RIGHT TO JUSTICE AND DUE PROCESS1
A. General Considerations
1. In its first report, the Commission pointed out in discussing justice and due process in the 1965 Guatemalan Constitution, which was in effect up to the time of the military revolt that brought to power the government of Efrain Ríos Montt, that the Constitution recognized the equality of all human beings in dignity and rights; laid down the principle of non-retroactivity of the law, except for criminal cases in which it would be favorable to the accused; provided that in a criminal case no one may be compelled to testify against himself, his spouse or relatives to the fourth degree of consanguinity or the second degree of affinity; recognized the inviolability of the defense of one’s person and one’s rights; stipulated that no person may be tried by a commission or by Special Courts; conferred on the people of the Republic the right to address petitions individually or collectively, to the authorities; and established different procedures for political and other petitions addressed to government officials; and, among many other provisions, provided that the armed forces may neither debate nor exercise the right of petition.
2. Regarding the administration of justice, particularly the protection and defense of basic human rights, the Constitution stipulated that, in practice, regardless of any provisions of the juridical system, neither the judicial branch nor the rights proclaimed in the Constitution and in the laws, could operate or be applied in such manner as to result in an attitude of discredit and lack of confidence in the actions of the judicial branch.
3. In addition to the foregoing, mention must also be made of the climate of arbitrariness and repression that existed to the prejudice of administration of justice and the application of due process; murders of judges and lawyers; the lack of investigation and punishment for such crimes; and the ineffectiveness of the legal remedies available in the legal system.
4. Because of this, when the regime of General Rome Lucas García was overthrown, the first declaration of General Efrain Ríos Montt produced satisfaction and encouragement in that the objective of this revolutionary movement was to “revitalize institutions and restore the value that had been lost.” Referring specifically to the judicial system, he said that its autonomy would be restored, and told newsmen, “I will only say to you that now there will be no judge who will receive a million quetzals for rendering justice.”
B. Organization of the Administration of Justice
1. The public statements made on the day the revolution triumphed and the army proclamation to the people of Guatemala on the same day of March 23, 1982, and the Fundamental Statute of Government enacted on April 27, 1982, endorsed these same principles, by stating that: the regime that had been installed “will endeavor in the exercise of public power to make the government administration act effectively and honestly and will see to it that justice is done promptly.”2
2. When the 1965 Constitution was repealed, the new provisions on the organization and functions of the judicial system were set forth and described in Chapter XII, Articles 74 to 88, of the Government Statutes, and the provisions governing the structure and powers of the Office of the District Attorney were laid down in Chapter XVI, Articles 104 to 108. Article 11 deals with the remedy of Amparo, and subparagraphs 18 and 19 of Article 23 deal with the remedies of petition and bringing the accused before a judge or habeas corpus, respectively.
3. With regard to justice and the organization of the functions of the judicial branch and of the District Attorney, the Fundamental Statute of Government establishes in general terms, inter alia, that justice shall be administered in accordance with the Fundamental Statute of Government and the laws of the nation, based on the self-evident principles for providing justice, juridical security and the common welfare. Justice should be prompt and effective, and the laws should be in accord with these principles.3
4. According to the Fundamental Statute, the judicial function is exercised with complete independence by the Supreme Court of Justice and other regular and Special Courts.4 Administration of justice is compulsory, free of charge and separate from other government functions. It shall be public unless public decency, State security or the national interest require private proceedings.5
5. Magistrates and judges must be native Guatemalans of recognized standing and capacity and be entitled to the rights of citizens. Magistrates and judges must be members of the Bar Association, except where the law establishes certain courts with special jurisdiction and lower courts.6 The Fundamental Statute also provides that holding leadership positions with political parties or labor unions and serving as ministers of any religion are incompatible with the exercise of judicial functions. Mayors of municipalities shall preside over lower courts in such cases and in such manner as provided for by the law.7
6. No trial may consist of more than two stages, and the magistrate or judge exercising jurisdiction in one may not hear the other, including appeals, for the same case, without incurring liability for so doing. The President of the Republic appoints the president of the judicial branch and of the Supreme Court and the justices of that and other collegial courts. The Supreme Court shall in general appoint noncollegial court judges and other collegial courts. The Supreme Court shall in general appoint employees of their judicial agencies, and each collegial court shall appoint its own staff.8
7. The Supreme Court shall be composed of at least nine justices, and it may be organized into sections when the administration of justice so requires. The President of the judicial branch is also President of the Supreme Court. Justices of the Supreme Court must be over 40 years of age, native Guatemalans, enjoy the rights of citizens, be of recognized capability and honesty, have served at least one complete four-year term as judge on a court of appeals, administrative court, or audit court of appeal, or have exercised the profession of lawyers over the years, and must not be members of the clergy.9
8. Judges of appeals courts, administrative courts, audit courts of appeal and courts arbitrating conflicts of jurisdiction must be over 35 years of age, not members of the clergy, native Guatemalans of recognized capacity and good repute, enjoy the rights of citizens, have been a trial judge for at least five years, or have exercised the profession of lawyers for five years. The Supreme Court shall distribute posts in the manner most suitable for administration of justice.10
9. The court of appeals consists of the number of sections determined by the Supreme Court. The administrative court has jurisdiction over cases of conflicts originating in acts or decisions of the government administration, the municipalities or of the autonomous and semi-autonomous decentralized agencies in the exercise of their authorities, and in cases of actions resulting from contracts and administrative concessions. Appeals may be filed to set aside final sentences and decisions that end the proceedings.11
10. Judicial audit functions are performed by the judges of the audit courts of appeal. Appeals may be filed to set aside final sentences and decisions.12 The court for arbitration of conflicts of jurisdiction resolves disputes between the administrative court and the government administration; conflicts arising between the administrative court and the regular or Special Courts; and conflicts arising between the government administration and regular or Special Courts. The courts for arbitration of administrative conflicts are composed of three regular and three alternate magistrates, who must meet the same prerequisites as the judges of the appeals court.13
11. Military courts shall hear cases of crimes and offenses committed by members of the armed forces. Their organization, composition and functions are governed both by military and by regular law.14
12. In addition, the Fundamental Statute establishes provisions for the judicial career in Guatemala, pursuant to Article 88, which provides that the law shall cover income, censuses, transfers, guarantees for judges, etc.15
13. The Fundamental Statute provides that the District Attorney is the auxiliary institution of government administration and of the courts of justice. Its main purpose is to ensure strict compliance with the laws of the country and to represent the State.16 The functions of public prosecutor are performed by the Attorney General of the nation, who is appointed and removed by the President of the Republic.17
The duties of the District Attorney are to: a) ensure faithful compliance with the laws of the country and execution of judicial or administrative sentences and decisions in those cases indicated by the law when State interests are affected; b) represent the State and defend its rights and interests, judicially or extra judicially; c) intervene on its own initiative or when instructed by the Military Government Junta, pursuant to instructions from the Junta, in matters that are of interest to the State, by formalizing acts and signing contracts where necessary for that purpose; d) take the necessary steps for prompt and honest administration of justice and investigation of crimes and violations that disturb the public or social order; e) assist the courts and the government administration in enforcing the law and provide any juridical advisory functions indicated by the law; f) represent and defend absent persons, minors, and incompetent persons who lack legal representation and such other persons as the law may determine; and g) such other duties as the law indicates.18 The functions of public prosecutor are performed directly by the Attorney General of the Republic or his assistants.19
14. The temporary regime established by the Fundamental Statute of Government for the judicial branch, far from improving the conditions that prevailed under the repealed Constitution of 1965, converted the judicial branch into an even more dependent, subordinated and submissive entity.
The presidents of the judicial branch and of the Supreme Court and the magistrates of the Supreme Court, the Court of Appeals, the Administrative Courts, the Audit Courts of Appeal, and the courts for the arbitration of conflicts of jurisdiction, which under the repealed Constitution were appointed by the Congress of the Republic, were appointed, under the Government Statutes, by President Efrain Ríos Montt, who made such appointments with an obvious political bias, since, according to reports received by the Commission, magistrates were selected and elected during this fiscal year in accordance with the personal preferences or sympathies of the chief of the revolution and his military advisory team.
15. This situation, which affects the independence of the judicial branch from its very origin, is exacerbated and also damages the impartiality of its members by the lack of stability and guarantees they encounter in the performance of their duties, because they can be removed without duly justified cause by the same person who appointed them, currently, the Chief of State. In fact, Article 26, which provides for the mechanism of appointing magistrates of the judicial branch establishes for such appointments that “the principle that whoever appoints may remove is observed,” but it does not specify what causes might determine such removals.
16. The repealed 1965 Constitution at least gave the members of the judicial branch more stability and permanence by providing that: “Magistrates may be removed only in cases of crime, notorious misconduct or obvious incapacity, and removal must be decided by a two thirds-vote of the Congress of the Republic after the magistrate concerned has been granted a hearing.”20
The foregoing makes clear that the juridical system governing the temporary judiciary created by the present government of Guatemala under Decree Law 24-82, the Fundamental Statute of Government does not provide the judicial guarantees required by Article 8 of the American Convention with respect to the independence and impartiality of judges.
C. Special Courts
1. As stated in the first chapter,21 of July 1, 1982, the Government of General Efran Ríos Montt enacted a package of laws, including Decree Law 46-82, which established the Special Courts.
2. Under the Constitution of the Republic of Guatemala repealed by the Fundamental Statute, Special Courts are prohibited jurisdictional agencies, with regard to which the Guatemalan Constitution states as follows in Article 53, under the chapter of individual guarantees:
Defense of one’s person and of one’s rights is inviolable, and no one may be tried by a commission or by Special Courts. No one may be sentenced without having been charged, heard, and convicted in a legal trial held before competent and previously established courts or authorities, at which the essential formalities and guarantees have been observed; likewise, no one may be temporarily deprived of his rights except by virtue or proceedings that meet the same requirements.
3. The text of Decree Law 24-82 does not provide for the establishment of Special Courts for trying any person. Article 85 originally gave the Military Government Junta—and later the President of the Republic under Decree Law 36-82, which amended the Statutes—the authority to issue laws relating to Special Courts to judge specific crimes, but that does not mean that this provision could be interpreted as preparing the way for establishing Special Courts of justice that could violate the spirit and letter of the Fundamental Statute itself, which establishes in the chapter on justice and how it is administered and that it is based on the principles of a fair trial, juridical security and the common welfare.
4. Moreover, Article 85 does not express the intent to authorize the establishment of courts whose organization and operation are contrary to the basic principles set forth repeatedly in favor of protection and defense of human rights. On the contrary, according to Article 5 of the Fundamental Statute the installed government would establish all of the mechanism necessary for effective and absolute respect for and maintenance of human rights, so that all of those measures would make possible and promote the attainment of the goals proposed by the Government.
5. The third clause of the preamble of the Decree Law that established the Special Courts did not give any inkling that the operative part of the Decree might be an attack against the principles guaranteeing the administration of justice, due process and the other guarantees contained in the Government Statute, since that clause states:
That to protect order, peace and public security, a law must be enacted ensuring speedy and exemplary administration of justice in trying crimes against these values.
6. The Commission will discuss below the main aspects of the organization, operation and duties of the Special Courts.
7. The Special Courts were governed by Decree Laws 46-82, 111 and in addition, insofar as they do not violate such provisions, by the Law of the Judicial Branch and the Code of Criminal Procedure.
In addition to being governed by the legal provisions mentioned, all of which were made public, the Special Courts adjusted their activities, performance and functions to secret military rules, regulations and orders. Consequently, no one knew or could learn who sat on these courts, how many they were, where they operated, when they met, and whether the whereabouts of their records would someday be made known.
8. Although the secret nature of their activities had no official justification, the explanation was given that the purpose of such secrecy was to defend the personal security of the civilian officials and personnel on the courts in order to protect them from reprisals and other acts of vengeance, both against themselves and their families.
9. These courts made up a three member trial court: a president and two members; and a five member appeals court; a president and four members, who may or may not have been active members of the bar or officers of the Guatemalan army. They were appointed directly by the President, who could also remove them at any time, without giving a cause or reason. The members of these courts had the power to try cases, to rule on them and to impose sentences under the decree laws indicated. They acted ex officio at the request of the party concerned or the District Attorney.
10. The Special Courts had jurisdiction throughout the territory of the Republic of Guatemala and also, under Article 5 of Decree Law 46-82, had the authority to try cases brought for crimes committed outside Guatemalan territory.
11. As regards the accused, the Special Courts had jurisdiction when crimes attributed to him were acts or omissions that tended to subvert or destroy the juridical, political, social and economic organization of the country. As regards subjects, the jurisdiction of the Special Courts was determined by violations or by charging the accused with any of the following crimes:
I) Crimes covered by Titles VII, XI and XII of the Second Book of the Penal Code;
II) Political crimes violating other laws, in all cases not covered by the Penal Code; and
III) Common crimes connected with the crimes mentioned in the preceding two subparagraphs.22
12. Persons responsible for the crimes indicated in the preceding paragraph or crimes covered by Article 3 of the Special Courts Act, which was transcribed above, were subject to double the penalty provided for in the law concerned.
In addition, as pointed out in other chapters,23 the law establishing the Special Courts provided the death penalty for persons responsible for a number of crimes established in the Criminal Code.
13. As regards procedure, a trial by the Special Courts consisted of three stages: (i) the examining stage, which is the initial phase of the first instance, and is entirely in writing; (ii) the oral trial, which is the plenary and public phase of the first instance; and (iii) the appeal, which is the second instance.
14. The proceedings began by preparing the pretrial investigation: a set of investigations and statements compiled in a written file. The pretrial investigation originated in a document of denunciation. According to Decree Law 111, the statement taken from the accused should have been received within no more than eight days from the start of the proceedings before the Special Courts, which did not prevent the accused from having been detained, held incommunicado, interrogated, and in many cases tortured for a much longer period of time.24
15. Persons brought to trial before the Special Courts stated that when their statements were taken, during the interrogations, and when they signed their statements, before and during the pretrial investigation, they did not have counsel present, both because none was designated and because none was permitted.
16. Since the law did not provide that counsel be designated before a statement was taken from the accused, but stipulated instead “at the time the statement is taken,” that time may have been afterwards. In most cases, according to the testimony of the tried persons interrogated, the designation was made afterward. This was found to be the case by the Commission when it studied the records that ended with the first of the executions by firing squad in September of 1982. In fact, the Commission found that none of the pages containing the statements of the accused had any record of their having been assisted and accompanied by counsel. Instead, the appointment and the oath of acceptance of their counsel were in some cases recorded after the statement taken from the accused. Thus, the Commission had two sources of information for concluding that persons brought to trial were not provided with this essential requirement of due process: the testimony of a number of accused persons who were interviewed and the study of the court records.
17. Also noted in the statements taken from the accused were the constant self-incrimination. These are sometimes the only evidence on which the prosecutor based his charges and the courts handed down a death sentence against the accused.
On a number of occasions, the Commission head the argument from various officers of the Guatemalan army, defending and justifying the executions, that the persons sentenced had admitted their guilt themselves.
18. The Commission’s view regarding this issue is that suspension of subparagraph 11 of Article 23 of the Fundamental Statute of Government, whose text is given below, represented one of the deprivations of the guarantees of due process on the basis of which many innocent persons may have been executed:
In a criminal trial, no person may be compelled to testify against himself, his spouse or his family up to the fourth degree of consanguinity or the second degree of affinity.
19. In the Commission’s judgment, the inexcusable suspension of a guarantee that is the only one protecting a person from being compelled to testify against himself or his family is absolutely unjustified and implies express evidence of self-incrimination by the Government of Guatemala itself. With the suspension of such a guarantee, it could be inferred that people can be compelled with impunity to testify even against themselves and against their own family members.
20. The oral trial, which under Article 23 of Decree Law 46-82, began when the pretrial investigation was concluded, and when, under that law, sufficient grounds were found to warrant a trial, was initiated by the indictment handed down on the basis of the investigation. As the name indicated, it was oral and not written, and as the law states “it will be published.” The exception established by the law and not regulated by it was that the court may in unusual cases order a private hearing, when it regards such a step as necessary.
21. Publicity of the Special Court trials in the plenary stage, which should be the rule, was not even the exception. No such case occurred, and as indicated previously, the Special Courts continued, in violation of the spirit and letter of the law, to be secret courts operating in official clandestinity, in violation of the very law that established them, and the basic principles of juridical security and due process.
22. The act of opening the oral trial comprised the order to open the trial and the specific indications of the justiciable facts and the circumstances that appeared from the events and constituted the object of the trial. The parties had 48 hours to present their written legal description of the facts, of the participation of the accused, and of the causes that exempted or modified criminal liability, to file exceptions, to submit evidence, and for counsel to plead the guilt or innocence of the defendant.
23. Article 22 of Decree Law 46-82 reads as follows:
On the day set for the hearing and at the place of the court, the physical and material evidence against the accused shall be submitted and, after the parties come before the court, the President shall declare the hearing opened.
In view of the secrecy in which the courts operated, the above legal provision could be complied with either, since such courts did not have a known location.
24. Under the same law, the proceedings were directed by the President of the court, who conducted the hearing.
Also under the law on Special Courts, the President of the court had to ask the accused at the oral trial if he confessed to the acts with which he was charged, and a categorical answer was required. If the accused confessed to all of the justiciable acts and to their circumstances, the court would immediately hand down its sentence.
25. The law established the order for receipt of evidence: confession of the accused, testimony of witnesses, testimony of experts, submission of documents of which the court must take cognizance, judicial examinations, confrontation of witnesses, and any other proceedings the court deemed appropriate.
At the proper time, the following addressed the court in the order given: the agent of the District Attorney, the plaintiff and the defense counsel. The accused would then be asked if he had anything to declare, and any who so requested would be heard.
26. After the parties had made their statements, the court would hand down its sentence at the same session. Records were kept of each hearing by the court secretary, and the most important facts would be placed on record. The records would be signed by the members of the court, by the parties and by the secretary. The court would weigh the evidence, in accordance with its own conscience and equity.
27. No appeal could be filed against decisions of Special Courts, according to Article 33 of Decree Law 46-82. Subsequently, under Decree 111, issued after the first executions in September 1982, and on the recommendation of the Inter-American Commission on Human Rights, the Special Courts Act introduced as part of its procedural mechanics, the remedy of appeal, which could be filed orally or in writing, within 24 hours from the time the sentence of the first instance was handed down.
28. The proceedings of the second instance, which were governed by Article 4 of Decree Law 111, amending Article 33 of Decree-Law 82, provided that the appeals court set a hearing within the following three days, during which time new pleas and defenses could be presented and evidence could be submitted on the new pleas or on previous acts that could not have been submitted through no fault of the proponent.
The appeals court would accept evidence that was relevant, would decide on the evidence and would hand down its sentence at a single hearing.
29. Decree Law 111 introduced another change in the organization of the Special Courts, which consisted of designating special prosecutors to represent the District Attorney in the trial in order to take, as stipulated by the law, the necessary steps to achieve prompt, complete and exemplary administration of justice.
30. The law that established the Special Courts has been severely criticized by Guatemalan legal professionals, as the Commission learned during its on-site visit, and these criticisms have become increasingly sharp. Thus, the Bar Association, meeting in March 1983 in the city of Antigua, pointed out that the law establishing the Special Courts is contrary to legal practice, anti-juridical and violates internationally recognized human rights. It added in one of the resolutions adopted by the Congress of Lawyers that the existence and operation of such courts involves serious violations of the American Convention on Human Rights and international commitments acquired by the Guatemalan State, and asked the Government to modify its actions to comply with these treaties, which are the law of the land. The Bar Association resolution also criticized the courts for being discriminatory, and said that they tried only leftists and not rightists committing violence against the State.25
31. In the Commission’s view, the Special Courts did not provide the most elementary guarantees of due process, as it noted during its on-site visit following the first execution by shooting in Guatemala under the Government of General Ríos Montt, which directly showed the lack of judicial guarantees for persons tried by those courts. As a result of that study, the Commission made its first recommendations, whose contents are given in the introduction to this report. Based on these recommendations, corrections were made, even though only in small part, to the serious procedural irregularities shown in the court records, and the right of appeal, which had been denied to the first persons tried by these courts, was permitted.
32. With regard to the right to counsel, the Commission found that none of the accused, as indicated previously, had counsel to guide them and give them legal advice and professional aid before their statement was taken. The families of the persons who were tried and executed endeavored unsuccessfully to appoint lawyers as counsel, without, according to information given to the Commission, obtaining any results from their efforts.
33. The other due process guarantees contained in the American Convention on Human Rights have also been violated. The Commission found that subparagraph 4 of Article 7 on promptly informing detained persons about the reasons for their detention was not complied with. Neither was subparagraph 5 of Article 7, which stipulates that any person arrested or held should be brought without delay before a judge, because most of the detainees were confined and held incommunicado far beyond any reasonable time period. The remedy of habeas corpus provided for in subparagraph 6 of Article 7 has not been effective either. With regard to the right of being placed under the jurisdiction of a competent, independent and impartial court, which is guaranteed by paragraph 1 of Article 8, the records studied by the Commission of the persons tried and sentenced to death show that they did not enjoy that benefit either.
34. Likewise, most of the judicial guarantees established in paragraph 2 of Article 8 of the American Convention were not complied with, as the Commission found on examining the records of the trials that resulted in the execution by shooting of September 18, 1982. According to information received, neither were the trials that led to the executions of March 3 and March 21, 1983 which the Commission wished to review but was not authorized to do so by the Government.26 In fact, persons tried by such courts did not have the time and means to prepare their defense. They had no right to be defended by counsel of their own choosing with whom they could communicate freely and privately. Apparently witnesses were not called who might have been able to testify in favor of the accused about the events. The right not to be compelled to testify against one’s self was not respected, and confessions, according to much evidence received by the Commission, were obtained through coercion.
35. In the Commission’s judgment, the Special Courts showed the following procedural defects:
a) Their jurisdiction was very broad, since they covered both political crimes and common crimes related to political crimes, as well as all common crimes described in Titles VII, XI and XII of Book 2 of the Criminal Code;
b) Punishment was excessive, since not only was the penalty indicated in the law concerned doubled, but also the death sentence was applied to a large number of offenses that previously were not punished so severely;
c) The number of Special Courts and their territorial jurisdiction was unknown;
d) A system of Special Courts and their territorial jurisdiction was unknown;
d) A system of Special Courts was established, with other factors determining their jurisdiction being unknown;
e) Members of Special Courts could be lawyers or army officers designated by the President. However, it is not known whether any lawyers were appointed or whether only army officers served on these courts;
f) The investigation period was very short and restricted the possibility of adequate defense;
g) Sentences were often based on a confession that was neither free nor spontaneous. Many detainees reported to the Commission that they had been tortured;
h) Sentences were based on consensus, and therefore, the juridical bases of the penalty were unknown. Hence, the proofs were weighed according to the personal convictions of the judges instead of the rules of evidence;
i) The prosecution was in charge of special prosecutors appointed by the President, who could be lawyers or army officers, and their identity was unknown;
j) The courts were secret;
k) In general, the minimal procedural guarantees of due process were not observed, nor were the accused permitted to defend themselves adequately.
36. The Commission wishes to go on record noting that those procedures, carried out without respect for the minimal guarantees of due process, truly constituted a farce and regardless of where they might occur the practice of appointing unqualified judges, defenders who do not defend, a Public Ministry unconcerned with the prompt, fair and effective administration of justice and Law Courts that really are courts martial, devoid of independence and impartiality, that function in secret under military auspices, in fact impede rather than foster justice.
37. The Courts of special jurisdiction ceased to exist as of September 1, 1983. One of the first steps taken by the new Guatemalan government headed up by General Oscar Humberto Mejía Víctores, as previously stated, was to eliminate them. In his public statement upon assuming leadership of the Government, General Mejía Víctores expressed his own repudiation for such tribunals as follows: “they were secret courts established by Ríos Montt to hand down death penalties to alleged subversives and common criminals.”
38. Decree 93-83, which eliminates the Courts of special jurisdiction, provides that any trials that have been initiated by such tribunals are to be transferred to the Supreme Court for distribution among the corresponding tribunals of ordinary or exclusive jurisdiction. It repeals Article 4 of Law 46-82, which imposed the death penalty for the crimes contemplated in that law and which established double the prison sentence for the remaining crimes, fully restoring the penalties indicated in the penal laws. This change indicates the government’s recognition of the Commission’s recommendations and thesis in this regard.
1 Article 8. Right to a Fair Trial. 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice.
2 Article 5 of the Fundamental Statute of Government.
3 Article 74 of the Fundamental Statute of Government.
4 Articles 6 and 74 of the Fundamental Statute of Government.
5 Article 74 of the Fundamental Statute of Government.
6 Article 74 of the Fundamental Statute of Government.
7 Article 74 of the Fundamental Statute of Government.
8 Articles 75 and 26 subparagraph 5 of the Fundamental Statute of Government.
9 Articles 78 and 79 of the Fundamental Statute of Government.
10 Article 80 of the Fundamental Statute of Government.
11 Articles 81 and 82 of the Fundamental Statute of Government.
12 Article 83 of the Fundamental Statute of Government.
13 Article 84 of the Fundamental Statute of Government.
14 Article 87 of the Fundamental Statute of Government.
15 Article 88 of the Fundamental Statute of Government.
16 Article 104 of the Fundamental Statute of Government.
17 Article 105 of the Fundamental Statute of Government.
18 Article 107 of the Fundamental Statute of Government.
19 Article 105 of the Fundamental Statute of Government.
20 Article 242 of the 1965 Constitution of the Republic of Guatemala.
21 See Paragraph I.
22 Decree Law 46-82 establishing the Special Courts.
23 See Chapter I, paragraph I and Chapter II, paragraph C.
24 Most of the persons tried by the Special Courts who were interviewed personally by the Commission during its on-site visit to Guatemala gave this version.
25 Latin Reuter, March 20, 1983.
26 Under instructions by the Commission, the Executive Secretary unsuccessfully tried to arrange with the Guatemalan Ministry of Foreign Affairs to have the Government permit a lawyer from the Secretariat to review the records. While the Government gave its permission for the lawyer to travel to Guatemala, the Ministry of Foreign Affairs warned that: “because of the secret nature of the trials conducted by the Special Courts, I regret that the records cannot be made available.”