A/HRC/WGAD/2024/7

GE.24-08015 (E) 040624 040624

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-ninth session, 18–27 March 2024

Opinion No. 7/2024, concerning José Rubén Zamora Marroquín

(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 28 November 2023 the Working Group

transmitted to the Government of Guatemala a communication concerning José Rubén

Zamora Marroquín. The Government replied to the communication on 29 January 2024. 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).

* Miriam Estrada Castillo did not participate in the discussion of the case.

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2024/7

General Assembly

Distr.: General

17 May 2024

English

Original: Spanish

A/HRC/WGAD/2024/7

2

GE.24-08015

1.

Submissions

(a)

Communication from the source

4.

José Rubén Zamora Marroquín is a national of Guatemala, born on 19 August 1956.

He is a journalist and the former chief executive of elPeriódico newspaper.

i.

Context

5.

The source states that, in 1996, elPeriódico began publishing articles on cases of

corruption, impunity and abuse of power. Mr. Zamora’s reports and elPeriódico shed light

on hundreds of acts of corruption within the different governments of Guatemala between

2012 and 2023.

6.

Mr. Zamora has been the beneficiary of precautionary measures implemented by the

Inter-American Commission on Human Rights since 2003 in view of the risk to his life and

personal integrity posed by the threats and physical assaults directed at him in the exercise

of his journalistic activities, as well as the backdrop of violence against journalists in

Guatemala.

7.

The context of these attacks has worsened since 2018. Since then, dozens of

prosecutors, judges, journalists and activists have been threatened and criminally prosecuted

by the State. A number of human rights bodies and special procedure mandate holders have

expressed concern about attacks on the independence of judges, prosecutors, and human

rights and anti-corruption officials.2

8.

The specific case against elPeriódico and its team is part of a general pattern of

criminalization targeting prosecutors, journalists and other persons involved in combating

corruption, especially if they have ties with the International Commission against Impunity

in Guatemala, an international body backed by the United Nations that was active in the

country until 2019.

9.

Over the course of 144 weeks of the previous Government’s term of office,

elPeriódico published 144 reports on corruption linked to that administration. Weeks before

Mr. Zamora’s arrest, this newspaper published details of investigations involving persons

close to the then President of Guatemala.

ii.

Arrest and trial proceedings

10.

Mr. Zamora was arrested at his home on 29 July 2022 by members of the National

Civil Police and the Public Prosecution Service. The officers did not produce an arrest

warrant and drove unlicensed vehicles. On that day, the house was searched for more than

six hours, during which time Mr. Zamora and his family did not think that he was going to

be arrested.

11.

During this time, the family members were put under pressure to sign a document.

One family member refused to do so because he believed that the information contained in it

was false, given that they had not permitted the search and had not been informed of the

reasons for it or that Mr. Zamora would be arrested.

12.

The source states that Mr. Zamora was arrested without explanation.

13.

On 29 July 2022, the head of the Office of the Special Prosecutor against Impunity

used social networks to confirm Mr. Zamora’s arrest and state that the arrest warrant had

been issued by a judge presiding over the Seventh Court of First Instance for Criminal

Offences at the request of the Office of the Special Prosecutor against Impunity. In the same

statement, the Office of the Prosecutor clarified that the investigation was confidential.

2 See communication GTM 3/2021, available at

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26291.

See also https://oacnudh.org.gt/2021/07/01/guatemala-los-principales-jueces-sufren-amenazas-y-

deben-ser-protegidos-experto/.

A/HRC/WGAD/2024/7

GE.24-08015

3

14.

On 30 July 2022, the Public Prosecution Service issued a court order confirming the

arrest.

15.

According to the source, the judge who ordered the arrest is on friendly terms with

members of the supervisory board of Fundación contra el Terrorismo in Guatemala. The

lawyer for the Fundación was the complainant’s legal representative and the main witness

for the Public Prosecution Service against Mr. Zamora. The chair of the Fundación and his

lawyer are on the Engel List of the United States of America for obstructing investigations

into corruption in Guatemala.

16.

On 1 August 2022, the arraignment hearing was postponed because the judge had not

received the case file and Mr. Zamora was not transferred to the court. The State did not

initiate the arraignment hearing until five days after the arrest.

17.

On 3 August 2022, the arraignment hearing began. However, the public prosecutor’s

office informed the court that, at 8 a.m., it had launched an investigation into two of

Mr. Zamora’s lawyers. The judge gave Mr. Zamora five minutes to discuss his ongoing

representation with his lawyers, after which Mr. Zamora decided to seek new counsel. The

judge gave him four days to do this and postponed the arraignment hearing to 8 August.

18.

On 8 August 2022, at the arraignment hearing, Mr. Zamora’s third lawyer reported

that some of the evidence presented by the public prosecutor’s office at the hearing had not

been shared with the defence. The source states that, until the hearing was resumed on

9 August, it was reported that the arrest had taken place for the possible commission of the

offences of money-laundering, blackmail and influence peddling. The source adds that

Mr. Zamora’s lawyer reported that the chain of custody had been broken and bank seals had

been concealed and destroyed. However, the judge and, subsequently, the Eighth Trial Court,

ignored the complaint.

19.

The source states that, on 9 August 2022, the Seventh Court ordered Mr. Zamora’s

arrest on the grounds that he might hinder the investigation although it lacked any basis for

concluding this and did not consider less onerous measures. According to the Seventh Court,

Mr. Zamora, being the “boss” of elPeriódico, could obstruct justice by putting pressure on

his employees with a view to influencing their testimonies. According to the source, there

were no allegations of any past or present behaviour that would give weight to the suggestion

that Mr. Zamora was likely to interfere with witnesses. Furthermore, no evidence of similar

pressure being applied was put forward and no consideration was given to the defence’s

request for the court to take into account factors such as the low level of dangerousness of

the offence, Mr. Zamora’s age (65 years at the time of his arrest), the absence of any criminal

record, and his cooperation at all stages of the proceedings.

20.

The case against Mr. Zamora was initiated by a complaint submitted by a former

banker on 26 July 2022. The former banker has been investigated for money-laundering and

other alleged offences. Days before the arrest, the former banker had requested the Office of

the Special Prosecutor against Impunity to release around US$ 4 million that it had frozen in

connection with an earlier case of corruption. According to the source, a prosecutor attached

to the Public Prosecution Service had asked the former banker for 15 per cent of the total

amount and to report on people who caused trouble for the regime.

21.

According to the source, the former banker claimed that Mr. Zamora had asked him

to launder 300,000 quetzales (Q) in cash, and that he “assumed” that Mr. Zamora “had

blackmailed third parties to obtain the money”. However, there was no evidence that

Mr. Zamora had spoken to anyone in order to blackmail him or her and no person whom he

might have blackmailed has been identified. According to the Public Prosecution Service,

Mr. Zamora blackmailed people by using information about the Service’s cases that he had

obtained unlawfully, negotiating with an assistant prosecutor of the Office of the Special

Prosecutor against Impunity to obtain procedural benefits for the persons being blackmailed.

The assistant prosecutor was arrested on 29 July 2022 and acquitted on 14 June 2023 since it

was not proven that she had leaked information to Mr. Zamora.

22.

Mr. Zamora claimed that he had obtained the cash from the sale of a work of art to

businessmen who did not want to be publicly identified as the Government persecute persons

who fund independent journalism. Fearing possible reprisals from the Government, and

A/HRC/WGAD/2024/7

4

GE.24-08015

wishing to conceal the identities of those who had supported him, Mr. Zamora offered the

cash to the former banker, with whom he had a long-standing business relationship, on the

condition that he would send a cheque for the same amount to the company that managed

elPeriódico.

23.

The source states that the Seventh Court excluded all evidence that showed the lawful

origin of the funds; refused to admit the witnesses proposed by the defence, namely, the

person who had bought the work of art and given the cash to Mr. Zamora; refused to admit

the contract for the sale of the work of art that was the source of the money; and omitted the

report relating to the breach of the chain of custody caused by the disappearance of the bank

seals. In addition, the Public Prosecution Service rejected Mr. Zamora’s request for the bank

seals to be investigated. Consequently, the public prosecutor’s office used the autonomous

nature of the offence of money-laundering to state that it did not need a conviction for an

offence relating to the source of the money: since Mr. Zamora had not demonstrated the licit

origin of the funds, they must be illicit.

24.

On 12 August 2022, Mr. Zamora submitted an appeal against the order for his pretrial

detention. However, this was declared inadmissible on 25 August 2022.

25.

Prior to the trial, Mr. Zamora’s third lawyer left the country for personal reasons. He

is facing threats and has learned that pressure is being put on the Bar Association to revoke

his license to practise in Guatemala.

26.

On 22 October 2022, a fourth lawyer assumed Mr. Zamora’s defence.

27.

During the hearing held on 8 December 2022, the public prosecutor threatened to

bring criminal proceedings against a witness and the defence lawyer. On 14 December, the

defence lawyer posted the following tweet: “Today I was informed that the Seventh Court’s

complaint against me has been filed with the Public Prosecution Service. The reason given

is that I am defending Chepe Zamora”.

28.

At the evidentiary hearing on 22 December 2022, the Seventh Court declared all the

evidence exculpating Mr. Zamora to be inadmissible. In response, Mr. Zamora filed a request

for review. The court also disallowed the witness who gave the cash to Mr. Zamora, with

bank seals from Banco Industrial. Criminal proceedings were brought against him and the

other witnesses for Mr. Zamora and, in order to avoid going to prison, they accepted the

charges. The lawyer objected to the fact that the court prevented the investigation of the

witness for the prosecution, while ordering an investigation into the witnesses for

Mr. Zamora. He also objected to the fact that the Seventh Court refused to admit expert

testimonies but accepted the expert reports drawn up by them, thus making it impossible for

the expert to be questioned about his reports.

29.

The defence requested alternative measures to deprivation of liberty on 8 and

22 December 2022.

30.

On 19 January 2023, warrants for the arrest of Mr. Zamora’s first two lawyers were

issued on the basis of the investigation launched by the public prosecutor’s office on 3 August

2022. The first lawyer was arrested on the same day. Mr. Zamora’s fourth and fifth lawyers

left his defence team as there were criminal proceedings against them and, on 20 April 2023,

they were arrested. On 25 April, Mr. Zamora’s second lawyer turned himself in and accepted

the charge of conspiring to obstruct justice. He was sentenced to 6 years’ imprisonment, but

his sentence was reduced to 3 years and the remainder of the sentence was commuted to a

fine.

31.

On 2 May 2023, the trial of Mr. Zamora – who was represented by his sixth and

seventh lawyers – began. The following day, when an expert report was presented, his

seventh lawyer stated that she had not been aware of any expert report and did not know

much about the case file, explaining that she had not requested an adjournment out of respect

for the court’s schedule. On 9 May, the sixth lawyer withdrew from the defence team, stating

that he had health problems and that his withdrawal had been recommended by his doctor.

On 11 May, at the end of the hearing, Mr. Zamora requested that the court assign him a

lawyer (his eighth) from the Public Criminal Defence Institute since, for personal and

financial reasons, he could not continue with his seventh lawyer.

A/HRC/WGAD/2024/7

GE.24-08015

5

32.

On 15 May 2023, elPeriódico shut down for good, after having shut down its print

version in December 2022 and laying off most of its staff. In explanation of the decision to

shut it down completely, its directors cited “persecution” and “harassment directed at its

advertisers”, which made it increasingly difficult to maintain operations.

33.

On the same date, the Eighth Trial Court appointed the eighth lawyer, who was

accused of influence peddling.

34.

On 17 May 2023, one day before the resumption of the trial hearing, the Public

Criminal Defence Institute appointed a ninth lawyer to replace the previous one, without

Mr. Zamora being notified.

35.

On 18 May 2023, Mr. Zamora’s ninth lawyer did not show up at the hearing, so

Mr. Zamora met his new lawyer (the tenth) at the hearing itself, minutes before he took over

Mr. Zamora’s defence in the middle of the oral proceedings. Mr. Zamora asked the Court

whether the eighth lawyer could represent him again but was told that decisions relating to

the appointment of public defenders were taken by the Public Criminal Defence Institute as

an independent institution.

36.

The tenth lawyer did not have time to prepare a strategy or to read more than 250 pages

of the case file. That day – 18 May 2023 – was the key date of the trial since the complainant

and main witness for the Public Prosecution Service against Mr. Zamora was to be

questioned. Therefore, Mr. Zamora asked the lawyer to request an adjournment, but he did

not do so.

37.

According to the source, on 22 May 2023, Mr. Zamora’s tenth lawyer stated that he

did not have access to evidence that previous lawyers may have intended to present at the

trial because he had no contact with his predecessors.

38.

On 30 May 2023, when the trial hearing resumed, the representative of the Public

Prosecution Service requested a sentence of 40 years’ imprisonment for Mr. Zamora.

39.

At the oral hearing in June 2023, Mr. Zamora had his final opportunity to address the

court prior to the sentencing. In his final statement, he referred to the irregularities and

violations of his rights that had occurred during the trial. However, the prosecutor interrupted

him and asked the court to call him to order.

40.

The source states that, on 14 June 2023, the Court acquitted Mr. Zamora of the

offences of blackmail and influence peddling. However, it sentenced him to 6 years’

imprisonment for the offence of money-laundering on the basis of an inference, without

determining what offence or illicit act had given rise to the money. The source points out

that, in accordance with the principle of the presumption of innocence, the burden of proving

beyond reasonable doubt that the money came from the commission of an offence rests on

the Public Prosecution Service, especially when the court had disallowed or omitted evidence

that would have proved that cash had been used so that the buyer of the work would not be

subjected to political persecution for helping elPeriódico, given that Mr. Zamora’s witnesses

had been subjected to reprisals for testifying on his behalf.

41.

The source claims that the State has allowed Fundación contra el Terrorismo, together

with the Public Prosecution Service, to criminalize anyone providing professional services to

Mr. Zamora, making it difficult for Mr. Zamora’s family to find lawyers.

42.

The Public Prosecution Service and the Counsel General’s Office called for

Mr. Zamora to be sentenced to 40 years’ imprisonment. Mr. Zamora filed an appeal

requesting that he be acquitted of the offence of money-laundering as well. As the appeals

are pending, Mr. Zamora remains in pretrial detention.

43.

The source notes that the Office of the United Nations High Commissioner for Human

Rights (OHCHR) has observed violations of due process in this case, involving the right to

information on the nature of the charges, to a trial without undue delay, to a defence, to a

public trial by an independent and impartial tribunal and to the presumption of innocence.3

3 A/HRC/52/23, para. 88.

A/HRC/WGAD/2024/7

6

GE.24-08015

iii.

Legal analysis

44.

In the opinion of the source, Mr. Zamora’s detention is arbitrary under categories I,

II, III and V.

a.

Category I

45.

Pretrial detention must be exceptional in nature and be limited by the principles of

legality, presumption of innocence, necessity and proportionality. According to the source,

the use of pretrial detention in this case is not in compliance with Guatemalan law and shows

that the State did not take into account other factors to assess whether imprisonment should

be applied, such as the low level of dangerousness of the offence, the defendant’s age, or the

fact that he had no criminal record and was willing to cooperate at all times with the

investigations of the public prosecutor’s office. Mr. Zamora has spent more than a year in

pretrial detention, which shows that excessive use is being made of this measure.

46.

The source believes that Mr. Zamora has been criminally prosecuted for exercising

his freedom of expression. The source cites a statement made after the conviction by the

Chief of the Office of the Special Prosecutor against Impunity, according to which “Zamora

ran a media outlet (elPeriódico) through which the honour and prestige of prosecutors,

judges, magistrates and various members of civil society were denigrated and insulted”.4

47.

It also notes that the State did not inform Mr. Zamora or his lawyers of the reasons for

the issuance of the arrest and search warrant until 9 August 2022, in contravention of

articles 9 (2) and 14 (3) (a) of the Covenant.

b.

Category II

48.

The source claims that Mr. Zamora has been deprived of his liberty for exercising the

freedoms guaranteed by article 19 of the Universal Declaration of Human Rights and

article 19 of the Covenant. It believes that the purpose of Mr. Zamora’s imprisonment is to

silence and punish him for the reports on corruption published in elPeriódico. Furthermore,

the case was used to financially suffocate the newspaper, which was definitively shut down

on 15 May 2023. Criminal proceedings have been brought against other journalists,

columnists and administrative staff.

c.

Category III

49.

The source argues that Mr. Zamora’s right to be assisted by counsel (Covenant,

art. 14 (3) (d)) was violated, given that, to date, four of his lawyers have been convicted and

six have had criminal proceedings brought against them. Furthermore, on the day when the

main witness and complainant against Mr. Zamora was to be questioned, Mr. Zamora found

that his public defender had been changed. The eighth lawyer was not removed because

Mr. Zamora dismissed her or because she resigned but because Fundación contra el

Terrorismo had initiated a campaign against her and announced that it would report her to

the Public Criminal Defence Institute. In addition, a complaint of “influence peddling” was

brought against her.

50.

The source states that, in the present case, the right to a defence (Covenant,

art. 14 (3) (b)) was not observed since the Eighth Court granted only a few minutes for the

tenth defence lawyer to join the proceedings, meet Mr. Zamora, read more than 250 pages of

the case file, agree on a strategy with the defendant, and prepare a strategy for questioning

the complainant and main witness for the prosecution. In his concluding remarks at the trial,

before the sentence was handed down, Mr. Zamora stated that he had had no more than

20 minutes in which to speak with his lawyer. In addition, his lawyers were not given

immediate access to the evidence.

51.

The source considers that this violated the right to examine witnesses or have them

examined (Covenant, art. 14 (3) (e)).

4 Jose Zamora (@jczamora), available at: https://twitter.com/i/status/1670838184501035018.

A/HRC/WGAD/2024/7

GE.24-08015

7

52.

The source argues that, in violation of article 14 (3) (b) and (e) of the Covenant, the

right to due process was violated in that the Seventh Court disallowed evidence proving the

lawful origin of the money and also rejected the request for review of the decision to disallow

the evidence. It also disallowed the contract relating to the source of the money and the

testimony of the person who handed over the money, among other evidence.

53.

The source alleges that the right to an impartial tribunal (Universal Declaration of

Human Rights, art. 10, and the Covenant, art. 14 (1)) was violated because: (a) friendly

relations, or signs of such relations, existed between the prosecutor, the Seventh Judge, the

Counsel General’s Office and the body associating itself with the prosecution (Fundación

contra el Terrorismo); (b) the Seventh Judge allowed the lawyer for Fundación contra el

Terrorismo, who was representing the plaintiff and complainant, to act disrespectfully

towards Mr. Zamora; (c) the Seventh Court approved the criminalization of Mr. Zamora’s

lawyers; and (d) the Eighth Court interrupted Mr. Zamora, ordered him to conclude his

speech and rejected his written conclusions and motions.

54.

The right to the presumption of innocence (Covenant, art. 14 (2)) was violated since

the conviction handed down by the Eighth Trial Court was based on an inference.

55.

The source alleges that the right to a trial without undue delay (Covenant, arts. 9 (3)

and 14 (3) (c)) was also violated owing to the delay in starting the arraignment hearing, in

that the 24-hour time limit established in Guatemalan law for bringing a person detained for

the first time before the procedural courts was exceeded, and there were undue delays in

processing the oral applications filed by Mr. Zamora’s defence to obtain his release.

d.

Category V

56.

According to the source, Mr. Zamora’s deprivation of liberty constitutes

discrimination on the basis of his political opinions. The source states that independent

investigative journalists who uncover cases of corruption have been seen by the State as

enemies, as have other judges, prosecutors, activists and justice officials in general.

57.

It also states that Mr. Zamora’s detention is a form of reprisal, or a way of silencing

his voice and intimidating the press, and that it involves a violation of article 26 of the

Covenant since he has not been allowed to practice journalism under equal conditions.

(b)

Response from the Government

58.

The Working Group, in accordance with its methods of work, transmitted the source’s

allegations to the Government on 28 November 2023, and requested it to submit a response

by 29 January 2024.

59.

In its response of 29 January 2024, the Government states that, on 26 July 2022, the

Office of the Special Prosecutor against Impunity received a criminal report implicating

Mr. Zamora in a money-laundering operation. According to the Government, the

complainant explained that he knew the defendant (Mr. Zamora) in connection with a

blackmail that had occurred in 2004 and 2005 and the criminal report was based on a request

for assistance with “money-laundering” that Mr. Zamora had sent to the complainant on

19 July 2022. This assistance would consist of the complainant receiving the money (initially

Q 100,000) and writing a cheque for Mr. Zamora to deposit in one of his company’s accounts

so as not to arouse any suspicion about the origins of the money.

60.

The complainant did not know where the money came from but it was clear to him

that it came from blackmail since, in his opinion, Mr. Zamora obtained the money to support

himself and the media outlet that he managed from media campaigns based on smears and

blackmail. According to the Government, the complainant stated that he was certain that

Mr. Zamora obtained confidential information on cases from the Public Prosecution Service

and from persons collaborating with the former Chief of the Office of the Public Prosecutor

against Impunity.

61.

At the time of the facts, the complainant was linked to proceedings relating to a case

in which, according to a then ongoing investigation, the assistant prosecutor was reporting

directly to the aforementioned former Chief of the Office of the Public Prosecutor against

A/HRC/WGAD/2024/7

8

GE.24-08015

Impunity. Among other offences, the complainant was linked to a trial for money-laundering,

which is why he did not want to get involved in events that could worsen his legal situation.

62.

According to the Government, on 28 July 2022, the complainant contacted the public

prosecutor’s office again to inform it that Mr. Zamora was insisting that he help him launder

the money, which now amounted to Q 300,000 in cash, and which Mr. Zamora intended to

illicitly introduce into the national financial system. The complainant reported that, in order

to collaborate with the investigation into the alleged facts, he told Mr. Zamora that he would

agree to his request. On the same day, a person designated by the complainant met with two

persons sent by Mr. Zamora and a cheque was handed over to make Mr. Zamora believe that

the complainant would help him commit the offence of money-laundering. The money was

placed at the disposal of the investigating agency and was documented by the public

prosecutor’s office.

63.

The Government points out that an automatic system assigned responsibility for the

oversight of the investigation to the Seventh Court. On 29 July 2022, a warrant for

Mr. Zamora’s arrest for the offences of laundering money or other assets, influence peddling

and blackmail was requested, as were warrants to search and inspect properties. The warrants

were executed that same day and were used to gather evidence.

64.

The Government states that, among the search procedures carried out, the court

authorization for the search was shown to the residents and a record was drawn up and signed

by all those present to indicate their agreement. It also specifies that residents are informed

about searches but their permission is not required. The Government states that, as the

National Police was in possession of a warrant for a person’s arrest, they informed that person

and referred him to a supervising judge, safeguarding constitutional guarantees, so that the

judge could inform Mr. Zamora of the reasons for his arrest.

65.

The State reports that, on 30 July 2022, the Collegiate Criminal Court of First Instance

for Drug Trafficking and Environmental Offences informed Mr. Zamora of the ground for

his arrest. The following day, an order stating that the case file should not be forwarded to

the Court was issued since the investigation was completely confidential. However, in line

with the principle of maximum disclosure, transparency and orality, the confidentiality of the

investigation was lifted for the hearings.

66.

With regard to the start of the arraignment hearing, on 3 August 2022, it was reported

that there was an audio recording, submitted by the complainant, that featured several people

who might be the subject of an investigation and that there could be a conflict of interest that

might involve the defence lawyers. After Mr. Zamora was informed of this, he stated that he

did not wish to continue with these defence lawyers. The Government confirms that the first

two lawyers accepted the charges and that a final judgment against them has been handed

down.

67.

The Government affirms that the arraignment hearing ended on 9 August 2022 and

that, in the course of the hearing, Mr. Zamora had stated that he had asked the complainant

to undertake certain transactions involving the Q 300,000 in cash so that he could make use

of the money; that he was indeed friends with the former head of the Office of the Special

Prosecutor against Impunity, and that he had other “sources of information” within the Public

Prosecution Service. The Government states that Mr. Zamora mentioned the name of

businessmen and companies that had given him money but wished to conceal their identities,

which is why he uses the method under investigation to dispose of the funds. Furthermore,

Mr. Zamora said that he did not deny that his voice could be heard in the audio recordings,

that the money he intended to introduce into the national financial system was a donation

from a friend who was a keen supporter of elPeriódico, and that his donor friends would have

shortly made a declaration in this respect.

68.

The Government points out that, during the entire trial, Mr. Zamora’s defence did not

propose any witness to testify about the source of the cash. It adds that the money, considered

as evidence, will be subject to the procedure for the termination of ownership since, despite

his having been notified, Mr. Zamora did not submit any documentation proving its origin,

ownership or legality.

A/HRC/WGAD/2024/7

GE.24-08015

9

69.

The Government states that, on 9 August 2022, an indictment and a pretrial detention

order were issued against Mr. Zamora as the possibility that he might pose a risk of flight or

obstruction of the search for the truth had not been ruled out. According to the Government,

the offences with which he was charged established a procedural risk and justified the use of

pretrial detention. It confirms that the appeal submitted by the defence was dismissed.

70.

The Government states that, on 8 December 2022, the charges were accepted and the

Public Prosecution Service requested the opening of the trial for the offences of blackmail,

laundering of money or other assets and influence peddling. The Eighth Criminal Trial Court

for Drug Trafficking and Environmental Offences was designated by lot. It also states that

the conviction for money-laundering was handed down by a collegiate court (and not by the

supervising judge) and that the offence for which this conviction was secured is not related

to Mr. Zamora’s profession.

(c)

Additional comments from the source

71.

The Working Group transmitted the Government’s response to the source on

30 January 2024 and requested any final comments and observations, which were received

on 5 February 2024.

72.

The source points out that the argument justifying the use of pretrial detention is no

longer valid as the employee-employer relationship that hindered the search for the truth has

not existed since 15 May 2023 (the date of the definitive closing of elPeriódico) and the risk

of flight has not been analysed or contested by a judgment of the Appeal Court. The source

states that Mr. Zamora has requested a review of his arbitrary detention on three occasions,

most recently on 16 January 2024 before the Criminal Chamber, and that this last request is

pending a decision.

73.

The source affirms that the complainant’s claims concerning the alleged “blackmail

that took place in 2004 or 2005” are not substantiated.

74.

The source denies that Mr. Zamora approached the complainant with the aim of

laundering money or illicitly introducing it into the financial system. It also states that it is

false that Mr. Zamora used his relationship with the former Chief of the Office of the Special

Prosecutor against Impunity to obtain information with which to extort and blackmail people

and points out that there is no information on the people who were allegedly blackmailed.

75.

According to the source, the Government refers to information about other cases to

which Mr. Zamora has not had access, or which was cited during his trial, that reveal the bias

of the complainant witness. However, it has been reported that the complainant witness has,

or had, millions of dollars frozen in connection with an investigation conducted by the Public

Prosecution Service and that he was negotiating on the basis that he would file a complaint

about Mr. Zamora, which the Government has not contradicted in its comments.

76.

With regard to the search, the source rejects the claim that the Public Prosecution

Service showed the aforementioned court authorization for the procedure to the residents and

points out that, at the time of writing, there is no copy of the order in the case file.

77.

According to the source, it is false that, on 30 July 2022, the Collegiate Criminal Court

of First Instance for Drug Trafficking and Environmental Offences informed Mr. Zamora of

the reasons for his arrest as it did not do so until 9 August.

2.

Discussion

78.

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

79.

In determining whether Mr. Zamora’s deprivation of liberty is arbitrary, the Working

Group has regard to the principles established in its jurisprudence to deal with evidentiary

issues. If the source has established a prima facie case for breach of international law

constituting arbitrary detention, the burden of proof should be understood to rest upon the

A/HRC/WGAD/2024/7

10

GE.24-08015

Government if it wishes to refute the allegations. Mere assertions that lawful procedures have

been followed are not sufficient to rebut the source’s allegations.5

(a)

Category I

80.

The source claims that, on 29 July 2022, Mr. Zamora was arrested at his home without

a warrant and that he was not informed of the reasons for his arrest until 10 days later. During

the search that accompanied his arrest, the residents were shown a document – a record of

the procedure – and pressure was put on them to sign it. A family member opted not to sign

it because he considered the information contained in it to be false.

81.

The Government disputes this assertion, arguing that a warrant was issued and that

when police officers have a warrant for a person’s arrest, that person is informed and given

a copy, in accordance with national law. The Government explains that the Collegiate

Criminal Court of First Instance for Drug Trafficking and Environmental Offences informed

Mr. Zamora of the reasons for his arrest on 30 July 2022.

82.

The source reiterates in its additional comments that Mr. Zamora was not informed of

the reasons for his arrest until 9 August 2022, when he first appeared before a judge.

83.

Under article 9 (1) of the Covenant, no one may be deprived of his or her liberty except

on such grounds and in accordance with such procedure as are established by law.

Article 9 (2) of the Covenant provides that anyone who is arrested must be informed, at the

time of arrest, of the reasons for his or her arrest and must be promptly informed of any

charges against him or her. An arrest requires legal authorization to be lawful. The Working

Group has established that the authorities must invoke the legal basis and apply it to the

circumstances of the case. This is typically done through an arrest warrant or a court order,

or an equivalent document.6 The issuance of an arrest warrant serves two purposes: to ensure

that the arrest has a legal basis (Covenant, art. 9 (1)) and to ensure that the arrested person is

informed, at the same time, of the reasons for his or her arrest (art. 9 (2)).

84.

The Working Group notes that the source and the Government disagree as to whether

Mr. Zamora was arrested pursuant to a duly issued arrest warrant and as to whether the

warrant was shown to him at the appropriate time. After considering the materials provided,

the Working Group notes the Government’s claim that a court authorization for the procedure

carried out on 29 July 2022 was shown during the search of Mr. Zamora’s home. However,

it states that he was informed of the reasons for the arrest on 30 July. According to the

Government’s claims, on 29 July it was already in possession of an arrest warrant that set out

the reasons for the arrest. However, the Government does not explain whether the document

shown to Mr. Zamora during the arrest contained this detail. Given that the Government

claims that Mr. Zamora was informed of the reasons for the arrest the following day, the

Working Group concludes that he was not shown the arrest warrant on 29 July 2022 and is

therefore not persuaded that the authorities showed him an arrest warrant or otherwise

informed him of the reasons for the arrest at the time of the arrest. Consequently, there was

a violation of article 9 (1) and (2) of the Covenant.

85.

The source claims that the arraignment hearing was supposed to be held on 1 August

2022 but was delayed until 3 August 2022 because the judge did not receive the case file and

Mr. Zamora was not transferred to the court. On the morning of 3 August, Mr. Zamora was

informed that his lawyers were being investigated, which is why, at the time, he requested to

postpone the arraignment hearing until 8 August. Mr. Zamora was first brought before a

judicial authority on 3 August, four days after his arrest. However, he was not actually heard

until 8 August. The Government argues that, during the arraignment hearing on 3 August,

the complainant submitted an audio recording featuring the voices of several persons who

could later have been subject to investigation, and that when Mr. Zamora was informed of

this, he opted to reschedule the hearing.

86.

According to article 9 (3) of the Covenant, anyone arrested or detained on a criminal

charge must be brought promptly before a judge. As the Human Rights Committee has

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

6 Opinion No. 4/2023, para. 64.

A/HRC/WGAD/2024/7

GE.24-08015

11

established, 48 hours is ordinarily sufficient to satisfy the requirement to bring a detainee

“promptly” before a judge after arrest and any longer delay must remain absolutely

exceptional and be justified under the circumstances.7

87.

The Working Group has assessed the arguments of the source and the Government

and concludes that Mr. Zamora was not brought promptly before a judge within 48 hours of

his arrest. The Government has not commented on this delay and instead refers to delays

subsequent to the hearing of 3 August 2022 that relate to a recording. In this regard, the

Working Group considers that, although Mr. Zamora requested a postponement on 3 August,

he had already been detained for four days without being brought before a judge and the

Government has not provided sufficient explanation for this delay. Therefore, the authorities

violated article 9 of the Universal Declaration of Human Rights and article 9 (1) and (3) of

the Covenant.

88.

The source states that, on 9 August 2022, the Seventh Court ordered Mr. Zamora to

be remanded in custody because there was a risk of obstruction of justice. According to the

source, the public prosecutor’s office failed to explain how Mr. Zamora might pose a risk to

the investigation or why it did not consider less burdensome measures. The source claims

that the public prosecutor’s office based its request relating to the risk of obstruction of justice

solely on the fact that Mr. Zamora was the chief executive of elPeriódico and that he might

interfere with witness testimony. However, the public prosecutor’s office did not submit any

evidence of Mr. Zamora’s tendency to interfere with justice. In the Government’s response,

it states that Mr. Zamora was ordered to be remanded in custody for reasons relating to the

obstruction of justice and the risk of flight.

89.

It is an established norm of international law that pretrial detention should be the

exception, rather than the rule, and should be ordered for the shortest possible time. 8

Article 9 (3) of the Covenant establishes that it should not be the general rule that persons

awaiting trial should be detained, but their release may be subject to guarantees to appear for

trial or at any other stage of the judicial proceedings. It follows that, in the interests of justice,

liberty should be recognized as a principle, and detention as an exception. Detention pending

trial must be based on an individualized determination that it is reasonable and necessary, in

the light of all the circumstances, for such purposes as to prevent flight, interference with

evidence, or the recurrence of the offence. 9 In addition, the courts should consider

alternatives and, after an initial determination has been made that pretrial detention is

necessary, there should be periodic reexamination of whether it continues to be reasonable

and necessary.10

90.

The Working Group notes that Mr. Zamora has spent more than one year in pretrial

detention. While the Government has referred to the risks of flight and the obstruction of

justice, it has not stated how the Court of Appeal’s decision on the appeal indicated that a

risk of flight existed. Furthermore, the Government has not informed the Working Group

how Mr. Zamora posed a direct and imperative threat to the conduct of the investigation at

the time of his arrest and how this threat persisted during his detention. The Government

referred to the risk that Mr. Zamora might use the resources of elPeriódico to obstruct justice

but, if this was the case, Mr. Zamora should have been released no later than 15 May 2023,

when elPeriódico closed.

91.

The Working Group concludes that multiple violations of article 9 of the Covenant

and article 9 of the Universal Declaration of Human Rights were committed against

Mr. Zamora and that his detention is therefore arbitrary under category I.

(b)

Category II

92.

The source argues that, while Mr. Zamora’s arrest and detention are ostensibly related

to money-laundering, blackmail and influence peddling, they actually stem from the

7 General comment No. 35 (2014), para. 33.

8 Opinion No. 8/2020, para. 54; Human Rights Committee, general comment No. 35 (2014), para. 38;

and A/HRC/19/57, paras. 48–58.

9 Cedeño v. Bolivarian Republic of Venezuela, (CCPR/C/106/D/1940/2010), para. 7.10.

10 General comment No. 35 (2014), para. 38.

A/HRC/WGAD/2024/7

12

GE.24-08015

legitimate exercise of his fundamental rights under articles 19 of the Covenant and the

Universal Declaration of Human Rights and are a form of retaliation for his publications on

cases of corruption in elPeriódico (see para. 46).

93.

The Government argues in its response that Mr. Zamora was not arrested for

exercising his human rights and that the offence for which he was convicted is not related to

his profession and therefore does not fall under category II.

94.

Article 19 (1) of the Covenant establishes that all forms of opinion are protected,

including opinions of a political, scientific, historical, moral or religious nature. Article 19 (2)

of the Covenant provides that everyone has the right to freedom of expression. This right

includes the freedom to seek, receive and impart information and ideas of all kinds, regardless

of frontiers, and covers, among other things, political discourse, commentary on public

affairs, discussion of human rights and journalism.11 The right to freedom of expression

protects the holding and expression of opinions, including those that are critical of, or not in

line with, government policy.12

95.

The Working Group considers that Mr. Zamora’s publications on cases of corruption,

which appeared in elPeriódico, fall within the boundaries of the exercise of the right to

freedom of expression protected by article 19 of the Universal Declaration of Human Rights

and article 19 of the Covenant.

96.

The Working Group recalls that, five days before the arrest, elPeriódico published

reports alleging instances of serious corruption within the Government of the then President

of the country and other high-ranking officials linked to his administration. As of September

2022, 144 complaints of corruption had been filed in the 144 weeks during which the

Government had been in power.

97.

After reviewing the material, the Working Group considers that the Government’s

response lacks sufficient detail and substantiation and does not refute the source’s arguments.

Consequently, the Working Group concludes that Mr. Zamora’s detention, which, to date,

remains pretrial, resulted from the exercise of his freedom of expression and opinion (through

the press). Mr. Zamora’s comments have not been shown to constitute incitement to violence

or to justify his detention.

98.

On that basis, the Working Group concludes that Mr. Zamora’s arrest and detention

resulted from the exercise of the rights and freedoms guaranteed by articles 19 of the

Universal Declaration of Human Rights and the Covenant, and therefore fall under

category II. The Working Group refers the present case to the Special Rapporteur on the

promotion and protection of the right to freedom of opinion and expression, for appropriate

action.

(c)

Category III

99.

Given its finding that Mr. Zamora’s detention was arbitrary under category II, the

Working Group considers that no trial should be held. However, given that criminal

proceedings have been taken against him and considering the allegations of the source, the

Working Group will proceed to determine whether fundamental elements of a fair,

independent and impartial trial have been respected in the course of the ongoing judicial

proceedings.

100.

The source states that Mr. Zamora was deprived of his right to legal counsel. It claims

that, to date, four of his lawyers have been convicted and the other six have been charged

with criminal conduct. Mr. Zamora was assisted by 10 lawyers over the course of 11 months

between the day of his arrest, on 29 August 2022, and the day of his final address to the court,

on 14 June 2023. The various lawyers claimed that they did not have prompt access to some

of the documents.

101.

The Government does not dispute this claim in its response. However, it states that it

was Mr. Zamora’s decision to change his first two lawyers at the start of the arraignment

11 Human Rights Committee, general comment No. 34 (2011), para. 11;

12 Opinion No. 79/2017, para. 55.

A/HRC/WGAD/2024/7

GE.24-08015

13

hearing and that they subsequently accepted the charges against them. However, it does not

respond directly to the source’s allegations about the reasons why he replaced his lawyers

and does not provide reasons for the restrictions on timely access to evidence or for the

changes that, according to the source, Mr. Zamora was required to make to his defence.

102.

Under article 14 (3) (d) of the Covenant, persons have the right to defend themselves

in person or through legal assistance of their own choosing, or through free legal assistance

assigned to them when they do not have sufficient means to pay for it, in line with

principles 17 and 18 of the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment. Accordingly, States should allow and facilitate access

to a lawyer (in principle, a lawyer of their choosing) for persons detained in connection with

criminal proceedings from the outset of their detention.13 Legal counsel should be able to

carry out their functions effectively and independently, free from fear of reprisal,

interference, intimidation, hindrance or harassment.14

103.

The Working Group is concerned about the pattern of investigating and criminalizing

Mr. Zamora’s lawyers, which was not refuted by the Government. Throughout the

proceedings, Mr. Zamora had 10 lawyers, four of whom were investigated and arrested (see

paras. 30–37). The result of this succession of short-term appointments was that each lawyer

had less and less time in which to examine the case. Although Mr. Zamora had access to a

lawyer from the outset of his criminal case, his exercise of this right was hampered by the

multiple changes in his legal representation, resulting, at least in part, from the repeated

investigations against his appointed lawyers. This constitutes a violation of the right to legal

counsel enshrined in article 14 (3) (d) of the Covenant. The Working Group refers this case

to the Special Rapporteur on the independence of judges and lawyers.

104.

Under article 14 (3) (b) of the Covenant, all persons deprived of their liberty are

entitled to have adequate time and facilities for the preparation of their defence and to

communicate with counsel of their own choosing. Adequate facilities should include access

to relevant documents and evidence, especially all materials that the prosecution plans to

offer in court against the accused or that are exculpatory.15 The right to communicate with

counsel requires that the accused is granted prompt access to counsel.16

105.

In view of the information provided, the Working Group cannot but accept the version

of the facts provided by the source. It therefore finds that Mr. Zamora’s right to adequate

time and facilities to prepare his defence and communicate with his lawyer, as guaranteed by

article 14 (3) (b) of the Covenant, was not granted.

106.

The source also claims that Mr. Zamora was unable to present evidence and witnesses

relevant to his defence. Mr. Zamora was convicted in the first instance of money-laundering

and this conviction appears to be based on his inability to prove the lawful origins of the

money, which was allegedly intended to be laundered. It is not for the Working Group to

evaluate the facts and evidence in a particular case or to substitute itself for domestic appellate

tribunals.17

107.

According to the source, however, the Court excluded any evidence that could prove

the lawful origin of the funds. Mr. Zamora wanted to call as a witness the person who brought

the work, as a way of collaborating with elPeriódico, and the person who handed over the

money. Mr. Zamora wanted to show the contract for the sale of the work from which the

money originated. Lastly, Mr. Zamora requested an investigation into the breaking of the

bank seals protecting the money. The Seventh Court declared these testimonies and the

investigation of the bank seals to be inadmissible. The Government states in its response that

Mr. Zamora’s defence did not propose witnesses and that no documentation proving the

lawfulness of the money was presented.

13 Human Rights Committee, general comment No. 35 (2014), paras. 34 and 35.

14 A/HRC/30/37, annex, principle 9; A/HRC/45/16, para. 54; Basic Principles on the Role of Lawyers,

para. 16; and Opinion No. 70/2021, para. 94.

15 Human Rights Committee, general comment No. 32 (2007), para. 33.

16 Ibid., para. 34.

17 Fact Sheet No. 26. Available at:

https://www.ohchr.org/sites/default/files/Documents/Publications/FactSheet26en.pdf.

A/HRC/WGAD/2024/7

14

GE.24-08015

108.

First and foremost, the discrepancy between the source’s and the Government’s

accounts of whether Mr. Zamora’s defence was able to present evidence and witnesses

relevant to the defence is troubling. After reviewing the information, the Working Group

notes that the source’s complaints are detailed and consistent, while the Government does

not address some of the source’s arguments in detail. The Working Group accepts the detailed

information provided by the source.

109.

The notion of equality of arms is an essential characteristic of a fair trial and is an

expression of the balance that must exist between the prosecution and the defence.18 On the

basis of this principle, there is a strict obligation to respect the right to have witnesses

admitted that are relevant for the defence and to be given sufficient opportunity to question

and challenge witnesses against them at some stage of the proceedings. 19 It does not,

however, provide an unlimited right to obtain the attendance of any witness requested by the

accused or their counsel, but only the right to have witnesses admitted who are relevant for

the defence.

110.

On the basis of the materials provided, the Working Group accepts the source’s

version and maintains that Mr. Zamora’s defence was not granted equality of arms in respect

of the right to have relevant witnesses admitted. The Working Group concludes that there has

been a violation of article 14 (1) and (3) (e) of the Covenant.

111.

The Working Group notes the source’s concern about the ability of Mr. Zamora’s

defence to question witnesses against him at some stage of the proceedings. The Government

did not provide information in this regard, and the Working Group therefore concludes that

Mr. Zamora’s right to equality of arms and adversarial proceedings was not respected.

112.

Furthermore, according to the source, the Eighth Court violated the presumption of

innocence by sentencing Mr. Zamora to 6 years’ imprisonment on the basis of an inference

when the origin or provenance of the money has not been proven and the evidence proposed

by the source was considered inadmissible. On the contrary, the Government claims that the

evidence presented during the oral public hearing was sufficient to prove the offence.

113.

As established by the Human Rights Committee, the presumption of innocence

imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be

presumed until the charge has been proved beyond reasonable doubt and ensures that the

accused has the benefit of doubt.20

114.

The source’s claim that the conviction was based on an inference has not been

sufficiently addressed by the Government. The inference raises concerns, especially in view

of the fact that Mr. Zamora was found not guilty of influence peddling or blackmail, i.e., the

offences relating to the unlawful origin of the money.

115.

However, the Working Group notes that its task is not to reassess the sufficiency of

the evidence used in the trial. It also notes that Mr. Zamora was acquitted of some of the

charges against him. Consequently, it does not consider that a violation of the presumption

of innocence has been demonstrated.

116.

Additionally, the source claims that the right to an impartial tribunal was not respected

owing to the allegedly friendly relations between the prosecutor, the Seventh Judge, the

Public Prosecution Service and Fundación contra el Terrorismo, the tolerance of disrespectful

attitudes throughout the proceedings, and the interruption of Mr. Zamora and the refusal to

receive his written conclusions and petitions. The Government replies that it has respected

national law in assigning judges by lot and states that different judges participated in the

proceedings and that a collegiate court decided on the conviction.

117.

The Human Rights Committee has interpreted that the obligation to ensure a fair and

impartial trial before an independent and impartial tribunal requires the tribunal to appear to

a reasonable observer to be impartial.21 A hearing is not impartial if the defendant is faced

18 Human Rights Committee, general comment No. 32 (2007), para. 39.

19 Ibid.

20 Ibid., para. 30.

21 Ibid., para. 21.

A/HRC/WGAD/2024/7

GE.24-08015

15

with the expression of a hostile attitude that is tolerated by the court, thus violating the right

to defence.22

118.

Considering the conflicting views of the Government and the source on this issue, the

Working Group lacks information to find a violation of the right to be tried by an independent

and impartial tribunal.

119.

The Working Group concludes that the above-mentioned violations of the right to a

fair trial are of such gravity as to render Mr. Zamora’s deprivation of liberty arbitrary under

category III.

(d)

Category V

120.

The Working Group concluded under category II that Mr. Zamora’s detention resulted

from the legitimate exercise of the right to freedom of expression. Where detention is the

result of the active exercise of civil and political rights, there is a strong presumption that it

also constitutes a violation of international law on grounds of discrimination based on

political or other views.23 Consequently, the Working Group will consider the allegations

under category V.

121.

The source claims that Mr. Zamora was attacked because of his political opinions, as

expressed through his journalistic activities. It claims that persons who fight corruption,

including not only independent investigative journalists but also judges, prosecutors, activists

and independent justice operators in general, were subjected to discrimination. The

Government denies any link between Mr. Zamora’s arrest and his journalistic activities.

122.

The Working Group notes the statements made after the court ruling by the head of

the Office of the Special Prosecutor against Impunity regarding journalistic activities

undertaken by Mr. Zamora that were unrelated to the trial, as well as the closure of

elPeriódico as a result of the economic measures adopted in the trial. It notes that the

newspaper’s journalists, columnists and administrative staff were criminalized and that the

Government decided not to contest this allegation. After examining the materials, the

Working Group finds that Mr. Zamora’s deprivation of liberty is discriminatory on the

grounds of his political opinions.

123.

There is widespread concern within the international community about the

criminalization and protection of judges, prosecutors, journalists (including Mr. Zamora) and

human rights defenders in the context of the fight against corruption in Guatemala.24

124.

Consequently, Mr. Zamora’s detention violates articles 2 and 7 of the Universal

Declaration of Human Rights and articles 2 (1) and 26 of the Covenant and is arbitrary under

category V.

3.

Disposition

125.

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

The deprivation of liberty of José Rubén Zamora Marroquín, being in

contravention of articles 2, 7, 9, 10, 11 and 19 of the Universal Declaration of Human

Rights and articles 2 (1), 9, 14, 19 and 26 of the Covenant, is arbitrary and falls within

categories I, II, III and V.

126.

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

necessary to remedy the situation of Mr. Zamora 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 Covenant.

127.

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

case, the appropriate remedy would be to release Mr. Zamora immediately and accord him

22 Ibid., para. 25.

23 Opinion No. 59/2019.

24 A/HRC/53/9; A/HRC/52/23, paras. 14, 84 and 88; and Inter-American Commission on Human

Rights, Annual Report 2022, chapter IV.B, Guatemala, para. 152.

A/HRC/WGAD/2024/7

16

GE.24-08015

an enforceable right to compensation and other reparations, in accordance with international

law.

128.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Mr. Zamora and to take appropriate measures against those responsible for the violation of

his rights.

129.

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

the present case to the Special Rapporteur on the promotion and protection of the right to

freedom of opinion and expression and the Special Rapporteur on the independence of judges

and lawyers, for appropriate action.

130.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

131.

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. Zamora has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Zamora;

(c)

Whether an investigation has been conducted into the violation of

Mr. Zamora’s rights and, if so, the outcome of the investigation;

(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.

132.

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.

133.

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.

134.

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.25

[Adopted on 19 March 2024]

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