THE ADMINISTRATION OF JUSTICE
In the Report on Guatemala, the IACHR paid particular attention
to the basic challenge of creating a judicial system that provides
effective protection for the population’s rights, it being the
national judiciary that necessarily serves as the first line of
defense for individual rights and freedoms. The Commission stated that
an independent and effective judiciary is an essential element of a
modern democratic system, with the capabilities of the legal system in
harmony with the country’s development goals.
In the Fifth Report, the Commission noted that although the
State of Guatemala had undertaken a number of positive actions aimed
at strengthening the system, impunity still prevailed in cases
involving human rights violations both past and present. This impunity
controverts the State’s obligations under national and international
law, subverts the most basic principles underlying the peace accords,
and undermines the rule of law. The inability of the judiciary to
provide protection for basic rights and the lack of public confidence
in State mechanisms exacerbates the potential for social conflict. The
IACHR identified another manifestation of the shortcomings of the
justice administration in the absence of an appropriate response to
such serious violations as, for example, lynchings or the threats and
attacks made against victims, witnesses, lawyers, and judges in
reprisal for their efforts to secure justice.
In light of these conclusions and in connection with the right
of all persons to free and effective access to the facilities and
institutions of justice, the Commission offered the State the
1. Continue and fortify its positive work in increasing the number
and quality of judicial facilities established throughout the country.
Intensify efforts to modernize the administration of justice,
including through the expansion of initiatives to implement effective
procedures for managing judicial files and court dockets.
2. Greatly enhance its nascent efforts to provide interpretation
services in judicial proceedings to ensure that indigenous inhabitants
may exercise their right to judicial protection and guarantees under
conditions of equality with the rest of the population.
3. Intensify efforts to improve the access to justice of the
indigenous population by: expanding initiatives designed to orient
local institutions of justice to respond to local needs and respect
positive traditional practices for conflict resolution, with their
principles, criteria, and procedures; expanding community outreach
programs; and by further incorporating the participation of the
indigenous sector–at both the national and local levels–in the
design and implementation of judicial policy.
4. Further increase the amount of public spending allocated to the
administration of justice, continuing the progress seen in the State’s
compliance with its commitment to date in this area.
the Administration of Justice
The Commission has received no information about the
implementation of measures to increase the number of judicial
facilities or to modernize those that exist. With respect to measures
for modernizing the administration of justice, the State reported that
the judiciary is working on the modernization of the justice system
and that a series of committees have been set up to study, analyze,
and propose mechanisms for strengthening justice. However, the
Commission has received no information about the specific steps taken
toward that goal.
With respect to the reach of the judiciary, in its comments to
this report the State said that to assist the population in securing
easier and more effective access to justice, it had increased the
number of courts in areas that had historically been denied those
services; these areas are currently being favored by pilot projects,
such as the bilingual judges and officials program, enabling people to
express themselves in their own language. The State referred to a
series of mechanisms created to provide police, civil, judicial, and
other services in order to resolve conflicts away from the courts,
particularly those involving land ownership.
Guarantees and Access to Justice by the Indigenous Population
As regards the second recommendation, in its 2001 verification
report MINUGUA said that the State of Guatemala had increased “the
number of positions for court interpreters in areas with indigenous
populations and had encouraged the hiring of judges proficient in
indigenous languages in municipalities with majority indigenous
populations.” The Commission commends the State’s efforts;
however, considering that around half the population of Guatemala
belongs to Maya, Xinca, or Garífuna peoples, those efforts must be
At this juncture it should also be pointed out that these
efforts must not only be directed at the translation of languages
other than Spanish within the country’s justice system; they must
also aim at training court workers to understand Guatemala’s
indigenous peoples, who have their own languages and cultures, and at
publicizing information about the administration of justice (rights,
procedures, etc.) in the languages of Guatemala’s indigenous people.
respect to the third recommendation, it should be recalled that the
Guatemalan Constitution recognizes, respects, and promotes the
lifestyles, customs, traditions, and forms of social organization of
the country’s indigenous peoples. Additionally, the Peace Accord on
the Identity and Rights of Indigenous Peoples states that the
traditional norms of indigenous peoples have been and continue to be
an essential element for the social regulation of the life of their
communities and, consequently, for the maintenance of their cohesion;
it further recognizes that both the failure of national legislation to
take account of the customary norms that govern life in indigenous
communities and the lack of access by indigenous peoples to the
resources of the national judicial system have resulted in the denial
of rights, in discrimination, and in marginalization.
In its comments on paragraphs 44, 45, and 46 of the follow-up
report, the government of Guatemala explained that agencies of the
State had undertaken a series of actions to redefine how indigenous
customary law is applied and how indigenous authorities are
recognized, and to establish the right of consultation and
Within the Supreme Court of Justice, for example, attention has
been paid to the ethnic makeup and bilingual skills of staff members
in official positions–bailiffs, psychologists, judges–in the
departments with the highest levels of indigenous population. In the
departments of Alta and Baja Verapaz, 92 justice officials speak the Q’eqchí,
Achí, and Pocomchí languages; in the department of Chimaltenango, 72
speak K’akchikel and Kiche’; in Quiché 68 officials speak Kiche’,
Ixil, Q’eqchí, Sacapulteco, Uspanteco, and Jacalteco; in Guatemala
department 64 speak K’akchikel, Achí, Q’eqchí, and Mam; in
Huehuetenango 60 speak Mam, Canjobal, Popti, Jacalteco, Chuj, Acateco,
and Tectiteco; in Quetzaltenango 33 speak Kiche’, Kakchikel, and
Mam; in Sacatepéquez 8 speak K’akchikel and Kiche’; in San Marcos
10 speak Mam and Kiche’; in Sololá 67 speak Kiche’, Tzutujil, and
K’akchiquel; and in Totonicapán 13 speak Kiche’, Tzutujil, and
The State added that this strengthening of the bilingual staff
was in response to the comments made by MINUGUA, and that it will have
effects in the medium and long terms in tackling the acts of
discrimination that have historically characterized the administration
of justice in Guatemala.
Another of the Supreme Court’s actions has been to assign
official interpreters to courts of law, where they have the duty of
assisting Maya speakers and ensuring justice is done in their mother
tongues and in the official language. The government notes that
although this initiative–which stems from the Peace Accords–is
still not enough, it has led to the implementation of a new practice
that generates a change in the country’s legal structure and must be
seen as a process for the medium and long terms.
Official interpreters are located in the following regions: 10
in Alta and Baja Verapaz, 5 in Chimaltenango, 10 in Quiché, 2 in
Huehuetenango, 5 in Quetzaltenango, 1 in Sacatepéquez, 1 in San
Marcos, 3 in Sololá, 1 in Suchitepéquez, and 1 in Totonicapán.
The State of Guatemala’s comments on the follow-up report
note that the Supreme Court’s efforts to introduce legal pluralism
have also been accompanied by the creation of Community Courts,
in the municipalities of Santa María Chiquimula
(Totonicapán department), San Rafael Petzal (Huehuetenango), San
Andrés Semetabaj (Sololá), San Miguel Ixtahuacán (San Marcos), and
San Luis (Petén). In this last instance, the local community played a
direct role in appointing the judge by nominating a three-member
shortlist from which the community judge was selected. The State said
that these were experiences that could well be emulated in selecting
It added that a pilot program was underway in the departments
of Quetzaltenango and Sacatepéquez aimed at eradicating domestic
violence, and that most of the cases it dealt with involved indigenous
citizens. In spite of constant denials, the State of Guatemala
maintains that many indigenous areas often have high levels of
domestic violence. It explained that the Supreme Court of Justice has
introduced mediation and conciliation mechanisms to help resolve
conflicts and that these have minimized rural conflicts; it also said
that the launch of a specialized library on indigenous matters will
increase awareness of and help the enforcement of the indigenous
peoples’ own laws.
The State added that another important step forward in the
judicial field was the ongoing work of the Public Prosecution Service
(MP), with particular emphasis on the following actions:
The work of the Municipal Representatives, who resolve
conflicts on a timely basis in places where the MP has no officials
and where indigenous uses and customs are often observed.
The Labor Ministry’s Convention 169 Unit, which has been
working with the MP on guidelines for providing training about
Convention 169 and for enforcing it in various regions of the country,
particularly indigenous areas. The training effort has been aimed at
the MP’s prosecutors, so they can apply the principles of indigenous
law in accordance with the provisions of the international legal
The effort to establish a Prosecutor’s Office for Indigenous
During 2003, the Faculty of Legal and Social Sciences at San
Carlos University in Guatemala City introduced a course on indigenous
law; this will strengthen the institutional efforts by providing the
lawyers and notaries of tomorrow with direct training and thus
creating a new multilingual, multicultural, and multiethnic awareness,
as described in the Peace Accords.
Among the commitments acquired in the peace accords, the
government agreed to propose to Congress, with the participation of
indigenous organizations, the development of laws that would recognize
the right of the indigenous communities to manage their own internal
affairs in accordance with their customary norms, provided that the
latter are not incompatible with the fundamental rights protected by
the national legal system or with internationally recognized human
As regards the preceding paragraph, the State of Guatemala
claims to have met its commitment in that during 1999 the population
was offered, in a referendum, a series of proposed constitutional
amendments, one of which dealt with the indigenous legal system; these
amendments were rejected by the citizens who participated in the
As the Commission stated in its 2001 report, if enshrined in
the Constitution and put into practice, the commitments acquired under
the Peace Accords would offer an important educational, political, and
legal tool for fighting the discrimination against indigenous peoples
that exists in Guatemala. The Commission believes that the State of
Guatemala must continue to make serious efforts to legally recognize
the right of indigenous peoples to manage their internal affairs in
accordance with their customary rules.
The Commission notes that the efforts made in this area have
been sponsored, in general, by academic, nongovernmental, or
indigenous organizations, with some debate taking place about the
matter. However, the State has not pursued actions aimed at the
effective development of legislation to recognize indigenous law in
of the Judiciary
The Commission has received information indicating that the
approved budget for 2002 was down 11 percent compared with the 2001
budget and down 4.4 percent compared to 2000’s.
However, the Commission observes that in the budget adopted by
Congress for the year 2003, the judiciary has been allocated Q600
representing an increase of Q192,926,091 over the previous year’s
figure. Although the allocation is still not enough to fully cover the
operating costs of the judiciary and its expansion and modernization
plans, the Commission sees the increased budget for the justice sector
as a positive step, in spite of the general budgetary constraints.
In connection with the right of all inhabitants to prompt and
effective justice, the Commission recommended that the State:
1. Greatly intensify efforts to recruit and train members of the
National Civil Police, and particularly the Criminal Investigation
Service, to ensure that they have the manpower, qualifications, and
resources to carry out a criminal investigation in accordance with the
standard of due diligence.
Immediately put an end to military participation in any
activity of criminal investigation, consistent with domestic law and
its commitment to separate police and military functions under the
Agreement on the Strengthening of Civil Society.
3. Take the measures necessary to ensure the cooperation of all
public entities in the investigation of human rights violations,
including the legislative and other measures necessary to ensure the
right of free access to information contained in government files and
documents, particularly in the case of investigations to establish
responsibility for international crimes and grave human rights
4. Strengthen the procedures for collecting, analyzing, and
storing evidence in criminal cases.
5. Implement concrete measures to facilitate coordination between
all the institutions involved in responding to violations of the law
with due investigation, prosecution, and punishment, and, most
especially, to develop the necessary cooperation between the Public
Prosecutor and the National Civil Police in the area of criminal
6. Fortify the capacity of public prosecutors and defenders to
represent the interests of justice in the judicial process, including
through the implementation of enhanced recruitment initiatives;
training programs designed to correspond directly to the demands of
the job; incentives to retain trained, competent professionals; and
oversight efforts designed to identify and remove those unable or
unwilling to represent the interests of justice.
The Commission notes that a shortage of resources is the main
obstacle keeping the PNC Academy from teaching sufficient specialized
courses. MINUGUA reported that inadequate material resources and
institutional conditions had hindered the launch of specialized
courses in judicial proceedings and other areas.
In its comments the State reported that the 2003 budget
of the PNC totaled Q1,324,133,516, with an increase of Q238 million.
Regarding specialized criminal investigation courses, the State made
reference to a program that the International Criminal Investigative
Training Assistance Program (ICITAP) has been giving to officers of
the PNC, the Public Prosecution Service, and the judiciary, under an
agreement entered into by the US and Guatemalan governments.
The Commission notes that despite the recommendation that
military involvement in criminal investigations cease, the army
continues to participate in investigating crimes. Indeed, MINUGUA
reported that not only does the army continue to provide intelligence
support for tackling organized crime and common delinquency, the Armed
Forces Intelligence School continues to prepare and train PNC
regards the implementation of concrete measures for facilitating
cooperation among the agencies involved in investigating human rights
violations, the Commission has received information indicating that
Guatemala has not taken adequate steps to overcome the lack of
coordination among those agencies, particularly the PNC’s Criminal
Investigation Section and the Public Prosecution Service’s
Directorate of Criminal Investigations. In connection with this, the
State’s comments reported on an agreement of understanding signed by
the Attorney General and the Interior Minister, stipulating that the
MP’s prosecutors are to be responsible for leading criminal
investigations, using the means and resources available to them for
discharging the legal duties incumbent on them.
new attorney general, Carlos David de León Argueta, informed the
Commission about the reinstitution of the Crime Policy Committee, the
main goal of which is to consolidate cooperation among the different
bodies of the judicial sector in establishing joint crime policies,
programs, and projects. The Commission hopes that this
Interinstitutional forum will soon have a positive impact on criminal
Access to Government Information
In connection with access to data held in government files and
archives, the information available indicates that in October 2002
Congress approved, on its second reading, the draft Law on Information
Access presented by the Secretariat for Strategic Analysis (SAE). This
law will regulate matters including access to information on military
or diplomatic matters affecting national security, and it will set
procedures and levels of classification and declassification. However,
the Commission has received reports, some submitted through its case
system, that certain government agencies have failed to provide the
information and documents required by legal investigations into
serious human rights violations.
In its comments, the government of Guatemala stated that it did
not share the Commission’s view that the administrative authorities
did not collaborate in judicial investigations. The Guatemalan
Constitution clearly rules that all administrative actions are public
in nature, with the exception of those indicated by law. Since there
are no rules governing this, the administrative authorities’ actions
must be guided by the legal provisions currently in force. While the
Commission appreciates the State’s comment and understands that the
law supports it, it believes it should point out that in practice, in
the cases brought before it, it has seen some public authorities
refuse to accede to requests for information lodged by judicial
authorities and even by the ombudsman.
The Commission believes that congressional passage of the Law
on Information Access is essential, and it encourages the efforts made
in this regard by the SAE.
With respect to the strengthening of the office of the attorney
general, as the Commission has already said, the success of measures
to overcome impunity in human rights cases depends on the strength of
the mechanisms used to investigate them. The Commission applauds the
creation of the Special Human Rights Prosecutors Unit and the attorney
general’s efforts to secure the resources needed for a comprehensive
restructuring of the Public Prosecution Service; it further urges the
State to provide it with the funding needed to achieve that goal.
Regarding the right of all persons to access to a competent and
independent judiciary, the Commission offered the State the following
Adopt the legislative and other measures necessary to
complement the entry into force of the Law on the Judicial Career and
extend the five-year period of service for judges and magistrates to
one compatible with the security of judicial tenure, consistent with
the recommendation of nine years by the Commission on the
Strengthening of the Judiciary, and ten years by the UN Special
Rapporteur on the independence of judges and lawyers.
Devote special attention to the implementation of the Law on
the Judicial Career to ensure diligent oversight and discipline
consistent with the objective of professional excellence, and that the
designated procedures for due process in questions of transfer or
discipline are fully put into practice.
Regarding the recommendation that legislation be adopted to
extend judges’ tenure from five to ten years, the United Nations
special rapporteur on the independence of judges and lawyers reported
that the Supreme Court of Justice had attempted to introduce a
constitutional amendment to abolish the five-year period and to bring
their office into line with the principle whereby judges cannot be
removed from their posts, which is fundamental to the independence of
The Commission has no information about the results of that
With respect to the diligent oversight recommendation, the
Commission believes that the functioning of the Judicial Disciplinary
Board (JDJ) is of key importance. Charged with resolving complaints
lodged against judges and magistrates, as of March 26, 2001, it had
received 844 cases; of these, 481 had been dismissed, 71 visits had
been conducted, and a further 56 were being planned, according to
figures in the Special Rapporteur’s report.
Independence and Impartiality of the Judiciary
In relation to the independence and impartiality of the
judiciary, and to threats and intimidation made against people
pursuing justice, the Commission recommended that the State:
1. Take urgent action to devote the necessary human and material
resources and political will to providing measures of protection to
victims, family members, witnesses, prosecutors, public prosecutors
and defenders, judges and judicial personnel, and others threatened or
attacked in connection with judicial processes.
2. Establish an interinstitutional working group, including
representatives of the National Civil Police, the Offices of the
Public Prosecutor and Public Defender, the Judiciary, and any other
entity at special risk or with special responsibility in this area, to
facilitate cooperation in the design and implementation of the
appropriate measures of protection.
Adopt comprehensive measures to ensure a coordinated response
to and the prompt and effective investigation of all denunciations of
threats or attacks with a presumed link to judicial processes, in
order to identify, prosecute, and punish those responsible in
accordance with national law.
Ensure that State personnel assigned to deal with such threats
and attacks, particularly in the case of the National Civil Police and
Office of the Public Prosecutor, have the necessary qualifications and
expertise to respond with due diligence.
Adopt a code of legal ethics and promote compliance through
training, both within the judiciary and as part of legal education, as
well as through strengthened oversight and disciplinary measures.
6. Adopt practical measures to prevent opportunities for corrupt
practices, such as expanding the initiatives adopted in some courts to
reorganize working spaces of court functionaries to make them more
open and accessible, and to modernize file and docket control systems.
7. Implement specific mechanisms of supervision and oversight to
detect corruption, and to ensure prompt investigation, prosecution,
and the imposition of disciplinary or penal sanctions. The Commission
supports the recommendation of the UN Special Rapporteur on the
independence of judges and lawyers that an independent enforcement
agency with the power to investigate complaints of corruption in
public office, including the judiciary, and to submit matters for
prosecution be established.
Commission has received with extreme concern reports indicating that
threats, harassment, and other acts of intimidation are still
practiced against officers of the judicial branch. In particular, as
regards the first recommendation, the Commission has noted, most
especially through its precautionary measures mechanism, the State’s
efforts to protect individuals who have suffered threats and other
attacks on account of their involvement in judicial processes. The
Commission has been informed, however, that they are insufficient. For
judicial officials, the Supreme Court of Justice set up a Judicial
Security Office, which is charged with studying security problems and
drafting recommendations; however, the Court’s president reduced the
protection measures extended to judges on account of budgetary
Commission has no information regarding the second recommendation.
respect to the third recommendation–the investigation of threats
made against persons involved in judicial processes–on February 7,
2001, the Special Prosecutors Unit for Crimes against Justice
Officials was established. This unit was given 114 cases during 2001
and another 47 during the first six months of 2002. The Commission
applauds the work of the Public Prosecution Service in protecting
officials of the judiciary; however, it has received information
indicating that the Special Prosecutors Unit does not have sufficient
human and technical resources and that in most of the cases, the
investigations have yielded no results.
Regarding the fourth recommendation, the Commission has been
told that neither the PNC nor the Public Prosecution Service have the
resources for teaching specialized courses.
reference to the fifth recommendation, the Supreme Court of Justice
adopted a Code of Judicial Ethics in March 2001; however, the
Commission has no information about its enforcement or observance.
the implementation of measures to prevent, investigate, and punish
corruption, the Commission was informed about the recent restructuring
of the Public Prosecution Service’s Anticorruption Unit. The State
reported, in its comments document, about the creation of an
anticorruption commission that brought together all the agencies of
the judicial sector in order to implement a plan to prevent, fight,
and eradicate corruption; about the MP’s launch of a preventive
publicity campaign against corruption, drug trafficking, and other
high impact crimes; and about the establishment of the Commission for
Transparency, made up of distinguished figures from Guatemalan
and Denial of Justice
In relation to the situation of impunity and denial of justice
which characterizes, in particular, cases of human rights violations,
the Commission recommended that the State:
1. Implement the recommendation of the UN Special Rapporteur to
remove persons known to have committed human rights violations during
the armed conflict from public office and from the military, and to
ensure that they are not appointed to public office in the future.
2. Intensify efforts aimed at clarifying the human rights
violations of the past in order to prosecute and punish those
responsible in accordance with applicable law, and ensure that the
victims receive just compensation.
Regarding the dismissal of public employees and members of the
military for human rights violations committed during the armed
conflict, the Commission has received no information from either the
State or other sources to indicate that the government or the armed
forces have undertaken the elimination of such elements from their
structures. In its comments the State said that public officials and
employees can only be removed or dismissed when there is a judicially
proven accusation linking a public employee with the commission of a
crime. In spite of this, the State explained that in cases in which
the involvement of public employees in crimes had been reported, the
relevant administrative steps and corrective measures had been taken.
With respect to the prosecution and punishment of past
violators of human rights, the Commission notes with extreme concern
that the widespread impunity surrounding the violations committed
during the armed conflict remains unaltered. Both through its case
system and at its general hearings, the Commission has received
information indicating that to date, the judicial authorities have
refrained from prosecuting and punishing practically all the
perpetrators of human rights violations that took place during the
Although the Commission sees that major efforts have been made
in cases such as that of the anthropologist Myrna Mack, in which one
of the masterminds behind her killing was convicted by the
first-instance court, in other high-profile cases such as the Dos
Erres massacre, the criminal proceedings against the members of the
army have not progressed since the trial began in 1994.
to this case, the State’s comments disagree with the IACHR’s
position. Guatemala maintains that the criminal trial has progressed,
since the Public Prosecution Service has terminated the investigation
phase, and it explains that the proceeding has been halted by the more
than 50 amparo remedies filed by the defendants’ attorneys
who have, in this case, made use of the legal remedies offered by
Guatemalan law. In any event, the State of Guatemala has respected the
judicial guarantees set forth in law and the assumption of innocence
enshrined in the Constitution of the Republic.
In this connection, MINUGUA has stated that the right to
justice remains precarious in Guatemala, and that judicial processes
are constantly delayed by dilatory appeals.
The Commission understands that everyone has the right to recourse for
protection against acts that violate their human rights, as stipulated
by Article 25 of the American Convention. However, the Commission sees
the abuse of amparo remedies as a source for particular concern, and
it urges the judicial authorities to prevent such remedies from
becoming a legitimate mechanism for obstructing justice in cases of
serious human rights violations.
Once again, the Commission urges the State of Guatemala to
adopt the measures necessary to ensure that those responsible for the
human rights violations of the past are brought to justice and
Under Supreme Court of Justice Creation Agreement No. 1-98 of
January 15, 1998.
Judicial Branch, Budgetary and Financial Situation of the Judiciary,
Prensa Libre, “CSJ
inconforme con presupuesto del 2003: Q600 millones asignados por el
Congreso sólo servirán para pagar salarios” [Supreme Court
unhappy with 2003 budget: Q600m allocated by Congress will only
cover salary bill], November 20, 2002.
The National Civil Police: A New Police Model Under Construction,
2001, p. 32.
MINUGUA, Status of the commitments of the peace agreements relating
to the armed forces, 2002, paragraph 71.
Special Rapporteur on the independence of judges and lawyers, Report
on mission to Guatemala, paragraph 64, December 2001.
Ibid., paragraph 66.
MINUGUA, Thirteenth Report on Human Rights, paragraph 49, October