Concluding observations of the Committee against Torture : Guatemala. 12/06/2000.
A/56/44,paras.67-76. (Concluding Observations/Comments)

Convention Abbreviation: CAT
COMMITTEE AGAINST TORTURE
Twenty-fifth session
13-24 November 2000

Guatemala

67. The Committee considered the third periodic report of Guatemala (CAT/C/49/Add.2) at its 450th, 453rd and 456th meetings, held on 21, 22 and 24 November 2000 (CAT/C/SR.450, 453 and 456), and adopted the following conclusions and recommendations.


A. Introduction

68. The Committee notes that although Guatemala has been a State party to the Convention since 5 January 1990 it has not made the declarations provided for in articles 21 and 22 of the Convention, and that it is also a party to the Inter-American Convention to Prevent and Punish Torture.

69. The report, submitted on 3 February 2000 and covering the period from 1 April 1998 to 31 December 1999, was updated by the head of the delegation of Guatemala in his introduction. The report generally follows the Committee’s guidelines for the form and contents of periodic reports.

70. The Committee thanks the delegation for its replies and for its frankness and cooperation during the dialogue.


B. Positive aspects

71. The Committee takes note with satisfaction of the following positive aspects:

(a) The announcement by the President of Guatemala, repeated by the head of the delegation during his introduction, that the question of human rights will figure prominently in government policy and that there is an acknowledged need to transform the administration of justice and put an end to impunity;

(b) The recognition by the State of its responsibility in emblematic cases of human rights violations substantiated under the inter-American system for the protection of human rights, and the announcement of willingness likewise to recognize its responsibility in other pending cases;

(c) The adoption of the Career Judicial Service Act, which governs the activities of judges and magistrates with a view to protecting their independence and ensuring professional excellence in the exercise of their functions;

(d) The consolidation of the College of Legal Studies as an initial in-service training institution responsible for the objective and impartial selection of new members of the judiciary;

(e) The demobilization of the Treasury Police and conclusion of the process of constituting a single National Civil Police;

(f) The establishment within the Office of the Procurator for Human Rights of the Office of the Ombudsman for Prisoners and Due Process, which is authorized to monitor judicial and prison officials in order to protect individuals in situations where violations of human rights and judicial guarantees frequently occur;

(g) The conclusion by the Government and the United Nations Human Rights Verification Mission in Guatemala of an agreement on the implementation of the Prison Modernization Programme and, as part of the Programme, the opening of the Penitenciary System College in November 1999;

(h) The decision by the Government, announced to the Committee by the President of the Presidential Commission for Coordinating Executive Policy in the field of Human Rights (COPREDEH) and head of the delegation, to propose amendments to articles 201 bis and 425 of the Penal Code in order to define the offence of torture in terms that are fully in accordance with article 1 of the Convention.


C. Factors and difficulties impeding the application of the Convention

72. The Committee points to the existence of the following:

(a) The increase in acts of intimidation, harassment and death threats against judges, prosecutors, complainants, witnesses and members of human rights bodies and victims’ and journalists’ organizations, which continue to prevent the submission of complaints of human rights violations and to impede progress in politically sensitive cases involving members of the military or government officials and relating to the organization and activities of the intelligence services. The fear to which such acts give rise seriously affects the freedom of action of individuals and organizations involved in the protection of human rights, as well as the autonomy of the administration of justice;

(b) Legislative provisions which allow the army to take part in public security and crime prevention activities and which hinder the demilitarization of society, weaken the civil power of the State, and are a legacy of the militarization of the country during the armed conflict;

(c) The repeated protection of persons responsible for human rights violations by their superiors, made possible by the lack of administrative investigations and the failure to adopt the necessary disciplinary measures, who in some cases themselves acquiesced or even directly participated in the commission of violations;

(d) Parallel investigations tacitly authorized or agreed to by the State and conducted by government bodies not legally authorized to do so or by clandestine structures in cases of human rights violations in which responsibility is attributed to government officials; these parallel investigations jeopardize the autonomy and independence of the judiciary and the Public Prosecutor’s Office and defeat the purpose of and hamper investigations of these crimes;

(e) The lack of statistics on the prison population disaggregated by ethnic group which might show that persecution in prison is based on racial discrimination;

(f) The inadequacy of the Service for the Protection of Persons involved in Proceedings and Persons connected with the Administration of Justice in providing effective protection and security for persons involved, in various capacities, in criminal proceedings. The Committee recalls that in its observations on the second periodic report, it drew attention to the impact of such inadequacy on continuing impunity and pointed out that the protection of victims and witnesses is a duty imposed on the State by article 13 of the Convention.


D. Subjects of concern

73. The Commission expressed concern with respect to:

(a) The deterioration of the human rights situation in Guatemala and, in particular, the increase in proven cases of torture and other cruel, inhuman and degrading treatment or punishment as compared with the situation at the time the Committee considered the second periodic report. The fact that the main perpetrators of these violations are officials of the National Civil Police, particularly its Criminal Investigations Service, has frustrated hopes that a renewed, single police institution under civilian command would not have the defects that characterized police bodies in the past;

(b) The continuing existence of impunity for offences in general and for human rights violations in particular, as a result of repeated dereliction of duty by the government bodies responsible for preventing, investigating and punishing such offences. Impunity exists for most of the violations committed during the internal armed conflict and those committed after the Peace Agreements were signed;

(c) Serious quantitative and qualitative shortcomings in the system of the administration of justice with regard to criminal investigations and guarantees of due legal process;

(d) The inadequate definition of the offence of torture in article 201 bis of the Penal Code, as already pointed out by the Committee during its consideration of the second periodic report;

(e) The lack of an independent commission with wide powers and extensive resources to investigate the circumstances of the kidnapping of disappeared persons on a case-by-case basis and to locate their remains. Uncertainty about these circumstances causes the families of disappeared persons serious and continuous suffering;

(f) The lack of systematic procedures for the periodic review of the practical implementation of the rules, instructions, methods and practices governing interrogation and the arrangements for the treatment of persons deprived of their liberty. The treatment of persons detained in prison, including high security prisons, must be in accordance with the United Nations Standard Minimum Rules for the Treatment of Prisoners.


E. Recommendations


74. The Committee recalls that the initial report was considered at a time when the armed conflict taking place and the second, when the Peace Agreements had just been concluded. The third was considered four years after the conclusion of the Peace Agreements. The Committee nevertheless must reiterate most of the recommendations made following its consideration of the preceding reports.

75. The Committee reiterates the following recommendations:

(a) The relevant provisions of the Penal Code, especially articles 201 bis and 425, should be amended to bring the definition of the offence of torture and its punishment into line with articles 1 and 4 of the Convention;

(b) Sufficient human and material resources should be provided to enable the Service for the Protection of Persons involved in Proceedings and Persons connected with the Administration of Justice to operate effectively;

(c) Technical training programmes for law enforcement officials, prosecutors, judges and National Civil Police officials, with particular emphasis on their obligation to respect and protect human rights, should be continued;

(d) Bearing in mind that, during the introduction of the initial report and the second periodic report, the representatives of Guatemala said that the process leading up to the formulation of the declaration under article 22 of the Convention had begun, a statement repeated during the consideration of the third report, the Committee invites Guatemala to make the declaration in question.

76. The Committee recommends:

(a) The system of the administration of justice should be modernized and measures adopted to eliminate its weaknesses and shortcomings and to strengthen the autonomy and independence of the judiciary and the Public Prosecutor’s Office, including those already recommended by the Historical Clarification Commission and the Commission for the Modernization of Justice;

(b) The provisions authorizing the army’s involvement in public security and crime prevention, which should be the exclusive prerogative of the police, should be repealed;

(c) Independent external bodies and procedures should be established to monitor the conduct of National Civil Police officials, with broad powers to investigate and impose disciplinary penalties, without prejudice to the powers of the Public Prosecutor’s Office to investigate and of the courts to punish misconduct constituting a crime;

(d) All government bodies not authorized to conduct investigations into criminal matters should be strictly prohibited from doing so;

(e) An independent commission should be established to investigate the circumstances of the kidnapping of disappeared persons and to determine what happened to them and where their remains are located. The Government has an obligation to spare no effort to find out what really happened in such cases and thus give effect to the legitimate right of the families concerned, provide compensation for the loss or injury caused and prosecute the persons responsible;

(f) Procedures should be established for the systematic and periodic review of the rules, instructions, methods and practices governing interrogation, as provided for in article 11 of the Convention.


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Office of the United Nations High Commissioner for Human Rights
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