...CONTINUATION OF REPORT No. 80/07 MARTÍN PELICÓ COXIC - GUATEMALA (MERITS-PUBLICATION

         120.     The Inter-American Court has established that the existence of a pattern of extrajudicial executions generates a climate incompatible with the effective protection of the right to life.
 

[W]hen there is a pattern of extrajudicial executions tolerated and fostered by the state, this generates a climate which is incompatible with the effective protection of the right to life.  As this Court has stated, the right to life plays a fundamental role in the American Convention, since it is the essential corollary to the exercise of the other rights.  When the right to life is not respected, all rights become meaningless. States have the obligation to guarantee that the conditions required to ensure that violations of this inalienable right do not occur prevail, and, in particular, they have the duty to prevent their agents from violating that right.  Compliance with Article 4, as related to Article 1.1 of the American Convention, not only presupposes that no persons are to be deprived of their life arbitrarily (negative obligation), but it also requires states to adopt appropriate measures to protect and preserve the right to life (positive obligation), as part of its duty to ensure the full and free exercise of the rights of all persons under its jurisdiction.  This active protection of the right to life on the part of the state not only involves its legislators, but all state institutions, and all persons responsible for ensuring security, whether it be the police force or the armed forces.  Consequently, states must take the necessary steps not only to prevent and punish deprival of life as a consequence of a criminal act, but also to prevent arbitrary executions on the part of their own security forces.[56][57]

121.     With regard to cases of human rights violations committed in the context of state practices and tolerated by it, the Inter-American Court has found that:

[I]f it is demonstrated in this specific case that it is part of the pattern of extrajudicial executions, it is reasonable to assume and conclude that the state has international liability.[58]

122.     The death of Martín Pelicó Coxic perpetrated by state agents is part of the pattern of serious human rights violations that occurred at that time.  This pattern of extrajudicial executions tolerated and even promoted by the state generated a climate that was incompatible with the effective protection of the right to life.

States have the obligation to guarantee that the conditions required to ensure that violations of this inalienable right do not occur prevail, and, in particular, they have the duty to prevent their agents from violating that right.  Compliance with Article 4, as related to Article 1.1 of the American Convention, not only presupposes that no persons are to be deprived of their life arbitrarily (negative obligation), but it also requires states to adopt appropriate measures to protect and preserve the right to life (positive obligation), as part of its duty to ensure the full and free exercise of the rights of all persons under its jurisdiction.  This active protection of the right to life on the part of the state not only involves its legislators, but all state institutions, and all persons responsible for ensuring security, whether it be the police force or the armed forces.  Consequently, states must take the necessary steps not only to prevent and punish deprival of life as a consequence of a criminal act, but also to prevent arbitrary executions on the part of their own security forces.[59]

123.     Article 4 of the American Convention, taken together with its Article 1(1), imposes the positive obligation on states to adopt appropriate measures to protect, preserve, investigate, and punish violations of the right to life.  However, in the case in point, the state failed to comply with its obligation to conduct a serious and impartial investigation, because it did not engage in the necessary investigative procedures, it omitted evidence, and it did not exhaust all the statements of witnesses that would have been critical to the investigation.

124.     The European Court of Human Rights has indicated that safeguarding the right to life implicitly requires a type of effective, official investigation whenever persons die as a result of the use of force by state agents.  On this point, it has stated:  “[t]he general prohibition applied to state agents to refrain from arbitrarily depriving an individual of his life […] would be ineffective, in practice, if there were no procedure whereby the legality of the use of lethal force on the part of said authorities could be reviewed.  According to the obligation regarding protection of the right to life, taken together with the general obligation […] of the state […] to ‘ensure that all individuals under its jurisdiction enjoy the rights and freedoms in the Convention,’ an effective official investigation must be conducted whenever an individual has died as the result of the use of force.”[60]

125.     In this case, the state violated both the negative obligation entailed in the fundamental human right to life, and its positive obligation.  In fact, at the time the events occurred, CERJ members were the victim of various forms of persecution, including threats, harassment, torture, and extrajudicial executions.  As a result of these circumstances, there was a substantial number of complaints to which the state had the duty to respond by ensuring effective investigations, court proceedings, and punishments.  However, the responsible state agents were seldom investigated or convicted, giving rise to de facto impunity which permitted and even encouraged these violations against CERJ members to continue.

3.         Acceptance of institutional responsibility by the Guatemalan State

126.     On December 2, 2002, the Guatemalan State accepted the institutional responsibility it had incurred by failing to guarantee the physical security of Martín Pelicó Coxic.

The government of the Republic of Guatemala accepts the institutional responsibility incumbent on it for failing to have guaranteed the physical security of Martín Pelicó Coxic, and at the same time it regrets his disappearance (sic) seven years ago and that it has not been clarified, despite the official investigation opened in this case.[61]

127.     The recognition by the Guatemalan Government on December 2, 2002, of the state’s institutional responsibility for failure to comply with the obligations imposed by Article 4 of the Convention, to the detriment of Martín Pelicó Coxic, has full legal force, in accordance with the principles of international law,[62] and obligates it to provide for effective reparations with respect to the violations committed under the mandate of the American Convention.

128.     The Commission notes that the declaration of recognition of institutional responsibility also includes acceptance of the facts of the case by the state, in what is technically understood as tacit agreement to the factual aspects of the petition.  These facts have, moreover, been duly and sufficiently established by various evidentiary methods, testimony, and supporting documents, which were gathered during the processing of this case by the Commission.

129.     However, despite the state’s recognition of institutional responsibility in 2002, the Commission notes that it has not fulfilled the obligation to make reparations to the family members of the victim, nor has it complied with its duties to investigate, bring to trial, and punish the parties guilty of the extrajudicial execution of Martín Pelicó Coxic. In addition, the Commission notes that the international responsibility of the state is not limited to guaranteeing the physical security of the victim.

130.     On these grounds, the Commission concludes that the State of Guatemala violated the right to life established in Article 4 of the American Convention, to the detriment of Martín Pelicó Coxic and his next of kin, by virtue of the extrajudicial execution committed by state agents on June 27, 1995 against Mr. Pelicó, which was carried out as part of a pattern of extrajudicial executions committed against members of the Council of Runujel Junam Ethnic Communities (CERJ).

B.         Right to humane treatment

131.     As stated earlier, on June 27, 1995, Martín Pelicó was found by his spouse a few meters from his house, in the throes of death, and died a few moments later.

132.     The Commission believes that the conditions in which Martín Pelicó was found allow one to infer that he was subjected to various types of torture,[63] according to the information taken from the forensic medical autopsy report, which included the following:

External examination: constitution: robust; Discoloration on the back of the body; Bluish area around the mouth. Wounds: a) Three lacerations in the area of the ribs and left hypochondriac. b) Contusion in the occipital region of the scalp. c) Ten stab or puncture wounds penetrating to the bone, from which particles of the brain were coming out, wounds of 1 millimeter in diameter.

Internal examination:: Skull: Parietal and occipital bones with multiple perforations (10); Hemorrhaging and attrition of the brain.  Thorax: Thick layer of fat in the thorax. Normal ribs. Lungs congested, swollen, increased in size, and when pressed, a large amount of water came out of the nose and mouth, and the bronchial tubes, after they were cut.  Abdomen: stomach: slight alcohol content. Generalized abdominal and visceral congestion.

CONCLUSIONS: a) Attrition of both cerebral hemispheres. b) Signs of asphyxiation. c) Fractures of the bones of the skull. d) Multiple puncture wounds to the skull.

CAUSE OF DEATH: 1) Cerebral attrition. 2) Asphyxiation by aspiration of water; 3) Skull fractures;  4) Puncture wounds to the skull.

Crossed out. INTERNAL EXAMINATION: OMIT.[64]

133.     The marks of violence found on the body of Martín Pelicó were typical of the pattern of extrajudicial executions at the time his murder occurred, and are evidence of the intent to cause suffering and fear to the victim, who was at the mercy of his murderers.

134.     Article 5(1) and (2) of the Convention state: 

1. Every person has the right to have his physical, mental, and moral integrity respected.
 

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.  All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

135.     The Inter-American Court has maintained in this regard:

[T]he violation of the physical and mental integrity of persons is a type of violation that has various connotations and degrees, and that covers everything from torture to other types of taunting or cruel, inhuman or degrading treatment, whose physical and mental consequences vary in intensity depending on endogenous and exogenous factors (…) The degradation is expressed in feelings of fear, anxiety, and inferiority, for the purpose of humiliating, degrading, and breaking the physical and moral resistance of the victim.”[65]

136.     Turning to the physical and mental integrity of the next of kin of victims of human rights violations, the Court has had the following to say:

 [T]he next of kin of victims of human rights violations may be victims in turn.[66]

137.     As stated by the petitioners, the spouse of Martín Pelicó Coxic, Rosario Hernández Grave, not only experienced suffering at the loss of her husband, but she also suffered impotence in view of the impunity of the murderers.  This feeling of impotence was exacerbated when she was the victim of threats and acts of intimidation.  The documents submitted to the IACHR show that at the time that Mrs. Rosario reported the death of her husband, she refused to sign the report, for fear of retaliation. [67]

138.     The Commission notes in this regard that it has been established in this case that the members of the patrols and the military agents in San Pedro de Jocopilas at the time of Mr. Pelicó’s death exercised power there arbitrarily and violently, a situation that terrorized the families, witnesses, and victims of human rights violations, and inhibited them from reporting illicit acts committed by the agents and patrol members.  At the same time, the Commission appreciates the action taken by the widow of Mr. Pelicó, and by the witnesses and attorneys for the prosecution who, despite threats and harassment, continued to report the extrajudicial execution of Martín Pelicó.

            139.     In the present case, the violation of the right to mental and moral integrity [humane treatment] of the family of Martín Pelicó Coxic is a direct consequence of his illegal and arbitrary execution on June 27, 1995, which occurred by means of torture committed with extreme cruelty against the victim, who was then flung in the throes of death close to his home, where his spouse and small children were at the time.  It is also a consequence of the uncertainty of not knowing the whereabouts of Mr. Pelicó after he had to leave with a known military patrol agent, of the marks of extreme violence on the victim’s body, the threats and harassment received by the spouse and father of the victim by state agents, and the lack of an investigation and the failure to punish the persons responsible for these acts.  All of this has caused his immediate family members to experience suffering, anguish, insecurity, frustration, and impotence vis-à-vis the state authorities.  For this reason, the next of kin should be regarded as victims of cruel, inhuman, and degrading treatment.

140      As a result of the foregoing, the Commission considers that the State of Guatemala violated Article 5(1)(2) of the American Convention, to the detriment of Martín Pelicó Coxic and his next of kin.

C.        Right to a fair trial, judicial protection, and the duty to investigate, prosecute, and punish

141.     According to the jurisprudence of the Inter-American Court of Human Rights, any person affected by a human rights violation is entitled to seek clarification of the acts causing the violation from the competent state agencies and to determine the liable parties, through an investigation and judgment as stipulated in Articles 8 and 25 of the Convention.[68]

142.     Article 25 of the Convention establishes that:

1.         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, even though such violation may have been committed by persons acting in the course of their official duties.

2.         The States Parties undertake:

a.         to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b.         to develop the possibilities of judicial remedy; and

c.         to ensure that the competent authorities shall enforce such remedies when granted.

143.     Article 8(1) of the Convention stipulates as follows on the subject: 

1.         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.

144.     The protection offered by the provisions transcribed above is reinforced by the general obligation to respect human rights imposed in Article 1(1) of the Convention.  The Court has specifically determined as follows in this regard:

Article 25, taken together with Article 1.1 of the American Convention, requires the state to guarantee everyone access to the administration of justice, and especially prompt and simple recourse in order to ensure, among other results, that the parties responsible for the human rights violations are judged and reparations are obtained for the damages suffered… [A]rticle 25 “is one of the basic pillars of both the American Convention and the very rule of law in a democratic society…”.  This article is directly related to Article 8.1 … which establishes the right of every person to be heard with due guarantees … to determine their rights of any kind.[69]

145.     Consequently, the states parties have the obligation to take whatever steps are required to ensure that nobody is deprived of judicial protection and of the possibility of exercising the right to a simple and effective remedy.[70]  In this context, the state has the obligation to investigate human rights violations, to judge the responsible parties, to compensate the victims, and to prevent impunity.

146.     The Inter-American Court has interpreted this provision to mean that the states parties to the American Convention are required to provide effective judicial remedies to victims of human rights violations.[71]  These remedies must be substantiated in accordance with the rules of due legal process (Article 8(1)), 1)), and all of this is part of the general obligation of the States Parties to guarantee the free and full exercise of the rights recognized for persons under the jurisdiction of said Article 1(1).  In addition, Article 25(1) of the American Convention incorporates the principle of effectiveness or efficacy of the procedural instruments or measures designed to guarantee the rights protected by it.  Therefore, the nonexistence of effective domestic remedies leave victims of human rights violations in a defenseless situation and justifies international protection.

147.     Moreover, the Inter-American Court has ruled that the obligation to investigate and to punish any violation of the rights recognized in the Convention is derived from Article 1(1) of the Convention, as a means for guaranteeing those rights.[72]

148.     The Commission has maintained that a basic purpose of any criminal proceeding is to clarify the truth of the act under investigation.  The judicial investigation should be undertaken diligently and in good faith, and it should be exhaustive, impartial, and directed to exploring all possible lines of investigation so as to identify the authors of the crime, so that they can be subsequently tried and punished.[73]  In specific cases, that obligation is related to the right to be heard in a court of law and the right to a prompt, effective remedy, as established in Articles 8 and 25 of the Convention.

149.     As for the scope of the powers of the organs of the system to control the judicial proceedings of states, the Inter-American Court has stated that in order to establish whether a state has violated its international obligations by virtue of the procedures of its judicial organs, the relevant domestic processes may have to be examined as a whole, including the decisions of the appellate courts.  This, on the understanding that the function of an international court is to determine whether the procedures in their entirety, and the way in which the evidence was produced, were fair.[74]

150.     In the present case, the Commission found that in the course of the criminal proceedings, the judicial authorities engaged in a series of irregularities, which not only affected the right to a fair trial, as guaranteed in Article 8 of the American Convention, but also ensured impunity for the perpetrators, to the detriment of the provisions of Articles 25 and 1(1) of the Convention.

151.     As a rule, a criminal investigation must be conducted promptly, to protect the interests of the victims, preserve the evidence, and even to safeguard the rights of all persons regarded as suspects in the investigation.[75] 

152.     An investigation must be undertaken seriously, and not as a simple formality doomed in advance to be futile.

[The investigation] must have a meaning and must be undertaken by the state as its own legal duty, and not as a simple act on behalf of private interests, relying on the procedural initiative of the victim or his next of kin, or on the private contribution of elements of proof, without an effective effort by the public authority to seek the truth.  This is true no matter who the agent to whom the violation may be attributed may be.”[76]

153.     The “Principles pertaining to effective prevention and investigation of extralegal, arbitrary, or summary executions,”[77] of the United Nations contain the following provisions:

An exhaustive, immediate, and impartial investigation shall be conducted in all cases in which there is a suspicion of extralegal, arbitrary, or summary executions, including those cases in which complaints from relatives or other reliable reports lead one to believe that there was a death resulting from unnatural causes in the circumstances referred to.  Governments shall maintain institutions and investigative procedures to carry out these inquiries.  The objective of the investigation shall be to determine the cause, manner, and time of death, the responsible party, and the procedure or practice that might have provoked it.  During the investigation, an adequate autopsy shall be performed and all the material and documentary evidence shall be compiled and analyzed, and statements shall be taken from witnesses.  The investigation shall distinguish between death by natural causes, death by accident, suicide, and homicide.

            154.     In addition, the United Nations “Manual on Effective Prevention and Investigation of Extralegal, Arbitrary, or Summary Executions,”[78] reiterates that the gathering and analysis of evidence are essential to an effective investigation of extrajudicial executions, with the first step being the recovery or preservation of all physical evidence, by means of an investigation of the scene of the crime.[79]  The Model Protocol for the Investigation of Extrajudicial, Arbitrary, or Summary Executions of the United Nations stresses the fact that to meet the general objective of an investigation during the discovery period, the officials in charge of the investigation have the duty to “recover and preserve evidence related to the death, in order to assist in any effort to prosecute the responsible parties.[80]  This Protocol also stipulates that in the investigation of the evidence, it “must be gathered, analyzed, packaged, labeled, and stored appropriately in a secure place to prevent it from being contaminated or lost.”[81]

            155.     According to the information in the case files, forensic procedures to determine the cause of death of Martín Pelicó Coxic were confined to a description of the wounds on his body.  However, there was no examination of possible elements left by third parties, prints or traces, hair, etc., which could have been left on the victim’s body and would have made it possible to find evidence pertaining to the persons responsible for the murder.  Moreover, according to the case records, there were no photographs taken of the body, and the autopsy did not determine elements such as the characteristics of the sharp weapon that might have been used to cause the wounds, and it did not refer to the intensity of the blows received.

            156.     Furthermore, it appears from the information in the criminal records reviewed by the Commission that the courts did not order the relevant security agencies to conduct the necessary investigations in this type of case, such as searches for the purpose of detaining the perpetrators or of seeking evidence.

157.     The Commission considers that in the present case, the Guatemalan authorities flagrantly disregarded the fundamental principles that should guide investigations of extrajudicial executions.  In fact, in the opinion of the Commission, the State of Guatemala violated the principles of meticulousness and timeliness, especially with regard to preservation of the elements of proof and the promptness of procedures and practices involving the evidence.  In summary, during the investigative stage, the Guatemalan authorities did not take the necessary steps to determine clearly the identity of the persons responsible for the death of Martín Pelicó Coxic.

158.     As regards the production and evaluation of the evidence, the investigative procedures during judicial proceedings were limited to drawing up a post mortem certificate, conducting a relatively superficial autopsy, and receiving a series of statements from the accused and witnesses.  As far as the witnesses are concerned, it is obvious that there is a contradiction between what was said by the witnesses for the prosecution and what was said by the witnesses for the defense.  However, the lower court which received the testimony did not carry out the necessary procedures to elucidate these contradictions.

159.     In the course of the processing of this case by the Commission, the state never objected to the conclusions of the petitioners regarding these irregularities.  Instead, it limited its observations to pointing out that domestic legislation contained provisions regulating due process for the protection of the rights the petitioners considered to be violated.

160.     With regard to the arrest warrants pending against Pedro Acabal Chaperón and Juan Chivalán Xam, the state has indicated that the impossibility in some cases of apprehending the presumed perpetrators of crimes is not a phenomenon exclusive to Guatemala, and that in this case, the accused were subject to preventive detention.  However, by virtue of a judicial decision, they were released.  This decision was subsequently amended by the pertinent Court of Appeals, but by the time the higher court’s decision took effect, the accused could not be caught.  On this point, the state has insisted that the arrest warrants are pending, and that the security forces are pursuing various steps to apprehend Pedro Acabal Chaperón and Juan Chivalán Xam.  The petitioners, however, have reported to the Commission that both Pedro Acabal Chaperón and Juan Chivalán Xam have been seen in San Pedro de Jocopilas with a certain frequency.

161.     In this regard, the Commission considers that the irregularities described earlier are clear evidence of the failure to comply with the laws governing a fair trial in a domestic system, and the failure to use due diligence, in accordance with the provisions of the American Convention.  In the opinion of the Commission, it is evident that the judicial authorities failed to take the necessary steps to ensure that due diligence would be exercised in order to obtain all the necessary information.  On the contrary, they did not order the fundamental procedures that would have made it possible to obtain definitive elements of proof to determine the motive of the murder and to evaluate the witnesses efficiently, or to gather the basic information on the participation and investigative activities of the different state security agencies and the results of those activities.

162.     The Commission does not consider it appropriate to analyze whether one of the persons charged in the criminal proceeding should or should not have been acquitted.[82]  What is apparent in the opinion of the Commission is that in this case, the persons responsible for the extrajudicial execution of Martín Pelicó Coxic acted with impunity, as the material and intellectual authors of the execution have not been judged and punished, and the judicial proceedings carried out by the state to clarify the responsibility of the perpetrators of the extrajudicial execution of Martín Pelicó do not meet the requirements of a fair trial and due judicial protection established in the American Convention.

163.     Finally, the Commission is of the view that the acts of intimidation, harassment, threats, and other acts of violence against persons working in the justice system, witnesses, and members of the victim’s family constitute a determining factor in guaranteeing this impunity.  In fact, nobody has been either identified or criminally punished by the judicial authorities as the author of these acts.

“And I also fear for my life, because I am a witness, they have threatened me because during the week of July three to seven, men who were members of the patrols in San Pedro canton came and there was a lot of noise outside in the night, and the next day a boy found a bullet shot near an[aguacaral that I have at my house, and I am afraid because these men are the bullies of the town and they could not care less about killing people, and they have done that and they were even implicated in the death of Carpio.”[83]

            164.     The Commission concludes, based on the arguments given above, that the state has failed to comply with its obligation to judge and punish the perpetrators of the extrajudicial execution of Martín Pelicó Coxix, in accordance with the standards established in Articles 8(1) and 25 of the American Convention, and with its duty to ensure the fulfillment of its obligations pursuant to Article 1(1) of this instrument.

165.     Consequently, the Commission concludes that the State of Guatemala has violated Articles 8, 25, and 1(1) of the American Convention, to the detriment of Martín Pelicó Coxic and his next of kin.  Moreover, the State of Guatemala has violated Articles 8, 25, and 1(1) of the Convention to the detriment of Mrs. Rosario Hernández Grave and Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi, for acts of harassment and threats to them during the judicial investigation carried out in conjunction with the extrajudicial execution of Martín Pelicó Coxic. In fact, nobody has been identified or punished criminally by the judicial authorities as the author of these acts.

D.         The obligation of the state to respect and guarantee individual rights

166.     Based on the foregoing analysis, it is clear that the Guatemalan State has failed to comply with its obligation to respect the rights of the persons under its jurisdiction, as specified in Article 1(1) of the Convention, as it has violated the rights established in Articles 4, 5, 8, and 25 of the Convention, to the detriment of Martín Pelicó Coxic and his next of kin, and Articles 5, 8, and 25 of that instrument, to the detriment of Mrs. Rosario Hernández Grave and Messrs. Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi.

167.     As the Court has found, “Pursuant to Article 1(1), any type of exercise of public authority that violates the rights recognized by the Convention is illicit.  In this sense, no matter what the circumstances in which a state organ or official, or a public institution unduly harms one of these rights , it is presumed to be in noncompliance with the duty to respect such rights established in that Article.”[84]

168.     The second obligation stipulated in Article 1(1) is the obligation to ensure the free and full exercise of the rights and freedoms recognized in the Convention.  The Commission concludes that on violating the right to effective judicial protection, to the detriment of the victim, the Guatemalan State failed to comply with the obligation to ensure the free and full exercise of the rights of all persons under its jurisdiction.

VII.              CONCLUSIONS

169.     Based on the considerations of fact and law contained in this report, the Commission concludes that the State of Guatemala is responsible for violating the human rights to life, humane treatment, a fair trial, and judicial protection, in accordance with Articles 4, 5, 8, and 25 of the American Convention, taken together with Article 1(1) of that instrument, as a result of the acts which occurred on June 25, 1995 and the consequent impunity, to the detriment of Martín Pelicó Coxic and his next of kin.

170.     Further, the State of Guatemala is responsible for violating the human rights to humane treatment, a fair trial, and judicial protection, in accordance with Articles 5, 8, and 25 of the American Convention, taken in relation to Article 1(1) of that instrument, as a result of acts of intimidation, harassment, and threats to the detriment of Mrs. Rosario Hernández Grave and Messrs. Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi.

171.     Therefore, the Commission concludes that the State has failed to comply with its obligations to respect the human rights and guarantees imposed by Article 1(1) of the American Convention.
 

VIII.      RECOMMENDATIONS

172.     On the basis of the analysis and the conclusions of this report,

THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS RECOMMENDS TO THE STATE OF GUATEMALA THAT IT DO THE FOLLOWING:

 1.     Conduct a full, impartial, and effective investigation into the acts reported in the petition, in order to prosecute and punish the material and intellectual authors of the human rights violations committed to the detriment of Martín Pelicó Coxic and his next of kin, and to the detriment of Mrs. Rosario Hernández Grave and Messrs. Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi.

2.      Make reparations for the consequences of the violation of the rights indicated.

3. Effectively prevent the resurgence and reorganization of the Civil Self-Defense Patrols.

4. Promote in Guatemala the principles established in the “Declaration on the right and duty of individuals, groups, and institutions to promote and protect the universally recognized human rights and fundamental freedoms” adopted by the United Nations, and take the necessary steps to ensure respect for the freedom of expression of those persons who have taken on the task of advocating fundamental rights, to protect their life and their personal safety.

5. Adopt the necessary measures to prevent similar events from occurring in the future, in accordance with the duty of prevention, and the duty to guarantee the fundamental rights recognized in the American Convention.

173.     The Commission agrees to transmit this report to the State of Guatemala and to grant it a period of two months to comply with the recommendations formulated herein.  These periods will being on the date this report is transmitted to the State.  In addition, the Commission has decided to notify the petitioners of the approval of a report under Article 50 of the Convention.

IX.        PROCEEDINGS FOLLOWING REPORT N° 48/03

174.     On October 8, 2003, during its 118th regular session, the IACHR approved Report N° 48/03, in accordance with article 50 of the American Convention and notified the State of Guatemala of this decision on December 29, 2003, granting it two months to comply with the recommendations set forth in paragraph 172 herein.

175.     On December 29, 2003, the IACHR notified the petitioners of the approval of Report Nº 48/03 and requested that they respond within one month’s time with regard to their position on submitting the case to the Court, the position of the victim, and the grounds for their opinion that the case should be referred to the Court. It likewise requested that they forward, within the same time period, information concerning the victim; the power of attorney confirming their status as representatives of the victim; any available evidence in addition to that submitted during the proceedings before the Commission; information from witnesses and experts that they intend to present to the Court; and their expectations with regard to reparations and legal costs. On January 28, 2004, the petitioners requested an extension of the time allotted, which was granted on February 3, 2004, for a period of 15 days.  In a communication dated February 16, 2004 and received by the IACHR on February 18 of that year, the petitioners expressed their intent to submit the case to the Inter-American Court of Human Rights.

176.     On March 3, 2004 the IACHR received a request from the State for a 30-day extension to report on compliance with the recommendations. On March 8, 2004, the Commission granted the extension requested by the State until March 22, 2004.  On March 24, 2004, the IACHR received another request from the State for an extension of the deadline to comply with the recommendations set forth in Report No. 48/03. On this occasion, the State included its interpretation that, should its request for an extension be granted, the time period for submitting a case to the Court established in article 51.1 of the American Convention would be suspended for three months.  At the same time, the State explicitly waived the right to file any preliminary objections with respect to compliance with the time period set forth in article 51.1 of that instrument. On March 26, 2004, the IACHR notified the State of Guatemala that in a decision adopted on March 25, 2004, it granted the three month extension as requested, counting from March 22, 2004, during which time the period established in article 51.1 of the American Convention for referring case 11.658 to the Inter-American Court would be suspended.

177.     On May 28, 2004, the IACHR received a communication from the State, dated May 27 of that year, declaring its intent to reach a reparations agreement with the victim’s next of kin.  The communication was forwarded to the petitioners on June 3, 2004, with the request that they submit their observations within 7 days. In a note dated June 10, 2004, and received on June 14, 2004, the petitioners expressed their acceptance of the proposal for reparations from the State. The petitioners’ note was forwarded to the State on June 15, 2004, for its observations.

178.     On June 22, 2004, the State requested a three month extension to reach a reparations agreement with the victim’s next of kin. At the same time, the State conveyed its interpretation that, should the extension be granted as requested, the time period for submitting a case to the Court established in article 51.1 of the American Convention would be suspended for three months, and it explicitly waived its right to file preliminary objections with respect to compliance with that time period. On June 24, 2004, the Commission decided to grant the extension as requested.

179.     On August 23, 2004, the petitioners submitted a proposal for reparations and costs to the IACHR, which was duly forwarded to the State on August 26, 2004, with a 15 day period to submit its observations. 

180.     On September 28, 2004, the State requested another three month extension to reach an agreement with the petitioners on compliance with the recommendations. On this occasion, it reiterated its interpretation that, should the extension be granted as requested, the time period for submitting a case to the Court established in article 51.1 of the American Convention would be suspended for three months and explicitly waived its right to file preliminary objections with respect to compliance with that time period. On September 28, 2004, the Commission decided to grant the extension as requested.

181.     On November 22, 2004, the IACHR requested updated information from the parties concerning a possible agreement for compliance with the recommendations.

182.     On November 30, 2004, the State sent a communication concerning compliance with the recommendations from Report Nº 48/03, which was forwarded to the petitioners on December 1, 2004, for their observations.

183.     On December 8, 2004, the IACHR received a response from the petitioners, which was forwarded to the State on December 10, 2004, with a period of five days to submit its observations. The State presented its response on December 16, 2004, which was forwarded to the petitioners on December 20, 2004.

184.     In a communication dated December 17, 2004, and received by the IACHR on December 20, 2004, the State requested that the Commission grant it additional time to continue with the talks and reach a final agreement on compliance with the recommendations.  The State expressed its interpretation that, should the extension be granted, the time period for submitting a case to the Court under article 51.1 of the American Convention would be suspended and explicitly waived the right to present preliminary objections concerning compliance with that time period. For their part, in a communication dated December 21, 2004, and received by the IACHR on December 22, the petitioners expressed their consent to the extension as long as it was for the purpose of carrying out the established recommendations and, to the contrary, requested that the Commission submit the case for the consideration of the Court.

185.     The Commission granted the 3-month extension in the terms requested by the State, counting from December 22, 2004.  On March 17, 2005, the IACHR received from the State a copy of the proposal for compliance with the recommendations, which was forwarded to the petitioners on March 21, 2005, with a request to present their observations within three days.

186.     On March 22, 2005, the State requested that the IACHR grant another extension in order to continue talks with the petitioners and reach a concrete agreement which, if granted, would suspend the time period set forth in 51(1) of the American Convention. At the same time, the State explicitly waived its right to file preliminary objections with respect to the time period set forth in that article. In addition, on March 24, 2005, the petitioners submitted their observations on the proposal and timeline for carrying out the recommendations presented by the State.

187.     On March 28, 2005, the IACHR granted the three month extension, counting from that same date, for the State to comply with the recommendations formulated by the Commission in Report No. 48/03, during which time the time period established for submitting the case to the Court would be suspended. In addition, the Commission requested that during the extension period, the State of Guatemala report to it every three weeks concerning the implementation of the timeline for compliance with the recommendations and asked that it bear in mind the petitioners’ observations concerning the timeline.

188.     On April 21, 2005, the IACHR received from the State a report on compliance with the recommendations, which was forwarded to the petitioners on April 25 with a period of five days in which to respond. On May 3, 2005, the IACHR received the petitioners’ observations, which were forwarded to the State on June 22, 2005, for a five day period.  On that same June 22, information dated June 21, 2005 was received from the State, and this was forwarded to the petitioners on the following June 24, for a five day period.

189.     On June 28, 2005, the IACHR received a request for an extension to arrive at an agreement for compliance with the recommendations, reiterating the interpretation that the extension would result in the suspension of the time period under article 51.1 of the Convention and waiving the right to file preliminary objections with respect to compliance with that time period. On June 29, 2005, the IACHR granted the State a one-month extension and simultaneously suspended the time period for approaching the Inter-American Court.

190.     In a working meeting held on July 19, 2005, in Guatemala City, the parties signed an Agreement for Compliance with the Recommendations from Report Nº 48/03, in the presence of Commissioner Susana Villarán.

191.     On July 29, 2005, the State requested another extension until July 30, 2006, to fulfill its commitments under the Agreement for Compliance with Report Nº 48/03. The State expressed its interpretation that, should the extension be granted, the time period set forth in article 51(1) of the American Convention would be suspended and it explicitly waived its right to file preliminary objections with respect to compliance with that time period. On the same date, the IACHR granted the extension as requested, suspending the time period to submit the case to the Inter-American Court, and requesting that the State report to it every two months during the period in which the extension was in effect, on the progress made in carrying out the recommendations formulated in Report Nº 48/03 and in the agreements signed by the parties.

192.          On the same date, July 29, the petitioners submitted observations to the IACHR regarding compliance with the commitments acquired, which were forwarded to the State on August 16, 2005. On the following August 29, the IACHR received additional observations from the petitioners. On September 7, 2005, the State submitted information on compliance.  On December 15, the IACHR received the petitioners’ observations dated December 7 of that year, which were forwarded to the State on December 29, 2005, with a one-month period in which to respond. On December 20, 2005, the State’s communication of November 9, 2005, was forwarded to the petitioners, granting them a one month period to respond.  On December 27, 2005, the IACHR received the petitioners’ observations dated December 26 of that same year.

193.          A working meeting was held on July 14, 2006 in Guatemala City, attended by the petitioners’ representatives, the victim’s next of kin, representatives of the State, and Commissioner Víctor Abramovich. At the meeting, the status of compliance with the IACHR’s recommendations and with the agreements between the parties was assessed.  In particular, the State pledged to execute the outstanding arrest warrants against the alleged perpetrators in the death of Martín Pelicó Coxic. 

194.          On August 11 and 22, 2006 respectively, the State submitted a request for a three-month extension in the same terms as the previous requests, in order to fulfill the remaining commitments. On August 28, 2006, the IACHR notified the State that the new extension to comply with the recommendations would expire on October 30, 2006, and granted it one month to forward the information it deemed pertinent. On the same date, the IACHR requested that the petitioners submit, within one month, the information they deemed pertinent concerning the State’s compliance with the recommendations.

195.          On September 27, 2006, the petitioners forwarded their observations, and on September 29, 2006, the State’s report was received, which was forwarded to the petitioners the following October 2 for their observations.  

196.          On October 13, 2006, the IACHR received the petitioners’ observations which were forwarded to the State on the following October 20.

197.          On October 26, 2006, at its 126^th regular session, the Commission decided not to submit the case to the Court and to continue to follow up on the recommendations, in accordance with the provisions of article 51 of the American Convention.

198.          The State submitted its observations on October 26, 2006, and on November 17, sent additional information on compliance with the recommendations; both communications were forwarded to the petitioners on December 8, 2006, for their perusal.

X.         COMPLIANCE WITH THE RECOMMENDATIONS

199.          In the instant case, on July 19, 2005, the parties signed an “AGREEMENT FOR COMPLIANCE WITH THE RECOMMENDATIONS FROM REPORT 48/03,” under the following terms:
 

          BACKGROUND

FACTS

Martín Pelicó Coxic was a Mayan Indian who lived in San Pedro Jocopilas in El Quiché department.  He was married to Rosario Hernández Grave with whom he had three children, and he was a member of the Consejo de Comunidades Étnicas Runujel Junam (CERJ), a nongovernmental organization founded in 1988 to defend the human rights of the Mayan people. The CERJ was opposed to service in the Patrullas de Autodefensa Civil [Civil Self-defense Patrols].

On June 27, 1995, Martín Pelicó Coxic was executed extrajudicially. He was 27 years old at the time of his death and his children; David, Marta, and Doris were 7, 6, and 5 years old respectively.

According to the background information in the file before the IACHR, on that 27^th of June, at approximately two o’clock in the afternoon in San Pedro Jocopilas, Mr. Pelicó and his spouse, Rosario Hernández Grave, were heading toward the home of Margarito Hernández and along the way they encountered Mr. Pedro Acabal Chaperón, who invited Mr. Pelicó to accompany him on some errands in Santa Cruz del Quiché.  Mr. Pelicó left in the company of Mr. Acabal.

At seven o’clock in the evening on the same day, two men emerged from a red pick-up truck at the corner of Mr. Pelicó’s street, while another remained in the driver’s seat; they removed Mr. Pelicó from the back of the pick-up, dumping him in the street and fleeing the area. 

Mr. Pelicó’s spouse found him mortally wounded and took him into their house, where he died a few moments later. 

According to paragraph 104 of Report 48/03 of the Inter-American Commission on Human Rights: “In the Commission’s view, it has been demonstrated that the three individuals who arbitrarily executed Martín Pelicó Coxic belonged to the institutions known as the “Comisionados Militares” [military commissioners] and the Civil Self-defense Patrols.”

On August 6, 1996, the CERJ and CEJIL lodged a petition before the Inter-American Commission on Human Rights denouncing the aforementioned events.  On December 2, 2002, the State of Guatemala accepted its institutional liability for having failed to ensure the physical security of Mr. Martín Pelicó Coxic and expressed regret over his death.

The Inter-American Commission on Human Rights issued Report 48/03 on October 8, 2003, which concluded as follows:

Based on the foregoing arguments of fact and of law, the Commission concludes that the State of Guatemala is responsible for the violation of the right to life in accordance with article 4, of the American Convention on Human Rights, in relation to article 1(1) of that instrument, for the extrajudicial execution committed by State agents on June 27, 1995 to the detriment of Martín Pelicó Coxic.

The Commission likewise concludes that the State of Guatemala is responsible for the violation of the human rights to personal integrity, judicial guarantees, and judicial protection  in accordance with articles 5, 8, and 25 of the American Convention in relation to article 1(1) of that instrument due to the events of June 27, 1995, and the attendant situation of impunity, to the detriment of Martín Pelicó Coxic.

In light of the foregoing, the Commission concludes that the State has failed to fulfill its obligations with respect to the human rights and guarantees set forth in article 1(1) of the American Convention, and therefore the Commission recommended as follows:

1.                  Conduct a complete, impartial, and effective investigation into the alleged facts leading to the prosecution and punishment of the material and intellectual authors of the human rights violations committed to the detriment of Martín Pelicó Coxic and his relatives.

2.                  Make reparations for the consequences of the violations of the aforementioned rights.

3.                  Effectively prevent the reemergence and reorganization of the civil self-defense patrols.

4.                  Promote in Guatemala the principles set forth in the United Nations ”Declaration of the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,” and take the necessary measures to ensure respect for the freedom of expression of those who have undertaken to work for the respect of fundamental rights and to protect their lives and personal integrity.

5.                  Adopt all necessary measures to prevent the recurrence of similar acts, in accordance with the duty to prevent and to guarantee the fundamental rights recognized in the American Convention.”

CONTENTS OF THIS AGREEMENT

SYMBOLIC REPARATIONS AND GUARANTEES OF NON-RECURRENCE

Justice

By virtue of the fact that a trial was held resulting in an acquittal and that no appeal is available to reverse the verdict, the condition of res judicata applies.  Steps will be taken to reactivate the outstanding arrest warrants and, if necessary, further steps will be taken to give them international effect, so that the case pending against the alleged perpetrators can proceed to their trial and punishment.  The Government pledges to deliver a report to the petitioners concerning the status of issuing the international arrest warrants.

In view of the res judicata declaration in favor of one of the alleged perpetrators, COPREDEH,[85] in conjunction with the Supreme Court of Justice, shall hold a Forum at the highest level to examine the problems facing the administration of justice system.  COPREDEH pledges to submit a logistical and methodological proposal for this forum in August and the forum is tentatively scheduled for October 8, 2005. 

Holding a forum on the problems facing the justice system in Guatemala does not signify unwillingness on the part of the State to fulfill its responsibility to proceed with the investigation and punishment of those responsible for the events, but rather is a way to strengthen the justice system in Guatemala.

Education

The Government of Guatemala shall grant a scholarship to the child Marta Raquel Pelicó Hernández beginning in the 2006 school year.  The necessary steps will be taken so that the renewal of the scholarship is not contingent upon the academic performance of the beneficiary.

The Government shall grant a scholarship to Eliseo David Pelicó Hernández, in consultation with the beneficiary.

In the case of Martha Pelicó Hernández and Doris Sulamita Pelicó Hernández, who have stated that they do not wish to continue their studies and that they would prefer that each be provided with a sewing machine, the Government shall provide one sewing machine immediately upon signing this agreement and the other in October.  If it is not possible to provide a sewing machine, a sum of money equivalent to its market value shall be paid. 

Family Home

The Government of Guatemala pledges to provide land for a house for the widow and four children of Mr. Pelicó Coxic, valued at six thousand dollars ($6,000.00) based on the exchange rate used in the negotiation process and the value indicated by the petitioners.

The Government of Guatemala pledges to pay ten per cent (10%), equivalent to six hundred dollars ($600.00), as an advance on the sum allocated for the housing issue prior to July 28, 2005, in order to reserve the land, and will complete payment of the total amount by the end of 2005.

The Government of Guatemala pledges to provide construction materials during 2005 for the dwelling, which shall consist of three bedrooms, a living room, dining room, kitchen, and bathroom, and to this end, shall take the necessary steps in the Secretariat of Executive Coordination of the Office of the Presidency by July 28, 2005.

Family Support

The Government of Guatemala shall provide training to Martha Pelicó Hernández and Doris Sulamita Pelicó Hernández in dressmaking, and shall take steps so that the widow, Rosario Hernández Grave, and children of Martín Pelicó Coxic, receive assistance, training, and inputs to establish another family productive activity which shall consist of the delivery of five hogs (4 females and one male) for breeding.

Health Care

The Government of Guatemala, through the appropriate entity, shall provide a physical examination to the widow and children of Mr. Martín Pelicó Coxic to determine their state of health and should they require health care and medication, shall provide it until any health problems they may have are improved, which shall be determined by a physician from the national hospital network or one designated by the Ministry of Public Health.

In order to fulfill this commitment, on July 22, 2005, the entire family shall report to the Hospital General de Santa Cruz, El Quiché, to complete any remaining tests and to schedule the next appointments.

Acknowledgment of International Liability and Apology to the Victim’s Next of Kin

In the Speech of the President of the Republic delivered on February 25, 2004, the Government of Guatemala stated as follows: “In my capacity as President of the Republic, I wish to take advantage of this commemorative act honoring the victims of violence as a special opportunity to ask forgiveness, on behalf of the State of Guatemala, of each and every one of the victims’ relatives, for the suffering caused by this fratricidal conflict that we Guatemalans suffered for four decades.”

Based on the foregoing, the Government pledges to present privately, in deference to the family’s wishes, a written communication addressed to the family of Mr. Martín Pelicó Coxic, recognizing the State’s liability for the violation of the constitutional rights and the rights enshrined in the American Convention on Human Rights of the victim and his relatives, which is not to imply an acknowledgment of the individual liability of the alleged authors, which the State has the mandate and duty to establish through the domestic legal system.
 

ECONOMIC  REPARATIONS

The Government of Guatemala recognizes the right of Martín Pelicó Coxic’s next of kin to reparations for the violations they suffered due to his death and, to this end, the negotiation shall take into account national and international standards.   

Material damages

-          Loss of profits

Loss of profits represents all income the family may have earned if Martín Pelicó Coxic had not died, as well as the income that the family no longer received as a result of those events.

For loss of profits, the amount of Q 461,478.21  ($60,490.00) is considered appropriate.

-          Consequential damages

Consequential damages refer to the harm caused as a direct consequence of the events. In this case, they should include the expenses incurred by the victim’s family as a direct consequence of the reported events.

Therefore, for consequential damages,  the funeral expenses shall be taken into account and the sum of Q7000.00 ($917.55) is considered appropriate.

-          Moral damages

The individuals who should be compensated for moral damages are: 1) Martín Pelicó Coxic (victim), 2) Rosario Hernández Grave (spouse), 3) Eliseo David Pelicó Hernández (son), 4) Martha Pelicó Hernández (daughter)  5) Doris Sulamita Pelicó Hernández (daughter), 6) Marta Raquel Pelicó Hernández (daughter).

For moral damages  the sum of Q 457,740.00  ($60,000.00) is considered appropriate.

The total amount for Loss of profits, Consequential Damages, and Moral Damages comes to  Q. 926,218.21.

For the purchase of a plot of land for the family of Martín Pelicó Coxic, this financial compensation package shall also include the amount of Q. 45,774.00 ($6,000.00).

The total amount shall be broken down as follows:

Rosario Hernández Grave                                      Q. 250,000.00

The following sum shall be

divided in equal parts between the

Mr.  Pelicó Coxic’s four children.                           Q. 676,218.21

                                                                                    ____________

                                                                        TOTAL  Q. 926,218.21

The market value of a sewing machine for the daughters of Martín Pelicó Coxic shall also be included.

These two categories come to a total of Q 45,774.00 ($ 6,000.00).

Payment of financial compensation shall be made before the end of the first quarter of 2006.

The petitioners’ representatives, CEJIL and CERJ, waive all legal fees in this case.

TIME PERIODS

The time periods established in this agreement for compliance may be extended with the consent of both parties, or in situations of force majeure or in case of accident, in accordance with Guatemalan law.

LEGAL BASIS

This Agreement is signed based on articles 1, 2, 3, 44, 46 y 183(a) and on the fundamental principles set forth in the Political Constitution of the Republic of Guatemala and in the Peace Accords signed by the Government of the Republic of Guatemala and the Guatemalan National Revolutionary Unity (URNG), and on respect for the human rights enshrined in articles 1.1, 4, 5, 6, 22.1, 8, 25 y 63.1 of the American Convention on Human Rights. In Guatemala City, July 2005. [86]

200.     According to the information provided by the petitioners and by the State up to the date of this report, the following commitments assumed by the State in the Agreement of July 19, 2005 have been fulfilled.

-           Justice

201.     With regard to the matter of justice and the outstanding arrest warrants, Mr. Juan Chivalán Xam was arrested on August 15, 2006, in San Miguel Petapa, by agents of the National Civilian Police and was brought before the 24-hour court (tribunal de turno).  According to the information supplied by the parties, the pre-trial detention order issued for Chivalán Xam was revoked on August 21, 2006, and he was ordered released. However, the State reported on October 25, 2006, that he remained in custody because, even though he could not be included in this case since the relatives of Martín Pelicó had withdrawn, he remained incarcerated for his role in the death of Diego Velásquez Soc. (IACHR, Case 11.677, Diego Velásquez Soc and Matías Velásquez).

202.     Mr. Pedro Acabal Chaperon was arrested on September 21, 2006, by agents of the National Civilian Police, and was brought before the Justice of the Peace of Amatitlan, Department of Guatemala.

203.     Also in this category, COPREDEH and the Supreme Court of Justice of Guatemala organized a forum titled, “Debilidades y Desafíos del Sistema de Justicia Guatemalteco” [Weaknesses and Challenges of the Guatemalan Justice System”], which was held on September 22, 2005 to address the problems facing the administration of justice system.

-           Education

204.     The State granted scholarships to Marta Raquel Pelicó and Eliseo David Pelicó. With regard to the latter, the State asserted that the scholarship included a sum for room and board, but that the beneficiary had dropped out of the study program.  The petitioners explained that in fact David Pelicó had attended the State-sponsored program “my first job,” which provides an opportunity to study and a monthly scholarship in the amount of $800 quetzales.  However, the family reported that the scholarship was insufficient to cover the requisite room, board and transportation costs so that he could continue his studies and, as a result, he had been obliged to return to the family home in El Quiché.  In view of this, the petitioners requested that the State grant a scholarship beginning in 2007 to enable David Pelicó to finish secondary school.

205.     The State delivered two sewing machines to Martha and Doris Sulamita Pelicó Hernández.

            -           Family home

206.     The State paid the amount stipulated for the purchase of a plot of land during 2005; as of the date of this report, the delivery of materials for construction of the house remains pending.

-           Family support

207.     With regard to family support, the State has fulfilled its commitment to provide training in dressmaking to Martha Pelicó Hernández.  With respect to Doris Sulamita Pelicó Hernández, the State was informed that she would not be taking the course for personal reasons.  The five hogs for breeding also were delivered.

-           Health care

208.     The health status of the members of the Pelicó Hernández family was evaluated in September 2005 and the required medications were provided to them.

-           Acknowledgment and apology to the victim’s relatives

209.     At the request of the victim’s next of kin, the State carried out the request for forgiveness for what had occurred in a private ceremony held on November 9, 2006, during which the president of COPREDEH presented a letter to the family in their home.

-           Economic reparations

210.     In December 2005, the State issued a payment to the widow and children of Martín Pelicó in the amount corresponding to economic reparations for loss of profits, consequential damages, and moral damages which, at the time of payment, was equivalent to U.S. $121,407.55.

211.     In view of the foregoing, the Commission considers that in the instant case the State of Guatemala has complied with the majority of its commitments in the area of reparations set forth in the Agreement for Compliance with the Recommendations from Report 48/03 of the Inter-American Commission on Human Rights,” signed by the parties on July 19, 2005; still pending are the delivery of materials for the construction of a family home and the creation of a scholarship so that David Pelicó may finish his schooling in his place of residence.  In the area of justice, the Commission recommended that the State conduct a complete, impartial, and effective investigation into the events leading to the prosecution and punishment of the material and intellectual authors of the human rights violations committed to the detriment of Martín Pelicó Coxic and his next of kin. To date, however, the legal investigation remains pending.

212.     On October 26, 2006, at its 126th regular session, the Commission decided by unanimous vote not to submit the case for the consideration of the Court and to continue to follow up on the pending recommendations, in accordance with the provisions of article 51 of the American Convention.

XI.        CONCLUSIONS

213.     The Commission concludes that the State of Guatemala violated the right to life through the extrajudicial execution carried out by State agents on July 27, 1995, to the detriment of Martín Pelicó Coxic, in accordance with article 4 of the American Convention in its relation to article 1.1 of that instrument. The Commission likewise concludes that the State of Guatemala is responsible for the violation of the right to personal integrity, judicial guarantees, and judicial protection, under articles 5, 8, and 25 of the American Convention in relation to article 1.1 of that instrument, due to the events of June 27, 1995, and the attendant situation of impunity, to the detriment of Martín Pelicó Coxic and his next of kin.

214.     The Commission notes with satisfaction the agreement for compliance with the recommendations signed by the State of Guatemala and the petitioners, and the important progress made in carrying it out.

XII.           RECOMMENDATIONS

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

1.        Conduct a complete, impartial, and effective investigation of the reported events leading to the prosecution and punishment of the material and intellectual authors of the human rights violations committed to the detriment of Martín Pelicó Coxic and his next of kin.

2.       Effectively prevent the reemergence and reorganization of the Civil Self-defense Patrols.

3.             Promote in Guatemala the principles set forth in the United Nations “Declaration of the Right and Responsibility of Individuals, Groups, and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms,” and take the necessary measures to ensure respect for the freedom of expression of those who have undertaken to work for the respect of fundamental rights and to protect their lives and personal integrity.

4.            Adopt all necessary measures to prevent the recurrence of similar acts, in accordance with the responsibility to prevent and to guarantee the fundamental rights recognized in the American Convention.”

5.       Comply with the obligations still pending in the area of reparations to the victim’s next of kin.

215.     In virtue of the foregoing and the provisions of article 51.1 and 2 of the American Convention, the Commission decides to request that the State, within three months counting from the date of notification of the instant report, send a detailed report on compliance with the recommendations that remain pending.

XIII.      PUBLICATION

215.          On March 8, 2007, the Commission approved Report No. 12/07 – reproduced above – pursuant to Article 51 of the American Convention. On March 15, 2007, the Commission transmitted this report to the State of Guatemala and to the petitioners, in accordance with Article 51.1 of the American Convention, and granted the State a period of three months to report on compliance with the above-mentioned recommendations.

216.          On June 4, 2007, the State presented a detailed report on compliance with the recommendations issued by the IACHR in Report on the Merits 48/03 and with respect to the commitments undertaken in the “Agreement on Compliance with Recommendations of Report 48/03,” signed by the parties on July 19, 2005. The State’s report was forwarded to the petitioners on June 13, 2007 and they presented their observations on June 22, 2007. The latter were forwarded to the State on June 25, 2007. On July 20, 2007, the Commission received the observations of the State, which were forwarded to the petitioners on July 26, 2007. The petitioners presented their observations on August 29, 2007.

217.          The Commission considered (supra 211) that in the instant case the State of Guatemala had complied with many of the commitments undertaken with respect to reparation in the “Agreement on Compliance with Recommendations of Report 48/03 of the Inter-American Commission on Human Rights,” signed by the parties on July 19, 2005. It also considered that still pending were the delivery of materials with which to build a home and the determination of a scholarship to enable David Pelicó to complete his studies in the area in which he lives.  With respect to justice, the Commission stated that a court investigation was still pending.

218.          According to the information provided by the parties, delivery was made of the construction materials for a home, while the matter of a scholarship to enable David Pelicó to complete his studies in the area in which he lives is still pending.  The petitioners consider that, with regard to the investigation and punishment of those responsible for the death of Martín Pelicó, the State of Guatemala is formally obliged to investigate violations such as those committed against Mr. Pelicó, even though the family has relinquished the pursuit of judicial proceedings.

219.          With respect to justice, the State reported in its note dated July 20, 2007 that, according to witnesses, those allegedly responsible for the execution of Martín Pelicó Coxic were Juan Chivalam Xam and Pedro Acabal Chaperón.

220.          Regarding Juan Chivalam Xam, the State advised that on November 14, 2006, the Criminal Court of First Instance, Narcotics Activities, and Crimes against the Environment of the Department of El Quiché resolved to revoke, definitively, the preventive custody and indictment against him, and that he had been free since December 2006. The State adds that the Judge of the aforementioned Court notified that “At the request of Mrs. Rosario Hernández Grave (the wife of Martin Pelicó), this Court, on October 10, 2006, regards as accepted, in favor of JUAN CHIVALAM XAM, the relinquishment of all criminal and civil action.”

221.          As for Pedro Acabal Chaperón, the State reported that on September 21, 2006, he was captured by members of the Civilian National Police. It adds that on April 24, 2007, the Presiding Judge for Criminal Cases, Narcotics Activities and Crimes against the Environment of the Department of El Quiché reported that on September 29, 2006, Mrs. Rosario Hernández Grave waived her rights and fully relinquished, in favor of Pedro Acabal Chaperón, all civil and criminal action, and that the Court had resolved to consider that application accepted. The State goes on to report that on December 8, 2006, Mr. Pedro Acabal Chaperón asked for his legal status to be reviewed. The Court acceded to that request, granting him the alternative measure of being obliged to appear in person to sign the register of persons subject to alternative measures at the Court of the Judge of the Peace of the municipality of Amatitlán.  Subsequently, the State reported that the Court had scheduled the oral and public debate hearing in proceedings on the merits for July 10, 2007.

222.          Finally, with respect to the situation of Juan Chivalám Xam, the State advised that according to a communication dated June 1, 2007, issued by the Office of the Attorney General (Ministerio Público), the three witnesses on whom the request and order to arrest him had depended had retracted their testimony.

223.          In light of the above consideration and pursuant to Article 51.3 of the American Convention and Article 45 of its Rules of Procedure, the Commission decides to reiterate its satisfaction that most of the commitments undertaken in the “Agreement on Compliance with Recommendations of Report 48/03,” signed by the parties on July 19, 2005, have been honored.  It also decides to reiterate the requirement to comply with the still pending obligation to provide a scholarship to enable David Pelicó to complete his studies in the area in which he lives.

224.          At the same time, as regards recommendation 2 (supra XII), regarding the duty of the State to avoid a resurgence or re-organization of the Civil Self-Defense Patrols, the Commission takes note of the fact that the Government has not expressly reported the adoption of any measures to that effect and that there are still instances of tensions and pressure exerted by former patrol members to the detriment of the population in some regions of the country, including the area in which the aforementioned events took place.  In addition, with respect to recommendation 3 (supra XII), the Commission has noted a series of steps taken by the Presidential Commission for Coordinating the Executive’s Human Rights Policy to promote respect and protection for those who have taken it upon themselves to promote respect for fundamental rights.  However, these steps have been clearly insufficient, given the current plight in Guatemala of human rights defenders.

225.          In light of the above, the Commission decides to reiterate recommendations 2 and 3 (supra XII) and to recommend completion of an impartial and effective investigation of the events denounced, in order to try and punish the perpetrators and instigators of the human rights violations committed to the detriment of Martín Pelicó Coxic and his family.

226.          Finally, the Commission decides to publish this report and to include it in its Annual Report to the OAS General Assembly. Pursuant to its mandate, the Commission will continue to evaluate the measures adopted by the State of Guatemala in connection with the aforementioned recommendation, until it has been fully implemented.

Done and signed in the city of Washington, D.C., on the 15^th day of the month of October, 2007. Signed: Florentín Meléndez, President; Paolo G. Carozza, First Vice-President; Víctor E. Abramovich, Second Vice-President; Evelio Fernández Arévalos, Clare K. Roberts, and Freddy Gutiérrez, members of the Commission.