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UN WORKING GROUP ON DISAPPEARANCES CONCLUDES VISIT TO GUATEMALA




Guatemala City, 25 September 2006 -- The following is the text of the statement to the press issued by the Working Group on Enforced or Involuntary Disappearances of the Council on Human Rights. The text was presented by Santiago Corcuera, Chairperson – Rapporteur of the Working Group, and Darko Göttlicher, Expert-member of the panel, after their mission to Guatemala between 19 to 21 September.

“This is the second mission of the Working Group to Guatemala. The first was carried out in 1987. Since then, many changes have happened in the country and the Working Group was very interested in analyzing those changes in light of its mandate.

“Since its establishment, the Working Group has received 3,152 cases of forced disappearances in Guatemala which occurred between 1979 and 1986. The Working Group still has 2,896 cases pending clarification with respect to the whereabouts or the fate of the victims of these cases. This demonstrates of course, a considerable under-reporting of cases of enforced disappearances of persons in Guatemala submitted to the Working Group, in view of the fact that the 1999 report in Guatemala of the Commission for the Historic Clarification estimated that there might have been approximately 45,000 victims of enforced disappearances. It is important to point out that, since 1996 and until the end of 2005, the Working Group only received one new case, which shows the progress achieved from the accord for a firm and durable peace of 1996, which formally concluded the internal armed conflict. During this mission, the Working Group received five new reports of cases of enforced disappearances which reportedly occurred in recent years. The Working Group will analyze these cases in accordance with its methods of work to check whether they comply with admissibility requirements and, if so, transmit them to the State of Guatemala.

“First of all, the members of the Working Group that have participated in this mission wish to express our deep gratitude for the great support given by the Guatemalan Government to ensure the success of this mission. It should be mentioned that the Working Group intended to include this mission to Guatemala in a regional visit to Central America at the beginning of 2007 to countries with large numbers of long outstanding cases. However, due to the invitation and suggestion of the Government of Guatemala, the Working Group decided to conduct this mission to Guatemala, in order to support current processes aimed at the clarification of cases which are being put forward by the present administration.

“The Working Group held meetings with high officials of the State of Guatemala, including the Vice-president of the Republic, the President of the Supreme Court of Justice, the President of the Constitutional Court, the General Attorney of the Nation, the President of the Presidential Commission on Human Rights (COPREDEH), who at the same time is the President of the Commission of the executive branch for the search of persons disappeared during the internal armed conflict, the Vice Minister of Foreign Affairs, the Procurator for Human Rights, the President of the Commission of Human Rights of the Congress of the Republic, the Director of the Institute for Criminal Public Defense and the Director of the National Reparations Program. The Working Group welcomes and is grateful for the warm and open atmosphere during these meetings. The constructive attitude towards the implementation of legal mechanisms and public policies aimed at the clarification of cases of enforced disappearances that occurred during the internal armed conflict which lasted more than 35 years, as well as to put in practice policies to respect human rights in general was recognized and appreciated. Furthermore, we met with representatives of the International Committee of the Red Cross in Guatemala and representatives of civil society including from non-governmental organizations of families of victims of enforced disappearances, with whom we had open and objective discussions. The Working Group considers indispensable to a balanced mission, to have meetings with representatives of the government and civil society, particularly those made up of members of the families of the disappeared.

“The Working Group observed with satisfaction that the constitution contains a complete catalog of human rights, stipulates the establishment of a commission on human rights of the Congress and the institution of the procurator of human rights as a commissioner of Congress which secures its autonomy by the highest ranking legal instrument in the legal system of Guatemala. The fact that the constitution establishes “the general principle that international treaties and conventions on human rights accepted and ratified by Guatemala have preeminence over domestic law” places the Guatemalan fundamental law in a leading position in this area. Furthermore, the criminal code provides that the act of enforced disappearance is a separate crime, in accordance with international law standards. Furthermore Guatemala is a party to the Inter-American Convention on Enforced Disappearance. Notwithstanding the above very important legal factors, the Working Group expressed its concern at the limited progress in the implementation and practical application of such laws (i.e. there are very few, if at all, cases in which persons who perpetrated enforced disappearances have been detained, prosecuted and punished for the crime of enforced disappearance. The Working Group wishes to reiterate that the crime of enforced disappearance is of a continuous nature. That is, persons responsible for this crime can and must be subject to legal proceedings and sanctions even if the law creating the crime was adopted after the initial act causing the disappearance, if after the enactment of the law the whereabouts or fate of the victim is still unknown.

“As a result of the above, the Working Group sees as a positive sign that, in the absence of an agreement in the Congress, a presidential decree was issued to create a Commission for the Search of the Disappeared and that a parallel preparatory commission is in place to work on the establishment of an equivalent body through an act of legislation. The latter would establish a stronger institutional autonomy, both budgetarily and legally, and would more strongly secure its stability. This preparatory commission works in an integrated way with representation from the Government, the Procurator for Human Rights and civil society. The Working Group respectfully calls on the different parliamentary factions of congress to continue efforts to achieve consensus in order to enact the necessary legislation. In the meantime, the Working Group hopes that the establishment of the search commission of the executive branch will render the best results within its power to clarify the fate or whereabouts of disappeared persons that are before the Working Group, as well as any others. In addition, the Working Group calls on all those involved (executive branch, procurator of human rights and civil society) to keep channels of frank and transparent communication open to ensure constructive co-participation in a common goal, which should be no other than finding victims of enforced disappearances or their fate and the integral reparation to them and their loved ones. In accordance with international law, and specifically with the Declaration on the Protection of Persons against Enforced Disappearances (hereinafter referred to as the “Declaration”), the State has the primary responsibility to comply with international obligations. However, the Working Group considers it essential to recognize and emphasize that civil society also has a responsibility to address the resolution of enforced disappearances, including providing information to the Working Group to clarify cases that are still pending.

“In connection with the search of disappeared persons, the Working Group wishes to commend the establishment, work and results of the national Commission for the Search for Disappeared Children, established by the International Research Center on Human Rights, the Office of Human Rights of the Archbishop of Guatemala, the association Where are the children?, the association Casa Alianza, the Mutual Support Group, the Rigoberta Memchu Tum and the Procurator on human rights. We were informed of the achievements of this organization such as 1,280 documented cases, 324 clarified cases, 131 family reunions, 108 exhumations, 1,000 persons receiving some kind of psycho-social treatment, 600 persons receiving permanent psycho-social treatment. The Working Group wishes that similar results could be achieved with respect to the pending cases before the Group, as well as any others.

“The Declaration, for which the Working Group has a mandate to monitor, refers to the fundamental right of integral reparation. This includes the right to truth, to justice, to moral reparation and psycho-social rehabilitation, as well as to appropriate monetary compensation. Notwithstanding that these principles are contemplated in the basic documents of the national reparations program and the draft national plan for the search of disappeared persons, it should be expressed that those principles should be applied in practice in a complete manner, and not be restricted to the delivery of money, as some sources reported occurs in the majority of cases at the present time. This incomplete application of the right to reparation has apparently sometimes led to the disintegration of families of victims of disappearance.

“In connection with the above, the Declaration several times refers to the right to truth and information from the results of investigations. This is why it is of the utmost importance that archives and official documents, both from the police and the army, which may contain essential information for the investigation and potential clarification of disappearances committed during the internal armed conflict, be preserved and cared for scrupulously, preferably by a body granted with acting and budgetary autonomy, in order to guarantee that such preservation is not at stake as a result of political factors, such as changes of governments or similar circumstances. In this sense the Group welcomes the finding and safekeeping of the above mentioned archives related to the activities of the police during the internal armed conflict. In addition, it would be very positive if the Congress of the republic would issue a law on transparency and effective access to information to guarantee availability of such information to researchers and families of the disappeared, as well as the general public, except in cases where justified secrecy or confidentially is required.

“Pursuant to the Declaration, ( “[p]ersons who have or are alleged to have committed [enforced disapperences] shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction.”. The Working Group is aware of the fact that the peace accords and the corresponding implementing legislation, exclude the possibility of amnesties to persons having committed crimes against humanity, including enforced disappearances that occurred during the internal armed conflict. However, in accordance with the criteria of the Working Group, certain similar measures are contrary to the Declaration even if not contained in a law, if such situations in fact lead to impunity. That is to say, impunity could be understood as a “de facto amnesty”, contrary to the Declaration. The Working Group is greatly concerned by expressions of the majority of the persons interviewed, governmental and non-governmental, which refer to lack of resources, lack of sufficient investigators, judges and police agents without appropriate professional training and in some cases, lack of will of some actors, to investigate, capture, process and punish persons responsible for gross violations of human rights, including disappearances, which gives rise to an atmosphere of impunity which is unacceptable in the light of the Declaration. The Working Group is very concerned by reports referring to the fact that impunity leads to a situation where perpetrators of gross violations of human rights, including disappearances, committed during the armed conflict, live close to the victims of such violations, which leads to an atmosphere of fear and community distrust.

“Furthermore, the Working Group is very concerned by the reports received during the mission which refer to attacks, threats, acts of intimidation and reprisals, suffered by some persons who work in organizations of members of the families of the disappeared, including defense lawyers, petitioners, witnesses, and investigators of this phenomenon, such as personnel of the office of the procurator of human rights. These practices are unacceptable and are also contrary to the Declaration and therefore, they should be prevented and punished in accordance with the Declaration.

“The above mentioned topics and others derived from the fact finding during this mission, will be described in a detailed manner in the report that the Working Group will prepare following this mission to Guatemala. The report will also contain recommendations and observations that will be communicated to the Guatemalan Government.

“Finally, the Working Group wishes to express its sincere gratitude to all members of the Office of the United Nations High Commissioner for Human Rights for their support, without which this mission would not have been possible”.

Background on Working Group

The Working Group was created by the United Nations Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. The Working Group endeavors to establish a channel of communication between the families and the governments concerned, to ensure that individual cases are investigated with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. In view of the Working Group’s humanitarian mandate, clarification occurs when the fate or whereabouts of the disappeared person is clearly established. The Working Group continues to address cases of disappearances until they are resolved.

The Working Group is made up of five independent experts from all regions of the world. The Chairman-Rapporteur is Santiago Corcuera, and the other Expert-Members are J. Bayo Adekanye, Darko Gottlicher, Saied Rajaie Khorasani, and Stephen J. Toope.

For more information on the WGEID, please refer to: http://www.ohchr.org/english/issues/disappear/index.htm