University of Minnesota

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





1. With the signing of the peace, the conditions are in place to realize significant advances in the protection of the right to individual liberty. There are no longer reports, as there were during the conflict, of the systematic abuse of the right to liberty as a tool of State policy. One of the most dramatic manifestations of State repression during the conflict was to place political prisoners in clandestine detention to cut them off from the outside world and any form of protection against the persecution practiced against them.

2. Rather, the current problems with the observance of the right to liberty spring largely from deficiencies in the institutions and systems in place to administer justice. Having spoken with judges and judicial personnel during its on-site visit, and having followed this situation closely, the Commission is well aware of the many members of the judiciary deeply committed to the fair and diligent administration of justice, but who continue to face endemic and systemic obstacles. Further, the State is engaged in an extensive and serious effort to reform the police and strengthen the judiciary – an effort which offers vital possibilities for progress. However, the persistence of profound problems with the criminal justice system in general and the protection of the right to liberty in particular demonstrate the need for redoubled efforts to ensure compliance with national and international standards.

3. The grave deficiencies in the system of judicial protection and guarantees identified in chapter IV, supra, have an especially severe impact on the rights of persons affected by crime and the criminal justice system. On the one hand, deficiencies in the investigation, prosecution and punishment of crime mean that victims are often left defenseless and perpetrators are not called to account. On the other hand, when individuals are subjected to prosecution and punishment, they are often prejudiced by the failure of the authorities to carry those out in accordance with the law and respect for due process, thereby further delegitimizing the system. Both aspects of the problem can lead to fundamental injustice, and it is from this perspective that the Commission has oriented its analysis of the right to liberty.

4. Reports indicate that in a significant number of cases the authorities responsible for effectuating arrests do not comply with applicable domestic law and procedures, and as a result, individuals are deprived of liberty illegally and arbitrarily. In particular, arrests are carried out absent judicial order and procedures for placing detainees promptly under judicial supervision are not observed. Pre-trial detention is utilized broadly rather than as an exceptional measure, including even for petty offenses. Inefficiency and delay in prosecution lead to unduly prolonged preventive detention, thereby exacerbating the situation of overcrowding in many detention facilities. These deficiencies in the criminal justice system render detainees vulnerable to violations not only of the right to liberty, but also of the right to humane treatment. Moreover, they create serious inefficiencies in the criminal justice system, insofar as human and material resources are disproportionately channeled to processing lesser offenses, impeding the ability of the State to respond to the serious crimes which pose a real danger to society.

A. The Legal Framework for the Protection of the Right to Liberty
1. National Law

5. The Political Constitution of Guatemala incorporates a series of essential substantive and procedural safeguards for the right to liberty. Article 6 specifies that no person may be detained or imprisoned except for cause, and pursuant to the order of a competent judge issued in accordance with the law. The only exception is in the case of a flagrant offense. Detainees must be placed at the disposition of a competent judicial authority within 6 hours. It is noteworthy that Article 6 stipulates that violations of these provisions will result in the prosecution of the responsible party, at the de oficio instigation of the courts.

6. Pursuant to Article 7, the detainee must be promptly notified of the reason for the detention, the authority that ordered it, and the place where he or she is to be held. Article 8 requires that the detainee be immediately informed of his or her rights, especially to an attorney, who may be present during the corresponding procedures. Article 9 provides an especially important safeguard in establishing that only competent judges are authorized to interrogate detainees, and that this must be done within 24 hours. Non-judicial interrogations are stipulated to be devoid of legal effect.

7. Under the terms of Article 10, detainees may only be brought to legally authorized detention facilities, and those suspected or accused of crimes shall be held separately from those already convicted and sentenced. This Article stipulates that any functionary who violates this norm shall be held personally responsible. Pursuant to Article 11, persons suspected of misdemeanors or regulatory crimes who can prove their identity shall not be detained, but released subject to measures to ensure their subsequent appearance. Those unable to prove their identity shall be placed before a competent judge within the first hour after their detention for the corresponding processing.

8. In accordance with Article 12, no one may be condemned or deprived of their rights without having been heard by a competent and pre-established judicial authority. Article 13 provides that the detention of an accused may only be ordered where there is information concerning the commission of a crime and sufficient rational reasons to believe the person in question committed or participated in it. Article 14 recognizes the presumption of innocence until final sentence, and stipulates that the accused has the right to have access to all records, documents and proceedings.

9. The Code of Criminal Procedure, for its part, amplifies a number of the foregoing provisions, and establishes in Article 16 that the courts and other authorities involved in the criminal process must comply with the obligations concerning human rights established in the Constitution and international treaties, and in Article 71 that these authorities must ensure that detainees know their rights under law. Article 14 indicates that the presumption of innocence means that restrictions on the liberty of suspects allowed by law must be narrowly interpreted.

10. As a conceptual matter, Guatemalan legislation provides a number of important safeguards for the right to personal liberty and humane treatment. The analysis which follows highlights problems with the interpretation and application of that law.

2. International Law

11. The right to liberty is recognized as fundamental in all major human rights instruments. In accordance with its importance, international law provides a number of detailed standards to protect it, and to protect persons deprived of liberty. Within the Inter-American system, Article 7 of the American Convention sets forth the guarantees that Parties such as Guatemala have pledged to respect and ensure. In summary, any deprivation of liberty must be carried out according to preestablished law; accordingly, "no one shall be subject to arbitrary arrest or imprisonment." Any person detained must be informed of the reason and promptly notified of the charge. Any detainee must be presented promptly before a judge, and must be tried within a reasonable time or released pending the continuation of proceedings. Further, any person deprived of liberty is entitled to judicial recourse, to obtain, without delay, a determination of the legality of the detention. Finally, no one may be detained for debt.

12. Issues concerning the right to liberty have a close relation to other rights protected under the Convention. Most pertinently, Article 5 recognizes the right of every person to have his or her physical, mental and moral integrity respected, and provides that any detainee must be treated with respect for his or her inherent dignity. Further, “[p]unishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.” A number of issues under this heading will be analyzed in detail in the chapter which follows concerning the rights of persons detained in the prison system.

13. The foregoing fundamental principles are complemented by other international instruments, including the ICCPR, to which Guatemala is a Party, and the internationally accepted United Nations Standard Minimum Rules for the Treatment of Prisoners and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which provide further detailed guidance in applying the general norms already cited. With respect to the treatment of minors within the ambit of criminal justice, special note must also be made of Article 19 of the American Convention concerning the duty of states to take special measures of protection on the basis of their status, and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice and Rules for the Protection of Juveniles Deprived of their Liberty.

B. Deprivation of Liberty in the Initial Stages
1. Arrest and Initial Detention

14. As indicated above, applicable domestic and international law provide that arrest, which initiates a deprivation of liberty, must take place pursuant to judicial order and supervision, except in the case of a flagrant offense (where the immediacy of the facts and presence of witnesses offers alternative safeguards). In the case of Guatemala, the information before the Commission is consistent in indicating that, while these principles are recognized in theory, they are often disregarded in practice.

15. MINUGUA, for example, has indicated its ongoing concern with respect to the failure of those responsible for effectuating arrests to comply with applicable law and procedures. During the period from July of 1997 through November of 1999, it verified 311 cases of arbitrary and/or illegal arrest.[1] Of these, 95 were attributed to the National Civil Police, 86 to the National Police, 52 to the judiciary, 35 to municipal authorities, 28 to the army, 5 to “other,” 4 to municipal authorities, 4 to the Treasury Guard, 1 to irregular groups, and one to “unidentified.”[2] In its most recent report, covering December 1999 through June 2000, it disclosed 48 verified cases of arbitrary arrest, and 77 of detention in violation of legal guarantees.[3]

16. The attribution of principal responsibility for these violations to the National Police and the National Civil Police raises particular concern. While it was and is hoped and expected that the additional attention given to recruitment and training of the National Civil Police will play a role in enhancing its effectiveness and compliance with the law, and initial reports were promising,[4] the reports cited indicate the need for redoubled efforts.[5] The attribution of responsibility to the judiciary is of special significance and concern, given that it is the very institution primarily responsible for ensuring the protection of the right to liberty. Particularly troubling in this regard are reports that judges often confirm preventive detention primarily or wholly on the basis of police reports, without further investigation.[6]

17. Finally, the attribution of responsibility for illegal and arbitrary arrests to the army, which continues to carry out joint anti-crime patrols with the police pursuant to the terms of Decree No. 90/1996, gives rise to grave concern for several reasons. Military participation in anti-crime activities means deploying troops trained to combat a military enemy in situations requiring specialized training to enforce civilian compliance with the law.”[7] As the Commission indicated in chapter I, above, the utilization of the armed forces to this effect is inconsistent with fundamental aspects of the peace accords, and with the separation of security functions in a democratic system. Moreover, there are reports indicating the participation of the military, including military intelligence, in criminal investigation activities, and specifically those concerning kidnappings.[8] This is of grave concern to the Commission, as it is not authorized by Decree No. 90/1996, and contravenes applicable law, which assigns this function exclusively to the National Civil Police under the authority of the Public Prosecutor.

2. Registration, Police Reports and Notification

18. One of the most essential components of a properly functioning criminal justice system is an effective system for registering arrests and detentions.[9] This obviously provides a crucial protection for the rights of the detainee, as well as facilitating a myriad of other functions, including, inter alia, the tracking of accurate statistics for use in policy development and implementation. The IACHR has received reliable information from a variety of sources, as well as through its individual case system, to the effect that there is still no effective central registry system to track detainees.[10] Such a registry must contain information identifying the detainee, the reasons for the detention and legal authority therefore, the precise time of admission and release, and information as to the order of commitment. A centralized, accurate and promptly accessible registry is a fundamental minimum safeguard.

19. A related concern is the obstruction of justice through the doctoring of police reports. Reports indicate that this frequently accompanies instances of illegal arrests,[11] and may be done to hide irregularities, change the timing of the arrest and/or circumstances to appear to comply with the stipulations of domestic law, change the nature of the facts alleged, and even to deny detention. Accurate arrest records are clearly essential for judicial oversight and to safeguard against abuses including disappearances.[12] In this regard, in its response to the draft report, the State accepted that it “is fully aware of the problems with registration and the system of police reports, as well as the negative effects of these components on the rights of persons detained.”

20. While national and international law require that a detainee be promptly informed of the reason for the detention and any charge, the reports and information referred to above indicate that this requirement is not always met.[13] Moreover, effective notification requires that the relevant information be communicated in the language understood by the affected individual. This is a special challenge, and of special importance, in the zones of the country where recently mobilized members of the National Civil Police speak Spanish, but the indigenous inhabitants do not. According to information reported by the State, important steps are being taken to train and incorporate additional interpreters in the justice system. Reports indicate that efforts in this regard must be intensified. In a recent study, MINUGUA reported that a sampling of criminal case files in which the accused was indigenous showed that only 2.5% benefited from the services of an interpreter during the proceedings.[14] In its comments on the draft report, the State expressed that, given Guatemala’s identity as a multiethnic country, it shares the view that problems with the administration of justice must be addressed with attention to its multilingual and multicultural character, as part of the mechanism to respond.

3. Prompt Judicial Supervision of Detention

21. The single most important protection of the rights of a detainee is prompt appearance before a judicial authority responsible for overseeing the detention.[15] The Constitution requires that any person detained be placed at the disposition of a judicial authority within 6 hours, and the Code of Criminal Procedure specifies in Article 259 that preventive detention may only be ordered after the person concerned has been heard. These basic safeguards are not observed in practice. To the contrary, reports indicate that from half to the majority of those in preventive detention facilities were delivered by police officers without having first been brought before a judge – in violation of multiple legal provisions. MINUGUA reported that almost half of the cases analyzed in an intensive study fell within this pattern.[16] A highly placed prison official was quoted in the press as saying it is vox populi that the majority of detainees are delivered to detention centers without presentation before a judge.[17]

22. Reports concerning compliance with the requirement that a detainee’s statement be taken by a judge within 24 hours shed further light on the question of prompt judicial supervision. According to MINUGUA, in the municipalities, the first declaration is usually taken by a justice of the peace, who does little more than read the charge, usually in the absence of any legal counsel for the accused.[18] Once detainees are placed at the disposition of a judge of first instance, reports indicate that, in a significant number of cases judges may not actually be present for the taking of the declaration (having delegated this task to a court official) but only for the signing.[19] These are chronic problems, demonstrating the breach between law and practice, the need for further training and enforcement measures to ensure compliance by police officers, and the need to enact norms to prevent prison authorities from receiving detainees without the required judicial order.

23. As the Commission has repeatedly emphasized, the requirement that detention not be left to the sole discretion of the state agents responsible for carrying it out is so fundamental that it cannot be overlooked in any context. Where the procedures provided by law are not followed – where arrest and detention are effectuated absent a judicial order, where detainees are not properly registered, where they are held in facilities not authorized for detention or are transferred to detention facilities absent judicial authorization – prompt judicial supervision is not possible, and the detainee is defenseless against the potential abuse of his or her rights. This danger is manifested in the potential for the use of force to coerce confessions, and in the extreme case, by disappearances. While these acute violations of the basic rights of detainees are not practiced as State policy, as they were during the internal conflict, the Commission continues to receive disturbing reports of violations of the right to humane treatment which are permitted to exist and persist because of the lack of effective safeguards. These are described in more detail in chapter VI, above.

24. The foregoing factors also severely prejudice the right of the detainee to petition for a review of the legality of his detention, without delay, by a competent judicial authority – i.e. habeas corpus (exhibición personal). The obligation to provide prompt access to habeas corpus is independent of the duty of the State to present the detainee promptly before a competent judicial authority. Habeas corpus ensures that the detainee is not exclusively at the mercy of the detaining authority,[20] and this protection must always be accessible.[21]

C. The Use of Preventive Detention

25. Pre-trial or preventive detention is an extreme deprivation of the right to liberty because it places the person concerned under the full control of the State, not as a punishment, but on the basis of the presumption that the person will abscond before trial or obstruct the investigation. Under Article 7.5 of the American Convention, a person detained according to the law "is entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings." Thus, preventive detention may be consistent with the Convention only where it is initially justified and for so long as its duration does not become "unreasonable." Where pre-trial incarceration becomes unreasonably prolonged, "the risk of inverting the presumption of innocence increases."[22] As the Commission has stated, "[t]he rationale behind this guarantee is that no person should be punished without a prior trial which includes a charge, the opportunity to defend oneself, and a sentence."[23]

26. The arbitrary and illegal application of preventive detention is a chronic problem in many countries of the region, and constitutes a severe infringement on the right to liberty in Guatemala. According to official data, two-thirds of those in the country’s prisons are awaiting trial, 63% of men and almost 70% of women. While widely reported to underestimate the gravity of the situation,[24] this data highlights the situation of the vast majority of the prison population. MINUGUA has characterized that the sharp rise in the prison population since 1995 is not a reflection of the enhanced functioning of the administration of justice, but of the large numbers warehoused in detention facilities without trial.[25]

27. In May of 1999, an official of the Public Defender for Criminal Matters was quoted in the press describing the situation in one prison, that in Guastatoya, El Progreso: more than 120 detainees were held under suspicion of diverse crimes, without having been formally charged.[26] They had been in prison for 18, 24 or even 30 months. Because only three cases had been brought to trial in 1998, and only one had been tried so far that year, they had little hope of being tried.[27]

28. Studies and reports indicate that persons are held in preventive detention for a series of often interrelated reasons that contravene applicable national and international law. These include: the failure to apply substitute measures as required by law and the principles of justice; the lack of prompt and responsive investigation; deficiencies in access to legal counsel; delay in the criminal process; and, in some cases, the inversion of the burden of proof so that the accused must prove why preventive detention should not be ordered.[28] The interrelation of these factors is particularly manifested in the fact that many of the persons detained for misdemeanors in violation of the law or who might otherwise be subject to substitute measures are the same persons who lack legal representation.[29]

29. Further, although the Constitution and the Code of Criminal Procedure expressly prohibit the use of preventive detention for misdemeanors or where it is not proportional to the crime, reports indicate that such cases are common. While official figures for 1999 indicate that the prison population detained in connection with misdemeanors was less than 4%, MINUGUA verified that the population detained in this regard ranges between 25 and 30%.[30] This is not just a problem with respect to preventive detention, but also with respect to sentencing. Apart from contravening applicable law, the deprivation of personal liberty as a preventive measure or a sanction for a misdemeanor, such as public drunkenness, further taxes an overburdened prison system and – as the system currently stands – usually places the persons concerned in facilities with those accused or convicted of crimes of violence.

30. The deficiencies of the Guatemalan criminal justice system are such that persons in preventive detention may be held for periods exceeding those to which they could be sentenced if convicted. Such delays are a clear breach of the American Convention because they violate the principle that an individual must be presumed innocent until proven guilty, and deny freedom without due process of law. The President of the Supreme Court of Justice referred to several such cases in a speech shortly before the Commission carried out its on-site visit to Guatemala, citing one in which the accused was held for three years for the alleged robbery of a bicycle, which could have carried a sentence of one year’s imprisonment.[31] In conversations with the Commission during its on-site visit, the Director of the detention center known as “Pavoncito” expressed concern about the situation of detainees in his facility held without trial in excess of the possible sentence, and indicated that he had sent memoranda to the Public Prosecutor on the subject without obtaining results. In some cases, detainees have been held for extended periods in relation to cases in which the files have simply been lost.[32]

31. Because the poor and otherwise marginalized sectors of society are often at a disadvantage with respect to the right to legal counsel and other means to safeguard their rights, they are in a situation of special vulnerability. This vulnerability is manifested in the numerous cases of poor people, especially indigenous inhabitants, who are detained for minor infractions.[33] Investigators have reported cases where detainees don’t even know why they are imprisoned.[34] These situations may exact a tremendous burden on the rights of the detainee, as well as on their family members, whose very subsistence may be jeopardized by the absence of one of the family’s providers.

32. These are persons deprived of liberty who have not been heard in the substantiation of the accusation against them, and who are entitled by law to the presumption of innocence. This presumption of innocence is, in fact, the point of departure for any analysis of the rights and treatment accorded to persons in preventive detention. Accordingly, preventive detention may only be imposed where justified and necessary to ensure the appearance of the accused for trial and to protect against the obstruction of justice in the investigation.[35] Given the presumption of innocence, and the burden imposed on the detainee, the State bears a special duty to expedite the prosecution and safeguard against delay.[36] In Guatemala, as in many countries in the region, however, delay is the rule and prompt prosecution the exception. This is a problem of acute proportions, leading to many situations of fundamental injustice. In response to the draft report, the State commented that it shares the concerns indicated “with respect to the indiscriminate use made of preventive detention as the rule rather than the exception.” It reported that the carrying out of a study on the theme of preventive detention as an exceptional measure had recently been approved with the objective of speeding up the processes and guaranteeing the rights of the persons detained.

D. Non-custodial Measures

33. Given the presumption of innocence recognized in Article 8(2) of the American Convention, any pre-trial detention must be preventive rather than punitive in nature. Other applicable international norms, such as Article 9(3) of the ICCPR to which Guatemala is a Party, expressly state that preventive detention is to be used as an exceptional measure.[37] The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the United Nations Standard Minimum Rules for Noncustodial Measures provide additional guidance in applying preventive detention only where non-custodial measures are not sufficient.[38] While the exceptional nature of preventive detention is reflected in certain provisions of the Code of Criminal Procedure, it is clear from the above analysis that the application of such detention in Guatemala exceeds the exigencies of the administration of justice.

34. Given the concern expressed by Guatemalan society about common crime, and the current inability of the authorities to control it, urgent attention needs to be given to the use of non-custodial measures such as citations, house arrest or bail. One point of such measures is to utilize the resources of the state in proportion to the seriousness of the social interest to be protected. It is both disproportionate and inefficient to apply preventive detention in the case of misdemeanors that pose no serious threat to people or property. It is, moreover, inconsistent with Guatemalan law and fundamental principles of justice.

35. The scope of this problem is such that, in March of 1999, the General Director of the Penitentiary System was quoted in the press as stating that at least half of those in preventive detention should be released, either because they were detained for suspicion of having committed misdemeanors (which he also noted as being unconstitutional), or minor offenses susceptible to substitute measures.[39] He had been a member of the Commission to Transform the Penitentiary System, and made his comment following the issuance of certain recommendations by that Commission designed to ease overcrowding in the prisons, including that the police avoid effectuating unnecessary arrests and that judges avoid the overbroad application of preventive detention.[40]

36. The result of the overbroad and improper application of preventive detention, particularly with respect to those without resources and legal counsel, is that the prison system is overburdened with cases that do not merit the use of its resources, impeding its ability to respond to those that do. Moreover, the National Civil Police devote disproportionate resources to the arrest, processing and transfer of detainees to detention facilities in the case of misdemeanors (where the issuance of citations or other measures would comply with the law), in prejudice to their pressing task of investigating serious crimes. The modernization of the administration of justice must take into account the use of non-custodial measures as a means of optimizing the social utility of the criminal justice system and the resources that it has available.

Conclusions and Recommendations

37. The Inter-American Commission and Court have consistently indicated that, not only may no one be deprived of liberty except in the cases or circumstances expressly provided by law, but further, any deprivation of liberty must strictly adhere to the procedures defined thereunder.[41] The failure to comply with such procedures creates the possibility, and eventually the probability of abuse of the rights of detainees. Where detention is not ordered or properly supervised by a competent judicial authority, where the detainee may not fully understand the reason for the detention or have access to legal counsel, and where the detainee’s family may not be able to locate him or her promptly, there is clear risk, not just to the legal rights of the detainee, but also to his or her personal integrity.

38. The observance of the right to liberty is closely related to and has a strong impact on the situation of the penitentiary system. In light of that linkage, the Commission to Transform the Penitentiary System recommended a number of measures aimed at reducing the critical problem of overcrowding in the prisons, including, inter alia, training for the National Civil Police to avoid illegal or unnecessary detentions, and training for judges to encourage the use of substitute measures and the rational application of preventive detention. The Commission considers that these are very positive proposals and that the serious pursuit of such initiatives would offer a positive contribution to the protection of the right to liberty and to humane treatment in the prison system.

39. The Commission is aware of the adoption of some concrete positive measures in a number of cases that demonstrate that significant advances are attainable. For example, in 1999, as part of a larger effort in collaboration with MINUGUA to clear the backlog of old cases in one Second Court of First Instance, the judicial authorities ordered that 223 of the 265 persons in preventive detention be released. A judge of that Court explained that, in some cases files had been lost, and some had simply never been brought to trial.[42] Accordingly, on the basis of a judicial review of each case, it was determined that the detention of 85% of those held was no longer legally justified. The Commission offers its resounding support to those members of the judiciary struggling to ensure the prompt and fair administration of justice. This example points out the need to implement stronger systems of periodic review and oversight throughout the judiciary to ensure that the cases of persons in preventive detention are expedited, and that once their detention has ceased to be reasonable, they be released pending the completion of proceedings.

40. On the basis of the foregoing analysis, the Commission concludes that the State’s commitment under the peace accords to reform the police and strengthen the administration of justice continues to be of vital importance as the basis for enhancing respect for the right to liberty. The resources and attention being devoted to the recruitment and training of the National Civil Police provide one important means of addressing the problems identified, but must be intensified. The counterpart to efforts to recruit and train the best candidates is oversight and enforcement to ensure that officers comply with applicable law and procedures. The information available indicates that the action of the Office of Professional Responsibility is not effective, and that agents responsible for violations of the right to liberty are not held judicially accountable. In this regard, it is encouraging that in its comments to the draft report the State reported that:

the training and professionalization of members of the National Civil Police is priority number one for the current administration, in order to offer better services for the community [and] … at the same time, it is also priority number one to see that agents responsible for committing any criminal act against any citizen or person be duly identified and submitted to the jurisdiction of the courts, so as to avoid the perpetuation of impunity within the very institution charged with providing security.

41. In light of the preceding analysis and conclusions, the Commission recommends that the State of Guatemala:

1. Adopt additional measures of training, oversight and enforcement to ensure that agents of the National Civil Police follow the procedures established by law in effectuating arrests, and, in particular, to ensure that arrests are only carried out pursuant to judicial order or in legitimate situations of flagrant offenses. The Commission particularly highlights the need to strengthen the internal system for monitoring and oversight within the National Civil Police.

2. Implement and ensure the operability of a centralized registry containing, inter alia, the name of every detainee, the reason for and place of detention, when it was initiated and the judicial authority that ordered it. This registry must be promptly available to family members of detainees, defense counsel, judges and other pertinent authorities, and other parties with a legitimate interest.

3. Undertake concerted measures to ensure that any person deprived of liberty is subject to judicial oversight within the 6 hour period provided for in the Constitution. As one safeguard, the Commission recommends that additional measures of training, oversight and enforcement be adopted to ensure that prison authorities do not accept detainees without a judicial order authorizing their detention, as required by law.

4. Formulate guidelines for officers of the National Civil Police as to when arrest and detention should in the case of lesser offenses be declined in favor of the issuance of a citation to appear in court or similar alternative measures.

5. Develop training, oversight, and enforcement measures to ensure the use of non-custodial measures in place of preventive detention in accordance with domestic and international norms. In particular, the State should encourage and support specialized training programs for judicial personnel to ensure that preventive detention is applied as an exceptional measure, justified only when the applicable legal standards are met in the individual case.

6. Devote special attention to establishing systems to ensure the judicial investigation, prosecution and punishment of members of the security forces who violate the law by effectuating illegal and arbitrary arrests.

7. Establish an oversight mechanism to periodically review the situation of persons in preventive detention, to ensure that criminal proceedings are expedited, and that persons not judged within a reasonable time are released pending the completion of the proceedings.


Notes Ch. VII_____________________

[1] Almost every violation alleged was verified. 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. 31; Ninth report on human rights of the United Nations Verification Mission in Guatemala (“Ninth Report”) A/53/853, 10 March 1999, at para. 25; Tenth report on human rights of the United Nations Verification Mission in Guatemala (Tenth Report”) A/54/688, 21 Dec. 1999, at para. 14.

[2] See MINUGUA, Tenth Report, Supplement “Casos de violaciones a los derechos humanos,” table 5 (reporting cumulative results of three prior verification periods).

[3] See MINUGUA, Eleventh report on human rights of the United Nations Verification Mission in Guatemala (“Eleventh Report”), A/55/175, 26 July 2000, para. 32.

[4] Hugh Byrne, William Stanley, Rachel Garst, Rescuing Police Reform: A Challenge for the New Guatemalan Government (Washington Office on Latin America 2000), at ch. 4.

[5] See MINUGUA, Tenth Report, para. 15; see generally Eleventh Report, paras. 32-33, 36.

[6] See Una nueva justicia para la paz: Informe Final de la Comisión de Fortalecimiento de la Justicia (1998) at pp. 162-63; MINUGUA, Ninth Report, para. 26, Tenth Report, para. 15.

[7] See IACHR, Report on the Situation of Human Rights in Ecuador, supra.

[8] See e.g., Human Rights Watch, World Report 2000, “Guatemala;” Rescuing Police Reform, supra, as well as press reports concerning, for example, the processing of the Ordoñez Peralta case.

[9] See Standard Minimum Rules for the Treatment of Prisoners, rule 7; see also, Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment, principle 12.

[10] See e.g., MINUGUA, Seventh report on human rights of the United Nations Verification Mission in Guatemala (“Seventh Report”), A/52/330, 10 Sept. 1997, at paras. 26, 28; Eleventh Report, para. 33 (concerning verified cases where the detention of a specific individual known to be detained by the authorities had been denied).

[11] See Seventh Report, para. 26; Tenth Report, para. 15.

[12] UN Centre for Human Rights, Human Rights and Pre-trial Detention [Professional Training Series No. 3] (1994) at para. 44.

[13] In addition to the provisions already cited in section A, above, see Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles 10, 13.

[14] MINUGUA, Tenth Report, Suplemento: Situaciones sobre Derechos Humanos, “Los presos sin condena y el uso de la prisión preventiva,” para. 69.

[15] In addition to the provisions already cited in section A, above, see Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principles 4, 11 and 37.

[16] MINUGUA, La situación penitenciaria en Guatemala, para. 17.

[17] Eluvia Morales Donald González, “Denuncian que 90 por ciento de detenciones es ilegal,” Siglo Veintiuno, 21 April 1999.

[18] MINUGUA, Tenth Report, Suplemento: Situaciones sobre Derechos Humanos, “Los presos sin condena y el uso de la prisión preventiva,” para. 67.

[19] Id., para. 68.

[20]The application of habeas corpus and similar remedies plays a fundamental role in, inter alia, protecting against arbitrary arrest and unlawful detention, and clarifying the situation of missing persons. Such remedies, moreover, may "forestall opportunities for persons exercising power over detainees to engage in torture or other cruel, inhuman or degrading treatment or punishment." UN General Assembly Resolution 34/178 (1979)(commemorating 300th anniversary of act giving writ of habeas corpus statutory force).

[21]See IACtHR, Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87 of Jan. 30, 1987. Ser. A No. 8. See also, Erica-Irene Daes [UN Special Rapporteur] Freedom of the Individual under Law, (1990) at 179 (observing role of habeas corpus as basic required protection under Universal Declaration).

[22] Report No. 12/96, supra, para. 80.

[23] Id., para. 76.

[24] See generally, MINUGUA, La situación penitenciaria en Guatemala, at paras. 5 – 6 (indicating that verification had proven the data seriously inaccurate, principally through under-reporting and under-counting); PDH, Informe Circunstanciado 1999 (reporting that some 67% of prisoners were awaiting trial).

[25] MINUGUA, La situación penitenciaria en Guatemala, para. 15.

[26] Pedro Pop Barillas, “Más de ciento veinte personas en la cárcel sin ser enjuiciados,” Prensa Libre, 9 May, 1999.

[27] Id.

[28] See e.g., MINUGUA, La situación penitenciaria en Guatemala; Una nueva justicia para la paz: Informe Final de la Comisión de Fortalecimiento de la Justicia (1998) at pp. 162-63.

[29] See MINUGUA, La situación penitenciaria en Guatemala, paras. 13-14 (noting the results of a study of the detention facilities in Mazatenango, Suchitepéquez, showing that the majority of those who lacked legal counsel were detained for misdemeanors).

[30] MINUGUA, La situación penitenciaria en Guatemala, paras. 9, 11-14 (referring to misdemeanors such as public drunkeness or disorderly conduct). In an intensive study carried out in 1995, MINUGUA verified more than 12,000 (short or long term) detentions in connection with misdemeanors. Id. para. 12.

[31] See “Tres casos de reos que sobrepasaron su condena,” Siglo Veintuno, 2 June 1998.

[32] See Ramiro González, “Reos de Cobán piden agilización de juicios,” Prensa Libre, 14 de julio de 1999; Elder Interiano, “Doscientos ocho reos obtienen libertad,” Prensa Libre, 30 June 1999.

[33] MINUGUA, La situación penitenciaria en Guatemala, para. 13 (noting that the study of one group of detainees in 1999 demonstrated that the majority of those who did not have legal counsel were detained for minor infractions).

[34] Id., para. 13.

[35] See IACtHR, Suárez Rosero Case, Judgment of November 12, 1997, Ser. C No. 35, para. 77.

[36] See Report No. 12/96, supra, paras. 47, 99.

[37] Article 9(3) of the ICCPR states “…It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should the occasion arise, for execution of the judgement.”

[38] See principles 36(2) and 39, and rules 2.3, 3.4, 3.5, 5.1 and 6.1-.3, respectively.

[39] Carlos Ajanel Soberanis, “Sobrepoblación carcelaria: Aseguran que la mitad de presos deben ser liberados,” Siglo Veintiuno, 4 Mar. 1999.

[40] Id.

[41] See, Report No. 12/96, Case 11.245 (Argentina), in Annual Report of the IACHR 1995, OEA/Ser.L/V/II.91, Doc. 7 rev. Feb. 28, 1996; IACtHR, Suárez Case, Judgment of November 12, 1997, Ser. C No. 35, para. 43, citing Gangaram Panday Case, Judgment of January 21, 1994, Ser. C No. 16, para. 47.

[42] Elder Interiano, “Doscientos ocho reos obtienen libertad,” Prensa Libre, 30 June 1999.



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