United States Department of State, U.S. Department of State Country Report on Human Rights Practices 1998 - Guatemala, 26 February 1999, available at: http://www.refworld.org/docid/3ae6aa7f14.html [accessed 26 May 2013]
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Guatemala is a democratic republic with separation of powers and a centralized national administration. The 1985 Constitution provides for election by universal suffrage of a one-term president and a unicameral congress. In the November 1995 elections, the National Advancement Party (PAN) won 42 of the 80 congressional seats; however, no presidential candidate received an absolute majority of the votes. Alvaro Arzu Irigoyen of the PAN won the runoff presidential election and took office in January 1996. Reflecting a greater opening for political activity, 24 parties, including a broad front coalition composed of civic, human rights, and labor leaders, campaigned in the free and fair elections. The judiciary is independent, but suffers from inefficiency and corruption. The Arzu administration continued implementation of the Peace Accords that it signed with the Guatemalan National Revolutionary Unity (URNG) guerrillas in 1996. In October the Congress approved a number of key constitutional reforms envisioned by the Peace Accords. These reforms recognize the multiethnic, pluricultural, and multilingual nature of the country, permit a civilian Minister of Defense, and redefine the role of the military. The reforms will not go into effect until approved by a citizensâ referendum planned for 1999. The United Nations Human Rights Verification Mission (MINUGUA), established in November 1994 to monitor compliance with the Government-URNG human rights accord, continued monitoring peace implementation issues. The Minister of Government oversees the National Civilian Police (PNC), created in January 1997 under the terms of the Peace Accords. The PNC has sole responsibility for internal security; however, during the year members of the National Police (PN) remained on duty. There are no active members of the military in the police command structure, but President Arzu ordered the army to support the police temporarily in response to a nationwide wave of violent crime. Military forces are nominally subordinated to civilian police in joint operations. Some members of the police and security forces committed human rights abuses. The agricultural-based, private sector-oriented economy grew by approximately 4 percent in real terms in 1997. Coffee, sugar, and bananas are the leading exports, and more than half the work force is engaged in some form of agriculture, although the products of "maquila" or assembly operations are gaining in importance. Inflation was about 8 percent in 1998. In October Hurricane Mitch caused approximately 250 deaths and infrastructure, crop, and other losses totaling an estimated $550 million. There is a marked disparity in income distribution, and poverty is pervasive, particularly in the large indigenous community. According to United Nations (U.N.) statistics, approximately 80 percent of citizens live in poverty; this figure rises to 90 percent among the indigenous population. Per capita gross national product was approximately $1,650 in 1997. The overall human rights situation continued to improve measurably. New cases of human rights abuses continued to decline, but problems remain in some areas. Some police officers were accused of extrajudicial killings and mistreated suspects and detainees. Prison conditions remain harsh. Arbitrary arrest and detention and lengthy pretrial detention remain problems. The PNC was deployed and preliminary reports of its actions showed improvement compared with the PNâs record. With judges and other law enforcement officials subject to intimidation and corruption, the inefficient judicial system is often unable to ensure fair trials and due process. Efforts to reform the judiciary continued in an attempt to eliminate the climate of impunity. The Government achieved convictions in several important cases involving past human rights violations, including its first conviction of participants in conflict-era massacres, although other cases remain unresolved. There were unconfirmed reports that elements of the police and military infringed on citizens' privacy rights. In the aftermath of Hurricane Mitch, President Arzu temporarily suspended certain civil liberties as an emergency measure. Discrimination and violence against women persisted, as did societal abuse of children and discrimination against the disabled and indigenous people. On April 26, an internationally renowned Catholic bishop and human rights activist was murdered under suspicious circumstances. Lynchings, mob attacks, and unsolved killings continued, and the Government frequently was unable to prosecute the perpetrators.
RESPECT FOR HUMAN RIGHTS
Section 1 Respect for the Integrity of the Person, Including Freedom From:
a. Political and Other Extrajudicial Killing
There were no allegations of politically motivated killings by government agents; however, members of the police were accused of some extrajudicial killings. The Government demonstrated a willingness to arrest and prosecute those responsible. However, the scarcity of law enforcement resources and a weak prosecutorial and judicial system prevented the Government from adequately investigating many killings or other crimes or arresting and successfully prosecuting perpetrators. The number of extrajudicial killings continued to decline and the nature of violations changed. The office of the Human Rights Ombudsman (PDH), which generally compiles data based on personal interviews with victims and their families, reported 32 complaints of extrajudicial killings during the year, compared with 134 in all of 1997, 173 in 1996, and 216 in 1995. MINUGUA investigated 35 complaints of extrajudicial killings during the year and had confirmed 13 by year's end. It reported 40 such complaints in 1997. Primarily using media reports, the Archbishop's Human Rights Office (ODHAG) compiled 61 unconfirmed reports of extrajudicial killings during the year, compared with 118 in all of 1997. In classifying murders as extrajudicial killings, the ODHAG applies a broader definition than the PDH or MINUGUA, including many cases in which state agents were not suspected. Although a number of cases from past years remained unresolved, there were several convictions during the year for past extrajudicial killings by members of the security forces. In January a court sentenced each of 11 former members of a civil defense patrol (PAC) to 10 years' imprisonment for their roles in the 1993 killing of Juan Pablo Chanay during a demonstration; in July the court lengthened these sentences to 25 years. Several former PAC members involved in the incident remained at large. The investigation of retired Brigadier General Luis Felipe Miranda Trejo, the alleged intellectual author of the killing, remained open. In February 1997, the Government reached a settlement with the plaintiffs in the case before the Inter-American Commission on Human Rights (IACHR). This settlement provided for an indemnity to Chanayâs family, which the Government paid, and an indemnity to the community in the form of a series of public works projects. The Government has nearly completed the construction of these public works projects. In February a civilian court convicted Obdulio Villanueva Arevalo, a member of the Presidential Military Staff, of voluntary manslaughter and sentenced him to 5 years' imprisonment and a fine for the 1996 death of Pedro Sas Rompich. The day of Sas Rompich's death, Villanueva was on duty as a presidential bodyguard while President Arzu and his wife were horseback riding. Villanueva shot and killed Sas Rompich when the latter drove his truck towards the President, reportedly in a threatening manner. Villanueva's prison term was commuted in April, subject to his payment of a fine. During Villanueva's trial, EMP members reportedly attempted to intimidate those in attendance. In addition, the court called for an investigation into the fact that the EMP had intercepted and opened an envelope containing laboratory test results relating to the victim's body. In March the Inter-American Court of Human Rights found the Government liable in the "white van" case for the murder of 5 persons, the torture of 7 persons, and for violating the right to liberty of 8 persons. Members of the now-disbanded Treasury Police kidnaped and then either released or killed 11 persons between 1987 and 1988. Proceedings to set the amount of compensation due are pending. In May a court convicted Marlon Salazar and Roberto Antonio Trabanino of the April 1994 murder of Constitutional Court President Epaminondas Gonzalez Dubon and sentenced each of them to 27 years' imprisonment. A third suspect, Mario Rene Salazar, remained at large. In July the Constitutional Court denied an appeal of the death sentence imposed against three former police officers for a 1995 murder (and an attempted murder) in the so-called Patrol No. 603 case. The three former police officers had been convicted in 1996 and sentenced to death for what appeared to be a "social cleansing" operation. In August a court convicted four men--two former police officers and two former members of the military--and sentenced them to 50 years' imprisonment for the January 1997 murder of Congressman Joel Salomon Mendoza Pineda and his young nephew. The Public Ministry is investigating two members of Congress and the mayor of Escuintla as the alleged intellectual authors of the murder. On November 30, a criminal trial court in Salama convicted and sentenced to death three former PAC members for their roles in the 1982 massacres in the hamlets of Rio Negro and Agua Fria. These massacres resulted in the deaths of an estimated 250 civilians. The verdict represents the first conviction of the perpetrators of a wartime massacre of civilians and sets a key precedent as other massacre cases proceed to trial. The evidence presented included information gained from the exhumation of victimsâ remains. The defendants appealed their conviction. In the criminal case arising out of the 1994 shooting death of University of San Carlos student demonstrator Mario Alioto Sanchez, the private plaintiffs appealed to the Constitutional Court for the reinstatement of homicide convictions against several former senior government officials and others. The Constitutional Court remanded the decision to the Supreme Court, whose decision was pending at yearâs end. The trial of 1 officer and 24 soldiers began in Coban on April 21 in the case of the October 1995 killing of 11 returned refugees at the Xaman ranch in Alta Verapaz by an army patrol. However, only days after the opening hearing, a motion by private plaintiff Rigoberta Menchu challenging the competency of the court based on several of its evidentiary rulings resulted in the suspension of the proceedings until the motion was decided. The trial subsequently resumed in December. The accused persons remained in jail pending the completion of the trial. Both the court's president and the private plaintiff's attorney complained of harassment by unknown persons.In addition, the original government prosecutor in the case and his assistant resigned in October, complaining of a lack of institutional support on the part of the Public Ministry. The prosecutor subsequently left the country, reportedly having been the target of threats and acts of intimidation. On June 23, the Public Ministry indicted the three high-ranking military officers accused of ordering the 1990 murder of anthropologist Myrna Mack. On the same day, private plaintiff Helen Mack moved to have the trial judge recused for alleged bias, excessive delays, and other irregularities. On September 27, an appeals court granted Mack's motion for the recusal of the trial judge, and the case subsequently was assigned to another court. A preliminary hearing in the case against the three was scheduled for January 1999. In December a criminal trial opened, but was immediately suspended until 1999, against Vicente Cifuentes, the former PAC member arrested in March 1997 for the 1985 killings of American journalists Nicholas Blake and Griffith Davis. The authorities issued arrest warrants for three other suspects, but they remained at large at yearâs end. In January the Inter-American Court of Human Rights found the Government culpable in Blake's disappearance and death and ordered the Government to pay Blake's survivors compensation; a damages award is pending. The Court also ruled that the Government was obliged to investigate those responsible for the murders and sanction them. The August 1994 killing by police of three workers at La Exacta farm remained under investigation, and the criminal case remained open. In the case before the IACHR, the parties attempted to resolve the matter through the IACHR's amicable settlement procedures, thus far without success. The Center for Legal Assistance in Human Rights is acting as the community's representative in these discussions with the Government, through the President's Human Rights Commission (COPREDEH). Labor court charges still were pending; the parties met during the year to try to negotiate a settlement in that action. In the case arising out of the 1993 murder of newspaper publisher and former presidential candidate Jorge Carpio, charges remained open against a former PAC member, Francisco Ixcoy Lopez, who is at large; an arrest warrant has been outstanding since 1995. In 1997 a court convicted former PAC member Juan Acabal Pazan and sentenced him to 30 years' imprisonment for his role in the murder. A court decision was pending on the private plaintiffs' motion to reopen charges against a number of persons--including former senior government officials--believed to have participated in the crime as material or intellectual authors, or to have assisted in its coverup. There was also a case pending before the IACHR. Proceedings continued in the retrial of former military commissioner Candido Noriega on 158 criminal charges--mostly for crimes committed in the early 1980's. In July a motion by a plaintiff in the case for the recusal of the trial court was denied, and several of the charges pending against Noriega were dropped. The new trial against Noriega was expected to begin in early 1999. In the case arising out of the 1994 murder of evangelical minister Pascual Serech in Chimaltenango, charges remained pending against military commissioner Victor Roman, an alleged collaborator in the crime and also the accused perpetrator of the 1995 murder of evangelical pastor Manuel Saquic. Roman remained at large despite an order for his capture and an offer of a reward. There have been about 70 clandestine cemeteries exhumed in the past 5 years. Most of the bodies recovered have been those of victims of military or paramilitary killings in areas such as Rabinal, Las Dos Erres, and Panzos. Forensics groups are using the information obtained from the exhumations to verify eyewitness reports of massacres and to determine at least in general who might have been responsible. The evidence may be used in some criminal cases; forensic evidence from exhumations at the villages of Rio Negro and Agua Fria was introduced into the successful prosecution in November of three paramilitary participants in conflict-era massacres in those villages. In addition, the Historical Clarification Commission (CEH-see Section 4) solicited the exhumation of several clandestine cemeteries, including those at Belen, Acul, and Panzos. In 1997 the ODHAG's Forensic Anthropology Unit exhumed a burial site at Chacalte and found approximately 75 skeletons of victims of a massacre by guerrillas in which 200 persons are believed to have died. A number of other past extrajudicial killings remained unresolved, including the 1989 disappearances of 10 university students, 5 of whom later were found dead, and the murder of Miguel Us Mejia, a member of CERJ (an indigenous human rights organization), and his wife, Lucia Tiu Tum. Intimidation and even the murder of witnesses continued to be a problem. In June, for example, Ricardo Molina Guevara, a key witness in a kidnaping case, was murdered in an apparent attempt to prevent his testimony. According to press reports, 26 witnesses who testified in the trial for Pascual Serech's murder were targeted by threats or acts of intimidation. This trial resulted in the conviction of former military commissioner Armando Tucubal in September 1997. There were at least two allegations of politically motivated killings during the year, including the murder of Bishop Juan Gerardi on April 26 and of the acting mayor of Santa Cruz del Quiche, Luis Yat Zapeta, on May 6. The murder of Bishop Gerardi, the Coordinator of the Archbishop's Office on Human Rights, occurred just 2 days after his delivery of the final report of the "Recovery of Historical Memory" project, which detailed many of the human rights abuses committed during the 36-year-long internal conflict (see Section 4). Because the Bishop's murder occurred so soon after his public delivery of the report, which held the military, military commissioners, and civil patrols responsible for approximately 80 percent of war-related human rights violations, some observers suspect a political motive for the crime. The high-profile nature of the case led the Government to establish a high-level commission to support the investigation. The authorities arrested indigent Carlos Enrique Vielman on April 30, then released him on June 29 due to a lack of evidence linking him to the crime. They also detained the parish house cook and then released her on July 28; although murder charges against her were dropped, she was still under investigation at year's end. The authorities also arrested the slain bishop's assistant and cooccupant of the parish house, Father Mario Orantes, and charged him on October 1 with the murder. Although the indictment alleged that Father Orantes did not act alone in the crime, the prosecutor did not identify other participants. At year's end, the Government's investigation of the murder had not yet established the motive for the killing. The apparent failure of the prosecutor to investigate all reported leads thoroughly raised questions about the efficacy and impartiality of the investigation.In August the ODHAG filed a criminal complaint against the prosecutor and his subordinates. The lead prosecutor withdrew from the case in December and was replaced. On May 6, three armed, masked men murdered Luis Yat Zapeta, the acting mayor of Santa Cruz del Quiche, in his home. Yat had been instrumental in the removal in February of the municipality's elected mayor, Silverio Perez de Leon, on charges of corruption. The authorities arrested three suspects, including municipal treasurer Justo Lopez and former mayor Perez de Leon. The murder appears to have been carried out in revenge for Yat's role in removing Perez de Leon from office for corruption. A preliminary hearing in the case was held in late December, in which the court found sufficient evidence to bring the three detainees to trial. An arrest warrant against a fourth suspect remains outstanding. On May 20, the prosecutor for Retalhuleu, Silvia Jerez Romero de Herrera, was shot to death in her car; another Public Ministry official traveling with her was wounded. Jerez had worked on several sensitive cases, including those relating to the kidnaping and murder of Danita Gonzalez, the attempted exhumation of what was alleged to be Efrain Bamacaâs body, and several serious drug trafficking cases. On May 25, the authorities arrested two suspects in Jerez's murder, both members of the gang believed responsible for Danita Gonzalez's murder. They both escaped from prison in June; however, one was recaptured later. In August the Government began investigating five members of the Public Ministry for alleged ties to the gang. By September 1, the authorities had removed two of these officials from their positions. There were a number of reports during the year of alleged "social cleansing" operations. These typically consist of cases in which persons deemed socially undesirable (e.g., gang members, local delinquents, convicts released from prison) were found murdered in circumstances suggesting that the murder was planned and carried out by an organized group. MINUGUA investigated 13 possible cases of murders in social cleansing operations during the year. Eight confirmed cases of these murders took place in La Libertad, Peten, and apparently were perpetrated by a well- organized, trained, and armed group that had circulated a list of its intended victims. Although the PNC demonstrated an interest in investigating the murders, prosecutors reportedly accorded the case a low priority. Popular frustration with the inability of the Government to control crime, and of the courts to assure speedy justice, as well as a tradition of extrajudicial repression of crime during years of military rule, contributed to lynchings and mob attacks throughout the year. MINUGUA registered approximately 70 lynchings and attempted lynchings during the year, in which over 50 persons died. Generally, victims were killed by mobs, usually for property-related crimes. For example, on December 4, residents of a village near Campur, Alta Verapaz, captured, beat, tortured, and then burned alive four presumed members of a criminal gang. There was no evidence these mobs were incited for political reasons, although MINUGUA identified cases in which municipal authorities instigated attacks or in which they were otherwise involved. Most of the attacks took place in rural areas. The police, sometimes with the assistance of the military or volunteer firemen, were often successful in rescuing victims of mob attacks. The Government opened prosecutions against the instigators of some of the attacks. In May the Government achieved its first conviction in a lynching case when two defendants were sentenced to long prison terms for participating in a lynching in Momostenango. Convictions resulting in lengthy prison sentences followed in other lynching cases in August and December.
There was at least one credible report of a disappearance attributed to official forces. On February 8, National Police officers in La Union, Zacapa, arrested Francisco Gonzalez Vasquez and his companion for brawling with other persons. Although Gonzalez's companion, a minor, was released the same day, Gonzalez was not seen again. Witnesses reported hearing screams at the police station the night of February 8. After an internal investigation, the PN concluded that its officers in La Union were responsible for Gonzalez's disappearance. The PDH's office reported 18 complaints of forced disappearance during the year, compared with 30 in all of 1997 and 47 for all of 1996. MINUGUA reported one complaint of forced disappearance during the year, compared with three for all of 1997. The ODHAG reported no forced disappearances during the year. Disappearances in high-profile cases from recent years remained unresolved at year's end. Arnoldo Xi, an indigenous and peasant rights activist who reportedly was shot and abducted in March 1995 remained missing. The whereabouts of Lorenzo Quiej Pu, a human rights activist who disappeared in January 1994, also remained unknown. Also unsolved was the case of Juan Jose Cabrera (known as "Mincho"), the guerrilla commander captured in 1996 while taking part in a kidnaping, who has never reappeared. MINUGUA concluded that the Presidential Military Staff was responsible for his capture, but the media and critics of the Government accused them of covering up this finding in the interest of not disrupting the peace process. Likewise, there was no clarification of several late-1997 cases reported by MINUGUA in which persons believed to have been involved in kidnapings were captured forcibly by heavily armed and well-coordinated units that bore many of the characteristics of a clandestine security force. 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 allegedly were kidnaped in 1993 by guerrillas, also remained unresolved at year's end. Legal developments in a criminal case failed to shed any light on the fate of guerrilla leader Efrain Bamaca Velasquez, who disappeared following a March 1992 clash between army and URNG forces. At the last minute, private lawyers prevented a March 3 effort to exhume a body believed possibly to be Bamaca's; the lawyers were believed to represent military officers who may have been implicated in Bamaca's disappearance and death. From June 16 to 18, the IACHR held a hearing in a case against the Government regarding Bamaca's disappearance. At that hearing, the Government accepted partial responsibility, to the extent of the judicial system's inability to determine Bamaca's whereabouts. In November the IACHR held a further hearing in which six active duty military officers and the former Solicitor General testified. Their testimony reportedly failed to further clarify Bamaca's fate. Five retired military officers who had been summoned to the hearing failed to appear. A decision as to the Government's liability in the case, including a possible award of monetary damages, was pending.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution provides for the integrity and security of the person and prohibits physical or psychological torture of prisoners; however, there were credible reports of mistreatment by members of the security forces. These reports typically involved the use of excessive force during arrests or other police operations. The PDH's office reported two complaints of torture during the year, compared with one unconfirmed case in 1997. The ODHAG reported no cases of torture during the year, compared with no cases in 1997, four cases in 1996 and five cases in 1995. MINUGUA investigated nine complaints of torture, of which three have been confirmed to date. Some of the complaints investigated in 1998 may relate to acts committed in prior years. On February 3, two agents of the National Police arbitrarily detained and beat a university student when they discovered that he was a demobilized member of the URNG. The police authorities subsequently dismissed the two police officers responsible for the beating. Casa Alianza reported that police officers were believed to have beaten or otherwise abused three street children. In one case, the officers reportedly beat two children and then brought them to a Guatemala City jail, where they were detained temporarily. The officers were identified, and the matter was transferred to the Public Ministry for possible criminal action against the police officers. Through mid-December, Casa Alianza reported five murders of street children, none apparently by state agents. Casa Alianza and the PDH attribute a number of abuses of street children to drug traffickers, family members, gangs, and, in some cases, private security guards. Since November 1996, the courts have convicted five persons, including two police officers and one military officer, of abusing street children. There are at least three other pending cases arising out of abuses of street children. Reports of police use of excessive force in evictions were infrequent and lower than in the previous year. Landless peasants occupied a number of farms throughout the year in attempts to gain land. Although some of the invaders were armed, the occupations were generally peaceful. Because of violent confrontations in the past, the Government's policy was to secure an eviction order from a court, inform the occupiers of the coming eviction, and send in a lightly armed police contingent to end the occupation. The Ministry of Government carried out numerous evictions without incident during the year using this policy. Corruption continued to be a problem, and there were credible allegations of involvement by, as well as the arrest of, individual police officers for criminal activity, including kidnaping. However, police authorities appeared to be taking stronger actions against officers found to have engaged in illegal activities, referring some such violations to the criminal justice system rather than simply imposing administrative punishments. The Government continued training and fielding a new National Civilian Police to replace the existing National Police; during the year, members of both the PNC and the PN were on duty. Within Guatemala City, the PNC fully replaced the PN. Elsewhere, PNC officers are deployed in some communities; in others, the PN have yet to be demobilized and replaced by the PNC. All PNC members must meet minimum education requirements and pass an entrance examination. PN staff wishing to integrate into the PNC have to complete successfully a 3-month retraining course. There are also screening procedures in place to weed out suspected human rights violators and agents involved in criminal activities. New recruits must complete a 6-month training course before entering on duty. The training course, developed with the assistance of MINUGUA, foreign countries, and international organizations, includes extensive human rights components. However, some observers complained that the retraining course was insufficiently rigorous and that relatively few members of the PN were screened out during retraining, ensuring the incorporation of some poorly qualified PN members into the new PNC. Pursuant to the Peace Accords, former members of the military were eligible to apply for positions in the PNC but were required to apply like other civilians and complete the 6-month training course required of all civilian applicants. However, the Government hired some former members of the military and of the former mobile military police into the ranks of the PNC upon the completion of only the shorter course intended for current members of the PN. The former members of the mobile military police were not subjected to a competitive selection process but were screened carefully before they were allowed to enter the program. As of early November, the new PNC included approximately 8,500 members, including some administrative personnel; approximately 2,100 PN officers also remained on duty. Although government plans call for 20,000 PNC members to be on duty around the country by the end of 1999, resource constraints may limit that number to about 18,000 through the year 2000. Strong anecdotal evidence indicated an improvement in the probity and effectiveness of the PNC in comparison with the PN. Other reports suggested that crime rates declined in some municipalities where the PNC was deployed. Some local government officials expressed eagerness for the PNC to begin operations in their communities. As of midyear, the ODHAG reported receiving fewer complaints against PNC personnel than had been received in prior years against members of the PN. The PNC Academy accepted some 60 police candidates from indigenous communities in the Ixil region÷-approximately 30 of whom graduated on their first attempt--to ensure that PNC personnel in those communities are proficient in the local language and are able to operate effectively in those communities. The Government planned to implement this practice in other indigenous communities but had not yet done so. In the criminal case arising out of the 1989 attack on U.S. citizen Sister Dianna Ortiz, the authorities stated that in order to accommodate Sister Dianna's reluctance to return to Guatemala to testify, they had sent her written interrogatories. These questions would permit Sister Dianna to provide testimony before a judge in the United States for use in the criminal proceedings. Prison conditions are harsh but not life threatening. The prison system suffers from a serious lack of resources, particularly in the areas of prison security and medical facilities. The Government reports that prison capacity nationwide is 7,100 persons, and there were approximately 7,600 inmates at midyear. Many institutions were overcrowded; at midyear, the Preventive Detention Center for Men in Guatemala City was approximately 40 percent over its designed capacity. Prisoners also complain of inadequate food. Corruption--especially drug-related--is widespread. Prison officials report frequent incidents of escapes and other manifestations of prisoner unrest, and the frequency of jailbreaks became a matter of serious public debate. In July the Government appointed a high-level commission to consider prison reforms and enhanced prison security. Female prisoners are held in facilities separate from men, and minor children are held in other detention facilities. The Government permits access to prisons by family members. The Government permits prison visits by independent human rights monitors.
d. Arbitrary Arrest, Detention, or Exile
Despite legal safeguards, there were frequent credible reports of arrests without judicial warrants, illegal detention, and failure to adhere to prescribed time limits in legal proceedings. 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. Once a suspect has been arraigned, the prosecutor generally has 3 months to complete his investigation and file his case. The law also provides for bail and access to lawyers. There are no comprehensive, 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. The ODHAG reported seven complaints of arbitrary detention during the year, all of which it was able to confirm. The PDH reported 18 complaints of illegal detention during the year. MINUGUA investigated some 68 complaints of illegal or arbitrary detention during the year, and had confirmed 40 at year's end (also see Section 1.e.). Some of the complaints investigated by MINUGUA may have related to detentions carried out in prior years. Reliable estimates suggest that 70 percent of all those in prison are awaiting trial. Lengthy pretrial detention is not permitted; while the law sets a limit of 3 months, longer detentions still occur routinely. Prisoners often are detained past their legal trial or release dates. Prisoners sometimes are not released in a timely fashion after completing their sentences due to the failure of judges to issue the necessary court order. In the wake of Hurricane Mitch, President Arzu decreed a 30-day state of public emergency, ratified by the Congress, which resulted in the suspension of certain constitutional rights, enabling law enforcement officials to detain persons without a judicial warrant or without discovering them in the act of committing a crime. On November 30, in a controversial move that was questioned by many observers, including MINUGUA, the Government extended the state of emergency for a second 30-day period. Notwithstanding the temporary suspension of certain constitutional provisions, as of mid-December, credible cases of abuse of authority arising out of the suspension had not been reported. The Constitution prohibits exile, and it is not practiced.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, although independent, the judicial system often fails to provide fair trials due to inefficiency, insufficient funds, and corruption and intimidation of judges, prosecutors and witnesses. The courts' response to human rights violations, as well as to general criminal activity, has been inadequate, although during the year the Government achieved convictions in several important cases involving past human rights violations. Members of the judiciary and prosecutors continued to receive threats aimed at influencing current decisions or as reprisals for past decisions. The ODHAG reported eight complaints of threats against judicial officials through May. In June unknown assailants fired shots at the house and automobile of an assistant prosecutor in Guatemala City. A prosecutor in Retalhuleu resigned on July 1, due to fear of reprisals by the criminal gang believed responsible for the May murder of prosecutor Silvia Jerez Romero de Herrera (see Section 1.a.). A court in Amatitlan closed temporarily in July after threats were made against staff members. In June and August, several prosecutors working on high-profile fraud and kidnaping cases received death threats. Subsequent to Jerez's murder, prosecutors from around the country threatened to strike if they were not provided with security. The Government sought funds to place security guards at public prosecutors' offices. A small number of prosecutors handling high-profile cases have been assigned bodyguards. 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 Congress elects Supreme Court and appellate court magistrates from lists prepared by panels comprised of active magistrates, representatives of the bar association, and law school deans. The Criminal Procedures Code, which came into effect in mid-1994, provides for the presumption of innocence, the right to be present at trial, the right to counsel, plea bargaining, and the possibility of release on bail. Trials are public and verdicts are rendered by three-judge panels. The code also provides for language interpretation for those who require it (see Section 5). The Public Ministry, which is independent from the executive branch, may initiate criminal proceedings on its own or in response to a complaint. Private parties may participate in the prosecution of criminal cases as cocomplaintants. Lengthy investigations and frequent procedural motions by both defense and prosecution often lead to excessively long pretrial detention (also see Section 1.d.). Inefficiency and corruption in the courts, Public Ministry, and police continue to impede the proper functioning of the judicial system and undermine the right to due process. The Supreme Court continued to seek the suspension of judges--and the institution of criminal investigations--for improprieties or irregularities in cases under their jurisdiction. It is difficult to attract qualified personnel to the courts because of the low salaries offered. In cooperation with foreign donors, the Government is undertaking major efforts to reform the judicial system. In September 1997, the Government formed an interagency mechanism to coordinate reform efforts among the judicial branch, the Public Ministry, the Ministry of Government, and the Public Defenders Service, the four principal governmental institutions involved in the administration of justice. During the year, the coordinating body met to draft a unified policy on crime for implementation by these institutions. Pursuant to a pilot program, in January five community courts were created in primarily indigenous, rural areas to decentralize the administration of justice and incorporate customary Mayan law for minor offenses. In July a new public defender service came into effect with the goal of providing effective legal representation to indigent defendants, who often had been denied effective representation due to the shortage of public defenders. In August the judiciary began implementing a plan to computerize case management, in order to improve judicial efficiency, prevent the loss of case files, and decrease the opportunity for fraud in court records. The Public Ministry has been hampered in its efforts to investigate crimes and prosecute offenders by inadequate training and equipment and insufficient numbers of investigators. In addition, prosecutors are susceptible to intimidation and corruption. 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 accusations persist that the authorities sometimes disregard these provisions. Elements of the security forces reportedly continue to monitor private communications. Press reports continued to accuse the Presidential Military Staff of telephone tapping. The military has honored the June 1994 presidential order to suspend all conscription, including forced recruitment.
Section 2 Respect for Civil Liberties, Including:
a. Freedom of Speech and Press
The Constitution provides for freedom of expression, and the Government generally respected this right in practice. There were some reports of self-censorship. In addition to regular and open criticism of government policies, the media publicizes communiques from human rights organizations, unions, and others opposed to the Government or its policies. The press criticizes the military and other powerful sectors. For example, the press reported a number of allegations by politicians and others that the Presidential Military Staff continues to monitor private telephone conversations (see Section 1.f.). The press also published stories on reputed drug traffickers and on official corruption. In July the military punished Colonel Otto Noack with 30 days' house arrest for stating in an unauthorized interview with a foreign radio station that the military should admit that during the internal conflict, both it and the guerrillas had committed abuses. Some observers in the press and in human rights groups contended that the military's punishment of Colonel Noack violated his right to free speech, although his unauthorized interview violated military regulations. Some journalists claim that in a few particularly sensitive cases government pressure and fears of reprisal result in self-censorship and limits on investigative reporting. There were allegations early in the year that the Government or those purporting to speak on its behalf sought to discourage advertisers from buying space or time in media outlets deemed hostile to the Government. On March 30, Human Rights Ombudsman Julio Arango Escobar issued a ruling criticizing President Arzu for restricting press freedom by allegedly trying to stifle criticism from the newsweekly Cronica. President Arzu successfully petitioned the Supreme Court to issue a stay of Arango's resolution, on the basis that Arango had not solicited testimony from the President, as required by the statutes governing the Ombudsman's office. This stay subsequently was upheld by the Constitutional Court. The Government prepares public information programs, which the radio and television stations are required to broadcast. Opposition parties have no such access to the media but can purchase broadcast time. The Supreme Electoral Tribunal, in a controversial ruling, characterized as a violation of the electoral law the Government's use of its nightly information program during political campaigns to publicize the Government's accomplishments. A section of the 1996 Telecommunications Law sought to rationalize the licensing of radio frequencies; an unintended effect left a number of tiny local and community-owned stations operating without legal authority. These stations broadcast cultural, educational, and religious programming to rural communities with large indigenous populations. Although the authorities have the right to close stations that have not complied with the new requirements, none have been shut down. Some station owners believe that these requirements restrict their right to free expression. The PDH reported one complaint of a threat against a journalist during the year. The ODHAG reported 14 complaints of threats against journalists, although it was unclear how many of these threats related to the exercise of their profession. MINUGUA reported two complaints of threats during the year. In April unknown assailants threw two grenades at the home of Amilcar Nuila, a prominent journalist based in Coban. Although the house was damaged, no injuries resulted from the attack; the motive for the attack remains unclear. The criminal case in the June 1997 murder of journalist Jorge Luis Marroquin Sagastume has not yet gone to trial. The alleged killers are both under arrest. However, the victim's relatives have been unsuccessful in having charges filed against the crime's alleged intellectual author, Manuel Ohajaca, the mayor of Jocotan. The Constitution provides for academic freedom. There were no reports of professors or students being subjected to violence or intimidation because of their academic work.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for the right of peaceful assembly, and the Government respects this right in practice. Peaceful demonstrations were common, and demonstrators sometimes occupied government institutions. In all these cases, the police acted with restraint, and the authorities negotiated a peaceful departure of the demonstrators. The Constitution provides for freedom of association, and the Government respects this right in practice. The Government did not interfere with political associations. However, organizations must obtain legal status, a cumbersome and expensive procedure. The URNG and several NGO's have alleged that this law particularly disadvantages organizations representing marginalized social sectors, including indigenous groups. In December 1997, the Congress enacted a statute that sought to provide a less cumbersome mechanism for registering civil associations. Regulations implementing this statute were adopted in late July.
c. Freedom of Religion
The Constitution provides for religious freedom, and the Government respects this right in practice.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government generally respects them in practice. In October President Arzu temporarily suspended constitutional provisions protecting freedom of movement (see Section 1.d.). The Government grants refugee and asylee status in accordance with the provisions of the 1951 U.N. Convention Relating to the Status of Refugees and its 1967 Protocol. The Government cooperates with the office of the United Nations High Commissioner for Refugees (UNHCR) and other humanitarian organizations in assisting refugees from other countries. The issue of the provision of first asylum did not arise. There were no reports of the forced return of persons to countries where they feared persecution. Voluntary repatriation of refugees from Mexico continued. The UNHCR estimated that approximately 4,000 refugees returned, bringing the total to approximately 40,000 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 of age 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 eight free elections. International observers concluded that both the 1995 general elections and the 1996 runoff presidential election were free and fair. Voters elect the 80-member Congress every 4 years using a system of proportional representation based on population, with deputies elected both from districts and from a nationwide list. Congress has 64 deputies from districts and 16 from the national list. The 1995 elections involved 24 political parties; 7 won seats in the legislature. Congress can and does act independently of the executive, but fragmentation along party lines and a weak support structure result in a legislature that is relatively weak. The former URNG guerrillas met all legal requirements for qualification as a political party and in December were registered formally; they planned to compete in the 1999 general elections. In municipal elections held in 30 municipalities on June 8, the ruling PAN party won 22 of the races. Although most of the contests appeared to be fair and free of fraud, the Board of Elections found sufficient anomalies in the voting in Chinautla to annul the election results in that municipality and call a new election. Prior to the election, municipal employees improperly issued several thousand civil identification cards, enabling large numbers of ineligible persons to vote. The Supreme Electoral Tribunal upheld the Board of Election's decision, representing the first time in the country's history that an election had been declared invalid. The repeat election, held on September 20, produced results similar to the first election and independent observers, including MINUGUA, judged it to be free and fair. The Government devoted considerable effort in 1998 to implementation of the Peace Accords. In October Congress approved a package of 47 constitutional reforms, including almost all of those contemplated by the 1996 Peace Accords. A national referendum to approve the amendments is expected to be held in 1999. The amendments include provisions to recognize, respect and protect indigenous languages and traditional customs, professionalize the judicial service, give civilian courts jurisdiction over military personnel, and define the army as an apolitical organization. The 1997 demobilization of the URNG guerrillas and the restructuring and downsizing of the military helped create a more favorable human rights climate. However, although important progress was made, substantial problems remain. There are no legal impediments to women's participation in politics, but women are underrepresented in the political arena. Nevertheless, women hold some prominent political positions. Voters elected 11 women to Congress; women hold 2 seats on the Supreme Court; and 1 on the Constitutional Court. Until January a woman served as President of Congress; she subsequently became Minister of Education. The Constitution provides for equal rights for indigenous people. Some have attained high positions as judges and government officials, including eight members of Congress. Twelve of the 30 mayors elected in the municipal elections are indigenous. Nonetheless, they still are heavily underrepresented in politics due to limited educational opportunity and pervasive discrimination (see Section 5). There are no indigenous members of the Cabinet.
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. Numerous domestic and international groups investigate and report freely on human rights issues. Senior government officials also met with numerous foreign government officials and international human rights monitors. While many international human rights organizations and their workers do not enjoy formal legal status, they continue to operate freely and openly. During the year, a number of NGOâs credibly reported receiving threats or being targeted with acts of intimidation by unidentified persons. Human rights activists and jurists working on cases relating to human rights abuses, drug trafficking, and other sensitive matters periodically reported receiving threats from unknown persons. For example, between May and July, CONAVIGUA, an NGO representing widows of victims of the internal conflict, reported receiving a number of threatening telephone calls, and several of its members reported having been watched, followed, or harassed. On June 22, a group of armed men attacked and robbed a group of women and children as they left a meeting of the refugee womenâs organization Mama Maquin in a remote community in the Ixcan. Although the motive for this attack remained unclear, the victims believed that it related to their membership in the organization. On April 24, the Archbishop's Human Rights Office presented the first two volumes of its "Recovery of Historical Memory" project, which utilizes testimony of witnesses and other research to document the abuses of the internal conflict. The project was begun in 1994, in part to provide input to the CEH, and focused on rural communities. The first volume of the report addresses the effects of the violence, including massacres, rapes, and exile. The second volume describes the military's use of disappearances, torture, and massacres as calculated counterinsurgency techniques and outlines the intelligence organizations created to provide information on targets. The third volume presents the history of the conflict, and the fourth lists known victims of the conflict. The Human Rights Ombudsman is elected by and reports to Congress, and monitors the rights provided for by the Constitution. The PDH's rulings do not have the force of law. The PDH often rules on controversial issues not normally considered human rights topics, such as bus fares and electricity rates. The Ombudsman, Julio Arango Escobar, operates with a large degree of independence from other branches of the Government. Relations between the Ombudsmanâs office and the executive branch were strained, in part by Arangoâs ruling against the President in the Cronica case (see Section 2.a.). In March President Arzu won a court stay of Ombudsman's resolution charging him with violating the freedom of the press. Arango complained that the Congress neither funded his office adequately nor implemented his recommendations on human rights. The office's lack of funding limited the possibility of developing adequate investigative capabilities. Upon the expiration of MINUGUA's mandate in 2000, the PDH is to take over MINUGUA's human rights verification function. The President's Commission on Human Rights (COPREDEH) actively sought to forge a responsive and cooperative relationship with both domestic and international human rights monitors, often acting as a liaison between such groups and other branches of the Government. COPREDEH sought to negotiate amicable settlements in many cases of past human rights violations pending before organs of the inter-American human rights system, rather than litigating such cases. The Historical Clarification Commission, created by the Peace Accords in an effort to shed light on human rights abuses during past decades, is scheduled to complete its mandate on January 31, 1999. The CEH is expected to produce a study of the causes, course, and consequences of the internal conflict. Various human rights groups gave the CEH extensive documentation of violations and the CEH sought additional information on its own. The CEH has received substantial funding from the Government, as well as from international donors. Members of the CEH have criticized the military, and to a lesser extent the Government, for not delivering all of the requested documentation that they believe exists. The military asserts that it has provided all existing documentation that was requested. The CEH has no mandate to bring to justice those responsible for abuses. MINUGUA maintains a staff of approximately 400 with regional offices to monitor implementation of the human rights provisions of the Peace Accords and to strengthen democratic institutions. MINUGUA states that the Government generally cooperated with its investigations but cited occasional isolated incidents in which government officials or institutions had obstructed its efforts. The IACHR, which conducted a human rights observation visit in August, reported that the Government cooperated with its mission.
Section 5 Discrimination Based on Race, Sex, Religion, Disability, Language or Social Status
The Constitution states that all persons are free and equal in dignity and rights, and that the State must protect the life, liberty, justice, security, peace, and development of all citizens. In practice, however, the Government is frequently unable to enforce these provisions, due to inadequate resources, corruption, and a dysfunctional judicial system.
The PDH reported that violence against women, including domestic violence, remains common among all social classes. The 1996 Law on Intrafamily Violence provided that the Public Ministry, the national police, family courts, legal clinics, and the PDH can receive complaints of domestic violence. Domestic violence is defined as "whatever action or omission by direct or indirect manner causes damage, or physical, sexual, psychological or patrimonial suffering" to a person within the family group. The law provides for issuing restraining orders against alleged aggressors and obligates the national police to intervene in situations of domestic violence. Victims rarely report criminal sexual violence, although the number of complaints of such offenses recently has shown an upward trend. Relatively few rape cases go to court, in large part because police have little training or investigative capacity for such cases, and because many rape victims are reluctant to report such crimes. The law allows a rapist to be exonerated if the victim is between the ages of 12 and 16, if she consented to sex, if she agrees to marry the man, and if the Public Ministry grants its approval of the marriage. The PDH reported that complaints of spousal abuse have continued to rise due to increased nationwide educational programs, which have encouraged women to seek assistance. At year's end, the PDH reported approximately 2,600 complaints of domestic violence nationwide. Representative Nineth Montenegro reported to the Prensa Libre newspaper that 1,700 cases of violence against women were reported to the PNC and the family courts between January and August. Judges may issue an injunction against an abusive spouse or companion, and the police are charged with enforcing such injunctions. There is also a Women's Rights Department of the PDH, and various NGOâs provide medical and legal assistance and information on family planning. The PDH's Women's Rights Department drafted proposed regulations to implement the provision of the Law on Intrafamily Violence establishing a National Commission for the Prevention of Domestic Violence. At year's end, such regulations had not yet been adopted. The Constitution asserts the principle of equality between the sexes. Nonetheless, in practice, women face job discrimination and on average receive significantly lower pay than men. They are employed primarily 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. Women may own, manage, and inherit property on an equal basis with men. The National Women's Forum, inaugurated in November 1997, devoted its first year to establishing its local and regional network and to developing relationships with organizations interested in promoting common goals. The general purpose of the forum is to broaden the participation of women in the economic and social development of the country. Local women's groups have elected representatives to the departmental and national levels. In addition to representatives from the departments, the national assembly includes representatives of the various Mayan linguistic communities. The forum discussed improved access for women to education, health care, and credit. The forum serves as a channel for women to make their opinions known and to bring about changes in law and administrative practices to overcome discrimination and promote a more active role for women in society.
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 in the past has not devoted sufficient resources to ensure adequate educational and health services for children. Under the terms of the Peace Accords, the Government budgeted substantially more funding for health and education in 1998, almost double the 1995 spending level. The abuse of street children (see Section 1.c.) is a serious problem in major cities. Estimates of the number of street children range between 1,500 and 5,000, with the majority of these youths concentrated in Guatemala City. Criminals--reported to include private security guards and corrupt police or military personnel--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 alleviate the problem. The Government created a Permanent Commission for Children and Youth in 1996 to investigate cases of mistreatment. Implementation of the new Minors' Code, which would offer greater legal protection to children, was deferred until March 1, 2000 due to strong political opposition from certain sectors. Opponents, including religious leaders, argued that the code derogated parental rights and threatened the integrity of the family. The Presidential Human Rights Commission continued 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.
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 the disabled. However, in 1996 Congress passed a law mandating equal access to public facilities, prohibiting discrimination based on disability, and providing other legal protections. The law defines a disabled person as one whose physical, mental, and emotional deficiencies limit performance of normal activities. It stipulates equal opportunity for disabled persons in health, education, work, recreation, sports, and cultural activities and provides that all disabled persons receive the benefits of labor laws, social security, and have the right to work. The new law also establishes equal education opportunities, the requirement that buildings meet access codes, and the right to equal pay. Implementation of the new law has been slow. However, a National Council for the Disabled, composed of representatives of concerned government ministries and agencies, was established and as of September 1, was meeting regularly to formulate regulations needed to implement the legislation. Indigenous People The Constitution states that the country 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. The Government is obliged to consult with its indigenous population before enacting any legislation that could affect it. Further, International Labor Organization (ILO) Convention 169 provides a legal basis for recognition of indigenous legal practices and certain historic claims, along with renewed respect for indigenous culture and language. Indigenous people constitute over one-half the population but remain largely outside of the country's political, economic, social, and cultural mainstream. Indigenous people were the most common victims of extrajudicial killings and other serious human rights abuses during the internal conflict. The commissions established to discuss the implementation of constitutional provisions relating to indigenous rights met during the year to formulate recommendations to the Government regarding protection of indigenous culture, languages, traditions, lands, and sacred sites. Indigenous people are organizing into interest groups to promote bilingual education, women's rights, and community development. The Government also is devoting increased resources to bilingual education. 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 current officials speak any of the 21 indigenous languages. In March the Indigenous Languages Officialization Commission issued its report, in which it recommended that a variety of public services be provided in the four most widely-spoken indigenous languages (Kichee, Qeqchi, Mam, and Kaqchikel), with a lesser degree of services provided in less widely spoken indigenous languages. Indigenous persons arrested for crimes are often at a disadvantage due to their limited comprehension of Spanish. The Criminal Procedures Code states that the courts must provide interpretation for anyone requiring such services during criminal proceedings. There are 67 interpreters at all levels of the legal system, from the police to the formal courts, to assure non-Spanish speakers the means to bring complaints, resolve conflicts, and provide testimony. Interpreters are concentrated in former conflict areas of the country; more interpreters were in training. In January five community courts were created in primarily indigenous, rural areas to decentralize justice and incorporate customary Mayan law for minor offenses.
Section 6 Worker Rights
a. The Right of Association
The Constitution and the Labor Code provide workers with 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 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 the statutes. All workers have the right to form or join unions, including public sector employees, with the exception of members of the security forces. At most, 8 percent of the work force, or 250,000 of 3.1 million workers, are members of labor organizations. The 1,500 registered unions and nearly 450 company-sponsored "solidarity organizations" in the country are independent of government and political party domination. Labor Code amendments have simplified the process for unions to obtain legal status. The Minister of Labor further revised the administrative process in May 1996, reducing the number of steps within the Ministry for consideration of union applications and establishing strict timetables; the time for the procedure was reduced to 20 days from 60. The Labor Ministry also has initiated a program to assist unions with their applications, and the Minister has warned officials that noncompliance with the timetable could lead to dismissal of those responsible for the delay. These new regulations have accelerated the approval procedure and largely eliminated the backlog of union applications. The Labor Ministry granted legal status to 276 unions during the year. The 20-day processing rule was not implemented in one high profile case involving banana workers attempting to organize in the eastern part of the country. Early in the year, the workers on two banana farms owned by BANDEGUA (Del Monte Fresh Produce) but managed by a private individual tried to unionize. While both BANDEGUA and SITRABI (the union that represents 3,500 workers on BANDEGUA owned and managed farms) were willing to negotiate, the individual manager resisted and went so far as to bribe a local inspector to alter records in the case. The labor inspector was eventually fired, and at year's end the farms in question were being transferred to a new manager. The Minister of Labor personally sought to intervene in this particular dispute but his efforts to achieve a negotiated settlement were thwarted by management. Workers have the right to strike, but Labor Code procedures for having a strike recognized as legal are cumbersome. Labor organizers criticize the requirement that two-thirds of the work force 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 that it considers seriously harmful to the national economy. In 1996 Congress approved a law that further restricted the right to strike for workers employed in essential public services. Unions strongly opposed the law, and some members of Congress called the measure unconstitutional and contrary to commitments to the ILO. The law deems such services as urban and interurban transport, mail, and telegraph as essential; the Constitutional Court reviewed this law in 1996 and declared it constitutional in January 1997. Although the public sector historically has been the scene of frequent strikes, almost always called without legal authorization, there were no public sector strikes during the year. (Several were threatened.) The Government declared illegal a 1996 strike by judicial workers; the workers eventually resumed their duties and were paid for the time that they were on strike, a common outcome of such strikes. Previously, the Government made no effort to intervene on the basis of a strike's illegality. The new essential services strike legislation permits the Government to act more forcefully but has not been tested. Employers may suspend workers or fire them for absence without leave if the authorities have not approved their strike legally. The strike regulation law calls for binding arbitration if an impasse has been reached after 30 days of negotiations. The law protects workers from retribution for forming and participating in trade union activities, but enforcement of these provisions is spotty. While an increasing number of employers accept unionization, many routinely seek to circumvent labor code provisions in order to resist union activities, which they view as historically confrontational and disruptive. An ineffective legal system and inadequate penalties for violations have hindered enforcement of the right to form unions and participate in trade union activities. While workers illegally fired for union activity should, under the Labor Code, be reinstated within 24 hours, employers often file a series of appeals, or simply defy judicial orders of reinstatement. Penalties for defying such orders were increased somewhat in the 1992 Labor Code reform and again in Decree 35-98, which went into effect in June. Trade union leaders and members did not suffer labor-related violence. Some public sector union leaders reported receiving threats against themselves and their families. Investigations continued into previous years' cases of violence, including murder, against various labor leaders, although some of these investigations appear to have been suspended for lack of evidence. An active "solidarity" movement claims approximately 170,000 members in nearly 450 companies. Unions may operate legally in workplaces that have solidarity associations, and workers have the right to choose between the two or to belong to both. The Government views these associations as civic organizations that need not interfere with the functioning of trade unions. The amended Labor Code stipulates very clearly that trade unions have an exclusive right to bargain collectively over work conditions on behalf of workers. However, unions charge that management promotes solidarity associations to avoid the formation of trade unions or to compete with 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 unions. At the request of trade union leaders, the independent Human Rights Ombudsman, through its office for economic and social issues, receives complaints related to trade union activities. Union leaders and workers filed occasional complaints with the PDH during the year, and the Ombudsman has spoken out in public statements about labor conditions in various sectors of the economy. The PDH can investigate union complaints and issue a statement, but the office has no enforcement powers beyond attempting to ameliorate the situation through publicity and moral persuasion. Unions may and do form federations and confederations and affiliate with international organizations.
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 legally cannot dismiss workers for helping to form 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 within 24 hours 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. Despite some improvements, labor courts responsible for enforcing labor laws continued to be generally ineffective. Efforts to restructure and modernize the labor court system have made some headway. In addition to 7 labor courts in the capital, an additional 13 have been established and are functioning in other parts of the country. An additional 9 courts deal with labor issues as part of their jurisdiction. Nevertheless, a heavy backlog of labor cases continues to clog the courts due to inefficiency and lack of resources, especially competent judges. There is only spotty enforcement of the Labor Code, due to the scarcity of labor inspectors, continuing though declining corruption, the lack of adequate training and resources, and structural weaknesses in the labor court system. However, enforcement is improving as new labor inspectors complete training and begin work at the 21 branch offices outside the capital, allowing the Ministry of Labor to increase significantly its rate of inspections and to fire some of the incompetent or corrupt inspectors. The Ministry continued a series of inspections at farms and plantations in rural areas, and cited those employers who were not paying the minimum wage. The Ministry of Labor reorganized its 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 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 female workers), including providing some documents in indigenous languages. In an effort to improve enforcement of the Labor Code outside the capital, the Ministry of Labor has begun to decentralize its operations, opening a branch office in Coban, Alta Verapaz, in addition to the 21 labor inspector branch offices. Labor laws and regulations apply throughout the country, including in the few export processing zones (EPZâs). The laws governing the EPZâs are not discriminatory on the subject of organizing trade unions or collective bargaining. Union leaders often blame employer pressures and their unofficially restricted access to the EPZâs for their virtual inability to organize workers in these zones. While labor standards in the EPZâs are no different from those found outside the zones, actual working conditions are often better.
c. Prohibition of Forced or Compulsory Labor
The Constitution bars forced or compulsory labor, and the practice does not exist. The law does not specifically prohibit forced or bonded labor by children, but they are covered by the general statute.
d. Status of Child Labor Practices and Minimum Age for Employment
The Constitution bars employment of minors under the age of 14 without written permission from the Ministry of Labor. However, children below this age regularly are employed in the informal and agricultural sectors, usually in small family enterprises. The law prohibits minors from night work and extra hours (the legal workday for minors under the age of 14 is 6 hours; for minors 14 to 17 years of age, it is 7 hours), from working in establishments where alcoholic beverages are served, or from working in unhealthy or dangerous conditions, but children are employed in the illegal cottage-based fireworks industry. Laws governing the employment of minors are not enforced effectively, due to the shortage of qualified labor inspectors and structural weaknesses in the labor court system. Approximately 4,000 minors have permission from the Labor Ministry to work legally, but thousands of others who work without legal permission are open to exploitation. They generally receive no social benefits, social insurance, vacations, or severance pay and earn below-minimum salaries. The Ministry has actively sought to reduce the number of permits, and it issued approximately 1,200 in the first 10 months of the year. The Labor Ministry has a program to educate minors, their parents, and employers on the rights of minors in the labor market. However, economic necessity forces most families to have their children seek some type of employment to supplement family income, especially in rural and indigenous communities. Children who work generally do so in family enterprises. There is no forced or bonded labor of children (see Section 6.c.). There are no export industries in which child labor is a significant factor. The Constitution provides for compulsory education for all children up 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 bipartite 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 most recent minimum wage increase took effect in December 1997. The basic rate is $3.03 (19.71 quetzals) for industrial workers for an 8-hour workday, including a required hourly bonus, and is $2.75 (17.86 quetzals) per day plus mandatory productivity bonuses for agricultural workers. The minimum wage is not sufficient to provide a decent standard of living for a worker and family. According to the United Nations Development Program, at least 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 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 sometimes are forced to work overtime, often without premium pay, in order to meet work requirements. Labor inspectors report uncovering numerous instances of such abuses, but the lack of stiff fines or strong regulatory sanctions, as well as 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. 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. 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.