GUATEMALA

Follow-up - State Reporting

            Action by Treaty Bodies, Including Reports on Missions

CCPR A/58/40 vol. I (2003)

CHAPTER VII. FOLLOW-UP TO CONCLUDING OBSERVATIONS

...

Overview of the application of the follow-up procedure

265. At its seventy-first session, in March 2001, the Committee began its routine practice of identifying, at the conclusion of each set of concluding observations, a limited number of priority concerns that had arisen in the course of the dialogue with the State party. The Committee has identified such priority concerns in all but one of the reports of States parties examined since the seventy-first session. Accordingly, it requested that State party to provide, within one year, the information sought. At the same time, the Committee provisionally fixed the date for the submission of the next periodic report.

266. As the Committee’s mechanism for monitoring follow-up to concluding observations was only set up in July 2002, this chapter describes the results of this procedure from its initiation at the seventy-first session in March 2001 to the close of the seventy-eighth session in August 2003. These are described session by session, but in future reports this overview will limit itself to an annual assessment of the procedure.

CCPR A/59/40 vol. I (2004)

CHAPTER VII. FOLLOW-UP TO CONCLUDING OBSERVATIONS

...

260. For all reports of States parties examined by the Committee under article 40 of the Covenant over the last year, the Committee has identified, according to its developing practice, a limited number of priority concerns, with respect to which it seeks the State party’s response, within a period of a year, on the measures taken to give effect to its recommendations. The Committee welcomes the extent and depth of cooperation under this procedure by States parties, as may be observed from the following comprehensive table. Of the 27 States parties (detailed below) that have been before the Committee under the follow-up procedure over the last year, only one (Republic of Moldova) has failed to provide information at the latest after dispatch of a reminder. The Committee reiterates that it views this procedure as a constructive mechanism by which the dialogue initiated with the examination of a report can be continued, and which serves to simplify the process of the next periodic report on the part of the State party.

261. The table below details the experience of the Committee over the last year. Accordingly, it contains no reference to those States parties with respect to which the Committee, upon assessment of the follow-up responses provided to it, decided to take no further action prior to the period covered by this report.

Follow-up - State Reporting

            Action by State Party

CCPR CCPR/CO/72/GTM/Add.1 (2003)

Response from Guatemala to the Concluding Observations Adopted by the Human Rights Committee at its seventy-second session.

I. DISAPPEARANCES

1. The internal armed conflict has been over since the peace agreements were signed, and consequently legislation has been brought in to improve public security and strengthen the rule of law: for example, the definition of enforced disappearance as a crime under the Guatemalan Criminal Code. Enforced disappearances on strictly political grounds have been eradicated. Human rights watchdog bodies in the country, such as the United Nations Verification Mission in Guatemala (MINUGUA), agree that human rights violations are no longer occurring as a systematic and institutionalized practice.

2. It must, however, be admitted that there have been reports of disappearances, the modus operandi of which suggest the work of gangs involved in drug smuggling and common crime. The competent authorities have launched investigations into the circumstances of and motives for these incidents and other such criminal situations.

3. Guatemala recently forwarded to the Human Rights Committee its report to the Working Group on Enforced and Involuntary Disappearances so as to keep it informed of the efforts being made to deal with the disappearances occurring during the armed conflict that had been reported to the Working Group. Efforts to date in this area will be stepped up when the National Reparations Programme - the Programme Committee was officially appointed on 16 July this year - goes into operation. The Programme includes a series of subprogrammes covering activities such as disinterments, since these are intimately linked to disappearances. It is thus hoped to help to identify and locate individuals who have been reported missing, particularly during the period of internal armed conflict.

II. National Reparations Programme

4. To cope with the aftermath of the armed internal conflict, something must be done about the structural inequalities which led to the conflict in the first place. Action is needed to repair some of the damage caused and promote new relations within society based on peaceful coexistence and full respect for human rights.

Description of the Programme

5. The National Reparations Programme has been designed as a series of policies, projects and activities undertaken with a view to putting right, making reparations, restoring, compensating, assisting, rehabilitating and according due dignity to the victims of the armed conflict. It needs to be a civilian, State-run undertaking targeted on the victims of the human rights violations engendered by the internal armed conflict, giving priority to those in vulnerable situations. It will therefore be based on the recommendations made in the report of the Commission for Historical Clarification (CEH). If the reparation process is to become a cornerstone of the national reconciliation that will restore the fabric of society, it must be defined, carried out and evaluated by the State in consultation with, and with the active participation of, those affected. Participation by the Mayan population, which was severely affected by the violence, is especially important. Reparations need to be both individual and collective, and designed to facilitate reconciliation. It may be possible to make collective reparations under geographically focused projects.

Objectives

6. The ultimate objective of the Programme, based on the legal, political, humanitarian, cultural and social considerations explained above, is to further the peace process and promote grass-roots reconciliation within Guatemala.

7. Other objectives of the Programme are:

(a) To give substance to the right of human rights violation victims to reparation and restitution;

(b) To honour the obligations entered into by Guatemala under the international human rights agreements to which it is party;

(c) To comply with the commitments made by the Guatemalan State under the peace agreements, especially the Comprehensive Agreement on Human Rights, the agreement to establish CEH and the corresponding report;

(d) To comply with the recommendations of CEH through joint involvement of and efforts by representatives of the State and civil society.

Sources

8. The recommendations of CEH and the Recuperación de la Memoria Histórica (REMHI) project on ways of keeping alive the memory of the victims and making reparation, in a bid to promote a culture of mutual regard and respect for human rights; international legal instruments and the experience of other countries; the experience gained by the Peace Secretariat; and the experiences of victims of the unrest and civil society.

9. The immediate references for reparation efforts are:

-          The Comprehensive Agreement on Human Rights, which states that it is a humanitarian duty to make reparations to and/or assist victims of human rights violations. Such reparations and/or assistance should be offered through governmental, civil and socio-economic action and programmes and directed, in the first instance, to those most in need of them given their economic and social circumstances;

-          The Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict, section II, article 9, of which establishes that in the particular case of abandonment of land as a result of armed conflict, the Government shall promote the return of land to the original holders and/or shall seek adequate compensatory solutions;

-          The Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that have Caused the Guatemalan Population to Suffer (CEH), which makes “formulating specific recommendations to encourage peace and national harmony in Guatemala” one of the purposes of the Commission;

-          Article 19 of the Agreement on the bases for the return to legality of the Unidad Revolucionaria Nacional Guatemalteca (URNG), which sets forth the principle that any violation of human rights entitles the victim to obtain redress and imposes on the State the duty to make reparation;

-          Congressional Decree 145-96, the “National Reconciliation Act”, which establishes that reparation shall be coordinated by the Peace Secretariat, through governmental measures and programmes of a civilian and socio-economic nature;

-          The recommendations in the CEH report (paras. 7 to 21) to the effect that the State, through appropriate action by the Government and Congress, should establish and launch as a matter of urgency the National Reparations Programme for victims of human rights violations and violence associated with the armed conflict and members of their families;

-          The pilot reparation projects launched by the Peace Secretariat since the year 2000;

-          The amicable settlements arrived at by the Government and victims, both individual and collective, through the Presidential Commission for Human Rights (COPREDEH) within the framework of the Inter-American Commission on
Human Rights;

-          The rulings of the Inter-American Court of Human Rights.

10. Human rights violations include:

- Forced disappearances;

- Extrajudicial executions;

- Physical and psychological torture;

- Forced displacement;

- Forcible recruitment of minors;

- Sexual violence;

- Abuse of children;

- Mass killings.

Reparation measures

11. The Programme covers the following activities intended to reinstate people to their physical circumstances before the violence and/or compensate them for their losses:

-          Return of land: the land problem is thought to have been one of the triggers of the internal armed conflict. The conflict forced many communities to abandon their land and move elsewhere; hence the Programme includes provision for the land to be returned or compensation to be paid. Through land restoration and on the basis of an assessment of the outcome to date of granting land to the uprooted population, the Programme will engender the activities and projects needed to provide a quick, flexible and concrete solution for victims of the uprooting who have not been given back their land or compensated for it. In any event, victims will not be able to benefit from more than one type of arrangement at once;

-          Return of housing: given that, during the internal armed conflict, communities, groups and individuals were forced to move away from their homes, the Programme will prompt the return of housing or the payment of compensation if housing has been destroyed and/or partly or totally lost. Due care will be taken to ensure that housing returned is fit for habitation. Account will be taken of similar experiments elsewhere, including projects executed by the Peace Secretariat and the Guatemalan Housing Fund (FOGUAVI) and, above all, of discussions with the victims concerned;

-          Productive investment: bearing in mind that victims also lost means of production during the armed conflict, and that this diminished their development opportunities, the Programme will provide resources to finance productive activity by victims.

Economic compensation

12. No restitution can be made for human rights violations that affect people’s lives or bodily integrity. In such cases, economic compensation is one means of reparation whereby the Guatemalan State can acknowledge the psychological harm resulting from serious human rights violations during the internal armed conflict. As a matter of priority, attention will be paid to cases of disablement making it impossible for victims to return to productive life, and to cases of adult victims whose age makes recourse to other established approaches difficult. For both these categories the Programme will establish criteria for the allocation of guaranteed incomes. Victims of the representatives will have to apply to the Programme Committee, where the appropriate unit will decide whether the applications satisfy the criteria for economic compensation. The selection criterion include:

(a) Violations of human rights on which Guatemalan courts have returned guilty verdicts;

(b) Cases in which actions for civil indemnification have been brought in connection with the injury resulting from the crime or violation concerned;

(c) Cases predating the launch of the Programme which have been brought to the attention of the Inter-American Commission on Human Rights;

(d) Cases documented in the report of CEH as meriting economic compensation in keeping with the type of violation suffered; and

(e) Cases arising out of disinterments from unmarked graves: the Government and the Multisectoral Body will be pressing the legislature and the international community to include resources for this purpose in the annual national budget for the next 10 years. When the Programme is set up, the National Reparations Commission will, together with the Government, have the role of managing these funds.

Psychosocial rehabilitation and reparations

13. This concerns all victims of human rights violations in the internal armed conflict who are suffering, either psychosocially or physically, in consequence. Particular attention will be paid to those most seriously affected, such as torture victims, and those currently forming part of the more vulnerable sectors of society, due regard being had to victims’ ethnic backgrounds and cultural identities, age and sex. Account will be taken of where the victims are, so as to ensure that no one is overlooked.

(a) Psychosocial reparations: the aim is to provide psychosocial care to victims of human rights violations during the armed conflict. These would encompass not only individuals but families and communities, giving priority to women, children and young people while maintaining absolute respect for everyone’s ethnic and cultural identity. Principal activities to be undertaken include diagnosing the chief psychosocial problems, taking into account the different kinds of individual and collective affront the victims have suffered; providing comprehensive psychosocial care while giving priority to vulnerable groups; conducting information programmes and gathering victims’ stories, acknowledging what occurred and responsibility for it; creating places where people can talk about their experiences and share them with those round about; finding scope for seeking justice; promoting mental health within the community; and training Ministry of Public Health and Social Assistance and community-based health personnel;

(b) Rehabilitation of the disabled: the internal armed conflict has left large numbers of people incapacitated, both physically and mentally, and this today has far-reaching implications for rural communities, since it is not only the victims who suffer but also their families and the community. The Programme seeks to provide specialized, comprehensive care for the physically and/or mentally incapacitated. It will also take account of socio-economic considerations so as to facilitate personal development and the return of victims incapacitated as a result of the internal armed conflict to productive life in society;

(c) Restoration of culture: with the objective of contributing to the process of reconciliation and reconstruction of the social fabric while respecting victims’ cultural identities, the Programme seeks to restore the culture of communities affected by the armed conflict. The main activities to be undertaken consist in spreading awareness of the conventions, customs and technology characteristic of each culture and in recording and codifying the main cultural features of the communities concerned;

(d) Education: the objective is to facilitate access to formal education within easy reach of victims and their immediate families. To this end, the current bursary scheme will be continued and efforts will be made to secure more resources and extend coverage to more beneficiaries: the latter will include young men doing their compulsory military service;

(e) Care for female victims of sexual violence: in towns and in the countryside, counter-insurgency policy during the armed conflict made use of rape and sexual violence against the rebels, leaving the victims and their home communities physically and emotionally scarred. Women from different social strata, urban and rural, suffered. As mentioned in the reports covering these periods, Mayan women who suffered sexual violence have also encountered specific problems with being reaccepted into their communities. The Programme will pay special attention to victims of sexual violence, as benefits their particular needs, if they so request. It will also coordinate with other governmental and civil society bodies in promoting a public policy of constant regard for the victims of sexual violence;

(f) Care for children who disappeared during the internal armed conflict: the National Search Commission for Children who disappeared during the armed conflict (CNBND) established by civil society and the Human Rights Ombudsman have, on the basis of the recommendations in the CEH report, identified the problems associated with children who disappeared during the internal armed conflict and acknowledged the importance of tracing the children where circumstances permit.

14. The Programme will foster specialized psychosocial rehabilitation facilities for family members and victims while investigations are in progress. It will provide backing for more energetic searches by furnishing financial resources and bolstering governmental and non-governmental bodies, CNBND in particular, dedicated to seeking out and bringing back disappeared children. Legislation in favour of children will be promoted as a means of reparation for the violations that occurred during the armed internal conflict, with the object of bringing about conditions conducive to future reconciliation. Efforts will be made to provide access to governmental and non-governmental archives so that information on children separated from their parents and/or illegally adopted may be sought.

15. The Programme addresses the important issues raised during the armed internal conflict, covering among other items the questions of dignified treatment for victims, the Extension of Military Service Act, Victim Dignity Day, the publication and promotion of the report of CEH, museums to the savagery of the conflict, and monuments to the memory of the victims, the primary objective being to entrench a culture of peace.

 III. Extrajudicial Executions

16. The State of Guatemala wishes to repeat that the reforms to the Criminal Code as regards the right to life have been given effect through the:

-          Congressional Decree 48-95 defining the crime of extrajudicial execution;

-          Congressional Decree 58-95 defining the crime of torture;

-          Congressional Decree 33-96 defining the crime of forced disappearance;

-          Congressional Decree 20-96, which increased the penalties for murder, parricide, manslaughter, qualified rape, violent indecent assault, aggravated indecent assault, theft, aggravated theft, robbery, aggravated robbery, and murder of the head of any State body.

17. One of the main objectives over the past few years has been to put an end to impunity, improve security for the population at large and guarantee human rights. The modernization of the justice system is designed to prevent impunity and corruption from undermining people’s rights to impartial justice and equality before the law. Efforts in this direction have been concentrated on: (a) the formulation of a plan for the design, definition and pursuit of democratic State policy - a State strategy for criminal policy; (b) providing ready access to justice, decentralizing and disaggregating services; (c) the pursuit of professional excellence and the provision of defence counsel services to those unable to pay for them. They have included:

-          The creation of three new justice administration centres, in Playa Grande, Ixcán and Santiago Atitlán, bringing together, physically and functionally, the principal components of the justice system in decentralized, coordinated units with the aim of providing the general public with efficient, accessible, accomplished and free judicial services;

-          The Public Defender’s Office has established six new ethnic criminal defence branches and set up branches at police headquarters; the Ministry of the Interior has added 850 new agents to extend coverage to the most conflict-ridden areas; the Criminal Investigation Service with various identification units has been deployed to improve the case-flow between the various institutions in the justice system;

-          The Coordinating Body for the Modernization of the Justice Sector (ICMSJ) has approved a realignment of the curriculum for the Joint Continuous Training Scheme;

-          The judiciary, the public prosecutor’s office and the Ministry of the Interior have been given larger budgets to facilitate better performance;

-          The National Committee against Threats and Intimidation has been given a new legal framework: a board has been set up to discuss the subject. There are plans to establish a Commission for the Investigation of Illegal Groups and Clandestine Security Apparatuses.

18. In 2001, the President of the Republic gave orders for the establishment of an inter-institutional working group on threats comprising the Ministry of the Interior, the Peace Secretariat, the Secretariat for Strategic Affairs and COPREDEH. The public prosecutor’s office and the Supreme Court of Justice were also invited to join the group, whose terms of reference are to process complaints, produce a report on threats and map out a course for the investigation and punishment of those responsible. The group reported in September and, in response, the public prosecutor’s office established the position of Prosecutor for Threats. The Strategic Analysis Secretariat produced a series of recommendations on reports of threats, intimidation and searches directed against members of civil society, organizations and such State officials as employees of the justice system, which it submitted to the Presidential Cabinet for Security and Human Rights as a contribution to the shaping of government policy on the subject.

19. In January 2003, the Human Rights Ombudsman, responding to a number of reports, issued a resolution recommending the President of the Republic to send to the Congress a bill to set up the Commission for the Investigation of Illegal Groups and Clandestine Security Apparatuses (CICIACS). Through the intermediary of Human Rights Watch in conjunction with the Human Rights Ombudsman and organizations active in the sector, the Government approved the plans for the Commission and defined its scope and limits. The United Nations system and the Organization of American States were also asked to help in setting up the commission.

20. The judiciary has made security arrangements for more than 20 judges who have brought cases of threats before the judicial Committee on the Security of Judges and Magistrates, and has issued a security handbook for judges and magistrates.

21. Progress has been made in consolidating the civilian strategic intelligence service with the presidential civilian security service: full demobilization is scheduled for November this year. Defence policy is being formulated in multisectoral groups including representatives of civil society and the Government. Eighteen military detachments have been disbanded and there are plans for a significant reduction in military manning levels.

IV. Trafficking in Children

22. There is no documentary information on illegal trafficking in children and teenagers for immoral purposes, legal adoption, commercial sexual exploitation and so forth other than the copious reports in the media. While it must be said that Guatemalan law is not entirely watertight where trafficking in children is concerned, the State must be given some credit for the efforts it has made in this area.

23. The State has: (a) ratified the Hague Convention on the Civil Aspects of International Child Abduction; (b) ratified the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict; (c) ratified the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography; (d) acceded to the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption. Congress adopted the Children and Adolescents (comprehensive protection) Act on 4 June 2003.

24. A number of gaps in the internal legislation have been filled on the basis of the Hague Convention. The following must be involved in intercountry adoptions: (a) the mothers, or the institutions in which abandoned children have been placed; (b) the intercountry adoption agencies; (c) the adoptive fathers; (d) the social worker who conducted the socio-economic survey of the prospective adoptive parents; (e) the psychologist who studied the adoptive parents; (f) two witnesses to testify to the suitability of the prospective adoptive parents; (g) agencies from any country which can provide criminal background on the adoptive parents; (h) the Guatemalan ambassador or consul who approved the papers (in the event of adoption involving certain specific countries, the ambassador of the country concerned must also be involved); (i) a sworn translator; (j) the Guatemalan lawyer and notary who will produce the deed and register entry; (k) the family court judges; (1) the Office of the National Procurator-General, which will issue the ruling; (m) the civil registrar, who will establish the new birth certificate; (n) the national migration authorities, to deal with the formalities of the move to the country where the adoptive parents live.

25. The Children and Adolescents (comprehensive protection) Act provides that “the State shall recognize the institution of adoption of children and adolescents, and must see to it that in the event of adoption the best interests of the child are the paramount consideration, in accordance with the treaties, covenants, agreements and other international instruments on the subject accepted and ratified by Guatemala” (art. 22). It also guarantees that “children and adolescents are entitled to protection against kidnapping, trafficking and sale of any kind for any purpose. The State shall pursue appropriate national, bilateral and multilateral activities and strategies to prevent any such occurrence” (art. 50).

V. Child Labour

26. Child labour is not a new phenomenon in Guatemala. It is a traditional part of the culture, particularly in rural areas. Consequently, some parts of the population regard it as normal - a way for children to learn from their parents. Because families are poor, children have to help them find the wherewithal to survive. Most of the working children are in rural areas, where they tend to be employed in unpaid work within the family. The remainder are in urban areas, working as unskilled workers or labourers; a smaller proportion work for themselves. Most girls are employed as labourers or domestic servants. The State is aware of the effects of child labour on school education and on health.

27. There is extensive legislation on the subject of child labour. The Constitution also sets out basic principles on the subject. These are summarized below:

-          Labour Code: this governs everything to do with labour relations, especially child and female labour, domestic work, dangerous occupations and such other matters as working days;

-          Civil Code: this, in article 8, governs people’s capacity to exercise their civil rights. Article 1661 on health and safety refers to the harm and prejudice caused to those under 15 and the responsibility of workshop managers and owners;

-          Health Code: this contains a series of provisions on health protection of relevance to child labour;

-          Social security: various programmes offer protection to workers enrolled in the Social Security regime irrespective of their ages, especially in the event of accidents or ordinary illness;

-          Peace agreements: although not strictly speaking laws, these have been regarded by the Government since 2000 as State agreements, which allows the related recommendations and commitments on child labour to be invoked;

-          International agreements: the Convention on the Rights of the Child and various International Labour Organization (ILO) conventions.

28. Nationwide consultations with all levels of society were held in 1999 on the national plan to prevent and abolish child labour and protect working teenagers. In 2000, the Unit for the Protection of Minors at the Ministry of Labour and Social Security set up a technical committee to give shape to the plan. The groups targeted are children in work or at risk of having to work, working teenagers, and working children and teenagers at high risk. The plan calls for joint efforts with the Ministry of Education to reduce school absenteeism and child labour, and to increase access for girls to early learning and pre-primary and primary education by 50 per cent. It also calls for efforts in conjunction with the Ministry of Public Health and Social Welfare to reduce morbidity and mortality among the under-18s.

29. In connection with the plan it should be pointed out that ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour took effect in Guatemala on 11 October 2002 pursuant to Decree No. 27-2001. The Ministry of Labour and Social Security has also (a) set up a unit to implement ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries; (b) been working on a variety of schemes to phase out child labour in fireworks manufacture, coffee-growing, gravel-digging, broccoli cultivation and domestic work.

30. The Children and Adolescents (comprehensive protection) Act states that “children and adolescents are entitled to protection from economic exploitation and employment in any occupation that might be dangerous to their physical or mental health or hinder their access to education” (art. 51).

VI. Legal Detention

31. Legislation governing detention additional to that mentioned in paragraphs 210-212
and 229-237 of the second periodic report of Guatemala (CCPR/C/GTM/99/2) is detailed below.

Constitution

-          Article 11: Detention in connection with misdemeanours or breaches of regulations. “Individuals whose identity can be established through documents, through the testimony of the detaining officer or by the authorities themselves must not be kept in detention in connection with misdemeanours or breaches of the regulations. In such cases the authorities shall, on pain of the appropriate penalties, limit their intervention to informing the competent court and serving notice on the offender to appear before that court within the next 48 working hours. Working hours for this purpose shall be taken to mean the hours between 8 a.m. and 6 p.m. every day of the year. Failure to obey the summons shall be punishable under the law. Any individual unable to identify himself as stipulated in this article shall be placed at the disposal of the nearest judicial authority within an hour of first being detained.”

-          Article 12: Right to defence. “An individual’s defence and rights are inviolable. No one may be convicted or deprived of his rights without being summoned, heard and found guilty in legal proceedings before a competent, pre-existing court or tribunal. No one may be tried by special or secret courts, or other than under pre-existing legal procedures.”

-          Article 13: Grounds for issuance of arrest warrants. “No arrest warrant may be issued before investigations have been conducted into whether an offence has taken place, or in the absence of sufficient reasonable grounds to suspect that the detainee committed or was party to it. The police authorities may not officially identify to the media anyone who has not previously been examined by the appropriate court.”

-          Article 14: Presumption of innocence and public trial. “An individual is innocent until legally found guilty in a judgement that has become final. The detainee, the injured party, the public prosecutor and counsel appointed either orally or in writing by the parties shall be entitled to take immediate personal cognisance of all proceedings, documents and formalities relating to the case, without reservation.”

Criminal Code

An individual may not be taken into pre-trial detention unless he has committed one or more offences, as laid down in the Criminal Code:

-          Decree-Law No. 17-73, special section on crimes against life and personal integrity, simple homicide: on the basis of the principle of legality established in article 1 on legality, no one may be punished for actions not expressly designated as offences or misdemeanours in law predating their commission, nor subjected to penalties other than those previously established under the law;

-          Article 10: Causal relationship. The accused shall be held responsible for the offences if these result from an action or omission normally apt to produce them, given the nature of the offence and the specific circumstances of the case, or if the law expressly establishes that they are the consequence of such conduct.

Code of Criminal Procedure

-          Decree-Law No. 51-92. This introduces pre-trial detention as a coercive measure applicable to an individual suspected of an offence in order to prevent obstruction of efforts to shed light on the truth and to be sure that the individual, once apprehended, does not abscond;

-          Article 259: Pre-trial detention. “Pre-trial detention may be ordered, once the defendant has been heard, if there is information to indicate that a punishable offence has taken place and sufficient reasonable grounds to believe that the defendant committed or was party to it. [The individual’s] freedom shall be restricted only to the extent absolutely necessary to ensure his presence during the proceedings.”

-          Article 260: Form and substance of the decision. “The arrest warrant shall be issued by the competent court or tribunal, and shall indicate:

“(1) Personal details serving to identify the accused;

“(2) A brief account of the offence(s) of which he is accused;

“(3) Reasons, including specific mention of the grounds for arrest;

“(4) A list of the applicable provisions in law.”

REPORT BY THE GOVERNMENT OF THE REPUBLIC OF GUATEMALA TO THE WORKING GROUP ON ENFORCED AND INVOLUNTARY DISAPPEARANCES FOR CONSIDERATION BY THE HUMAN RIGHTS COMMITTEE AT ITS SIXTYNINTH SESSION

The Government of the Republic of Guatemala once again submits for the consideration of the Commission on Human Rights Working Group on Enforced and Involuntary Disappearances a report containing a list of the people which the Presidential Commission for Human Rights (COPREDEH) Disinterments and Missing Persons Unit has laboriously managed to compile to help in the elucidation of reports by family members and human rights organizations of people who have gone missing.

As was the case with the previous report, this report is based on information supplied from time to time by the Working Group; it is therefore assumed that the information on individuals now being sent will also be correct, although, as has been pointed out on various occasions, the information made available to the Working Group by the sources of the reports is incomplete. Information vital for the identification of the alleged victims is missing: in most cases, no personal identity document number has been supplied, nor are there photographs of the individuals reported missing; there are also people with the same names in different parts of the country, which makes it all the harder to identify the individuals concerned. The Working Group is therefore respectfully requested to ask the sources sending it reports to provide at least the full name and local identity card number of each person reported missing. This will facilitate the search for them. COPREDEH has twice approached the Grupo de Apoyo Mutuo (GAM), one of the main sources of reports, for information to make it easier to identify supposed victims; to date, however, GAM has provided information on only four cases, and even that is incomplete.

The Government nevertheless remains committed to go on valiantly looking for the missing persons and do its best to clear up each and every case reported to the Working Group.

It is still extremely difficult to obtain information to resolve every case since in most instances, even though it is known where a person disappeared from, the individual concerned was not necessarily living there but passing through. Nearly 99 per cent of reports fail to give either the full names or identifying data for the people allegedly missing, though this is a minimum requirement on the standard reporting forms drawn up by the Working Group.

We offer some examples of reports which should not, in our view, be accepted:

Reports providing incomplete identifying data, which makes it impossible to trace an individual:

“Name: ORTIZ BERDUO, Eulogio Gregorio

Age: 37

Nationality: Guatemalan

Profession/occupation: Peasant

Last seen: Caserío 15 de enero, 5 May 1981

The person concerned is reported to have been detained in Caserío 15 de enero on 5 May 1981 by a group of unidentified men. The source indicates that governmental forces are responsible.”

In this, as in similar cases, we have not the remotest idea to which village in which of the Republic’s 331 municipalities the caserío (hamlet) belongs; we are also missing the personal identification document number, which would help to place the missing individual in a given geographical area.

A similar case is that of Emiliano Jerónimo Pérez Mejía, where no personal identification number is given and the only reference is to the village of El Naranjo.

On several occasions, reports have given full names but not information on the personal identity documents (local identity cards) of the individuals concerned. We have thus been unable to send information which might relate not to those individuals but to others with the same names, making the information now supplied imprecise and inaccurate.

Examples:

-          Barrios López, Víctor Manuel (two people with the same name);

-          Cabrera, Sandra (two);

-          García Hernández, Fernando (two);

-          García, Luis Alfredo (three);

-          Hernández Gómez, Guillermo (two);

-          Hernández, Sergio (two);

-          Herrera, Jorge (two);

-          Jiménez, José Luis (two).

There are cases where the information given does not relate to people, for example:

“Name: Costa Cuca

Born:

Nationality:

Identity document:

Profession/occupation: Christian Democrat

Last seen: Flores, El Petén, 26 September 1978

The source, Amnesty International (AI), reports that the subject was arrested in Flores, El Petén, on 26 September 1978, by security forces.”

Here, Costa Cuca is the name of a municipality in the west of Guatemala - specifically, in Quetzaltenango. Its full form is Flores Costa Cuca. What could its date of birth, nationality, identity document and political leanings be? It is a legal nonsense.

As for being last seen in Flores, El Petén, it is wholly impossible for one municipality to be seen in another, not to mention being taken captive and disappearing. The Government believes this case should be declared settled without further ado.

The Group has accepted cases in which the reporting organization (AI) has not supplied information that, according to the instructions on the form designed by the United Nations, is essential:

“However, the Working Group can only deal with clearly identified individual cases containing the following minimum elements of information:

“(a) Full name of the missing person (including any available data of relevance to the missing person’s identification, such as national identity document number, photograph, etc.);

“(b) Year, month, day of disappearance;

“(c) Place of arrest or abduction or where the missing person was last seen;

“(d) Indication of the persons believed to have carried out the arrest or abduction;

“(e) Indication of the action taken by the relatives or others to locate the missing persons (inquiries with the authorities, habeas corpus petitions, etc.);

“(f) Identity of the person or organisations submitting the report (name and address, which will be kept confidential upon request).”

Example:

“Name: Sales Ortega

Born:

Nationality: Guatemalan

Identity document:

Profession/occupation:

Last seen: San Martín Jilotepéque, 21 September 1980

The source (Al) reports that the subject was arrested on 21 September 1980 in San Martín Jilotepéque by security forces.”

Here we do not have the full name of the person who is supposed to have disappeared. Was he or she from San Martín Jilotepéque, or just passing through? If a case is accepted without the “minimum” information the Working Group needs, the COPREDEH Missing Persons Unit has its work cut out, for tracing a person by surname alone is practically impossible.

Being determined to clear all these cases up, the Missing Persons Unit will spare neither time nor effort in tracing people reported missing by human rights organizations on whom, when the reports were sent in, the information established by the Working Group as the minimum for identification purposes was not available.

Guatemala again respectfully requests the Working Group on Enforced and Involuntary Disappearances to make known its findings on the cases covered in the reports submitted in 1997 (51 cases), 1999 (27 cases) and 2000 (44 cases) through the Guatemalan diplomatic mission in Geneva. This is because, not having been officially informed which cases the Working Group has considered, clarified and closed, Guatemala cannot be certain how many cases have officially been accepted.

On the basis of the communication dated 24 October 2002, which stated that 63 cases have been cleared up, and the communication dated 23 December 2002 stating that 22 cases would be regarded as closed if, within six months, the family members of those concerned did not make comments requiring further consideration by the Working Group, Guatemala respectfully requests the Working Group to inform it of the current standing of the cases which, according to those communications, have merely being considered. Today, we are not certain whether the cases listed below have or have not been accepted as cleared up.