禁止酷刑委员会审议危地马拉的报告（部分翻译）

禁止酷刑委员会

2013年5月14日

禁止酷刑委员会今天结束了对危地马拉提交的关于该国如何履行《 禁止酷刑和其他残忍、不人道或有辱人格的待遇或处罚公约》相关规定的第五次和第六次合并定期报告的审议。

Introducing the report, Antonio Arenales Forno, Secretary for Peace and President of the Presidential Commission for the Coordination of Political and Executive Power in Human Rights, said that Guatemala had not brought its domestic legislation in line with the Convention, including the definition of torture.  The issues of military jurisdiction and the subordination of the military to civil authority had been resolved by the Constitutional Court.  Many serious violations of human rights occurred during the internal armed conflict and Guatemala recognized its responsibility to provide redress and compensation for victims.  An Amnesty Law was in place, the Rome Stature had been applicable since 2012 and the restructuring and professionalizing of the National Police Force was ongoing.

Committee Experts expressed concern about the impunity for crimes committed during the armed conflict and stressed that across-the-board amnesty was not an appropriate approach and that the responsibility of the highest levels of authority must be ensured.  Torture must be criminalized, aligned with the Convention, and its consistent definition and description must be included in all the laws.  Experts discussed the situation of human rights defenders who suffered violence and reported attempts by the Government to discredit them and criminalize their activities; the alarming level of violence against women; the overpopulation and overcrowding in prisons and places of detention; and the application of anti-discrimination laws on lesbian, gay, bisexual and transgender persons.

Responding to questions and comments raised by the Committee on Monday, 13 May and today, the delegation stressed that accusations of impunity were inappropriate; Guatemala was only implementing its Amnesty Law approved by the Congress and was abiding by the decisions of its highest courts.  There were no actions by the Government aimed at criminalizing activities of human rights defenders; criminal proceedings were undertaken only against those individuals who had committed crimes.  Measures to address overcrowding in prisons included the building of new facilities, setting up of alternative measures to detention, speeding up of programmes for the prison depopulation, and the development of a new model for detention centres.  Violence against women was a priority for the authorities; a justice centre for crimes of femicide and other forms of violence against women was opened in October 2012 and courts and tribunals had integrated a new appeal mechanism with specialized expertise for crimes of femicide, sexual violence, exploitation and trafficking of people.

The delegation of Guatemala consisted of representatives from the Coordination and Executive Commission for Human Rights, National Commission on Reparations, Ministry of Interior, National Police Force and the Permanent Mission of Guatemala to the United Nations Office at Geneva.

The next public meeting of the Committee will be at 10 a.m. on Wednesday, 15 May when it will start its consideration of the second periodic report of Kenya (CAT/C/KEN/2).

Report of Guatemala

The combined fifth and sixth periodic report of Guatemala can be read via the following link (CAT/C/GTM/5-6).

Presentation of the Report of Guatemala

ANTONIO ARENALES FORNO, Secretary for Peace and President of the Presidential Commission for the Coordination of Political and Executive Power in Human Rights, introducing the report, said that Guatemala was in the process of institutional restructuring and had merged its executive organ for human rights with the Secretary for Peace of the Presidency, set up by the peace accords of 1996 at the end of the internal armed conflict.  Also, the country was making efforts to implement recommendations made to it by various human rights bodies and mechanisms for the improvement of human rights, with the aim of ensuring that various institutions were able to provide data and statistics.  Guatemala had not brought its domestic legislation into line with the Convention, including the definition of torture.  The Constitutional reform was still pending and it needed to be approved by a national referendum, but the issues of military jurisdiction and the subordination of the military to civil authority had been resolved by the Constitutional Court. 

Concerning impunity for crimes committed during the armed conflict, Guatemala did not deny that many serious violations of human rights had occurred and recognized the responsibility of the State to rehabilitate and provide redress for victims.  Nearly 30,000 individuals had been compensated so far and an amnesty law had been agreed to in the peace accords.  The Rome Statute was applicable since 2012.  Acts of violence, persecution and human rights violations committed against human rights defenders could not be attributed to the Government, which supported their work.  In cooperation with the international community, Guatemala continued to restructure and professionalize its National Police Force, which at the moment had 25,000 members, although considering the size of its population, it needed 50,000 policemen.  Mr. Arenales Forno further said that the penitentiary system was facing difficulties, with the increasing population in both pre-trial detention and in prisons.  This increase could be explained by the increase in rates of criminality in the country and the region, and by the growing effectiveness of the police work, investigations and prosecutions.

Questions by Committee Experts

CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur for the Report of Guatemala, welcomed the intention of Guatemala to have the Constitutional Court address the issues of its legislation on torture and its alignment with Guatemala’s international obligations.  It was extremely important to ensure that the police force complied with laws and had a broad remit and sufficient resources.  The experience with private security guards was not positive and a large part of the resources was still being allocated to the army.  With regard to impunity, Mr. Grossman said that there were serious problems in the country and that across-the-board amnesty was not appropriate; the number of investigations into the numerous massacres committed in the country was very limited.  Concerning the responsibility of the highest levels of authorities, the Chairperson wondered whether Guatemala had signed the 1950 Genocide Convention, and said that the issue of impunity was of crucial importance.  Concerning the failure to adopt legal norms and a complete legal framework for the country, there was also a need to ensure their application in practice.  Other issues that were of concern to the Committee that would be raised during the dialogue included the situation of human rights defenders and the situation of women; the role of the police which must be properly trained and must have sufficient resources to operate; and the level of security provided by the State, by armed forces and by private security guards. 

Torture must be criminalized, aligned with the Convention, and its consistent definition and description must be included in all the laws, Mr. Grossman said.  The Security and Justice Law 2011 was still not fully implemented and there were a number of vital bills in their draft forms; what were the plans and timeframes for their enactment?  Efforts had been rolled out to eliminate the practice of community lynching and the high number of violent deaths by lynching, particularly of women, was of concern.  The State must better respond to the serious levels of organized crime which were behind the high incidence of violence in the country; what was being done in this regard?  The Committee was concerned about the situation of human rights defenders who suffered high levels of violence, including murder; how many perpetrators of those crimes were investigated, prosecuted and sanctioned, particularly those committing violence against human rights defenders active on mining issues? There was a growing trend by the Government to discredit human rights defenders and criminalize their activities.  What was being done to modify the system of military justice to ensure that military courts did not try civilian cases?

NORA SVEAASS, Committee Expert and Rapporteur for the Report of Guatemala, commended Guatemala for the many important developments that had taken place over the last years and said that the sentence pronounced by its justice system on Friday, 10 May sentencing Efrain Rios Montt to 80 years of imprisonment constituted a very important milestone for the many victims and persons affected by the genocide.  This was a very important moment which provided an opportunity to continue changes and reforms to fight torture, violence and discrimination in the society.  The progress in transitional justice and in fighting the impunity for violations committed during the conflict was still slow; what support was being provided to families of missing persons and how were witnesses in genocide trials protected?  There had been 409 acts of aggressions against persons working as human rights defenders in 2011; what concrete steps were being taken to stop this violence and protect human rights defenders working in different contexts, including addressing the violence perpetrated by non-State actors?  What was the current state of investigations into the brutal murder of Monsignor Condera, beaten to death two days after releasing a report on the victims of the Guatemalan Civil War? 

The level of violence against women was alarming: 537 violent deaths between January and October 2012.  How many complaints, requests for protection and investigations had there been since the entry into force of the Law on Femicide and Other Forms of Violence against Women?  The Committee was concerned about the criminalization of abortion resulting from rape or incest which forced pregnant women to seek clandestine abortion services, and about the continuing high levels of adolescent pregnancy and maternal mortality.  The Country Rapporteur asked a number of questions concerning training activities conducted by Guatemala, such as whether the training on awareness on domestic violence and violence against women included also male police officers and what were the results of this training; what training was being implemented for the implementation of the protocol for the care of victims of torture and in identification and documentation of torture.  Ms. Sveaass asked about measures to address overpopulation and overcrowding in prisons and places of pre-trial detentions, establishment of a permanent register of all persons deprived of their liberty and the investigations into payment of protection money, “la talacha” and violent deaths in prisons.

A Committee Expert asked about the progress made in setting up the national preventive mechanism as per the provisions of the Optional Protocol, about measures to eliminate the dominance of prison gangs and about the cooperation of Guatemala with the Government of Switzerland in the case of Erwin Sperisen, the former Chief of the Police accused of several extra-judicial killings, who had been arrested in Geneva in August 2012 and given his double nationality would be tried in Geneva.  Another Expert said that more needed to be done to address the issues concerning children and that a comprehensive strategy needed to be in place for street children, abandoned children and child labour and exploitation.   

Other issues taken up by the Committee Experts included the land registry and the system of land ownership; private security guards and whether they were staffed by United States citizens; a specific protocol to investigate crimes of femicide; the regime that applied when a state of emergency was declared; training of judges and lawyers on torture issues; and the application of anti-discrimination laws on lesbian, gay, bisexual and transgender persons.

The delegation was further asked to comment on the protection of judges and lawyers who were targets of organized crime, how the judiciary was supported to deal with the overwhelming number of cases brought to the justice system and could the judiciary initiate proceedings in cases of torture; and the use of the military to assist the police in public security duties, such as combating organized crime and responding to demonstrations and public protests.

CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur for the Report of Guatemala, drew attention to the report published by Amnesty International and asked about progress made in cases of disappeared persons.  The Committee welcomed the establishment of the National Police Reform Commission and asked about the progress made and lessons learned about the process.  How did the witness protection system work in the country, and what resources were provided to this end? 

NORA SVEAASS, Committee Expert and Rapporteur for the Report of Guatemala, noted the importance of combating impunity and the lack of interest to undertake full investigations into the cases of violence that had happened during the armed conflict.  What training on fighting impunity was being conducted in the country?  What was the status of the Velasquez case, a human rights defender kidnapped and killed in 1992?

Responses by the Delegation

In response to these questions and comments and others, the delegation said it was inappropriate that accusations of impunity were levelled just because Guatemala had acted in accordance with its Amnesty Law and had decided on non-retroactivity of its criminal law.  In 1995, Guatemala had criminalized extra-judicial killings and enforced disappearances and had accepted the non-applicability of the statute of limitation on crimes falling under the Rome Statute which it had ratified.  The amnesty in Guatemala had been the fruit of a compromise to bring an end to the armed conflict that was wrecking not only the country but the region as a whole.  The law had been approved by Congress and had and would be used to drive the action forward; genocide and crimes of torture were the only crimes excluded by the Amnesty Law.  The Government would respect the definitive judicial rulings and had always abided by the decisions of courts, including in rulings on whether genocide had taken place in the 1980s.  It was up to the courts and their reading of the Amnesty Law to rule in cases of enforced disappearances and whether retroactivity would apply to the conduct prior to 1995.  It was unacceptable for Guatemala that non-applicability of the Amnesty Law was considered an unquestionable truth, as this would require that the national judicial institutions ignored the norms of criminal or procedural law in force in Guatemala. 

The Government had an agreement with the Pan-American Health Organization to elaborate a law regulating mental health and there were no minors being held in the hospital Federico Mora for mentally disabled patients.  Guatemala was in the negotiation process for the preparation of the law on enforced disappearances and progress was being stalled by the lack of an agreement on the content of the law.  The Constitutional Court had ruled that military courts could not hear civil offence cases committed by members of the armed forces.  The state of emergency was regulated by the Constitution and the Law on Public Order which guaranteed the state of safeguards that would be suspended in each individual case; declaration of a state of emergency needed to be approved by Congress.  Turning to the situation of human rights defenders, Guatemala reiterated that there were no actions aimed at criminalizing their activities; criminal proceedings were undertaken only against those individuals who had committed crimes. 

The law regulating the cooperation of the army with the police was being reformed at the moment.  Preventive detention should not exceed a period of one year and could be extended by courts for an additional period of three months.  Prison overcrowding had been caused by the increase in cross-border crime and the increasing efficiency of the police.  The budgetary allocations for the army were high, which was justified by the cost of the military equipment and materials which were much higher than those needed by the police.  The mandate of the Presidential Commission against Impunity had ended and would not be extended.

A full community-based approach to redress for victims of human rights violations due to armed conflict who had suffered psychosocial consequences had been achieved.  As part of actions to provide redress and promote national reconciliation, there was a need for a coordinated approach which would recognize the damage caused and the responsibility of the State to provide redress.  The psychosocial approach included support to individuals, families and communities aimed to promote their well-being by fostering the development of their capacities and abilities.  The Committee was informed about the provisions of the procedural guide for a dignified exhumation process.  The National Reparation Programme had dealt with over 31,000 victims of human rights violations; 63 per cent were women and 37 per cent were men. 

In terms of the attention given to victims of torture, the National Redress Programme fostered dignity measures before, during and after each event and had most impact on the areas which suffered the greatest level of violence during the conflict, namely Region 7.  The National Redress Programme had integrated the provisions of the Istanbul Protocol into its various procedures for identification and documentation of cases of torture.  The intention of the Government was to extend the mandate of the National Redress Programme.

The Government of Guatemala was implementing a concept of democratic security and was reinforcing its civilian powers to ensure the full promotion and protection of human rights for all individuals.  The framework on the use of military forces had been revised on this basis and it ensured that military forces were always under civilian oversight; at no time did the armed forces operate independently from the police in domestic issues.  Units were created to combat the high level of organized crime, the so-called Task Forces with the aim of monitoring criminal activities and their impact on civilian populations.  They identified the main problems such as murder, abductions, extortion, femicide and other crimes, and undertook investigations through their thematic units.  At the moment, there were 141 registered private security companies and their work was complementary to the police. 

A particular criminal element in operation in Guatemala was the violence against public transport operators and to tackle this phenomenon the cooperation between the police and public prosecutor was being strengthened and there was a specialized unit providing security to public transport vehicles.  The Ministry of the Interior provided protection to prosecutors, judges and magistrates via the national police and those at higher risk were individually guarded.

The national civil police had been born by the peace agreement and was a professional police force which respected the laws and rights; several institutions had merged into the police force, with the oversight provided by the General Inspectorate.  The national police force was undergoing a reform to strengthen it; the National Police Reform Commission had been set up to carry out the institutional process to modernize the force, strengthen democratic rule of law and guarantee the life, liberty and protection of citizens.  Several task forces had been set up to combat the scourge of organized crime and the recruitment of new police officers had been made more professional, transparent and honest.  The national civil police had increased its manpower and resources to combat drug trafficking, including at airports.

The overcrowding in prisons was a worrying situation and overpopulation had reached 232 per cent in March 2013.  New prisons and facilities were being built, the judicial system was being streamlined with the aim to bring the courts to look closer into alternative measures to detention, and the programme for prison depopulation was in place to speed up the processing of inmates due for release.  A new model for detention centres had been created which would allow an improved rehabilitation process and better security control, while the Prison Road Map would provide for education to prison guards.  Much effort was being put into devising strategies for social rehabilitation.

The enactment of the law against femicide and the law against sexual violence and exploitation had resulted in the creation of institutions and specialized judges, as well as on criminal prosecution and imposition of sanctions.  Violence against women was a priority for the Government and this crime constituted 25 per cent of complaints received by the authorities.  A justice centre for crimes of femicide and other forms of violence against women had been opened in October 2012 and courts and tribunals had integrated a new appeal mechanism with specialized expertise for crimes of femicide, sexual violence, exploitation and trafficking of people.

Follow up Questions and Comments by the Committee Experts

CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur for the Report of Guatemala, referred to crimes to which the statute of limitation did not apply and asked about cases in which amnesty was granted and how they were aligned to the rulings of the Inter-American Court of Justice and the responsibilities of the Guatemalan State under the Convention against Torture.  Referring to the report by the High Commissioner for Human Rights on Guatemala, the Chairperson voiced concern about the application of the Amnesty Law in the country, the situation of human rights defenders and the trend of discrediting human rights organizations operating on the ground. 
 
NORA SVEAASS, Committee Expert and Rapporteur for the Report of Guatemala, asked about the status of the death penalty in the country and about the patients of the Frederico Mora hospital, including children, who reportedly suffered sexual abuse.  The Country Rapporteur also asked about systems of oversight and monitoring in places of juvenile detention; whether families of exhumed persons were assisted with costs of funerals; the treatment available directly for people affected by the armed conflict in addition to the support provided to communities; and the place of the internal armed conflict in the school curriculum and what children were being taught about the past. 

Other Experts asked the delegation to provide further information on the status of entry into force of the national preventive mechanism and about measures to re-establish the control of prison facilities currently held by prison gangs.  There was an overarching notion in international human rights law that there were crimes for which there could be no amnesty.  Guatemala was providing amnesty for crimes other than genocide and torture; did the amnesty also include acts of genocide and if so, how was the responsibility of the military officers being ensured?  What protocol was in place to provide for investigations and prosecutions in cases of femicide?  Gender-based violence was on the increase and impunity for those crimes and for the exploitation of children was endemic. 

Responses by the Delegation
   
The conflict which had led to enforced disappearances in Guatemala had begun in the 1960s, with the beginning of the guerrilla war to reject the Government and take over the power; it was important to say that the armed conflict in the country did not originate as an inter-ethnic conflict.  The Government did not deny the responsibility to provide redress to victims, but discussions turned around whether genocide took place in the country and how it impacted the amnesty.  The amnesty was a result of a negotiated peace agreement mediated by the United Nations, and words such as enforced disappearances, genocide or torture were not part of the peace accord.  Genocide and torture had been defined as exceptions to the amnesty by the Guatemalan State itself. 

The death penalty existed and could only be used in exceptional cases and never against women and children; even though the moratorium had been in place for a long time, the abolition of the death penalty had not yet been approved by Congress.

Security in prisons had been beefed up and the powers of the law had been used to identify members of prison gangs and to break them up; at the same time, prison guards were being trained to respond to prison violence.  There were 41,000 registered private security guards and approximately 7,000 non-registered ones, and a commission had been set up to monitor private military and security companies.  There were seven shelters for women victims of violence that were fully up and running and offered comprehensive services around the clock. 

Closing Remarks

CLAUDIO GROSSMAN, Committee Chairperson and Rapporteur on Guatemala, thanked the State of Guatemala for their efforts in providing information and answering the questions asked by the Committee.  The issues discussed were in the interest of the collective knowledge of the Committee. 

ANTONIO ARENALES FORNO, Secretary for Peace and President of the Presidential Commission for the Coordination of Political and Executive Power in Human Rights, said that Guatemala had done its utmost to provide the Committee with all the relevant information and had drafted a new version of the report which contained additions and necessary information; hopefully, this new version would address the concerns expressed by the Committee Experts.
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