CHAPTER IV
RIGHT TO SAFETY AND TO HUMANE TREATMENT1
A. General Considerations
1. As indicated in Chapter I of this report, the Guatemalan Constitution established specific provisions related to the safety and integrity of persons. In this regard, it established that no person may be persecuted or molested for his opinions or for acts which do not involve an infraction of the law; that every person arrested shall be interrogated within forty-eight hours, and that he shall be informed of the reason for his detention, the name of the accuser or denouncer, and any other facts necessary for a knowledge of the alleged punishable act; that no arrested or imprisoned person shall be prevented from satisfying his natural functions and that neither shall there be inflicted upon him physical or moral torture, cruel treatment, infamous punishment or acts, hardships, or coercion, nor shall he be compelled to perform work prejudicial to his health or incompatible with his physical constitution or his dignity, not shall he be made the victim of extortion. It is also established that public officials or employees who give orders contrary to the foregoing article, and subordinates who carry out such orders, shall be removed from their posts, be permanently barred from holding any public office or employment, and shall receive the pertinent legal punishment; and that heads of prisons and places of detention shall be responsible, as authors thereof, for any act of torture, cruel treatment, or infamous punishment inflicted on criminals or inmates in the establishment of which they are in charge; and even when it appears that a subordinate was directly responsible, they shall be punished as accomplices or concealers, unless immediately after the act became known they took the necessary steps to prevent or stop it and initiated proceedings against the authors. It is added that a guard who makes use of arms unnecessarily against an inmate or prisoner shall be held liable under criminal law, and that the action deriving from an offense committed under these circumstances is imprescriptible.2
B. Respect for this right in practice
1. Despite the fact that the Guatemalan juridical branch includes the aforementioned constitutional and legal provisions for protecting safety and humane treatment of persons, the IACHR has information obtained from various reliable sources that lead it to the conclusion that all of these provisions are seldom or never applied in practice.
According to these reports and denunciations reaching the Commission, violation of the right to safety and humane treatment has special features in Guatemala.
The application of physical and psychological pressures and of cruel and inhumane treatment has gone beyond the limits of being a horrendous method for obtaining information or inflicting punishment and has become a more horrendous system for killing citizens.
The system is used not only by the police authorities but also, and more frequently, by the paramilitary groups which, as has already been stated, are accused of acting with the support of the governmental authorities.
Most of the victims of the many murders which occur periodically carry signs of cruel tortures, with their faces disfigured, with various parts of the body mutilated, and with other evidence of disgraceful treatment. The bodies are left in such condition in public places, which heightens the atmosphere of terror Guatemala is experiencing.
2. The National Union of Attorneys based in New York and the Alianza Legal de la Raza reach the following conclusions in this regard:
- The Government has failed completely and absolutely in its obligation to protect its citizens' right to life and right to humane treatment. Private industries and large landowners can support security forces, which assume governmental functions and commit very serious crimes against the people of Guatemala. Added to this, all evidence points to the direct participation of the army and of the national police in the murders, tortures and abductions which are now a common practice in Guatemala.
- Every sector of the population—workers, students, clergymen, attorneys, and poor people—are affected by all of the aforementioned policies and practices. There is a reign of terror in Guatemala which obstructs exercise of the most basic human rights and of the democratic freedoms guaranteed by the American Convention on Human Rights and by other pertinent international instruments.3
3. The Commission has processed several cases in which denunciations refer to the practice of torture. These cases include the following, with regard to which the IACHR has adopted the corresponding resolutions:
4. CASE 7581 – NEHEMÍAS CÚMEZ, CHIEF OF THE PUBLIC HOUSING
UNIT OF COMALAPA AND SEVERAL EMPLOYEES OF THE BOARD OF
RECONSTRUCTION
In this case, the IACHR, at its Fifty-third Session, adopted the following resolution on June 25, 1981:
1. In a communication dated November 6, 1980, the following was denounced to the Inter-American Commission on Human Rights:
In March 1980, Mr. Nehemías Cúmez, Chief of Public Housing of the town of Comalapa, was abducted on the way to his home when an automobile which was blocking the road made him stop his Land Rover. When he got out, four men armed with shotguns and submachine guns made him get into their automobile. From that time one, there has been no news of his whereabouts, although his Land Rover appeared in the town of Sunpango, 40 kilometers away.
In July there were two related kidnappings in Comalapa. On the 24th, some soldiers stationed in the outskirts of Comalapa stopped a bus travelling from Comalapa to the capital and kidnapped the nephew of Nehemías, Adolfo Cúmez, 18 years of age. When he tried to intercede, Anastasio Sotz, 24 years of age, Secretary of Public Housing, who had succeeded Nehemías Cúmez as President of that agency, was also taken.
In August, Mr. René Gómez Ovalle, 30 years of age, son of a well-known Comalapa businessman, was apprehended in Chimaltenango.
In August, he was found three kilometers from Comalapa, on the road to the capital, in a 120-foot deep gully, which has normally served as a place to throw the bodies of kidnapped persons. Thirty bodies were taken from there. Rural people have reported that there were many more but that the government did not wish to take them all out. According to some witnesses, for a year vehicles which turned off their lights and then left had been arriving at that place in the night. Eyewitnesses have said that there still are piles of bodies there and that the government has been duly informed.
The night of October 4, Juan Muz, 40 years of age, friend of Nehemías Cúmez, was kidnapped from his home by four persons. Witnesses of the event were his wife, his 17 year old son, and several neighbors. His body was found two days later, 30 kilometers away, with signs of torture. The following day, some 15 soldiers patrolled the market to suppress any demonstration which might take place during his burial.
On October 10, 1980, Antonio Mux, 35 years of age, and Roque Salazar, 30 years of age, staff member of the Reconstruction Board, were kidnapped from a bus travelling from the capital to Comalapa by persons armed with submachine guns of the Guatemalan army, who were dressed in civilian clothes but who had army boots on. Salazar's body was found on the 15th with the teeth removed, the tongue cut out, and other mutilations.
On October 15, another employee of the Reconstruction Board, Ernesto Apén, 28 years of age, and Maximiliano Otzoy, Legal Aide, both residents of Comalapa, were kidnapped from an office in Chimaltenango.
In November there were several more murders. A 17/year old youth, Paquixic, was murdered in a nearby village in the presence of his family. A few days later, Julio Tuyuc, 25 years of age, was kidnapped on the public road in Comalapa by armed persons who made him enter an automobile. His body was found the next day.
Three people from Comalapa were murdered in the capital when their car stopped for a traffic light. Included among them was Mr. Miguel Corruchiche. All of them were connected with the Comalapa Reconstruction Board, as was Nehemías Cúmez.
The Government is held responsible for these events.
2. In a note dated December 16, 1980, the Commission forwarded the pertinent parts of this denunciation to the Guatemalan Government, asking it to provide the corresponding information.
3. In a note dated April 20, 1981, the Commission addressed itself to the Guatemalan Government again, repeating its request for information.
WHEREAS:
1. Thus far the Government has not answered the Commission's request for information.
2. Article 39 of the Regulations provides as follows:
Article 39
1. The facts reported in the petition whose pertinent parts have been transmitted to the government of the sate in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 31 paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
RESOLVES:
1. On the basis of Article 39 of the Regulations, to assume to be true the events denounced in the communication dated November 6, 1980, concerning the arbitrary arrest of the following persons from the village of Comalapa: Nehemías Cúmez and his nephew, Adolfo Cúmez, Anastasio Sotz, René Gómez Ovalle, Antonio Muz, Ernesto Apén and Maximiliano Otzoy; the arbitrary detention and subsequent torture and murder of Messrs. Juan Muz and Roque Salazar; the arbitrary detention and subsequent murder of Julio Tuyuc; and the murder of Mr. Miguel Curruchiche.
2. To declare that the Government of Guatemala violated Article 4 (Right to Life), 5 (Right to Humane Treatment), 7 (Right to Personal Liberty), 8 (Right to a Fair Trial) and 25 (Right to Judicial Protection) of the American Convention on Human Rights.
3. To recommend to the Guatemala Government that it investigate the facts denounced and, if appropriate, that it punish those responsible, and that it kindly inform the Commission of whatever decision it takes within sixty days.
4. To make this resolution known to the Government of Guatemala and to the denouncing party.5
5. CASE 7379 – KIDNAPPING, TORTURE AND MURDER OF
JOSÉ LEÓN CASTAÑEDA, JOURNALIST
In this case, at its Fifty-third session, on June 25, 1981, the IACHR adopted the following resolution.
1. In a communication dated November 19, 1979, the following was denounced to the Inter-American Commission on Human Rights:
On November 16, after being kidnapped and tortured, José León Castañeda, Journalist, Charter Member of the Social Communication Media Union (SIMCOS) and member of the Guatemalan Association of Journalists (APG) was murdered. José León Castañeda had been the victim of several assaults against his physical safety and had been subjected to several death threats. These included those made by the Secret Anticommunist Army (ESA) and by the representatives in the current national legislature. The democratic and popular organizations have interpreted the murder of José León Castañeda as an assault against freedom of expression and believe that this crime is part of a step-up in the violence against press workers.
According to information published by the social communication media José León Castañeda was kidnapped by two armed men driving a Bronco car (this type of car is one of those most used by the government security forces). This information was given by the father of the murdered journalist. After the abduction, José León was found thrown on to one of the city streets, and it was reported that his death was due to a cardiac arrest. Nevertheless, upon demanding the opinion of the autopsy, it was revealed that the journalist had died from the intensity and nature of tortures to which he was subjected: blows, pulmonary hemorrhage and asphyxiation. SIMCOS has remarked that this is a new method of elimination used by the terrorist forces, because they do not make use of the coup de grace.
2. In a note dated June 25, 1980, the Commission forwarded the pertinent parts of this denunciation to the Guatemalan Government, asking it to provide the corresponding information.
3. In notes dated December 16, 1980 and April 20, 1981, the Commission addressed itself again to the Guatemalan Government, repeating the request for information.
WHEREAS:
1. Thus far the Government of Guatemala has not answered the Commission's request for information.
2. Article 39 of the Regulations provide as follows:
Article 39
1. The facts reported in the petition whose pertinent parts have been transmitted to the Government of the state in reference shall be presumed to be true if, during the maximum period sect by the Commission under the provisions of Article 31, paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
RESOLVES:
1. Based on Article 39 of the Regulations, to presume true the facts reported in the communication dated November 19, 1980, concerning the kidnapping, torture and murder of journalist José León Castañeda.
2. To declare that the Guatemalan Government violated Articles 7 (Right to Personal Liberty), 5 (Right to Humane Treatment) and 4 (Right fo Life) of the American Convention on Human Rights.
3. To recommend to the Guatemalan Government that it investigate the facts reported and, if appropriate, that it punish those responsible, and that it kindly inform the Commission within sixty days of whatever decision it adopts.
4. To make this resolution known go the Government of Guatemala and to the denouncing parties.5
6. In addition to the cases being processed in accordance with the regulations, the Commission has received and examined several reports and documents containing countless examples of illegal torture and pressure, including the following:
a. On January 8, 1980, Aurelia de J. Monterroso and Carmela Acajabon were found in the capital with signs of torture, with blows and knife and bullet wounds; and on March 24 of that year, Magali Rabanales, teacher, was tortured.
b. Mr. Gregorio Yuja Xona, a campesino from Quiché, survivor of the capture of the Spanish Embassy in January 1980, was taken by armed men from the hospital where he was convalescing and later was found dead with signs of torture.
c. Liliana Negreros, and more than thirty persons were arrested on February 3, 1980, when they were taking part in the funeral of the campesinos who died in the tragic events that occurred in the Spanish Embassy. According to available information, members of the national police force made the arrest. Their bodies were found later in a gully a few kilometers from the capital and had around their throats topes tied to wooden trunks. It is believed that the deaths were due to garroting.
d. On May 3, 1980, several unionists were detained when the National Workers Confederation was broken into. They reappeared alive in Guatemala but had obviously been whipped. On June 14, 1980, engineering student Edwin Roberto Paz appeared dead in the capital with signs of having been strangled and tortured.
f. On June 24, 1980, the journalist Belte Elvidio Villatoro appeared dead with evidence of having been beaten and strangled.
g. On August 24, 1980, military police forces arrested 16 unionists of the National Workers Confederation in Escuintla. On that occasion, Mr. José Luis Peña, who later was found dead with visible signs of torture, was arrested.
h. On October 22, 1980, Sonia Nohemi Mendoza and María Ordoñez Velásquez were kidnapped and tortured. The former had her throat cut and the second was strangled in Huehuetenango. In November 1980, María Inés Bonilla was kidnapped and murdered on the Chimaltenango road, and showed evidence of having been tortured.
i. On December 6, 1980, the body of university professor Leonel Roldán S. was found with evidence of having been tortured. He had been kidnapped on November 17, 1980.
j. On December 18, 1980, Messrs. Vicente, Israel and José Ordóñez Pol were found dead and blindfolded along a road in Sacatepequez.
7. Upon examining all of these cases and other overwhelming information received, the Commission cannot but reach the conclusion that the protection offered by the Guatemalan Constitution in prohibiting the application of physical and moral torture, cruel treatment, or infamous punishment or acts is no more than theoretical, because in practice, as seen daily, the public authorities or paramilitary groups connected to them, rather than trying the victims, are accustomed to submitting them to atrocious torture with the apparent intention of having this serve as a warning to the population.
Notes________________
1 Article 5 of the American Convention on Human Rights establishes the following: “Right to Humane Treatment. 1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person. 3. Punishment shall not be extended to any person other than the criminal. 4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons. 5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors. 6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.”
2 Articles 45, 51, 55 and 56 of the Constitution. Title I of the Second Volume of the Guatemalan Criminal Code jointly governs crimes against the life and the integrity of persons; and Title IV jointly governs crimes against freedom and the safety of persons.
3 The aforementioned conclusions appear in the communication addressed by both organizations to the Inter-American Commission on Human Rights on October 11, 1979, after a joint mission of those organizations visited Guatemala in March 1979. Since then, as has been stated elsewhere in this report, the conditions in the country have become considerably worse.
5 Dr. Francisco Bertrand Galindo disqualified himself from hearing and deciding this case, and stated that he was doing so because he was residing in Guatemala when the events it refers to are said to have occurred.