The petitioners in the instant case (the Center for Human
Rights Action) allege that the State of Guatemala violated the human
rights of the workers on the Finca “La Exacta” (also
referred to in the case file as the Finca “El Ceibal” or
the Finca “San Juan del Horizonte”), in Coatepeque,
Quetzaltenago, when the Guatemalan police, using extreme force,
entered the estate on August 24, 1994, in an incident that left three
workers dead and 11 seriously injured.
The petitioners allege that the State committed other
violations by failing to provide access to justice and to judicial
protection for the workers of Finca “La Exacta”, in
connection with the events of August 24, 1994 and other claims of the
workers, based on Guatemalan law.
After careful examination of these claims, the Commission
concludes that the State of Guatemala violated Articles 1, 4, 5, 8,
16, 19 and 25 of the American Convention of Human Rights (hereinafter
A. Allegations of the petitioners
According to the petitioners, in early 1994 with the help of
the leaders of the Federation of Guatemalan Workers Unions (“UNSITRAGUA”),
the workers on the Finca “La Exacta” began to organize and
protest against their working conditions. Neither the Guatemalan labor
courts nor the estate management took any action, and on July 17, 1994
the workers occupied the estate.
On August 24, 1994, agents of the Guatemalan security forces
invaded the estate and used excessive force against the occupiers.
According to the petitioners, the agents forced their way into
the estate with a tractor and began to fire their weapons and to throw
teargas bombs without any provocation.
Three persons were killed and 11 injured in the clash.
The petitioners allege that the Government of Guatemala
subsequently failed to properly investigate these acts and to punish
the perpetrators. They
also allege that the Government of Guatemala was guilty of the denial
of justice when it failed to give the workers due process, an
opportunity to be heard, and adequate judicial remedies with respect
to their labor demands.
Position of the Government
The Government of Guatemala has argued that the petitioners’
complaint is inadmissible, because all domestic remedies have not been
exhausted. It alleges
that a proper investigation is being carried out and that it has not
yet been completed.
The Government has put forward arguments in which it seeks to
refute the allegations of the petitioners regarding the use of
excessive force by police officers on August 24, 1994.
For its part, it claims that the police team entered the estate
with a court order and that the occupants were in possession of
Processing of the case
On September 8, 1994 the petitioners submitted to the
Inter-American Commission on Human Rights (the “Commission”) a
request for precautionary measures and requested that a case be opened
based on the events of August 24, 1994 on the Finca “La Exacta”.
On September 9, 1994, in accordance with Article 34 of the Regulations
of the Commission, case 11.382 was opened and the Commission
transmitted to the Government of Guatemala the pertinent parts of the
complaint it had received. The
Government was requested to submit such information as it considered
pertinent within a period of 90 days.
On September 19, 1994, the Commission requested the Government
of Guatemala to take provisional measures, in accordance with Article
29 of its Regulations, to protect the life and security of the 12
persons involved in the incident on the Finca “La Exacta”.
It also convened a hearing on the case, on September 23, 1994.
A hearing was held at the Commission’s 87th period
of sessions, at which both parties to the case were present.
On that occasion the petitioners filed a formal complaint in
which they repeated the information contained in the original request
for precautionary measures to be taken.
The Commission also announced at the hearing that it was
placing itself at the disposal of the parties with a view to reaching
a friendly settlement. The
petitioners indicated their acceptance of the Commission’s offer.
After the hearing, the Commission sent a letter to the
Government reiterating its offer to place itself at the disposal of
the parties to negotiate a friendly settlement.
The Government did not reply to this communication.
On September 28, 1994 the Government communicated its reply to
the Commission’s request for the adoption of precautionary measures.
This reply was transmitted to the petitioners on October 5,
On November 17, 1994 the Commission received the reply of the
Government in the central case. The
Commission transmitted the Government’s reply to the petitioners on
November 21, 1994.
On September 6, 1995 a second hearing was held on the case at
the Commission’s 90th period of sessions.
At the hearing, the petitioners submitted a number of
documents, which were transmitted to the Government on September 7,
1995. On September 27,
1995, the Commission received a statement amicus curiae in connection with the case.
On December 4, 1995 the Commission transmitted communications
to the Government and to the petitioners, placing itself once more at
the disposal of the parties to begin negotiations aimed at reaching a
friendly settlement. The Commission requested the parties to respond within 30
The petitioners submitted their reply in English on December
14, 1994. On December 22,
1995 the petitioners submitted their reply in Spanish, including the
arguments put forward in their original reply in English, as well as
updated information on the case.
The petitioners’ reply was transmitted to the Government on
December 29, 1995.
On January 23, 1996 the Government replied to the Commission’s
communication regarding a friendly settlement.
The Government informed the Commission that it did not believe
that it was appropriate to discuss a friendly settlement, because the
investigations and internal proceedings in the case had not been
completed. The Government also provided the Commission with updated
information on the status of the investigation. The Commission transmitted the Government’s report to the
petitioners on January 24, 1996
On February 16, 1996 the Commission received the Government’s
reply to the reply of the petitioners.
This reply was transmitted to the petitioners on February 29,
By letter dated August 21, 1996 the Commission, pursuant to
Article 48(1) of the Convention, requested the Government to furnish
documents that it considered necessary to conduct a proper examination
of the case. On October
10, the Government sent the Commission a communication enclosing all
of the requested documents.
1. Formal requirements for
The complaint meets the formal requirements for admissibility
set out in the American Convention on Human Rights and in the
Regulations of the Commission. In
accordance with Article 47(b) of the American Convention on Human
Rights (hereinafter “the Convention”), the Commission is competent
to consider the case since the petition states facts that tend to
establish a violation of the rights guaranteed by the Convention.
With regard to Articles 46(1)(c) and 47(d) of the Convention,
respectively, the Commission has received no information to indicate
that the subject of the petition is pending in another international
proceeding for settlement or that it is substantially the same as one
previously studied by the Commission.
In accordance with Article 48(1)(f) of the Convention, the
Commission offered to place itself at the disposal of the parties with
a view to reaching a friendly settlement of the matter.
The Government of Guatemala communicated to the Commission its
decision not to participate in negotiations aimed at reaching a
of Domestic Remedies
In accordance with Article 46(2) of the Convention, the
requirement for the exhaustion of remedies under domestic law, which
is contained in Article 46(1)(a), is not applicable in this case.
Article 46(1)(a) requires that “the remedies under domestic
law should have been pursued and exhausted in accordance with
generally recognized principles of international law”.
Nonetheless, the Convention provides in Article 46(2)(b) that
requirement of exhaustion of the remedies under domestic law shall not
be applicable when “the party alleging violation of his rights has
been denied access to the remedies under domestic law or has been
prevented from exhausting them”.
In accordance with Article 46(2)(c), the requirement for
exhaustion of remedies under domestic law shall not be applicable when
“there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies".
The Inter-American Court of Human Rights (hereinafter “the
Court”) has ruled on these principles, making it clear that in order
to invoke the requirement of exhaustion of remedies under domestic law
with a view to rejecting the jurisdiction of the inter-American
system, the Government must demonstrate not only that an adequate
remedy is available under domestic law, but that such remedy is “effective”.
Exhaustion of domestic remedies with regard to the complaint of
lack of judicial protection for the employment claims of the workers
The Commission notes that the fundamental aspect of the
complaint of failure to provide judicial protection for the employment
claims of the workers on the Finca “La Exacta” is
based on the contention that the workers were not afforded the right
to due process nor the opportunity to be heard for the settlement of
their claims, and that the labor courts of Guatemala were guilty of
excessive and unwarranted delays in taking action on these claims.
These allegations constitute not only a denunciation of
violations of the Convention but also an argument that the requirement
for exhaustion of the remedies available under domestic law was not
applicable to the petitioners in this case.
The Government has limited to one sentence its argument on the
question of the exhaustion of domestic remedies for the denial of
justice in the case of the workers’ claims. It merely states that
the workers and their union leaders are putting forward their claims
before the labor courts. The Government has not assumed its legal burden of
demonstrating that the remedies that were pursued to settle the
workers’ claims are effective and are being applied, without
unwarranted delays, or that further effective remedies have not as yet
been pursued and exhausted.
The Commission therefore considered that the petitioners
are excused from the requirement for the exhaustion of domestic
remedies with respect to their complaints about the lack of judicial
protection for the employment claims of the workers.
The Commission will examine the grounds for the complaints
about the lack of judicial protection for these claims in the section
on the substance of the petition.
Exhaustion of remedies under domestic law with respect to the
violations that allegedly resulted from the events of August 24, 1994
As regards the violations that allegedly resulted from the acts
committed on August 24, 1994 the Commission considers that the
petitioners are also excused from having to fulfill the requirement
for exhaustion of the remedies available under domestic law.
The Government has argued that the existence of the criminal
proceedings now underway with respect to these acts means that the
Commission does not have competence in the case.
The Commission nevertheless concludes that there has been an
unwarranted delay in the criminal proceeding that was instituted as a
result of the acts of violence of August 24, 1994.
This proceeding should have been the appropriate mechanism for
investigating the incidents, assigning responsibilities and, where
appropriate, imposing punishment.
Nevertheless, more than two years have elapsed since the acts
of violence without any formal accusation being made in the case.
The case is still in the phase of the preliminary proceeding or
Criminal Code of Procedure of Guatemala provides that, once the
defendants have been identified, the preliminary proceeding should
normally last six months.
present case, however, the Office of the Public Prosecutor has
requested extensions of the preliminary phase on four separate
The Commission is also of the view that it has not been
demonstrated that the criminal proceedings in connection with the
events of August 24, 1994 constitute an effective remedy that has been
adequately applied. On
the contrary, it has been demonstrated that the proceeding was
inadequate and ineffective. As a practical matter therefore, the victims of the acts of
August 24, 1994 have been denied access to the remedies provided under
the domestic legislation.
It became clear immediately after the police action of August
24, 1994 that no impartial investigation and prosecution of the case
would take place. Senior
officials immediately excused the action of the Guatemalan police
units before it was possible to fully determine what had happened and
without first requiring an investigation of the matter.
Barely two days after the incident, the then President Ramiro
de León Carpio declared that the forcible eviction of the workers was
a legal measure justified by the need to protect the right to property
under the rule of law.
day, the Attorney General, Ramses Cuestas Gómez, declared that the
police did not enter the estate “acting in a repressive or illegal
manner”. He said that it was likely that private security forces and
not the Government police were responsible for any violence that might
have taken place
The unwillingness of the police to collaborate in a serious
investigation that might lead to the judicial determination of
responsibilities for the acts of violence was made even clearer.
Shortly after the confrontation, the Director of the National
Police, Salvador Figueroa, rejected out of hand all accusations of
irregularities or police responsibility.
He argued that critics of the action taken by the police on Finca
“La Exacta” belonged to “destabilizing groups” in
Later, he specifically said that the police would not
carry out an investigation of the action by the police at Finca “La
As a result of the position openly taken by senior Government
officials, it became clear shortly after the occurrence of the events
in question and even before the Commission opened case 11.382, on
September 9, 1994, that the victims were unlikely to gain access to an
effective domestic remedy. The
subsequent investigations and processing under domestic law of the
criminal case arising from the acts of August 24, 1994 demonstrated
even more clearly the ineffectiveness of the domestic remedies.
The Office of the Public Prosecutor and the courts have delayed
considerably or have simply neglected to take statements from key
witnesses and have not gathered crucial evidence.
The United Nation Mission for the Verification of Human Rights
in Guatemala (MINUGUA) highlighted the problems related to the
proceeding in various reports. In
its second report, the Director of MINUGUA stated that “after eight
months, the investigation has made no progress whatsoever because of
the inaction of the Public Prosecutor’s Office which, without any
justification, has neglected to carry out basic inquiries”.
report of MINUGUA states that the case had not gone forward due to the
inaction of the Public Prosecutor’s Office and the dilatory approach
by the Court responsible for the case.
The Government has argued that these reports of MINUGUA are
outdated and do not reflect the most recent initiatives of the Office
of the Public Prosecutor to move forward the investigation of the
case. According to the
Government and the petitioners, after November 1995 the investigations
were reactivated and important witnesses summoned to testify.
Nevertheless, these new investigative measures were
recently adopted more than one year after the original acts of August
24, 1994 and many important investigative procedures have still not
been completed. There is
no evidence that a complete and adequate judicial investigation will
be carried out in the near future.
substance of the case – Proven acts and conclusions of law
Right to life and right to respect of personal integrity
Excessive use of force
The record shows that on August 24, 1994 no less than 215
agents of the National Police, supported by at least two helicopters,
invaded the Finca “La Exacta” using teargas and firearms
against the workers who had occupied the estate.
The use of such force resulted in the death of Efraín Recinos
Gómez, Basilio Guzmán Juárez and Diego Orozco.
It also endangered the entire group of workers and their
families who were occupying the estate and who suffered from the
attack. Serious injuries were sustained by 11 persons: Pedro Carreto
Loayes, Efraín Guzmán Lucero, Ignacio Carreto Loayes, Daniel Pérez
Guzmán, Marcelino López, José Juárez Quinil, Hugo René Jiménez
López, Luciano Lorenzo Pérez, Feliz Orozco Huinil, Pedro García
Guzmán and Genaro López Rodas.
The Commission will examine whether the force used was
excessive and therefore a violation of the Convention.
Several observers in Guatemala concluded immediately after the
events that the force used by the security forces was excessive.
The Bishops of Quezaltenango issued a statement shortly after
the invasion indicating that the incursion “was characterized by an
irrational use of force that bordered on brutality and savagery”.
The Counsel for Human Rights of Guatemala, Dr. Jorge Mario
García La Guardia, after conducting a careful investigation of the
incident, reached a similar conclusion.
Officials of the Office of the Counsel for Human Rights visited
Finca “La Exacta” and the hospital to which a number of
wounded persons had been taken on the same day of the events to gather
evidence. They also
interviewed witnesses and examined relevant documents.
The final conclusion of the report of the Counsel for Human
Rights, which was issued after these extensive investigations, was
that the police agents had used “excessive and unnecessary
The Government has maintained that the police agents conducted
the raid on the Finca “La Exacta” carrying with them
various arrest warrants issued against 111 workers.
The Government has placed a great deal of emphasis on the fact
that the workers occupying the estate had been accused in court for
crimes of illegal occupation and coercion.
It has argued that police action was necessary to protect the
private property of the estate owners.
The Commission has no reason to ascertain–nor does it propose
The Court’s jurisprudence clearly demonstrates that agents of
the State have the right and responsibility to enforce the law and to
maintain public order even though death or bodily injury may take
place in some cases.
the Court clearly stated also that the force used should not be
When excessive force is used, personal integrity is not
respected and any resulting deprivation of life is arbitrary.
before the Commission is therefore to determine whether the police
agents who invaded the estate to enforce the arrest warrants used
excessive force, thereby violating the Convention.
The Commission concludes that excessive force was used in this
In accordance with the international norms developed to govern
the use of force by law enforcement officials in the performance of
their duty, the use of force should be necessary and proportionate to
the needs of the situation and the objective to be achieved.
Nations Code of Conduct for Law Enforcement Officials expressly
provides that “the use of firearms is considered an extreme measure”.
The possibility that the workers occupying the estate might
have committed a crime against property and the existence of arrest
warrants against them could not in themselves justify the use of
lethal force, including the use of firearms.
The crimes for which orders of arrest were issued did not even
necessarily include an element of violence.
Nor does the
criminal complaint that gave rise to the judicial proceeding, based on
which the arrest warrants were issued, allege facts involving acts of
The use of
lethal force merely to carry out orders of arrest was unnecessary and
The Commission notes once again the content of the
international norms which provide that firearms should not be used
against persons, except where there is danger to life:
enforcement officials shall not use firearms against persons except in
self-defence or defence of others against the imminent threat of death
or serious injury, to prevent the perpetration of a particularly
serious crime involving grave threat to life, to arrest a person
presenting such a danger and resisting
their authority, or to prevent his or her escape.
The Government has offered no evidence to show that the police
agents had reason to believe that their lives or the lives of third
parties, were in danger. The
lethal force that was used, including the use of firearms was
therefore disproportionate to the danger that existed.
The Government has maintained that the persons who occupied the
estate were in possession of lethal weapons.
As proof of this, it cites the fact that certain weapons,
including firearms and bombs, which were allegedly under the control
of the occupants of the estate, were handed over to the courts on the
day of the incursion.
The Commission concludes that, despite this evidence, the
record does not show that the occupants possessed these types of
weapons. First, none of the more than 40 persons arrested after the
raid had weapons in their possession.
Second, several of the persons who were arrested after the raid
of August 24, 1994 declared that the occupants had no weapons other
than sticks and stones.
One of these
eyewitnesses stated that he had seen police agents opening an office
on the estate and taking out the weapons that were then handed over to
witness also stated that the arms had been clandestinely brought in by
47. The testimony of these witnesses about the absence of weapons is corroborated by observers from outside the area who arrived on the scene immediately after the raid. The Bishops of Quetzaltenango issued a statement in which they asserted that the occupants did not have weapons. 
Moreover, the President of Guatemala, Ramiro de León Carpio,
publicly acknowledged that he had erred in his original statement,
made after the incident, in which he had said that the occupants were
in possession of weapons and explosives.
The version of the incident that appeared in the original
police report on the events of August 24, 1994 indicates that those
occupying the estate attacked the police with lethal weapons.
According to that version, a group of occupiers, comprised
exclusively of men, attacked the police units with heavy caliber
weapons and bombs, thus posing considerable danger to the lives of the
Since the Commission rejected the argument that the occupiers
possessed lethal weapons, such as heavy caliber guns and bombs, it
must also reject this first official version of the events.
This version of the events was also rejected almost unanimously
by Government and non-government sources.
evidence of the improbability of this version is the fact that the
newspaper reports of the incidents indicate that, although some three
policemen were injured during the events of August 24, 1994, none of
the injuries was due to firearms or explosives.
Government has never attempted to present to the Commission as fact
the account that appears in the police reports.
The Government has offered no other evidence to show that there
was danger to life that merited a reaction by the police forces, which
included the use of firearms and other lethal force.
The Government has indicated that the Counsel for Human Rights
of Guatemala received several complaints in early August 1994 alleging
that several workers on the estate were being held captive by the
workers occupying the estate. However,
these complaints do not show and the Government has never claimed that
the lives of these persons were in danger or that the extreme force
used by the police was used to prevent harm to these persons.
The Commission considers that the most credible version of the
events is that on August 24, 1994, police forces arrived at the estate
with arrest warrants and attempted to negotiate at one of the gates of
the estate with the occupiers for a approximately one or two hours.
When the workers occupying the estate refused to abandon it,
the police forces penetrated inside using a Caterpillar tractor to
force their way into the interior areas.
Once they had penetrated into the part in which most of the
occupiers were concentrated, they surrounded and began to attack them
with firearms and with air support from no less than two helicopters.
The report of the Counsel for Human Rights of Guatemala, the
testimony of eyewitnesses and the reports of the Government itself
confirm this version of the events.
This sequence of events shows that the law enforcement
officials who participated in the raid of August 24, 1994 did not
ascertain, prior to attacking the workers occupying the estate, that
it was necessary to use extreme force.
According to the international norms governing the excessive
use of force, law enforcement officials “may use force and firearms
only if other means remain ineffective or without any promise of
achieving the intended result”.
In the case of the court orders, the police forces negotiated
with the occupants for only a few hours before launching a violent
incursion. During this
period, the police agents could not have known if it would be
impossible to execute the arrest warrants without recourse to the use
of extreme force, including the use of firearms.
The police agents could have waited some time more to see
whether the persons named in the arrest warrants would surrender or
leave the estate so that they could be arrested.
This failure proves that the police agents did not postpone the
use of force until it was clear that other means of achieving their
objective would be ineffective.
The way in which the police agents entered the estate and
attacked the occupants also proves that the force used was not
proportionate or strictly necessary to achieve the objective of
executing the arrest warrants. The
use by the law enforcement officials of a tractor and air support
together with heavy weapons to surround the occupants and then open
fire against them proves that the operation was much more like an
attack and an effort aimed at the forcible eviction of the families
occupying the estate than the arrest of the persons named in the
arrest warrants. The
record does not show that the judicial authorities authorized a
forcible eviction. On the
contrary, the orders which the police had when they carried out the
raid provided, specifically and exclusively, for the “detention”
of certain persons.
eviction was not a legitimate objective of the law enforcement
officials, the force used to achieve that aim was not strictly
The Commission considers it important to also point out, with
regard to its conclusion that the police units used excessive force,
that the group of workers occupying the estate who were attacked
included children. The
United Nations Code of Conduct for Law Enforcement Officials expressly
provides that every effort must be made to exclude the use of firearms
reference to the court orders, the police forces attacked the
occupants using firearms and other weapons without taking any special
precautions so as not to fire on children.
Lastly, the Commission points out that the record in this case
includes the plan of action which the police forces prepared prior to
the events of August 24, 1994 (the “Montaña plan”).
Court of Human Rights has determined that a plan for a law enforcement
operation may not provide adequate protection against the use of
excessive force and consequently may create a situation in which the
use of excessive force is likely.
Consequently, the plan represents an important indicator of
whether excessive force was used when the law enforcement activity was
Commission is of the view that these considerations are also
applicable to the case of court orders in the inter-American system.
The police plan prepared in this case provides for the use of
extreme force and sufficient safeguards were not provided to ensure
proportionality and the necessity for the force used.
The Montaña plan was subsequently executed, with the
consequent use of excessive force.
The plan provides for the “eviction” of the “invaders”. It begins by explaining that the occupiers would provoke a
confrontation with law enforcement officials.
The plan then describes as “enemy forces” the organized
workers on the estate. The
plan also mentions “destabilizing political leaders” and “subversive
groups” as other possible “enemy forces” that may turn up to
support the occupiers.
The plan then presents a list of “assumptions”.
These include a scenario in which the occupiers possessed
weapons, threw bombs upon the arrival of the police and planted land
mines in the occupied area.
The extremely strong text used in the plan and the assumptions
made envisaged a scenario that required the police units to use
extreme force. Nevertheless, neither the plan nor any other court order
indicates that any police investigation or other information
concerning the situation at Finca “La Exacta”
supported the assumptions made by the police forces.
Consequently, the plan contained incitement to use unnecessary
and disproportionate force.
In its reply of February 16, 1996 in the case now before the
Commission, the Government acknowledged that the basis for the
assumptions made in the plan lay in the experience which the police
had acquired in carrying out evictions in other estates in similar
police forces cannot act on the basis of general information to
establish a plan that requires the use of extreme force in an
individual case. The
study carried out by law enforcement officials of the need for and
type of force that should be used must be closely linked to specific
facts in order to respect the principles of proportionality and
necessity in the present case.
The Commission once again wishes to point out that the record
does not show that eviction by force was a legitimate law enforcement
objective in this case. Consequently,
a plan based on previous experiences of compulsory evictions would
necessarily lead to a type and degree of force that was more extreme
than necessary in this case, which concerned only the execution of
The degree of force envisaged under the plan was excessive.
The plan provided for the use of agents from various police
units, including the Quick Reaction Squads and the Fifth Police Corps
(anti-riot police). More
than 200 police agents were assigned to the operation.
The figure should be compared with the 111 arrest warrants that
were required to be executed, bearing in mind that the record does not
show that all of these 111 persons were actually on the estate.
The police agents had to be transported in six buses and four
trucks. The plan also
provided for the use of a helicopter and a tractor.
The police agents were required to carry with them long
truncheons, teargas, pistols and guns.
The Commission considers that this degree of force was
disproportionate and unnecessary to achieve the objective of executing
the pending arrest warrants.
The Commission concludes that the plan in no way provided
adequate guarantees for the avoidance of excessive use of force. In a
16-page plan for an operation with heavy weapons, only a brief mention
is made on page 14 of the need to limit the force to be applied.
Instruction Nº 11 provides that “the use of firearms is expressly
prohibited, except in self-defense”. Although the plan recognizes
that children could be present at the time of the raid, no protection
is provided for them in the event that the use of force became
necessary. The Commission considers that the type of force to be used,
together with the failure to clearly indicate to the police units that
they should limit the use of the force applied, made it inevitable
that excessive force would be used.
The Government provided the Commission with a copy of the
Montaña plan, which differs from the plan examined by the Commission.
This second version of the plan, which was sent to the
Office of the Public Prosecutor by the National Police on January 5,
1995, does not use the same language of the plan examined by the
Commission. For example, this version says “possible opposition
figures” instead of “enemy forces” and does not include in this
category trade union leaders and subversive groups. Nor does it
mention an eviction and it places greater emphasis on control by the
police officers of the use of weapons.
However, the document that contains the original Montaña plan
examined by the Commission, which is in the file, clearly indicates
that this plan was indeed sent to the police units that participated
in the raid and that these units received the plan before the
operation took place. Consequently, the copy of the Montaña
plan provided by the Government does not lead the Commission to
conclude that the second and more acceptable version was distributed
and implemented. On the contrary, the Commission must conclude that
the agents of the Government recognized the compromising nature of the
original plan and therefore provided a modified version of it for use
in the criminal investigation of the case.
Based on these considerations, the Commission concludes that
the Guatemalan police forces used excessive force on August 24, 1994
and therefore arbitrarily deprived Efraín Recinos Gómez, Basilio
Guzmán Juárez and Diego Orozco of their lives, thereby violating
Article 4(1) of the Convention. The Government agents responsible for
the excessive use of force also violated Article 5(1), which protects
the right to physical, mental and moral integrity for the group of
occupants of the estate who were attacked and, in particular, for the
11 persons who were seriously injured.
of Diego Orozco García
The information available to the Commission shows that Diego
Orozco García received a bullet wound to the chest during the police
raid on Finca “La Exacta” and that this wound was at least
in part the cause of his death.
also shows, however, that Diego Orozco García was taken alive from
the estate in one of the helicopters used in the police operation and
that his body was found days later some 60 kilometers from the estate.
The forensic report that was prepared concluded that Mr.
Orozco died from a bullet would and severe bruises and lacerations on
his face, chest and upper body. The report also indicated that the
corpse showed signs of having been tied by the hands and chest and
dragged over a rough surface.
The Commission concludes that, in addition to being a victim of
the excessive force used by the police units, Mr. Orozco was tortured
before his death. The forensic report establishes that his hands and
chest were tied. He must have undergone this treatment while still
alive and suffering from the bullet wound to his chest. When he was
taken from Finca “La Exacta”, Mr. Orozco already had a
bullet wound and there would have been no reason to tie him after his
death. The forensic report also establishes that Mr. Orozco suffered
other violent treatment that caused bruises and lacerations. The
Commission concludes that the acts committed against Mr. Orozco
constituted torture, in direct violation of Article 5(2) of the
Convention, which expressly prohibits the use of torture.
The torture to which Mr.
Orozco was subjected also constitutes a violation of the
Inter-American Convention to Prevent and Punish Torture (“Convention
against Torture”), which was ratified by the Government of Guatemala
on 29 January 1987.
2 of the Convention against Torture defines torture as follows:
any act intentionally performed whereby physical or mental pain or
suffering is inflicted on a person for purposes of criminal
investigation, as a means of intimidation, as personal punishment, as
a preventive measure, as a penalty, or for any other purpose.
treatment suffered by Diego Orozco at the hands of Government agents,
as emerges from the type of bodily injuries described in the forensic
report, is consistent with this definition of torture.
to freedom of association
The Commission proceeded to examine the claim that the
Government agents who carried out the raid of August 24, 1994 also
violated Article 16 of the Convention, which protects the right to
freedom of association. Article 16(1) provides that “everyone has
the right to associate freely for …… labor
….. or other
In February 1994, the workers on Finca “La Exacta”
organized themselves into a union with the assistance of UNSITRAGUA.
On February 18, 1994 the workers on Finca “La Exacta”
petitioned the labor courts of Guatemala to institute proceedings in
connection with a labor dispute of an economic and social nature
arising from a conflict with the owners of Finca “La Exacta”.
The filing included a set of petitions by the workers
against the owners and administrators of the estate.
In early March 1994, the owners and administrators of Finca
“La Exacta” began to dismiss workers who had signed the
petition to initiate the process related to the collective bargaining
dispute. According to undisputed information submitted by the
petitioners, during the first week of March, more than 60 workers were
The workers immediately instituted proceedings for their
reinstatement with the Second Labour Court.
The owners of the estate continued to refuse to reinstate
the workers or to discuss their claims, and the courts also failed to
take action. The workers subsequently occupied Finca “La Exacta”
on July 17, 1994.
This background to the raid of August 24, 1994 and the way in
which the raid was planned and executed show that the purpose was to
suppress the labor movement and its activities on Finca “La
Exacta”. As stated in the section above, the raid was executed
using excessive force for the sole purpose of fulfilling the
legitimate police obligation to execute warrants of arrest. Moreover,
as already pointed out, the “organized peasant groups” and “union
leaders” were identified as “enemy forces”.
The Commission also notes that the owners of the estate and the
owners of other neighboring estates collaborated with the police in
execution of the operation of August 24, 1994. The plan of operation
provided for the “interested parties” to give logistical support
to the operation, including air support, buses and trucks, as well as
food for the participating police agents.
The testimony of the helicopter pilot Carlos Alberto
Enríquez Santizo was that he transported in his helicopter Alvaro
Blanco, one of the owners of the company and estate known as La
Exacta, during the raid.
According to uncontested information provided by the
petitioners, private security agents attached to Finca “La Exacta”
wore police uniforms and participated in the raid. The testimony of
the National Police agent who prepared the plan of operation was that
the owner of a neighboring estate provided another helicopter for use
in the raid.
On the day of the raid, the owners and administrators of Finca
“La Exacta” had already shown an interest in suppressing the
union activity and punishing participants. As mentioned before, in
reaction to the formation and organization of a union movement on the
estate and the presentation of a labor dispute petition, Finca
“La Exacta” terminated the contracts. The owners and
administrators, moreover, refused to agree to initiate the proceedings
that govern labor disputes or to engage in any negotiations with the
organized workers on the estate.
The desire of the estate owners to suppress the union movement
was also evident from the evidence found after the raid of August 24,
1994. After the raid, angry workers from neighboring estates rushed to
Finca “La Exacta” and disarmed and detained the private
security agents working for Finca “La Exacta”. Hugo René
Murga Izguirre, a retired army colonel who headed the private security
team, was searched while under detention. According to uncontested
information provided by the petitioners, a document was found on his
person that contained the names of representatives of UNSITRAGUA, the
union organization that had advised the workers on Finca “La
Exacta”. The document contained the names of Luis Mérida and
Guillermo Monzón and the license plate numbers of their cars. It may
be assumed that the private security agent was in possession of this
document because he had been asked to subdue the persons listed by
Commission considers that the examination of the plan and of the
police operation of August 24, 1994, together with the collaboration
of the owners of the estate and other neighboring estate owners, show
that the police units did not act with objectivity as law enforcement
officials on August 24, 1994 but acted instead to achieve the
objective of the estate owners, which was to take reprisals against
the activity of the movement of rural workers that arose on Finca
“La Exacta”, and to suppress it.
In coming together in a trade union to carry out union
activities, the workers had embarked on an initiative protected by
Article 16 of the Convention. The Government agents, who worked with
the owners of the estate, punished with the severest sanction
possible, the decision of the workers of Finca “La Exacta”
to form a trade union organization, by killing three men, seriously
wounding 11 others and endangering the lives and security of an entire
group of persons. The reprisals taken against the union activities and
the suppression of the trade union movement constitute a violation of
of the child
Article 19 of the Convention provides that “every minor child
has the right to the measures of protection required by his condition
as a minor”. In the raid of August 24, 1994 the Guatemalan police
agents used excessive force against a group of persons that included
minors. As noted above, the Guatemalan security forces recognized in
the plan prepared before August 24, 1994 that minors would be present
during the raid on the estate. Since minors are particularly
vulnerable, the international norms and Article 19 of the Convention
require that special measures be taken to prevent them from being
victims of violence.
Despite this, in this case, the plan of the security
forces for the raid did not provide for any protective measure
whatsoever to be taken for the children who would be present. The
Government therefore violated Article 19 of the Convention.
The Commission member Marta Altolaguirre, of Guatemalan nationality,
did not participate in the discussion and voting on this report, in
compliance with Article 17 (2) (a) of the Commission’s new
Regulations, which entered into force on May 1, 2001.
Court of Human Rights, case of Velásquez Rodríguez, Judgment of July
Series C Nº 4, paragraph 66.
Inter-American Court of Human Rights, case of Velásquez Rodríguez,
Preliminary Objections, Judgment of June 26, 1987.
Series C No.1, paragraph 91.
See Criminal Code
of Procedure of Guatemala, Article 323.
justifies use of force in eviction” Siglo XXI, August 26, 1994.
Cuestas: Death and violence will not go unpunished”, La República,
August 27, 1994
are trampling on human rights”, Siglo XXI, September 1, 1994.
See “El Ceibal:
National Police Director contradicts the President on official report”,
Siglo XXI, 5 September 1994.
Second Report of
the Director of MINUGUA, paragraph 67.
See Third Report
of the Director of MINUGUA, paragraph 65.
The Fourth Report
of MINUGUA states that a new prosecutor has helped to reactivate the
See Fourth Report of the Director of MINUGUA, paragraph 43(f).
Statement by the
Dioceses of Los Altos-Quetzaltenango, August 29, 1994.
The text of the pertinent parts of this statement is
11:am, without any provocation whatsoever or apparent motive on the
part of the workers, anti-riot squad officers arrived at the perimeter
of the estate, broke down the gate with a tracked-wheel caterpillar
tractor and began shooting at the workers and throwing teargas bombs.
the operation, a number of officers were struck and three helicopters
were observed flying at a very low altitude directing the police
officers and inciting them to “finish-off” the workers.
Persons who witnessed the incident declared that it was
characterized by an irrational use of force bordering on brutality and
therefore insist that:
State agencies and pubic officials base their public statements
on truthful information that is neither manipulated nor partial;
The legal responsibility of the anti-riot squad officers be
ascertained for the excessive violence and abuse of authority and for
the Office of the Public Prosecutor to launch the appropriate
investigation of the crime of murder;
The Ministry of Labor through the Office of the General
Inspector should investigate the failure of the employer to pay the
workers of the Finca San Juan El Horizonte the minimum wage and
other legal benefits and to strictly impose the appropriate penalties;
The employers should respect the right of field workers on the
estate to freely organize themselves and should fulfill their
obligations as employers.
Report of the Human Rights Attorney of Guatemala, September 6,
1994, page 4.
Nor is the
Commission required to examine the statements of the petitioners that
the occupation, although illegal, was justified by the fact that
neither the owners of the estate nor the Courts of Guatemala responded
in a timely manner to their labor dispute.
The Commission wishes to note specifically that the examination
which it carried out in this report should in no way be interpreted as
approval of the occupation of estates.
The Commission did indeed examine the reaction of the Courts of
Guatemala to the labor demands of the workers of the estate in its
analysis with respect to Articles 8 and 25 of the Convention.
Inter-American Court of Human Rights, the case of Neira Alegría et
al, Judgment of July 19, 1995, paragraph 61; case of Velásquez
Rodríguez, Judgment of July 29, 1988, paragraphs 54, 74.
Unlike the European Convention on Human Rights, the American
Convention does not expressly permit the use of necessary force,
including force that results in death, to control crime and violence.
See European Convention on Human Rights, Article 2.
Nevertheless, the jurisprudence of the American Convention
seems to establish a framework similar to the one in the European
State agents must respect the life and personal integrity of
individuals and cannot arbitrarily deprive anyone of life.
Nevertheless, they are allowed to use force, even when such
force deprives individuals of life or affect their physical integrity,
in pursuit of legitimate objectives, provided that the force used is
Alegria et al, Judgment of January 19, 1995, paras. 74-75.
See: Report on
the situation of human rights in Chile, OAS/Ser.L/V/11.66, doc.17,
September 27, 1985, pp. 67-68 (the Commission considers to be
extrajudicial deaths by execution caused by the disproportionate use
of force by law enforcement officials to suppress riots).
See Code of
Conduct for Law Enforcement Officials adopted by the United Nations
General Assembly in resolution 34/169 of 17 December 1979, Article 3
(hereinafter referred to as “Code of Conduct”); Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials, adopted
by the Eighth United Nations Congress on the Prevention of Crime and
the Treatment of Offenders, Havana, Cuba, 27 August to 7 September
1990, Articles 4-5 (hereinafter referred to as “Basic Principles”).
Code of Conduct,
Criminal Code of
Guatemala, Articles 214 and 256.
filed with the Office of the Attorney General and the Office of the
Public Prosecutor by José Alvaro Blanco Aguirre, July 19, 1994.
See statement of
Enrique Guzman Monzon, August 25, 1994, p. 3; statement of Ricardo
Guzmán Juárez, August 25, 1994, p. 4; statement of Demetrio Trinidad
Sánchez, August 25, 1994, p. 4; statement of Juan Guzmán
Huinil, August 25, 1994, p. 2;
See statement of
Enrique Guzmán Monzón, p. 3.
See statement of
Juan Guzmán Huinil, p. 2.
See statement by
the Diocese of Los Altos-Quetzaltenango, August 29, 1994.
acknowledges errors in his statements on the El Ceibal case”, Siglo
acknowledges errors in his statements on the El Ceibal case”, Siglo
31, 1994; “Government accepts error in report on eviction”,
Prensa Libre, 31 August 1994; statement of the Bishops of
See “La Exacta:
ODHA could institute proceedings against policemen involved in the
eviction”, Siglo Veintiuno, August 30, 1994.
filed with the Office of the Counsel for Human Rights by José Alvaro
Andrés Blanco Aguirre on August 1, 1994; complaint filed with the
Office of the Counsel for Human Rights by David Alexander Abbott Haim
and José Arturo Morales (attorneys for José Alvaro Andrés Blanco
Aguirre) on behalf of Marco Tulio Aguilar, Pedro Soc, Arnulfo
Velásquez, Marco Tulio Monge, Abraham Vásquez, Rafael Huinac and
Agustín Zamora, on August 9, 1994.
See report of the
Counsel for Human Rights of Guatemala, September 6, 1994, p.p. 3-4;
statement of Enrique Guzmán Monzón, August 25, 1994, p. 2; statement
of Demetrio Trinidad Delfino González Sánchez, August 25, 1994, p.
3; report of the Government, February 16, 1996, p. 5; reply of the
Government, September 28, 1996, p. 6.
warrant issued by the Second Criminal Investigation Court of First
Instance of Coatepeque,
August 1, 1994; arrest warrants issued by the Second Criminal
Investigation Court of First Instance of Coatepeque, August 16, 1994.
The arrest warrant specifically provided that the law
enforcement officials executing the orders were obliged to guarantee
that unnecessary force was not used.
See Code of
Conduct, Article 3, Commentary (c).
See Plan of
Operations No 121-94 “Montaña”,
prepared by the National Police, August 18, 1994 [hereinafter referred
to as the “Montaña Plan”].
Court of Human Rights, McCann et
al versus United Kingdom, Judgment of September 27, 1995, Series
A., vol. 324, paragraphs 201, 202, 205.
See: Plan of
Operations Nº 121-94 “Montaña”, approved by the National
Police and submitted to the Office of the Public Prosecutor on January
See: Report of
the Counsel for Human Rights of Guatemala, September 6, 1994, p. 4;
original complaint of the petitioners, p.3.
See report of the
Counsel for Human Rights of Guatemala, September 6, 1994, p. 5.
Article 29 of the
American Convention clearly provides that the norms laid down in other
international acts also apply to States parties to the Convention. The
purpose of the Convention against Torture is to serve as an auxiliary
instrument to the American Convention within the inter-American system
for the protection of human rights, extending the principles
established in Article 5 of the American Convention. Article 8 of the
Convention against Torture expressly provides that a case of torture
may be submitted to an international forum when all domestic legal
procedures have been exhausted. The Commission therefore considers
that, pursuant to Article 49 of the American Convention, the
Convention against Torture may apply directly through the mechanisms
provided for in the American Convention.
submitted to the Deputy Labor Inspector, Ministry of Labor and Social
Welfare, Coatepeque, Quetzaltenango, February 16, 1994.
instituting proceedings in the economic and social labor dispute
brought before the Second Labor and Social Welfare Court of First
Instance of Coatepeque, Quetzaltenango, February 18, 1994.
See also report
of the Counsel for Human Rights of Guatemala, September 6, 1994, p.1.
See, for example,
Claim for Reinstatement, March 3, 1994.
See: Testimony of Carlos Alberto Enríquez Santizo to the
Office of the Public Prosecutor in Coatepeque, Quetzaltenango, January
17, 1996, p.2.
See: Statement of
Francisco Filiberto Duarte Gómez to the Second Court of First
Instance of Coatepeque, Quetzaltenango, October 11, 1995, p. 10.
 See: Code of Conduct, Article 3, Commentary (c).