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REPORT
Nº 40/00
CASE 10.588 ISABELA
VELÁSQUEZ AND FRANCISCO VELÁSQUEZ
CASE 10.608 RONAL HOMERO MOTA ET AL.
CASE 10.796 ELEODORO POLANCO ARÉVALO
CASE
10.856 ADOLFO RENÉ AND LUIS PACHECO DEL CID
CASE 10.921 NICOLÁS MATOJ ET AL.
GUATEMALA[1]
April 13, 2000
I.
SUMMARY
1.
During 1990 and 1991, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received five petitions alleging the forced
disappearance of: Isabela and Francisco Velásquez; Ronal Homero Mota, Julio de
Jesús Maldonado, José Felipe Alvarez Andrés; Eleodoro Polanco Arévalo;
Adolfo René and Luis Pacheco del Cid; Nicolás Matoj, Bernal de Matoj, Juan
Matoj, Nicolás Matoj (son), Francisco Matoj, Cecilia Matoj, María Matoj,
Francisco Rivera and family, and Jacinto Terraza and family, respectively. In each instance, the petitioners alleged that the victim or
victims had been disappeared by soldiers of the Guatemalan Army or individuals
linked with the Guatemalan security forces.
2.
The cases listed above were opened pursuant to the receipt of these
petitions, and processed according to the terms of the American Convention on
Human Rights (hereinafter “the Convention”) and the Commission’s
Regulations. In carrying out
that processing, having ascertained that each case dealt with an alleged forced
disappearance at the hands of members of or persons linked to the security
forces, and having considered the common nature and time frame of the
allegations at issue, the Commission decided, pursuant to Article 40 of its
Regulations, to accumulate these cases and address them in a single report. The present report examines whether the Republic of Guatemala
(hereinafter “Guatemala” or “the State”) bears international
responsibility for the alleged forced disappearance of the victims and for the
corresponding violation of Articles 1(1), 3, 4, 5, 7, 8, 19 and 25 of the
American Convention.
3.
The State, for its part, provided limited information in response to the
Commission’s requests for information. In
essence, in two of those cases the State contested the admissibility of the
petitions, maintaining that its mechanisms of domestic jurisdiction were seized
of the matters, and that the petitioners had yet to exhaust domestic remedies as
required by the Convention. With
respect to the three remaining cases, the State reported that its files
disclosed no record of denunciations having been made at the domestic level, and
indicated that it was awaiting the receipt of further information that would
enable it to investigate the claims made.
4. As
set forth in the report that follows, having examined the contentions of the
parties, the Commission decided to admit the present case, and found the State responsible
for violations of the rights to life, humane treatment, personal liberty, and
recognition as a person before the law, as well as to judicial guarantees and
protection, as established in Articles 4, 5, 7, 3, 8 and 25 of the American
Convention, with respect to the forced disappearance of Isabela and Francisco
Velásquez; Ronal Romero Mota, Julio de Jesús Maldonado, José Felipe Alvarez
Andrés; Eleodoro Polanco Arévalo; Adolfo René and Luis Pacheco del Cid; Nicolás
Matoj, Bernal de Matoj, Juan Matoj, Nicolás Matoj (son), Francisco Matoj,
Cecilia Matoj, María Matoj, Francisco Rivera and family, and Jacinto Terraza
and family. With respect to the
several victims who were minors, the State was held responsible for having
failed to provide the measures of protection for children required under Article
19. The State was accordingly held
responsible for having failed to uphold its Article 1(1) obligation to respect
and ensure those rights under the Convention.
As a consequence, the Commission recommended that the State carry
out an impartial and effective investigation to determine the circumstances of
the forced disappearance of the victims, and to sanction those responsible in
accordance with domestic law, and that it adopt the measures necessary to ensure
that the victims’ family members receive fair and prompt reparation for the
violations established.
II. FACTS ALLEGED, PROCESSING
BEFORE THE COMMISSION AND POSITION OF THE STATE
CASE 10.588: ISABELA VELÁSQUEZ AND FRANCISCO VELÁSQUEZ
A.
Facts alleged
5.
The petition, dated April 7, 1990, alleged that, on March 13, 1990,
soldiers of the Guatemalan Army arrived in Chajul, in the Department of El Quiché,
where they proceeded to persecute members of the community, and destroy 35
houses, a religious center and agricultural lands.
The petitioners alleged that, in the course of effectuating this alleged
incursion, the soldiers had disappeared Isabela Velásquez, and her son
Francisco, a minor then 13 years of age.
6.
Neighbors reportedly witnessed the abduction, and indicated that the
mother and child had been agricultural laborers in Chajul.
The petitioners alleged that, during the same operation, Mr. Pedro
Gallego de León was tortured and killed, and his wife and sons, 2 and 6 years
of age, were also disappeared. According
to the petition, these events were denounced before the Office of the Ombudsman
for Human Rights and reported to the local press.
Finally, the petitioners alleged that these violations were carried out
as part of a policy of persecution effectuated by the Army against populations
in El Quiché and Huehuetenango displaced by the armed conflict.
B.
Proceedings before the Commission
7.
The Commission opened Case 10.588 on July 30, 1990.
By a note of that date, the pertinent parts of the petition were
transmitted to the State of Guatemala with a request for information in response
within a period of 90 days. On
January 28, 1991, the Commission reiterated its request for information to the
State, with a response requested within 30 days.
The State acknowledged receipt of this communication by means of a note
of February 11, 1991. In a letter
dated June 18, 1992, the Commission asked the petitioners to provide additional
information within 45 days. On
March 9, 1994, the Commission reiterated its request to the State for
information, indicating that, absent a response, it might consider the
application of Article 42 of its Regulations, which allows it to presume the
facts denounced to be true as long as other evidence does not lead to a contrary
conclusion.
8.
The State provided a brief report on the case in a note dated April 18,
1994. On May 6, 1994, that information was transmitted to the petitioners, with
the submission of observations in response requested within 45 days.
That request to the petitioners was reiterated on September 7, 1994, with
information requested within 60 days. In
a March 6, 1996, communication to the State, the Commission requested
information on the results of any investigations effectuated with respect to the
facts denounced.
9.
The Commission addressed the State and the petitioners, by means of notes
of December 2 and 8, 1998, respectively, for the purpose of requesting updated
information on the case. The
Commission also placed itself at the disposal of the parties for the purpose of
facilitating a friendly settlement in accordance with Article 48(1)(f) of the
American Convention, if they should wish to avail themselves of this procedure.
The parties were asked to respond on both points within 30 days.
On December 17, 1998, the State requested an extension of one month to
present the corresponding information. In
a note of December 28, 1998, the Commission granted the State an extension to
expire on January 30, 1999. On
January 20, 1999, the State requested a further extension of 60 days to collect
and present information. The
Commission replied with a note of January 27, 1999, granting a 60 day extension.
By a note of March 30, 1999, the State requested an extension of 60
additional days. The Commission responded on April 9, 1999, indicating that, in
view of the additional time already granted and its work program, a further
extension would not be possible.
C.
Position of the State
10.
In its response of April 18, 1994, the State reported that, after it had
received the complaint in 1990, it had requested that the General Headquarters
of the National Police and the Public Ministry provide relevant
information concerning the allegations. The
State indicated that both institutions had searched their records, but that
neither the police nor the judicial files contained any indication that a
denunciation had been filed, or other relevant information.
The State indicated that, having received this information, it had
requested that the National Police, through its regional headquarters in the
Department of El Quiché, initiate the corresponding investigation to establish
the truth or falsehood of the complaint. Accordingly, the State reported that it
was awaiting the results of this investigation.
CASE
10.608: RONAL HOMERO MOTA, JULIO DE JESÚS MALDONADO AND JOSÉ FELIPE ALVAREZ
ANDRÉS
A.
Facts alleged
11.
The petition, dated July 27, 1990, alleged the disappearance of Ronal
Homero Mota, Julio de Jesús Maldonado and José Felipe Alvarez Andrés,
agricultural laborers who lived in San Lucas Tolimán, Sololá.
The petitioners alleged that, on July 11, 1990, these three men went out
to hunt at one in the afternoon, as was their customary practice, but had never
returned. The petitioners reported that the owner of a restaurant in
San Lucas Tolimán had heard more about their fate from some policemen, who
allegedly told him that they had captured the men in question and turned them
over to the Army. Family members of
the victims then went to the military detachment of Atitlán with a judge, where
they were turned away with the explanation that they must return accompanied by
the Procurador of Sololá in order to
obtain information regarding their missing relatives. Family members subsequently learned that their loved ones
were no longer at that base, but had been transferred from Sololá closer to
Guatemala City. Nothing further was
known about the missing men since that date. Finally, the petitioners reported
that the matter had been denounced before the Office of the Ombudsman for Human
Rights.
B.
Proceedings before the Commission
12.
The Commission opened case 10.608 on August 15, 1990.
On August 17, 1990, it transmitted the pertinent parts of the petition to
the State, with information in response requested within 90 days.
By means of a note of January 23, 1991, the State submitted a brief
response, which was in turn submitted to the petitioners on January 29, 1991,
with observations and information requested within 30 days.
By means of brief communication dated June 28, 1991, the State provided
updated information on the case and observations.
This information was transmitted to the petitioners on July 17, 1991,
with the submission of corresponding observations requested within 30 days. On June 15, 1992, the Commission reiterated that request to
the petitioners, with additional information requested within 45 days.
On November 19, 1993, the Commission asked the Government for updated
information about the domestic proceedings.
Pursuant to the December 14, 1993 request by the State for an extension
of time to respond, on January 13, 1994, the Commission addressed the State to
indicate that a 30 day extension had been granted.
On February 17, 1994, the Commission granted the Government an additional
extension of 30 days, which the State had requested in a letter dated February
10, 1994.
13.
By means of a communication dated February 17, 1994, the State provided
additional information concerning the case.
On March 3, 1994, the Commission transmitted that information to the
petitioners, with observations or additional information requested within 45
days. The Commission reiterated the
latter request to the petitioners on July 19, 1994.
14.
The Commission addressed the State and the petitioners, by means of notes
of December 2 and 8, 1998, respectively, for the purpose of requesting updated
information on the case. The
Commission also placed itself at the disposal of the parties for the purpose of
facilitating a friendly settlement in accordance with Article 48(1)(f) of the
American Convention, if they should wish to avail themselves of this procedure.
The parties were asked to respond on both points within 30 days.
On December 17, 1998, the State requested an extension of one month to
present the corresponding information. In
a note of December 28, 1998, the Commission granted an extension to expire on
January 30, 1999. On January 20,
1999, the State requested a further extension of 60 days to collect and present
information. The Commission replied
with a note of January 27, 1999, granting a 60 day extension.
By a note of March 30, 1999, the State requested an extension of 60
additional days. The Commission responded on April 9, 1999, indicating that, in
view of the extensions already granted and its work program, a further extension
would not be possible.
C.
Position of the State
15. The State initially reported that, on June
15, 1990, criminal process 540-90 had been initiated before the Court of First
Instance of Sololá in response to the disappearance of Ronal Homero Mota, Julio
de Jesús Maldonado and José Felipe Alvarez Andrés.
The Public Ministry had asked the presiding judge to order the Department
of Criminal Investigations of the General Directorate of the National Police to
initiate a thorough investigation as to the whereabouts of the three missing
persons. In its submission of June 28, 1991, the State reported that the
criminal process was pending in the summary phase, and requested that, as
domestic remedies had not been exhausted, the Commission declare the case
inadmissible.
16.
In its February 17, 1994 submission, the State further reported that, on
July 6, 1990, the local Justice of the Peace of San Lucas Tolimán had gone to
the military detachment of the Cantón
Panabaj, in the Municipality of Santiago Atitlán, Sololá in order to execute a
writ of exhibición personal [a form of habeas
corpus] in favor of the three victims.
The wives of the three men had been present for this measure, the result
of which was “negative.” The
State reported that the Department of Criminal Investigations of the General
Directorate of the National Police had issued a report concerning its
investigation on July 22, 1990, which stated that officials of the department
had interviewed the wives of the disappeared and some of their neighbors. The
State indicated that, given the fact that neither the wives nor the neighbors
gave a detailed version of the events or presented evidence of any kind, no
certified facts from the investigation could be transmitted to the court in
order to resolve the case. The criminal process therefore remained in its
initial stage and the investigations were continuing.
CASE 10.796: ELEODORO POLANCO ARÉVALO
A.
Facts alleged
17. On February 13, 1991, the Commission received
a complaint concerning the alleged disappearance of Eleodoro Polanco Arévalo,
resident of Section J, Lot Z-17, Colonia Margarita 4 in San Juan Sacatepéquez.
The petitioners alleged that, on January 26, 1991, unidentified armed
men, linked with the security forces but dressed in civilian clothing, broke
down the door of Eleodoro Polanco Arévalo’s home.
They threatened to kill the family members present, and then proceeded to
the room where Mr. Polanco had been sleeping. They shot and wounded him, and
forcibly carried him away with them. The
victim has neither been seen nor heard from since that time. The petitioners
indicate that his father-in-law, Celso Nasario Sicay, denounced these facts to
the National Police, and that the crime was reported to the media as well.
B.
Proceedings before the Commission
18.
Case 10.796 was opened on February 27, 1991.
That same date, the pertinent parts of the petition were transmitted to
the State of Guatemala, with the submission of information in response requested
within 90 days. The State
acknowledged receipt on March 6, 1991. On
September 9, 1991, the State submitted its response to the Commission.
On September 20, 1991, the Commission transmitted that information to the
petitioners, with observations and/or information requested within 30 days.
This request was reiterated on March 5, 1992, giving the petitioners 60
days to respond.
19.
On December 1, 1993, the Commission asked the State for additional
information regarding the status of domestic proceedings related to Case 10.796.
On September 6, 1994, the State submitted additional information, which
was duly transmitted to the petitioners on September 16, 1994, with information
or observations in response requested within 45 days. This request was reiterated on October 2, 1995.
The Commission asked the Government for updated information on April 24,
1996.
20.
In communications dated December 2, 1998, the Commission addressed the
State and the petitioners for the purpose of requesting updated information on
the case. The Commission also
placed itself at the disposal of the parties for the purpose of facilitating a
friendly settlement in accordance with Article 48(1)(f) of the American
Convention, if they wished to avail themselves of this procedure.
The parties were asked to respond on both points within 30 days.
On December 17, 1998, the State requested an extension of one month to
present the corresponding information. In
a note of December 28, 1998, the Commission granted an extension to expire on
January 30, 1999. On January 20,
1999, the State requested a further extension of 60 days to collect and present
information. The Commission replied
with a note of January 27, 1999, granting a 60 day extension.
By a note of March 30, 1999, the State requested an extension of 60
additional days. The Commission responded on April 9, 1999, indicating that, in
view of the extensions already granted and its work program, a further extension
would not be possible.
C.
Position of the State
21.
In its response of September 9, 1991, the State informed the Commission
that proceedings had in fact been instituted before the Second Court of First
Instance of Criminal Proceedings of Guatemala City by the father-in-law of the
victim, Mr. Celso Nazario Sicay. The
State reported that cause C-514-91 was pending in the summary stage, and that
the Public Ministry had cited Mr. Sicay in order that he should provide
additional details to enable those responsible to be located.
The State argued that, in view of the pendency of the judicial
proceeding, the case before the Commission was inadmissible on the basis of the
non-exhaustion of domestic remedies.
22.
In its September 6, 1994 submission, the State informed the Commission
that, subsequent to Mr. Sicay’s complaint to the National Police, agents of
the latter had gone to the scene to conduct a search.
Those agents had submitted their report to Court of Criminal Peace of the
Municipality of San Juan Sacatepéquez, which had ordered the first measures of
investigation. The investigation was later transferred to the Second Court of
First Instance, Criminal Branch, as cause 514-91.
In describing the allegations, the State characterized the crime as
having been committed by two assailants. The
State reported that, at a later point (no date was given), National Police
agents had gone to Mr. Sicay’s home to interview him. They learned that he no
longer lived there, and were unable to establish his whereabouts, which impeded
their investigation. The State indicated that, according to its records,
evidence sufficient to accuse anyone specifically had not been found, and Mr.
Sicay had never ratified his denunciation or formally accused anyone.
Pursuant to the entry into force of the new Code of Criminal Procedure on
July 1, 1994, the case had been transferred to the Office of the General
Prosecutor, which would continue investigating until sufficient elements had
been established to justify the opening of the trial phase.
CASE
10.856: ADOLFO RENÉ PACHECO DEL CID AND LUIS PACHECO DEL CID
A.
Facts alleged
23.
The petition, dated April 2, 1991, denounced the alleged disappearance of
Adolfo René Pacheco del Cid, 25 years old, and his brother Luis Pacheco del
Cid, 24 years old, both residents of San Vicente Pacaya, Escuintla.
The wives of the two men then worked in Guatemala City, and lived on 24th
Avenue 6-39, Zone 6, where their husbands would frequently come to visit them.
The petitioners alleged that, on March 16, 1991, during such a visit, the
wives witnessed six armed men abduct Adolfo and Luis from their home in zone 6.
The victims remain disappeared since that date.
The petitioners asserted that the disappearances had been denounced
before the corresponding authorities, and that information had also reached the
press.
B.
Proceedings before the Commission
24.
The Commission opened Case 10.856 on April 10, 1991, and that same day
transmitted the pertinent parts of the petition to the State of Guatemala,
requesting the presentation of information in response within 90 days. The State
acknowledged receipt of the communication on April 24, 1991.
On March 5, 1992, the Commission reiterated that request, and asked for a
response within 60 days. The
Commission sent the State a further reiteration on November 19, 1993, indicating
the possibility of applying the presumption contained in Article 42 of its
Regulations if a response was not forthcoming within 30 days. By means of a note
of December 14, 1993, the State requested an extension of time to respond.
On January 13, 1994, the Commission indicated that a one month extension
had been granted. The Commission
granted the State another 30 day extension on February 17, 1994, pursuant to the
latter’s February 10, 1994 request. On
March 17, 1994, the State requested a third extension, and an additional 30 days
was granted by note of April 27, 1994.
25.
The State submitted its response on June 13, 1994.
This was duly transmitted to the petitioners on June 21, 1994, with
observations and information in response requested within 45 days.
This request was reiterated on September 7, 1994.
26.
The Commission addressed the State and the petitioners, by means of notes
of December 2 and 8, 1998, respectively, for the purpose of requesting updated
information on the case. The
Commission also placed itself at the disposal of the parties for the purpose of
facilitating a friendly settlement in accordance with Article 48(1)(f) of the
American Convention, if they should wish to avail themselves of this procedure.
The parties were asked to respond on both points within 30 days.
On December 17, 1998, the State requested an extension of one month to
present the corresponding information. In
a note of December 28, 1998, the Commission granted an extension to expire on
January 30, 1999. On January 20,
1999, the State requested a further extension of 60 days to collect and present
information. The Commission replied with a note of January 27, 1999, granting a
60 day extension. By a note of
March 30, 1999, the State requested an extension of 60 additional days. The
Commission responded on April 9, 1999, indicating that, in view of the
extensions already granted and its work program, a further extension would not
be possible.
C.
Position of the State
27.
In its response, the State indicated that the organs responsible for
carrying out the investigation were not able to obtain positive results because
they lacked the necessary detailed information to properly effectuate it.
The State reported that it had conducted a thorough study of its
archives, and found no record of a denunciation having been submitted to the
pertinent jurisdictional authorities.
The State indicated that the Department of Criminal Investigation of the
National Police, through its division responsible for disappearances, carried
out an investigation. It had,
however, been unsuccessful because family members of the victims had moved after
the disappearances took place and could not be located for questioning.
The State further reported that the victims’ neighbors had been
unwilling to cooperate with the security forces. Finally, the State indicated that it was awaiting further
information that would enable it to move forward with its investigation of the
alleged disappearances.
CASE
10.921: NICOLÁS MATOJ, BERNAL DE MATOJ, JUAN MATOJ, NICOLÁS MATOJ (Son),
FRANCISCO MATOJ, CECILIA MATOJ, MARÍA MATOJ, FRANCISCO RIVERA AND FAMILY AND
JACINTO TERRAZA AND FAMILY
A.
Facts alleged
28.
The petition, dated July 12, 1991, alleged the disappearance of the Matoj
family, including their minor children, as well as the Rivera family and the
Jacinto family. They had been
agricultural laborers living in San Gaspar Chajul in El Quiché at the time of
the alleged events. The victims
ranged in age from the oldest, Nicolas Matoj, who had been 76, to the youngest
of the minor children. According to
the petition, on June 23, 1991, the Army conducted a violent operation in the
villages of the district, in the course of which soldiers forcibly entered the
homes of the inhabitants and arbitrarily detained the above-mentioned victims.
This had allegedly been done in the presence of witnesses from the
locality. When the operation was
over, the soldiers took the victims with them to an unknown destination, and
nothing further was known of them. The
petitioners state that the facts alleged were denounced to the corresponding
authorities, and to the press.
B.
Proceedings before the Commission
29.
On July 19, 1991, the Commission opened Case 10.921.
On July 22, 1991, it transmitted the pertinent parts of the complaint to
the State, requesting the presentation of information in response within 90
days. The State acknowledged
receipt of that communication on July 26, 1991. On March 5, 1992, the Commission
reiterated that request, and asked for a response within 60 days.
On November 15, 1993, the Commission addressed the petitioners to request
updated information on the case within 60 days.
On November 15, the Commission again reiterated its request for
information to the State, indicating that it would consider applying the
presumption contained in Article 42 of its Regulations if a response was not
forthcoming within 30 days. By
means of a note of December 13, 1993, the State requested an extension of time
to respond. By a note of that same date, the Commission indicated that a
one month extension had been granted. On
April 4, 1994, the State requested a further extension of 30 days, which was
granted by note of April 11, 1994.
30.
The Government submitted its response to the petition on September 28,
1994, which was duly transmitted to the petitioners for observations and/or
information. In a letter dated October 2, 1995, the Commission reiterated
its request to the petitioners, asking for the submission of information within
60 days.
31.
In communications dated December 2, 1998, the Commission addressed the
State and the petitioners for the purpose of requesting updated information on
the case. The Commission also
placed itself at the disposal of the parties for the purpose of facilitating a
friendly settlement in accordance with Article 48(1)(f) of the American
Convention, should they wish to avail themselves of this procedure.
The parties were asked to respond on both points within 30 days.
On December 17, 1998, the State requested an extension of one month to
present the corresponding information. In
a note of December 28, 1998, the Commission granted an extension to expire on
January 30, 1999. On January 20,
1999, the State requested a further extension of 60 days to collect and present
information. The Commission replied
with a note of January 27, 1999, granting a 60 day extension.
By a note of March 30, 1999, the State requested an extension of 60
additional days. The Commission responded on April 9, 1999, indicating that, in
view of the extensions already granted and its work program, a further extension
would not be possible.
C.
Position of the State
32.
The State indicated in its response that the General Directorate of the
National Police, through its regional headquarters in El Quiché, had been asked
to investigate the allegations at issue in the case.
Within that investigation, members of the National Police had interviewed
three members of the Municipal Corporation of San Gaspar Chajul, who stated that
they had no knowledge that the Matoj family had been subject to any such
detention, and that an incident of that nature would generally be reported to
the local authorities. The Public
Ministry reported that no criminal proceedings had been instituted regarding the
disappearance of the Matoj family, neither in the municipality of San Gaspar
Chajul, nor in the Department of El Quiché. The State indicated its disposition
to clarify the situation, and asked the Commission to request that the
petitioners submit more precise information concerning the events alleged in
order to proceed with the pertinent investigations.
Accumulation
of the cases
33. As noted in section I, as a procedural matter
the Commission decided, pursuant to Article 40 of its Regulations, to accumulate
Cases 10.588, 10.608, 10.796, 10.856 and 10.921, and address them in a single
report. This was done on the basis
that, through the processing of these cases, the Commission was able to
ascertain that each dealt with an alleged forced disappearance at the hands of
members of or persons linked with the State security forces.
The allegations thus concerned facts of a similar nature and, moreover,
concerned a common time frame.
III.
ANALYSIS OF ADMISSIBILITY
A.
Competence of the Commission
34.
In accordance with its mandate, the Commission is competent to examine
the subject matter of this complaint, as it concerns alleged violations
implicating Articles 1, 3, 4, 5, 7, 8 and 25 of the American Convention. Guatemala
has been a party to that Convention since its ratification of May 25, 1978, and
that treaty entered into force for all Parties on July 18, 1978.
The allegations at issue concern events subsequent to those dates.
The petitioners have locus
standi to appear pursuant to the terms of Article 44 of the Convention.
In their submissions, the petitioners have stated claims which, if
consistent with other requirements and shown to be true, could tend to establish
the violation of a right protected by the American Convention.
B.
Requirements to admit
a petition
35. 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 resolution in another international inter-governmental
proceeding, nor essentially duplicative of a petition pending or previously
considered by the Commission.
Exhaustion of Domestic
Remedies
36. Article
46 of the American Convention specifies that, in order for a case to be
admitted, "remedies under domestic law [must] 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. When
domestic remedies are unavailable as a matter of fact or law, however, the
requirement that they be exhausted is excused.
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.
Consequently, when a petition indicates that internal remedies have been
unavailable in law or in fact, 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.
37. Each of the five petitions filed before the
Commission claimed that the violations alleged had been reported to the
pertinent domestic authorities. In
Cases 10.588 and 10.608, the petitioners specified that the alleged
disappearance of Mrs. Velásquez and her son, and those of Mr. Mota, Mr.
Maldonado and Mr. Alvarez had been denounced to the Office of the Human Rights
Ombudsman. In the latter case, the petitioners further specified that family
members went to the military detachment of Atitlán with a judge, where they
were turned away with the explanation that they would have to return accompanied
by the prosecutor from Sololá in order to obtain information regarding their
missing relatives. In Case 10.796,
the petitioners specified that the presumed disappearance of Mr. Polanco had
been reported to the National Police. In
Cases 10.856 and 10.921, the petitioners indicated simply that the alleged
disappearances of the brothers Pacheco del Cid, and the Matoj family,
respectively, had been denounced before the competent authorities.
The petitions disclosed generally that, notwithstanding that the State
had been placed on notice of the disappearances alleged, the latter had failed
to effectively seek or obtain information as to the whereabouts or fate of the
victims.
38. For its part, the State expressly
controverted the admissibility of two of the five cases, arguing that criminal
proceedings had been initiated in Case 10.608, concerning the alleged
disappearance of Mr. Mota, Mr. Maldonado and Mr. Alvarez, and in Case 10.796,
concerning the alleged disappearance of Mr. Polanco. In both instances the State
asserted that, given the pendency of these criminal processes, the petitioners
had failed to exhaust domestic remedies as required by the American Convention,
and the cases should therefore be declared inadmissible.
39.
With regard to Case 10.608, the State indicated that, on July 6, 1990,
the local Justice of the Peace of San Lucas Tolimán had gone to the military
detachment of the Cantón Panabaj, in the Municipality of Santiago Atitlán,
Sololá, to execute a writ of habeas
corpus in favor of the three victims. The
State reported that the result of the procedure had been “negative,” without
further details, and without controverting the petitioners’ assertion that the
Justice and family members were turned away with the explanation that they would
have to return with the prosecutor of Sololá in order to obtain the information
they were seeking. With respect to the criminal investigation, the State
reported that the pertinent office of the National Police had issued a report
concerning its investigation, dated July 22, 1990, which stated that it had been
unable to uncover relevant evidence to transmit to the court charged with the
case. The State reported that
process 540-90 remained pending in its initial stage before the Court of First
Instance and that investigations were continuing.
40. 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."
This is necessarily so because cases of forced disappearance
"require urgent action by the authorities."
According to the information before the Commission, the habeas
corpus petition in this case was unsuccessful because the judge attempting
to carry it out was obstructed in his duties by military officials.
In any case, according to the record before the Commission, the writ
produced no results with respect to clarifying the whereabouts or fate of the
victim. In general, the writ of habeas
corpus is the proper remedy in the case of a forced disappearance, and a
petitioner in such a case need not invoke other remedies to meet the standard
set in Article 46(1)(a).
The State nonetheless argued that criminal process 540-90 offered and
provided an effective remedy. Although
the filing of a writ of habeas corpus
is sufficient to meet the admissibility requirements in the present case, the
Commission will nonetheless review the criminal process pursued in this and Case
10.796 below to determine whether they offered available and effective relief
for the violations alleged.
41. With respect to Case 10.796, the alleged
disappearance of Mr. Polanco was denounced before the National Police, and
criminal process 514-91 was opened as a result. It had been initiated under the
authority of a local court, and was later transferred to the Attorney
General’s Office pursuant to the entry into force of the new Criminal
Procedure Code in mid-1994, where it presumably remains pending.
42.
With respect to process 514-91 concerning Mr. Polanco, as well as process
540-90 at issue in Case 10.608, concerning Mr. Mota, Mr. Maldonado and Mr.
Alvarez, the Commission observes that the
formal existence of legal remedies is not, in and of itself, sufficient to show
that they offer the available and effective relief required under the terms of
Article 46(1)(a).
An adequate remedy is capable of protecting the right at issue,
and an effective remedy is capable of producing the result for which it
was designed. In
this regard, the record before the Commission discloses that these criminal
investigations have done neither. Once
the State was placed on notice of the alleged disappearance of Mr. Polanco, and
of Mr. Mota, Mr. Maldonado and Mr. Alvarez, it had a duty de
oficio to effectuate the relevant investigations.
While the State complained that it lacked sufficiently detailed
information to investigate, the record reflects no serious efforts to
investigate the whereabouts or fate of the victims on the basis of the
rudimentary data that was available (which included, inter alia, such essentials as the name of the victim, the date and
place of the facts, and general allegations as to responsibility).
In Case 10.796, the record simply reflects no serious efforts to
investigate the whereabouts or fate of the victim.
In Case 10.608, as noted, the judge attempting to execute the habeas
corpus writ was reportedly impeded from doing so, and the record discloses
no further attempts to execute it, or to investigate the fate of the three
victims, or to bring charges against the military officials who reportedly
obstructed the judge in his official functions.
43.
Further, according to the record, it must be presumed that these
investigations remain pending without conclusion.
Given that almost nine years have passed since the criminal processes
were initiated, an issue of undue delay necessarily arises.
While any criminal investigation will
necessarily have its own requirements, “[t]he rule of prior exhaustion must
never lead to a halt or delay that would render international action in support
of the [presumed] … victim ineffective.”
As a general rule, a criminal investigation must be conducted promptly,
not only to protect the interests of the victim, but to safeguard the rights of
any person thereby placed under suspicion.
44. The State did not expressly controvert the
admissibility of the remaining three cases.
With respect to these cases, 10.588, 10.856 and 10.921, the State
contested the petitioners’ allegations that denunciations had been filed with
the appropriate officials, indicating that a review of records by the National
Police and Public Ministry disclosed no denunciations filed with respect to the
alleged disappearance of Mrs. Velásquez and her son, the brothers Pacheco del
Cid and the Matoj family et al.,
respectively. Further, with respect
to Case 10.588, the State indicated that it had requested that the National
Police investigate the information in the petition, and was awaiting the
results. With respect to Cases
10.856 and 10.921, the State indicated that it was awaiting receipt of
additional information that would enable it to pursue further investigations.
45.
With respect to these cases, the Inter-American Court of Human Rights has
explained that the State’s failure to contest admissibility on this ground, or
to provide relevant information with respect to the non-exhaustion of remedies
is conclusive. “[T]he rule
of prior exhaustion is a prerequisite established in favor of the State, which
may waive its right, even tacitly, and this occurs, inter
alia, when it is not timely invoked.”
46.
With respect to all five cases, the Commission must also take note of the
prevailing conditions with respect to the availability and efficacy of judicial
remedies for alleged disappearances at the time of the events in question.
In its Annual Reports for 1989-90, 1990-91, and 1991, each dealing with
the immediately preceding period, the Commission expressed grave concern with
respect to the phenomena of disappearances in Guatemala and the inability of the
judiciary to respond. In 1990, the
Commission reported that, in addition to its inability to control the violence
and its own security forces, “the present Government is also tainted by the
inaction of organs in the legal system which have been called upon to
investigate and punish” disappearances and other human rights violations.
“The judges of this system simply do not conduct thorough
investigations because they have been terrorized by what has happened to others
who have performed investigations….”
In 1991, the Commission quoted an Assistant Ombudsman for Human Rights to
the effect that “flagrant human rights violations continue to occur with
absolute impunity in Guatemala” and that the country “is going back to the
dark past of the 1980’s when we lived amid virtual state terrorism.” Both
this Commission and the Commission for Historical Clarification particularly
singled out the inefficacy of writs of habeas
corpus in the period leading up to the facts of the present cases.
The rule of exhaustion of domestic
remedies does not require the invocation of remedies where this would place the
physical integrity of the petitioner at risk, or where this offers no
possibility of success.
47. On the
basis of the foregoing considerations with respect to the specific
characteristics of these cases on record before the Commission, as well as those
relating to the availability and efficacy of domestic remedies more generally
during the time period in question, the Commission finds the requirement of
prior exhaustion to have been satisfied in Case 10.608, with respect to which a
writ of habeas corpus was filed.
The requirement is excused in the remaining cases on the basis that the
Guatemalan judiciary did not offer proper due process to victims of human rights
violations during this period, victims were impeded from pursuing such remedies,
and, moreover, such remedies were subject to undue delay.
Timeliness
48.
In accordance with Article
46(1)(b) of the
Convention, a petition must be presented in a timely manner, namely, within six
months from the date on which the complaining party was notified of the final
judgment at the domestic level. This
rule ensures legal certainty and stability once a decision has been taken.
When there has been no final judgment, as with the present cases, Article
46(2) indicates that, insofar as this is attributable to a lack of due process,
denial of access to remedies, or unwarranted delay, the six months rule does not
apply. In that case, Article 38 of
the Commission’s Regulations establishes that the deadline for presentation
shall be “within a reasonable period of time, in the Commission’s judgment,
as from the date on which the alleged violation of rights has occurred,
considering the circumstances of each specific case.”
As this provision indicates, the six months rule does not apply where the
complaint concerns a continuing violation.
49.
The petitions filed in these five cases were presented promptly, within
several weeks to several months of the alleged disappearances, and the State has
presented no exception in this regard. In
any event, it should be noted that each case deals with an alleged forced
disappearance, which is, by definition, a continuing violation.
Additionally, the petitioners alleged
having invoked domestic remedies, without results, as is analyzed above.
Furthermore, these cases deal with crimes that required prosecution de
oficio, and the Guatemalan State had the obligation to investigate them and
process the corresponding causes of action.
Over eight years have transpired with no substantive results.
Under these circumstances, the Commission considers that the requirement
of timely presentation is satisfied.
IV.
FRIENDLY SETTLEMENT
50.
Both parties were notified of the Commission’s disposition to
facilitate a friendly settlement should they wish to invoke that procedure
established in Article 48(1)(f) of the Convention.
Neither party manifested their interest in initiating the procedure in
the time period provided. Accordingly, as the parties were given the opportunity to
avail themselves of the procedure and effectively rejected that possibility, the
Commission now proceeds to its analysis of the merits of the matter at issue.
V. ANALYSIS OF THE MERITS
A.
Preliminary considerations with respect to the facts
51. The
starting point for the Commission’s analysis of the facts is that, according
to the record, Isabela and Francisco Velásquez, Ronal Homero Mota, Julio de Jesús
Maldonado, José Felipe Alvarez Andrés, Eleodoro Polanco Arévalo, Adolfo René
and Luis Pacheco del Cid, Nicolás Matoj, Bernal de Matoj, Juan Matoj, Nicolás
Matoj, Francisco Matoj, Cecilia Matoj, María Matoj, Francisco Rivera and
family, and Jacinto Terraza and family have neither been seen nor heard from
since the dates of their alleged disappearances in 1990 and 1991.
The State has presented no information to the contrary.
52. The
Commission has carefully analyzed the evidence of State responsibility for these
disappearances based on their specific characteristics, as well as their
relation to the general characteristics of disappearances during the period in
question denounced before and reported by this Commission and other reliable
sources. With respect to making a
determination as to the nature of the participation of State agents, if any, in
the violations alleged, the Commission has grouped the cases into those where
the allegations and information on record directly implicate State agents, and
those with respect to which that information refers to persons “linked with
the security forces.”
53. The
allegations and information on record in Cases 10.588, 10.606 and 10.921
directly implicate the participation of State agents.
In Case 10.588, the petitioners alleged that, on March 13, 1990, soldiers of the Guatemalan Army arrived
in Chajul, in the Department of El Quiché, where they proceeded to persecute
members of the community, disappearing Isabela Velásquez and her minor son
Francisco, attacking other residents, and destroying homes, a religious center
and fields. These actions
reportedly took place in the presence of numerous witnesses. The petitioners
alleged that these events were part of a policy of persecution effectuated by
the Army against sectors of the population in El Quiché and Huehuetenango
displaced by the armed conflict.
54. Case
10.608 involves allegations that Ronal Homero Mota, Julio de Jesús Maldonado and José
Felipe Alvarez Andrés, who lived in San Lucas Tolimán, Sololá, were detained
by agents of the National Police when they went out to hunt on July 11, 1990.
They were reportedly then turned over to the Guatemalan Armed Forces.
The policemen in question themselves reportedly described the events to a
local resident. According to the record, on July 6, 1990, the local Justice of
the Peace of San Lucas Tolimán had gone with the wives of the victims to the
military detachment of the Cantón Panabaj, in the Municipality of Santiago
Atitlán, Sololá to effectuate a writ of habeas
corpus, only to be turned away.
55. In Case
10.921, the petitioners alleged that, on June 23, 1991, the Army conducted a
violent operation in the district San Gaspar Chajul in El Quiché, in the course
of which, soldiers forcibly entered the homes of the inhabitants and arbitrarily
detained members of the Matoj family, including minor children, as well as the
Rivera and Jacinto families. This
reportedly took place in the presence of numerous witnesses from the community.
When the operation was over, the soldiers forcibly carried the victims
off to an unknown destination.
56.
The information submitted in these three cases is explicit in identifying
State agents as the perpetrators of the violations alleged.
It provides certain important details, and is, moreover, internally
consistent. The State, for its part, has provided no substantive
information with respect to the merits of these claims.
In one case, however, the information the State provided with respect to
domestic remedies tends to support aspects of the petitioners’ allegations.
In Case 10.608, concerning Mr. Mota, Mr. Maldonado and Mr. Alvarez, as
discussed above, the State reported that a writ of habeas
corpus was executed at the military detachment of the Cantón Panabaj, in
the Municipality of Santiago Atitlán, Sololá with “negative” results. The
State provided no information as to why the judge deemed this action to have
been required in the first place, no information as to why the results were
“negative,” and no information as to any subsequent measures.
57. In the
remaining two cases, the allegations set forth indirect or circumstancial
evidence of the participation of State agents, or persons acting at their behest
or with their acquiescence. In each
case, the petitioners referred to perpetrators “linked with the security
forces,” which the Commission understands to mean members of the security
forces, or persons acting in concert with them, or with their acquiescence and
tolerance. In Case 10.796 the
petitioners alleged that on January 26, 1991, unidentified men, described as
linked with the security forces but dressed in civilian clothing, broke down the
door of Eleodoro Polanco Arevalo’s home in San Juan Sacatepéquez.
The perpetrators threatened to kill the family members present, and then
shot and wounded the victim, and forcibly carried him away with them.
In Case 10.856, concerning the brothers Pacheco del Cid, the petitioners
alleged that, on March 16, 1991, the brothers’ wives witnessed six armed men,
characterized as linked to the security forces, abduct their husbands from their
home in Zone 6 of Guatemala City.
58.
The events denounced in each of these cases were carried out in an open
and notorious way. In the first case, the armed perpetrators threatened
witnesses with death, and shot and wounded the victim before carrying him off
with them. These perpetrators, who
had gained entry by breaking down the door, and who had carried their victim off
bleeding in the street, were evidently not concerned with being seen by
witnesses. In the second case, the
six perpetrators likewise openly displayed arms, and abducted their victims from
their home in the presence of witnesses.
Disappearances
in Guatemala during the period
59. The
Commission’s analysis of the facts of the present case cannot be divorced from
their context. As characterized in the report Guatemala: Nunca Más, “The forced disappearance has been one of
the most barbarous selective methods used by Guatemalan intelligence, and was
applied in a widespread manner during certain moments of the armed conflict.”
The practice had as its objective the targeting of certain victims, but also
sought to sow terror in the community and paralyze the victim’s social circle.
60.
In its reports concerning the time period at issue in these five cases,
the Commission described a pattern of forced disappearances in Guatemala. In
1990, the Commission indicated that reports of forced disappearances had risen
alarmingly.
The Commission described the common elements in these disappearances:
they
are carried out openly at any time of day or night, in any place of Guatemala,
and without any concern for eyewitnesses. ….
Nobody, and even less the police, does anything to prevent such acts.
The investigations do not lead anywhere and the responsible organs blame
each other for the failure of the investigation.
61.
The Commission for Historical Clarification reported that the practice
generally was the result of a counterinsurgency strategy implemented through the
Army, the Civilian Self-Defense Patrols (PAC’s), Military Commissioners, the
Treasury Guard, the National Police and other paramilitary actors including
death squads.
Of the total number of forced disappearances registered by the Commission
for Historical Clarification, 92% were linked to a specific security force: of
these, 80% were perpetrated by the Army, principally in rural areas and often in
concert with the PAC’s, 12% by the PAC’s themselves, and 8% by other
security forces, principally the National Police.
62. The
Commission for Historical Clarification identified certain geographic points
where the population was most severely victimized by the practice of
disappearances by State agents. In
the Department of El Quiché, this practice was concentrated in the
municipalities of Ixcán, Chichicastenango, Santa Cruz del Quiché and Chajul.
The disappearances denounced in Cases 10.588 and 10.921 were allegedly
carried out by Army agents in Chajul. In the Department of Guatemala,
disappearances were concentrated in the capital.
Case 10.856 concerns an alleged disappearances by persons linked with the
security forces in Guatemala City. The
allegations at issue in Cases 10.608 and 10.769, concerning disappearances in
San Lucas Toliman, Sololá, and San Juan Sacatepéquez, Chimaltenango,
respectively, took place in Departments marked by this practice and in immediate
proximity to the municipalities singled out as worst affected.
Thus, each of the cases at issue in the present report is related to a
geographic point of concentration for the practice of disappearances.
63.
Integrally linked with the practice of disappearances was a consistent
pattern of denial of justice and due process on the part of the judiciary.
The very institution of the State called upon to respond to
disappearances with investigation and prosecution instead played an active role
in their perpetuation by refusing to accept denunciations, failing to initiate
investigations de oficio, and impeding
and obstructing the administration of justice.
While in urban areas the State was represented through the presence of
various institutions, in rural areas there was little State presence except for
the Army. As one witness before the Commission for Historical Clarification
stated, “How could one go to ask for him [the victim] at the [military] Zone,
when it was they who took him?”
In all areas, urban and rural, “the control, threats and repression
that were exercised against the population” negated the will of family members
to pursue the fate of their loved ones.
“The absence of
official investigations has closed, until the present, the paths to search for
the disappeared.”
64. The
crime of disappearance was described by the Inter-American Court of Human Rights
in the Velásquez Rodríguez Case, and later codified in the Inter-American
Convention on Forced Disappearance of Persons (which Guatemala has signed but
not ratified).
The enforced disappearance of human beings, where an individual is taken
into custody and the authorities deny this fact in order to conceal
responsibility, "is a multiple and continuous violation of many rights
under the Convention."
Where it can be shown that the disappearance of a specific victim is
linked to an official practice of disappearances, “the allegations will have
been proven as long as the evidence presented on both points meets the standard
of proof required in cases such as these.”
The applicable standard of proof takes into account both the seriousness of the
charge against the State, and the need to establish the truth of the allegations
in a convincing manner, and includes the consideration of direct and
circumstantial evidence as well as presumptions.
The Right to personal liberty
65. Any
lawful deprivation of liberty must issue from and be executed by a competent
authority, and must be effectuated in accordance with the substantive and
procedural requirements of domestic law as well as of the American Convention.
A disappearance stands in direct opposition to such requirements, and
outside the boundaries of the rule of law.
66. The
Commission has concluded on the basis of the totality of the information before
it, both with respect to the facts of each specific case and with respect to the
characteristics of forced disappearances practiced in Guatemala during the time
period, that the victims in Cases 10.588, 10.608 and 10.921 were abducted and
deprived of their liberty by State agents, and that the victims in Cases 10.796
and 10.856 were abducted and deprived of their liberty by persons who were
either themselves State agents, or were acting in concert with, or with the
acquiescence and tolerance of such agents.
67. An
individual who is disappeared is also deprived of the right to be taken without
delay before a judge and to invoke the appropriate procedures to obtain a review
of the legality of the detention, in further violation of the provisions of
Article 7 of the American Convention. The right to petition for a determination
of the legality of detention is the fundamental guarantee of a detainee's
constitutional and human rights in the case of a deprivation of liberty by State
agents. "[H]abeas 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."
The right to be treated humanely
68. A
disappearance constitutes an implicit violation of Article 5 due to the nature
of the crime. The victim is
forcibly abducted, detained under clandestine conditions, and held
incommunicado, cut off from contact with the outside world and any form of aid
or protection. This alone would necessarily produce great anxiety and suffering. While it is impossible to verify precisely how long the
victims may have been held by their captors, it may be presumed under the
circumstances that the treatment they were accorded contravened the standards of
Article 5 of the Convention. Additionally, in the case of Mr. Polanco, who was
shot and wounded before being forcibly carried off, it is clear that he would
have been suffering pain from his injuries.
69. In
addition to the harm posed to the victim's physical and mental integrity, a
disappearance by its nature causes great anxiety and suffering for the victim's
loved ones. The victim's family is
unable to come to his aid, unable to clarify his fate, and unable to find any
sense of closure with respect to the victim's fate.
The passage of time gives
rise to a presumption that the victim was killed, but family members have no
means to locate the remains or to provide a proper burial.
The right to life
70. As
established by the Inter-American Court, "The 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, recognized in Article 4 of the
Convention...."
At no point has the
State disputed that Isabela
and Francisco Velásquez, Ronal Homero Mota, Julio de Jesús Maldonado, José
Felipe Alvarez Andrés, Eleodoro Polanco Arévalo, Adolfo René and Luis Pacheco
del Cid, Nicolás Matoj, Bernal de Matoj, Juan Matoj, Nicolás Matoj, Francisco
Matoj, Cecilia Matoj, María Matoj, Franciso Rivera and family, and Jacinto
Terraza and family remain disappeared.
71. While
Guatemalan authorities were on notice of allegations that the victims had last
been seen accompanied by State agents, in Cases 10.588, 10.608 and 10.921, or
persons linked with the Guatemalan security forces, in Cases 10.796 and 10.856,
the record contains no substantive information as to the results of serious
official efforts to investigate their fate. Under such circumstances, the burden
of proof necessarily rests with the State to rebut the presumption of its
responsibility with other information.
72. While
the State has reported on the existence of judicial processes initiated by the
family members of the victims in Cases 10.608 and 10.796, it has provided no
substantive information whatsoever as to the results of any measures of
investigation into the whereabouts or fate of these or other victims.
Consequently, considering: 1) the fact that the victims in Cases 10.588,
10.608 and 10.921, Isabela
and Francisco Velásquez; Ronal Homero Mota, Julio de Jesús Maldonado and José
Felipe Alvarez Andrés; and members of the Matoj, Rivera and Terraza families,
were reportedly last seen in the control of
State agents; 2) that the State does not dispute that they remain disappeared;
3) that a disappearance not only constitutes an arbitrary deprivation of liberty
but also poses serious danger to the personal integrity, security and life of
the victim; and, 4) that over eight years have passed since the victims were
last seen or heard from, it may be presumed that they were in fact deprived of
their right to life, arbitrarily and illegally, by agents of the Guatemalan
State.
73. Considering
that (1) the victims in Cases 10.796 and 10.856, concerning Eleodoro Polanco Arévalo and Adolfo René and Luis Pacheco del Cid,
were reportedly last seen in the control of persons who were either State
agents, or acting at the behest of, or with the acquiescence and tolerance of
State agents, (2) the State does not dispute that they remain disappeared, (3)
that a disappearance not only constitutes an arbitrary deprivation of liberty
but also poses serious danger to the personal integrity, security and life of
the victim; and, 4) that over eight years have passed since the victims were
last seen or heard from, responsibility must be imputed to the State for these
acts which deprived the victims of their right to life, arbitrarily and
illegally, carried out by its agents or by persons acting in concert with or
with the acquiescence and tolerance of such agents.
The right to judicial protection and to be heard in accordance with due
process
74. Under
the American Convention on Human Rights, when a protected right or freedom has
been infringed, the State is obliged to respond sua
sponte with certain measures of investigation, actions to sanction and
punish the perpetrators, and steps to ensure access to compensation.
At the same time, the victim has a direct right to seek judicial
protection and redress. The act of
enforced disappearance, where an individual is held incommunicado and the
authorities conceal the fact of custody, places the individual concerned outside
of the protection of the law. This
renders the detainee unable to access the right to file a writ of habeas
corpus, the remedy through which judicial protection is normally made
available to address an illegal detention.
75. As the
victim of a disappearance is unable to seek judicial vindication, the right to
seek that recourse necessarily devolves to the victim's family members.
The Commission has established that victims and/or their relatives have a
right to a judicial investigation by a criminal court designed to establish and
sanction responsibility for human rights violations.
This flows from the obligation of the State to "use the means at its
disposal to carry out a serious investigation of violations committed within its
jurisdiction [in order] to identify those responsible.”
Under the Convention:
State parties have an obligation to provide effective judicial remedies
to victims of human rights violations (Art. 25), remedies that must be
substantiated in accordance with the rules of due process of law (Art. 8.1), all
in keeping with the general obligation of such States to guarantee the free and
full exercise of the rights recognized by the Convention to all persons subject
to their jurisdiction (Art. 1).
76. This
obligation is met not through measures of form but of substance. States Parties
are required to take affirmative steps to ensure that the rights under the
Convention are enforced.
The remedies provided for by
the State must therefore be "truly effective in establishing whether there
has been a violation of human rights and in providing redress."
The ability to vindicate a
right through judicial recourse under the Guatemalan system presupposes that a
competent court will be willing and able to draw upon the capacity of the State
to provide the required measures of investigation.
77. Accordingly,
the response of the State to the disappearance of Isabela
and Francisco Velásquez, Ronal Homero Mota, Julio de Jesús Maldonado, José
Felipe Alvarez Andrés, Eleodoro Polanco Arévalo, Adolfo René and Luis Pacheco
del Cid, Nicolás Matoj, Bernal de Matoj, Juan Matoj, Nicolás Matoj, Francisco
Matoj, Cecilia Matoj, María Matoj, Franciso Rivera and family, and Jacinto
Terraza and family must be analyzed in terms
of whether it established that there had been a violation of the victim's rights
and provided corresponding redress. The
writ of habeas corpus is theoretically
designed to compel an urgent official response in the case of an illegal
detention. This simple and prompt
recourse contemplated in Article 25 constitutes one of the pillars, not only of
the system, but of the rule of law in a democratic society, and plays an
integral role in protecting the most fundamental individual rights and freedoms. In
the instant case, however, the writs of habeas
corpus filed on behalf of Mr. Mota, Mr. Maldonado and Mr. Alvarez were not
met with an effective response. The State simply reported that the result of the
writ was “negative,” without supplying substantive information reflecting
that an investigation designed to establish the victims’ whereabouts or fate
was ever carried out. Rather, the
information on record provides credible evidence that, when the judge attempted
to execute the writ, military officials impeded the performance of his duty and
obstructed justice.
78. The
State maintains that the criminal processes which remain pending provide an
effective remedy to certain victims’ families.
Again, the record of the present case contains no substantive information
reflecting a serious or effective effort to investigate the fate of the victims,
or to investigate those responsible for their disappearance.
The record provides no reports of measures of investigation ordered or
taken to advance the criminal processes opened in Cases 10.608 and 10.796.
With respect to the other cases, there is no information on record to
demonstrate any substantive measures of investigation aimed at establishing the
facts of the disappearances or the corresponding criminal responsibility.
79. With
respect to the question of delay, the Commission has no substantive information
before it to explain or justify the fact that the record discloses no final or
other results of investigation, notwithstanding the passage of over eight years
since the disappearances at issue took place.
Notwithstanding
the passage of over eight years since these crimes were committed, the record
reflects that the State of Guatemala has failed to officially account for them,
and has failed to try and punish a single person, or repair any of the
consequences. Those who committed
the crimes have been cloaked in a mantle of impunity, and the victims have been
denied any measure of justice.
80. Because
the State failed to respond to the disappearance of the victims as required,
their families have been denied justice. The
victims’ families have a right to know the truth about what happened to them.
They are also entitled to use that information to vindicate their right
as successors to seek reparation from the State.
The State of Guatemala was required to use all available means “to
carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure ... adequate compensation."
In the instant case it is
clear, over eight years after the victim’s disappearance, that the Guatemalan
State failed to honor its obligation to provide simple, swift and effective
legal recourse to the victims’ families, so that their rights might be
vindicated.
The right to recognition as a
person under the Law and other Rights
81. According
to the above findings, Isabela
Velásquez, Francisco Velásquez, Ronal Homero Mota, Julio de Jesús Maldonado,
José Felipe Alvarez Andrés, and members of the Matoj, Rivera and Terraza
families were forcibly disappeared by State
agents. Eleodoro Polanco Arévalo,
and Adolfo René and Luis Pacheco del Cid were disappeared by such agents or by
persons working in concert with, or with the acquiescence and tolerance of such
agents. These disappearances constitute multiple
and continuing violations of the American Convention on Human Rights.
The objective of those who perpetrate a disappearance is to operate
beyond the margins of the law, to conceal all evidence of their crimes, and to
escape any sanction. For the victim, the consequence of an enforced disappearance
is to be denied the most basic rights deemed to inhere in the very fact of being
human. Consequently, the act of enforced disappearance violates the right of the
individual under Article 3 of the American Convention "to recognition as a
person before the law."
Rights of the child
82. Article
19 of the American Convention provides that, "[e]very 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.”
Two of the cases under study concern the forced disappearance of minors.
Francisco Velásquez, the subject of Case 10.588, was disappeared along
with his mother when he was 13 years old. Case
10.921 involved the disappearance of members of the Matoj family, including
several minor children.
83. Respect
for the human rights of children is a question of primordial importance for
every State. It is for this reason that Article 19 establishes special
measures of protection for children corresponding to their vulnerability as
minors. The events set forth in
this report demonstrate the failure of the State of Guatemala to uphold this
standard of protection established in the Convention in the cases of these
victims.
The obligation of the State to
respect and guarantee individual rights
84. The
violations at issue in the instant case demonstrate that the State of Guatemala
has failed to uphold the undertaking set forth in Article 1(1) of the American
Convention on Human Rights to respect the rights recognized therein and to
ensure to all persons subject to its jurisdiction the free and full exercise of
those rights.
85. The
concept of rights and guarantees "cannot be divorced from the system of
values and principles that inspire it." Within
the inter-American system, the interrelated violations that constitute a
disappearance have been subjected to special condemnation.
The Inter-American Court has emphasized that: "The practice of
disappearances, in addition to directly violating many provisions of the
Convention ... constitutes a radical breach of the treaty in that it shows a
crass abandonment of the values which emanate from the concept of human dignity
and of the most basic principles of the Inter-American system and the
Convention.”
At the time in question,
disappearances constituted a practice of State agents in Guatemala, and that
practice was not challenged or met with an adequate response on the part of the
State or its judiciary.
86. The
first obligation of any State Party to the American Convention is to respect the
rights and freedoms set forth therein. "[U]nder
international law a State is responsible for the acts of its agents undertaken
in their official capacity and for their omissions, even if they are acting
outside the sphere of their authority or in violation of internal law."
Moreover, “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
State.”
Based on the record and its foregoing
analysis, the Commission concludes that the victims in Cases 10.588, 10.608 and
10.921 were disappeared by State agents, and that the victims in Cases 10.796
and 10.856 were disappeared by State agents or by persons acting in concert with
such agents, or with their acquiescence and tolerance.
In both sets of cases, the relevant authorities failed to mount an
effective response.
87. The
second obligation of the State is to guarantee the free and full exercise of the
rights recognized by the Convention. As
the Inter-American Court has established, this
implies the duty of the States Parties 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 of this obligation, the States must prevent, investigate and punish
any violation of the rights recognized by the Convention and, moreover, if
possible attempt to restore the right violated and provide compensation as
warranted for damages resulting from the violation of human rights.
In the case of a forced disappearance, the State has the duty to
determine the fate of the victim, submit those responsible to appropriate
prosecution and punishment, and indemnify the victim's family members.
The foregoing analysis demonstrates that the State of Guatemala has
failed to guarantee these rights of the victims and their families.
VI.
ACTIONS SUBSEQUENT TO REPORT Nº 83/99
88. Pursuant
to the terms of Article 50 of the Convention, the Commission adopted Report Nº
83/99 on May 7, 1999, during its 103rd Regular Session.
That Report set forth the Commission’s analysis (contained in sections
I – V, supra) and finding that the
State of Guatemala bears responsibility in the cases of the forced disappearance
of Isabela and Francisco Velásquez, Ronal Homero Mota, Julio de Jesús
Maldonado, José Felipe Alvarez Andrés, Eleodoro Polanco Arévalo, Adolfo René
and Luis Pacheco del Cid, Nicolás Matoj, Bernal de Matoj, Juan Matoj, Nicolás
Matoj, Francisco Matoj, Cecilia Matoj, María Matoj, Francisco Rivera and
family, and Jacinto Terraza and family. The Commission established State responsibility for
violations of the rights to recognition as a person before the law, to life, to
humane treatment, to personal liberty, and to judicial guarantees and
protection, set forth in Articles 3, 4, 5, 7, 8 and 25 of the American
Convention on Human Rights. The Commission further established that, with
respect to the forced disappearance of minor Francisco Velásquez, and the minor
children of the Matoj family, the State bears responsibility for having failed
to observe the right of children to special measures of protection as
established in Article 19. The
Commission indicated that, in accordance with the foregoing finding, the State
bears responsibility for having failed to uphold its Article 1(1) obligation to
respect and ensure those rights under the Convention.
Consequently, the Commission recommended (1) that the State carry
out a “complete, impartial and effective investigation” in order to
establish the fate of the victims and sanction those responsible in accordance
with Guatemalan law, and (2) that it adopt the measures necessary to ensure that
the victims’ families receive fair and prompt reparation for those violations.
89. The
Report was transmitted to the State of Guatemala on August 9, 1999. Pursuant to
the terms set forth, the State was given two months from the date of receipt to
comply with the recommendations issued and report to the Commission on the
measures taken for that purpose. By
a note of the same date, the Commission informed the petitioners that a report
on the case had been adopted pursuant to the terms of Article 50 and transmitted
to the State.
90. The
State submitted its response to Report 83/99 by note dated October 12, 1999.
91. In
relation to the Commission’s recommendation that it carry out a complete,
impartial and effective investigation designed to clarify the fate of the
victims, as well as to identify and sanction those responsible, the State
reported that it had taken, or was preparing to take certain steps.
With respect to Ronal Homero Mota, Julio de Jesús Maldonado and José
Felipe Alvarez Andrés (Case 10.608), the State reported that process 540-90
remained before the Court of First Criminal Instance, Narcoactivity and Crimes
against the Environment of the Department of Sololá.
With respect to Eleodoro Polanco Arévalo (Case 10.796), it reported that
process 514-91 remained before the Second Court of First Criminal Instance,
Narcoactivity and Crimes against the Environment.
The State indicated that “in the next days” it would be requesting
the assistance of the President of the Supreme Court with respect to moving
those cases forward.
92. In
relation to Isabela and Francisco Velásquez (Case 10.588), Adolfo René and
Luis Pacheco del Cid (10.856), and the Matoj family (Case 10.921), the State
reported that it had no record of any judicial process underway, or of any
denunciation having been filed before its judiciary. The State was therefore
searching for a legal mechanism to initiate the corresponding processes,
investigate, and determine whether the victims were indeed disappeared, in order
to determine the corresponding criminal responsibility. The State indicated that no one had come forward to offer the
authorities information, and requested that the Commission require additional
data from the petitioners in order to assist its investigation. The State noted
that certain characteristics of these five cases made their clarification
difficult, namely the passage of time since the facts, and the situation of
persons who had gone into exile, or changed identity or been internally
displaced, but expressed its interest in carrying out a complete, impartial and
effective investigation to meet the objective set forth in the Commission’s
recommendation.
93. Finally,
the State indicated that, for the reasons set forth in its response, it would
not presently pronounce with respect to the Commission’s recommendation
concerning measures of reparation for the families of those disappeared.
94. Having
reviewed the information provided by the State in response to Report 83/99, the
Commission finds it necessary to offer the following observations. Most
fundamentally, the response
of the State does not demonstrate compliance with the recommendations issued by
the Commission in Report 83/99, aimed at remedying the violations established.
95. In the
first place, the
record with
respect to all five cases continues to reflect that the State has yet to carry
out an investigation meeting the standards of due diligence, either in terms of
establishing the fate of the victims or the corresponding criminal
responsibility. In relation to the
two cases where the State indicates that judicial processes remain pending,
concerning Ronal
Homero Mota, Julio de Jesús Maldonado and José Felipe Alvarez Andrés (Case
10.608) and Eleodoro Polanco Arévalo (Case 10.796), the Commission reiterates that the obligation of the State to
effectively investigate requires measures not of form but of substance.
Neither the record of these
cases nor the response of the State to Report 83/99 demonstrate that any
substantive measures have been taken. The
very limited information before the Commission demonstrates only that these
processes were not effectuated with due diligence, and have, moreover, been
subjected to prolonged undue and unexplained delay. The State did not address the deficiencies the Commission
identified in Report 83/99 concerning this issue in its response.
The Commission has taken due note of the State’s commitment to seek the
assistance of the President of the Supreme Court in impelling these processes
forward, and will continue to monitor developments until these and the other
three cases have been fully clarified.
96. With
respect to the remaining three cases, concerning Isabela
and Francisco Velásquez (Case 10.588), Adolfo René and Luis Pacheco del Cid
(10.856), and the Matoj family and others (Case 10.921), the
State has reported that it finds no record of any denunciation before its
judicial authorities. For the record, the Commission notes that, according to the
information recorded in section II, supra,
the petitioners reported and the State has never disputed that the facts of Case
10.588 were denounced before the Ombudsman for Human Rights of the State, while
the facts of Case 10.856 were denounced before police officials, who initiated
an investigation that failed to produce results.
With respect to Case 10.921, the petitioners indicated that the facts
were denounced to the relevant local authorities.
Once the State was on notice that the individuals concerned were alleged
to have disappeared, it was obliged to undertake the appropriate measures of
investigation. As is well established in the inter-American human rights
system, the duty to investigate:
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.
97. Independently
of the difficulties which the State noted may arise in investigating cases of
this nature, it must be noted that the record before the Commission reflects
virtually no attempt to investigate the basic facts that were denounced before
local authorities, and subsequently before this Commission.
98. The Commission reiterates that, in any
case of disappearance, the State is obliged to establish the fate of the victim,
submit those responsible to appropriate prosecution and punishment, and
compensate the victim's family members. The
Commission found that the victims in the five cases at issue were forcibly
disappeared at the hands of State agents, or by persons acting at the behest or
with the tolerance of such agents. The
lack of investigation, prosecution and punishment of those responsible has
created a situation of impunity in these cases, which directly contravenes the
duty of the State to combat that phenomenon by all the means at its disposal.
The failure of the State to clarify the fate of the victims or to take
steps to locate their remains perpetuates the violation of the right of their
family members to know the truth about what happened to them.
As the Court, as well as the Commission have consistently indicated,
“[t]he duty to investigate facts of this type continues as long as there is
uncertainty about the fate of the person who has disappeared.”
VII.
CONCLUSIONS
99. On the
basis of the foregoing analysis and conclusions, the Commission finds that the
recommendations issued in Report 33/99 have not been complied with, and
therefore reiterates its conclusion that the State of Guatemala is responsible
for violations of the rights to recognition as a person before the law, to life,
to humane treatment, to personal liberty, and to judicial guarantees and
protection, established in Articles 3, 4, 5, 7, 8 and 25 of the American
Convention on Human Rights with respect to the forced disappearance of
Isabela and Francisco Velásquez, Ronal Homero Mota, Julio de Jesús Maldonado,
José Felipe Alvarez Andrés, Eleodoro Polanco Arévalo, Adolfo René and Luis
Pacheco del Cid, Nicolás Matoj, Bernal de Matoj, Juan Matoj, Nicolás Matoj,
Francisco Matoj, Cecilia Matoj, María Matoj, Francisco Rivera and family, and
Jacinto Terraza and family.
In the cases of the forced disappearance of the minor Francisco Velásquez
and the minor children of the Matoj family, the State is also responsible for
failing to observe the right of children to special measures of protection,
established in Article 19. With
respect to the foregoing, the State is accordingly responsible for having failed
to uphold its Article 1(1) obligation to respect and ensure those rights under
the Convention.
VIII. RECOMMENDATIONS
100. On the basis
of the analysis and conclusions set forth in the present report,
THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
To reiterate its recommendations to the State of Guatemala that it:
1. Carry
out a complete, impartial and effective investigation in order to determine the
circumstances of the forced disappearance of these victims and sanction those
responsible in accordance with Guatemalan law.
2. Adopt
the measures necessary so that the family members of the victims identified in
paragraph 96 receive adequate and prompt reparation for the violations here
established.
IX.
PUBLICATION
101. On February
2, 2000, the Commission transmitted Report Nº 139/99, 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.
102. On March 3,
2000, during the 106th Regular Session of the IACHR, at the hearing
held on "the General Situation of Human Rights in Guatemala," the
representatives of the Guatemalan State declared 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 139/99 (CASES 10.588, 10.608, 10.796, 10.856 and 10.921)
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 139/99 on Cases 10.588, 10.608,
10.796, 10.856 and 10.921, issued by the Inter-American Commission on Human
Rights on November 19, 1999.
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 139/99 (Cases 10.588, 10.608, 10.796, 10.856 and 10.921) of November
19, 1999, owing to its failure to guarantee the essential rights recognized in
Articles 3, 4, 5, 7, 8 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 139/99 (Cases 10.588, 10.608, 10.796, 10.856 and 10.921)
of November 19, 1999 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 139/99 (Cases 10.588, 10.608, 10.796, 10.856 and
10.921) of November 19, 1999. 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 Cases 10.588,
10.608, 10.796, 10.856 and 10.921.
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 139/99 (Cases 10.588, 10.608, 10.796, 10.856 and
10.921), of November 19, 1999, 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].
103. 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.
104. The
information received indicates that the Guatemalan State has not yet fully
complied with the recommendations made in Report Nº 139/99 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.
105. 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.
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