CHAPTER II

LEGAL AND INSTITUTIONAL GUARANTEES

I. NATIONAL LEGISLATION

The Guatemalan Constitution (1985) is one of the most enlightened in the region in protecting human rights. It provides that:

The State is organized to protect the person and the family; its ultimate goal is realization of the common good.

It is the State's duty to guarantee to the inhabitants of the Republic life, liberty, justice, security, peace, and comprehensive personal development.

The State guarantees and protects human life from conception, as well as integrity and security of the person.

In Guatemala, all human beings are free and equal in dignity and in rights.

Also the Law (at the constitutional level) on amparo, Habeas Corpus and constitutionality provides that

Art. 3. The Constitution takes precedence over any law or treaty. However, on human rights issues treaties and conventions accepted and ratified by Guatemala take precedence over domestic law.

Defense remedies and Constitutional control in Guatemala and their effectiveness

The remedies of habeas corpus, amparo and unconstitutionality are the main legal measures prescribed for the immediate defense of human rights.[18]

The law provides that a writ of habeas corpus may be filed without formalities by any person even without being an accredited representative, with any court or judge, and the procedure for doing so is simple and without formalities. After receiving the writ or taking cognizance of the fact of an illegal detention, the court must decree habeas corpus, order that the party be brought before it, and that the record of his detention must be submitted to the court (who, when, and why was the order given and executed, in whose custody the party is held). The magistrate must go to the place of detention or where he suspects the place of detention to be, in the case of illegal of detention or risk of mistreatment, and in the case of persons who have been kidnapped or have disappeared.

Statistics of the Secretariat of the Supreme Court show that, despite receiving in two years and a half (August 1987 to December 1989) 5,729 writs of habeas corpus and the designation of a trial judge for almost all of them (5,517), these judges did not achieved the objective of the habeas corpus in 80% of the cases (4,128) either because of lack of resources or transportation, lack of cooperation from the police or the military offices concerned to bring the party before the court, either because of threats or intimidations or the impossibility of determining possible secret places of detention or "clandestine jails."[19]

In the remaining 20% of the cases handled (1,202), 568 persons were not found in any detention center in the country, 187 were found, but were not legally consigned to them, in addition to the 4,218, cases already mentioned, that were shelved filed and remain under investigation," which in practice means that the case has come to a standstill.

During this study, a human rights defense organization, the GAM, which has filed the largest numbers of writs (151 for 159 persons), reports that only 4 were freedom as a result of the remedy, and 3 (European citizens) were released because of pressure from their embassies. Of the remainder they report, 10% appeared to have been tortured to death and the fate of the others could not be ascertained.

The chapter on Forced Recruitment contains cases showing how this remedy is ineffective in most cases of this kind.

The new draft Code of Criminal Procedure (see below) submitted by the Executive Branch to the Congress in April 1991 establishes a special verification procedure for cases where habeas corpus has failed, but where there are also grave suspicions that the person has been detained illegally. The new Code of Criminal Procedure became law in December 1972 by Congress, and will be implemented in 1994.

The remedy of amparo

The remedy of amparo is established in the Constitution (Art. 265) to protect persons against violations of their rights or to restore those rights if they were violated. Chapter III in the section on the property rights of Guatemalan Maya-Quiché reviews the relative effectiveness of this right.

The Court of Constitutionality recognizes remedies of amparo against sentences. From April 1991 to April 1992 it handed down 189 rulings on remedies of amparo, 37 of which (20%) were declared valid and 152 (80%) were ruled admissible.

During that period it handed down 18 rulings on unconstitutiona-lity, 5 finding that the allegation was admissible (that is, that the Government's disputed action was unconstitutional), and 13 that it was inadmissible.

The Court of Criminal Procedure and its reform

In August 1990, months before President Serrano took office, the Harvard University team, which was assisting and advising the judiciary in improving and modernizing the administration of justice and establishing oral procedures in criminal trials, withdrew from the program and left the country, stating that

Any aid and advice was a complete waste of time, in a context of violation and lack of respect for human rights, without the possibility of punishing such violations and still less of correcting them.[20]

In the present administration, the judiciary has taken on the task of promoting the reform of the Criminal Justice System.

To accomplish this, a Draft Code of Criminal Procedure has been drawn up,that became law in December 1992. The Code provides for oral and public trials, and greater participation for public prosecutors under judicial control in investigations, simplifies procedures, modifies the function of judges, so that they can only "judge and execute the judgment" as required by the Constitution, and establishes judicial control over the execution of penalties. It establishes greater procedural guarantees and defense in trials, expands publicity of the judicial process by permitting greater popular control over the activity of judges, and permits greater participation of victims in the process.

The Commission is pleased by the reform of the Code of Criminal Procedure and hopes that the Legislative Branch first of all, and the Executive and the Judiciary as well will promptly implement the reforms. Without an efficient and effective criminal justice system, there are no guarantees for human rights. The present system, as stated by the Judiciary in its Explanation of Reasons for the Reform is "bureaucratic, secret, and depersonalized, it judges cases and not persons, and is slow, overburdened, distrusted, costly, isolated from the life of the community, and uncontrollable and it generates impunity."[21]

The Court of Constitutionality

As was indicated by the President of the Court of Constitutionality,[22] this Court acts to protect individual rights when it understands that a right claimed is in the interest of society, that is, that in the specific individual case the right reflects a public good for the preservation of society itself.

The Court is also responsible for considering popular actions, a new procedure introduced by the 1985 Constitution, whereby any citizen may have recourse to the Court to challenge the constitutionality of a government action. In the Court's six years of existence, it has handed down 15000 decisions, which according to its President have in all cases been complied with by the Government.[23]

The Office of the Human Rights Ombudsman (Procurador de Derechos Humanos)

Establishment of the Human Rights Ombudsman as an agent (Commisionado) of the Congress of the Republic is one of the major advances in Guatemala's political organization for the defense of human rights.[24] The Commission has found that the Human Rights Ombudsman has achieved concrete results in his work and has established an impartial position that has earned him credibility. His activities extend throughout the country through the Auxiliary Departments.

Chapter IV on the Right to Life and to Human Treatment reviews this aspect of his duties. In addition to these rights and those concerning security of the person, freedom of expression and association, forced recruitment and similar problems, he also intervenes in cases concerning right to education (relocation of uprooted schools, bureaucratic delays); irregular military recruitment; family rights (cases of mistreatment, abandonment); the right to a healthy environment, and to sports, the rights of indigenous people, union and labor rights; and economic-social rights (land, housing, cooperatives, neighborhood administration).[25]

His 1992 report and its resolutions--which are provided regularly to this Commission-- are eloquent testimony to the varied problems encountered throughout the country and the efforts and ability to settle them this government official in conjunction with others. The Commission has selected from this extensive report a few cases as an example of the range of his action throughout the territory of Guatemala:

The Human Rights Ombudsman intervened in 42 cases of arbitrary deprivation of life, including the death of the student JULIO ROBERTO CU QUIN during the "Strike of Suffering" (Huelga de Dolores) and the case known as the MASSACRE OF PERONIA. Likewise, among many others regarding the right to assembly and expression of the peasants of CAJOLA; and the forced disappearance of MARITZA URRUTIA.[26] He also intervened in cases concerning the health care of the people, particularly the death of JUAN DANILO GOMEZ AGUILAR, who lost his life because of lack of care in the emergency room of a hospital in the capital city.

To give an idea of the importance and type of the activities of the Auxiliary Departments of the Office of the Human Rights Ombudsman in 1992, in addition to cases on the right to life and humane treatment, we will cite among hundreds of other cases, the following:

- In Alta Verapaz, mediating a conflict between inhabitants of the Municipality of Santa María Cahabon and the Municipal Authorities.

- In Baja Verapaz, mediating problems between parents of students and school authorities, because of teachers that were not attending to their duties.

- In Chimaltenango, to protect the life of citizens threatened by members of the army.

- In Chiquimula, defending the work of pastors of the Evangelical Church being obstructed by the Municipality.

- In El Progreso, in various educational services problems.

- In Escuintla, in problems of water use and irrigation rights.

- In Huehuetenango, exhuming a cadaver in a clandestine grave site, as a result of which the Military Commissioner suspected as being responsible was arrested.

- In Izabal, in conflicts between peasants and landowners.

- In Jalapa, resolving problems of irregular military recruitment, and lack of judicial attention for persons without resources.

- In Jutiapa, inspecting the situation of patients in hospitals and prisoners in jail.

- In El Peten, resolving problems of disappeared persons in cooperation with the Belice Human Rights Commission, and protecting the cultural heritage (the monument "El Hombre de Tikal").

- In Quetzaltenango, regarding abuses of police authority.

- In El Quiché, where residents who were illegally imprisoned, tortured and were to be murdered, were rescued from the public jail.

- In El Nebaj, El Quiché

- In Retalheu, mediating a conflict between residents and the Municipality of San Mateo Ixtatan.

- In Sacatepequez, mediating with the police and military authorities regarding irregular recruitment and abuse of authority.

- In Santa Rosa, to avoid forced participation in Voluntary Self-Defense Committees.

- In San Marcos, to mediate and resolve student petitions in the National Business Sciences School.

- In Sololá, to prevent the eviction of residents by the PAC in the town of Guineales, Ixtahuacan, and resolving conflicts with the municipal authority.

- In Suchitepequez, monitoring the procedures for military recruitment; and in health campaigns.

- In Totonicapan, in family problems and deterioration of the environment.

- In Zacapa, in socio-economic problems, caused by extreme poverty.

The Commission wishes to stress the importance of this action that has been extended to every corner of the country, for the ability to mediate and peacefully resolve conflicts, preventing violations of human rights, and exacerbation and escalation of these problems. Undoubtedly, the Human Rights Ombudsman has succeeded in resolving many tense situations both between private individuals and between citizens and government officials, some of which might have led to acts of violence and loss of life.

In August 1992, the Human Rights Ombudsman created the Guatemalan Chapter of Ombudsmen, composed of high judicial magistrates, authorities of the principal public, academic institutions and representatives of other sectors of Guatemalan society.

Reactions to the work of the Human Rights Ombudsman

In the summary of his 1992 report, the Human Rights Ombudsman points out:

Due to the fact that in the last months of the year the government's attitude was lack of acceptance and support for the activities and decisions of the Human Rights Ombudsman, I request the Congress of the Republic to support and back the institution of the Human Rights Ombudsman, and proposed that the Executive Branch, through whatever parliamentary mechanism it regarded as suitable, adopt a change in attitude that would reflect in deeds what was stated in the government's statement.[27]

Indeed, among others, a determination by the Human Rights Ombudsman regarding the responsibility of the security forces in the Maritza Urrutia case was publicly criticized by the Minister of Defense.[28]

The Commission considers that the Constitution assigns specific responsibilities to the Human Rights Ombudsman, and that his decisions are to be respected and if there is disagreement with them, appropriate legal or administrative actions should be taken.

The Presidental Commission to Coordinate Executive Policy in Human Rights (COPREDEH)

President Serrano established COPREDEH by a government decision of July 12, 1991 to coordinate the actions of the Executive Branch and to ensure communication with the Judiciary and the Human Rights Ombudsman. This Commission is composed of a personal representative of the President, the Ministers of Foreign Affairs, the interior, National Defense and the Attorney General of the Nation, and because of its standing, acts at the highest government level.

A report submitted to this Commission by COPREDEH in late 1992 lists the plans and achievements in the Executive Branch's human rights activities.

In the struggle against impunity, among other actions, it has double the budget of the Public Prosecutor, which has conducted investigations and filed judicial complaints against corruption in various State agencies.[29]

It also mentions as examples of the struggle against impunity, the conviction of the security forces tried for the Santiago Atitlan massacre; the arrest and conviction of police officers for the murder of the street child Nahaman Carmona; the trials for the murders of Myrna Mack and Michael Devine; the fact that the Constitutional President of the Republic has testified at the trial of the case of the Puerto Quetzal trailer workers [traileros]; similarly, former President Cerezo and the then top military leadership testified in court in such cases as that of Sister Diana Ortiz. All of this--COPREDEH notes--is totally new in Guatemala.

It also mentions the administrative reorganization of the Interior Ministry and of the National Police, whose highest officials are now civilians; and the inclusion of human rights issues in the training of police officers, from the police academy on.

Regarding improvement of justice, the Commission notes the US$20 million expansion in the budget for the Judiciary, the increase from 3 to 75 attorneys to supervise the courts; the establishment of 133 juvenile courts in the interior with bilingual officers; the training of judges for criminal, juvenile and family cases, and the establishment of the Judicial Studies School.

Regarding new legislation, bills were drawn up and introduce in Congress in April 1991 to establish the Office of the General Prosecutor of the Republic, the new Code of Criminal Procedure, and the new Criminal Code. Likewise, Congress approved the International Covenant on Civil and Political Rights in February 1992.

The Public Prosecutor's Office

The duties of the Public Prosecutor in Guatemala are performed by an autonomous institution of the Executive Branch, the Office of the Attorney General of the Nation (la Procuraduría General de la Nación), responsible for intervening "ex officio" (without any private action being necessary) when a government official is accused of committing abuses or other illegal acts.

During its visit, the Commission was informed by the Attorney General, in charge, Tuna Valladares, representing the Office of the Public Prosecutor, that it was the government's goal to strengthen its action in the defense of human rights and of legality in general. To that end, they were planning to increase the present number of prosecutors from 58 (36 in the capital and 22 in the interior) to 350, so that each city of over 5,000 inhabitants will be directly served.

The Attorney General for that period was Dr. Acisclo Valladares Molina, whose term ended January 5, 1993. According to information gathered by the Commission, the Office of the Public Prosecutor under the Presidency of Dr. Valladares Molina assumed an active and imparcial role in investigating and prosecuting government agents connected with the drug traffic, and in indictments against military officers and enlisted personnel involved in murders and human rights violations. In most of these cases[30] convictions were obtained. In the case of the two soldiers who massacred four members of a family in Ciudad Peronia, Villanueva, a capital punishment sentence was obtained against them. Likewise, former President Marco Vinicio Cerezo Arévalo and other officials of the previous administration of the Democratic Christian Party were investigated for embezzlement, and the President of the National Electrification Institute, Salvador del Valle Monge, was tried for crimes against the public treasury.

In another trial instituted by the Public Prosecutor, the President of the National Housing Institute, Rafael Escobar Donis, was accused of responsibility for the bankruptcy of that institution.

Recently different charges were filed against Attorney General Acisclo Valladares, which led to his suspension from office. Intimidation of the prosecutors of the office of the Public Prosecutor has been reported to the Commission and by the Guatemalan press.

The National Police

The Commission received information on the decision of the Minister of the Interior, Francisco Rolando Perdomo Sandoval to clean up the police, who explained in statements of December 8, 1992 that the problem for Guatemalans is that there are two kinds of criminals: common criminals and those belonging to the security forces.[31] Evidence of this determination to clean up is that 18 national police agents were fired and arrested, and turned over to the courts, according to a police department spokesman.

Along with this cleanup, there is the already mentioned introduction of human rights courses in the Police Academy.

The Commission received information from the Interior Minister in charge of the police that, while common violence continued (in Guatemala City 7 violent deaths occurred daily), deaths from police action have been substantially reduced.

GUATEMALAN JUSTICE AND IMPUNITY

During the Commission's visit to Guatemala, high officials of the Executive Branch reported to it that despite the efforts of this administration to obtain due process and punish government agents responsible for violations, the Justice Department faced many internal difficulties and external threats in achieving this.

Likewise, information was submitted on the successes obtained by the present administration in indicting members of the security forces implicated in crimes and violations of human rights.

In-depth analysis of the obstacles facing Guatemalan justice, exemplified by the murder of Myrna Mack

The trial for the murder of the anthropologist Myrna Mack on September 11, 1990 is a clear example that it is possible to break the impunity of state agents that violate human rights, and that it is possible to obtain results despite all of these difficulties. On February 12, 1993, Judge Carmen Ellgutter de Figueroa announced conviction of Noel de Jesus Beteta Alvarez for the murder of Myrna Elizabeth Mack and for serious injuries inflicted on Emilio Ramírez, and sentenced him to a 25 year term noncommutable prison and a fine of Q10,000 to the injured child. The judge denied the request for trial of six other possibly implicated persons, as requested by the private party making the accusations. The convicted man was a military member of the Presidential Guard during the presidency of Vinicio Cerezo and was a Specialist Sergeant Major in the Security Section of the Presidential Supreme Command. The judgement was appealed, but it was confirmed by the 4th Chamber of the Appeals Court.

The anthropologist Myrna Mack had been since 1988 conducting an anthropological study on institutional policies toward those displaced by the violence[32], including field work in Cobán Alta Verapaz and the "Ixil Triangle" in El Quiché, under the auspices of Georgetown University, Washington, D.C., U.S.A., and the Ford Foundation. She was founder of AVANCSO, Association for the Advancement of the Social Sciences in Guatemala.

A brief review of the difficulties encountered in the trial shows the situation faced by the Justice Department and its collaborators in prosecuting cases of this kind in Guatemala, as well as the fact that these difficulties can be overcome if there is pressure from public and political opinion.

The police lost or destroyed all of the key evidence of the case and demonstrated negligence in investigating it:

a) No fingerprint evidence was ordered, protective plastic bags were removed from the victim's hands, and analysis of the hair and skin tissue under her fingernails was made by police technicians when it should have been made by forensic physicians.

b) No tests were made on Dr. Mack's vehicle to search for fingerprints or other evidence, and the vehicle was allegedly wet, although rain did not fall until the following morning.

c) Laboratory examination was not made of the victim's clothing, which might have contained the blood of her attackers, and therefore, no evidence was supplied.

d) No police cordon was set up to keep passersby away from the footprints near the body, so that photographs of the scene of the crime show bloody footprints.

e) Witnesses of the murder gave a detailed description of the men engaged in surveillance of the victim's residence and the AVANCSO offices, and composite pictures were prepared of them, but the police were negligent in identifying or apprehending any suspect.

f) The morgue photographer testified that no photographs were taken of the knife wounds because the photographic equipment malfunctioned at the last moment.

g) The homicide investigation was confined to copying reports verbatim.

h) It was concluded prematurely that the motive for the crime was robbery, despite the fact that nothing had been stolen, except for a portfolio, which contained working documents and two checks, which were never cashed.

i) The existence of a police report of September 29, 1990 was kept secret. The report showed that interrogations supported the conclusion that Myrna Mack's murder was well planned and not a crime of opportunity. The report also contained the name and photograph of Noel de Jesús Beteta Alvarez, who was identified as a possible suspect, thereby involving the army in the crime.

j) Despite the fact that morgue technicians testified that there was evidence that more than one person participated, an investigation was conducted only against Jesús Beteta, which prevented analysis of the context, motives and chain of command.

k) Out of a list of 76 questions provided to the judge for the testimony of General Godoy, the judge accepted only 5, stating that the others, designed to establish the context and motive were irrelevant. When the general again returned to court, Judge Sagastume prevented both the private accuser and the public prosecutor from putting those questions to him.

l) When the accused testified, Judge Sagastume authorized only 3 of the 41 questions drawn up by the private accuser, and rejected all those connected with the motive of the crime and the chain of command of superiors who might have ordered the crime.

m) The witnesses interrogated for preparation of the September 29 report were called to testify before to the appeals court in June 1991, and retracted (presumably because of having been threatened) the statements in the September 29, 1990 report that had been concealed.

n) Detective Mérida Escobar, the policeman who was in charge of investigating Myrna Mack's homicide, who had drafted the September 29, 1990 report pointing out that the motive of the crime was political, and who proved the cover-up and participation of high military chiefs was murdered. His murder occurred days after he had ratified that report.

nn) On June 28, 1991, the judge of the Appeals Court second section ordered the arrest of Jesus Beteta, but the order was not transmitted to the National Police until July 8 of that year.

o) On September 16, 1991, the Judge of the Appeals Court Second Section excused himself from hearing the case saying he was unwilling to subpoena government witnesses, including members of the National Police, and to request the National Defense Staff Officers to submit evidence on the identity of Beteta's superiors.

p) The National Police investigator and co-author of the September 29, 1990 report, Julio Pérez Ixcajop, fled the country in October 1991 after having been dismissed from his post without explanation, deprived of his weapon, and placed under surveillance.

q) According to public statements of the claimants, they have proof that the Guatemalan Government never asked United States authorities to investigate the whereabouts of Beteta's family or acquaintances in the United States where he had fled, nor to locate, arrest and extradite Beteta for trial in Guatemala. Instead he was arrested by the Los Angeles Police Department at the request of the U.S. State Department because of his illegal status.

r) From July 1991 to January 1992, the Defense Ministry obstructed the efforts of the court to obtain information on the suspect Noel de Jesús Beteta Alvarez, and when they did provide information, it was incomplete and contradictory.

s) Former President of the Republic Vinicio Cerezo, of whose guard the accused was a member, did not appear in response to the judicial subpoena of September 11, 1992 to give testimony, and gave no explanation for his failure to appear. However, the Office of the Public Prosecutor requested that he be compelled to testify, but Judge Sagastume rejected that request.

t) Two contradictory police reports were drawn up in the case of the Mérida Escobar crime, and a case was fabricated of the investigator's murder (supported by evidence), making the alleged murderer confess under threat of death. A few weeks after the death of Detective Mérida Escobar, a public campaign to discredit him began.

u) February 7, 1992, the judge hearing on the case announced that Beteta should have been tried by a military court, a fact which delayed the trial.

v) In late 1991, members of the Judiciary and journalists reporting on the case were threatened (see the chapter on Freedom of the Press).

w) On February 17, 1992, the judge hearing the case took steps to transfer it outside his jurisdiction.

x) Witnesses Juan Carlos Marroquín and José Tejeda who were to testify on January 25, 1993, fled the country after being threatened. These threats consisted of notes to Tejeda's home and shots fired against Marroquin's home and vehicle, on January 23, 1993, the day after the press announced that they would testify on the 25th of that month. Tejeda's home was kept secret even from the court because he was a "protected witness," but the notes were delivered there.

y) On January 24, 1993, two days after the attacks on the witnesses, Dr. María Esther Palacios Suárez, a physician in the Military Hospital, took the stand and retracted her previous statement to the court. In that statement, made on October 1992, she had declared that she had treated Beteta for a wound in a finger and that Beteta was able to use a knife to cause a wound such as that inflicted on the victim. In her new statement, she said that on the day of the crime Beteta was physically and psychologically unable to cause such a wound, and that he did not recover from his incapacity until a week later.

z) On February 10, 1993, Clara Arenas, Director of AVANCSO, was threatened with death by several individuals who seized the AVANCSO cleaning woman and told her that if Helen Mack (sister of Myrna Mack) returned to that institution's offices, they would kill Clara Arenas.

aa) On February 12, 1993, Dr. Carmen Ellgutter de Figueroa, the judge in the case, convicted Jesús Beteta for the murder of Myrna Mack, and for seriously wounding Emilio Ramírez, as indicated at the beginning of this section. The conviction was the last the judge handed down as a trial judge, because she was promoted to the Supreme Court. That promotion was described by the press as an attempt to remove her from the case before she could rule on it. The conviction was appealed by the Public Prosecutor, the accused, and by the private accuser Helen Mack.

The judgment indicates that other three high-ranking military officers are not prosecuted, as it was requested by the private accuser, who indicated their names and offered incriminatory evidence. The judge said that they are not prosecuted because the Attorney General has not supplied their names.

According to the information of the Government, the State of Guatemala through its Attorney General, parallel to the private accuser Helen Mack, continues to bring actions other possible responsible parties.

Trial of human rights violators during the administration of President Serrano

Executive Branch officials have provided to the Commission information on the present administration's policy of pressing investigations and trials in cases of human rights violations, thereby ending the impunity that was the rule previously, as indicated above in the section on COPREDEH. The progress made in some cases --including the analyzed case of Myrna Mack--during this period shows that valuable efforts are indeed being made to that end.

- The sentencing to 30 years in prison of the two military commissioners and former patrol officers of Ixtahuacan, Huehuetenango. Both commissioners tortured, murdered and buried a person in 1983, whom they accused of being a communist only because he refused to join the defense patrols organized by the army. These sentences were obtained through the families' complaint filed with the Assistant of the Human Rights Ombudsman in the Department Headquarters, and thanks to the investigations of the Office of the Human Rights Ombudsman (Prensa Libre, January 5, 1993).

- Four policemen were convicted for the murder of a thirteen year old street child (Naham Carmona), a case described in Chapter IX. However, the directors of Casa Alianza protested against the delays of seven judges who had not gone forward with 30 trials for crimes against children in the last year and a half despite the fact that the evidence submitted is abundant.

- Tránsito Gálvez Alvarez and Juli Hernández Canahui were sentenced by the First Criminal Court of Salama, Baja Verapaz, to 26 years in prison for their participation in the massacre of the Rosales García family.

- Six soldiers accused of the extrajudicial killing of 12 persons on the Taxisco Highway in Santa Rosa on August 8, 1991 were subpoenaed before a hearing to be held on May 2, 1993. The soldiers' case was dismissed by a military court, which was appealed by the civilian accuser. The Attorney General appealed the verdict of acquittal, and the President of the Republic himself presented testimony in full respect for judicial authority and the separation of powers.

- The First Criminal Judge sentenced six HUNAPU agents to 12 years in prison for the murder in April 1992 of university student Julio Rigoberto Cu Quim, during the procession "Huelga de Dolores." The cases of 15 other HUNAPU agents were dismissed. The Public Prosecutor together with the Rector of the USAC and the Students Association have requested the conviction of all of the policemen.

- The Public Prosecutor appealed the military court's ruling dismissing the case of 12 soldiers accused of kidnapping and murdering the American citizen Michael Devine in 1989. Five other soldiers were given a 30-year non-commutable prison sentence.

- Another officer indicted was condemned in April 1993. He escaped the following day from the military prison where he was incarcerated. The President initiated an investigation and removed the chief of that military garrison.

- The investigating magistrate in the case of the alleged kidnapping of Maritza Urrutia, called Leticia Secaira Pinto to testify before the Criminal Court, which excused her under circumstances that are connected with the alleged kidnapping.

- The case of the Marist Brother MOISES CISNEROS RODRIGUEZ. Father Cisneros was known for his work in El Quiché and in the marginal populations of Guatemala City. He was killed in April 1991. The Third Appeals Court reconstructed the crime in January 1993. The three accused persons, the private secretary of Cisneros and his alleged accomplices are being held under preventive detention.

- An army lieutenant and a sergeant were arrested, tried and convicted for the massacre of Santiago Atitlan, which occurred on December 2, 1990. Thirteen Maya-Quiché peasants (including nine children) were killed and 20 wounded when soldiers opened fire against peasants marching toward the barracks. The Attorney General has appealed the 16 year prison sentence, and has asked for a more severe sentence.

As indicated throughout this report, in some cases trials have not got anywhere. This is shown by the following cases, among others:

- Case of Michael Devine. He was murdered in Poptun, Peten, on June 8, 1990. Captain Hugo Contreras and nine soldiers were charged, and two colonels, Roberto Garcia Catalan and Guillermo Portillo Gomez were implicated in the murder. The case of Contreras and the two colonels was dismissed by a military court. In January 1992, however, an appeals court ordered a new trial of Captain Contreras. In March 1992, four of the nine soldiers tried accused the other five of having committed the crime and Contreras as having ordered it. Despite the substantial evidence against them, the colonels were not tried.

- Case of Sister Dianna Ortiz of the Catholic Urseline Order. After threats of death and being attacked by a man who told them to get out of the country, Sister Ortiz was kidnapped from a convent in Old Guatemala City and taken by a police officer to a clandestine jail where she was interrogated, raped and tortured. Her case has already been handled by six judges and a special prosecutor. The latter has refused to interrogate Sister Ortiz, and instead, has affirmed through paid announcements in the newspapers that the Sister's testimony is contradictory, and that her religious order controls her. Allegedly, the evidence submitted by the Sister and other witnesses implicates a chief of the Civil Patrol of Santiago Acatan, Huehuetenango, for threatning the witnesses and keeping them under surveillance. However, no action has been taken either to interrogate him or arrest him, according to information in the Commission's possession.

- Case of Gilda Flores and Hector Oqueli. On January 12, 1990, Dr. Hector Oqueli Colindres and Gilda Amparo Flores Arevalo were kidnapped on the way to the airport of Guatemala City and then murdered by unknown persons. Dr. Oqueli was the Undersecretary General of the National Revolutionary Movement, a Salvadoran political party, and Secretary of the Socialist International for Latin America and the Caribbean. Flores was a Guatemalan labor attorney. According to witnesses, the passport of Oqueli was retained by the authorities on her return the previous day, and the stationwagon in which their bodies were found had been confiscated from its owner under armed threat by persons who carried identification as members of the National Police. The Commission has issued a resolution on this case, which was published in its 1991 Annual Report, placing the responsibility on the Guatemalan Government.

- Case of Dinora Perez. On April 25, 1991, Dinora Perez, labor leader and founder of the Guatemalan Workers Labor Union (UNSITRAGUA) and candidate of the Guatemalan Unity Party (Leftist) in elections prior to her death, was murdered by two men who were waiting for her outside her house. The trial has made no progress despite the fact that there are allegations that the perpetrators are members of G2, the army department of intelligence.

The Commission has reviewed the documentation of these and other cases, and concluded that there really is a greater will during this administration than in the previous one and in the jurisdictional agencies to pursue cases against government agents who violate human rights, although the previous account and the rest of the report show the difficulties in achieving this.

Moreover, in none of the cases have convictions been obtained against the superiors of the direct perpetrators, nor against present or past high commands of the security forces.

In the words of the President of the Supreme Court, the present criminal justice system is "among other negative characteristics, a 'generator of impunity.'" The Commission shares that assessment, although it understands that reform of the criminal justice system is a necessary but not sufficient condition for putting an end to such impunity. Also necessary are purging of the police, strengthening of the action and autonomy of the public prosecutor's office, and ongoing support of all of the influence of the Executive Branch and the Legislature.

It is likewise clear that the role of the military authorities, particularly the military justice system, is a key for this purpose. The reason citizens give a monopoly on armed action to their military bodies is to perform their duties legally and professionally, and to ensure the proper comportment of its members. If the chain of command and the military justice system are unable to supervise and ensure the legality of the actions of the military personnel--or even worse, often obstructing or intentionally concealing actions--the very nature and justification of the institution disappears.

[18] Articles 263 and 264 of the Political Constitution.

[19] Caballero, M.E. and Sierra, J.A. "La Eficacia del Recurso de Exhibición Personal in Guatemala." CIEPRODH. Studies No. 1. Guatemala, 1991. The Commission has received eyewitness testimonies and other evidences about the existence of clandestine jails.

[20] Harvard-Guatemala Criminal Justice Project. Letter to the President of Guatemala. August 1990.

[21] The Judiciary "Reform of the Criminal Justice System," Guatemala undated (1992?).

[22] Address of Adolfo González Rodas at the end of his term, April 1992. In "Democracia y Defensa Constitucional," Guatemala 1992.

[23] González Rodas, op cit.

[24] The Constitution gives the Ombudsman the authority to supervise government administration, promote respect for human rights by the administration; investigate and denounce administrative actions that are damaging to the interest of persons; investigate complaints of human rights violations; make private or public recommendations and censor administrative actions; and promote judicial or administrative remedies or actions when appropriate. He is appointed by the Legislature for five years and may only be removed by impeachment. In the performance of his duties, he is not subordinate to any organization, institution or official, and shall act with absolute independence (54-86 and 32-87).

[25] Informe Circunstanciado de Actividades y de la Situacion de los Derechos Humanos in 1992, Ombudsman Human Rights, Guatemala, 1993.

[26] These cases, in which the courts have condemned the officers of the government responsible or that are in an advanced stage of trial, are reviewed in other sections of this report.

[27] Human Rights Ombudsman. Summary to the Congress of his 1992 Report. Guatemala, 1993.

[28] In Prensa Libre, January 1993.

[29] See in this Chapter, "The Public Prosecutor."

[30] "Prensa Libre" December 2, 1992.

[31] "Prensa Libre," December 9, 1992.

[32] See Chapters VII and VIII of this Report.