IACHR ANNUAL REPORT 2008


CHAPTER III -
THE PETITION AND CASE SYSTEM

  Status of compliance with the recommendations of the IACHR (Continuation)

 

 

Case 12.028, Report N° 47/01, Donnason Knights (Grenada)

 

385.          In Report N° 47/01 dated April 4, 2001, the Commission concluded the State was responsible for: a) violating Mr. Knights’ rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Knights to a mandatory death penalty; b) violating Mr. Knights’ rights under Article 4(6) of the Convention, in conjunction with a violation of Article 1(1) of the American Convention, by failing to provide Mr. Knights’ with an effective right to apply for amnesty, pardon or commutation of sentence; c) violating Mr. Knights' rights under Article 5(1) and 5(2) of the American Convention, in conjunction with a violation of Article 1(1) of the American Convention, because of Mr. Knights’ conditions of detention; and d) violating Mr. Knights’ rights under Articles 8 and 25 of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by failing to make legal aid available to him to pursue a Constitutional Motion.

 

386.          The IACHR issued the following recommendations to the State:

 

1. Grant Mr. Knights an effective remedy which includes commutation of sentence and compensation.

 

2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in violation of the rights and freedoms guaranteed under the Convention, including Articles 4, 5, and 8, and in particular, to ensure that no person is sentenced to death pursuant to a mandatory sentencing law.

 

3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence is given effect in Grenada.

 

4. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the American Convention and the right to judicial protection under Article 25 of the American Convention are given effect in Grenada in relation to recourse to Constitutional Motions.

 

5. Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment under Article 5(1) and Article 5(2) of the American Convention in respect of the victim’s conditions of detention is given effect in Grenada.

 

387.          On December 23, 2002, the petitioner wrote to the Commission and reported of the following: On May 2001, Anslem B. Clouden, Attorney-at-Law had written to the Attorney General of Grenada requesting adoption of the necessary measures in compliance with the Commission’s recommendations. To date, as far as we are aware, there has been no response from the Attorney General, and Mr. Knights remains on death row, and we are unaware of any legislative measures, or any measures being adopted in relation to conditions of detention. In March 2002, the Judicial Committee of the Privy Council delivered landmark decisions in 3 cases, Patrick Reyes, Peter Hughes & Bertil Fox. They declared that the mandatory death penalty imposed on all those convicted of murder in the Eastern Caribbean and Belize is unconstitutional. The effect of this decision means that Mr. Knights’ sentence will have to be reviewed as he was automatically sentenced to death upon conviction. Mr. Knights will now have an opportunity to place before the courts mitigating circumstances as to why the death penalty may not be appropriate in his case. Whilst the adoption of new legislative measures were as a result of the appeal to the Privy Council in the trilogy of cases mentioned above, and, not as a result of the Commission’s recommendations in this case, the views of the Commission in relation to the mandatory issue were an important aspect of the arguments before the courts. The Commission’s recommendations and its decisions have played an instrumental role in these decisions.” Based on these considerations, the IACHR presumes that the Government of Grenada has not complied with the Commission’s recommendations.

 

388.          By communications of November 9, 2004, the Commission requested information from the parties about compliance with the recommendations set forth in Report N° 47/01, pursuant to Article 46.1 of the Commission’s Rules of Procedure. To date, the Commission has not received any response from the State.

 

389.          By letters of January 10, 2005, the Petitioners reported the Commission that the Judicial Committee of the Privy Council ruled in March 2002, that the mandatory death penalty was unconstitutional for certain Caribbean countries, including Grenada. The Petitioners added that all of the alleged victims remain on death row, awaiting judicial hearings to allow the Grenadian courts to re-sentence the alleged victims after hearing submission in mitigation of sentence. The petitioners stated that it is unlikely that any of the alleged victims will be re-sentenced to death; they have all been on death row for a period in excess of five years. According to the petitioners, execution of the alleged victims would, in these circumstances, be unconstitutional.

 

390.          The petitioners submitted that apart from the judicial abolition of the mandatory death penalty, Grenada has not taken any steps to comply with the recommendations of the Commission.

 

391.          On November 2, 2007 and on November 5, 2008 the Commission wrote to both the State and the petitioners and requested updated information concerning compliance with the Commission’s Recommendations in Report N° 47/01. The request made in 2007 was not responded by either party, but on January 6, 2009 the petitioners forwarded a communication in response to the most recent request.  Among other considerations, the petitioners mention that by February 2008 the State of Grenada “had still failed to quash and reconsider the sentences of those sentenced to the mandatory death penalty (including Donnason Knights)”.  As a result of the delay in providing Mr. Knights with a remedy, the petitioners had to request the Judicial Committee of the Privy Council the quashing of the death sentence followed by an individualized sentence hearing.  On June 11 2008 the Privy Council quashed the mandatory death sentence and ordered the case to be sent back to the Supreme Court of Grenada for the appropriate sentence.  The petitioners add that the mandatory death penalty is clearly unconstitutional in Grenada by virtue of the jurisprudence of the Privy Council, whereby the law of that country has been brought into conformity with the American Convention on Human Rights.  However, they submit that Grenada failed to grant Mr. Knights a remedy in relation to the mandatory death penalty, since his death sentence was quashed as a result of his own petition to the Privy Council.  Finally, the petitioners mention that they “have requested further information on the present conditions of confinement on death row in Grenada” and that they would forward it to the IACHR as soon as they received it.

 

392.          The Commission observes that the legal situation of Mr. Knights has improved substantially in 2008 by virtue of the actions filed by his representatives, in partial compliance with the recommendations issued in the report on his case.  However, there is no information on legal recourses established to guarantee the rights that were violated in this case, or on the measures taken to ensure Mr. Knights’ right to humane treatment in Grenada. 

 

393.          The IACHR concludes that there is partial compliance with its recommendations in this case.

 

Case 11.765, Report N° 55/02, Paul Lallion (Grenada)

 

394.          In Report N° 55/02 dated October 21, 2003, the IACHR concluded that the State of Grenada was responsible for: a) violating Mr. Lallion's rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Lallion to a mandatory death penalty; b) violating Mr. Lallion's rights under Article 4(6) of the Convention, in conjunction with a violation of Article 1(1) of the American Convention, by failing to provide Mr. Lallion with an effective remedy to apply for amnesty, pardon or commutation of sentence; c) violating Mr. Lallion's rights under Article 5(1) of the American Convention, in conjunction with a violation of Article 1(1) of the American Convention, because of its failure to respect Mr. Lallion's right to physical, mental, and moral integrity by confining  him in inhumane conditions of detention; d) for violating Mr. Lallion's rights under Articles 8 and 25 of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by failing to make legal aid available to Mr. Lallion to pursue a Constitutional Motion; and e) violating Mr. Lallion's right to personal liberty as provided by Article 7(2), 7(4), and 7(5) of the Convention, in conjunction with Article 1(1) of the Convention by failing to protect his right to personal liberty, and to be brought promptly before a judicial officer.  

 

395.          The IACHR issued the following recommendations to the State:

 

1.  Grant Mr. Lallion an effective remedy which includes commutation of sentence and compensation.

 

2.  Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in violation of the rights and freedoms guaranteed under the Convention, including Articles 4, 5, and 8, and in particular, to ensure that no person is sentenced to death pursuant to a mandatory sentencing law in Grenada.

 

3.  Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence is given effect in Grenada.

 

4.  Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the American Convention and the right to judicial protection under Article 25 of the American Convention are given effect in Grenada in relation to recourse to Constitutional Motions.

 

5.  Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment under Article 5(1) of the American Convention in respect of Mr. Lallion’s conditions of detention is given effect in Grenada.

 

6.  Adopt such legislative or other measures as may be necessary to ensure that the right to personal liberty under Article 7(2), Article 7(4), and 7(5) of the American Convention in respect of Mr. Lallion is given effect in Grenada.

  

396.          By letters of January 10, 2005, the petitioners reported the Commission that the Judicial Committee of the Privy Council ruled in March 2002, that the mandatory death penalty was unconstitutional for certain Caribbean countries, including Grenada. The petitioners added that all of the alleged victims remain on death row, awaiting judicial hearings to allow the Grenadian courts to re-sentence the alleged victims after hearing submission in mitigation of sentence.

 

397.          The petitioners stated that it is unlikely that any of the alleged victims will be re-sentenced to death; they have all been on death row for a period in excess of five years. According to the Petitioners, execution of the alleged victims would, in these circumstances, be unconstitutional.

 

398.          The petitioners submitted that apart from the judicial abolition of the mandatory death penalty, Grenada has not taken any steps to comply with the recommendations of the Commission. To date the Commission has not received any information from the State.

 

399.          On November 2, 2007 and November 5, 2008, the Commission wrote to both the State and the petitioners and requested up-dated information concerning compliance with the Commission’s Recommendations in Report N° 55/02. The request made in 2007 was not responded by either party, but on January 6, 2009 the petitioners forwarded a communication in response to the most recent request.  Among other considerations, the petitioners mention that by February 2008 the State of Grenada “had still failed to quash and reconsider the sentences of those sentenced to the mandatory death penalty (including Paul Lallion)”.  As a result of the delay in providing Mr. Jacob with a remedy, the petitioners had to request the Judicial Committee of the Privy Council the quashing of the death sentence followed by an individualized sentence hearing.  On June 11 2008 the Privy Council quashed the mandatory death sentence and ordered the case to be sent back to the Supreme Court of Grenada for the appropriate sentence.  The petitioners add that the mandatory death penalty is clearly unconstitutional in Grenada by virtue of the jurisprudence of the Privy Council, whereby the law of that country has been brought into conformity with the American Convention on Human Rights.  However, they submit that Grenada failed to grant Mr. Lallion a remedy in relation to the mandatory death penalty, since his death sentence was quashed as a result of his own petition to the Privy Council.  Finally, the petitioners mention that they “have requested further information on the present conditions of confinement on death row in Grenada” and that they would forward it to the IACHR as soon as they received it.

 

400.          The Commission observes that the legal situation of Mr. Lallion has improved substantially in 2008 by virtue of the actions filed by his representatives, in partial compliance with the recommendations issued in the report on his case.  However, there is no information on legal recourses established to guarantee the rights that were violated in this case, or on the measures taken to ensure Mr. Lallion’s right to humane treatment in Grenada. 

 

401.          The IACHR concludes that there is partial compliance with its recommendations in this case.

 

Case 12.158, Report N° 56/02 Benedict Jacob (Grenada)

 

402.          In Report N° 56/02 dated October 21, 2003, the Commission concluded that the State was responsible for: a) violating Mr. Jacob's rights under Articles 4(1), 5(1), 5(2) and 8(1), in conjunction with a violation of Article 1(1) of the American Convention, by sentencing Mr. Jacob to a mandatory death penalty; b) violating Mr. Jacob's rights under Article 4(6) of the Convention, in conjunction with a violation of Article 1(1) of the American Convention, by failing to provide Mr. Jacob with an effective remedy to apply for amnesty, pardon or commutation of sentence; c) violating Mr. Jacob's rights under Article 5(1) of the American Convention, in conjunction with a violation of Article 1(1) of the American Convention, because of its failure to respect Mr. Jacob's rights to physical, mental, and moral integrity by confining him in inhumane conditions of detention; and d) violating Mr. Jacob's rights under Articles 8 and 25 of the Convention, in conjunction with a violation of Article 1(1) of the Convention, by failing to make legal aid available to him to pursue a Constitutional Motion.

 

403.          The IACHR issued the following recommendations to the State:

 

1. Grant Mr. Jacob an effective remedy which includes commutation of sentence and compensation.

 

2. Adopt such legislative or other measures as may be necessary to ensure that the death penalty is not imposed in violation of the rights and freedoms guaranteed under the Convention, including Articles 4, 5, and 8, and in particular, to ensure that no person is sentenced to death pursuant to a mandatory sentencing law in Grenada.

 

3. Adopt such legislative or other measures as may be necessary to ensure that the right under Article 4(6) of the American Convention to apply for amnesty, pardon or commutation of sentence is given effect in Grenada.

 

4. Adopt such legislative or other measures as may be necessary to ensure that the right to a fair hearing under Article 8(1) of the American Convention and the right to judicial protection under Article 25 of the American Convention are given effect in Grenada in relation to recourse to Constitutional Motions.

 

5. Adopt such legislative or other measures as may be necessary to ensure that the right to humane treatment under Article 5(1) of the American Convention in respect of Mr. Jacob’s conditions of detention is given effect in Grenada.

   

404.          By letters of January 10, 2005, the petitioners in Case 12.158 (Benedict Jacob) reported the Commission that the Judicial Committee of the Privy Council ruled in March 2002, that the mandatory death penalty was unconstitutional for certain Caribbean countries, including Grenada. The petitioners added that all of the alleged victims remain on death row, awaiting judicial hearings to allow the Grenadian courts to re-sentence the alleged victims after hearing submission in mitigation of sentence.

 

405.          The petitioners stated that it is unlikely that any of the alleged victims will be re-sentenced to death, as they have all been on death row for a period in excess of five years. According to the petitioners, execution of the alleged victims would, in these circumstances, be unconstitutional.

 

406.          Finally, the petitioners submitted that apart from the judicial abolition of the mandatory death penalty, Grenada has not taken any steps to comply with the recommendations of the Commission. The IACHR has not received any information from the State.

 

407.          On November 2, 2007 and on November 5, 2008 the Commission wrote to both the State and the petitioners and requested updated information concerning compliance with the Commission’s Recommendations in Report N° 55/02. The request made in 2007 was not responded by either party, but on January 6, 2009 the petitioners forwarded a communication in response to the most recent request.  Among other considerations, the petitioners mention that by February 2008 the State of Grenada “had still failed to quash and reconsider the sentences of those sentenced to the mandatory death penalty (including Benedict Jacob)”.  As a result of the delay in providing Mr. Jacob with a remedy, the petitioners had to request the Judicial Committee of the Privy Council the quashing of the death sentence followed by an individualized sentence hearing.  On June 11 2008 the Privy Council quashed the mandatory death sentence and ordered the case to be sent back to the Supreme Court of Grenada for the appropriate sentence.  The petitioners add that the mandatory death penalty is clearly unconstitutional in Grenada by virtue of the jurisprudence of the Privy Council, whereby the law of that country has been brought into conformity with the American Convention on Human Rights.  However, they submit that Grenada failed to grant Mr. Jacob a remedy in relation to the mandatory death penalty, since his death sentence was quashed as a result of his own petition to the Privy Council.  Finally, the petitioners mention that they “have requested further information on the present conditions of confinement on death row in Grenada” and that they would forward it to the IACHR as soon as they received it.

 

408.          The Commission observes that the legal situation of Mr. Jacob has improved substantially in 2008 by virtue of the actions filed by his representatives, in partial compliance with the recommendations issued in the report on his case.  However, there is no information on legal recourses established to guarantee the rights that were violated in this case, or on the measures taken to ensure Mr. Jacob’s right to humane treatment in Grenada. 

 

409.          The IACHR concludes that there is partial compliance with its recommendations in this case.
 

Case 11.625, Report No. 4/01, María Eugenia Morales de Sierra (Guatemala)

 

410.          In Report No. 4/01 of January 19, 2001, the IACHR concluded that the Guatemalan State was responsible for having violated the rights of María Eugenia Morales de Sierra to equal protection, respect for her family life, and respect for her private life, established at Articles 24, 17, and 11 of the American Convention on Human Rights in relation to the title and section 1 of Article 110 and Article 317(4), and that accordingly the State was responsible for breaching the obligation imposed by Article 1 to respect and ensure those rights enshrined in the Convention, as well as the obligation imposed on it by Article 2 to adopt legislation and other measures necessary for upholding those rights of the victim.

 

411.          The Commission made the following recommendations to the Guatemalan State:

 

1. Adapt the pertinent provisions of the Civil Code to balance the legal recognition of the reciprocal duties of women and men in marriage and take the legislative and other measures necessary to amend Article 317 of the Civil Code so as to bring national law into conformity with the norms of the American Convention and give full effect to the rights and freedoms guaranteed to María Eugenia Morales de Sierra therein.

 

2. Redress and adequately compensate María Eugenia Morales de Sierra for the damages done by the violations established in this Report.

 

412.          On March 3, 2006, the petitioners and the Guatemalan State signed an “Agreement for Specific Compliance with Recommendations” for the purpose of formalizing the obligations of the State. In that agreement, María Eugenia Morales de Sierra expressly waived the economic reparation that the IACHR recommended be paid to her in her status as victim because “her struggle consists of uplifting the dignity of women.”

 

413.          On November 3, 2008, the Commission asked the parties for up-to-date information on the status of implementation of the agreement.  On December 1, 2008, the petitioners reported that the pertinent provisions of the Civil Code have not been adapted to balance the legal recognition of the reciprocal duties of women and men in marriage. In addition, they reported that no legislative measures have been taken to amend Article 317 of the Civil Code. As regards compensation, they stated that while the COPREDEH has followed through with the process of registering the Fundación para la Dignidad Maria Eugenia Morales Aceña de Sierra (FUNDADIG) with the tax registries in the country, the activities of the foundation have yet to begin formally. In addition, they reported that the delivery of the book La Cosmovisión maya y las mujeres: aportes desde el punto de vista de una Ajq’ij. Guía Espiritual Kaqchikel (The Mayan Cosmovision and Women: Contributions from the point of view of an Ajq’ij, Kaqchikel Spiritual Guide) has been scheduled for the first week in December.

 

414.          On December 5, 2008, the State reported that it continues taking steps vis-à-vis the legislature for it to consider the legislative initiative submitted by the Executive to go forward with the amendment to Article 317 of the Civil Code. In addition, it reported on compliance with some points contained in the Agreement on Specific Compliance with Recommendations as follows: The preliminary report of the document “Research project on Laws and Norms that Discriminate against Guatemalan Women” is in the final review stage. With respect to holding campaigns to raise awareness of aspects of the vulnerability of women in Guatemalan society, the State indicated that as part of the campaigns that it has carried out, banners and posters were produced, and three radio spots were broadcast. Nonetheless, it states that the petitioners did not recognize this last point as part of the implementation of the agreement, even though the petitioner accepted verbally that those activities were carried out.

 

415.          The State also indicated that it is expected the book La Cosmovisión maya y las mujeres: aportes desde el punto de vista de una Ajq’ij. Guía Espiritual Kaqchikel will be presented in 2009, because it has already been printed. With respect to the academic competition established in the agreement, it reported that the final version of the terms is expected soon; once available they will be distributed. On the research to be done on various issues relating to women, it stated that the terms of reference were sent to SEPREM, DEMI, and the petitioner. As the petitioner proposes to rework the terms of reference, a meeting is to be scheduled for January 2009.

 

416.          Therefore, the IACHR concludes that the Guatemalan State has partially carried out the recommendations.

 

Case 9207, Report No. 58/01, Oscar Manuel Gramajo López (Guatemala)

 

417.          In Report No. 58/01 of April 4, 2001, the IACHR concluded that the Guatemalan State had violated the rights of Mr. Oscar Manuel Gramajo López to life (Article 4), humane treatment (Article 5), personal liberty (Article 7), and judicial protection (Articles 8 and 25), in conjunction with the obligation to ensure the rights protected in the Convention, established at its Article 1(1). According to the antecedents, on November 17, 1980, Oscar Manuel Gramajo López and three companions were detained by members of the National Police, who had the help of members of the Treasury Police and some members of the military. The detention took place in circumstances in which the victim and his friends were in the home of one of the latter, listening to the radio with the volume turned all the way up, having a few drinks, when a neighbor reported them to the police because of the noise they were making.

 

418.          In Report No. 58/01 the Commission made the following recommendations to the Guatemalan State:

 

1. Conduct an impartial and effective investigation of the facts reported to determine the circumstances and fate of Mr. Oscar Manuel Gramajo López, which would establish the identity of those responsible for his disappearance and punish them in accordance with due process of law.

 

2. Adopt measures for full reparation of the violations determined, including: steps to locate the remains of Mr. Oscar Manuel Gramajo López; the necessary arrangements to accommodate the family’s wishes in respect of his final resting place; and proper and timely reparations for the victim’s family.

 

419.          On November 3, 2008, the Commission asked the parties to provide up-to-date information on the status of implementation of the recommendations issued in this case. On December 4, 2008, the State reported that to carry out the first recommendation of the IACHR, it took steps vis-à-vis the following institutions and authorities: Public Ministry; Superintendency of Tax Administration; General Bureau of Migration; Registry of Citizens of the Supreme Electoral Tribunal; Department of Transit of the National Civilian Police; General Bureau of the Prison System; Chief of the Historical Archive of the National Civilian Police; National Registry of Persons; Office of the Prosecutor for Human Rights; Bureau of Criminalistic Investigations; Minister of Education; Minister of National Defense. In addition, the State reported that it took initiatives vis-à-vis Guatemalan non-governmental organizations so that they might provide information on the disappearance of Mr. Oscar Manuel Gramajo López.

 

420.          As regards the second recommendation by the IACHR, the State reported that it has not been possible to contact the petitioners or the victim’s next-of-kin to reach an agreement on reparation and carry out this recommendation.
 

421.          The petitioners did not submit the information requested by the IACHR.

 

422.          As regards the recommendation to conduct an impartial and effective investigation into the forced disappearance of Oscar Manuel Gramajo López, which occurred on November 17, 1980, the Commission values the steps being taken by the Guatemalan State aimed at investigating the facts alleged; nonetheless, it observes that they have not produced the effects required.

 

423.          In view of the foregoing, the IACHR concludes that the State has partially implemented the recommendations noted.

 

Case 10.626 Remigio Domingo Morales and Rafael Sánchez; Case 10.627 Pedro Tau Cac; Case 11.198(A) José María Ixcaya Pixtay et al.; Case 10.799 Catalino Chochoy et al.; Case 10.751 Juan Galicia Hernández et al.; and Case 10.901 Antulio Delgado, Report No. 59/01 Remigio Domingo Morales et al. (Guatemala)

 

424.          In Report No. 59/01 of April 7, 2001, the IACHR concluded that the Guatemalan State was responsible for violating the following rights: (a) the right to life, to the detriment of Messrs. Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, José María Ixcaya Pictay, José Vicente García, Mateo Sarat Ixcoy, Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz Chivalán, Catrino Chanchavac Larios, Miguel Tiu Imul, Camilo Ajquí Gimon, and Juan Tzunux Us, as established at Article 4 of the American Convention; (b) the right to personal liberty in the case of Messrs. Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, and Camilo Ajqui Gimon, as established at Article 7 of the American Convention; (c) right to humane treatment, to the detriment of Messrs. Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac, and Camilo Ajqui Gimon, as established at Article 5 of the American Convention and Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture; in addition, in the case of the attempts to extrajudicially execute Messrs. Catalino Chochoy, José Corino, Abelino Baycaj, Antulio Delgado, Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez, and Orlando Adelso Galicia Gutiérrez, the Commission concluded that the Guatemalan State was responsible for violating the right to humane treatment, as established at Article 5 of the American Convention; (d) the rights of the child in the case of children Rafael Sánchez and Andrés Abelicio Galicia Gutiérrez, as established at Article 19 of the American Convention; (e) judicial guarantees and judicial protection, to the detriment of all the victims, both those extrajudicially executed and those who suffered attempted extrajudicial execution, as established at Articles 8 and 25 of the American Convention. (f) In addition, the IACHR considered the Guatemalan State responsible in all cases for having breached the obligation to respect and ensure the rights protected in the American Convention on Human Rights, as established at Article 1 thereof.

 

425.          According to the background information, the IACHR determined that each of cases 10,626; 10,627; 11,198(A); 10,799; 10,751; and 10,901 referred to complaints in which it was indicated that the alleged material perpetrators of the various human rights violations were the Civil Self-Defense Patrols (PAC) or the Military Commissioners, and after considering the nature of the operations of the PAC and the Military Commissioners, the chronological framework of the various complaints, and the modus operandi used in each of the facts alleged, the Commission decided, in keeping with Article 40 of its Regulations in force at the time, to join the cases and refer to them in a single report.

 

426.          In Report No. 59/01, the Commission made the following recommendations to the States:

 

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

 

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

 

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

 

4. That it effectively prevents a resurgence and reorganization of the Self-defense Civil Patrols.

 

5. That in Guatemala the principles established in the United Nations “Declaration on the right and responsibility of individuals, groups and institutions to promote and protect universally recognized human rights and fundamental freedoms” be promoted and that the necessary measures be taken to ensure that the right of those who work to secure respect for fundamental rights is respected and that their life and personal integrity are protected.

 

427.          On November 3, 2008, the Commission asked the parties for up-to-date information on compliance with the recommendations contained in Report No. 59/01. Next, reference will be made to compliance with the recommendations with respect to each of the cases joined in Report No. 59/01.

 

Case 10.626 Remigio Domingo Morales and Rafael Sánchez (Guatemala)

 

428.          The Inter-American Commission, by resolution 1/06 of April 24, 2006, resolved to rectify Report No. 59/01, published and approved on April 7, 2001, so as to declare that on June 28, 1990, Messrs. Remigio Domingo Morales and Rafael Sánchez were detained by members of the Civil Self-Defense Patrols, and that same day were taken to the Hospital at Huehuetenango to receive care for multiple blunt cutting wounds; both were discharged from the hospital on July 3, 1990. That resolution found that the State violated the right to humane treatment to the detriment of Messrs. Remigio Domingo Morales and Rafael Sánchez.

 

Case 10.627 Pedro Tiu Cac (Guatemala)

 

429.          According to the background information in Case 10,627, on July 2, 1990, in the village of Chiop, Santa María Chiquimula, Totonicapán, Pedro Tiu Cac, a Mayan indigenous man, member of the “Runujel Junam” Council of Ethnic Communities, was attacked while engaged in agricultural work by men in civilian dress, presumably members of the PAC, who detained him and took him to an unknown location. A few days later his corpse was found in a clearing, with signs of torture.

 

430.          On February 18, 2005, the petitioners and the Guatemalan State signed an “Agreement on Compliance with Recommendations” for the purpose of formalizing the State’s obligations with respect to compliance with the IACHR’s recommendations set out in Report on the Merits No. 59/01.  In that agreement, the State recognized its institutional responsibility for the violation of the rights to life, personal liberty, humane treatment, judicial guarantees, and judicial protection, and for breaching its obligation to respect and ensure the rights protected in the American Convention, to the detriment of Pedro Tiu Cac. In addition, the State recognized that the years from 1990 to 1992 were marked by systematic violations of the right to life in the form of forced executions and attacks on physical integrity perpetrated by state agents.

 

431.          As regards reparations, the State recognized that the acceptance of international responsibility for the violations of the victim’s human rights implied the responsibility to pay fair compensation to the petitioners, following the parameters established by domestic and international law. Moreover, the State undertook to make public its recognition of institutional responsibility for the violations of human rights to the detriment of Pedro Tiu Cac, and to publicly apologize to his next-of-kin in a public ceremony. The State also undertook to adopt measures to honor the victim’s memory. On December 9, 2005, the parties signed an agreement on economic compensation.

 

432.          On the measures to make reparation and restore dignity, in 2005 the State made payment of the compensation agreed upon to the victim’s next-of-kin, and on December 21, 2006, the State reported that, at the request of the victim’s next-of-kin, the apologies were made to the family members in private. On July 29, 2007, a ceremony was held placing and unveiling a plaque commemorating Mr. Pedro Tiu Cac at the parish church of the Municipality of Santa María de Chiquimula, department of Totonicapán.

 

433.          On December 4, 2008, the State reported that in order to carry out the fourth recommendation in Report 59/01, decree No. 143-96 was adopted by the Congress of the Republic to repeal Decree 19-86, which had provided the legal foundation for the PACs. In this vein, it notes that the PACs have been legally dissolved; they now exist as organizations of former patrol members whose activity is limited to seeking economic compensation from the State.

 

434.          With respect to the first recommendation, on undertaking a complete, impartial, and effective investigation to determine the circumstances of the extrajudicial execution of the victim, and punishing the persons responsible, the State indicated that on November 28, 2008, the Public Ministry reported that it had located the criminal case file in the Court of First Instance for Criminal Matters, Drug-trafficking, and Crimes against the Environment of the department of Totonicapán and that the court had been asked to forward the case file to the Office of the District Prosecutor of Totonicapán, for the purpose of continuing the investigation, as it is a crime that must be prosecuted at the initiative of the authorities.

 

435.          On December 6, 2008, the petitioners reported that in terms of investigating, prosecuting, and punishing those responsible, the State undertook to promote the necessary actions vis-à-vis the Public Ministry for the purpose of an investigation being carried out into the facts alleged. Nonetheless, they indicated that they have not been informed on progress in the investigation.

 

Case 11.198(A) José María Ixcaya Pixtay et al. (Guatemala)

 

436.          In Case 11,198(A) a total of 12 extrajudicial executions were alleged, said to have occurred in 1990 and 1991 in different parts of Guatemala, and in every case members of the PAC or Military Commission were accused of being the direct perpetrators.  On February 18, 2005, the petitioners and the Guatemalan State signed an “Agreement on Compliance with Recommendations” for the purpose of formalizing the obligations of the State with respect to carrying out the recommendations of the IACHR set forth in Report on the Merits No. 59/01. In that agreement, the State recognized its institutional responsibility for violations of the right to life, the right to personal liberty, the right to humane treatment, and judicial guarantee and judicial protection, and for not having carried out the obligation to respect and ensure the rights protected in the American Convention, to the detriment of José María Ixcaya Pixtay, José Vicente García, Mateo Sarat Ixcoy, Celestino Julaj Vicente, Miguel Tzoy Calel, Pedro Raguez, Pablo Ajiataz, Manuel Ajiataz Chivalan, Catrino Chanchavac Larios, Miguel Tiu Imul, Camilo Ajquí Gimon, and Juan Tzunux Us.  In addition, the State recognized that the years 1990 to 1992 were marked by systematic violations of the right to life in the form of forced executions and attacks on physical integrity perpetrated by state agents.

 

437.          Based on the information provided by the parties, it appears that the State has made economic reparation to the victims’ next-of-kin, yet reparation has not yet been made to the following family members of the victims: Camila Ixcoy Julat, Catarina Ixcoy Ixchop, and José Sarat Tzum. In relation to the measures to restore dignity, a commemorative plaque with respect to Miguel Tiu Imul has yet to be delivered.

 

438.          With respect to the first recommendation on investigation, on December 4, 2008, the State reported on the steps taken in the criminal case into the assassination of José María Ixcaya Pixtay.

 

439.          On December 6, 2008, the petitioners reported that in terms of investigating, prosecuting, and punishing the persons responsible, the State made a commitment to give impetus to the necessary actions vis-à-vis the Public Ministry so that an investigation might be carried out into the facts alleged. Nonetheless, they stated that they have not been informed of any advances in the investigation.

 

Case 10.799 Catalino Chochoy et al. (Guatemala)

 

440.          It appears in Report 59/01 that on January 31, 1991, in the municipality of Santo Domingo Xenacoj, department of Sacatepéquez, a military commissioner and armed men in civilian dress who were driving in vehicles with tinted glass grievously wounded, with firearms, agricultural workers Messrs. Catalino Chochoy, José Corino Teshen, and Abelino Baycaj when they attempted to forcibly recruit them for military service. Once wounded, they were immediately taken to the hospital in Antigua, Guatemala, by family and friends. According to the complaint, these facts were made know to the respective court and the local press.

 

441.          At the request of the Commission, on December 27, 2006, the State reported that it had not been possible to contact the petitioners to reach an agreement on reparation, and thereby carry out the recommendations in Report No. 59/01.

 

442.          In the course of 2008, the IACHR has not received information from the parties. The IACHR expects that the State will continue making the efforts needed to locate the victims’ next-of-kin so as to make adequate reparation to them. In addition, it expects the State to report on progress made into the investigation of the facts that led to the complaint.

 

Case 10.751 Juan Galicia Hernández et al. (Guatemala)

 

443.          The facts alleged indicate that on November 25, 1990, in the hamlet of El Chiltepe, village of Buenos Aires, department of Jutiapa, Mr. Juan Galicia Hernández, along with his sons Andrés Abelino Galicia Gutiérrez (22 years) and Orlando Galicia Gutiérrez (15 years) were attacked with firearms while engaged in agricultural work by a group of men in civilian dress who belonged to the PAC, and suffered critical injuries. This group of men subsequently searched the home of the Galicia Gutiérrez family. The wounded were taken in due course to the regional hospital at Cuilapa, Santa Rosa, by family members and friends. The facts were reported to the corresponding authorities and the press.

 

444.          On December 4, 2008, the State reported on the first recommendation which, according to a report issued by the Public Ministry of November 28, 2008, the case file in which the injured persons are Mr. Juan Manuel Galicia and his sons Andrés Abelino, Orlando, and Adelso Galicia de León, was opened on November 23, 1992; the injured persons were called on to testify on December 12, 2006, but did not appear. The report from the Public Ministry adds that the Bureau of Criminalistic Investigation met with Ms. Leonor Gutiérrez, Juan Manuel Galicia’s wife, who reported that her husband and her son Orlando Galicia de León died on March 31, 1992, as a result of an attack on them by unknown persons. In addition, she reported that on March 17 (possibly 1995) Adelso Galicia de León was attacked and suffered a gunshot wound. She also added that she did not know who the persons were who were involved in the attack of November 25, 1990, which led to the complaint submitted to the IACHR.  

 

445.          With respect to reparation, the State reiterated that it has not been possible to contact the petitioners for the purposes of attaining an agreement on reparation so as to carry out the recommendations contained in Report No. 59/01.

 

446.          The State also reported that to carry out the fourth recommendation of Report 59/01, the Congress of the Republic adopted Decree No. 143-96, repealing Decree 19-86, which had been the legal basis for the PACs. In this vein, it notes that the PACs have been legally dissolved; at present they exist only as organizations of former patrol members whose sole aim is to obtain economic compensation from the State.

 

447.          The petitioners did not forward the information requested by the IACHR.

 

Case 10.901 Antulio Delgado (Guatemala)

 

448.          The facts alleged indicate that on May 29, 1991, in San Rafael Pie de la Cuesta, San Marcos, Mr. Antulio Delgado was at home and was attacked by firearms by military commissioners, as a result of which he was seriously injured. He was immediately taken by family members to the Hospital at San Marcos. The day before the facts the victim had been released by judicial resolution after the same military commissioner who tried to execute him had detained and imprisoned him. The facts were reported to the corresponding authorities and the press.

 

449.          On December 4, 2008, the State reported on the first recommendation that, according to the report issued by the Public Ministry of November 28, 2008, to date it has not been possible to locate, in the courts, a case file on a criminal investigation in which Mr. Antulio Delgado appears as the injured party.

 

450.          In addition, the State reported that in order to carry out the fourth recommendation of Report 59/01, the Congress of the Republic adopted Decree No. 143-96, repealing Decree 19-86, which had provided the legal basis for the PACs. In this context, it notes that the PACs have been legally dissolved, and exist at present as organizations of former patrol members who act only to obtain economic compensation from the State.

 

451.          With respect to the reparations, the State reiterated that it has not been possible to contact the petitioners for the purpose of reaching an agreement on reparation to carry out the recommendations contained in Report No. 59/01.

 

452.          The petitioners did not submit the information requested by the IACHR.

 

453.          In view of the foregoing, the IACHR concludes that the State has partially carried out the recommendations contained in Report 59/01, which covers cases 10,626; 10,627; 11,198(A); 10,799; 10,751; and 10,901.

 

Case 9111, Report No. 60/01, Ileana del Rosario Solares Castillo et al.
           
(Guatemala)

 

454.          In Report on the Merits No. 60/01 of April 4, 2001, the IACHR concluded that the Guatemalan State had violated the rights of Ileana del Rosario Solares Castillo, María Ana López Rodríguez, and Luz Leticia Hernández to life (Article 4), humane treatment (Article 5), personal liberty (Article 7), judicial guarantees (Article 8), and judicial protection (Article 25), all in conjunction with the obligation to ensure the rights protected in the Convention, as established in Article 1(1) of the same Convention. These violations occurred as a result of the detention and subsequent forced disappearance of Ileana del Rosario Solares Castillo, María Ana López Rodríguez, and Luz Leticia Hernández at the hands of agents of the Guatemalan State on September 25, 1982, in the case of Ms. Solares Castillo; and on November 21, 1982, in the case of Ms. López Rodríguez and Ms. Hernández.

 

455.          The Commission made the following recommendations to the State:

 

1. Conduct an impartial and effective investigation into the facts of this complaint to determine the whereabouts and condition of Ileana del Rosario Solares Castillo, María Ana López Rodríguez, and Luz Leticia Hernández, to identify the persons responsible for their disappearance, and to punish them in accordance with the rules of due legal process.

 

2. Take steps to make full amends for the proven violations, including measures to locate the remains of Ileana del Rosario Solares Castillo, María Ana López Rodríguez, and Luz Leticia Hernández, the arrangements necessary to fulfill their families’ wishes regarding the final resting place of their remains, and adequate and timely compensation for the victims’ relatives.

 

456.          On December 4, 2008, the State reported that on December 18, 2007, it had signed an Agreement to carry out the recommendations issued in this case with the representative of the Solares Castillo family. The other two families did not accept the proposal for economic compensation that the State presented to them. The State reported that the points of the agreement signed with Ms. María Olimpia Castillo viuda de Solares, include a ceremony in memory of Ileana del Rosario, planned for December 12, 2008; as well as various measures to honor the victim’s memory, including the installation of a plaque in her honor, and the printing of 5,000 copies that contain an executive summary of the case. The agreement also included the commitment by the State to take appropriate measures to include the issues of the armed conflict and the peace process in the contents on Social Studies taught in primary and basic education. The Agreement included economic compensation that has been paid in part.

 

457.          As regards the families of Ana María López and Luz Leticia Hernández, the State reported that it expects to take up the negotiating process anew in an Agreement on Implementation of Recommendations, but that it had come to a standstill due to problems of internal competence over the mandate to negotiate of the Presidential Commission Coordinating Executive Policy on Human Rights (hereinafter “COPREDEH”).

 

458.          The petitioners reported that the State had breached its duty to investigate, since there had been no significant progress or political will on the part of the high-level authorities in charge of the Public Ministry to carry out a serious and impartial investigation. The petitioners note as an example of this that the request by a family member of the victims, put to the assistant prosecutor in charge of the investigation, to interview the first officer of the former National Police, was denied, adducing “that he was very dangerous, that your life and my own are in danger.”  As regards advances in the process of agreements for carrying out recommendations, the petitioners state their concern insofar as the COPREDEH, the organ that previously was authorized to negotiate the friendly settlement agreements, apparently lacks that power today, due to a measure issued by the Executive branch, in which it is situated. The petitioners interpret this as a lack of political will to carry out the recommendations of the IACHR, and they ask the Inter-American Commission to make an appeal to the present government to give instructions to COPREDEH to make a proposal for carrying out the recommendations made in this case as soon as possible.

 

459.          Based on the foregoing, the Commission concludes that the State has partially carried out the recommendations noted. In addition, it makes an appeal to the Guatemalan State to make progress in the investigation and to implement measures to make full reparation to all the victims.

 

Case 11.382, Report No. 57/02, Workers at the Hacienda San Juan, Finca “La Exacta” (Guatemala)

 

460.          In Report No. 57/02, of October 21, 2002, the IACHR concluded that the Guatemalan State had failed to carry out the obligations imposed on it by Article 1(1) of the Convention, and had violated, in conjunction with Article 1(1) of the Convention, the right to life, enshrined at Article 4 of the Convention, as regards Efraín Recinos Gómez, Basilio Guzmán Juárez, and Diego Orozco; the right to humane treatment, enshrined in Article 5 of the Convention, in relation to Diego Orozco, the whole group of workers/occupants and their families, who suffered the attack of August 24, 1994, and especially the 11 persons who suffered grievous injuries: Pedro Carreto Loayes, Efraín Guzmán Lucero, Ignacio Carreto Loayes, Daniel Pérez Guzmán, Marcelino López, José Juárez Quinil, Hugo René Jiménez López, Luciano Lorenzo Pérez, Felix Orozco Huinil, Pedro García Guzmán, and Genaro López Rodas; the right of freedom of association, enshrined in Article 16 of the Convention, in relation to the workers at the La Exacta farm who organized a labor organization to put forth their labor demands to the landowners and administrators of the La Exacta farm, and to the Guatemalan courts, and who they suffered reprisals for this reason; the right of the child to special protection stipulated in Article 19 of the Convention, as regards the minors who were present during the August 24, 1994 incursion; the right to due process and judicial protection, protected by Articles 8 and 25 of the Convention, in relation to the organized workers who sought access to judicial remedies in relation to their labor demands, and in relation to the victims of the events of August 24, 1994, and their family members who sought justice in relation to those events. In addition, it concluded that the Guatemalan State had violated Articles 1, 2, and 6 of the Convention on Torture in relation to the torture suffered by Diego Orozco.

 

461.          The Commission made the following recommendations to the Guatemalan State:

 

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

 

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

 

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

 

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

 

462.          On November 3, 2008, the Commission asked the parties for up-to-date information on the status of implementation of the recommendations made in this case. The State reported on November 28, 2008, that the Court of First Instance for Criminal Matters, Drug Trafficking and Crimes against the Environment of Coatepeque, was been asked on March 27, 1998, to issue an arrest warrant for several persons accused in the facts that are the subject matter of the case, as they did not appear for the first statement. The State reported that the arrest of one of the accused had been ordered and ratified, yet it had not been possible to locate the rest of the accused. The State added that on May 21, 2008, accused Daniel de Jesús Calderón Ovando, in respect of whom a provisional suspension had been issued had charges against him dismissed by the Court of First Instance for Criminal Matters, Drug-Trafficking and Crimes against the Environment of Coatepeque.

 

463.          As regards the compensation, the State reported that it has worked together with the Guatemalan Fund for Housing (FOGUAVI) to get to the point of signing the agreements needed for the construction of housing on the land that was bought for the beneficiaries in this case. It also reported that steps have been taken vis-à-vis the National Fund for Peace (FONAPAZ: Fondo Nacional para la Paz) for the construction and repair of the schools on the land provided to the beneficiaries along with the communities of Campo Libre and La Ayuda, and to help in the construction of the monument to restore dignity to the victims in keeping with the indications provided by the petitioners.

 

464.          In their communication of December 4, 2008, the petitioners reported that in relation to the actions needed for the administration of justice on labor matters, the State had not carried out that commitment, which is part of the agreement signed June 9, 2003, despite the steps taken vis-à-vis the Ministry of Labor. As regards the investigation, prosecution, and punishment of the persons responsible, the petitioners indicated that the last and only information they have is that presented by the State in its note of March 3, 2006, in which it reports that the Public Ministry sought the arrest of Harry Omar Hernández, on November 27, 2001, a person identified as the direct perpetrator of the shots fired at Diego Orozco, nonetheless the petitioners are still unaware of the results of this order.

 

465.          In relation to compensation, the petitioners reported that the State has paid the amounts due to the families of the victims and the amount for purchasing a plot of land, which has already been bought. They also indicated that meetings have been held with FOGUAVI in order to establish the requirements for the construction of housing for the 96 beneficiaries, for which it is expected that the bases will be established for beginning construction.

 

466.          The petitioners reiterated their observation that thus far no measure has been carried out that guarantees the non-repetition of the violations due to the lack of an adequate investigation, prosecution, and punishment of the persons responsible, as a matter of criminal justice, and due to the failure to take labor-related measures to govern the labor relations and to establish the sanctions corresponding to conduct such as that displayed in this case.

 

467.          Accordingly, the IACHR concludes that the Guatemalan State has partially carried out the recommendations noted.

 

Case 11.312, Report on Friendly Settlement No. 66/03, Emilio Tec Pop (Guatemala)

 

468.          On October 10, 2003, by Report 66/03, the Commission approved a friendly settlement agreement in the case of Emilio Tec Pop. In summary, the petitioners had alleged that on January 31, 1994, Emilio Tec Pop, 16 years of age, was heading from the municipality of Estor, department of Izabal, to the departmental capital of Cobán, Alta Verapaz, and in the early morning hours was detained by unknown individuals. Thirty-two days later, on March 3, 1994, the authorities from the military garrison at Estor handed Emilio Tec Pop over to his family members. The petitioners in this case stated that he was detained against his will and physically and psychologically abused; the solders are alleged to have threatened to kill Emilio, they beat him and cut up his hands with a knife.
 

469.          Through this agreement the State undertook to:

 

a. Pay compensation.  

b. To provide seed capital in the form of basic grains to Emilio Tec Pop with the aim of improving his standard of living.

c. Take steps to get the investigation into these events back on course and to be able to punish those responsible.

 

470.          On December 5, 2008, the petitioners again informed the IACHR that they had lost contact with Mr. Emilio Tec Pop, so they asked the State to try to locate him, through COPREDEH, for the purpose of following through on the commitment to give him an adequate amount of seed capital in the form of basic grains so as to improve his standard of living. The petitioners assert that the failure to locate Mr. Tec Pop should not stand in the way of carrying out the commitment to investigate and see to it that justice is done.

 

471.          The State did not submit the information requested by the IACHR.

 

472.          In view of the foregoing, the Commission concludes that the friendly settlement agreement has been carried out in part. 

 

Case 11.766, Report No. 67/03, Irma Flaquer (Guatemala)

 

473.          On October 10, 2003, by report No. 67/03, the Commission approved a friendly settlement agreement in the case of Irma Flaquer. By way of background, on October 16, 1980, journalist Irma Flaquer Azurdia was kidnapped while driving in a vehicle accompanied by her son Fernando Valle Flaquer in Guatemala City. In the incident Fernando Valle Flaquer was injured; he subsequently died at the Hospital General San Juan de Dios. As of that same date, the whereabouts of Irma Flaquer have not been known. The petitioners also argue that during the investigation of the case by the Guatemalan authorities, it was noted that while the government of that period formally lamented Flaquer’s presumed death, there were few official efforts to investigate the incident. In addition, the minimal efforts made in the official investigation were excused by an amnesty law that in 1985 granted a general pardon, diluting both the responsibility and the participation of some sector of the state apparatus.

 

474.          By means of the friendly settlement agreement, the State recognized its institutional responsibility for the facts of the case and recognized the need “to continue with and vigorously reinforce administrative and legal measures aimed at identifying those responsible, determining the whereabouts of the victim and applying the appropriate criminal and civil punishment.”  In addition, at the third item in that agreement, the State undertook to study the petitions put forth by the petitioners as reparations, which consisted of the following points:

 

(a)         Establishment of a committee to expedite the judicial proceeding composed of two representatives each from COPREDEH and IPS;

 

(b)        Establishment of a scholarship for the study of journalism;

 

(c)         Erection of a monument to journalists who sacrifice their lives for the right to freedom of expression, symbolized in the person of Irma Marina Flaquer Azurdia;

 

(d)        Designation of a wing of a public library as a repository for all material related to the works of the journalist in question;
 

(e)         Naming of a public street after her;

 

(f)         Establishment of a university chair in journalism history;

 

(g)        Writing of letters to the relatives asking for forgiveness;

 

(h)        Organization of a course for the training and social rehabilitation of inmates in the Women's Correctional Centre (COF);

 

(i)         Compilation and publication of a book containing a selection of the best columns, writings and Articles of the disappeared journalist;

 

(j)         Production of a documentary;

 

(k)         Holding of a public ceremony to honor her memory.

 

475.          According to the fourth point of the friendly settlement agreement, the parties agreed “to create a Committee of Impetus and establish March 19, 2001, as the start date of its activities, after a public ceremony to be held in the city of Fortaleza, Brazil, in the context of the semi-annual meeting of the IAPA. As of that date, and for 30 days, the State and the petitioners agree that the Commission should begin the tasks and investigative procedures in the case of Irma Marina Flaquer Azurdia, and establish a timetable and calendar of activities for restoring the dignity of the disappeared journalist, which includes all the forms expressed in the THIRD section of this agreement, it being established that on September 5, 2001 – the birthday of the disappeared journalists – a public ceremony will be held, with the parties involved, in Guatemala City.”

 

476.          In the friendly settlement agreement, the Commission said that it had been informed of the satisfaction of the petitioners – Inter-American Press Association (IAPA) – about the vast majority of the points of the agreement having been carried out.  Nonetheless, the following was still pending: (a) Creation of a scholarship to study journalism; (b) creation of a university professorship on the History of Journalism, and (c) letter to the family members asking their forgiveness. The State’s duty to investigate the forced disappearance of journalist Irma Flaquer Azurdia and the extrajudicial execution of Fernando Valle Flaquer is still pending.

 

477.          On December 2, 2008, the petitioners reiterated their acknowledgement that most of the points of the friendly settlement agreement had been carried out, yet they called attention to the fact that they have not been informed of progress in the investigation and the judicial proceeding for which a special prosecutor was designated to follow up on the case.

 

478.          On December 5, 2008, the State indicated that it has carried out several of the commitments established in the friendly settlement agreement. Specifically, it reported in relation to the creation of a scholarship for studying journalism, that while it has not yet been possible to implement it, the appropriate steps were being taken and that more information would be forthcoming. As regards the creation of a university professorship on History of Journalism, the State reiterated that within the “History of Journalism” course given at the School of Communication Sciences, at the Universidad de San Carlos de Guatemala, a specific section is included on journalist Irma Flaquer.  On the letter to the family members asking forgiveness, the State indicated that the President of the Republic, Álvaro Colom, signed the Letter of Pardon, but had not delivered it because the family members of Irma Flaquer had not been located. Nonetheless, they were contacted and a possible date for the public ceremony in which the letter would be hand-delivered is January 15, 2009. To that end, the State will take the steps necessary for holding the ceremony in the National Palace of Culture and with the persons who will participate.

 

479.          In respect of justice, the State reported that in order to give impetus to the investigation, the Presidential Commission scheduled a working meeting between Irma Flaquer’s next-of-kin and the Public Ministry for the purpose of “having a rapprochement with the prosecutor in charge of the investigation and an exchange of information about the process of the investigation, and for the next-of-kin to contribute any elements that may be used in the investigation.”

 

480.          In view of the foregoing, the Commission concludes that the friendly settlement agreement has been partially implemented.

 

Case 11.197, Report on Friendly Settlement Agreement No. 68/03, Community of San Vicente de los Cimientos (Guatemala)

 

481.          On October 10, 2003, by Report No. 68/03, the Commission approved a friendly settlement report in the case of the “Community of San Vicente de los Cimientos.” In summary, on August 24, 1993, the Centro para la Acción Legal en Derechos Humanos (CALDH) and the Consejo de Comunidades Étnicas Runujel Junam (CERJ), in representation of 233 indigenous families, filed a complaint with the IACHR in which they alleged that during the armed conflict the sector called Los Cimientos, located in Chajul, department of Quiché, where 672 indigenous families lived who were the owners in the sector, was invaded in 1981 by the Guatemalan Army, which established a garrison in the area. After threats of bombardment of the community and the assassination of two community members, the community of Los Cimientos was forced to abandon its lands in February 1982, leaving behind harvests of corn, beans, and coffee, and animals. One month after they fled, some families returned to the place, and found their homes had been burned and their belongings stolen. Subsequently, the community of Los Cimientos was expelled once again in 1994. On June 25, 2001, the community was violently evicted from their lands, of which they were the legal owners, by neighbors and other persons, apparently supported by the Government.

 

482.          In this agreement the State committed to:

 

1. Purchase, on behalf of all the members of the Los Cimientos Quiché community comprising the civic association “Community Association of Residents of Los Cimientos Xetzununchaj,” the San Vicente Osuna estate, and its annex, the Las Delicias estate, which are adjacent to each other and are located in the municipality of Siquinalá, Escuintla department.

 

2. The community of Los Cimientos, through the Community Association of Residents of Los Cimientos Xetzununchaj civic association, and the Government, shall identify and negotiate, within sixty days following the settlement of the community, urgent projects to reactivate its productive, economic, and social capacities, with a view to fostering the community’s development and wellbeing, and in consideration of the agrological study carried out and the record of the landmarks and limits of the San Vicente Osuna estate and its annex, the Las Delicias estate.

 

3. The individual land owners, land holders, and assigns of the estates comprising the Los Cimientos community, as a part of the commitments arising from the government’s purchase on their behalf of the estates known as San Vicente Osuna and its annex, the Las Delicias estate, shall cede their current rights of ownership, holding, and inheritance to the Land Fund, in compliance with the provisions of Article 8(h) of the Land Fund Law, Decree No. 24-99.

 

4. The State shall be responsible for relocating the 233 families of the community of Los Cimientos, Quiché, together with their property, from the village of Batzulá Churrancho, Santa María Cunén municipality, Quiché department, to the San Vicente Osuna estate and its annex, the Las Delicias estate, located in Siquinalá municipality, Escuintla department.

 

5. The government shall provide the resources necessary to feed the 233 families during their transfer to and settlement in their new homes, and it shall accompany them with a duly equipped mobile unit for the duration of the transfer and until such time as a formal health facility is established in their settlement, in order to cater for any emergency that may arise.

 

6. For the community’s location and resettlement, the government of the Republic will provide humanitarian assistance, minimal housing, and basic services.

 

7. The government of Guatemala agrees to organize the creation of a promotion committee that will be responsible for monitoring progress with the legal proceedings initiated against the individuals involved in the events of June 25, 2001, perpetrated against the owners of the Los Cimientos and Xetzununchaj estates.

 

483.          On December 1, 2008, the State reported that most of the commitments had been carried out, and described the actions taken recently to monitor implementation of the commitments assumed by the State. It reported that it continues to carry out the commitments through the mechanism of follow-up roundtables (mesas de seguimiento) already installed on the topics of: assignment of rights; productive projects; education; health; justice; and housing.  In relation to basic services, it was reported that books were delivered to be used in the community library, and uniforms and balls for sports. Information was provided on various meetings held to coordinate the construction of housing on behalf of the petitioners in this case, including efforts to assure the signing of the Cooperation Agreement that should be signed by the Fondo Guatemalteco para la Vivienda (FOGUAVI) and COPREDEH to carry out this commitment. It was reported that a meeting was to be held December 11, 2008. The State reported, on the assignment of rights, that a meeting was held with representatives of the Fondo de Tierras (FONTIERRAS) and the Secretariat for Agrarian Affairs and COPREDEH to discuss the best procedure for adjudicating the farms that belonged to the petitioners in the municipality of Chajul, department of Quiché, to the State. A meeting was scheduled for December 11 to propose specific solutions to carry out this point. 

 

484.          As for the duty to investigate, the State reported that the pertinent case file is identified as MP001/2001/52118, in which Mr. Diego Itzep Pasá appears as the injured party, and the accused are Messrs. Mateo Hernández Sánchez, Baltasar Cana, Juan Caba Sánchez, and Pedro Vi Caba, for the crime of illegal detentions and search in the village of Cimientos Chiul, municipality of San Gaspar Chajul, in the department of El Quiché. Reference C-28-2002 Of. 1 Court of First Instance for Criminal Matters, Drug-Trafficking and Crimes against the Environment of El Quiché.  It reports that on November 20, 2002, a hearing was set for oral and public debate before the court (Tribunal de Sentencia) of El Quiché against Mateo Hernández Sánchez, in which the accused was declared to be in absentia after failing to appear, and the National Civilian Police was ordered to arrest him immediately. On October 29, 2008, the request to locate and arrest Mateo Hernández was put to the National Civilian Police once again. In addition, the State reported that the Office of the Municipal Prosecutor of Nebaj in the department of Quiché forwarded the case file related to the Office of the Prosecutor for Human Rights on September 4, 2008, to continue to take the corresponding measures. COPREDEH reported that it has helped to organize meetings of the Committee of Impetus, created to monitor all those cases presented to the inter-American human rights system in which a commitment is made to undertake an impartial and effective investigation, and to prosecute and punish the persons responsible.

 

485.          On December 2, 2008, the petitioners reported that in 2007 an inter-institutional roundtable was established with representation of different state institutions that could make a contribution to full implementation of the agreement signed. Prior to its installation, they stated that all of the institutions paid a visit to the community, which made it possible to identify the aspects still pending, and the need for a specific agreement to delimit the agreements already signed. The petitioners reported that during 2008, however, no progress was reported in terms of signing this agreement. They emphasize as a point pending implementation item 4, regarding projects to recover the community’s productive capacity. As regards the investigation, the petitioners stated that to date they have not learned of any progress. The petitioners recognized the interest and participation of the representatives of the different institutions involved in the inter-institutional roundtable, thus it is considered important to go forward with the signing of a Specific Agreement. The petitioners also highlighted the willingness of the community members to assign the lands in the zone of Quiché and reiterate the importance of the State providing the mechanisms needed for doing so.

 

486.          In view of the foregoing, the Commission concludes that the friendly settlement agreement has been implemented in part.

 

Petition 9168, Report No. 29/04, Jorge Alberto Rosal Paz (Guatemala)

 

487.          On March 11, 2004, by Report 29/04, the Commission approved a friendly settlement agreement in the petition of “Jorge Alberto Rosal Paz.”  In this matter, on August 12, 1983, Mr. Jorge Alberto Rosal Paz was detained while driving between Teculutan and Guatemala City; his whereabouts are unknown to this day. On August 18, 1983, the IACHR received a petition submitted by Ms. Blanca Vargas de Rosal, alleging that the Guatemalan State was responsible for the forced disappearance of her husband.

 

488.          In the agreement, the State recognized its institutional responsibility for breaching its obligation, under Article 1(1) of the American Convention on Human Rights, to respect and ensure the rights enshrined in the American Convention, in addition to Articles 4, 5, 7, 8, 11, 17, 19, and 25. In addition, it stated that the main basis for reaching a friendly settlement was the search for the truth and the administration of justice, restoring dignity to the victim, reparations resulting from the violation of the victim’s human rights, and strengthening the regional human rights system.

 

489.          On February 15, 2006, Ms. Blanca Vargas de Rosal reported that the only commitment carried out by the State was economic reparation; the commitments regarding education, actions to restore the victim’s name, housing, investigation, and justice were still pending.

 

490.          On December 4, 2008, the State reported that in terms of investigation and justice, according to a report issued by the Public Ministry of November 28, 2008, the case is identified as number MP001-2005-95843. The report from the Public Ministry adds that there were three persons supposedly implicated in the forced disappearance of Mr. Jorge Alberto Rosal Paz, and it details a series of investigative steps and requests for information by that entity to the Ministry of Defense, the Military Social Security Institute, the Ministry of Interior (Gobernación), the Bureau of Criminalistic Investigations of the National Police, the Bureau of Criminalistic Investigations of the Public Ministry, the Superintendency of Tax Administration, the Supreme Electoral Tribunal, and the Civil Registry, among others. It was also reported that a series of statements were taken from Army officers, members of the National Police, and possible witnesses. The State concluded that as regards the commitment related to the investigation, prosecution, and punishment of the persons responsible, the Public Ministry is making efforts to determine the whereabouts of Jorge Alberto Rosal Paz and to hold a trial, with due process, and to punish the persons responsible for these facts.

 

491.          As regards economic reparation, the State reported that it had been made to the beneficiary in 2004.  With respect to restoring the victim’s dignity, on December 20, 2007, a ceremony was held to place and unveil a commemorative plaque, and the Departmental Coordinating Office of the Ministry of Agriculture and Food in Zacapa was designated with the name of Agronomist Jorge Alberto Rosal Paz y Paz.  The State added that the victim’s next-of-kin were in attendance at the ceremony.

 

492.          With respect to the scholarship for María Luisa and Jorge Alberto Rosal Vargas, the victim’s children, the State reported that since 2007 it has not received the information requested of the beneficiaries in order to be able to carry out this part of the agreement. With respect to the commitment to give Ms. Blanca Vargas de Rosal a plot of land located in the municipality of Río Hondo, the State reported that it was not possible to convey the land identified in the friendly settlement agreement because it had been adjudicated to public entities on November 6, 2003, and so it reiterated to the beneficiary the offer to give her the value equivalent to the property’s assessed value for tax purposes.

 

493.          The petitioner did not submit the information requested by the IACHR on November 3, 2008.

 

494.          The Commission concludes that the friendly settlement agreement has been implemented in part.

 

Petition 133/04, Report No. 99/05, José Miguel Mérida Escobar (Guatemala)

 

495.          On October 27, 2005, by Report No. 99/05, the Commission approved a friendly settlement agreement in the petition in the matter of “José Mérida Escobar.”  In summary, on February 19, 2004, the IACHR received a petition submitted by Amanda Gertrudis Escobar Ruiz, Fernando Nicolás Mérida Fernández, Amparo Antonieta Mérida Escobar, Rosmel Omar Mérida Escobar, Ever Obdulio Mérida Escobar, William Ramírez Fernández, Nadezhda Vásquez Cucho, and Helen Mack Chan alleging that the Guatemalan State was responsible for the extrajudicial execution of José Miguel Mérida Escobar on August 5, 1991. According to the petition, Mr. Mérida Escobar worked as Chief of the Homicide Section of the Department of Criminological Investigations of the National Police, and was in charge of the criminal investigation into the assassination of anthropologist Myrna Mack Chang.  In the context of this criminal investigation, on September 29, 1990, he concluded that the main suspect in the assassination of Myrna Mack Chang was a member of the Security Department of the Presidential High Command of the Guatemalan Army. On August 5, 1991, Mr. Mérida Escobar was assassinated with gunshot wounds to the head, neck, left torso, and left arm; he died instantly. 

 

496.          In the friendly settlement agreement, the State recognized its international responsibility for the violation of the rights enshrined in Articles 4, 5, 8, and 25 of the American Convention.  Among the main commitments assumed in friendly settlement agreement No. 99/05 are:

 

To take steps to ensure that the Ministerio Público conducts a serious and effective investigation.

 

To make appropriate arrangements to establish a fellowship for police studies abroad.

 

To look into the feasibility of drawing up a letter of recognition of the international responsibility of the State of Guatemala for the extrajudicial execution of José Miguel Mérida Escobar, which will be circulated to international organizations by way of the Official Gazette and the Internet.

 

To take the relevant steps for the placement of a plaque in honor of police investigator José Miguel Mérida Escobar at the facilities of the Palace of the Civil National Police, in memory of José Miguel Mérida Escobar.

 

To ensure that the appropriate authorities will take steps to determine the viability of changing the name of the Santa Luisa district in the Municipality of San José del Golfo, department of Guatemala, to the name of José Miguel Mérida Escobar.

 

To take steps to ensure that the Executive Agency provides a life pension to the parents of José Miguel Mérida Escobar, Amanda Gertrudis Escobar Ruiz, and Fernando Nicolás Mérida Hernández, and a pension to his youngest son, Edilsar Omar Mérida Alvarado, until he completes his advanced technical studies. 

 

To take the relevant steps to ensure that the Ministry of Public Health provide for psychological treatment for Mrs. Rosa Amalia López, the widow of the victim, and for the youngest of his sons, Edilsar Omar Mérida Alvarado.

 

The Government of the Republic pledges to take the relevant steps to ensure that the Ministry of Education arranges for a scholarship to be granted to the youngest son of the victim, Edilsar Omar Mérida Alvarado.

 

497.          On December 21, 2006, the State reported that on November 30, 2006, the ceremony was held in which a plaque in memory of José Mérida Escobar was unveiled at the new headquarters of the National Civilian Police that was attended, on behalf of the State, by the Director General of the National Civilian Police and the President of COPREDEH. In addition, it reported that the municipality of San José del Golfo approved, by act No. 59-2006, naming the street where the victim lived with his family after him (José Miguel Mérida Escobar). With respect to the institution of the “José Miguel Mérida Escobar” scholarship, the State indicated that its regulation is pending approval. Finally, the State indicated that the victim’s younger child, Edilsar Omar Mérida Alvarado, would be hired as of January through the “My First Job” program.

 

498.          On December 6, 2007, the State reported that it continues following up on the commitments related to granting a lifetime pension to the victims’ parents, as well as the creation of a scholarship for police studies named after Commissioner José Miguel Mérida Escobar.

 

499.          On November 3, 2008, the Commission asked the parties for up-to-date information concerning implementation of the friendly settlement agreement contained in Report No. 99/05.  On December 8, 2008, the petitioners stated that the “José Miguel Mérida Escobar” scholarship for police studies abroad and the lifetime pension for the victim’s parents have yet to be carried out.

 

500.          On December 5, 2008, the State reported that Edilsar Omar Mérida Alvarado gave up the scholarship for technical studies for personal reasons, as well as the offer of a job in the program of the National Youth Council. It also noted that the State has been taking measures to secure medical and psychological care from the Ministry of Public Health and Social Assistance for Rosa Amalia López, the victim’s widow, and for Edilsar Omar Mérida Alvarado. With respect to the lifetime pension, it reported that COPREDEH is awaiting notice of the final resolution from the General Secretariat of the Presidency in order to issue the resolution that will make it possible to implement the pension and to allocate the respective budgetary outlay. As regards the letter of apologies and recognition of international responsibility, this year COPREDEH began efforts vis-à-vis the General Secretariat of the Presidency, so it is being processed. With respect to the institution of the “José Miguel Mérida Escobar” scholarship, the State reiterated that its regulation is pending approval.

 

501.          The Commission observes that none of the parties has submitted information to the IACHR with regard to giving impetus to the investigation into the facts of the case.

 

502.          In view of the foregoing, the Commission concludes that the friendly settlement agreement has been partially implemented.
 

Case 10.855, Report on Friendly Settlement Agreement No. 100/05, Pedro García Chuc (Guatemala)

 

503.          In Report No. 5/00 of February 24, 2000, the Commission concluded that the Guatemalan State was internationally responsible for the arbitrary execution of Mr. Pedro García Chuc and the violation of his rights to life, judicial protection, and judicial guarantees, among other rights enshrined in the American Convention. In this case, on March 5, 1991, at kilometer 135 of the route to the Western region, department of Sololá, several members of the state security forces captured Mr. García Chuc in the early morning hours. Two days later, the victim’s corpse was located at the same place where he was captured, with several gunshot wounds. It is presumed that the extrajudicial execution was due to his work as president of the Cooperativa San Juan Argueta R.L., as well as his active participation in obtaining benefits for his community. The petition was presented by the victim’s next-of-kin, and was one of a total of 46 petitions received by the Commission in 1990 and 1991 in which the State was allegedly responsible for the extrajudicial execution of a total of 71 men, women, and children, including Mr. García Chuc. After processing the cases before the IACHR, the Commission decided, in keeping with Article 40 of its Regulations, to join those cases and resolve them together.

 

504.          In that report, the IACHR recommended to the Guatemalan State that it:

 

1. Carry out a complete, impartial, and effective investigation to determine the circumstances of the extrajudicial executions and related violations in the cases of the victims named in section VII, and to punish the persons responsible pursuant to Guatemalan law.

 

2. Adopt the measures necessary for the family members of the victims identified in paragraph 289 to receive adequate and timely reparation for the violations established herein.

 

505.          On April 13, 2000, the Guatemalan State issued a formal statement in which it recognized its international responsibility for breaching Article 1(1) of the American Convention, accepted the facts set forth in Report No. 5/00 of the Commission, and undertook to make reparation to the victims’ next-of-kin, based on the principles and criteria established in the inter-American human rights system. It also undertook to promote investigations into the facts, and, to the extent possible to prosecute the persons responsible. Finally, it undertook to report on progress in carrying out its obligations. On that same date the IACHR published Report No. 39/00.

 

506.          On February 18, 2005, the State and the petitioners signed an “Agreement on Implementation of Recommendations. Case 10,855. Pedro José García Chuc,” and on July 19, 2005, they signed an agreement on compensation.

 

507.          On December 6, 2008, the petitioner reported that according to what is established in the agreement signed by the parties, the following commitments assumed by the State have yet to be carried out: (a) Granting use rights to a real property; (b) technical training for the García Yax and García Chic families; and (c) investigating, prosecuting, and punishing the persons responsible for the extrajudicial execution of Pedro José García Chuc. On December 5, 2007, the State reported that it continued taking steps to carry out the pending obligations.

 

508.          The State did not submit the information requested by the IACHR.

 

509.          In view of the foregoing, the Commission concludes that the friendly settlement agreement has been partially implemented.
 

Case 11.171, Report No. 69/06, Tomas Lares Cipriano (Guatemala)

 

510.          In Report No. 69/06 of October 21, 2006, the IACHR concluded that the Guatemalan State was responsible for: (a) the violation of the human right to life in keeping with Article 4 of the American Convention, in relation to Article 1(1) of that instrument, due to the extrajudicial execution, by state agents, on April 3, 1993, of Tomas Lares Cipriano; (b) the violation of the human rights to humane treatment, judicial guarantees, and judicial protection, enshrined at Articles 5, 8, and 25 of the American Convention, in relation to Article 1(1) of that instrument, for the events that occurred April 3, 1993, and their consequences of impunity, to the detriment of Tomas Lares Cipriano and his next-of-kin; and (c) consequently, for the breach of the obligation to respect the human rights and guarantees, imposed by Article 1(1) of the American Convention. The victim, Tomás Lares Cipriano, was a farmer, 55 years of age, a member of the Consejo de Comunidades Étnicas "Runujel Junam" (CERJ), and of the Comité de Unidad Campesina (CUC). As an active community leader in his town, Chorraxá Joyabaj, El Quiché, he had organized numerous demonstrations against the presence of the army in his zone, and against the apparently voluntary but in fact compulsory service by the campesino farmers in the so-called Civilian Self-Defense Patrols (PAC). In addition, he had filed numerous complaints in relation to the threats against the local population by the Military Commissioners who acted as civilian agents of the army, patrol chiefs, and, on occasion, as soldiers. On April 30 of that same year, Tomas Lares Cipriano was ambushed and assassinated by Santos Chich Us, Leonel Olgadez, Catarino Juárez, Diego Granillo Juárez, Santos Tzit, and Gaspar López Chiquiaj, members of the PAC.

 

511.          The IACHR made the following recommendations to the Guatemalan State:

 

1. To carry out a complete, impartial and effective investigation of the events reported, to judge and punish all those responsible, either as abettors or perpetrators, for human rights violations with prejudice to Tomás Lares Cipriano and his family members.

 

2. To make reparation for the violation of the aforementioned rights as established in paragraph 128 of this report.

 

3. To effectively prevent the resurgence and reorganization of the Civil Self-defense Patrols.

 

4. To adopt the necessary measures to avoid similar events in the future, pursuant to the duty of prevention and guarantee of fundamental human rights, recognized by the American Convention.

 

512.          On November 3, 2008, the Commission asked the parties for up-to-date information on the status of implementation of the recommendations issued in its Report 69/06. The petitioners did not submit the information requested.

 

513.          On December 4, 2008, the State reported, regarding the first recommendation, that the last action in the proceeding against the persons responsible for the assassination of Tomas Lares Cipriano was the judgment against Santos Chich Us handed down by the Tribunal de Sentencia of Quiché on November 5, 1996. It reported that enforcement of the arrest warrants for Messrs. Diego Granillo Juárez, Santos Tzit, and Gaspar López was still pending.

 

514.          The State reiterated the impossibility of carrying out the second recommendation because the victim’s next-of-kin was not interested in signing an agreement on implementation of the recommendation or in receiving any economic compensation. In this respect, the State indicated that the lack of an agreement with the victim’s next-of-kin is an obstacle to carrying out the recommendations in this case, yet it reiterated its position that it was ready and willing to carry them out.

 

515.          Mindful that the State has reiterated its intent to carry out the recommendations issued in this case, the Commission observes that the first, third, and fourth recommendations of Report No. 69/06, can and should be carried out by the State, even without the participation or acquiescence of the victim’s next-of-kin. As regards the second recommendation, the State is urged to create a special fund to make reparation to the victim’s next-of-kin in the event that they accept reparation in the future.

 

516.          Accordingly, the IACHR concludes that the Guatemalan State has partially carried out the recommendations indicated.

 

Case 11.658, Report No. 80/07, Martín Pelicó Coxic (Guatemala)

 

517.          In Report No. 48/03 of October 8, 2003, the IACHR concluded that the Republic of Guatemala was responsible for: (1) violating Article 4 of the American Convention on Human Rights to the detriment of Martín Pelicó Coxic, in relation to Article 1(1) of said instrument; (2) violating Articles 5, 8, and 25 of the American Convention on Human Rights, in relation to Article 1(1) of that instrument, to the detriment of Martín Pelicó Coxic and his next-of-kin. The Commission determined that the responsibility of the Guatemalan State emanated from the extrajudicial execution perpetrated on June 27, 1995, by state agents, of Mr. Martín Pelicó Coxic, a Mayan indigenous member of an organization for the defense of the human rights of the Maya people, as well as the injuries inflicted on the victim and his next-of-kin by virtue of the facts mentioned and the subsequent impunity for the crime.

 

518.          The Commission made the following recommendations to the Guatemalan State:

 

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.

 

519.          Subsequent to that report, on July 19, 2005, the parties to the present case signed an “Agreement on implementation of the recommendations in Report No. 48/03.” The IACHR has been pleased to note the major advance in carrying out the recommendations; accordingly, on October 26, 2006, during its 126th regular period of sessions, the Commission decided not to present the case to the Inter-American Court of Human Rights, but rather to monitor implementation of the recommendations through the mechanism enshrined in Article 51 of the American Convention.

 

520.          With this purpose, on March 8, 2007, Report No. 12/07 was approved (Article 51 report) in which the IACHR reiterated its recommendations to the Guatemalan State, and also recommended that the obligations pending in terms of reparations to the victim’s next-of-kin be carried out.

 

521.          Finally, on October 15, 2007, the IACHR approved Report No. 80/07, by which it ordered the publication of the above-mentioned reports. On this occasion, once against the Commission expressed that it was pleased by the implementation of most of the commitments assumed in the “Agreement on implementation of the recommendations in Report No. 48/03,” but it also reiterated to the Guatemalan State recommendations 2 and 3 set out in Report 12/07 and recommended that it complete the investigation, in an impartial and effective matter, into the facts alleged, so as to prosecute and punish the persons responsible, both the direct perpetrators and the masterminds, of the violations of human rights committed to the detriment of Martín Pelicó Coxic and his next-of-kin.

 

522.          On November 3, 2008, the IACHR asked the parties for up-to-date information on the status of implementation of the recommendations made in the instant case. By communication received December 5, 2008, the Guatemalan State provided the Commission data regarding progress in the investigation, noting that while these are procedural acts that have been consummated prior to the approval of the final report, no mention is made of them in it: it reported that on July 18, 2007, the criminal court of first instance (Tribunal de Sentencia Penal) acquitted Pedro Acabal Chaperón, who had been accused of the crime of homicide to the detriment of Mr. Martín Pelicó Coxic.

 

523.          With respect to this matter, the State noted: “… In the commitment related to the investigation, prosecution, and punishment of the persons responsible, the respective investigation has been carried out, a trial was already held, with due process, in which the injured party herself totally abandoned both the criminal and civil actions, on behalf of accused Pedro Acabal Chaperón, which contributed to the resolution of the case being an acquittal.…”

 

524.          In addition, the State noted that to carry out the second recommendation made in Report 12/07, the Congress of the Republic passed Decree No. 143-96, repealing Decree 19-86, which had provided the legal basis for the PACs.  In this context, it indicated that the PACs have been legally dissolved, and now exist as organizations of former patrol members who act only for the purpose of securing economic compensation from the State.

 

525.          With respect to the recommendation made at item 3 of Report 12/07, the State reported that for the purposes of carrying it out, a forum was held on September 22, 2005, under the name “Weaknesses and Challenges of the Guatemalan Justice System,” with the presence of outstanding professionals, including the President of the Association of Judges of the Fourth Chamber of the Criminal Branch; the President of COPREDEH; the Specific Advisor to the Ministry of Interior, and then vice-minister at the Ministry of Interior; Advisor for Human Rights at the Public Ministry; the Coordinator of the Training Unit of the Institute for Criminal Public Defense and President of the Bar Association (Colegio de Abogados); and one member of the Supreme Court of Justice.

 

526.          In addition, in the most recent communications from the petitioners the problem was raised related to obtaining a scholarship for one of the victim’s children, Eliseo David Pelicó Hernández; by a brief submitted on June 6. 2007, the State reported that while the beneficiary of the scholarship is the same person who gave it up; at a meeting held May 8, he requested that it be granted to him once again, yet when the State initiated the necessary steps with the Institute at which the beneficiary expressed interest in studying, the area of study to which Eliseo David Pelicó aspires to study was no longer offered at that institution. In the face of this situation, the State proposed that he participate in the My First Job program (Mi Primer Empleo) of the National Youth Council, which Eliseo David Pelicó entered, but after he was paid one month retroactive, he withdrew from the program without giving any explanation.

 

527.          The petitioners submitted information to the IACHR on December 16, 2008. In that communication, they recognized that while the State has carried out most of the commitments assumed in the Agreement on implementing the recommendations, they noted that there are still two points pending: the investigation and punishment of the persons responsible, and granting the scholarship to Eliseo David Pelicó.

 

528.          They stated that as regards the first, they have no information that the State has made any current communication regarding progress in the investigation. Similarly, they noted that while the victim’s family has ceased pushing the judicial proceedings, which was already known to this Commission, this does not stand in the way of the State continuing the relevant investigations for the purposes of identifying the persons responsible and reaching a clear determination of the historical truth of the facts, itself an obligation that the petitioners consider the State has not followed through on.

 

529.          In addition, the petitioners made reference to the State’s non-compliance in respect of the scholarship that it had offered to Eliseo David Pelicó. They emphasized that he is now working transporting passengers, and has been unable to begin his studies, and has not been receiving the monthly scholarship of 800 quetzals.

 

530.          Accordingly, the IACHR concludes that the Guatemalan State has partially carried out the recommendations noted.

 

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