A/HRC/WGAD/2022/85

GE.23-06076 (E) 220124 220124

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-fifth session, 14–18 November 2022

Opinion No. 85/2022 concerning Sergio Alfredo Herrera Acevedo

(Guatemala)

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work,1 on 3 December 2021 the Working Group

transmitted to the Government of Guatemala a communication concerning Sergio Alfredo

Herrera Acevedo. The Government replied to the communication on 31 January 2022. 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 him or her) (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 Covenant (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);

(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 any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2022/85

General Assembly

Distr.: General

22 May 2023

English

Original: Spanish

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Submissions

Communication from the source

4.

Sergio Alfredo Herrera Acevedo is a Guatemalan citizen. His identification document

number is 2529 89929 0101.

5.

The source explains that, in 2003, an investigation into money-laundering was

initiated against Mr. Herrera Acevedo’s father and several other persons. In this connection,

two criminal trials2 were initiated but were subsequently brought to a close pursuant to

multiple court rulings.

6.

On 5 March 2008, the Counsel General’s Office and other agencies involved in the

matter reached an agreement on the mutual restitution of property. In this connection, on

12 March 2009, Mr. Herrera Acevedo’s father was released from the criminal proceedings

and his innocence was established in the judicial decision that dismissed the case. On 14 July

2010, a second agreement was signed, this time between an agency that was allegedly

involved in the matter and the Counsel General. On 1 December 2010, this agreement was

upheld by the Second Court of First Instance for Criminal Matters, Drug Trafficking and

Environmental Offences of the Department of Guatemala.

7.

On 22 November 2011, the Twelfth Court of First Instance for Criminal Matters, Drug

Trafficking and Environmental Offences of the Department of Guatemala ruled that the

Public Prosecution Service could not proceed with this case. In other words, the Public

Prosecution Service could no longer initiate or continue criminal proceedings in connection

with these claims because the relevant contracts had been legally terminated and a settlement

had been signed and approved by a court of law.

8.

On 30 August 2012, the Second Court of First Instance for Criminal Matters, Drug

Trafficking and Environmental Offences declared the preliminary motion to be admissible.

A motion of this sort is entered when the reported facts do not constitute offences in

themselves and require the prior issuance of an independent finding by a court in order to be

considered as such.3

9.

The decision of 22 November 2011 establishing that no legal action should be taken

was upheld on 14 February 2014 when the Second Chamber of the Court of Appeals of the

Criminal, Drug Trafficking and Environmental Crimes Branch dismissed the appeal against

this decision filed by the Public Prosecution Service and other agencies. The decision of

30 August 2012 relating to the preliminary motion was not challenged, so the two decisions

were considered final, giving rise to res judicata.

10.

On 10 April 2019, however, the Public Prosecution Service, in an ex parte hearing,

requested the reopening of the proceedings. At this hearing, the Public Prosecution Service

requested the issuance of warrants for the arrest of several people, including Mr. Herrera

Acevedo and his father, without taking into account that an enforceable court decision to

dismiss the case had been issued in 2009.

11.

Mr. Herrera Acevedo was arrested on 12 April 2019, supposedly so that he could be

investigated in connection with the same proceedings that had already been concluded more

than 18 years previously. In this regard, the First Court of First Instance for Criminal Matters,

Drug Trafficking and Environmental Offences for High-Risk Trials categorized as Group

“D” issued an order for his provisional detention, a concept that allegedly does not exist in

the Guatemalan legal system.

12.

Subsequently, on 6 May 2019, his first arraignment hearing began before the First

Court. At that hearing, the provisional detention order was changed to an order for pretrial

detention. In view of this situation, the defence filed a motion to dismiss the case, requesting

that the decision establishing that no legal action should be taken, which had been issued and

considered enforceable since 22 November 2011, be respected. This motion was rejected by

the First Court.

2 Trials No. 01071-2005-01599 and No. 01075-2003-05426.

3 Code of Criminal Procedure, art. 291.

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13.

Mr. Herrera Acevedo and the defendants filed a motion for the application of prior

decisions, by which the judge was requested to comply with the previous court decisions,

including the finding that no legal action should be taken, in accordance with which a number

of court decisions and final judgments had brought the proceedings to a close. This motion

was also denied at the hearing held on 6 May 2019. The defence appealed against the

decision.

14.

On 21 December 2020, the Second Chamber of the Criminal Court of Appeals for

High-Risk Trials and In Rem Forfeiture of the Department of Guatemala declared the appeal

to be admissible and consequently overturned the decision of 6 May 2019. In so doing, the

Court rendered null and void the coercive measures applied to the defendants and stated that

its decision was “to be executed immediately upon notification of the enforceable decision

to the lower Court”, since the reopening of the criminal proceedings, “in addition to being

legally aberrant, constitutes an arbitrary act that must be corrected by this decision”, owing

to the fact that “there are no new facts or circumstances that would warrant the reopening of

the criminal proceedings; therefore, there is nothing to suggest that this was anything but a

matter of reopening the same proceedings as before, thereby constituting a situation of double

jeopardy in the absence of a punishable act.”

15.

To date, in spite of this decision, which overturned all the measures that had been

taken, including the coercive measures, and despite the fact that Mr. Herrera Acevedo has

spent more than two years in detention in connection with a trial that has been closed, he

remains in detention in the Mariscal Zavala Detention Centre, even though there is no longer

any court order in force to justify his detention. This is because the Second Chamber of the

Court of Appeals has not executed all the notifications provided for in domestic law for the

enforcement of the judgment that was issued. In other words, formal obstacles have served

as a pretext for prolonging a period of detention for which there is no enforceable court order.

In any case, the decision of 21 December 2020 issued by the Second Chamber of the Court

of Appeals is immediately enforceable, and no general remedy may be implemented against

it. Furthermore, even if a special remedy were to be filed, it would not stay the enforcement

of the decision.

16.

The source states that, owing to overcrowding, which prevents physical distancing

measures from being implemented, as well as the lack of water and poor hygiene standards,

persons deprived of their liberty are one of the groups most affected by the coronavirus

disease (COVID-19) pandemic. Guatemala has one of the highest rates of prison

overcrowding in the region and the world.

17.

In view of the above, there is a strong possibility that Mr. Herrera Acevedo will

contract COVID-19 while he remains in detention. Other persons held at the Mariscal Zavala

Detention Centre have been infected with COVID-19 and some have reportedly died from it.

18.

The source argues that the detention in the present case falls under category I, since

there is no arrest warrant or pretrial detention order in force against Mr. Herrera Acevedo.

On 21 December 2020, the Second Chamber of the Court of Appeals overturned all the

decisions taken by the first instance court and ordered Mr. Herrera Acevedo’s immediate

release. However, this decision has not been implemented.

19.

The source recalls that any deprivation of liberty for which there is no legal basis or

that is not carried out in the manner prescribed by law is arbitrary.4 Furthermore, detentions

that were not initially arbitrary because they satisfied the requirements of legality, necessity

and proportionality may no longer satisfy these requirements insofar as the circumstances of

the detention, or those that gave rise to the detention, may have changed significantly.5

20.

In the source’s view, since the Second Chamber of the Court of Appeals issued its

decision on 21 December 2020, there has been no legal basis that might justify the length of

time that the deprivation of liberty has lasted. The fact that not all the notifications needed

for the enforcement of the decision have been made does not render lawful a detention that

4 See opinions No. 1/2017, No. 30/2017, No. 35/2018, No. 70/2018 and No. 49/2019.

5 A/HRC/45/16, annex II, Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the

context of public health emergencies, para. 11.

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has been ongoing for months after the release was ordered. The decision should have been

executed immediately, as the right to personal liberty is clearly being infringed by pretrial

detention lasting for more than two years. Domestic bureaucratic procedures are no

justification for the State’s failure to enforce its own court decisions.

21.

The source therefore argues that the detention is arbitrary under category I of the

Working Group as it is clearly impossible to invoke any legal basis justifying the deprivation

of liberty.

22.

The source requests the Government to take the necessary measures to respect and

guarantee Mr. Herrera Acevedo’s right to freedom from arbitrary detention and his right to

life and integrity.

23.

With regard to the public health emergency and arbitrary deprivation of liberty, the

Working Group has stated, in its deliberation No. 11, that taking into account that

overcrowding and poor hygiene pose a particular risk of spreading COVID-19, States should

seek to reduce prison populations and other detention populations wherever possible.6 In

addition, the Working Group has stated that the public health emergency calls for a

reassessment of the necessity and proportionality of deprivation of liberty.7

24.

The Office of the United Nations High Commissioner for Human Rights called on

Governments to take urgent action to protect the health and safety of people in detention or

held in other closed facilities. In this regard, it indicated that, given that outbreaks and several

deaths have already occurred in prisons and other institutions in a growing number of

countries, the authorities should act immediately to prevent further loss of life among

detainees and staff.8

25.

All the above concerns are even more pressing if one takes into account that, in the

present case, there is not even a legal basis for Mr. Herrera Acevedo’s ongoing deprivation

of liberty. The State’s failure to release him, despite the fact that the Second Chamber of the

Court of Appeals ordered his release on 21 December 2020, has a serious impact on his right

to personal liberty and his life, integrity and health.

Response from the Government

26.

The Working Group transmitted the source’s allegations to the Government,

requesting it to provide a response, along with detailed information on the case of Mr. Herrera

Acevedo, before 1 February 2022. The Government was also requested to clarify the legal

and factual provisions justifying Mr. Herrera Acevedo’s detention and their compatibility

with the obligations of Guatemala under international human rights law and, in particular,

the treaties ratified by the State.

27.

The Working Group urged the Government of Guatemala to ensure the physical and

mental integrity of Mr. Herrera Acevedo during the COVID-19 pandemic and to prioritize

the use of non-custodial measures at all stages of the criminal proceedings, including at the

pretrial, trial, sentencing and sentence enforcement stages, all in accordance with the

recommendations of the World Health Organization of 15 March 2020 concerning the

response to COVID-19 in places of detention. The Government submitted its response on

31 January 2022.

28.

In its response, the Government informs the Working Group that, based on a report

recognized and identified by the public prosecutor’s office of the Metropolitan District of the

Public Prosecution Service, it appears that the case has been dismissed in favour of

Mr. Herrera Acevedo, who is classed as a defendant. The case file also shows that no request

for his arrest was issued.

6 Ibid., para. 16.

7 Ibid., paras. 13–14.

8 Office of the United Nations High Commissioner for Human Rights, “Urgent action needed to

prevent COVID-19 ‘rampaging through places of detention’”, 25 March 2020. This statement may be

consulted at www.ohchr.org/es/2020/03/urgent-action-needed-prevent-covid-19-rampaging-through-

places-detention-bachelet.

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29.

In addition, the Government states that, in accordance with the Constitution and the

laws in force, both the right to due process and the freedom of all persons to bring proceedings

before a court are respected. According to the Government’s records, Mr. Herrera Acevedo

is mentioned in 11 case files as a defendant, an initiator, an interested third party, an appellant

in ordinary and special remedies, a plaintiff, a respondent and an applicant, among other

roles.

30.

However, the Government points out that most of the legal proceedings concerned

were initiated by Mr. Herrera Acevedo, which has limited the conduct and outcome of the

relevant judicial proceedings. The Constitution enshrines the right to a defence, thereby

guaranteeing that persons who participate in proceedings have the opportunity to present and

refute arguments, put forward evidence and challenge decisions in the manner provided for

by law, among other actions. Therefore, any action by the authorities that prevents the use of

such mechanisms is a violation of a constitutionally recognized right.

31.

In response to the Working Group’s comment concerning the compatibility of the

detention with the State’s international human rights obligations, the Government asserts that

legal interpretation in a constitutional State should be carried out systematically, taking into

account that the domestic legal order is subject to the precepts enshrined in the Constitution.

Thus, State agencies, individuals and citizens are required to interpret legal standards in

accordance with the principles and tenets emanating from the Constitution and the rest of the

rules that make up the constitutional body of law. This term refers to standards and principles

that, without being part of the formal text of the Constitution, have been incorporated by

other means and may be used to review the constitutionality of laws and acts carried out by

the authorities. Their function is to serve as a tool for incorporating international law,

ensuring that domestic law is in line with the State’s international commitments and

supplementing guarantees of human rights in the country.

32.

With regard to the Working Group’s request concerning the physical and mental

integrity of Mr. Herrera Acevedo, the Government notes that the Directorate General of the

Prison System of the Ministry of the Interior submitted a psychological report (on

29 December 2021) and a medical report (on 6 January 2022) detailing Mr. Herrera

Acevedo’s state of health.

33.

With regard to Mr. Herrera Acevedo’s mental state, it has been established that he

maintains an accurate sense of time and space, an ample capacity for abstract thought, a good

memory, good motor control and a high level of critical judgment and that he shows no signs

of suffering from anxiety or depression.

34.

The Government affirms that Mr. Herrera Acevedo is undergoing treatment for the

ailments identified in the medical report.

35.

In accordance with the recommendation of the Working Group, and in the light of the

current health crisis stemming from the persistence of COVID-19, the Government reports

that the management of the pretrial detention centre complies with the protocol proposed by

the Directorate General of the Prison System and all the specified prevention and safety

measures. In coordination with the Mariscal Zavala brigade, the population of the detention

centre was vaccinated on 1 October and 20 December 2021.

Discussion

36.

The Working Group thanks the source and the Government for their submissions.

37.

In determining whether Mr. Herrera Acevedo’s detention is arbitrary, the Working

Group refers to the principles established in its jurisprudence regarding evidentiary issues. If

the source has established a prima facie case of arbitrary detention constituting a breach of

international human rights law, the burden of proof rests upon the Government if it wishes

to refute those allegations.9 Mere assertions by the Government that lawful procedures have

been followed are not sufficient to rebut the source’s allegations.

9 A/HRC/19/57, para. 68.

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38.

The Working Group wishes to reaffirm that States have the obligation to respect,

protect and fulfil all human rights and fundamental freedoms, including the liberty of person,

and that any national law allowing deprivation of liberty should be made and implemented

in conformity with the relevant international standards set forth in the Universal Declaration

of Human Rights, the Covenant and other applicable international and regional instruments.

Consequently, even if the detention is in conformity with national legislation, regulations and

practices, the Working Group has a mandate to assess the judicial proceedings and the law

itself to determine whether the detention is also consistent with the relevant provisions of

international human rights law.

Category I

39.

The Working Group received information from the source on the case of Mr. Herrera

Acevedo, who was detained as a result of a decision taken by the Public Prosecution Service

in an ex parte hearing following its request to have a closed case reopened.

40.

At this hearing, the Public Prosecution Service requested the issuance of warrants for

the arrest of several people, including Mr. Herrera Acevedo, without taking into account that

an enforceable court decision to dismiss the case had been issued in 2009.

41.

Mr. Herrera Acevedo was arrested on 12 April 2019, supposedly so that he could be

investigated in connection with the same proceedings that had been concluded more than

18 years previously. The First Court of First Instance for Criminal Matters, Drug Trafficking

and Environmental Offences for High-Risk Trials categorized as Group “D” issued an order

for his provisional detention, a concept that allegedly does not exist in the Guatemalan legal

system.

42.

On 6 May 2019, his first arraignment hearing took place before the First Court. At

that hearing, the provisional detention order was changed to an order for pretrial detention.

In view of this situation, the defence filed a motion to dismiss the case, requesting that the

decision establishing that no legal action should be taken, which had been issued and

considered enforceable since 22 November 2011, be respected. This motion was refused.

43.

In response to the judge’s decision, the defence lawyers filed a motion for the

application of prior decisions, by which the judge was requested to comply with the previous

court decisions, including the finding that no legal action should be taken, in accordance with

which a number of court decisions and final judgments had brought the proceedings to a

close. This motion was also denied at the hearing held on 6 May 2019. The defence then

appealed against the decision.

44.

On 21 December 2020, in response to the appeal that had been filed, the Second

Chamber of the Criminal Court of Appeals for High-Risk Trials and In Rem Forfeiture

declared the appeal to be admissible and consequently overturned the decision of 6 May

2019, rendering null and void the coercive measures applied to the defendants.

45.

The Working Group notes that this judgment established that it should “be executed

immediately upon notification”, since the reopening of the criminal proceedings, “in addition

to being legally aberrant, constitutes an arbitrary act that must be corrected by this decision”,

owing to the fact that “there are no new facts or circumstances that would warrant the

reopening of the criminal proceedings; therefore, there is nothing to suggest that this was

anything but a matter of reopening the same proceedings as before, thereby constituting a

situation of double jeopardy in the absence of a punishable act.”

46.

To date, in spite of this decision, which overturned all the measures that had been

taken, including the coercive measures, and despite the fact that Mr. Herrera Acevedo has

spent more than two years in detention, he remains in detention in the Mariscal Zavala

Detention Centre, even though there is no longer any court order in force to justify his

detention. This is because the Second Chamber of the Court of Appeals has not executed all

the notifications provided for in domestic law for the enforcement of the judgment. In other

words, formal obstacles have served as a pretext for prolonging a period of detention for

which there is no enforceable court order. In any case, the decision of 21 December 2020

issued by the Second Chamber of the Court of Appeals is immediately enforceable, and no

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general remedy may be implemented against it. Furthermore, even if a special remedy were

to be filed, it would not stay the enforcement of the decision.

47.

Article 9 of the Universal Declaration of Human Rights provides that “no one shall be

subjected to arbitrary arrest, detention or exile”. Article 9 (4) of the Covenant entitles anyone

who is deprived of liberty by arrest or detention to take proceedings before a court, in order

that the court may decide without delay on the lawfulness of the detention and order release

if the detention is not lawful.

48.

The Working Group recalls that category I applies to cases of detention that have no

legal basis, as when a person is kept in detention after the completion of his or her sentence

or despite an amnesty law applicable to him or her. The Working Group reiterates that

deprivation of liberty is not only a matter of legal definition, but also of fact, and that, as

stated by the Human Rights Committee in paragraph 18 of its general comment No. 35

(2014), a decision to deprive a person of liberty without a final judgment must be justified as

reasonable, necessary and proportionate in the light of the circumstances and reassessed as it

extends in time. None of these conditions has been met in the case of Mr. Herrera Acevedo’s

detention.

49.

In the present case, Mr. Herrera Acevedo remains deprived of his liberty, despite the

existence of judicial decisions dated 12 March 2009, 22 November 2011, 30 August 2012,

14 February 2014 and 21 December 2020, which have put an end to the judicial proceedings

against him and preclude the possibility of initiating any further criminal proceedings in that

connection. These decisions have also disassociated him from the offence, the investigation

and the criminal trial for which he was detained in the first place.

50.

Category I applies to cases where there is no legal basis for the detention. Such a legal

basis requires not only that a law exist in the legal system, but also that it be applicable to the

circumstances of the specific case in accordance with the procedures established in law and

the guarantees of the Covenant. These include the guarantee of release in the event that the

court finds the detention to be unlawful. In the present case, the judge has found Mr. Herrera

Acevedo’s detention to be unlawful and lacking in any legal basis and has ordered his release.

However, this has not occurred owing to obstacles put in place by the Public Prosecution

Service and allowed to stand by other judicial authorities. In view of the above, Mr. Herrera

Acevedo’s deprivation of liberty must be considered as arbitrary because it violates article 9

of the Covenant, placing it in category I.

51.

Furthermore, it is important to note that Mr. Herrera Acevedo was detained at the

request of, and by, the Public Prosecution Service, despite the fact that, under international

human rights law, the prosecutorial body cannot be considered an independent and impartial

judicial authority for the purposes of article 9 (3) of the Covenant.10 Any form of detention

or imprisonment should be ordered by a judicial or other authority in keeping with the law or

be subjected to the effective control of the judicial authority, the status and mandate of which

should afford the strongest possible guarantees of competence, impartiality and independence

in accordance with principle 4 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment. All the actions described in this complaint

fall into category I, as identified by the Working Group.

52.

Category I also applies because Mr. Herrera Acevedo is being detained solely because

he is the son of a person involved in a trial; he has not been charged with any offence.11 The

fact that there is therefore no legal provision to justify his detention supports the Working

Group’s view that his detention is arbitrary.

53.

The Working Group is deeply concerned to note that Mr. Herrera Acevedo has been

held in pretrial detention for more than two years, and it recalls that deprivation of liberty

must not be punitive in nature and must be based on an individual evaluation of each case.

Furthermore, article 9 (3) of the Covenant requires that the justification for pretrial detention

be analysed in a reasoned judicial decision in every case. According to the information

10 Human Rights Committee, general comment No. 35 (2014), para. 32. See also Opinions No. 14/2015,

para. 28; No. 5/2020, para. 72; No. 6/2020, para. 47; and No. 41/2020, para. 60. See also

A/HRC/45/16/Add.1, para. 35.

11 Human Rights Committee, general comment No. 35 (2014), para. 16.

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received, this has not occurred in the case of Mr. Herrera Acevedo. The judge presiding over

the case has ignored this requirement.

54.

The Working Group emphasizes that, in accordance with article 9 (3) of the Covenant,

pretrial detention should be the exception rather than the rule and should be ordered for the

shortest possible time. In other words, liberty is recognized in the Covenant as the prime

consideration, with pretrial detention being an exception. Pretrial detention must thus be

based strictly on an individualized determination that it is reasonable and necessary for such

purposes as to prevent flight, tampering with evidence or the recurrence of the offence. The

Government has not provided the Working Group with any plausible explanation in this

respect, aside from some general comments.

55.

To make matters worse, Mr. Herrera Acevedo remains in pretrial detention despite

the fact that the Working Group has issued a call to States regarding the use of custodial

measures during the COVID-19 pandemic.

56.

In view of the above, the Working Group concludes that Mr. Herrera Acevedo’s

detention is arbitrary under category I. Owing to the seriousness of all the facts as submitted,

which the Government has neither explained nor rebutted on the basis of any legal argument,

the Working Group has decided to refer the present case to the Special Rapporteur on the

independence of judges and lawyers.

Disposition

57.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Sergio Alfredo Herrera Acevedo, being in contravention

of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 of the

International Covenant on Civil and Political Rights, is arbitrary and falls within

category I.

58.

The Working Group requests the Government of Guatemala to take the steps

necessary to remedy the situation of Herrera Acevedo without delay and bring it into

conformity with the relevant international norms, including those set out in the Universal

Declaration of Human Rights and the International Covenant on Civil and Political Rights.

59.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Herrera Acevedo immediately and

accord him an enforceable right to compensation and other reparations in accordance with

international law.

60.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Herrera Acevedo, and to take appropriate measures against those responsible for the

violation of his rights.

61.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the independence of judges and lawyers for

appropriate action.

62.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

63.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Herrera Acevedo has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Herrera

Acevedo;

(c)

Whether an investigation has been conducted into the violation of Mr. Herrera

Acevedo’s rights and, if so, the outcome of the investigation;

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(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Guatemala with its international obligations in line with

the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

64.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example through a visit by the Working

Group.

65.

The Working Group requests the source and the Government to provide the

above-mentioned information within six months of the date of transmission of the present

opinion. However, the Working Group reserves the right to take its own action in follow-up

to the opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as of any failure to take action.

66.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.12

[Adopted on 18 November 2022]

12 Human Rights Council resolution 51/8, paras. 6 and 9.