October 6, 1993
1. On January 22,
1992, the Inter-American Commission on Human Rights received the
Alejandro Piché Cuca, a Guatemalan citizen, left his home in
Santa María de Jesús, Department of Sacatepéquez, Guatemala, on April
27th, 1991 headed for the Catholic Church's Pastoral Training Center in
Santa María de Jesús where he was taking instruction as a
At around 7:00 p.m., as Mr. Piché Cuca was talking with some
other people in the Church atrium, he was taken by soldiers, who pushed
him and other unidentified persons into a truck.
On May 6, 1991, Mr. Manuel Piché Tepaz, father of Alejandro Piché
Cuca, went to the Human Rights Office of the Archbishopric of Guatemala
City for help in filing a complaint about the irregular way in which his
son had been recruited. That same day, May 6, the Human Rights Office of the
Archbishopric of Guatemala City filed an application for a writ of habeas
corpus with the courts, on behalf of Alejandro Piché Cuca.
On May 24, 1991, the Human Rights Office of the Archbishopric of
Guatemala City, which was representing the family of Mr. Piché Cuca,
was notified of the decision handed down on May 8 of that year by the
lower court for the Department of Huehuetenango, declaring the
application filed on behalf of Mr. Piché Cuca inadmissible.
In the preamble to that resolution, the lower court based its
decision on statements by Staff Infantry Colonel Sergio Arnoldo Camargo
Muralles, Commander of the 19th military zone, who said that he was
unaware of how Alejandro Piché Cuca was recruited.
The judge stated that the procedure used to recruit Alejandro
Piché Cuca was unknown.
On May 25, 1991, the Human Rights Office appealed that lower
court ruling. Even though
there is no express provision for appeal against court rulings that
dismiss applications for a writ of habeas corpus, the Human
Rights Office filed the appeal on the basis of Article 113 of the Law on
Amparo, Habeas Corpus and Constitutionality, which
provides that "whenever pertinent, the provisions relative to amparo
shall apply as well to habeas corpus and to the good judgment and
discretion of the courts." Article
61 of that Law states that the following are subject to appeal:
Rulings on applications for amparo; the orders that deny,
grant or revoke provisional amparo; court decisions that order
payment of costs and damages; and court orders that close the
On July 23, 1991, Guatemala's Supreme Court ruled that habeas
corpus remedies were not subject to appeal and declared the petition
From the time of his enforced recruitment, Alejandro Piché Cuca
spent ten months in the Gregorio Solares Military Zone of Huehuetenango.
He was then transferred to another military post and is still
serving in the Guatemalan Army.
of the remedies filed. The petitioners argued that the remedy of habeas corpus
was the proper means to settle the case of Mr. Piché Cuca, under the
provisions of Article 82 of the Law on Amparo, Habeas Corpus
and Constitutionality: "Anyone
who has been unlawfully imprisoned, arrested, or had his personal
liberty restricted, who has been threatened with the loss of said
freedom or harassed, has the right -even when said imprisonment is done
on legal grounds- to request that he be brought before the courts
immediately, either to have his freedom restored or guaranteed or to
have any harassment or coercion to which he may be subjected brought to
The petition adds that experience indicates that in Guatemala the
petitions of habeas corpus to settle cases of enforced
recruitment have been ineffective. The petition goes on to state that in this respect the
instant case is similar to the Velásquez Rodríguez case, where
the Inter-American Court of Human Rights stated that "a remedy must
also be effective --i.e., capable of producing the results for which it
was designed. Procedural
requirements can make the remedy of habeas corpus ineffective: if it is powerless to compel the authorities; if it presents
a danger to those who invoke it; or if it is not impartially
applied". (Inter-American Court of Human Rights, Velásquez Rodríguez
Case, Judgment of July 29, 1988. Series
C, No. 4, paragraph 66).
3. Rights that
have been violated but that are guaranteed by Guatemalan law.
The petitioners point out that the unlawful detention of
Alejandro Piché Cuca is a violation of rights upheld in Guatemala's
Constitution: the right to
personal liberty and the right to freedom of movement.
The right to personal liberty is guaranteed in Article 6 of the
Constitution, which states that "no one may be detained or arrested
except for some crime or misdemeanor and by virtue of a warrant issued
in accordance with the law by a competent court authority.
Exceptions are made for those caught flagrante delicto or
in the act of committing a misdemeanor."
Article 26 of the Constitution regulates freedom of movement as
individual is free to enter, remain in, move about and leave the
national territory and change domicile or residence, subject only to
those restrictions established by law."
4. According to the
petition filed with this Commission, the method used to recruit Mr. Piché
Cuca was unlawful because none of the procedures established in Article
77 of the Statutes of the Guatemalan Army was observed.
Those procedures are: 1)
voluntary enlistment; 2) conscription; and 3) involuntary conscription
when the draft notice is disobeyed.
The petition states that the purpose of these procedures in
Guatemalan Law is to protect the personal liberty and freedom of
movement of the citizenry, and to enable them to avail themselves of the
exemptions from military service that the law allows.
Those exemptions are governed under articles 71 to 75 of the
Guatemalan Constitution, and include permanent exemptions as well as
temporary exemptions. As
the petition states, the method of recruitment in Mr. Piché Cuca's
specific case, makes it pointless to claim any exemption or considerably
limits their efficacy, thereby making the law ineffective.
guaranteed under the American Convention on Human Rights that were
allegedly violated. According
to the petition submitted to this Commission, in the case of Mr.
Alejandro Piché Cuca the State of Guatemala allegedly violated its
obligation to respect and guarantee the right to personal liberty
(Article 7), the right to privacy (Article 11) and freedom of movement
(Article 22), guaranteed under the American Convention on Human Rights
by virtue of Article 1.1 thereof.
6. The petition ends
with the following specific pleadings:
that the Commission finds that the Government of Guatemala has
violated the aforementioned rights upheld in the American Convention on
Human Rights; that an investigation be conducted to ascertain the
whereabouts and circumstances of Mr. Alejandro Piché Cuca so that he
might be released and the violation of his rights cease; that the victim
and his next-of-kin be paid fair compensation for the damages caused and
any earnings lost; and finally, because Guatemala has recognized the
binding jurisdiction of the Inter-American Court of Human Rights, that
at the appropriate time this case be submitted to that Court.
7. The appendices
attached to the petition included a copy of the application for a writ
of habeas corpus, dated May 6, 1991; a copy of the lower court
ruling dated May 6, 1991; a copy of the lower court ruling, dated May 8,
1991; a copy of the Supreme Court decision, dated May 28, 1991, and
notified on July 23, 1991; a copy of Guatemala's Law on Amparo,
Habeas Corpus, and Constitutionality; the Guatemalan Army Statutes;
and a copy of the report of the independent expert, Mr. Christian
Tomuschat, on the human rights situation in Guatemala, prepared pursuant
to paragraph 14 of resolution 1990/80 of the Commission on Human Rights
of the United Nations Economic and Social Council and published on
January 11, 1991.
8. On February 4,
1992, the Commission forwarded the pertinent parts of the petition to
the Government of Guatemala, asking that it supply the corresponding
information, in accordance with Article 34 of the Commission's
Government's reply. In
response to the Commission's request, in a note dated April 3, 1992, the
Government of Guatemala confined itself to stating that on March 23 of
this year, the Ministry of Defense sent Communication No. 3347, signed
by Brigadier José Luis Quilo Ayuso, stating the following:
"In this regard, I should inform you that since May 1, 1991,
soldier ALEJANDRO PICHE CUCA has been in active service in Military Zone
No. 19, stationed in Huehuetenango, and is performing his military
information from the petitioner.
On April 21, 1992, the petitioner sent additional information on
this case, providing background information on the practice of enforced
recruitment used by the Guatemalan Army and probative evidence as to how
widespread this practice is in Guatemala.
11. In a note dated
May 12, 1992, the Commission forwarded to the Guatemalan Government the
additional information supplied by the petitioner.
No response has been received.
12. On June 3, 1992,
the petitioner added statements which several eyewitnesses made in the
presence of a notary public concerning the events in this case.
Three witnesses asserted that "in effect, on the day in
question (April 27, 1991), they were standing near the atrium of the
local Catholic church when the local military commissioners, Simeón Pérez
and Emilio Sunún, approached Alejandro Piché Cuca and took him away by
force." Also sent to
the Commission was a sworn statement made in the presence of a notary
public by Manuel Piché Tepaz, father of the individual in question, in
which he described the serious predicament of the family of Alejandro
Piché Cuca as a result of the latter's enforced recruitment and the
agony which they experienced during the period when they knew nothing of
13. In a note dated
June 5th, 1992, the Commission forwarded to the Guatemalan Government
the additional information supplied by the petitioner.
No response was received.
14. On March 12,
1993, the Commission adopted a provisional version of this report in
accordance with Article 50 of the Convention.
That version was sent to the Government with recommendations for
implementation by the latter before a given deadline. The deadline was later extended, at the Government's request,
until September 19, by which date the Government had not submitted its
reply to the report.
information provided by the Government.
During this period the Government sent the Commission information
on the military status of Mr. Piché Cuca.
The Commission feels it should take this information into account
even though it did not constitute a formal Government reply to the
preliminary report. The
following items are included:
issued by INTECAP, the Instituto Técnico de Capacitación Profesional
(technical professional training institute), that Mr. Piché Cuca is
actively enrolled in the carpentry course.
that Mr. Piché Cuca is actively serving in the Third Squadron, Fourth
Platoon, Second Company, Third Infantry Battalion at Military Zone 19
attesting to infantryman Piché Cuca's promotion to infantry corporal.
listing Corporal Piché Cuca's leave and vacation time.
note from a friend of the family, certifying that he himself visits his
of payees of army checks, in which the father of Piché Cuca, who
himself says he has received the corresponding payments, is shown as a
As to the procedure:
16. The background
information under examination shows that the subject matter is within
the Commission's competence because it concerns events that would be a
violation of the rights recognized by the American Convention on Human
Rights and because the petition was filed within the statutory time
limit referred to in Article 46.1.a of the Convention.
17. The domestic
remedies is considered to have been exhausted, because the application
for a writ of habeas corpus, which would be the appropriate
remedy in the case in question, was declared inadmissible and the
Supreme Court upheld the lower court ruling.
18. According to
information in the Commission's possession, the subject of the petition
is not pending in any other international proceeding for settlement
(Article 46.1 of the Convention).
19. In accordance
with Article 48.2 of the Convention, the Commission made itself
available to the parties so that a friendly settlement might be reached,
but to no avail.
20. That the corresponding procedural steps set forth in Article
50 of the Convention have been carried out, but no formal reply to the
recommendations contained in the provisional report has been received
from the Government.
As to the merits:
21. In its response
to this Commission, the Guatemalan Government did not provide any
additional information that would discredit the facts reported to the
Commission, namely, that Mr. Alejandro Piché Cuca was taken forcibly
and unlawfully, by military commissioners who are agents of the
Guatemalan State, put on board a truck and taken, along with others, to
a military garrison.
investigation conducted by the Guatemalan legal authorities was patently
inadequate, judging by the information made available in the instant
case. That investigation
lasted only two days (May 6 to 8, 1991) and the judge declared that the
procedure used to recruit Alejandro Piché Cuca was not known.
According to the information on file in this case, the only
inquiry the judge made was to request information from Staff Infantry
Col. Sergio Arnoldo Camargo Muralles, Commander of Military Zone No. 19,
who said that he did not know how Alejandro Piché Cuca was recruited.
The judge did not adhere to the provisions of Article 88 et seq
of the Law on Amparo, Habeas Corpus and Constitutionality,
because as he did not request from the Military Commander a detailed
report on what transpired at the time Mr. Piché was taken by the
military commissioners. Because
of his statute and given the circumstances, that military officer was in
the best position to obtain all the background information on the case.
Also, the judge did not visit the place where Alejandro Piché
was located and did not ask that he be brought before him.
23. The petition
included abundant evidence stating to the fact that in Guatemala,
remedies of habeas corpus are ineffective and the lack of
efficacy in the instant case is not an isolated one but part of a
general pattern. Hence, the
conclusion is that there are no effective legal mechanisms in Guatemala
to resolve complaints involving enforced recruitment into the Army.
24. The information
supplied with the petition shows that public statements have been made
on the case and that the proper Guatemalan authorities have failed to
react. According to the
information supplied, the problem was publicized nationwide, especially
through the Human Rights Office of the Archbishopric of Guatemala City. One of the documents the office prepared was a "Report
on denial of petitions of habeas corpus filed by the Human Rights
Office of the Archbishopric of Guatemala City and
enforced military recruitment, a persistent violation of human
rights in Guatemala."
25. The publicity
given to this case and to others like it in Guatemala, the knowledge
that the Government of Guatemala has of the abuses committed through
enforced recruitment and the fact that this practice persists
demonstrate that the Guatemalan State, under the authority of its
administrative, military and judicial agent, has no real interest in
correcting this problem.
26. That, during
its on-site visit to Guatemala in September 1993, the Commission was
able to verify that, although steps had been taken to see that military
recruitment was carried out in actual observance of legal provisions,
abuses continued, especially irregularities committed by the military
commissioners--arbitrary detentions of potential recruits, without prior
observance of the legal notification requirements, and with no
opportunity for the recruits to demonstrate they had legitimate grounds
for exemption or that the call to military service was incorrect for
27. During its
visit, the Commission was also able to verify that discriminatory
recruitment practices that make young Maya-Quichés almost a majority of
conscripts persist. These
practices consist mainly of strict application of recruitment criteria
to the rural and indigenous populations while youths from mestizo,
urban, and higher-income groups are almost automatically exempted.
28. That on
October 6, 1993, the Commission approved Final Report Nº 36/93 drawn up
under Article 50 of the American Convention on Human Rights,
in which it discussed the facts giving rise to the petition, drew
conclusions thereon, and made recommendations to the Government, giving
it thirty days to carry them out and report to the Commission.
29. That on
November 9, 1993, the Government responded with information showing that
Mr. Piché Cuca was serving in the army and enjoying his legally
entitled benefits, and, since no offense had been proven, further
investigation and compensation or reparation were unwarranted.
30. That the
reply and the elements it contains, which generally repeat those
indicated in consideration Nº 15 of this report, presents no new
evidence to refute the facts denounced or to prove that adequate
measures, as required in Report Nº 36/93, were taken to resolve the
31. That the
Commission has no new evidence to justify changing the original report's
THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS,
the facts denounced in the communication of January 22, 1992, concerning
Mr. Alejandro Piché's forced recruitment into the army are serious
violations of the Guatemalan Government's obligation to respect and
guarantee the right to personal liberty (Article 7), the protection of
human dignity (Article 11) and the right to freedom of movement (Article
22), guaranteed in the American Convention on Human Rights, in
connection with Article 1.1 of that same legal instrument.
the Government of Guatemala is responsible, through action or inaction,
for the events that may have led to the forced recruitment in this
complaint, since judging by the complaint and the evidence available to
the Commission, individuals or agents intervened in those events,
operating on the authority of the Government or with its acquiescence.
the State of Guatemala is also held responsible for the judicial and
military authorities' lack of compliance in this case with the Law of Amparo,
Habeas Corpus and Constitutionality, hereby violating the provisions on
guarantees and judicial protection in Articles 8 and 25 of the American
the Government of Guatemala neither conducted a full and impartial
investigation to determine who was responsible for the reported acts,
nor punished the guilty parties, nor compensated the victims' relatives.
the Government of Guatemala still has not taken the corrective measures
needed to stop the forced recruitment of persons into the military, nor
has it complied with the pertinent legal requirements to end
discriminatory recruitment practices against certain persons and/or
sectors of Guatemalan society.
publish this report pursuant to Article 48 of the Commission's
Regulations and Article 53.1 of the Convention, because the Government
of Guatemala did not adopt measures to correct the situation denounced
within the time period.
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