...continued

 

4.       Right to due process and to judicial protection

 

82.     The Commission will now examine the question of whether the Government of Guatemala violated in this case Articles 8 and 25 of the Convention.  Articles 8 and 25 of the Convention recognize the right of everyone to recourse, the right to institute judicial proceedings and to be heard in them, and the right to a ruling by the competent judicial authority. Article 25(1) of the Convention provides that:

 

Everyone 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 …

 

Article 8(1) of the Convention 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 and obligations of a civil, labor, fiscal, or any other nature. Article 25(2) provides that Governments should ensure that any person claiming a remedy shall have his rights determined by the competent authority.

 

83.     In the present case, the Commission must deal with the question of the application of Articles 8 and 25 in two aspects. The Commission considers the application of both Articles with respect to the labor demands made by the workers of Finca “La Exacta” and with respect to the claim before the court of law arising from the acts of violence committed on August 24, 1994.

 

a.       Denial of justice with respect to the labor claims of the workers on Finca “La Exacta”

 

84.     The Commission concludes that the Government of Guatemala violated Articles 8 and 25 of the Convention with respect to the labor claims brought by the workers on Finca “La Exacta” before the Guatemalan courts. These violations are in respect both of the claims made in the initial petition of the workers to the Guatemalan courts, which initiates a proceeding arising from the worker dispute, and of the claims arising from the dismissal of workers following the submission of the petition arising from the worker dispute.

 

85.     As mentioned before, the organized workers on Finca “La Exacta” filed a petition to institute a proceeding in connection with the worker dispute on February 18, 1994, to present their claims related to their working conditions to the Guatemalan courts. [52] In accordance with the Labor Code of Guatemala, this petition may be submitted when a dispute that may lead to a strike arises at a workplace. [53] According to the Labor Code of Guatemala, once a petition of this type if submitted, the competent judge for the case is required to convene a conciliation tribunal within 12 hours. [54] The resulting conciliation procedure may not last more than 15 days. [55] If no agreement is reached, the workers may request the court’s permission to begin a strike.

 

86.     In the present case, the courts never ruled on the petition presented by the organized workers of Finca “La Exacta”. After initially admitting the case to begin the proceeding, the Second Labor Court took no measures whatsoever to move it forward until several months later. On May 12, 1994 the Second Labor Court notified the workers that  the case had been transferred to the Sixth Labor and Social Welfare Court of  Guatemala City. [56] Although when the workers occupied Finca “La Exacta”, several months had already passed since the filing of the petition, no additional measures had been taken in the case. Today, more than two years later, the Guatemalan labor courts have still not processed the claims brought by the workers in their filing of February 18, 1994, since the proceeding provided for by law for a collective labor dispute has not been completed.

 

87.     Consequently, the organized workers who sought to obtain access to the courts for the determination of their rights and obligations as workers vis-à-vis the owners and administrators of Finca “La Exacta” were denied the possibility of a hearing within a reasonable time period, in violation of Article 8 of the Convention. The Guatemalan labor courts did not provide a forum in which the workers’ claims could be heard, with a view to a settlement, through mutual collaboration with the owners and administrators of the estate or through a legal strike. The opportunity to be heard was not given to the workers within the time limits provided for in Guatemalan law or within any other reasonable time period.

 

88.     Nor did the courts grant a hearing or resolve the case arising from the dismissal, in early March 1994, of the workers who had formed a labor association on Finca “La Exacta” and who had joined in submitting the petition to institute proceedings in connection with the collective labor dispute. The actions of the owners of Finca “La Exacta” violated the ruling of the Second Labor Court when it officially allowed the petition to stand. [57] In that ruling, and in accordance with Guatemalan law, the Court prohibited both parties from taking reprisals against each other. The ruling specifically provided that any termination of contract must be authorized by the court. As indicated above, the dismissed workers immediately instituted proceedings for their reinstatement before the Second Labor Court. [58]

 

89.     Despite the fact that the owners of Finca “La Exacta” had not complied with the orders of the Court itself, the Second Labor Court did not take appropriate measures with respect to the workers’ claims.  More than two years after the filing of the applications for reinstatement, the Guatemalan Labor Courts have not succeeded in reinstating the workers.  According to Guatemalan law and pursuant to the orders of the Second Court, the owners of Finca “La Exacta” were obliged to immediately repair any damage that they might have caused as a result of the reprisals taken against those who participated in the labor dispute. [59]

 

90.     The Commission therefore concludes that the dismissed workers were not given an opportunity to be heard nor were they given access to a prompt and effective remedy against the violations of the law that adversely affected their right to work and their right to freedom of association, rights recognized both in the Guatemalan Constitution and in the American Convention. [60]   This denial of access to justice constitutes a violation of Articles 8 and 25(1) of the Convention.

 

91.     The Commission’s conclusion with regard to the lack of judicial protection for the labor claims of the workers of Finca “La Exacta” is supported by the fact that the norm in Guatemala is for labor courts to be remiss in the fulfillment of their obligations. [61] According to information transmitted to the Commission in an amicus curiae document, the Sixth Labor Court to which competence was transferred in the matter of the procedure arising from the labor dispute in this case settled only one case between March 1994 and March 1995, which is the most relevant period for this case. [62]   The Commission has indicated above that the labor courts of Guatemala are not in a position to provide judicial protection in labor matters. [63]   MINUGUA has also confirmed that the Guatemalan courts do not attend in a timely or effective manner to labor issues and issues of freedom of association. [64]

 

92.     The Guatemalan authorities have also admitted that this case is part of a general tendency for the Guatemalan courts to fail to provide protection in labor-related matters.  The Attorney General of Guatemala, Acisclo Valladares Molina, declared, shortly after the incident of August 24, 1994 that the case was part of a series of cases that “should be resolved judicially within a short period, [but that] they were dragging on indefinitely in the labor courts”. [65]

 

b.       Denial of justice with respect to the violations committed on August 24, 1994

 

93.     The Commission also concludes that the provisions of Articles 8 and 25 of the Convention were violated with respect to the attempts to secure justice for the violations of rights committed on August 24, 1994. As was stated in the Commission’s examination of the admissibility of the case, international observers have indicated that the processing of the case has been unjustifiably slow and inadequate.  More than two years after the events of August 24, 1994 no charges have been brought against any suspect and the case is still in the preliminary stage.  The Commission’s conclusion that the petitioners are excused from the requirement for the exhaustion of domestic remedies, based on these and other factors, also points to the conclusion that Articles 8 and 25 have been violated. [66]

 

94.  The Commission also notes that the investigation carried out in this case has been inadequate, which clearly shows the lack of access to an effective legal remedy.  Moreover, as was also indicated in the section on admissibility, various authorities of the Guatemalan Government have stated that they were not prepared to fully investigate the incident and to prosecute those responsible.

 

95.  The competent court in the case, the Second Court of First Instance of Coatepeque, and the Public Prosecutor’s Office have been guilty of unwarranted delay in questioning key witnesses and have failed to fully and effectively interview the witnesses.  The police officers called as witnesses have not always appeared when summoned to collaborate in the investigation.

 

96.  The Montaña Plan lists the names of certain police officers responsible for the operation of August 24, 1994.  Nevertheless, now more than a year after the incident, the courts and the Public Prosecutor’s Office have received the statement of the first of these officers.

 

97.  On October 11, 1995 14 months after the police raid on Finca “La Exacta”, the Second Court of First Instance of Coatepeque took a statement from the first police officer.  Francisco Filiberto Duarte Gómez, the agent responsible for preparing the plan of operations, testified before the court on that day. [67]   The court originally found sufficient grounds to detain Mr. Duarte based on his statement, but released him in December 1995.

 

98.     According to uncontested information provided by the petitioners, the police officer mentioned in the Montaña Plan as the one responsible for the operation of August 24, 1994 was recently summoned to testify on November 11, 1995.  This officer, Reyes Gumercindo López Martínez, refused to appear when first summoned. He recently testified in January 1996.

99.     In its report of January 23, 1996 the Government informed the Commission that on November 11, 1995 the Second Court of First Instance of Coatepeque had ordered that a statement be taken from Basilio Hernández Guzmán.  Mr. Hernández is a police commissioner who was named as a suspect in the case. However, he recently gave a statement in December 1995. [68] When his testimony was finally taken, the witness offered an alibi indicating that he had not been present during the violent incidents of August 24, 1994.  The judge who heard the testimony did not ask the witness any questions about his alibi or about any other matter.

 

100.   In its report of January 23, 1996 the Government also notes that the Office of the Public Prosecutor heard testimony from various other important witnesses in November and December 1995 more than two years after the events that are the object of this petition. The Government provided the testimony of each of the witnesses mentioned in its report. All of these witnesses declared that they had not been present in the place where the acts took place, either because they had already left the area of Finca “La Exacta” altogether or because they provided only support service and therefore were not close to the area where the clashes took place.  The Public Prosecutor’s Office did not question any of these witnesses after their testimony and therefore did not obtain from the witnesses any reply to crucial questions concerning the alibi of each of the witnesses and any information which they might have about the identity of other persons who participated in the violent acts that took place on August 24, 1994. [69]

 

101.   The helicopter pilot who was hired by the owners of Finca “La Exacta” to participate in the events of August 24, 1994 was recently questioned in January 1996. [70] Particular importance should have been attached to this interview, not only because the helicopter had participated in the raid but also because Diego Orozco was taken in one of the helicopters present on August 24, 1994 and was alleged to have been thrown out of the helicopter.

 

102.   The unwarranted delay in gathering evidence and taking the statements of these important witnesses evidently impeded the process of ascertaining the truth and ensuring that justice was done in the internal investigation of the events of August 24, 1994.  As time passes, the evidence of witnesses becomes less reliable and it becomes more difficult to find new evidence. The fact that meaningful interviews were not conducted with the witnesses even at this late stage has exacerbated the problem.

 

103.    The court and the Public Prosecutor’s Office have failed completely to fulfill their obligation to take the statements of other key witnesses and to follow up the information obtained from the witnesses that gave statements. For example, the record does not show that statements were taken from the three police officers named as assistants to Reyes Gumercindo López Martínez in the operation of August 24, 1994.

 

104.   The pilot whose statement was taken in January 1996 said that one of the owners of Finca “La Exacta”, Alvaro Blanco, traveled in the helicopter on the day of the incident. [71] Mr. Blanco, however, never gave a statement, even though he should have important information on key aspects of the operation, such as the sequence of the events that occurred on August 24, 1994, responsibility for the acts and the aims and intentions of the police units on the day in question. He should also be questioned about the fate of Diego Orozco, since he was present in one of the helicopters that were on the scene of the events.

 

105.   The police officer who prepared the plan of operations, Francisco Filiberto Duarte Gómez, provided the name of the owner of a neighboring estate to Finca “La Exacta”, who supplied another helicopter for use on August 24, 1994. There is no evidence that this person has made a statement, despite the importance of the information that he might have about the responsibility for the raid and possibly about the fate that befell Diego Orozco.

 

106.   Finally, the Commission concludes that Government officials and/or entities clearly sought to obstruct the investigation of the events of August 24, 1994.  As already noted, the preparation of a modified version of the Montaña Plan to submit to the Office of the Public Prosecutor can be interpreted only as an attempt to conceal prejudicial evidence and, therefore, to impede the effective investigation of the case.

 

107.   The Government participants tasked with the criminal investigations and necessary judicial proceedings to ascertain the truth and punish those responsible in this case failed to discharge their obligations in a timely manner, which prevented justice from being done. Other Government participants, the police units and individual police officers who participated in the events of August 24, 1994 impeded the investigation or collaborated at a late stage. In this case, therefore, access to justice for the victims of the incidents of August 24, 1994 and their families was delayed and blocked.

 

5.       Article 1(1) Obligation to respect rights

 

108.   The violation of rights with respect to the court orders proves that the State of Guatemala has failed to discharge the obligation provided for in Article 1(1) of the American Convention to “respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms”.

 

109.    The first obligation of any State party to the American Convention is to respect the rights and freedoms contained therein.

 

Whenever a State organ, official or public entity violates one of those rights, this constitutes a failure of the duty to respect the rights and freedoms set forth in the Convention…….. A State is responsible for the acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside the sphere of their authority or violate internal law. [72]

 

110.        As already indicated, in this case the Guatemalan police forces, acting in their official capacity, took part in the acts committed on August 24, 1994 which violated the right to life, the right to humane treatment and the right to freedom of association, protected by Articles 4, 5, 16 and 19 of the Convention.  The Guatemalan agents also prevented the application of justice, in violation of Articles 8 and 25 of the Convention.  The State of Guatemala has therefore violated Article 1(1) of the Convention as a result of the violations of the Convention committed by its agents, and bears responsibility for those violations.

 

111.   The second obligation of the State is to “guarantee” the free and full exercise of the rights recognized by the Convention.  The Commission wishes to reiterate that this obligation:

 

Implies the duty of States Parties 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 violation of the rights recognized by the Convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation. [73]

 

112.   Articles 1 and 6 of the Convention against Torture also provide that States parties shall prevent and punish torture.  The State of Guatemala has not fulfilled its obligation to prevent, investigate and punish the violations of the rights of the workers of Finca “La Exacta” and to pay compensation for these violations.

 

113.   In the first place, the Government did not prevent the acts of violence that took place on August 24, 1994.  The fact that the labor courts of Guatemala did not rule on the claims of the workers of Finca “La Exacta” created a situation in which the workers could not obtain legal protection for their rights.  As a result of the frustration of the workers faced with this lack of protection, a tense situation developed between the workers and the owners and administrators of Finca “La Exacta”.

 

114.   The Government did not take adequate steps to ensure that the tense situation did not lead to acts of violence and to the violation of human rights.  On the contrary, it elaborated a police plan that clearly provided for the use of force to settle the occupation of Finca “La Exacta”.  No court of justice or other entity intervened to ensure that the plan did not lead to the use of excessive force, in violation of the rights of the workers occupying the estate.

 

115.   The State also failed to fulfill its obligation to investigate and punish violations of the rights recognized by the Convention when the events took place.  Nor did it pay any compensation to the victims of the violations in the case.  The Government failed to carry forward the judicial proceedings arising from the incidents of August 24, 1994 with a view to bringing to justice those who carried out the attack against the workers of Finca “La Exacta”.  In accordance with the Commission’s conclusion stated above, the procedures and investigations carried out have been inadequate and ineffective.

 

116.   No one has been formally accused much less punished.  It cannot be denied that the police force of Guatemala was responsible for the use of excessive force in this case, even though certain doubts remain as to the identity of the individual police officers responsible for preparing the attack and of the agents who actually fired their weapons.  But no police officer has been punished by the Government.  Nor has the Commission received information that any police officer has been dismissed.

 

117.   The Government has also failed in its obligation to guarantee rights with respect to the acts committed by private individuals in violation of the rights, enshrined in the Convention, of the workers organized on Finca “La Exacta”.  The owners and administrators of Finca “La Exacta” dismissed a large number of workers on the estate in reprisal for the decision of these workers to organize a union and to file a labor claim in the courts.  Persons associated with the owners and administrators of Finca “La Exacta”, together with other private persons, also collaborated with the police force in preparing and executing the raid of August 24, 1994.  These actions of private individuals resulted in violations of the right to freedom of association, the right to life and to humane treatment and the right of children.

 

118.   The Guatemalan courts never revoked the firings of the workers nor has the Government investigated or punished the private individuals who participated in the planning and execution of the attack of August 24,1994.  The private individuals whose names appear in the judicial proceedings as participants in the violations of rights that took place on August 24, 1994 have not even been called upon to declare as witnesses.  The State is therefore responsible for the acts of these private individuals that violate the rights protected by the Convention, “because of the lack of due diligence to prevent the violation or to respond to as required by the Convention. [74]

 

119.        The State of Guatemala is responsible for the violation of Article 1(1) inasmuch as it has not guaranteed the free and full exercise of the rights guaranteed in the Convention.  Consequently, the violations of the Convention that took place are attributable to the State both for this reason and as a result of the State’s failure to fulfill its responsibility to respect the rights recognized in the Convention.

 

III.      DEVELOPMENTS SUBSEQUENT TO THE ISSUANCE OF REPORT 41/96, PURSUANT TO ARTICLE 50 OF THE AMERICAN CONVENTION

 

120.   On October 16, 1996, at its 93^rd period of sessions, the Commission adopted report 41/96, in accordance with Article 50 of the American Convention. In that report, the Commission concluded that the State of Guatemala was responsible for the violation of the right to life, recognized in Article 4 of the Convention, with respect to Efraín Recinos Gómez, Basilio Guzmán Juárez and Diego Orozco; the right to humane treatment, recognized in Article 5 of the Convention, with respect to Diego Orozco, the entire group of workers occupying the estate and their families, who suffered the attack of August 24, 1994 and especially the 11 persons who suffered serious injuries: Pedro Carreto Loayes, Efraín Guzmán Lucero, Ignacio Carreto Loayes, Daniel Pérez Guzmán, Marcelino López, José Juárez Quinil, Hugo René Jiménez López, Luciano Lorenzo Pérez, Felix Orozco Huinil, Pedro García Guzmán and Genaro López Rodas; the right to freedom of association, recognized in Article 16 of the Convention, with respect to the workers of Finca “La Exacta” who organized a labor association to express their labor demands to the owners and administrators of Finca “La Exacta” and to the Guatemalan courts and who suffered reprisals for this reason; the right of children to special protection, provided for in Article 19 of the Convention, with respect to the minors who were present during the raid of 24 August 1994; the right to a fair trial and to judicial protection, provided for in Articles 8 and 25 of the Convention, with respect to the organized workers who sought access to judicial remedies in connection with their labor demands, and with respect to the victims of events of August 24, 1994 and their relatives who sought justice in connection with these events, all of the above in conjunction with Article 1(1) of the Convention, for having failed to fulfill its obligations under the abovementioned Article. The Commission concluded also that the State of Guatemala was responsible for the violation of Articles 1, 2 and 6 of the Convention against Torture, with respect to the torture suffered by Diego Orozco.

 

121.   The Commission also recommended that the State of Guatemala: 1) begin a prompt, impartial and effective investigation of the events of August 24, 1994 on the basis of which it could prepare an official report detailing the circumstances of and responsibility for the use of excessive force on that date; 2) take the necessary steps to subject the persons responsible for the acts of August 24, 1994 to the appropriate judicial processes, which should be based on a full and effective investigation of the case; 3) make reparations for the consequences of the violations of the rights identified, including the payment of fair compensation to the victims or their families; and 4) take the necessary steps to guarantee that violations of the type that took place in this case do not recur in future.  The Commission also decided to transmit the report to the State and to grant it a period of two months to implement the recommendations contained therein.  The Commission transmitted the report to the State of Guatemala on October 30, 1996 the date on which the time limit of two months began to run.

 

122.   On June 6, 1997 in a communication dated December 30, 1996, the State of Guatemala requested the IACHR to grant an extension for reporting on the action it had taken to implement the recommendations contained in report 41/96.  On January 9, 1997 the Commission received the reply of the State in which it stated:

 

[With respect to the first recommendation, that] the Government of Guatemala has previously reported to the illustrious Commission on the investigation conducted by the Office of the Public Prosecutor in this case, which marked the start of the action taken to clarify the circumstances that led to the events…

 

[With respect to the second recommendation, that] independently of the proceeding followed in the inter-American system for the protection of human rights, the domestic legal order provides for certain procedures to be followed when a situation recognized and characterized as a crime has taken place.  In this regard, the Office of the Public Prosecutor conducted the appropriate investigation and requested legal extensions from the court to gather more rational and substantial elements of proof to determine responsibility, culpability and the direct participation of those who appear to be involved in the acts that took place on August 24, 1994…

 

[With respect to the third recommendation, that] it was now not possible] to pronounce on the matter, since there is a criminal proceeding which, while [it was] provisionally closed, was nevertheless likely to be reactivated at any time, depending on whether other elements of proof and procedural information emerged that might add new elements to the process.

 

[With respect to the fourth recommendation, that] the police operation to execute the legal eviction orders had been carried out with sufficient guarantees for those persons who for various reasons had taken their position.  Such operations provide for negotiation, dissuasion and persuasion of the occupiers and for the participation and accompaniment of human rights organizations as guarantors of the actions of the security forces.

 

123.   The State undertook to add to the information provided to the Commission, and, to this end, in a communication transmitted to the IACHR on January 10, 1997 requested an extension of 30 days.  On January 17, the State requested a further extension of 60 days.  The Commission granted an extension of up to 6 March 1997.

 

124.   On March 5, 1997 at its 95^th period of sessions, the Commission held a hearing on the case, at which representatives of the State and petitioners participated.  The former stated that the provisional closure of the proceeding should not be interpreted as a dismissal of the case since, despite that, the Office of the Public Prosecutor had continued to receive statements from police officers.  They stated further that the case was very complex because of the participation of a large number of police officers in the execution of the operation, and that more time and evidence were therefore needed.  On that same occasion, the State indicated that, for the time being, it could not reply to the question of whether or not it accepted the proposal for a friendly settlement but that it would do so within the next 45 days. [75]   Based on this reply, and after hearing the petitioners, the Commission decided to await the position of the State for the agreed time period.

125.   On April 21, 1997 the Government of Guatemala informed the Commission that it agreed to initiate a proceeding for a friendly settlement based on respect for the human rights provided for in the American Convention.  On August 15 of the same year, the IACHR received a new communication from the State in which it reported on the proceeding agreed upon to implement the friendly settlement procedure.  On January 12, 1998 the IACHR received another communication from the State informing it that one of the difficulties in the way of the friendly settlement procedure lay in the petitioners’ claims, which exceeded reasonable limits but that, nevertheless, the Government had the highest interest in going forward with the proceeding proposed by the IACHR.

 

126.   On February 24, 1998 representatives of the State held a meeting with Claudio Grossman, a member of the Commission, in which it was agreed that, prior to a Government proposal for a settlement, the petitioners should accredit the representatives of the victims.  On June 24, 1998, the petitioners transmitted to the IACHR the requested accreditation. 

 

127.   On February 23, 1999 the petitioners contacted the IACHR and observed that the friendly settlement proceeding was not yielding results and that they continued to await a counter offer from the State.  At the same time, they suggested another approach in the negotiations.  On February 25, 1999 the Commission communicated to the State the suggestions of the petitioners.

 

128.   On February 18, 2000 the petitioners submitted to the IACHR a list of the affected persons who indicated their wish for CALDH to conduct the negotiation aimed at reaching a friendly settlement of the matter.  On April 12 of the same year, the petitioners communicated to the IACHR that a new meeting had been held with the Government of Guatemala but that no agreement had been reached.

 

129.   On August 9, 2000 the Government of Guatemala, represented by the President of the Republic, Dr. Alfonso Portillo, recognized:

 

The institutional responsibility of the State arising from its failure to fulfill the obligation imposed by Article 1 (1) of the American Convention to respect and guarantee the rights enshrined in the Convention…with respect to the following persons or cases:

 

(…)

 

4.     FINCA “LA EXACTA” (IACHR 11.382)

 

(…)

 

[the] Guatemalan Government accepted that the events that gave rise to the filing of the claims to the Commission did indeed take place …undertook to begin negotiations on those cases and pledged to initiate a process of friendly settlement that would provide compensation and/or assistance to the families of the victims identified or, where possible, to the victims directly.  The amount of the compensation which the Government of Guatemala undertook to pay to the persons concerned would be determined at a later date in a manner to be agreed upon with the victims or their family members or, failing that, on the basis of the principles and criteria established in the inter-American system for the protection of human rights.  It [also] undertook to follow up and promote the investigation of the acts…to institute civil, criminal and administrative proceedings against those persons who, in fulfillment of State functions or acting with the authority of the Government, are presumed to have participated in the alleged violation…[Lastly], the State of Guatemala, through COPREDEH, undertook to report every six months to the Inter-American Commission on Human Rights on the fulfillment of the obligations assumed by the State pursuant to this declaration. [76]

 

130.   The Commission takes note of the fact that, following the issuance of report 41/96 on October 16, 1996 in accordance with Article 50 of the Convention, the State, on April 21, 1997 declared its willingness to reach a friendly settlement with the petitioners under the auspices of the IACHR, although it also observes that this process was delayed for more than five years, mainly, though not exclusively, for reasons attributable to the State.

 

131.   On the other hand, the IACHR recognizes and highly appreciates the considerable progress made by the State of Guatemala in assuming institutional responsibility for violations of human rights in this case.  However, the Commission notes that, from the initial response to report 41/96 up to recognition of institutional responsibility, the State has taken no specific and effective measures to implement the recommendations made by the Commission.  The IACHR has further noted that the State is not effectively honoring the commitment that it gave in this case in the declaration of August 9, 2000.  The IACHR must therefore continue with the proceeding, in accordance with Article 51 of the Convention.

 

IV. CONCLUSIONS

 

132.   In view of the factual and legal considerations examined above, the Commission wishes to reiterate its conclusions that the Guatemalan State, in light of the information and observations contained above, has failed to fulfill the obligations which it has under Article 1(1) of the Convention and has violated, in conjunction with Article 1(1) of the Convention:

 

a.                  The right to life, recognized in Article 4 of the Convention, with respect to Efraín Recinos Gómez, Basilio Guzmán Juárez and Diego Orozco;

 

b.                 The right to humane treatment, recognized in Article 5 of the Convention, with respect to Diego Orozco, the entire group of workers who occupied the estate and their families, who suffered the attack of August 24, 1994, and, in particular, the 11 persons who suffered serious injuries: Pedro Carreto Loayes, Efraín Guzmán Lucero, Ignacio Carreto Loayes, Daniel Pérez Guzmán, Marcelino López, José Juárez Quinil, Hugo René Jiménez López, Luciano Lorenzo Pérez, Felix Orozco Huinil, Pedro García Guzmán, and Genaro López Rodas;

 

c.                  The right to freedom of association, recognized in Article 16 of the Convention, with respect to the workers on Finca “La Exacta” who organized themselves into a labor union to convey their labor demands to the owners and administrators of Finca “La Exacta” and to the Guatemalan courts and who suffered reprisals for this reason;

 

d.                 The right of children to special protection, recognized in Article 19 of the Convention, with respect to the minors who were present during the raid of August 24, 1994;

 

e.                  The right to a fair trial and to judicial protection recognized in Articles 8 and 25 of the Convention, with respect to the organized workers who sought access to legal remedies in connection with their labor demands and with respect to the victims of the events of August 24, 1994 and their relatives who sought justice in connection with these events.

 

133.   The State of Guatemala has also violated Articles 1, 2 and 6 of the Convention against Torture in connection with the torture suffered by Diego Orozco.

 

V.      RECOMMENDATIONS

 

134.    Based on the analysis and conclusions of this report,

 

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING RECOMMENDATIONS TO THE STATE OF GUATEMALA:

 

1.                 That it begin a prompt, impartial and effective investigation of the events that took place on August 24, 1994 to be able to detail, in an official report, the circumstances of and responsibility for the use of excessive force on that date.

 

2.                 That it take the necessary steps to subject the persons responsible for the acts of August 24, 1994 to the appropriate judicial proceedings, which should be based on a full and effective investigation of the case.

 

3.                 That it make reparations for the consequences of the violations of the rights listed, including the payment of fair compensation to the victims or their families.

 

4.       That it take the necessary measures to ensure that violations of the type that took place in this case do not recur in future.

 

VI.      PUBLICATION

 

135.   On March 14, 2002, the Commission transmitted Report No. 30/02 – the text of which appears above – to the Guatemalan State and the petitioners, in compliance with the provisions of Article 51.2 of the American Convention, and it granted the State a period of 30 days in which to submit information on its compliance therewith. On April 16, 2002, the Guatemalan State sent a note reporting that the Public Prosecution Service had requested that the investigation be reopened, and that this request had been granted by the investigation’s controlling judge on November 2, 2001; that the same judge had summoned Messrs. Pedro Castro Acabal and Luis Fernando Tobar Mejía, together with other police officers involved in the operation at the La Exacta estate, but that the court has not yet served the summonses or heard from the defendants; that on November 27, 2001, the Public Prosecution Service requested the arrest of Harry Omar Hernández, who had been accused of having fired the shots that hit Diego Orozco, and that this arrest was ordered by the judge on November 29, 2001, and is still pending execution. With respect to reparations, the State reports that “it is about to hold talks with the petitioners in order to agree on how reparations should be made to the victims in the case at hand.”

 

136.   The Inter-American Commission appreciates the information furnished by the Guatemalan State; however, it notes that the information on the status of the judicial investigations describes matters prior to the issuing of Report 30/02. The Commission also notes that the State has not complied with the other terms of the recommendations set forth in that report, as it should have done at this stage in the proceedings. Consequently, in the IACHR’s opinion, it would not be appropriate to offer additional comments further to those given in the preceding paragraphs of this report.

 

          137.   In light of the above comments, and pursuant to the terms of Article 51.3 of the American Convention and Article 48 of its Rules of Procedure, the Commission decides to reiterate the conclusions and recommendations set forth above in Chapters VI and VII, respectively; to publish this report; and to include it in its Annual Report to the General Assembly of the OAS. In accordance with the terms of Article 46 of its Rules of Procedure, the Commission will continue to assess the measures adopted by the Guatemalan State in connection with the above recommendations until such time as it has complied with them in full.

 

Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the 21st day of October 2002. (Signed): Juan Méndez, President; José Zalaquett, Second Vice-President; Commissioners Robert K. Goldman, Julio Prado Vallejo, Clare K. Roberts, and Susana Villarán.