20
in recent years. There is also another percentage who form the basis for organized
crime, because these youths become small-time criminals.
Impunity is a widespread topic in Guatemala, for both adults and children. 87% of
cases involving children are not resolved, even though the situation has improved
slightly in recent years.
The Minors Code currently in force dates from 1979 and there are a series of reports
claiming that this law is not consistent with the Convention on the Rights of the
Child. The Code is based on the concept of irregular situation, and according to this
concept, the child victim of some act of abuse, violation or negligence and the youth
who has allegedly broken the law, are in the same situation. As an irregular conduct
is not codified, this leaves the door open to arbitrariness, for example, as regards
detentions. In Guatemala, adults are merged with adolescents and with child victims
at various points of the legal process and this is completely contrary to international
standards.
Congress has delayed indefinitely the entry into force of the Children and Youth
Code, adopted by consensus in 1996, owing to the public discussion generated by
whether this law respects paternal authority and whether it is consonant with
Guatemalan cultural values. The proposed law complies with the standards of
protection established in both Article 19 of the American Convention and the
Convention on the Rights of the Child. There is consensus on this point and applying
the law would be one of the most important strategic steps for the protection of the
rights of the child in Guatemala.
Regarding the recommendations that he would make for improving the situation in
Guatemala, the expert stated: first, a profound legislative reform would be
necessary, commencing with the entry into force of the Children and Youth Code.
Second, greater efforts should be made in the area of social policies, above all, in the
universalization of primary education and the fight against child malnutrition. And,
third, there is a need for a policy of attention and, in particular, prevention for street
children, which should include a significant increase in the budget of the Social
Welfare Secretariat.
c)
Expert report of Emilio García Méndez, independent consultant and
former adviser to UNICEF, expert on the rights of the child
There are three countries in Latin America where we can speak of systematic
violence against the children who, from a qualitative and quantitative point of view,
are at greatest risk: Colombia, Brazil and Guatemala. It is not that there is a
deliberate policy of violation of the rights of the child from a subjective viewpoint,
but there is from an objective perspective, because the levels of social expenditure
on basic social policies for health and education are extremely low.
Guatemala has a Minors Code that was adopted in 1979. In 1990 and 1991, it
ratified and promulgated the International Convention on the Rights of the Child; as
a result, two laws regulating the same matter, which are antagonistic in nature, are
in force at the same time. From the technical and juridical point of view, it would
appear that the ratification and promulgation of the Convention has invalidated the
1979 Minors Code, but the latter is still in force because, in fact, it constitutes the
principal source of the decisions of the judges of minors. Technically, this Code is
also unconstitutional. All the general principles of law contained in the Guatemalan
Constitution and in the above-mentioned Convention are technically and