On June 24, 1993, the Inter-American Commission on Human Rights
(hereinafter the “Commission” or the “IACHR”) received a
complaint filed by the Human Rights Office of the Archbishop of
Guatemala and by the International Human Rights Law Group (hereinafter
“the petitioners”) alleging the responsibility of the State of
Guatemala (hereinafter “the State”, “Guatemala” or “the
Guatemalan State”) for violation to the detriment of Tomás Lares
Cipriano or Tomás Cipriano Lares (hereinafter “the alleged victim”)
of rights protected in Articles 4 (right to life), 5 (right to humane
treatment), 7 (right to personal liberty), 8 (right to a fair trial), 16
(freedom of association), and 25 (right to judicial protection) of the
American Convention on Human Rights (hereinafter the “American
Convention”), in conjunction with the general obligation of the State
to respect and ensure the aforesaid rights provided in Article 1(1) of
the above-mentioned instrument.
On August 9, 2000, the Guatemalan State, through the President of
Guatemala, Dr. Alfonso
Portillo, acknowledged its institutional responsibility in 10 cases
before the IACHR, among them the instant one.
3. After examining
the arguments of the parties, compliance with the admissibility
requirements, and the acknowledgement of state responsibility, the
Commission decided to declare the instant petition admissible under the
provisions contained in Articles 46 and 47 of the American Convention.
II. PROCESSING BY
A. Opening and
processing of the Petition
The petition was lodged with the IACHR on June 24, 1993.
The Commission proceeded to process it as case 11.171, and
transmitted the pertinent portions thereof to the State on June 25.
The State conveyed information on the petition to the Commission
on October 28.
On October 26, the petitioners sent to the IACHR additional
information, the pertinent portions of which were transmitted to the
State on November 5. On December 3, the State requested the Commission for an
extension, in order to submit its comments on the information provided
by the petitioners. On
January 17, 1994, the Commission agreed to the extension request and on
February 17 received the information from the State.
On March 7, the IACHR transmitted the observations of the
Guatemalan State to the petitioners and requested them to submit their
comments, which were provided to the Commission on April 15 and conveyed
to the State on May 9.
On June 13, the State again requested the IACHR for an extension
to transmit its comments on the information supplied by the petitioners.
The Commission informed the State on June 15 that it was granting
it an extension of 30 days, and on August 5 that the time period set had
elapsed, further advising it that if it did not receive the information
requested it would apply the presumption of truth provided in Article 42
of the Rules of Procedure of the IACHR.
On August 22, 1994, the State sent the IACHR the information
requested, which brought it to the knowledge of the petitioners on
September 15. The latter,
on January 23, 1995 sought an extension to submit their comments.
On March 2, 1995, the IACHR granted the petitioners an extension
of 30 days. On January 25, 1995, the petitioners transmitted their
observations to the IACHR, which forwarded them to the State on May 8.
The State transmitted its comments on July 11.
On December 9, 1998, the Commission again requested information
from both the State and the petitioners.
In reply to that request, the State applied for an extension on
January 20, 1999. On
February 6, the State sought a further extension from the Commission, in
order to provide it information. The
IACHR refused the request of the Government on April 9 and on May 25
urged it to convey the required information.
The State transmitted information to the Commission on June 16.
In turn, on July 7, 1999, the petitioners requested the IACHR to
make a decision on the merits of the case.
Friendly Settlement Procedure
On June 17, 1996, the IACHR placed itself at the disposal of the
parties, in order for the matter to be submitted to a friendly
settlement procedure. On July 17, the petitioners informed the IACHR of their
disagreement to the matter being settled by such a procedure.
The Commission informed the State of the position of the
petitioners on July 24. On
July 26, the State said that it would study the proposal put forward by
the Commission, and that in due course it would communicate its decision
as to whether or not to submit to a friendly settlement procedure.
On February 9, 1998, the petitioners expressed their willingness
that the matter be submitted to a friendly settlement procedure.
The IACHR informed the Guatemalan Government of this position on
February 16 of that year. On
March 30, 1999, the State sent a communication to the IACHR, saying that
it would not yet pronounce its decision whether or not to submit to a
friendly settlement. The
Commission advised the petitioners of this position on April 30 and
requested its comments in that respect.
On May 20, the petitioners requested and were granted an
extension by the Commission. On
March 9, 2000, the petitioners reiterated to the IACHR their willingness
for the matter to be resolved by a friendly settlement, whereupon the
Commission, on March 24, decided once more to place itself at the
disposal of the parties to that end.
of State Responsibility
On August 9, 2000, the Government of Guatemala, represented by
the President of the Republic, Dr.
Alfonso Portillo, acknowledged
institutional responsibility of the State that arises from the breach of
the obligation imposed by Article 1 (1) of the American Convention to
respect and ensure the rights enshrined in the Convention … with
respect to the following persons or cases:
3. Tomas Lares Cipriano (IACHR 11171)
Guatemalan Government admit[ted] the occurrence of the acts that led to
the lodging of the petitions with the Commission … and undert[ook] to
engage in negotiations on those cases.
III. POSITIONS OF
Position of the Petitioners
The petitioners allege in their initial communication that on
February 19, 1993, 3,000 members, including Mr. Tomás Lares Cipriano,
of the voluntary self-defense patrols of a number of cantons in the
Municipality of Joyabaj, Department of Quiché, presented their
resignation to various civil authorities.
In the document that contains the resignation, the signatories said:
. That since the 1980’s we have been serving without pay in the Civil
Patrol, currently known as the “Voluntary Civil Defense Committee”,
which, in practice, is totally compulsory in our communities because the
patrol commanders, the military commissioners of our communities, who
act under the orders of the military detachment of our municipality,
tell us that if we are not part of the Civil Patrol, then we are
guerrillas and that we must leave our homes, that we should take our
children into the mountains, otherwise one day they will murder us.
2. In addition the commanders of the Civil Patrol force us to supply
firewood to the military detachment … by means of threats and
intimidation; in other words, we have been participating in the Civil
Patrol to save our lives …
4. We are so tired of so difficult a situation that we have made the
decision to resign from the Civil Patrol, invoking Article 34 of the
Constitution, which in its second paragraph says that: NO ONE IS OBLIGED
TO JOIN OR TO BE A MEMBER OF SELF-DEFENSE GROUPS OR ASSOCIATIONS, OR THE
The resignation was made public in various mass media, inter
alia, El Gráfico, edition
of February 24, 1993; Prensa Libre,
edition of February 25, 1993; Siglo
Veintiuno, editions of February 25 and 26, 1993.
On March 26 of that year Messrs.
Tomás Lares Cipriano, Diego Lares, Marcos Ambrosio Sacarías,
Manuel Ambrosio Sacarías, and Domingo Gutiérrez presented themselves
at the Human Rights Office of the Archbishop of Guatemala to report the
threats made against them by members of the civil self-defense patrols
of the Municipality of Joyabaj. The threats were in response to the resignation from the
self-defense committees. On
that occasion, Mr. Tomás Lares Cipriano and his companions said that
they too had been threatened with dire consequences -which, according to
the petitioners constitutes a death threat- in the event of failure to
attend a demonstration of civil patrol members organized for March 28,
1993, and that to that effect a list would be drawn up of the names of
absentees, who would be accused of being members of organizations linked
to the Unidad Revolucionaria
Nacional Guatemalteca (URNG).
The gravity of the complaint prompted the Human Rights Office of
the Archbishop of Guatemala to file a writ of habeas corpus for
preventive purposes with the Supreme Court of Justice on behalf of Tomás
Lares Cipriano and the other persons who resigned from the Civil
Self-Defense Patrol of Joyabaj. In
that writ, the petitioners requested the court:
guarantee the physical integrity of the members of the self-defense
patrols who refused to be members of them, in light of the threats that
have been made against them…
the necessary measures be immediately taken to protect the life, person,
and freedom of said persons.
the competent judge be ordered to go to the Municipality of Joyabaj …
on Sunday, March 28 … and to ascertain that persons who refuse to be
members of the Civil Self-Defense Patrols are not subjected to illegal
arrests or threats …
On April 30, at approximately 11:30 a.m., according to a
communication from the Comité de
Unidad Campesina [Peasant Unity Committee] (CUC), Tomás Lares
Cipriano “was ambushed and murdered in a cowardly fashion, shot six
times (two bullets in the left hand, one bullet in the chest, one bullet
between the eyes, one bullet in the head); his right ear was amputated,
and his head was smashed in and severed”.
According to the report on the autopsy later conducted, on June 29,
1993, by the coroner, Dr. Lissette
García de Crocker, the causes of the death of Tomás Lares Cipriano
were cerebral trauma, multiple fragment cranial fracture, gunshot
wounds, and neck wound produced by a sharp, blunt instrument.
The CUC communiqué mentioned
the General Commander of the PAC (of Joyabaj), Leonel Nogales, has
ordered the abduction of Mr. Tomás Lares Cipriano … At the same time,
Messrs. Catarino Juárez
and Santos Chich Us, the commander and deputy commander of the PAC of
Chorraxaj canton, prepared lists of all the local people who are grouped
around cooperatives, religious activities, and grassroots organizations
On May 19, 1993, by which time the murder of Tomás Lares
Cipriano was public knowledge,
the Human Rights Office of the Archbishop of Guatemala was informed of
the decision of May 11, 1993, pronounced by Roderico Haroldo López
Robles, titular judge of the Second Criminal Court of First Instance in
and for Quiché, regarding the writ of habeas corpus filed by the
petitioners. The writ,
which was found INADMISSIBLE, stated that “the alleged injured parties
are not in the situation provided for in Article 82 of Decree 1-86 of
the National Constituent Assembly [and] that they were nowhere to be
In the additional information and the observations on the reports
submitted by the State in the course of the proceeding instituted before
the IACHR, the petitioners said that, on May 20, 1993, Mr. Diego Lares
Ambrosio had filed a formal criminal complaint against Próspero Leonel
Ogaldez García, Santos Chich Us, Catarino Juárez, Diego Granillo Juárez,
Santos Tzi, and Gaspar López Chiquiaja, as the alleged culprits of the
murder of Mr. Tomás Lares Cipriano.
The petitioners also alleged that members of the civil
self-defense patrol had prevented the autopsy from being carried out
and that, therefore, the Second Criminal Court of First Instance had
been requested to order the exhumation and an autopsy of the corpse,
which formalities were carried out on June 29, 1993.
As to the reconstruction of the events, the petitioners said that
the threat of an ambush by members of the self-defense patrols was the
real reason why this measure had not been carried out, and not the one
adduced by the State, according to which the failure to carry out said
measure was due to bad weather.
The petitioners further say that on July 29, 1993, an arrest
warrant was issued for the accused, but that only Catarino Juárez and
Gaspar López Chiquiaja were actually arrested and that Próspero Leonel
Ogaldez García had given himself up voluntarily to the Second Criminal
Court of First Instance in Charge of Preliminary Investigations in and
for Quiché. In the
statements they submitted during the preliminary investigation, the
aforementioned denied being members of the self-defense patrols.
According to the petitioners, the connection is duly attested by
documentary evidence and witness testimony contained in the record, as
well as publicly. The court
only took into account the testimony of the accused and of the witnesses
presented by them, while overlooking other evidence. As a result of the foregoing, the judge decided not to revoke
the orders of release and of release under personal recognizance issued
in favor of Próspero Leonel Ogaldez García and Catarino Juárez,
respectively. As to Gaspar
López Chiquiaja, the petitioners said that the judge had ordered his
release despite contradictory testimony from different witnesses.
According to the petitioners, the plaintiff did not have the
opportunity properly to cross-examine the defense witnesses, and other
procedural anomalies were also alleged.
As regards the warrant of arrest for Santos Chich Us, Diego
Granillo Juárez, and Santos Tzi, issued on July 29, 1993, the
petitioners said that it was executed, even though those individuals
remained in their communities. In
the opinion of the petitioners, the aforesaid warrant was not executed
because the police authorities were fearful of threats made against them
by members of Military Zone Nº 20.
According to the petitioners, the Chief of Police of Quiché is
alleged to have said that he would rather go to prison for disobedience
than be killed.
The petitioners further stated that in January 1994, a new judge
took office at the Second Court of First Instance in and for Quiché, as
the previous one had been dismissed on charges of corruption.
They further mentioned that the court archives had been burned on
January 19, and that the judge said that the incident could have been
caused by patrol members and that he himself was the target of threats
from said individuals. The
petitioners added that both the Army of Guatemala and, in particular,
the Commander of Military Zone Nº 20 in Quiché, were involved taken
part in planning and concealing the acts that took place.
Finally, the petitioners added that the State had not adopted the
necessary measures to execute the arrest warrants
outstanding for more than six years for three of the principal suspects
accused of killing of Tomás Lares Cipriano and that said failure
constituted an omission attributable to the State that gave rise to its
international responsibility by causing denial of justice.
Position of the State
26. In its initial
reply, the State of Guatemala said that an investigation had been opened
under proceeding Nº 79-93 before the Second Criminal Court of First
Instance and that various steps were pending therein designed to clarify
the matter. It further
reported that the Ministry of National Defense and the Office of the
Attorney General had been instructed to carry out the necessary
investigations and to expedite the process.
The State later supplied more detailed information and said that,
according to its initial investigations, it had determined that Mr. Tomás
Lares Cipriano had resigned from the Civil Self-Defense Patrols on March
26, 1993, and that on the 28th of that month had taken part in an
organized demonstration in favor of dissolving said organizations, for
which reason he received death threats from members of those groups.
With reference to judicial proceedings, the State informed that
on May 1, 1993, the Justice of the Peace for the Municipality of Joyabaj
had issued an initiating order to open an enquiry into the facts and
requested the National Police to begin the necessary investigations.
On May 3 of that year, the aforementioned judge disqualified
himself from the case because he no longer had jurisdiction and referred
the proceeding to the Second Criminal Court of First Instance in Charge
of Preliminary Investigations. On
May 12, a representative of the Attorney-General’s Office attended the
proceedings in response to a petition lodged by the son of Mr. Tomás
The State further informed that on 20 February, 1993, Mr. Domingo
Lares Ambrosio had filed a criminal complaint against Santos Chich Us,
Leonel Ogaldes, and Catarino Juárez,
as a result of which the judge issued an order to initiate proceedings,
and a representative of the Attorney-General’s Office again presented
himself after being notified of the complaint.
A series of court proceedings followed thereafter
before the plaintiff requested that an incarceration order be issued for
Leonel Ogaldez García, Santos Chich Us, Catarino Juárez, Diego
Granillo Juárez, Santos Tzi, and Gaspar López Chiquiaja.
On August 3 Catarino Juárez was arrested, he gave a signed
statement that same day, and two days later, on August 5, after the
testimony of the defense witnesses was heard, was released on parole due
to insufficient grounds to remand him in custody pending trial.
On August 9, Próspero Leonel Ogaldez García came forward
voluntarily to present his statement.
After listening to the witnesses for the defense, the judge
ordered his release because he found insufficient grounds to issue an
incarceration order. The Attorney-General’s Office filed an appeal against the
decisions that granted the accused their freedom. The Court of Appeals upheld the decisions of the lower court
and, furthermore, granted bail to Catarino Juárez.
As for Gaspar López Chiquiaj, the State reported that he was
arrested on a court order on October 17, 1993 and then taken before the
court. On October 21, the
court, after hearing the testimony of the accused and of the witnesses
presented by him, ordered his release pending trial.
This decision was challenged by the Attorney-General’s Office
on October 22 and the Court of Appeals upheld the challenge, revoking
the order of release pending trial.
Accordingly the presiding judge had to order his reincarceration.
Following an observation by the petitioners, in another
the State rectified that the resignation of Tomás Lares Cipriano from
the Civil Self-Defense Patrols occurred on February 19, not 26, 1993.
The State further mentioned that the Justice of the Peace had
ordered an autopsy on the corpse and that it was not carried out because
the Deputy Mayors of Cantón Chorraxaj opposed it and the children of
the deceased, together with a mob of 400 people armed with machetes,
prevented it from being taken to the morgue.
Therefore, the corpse was subsequently exhumed and an autopsy performed
on it. As for the
reconstruction of the events, the State said that it was not carried out
owing to bad weather.
With regard to the other accused who were released, the State
mentioned that those measures were adopted in accordance with the law
and on the basis of a reasoned opinion in light of the evidence before
the courts. By the same
token, the State mentioned that it was necessary for the complainants to
produce evidence at the proceedings and that said investigation was the
channel provided by Guatemalan law to seek justice in accordance with
the new Code of Criminal Procedure.
Next, the State invoked Article 37 of the (previous) Regulations
of the IACHR, saying that the complainants had, first, to exhaust the
remedies under domestic law via due process.
In relation to the arrest warrants issued for Santos Chich Us,
Diego Granillo Juárez, and Santos Tzi, the State said that the Interior
Ministry and the General Directorate of the National Police had been
requested to capture the aforementioned and to take them before the
judge presiding over the case.
Regarding the information provided by the petitioners
about a fire at the archives of the court where the case was being
heard, the State said that proceeding
In later communications sent to the IACHR, the Government said
that on May 10, 1995, the First Criminal Court of First Instance in and
for Huehuetenango had issued an indictment against Santos Chich Us in
case 758-93 charging him with the murder of Tomás Lares Cipriano and
that, after the respective proceedings were concluded, on November 5,
1996 the aforementioned individual had been sentenced to 28 years in
prison with no possibility of a reduced sentence.
The judgment became final on December 4, 1996, after the Ninth
Chamber of Appeals rejected a special appeal filed by the defense
attorney for the convicted man.
Furthermore, the State said that the arrest warrants issued on
July 30, 1993, and reissued on May 6, 1995, for four other persons
accused of killing Tomás Lares Cipriano were pending execution.
On December 28, 1998, the State, through the Presidential
Commission on Human Rights, reiterated to the General Directorate of the
National Police that it expedite execution of the arrest warrants for
Diego Granillo Juárez, Santos Tzit, and Gaspar López Chiquiaj.
In the information supplied by the State to the IACHR on August
24, 1999, the Guatemalan Government repeated that domestic remedies had
not been exhausted and requested the Commission to take no account of
the petitioners' arguments to the effect that the delay in the execution
of the arrest warrants issued for three of the accused constituted an
exception to the requirement of exhaustion of domestic remedies on the
ground that there was evidence of denial of justice in the proceedings
in the domestic sphere. The
State gave its assurances that every effort was being made to find the
persons sought in the arrest warrants.
On August 9, 2000, in Guatemala City, in the presence of the
President and Executive Secretary of the IACHR, the President of the
Republic, Dr. Alfonso
Portillo, said that his government
the institutional responsibility of the State that arises from the
breach of the obligation imposed by Article 1 (1) of the American
Convention to respect and ensure the rights enshrined in the Convention
… with respect to the following persons or cases:
3. Tomas Lares Cipriano (IACHR 11171)
foregoing acknowledgement is based on the omission by the State of its
obligation to ensure the enjoyment of and respect for the fundamental
rights of persons, in accordance with the Constitution of Guatemala, the
American Convention on Human Rights, and other international instruments
signed and ratified by Guatemala.
Guatemalan Government admits the occurrence of the acts that led to the
lodging of the petitions with the Commission … and undertook to engage
in negotiations on those cases”.
ANALYSIS OF ADMISSIBILITY
38. The Commission considers that the recognition by the State of its institutional responsibility implies tacit acceptance of the admissibility of the petition. Without prejudice of the above, juridical certainty demands that the Commission review this petition to determine if the requisites of admissibility established in the American Convention have been met.
The Commission has ratione
materiae competence to examine the instant petition because it
alleges violations of rights protected in the American Convention.
The Commission has ratione
personae competence to take up the instant petition because the
nature, both of the petitioners, and of the alleged victim, meets the
requirements mentioned, respectively, in Articles 44 and 1(2) of the
The IACHR has ratione
temporis competence to examine the instant petition inasmuch as the
duty to respect and ensure the rights recognized in the American
Convention was in force for the State at the time when the violations
alleged in the petition are said to have occurred.
Finally, the Commission has ratione
loci competence to take up the instant petition because it claims
violations of rights that allegedly took place in the jurisdiction of
the accused State.
of domestic remedies
The Commission finds in the instant matter that the petitioners
and the State mentioned two types of proceedings pursued under
Guatemalan domestic law. The first of these was the writ of habeas corpus filed for
preventive purposes by the Human Rights Office of the Archbishop of
Guatemala on March 26, 1993, and decided on May 11 of that year.
The second proceeding, of a criminal nature, started with the
preliminary measures ordered and the initiating order issued by the
Justice of the Peace of Joyabaj on May 1, 1993.
On May 3 of that year the proceedings were referred to the Second
Criminal Court of First Instance in Charge of Preliminary
Article 46(1)(a) of the American Convention provides that for a
petition to be admitted it is required “that
the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.”
As the Inter-American Court of Human Rights has found, those
“[principles refer not only to the formal existence of such remedies,
but also to their adequacy and effectiveness … Adequate domestic
remedies are those which are suitable to address an infringement of a
For its part an effective remedy is one capable of producing the result
for which it was designed.
Article 263, paragraph one of the Constitution of Guatemala,
invoked in the writ of habeas corpus filed on behalf of the alleged
victim, says that
person illegally imprisoned, detained, or otherwise prevented from
enjoying their personal liberty, threatened with the loss thereof … is
entitled to request their immediate exhibition before the courts of
justice, be it in order to have his liberty restored or guaranteed, to
put an end to mistreatment, or to cease the coercion to which they might
have been subjected.
The Commission finds that the writ of habeas corpus filed
on March 26, 1993 and rejected on May 11 of that year, 11 days after the
death of Tomás Lares Cipriano was made public by various mass media,
was filed for the precise purpose to protect, not only his liberty, but
also his life and physical integrity.
The Inter-American Court of human Rights has held that:
corpus performs a vital role in ensuring that a person's life and
physical integrity are respected, in preventing his disappearance …
and in protecting him against torture or other cruel, inhumane, or
degrading punishment or treatment.
Accordingly, the Commission considers that the writ of habeas
corpus presented by the Human Rights Office of the Archbishop of
Guatemala was the adequate and effective remedy provided by Guatemalan
law, since according to that body of laws, to the jurisprudence of the
inter-American system of protection of human rights, and insofar as the
petitioners were concerned, the purpose of the aforesaid remedy was to
protect the personal liberty of Tomás Lares Cipriano, as well as his
life and physical integrity.
The IACHR further finds that the writ of habeas corpus was filed
and decided before the domestic courts before the petitioners lodged
their petition with the regional organ, something to which the State
neither tacitly nor expressly objected in any of the communications it
sent to the Commission. Therefore,
the IACHR finds with respect to this proceeding that the remedies under
domestic law were exhausted.
The State, on the other hand, on three occasions, expressly
stated to the IACHR its objection of failure to exhaust domestic
remedies in connection with the criminal proceeding instituted as a
result of the death of Tomás Lares Cipriano.
The State said in its last communications
that, on November 5, 1996, in case 758-93, the accused Santos Chich Us
had been sentenced to 28 years in prison for the murder of Tomás Lares
Cipriano and that that judgment became final on December 4 of that year.
The State further informed that the arrest warrants issued on
July 30, 1993, and reissued on May 6, 1995,
for four other persons accused of the killing of Tomás Lares Cipriano,
were pending execution, even though the Presidential Commission on Human
Rights had reiterated to the General Directorate of the National Police
that it expedite the execution thereof.
Subsequently, the Guatemalan Government repeated that domestic
remedies had not been exhausted and requested the Commission to take no
account of the petitioners arguments to the effect that the delay in the
execution of the arrest warrants issued for three of the accused made
the rule of exhaustion of domestic remedies inapplicable, since the
State was making every effort to find the persons sought in the
aforesaid arrest warrants. The
State further said that the fact that it had not been possible to
complete their arrest was not to say that the State had not demonstrated
willingness or commitment to investigate and punish those who might
prove responsible for the acts.
The petitioners, in turn, said to the Commission that the failure
to execute the arrest warrants issued on July 30, 1993, and reissued on
May 6, 1995, constitutes an omission attributable to the State that
gives rise to its international responsibility by causing denial of
justice. In addition, the
petitioners mentioned a series of acts to demonstrate that the police
and judicial investigations were not conducted in a serious manner
designed to achieve effective results, and that said acts, rather,
prolonged an investigation that since 1993 has failed to lead to the
apprehension of three of the principal suspects of the killing of Tomás
The Commission has noted that one of the persons accused of the
killing of Tomás Lares Cipriano, Santos Chich Us, was sentenced to 28
years in prison in November 1996. However, it has also noted that the others have not yet been
caught even though court orders to that effect were issued on July 29,
1993 and reissued on May 5, 1995. The
Commission is also mindful that the criminal investigation of the other
persons allegedly responsible for the death of Tomás Lares Cipriano was
opened on May 1, 1993, when Justice of the Peace for the Municipality of
Joyabaj issued the order to initiate proceedings.
The Commission finds that the arguments advanced by the
Government to refute the imputation made by the petitioners in the sense
that the measures adopted by the State organs with respect to the other
accused are ineffective and dilatory, are not sufficiently forceful to
convince it that said measures have really been anything more than mere
Consequently, the Commission finds, as it did in a previous case
submitted to it,
that the criminal investigation of the other accused that has been
underway for more than eight years has not progressed beyond the initial
stage, which leads it to conclude, without that constituting a
prejudgment of the alleged violations of Articles 8 and 25 of the
Convention, that the criminal proceeding has been subject to delays not
imputable to the plaintiff and, therefore, in accordance with Article
46(2)(c) of the Convention, it rejects the objection raised by the State
that the remedies under domestic law were not exhausted.
The petitioners alleged in their initial communication that the
State had violated Article 16 (freedom of association) of the
Convention. In the course
of the proceeding before the Commission, the State has not refuted that
allegation. Moreover, on
August 9, 2000, the Guatemalan State, through its President,
responsibility in the matter sub
examine and admitted the occurrence of the acts that constituted a
violation of the American Convention and led to the lodging of the
petition with the Commission.
By the same token, the Commission finds that, with respect to the
violation of this right, the State did not allege, expressly or
otherwise, non-exhaustion of domestic remedies.
The Inter-American Court has found in the Mayagna (Sumo) Awas
Tingni Community Case that “in order to validly oppose the
admissibility of the petition … the State should have expressly and in
a timely manner invoked the rule that domestic remedies should be
exhausted”. As to timeliness, the
Court has said that “[t]he objection asserting the non-exhaustion of
domestic remedies, to be timely, must be made at an early stage of the
proceedings by the State entitled to make it, lest a waiver of the
requirement be presumed.”
Therefore, the IACHR concludes that the Guatemalan State failed to make
the objection that is the subject of this analysis by having tacitly
waived same by not invoking it expressly and in a timely manner in any
of the communications addressed to the Commission.
2. Timeliness of
Under Article 46(1)(b) of the American Convention, the general
rule is that a petition must be lodged within a period of six months “from
the date on which the party alleging violation of his rights was
notified of the final judgment”.
According to Article 32(2) of the Rules of Procedure of the
Commission, the time period provided for in Article 46(1)(b) does not
apply in cases where exceptions to the requirement of prior exhaustion
of domestic remedies are applicable.
In such cases, the Rules of Procedure provide that the petition
should be presented within a reasonable period of time, bearing in mind
the date on which the alleged violation occurred and the circumstances
of each case.
With regard to the habeas corpus proceeding, the petition was
lodged with the Inter-American Commission on Human Rights on June 24,
1993, in other words a month after the petitioners had been informed of
the habeas corpus ruling of May 11 of that year.
Therefore, the petition was presented within the time limit
provided in Article 46(1)(b) of the Convention.
Accordingly, the Commission is competent to examine the petition.
As for the criminal investigation, as the Commission has said on
a previous occasion, “given the absence of a final judgment in the
present case, the findings set forth in the preceding section concerning
domestic remedies, and the petitioners’ allegations that the case
involves an ongoing denial of justice, the Commission is required to
establish whether the petition was filed within a reasonable time under
the specific circumstances.
In the course of the proceeding before it, the Commission has
received on repeated and successive claims from the petitioners alleging
irregularities, delays, and inaction in the criminal investigations
initiated following the murder of Tomás Lares Cipriano.
Accordingly, it finds that complaints connected with this
particular aspect of the petition have been presented within a
As to timeliness of the complaint concerning the alleged
violation of the right of freedom of association, the Commission finds
that the requirement as regards reasonable time was also met, since that
allegation was made in the original petition, in other words within six
months after the events that befell Tomás Lares Cipriano occurred.
C. Duplication of
proceedings and res judicata
The record does not show that the subject matter of the petition
is pending in another international proceeding, or that it is the same
as a petition previously studied by this organ or by another
international organization. Therefore,
the requirements set down in Articles 46(1)(c) and 47(d) of the
Convention have been met.
D. Nature of the
The Commission finds that the allegations made by the petitioners
regarding violation of the right to life, humane treatment, fair trial,
freedom of association and judicial protection could tend to establish
violations of the rights recognized in Articles 4, 5, 8, 16, and 25 of
the American Convention, in conjunction with the general obligation of
the State to respect and ensure the aforesaid rights provided in Article
1(1) of the above-mentioned instrument.
With reference to the alleged violation of Article 5 (humane
treatment) of the American Convention, the Commission notes that the
petitioners did not allege specific acts of torture or inhuman treatment
that might have been inflicted on the alleged victim before his murder.
Nor does the report prepared by the coroner show that the
mutilation of the right ear and other injuries sustained by Tomás Lares
Cipriano might have been inflicted before his life was taken.
Consequently, the Commission, in accordance with Article 47(c) of
the Convention, finds that the allegation with respect to the violation
of this particular right is unfounded.
In relation to the alleged violation of Article 7 (personal
liberty) of the American Convention, the Commission notes that the
petitioners, in their complaint, said that Tomás Lares Cipriano was
ambushed and later murdered.
There is no evidence in the record before the IACHR that the deceased
might have been deprived of his personal liberty before being murdered.
Consequently, the Commission, in accordance with Article 47(c) of
the Convention, finds that the allegation with respect to the violation
of this particular right is unfounded.
The Commission concludes that it is competent to take up the
instant petition and that it is admissible, in accordance with Articles
46 and 47 of the American Convention, as regards the rights protected in
Articles 4, 8, 16, and 25 of the Convention, and inadmissible with
respect to Articles 5 and 7 of said instrument.
Based on the factual and legal arguments given above and without
prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case admissible as regards the alleged
violations of Articles 4, 8, 16, 25, and 1(1) of the American
To declare the instant case inadmissible as regards the alleged
violations of Articles 5 and 7 of the American Convention.
To continue with its analysis of merits in the case.
To publish this decision and to include it in its Annual Report
to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights in the city of Washington, D.C., on the 27th
day of the month of February, 2002. (Signed): Juan E. Méndez,
President; José Zalaquett, Second Vice-President; Robert K. Goldman,
Julio Prado Vallejo, Clare K. Roberts, and Susana Villarán,
Commission Member Marta Altolaguirre, a Guatemalan national, did not
participate in the discussion and voting on the instant report, in
accordance with Article 17(2)(a) of the new Rules of Procedure of
Article 39 of the new Rules of Procedure of the IACHR in force as of
May 1, 2001.
In addition to the President of Guatemala, the document in which the
Guatemalan State acknowledged the acts and its institutional
responsibility was also signed by the … and by the then-President
and Executive Secretary of the IACHR Dean Claudio Grossman and
Ambassador Jorge E. Taiana, respectively.
Decree Law Nº 19-86,
in force as of January 10, 1986, states, inter
alia, “That there currently exist Civil Defense Committees,
voluntarily composed of Guatemalan citizens … to ensure the
defense of their communities, their families, there property,
against the effects of natural disasters … and armed conflicts,
such as the new modality of attack that the subversive groups
said civil organizations contribute positively to attain the levels
of development, peace and tranquility currently enjoyed in the
… it is necessary for the State to ensure the ongoing existence
and operation of the aforementioned civil organizations with the
assistance and under the coordination of the Ministry of National
Defense, to which end the relevant legal provision shall be issued
1 The existence is recognized of the Civil Defense Committees as
organizations of a civil nature and as an expression of the
available mobilizable and territorial reserves provided for by the
Law, which, their organization notwithstanding, shall be assisted
and coordinated by the Ministry of National Defense.
4. The Ministry of
National Defense … may provide benefits to members of Civil
Defense Committees who, in the exercise of their self-defense
activities, sustain injuries that cause physical and/or mental
This communication was addressed, inter alia, to the
President of the Republic, the Minister of Defense, the
Attorney for Human Rights, and the President of the Supreme Court of
They are contained in the record before the IACHR.
Communiqué of May 4, 1993, which is contained in the record before
This information is contained in a letter of July 1, 1993, addressed
by the aforesaid coroner to the Human Rights Office of the
Archbishop of Guatemala. That
letter is in the record before the IACHR.
See footnote 7 supra.
The murder of Mr. Tomás Lares Cipriano was made public by diffrent
mass media, inter alia, Siglo Veintiuno, “Responsabilizan
a PAC por asesinato” [PAC held responsible for murder],
edition of May 5, 1993 and La
Hora, “CERJ denuncia
asesinato de activista de derechos humanos” [CERJ denounces
murder of human rights activist], edition of May 4, 1993.
With respect to the information provided by the Government to the
effect that a mob of 400 men armed with machetes, ignoring the order
to carry out the autopsy required by law, had taken away the corpse
of Tomás Lares Cipriano in order to bury it, the petitioners say
that those allegations are untrue.
The petitioners make this submission in their communication to the
IACHR of January 25, 1995.
The petitioners mention the measures that were requested of the
court, inter alia: personal identification of the accused so that they
might be recognized by the witnesses who testified in the
proceeding; transmission, by the Commander of Military Zone Nº 20,
based in Santa Cruz del Quiché, of the records of the taking of
office of the Patrol Commanders of the Municipality and the list of
civil patrol members, as well as his testimony as a witness; and
examination in evidence proceedings of the witnesses for the
plaintiff. According to
the petitioners, all of these measures were refused by the court,
except for the testimony of the military commander, who later
declined to present it.
The aforesaid warrants, for Diego Granillo Juárez, Santos Tzit, and
Gaspar Chiquiaj, were issued by the Criminal Court of First Instance
on July 30, 1993 and were reissued on May 6, 1995.
Information provided to the IACHR on October 28, 1993.
Information supplied to the IACHR on February 17, 1994.
In the information furnished by the petitioners, it states that the
above-mentioned criminal complaint was filed on May 23, 1993, and
not on February 23 of that year.
testimonies of witnesses and request by the plaintiff for an
exhumation and autopsy, which was later performed by the
Departmental Coroner, Ana Lissette García de Crocker.
Submitted to the Commission on August 22, 1994.
In the information supplied on July 14, 1995, the State ratified its
position with respect to the reasons that prevented an autopsy from
being performed on Tomás Lares Cipriano, saying that said reasons
are shown in the record of the proceedings.
In the information supplied on July 14, 1995, the State ratified its
position with respect to the reasons that prevented the
reconstruction of the events that surrounded the death of Tomás
In its communication of [date]
Guatemala is a state party to the American Convention, having
ratified it on May 25, 1978.
Inter-Am Ct. H.R., Velásquez
Rodríguez Case, Judgment of July 29, 1988.
C, Nº 4, paras. 63-64;
Godínez Cruz Case, Judgment of January 20, 1989.
C, No. 5,
paras. 66-67; Fairén Garbi and Solís Corrales Case, Judgment of
March 15, 1989. Series
C, No. 6,
Inter-Am Ct. H.R.,
Velásquez Rodríguez Case, Ibid.
Advisory Opinion OC-8/87 of January 30, 1987.
In that of March 29, 1999.
In some of their communications, the State and the petitioners
mention that the arrest warrants were issued and reissued,
respectively, on July 30, 1993 and May 6, 1995.
Report Nº 33/99, Case 11.763, Plan de Sánchez Massacre, Guatemala,
March 11, 1999, paras. 24-28.
Inter-Am. Ct. H.R., Mayagna (Sumo) Awas Tingni Community Case,
Preliminary Objections, Judgment of February 1, 2000, Series C, Nº 66,
paras. 54 y 55.
Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Preliminary
Objections, Judgment of June 26, 1987.
C, Nº 1, para. 88;
Godínez Cruz Case, Preliminary Objections, Judgment of June 26,
C, Nº 3, para. 90;
Fairén Garbi and Solís Corrales Case, Preliminary Objections,
Judgment of June 26, 1987. Series
C, Nº 2, paras. 87;
Loayza Tamayo Case, Preliminary Objections, Judgment of January 31,
C, Nº 25, para. 40.
Plan de Sánchez Massacre, see note 29 supra, para.
See para. 17 supra.