CHAPTER VIII: THE SITUATION OF PERSONS DETAINED IN THE GUATEMALAN PENAL SYSTEM
1. The prison system is intended to serve several principal objectives. It is responsible for holding detainees awaiting trial when it has been judicially determined that this is necessary to protect the ends of justice. It is also charged with holding prisoners serving a judicially imposed sentence, in which case the ultimate objective of the system is the rehabilitation of the offender and his or her reincorporation into society. The exercise of custodial authority carries with it special responsibility for ensuring that the deprivation of liberty serves its intended purpose, and does not result in the infringement of other basic rights.
2. As has been discussed in previous chapters concerning the administration of justice and the right to liberty, deficiencies in the processes to investigate and prosecute crime are impeding and distorting the ability of the State to protect the security and rights of the citizenry. Those responsible for serious crimes, including human rights violations, often escape being held accountable, while persons suspected of misdemeanors are often held in preventive detention in contravention of the law. Deficiencies in the criminal justice system necessarily have a strong adverse impact on the ability of the prison system to fulfill its objectives. For example, delay in investigation and prosecution often results in prolonged preventive detention, which in turn exacerbates the problem of overcrowding.
3. Further, for persons deprived of liberty in Guatemala, the insufficient human and material resources accorded to the penal system mean that basic human needs often go unmet. Such rudimentary requirements as adequate infrastructure, sanitation, nutrition and access to medical care often go unfulfilled, and the stated commitment of the system to rehabilitation is not met. As is the case with many countries in the hemisphere, there is an enormous gap between the stated aspirations of the prison system and the disturbing reality of the situation.
4. The authorities of the State have recognized that the prison system is in crisis. Many of the problems have been diagnosed and the challenges defined in general terms through the work of the Commission to Transform the Penitentiary System, which issued a series of basic recommendations in 1999. Steps to implement those recommendations have, however, been few and far between. The Commission looks forward to receiving information on the implementation of additional concrete measures to resolve the pending challenges highlighted below.
A. Legal Framework
1. National Law
5. Article 19 of the Constitution provides the basic protections that apply to persons within the prison system. It indicates that the system is oriented to the rehabilitation and reincorporation of the prisoners, and must ensure that they are treated in accordance with the right to respect for their human dignity. This means that the State may not discriminate in their treatment, or subject them to any form of torture or cruel treatment. They may not be made to do work incompatible with their state of health, or taxed, or made the subject of scientific experiments. This Article further provides that sentences must be served in facilities for this purpose, which are defined as civil in nature, and run by specialized personnel. Further, detainees have the right to communicate with their family, attorney, cleric or doctor, and where pertinent, their consular official. In accordance with the Constitution, “the infraction of any of the foregoing norms gives rise to a cause of action for damages, and for the Supreme Court of Justice to order the immediate protection of the right concerned.” Finally, the State is required to “create and support the conditions for exact compliance with these safeguards.”
6. A number of sources have pointed out that the implementing laws of the penal system are outdated, and that the adoption of a new comprehensive law would greatly assist in the challenge of reforming the system.
2. International Law
7. Article 5 of the American Convention establishes the right of every person to have his or her "physical, mental, and moral integrity respected;" consequently, torture and cruel, inhuman, or degrading punishment or treatment are prohibited. Article 5 establishes specific guarantees for persons deprived of liberty, on the basis of the fundamental principle that: "All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person." Accordingly, accused persons must be segregated from convicted persons, and shall be subject to "treatment appropriate to their status as unconvicted persons." This also requires that minor detainees be treated in accordance with their special status. Finally, this requires that the punishment of imprisonment "shall have as an essential aim the reform and social re-adaptation" of the prisoner.
8. The foregoing principles are complemented by other international obligations undertaken by the State of Guatemala, including the provisions of the ICCPR, to which it 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, and the guidelines adopted by the First United Nations Congress on Prevention of Crime and Treatment of Offenders, which provide important guidance in applying the basic principles already cited. With respect to the treatment of minors in detention, 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.
9. The present chapter examines the situation of persons deprived of their liberty within the Guatemalan prison system, with particular attention to the way in which the frequent failure to comply with basic requirements of domestic and international law is inconsistent with the duty to treat all detainees with respect for their inherent dignity as human beings.
B. Overview of the Prison System
10. According to the statistics available from the National Headquarters of the Penitentiary System, as of November of 1999 there were 8204 persons under custody in the penitentiary system – 7,705 men and 499 women — in 35 detention centers throughout the country. While the size of the prison population was relatively stable through the mid-1990’s, running at just under 6,000 detainees, it has since experienced a dramatic and ongoing increase. Because the capacity of the system has not been amplified to correspond to this increase, overcrowding is a serious issue in many facilities, and its multiple effects will be discussed below.
11. Of the total number of persons detained, approximately two-thirds are detained pending trial, and one-third are serving a judicially imposed sentence. According to official figures, a small percentage is preventively detained or serving a sentence in relation to misdemeanors such as drunk and disorderly behavior. On this point, other sources have reported that the percentage is much higher. And, as noted previously, deprivation of liberty for misdemeanors is inconsistent with national law and the principle of proportionality. This question is analyzed in more detail in chapter VII, concerning the right to liberty.
12. As the statistics indicate, the vast majority of those detained pending trial and serving sentences are male. These men are mainly of working age, 21 to 40 years old, with little or no education, and with limited or no economic resources. While the number of women detained relative to men remains low, it too has increased dramatically in recent years. While the male prison population increased by approximately 39% between 1995 and 1999, the female population rose by 70%.
13. Many of those detained are parents of young children. In most cases, those children remain with other family members. However, a significant number of young children are housed with their detained mothers or fathers in certain detention facilities. In the absence of available statistics on this question, MINUGUA noted in a recent report that during its visits it had observed 30 young children housed in two facilities for women, and 75 housed in one facility with their fathers. The Commission received consistent information on this point during its on site visit. In this regard, in its response to the draft report, the State indicated that detention centers for women provide a nursery for children of interns under 3 years of age “where they are given special attention, with acceptable conditions of health and education.” Further, the State reported that in November and December of 2000, approximately 80 women and 120 children who had been living with interns were removed from the Granja Modelo de Rehabilitación Cantel, department of Quetzaltenango. It indicated that, “currently, the centers for men to serve prison sentences are not inhabited by women or children.”
14. As a preliminary concern, the Commission observes that the DGSP only runs 16 of the 35 detention facilities. The rest, particularly those in the interior of the country, are under the direct supervision of the local Police. This raises two interrelated issues. In the first place, international standards on detention contemplate that, as a general matter, the authority responsible for the investigation of crime and arrest should not be the authority responsible for administering detention. This is a safeguard against abuse, and an essential rationale behind requiring prompt judicial supervision of detention. In the second place, reports indicate that detainees are not just held in these facilities for a day, but may be detained for long periods in such facilities. This situation is incompatible with Article 19 of the Constitution, which provides that detention facilities are to be run by personnel with specialized training, as well as with the similar provisions of the UN Standard Minimum Rules.
15. In any case, personnel under the authority of the prison system have extremely limited access to opportunities for training. Working conditions for prison guards are unsatisfactory in a number of respects that have a direct bearing on the administration of the facilities and such basic questions as security. While guards are called upon to protect citizen security against escapes and to maintain order within the facilities, they must carry out these functions absent adequate training, support or remuneration. Because many facilities are understaffed, guards are often at greater risk with respect to their own personal security. In relation to this question of training, in its response to the draft report the State indicated that the implementation of a Penitentiary School had been initiated, with the development of a strategic plan to seek internal and external resources for its institutionalization and support.
16. It may also be noted that there has been a tremendous turnover in the authorities responsible for the administration of the prison system, as well as various detention facilities. None of the high officials who assumed their positions in 1998, including an assistant director, and directors of security and finances, lasted out the year. The director of the system resigned in 1999 before a replacement for the assistant director had been found. The replacements for the directors of security and finances left within a year. Among the authorities the Commission interviewed during its visit, the Assistant Director of Pavón had been in his position for only three months, and the Director of Zone 18 was about to resign.
17. In recent reports, the Ombudsman for Human Rights has established that the functioning of the penitentiary system is affected by corruption, overcrowding and the violent deaths of inmates in a context where 70% of persons deprived of their liberty have not yet been convicted. In his view, the cause of this crisis is
due to the fact that the system is directed by persons without experience or capacity for the direction of penal centers, giving rise to the constant violation of the human rights of those interned. This has given rise to violent conflicts in protest of the overcrowding, poor nutrition, difficulties with access to medical attention, poor hygiene conditions, the serving of sentences absent classification, and even worse, the maintenance of persons suffering from mental illness in conditions of social abandonment due to lack of adequate attention.
18. The diagnosis of the Ombudsman points out the absence of a penitentiary policy in accordance with the fundamental standards enshrined in international law and within domestic law itself. As far as resources are concerned, although in recent years there has been a noteworthy increase in the budget for the penitentiary system, there are indications that the funds have not been appropriately channeled to improve the conditions of the inmates or the working conditions of the prison staff. Further, prison personnel indicate that the system remains seriously underfunded.
19. During its in loco observation the Commission visited four facilities in the area of Guatemala City. First the Commission visited the Model Rehabilitation Farm Pavón (hereinafter “Pavón”) which houses convicted prisoners. Next the Commission visited the “Center of Constitutional Reinstallation Franjas Rafael Reyes Coligras” (hereinafter “Pavoncito”) which houses both prisoners and detainees awaiting trial or a final decision on their case. The Commission then visited the Preventive Detention Center of Zone 18 (hereinafter “Zone 18”) which, although mainly intended for detainees awaiting trial, also houses convicted prisoners. Apart from these male detention centers, the Commission visited the Women’s Penitentiary Center Santa Teresa (hereinafter “Santa Teresa”). Finally, the Commission visited the Center for the Observation of Minors “Las Gaviotas” and “Los Gorriones” which will be referred to in Chapter XII concerning the rights of children.
20. The Commission has identified a number of priority challenges to be met on the basis of information available from State and other reliable sources, as well as from its own observations during the in loco visit. These challenges are connected with internal and external security, the classification and separation of inmates and detainees, prison conditions, health and the potential for rehabilitation.
C. Internal and External Security
21. The Commission considers the issue of security in Guatemalan prisons a cause of serious concern, both with respect to the right of society to safety and justice, as well as the right of those within the facilities to personal integrity. Inhuman conditions and untrained personnel, combined with corruption and lack of oversight have resulted in acts of internal violence, protests, strikes and repeated escapes that generate a growing sense of insecurity on the part of the citizenry. The last several years have been marked by a surge in the number of escapes of presumably dangerous offenders, dozens per year, that have caused justified indignation and alarm in the population. In its response to the draft report, the State emphasized that, since 2000, there had been a marked decline in escapes from detention centers.
22. The consistent repetition of these episodes confirms the inadequacy of the resources employed to control and transport prisoners and detainees and, in some notorious cases, the levels of corruption that permit complicity between the offenders and state officials. For example, the Commission recently learned that eleven prisoners convicted of serious crimes escaped from Zone 18 without resistance from the authorities and despite the tight controls that the Commission found in place during its in loco observation.
23. The Commission is aware that the Executive has authorized the Army to cooperate in the maintenance of security in the penitentiary facilities of the country, and that this has been the case at Pavón, Zone 18, Granja Penal Canadá and Granja Penal Cantel since 1998. As the Commission has observed in related contexts, the Army is not an appropriate entity to ensure the exercise of custodial authority over civilians by the State. The military mission is not intended to be compatible with civilian law enforcement; it has a different object, and employs different means. This is clearly recognized in the peace accords, which call for a redefinition and separation of these vital functions. The activities in reference constitute a setback in compliance with this commitment.
24. The system requires an increase in the number of guards with the establishment of specialized selection criteria for recruitment and training programs for those selected. During its visit to Pavón and Pavoncito, the Commission verified that the State employed a reduced number of security personnel to guard the facilities. Pavón had 1200 inmates, with 27 guards responsible for running the facility and accompanying prisoners summoned to court. Pavoncito, with approximately a thousand prisoners and detainees, had 60 guards working every 25 days on a rotating basis. Prison authorities there told the Commission that at least 40 more guards were needed.
25. The Commission verified that at least in these two facilities, however, the guards do not enter the areas where the inmates live. The disciplinary power within the facilities is exercised by the detainees and prisoners themselves through so-called “Committees of Order and Discipline.” Such Committees are headed by an inmate reportedly chosen “unanimously” by the rest of the inmates and who enforces authority mainly through violence and threats. The Commission on the Strengthening of Justice characterized that in these facilities:
There is no regulation as to what constitutes prohibited offenses, applicable sanctions, or what authority is competent to apply those. Inside these prisons a code of conduct is developed to which the prisoner must submit if he or she wants to survive. This produces different levels of power and degrees of violence that, among other things, generate rebellion, resistance or solidarity, depending on the circumstance.
26. In Pavon, the head of the Committee of Order and Discipline himself showed the Commission around the facility at the request of the authorities. When visiting Pavoncito, the Commission found itself constantly escorted by the 140 members of the Committee, armed with long sticks, as part of an intimidating display of authority. When the Commission inquired regarding the purpose of the weapons, one of the leaders of the Committee explained “it is for respect.”
27. The Commission is very concerned by information received which indicates that these committees are used in many cases to abuse and persecute the most vulnerable inmates, and by the open abdication of official custodial authority in certain facilities and its impact on the fair treatment of inmates and the protection of their right to life, physical integrity and non-discrimination.
28. The situation in the Preventive Detention Center Zone 18, where there is no Committee of Order and Discipline, merits separate consideration. This facility employs 60 guards to cover internal services, the doors, and transportation of detainees summoned to court, in a facility currently holding more than 1,400 detainees and dangerous prisoners. The insufficient number of security personnel has a serious impact on the conditions of detention at that facility, where inmates are only allowed one hour of recreation per day. It may also be noted that, according to the information gathered during the visit, the prison staff at Zone 18 regard the Grupo UNAPU (treasury guard) who are serving a 15-year sentence at that facility, as “security colleagues.” In relation to the need to have “a policy of internal discipline that does not permit that certain inmates persecute others in the name of ‘order,’” in its response to the draft report the State indicated that:
the eradication of the Committees of Order and Discipline was initiated in 2000. In this respect, the first, which had existed in the Preventive Detention Center known as Pavoncito, was dissolved in the month of June. Thereafter, in September, that which had been operating in Granja Modelo de Rehabilitación Cantel in the department of Quetzaltenango was disbanded. Currently, the Committee of the Granja Modelo de Rehabilitación Canadá, in the department of Escuintla, is in the process of being eliminated.
29. The Commission is extremely concerned about the number of killings, suicides, and unexplained deaths that have occurred in certain facilities over the last several years. These incidents manifest various problems in the States’ compliance with its custodial obligations. In July 1999 four inmates were tortured and hung at the High Security Center in Escuintla. This Center had been redesigned to house maximum security inmates, but that design included housing up to 48 inmates together in one sector, with one bathroom, and only one hour a day for recreation outside the sector – conditions inviting friction. According to reports, the authorities of the facility indicated that they had not been aware of the killings at the time they occurred, and that it was a question of inmates settling scores amongst themselves.
30. In October of 1999, the Ombudsman for Human Rights reported on a series of incidents in 1998-99 resulting in the deaths of a total of seven inmates and one attorney in Zone 18, one inmate in the preventive detention center for women of Zone 18, and one inmate in Pavón. In six of the cases, it appeared that the deaths were the result of attacks by other inmates, including strangulation, shooting, stabbing and, in one case, poisoning. The attorney was killed by an inmate while in the visiting area of the prison. One case appears to have been a suicide, although it has not been clarified. Another case, involving a recently detained inmate, was almost certainly a suicide by hanging due to emotional and mental distress. In the final case, the recently detained inmate was so mentally and emotionally disturbed that he brought about his death by bashing his head against a wall.
31. In each case, the Ombudsman established the responsibility of the pertinent authorities for having failed to take necessary safeguards. With respect to those inmates killed in attacks, the Ombudsman highlighted the failure of measures of security and control. In one case he noted reports that a fight had ensued between the two inmates after they had been drinking alcohol, and noted the lack of control over prohibited substances. In another case he noted negligence in the delay between the time of the finding of the poisoned prisoner and his transfer to the hospital. With respect to those who apparently died at their own hands as a result of mental and emotional distress, he highlighted the failure of the authorities to screen detainees upon arrival to ensure proper classification and the availability of necessary medical and psychological treatment.
32. In other incidents, four prisoners were hung in their cells in the high security prison in Escuintla on July 13, 1999, the day they arrived there after having been transferred from the preventive detention center in Zone 18. Those killed had themselves just been sentenced for having killed two prisoners in Zone 18 in July of 1998. Press reports indicate that another death in Zone 18 in 1998 was the result of an overdose of drugs and/or alcohol.
33. The Commission has also received information about frequent incidents of threats, intimidation, attacks and persecution among inmates, including as a result of allowing the so-called security committees to decide questions of internal discipline. The State is responsible for overseeing the conditions and activities of the inmates, and preventing situations where the weaker or otherwise more vulnerable are at the mercy of the strong. The prison system exists to effectuate the deprivation of liberty when required to serve the ends of justice; the State may not allow those deprived of liberty to be persecuted by other inmates. The measure required is proper oversight to prevent the occurrence of such incidents, and to ensure that those that occur are subject to rapid, just measures of discipline.
D. Classification and Separation of Inmates and Detainees
34. Articles 5(4) and 5(5) of the American Convention provide that “accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons” and that minors while subject to criminal proceedings shall be separated from adults ....” This fundamental principle is also contemplated in Standard Minimum Rule 8, which provides that untried persons must be kept separate from convicted prisoners and young prisoners from adults. In relation to the separation of those persons held in preventive detention and those subject to judicially imposed prison sentences, the State provided information in its response to the draft report concerning the divisions established in Ministerial Accord 73-2000.
35. It has long been acknowledged that persons entering the system are not properly screened or held in separate facilities according to the law. Although the issuance of Accord 73-2000 of the Ministry of Interior was announced in May of this year to begin addressing this failing, reports indicate no significant advances. The Ministerial Accord establishes the classification of each facility, and was to be followed by a study aimed at transferring detainees and prisoners so as to effectuate the separation required by law. The Commission looks forward to receiving information on developments in this regard.
36. As things presently stand, the system for registering detainees does not satisfy the minimum standards required to properly classify and separate inmates. For example, the registries fail to account for the criminal record of detainees, thereby impeding their proper classification into categories according to degree of dangerousness. In some cases the registries do not even provide accurate information towards the computation of the time served by inmates, which may cause confusion at the time of release or when trying to exercise the right to defense.
37. The information available indicates that, with the exception of Pavón, the rest of the facilities intended for convicted prisoners – such as Granja Canada, Granja Cantel and Puerto Barrios— also house persons held in preventive detention, under similar conditions. Conversely, some preventive detention centers such as Pavoncito and Zone 18, house dangerous convicted inmates. Ironically, the Commission learned during its visit that the bad behavior of prisoners at Pavón – governed by a strong Security Committee (see supra)— is sometimes punished with transfer to a facility for persons in preventive detention, usually Pavoncito or Zone 18, where they are expected to have fewer privileges.
38. There is no appropriate separation of inmates according to crimes committed, and as explained supra, persons convicted for misdemeanors who cannot afford to pay fines must comply with sanctions involving the deprivation of liberty alongside criminal offenders. The Commission received information during its on site visit indicating that inmates who misbehave in Zone 18, for instance, may be placed in the area of maximum security alongside persons convicted for drug trafficking and kidnapping.
39. As mentioned, the American Convention and the UN Minimum Rules establish that minors up to eighteen years of age must be held separately from adult detainees or prisoners. Article 20 of the Guatemalan Constitution similarly establishes that minors can on no account be held in prisons or detention centers for adults. The State has established a number of Observation Centers for Minors, two of which were visited by the Commission. Compliance with international standards and domestic law in this area is jeopardized by the combination of a poor system of inmate registration and the fact that many individuals lack proper personal identification. During its in loco observation at Pavoncito and Zone 18, the Commission did not detect the presence of minors in the facilities and was reassured by the authorities that minors were exclusively held at the appropriate institutions. However, during its visit to the Center for the Observation of Minors “Las Gaviotas”, the Commission interviewed a minor who had been previously detained in Zone 18 simply because the authorities considered that he looked old enough to be 18 years old and he lacked the means to prove that he was only 15.
40. The information available also indicates that the justice system for minors and the Observation Centers for Minors are concentrated in the capital. In the interior of the country, minors are usually held together with adults at the same detention facilities.
41. International standards dictate that upon entering detention, persons should be assessed by an officer with appropriate training to note signs of injury or illness, the influence of alcohol or other drugs and the apparent mental state of the detainee. Injured persons, persons under the influence of alcohol or drugs or likely to commit suicide should be identified and placed under supervision until examined by a practitioner. In the case of persons suffering from infectious diseases, they should be separated from the rest of the prison population to prevent such diseases from spreading. Within the prison system, however, there is no procedure in place for the testing and adequate screening of inmates and detainees in this respect.
42. The Commission is particularly concerned with the care, supervision and education given to prisoners or detainees who have tested positive with HIV or are suffering from AIDS, but who do not necessarily need to be separated from the general population. During its in loco observation, the Commission inquired to the authorities regarding the presence of HIV positive prisoners or detainees suffering from AIDS at the facilities. In most of the cases, the authorities assured the Commission that there were no cases in their facilities. They acknowledged, however, that inmates are not tested. The Commission has learned that there have been a number of deaths unofficially attributed to AIDS in some of the facilities.
43. The lack of an appropriate assessment and classification of prisoners and detainees at the moment of their arrival has a particularly serious impact for persons suffering from psychological problems. They are normally kept with the rest of the inmates or, in the case of antisocial behavior, may be sent to isolation cells as a form of punishment, which has the potential to worsen their condition.
44. The Commission has established that the states of the system have the obligation to provide access to care to ensure the health and welfare of prisoners affected by mental disorders or illnesses, and that this obligation extends to persons who display antisocial behavior. In this respect it has found that neglecting the special medical needs of a detainee affected by a psychological disorder who was kept in isolation before his death constituted a violation of Articles 4 and 5 of the American Convention. In such cases, the violation of the right to physical integrity is considered to be particularly serious because the person suffering from the psychological disorder is under the custody and control of the State and therefore in a particularly vulnerable position.
45. Some facilities, such as Zone 18 and Granja Canadá, have special areas for homosexual prisoners. There have been allegations that, at least in Zone 18, they have been subjected to degrading treatment and sexual violence by the authorities. There is also information indicating that they are subject to discrimination regarding the enjoyment of recreation and access to food rations.
E. Conditions of Detention
1. Infrastructure and Overcrowding
46. Guatemalan prisons and detention centers present structural deficiencies relating to their age and lack of maintenance, as well as to the fact that many were not built for the purpose of serving as penitentiary facilities. Accordingly, problems with the way that space is allocated aggravate the situation of overcrowding. During the in loco observation the Commission verified that none of the six facilities visited had an evacuation procedure in place in case of fire, and there were no fire extinguishers despite the fact that the closest fire brigades were at a considerable distance.
47. The Commission observed overcrowding in a number of the facilities it visited, and some prison officials acknowledged that this was a chronic situation. In some of the facilities visited, the insufficiency of available beds meant prisoners slept on the floor.
48. In terms of the statistics, it must be noted that there are some inconsistencies even among those reported as being from official sources. Further, the criteria by which the State defines the maximum capacity of its prison facilities is not clear, but does not appear to include the number of available beds in its calculation. The availability of a place to sleep and adequate bedding are minimum requirements for any detainee.
49. First, at the time of the Commission’s visit to Pavón, authorities at the facility indicated that the maximum capacity was 1500, and that it then housed 989 prisoners. The Commission did not note evident overcrowding during its observation, and found that conditions in this facility were better than those at others visited. However, data published by MINUGUA at the end of 1999 indicated that the maximum capacity of the facility was 800, the number of beds was 500, and that 1246 persons were housed there.
50. Second, the Commission was informed during its visit to Pavoncito that the maximum capacity was 1,000, and that there were then 1,150 persons held there. Data reported by MINUGUA at the end of 1999 reflected the same maximum capacity, and indicated that there were 800 beds available, and 1021 persons housed there.
51. Third, the Commission observed a dramatic combination of overcrowding and inhuman conditions during its visit to Zone 18. It was told at that time that the maximum capacity was 1360, and that 1762 detainees were then housed there. MINUGUA reported at the end of 1999 that the maximum capacity was 1000, the number of beds available was 800, and that 1593 persons were housed there.
52. Fourth, during its visit to Santa Teresa, the Commission was informed that the maximum capacity was 360, and that the center then housed 260 inmates and 19 children between 0 and 3 years of age in the nursery. At the end of 1999, MINUGUA reported that the maximum capacity was 100, the number of beds available 90, and the size of the prison population 132.
53. The problem of overcrowding found in these and other facilities within the system is acknowledged to stem from the marked increase in the prison population since 1995, the insufficient expansion of the infrastructure to meet this increase, and the chronic delay which characterizes most aspects of the criminal justice system, leading to prolonged preventive detention and exacerbating overcrowding. This overcrowding stresses facilities and resources that are inadequate to support the growing number of inmates, which in turn causes friction among inmates and between inmates and the authorities.
2. Sanitation and Food
54. During its visit to Pavoncito, the Commission found problems with the water supply in the few areas designated for personal hygiene, and the scarcity or lack of essential elements like soap. The areas where the prisoners sleep were marked by strong odors. The Commission is particularly concerned with the conditions in Zone 18 where inmates are kept in their cells between 9 p.m. and 5 a.m. and are only allowed to have access to the toilet areas after that hour. The facility was inundated with strong odors coming from the common areas where the detainees were locked up in large numbers.
55. The Ombudsman for Human Rights and other sources have expressed concern with respect to the hygiene facilities. For example, in early 1998, the local office of the Ombudsman carried out a visit to the Preventive Detention Center in Cuilapa, Santa Rosa, where personnel observed overcrowding (49 detainees in a facility with a maximum capacity of 25), a lack of potable water, insufficient beds and bedding, and toilets overflowing with excrement. The Commission on the Strengthening of Justice noted in its report that some 70% of the penitentiary facilities in Guatemala are marked by serious deficiencies in sanitation that may affect the health of their population. This is aggravated by the lack of proper medical attention (see infra), checks, or controls on the infectious diseases that tend to propagate with overcrowding.
56. The Commission has received periodic reports of serious sanitation and hygiene problems in certain facilities. It was on the basis of claims of this nature that, in 1998, the Commission granted precautionary measures in the case of Diego Esquina Mendoza and others (case 11.998), who were in preventive detention in Sololá in such poor conditions that their health had been compromised, and requested that the State take the measures necessary to protect their personal integrity.
57. During its on site observation, the Commission was informed that the four
adult facilities visited did not have a kitchen and that both inmates and state
personnel were fed three times a day by a catering service. The testimonies
gathered amongst the inmates consistently indicated that the rations provided
were too small to satisfy their needs. The information available indicates that
they must either pay or their families must regularly provide supplements to
their rations, particularly in the facilities of the interior of the country.
F. Availability of Medical and Psychological Treatment
58. During its in loco observation, the Commission visited the health units of Pavon, Pavoncito and Zone 18. Both Pavón and Pavoncito have one full time nurse on weekdays and are visited by doctors four times a week. None of the units were supplied with medicines. In Zone 18 there is a doctor available from Monday to Friday for two hours in the morning and two hours in the afternoon. There is no full time nurse and there are no medicines in the infirmary. The MINUGUA-PNUD study confirmed that most of the medical equipment available is obsolete. The State reported in its response to the draft report that, in the five principal detention centers of the capital city, the penitentiary system includes paramedic personnel and one doctor who makes periodic visits, as well as two doctors on duty to attend to urgent situations.
59. The study prepared by MINUGUA-PNUD indicates that inmates at Guatemalan facilities are mainly affected by respiratory infections, skin diseases, trauma, diarrhea and urinary infections, among other problems. Over 25% of the subjects interviewed were also affected by sexually transmitted diseases.
60. In case of emergency, a judge must authorize transfer of the sick person to hospital, but the process of authorization is not efficient and, as the inmates explained to the Commission during the visit, there are no vehicles available for that purpose. As noted above, in a recent case, the Ombudsman for Human Rights found that the authorities at Zone 18 were responsible for the death of a convicted prisoner where prompt medical attention was not provided.
61. As discussed above, the MINUGUA-PNUD study indicates that convicted inmates and detainees suffering from psychological disorders are generally kept together under the same conditions as the rest of the inmates, with little medical or psychological attention. When the authorities detect the need for special treatment, the person is taken to the National Hospital for Mental Health for ambulatory care. In serious cases the patient remains at the hospital for intense treatment and is later returned to the facility. In its response to the draft report, the State reported that “psychiatric administrative offices had been set up to enable group programs for psychological treatment to be established in the short term” in the preventive detention centers for men of Pavoncito, COF, Santa Teresa, Cantel and Canadá.
62. The Commission is seriously concerned about the situation of these individuals who are in a particularly vulnerable situation under the control of the State. The penitentiary system must provide proper psychological attention to these inmates and keep them in an appropriate place, conducive to their recuperation, while it is determined whether they should receive care at a medical institution.
G. The Aim of the System: the Question of Education, Work and the Goal
63. The guidelines established by the First United Nations Congress on Prevention of Crime and Treatment of Offenders provide that "the purpose of and justification for sentences of imprisonment are in essence to protect society from crime." This objective can be attained only if the time spent in custody is used to ensure that the offender, once released, will obey the law and through appropriate treatment in prison. The Guatemalan Political Constitution establishes that the penitentiary system must tend to social re-adaptation and reeducation of inmates and that the State must create and promote the conditions necessary to reach these goals.
64. However, the information available indicates that under the current system, detainees await trial with limited opportunities for educational or work activities, and convicted prisoners serve their sentences under conditions that seriously hinder the potential for rehabilitation and readaptation. As already mentioned, 70% of the prison population has no access to activities tending to rehabilitation as they are awaiting trial or sentencing. Although the rest the prison population would normally be entitled to rehabilitation programs, an important number of convicted prisoners have no such access due to the fact that they are housed in detention centers intended for persons in preventive detention, such as Pavoncito and Zona 18. The problem of overcrowding also plays a role in the lack of such opportunities, as there is simply no space in some facilities in which to carry them out.
65. Another area of concern is the isolation suffered by persons detained or serving sentences in facilities which are far away from their place of origin. The Commission is particularly concerned about the impact of this situation on indigenous detainees and prisoners. Although there is no official data on the subject, reports suggest that a significant percentage of the prison population is indigenous, and that these persons are often held far away from their homes, and are at risk of losing the community ties that are integral to their culture. Their isolation and exposure to discrimination is dramatically accentuated by the fact that there are no bilingual personnel or interpreters at the facilities.
66. Convention 169 of the International Labor Organization, to which Guatemala is a Party, provides that penal sanctions imposed on indigenous persons should preferably be of a different nature than that of deprivation of liberty. In 1999 the Guatemalan Supreme Court itself embraced the idea of substituting prison sentences with community work as an expression of the application of indigenous customary law privileging compensation to the victim and the community. The Commission values this forward-thinking application of the law, and considers that community justices of the peace and other lower courts should be encouraged to apply sanctions according to these principles.
67. As indicated, access to family members can be a critical need for persons in detention, and support from family may play an especially important role in relation to the question of rehabilitation and eventual reincorporation in society. The Commission has received information to the effect that many male inmates are permitted conjugal visits, although in the absence of alternatives, these take place in the cells. The Commission was told that such visits did not take place in Zone 18. In its response to the draft report, the State provided updated information to the effect that conjugal visits had been introduced in this Center, and that the area designated for this purpose had been improved. The information available indicates that female inmates do not have access to such visits. The Commission is aware of no objective justification for such a distinction on the basis of gender, and calls for prompt attention to this situation of inequality.
Conclusions and Recommendations
68. A properly functioning prison system is a necessary aspect of guaranteeing citizen security and the proper administration of justice. The Coordinator of the Commission to Transform the Penitentiary System indicated in 1998 that there had never been a serious effort to modernize the Guatemalan prison system. A number of basic challenges in this regard have been identified and defined. What is required is the decisive allocation of human and material resources to implement solutions.
69. Prisons must be adequate to contain persons who pose a danger to society and provide the possibility of rehabilitation for those who will reincorporate themselves in society. Those housed in prisons may be deprived of their liberty, but are entitled to respect for their other fundamental rights. In particular, the right to be treated with respect for one’s dignity must always be respected, and basic human needs such as bedding, food, and medical and psychological attention must always be met. The American Convention, the UN 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 provide excellent guidance on what is required to ensure that persons deprived of liberty are treated with respect for their dignity. Where prisons are not subject to the necessary investment of attention and resources, their function becomes distorted. Instead of providing protection, they become schools for crime and anti-social behavior leading to recidivism in place of rehabilitation.
70. On the basis of the foregoing analysis and conclusions, the Commission recommends that the State:
1. Establish specialized recruitment, screening and training programs for all personnel assigned to detention facilities, with special attention to those who work in direct contact with inmates.
2. Improve reception procedures to ensure that every person received in a detention facility is (1) assessed by a competent official to identify those who may be ill, injured, at risk of harming themselves, or otherwise require special attention, to ensure that such persons receive the supervision and treatment required; and (2) screened by medical personnel for infectious diseases to ensure isolation from the general prison population where necessary and access to proper medical treatment.
3. Establish systems to separate persons in preventive detention from those serving judicially imposed sentences, and to ensure that minors are not detained in adult facilities, even temporarily.
4. Allocate resources sufficient to ensure that every person held in a detention facility has available: safe drinking water; sanitary facilities adequate for the maintenance of personal hygiene and health, including access to toilet facilities at all times; appropriate space, light and ventilation; food of sufficient calories and nutrition; and an adequate mattress and bedding.
5. Improve the systems in place to ensure that: such medical and psychological care as is needed is readily obtainable; every facility is stocked with basic medical supplies, and that, of the personnel on duty at any time, there is someone trained to respond to health emergencies; and, when it is not possible to adequately treat inmates within the detention facility, that procedures are streamlined to ensure prompt access to hospital or other care.
6. Adopt additional measures to ensure that, in cases where young children are housed in detention centers with a detained parent, their best interests prevail in establishing relevant policies, and that they have access to the nutrition, health and educational services necessary for their proper development.
7. Take the measures necessary, given that conjugal visits are permissible, to allow these to take place in conditions which are reasonable, and which do not discriminate between inmates in different facilities or between male and female inmates.
8. Adopt the measures necessary to guarantee non-discrimination in the treatment of inmates to ensure that indigenous persons held in the prison system may communicate with personnel in their own language, and that all inmates may practice their own religious beliefs.
9. Take additional steps to provide educational and work opportunities to persons in preventive detention, and to prisoners seeking rehabilitation.
10. Adopt an internal discipline policy which does not permit some inmates to persecute others in the name of “order,” and which ensures equality of treatment among inmates; and ensure that there is a system in place for inmates to complain about problems and abuses within the facilities and for such complaints to be met with effective investigation and disciplinary action.
11. Further fortify the applicable procedures to ensure that any case involving the injury or death of an inmate is met with swift and effective investigation, prosecution and punishment.
12. Establish a permanent, independent oversight mechanism responsible for the periodic inspection of detention facilities.
13. Devote additional human and material resources to accomplishing the foregoing objectives, with special priority given to increasing the number of guards available to provide security, ameliorating the situation of overcrowding, and to ensuring that the basic human needs of all inmates are met.
Notes Ch. VIII___________________
 Granja Pavón, Granja Cantel, Granja Canadá, Cárcel de Escuintia, Preventivo Zona 18, Preventivo Fraijanes, Centro Femenino COF, Santa Teresa, El Progreso, Antigua Guatemala, Chimaltenango, Mazatenango, Cobán, Zacapa, Puerto Barrios, Sta. Elena Petén, Totonicapán, Sololá, Ratalhuleu, San Marcos, Sta. Cruz Quiché, Cuilapa, Salama, Jalapa, Jutiapa, Chiquimula, Quetzaltenango, Coatepeque, Huehuetenango, Nebaj, Sacapulas, Chichicastenango, Chajul, Cotzal, y Tiquisate.
 See generally MINUGUA-PNUD “Programa de Mejoramiento del Sistema Penitenciario. Fase Diagnóstico,” Guatemala, 1995.
 See MINUGUA, La Situacion Penitenciaria en Guatemala, April, 2000, p. 110.
 See id., p. 11.
 See id. p. 4.
 See generally, UN Centre for Human Rights, Human Rights and Pre-trial Detention (1994) paras. 66, 154.
 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolutions 663 C (XXIV) of July 31, 1957 and 2976 (LXII) of May 13, 1977 (hereinafter "Standard Minimum Rules"), Article 46(3). The Standards specify that detention facilities must be run by professional prison officers, with civil service status and specialized training.
 Ombudsman for Human Rights, Informe Anual Circunstanciado 1999, Guatemala, January 2000, p. 191. See also Ombudsman for Human Rights, Informe Especial a la CIDH, Guatemala, August 1998, p. 17.
 Id., p. 192.
 Comisión de Fortalecimiento de la Justicia, supra, p.161.
 Acuerdo Gubernativo 87-2000, cited in MINUGUA, supra, p. 15.
 Comisión de Fortalecimiento de la Justicia, supra, p. 160.
 See MINUGUA, p. 13.
 See id. para. 30.
 Ombudsman for Human Rights, Tejiendo en Mañana. Edición Especial N° 5. La Crisis del Sistema Penitenciario, Segunda Parte.
 Maynor Amézquita, “Castejón: Nunca ha existido un intento serio de modernizar el sistema penitenciario,” 8 Sept., 1998, Siglo Veintiuno.
 “Autoridades de presidios separarán a reos,” 23 May 2000, Prensa Libre.
 See MINUGUA, supra, p. 5.
 MINUGUA, supra, p.11.
 UN Centre for Human Rights Human Rights and Pretrial Detention. A Handbook on International Standards on International Standards relating to Pre-Trial Detention, New York and Geneva, 1994, p. 30.
 Id., p. 19
 IACHR, Report 63/99 Annual Report of the IACHR 1998, paras. 78 to 82. See also, Report N° 28/96.
 MINUGUA-PNUD, supra, p. 44.
 Ombudsman for Human Rights, Contrastes 2000: Resumen de las resoluciones del período comprendido entre septiembre y diciembre de 1999, Ref. Exp. S.R. 007.-98/DS.
 Id. p. 159.
 See Annual Report of the IACHR 1998, OEA/Ser.L/V/II.102, Doc. 6 rev., Apr. 16, 1999, ch. III.2.A.
 MINUGUA-PNUD, supra, p. 69.
 Id. p. 70.
 Expediente N° 9-3-99 JEMT-IA.
 MINUGUA-PNUD, supra, p. 37.
 MINUGUA, supra, p. 12.
 Maynor Amézquita, “Castejón: Nunca ha existido un intento serio de modernizar el sistema penitenciario,” 8 Sept., 1998, Siglo Veintiuno.