In the case of Pedro Tau Cac, the modus
operandi was to abduct the victim first and then take him to a place
unknown. Days later, the body
was found in a public place. In
the case of Remigio Morales and Rafael Sánchez, the victims’ bodies
showed obvious signs of having been tortured before being executed.
The modius operandi in
the cases alleging attempted extrajudicial execution are those
characteristic of extrajudicial executions in the 1990-1991 period.
Catalino Chochoy, José Corino and Abelino Baycaj were gravely
injured when an attempt was made to impress them into military service.
In the case of Antulio Delgado, the accused perpetrators are
military commissioners. Juan
Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso
Galicia Gutiérrez were doing farm work when members of the PAC appeared
dressed in civilian clothes.
to the records in the Commission’s possession, in not one case were the
events properly investigated, the culprit(s) punished or the victims
compensated. This, too, is
consistent with the chronic inability of the juridical branch of
government to respond with proper investigation, prosecution and
punishment of the human rights violations during the period in question.
the Inter-American Court has held, “it is not necessary to determine the
perpetrators’ culpability or intentionality in order to establish that
the rights enshrined in the Convention have been violated, nor is it
essential to identify individually the agents to whom the acts of
violation are attributed. The
sole requirement is to demonstrate that the State authorities supported or
tolerated infringement of the rights recognized in the Convention.
Moreover, the State’s international responsibility is also at
issue when it does not take the necessary steps under its domestic law to
identify and, where appropriate, punish the authors of such violations.”
cases 10.626, 10.627 and 11.198, the fifteen people who were
extrajudicially executed fit the pattern of summary executions used in
Guatemala in 1990 and 1991. These
executions were the work of Civil Patrolmen or military commissioners who,
as analyzed in previous paragraphs, were agents of the State.
Cases 10.799, 10.751 and 10.901, involving attempted extrajudicial
executions that resulted in serious injuries, also fit the pattern and
were also carried out by members of the Civil Patrols or military
commissioners, in other words, agents of the State.
This practice was inflamed by the atmosphere of impunity at the
time, a consequence of the judiciary’s unwillingness to conduct
effective and serious inquiries into the human rights violations reported
to it. On the basis of direct
and circumstantial evidence, therefore, the Commission concludes that the
State is responsible for the acts denounced in all these cases and will
proceed to detail the nature and specific consequences of that
Considerations of law
right to life
4(1) of the American Convention on Human Rights declares that “Every
person has the right to have his life respected.
This right shall be protected by law and, in general, from the
moment of conception. No one
shall be arbitrarily deprived of his life.”
International human rights law, both conventional and customary,
and the 1985 Guatemalan Constitution guarantee the right to life.
right to life is of paramount importance because it is the essential
premise for the other rights. The
right to life is fundamental within the Convention’s system of
guarantees; therefore, its provisions must be strictly interpreted.
Protection of this right has two dimensions: on the one hand, it
presupposes that no one may be arbitrarily deprived of life; on the other
hand, it requires that States take the measures necessary to guarantee
The State’s duty must be to guarantee the inviolability of the
life of all persons subject to its jurisdiction and the right not to be
arbitrarily deprived of life. This
implies reasonable prevention of situations that could lead to the
suppression of that right. Due
diligence makes reasonable prevention the duty of States in those
situations that could, even by omission, lead to the suppression of this
The duties that the right to life creates for the State are both
preventive and corrective in nature.
In cases of extrajudicial executions, Guatemala did not provide
either. The cases of
extrajudicial execution covered in this report show that the State did not
protect these victims against the arbitrary executions committed by its
agents or by those acting in the State’s name or with its acquiescence.
The pattern of extrajudicial executions at that time, which posed a
grave threat to the right to life, was allowed in these cases and in some
sense incited by the unwillingness or inability of the authorities to
react to the situation.
The system of legal guarantees that the State should have put in
motion to control the conduct of the State agents implicated was neither
adequate nor effective; it was illusory.
The State did not react as it should have to investigate those
violations. International and
inter-American human rights law has established that any violation of the
right to life requires that the State undertake a judicial investigation
by the criminal court designated to prosecute, try
and punish those found responsible for those violations.
In some cases where the State failed to properly investigate the
complaints of arbitrary killings, it was found to have incurred
international responsibility for violation of the right to life, even
though the circumstances surrounding the killings were not fully
As this analysis will show, the information supplied by the State
in connection with the cases under study does not indicate that effective
investigations were ever undertaken to ascertain the facts or identify
those responsible for the killings.
In the case of persons deprived of their freedom prior to their
execution, “a death in any type of custody should be regarded as prima
facie a summary or arbitrary execution and appropriate investigations
should immediately be made to confirm or rebut the presumption.”
It is the Commission’s view that in cases 10,626, 10,627 and
11,198, which involve a total of fifteen people, all were executed
extrajudicially, some immediately and others within hours or days of being
seized. The perpetrators were members of the Civil Patrols, military
commissioners or private persons acting with either the State’s
tolerance or consent. The
killings were part of a pattern of extrajudicial executions previously
identified by this Commission. The
State failed to take the measures needed to end the practice of summary
executions used at that time and did not respond to these specific
executions with the necessary due diligence.
Hence, the Commission concludes that under Article 4 of the
American Convention, the State of Guatemala is responsible for violation
of the right to life of Remigio Domingo Morales, Rafael Sánchez, Pedro
Tau Cac, José María Ixcaya Pixtay, José Vicente García, Mateo Sarat
Ixcoy, Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz,
Manuel Ajiataz Chivalan, Catrino Chanchavac Larios, Miguel Tiu Imul,
Camilo Ajquí Gimon and Juan Tzunux Us.
right to personal liberty
lawful deprivation of freedom must be ordered and carried out by the
proper authority and must be done in accordance with the substantive and
procedural requirements of domestic law and the American Convention.
Article 7(2) of the American Convention provides that “No one
shall be deprived of his physical liberty except for the reasons and under
the conditions established beforehand by the constitution of the State
Party concerned or by a law established pursuant thereto.” Article 7(3)
states that “No one shall be subject to arbitrary arrest or
The allegations in the cases of Remigio Domingo Morales, Rafael Sánchez,
Pedro Tau Cac and Camilo Ajqui Gimon are that the victims were unlawfully
apprehended. These victims
were alleged to have been held in custody for periods ranging from one
hour to several days. There
is no record or information to suggest that any of the victims was taken
into custody by order of a competent authority or in accordance with the
law. Quite the opposite, the
events described follow the modus operandi typical of many summary executions in that period.
abduction of a person is an arbitrary deprivation of liberty, an
infringement of a detainee’s right to be taken without delay before a
judge and to invoke the appropriate procedures to review the legality of
The right to petition the court to determine the lawfulness of an
arrest is a fundamental guarantee of the detainee’s constitutional and
human rights when deprived of his freedom by State agents. “[H]abeas
corpus performs a vital role in ensuring that a person’s life and
physical integrity are respected, in preventing his disappearance or the
keeping of his whereabouts secret and in protecting him against torture or
other cruel, inhumane, or degrading punishment or treatment.” Although exactly how long each victim was held in custody
before being executed has never been determined, the nature of these
detentions was such that the victims were effectively denied access to
even the most essential safeguard of judicial protection.
The Commission therefore concludes that the State violated Article
7 of the American Convention and is responsible for the acts of its agents
or of persons acting in its name or with its acquiescence, by unlawfully
depriving Remigio Domingo Morales, Rafael Sánchez, Pedro Tiu Tac and
Camilo Ajqui Gimon of their freedom and denying them access to judicial
right to humane treatment
5(1) and (2) of the American Convention on Human Rights state that
“[e]very person has the right to have his physical, mental, and moral
integrity respected” and that
“[n]o one shall be subjected to torture or to cruel, inhuman, or
degrading punishment or treatment…”
the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, and
Camilo Ajqui Gimon, the victims were secretly abducted and thus denied
access to any form of help or protection for the time they were held,
which ranged from one hour to several days. By itself, deprivation of
freedom under such conditions produces anxiety and suffering.
In these cases, there are signs that the victims had been beaten
before being executed. In
case 10.626 (Remigio Domingo Morales and Rafael Sánchez), “they
were stoned.” The State never challenged the petitioners’ descriptions
of the marks on the bodies or the allegations of torture.
From the way in which these victims were tortured and the marks on
their bodies, the intention was not to conceal these facts but rather to
send a message to those who found the bodies, to family and to anyone else
who saw the bodies. As was
noted in the section on the characteristics of the executions during the
period in question, the objective of the torture was not just to make the
victims suffer but also to destroy their human dignity in the eyes of
family and community and to arouse fear in anyone who knew about it.
in the case of the right to life, effective observance of the prohibition
of the use of torture requires effective investigation of any complaint of
inhumane treatment. At the
time the events occurred, Guatemala was bound by the Inter-American
Convention to Prevent and Punish Torture.
It had deposited its instrument of ratification on January 29,
1987; the Convention entered into force for all parties on February 28,
1987. Under Articles 1 and 6,
Guatemala undertook to prevent and punish any torture that might occur
within its jurisdiction. Further,
Article 8 provides that:
States parties shall guarantee that any person making an accusation of
having been subjected to torture within their jurisdiction shall have the
right to an impartial examination of his case.
if there is an accusation or well-grounded reason to believe that an act
of torture has been committed within their jurisdiction, the States
Parties shall guarantee that their respective authorities will proceed
properly and immediately to conduct an investigation into the case and to
initiate, whenever appropriate, the corresponding criminal process.
The circumstances of these cases and general descriptions of the
marks on the victims’ bodies are consistent with the treatment that
victims during the period received, i.e., they were detained first and
then extrajudicially executed. The
State did not dispute the fact that the victims had been tortured, and did
not present any information of proof to show that the complaints were
investigated, as required under the American Convention and the
Inter-American Convention to Prevent and Punish Torture.
Consequently, while the precise nature of the torture and the
identity of those responsible in these four cases have not been determined
at the domestic level, the Commission finds sufficient evidence to
conclude that the State is responsible for the acts of its agents or
persons who were acting with the State’s tolerance or acquiescence when
they violated the rights of Remigio Domingo Morales, Rafael Sánchez,
Pedro Tau Cac and Camilo Ajqui Gimon to humane treatment and to be free
from torture, in accordance with Article 5 of the American Convention and
Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish
As indicated previously, the modus
operandi of the attempted extrajudicial executions was the same as
that used in extrajudicial executions during the 1990-1991 period. The victims of the attempted extrajudicial executions were
gravely injured; had it not been for the prompt assistance they received
from family members or friends who took them to the hospital, they would
have died and their case would have been classified as an extrajudicial
execution. Therefore, the
State is responsible for violation of the right that Catalino Chochoy, José
Corino, Abelino Baycaj, Antulio Delgado, Juan Galicia Hernández, Andrés
Abelino Galicia Gutiérrez and Orlando Adelso Galicia Gutiérrez have to
humane treatment, by virtue of acts committed by State agents or private
citizens acting with the State’s tolerance or consent, acts that fit the
pattern of extrajudicial executions already identified by the Commission.
of the child
Article 19 of the American Convention on Human Rights provides that
“Every minor child has the right to the measures of protection required
by his condition as a minor on the part of his family, society, and the
state.” Of the victims
named in this report, two are minors: Rafael Sánchez (15, the victim of
an extrajudicial execution) and Orlando Galicia Gutiérrez (15, the victim
of an attempted extrajudicial execution).
Respect for children’s human rights must be a paramount concern
for every State. Accordingly,
Article 19 establishes special protection for children, by virtue of their
vulnerability as minors.
In the instant case, the State failed to honor the guarantees
established in Article 19 of the American Convention, to the detriment of
Rafael Sánchez and Orlando Galicia Gutiérrez .
right to judicial protection and judicial guarantees
25(1) of the American Convention provides that “[e]veryone has the right
to simple and prompt recourse, or any other effective recourse, to a
competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention…”
It includes the principle of the effectiveness of the procedural
instruments or means. It is
not sufficient that the State’s legal system formally recognizes the
remedy in question; instead, the State has to develop the possibilities of
an effective remedy that must be substantiated in accordance with the
rules of due process of law.
Article 8(1) reads as follows:
person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously established by law, in the substantiation of any accusation of
a criminal nature made against him or for the determination of his rights
and obligations of a civil, labor, fiscal, or any other nature. ….
As the Court has explained, Articles 25, 8 and 1(1) are mutually
Article 25 in relation to Article 1(1) of the American Convention obliges
the State to guarantee to every individual access to the administration of
justice and, in particular, to simple and prompt recourse, so that, inter
alia, those responsible for human rights violations may be prosecuted
and reparations obtained for the damages suffered. … Article 25 is one
of the fundamental pillars not only of the American Convention, but of the
very rule of law in a democratic society ….
That Article is closely linked to Article 8(1), which provides that
every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, for
the determination of his rights, whatever their nature.
The State’s obligations must be fulfilled, not through formal
measures but through substantive measures. Thus, the remedies the State
offers “must be truly effective in establishing whether there has been a
violation of human rights and in providing redress.”
While the guarantees protected under Articles 8 and 25 are
different, generalized basic flaws in the administration of justice
thwarted their application during the period under study.
As noted earlier, the administration of justice at the time was so
defective that it was virtually inoperable.
In most cases, the investigating or judicial police never identified the
perpetrators; those who were identified were rarely brought to trial.
The few cases in which a lower court guilty verdict was obtained
were quashed on appeal.
“[I]n cases having a political background, almost no conviction by the
trial judge in first instance is upheld on appeal and becomes final.
Clearly, with such results, the population has little faith in the
proper administration of justice.”
Complainants and witnesses in human rights cases were frightened out of
participating in court proceedings by threats or intimidation or by the
fate that had befallen those who did become involved in human rights
cases. Judges refused to
investigate human rights violations for fear that what had happened to
judges who had investigated previous human rights cases would happen to
The State’s unwillingness or inability to respond to the serious
violations was also evident and exacerbated by the deep-seated structural
flaws in the administration of justice.
The general finding of the Commission for Historical Clarification
failure of the administration of justice in protecting human rights during
the internal armed conflict has been clearly and fully established, based
on the thousands of violations … that were never investigated,
prosecuted or punished by the State. … In general, the judicial branch of government refrained from
acting on basic procedural appeals to curb the administration in the face
of the serious violations of personal liberty and security….
On numerous occasions, the courts were directly answerable to the
executive branch…. All this
left the public completely defenseless against the abuses of power and
caused it to regard the judiciary as a tool for the defense and protection
of the powerful. The court
has limited or denied protection of fundamental rights, especially those
of the victims of egregious human rights violations.
Persons seeking protection from the courts against human rights
violations under the conditions prevailing at that time did not have the
simple, prompt and effective recourse that the American Convention
requires. While remedies were
there in theory, in practice they were illusory inasmuch as they did not
produce the results for which they were theoretically conceived.
Under the American Convention, when a protected right or freedom
has been violated, “[t]he State has a legal duty … to use the means at
its disposal to carry out a serious investigation … to identify those
responsible, to impose the appropriate punishment and to ensure the victim
At the same time, the victim or his next-of-kin has the right to
seek judicial protection and reparations.
The victim and/or his next-of-kin have the right to a judicial
investigation by a criminal court to determine who is responsible for the
violations and to impose punishment.
The investigation “must be undertaken in a serious manner and not
as a mere formality preordained to be ineffective.
An investigation must have an objective and be assumed by the State
as its own legal duty, not as a step taken by private interests that
depends upon the initiative of the … family … without an effective search for the truth by the
As the Commission has noted in previous cases, the Principles of
the Effective Prevention and Investigation of Extra-legal, Arbitrary or
Summary Executions, adopted by the United Nations Economic and Social
Council in resolution 189/65, explain what is required in cases of
In such cases, the investigation must establish the cause, manner
and time of death, the person responsible, and the procedure or practice
that could have provoked it. Also, a proper autopsy must be conducted, all material and
documentary evidence must be compiled and analyzed, and statements taken
from witnesses. The
investigation must distinguish between death by natural causes, accidental
death, suicide and homicide.
In the specific cases under study, while the State reported that
court proceedings were pending, it did not for all practical purposes
report any specific investigative measure, much less results.
The State virtually did not present any documentary evidence of the
proceedings it claimed. In
one case, it indicated that the prosecutors and judges had requested
certain measures, but did not indicate whether those measures had been
implemented and, if so, to what effect.
In the great majority of these cases, the information that the
Commission has in its possession indicates simply that judicial
proceedings were instituted and are still in the investigative stage.
According to the information in the Commission’s possession, none
of the court proceedings resulted in a final decision that clarified the
complaints brought and convicted and sentenced someone for the deaths of
the 15 victims of extrajudicial execution and the seven victims of
attempted extrajudicial execution. The Commission has stated that the
obligation to investigate is not breached merely because no one was
convicted in a case or because, despite the efforts made, the facts could
not be established. However, in order to establish in a convincing and credible
manner that this outcome was not the product of a mechanical
implementation of certain procedural formalities, the State must show that
it carried out an immediate, exhaustive, serious and impartial
In the present cases, the State has not met this burden of proof.
The victims’ families had and have a right to know what happened
to their loved ones.
As the victims’ heirs, they also had and have a right to use that
information to exercise their right to compensation from the State.
“The rights of victims or their families to receive adequate
compensation is both a recognition of the State’s responsibility for the
acts committed by its personnel and an expression of respect for the human
For the reasons explained at length earlier in this report
concerning the judiciary’s unwillingness and inability to take action on
human rights violations during the period in question, the Commission
concludes that in the specific cases under study, the judicial proceedings
instituted were not conducted by independent and impartial courts.
Moreover, nine or ten years have passed since proceedings were
first instituted, but no real conclusion has been reached.
The Commission therefore considers that the reasonable time of
which the Convention speaks has long since passed.
Consequently, because there was no effective investigation in these
cases, and given other flaws in the Guatemalan administration of justice,
the Commission concludes that the next-of-kin did not enjoy the necessary
guarantees of due process in the determination of their rights.
Impunity is the result of “the failure to investigate, prosecute,
take into custody, try and convict those responsible for violations.”
By virtue of the interrelated guarantees upheld in Articles 25, 8
and 1(1) of the American Convention, the State has the duty “to use all
the legal means at its disposal to combat [impunity], since [it] fosters
chronic recidivism of human rights violations, and total defenselessness
of victims and their relatives.”
As the United Nations Special Rapporteur on executions has
emphasized, “Impunity continues to be the principal cause of the
perpetuation and encouragement of violations of human rights, and
particularly extrajudicial, summary or arbitrary executions.”
In the instant cases, it is clear from the information received that the
State did not use the means at its disposal to conduct an effective
investigation that could be the basis for prosecuting and punishing those
responsible. The State,
therefore, is responsible for having allowed these violations to go
unpunished and has thus violated Articles 8 and 25 of the American
State’s obligation to respect and guarantee individual rights
analysis of the cases covered in this report shows that by its violations
of the human rights upheld in Articles 4, 5, 7, 8, 19 and 25 of the
Convention and in Articles 1, 6 and 8 of the Inter-American Convention to
Prevent and Punish Torture, Guatemala has failed to discharge its
obligation under Article 1(1) of the American Convention to “respect the
rights and freedoms recognized [t]herein and to ensure to all persons
subject to [its] jurisdiction the free and full exercise of those rights
the first obligation of the States, flowing from Article 1(1) of the
Convention, is to respect the rights and freedoms of all persons subject
to its jurisdiction. The
Court has held the following where this obligation is concerned: “under
international law a State is responsible for the acts of its agents …
and for their omissions, even when those agents act outside the sphere of
their authority or violate internal law.”
Furthermore, “in principle, any violation of rights recognized by
the Convention carried out by an act of public authority or by persons who
use their position of authority is imputable to the State.”
An illegal act which “violates human rights and which is
initially not directly imputable to a State (for example, because it is
the act of a private person or because the person responsible has not been
identified) can lead to international responsibility of the State, not
because of the act itself, but because of the lack of due diligence to
prevent the violation or to respond to it as required by the
this reasoning, the Commission concludes that the extrajudicial executions
of the victims whose cases are covered in this report were committed by
agents of the State or by private citizens acting with the State’s
acquiescence or tolerance, as part of a State practice of extrajudicial
executions. In four of the cases under study, the bodies of the victims
showed signs of having been tortured by their captors.
The acts or omissions of those agents and those of the police and
judicial personnel who prevented the families from exercising their right
to know the truth of what had happened and to seek a judicial remedy, are
attributable to the State.
second obligation stipulated in Article 1(1) is to ensure the free and
full exercise of the rights and freedoms recognized in the Convention.
States parties have an obligation to organize the “governmental
apparatus and, in general, all the structures through which public power
is exercised, so that they are capable of juridically ensuring the free
and full enjoyment of human rights. As
a consequence of this obligation, the States must prevent, investigate and
punish any violations of the rights recognized by the Convention.”
Faced with an allegation of extrajudicial execution or attempted
extrajudicial execution, the State has an obligation to investigate the
facts and identify and punish those responsible.
In the cases covered in this report, those basic obligations were
not honored; worse still, the State used its structure to carry out a
practice of extrajudicial executions during the period in question.
The Commission therefore concludes that the State has violated
Article 1(1) of the Convention because it did not ensure the exercise of
the rights and guarantees of the victims named in all the cases included
in this report.
DEVELOPMENTS FOLLOWING THE ARTICLE 50 REPORT
On December 8, 2000, under the terms of Article 50 of the American
Convention, the Commission adopted Report 117/00 in connection with this
case. The report was transmitted to the Guatemalan State on December 22,
2000, along with a request for it to provide information, within the
following two months, about the steps taken to comply with the
On March 2, 2001, after the period granted by the Commission had
expired, the State of Guatemala provided information about the situations
of only four victims (José María Ixcaya Pixtay, Remigio Domingo Morales,
Rafael Sánchez, Catarino Chochoy, and Abelino Bayjac) from the 22 covered
by this report. The information submitted by the Guatemalan State is
generic in nature, fails to contribute anything new, and does not describe
steps taken to compensate the victims. For example, it states that:
Respectfully and as agreed by the Commission for Strengthening Justice, we once again transmit to you the information available to COPREDEH about certain cases in which we understand that proceedings have halted for different reasons and at different points within the justice system.
MARÍA IXCAYA PIXTAY
May 1, 1990, in Pojopil canton, Sololá municipality, Mr. José María
Ixcaya Pixtay, a member of the Runujel Junam Ethnic Communities council
(CERJ), was murdered. The incident took place as Mr. Ixcaya was on his way
to Guatemala City to participate in a Labor Day parade.
case was heard by the First-Instance Criminal Instructional Court of Sololá;
the proceedings, with the first magistrate presiding, were classified as
Nos. 402 and 628-90, in which Jesús Chopén and Bernardino Samines were
accused of the crimes of murder and threatening behavior against . . .
José María Ixcaya Pixtay (deceased).
trial documents contain a statement made by Mrs. Marcela Guarcas Morales,
the widow of the deceased, who, in giving that statement, made no formal
accusations against any specific person.
September 21, 1990, Mr. Jesús Chopén was brought before the presiding
judge, investigated, and charged with murdering José María Ixcaya Pixtay
and making threats against Pedro Ixcaya Cuc.
September 19, 1990, he was arrested for murder at the orders of the
First-Instance Criminal Instructional Court.
October 4, the investigating judge revoked the prison order against Mr.
Jesús Chopén and ordered his release on his own recognizance because
there was insufficient evidence to indicate his guilt; as a precautionary
measure, the judge placed him under a judicial confinement order.
competent authorities’ efforts to locate the other accused, Bernardino
Samines, and take a statement from him in order to clear up his legal
situation have, to date, been fruitless.
date the accused have not been tried because the victims’ relatives
failed to make formal accusations against them; consequently, the public
prosecution service did not continue with its investigation of the case
because of insufficient evidence.
considering the information submitted by the Guatemalan State, the
Commission holds that in addition to saying nothing about the vast
majority of this case’s victims, it also confirms the conclusion reached
in this report: namely, that the State of Guatemala has not conducted an
effective investigation to cast light on the incidents that affected the
victims and to judge and punish the guilty.
The Commission concludes that the State of Guatemala has not
complied with the recommendations set forth in Report 117/00 of December
22, 2000; and the recommendations set forth in its report 26/01 of March
6, 2001; it thus reaffirms its conclusions and reiterates its
Based on the above analysis, the Commission confirms its conclusion
that the facts prompting the petitions are true and that the State is
responsible for violating the following rights: (1) the right to life
recognized in Article 4 of the American Convention, in the cases of
Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, José María
Ixcaya Pixtay, José Vicente García, Mateo Sarat Ixcoy, Celestino Julaj
Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz
Chivalan, Catrino Chanchavac Larios, Miguel Tiu Imul, Camilo Ajquí Gimon
and Juan Tzunux Us; (2) the right to personal liberty recognized in
Article 7 of the American Convention, in the cases of Remigio Domingo
Morales, Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui Gimon; (3) the
right to humane treatment recognized in Article 5 of the American
Convention and Articles 1, 6 and 8 of the Inter-American Convention to
Prevent and Punish Torture, in the cases of Remigio Domingo Morales,
Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui Gimon, victims of
extrajudicial execution, and the right to respect for one’s physical
integrity recognized in Article 5 of the American Convention, in the cases
of Catalino Chochoy, José Corino, Abelino Baycaj , Antulio Delgado, Juan
Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso
Galicia Gutiérrez, victims of attempted extrajudicial executions; (4) the
rights of the child recognized in Article 19 of the American Convention,
in the cases of minors Rafael Sánchez and Andrés Abelicio Galicia Gutiérrez;
(5) the right to judicial guarantees and judicial protection recognized in
Articles 8 and 25 of the American Convention in the case of all the
victims of extrajudicial and attempted extrajudicial execution; (6) in all
these cases the State is also responsible for failing to honor its
obligation under Article 1(1) of the American Convention, which is to
respect and ensure the rights and freedoms protected therein.
Based on the analysis and conclusions set forth in this report, the
Inter-American Commission on Human Rights repeats its recommendations that
the State of Guatemala should:
That it conduct a thorough, impartial and effective investigation
to determine the circumstances of the extrajudicial executions and
attempted extrajudicial executions of each victim and the attendant
violations, and punish those responsible.
That it take the necessary measures so that the next of kin of the
victims of the extrajudicial executions might receive adequate and prompt
compensation for the violations herein established.
That it take the necessary measures so that the victims of the
attempted extrajudicial executions might receive adequate and prompt
compensation for the violations herein established.
That it effectively prevent a resurgence and reorganization of the
That in Guatemala the principles established in the United Nations
“Declaration on the right and responsibility of individuals, groups and
institutions to promote and protect universally recognized human rights
and fundamental freedoms” be promoted and that the necessary measures be
taken to ensure that the right of those who work to secure respect for
fundamental rights is respected and that their life and personal integrity
On March 6, 2001, the Commission sent Report Nº 26/01 to the
Guatemalan State and to the petitioners in compliance with Article 51(2)
of the American Convention. It also gave the State one month in which to
comply with the above recommendations. That period has now expired, and
the Commission has received no response from the State regarding this
In light of the above considerations and pursuant to Article 51(3)
of the Convention and Article 48 of its Regulations, the Commission
decides to repeat this report’s conclusions and recommendations, to
publish it, and to include it in its Annual Report to the OAS General
Assembly. The Commission, in compliance with its mandate, will continue to
monitor the steps taken by the Guatemalan State in connection with the
aforesaid recommendations until such time as they have been carried out in
and signed for the Inter-American Commission on Human Rights in
Santiago, Chile, April 4 , 2001 Signed: Claudio Grossman, Chairman; Juan
E. Méndez, First Vice-Chairman; Helio Bicudo, Robert K. Goldman, Peter
Laurie, and Julio Prado Vallejo, Commissioners.
APRIL 24, 2006
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
1. On December 8, 2000, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) approved Report on admissibility and the merits No. 117/00, in keeping with Article 50 of the American Convention on Human Rights (hereinafter “the American Convention”) and so notified the Guatemalan State on December 22, 2000.
2. In Report No. 117/00, the Commission decided, in keeping with Article 40 of its Regulations then in force, to join several cases and to refer to them in a single report. One of the cases joined was number 10.626 on Remigio Domingo Morales and Rafael Sánchez, and in the chapter on “Facts alleged” it stated as follows:
A. Cases involving extrajudicial executions
1. Case 10.626: Remigio Domingo Morales and Rafael Sánchez
a. Facts alleged
7. On June 28, 1990, in the hamlet of Tuisquián, village of Xemal, the municipality of Colotenango, department of Huehuetenango, Remigio Domingo Morales and teenager Rafael Sánchez (15 years) were seized by Civil Patrolmen and accused of being guerrillas. Once in custody, the commander of the military base at Huehuetenango ordered the local PAC to gather everyone from the hamlet to “be present when Civil Patrolmen Nicolás Godínez, Modesto Godínez and Andrés Domingo stoned them on the commander’s orders.” The victims were taken to the Huehuetenango hospital in critical condition. According to records, the victims died from the serious injuries they sustained at the hands of their captors. The events were reported to the proper authorities and to the press.
b. Proceedings with the Commission
8. On August 17, 1990, the Commission opened case 10.626 and forwarded the pertinent parts of the petition to Guatemala, requesting that the government provide pertinent information. Guatemala supplied information on July 10, 1991 and September 26, 1994. On November 6, 1995, the petitioners filed their observations to the State’s response, which were then promptly brought to its attention. Since then, no new information has been forthcoming from either party.
9. On August 9, 1998, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement. The parties did not accept the Commission’s offer.
C. The State’s position
10. The State reported that in the instant case, “the Second Court of First Instance of the Department of Huehuetenango instituted criminal inquiry number 1261-90. A number of members of the Colotenango Civil Patrol were charged with battery and unlawful arrest….” The State requested that, in keeping with Article 46 of the American Convention, the case be declared inadmissible on the grounds that the remedies under domestic law had not been exhausted.
3. On March 2, 2001, the Guatemalan State reported as follows regarding the case of Remigio Domingo Morales and Rafael Sánchez: “To date the persons accused have not been placed on trial so the family members of the offended persons did not lodge any accusation against them, thus the Public Ministry did not continue the investigations into the case for lack of sufficient elements of proof.”
4. On April 7, 2001, the Commission approved and published Report No. 59/01 pursuant to Article 51 of the American Convention, whose first conclusion reads: “Based on the above analysis, the Commission confirms its conclusion that the facts prompting the petitions are true and that the State is responsible for violating the following rights: (1) the right to life recognized in Article 4 of the American Convention, in the cases of Remigio Domingo Morales, Rafael Sánchez….”
5. On July 21, 2004, and January 6, 2006, the Guatemalan State reported that after undertaking an investigation into the facts alleged, it was possible to verify that on June 28, 1990, Messrs. Remigio Domingo Morales and Rafael Sánchez were admitted to the Hospital of Huehuetenango to receive attention for their multiple blunt injuries, and both were discharged from the hospital July 3, 1990. In addition, the State reported that according to an investigation by officials from COPREDEH, it was possible to find that Messrs. Morales and Sánchez are alive, and, therefore, were not victims of extrajudicial execution, as stated in the report issued by the IACHR. The State produced evidence that included a letter signed by the executive director of the Hospital Nacional de Huehuetenango dated March 23, 2004; copies of residential identification papers; affidavit signed by Natividad Morales López dated January 9, 2004; affidavit signed by Remigio Domingo Morales dated January 14, 2004; and affidavit signed by Esperanza Domingo Godínez.
6. The Guatemalan State, by virtue of the information and documents produced, asked the Commission to correct Report on the Merits No. 59/01, of April 7, 2001, in the pertinent parts, making it clear that the alleged victims were not extrajudicially executed.
7. The IACHR, despite the efforts of the Executive Secretariat, has not been able to contact the original petitioners since January 1995.
1. That a material error as regards the facts of the case has been shown, that became known to the Commission subsequent to the approval and publication of Report No. 59/01.
2. That the Inter-American Court on Human Rights has indicated
54. At the same time, the Court cannot ignore the possibility of exceptional circumstances that would make it permissible for the Commission to amend the aforementioned report. One such circumstance would be partial or full compliance with the recommendations and conclusions contained in the report. Another would be the existence in the report of errors of substance regarding the facts of the case. Lastly, another situation would be if facts unknown at the time the report was issued and which could have a decisive effect on its content were to come to light. This implies that there can be no re-opening of the debate over the original facts or legal considerations.
55. In any of the above cases, amendment may be requested only by the petitioners or the State. Such a request for amendment may be made only prior to publication of the report, within a reasonable period from the date of its notification. The parties should be provided with an opportunity to discuss the facts or errors that have given rise to the petition, in accordance with the principle of procedural equity.
3. In the case at hand, the request for rectification by the State came after publication of the report. Nonetheless, the IACHR observes that the material error is substantial and influenced the content of the decision.
4. That the material truth, within respect for juridical security and procedural equity, should prevail over procedural formalities.
5. That Report No. 59/01 should be rectified.
IN VIEW OF THE FOREGOING, THE IACHR RESOLVES:
1. To rectify Report No. 59/01, published and approved on April 7, 2001, so as to state that on June 28, 1990, Messrs. Remigio Domingo Morales and Rafael Sánchez were detained by members of the Civil-Defense Patrols, and that same day were taken to the Hospital of Huehuetenango to receive attention for their multiple blunt injuries, and both were discharged from the hospital on July 3, 1990.
2. The Guatemalan State violated the right to physical integrity to the detriment of Messrs. Remigio Domingo Morales and Rafael Sánchez.
3. To notify the Guatemalan State and the petitioners of this resolution.
4. To publish this resolution and attach it to Report No. 59/01 in all the print and electronic publications of the IACHR.
 IACHR, REPORT ON THE MERITS No. 59/01; CASES: 10.626 REMIGIO DOMINGO MORALES AND RAFAEL SÁNCHEZ; 10.627 PEDRO TAU CAC; 11,198(A) JOSÉ MARÍA IXCAYA PIXTAY ET AL.; 10.799 CATALINO CHOCHOY, JÓSE CORINO THESEN AND ABELINO BAYCAJ; 10.751 JUAN GALICIA HERNÁNDEZ, ANDRÉS ABELINO GALICIA GUTIÉRREZ AND ORLANDO ADELSO GALICIA GUTIÉRREZ; and 10.901 ANTULIO DELGADO. GUATEMALA. April 7, 2001.
 I/A Court H.R., Reports of the Inter-American Commission on Human Rights (Art. 51 American Convention on Human Rights). Advisory Opinion OC-15/97 of November 14, 1997. Series A No. 15.
IACtHR. Paniagua Morales et al Case (Merits), Judgment of March 8, 1998, Ser. C No. 37, para.
Thus, Article I of the American Declaration of the Rights and Duties
of Man and Article 3 of the Universal Declaration of Human Rights
provided that “Every human being has the right to life, liberty and
the security of his person.”
Article 3 of the 1985 Guatemalan Constitution reads as follows:
“Right to life. The State guarantees and will protect human life
from the time of its conception, and the integrity and safety of the
United Nations Human Rights Committee, Bautista
Decision of October 27, 1995, para. 8.6; see
IACHR, Reports Nº 28/92 (Argentina) and Nº 29/92 (Uruguay), published in IACHR Annual Report 1992-93, OEA/Ser.L/V/II.83, doc.
14, corr. 1, March 1993, pp. 41, 154.
for example, European Court of Human Rights, Kaya
supra (where the issue was
to determine whether the death of a civilian at the hands of security
forces was deliberate); UN Human Rights Committee, Dermit
Barbato v. Uruguay, Nº 34/1981, para. 9.2 (where the case was
whether the death of an individual in custody was murder or, as the
State argued, suicide).
Report of the United Nations Special Rapporteur on summary or
arbitrary executions, E/CN.4/1986/21, para. 209.
Rodríguez, Merits, supra,
IACtHR, Advisory Opinion OC-8/87 of January 30, 1987, Habeas corpus in
emergency situations (Arts. 27(2), 25(1) and 7(6) American Convention
on Human Rights), Ser. A No. 8, para. 35.
"If those in charge need not produce the prisoner
posthaste they can use brutal methods with impunity, for the purposes
of either interrogation or intimidation.”
IACHR, Report on the
Situation of Human Rights in Bolivia, OEA/Ser.L/V/II.53, doc. 6,
July 1, 1981, p. 42.
See, in general, ODHAG, Guatemala
Nunca Más, Volume II, pp. 50-54.
Guatemala signed the United Nations “Convention on the Rights of the
Child” on January 26, 1990, and ratified it on June 6, 1990.
In so doing, it signaled its intention to comply with the goals
and provisions of this Convention.
The Convention on the Rights of the Child entered into force
for all parties on September 2, 1990, whereupon the State’s
obligation to respect the Convention was finalized.
The events in the case of Andrés Galicia Gutiérrez occurred
after the Convention entered into force.
The events in the case of Rafael Sánchez occurred subsequent
to Guatemala’s ratification of the Convention but before its entry
Under the general principles of the law of treaties, Guatemala
must refrain from frustrating the object and purpose of the
The terms of that Convention, in particular Article 37
concerning the right to freedom and to humane treatment, elaborate
upon the requirements that must be met for children to receive the
protective measures to which they are entitled.
Loayza Tamayo Case, Reparations, Judgment of November 27, 1998, para.
169 (quotation marks omitted).
Velásquez Rodríguez Case, Fairén Garbi and Solís Corrales
Case and Godínez Cruz Case, Preliminary Objections, supra,
paras. 91, 90 and 93, respectively.
Advisory Opinion 9-87 of October 6, 1987, Judicial guarantees in
states of emergency (Arts. 27.2, 25 and 8 American Convention on Human
Rights) Ser. A No. 9, para. 24.
See IACHR, Annual
Report of the IACHR 1989-90, p. 157; Annual
Report of the IACHR 1990-91, p. 449-450; Annual
Report of the IACHR 1991, p. 210.
Tomuschat Report 1992, para.
IACHR, Annual Report of the
IACHR 1989-90, p. 157.
CEH Report, “Denegación
de Justicia” [Denial of Justice], paras. 287-98, 422-23; see
also Tomuschat Report 1991, para. 123.
IACtHR, Velásquez Rodríguez Case (Merits), supra,
See, in general,
Reports 28/92 (Argentina) and 29/92 (Uruguay) in the Annual
Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, doc. 14 corr. 1,
March 12, 1993, pp. 47-49, 161-65.
IACtHR, Velásquez Rodríguez Case (Merits), supra,
See, in general, Report Nº
10/95, Case 10,580, Ecuador, Annual
Report of the IACHR 1995, OEA/Ser.L/V/II.91 Doc. 7, rev. 3, April
3, 1996, paras. 32-34;
Report Nº 55/97, Case 11.137, Argentina, paras. 413-24
and Report Nº 48/97, Case 11.411, Mexico, paras. 109-112, Annual
Report of the IACHR 1997, OEA/Ser.L/V/II.98, Doc. 7 rev., April
IACHR, Report Nº 55/97, Case 11.137, Juan Carlos Abella, Argentina,
Annual Report of the IACHR 1997, OEA/Ser.L/V/II.98, Doc. 6 rev.,
April 13, 1998, para. 412.
See, for example,
IACHR, Annual Report of the
IACHR 1985-86, OEA/Ser.L/V/II.68 doc.8 rev. 1, September 26, 1986,
“Areas in which steps need to be taken…”, p. 193.
Report of the Special Rapporteur
on Extrajudicial, Summary or Arbitrary Executions, Mr. Bacre Waly
Ndiaye, E/CN.4/1997/60, December 24, 1996, para. 47.
See, for example, paras.
IACtHR, Loayza Case, Reparations, supra,
Ibid, which cites the
Paniagua Morales et al Case (Merits), supra, para. 173.
Report of the Special Rapporteur,
Sr. Bacre Waly Ndiaye, supra,
IACtHR, Velásquez Rodríguez Case (Merits), supra,
Ibid, para. 172.
Ibid, para. 166.