U.S. Department of State Country Report on Human Rights Practices 2000 - Guatemala
|Publisher||United States Department of State|
|Publication Date||26 February 2001|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2000 - Guatemala , 26 February 2001, available at: http://www.refworld.org/docid/3ae6aaa44.html [accessed 28 May 2016]|
|Comments||This report is submitted to the Congress by the Department of State in compliance with sections 116(d) and 502(b) of the Foreign Assistance Act of 1961 (FAA), as amended, and section 504 of the Trade Act of 1974, as amended. The law provides that the Secretary of State shall transmit to the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate, by February 25 "a full and complete report regarding the status of internationally recognized human rights, within the meaning of subsection (A) in countries that receive assistance under this part, and (B) in all other foreign countries which are members of the United Nations and which are not otherwise the subject of a human rights report under this Act." We have also included reports on several countries that do not fall into the categories established by these statutes and that thus are not covered by the congressional requirement.|
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. On January 14, Guatemalan Republican Front (FRG) candidate Alfonso Portillo replaced President Alvaro Arzu of the National Advancement Party (PAN), following a free and fair December 1999 runoff election. The FRG also holds a majority (63 seats) in the 113-member Congress. Despite significant pledges, the Portillo administration took only limited steps to implement the Peace Accords that the Government concluded with the Guatemalan National Revolutionary Unity (URNG) guerrillas in 1996. The judiciary is independent; however, it suffers from inefficiency, intimidation, and corruption.
The Minister of Interior 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 some members of the predecessor National Police (PN) remained on duty, and awaited mandated training to become PNC officers. There are no active members of the military in the police command structure, but for the past 3 years, the Government has ordered the army to support the police temporarily in response to an ongoing nationwide wave of violent crime. On March 21, Congress enacted a law that enabled the Government to continue this practice. Under the new law, military personnel were not subordinated clearly to police control during joint patrols or operations; however, in practice army units generally were subordinated to police control in situations such as PNC road checkpoints, security deployments around prisons, and deployments in response to reported lynchings. The Constitution requires the Minister of Defense to be either a colonel or a general in the military. On January 14, a bill was submitted that would enable the President to appoint a civilian as Minister of Defense; in June Congress asked the Constitutional Court to determine the constitutionality of the bill. On October 3, the Court ruled that it would be unconstitutional for the President, as Commander in Chief, to name a civilian as the Minister of Defense, with the rank of assimilated general. The President has been slow to carry out his commitment to dissolve the Presidential Military Staff (EMP) and to have its functions taken over by a civilian agency. On October 13, Interior Minister Byron Barrientos announced the creation of a citizen security brigade in Santiago Sacatepequez as a pilot project that may be extended to other parts of the country. Some members of the security forces committed human rights abuses.
The mostly agricultural-based, private sector-dominated economy grew by approximately 3 percent during the year. Coffee, sugar, and bananas are the leading exports, but tourism, textiles, and apparel assembly are key nontraditional export industries. According to a study by the Ministry of Agriculture, 4 percent of producers control 80 percent of the land. About 40 percent of the work force are engaged in some form of agriculture, and subsistence agriculture is common in rural areas. According to the U.N. Development Program (UNDP), between 50 and 60 percent of the population depends on subsistence farming. Officially, inflation was about 5.5 percent during the year, although most observers acknowledge that the official price index does not measure accurately actual price movements. There is a marked disparity in income distribution, and poverty is pervasive, particularly in the large indigenous community. Approximately 83 percent of citizens live in poverty; this figure rises to 90 percent among the indigenous population. According to the UNDP, 59 percent of the population live in extreme poverty. Combined unemployment and underemployment was estimated at 46 percent. Per capita gross domestic product was approximately $1,600 during the year. Remittances from citizens living abroad continue to grow as a major source of foreign currency.
The Government generally respects the human rights of its citizens in many areas; despite improvements in some areas, serious problems remain in others. Some police officers committed extrajudicial killings. The investigation of the 1998 murder of Catholic bishop and human rights activist Juan Gerardi Conedera neared conclusion, and five defendants, including an army captain, a retired army colonel, and a former EMP specialist, were scheduled to stand trial. In May a nongovernmental organization (NGO) acting as legal representative for 10 communities whose inhabitants were massacred by government forces in the early 1980's filed a criminal suit against the high command of the regime of former President Fernando Romeo Lucas Garcia, alleging genocide and other crimes. There was one credible report of forced disappearance attributed to the police. There were credible reports that some police tortured, abused, and mistreated suspects and detainees. Despite greater numbers of police officers on duty throughout the country, and less public apprehension about filing complaints against the police, the total number of such complaints remained roughly the same as the previous year. Arrests and administrative sanctions against police officers remained high. In May the Secretariat for Strategic Analysis (SAE), the President's Peace-Accords-mandated civilian think tank, announced that it had discovered a database containing the names and other personal information of over 650,000 persons given to the SAE by Military Intelligence; the database appeared to have been compiled several years earlier. In June an NGO released a two-volume publication about the army and its conduct, personnel, and organization during the internal conflict. Prison conditions remained harsh. Arbitrary arrest and detention and lengthy pretrial detention continued to be problems. Judges and other law enforcement officials are subject to intimidation and corruption, and the inefficient judicial system frequently is unable to ensure fair trials and due process. Efforts to reform the judiciary continued; however, the climate of impunity is a serious problem. The Government achieved convictions in a few important cases involving past human rights violations; however, more often cases remained pending for lengthy periods in the courts as defense attorneys took advantage of the inefficient judicial system and filed numerous, baseless motions and appeals to delay trial. Threats to and intimidation of witnesses, victims, prosecutors, and judges continued to be a serious problem. Although the Government increased the security it provided for judicial personnel and witnesses in key cases, many observers believe that the level of protection still is insufficient. From April to June, the number of threats against judicial personnel, journalists, and human rights workers increased significantly, further contributing to the public's already heightened sense of insecurity. Allegations persisted that the EMP infringed on citizens' privacy rights by monitoring private communications.
The U.N. Verification Mission in Guatemala (MINUGUA) continued to monitor peace implementation and human rights issues. On March 3 and August 9, the Government signed a series of agreements in which it accepted responsibility for a number of human rights cases pending before the Inter-American Commission on Human Rights (IACHR). By December 5, the Government was negotiation with the IACHR on 79 of 140 pending cases. The Government began to pay reparations in a number of key cases. Violence and discrimination against women persisted, as did societal abuse of children and discrimination against the disabled and the indigenous population. Workers' efforts to form unions and participate in union activities are hindered by an ineffective legal system. Child labor and trafficking in women and children also are problems. Lynchings and mob violence continued, but at a significantly reduced rate, due in part to increased action by the PNC to combat lynchings. The Government conducted antilynching campaigns, achieved a very few convictions in past lynching cases, and made numerous arrests; however, fewer than a third of the hundreds of past lynching cases have gone to trial, and at year's end only one person was serving a prison sentence for taking part in a lynching. There was limited progress in the criminal case against a group of armed civilians who held the leaders of the principal banana workers' union at gunpoint in October 1999 and forced them to resign from both their jobs and union positions.
RESPECT FOR HUMAN RIGHTS
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 committed some extrajudicial killings. The Government demonstrated an increased willingness to arrest and prosecute those responsible and achieved some convictions in high-profile cases; however, in many cases, the scarcity of law enforcement resources and a weak prosecutorial and judicial system prevented the Government from adequately investigating killings and other crimes or arresting and successfully prosecuting perpetrators.
The number of reported extrajudicial killings continued to decline. The office of the Human Rights Ombudsman (PDH), which generally compiles data based on personal interviews with victims and their families, reported 13 complaints of extrajudicial killings during the year, compared with 16 complaints in 1999 and 32 complaints in 1998. Based on 20 complaints alleging 21 extrajudicial killings in the 9-month period between October 1, 1999, and June 30, MINUGUA investigated 15 cases and confirmed 13. It reported 27 such complaints in the first 9 months of the year.
MINUGUA's 11th Human Rights Report, released on August 31, noted a number of extrajudicial killings by members of the PNC. Many of these cases involved accidental discharges of weapons, drunken misbehavior by on- or off-duty officers, questionable crowd control techniques, or poor judgment by officers who lost control of unstable situations involving angry crowds or persons resisting arrest. Other cases presented signs of premeditation and malicious intent. In many of these cases, there was effective investigation by both the PNC's Office of Professional Responsibility (ORP) and the prosecutors of the Public Ministry; however, in some cases, there was credible evidence of a coverup by PNC officers, the ORP, or both.
On February 5, PNC officers without a warrant conducted a sting operation against street vendors of pirated music recordings in an outdoor market in Guatemala City. When a confrontation ensued with angry vendors, a combined patrol of additional police and army units was called to provide backup. As the situation deteriorated, police forces fired their weapons into the air to regain control of the crowd that had gathered. During the confusion, street vendor Francisco Ixcoy Osorio was shot and killed; other persons present were injured. The authorities investigated the killing and arrested several suspects. On June 5, the Public Ministry accused six PNC officers and three army soldiers of homicide. The PNC officers claimed that colleague Alfredo Saso Perez killed Osorio and that two of their superiors – Commissar Virgilio Ramos and Chief of Operations Diones Arriaza Solis – used death threats and false testimony to organize a coverup to impede the Public Ministry's investigation. In June the judge released the accused on bail and provisionally closed the case due to lack of evidence. The Public Ministry appealed this decision, arguing that a case should be pursued against Ramos and Arriaza, and that Saso Perez should be arrested. The Fourth Appellate Court rejected the appeal; however, the Public Ministry continued its investigation, and hoped to reopen the case if new evidence is found.
On March 6, in San Jose Acatempa, Jutiapa, Byron Florian Yanez and Jose Mendez Interiano, two police officers in a PNC patrol car, shot off-duty PNC officer Sergio Barahona Arana from behind and killed him. MINUGUA found that the local PNC falsified its report of the incident, in which it claimed that Barahona had a gun in his hand when he died and that there had been a shootout with the other police officers. There was credible evidence that police later conducted searches and fired weapons into the front of a school building to simulate a gun battle as part of their coverup. MINUGUA also cited evidence that the ORP participated in the coverup by altering its investigative report. Florian Yanez was a fugitive until he was found dead of a gunshot wound on May 31 in Jutiapa. On April 5, the authorities arrested Mendez Interiano; he was in jail awaiting trial at year's end, accused of participating in the coverup. In addition, the Police Commissioner of Jutiapa has not collaborated with the Public Ministry prosecutor in the case; he refused to turn over photographs of the crime scene and the weapons used in the crime.
On April 19, in Coban, Alta Verapaz, Denis Fredy Cucul Tun argued with PNC officers about the fact that his car was parked in a street that was to be cleared for a religious procession. Officer Rolando Salvador Rubio Choc took Cucul to the opposite side of the street, held him against a wall at arm's length, and shot him in the chest at pointblank range, killing him. Hearing the shot, a crowd quickly gathered and sought to lynch Rubio, who fled to the nearby police station. An ORP investigation quickly established Rubio's responsibility for the killing, despite his argument that his weapon accidentally discharged, and he was jailed while the Public Ministry conducted its investigation and prepared to go to trial. MINUGUA confirmed in its 11th report that PNC officers had tried to cover up the facts of the case and impede the Public Ministry's investigation. MINUGUA also noted that Rubio had violated PNC protocols by carrying a weapon that was loaded and contained unauthorized expanding cartridges.
In some cases, detainees or prisoners died while in the custody of PNC officers or Criminal Investigation Service (SIC) detectives, apparently due to torture or abuse (see Section 1.c.).
On March 11, detainee Luis Armando Colindres was found dead in his cell at a PNC substation in Zone 12 of the capital, apparently the victim of strangulation. The PNC claimed that Colindres hanged himself, but the forensic report found injuries consistent with a struggle to resist being strangled. A judge ordered the detention of PNC officers Santos Medardo Recinos Moran, Elman Avigail Garcia Pineda, and Jeremias Santiago Godoy Ramos on charges of homicide. On June 7, the judge granted a defense motion to modify the charges to material document fraud (because PNC reports were altered) and abandonment of duty and released the defendants on bail. A Public Ministry appeal of these decisions was pending at year's end.
Although most cases from past years remained unresolved, there were some convictions during the year for past extrajudicial killings by members of the security forces. In contrast to 1999, there were fewer judicial setbacks in human rights cases. At year's end, trials continued in several high profile cases. In many other cases of past extrajudicial killings, there was little or no progress, often due to the tactics of defense attorneys who frequently abused the legal system by filing dilatory motions to derail impending trials against their military clients.
The investigation entered its final stages and pretrial preparations began against five defendants in the April 1998 murder of Bishop Juan Gerardi Conedera, the Coordinator of the Archbishop's Office on Human Rights (ODHAG). President Portillo promised in his inaugural address that all state institutions would cooperate fully in the investigation. Bishop Gerardi was killed just 2 days after his public delivery of the final report of the "Recovery of Historical Memory" project, which held the military and its paramilitary allies responsible for more than 90 percent of the human rights violations committed during the 36-year-long internal conflict. After 2 years under Public Ministry witness protection, on January 17, former indigent Ruben Chanax Sontay gave additional testimony before Judge Flor de Maria Garcia Villatoro in which he implicated several individuals in Gerardi's murder. Based largely on Chanax's new testimony, on January 21, Judge Garcia issued arrest warrants for five suspects: Retired army Colonel Byron Disrael Lima Estrada; his son, army Captain Byron Miguel Lima Oliva; former EMP Specialist Jose Obdulio Villanueva Arevalo; Father Mario Leonel Orantes Najera; and former parish house cook Margarita Lopez. (Lopez, who was charged with being an accessory after the fact, had been detained briefly in 1998 and then released.) Lima Estrada, Lima Oliva, and Margarita Lopez were arrested on January 21, followed by Villanueva on January 22. On February 9, Father Orantes, who had been arrested and charged with the murder in October 1998, then released in February 1999, secretly returned to the country and immediately checked into a hospital, claiming that his health was too poor to be sent to jail. On February 15, Judge Garcia granted Orantes permission to remain in the hospital, based on a court-ordered medical examination that confirmed his health problems.
Shortly after Villanueva's arrest, his defense attorney presented evidence indicating that he was actually in prison in Antigua on the night of Gerardi's murder, completing the final days of his prison sentence for the 1996 killing of Pedro Sas Rompich. On February 25, Judge Garcia released Villanueva, based on this new information and a lack of Public Ministry evidence to the contrary. On March 15, lead prosecutor Leopoldo Zeissig released the results of a handwriting analysis that demonstrated that Villanueva had not signed personally for his EMP paychecks in prison for several months, including at the time of the Gerardi murder. (Villanueva had remained on the EMP payroll while serving his prison sentence.) In early April, Zeissig also produced a former cellmate of Villanueva's, Gilberto Gomez Limon, who testified that Villanueva frequently was allowed to leave prison, including on the night of the Gerardi murder. This new evidence convinced Judge Garcia to order Villanueva's rearrest, which occurred on April 7.
On March 16, Judge Garcia ruled that prosecutors had presented sufficient evidence against Margarita Lopez to send her case to trial on charges of participating in a criminal coverup. Also on March 16, Zeissig filed charges against navy Captain Carlos Rene Alvarado Fernandez for falsifying Villanueva's signatures on his paycheck receipts and lying to conceal the fraud. On March 21, another court-ordered medical exam confirmed that Father Orantes should continue to spend his pretrial detention in the hospital. In April Judge Garcia ruled that Father Orantes must face trial on charges of murder, based largely on Chanax's testimony and contradictions in Orantes' own statements. On April 24, Chanax left the country under Public Ministry witness protection due to concerns for his safety.
On April 26, the Catholic Church was granted status as a private plaintiff in the case. ODHAG, as the Church's legal representative, gained the right under the law to present witnesses and other evidence at trial and to prosecute the accused alongside the Public Ministry prosecutors. On May 9, the Fourth Court of Appeals agreed with defense attorneys representing Father Orantes and Margarita Lopez that ODHAG did not have sufficient "juridical standing" to act as private plaintiff in the case against them. However, the ruling did not apply to ODHAG's participation in the case against the three military suspects.
On May 18, Judge Garcia charged the three military suspects, Lima Estrada, Lima Oliva, and Villanueva, with the extrajudicial execution of Bishop Gerardi. The charge of "extrajudicial execution," unlike the charge of murder, generally is reserved for members of security forces on active duty, although Lima Estrada was not on active duty in 1998. The judge's decision was based largely on the testimony of witness Ruben Chanax Sontay, which placed all three military defendants at or near the crime scene on the night of the murder. In late July, witness Juana del Carmen Sanabria, the former administrator of Bishop Gerardi's parish house, left the country due to death threats. A total of seven judges, prosecutors, and witnesses have left the country due to threats and intimidation in the case. On August 1, Lima Oliva was involved in a disturbance in prison and was injured slightly. He claimed that other inmates were trying to kill him, but the other inmates claimed that he started the fight and was trying to take control of the cellblock. During the scuffle, several items, including a planner/organizer, disappeared from Lima Oliva's cell and later were found in the possession of Public Ministry prosecutors, whom Lima Oliva accused of masterminding the disturbance for the purpose of "stealing" the documents. On August 7, Judge Garcia granted conditional freedom to Margarita Lopez, allowing her to await trial under house arrest rather than in prison. Another court-ordered medical exam in August confirmed that Father Orantes' poor health required that he remain hospitalized.
After one judge recused herself for a supposed friendship with Lima Estrada and another resigned after being challenged for bias by ODHAG, in July a three-judge panel to hear the case at trial was constituted, with Judge Eduardo Cojulun presiding, joined by Judges Jazmin Barrios and Carlos Chin. A number of appeals and motions filed by the defense attorneys in July and August delayed the trial against all five defendants from October until early 2001. Prosecutors acknowledged publicly that they are pursuing a political motive theory for the upcoming trial, arguing that Gerardi was killed by current or former members of the military with the assistance of Father Orantes and Margarita Lopez. MINUGUA confirmed multiple complaints by Judge Garcia and other judicial colleagues, prosecutors, witnesses, and ODHAG staff of numerous threats and acts of intimidation, including telephone threats, electronic surveillance, and observation by unknown individuals following them on foot or in vehicles (see Sections 1.e. and 4).
Negotiations continued regarding indemnification for the family of Pedro Sas Rompich, who was killed in 1996 by Jose Obdulio Villanueva Arevalo, while Villanueva was acting as a bodyguard for then-President Arzu. Villanueva has since served a commuted prison sentence for the killing and spent most of the year in jail as one of five suspects in the murder of Bishop Gerardi. A court-ordered damages award to be paid by Villanueva to the victim's survivors remained pending.
On April 28, the Supreme Court of Justice (CSJ) annulled an appellate court's December 1999 verdict in the Xaman massacre case, in which an army patrol entered a refugee-returnee community at Xaman, Alta Verapaz, in October 1995, killing 11 persons and injuring 30 others. The Appellate Court had found 15 members of the patrol innocent and resentenced the remaining 10 members to 12-year prison sentences. The prosecutor had appealed the Appellate Court's decision, feeling that the sentences were too lenient. The CSJ decision remanded the case back to the trial court for a retrial. At year's end, the case continued to be delayed by appeals that must be resolved before the retrial can begin. The original trial was the longest in the country's history and was marked by numerous death threats and acts of intimidation against judges, prosecutors, witnesses, and family members of the victims.
Two former police officers sentenced to death in 1996 in the so-called Patrol No. 603 case remained on death row pending the outcome of several appeals by their defense attorney. The case stems from a 1995 murder and attempted murder in what appeared to be a "social cleansing" operation, in which persons deemed socially undesirable (e.g., gang members, local delinquents, or convicts released from prison) are found murdered in circumstances suggesting that the killing was planned and carried out by an organized group. Similarly, there was no progress in the related case before the IACHR.
The August 1994 killing by police of four workers at La Exacta farm remained under investigation, and the criminal case remained suspended. The parties continued to seek a resolution through the IACHR's amicable settlement procedures. Negotiations continued regarding a settlement of the pending labor court charges, with intervention from the Labor Ministry and the Presidential Human Rights Commission (COPREDEH) to install a Conciliation Court to resolve the dispute. The Center for Legal Assistance in Human Rights (CALDH) continued to represent the families of the deceased, the injured, and those who lost their jobs and homes during the illegal eviction. On August 9, President Portillo signed an agreement with the IACHR in which the Government acknowledged its responsibility for failure to provide justice in the case and promised both to pay reparations and pursue renewed criminal investigations against those responsible for the violence.
An appellate court ruling remained pending in the case of the 1994 murder of Constitutional Court president Epaminondas Gonzalez Dubon. Both the prosecution and defense appealed aspects of the May 1998 murder conviction of Marlon Salazar and Roberto Antonio Trabanino, who were serving 27-year prison sentences for the crime at year's end. A third suspect, Mario Rene Salazar, remained at large. On August 8, another suspect implicated in the Gonzalez Dubon murder, Elser Omar Aguilar, was found dead in the trunk of a car in Guatemala City. His body showed signs of torture. In February an appellate court reaffirmed the 14-year jail sentence for narcotics trafficking imposed in July 1999 on former Lieutenant Colonel Carlos Rene Ochoa Ruiz, widely suspected of being the intellectual author of the Gonzalez Dubon murder.
Defense attorneys in the case of the murder of anthropologist Myrna Mack Chang continued to file appeals in order to delay the proceedings, and the courts continued to fail to resolve those appeals in a timely manner. In January 1999, Judge Henry Monroy ordered a trial of the three high-ranking military officers accused of ordering the 1990 murder: Retired General Edgar Augusto Godoy Gaitan, Colonel Juan Valencia Osorio, and Colonel Juan Guillermo Oliva Carrera. A trial originally scheduled for early in the year was delayed by appeals filed by defense attorneys. On March 27, Myrna Mack's sister, Helen Mack Chang, met with CSJ representatives to learn why there had been no decision regarding a defense appeal filed on November 4, 1999, nearly 5 months earlier (the law sets a 30-day time limit for resolving such appeals). CSJ representatives had no answer at that March 27 meeting, but on March 29, they announced that they actually had issued a decision in the appeal on March 23. That decision denied the appeal and fined the defense attorney approximately $130 (1,000 quetzals) for filing a frivolous appeal. On March 31, the defense attorney filed another appeal, this time of the CSJ's March 23 decision. On May 8, that appeal was recognized by the Constitutional Court, which set a May 11 date for a hearing on the merits. However, the Court still had not resolved the appeal at year's end. EMP member Noel de Jesus Beteta, who confessed to the killing, continued to serve a 30-year sentence. On March 3, the Government signed an agreement with the IACHR in which it accepted responsibility for Myrna Mack's murder as well as the denial of justice and proposed an amicable settlement, which was refused by Helen Mack. A commission composed of a Guatemalan jurist and an international expert was established under IACHR auspices to monitor due process in the case.
In November the Government reached a settlement with the Inter-American Court of Human Rights to pay reparations to the survivors of the 1990 killing of three street children – Julio Roberto Caal Sandoval, Jovito Josue Juarez Cifuentes, and Anstraun Villagran – and two indigent adults, Federico Clemente Figueroa Tunchez and Henry Giovanni Contreras, by police officers (see Sections 4 and 5). In December 1999, the Court ruled that there was sufficient evidence that police officers Samuel Rocael Valdes and Nestor Fonseca were responsible for the deaths. The Court also ruled that the Government failed to protect the rights of the victims and provide them with justice.
On August 9, the Government signed an agreement before the IACHR in which it accepted responsibility for its failure to provide justice in the unresolved disappearances in 1989 of 10 university students, 5 of whom were later found dead, and pledged to negotiate an amicable settlement with the victims' survivors, including reparations and criminal prosecution of those responsible.
On August 11 and 12, the Inter-American Court held hearings to set the amount of compensation owed to the families of the victims in the "white van" case; the Court's decision remained pending at year's end. Separately, the Government also offered to enter into settlement negotiations with the victims' survivors. In March 1998, the Court had found the Government liable in the case, in which members of the now-disbanded Treasury Police kidnaped and then either released or killed 11 persons in 1987-88.
In the case of the 1982 military massacre at Dos Erres, Peten, prosecutors secured relocation abroad for two key witnesses and their families in exchange for their testimony against their former army comrades. On March 17, former army Sergeants Favio Pinzon Jerez and Cesar Franco Ibanez testified before a judge about the massacre of more than 200 unarmed civilians on December 6-8, 1982, in the village of Dos Erres. In their testimony, they implicated several former comrades and gave detailed accounts of the massacre, before departing the country under witness protection from the Public Ministry. Based on their testimony, prosecutors obtained arrest warrants against 16 former members of the implicated army patrol. Defense attorneys eventually contested 10 of those arrest warrants, arguing that their clients should be protected from prosecution by the National Reconciliation Law, which grants limited amnesty for certain acts committed during the internal conflict. The Constitutional Court granted temporary injunctions against the arrest warrants so that the petitions could be decided on their merits. On July 7, an appellate court found the petitions to be without merit and denied them. The defense appealed that ruling to the Constitutional Court, where a decision remained pending at year's end. The PNC did not execute six of the arrest warrants, nor did they present the warrants to the military, even though many of the suspects still were on active duty at the time. On December 4, the prosecutor publicly urged the PNC to act on the warrants of four military suspects, including Vicente Alfonso Bulux, Santos Lopez Alonzo, and Fredy Antonio Samayoa Tobar.
Army Sergeant Major Manuel Pop Sun, who was arrested in April and later released under a temporary injunction, remained the only individual to have been arrested in the Dos Erres case by year's end. On June 14, Pop Sun appeared at the MINUGUA offices claiming that the army had imprisoned him in a military hospital, kept him drugged with antipsychotic medications, and was trying to kill him because of his knowledge of the Dos Erres massacre. Pop Sun offered his testimony to prosecutors in exchange for witness protection, but later jumped from a second-story window and fled from Public Ministry protection. Prosecutors stressed that Pop Sun was free to depart at any time, as his participation in the witness protection program was voluntary. His odd behavior raised speculation about the true intent of his offer to testify, and he remained a suspect in the case at year's end. In its 11th Human Rights Report issued in August, MINUGUA noted the presence of Military Intelligence observers when it tried to interview Pop Sun at the Military Medical Center. MINUGUA also found that Pop Sun had been overmedicated while in the military hospital and concluded that his treatment there amounted to torture and abuse.
On March 3, the Government signed an agreement before the IACHR in which it recognized its institutional responsibility for the Dos Erres massacre. Represented by COPREDEH, the Government pursued settlement negotiations with the victims' survivors, who were represented by two NGO's – Families of the Disappeared in Guatemala (FAMDEGUA) and the Center for Justice and International Law. In those negotiations, the Government agreed in principle to prosecute aggressively the material and intellectual authors of the massacre, pay for reparations and other community assistance for the survivors, create a historical document that recounts what happened at Dos Erres, and erect a memorial in honor of the victims. Those negotiations continued at year's end, with reparations as the central focus. On December 1, in accordance with recommendations of both the IACHR and the Inter-American Court, the Government created a Special Commission to Locate and Identify Families and Victims of the massacre at Dos Erres. On December 7, a monument to the victims of the Dos Erres massacre was erected at the cemetery of the Aldea Las Cruces.
On February 1, an appeals court in Coban substituted 50-year prison sentences for the death penalties handed down by a trial court in October 1999 against three former Civilian Defense Patrol (PAC) members in the March 1982 massacres at Rio Negro and Agua Fria, two villages in Rabinal, Baja Verapaz. The Appeals Court gave the three defendants, Carlos Chen, Francisco Gonzalez Gomez, and Fermin Lajuj, 30 years in prison for each of the two murders proven at trial, for a total of 60 years' imprisonment; however, the law sets the maximum prison sentence at 50 years. In June a survivor of the Rio Negro massacre, who was adopted and raised by a foreign family, returned for the first time. She was reunited with surviving members of her family and called on the Government to provide reparations for the impoverished survivors of the conflict-era massacres.
On May 2, CALDH filed a lawsuit on behalf of 10 communities in Quiche and Chimaltenango whose citizens were massacred by government security forces between October 1981 and March 1982, resulting in over 850 deaths. The suit alleges crimes, including genocide, committed by high command of the regime of former President Fernando Romeo Lucas Garcia. In addition to Fernando Lucas Garcia, the suit also names his brother (and former army Chief of Staff) Benedicto Lucas Garcia and former Defense Minister Luis Rene Mendoza as defendants. By the end of the year, prosecutors had made significant progress in their investigation. The suit is the first genocide case to be brought in a Guatemalan court and is a precursor to a similar suit that CALDH plans to file against the regime of former de facto President and current President of Congress Efrain Rios Montt.
There was no apparent progress in recapturing 12 former PAC members convicted in 1999 for the 1993 killing of Juan Chanay Pablo in Colotenango, Huehuetenango, and then freed in April 1999 from a police station by a crowd armed with sticks, machetes, homemade explosives, and smoke bombs. Although arrest warrants were issued to recapture the escapees, they remained at large despite credible reports that they had returned to their home region of Colotenango and were being protected by former PAC comrades. There also was no progress in the investigation of Brigadier General Luis Felipe Miranda Trejo, the alleged intellectual author of the crime, who was elected to Congress in the November elections and therefore enjoys legislative immunity from prosecution. According to the Government, amicable settlement negotiations between the Government and the victim's survivors, mandated by the IACHR, neared completion by year's end. The Government continued to provide security for several human rights activists in Colotenango in accordance with a resolution of the Inter-American Court.
The Supreme Court ordered the Public Ministry to conduct a new investigation into the 1993 murder of newspaper publisher and former presidential candidate Jorge Carpio Nicolle and three associates. Suspect Francisco Ixcoy Lopez, former PAC member, remained at large, despite the fact that the Carpio family had located him at one time and informed the authorities of his whereabouts. The criminal case remained open, but the Public Ministry made no efforts to advance the case and the victim's family withdrew the charges. The case before the IACHR for the Government's failure to provide justice remained pending at year's end, as did a motion to send the case forward to the Inter-American Court. The family of Jorge Carpio requested that the IACHR authorize that the case be taken up by the Court, since they believed that justice was not being served in the Guatemalan courts. The Commission's decision was pending at year's end.
On January 31, a court convicted former PAC member Vicente Cifuentes Lopez of homicide in the 1985 murder of American journalist Nicholas Blake and sentenced him to 28 years' imprisonment. In May police and prosecutors located three other suspects in the case in the remote Cuchumatanes Mountains; however, the Government made no effort to recapture the suspects and they remained at large at year's end. On March 30, the Government paid restitution of $161,000 (1 million quetzals) to Blake's survivors as mandated by the Inter-American Court.
On February 15, an appeals court upheld the November 1999 trial verdict in which former military commissioner Candido Noriega was found guilty of six murders and two cases of manslaughter and sentenced to 220 years in prison. On August 24, the CSJ rejected a similar appeal and upheld both the guilty verdict and the 220-year sentence. (In 1996 the Penal Code was modified to extend the maximum sentence for murder from 30 to 50 years' imprisonment. Because the case began prior to this change, the commuted death sentence for the two murder convictions is for 30 years.) There was no progress in the court-ordered investigation of Noriega's alleged accomplice, Juan Alesio Samayoa, or in the investigation of military officers who served at the so-called Base 20 in Quiche in 1982, the suspected intellectual authors of some or all of Noriega's actions.
On August 28, a court acquitted Lazaro Obispo Solorzano Lopez and Henry Orlando Hernandez Montepeque of the May 1999 kidnaping and murder of oil refinery businessman Edgar Ordonez Porta. Neither prosecutors nor the private plaintiff, the victim's brother Hugo Ordonez Porta, pursued a serious case against the accused during the trial; instead, Hugo Ordonez presented witnesses and evidence that asserted that members of Military Intelligence may have committed the murder. Ordonez also claimed that Military Intelligence conducted a parallel investigation that significantly interfered with the official investigation and may have led the Public Ministry and the PNC into conspiring in a coverup. Also on August 28, the trial court acknowledged the parallel investigation and interference, ordered a new investigation, and left the case open with respect to additional suspects, including several high-ranking military and police officials, as well as the former prosecutor in the case. The motive for the killing remained unclear. During the year, the Attorney General named Leopoldo Zeissig as prosecutor; he was reviewing testimony at year's end.
There was no progress in the 1997 killing of congressional Deputy Joel Salomon Mendoza Pineda and his nephew. The court case against two former congressional deputies was dismissed, and there was no case pending against the former mayor of Escuintla, a suspected intellectual author. In August 1998, the court of appeals upheld the 50-year prison sentence for the four persons convicted of the murder. In October 1999, the CSJ upheld the immunity of Alfred Reyes and Gueillermo Deominguez and determined that the evidence against the legislators was insufficient to oblige them to go to trial.
On June 1, the National Security Archive, an NGO, publicly released its two-volume publication entitled "The Guatemalan Military: What the United States Files Reveal." Volume One is a database of Guatemalan military officers and the positions they held during the internal conflict. Volume Two is a compilation of over 50 key declassified documents said to be representative of the thousands of documents collected during the group's "Guatemala Documentation Project," which was begun in 1994 to support the Historical Clarification Commission's efforts to catalog the devastation of the 36-year internal conflict. Human rights activists viewed the report largely as a tool to determine the responsibility of individual military officers for specific human rights abuses during the internal conflict.
There was little progress in the investigations into the "military diary," an apparently genuine military intelligence dossier that documented the abduction, torture, or killing of 183 persons by security forces during the 1983-85 period. The National Security Archive had released that document publicly in May 1999. The Government responded by appointing 35 prosecutors to handle the cases and a supervising prosecutor designated with overall coordination. Public Ministry investigators made slow progress during the year and learned that some of the victims named in the document still were alive and living either in the country or abroad. The unit that compiled the document has not yet been identified.
Exhumations of clandestine cemeteries continued throughout the year. Most of the bodies recovered have been those of victims of military or paramilitary killings in the 1980's. Forensics groups use the information obtained from the exhumations to verify eyewitness reports of massacres, of which 669 were recorded by the Historical Clarification Commission, and to determine, at least in general, who might have been responsible. Forensic research and DNA testing have identified some of the remains. The forensic evidence has been used in some criminal cases. During the year, ODHAG's Forensic Anthropology Unit exhumed bodies from eight sites in Alta Verapaz, Quiche, Santa Rosa, Huehuetenango, and San Marcos. As of September, workers at these sites had found 419 skeletons and identified 28. By the end of August, the forensic team of the Office of Peace and Reconciliation of the Quiche Diocese conducted excavations of 44 sites in Quiche, where they exhumed a total of 95 human remains, of which 19 were infants and none were identified. Twelve of these sites (containing 28 remains) were found within the grounds of the Joyabaj Parochial Convent, which served as a military detachment headquarters during the 1980's. Threats and intimidation against persons working on exhumations continued, but at lower levels than in previous years. ODHAG reported attempts by landowners to prevent exhumations on their property and, in some cases, suspected clandestine cemetery sites had been disturbed just prior to their investigation. At the end of the year, ODHAG's forensic anthropology unit had ceased work while waiting for a change in funding. Through August the Forensic Team of the Office of Peace and Reconciliation of the Quiche Diocese conducted exhumations at 44 different clandestine cemeteries throughout Quiche department.
In October the prosecutor requested that the judge close the case of the clandestine cemetery alleged in 1999 to be on the grounds of a former Mobile Military Police (PMA) facility. An October 1999 excavation failed to produce any human remains. There was little progress in the investigation into metal fragments found at the site that prosecutors believe were once license plates used during clandestine operations. The delays were due in part to the January resignation of prosecutor Fernando Mendizabal, who feared reprisals from the new FRG-led Government for his role in the investigation into the nationwide smuggling ring led by Alfredo Moreno.
In December press reports suggested that the Guatemalan Forensic Anthropology Foundation (FAFG) recently unearthed the remains of 20 persons in a clandestine cemetery located near San Martin Jilotepeque, Chimaltenango, in what was used as a military post from 1982 to 1986. FAFG staff reportedly believe that the cemetery is one of at least seven in the area.
The criminal case filed in Spain in December 1999 by indigenous leader and 1992 Nobel Peace Prize laureate Rigoberta Menchu Tum against eight former military and civilian leaders for human rights abuses committed during the 36-year internal conflict was not heard by the court. The suit alleged that the defendants, including former de facto President and current president of Congress Efrain Rios Montt, former President and retired General Fernando Lucas Garcia, former de facto President Oscar Humberto Mejia Victores, and five other defendants were responsible for "crimes against humanity," including genocide, torture, and terrorism. The suit cited 3 cases – the 1980 assault on the Spanish Embassy in which more than 30 persons died, the killing of Menchu's mother and 2 siblings, and the killing of 4 Spanish priests over the course of the conflict.
On April 29, Spanish Judge Guillermo Ruiz Polanco denied the third motion in 4 months by Prosecutor Pedro Rubira to dismiss the Menchu suit. This motion was based on the argument that the cases presented by Menchu effectively were adjudicated by the signing of the Peace Accords in 1996, which ended the internal conflict. (The earlier motions had contested Spanish jurisdiction in the case.) During the year, Judge Ruiz Polanco called several witnesses to testify in Spain, including Congresswoman Nineth Montenegro, former Spanish Ambassador to Guatemala Maximo Cajal, former Historical Clarification Commission member Alfredo Balsells Tojo, and Jesuit author Ricardo Falla.
Early in the year, several organizations and individuals attempted to join the Menchu suit, sometimes trying to add numerous additional crimes and defendants. For example, in April Human Rights Ombudsman Julio Arango attempted to join the suit with additional complaints against Lucas Garcia and Mejia Victores. Similarly, in April the human rights NGO the Mutual Support Group (GAM) added 8 additional defendants from the Vinicio Cerezo Arevalo regime to the Menchu suit, accusing former civilian and military leaders of the extrajudicial killings of 53 university student leaders between 1984 and 1990. In May the family of one of the four Spanish priests whose murder constitutes part of the Menchu complaint joined the suit. On December 13, the Spanish court decided not to hear the case. The decision was based in part on the fact that it was not clear that justice in the case could not be achieved in Guatemala, since a genocide case had yet to be tried by the Guatemalan court system.
Attorneys for Mejia Victores made little progress in their counter-charges against Menchu in Guatemalan criminal court, in which they accused her of treason, violating the Constitution, and failing to report a crime by filing charges in a Spanish court rather than a Guatemalan court. In early August, the Spanish court denied a request by prosecutor Candido Bremer for a copy of Menchu's complaint, which Bremer intended to use in his investigation of Mejia Victores' accusations against Menchu. In response, Menchu filed a brief with the Guatemalan court in which she defended her right to file the Spanish lawsuit, based on Guatemala's international treaty obligations that provide for the extraterritorial prosecution of crimes against humanity and genocide. The press reported in November that the counter-suit brought against Menchu in Guatemala by attorneys for Mejia Victores had been closed.
Menchu and various staff members of her human rights NGO, the Rigoberta Menchu Tum Foundation, have been targeted with numerous death threats and other acts of intimidation since the lawsuit was filed in Spain. The number of death threats against Menchu increased sharply in April and May, as it did generally among the human rights community and journalists (see Sections 2.a. and 4.).
Intimidation of witnesses continued to be a problem, although at less than 1999 levels; there were no reports of the killing of witnesses. For example, two witnesses in the Bishop Gerardi murder case, Ruben Chanax Sontay and Juana del Carmen Sanabria, left the country due to threats and intimidation. Several potential witnesses were intimidated in the case of murdered Zacapa Municipal Workers Union leaders Robinson Morales Canales and Angel Pineda. Several witnesses in the Ordonez Porta case also were threatened.
There were some allegations of politically motivated killings by nonstate actors during the year, and the authorities demonstrated a willingness to investigate these murders. In some of these cases, there was insufficient evidence to conclude whether or not the killing was politically motivated.
On June 22, Oswaldo Monzon Lima, Secretary General of the 90-member Union of Gasoline Transport Drivers in Escuintla, was killed. His body, shot once in the back, was found on June 23 in a thicket across the highway from his abandoned tanker truck. Since 1998 Monzon Lima had been involved in an ongoing dispute with his employer at the time, president of the Association of Fuel Transporters Mario Ortiz Barranco. In 1998 Monzon Lima had filed a complaint with the police that Ortiz had threatened to have him killed, based on a suit in the labor courts alleging that Ortiz had fired illegally three union leaders within weeks of the union's formation. In addition, Monzon had presented the Ministry of Energy and Mines with a file that outlined irregularities in Ortiz's conduct of his gasoline transportation business, including his use of forged permits and licenses. On June 19, Monzon refused to accept a settlement offer from Ortiz in the suit over the illegal firings. He was murdered 3 days later. By September the Public Ministry's investigation was proceeding normally with Ortiz as the primary suspect.
On February 29, Erwin Haroldo Ochoa Lopez and Julio Armando Vasquez, two environmentalists working for the National Council for Protected Areas (CONAP), a governmental environmental protection agency, were killed outside a restaurant in Puerto Barrios, Izabal. MINUGUA noted serious mishandling of the crime scene, including the fact that police would not allow firemen to administer first aid to the victims, who still were alive when firemen first arrived on the scene, but who died shortly thereafter. The Public Ministry's investigation eventually focused on retired army Colonel Sergio Otoniel Ponciano, who owned a private security firm and a ranch in a protected area. In August the authorities arrested Ponciano and charged him with murder. Separate investigations by SIC detectives and Public Ministry prosecutors underscored the lack of coordination between these two organizations on both the local and national levels.
In October Maura Ofelia Paniagua Corzantes, civil law coordinator for the law clinic at San Carlos, was murdered. She was in charge of receiving criminal complaints, particularly complaints of violence against women, on behalf of the University, which is recognized under domestic violence law. The day before Paniagua was killed, someone came to the door to see her; her maid told the person that she was not available and the person went away. The following day the same person returned and shot her repeatedly. At year's end, the Public Ministry was investigating the case to determine a motive and suspect for the killing.
On March 2, on a road near Coban, Alta Verapaz, four armed men attacked a group of attorneys, judicial personnel, representatives of the Human Rights Ombudsman's office, and farmers, leaving three persons dead and three wounded. The group was travelling to a meeting where it planned to mediate a dispute between ranchers and small farmers over the use of a new road. PNC officers later arrested rancher Hermelindo Caal Rossi and an unidentified minor for the killings. The case was under investigation by the Public Ministry at year's end.
On May 4, Jose Anancio Mendoza Garcia was found dead in a well in Camotan, Chiquimula. His body showed signs of multiple injuries that indicated that he was murdered. Mendoza Garcia was a former New Nation Alliance (ANN) candidate for mayor in Camotan, as well as a local leader of the Council of Ethnic Communities Runujel Junam (CERJ), a prominent indigenous human rights organization. There was no clear motive for his killing, but Mendoza's CERJ and ANN colleagues concluded that his murder was politically motivated. There was little progress in identifying a motive or a suspect by year's end.
There were some trials resulting in convictions for past cases of politically motivated killings, but many cases remained unresolved, including the 1999 murders of Zacapa Municipal Workers Union leaders Robinson Morales Canales and Angel Pineda.
On July 27, a court convicted former Santa Cruz mayor Silverio Perez de Leon and former city council member Justo Lopez and sentenced them each to 50 years' imprisonment for their roles as intellectual authors of the May 1998 murder of acting mayor Luis Yat Zapeta. Former treasurer Cayetano Alvarez Velasquez was found innocent. Prosecutors convinced the court that the crime was committed in revenge for Yat's successful effort to remove Perez de Leon from office on charges of corruption. An appeal of the trial court's verdict was pending at year's end. Bernardino Zapeta Vicenta, Tomas Zapeta Ixcoy, and Manuel Pacajoj Mejia, the suspected material authors of the killing, were in jail for an unrelated robbery.
In the case of murdered Retalhuleu Prosecutor Shilvia Jerez Romero de Herrera, on August 7, the 7th court of appeals upheld the death sentence handed down by a trial court in October 1999 against Agosto Negro gang member Tirso Roman Valenzuela Avila. In that decision, the appeals court modified the trial court's verdict with respect to Jorge Ever Lopez Monroy, to whom it also gave the death penalty, and Waldemar Hidalgo Marroquin and Jaime Raul Quezada Corzo, each of whom received 50-year prison sentences for the May 1998 murder. They previously had been set free by the trial court. The CSJ upheld the death sentence for Valenzuela Avila and upheld the 50-year sentences for the other three defendants.
Prosecutors determined that the January 1999 killing of alleged gang member Olman Alexis Viera Rodriguez, and the May 1999 murder of New Guatemalan Democratic Front (FDNG) leader Roberto Gonzalez Arias were not politically motivated.
Prosecutors continued to investigate the 1999 murders of Zacapa Municipal Workers Union leaders Robinson Morales Canales and Angel Pineda, both of whom had protested labor rights violations and corruption in the Zacapa mayor's office. Prosecutors made no apparent effort to continue to investigate former Zacapa Mayor Carlos Vargas y Vargas, his driver, or his bodyguard, who were believed widely to be the intellectual and material authors of the murders. On February 3, police arrested Carlos Anibal Paz Gordon, a former employee of a company owned by persons close to Mayor Vargas, as the suspected material author of the crime. Paz Gordon's alleged accomplice, Carlos Ramiro Mende Aldana, remained at large at year's end. Paz Gordon's trial originally was scheduled to begin on February 15, but was delayed by a change in the prosecutor and a series of pretrial evidentiary motions and hearings. On October 5, the court convicted Paz Gordon and sentenced him to 20 years' imprisonment. Several other Zacapa Municipal Workers Union members claimed to have received death threats, as did several key potential witnesses. MINUGUA reported in 1999 that the prosecutors in Zacapa seriously mishandled several aspects of the investigation against the material authors.
Six months after the May 1999 abduction and killing of Tomas Tol Salvador, an FDNG leader in Quiche and human rights activist for the CERJ and for the Council of Ethnic Communities, an indigenous organization, the courts finally ordered the January 18 exhumation of an unidentified body. The body was confirmed to belong to Tol Salvador. No suspects were identified and no clear motive had been established by year's end; the case remained under investigation.
In the May 1999 killing of former Judge Herberto Zapata Gudiel, prosecutors requested provisional closure of the case while they gather additional evidence against primary suspect Elmer Ezequiel Hernandez Salazar. In addition prosecutors ruled out the possibility that Zapata might have been involved in narcotics trafficking. The case still was pending at year's end. Two presumed suspects were identified, but the judge provisionally closed the case against them pending the discovery of further evidence.
The investigation into the July 1999 murder of Mayan priest Raul Coc Choc remained provisionally closed for lack of evidence, although prosecutors continued their investigation. Coc Choc was a leader of the National Association of Mayan Priests; members of the board reported that he had received numerous death threats over the telephone prior to his murder. The Public Ministry has accused Julian Chonay Buc and Josefina Cristal Costop of the crime, but the judge provisionally closed the case for lack of evidence. The Public Ministry has requested a reconstruction of the crime scene in order to reopen the trial.
There were no further developments in the investigation into the August 1999 murder of sociologist Maria Ramirez Sanchez. Because Ramirez was an employee for the same organization as anthropologist Myrna Mack when the latter was killed for political reasons in 1990, media and human rights groups speculated that Ramirez's murder also was politically motivated. However, by the end of the year, prosecutors still had not established a motive or identified the possible killers; the investigation continued.
A heightened sense of public insecurity fueled by a deteriorating violent crime situation and a rash of threats against journalists, human rights workers, and judicial personnel, contributed to some allegations of social cleansing operations. During the first half of the year, a number of corpses were found in and around Guatemala City with signs of torture and violent death, including decapitation. Nearly all of the corpses were young males, many with gang-style tattoos, causing some human rights observers to suspect that the Government was conducting a social cleansing operation against gang members or other criminals. Others argued that the deaths were the product of an inter-gang turf war, possibly related to narcotics trafficking. In its 11th Human Rights Report, MINUGUA noted apparent social cleansing operations in Siquinala, Escuintla, in which armed groups kidnaped, tortured, or killed several individuals.
Prison authorities reported that on May 8, convicts Gumercindo Lopez Salazar and Elvin Arnulfo Sosa Flores escaped from prison and killed a guard in the process. The next day, Lopez's dead body was found in a river with signs of torture and mutilation. A preliminary autopsy by a forensic doctor from the judiciary concluded that the victim had been murdered – a conclusion that was discarded by the Public Ministry in a follow-up autopsy by its own doctor. In addition it was unclear whether Lopez's death might have preceded the time at which he was alleged to have escaped from prison, thereby raising doubts as to whether the escape might have been faked to camouflage an extrajudicial killing. In its 11th Human Rights Report, MINUGUA concluded that the Public Ministry did not thoroughly pursue the investigation in its initial stages.
In 1999 ODHAG and CALDH brought criminal charges against former leaders of the Guerrilla Army of the Poor (EGP) for the alleged killings of five former EGP guerrillas. The charges were initiated after relatives of EGP members who had disappeared in the early 1980's broke off negotiations with former EGP leaders aimed at determining the whereabouts of the remains. CALDH later halted the legal process after negotiations resumed. In August ODHAG reported that the case remained in the investigation phase, with an exhumation planned in Nicaragua to search for the bodies of the EGP members, based on information received from potential witnesses. According to ODHAG and CALDH, at year's end the case was suspended at the request of the victims' families.
The number of attempted lynchings and resultant deaths decreased significantly during the year, and the PNC deterred a number of lynchings. However, 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, led to continued lynchings and mob violence. Since MINUGUA began tracking lynchings in 1996, it has recorded a total of 337 cases. Of these, 75 cases have gone to trial, and 17 sentences have been handed down. Of these sentences, 7 were acquittals and 10 were guilty verdicts. By year's end, only one individual had actually begun to serve a prison sentence. MINUGUA reported 52 lynchings during the year (including 24 lynchings and 28 attempted lynchings), which resulted in 32 deaths and 83 persons injured. These figures are significantly lower than in 1999, when there were 105 lynchings (71 lynchings and 34 attempts), resulting in 48 deaths and 188 persons injured. There were fewer lynchings during the first half of the year; this was attributed by many observers primarily to the elections and the new Administration's early period in office, and in part to increased PNC deployment in rural areas and greater intervention by the PNC and other authorities. While the police were successful in rescuing some victims of mob attacks, many observers agree that their efforts to deter or prevent lynchings would benefit greatly were the organization to establish more effective ties with indigenous communities (see Section 5). MINUGUA has noted that lynchings increasingly are planned and premeditated events. There continued to be some cases in which municipal officials or other local leaders were involved in lynching attempts. As in past years, mobs generally killed the victims for either property-related crimes or suspected membership in criminal gangs. The large majority of the attacks took place in rural areas in the mostly Mayan communities of the western and central highlands. Generally these were communities where, during the internal conflict, PAC's were accustomed to conducting populist summary hearings in the town square and then publicly executing alleged criminals or guerrillas.
On April 29, approximately 500 residents of Todos Santos Cuchumatan, Huehuetenango, stoned to death a Japanese tourist and burned to death his Guatemalan tour-bus driver. The incident apparently resulted from local fears based on rumors that a satanic group intended to hold a conclave in the area at that time. Authorities reacted quickly, eventually arresting a total of 13 suspects. On August 13, three of the suspects were accused formally of murder and assault; the investigation continued at year's end, with no date set for the trial.
On July 8, a crowd trapped eight men at a roadblock near Xalbaquiej, Chichicastenango, Quiche. The victims were pulled from their vehicles, doused with gasoline, and burned to death because they were suspected of running guns and drugs. Authorities quickly identified and issued arrest warrants for 12 suspected ringleaders of the mob. Representatives of 30 surrounding communities threatened unspecified retaliation against the Government should any arrests be made in the case; at year's end, the PNC had not executed the warrants.
While the justice system has been slow to convict and imprison perpetrators of lynchings, the Government has demonstrated an increased willingness and ability to investigate and prosecute lynching offenders. There were numerous arrests and several convictions against lynch mob leaders during the year. On May 25, a court sentenced four men to 41 years and 8 months in prison each for a 1999 lynching of two victims in Chisec, Alta Verapaz. On May 10, three individuals received 30-year prison sentences and on June 2, one vigilante was sentenced to 50 years in prison and two others were given 33-year sentences for an October 1997 lynching in Comitancillo, San Marcos. On December 19, the Sentencing Tribunal of Solola condemned Diego Tzaj Cuc to 50 years in prison on two 25-year counts of murder for the January 1997 lynching in Nahuala of Cristobal Tambriz Ixtama and Diego Crisostomo Coti Gomez. The conviction came after the Solola district prosecutor appealed a June 14 decision which found Tzaj Cuc not guilty. The Ninth Appelate Court agreed with the prosecution and ordered a retrial at which Tzaj Cuc was convicted. Three other suspects in the case were awaiting trial at year's end: Francisco Boluz Lopez, Cruz Sojom Coti, Alonzo Tulul Guarchai and Francisco Traj Tay. At year's end, 10 men and 1 woman were scheduled to stand trial for the June 1997 lynching of 9 persons in Barreneche, Solola.
With the assistance of MINUGUA, the Government inaugurated a new antilynching campaign targeting those specific areas where lynchings have occurred. During the year, about 50 workshops had been held in rural towns, and these towns had not seen a recurrence of lynchings at year's end. In conjunction with the program's inauguration, CSJ President Jose Quesada Fernandez strongly denounced lynchings in a public statement and pledged support and protection for judicial personnel who are threatened by the local populace when lynching perpetrators are brought before the courts. In addition the National Tourism Institute (INGUAT) promotes a campaign that includes educational workshops to prevent lynchings. The PNC developed an antilynching operational plan that outlines procedures for officers to follow when confronted with lynchings. There were some criticisms that the PNC has yet to meaningfully deploy its operational plan or take advantage of officers who speak indigenous languages to build relationships with the communities that they police. Some observers also have criticized national antilynching campaigns as lacking sufficient focus or coordination with rural communities.
Despite improvements in the Government's response to deter lynchings and punish those responsible, growing public feelings of insecurity in the face of an ongoing wave of violent crime led many communities to form Local Security Councils – as provided for in the Law on the National Civilian Police – to protect themselves from criminal activity. These organizations were created primarily in Quiche department, with others believed to exist in Baja Verapaz, Solola, Huehuetenango, and San Marcos departments. At a November press conference, PNC director Rubio Lecsan Merida announced that the Councils would be implemented in 31 municipalities as a measure to extend the effectiveness of the police. In addition there were unconfirmed reports that armed groups not covered by the Council statute have organized in numerous other communities. There also were unconfirmed reports that these unregulated, uncontrolled groups were responsible for killings, torture, and social cleansing operations. There continued to be concerns that former PAC members sometimes are involved in lynchings.
There was one credible report of forced disappearance attributed to police forces.
On May 7, plainclothes PNC and SIC agents detained Adelso Carrillo Leiva, Rigoberto Pineda Agustin, and Mynor Pineda Agustin in San Benito, Peten. During interrogation for suspected participation in a kidnaping, the suspects were blindfolded and driven to a remote location, then threatened, beaten, and tortured. They returned to San Benito without Mynor Pineda, and his whereabouts were unknown as of June 30, suggesting a forced disappearance. A MINUGUA investigation indicated that PNC and SIC members tried to frame the three suspects for the kidnaping by falsifying evidence and documents. In addition the police apparently drove the suspects to the scene of the crime in order to claim that they caught the suspects in the act. The Public Ministry made no serious attempt to investigate or solve the crime. A writ of habeas corpus submitted on May 10 was answered by the judge in the San Benito Criminal Court, but did not produce Mynor Pineda or any information regarding his whereabouts.
There was no progress in the February 1998 disappearance of Francisco Gonzalez Vasquez, which was attributed to two Zacapa police officers. Despite an August 1998 arrest warrant for the arrest of Inspector Marvin Rolando Gomez Noguera on charges of "abuse of authority and threats," he never has been arrested. The PNC transferred him to a position in Tecun Uman, San Marcos (on the other side of the country).
The PDH's office reported 10 complaints of forced disappearance during the year, compared with 12 in 1999, and 18 in 1998. MINUGUA reported two complaints of forced disappearance during the year, compared with one in 1999 and one in 1998.
There was one credible report of a politically motivated disappearance. On April 7, University of San Carlos (USAC) Professor Mayra Gutierrez Hernandez disappeared. The human rights community and Gutierrez's family and friends concluded that her disappearance was politically motivated, due to her social activism and political activities, which included social research into international adoptions, women's rights, and a range of human rights causes. They also accused prosecutors of sabotaging the investigation by pursuing inaccurate theories that Gutierrez was an active member of a guerrilla organization and either left voluntarily or was kidnaped by her guerrilla comrades. These theories were repeated publicly by high-level Government officials, including then-Interior Minister Guillermo Ruiz Wong, thereby adding fuel to suspicions of a rightwing conspiracy. During its own investigation, MINUGUA found evidence that persons associated with military intelligence were spreading rumors and other misinformation to divert the official investigation, while persons close to Gutierrez inexplicably altered or removed valuable evidence and gave false information to Public Ministry prosecutors. Nevertheless, there were strong indications that the Public Ministry's investigation was neither thorough nor objective. On November 28, the NGO Grupo de Apoyo Mutuo requested a special mandate from the CSJ to conduct an investigation into the case due to the lack of information that has been made available to date by the authorities. On December 7, the Supreme Court granted the PDH the status of special investigator in the case until February 2001.
Disappearances in high-profile cases from recent years remained unresolved at year's end. For example, there was no progress in the investigation into the April 1999 disappearance of prominent indigenous leader and FDNG party member Carlos Coc Rax. Nor was there progress in the disappearance cases of Arnoldo Xi, an indigenous- and peasant-rights activist who reportedly was shot and abducted in March 1995; Lorenzo Quiej Pu, a human rights activist who disappeared in January 1994; and Juan Jose Cabrera ("Mincho"), the guerrilla commander reportedly captured by the EMP in 1996 while taking part in a kidnaping.
On August 10, ODHAG released its report on children missing since the armed conflict. The report stated that of the documented cases, 86 percent were of "forced disappearances" and the remaining 14 percent were attributable to diverse causes associated with the conflict, such as communities fleeing attack. Of the documented cases of forced disappearances, the military was responsible for 92 percent of the cases; PAC's were responsible for 3 percent; guerilla forces were responsible for 2 percent; and the remaining 3 percent could not be attributed to anyone. In 68 percent of the forced disappearances, boys and girls were taken directly to a military post of one kind or another. Approximately 93 percent of the victims were Mayan children, the majority of whom were between 1 and 4 years old.
The fate of guerrilla leader Efrain Bamaca Velasquez, who disappeared following a March 1992 clash between army and URNG forces, remains unknown. On December 5, the Inter-American Court ruled that the Government was guilty of violating Bamaca's personal liberty and integrity, and his rights to life, to juridical personality, and to legal protection. It further found that in the case, the Government violated international human rights conventions, specifically the Convention against Torture. The Court ordered the Government to investigate, publicly identify and try those responsible, and award damages for its violations.
There was no apparent progress in the 1998 criminal case filed by Adriana Portillo Bartow for the 1981 abduction and disappearance of her two children and four other members of her family. The lawsuit named former Interior Minister Donald Alvarez Ruiz, former National Police Director German Chupina Barahona, and Pedro Garcia Arredondo, the former chief of Commando Seis (a plainclothes police urban counterinsurgency force) as defendants. Garcia Arredondo was reelected as mayor of Nueva Santa Rosa in the November 1999 elections and therefore has immunity from prosecution.
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 torture, abuse, and other mistreatment by members of the PNC, although at decreased levels from the previous year. These complaints typically involved the use of excessive force during arrests, interrogations, or other police operations. SIC detectives continued to torture and beat detainees during interrogation to obtain forced confessions. The Government and the PNC showed increased willingness and ability to investigate, prosecute, or otherwise punish officers who committed abuses. The PNC transferred cases of alleged torture to the Public Ministry. There was a significant increase in the number of murder victims that demonstrated signs of torture or cruel treatment, in such diverse locations as the Peten, the border with Honduras, Escuintla, and Guatemala City, which led some observers to suspect social cleansing operations (see Section 1.a.).
The PDH's office reported no complaints of torture during the year, compared with four in 1999 and two in 1998. In its 11th Report on Human Rights, MINUGUA investigated 13 complaints of torture, of which 12 were confirmed. The majority of these cases involved abuse or mistreatment of suspects and detainees by PNC officers or SIC detectives. The PNC sometimes punished the use of excessive or illegal force by officers, but more often offenders merely were transferred to a different location. In several cases, there was credible evidence that PNC officers and their superiors altered documentation, falsified evidence, bribed and intimidated victims and witnesses, or otherwise obstructed the investigation and prosecution of police misconduct. Some PNC officers accused of crimes evaded punishment by fleeing justice. On November 25, the PNC director said that the organization has "zero tolerance for illegal acts or for human rights abuses on the part of police officers." Through the end of October, 215 PNC officers had been dismissed from duty, while another 537 officers were under investigation in the courts.
On February 3, PNC officers in Nueva Santa Rosa, Santa Rosa, arrested Juan Carlos Zepeda Herrera for public drunkenness. Several neighbors witnessed the arrest, but when Zepeda's father went to the police station to inquire about his son, a senior officer denied knowledge of the arrest. The next day, Zepeda was found in the bottom of a 15-meter deep ravine with several broken bones and other serious injuries. The ORP and Public Ministry concluded that the arresting officers were responsible, but little progress had been made on the case against them by the end of the year.
On February 9, Augusto Marroquin Carreto was taken from his cell in the Quetzaltenango detention center by SIC detectives and interrogated about his alleged involvement in the death of another prisoner. The detectives beat and tortured him until he confessed. Several high ranking PNC and SIC officers attended the interrogation. On February 5, SIC officers from Quetzaltenango tortured Pablo Albani Edelman Bethancourt and Alex Guillermo Reyes Monterroso into confessing their membership in a gang of car thieves by asphyxiating them with rubber hoods and beating them.
On February 13, in Jocotenango, Sacatepequez, Carlos Samayoa Olayo was arrested inside his home and beaten severely by PNC officers who did not have an arrest warrant. He was taken to jail despite signs that his health was deteriorating quickly. Eventually, he was taken to a hospital, where part of his intestine was removed surgically due to injuries he sustained from blows to the stomach. PNC officers falsified his arrest documentation to justify their use of force and hide the fact that they had arrested him illegally. A judge freed Samayoa and the PNC initiated disciplinary proceedings against the responsible officers, but the Public Ministry's investigation failed to produce criminal charges by year's end.
Casa Alianza reported that although the number of incidents of abuse of street children roughly was equal to 1999 levels, relatively few incidents were committed by members of the security forces. Most acts of violence against street children were committed by individuals, by private security guards, or in gang- and drug-related violence among street children. Casa Alianza reported only one case of abuse of street children by PNC officers, in which several officers were alleged to have threatened and intimidated five street children. Prosecutions and convictions for crimes against street children continued to be very rare.
There were no reports that police used excessive force in evictions of landless peasants occupying farms in attempts to gain land during the year. Because of violent confrontations in the past, the Government continued its policy of securing an eviction order from a court, informing the occupiers of the coming eviction, and sending in a lightly armed police contingent to end the occupation by using dialog and verbal persuasion. The Ministry of Government carried out numerous evictions without incident during the year using this policy. Despite these improved tactics, on March 7, police and squatters clashed during an eviction near Villa Nueva, when police used tear gas to subdue rock-throwing squatters. In a similar operation, police also clashed with squatters in the Peten on December 11. Some 21 persons were injured as violence broke out during the eviction of about 300 squatter families. Police used tear gas to disperse the crowd. The public continued to experience difficulty in demonstrating or securing legal title to land, and some progress was made toward genuine land reform. On April 27, the parastatal Fontierras signed a $31 million loan agreement with the World Bank to provide property titles to landowners in the Peten department. Cooperation between the parastatals Fontierras and Contierra brought together the related functions of land purchases with that of resolving land conflicts, which are at the root of a great deal of rural violence and lynchings (see Section 1.a.). The alliance resolved 89 such conflicts during the year. The issuing of land titles by Fontierras has affected approximately 5,400 families; the estimated demand for these services is estimated at 55,000 families.
Corruption continued to be a problem, and there were credible allegations of involvement by individual police officers in criminal activity; contrary to the previous year, there were no credible allegations of police involvement in kidnapings. The authorities arrested some police officers and continued to take action against officers found to have engaged in illegal activities, referring some violations to the criminal justice system rather than simply imposing administrative punishments. However, some observers claimed that rather than discipline its officers the PNC often just transferred them to a different part of the country. Transfers are a common practice and are used to avoid personal problems, corruption, and questions of mistreatment of detainees. Impunity for police who commit abuses remained a serious problem.
All PNC members were required to meet minimum education requirements and pass an entrance examination. Former PN staff who wished to integrate into the PNC must complete successfully a 3-month retraining course. According to MINUGUA, there are 1,200 former PN employees who have yet to receive training. There also were screening procedures to detect suspected human rights violators and officers involved in criminal activities. New recruits had to 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 claimed that the retraining course was not sufficiently rigorous and that relatively few members of the PN were screened out during retraining, allowing the incorporation of some poorly qualified PN members into the ranks of 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 incorporated some former members of the military and the former PMA into the ranks of the PNC upon the completion of only the shorter course intended for current members of the PN. A total number of 10,144 officers from prior security forces have taken the retraining course since its inception. The former PMA members were not subjected to a competitive selection process but were screened carefully before they were allowed to enter the program. Although government plans called for 20,000 PNC members to be on duty around the country by the end of 1999, resource constraints limited that number to about 16,700 by year's end. According to a June MINUGUA report, PNC officers covered 307 of 331 municipalities. Approximately 39 percent were new recruits, and 61 percent were inducted from existing organizations. Approximately 10 percent of the force is female. In August a class of 999 new recruits graduated from the Police Academy.
The PNC's Office of Professional Responsibility (ORP) handles internal investigations of misconduct by police officers. Despite greater numbers of police officers on duty throughout the country, and less public apprehension about filing complaints against the police, the total number of such complaints remained roughly the same as the previous year. There were signs that the ORP increased its independence, professionalism, and effectiveness, despite limited experience and resources. However, there were isolated cases in which ORP investigators appeared to participate in coverups of police misconduct. The ORP received a total of 1,581 complaints during the year, compared to 1,517 complaints for 1999. There were 222 complaints of abuse of authority, 104 of robbery, 43 of homicide, 141 of corruption, 108 of improper conduct, 107 of threats, and 72 of illegal detention. In cases where sufficient evidence suggested that criminal acts were committed, ORP investigators forwarded them to the Public Ministry for further investigation and prosecution. Between January and the end of October, the PNC fired 215 officers. By year's end, charges were brought against a total of 594 officers. At the end of the year, the ORP had closed 870 cases, compared to 153 cases in 1999. The investigations found 345 officers culpable and exonerated 525 officers. Most observers still considered the PNC to be a significant improvement over the PN.
In 1998 the PNC 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 would be proficient in the local language and able to operate effectively in those communities. According to MINUGUA, approximately 7 percent of PNC officers speak an indigenous language. However, it appears that a very high percentage of officers that do speak indigenous languages work outside of the geographic area of their particular linguistic competency.
No active members of the military serve in the police command structure, but on March 21, Congress enacted a law enabling the Government to employ the army to continue to support the police temporarily in response to an ongoing nationwide wave of violent crime. In 1998 and 1999, President Arzu had ordered the army to support the police temporarily. While these measures were popular politically, given the public's preoccupation with crime and security, they left open the possibility of renewed military involvement in internal security functions, a role prohibited by the Peace Accords. Under the new law, military personnel are not subordinated clearly to police control during joint patrols or operations.
There has been only modest progress in the case of Sister Dianna Ortiz, who was kidnaped, tortured, and sexually abused by a group of armed men in November 1989. The prosecutor on the case, Braulio Guzman, renewed his efforts to finalize the investigative phase of the trial despite logistical constraints. The court is empowered to close the case for lack of evidence should nothing further be submitted.
Prison conditions remained harsh but generally not life threatening. There was at least one death in the prison system that caused observers to suspect social cleansing by government agents (see Section 1.a.). The prison system continued to suffer from a serious lack of resources, particularly in the areas of prison security and medical facilities. In November the Government reported that prison capacity nationwide was 6,170 persons and that there were approximately 6,700 inmates. The majority of the prisoners are not serving prison terms but are being held in pretrial detention. Pretrial detainees often are separated from convicted criminals. Many are released either on good behavior or because they never are sentenced. Some institutions were overcrowded; for example, in August the Preventive Detention Center for Men in Guatemala City was approximately 75 percent over its designed capacity. In February a project to improve prison infrastructure began, involving improvements to fences and walls to prevent further escapes and installation of better water, electricity, sanitation, and emergency systems. In the spring, a new maximum security facility opened. Prisoners continued to complain of inadequate food. Corruption – especially drug-related – was widespread. Prison officials reported frequent escape attempts and other manifestations of prisoner unrest. According to press reports, in December approximately 1,100 prisoners temporarily took control of the interior of the main detention facility in Guatemala City, calling for better living conditions and access to visitors. The frequency of jailbreaks continued to be a matter of serious public concern, although the number of successful escapes appears to have declined. Several escaped convicts eventually were recaptured. The military continued to provide perimeter security for various prisons, as it has done since 1998.
The 433 female prisoners in the penal system generally are held in facilities separate from men. Immigration detention facilities do not always keep female detainees separate from the male population. In August one woman claimed that she had been raped while in detention; however, she declined to cooperate with authorities willing to investigate. The Government permitted access to prisons by family members.
Minor children are held in separate detention facilities. According to a December MINUGUA report, there are only five juvenile delinquent facilities in the country; approximately 39 percent of the children housed in these facilities have sought protection and have committed no offense.
The Government permits prison visits by independent human rights monitors.
d. Arbitrary Arrest, Detention, or Exile
The law prohibits arbitrary arrest and detention; however, there were frequent credible reports of arrests without judicial warrants, illegal detentions, and failure to adhere to prescribed time limits in legal proceedings. In practice, arresting officers frequently fail to satisfy legal requisites. 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 the case in court. The law also provides for access to lawyers and bail.
There are no comprehensive, reliable data on the number of arbitrary detentions, although most accounts agree that the security forces routinely ignored writs of habeas corpus in cases of illegal detention. The PDH reported 46 complaints of illegal detention during the year, compared with 20 in 1999 and 18 in 1998. From October 1999 through June, MINUGUA investigated some 31 cases of illegal or arbitrary detention, and confirmed 23. According to a December MINUGUA report, approximately 95 percent of arrested children were arrested by authorities without a warrant.
Government figures indicated that approximately 61 percent of those incarcerated are awaiting trial. The law sets a limit of 3 months for pretrial detention; however, longer detentions still occurred routinely. Prisoners often were detained past their legal trial or release dates. Prisoners sometimes were not released in a timely fashion after completing their sentences due to the failure of judges to issue the necessary court order or other bureaucratic problems.
The Constitution prohibits exile, and it is not practiced.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary; however, the judicial system often fails to provide fair trials due to inefficiency, corruption, insufficient personnel and funds, 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 a few important human rights cases from previous years. However, many high-profile human rights cases remained pending in the courts for long periods as defense attorneys abused the system by employing numerous dilatory appeals and motions, for which they rarely were sanctioned. Courts sometimes took months to resolve even patently frivolous appeals. There were numerous credible allegations of corruption, manipulation, and intimidation in the judiciary. There also were credible allegations of parallel investigations by military intelligence – in the Bishop Gerardi and Ordonez Porta murder cases – that interfered with the justice system's efforts to investigate or prosecute those responsible (see Section 1.a.).
Judges and prosecutors continued to receive threats aimed at influencing current decisions or as reprisals for past decisions. Death threats and intimidation of the judiciary were extremely common in most cases involving human rights violations, particularly where the defendants were current or former members of the military, military commissioners, or PAC's; witnesses often are too intimidated to testify. For example, the lead prosecutor and his staff in the Bishop Gerardi murder investigation continued to report wiretapping, surveillance, and frequent death threats. In addition at least two judges and a judicial staff member in the Gerardi case reported threats and intimidation, including surveillance (see Section 1.a.). With relatively few exceptions, plaintiffs, witnesses, prosecutors, and jurists involved in high-profile cases against members of the military reported threats, intimidation, and surveillance. A March report at the U.N. Human Rights Commission noted that many judges and prosecutors are denied health insurance because the threats and intimidation that they receive makes their jobs too dangerous. The Government allocated more resources to the judiciary's physical security, including providing protective details for the judge and at least some members of the prosecution team in the Gerardi case and witnesses in the SITRABI and Dos Erres cases (see Sections 1.a. and 6.a.). The Government also devoted more resources to providing for witness protection abroad for key witnesses in the Gerardi and Dos Erres cases (see Section 1.a.). According to a November press article, the Public Ministry spent approximately $800,000 (6 million quetzals) on its witness protection program, and was reviewing the criteria according to which witnesses are admitted into the program.
The judiciary is composed of the Supreme Court of Justice (CSJ), appellate courts, trial courts, and courts of first instance (which function like grand juries). There also are courts of special jurisdiction such as labor courts and family courts; these also are under the jurisdiction of the CSJ. The Constitutional Court is independent of the rest of the judiciary. The Constitution requires that Congress elect all CSJ and appellate court magistrates every 5 years from lists prepared by panels composed of active magistrates, representatives of the bar association, law school deans, and university rectors. In October 1999, new CSJ and appellate magistrates were chosen in a selection process that was more participatory and transparent than ever before, despite some accusations that political parties were attempting to fill the courts with their sympathizers prior to the November 1999 general elections. There are several community courts in indigenous rural areas (see Section 5). During the year, 18 judges whose 5-year contracts were not renewed collectively filed a petition before the Constitutional Court, which still was pending at year's end.
The 1994 Criminal Procedures Code 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, allowing victims, family members, and human rights groups to observe the process. Verdicts are rendered by three-judge panels. The Criminal Procedures Code introduced oral trials; however, only those attorneys who have graduated since that time have had real training in oral trials. The code also provides for language interpretation for those who require it; however, in practice this provision rarely is honored due to budgetary and other constraints (see Section 5). During the year, some new interpreters were hired, and the Public Defender's Office began hiring attorneys who speak indigenous languages and assigning them to areas where they can use their language skills to defend non-Spanish-speaking defendants. The Public Ministry, which is independent of 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 coplaintiffs. Lengthy investigations and frequent procedural motions by both defense and prosecution often lead to excessively long pretrial detention (see Section 1.d.). Courts showed little willingness to exercise discretion in dismissing frivolous or patently invalid motions. As a consequence, parties continued to use such motions as delaying tactics, frequently holding up trials for several months or even years.
Inefficiency and corruption in the courts, Public Ministry, and police continued 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 to conduct criminal investigations for improprieties or irregularities in cases under its jurisdiction. According to government statistics, through August 1999 (the last period for which figures were available), the Supreme Court imposed 1,215 sanctions against members of the judiciary for offenses ranging from simple impropriety to illegal conduct. Of those sanctions against judges, 1,159 were findings of impropriety, 66 were warnings, 9 judges were fired, and 1 was suspended. Magistrates received 13 findings of impropriety. The Public Ministry has been hampered in its efforts to investigate crimes and prosecute offenders by inadequate training and equipment, excessive caseloads, and insufficient numbers of investigators. Prosecutors remained susceptible to intimidation and corruption. In addition the Government's failure to clearly delineate responsibility for investigating crimes to either the PNC or the Public Ministry led to continued infighting and competition between these organizations, as well as the duplication of investigative resources. It was difficult to attract qualified personnel to the courts because of the low salaries offered, but a raise in the salaries of judges attracted greater numbers of higher caliber candidates.
On December 2, 1999, the new law on legal careers took effect, fulfilling a major objective of the Peace Accords. That law establishes a system to regulate the income, terms of office, promotion, training, disciplinary measures, and other activities of judges and magistrates, as well as support their professionalism and independence. The new law was designed to speed up trials and reduce corruption by recognizing and protecting competent judges while creating mechanisms to remove incompetent or corrupt ones. A Judicial Career Advisory Committee and a Disciplinary Committee were established, as called for by the new law, and a permanent training staff was hired for what is now called the Institutional Training Unit of the Judicial Career Council. It provides a mandatory 6-month training course for all newly appointed judges. The Council is responsible for selecting judges as well as disciplining them in accordance with the law's criteria for sanctions. The 1999 law also provided for a Peer Review Council, which has been in operation since mid-year. The panel reviews accusations brought by the public, litigants, or other sources, investigates the complaints, and takes administrative action where appropriate. The panel had reviewed dozens of cases by year's end, resulting in sanctions ranging from letters of reprimand to firing.
In cooperation with foreign donors, the Government continued its efforts to reform the judicial system, and there were some significant improvements throughout the year. For example, on July 18, a new Public Ministry Case Intake Unit was inaugurated in Guatemala City, which reduced the average waiting time for filing a complaint from several hours to approximately 10 minutes. A new Public Ministry Victim's Unit was inaugurated with doctors and nurses on call 24 hours a day to assist rape and other crime victims and to gather evidence for their cases.
One of the most successful reform efforts has been the creation of "justice centers," which bring together judges, public defenders, prosecutors, private law practitioners, police, municipal representatives, military officers, and civil society in a team approach to dispute resolution and problem solving. The centers have installed modernized docket and case filing systems in the courts, thereby increasing efficiency and public service while significantly decreasing corruption in the disappearance of case files. Centers are located in Zacapa, Quetzaltenango, Escuintla, Nebaj (Quiche), the Peten, Santa Eulalia (Huehuetenango), and Santa Cruz del Quiche (which opened in April). Additional centers in Huehuetenango, Coban, Chiquimula, Puerto Barrios, San Marcos, and Solola are scheduled to open by mid-2001. The Supreme Court extended the administrative model of the justice centers to include the criminal courts in the capital by creating a new Clerk of Court office, which has streamlined the processing of cases, increased transparency, and improved customer service. Under the old system, courthouses resembled marketplaces in which individuals could bribe a court official to "lose" their case file – a system that resulted in near-complete impunity for those with sufficient money. Individuals also could bribe the court to lose the file of a person in pretrial detention, thus assuring that that person would remain in jail indefinitely. With the implementation of the centralized, computerized case tracking system, the number of missing cases has dropped from approximately 1,000 per year to 3 cases since the new system was introduced. In all three of the misplaced cases, the individuals named in the complaints have been identified and are under investigation. Prospective judges and assistant judges attended special courses at the School of Judicial Studies, from which applicants were selected to fill vacancies in the judiciary. Since 1994 the Government has expanded the judiciary's presence throughout the country; at year's end, there were judges in more than 300 of the 331 municipalities around the country.
Despite some progress, much remains to be done to reform the judiciary and establish effective rule of law, as mandated by the Peace Accords. Many of the structural and procedural weaknesses of the judiciary would have been addressed by the proposed constitutional reforms that were defeated in a national referendum in May 1999. The National Commission for the Strengthening of Justice, which was created following the Peace Accords, increasingly is active; in July it announced its strategic plan, and subsequently created a number of subcommittees to work on implementation. The Commission met weekly during the year to consider reforms to the penal code in order to assist justices of the peace in resolving local disputes.
Beginning in August, residents of small towns in Quiche began holding customary law trials, allegedly based on Mayan indigenous law, in which community leaders meted out corporal punishment rather than lynch suspected wrongdoers (see Section 1.a.). For example, on August 17, leaders of several small communities near Zacualpa, Quiche, rounded up a crowd of 350 residents and summoned representatives from the PNC, Public Ministry, and the Human Rights Ombudsman's office to serve as witnesses. They then held a customary law trial and sentenced
2 brothers suspected of thievery to 25 lashes with a whip, shaved their heads, and made them promise never again to do anything to harm the community. The two men reportedly accepted responsibility for their crimes and their father was designated to administer the whippings. (One of the worst mass lynchings in 1999, in which five suspected gang members were killed by a mob that also took several PNC officers captive to prevent them from interfering in the lynching, also occurred in Zacualpa.) Government and law enforcement officials quickly criticized the common law trials as illegal and emphasized the need for all suspected criminals to be processed through the judicial system.
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; however, allegations persist that the authorities sometimes disregard these provisions. Elements of the security forces, specifically the EMP, reportedly continued to monitor private communications. The prosecutor and his staff in the Bishop Gerardi murder investigation continued to report wiretapping and surveillance, and other human rights organizations reported telephone anomalies that suggested wiretapping (see Section 1.a.).
On May 7, Edgar Gutierrez, head of the President's Secretariat for Strategic Analysis, announced the existence of a computer database containing names, personal information, and cryptic codes about more than 650,000 persons. The database appeared to have been compiled by military intelligence several years earlier and a copy remained on the SAE computer system. The SAE provided a copy to the Human Rights Ombudsman, who offered access to the database as a public service for those who wished to learn if their names appeared on the list.
The military continued to honor the 1994 presidential order to suspend all conscription, including forced recruitment, as the armed forces found it relatively easy to recruit young male volunteers from impoverished areas using pay and education incentives.
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 numerous credible reports that members of the press were targets of anonymous threats and intimidation; and there were two credible allegations of government-connected censorship. There were no reports of self-censorship.
In addition to regular and open criticism of government policies, the print media publicized communiques from human rights organizations, unions, and groups opposed to the Government or its policies. The press criticized the military and other powerful sectors. The press also regularly published stories on reputed drug traffickers, official corruption, and clandestine intelligence networks.
The Government prepared public information programs, which the radio and television stations were required to broadcast. The Government owns the rights to seven national television channels but used none of them for broadcasts.
All four of the country's national television stations are owned by a Mexican citizen, Angel Gonzalez, who plays a significant role in politics and provides free broadcast time to Guatemalan Republican Front politicians whom he supports. These channels are criticized strongly as being monopolistic, progovernment, and interested in broadcasting only uncontroversial news. In exchange for giving extensive free time to the Guatemalan Republican Front and denying access to then-ruling National Advancement Party, Gonzalez reportedly insisted that his brother-in-law, Luis Rabbe, be the FRG's candidate for mayor of Guatemala City. Despite the FRG's electoral sweep of most major offices, Rabbe was defeated. Portillo then named Rabbe as his Minister of Communications. By year's end, both Rabbe and the Communications Ministry were the subject of numerous corruption charges.
In February journalist Jose Eduardo Zarco, host of the popular television political news show "Evening Issues," claimed that his show had been forced off the air due to political pressure from the newly inaugurated Portillo Government. Specifically Zarco alleged that Communications Minister Rabbe pressured Angel Gonzalez to close the show because it was too critical of the Government. Gonzalez owns the television station that broadcast Zarco's show as well as several other stations, despite a law forbidding non-Guatemalans to own radio or television stations and laws to prevent monopoly control. Human Rights Ombudsman Julio Arango investigated and concluded that the Government wrongfully had forced the show off the air. Arango called for legislation to eliminate the media monopoly held by Gonzalez. The Government denied responsibility for the show's closure and invited Organization for American States (OAS) Special Rapporteur on the Freedom of Expression Santiago Canton to conduct an investigation into the incident.
On April 12, Canton arrived for a 3-day visit, after which he recommended a "serious investigation of the possible existence of a real monopoly on television stations open to public access," in reference to the control by a single individual of all of the private stations in the country. He also recommended that the Government implement clear regulations to prevent conflicts of interest between government officials and the media; suspend the auctions on radio frequencies until the Peace Accord regarding the rights of indigenous people is implemented; change the regulations governing television and radio advertising to ensure equal access; include the recommendations of civil society in legislation on information access that President Portillo promised to propose; and launch a campaign to promote and provide training in freedom of expression, including the passage of a law to protect the freedom of information. Based in part on Canton's recommendations, as well as a similar recommendation from the Historical Clarification Commission, on August 16, the Government introduced legislation in Congress to create a Freedom of Information Law. The bill would establish an ombudsman's office to defend the right to freedom of information, including the ability to petition the Government for personal records and other information. The bill languished in the FRG-dominated Congress at year's end.
In September popular radio talk show host Marielos Monzon was fired from Radio Sonora, allegedly for returning 3 days late from a trip. Monzon credibly alleged that she was fired because she earlier had rejected a demand from station management not to interview certain "leftwing" members of the Portillo Administration, nor opposition politicians.
Despite its Peace Accords pledge to enact reforms to the Radio Communications Law to make radio frequencies available for indigenous communities, the Government instead passed a law that created a public auction system for radio frequencies. In August when eight local radio operators were unable to purchase the frequencies that they already were using due to the extremely high cost, the Superintendent of Telecommunications fined them $10,000 (about 78,000 quetzals) for broadcasting without a license. MINUGUA concluded that the high cost of the public auction system was an effective barrier to rural indigenous access to radio frequencies.
On April 27, photojournalist Roberto Martinez of the newspaper Prensa Libre was killed while covering street demonstrations provoked by bus fare increases. Martinez allegedly was shot by private security guards, who opened fire on a group of demonstrators who were accompanied by a number of professional journalists carrying their photographic equipment. Two guards were remanded for trial, and remained in police custody at year's end (see Section 2.b.).
In May and thereafter, there were significant increases in the number of threats and other acts of intimidation directed against journalists, which coincided with an increase in threats against judicial personnel and human rights workers. Various reporters, columnists, and editors from several daily newspapers complained of telephone threats and other acts of intimidation. Personnel from one newspaper, El Periodico, began receiving numerous threats the day before publishing a series of articles on an alleged clandestine intelligence network within the military. Some reporters claimed that they were followed by vehicles with tinted windows and no license plates. Others alleged that they were the victims of telephone surveillance. The sudden and significant increase in the number of threats in April and May led many observers to believe that there was an organized campaign to intimidate the press by conservative elements affiliated with the military.
On September 30, 1999, the Chiquimula sentencing court found Jose Gabriel Lopez Leon and Neftaly Lopez Leon guilty of the 1997 murder of journalist Jorge Luis Marroquin Martinez; the court sentenced each of them to 30 years in prison. The same court found that the prosecutors in the case had presented inadmissible evidence against the suspected intellectual author of the crime, former Jocoton Mayor Manuel Ohajaca. The Public Ministry did not bring any new evidence against Ohajaca.
The Constitution provides for academic freedom.
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. The police acted with restraint, and the authorities sometimes negotiated the peaceful departure of the demonstrators. On April 24, a demonstration against an increase in public transportation rates turned violent, as rioters looted, burned buses, and destroyed property in downtown Guatemala City. On April 25, the police responded with tear gas and riot control measures, and arrested over 50 alleged participants. However, the violence continued on April 27. Many citizens criticized the police for not responding earlier and with more force to stop the violence. During the riot, private security guards killed three persons, including a journalist, and wounded several others (see Section 2.a.). On October 10, mass protests over land reform occurred, generally without incident. However, 1 demonstrator was killed by an unidentified assailant, and 10 protesters were injured in a clash with police in downtown Guatemala City.
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 formerly cumbersome and expensive procedure that was streamlined considerably in 1998. The URNG and several NGO's had alleged that this law particularly disadvantaged organizations representing marginalized social sectors, including indigenous groups.
c. Freedom of Religion
The Constitution provides for religious freedom, and the Government generally respects this right in practice. There is no state religion; however, the Constitution recognizes explicitly the separate legal personality of the Catholic Church. Members of a religion need not register simply in order to worship together. However, the Government requires religious congregations (other than the Catholic Church), as well as other nonreligious associations and NGO's, to register as legal entities in order to be able to transact business.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government respects them in practice.
The Director General of Immigration acknowledged publicly that extortion and mistreatment of persons attempting to cross illegally into the country are subject to extortion and mistreatment by government officials. Many observers believe that this mistreatment is underreported because illegal immigrants almost never have the capacity to lodge formal complaints, either with the authorities or against them; and there is little legal assistance available to such immigrants.
The Government grants refugee status and asylum 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 U.N. 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 Guatemalan refugees who had migrated to Mexico during the internal conflict concluded in 1999, bringing the total to over 40,000 since 1993. Guatemalans who still remain in Mexico do so by choice. Forty former refugee families returned voluntarily to Mexico in August, claiming that the Government was not providing for their fundamental needs. The Government of Mexico reportedly accepted their return. Over 1,500 other individuals indicated their intention to return to Mexico if the Government would not resolve their land issues and improve living conditions.
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 nine free elections. International observers concluded that both the November 1999 general elections and the December 1999 runoff presidential election were free and fair. During and after the November round of elections, political parties lodged numerous complaints of fraud and misconduct against each other, the vast majority of which were unaccompanied by evidence and appeared to be partisan attempts to disqualify opponents or annul election results. Due largely to unexpectedly high voter turnout, the Supreme Electoral Tribunal (TSE) was slow to report the November vote count. Public uncertainty over the delayed count contributed to violence and disturbances in a number of municipalities with highly contested local races. Lack of transportation, onerous voter registration requirements, and elections scheduled during the harvest season prevent many poor, indigenous, and rural persons from voting.
Voters elect the 113-member, unicameral Congress every 4 years using a system of proportional representation based on population, with deputies elected both from districts and from a nationwide list. The Congress had 91 deputies from districts and 22 from the national list. The 1999 elections involved 13 political parties, including two 2-party coalitions. Four parties and both coalitions won seats in the legislature, led by the FRG with a 63-seat majority, followed by the PAN with 21 seats, the Bancada Unionista with 16 seats, and the New Nation Alliance coalition, which includes the Guatemalan National Revolutionary Unity (URNG) party, with 9 seats. Other small parties hold a total of 4 seats. Voter participation in the 1999 elections was at a 13-year high. Congress can and does act independently of the executive, but fragmentation along party lines and a weak support and staff structure result in a legislature that is relatively ineffective. Nevertheless, Congress increased its relative power and independence under the leadership of president of Congress Efrain Rios Montt, a former de facto President and current leader of the ruling party, the FRG.
The former Guatemalan National Revolutionary Unity guerrillas met all legal requirements for qualification as a political party and competed in the 1999 general elections, winning nine seats in Congress as part of a coalition with a much smaller party.
On December 26, 1999, voters elected FRG presidential candidate Alfonso Portillo in a runoff election that international observers characterized as free and fair. He took office on January 14.
The new Government's efforts to implement the Peace Accords were limited as it struggled to organize itself and set policy priorities throughout the year. By year's end, the Portillo Administration established a new timetable for the implementation of the many elements of the Accords which had yet to be accomplished.
In May 1999, in a national referendum, voters rejected the entire package of 50 constitutional reforms approved by Congress in 1998, dealing a significant blow to the peace process. Only 20 percent of the electorate voted. The defeated amendments included 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. While ordinary laws could be enacted to accomplish many of the reforms, the constitutional reforms nonetheless held great symbolic value for the peace process.
There are no legal impediments to women's participation in politics and government, but women are underrepresented in politics. The major parties nominated and elected fewer female candidates for Congress in the 1999 elections; however, women's participation as voters was the highest ever, despite social traditions that inhibit voting by women. Nevertheless, women held some prominent political positions. Voters elected 8 women to Congress in November, and that number was increased to 13 as substitutes took the seats of members of Congress recruited to serve in the Executive Branch. One woman, Zury Rios de Lopez, is the Second Vice President of Congress. Women hold two seats on the Supreme Court and one on the Constitutional Court. There was one female minister in the Portillo Cabinet – the Minister for Culture and Sports.
The Constitution provides for equal rights for indigenous people. Some attained high positions as judges and government officials, including 14 members of the new Congress (15 were elected, but Aura Marina Otzoy Colaj, an indigenous woman, later was appointed Ambassador to Norway). There were 6 indigenous members in the 80-member Congress before the 1999 elections. Indigenous people still are underrepresented significantly in politics due to limited educational opportunity and pervasive discrimination (see Section 5). There are two indigenous members in the Cabinet of the Portillo Government.
4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
The Government permits local human rights groups to operate without restriction. 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 openly.
During the year, most NGO's credibly reported receiving threats or being intimidated by unidentified persons. From April to June there was a very significant increase in the number of threats against human rights workers, as well as journalists and judicial personnel, in comparison to 1999 levels (see Sections 1.e. and 2.a.). Most of these acts of intimidation involved anonymous telephonic threats, surveillance, and unknown individuals and cars following human rights workers or watching their workplaces or residences. In addition at least two murders and one disappearance allegedly were committed for political reasons, possibly related to the victims' human rights work. These cases included the killing of two government environmental workers in Izabal (see Section 1.a.), and the disappearance of Professor Mayra Gutierrez (see Section 1.b.). ODHAG personnel reported frequent and persistent death threats, surveillance, and other acts of intimidation, as did the prosecutors, two judges, and other judicial personnel working on the Bishop Gerardi murder case (see Section 1.a.). 1992 Nobel Peace Prize laureate Rigoberta Menchu and her staff reported numerous threats in connection with the genocide lawsuit that they filed in 1999 in a Spanish court against former de facto President Efrain Rios Montt and seven other former military or government officials. There were other incidents during the year of possible political intimidation of human rights workers; however, the reports could not be verified.
In addition to the increased number of threats, there was a series of break-ins or robberies in human rights NGO offices that some observers believed was part of an overall campaign to intimidate civil society. In March unknown persons broke into the offices of former presidential candidate and leftist leader Alvaro Colom, took files and computer information, and wrecked the office. They also defecated and urinated on tables and in hallways and scribbled political graffiti and insults on chalkboards. In May the National Coordinator of Widows of Guatemala, an NGO, reported what appeared to be an ordinary robbery of its daycare center in Santa Cruz del Quiche, which was followed a month later by a break-in at its Guatemala City office. On June 14, robbers stole three computers from a branch office of CALDH after drugging the night watchman. On September 4, four armed men entered the offices of FAMDEGUA around noon and demanded keys to vehicles and money. They stole a FAMDEGUA vehicle, four computers, two laptops, a television, and other electronic equipment. The computers contained sensitive information about human rights complaints, statistics, and information regarding specific human rights cases, such as the Dos Erres massacre (see Section 1.a.). On October 26, an armed group assaulted the employees and robbed the offices of a group called Women Let's Advance. The assailants raped one employee, and stole several computers and other office equipment as well as the money and jewelry of the employees. On December 22, 2 days after the press reported that ODHAG would be bringing a genocide suit against former de facto president and current president of Congress, Efrain Rios Montt, ODHAG's legal coordinator Mynor Melgar and his family were threatened, tied up, and robbed at gunpoint in their home. While the event contained elements of common crime, Melgar was threatened, and the perpetrators' actions showed premeditation in directing their actions to him specifically. While each of these incidents, if taken separately, could be explained as a common crime, the frequency of such incidents was a cause for significant concern.
Every 5 years, Congress elects the Human Rights Ombudsman from three candidates chosen by the Congressional Committee on Human Rights; the next election is scheduled to occur in August 2002. The Ombudsman reports to Congress and monitors the rights provided for by the Constitution. The PDH's rulings do not have the force of law. The Ombudsman, Julio Arango Escobar, operates with a large degree of independence from other branches of the Government, often passing judgment on controversial issues not normally considered human rights topics, such as bus fares and electricity rates. During the year, Arango continued to complain that the Congress neither funded his office adequately nor implemented his recommendations on human rights. The PDH's lack of funding limited the possibility of developing adequate investigative capabilities. Relations between the Ombudsman's office and MINUGUA were strained and distant. Upon the expiration of MINUGUA's mandate at the end of the year, the PDH was to take over MINUGUA's human rights verification function, but there was no visible preparation for the transfer of that responsibility by either party. MINUGUA said that its attempts to engage the PDH in meaningful preparations were rejected. On November 22, the Secretary General recommended to the General Assembly that the MINUGUA mission be extended for another year; it is expected to continue working on a reduced staff and budget through 2003 in accordance with the rescheduled Peace Accord implementation timeline.
COPREDEH continued to forge responsive and cooperative relationships with both domestic and international human rights monitors, often acting as a liaison between such groups and other government offices. Unlike in the previous year, COPREDEH took a more active approach in attempting to resolve cases before the IACHR. Due largely to the leadership of new COPREDEH president Victor Hugo Godoy, on March 3, the Government signed a series of precedent-setting agreements before the IACHR in which it accepted responsibility for several key human rights cases, including the Dos Erres massacre (see Section 1.a.); the murder of Myrna Mack Chang (see Section 1.a.); and the killing of street child Marcos Fidel Quisquinay by a live grenade placed in a bag of food. COPREDEH sought to negotiate amicable settlements with the victims or their survivors in these 3 cases and over 40 others pending before organs of the Inter-American human rights system. On March 29, the Government, represented COPREDEH, designated 46 cases that had been submitted to the IACHR as priority cases for seeking settlements with victims or their survivors. Similarly, on August 9, President Portillo signed an agreement with the IACHR in which he acknowledged the Government's general responsibility to pay reparations to victims or their survivors of human rights abuses committed during the internal conflict in 10 cases. On November 30, the Government, in compliance with a decision by the Inter-American Court on Human Rights, agreed to compensate the families of the murdered street children (see Sections 1.a. and 5). Also on November 11, President Portillo accepted the Government's responsibility in several other human rights cases, including the La Exacta Farm case (see Section 1.a.). During the year, the Government signed agreements covering 52 cases before the IACHR, out of a total of approximately 130, in which it pledged to indemnify victims or their survivors and investigate and prosecute those responsible. By December 5, the Government had entered into negotiations on a total of 79 cases before the IACHR. Human rights observers described this as a sign of a fundamental shift in Government policy regarding human rights.
MINUGUA maintained a human rights verification staff of approximately 70 persons, with 13 regional or subregional offices to monitor implementation of the human rights provisions of the Peace Accords and strengthen democratic institutions. MINUGUA stated that the Government generally cooperated with its investigations but cited occasional isolated incidents in which government officials or institutions had obstructed its efforts.
In April the Government hosted a visit by OAS Special Rapporteur on the Freedom of Expression Santiago Canton, whose visit focused on allegations of government censorship of a television news show and an alleged media monopoly by a Mexican businessman (see Section 2.a.).
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. However, in practice the Government frequently is unable to enforce these provisions, due to inadequate resources, corruption, and a dysfunctional judicial system.
Violence against women, including domestic violence, remained common among all social classes. The 1996 Law on Domestic Violence provides 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 the issuance of restraining orders against alleged aggressors and obligates the PNC to intervene in situations of domestic violence. Statistics vary significantly. The Procuracy General of the Nation registered 1,664 complaints in the first 10 months of the year, compared with 1,548 complaints in all of 1999. During the first half of the year, the PDH received 1,535 cases of abuse against women. In 1998 the PDH reported approximately 2,600 complaints of domestic violence nationwide. Of the total number of cases of domestic violence of all types (including child abuse), only 33 have gone to trial, resulting in 28 convictions. On July 28, an appeals court upheld a 2-year prison sentence for spousal abuse against Amado Morales. The decision is only the second such conviction in the country's history – the first reportedly took place 8 years ago.
Complaints of spousal abuse continued to rise due, at least in part, to increased nationwide educational programs, which have encouraged women to seek assistance. Judges may issue an injunction against an abusive spouse or companion, and the police are charged with enforcing such injunctions. The Women's Rights Department of the PDH and various NGO's provided medical and legal assistance and information on family planning. The office of the Ombudsman for Indigenous Women, led by Juana Catinac Xom de Coyoy, was established in 1999 and began to provide social services for victims of domestic or social violence, as well as mediation, conflict resolution, and legal services for indigenous women. It formed a coordinating committee and other advisory boards and representative assemblies from each of 24 linguistic groups. It opened its first branch offices and spent much of its first year resolving personnel, equipment, and organizational issues. On November 28, the Government announced the formation of the National Coordinator for the Prevention of Domestic Violence and Violence Against Women (CONAPREVI), which is to be chaired by the Secretary for Women's Affairs, and include public sector representatives from the Public Ministry, the judiciary, the National Statistics Institute, and three representatives from the private sector Network Against Violence Against Women.
Victims rarely reported criminal sexual violence, although the number of complaints of such offenses continues to increase significantly. PNC statistics showed 323 rapes in 1999, (the latest year for which statistics were available), compared to 220 rapes in 1998. Many observers believed that this increase did not reflect an increase in the number of rapes committed, but rather an increased willingness on the part of victims to come forward, greater public confidence in the PNC, and improved record keeping of crime statistics. Despite these advances, relatively few rape cases went to court, in large part because police have little training or investigative capacity for such crimes and because many rape victims were reluctant to report and prosecute such crimes. Unofficial statistics suggested that there were 80 convictions during the year for rape or related crimes in 1999, compared with 67 convictions in 1998. In July the Public Ministry created a Special Victim's unit, staffed 24 hours a day with doctors and nurses with rape test kits to assist rape victims in gathering evidence to use against their attackers. The law allows a rapist to be exonerated when the victim is at least 12 years old and agrees to marry him, but the Public Ministry must approve the marriage when the victim is below the age of 18.
Sexual harassment in the workplace is common.
On May 23, the Portillo Administration announced the creation of a Secretariat for Women's Affairs. The Secretariat operates under the direction of the President, advising him on the coordination of policy affecting women and their development.
The Constitution asserts the principle of equality between the sexes. Nonetheless, in practice women face job discrimination, are less likely to win management positions, and on average receive significantly lower pay than men. Some women were subjected to preemployment pregnancy tests. Women 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 generally are lower. Women may own, manage, and inherit property on an equal basis with men. In 1999 the Congress repealed a rarely enforced Civil Code article that enabled a husband to deny his wife the right to work outside the home and an article that placed the husband in charge of administering the family's property.
The National Women's Forum, inaugurated in November 1997, continued to promote women's issues by participating in local and regional forums organized by political parties during the general election campaign. In May the Forum presented its 2-year plan for development and women's issues to the Government. The plan sets specific targets for development, including literacy, expanded primary school coverage, scholarship programs, and integrated women's health. In each of the 24 linguistic communities, women's groups are responsible for implementing and monitoring the Forum's policies and programs.
The Constitution charges the Government with protecting the physical and mental health, as well as the moral well-being, of minors. However, despite these provisions, the Government in the past has not devoted sufficient resources to ensure adequate educational and health services for children. Approximately 80 percent of children under the age of 18 live in poverty. The Government budgeted approximately $345 million (2.69 billion quetzals) for education and $178 million (1.39 billion quetzals) for health care; however, the percent of the country's GDP that was spent on education decreased from 2.46 percent of GDP in 1999 to 2.3 percent during the year.
A MINUGUA report, issued on December 11, found that 51 percent of the population is under 18 years old; of this group, 83 percent live in poverty; 46 percent of children under the age of 5 suffer chronic malnutrition and another 24 percent suffering periodic malnutrition. There are approximately 200,000 orphans throughout the country, approximately 10,000 children in gangs, and 6,000 children living on the streets. A total of 444 children have disappeared since 1996.
The Constitution provides for compulsory education for all children up to the 6th grade. However, less than half the population actually receives a primary education, and only 3 of 10 students who begin primary school complete it. One-fourth of all children do not attend school. These are concentrated in rural areas, and a disproportionate number are indigenous. Only one of eight girls who begin school graduates from the 6th grade. According to a December MINUGUA report, the average Guatemalan child receives 2.3 years of education; however, when only indigenous children are considered, the average drops to 1.3 years of education. Children in rural and indigenous areas are less likely to complete primary school.
Approximately 2.1 million children between the ages of 5 and 12 were enrolled in schools in 1999, according to the Ministry of Education. The Ministry also reported that 3,461 communities had access to educational services for the first time. The PDH reported in 1999 that 38 percent of elementary school-age children and 79 percent of secondary school-age children do not attend school. There were special initiatives to promote the education of girls, and about 49,000 girls received incentive scholarships from PRONADE, a privately run program under the auspices of the Ministry of Education, during the year, in addition to approximately 12,000 scholarships from other government institutions and international organizations.
Most estimates indicated that reports of child abuse continue to increase, although there are few statistics available to measure the problem. The Procuracy General reported 1,126 cases of child abuse as of December 5, compared to 1,478 cases in 1999 and 1,172 cases in 1998. A total of 70 cases reported during the year concerned physical abuse; the remainder involved sexual or psychological abuse. Out of a total of 4,250 cases of domestic violence, the PDH investigated 126 complaints of child abuse during the year. The largest percentage of these complaints were for physical, emotional, and sexual abuse, as well as neglect. A Permanent Commission for Children and Youth investigates cases of mistreatment of children. The Social Secretariat for the Welfare of Children has oversight for the children's welfare program, treatment and training for children, and special education assistance for children. The Secretariat provides shelter and assistance to children who are victims of abuse; however, due to lack of resources, these children sometimes are placed with other youths who have committed crimes.
Abuse of street children remained a serious problem in major cities (see Section 1.c.). Most credible estimates put the number of street children at approximately 6,000 nationwide, with about 3,500 of these youths concentrated in Guatemala City. The NGO Casa Alianza increased its estimates of the number of homeless persons to 25,000, of whom 8,000 are children. Approximately 1 in every 1,000 children lives on the street. The majority of street children ran away from home after they were abused. Criminals – reported to include private security guards and corrupt police or military personnel – often recruited these children into thievery or prostitution rings. According to Casa Alianza, drugs, prostitution, and gangs posed the greatest danger to this vulnerable group during the year. Most violence against street children was committed by individuals, private security guards, and other street children, not by police or other government forces. There was only one report of abuse of street children by PNC officers, in which several officers allegedly threatened five street children. 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 maintains one shelter for girls and one shelter for boys in Guatemala City; these shelters provide housing for the homeless and incarceration for juvenile offenders. A new phenomenon developed as street children began giving birth to a second generation of street children, dubbed "street babies." Casa Alianza reported three cases of kidnaping or forced disappearance of street babies by unknown individuals.
On November 30, the Government, in compliance with a decision by the Inter-American Court of Human Rights, agreed to compensate the families of the street children who were killed between 1990 and 1995 (see Section 1.a.). In addition to the modest $11,500 per victim compensation, the Government also promised to develop programs to prevent the abandonment of and violence against street children.
In August ODHAG issued its report on children missing in the armed conflict (see Section 1.b.). A report by ODHAG issued in September found that children accounted for 20 percent of the victims of arbitrary extrajudicial executions during the armed conflict, and that 27 percent of the victims of sexual abuse committed during the armed conflict were children.
On February 29, Congress indefinitely suspended a proposed new Minors' Code due to strong political opposition from certain powerful sectors, reportedly led by the adoption attorneys who receive large financial gains from nonjudicial adoptions that would have been eliminated under the new code. Other opponents, including religious leaders, argued that the code derogated parental rights and threatened the integrity of the family. The bill was to have become law on March 3. Debate on changes to the code continued during the year.
COPREDEH 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. The Government continued its program to train instructors to educate civil society groups and the public about children's rights.
Sexual exploitation of children is a growing problem, including child prostitution and the trafficking of children for purposes of prostitution. The Ministry of Labor noted an increase in child prostitution in the towns along the borders with Mexico and El Salvador. Along the border with El Salvador, many child prostitutes were brought into the country from El Salvador, Nicaragua, and Honduras by organized rings, who force the children into prostitution (see Section 6.f.). The proposed Minor's Code would have mandated stricter punishments for parents who force their children into prostitution, and for adults who solicit child prostitutes.
People With Disabilities
The Constitution provides that the State should protect disabled persons. Nonetheless, physically disabled persons are discriminated against in education and employment practices, and few resources are devoted to combat this problem or to assist the disabled. The PDH continued to draft proposed regulations to implement the provisions of the 1996 Law on Protection of the Elderly and the Law on Attention to Disabled Persons, which mandates equal access to public facilities, prohibits discrimination based on disability, and provides other legal protections. The law defines a disabled person as one whose physical, mental, or emotional deficiencies limit performance of normal activities. It stipulates equal opportunity for disabled persons in health, education, work, recreation, sports, and cultural activities. It also provides that all disabled persons receive the benefits of labor laws and social security and have the right to work. In addition the law establishes equal education opportunities, the requirement that buildings meet access codes, and the right to equal pay. While implementation of the new law has been slow, a National Council for the Disabled, composed of representatives of concerned government ministries and agencies, met regularly to formulate regulations needed to implement the legislation.
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. In 1999 the Arzu Government created the office of Ombudsman for Indigenous Women and appointed Juana Catinac Xom de Coyoy as its first Director.
Indigenous people constitute over one-half the population but remain largely outside of the country's political, economic, social, and cultural mainstream. An October U.N. report stated that 73 percent of indigenous persons, and 72 percent of those living in rural areas, face an institutional lack of economic possibilities and limited access to basic services. The 1994 census, the most recent, stated that 42.8 percent of the population is indigenous; however, most observers believe that this figure is low and that indigenous people constitute a majority of the population. There is no single indicator of indigenous status, and there are at least 22 separate Mayan ethnic groups, each with its own language. In addition to the indigenous Mayan groups, there is an indigenous Xinca community of some 6,000 persons. The Garifuna, descendents of Africans brought to the Caribbean region as laborers and who later migrated to South and Central America, are a separate minority group.
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 continued to organize themselves into interest groups to promote bilingual education, women's rights, and community development. Politically, the indigenous groups remained fragmented, and there was little agreement among the Mayan groups on common goals or strategies to increase their political representation and power. The Government devoted marginally increased resources to bilingual education. Contrary to previous years, there were no reports of schools denying children the right to wear traditional indigenous dress, a common complaint under the previous administration.
Rural indigenous people have limited educational opportunities and thus have fewer employment opportunities. Many indigenous people are illiterate or 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 24 indigenous languages. In 1998 the Indigenous Languages Officialization Commission issued a report, in which it recommended that a variety of public services be provided in the four most widely spoken indigenous languages (K'iche', Q'eqchi', Mam, and Kaqchikel), with a lesser degree of services provided in less widely spoken indigenous languages.
Indigenous people arrested for crimes often are 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. In 1999 there were 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 were concentrated in former conflict areas of the country; more interpreters were in training. The Public Defender's Office began hiring attorneys fluent in indigenous languages and assigning them to areas where they could serve as translators in addition to defending their clients. The Government also made efforts to recruit justices of the peace who are bilingual in Spanish and an indigenous language. In January 1998, several community courts were created in primarily indigenous, rural areas to decentralize justice and incorporate customary Mayan law for minor offenses. In August there were several incidents in which indigenous common law courts were convened to hand down sentences, including whippings and other forms of corporal punishment, against suspected criminals and other delinquents (see Section 1.e.). The University of San Carlos offers a postgraduate degree in indigenous customary law. Judges, prosecutors, public defenders, judicial translators, and others already have received the degree, which emphasizes criminal law and human rights.
Contrary to the previous year, no indigenous leaders disappeared during the year. There was one credible report of an indigenous leader killed for political reasons, Jose Mendoza Garcia (see Section 1.a.).
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. Although internal intelligence services allegedly monitor the activities of politically active union leaders, there is no direct state interference in union activities. In June the Labor Ministry proposed a package of major reforms intended to strengthen the Labor Code's protection of worker rights. In December the Labor Ministry proposed a revised Code of Labor Procedure aimed at streamlining labor dispute litigation. The proposed Labor Code reforms would increase the fines for firing workers who organize unions and define the mission of the Labor Ministry as that of "carrying out a national policy of defense and development" of worker rights. The reforms were pending at year's end. The most recent 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 labor law. However, enforcement of the law is weak. Despite continuing credible efforts to enlarge it, the labor inspection system remains ineffective, inadequate, and corrupt. All workers have the right to form or join unions, including public sector employees, with the exception of members of the security forces. However, retaliation by employers – including firing, intimidation, and sometimes violence – against workers who try to exercise internationally recognized labor rights is common and usually goes unsanctioned. In its November report to the International Labor Organization (ILO) Governing Body, the ILO's Committee on Freedom of Association detailed five cases of dismissal of workers for unionizing activity in which courts ordered the workers reinstated but the employers never complied. In some of these cases, appeals and reappeals by employers of court decisions against them have continued the proceedings for years, revealing the inability of the courts to dismiss frivolous appeals and have their decisions enforced.
The law provides for a system of labor and social welfare courts to rule on violations of the Labor Code. Employers often failed to comply with the decisions of the Labor Courts and suffered no effective sanctions for having done so. Throughout the economy, employees were reluctant to exercise their right of association for fear of reprisal by employers. Workers had little confidence that the responsible executive and judicial institutions would defend effectively their rights as employees when employers violated those rights. In addition the weakness of labor inspectors, the failures of the judicial system, poverty and lack of education, the legacy of violent repression of labor activists during the internal conflict, and the deep-seated hostility of the business establishment towards independent and self-governing labor associations constrained the exercise of worker rights. In its 4th Report on the Peace Process, MINUGUA noted that "genuine trade union freedom does not exist" due to antiunion violence.
According to the Labor Ministry, less than 2 percent of the work force (about 60,000 persons) belong to labor organizations. The approximately 1,300 registered unions and 400 company-sponsored "solidarity organizations" were independent of government and political party domination. However, the International Confederation of Free Trade Unions (ICFTU) in a September 1999 report described the solidarity organizations as "set up by employers to undermine trade unions." The administrative process for unions to obtain legal status has been simplified progressively over the past decade. In 1996 the Ministry of Labor reduced the number of steps within the Ministry for consideration of union applications and established strict timetables for approval or denial; the time for the procedure was reduced to 20 days from 60. During the year, the Labor Ministry expanded its program to assist unions with their applications. During the year, the Ministry also simplified the process for forming federations and confederations. The Labor Ministry granted legal status to 42 unions during the year. In 1999 there were 1,389 registered unions, including 401 unions in the public sector and 988 unions in the private sector.
On October 13, 1999, a group of men, many of them armed, took control of the union hall of the SITRABI banana workers union in the town of Morales, Izabal. There were credible reports that leaders of the vigilante group repeatedly threatened to kill some of the union leaders. During the incident, which lasted over 8 hours into the morning of October 14, about 20 rank-and-file union members reportedly were held captive for much of that time on the bus in which they had come to the union hall. There were several credible reports that armed men forcibly entered the home of one of the union leaders and made him go with them to the union hall. Various union leaders and rank-and-file members were shoved and struck. Union leaders were forced to sign letters of resignation from their positions in the union and from their jobs. The Ministry of Labor immediately declared the coerced resignations to be invalid. MINUGUA's report on the incident called it "one of the most serious violations of human rights since the signing of the Peace Accords."
Despite the availability of dozens of potential witnesses, and therefore little doubt as to the essential facts, the investigation and indictment process that followed was lengthy and slow to progress. According to MINUGUA, law enforcement failures attendant to this incident included police inaction as the incident took place, lapses in applying the Code of Criminal Procedures during the indictment phase, and a weakening of the charges finally placed against the accused. In June the first instance court rejected charges of abduction, intimidation, aggravated trespass, and aggravated illegal detention, which were sought by the prosecution. The first instance court arraignged 24 defendants on charges of trespass, illegal detention, and coercion. The trial date is scheduled for spring 2001.
The ILO's Governing Body, sitting as the Committee on Freedom of Association, published a detailed account of these events in its report released in November. The report noted that "the BANDEGUA enterprise denies any links with the acts of violence while the trade union accuses it of being responsible for them." (SITRABI is the union of BANDEGUA employees; BANDEGUA is the Guatemalan subsidiary of Del Monte Fresh Produce). In the background to this violence against these union leaders was the firing of 897 workers by BANDEGUA in September 1999, in violation of the contractual agreement "in force between the enterprise and the trade union." In October the Ministry of Labor facilitated the completion of a collective bargaining agreement between the SITRABI union and the lease holding contractors of BANDEGUA who had taken up operating the plantations on which the 918 workers had worked as direct-hire BANDEGUA employees.
Workers have the right to strike, but labor code procedures for having a strike recognized as legal are cumbersome. Labor organizers have criticized the law, which requires that two-thirds of the work force must approve a vote to strike, prohibits strikes by agricultural workers at harvest time, and allows the Government to prohibit strikes that it considers seriously harmful to the national economy. Employers may suspend workers or fire them for absence without leave if the authorities have not recognized their strike as legal. The strike regulation law calls for binding arbitration if an impasse has been reached after 30 days of negotiation.
In 1996 Congress approved a law that further restricted the right to strike for workers employed in a range of essential public services, including urban and interurban transport, mail, and telegraph. Unions had opposed the law strongly, and some members of Congress called the measure unconstitutional and contrary to obligations under ILO conventions. However, the Constitutional Court declared it constitutional in 1997. This essential services strike legislation gives the President the authority to intervene forcefully should strikes threaten the orderly functioning of society. The Labor Code reforms proposed in June would undo the provisions of this law that the ILO regards as incompatible with ILO standards with respect to the right to strike. The proposed reforms would reduce the number of workers required to call a legal strike to a simple majority. The proposed reforms would limit essential services to health, communications (including air traffic control), and public transport, and provide for legal strikes in those sectors so long as minimum services are maintained.
There were no significant strikes during the year.
The law protects workers from retribution for forming unions and for participating in trade union activities, but enforcement of these provisions is inconsistent. Many employers routinely seek to circumvent labor code provisions in order to resist unions, which they view as disruptive and as a challenge to their full control of the workplace. An ineffective legal system and inadequate penalties for violations have hindered enforcement of the right to form unions and participate in trade union activities. Although the Labor Code provides that workers illegally fired for union activity should be reinstated within 24 hours, in practice employers often filed a series of appeals or simply defied judicial orders for reinstatement. Penalties for defying such orders were increased somewhat in the 1992 Labor Code reform and further in a decree that went into effect in June 1998. The Labor Ministry has worked to "promote the restructuring of labor relations in enterprises by encouraging labor-management cooperation" and bring about a "culture of negotiation" as called for by the Peace Accord on Social and Economic Aspects and the Agrarian Situation. However, productive, good-faith negotiations between employer and worker representatives have been the exception rather than the rule. The majority of unions that engaged in collective bargaining during the year reported that employers increasingly rejected the underlying premise of collective bargaining – that power in the workplace can be shared equitably according to a contract between the employees and company management.
Impunity for acts of intimidation and violence against trade union members remains a problem. In its Fourth Report on the Peace Process, MINUGUA noted that "genuine trade union freedom does not exist" due to antiunion violence. In its November report, the ILO noted that 12 murders, some of which date back to 1995, of union leaders and union members, have not yet been investigated credibly nor or effectively prosecuted. In June Mixco city councilman Francisco Rodas left the country, alleging persistent, credible death threats following his campaign to have 400 fired municipal workers reinstated by Labor Court rulings. Mixco Mayor Elmer Morales fired the workers in the months after he assumed office in February and was the suspected source of the threats.
An active "solidarity" movement claims to have approximately 170,000 members in about 400 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 Labor Code stipulates very clearly that trade unions have an exclusive right to bargain collectively on 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 were credible reports that some of these associations did not always adhere to democratic principles in their formation and management and that workers were unable to participate fully and freely in decision-making. Similar credible charges were made against some trade unions.
The Human Rights Ombudsman's office for economic and social issues receives complaints related to violations of internationally recognized worker rights. Union leaders and workers filed over 100 complaints with the PDH in 1999, and the Ombudsman has made 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 resolve 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 constrained by legal restrictions, according to a report by the ILO Committee of Experts (COE). The COE called on the Government to remove the legal requirement that a collective bargaining agreement be submitted to the Government and that it have two-thirds support of union members. The COE report also lists seven other reforms necessary to provide for full exercise of the right to organize and bargain collectively. The practice of collective bargaining also is limited by the weakness of the labor 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 collective bargaining; and management's aversion to sharing power with worker associations. Both management and labor honored well-written collective contracts at some firms; however, in others management, and sometimes labor, chose to ignore the contractually binding collective bargaining agreements. Between 1995 and 1999, 153 collective bargaining agreements were concluded between employers and employees and registered with the Labor Ministry. Nearly all of these agreements remained in force at the end of the year; although some had expired and were under renegotiation. Most workers, even those organized in trade unions, do not have collective contracts to cover their wages and working conditions nor do they have individual contracts as required by law. According to a study released in November by the Association for Research and Social Studies, only 10 percent of workers have a contract duly registered with the Labor Ministry as required by law.
Employers legally cannot dismiss workers for helping to form a trade union; workers file complaints in this regard with the labor inspectors for resolution; however, the Government does not enforce this law effectively. 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 Labor Code prohibits employers from firing workers for union organizing and protects them for 60 days following the official publication of approval of the union. The Labor Code also prohibits employers from firing any member of the executive committee of a union and also protects them for 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. However, the Government does not enforce these laws in practice.
Despite governmental, bilateral, and multilateral efforts to restructure and modernize the labor court system, the system remained ineffective. There are 20 labor courts, including 7 in the capital and 13 elsewhere around the country. An additional nine courts deal with labor issues as part of their jurisdiction. The weakness of the judicial system as a whole, the severe shortage of competent judges and staff, and a heavy backlog of undecided cases all contribute to the labor courts' lack of credibility and effectiveness. The small number of competent and motivated labor inspectors, and the lack of training and resources devoted to detecting and investigating Labor Code violations, compound the weakness of the labor courts. However, government efforts to improve the labor inspection system continued. At year's end, there were 80 full time, professional labor inspectors on the rolls of the Ministry of Labor. In September the Ministry hired another 70 inspectors under temporary contracts. The Ministry of Labor continued to increase its rate of inspections and fired some incompetent or corrupt inspectors. Ministry figures show that over 2,000 investigations or inspections were conducted between January and August 1999. A portion of these inspections was a successful campaign to improve compliance with labor standards in the in-bond processing for export or "maquila" sector. In addition some represented an effort to ensure compliance with minimum wage provisions. As a result of this revitalized labor inspection effort, the Labor Ministry filed 1,136 complaints for uncorrected labor law violations during the year, which was a record number.
The Ministry of Labor has reorganized its labor inspection system to permit some complaints to be heard at the Ministry of Labor rather than requiring that inspectors travel to each work site. The Ministry instituted a set of complaint assistance, small claims mediation, and informational initiatives designed to provide better services to workers. The Ministry continued its educational campaign on worker rights (especially the rights of minors and women), which included a campaign of radio announcements and the provision of some documents in indigenous languages. In an effort to improve enforcement of the Labor Code outside the capital, the Ministry of Labor continued to decentralize its operations. Seven of the Ministry's offices outside the capital have been accorded regional authority. These regional offices, in addition to labor inspectors, also include specialists in women and workplace issues, management-worker relations/conflict resolution, and minor workers/child labor issues. The Labor Ministry plans to give these regional offices supervisory authority over branch offices in the departmental capitals of each region.
Labor laws and regulations apply throughout the country, including in the few export processing zones (EPZ's); however, they are enforced weakly. (Maquilas that make garments for export operate under an EPZ-like regime, although they are not located in distinctly set-apart areas.) The laws governing the EPZ's are not discriminatory on the subject of organizing trade unions or collective bargaining. Union leaders often blamed their inability to organize workers in these zones on employer pressures and unofficial restrictions on their access to the EPZ's. While labor standards in the EPZ's were no different from those found outside the zones, actual working conditions were often better.
c. Prohibition of Forced or Compulsory Labor
The Constitution bars forced or compulsory labor, and the practice generally does not exist. The ILO COE urged the Government to ensure the rapidity of judicial processes and inquiries concerning compulsory labor and to ensure the imposition of penalties and the strict enforcement of laws. The law does not prohibit specifically forced or bonded labor by children, but they are covered by the general constitutional provision. Forced or bonded labor by children generally did not occur; however, children were trafficked for the purpose of prostitution (see Sections 5 and 6.f.).
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. A MINUGUA report, issued on December 11, found that 34 percent of children between the ages of 7 and 14 work. 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, and from working in unhealthy or dangerous conditions. However, between 3,000 and 5,000 children were employed in the illegal cottage-based fireworks industry. The Labor Ministry estimated that approximately 10 percent of the children in this industry work illegally in factories, while younger children, under the age of 14, typically work at home on piecework taken in by their families. On July 12, an explosion in a family-run home fireworks workshop killed three siblings, including a 13-year-old; all three were working in their father's illegal fireworks factory in San Raymundo Sacatepequez. The accident was due to carelessness and inexperience handling explosives; and was typical of accidents that occur regularly in the informal cottage fireworks industry.
Laws governing the employment of minors are not enforced effectively, due to the shortage of qualified labor inspectors and the weakness of the labor court system. The Association for Girls and Boys in Central America estimates that approximately
2 million children work. The majority of child laborers work in agriculture (family farms, coffee, and sugar cane harvesting), while others work in domestic service, construction, various family businesses, stone quarrying, rock-breaking, fireworks manufacturing, shining shoes, begging, performing in the streets, or other jobs. According to Labor Ministry statistics, between 1995 and 1999, 507 permits were issued authorizing the employment of minors. The Ministry of Labor's efforts to reduce the number of these permits issued had the unintended effect of increasing the number of minors applying for work with falsified age documents. Many children under the age of 14 work without legal permission and are open to exploitation. They generally receive no social benefits, social insurance, vacations, or severance pay, and earn 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. In 1992 the Government formed the Child Worker Protection Unit within the Ministry of Labor. Late in the year, the Ministry of Labor, with the support of a group of NGO's, finalized a National Plan for the Prevention and Eradication of Child Labor and Protection of Adolescent Workers. Implementation of the 1997 Children's and Minor's Code has been suspended indefinitely because of political controversy over its provisions (see Section 5). 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. Education is compulsory for all children up to the 6th grade. The law does not prohibit specifically bonded labor by children, but they are covered by a constitutional prohibition on forced or compulsory labor. Bonded labor by children generally did not occur; however, children were trafficked into prostitution (see Sections 6.c. and 6.f.).
e. Acceptable Conditions of Work
The law sets minimum wages; however, noncompliance with minimum wage provision in the rural and informal sectors is widespread. The Ministry of Labor oversees a tripartite committee, which includes formal sector representatives of labor and management, and makes recommendations for increases in the minimum wage. In the event that agreement is not possible, the Government may decree such increases. The Executive Branch promulgated the most recent minimum wage increase by decree, after the tripartite commission was unable to reach a consensus, and it took effect on December 16. This decree raised the minimum daily wage for agricultural work by $0.45 (3.46 quetzals) to $3.24 (25.08 quetzals). It raised the minimum daily wage for service, industrial, and government sector work by $0.49 (quetzals 3.82) to $3.57 (27.67 quetzals). In March the National Legislature mandated by decree an incentive bonus that augments the minimum wage. This decree increased the minimum wage by ordering that an incentive bonus be paid for each hour worked – $0.09 (0.6725 quetzals) per hour for agricultural workers and $0.08 (0.64375 quetzals) per hour for industrial and other workers. This raises the legal minimum wage for a regular 8-hour day to $3.93 (30.46 quetzals) for agricultural work and $4.32 (32.82 quetzals) for service, industrial, and government sector work. The minimum wage was not sufficient to provide a decent standard of living for a worker and family. According to the UNDP, at least 80 percent of the population live below the poverty line, including approximately 60 percent of those employed. In November MINUGUA reported that a minimum wage adequate for feeding a family of six would have to be nearly 80 percent higher than the current minimum wage. MINUGUA also reported that a minimum wage also adequate for clothing, sheltering, and educating a family of six would have to be nearly 225 percent higher than the current minimum wage.
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 Labor Code requires a weekly paid rest period of at least 24 hours. Trade union leaders and human rights groups charge that workers sometimes were 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. Many of the provisions of the applicable law – which dates back to 1957 – are archaic, making enforcement problematic. During the year, as part of its effort to address this situation, the Ministry of Labor participated in a number of international initiatives intended to sensitize employers and workers to health and safety risks in the workplace. Enforcement of occupational health and safety standards that do exist and could be applied reasonably is weak. When serious or fatal industrial accidents occur, the authorities often fail to investigate fully and to assign responsibility for negligence, if any. Employers rarely are sanctioned for having failed to provide a safe workplace, although the authorities did suspend one maquila operation for safety shortcomings, and threatened about a dozen others, in some cases repeatedly, with a suspension of operations if they failed to improve safety conditions. The Labor Ministry provides training courses for labor inspectors in health and safety standards, and has given such training a higher priority despite scarce resources. Legislation requiring companies with more than 50 employees to provide on-site medical facilities for their workers has not been well enforced; however, most large employers provided such facilities for their employees. 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.
f. Trafficking in Persons
The law does not specifically prohibit trafficking in persons unless that trafficking involves entry into or departure from the country for the purpose of prostitution. In addition an immigration law that came into effect in January 1999 made alien smuggling a crime punishable by imprisonment. The law mandates sentences of 5 to 8 years in prison for those found guilty of "promoting or facilitating the illegal entry of persons." Prostitution is not illegal; there are certain health code requirements for persons engaging in prostitution. Pimping and inducing a person into prostitution are crimes that can result in either fines or imprisonment, with heavier penalties if minors are involved. Trafficking in women and children, primarily for the purpose of prostitution, is a growing problem.
The country is a significant transit country for alien smuggling, both from neighboring Latin American countries and from China, Taiwan, and south Asia; aliens often are smuggled to the United States. Traffickers use force, coercion, fraud, and deception. In one instance, Chinese male victims apparently agreed to debt bondage to pay off their transportation costs, while female victims, some of whom were under the age of 18, apparently were being taken to the United States to work as prostitutes. The victims were told that their families in China would suffer if they broke the debt bondage agreement.
The Defense of Children's Rights unit in the PDH and the Minors' Section of the Public Ministry regularly investigate cases of trafficking. Officials in the Labor Ministry also raise the issue with the police and social welfare agencies as part of their efforts to combat child labor and child exploitation. There are no programs specifically designed to provide shelter or rehabilitation to victims of trafficking. NGO's that focus on women and children's rights often help victims of trafficking and work to educate the population about the dangers of trafficking; however, there are no NGO's that focus solely on trafficking.
The Ministry of Labor, UNICEF, and the U.N. Special Rapporteur on the Sale of Children, Child Prostitution, and Child Pornography, who visited the country in July 1999, have noted a marked increase in child prostitution over the past 2 years in the towns along the borders with Mexico and El Salvador. Along the border with El Salvador, many child prostitutes were brought into the country from El Salvador, Nicaragua, and Honduras by organized rings, who force the children into prostitution. In its annual report for 1999 on the state of children, ODHAG clearly identified the growing problem of child prostitution as linked inextricably to that of trafficking in persons. The report notes that no child prostitute "got there alone" without inducement and exploitation by adults.