...continued 

116.            In the case of Pedro Tau Cac, the modus operandi was to abduct the victim first and then take him to a place unknown.  Days later, the body was found in a public place.  In the case of Remigio Morales and Rafael Sánchez, the victims’ bodies showed obvious signs of having been tortured before being executed.

117.            The modius operandi in the cases alleging attempted extrajudicial execution are those characteristic of extrajudicial executions in the 1990-1991 period.  Catalino Chochoy, José Corino and Abelino Baycaj were gravely injured when an attempt was made to impress them into military service.  In the case of Antulio Delgado, the accused perpetrators are military commissioners.  Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso Galicia Gutiérrez were doing farm work when members of the PAC appeared dressed in civilian clothes. 

118.            According to the records in the Commission’s possession, in not one case were the events properly investigated, the culprit(s) punished or the victims compensated.  This, too, is consistent with the chronic inability of the juridical branch of government to respond with proper investigation, prosecution and punishment of the human rights violations during the period in question.  

119.            As the Inter-American Court has held, “it is not necessary to determine the perpetrators’ culpability or intentionality in order to establish that the rights enshrined in the Convention have been violated, nor is it essential to identify individually the agents to whom the acts of violation are attributed.  The sole requirement is to demonstrate that the State authorities supported or tolerated infringement of the rights recognized in the Convention.  Moreover, the State’s international responsibility is also at issue when it does not take the necessary steps under its domestic law to identify and, where appropriate, punish the authors of such violations.”[102]   

120.            In cases 10.626, 10.627 and 11.198, the fifteen people who were extrajudicially executed fit the pattern of summary executions used in Guatemala in 1990 and 1991.  These executions were the work of Civil Patrolmen or military commissioners who, as analyzed in previous paragraphs, were agents of the State.  Cases 10.799, 10.751 and 10.901, involving attempted extrajudicial executions that resulted in serious injuries, also fit the pattern and were also carried out by members of the Civil Patrols or military commissioners, in other words, agents of the State.  This practice was inflamed by the atmosphere of impunity at the time, a consequence of the judiciary’s unwillingness to conduct effective and serious inquiries into the human rights violations reported to it.  On the basis of direct and circumstantial evidence, therefore, the Commission concludes that the State is responsible for the acts denounced in all these cases and will proceed to detail the nature and specific consequences of that responsibility. 

C.            Considerations of law 

The right to life 

121.            Article 4(1) of the American Convention on Human Rights declares that “Every person has the right to have his life respected.  This right shall be protected by law and, in general, from the moment of conception.  No one shall be arbitrarily deprived of his life.”  International human rights law, both conventional and customary, and the 1985 Guatemalan Constitution guarantee the right to life.[103] 

122.            The right to life is of paramount importance because it is the essential premise for the other rights.  The right to life is fundamental within the Convention’s system of guarantees; therefore, its provisions must be strictly interpreted.  Protection of this right has two dimensions: on the one hand, it presupposes that no one may be arbitrarily deprived of life; on the other hand, it requires that States take the measures necessary to guarantee life. 

123.            The State’s duty must be to guarantee the inviolability of the life of all persons subject to its jurisdiction and the right not to be arbitrarily deprived of life.  This implies reasonable prevention of situations that could lead to the suppression of that right.  Due diligence makes reasonable prevention the duty of States in those situations that could, even by omission, lead to the suppression of this right.  

124.            The duties that the right to life creates for the State are both preventive and corrective in nature.  In cases of extrajudicial executions, Guatemala did not provide either.  The cases of extrajudicial execution covered in this report show that the State did not protect these victims against the arbitrary executions committed by its agents or by those acting in the State’s name or with its acquiescence.  The pattern of extrajudicial executions at that time, which posed a grave threat to the right to life, was allowed in these cases and in some sense incited by the unwillingness or inability of the authorities to react to the situation.  

125.            The system of legal guarantees that the State should have put in motion to control the conduct of the State agents implicated was neither adequate nor effective; it was illusory.  The State did not react as it should have to investigate those violations.  International and inter-American human rights law has established that any violation of the right to life requires that the State undertake a judicial investigation by the criminal court designated to prosecute, try and punish those found responsible for those violations.[104]  In some cases where the State failed to properly investigate the complaints of arbitrary killings, it was found to have incurred international responsibility for violation of the right to life, even though the circumstances surrounding the killings were not fully clarified.[105]  As this analysis will show, the information supplied by the State in connection with the cases under study does not indicate that effective investigations were ever undertaken to ascertain the facts or identify those responsible for the killings.  

126.            In the case of persons deprived of their freedom prior to their execution, “a death in any type of custody should be regarded as prima facie a summary or arbitrary execution and appropriate investigations should immediately be made to confirm or rebut the presumption.”[106]  

127.            It is the Commission’s view that in cases 10,626, 10,627 and 11,198, which involve a total of fifteen people, all were executed extrajudicially, some immediately and others within hours or days of being seized.  The perpetrators were members of the Civil Patrols, military commissioners or private persons acting with either the State’s tolerance or consent.  The killings were part of a pattern of extrajudicial executions previously identified by this Commission.  The State failed to take the measures needed to end the practice of summary executions used at that time and did not respond to these specific executions with the necessary due diligence.  Hence, the Commission concludes that under Article 4 of the American Convention, the State of Guatemala is responsible for violation of the right to life of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, José María Ixcaya Pixtay, José Vicente García, Mateo Sarat Ixcoy, Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz Chivalan, Catrino Chanchavac Larios, Miguel Tiu Imul, Camilo Ajquí Gimon and Juan Tzunux Us. 

The right to personal liberty 

128.            Any lawful deprivation of freedom must be ordered and carried out by the proper authority and must be done in accordance with the substantive and procedural requirements of domestic law and the American Convention.  Article 7(2) of the American Convention provides that “No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.” Article 7(3) states that “No one shall be subject to arbitrary arrest or imprisonment.”   

129.            The allegations in the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui Gimon are that the victims were unlawfully apprehended.  These victims were alleged to have been held in custody for periods ranging from one hour to several days.  There is no record or information to suggest that any of the victims was taken into custody by order of a competent authority or in accordance with the law.  Quite the opposite, the events described follow the modus operandi typical of many summary executions in that period. 

130.            The abduction of a person is an arbitrary deprivation of liberty, an infringement of a detainee’s right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest....[107]  The right to petition the court to determine the lawfulness of an arrest is a fundamental guarantee of the detainee’s constitutional and human rights when deprived of his freedom by State agents. “[H]abeas corpus performs a vital role in ensuring that a person’s life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment.”[108]  Although exactly how long each victim was held in custody before being executed has never been determined, the nature of these detentions was such that the victims were effectively denied access to even the most essential safeguard of judicial protection. 

131.            The Commission therefore concludes that the State violated Article 7 of the American Convention and is responsible for the acts of its agents or of persons acting in its name or with its acquiescence, by unlawfully depriving Remigio Domingo Morales, Rafael Sánchez, Pedro Tiu Tac and Camilo Ajqui Gimon of their freedom and denying them access to judicial protection. 

The right to humane treatment 

132.            Article 5(1) and (2) of the American Convention on Human Rights state that “[e]very person has the right to have his physical, mental, and moral integrity respected” and  that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment…” 

133.            In the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, and Camilo Ajqui Gimon, the victims were secretly abducted and thus denied access to any form of help or protection for the time they were held, which ranged from one hour to several days.  By itself, deprivation of freedom under such conditions produces anxiety and suffering.  In these cases, there are signs that the victims had been beaten before being executed.  In case 10.626 (Remigio Domingo Morales and Rafael Sánchez), “they were stoned.” The State never challenged the petitioners’ descriptions of the marks on the bodies or the allegations of torture. 

134.            From the way in which these victims were tortured and the marks on their bodies, the intention was not to conceal these facts but rather to send a message to those who found the bodies, to family and to anyone else who saw the bodies.  As was noted in the section on the characteristics of the executions during the period in question, the objective of the torture was not just to make the victims suffer but also to destroy their human dignity in the eyes of family and community and to arouse fear in anyone who knew about it.[109] 

135.            As in the case of the right to life, effective observance of the prohibition of the use of torture requires effective investigation of any complaint of inhumane treatment.  At the time the events occurred, Guatemala was bound by the Inter-American Convention to Prevent and Punish Torture.  It had deposited its instrument of ratification on January 29, 1987; the Convention entered into force for all parties on February 28, 1987.  Under Articles 1 and 6, Guatemala undertook to prevent and punish any torture that might occur within its jurisdiction.  Further, Article 8 provides that: 

The States parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.

Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process. 

136.            The circumstances of these cases and general descriptions of the marks on the victims’ bodies are consistent with the treatment that victims during the period received, i.e., they were detained first and then extrajudicially executed.  The State did not dispute the fact that the victims had been tortured, and did not present any information of proof to show that the complaints were investigated, as required under the American Convention and the Inter-American Convention to Prevent and Punish Torture.  Consequently, while the precise nature of the torture and the identity of those responsible in these four cases have not been determined at the domestic level, the Commission finds sufficient evidence to conclude that the State is responsible for the acts of its agents or persons who were acting with the State’s tolerance or acquiescence when they violated the rights of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac and Camilo Ajqui Gimon to humane treatment and to be free from torture, in accordance with Article 5 of the American Convention and Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture. 

137.            As indicated previously, the modus operandi of the attempted extrajudicial executions was the same as that used in extrajudicial executions during the 1990-1991 period.  The victims of the attempted extrajudicial executions were gravely injured; had it not been for the prompt assistance they received from family members or friends who took them to the hospital, they would have died and their case would have been classified as an extrajudicial execution.  Therefore, the State is responsible for violation of the right that Catalino Chochoy, José Corino, Abelino Baycaj, Antulio Delgado, Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso Galicia Gutiérrez have to humane treatment, by virtue of acts committed by State agents or private citizens acting with the State’s tolerance or consent, acts that fit the pattern of extrajudicial executions already identified by the Commission.   

Rights of the child 

138.            Article 19 of the American Convention on Human Rights provides that “Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.”  Of the victims named in this report, two are minors: Rafael Sánchez (15, the victim of an extrajudicial execution) and Orlando Galicia Gutiérrez (15, the victim of an attempted extrajudicial execution). 

139.            Respect for children’s human rights must be a paramount concern for every State.  Accordingly, Article 19 establishes special protection for children, by virtue of their vulnerability as minors.[110]  In the instant case, the State failed to honor the guarantees established in Article 19 of the American Convention, to the detriment of Rafael Sánchez and Orlando Galicia Gutiérrez . 

The right to judicial protection and judicial guarantees 

140.            Article 25(1) of the American Convention provides that “[e]veryone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention…”  It includes the principle of the effectiveness of the procedural instruments or means.  It is not sufficient that the State’s legal system formally recognizes the remedy in question; instead, the State has to develop the possibilities of an effective remedy that must be substantiated in accordance with the rules of due process of law.   

141.            Article 8(1) reads as follows:  

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. …. 

142.            As the Court has explained, Articles 25, 8 and 1(1) are mutually reinforcing:  

… Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to simple and prompt recourse, so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered. … Article 25 is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society ….  That Article is closely linked to Article 8(1), which provides that every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, for the determination of his rights, whatever their nature.[111]  

143.            The State’s obligations must be fulfilled, not through formal measures but through substantive measures. Thus, the remedies the State offers “must be truly effective in establishing whether there has been a violation of human rights and in providing redress.”[112] 

144.            While the guarantees protected under Articles 8 and 25 are different, generalized basic flaws in the administration of justice thwarted their application during the period under study.  As noted earlier, the administration of justice at the time was so defective that it was virtually inoperable.[113] In most cases, the investigating or judicial police never identified the perpetrators; those who were identified were rarely brought to trial.  The few cases in which a lower court guilty verdict was obtained were quashed on appeal.[114] “[I]n cases having a political background, almost no conviction by the trial judge in first instance is upheld on appeal and becomes final.  Clearly, with such results, the population has little faith in the proper administration of justice.”[115] Complainants and witnesses in human rights cases were frightened out of participating in court proceedings by threats or intimidation or by the fate that had befallen those who did become involved in human rights cases.  Judges refused to investigate human rights violations for fear that what had happened to judges who had investigated previous human rights cases would happen to them.[116]  The State’s unwillingness or inability to respond to the serious violations was also evident and exacerbated by the deep-seated structural flaws in the administration of justice.[117] 

145.            The general finding of the Commission for Historical Clarification that: 

The failure of the administration of justice in protecting human rights during the internal armed conflict has been clearly and fully established, based on the thousands of violations … that were never investigated, prosecuted or punished by the State. …  In general, the judicial branch of government refrained from acting on basic procedural appeals to curb the administration in the face of the serious violations of personal liberty and security….  On numerous occasions, the courts were directly answerable to the executive branch….  All this left the public completely defenseless against the abuses of power and caused it to regard the judiciary as a tool for the defense and protection of the powerful.  The court has limited or denied protection of fundamental rights, especially those of the victims of egregious human rights violations.[118] 

146.            Persons seeking protection from the courts against human rights violations under the conditions prevailing at that time did not have the simple, prompt and effective recourse that the American Convention requires.  While remedies were there in theory, in practice they were illusory inasmuch as they did not produce the results for which they were theoretically conceived. 

147.            Under the American Convention, when a protected right or freedom has been violated, “[t]he State has a legal duty … to use the means at its disposal to carry out a serious investigation … to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation.”[119]  At the same time, the victim or his next-of-kin has the right to seek judicial protection and reparations.  The victim and/or his next-of-kin have the right to a judicial investigation by a criminal court to determine who is responsible for the violations and to impose punishment.[120]  The investigation “must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the …  family … without an effective search for the truth by the government.”[121]   

148.            As the Commission has noted in previous cases, the Principles of the Effective Prevention and Investigation of Extra-legal, Arbitrary or Summary Executions, adopted by the United Nations Economic and Social Council in resolution 189/65, explain what is required in cases of suspicious deaths.[122]  In such cases, the investigation must establish the cause, manner and time of death, the person responsible, and the procedure or practice that could have provoked it.  Also, a proper autopsy must be conducted, all material and documentary evidence must be compiled and analyzed, and statements taken from witnesses.  The investigation must distinguish between death by natural causes, accidental death, suicide and homicide.   

149.            In the specific cases under study, while the State reported that court proceedings were pending, it did not for all practical purposes report any specific investigative measure, much less results.  The State virtually did not present any documentary evidence of the proceedings it claimed.  In one case, it indicated that the prosecutors and judges had requested certain measures, but did not indicate whether those measures had been implemented and, if so, to what effect.  In the great majority of these cases, the information that the Commission has in its possession indicates simply that judicial proceedings were instituted and are still in the investigative stage. 

150.            According to the information in the Commission’s possession, none of the court proceedings resulted in a final decision that clarified the complaints brought and convicted and sentenced someone for the deaths of the 15 victims of extrajudicial execution and the seven victims of attempted extrajudicial execution. The Commission has stated that the obligation to investigate is not breached merely because no one was convicted in a case or because, despite the efforts made, the facts could not be established.  However, in order to establish in a convincing and credible manner that this outcome was not the product of a mechanical implementation of certain procedural formalities, the State must show that it carried out an immediate, exhaustive, serious and impartial investigation.[123]  In the present cases, the State has not met this burden of proof. 

151.            The victims’ families had and have a right to know what happened to their loved ones.[124]  As the victims’ heirs, they also had and have a right to use that information to exercise their right to compensation from the State.  “The rights of victims or their families to receive adequate compensation is both a recognition of the State’s responsibility for the acts committed by its personnel and an expression of respect for the human being.”[125] 

152.            For the reasons explained at length earlier in this report concerning the judiciary’s unwillingness and inability to take action on human rights violations during the period in question, the Commission concludes that in the specific cases under study, the judicial proceedings instituted were not conducted by independent and impartial courts.[126]  Moreover, nine or ten years have passed since proceedings were first instituted, but no real conclusion has been reached.  The Commission therefore considers that the reasonable time of which the Convention speaks has long since passed.  Consequently, because there was no effective investigation in these cases, and given other flaws in the Guatemalan administration of justice, the Commission concludes that the next-of-kin did not enjoy the necessary guarantees of due process in the determination of their rights. 

153.            Impunity is the result of “the failure to investigate, prosecute, take into custody, try and convict those responsible for violations.”[127]  By virtue of the interrelated guarantees upheld in Articles 25, 8 and 1(1) of the American Convention, the State has the duty “to use all the legal means at its disposal to combat [impunity], since [it] fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.”[128]  As the United Nations Special Rapporteur on executions has emphasized, “Impunity continues to be the principal cause of the perpetuation and encouragement of violations of human rights, and particularly extrajudicial, summary or arbitrary executions.”[129] In the instant cases, it is clear from the information received that the State did not use the means at its disposal to conduct an effective investigation that could be the basis for prosecuting and punishing those responsible.  The State, therefore, is responsible for having allowed these violations to go unpunished and has thus violated Articles 8 and 25 of the American Convention. 

The State’s obligation to respect and guarantee individual rights 

154.            The analysis of the cases covered in this report shows that by its violations of the human rights upheld in Articles 4, 5, 7, 8, 19 and 25 of the Convention and in Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, Guatemala has failed to discharge its obligation under Article 1(1) of the American Convention to “respect the rights and freedoms recognized [t]herein and to ensure to all persons subject to [its] jurisdiction the free and full exercise of those rights and freedoms.”  

155.            Thus, the first obligation of the States, flowing from Article 1(1) of the Convention, is to respect the rights and freedoms of all persons subject to its jurisdiction.  The Court has held the following where this obligation is concerned: “under international law a State is responsible for the acts of its agents … and for their omissions, even when those agents act outside the sphere of their authority or violate internal law.”[130]  Furthermore, “in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State.”  An illegal act which “violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.”[131] 

156.            Following this reasoning, the Commission concludes that the extrajudicial executions of the victims whose cases are covered in this report were committed by agents of the State or by private citizens acting with the State’s acquiescence or tolerance, as part of a State practice of extrajudicial executions. In four of the cases under study, the bodies of the victims showed signs of having been tortured by their captors.  The acts or omissions of those agents and those of the police and judicial personnel who prevented the families from exercising their right to know the truth of what had happened and to seek a judicial remedy, are attributable to the State. 

157.            The second obligation stipulated in Article 1(1) is to ensure the free and full exercise of the rights and freedoms recognized in the Convention.  States parties have an obligation to organize the “governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.  As a consequence of this obligation, the States must prevent, investigate and punish any violations of the rights recognized by the Convention.”[132] 

158.            Faced with an allegation of extrajudicial execution or attempted extrajudicial execution, the State has an obligation to investigate the facts and identify and punish those responsible.  In the cases covered in this report, those basic obligations were not honored; worse still, the State used its structure to carry out a practice of extrajudicial executions during the period in question.  The Commission therefore concludes that the State has violated Article 1(1) of the Convention because it did not ensure the exercise of the rights and guarantees of the victims named in all the cases included in this report. 

VI.            DEVELOPMENTS FOLLOWING THE ARTICLE 50 REPORT 

159.            On December 8, 2000, under the terms of Article 50 of the American Convention, the Commission adopted Report 117/00 in connection with this case. The report was transmitted to the Guatemalan State on December 22, 2000, along with a request for it to provide information, within the following two months, about the steps taken to comply with the Commission’s recommendations. 

160.            On March 2, 2001, after the period granted by the Commission had expired, the State of Guatemala provided information about the situations of only four victims (José María Ixcaya Pixtay, Remigio Domingo Morales, Rafael Sánchez, Catarino Chochoy, and Abelino Bayjac) from the 22 covered by this report. The information submitted by the Guatemalan State is generic in nature, fails to contribute anything new, and does not describe steps taken to compensate the victims. For example, it states that: 

Respectfully and as agreed by the Commission for Strengthening Justice, we once again transmit to you the information available to COPREDEH about certain cases in which we understand that proceedings have halted for different reasons and at different points within the justice system. 

JOSÉ MARÍA IXCAYA PIXTAY

On May 1, 1990, in Pojopil canton, Sololá municipality, Mr. José María Ixcaya Pixtay, a member of the Runujel Junam Ethnic Communities council (CERJ), was murdered. The incident took place as Mr. Ixcaya was on his way to Guatemala City to participate in a Labor Day parade.

The case was heard by the First-Instance Criminal Instructional Court of Sololá; the proceedings, with the first magistrate presiding, were classified as Nos. 402 and 628-90, in which Jesús Chopén and Bernardino Samines were accused of the crimes of murder and threatening behavior against . . . José María Ixcaya Pixtay (deceased).

The trial documents contain a statement made by Mrs. Marcela Guarcas Morales, the widow of the deceased, who, in giving that statement, made no formal accusations against any specific person.

On September 21, 1990, Mr. Jesús Chopén was brought before the presiding judge, investigated, and charged with murdering José María Ixcaya Pixtay and making threats against Pedro Ixcaya Cuc.

On September 19, 1990, he was arrested for murder at the orders of the First-Instance Criminal Instructional Court.

On October 4, the investigating judge revoked the prison order against Mr. Jesús Chopén and ordered his release on his own recognizance because there was insufficient evidence to indicate his guilt; as a precautionary measure, the judge placed him under a judicial confinement order.

The competent authorities’ efforts to locate the other accused, Bernardino Samines, and take a statement from him in order to clear up his legal situation have, to date, been fruitless. 

REMIGIO DOMINGO MORALES

To date the accused have not been tried because the victims’ relatives failed to make formal accusations against them; consequently, the public prosecution service did not continue with its investigation of the case because of insufficient evidence. 

            161.            After considering the information submitted by the Guatemalan State, the Commission holds that in addition to saying nothing about the vast majority of this case’s victims, it also confirms the conclusion reached in this report: namely, that the State of Guatemala has not conducted an effective investigation to cast light on the incidents that affected the victims and to judge and punish the guilty.

162.             The Commission concludes that the State of Guatemala has not complied with the recommendations set forth in Report 117/00 of December 22, 2000; and the recommendations set forth in its report 26/01 of March 6, 2001; it thus reaffirms its conclusions and reiterates its recommendations.  

VII.            CONCLUSIONS 

163.            Based on the above analysis, the Commission confirms its conclusion that the facts prompting the petitions are true and that the State is responsible for violating 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 Pixtay, José Vicente García, Mateo Sarat Ixcoy, Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz Chivalan, Catrino Chanchavac Larios, Miguel Tiu Imul, Camilo Ajquí Gimon and Juan Tzunux Us; (2) the right to personal liberty recognized in Article 7 of the American Convention, in the cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac and 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, victims of extrajudicial execution, and the right to respect for one’s physical integrity recognized in Article 5 of the American Convention, in the cases of Catalino Chochoy, José Corino, Abelino Baycaj , Antulio Delgado, Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso Galicia Gutiérrez, victims of attempted extrajudicial executions; (4) the rights of the child recognized in Article 19 of the American Convention, in the cases of minors Rafael Sánchez and Andrés Abelicio Galicia Gutiérrez; (5) the right to judicial guarantees and judicial protection recognized in Articles 8 and 25 of the American Convention in the case of all the victims of extrajudicial and attempted extrajudicial execution; (6) in all these cases the State is also responsible for failing to honor its obligation under Article 1(1) of the American Convention, which is to respect and ensure the rights and freedoms protected therein.  

VIII.            RECOMMENDATIONS 

164.            Based on the analysis and conclusions set forth in this report, the Inter-American Commission on Human Rights repeats its recommendations that the State of Guatemala should: 

1.            That it conduct a thorough, impartial and effective investigation to determine the circumstances of the extrajudicial executions and attempted extrajudicial executions of each victim and the attendant violations, and punish those responsible.   

2.            That it take the necessary measures so that the next of kin of the victims of the extrajudicial executions might receive adequate and prompt compensation for the violations herein established. 

3.            That it take the necessary measures so that the victims of the attempted extrajudicial executions might receive adequate and prompt compensation for the violations herein established. 

4.            That it effectively prevent a resurgence and reorganization of the Civil Patrols. 

5.             That in Guatemala the principles established 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 to ensure that the right of those who work to secure respect for fundamental rights is respected and that their life and personal integrity are protected.  

            IX.            PUBLICATION 

165.            On March 6, 2001, the Commission sent Report Nº 26/01 to the Guatemalan State and to the petitioners in compliance with Article 51(2) of the American Convention. It also gave the State one month in which to comply with the above recommendations. That period has now expired, and the Commission has received no response from the State regarding this matter. 

166.            In light of the above considerations and pursuant to Article 51(3) of the Convention and Article 48 of its Regulations, the Commission decides to repeat this report’s conclusions and recommendations, to publish it, and to include it in its Annual Report to the OAS General Assembly. The Commission, in compliance with its mandate, will continue to monitor the steps taken by the Guatemalan State in connection with the aforesaid recommendations until such time as they have been carried out in full. 

Done and signed for the Inter-American Commission on Human Rights in Santiago, Chile, April 4 , 2001 Signed: Claudio Grossman, Chairman; Juan E. Méndez, First Vice-Chairman; Helio Bicudo, Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo, Commissioners.

 

RESOLUTION 1/06

APRIL 24, 2006

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

            HAVING SEEN:

            1.         On December 8, 2000, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the IACHR”) approved Report on admissibility and the merits No. 117/00, in keeping with Article 50 of the American Convention on Human Rights (hereinafter “the American Convention”) and so notified the Guatemalan State on December 22, 2000.

            2.         In Report No. 117/00, the Commission decided, in keeping with Article 40 of its Regulations then in force, to join several cases and to refer to them in a single report.  One of the cases joined was number 10.626 on Remigio Domingo Morales and Rafael Sánchez, and in the chapter on “Facts alleged” it stated as follows:

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.

            3.         On March 2, 2001, the Guatemalan State reported as follows regarding the case of Remigio Domingo Morales and Rafael Sánchez: “To date the persons accused have not been placed on trial so the family members of the offended persons did not lodge any accusation against them, thus the Public Ministry did not continue the investigations into the case for lack of sufficient elements of proof.” 

            4.         On April 7, 2001, the Commission approved and published Report No. 59/01 pursuant to Article 51 of the American Convention, whose first conclusion reads: “Based on the above analysis, the Commission confirms its conclusion that the facts prompting the petitions are true and that the State is responsible for violating 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….”[1]

            5.         On July 21, 2004, and January 6, 2006, the Guatemalan State reported that after undertaking an investigation into the facts alleged, it was possible to verify that on June 28, 1990, Messrs. Remigio Domingo Morales and Rafael Sánchez were admitted to the Hospital of Huehuetenango to receive attention for their multiple blunt injuries, and both were discharged from the hospital July 3, 1990. In addition, the State reported that according to an investigation by officials from COPREDEH, it was possible to find that Messrs. Morales and Sánchez are alive, and, therefore, were not victims of extrajudicial execution, as stated in the report issued by the IACHR.  The State produced evidence that included a letter signed by the executive director of the Hospital Nacional de Huehuetenango dated March 23, 2004; copies of residential identification papers; affidavit signed by Natividad Morales López dated January 9, 2004; affidavit signed by Remigio Domingo Morales dated January 14, 2004; and affidavit signed by Esperanza Domingo Godínez.

            6.         The Guatemalan State, by virtue of the information and documents produced, asked the Commission to correct Report on the Merits No. 59/01, of April 7, 2001, in the pertinent parts, making it clear that the alleged victims were not extrajudicially executed.

            7.         The IACHR, despite the efforts of the Executive Secretariat, has not been able to contact the original petitioners since January 1995.

            CONSIDERING:

            1.         That a material error as regards the facts of the case has been shown, that became known to the Commission subsequent to the approval and publication of Report No. 59/01.

            2.         That the Inter-American Court on Human Rights has indicated

54. At the same time, the Court cannot ignore the possibility of exceptional circumstances that would make it permissible for the Commission to amend the aforementioned report. One such circumstance would be partial or full compliance with the recommendations and conclusions contained in the report. Another would be the existence in the report of errors of substance regarding the facts of the case. Lastly, another situation would be if facts unknown at the time the report was issued and which could have a decisive effect on its content were to come to light. This implies that there can be no re-opening of the debate over the original facts or legal considerations.

55. In any of the above cases, amendment may be requested only by the petitioners or the State. Such a request for amendment may be made only prior to publication of the report, within a reasonable period from the date of its notification. The parties should be provided with an opportunity to discuss the facts or errors that have given rise to the petition, in accordance with the principle of procedural equity.[2]

            3.         In the case at hand, the request for rectification by the State came after publication of the report.  Nonetheless, the IACHR observes that the material error is substantial and influenced the content of the decision. 

            4.         That the material truth, within respect for juridical security and procedural equity, should prevail over procedural formalities.

            5.         That Report No. 59/01 should be rectified.

            IN VIEW OF THE FOREGOING, THE IACHR RESOLVES:

1.         To rectify Report No. 59/01, published and approved on April 7, 2001, so as to state that on June 28, 1990, Messrs. Remigio Domingo Morales and Rafael Sánchez were detained by members of the Civil-Defense Patrols, and that same day were taken to the Hospital of Huehuetenango to receive attention for their multiple blunt injuries, and both were discharged from the hospital on July 3, 1990.

            2.         The Guatemalan State violated the right to physical integrity to the detriment of Messrs. Remigio Domingo Morales and Rafael Sánchez.

            3.         To notify the Guatemalan State and the petitioners of this resolution.

            4.         To publish this resolution and attach it to Report No. 59/01 in all the print and electronic publications of the IACHR.