REPORT Nº 54/96
December 6, 1996
On September 22, 1982, the Inter-American Commission on Human
Rights (the "Commission") received a communication denouncing
the alleged abduction and disappearance of Mr. Luis Gustavo Marroquín
by agents of the Guatemalan State. Mr. Marroquín, a Guatemalan citizen, was an accountant with
the National Agricultural Development Bank (Banco Nacional de Desarrollo
complaint states that Mr. Marroquín was abducted in the vicinity of
According to the complaint, on August 9, 1982, at 7:50 a.m., Mr.
Luis Gustavo Marroquín was abducted in the parking lot of the National
Agricultural Development Bank, as he was arriving at work that morning.
The complaint states that the abductors wore civilian dress, were
heavily armed and that they were in a red Mitsubishi van and in a Datsun
car, both with tinted windows.
The complaint states that Mr. Luis Gustavo Marroquín is still
disappeared, and that the Guatemalan State has never investigated and
clarified the disappearance. The
action taken on a petition of habeas corpus filed by Mr. Marroquín's
next-of-kin on August 11, 1982, to ascertain his whereabouts, was
defective and ineffective.
PROCESSING BEFORE THE COMMISSION
The Commission began to process the complaint on October 7, 1982,
registering it as case 8075.
That same day, pursuant to Article 48.1.a of the American
Convention, the Commission forwarded to the Guatemalan Government the
pertinent parts of the complaint, with the request that the Government
provide information on the facts reported in that communication, in
accordance with Article 34 of its Regulations (then Article 31).
When it received no response from the Guatemalan Government, the
Commission repeated its request on May 17, 1984, and gave the Government
another thirty days in which to reply, mentioning the possible
application of Article 42 (then Article 39) of the Commission's
Regulations, whereby the facts denounced are presumed to be true if no
reply is forthcoming.
On February 19, 1985, since no information had been received from
the Government of Guatemala, the Commission once again requested
information on the case, and gave the Government another thirty days,
again mentioning the possible application of Article 42 of its
When the Guatemalan Government failed to reply, the Commission
reiterated its request to the Government on June 15, 1985 and once again
warned of the possible application of Article 42 of its Regulations.
Again, the Commission received no response from the Guatemalan
Government in connection with this case.
To date, the Guatemalan Government has never provided any of the
information requested by the Commission.
conclusion from the background information examined is that the
Commission is competent to entertain the complaint filed in the instant
case, since it alleges facts that would be violations of the rights of
Luis Gustavo Marroquín recognized in Articles 1, 3, 4, 5, 7, 8 and 25
of the American Convention on Human Rights.
Commission considers that there are no grounds to argue that the
complaint is manifestly groundless or out of order, or that it
substantially reproduces a petition already examined or one pending
before some other international proceeding for settlement.
(Articles 46.1.c and 47.c,d of the American Convention).
for exhaustion of domestic remedies, the Government of Guatemala has
never replied to the Commission's requests for information on this
matter. The purpose of the
rule requiring exhaustion of domestic remedies is to allow the State an
opportunity to settle the problem in accordance with its domestic laws
before being confronted with an international proceeding.
Therefore, given the Government's silence, the Commission
presumes that it is, by implication, waiving its right to invoke the
rule of exhaustion of domestic remedies.
from the implied waiver of the requirement of exhaustion under Article
46.1.a of the American Convention, the Commission considers that in the
case of Mr. Luis Gustavo Marroquín, the domestic remedies have been
ineffective, have not provided the guarantees of due process and have,
without justification, failed to provide any decision regarding his
person. These factual
situations are contemplated in Article 46.2 of the Convention as
exceptions to the requirement of exhaustion of domestic remedies set
forth in Article 46.1.a.
effect, the conclusion from the notes that the petitioners sent to the
Commission is that the domestic remedies in Guatemala have been
unsuccessful in solving the disappearance of Mr. Luis Gustavo Marroquín.
On August 11, 1982, Mr. Marroquín's next-of-kin filed a petition
of habeas corpus to ascertain his whereabouts.
Because of the petition, the Ministry of Government ordered the
National Police to investigate Mr. Marroquín's disappearance, but the
order was never obeyed. The
petitioners allege that no action was ever taken on the petition of habeas
corpus that they filed seeking an investigation to determine the
whereabouts of Luis Gustavo Marroquín.
petitioners also state that they made other written overtures to the
Ministry of Government and filed a complaint with the Department of
Technical Investigations of the National Police and other police
agencies and prisons. None
of these measures had any result.
October 18, 1982, Luis Gustavo Marroquín's wife and mother filed a
request, in writing, for a meeting with then President of the Republic,
Efraín Ríos Montt, who informed that their request for a meeting would
not be granted.
of the actions filed by relatives of Mr. Marroquín was effective in
securing protection of the rights which were violated.
The Guatemalan State did not act on the petition of habeas
corpus by conducting an efficient and adequate investigation based
on due process of law, that would ascertain the whereabouts of Mr.
Marroquín and the identity of those responsible for his disappearance.
This is consistent with a pattern of ineffective legal remedies,
especially in relation to the remedy of habeas corpus, which the
Commission found in Guatemala at the time the events denounced occurred.
Government of Guatemala has never disputed the abduction and
disappearance of Mr. Marroquín nor the fact that these were perpetrated
by State agents. Since the
time the pertinent parts of the complaint were first forwarded to the
Government, and despite repeated requests, the Government has never
provided any information in connection with this case, thereby violating
its international obligation under Article 48 of the American
Convention. Therefore, the
Commission considers that the presumption allowed under Article 42 of
its Regulations applies in the instant case.
Article 42 of the Commission's Regulations provides that the
facts reported in the petition whose pertinent parts have been
transmitted to the Government in reference shall be presumed to be true
if, during the time period set by the Commission, the Government has not
provided the pertinent information requested, as long as other evidence
does not lead to a different conclusion.
In this case, the information which exists does not contradict
the version of the facts alleged in the complaint but rather supports
that version of events.
the manner and characteristics of Mr. Marroquín's abduction, the
Commission can reasonably infer that it was perpetrated by agents of the
Guatemalan State, since those were the same methods used in other
abductions and unlawful detentions in which State security agents were
involved. At the time the
events denounced occurred, the Commission had confirmed the presence of
an "extraordinary number" of cases like Mr. Marroquín's,
committed by security agents.
The abductions and unlawful detentions generally were carried out
by groups of heavily armed individuals, who took their victims from
their places of work or their homes and told no one of the reasons for
the alleged arrest or where the victim was being taken.
The abductors acted in plain view and generally traveled in
vehicles with tinted windows.
Luis Gustavo Marroquín was abducted in precisely that manner.
on the foregoing, the Commission concludes that on August 9, 1982, Mr.
Luis Gustavo Marroquín was abducted by agents of the Guatemalan
Government. His whereabouts
have remained unknown since the time of his kidnapping.
Conclusions on points of law
description of what Luis Gustavo Marroquín suffered on August 9, 1982,
fits the definition of "forced disappearance" which has been
developed by the jurisprudence of the Commission and the Inter-American
Court of Human Rights and which was incorporated into Article II of the
Inter-American Convention on Forced Disappearance of Persons.
Inter-American Court of Human Rights (the "Court" or the
"Inter-American Court") has held that "the forced
disappearance of human beings is a multiple and continuous violation of
many rights under the Convention that the States Parties are obligated
to obligated to respect and guarantee."
The preamble to the Inter-American Convention on Forced
Disappearance of Persons reaffirms that forced disappearance of persons
"violates numerous non-derogable and essential human rights
enshrined in the American Convention on Human Rights, in the American
Declaration of the Rights and Duties of Man, and in the Universal
Declaration of Human Rights."
on these principles, the Commission examines the human rights that were
violated as a result of the forced disappearance of Luis Gustavo Marroquín.
The right to juridical personality
disappearance of Mr. Luis Gustavo Marroquín constitutes a violation of
his right to recognition as a person before the law protected by Article
3 of the American Convention on Human Rights.
When Mr. Marroquín was disappeared by agents of the Government,
he was necessarily placed outside of and excluded from the juridical and
institutional order of the State. This
exclusion had the effect of denying recognition of the very existence of
Mr. Marroquín as a human being entitled to be recognized as such before
The right to life
Luis Gustavo Marroquín is still a disappeared person.
The Inter-American Court has held that, "[t]he practice of
disappearances often involves secret execution without trial, followed
by concealment of the body to eliminate any material evidence of the
crime and to ensure the impunity of those responsible.
This is a flagrant violation of the right to life."
Moreover, the context in which the disappearance occurred and the
fact that fourteen years later Mr. Marroquín is still a disappeared
person, allow the Commission to reasonably conclude that Mr. Marroquín
these reasons, the Commission concludes that the facts denounced
constitute a violation of Mr. Luis Gustavo Marroquín's right to life,
recognized in Article 4 of the American Convention on Human Rights.
The right to humane treatment
Article 5 of the American Convention, every person has the right to have
his physical, psychological and moral integrity respected.
The facts denounced in the instant case constitute a violation of
Mr. Luis Gustavo Marroquín's right to humane treatment.
Inter-American Court has held that, "prolonged isolation and
deprivation of communication are in themselves cruel and inhuman
treatment, harmful to the psychological and moral integrity of the
person and a violation of any detainee's right to respect for his
inherent dignity as a human being.
Such treatment, therefore, violates Article 5 of the Convention,
which recognizes the right to the integrity of the person."
The right to personal liberty
Inter-American Court has held the following with regard to the violation
of this right: "The kidnapping of a person is an arbitrary deprivation
of liberty, and an infringement of the detainee's right to be taken
without delay before a judge and to invoke the appropriate procedures to
review the legality of the arrest, all in violation of Article 7 of the
Convention which recognizes the right to personal liberty."
abduction and disappearance of Luis Gustavo Marroquín, which the
Commission has established, constitute a violation of his right to
personal liberty, recognized in Article 7 of the American Convention.
The right to due process of law and to judicial protection
Articles 8 and 25 of the American Convention, everyone has the right to
recourse to a competent court or tribunal for protection against acts
that violate his rights, and the State is obligated to provide the
minimum guarantees for the determination of the individual's rights.
The Guatemalan State's domestic guarantees have not provided what
is essential to the fulfillment of these rights, and have therefore
violated the American Convention.
25.1 contains the principle recognized in the international law of human
rights whereby the instruments or procedural means to guarantee such
rights must be effective. It
is not sufficient that a state's legal system formally recognizes the
remedy in question; instead, it must develop the possibilities of an
effective remedy, substantiated in accordance with the rules of due
process of law.
domestic remedies of the Guatemalan State have not provided adequate and
effective recourse that fulfills the minimum guarantees and produces a
decision as to the rights of Luis Gustavo Marroquín, establishes his
whereabouts, and determines the identity and responsibility of the
authors of the abduction.
the instant case, the failure of the domestic remedies not only
justifies the finding that the petitioners are not obligated to file and
exhaust such remedies, but also implicates the Guatemalan State in a
violation of the rights to judicial protection and to due process of
law, recognized in Articles 25 and 8 of the American Convention.
The obligation to respect and ensure rights
Guatemalan State has failed to honor its obligation under Article 1.1 of
the American Convention to "respect the rights and the freedoms
recognized [therein] and to ensure to all persons subject to [its]
jurisdiction the free and full exercise of those rights and
the violations of the rights recognized in Articles 3, 4, 5, 7, 8 and 25
are imputable to the Guatemalan State.
the terms of Article 1.1, the first obligation of the States Parties of
the American Convention is to respect the rights and freedoms
determine what manner of exercise of public power violates the
obligation to respect rights under Article 1.1, the Inter-American Court
has held that, "under international law, a State is responsible for
the actions of its agents undertaken in their official capacity and for
their omissions, even when those agents act outside the sphere of their
authority or violate internal law."
The Court further held that "any violation of rights
recognized by the Convention carried out by an act of public authority
or by persons who use their position of authority is imputable to the
Commission has concluded that the abduction of Luis Gustavo Marroquín
on August 9, 1982, his subsequent disappearance, and the subsequent
denial of justice, which constitute violations of rights recognized in
Articles 3, 4, 5, 7, 8 and 25 of the Convention, were committed by
Government agents using their position of authority.
Therefore, in keeping with the jurisprudence of the Court, the
Guatemalan State has violated its obligation under Article 1.1, to
respect the rights of Luis Gustavo Marroquín recognized in the American
second obligation emanating from Article 1.1 is to ensure the free and
full exercise of the rights and freedoms recognized in the Convention.
"This obligation implies the duty of the States Parties to
organize a governmental apparatus and, in general, all the structures
through which public power is exercised, so that they are capable of
juridically ensuring the free and full enjoyment of human rights.
As a consequence of this obligation, the States must prevent,
investigate and punish any violation of the rights recognized by the
Commission has concluded that the Guatemalan State's domestic remedies
have failed to investigate the human rights violations suffered by Mr.
Marroquín, the parties responsible for those violations have not been
punished, and the consequences of those violations have not been
redressed. Therefore, the
Commission concludes that the Guatemalan State also violated Article 1.1
because it failed to guarantee to Luis Gustavo Marroquín and his family
the exercise of their rights.
TRANSMISSION OF REPORT 18/96 TO THE GOVERNMENT
Report 18/96 was approved by the Commission on April 30, 1996, during
its 92nd Regular Session, and was transmitted to the Government of
Guatemala on May 27, 1996, with a request that it provide information as
to the measures that had been taken to resolve the situation denounced
within a period of 60 days. At the same time, the Commission informed the parties that it
placed itself at their disposal for a friendly settlement, based on
respect for the human rights set forth in the American Convention, and
set a period of 30 days for the parties to advise whether they were
willing to participate in such a procedure.
means of a note dated July 22, 1996, the Government of Guatemala
requested that the period within which it was to provide its response to
the Commission be extended by 60 days, given that various State
institutions were in the process of gathering relevant information.
In a note of July 31, 1996, the Commission informed the
Government that it had been granted an additional 70 days to provide
information as to the measures it had taken. The Commission also transmitted to the Government copies of
pertinent documents from the case file for its information.
Government's response, dated October 2, 1996, indicated that the
Presidential Coordinating Commission of Executive Policy in Human Rights
Matters had requested the collaboration of the Ministers of National
Defense and Government in investigating the facts denounced, as well as
that of the Attorney General's Office.
A Prosecutor assigned to investigate had attempted, without
success, to locate any relevant files within the criminal justice
system. He had also
interviewed the mother of the victim and the Chief of Security of the
National Bank of Agricultural Development, who corroborated certain
basic facts. As a result of
his interview with the victim's mother, the Prosecutor had requested
that the Transit Department of the National Police provide information
on five license plate numbers dating back to 1982.
The Prosecutor also went to the office of the Mutual Support
Group to inquire whether they could provide information on the
disappearance from their files. However,
representatives of the Group informed him that, three years before, a
number of files had been taken from their office, most likely including
those pertaining to this case. The
Government manifested concern with respect to the facts denounced, but
indicated that the National Police and Public Ministry did not have any
information in its files. The
Government reported that the Attorney General had therefore initiated an
investigation, and that it would opportunely inform the Commission as to
its results, and "thus the Government considers that for the moment
it is not possible to accede to a friendly settlement and appreciates
the offer that was made."
Government of Guatemala has provided no further information with respect
to this case.
light of the information and observations provided above, the Commission
concludes that the Guatemalan State has violated Luis Gustavo Marroquín's
rights to life, humane treatment, personal liberty, due process of law
and judicial protection, all recognized, respectively, in Articles 3, 4,
5, 7, 8 and 25 of the American Convention on Human Rights, in relation
to Article 1.1 thereof.
1 of the American Convention sets forth the undertaking of States
Parties first, to respect the rights and freedoms recognized, and
second, to ensure the free and full exercise of those rights.
The latter obligation refers to the State's duty to prevent,
investigate and punish human rights violations.
The consequence of this duty is the continuing responsibility of
the State to "attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation of
human rights." (Velásquez
Rodríguez Case, Judgment of July 29, 1988, para. 166.)
accordance with the foregoing analysis, the Commission recommends to the
State of Guatemala that:
It conduct an impartial and effective investigation of the facts
denounced that determines the fate of Luis Gustavo Marroquín, that
establishes the identity of the authors of his disappearance, and that
leads to the submission of those responsible to the appropriate judicial
It adopt measures to make full reparation for the proven
violations, including taking steps to locate the remains of Luis Gustavo
Marroquín; making the arrangements necessary to facilitate the wishes
of his family as to an appropriate final resting place; and compensating
his family members.
48. To publish this report, pursuant to Article 48 of the Commission's Regulations and Article 51.3 of the Convention, because the Government of Guatemala did not adopt measures to correct the situation denounced within the time period.
See Inter-American Court of Human Rights Cases:
Velásquez Rodríguez, Preliminary Objections, Judgment of
June 26, 1987, par. 88; Fairén Garbi and Solís Corrales,
Preliminary Objections, Judgment of June 26, 1987, par. 87; and Godínez
Cruz, Preliminary Objections, Judgment of June 26, 1987, par. 90.
The Inter-American Court of Human Rights has stated that:
"in keeping with the object and purpose of the
Convention and in accordance with an interpretation of Article
46(1)(a) of the Convention, the proper remedy in the case of forced
disappearance of persons would ordinarily be habeas corpus, since
those cases require urgent action by the authorities.
Consequently, `habeas corpus would be the normal means of
finding a person presumably detained by the authorities, of
ascertaining whether he is legally detained and, given the case, of
obtaining his liberty' (Velásquez Rodríguez Case, Judgment of July
29, 1988, . . . paragraph 65; Godínez Cruz case, Judgment of
January 20, 1989, . . . paragraph 68; and Fairén Garbi and Solís
Corrales case, Judgment of March 15, 1989, . . . paragraph
Delgado y Santana Case, Preliminary Objections, Judgment of January
21, 1994, par. 64.
The Inter-American Court of Human Rights has confirmed that,
"the silence of the accused or elusive or ambiguous answers on
its part may be interpreted as an acknowledgment of the truth of the
allegations, so long as the contrary is not indicated by the record
or is not compelled as a matter of law."
Velásquez Rodríguez Case, Judgment of July 29, 1988, par.
See Annual Report of the Inter-American Commission on Human Rights
1985-86, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, 26 September 1986, p.
37-38; Annual Report of the Inter-American Commission on Human
Rights 1982-83, OEA/Ser.L/V/II.61, doc. 22 rev. 1, 27 September
1983, p. 46-48; Annual Report of the Inter-American Commission on
Human Rights 1980-81, OEA/Ser.L/V/II.54, doc. 9 rev. 1, 16 October
1981, p. 113-14; Velásquez Rodríguez Case, Judgment of July 29,
1988, par. 147; Inter-American Convention on Forced Disappearance of
Persons, Article II. The Inter-American Convention on Forced Disappearance of
Persons entered into force on March 28, 1996, after Argentina and
Panama deposited their instruments of ratification with the General
Secretariat of the OAS on February 28, 1996.
Guatemala has signed, but not yet ratified, that Convention.
See Declaration on the Protection of All Persons from Enforced
Disappearance, Art. 1.2, characterizing forced disappearance as
"a violation of the rules of international law guaranteeing, inter
alia, the right to recognition as a person before the law."
United Nations General Assembly Resolution 47/133, December
See Inter-American Court of Human Rights Cases:
Velásquez Rodríguez, Preliminary Objections, Judgment of
June 26, 1987, par. 91; Fairén Garbi and Solís Corrales,
Preliminary Objections, Judgment of June 26, 1987, par. 90; and Godínez
Cruz, Preliminary Objections, Judgment of June 26, 1987, par. 93.