continued...

          235.    Further, these 46 cases are consistent with the pattern of extrajudicial executions during 1990-91 by reason of the organizational, social and political affiliations of many of the victims.  For example, the victims in cases 10.855 and 10.692, Pedro García Chuc, and David Gutiérrez Morales, Everardo Boteo Morales, Juan Orellana Chacón and Israel Chacón Aquino, had been members and the president of local cooperatives, respectively.  Case 10.936 involved the killing of Raúl Sao Villagrán, the president of a local court of appeals.  The victims in cases 10.714 and 10.869, Orlando Estuardo Alvarado Morales and Byron Estuardo Polanco, had been members of university communities.  Cases 10.875 and 10.920 involved the killing of members of the labor movement, Dinora Pérez Valdez and Oswaldo Luna Aceituna.  Case 10.785 arose pursuant to the killing of a political leader and former mayor, Marco Tulio Collado Pardo, and case 10.903 concerned the killing of Leandro Barillas, a community leader.  Tomás Ventura Chon, the victim in case 10.922, had been a member of the CERJ.  The victims in cases 10.731 and 10.935, Martín Quic Ratzán and Julio Quevedo Quezada, had been members of religious organizations.  A number of the victims were members of rural communities in which indigenous groups, and agricultural workers and subsistence farmers were targeted for acts of violence.  

          236.    Additionally, in a number of cases, the victims and/or their families had been threatened prior to these executions.  For example, the victim in case 10.747, Urbano Efraín Alvarado Mejía, was killed three years after his brother, a student, had reportedly been killed.  Although a number of Police agents were brought to trial with respect to that earlier execution and sentenced, all were subsequently acquitted on appeal.  During that process, the family was reportedly threatened.  Similarly, in the case of Orlando Estuardo Alvarado Morales (case 10.714), it was reported that, some years earlier, his brother had been forcibly disappeared and executed.  In the case of Marco Tulio Collado Pardo (Case 10.785), the victim had reportedly received death threats and suffered an attempt against his life in 1980.  After a period in exile, he had returned to Guatemala in 1985 and reentered political life.  

          237.    According to the record before the Commission, judicial processes were opened concerning at least 44 of the 46 cases, pursuant to the filing of a denunciation by a family member and/or the finding of the body of the victim(s).  In no case, however, has the Commission received information as to the issuance of a final decision disposing of the issues raised.  To date, no one has been held judicially accountable for these executions. This too is consistent with the systematic failure of the judiciary to respond with the required investigation, prosecution and punishment of human rights violations during the period in question.  

          238.    These 46 cases form part of the practice of extrajudicial executions carried out in Guatemala in 1990 and 1991, executions perpetrated by State agents or persons working at their behest or with their acquiescence.  This practice further involved the participation of the State agents who perpetuated it by failing to investigate, prosecute and punish those responsible.  On the basis of the direct and circumstantial indicia set forth, the Commission concludes that the State bears responsibility for the facts denounced in these 46 cases, and will proceed to detail the specific nature and consequences of that responsibility.  

          C.        Considerations of law  

            The right to life  

          239.    Article 4(1) of the American Convention on Human Rights declares: "Every person has the right to have his life respected....  No one shall be arbitrarily deprived of his life."  International human rights law, both treaty-based and customary, and the Guatemalan Constitution of 1985, guarantee the right to life.  Similarly, Article I of the American Declaration of the Rights and Duties of Man and Article 3 of the Universal Declaration of Human Rights provide "Every human being has the right to life, liberty and the security of his person"; and Article 3 of the 1985 Guatemalan Constitution reads:  "Right to life.  The State guarantees and shall protect human life from its conception, as well as the integrity and security of the person."  

          240.    The right to life is of special importance because it is the essential precondition for the realization of all other rights.  The right to life is of paramount importance within the system of Convention guarantees; accordingly, its provisions must be strictly construed.  Protection for this right is two-fold: on the one hand, it presupposes that no one may be arbitrarily deprived of life, and on the other, it requires that States take all necessary measures to ensure it.

            241.    The duty of the State is to guarantee to all persons subject to its jurisdiction the inviolability of life and the right to not be arbitrarily deprived of it, which implies reasonably preventing situations that may result in the suppression of this right.  Due diligence imposes on the State the duty of reasonable prevention in those situations that could lead, by omission, to the suppression of the inviolability of life.  The facts of these cases demonstrate that the State failed to protect these victims against the arbitrary killings perpetrated by its agents, or those working at their behest or with their acquiescence.  The practice of extrajudicial executions then in existence and posing a dire threat to this right was allowed, and, in some respects, encouraged to persist due to the lack of will or ability on the part of the authorities to respond to it.  

          242.    The right to life gives rise to duties on the part of the State that are both preventive and corrective.  In this case, the procedures of the State have provided neither. The system of legal guarantees, which should have been set in motion to control the actions of the State agents implicated, was bypassed.  Nor did it provide the required response to the violations.  

          243.    The object and purpose of Article 4 requires that it be applied so as to ensure the efficacy of its guarantees.  Read in conjunction with Article 1(1), duty of the State to respect and ensure the rights of the Convention, this requires that any case suggesting the arbitrary deprivation of that right be subjected to an effective investigation.^[77]  As will be further analyzed below, the reports submitted by the State with respect to the cases under study fail to demonstrate the pursuit of effective investigations designed to clarify the facts or the corresponding responsibility for these killings.^[78]  Specifically, international and inter-American human rights law have established that any violation of the right to life requires that the State undertake a judicial investigation, under a criminal court, designed to "prosecute criminally, try and punish those held responsible for such violations."^[79] Therefore, in certain cases in which a state has failed to duly investigate reports of arbitrary killings, it has been held internationally responsible for having violated the right to life, even though the circumstances of the deaths have not been fully clarified.^[80]  As will be further analyzed below, the reports submitted by the State with respect to the cases under study fail to demonstrate the pursuit of effective investigations designed to clarify the facts or the corresponding responsibility for these killings.  

          244.    The Commission considers that in all of the cases included in this report the victims were extrajudicially executed, some immediately, with no prior capture, others hours or days after their capture, by State agents or private persons acting with their tolerance or consent, in the context of the practice of extrajudicial executions previously identified by this Commission.  The State failed to take the measures required to address and stem the practice of extrajudicial executions prevalent at the time, and failed to respond to these specific executions with the due diligence required.  Therefore, the Commission concludes that the Guatemalan State violated Article 4 of the American Convention to the detriment of the victims identified in the cases that are the subject of this report.  

          The right to personal liberty  

          245.    Any lawful deprivation of liberty must be ordered and executed by a competent authority and must be carried out in accordance with the substantive and procedural requirements of domestic law and of the American Convention.  Article 7(2) of the American Convention establishes: "No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto."  Article 7(3) provides:  "No one shall be subject to arbitrary arrest or imprisonment."  

          246.    In the 26 cases under study in this respect, 10.586, 10.609, 10.610. 10.611. 10.612, 10.614, 10.618, 10.622, 10.653, 10.658, 10.667, 10.692, 10.714, 10.763, 10.764, 10.780, 10.782, 10.787, 10.788, 10.852, 10.855, 10.858, 10.869, 10.873, 10.891, and 10.936, it is alleged that the victims were illegally captured and clandestinely detained before being killed.  These victims were reportedly held for periods ranging from an hour or so to as long as several days.  

          247.    There is no allegation or information on record suggesting that any of these victims were deprived of their liberty pursuant to the order of a competent authority or pursuant to law.  Rather, the events described follow the modus operandi of many extrajudicial executions of the period, including the fact that in 13 of the 26 cases, the bodies of the victims were found bearing signs of torture.  This graphically illustrates the potential for a person deprived of liberty, absent access to judicial protection, to be subjected to other fundamental human rights violations.  

          248.    "The kidnapping of a person is an arbitrary deprivation of liberty, an infringement of a detainee's right to be taken without delay before a judge and to invoke the appropriate procedures to review the legality of the arrest...."^[81]  The right to petition for a determination as to the legality of an arrest is the fundamental guarantee of the constitutional and human rights of a detainee when deprived of liberty by state agents.  "Here habeas corpus performs a vital role in ensuring that a person's life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment."^[82]  Accordingly, the Commission concludes that the State bears responsibility for the acts of its agents, or persons working at their behest or with their acquiescence, in illegally depriving the victims in these 26 cases of their liberty and preventing them from seeking access to judicial protection through habeas corpus.  

          The right to humane treatment  

          249.    Article 5 of the American Convention on Human Rights indicates, in paragraphs 1 and 2: "1. Every person has the right to have his physical, mental, and moral integrity respected. 2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment...."  

          250.    In the 26 cases in the foregoing section, 10.586, 10.609, 10.610. 10.611. 10.612, 10.614, 10.618, 10.622, 10.653, 10.658, 10.667, 10.692, 10.714, 10.763, 10.764, 10.780, 10.782, 10.787, 10.788, 10.852, 10.855, 10.858, 10.869, 10.873, 10.891, and 10.936, the victims were held clandestinely, cut off from contact with any form of aid or protection, for periods from one hour to as long as several days.  The deprivation of liberty under such conditions in itself produces great anxiety and suffering.  

          251.    In 13 of these 26 cases, 10.609, 10.610. 10.622, 10.667, 10.714, 10.764, 10.780, 10.782, 10.788, 10.852, 10.873, 10.891 and 10.936, the bodies of the victims manifested marks of torture.  In at least four of these cases, 10.764, 10.780, 10.852 and 10.936, the marks indicated that the victims had been beaten.  In case 10.667, the victim was reportedly tortured to death:  "The soldiers removed his eyes, cut off his ears, torturing him until causing his death." As noted above with respect to the facts established, the State never controverted the petitioners' descriptions of the marks on the bodies and claims of torture.   

          252.    The way in which these victims were tortured and the marks on their bodies did not reveal any intent to hide the facts, but rather to make them clear to whoever found the corpses, and to the family members and all others who might see the bodies.  As noted in the section concerning the characteristics of executions during the period, the objectives of such torture included not only causing the victim to suffer, but also defiling his or her human dignity before family members and the community, and heightening the fear of all who learned of it.^[83]  

          253.    As with the right to life, the effective observance of the prohibition of torture requires that any allegation of inhuman treatment be subjected to effective investigation.^[84] In this regard, the Commission further observes that Guatemala was bound by the Inter-American Convention to Prevent and Punish Torture at the time of these facts.  Guatemala deposited its instrument of ratification on January 29, 1987, and the Convention entered into force for all parties on February 28, 1987.  Pursuant to the terms of Articles 1 and 6, Guatemala undertook to prevent and punish torture occurring within its jurisdiction. Further, Article 8 provides:  

The States Parties shall guarantee that any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case.  

Likewise, if there is an accusation or well-grounded reason to believe that an act of torture has been committed within their jurisdiction, the States Parties shall guarantee that their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process.

          254.    The circumstances of these cases and general descriptions of the marks on the victims' bodies are consistent with the treatment accorded to victims who were first detained and then extrajudicially executed during that period.  While the State did not controvert that the victims had been tortured, neither did it submit information or evidence to show that those claims had been effectively investigated as required pursuant to its obligations under the American Convention and the Inter-American Convention to Prevent and Punish Torture.  Accordingly, while the precise nature of and responsibility for the torture alleged in these 13 cases has not been established at the domestic level, the Commission finds sufficient indicia to conclude that the State bears responsibility for the acts of its agents or persons working with their tolerance or acquiescence in violating the right of Fidelino Raúl Tobías Aparicio, Miguel Angel Rianca Sicay, Gregorio Ramírez y Ramírez, and Juan Pablo Quiejuy; Mateo de la Cruz; Arturo Martínez Rodríguez and Alfredo Ubido Segura; Pedro Rivera Matom; Orlando Estuardo Alvarado Morales; Félix Tizul Piruch; Gloria Patzay Vicente; Omar Cain Carvajal Leiva; Cristóbal Chico López, Wenceslao Santiago Saavedra and Marvin Estuardo Castillo Saavedra; Ricardo Rivera Ovando; Margarita Chávez; Felicito Cristóbal Samayoa; and Raúl Sao Villagrán to physical integrity and to be free from torture pursuant to Article 5 of the American Convention and Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture.

          Rights of the Child  

          255.    Article 19 of the American Convention on Human Rights provides:  "Every minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state."  Of the 46 cases under study, four deal with violations committed against minor victims.  Case 10.687 concerns the killing of Magdalena Efranin Fray Santos, then twelve years old, by soldiers who opened fire against a group of local inhabitants.  Case 10.755 concerns the killing of Toribio López and Tiburcio Carrillo, 16 and 14 years of age, pursuant to an artillery attack by soldiers against two villages.  According to the petition, the soldiers rammed a stick through their backs and left them semi-buried.  In case 10.763, persons linked to the security forces captured a couple and their two year old child, Jorge Luis Simaj Azurdia.  When the bodies were located, the husband and wife had their throats slit, and the child had been hung.  Case 10.787 concerns the capture and killing of Oscar Aguilar Saquic, the 13-year-old, by persons linked to the security forces.  

          256.    Respect for the human rights of children is of the utmost importance for all States.  This is why Article 19 provides for special measures of protection for children, considering their vulnerability as minors.^[85]  The present cases illustrate the circumstances pursuant to which children became victims of the practice of extrajudicial executions, and how the State failed to comply with the guarantees established in Article 19 of the American Convention.  

          The right to judicial protection and guarantees  

          257.    Article 25(1) of the American Convention provides:  "Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention...."  Article 25(1) incorporates the principle of the effectiveness of procedural instruments or means.  It is not sufficient for the legal order of the State to accord formal recognition to the remedy in question; rather, it is necessary for the State to develop the possibilities of an effective remedy, and that it be substantiated in keeping with the rules of due process of law.  

          258.    Article 8(1) provides:  

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature ... for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.  

          As the Court has explained, Articles 25, 8, and 1(1) are mutually reinforcing:  

Article 25, read in conjunction with Article 1(1) of the American Convention, requires the State to guarantee to all persons access to the administration of justice and, in particular, to prompt and simple recourse for, among other results, having the persons responsible for human rights violations judged, and to obtain reparations for the harm suffered....  Article 25 "is one of the basic pillars, not only of the American Convention, but of the very rule of law in a democratic society...."  That article is directly related to Article 8(1) ... which enshrines the right of all persons to be heard with due guarantees ... for the determination of their rights, whatever their nature.^[86]  

The corresponding duties of the State must be fulfilled, not through formal measures, but through substantive measures.  Therefore, the remedies offered by the State must be "truly effective in establishing whether there has been a violation of human rights and in providing redress."^[87]  Accordingly, the State's response to these 46 cases must be analyzed in relation to whether the State has established if the victims' human rights have been violated, and whether it has provided the corresponding redress.  

          259.    In this regard, the petitioners reported having denounced the situations complained of in the present cases before the pertinent authorities.  With respect to  all but two of these, cases 10.755 and 10.922, the State either reported the pendency of judicial processes or failed to answer.  With respect to cases 10.755 and 10.922, the petitioners reported that the violations alleged had been denounced to local authorities, while the State responded that it had no record of any related denunciations or judicial processes.  

          260.    While the guarantees of Articles 25 and 8 are distinct, common core deficiencies in the administration of justice prevented the application of both during the period under study.  As has been referred to above, the administration of justice at that time was deficient to the point of inoperability.^[88]  In the majority of cases, the investigating forces or judiciary failed to identify perpetrators, and in the few cases where they were identified, they were not subjected to prosecution and punishment.  In the few cases where convictions were handed down at first instance, they were invariably quashed on appeal.^[89]  "[I]n cases having a political background, almost no conviction ... is upheld on appeal and becomes final.  Clearly, with such results, the population has little faith in the proper administration of justice."^[90]  Complainants and witnesses to human rights violations were afraid to participate in judicial processes due to threats, or intimidation, or the fate of others who had done so.  Judges declined to investigate human rights violations for fear of what had befallen those who had.^[91]  The lack of will and ability on the part of the State to respond to grave violations was further manifested in and exacerbated by profound structural deficiencies in the administration of justice.^[92]  

          261.    As the Commission for Historical Clarification concluded generally: 

The failure of the administration of justice to protect human rights during the internal armed confrontation has been clearly and fully established, by the thousands of violations ... that were not investigated, tried, or punished by the Guatemalan State....  In general, the Judiciary neglected to address basic procedural remedies to control the authorities, in view of the grave abuses against personal liberty and security...  Moreover, on numerous occasions the courts of justice were directly subordinated to the Executive branch....  This whole situation made the population totally defenseless in the face of the abuses of the authorities, and has led the Judiciary to be seen as an instrument for defending and protecting the powerful, that has repressed or refused to protect fundamental rights, especially of those who have been victims of grave human rights violations.  

Persons seeking judicial protection concerning human rights violations under the then-prevailing conditions did not have access to the simple, prompt effective judicial protection required under the American Convention.  While formally remaining in existence, such remedies were illusory in terms of producing the results for which they were theoretically designed.  

          262.    Under the American Convention, in case of an infringement of a right or freedom protected, "[t]he State has a legal duty ... to use the means at its disposal ... to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation."^[93]  At the same time, the victim or the victims' family has the right to seek judicial protection and redress.  The victim and/or his or her family members have the right to a judicial investigation by a criminal court to determine who was responsible for the human rights violations and to punish them.^[94]  The investigation "must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of ... [the victim's] family ... without an effective search for the truth by the government."^[95]  

          263.    As the Commission has noted in other cases, the "Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions," adopted by the Economic and Social Council of the United Nations by Resolution 1989/65, explain what is required in the case of a suspicious death.^[96]  In this respect, the purpose of the investigation should be to determine the cause, form, and moment of the death, the person responsible, and the procedure or practice that may have provoked it.  In addition, one must perform an adequate autopsy, compile and analyze all the material and documentary proof, and take the statements of witnesses.  The investigation should distinguish among death by natural causes, death by accident, suicide, and homicide.  

          264.    With respect to the specific cases under study, while the State reported on the pendency of judicial processes, it reported few if any specific measures of investigation, and even fewer results.  The State submitted virtually no documentary evidence with respect to the processes it cited.  In a handful of cases it indicated that prosecutors or judges had requested that certain measures be carried out without reporting whether they were ever effectuated, and if so, with what results.  In the vast majority of the cases, the record before the Commission indicates simply that a judicial process had been initiated and remained in the investigation stage.   

          265.    In four cases, 10.658, 10.747, 10.782 and 10.903, the State reported that a specific individual or individuals had been accused of responsibility. In three of those cases, the accusations were brought by private accusers, while in the fourth the source is unclear.  No specific steps to investigate the alleged participation of those accused were reported, nor any concrete steps to effectuate prosecution or punishment.  The investigations were simply reported to remain pending.  

          266.    In four other cases, 10.657, 10.667, 10.787 and 10.861, the State reported that specific individuals had been charged with responsibility for the crimes, tried, and absolved due to lack of proof.  Each of those sentences had been confirmed on appeal. The case files provide no basis for the Commission to determine whether those accused and acquitted were innocent or guilty, nor is that determination germane to the present analysis.  What is relevant is that the files disclose a complete absence of information as to what measures of investigation, if any, had been taken to provide the necessary factual and legal foundation for those prosecutions.  Further, not one of these files discloses a single step aimed at the investigation or identification of alternative suspects.  

          267.    According to the record before the Commission, none of the other judicial processes resulted in the prosecution, or even the identification of any suspect.  None of these judicial processes has led to the issuance of a final decision disposing of the claims raised, nor has anyone been found responsible for or punished in connection with the killing of the 71 victims in these cases. The Commission has clarified that the duty to investigate is not breached merely because no one has been convicted in the case, or because, despite the efforts made, it is impossible to clearly establish the facts.  Nonetheless, to establish convincingly and credibly that this result has not been the product of running mechanically through certain procedural formalities without the State effectively seeking the truth, the State must show that it has carried out an immediate, exhaustive, serious, and impartial investigation.^[97]  In the present cases, the State has failed to meet that burden of proof.  

          268.    The victim's families had the right to know the truth about what happened to their loved ones.^[98]  In addition, as the victims’ successors, they had and continue to have the right to use that information to exercise the right to redress from the State.  "The rights of victims or their families to receive adequate compensation is both a recognition of the State's responsibility for the acts committed by its personnel and an expression of respect for the human being."^[99]   

          269.    On the basis of the considerations reviewed above concerning the lack of will and ability of the judiciary to act on human rights violations during the period, as well as with respect to the particular cases under study, the Commission concludes that the judicial processes initiated with respect to these cases were not dealt with by independent and impartial courts.^[100]  Given the passage of over eight or nine years since those processes were initiated, and the fact that they have yet to be brought to any effective conclusion, the Commission considers that the reasonable time provided for in the Convention has been greatly exceeded.  Further, given the lack of effective investigation and resulting absence of the foundation necessary to try these cases, combined with the other deficiencies in the management of these processes such as delay, the Commission concludes that the family members did not enjoy the guarantees necessary to ensure due process in the determination of their rights.  

          270.    Impunity is the result of the “failure to investigate, prosecute, take into custody, try and convict those responsible."^[101]  Pursuant to the inter-related guarantees established at Articles 25, 8, and 1(1) of the American Convention, the State has the duty to use “all the legal means at its disposal to combat that situation, since impunity fosters chronic recidivism of human rights violations and total defenselessness of victims and their relatives."^[102]  As the UN Special Rapporteur on Executions has emphasized, "impunity continues to be the principal cause of the perpetuation and encouragement of violations of human rights, and particularly extrajudicial, summary or arbitrary executions."^[103]  With respect to the present cases, the record clearly reflects that the State failed to utilize the means at its disposal to carry out the effective investigation required to provide the foundation for the prosecution and punishment of those responsible.  As a consequence, the State bears responsibility for the fact that these violations remain cloaked in impunity.

The State's obligation to respect and guarantee individual rights  

          271.    In the cases included in this report, the analysis shows that the Guatemalan State has failed to carry out its obligation under Article 1(1) of the American Convention to "respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms," for having violated the rights set forth at Articles 4, 5, 7, 8, 19, and 25 of this Convention, as well as Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture.  

          272.    Thus, the first obligation of the States, emerging from Article 1(1) of the Convention, is to respect the rights and freedoms of all individuals within their respective jurisdiction.  In relation to this obligation, the Court has stated that "under international law a State is responsible for the acts of its agents ... and for their omissions, even when those agents act outside the sphere of their authority or violate internal law."^[104]  Similarly, "in principle, 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 attributable to the State."  In addition, "[a]n illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention."^[105]  

          273.    Based on the foregoing analysis, the Commission concludes that the extrajudicial executions of the victims included in the cases that are the subject of this report were perpetrated by agents of the Guatemalan State or by private persons acting with their tolerance or consent, in the framework of a State practice of extrajudicial executions.  In 26 of the cases under study, those responsible first held their victims in clandestine detention.  In 13 of those cases, the bodies of the victims bore the signs of torture practiced by those captors.  The acts and omissions of those agents, as well as those of police and judicial personnel that had the effect of impeding or preventing the right of family members to know the truth about what had happened and to seek judicial recourse are attributable to the State.  

          274.    The second obligation provided for in Article 1(1) is to guarantee the free and full exercise of the rights and freedoms recognized in the Convention.  In this respect, the States parties have the duty "to organize the 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 ... the States must prevent, investigate and punish any violation of the rights recognized by the Convention."^[106]  

          275.    The State, in the face of an alleged extrajudicial execution, has the duty to clarify the facts, and to identify and punish the persons responsible.  In the cases addressed in this report, those essential obligations have not been met, especially as it has been shown that the State itself used its structure to implement a practice of extrajudicial executions during the period in question.  Therefore, the Commission concludes that the Guatemalan State has violated Article 1(1) of the Convention because it failed to guarantee the exercise of the rights and guarantees of the victims identified in the cases included in this report.

          VI.       CONSIDERATIONS ON THE STATE'S OBSERVATIONS  

          276.    At its 104th session, the Commission adopted Report Nº 125/99 on this case, pursuant to Article 50 of the American Convention.  On November 11. 1999, the Commission transmitted the report, with its conclusions and recommendations, to the Government of Guatemala, and asked that it inform the Commission, within two months, on the measures taken to carry out the Commission's recommendations.  

          277.    On January 12, 2000, the Government of Guatemala communicated to the Commission its answer to Report No. 125/99.  The State reported that it wished to refer to the cases in general terms, as it sought to reflect "on the complexity and difficulties" it has found in addressing them.  The analysis of the State's answer will be divided into four parts:  (a) the duty to investigate, (b) combining the cases, (c) extrajudicial execution, and (d) the duty to make reparations.

          a.         Duty to investigate  

          278.    The State indicated that the passage of time "has made it impossible, in most cases, to have access to the sources of information and of conviction to reinitiate and redirect" the pertinent investigations.  In addition, the State noted that many of the cases in the report "are dispersed throughout the territory of the Republic, which has made it difficult to locate the respective case files and evidence."  Similarly, the State reported that the events occurred when the old code of criminal procedure was in force, which was "oriented by the principles of secret process, procedural and investigative initiative vesting in the judiciary, written procedure, and other procedures that minimized the participation of the Public Ministry."  The Guatemalan State also noted that the Commission should consider the political and historical context of armed confrontation in which the events in the cases in question took place, because as a result of that conflict the outlook "was discouraging for the internal organs entrusted with the investigation, administration, and enforcement of justice."  

          279.    Having analyzed the answer of the Guatemalan State to Report 125/99, this answer shows that the State has not carried out the Commission's recommendation to undertake an exhaustive, impartial, and effective investigation to determine the circumstances of the extrajudicial executions and to judge and punish the persons responsible for the same.  

          280.    Independently of the difficulties the State mentioned that may arise in investigating cases of this nature, such as time, the dispersion of the cases in the national territory, the procedural difficulties, and the political and historical context, one must bear in mind that the record before the Commission reflects virtually no serious effort whatsoever on the part of the Guatemalan State to investigate the facts alleged in due course, or to place on trial and punish the persons responsible.  The information provided to the Commission merely shows that in these cases the judicial procedures were not performed with due diligence and that they have also been subjected to a prolonged, improper, and unwarranted delay.  

          281.    In this regard, the Commission wishes to point out that the passage of time and the territorial dispersion of the cases are not an appropriate justification for the State’s failure to have undertaken a serious and effective investigation.  Similarly, the Commission does not doubt that these events occurred during difficult moments in the history of Guatemala; nonetheless, the fact that there was a conflict in the country is also no justification for the lack of justice and deprivation of the right to life that occurred in these cases. While the Guatemalan State reformed its Code of Criminal Procedure, the Commission reiterates that the victims' right to justice has not been respected in these cases, as the obligation to guarantee the victims' rights has not been upheld either before or after the reform of the Code, given the State’s failure to investigate, try or punish the individuals responsible.  

          282.    In this respect, the Commission wishes to note that, once the State had learned that the individuals in question had been extrajudicially executed, it was under the duty to take serious, effective, and timely steps to investigate.  As the Court has noted:  

The State is obligated to investigate every situation involving a violation of the rights protected by the Convention.  If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction.  The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.^[107]  

In certain circumstances, it may be difficult to investigate acts that violate an individual's rights.  The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result.  Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.  This is true regardless of what agent is eventually found responsible for the violation.  Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.^[108]  

          283.    In addition, the Commission has taken due note of what the Guatemalan State has expressed in stating that "through the competent organs of the State, it is in the best disposition to redirect an exhaustive investigation to clarify all of these cases.  To this end, it seeks from the Illustrious Commission the corresponding authorization to forward to the Public Ministry a copy of Confidential Report 125/99, for the purpose of giving renewed procedural impetus to these cases.  Likewise, the Government of Guatemala shall make the pertinent efforts for the Public Ministry to appoint a Special Prosecutor to give special treatment to these cases."  In this regard, the Commission urges the State to take all measures necessary to carry out an effective, serious, and impartial investigation of the facts alleged, and to place on trial and punish the persons responsible.  

          b.         Accumulation of cases  

          284. With respect to the joinder of cases, the State indicated its disagreement with combining 46 cases, as the Commission did under Article 40 of its Regulations.  The State grounds its opinion "in the fact that there is no coincidence or identity of persons, facts, places, or dates in the cases in question.  The Commission, in the view of the Government, could only find the similarity that the cases referred to in Report 125/99 took place during the same calendar year (1990-1991), which is not the situation contemplated for combining cases in Article 40(2) of its Regulations."  

           285. On this point, the Commission reiterates what it already indicated, when it noted that "after determining that each of the cases referred to an allegation of extrajudicial execution of persons at the hands of the security forces or persons linked to them, and considering the character and time frame common to the complaints in question, the Commission decided, pursuant to Article 40 of its Regulations, to combine those cases and to proceed to resolve them together."  

          c.         Extrajudicial executions  

          286.    The State, in its response, rejected the term “extrajudicial execution” used by the Commission in this report, because, according to the State, "there is no certainty that State agents have taken the lives of the persons referred to in the report."  And it maintains that the Commission itself, in some paragraphs of the report, used the expression "alleged extrajudicial execution."^[109]  

          287.    On this point, the Commission would like to reiterate its conclusions to the effect that there were extrajudicial executions in the 46 cases analyzed in this report.  These executions were part of a practice that existed and was used in Guatemala in 1990 and 1991, perpetrated by State agents or by persons acting at their behest or with their acquiescence.  In this respect, see the Commission's analysis on the merits at paragraphs 212 and following.  

          d.         Duty to make reparation  

          288.    Finally, the State indicated in its answer that, as regards the Commission's recommendations, "it would also evaluate the possibility of including the victims' families in the programs for compensation and assistance in place for the victims of the armed conflict.”  On this point, the Commission has taken due note of what was indicated by the State, and urges it to adopt the measures necessary for the victims' families to receive adequate and timely reparation.

            VII.     CONCLUSIONS  

          289.    Based on the foregoing analysis, the Commission concludes that the Guatemalan State is responsible for the violation of the rights to life, judicial guarantees, and judicial protection enshrined in Articles 4, 8, and 25 of the American Convention, to the prejudice of:  

Joaquín Ortega, Teodoro Mejía Aguilar, Arcadio Mejía Velásquez, Efraín Ventura Cifuentes, and Luis Ventura (10.586); Fidelino Raúl Tobías Aparicio, Miguel Angel Rianca Sicay, Gregorio Ramírez y Ramírez, and Juan Pablo Quiejuy (10.609); Mateo de la Cruz (10.610), Aldo Tomás Sicaja and Francisco Alfredo Yuman (10.611); Mario Gómez Castillo (10.612); Emilio Santiago Ronquillo Peralta (10.614); Miguel Angel de León García and Jorge Adalberto Girón (10.618), Arturo Martínez Rodríguez and Alfredo Ubido Segura (10.622); Ricardo Alberto Ajcajbón (10.653); Juan Cristino Rodríguez, Sara Rodríguez, Mercedes Oxlaj, and Dominga Rodríguez Chet (10.657); Guilgo Teodoro Zapeta Vásquez (10.658); Alberto Paron Boche (10.660); Pedro Rivera Matom (10.667); Magdalena Efranin Fray Santos (10.687); David Gutiérrez Morales, Everardo Boteo Morales, Juan Orellana Chacón, and Israel Chacón Aquino (10.692); Orlando Estuardo Alvarado Morales (10.714); Salvador Sosof Vásquez and Baltazar Pablo Mendoza (10.725); Pedro Chávez (10.730); Martín Quic Ratzán (10.731); Urbano Efraín Alvarado Mejía (10.747); Toribio López and Tiburcio Carrillo (10.755); Arnoldo Pérez Arana (10.759); Jorge Simaj Saquil, María Azurdia, and Jorge Luis Simaj Azurdia (10.763); Félix Tizul Piruch (10.764); Víctor Segura (10.777); Gloria Patzay Vicente (10.780); Omar Cain Carvajal Leiva (10.782); Juana Coche Tacaxoy and José Pospoy Mendoza (10.784); Marco Tulio Collado Pardo (10.785); Oscar Aguilar Saquic (10.787); Cristóbal Chico López, Wenceslao Santiago Saavedra, and Marvin Estuardo Castillo Saavedra (10.788); Víctor Manuel Chiquín (Chanquín) (10.789); Ricardo Rivera Ovando (10.852); Pedro García Chuc (10.855); Carlos Evercio Melgar Pocón (10.858); María del Carmen Anabisca Secáida (10.861); Byron Estuardo Polanco (10.869); Eulogio Meléndez Boteo, Pedro Meléndez Galicia, and Noé Meléndez Galicia (10.872); Margarita Chávez (10.873); Dinora Pérez Valdez (10.875); Felicito Cristóbal Samayoa (10.891); Leandro Barillas (10.903); Oswaldo Luna Aceituno (10.920); Tomás Ventura Chon (10.922); Julio Quevedo Quezada (10.935), and Raúl Sao Villagrán (10.936).  

          In addition, the State is responsible for violating the right to personal liberty set forth at Article 7 of the American Convention to the prejudice of:  

Joaquín Ortega, Teodoro Mejía Aguilar, Arcadio Mejía Velásquez, Efraín Ventura Cifuentes, and Luis Ventura (10.586); Fidelino Raúl Tobías Aparicio, Miguel Angel Rianca Sicay, Gregorio Ramírez y Ramírez, and Juan Pablo Quiejuy (10.609); Mateo de la Cruz (10.610), Aldo Tomás Sicaja and Francisco Alfredo Yuman (10.611); Mario Gómez Castillo (10.612); Emilio Santiago Ronquillo Peralta (10.614); Miguel Angel de León García and Jorge Adalberto Girón (10.618), Arturo Martínez Rodríguez and Alfredo Ubido Segura (10.622); Ricardo Alberto Ajcajbón (10.653); Guilgo Teodoro Zapeta Vásquez (10.658); Pedro Rivera Matom (10.667); David Gutiérrez Morales, Everardo Boteo Morales, Juan Orellana Chacón, and Israel Chacón Aquino (10.692); Orlando Estuardo Alvarado Morales (10.714); Jorge Simaj Saquil, María Azurdia, and Jorge Luis Simaj Azurdia (10.763); Félix Tizul Piruch (10.764); Gloria Patzay Vicente (10.780); Omar Cain Carvajal Leiva (10.782); Oscar Aguilar Saquic (10.787); Cristóbal Chico López, Wenceslao Santiago Saavedra, and Marvin Estuardo Castillo Saavedra (10.788); Ricardo Rivera Ovando (10.852); Pedro García Chuc (10.855); Carlos Evercio Melgar Pocón (10.858); Byron Estuardo Polanco (10.869); Margarita Chávez (10.873); Felicito Cristóbal Samayoa (10.891); and Raúl Sao Villagrán (10.936).  

As well as the right to humane treatment enshrined in Article 5 of the American Convention, and its duty to prevent and punish torture as set forth at Articles 1, 6, and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of:  

Fidelino Raúl Tobías Aparicio, Miguel Angel Rianca Sicay, Gregorio Ramírez y Ramírez, and Juan Pablo Quiejuy (10.609); Mateo de la Cruz (10.610), Arturo Martínez Rodríguez and Alfredo Ubido Segura (10.622); Pedro Rivera Matom (10.667); Orlando Estuardo Alvarado Morales (10.714); Félix Tizul Piruch (10.764); Gloria Patzay Vicente (10.780); Omar Cain Carvajal Leiva (10.782); Cristóbal Chico López, Wenceslao Santiago Saavedra, and Marvin Estuardo Castillo Saavedra (10.788); Ricardo Rivera Ovando (10.852); Margarita Chávez (10.873); Felicito Cristóbal Samayoa (10.891); and Raúl Sao Villagrán (10.936).  

Further, the State is responsible for violating the rights of the child established in Article 19 of the American Convention, to the detriment of minors:  

Magdalena Efranin Fray Santos (10.687); Toribio López and Tiburcio Carrillo (10.755); Jorge Luis Simaj Azurdia (10.763); and Oscar Aguilar Saquic (10.787).  

Accordingly, the State is responsible for breach of the obligation imposed by Article 1(1) to respect and guarantee the rights enshrined in the Convention with respect to all the victims named above.

          VIII.    RECOMMENDATIONS  

          290.    Based on the analysis and conclusions of this report, the Inter-American Commission on Human Rights recommends 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.       To adopt the measures necessary for the family members of the victims identified in paragraph 287 to receive adequate and timely reparation for the violations established herein.  

IX.       PUBLICATION  

          291.    On February 24, 2000, the Commission transmitted Report Nº 05/00, the text of which is found supra, to the Guatemalan State and the petitioners, pursuant to Article 51(2) of the American Convention, and gave the State one month to implement the preceding recommendations.  

          292.    On March 3, 2000, during the 106^th Regular Session of the IACHR, at the hearing held on "the general situation of human rights in Guatemala," the representatives of the Guatemalan State stated that they would like to sign an agreement or commitment to implement the recommendations issued by the IACHR in this report. On April 13, 2000, the Commission received from the Guatemalan State its formal commitment to implement the recommendations of this report, the text of which is set forth below:

COMMITMENT BY THE GOVERNMENT OF THE REPUBLIC OF GUATEMALA TO IMPLEMENT THE RECOMMENDATIONS ISSUED BY THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS IN ITS REPORT Nº 5/00 (CASE 10.586 ET AL.)

I.        BACKGROUND

          The Republic of Guatemala, through the Presidential Commission on Coordination of Executive Policy concerning Human Rights (COPREDEH), desirous of promoting and protecting human rights and in view of their importance to the consolidation of democracy in Guatemala and absolute respect for human rights as the basis for a just, proper, democratic, and representative society, has resolved to initiate a new process as part of the development of human rights in the Guatemalan State.

          Within this context, COPREDEH is initiating talks with individuals who have been victims of human rights violations and/or with family members of such persons whose cases are before the inter-American system for the promotion and protection of human rights--talks intended to bring about friendly settlements, which seek to discover the facts, circumstances, and other elements that may lead to the prosecution and punishment of those found to be responsible for the violations and to compensation of the victims by the State.

          The Guatemalan State, in strict compliance with the obligations it undertook by signing the American Convention on Human Rights, and with other human rights instruments under international law, through COPREDEH, has resolved to implement the recommendations of Report Nº 5/00 on Case 10.586 et al., issued by the Inter-American Commission on Human Rights on February 24, 2000.

II.        PARTY APPEARING 

          On express instructions from Alfonso Portillo, the Constitutional President of the Republic of Guatemala, Victor Hugo Godoy, in his capacity as Chair of the Presidential Commission on Coordination of Executive Policy concerning Human Rights (COPREDEH), appears and sets forth the Commitment to Implement the Recommendations issued by the Inter-American Commission on Human Rights.

III.      RESPONSIBILITY OF THE STATE AND ACCEPTANCE OF THE FACTS

          The Guatemalan Government recognizes the institutional responsibility of the State stemming from noncompliance with Article 1(1) of the American Convention on respect for the rights and freedoms recognized in the Convention, and Articles 1, 2, and 3 of the Political Constitution of the Republic of Guatemala regarding each and every one of the individuals listed in Report Nº 5/00 (Case 10.586 et al.) of February 24, 2000, owing to its failure to guarantee the essential rights recognized in Articles 4, 5, 7, 8, 19, and 25 of the American Convention on Human Rights and other international instruments ratified by Guatemala, under the terms indicated in the aforementioned report.

          Against this background, the Guatemalan State acknowledges that the facts described in Report No. 5/00 (Case 10.586 et al.) of February 24, 2000 occurred and undertakes to again take up the recommendations contained in that report; to promote domestic legal proceedings so that the circumstances surrounding those facts may be ascertained; and, if appropriate, to take the necessary corrective measures to compensate the victims or, in their absence, their family members.

IV.      THE SEARCH FOR THE VICTIMS' FAMILY MEMBERS

          As there is insufficient information to immediately locate the victims' family members, the Guatemalan State undertakes to make every effort to determine their whereabouts so that they may receive the corresponding compensation, in accordance with Section V of this declaration.

V.        COMPENSATION

          The Guatemalan State undertakes to compensate the family members of the victims listed in Report Nº 5/00 (Case 10.586 et al.), of February 24, 2000.  As to date it has been impossible to locate those individuals, the Guatemalan State undertakes to determine, with the victims or their family members, at a later date and in the usual way, the compensation that the State will make, on the basis of the principles and criteria established in the Inter-American System for the Promotion and Protection of Human Rights.

          If the victims' family members are not located within a reasonable period, compensation shall be made so as to benefit society in general, in the areas where the facts occurred.  Such compensation shall be determined on the basis of agreement reached by the representatives of the Guatemalan State and the petitioners in Case 10.586 et al.

VI.      PUNISHMENT OF THOSE RESPONSIBLE

          Subject to the provisions of the Guatemalan legal and constitutional system, the Guatemalan State undertakes to initiate investigations of the facts described in Report Nº 5/00 (Case 10.586 et al.), of February 24, 2000, and, insofar as possible, to bring civil, criminal, and administrative proceedings against those individuals who, it is alleged, in the exercise of their public functions or owing to their abuse of state power, participated in the alleged violation and/or, if the investigations do not establish that elements or agents of the State participated in these violations, to determine the criminal and civil liability of those private individuals who may have participated in and committed the unlawful acts.  In addition, insofar as it is able and in keeping with the nature and circumstances of each case, the Guatemalan State undertakes to bring legal proceedings against individuals who, by omission, negligence, or incompetence, may have delayed the administration of justice, in terms of obstruction, denial, or delay of the prompt, effective application of justice.

VII.     RIGHT TO SEEK RECOVERY OF COMPENSATION

          The Guatemalan State reserves the right to seek to recover any compensation it makes, pursuant to the provisions of the Guatemalan legal system, from any persons responsible for the violation of human rights, through a final judgment handed down by the Guatemalan courts, which may not be appealed, subject to the provisions of domestic law in this area and pursuant to Articles 8 and 25 of the American Convention on Human Rights.

VIII.    REPORTING

          The Guatemalan State, through COPREDEH, undertakes to report every four months to the Inter-American Commission on Human Rights on progress made in complying with the obligations assumed by the State under this declaration.

          In keeping with its usual practice and the obligations imposed on it by the American Convention, the Inter-American Commission on Human Rights shall monitor compliance with this agreement.

X.        LEGAL BASIS

          This undertaking to comply with the recommendations made by the Inter-American Commission on Human Rights is signed on the basis of respect for the human rights recognized in the American Convention on Human Rights and other international human rights instruments; the fundamental principles established in the Political Constitution of the Republic of Guatemala; and the Peace Agreements signed by the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG) [Guatemalan National Revolutionary Unity].  

          293.    Under the aforementioned Article 51(2), it is the responsibility of the Commission at this stage to evaluate the measures taken by the Guatemalan State to comply with the recommendations and remedy the violations established.  

          294.    The information received indicates that the Guatemalan State has not yet fully complied with the recommendations made in Report Nº 05/00 of the Commission. However, the IACHR must highlight and commend the Guatemalan States' acknowledgement of its responsibility for the facts described in this Report and its intention to comply with the Commission's recommendations, expressed by the Guatemalan State at the hearing on the human rights situation in Guatemala and in the document transcribed above.  The Commission urges the Guatemalan State to comply with each of the commitments it has made.  The Commission will monitor such measures as the Guatemalan State may adopt to comply with the above-mentioned recommendations and the commitment it has made.  

          295.    In view of the foregoing considerations and of the provisions of Article 51(3) of the American Convention and Article 48 of the IACHR Regulations, the Commission decides:  to reiterate the conclusions and recommendations contained in Sections VII and VIII above; to urge the Guatemalan State to comply with the commitment it has made; to publish this report; and to include it in the Annual Report of the IACHR to the General Assembly of the OAS.  The Commission, pursuant to the provisions of the instruments governing its mandate, will continue to evaluate the measures adopted by the Guatemalan State in relation to the aforementioned recommendations and the commitment it has made, until the State has complied fully with those recommendations and that commitment.  

Approved by the Inter-American Commission on Human Rights, on April 13, 2000. (Signed by): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan E. Méndez, Second Vice-Chairman; Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, members of the Commission.