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OEA/Ser.L/V/II.98 REPORT
Nº 21/98 CASE
11.435 JOSÉ
SUCUNÚ PANJOJ GUATEMALA March
2, 1998
I.
BACKGROUND
The Facts Alleged
1.
On January 18, 1995, the Inter-American Commission on Human Rights
(hereinafter "Commission") received a communication denouncing the
October 29, 1994 disappearance of José Sucunú Panjoj.
At the time of his disappearance, Mr. Sucunú was 59 years old, married,
and the father of 11 children. Since
1988, he had been a member of the Counsel of Ethnic Communities Runujel Junam (CERJ),
and active in its programs concerning human rights and popular education.
The petitioners alleged that, as a consequence of his activities with the
CERJ, he had been repeatedly intimidated and criticized by members of the Civil
Self-Defense Patrols (PAC's) and by local military commissioners.
This intimidation allegedly included false accusations that he was a
member of the guerilla.
2.
At the time of his disappearance, Mr. Sucunú worked as a loader in the
bus terminal in Zone 4 of Guatemala City, travelling back and forth from his
home in the Canton of Quiejel, Municipality of Chichicastenango, Department of
El Quiché. On October 29, 1994, at
17:00 hours, Mr. Sucunú bid farewell to some family members at the terminal in
Zone 4, and set out by bus for his home in Chichicastenango.
He never reached his destination, and has neither been seen nor heard
from since that date.
3.
The petitioners reported that the Sucunú family and the CERJ took
various steps to search for him. They
filed two writs of habeas corpus ("exhibición personal") in
favor of the victim on November 3, 1994, one before the Seventh Court of First
Criminal Instance (assigned cause number 1990-94), and another before the Second
Court of First Criminal Instance. The
writs having failed to produce any results, the Sucunú family went to the
Judicial Morgue in Zone 3 of Guatemala City to review photographic archives of
persons killed between September 30 and November 4, 1994, but found nothing
related to Mr. Sucunú. Consequently,
the petitioners alleged that the remedy appropriate in the case of a
disappearance, namely habeas corpus, had been invoked without having
provided an available or effective remedy.
4.
The petition alleged that the State of the Republic of Guatemala
(hereinafter "the State" or "Guatemala") is responsible for
violations of the following rights protected under the American Convention on
Human Rights (hereinafter American Convention): the right to life (Article 4),
physical integrity (Article 5), personal liberty (Article 7), and judicial
protection (Article 25), all in contravention to the undertakings set forth in
Article 1.
II.
PROCESSING BEFORE THE COMMISSION
5.
The Commission opened Case 11.435 on March 1, 1995, and transmitted the
pertinent parts of the petition to the Government of Guatemala by means of a
note of that date, with a response requested within 90 days.
6.
The Government responded with a note dated June 27, 1995, reporting that
inquiries from the executive to the judiciary indicated that neither the local
Prosecutor nor the Department of the National Police in El Quiché had any
information about the facts denounced. The
authorities had requested that the Attorney General's Office report on the
status of the two habeas corpus writs that had been filed.
Having noted that the law required those writs to remain pending until
the situation of the person concerned had been resolved, the Government asserted
that domestic remedies had apparently been invoked, but not exhausted.
The Government indicated that the results of their investigations would
be provided to the Commission. This
information was transmitted to the petitioners, with observations requested
within 45 days.
7.
In a note dated July 23, 1995, the petitioners indicated that the writ of
habeas corpus filed before the Seventh Court had been dormant since
December of 1994. They produced a
copy of the writ signed by a member of the CERJ on November 3, 1994, and a copy
of a letter dated December 12, 1994, from the Seventh Judge of First Criminal
Instance to the Secretary of the Supreme Court of Justice of Guatemala
indicating that the writ of habeas corpus remained pending, because some
Justices of the Peace had yet to remit reports on the procedure they were to
have carried out. The petitioners
reported that the writ filed before the Second Court of First Criminal Instance
had been rejected on December 14, 1994. They
asserted that the relevant authorities had failed to undertake a serious search
for the victim.
8.
The petitioners further reported that, on February 2, 1995, the victim's
spouse had filed a formal complaint with the District Attorney, accusing former
PAC member Sebastián Macario Ventura of responsibility for the disappearance of
her husband and the death of their son. That
son, Sebastián Sucunú, had reportedly been hit by a car on October 27, 1994,
and died of his injuries. The
complainant alleged that, on October 20, 1994, the accused had been heard by
four witnesses to say "I have already eliminated his son, I am only missing
the father" ("ya eliminé a su hijo, sólo me falta el papá").
According to the petitioners, these violent events may have been linked
in part to an earlier incident. Sebastián
Macario Ventura, then a teacher, had allegedly raped a woman in the presence of
approximately 100 students on May 10, 1993.
The parents of the students, led by José Sucunú, had then pressed to
have Macario dismissed. This submission was transmitted to the Government of
Guatemala by means of a note dated August 3, 1995, with receipt of all pertinent
information requested within 60 days.
9.
On October 6, 1995, the Government provided observations in response to
the petitioners' July 23, 1995 communication.
They reported that, on November 8, 1994, the Attorney General's Office
had filed a writ of habeas corpus in favor of José Sucunú before the
First Court of Peace on Duty. The
writ was processed and carried out that same day, at 23:00 hours, when the
respective judge visited different detention centers and police corps of
Guatemala City without finding any evidence of José Sucunú.
The following day, that judge remitted an action to all Justices of the
Peace in the country to carry out habeas corpus proceedings in favor of
Mr. Sucunú in various detention centers. The
Seventh Court of First Criminal Instance, Narcoactivity and Crimes against the
Environment (hereinafter "Seventh Court of First Criminal Instance")
received the action on November 10, 1994, and assigned it cause number 2008-94.
10.
The Government further reported that the Court of First Criminal
Instance, Narcoactivity and Crimes against the Environment was processing a
criminal action against Sebastián Macario Ventura for the kidnapping of José
Sucunú Panjoj, and the killing of his son.
The Government reported that the following measures had been taken:
On July 21, 1995, pursuant to the District Attorney's request, the
presiding judge had issued an arrest warrant against the accused, who was
apprehended that day and ordered preventively detained.
On August 2 and 3, 1995, six witnesses for the accused provided
declarations to the District Attorney. On
August 9, the court received a report that the accused had no criminal record.
On August 31, 1995, the judge reviewed the preventive detention order
against the accused, and determined that he should remain detained.
On September 13, 1995, the District Attorney received the testimony of
two witnesses for the complainant. Four
additional declarations for the defense were taken on September 19 and 20, 1995.
On September 25, 1995, the complainant filed a motion requesting that
certain witnesses against the accused be heard.
The Government concluded that judicial mechanisms were indeed seized of
the disappearance of Mr. Sucunú, as well as the criminal complaint filed in the
matter, and requested that, as domestic remedies had not been exhausted, the
case be declared inadmissible. This
information was transmitted to the petitioners on October 13, 1995, with any
observations in response requested within 45 days.
11.
The petitioners filed observations in the case on May 28, 1996.
With respect to the writs of habeas corpus, the petitioners
indicated that a number of Courts of Peace had failed to remit reports, and that
the authorities had failed to notify the interested parties and the Ombudsman
for Human Rights of the results of the investigations, as required by law.
With respect to the Government's assertion that the writs of habeas
corpus had been filed by the Attorney General's Office, the petitioners
indicated that the files of the Public Ministry in Santa Cruz del Quiché
contained no evidence to that effect, referring only to those writs filed by the
CERJ.
12.
The petitioners further reported that the accused had been at liberty
since October 26, 1995, when the Second Judge of First Instance of El Quiché
authorized his release on bail. The
petitioners asserted that the Prosecutor in El Quiché had halted his
investigation, notwithstanding that certain measures had not been completed --
including obtaining a forensic report on the death of José Sucunú's son.
They stated that the Seventh Court of First Criminal Instance had told
them the case file was "lost," so the case was paralyzed. The petitioners also maintained that a writ of habeas
corpus filed by the CERJ on November 3, 1994, had yet to be carried out.
They had consequently requested that the file be transferred to a court
that would carry out the writ, and that the file itself be traced.
They reported that neither action had been taken, and that file C-1990-94
remained missing. They concluded
that domestic remedies had been exhausted to the extent possible.
This information was transmitted to the Government on June 12, 1996, with
any observations or information in response requested within 45 days.
13.
The Government's response, dated August 1, 1996, reported that the
criminal matter remained pending in the investigation stage.
The accused had been freed on bail by order of the Second Court of First
Criminal Instance of El Quiché. The
complainant had filed an appeal challenging that order, which was dismissed on
October 23, 1995. The file included
declarations of witnesses, both for and against the accused, and the death
certificate for José Sucunú's son (listing the date of death as September 27,
1994, and the cause: "Cerebral Edema, Cerebral Hemorrhage,
Cranial-Encephalic Contusion"). On
May 24, 1996, a doctor from the Medical Forensic Department had reviewed the
files from September to November of 1994, and found no reference to a death
under the name José Sucunú Panjoj. The
Government further reported that an employee of the executive branch had
travelled to the Seventh Court of First Criminal Instance, and reviewed case
file 1990-94 (which was to be accumulated to case file 2008-94).
Finally, the Government reported that, as the Courts of Peace had been
unable to establish the whereabouts of José Sucunú through the habeas
corpus procedures carried out, the writ had been denied on July 22, 1996.
That information was transmitted to the petitioners on August 6, 1996,
with any response requested within 45 days.
This request was reiterated on January 21, 1997.
14.
On November 4, 1997, the petitioners presented additional observations.
They recounted that Mr. Sucunú had been persecuted in connection with
his CERJ activities, including having been falsely accused of belonging to the
guerilla. They asserted that he and
his family had received death threats from Sebastián Macario, a former member
of the PAC's. José Sucunú had
then been disappeared, just after his son had been hit by a car and killed.
The petitioners concluded that none of the recourses invoked by the
victim's family had led to a serious effort to investigate the threats against
and disappearance of Mr. Sucunú. With
respect to the two writs of habeas corpus filed by family members and the
CERJ, the first had been dismissed by the Second Court of First Criminal
Instance on December 14, 1994, and the second, before the Seventh Court of First
Criminal Instance, had never been resolved.
The criminal complaint, initiated pursuant to the complaint filed by Mr.
Sucunú's wife -- who had acted as a private accuser since May 31, 1995 -- had
produced no results. They reported
that the presiding judge had ordered the process closed on January 15, 1996.
This information was transmitted to the Government on December 12, 1997,
with any response requested within 30 days.
15.
The Government reported on the status of the case by means of a note
dated January 12, 1998, indicating that processes 1620-94 Of. 2o., 1120-95 and
555-95 against Sebastián Macario Ventura for the crimes of homicide,
kidnapping, rape and illegal detention committed against presumed victims
Sebastián Sucunú Macario, José Sucunú Panjoj and Martina Tax Nix had been
dismissed as of July 12, 1996 for lack of evidence, pursuant to the motion of
the Public Ministry. The Government
reported that, notwithstanding the dismissal, it had requested the Attorney
General to undertake an exhaustive investigation to uncover the whereabouts of
José Sucunú Panjoj. They had
directed the Regional Office of the Presidential Coordinating Commission of
Executive Policy in Human Rights Matters (COPREDEH) to intensify its efforts to
locate the victim's family to inform them of the actions taken, and request
their collaboration in identifying those responsible.
In conclusion, they reiterated that, given the pendency of the ongoing
investigation, domestic remedies had not been exhausted.
They also noted that no State involvement in the crimes at issue had been
demonstrated. This information was
transmitted to the petitioners by means of a note dated January 30, 1998, with
any response requested within 30 days.
III. THE
POSITIONS OF THE PARTIES
The Position of the Petitioners
16.
The petitioners maintain the State of Guatemala is responsible for the
disappearance of José Sucunú, as well as for its failure to respond with
appropriate measures to investigate and establish his whereabouts, and to submit
those responsible to the corresponding measures of prosecution and punishment,
in violation of Articles 4, 5, 7, 25 and 1.1 of the American Convention.
Mr. Sucunú disappeared on October 29, 1994, and his whereabouts and fate
remain unknown. The petitioners
allege that the forced disappearance of the victim constitutes a violation of
articles 4 and 7 of the Convention, and that the death threats to which he was
subjected by Sebastián Macario constitute a violation of Articles 4 and 5. They contend that the State failed to provide judicial
protection to the victim and his family, as required by Article 25 of the
Convention.
17.
They contend that, of the two writs of habeas corpus filed by
family members and the CERJ on November 3, 1994, the first was dismissed by the
Second Court of First Criminal Instance on December 14, 1994, and the second,
before the Seventh Court of First Criminal Instance, was never resolved.
They maintain that, on three dates between early 1995 and early 1996,
lawyers assisting the family sought information from the Seventh Court of First
Criminal Instance and from the Central Court Archives on the writ processed as
cause number 1990-94. They were
unable to obtain any information, and were told that the file was lost.
The petitioners also allege that the interested parties were not notified
of certain decisions, notwithstanding that this was required by law.
18.
The petitioners maintain that the criminal complaint filed by the
victim's spouse against Sebastián Macario on February 22, 1995 also failed to
produce any substantive result. The
presiding judge had questioned the accused on July 21, 1995, and ordered him
preventively detained for the crimes of rape, illegal detention and homicide.
The allegation on record was that the accused had stated in the presence
of witnesses that he had killed the son of José Sucunú, and would now kill the
father. The petitioners indicate
that the five witnesses in question provided sworn statements in the process
between March 28 and June 5, 1995 corroborating the complainant's allegations.
The Second Judge of Second Criminal Instance of El Quiché ordered the
process closed on January 15, 1996, and the District Attorney reportedly closed
its files on the matter on July 18, 1996. The
petitioners allege that the process was closed prematurely and arbitrarily.
19.
As a consequence, the petitioners maintain that the State failed to
undertake a serious investigation to establish the whereabouts or fate of the
victim, and that the measures his family invoked failed to produce any
meaningful result. The petitioners
maintain the administration of justice was incapable of offering effective
redress in cases involving PAC members at the time of the facts denounced.
They further argue that the administration of justice in general during
that period suffered from grave deficiencies.
20.
They contend that the case is admissible because the remedy of habeas
corpus, the applicable domestic recourse in the case of an alleged
disappearance, was invoked on behalf of the victim without producing a
meaningful result. They further
contend that both the recourse of habeas corpus and the criminal remedy
invoked by the victim's family proved ineffective and subject to undue delay.
The Position of the State
21.
The State has not disputed that Mr. Sucunú disappeared on October 29,
1994, and that his whereabouts and fate remain unknown.
Rather, the State maintains that its authorities have demonstrated their
interest in investigating and clarifying the situation.
22.
According to the State, a number of measures had been taken to
investigate the situation of Mr. Sucunú. On
November 8, 1994, the Attorney General's Office filed a writ of habeas corpus
in favor of José Sucunú before the First Court of Peace on Duty.
That same day, at 23:00 hours, the presiding judge visited different
detention centers. The judge next
directed a request to all Justices of the Peace in the country to carry out a habeas
corpus procedure in favor of Mr. Sucunú.
The Courts of Peace investigated, but because they had been unable to
establish the whereabouts of José Sucunú through the habeas corpus
procedures carried out, that writ had been denied on July 22, 1996.
23.
With respect to the criminal action against Sebastián Macario Ventura
for the killing of Sebastián Sucunú Macario (the son) and the kidnapping of
José Sucunú Panjoj (the father) before the Second Court of First Criminal
Instance, the District Attorney had requested, and on July 21, 1995, the
presiding judge had issued an arrest warrant against the accused.
The accused was promptly apprehended and ordered preventively detained.
A series of investigative measures were ordered and carried out in August
and September of 1995. The accused
had been freed on bail by order of the Second Court of First Criminal Instance,
and the appeal of that order dismissed on October 23, 1995.
24.
The Government has confirmed that the criminal process opened against
Sebastián Macario Ventura pursuant to the complaint filed by the victim's
spouse was dismissed at the motion of the Public Ministry.
In their last submission, the Government reported that the matter of the
disappearance of Mr. Sucunú nonetheless remained pending in the investigation
stage. The State contends that its
relevant mechanisms remain seized of the disappearance of Mr. Sucunú, and that
the case should therefore be declared inadmissible.
The State maintains that the petitioners have provided no evidence of
State involvement in the disappearance of Mr. Sucunú.
IV. CONSIDERATIONS
WITH RESPECT TO ADMISSIBILITY
25.
The Commission is competent to examine the subject matter of this
complaint, as it concerns alleged violations of Articles 1, 4, 5, 7 and 25 of
the American Convention. The
Republic of Guatemala deposited its ratification of the American Convention on
May 25, 1978, and the Convention entered into force for all Parties on July 18,
1978.
26.
The petition includes the information required by Article 32 of the
Commission's Regulations, and meets the conditions set forth in Article 46.1.c
of the American Convention and Article 39 of the Commission's Regulations, as it
is neither pending settlement in another international inter-governmental
proceeding, nor essentially duplicative of a petition pending or previously
considered by the Commission. The
petition was timely filed, as required by Article 46.1.b, given that the victim
allegedly disappeared on October 29, 1994, and the case was filed on January 17,
1995.
27.
Article 46 of the American Convention specifies that, in order for a case
to be admitted, "remedies under domestic law [shall] have been pursued and
exhausted in accordance with generally recognized principles of international
law." This requirement exists
to ensure the state concerned the opportunity to resolve disputes within its own
legal framework.
28.
The petitioners contend that the remedy appropriate in the case of a
forced disappearance, the writ of habeas corpus, was invoked and
exhausted. To date, the Government
has maintained the position that domestic remedies were invoked, but had not
been exhausted. With respect to the remedy of habeas corpus, the
record suggests that up to three different writs were filed on behalf of José
Sucunú. According to the
petitioners, two writs filed on November 3, 1994, one before the Second Court of
First Criminal Instance, the other before the Seventh Court of First Criminal
Instance. They allege that the
former was rejected on December 14, 1994, and the latter was never resolved.
According to the State, the Attorney General filed a writ before the
First Court of Peace on Duty on November 8, 1994.
They report that it was rejected on July 22, 1996.
The only documentary evidence on record before the Commission in this
regard consists of: (1) a copy of a writ of habeas corpus in favor of José
Sucunú, dated November 3, 1994 and signed by a member of the CERJ, and (2) a
copy of a December 12, 1994 letter from the Seventh Judge of First Criminal
Instance to the Secretary of the Supreme Court of Justice of Guatemala
indicating that a writ of habeas corpus in favor of José Sucunú
remained pending because a number of Justices of the Peace had not remitted
their reports on the proceedings effectuated.
Accordingly, the Commission concludes that this remedy was invoked, and,
based on the allegations of the parties, that it was exhausted.
29.
A writ of habeas corpus would normally be the effective
"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." Caballero
Delgado and Santana Case, Preliminary Objections, Judgment of January 21,
1994, Ser. C No. 17, para. 64, citing, Velásquez Rodríguez Case,
Judgment of July 29, 1988 (Merits), Ser. C No. 4, para. 65; Godínez Cruz
Case, Judgment of January 20, 1989 (Merits), Ser. C. No. 5, para. 68; Fairén
Garbi and Solís Corrales Case, Judgment of March 15, 1989 (Merits), Ser. C
No. 6, para. 90. In the present
case, the Government argues that the investigation process which remains pending
offers an applicable and effective remedy.
Given that certain salient aspects of the petitioners' claims about State
responsibility have yet to be clarified, for example, whether the individual
allegedly responsible for disappearing the victim was actually a member of the
PAC's at the time in question, the Commission will examine the State's
contention.
30.
The petitioners assert that the judge presiding over the criminal process
ordered the investigation closed on January 15, 1996.
They allege that the process was archived prematurely, in that certain
important measures of proof had not been taken, and arbitrarily, in that the
court failed to take into account the available proof.
They assert that domestic remedies generally proved ineffective in
responding to the facts denounced.
31.
Accordingly, when domestic remedies are prima facie unavailable as
a matter of fact or law, the requirement that they be exhausted is excused.
See Advisory Opinion OC-11/90 of August 10, 1990, Exceptions to
the Exhaustion of Domestic Remedies (Art. 46.1, 46.2.a and 46.2.b American
Convention on Human Rights), Ser. A No. 11, para. 17.
Article 46.2 of the Convention specifies that this exception applies: if
the legislation of the state concerned fails to afford due process for the
protection of the right allegedly violated; if the party alleging violation has
been hindered in his or her access to domestic remedies; or if there has been
unwarranted delay in the issuance of a final judgment through domestic
recourses.
32.
When a petitioner alleges that he or she is unable to prove exhaustion,
Article 37 of the Commission's Regulations establishes that the burden then
shifts to the Government to demonstrate which specific domestic remedies remain
to be exhausted and offer effective relief for the harm alleged.
See, Velásquez Rodríguez Case, Judgment of June 26, 1987,
para. 88. In the instant case, the
Government has confirmed the dismissal of the criminal process instituted at the
initiative of the spouse of the victim as of July 12, 1996, on the basis of a
lack of evidence against the accused. The
Government has not expressly responded to the petitioners' claims that the
process was closed prematurely and arbitrarily. Nor has the Government demonstrated what specific domestic
judicial remedy the petitioners failed to invoke or exhaust.
The Government's request of January 1998 to the Attorney General to carry
out an exhaustive investigation does not constitute such a remedy.
The State has therefore failed to discharge that burden.
33.
Finally, as required by Article 47 of the American Convention, the
petitioners have stated facts tending to establish a violation of the rights
guaranteed by this Convention. As
indicated by the foregoing considerations, the present petition fulfills the
requirements for admissibility set forth in the American Convention and the
Regulations of the Commission.
34.
Taking into account the foregoing analysis and conclusions, THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
A. To
declare the present case admissible.
B.
To transmit this report to the State of Guatemala and the petitioners.
C.
To place itself at the disposal of the parties for the purpose of
reaching a settlement based on respect for the human rights protected in the
American Convention; and invite the parties to indicate their disposition to
initiate the procedure of friendly settlement within a period of 30 days,
counted as of the date of transmission of the present report.
D.
To continue with the analysis of the merits of the case.
E.
To make this report public, and publish it in its Annual Report to the
General Assembly of the OAS.
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