ERNESTO RAXACACÓ REYES
On January 28, 2002, the Inter-American Commission on Human
Rights (hereinafter “the Commission” or “the IACHR”) received a
petition submitted by the Center for Justice and International Law (CEJIL),
the Guatemalan Institute of Comparative Criminal Science Studies (ICCPG),
and the Guatemalan Public Criminal Defense Institute (hereinafter “the
petitioners”) against the Republic of Guatemala (hereinafter
“Guatemala,” “the State,” or “the Guatemalan State”) for
having imposed a death sentence on Ronald Ernesto Raxacacó Reyes
(hereinafter “the alleged victim”), in violation of Articles 1(1),
2, 4, 5, 8, 10, and 25 of the American Convention on Human Rights
(hereinafter “the Convention” or “the American Convention”). On
that same occasion, the petitioners asked the IACHR to grant
precautionary measures on behalf of the alleged victim; these were
extended on January 30, 2002, and remain in force as of the date of this
report. The Guatemalan State asked the Commission to refrain from
hearing the petitioner’s arguments and to dismiss the complaint on the
grounds that no violations of the Convention had been committed and that
domestic remedies had not been exhausted. The IACHR decided to admit the
case and to continue with its analysis of the merits.
PROCESSING BY THE COMMISSION
On January 30, 2002 the Commission opened the case, forwarded the
relevant parts of the complaint to the Guatemalan State, and asked it to
submit information within the following two months in compliance with
the provisions of Article 30(3) of the Commission’s Rules of
The State submitted its comments on May 21, 2002.
In the aforesaid communication of January 30, 2002 the IACHR
asked the State of Guatemala to adopt precautionary measures on behalf
of the alleged victim in order to safeguard his life until such time as
the Commission was able to rule on the merits of the case.
With regard to the precautionary measures, on May 21, 2002, the
State informed the IACHR that this case did not involve an imminent
threat or an arbitrary affront to a human right and so, in the State’s
opinion, the Commission’s intervention would be unfortunate in light
of the erosion of the domestic legal system that it would cause.
POSITIONS OF THE PARTIES
The petitioners claim that between August 5 and 6, 1997, the
minor child P. A. L. W, aged 9 at the time, was kidnapped by a group of
persons including Ronald Ernesto Raxacacó Reyes. The boy was released
after a police operation. Criminal charges were filed against the
kidnappers, which led to their being sentenced on May 14, 1999, when the
Sixth Sentencing Court for Criminal, Drug, and Environmental Offenses
sentenced Jorge Mario Murga Rodríguez, Hugo Humberto Ruiz Fuentes, and
Ronald Ernesto Raxacacó Reyes to death after finding them to be the
direct perpetrators of the crime of kidnapping or abduction committed
against P. A. L. W.
The petitioners claim that by imposing a capital sentence on
Ronald Ernesto Raxacacó Reyes, the Guatemalan State has incurred in a
violation of the right to life, to a fair trial, to effective legal
protection, to humane treatment, and to indemnification for miscarriages
of justice, as set forth in Articles 4, 8, 25, 5, and 10 of the American
Convention. The petitioners
further claim that the Guatemalan State failed to comply with its
obligation of respecting those rights and adopting domestic legislative
provisions, as required by Articles 1 and 2 of the Convention.
With respect to the right to life, the petitioners hold that the
State of Guatemala violated Article 4(2) in that the alleged victim was
sentenced to death for a crime–kidnapping or abduction not entailing
death–that at the time that Guatemala ratified the American Convention
(May 25, 1978) was not punishable by the death sentence, but merely by a
prison term of between 8 and 15 years;
and that the death sentence was thus imposed for a crime that, by its
very nature, cannot be considered among the most serious offenses.
Moreover, the petitioners report that in May 2000, the Guatemalan
Congress repealed Decree 159, the provision establishing the mechanism
for clemency appeals to the President of the Republic, in contravention
of Article 4(6) of the Convention.
As regards the right to a fair trial and effective legal
protection, the petitioners claim that those provisions were violated in
that the “obligatory death sentence” is the only punishment
applicable to kidnapping under Guatemalan law. Because of this, the
petitioners claim that defendants are denied the right to be tried by an
independent and impartial judge; to prepare an adequate defense and to
present evidence; and to have access to effective remedies before a
court of law.
With respect to the right to humane treatment, the petitioner
claims that the State of Guatemala has inflicted moral suffering on the
alleged victim, a form of treatment forbidden under that article, in
that Ronald Ernesto Raxacacó Reyes is being kept on death row.
As regards the right to compensation, the petitioner claims that
the State of Guatemala violated that provision in that the possibility
of detecting a miscarriage of justice and of compensating the alleged
victim for such an error is illusory, because the obligatory death
sentence does not offer any real possibilities for exercising the right
enshrined in the aforesaid Article 10.
Finally, with respect to the requirement of previously exhausting
all available domestic remedies, the petitioners maintain that Mr.
Raxacacó Reyes’s defense pursued all the remedies offered by
Guatemalan law. Thus, the petitioner notes that on September 13, 1999,
the Fourth Chamber of the Appeals Court dismissed a special appeal
remedy brought by the defense; that on June 20, 2000, the Criminal
Chamber of the Supreme Court ruled that an appeal for annulment filed on
behalf of the alleged victim was inadmissible; and that on July 28,
2001, the Constitutional Court dismissed an amparo
constitutional relief suit filed against the decision that had ruled the
appeal for annulment inadmissible.
The petitioner explains that in the case at hand, no attempt was
made to secure clemency or commutation of sentence from the President of
the Republic because the Guatemalan Congress had only some time before
repealed Decree 159, the precept governing such remedies.
In its written reply of May 23, 2002,
the State said that the petition should not be admitted because the
remedies offered by domestic jurisdiction have not yet been exhausted.
It bases this stance on statements made by Public Defender Ovidio Girón
in a meeting with COPREDEH officials on April 9 of this year and on
“the comments of the petitioners themselves.” In its submission the
State does not identify the remedies that have not been exhausted. In
its reply it also informs the Commission that it will not be making any
further statements on this case since, in its view, it entails no
violations attributable to it.
As regards the characterization of violations of the American
Convention, the State argues that under Guatemalan law, the death
sentence can only be imposed at a trial carried out in strict observance
of all guarantees of due process and that in the instant case, Ronald
Raxacacó did have access to an independent and impartial tribunal and
did pursue all means of defense necessary to challenge the courts’
decisions. The State points out that the proceedings before the court
that imposed the death sentence were conducted within the strictest
legal framework and that there are consequently no grounds for arguing
that his rights were arbitrarily threatened.
Finally, the State maintains that Mr. Raxacacó, who was tried
and found guilty in each and every proceeding brought against him, made
use of the mechanisms for rebuttal provided by Guatemalan criminal
procedure in order to defend his rights. The State claims that “this
case now stands as res judicata.”
The IACHR notes that in its reply of May 23, 2002, the State
informed the Commission that it would not be making any further
statement regarding this petition since, in its view, it contains no
violations attributable to it. The IACHR wishes to note that the State
of Guatemala has contracted a series of international obligations under
the American Convention on Human Rights. These obligations include
furnishing such information that the IACHR requires in compliance with
the powers granted by Article 48(1)(a) of the Convention.
In connection with this, the IACHR believes it should also point
out that it uses the information requested at the different procedural
stages described in its Rules of Procedure to ground its decisions
regarding the petitions or cases brought before it. The Inter-American
Court of Human Rights has ruled that cooperation by states is a basic
obligation in international proceedings under the inter-American system,
contrast to domestic criminal law, in proceedings to determine human
rights violations the State cannot rely on the defense that the
complainant has failed to present evidence when it cannot be obtained
without the State’s cooperation.
State controls the means to verify acts occurring within its territory.
Although the Commission has investigatory powers, it cannot exercise
them within a State’s jurisdiction unless it has the cooperation of
Consequently, the Commission believes it should remind Guatemala
of its duty to assist the bodies of the inter-American human rights
system in order to ensure that their functions in protecting human
rights are properly performed, including its duty of furnishing such
information as they may require.
The Commission will now analyze the admissibility requirements
set forth in the American Convention.
Competence of the Commission
The Commission has competence ratione
materiae to hear this petition since
it alleges violations of rights protected by the American Convention, to
which the State of Guatemala is a party by reason of having ratified it
on May 25, 1978.
The Commission has competence ratione
personae to hear this petition since the identities of both the
petitioners and the alleged victim satisfy the requirements set forth,
respectively, in Articles 44 and 1(2) of the Convention.
The IACHR has competence ratione
temporis to hear this petition since the obligation of respecting
and ensuring the rights protected by the American Convention was already
in force for the State on the date on which the incidents described in
the petition allegedly occurred.
Finally, the Commission has competence ratione
loci to hear this petition since it alleges violations of rights
within the territory of the respondent state party.
Admissibility Requirements of the Petition
Exhaustion of Domestic Remedies
Under Article 46(1)(a) of the Convention, for a petition to be
admissible, all the remedies offered by domestic jurisdiction must first
have been exhausted, in accordance with the principles of international
The petitioners claim that the alleged victim’s defense pursued
all the remedies for challenging the first-instance ruling provided by
Guatemala’s domestic law. They point out that on September 13, 1999
the Fourth Chamber of the Appeals Court dismissed the special appeal
remedy; on June 20, 2000 the Criminal Chamber of the Supreme Court of
Justice ruled that the appeal for annulment they filed was inadmissible;
and on July 28, 2001 the Constitutional Court dismissed an amparo suit filed on behalf of Ronald Ernesto Raxacacó Reyes. In
all these instances, the petitioners say, it was argued that the State
of Guatemala violated the provisions of Article 4(2) of the Convention
by extending the death penalty to crimes to which it was not applicable
when Guatemala ratified the Convention. Consequently, the courts were
asked not to apply capital punishment.
In contrast, although the State claimed that domestic remedies
had not been exhausted, not only did it fail to indicate exactly which
remedies were still unexhausted,
it also expressly stated that this case now stands as res judicata. In the Commission’s view, the State’s claims are
contradictory, in that the status of res
judicata, intended to protect judicial rulings
and, consequently, to protect the principle of legal security, applies
to final judgments with respect to which no ordinary or extraordinary
remedies can be brought.
Hence, the argument that the case is now res
judicata implies accepting that the conviction condemning Ronald
Raxacacó to the death penalty is final and, as such, cannot admit any
From its study of the trial documents submitted by the
petitioners, the IACHR has seen that the alleged victim’s defense did,
in fact, challenge the imposition of the death sentence and that this
challenge was ultimately dismissed by Guatemala’s Supreme Court of
Justice; additionally, it was also rejected by the Constitutional Court,
in a different set of proceedings from those pursued before the criminal
courts. The IACHR therefore concludes that with the judgment of June 20,
2000 in which the Supreme Court of Justice ruled on the appeal for
annulment, and with the decision of July 12, 2001 declaring the
inadmissibility of the amparo
suit filed against that previous judgment, all domestic remedies were
duly exhausted in compliance with the requirements set by Article 46 of
Timeliness of the Petition
Article 46(1)(b) of the American Convention rules that for a
petition or communication to be admitted by the Commission, it must be
lodged within a period of six months from the date on which the alleged
victim of a rights violation was notified of the final judgment. As the
Commission has previously stated, this rule exists to allow for
juridical certainty while still providing sufficient time for potential
petitioners to consider their position.
In the instant case, the petitioners lodged their complaint with the
Commission on January 28, 2002, while the judgment handed down by the
Constitutional Court of Guatemala–the final decision given in the
domestic proceedings–was dated June 28, 2001 and was notified to the
alleged victim on July 4 of that year, as shown by the deed included in
the case file. In other words, the complaint was lodged six months and
twenty-four days after notification of the aforesaid judgment.
The IACHR maintains that the conventional deadlines, including
Article 46(1)(b) of the American Convention, are to be strictly observed
and so, in principle, all petitions presented after the six-month
cut-off date must be declared inadmissible. However, in accordance with
the guidelines set by the jurisprudence of the inter-American system,
within certain timely and reasonable limits, and provided that a
suitable balance between justice and legal certainty is preserved, some
delays may be excused. In the case at hand, in
light of considerations both substantive and adjective, the Commission
believes it correct to apply the rule of reasonableness and to hold that
this delay does not upset the balance that the system’s bodies must
maintain between the protection of human rights and the principle of
First of all, the Commission notes the nature of this case, in
which recourse has been made to the regional system in order to protect
the right to life of a person sentenced to death under proceedings that
were allegedly in violation of the American Convention. Secondly, the
Commission notes that in its reply, the State did not argue that the
deadline had expired and that on the contrary, it claimed that the
available domestic remedies had not been exhausted. In this connection,
it should be noted that in the judgment on preliminary objections in the
case of Neira Alegría et al.,
the Inter-American Court ruled that since the six-month period depends
on the exhaustion of domestic remedies, it is for the Government to
demonstrate to the Commission that the period has indeed expired, since
it is a rule that may be waived, either expressly or by implication, by
the State having the right to invoke it.
Finally, the Commission believes it should point out that in its
view, the petitioners acted in good faith in lodging their complaint on
January 28, 2002, and by indicating that the date of the final decision
was July 28, 2001, since on the certifying deed the State incurred in
the same material error.
Duplication of Proceedings and Res
The petition dossier contains no information to indicate that
this matter is pending in any other international settlement proceeding
or has been previously examined by the Inter-American Commission. The
IACHR therefore concludes that the requirement contained in Article
46(1)(c) of the American Convention has been met.
Characterization of the Alleged Facts
The State argues that the death sentence was handed down to the
alleged victim within Guatemala’s strictest legal framework and that
consequently there is no arbitrary threat to his rights.
The Commission has stated that this stage in the proceedings is
not intended to establish whether or not a violation of the American
Convention was committed.
At the admissibility stage, the IACHR must decide whether the stated
facts tend to establish a violation, as stipulated in Article 47(b) of
the American Convention, and whether the petition is “manifestly
groundless” or “obviously out of order,” as stated in section (c)
of that same article. The level of conviction regarding those standards
is different from that which applies in deciding on the merits of a
complaint. The IACHR must conduct a prima
facie assessment to examine whether the complaint entails an
apparent or potential violation of a right protected by the Convention
and not to establish the existence of such a violation. That examination
is a summary analysis that does not imply prejudging the merits or
offering an advance opinion on them. Thus, the Commission’s Rules of
Procedure, by setting two clearly separate phases for admissibility and
for merits, reflects the distinction between the evaluation that the
IACHR must conduct to declare a petition admissible and the assessment
necessary to establish a violation.
The Commission believes that the facts in the complaint tend prima
facie to characterize a violation of the rights to life, humane
treatment, a fair trial, and judicial protection enshrined in Articles
4, 5, 8, and 25 of the American Convention, in conjunction with
State’s general obligation of respecting and ensuring those rights set
forth in Article 1(1) thereof. Additionally, the Commission believes
that the allegations regarding the State of Guatemala’s failure to
comply with the obligation contained in Article 2 of the American
Convention, if proven true, could tend to establish a violation of the
American Convention. Consequently, the IACHR concludes that the instant
petition meets the requirements set forth in sections (b) and (c) of
Notwithstanding the above, as regards the alleged violation of
the right to compensation enshrined in Article 10 of the American
Convention, the Commission notes that the text thereof states that:
“Every person has the right to be compensated in accordance
with the law in the event he has been sentenced by a final judgment
through a miscarriage of justice.” The petitioners base their claim that the right to
compensation was violated on the fact that enforcement of the death
penalty with respect to the alleged victim would prevent him from
seeking a review of the proceedings in order to secure the annulment of
the final judgment under which he was convicted, should that judgment
turn out to be the consequence of a miscarriage of justice. His
inability to secure a review of the proceedings logically implies his
inability to seek compensation for having been convicted under a
miscarriage of justice, should that be the case.
The IACHR notes that in their application the petitioners did not
claim that the alleged victim’s capital sentence was the result of a
miscarriage of justice and, further to that, they did not supply any
resolution from a Guatemalan court that would have indicated that such
an error was committed by the Guatemalan judicial authorities.
Consequently, the argument relating to the violation of Article 10 of
the Convention is based solely and exclusively on an expectation or
hypothetical situation, and not on a real, specific situation in which
the right to compensation as recognized by the Convention was violated.
The Commission therefore holds that the petitioners’ claim regarding
this particular point is manifestly groundless and consequently
inadmissible under Article 47(c) of the American Convention.
The Commission concludes that it is competent to examine this
matter and that under Articles 46 and 47 of the American Convention, the
petition is admissible with respect to Articles 1(1), 2, 4, 5, 8, and 25
of that instrument and inadmissible with respect to Article 10 thereof.
Based on the foregoing considerations of fact and law, and
without prejudging the merits of the case,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare this case admissible with respect to the potential
violation of Articles 1(1), 2, 4, 5, 8, and 25 of the American
Convention on Human Rights.
To declare this case inadmissible with respect to Article 10 of
the American Convention on Human Rights.
To ratify the precautionary measures granted on January 30, 2002,
and to request that the Guatemalan State take the steps necessary to
protect the life of Mr. Ronald Ernesto Raxacacó Reyes until such time
as the Commission has ruled on the merits of the case.
To give notice of this decision to the parties.
To continue with its analysis of the merits of the complaint.
To publish this decision and to include it in its Annual Report
to the General Assembly of the OAS.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., on the 9th day of October 2002.
(Signed): Juan Méndez, President; José Zalaquett, Second
Vice-President; Robert K. Goldman, Julio Prado Vallejo, Clare K.
Roberts, and Susana Villarán, Commissioners.
 Commissioner Marta Altolaguirre, a Guatemalan national, did not participate in discussing and deciding on this case in accordance with Article 17(2)(a) of the Commission’s new Rules of Procedure, which came into force on May 1, 2001.
Article 201 (Kidnapping or Abduction) of Decree 17/73 of 1973, in
force when Guatemala ratified the American Convention, read as
or abductions with the intent of obtaining ransoms, exchanges of
third parties, or other similar or comparable illegal purposes shall
be punishable by a prison term of between eight and fifteen years.
The perpetrators thereof shall be punished by the death sentence
when, as a result of or during the kidnapping or abduction, the
kidnapped person dies.
turn, Article 201 (amended) of Decree 81/96, currently in force and
under which the alleged victim was sentenced to capital punishment,
Those who mastermind or perpetrate the crime of kidnapping or abduction against one or more victims, with the intent of securing ransoms, exchanges of persons, the adoption of any decision contrary to the will of the kidnapped person, or any other similar or like purpose, shall receive the death sentence and, when this cannot be imposed, shall be sent to prison for a period of between twenty-five and fifty years. In such cases, no extenuating circumstances shall be admitted. Accomplices and accessories thereto shall be punished by a prison term of between twenty and forty years.
Article 48(1)(a) of the Convention provides as follows:
When the Commission receives a petition or communication (…) a) it shall request information from the government of the state indicated as being responsible for the alleged violations (…) This information shall be submitted within a reasonable period (…). b) The Commission may request the states concerned to furnish any pertinent information.
 Inter-Am.Ct.H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, paragraphs 135 and 136; and IACHR, Report Nº 28/96, Case 11.297, Guatemala, October 16, 1996, paragraph 43.
 A state claiming that a petitioner has failed to exhaust the remedies provided by domestic law has an obligation to identify the specific, available, effective resources in question. In this regard, see: Inter-Am.Ct.H.R., Loayza Tamayo Case, Preliminary Objections, Judgment of January 31, 1996, paragraph 40.
 Víctor Fairén Guillen, Teoría General del Derecho Procesal, Universidad Autónoma de México, 1992, p. 519.
 In this regard, the jurist Farién Guillen notes that res judicata means finality, no challenges, no appeals, and the preclusion of legal remedies. Víctor Fairén Guillen, Teoría General del Derecho Procesal, Universidad Autónoma de México, 1992, p. 520.
 IACHR, Case of María Eugenia Morales de Sierra, Report on Admissibility No. 28/98, May 6, 1998, paragraph 29.
 Inter-Am.Ct.H.R., Cayara Case, Preliminary Objections, Judgment of February 3, 1993, paragraph 42.
 In this regard, see: Inter-Am.Ct.H.R., “The Last Temptation of Christ” Case, Judgment of February 5, 2001, paragraph 41.
 Inter-Am.Ct.H.R., Neira Alegría et al. Case, Preliminary Objections, Judgment of December 11, 1991, paragraph 30.
 See, in this regard: IACHR, Report Nº 28/01, Case 12.367, Mauricio Herrera Ulloa and Fernán Vargas Rohrmoser of the newspaper La Nación, Costa Rica, December 3, 2001.