I.            SUMMARY 

1.            From 1990 to 1993, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) received a number of petitions alleging the extrajudicial execution of a total of fifteen persons, and the attempted extrajudicial execution of another seven.  Each of these petitions alleged that the material authors of the violations of the victims’ fundamental rights had been members of the Civil-Defense Patrols [Patrullas de Autodefensa Civil] (hereinafter the “PAC” or “Civil Patrols”) or military commissioners. 

4.            As set forth in the present report and after examining the information supplied by the petitioners, the responses given by the State, the historical context in which the events occurred and the abundant information available as to organization, use, objectives and operations of the Civil Patrols and military commissioners, the Commission declares the present case admissible. 

5.            Likewise, the Commission concludes that the facts that prompted the petitions are true and that Guatemala is responsible for violation of the following rights: (1) the right to life recognized in Article 4 of the American Convention, in the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, José María Ixcaya Pictay, José Vicente García, Mateo Sarat Ixcoy, Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz Chivalan, Catrino Chanchavac Larios, Miguel Tau Imul, Camilo Ajquí Gimon and Juan Tzunux Us; (2) the right to personal liberty recognized in Article 7 of the Convention in the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac y Camilo Ajqui Gimon; (3) the right to humane treatment recognized in Article 5 of the American Convention and Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, in the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui Gimon; and the right to humane treatment upheld in Article 5 of the Convention in the cases of the victims of attempted extrajudicial execution, namely Catalino Chochoy, José Corino, Abelino Baycaj, Antulio Delgado, Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso Galicia Gutiérrez; (4) the rights of the child recognized in Article 19 of the American Convention, in the cases of minors Rafael Sánchez and Andrés Abelino Galicia Gutiérrez; (5) the rights to a fair trial and to judicial protection recognized in Articles 8 and 25 of the American Convention, in the case of all the victims, both those who were executed extrajudicially and those who were the targets of attempted extrajudicial executions; (6) also, the State is considered responsible in all these cases because it failed to comply with its obligation to respect and ensure the rights protected in the American Convention on Human Rights, as stipulated in Article 1(1) thereof. 

6.            The Commission is therefore recommending to the State that:  (1) it conduct a thorough, impartial and effective investigation of each case to ascertain the facts in the extrajudicial executions and attempted extrajudicial executions of the victims and the attendant violations, and to punish those responsible;  (2) it adopt the measures necessary for the families of the victims of the extrajudicial executions to receive prompt and sufficient compensation for the violations herein established; (3) it take the measures necessary so that the victims of the attempted extrajudicial executions receive adequate and prompt compensation for the violations herein established; (4) it effectively prevent a resurgence and reorganization of the Civil Patrols; (5) the principles upheld in the United Nations “Declaration on the right and responsibility of individuals, groups and institutions to promote and protect universally recognized human rights and fundamental freedoms” be promoted and that the necessary measures be taken for ensuring the freedom of expression enjoyed by those who work to secure respect for fundamental rights and for protecting their life and personal integrity.   

II.       FACTS ALLEGED, PROCESSING WITH THE COMMISSION AND THE POSITION OF THE STATE 

A.            Cases involving extrajudicial executions 

1.            Case 10.626: Remigio Domingo Morales and Rafael Sánchez 

a.            Facts alleged 

7.            On June 28, 1990, in the hamlet of Tuisquián, village of Xemal, the municipality of Colotenango, department of Huehuetenango, Remigio Domingo Morales and teenager Rafael Sánchez (15 years) were seized by Civil Patrolmen and accused of being guerrillas. Once in custody, the commander of the military base at Huehuetenango ordered the local PAC to gather everyone from the hamlet to “be present when Civil Patrolmen Nicolás Godínez, Modesto Godínez and Andrés Domingo stoned them on the commander’s orders.” The victims were taken to the Huehuetenango hospital in critical condition.  According to records, the victims died from the serious injuries they sustained at the hands of their captors.  The events were reported to the proper authorities and to the press. 

b.            Proceedings with the Commission 

8.            On August 17, 1990, the Commission opened case 10.626 and forwarded the pertinent parts of the petition to Guatemala, requesting that the government provide pertinent information.  Guatemala supplied information on July 10, 1991 and September 26, 1994.  On November 6, 1995, the petitioners filed their observations to the State’s response, which were then promptly brought to its attention.  Since then, no new information has been forthcoming from either party. 

9.            On August 9, 1998, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement.  The parties did not accept the Commission’s offer.  

c.            The State’s position 

10.            The State reported that in the instant case, “the Second Court of First Instance of the Department of Huehuetenango instituted criminal inquiry number 1261-90. A number of members of the Colotenango Civil Patrol were charged with battery and unlawful arrest….”  The State requested that, in keeping with Article 46 of the American Convention, the case be declared inadmissible on the grounds that the remedies under domestic law had not been exhausted. 

2.            CASE 10.627: Pedro Tau Cac 

a.            Facts alleged 

11.            On July 2, 1990, in the town of Chiop, Santa María Chiquimula, Totonicapán, Pedro Tau Cac, a member of the Runujel Junam Ethnic Communities Council, was attacked while doing farm work. His assailants were men in civilian dress–presumably members of the PAC-who detained him and took him to some unknown destination.  Several days later, his corpse was found in a deserted area and bore signs of torture.  The facts were reported to the proper authorities and to the press. 

b.            Proceedings with the Commission  

12.            The Commission opened case 10.627 on July 17, 1990, and forwarded the pertinent parts of the petition to the State, requesting information from it.  The State replied on July 10, 1991, stating that a criminal case was in progress in the domestic courts to investigate what transpired.  In February 1994, the State supplied additional information.  Since then no new information has been forthcoming from the parties.  

13.            On August 1, 2000, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement.  The parties did not accept the Commission’s offer. 

c.            The State’s position 

14.            The State reported that proceedings had been instituted in criminal inquiry number 574-90 in the Totonicapán Court of First Instance and that the Commission should declare this petition inadmissible because the remedies under domestic law had not been exhausted. 

15.            In 1994 the State reported that Mr. Pedro Tau Cac: 

… was a member of the Runujel Junam Ethnic Communities Council [Consejo de Comunidades Étnicas Runujel Junam] (CERJ) and a member of the Civil Patrols in 1988.

As to the instant case, it was established that Mr. Pedro Tau Cac was indeed apprehended at around 7:00 a.m. on July 2, 1990, in the place known as Chabaj in the Racana Canton in the municipality of Santa María Chiquimula, department of Totonicapan, by a group of approximately ten heavily armed men.  They were wearing masks and dressed in red and green uniforms similar to those worn by soccer players. At the time, Mr. Pedro Tau Cac was working his land in that area.  José Pedro Tau Chivalan and María Tau Chivalan, children of the deceased, and Mr. Domingo Uz Lux, his son-in-law, went to the National Police in that department to file the proper complaint concerning the disappearance of Mr. Tau Cac.

On July 4, 1999, the body of an unidentified male was found in the hamlet of Chicox, Rancho de Teja canton, municipality of San Francisco El Alto, department Totonicapan. The justice of the peace for the district went to the scene and ordered that the body be moved to the morgue of the local hospital.  The deceased’s next-of-kin identified the body as that of Mr. Pedro Tau Cac.  The next-of-kin did not file any complaint with the proper authorities at that time.

The forensic physician found signs of strangulation on the body; the feet and hands had been tied.  Mr. Pedro Tau Cac died of asphyxiation by strangulation, fourth-degree closed thoracic abdominal trauma. Also, a note was found in his left pant pocket stating the following:  “For betraying our organization.” 

3.            CASE 11.198: José María Ixcaya et al 

            16.            In the instant case, a total of 12 extrajudicial executions were alleged, all of which occurred between 1990 and 1991 in different places in Guatemala.  The material authors in all the cases were alleged to be members of the PAC or military commissioners. 

a.            Facts alleged 

José María Ixcaya Pixtay  

17.            José María Ixcaya Pixtay was the victim of extrajudicial execution in Sololá on May 1, 1990.  On the day he was executed, José María Ixcaya left his home at around 5 a.m.  He was headed for Guatemala City, where he was to participate in a May Day demonstration.  As he was leaving his home, several men stepped out of the bushes and shot him, killing him instantly. 

18.            Prior to his death, Mr. Ixcaya Pixtay had been an active member of the Runujel Junam Ethnic Communities Council [Consejo de Comunidades Etnicas “ Runujel Junam“] (CERJ) and had received numerous death threats from Jesús Chopen, chief of the local PAC, and Bernardino Samines, La Fe military commissioner.  Jesús Chopen accused Ixcaya of being a guerrilla because he had resigned from the Civil Patrol and because “people like Ixcaya who get involved in human rights are the guerrilla movement’s chief mouthpiece.” 

19.            Two days after the killing, Marcela Guarcax Morales, Ixcaya’s wife, was told by witnesses that Jesús Chopen, Bernardino Samines, and two members of the PAC, Gaspar Morales and Santos Vicente, were among the killers. 

20.            Marcela Guarcax Morales reported her husband’s murder to the Human Rights Ombudsman on May 9, 1990.  Pedro Ixcaya Cuc, José María’s cousin, also present on the day of the killing, reported it as well.  But because of the complaint they had filed, Marcela Guarcax and Pedro Ixcaya received multiple threats from Civil Patrolmen.[3]

José Vicente García  

21.            José Vicente García, a member of the Runujel Junam Ethnic Communities Council (CERJ), was the victim of an extrajudicial execution in San Pedro Jocopilas, El Quiché, on April 10, 1990.  That day, José Vicente García had left home at 9:30 a.m., accompanied by his wife, Juana Sarat Ixcoy, their son, Pedro Vicente Sarat, and his sister-in-law, Cratina Ixchop Ixcoy.  As they were approaching the San Pedro/La Montaña line, two men appeared and shot Vicente García four times in the head, killing him instantly.  The two men fired several more shots, threatening the family members who were present.  The death certificate lists a skull fracture and cerebral hemorrhage as the cause of death.  

22.            For more than three years, Mr. Vicente García had been receiving death threats from members of the local Civil Patrol (PAC), threats he had repeatedly reported to the Human Rights Ombudsman.  Starting in 1987, Mr. García received a number of threats from Francisco Ixcoy and Santiago Natareno, chief of the local PAC.  They accused him of being a guerrilla for refusing to serve in the PAC.  In 1987, Mr. García had been detained by members of the PACs and taken to the San Pedro Jocopilas military base, where he was held for one day.  There he was accused of being a guerrilla and subsequently tortured.  On May 30, 1989, a group of men belonging to the PAC surrounded the victim’s house and fired into the air as a way to intimidate him.  José Vicente García filed complaints with the office of the Ombudsmen about every incident, but never received any response. 

23.            On April 11, 1990, Juana Sarat Ixcoy, Catarina Ixchop Ixcoy, Pedro Pérez López, and Cristóbal Uz López filed a complaint concerning the execution of José Vicente but received no response. 

Mateo Sarat Ixcoy  

24.            Mateo Sarat Ixcoy was extrajudicially executed sometime around October 30, 1990.  His death certificate states that  “multiple machete wounds to the neck resulted in decapitation.” It appears that no official investigation of the murder was ever conducted. 

25.            Mateo Sarat Ixcoy, of San Pedro Jocopilas, was José Vicente García’s friend; the same PAC members had frequently accused him of being a guerrilla, just as they had accused García.  After the killing of Mr. Vicente García in April 1990, Mateo Sarat Ixcoy went to the PAC office to confront Cristo Tau, chief of the PAC, about his friend’s execution.  

Celestino Julaj Vicente  

26.            Mr. Celestino Julaj Vicente, a member of the Runujel Junam Ethnic Communities Council (CERJ), was the victim of an extrajudicial execution on June 28, 1991.  On the date of the extrajudicial execution, Julaj Vicente, his wife, María Lolmet Xam, and their daughter, had been away from home all day. When the family returned home in the evening, Celestino was attacked by an unknown assailant, who threw him to the floor and shot him. 

27.            Mr. Julaj Vicente had retired from the PAC on September 3, 1988.  Because of that, however, shortly thereafter he began receiving death threats from Pedro López Ajiataz, chief of the local PAC. 

Miguel Calel  

28.            In San Pedro Jocopilas, El Quiché, Mr. Miguel Calel was extrajudicially executed by members of the PAC on April 19, 1991. Before his death, Mr. Calel had received death threats from members of the PAC because he did not want to participate in these groups. 

Pedro Raguez 

29.            Pedro Raguez, of San Pedro Jocopilas, El Quiché, dropped out of the Civil Patrols and moved to Guatemala City to avoid their harassment.  He was killed by PAC chiefs on April 10, 1992, when he returned to his town to visit his family. The complaint concerning his execution was filed by Amilcar Méndez, but elicited no reaction.  No official investigation has ever been conducted into this case.  No one has been indicted or tried for the murder. 

Pablo Ajiataz Chivalán and Manuel Ajiataz Chivalán  

30.            On March 15, 1991, in Santabal I, in San Pedro de Jocopilas, El Quiché, the brothers Pablo Ajiataz Chivalán and Manuel Ajiataz Chivalán were the victims of extrajudicial execution.  Prior to their deaths, the two men had been harassed and had received repeated death threats from the chief of the local PAC, who accused them of being guerrillas because of their refusal to serve in the PAC. 

Catrino Chanchavac Larios  

31.            Mr. Catrino Chachavac Larios was decapitated in the hamlet of San Pablo, San Pedro Jocopilas, El Quiché, on August 26, 1992.  Before his death, he had received death threats from the patrol chief for the neighboring town, Santabal II, because of his refusal to serve in the PAC.    

Miguel Tiu Imul  

32.            On November 30, 1991, Mr. Miguel Tiu Imul was the victim of an extrajudicial execution, just 30 meters from his home in Canton de las Montañas, Parraxtuut, Sacapulas. In July 1991, Miguel Tiu Imul had stopped serving in the patrol because he was 65 and was no longer physically fit for service. 

33.            Imul’s family accused military commissioners and patrol chiefs Domingo Castro Lux, Pedro Ixcotoyac, Juan Lux Castro and Juan de León Peres of having committed the murder since they had sent him death threats in the past. 

34.            The PAC chiefs had harassed Mr. Tiu for years.  In July 1987 they and the military commissioners seized him and took him to the Chiul military base where soldiers and officers tortured and interrogated  him for three days.  Two days later, 50 soldiers arrived at his home and beat him savagely. 

Camilo Ajqui Gimon  

35.            Camilo Ajqui Gimon, a member of the CERJ, was executed extrajudicially in Zacualpa, on April 14, 1991.  Three unknown men took him from his home that day and killed him shortly thereafter.  Mr. Ajqui had once been a member of the PAC and since leaving had received multiple death threats from PAC members because he had stopped serving in the PAC and was a member of the CERJ. 

Juan Tzunux Us 

36.            In Zacualpa on November 27, 1990, Mr. Juan Tzunux Us was extrajudicially executed by members of the local Civil Patrol.  Mr. Tzunum Us had fled to the United States in the early 1980s because he had been accused of being a guerrilla and was in fear for his life and his personal safety. He was extrajudicially executed the very day he returned to Zacualpa from the United States.  

b.            Proceedings with the Commission             

37.            The Commission opened case 11.198 on December 9, 1993.  The petition alleged violations of the human rights of 77 people.  The Commission forwarded the pertinent parts of the petition to the State and requested relevant information from it.  On December 19, 1994, the State supplied general information on the case, which was promptly forwarded to the petitioners.  Guatemala also pointed out that a case had already been instituted with the Commission in the case of some of the persons named in this case. In April 1995, the petitioners made general observations on the State’s response.  On June 14, 1995, the State reiterated its earlier response.  Since then, no new information has been forthcoming from the parties.   

            38.            On October 6, 1995, the Commission informed the parties that it had decided to combine case 11.198 with cases that it was already hearing whose facts were the same as the facts alleged in this case.  The cases in question were: case 10.857 (Manuel Ajtataj Chivalán and Pablo Ajtataj Chivalan), case 10.874 (Miguel Calel) and case 10.909 (civilian population of Canjabal). 

39.            On December 9, 1998, the Commission requested additional information from the parties and placed itself at their disposal with a view to reaching a friendly settlement. The parties did not supply information and did not accept the Commission’s offer. 

40.            On December 8, 2000, the Commission, pursuant to Article 40 of its Regulations, decided to divide case 11.198 in two: case 11.198(A) for petitions alleging extrajudicial executions, and case 11.198(B) for those alleging violations of a different nature.   

c.            The State’s position 

41.            On December 9, 1994, the State provided general information on the case and made allusion to the origins and nature of the Civil Patrols and the role they played within Guatemala’s armed internal conflict. Guatemala asserted that: 

The Government of Guatemala is petitioning the Inter-American Commission on Human Rights to refuse to admit this case for the reasons explained herein and because it does not meet the standard of exhaustion of domestic remedies. The obligation to report the commission of a crime, stipulated in both Article 331 of the repealed Code of Criminal Procedure[4] and Article 297 of the current Code of Criminal Procedure, was not fulfilled, which is why the proceedings required under Guatemalan law were never instituted.

The petitioners filed a complaint concerning the alleged human rights violations with the Human Rights Ombudsman.  However, they never exhausted the remedies under domestic law.  “The Human Rights Ombudsman is appointed by the Congress to defend the human rights that the Constitution guarantees”[5] and “he has legal personality, is not subordinate to any organ, institution or official in this matter, and will act with absolute independence, except where the present law stipulates otherwise.”[6]  In other words, while the Office of the Human Rights Ombudsman is an independent institution, it has no adjudicatory function since under the Constitution, that function is the exclusive and absolute purview of the Supreme Court of Justice and other courts that the law establishes.  

B.            Cases of attempted extrajudicial execution 

1.            CASE 10.799: Catalino Chochoy, José Corino Teshen and Abelino Baycaj 

a.            Facts alleged 

42.            On January 31, 1991, one military commissioner and armed men in civilian dress and driving vehicles with tinted glass, shot and seriously wounded farm workers Catalino Chochoy, José Corino Teshen and Abelino Baycaj, in the municipality of Santo Domingo Xenacoj, department of Sacatepéquez, in an attempt to press them into military service.  Relatives and friends immediately took the wounded to the hospital in Antigua Guatemala.  According to the petition, these facts were brought to the attention of the proper judicial authorities and the local press. 

b.            Processing with the Commission 

43.            The Commission opened case 10.799 on February 27, 1991, and forwarded the pertinent parts of the petition to the State, with the request that it supply relevant information. The State supplied the requested information on September 9, 1991, which was promptly brought to the petitioners’ attention. On January 8, 1993, the petitioners submitted their observations on the State’s response.  The State supplied additional information on March 22, 1993 and March 29, 1994.  

44.            On August 3, 2000, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement.  The parties did not accept the Commission’s offer.  

c.            The State’s position 

45.            In its first communication (September 9, 1991), the State petitioned the Commission to declare the case inadmissible.  It argued that the remedies of domestic law had not been exhausted inasmuch as the facts alleged in the petition were the subject of criminal inquiry number 184-91, currently before the Sacatepéquez Criminal Court of First Instance. 

46.            In its second communication (March 29, 1994), the State reported the following: “The crime being prosecuted was determined to be severe battery.  The person charged with the crime was Juan Francisco Farelo Ortíz.  The Office of the State’s Attorney was present at the proceedings because it had learned of the summary inquiry … Mrs. Catalino Chocoy and Mr. Abelino Bayjac Chile, the aggrieved parties in the forced recruitment, stated that they were shot by military commissioners, a fact corroborated in a statement that eyewitnesses to the attack gave to the mayor of the town in which the incident occurred.  Although on February 18, 1993, the judge hearing the case ordered the suspect taken into temporary custody, thus far the State has been unable to apprehend the person in question.  At the present time, the proceedings are in the investigative stage; prosecution of the case will continue once the suspect is brought before the court by the competent authority.” 

2.            CASE 10.751: Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso Galicia Gutiérrez 

a.                  Facts alleged 

47.            On November 25, 1990, in the hamlet of El Chiltepe, town of Buenos Aires, department of Jutiapa, Mr. Juan Galicia Hernández and his sons Andrés Abelino Galicia Gutiérrez (22) and Orlando Galicia Gutiérrez (15) were shot and seriously wounded as they were working in the fields.  Their assailants were PAC members in civilian dress, who proceeded to ransack the Galicia Gutiérrez family home.  Family and friends immediately took the wounded to the regional hospital at Cuilapa, Santa Rosa. The facts were reported to the proper authorities and the press.    

b.            Proceedings with the Commission 

48.            The Commission opened case 10.751 on December 12, 1990, and forwarded the pertinent parts of the petition to the State, with the request that it supply pertinent information.  The State’s response of August 28, 1991, was promptly forwarded to the petitioners.  On August 11, 1993, the petitioners sent their observations to the State’s response.   Additional information was requested from the State on August 20, 1993, September 25, 1995, and April 3, 1996, but it never responded.  

49.            On August 3, 2000, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement.  The parties did not accept the Commission’s offer.  

c.            The State’s position 

50.            In its first and only communication (August 28, 1991), the State petitioned the Commission to declare the case inadmissible on the grounds that the remedies under domestic law had not been exhausted.  It stated that the facts reported in the petition were being investigated by the Second Court of First Instance of the department of Jutiapa, as case 2715/90.  The inquiry was instituted pursuant to a complaint filed on December 11, 1990, in which Mr. Raquel Hernández García was directly accused of being the guilty party.  After this initial brief response, no further information from the State was forthcoming.  

3.            CASE 10.901: Antulio Delgado 

a.            Facts denounced 

51.            Military commissioners shot and seriously wounded Mr. Antulio Delgado at his home in San Rafael Pie de la Cuesta, San Marcos, May 29, 1991.  Family members took Mr. Delgado to the San Marcos hospital immediately. The day before the attempt on his life, the court had ordered the victim’s release when he was arrested and jailed by the very same military commissioners who then attempted his extrajudicial execution.  A complaint was filed with the proper authorities and the events were reported to the press. 

b.            Proceedings with the Commission  

52.            The Commission opened case 10.901 on June 18, 1991.  It forwarded the pertinent parts of the petition to the State and asked that the latter supply relevant information. The Commission repeated its request on March 5, 1992 and December 9, 1998.  The State has never supplied the requested information.  

53.            On December 9, 1998, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement, but the offer was not accepted. 

c.            The State’s position 

54.            Guatemala never supplied information on this case.

III.            ADMISSIBILITY

A.            Competence 

55.            The Commission has prima facie competence to take up the petitions in question.  At the time the facts recounted in the petitions were alleged to have occurred, the obligation to respect and ensure the rights recognized in the American Convention was already incumbent upon the State.[7] 

B.            Admissibility requirements 

1.         Exhaustion of the remedies under domestic law and time periods for filing petitions 

56.            Article 46 of the American Convention stipulates that for a case to be admitted, “the remedies under domestic law [must] have been pursued and exhausted in accordance with generally recognized principles of international law.” It further stipulates a number of exceptions to the rule when domestic remedies are not available either as a matter of law or as a matter of fact.[8] 

57.            To mount a valid challenge to the admissibility of a petition, the State in question must promptly and expressly invoke the standard of exhaustion of remedies under domestic law.  Under principles of international law and international practice, the standard of prior exhaustion “is a prerequisite established in favor of the State, which may waive its right, even tacitly, and this occurs, inter alia, when it is not timely invoked.”[9] 

58.            In the various combined cases covered in this report, the State’s contention is that the Commission should declare them inadmissible either because the allegations made are already before the domestic courts or because no complaint was ever filed with the proper local authorities, from which it infers that in none of the hypothetical situations posited were the remedies under domestic law exhausted as required under Article 46 of the American Convention. 

59.            For their part, when they filed their petition with the Commission the petitioners argued that the exceptions allowed to the rule requiring exhaustion of domestic remedies applied since in “Guatemala, it is extremely difficult, if not impossible, to obtain legal redress in cases that concern human rights violations, like the ones presented here.  The judiciary has shown no political inclination to prosecute those who commit such abuses.”  The petitioners further note that in those cases that were reported to the judicial authorities, remedies have been ineffective. 

60.            Because the parties differ as to the need to exhaust the remedies under domestic law and the pertinence of those remedies, the analysis of exhaustion of domestic remedies must focus on whether the facts alleged are covered by any of the exceptions allowed under Article 46(2) of the American Convention to the rule requiring exhaustion of local remedies.  

61.            Article 46(2) of the Convention provides that the exception will apply if the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated; if the party alleging violation of his rights has been denied access to the remedies under domestic law; or if there has been unwarranted delay in rendering a final judgment under the aforementioned remedies. 

62.            As noted earlier, the State’s position is that some of the cases should be declared inadmissible because they are still before the domestic courts for adjudication. 

63.            The information in the Commission’s possession indicates that in some of the cases covered in this report, petitions filed with the Guatemalan courts languished there for nine to ten years before a formal criminal inquiry was instituted.  Nor is there any record of a final judgment being handed down establishing the facts, determining blame and giving the affected parties redress.  The amount of time that has passed since these criminal proceedings were instituted necessarily raises the question of the unwarranted delay referred to in Article 46(2)(c).  While every criminal investigation poses requirements unique to it, “[t]he rule of prior exhaustion must never lead to a halt or delay that would render international action in support of the [alleged] defenseless victim ineffective…”[10].  As a general rule, a criminal investigation must be conducted swiftly, not just to protect the victim’s interests but also to safeguard the rights of any person who might become a suspect during the course of the investigation.  The Commission considers that the time elapsed since proceedings were instituted in the cases filed with the courts qualifies them for the unwarranted delay exception allowed under Article 46. 

64.            Another factor that has to be considered is whether, at the time the events in question occurred, judicial remedies were available in Guatemala that were effective in addressing complaints of human rights violations, especially violations of the right to life.  Yet another factor is how, on the whole, the Guatemalan judiciary at that time responded to cases of human rights violations.