Guatemala: Requirements and procedures for lodging a report with the police; avenues of recourse for filing complaints against the police for corruption or misconduct; requirements and procedures to obtain a copy of the police report (2013-March 2015) [GTM105110.E]

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Procedures for Filing a Complaint with the Police
1.1 At the Public Ministry

The website of the Public Ministry (Ministerio Público) [also known as the District Attorney's Office (Associate 24 Mar. 2015; Associate 26 Feb. 2015a)] indicates that it is responsible for [translation] "promoting penal prosecution, directing the investigation of crime against public order, and overseeing the strict compliance of national laws" (Guatemala n.d.a). Further to investigating crimes, article 2 of the Ley Orgánica del Ministerio Público of Guatemala [no. 40-94] indicates that the function of the Public Ministry is [translation] "promoting the prosecution in court, under the powers conferred by the Constitution, the Laws of the Republic, and International Treaties and Conventions" (Guatemala 2012). Article 51 of the same law further states that [translation] "the Director of the National Police, departmental and municipal police authorities operating in the country and whichever other public or private security force" report to the Public Ministry (ibid.).

Sources indicate that individuals can report a crime to the Public Ministry (Guatemala n.d.a; Associate 26 Feb. 2015a; Associate 24 Mar. 2015). The website of the Public Ministry indicates that individuals can go to any Permanent Assistance Office (Oficina de Atención Permanente, OAP) within the Public Ministry to report a crime (Guatemala n.d.a). In correspondence with the Research Directorate, an associate at Central Law, a regional law firm with 11 offices across Central America (n.d.), stated that the OAPs are responsible for receiving public complaints and are open every day at all hours (Associate 24 Mar. 2015). The website of the Public Ministry indicates that OAPs take complaints either orally or in writing and that the person filing the report must present a personal identification document (Guatemala n.d.a). The same source indicates that the complainant is expected to provide the OAP with information related to the crime, including the parties involved, persons affected, witnesses, any evidence, as well as antecedents and consequences originating from the crime (ibid.).

1.2 At a Police Station

Sources indicate that crimes can also be reported at police stations (Canada 27 Feb. 2015; Associate 26 Feb. 2015a; Associate 24 Mar. 2015). In correspondence with the Research Directorate, an official at the Embassy of Canada in Guatemala said that "crimes that are reported at all are usually reported to local police forces" (Canada 3 Mar. 2015). The associate at Central Law stated that if an individual files a crime with the police, the police will transfer the report to the Public Ministry, but that the transfer involves an administrative process that takes approximately one month (Associate 26 Mar. 2015). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. The associate at Central Law recommended filing the complaint directly with the Public Ministry "so they can start with all the proceedings and the investigation as soon as possible" (ibid).

Sources indicate that there are emergency phone numbers to contact the police in Guatemala, which operate in a similar way as 911 (US n.d.; Canada 3 Mar. 2015). According to US governmental sources, these numbers may include: 110 (US 14 May 2014); 120 (ibid. 14 May 2014); 122 and 123 (ibid.). The official at the Embassy of Canada in Guatemala noted that the emergency police lines sometimes "do not function well" (Canada 3 Mar. 2015).

1.3 Before a Criminal Court

Without providing details, the US Department of State's Country Reports on Human Rights Practices for 2013 for Guatemala states that "[p]rivate parties may participate in the prosecution of criminal cases as plaintiffs" (US 27 Feb. 2014, 8).

In correspondence with the Research Directorate, an associate of Mario Permuth y Asociados, a Guatemalan law firm which specializes in civil, criminal, and administrative law, among others (n.d.), stated that a party who is directly affected by a crime, or a close relative, can file a querella [charge] before a criminal court in order to be "directly involved in the proceedings" (Associate 26 Feb. 2015b). The same source explained that the criminal court receives and processes the querella, and, if approved, the affected individual assists with the Public Ministry's process of investigation, while the court maintains "jurisdictional control over the case" (ibid.). The associate noted that if the party does not wish to remain involved in the process, he or she can file a denuncia [complaint] with the Public Ministry, in which case the authorities are informed of the incident but the party is not involved in the investigation process (ibid.). Corroborating and further information about querellas could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2. Procedures for Filing a Complaint Against the Police for Corruption, Misconduct, or Inaction
2.1 At the Public Ministry

Sources state that an individual can file a complaint against the police for corruption, inaction, or misconduct at the Public Ministry (Associate 24 Mar. 2015; Associate 26 Feb. 2015b; Canada 27 Feb. 2015). The associate at Central Law explained the procedure to file a complaint against the police as follows:

The individual must present his [or her] identification document and describe the facts of the complaint. ... The individual must present demonstrable evidence ensuring what act of corruption or misconduct the officials committed. The defendant has the right of defense and [to] present evidence. (Associate 24 Mar. 2015)

According to the associate at Mario Permuth y Asociados Law Firm, complaints against the police are filed at the Public Ministry and follow the same procedure as reporting other crimes (Associate 26 Feb. 2015b). The same source noted that once the complaint is filed, it is sent to the appropriate department at the Public Ministry, depending on the crime to be investigated (ibid.). According to Article 31 of the Ley Orgánica del Ministerio Público of Guatemala, the "Prosecution of Administrative Offences Office" handles investigations relating to the administrative conduct of officials and employees of the state (Guatemala 2012).

2.2 Within the National Civil Police

Sources state that the Guatemalan police force, the National Civil Police (Policía Nacional Civil de Guatemala, PNC), has its own office which investigates security force abuse called the Office of Professional Responsibility (Oficina de Responsabilidad Profesional, ORP) (DCAF 16 Jan. 2015; US 27 Feb. 2014, 2). According to Country Reports 2013, "[i]n cases in which police forces were implicated, the ORP is charged with internal investigations; the Public Ministry is responsible for external investigations" (ibid., 5). The same report states that from January to October 2013, the ORP received 1,461 complaints of police misconduct (ibid., 6). Further information on the ORP, including information about how claims are investigated and resolved, could not be found within the time constraints of this Response.

2.3 With the Office of the Prosecutor for Human Rights

The website of the Office of the Prosecutor for Human Rights (Procurador de los Derechos Humanos, PDH), the government institution that investigates human rights violations in Guatemala, indicates that they receive complaints on human rights violations committed by [translation] "any" person or public servant (Guatemala n.d.b). A report produced by the PDH indicates that 2,767 complaints on violations of civil and political rights were filed at the PDH between January and June 2014 (Guatemala 2014a, 2). The violation of rights included order and security (1,123), due process (365), access to public information (226), and "personal dignity" (144) (ibid.). Further information about the PDH, including the procedures to file a complaint against the police with the PDH and their effectiveness in addressing complaints, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Procedures for Obtaining Copies of Police Reports

Sources state that individuals who file complaints to the police or Public Ministry may obtain copies of their complaint (Associate 24 Mar. 2015; Associate 26 Feb. 2015a; Canada 27 Feb. 2015). The associate of Permuth y Asociados Law Firm stated that a "simple" report of a verbal complaint or a stamped copy of a written complaint is usually given to the individual immediately after they file it (Associate 26 Feb. 2015a). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response. According to the official at the Embassy of Canada in Guatemala, the police do not provide copies of the police reports (Canada 27 Feb. 2015). The same source stated that the person should request the copy from the Public Ministry, who verifies the complaint and then provides the requester with a copy (ibid.).

The associate of Permuth y Asociados Law Firm stated that individuals who reported a crime may receive a copy, but that these documents "are considered confidential to the parties and their attorneys" (Associate 26 Feb. 2015b). The same source added that an individual who is abroad can obtain a copy of their report "by appointing someone with a power of attorney" (Associate 26 Feb. 2015b). According to the Canadian embassy official, third parties cannot obtain a copy of the police report and a third party would only be able to obtain a copy through a lawyer (Canada 27 Feb. 2015).

4. Effectiveness of Complaints Mechanisms

The official from the Embassy of Canada to Guatemala stated that "[m]any people do not bother to report crime or fraud as the authorities here do very little in terms of investigating and prosecuting, due to limited resources and/or corruption" (Canada 3 Mar. 2015). Similarly, the associate at Permuth y Asociados said that there are many complaints that are not investigated due to police corruption and other "influences" (Associate 26 Feb. 2015b). Several sources state that impunity rates are high (DCAF 16 Jan. 2015; US 14 May 2014; Human Rights Watch 2014). According to a report published by the Geneva Centre for the Democratic Control of Armed Forces (DCAF), "an international foundation whose mission is to assist the international community in pursuing good governance and reform of the security sector" (n.d.), the rate of impunity is estimated to be at around 90 percent and may be as high as 98 percent for crimes such as homicide, "with only two out of 100 cases making it to court" (DCAF 16 Jan. 2015). The US Department of State's Guatemala 2014 Crime and Safety Report states that 70 percent of murders in Guatemala City went unpunished in 2012, while the rate was 97 percent in 2010 (US 14 May 2014, 8).

According to Freedom House, between January and November 2013, authorities registered over 1,500 complaints against the police and over 300 current or former police officers were arrested for criminal matters (Freedom House 28 Jan. 2014). According to Country Reports 2013, the ORP and the Public Ministry reported that "numerous complaints" were made against the police for kidnapping during the year of the report (US 27 Feb. 2014, 6). The same source states that police impunity for criminal activity is a "serious problem" and that authorities lack "effective mechanisms to investigate and punish abuse and corruption" among the police and other security forces (ibid. 5). The International Crisis Group, an NGO which produces research in the areas of conflict prevention and resolution (n.d.), states that "often citizens distrust and fear the police -- widely dismissed as inefficient, corrupt, and abusive -- as much as the criminals" (20 Jul. 2012). According to the DCAF, the Guatemalan police force "has a long and detailed history of corruption and links to organized crime," including "instances of police operating their own criminal bands, dedicated primarily to kidnapping and extortion" (16 Jan. 2015). Sources also state that the Guatemalan police force is underfunded, understaffed and insufficiently trained (US 14 May 2014, 8; International Crisis Group 20 Jul. 2012).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

References

Al Jazeera. 11 August 2013. "How to Reduce Crime in the World's Most Violent Country." <http://www.aljazeera.com/indepth/opinion/2013/08/2013810135741207607.html> [Accessed 24 Mar. 2015]

Associate, Central Law. 26 March 2015. Correspondence with the Research Directorate.

_____. 24 March 2015. Correspondence with the Research Directorate.

Associate, Permuth y Asociados. 26 February 2015a. Correspondence with the Research Directorate.

_____. 26 February 2015b. Correspondence with the Research Directorate.

Canada. 3 March 2015. Embassy of Canada in Guatemala. Correspondence from an official to the Research Directorate.

_____. 27 February 2015. Embassy of Canada in Guatemala. Correspondence from an official to the Research Directorate.

Central Law. N.d. "Who is Central Law?" <http://www.central-law.com/EN/Central-Law> [Accessed 25 Mar. 2015]

Freedom House. 2014. "Guatemala." Freedom in the World 2014. <https://freedomhouse.org/report/freedom-world/2014/guatemala#.VRLeb_nF-3k> [Accessed 24 Mar. 2015]

The Geneva Centre for the Democratic Control of Armed Forces (DCAF). 16 January 2015. Guatemala Country Profile. <http://issat.dcaf.ch/Home/Community-of-Practice/Resource-Library/Country-Profiles/Guatemala-Country-Profile> [Accessed 26 Feb. 2015]

_____. N.d. "About Us." <http://www.dcaf.ch/About-Us> [Accessed 26 Mar. 2015]

Guatemala. 2014a. Procurador de los Derechos Humanos. Denuncias recibidas con datos de sede central y auxiliaturas departamentales a junio de 2014. <http://www.pdh.org.gt/archivos/descargas/Investigacin%20en%20DDHH/Estadsticas/a_junio_2014_denuncias_recibidas_en_sede_ cetral_y_auxiliaturas_jl.pdf> [Accessed 2 Apr. 2015]

_____. 2014b. Procurador de los Derechos Humanos. Informe anual circunstanciado: situacion de los derechos humanos y memoria de labores. <http://www.dip.mindef.mil.gt/inf_2014.pdf> [Accessed 2 Apr. 2015]

_____. 2012. Ley Orgánica del Ministerio Público (no. 40-94). <https://www.oas.org/juridico/mla/sp/gtm/sp_gtm-mla-leg-publico.pdf> [Accessed 24 Mar. 2015]

_____. N.d.a. Ministerio Público de Guatemala. "Preguntas Frecuentes." <https://www.mp.gob.gt/preguntas-frecuentes/> [Accessed 26 Feb. 2015]

_____. N.d.b. Procurador de los Derechos Humanos. "Funciones." <http://www.pdh.org.gt/procurador/funciones.html> [Accessed 2 Apr. 2015]

Human Rights Watch. 2014. "Guatemala." World Report 2014. <http://www.hrw.org/world-report/2014/country-chapters/guatemala> [Accessed 24 Mar. 2015]

International Crisis Group. 20 July 2012. "Police Reform in Guatemala: Obstacles and Opportunities. Executive Summary and Recommendations" <http://www.crisisgroup.org/~/media/Files/latin-america/Guatemala/043-police-reform-in-guatemala-obstacles-and-opportunities.pdf> [Accessed 27 Feb. 2015]

Mario Permuth y Asociados. N.d. "The Firm." <http://www.permuth.com/newlook/thefirm.htm> [Accessed 25 Mar. 2015]

United States (US). 14 May 2014. Department of State. Guatemala 2014 Crime and Safety Report. <https://www.osac.gov/pages/ContentReportDetails.aspx?cid=15656> [Accessed 26 Feb. 2015]

_____. 27 February 2014. Department of State. "Guatemala." Country Reports on Human Rights Practices for 2013. <http://www.state.gov/documents/organization/220657.pdf> [Accessed 26 Feb. 2015]

_____. N.d. Embassy of the United States in Guatemala. "Crime and Public Safety." <http://guatemala.usembassy.gov/acs_crime_safety.html> [Accessed 24 Mar. 2015]

Additional Sources Consulted

Oral sources: The following were unable to provide information within the time constraints of this Response: Guatemala Human Rights Commission.

Attempts to contact the following were unsuccessful within the time constraints of this Response: Bermejo y Asociados Law Firm; Guatemala – National Civil Police; Larios y Asociados Law Firm; Mijangos y Asociados Law Firm; Researcher in the Department of Justice, Law and Criminology at American University.

Internet sites, including: Americas Society – Council of the Americas; Amnesty International; Brookings Institution; Canada – Embassy in Guatemala, travel.gc.ca; Guatemala – Embassy in Ottawa; Human Rights Quarterly; Inter-American Dialogue; The Organization of American States; Reuters; Transparency International; United Nations – The International Commission Against Impunity in Guatemala; United States – Agency for International Development, Central Intelligency Agency; Woodrow Wilson Center for Scholars.