OEA/Ser.L/V/II.98
doc. 6 rev.
13 April 1998
Original: Spanish

GUATEMALA

 

 

          1.       The human rights situation in Guatemala has undergone a fundamental and significant transformation since the December 29, 1996 signing of the Agreement for a Firm and Lasting Peace between the Government and the Guatemalan National Revolutionary Unity (URNG) that concluded 36 years of internal armed conflict.  The termination of that conflict brought about an essential condition for advances in favor of the consolidation of peace and democracy, and protection for human rights.  The Commission recognizes, supports and encourages the positive initiatives that are being adopted and implemented.

 

          2.       The Commission understands that consolidating peace and developing a culture of respect for human rights are evolutionary processes, requiring the implementation and reinforcement of the corresponding practices and institutions.  In this regard, there is broad agreement that much remains to be done to reform or replace existing structures, and to develop additional safeguards for the protection of individual rights and freedoms.  In particular, public concern continues to mount with respect to criminal violence and the measures being taken to respond to rising crime rates.  These concerns are directly related to the central issues addressed in the Accord on Strengthening Civil Power and Defining the Role of the Military in a Democratic Society: reforming the police force and establishing a new equilibrium between civil society and the military.  The serious limitations on the ability of the police, Public Ministry and judiciary to administer justice efficiently and effectively, and the reported persistence of impunity for perpetrators of human rights violations remain fundamental problems.

 

          3.       It is in the light of the transformation taking place in Guatemala that the Commission presents the following observations under the criteria of reporting on countries in situations of transition.  Pursuant to the invitation issued by the Government of Guatemala, the Commission will visit that country in mid-1998 in order to carry out an on site observation of the situation of human rights in the country.  In December of 1997, the Government provided the Commission with information on the evolution of the situation of human rights in Guatemala during the year, to which the Commission has made reference in the present report.  The present report covers the period from early 1997 to early 1998, coinciding with the first year of implementation of the Peace Accords, and previews some of the issues the Commission will focus on during the course of its visit in Guatemala.  On March 6, 1998, pursuant to article 63 h of its Regulations, the Commission sent a copy of the report to the State of Guatemala, requesting that it provide whatever observations it deemed pertinent within the period of one month.  By a note dated April 6, 1998, the State of Guatemala presented its observations on the present report. ^[1]    This information was considered by the members of the Commission on April 7, 1998, when it approved the present report.

 

 

          I.        INTRODUCTION

 

          4.       The situation of human rights in Guatemala has changed in essential ways pursuant to the termination of the internal armed conflict.  The country is no longer subject to the practice by state agents of systematic disappearances, massacres and torture that the Commission reported on for many years during the conflict.  The violations of the past are now being investigated by the Commission for the Historical Clarification of the Truth (CEH), and a number of relevant cases are pending before the domestic courts.  The IACHR is continuing to receive and process denunciations concerning that period according to its procedures.  The Commission hopes that the parties to the peace agreements and the members of civil society able to do so provide the information the CEH requires to be able to comply with its mandate.  The parties to the Comprehensive Agreement on Human Rights committed themselves "[t]o take firm action against impunity."  Establishing the truth about past human rights violations is clearly an essential element in the fight against impunity.

 

          5.       The Commission notes with encouragement that the number of reported human rights violations diminished over the last year.  In its report on the first half of the year, the United Nations Verification Mission in Guatemala (MINUGUA) indicated that the number of denunciations received had declined substantially in comparison with prior reporting periods.  The Mission also indicated a decline in the number of violations attributable to state agents.  Over the last year, the Commission too has received significantly fewer petitions concerning Guatemala. 

 

          6.       With respect to the right to life, during the first six months of 1997, MINUGUA verified 19 extrajudicial executions, sixteen of which dated to the previous period.  The Mission was in the process of investigating nine cases of torture, one of which had already been verified, and eight cases of cruel, inhuman or degrading treatment, six of which had already been verified.  A high number of complaints of excessive use of force, 508, had been verified, the vast majority of which related to a June 5, 1997 police operation in San Pedro Saquetepequéz.  MINUGUA expressed concern generally with respect to the failure of the State to fulfill its obligation to investigate, prosecute and punish those responsible for unlawful acts: "the impunity phenomenon goes beyond the framework of the courts in scope and complexity and is becoming a factor influencing both individual and group behavior, thus undermining the rule of law to a degree proportionate to the absence of the state in the region concerned." ^[2]   The Commission will receive information on these issues during its on site visit.

 

          7.       The Commission values highly the impact of the peace agreements, and the opening and development of new political spaces in the country.  The Commission recognizes the importance of the opportunities for dialogue and engagement that have been established in the first and second stages of compliance, and encourages all the sectors involved in the various commissions and other activities in their efforts in favor of implementation of the accords.  

 

 

          II.       LEGAL AND INSTITUTIONAL GUARANTEES AFTER THE PEACE ACCORDS

 

          8.       The Peace Accords set forth commitments to reform various structures and practices through which power is exercised in Guatemala.  The human rights accord, which entered into force in March of 1994, provides for, inter alia, action to strengthen mechanisms of protection, a commitment against impunity, a pledge against the existence of illegal security forces and clandestine structures, an undertaking to regulate the carrying of arms, guarantees for freedom of association and movement, protection for persons who work in the field of human rights, and reparations and assistance to the victims of human rights violations.  The undertakings as a whole provide a framework for establishing the conditions necessary for the consolidation of peace and enhancing the observance of human rights.

 

          9.       Reports from various sectors reflect that important advances have been realized.  Pursuant to the signing of the Peace Accords, the demobilization of URNG combatants was completed between March 3 and May 3, 1997.  The Government began measures to reduce the size of its armed forces by 33%, a process it expected to complete by the end of 1997.  The Government has informed the Commission that, "in accordance with the Peace Accords, the National Defense General Staff completed the reduction of the Guatemalan Army as follows: `50,160 members minus 37.35% = 31,423.'  Further, MINUGUA indicates in relation to the dissolution of the Ambulatory Military Police that `this process concluded on December 15, 1997 with the demobilization of 1,370 members.'" ^[3]   On May 15, 1997, the Executive presented a set of proposals for constitutional reform to the Congress for its study.  According to the information provided to the Commission, the National Reconciliation Law adopted at the close of 1996 has, to date, been applied narrowly.  The Government has reported that the national courts have denied petitions seeking to "extinguish criminal responsibility for those responsible for the murder of north american citizen Michael Devine, the military agents accused of ordering the murder of Myrna Mack, and those accused in the case of Jorge Carpio.  ...[P]etitions seeking to extinguish criminal responsibility have only been granted to six members of the Guatemalan National Revolutionary Unity."

 

          10.     A multitude of commissions called for in specific accords have been established to begin formulating proposals and measures of implementation.  To date, these commissions have been a vehicle for broadening the participation of civil society in political processes.  The Commission looks forward to receiving information concerning the extent to which the recommendations and proposals of these commissions are taken into account. 

 

          11.     The restructuring of the police and military forces, and the reconfiguration of their mandates and roles are pivotal issues in the implementation of the accords.  The Civil/Military Accord referred to above commits to a separation of police and military functions, with the former responsible for internal security, and the latter responsible for the defense of national territory and sovereignty.  Reports indicate grave concern with respect to the role of the Estado Mayor Presidencial.  While the accord requires that the Estado Mayor Presidencial be replaced by an entity limited to guarding the president, it does not stipulate when that transition is to take place.

 

          12.     The role of the police has become a critical consideration in light of the escalation in violent crime affecting Guatemala.  According to governmental sources, there are a number of structural causes for the increased criminal activity, including the dearth of law enforcement and judicial authorities in extensive rural areas, the large number of firearms in circulation, the strengthening of organized crime due to a climate of impunity, and other institutional weaknesses.  The Commission has heard many complaints that the police are unable and/or unwilling to investigate crimes.  This has been attributed to a lack of training, a shortage of human and material resources, alleged corruption in the ranks, and other institutional deficiencies. 

 

          13.     The Government has initiated measures to identify and address deficiencies within the policing system.  The Civil/Military Accord calls for a substantial enlargement of the police force, with provisions concerning hiring, training, and an increase in material resources.  The transition to the new National Civilian Police has been initiated, pursuant to Congressional approval of Decree 11-97 on February 4, 1997.  A number of specific concerns have been identified with respect to this process, including reports of deficiencies in screening and training candidates; in particular, that the pressure to step up measures to counter crime has led to the recycling of members of the National Police and former members of the military into the new force without adequate "re-training."  The Government has indicated "that some irregularities in relation to the selection of personnel have been detected and corrected through dismissals and administrative and judicial sanctions."  The Commission will investigate these matters during its in loco visit.

 

          14.     Given the institutional weaknesses of the police, the urgent demands of violent crime, and heightened public concern, the authorities have deployed members of the armed forces in certain anti-crime capacities.  In April of 1997, military troops began patrolling the streets of Guatemala City, assisting the police in monitoring high-crime areas.  While the Commission recognizes the seriousness of the problem of criminality, as a general matter, it has expressed concern with respect to the use of the armed forces to fight crime, as this signifies deploying troops trained for combat in situations requiring personnel trained for civilian law enforcement.  In the present context in Guatemala, this raises specific concerns, given the priority need to establish clear and distinct roles for the police and the military, the need to redefine the relationship between the institutions, and the need to consolidate the subordination of the military to civilian authority.

 

          III.      THE SOCIOECONOMIC CONTEXT

 

          15.     Under the Accord on Socioeconomic Aspects and the Agrarian Situation, the State is committed to measures to address poverty and social inequality, including, inter alia, action to encourage economic growth, and to increase tax revenues from 8% of GDP (among the lowest rates in the hemisphere) to 12% by the year 2000.  The Accord calls for increased public expenditures on health, particularly with respect to primary education and illiteracy, and additional spending on education, including measures to reduce infant and maternal mortality.

 

          16.     The World Bank reports that the vast majority of the population is poor, with 58% living in extreme poverty. ^[4]   Statistics reported in 1997 indicate that the 20% of the population with the lowest income received a 2.1% share of income or consumption while the 20% with the highest income received a 63% share. ^[5]   Recent reports reflect some gains in certain indicators of development.  According to data collected between 1990 and 1995/96, 57% of the population had access to health services, up from 34% (reported on the basis of data from 1985-95).  64% of the population had access to safe water, up from 62%, and the population with access to measures of sanitation remained relatively stable at 59%. ^[6]   Child malnutrition remains a serious problem, with only modest gains in reducing the percentage of underweight children under 5 years of age in recent years. ^[7]   The infant mortality rate (to 1994) was 45 per 1000 live births, and the under-five mortality rate (to 1995) was 67 per 1000 live births. ^[8]

 

          17.     The Economic and Social Program of the Government sets forth a strategy to increase growth and reduce poverty.  Reports indicate that the economy grew by approximately 4% during 1997. ^[9]   The Government reported that steps have been taken with respect to tax policy, including the adoption of certain legislative reforms, and the initiation of a review of the principal taxes with a view to harmonizing legislation with what is established in the accords and with the national reality.  In terms of health, the Ministry of Public Health and Social Assistance initiated a new program of health supervision, and a plan to enhance integral health services.  Developments in terms of infrastructure included expanding and repairing six health centers and 4 health posts, and building ten centers and 14 posts.  The Government reported action taken in 1997 to increase access to education, including through the construction of 788 schools and the repairing of 35 others in six departments of the country.  Other measures included the establishment of mechanisms for communal participation in the appointment of teachers, and continued efforts to counter illiteracy.

 

          IV.      THE RIGHT TO JUDICIAL PROTECTION AND DUE PROCESS

 

          18.     Reports suggest that, with the signing of the final agreement and the opening of new political spaces, the deficiencies in the institutions and systems charged with the administration of justice have become more apparent.  Given the central role of the judiciary in safeguarding individual rights, and given the imperative that individuals have access to effective judicial guarantees, strengthening the judicial system is of paramount importance.

 

          19.     Systemic deficiencies currently affect the administration of justice at every level. ^[10]   The police are, according to reports received, widely perceived to be unable or, in many cases, unwilling to investigate crime and carry out arrest orders.  The Public Ministry is characterized as suffering from a lack of adequate trained personnel; unable or unwilling to investigate in the processes under its charge; and failing to take measures or of taking them only after prolonged delay.  Cases pending before the judiciary are entangled in interminable processing, individuals in many rural areas do not enjoy effective access to a judicial authority because of the inadequate number of courts, and members of the population who speak a Mayan language often do not have the assistance of interpreters during proceedings conducted in Spanish.  Those involved in judicial proceedings--witnesses, prosecutors and judges--may be subject to intimidation, or may be influenced by corruption within the system.  Reports indicate that the majority of criminal defendants require the services of a public defender.  Serious concerns have been expressed about the capacity of the public defenders' office to provide an adequate defense given that it is under-resourced and severely understaffed.

 

          20.     The State itself acknowledges the existence of problems related to delay in the judicial system, and has begun some initiatives to address this.  Draft legislation has been drawn up with respect to the judicial career and strengthening the Judicial Organ.  Further, the number of courts in the capital and interior are being progressively augmented, and the Supreme Court decided to raise the salaries of judges.  A number of training activities were carried out in 1997 within the Public Ministry, and MINUGUA has been working with the Government in order to strengthen the public defenders' service.  A judicial administration center was inaugurated in Nebaj, making available services of the Public Ministry, judiciary and police.  The creation of additional centers is reportedly under study.  The Commission has received information about other measures the State is pursuing, and will analyze the advances and remaining challenges during its in loco visit.

 

          V.      THE RIGHT TO LIFE AND PHYSICAL INTEGRITY

 

          21.     As noted above, the number of reported violations of the right to life, and to be free from torture declined in 1997.  In addition to the figures reported by MINUGUA, cited above, the Office of the Ombudsman for Human Rights reported receiving 66 complaints of possible extrajudicial executions during the first half of 1997, in contrast to 173 such complaints during the whole of 1996.  It is important to note that not all complaints necessarily lead to the opening of an investigation.

 

          22.     With respect to the phenomena of disappearances, MINUGUA admitted three cases during the first half of 1997.  In one case, the Mission established that no violation had occurred, and the other two were being verified.  With respect to the disappearance of Juan José Cabreras (“Mincho”), which took place in October of 1996, but came to light in early 1997, the Mission reported receiving evidence implicating a secret and unauthorized unit within the Estado Mayor Presidencial.  The Mission reported that the Public Ministry had not done all that was possible to investigate the matter, and had not received full cooperation from the Executive. ^[11]  

 

          23.     The Commission has received information about threats and attacks against indigenous and campesino leaders, unionists, students, and community and political leaders, as well as witnesses, lawyers and judges.  Reports indicate that a number of prosecutors and investigators working on cases have been subjected to threats and intimidation.  These alleged acts of intimidation and death threats give rise to serious concern.  The Commission is currently monitoring the application of precautionary measures in six instances of alleged intimidation and/or attacks.  Further, the Inter-American Court of Human Rights has maintained orders for provisional measures in two cases pending before the Commission, and ordered the adoption of measures in a third case in favor of individuals involved in a case under the Court's contentious jurisdiction.  At the same time, the Commission wishes to note that the Inter-American Court lifted the provisional measures it had ordered in the cases of Pastors Serech and Saquic, and Father Vogt in September and November, respectively.

 

          24.     The lack of confidence in the ability of the State to investigate and prosecute crime and protect the citizenry is manifesting itself in lynchings, mob attacks, and, in some cases, community vigilantism.  Media sources report lynchings and/or attempted lynchings on a regular basis, with an average of at least several a month.  Reports have described mob scenes of hundreds of people converging on a suspected delinquent.  Victims of these summary executions have been beaten, hanged, shot and burned. 

 

          25.     The Commission has received reports of the possible existence of activities of "social cleansing."  The Commission attributes the highest gravity to these themes, and will investigate these reports during its upcoming on site visit.

 

          The Death Penalty and Article 4 of the American Convention

 

          26.     The Commission continues to monitor the potential application of the death penalty with respect to crimes for which it was not provided as a penalty at the time Guatemala became a State Party to the American Convention.  Pursuant to legislative decrees 38-94, 14-95 and 81-96, that penalty had been extended to apply, not only with respect to kidnappings which resulted in the death of the victim (the law in effect at the time of ratification), but also to kidnapping which did not result in the victim's death. 

 

          27.     Article 4.2 of the American Convention provides that, in countries that have not abolished the death penalty, it shall not be extended to crimes to which it did not apply at the time of ratification.  The Commission referred in its last report to the noteworthy judgment of the Ninth Chamber of the Court of Appeals of January 30, 1997, commuting three death sentences to noncommutable sentences of 50 years on the basis of the requirements of domestic law including the State's obligations pursuant to Article 4 of the American Convention.  The Commission has received information that the Court of First Criminal Instance, Narcoactivity and Crimes against the Environment of the Department of Santa Rosa, Cuilapa issued a similar decision on May 8, 1997, in the case of Guillermo López Contreras, having determined that, under the terms of the applicable legal regime, the court could not legally impose the death penalty for a crime for which that punishment was not prescribed at the time of Convention ratification.  The Commission recognizes and values such decisions which properly respect and reflect the international human rights obligations which the State has undertaken.

 

          28.     Apart from the question of the expansion of the application of the death penalty, the Commission recalls that, on November 18 and 24, 1997, and February 9, 1998, it addressed the State of Guatemala in relation to the case of Manuel Martínez Coronado (Case 11.834) for the purpose of requesting precautionary measures to stay his pending execution.   The Commission had opened case 11.834 in October of 1997, and requested the measures so as to be able to examine the claims raised according to its procedures.  In a note of November 20, 1997, the State indicated that all domestic remedies had been invoked and exhausted, and that its judicial system did not contemplate the legal faculties  to adopt such measures to stay an execution at that stage of the process.  This position was subsequently reiterated by the State.  Manuel Martínez was executed by lethal injection (the first in Guatemala) at 6:00 a.m. on February 10, 1998.    

 

          29.     Requests for special measures are framed in terms of the competence of the IACHR to act on petitions, under Article 41.f of the Convention, and to request precautionary measures when necessary to avoid irreparable harm to persons, under Article 29 of its Regulations.  Such measures enable the Commission to maintain the efficacy of its Convention-mandated responsibility of examining and pronouncing upon individual cases.  It is, moreover, a general principle of international law that states are required to comply with their international obligations in good faith, and that internal law (including deficiencies therein) may not be invoked to evade such compliance.  Every member state of the inter-American human rights system is obliged to give effect to its norms; accordingly, the Commission finds the response of the State in this matter to be in breach of that duty.

 

          VI.      RIGHT TO LIBERTY AND HUMANE TREATMENT

 

          30.     While on the one hand the Commission continues to receive complaints that the police are unwilling or unable to effectuate arrest orders in some cases, on the other hand arbitrary arrests continue to be an issue.  While noting that this number represented a decline, MINUGUA admitted 27 complaints concerning the right to liberty during the first six months of 1997. 

 

          31.     The countries of Central America, with the exception of Costa Rica, share a high index of persons in preventive detention in relation to those who have been convicted.  Available figures indicate that as many as three quarters of those in detention in Guatemala have yet to be tried and sentenced.  This generally leads to overcrowding, tension, and other problems within the prison facilities.

 

          32.     The Government has reported that draft reforms are under study by the Congress to reform legislation concerning the penitentiary system.  These would include the creation of new detention centers including juridical, psychiatric, social work and medical offices.  There have also been proposals to rebuild the four existing penal farms. 

 

          33.     As is the case in many countries in the region, the prison system currently lacks sufficient human and material resources.  The Commission has received reports that some detention centers lack basic safety measures such as fire extinguishes, lighting, and instructions for moving detainees in case of emergency.  Among other things, reports indicate that many centers have structural deficiencies, are not properly maintained, and do not meet minimum health and hygiene standards.  The Commission looks forward to receiving specific information and updates on the progress of measures to improve the system.

 

          VII.     FREEDOM OF EXPRESSION

 

          34.     Within the context of the new political spaces which have emerged pursuant to the signing of the Final Accords, the Commission has noted with satisfaction a significant expansion in the freedom of expression.  In particular, the communications media reflect a wide range of views and opinions, including coverage of politics and criticism of official action and policies.  

 

          35.     However, daily papers including Prensa Libre, Siglo Veintiuno and el Periódico, the weekly Crónica, and various other media sources have responded sharply to what they term pressure or reprisals for publishing articles which are critical or unflattering to the Government.  The communications media complain that the Executive is using economic pressure as a form of reprisal, by having official entities and companies close to it withdraw advertising from those papers.  Coverage in recent months has included heated rhetoric from both the press and the Government. 

 

          36.     The Inter American Press Association (SIP) reported the April 1997 discovery of the body of journalist Pedro Pérez Rosales, who had worked for a radio station and disappeared after participating in a demonstration, and the fatal shooting of Jorge Luis Marroquín, editor of Sol Chortí and Deputy Secretary General of the PAN, in June of 1997. ^[12]   In November, Siglo Veintiuno sports reporter Víctor Manuel Medina went into exile in Canada after receiving death threats.  On December 10, journalist Israel Hernández Marroquín, editor at the weekly Inforpress Centroamericana and professor at San Carlos University, was shot and killed.  The precise circumstances of these crimes have yet to be clarified.  In its Seventh Report, MINUGUA indicated that it was investigating an incident of threats and aggression by two armed individuals against Oscar Granados Ara, President of the Unión de Cronistas Parlamentarios and founder of the Unidad de Prensa (which coordinates 13 press associations). ^[13]   The SIP report recalled that, on August 1, 1997, during the inauguration of the Association's hemispheric conference "Unpunished Crimes against Journalists," President Arzú promised to order an investigation of the murders of journalists in Guatemala.

 

 

          VIII.    THE SITUATION WITH RESPECT TO LABOR AND LAND RIGHTS

 

          37.     With the end of the internal armed conflict, many unresolved conflicts over land have come to the forefront.  A substantial number of occupations of land have taken place, related to labor and/or land disputes.  The accords provide for certain mechanisms to address conflicts over land.  In 1997, the State created the Land Fund and its executing unit, and the Presidential Dependency of Legal Assistance and Resolution of Land Conflicts (CONTIERRA).  The latter is to provide free legal assistance to campesinos and agricultural workers when requested, and to intervene in controversies to find just and equitable solutions.  The Government reported that CONTIERRA had intervened in some 120 matters.

 

          38.     The Commission has received reports concerning evictions that have included the use of force, and information suggesting that the resolution of land conflicts is not always handled through the appropriate legal means with full access to judicial guarantees for all parties.  The Commission will examine these reports and their implications for human rights during its visit to Guatemala.

 

          IX.      THE RIGHTS OF THE INDIGENOUS POPULATION

 

          39.     The Agreement on the Identity and Rights of Indigenous Peoples is based on the recognition of the multi-ethnic, multicultural and multilingual nature of the Guatemala nation, and commits to action to address de jure and de facto discrimination against the indigenous majority of the population.  The agreement calls for initiatives to combat discrimination, to reinforce the capacity of State institutions to protect the rights of this sector, and to strengthen indigenous institutions and instances of indigenous participation and decision-making.  It also calls for constitutional reforms to recognize: the identity of the Mayan, Garífuna and Xinca peoples within the unity of the nation; the multi-ethnic, multicultural and multilingual character of the State; and indigenous languages and spirituality. 

 

          40.     The Government reports that legislative reforms are currently under study by the Congress, and that three of the commissions called for in the accord have been established with participation by members of the relevant indigenous sectors and the Government.  Some steps have been taken to improve access to education in primarily indigenous zones.  However, reports continue to reflect that a large percentage of indigenous children still do not have access to an adequate primary and secondary education.  The indices of access between indigenous and nonindigenous children continue to show marked disparities, as do the indices of literacy, child malnutrition and infant mortality.

 

          41.     In its report on Guatemala of April of 1997, the UN Committee on the Elimination of Racial Discrimination expressed concern that racial discrimination and incitement to such discrimination are still not prohibited within the legislation of Guatemala. ^[14]   It also expressed concern that, notwithstanding governmental efforts,

 

          the problem of the allocation of land and/or compensation continues, especially with respect to the return of lands to the indigenous peoples after the end of the armed conflict.  Of special concern are confrontations arising over the ownership of property, in the course of which indigenous peoples have been detained and threatened. ^[15]

 

The Committee also drew attention to the fact that members of the indigenous population remain underrepresented in the public service and public life of the nation, particularly in the judiciary and within the administration of justice. ^[16]  

 

          42.     With respect to the administration of justice, the unavailability of adequate interpretation between Mayan languages and Spanish in the judicial system has been cited as a serious continuing problem.  Given that judicial processes are conducted almost exclusively in Spanish (although exceptions are beginning to emerge), the insufficient availability and/or training of interpreters places defendants who don't speak Spanish, or for whom it may be a second language, at risk.  It also means witnesses may not be able to adequately present their testimony, and that complainants may not be adequately heard before the court.  While some steps are being taken to address this deficiency, it continues to place the rights of many  indigenous inhabitants at risk, and constitutes a serious obstacle to the proper functioning of the administration of justice for all.

 

          X. THE RIGHTS OF WOMEN

 

          43.     The process of implementing the Peace Accords includes a number of initiatives in favor of advancing the rights of women and their role in national life.  In November of 1997, the National Women's Forum was established.  The delegates are working on four principal areas: project development; social development with an emphasis on education and health; political/civic participation; and legislative reforms. Among other things, the accords call for the Government to promote legislation defining sexual harassment as a crime, and for electoral law reforms.  The Commission has taken due note of the number of areas where gender perspective has been incorporated in Government programs and policies, including initiatives to promote the participation of women in the police and armed forces, and encourages the further development of such efforts.

 

          44.     Advances in representation are being pursued and realized; however, women remain severely underrepresented in public life.  According to Government reports, of the 494 judges indicated according to different categories, 93 are women.  According to the "Synthesis of the Situation of Guatemalan Women" prepared by the Secretariat of Social Work of the Wife of the President, 3 of the 28 Ministers, Viceministers and Secretaries of State of the Cabinet are women; 3 of the 330 municipal mayors are women; and 13 of the 80 members of the Legislature are women.  It may be noted that the Congress is currently presided over by a woman.

 

          45.     The Commission has received reports that the legislature is currently studying a draft law on the integral promotion of women.  Early indications suggest this is a positive initiative, and the Commission looks forward to receiving additional information.  At the same time, other initiatives have not advanced.  The Government itself has noted that the Civil Code of Guatemala sets forth certain distinctions between the rights and responsibilities of women and men.  While the legislature has studied several proposals to reform such provisions, concrete action has yet to be taken. 

 

          XI.      THE RIGHTS OF CHILDREN

 

          46.     The new Code of Childhood and Youth, adopted in 1996 to bring national legislation into harmony with the UN Convention on the Rights of the Child, has yet to enter into force, Congress having approved a six month suspension of its initiation in October of 1997.  The Code is now scheduled to enter into force on March 27, 1998.  The Commission values legislative advances to better protect children, and to effectuate the obligation of states parties to the Convention on the Rights of the Child, such as Guatemala, to ensure that the best interests of the child serve as the guiding principle in taking decisions that affect them.  Accordingly, the Commission looks forward to the entry into force of these measures intended to provide integral protection for children, and encourages their prompt and full implementation.

 

          47.     New code provisions include the right for children to have state appointed defense counsel and to be heard in legal proceedings, and prohibits holding minors placed in protective custody in juvenile detention facilities.  Concerns have been expressed with respect to the current lack of state counsel for juveniles in the criminal justice system, insufficient separation of the very young from older juveniles in detention, and a lack of State oversight with respect to conditions of juvenile detention.  Reports indicate that children who have not committed criminal offenses, i.e. runaways, abandoned and homeless children, may be dealt with by incarceration in the juvenile justice system. ^[17]

 

          48.     The Commission has paid special attention to the situation of street children in Guatemala, and is aware of the extraordinary hardships faced by the many children orphaned during the armed conflict, and the high percentage of minors required to work at an early age to survive.  In a recent report, the nongovernmental organization Casa Alianza reported on six particular cases from 1997. ^[18]   Two involved severe beatings meted out by private security police, one involved an alleged arbitrary and illegal detention and beating by a police officer, and the others involved murder, and in some cases torture, by unidentified individuals.  With respect to each case, Casa Alianza reported that the authorities had failed to carry out a prompt and thorough investigation in order to identify and prosecute those responsible.

 

          49.     The interinstitutional Permanent Commission for Attention to Children and Youth coordinated by COPREDEH incorporates the participation of the police, Attorney General's Office, the judiciary's Coordinating Magistracy of Minors, the Secretariat of Social Welfare of the Presidency, and the nongovernmental organization Casa Alianza.  It addresses issues concerning the rights of street children, particularly the rights to life and personal integrity, and follows up on cases of violations against such children.  The Government reported that in 1997, that Commission had attended to a total of 117 cases. 

 

          XII.     THE SITUATION OF THOSE UPROOTED BY THE INTERNAL CONFLICT

 

          50.     The Agreement for the Resettlement of Uprooted Populations provides a framework for the return and integration of, inter alia, refugees, returnees, internally displaced persons, and popular resistance groups to their places of origin or other locations of their choice in Guatemala.  According to the Government, during 1997, "3,603 refugees returned to Guatemalan territory, making a total of 36,559 returnees from 1986 to 1997."  The Government reported that it was in the process of negotiations with 19 blocks of refugees, representing approximately 2,600 families, with the expectation of their return before mid-1998.  An accord was signed between CEAR, FONAPAZ and SEPAZ and representatives of returnee groups to arrange terms for the final phase of return for those still in Mexico.  According to the Government, approximately 29,000 persons remain in refugee camps in Mexico (of whom approximately 15,000 were born in Mexico).  The principal objective of that agreement was to finalize the integration of blocks of refugees in order to proceed to negotiations for the purchase of farms that will permit their return. 

 

          CONCLUDING OBSERVATIONS

 

          51.     In view of the Commission's impending on site visit to Guatemala, the present report is limited to preliminary observations on the advances realized and challenges which remain.  The reports of various sectors coincide in reflecting basic compliance with the terms of the Peace Accords during phases one and two.  The promotion and protection of human rights has been a theme of fundamental importance in both the negotiation and implementation of the accords, and the present situation in Guatemala underlines the importance of continuing to move forward with implementation in full compliance with the letter and spirit of those accords. 

 

          52.     It is in this sense that recent reports raise some important questions regarding the prioritization of concrete action to effectuate reforms in favor of the observance of human rights.  The Commission looks forward to receiving additional information during its visit on initiatives to assure the continued funding of the process to implement the accords, to secure the prompt reform of pertinent legislation, and to strengthen the administration of justice and enhance access to effective judicial protection.  The Commission considers it essential that approaches to the public security crisis be developed which are sustainable, and meet the right and duty of the State to provide protection to the population while respecting and consolidating the distinct roles of the security forces and their subordination to civilian control, in a manner consistent with the letter and spirit of the accords.  Finally, the Commission thanks the Government of President Arzú for the information provided which will assist it in its functions, and reiterates its appreciation for the invitation to carry out an in loco visit during this year.