Committee against Torture

List of issues prior to submission of the eighth periodic report of Guatemala *

Specific information on the implementation of articles 1–16 of the Convention, including with regard to the Committee’s previous recommendations

Issues identified for follow-up in the previous concluding observations

1.In its previous concluding observations,the Committee requested the State party to provide information on the measures taken in follow-up to its recommendations on the national mechanism for the prevention of torture (para. 15 (b)); deaths and ill-treatment occurring in shelters and detention centres for adolescents (para. 25 (a)–(b)); the investigation of acts of torture and other serious violations committed during the internal armed conflict (para. 27 (a)); and violent deaths, evictions and internal security (para. 33 (d)–(e)). Noting that a reply concerning the information sought by the Committee was provided on 24 December 2019 and with reference to the letter dated 5 August 2020 from the Rapporteur for follow-up to concluding observations, the Committee considers that the recommendation contained in paragraph 15 (b) of the previous concluding observations has not yet been implemented and that the recommendations contained in paragraph 25 (a) and (b) and paragraph 33 (d) and (e) have been only partially implemented. The Committee also considers that, since the adoption of the previous concluding observations, the State party has taken measures that are contrary to the recommendations set out in paragraph 27 (a).

Articles 1 and 4

2.With reference to the Committee’s previous concluding observations, please provide information on measures taken to bring the content of articles 201 bis and 425 of the Criminal Code into line with article 1 of the Convention.Please also describe the measures taken by the State party to ensure that these offences are punishable by appropriate penalties that take into account their grave nature, in accordance with article 4 (2) of the Convention. Please also indicate whether the legislation on the period of limitation for the offence of torture has been amended.

Article 2

3.With reference to the previous concluding observations, please provide detailed information on measures taken to ensure that all detainees are afforded, in law and in practice, all fundamental safeguards against torture and ill-treatment from the outset of their deprivation of liberty, in accordance with international standards.In that regard, please provide information on any disciplinary measures taken, since the consideration of the State party’s previous periodic report, against law enforcement officials who have not immediately allowed persons deprived of liberty to benefit from these safeguards. Please also provide information on measures taken to ensure that the questioning of persons deprived of their liberty is video recorded in all cases, that those recordings are stored in a safe place and that they are made available to investigators, detainees and their lawyers or legal representatives. Please indicate whether the State party has taken any specific measures to ensure the provision of free legal aid of an adequate quality.

4.In the light of the previous concluding observations, please provide updated information on the legislative or other measures taken during the period under review to combat gender-based violence, especially those cases involving actions or omissions by State authorities or other entities that engage the international responsibility of the State party under the Convention.Please indicate whether all departments of the country have prosecutors’ offices and courts specializing in gender-based violence.Please also provide information on the protection and support services available to victims of gender-based violence in cases involving actions or omissions by the authorities of the State party.In particular, please comment on the reports of gaps in funding for the comprehensive support centres for women survivors of violence.Please include comprehensive statistical data, disaggregated by the age and ethnic origin or nationality of the victims, on the number of complaints, investigations, prosecutions, convictions and judgments recorded in cases of gender-based violence since the consideration of the State party’s previous periodic report.Please provide updated information on the measures taken to improve mandatory training programmes for judicial and law enforcement officials on the prosecution of gender-based violenceand to expand public awareness-raising campaigns concerning all forms of violence against women.

5.With reference to the previous concluding observations, please provide updated information, disaggregated by the age, sex and ethnicity or nationality of the victims, on the number of complaints, investigations, prosecutions and convictions recorded in cases of trafficking in persons since the consideration of the State party’s previous periodic report.Please also provide information on the provision of redress to victims of trafficking during the reporting period, including data on the number of persons who benefited from protection and support measures for victims.

Article 3

6.Please provide detailed information on any normative and institutional developments in the areas of asylum and the protection of refugees, and on the signing of international agreements for the management of mixed migratory flows. In the light of the previous concluding observations, please describe the measures taken during the period under review to ensure that no person is returned to a country where he or she would be at risk of torture.Please describe how, in practice, the State party ensures effective access to the refugee status determination procedure.Please provide detailed information on the measures taken to identify vulnerable persons seeking asylum in the State party, including victims of torture or similar traumas, and to ensure that their specific needs are fully taken into consideration and addressed in a timely manner, including by providing access to medical services. Please indicate whether individuals facing expulsion, return or extradition are informed that they have the right to seek asylum and to appeal an expulsion decision, and whether such an appeal has suspensive effect. Please explain how the State party ensures that asylum seekers have access to legal assistance and interpretation during the asylum procedure and that the best interests of the child are a primary consideration in all decisions concerning child asylum seekers and migrants.

7.Please provide updated information on the number of asylum applications received during the period under review, the number of successful applications and the number of cases in which asylum was granted on the grounds that the applicant had been tortured or might be tortured if returned to his or her country of origin. Please include information, disaggregated by sex, age and country of origin, on the number of persons who have been returned, extradited or expelled since the consideration of the previous periodic report. Please provide details regarding the grounds on which these measures were taken, including a list of the countries to which the persons concerned were sent. Please indicate whether the State party has established mechanisms to monitor the situation of vulnerable individuals and groups in receiving countries after their return.Please also describe the measures that the State party has taken to avoid summary returns and collective expulsions and to ensure that all expulsion orders are based on an individual assessment and are conducted in strict compliance with the principle of non-refoulement.

8.Please indicate how many returns, extraditions or expulsions have been carried out by the State party during the reporting period on the basis of the acceptance of diplomatic assurances or the equivalent thereof and in how many cases the State party has offered such diplomatic assurances or guarantees. Please also provide details of the steps taken subsequently to follow up on those cases.

Articles 5–9

9.Please provide information on the legislative and other measures taken by the State party during the period under review to implement article 5 of the Convention, in particular to establish its jurisdiction over cases of torture where the alleged offender is present in any territory under its jurisdiction and it does not extradite him or her. Please also provide information on any extradition treaties concluded with other States parties and indicate whether the offences referred to in article 4 of the Convention are included as extraditable offences in such treaties. Please clarify what treaties or agreements on mutual judicial assistance the State party has entered into with other entities, such as countries, international tribunals or international institutions, and whether those instruments have resulted, in practice, in the transfer of any evidence in connection with prosecutions concerning torture or ill-treatment. Please provide examples.

Article 10

10.With reference to the previous concluding observations, please provide updated information on the training programmes on human rights and the prohibition of torture developed by the State party to ensure that all public officials, particularly law enforcement officers, members of the armed forces, prison staff, border guards, members of the judiciary and the Public Prosecution Service, and staff of the Public Criminal Defence Institute and the National Institute of Forensic Sciences, are well acquainted with the provisions of the Convention and the absolute prohibition of torture and are fully aware that offences will not be tolerated and will be investigated and that the perpetrators of those offences will be prosecuted. Please indicate whether law enforcement officials receive adequate training on the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials. Please also indicate whether the State party has reviewed the rules of engagement of the National Civil Police and the armed forces to ensure consistency with international law. Please provide information on the programmes used in the training of police officers and other law enforcement officials in non-coercive investigation techniques. Please indicate in each case the number, institutions and percentage of public servants that have participated in such training programmes. Please also indicate whether the State party has considered establishing a methodology for evaluating the effectiveness and impact of its training programmes in reducing the number of cases of torture and ill-treatment. If so, please provide information in this regard. Please also provide information on the measures taken to give effect to the provisions of article 10 (2) of the Convention.

11.In the light of the previous concluding observations, please provide updated information on training programmes for judges, prosecutors, forensic doctors and medical personnel dealing with persons deprived of liberty to enable them to detect and document the physical and psychological after-effects of torture. Please indicate whether these programmes include specific training on the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol).

Article 11

12.Please describe the procedures in place for ensuring compliance with article 11 of the Convention and provide information on interrogation rules, instructions, methods and practices and arrangements for custody, especially those adopted or revised since the consideration of the State party’s previous periodic report. Please also indicate the frequency with which they are reviewed. Please report on the progress made in implementing the new prison management model.With reference to the previous concluding observations and the State party’s follow-up replies,please indicate what specific measures have been taken to fulfil the State party’s public pledge to withdraw the armed forces from civil security tasks.

13.With reference to the previous concluding observations, please describe the measures taken by the State party to improve conditions of detention, including those aimed at reducing overcrowding in prisons and other detention centres and promoting the use of alternatives to imprisonment, both before and after trial.Please provide statistical data, disaggregated by sex, age and ethnicity or nationality, on the number of pretrial detainees and convicted prisoners and on the occupancy rate of all places of detention.Please provide clarification on the legislation and policies relating to pretrial detention and on the measures taken to avoid the excessive use of such detention.Please also provide information on the measures taken to ensure that persons in pretrial detention are separated from convicted persons.Please provide information on any action taken in response to the Committee’s concerns regarding the inadequate provision of water and food and the lack of sanitation and hygiene facilities in detention centres.Please comment on reports that there is a lack of beds and inadequate lighting in prisons. Please also comment on reports of the insufficiency of educational programmes and social and workforce reintegration programmes.Please provide information on the measures taken by the State party to ensure that its law and practice regarding solitary confinement are consistent with international standards.Please describe the measures taken to ensure that body search procedures in prisons are not degrading to inmates or visitors.In that connection, please comment on reports that women visitors to prisons are required to wear a skirt or dress.

14.With reference to the previous concluding observations, please indicate how the State party ensures that prisons are allocated the human and material resources needed for the provision of proper medical care, including obstetric and gynaecological care.Please provide detailed information on the measures taken to ensure that medical examinations are conducted as part of the prison intake process and to combat the spread of infectious diseases inside prisons. What measures have been taken to ensure that prisoners in need of hospital treatment are transferred to hospitals? Please also describe the measures taken to ensure the provision of treatment for drug dependency in prisons.

15.Please provide information on the measures taken by the State party during the period under review to address the specific needs of women and minors in detention.Please indicate whether there are protocols in place for the treatment of certain groups of prisoners, such as persons with disabilities, foreigners, older persons and lesbian, gay, bisexual, transgender and intersex persons.Taking into account the previous concluding observations, please describe the steps taken to alleviate overcrowding and improve the material conditions in detention centres for adolescents in conflict with the law.

16.With reference to the previous concluding observations, please provide statistical data on the number of deaths of persons deprived of their liberty during the period under review, disaggregated by place of detention, sex, age, ethnic origin or nationality and cause of death.Please describe how these deaths were investigated, the outcome of the investigations and the measures taken to prevent similar cases from occurring in the future. Please indicate whether, in any of these cases, the relatives of the deceased received compensation. Please also indicate whether the strategies and programmes for the prevention and detection of suicide in prisons have been reviewed.Please provide information on acts of inter-prisoner violence, especially cases involving possible negligence by officials and authorities, and on the number of complaints filed in that regard and the results of investigations into those complaints.Please include information on the investigation into the circumstances surrounding the riot that took place at Cantel Model Rehabilitation Farm in the Department of Quetzaltenango on 19 May 2021, in which at least seven prisoners died.Please also provide information on the measures taken during the period under review to ensure security inside prisons and other detention centres.Please comment on reports of extortion of persons deprived of their liberty (through collection of the fee known as talacha).

17.Please provide updated information on the number of asylum seekers and migrants in an irregular administrative situation who are deprived of liberty in the State party. Please describe the measures taken by the State party during the period under review to ensure that asylum seekers and migrants in an irregular situation are detained only as a last resort, where necessary and for as short a period as possible, and to promote the use of alternatives to deprivation of liberty in practice.Please comment on reports of indefinite detention and inappropriate conditions of detention in shelters for migrants, especially minors, families with children and persons with disabilities.

18.Taking into account the previous concluding observations, please provide detailed information on any investigations that have been conducted during the period under review with respect to allegations of indefinite detention,physical and sexual abuse of persons in psychiatric institutions and forced institutionalization and degrading treatment of drug addicts. Please also provide information on the number of persons deprived of their liberty in psychiatric hospitals and other institutions for persons with intellectual or psychosocial disabilities. Please describe the situation with respect to alternative forms of treatment, such as community-based rehabilitation services and other outpatient treatment programmes.Please also provide information on the protocols that govern the use of restraint measures and solitary confinement in psychiatric and social assistance institutions.

19.In accordance with the previous concluding observations and the State party’s follow-up replies,please provide information on the visits to places of deprivation of liberty carried out by the National Office for the Prevention of Torture during the period under review and on the measures taken by the State party in response to the recommendations made by this mechanism. Please describe the measures taken to ensure that the National Office for the Prevention of Torture has the budget, infrastructure and resources that it needs to fully execute its mandate. Please comment on reports that there is a lack of transparency with regard to the accounts of this body.Please explain what measures have been taken to ensure that the rapporteurs of the National Office for the Prevention of Torture are selected by means of a process that is in line with the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the guidelines on national preventive mechanisms.Please indicate whether the staff of the National Office for the Prevention of Torture have unhindered access to all places of deprivation of liberty without prior notice and are able to speak with prisoners in private. Please clarify whether non-governmental organizations are authorized to carry out activities inside prisons in order to verify and monitor respect for the rights of persons deprived of their liberty. Please also clarify whether the consultative council for the national mechanism for the prevention of torture has been established, in accordance with Decree No. 40-2010 and its implementing regulations. Please indicate what measures have been taken to ensure that persons who report torture or ill-treatment are not subjected to reprisals. Lastly, please describe the measures taken to ensure that the National Office for the Prevention of Torture respects and recognizes the independence of the judiciary.

Articles 12–13

20.With reference to the previous concluding observations, please provide statistics, disaggregated by sex, age, ethnic origin or nationality, and place of detention, on the number of complaints of torture, ill-treatment, including sexual abuse, and the excessive use of force, especially in the context of demonstrations and protests and during evictions, that were filed during the reporting period.Please also provide information on investigations, disciplinary and criminal proceedings, convictions and the criminal or disciplinary sanctions applied.Please provide examples of relevant cases or judicial decisions. Please also comment on reports of police abuse, including acts of intimidation, extortion, harassment and sexual assault committed against sex workers.

21.Taking into account the previous concluding observations and the State party’s follow-up replies,please provide detailed information on any progress made in the investigation and criminal proceedings relating to the fire that broke out at the Virgen de la Asunción orphanage in the Municipality of San José Pinula in the Department of Guatemala on 8 March 2017, which resulted in the deaths of 41 girls.Please also provide updated information on the investigation of alleged acts of torture, ill-treatment, sexual abuse and trafficking of children in shelters and the prosecution of alleged perpetrators.

22.With reference to the previous concluding observations and the State party’s follow-up replies,please report on any progress made in the investigation and prosecution of acts of torture and other serious human rights violations committed during the internal armed conflict.Please also describe any measures taken by the State party to ensure that victims and witnesses of human rights violations and members of their families are effectively protected and assisted.What measures are provided for in the State party’s legislation to protect the justice officials involved in such proceedings?Please clarify the status of the following bills and legislative proposals and describe the steps taken to ensure that they are in line with the Convention: (a) Bill No. 5377, which would grant an amnesty to persons accused of committing serious crimes during the internal conflict;(b) Bill No. 5920, which would extinguish the criminal liability of anyone who participated in the internal armed conflict;and (c) Bill No. 3590, on the establishment of a national commission on the search for disappeared persons.

Article 14

23.Taking into account the previous concluding observations, please provide information on measures of reparation and compensation, including means of rehabilitation, ordered by the courts or other State bodies and effectively provided to victims of torture or their families since the consideration of the previous periodic report. This information should include the number of requests for compensation submitted, the number of requests accepted and the amounts awarded and actually paid in each case. Please also provide information on ongoing reparation programmes, including those providing for the treatment of trauma and other forms of rehabilitation for victims of torture or similar traumas, and on the material, human and budgetary resources allocated to these programmes to ensure their effective functioning. Please indicate the scope of the National Compensation Programme for repairing the harm caused by human rights violations committed during the internal armed conflict and the extent to which it has been implemented.Please indicate whether the State party has considered conducting an assessment of the needs of torture victims in terms of rehabilitation, in cooperation with specialized civil society organizations.

Article 15

24.Please provide information on the specific measures taken to ensure respect, both in law and in practice, for the principle of the inadmissibility of evidence obtained through torture. Please also provide examples of any cases that have been dismissed by the courts owing to the introduction of evidence or testimony obtained through torture or ill-treatment.

Article 16

25.Please provide updated information on the measures taken to ensure that private security firms are registered, as required by law, and that their activities are monitored.Please provide statistical information on the number of lynchings reported during the period under review, disaggregated by the sex, age and ethnic origin or nationality of the victims.Please also provide information on the measures in place to prevent lynching and on the investigation and prosecution of such cases.

26.Please describe the measures taken to prevent and punish attacks, threats and acts of intimidation committed against judges, prosecutors and lawyers.In light of the previous concluding observations, please provide information on the measures taken to ensure the safety and physical integrity of journalists, trade unionists and human rights defenders, including members of indigenous organizations and land rights defenders, by protecting them against any acts of intimidation or violence that they may face in the course of their activities.How many complaints of acts of violence and intimidation committed against journalists, trade unionists and human rights defenders were recorded during the period under review? Please provide detailed information on the outcomes of the investigations and criminal proceedings relating to these complaints and the penalties imposed on the perpetrators of attacks, acts of intimidation and other offences committed against journalists, trade unionists and human rights defenders. Has the State party evaluated the effectiveness of the Protocol for the Implementation of Immediate and Preventive Security Measures for Human Rights Activists, the Protocol for the Investigation of Crimes Committed against Human Rights Defenders and the Unit for the Analysis of Attacks on Human Rights Defenders?Please provide information on the human, financial and material resources allocated to ensure the effective implementation of these protocols.

27.Taking into account the previous concluding observations, please describe any specific measures taken by the State party to combat violence against individuals based on their actual or perceived sexual orientation or gender identity.In particular, please provide statistical data, disaggregated by the age, sex and ethnic origin or nationality of the victims, on complaints, investigations, prosecutions and convictions in cases of hate crimes committed against lesbian, gay, bisexual, transgender and intersex persons.Please also describe the measures taken to combat the spread of “conversion therapies”.

28.Please describe the steps taken by the State party to prohibit the corporal punishment of minors in all settings.

29.Please provide information on the steps taken to decriminalize and eliminate all punitive measures related to the voluntary termination of pregnancy in cases of rape, incest and severe fetal impairment.

Other issues

30.Please indicate whether the State party has reconsidered its position regarding the possibility of abolishing the death penalty in all circumstances.Please clarify the status of Bill No. 5001, which would provide for the abolition of the death penalty, and Bill No. 5714, which would establish the death penalty for the crimes of parricide, murder, kidnapping and assassination.

31.Please provide updated information on the measures taken by the State party to respond to the threat of terrorism and indicate whether those measures have affected human rights safeguards in law and in practice and, if so, how.Please also explain how the State party has ensured that those measures are compatible with all its obligations under international law, especially the Convention. Please clarify the status of Bill No. 5992, which would expand the definition of terrorism to include the actions of criminal groups that are dedicated to “altering the public-social order of the State, thereby threatening the life and integrity of citizens, commerce, heritage, peace and social coexistence”.Please indicate what training is given to law enforcement officers in this area; how many people have been convicted under counter-terrorism legislation; what legal remedies and safeguards are available, in law and in practice, to persons subjected to counter-terrorism measures; and whether there have been any complaints of non-observance of international standards in the application of counter-terrorism measures and, if so, what the outcomes of those complaints have been.

32.Given that the prohibition of torture is absolute and cannot be derogated from, including within the framework of measures related to states of emergency and other exceptional circumstances, please provide information on any steps taken by the State party during the coronavirus disease (COVID-19) pandemic to ensure that its policies and actions comply with its obligations under the Convention. In addition, please specify the measures taken in relation to persons deprived of their liberty and in other situations of confinement, such as in homes for older persons, hospitals or institutions for persons with intellectual or psychosocial disabilities.

General information on other measures and developments relating to the implementation of the Convention in the State party

33.Please provide detailed information on any other legislative, administrative, judicial or other types of measures taken since the consideration of the State party’s previous periodic report to implement the provisions of the Convention or the Committee’s recommendations, including institutional developments, plans or programmes. Please indicate the resources allocated for this purpose and provide relevant statistical data. Please also provide any other information that the State party considers relevant.