United Nations Verification Mission in Guatemala

“ The State has two obligations regarding violations of and crimes against human rights. The first is to prevent, investigate and punish such acts, for which, according to the Comprehensive Agreement, the competent national institutions must function autonomously and effectively. However, these functions must also be carried out in accordance with the Constitution and with international norms regarding human rights; this is a second obligation which concerns legal guarantees as a whole, known as "due process of law". ”

“ The abolition of military jurisdiction in respect of common and related crimes committed by members of the military represents a major step forward in the fight against impunity and a major stride in the strengthening of institutions for the protection of human rights, as it is conducive to their autonomy and freedom of action. ”

“ The institutional restructuring of the police should be based on a philosophy of service with a view to protecting the rights of each individual. As a guarantor of public order and an aid to the Public Prosecutor's Office in the investigation of crime, the police force should ensure internal peace and the safety of the citizens, and in so doing it is empowered to make legitimate use of force when absolutely necessary. Such action should be subject to effective internal controls, since only jurisdictional bodies are empowered to review the legality of police actions. ”

“ These events point to a lack of awareness that, just as every person has the right to demand justice pursuant to the commitment to end impunity, so too does every person accused of a crime have the right to be presumed innocent, to have adequate means of defending himself in court and to receive only the punishment determined under the law and the judgement establishing his guilt. ”

“ The status of human rights in Guatemala is paradoxical. On the one hand, texts such as the Constitution of the Republic, the primary school curriculum or the Educational Programme on Democratic Culture and Human Rights accord human rights a priority place and lay special emphasis on disseminating knowledge of them. On the other hand, as indicated in the Mission's verification work, de facto there is still a strong streak of intolerance and discrimination in the country, which diminishes the chances of achieving peaceful coexistence, and a culture of violence prevails. ”

“ The example of impunity which has the greatest popular impact and arouses the greatest mistrust of the courts among the population is perhaps the release or acquittal of individuals involved in serious crimes or human rights violations. Verification shows that, without precluding the role of pressure, corruption and intimidation, this is caused by excessively broad application of alternative sentences by certain judges and by lack of evidence due to insufficient investigative capacity among the competent bodies (para. 34) . ”

“ The lack of any provisions for compensating the victims of human rights violations through the judicial system makes it even more important to fulfil the commitment given by the Government to assist victims through the adoption of civil and socio-economic measures and programmes and to grant due priority to those most in need on account of their economic and social situations. ”

“ Owing to the grave situation of criminal violence, whose extent and effects on human rights have been verified by the Mission, judges are driven by social expectations to punish rather than to provide guarantees. Under the rule of law, in addition to carrying out his duty to punish, the judge must guarantee that the citizens' rights are protected from any abuse of power. ”

“ The system is based on the criterion of rationalizing the use of State penal power by offering such options as: (a) punishing crime that has a high social cost and reducing the severity of punishment for less serious crimes; (b) avoiding discrimination against the more vulnerable sectors, such as women and indigenous people; (c) scrupulously respecting constitutional guarantees such as the principles of legality and guilt; and (d) guaranteeing the rational and egalitarian implementation of the law. ”

“ The use of State resources to promote the safety and protection of private interests and the strengthening of private security robs State action of its legitimacy and indicates weaknesses in the concept of public safety that must be eliminated as a matter of urgency. ”

“ The educational system in general, and particularly in the field of human rights, is operating in a context devoid of the basic elements necessary for the attainment of its objectives. The various bodies working to promote human rights do so according to institutionally defined objectives and do not coordinate effectively with the others in a concerted effort. ”

“ Once a person has been arrested, the objective has been met and the use of force is unjustified. The seriousness of the practice of mistreating detainees is due not so much to its physical consequences as it is to the vulnerability and defencelessness of the victim, who is often seen as a person without rights. ”

“ The violation of the right to integrity is usually related to the disproportionate or arbitrary use of violence by police officers who are arresting someone or enforcing a court order. When, the use of violence is out of proportion to the objective sought, a case of excessive use of force exists. ”

“ The right to set up and participate in a trade union is a means of exercising freedom of association which has been given special recognition and protection in international norms regarding human rights and in the Constitution and laws of Guatemala. Nevertheless, the Mission is still recording cases where employers have applied strong pressure to prevent the exercise of this right and where the State bodies responsible for guaranteeing and protecting it have failed to carry out their functions in a timely fashion and effectively. ”

“ In this context, defending human rights is said to amount to defending criminals, the death sentence is proclaimed to be the solution to the crime wave and there are instances, which are not strongly condemned in the press, of criminals being lynched as an alternative means of dispensing justice. ”

“ Commitment III. Commitment against impunity 55. In the current situation of impunity, the majority of serious crimes and human rights violations go unpunished. This is not because it is impossible to determine what has happened or to identify the perpetrators; it is due to the inefficiency of the national bodies responsible for investigation, judgement and punishment, as well as the influence that certain groups, mostly those connected with the State, have upon those bodies. This grave situation continues to be the greatest obstacle to the enjoyment of human rights in Guatemala. ”

“ The role of human rights NGOs has been crucial in Guatemala's history. These organizations have managed to remain attuned to the expectations and concerns of Guatemalan society and have contributed to the process of social change in recent years. In order to gain a deeper and broader understanding of their situation and needs and to support their transition towards professionalization in new areas, the MINUGUA/UNDP Joint Unit performed a diagnosis and drew up a plan of action for the strengthening of the NGOs. ”

“ A strengthened penal public defence system is essential in order for the penal process to be truly adversarial, to afford the parties equal means and opportunities and, hence, to offer greater promise of being fair and in accordance with law, and to decrease arbitrariness against victims and those presumed responsible. ”

“ The Mission has conducted training programmes for persons who could potentially disseminate the theme of human rights: outreach workers, teachers, catechists, community leaders and state officials seeking a better understanding of the new penal legislation, have been the priority target audiences. A network of such disseminators has been established, and the target audiences were broadened to include the security forces through courses for army instructors and support for police training programmes. Support was also given to these disseminators for their work with the population at large. ”

“ The Mission considers that among the factors needed for an improvement in public safety are a police system answerable to civilian authority and capable of discharging its responsibilities within the framework of the rule of law and respect for human rights. ”

“ The State continues to fail in its obligation to ensure that serious crimes against persons are properly investigated and punished, as shown by the unwarranted delays in the investigations carried out by the Public Prosecutor's Office and in the basic proceedings that must be certified by judges. ”

“ The shortcomings of the National Police in various proceedings and their chronic weakness in criminal investigation demonstrate the insufficient professionalization of the security forces. The Mission nevertheless welcomes the measures adopted for the strengthening of the National Police Academy which, despite serious budgetary constraints and lack of space, has begun the first regular course for new officers, intended to set up a minimum standard of police training. ”

“ Protection of human rights in the system of administration of justice and through NGOs 150. Protection in the system of administration of justice covers both the victims and the accused perpetrators of crimes. Verification has brought to light serious deficiencies. Overcoming them is the aim of activities to provide support to institution-building in four areas: the Counsel for Human Rights, the Public Defender's Office, the penitentiary system and NGOs working in this area. ”

“ Freedom of association entails respect for any person's decision to join an association of any kind or to leave it with no constraint other than that imposed by law. Of 64 alleged violations, 36 have so far proved to be justified. Many of the violations involving death threats or other threats against integrity and security of person made by members of the army, former military commissioners, or the CVDC, relate to this right, their purpose being to prevent people from leaving the CVDC or to force them to take part in patrols. ”

“ Attempts have been made to deal with the situation by revising certain articles of the current Penal Code and Code of Penal Procedure, providing for more severe penalties for certain offences and restricting the benefits enjoyed by detainees as well as the breadth of their application by judges. Although this measure may help to fulfil the commitment, the worsening conditions of accused persons may endanger the effective protection of individuals from misuse of State authority, without protecting the rights of the victims of crime. ”

“ The absence of general mechanisms for periodically evaluating police personnel, of standard procedures and inspections at all levels of the police force, and the absence of legislation properly regulating recruitment and continued employment in the police all conspire against the goal of making purification an inherent part of police operations. ”

“ The exercise of freedom of expression continues to be adversely affected by high levels of violence and intimidation. In rural areas, the constraints are mostly due to the former military commissioners and the Voluntary Civil Defence Committees (CVDC) , as far as the dissemination of human and indigenous rights is concerned. As for the freedom of the press, the most striking events have been attacks on journalists, particularly the kidnapping and torture of Vinicio Pacheco, of Radio Sonora, on 28 February. ”

“ The disproportionate use of firearms by State agents, reflecting their disregard for human life and their insufficient preparation for using such weapons, is one of the most common causes of death. One of the cases which had the greatest impact on national and international public opinion was that of the death of Pedro Sas Rompiche on 4 February in Antigua, Guatemala. ”

“ They are now subject to compulsory conciliation and arbitration mechanisms. This reform, unlike the provisions of the Labour Code which was applicable previously, enables the State to cancel appointments and contracts without prior authorization from the labour judge when, in the case of a labour dispute, an employee's conduct constitutes grounds for dismissal, and in cases where a strike has been called and is actually taking place, provided that it involves the collective withdrawal of labour or affects an essential public service. ”

“ The fact that the army's participation in police activities was not limited to cooperation with the police and that, in some cases, it extended to a preventive and autonomous role in which the police were marginalized, underscores the need to professionalize the security forces on the basis of a distinction between military and police functions. ”

“ The normalization in the running of the Public Prosecutor's Office and the appointment of its new leadership, thanks to a considerable level of institutional and social consensus, is a positive sign which may lead to a strengthening of the institution and an improvement in the population's perception of its role.
50. The repeated threats and pressure to which judges and prosecutors are subjected demonstrate the urgent need to implement special protection programmes and to create proper coordination among State institutions for that purpose. ”

“ The design of the institution-building projects contains features intended to remedy the shortcomings of the verification process. While the two functions are mutually reinforcing, the timing of their implementation is different: the shortcomings which have been verified can be remedied only if the projects achieve success in the medium term. ”