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					Presentation by Mr Alexander Rodriguez, Ombudsman of Guatemala

                     Guatemala: The building of democratic institutions

Guatemala is a small country in Central America, with a population of 12 million and 110
thousand sq miles. It has recently emerged from a Civil War of 36 years. During this
period, Guatemala was ruled by military governments that used torture, forced
disappearance and extrajudicial executions. The Guatemalan Truth Commission,
established by the UN, concluded that during the Civil War nearly 50,000 were forced to
disappear and other 200 thousand were killed by the armed forces and death squads.

Torture was overtly used during this period and The Interamerican Court of Human rights
considered proven in several cases       “that… the Army had a practice of capturing
guerrillas(gorillas) , detaining them clandestinely without advising the competent,
independent and impartial judicial authority, physically and mentally torturing them in
order to obtain information and, eventually, killing them”.

With the signing of the Peace Accords in 1996, the Government and the guerrilla(gorilla)
movement ended the civil war. The accords provided the framework for beginning to
address the causes and consequences of that conflict, and a roadmap for the reforms
necessary to construct a system based on respect for human rights, democratic
participation and the rule of law.

This path toward the future through the resolution of the causes and consequences of the
conflict gives priority to such concerns as, among others: (1) the creation of an
independent judiciary that is perceived to be fair and effective; (2) the development of a
National Civil Police that generates the respect of the people; (3) the redefinition of the
role of the armed forces to pertain protection against external threat; (4) the recognition
of the just aspirations of the indigenous population; (5) the pursuit of relations between
women and men free from discrimination and violence based on gender; (6) the
achievement of a society that protects the interests of its children; and, (7) the
progressive realization of economic, social and cultural rights through concrete advances
to enable all Guatemalans to aspire to a life of dignity with equal opportunities.

A key aspect of the accords, identified as a critical failure of the past and a priority
challenge for the present and the future, is the requirement that justice be done and seen
to be done. The State acknowledges that the systems for public security and the
administration of justice are gravely deficient. Among the problems identified by the
State itself are abusive and arbitrary action by the police forces; the lack of institutional
capacity to investigate and prosecute crime, especially when committed by State agents;
and serious deficiencies in due process and the administration of justice.

Guatemala is no longer in the initial stage of transition from the era of the conflict; rather,
it has reached a point in the process of reform in which certain systemic problems must be
decisively and definitively addressed. The interrelated deficiencies in the administration of
justice and the resulting situation of impunity for human rights violations constitute such a
serious systemic problem. In order for the consolidation of the rule of law to move
forward (ensuring social stability and a propitious climate for development), the rule in
cases of human rights violations must be the effective investigation, prosecution and
punishment of those responsible.

So Guatemala is involved in a transition to democracy, the process has no end at sight.
There are important challenges for civil society and human rights defenders, in order to



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build strong institutions and grant their work. But human rights defenders are often
victims of harassment and attacks. National Police is still a highly corrupted institution
and torture is widely used. In recent days, four high ranks officials of National Civil Police
were accused of murder of four salvadorean congressmen for the Central American
Parliament, unveiling the existence of death squads.

Obviously, the insecure environment is the main obstacle for the fight against torture and
the implementation of National Preventive Mechanisms on torture.

ACTUAL SITUATION OF TORTURE IN GUATEMALA

In 2005, the CAT considered the fourth periodic report of Guatemala UNDER ARTICLE 19
OF THE CONVENTION. The conclusions of these reports are mixed.

As Positive aspects the CAT noted

      The efforts made to reform the State party’s judicial system.


      The declaration adopted by the State party under article 22 of the Convention, to
       receive complaints of torture from individuals. (But it is important to mention that
       no petition has been submitted until this day)
      A proposal to establish a Commission for the Investigation of illegal Groups and
       Clandestine Security Organizations (CICIG).
       The establishment in September 2005 of an office of the United Nations High
       Commissioner for Human Rights in Guatemala, with a combined technical
       cooperation and monitoring mandate.

   On the other hand, the subjects of concern and recommendations by the CAT include:
    amend, as a matter of priority, the relevant provisions of the Criminal Code, in
      order to legally define torture in accordance with the Convention
      adopt effective measures to strengthen the National Civil Police and should repeal
      all laws which allow the army to be involved in activities of law enforcement or the
      prevention of ordinary crime
    Amend its legislation in order to explicitly provide that an order from a superior
      officer or a public authority may not be invoked as a justification of torture.

The Committee also expressed concerned with the impunity that persists regarding most
of the human rights violations committed during the internal armed conflict, with over 600
massacres documented by the Historical Clarification Commission which still need to be
investigated.    The Committee noted with concern that in practice the National
Reconciliation Act has become an obstacle to the effective investigation of massacres.
According to this the Committee recommends that Guatemala should strictly apply the
National Reconciliation Act, which explicitly excludes any amnesty for the perpetrators of
acts of torture and other grave human rights violations, ensures the initiation of
prompt, effective, independent and thorough investigations of all acts of torture and other
grave human right violations committed during the internal armed conflict, and grants
adequate compensation to the victims

Besides that, the Committee was seriously concerned about the numerous allegations
such as:




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        (a)    The “social cleansing” and killings of children living in the street which are
often involved in acts of torture and ill-treatment, and the fact that such cases are not
thoroughly investigated;
      (b)     The increase in violent killings of women, which often involve sexual violence,
mutilations and torture and reports of sexual violence against women in police stations.
The CAT also highlight the fact that these acts are not investigated exacerbates the
suffering of relatives seeking justice, who, in addition, complain of gender discrimination
by the authorities in the course of investigatory and judicial proceedings;
               (c)    The lynching’s of individuals

The Committee is concerned that the functioning of the State party’s prison system
continues to lack a regulatory framework. In this regard the committee recommends that
The State party should adopt legislation on the prison system in conformity with
international human rights norms.


The Committee was also concerned about pre trial detention and recommended the State
to make efforts to adopt effective measures to reduce the number of persons
held in pre-trial detention.

The Committee is concerned about reports of the use of excessive force by police officers
during evictions in rural areas, which often result in the destruction of homes and other
personal belongings, and sometimes even in violent deaths.


With regard to death penalty the Committee declared that the State party should bring its
legislation on the death penalty fully in line with its obligations under international and
that the failure to revoke these sentences constitutes a form of cruel and inhuman
treatment or punishment.

Finally, the Committee urges the State party to consider ratifying the Optional Protocol to
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment.

In an important degree, the recommendations set by the Committee reflected the
concerns reports by the civil society and the Ombudsman office. The permanent
surveillance over prison system by NGO´s and defense lawyers provide important
information to prepared reports to the CAT.

But one of the main concerns of the CAT are the reports of an increase in acts of
harassment and persecution, including threats, killings and other human rights violations,
experienced by human rights defenders, and about the fact that such acts remain
unpunished (art. 2). And recommended that The State party to prevent and protect
human rights defenders from any further violence and ensure the prompt,
thorough and effective investigation and appropriate punishment of such acts.

LEGAL FRAMEWORK ON NATIONAL PREVENTIVE MECHANISMS (NPM)

 Guatemala has been part of UNCAT1 since January 1990. The State signed the OPCAT2 in
September 2003. Despite that, it was presented to ratification by the Congress until


1 UNITED NATION CONVENTION AGAINST TORTURE
2 Optional Protocol of UNITED NATION CONVEN TION AGAINST TORTURE


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November 2005. Under the Guatemalan Constitution, an International treaty can only be
ratified after the approval of the Congress. There is a great internal resistance to ratify the
OPCAT by the Congress, because some Political Parties believe that the visits under the
protocol are against national sovereignty.

Therefore Guatemala has not implemented National Prevention Mechanisms (NPM) in
compliance with OPCAT. In the internal discussion about the designation of a NPM, the
Ministry of Foreign Affairs recommended that the national prevention mechanism should
be in charge of the Presidential Commission on Human rights (known as COPREDEH).
Such interpretation violates OPCAT Article 18, since COPREDEH lacks of functional and
personnel independence that is required. Besides that the choice of a NPM should be made
by or in consultation with civil society, not a unilateral decision of the executive
government.

On the other hand, there are several institutions created by the 1985 Constitution that
have the capacity and mandate to develop monitoring visits to detention centres:

       The Ombudsman Human rights Office
       The Public Defense Lawyer Institute
       The sentencing judges

OMBUDSMAN OFFICE

The figure of the Ombudsman for Human Rights of Guatemala was established in the
Constitution of 1985. Also known as the “Magistrate of Conscience,” the Ombudsman is
commissioned by the Congress of the Republic, and exercises a Constitutional mandate to
protect and defend human rights. The Office has particular importance by virtue of its
autonomy and identity as a national institution with offices throughout the country.
Through these offices, the Ombudsman receives thousands of complaints of alleged
violations of basic rights per year. It investigates those that meet the requirements for
processing, and may issue public or private recommendations to state functionaries to
change conduct found incompatible with basic guarantees. It is also authorized to
promote judicial or administrative actions in particular cases. In addition to its complaints
and mediation procedures, the Office plays an important role in human rights education
and training.

The Human rights Ombudsman has achieved the recognition of international community
and Guatemalan civil society for its independence and capacity.
Its functional independence has been set in the article 274 of Guatemala’s Constitution.
The ombudsman appointment procedure ensures a pluralist representation of the social
forces involved in the protection and promotion of human rights: its appointment required
a qualified majority of two thirds of votes of the Congress. Also important is that the
Congress has to choose from three candidates selected by the Congress Human Right
commission, which is a special commission integrated by all political parties with national
representation. In the political reality of Guatemala such majority is very difficult to
achieved, because the Parliament is deeply divided, so the Ombudsman needs to have a
broad representation and consensus of political forces.

In order to ensure a stable mandate for the Ombudsman, his appointment is for a five
year period. This mandate may be renewable.
According to the Ombudsman Human Rights Office Act of 1987 the institution enjoys a
financial independence and has the right to select their staff.




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In order to fulfill a supervision of prison conditions, the Ombudsman creates the Due
process and prisoner defense Unit in 1998. This unit has displayed a key role in the
protection of the human rights of prisoners, establishing endure and constructive relations
between authorities and detainees. The regular visits to the prison centres have built a
sense of confidence with prisoners and the work of the unit has helped to improve the
conditions of detention.

During the last five years the Ombudsman Office has been dealing with several riots in
prisons and massive escapes, some of them with a tragic told of deaths. More than 200
hundred detainees have been killed in these riots. The Ombudsman intervened as a
mediator in these conflicts avoiding the increase of violence and achieving pacific
solutions.
For instance, in recent February, the Boqueron Maximum Security prison was taken by
juvenile gangs called CHOLOS. They kept six wardens as hostages.          The Cholos
demanded the presence of the Ombudsman Office to come to a solution. After nearly
twelve hours of negotiations the detainees released the wardens without the use of
violence and no warden or detainee was hurt or killed.

At the beginning of their work, the due process and detainee unit practiced their visits
without specific guidelines. In the last three years, with the aid of the Institute of
Comparative Studies in Criminal Sciences, an NGO dedicated to Judicial Reform, the Unit
developed guidelines to collect information on a comprehensive and systematic basis, and
to register the information on a data base. In 2005, the Unit produced a comprehensive
report on Detention conditions.      With the collaboration of other NGO, the Unit is
developing the observatory of prisons, a project that will allow us to produce a report on
detentions conditions each year.

The Observatory of prisons scheduled at least one visit per year to all prisons and
detention facilities of Guatemala. In 2006, the Unit opened 6 regional units to allow more
frequently visits to prison centres. Actually, there are 18 officials working on the unit and
monitoring the main Prison Centres.

The Ombudsman Office also has made visits to other detention facilities, like Child Care
Centers, Mental Hospitals, Immigration detention. After these visits the Ombudsman
found several cases of child abuse, malnutrition, sexual abuse and other grave human
right violations. In a Child Mental Health Care Centre, the Ombudsman found a 9 years old
Mayan girl that was being treated as a Mental patient. The girl was not bilingual and
because of that, the doctors considered that she had a diminished mental capacity. It was
one of the members of the visiting staff, who was a Mayan speaker, who found the girl
and translated what she said. She said that she was lost and wanted to find her parents.
This event highlights the importance of bilingual staff in the monitoring groups.

The Children protection Unit of Ombudsman Office also has a program of permanent visits
to Child Care Centres, Nurseries, orphanages, etc. As a result of these visits, a Report was
produced and important recommendations were given to the State, including the closing
of some of the Centres. The report was presented to the President of the Congress Human
Rights Commission, who decided to prepare a draft law to supervise the Child Care
Centres.

LIMITATIONS FOR THE OMBUDSMAN OFFICE AS NPM




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The legal mandate of the Ombudsman Office does not include an actual provision to visit
detention centres and other facilities. In the Ombudsman Office Act, article 14 requires a
judicial warren to enter official facilities. Fortunately, this provision is rarely invoked by
officials to deny access, but it is a potential limitation.

In fact, in several occasions the Prison functionaries have denied such access on the
grounds of security, etc. There are no provisions to punish the illegal action of the
officials.

On September 2006, for instance, the officials denied the access to Pavon Prison Center,
in a security operation to transfer the prisoners to a near detention facility. During the
events 7 prisoners were killed. A further investigation of the Ombudsman Office concludes
that the prisoners were executed by security forces.

Another limitation for the ombudsman mandate is the request of documentation.                The
Ombudsman is required a judicial order to access to all information.

Finally, there are severe restrains with respect   to confidentiality. The Ombudsman Office
Act has no provision to interview a detainee in    private. It is a usual practice that officials
remain in front of the detainees during the        interviews, hearing all the conversation.
Besides those detention facilities in Guatemala    do not have rooms or locations for private
conversations.

Another limitation is that the ombudsman has no authority to initiate proposals for
new legislation or amendments to existing legislation

CONCLUSION
The ombudsman office has developed an important job on monitoring detention conditions
and other facilities. It can be designated as a National Preventive Mechanism.

 Even though there are some limitations on the Ombudsman mandate to compliance with
the standards of the OPCAT.

For these reason, the Ombudsman Office Act needs to be reinforced in order to give power
to:
       Unimpeded access, with or without prior notice to any place where persons may be
       deprived of their liberty.

       To submit proposals and observations concerning existing or draft legislation.

       Access to all information referring to the treatment of those persons as well as their
       conditions of detention

       The financial independence of the human right Ombudsman Office has to be
       strengthened, to ensured work at national level.

       Finally the legislation has to guarantee the opportunity to have private interviews
       with the persons deprived of their liberty without witnesses.

OTHER INSTITUTIONAL MONITORING BODYS

Judicial Monitoring




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Criminal Procedures Code commands Criminal judges to carry out regular visits to places
of detention and inspect the conditions of pre- trial detention Centres. Sentencing judges
have the duty to visit prisons for sentenced criminals and decide on matters related to the
execution of the sentence

Despite that, in Guatemala Judicial inspections are rarely implemented. The ordinary
criminal Judges, who have the control of pre-trial detention, never undertake a visit to
centres, unless a habeas corpus writ has been submitted. On the other hand, the
sentencing judges have no resources to make visits on any regular basis. There are only
two sentencing judges for the whole country. They have to resolve probation, and other
matters related to the execution of the sentence. Despite Guatemala is a small country,
only two judges can not carry out their duties. In a comparative perspective, El Salvador
(which is by far a smaller country than Guatemala) has seven sentencing judges.

In other words, the judicial monitoring is non existent in Guatemala. It is not necessary to
mention that there are no judicial guidelines.


Public defense Institute

The constitution established that detainees have the right to communicate with their
lawyer at their request. That means that officials of the prison system cannot deny the
defense lawyers the access to the detention centres.

Defense lawyers are putting in practice the best safeguard to torture and ill treatment
because of their permanent presence in detention centres. In 2004, the Public Defense
Institute realized that detainees face more jeopardy to be torture or ill treatment in police
stations. To prevent torture the Institute created a program that set public defenders in
police stations. This program achieved important goals: a reduction of pre-trial detention,
torture and ill treatment.

The main limitation of Public Defense Institute as an effective NPM is that its main
functions are related with individual cases and not interested in a general overview of the
detention centres.

THE NGO WORK IN MONITORING PRISION CONDITIONS

Guatemala’s legal frame has no provision in order to grant access to NGO into prisons or
detention centres. Despite that, NGO has achieved agreements with Prison Officials to
obtain access to jails. Thus the NGO depends on the will of authorities to give access to
prisons. Even with this agreement, officials often ask for confirmation to the General
Director of Prisons.

Sometimes the Ombudsman Office intervenes to grant access to the NGO staff. This
limitation impedes the work of NGO in prisons, especially to set a regular visit system.

The new Prison System Act of 2006 contemplates as a core principle the community
participation that allows NGO to collaborate with the prison authorities. Although this
provision is not an explicit permission to access the prisons.

That’s why, in order to grant real powers for NGO to participate as a Preventive
Mechanism it is necessary to implement at domestic level an effective legal framework.




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At least, the legislation has to provide an independent access to the detention centres. It
is necessary to establish Public Information act to allow Organizations of Civil Society to
access relevant information about the prison systems, and access files and records of
detainees.

FINAL CONCLUSIONS

It is important to have several national mechanisms. At least two mechanisms seem
more suitable to Guatemalan context:
    a) the Ombudsman Office, with a reinforcement of their mandate
    b) an NGO independent Commission, with all the powers required by article 18 of the
        OPCAT
In Guatemala there is an important opposition to ratify the Protocol. In particular the
governmental party is concerned of the international visits by the subcommittee. The civil
society and the Ombudsman Office are working with the human rights commission of the
Congress to promote the ratification of the optional protocol.

Nevertheless, the implementation of the national mechanisms will require an important
legal reform to guarantee all the powers to develop an effective work




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