GARCÍA, RONY ALEXIS BETANCOURT HERNÁNDEZ, DIÓMEDES OBED GARCÍA, AND
ORLANDO ALVAREZ RÍOS
CARDINAL POINTS" CASE)
1. On October 11,
2000, the Center for Justice and International Law (CEJIL) and Covenant
House Latin America (hereinafter the petitioners) lodged a petition with
the Inter-American Commission on Human Rights (hereinafter "the
Inter-American Commission", or "the IACHR"). The petition
alleges the international responsibility of the State of Honduras
("the State", "Honduras" or "the Honduran
State"), for the illegal detention, torture, and subsequent murder
of Marco Antonio Servellón García (aged 16), Rony Alexis Betancourt
Hernández (aged 17), Diómedes Obed García (aged 18), and Orlando
Alvarez Ríos (aged 32).
2. The petitioners
assert that the facts alleged in the petition constitute violation of
the following rights recognized in the American Convention on Human
Rights (hereinafter "the American Convention"): right to life
(Article 4); right to humane treatment (Article 5); right to personal
liberty (Article 7); right to a fair trial (Article 8), and right to
judicial protection (Article 25); and, furthermore, as regards Marco
Antonio Servellón García and Rony Alexis Betancourt Hernández, the
rights of the child (Article 19). They
also allege violation of the general obligation of the State to ensure
the rights protected in Article 1 of the Convention.
3. With respect to
admissibility, the State holds that the petition is inadmissible for
failure to exhaust domestic remedies in accordance with Article 46(1) of
the American Convention. For
their part, the petitioners alleged unwarranted delay in investigation
and in rendering a decision under those remedies, and that said remedies
were not effective because they were not capable of producing the
results for which they were designed.
Therefore the exceptions provided at Article 46(2) of the
American Convention apply.
Without prejudging the merits of the matter, the IACHR concludes
in this report that the petition is admissible in accordance with the
exceptions contained in Article 46(2) (a) and (b) of the American
Convention. On that basis, it finds that the petitioners are exempt from
the requirement to exhaust the remedies under domestic law provided at
section 1(a) of the same provision and decides to continue its
examination of merits with regard to alleged violation of Articles 1(1),
4, 5, 7, 8, 19, and 25 of the above-mentioned international instrument.
PROCESSING BY THE INTER-AMERICAN COMMISSION
The petition was received on October 11, 2000, and
transmitted to the Honduran State on October 24, 2000, as case number
12.331, in keeping with the Regulations of the Commission then in
effect. On June 12, 2001,
the petitioners presented a communication in which they requested that
Article 39 of the Rules of Procedure of the IACHR currently in force be
applied and the facts alleged in the petition be presumed to be true,
because since the processing of the petition began the State had not
disputed the allegations. The
request was duly brought to the attention of the State, which replied on
September 10, 2001.
POSITIONS OF THE PARTIES
6. The petitioners
have alleged that in Honduras there is an organized practice tolerated
by the State of allowing to remain unpunished crimes involving agents of
the National Police committed against street children and youths.
According to them, this situation is attested in the court file.
7. The petitioners
say that on September 15, 1995, a police operation was carried out in
the vicinity of Tiburcio Carías Andino National Stadium, in the city of
Tegucigalpa, aimed to prevent crimes being committed during the parades
to commemorate Honduras' Independence Day.
During that operation the police patrols, registered with the
numbers 50, 77 and 82 of the Public Security Force (hereinafter FUSEP)
of the Seventh Regional Command, detained 128 youths in an illegal and
arbitrary manner, given that the police did not have court orders, nor
did they catch those youths in flagrante
delicto. Among the
youths that the police detained were Rony
Alexis Betancourt, Marco Antonio Servellón García, and Orlando Alvarez
Ríos, who were taken to headquarters of the Seventh Regional
Command (hereinafter CORE 7) of the FUSEP, and whose admittance to the police cells was registered
as numbers 45, 63 and 76,
in the record of arrests kept by that command.
Diómedes Abel García was intercepted by agents of the Honduran
police near an electronic games arcade on September 16, 1995, and was
taken in a patrol car to CORE 7. His
arrest was not formally entered in the respective records but was
confirmed by other detainees (Appendix 1 of the petition).
8. The petitioners
say that the Police Judge of Regional Command Number Seven of the Public
Security Forces, Roxana Sierra Ramírez, told the relatives of Marco
Antonio Servellón and of Rony Betancourt that they would be released on
Monday, September 18, 1995. Furthermore,
Dilcia Alvarez Ríos, the sister of Orlando Alvarez, declared before the
Second Justice of the Peace for Criminal Matters in and for the Central
Municipality of Tegucigalpa that on September 16, 1995, she received a
telephone call from her brother from CORE 7, telling her that he would
be released on Monday, September 18 of that year.
Judge Roxana Sierra signed the alleged release orders for Marco
Antonio, Rony, and Orlando at 11 a.m. on September 16, 1995.
9. According to
the petitioners, on September 17, 1995, that is, the day after the
alleged releases, Marco Antonio Servellón was murdered in the community
of "El Lolo", at the side of the old North Road.
On the same day, the lifeless bodies were also found of Rony
Alexis Bentancourt, 50 meters from the bridge of the main road through
the community of Nueva Suyapa; of Orlando Alvarez Ríos, at kilometer 41
of the North Road; and of Diómedes García, between kilometers 8 and 9
of the road to the Department of Olancho. The petitioners allege that the persons responsible are
police officials David Abraham Mendoza, Marco Tulio Regalado, Alberto
José Alfaro Martínez, Hugo Antonio Vivas, and José Antonio Martínez
Arrazola; as well as police judge Roxana Sierra.
The locations of the bodies led this to be known as the Cuatro
Puntos Cardinales [Cardinal Points] case.
10. The petitioners
say that, according to the autopsy, the deaths occurred between 3 a.m.
and 6 a.m. on September 17, 1995, and that there is a similar pattern or
modus operandi, which indicates the same perpetrator or perpetrators.
All of the victims were clandestinely held during their arbitrary
detention; all were threatened with death by members of the police prior
to their detention; and all were murdered with the same firearm in the
space of a few hours.
On March 5, 1996, the father of one of the victims, Mr.
Betancourt, filed a criminal accusation with the First Lower Court for
Criminal Matters. On May 6,
the Office of the Special Prosecutor for Human Rights of the Attorney
General's Office applied for arrest warrants for several FUSEP agents
and for police judge Roxana Sierra on the charges of murder, abuse of
authority, violation of duties of public employees, and illegal
detention to the detriment of the public administration.
The petitioners allege that even though the court file contained
sufficient evidence against the accused, including expert opinions from
the Coroner's Office at the Attorney General's Office, judicial
inspections, and statements from witnesses, the First Lower Court for
Criminal Matters refused the application for arrest warrants "for
The Court also rejected the motion for the reversal of its
decision presented by Mr. Betancourt, the father of one of the victims,
and by the Office of the Special Prosecutor for Human Rights.
On August 6, 1996, the First Court of Appeals upheld the lower
After an appeal was denied, in a new effort to obtain justice the
Office of the Special Prosecutor continued to seek remedies, which, to
this day, more than six years after the murders, have failed to lead to
the identification and prosecution of the culprits.
13. In light of the
foregoing, the petitioners request that the instant petition be declared
admissible based on the exceptions provided at Article 46(2) (a) and (c)
of the Convention, on the grounds that there has been an unwarranted
delay in administration of justice and that the domestic remedies
available to the victims were not effective.
State expressly invoked the objection of failure to exhaust
remedies under domestic law in accordance with
Article 46(1)(a) and said that those remedies were still being
processed. The State also
referred to the proceedings conducted in 1995 and 1996,
to which the petitioners had already referred in their petition,
although it said that the accusation filed with the First Lower
Court for Criminal Matters against the agents
of the National Police, the police judge, and the public administration
was presented by the Office of the Special Prosecutor for Human
Rights on September 17, 1995.
It also stated that the arrest warrants for the accused were
requested by that office on August 6, 1996, and that on the same day the
judge presiding over the case denied the request for insufficient
Honduran State also provided information on a number of new measures
adopted and on others that were pending.
The State concurred with the petitioners that the deaths of the
alleged victims constituted homicide; that they were interrelated
because they were caused by the same 38SPL caliber firearm or firearms;
Office of the Prosecutor for Human Rights
appealed the decision and that First Court of Appeals upheld that
16. The State also
mentioned that the Office of the Special Prosecutor for Human Rights
will spare no effort to strengthen the evidence to hand and apply again
for the respective arrest warrants for all those who might be
responsible for the deeds with which they are charged.
loci, ratione personae, ratione temporis and ratione materiae
of the Commission.
17. The Commission
has ratione loci competence to
take up this petition because it claims violations of rights protected
in the American Convention that allegedly took place in the territory of
a state party to that treaty.
18. The Commission
has ratione personae competence
by virtue of standing to be sued, since the petition is lodged against a state party, in accordance
with the generic provisions contained
in Articles 44 and 45 of the Convention.
This competence arises from the very nature of the inter-American
system of protection of human rights, under which states parties
undertake to respect and ensure the rights and freedoms recognized in
the Convention (Article 1).
19. The Commission
has ratione personae competence
because of the standing to sue of the petitioners in the instant case,
in accordance with Article 44 of the Convention, which provides that
"any nongovernmental entity legally recognized in one or more
member states of the Organization, may lodge petitions with the
Commission containing denunciations or complaints of violation of this
Convention by a State Party," to the detriment of one or more
20. The Commission
has ratione temporis
competence inasmuch as the events alleged in the petition occurred when
the duty to respect and ensure the rights recognized in the Convention
was in force for the Honduran State, which ratified it on September 8,
21. Finally, the
Commission has ratione materiae competence because the petition alleges violation
of Articles 1(1) (general duty to ensure rights); 5 (right to humane
treatment); 7 (right to personal liberty); 19 (rights of the child); 8.1
(right to a fair trial), and 25 (right to judicial protection) of the
Other admissibility requirements for the petition
Exhaustion of domestic remedies
22. Article 46(1)
of the American Convention on Human Rights provides that admission by
the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the requirement “that the
remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.”
The petitioners request that the exceptions contained in Article 46(2)
of the Convention be applied because the investigation that the State
should have initiated ex officio, in order to clarify the murders that
are the subject matter of the petition, as well as to prosecute and
punish those responsible, has been unreasonably delayed, has not been
effective, and has left these crimes completely unpunished.
24. Article 46(2),
invoked by the petitioners, provides that the rules on prior exhaustion
of domestic remedies and on timeliness of the petition are not
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;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
The Honduran State invoked the objection of non-exhaustion of
domestic remedies in its reply to the petition and asserted that it is
not admissible in accordance with Article 46(1) of the Convention. The
petitioners, however, say that almost seven years have elapsed since the
events occurred, without the remedies available to them having been
capable of identifying, prosecuting, and punishing those responsible.
They also say that the trial is still at the preliminary enquiry
stage, even though Article 174 of the Honduran Code of Criminal
Procedures establishes a limit of 30 days for the preliminary enquiry.
Based on the foregoing, they ask that the petition be found
admissible in accordance with the exceptions provided at Article 46(2)
of the Convention.
The Commission has repeatedly found that it is not enough for the
State to assert non-exhaustion of domestic remedies for that objection
to succeed. As the Inter-American Court of Human Rights has ruled, the
State invoking this objection must also identify the domestic remedies
that remain to be exhausted and show their effectiveness in such
circumstances, which Honduras has not done.
In order to provide an adequate remedy for the alleged
violations, which constitute crimes against public order, it was
incumbent on the State, particularly in light of its obligation to take
punitive action, to institute, ex officio, proceedings to identify,
prosecute, and punish all those responsible, diligently pursuing every
stage of the proceedings to a conclusion. In the opinion of the
Commission, the seven years elapsed between the events and the date of
the instant report has been more than enough for the Honduran State to
determine responsibilities, initiate proceedings, and punish those
responsible in the domestic sphere.
The Inter-American Court and the IACHR have repeatedly found that
the general rule of prior exhaustion of domestic remedies recognizes the
right of the State “to resolve the problem under its internal law
before being confronted with an international proceeding,”
in this case, in the international jurisdiction of human rights, which
“reinforces or complements” the domestic jurisdiction.
This general rule not only recognizes the above-cited right of
the State, but imposes on it the duty to provide the persons under its
jurisdiction with remedies that are suitable to address the infringement
of a legal right and capable of producing the result for which they were
designed. If the remedies
offered by the State do not meet these requirements it is fitting to
apply the exceptions contained in Article 46(2) of the Convention, which
have been established with the aim of guaranteeing international action
when remedies under domestic law and the domestic judicial system are
not expeditious and capable of ensuring respect for the human rights of
The Commission finds that in this case the domestic remedies have
not been capable of redressing the infringement of a legal right, for
which reason the exception provided in Article 46(2) (a) of the
Convention applies. Also
applicable is the exception established in section (c) of the same
provision because there has been an unwarranted delay in rendering a
decision under the domestic remedies, which eliminates any reasonable
possibility of obtaining the remedy or result for which they were
designed. This unwarranted delay of justice is incompatible with the
obligation of the State to place suitable and effective remedies at the
disposal of the persons under its jurisdiction.
In this context, the Commission reiterates that the rule of
exhaustion of domestic remedies should not be understood to require
mechanical attempts at formal procedures, and that if there is
unwarranted delay in the proceedings under domestic remedies, it may be
deduced that those remedies lack the possibility of producing the remedy
or result for which they were designed.
Accordingly, the right of the State to allege that a petition is
not admissible due to non-exhaustion of remedies under domestic law
cannot be grounds to halt or delay indefinitely an international action
in support of the defenseless victim.
Indeed, the lawmaker sought to prevent such a situation by
establishing the exceptions to this rule contained in Article 46(2) of
the Convention, the result of which is to remove the need to meet that
The Commission finds that, as a general rule, a criminal
investigation should be carried out promptly to protect the interests of
the victims and to preserve evidence, and that, in this case, the time
elapsed without an effective investigation, prosecution, and punishment
of all those responsible, constitutes unwarranted delay and is an
indication of the scant probability of the effectiveness of this remedy,
remedy which proves illusory because of the general conditions
prevailing in the country, or even in the particular circumstances of a
given case, cannot be considered effective …… as when there is an
unjustified delay in the decision.
The Commission considers it important to clarify that the
exceptions to the rule of exhaustion of domestic remedies are closely
associated with examination of the existence of possible violations of
certain rights enshrined in the Convention, such as the right to a fair
trial (Article 8) and the right to judicial protection (Article 25).
However, Article 46(2), which establishes three exceptions to that
general rule, by its nature and purpose, is a self-contained provision vis á vis the substantive provisions contained in the Convention
and, therefore, depends on a different standard of appreciation to that
used to establish whether or not there has been a violation of the
substantive rights set down in Articles 8 and 25 of that international
instrument. Therefore, the Commission resolves in this report the
applicability of the aforesaid exceptions as a matter for a special
decision rendered in advance. The reasons why domestic remedies were not
exhausted and the legal effect of their non-exhaustion will be examined
when the Commission studies the merits of the case in order to determine
whether or not Articles 8 and 25 have been violated.
In light of the foregoing, the Commission finds that the domestic
remedies have been ineffective, which has led to denial and unwarranted
delay of justice. Consequently the Commission concludes that the petition sub
judice is admissible by reason of the exceptions provided at Article
42(2)(a) and (c) of the American Convention and exempts the petitioners
from exhaustion of the remedies under domestic law.
Timeliness of the petition
Since the instant petition is covered by the exceptions provided
in Article 46(2)(c) of the Convention, the IACHR concludes that the
requirements contained in Article 46(1)(b) of same are not applicable.
Duplication of proceedings and res
35. The record in
the instant case contains no information whatever that might lead to the
conclusion that this matter might be pending in another international
proceeding for settlement, or that it has been previously decided by the
Inter-American Commission. Accordingly,
the IACHR concludes that the exceptions provided in Article 46(1)(d) and
in Article 47(d) of the American Convention do not apply.
Nature of the alleged violations
The IACHR finds that the alleged violations, if proven, could
establish violations of the rights recognized in Articles 4, 5, 7, 8,
19, and 25 of the American Convention.
The Inter-American Commission concludes that it is competent to
examine the merits of this case and that the petition is admissible in
accordance with Article 46(2)(a) and (b) of the American Convention.
Based on the factual and legal arguments given above and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case admissible as regards the alleged
violations of rights protected in Articles 4, 5, 7, 8, 19, and 25 of the
To notify the parties of this decision.
To continue with its analysis of the merits of the case; and
To publish this decision and to include it in its Annual Report
to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in Washington, D.C., on this the 27th
day of February 2002. Signed: Juan Méndez, President; Marta Altolaguirre, First
Vice President; José Zalaquett, Second Vice President; Robert K.
Goldman, Julio Prado Vallejo, and Clare K. Roberts, Commission members.
Article 39 of the Rules of Procedure of the IACHR:
The facts alleged in the petition, the pertinent parts of
which have been transmitted to the State in question, shall be
presumed to be true if the State has not provided responsive
information during the maximum period set by the Commission under
the provisions of Article 38 of these Rules of Procedure, as long as
other evidence does not lead to a different conclusion.
In this connection, the petitioners say that:
State of Honduras has ignored the request for information by the
Inter-American Commission and has not presented any well-founded
request that might justify its silence.
Thus far, it has not offered an opinion on the allegations,
and, therefore, we ask the Honorable Commission to presume the facts
alleged to be true, in accordance with Article 39 of its Rules of
of the petitioners of June 12, 2001, p.1.
The petitioners clarify that it is no longer called CORE 7, but
Metropolitan Headquarters [Jefatura
Metropolitana] Nº 1.
As the court file shows at p. 42 et seq. criminal accusation against officials of the Police of
Honduras, Marco Tulio Regalado Hernández, Alberto José Alfaro,
Hugo Antonio Vivas, and José Antonio Martínez Arrazola; and
against Ms. Roxana Sierra Ramírez filed with the First Lower Court
for Criminal Matters by attorney Mercedes Suyapa Vásquez Coello,
Assistant Prosecutor of the Office of the Special Prosecutor for
Human Rights under the supervision of the Attorney General's Office.
(Appendix 1 of the petition of October 11, 2000).
See petition of October 11, 2000,
According to the opinion of the ballistics expert at the Criminal
Investigation Directorate the projectiles removed from the victims'
corpses "were fired by the same firearm:
a 38SPL revolver." (Appendix 1 of the complaint).
See procedural ruling at page 288 (Appendix 1).
See pp.289 and 292 (Appendix 1).
See pp.298 and 299 (Appendix 1).
The State provided information on the following proceedings
conducted between 1995 and 1996: Formal accusation presented by the
Office of the Special Prosecutor for Human Rights on September 17,
1995; performance of autopsies; taking of statements from witnesses;
inspections of the Offices of Regional Command Nº 7; application
for arrest warrants for the accused (this application was denied;
therefore the Office of the Special Prosecutor in charge of the case
appealed the decision) (See Report of the State of September 10,
See original petition brief of October 11, 2000.
The State informed that it has requested the criminology
laboratories at the Attorney General's Office for the ballistics
report on the case to determine if there is any link with other
Efforts continue to locate other youths who are thought might
know about other crimes that occurred in similar circumstances. (See
Reply of the State of September 10, 2001).
Inter-Am. Ct. H.R., Castillo Páez Case, Preliminary Objections,
Judgment of January 30, 1996, Series C. No. 24, para. 41.
Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988. Series C., No. 4, para. 61.
Inter-Am. Ct. H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988. Series C., No. 4, para. 61.
Inter-Am. Ct. H.R., Judicial Guarantees in States of Emergency,
Advisory Opinion OC-9/87 of October 6, 1987, (Ser. A) No. 9 (1987)
See IACHR, Report 54/01, Case 12.250, Massacre of Mapiripán,
Colombia, para. 38; and IACHR, Juan Humberto Sánchez- Honduras,
Report 65/01, Case 11.073, March 6, 2001, para. 51.