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CASE 12.130 MERITS MIGUEL ORLANDO MUÑOZ GUZMÁN MEXICO February 28, 2006
I. SUMMARY
1. On March 1, 1999, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or the “IACHR”) received a petition filed by María Guadalupe Muñoz Guzmán and the Mexican Commission for the Defense and Promotion of Human Rights (jointly “the petitioners”), in which it was alleged that the United Mexican States (hereinafter “the State”) bore international responsibility for the forced disappearance of Miguel Orlando Muñoz Guzmán, as well as for its subsequent failure to investigate and provide compensation for the said acts. The petitioners allege that the facts alleged in the petition violate several rights enshrined in the American Convention on Human Rights (hereinafter the “American Convention”), namely, the right to life (Article 4); right to humane treatment (Article 5); right to personal liberty (Article 7); right to a fair trial (Article 8); and right to judicial protection (Article 25), in accordance with the general obligation provided in Article 1.1 of the aforementioned international instrument.
2. According to the petition, Mr. Miguel Orlando Muñoz Guzmán, a lieutenant in the Mexican army, disappeared on May 8, 1993, at the age of 25. His fellow soldiers in the 26th Battalion of Ciudad Juárez, state of Chihuahua, Mexico, last saw him on that date as he was preparing to go off duty. Lieutenant Muñoz Guzmán’s family say that he was a dedicated career officer, a fact that wrests credibility from the army’s official version of events, which was that he had deserted from the army and traveled to the United States. The petitioners say that, to date, no serious investigation has been carried out in Mexico to determine his whereabouts and punish those responsible for his forced disappearance. They argue that the irregularities surrounding this case have been deliberate and intended to cover up for those responsible. They also mention that the family began to receive anonymous threats, which they attribute to military personnel, from the time that they brought the complaints.
3. The State maintains that a serious investigation has been carried out in Mexico and that it produced no evidence whatsoever that Orlando Muñoz Guzmán might have been the victim of criminal acts committed by members of the army or other agents of the State. In the stage on merits, the State reiterates its position on the alleged facts and holds that the investigation has brought to light evidence that the alleged victim in this case was probably responsible for drug trafficking offences.
4. The IACHR concludes in this report that there is nothing in the record to support the allegation that the Mexican State bears international responsibility for the forced disappearance of Miguel Orlando Muñoz Guzmán. Therefore, it does not find any responsibility of the Mexican State for the violation of the rights to life, physical integrity, or personal liberty to the detriment of Miguel Orlando Muñoz Guzmán; or for the violation of the right to physical integrity of his relatives. The IACHR further determines in this report that the Mexican State is responsible for violation of the rights to a fair trial and judicial protection contained in Articles 8 and 25 of the American Convention, in connection with Article 1.1 of the aforementioned international instrument. In Report 106/05 on the merits, the Commission recommended that the Mexican State adopt the appropriate measures to investigate the facts, punish those responsible, and provide reparation for the consequences of the violations; a one-month deadline starting on October 31, 2005 was established for the State to report on the measures toward compliance, after which a decision would be made on publishing the report. The IACHR analyzed the information sent by the State and found that, despite the good will expressed by Mexican authorities, compliance with the recommendations is still pending. Accordingly, the Commission reiterates the conclusions and recommendations set forth in paragraph 105 below; decides to publish this report and to include it in its Annual Report to the OAS General Assembly.
II. PROCESSING SUBSEQUENT TO THE ADMISSIBILITY REPORT
5. The Inter-American Commission declared the instant case admissible on December 4, 2000,[1] and notified the parties accordingly on December 8 of that year. Based on that communication, the Inter-American Commission placed itself at the disposal of the parties with a view to initiating a friendly settlement proceeding as provided in Article 48(1)(f) of the American Convention. The Mexican State requested an extension on January 16, 2001, in order to present its position in that connection, and it was given 30 days starting on February 2, 2001. On March 5 of that year, the State said that the investigations to ascertain the whereabouts of Lieutenant Muñoz Guzmán were ongoing and, therefore, it did not deem it appropriate to seek a friendly settlement to resolve the matter. The latter communication was brought to the attention of the petitioners in a note of March 13, 2001.
6. On July 23, 2001, the petitioners requested a hearing at the 113th regular session of the IACHR in order to present information on the case. The Inter-American Commission decided to invite the parties to a work meeting during the aforesaid session, and informed them accordingly in a note of August 24, 2001.
7. The petitioners submitted additional information on the case on August 16, 2001, and the Inter-American Commission transmitted it to the State on August 27 of that year. The IACHR received the observations of the State on said information in a communication of September 28, 2001. On October 2, 2001, the parties were informed that the date of the work meeting on Case 12.130 had been changed.
8. The Inter-American Commission transmitted the State’s communication of September 28, 2001, to the petitioners on October 23, 2001. On November 14, 2001, at the work meeting on the case, the petitioners submitted additional information, which was forwarded to the Mexican State on November 28, 2001. For its part, on December 20, 2001, the State sent a communication regarding a joint work program with the petitioners to review the record in the case prepared by the Office of the Prosecutor General, the proceeding for which was set to open on January 14, 2002. On January 3, 2002, the State replied to the request for information made by the Inter-American Commission on November 28, 2001; said communication was brought to the attention of the petitioners on January 7, 2002.
9. The petitioners requested a hearing on merits in the case on January 18, 2002. In its reply of February 21 of that year, the IACHR explained that it would not be possible to accede to said request and asked the petitioners to submit additional observations on merits. On March 20, 2002, the petitioners requested an extension of 45 days to submit their additional observations, to which the IACHR agreed on April 2 of that year.
10. On May 22, 2002, the petitioners submitted their additional observations on merits, which were transmitted to the State on June 21, 2002. On August 27 of the same year, the IACHR received a brief from the State containing its additional observations on merits in the case, which were conveyed to the petitioners on August 30, 2002. On September 16 of that year, the Mexican State presented a volume of annexes that had been mentioned in its observations brief. On September 18 of that year, the IACHR invited the parties to a hearing on the merits of the case in the framework of its 116th regular session.
11. The IACHR wrote to the petitioners on September 30, 2002 and requested them to submit their comments on the communication of the Mexican State on merits. On October 18, 2002, the hearing convened on Case 12.130 was held at the headquarters of the Inter-American Commission. On January 8, 2003, the petitioners sent a communication in which they reiterated their arguments and asked the Commission to adopt the report provided for in Article 50 of the American Convention.
12. On March 14, 2003, the Mexican State requested the Inter-American Commission to send it an audio recording of the hearing on the instant case that was held on October 18, 2002. On March 25, 2003, the IACHR sent the Mexican State copies of the documents and photographs received from the petitioners that were referred to in the aforementioned hearing. On April 23, 2003, the State sent a communication in which it requested an extension of the deadline to submit its observations; the IACHR granted it an extension of 15 days counted from April 29, 2003.
13. On May 16, 2003, the State submitted additional observations and sought a hearing to present further information on the case; this communication was brought to the attention of the petitioners on June 20, 2003. The State forwarded annexes to the aforementioned note on May 27, 2003, which were transmitted to the petitioners on June 30 of that year.
14. The Inter-American Commission held another work meeting on the instant case on October 20, 2003, in the framework of its 118th regular session. The decision reached on that occasion, entailing the creation of a working group to review jointly the record in the investigation of the facts connected with this case in Mexico, was communicated to the parties on October 27 of that year.
15. The petitioners wrote to the Inter-American Commission on January 14, 2004, to request another work meeting to submit the findings of the review of the investigation of the facts connected with the instant case in Mexico. On February 2, 2004, the parties were invited to the above-requested work meeting. Said meeting was held at the headquarters of the IACHR on March 3, 2004, in the framework of its 119th regular session.
16. On May 26, 2004, the petitioners reiterated the request made at the work meeting with respect to the adoption of a report on merits in this case. On November 10 of that year, the petitioners submitted another brief in which they expressed the same request.
17. The State sent a communication that contained additional information on the steps taken in the investigation of this case in Mexico, and reiterated its willingness to continue to provide information on the outcome of said investigation. The Inter-American Commission transferred the pertinent portions of this last communication to the petitioners on December 27, 2004, with one month to submit their observations. On January 27, 2005, the petitioners forwarded a communication in which they reiterated their request for the IACHR to move forward with the procedure provided in Articles 39, 41, 42 and 43 of its Rules of Procedure.
III. POSITIONS OF THE PARTIES18. In Report on Admissibility 106/00, the IACHR examined the positions of the parties with respect to that stage of the proceeding and concluded that, if proven,[2] the alleged acts would constitute violations of the rights guaranteed in Articles 4, 5, 7, 8, and 25 of the American Convention. Following is a short summary of either party’s position on merits in the case, which are examined further in the section on analysis. A. The petitioners19. The petitioners consider that the facts in this case constitute violations of the right to personal liberty, in connection with lack of judicial protection in the framework of the writ of amparo sought to determine the whereabouts of Miguel Orlando Muñoz Guzmán. They further argue that the Mexican State is responsible for violation of the right to life and humane treatment of Lieutenant Muñoz Guzmán; and, to the detriment of his family, for violation of the rights to humane treatment, a fair trial, judicial protection, and the truth. The petitioners say that in this case the State violated several provisions contained in the Inter-American Convention on Forced Disappearance of Persons, as well as the general obligation, enshrined in Article 1.1 of the American Convention, to respect and ensure all rights. They request the Inter-American Commission to declare that the Mexican State is responsible for the above-mentioned violations; and to recommend that the State ascertain the whereabouts of Miguel Orlando Muñoz Guzmán, investigate and punish the persons responsible, and provide fair compensation to the family of the disappeared man.
B. The State
20. The State holds that the evidence put forward by the petitioners is insufficient to determine that Muñoz Guzmán was a victim of forced disappearance since there is no circumstantial evidence, indicia or reason to presume that the Lieutenant was deprived of his liberty by military personnel or any other agents of the state. The State argues that the investigations show that he left the military facility because he was off duty and dressed in civilian clothing, for which reason he was charged with desertion, an offense punished by the Code of Military Justice. In the conclusion of the section on the facts, the State reiterates that the investigation of the Office of the Public Prosecutor for Military Justice (hereinafter, “PGJM”) has been carried out in accordance with the law and that “it was also determined that MIGUEL ORLANDO MUÑOZ GUZMÁN probably bears responsibility for the crime of BRIBERY AND CRIMES AGAINST HEALTH as attested by the records attached” (emphasis and capitals in the original).[3] To summarize, they argue that it is not possible to attribute international responsibility to the State for the forced disappearance of Miguel Orlando Muñoz Guzmán, and that there is no violation of the rights to a fair trial or judicial protection because the PGJM and other justice seeking organs have acted with the independence and impartiality provided for in the American Convention.
IV. ANALYSIS
21. The Inter-American Commission shall proceed to examine the arguments of the parties specifically concerned with the facts and the rights allegedly violated in this case, which was declared admissible in Report 106/00.
A. Burden of proof and assessment of the evidence
22. In the opinion of the petitioners, the jurisprudence of the IACHR and the Inter-American Court on inversion of the burden of proof is applicable in this case. In that connection they say that:
In the instant case there are testimonies from different witnesses, all of which are consistent and coincide, that Miguel Orlando Muñoz was seen for the last time on May 8, 1993, on the facilities of the 26th Infantry Battalion in Ciudad Juárez, state of Chihuahua. The record also contains a number of statements that say that Miguel Orlando Muñoz had encountered various difficulties with his superiors, apparently in connection with information he had concerning drug trafficking operations in the area. Furthermore, as we have mentioned previously, Miguel Orlando Muñoz had been threatened and began to feel afraid and experience distrust in the Battalion. Finally, his disappearance was followed by a series of forgeries, misunderstandings, and theft of key evidence with which to ascertain his whereabouts. In all of these goings-on the persons allegedly responsible have been military personnel of the 26th Infantry Battalion.[4]
23. Furthermore, the petitioners argue that another of the requisites that allow shifting the burden of proof is met by the fact that the victim was last seen in the custody of state agents. They add that in cases of this type the Inter-American Court attributes high probative value to testimonial evidence, and the duty of the state is made more pressing still when the person disappears while in its custody. They conclude, based on the foregoing, that the Mexican State has the burden of proving in this case that Lieutenant Muñoz Guzmán was not a victim of forced disappearance.
24. For its part, the State holds that inversion of the burden of proof is not appropriate in the instant case, and that the petitioners have failed to demonstrate any of the facts they allege.
25. In such matters, the jurisprudence of the Inter-American Court of Human Rights holds to the basic principles according to which the burden of proving a particular fact rests with the party who makes that allegation.[5] However, in certain instances, the burden of proof may be inverted and pass to the party who denies the allegation if the latter is in a better position to prove it. Under the inter-American system, in proceedings to determine human rights violations the State cannot rely on the defense that the complainant has failed to present evidence when it cannot be obtained without the State's cooperation.[6] For example, the family of a victim of forced disappearance cannot present evidence on such a fact if the persons responsible are agents of the state who elude justice by eliminating any evidence of the whereabouts of said victim.[7]
26. Furthermore, international jurisprudence has held the courts have the power freely to evaluate evidence, but “it has always avoided a rigid rule regarding the amount of proof necessary to support the judgment.”[8] On the contrary, the power to weigh the evidence freely has been recognized. The Inter-American Court has explained that “[t]he standards of proof are less formal in an international legal proceeding that in a domestic one” and that said systems “recognize different burdens of proof, depending upon the nature, character and seriousness of the case.”[9]
27. The practice of international and domestic courts shows that direct evidence is not the only type of evidence that may be considered in reaching a decision. The Inter-American Court has determined that “[c]ircumstantial evidence, indicia, and presumptions may be considered, so long as they lead to conclusions consistent with the facts,” and that “[c]ircumstantial or presumptive evidence is especially important in allegations of disappearances, because this type of repression is characterized by an attempt to suppress all information about the kidnapping or the whereabouts and fate of the victim.”[10]
28. The IACHR considers that in the case of Miguel Orlando Muñoz Guzmán the Mexican State has the clear obligation to provide evidence to determine the facts, since that person was a member of the armed forces and was last seen at a military barracks. This duty concerns not only the procedural aspect of evidence, but also constitutes a substantive obligation whose breach may give rise to international responsibility under the terms of Article 1.1 of the American Convention as analyzed herein below.
B. Facts
29. Based on the foregoing criteria, the Inter-American Commission will examine the arguments of the parties on the facts and make the appropriate determinations. To that end it will take the facts that the State does not dispute or expressly accept and, if appropriate in the circumstances, apply the rule on presumptive evidence to matters on which there is conflict among the parties.
1. Background
30. Lieutenant Miguel Orlando Muñoz Guzmán was serving in the military with the 26th Infantry Battalion in Chihuahua. On May 8, 1993, when he was seen for the last time, he had been with that unit for six months and it was a month and a half since he had returned from leave. The evidence supplied and not disputed by the State in the instant case also mentions that Lieutenant Muñoz Guzmán was well regarded by his superiors and that he had submitted a series of documents for his application to the Escuela Superior de Guerra de Mexico [War College of Mexico]. The statements made by his fellow soldiers reveal that Miguel Orlando Muñoz Guzmán was particularly excited about those approaching studies and what they would mean for his career. The Lieutenant’s family was in regular communication with him, and he had also told them about his eagerness to study at the Escuela Superior de Guerra. Lieutenant Muñoz Guzmán had a telephone conversation with his family on May 8, 1993, prior to his disappearance. Indeed it was the interruption of the regular family communication after that date that led them to the realization that he was missing and to report his disappearance to the authorities.
31. At the 26th Infantry Battalion, Lieutenant Muñoz Guzmán was assigned command of a Military Tactical detail. A few months before his disappearance, Lieutenant Muñoz Guzmán took part in an operation that led to the capture of a vehicle that belonged to drug traffickers in the area of Nuevo Casas Grandes, state of Chihuahua. The record before the IACHR contains a document signed by Miguel Orlando Muñoz Guzmán dated October 17, 1992, which records the delivery of said vehicle to the Commander of the 5th Military Zone, together with an itemized list of its contents (one gram of cocaine, 150 grams of marihuana, an AK-47 firearm, and a .38 caliber pistol). The Inter-American Commission takes said document to be truthful, inasmuch as its validity was not disputed by the State.
32. Furthermore, the record in the case reveals that members of the same battalion were involved in unlawful activities in connection with drug traffickers in the area. The petitioners mention in particular, Captain José de Jesús Morales García as one of the military officials with alleged links to drug traffickers in the area of Nuevo Casas Grandes, and that he purportedly had had “serious discrepancies” with Muñoz Guzmán for that reason.[11] The Mexican State expressly recognizes that Captain José de Jesús Morales García had dealings with Mr. Pedro Damiani, a suspected drug trafficker in the 26th Battalion’s zone, for which reason he was tried in a military court for “crimes against health” (drug trafficking) in criminal proceeding 842/99. However, the State says that it was not proven that Captain Morales García was involved in the disappearance of Muñoz Guzmán.
33. The petitioners say that in his latter communications with his family, Miguel Orlando Muñoz Guzmán supposedly told them of the fear he felt in the armed forces, and they cite a phrase that he apparently used several times: “el enemigo del verde es el mismo verde”[lit: “the enemy of the green man is the green man”]. They also mention that he would remove his vehicle license plates when he drove around Nuevo Casas Grandes, for fear that they could use the number to locate his family; however, he allegedly did not say from whom he was protecting himself.
34. The State argues that the threat that General Luis Montiel López allegedly proffered against Lieutenant Muñoz Guzmán (“that if he started meddling around he would f**k him up”) was “simply a vague comment”. The State further mentions that the participation of that general in the “Brigada Blanca” [“White Brigade”] is a “baseless and worthless” affirmation since the petitioners furnish no evidence whatever to show that criminal organization actually existed. With respect to the fact that Muñoz Guzmán allegedly said that “the enemy of the green man is the green man” and to the fear he felt in the Army, the State says that it “neither confirms nor denies it, since these are not facts that the Mexican authorities can know to be true”. This last expression was also used by the State with regard to the threats allegedly received by the Muñoz Guzmán family after they filed a complaint. The State adds that in addition to giving evidence that threatening telephone calls were made, Mr. Muñoz García “has the temerity to suggest that military personnel made the calls”.
35. The Mexican State considers that the fact that Mr. Miguel Orlando Muñoz Guzmán was privy to compromising information, and that he was supposedly a witness to crimes and acts of corruption that implicated members of the military amount to “mere assumptions or conjecture on the part of the petitioners”. It mentions in this connection that the statements of Infantry Sergeant, 2nd class Zózimo Gutiérrez Borneos were merely comments for which there is no evidence whatever; and that the sergeant himself clarified that Lieutenant Muñoz Guzmán had no enemies in the barracks. Specifically with respect to the enmity between the alleged victim and Captain Morales García, the State says that there is no evidence to attest to that circumstance or to the facts on which it was supposedly based, such as the alleged “reprimands and constant punishments”.
36. Based on the aforementioned rules for weighing evidence, the IACHR finds it reasonable to assume that, by virtue of his duties, Lieutenant Muñoz Guzmán could have been privy to information that was compromising for certain members of the Mexican Army. The Inter-American Commission also considers, based on the foregoing, that Miguel Orlando Muñoz Guzmán could have been threatened or in danger prior to his disappearance.
2. The disappearance of Miguel Orlando Muñoz Guzmán
37. The petitioners say that no evidence was put forward to the effect that Lieutenant Muñoz Guzmán actually left the 26th Battalion on May 8, 1993, after he was last seen, between 7:30 p.m. and 8:30 p.m. Furthermore, they consider that based on the evidence that they have provided “it is reasonable to suppose that Miguel Orlando Muñoz was arbitrarily detained without an order from an authority to do so”.[12]
38. The petitioners also say that “there are strong indications that Miguel Orlando Muñoz was arbitrarily detained by personnel of the 26th Infantry Battalion of the Mexican Army and later held in an unknown location,” and that “this fact led to other violations to the detriment of Miguel Orlando Muñoz, such as his rights to humane treatment and life.”[13]
39. The State reiterates several time in its brief that Miguel Orlando Muñoz Guzmán was seen leaving the Battalion. However, the IACHR notes that that fact is not consistent with statements made by military personnel in the preliminary enquiry, or other documents. Indeed, the State submits as an annex to its observations on merits the statement of Captain Andrés Notario Velásquez, who says that he did not know if Lieutenant Muñoz Guzmán left the barracks.[14] Furthermore, Lieutenant Filiberto Ortiz Ibáñez declared that he saw Lieutenant Muñoz Guzmán for the last time on May 8, 1993, in the room that he shared with him at 26th Battalion.[15] The facts described by the State are transcribed as follows:
Lieutenant (Infantry) MIGUEL ORLANDO MUÑOZ GUZMÁN was serving with the 26th Infantry Battalion based in Ciudad Juárez, state of Chihuahua and was seen leaving the facility of said unit on May 8, 1993. He was seen for the last time by fellow soldiers, such as 2nd Captain (Infantry) ANDRÉS NOTARIO VELÁSQUEZ, who says in his declaration that the last time he saw him was on May 8; as did 2nd Captain (Administration) LUIS ALBERTO VILLAR JIMÉNEZ, who saw him speaking by telephone. He was also seen leaving the facility by the now First Captain (Infantry) EDWIN TONATIUH RUIZ DELGADO and First Sergeant (Infantry) JOSÉ ALFREDO FUENTES BARRERA; in the evidence annexed to the enquiry, Lieutenant (Infantry) FILIBERTO ORTIZ IBÁÑEZ (room mate of Lieutenant ORLANDO), declared that at approximately 17:30 he left the room, saying to him that that he had to go out to have dinner and use the telephone, ‘but that he would go and ask Lieutenant Edwin Tonatiuh for his car, as he was the watch officer. Shortly afterwards he returned and told him that he had been unable to get the vehicle, so he bathed, changed into civilian clothing, donned his pistol, told him he would see if he could catch the rutera (meaning the truck that goes to Battalion), and left. He did not return that night. The next day was the first day he was AWOL, and he remained AWOL until he deserted on May 11, 1993; The foregoing was corroborated by the now First Captain (Infantry) EDWIN TONATIUH RUIZ DELGADO, who said in his statement that on May 8, 1993, he was officer of the watch and at 17:00 Lieutenant ORLANDO went to the guardhouse in sports clothing, and told them that he intended to go to El Paso, Texas with a girl he had recently met, without providing further details about that person. Then he asked to borrow his car, but the former told him that it was broken, so said officer left and went into the barracks. Shortly afterwards he came out walking alone and dressed in civilian clothing; he did not notice if he was armed, but he was headed for the battalion gate.
It emerges from the investigation that Lieutenant ORLANDO left, headed for the unit’s gate, with the intention of visiting a lady in El Paso, Texas, as he had mentioned to Lieutenant EDWIN, and was absent on the following days until he was reported for desertion, a crime recognized and punished by Articles 255 (II) and 256 of the Code of Military Justice. For that reason the military tribunal issued a warrant for his arrest.
In his statement to the office of the attorney general, the father of ORLANDO said, inter alia, that he knew that his son ORLANDO, tried go to the United States when he was off duty, taking advantage of its proximity to buy things. Based on the foregoing, it is shown that Lieutenant MIGUEL ORLANDO was seen leaving the barracks, as attested by the appropriate documents attached hereto. [16] (emphasis and capitals in the original)
Based on the aforementioned testimonial evidence in Preliminary Enquiry SC/002/2001/IX-E, the inference of the petitioners is disproved because it clearly emerges from that evidence that MIGUEL ORLANDO MUÑOZ, WAS INDEED seen leaving the base dressed as a civilian, wearing jeans on the evening of May 8, 1993, and was not seen to return, for which reason he was presumed to have deserted; a documented fact that disproves the inference of the petitioners.
Accordingly, since it is not proven that agents of the Mexican State deprived MIGUEL ORLANDO MUÑOZ of his liberty, with either the support or toleration of the state, as the petitioners allege, it is to be deduced that the Government of Mexico did not violate the right to personal liberty of MIGUEL ORLANDO MUÑOZ.[17] (sic) (emphasis and capitals in the original)
40. The petitioners have requested the Inter-American Commission to shift the burden of proof back on to the Mexican State; that is, to require it to demonstrate that Lieutenant Miguel Orlando Muñoz Guzmán was not a victim of forced disappearance. The jurisprudence of the inter-American system on distribution of the burden of proof has two parts: the first requires the petitioner who alleges the disappearance of a person to demonstrate that the State concerned has engaged in such practices, or tolerated them.[18] The second part requires the petitioner to demonstrate a link between the alleged disappearance in a particular case and the aforementioned state practice.[19] The Inter-American Court found in this connection that “if it has been proved that the State promotes or tolerates the practice of forced disappearance of persons, and the case of a specific person can be linked to this practice, either by circumstantial or indirect evidence, or both, or by pertinent logical inference, then this specific disappearance may be considered to have been proven”.[20]
41. In the instant case, the petitioners have not managed to meet the first of these requirements because they have not shown that the Mexican State engaged in or tolerated the practice of forced disappearance of persons at the time and place that the facts alleged in the petition are said to have occurred. Accordingly, it would not be possible for them either to meet the second requirement imposed by the above-cited jurisprudence. Therefore, the conditions are lacking that would permit the burden of proof to be inverted in this case and, therefore, presume forced disappearance until the State has demonstrated the whereabouts of Miguel Orlando Muñoz Guzmán.
42. The Inter-American Commission notes that there is nothing in the record to suggest that Lieutenant Miguel Orlando Muñoz Guzmán was deprived of his liberty by military personnel inside the 26th Infantry Battalion. The record also contains no information from which to conclude that he left said facility and was later apprehended by other persons, whether military or civilian. Indeed, the evidence shows that he was seen for the last time inside the Battalion, dressed as a civilian, preparing to go off duty.
43. Based on the foregoing, the IACHR considers that it is not possible to determine that Lieutenant Muñoz Guzmán was a victim of forced disappearance in the accepted meaning of the term in international law on human rights.[21] The circumstances of the case also fail to conform to the jurisprudence of the inter-American system in that area.
44. Notwithstanding the foregoing, the IACHR notes that it remains the duty of the State to investigate the whereabouts of Lieutenant Muñoz Guzmán. Although analysis in the light of the legal concept of forced disappearance is not possible for the above-mentioned reasons, it is a demonstrated fact that Miguel Orlando Muñoz Guzmán was seen for the last time on the premises of the 26th Infantry Battalion in Ciudad Juárez and, to date, it is not known what became of him.
3. The loss of the briefcase belonging to Lieutenant Muñoz Guzmán
45. The Mexican authorities found that officers of the 26th Battalion were involved in falsification of documents to make it appear that no briefcase belonging to Lieutenant Muñoz Guzmán had ever been seen on said military facility. Criminal proceedings were instituted against Captain Víctor Gallegos Bernardino, Lieutenant Filiberto Ortiz Ibáñez, and Captain José de Jesús Morales García, and the Fourth Military Court issued a warrant for their arrest because it was shown that the accused military personnel were probably responsible for the falsification of documents in general.
46. The petitioners say that the briefcase in question was maroon-colored, and that its owner kept items of value in it, along with his private journal in which he noted important events in the Armed Forces. In May 1993, they presented a request to the Garrison Commander asking for the briefcase to be handed over to them, but it was denied. In this connection, the petitioners mention that the Mexican State recognized during the processing of the case that Lieutenant Muñoz Guzmán did in fact have a briefcase, but that it was lost. Furthermore, the petitioners say that it was determined that First Captain Víctor Gallegos Bernardino and Lieutenant Filiberto Ortiz Ibáñez drew up a “certificate of non-existence” for the briefcase despite the knowledge that they were setting down falsehoods, and that the arrest warrant was issued for having engaged in such conduct. However, the petitioners say that “to date, they have not been punished in accordance with the law, nor have the appropriate complaints been extended so that the aforesaid persons might provide information on the persons responsible for the forced disappearance of Miguel Orlando Muñoz and on the reasons for that disappearance”.[22]
47. The petitioners consider these facts to be very serious because they show that there are personnel in the Armed Forces directly involved in the forced disappearance of Lieutenant Muñoz Guzmán. They say in their observations on merits that they are unaware if there has been any progress in the proceedings initiated as a result of the loss of the alleged victim’s briefcase and consider that this was not an accident, but the result of deliberate intent to eliminate all traces of him. Lastly, they draw attention to the fact that the persons involved in the disappearance of the briefcase are members of the military, all of which, in the opinion of the petitioners leads to the conclusion that Miguel Orlando Muñoz Guzmán was a victim of forced disappearance at the hands of military personnel.
48. The petitioners say:
We never cease to wonder at the nature of the information that Miguel Orlando Muñoz might have had in his possession, that it should have led him to become a victim of forced disappearance. Certainly, the documents contained in the briefcase that was so conveniently “eliminated” could provide us reasons or clues as to the fate of Miguel Orlando Muñoz.
However, the petitioners consider that, based on the information contained in this section, there are strong and serious indicia that connect members of the Mexican army to the disappearance of Miguel Orlando Muñoz. It would appear that his assailants thought it easier to cause the disappearance of someone who was becoming a threat to the interests of senior military commanders, than to risk public disclosure of the information to which Miguel Orlando Muñoz was privy. The same had to happen to any incriminating evidence.
Based on the foregoing it is fair to assume that Miguel Orlando was the victim of forced disappearance.[23]
49. As to the briefcase belonging to Miguel Orlando Muñoz Guzmán, in addition to the aforementioned recognized facts, the State says that it has not been proven to contain compromising documentation for members of the military; nor, in the opinion of the State, was it shown that it contained a journal or any of the entries in it. As for the lack of information on the proceedings against the members of the military accused of committing irregularities in connection with this case, the State says that “the petitioners unquestionably act heedlessly because it is a recognized fact of law that every petition demands an answer; however, they have made no petition with respect to the procedural status of the above-mentioned matters.”[24]
50. The State also says:
There is no conclusive evidence that attests to the involvement of military personnel in the disappearance of said Lieutenant, despite having been the subject of a preliminary enquiry (No. SC/002/2001/IX-E). It should be mentioned that while it is true that the alleged disappeared person had military status at the time of the events, it is equally true that there is no evidence that links the Ministry of National Defense with such events, and it is wrong to seek to establish a link between the armed forces and the events when none exists.[25]
51. The Mexican State holds that the petitioners have falsely alleged that military personnel of the 26th Battalion were involved in the “macabre task of concealment of evidence” of the disappearance of Miguel Orlando Muñoz Guzmán. To support the foregoing, the State says that the Office of the Public Prosecutor for Military Justice (PGJM), demonstrated in Preliminary Enquiry SC/002/2001/IX-E that Miguel Orlando Muñoz Guzmán left the facilities of the aforementioned military unit, but that even so “it has continued to investigate the disappearance with absolute transparency and has assisted the investigations of the authorities of the federal and general jurisdiction by sending them certified copies of the proceedings.”[26]
52. The context described by the petitioners and not refuted by the State is consistent with other evidence analyzed. The Inter-American Commission evaluates such evidence in the light of the jurisprudence of the inter-American system and concludes that the removal and concealment of the briefcase belonging to Lieutenant Muñoz Guzmán are connected with his disappearance and, therefore, the Mexican State has the obligation to conduct an effective investigation of this fact and punish all those responsible.
4. The possible forgery of the petition to return documents
53. The PGJM instituted criminal proceedings against Colonel Jorge Carrasco Reyes for certification of a plain copy –without having sight of the original-- of an alleged petition from Lieutenant Miguel Orlando Muñoz Guzmán, in which he supposedly requested the return of documents presented to the Office of the Commander of the 26th Battalion with his application to the Escuela Superior de Guerra. The original, which was purportedly delivered to the military authorities of said Battalion could not be found, for which reason the experts of the PGJM were unable to determine if the signature of Muñoz Guzmán was false.
54. The petitioners say in this connection:
In several communications to the illustrious Commission, the petitioners have mentioned that the document in which Miguel Orlando Muñoz is alleged to have requested the return to him of documents submitted to the Escuela Superior de Guerra for the appropriate processing, was also false. In this regard, the petitioners do not know if the aforementioned legal actions have to do with the forgery of the document that contained an alleged request from Miguel Orlando, even though the Public Prosecutor for Military Justice, General Gilberto López Portillo Robles Gil, informed us on June 18, 2001, that the persons mentioned in the foregoing section were responsible for the aforementioned offense; however, it was not possible to proceed in that respect because the time limit for criminal action had expired.[27]
55. In their observations on merits, the petitioners cite the replies of the Mexican State in which the signature on the aforementioned document is determined to be false based on the opinion of a graphology expert, and which clarify that the original official letter was not in the file at the Bureau of Archives and History. The petitioners argue that the foregoing reveals serious flaws in the investigation and punishment of the persons responsible inside the Army, as well as a lack of independence and impartiality, in contravention of the rules of due process set down in Article 8 of the American Convention, and that it is “a clear indication that the fabrication of evidence that occurred in the Army was intended to dissociate it from the forced disappearance of Miguel Orlando Muñoz, and give the appearance of desertion.”[28]
56. The State recognizes that criminal proceedings were instituted against Colonel Jorge Carrasco Reyes for having certified a plain copy –without having sight of the original-- of an alleged petition from Lieutenant Miguel Orlando Muñoz Guzmán, in which he supposedly requested the return of documents presented to the Office of the Commander of the 26th Battalion to apply to the Escuela Superior de Guerra. It also confirms that the original could not be found and explains that for that reason the experts of the PGJM were unable to determine if the signature of Muñoz Guzmán was false. The State holds that the prosecution of Colonel Carrasco does not demonstrate his responsibility in the forging of the petition itself.
57. Once again the IACHR notes the denial of the State but no effective investigation of the facts and, consequently, the absence of evidence to support its position. The IACHR concludes that the irregular certification and misplacement of the alleged original document are not isolated events, but part of a pattern of irregularities observed in this case directly attributable to military personnel of the 26th Infantry Battalion.
58. In sum, the Inter-American Commission concludes that Lieutenant Miguel Orlando Muñoz Guzmán has been missing since the night of May 8, 1993, when he was seen by military personnel inside the 26th Infantry Battalion in Ciudad Juárez, state of Chihuahua. The investigations to date have proved manifestly ineffective, and even in the context of military justice it has been determined that offenses have been committed by members of the armed forces in connection with these events. While it is not possible to classify the disappearance of Miguel Orlando Muñoz Guzmán as forced disappearance in keeping with the definition of this concept adopted under international law on human rights, the Mexican State still has the duty to initiate and complete an effective investigation consistent with due process guarantees, in order to demonstrate what happened and punish all those responsible for those acts.
B. Law
59. Following, the Inter-American Commission analyzes the rights allegedly violated in the case of Lieutenant Muñoz Guzmán based on the facts established by the Commission and accepted or not refuted by the Mexican State.
1. Right to a fair trial and judicial protection, and the obligation to respect and ensure human rights (Articles 8, 25 and 1.1 of the American Convention)
60. The American Convention recognizes the obligation to investigate and punish persons responsible for violations of human rights, as well as the duty to provide compensation to victims of such violations or their families. The relevant provisions of the aforesaid international instrument are transcribed below:
61. The Inter-American Court of Human
Rights has found that the obligation provided in the above-cited Article
1.1 imposes on states parties to the American Convention the duty to
"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."[29]
The aforesaid Court has also said that, “[I]t is clear from Article 1.1
that the State is obliged to investigate and punish any violation of the
rights embodied in the Convention in order to guarantee such rights.”[30] 62. The Inter-American Court has developed an ample body of jurisprudence concerning the obligation of the state to investigate and punish violations of human rights. The Court has found that said obligation is not met merely with the formal institution of proceedings in which it is up to the petitioners to supply information to sustain momentum in the proceedings, but should be discharged by the State in a serious manner as a matter of duty.[31]
63. In its decision on admissibility in the instant case, the Inter-American Commission determined the following:
The Commission considers that the family of Mr. Muñoz Guzmán had access to the legal remedies that were available under the domestic jurisdiction in Mexico and that they used them in a timely and proper manner. Thus far, however, those remedies had not operated with the effectiveness required to investigate a complaint of forced disappearance, which constitutes a serious violation of human rights. Indeed, more than seven years have passed since the first complaint was made to the authorities in Mexico without, up to the date of the adoption of this report, any definitive determination of how the events occurred. These questions will be examined during the appropriate stage of the proceeding, together with the other submissions concerning rights to a fair trial and to judicial protection.
The Inter-American Commission concludes that for a number of reasons it has not been possible to exhaust the domestic legal remedies available in Mexico, despite the fact that more than seven years have elapsed since the acts took place and were denounced to the authorities responsible for investigating them. Consequently, the IACHR applies to the present case the exception provided for in the second part of Article 46.2.b of the American Convention. The causes and effects that prevented the exhaustion of the domestic remedies will be examined in the report to be adopted by the IACHR on the substance of the complaint, in order to determine whether violations of the American Convention have taken place.[32]
64. Based on the foregoing, the IACHR will analyze the proceedings and investigations carried out in the domestic jurisdiction of Mexico in order to determine their compatibility with the above-described obligations, and with the jurisprudential interpretation of the organs of the inter-American system of human rights. While it is a single and indivisible obligation, the Commission considers it appropriate to analyze the proceedings initiated in the general jurisdiction separate from those of the military courts based on the unique characteristics of each.
a. Investigations and proceedings in the general jurisdiction
65. The first intervention in the general jursidiction in this case was the petition lodged by the family of Miguel Orlando Muñoz Guzmán, which filed for writ of amparo to determine his whereabouts. On May 25, 1993, the brother of Lieutenant Muñoz Guzmán reported his disappearance to the Office of the Prosecutor General of the State of Chihuahua (hereinafter “PGJ”). The PGJ considered that there was evidence to suggest that the facts alleged could involve a criminal organization engaged in drug trafficking, for which reason it referred that investigation to the Special Unit on Organized Crime (UEDO) of the Office of the Prosecutor General of the Republic (hereinafter “PGR”), which has been in charge of the investigation since June 22, 2001.
The Writ of Amparo
66. As to the writ of amparo, the petitioners argue that the Mexican State is responsible for violation of Articles 7.6 and 25 for failure to ensure the effectiveness of that remedy. In the section on the facts, the IACHR has determined that there is no evidence to find that Lieutenant Muñoz Guzmán had his liberty deprived by agents of the Mexican State. It is necessary, however, to examine the arguments of the parties with respect to the suitability of amparo in the light of the right to judicial protection enshrined in the American Convention. In this regard, the petitioners say:
The petitioners recognize that under Mexican law the amparo remedy is the formal proceeding to protect the human rights of persons who are victims of violation of such rights, in particular those recognized in Article 22 of the Mexican Constitution. However, where forced disappearances in Mexico are concerned, amparo clearly cannot be considered a suitable remedy to protect victims of such deeds because, though formally recognized as a mechanism to protect the right to life or humane treatment, it does not meet the standards developed by the inter-American system
(...)
The fact that the law on amparo in Mexico provides that an essential requirement for an amparo ruling favor of the victim is to state where the victim is being detained, renders it groundless and contrary to the parameters set down both by the illustrious Commission and by the Court.
In the instant case, the Muñoz family filed a petition for a writ of amparo on June 7, 1993; the application was taken up by the First District Court for Criminal Matters in and for the State of Jalisco, as case 450-93.
In this connection, the authorities named responsible, in particular the military authorities, denied the acts alleged in the petition and, on that basis and owing to the failure to state the place of detention and the authority ordering the detention, the First Court dismissed the case, which ruling struck the petitioners as illogical where forced disappearance of persons is concerned.
The requirement mentioned in the foregoing paragraph leads us to the conclusion that the mandatory procedure of seeking a writ of amparo to establish the whereabouts of a missing person is not suitable for finding a person who has been illegally detained by agents of the State and concealed in clandestine holding places or official buildings. To make the admissibility of a writ of amparo and the continuation of proceedings contingent on the identification by the victim or their relatives of the whereabouts of the detained person, defeats the very object of the remedy and cancels its effectiveness.
(...)
The concept of disappearance entails the inability to say where the missing person is located, since they are the victim of covert detention. Furthermore, the injured party must ratify the petition for amparo within three days otherwise it is taken as not lodged.
The petitioners consider that the Court should have investigated to make sure that he really was not at the aforementioned places, since the failure to carry out a prompt, serious investigation in such cases, which includes the presence of court officials to verify the veracity or otherwise of the detention, invalidates the remedy. In the instant case, the Mexican Army was allegedly responsible for the disappearance; however, that was not corroborated by the court.
Certainly, the remedy of amparo is the formal mechanism to ensure that the detained person is brought before a judge; however, in the instant case it was clearly impossible to place Miguel Orlando Muñoz, a victim of forced disappearance, at the immediate disposal of the appropriate judicial authority.
In conclusion, inasmuch as the Amparo Law contains requirements that are impossible to fulfill, amparo is an ineffective remedy and failed to accomplish its principal objective, which was to protect him from the forced disappearance of which he was a victim. Accordingly, the Mexican State has violated the provision contained in Articles 7.6 and 25 of the American Convention to the detriment of the victim.[33]
67. With respect to the effectiveness of the remedy sought in this case to determine the whereabouts of Miguel Orlando Muñoz Guzmán, the State holds that the amparo proceeding “is the mechanism to ensure constitutionality, and is admissible, inter alia, against acts of authorities that are deemed to violate personal guarantees provided in the Constitution”. It holds that the nature and suitability of the amparo proceeding “do satisfy the standards that the petitioners say were violated.”[34]
68. The State further explains that the amparo proceeding brought by the petitioners was dismissed by the court based on Article 74 (IV) of the Amparo Law because “it emerged from the record that the alleged violation did not exist.” The State argues that the problem is not that the amparo proceeding is ineffective for protection of constitutional guarantees, but that in the instant case no unlawful deprivation of liberty existed; and that the petitioners had one course of action available to challenge said judicial decision.
69. The jurisprudence of the inter-American system has found that habeas corpus is the suitable remedy in cases of forced disappearance,[35] |
