was where the quetzales flew in exchange for anomalous measures in cases.[61] While the accords and the Commission on the Strengthening of the Judiciary called for specific actions, the response to date has been inadequate.[62] Nor are such incidents subject to effective investigation, prosecution and punishment. Corruption anywhere in the judiciary distorts and degrades the judicial function, perpetuating its disrepute before those it is to serve.
G. Impunity and Denial of Justice
54. Impunity is the result of the “failure to investigate, prosecute, take into custody, try and convict those responsible."[63] Pursuant to the interrelated guarantees established in Articles 25, 8, and 1(1) of the American Convention, the State has the duty to use “all the legal means at its disposal to combat that situation, since impunity fosters chronic recidivism of human rights violations and total defenselessness of victims and their relatives."[64]
55. Impunity in Guatemala is structural and systemic. The State does not deny that it persists,[65] and national and international observers have affirmed that perpetrators of past and present human rights violations are not held accountable.[66] This is not simply a question of leaving numerous individual crimes unpunished. Rather, interrelated deficiencies in the administration of justice have supported a system of impunity which affects the culture and life of the nation even for those individuals who are not directly affected by human rights violations or other crimes. This high level of impunity is itself one of the most serious human rights violations occurring in Guatemala. As the UN Special Rapporteur warned, “impunity is a cancer; if it is not arrested and excised it will slowly but surely destabilize society.”[67]
56. In evaluating the situation of justice, the UN Special Rapporteur on the independence of judges and lawyers offered the following conclusion:
The justice system, which was devastated during the … conflict, was marginalized and has not recovered. Its neglect since has led to inefficiency and incompetence within the system, opening the corridors of the courts to corruption, influence-peddling and their associated ills. This situation has been compounded by the fact that some of those who are alleged to have committed human rights crimes, including murder, have been appointed to hold public office in the administration of justice and other related key public institutions including the military. It is this scenario which has contributed to the continuing of impunity….[68]
He cautioned that the continued presence of persons with such records constitutes a threat to the administration of justice and recommended that they be removed.[69]
57. Impunity for those responsible for committing human rights violations is one of the most important factors contributing to the persistence of such violations, as well as criminal and social violence. The Commission exhorts the State to devote priority attention and political will to overcoming the situation of impunity that persist, and reiterates that the State will face responsibility for all violations of human rights that occur until such time as it takes the necessary measures to ensure that justice is administered fairly and effectively.
Conclusions and Recommendations
58. The judiciary must discharge its crucial mandate effectively if peace and democratization are to be firm and lasting. As the principal mechanism for interpreting and applying the law, the courts play a fundamental role in ensuring the realization of all protected rights and freedoms. Inadequacies in the administration of justice jeopardize the ability of the individual to access justice in all spheres of life.
59. Further, an independent and effective judiciary is an essential element of a modern democratic system. It is critical that the capacity of the legal system be brought into harmony with the development goals of the country, so as not to become a barrier to progress and growth.
60. In its observations to the draft report, the State indicated that
“it values and praises the concerns of the illustrious Commission relative to
the necessity for improvement in the system for the administration of justice”
and equally values the recommendations issued. It emphasized that it has assumed
as its own the recommendations of the Special Rapporteur on the Independence
of Judges and Lawyers of the UN Commission on Human Rights, and has charged
the National Commission for Follow-up and Support for the Strengthening of Justice
with their implementation.
61. In accordance with the foregoing analysis and conclusions, the Commission formulates the recommendations that follow.
62. In relation to the right of every inhabitant to have available and effective access to the facilities and institutions of justice, the Commission recommends that the State:
1. Continue and fortify its positive work in increasing the number and quality of judicial facilities established throughout the country. Intensify efforts to modernize the administration of justice, including through the expansion of initiatives to implement effective procedures for managing judicial files and court dockets.
2. Greatly enhance its nascent efforts to provide interpretation services in judicial proceedings to ensure that indigenous inhabitants may exercise their right to judicial protection and guarantees under conditions of equality with the rest of the population.
3. Intensify efforts to improve the access to justice of the indigenous population by: expanding initiatives designed to orient local institutions of justice to respond to local needs and respect positive traditional practices for conflict resolution, with their principles, criteria and procedures; expanding community outreach programs; and by further incorporating the participation of the indigenous sector - at both the national and local levels - in the design and implementation of judicial policy.
4. Further increase the amount of public spending allocated to the administration of justice, continuing the progress seen in the State’s compliance with its commitment to date in this area.
63. In relation to the right of every inhabitant to have access to prompt and effective justice, the Commission recommends that the State:
1. Greatly intensify efforts to recruit and train members of the National Civil Police, and particularly the Criminal Investigation Service, to ensure that they have the manpower, qualifications and resources to carry out a criminal investigation in accordance with the standard of due diligence.
2. Immediately put an end to military participation is any activity of criminal investigation, consistent with domestic law and its commitment to separate police and military functions under the Agreement on the Strengthening of Civil Society
3. Take the measures necessary to ensure the cooperation of all public entities in the investigation of human rights violations, including the legislative and other measures necessary to ensure the right of free access to information contained in government files and documents, particularly in the case of investigations to establish responsibility for international crimes and grave human rights violations.
4. Strengthen the procedures for collecting, analyzing and storing evidence in criminal cases.
5. Implement concrete measures to facilitate coordination between all the institutions involved in responding to violations of the law with due investigation, prosecution and punishment, and, most especially, to develop the necessary cooperation between the Public Prosecutor and the National Civil Police in the area of criminal investigation.
6. Fortify the capacity of public prosecutors and defenders to represent the interests of justice in the judicial process, including through the implementation of enhanced: recruitment initiatives; training programs designed to correspond directly to the demands of the job; incentives to retain trained, competent professionals; and oversight efforts designed to identify and remove those unable or unwilling to represent the interests of justice.
64. In relation to the right of every inhabitant to have access to a competent, independent judiciary, the Commission recommends that the State:
1. Adopt the legislative and other measures necessary to complement the entry into force of the Law on the Judicial Career and extend the five-year period of service for judges and magistrates to one compatible with the security of judicial tenure, consistent with the recommendation of nine years by the Commission on the Strengthening of the Judiciary, and ten years by the UN Special Rapporteur on the independence of judges and lawyers.
2. Devote special attention to the implementation of the Law on the Judicial Career to ensure diligent oversight and discipline consistent with the objective of professional excellence, and that the designated procedures for due process in questions of transfer or discipline are fully put into practice.
65. In relation to the independence and impartiality of the judiciary, and the situation of threats and intimidation against those pursuing justice, the Commission recommends that the State:
1. Take urgent action to devote the necessary human and material resources and political will to providing measures of protection to victims, family members, witnesses, prosecutors, public prosecutors and defenders, judges and judicial personnel, and others threatened or attacked in connection with judicial processes.
2. Establish an inter-institutional working group, including representatives of the National Civil Police, the Offices of the Public Prosecutor and Public Defender, the Judiciary and any other entity at special risk or with special responsibility in this area, to facilitate cooperation in the design and implementation of the appropriate measures of protection.
3. Adopt comprehensive measures to ensure a coordinated response to and the prompt and effective investigation of all denunciations of threats or attacks with a presumed link to judicial processes, in order to identify, prosecute and punish those responsible in accordance with national law.
4. Ensure that State personnel assigned to deal with such threats and attacks, particularly in the case of the National Civil Police and Office of the Public Prosecutor, have the necessary qualifications and expertise to respond with due diligence.
5. Adopt a code of legal ethics and promote compliance through training, both within the judiciary and as part of legal education, as well as through strengthened oversight and disciplinary measures.
6. Adopt practical measures to prevent opportunities for corrupt practices, such as expanding the initiatives adopted in some courts to reorganize working spaces of court functionaries to make them more open and accessible, and to modernize file and docket control systems.
7. Implement specific mechanisms of supervision and oversight to detect corruption, and to ensure prompt investigation, prosecution and the imposition of disciplinary or penal sanctions. The Commission supports the recommendation of the UN Special Rapporteur on the independence of judges and lawyers that an independent enforcement agency with the power to investigate complaints of corruption in public office, including the judiciary, and to submit matters for prosecution be established.
66. In relation to the situation of impunity and denial of justice which characterizes, in particular, cases of human rights violations, the Commission recommends that the State:
1. Implement the recommendation of the UN Special Rapporteur to remove persons known to have committed human rights violations during the armed conflict from public office and from the military, and to ensure that they are not appointed to public office in the future.
2. Intensify efforts aimed at clarifying the human rights violations of the past in order to prosecute and punish those responsible in accordance with applicable law, and ensure that the victims receive just compensation.
Notes Ch. IV_____________________
[1] See introduction, supra, notes 3 and 4.
[2] Historical Clarification Commission, Guatemala: Memoria del Silencio, Cap. II, Vol. 3, “Denegación de justicia,” paras. 285-86.
[3] Report of the Special Rapporteur on the independence of judges and lawyers, Mr. Param Coomaraswamy, submitted in accordance with Commission resolution 1999/31 [“Report of the UN Special Rapporteur”], E/CN.4/2000/61/Add.1, 6 Jan. 2000, at para. 162.
[5] IACtHR, Velásquez Rodríguez Case, Judgment of July 29, 1988, paras. 169-70.
[6] IACtHR, Case of Loayza Tamayo, Reparations, Judgment of November 27, 1998, para. 169 (citations omitted). See also the Cases of Velásquez Rodríguez, Fairén Garbi and Solís Corrales, and Godínez Cruz, Preliminary Objections, supra, paras 91, 90, and 93, respectively.
[7] Comisión de Modernización del Organismo Judicial, Plan de Modernización del Organismo Judicial 1997-2000 (1997).
[8] Asamblea de la Sociedad Civil, “Balance del Cumplimiento de los acuerdos de Paz, una visión de la Sociedad Civil -- 1997-1999” (2000), section IV. See ch. I, noting the role of the Assembly during the peace negotiations. Following the signing of the peace, the Assembly constituted itself as an autonomous space for discussion and debate on themes of transcendental national important, and as an overseer of the peace process and accords, and with other institutions of civil society has made an important contribution to the construction of the agenda of peace.
[9] MINUGUA, Eighth report on human rights of the United Nations Verification Mission in Guatemala (“Eighth Report”), A/52/946, 15 June 1998, para. 41.
[10] MINUGUA, Ninth report on human rights of the United Nations Verification Mission in Guatemala (“Ninth Report”) A/53/853, 10 March 1999, para. 28.
[11] MINUGUA, Tenth report on human rights of the United Nations Verification Mission in Guatemala (Tenth Report”) A/54/688, 21 Dec. 1999, para. 51, table.
[12] MINUGUA, Eleventh report on human rights of the United Nations Verification Mission in Guatemala (“Eleventh Report”), A/55/175, 26 July 2000, para. 58.
[13] See Article 552 bis, Code of Oral Criminal Procedure, adicionado por el Art. 50 Dect. 79-97, “juzgado de paz comunitario.”
[15] See “Justicia para todos propone Comisión de Modernización de Justicia,” Prensa Libre, 18 Aug. 2000.
[16] MINUGUA, Tenth Report – Supplemento: Funcionamiento del Sistema de Justicia, para. 66.
[18] See, for example, submission of August 10, 2000 by Madres Angustiadas.
[19] See, for example, Una nueva justica para la paz: Informe Final de la Comisión de Fortalecimineto de la Justicia (1998) pp. 48-51.
[20] See Fundación Myrna Mack, Desafío, enero-abril 2000, No. 1, pp. 3-4 (analyzing problems with the investigation of crime scenes, and prejudice to eventual prosecution).
[21] See, “Encuesta acerca de la calificación de instituciones,” Prensa Libre, 18 June 1999 (reporting that two-thirds of those polled rejected the work of the courts, while 18.6% indicated their belief that the courts provided justice).
[22] MINUGUA, Ninth Report, para. 33; see also, Eleventh Report, para. 59 (reiterating the same conclusion).
[23] Hugh Byrne, William Stanley, Rachel Garst, Rescuing Police Reform: A Challenge for the New Guatemalan Government (Washington Office on Latin America 2000), at ch. 5 (noting a number of issues, including the fact that many members have only a primary education). In its comments on the draft report, the State mentioned some advances in relation to the theme of training, principally, the reform of the curriculum, additional academic training for agents who have already taken classes at the academy, the signing of an agreement with the Mariano Galvez University of Guatemala toward the development of a technical career and degree in criminalistics and criminology.
[25] Assembly of Civil Society, supra.
[26] See, for example, MINUGUA, Eleventh Report, Supplement: Cases of human rights violations, Case 20 (referring to the Ordoñez Peralta killing and investigation).
[28] See Article 112, ref. por art. 13, Dec. 79-97, Code of Oral Criminal Procedure; see also Article 9, Law of the National Civil Police (Decree No. 11-97).
[30] In a disturbing interview in early 1999, former President and Ombudsman for Human Rights Ramiro de León Carpio analyzed the obstacles to the clarification of the murder of Monsignor Gerardi, and noted the repetition of the history of impunity and cover-up. Lucy Barrios, “De León Carpio: “Hay estructuras paralelas de poder,” Prensa Libre, 15 Feb. 1999. He acknowledged that, following the murder of his cousin Jorge Carpio, which he considered to have been an “institutional coup,” he had encountered “walls” that prevented him from resolving the case. He indicated his belief that the parallel structures of economic and military power that had always existed, and which had prevented the resolution of his cousin’s murder, were, while somewhat diminished given the end of the conflict, preventing the clarification of the Gerardi case. He noted that the aggravating factor in the Gerardi murder was the very fact that it had happened during times of peace. Id.
[31] See Desafío, supra, pp. 5-6; Alberto Bovino and Julio Maier, “Secreto de Estado en Guatemala: La forma secreta de afectación a las garantías ciudadanas,” in Secreto de Estado (Fundación Mack 1999) pp. 9-11.
[33] Annual Report of the IACHR 1998, OEA/Ser.L/V/II.102, Doc. 6 rev., Apr. 16, 1999, “Recommendations of the IACHR,” recommendation 20.
[35] Compare Coordinadora Nacional de Derechos Humanos en Guatemala (“CONADEGUA”), Situación de los derechos humanos en Guatemala: marzo 1997 a Julio 1998, at p. 19; and Manuel Garrido, “Actuación y perfil de los fiscales,” in Funcionamiento del sistema de justicia en Guatemala: Un análisis de comportamientos institucionales (MINUGUA 2000) pp. 47-53.
[36] See id.; Byrne et al., supra.
[37] Asamblea de la Sociedad Civil, supra.
[38] Submission by the Madres Angustiadas to the IACHR, August 10, 2000.
[39] Official data confirms that the vast majority of those convicted and sentenced for crime are workers with few resources who are unable to hire private lawyers. See Oneida Najarro, “Justicia no es pareja,” Prensa Libre, 9 Dec. 1999 (reporting concern of various sectors in response to study based on official data).
[40] See Comisión de Fortalecimiento de la Justicia, p. 201; see also, Antonio Maldonado, “Calidad y eficacia de los defensores públicos de planta,” in Funcionamiento del sistema de justicia en Guatemala: Un análisis de comportamientos institucionales (MINUGUA 2000), p. 56.
[43] MINUGUA, Eighth Report, para. 72 (criticizing this abuse, and citing statistics from the Constitutional Court for 1996 and 1997 indicating that approximately 4 out of 5 amparo applications are dismissed); see also, David Arias and Fredy Valiente, “La justicia en el banquillo,” Crónica, 22 Jan. 1999.
[44] See Report of the UN Special Rapporteur, supra, at paras. 98-100 (reporting the results of interviews with the President of the Supreme Court, Constitutional Court and a representative of the General Supervision of Tribunals, confirming that judges were transferred without their consent, and without being heard).
[45] See, IACHR, Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, April 24, 1997, at ch. III.
[46] Report of the UN Special Rapporteur, supra, at para. 139.
[48] See, for example, id., at para. 97 (reporting the results of an interview with the Attorney General in which he indicated that there were simply no resources to make such protection effective).
[49] See ch. I, supra; see also, ch. VI.C.
[50] Fundación Mack, Hechos que afectan la independencia judicial y la administración de justicia en Guatemala: Amenazas, intimidaciones y atentados contra jueces, fiscales y abogados (1999), p. 13.
[51] Christa Bollmann, “Entrevista con la juez Flor de María Villatoro, jueza instructora del caso Gerardi,” Siglo Veintiuno, Magazine 21, 28 May 2000.
[52] See, e.g., Ramón Hernández, “Amenazan a jueces en Xela,” Prensa Libre, 11 Feb. 1999 (reporting death threats against the three magistrates of the Seventh Chamber of the Court of Appeals seated in Quetzaltenango, and the remarks of the President of that Chamber that they had been subject to constant threats and intimidation in relation to well-known cases against former military agents as well as criminal gangs); Ramiro González and Julio Lara, “Liberan a jueza en Baja Verapaz,” Prensa Libre, 24 Sept. 1999 (reporting on the release of a judge and three others taken hostage by a local mob, in spite of the presence of a police escort, while effectuating a judicial measure in a land case, with a possible connection to the sentencing of three former PAC members in the case of the massacre of Rio Negro; the hostages were beaten and threatened with being burned alive).
[53] Fundación Mack, Hechos que afectan la independencia judicial y la administración de justicia en Guatemala: Amenazas, intimidaciones y atentados contra los operadores de justicia (2000), p. 1.
[54] Fundación Mack, Hechos que afectan la independencia judicial y la administración de justicia en Guatemala: Amenazas, intimidaciones y atentados contra jueces, fiscales y abogados (1999), table 1.
[55] Report of the UN Special Rapporteur, paras. 36-37, 44.
[56] See e.g., Equipo Investigador, “Secuestros, Víctimas no se amedrentarán,” Siglo Veintiuno, 17 Apr. 1998 (reporting threats against kidnapping victims and/or family members in the González, Corzo De la Cerda, Zimeri-Gabriel, Muñoz-López, Reyes Palencia, Robles and Ramazzini cases, in reprisal for pursuit of justice); “Coatepeque: Asesinan a querellante adhesivo,” Siglo Veintiuno, 28 May 1998 (citing local police chief indicating victim had been murdered in revenge for pursuing justice in the case of the rape of his 13 year old daughter); Marco Tulio Trejo, “Ministerio Público: Investigan muerte de cuatro testigos,” Siglo Veintiuno, 18 June 1998 (reporting investigation of the deaths of Estuardo Mota González, Carlos Iglesias Paz, Socorro Augusto Santizo Vargas and Mario Humberto Sosa Vargas).
[57] See generally, the reports of the Fundación Mack cited at notes 50 and 53, supra (reporting on the range of acts); see also, Oneida Najarro and Raúl Matías, “Envían bomba a jueza,” Prensa Libre, 13 Feb. 1999 (reporting receipt by Judge Miriam Maza Trujillo of the Second Court of Criminal Instance in El Quiché of package containing fragmentation grenade that did not explode); Ramón Hernández, “Asesinan a juez de Conexión Alemana,” Prensa Libre, 27 May 1999 (reporting on murder of Judge Heberto Zapata, President of the Sentencing Tribunal of Izabal, who had been seized of a case concerning a narcotrafficking network) and Ramón Hernández, “Amenazan a juez de Izabal,” Prensa Libre, 26 Aug. 1998 (reporting threats against Judge Zapata, and concerns about security). In other cases, prosecutor Shilvia Jérez was killed in 1998 in apparent connection with the case of a gang of kidnappers, and an auxiliary prosecutor was killed in July of 2000. See generally, “Fiscal renuncia por temor a la banda Agosto Negro,” Siglo Veintiuno, 2 July 1998 (reporting resignation of prosecutor investigating Jérez killing); “Matan a fiscal auxiliar de Poptún, Petén, Prensa Libre, July 12, 2000.
[58] See, Report of the IACtHR 1999, OEA/Ser.G, CP/doc. 3285/00, 23 March 2000, at appendices; Report of the IACtHR 1998, OEA/Ser.G, CP/doc.3169/99, 9 March 1999.
[59] Report of the UN Special Rapporteur, para. 142.
[60] Comisión de Fortalecimiento de la Justicia, pp. 47, 49.
[61] Elder Interiano and Oneida Najarro, “Cien denuncias contra un juzgado por anomalías jurídicas,” Prensa Libre, 15 April 1999. There is a reference to this court in chapter VII infra concerning subsequent positive efforts to correct this and other problems.
[62] Asamblea de la Sociedad Civil, supra.
[63] IACtHR, Case of Loayza, Reparations, supra, para. 170.
[64] Id., citing Case of Paniagua Morales et al., Merits, Judgment of March 8, 1998, Ser. C No. 37, para. 173.
[65] Report of the UN Special Rapporteur, para. 144.
[66] See, e.g., Asamblea de la Sociedad Civil, supra; Report of the UN Special Rapporteur, paras. 48-59, 141, 144-45; MINUGUA, Eleventh Report, paras. 57, 59.
[67] Report of the UN Special Rapporteur, para. 145.