European Parliament/DROI Mission to Guatemala, February 2016: Joint briefing by Civil Society Organisations

Some General figures about Guatemala

· Guatemala has one of theworld’s highest rates of violent deaths.Despite the decrease of killings in 2014 compared to 2013, the NationalInstitute of Forensic Sciences (INACIF) registered 5.924 violent deaths (16 perday), and the rates in Guatemala City increased 8,8%.[1]

· Since 2009, impunity has beendecreasing in cases of life threats. Nevertheless it is still very high incases of violence against Human Rights Defenders (HRDs). It is important tonote the role that the International Commission Against Impunity in Guatemala(CICIG) and its coordination with the General Attorney in the fight againstimpunity regarding different corruption cases in the last months that concernedseveral public institutions.

· Guatemala has one of the worstpoverty and inequality indicators America, with a Gini coefficient of 0,628. Halfof the children under 5 suffer from chronic malnutrition[2] and more than 3 million people suffer from hunger, with indigenouspeoples and peasants among the most affected. Despite the reduction ofmortality attributable to undernutrition, still in 2014 the rates were high,9.1 deaths per hundred thousand people[3].The imposition of an economic model aimed at the eviction of indigenousand peasant population from the countryside in order to implement agriculturaland extractive projects, mainly for export purposes, has devastating effects onthe rights of the affected populations, namely the right to adequate food, theright to free, prior and informed consultation and to access to land andnatural resources. The persecution of HRDs, especially those defendingeconomic, social, cultural and environmental rights, opposing those projects,is also of particular concern[4].

· CICIG's revelations aboutcorruption and impunity structures within the State contributed to create a newsituation of citizen participation and social protest since April 2015. In thisnew situation the leadership of students was remarkable as a newcomer on thepolitical scene. On the other hand, the indigenous movement managed to takethis new situation to position their historical demands on the democratizationof state institutions. Such rejection of corruption and openness to renew anddemocratize the institutions There seem to be positive conditions for civilsociety - women's organizations, indigenous peoples and youth - to strengthenmobilization and influence who are well positioned to take advantage of the.During these demonstrations the citizens made several claims, among which theresignation of the then President Otto Perez Molina, and the cancellation ofthe elections, which finally took place between September and October 2015.Otto Perez Molina finally resigned and is currently in prison waiting to be triedfor corruption. The new government will have to address these calls regardingchanges of the Electoral and Political Parties Law, the Civil Service Law, the Lawof State Contracts and the Constitution itself. Another request of the socialmovement was the organization of a Popular and Plurinational ConstituentAssembly (Asamblea Constituyente Popular y Plurinacional) with theparticipation of indigenous peoples and social movements, to discuss changes tothe Constitution.

Situation of Human Rights Defenders (HRDs)

· Despite thelegal, political and institutional framework, the work of HRDs has become arisky activity that involves defamation, criminalization and prosecution. Between2000 and 2014, 4.252 direct attacks against HRDs took place, 42% of them in thelast three years, especially in the context of extractive and monocultureprojects.[5] Between January and June 2015, 337 attacks againstdefenders were recorded, and in 2014 a total of 805 [6]. It should be noted that those who defend therights of indigenous peoples and environmental rights are particularlytargeted. Women HRDs represented 53% of the victims of the attacks perpetratedduring the first half of 2015. Despitesome progresses, a high level of impunity in cases of killings of HRDs remains. According to the CICIG there are stillsignificant deficiencies in the investigation and prosecution in cases ofattacks against HRDs.[7]

· For thosedefending the right to land, the situation is very critical and is worsened bystructural issues generating conflict in the country, such as the failure inimplementing the agrarian reform recognized as necessary by the Peace Accords,the re-militarization and lack of management of social conflict throughcriminalizing measures such as the "Ley de Túmulos", as well as structuraldiscrimination against indigenous peoples, inequality and poverty and thesystematic violation of the right to consultation, which is considered by the GuatemalanConstitutional Court as non-binding. In particular, communities that have takenaction in defense of human rights, such as Santa Cruz Barillas, La Puya or SanRafael de las Flores and Mataquescuintla, have been subjected to repressivepolicies and mechanisms like unjustified and violent evictions or the excessiveuse of the state of siege[8].

· Thecriminalization of social protest is a widespread phenomenon perpetrated bystate and non-state actors, involving the use of the legal system in order todelegitimize, repress and weaken the human rights movement. An example of such criminalizationis the frequent trumped-up accusations without any evidence against defendersfor crimes they did not commit. The economic social and cultural (ESC) rightsdefenders are particularly targeted due to their firm opposition to large-scaleeconomic projects. While the social and political situation of 2015 and the"democratic spring" showed that the state does allow social protest,it also showed that it is possible only in certain cases: the reaction of the stateis very different and stronger when the protests and demonstrations are againstbig economic projects of national interest.

· In reactionto the obstacles that the defense of human rights represent for the interestsof corporate sectors, national slandering campaigns against defenders have beenput in place, questioning their work without any funded reason.

· Guatemalahas several national mechanisms to carryout actions of acknowledgement and protection of human rights defenders andtheir work: the Human Rights Ombudsman (LaProcuraduría de DDHH, PDH); the Support Institute for the Analysis ofAttacks against Human Rights Defenders (laInstancia de Análisis de Ataques contra Defensores de Derechos Humanos),the Presidential Human Rights Commission (LaComisión Presidencial Coordinadora de la Política del Ejecutivo en materia deDerechos Humanos, COPREDEH); theHuman Rights Unit within the Sepecialist Division for Criminal Investigations (la Unidad de Derechos Humanos de la DivisiónEspecializada de Investigaciones Criminales, DEIC); the Protection Program forJournalists in Guatemala (el Plan/Programade Protección del Periodista en Guatemala), etc. Nevertheless, none ofthese mechanisms proved to be effective enough, as the worrying data onaggressions against HRDs dranatically show. In 2014, the Inter-American Courtof Human Rights (IACtHR), in its rulingon the case of Human Rights Defender and Others v. Guatemala, ordered the State ofGuatemala to implement a public policy to protect HRDs, to be elaborated incollaboration with those directly concerned by protection measures, ensuring acomprehensive and inter-institutional perspective as well as sufficientfinancial and human resources.

Accordingly, we recommend you urgethe authorities of Guatemala to:

- Effectively implement the rulingof the IACtHR in the case Human RightsDefender and others v. Guatemala, by putting into place a public policy toprotect human rights defenders and creating effective protection mechanismsthat can guarantee their physical and psychological integrity.

– Repeal the “Ley de Túmulos”which could be used to prohibit the legitimate right to peaceful assembly anddemonstration.

- Respect the due process andguarantee the principles of legality and proportionality in the application of CriminalLaw, particularly in cases against human rights defenders.

Women’s rights

· In 2014, 774 violent deaths ofwomen were reported. In the same year, 1400 convictions for femicide were registered,compared to the 779 happened in 2013, and courts specialized on femicide werecreated in 11 departments. Nevertheless, not all women in Guatemala have accessto these specialized courts, particularly women living in remote rural areas. Moreover,there are still shortcomings in addressing violence against women in theordinary courts, since a gender perspective is often not included ininvestigations and discriminatory stereotypes largely predominate. These shortcomingsseriously affect women's legal certaintyas well as their right to effective judicial protection.[9]

Accordingly, we recommend you urge the authorities of Guatemala to:

- Guarantee to all women access to courts, especiallyto those specialized in violence against women and femicide.

- Guarantee that judicial and investigativeauthorities include a gender perspective when investigating and prosecuting forcrimes of violence against women and femicide.

Indigenous peoples' rights

· The protection of indigenouspeoples, their territories and the respect of their traditions are recognizedby the Guatemalan Constitution.[10]Nevertheless, these provisions are not respected. The promotion of adevelopment model based on the exploitation of natural resources throughextractive megaprojects such as mining, hydroelectric or monoculture plantation,for the benefit of the domestic and foreign business sector is contrary to thevision of development of indigenous communities, peasants and other ruralpopulations. This development model causes grabbing of natural resources in adensely populated country, limiting the access and control on them of the communities,with consequent impacts on human rights and conflict escalation. Moreover, inmost cases the state systematically failsto fulfil its duty to carry out a prior, free and informed consultation withthe communities affected by megaprojects, as enshrined in the ILO ConventionNo. 169, the UN Declaration the Rights of Indigenous Peoples and the article 63of Decree 12-2002 of the Municipal Code.

· It is worth mentioning that inmany cases European investment companies are involved in violations committedagainst indigenous peoples and human rights defenders, especially in thecontext of mega-projects, for instance the Spanish company Hidralia Santa CruzBarillas / Huehuetenango.

Accordingly, we recommend you urge the authorities of Guatemala to:

- Respect indigenous peoples’ rights, particularly theright to a prior, free and informed consultation as enshrined in the ILOConvention N 169, ratified by the State of Guatemala.

- Adopt legislative and other measures to guaranteeand strengthen the mechanisms in placefor monitoring the activities of transnational enterprises in the followingways: ensuring that those companies with registered domicile in the Guatemalan territoryor under its jurisdiction are obliged to monitor and study the human rights impactof their investment projects; regularly monitoring compliance with their duediligence relating to human rights through regular meaningful participation of localpopulation and affected communities, including land rights defenders.

- Adopt national policies that allow fair access toland, that guarantee land tenure, and that respect the protection of unwritten, traditionaland customary land rights, without forced evictions. To achieve this, it wouldbe necessary to carry out the agrarian reforms foreseen in the Peace Agreements.Moreover, review the definition of the crime of usurpation in the Penal Code,and deal the majority of cases of possession within civil justice system, toavoid criminalization of rural communities.

Right to Food[11]

· Despite the existence of differentplans, programmes and policies addressing hunger, the right to food of morethan 3 million people in Guatemala is infringed. Children, women, indigenousand populations living in rural areas are the most affected. The lack ofinstitutional coordination and focus on structural problems are the main obstaclesto the eradication of hunger andmalnutrition. An example of this serious situation is the case of Camotán. BetweenApril and May 2013, a judge of the Department of Zacapa condemned the State ofGuatemala for the violation of the right to food, the right to life, health,education and housing of three boys and two girls. In the aforementioned rulings,he ordered the state institutions to carry out a series of measures of redress.However, these measureshave not been implemented yet.[12]

· Rural and indigenous populationslack access to and control on natural resources. The expansion of industrialmonocultures, like palm oil or sugar cane, and other extractive projects forcedthe eviction of small-scale farming, causing rural and indigenous populations tobe deprived of the access to their land and livelihoods. Additionally, waterand land pollution generated by these projects have a negative impact on the health,life and food sovereignty of those communities.

Accordingly, we recommend you to urge the authorities in Guatemala to:

- Promote policies and mechanisms of access to landand control of natural resources, in order to guarantee food sovereignty,respecting the specific characteristics of rural communities and integrating agender perspective able to increase the equality and sustainability of suchpolicies.

- Recognize and treat hunger and malnutrition as aproblem of national interest, addressing the historical and structural problemsthat generate it through a human rights-based approach.

- Guarantee a better coordination and strengthening ofthe different government offices responsible for implementing policies andprogrammes to eradicate hunger and malnutrition.

- Guarantee the correct and full implementation of therulings recognizing the State's responsibility for the violation of the rightto food of five children in Camotán.

Independence of Justice

· In 2014 the nominatingcommittees (Comisiones de Postulación)carried out the selection process toappoint the highest judicial authorities. In this process we witnessed theabsence of objective and transparent criteria for assessing the merits, skills,expertise and reputation of the candidates. The recommendations made by the UNHigh Commissioner for Human Rights, the Special Rapporteur on the independenceof judges and lawyers and the Inter-American Commission of Human Rights toprevent such situation were not taken into consideration, nor were the Guidelinesissued by the Constitutional Court, in line with international standards. Aseries of attacks and threats against judges and prosecutors who were involvedin high-impact cases took place, as well as several slandering campaigns onsocial media discrediting their work.

Accordingly, we recommend you urge the authorities of Guatemalato:

- Conduct an integral review of the legal andconstitutional framework in order to guarantee the independence of justice, inline with international standards.

- Guarantee that judges, prosecutors and judicialofficers are allowed to freely carry out their duties, particularly thosedealing with cases of human rights violations.

Transitional Justice

· Since the conviction of theformer general and former head of state Efrain Rios Montt for genocide andcrimes against humanity and its subsequent cancellation in 2013, the re-openingof the trial for genocide has been constantly postponed, always under thethreat of possible amnesties. The advanced age of Mr. Rios Montt and hisdeteriorating health may contribute to fact that the new trial never takesplace, leaving the crimes he committed in total impunity.

· On February 1, 2016 the ground-breakingtrial in the Sepur Zarco case is due to start. It is a case concerning sexualviolence, domestic servitude and sexual slavery committed against a group ofMayan women Q'eqchí of the SepurZarco community (located at the boundary between Alta Verapaz and Izabal) in1982 during the internal armed conflict. This case is emblematic since it considerssexual violence as a weapon of restraint in armed conflict.

· On January 6, 2016, the Guatemalanauthorities arrested 18 senior military officers, accused of crimes againsthumanity and enforced disappearances. Among them retired generals Romeo LucasGarcia and Manuel Antonio Callejas y Callejas, known to have held positions ofresponsibility during the armed conflict and to be involved in variouscorruption cases. The alleged crimes were committed as part of the militaryoperations conducted in Cobán, between 1981 and 1988, and some of those acts playeda role in the Maya Achi genocide. Civil society organizations welcomed thesearrests and recognized the efforts done by justice officers, namely the Public Prosecutorand the Attorney General. Similarly, we urge the judicial authorities toconduct the process respecting impartiality and judicial independence, ensuringthe due process and safety of all parties taking part in it.

Accordingly, we recommend you urge the authorities ofGuatemala to:

- Strengthen the courts and tribunals investigatingand prosecuting cases of human rights violations and ensure that theperpetrators of those crimes will be brought to justice, as a way to preventimpunity. Furthermore, guarantee that the national legislation is interpretedin line with the principle of inadmissibility of amnesties in cases of grave humanrights violations, according to international law.

- Guarantee the independence of the judiciary and therespect of the principles of due process and rule of law.

- Establish measures to ensure the physical andpsychological integrity of the surviving victims, their families, communitiesand groups supporting them, as well as of the judicial officers, prosecutorsand complainants, in order to prevent defendants from using their influence onthe authorities to seek impunity.

Torture andprison conditions [13]

· Despite the creation of aNational Mechanism for Prevention of Torture (MNPT), the lack of appropriateand sufficient allocation of financial resources within the national budget entailsa serious lack of operational effectiveness. Furthermore, there is no nationalregistry of victims of torture in place.

· Despite the ruling of the ConstitutionalCourt[14]calling for adapting the definition of torture in nationallegislation to be in line with regional and international standards, there is anexcessive delay in the submission of the Bill before the Parliament. Suchconcern has also been expressed by the United Nations Committee Against Torture(UN CAT) in its last Concluding Observations[15].

· Prison conditions are a major concern,since they often amount to cruel, inhumane and degrading treatment. The highdegree of overcrowding in centers of detention is due, among other factors, tothe absence of adequate measures for a fair treatment of prisoners, as well as tothe insufficient use of alternative punitive measures, associated with the abuseof pretrial detention as the main form punishment. This is contrary to the international standards, suchas the Tokyo Rules, stating that preventive imprisonment should be the lastresort in order to respect the rights of people subjected to any kind ofdetention. In addition, there are insufficient appropriate measures, also froma financial perspective, to create and adequately monitor separate centers of deprivationof liberty for women, juveniles, and for the protection and treatment of detaineeswith mental illnesses.

Accordingly,we recommend you urge the authorities of Guatemala to:

- Strengthenfinancial resources in order to effectively make the National Mechanism forPrevention of Torture operational and create a registry of victims of torturein the country.

- Present assoon as possible a Bill to adequately categorize the crime of tortureaccording to international and regional standards, as stated in the ruling ofthe Constitutional Court and as recommended by the UN CAT.

- Establishadequate measures and allocate both human and financial resources in order toguarantee a fair treatment of the detainees, including the creation ofadequate centers of deprivation of liberty for women, juveniles and detaineeswith mental illnesses. Additionally, use more punitive measures that are alternativeto imprisonment, and do not abuse of preventive detention as the main mean ofpunishment, as required by international standards, including the Tokyo Rules.

[1] OHCHR in Guatemala, Reportof Activities in Guatemala for 2014.

[2] UNICEF, 2010.

[3] National Institute of Statistics, Indicators.

[4] Report of the ThirdInternational Fact-finding Mission on the Right to Food and the Situation ofhuman rights defenders in Guatemala, 2015.

[5] Ibid.

[6] Annual Report El Acompañante, UDEFEGUA 2015 and Six-monthsreport, January-June, UDEFEGUA 2015.

[7] OHCHR in Guatemala (note 1).

[8] Observatory for the Protection of Human Rights Defenders (OMCT-FIDH), “Smallerthan David. The struggle ofHuman Rights Defenders in Guatemala", together with thedocumentary available here: https://www.youtube.com/watch?v=SXr0Ml0freo. See also the 2014 AnnualReport of the Observatory “We are not afraid". Land rightsdefenders: attacked for confronting unbridled development".

[9] OHCHR in Guatemala (note 1).

[10] Articles 66-70 of the GuatemalanConstitution.

[11] Between November and December 2014, the International organizationsAct Alliance EU, CIDSE, CIFCA, FIAN, REL-UITA and La Via Campesina carried outthe third International fact finding mission on the right to food and situationof human rights defenders. You can find here the reportof the mission and its executivesummary.

[12] For more information, see the report of the International Fact-findingMission (note 11) and the reportof FIAN on the monitoring of the rulings' implementation.

[13] See the JointPress Release of OMCT and UDEFEGUA.

[14] File 1822-2011, ruling of 17 of July 2012.

[15] See ConcludingObservations of the UN CAT (6-31 of May 2013).