MINUGUA - Twelfth report on human rights

Fifty-sixth session

Item 55 of the provisional agenda*

The situation in Central America: procedures for the establishment of

a firm and lasting peace and progress in fashioning a region of peace, 

freedom, democracy and development

United Nations Verification Mission in Guatemala

Note by the Secretary-General**

1. The attached document contains the report on human rights of the United Nations Verification Mission in Guatemala (MINUGUA) on the verification of compliance with the Comprehensive Agreement on Human Rights (A/48/928-S/1994/448, annex I). In accordance with the practice established since the Mission’s inception, I shall transmit a copy of the report to the United Nations High Commissioner for Human Rights, with the request that it be brought to the attention of the members of the Commission on Human Rights.

2. The report, transmitted by the Head of Mission, is the twelfth on the subject and covers the period from 1 July 2000 to 30 June 2001, during which the Mission continued to carry out its work and to verify compliance with the commitments contained in all the peace agreements. The results of such verification were reported to the General Assembly on 1 June 2001 (see A/55/973).

3. In my report to the General Assembly (A/55/389), I conveyed the request of the signatories to the peace agreements that the Mission’s mandate should continue. The mandate was renewed until 31 December 2001 by resolution 55/177 of 19 December 2000, in which the General Assembly reiterated to me its request to keep it fully informed.

4. I should like to thank the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG) for their cooperation with MINUGUA, without which the Mission would have been unable to function. Lastly, I wish to express my gratitude for the ongoing cooperation and support provided for the Mission and the Guatemalan peace process by the Member States and the United Nations system in Guatemala.

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Annex

Twelfth report on human rights of the United Nations Verification Mission in Guatemala

I. Introduction
1. During the period from 1 July 2000 to 30 June 2001, the United Nations Verification Mission in Guatemala (MINUGUA) continued to verify compliance with the peace agreements signed between the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG), including the Comprehensive Agreement on Human Rights (A/48/928-S/1994/448, annex I) and the human rights aspects of the Agreement on Identity and Rights of Indigenous Peoples (A/49/882-S/1995/256, annex).

2. By its resolution 55/177 of 19 December 2000, the General Assembly authorized the renewal of the Mission’s mandate until 31 December 2001 and, in view of the persistent shortcomings in the overall human rights situation, encouraged the Government to implement the recommendations contained in the Mission’s previous reports on human rights. The Mission emphasizes the importance of the enjoyment of human rights as a key aspect of the frame of reference for evaluating progress in the peace process as a whole. Evaluation of the human rights situation in Guatemala covers not just quantitative but also, and more importantly, qualitative aspects.

Commitment I: General commitment to human rights
3. During the period under review, 352 complaints involving 3,986 alleged violations of rights accorded priority under the Comprehensive Agreement were admitted, and the existence of 4,821 violations reported during that period or previous periods was confirmed (see appendix).

4. Although in 1998 the United Nations Commission on Human Rights concluded that institutionally there no longer existed an established State policy that violated human rights in Guatemala, Guatemalans feel that the enjoyment of their rights remains precarious because the State has failed in its duty to safeguard them.

5. A key aspect of this situation is that, as a general rule, the State’s institutional response to crimes and violations is neither timely nor effective. Despite the Government’s repeated assertions that it is willing to promote a human rights agenda, institutional shortcomings and lack of coordination among the National Civil Police (PNC), the Public Prosecutor’s Office and the judiciary persist. Inaction or insufficient action on the part of the State causes delays and impunity. One example is the complaints of harassment, threats or attacks against human rights defenders, members of the judiciary and journalists. Lynchings and so-called “social cleansing” operations are another example of the State’s failure to prevent, investigate and punish.

6. Following the mass escape from Escuintla maximum security prison in June 2001 (see para. 52), the Government’s decision to declare a one-month “state of alert”, for which provision is made in the Constitution of Guatemala “in the event of invasion of the national territory, serious disturbance of the peace, activities against the security of the State or public disaster”, was evidence of its failure to adhere strictly to the priority of protecting and safeguarding the rights of the population as a whole.

7. In the Comprehensive Agreement, the parties requested that verification pay particular attention to the rights referred to in this section. At the same time, the other peace agreements contain commitments whose fulfilment would enhance the situation of other human rights, for instance, economic, social and cultural rights, especially for the most marginalized sectors of the population, such as indigenous people and women. Accordingly, the Mission is concerned that lack of progress in implementing the peace agreements as a whole may be affecting the enjoyment of those rights.

Right to life
8. During the period under review, 39 complaints involving 85 alleged violations were admitted, and 22 extrajudicial executions and 13 attempted executions were confirmed. There was an increase in the involvement of municipal authorities, especially auxiliary mayors, who were responsible for the bulk of confirmed violations, and of former members of the Voluntary Civil Defence Committees (CVDCs), who were mainly responsible for lynchings. Members of the armed forces were found responsible for two extrajudicial executions and members of the National Civil Police were found responsible for seven extrajudicial executions and six attempted executions.

9. Lynchings seriously affect the right to life and occur mainly in communities most affected by the armed conflict. Municipal authorities, former CVDC members or military commissioners have often been the instigators, as illustrated by the following case: on the morning of 8 July 2000, nearly 2,000 men from various communities around Xalbaquiej, Quiché, ambushed alleged members of a criminal gang. Eight people were beaten and burnt to death. Several instigators and perpetrators were former CVDC members; some of them were auxiliary mayors at the time and another was working in a municipal corporation.

10. The case of two extrajudicial executions in which there is strong evidence of the involvement of members of the armed forces is especially serious. On 25 May 2000, men in army uniform, armed with rifles and driving a Military Zone 12 military vehicle, arrested Oscar Guzmán García and José Castañeda Alvarez. Between 28 and 29 May, two human heads were found on the banks of the Guacalate river. On 31 May, two decapitated bodies were found on the Alsancía estate in Escuintla. The heads and bodies were found to be those of Guzmán and Castañeda. According to the forensic report, the heads had bullet wounds and the bodies had stab wounds. The region’s military authorities gave no information to the Mission and the National Defence General Staff provided information 11 months later. Neither the PNC Criminal Investigation Service nor the Escuintla prosecutor’s office investigated the possible involvement of military personnel.

11. On 28 January 2001, Luis García Pontaza was found dead in the Zone 18 jail in the capital city. He had been linked to organized crime and proposed as a witness for the defence in the Monsignor Gerardi case (see A/53/853, annex, paras. 8, 14, 30 et seq). Before his death, he had told the Mission that he had resisted pressure from the Presidential General Staff and the Public Prosecutor’s Office (during the investigation of former prosecutor Otto Ardón) to implicate persons connected with the Catholic Church in Monsignor Gerardi’s murder, in return for impunity for his criminal activities. On 8 June, the Third Trial Court convicted agents and former agents of the State of Monsignor Gerardi’s murder and determined that the murder had been a political crime. The sentence contains a direct reference to the existence of a modus operandi, tolerated and abetted by State structures, in the planning, execution and subsequent cover-up of Monsignor Gerardi’s murder.

12. There have been further cases of executions by members of the National Civil Police, in which the pattern described previously (see A/55/174, annex, para. 19) has been repeated: deaths resulting from the excessive use of force or the illegal use of regulation firearms; persons found dead after being arrested and held in custody; and the alteration of facts in police reports to cover up for the perpetrators. 13. On 25 October 2000, in Gualán, Zacapa, Rolando Barillas Herrera was arrested by two police officers, taken to the police substation and placed in a cell at midnight. Around five o’clock in the morning, a police officer found him dead, apparently hanged. The forensic report ruled out the possibility of suicide. According to the evidence, Barillas was beaten severely and, when he was close to death, he was suffocated to make it look like a suicide. The investigations by the Criminal Investigation Service, the PNC Office of Professional Accountability and the Public Prosecutor’s Office have not identified the culprits.

14. On 8 April 2001 in Quetzaltenango, the police caught Julio Alberto Cassola and William Cotom Rodas in the act of stealing a vehicle. They were arrested and taken to the premises of the Criminal Investigation Service, where they were tortured to obtain information about assaults. Although Cassola was seriously hurt, they were both transferred to jail. Early the next day, Cassola was taken to the regional hospital, where he died on 11 April as a result of the beating he had received.

15. A number of relatives of General (ret.) Otto Pérez Molina, who had been a member of the Government delegation that signed several of the peace agreements and who was about to declare himself publicly as the leader of a new political party, were the victims of firearms attacks in Guatemala City over a period of three and a half months. On 11 November 2000, an unknown assailant fired at the General’s son from a vehicle, wounding his wife. The Public Prosecutor’s Office and the National Civil Police showed little willingness to investigate the incident. On 21 February 2001, the General’s daughter was attacked and wounded in the arm by unknown armed assailants. Minutes later, another group of armed assailants attacked the car of Miriam Patricia Castellanos, killing her. The General’s wife was in her car a few metres from the victim’s car and the assailants supposedly mixed up the two vehicles. The Mission has learnt that a specialist from the National Defence General Staff was in his vehicle behind the victim and witnessed the incident, but he has yet to make a statement to the competent authorities and the National Defence General Staff is carrying out its own investigation without any judicial oversight. As a result of these violent incidents, the General’s family left the country.

16. On 5 May 2001, Francisco Arnoldo Aguilar, the widower of Miriam Patricia Castellanos, was murdered in his car outside his home by two unknown assailants. The circumstances rule out robbery as the motive. The victim had dedicated his efforts to shedding light on his wife’s death and was advocating the creation of a citizens’ group against violence and impunity. The Mission encountered difficulties in verifying whether there was due process in this case, but confirmed that the authorities were insisting on linking it to ordinary crime and ruling out political motives.

17. Since December 1996, 78 people have been sentenced to capital punishment. Three have been executed, 28 have appeals pending and 43 have had their sentences repealed. Of the latter, 33 were given prison sentences, eight are awaiting a new trial and two were acquitted. Four convicts lost their lives in the mass escape from Escuintla maximum security prison. The Mission verified violations of minimum judicial guarantees in the trials of Fermín Ramírez and two members of the former National Police, whose trials have reached the stage of enforcement of sentence. Applying the death penalty in these circumstances constitutes summary execution.

18. Of the 28 people whose death sentences remain in effect, 13 were sentenced for kidnappings in which the victim was not killed, a crime that was not subject to capital punishment before the entry into force of the American Convention on Human Rights which prohibits the extension of the death penalty to other crimes. In October 2000, the Constitutional Court ruled that the laws imposing the death penalty for kidnappings where the victim is not killed, which were enacted after the entry into force of the American Convention, are incompatible with the Convention and with article 46 of the Constitution, which gives human rights treaties precedence over ordinary law. Despite this, the Criminal Division of the Supreme Court has maintained the opposite doctrine.

19. On 28 June 2001, the Constitutional Court, with new members, reversed its ruling favourable to the American Convention by rejecting the remedy of amparo lodged on behalf of Ronald Raxcacó Reyes, stating that the death penalty can be imposed even in cases of kidnapping in which the victim is not killed. The appointment to the Court, as an alternate magistrate, of a lawyer who had previously requested the death penalty in such cases compromises its impartiality. This very unfortunate precedent violates the American Convention on Human Rights and engages the State’s international responsibility in this matter.

Right to integrity of person
20. During the period under review, 42 complaints involving 188 alleged violations were admitted, of which 118, committed mainly by members of the police, were confirmed. It is extremely serious that the practice of torture, cruel, inhuman and degrading treatment and ill-treatment persists. The victims are usually young men falsely accused in police reports of causing a public disturbance or brawl under the influence of alcohol; they are arrested at night without a warrant and physically and psychologically abused on police premises.

21. Once such case occurred on 31 July 2000, when PNC officers Arnoldo Alonzo Méndez, Gabriel Ramos Ramírez and Juan Martínez Reynoso, assigned to San Juan Alotenango, Sacatepéquez, arrested José Sánchez Ascencio and took him to the local substation, where they beat him, submerged him in a barrel of water and gave him electric shocks. The next day, after he had been moved to the Antigua prison, the prison governor ordered his transfer to the local hospital because of the state he was in. The medical diagnosis indicated “intense abdominal pain, blood in the urine and internal trauma to the abdomen”. To cover up the incident, the police officers drew up two police reports accusing the prisoner of committing a number of crimes at different times. The PNC Directorate-General ordered the officers’ suspension from duty.

Right to liberty and security of person
22. The main characteristic of the period under review has been the large number of complaints of threats, harassment and intimidation against persons and institutions working for the protection of human rights, civil servants, persons involved in judicial proceedings and journalists critical of public authorities. During the period, 112 complaints involving 479 alleged violations were admitted and 303 violations were confirmed.

23. In some cases of intimidation, political motives cannot be ruled out. The office of the former presidential candidate for the Alianza Nueva Nación, Álvaro Colom, was searched between 11 and 12 August 2000. Computers and documents were stolen, while other valuables were left, along with threatening messages. In March 2001, deputies who had resigned from the ruling party to join the Unidad Nacional de la Esperanza, headed by Álvaro Colom, reported having been subject to threats and intimidation.

24. Two cases of enforced disappearance — one of the most serious violations of human rights — reported in earlier periods were confirmed. One is that of Santos Hernández Suchite, which occurred in Nueva Jerusalén II, La Libertad, Petén. On 20 December 1999, the local auxiliary mayor, Cruz Hernández, accompanied by six other men, arrested the victim in his home, claiming that he had a warrant for his arrest and was going to hand him over to the courts. The victim’s whereabouts are still unknown. His captors threatened his wife if she tried to follow them. In March 2001, a warrant was issued for the arrest of the auxiliary mayor and only one accomplice.

Right to freedom of association and assembly
25. During the period under review, 13 collective complaints were admitted, involving 1,959 alleged violations. The vast majority of the 618 confirmed violations concern the right to organize, for which the judiciary is largely responsible. Responsibility for confirmed violations of freedom of association rests solely with municipal authorities.

26. In the trial of those accused of the violent incidents against several leaders of the Izabal Banana Workers Union which occurred in October 1999 in Izabal (see A/54/688, annex, para. 32), oral proceedings began on 13 March against 24 persons accused of the crimes of coercion, aggravated search and illegal arrest. In addition to the serious deficiencies of the indictment drawn up by the Criminal Court of First Instance of Puerto Barrios (see A/55/174, annex, para. 38), during the oral proceedings the prosecutor’s office and the trial court, despite being authorized to do so and despite the evidence produced, failed to ensure that the characterization of the crimes fitted the incidents or to correctly identify individual responsibilities. On 21 March, 22 of the 24 accused were sentenced to three years’ imprisonment, commutable, for the crimes of aggravated illegal arrest in conjunction with the crime of coercion. The union’s leaders, who had been forced to leave the area after the incidents, had to leave the country.

27. The Mission verified various complaints lodged in January 2001 by the Unión Sindical de Trabajadores de Guatemala, alleging breaches of the laws in force and of International Labour Organization (ILO) Conventions Nos. 87 and 98 on freedom of association and the right to organize. The Third Labour and Social Security Court, for instance, took three years and two months, instead of the legal time limit of 36 hours, to issue a summons after workers called in August 1997 for the Banco de Crédito Hipotecario Nacional to meet with them to sign a collective agreement on working conditions.

28. Recently, serious violations of the right to organize, accompanied by death threats, wrongful dismissal and persecution of union leaders and members, were confirmed, for which the municipal mayors of Cuilapa in Santa Rosa, Tecpán in Chimaltenango, La Gomera in Escuintla and Guastatoya in El Progreso were responsible. Although he was aware of the possible existence of a union dispute which would require the immediate reinstatement of the workers concerned, the Guastatoya labour inspector avoided administrative proceedings by claiming that the corresponding complaint had defects of form.

29. In May and June 2001, there was a resurgence of mass dismissals and violent threats against union leaders on the “El Real” and “El Atlántico” banana plantations at Morales in Izabal department, representing a clear setback in labour relations in the region.

30. At the Santo Tomás de Castilla dock in Puerto Barrios, Izabal, the two main union leaders were threatened and later dismissed after a work stoppage was organized on 24 and 25 February 2001, in a labour dispute arising from changes in the firm’s administration. The Mission verified the presence of senior armed forces commanders at the negotiations.

Right to freedom of expression
31. The right to freedom of expression includes freedom of opinion and investigation, as well as the public’s right to receive objective, unbiased information. During the period under review, this right was affected by alleged threats against journalists and communications media, as well as discrimination in the context of conflicts between the current Administration and print media which are becoming increasingly critical of the political class in general and the Government’s actions in particular. While the television monopoly provides wide coverage of government action, the written press takes positions that are predominantly unfavourable to the executive branch. Both in the capital city and in the country’s interior, threats against investigative journalism reached alarming levels, with State officials found to be responsible in some cases.

32. On 3 January, Claudia Méndez Villaseñor, a reporter with El Periódico who was investigating reports of corruption in a unit of the Ministry of Communications, Infrastructure and Housing, complained that she had received telephone threats from two Guatemala City council members. In a separate incident on 20 February, over 50 people, including Ministry staff, held a hostile demonstration outside the El Periódico offices, making use of State resources. A number of journalists were assaulted. On 1 March, Gustavo Soberanis, of the newspaper Siglo XXI, was threatened with a firearm by the Treasury Inspector when he tried to interview him about alleged expenditures by the Office of the President of the Republic.

33. The editor of El Periódico, Silvia Gereda, and journalist Martín Juárez reported receiving death threats and were attacked on 27 and 30 March respectively. Martín Juárez said that a car with five men in it followed him for two hours and that when he headed for the headquarters of the municipal fire brigade to take refuge, he was intercepted by another vehicle which forced him to stop. While one man aimed a shotgun at his head, another got into his car and threatened to kill him, as well as other journalists and the manager of the newspaper. He continued to receive death threats over the telephone for the next two days. He filed a complaint with the Public Prosecutor’s Office and has been given police protection.

34. In Zacapa in August 2000, Juan Carlos Aquino, a journalist with Radio Novedad, received death threats and was attacked with a firearm in connection with his criticisms of regional public institutions. In December, Marwin Herwing, another Radio Novedad journalist, reported that unknown persons with firearms threatened to kill him after he criticized local politicians in a radio programme. In March 2001 in Quetzaltenango, Ady Violeta Albores was threatened with death and attacked, as a result of which she abandoned an investigation into a building project financed with public funds. In April, Sergio Miranda Calderón, a journalist with the magazine El Sol Chortí in Chiquimula and a member of the San José La Arada town council, published an article denouncing corruption in the management of municipal affairs; he subsequently received an anonymous letter containing death threats.

35. Because of the proliferation of such incidents, the Public Prosecutor’s Office decided on 8 June to centralize all complaints of this kind received since June 2000 in a single prosecutor’s office, the Special Prosecutor’s Office for the Protection of Journalists and Trade Unionists.

36. On 6 December, the General Superintendency of Telecommunications notified the owner of Radio Contemporánea FM, in Quiché, that the station must go off the air because it did not have a broadcasting permit. Although the owner complied, the Superintendency filed in court to have him arrested for using a radio frequency illegally and broadcasting programmes which “attack and offend the dignity and decency of the authorities of the State of Guatemala ...”. Other radio stations in a similar situation were simply fined by the Superintendency. The complainant attributes these incidents to the fact that the radio station’s broadcasts had criticized the departmental governor.

37. With regard to the recommendations made by the Special Rapporteur for freedom of expression of the Organization of American States (see A/55/174, annex, para. 48), a technical commission, consisting of three non-governmental organizations and the Strategic Analysis Secretariat, has been set up to draft a preliminary bill on free access to information in the possession of State agencies. On 27 March, after seven months of work, the Secretariat announced that it would transmit a proposal to the Office of the President of the Republic on 2 April. It drafted a document, most but not all of which was agreed by consensus with the non-governmental organizations.

Commitment to promote rules and mechanisms for the protection of human rights
38. The Mission welcomes the significant progress made with regard to international human rights instruments. In September 2000, Guatemala signed the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women and the Optional Protocol to the Convention on the Rights of the Child on involvement of children in armed conflict. In October, it ratified the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, and in November it ratified the Optional Protocol to the International Covenant on Civil and Political Rights, enabling the Human Rights Committee to consider communications from individuals on violations of the Covenant.

39. On 25 February 2000, Guatemala ratified the Inter-American Convention on Forced Disappearance of Persons with a reservation to article 5 thereof (see A/55/174, annex, para. 72). The reservation is based on an apparent contradiction between extradition for offences of forced disappearance and article 27 of the Constitution, which bars extradition for political offences except as provided for in treaties and conventions with respect to crimes against humanity or against international law. The preamble to the Convention reaffirms that the systematic practice of forced disappearance is a crime against humanity. On this basis, under article 27 of the Constitution forced disappearance would be an extraditable offence and there would be no justification for the reservation.

40. The Mission has drawn attention to the inconsistencies between the present Juvenile Code and both the Constitution and the Convention on the Rights of the Child, as well as to the need for an adoption law. In this context, it welcomes the submission to the Congress in November 2000 of a new legislative proposal on adoptions, which is awaiting a decision. The adoption of implementing regulations for the Act on the Prevention, Punishment and Eradication of Domestic Violence is another positive development.

Commitment II: Commitment to strengthening institutions for the protection of human rights
41. One key element of impunity is the continuing pressure on judicial institutions and members of the judiciary. It is deeply disturbing that, during the period under review, various forms of intimidation and serious acts of violence against those involved in judicial proceedings have continued. Such incidents can be observed both in the day-to-day administration of justice and in especially important judicial proceedings, such as the Monsignor Gerardi case. Their persistence is affecting the independence of the judiciary and efforts to combat impunity.

42. Sometimes, these incidents occur because groups disagree with certain judicial decisions that they perceive as affecting their interests or expectations. Thus, public campaigns by interest groups may involve or encourage intimidation. After the Tenth Division of the Court of Appeals, on 28 November, overturned the death penalty imposed on persons accused of kidnapping a businessman, the Committee of Commercial, Industrial and Financial Associations of Guatemala took out paid advertisements in the press accusing the judges of promoting impunity. In this context, the judge presiding over the court reported that she had been followed and had received telephone threats.

43. The Mission is particularly concerned at the increasing frequency of violent mob incidents, whose intimidating effects result in judicial inaction at the local level. On 5 January 2001 in Santa Lucía La Reforma, Totonicapán, some 300 people forced the justice of the peace, on pain of death, to release an individual arrested for environmental offences and urged him not to order any more arrests for such offences. In Senahú, Alta Verapaz, on 13 March, a mob launched a premeditated assault on the court of the peace and attacked justice of the peace Alvaro Martínez repeatedly, eventually killing him.

44. In other cases, pressure and intimidation are used to prevent the clarification and judicial punishment of serious violations and offences, especially when these are attributed to State agents. Since the beginning of the investigation into the Monsignor Gerardi case, various individuals involved in the judicial proceedings have been followed, intimidated, threatened and attacked. Such incidents have become systematic and have in common the fact that they are planned, using the necessary infrastructure to develop a major operational, logistical and human resource capacity. Their main aim appears to be to force members of the judiciary to abandon the case or to undermine the impartiality of their decisions, which means that such incidents intensify at key moments in the proceedings. During the period under review, coinciding with the start of the oral proceedings, the special prosecutor in the case, Leopoldo Zeissig, was followed and received telephone threats on a number of occasions. Furthermore, Yasmín Barrios Aguilar, a member of the Third Trial Court in charge of the oral proceedings, reported that on 16 March 2001 two individuals tried to break into her house. On 21 March, a day before the start of the oral proceedings, persons unknown threw a fragmentation grenade into her home; the explosion caused material damage.

45. Concern for the security and independence of persons involved in judicial proceedings was reiterated by Param Cumaraswamy, Special Rapporteur of the United Nations Commission on Human Rights on the independence of judges and lawyers, who, on his visit to the country in May 2001, expressed regret at the failure to implement most of the recommendations made following his August 1999 visit. He said that the persistence of the climate of threats against members of the judiciary and the impunity surrounding human rights violations are not conducive to the full implementation of the peace agreements with respect to the administration of justice and are also undermining and delaying the full attainment of the rule of law. He therefore urged the Government to do its utmost resolutely to combat impunity and attacks on the independence of the judiciary.

46. With regard to the commitment to strengthen the Office of the Counsel for Human Rights, a budget allocation of 30 million quetzales (approximately US$ 3,840,000) was approved for 2001. Although this represents an increase of 21 per cent in real terms over the previous year, it falls far short of the 40.5 million quetzales that were requested. Considering the requirements of thorough monitoring of the human rights situation, various sectors that are concerned about the Office agree that efforts to strengthen it, in particular its organization and management, need to be pursued and redirected by providing it with the necessary human and logistical resources for the investigation of violations, so as to consolidate its constitutional mission.

Right to due process
47. The Mission has drawn attention repeatedly to some of the factors that contribute to the impunity prevailing in the country, such as the persistent shortcomings in the system of investigation and, in general, in the administration of justice, the continuing failure to fulfil the obligation to investigate and punish and the unwillingness of many officials to tackle human rights violations and crimes. To give a comprehensive picture of these factors, this section will analyse the situation of due process.

48. During the period under review, 143 complaints involving 1,193 alleged violations were admitted, and 3,672 complaints admitted in various periods were confirmed. The extent of the prevailing impunity can be seen from the fact that 55 per cent of confirmed violations are attributable to the State’s failure to fulfil its legal obligation to investigate and punish. A further 15 per cent are attributable to obstruction of justice, particularly by members of the police through the alteration of police reports. This practice, mentioned in earlier reports, has become almost systematic, and no effective action has been taken to eliminate it.

49. The Mission, which from its very earliest reports identified impunity as the main obstacle to the effective enjoyment of human rights, notes with profound concern that it is an entrenched phenomenon. No real progress has been made in the prosecution of the majority of the most serious and representative cases of human rights violations. In the Xamán case, for instance, after almost six years the proceedings are still in their initial phase and a trial date has still not been set (see A/55/174, annex, para. 61). There has also been no progress in prosecuting the soldiers responsible for the Dos Erres massacre in La Libertad, Petén (see A/55/174, annex, para. 62), for which proceedings were instituted in 1994, even though an agreement on compensation for the victims was reached in May 2001, as part of the amicable settlement proceedings instituted before the Inter- American Court of Human Rights, and the Government acknowledged its responsibility. In the proceedings for the murder of Myrna Mack (see A/52/946, annex, para. 44), it was reported that testimony implicating the accused soldiers had been lost and the court ruled that all proceedings conducted since 12 May 1999 were null and void, a ruling which the Mission feels undermines the credibility of the justice system in its efforts to combat impunity. The Inter-American Commission on Human Rights, having confirmed the delay in the administration of justice by the national courts in this case, decided to transfer the complaint to the Inter- American Court of Human Rights. No meaningful progress was made either in shedding light on the disappearance of Mayra Gutiérrez (see A/55/174, annex, para. 34), despite the investigations made by the Office of the Counsel for Human Rights. Lastly, the judicial proceedings concerning clandestine mass graves have, for the most part, been at a standstill since the exhumations were carried out.

50. In the proceedings for the murder of Monsignor Gerardi, defence counsel tried repeatedly to delay the start of oral proceedings and to have several persons involved in the judicial proceedings removed; the oral proceedings nevertheless began on 22 March. The climate of threats, harassment and intimidation, which affected members of the trial court, staff of the special prosecutor’s office, lawyers for the Catholic Church and witnesses, reached such a level that the home of one of the judges was attacked with a fragmentation grenade.

51. In its 8 June ruling, the court established the existence of the crime of extrajudicial execution and accused Colonel (ret.) Lima Estrada, Captain Lima Oliva and former specialist Obdulio Villanueva of carrying out the crime and priest Mario Orantes Nájera of being an accessory. The judicial ruling left the way open for criminal prosecution of the members of the Presidential General Staff chain of command that was active in April 1998. The conclusion of this first stage of the judicial proceedings, which was welcomed both nationally and internationally, has been viewed as a milestone in the process of strengthening the rule of law and combating impunity. The Mission urges the Guatemalan authorities to take all necessary steps to guarantee the life and physical safety of the judges, prosecutors and witnesses. It also urges the Attorney General and the government authorities to provide their full support for the continuation of the prosecution of the members of the Presidential General Staff chain of command that was active in April 1998, an obligation which the Public Prosecutor’s Office must carry out automatically, regardless of what happens with the appeal that has been lodged.

52. On 17 June, 78 of the 144 inmates of the Escuintla maximum security prison, including those indicted and convicted in cases which have had a major impact on society, escaped with the cooperation and complicity of most of the prison staff. The soldiers in charge of security on the prison perimeter were nowhere nearby at the time of the escape. This escape is a serious setback for efforts to combat impunity, further exacerbates the public’s feeling that it is defenceless against crime and is especially discouraging for the witnesses, judges and prosecutors who have played an important role in favour of the effective trial and punishment of dangerous criminals.

53. Lynchings and acts of mob violence, both spontaneous and premeditated, continue, seriously undermining governance in various municipalities. Attacks on police stations, threats of lynching to force authorities to sign illegal agreements or resign, the release of alleged criminals as a result of public pressure, threats against members of the judiciary and serious clashes between communities have occurred with alarming frequency. During the period under review, there were 88 lynchings or attempted lynchings against 190 people, 37 of them fatal.

54. Some lynchings were especially serious, both because of their fatal consequences and because of the cruelty involved. One was the lynching on 28 November 2000 in Las Conchas, Alta Verapaz, in which five people were burnt alive. Others include cases already mentioned: the lynching at Xalbaquiej and the lynching of the Senahú justice of the peace (see paras. 9 and 43). In the former, the Mission verified that the arrest warrants issued on 8 March 2001 at the request of the Public Prosecutor’s Office had previously been denied because of the alleged risk to property and persons linked to the justice sector. Such reasons are completely extraneous to the goals of the criminal prosecution and simply reaffirm the impunity of those responsible for these acts.

55. Although the PNC Criminal Investigation Service produced detailed reports on facts and culprits in a number of cases, official investigations into most of the lynchings are simply a matter of form or non-existent. One example is the ruling in first instance on the 29 April 2000 lynching in Todos Santos Cuchumatán, Huehuetenango, in which a Japanese citizen and a Guatemalan died (see A/55/174, annex, para. 69). The ruling is a positive sign, in that it was objective and made a point of stating that the investigation of the facts must continue, but at the same time it demonstrated the impunity surrounding such acts, in that the authorities responsible for the investigation were unable to gather sufficient evidence to prosecute the real culprits. Such pervasive impunity encourages further lynchings.

56. The absence of a State policy against this crime, consisting of prevention and intervention in crisis situations, has meant that authorities of the executive branch and the judiciary have refused repeatedly to play an active role in preventing lynchings, and that commendable action by the Office of the Counsel for Human Rights and the police has not had all the desired effect.

Commitment IV: Commitment that there are no illegal security forces and clandestine structures; regulation of the bearing of arms
57. The Government recognized that it has an obligation to combat any manifestation of illegal security forces and clandestine structures, whose existence is incompatible with unlimited respect for human rights. There are signs that the influence and involvement of these groups in illegal and criminal activities has increased, but their clandestine nature and the complicity they enjoy makes them difficult to verify. The Government must combat the impunity which they enjoy, especially the tolerance, acquiescence or complicity of some public officials.

58. There has been an increase in violent deaths and other crimes attributed to illegal structures. The Mission is verifying disturbing signs of a link between some of these incidents and the existence of a group that allegedly includes members of the former Presidential General Staff “Archives” and the Treasury Guard. This group has ties to people in public office and apparently eludes police control because of the logistical support it receives. There is compelling evidence of its involvement in the “social cleansing” of small-time criminals and leaders of organized crime.

59. As for clandestine groups operating within prisons (see A/55/174, annex, para. 81), there was a significant increase in deaths of prisoners which have not been cleared up, as well as intimidation of prisoners and their families. With regard to the death of Luis García Pontaza (see para. 11), the prosecutor in the case said that it was a suicide, but the head of the office of the special prosecutor for organized crime expressed doubts about this hypothesis. The President of the Republic expressed the Government’s readiness to cooperate in shedding light on the incident and indicated that the Strategic Analysis Secretariat would investigate it.

60. The existence of structures which conduct parallel investigations without being authorized to do so was confirmed in the trial for the murder of Edgar Ordóñez Porta (see A/55/174, annex, paras. 18 and 64). In the oral proceedings, it became clear that members of military intelligence had interfered in the investigation and that the Public Prosecutor’s Office had not bothered to investigate the evidence thoroughly. The ruling handed down by the Escuintla trial court on 28 August 2000 concludes that “... in the present case, the principle of objectivity fully established in our Code of Criminal Procedure was violated ...”, since “the entity solely responsible for investigation is the Public Prosecutor’s Office and in the present case that entity, through its actions, allowed other institutions to carry out that activity ...”. The ruling alludes to testimony on the involvement of the group known publicly as “La Oficinita”, as well as of military intelligence agencies and the then Minister for Defence.

61. Testimony from various sources confirms that “La Oficinita” has continued to be involved sporadically in criminal investigation activities. In most cases, its involvement did not produce the desired results or increase the effectiveness of the criminal prosecution. On the contrary, it distorted the official investigations and even prevented the conviction of alleged criminals for lack of evidence. The Mission has been informed of other illegal activities attributed to the group, which all point to the complicity or involvement of public figures in illegal structures. In the case of prosecutor Rocksanda Gálvez, there are indications that prosecutors linked to the group used contacts in the judiciary and the police to forge an arrest warrant and have her illegally detained on 5 December.

62. In many cases, the security staff of public officials, especially deputies and mayors, do not meet the legal requirements for bearing arms. Sometimes, such staff are used to intimidate or pressure communities, political opponents and commercial competitors, as well as to facilitate or abet illegal activities. This situation was verified in the departments of Chiquimula, Escuintla, Petén and Santa Rosa. In Nueva Concepción and Tiquiscate, Escuintla, extrajudicial executions have gone unpunished because of the support of lawyers and the inaction and complicity of members of the police and local judicial officials.

63. The actions of irregular armed groups are often of a criminal and insurgent nature. They usually engage in robbery or banditry, but they also put forward political demands and refer to the prevailing social and political situation, sometimes simply to cover up their crimes. They tend to consist of people with actual military experience of the armed conflict and young people who were not involved in it. Their appearance has been most frequent in areas where the paramilitary forces were very active during the armed conflict. Their growing presence, especially in the departments of Quetzaltenango, San Marcos and Solalá (see A/55/174, annex, para. 76 and A/54/688, annex, para. 77), seems to be related to the greater availability of members and weapons.

64. The Mission is concerned at the existence of criminal groups within private security companies, which repeatedly commit crimes that have a major impact on society, as well as at the State’s failure adequately to monitor such companies and the companies’ failure to monitor their employees. Currently, 81 companies are legally authorized to operate, only four more than in the previous period (A/55/174, annex, para. 85), but half of them do not fulfil any legal requirements. According to the Ministry of the Interior, 53 companies have not completed the relevant procedures and 20 are functioning clandestinely. Although the Ministry reported the latter companies, the various oversight agencies have yet to begin investigations.

65. The problem is complicated by the large number of such companies and the background of some of their members. According to Ministry of the Interior figures, they employ over 25,000 people — more than the National Civil Police and nearly as many as the armed forces; other sources estimate their numbers at three times those of the National Civil Police. The members of such companies, most of which are owned by serving or former officers of the armed forces or former members of the National Police, include persons alleged to have committed serious human rights violations and persons dismissed from State institutions for committing illegal acts.

66. In its previous report (A/55/174, para. 85), the Mission referred to the involvement of two private security guards in the deaths of three people, including journalist Roberto Martínez. Although one guard was convicted of the crime and the Ministry of the Interior ordered the closure of the company for which he worked, CUTEPPSI, on 4 October 2000, the company continues to function even though, according to official records, it has been dissolved. Other cases reveal the involvement of members of private security companies in raiding a pharmaceutical laboratory and in killing or seriously injuring various people, including minors. Casa Alianza filed a judicial complaint for the rape of a minor by members of an illegal security company. The Mission is disturbed at the lack of progress in approving the bill submitted to the Congress that would regulate the functioning of such companies, as provided for in the Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society.

Commitment VII: Safeguards and protection for individuals and entities working for the protection of human rights
67. The Mission is gravely concerned at the increasing number of complaints of threats, including death threats. Of the total number of complaints received during the period under review, 171 violations have so far been confirmed. Many involve persons working in institutions for the protection and promotion of human rights, who have been intimidated using various forms of harassment: possible phone tapping, surveillance of their homes or places of work, being followed in the street and receiving threats over the telephone or in letters and pamphlets. The headquarters of the institutions concerned have also been the targets of numerous robberies and raids. Although some of these incidents look like ordinary crimes, their frequency suggests that they are part of a systematic campaign. They specifically target individuals and institutions working for the protection of human rights when such persons or institutions have been sharply critical of public authorities or have advocated the trial of members or former members of State institutions. Moreover, as already indicated, judges, prosecutors and journalists have also been targeted by such incidents. The reported incidents all have in common the fact that they have not been cleared up and the perpetrators have not been punished.

68. On 1 August 2000, on the Inter-American Highway in Chimaltenango, two unknown persons pretending to be journalists from El Periódico seized Celso Balam, an employee of the Human Rights Legal Action Centre, and beat him up. They kept him prisoner for three hours during which they questioned him about the analysis of the human remains found in exhumations, the place where those remains were being stored and the method being used to identify the perpetrators. The victim was forced to swallow sedatives before being released.

69. Other incidents which have not been fully cleared up and ought to be mentioned include the 4 September 2000 raid by four armed men on the headquarters of the Familiares de Desaparecidos de Guatemala association; the October attacks on the headquarters of the Mujeres en Solidaridad association and the Mujer Vamos Adelante association in Guatemala City; the threats against the Rigoberta Menchú Foundation, which intensified in the days leading up to 30 November, when the High Court of Spain was deciding whether it had jurisdiction over the complaint of genocide filed with it in late 1999; and the two occasions in 2000 and four so far in 2001 on which the headquarters of the Centro de Estudio, Información y Bases para la Acción Social was attacked and robbed. In March 2001, members of the Movimiento Pro Justicia received threats because of their public positions on the election of judges to the Constitutional Court.

70. On 5 May 2001, Barbara Ann Ford, an American nun working on the mental health programme of the Quiché diocese, was shot and killed in Zone 9 of the capital city. The murder appeared to be the work of ordinary criminals and, thus far, verification indicates that this may indeed be the case. However, the Public Prosecutor’s Office has done little to investigate it and the Mission’s work has been constantly obstructed by the special prosecutor in charge of the case. The Mission found it disturbing that, as soon as this tragic incident became known, the Ministry of the Interior, apparently with very little evidence to go on, publicly ruled out the possibility of a motive other than ordinary crime.

71. On 6 June 2001, the Asociación para la Justicia y la Reconciliación, made up of the communities which were the victims of the 11 massacres that took place in 1982, filed a complaint for the alleged crimes of genocide and crimes against humanity against the current President of the Congress, General (ret.) José Efraín Ríos Montt, who was President of the Republic at the time, and against members of his Armed Forces High Command during that period. The next day, staff of the Human Rights Legal Action Centre, which is advising the association, were followed and received telephone threats and, in incidents confirmed by the Mission, its headquarters was kept under hostile surveillance.

72. On the night of 11 June 2001, Barbara Rose Bocek, an American citizen belonging to an Amnesty International delegation on mission in Guatemala, was accosted by two armed men as she was preparing to enter her room in a hotel located in an exclusive area of the capital city. The men threatened her, bound her hands and feet, gagged her and left her in a deserted part of the emergency staircase. She was found in this state by hotel staff and a mission colleague in the early hours of 12 June. The mission’s remaining activities were suspended and its members left the country on 13 June. When news of the incident became public, the only official who commented on it was the Minister for the Interior, who, without any firm evidence, accused Amnesty International of having staged the entire incident.

73. The State has a legal duty to prevent, investigate and punish all crimes and violations. In the Comprehensive Agreement, it assumed the commitment to take special measures to comply with this duty when harassment, intimidation and threats affect persons and institutions working for the promotion and protection of human rights. This commitment is a long way from being fulfilled: the Mission has verified that repeated acts of intimidation have been neither investigated nor punished. This situation entails serious consequences and risks. First of all, the failure to clear up such incidents justifies the concern that a motive other than ordinary crime may exist, prompting speculation about the possible involvement, acquiescence or tolerance of agents of the State. Secondly, the State’s inaction or limited response creates among victims the perception that the authorities are not really interested in halting this growing phenomenon, fuelling their fears and their distrust of the competent State institutions. Lastly, hasty public statements by high-ranking officials dismissing the incidents of which human rights defenders are victims weaken the determination, motivation and commitment of lower-ranking officials and authorities to conduct the corresponding investigations. Impunity in such cases exposes victims to the threat of further and more serious intimidation. The failure to take appropriate action increases the risk of this phenomenon becoming an integral part of the climate of social conflict in the country.

Commitment VIII: Compensation and/or assistance to the victims of human rights violations
74. As indicated in the sixth report on the verification of compliance with the peace agreements (see A/55/973, para. 29), there has not been the necessary progress in providing compensation for victims of human rights violations. The Peace Secretariat has begun to evaluate the pilot compensation projects implemented in the country’s interior. In the meantime, a “negotiating framework” is being prepared for readjusting a national compensation plan on which consensus was reached between the Peace Secretariat and the Multi-institutional Forum for Peace and Harmony.

75. On 27 June, the Government issued Governmental Agreement No. 263-2001 setting up the Commission for Peace and Harmony. The Agreement did not incorporate all the recommendations of the Clarification Commission (see A/53/928, annex), and the Multi-institutional Forum and the Counsel for Human Rights initially refused to join the new Commission. The Mission urges the Government and the organizations that are supposed to join the new Commission to work together on the adoption of the governmental and legislative measures needed to set up a body with the power to promote and oversee full compliance with the recommendations of the Clarification Commission.

III. Final observations
76. The situation of human rights in Guatemala is closely linked to the extent of compliance with the peace agreements. It has not been possible to ensure the population’s widespread enjoyment of economic, social and cultural rights and to fulfil the expectations generated after the signing of the peace agreements, because many important commitments remain to be implemented. For that reason, a large part of the population, especially the most disadvantaged sectors, such as indigenous people, women and poor peasants, have yet to feel the benefits of peace. The pressing need for those commitments to be implemented in practical terms threatens to raise the level of conflict in the country. The rescheduling of commitments offers a new opportunity to meet the challenge of complying with this national agenda.

77. The end of the internal armed conflict and of an institutional policy that violated human rights represented a qualitative and quantitative improvement. After the demobilization of URNG, the redeployment of the armed forces and the disbanding of the military commissioners and the Voluntary Civil Defence Committees, the Mission turned its attention to the new National Civil Police, the Public Prosecutor’s Office and the judiciary. Verification is being carried out amid difficult circumstances that limit the enjoyment of human rights, such as criminal violence, lynchings and “social cleansing” operations. In addition to the climate of threats and intimidation, there have recently been actual attacks that curtail the action of members of the judiciary, journalists and human rights defenders. Furthermore, the inherited pattern of impunity is becoming a systematic, cross-cutting phenomenon, as illustrated by the failure to clear up and punish almost all the serious violations that took place during the armed conflict and most of the significant cases that have occurred more recently.

78. The influence of situations left over from the armed conflict is obvious and the State authorities must give priority to eradicating them. The Public Prosecutor’s Office bears special responsibility for breaking the vicious circle of impunity. The armed forces, for their part, must promote an institutional policy that eliminates any possibility of obstruction of justice.

79. To cope with the high level of criminal violence and insecurity, the country inherited State institutions that were seriously flawed. Although the agreements give priority to strengthening the police and the judiciary as a means of combating crime, that process will be a gradual, medium-term one. It is the State’s inability to safeguard human rights that has made the public feel defenceless and has increased tolerance for illegal, increasingly violent phenomena such as lynchings and “social cleansing”. In this context, the Mission’s overall findings confirm that the human rights situation is not improving and that, as already mentioned in previous reports (see A/54/688, annex, para. 97 and A/55/174, annex, para. 14), there are renewed signs that it might be deteriorating.

80. Lynchings are a major source of violations of fundamental rights, as well as a factor in undermining governance in several parts of the country. Increasingly, the population is using the threat of lynching as a means of attracting the authorities’ attention. The absence of a policy for preventing and combating lynchings, as well as the widespread impunity they enjoy, is making it increasingly easy to carry them out in a premeditated manner, including against authorities and members of the judiciary. Their causes go deeper than lack of education or ignorance of the law. They are more prevalent in places where the armed conflict had a greater impact, where models of coexistence and the social fabric were destroyed and where human development and social marginalization indices are worse. These factors, combined with the slow pace in strengthening civilian power and State institutions, the involvement of former members of paramilitary structures and the lack of progress in restoring indigenous customary law, must be taken into account in any action to eradicate the practice of lynchings.

81. The actions of illegal groups are threatening the exercise of human rights. State agents have been involved in “social cleansing” operations, in the conduct of parallel investigations and in the obstruction of judicial proceedings. Other groups, within private security companies over which there is insufficient State control, commit serious crimes. In order to strengthen and give credibility to the process of building democratic institutions that uphold the rule of law, the authorities must combat any manifestation of such groups, especially the key component of their impunity, namely, the tolerance, acquiescence or complicity of some public officials.

82. Threats and intimidation against members of the judiciary have been a habitual means of preventing the clarification and punishment of crimes and human rights violations. It is essential that the State promote an effective policy for the protection of judges, prosecutors, witnesses and lawyers that is not limited to judicial proceedings. The necessary funding has not been allocated for implementing the act on this subject (see A/54/688, annex, para. 39).

83. In a context of harsh criticisms of public authorities and calls for the institution of judicial proceedings against members or former members of State institutions, the large number of cases of harassment and threats against human rights defenders reported during the period under review is matched by similar incidents against judges, prosecutors and journalists, suggesting that they may form part of a systematic campaign of intimidation. Although some cases look like ordinary crimes, the failure to clear them up and to punish the perpetrators justifies the climate of fear and the assumption that they are linked to persons and practices from the past. It is clear that the commitment to take special measures to protect against all such situations and to investigate them exhaustively has not yielded tangible results.

84. During the period under review, there was an increase in threats and intimidation against journalists and the media. The climate of political polarization and the criticisms made against the authorities are no justification for the State’s failure in its duty to guarantee complete freedom of the press and to investigate all such cases exhaustively. To permit the full exercise of freedom of expression and the building of a democratic society, it is also necessary to expand access to the media, especially for indigenous people, avoid media concentration and monopolies and safeguard the public’s right to receive objective, unbiased information.

85. To preserve the institutional accountability of the National Civil Police and earn the public’s trust, the timely investigation, dismissal and punishment of all police officers guilty of violations are essential. To that end, the necessary coordination must be established between the police and the Public Prosecutor’s Office. Clearing PNC ranks of such police officers would be the best tribute that could be paid to all the police who risk or have lost their lives in the line of duty.

86. The adoption of legislation to enhance the protection of human rights is essential for ensuring that the population has a legal framework that guarantees its rights. It is important that the Government take the necessary steps to give full effect to the international instruments signed by Guatemala, especially those related to crimes against humanity, as well as to sign other instruments such as The Hague Convention of 1993 on Protection of Children and Cooperation with Respect to Intercountry Adoption.

87. The legislative agenda for the peace process includes a number of legislative proposals whose adoption would ensure progress in the enjoyment of human rights. Likewise, to advance the process of national reconciliation, based on appropriate implementation of the recommendations of the Clarification Commission, it is important that a joint effort be made to set in motion the Commission for Peace and Harmony.

88. The challenges and difficulties described above do not as yet seem to have met with an adequate response from the Government. To tackle those problems effectively and ensure that the human rights situation improves and does not deteriorate as mentioned earlier, it is necessary and urgent that renewed, broad-based efforts be made, under the leadership of the President of the Republic. The key elements of the human rights agenda which the President has recognized on numerous occasions should feature prominently in such efforts, as well as the new tasks and priorities reflected in the concerns of human rights defenders and the international community.

Appendix
Statistics on human rights violations during the period from 1 July 2000 to 30 June 2001

MINUGUA - Duodécimo informe sobre derechos humanos