REPORT No. 103/09
RICHARD CONRAD SOLÓRZANO CONTRERAS
October 29, 2009
July 14, 2003, the Inter-American Commission on Human Rights (hereinafter
the “Commission”, the “Inter-American Commission”, or the “IACHR”)
received a petition lodged by Mr. Mario Conrado Solórzano Puac
(hereinafter “the petitioner” and “the alleged victim”)
which claims that the Republic of Guatemala (hereinafter “Guatemala”, the
“State” or the “Guatemalan State”) bears international responsibility for
the lack of due diligence in the investigation, the alleged negligence and
actions to cover up the crime of agents of the state in the criminal
proceeding opened in connection with the murder of his 16-year-old son,
Solórzano Contreras, which occurred on March 10, 2003, as well as the
alleged failure to receive adequate medical care in the moments leading up
to his death while he was hospitalized.
The petitioner claims
that the State did not investigate his son’s murder, which was committed
by a private citizen, with due diligence and, therefore, argues that the
State denied him justice and left the crime unpunished. The petitioner
says that the police and justice authorities failed to act in the opening
stages of the investigation, thereby allowing the alleged culprit to
escape. Specifically, the petitioner argues in this respect that certain
authorities participated in acts designed to conceal the responsibility
and whereabouts of the alleged culprit. For its part, he argues that the
medical staff at the hospital where his wounded son was admitted and
shortly afterwards died failed to provide him the medical care he
required. As to admissibility requirements, the petitioner says that the
remedies under domestic law have been exhausted.
For its part, the
State argues with respect to admissibility requirements that the petition
is inadmissible because the remedies under domestic law have not been
exhausted and, therefore, it is not possible to claim a violation of the
American Convention on Human Rights (hereinafter the “American
Convention”), in accordance with Article 46(1)(a) of said instrument and
Article 31 of the Rules of Procedure of the IACHR. Specifically, the
State says that there are no violations of the American Convention given
that the petitioners’ pleadings are being heard in domestic petitions and,
therefore, they must first be disposed of in the national courts.
IACHR, without prejudging the merits of the matter and having
analyzed the information available and verified compliance with the
admissibility requirements contained in Articles 46 and 47 of the American
Convention and Articles 30 and 37 of its Rules
of Procedure, concludes that the petition is admissible with regard to the
alleged violation of rights recognized in Articles 8 and 25 of the
American Convention in connection with Article 1(1) of that instrument.
With respect to the claims regarding alleged denial of medical treatment
to Richard Conrad Solórzano, the Commission declares them inadmissible due
to non exhaustion of domestic remedies. Furthermore, the Commission
decides to notify the parties of this decision,
make it public, and include it in its Annual Report to the General
Assembly of the Organization of American States.
PROCESSING BY THE COMMISSION
Processing of the Petition
On July 14, 2003, the Commission received a
petition dated July 8, 2003, lodged by Mr. Mario Conrad Solórzano Puar,
President, Coordinator General, and Founder of the Richard Solórzano
Solidarity Group Committee. The petition was assigned number 581-03.
On March 30, 2005, the IACHR relayed the
pertinent portions of the petition to the State and requested it to submit
its response within two months, in accordance with Article 30 of the Rules
of Procedure of the Inter-American Commission on Human Rights (hereinafter
the “Rules of Procedure”). The State’s response was received on May 25,
The IACHR also took receipt of information
submitted by the petitioner on the following dates: May 3 and 4, 2005;
June 17, 2005; August 11, 2005; September 21, 2005; October 13, 2005;
March 6, 2006; June 26, 2006; September 19, 2006; October 11, 2006;
December 12, 2006; March 3, 2007; July 24, 2007; March 24, 2008; July 22,
2008; December 30, 2008, and August 4, 2009.
Said communications were duly forwarded to the State, as appropriate, for
its attention and comment.
In addition the IACHR received comments from
the State on the following dates: May 25, 2005; September 19, 2005;
November 28, 2005; May 4, 2006; August 3, 2006; January 19, 2007; May 4,
2007; September 12, 2007; May 21, 2008; September 9, 2008; May 12, 2009,
and October 8, 2009. Said communications were
duly forwarded to the petitioner.
POSITIONS OF THE PARTIES
The petitioner says
that his son, Richard Conrad Solórzano Contreras, age 16, was stabbed in
the right side of his neck by an individual at around 8:30 p.m. on March
10, 2003, approximately three and a half blocks from his residence.
He was immediately taken to Coatepeque National
As regards the medical assistance that his son
received, the petitioner alleges that at the hospital, the doctor and
nurses on duty who attended him were not concerned with saving his life
because they “merely cleaned the wound, prepared a vein to connect a drip,
and checked his vital signs,” without proceeding to perform surgery in
order to save him. The petitioner says that his son was alive in the
emergency room for approximately 30 minutes before the doctor ordered the
oxygen to be removed and he died minutes later in his brother’s arms. He
adds that a male nurse mocked his son’s brother, telling him that he had
“better find a box.”
As regards the alleged culprit of the
homicide, the petitioner says that on that same day, March 10, 2003, he
was admitted to Coatepeque National Hospital with a number of injuries and
was recognized and reported by the relatives, friends, classmates, and
neighbors who were accompanying his son, to the policeman on duty at the
hospital and to the Deputy Chief of the National Civil Police and the
Assistant Prosecutor from the Office of the Attorney General who went to
the hospital. He says that when the
authorities were asked to arrest the alleged culprit and place him in
preventive detention, they replied that everything was “under control”.
The petitioner mentions that the assistant prosecutor took statements from
three witnesses at the hospital who specifically said that the person
allegedly responsible for the homicide of Richard Conrad Solórzano
Contreras was in the hospital at that moment and they even indicated which
bed he was in. However, he says that despite the fact that the authorities
were advised of the presence in the hospital of the person allegedly
responsible for the homicide, the latter escaped. In this connection, the
petitioner says that the state officials present in the hospital emergency
room could -and should- have arrested the alleged culprit under Article
257 of the Code of Criminal Procedure,
which provides that “the police shall arrest anyone they catch
in flagrante delicto or pursue them immediately after the commission
of an offense.”
The petitioner adds
that there were certain irregularities in the hospital admission records,
which show two different times of admission, the name written differently,
and different indications with respect to his place of origin. The
petitioner holds that the purpose of the latter was to prevent his arrest.
The petitioner says that the alleged killer was last seen in Mexican
territory on his way to the United States.
Furthermore, the petitioner says that on the
night of the events a National Civil Police patrol composed of
approximately four officers spotted a person running, proceeded to pursue
him and quickly caught up with him. He says that the officers pointed
their guns at this person, threatened to shoot him, threw him to the
ground, and beat and kicked him in order to get him to confess to having
murdered someone a few minutes earlier. However, he says that the victim
of this mistreatment was his other son, Alexander Solórzano, age 15, who
had been running after the vehicle that was carrying his mortally wounded
brother to the hospital.
As regards the nature of the petition, he says
that his complaint does not seek to hold the State responsible for his
son’s death, because the homicide did not appear to have been committed by
agents of the State or with their direct participation. He clarifies that
his petition is based on the fact that the alleged culprit escaped because
of the actions of the state authorities, who propitiated his flight and,
the denial of justice, and he claims that several agents of the state were
involved in a conspiracy to conceal the responsibility and whereabouts of
the alleged culprit.
As to the criminal
inquiry into his son’s murder by the Court of First Instance for Criminal
Matters and Environmental Offenses in and for the Municipality of
Coatepeque, numbered 1200-03,
he says that it remains in complete impunity. According to the petitioner,
this is clear from the confirmation that a succession of assistant
prosecutors were assigned to the investigation; that the authorities went
to the hospital but that neither the Office of the Attorney General nor
the National Civil Police visited the scene of the crime to investigate
and collect relevant information; that an arrest warrant was only issued
on March 19, 2003, and not served because the alleged culprit escaped;
that information was falsified in numerous procedures; and that no public
officials were investigated in connection with the alleged escape of the
culprit and the purported negligence in the medical treatment administered
to his son. He also says that, given that the police did not visit the
scene of crime, the murder weapon was searched for and found by Richard
Conrad’s next of kin,
who handed it over to the appropriate authorities.
The petitioner adds that on January 22, 2004,
he filed a criminal complaint with the Court of First Instance for
Criminal Matters and Environmental Offenses in and for the Municipality of
Coatepeque, in which he charged the representative of the Office of the
Attorney General, the representative of the National Civil Police, and the
Deputy Chief of the National Civil Police, who were at the hospital on the
night of the events, with denial of justice and aiding and abetting. He
reports that the complaint was accepted, processed, and subsequently
dismissed because the court found that the state agents had acted in
accordance to law.
The petitioner also reports that in early 2005
he filed another complaint, this time with the Office of the
Anticorruption Prosecutor of the Office of the Attorney General, in which
he charged the same public officials as mentioned above with corruption
and cover-up charges after the facts. The complaint was declared to be
with due cause and referred to the Office of the General Supervisor of the
Office of the Attorney General for processing, as case No. 4-2005. The
documents accompanying the petition include a report from the Office of
the General Supervisor of the Office of the Attorney General dated
February 2, 2005, which concluded, inter alia, that the escape of
the suspect was facilitated by the tardiness in issuing the arrest
warrant, given that the identity of the accused was known on the night of
the events, and it recommended that a disciplinary proceeding be opened.
With respect to exhaustion of the remedies
under domestic law, the petitioner says that he attempted all the
appropriate judicial and administrative steps but that they did not
receive effective treatment.
Finally, he says that
as a result of lodging the petition with the IACHR he feared that he would
be detained and extrajudicially executed by “clandestine para-police
groups”. In this connection, he says that on January 31, 2006, while
standing outside his home with a relative and a neighbor he was the victim
of an attack in which gunshots were fired; however, he emerged unharmed.
He reports that this incident remains in impunity.
With respect to the
death of Richard Conrad Solórzano Contreras, the State holds that
according to the medical records he was admitted to the emergency room of
Coatepeque National Hospital on March 10, 2003, with a stab wound five
centimeters deep and two to three centimeters long located over the vena
cava causing his right lung to fill with blood.
In this regard, the State says that the
appropriate resuscitation procedures were carried out but that he
eventually died due complications from the wound. It says that, in the
opinion of the doctors who treated him, he died immediately.
As to the criminal proceeding, the State holds
that the Office of the Attorney General has carried out the legally
required steps in order to locate the man responsible for the crime.
In that regard, it provides a detailed account
of all the steps taken, among which the following may be mentioned for
March 11, 2003, the removal of the corpse was carried out.
March 19, 2003, the Office of the Attorney General requested a detention
order for the alleged culprit.
March 21, 2003, the Judge of the Court of First Instance for Criminal
Matters and Environmental Offenses in and for the Municipality of
Coatepeque issued a detention order.
May 9, 2003, Mr. Mario Conrado Solórzano Puac requested his inclusion as
February 20, 2004, the detention order was reissued to the National Civil
Police Department and the Office of the Chief of Police of the Department
of San Marcos.
March 29, 2004, a search warrant was requested for the building in which
the parents of the accused reside in order to locate him.
search was carried out on April 9, 2004.
April 19, 2004, an official letter was sent to the Criminal Investigation
Service requesting them to carry out an investigation in order to locate
2005, the whereabouts of the accused was entered in the record, indicating
that he was out of the country.
July 29, 2005, the Office of the Attorney General requested Interpol to
enforce the international detention order.
With respect to the
judicial proceeding for the crimes of denial of justice and cover-up, the
State says that on January 22, 2004, Mr. Mario Conrado Solórzano filed a
criminal complaint with the Court of First Instance for Criminal and
Narcotics-Related Matters in and for Coatepeque, in which he accused the
assistant prosecutor, the representative of the National Civil Police and
the Deputy Chief of the National Civil Police, who were present on the
night of the events, of the aforesaid offenses. In that connection, the
State says that on June 15, 2004, the Court dismissed the complaints
because it found that the agents of the state had acted in accordance to
law. Notice of that decision was issued on June 23, 2004, and the
complainant has not appealed it.
As regards the administrative proceeding
opened against the assistant prosecutor who was present at the hospital on
the night of the murder, the State notes that the District Prosecutor for
the Municipality of Coatepeque indicated in his report of February 22,
2005, prepared at the request of the Office of the General Supervisor of
the Office of the Attorney General, that the complaint should be dismissed
and closed under the principle of non bis in idem because the
assistant prosecutor had already being the subject of a proceeding
instituted in connection with the same events for alleged denial of
justice and being an accessory after the fact in which he was cleared of
In its communication
of October 2009, the State submitted updated information on the detention
order for the person allegedly responsible for the murder. In that
connection, the State reports that the order remains in force in the
Department of San Marcos, but that a request would be made to the judge
presiding over the case to extend the detention order in order to notify
it to every National Civil Police precinct in the country.
Furthermore, the State says that the Office of
the Attorney General reported in June 2009 that the measures taken to
locate and capture the culprit have been to send official letters to the
National Civil Police Department and the Office of the Chief of Police of
the Department of San Marcos, as well as coordination with Interpol.
Finally, with respect to the admissibility of
the petition, the State argues that the complaints at the domestic level
must first be settled in keeping with Article 46(1)(a) of the Convention.
the State says that there are no violations of the American Convention
given that all of the petitioners’ pleadings are being heard in domestic
petitions and, therefore, they must first be disposed of in the national
courts. It adds that the process remains at the investigation stage
the Commission ratione personae, ratione loci, ratione temporis,
and ratione materiae
The petitioner has
standing under Article 44 of the American Convention to lodge petitions on
his own behalf as an alleged victim in respect of whom the Guatemalan
State undertook to observe and ensure the rights recognized in the
American Convention. Thus, the Commission has ratione personae
competence to examine the petition.
The Commission is
also competent ratione loci to take up the petition because it
alleges violations of rights protected in the American Convention that are
purported to have occurred within the jurisdiction of the State.
The Commission is competent ratione
temporis because the obligation to observe and ensure the rights
protected in the American Convention was already binding upon Guatemala at
the time the events described in the petition are alleged to have
occurred, given that it ratified the American Convention on May 25, 1978.
Commission has ratione materiae competence to analyze the instant
case because the petition alleges possible violations of human rights
protected by the American Convention.
requirements for the petition
Exhaustion of domestic remedies
Article 46(1)(a) of
the American Convention provides that admission of petitions lodged with
the Inter-American Commission in keeping with Article 44 of the Convention
shall be subject to the requirement that the remedies under domestic law
have been pursued and exhausted in accordance with generally recognized
principles of international law. This rule is designed to allow national
authorities to examine alleged violations of protected rights and, as
appropriate, to resolve them before they are taken up in an international
The prior exhaustion rule applies when there
are actually available in the national system suitable and effective
remedies to repair the alleged violation. In that connection, Article
46(2) specifies that the rule does not apply when: a) the domestic
legislation of the State concerned does not afford due process of law for
the protection of the right in question; b) the alleged victim did not
have access to the remedies under domestic law; and, c) there has been
unwarranted delay in rendering a final judgment under said remedies As
Article 31 of the IACHR Rules of Procedure provides, when the petitioner
invokes one of these exceptions, it is up to the State concerned to
demonstrate that the remedies under domestic law have not been exhausted,
unless that is clearly evident from the record.
The petitioner says that he attempted all the
appropriate judicial and administrative steps but that they did not
receive effective treatment and, therefore,
his son’s murder remains unpunished. He
also says that the public officials involved in the purported
cover-up of the alleged culprit’s escape continue to serve in state organs.
The petitioner also claims that the medical staff at the hospital where
his wounded son was admitted did not provide him with the medical
assistance necessary to save his life.
For its part, the State claims non-exhaustion
of domestic remedies on the basis that the criminal proceeding to
elucidate the facts and apportion the respective criminal responsibilities
has not concluded. The State also holds that the right to judicial
protection was not violated because Mr. Solórzano’s complaint was admitted
and the respective criminal prosecution and proceedings initiated. In
that connection, the IACHR proceeds to analyze the aforesaid rule under
In this regard, the Commission should point
out that in order to determine whether the Convention rule requiring
exhaustion of domestic remedies has been satisfied, the purpose of the
petition must be determined and the domestic remedies used to contest the
situation denounced must be analyzed. Thus, the Commission notes that the
purpose of the complaint in the instant case concerns the alleged failure
to provide Richard Conrad Solórzano with adequate medical treatment in the
moments leading up to his death while he was hospitalized; the purported
lack of due diligence in the investigation, and
the supposed negligence on the part of agents of the State in the criminal
proceeding instituted following his death.
With respect to the
claims of inadequate medical attention at the hospital to which Richard
Solórzano was admitted wounded on the night of the homicide, the IACHR
notes that the petitioner has not supplied any information to suggest the
invocation of any remedy at the national level designed to bring these
circumstances to the attention of the appropriate judicial authorities.
Consequently, the IACHR finds that said claims are inadmissible since it
has not been shown that the rule on prior exhaustion of domestic remedies
contained in the Convention has been met, nor has an explanation been
provided of circumstances that warrant an exception to this rule.
As regards the submissions regarding
lack of due diligence
in the investigation and supposed negligence on the part of agents of the
State in the criminal proceeding instituted following the homicide of
Richard Conrad Solórzano Contreras, the Commission finds that the facts
connected with the aforesaid homicide entail publicly actionable offenses
under the country’s domestic laws. The
Commission’s case law recognizes that when a publicly actionable offense
is committed, the State has the obligation to institute criminal
proceedings and pursue them,
and that in such cases, this is the best way to clarify the facts, judge
the perpetrators, and establish the corresponding criminal punishment, in
addition to providing for other forms of reparation, including financial
In this regard, the
IACHR sees that on the very day of Richard Conrad’s homicide, that is,
March 10, 2003, a criminal
investigation was opened and a case
brought before the Court of First Instance for Criminal Matters and
Environmental Offenses in and for the Municipality of Coatepeque. The
Commission notes that in said proceeding the judge of the Court of First
Instance for Criminal Matters and Environmental Offenses in and for the
Municipality of Coatepeque only issued a detention order for the alleged
culprit of the murder of the Solórzano youth on March 21, 2003.
also shows that one year after the detention order was issued, on April 9,
2004, a search was carried out of the building in which the parents of the
accused reside in order to locate him.
Furthermore, in response to an investigation report dated February
28, 2005, to the effect that the alleged culprit was out of the country,
on July 29, 2005, the Office of the Attorney General requested Interpol to
enforce the international detention order.
It emerges from the information supplied by
the State that since 2005 no further judicial steps to locate the alleged
murder culprit have been taken in the framework of the aforesaid criminal
proceeding, other than what the State reported in its note of October 8,
2009, where it mentioned that a request would be made to extend the
detention in order to notify it to every National Civil Police precinct in
For its part, the IACHR finds that the
timeline of these proceedings is indicative of delay, particularly when
one considers that under Guatemalan criminal law, the absence of the
accused does not suspend the criminal investigation in its preparatory
stage until the opening of the trial proper.
In keeping with the foregoing, as a general
rule, criminal investigations must be conducted promptly, in order to
protect the interests of the victims, preserve the evidence, and safeguard
the rights of anyone considered a suspect in the context of the
investigation. As the Inter-American Court has noted, while every
criminal investigation must meet a series of legal requirements, the rule
of prior exhaustion of domestic remedies should not lead international
action on behalf of the victims to come to a halt or to be delayed to the
point of being rendered ineffective.
Commission finds that the exception provided in Article 46(2)(c) of the
American Convention is applicable. Accordingly the requirement of prior
exhaustion of domestic remedies contained in the American Convention does
not apply and nor, therefore, does the six-month deadline for lodging the
All that remains to be noted in this respect
is that invocation of the exceptions to the rule of exhaustion of domestic
remedies provided in Article 46(2) of the Convention is closely linked to
the determination of possible violations of certain rights set forth
therein, such as guarantees of access to justice. However, Article 46(2),
by its nature and purpose, is a self-contained provision vis á vis
the substantive provisions contained in the Convention. Therefore, to
determine whether or not the exceptions to the rule of exhaustion of
domestic remedies provided in subparagraphs (a), (b) and (c) of the
aforesaid provision are applicable to a particular case requires an
examination carried out prior to and separate from the analysis of the
merits of the case, since it depends on a standard of evaluation different
to that used to establish whether or not there has been a violation of
Articles 8 and 25 of the Convention. It should be clarified that the
causes and effects that have prevented exhaustion of domestic remedies
will be examined in the report that the IACHR adopts on the merits of the
dispute, in order to determine if they constitute violations of the
Under Article 32(2)
of the Rules of Procedure of the IACHR, when the exceptions to the rule
requiring prior exhaustion of domestic remedies apply, the petition is to
be presented within what the Commission deems to be a reasonable period.
Pursuant to this provision, in its analysis, the Commission “shall
consider the date on which the alleged violation of rights occurred and
the circumstances of each case.”
With respect to the petition under analysis,
the Commission has determined that the exception provided in Article
46(2)(c) is applicable, and therefore, it must evaluate if the petition
was presented within a reasonable time in accordance with the specific
circumstances of the situation submitted for its consideration. In that
regard, given that the criminal inquiry into the murder of Richard Conrad
Solórzano Contreras on March 10, 2003, is at the preliminary investigation
stage, the Commission concludes that the instant petition was presented
within a reasonable time.
Duplication of international proceedings and res judicata
There is nothing in the record to suggest that
the subject matter of the petition is pending in another international
proceeding for settlement or that it has previously been studied by the
Inter-American Commission. Therefore, the requirements set forth in
Articles 46(1)(c) and 47(d) must be deemed met.
Characterization of the alleged facts
As the Commission has held in other cases, it
is not appropriate for it at this stage of the proceedings to determine
whether or not the American Convention has been violated For the purposes
of admissibility, the IACHR simply has to determine if the arguments set
out in the petition state facts that could tend to establish a violation
of the American Convention, as required under Article 47(b) thereof, and
whether the petition is “manifestly groundless” or “obviously out of
order,” as paragraph (c) of the same Article provides. The standard by
which to assess these extremes is different from the one needed to decide
the merits of a petition. At this stage the IACHR must perform a summary
prima facie evaluation that does not imply any prejudgment or
advance opinion on the merits of the petition. By establishing two
clearly separate phases -one for admissibility and the other for the
merits- the Commission’s own Rules of Procedure reflect the distinction
between the evaluation the Commission must make to declare a petition
admissible, and the evaluation required to determine the responsibility of
In the instant case
the petitioner alleges violation by the Guatemalan State of fair trial
guarantees and access to justice in the investigation of his son’s
murder. The petitioner claims in this regard
that the police and the representatives of the Office of the Attorney
General did not adopt the measures needed to investigate and get to
the truth of the crime, and draws attention to the lapses of inactivity in
both the investigation and the search for the alleged perpetrator.
The petitioner alleges irregularities in the
investigation and the involvement of state agents in concealing the
responsibility and whereabouts of the alleged culprit, according to the
arguments referred in the paragraph sixteen of the instant report.
The State, for its part, argues that the steps taken to investigate the
complaints filed by the petitioner were pursued in accordance to law.
According to the
standard of assessment applied in the admissibility stage, which is
necessarily preliminary in nature, the petition contains claims that
require review in the merits stage in order to determine if they reflect a
violation of Mr. Mario Conrado Solórzano’s right to judicial protection
and fair trial guarantees, especially if the State proceeded with due
diligence negligence in the investigation of the alleged facts, and if it
took place concrete actions to cover up the crime or judicial corruption,
according to the mentioned in paragraph sixteen.
on the facts described in petition, the Commission finds that the
petitioner has formulated allegations that are neither “manifestly
groundless” nor “obviously out of order” and which, if found to be true,
could constitute violations of Articles 8 and 25 of the American
Convention, respectively, in conjunction with Articles 1(1) of that
aspects of the complaint are clearly not baseless or out of order, the
Commission considers the requirements set forth in Articles 47(b) and (c)
of the American Convention to be met
The Commission concludes that the case is
admissible and that it is competent to examine the complaint presented by
the petitioner with regard to the alleged violation of Articles 8 and 25
of the American Convention, taken together with the obligation under
Articles 1(1) thereof
Based on the factual and legal arguments given
above and without prejudging the merits of the matter,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
declare the instant petition admissible with regard to the alleged
violation of the rights recognized in Articles 8 and 25 of the American
Convention, taken in conjunction with the obligation under Articles 1(1)
transmit this report to the petitioner and the State.
proceed with its analysis of merits in the case.
publish this decision and include it in its Annual Report to the OAS
Done and signed in the city of Washington, D.C., on the 29th
day of the month of October, 2009. (Signed): Luz Patricia Mejía Guerrero,
President; Víctor E. Abramovich, First Vice-President; Felipe
Paulo Sérgio Pinheiro, and Paolo G.
Carozza, members of the Commission.
Article 257. (Arrest)
The police shall
arrest anyone they catch in flagrante delicto or pursue them
immediately after the commission of an offense.
In the same
circumstances any person has the authority to make the arrest and to
prevent the offense from causing further consequences. They shall
immediately turn over of the arrested man, together with any objects
collected, to the Office of the Attorney General, the police, or the
nearest judicial authority.
The Office of the
Attorney General may request the judge or court to order the arrest of
the accused when it considers that the legal requirements are met or
that their incarceration is necessary, in which case it shall place
them at the disposal of the judge in charge of the investigation. The
judge may order any non-custodial measures or dispense with them
altogether, in which case they shall set the accused at liberty.
In this regard, the Code of Criminal Procedure of Guatemala provides
as follows: Article 79: (Default) The accused shall be declared
in default when, without the permission of the court, they fail to
appear in response to a summons without a serious impediment to do so;
flee from the facility or place where they were detained; disregard an
order issued for their arrest; or absent themselves from the place
assigned as their residence.
of default shall be issued by the judge of first instance or the
competent tribunal following confirmation of non-appearance, flight,
or absence, in addition to which a preventive detention order shall be
A ne exeat
order shall also be issued before the appropriate authorities to
prevent them from leaving the country. A photograph, drawing,
information and physical description of the defaulter may be published
in the media in order to facilitate their immediate arrest.
(Effects of default). The declaration of default shall not
suspend the preparatory process. In the rest of the process, the
procedure shall only be suspended with respect to the defaulter, in
which case the proceedings, effects, instruments or evidence which it
is indispensable to preserve shall be reserved, and it shall continue
for the other accused present.
of default shall entail revocation of the liberty that the accused
might have been granted and shall obligate them to pay the costs
When the accused
appears or is turned over to the authority that seeks them, the
proceeding with respect to this accused shall resume from the