Opinion; Subjects: GUATEMALA, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.16-11333 (E) 250716 250716
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-fifth session (18-27 April 2016)
Opinion No. 19/2016 regarding Mauro Vay Gonon, Mariano García
Carrillo and Blanca Julia Ajtun Mejía (Guatemala)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights, which extended and clarified the Working Group’s
mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its
decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30
September 2010. The mandate was extended for a further three years in resolution 24/7 of
26 September 2013.
2.
In accordance with its methods of work (A/HRC/30/69), on 11 February 2016 the
Working Group transmitted a communication to the Government of Guatemala concerning
Mauro Vay Gonon, Mariano García Carrillo and Blanca Julia Ajtun Mejía. The
Government has not replied to the communication. The State is a party to the International
Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to the detainee) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
United Nations
A/HRC/WGAD/2016/19
General Assembly
Distr.: General
1 July 2016
English
Original: Spanish
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(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
disability or other status and aims towards or can result in ignoring the equality of human
rights (category V).
Submissions
Communication from the source
4.
Mauro Vay Gonon, born in Guatemala, usually resides in the canton of Cancin, in
the municipality of Santo Domingo Suchitepéquez. His unique identification number is
2431391951101. He is a 60-year-old Quiché Mayan leader who, from a very young age,
fought to defend human rights, mainly those of indigenous peoples and campesinos in
Guatemala. In 1992, he set up the Comité de Desarrollo Campesino (Campesino
Development Committee) with the aim of protecting the agricultural labour rights and
access to land of campesino families. He is currently the organization’s coordinator.
5.
Mariano García Carrillo, born in Guatemala, usually resides in the village of
Capellanía, in the canton of Santo Domingo (municipality of Chiantla). His unique
identification number is 2558141001302. He is a member of the Comité de Desarrollo
Campesino and a campesino leader at the national level.
6.
Blanca Julia Ajtun Mejía, born in Guatemala, usually resides in the canton of Siglo
II, in the municipality of Santa Cruz Muluá. Her unique identification number is
1844888501103. She is a member of the Comité de Desarrollo Campesino and a campesino
leader at the national level.
7.
On the morning of 26 June 2014, Mr. Vay Gonon, Mr. García Carrillo and Ms.
Ajtun Mejía travelled to the municipality of San José Ixcoy in Huehuetenango to attend a
community assembly with other members of the Comité de Desarrollo Campesino in order
to discuss the delivery of fertilizers and other matters related to land use.
8.
Once the assembly had finished, the three individuals caught a bus and stopped for
lunch in the canton of Santo Domingo Capellanía in Chiantla. At around 2.30 p.m., while
they waited by the side of the main road to Huehuetenango for another bus to take them to
the city, they were detained against their will by five plain-clothes individuals who claimed
to be members of the Chiantla Community Development Council. The authors’ captors then
called other people and kept the authors at that location.
9.
The source indicates that Mr. Vay Gonon, Mr. García Carrillo and Ms. Ajtun Mejía
were detained by four Community Development Council members and three deputy mayors
from Chiantla, who, the source maintains, had no authority to arrest or detain individuals.
10.
At around 4 p.m., Mr. Vay Gonon, Mr. García Carrillo and Ms. Ajtun Mejía were
delivered into the hands of officers of the National Civil Police who were driving police
vehicle No. HUE-091 and were on duty at substation No. 43-13 of the National Civil Police
in Chiantla.
11.
According to oral statements made by the captors, the three individuals in question
were detained after being caught in the act of bringing together local residents with the
intention of asking them for money in exchange for a reduction in the cost of the electricity
supplied by the company Energuate, because, as members of the Comité de Desarrollo
Campesino, they were able to connect households directly to an electric power unit and
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would be charged only a consumption fee. The captors stated that using the electricity
supply in that manner would amount to robbery or theft at the expense of Energuate, so
they detained the authors.
12.
At the end of the authors’ time in police precautionary detention, the National Civil
Police officer in charge at substation No. 43-13 in Chiantla signed the police precautionary
detention order. Subsequently, the justice of the peace in Chiantla ordered the authors’
detention and forwarded the case file to the criminal trial judge for drug-related offences
and crimes against the environment of the department of Huehuetenango, who then bound
the authors over for trial.
13.
The National Civil Police officers stated that the three individuals were transferred
to detention centres in the departmental capital (Mr. Vay Gonon and Mr. García Carrillo
were sent to a men’s public prison and Ms. Ajtun Mejía to a women’s public prison; both
prisons are in the department of Huehuetenango).
14.
At a hearing on 27 June 2014, the criminal trial judge for drug-related offences and
crimes against the environment of the department of Huehuetenango declared that the
detention was lawful, without verifying that the authors had in fact been caught in flagrante
delicto or the existence of any evidence, and found that the authors’ arrest was justified.
The authors were charged with coercion, making threats, aggravated fraud, sedition,
incitement to commit a crime and breaching internal State security.
15.
At the same hearing, the trial judge ordered the authors’ detention on remand for
aggravated fraud and for breaching internal State security, which are offences under articles
264 (1) and 390 (2), respectively, of the Guatemalan Criminal Code, deciding not to use an
alternative to pretrial detention on the grounds that there was a danger of obstruction of the
truth, as established in article 263 of the Guatemalan Code of Criminal Procedure. The
judge explained that the movement to which the defendants belonged operated at the
national level and could influence other persons who were being criminally prosecuted and
cause witnesses to give false testimony. The source maintains that detention on remand
may be imposed on an exceptional basis to ensure that defendants are present during their
trial, provided that there is a fact, circumstance or element of behaviour that could
reasonably imply the existence of risk.
16.
On 2 July 2014, the defendants’ legal defence filed an appeal against the remand
order issued on 27 June 2014 by the criminal trial judge with the Seventh Chamber of the
Court of Appeal dealing with criminal matters, drug-related offences and crimes against the
environment of the department of Huehuetenango, requesting that the order should be
revoked and that the defendants should be released immediately. On 9 July 2014, the
Seventh Chamber of the Court of Appeal declared the appeal inadmissible and reiterated
that the detention was lawful and that the authors had been caught in flagrante delicto. In
doing so, the Court took it as read that the authors had in fact been caught in flagrante
delicto, without checking whether there was any evidence to that effect or establishing
specific facts that demonstrated that the authors had been caught in the act of committing
the two offences of which they had been charged.
17.
On 4 July 2014, the defendants’ legal defence submitted an application for the
remedy of habeas corpus to the trial judge, arguing that: (a) no arrest warrant had been
issued pursuant to the law by a competent authority; (b) the authors were detained by
private individuals, Community Development Council members, deputy mayors and local
residents, rather than by National Civil Police officers; (c) the National Civil Police officers
had no knowledge of an offence having been committed, nor was there any evidence to that
effect; (d) there was no formal evidence that an offence had been committed; (e) the only
formal document submitted during the proceedings was police precautionary detention
order No. 830/2014. On 7 July 2014, the Seventh Chamber of the Court of Appeal, acting
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as a habeas corpus court, found that the authors were not detained, prevented from enjoying
their individual freedom or threatened with the loss of that freedom in a manner that would
require the restoration or safeguarding of their freedom to be secured. The Chamber
therefore declared the application for the remedy of habeas corpus inadmissible.
18.
On 25 July 2014, a second application for the remedy of habeas corpus was
submitted before the Constitutional Court, which declared it inadmissible on the grounds
that it was the Supreme Court that was competent to hear the application. The source
indicates, however, that the Supreme Court had already dismissed the previous application
as inadmissible.
19.
On 29 September 2014, an intermediary hearing was held, during which the trial
judge granted an alternative to pretrial detention, replacing the charge of aggravated fraud
with attempted aggravated fraud and excluding the claim made at the outset of the authors’
detention that they had been caught in flagrante delicto. Accordingly, the judge ordered the
opening of a trial for the offences of breaching internal State security and attempted
aggravated fraud. After the hearing, the authors’ bail was posted.
20.
The source reports that the authors remain in detention, under house arrest, and
cannot leave their respective departmental constituencies. The judge scheduled the public
hearing for 16 February 2016, as ordered by the judge at the hearing of 29 September 2014.
21.
The source goes on to explain that there have been some irregularities during the
course of the legal proceedings, including the fact that Mr. Vay Gonon, Mr. García Carrillo
and Ms. Ajtun Mejía were arrested without a warrant or any legal basis. The failure to meet
those legal requirements made it necessary to claim that the authors had been caught in
flagrante delicto. The source explains that falsely claiming that the authors had been caught
in flagrante delicto — to date, the truth of the claim has not been proved — avoiding the
requirement for an arrest warrant and facilitating an arrest without presenting a warrant
amount to fraudulent acts under article 4 (2) of the Judiciary Act of Guatemala.
22.
As to the handing over of the three individuals to National Civil Police officers, the
source states that the officers had been unaware of the events and had arrived at the scene
only after being called by the captors. Moreover, they have accepted the captors’ version of
events without investigating their claims.
23.
The source maintains that, in the police precautionary detention order, the claim that
the authors were caught in flagrante delicto is not well grounded or described, in that
mention is made only of articles 7 and 8 of the Constitution, which require notification of
the grounds for arrest and of the rights of each defendant. No other legal provision is cited
to justify the authors’ arrest. Consequently, the source considers that the police
precautionary detention order is vitiated by the fact that it is very general and does not
contain the information required by article 305 of the Guatemalan Code of Criminal
Procedure (a description of the steps taken by the police, an indication of the day when they
were taken and any particulars that might be useful for the investigation, among others).
24.
The source adds that the detention of Mr. Vay Gonon, Mr. García Carrillo and Ms.
Ajtun Mejía is arbitrary for the following reasons:
• The authors were detained not by a competent authority but by private individuals
who did not have a warrant.
• It is impossible to invoke any legal basis justifying the detention, given that the
persons in question were not caught in flagrante delicto.
• The trial judge based the detention on the captors’ claim that the authors had been
caught in flagrante delicto, without conducting an investigation into the claim.
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• All detained persons have the right to be informed of the reasons for their arrest and
of any charges against them. In the present case, however, there is no record of
police officers having immediately notified the detainees of the reasons for their
arrest.
• The deprivation of liberty results from the exercise of the following rights or
freedoms enshrined in the Universal Declaration of Human Rights: freedom of
movement (art. 13), since the authors had travelled to the place of arrest to meet five
fellow community representatives; the right to freedom of thought (art. 18), since
they intended to hold a meeting to express ideas and thoughts regarding the delivery
of fertilizers and other matters of interest to them as campesinos, freely and without
offending anyone or committing any offence; and the right to freedom of peaceful
assembly (art. 20), since they intended to meet peacefully with five people to
exchange ideas on the delivery of fertilizers and other matters of common interest in
their capacity as campesinos and community representatives.
• The deprivation of liberty also results from the exercise of the following rights
enshrined in the Covenant: freedom of movement (art. 12); freedom of thought (art.
18); freedom of opinion (art. 19); freedom of assembly (art. 21); freedom of
association (art. 22); and the prohibition of discrimination (art. 26).
• There was a breach of international standards relating to the right to a fair trial as
established in the Universal Declaration of Human Rights (arts. 8-11) and in other
relevant international instruments.
• The detention, including the pretrial detention, is based on vaguely and ambiguously
defined criminal offences.
25.
Lastly, in the light of the foregoing, the source maintains that the detention of the
three authors is arbitrary under categories I, II and III of the categories applicable to the
consideration of cases submitted to the Working Group. The lack of an arrest warrant, the
fact that it is impossible to invoke any legal basis justifying the detention as the authors
were not caught in flagrante delicto, the failure to conduct a preliminary investigation and
to respect international standards relating to the right to a fair trial, and the fact that the
authors’ detention resulted from the legitimate exercise of their rights to freedom of
opinion, expression and peaceful assembly under articles 19 and 20 of the Universal
Declaration of Human Rights and 21 and 22 of the Covenant, amounts to a violation of the
human rights enshrined in articles 9 (prohibition of arbitrary detention), 10 (the right to a
fair and public hearing by an independent and impartial tribunal) and 11 (presumption of
innocence) of the Universal Declaration of Human Rights, and of articles 9 and 14 (1), (2)
and (3) of the Covenant.
Response from the Government
26.
In a letter dated 11 February 2016, the Working Group sent a summary of the case to
the Government of the Republic of Guatemala and informed it of its right to provide
information in response to the allegations presented by the source.
27.
The Working Group would have liked the Government to respond to the letter.
Nevertheless, given that the source’s submissions have not been countered by the
Government, even though it has been given the opportunity to do so, the Working Group
considers that it is in a position to issue an opinion on the detention of Mr. Vay Gonon, Mr.
García Carrillo and Ms. Ajtun Mejía.
28.
Bearing in mind that the Government has not replied to the communication
transmitted to it or requested an extension of the deadline for doing so, the Working Group
finds that the Government of the Republic of Guatemala has failed to cooperate. The
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Working Group therefore considers that it should render its opinion on the basis of the
allegations submitted, which it considers prima facie as valid.
29.
In accordance with rule 15 of its methods of work, the Working Group renders the
following opinion based on all the information compiled.
Discussion
30.
On 26 June 2014, Mr. Vay Gonon, Mr. García Carrillo and Ms. Ajtun Mejía were
detained at the side of a road by five people who were not empowered by law to arrest or
detain anyone. The authors were subsequently handed over by their captors to National
Civil Police officers.
31.
According to the captors, Mr. Vay Gonon, Mr. García Carrillo and Ms. Ajtun Mejía
were detained after being caught in the act of bringing together local residents with the
intention of asking them for money in exchange for a reduction in the cost of the electricity
supplied by the company Energuate, because, as members of the Comité de Desarrollo
Campesino, they were able to connect households directly to an electric power unit and
would be charged only a consumption fee. The captors stated that using the electricity
supply in that manner would amount to robbery or theft at the expense of Energuate, so
they detained the authors.
32.
On 27 June 2014, the judiciary declared that the detention was lawful, without
verifying that the authors had in fact been caught in flagrante delicto or the existence of any
evidence, and without even analysing the reasonableness of the detention, which it found to
be valid. As noted by the Human Rights Committee in paragraph 39 of its general comment
No. 35 (2014) on liberty and security of person: “Review of the factual basis of the
detention may, in appropriate circumstances, be limited to review of the reasonableness of a
prior determination.” The remand order, however, was issued for the offences of aggravated
fraud and breaching internal State security. In examining the applications for the remedy of
habeas corpus and the appeals that were submitted, the various courts did not analyse the
relevant factual and legal aspects presented by the defendants and upheld the lawfulness of
the detention on the grounds that the defendants had been caught in flagrante delicto.
33.
The Government of the Republic of Guatemala, having been given the opportunity
to explain how, when, where and under what conditions criminal investigations were
carried out into the allegations, in fulfilment of its international human rights obligations,
chose not to reply.
34.
The Working Group received convincing information that: (a) the offences of which
the authors are accused are vague (breaching internal State security and attempted fraud);
(b) no arrest warrant was issued pursuant to the law by a competent authority; (c) the
authors were detained by private individuals without authority or justification; and (d) there
is no relevant, lawful evidence that the defendants committed an offence.
35.
Although the Working Group has been informed that Mr. Vay Gonon, Mr. García
Carrillo and Ms. Ajtun Mejía are under house arrest pending trial, in accordance with rule
17 of its methods of work, it considers the issuance of this opinion appropriate and is
convinced that the arrests in the present case were made without a warrant or any legal
basis. Moreover, the judiciary sought to justify the arrests by stating that the authors had
been caught in flagrante delicto on the sole basis of the erroneous version of events given
by the captors, who had no authority to detain individuals. The Working Group was not
convinced that the offences of which the authors are accused can be identified by private
individuals during their commission. Furthermore, when they were detained, the three
individuals were travelling along a road on public transport to a community that the captors
had no reason to know about.
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36.
The Working Group considers that the detention of Mr. Vay Gonon, Mr. García
Carrillo and Ms. Ajtun Mejía was in violation of their rights to freedom of thought and
expression, since they intended to hold a meeting to express freely ideas and opinions
regarding the delivery of fertilizers and other matters of interest to them as campesinos.
Moreover, they were detained because they planned to exercise their right to freedom of
peaceful assembly, in that they intended to meet peacefully with five people to exchange
ideas on those topics in their capacity as campesinos and community representatives.
37.
Given the lack of an arrest warrant issued by a competent authority, the fact that it is
impossible to invoke any legal basis justifying the detention — the detention by the private
individuals, at least — the failure to substantiate the claim that the authors were detained
after being caught in flagrante delicto, and the fact that the detention of Mr. Vay Gonon,
Mr. García Carrillo and Ms. Ajtun Mejía resulted from, or aimed to prevent, the legitimate
exercise of their rights to freedom of opinion, expression and peaceful assembly, the
Working Group considers that the authors’ detention is arbitrary.
Disposition
38.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mauro Vay Gonon, Mariano García Carrillo and
Blanca Julia Ajtun Mejía is arbitrary and falls under categories I, II and III of the
categories of arbitrary detention applicable to the consideration of cases submitted to
the Working Group.
39.
Under applicable international law, victims of arbitrary detention have the right to
seek and obtain reparation from the State, including restitution, compensation,
rehabilitation, satisfaction and guarantees of non-repetition. In accordance with this
opinion, the Working Group requests the Government of Guatemala to afford
comprehensive redress to Mr. Vay Gonon, Mr. García Carrillo and Ms. Ajtun Mejía.
[Adopted on 27 April 2016]