By Efrén Diego Domingo
The Guatemalan legal system recognizes the human person a series of rights. When human rights are disregarded by the State, the victim has the alternative and the constitutional right to use all the legal resources available to the law.
1. Internal resources for the defense of human rights
The Guatemalan legal system recognizes the human person a series of rights among which are the rights to life, the right to liberty and equality, the right to education, the right to culture, the right to property and possession of land. , right to a healthy environment, right to consultation and participation, right to live in safety, right to indigenous bilingual education. Along with these are also legal resources for your defense and protection.
When human rights are ignored by the State, the victim, that is, the person who suffers the act, has the alternative and the constitutional right to use all the legal remedies established by law in order to claim the restitution of the right violated by the State. or full reparation of the damage caused.
Among some of the resources available in Guatemalan law is the action or trial of AMPARO. Article 265 of the Constitution says about the origin of the protection. Amparo is instituted in order to protect people against threats of violations of their rights or to restore their rule when the violation has occurred. There is no area that is not susceptible of protection, and it will proceed whenever the acts, resolutions, provisions or laws of authority imply a threat, restriction or violation of the rights that the constitution and the laws guarantee. The Law of Amparo, Personal Exhibition and Constitutionality, Decree 1-86, Agreement Number 4-89 is pronounced in the same way in its article 8.
Taking into account the aforementioned, we can say then that the indigenous people or communities whose rights are affected, threatened or at risk by acts, resolutions, provisions or laws of state authority, have the right to go to court to enforce their rights In accordance with the law, as stated in article 29, of the Constitution regarding free access to courts and State agencies.
Professor Víctor Rodríguez Rescia says that “The appeal for protection is the call to protect and guarantee human rights in a more expeditious and direct way. Normally this occurs by invoking violations of the rights contained in political constitutions and that generally coincide with the rights incorporated in treaties or other international instruments. Fortunately, the most modern laws empower the victim to argue the appeal for amparo not only for constitutional violations, but also for rights established in international instruments in force in that State. ”[I]
For this reason, when ratifying an international human rights Convention or Treaty, the State does so in a sovereign and voluntary manner and, from there, the State itself undertakes to comply with each of the provisions of international regulations.
In the case of violations of human rights at the internal level, there is the amparo action to move the official justice for the protection of human rights.
If you do not find justice in the domestic sphere, you must go before the international authorities.
2. International protection of human rights.
Before going to the international jurisdiction for the protection of human rights, it is necessary to exhaust the use of all the internal remedies established by the internal laws of the country. It is well known that the international bodies for the protection of human rights are subsidiaries of the national ones. Alicia Granda says that in view of the inaccessibility of the justice systems and the lack of unfair pronouncements or resolutions, they are reasons to file a complaint with these organizations. [Ii]
For this reason, “Human rights are equivalent to constitutional rights when they are claimed in the internal law of each country through the procedural guarantees recognized by the Political Constitution itself. But when they transcend the sphere of domestic law, they cease to be called constitutional rights, guarantees or freedoms, to assume a more universal understanding as human rights ”. [Iii]
3. The Inter-American Commission and Court of Human Rights
The American Convention on Human Rights establishes two competent institutions or bodies to oversee the commitments assumed by the American States in the Convention. These two bodies are the Inter-American Commission and Court of Human Rights.
The Inter-American Commission on Human Rights (IACHR) is a body of the Organization of American States created to promote the observance and defense of Human Rights and to serve as an advisory body to the Organization on this matter (art. 1.1 Statutes). In its regulations it says that this (the Commission) is an autonomous organ of the OAS that has the main functions of promoting the observance and defense of human rights (art. 1.1 of the Regulations).
In the case of the Inter-American Court, its Statute says that it is an autonomous judicial institution whose objective is the application and interpretation of the American Convention on Human Rights. It exercises its functions in accordance with the provisions of the Convention and its Statute (art. 1 Statute).
4. The Commission and the Court with different powers
Among the different competences that the Inter-American Commission and Court have, we can find a differentiated treatment where the Commission does have a broader scope of protection than the Inter-American Court because its sphere of action is not limited to the American Convention, but the American Declaration and other human rights treaties. [iv]
Article 23 of the Commission's Regulations says that any person or group of persons, or non-governmental entity legally recognized in one or more member states of the OAS, may present to the Commission petitions on their own behalf or on behalf of third parties, concerning the alleged violation of some of the recognized human rights, in the following instruments:
- The American Declaration of the Rights and Duties of Man,
- The American Convention on Human Rights,
- The Additional Protocol on Human Rights in the Area of Economic, Social and Cultural Rights,
- The Protocol Relating to the Abolition of the death penalty,
- The Inter-American Convention to Prevent and Punish Torture,
- The Inter-American Convention on Forced Disappearance of Persons and
- The Inter-American Convention to Prevent, Punish, and Eradicate Violence against Women.
With the citation of this article, there is no more doubt that the Inter-American Commission has a broader jurisdiction than the Inter-American Court itself. Already the Inter-American Commission regularly integrates norms from other international instruments that have allowed it to have a broad scope. For example, in the case of the Aché tribe, No. 1802 (Paraguay), a point resolved by the Commission was that the one to recommend that the Paraguayan States adopt energetic measures to effectively protect the rights of the Aché tribe, hence it deduces that it refers to the rights of collectivities and not of individuals. [v]
5. Protection of the rights of indigenous peoples, thanks to the creative and inclusive interpretation of the promotion and protection bodies of the Inter-American System.
Another important point that indigenous peoples should know is that the American Convention in its article 29 establishes that no provision of this can be interpreted in the sense of limiting the enjoyment of the powers recognized by the laws or other international conventions, or excluding others that arise from the democratic system, nor those cited in the American Declaration, which means that those who are not named will not be left without coverage, which opens an umbrella to recognize the collective rights of indigenous peoples. [vi]
Now that Guatemala has accepted the jurisdiction of the Inter-American Court of Human Rights, the content of ILO Convention 169 or the International Covenant on Civil and Political Rights can be alleged there. The allegation can be made, according to the Mexican lawyer, Magdalena Gómez, under the legal principle of interconnection, as well as the universality and indivisibility of human rights.
5. Who can present a petition to the Inter-American Commission?
In accordance with Article 23 of the Rules of Procedure of the IACHR:
- A group of people
- Non-governmental entities legally recognized in one or more member states of the OAS, in their own name or that of third parties.
- The petitioner may designate in the petition itself, or in another writing, a lawyer or another person to represent him before the Commission.
- The Commission may also, on its own initiative, initiate the processing of a petition that contains, in its opinion, the requirements for this purpose (Article 24 of the IACHR Rules of Procedure).
6. What are the conditions for the consideration of petitions before the IACHR?
It is necessary to know these important points so that our complaint or request does not encounter any obstacle:
- The state that is accused must have violated one of the human rights established in the ACHR or the American Declaration or of some of the aforementioned inter-American instruments. (Art. 27 of the Rules of Procedure of the IACHR).
- Exhausting internal resources. Regarding this rule, the American Convention in its Article 46.1 states that for a petition or communication submitted pursuant to Articles 44 or 45 to be admitted before the Commission, it will be required: a) that domestic remedies have been filed and exhausted, in accordance with to the generally recognized principles of International Law. Similarly, Article 31.1 of the IACHR Rules of Procedure is pronounced.
- The petition before the Commission must be presented within six months from the date the alleged victim has been notified of the decision that exhausts domestic remedies (Article 32.1 of the Rules of Procedure).
- The claim must not be pending another settlement before an international organization (Article 33.1.a Regulations).
7. What information must the petition before the Commission contain?
1. Every petition addressed to the Commission must be submitted in writing and must contain:
- The name of the victim, that is, the person who suffers the act.
- Nationality (for example Guatemalan)
- Occupation, or profession (carpenter, lawyer)
- Address and signature.
- If the petitioner is a non-governmental entity (NGO), the name and signature of its legal representative must be included.
2. The petition must clearly state the violation that occurred, indicating which right enshrined in the American Convention or other applicable inter-American norms have been violated. The date and place where the violation occurred should be noted, and the responsible government identified. If possible, the name of any official who had knowledge of the fact or action.
3. The petition must contain the information that indicates that all remedies have been exhausted before the domestic jurisdiction, setting out the steps that have been taken before the justice authorities and the results obtained. If domestic remedies were not exhausted, the causes and why such remedies were not exhausted must be indicated.
4. The petition must contain all the details of the case and provide all the possible evidence to clarify the fact (s). In this case, Gabriela Judith Vázquez says that the parties can use the documentary evidence in their possession, referring to both public and private documents. One aspect that acquires relevance is the testimonial evidence, which can be provided by the parties through instruments that reliably confirm its veracity or can be received by the Commission at its headquarters or during an on-site visit.
5. In the case of emergency situations such as great danger to the personal integrity, health or life of a person, the adoption of precautionary measures may be requested. For this, the writing must be brief and sent by any means, either by fax or telegram. In these situations, the Commission has the power to act quickly, to avoid irreparable damage to the victims of the events.
8. Procedure before the Inter-American Commission (Art. 29, 30, 37, 38, 39, 40, 41, 42, 43 and 44).
- The Inter-American Commission receives the complaint or petition.
- Once the petition is admitted, an investigation phase begins to establish the facts contained in the complaint.
- The complaining party receives a notification, in case the Commission needs more information.
- If the complaint is accepted, it will be registered, the date on which it is received and will acknowledge receipt to the petitioner.
- Once the file is opened, a written summary of the complaint is prepared and sent to the Ministry of Foreign Affairs of the government accused of the violation of human rights. In this summary, the identity of the petitioner will not be released, unless authorized, in order to avoid a threat from the accused government.
- The Commission asks the government to respond to the complaint as soon as possible, generally no more than 90 days after notification.
- The governments respond, when they do, a summary of the government's response is sent to the complaining party and 30 days will be given to respond to the protests. If the government does not respond, its silence can be used as evidence that the complaint is true. “The facts alleged in the petition, the pertinent parts of which have been transmitted to the State in question, will be presumed to be true, if the latter does not provide relevant information to dispute it within the period set by the Commission in accordance with Article 38 of these Regulations, provided that other elements conviction does not result in a contrary conclusion. (Art. 39. Presumption. Rules of Procedure of the IACHR).
- This process of exchanging the complaint and other information about the petitioning party and the accused government can continue for longer periods if the information needs to be further clarified. This exchange helps the Commission decide the facts about the allegations made in the complaints, and communication with both parties supports the Commission's efforts to reach conciliation between the parties.
- While the case is being investigated, the Commission can decide whether to hold oral hearings of the parties or witnesses involved in the events. These hearings will only remain open to the people who are invited to them.
- The Commission can also decide to send its own members or representatives to the country where the human rights violation took place, to carry out an on-site investigation. This allows a close examination of the situation. There are cases during the investigation in which the Commission has made arrangements to interview the victims and witnesses and in complete confidentiality. Countries that have ratified the ACHR have a legal obligation to cooperate with the Commission on these visits.
- While the complaint is being considered by the Commission, the complaining party may submit information in order to update the complaint.
- The Commission acts as a mediator, never as a Court, trying to seek an amicable settlement between the parties.
- If the Commission decides that a friendly settlement cannot be reached, it prepares a report with all the information received. This report will contain specific proposals and recommendations on steps that the government should take to resolve human rights problems within a specific period of time.
- If the government does not follow its recommendations, the Commission can then publish its report and produce a new one, or send the case to the Inter-American Court of Human Rights, in case the State has accepted its contentious jurisdiction. In the case of Guatemala, it has accepted the jurisdiction of the Court. Article 44.1 of the Commission's Rules of Procedure states: “If the State in question has accepted the jurisdiction of the Inter-American Court, in accordance with Article 62 of the American Convention, and the Commission considers that it has not complied with the recommendations of the approved report of According to Article 50 of the aforementioned instrument, it will submit the case to the Court, except by reasoned decision of the absolute majority of the members of the Commission.
- Publishing a firm and critical report to the OAS Assembly and the general public can be politically embarrassing for a given government. The threat of such publicity is often enough pressure to convince the government to follow the recommendations made by the Commission.
9. Challenges of indigenous peoples
The struggle of indigenous peoples must follow two paths: the first path is to know how to operate internal legal resources to defend collective rights, as well as how to operate the bodies for the international protection of human rights, such as the Commission and the Inter-American Court of Human Rights and the second way is to promote a political struggle based on forceful mobilizations, because as a friend once said, "a right that is not claimed or defended is lost."
At another time, after having carefully read the Legal Guides Series - Indigenous Rights No. 4, Indigenous Peoples' Rights in the Inter-American System [vii] by Gabriela Olguín Martínez (ILO expert), I can cite some important ideas suggested by the author of this guide. She says that for the defense of the rights of indigenous peoples are necessary:
- The constitution of a basic team dedicated to indigenous rights.
- Training in human rights and rights of indigenous peoples.
- Alliances with like-minded organizations.
- Contest of advisers and consultants identified and committed to the struggles of the indigenous movement.
- Good communication to inform, disseminate and guide civil society on this problem.
- Awareness campaign on symbolic dates or allusive to human rights and especially the rights of indigenous peoples.
- Have a reserve fund.
- Actions in the international sphere of the ILO.
- The development of an observatory of indigenous rights
- Ensure that, within the social dimension of regional integration processes, the issue of indigenous rights is incorporated as a priority.
- Establish indigenous networks, at the grassroots level, in order to monitor possible violations of indigenous rights.
- Strengthen one or the home front.
- Specialized advice to choose the most appropriate action from among the various options offered by the constitutional, administrative, and criminal fields.
- Know and make use of the mechanisms for the protection of human rights in the Inter-American System.
- Know the most agile channels and networks in the dissemination of their problems and response to their requests for support and solidarity.
- The Political Authorities or public officials linked to the solution of indigenous problems, are those who must
- Clearly identify the political authorities or public officials linked to the solution of indigenous problems and be able to exert public pressure in order to link them to indigenous positions or achieve decision-making favorable to our cause, and
- Systematize the experience based on Analysis of the strategy, analysis of the results obtained, analysis of the strengths, opportunities, weaknesses and threats and analysis of the instruments and methodology applied.
* Alicia Granda. Defense of Human Rights against Oil Exploitation. Voices of Resistance, Oil Exploitation in the Tropics. OILWATCH.
* American Convention on Human Rights.
* Statute of the Inter-American Court of Human Rights.
* Gabriela Judith Vázquez Smerilli. Human Rights Manual. International Instrument. Institute editions.
* Gabriela Olguín Martínez. Right of Indigenous Peoples in the Inter-American System. Legal Guides-Indigenous Rights Series No. 4. ILO.
* Magdalena Gómez. Justiciability of ILO Convention 169.
* Regulations of the Inter-American Commission on Human Rights.
* Víctor Rodríguez and Javier Rodríguez. Materials Anthology. Inter-American Legal Clinic Specialized in the Rights of Indigenous Peoples. Chiapas, Mexico, May 2006.
[i] Cf. Rodríguez, Víctor. Chiapas, Mexico, 2006.
[ii] Alicia Granda. OILWATCH. Page 170.
[vi] See Gabriela Olguín Martínez. ILO.
[vii] In order to find this Guide, go to the ILO website: www.oit.or.cr and when you enter, go to the publications section and it does not immediately show the entire range of publications.