In addition, the Court found violations of the following articles of the Inter-American Convention to Prevent and Punish Torture9:
Article 1 - Obligation to prevent and punish torture
Article 6 - Obligation to take effective measures to this effect
Article 8 - Right to impartial examination, investigation and criminal process of a case
The reparations phase is still in progress. A decision is expected in spring 2001.
Background context: Guatemala in 1990
The events of this case took place in the context of the 36-year Guatemalan civil war, six and a half years before the signing of the Peace Accords. The death toll during that period has been estimated at 200,00010. To quote Amnesty International’s 1990 report on street children:
“Tens of thousands of people have been victims of human rights violations in Guatemala over the past two decades. Trade unionists, academics and students, priests and catechists have been abducted, tortured and killed. Indian villagers have been seized, mutilated and shot dead. Thousands of men and women detained by the military and the police have ‘disappeared’...”11
In October 1990 Amnesty International “quoted official reports of over 240 killings in the first half of the year alone, believed to be the work of ‘death squads’ drawn from the security forces. [...] In only two of the thousands of cases of gross violations in the past four years does Amnesty International know of any charges being brought against members of the security forces allegedly responsible...”12 It is against this background of gross and systematic human rights violations in general, combined with an institutionalised culture of impunity for State actors, that the events of the present case took place.
Even today, in the wake of attempts at national healing through the work of the Commission for Historical Clarification (Comision por el Esclarecimiento Historico - CEH13) and the election in January 2000 of the apparently more ‘pro-human rights’ President Alfonso Portillo, Guatemala is still struggling unsuccessfully to “counteract the culture of violence that has remained ingrained in Central America’s most populous country. Mob violence, lynchings and incessant urban street crime have marred Mr Portillo’s term...”14.
As in any country, the reasons for children migrating to street life are individual and complex: poverty, neglect, physical, emotional and sexual abuse, abandonment, disease, disability, parental death and hope for a better future. In addition to these common criteria are added regional and country-specific factors: in the case of Guatemala in 1990, some street children were casualties of displacement and family fragmentation caused by the army counter-insurgency campaigns of the early 1980s, whilst others were refugees escaping political violence in neighbouring El Salvador and Nicaragua. Amnesty International estimated numbers of street children in Guatemala City in 1990 as totalling about 5000, aged between 5 and 1815. It is estimated that nearly all, both in 1990 and today, sniff glue or paint thinner16 and are involved in petty, ‘survival’ theft.
In terms of violence against these street children, in the first six months of 1990, “according to confidential police reports, at least 17 unidentified minors have died as a result of violence in Guatemala City... Some 20 other unidentified victims of violence listed by police as between 20 to 25 years old are believed to actually have been minors.”17 Compounding the background atmosphere of extreme violence and impunity created by the wider political events of the civil war (which sets the scene for the abduction and murder in broad daylight, and the horrific torture, mutilation and murder of the present case), was the rising crime rate in the city, attributed by the public and authorities to street children and therefore seen as ‘justifying’ harsh policing measures against them18.
Specific, documented cases of police or security forces human rights violations of street children in Guatemala in 1990, other than the present case include: a 13-year-old kicked to death; a 12-year-old fatally shot in the back of the neck whilst running away, having stolen a pair of sunglasses; a 14-year-old beaten and killed; a 12-year-old and a 15-year-old deliberately injured by attack dogs; two 14-year-olds forced to swallow the plastic bags containing their glue, left vomiting and choking; witnesses to another street child murder were beaten with heavy electric cable, forced to drink sewage water and had their glue poured on their heads and faces; 14 more incidents of severe beatings; 7 more incidents of children having their glue or paint thinner poured over their heads19 (“It’s awful, it hurts really bad. It gets in your eyes and burns; for half an hour you can’t see anything”20.)
The contextualisation of the events of this case - within a framework of both general societal violence and specific antagonism towards street children as a group - is in no way intended to minimise the suffering of these five children and youths, nor that of any other victims of such appalling contemporary (and tragically on-going) violence; nor is it intended to excuse the perpetrators of their actions. Instead it is meant to highlight the significance of the decision in this case which has contributed to the delegitimisation of State complicity and neglect in such ‘commonplace’ atrocities and has served to elevate the status of a particularly marginalised group of rights holders. This contextualisation also mirrors the extent to which the Court incorporates this same background information on street children into its findings. The case thus has an obvious symbolic and representative value for street children in general in terms of the legal precedents set.