4 Human Trafficking in Guatemala
4.4 Guatemalan National Laws against Human Trafficking
4.4.1 Law on Protection of Children and Adolescents (PINA) -‐ Decree 27-‐2003
Guatemala has also shown efforts in ratifying conventions and treaties that have been adopted by all the members of the OAS.
OAS important regional Conventions that Guatemala has ratified are:
• The Inter-American Convention to Prevent and Punish Torture, 1986
• The Inter-American Convention on International Traffic on Minors, 1994
• The Inter-American Convention on Force Disappearance of Persons, 1999 4.4 Guatemalan National Laws against Human Trafficking
The adhesion and ratification of the Protocol to Prevent, Suppress and Punish Trafficking in Persons especially Women and Children strengthened the Guatemalan legal framework. It transformed the public policy for the protection of children and women. Guatemala has four specific laws that establish the mechanisms for protection, prevention and prosecution of human right violations: 62
4.4.1 Law on Protection of Children and Adolescents (PINA) - Decree 27-2003
In a report of Fundacion Sobrevivientes it was revealed that this law could be considered the only law that focuses on human rights, gender and ethnic relevance in Guatemala.63 The Law on Protection of Children and Adolescents establishes a classification of integral policies. 64 First, they have basic policies to ensure that all children and adolescents the full enjoyment of their rights. Second, they have welfare policies to secure rights to children and adolescents in extreme situations of poverty or state of emergency. Third, they have policies to ensure special protection of any
62 De Leon Duque, “Informe de Situación de las Victimas de Trata de Personas ”, 11
63 Beatriz Eugenia Estrada Zepeda, Estudio Jurídico-Social Sobre Trata de Personas en Guatemala-Con Estudio de Casos Atendidos por la Fundación Sobrevivientes. Guatemala: Fundación Sobrevivientes, January-August 2009.
http://www.sobrevivientes.org/docs/T-estudio_trata_personas.pdf (accessed May 16, 2014).
64 Alejandro Morlachetti, Sistemas Nacionales de Protección Integral de la Infancia: Fundamentos Jurídicos y Estado de Aplicación en América Latina y el Caribe. Comisión Económica para América Latina y el Caribe (CEPAL)-UNICEF. Santiago, Chile: Naciones Unidas, January 2013.
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
threat or physical abuse, psychological and moral recovery. Fourth, warrant policies to ensure that their rights are defended by judicial or administrative proceedings.
Although Fundacion Sobrevivientes stated that the law is one of the most complete and relevant, it is lacking in practice and coordination. The Committee of the Rights of a Child states65 that the concern of an insufficient application of an Integral Protection System established by PINA law. The committee also regrets that between the State institutions there is no vertical and horizontal coordination. Likewise, the committee notes that the Ministry of Social Welfare seems to have taken the task of coordination of the Integral Protection System. Therefore, it is recommended for Guatemala to envision place a high-level authority can act as a secretary of childhood and adolescence at a ministerial level to coordinate the implementation of the Convention and its two Protocols.
4.4.2 Adoption Law- Decree 77-2007
This law is considered a legislative progress on human rights of girls and boys. Its purpose is to comply with the international standards of the Hague Convention on the protection of boys and girls. Besides, it looks to comply with the international cooperation in international adoptions. The Adoption Law contains rules necessary to realize transparent decision process, to restore children to their right to belong to a family. The National Adoption Council (NAC) was created in 2008 as a central authority for adoption proceeding under the Hague Convention.
An investigation by the International Commission against Impunity in Guatemala (CICIG) on domestic and international adoption proceedings was published.
Adoptions were studied during the transition period in 2007, when the Law was on effect and the first adoptions processed under regulations governing the law. The
65 Morlachetti, “Sistemas Nacionales: de Proteccion Integral de la Infancia: Fundamentos Juridicos y Estado de Aplicacion en America Latina y el Caribe”, 28
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
CICIG analyzed various criminal cases and identified different proceedings used by illegal networks engaged in trafficking for purpose of irregular adoption. These networks usually kidnap or buy children from their biological mothers. In some cases they force, threaten and coerce the mothers into giving their children up for adoption.
Traffickers are associated with notaries who process the adoptions. Children are sometimes kidnapped and given fake identity papers. Both notaries and the kidnappers are associated with doctors, registrars of vital statistics in different municipalities and DNA laboratories where relevant tests are falsified.
Although under the Adoption Law 69 children were given on adoption and three were sent abroad. NAC suspended international adoptions in 2008 after the results of adoption proceeding during the transition period showed irregularities as mentioned above. There is doubt about the legitimacy of international adoption proceedings and NAC decided to give priority to domestic adoptions.
In early 2010, NAC reported having assisted 169 families and birth mothers in conflict with motherhood. One hundred and thirty kept their children and 34 confirmed their consent for adoption.66 Of approximately 5,295 institutionalized children the Children’s Courts have declared 559 adoptable. Two hundred and fifty three have been placed with Guatemalan families. Some 83 homes and shelters have requested authorization to operate, having complied with the requirements of the Adoption Law in that regard. Since May 2010, 111 entities have been identified of which seven have been approved and 76 are in process of receiving approval.67
66 Ilma Niederheitmann Bayo, trans. “Report on Players Involved in the Illegal Adoption Process in Guatemala since the Entry into Force of the Adoption Law (Decree 77-2007). Guatemala: CICIG-Comisión Internacional Contra la Impunidad en Guatemala, December 2010.
http://www.unicef.org.gt/1_recursos_unicefgua/publicaciones/AdoptionsReport_CICIG2010.pdf (accessed May 20, 2014).
67 Niederheitmann Bayo, trans., “Report On Players Involved In The Illegal Adoption Process in Guatemala Since The Entry Into Force Of The Adoption Law (Decree 77-2007)”, 67
‧
國立 政 治 大 學
‧
N a tio na
l C h engchi U ni ve rs it y
In conclusion this new law is a positive step for the irregularities in Guatemala’s adoption of children. However its implementation does not guarantee that irregular proceedings will cease.