University of Minnesota

Report on the Situation of Human Rights in Guatemala, Inter-Am. C.H.R.,
Doc. 21 rev. (2001).




Introduction and Overview of the Situation

1. The right to life plays a role of central importance in the regional human rights system as the essential basis for the realization of all other rights. The signing of the peace and process to implement the peace accords have provided indispensable elements to enhance the observance of this right in Guatemala. In the first place, the conclusion of the armed conflict signaled the end of a pattern and practice of extrajudicial executions, massacres and disappearances as a direct tool of State policy. Given the cost of the conflict in terms of lives and human suffering, with some 200,000 people having been killed or disappeared, its conclusion is an act of inestimable importance for the protection of human rights. In the second place, the Comprehensive Agreement on Human Rights establishes the commitment of the State to strengthen the institutions and mechanisms for the protection of fundamental rights, including through the implementation of critical reforms to, inter alia, the administration of justice. The strengthening of systems for safeguarding rights at the national level is an ongoing process, one which is crucial for enhancing the observance of the right to life and other fundamental rights.

2. Within this process, citizen security remains one of the most pressing issues for the population. There is intense popular dissatisfaction with the vulnerability many Guatemalans feel, coupled with the perception that the institutions charged with administering justice are incapable of providing it. In fact, reports suggest that fewer than 10% of violent homicides reach the courts, and even fewer are actually tried.[1] Deficiencies in the administration of justice mean that the legitimate demands of the populace for protection and accountability are not met. In a system that does not ensure prompt and effective investigation, prosecution and punishment, neither the rights of victims nor of presumed suspects can be duly respected and protected. Thus, as is emphasized throughout this report, the State’s commitment to strengthening the administration of justice must be given priority.

3. There are signs that some advances are being realized in relation to the right to life. Reports dealing with the period from 1998 through the present are encouraging in documenting a downward trend in the number of violations of this right.[2] For example, a comparison of MINUGUA’s report covering the period from January through November of 1999 (13 executions and 4 attempted executions) to a previous report covering from July of 1997 through March of 1998 (28 extrajudicial executions and 42 attempted executions linked to state agents)[3] shows a marked decline in violations.[4] Because these reports refer both to violations denounced during the reporting period and those denounced during previous periods, they do not precisely reflect the situation at a given moment, but they do provide a useful indication. Yearly figures released by the Ombudsman for Human Rights also show a quantitative decrease in investigations of these type of violations. His Office reported 16 complaints in 1999, as compared with 32 in 1998.[5]

4. However, MINUGUA’s most recent report, covering the first half of 2000, confirms an increase in extrajudicial executions and attempted executions (26 and 9 respectively) relative to the previous period, although the overall trajectory of denunciations and violations concerning the right to life continues to show a decline.[6] While violations were attributed during previous periods primarily to the National Police, army and municipal authorities, in its most recent report, the Mission noted an “alarming increase” in the number attributed to members of the National Civil Police.[7] These include cases of persons taken into custody who later appeared dead, the illegal use of service weapons by off-duty agents, and the excessive use of force. As will be discussed below, MINUGUA and other sources have also documented violations of the right to life by illegal armed groups, such as former military commissioners and PAC members in certain areas of the country.

5. While the methodology of the nongovernmental organizations working in this sphere varies in terms of how violations are defined and reported, recent reports have called for increased attention to the right to life. The Mutual Support Group (Grupo de Apoyo Mutuo “GAM”) reported an increase in violations, indicating that they had registered 22 extrajudicial executions during the first six months of 2000, the majority involving torture. The organization reported having registered 35 extrajudicial executions during 1999. FAMDEGUA reported receiving information concerning 43 extrajudicial executions during the first five months of 2000.[8] Many of the executions reported were alleged to stem from acts of “social cleansing.” Entities working in this sphere, including the Ombudsman for Human Rights, ecclesiastical groups, and many NGO’s have expressed special condemnation with respect to the continuing phenomenon of lynchings.

6. The persistence of such grave violations raises special concern. The analysis which follows addresses: lynchings and crimes of social cleansing, the excessive use of force and extrajudicial executions attributed to State agents, and isolated cases of forced disappearances. The Commission then highlights a number of considerations with respect to the right to life and the application of the death penalty. The chapter concludes with a series of final observations and recommendations designed to assist the State in its efforts to enhance respect for this most basic of rights.

A. The Legal Framework for the Protection of the Right to Life and Humane

1. National Law

7. The Constitution is premised on the duty of the State to protect the individual, the family, and the common good, as established in Article 1. Pursuant to Article 2, the State is responsible for protecting essential individual rights, including the right to life, and Article 3 specifies that the State guarantees the right to life from conception, as well as the integrity and security of the person.

8. Within the framework of the human rights accord, in addition to the commitment to strengthen institutions and mechanisms for the protection of human rights referred to above, there are two provisions of special relevance to the protection of the right to life. First, the accord establishes the need for firm action against impunity, and the commitment of the State to sponsor legal reforms to the Criminal Code to ensure that forced disappearances and extrajudicial executions are characterized as crimes of particular gravity and punished as such. Second, it indicates that “[I]n order to maintain unlimited respect for human rights, there must be no illegal security forces nor any clandestine security machinery,” and affirms that the State shall combat any manifestation thereof.

9. Guatemalan law provides for the judicial imposition and application of the death penalty as the sentence for certain crimes. Article 18 of the Constitution sets limitations on its exercise. This penalty cannot be imposed on the basis of presumptions, and cannot be carried out against women, or persons over 70 years of age, convicted of political crimes or related common crimes, or whose extradition was granted on the basis that this penalty would not be imposed. All pertinent legal recourses will be admitted against the imposition of this penalty, and it may only be carried out after those have been exhausted. Congress has the authority to abolish the death penalty. The categories of crimes to which this punishment may be applied are specified in the Criminal Code. As will be discussed below, of special note in this regard are the reforms to that Code that extend the application of this penalty to crimes for which it did not previously apply.

2. International Law

10. The American Convention guarantees the right to life in Article 4(1), which provides that: “Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.” The right to life is a peremptory norm under international law, and, as set forth in Article 27 of the Convention, may not be derogated from under any circumstance.

11. Provisions 4(2) through 4(6) regulate the application of the death penalty. Article 4(2) provides for its imposition only for “the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime.” Further, this penalty may not be extended to crimes to which it did not apply at the time of ratification of the Convention. Article 4(3) stipulates that, once abolished, the penalty may not be reestablished. Provisions 4(4) and 4(5) indicate that the penalty may not be inflicted for political offenses or related common crimes, and may not be imposed on persons who were under 18 or over 70 years of age at the time of commission of the crime, or on pregnant women. Pursuant to Article 4(6), every person condemned to death has “the right to apply for amnesty, pardon, or commutation of sentence,” and the penalty may not be carried out during the pendency of a decision by the competent authority.

12. In relation to the issue of disappearances specifically, Guatemala became Party to the Inter-American Convention on Forced Disappearance of Persons on February 25, 2000. The Commission applauds this advance, and analyzes the reservation formulated at the time of ratification below.

13. Other instruments with special relevance to the right to life include the ICCPR, to which Guatemala is a Party, and the internationally accepted Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, the Safeguards guaranteeing protection of the rights of those facing the death penalty, the Code of Conduct for Law Enforcement Officials, and the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, all adopted within the framework of the United Nations.

B. Lynchings

1. The Characteristics of the Phenomenon

14. One of the most serious situations affecting the right to life over the last several years has been the phenomenon of lynchings and attempted lynchings. This form of raw violence and aggression bears an important relation to the harsh and even cruel conditions of life that characterize the areas most affected. The lack of an effective response by the judiciary effectively signals to the population that “popular justice” is an acceptable alternative to the rule of law and due process. This is a matter of the gravest concern for the entire population, as the characteristics and persistence of these attacks represent a challenge to the rule of law and the process of consolidating participatory democracy in Guatemala. The State echoed this concern in its observations on the draft report.

15. From 1996, when this practice became pronounced, to mid-2000, MINUGUA registered 310 lynchings or attempted lynchings. In a lynching, mobs of up to hundreds or thousands of local people converge on a suspected delinquent or hunt the person down in their home. The targeted individual is usually tortured prior to being killed for the purpose of forcing him or her to reveal the names of presumed accomplices. The victims -- mostly men, but including women and children -- have been beaten, hacked and stoned to death, shot, and burned alive.

16. A substantial number of these lynchings have been reported in detail, because neither the presence of local authorities nor of outside observers, including the press, have deterred those responsible. The paradoxical characteristic of a lynching is that the participants purport to act in the name of justice while committing particularly reprehensible violations of the law. As indicated, victims have included children, as young as ten years old, and people who were simply in the wrong place at the wrong time. There have been repeated instances of lynchings on the basis of mistaken identity.

17. To provide a concrete example of a lynching, in the early morning hours of May 18, 1999, a mob of up to 3000 locals captured 5 alleged members of a gang from their home in Chutzaré, Santa Lucía La Reforma, Totonicapán. The mob interrogated their captives for hours, beat them and forced them to name other presumed accomplices, doused them with gasoline, burned them alive, and then buried the bodies. Local authorities, 120 members of the National Civil Police and the Army, and representatives of the Public Prosecutor’s Office, MINUGUA, the Office of the Ombudsman for Human Rights and COPREDEH arrived in the area after the killings, and were given two minutes to leave or receive the same treatment. It took the authorities a day to gain access to recover the bodies.[9]

18. The Mission reported 34 lynchings or attempted lynchings in 1996, 78 in 1997, 66 in 1998, and a marked surge in 1999, with 108 such cases. Reports for the first half of 2000 indicated 24 such cases, a significant decline from the previous period. Press reports for July through September of this year indicate over a dozen additional deaths from lynchings. As a result of these mob attacks, at least 142 individuals have been killed, and an unknown number injured, according to the reports of the Government itself. Lynchings or attempts have been registered in at least 20 Departments. El Quiché, Guatemala, and Alta Verapaz have been especially affected, followed by Huehuetenango, Petén, Sololá, Chimaltenango, San Marcos, Totonicapán and Quetzaltenango.

19. The majority of lynchings have taken place in rural areas -- from 85 to 90% of the cases reported.[10] While the practice is primarily rural, an important number of these attacks have taken place in the Department of Guatemala. From 64 to 75% have taken place in primarily indigenous communities.[11] From 27 to 21% have taken place in ladino communities, and the small remainder in mixed communities.[12] This does not mean, as has been erroneously suggested by some sources, that the practice has its roots in indigenous customary law. To the contrary, one of the recommendations to overcome it is the recuperation of traditional indigenous methods of conflict resolution.[13]

20. Lynchings have been concentrated in zones of greater poverty and lower indicators of human development, and in the areas most affected by the internal conflict and counterinsurgency strategies.[14] Such areas are characterized by the absence or scarcity of State institutions charged with administering justice, which are viewed in any case as having little or no legitimacy. The population accordingly is and perceives itself to be unprotected against threats to its wellbeing. In press reports about lynchings, locals are often quoted as referring to the failure of the police and judiciary to act against crime and gangs as the impetus for their action. One member of a mob was quoted in this regard as stating that “the problem is between the community and these criminals.”[15]

21. In some cases, groups have presented ultimatums to national authorities to the effect that action against crime is not taken within a certain time period, they will take matters into their own hands. In September of 1999, for example, members of 26 cantons in Zacualpa, Quiché, presented a communicaction to the local office of the Ombudsman for human rights expressing their frustration with the failure to arrest members of the gang known as The Specialist, and indicated that if the authorities did not act within 15 days, they would. Five alleged members of this gang had been lynched the week before.[16] As MINUGUA has warned, the result of these factors is a tendency to resort to models of force and authoritarianism to resolve conflicts.[17]

22. While it is often assumed that lynchings represent a spontaneous local reaction to a particularly grave crime that has gone unanswered by the institutions responsible for enforcing the law, analysis indicates that other factors must be taken into account. In the first place, many lynchings correspond to situations that don’t present a grave objective threat to the wellbeing of the community. In tracking lynchings during 1999, MINUGUA confirmed that 58 of the 90 registered arose in connection with crimes against property, including robbery and extortion.[18] Most involved goods of relatively little economic value. Eight corresponded to situations of greater gravity and impact: three in relation to alleged killings, three to rape, and two to kidnappings.[19] The remainder were linked to diverse causes ranging from traffic accidents, to the selling of unlicensed liquor to the alleged practice of witchcraft.[20]

23. In the second place, lynchings are not always spontaneous. Of the 90 cases tracked by MINUGUA during 1999, 28 apparently arose as a spontaneous reaction to the alleged commission of a crime. In 38 cases, the Mission confirmed that the attacks were organized and planned ahead of time. In the remaining cases, it was unable to make a definitive determination. In a number of the instances confirmed to have been planned, responsibility has been attributed to the structures that exercised power and control at the local level during the armed conflict, in particular, former military commissioners and members of the PAC’s. MINUGUA has cautioned that there are indicia that some of these attacks have been planned to incite violence and destabilization on a larger scale for political ends.[21] The then-Minister of Interior acknowledged in 1999 that the reorganization of former PAC members appeared to be influencing the practice of lynchings in the west. He observed that approximately a million and a half individuals had served in the PAC’s during the conflict, and had become accustomed to establishing and applying their own law.[22]

24. It must also be noted that the threat of lynching has also been used against local authorities to obstruct justice. For example, there have been reports of mobs threatening police officials or justices of the peace attempting to enforce arrest warrants against persons involved in lynchings. Mob action has also been used to free suspects in detention, as was the case when hundreds of locals stormed the jail in April of 1999 and violently liberated the 12 former PAC members sentenced in connection with the “Colotenango” case.[23]

25. In August of 2000, the Episcopal Conference of Guatemala issued a press communique reiterating its concern with respect to the climate of violence and impunity, manifested in the persistence of lynchings. The Conference emphasized that lynchings impede possibilities for developing peaceful communal coexistence, which in turn strengthens impunity.[24] In another communique, the Catholic Church indicated that these lynchings and other types of violence were being provoked by the reactivation of the paramilitary groups of the past, and called for the strengthening of legal responses and greater political will to combat this practice. Most recently, following the lynching of Justice of the peace Alvaro Hugo Martínez on March 13, 2001, in the municipality of Senahú, the Supreme Court of Justice issued a statement affirming that:

[t]hese kinds of acts committed by mobs reflect the culture of violence of the instigators, who utilize and arouse the sentiments of local inhabitants to the point of committing outrages against, not only supposed criminals, but as in this case, an administrator of justice. These acts outside the law violate the rule of law and affect the social peace in Guatemala. ….

[And for this reason the Court] requests the Prosecutor’s Office to carry out the corresponding investigation, in order to pursue criminal prosecution …, completing that prosecution so that this illegal act does not remain in impunity.

[And the Court r]equires that the executive branch provide the security guarantees necessary so that the important service of justice that the population demands may be provided, and thereby achieve the consolidation of the regime of legality, liberty and peace to which all the inhabitants of the Republic have a right.

2. The Response of the State

26. The overall response of the State in the face of these reiterated violations of the right to life has been profoundly insufficient. Notwithstanding the duration and intensity of this situation, until recently, there were no reports of comprehensive steps by the national authorities to prevent and counter these crimes. As far as the Commission is aware, neither the institutions of law enforcement nor the judiciary have carried out a comprehensive study to track statistics, diagnose the problem and identify specific solutions.

27. Finally, in 1999, in the face of the startling increase in lynchings, the Unit for the Modernization of the Judiciary, the Ministry of Education and the National Civil Police, working with the collaboration of MINUGUA, initiated a campaign of civic education and prevention training directed at civil, police and community authorities.[25] This has included specialized training activities in the National Civil Police Academy, as well as activities for members of the police, the Public Prosecutor’s Office and the judiciary, including locally in the areas of Quetzaltenango and Cobán, regions especially affected.[26] The Magistrate who coordinates the Unit for the Modernization of Justice has indicated that this campaign has had a significant impact in the areas reached.[27] The Commission recognizes this initiative as an important first step in preventing violations of the right to life, and calls for it to be amplified and extended to all affected areas. According to the information provided by the State in response to the draft report, in September of 2000, the Ministry of the Interior initiated a campaign against lynchings. This included “giving awareness talks and distributing 500 handouts in the seats of the police comisarías in the most conflictive areas … in order to encourage the civilian population to trust in their authorities and denounce the persons committing criminal acts of this nature.”

28. The response of the authorities charged with responding to lynchings at the local level has been mixed. In an important number of cases, the intervention of such authorities, most especially the National Civil Police, has played an invaluable role in responding to crises as they unfold, and utilizing dialogue to negotiate with mobs to obtain the release of the victims and avoidance of bloodshed. In 1999, for example, MINUGUA tracked 37 cases of attempted lynching in which such action played a crucial role, particularly where those involved were able to develop a dialogue in the local indigenous language.[28] The Commission recognizes and highly values such action, particularly given that in many cases the authorities concerned acted at substantial personal risk. There have been numerous reports of mobs intent on lynchings threatening anyone in their way, including national and local authorities, as well as outside observers. These agents have demonstrated outstanding courage and commitment to protecting the citizenry and upholding the law.

29. There have also been cases where cooperation between local authorities and the community resulted in the satisfaction of community demands and compliance with the law. A report from August of this year indicated that inhabitants of Montemercedes, Sololá witnessed the attack and attempted rape of a local woman. A group of citizens detained the individual in flagrante, without resort to violence, and immediately alerted the National Civil Police, which arrived on the scene promptly. The victim was immediately taken to a local hospital, and the suspect to the local police station to initiate the proper legal proceedings.[29]

30. However, the foregoing cases remain exceptional. In most cases, the reaction of local authorities ranges from indifference to tacit support, and has even included participation. Further, once a lynching takes place, there is little effort to investigate or prosecute those responsible. Reports indicate, for example, that following a particularly notorious lynching in Todos Santos Cuchumatán, Huehuetenango, in April of this year, that left a Japanese tourist and the Guatemalan driver of a tour bus dead, the then-Director of the local National Civil Police made public the names of those who were to be arrested prior to the issuance of the orders. Only 9 of the 19 persons subsequently ordered arrested could be found.[30] In the case of lynchings in August of this year in Tunujá I, Zacualpa, and Tunujá II, Joyabaj, Quiché, orders to arrest the perpetrators were judicially suspended at the request of the Public Ministry. Among the reasons given were the control and support enjoyed by the perpetrators, and the impossibility of carrying out the arrests and prosecution in the conflictive environment in Zacualpa following the killings.[31]

31. Judicial action has yet to yield effective results. In 1999, for example, in the face of lynchings averaging two a week, only two judicial sentences convicting participants of responsibility were reported. The one of the two that reached finality concerned the lynching of two women in 1997, in which one victim was left dead and the other gravely wounded. MINUGUA reported that this was the only final sentence imposing responsibility for a lynching that it had observed since its began tracking these crimes in 1995.[32] Press reports thus far in 2000 indicate that several other decisions at first instance have been handed down against participants in lynchings. In one case, one perpetrator was sentenced to 50 years in prison, and two others to 33 years, for the lynching of five individuals in Comitancillo, San Marcos in 1997. In another case, four persons were sentenced to 41 years in prison for the killing of two individuals in January of 1999 in Raxujá, Chisec, Alta Verapaz. In its response to the draft report, the State offered updated information to the effect that the courts had “issued 19 condemnatory sentences: 6 in Quiché, 1 in Guatemala, 3 in Sololá, 4 in San Marcos and 5 in Totonicapán.” It is hoped that these sentences will serve as a basis for moving forward with investigation, prosecution and punishment in other cases.

C. Social Cleansing

32. While it is sometimes difficult to distinguish crimes of social cleansing from other types of killings, over the last two years there have been regular reports of bodies found bearing the hallmarks of social cleansing. In such cases, the victim’s bodies are found with their hands and feet tied, bearing signs of torture and the coup de grace. In some cases, their throats are cut, or the bodies are even decapitated. The victims are targeted. Many are reputed to have been criminals or linked to criminal gangs, there have been a number of reports concerning the finding of bodies of reputed homosexuals and prostitutes, and there continue to be periodic reports of action of this nature against street children.

33. Human rights and other organizations have indicated grave concern about a return to such “violations of the past.” In May of this year, the Episcopal Conference of Guatemala issued a press communique expressing concern about a spate of recent killings which appeared to indicate a practice of social cleansing.[33] In June, FAMDEGUA expressed its concern with reports of 43 extrajudicial executions during the first half of 2000, in which the majority of the bodies were found bearing signs of torture and the coup de grace.[34]

34. In its most recent report covering December of 1999 through June of 2000, MINUGUA manifested special concern with respect to the involvement of agents of the National Civil Police in crimes of social cleansing. The Mission referred, for example, to a series of executions of reputed gang members whose female leader, also executed, had allegedly been involved with a high ranking member of the National Civil Police. Seven alleged members of the gang had been executed with extreme violence under circumstances indicating an operation of social cleansing with the participation of agents of the National Civil Police. The Mission also referred to an illegal group in Escuintla that had been carrying out social cleansing activities, and had been linked to the local National Civil Police and a former military commissioner. Spokespersons for the National Civil Police and other authorities have rejected the possibility of the participation of State agents in the killings, pointing in the first place to the additional training now received by such agents, and in the second place to the existence of conflicts between gangs and killings related to organized crime as the true origin.

35. Reports concerning such killings have not been isolated to Guatemala City or to the police forces. Over the past two years, MINUGUA has confirmed the existence of illegal security forces linked to municipal authorities, including certain mayors, and in the service of private individuals that had carried out social cleansing operations.[35] These groups were described as including “former members of intelligence agencies, public security forces or paramilitary or para-police groups.” “They are often used for criminal purposes and carry out acts of intimidation, physical elimination of individuals and `social cleansing’ operations.”[36]

36. In April and May of 1998, four men were executed in separate incidents in Gualán, in the Department of Zacapa. MINUGUA confirmed that residents had collected money to pay for the executions of these men reputed to have been gang leaders, with the tacit approval and even involvement of local authorities.[37] The final victim had complained to the Public Prosecutor’s Office about death threats received from the chief of the local National Police substation. The Prosecutor’s Office had summoned him to appear, but had transmitted the summons through that very police substation. The victim was killed by unknown persons while on his way to that appointment. The investigation opened by the Prosecutor’s Office had made little progress at the time of the report.[38]

37. MINUGUA documented a series of killings in the municipality of La Libertad, Petén in 1998.[39] Its reports indicated that, pursuant to the disbanding of the local PAC’s in 1996, a number of former military commissioners, lead by Alfredo López and Maximiliano Trujillo Duque, had formed a “Committee of Vigilance” and initiated a “cleansing plan” for the zone. The killings began after a list of “persons condemned to death” for being bandits had been circulated.[40] Those named were killed one after another. A note was found next to one body, indicating “… this has to be done because it is our job to cleanse the communities….” Apart from targeting reputed delinquents, the group had been consolidating its economic and political control in the area, and some of the victims had simply interfered with those plans. MINUGUA listed at least 19 murders attributed to the group. Family members were threatened to refrain from attempting to protect persons named on the list, and were terrorized to the point that some did not even attempt to claim the victims’ bodies.

38. MINUGUA characterized the group as maintaining close links to the army, with serious indicia that the latter was aware of and tolerated its activities. The response of the Public Prosecutor to the killings was initially characterized as indifferent. Following the insistence of several family members and the ongoing verification of MINUGUA, the Public Prosecutor and the National Civil Police realized advances in one case that lead to the detention of the two leaders in relation to that murder. Shortly thereafter, two individuals who identified themselves with the local military zone inquired about the case with the National Civil Police and indicated that they would be pursuing a vigorous defense of the accused. The accused were subsequently ordered released, and the criminal processes against them were provisionally dismissed and revoked, respectively. Those decisions had been appealed by the Public Prosecutor.

39. The Commission views such killings with grave concern, and shares the preoccupation of the sectors that have rejected this “violation of the past.” The Commission periodically reported on and condemned such violations at different points in the armed conflict. In fact, it referred the case of Villagrán Morales, also known as the case of the “Street Children,” to the Inter-American Court of Human Rights to address the killing of five young boys in 1990 linked to a pattern and practice of violations of social cleansing and other persecution against street children by National Police agents.

40. Cases of social cleansing are related to lynchings in that both stem in part from the weakness of the institutions charged with providing security and fighting crime. In the absence of effective law enforcement and judicial responses to crime during the armed conflict, the institutions that exercised control and took action at the local level were often the military and paramilitary organizations, namely military commissioners and the PAC’s. Because the institutions of the State remain very weak in certain areas, the paramilitary actors of the past are in some cases continuing to exercise power illegally.

41. The persecution and extermination of individuals linked to targeted groups, such as supposed delinquents, or street children or homosexuals is a particularly reprehensible violation of the right to life and humane treatment, and has repeatedly been condemned as such by the Commission.[41] The failure of the responsible authorities to apply due diligence to investigate, prosecute and punish such crimes is a key factor in their persistence. It is of particular concern that in the cases where any investigation has been undertaken, reports indicate no effort to link the crimes to others that fit within a common modus operandi.

D. The Arbitrary Deprivation of Life by State Agents in Custodial Situations

42. Reports over the last two years from MINUGUA and other sources have linked members of the National Police, National Civil Police and army with deaths resulting from inhumane treatment in custody or the excessive use or abuse of force, and isolated reports of cases in which the bodies of persons taken into custody later turned up abandoned.

43. With respect to abuse in custody, for example, MINUGUA makes special reference in its report for 1999 to cases in which it confirmed that persons detained for drunken and disorderly conduct arrived at a hospital dead or died shortly thereafter as a result of beatings at the hands of police while in custody.[42] It describes the cases of Eliseo Rivera Padilla, José Martín Reynoso, Juan José Arguello and Rodrigo Larios, who died in separate incidents fitting these characteristics in 1999.[43] The cases are also similar in that the proper procedures for detention were not followed when the men were arrested, and the processes to investigate the deaths were marked by irregularities and coverups. As of the end of 1999, two of the cases remained pending before the judiciary, one had been dismissed, and there was no information as to the status of the fourth.

44. The case of José Martín Reynoso is representative. He was detained on February 14, 1999 while under the effects of alcohol and without identification. He was taken to the National Civil Police station in Poptén, but was not registered. Shortly thereafter, police agents took his lifeless body to the local hospital. The forensic report recorded a hematoma from blunt force, and scrapes, but was characterized as deficient in relation to the cause of death. MINUGUA indicated that the Public Prosecutor failed to investigate the marks on the body, failed to take statements from witnesses to the arrest (who described to MINUGUA how police officers beat the victim with a rifle), and failed to investigate why the private prosecutor withdrew from the case (when interviewed by MINUGUA, she explained that relatives of the officers had given her money). At the request of the Public Prosecutor, the local court had dismissed the case.[44]

45. The Ombudsman for Human Rights has investigated and reported on a number of unexplained deaths in various prisons, which raise special issues concerning the measures in place to safeguard the rights of persons in custody. These issues are treated in chapter VIII concerning the rights of persons detained in the prison system.

46. There have also been isolated reports of cases in which the bodies of individuals known to have been detained have appeared abandoned.[45] For example, MINUGUA reported that on the night of December 3, 1999, two witnesses saw agents of the National Civil Police detain Gabriel García González on the road between Escuintla and Palín.[46] Afterwards, however, he could not be found in any police station. On December 14, 1999, his body appeared in an area close to where he had been detained. His head, severed from his body, bore the coup de grace. The Office of Professional Responsibility of the National Civil Police identified the agents on duty at the time of the detention, as well as those responsible for supervising the patrols. As of eight months from the facts, however, all agents concerned continued working normally.[47]

E. Excessive Use of Force and Abuse of Authority

47. The Commission has before reports on a series of deaths resulting from the shooting of unarmed individuals, some at point-blank range, under circumstances where the sources indicate that deadly force was unwarranted. The case of Santiago Rafael Ruiz provides an indicative example.[48] On February 20, 1999, two agents of the National Civil Police of Guatemala City were pursuing two suspects alleged to have just robbed a bus. The suspects ran into a shop, whereupon one of them threw a gun behind the counter. The officers arrested the suspects, and also arrested Mr. Ruiz, who was in the store shopping, and put all three in a patrol car. Witnesses heard two gunshots, and saw Ruiz’ face covered with blood. The detainees were taken to an area about a kilometer away, where witnesses saw the officers hit Ruiz. Those witnesses were threatened and told to leave, but heard more gunshots, and saw other police units arrive. Mr. Ruiz was taken to a hospital and died. In initial reports, the events were presented as a confrontation between two gangs. Following an investigation by the Office of Professional Responsibility, the officers were suspended and placed before a court.[49]

48. Over the last 15 months, the following situations have been reported by MINUGUA. José Antonio Landaverry was drinking with two other men in the bus terminal in Chiquimula when two police inspectors approached, and one ordered him to put his hands up, and shot and killed him with a submachine gun.[50] Héctor Alexander Aldana Estrada was sitting in his car with his girlfriend speaking on a cellular phone when three agents of the National Civil Police of Zacapa approached in a patrol car, and one opened fire and killed him.[51] Denis Fredy Cucul Tun was under the effects of alcohol on April 19, 2000, and exchanging words with officers of the National Civil Police of Cobán about his vehicle, which was improperly parked, when one of the officers took him across the street, held him against a wall and shot him at point blank range.[52] In each instance, the police report claimed that there had been a struggle and a situation of self- defense, and in each instance, witnesses and/or the autopsy reports confirmed that this was not the case. Other examples from this period include Manuel de Jesús Ortega, a Salvadoran who was shot and killed while trying to escape a National Civil Police patrol pursuing a group of undocumented aliens[53] and minor Elvin Enrique Ochoa Barrios, shot and killed when a National Civil Police patrol pursued and shot at the car he was riding in because the driver failed to pay a toll.[54] In every case with respect to which MINUGUA provided information about the efforts of the Public Prosecutor to investigate, serious deficiencies were reported.

49. In some cases, MINUGUA confirmed that members of the security forces abused their authority and utilized their service weapons illegally, including while off-duty, to threaten or attack individuals. For example, on February 22, 2000, waiter Obdulio Israel Funes Vásquez was shot and killed after he picked up a bullet that fell when a drunk officer of the National Civil Police of Guanagazapa was loading his rifle in a nightclub.[55] On January 20, 1999, Claudia Carillo was shot and killed by an agent of the National Civil Police of La Libertad, Petén, after he had repeatedly tried to threaten and force her to have sex with him, and she continued to refuse.[56] MINUGUA confirmed that the officer had abused his authority and weapon to threaten the victim and her family on many occasions, and that other officers who had witnessed these incidents had done nothing to stop him.

50. State agents may be empowered by the State to utilize force when strictly necessary and to the extent necessary for the effective compliance of their legitimate duties. This is the clear standard set in the UN Code of Conduct for Law Enforcement Officials, which serves as an authoritative and internationally recognized guide for the use of such force. As the commentary to the Code explains, this means that, first, the use of force must be regarded as exceptional, to be used only where “reasonably necessary under the circumstances for the prevention of crime” or to effectuate a lawful arrest of a suspected offender. Second, such force may only be applied when proportional to the legitimate objective to be applied. Third, the use of firearms is an extreme measure, and should be avoided if at all possible, especially in relation to minors. The Code specifies that they “should not be used except where a suspected offender offers armed resistance or otherwise jeopardizes the lives of others and less extreme measures are not sufficient.” These are minimum standards the State and its law enforcement officers must uphold to safeguard the right to life under Article 4 of the Convention.

F. Forced Disappearance

51. The Commission wishes to emphasize the gains that have been made in combating this especially repugnant violation of human rights and dignity. While the Commission reported on many such violations during the conflict, and continues to process a reduced number of cases dating to that period, the situation has experienced a radical improvement that merits due recognition.

52. The State realized a further crucial advance in becoming a Party to the Inter-American Convention on Forced Disappearance of Persons through the deposit of its instrument of ratification on February 25, 2000. This instrument expresses the commitment of the Parties to prevent, punish and eliminate this crime, characterized as an affront to the conscience of the hemisphere and a grave offense against human dignity. The Commission greatly values this step forward in eliminating this violation.

53. It is, however, lamentable that in undertaking this commitment, Guatemala became the first Party to ratify the treaty subject to a reservation. The reservation is to the application of Article V, which stipulates that forced disappearance shall not be considered a political crime for the purpose of extradition, and shall be deemed to be an extraditable offense under existing and future agreements between States Parties. The reservation indicates, opaquely, that it is due to Article 27 of the Constitution -- which provides that extradition proceedings shall not be instituted against Guatemalans for political crimes, and that they shall not be handed over to foreign governments except as provided for in treaties concerning crimes against humanity or international law – and further indicates that at present there is no domestic legislation governing the matter of extradition. The reservation is neither clear, given that the crime of forced disappearance is explicitly defined as non-political for the purposes of extradition, nor, on the face of it, consistent with the object and purpose of the Convention. The Commission calls upon the State to withdraw its reservation and to adopt the domestic legislation necessary to regulate extradition in this and other spheres.

54. While the practice of disappearance is no longer employed as a tool of State policy, there have been several isolated but highly disturbing reports of forced disappearances. Most recently, MINUGUA reported on the disappearance of Mynor Pineda at the hands of State agents.[57] On May 7, 2000, Pineda and two others were illegally detained by agents of the SIC dressed in civilian clothing in San Benito, Petén. They were tortured and interrogated about their alleged participation in a kidnapping. The two others were later placed before judicial authorities. Pineda has neither been seen nor heard from since that day. MINUGUA indicated that the information from those two individuals as well as from other witnesses was consistent in confirming that Pineda had been detained by the National Civil Police with the participation of the Criminal Investigation Service.[58]

55. The Commission shares the concern of the many sectors of Guatemalan society who have reported on the unexplained disappearance of Dr. Mayra Angelina Gutiérrez, professor of the School of Psychological Sciences of the University of San Carlos and the Mariano Galvez University. She disappeared on April 7, 2000, and nothing further is known of her fate. Because of her involvement in various social causes, and reports that three siblings were forcibly disappeared during the armed conflict, her friends, colleagues and human rights organizations in particular have expressed grave concern for her life and physical integrity. The denunciation of facts of this nature necessarily requires prompt and thorough investigation.

56. MINUGUA has confirmed that, in separate incidents on September 11, 1998, Ricardo II Figueroa Delgado and Isaac Valdés Mayén were captured by State agents.[59] Both were suspected of participation in the kidnapping of Danish pharmaceutical executive Christian Erichsen. Figueroa was captured upon reaching his home by approximately 15 individuals dressed in civilian clothing, wearing ski masks, heavily armed and carrying communications devices. He was taken in the presence of witnesses, and placed in an unmarked car.[60] A few hours later, 25 anti-kidnapping agents and 35 members of the Special Forces of the Police carried out an anti-kidnapping operation under the orders of the chief of the anti-kidnapping squad of the Criminal Investigation Service of the National Police that resulted in the liberation of the Danish businessman.[61] Valdés was seen driving away from the scene. Security officers shot at him, intercepted him, and forced him into their vehicle. Neither capture has been acknowledged by any security force. Three habeas corpus requests filed by Figueroa’s mother failed to produce any results. MINUGUA particularly noted that in the course of verifying that case it was denied entry into a military facility, in clear violation of the Comprehensive Agreement on Human Rights.[62]

57. Finally, the Commission observes that the forced disappearance that took place during the final stage of the negotiations of the peace process, that of Juan José Cabrera Rodas (“Mincho”), has yet to be clarified. The Inter-American Court and Commission have repeatedly indicated that any disappearance constitutes a continuing violation. The responsibility of the State remains engaged until it has been investigated, and those responsible prosecuted and punished, in accordance with the standards of due diligence. Each and every case of disappearance requires a definitive resolution, and Cabrera’s family and Guatemalan society have a right to clarification of the facts.

G. The Imposition and Application of the Death Penalty

58. The American Convention does not prohibit the application of the death penalty. For those member states that have not abolished it, it may be applied in strict conformity with the limitations set forth in Article 4 of the Convention. As this Article and other applicable norms of international law make clear, given the irrevocability of the penalty, it may only be imposed pursuant to a trial carried in strict accordance with all due process guarantees. The application of this penalty must be subject to the strictest scrutiny in all respects.

59. According to the information before the Commission, as of August of 2000, 30 individuals had been sentenced to death, 7 for homicide, 4 for kidnapping and homicide, and 19 for kidnapping. The majority of the sentences were in various stages of appeal. MINUGUA has closely tracked cases involving the death penalty as part of its official verification mandate, and has reported concerns about violations of substantive and procedural guarantees in at least 26 of these 30 cases. The remainder were under study.[63]

1. Recent Developments

60. During the period covered by this report, there have been a number of significant developments related to the imposition and application of this penalty. When President Portillo took office in January of 2000, he indicated that he did not wish to make decisions on petitions for clemency in death penalty cases, and that he supported initiatives in Congress to revoke Decree 159, which provided for such petitions. The Congress derogated Decree 159 several months later. The President nonetheless agreed to consider several appeals for clemency that had been pending when he assumed office.

61. Pursuant to that consideration, at the end of May of 2000, President Portillo commuted the sentence of death imposed on Pedro Rax Cucul for the crime of homicide, on the basis of serious due process concerns. The Commission had been following developments in this case for some months, and had opened case 12.244 in February of 2000 to investigate a petition claiming that Rax was mentally ill, that the judiciary had failed to properly evaluate this and take it into account in the criminal process, and that the application of the sentence of death imposed on him would consequently constitute cruel and unusual punishment. The Commission values this action on the part of President Portillo, which favors the role of due process in a state of law. The Commission continues to process case 12.244 and several other cases involving the application of the death penalty in accordance with its Statute and Regulations.[64]

62. At that time, President Portillo rejected requests for commutation in the cases of Fermín Ramírez, Amilcar Cetín Pérez and Tomás Cerrate Hernández. Ramírez had been convicted of rape and homicide, and Cetín and Cerrate of kidnapping and homicide. Cetín and Cerrate were executed by lethal injection on June 29, 2000. MINUGUA had reported confirming procedural irregularities in all three cases.[65] In its observations on the draft report, the State indicated that “it considers that in these cases the accused were provided the right of defense to guarantee their ability to contest decisions with which they did not agree. In each and every procedural stage, they were found guilty by the courts….”

63. While the derogation of Decree 159 has left the process to petition for clemency confused, it cannot be read to mean that this recourse simply no longer exists, because it is required by international law. A number of groups in Guatemala, including the National Commission for Follow-up and Support for the Strengthening of Justice have manifested the need to respect this requirement.[66] Article 4(6) of the American Convention stipulates that: "Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases.” The penalty may not be carried out while a decision on such a request is pending. The ICCPR (Article 6(4)) and the Safeguards Guaranteeing Protection of the Rights of those Facing the Death Penalty (safeguard 7) contain similar provisions. Such provisions require a last opportunity to evaluate the situation of the individual condemned in the face of an irrevocable penalty, and the Commission has indicated that there should be a procedure prescribed, encompassing certain minimum procedural guarantees, to ensure that this right can be effectively exercised.[67]

64. Recently, on October 31, 2000, the Court of Constitutionality issued a compelling sentence applying the terms of Article 4(2) of the American Convention in determining that the application of the death penalty to crimes for which it did not apply at the time the State became a party to that treaty violated its obligations under the constitution and international law. As the sentence correctly reflects, Article 4(2) of the Convention stipulates that once a State has become a party to the Convention, it may not extend the coverage of the death penalty to apply to additional crimes.[68]

65. The opinion in question examined the reforms to Article 201 of the Criminal Code adopted in 1994 (decree 38-94), 1995 (decree 14-95) and 1996 (decree 81-96), by means of which the Congress of Guatemala extended coverage of the death penalty to apply, not only to kidnappings which result in the death of the victim (the law in effect at the time of ratification of the Convention), but also to kidnappings which do not result in death, as well as to the crimes of extrajudicial execution and forced disappearance which had not been typified in domestic law at the time of ratification. According to these decrees, the death penalty is to apply to: extrajudicial executions where the victim is younger than 12 or older than 60 years of age, or when the circumstances such as the means or motive suggest the special dangerousness of the offender; enforced disappearance resulting in the death or serious injury or permanent psychological trauma of the victim; kidnapping, whether it results in the death of the victim or not; and the killing of the president or vice-president, when the offender is considered especially dangerous.

66. This legislation and the apparent conflict with the State’s obligations under international law caused confusion in some lower courts, with the resulting imposition of diverse sentences for equivalent crimes. On the one hand, some courts carefully construed the terms of Article 201 in the context of the Constitution and applicable norms of international law and imposed prison terms rather than the death penalty. For example, on May 21, 1999, the Fifth Chamber of Appeals of Jalapa granted a special appeal filed on behalf of five persons condemned to death at first instance for a kidnapping which did not result in the death of the victim. In reversing that sentence, the appellate court invoked the primacy accorded to international human rights treaties in the Constitution, the State’s duties as a Party to the American Convention and the provisions of the Vienna Convention on the Law of Treaties concerning the obligation to comply with treaty obligations in good faith. It further emphasized that the amplification of the death penalty to apply to kidnappings not resulting in the death of the victim provides no disincentive to dissuade perpetrators from killing their victims.

67. Similarly, in matter 29-98, the Third Chamber of the Court of Appeals granted a special appeal and commuted the death sentence imposed on three defendants for the crime of kidnapping not resulting in death to terms of 50 years imprisonment, and in matter 268-99 the Twelfth Chamber affirmed the 50 year prison sentence imposed in a similar case where a special appeal had been sought by the prosecution to elevate the penalty to death. The Commission recognizes and values the foregoing decisions upholding national law and international obligations for their important contribution to the process of consolidating respect for the rule of law and human rights.[69]

68. On the other hand, however, a number of courts imposed or upheld the death penalty in cases involving kidnapping not resulting in death absent due consideration of the State’s international obligations or the constitutional hierarchy accorded to such obligations. On November 26, 1999, following similar rulings by some lower courts, the Criminal Chamber of the Supreme Court of Justice, sitting in cassation, confirmed the imposition of the death penalty in two cases involving seven persons condemned for the crime of kidnapping which did not result in death. It posited that the revisions to Article 201 do not contradict the terms of the American Convention because both the application of the penalty in effect at the time of ratification (to kidnapping resulting in death), and the application in effect pursuant to the adoption of decrees 38-94, 14-95 and 81-96 (to kidnapping not resulting in death), deal with kidnapping – so there has been no amplification of the coverage of the penalty.

69. The October 31, 2000 opinion of the Court of Constitutionality, overturning the November 26, 1999 decision of the Criminal Chamber of the Supreme Court on the basis of the latter’s failure to apply Article 4(2) of the American Convention, provides definitive guidance on how Article 201 of the Criminal Code must be interpreted and applied in domestic law, as well as on the proper role of international obligations in a system based on the rule of law. The opinion first reviews articles of the Constitution that refer to the role of international law and its normative status in Guatemalan law, noting particularly the primacy accorded to international obligations in the area of human rights under Article 46. Given that the Constitution was adopted subsequent to ratification of the American Convention, the Court notes that legislators were fully aware that the latter would fall within the scope of application of Article 46.

70. With respect to the argument that both the crime of kidnapping resulting in death and “simple” kidnapping fall under the same heading, the Court looked past the heading to the nature of the juridical good sought to be protected. The punishment imposed on kidnapping resulting in death seeks to protect the “supreme” interest of life, the Court opined, while the punishment imposed on kidnapping not resulting in death seeks to protect liberty. To ignore this distinction, it cautioned, would be to ignore the principle of legality in the definition of crimes. The Court affirmed that applicable international norms may be invoked before domestic tribunals to challenge incompatible national legislation, with the result that in the case under study it was ordering the issuance of a new sentence. This commendable, well-reasoned opinion provides clear guidance to lower courts and policy makers, and deserves full recognition for ensuring that the State gives proper effect to its freely undertaken international obligations. It is critical that all judges have the information, training and capacity to properly construe and apply domestic law in harmony with those obligations.

2. The Application of Precautionary Measures by the Commission

71. On three occasions in 1997 and 1998, the Commission addressed the State of Guatemala in relation to the case of Manuel Martínez Coronado (case 11.834) for the purpose of requesting precautionary measures to stay his pending execution. The Commission had opened case 11.834 in October of 1997, and requested the measures so as to be able to examine the claims raised according to its procedures. In contrast to the positive action taken recently by President Portillo in the case of Pedro Rax, the previous administration rejected the request for precautionary measures, indicating that domestic remedies had been exhausted and the judicial system did not contemplate the legal faculties to adopt such measures to stay an execution at that stage of the process. Manuel Martínez was executed by lethal injection on February 10, 1998.

72. Requests for special measures are framed in terms of the competence of the Commission to act on petitions under Article 41(f) of the Convention, and to request precautionary measures when necessary to avoid irreparable harm to persons under Article 29 of its Regulations. Such measures enable the Commission to maintain the efficacy of its Convention-mandated responsibility of examining and pronouncing upon individual cases. It is, moreover, a general principle of international law that states are required to comply with their international obligations in good faith, and that internal law (including deficiencies therein) may not be invoked to evade such compliance. Every member state of the inter-American human rights system is obliged to give effect to its norms; accordingly, the Commission found the response of the State in the Martínez case to be in breach of that duty.[70]

3. Due Process and the Application of the Death Penalty

73. In light of the considerations reviewed above, the Commission finds it pertinent to reiterate certain fundamental principles concerning the application of the death penalty. First, the State, particularly the judiciary, is responsible for ensuring that the death penalty is imposed only pursuant to a trial in which all applicable guarantees of due process have been rigorously observed. As the Inter-American Court has indicated, it is an internationally recognized principle that those States that retain the death penalty must, “without exception, exercise the most rigorous control for observance of judicial guarantees in these cases.”

74. This calls for a truly exceptional level of vigilance given the systemic deficiencies in the administration of justice in Guatemala identified not only by this Commission, but also by numerous state and non-state sources, as well as by MINUGUA, the Special Rapporteur on the independence of judges and lawyers of the United Nations and others. If strict compliance with all norms of due process is not assured, and in the face of a potentially irrevocable mortal error, the application of the death penalty becomes illegal and arbitrary.

75. Under Article 18 of the Constitution and Articles 4, 8 and 25 of the American Convention, the death penalty cannot be applied until all applicable recourses have been exhausted. This includes remedies at the domestic and international levels. Accordingly, requests for the adoption of precautionary measures to ensure the effective completion of proceedings before this Commission must be respected.

76. It would be incompatible with Article 46 of the Constitution, which gives primacy to treaty obligations concerning human rights, as well as with the commitment in the Comprehensive Agreement on Human Rights, to impose and apply the death penalty to crimes for which it did not apply at the time of ratification of the American Convention in violation of Article 4 of that treaty.

Conclusions and Recommendations

77. The State has taken some important steps in committing itself to prevent and respond to violations of the right to life. However, the systems to accomplish this essential objective remain weak and marked by significant deficiencies which impede progress. The diverse violations of the right to life analyzed above share a common characteristic: that the inefficient and ineffective administration of justice impedes the investigation and prosecution of such violations, which in turn delegitimizes the processes to punish them.

78. The weakness of the institutions responsible for investigating, prosecuting and punishing those responsible for violations allows many such violations to remain unclarified and unpunished. The impunity that prevails poses a grave danger, as it “fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.”[71] Citizen security will not be realized until this impunity is overcome, and it may only be overcome when the mechanisms of law enforcement and justice respond to violations of the right to life in full accordance with due process and the rights of victims.

79. In relation to lynchings, social cleansing, extrajudicial executions, excessive force, abuse of authority and disappearances, the Commission recommends that State action and policies be oriented on the basis of the central requirements of (1) prompt and thorough investigation to clarify the facts and identify those presumably responsible; (2) prosecution of the suspects in accordance with due process; (3) punishment of those duly convicted; and, (4) reparation to the victims. With respect to the requirement of investigation, the Commission recommends that the State give special attention to the basic standards set forth in the Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions. At the most elemental level, these Principles require a determination of the cause, manner and time of death, the person(s) responsible, and any pattern or practice that may have brought it about, and must include an adequate autopsy, the collection and analysis of all physical and documentary evidence, and the taking of statements from witnesses.

80. In relation to the phenomenon of lynchings, which has cost many lives, and which continues to perpetuate a climate of violence and vengeance in affected communities, the Commission recommends that the State:

1. Analyze and document the nature, characteristics and extent of lynchings and attempted lynchings, and design integrated strategies aimed at preventing their repetition, and at fomenting measures of non-violent conflict resolution;

2. Amplify and intensify efforts underway to educate and train police, prosecutorial and judicial officials, and authorities and leaders at the local level in strategies to prevent lynchings and to respond to incidents that occur so as to avoid bloodshed;

3. Further incorporate the participation of members of the affected communities in the design and implementation of the programs referred to above;

4. Establish a process, incorporating the participation of law enforcement, prosecutorial and judicial officials at the national and local levels, to review cases of lynchings and attempted lynchings to verify the status of each investigation and/or prosecution underway and determine the actions to be taken to impel each to a definitive resolution.

81. In relation to killings committed as a form of social cleansing, the Commission recommends that the State:

1. Enhance the human and material resources dedicated to the investigation of such crimes to ensure the existence of an adequate evidentiary basis for the identification of those responsible and their eventual prosecution and punishment.

2. Adopt the measures necessary to ensure that crimes linked by a common modus operandi are investigated in light of their possible connection.

3. Redouble its efforts to investigate such crimes with an apparent link to State agents and/or illegal groups, such as former military commissioners and PAC members. Only effective investigation, prosecution and punishment can stem the persistence of abuses by such actors.

82. In relation to extrajudicial executions by State agents in custodial situations and through abuse of authority, the Commission urges the State to:

1. Implement additional training activities to ensure that members of the National Civil Police are fully apprised of the procedures to be followed in effectuating arrests and detentions;

2. Adopt further measures of training, oversight and enforcement to ensure that State agents authorized to use force apply it in strict conformity with the principles of necessity, exceptionality and proportionality set forth in the UN Code of Conduct for Law Enforcement Officials;

3. Take additional steps to ensure that any deprivation of liberty effectuated by a State agent is immediately registered, and subject to judicial supervision without delay;

4. Implement the measures necessary to suspend officers under investigation for incidents involving excessive force or abuse of authority.

83. In connection with disappearances, the Commission calls upon the State to:

1. Adopt the measures required to promptly and thoroughly investigate the isolated cases denounced to ensure that the fate of the victims is clarified and those responsible are held accountable;

2. Ensure that any failure of any State agent to register a deprivation of liberty and subject the detention to judicial supervision without delay is met with the prompt application of enforcement measures to hold him or her accountable;

3. Give due consideration to the withdrawal of its reservation to the application of Article V of the Inter-American Convention on Forced Disappearances, in light of its obligations as a Party, and its obligations under domestic law and the inter-American system generally.

84. In connection with the imposition and application of the death penalty, the Commission recommends that the State:

1. Consider presenting a request for an advisory opinion before the Inter-American Court of Human Rights to reconcile the divergent interpretations of domestic courts as to the compatibility of the amplification of the death penalty to apply to kidnapping which does not involve the death of the victim with the Constitution and the American Convention;

2. Consider, in light of the requirement of scrupulous adherence to all due process guarantees in the face of this irrevocable penalty, imposing a moratorium on executions until the basic reforms contemplated in the peace accords to correct serious deficiencies in the administration of justice are implemented and operative;

3. Take the legislative and/or administrative measures necessary to prescribe a process to request clemency and make related representations in cases where this penalty has been imposed.



Notes Ch. V___________________

[1] See Report of the UN Special Rapporteur on the independence of judges and lawyers, Mr. Param Coomaraswamy, submitted in accordance with Commission resolution 1999/31: Report on the mission to Guatemala, E/CN.4/2000/61/Add.1, 6 Jan. 2000, para. 59.

[2] See MINUGUA, Eighth report on human rights of the United Nations Verification Mission in Guatemala (“Eighth Report”) A/52/946, 15 June 1998, at para. 17 (reporting on 109 confirmed violations, including extrajudicial executions and executions carried out in violation of legal guarantees, attempted executions, and death threats); Ninth report on human rights of the United Nations Verification Mission in Guatemala (“Ninth Report”) A/53/853, 10 March 1999, at para. 12; Tenth report on human rights of the United Nations Verification Mission in Guatemala (“Tenth Report”) A/54/688, 21 Dec. 1999, at para. 5, table 1 (reporting 80 violations confirmed during previous reporting period, and 77 violations confirmed during reporting period in question); Eleventh report on human rights of the United Nations Verification Mission in Guatemala (“Eleventh Report”), A/55/175, 26 July 2000, para. 17 (reporting 35 violations confirmed).

[3] See MINUGUA, Eighth Report, at para. 17.

[4] See MINUGUA, Tenth Report, at para. 5.

[5] See Human Rights Ombudsman, Informe Circunstanciado 1999, at table , p. 237. It is important to note that not all complaints lead to the opening of investigations.

[6] See MINUGUA, Eleventh Report, para. 17.

[7] Id.

[8] See Instituto de Estudios Políticos, Economicos y Sociales, “Derechos Humanos en Guatemala: a seis meses de la nueva administración,” Reporte Diario, p. 2 (citing FAMDEGUA).

[9] See Raúl Matias, “Linchan a cinco en Totonicapán,” Prensa Libre, 19 May 1999; Miguel Ignacio Acabal and Raúl Matías, “Identifican a cinco linchados,” Prensa Libre, 20 May 1999.

[10] See MINUGUA, Tenth Report, Supplemento: Situaciones sobre derechos humanos, para. 42; Instituto de Investigaciones Jurídicas IIJ, Una Aproximación a la `barbarie’ de los linchamientos en Guatemala, (Universidad Rafael Landívar, July 2000), para. 10, respectively.

[11] Id.

[12] Id. There have also been recent reports, for example, of the administration of whippings as a form of punishment by local mobs. See Julio F. Lara, “Azotaron a menor en cantón Pachó, aldea Lemoa, Santa Cruz del Quiché,” Prensa Libre, 23 Aug. 2000.

[13] See MINUGUA, Ninth Report, Supplemento, supra, para. 70.

[14] See Una Aproximación a la `barbarie’ de los linchamientos en Guatemala, supra, para. 11.d; MINUGUA, Tenth report, Supplemento, supra, para. 56.

[15] “Vecinos de Tunajá, Zacualpa no creen en la justicia,” Prensa Libre, 24 Aug. 1999.

[16] Olga López Ovando, “Condicionan linchamientos,” Prensa Libre, 1 Sept. 1999.

[17] Id.

[18] See MINUGUA, Ninth Report, Supplemento, supra, para. 53.

[19] See id.

[20] See id.

[21] Tenth Report, Supplemento: Situaciones sobre Derechos Humanos, para. 48.

[22] Erick Campos, “Linchamientos: Secuela de la guerra,” Prensa Libre, 21 de mayo de 1999.

[23] The case of Juan Chanay Pablo et al. (11.212), also known as the Colotenango case, was processed by the Commission for several years, and was then the subject of a friendly settlement agreement. See Report 19/97, published in Annual Report of the IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., Mar. 14, 1997. The Commission continues to monitor compliance with that agreement, and to report on the provisional measures ordered by the Inter-American Court of Human Rights at the Commission’s request, which remain in effect to protect the lives and physical integrity of witnesses and others involved in pursuing justice in the case. With respect to the provisional measures, the Commission continues to closely track developments in light the escape of those convicted and its serious concern for the situation of the individuals at risk.

[24] See Olga López Ovando, “Conferencia Episcopal de Guatemala preocupada por la violencia: Pronunciamiento: Iglesia Católica señala a grupos paramilitares,” Prensa Libre, 18 Aug. 2000.

[25] See Luisa F. Rodríguez, “Harán campaña contra linchamientos, Prensa Libre, 19 June 1999.

[26] See Tenth Report, para. 57; Eleventh Report, para. 71.

[27] “Magistrado: Participación de todos los sectores, fundamental para evitar linchamientos,” AC, 11 July, 2000.

[28] Tenth Report, Supplemento: Situaciones sobre derechos humanos, para. 51.

[29] See Press Communique: “MINUGUA valora positivamente la actitud de la comunidad de Montemercedes y la actuación de la PNC de Sololá,” 17 Aug. 2000.

[30] MINUGUA, Eleventh Report, para. 69.

[31] Id., para. 70.

[32] Id., para. 52.

[33] “Jesús Resuscitado Alienta Nuestra Esperanza,” Comunicado de la Conferencia Episcopal de Guatemala, Guatemala de la Asunción, 25 de mayo de 2000.

[34] “Suman 43 ejecuciones,” Prensa Libre, 7 June 2000.

[35] MINUGUA, Eleventh Report, paras. 78-80; Tenth Report, para. 73.

[36] Id. The Mission noted, for example, the use of such illegal groups by certain agroindustrial powers in Escuintla to carry out kidnapping, torture and killings, and noted the group known as “Los Chuchos,” which it linked to the mayor of Nueva Santa Rosa.

[37] MINUGUA, Ninth Report, para. 17.

[38] Id.

[39] See MINUGUA, Ninth Report, Supplemento, Caso 5; Eighth Report, para. 84.

[40] MINUGUA, Eighth Report, paras. 20, 84-86.

[41] See e.g., Reports No. 9/00, 10/00, Cases 11.598, 11.599 (Brazil), published in Annual Report of the IACHR 1999, OEA/Ser.L/V/II.106, Doc. 3 rev., Apr. 13, 2000, at paras. 33-34; Report on the Situation of Human Rights in Brazil, “The Rights of Minors” (1997).

[42] See MINUGUA, Tenth Report, at para. 5.

[43] Id., at Supplement: Casos de violaciones a los derechos humanos, cases 1, 3, 7 and 9.

[44] Id.

[45] MINUGUA, Eleventh Report, para. 19.

[46] Id. para. 24.

[47] Id.

[48] See MINUGUA, Tenth Report, para. 7.

[49] Id; Supplemento, Caso 4. In its comments on the draft report, the State indicated that “it is considered that, while the situation referred to is particularly serious, it also illustrates that the institutions and entities (the Office of Professional Responsibility of the National Civil Police) act in accordance with the circumstances and proceed according to law.”

[50]See MINUGUA, Eleventh Report, para. 22.

[51] Id., para. 23.

[52] MINUGUA, Eleventh Report, para. 21.

[53] Id., Caso 5.

[54] Id., Caso 6.

[55] Id., para. 25.

[56] MINUGUA, Tenth Report, Supplemento, case 2.

[57] MINUGUA, Eleventh Report, para. 33.

[58] Id.

[59] MINUGUA, Eighth Report, paras. 34-38.

[60] Id., paras. 35-36.

[61] Id., paras. 37-38.

[62] Id., para. 36.

[63] See MINUGUA, Tenth Report: Suplemento de situaciones: Estudio de situación sobre pena de muerte; Eleventh Report and Suplemento al undécimo informe, paras. 100-09. In its observations on the draft report, the State indicated that it would be useful to have more specific information concerning the irregularities in question. In this regard, MINUGUA’s reports refer to violations of minimum judicial guarantees. For example, “concerning the right of defense, it was observed that the majority of those condemned only had one opportunity to meet with their lawyers before the trial hearing, and the defenders did not raise any relevant substantive questions, either during the contentious stage or during the appeals” Tenth report: Supplement, para. 35. Further, reference is made in some other cases to violations of the presumption of innocence. Id. The Supplement to the Eleventh Report, as noted in the paragraphs above, refers to a series of specific cases, emphasizing violations verified in relation to procedural guarantees, for example, the right to defense and to be heard with due guarantees, as well as connected violations to the right to liberty and personal integrity.

[64] See, Case 11.686, Roberto Girón and Pedro Castillo Mendoza; Case 11.782, Rodríguez Revelorio et al; Case 11.834, Manuel Martínez Coronado.

[65] MINUGUA, Eleventh Report, para. 26, and Supplement, paras. 102, 109. Days later, the European Union sent a communication to the State questioning the two executions, and asking that Ramírez be spared. Further, the EU asked that the State reconsider the legislation that had expanded the applicability of the death penalty, and take the steps necessary to define a mechanism to apply for clemency.

[66] That Commission took out a paid ad expressing its view, which was run by and covered in all the major newspapers on July 16, 2000. See also, Instituto de Investigaciones Jurídicas, “Recurso de Gracia,” June 2000.

[67] Report No. 41/00, Cases 12.023 et al., Jamaica, Apr. 13, 2000, at paras. 228-32.

[68] The Inter-American Court of Human Rights has provided clear guidance on the scope of Article 4(2), having affirmed that, pursuant to its terms, any expansion of the list of offenses subject to the death penalty is absolutely prohibited. IACtHR, “Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human Rights), Advisory Opinion OC-3/83 of Sept. 8, 1983, Ser. A No. 3, paras. 56-59. It has also confirmed the international responsibility that attaches when a State promulgates a law in manifest conflict with its obligations under the Convention. IACtHR, “International Responsibility for the Promulgation and Enforcement of Laws in Violation of the Convention” (Arts. 1 and 2 of the American Convention on Human Rights) Advisory Opinion OC-14/94 of December 9, 1994, Ser. A No. 14.

[69] In its previous report, the Commission recognized the positive contribution of the Ninth Chamber of the Court of Appeals, which in a sentence of January 30, 1997, commuted three death sentences to noncommutable sentences of 50 years imprisonment on the basis of the requirements of domestic law including the State's obligations pursuant to Article 4 of the American Convention. The Court of First Criminal Instance, Narcoactivity and Crimes against the Environment of the Department of Santa Rosa, Cuilapa issued a similar decision on May 8, 1997, having determining that, under the terms of the applicable legal regime, the court could not legally impose the death penalty for a crime for which that punishment was not prescribed at the time of Convention ratification. See “Guatemala,” Annual Report of the IACHR 1997, OEA/Ser.L/V/II.95, Doc. 7 rev., Mar. 14, 1997.

[70] See id.

[71] IACtHR, Paniagua Morales Case, Judgment of March 8, 1998, Ser. C No. 37, at para. 173.



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