Blogue

Alima Racine is a voluntary legal advisor and an intern of the Barreau du Québec (Quebec Bar) in Guatemala, as part of the project « Protection of children, women and other vulnerable communities » (PRODEF) implemented by Lawyers without borders Canada (LWBC) and the International bureau for children's rights (IBCR) with the financial support of the government of Canada. She is working in the Center of legal action in humain rights (CALDH), a Guatemalan organisation specialised in the defense of human rights.

Introduction

The end of the internal armed conflict in Guatemala did not lead to the eradication of human rights violations. On the contrary, serious human rights violations including lack of accountability for past atrocities, impunity, corruption and gender-based violence are widespread (1). As in many countries where the rule of law is lacking and where impunity is ‘monnaie courante’, women often pay the highest price.

There is an additional disturbing trend lately in Guatemala (as well as some of its neighbors), which is a practice branded as the “criminalization” of human rights activists. Although so far this has been directed more at male human rights defenders, female human rights defenders also are also becoming more subject to this serious abuse in Guatemala (2).

This post tells the story of 6 brave women from Santa Eulalia in Huehuetenango Guatemala who are currently facing arrests warrants based on false accusations, as way of silencing them from carrying on with their advocacy work as human rights defenders.

The background situation

The 6 accused are women who are community leaders working tirelessly to bring about positive change in their society, to contribute to the implementation of social justice, and to fight against the existing disparity in their country. Their defense lawyers have argued that because of their advocacy, they are easy prey for criminalization tactics involving baseless prosecution to remove them from the fight for social justice.
These criminalization tactics have resulted in the women being accused of crimes such as attacks (3), coercion (4), threats (5), instigation (6), kidnapping (7) and obstruction to justice (8) . In essence, the crown prosecutor alleged that the women had tried to oppose the incarceration of certain inductees who are also community leaders and who are the subject of arrest warrants (9). The Crown Prosecutor also alleged that the women have insulted and professed threats against the staff of the Crown Prosecutor and the Judiciary in an attempt to obtain the release of the accused. Based on these accusations, on April 3rd 2015, a judge issue arrest warrants at the request of the Public Prosecutor’s office.

The legal situation

Since then, the case has been latent while the women have lived in hiding and in constant fear. But recently, on November 25, 2016, to mark the celebrations of the International Day for the Elimination of Violence against Women, the defense team of lawyers presented a grievance to the judge in charge of this case in which they underlined substantial procedural flaws.

In their grievance, the defense lawyers refute the accusations against their clients and qualify the prosecution of their clients as baseless. They also alleged 4 violations to their client’s constitutional guarantees:

1. The right to a just and fair trial and the inviolable right to defense (10).
2. The right to effective judicial protection (11).
3. The right to an impartial judge (12).
4. The right to be heard by a competent tribunal (13).

In essence, they argue that the deprivation of the right to liberty of a person must be based on concrete facts justifying the arrest. They also make the point that, as noted by the Interamerican Commission of Human Rights, there has been systematic misuse of arrest warrants, which remain in effect for years but are not executed, and only get resuscitated in strategic moments, when the people with the warrants become active again. The commission considers this way of using arrest warrants as a deliberate tactic to silence and prevent human rights defenders from carrying on with their activities (14). This amounts to an arbitrary use of the criminal law which puts human rights defenders in a vulnerable situation (15).
In regards to the legality of arrest, the Guatemalan Constitution is very clear. It provides that no person may be arrested or detained except for a crime or misdemeanor and by a warrant issued per the law by a competent judicial authority. Cases of flagrante violation or fleeing from justice are however excepted (16).

Furthermore, the Guatemalan Criminal Procedure Code provides that the Crown Prosecutor may request the arrest of the accused, when he considers that the legal requirements are met and that his imprisonment is necessary, in which case he will make the detained available to the judge for a judicial review of the motives of detention (17).
While it is worth noting that the use of various mechanisms of repression and persecution by the State against the civilian population is not new in Guatemala, however, the perverse use of criminal law to shut down social protest is somewhat new. This situation is so alarming that it prompted the Interamerican Commission on Human Rights to act. The Commission considers that arrest is arbitrary and illegal when it is practiced outside the motives and formalities established by law, when there has been a deviation from the powers of arrest, and when it is practiced for purposes other than those anticipated and required by law (18).

In their grievance, the defense lawyers argued their clients ‘right to freely and effectively promote and defend any right” had been violated (19). This is also reiterated by the Interamerican Commission which argued that the activities of defense and promotion of human rights should not be discredited or criminalized in any way – States have a duty to respect and guarantee that human rights defenders can carry out their work by providing them with the necessary means to freely conduct their activities (20).

Considering this, the defense lawyers requested that the judge confirm the violations denounced in their petition and declare the nullity of the pending arrest warrants against their clients. To this day, they are still waiting for the judge to decide on their petition.

Conclusion

The justice system is one of the pillars defining the pact between a state and its people. Its capacity to protect individuals, as well as its impartiality and transparency are at the heart of the good functioning of society. It is a rampart that protects people, especially in times of vulnerability, guarantees the rights and therefore the duties of each, the conditions of a peaceful and inclusive society.

Allowing “criminalization tactics” to intimidate and silence human rights defenders (of which women are particularly vulnerable ) contributes to systematically reinforcing social inequalities and injustice. States must take steps to prevent the use of arbitrary arrest or detention as a means of deterrent, retaliation or punishment against human rights defenders, be they men or women.

While justice must follow its course, these 6 brave women are forced to put their lives on hold and to live in hiding and in constant fear. It is our hope that talking about this will help raise awareness and result in effective strategies and actions to eliminate this “criminalization tactic” as a means of intimidating, silencing and eliminating human rights defenders, particularly women, in a society where the lack of a gender perspective is known to have contributed to discrimination and injustice in many sectors (21).

1 Communication to the UN Commission on the Status of Women, Criminalisation of Women Human Rights Defenders in Guatemala:The case of La Puya in San Jose del Golfo and San Pedro Ayampuc, co-presented by the Latin American Mining and Monitoring Programme (LAMMP) and the Red Union Latino Americana de Mujeres (Red ULAM), available at: http://lammp.org/wp-content/uploads/2015/02/UN-Communication-on-the-Status-of-Women-La-Puya-_Guatemala.pdf
2 For further information, please consult the Statement issued by Iniciativa Mesoamericana on December 5, 2016 to commemorate the International Women Human Rights Defenders Day available at: http://im-defensoras.org/2016/12/statement-november-29th-international-women-human-rights-defenders-day/
3 Article 408 of the Criminal Code of Guatemala
4 Article 214 of the Criminal Code of Guatemala
5 Article 215 of the Criminal Code of Guatemala
6 Article 394 of the Criminal Code of Guatemala
7 Article 201 of the Criminal Code of Guatemala
8 Article 458 bis of the Criminal Code of Guatemala
9 For more information on this case, please check out the post written by my colleague Alexandra Billet: http://www.asfcanada.ca/fr/blogue/billet/je-sais-qu-il-fait-deja-nuit-mais-le-soleil-de-la-justice-a-commence-a-pointer-sur-notre-pays-observation-du-proces-barillas-au-guatemala/346
10 Articles 12 of the Political Constitution of the Republic of Guatemala; 10 and 11 of the Universal Declaration of Human Rights, XXIII and XXVI the American Declaration of the Rights and Duties of man; 14 and 15 of the International Covenant on Civil and Political Rights; 8 and 9 of the American Convention on Human Rights.
11 Articles 2, 44, 46, 149, 203 and 204 the Political Constitution of the Republic of Guatemala; 1, 2, 8 and 25 de la Convencion Americana sobre Derechos Humanosof the American Convention on Human Rights.
12 Articse 12, 203, 204 and 205 the Political Constitution of the Republic of Guatemala and 8 of the San Jose Covenant
13 Articles 12 and 203 of the Political Constitution of the Republic of Guatemala and 8 and of the San Jose Covenant
14 OEA/Ser.L/V/II Doc.49 /15 31 IACHR ‘Criminalization of the Work of Human Rights Defenders’ December 2015, paragraph 185.
15 OEA/Ser.L/V/II Doc.49 /15 31 IACHR ‘Criminalization of the Work of Human Rights Defenders’ December 2015, paragraph 189.
16 Article 6 of the Political Constitution of the Republic of Guatemala
17 Article 257, 3rd paragraph of the Guatemala Code of Criminal Procedure
18 OEA/Ser.L/V/II Doc.49 /15 31 IACHR ‘Criminalization of the Work of Human Rights Defenders’ December 2015, paragraph 187.
19 Article 7 of the UN Declaration on Human Rights Defenders
20 OEA/Ser.L/V/II Doc.49 /15 31 IACHR ‘Criminalization of the Work of Human Rights Defenders’ December 2015 paragraph 160.
21 Supra note 1.

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