United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1995 - Guatemala, 30 January 1996, available at: http://www.refworld.org/docid/3ae6aa807.html [accessed 19 June 2013]
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GUATEMALA Guatemala's 1985 Constitution provides for election by universal suffrage of a one-term President and a unicameral Congress. It also mandates an independent judiciary and a Human Rights Ombudsman (PDH), who is elected by and reports to the Congress. On June 5, 1993, Congress elected then Human Rights Ombudsman Ramiro de Leon Carpio to finish the presidential term of Jorge Serrano, who had been constitutionally deposed from office following his attempt to suspend the legislature and judiciary. President de Leon's term of office ended in January 1996. On November 12, the first round of general elections for president, vice president, congress, and municipal offices resulted in no presidential candidate receiving an absolute majority. Alvaro Arzu Irigoyen of the National Advancement Party (PAN) won the runoff election held January 7, 1996, and took office January 14. Reflecting a greater opening for political activity, 24 parties, including a broad front coalition composed of civil sector, human rights, and labor leaders, campaigned in the free and fair elections. Peace talks between the Government and the leftist insurgent Guatemalan National Revolutionary Unity (URNG) continued. The parties achieved significant progress but fell short of their goal of an overall agreement by the end of the year. The Government and the URNG insurgents reached an accord on indigenous rights on March 25. Although the overall indigenous agreement will be implemented only when a global peace accord has been signed, its human rights provisions took effect immediately. A 1994 Government-URNG accord led to the introduction of the U.N. Human Rights Verification Mission (MINUGUA) into Guatemala. MINUGUA's extensive international presence, its verification of alleged abuses, its detailed periodic reporting, and its programs to strengthen civilian institutions serve as deterrents to human rights abuses and encourage greater human rights activism by civil society. The army and police forces operate with considerable institutional and legal autonomy, particularly in security and military matters. With President De Leon's mid-1994 suspension of enforcement of the Conscription Law, forced recruitment and recruitment of minors all but ceased. Officially, the army has 43,000 men, although outside sources commonly place the current numerical strength of the army at substantially less. The Minister of Government oversees the National Police and the Treasury Police, which share responsibility for internal security with the army. President De Leon replaced the Minister of Government and Director of National Police and placed a civilian in the position of Vice Minister of Government, which previously had been occupied by an army colonel, once again reducing direct military control over the police force. An estimated 340,000 men serve in rural civil self-defense committees called Civil Defense Patrols (PAC's), some of which conduct counterinsurgency patrols. Although the Constitution requires that service be voluntary, MINUGUA, the Human Rights Ombudsman's Office (PDH), and the Catholic Archbishop's Human Rights Office (ODHAG) reported that in some regions certain PAC's were still compelling members to join or remain in the patrols, in violation of the Constitution, and that some PAC's killed members who chose to leave their PAC's. In a major and controversial decision, President De Leon decommissioned 33,000 military commissioners effective September 15. These were generally local civilian leaders who represented the army and served as intermediaries between the army and the civil defense patrol members. Security forces, especially PAC's and civilian military commissioners, committed numerous serious human rights violations and generally enjoyed impunity from the law. The agricultural-based, private sector-oriented economy grew by approximately 4.9 percent in real terms in 1995, raising per capita income about 1 percent. Coffee, sugar, and bananas are the leading exports, with more than half of the work force engaged in agricultural labor. Inflation was 8.6 percent. There is a marked disparity in income distribution, and poverty is pervasive, particularly in the large indigenous community. Approximately 80 percent of Guatemalans live in poverty, with 59 percent in extreme poverty. Gross national product (GNP) per capita is approximately $1,000 per year. Guerrillas, as well as leftwing and rightwing extremist groups, committed major human rights violations. Guerrilla abuses included death threats, the use of mines and explosives in civilian areas, attacks on military bases located near civilian areas, forced recruitment of minors, and reprisal attacks against the property of persons who refused to pay "war taxes." PAC's, military commissioners, members of the army, and police committed major human rights violations, including extrajudicial killings, political kidnapings, physical abuse, arbitrary arrest and detention, death threats, and forced recruitment. MINUGUA noted some positive developments, including minor improvements in the administration of justice, a more aggressive Police Department Office of Professional Responsibility, the successful suspension of military conscription, the virtual end of forced recruitment, and the decommissioning of military commissioners. Nonetheless, government policy changes and a more aggressive stance by the Minister of Government and the Director of National Police have been insufficient to combat the impunity commonly enjoyed by government security forces. The judicial system is often unable to ensure fair trials. Both legal and societal discrimination against women persisted, and violence against women is a problem. Societal abuse of children and discrimination against indigenous people continue.
Respect for Human Rights
Section 1 Respect for the Integrity of the Person, Including Freedom from:
a. Political and Other Extrajudicial Killing
Politically motivated killings continued with disturbing frequency. Because of the scarcity of law enforcement resources and a weak and ineffective administrative and judicial system, as well as widespread impunity and a lack of political will, the Government, with few exceptions, failed to investigate killings fully or to detain and prosecute perpetrators. The security forces (military, PAC's, military commissioners, and the police) and rightwing extremist groups were responsible for political and extrajudicial killings, but with a reduced incidence compared to 1994. The PDH's office, which generally compiles data based on personal interviews with victims and their families, listed 216 cases of possible extrajudicial killings in 1995, compared with 287 in 1994. Using media reports and interviews with victims and their relatives, the ODHAG reported 215 extrajudicial killings for the year, compared with 355 in 1994 and 248 in 1993. ODHAG labeled 18 of the extrajudicial killings in 1995 as definitely political and 133 as presumed political. For its part, MINUGUA listed 103 extrajudicial killings for the period between February 21 and August 21. None of these human rights offices broke down the figures according to the organization believed responsible, but government security forces, military commissioners, and PAC members committed such offenses. President De Leon replaced the Minister of Government and Director of National Police and appointed a civilian to the position of Vice Minister of Government, which previously had been occupied by an army colonel, reducing direct military control over the police force. These changes occurred amidst allegations of corruption involving the Minister and charges of excessive use of force by the police, particularly surrounding the deaths and injuries in the August 1994 "La Exacta" farm occupation labor protest incident and the November 1994 University of San Carlos (USAC) student demonstration (see below). PAC members and military commissioners, who often represent the only day-to-day central government authority in outlying areas, are feared in many rural communities. They usually enjoy army backing and de facto immunity from prosecution. ODHAG and CERJ, an indigenous human rights organization, reported that the executive branch failed to carry out arrest warrants against at least 30 military commissioners and PAC members for their involvement in human rights crimes. PAC members and military commissioners are rarely convicted for their crimes. No military commissioner or PAC member accused of committing a human rights related offense has been sentenced, although at least 14 (3 commissioners and 11 PAC members) were detained and under judicial proceedings at year's end. In a major, controversial decision, President De Leon decommissioned military commissioners effective September 15. The 33,000 military commissioners were generally local civilian leaders who represented the army and served as intermediaries between the army and the civil defense patrol members. Military commissioners served as the eyes and ears of the army in remote areas and played a central role in forced recruitment prior to the virtual abolition of that practice. Opinions vary as to whether the formal abolition of these positions and decommission of the commissioners, although important steps, will make a major difference in practice. The National Police attempted to carry out arrest warrants for PAC members charged in the 1993 killing of anti-PAC activist Tomas Lares Cipriano, but 30 armed PAC members forced the policemen to withdraw. The Government failed to carry out arrests on warrants issued against three other PAC members on four occasions between July 1993 and February 1995. Nine members of the Colotenango PAC surrendered on charges of responsibility for the August 1993 killing of Juan Chanay Pablo, an anti-PAC demonstrator, and were imprisoned. Members of this group had allegedly been informed by the military that they would be released on personal bond upon surrender to the authorities. Of 13 accused in the killing, 8 are in jail, 4 remain at large, and 1 has died of natural causes. The National Police acted to protect witnesses and staged a reconstruction of the events in July. An active investigation was still underway at year's end. On January 8, USAC lecturer Abner Esau Avenado Estrada was assassinated by unknown individuals in Guatemala City. Avenado had reported receiving threats for more than 2 years prior to his death. MINUGUA concluded that the National Police were lax in pursuing an investigation of the incident. On January 27, another USAC professor, Apolo A. Carranza Vallar, disappeared after leaving his office at the Pan-American Health Organization. In May Erwin Gonzalez Barrientos, a self-proclaimed military informant, correctly identified the location of Carranza's body and charged that the Escuintla military zone commander was the intellectual author of the kidnaping and murder. In spite of Gonzalez' claims, the Santa Lucia Cotzumalguapa police chief is currently under arrest for the murder of Carranza. The Conference of Evangelical Churches of Guatemala, CIEDEG, charged the Public Ministry and the National Police with a careless investigation of the murder and mistreatment of several of its members and alleged that the Chimaltenango police actively tried to impede it. On June 23, unidentified assailants brutally tortured and murdered Pastor Manuel Saquic Vasquez, coordinator of human rights for the Kachiquel Presbytery and member of the human rights group Defensoria Maya. Local authorities interred Saquic's body on June 26 in an unidentified grave. Another member of the presbytery, Bartolo Solis Sunin, was kidnaped, interrogated, beaten, and released. Pastor Saquic had been a witness to the Solis abduction. In August 1994, Pascual Serech, also a member of the presbytery, was found dead. CIEDEG suspects that military commissioner Victor Roman Cutzal is the intellectual or material author of all three incidents. After the murder of the first judge handling the Pascual Serech case, an itinerant judge from the capital closed the case in favor of Roman. The case against him was reopened upon appeal to a higher court. In August a judge issued a warrant for the arrest of Roman, but he remains at large. CIEDEG members have received verbal and written threats, including an ultimatum for departure from the country. ODHAG and MINUGUA have accused members of the army and the National Police of directing an extrajudicial social cleansing campaign in which they or their agents kill minors and adults believed to have committed common crimes. ODHAG reports that street gangs, allegedly using police weapons, kidnaped, tortured, and fired fatal shots into the heads of three street children from a rival gang. The Police Department's Office of Professional Responsibility is reportedly conducting an investigation into these charges. On July 15, in the town of Amatitlan, two presidential guard personnel killed Conrodo Ramirez Garcia and wounded Candida Aquino Yansi and her son, Feliciano Ramirez Yansi, according to the Ombudsman's office. Military courts responded rapidly to the allegations, permitting the case against the accused to advance expeditiously. An army patrol led by Lieutenant Camilo Antonio Lacan Chaclan killed 11 people and wounded at least 30 on October 5. The patrol entered the returned refugee community of Aurora 8 de Octubre at the Xaman Ranch, Chisec, Alta Verapaz, for reasons which have not yet been clearly established. After a tense standoff during which the patrol was surrounded by an emotional crowd, the soldiers opened fire and withdrew from the village. Soldiers shot an 8-year-old boy in cold blood some distance from the scene of the original shootings. President De Leon accepted the resignation of Defense Minister General Mario Enriquez shortly after the shooting incident. Lieutenant Lacan Chaclan and 25 soldiers have been indicted and remained in jail awaiting trial at the end of the year. On December 5, an unknown gunman killed 9-year-old Magdalena Caal Coc and wounded 11-year-old Santiago Quix Caal in a temporary refugee settlement in Cantabal, Alta Verapaz. At year's end, active government and U.N. investigations were still underway, but the motive and perpetrators remain unknown. Captain Hugo Contreras, the Guatemalan army officer sentenced to 20 years in prison after being convicted of ordering the operation that led to the June 1990 murder of Michael Devine, remains a fugitive following his May 11, 1993 escape from military custody. It is widely believed that some military officials facilitated Contreras' escape. The six enlisted men, each sentenced to 30 years for the murder of Devine, lost their appeal in the Supreme Court in May. Public allegations in March that army Colonel Julio Alpirez was involved in the Devine killing led Francisco Solbal Sontay--who was convicted in the killing--to declare that Alpirez and Colonel Mario Garcia Catalan were involved in the murder and the subsequent coverup. Solbal alleged publicly that Garcia Catalan ordered the Devine murder, and also had other participants in the killing murdered as part of the coverup. Solbal was unable to identify for investigators the exact location of the graves of the victims to carry out exhumations. Based on these allegations, the Public Ministry launched a new investigation to try to determine the intellectual authors of the murder and participants in the ensuing coverup, assigning Leopoldo Mejia Toc as the special prosecutor. The Fourth Court of Appeals dismissed charges against Garcia Catalan in August and denied an appeal by the Public Ministry that the investigation of his role in the murder continue. There was some progress in certain past high-profile cases. An appellate court ruled in April that, due to serious irregularities in the case against the six imprisoned defendants charged with the 1993 murder of former presidential candidate Jorge Carpio, proceedings had to begin anew. The Inter-American Commission on Human Rights (IACHR) issued a resolution calling on the Government to take immediate protective measures to safeguard the survivors of the incident, family members of the victims, and the prosecutor assigned to the case. Six persons convicted in the killing of constitutional court president Epaminondas Gonzalez Dubon were sentenced to terms ranging from 2 to 12 years on December 21. The Public Ministry is appealing the sentences as being too light. Although the Public Ministry ruled out any motive other than robbery, widespread speculation continues that Gonzalez was killed because he had decided to uphold the constitutionality of an extradition order to the United States for former Lieutenant Colonel Carlos Ochoa Ruiz on drug-related charges. A videotape filmed at the November 1994 USAC student demonstration showed policemen severely beating student Mario Lopez Sanchez after he was injured and incapacitated. Lopez later died from his injuries. Judicial proceedings against the police came to a halt in February after trial courts requested further investigation of the accused police officer. Another court denied a wrongful death lawsuit for 10 million quetzals (approximately $1,810,000) filed by the Lopez family against the Government. The court ruled that the State cannot be held liable for damages and injuries that occur in armed confrontations or civil disturbances. The Lopez family has appealed this ruling. Also in February, the former Minister and Vice Minister of Government and the National Police chief were charged with issuing the general order to fire at the students in the November 1994 demonstrations. They were permitted to post a bond of 15,000 quetzales (approximately $2,630) pending further investigation. On September 13, Carlos Venancio Escobar, Vice Commander of the Fifth Police Corps, was imprisoned in connection with the case. MINUGUA reports that since Lopez' death there have been incidents of torture, kidnaping, and intimidation directed against several persons involved in the case. In August 1994, the National Police killed three persons while attempting to arrest workers who had occupied the La Exacta farm during a labor dispute. Since then the Ministry of Government has modified its procedures and has promoted improved discipline and greater restraint in the use of force (e.g., firearms are no longer used) in property eviction tactics employed by the authorities. MINUGUA reports, however, that Public Ministry officials have neglected to carry out some of the basic investigative inquiries into the incident. In October the authorities arrested the departmental police chief and charged him with homicide and abuse of authority in connection with the La Exacta killings. The trial against the alleged intellectual authors of the 1990 killing of anthropologist Myrna Mack has been paralyzed for several months in the pretrial investigative stage. The alleged intellectual authors have insisted that the convicted material author, Noel de Jesus Beteta, is innocent and that they cannot be charged as a result. In July a court ruled that Mack's sister, Helen, could serve as an additional plaintiff in the case. There has been no progress in the related case of detective Jose Luis Merida Escobar who was assassinated in 1991 while he was investigating the death of Myrna Mack. There were some limited developments in the 1985 Blake/Davis case. In February the Inter-American Court of Human Rights in San Jose agreed to accept the case for review. The Government asked PAC members accused of the death to come in for questioning but they have not appeared. A key informant in the case reports that he has suffered threats and intimidation. In January the Supreme Court overturned sentences and ordered a new trial for members of a police and army anticrime task force convicted of the April 1992 death of university student Julio Roberto Cu Qium and the injury of six other students. The 21 policemen charged originally received 30-year sentences, and the 9 soldiers involved received 14-year prison terms. Prior to the Supreme Court ruling, the Constitutional Court had dismissed two appeals filed by the defendants. The IACHR requested in April that the Inter-American Court of Human Rights take legal action against the Government for having closed legal proceedings in the 1988 "white van case" without resolving the indemnification issue raised by relatives of those kidnaped, tortured, and murdered by Treasury Police riding in a white van. The Government's investigation into the September 1994 murder of a leading witness and survivor of the case and his son is still underway. In June the Solicitor General stated that legal proceedings against several policemen remained pending. ODHAG reported that the Juarez family fled Guatemala because of repeated acts of intimidation and death threats by Coban army intelligence Captain Jose Luis Gonzalez Perez. The family accused Gonzalez of commanding a Coban-based "social cleansing" execution squad responsible for the 1994 death of their son, Juan Rene Juarez Gonzalez. ODHAG and the international community made repeated requests to the Defense Ministry to remove Captain Gonzalez from his position and launch an appropriate investigation into these charges. On June 30, Captain Gonzalez was transferred as part of the army's normal rotation. There was no progress in resolving numerous other past extrajudicial killings, including the 1989 disappearances and murders of university students, the 1990 Hector Oqueli Colindres and Gilda Flores killings, the 1990 disappearance of Maria Tiu Tojin and her daughter, the 1991 disappearance of Diego Domingo Martin, the 1992 kidnaping, torture, and murder of Huehuetenango peasant Lucas Perez Tadeo, the 1993 shooting of street children Henry Yubani Alvarez and Francisco Tziac, the 1993 shooting of student protester Abner Abdiel Hernandez Orellana, or past kidnapings and murders of various members of CERJ. The Government's inability to deter, prosecute, or punish those responsible for such offenses remains a major impediment to human rights progress. There was no progress in the investigation of two fatal 1994 police beatings. In the first case, police officers severely beat Victor Manuel and Mario Enrique Pineda Poron, killing Mario Enrique. The police also severely beat Juan Carlos Ruiz Ramirez and Marco Vinicio Rodriguez. Ruiz Ramirez subsequently died from his injuries.
ODHAG reported 10 forced disappearances in 1995, all believed to be politically motivated. The PDH's office received 77 complaints of forced disappearance, compared with 60 for 1994. The Government did not identify or prosecute the perpetrators of any of these disappearances. While motives in these incidents are difficult to determine, many of the victims were politically active. MINUGUA reported that, on March 17, Salvador de La Rosa Juarez left his home near Las Tronchos, Escuintla to perform patrol duties with a local military unit and later disappeared. Another patroller, later found murdered, warned the victim's wife to drop her investigation and told her that her husband was dead. Several days later, four young men, including two nephews of de La Rosa, were found dead. MINUGUA charged that the local police force conducted no investigation into this incident. The military has asserted that these matters do not fall within MINUGUA's jurisdiction and has refused to cooperate, in part because of alleged military ties to these incidents. On March 23, Arnoldo Xi, a community leader in Tixila, Purulha, Baja Verapaz and a member of CONIC (an indigenous human rights organization dedicated to saving Mayan culture) was reportedly wounded by gunfire and then abducted by armed men. He remained missing at year's end. The whereabouts of Lorenzo Quiej Pu, a member of CONDEG (an organization dedicated to helping Guatemalans who have been internally displaced due to the armed conflict), who disappeared in January 1994, remained unknown at year's end. Likewise, the disappearances of San Marcos PAC members Margarito Lopez and Obdulio Zapeta, army enlisted man Diego Chel Matom, and farmers Ramona Munoz and Maritza Gil, who were allegedly kidnaped in 1993 by guerrillas, remained unresolved at year's end.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides for the integrity and security of the person. Nonetheless, many bodies were found in various parts of the country bearing signs of severe disfigurement or mutilation. The PDH's office listed 9 potential cases of torture, compared with 18 in 1994. For the same period, ODHAG listed 5 cases of torture, compared with 17 cases in 1994 and 18 cases in 1993. Some of these cases were believed to be politically motivated. There were credible reports of mistreatment by members of the security forces, including sexual abuse of minors and adults, and use of excessive force by police at the time of arrest. Additional reports indicated that, especially in rural areas, the army, civil defense patrols, military commissioners, and police all at times used excessive force against the civilian population. MINUGUA reported that on January 2, USAC student Jorge Ottoniel de Leon Ramirez was abducted and interrogated violently about the activities of the Association of University Students and his alleged ties to slain student Mario Alioto Lopez Sanchez and the URNG. Another student was also abducted and seriously injured. Government security forces are believed to be involved in both incidents. On July 26, a different student was briefly detained by armed men, shown a list with the names of 17 USAC students and alumni, and told that those named on the list would be killed. A number of the students on the list have reportedly stopped attending classes at the university and fled the capital. The PDH's office reported that on the evening of January 6, in Salama, Baja Verapaz, two Treasury Policemen illegally detained military commissioner Lauro de Jesus Gonzalez Ortiz. According to the PDH, the two police officers seized Gonzalez because they thought him responsible for an earlier shooting at a Treasury Police office. The officers involved allegedly used nightsticks and an electrical shock device to apprehend Gonzalez, rendering him unconscious and breaking his leg. The PDH has called for disciplinary action against these officers for their extralegal behavior and possession of the electrical device. The PDH has also demanded the enforcement of disciplinary action against the officers' supervisors for allowing such behavior and omitting facts in their investigation. No action has been taken in response to the demands of the PDH. Casa Alianza (CA), an organization dedicated to assisting street children, reported various instances in which the National Police abused street children. CA also reported that criminal charges against the five policemen charged in the March 1994 baton beating of Luis Antonio Roldan Izeppi remain pending because two policemen have not testified. One policeman has left the force. Also according to CA, private security guards routinely abuse street children. This type of abuse has led to the death of one minor, as did two cases of abuse by National Police and two others by unknown persons, for a total of five minors killed by abuse. Two National Police officers were released on bail, and one private security guard remains in custody. There have been no convictions. Guerrilla forces also occasionally abused the civilian population, especially in rural areas. Evidence of torture and severe mistreatment are also prevalent in murders arising from nonpolitical disputes, particularly those related to narcotics trafficking.
d. Arbitrary Arrest, Detention, or Exile
Despite legal safeguards, there were frequent credible reports of arbitrary arrest, incommunicado detention, and failure to adhere to prescribed time limits in legal proceedings by the security forces. The Constitution requires that a court-issued arrest warrant be presented to a suspect prior to arrest unless he is caught in the act of committing a crime. Police may not detain a suspect for over 6 hours without bringing the case before a judge. The law also provides for bail and access to lawyers. There are 5,400 men and 277 women currently in prison. Reliable estimates suggest that about 70 percent have been sentenced and 30 percent are awaiting sentences. Prisoners are often detained past their legal trial or release dates. There are no reliable data on the number of arbitrary detentions, although most accounts agree that the security forces routinely ignore writs of habeas corpus in cases of illegal detention. ODHAG has charged that prisoners are sometimes not released in a timely fashion after completing their sentences due to the failure of justices of the peace to issue the necessary court order. According to the PDH's office, on January 6 National Policemen illegally detained Christian Daniel Espana Schmidt and Hector Alberto Ziguensa Aguilera and released them only in exchange for a sum of money. Police allegedly beat Espana Schmidt while they had him in custody. The Office of Professional Responsibility of the National Police concluded that the three officers involved in the apprehension had acted improperly. The PDH has recommended that the National Police director immediately fire the policemen; this has not happened. Humberto Miranda Ramos reported to MINUGUA that the local police chief and two of his officers had threatened and otherwise intimidated him. Miranda Ramos, a judge in San Benito, Peten, had ruled that a large number of arrests made by the police chief were illegal and began proceedings against him. Based on statements to the press by the police chief, MINUGUA believes the threats against Miranda Ramos are linked to the charges against the police chief. The Supreme Court filed a writ of habeas corpus in favor of the justice of the peace and ordered the police chief placed under house arrest, an order which, according to MINUGUA, he is ignoring. Other implicated police officers have been transferred to different parts of the country. There were numerous reports that policemen illegally detained street children; the authorities rarely took action in any of these incidents. The Constitution prohibits exile. However, there are many instances of threatened individuals fleeing the country out of fear for their lives.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary. However, the judicial system is dysfunctional and often unable to ensure a fair trial. International organizations, including MINUGUA, have commented on the Government's failure to investigate, prosecute, and punish many suspects, especially in cases involving members of the military and public security forces. The judiciary is composed of a Constitutional Court, a Supreme Court, appellate courts, lower courts, and courts of special jurisdiction (e.g. labor courts). The Constitution provides that the Congress select Supreme Court and appellate court magistrates from lists prepared by panels comprised of active magistrates, the Bar Association, and law school deans. Defendants have the right to be present at trials and to legal representation. The new Criminal Procedures Code, which came into effect in mid-1994, fundamentally alters the administration of criminal justice by strengthening the prosecutorial function, establishing a criminal public defenders program, and instituting open adversarial proceedings at the trial phase. Its key precepts include the presumption of innocence of the accused, the right to be present at trial, the right to counsel, and the granting of release on bail Because of the difficulty in implementing the new Code, however, the commitment to transform a dysfunctional judicial system into an effective one is being seriously tested. The legal obligation of the State (through its Public Ministry) to investigate crimes, prosecute offenders, and administer punishment has been severely hampered by the lack of preparation for the changes the Code introduces. The courts' response to human rights violations, as well as to general criminal activity, has been very slow. Competent authorities frequently do not conduct investigations even when they have informal knowledge of the identity of the perpetrators. Political will in the Public Ministry to pursue human rights cases vigorously is notably lacking. There is apparently no set procedure within the Public Ministry to govern criminal investigations and thus to ensure a viable response to criminal activity. Coordination between the Public Ministry and the National Police with regard to investigations is inadequate. Security forces personnel are reluctant to investigate cases potentially involving colleagues. Police are poorly paid, relatively few in number, and lack adequate resources and training. Judges and prosecutors are susceptible to intimidation and corruption and suffer from low pay, poor working conditions, and low morale. The Attorney General reportedly stated on September 6 that he was investigating corruption charges against several prosecutors. Such factors, combined with the lack of political will in the Public Ministry on human rights cases, the small number of prosecutors, and the interference of the Supreme Court with the lower courts, demonstrate the State's lack of commitment to combat the existing pervasive atmosphere of impunity. There are, however, signs that the reforms are taking root. Some 97 verbal trials had taken place under the new procedures by the end of 1995. Approximately 22 of these trials resulted in acquittals. Criminal elements murdered several of the prosecutors and magistrates who were implementing the new Code in apparent recognition of the challenge it posed to their illegal activities. Members of the judiciary, as well as prosecutors, continued to receive threats, either in an attempt to influence current decisions or as reprisals for past decisions. According to the Secretary General of the Supreme Court, numerous judges received threats related to their case loads. At least one of the threatened judges has resigned. On April 26, unknown persons broke into an Amatitlan court house, ransacked judicial records, stole files, and left a painted death threat for Judge Belter Mansilla. Two Public Ministry prosecutors were killed under suspicious circumstances. One of the slain prosecutors was investigating the November 1994 murder of Karin Fleischmann, for which Ricardo Ortega del Cid has been charged. Ortega had publicly threatened the previous prosecutor. Nine prosecutors also received threats. Officials from MINUGUA, ODHAG, and the PDH's office also received threats. Rampant corruption continues to impede the proper functioning of the police force, and there are credible allegations of some police involvement in narcotics trafficking. In numerous criminal cases, police were often unwilling to execute arrest warrants. There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution provides for the inviolability of home, correspondence, and private documents, but the authorities regularly disregard these provisions. Elements of the security forces continue to monitor private communications. Ministry of Defense officials admit that the military monitors communications "when necessary." The 1993 postal espionage case involving a Serrano administration presidential security staff member remains in the pretrial investigative stage. Many human rights workers alleged surveillance of their movements and activities. MINUGUA reports that the military has honored the June 1994 presidential order to suspend all conscription, including forced recruitment. There have been isolated cases of minors enlisting voluntarily, in which the offices of MINUGUA and the PDH have been able to secure the release of the underaged recruits. The commander of military zone 22 was suspended in late August, in part because of charges of forced recruitment. The Constitution requires that PAC service be voluntary. However, in some regions, army officers, military commissioners, and PAC leaders pressured men to become and remain members or extorted a fee from individuals in exchange for permission to resign. The PDH charged that military commissioners in Hacienda Vieja, Chimaltenango forcibly recruited community residents into PAC's. CERJ reports at least two instances in the combat-ridden Quiche department in which PAC members killed former PAC members or their family members in retaliation for their refusal to continue participation in PAC's. A minor and two adult PAC members were accused of killing a youth, Pedro Saquic, because of his father's refusal to remain in the PAC. Two of the arrest warrants stemming from the case have been served; a third PAC member remains at large. San Marcos diocese officials reported that military commissioners threatened to fire their workers if they declined further participation in PAC's. There are other credible reports that individuals refusing to serve in PAC's suffered threats and other abuses. On March 3, a human rights group of El Eden, Quiche, invited the town mayor, the commander of military zone 22, the deputy ombudsman, and MINUGUA, as well as several organizations in the capital city, and local residents, to draw up a document certifying that eight individuals, four of them members of the human rights group, no longer wished to be a part of the PAC. According to the PDH office, the mayor, charged by law to hold the meeting, deliberately avoided calling it and had to be escorted to the session by ombudsman officials. A dozen armed military personnel from the Cari military base, including three officers, were at the meeting table. During the meeting, PAC supporters intimidated and harassed those who wanted to withdraw from the PAC, forcing the unresolved adjournment of the session. At year's end, there had been no reported reprisals against those who declined to patrol in El Eden. The PDH's office reported that soldiers surveilled Gustavo Adolfo Albizures Pedroza, an investigator for FAMDEGUA (a human rights organization dedicated to issues regarding individuals who disappeared and their families), when he was researching names of disappeared persons in old newspapers at the National Periodical Archive. The Defense Ministry has admitted that soldiers were present at the library when Albizures was carrying out his research but denies that they were surveilling him, even though pictures were taken of this surveillance.
g. Use of Excessive Force and Violations of Humanitarian Law in Internal Conflicts
Guatemala's armed internal conflict entered its 35th year as both government and guerrilla forces continued to commit major human rights violations. Communities of People in Resistance (CPR), groups of displaced persons who have lived in remote areas to avoid army control and armed action since the 1980's, alleged that the army continued to harass them throughout the year. While army activity continued in the highlands, security improved in the valleys, so that in 1994 a number of CPR's descended from the mountains and established permanent villages. During 1995 no CPR's descended to establish villages; by year's end there were very few CPR's left in the remote highlands. According to data compiled by MINUGUA, ODHAG, and the PDH's office, early in the year the URNG attacked civilian infrastructure targets, including electrical and communications facilities; collected war taxes; burned farms; and caused civilian injuries through the use of mines. After signing the March 24 accord with MINUGUA, the URNG ceased its attacks on electrical towers and grids. However, URNG gunfire attack on an army base at Alotenango struck civilian houses and killed various farm animals. The army often refrained from returning fire during attacks on its bases near civilian areas to avoid possible civilian casualties. MINUGUA has verified the accuracy of complaints of ranch owners against the URNG's practice of collecting war taxes. In one fairly representative case, a group entered a ranch in Quetzaltenango department and delivered a letter requesting a war tax, with the amount based on the amount of land on the farm. The guerrillas took an inventory of the farm, left instructions on how the money should be paid, and took two Polaroid photographs of the farm administrator. They also questioned the workers as to whether they were being paid the legal minimum wage and attempted to interest a number of 14- to 16-year-old boys in joining their movement. Finally, they stated that although the tax was "voluntary," refusing to pay would be an indication that the farm's owners were not interested in maintaining good relations with the URNG. On March 29, guerrillas killed civilian Ofelia de La Cruz Garcia and wounded a soldier in a grenade attack on the military detachment in the Raxhua township in Chisec. Although the URNG denied responsibility for the civilian death, MINUGUA concluded that the attackers could have detected De La Cruz' presence. According to an army press release, two children seriously injured themselves after accidentally detonating a URNG-placed antipersonnel mine on March 24 on the banks of the Cuyumpa River in Huehuetenango. One of the victims also lost a hand. In another typical case, on July 19, an antitank mine killed one child and injured two others in Canton Chiguesha, Quiche. In response to MINUGUA queries about other incidents of civilian injuries caused by mine warfare, URNG leaders replied that their fighters accidentally overlooked these mines. During the period before the elections, guerrilla groups assembled captive audiences to listen to their political pronouncements. Armed guerrilla units occupied various towns for several hours to disseminate propaganda. Local military zone commanders did not resist these incursions, and there were no confrontations or casualties. On March 25, four radio stations in the capital reported that guerrillas forced them to play URNG propaganda tapes. Terrorist bombings conducted by unknown perpetrators continued throughout the year. At least 11 explosive devices were detonated or deactivated in Guatemala City and another 5 throughout the country. Several of these devices were accompanied by URNG leaflets. Other bomb attacks were believed to be orchestrated by rightist groups opposed to the peace negotiations. On April 4, a bomb exploded several blocks away from the presidential palace while the President met with visiting U.N. Secretary General Boutros Boutros Ghali. The explosion killed a USAC professor and injured his student assistant. The army claimed that the professor had ties to the URNG and had planned to disrupt the presidential meeting. In June two rocket propelled grenades exploded in the garden of retired general, deposed former president, and Guatemala Republican Front (FRG) political party presidential aspirant Efrain Rios Montt. On several occasions, death threat lists with the names of human rights and labor leaders and newspaper journalists circulated, but no one listed was injured or killed. MINUGUA verified that the army followed correct legal procedures in turning over to authorities captured guerrilla leader Timeto R. Navarijo Chutan. However, MINUGUA reports that when guerrilla Emilio Paau Caal voluntarily surrendered at Las Pozas, Peten, the military detained him for 5 days, contrary to the law. A forensic report and MINUGUA confirm that Paau's body displayed cigarette burns attributed to torture by his captors during his time in army detention. In a letter to government authorities, MINUGUA called their attention to the army's illegal detention of Paau and the conduct of the judge and prosecutor, who never investigated the date Paau was handed over to the judicial authorities or the army's treatment of him. The URNG claims it holds no prisoners, and there were no reports of any captives in their custody at year's end. American lawyer Jennifer Harbury continued to search for the remains of her husband, guerrilla leader Efrain Bamaca Velasquez, who disappeared following a March 1992 clash between army and URNG forces. The military contends that Bamaca died in the battle, but reliable information indicates that the army captured Bamaca and held him for some indeterminate period, interrogating and ultimately killing him. Several legal developments in ongoing court cases related to Bamaca's disappearance failed to shed aditional light on his fate. The judge conducting proceedings in the slander charges brought by the Solicitor General against Harbury, in response to her public statements that she would file suit against the military if Bamaca did not reapear, held a final hearing on January 12 and dismissed the case on January 27. In March there were new public allegations linking Colonel Julio Alpirez to Bamaca's death. Alpirez' involvement had previously been alleged in Santiago Cabrera's testimony in February 1992. On May 6, the Prosecutor General removed special prosecutor Leonel Machuca from the Bamaca case and replaced him with a new special prosecutor, Dr. Julio Arango. Arango tolerated death threats but resigned from the case on August 4, more from frustration at the Public Ministry's lack of political will to pursue the case than from fear. The Bamaca case was subsequently assigned to Retalhuleu District Prosecutor Silvia Jerez de Herrera. On May 22, a former army intelligence member Nery Angel Urizar stated that he had seen Bamaca alive after his capture and that another former URNG member and army collaborator had been killed and placed in Bamaca's grave. This was the first time that a former member of the military had publicly stated that the army had captured Bamaca alive. Also in May, the Public Ministry, acting on a rumor that Bamaca's remains were buried at the Cabanas military detachment in the Department of San Marcos, requested a judicial order to carry out an exhumation of that site. Although the order was legitimate, lawyers for the military obtained countermanding court orders to block two separate attempts to initiate the exhumation. MINUGUA is assisting the Public Ministry in its investigation as part of its support for due process. The case remained under investigation at year's end. On March 27, a guerrilla unit fired shots at a MINUGUA military officer in the Ixcan region as he descended from his vehicle to observe a banner posted by the guerrillas. The officer, wearing his blue U.N. beret, attempted to establish voice contact after the first round of fire. However, he was met by a second hail of bullets which hit his clearly marked MINUGUA vehicle and forced him to retreat.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of expression. In addition to regular and open criticism of government policies, the media publicizes communiques from the URNG, leftist groups, and others opposed to the Government or its policies. Journalists admit, however, that in some particularly sensitive cases pressure and fears of reprisal result in self-censorship and limits on investigative reporting. For example, they rarely criticize the military or military officers, or discuss topics which could be perceived to affect the interests of powerful economic groups and individuals. There are credible reports that hard-line elements of the military and their civilian supporters sponsored negative media campaigns directed at human rights activists and diplomatic officials for their support for human rights. Reports on human rights and narcotics trafficking are carefully written and sourced so that neither journalists nor their institutions are put at risk. Radio and television station owners observe that licensing procedures give the Government powerful leverage over their editorial policies, but they have not cited any instances in which the De Leon Government attempted to abuse this power. Continuing acts of political violence directed against journalists give credence to their complaints of pressure and coercion at the working level. ODHAG recorded 12 separate political acts against the media: one extrajudicial killing, one attempted killing, nine acts of intimidation, and one case of torture. On July 20, shots were fired at the home of journalist Melida Rubio, who had previously commented on aspects of the peace process. On July 24, four armed individuals attacked the Radio Solar station in Jutiapa, destroying some of the equipment and stealing the rest. On September 3, unknown intruders broke into the office of the CERIGUA press agency and stole a computer containing the agency's data base and list of subscribers but did not take other valuable equipment and cash. MINUGUA denounced this incident as an attempt at intimidation and a violation of freedom of expression. Police investigated but made no arrests.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the right of peaceful assembly and association, and the Government respects this right in practice. Peaceful demonstrations were common and demonstrators sometimes occupied government institutions, including the presidential palace, a public bank, government ministries, and the supreme court building. In most of these cases, the police acted with restraint, and the authorities negotiated a peaceful departure of demonstrators. The Government did not interfere with political associations, although the law requires organizations to obtain legal status, a cumbersome and expensive procedure.
c. Freedom of Religion
The Constitution provides for religious freedom, and the authorities respect it in practice. However, religious personnel are sometimes threatened and killed by personal and political enemies for their activism in human rights, indigenous rights, land reform, and related fields. On April 27, ODHAG denounced intimidation and harassment directed at Guatemala City parish priest Father Luis Perez Bamaca, including repeated firing at his residence.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Government does not restrict foreign travel, nor does it revoke citizenship for political reasons. The authorities did not restrict movement inside the country except in some areas of conflict, where the army and PAC's limited travel. PAC leader and land speculator Raul Martinez of Kaibil Balam, Quiche, led efforts to oppose a scheduled return of several hundred former refugees to nearby San Antonio Tzeja. In late June, Martinez and his followers held hostage two MINUGUA officials, an official from the office of the U.N. High Commissioner for Refugees (UNHCR), a volunteer nurse, and a minister for 1 day in an attempt to have an arrest warrant against him withdrawn. Despite the earlier arrest warrant (based on a complaint by UNHCR concerning threats by Martinez) and the hostage-taking, Martinez continued to live and work openly in his village with no interference from the authorities. Guerrillas continued to establish roadblocks to rob private citizens, extort protection payments from businessmen, attack and drain petroleum trucks, and hinder travel in certain rural areas. Voluntary repatriation of refugees from Mexico continued. According to the UNHCR, 9,500 refugees returned to Guatemala in 1995, bringing the total to over 16,000 since initiation of the program in 1993.
Section 3 Respect for Political Rights: The Right of Citizens to Change Their Government
Citizens have the right to change their government by peaceful and democratic means, through secret ballot and universal suffrage for those 18 years and older. Members of the armed forces and police may not vote. Since the return to democracy and civilian rule in 1985, there have been seven free elections. International observers concluded that the general elections for President, Vice President, Congress, and municipal offices, held on November 12, were free and fair. Since none of the candidates for President received an absolute majority, a runoff election was held January 7, 1996, between Alvaro Arzu of the National Advancement Party (PAN) and Alfonso Portillo of the Guatemala Republican Front (FRG). Arzu won a close election, gaining 51.2 percent of the vote to Portillo's 48.8 percent, and took office January 14, 1996. Reflecting a greater opening for political activity, 24 parties campaigned, including a broad-front coalition composed of civil sector, human rights, and labor leaders. The parties put forward 19 presidential candidates and thousands of candidates for congressional deputy and mayor. The election also was characterized by a greater participation by grassroots organizations and the left, incorporated into a newly formed coalition party called the New Guatemalan Democratic Front (FDNG). Although the URNG did not participate directly, in a radical departure from previous policy, it did call for voter participation in the election and agreed to a unilateral cease-fire for the last 2 weeks of the first election period in return for political parties' commitment to abide by those peace accords previously agreed to by the Government and the URNG. Other organizations including the Mutual Support Group, the Confederation of Guatemalan Widows (CONAVIGUA), the Rigoberta Menchu Foundation, and various unions also dropped their longstanding call for abstention. Representatives of the Assembly of Civil Sectors joined the leftist FDNG, which named several prominent community leaders as candidates for national deputy. In the end, the coalition picked up almost 8 percent of the vote and elected six deputies. Since the return to democratic government in 1985, Guatemala has had generally free and fair elections, according to international observers. There is, nevertheless, a tradition of political violence which accompanies elections, and voter turnout has been weak, reaching a low point of 15 percent in the 1994 referendum and 18 percent later the same year in the congressional election. Despite a widely publicized "gentlemen's agreement" in July signed by the Government and the leaders of the political parties, there were several acts of violence, including assaults and murders believed related to the campaign. Following the nationwide campaign by various groups to increase voter registration, more than 100,000 new voters registered, an increase of 5 percent over the nearly 3.5 million registered in 1994. Despite this increase, participation in the 1995 general elections was modest at 46 percent. Lack of transportation to polling places and voter apathy caused by lack of faith in the political party system both contributed to the poor turnout. There are no legal impediments to women's participation in politics, but women are underrepresented in the political arena. Nevertheless, women do hold some prominent political positions, including two cabinet posts. In the November elections, 11 women were elected to the 80-member Congress. Two women also serve as Supreme Court justices and one as a Constitutional Court justice. Indigenous people enjoy equal rights under the Constitution. Some have attained high positions as army officers (including one general), judges, and government officials, including a cabinet member and eight members of Congress. In the November elections, 40 indigenous candidates won mayoral positions (out of 300 municipalities), including the mayor of Quezaltenango, the second largest city. Nonetheless, they are still underrepresented in politics due to limited educational opportunity and pervasive discrimination (see Section 5).
Section 4 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government permits local human rights groups to operate freely. However, as noted by MINUGUA, a pervasive attitude continued among rightwing elements of the army, military commissioners, and civil defense patrol members that human rights activists were really subversives tied to the URNG. The De Leon administration, through its presidential human rights commission director, repeatedly threatened to expel foreign human rights activists, who the administration believes have violated the law through alleged participation in the takeover of public and private property. Although the directorate has never carried out this threat, this atmosphere has caused some human rights activists and institutions to be targeted for unwarranted criticism, surveillance, and physical abuse. A Government-URNG accord led to the November 1994 introduction of MINUGUA into Guatemala. The U.N. Human Rights Verification Mission (MINUGUA) became fully staffed in 1995 and now numbers 305 personnel, with 8 regional and 5 subregional offices. MINUGUA's extensive international presence, its verification of alleged abuses, its detailed periodic reporting, and its programs to strengthen civilian institutions serve as a deterrent to human rights abuses. MINUGUA's three comprehensive reports during 1995 documented both the Government's and the URNG's successes and failures in implementing the terms of the human rights agreement. In May CONAVIGUA director Rosalina Tuyuc denounced to Public Ministry officials continued acts of intimidation by soldiers, military commissioners, and PAC members against CONAVIGUA members and reiterated a call for an end to the impunity enjoyed by security forces for human rights related crimes. On April 9, a PAC member disabled CONAVIGUA member Maria de Leon Santiago by hitting her in the head with a stone and then proceeded to beat her as she lay on the ground bleeding. The PAC member in question had previously threatened Santiago, accusing her of being a guerrilla. MINUGUA reported that the Public Ministry has not carried out an investigation nor has the justice of the peace ordered the assailant's arrest. On July 3, soldiers clubbed U.S. citizen Daniel Robert "Sky" Callahan on the knee with a rifle butt while he was filming a protest by peasants in a main Guatemala City plaza. Four days later, on July 7, unidentified assailants abducted and severely beat Callahan and berated him for his film-making. Authorities promised a full investigation, and the Ministry of Defense paid for Callahan's return trip to facilitate an investigation into the attack. At year's end, the investigation remained open but no suspects had been identified. Relations between the PDH's office and the executive branch were strained. MINUGUA reported that some security force agents intimidated and refused to cooperate with Ombudsman officials. High-ranking officials working in the fields of human rights and jurisprudence complained publicly and privately of receiving threats stemming from their interest in resolving cases related to human rights violations, official corruption, and drug trafficking. On November 11, unidentified gunmen fired an automatic weapon at MINUGUA's Guatemala City regional office. Although identity of those responsible and the nature of the motive remain unknown, there is widespread belief that the shooting was intended as an act of political intimidation. Ombudsman Jorge Mario Garcia Laguardia also complained in August that the executive was neither funding his office adequately nor implementing his recommendations on human rights. Both the PDH's office and ODHAG continued to enjoy widespread public support and respect. Senior government officials also met numerous foreign officials and human rights monitors. After a persistent 14-year effort, Peace Brigades International, an international human rights organization which accompanies persons whose lives may be in danger for their political beliefs or activities, obtained government recognition. The absence of legal status did not prevent other human rights organizations from operating openly.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language, or Social Status
The Constitution states that all human beings are free and equal in dignity and rights and that the State must protect the life, liberty, justice, security, peace, and development of all Guatemalans. As the violations described throughout this report reveal, the Government is frequently unable or unwilling to enforce these provisions.
CONAVIGUA and the PDH reported that violence against women, including domestic violence, remains common among all social classes. There is no specific law against domestic violence, although it is considered to fall under other statutes. Victims rarely report criminal sexual violence, and relatively few rape cases go to court. The PDH reported complaints of spousal abuse committed by husbands have risen from 30 to 120 complaints per month due to increased nationwide educational programs, which have encouraged women to seek assistance. There are family courts, and judges may issue an injunction against an abusive spouse or companion, which police are charged with enforcing. There is also a Women's Rights Department of the PDH, and various nongovernmental organizations (NGO's) provide medical and legal assistance and information on family planning. The Constitution asserts the principle of equality between the sexes. Nonetheless, women face job discrimination and on average receive significantly lower pay than men. They are primarily employed in low-wage jobs in the textile industry, agriculture, retail businesses, and the public sector. More working women than men are employed in the informal sector of the economy, where pay and benefits are generally lower. A 1989 survey reported that in Guatemala City women are underrepresented in high-income categories and overrepresented among poorly paid workers. Women may own, manage, and inherit property on an equal basis with men. In some cases, domestic laws remain discriminatory against women, such as the Penal Code's provisions on adultery. Only women may be charged with adultery, while men fall under a different statute which is more limited, difficult to prove, and carries a lesser penalty.
The Constitution charges the Government with protecting the physical and mental health, as well as the moral well-being, of minors. These provisions notwithstanding, the Government consistently fails to devote sufficient resources to ensure adequate educational and health services for children. The abuse of street children (see Section 1.c.) is a serious problem in major cities. Estimated numbers of street children range between 1,500 and 5,000, with the majority of these youths concentrated in Guatemala City. Corrupt police and military personnel or other criminal elements often recruit these children into thievery or prostitution rings. The Government and a number of NGO's operate youth centers, but the funds devoted to them are not sufficient to adequately address the problem. In May the Presidential Human Rights Commission resumed weekly meetings of the Permanent Commission for Children, composed of representatives from Casa Alianza and from the judicial and executive branches, with the aim of addressing the problems of street children. Relations between Casa Alianza and the National Police have often been strained.
People With Disabilities
The Constitution provides that the State should protect disabled persons. Nonetheless, physically disabled persons are discriminated against in employment practices, and few resources are devoted to combat this problem or otherwise to assist people with disabilities. There is no legislation mandating provision of accessibility for the disabled.
The Constitution states that Guatemala is composed of diverse ethnic groups and obliges the Government to recognize, respect, and promote the lifestyles, customs, traditions, forms of social organization, and manner of dress of indigenous people. Indigenous people comprise about one-half the population but remain largely outside of the country's political, economic, social, and cultural mainstream. Indigenous people suffered most of the serious human rights abuses described throughout this report. Conscription, suspended by President De Leon, primarily targeted indigenous men in rural areas. Although the Constitution accords indigenous people equal rights, in practice, they have only minimal participation in decisions affecting their lands, culture, traditions, and allocation of natural resources. Rural indigenous people have limited educational opportunities and thus have fewer employment opportunities. Many indigenous people are illiterate and do not speak Spanish. Linguistic barriers hinder interaction with the Government and limit access to public services, including the judiciary, since few officials speak any of the 21 indigenous languages. Indigenous persons arrested for crimes are often at a disadvantage due to their limited comprehension of Spanish. The new Criminal Procedures Code, which took effect in July 1994, states that, beginning in July 1996, the courts must provide interpretation to anyone requiring such services during criminal proceedings.
Section 6 Worker Rights
a. The Right of Association
The Constitution and the Labor Code provide workers complete freedom of association and the right to form and join trade unions. The Government does not control unions. Major reforms to the Labor Code in 1992 mandated concrete steps to improve worker rights by facilitating freedom of association, strengthening the rights of working women, increasing penalties for violations of labor laws, and enhancing the role of the Labor Ministry and labor courts in enforcing them. All workers have the right to form or join unions, including public sector employees, with the exception of members of security forces. National Police officers have formed two ad hoc associations to discuss working conditions with the chief of police, and are in the process of forming a union. Approximately 8 percent of the work force, or 240,000 out of 3 million workers, are members of labor organizations. The 993 registered unions in the country are independent of the Government and political party domination. Labor Code amendments simplified the process for unions to obtain legal status. The Minister of Labor further revised the administrative process, reducing the number of steps within the Ministry for consideration of union applications and establishing strict timetables. The Minister warned officials that noncompliance with the timetable could lead to dismissal of those responsible for the delay. These new regulations accelerated the approval procedure, and the backlog of union applications was largely eliminated. The Labor Ministry granted legal status to 95 unions in 1995. Of the registered unions, 834 are in the private sector, and 159 are in the public sector. The Labor Ministry initiated a program to assist unions with their applications to avoid some of the pitfalls still inherent in the Labor Code. Workers have the right to strike, but Labor Code procedures make legal strikes cumbersome. Labor organizers criticize the requirement that two-thirds of the workers must approve a vote to strike, the prohibition of strikes by agricultural workers at harvest time, and the right of the Government to prohibit strikes which it considers seriously harmful to the national economy. A strike by employees of La Aurora Zoo in April was the first legally authorized strike in 25 years. Those strikes that do occur, frequently in the public sector, are almost always called without legal authorization, and in practice the Government makes no effort to intervene on the basis of a strike's illegality. Nonetheless, the lack of legal approval for a strike can be used as a threat against strikers. Workers can be suspended or fired for failing to show up for work if a strike has not been legally approved. The law protects workers from retribution for forming and participating in trade union activities, but enforcement of these provisions varies. While an increasing number of employers accept unionization, many routinely seek to circumvent Labor Code provisions in order to resist union activities, which many view as historically confrontational and disruptive. An ineffective legal system and the inadequate level of penalties for violations have hindered enforcement of the right to form unions and participate in trade union activities. While penalties were increased in the 1992 Labor Code reform, the previous Supreme Court (replaced in October 1994) delayed full implementation of the reforms. Trade union leaders and members continued to suffer instances of violence and abuse, including threats, assassination attempts, kidnapings, and physical harm. ODHAG reported that unknown assailants killed 2 unionists, injured 5, and threatened 19, although it was not always clear whether such violence was union related. Public sector union leaders, as well as unionists in the high-profile in-bond export sector, reported receiving threats against themselves and their families. Felix Hernandez, Secretary General of FENASEP, a confederation of public employees unions, went into hiding for several weeks after threats were made on his life. He had exposed alleged corruption by the Ministry of Government in the purchase of police patrol cars. Flor de Maria Salguera, a maquila union organizer, was abducted from a bus and assaulted on May 17, and Olimpia Lara, the daughter of Health Workers' Union officer Luis Lara, was severely beaten on September 7. During a strike by his union, Ivo Garcia, secretary of the electrical workers' union, was kidnaped from his house on September 12 and held for 18 hours. The authorities began investigations of these cases, but none had been resolved at year's end. Unions may and do form federations and confederations and join international organizations. An active "solidarity" movement claims approximately 250,000 members in over 475 companies. Unions may legally continue to operate in workplaces which have solidarity associations, and workers have the right to choose between the two or belong to both. The Government views these associations as civic organizations which need not interfere with the functioning of trade unions. The amended Labor Code stipulates very clearly that trade unions have the exclusive right to bargain collectively over work conditions on behalf of workers. Unionists charge, however, that management promotes solidarity associations to avoid the formation of trade unions or to rival existing labor unions. There are credible reports that some of these associations did not always adhere to democratic principles in their formation and management and that workers are unable to participate fully and freely in decisionmaking. Similar credible charges are made against some trade union organizations. At the request of trade union leaders, the independent PDH, through its Office for Economic and Social Issues, receives complaints related to trade union activities. Union leaders and workers filed a number of complaints with the PDH during the year, and the Ombudsman has spoken out in public statements about labor conditions in varying sectors of the economy. The PDH can investigate their complaints and issue a statement. The office has no enforcement powers but can attempt to ameliorate the situation through publicity and moral suasion.
b. The Right to Organize and Bargain Collectively
Workers have the right to organize and bargain collectively. However, the practice of collective bargaining is limited by the weak structure of the union movement, the requirement that 25 percent of the workers in a factory or business must be union members in order for collective bargaining to take place, the lack of experience with this practice, and the preference of management in many cases to avoid formal ties with trade unions. While both management and the unions honored some well-written collective contracts, in other instances both parties openly ignored and violated contracts. Most workers, even those organized by trade unions, do not have collective contracts to cover their wages and working conditions but do have individual contracts as required by law. Most workers receive the minimum wages established by bipartite commissions, which operate under the guidance of the Ministry of Labor. Employers cannot dismiss workers for participating in the formation of a trade union; workers file complaints in this regard with the labor inspectors for resolution. The Labor Code provides for the right of employers to fire union workers for cause, permits workers to appeal their dismissal to the labor courts, and requires the reinstatement of any union worker fired without cause. The revised Code prohibits employers from firing workers for union organizing and protects them for 60 days following the official publication of approval of the union. It also prohibits employers from firing any member of the executive committee of a union and protects them for an additional 12 months after they are no longer on the executive committee. An employer may fire a member of the union's executive committee for cause only after a trial and issuance of a court resolution. Labor courts responsible for enforcing labor laws continued to be generally ineffective. Although two new labor courts began to function, efforts to restructure and modernize the labor court system made little headway. A heavy backlog of labor cases continues to clog the courts due to corruption, inefficiency, and lack of resources. There is only spotty enforcement of the Labor Code, due to the scarcity of labor inspectors, corruption, the lack of adequate training and resources, and structural weaknesses (or the lack of political will) in the labor court system. Nonetheless, enforcement is improving as new labor inspectors complete training and begin work outside the capital, allowing the Ministry of Labor to increase significantly its rate of inspections. The Ministry conducted a series of inspections at farms and plantations in rural areas, especially in Alta and Baja Verapaz, and cited those employers who were not paying the minimum wage. The number of ranches in these regions paying below minimum wage dropped from 42.6 percent of the total number inspected to 13.9 percent after the completion of the program. The Ministry of Labor also reorganized the Labor Inspector Corps to permit some complaints to be heard at the Ministry of Labor rather than requiring that inspectors travel to each work site. The Ministry has also increased the number of court cases filed for failure to comply with the Labor Code and has begun an educational campaign on worker rights (especially the rights of minors and women workers), including providing some documents in indigenous languages. Labor laws and regulations apply throughout the country, including in the few export processing zones (EPZ's). The laws governing EPZ's are not discriminatory on the subject of organizing trade unions or collective bargaining. While union leaders often blame employer pressures and unofficially restricted access to the EPZ's for their virtual inability to organize workers in these zones, labor conditions in the EPZ's are no different from those found outside the zones.
c. Prohibition of Forced or Compulsory Labor
The Constitution bars forced or compulsory labor, and the practice does not exist. However, human rights and indigenous groups continue to charge that there is coerced participation in the PAC's, and that this coercion violates prohibitions against forced labor.
d. Minimum Age for Employment of Children
The Constitution bars employment of minors under the age of 14 without written permission from the Ministry of Labor. However, children below this age are regularly employed. The laws prohibits minors from night work, extra hours (the legal workday for minors under age 14 is 6 hours; for minors age 14 to 17, it is 7 hours), and from working in establishments where alcoholic beverages are served or in unhealthy or dangerous conditions. Laws governing the employment of minors are not effectively enforced, due to the shortage of qualified labor inspectors and structural weaknesses in the labor court system. While only 5,000 minors have permission from the Labor Ministry to work legally, thousands working without legal permission are open to exploitation, generally receiving no social benefits, no social insurance, no vacations, no severance pay, and below minimum salaries. The Labor Ministry has a program to educate minors, their parents, and employers on the rights of minors in the labor market. Economic necessity, however, forces most families to have their children seek some type of employment to supplement the family income. There are no export industries in which child labor is a significant factor. Child labor is largely confined to small or family enterprises, to agricultural work, and to the informal sectors of the economy. The Constitution provides for compulsory education for all children up to the age of 12 or to the sixth grade. However, less than half the population actually receives a primary education. Children in rural and indigenous areas are less likely to complete primary school.
e. Acceptable Conditions of Work
Although the law sets minimum wages, the legally mandated minimum wage for most unskilled and semiskilled workers is not always paid. A bilateral committee representing labor and management in specific economic sectors is named each year to make recommendations for increases in the minimum wage. In the event that agreement is not possible, the Government may decree such increases. The minimum wage was raised by 10 percent in December, effective January 2, 1996. The new rate is $2.93 (17.60 quetzales) for industrial workers for an 8-hour workday, including a required hourly bonus and $2.66 (15.95 quetzales) per day plus mandatory productivity bonuses for agricultural workers. The minimum wage is not sufficient to provide even a minimum standard of living for a worker and family. An estimated 80 percent of the population lives below the poverty line, including approximately 60 percent of those employed. The legal workday is 8 hours, and the workweek is 44 hours, but a tradition of much longer hours remains in place due to economic conditions. The amended Labor Code requires a weekly paid rest period of at least 24 hours. Trade union leaders and human rights groups charge that workers are sometimes forced to work overtime, often without premium pay, in order to meet work requirements. Labor inspectors report that numerous instances were uncovered of such abuses, but corruption and inefficiencies in the labor court system inhibit adequate enforcement of the law. Occupational health and safety standards are inadequate. As with other aspects of the Labor Law, enforcement of standards that do exist is also inadequate. Workers have the legal right to remove themselves from dangerous workplace situations, and the law provides them with protection for their continued employment. However, few workers are willing to jeopardize their jobs by complaining about unsafe working conditions. When serious or fatal industrial accidents do occur, the authorities generally take no legal steps against those responsible. The Labor Ministry provides training courses for labor inspectors in health and safety standards but does not accord them a high priority due to scarce resources. The Government does not effectively enforce legislation requiring companies with more than 50 employees to provide on-site medical facilities for their workers, although most large employers do provide such facilities.