GUATEMALA

CCPR A/51/40 (1996)

217. The Committee considered the initial report of Guatemala (CCPR/C/81/Add.7 and HRI/CORE/1/Add.47) at its 1486^th, 1488^th and 1489^th meetings (fifty-sixth session), on 26 and 28 March 1996, and at its 1499th meeting, on 3 April 1996, adopted the following comments.

1. Introduction

218. The Committee welcomes the initial report submitted by the State party and welcomes the delegation's willingness to engage in a frank and fruitful dialogue with the Committee. The Committee regrets, however, that although the report provides information on general legislative norms in Guatemala, it largely fails to deal with the actual state of implementation of the Covenant in practice and the difficulties encountered in the course of implementation which the delegation frankly admitted, a fact which the Committee appreciates. The Committee appreciated the presence of a competent delegation which provided helpful information to it in response to its questions and thus allowed it to obtain a clearer view of the overall human rights situation in the State party.

2. Factors and difficulties affecting the implementation of the Covenant

219. The Committee notes that Guatemala continues to suffer from a long civil war which has devastated the country for more than four decades. In the context of such conflict, gross and massive human rights violations have occurred and, although some steps have been taken in recent years to achieve peace, the conflicting parties have not yet negotiated an end to the war. The situation of armed conflict which has prevailed since Guatemala ratified the Covenant has given rise to serious violations of human rights. The armed conflict has also subjected civilian governmental authority to the power of the military, which is incompatible with the legitimate functions of freely elected authorities and the purpose of elections.

220. The Committee also notes that various segments of the population, particularly persons who are or were members of the armed forces or government officials or who hold economic power, continue to take advantage of a climate of impunity, resulting in the most serious human rights violations and representing an obstacle to the rule of law in the State party.

221. The Committee also notes that social and economic disparity is pervasive in the country. High levels of poverty and illiteracy, lack of opportunities and discrimination against the indigenous population, women and the poor contribute to widespread violations of human rights.

3. Positive aspects

222. The Committee expresses its satisfaction at positive changes for the protection of human rights since the signing of the Central American peace agreement on 7 August 1987. It notes that some progress has been made towards entering a dialogue that would hopefully put an end to the situation of armed conflict and lead to the establishment of the rule of law. In that connection, the Committee notes the signing on 29 March 1994 of the Comprehensive Agreement on Human Rights, and consequently the establishment of the United Nations Mission in Guatemala (MINUGUA) and of its human rights component, as well as the conclusion on 23 June 1994 of the Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict.

223. The Committee welcomes the current Government's intentions to achieve a firm and lasting peace in Guatemala and its willingness to put an end to serious violations of human rights and create a better political, constitutional and legal framework for the full implementation of the rights enshrined in the Covenant. The Committee also welcomes the termination of offensive military actions decreed by the National Revolutionary United Front and the cessation of all counter-insurgency operations by the Government decreed by President Arzú, as well as the ending of obligatory military service, which will aid in the demilitarization of the country.

224. In that connection, the Committee welcomes the positive steps taken by the recently elected Government, such as the dismissal of certain top officials of the armed forces and the reopening of a dialogue with the armed opposition on 22 February 1996. It also welcomes the elimination of the post of the Military Commissioner (Comisionado Militar) and the demobilization of more than 14,000 persons from the security forces.

225. The Committee welcomes Guatemala's ratification of the Covenant in 1992, as well as the adoption by the Congress of legislation approving ratification of the Optional Protocol. It welcomes the indication made by the representatives of the State party that Guatemala will deposit its instrument of ratification to the Optional Protocol within the next few days.

226. The Committee welcomes the establishment of the Office of the Human Rights Procurator and the Presidential Commission for Coordinating Executive Policy in the Field of Human Rights (COPREDEH). It also welcomes the legal reform undertaken in some areas, notably constitutional amendments to bring Guatemalan law into conformity with international human rights standards, the adoption of a new Code of Criminal Procedure and the enactment of a new Law on the Prosecutor's Office (Ley Orgánica del Ministerio Público), aiming at the investigation and punishment of human rights violations.

227. The Committee welcomes recent legislation making torture, forced disappearances and extrajudicial executions punishable offences in Guatemala. It also welcomes recent developments to curb the power of military tribunals and to bring cases of human rights violations by members of the army and the security forces under the jurisdiction of civil courts.

228. The Committee welcomes the recent elections and the fact that after a failed coup d'état the authority vested in freely elected officials was strengthened.

4. Principal subjects of concern

229. The Committee is concerned that the absence of a State policy for combating impunity has prevented the identification, trial and punishment if found guilty of those responsible and the payment of compensation to the victims. The Committee is concerned that the delays and failures of the process of law and the non-compliance by the police with court decisions and orders have heightened the public perception that justice cannot be obtained.

230. The Committee expresses concern that human rights violations continue to occur in Guatemala, particularly serious and systematic violations of the right to life and liberty and security of the person carried out by paramilitary groups, many of them linked to the State's security forces.

231. The Committee is concerned at the extension of the death penalty in a way which might not be in conformity with the requirements of article 6, paragraph 2, of the Covenant.

232. The Committee notes with alarm the information received of cases of summary executions, disappearances, torture, rape and other inhuman or degrading treatment or punishment, arbitrary arrests and detention of persons by members of the army and security forces, or paramilitary and other armed groups or individuals, notably the civil self-defense patrols, and former military commissioners.

233. The Committee is concerned at the cases of violence against the repatriated population, which has resulted in extrajudicial executions, disappearances, and torture or ill-treatment. In this connection, it is concerned at the conduct of members of the civil self-defense patrols who have used their position to harass repatriated persons.

234. The Committee notes with concern that members of various social sectors, particularly members of the judiciary, lawyers, journalists, human rights activists, members of trade unions and members of political parties faced serious obstacles in the legitimate performance of their duties, being subject to intimidation, death threats and even murder. The Committee deplores that effective measures have not yet been taken to prevent recurrence of such acts.

235. The Committee is concerned that judges are subjected to supervision of an Executive Branch body which may affect their independence.

236. The Committee deplores the situation of street children in Guatemala who are subjected to serious violations of their human rights under the Covenant, particularly their right to life and to not be subjected to torture and ill-treatment. The Committee is concerned at the intensity of abuse against street children by persons of authority, including the public and private police.

237. The Committee is concerned at customs and traditions prevailing in Guatemala which discriminate against women. It is particularly concerned at the statement by the delegation that State institutions are frequently not in a position to address the problems affecting the female population. The Committee is especially concerned at violence within the family which not only affects women but also the children.

238. The Committee expresses concern at the specific impact of the prevailing violence within the country on the enjoyment by members of indigenous groups of their rights under article 27 of the Covenant. In that connection, the Committee is concerned that despite the signing of an accord between the Government and the armed opposition on 31 March 1995 on the identity and rights of the indigenous population, the law on indigenous communities required by article 17 of the Constitution has not yet been enacted.

239. The Committee is concerned at the curtailment of the right of association, especially within the workplace. In that connection, it is concerned at the high levels of violence against trade-union members, at the intimidation by agents of offshore operations and at the large number of cases of strikes that are deemed illegal.

5. Suggestions and recommendations

240. The Committee strongly encourages the Government to undertake a thorough review of the legal framework for the protection of human rights in the State party to ensure full conformity with the Covenant.

241. The Committee urges the Government to continue working on the process of national reconciliation which may bring lasting peace to Guatemalan society. The Guatemalan Government should take all relevant measures to avoid cases of impunity and, especially, to allow the victims of human rights violations to learn the truth about those acts, to know who the perpetrators of such acts are and to obtain appropriate compensation.

242. The Committee recommends that the State party endeavour to bring to justice perpetrators of human rights abuses, notwithstanding the positions they may have held, in accordance with the Covenant. It urges the State party to investigate allegations of human rights violations, past and present, to act on the findings of its investigations, to bring to justice those suspected, to punish the perpetrators and to compensate the victims of such acts. Persons found guilty of having committed human rights violations should be expelled from the armed or security forces and punished accordingly.

243. The Committee recommends that the Office of the Human Rights Procurator and the Presidential Commission for Coordinating Executive Policy in the Field of Human Rights (COPREDEH) be strengthened in both resources and jurisdiction in order to ensure that they may effectively carry out their responsibilities.

244. The Committee recommends that all necessary measures be taken to ensure that human rights are respected by members of the army, the security forces and the police. It urges continuing vigorous action to ensure that persons responsible for human rights abuses do not re-enter the police, army or security forces. Immediate steps should be taken to disband paramilitary and other groups, particularly the civil self-defence patrols.

245. The Committee recommends that an educational programme be devised so that all segments of the population, in particular members of the army, the security forces and the police, as well as present and former members of the civil self-defence patrols, develop a culture of tolerance of and respect for human rights and human dignity.

246. The Committee urges the Government to take all necessary steps, including protective and pre-emptive measures, to ensure that members of various social sectors, particularly members of the judiciary, lawyers, journalists, human rights activists, members of trade unions and members of political parties, are enabled to perform their duties without intimidation of any sort.

247. The Committee recommends that the independence of the judiciary be ensured and a law regulating it be enacted.

248. The Committee recommends that appropriate stringent measures be taken to ensure the fullest possible implementation of article 24 of the Covenant, including adequate protection of street children. Stern measures must be taken to punish those found guilty of committing any kind of violence against minors, especially against those who endure hard living conditions.

249. The Committee also urges that violence, especially within the home, and acts of discrimination against women, such as sexual harassment in the workplace, be established as punishable crimes.

250. The Committee recommends that further measures be taken to ensure that members of indigenous groups are protected against the prevailing violence within the country and enjoy fully their rights under article 27 of the Covenant, particularly with regard to preservation of their cultural identity, language and religion. Legislation on indigenous communities should be enacted without delay.

251. The Committee urges that respect for human rights be institutionalized at all levels of government and recognized as an essential element of the process of national reconciliation and reconstruction. To that end, the Committee recommends that human rights education be provided in schools at all levels and that these concluding observations of the Committee are widely disseminated.

252. The Committee urges the Guatemalan Government to restrict the application of the death penalty to those crimes which might be considered most serious, in accordance with article 6, paragraph 2, of the Covenant.

253. The Committee urges that the United Nations Mission in Guatemala continue its activities in that country until it certifies that it has fully discharged its mandate relating to human rights.

CCPR A/56/40 (2001)

85. Guatemala

(1) The Human Rights Committee considered the second periodic report of Guatemala (CCPR/C/GTM/99/2 and HRI/CORE/1/Add.47) at its 1994th, 1941st and 1942nd meetings held on 17 and 18 July 2001 (see CCPR/C/SR.1940, 1941 and 1942) and adopted the following comments at its 1954th meeting held on 26 July 2001.

A. Introduction

(2) The Committee welcomes the State party's second periodic report, submitted with minimal delay, and the delegation's willingness to stay in contact with the Committee. However, the Committee regrets that this report contains information on general legislation in Guatemala, but scarcely refers to the situation regarding the implementation of the Covenant in practice and the difficulties encountered in its implementation. The Committee welcomes the fact that the delegation referred to this matter in its statements. The Committee appreciates the information provided by the delegation on various issues, which has enabled it to have a clearer idea of the general human rights situation in the State party.

B. Positive aspects

(3) The Committee welcomes the fact that the State party has ratified the first Optional Protocol to the International Covenant on Civil and Political Rights with effect from 28 February 2001.

(4) The Committee is pleased that efforts have been made to provide additional resources for the Office of the Human Rights Procurator and for the Presidential Commission for Coordinating Executive Policy in the field of Human Rights (COPREDEH), thus enabling them better to carry out their work.

(5) The Committee is pleased with the information received concerning the dismantling of the civilian self-defence patrols and the measures taken to professionalize the police forces.

(6) The Committee welcomes the positive legislative measures adopted on behalf of women and the establishment of various bodies intended to promote and protect women's rights.

(7) The Committee takes note of the recent measures adopted to establish a career structure for the judiciary.

(8) The Committee welcomes the State party's recognition of "institutional responsibility", as endorsed by the President of the Republic, for the Las Dos Erres massacre and other serious violations of human rights which occurred during the civil war for the purpose of being able to provide financial compensation to the victims and guarantee the prosecution of those responsible.

(9)       The Committee considers it a positive factor that the administration of justice has been extended to many municipalities in the country through the appointment of justices of the peace, some of whom are bilingual and who have criminal jurisdiction.

C. Subjects of concern and recommendations

(10) In ratifying the Covenant the State party accepted the obligations contained in article 2, paragraphs 1 and 2, to ensure to all individuals subject to its jurisdiction the rights recognized in the Covenant and to take the necessary steps to adopt, if they do not already exist, measures to give effect to those rights. The Committee is concerned about the State party's claim that the principles of the Constitution prevent it from giving effect to the provisions of the Covenant and, for example, about the fact that personal jurisdiction has been maintained for members of the military and some rights of members of indigenous communities are not being recognized.

The State party should not put forward the limitations of its Constitution as a reason for non-compliance with the Covenant, but should draw up the necessary reforms to achieve such compliance.

(11) The Committee is concerned about the wide variety of possible states of emergency listed in the Constitution. The possibility of suspending article 5 of the Constitution during states of exception does not appear to be compatible with the Covenant, since it suspends in general terms the right of the individual to do what the law does not prohibit and not to be compelled to obey illegal orders. Likewise, the Committee is concerned that the state of exception declared in June 2001 has not been duly notified to the other States parties through the intermediary of the Secretary-General of the United Nations.

The State party should ensure that its constitutional provisions for emergency situations are compatible with article 4 of the Covenant. It should also comply with the obligation to notify the other States parties through the intermediary of the Secretary-General of the United Nations in all cases when an emergency situation is declared and to inform them of the provisions from which it has derogated and of the reasons for the derogation.

(12) The Committee is disturbed that the absence of a State policy intended to combat impunity has prevented the identification, trial and punishment of those responsible for violations of article 6 and the payment of compensation to the victims. The Committee is concerned that delays in and the shortcomings of legal procedure and the failure of the authorities to comply with the decisions and orders of the courts have strengthened the perception by the public that justice is not being done.

The State party should:

(a) Strictly apply the National Reconciliation Act, which explicitly excludes crimes against humanity from amnesty;

(b) Set up an appropriate independent body to investigate disappearances;

(c) Provide adequate compensation for the victims of human rights violations.

(13) The Committee is gravely concerned about reports of human rights violations, particularly gross and systematic violations of the right to life, liberty and security of person. It is especially concerned about reports of disappearances in the State party, both the most recent reports and those in the past. The information supplied by the delegation that all such situations are being investigated is not satisfactory.

Taking into account the provisions of articles 6, 7 and 9 of the Covenant, the State party should give special priority to investigating and bringing to justice the perpetrators of human rights violations, including police and military personnel. The perpetrators of such acts must be tried and punished; mere separation from service or dismissal from the army is not sufficient. The State party should also take all necessary measures to prevent the occurrence of such acts.

(14) The Committee's deep concern also extends to the many reports of, and the State party's failure to provide answers about, extrajudicial executions allegedly carried out by former members of the military and paramilitary forces and attributed to ordinary criminals. These acts are all contrary to article 6 of the Covenant.

The State party should conduct investigations to identify those responsible for extrajudicial executions and bring them to justice. It should also take the necessary measures to prevent the occurrence of such violations of articles 6 and 7 of the Covenant.

(15) The Committee is also concerned about the information received on the traffic in children separated from their parents, a situation which has still not yet been clarified.

The State party should conduct investigations to identify those responsible for the traffic in children and bring them to justice. It should take the necessary measures to prevent the occurrence of such violations of articles 6, 7 and 24 of the Covenant. It should also take the appropriate measures to comply with the provisions of international instruments on child labour.

(16) Despite the efforts made by the authorities through workshops to raise public awareness, the Committee is deeply concerned about reports of lynchings of members of the judiciary in breach of articles 6 and 7 of the Covenant and about the apparent delay by the State party in reacting to such incidents.

The State party has the obligation to ensure the full protection of all authorities, especially their security during the exercise of their judicial functions.

(17) The Committee is concerned about the application of the death penalty and, in particular, about the increase in the number of crimes carrying that penalty, its application having been extended to abduction not resulting in death, contrary to the provisions of the Covenant.

The State party should limit the application of the death penalty to the most serious crimes and restrict the number of crimes carrying that penalty in accordance with article 6, paragraph 2, of the Covenant. The State party is invited to move towards the full abolition of the death penalty.

(18) The Committee is concerned about the elimination, by the Act of 12 May 2001, of the right, for persons sentenced to death, to seek pardon or commutation of the sentence, as recognized in article 6, paragraph 4, of the Covenant. It takes note of the information supplied by the delegation that, despite the existence of that Act, the President of the Republic has exercised the right to grant pardon on the basis of the precedence of international treaties over ordinary laws.

The State party should guarantee any person sentenced to death the right to seek pardon or commutation of sentence by bringing the legislation into line with the obligations of the Covenant and adopting provisions to ensure that the right to seek pardon may be exercised.

(19) The criminalization of all abortion, with the severe penalties imposed by the legislation in force except where the mother's life is in danger, gives rise to serious problems, especially in the light of unchallenged reports of the serious impact on maternal mortality of clandestine abortions and the lack of information on family planning.

The State party has the duty to adopt the necessary measures to guarantee the right to life (art. 6) of pregnant women who decide to interrupt their pregnancy by providing the necessary information and resources to guarantee their rights and amending the legislation to provide for exceptions to the general prohibition of all abortions, except where the mother's life is in danger.

(20) The wide jurisdiction of the military courts to hear all cases involving the trial of military personnel and their powers to decide cases that belong to the ordinary courts contribute to the impunity enjoyed by such personnel and prevent their punishment for serious human rights violations, as the State party recognized when including the amendments not adopted in the 1999 referendum.

The State party should amend the law to limit the jurisdiction of the military courts to the trial of military personnel who are accused of crimes of an exclusively military nature (articles 6, 7, 9 and 14 of the Covenant).

(21) The Committee notes with concern that members of various sectors of society, particularly members of the judiciary, lawyers, human rights activists and trade unionists, are being intimidated, threatened with death and even killed; the lawful exercise of their functions is thus being seriously hampered (articles 6, 7 and 9 of the Covenant). The Committee regrets that effective measures to prevent the repetition of such acts have still not been taken.

The State party should take all necessary preventive and protective measures to ensure that the members of various sectors of society, particularly members of the judiciary, lawyers, human rights activists and trade unionists, can carry out their functions without intimidation of any kind.

(22) The Committee is concerned about the large percentage of prisoners held in pre-trial detention. This means that a large number of persons accused of crimes remain in pre-trial detention for long periods, pending the completion of the criminal proceedings against them, contrary to article 9, paragraph 3, and article 14, paragraph 2, of the Covenant.

The State party should continue to take all necessary measures to reduce the number of persons in pre-trial detention and the period during which they are detained.

(23) The Committee regrets the lack of specific information on the provisions governing detention, especially on the point at which the prisoner has access to a lawyer, a doctor, an interpreter, etc.

The State party should provide this information so that the Committee can assess its compatibility with the requirements set out in articles 9 and 14 of the Covenant.

(24) The Committee is concerned about the continued existence of a legal provision exempting a rapist from any penalty if he marries the victim and about the continued requirement in the legislation that a woman must be "honest" for that offence to be held to have been committed.

The State party should immediately repeal this legislation, which is incompatible with articles 3, 23, 26 and 2 (3) of the Covenant.

(25) The Committee is concerned that women do not participate enough in political life, the judiciary and other sectors and that the information provided by the State party is not detailed enough to enable the Committee to evaluate either the progress made or the problems that continue to exist in this regard.

In order to comply with articles 3, 25 and 26, the State party should take appropriate measures to improve participation by women, through affirmative action programmes, if necessary, and to inform the Committee of the results of such programmes.

(26) The Committee deplores the situation of street children, which appears to be getting worse. These children run the greatest risk of sexual violence and are vulnerable to sexual trafficking.

The State party should take effective measures both to protect and rehabilitate street children, pursuant to article 24 of the Covenant, including measures to put an end to sexual exploitation and child pornography, and to punish those found guilty of any kind of violence against minors.

(27) The Committee is concerned about the situation of children in the State party and, in particular, about the postponement of the entry into force of the Juvenile Code, which was adopted and promulgated, but then had its entry into force deferred.

The State party should promulgate a Juvenile Code that guarantees minors the enjoyment of all their rights pursuant to article 24 of the Covenant.

(28) The Committee is concerned that the laws in force on defamation may be used to restrict criticism of the Government or public officials.

The State party should reform the legislation on defamation to ensure a proper balance between the protection of a person's reputation and freedom of expression (article 19 of the Covenant).

(29) Even though the Committee recognizes that the State party has made efforts to improve the situation of members of indigenous communities, it regrets that it has not been possible to adopt legislation designed to guarantee the full enjoyment of all their rights under the Covenant, including the restitution of communal lands, the elimination of discrimination in employment and education and participation in other areas of the life of society.

The State party should continue its efforts to guarantee members of indigenous communities the enjoyment of all the rights recognized by article 27 of the Covenant and adopt comprehensive legislation for this purpose. It should also ensure that the implementation of this legislation improves the situation of members of indigenous communities in practice and not only on paper.

(30) The State party should widely publicize the text of its second periodic report and these concluding observations.

(31) The State party should, pursuant to rule 70, paragraph 5, of the Committee's rules of procedure, furnish within one year information on any action it has taken in the light of the Committee's recommendations on disappearances and extrajudicial executions (paras. 12-15 of these observations) and on pre-trial detention (para. 23). The Committee requests that the information on the remainder of its recommendations should be included in the third periodic report, due to be submitted by 1 August 2005.