REPORT OF THE INTER-AMERICAN COMMISSION
On March 17, 1987, the Inter-American Commission on Human Rights
received the following complaint:
Waldemar Duarte Fernandez, farmer, was illegally and arbitrarily detained
by security forces while hunting on the Pataxte farm, El Estor, Izabal, in the
company of Raul Izaguirre and a local man.
The latter was asked to leave and Mr. Izaguirre was set free. His
family members as well as the University of San Carlos have requested his
immediate release and have looked for him unsuccessfully in hospitals and
detention centers. The event occurred on April 26, 1986.
At this time, he is considered disappeared.
Writs of habeas corpus have been filed unsuccessfully on his
behalf with the head of the judicial branch.
In a letter dated April 24, 1987, the pertinent parts of this complaint
were transmitted to the Government of Guatemala.
The Government was requested to provide pertinent information that would
make it possible to determine whether the remedies of domestic jurisdiction had
been exhausted. The Government was
given 90 days to reply to the Commission's request.
No reply was received and the time period lapsed despite informal efforts
made to officials of the Guatemalan Mission to the OAS and the Advisory
Commission of the President of the Republic (COPADEH).
Therefore, the Inter-American Commission on Human Rights
reiterated, on August 17, 1987, March 4, 1988, and February 17, 1989, its
request for information to the Government of Guatemala.
The Commission received no response to any of its requests and,
therefore, on July 6, 1990,the Commission sent another letter to the Government
of Guatemala reiterating its request for information and warning that if such
information were not received within a period of 30 days it would consider the
application of Article 42 of its Regulations, which authorizes it to presume as
true the allegations contained in the complaint, as long as other evidence does
not lead to a different conclusion.
In addition, the Commission has undertaken a number of direct efforts to
resolve this case, without success, with the President's Advisory Commission on
Human Rights (COPADEH) in July of 1989 and February 1990, as well as with
members of the Permanent Mission of Guatemala to the OAS in Washington, whose
officials in April, 1989 and again in May, 1990 appeared at the Commission's
headquarters to discuss pending cases in which the IACHR had protested the
Government of Guatemala's lack of cooperation.
On this last occasion the Government was again provided with copies of
the relevant correspondence on this case. On
an earlier occasion the Commission had sent the same files to the Foreign
Ministry by facsimile.
That the petition meets the formal requirements of admissibility
contained in the American Convention on Human Rights and in the Regulations of
the Inter-American Commission on Human Rights.
That in this case it is clear that the petitioner has not received
effective protection from the courts and thus the requirements relating to the
exhaustion of domestic remedies do not apply.
That the friendly settlement procedure to which Articles 48 f) and 45 of
the American Convention and the Regulations of the Commission, respectively, do
not apply to this case.
That the petition is not pending before any other comparable
international body nor is it a duplication of an earlier petition already
examined by the Commission.
That all efforts have been made to obtain adequate information from the
Government of Guatemala in relation to the disappearance of the
above-mentioned person and all the legal and regulatory provisions, as
established in the Convention and Regulations of the Commission, have been
Having provided no response, the Government of Guatemala has failed to
fulfill its international obligation to provide information to the Commission
within a reasonable time period as provided in Article 48 of the American
That the General Assembly of the Organization of American States declared
in Resolution 666 (XIII-0/83) and Resolution 742 (XIV-0/84) that
"the forced disappearance of persons is an affront to the conscience of the
hemisphere and constitutes a crime against humanity."
That the Commission has not found any information that allows it to reach
a different conclusion.
That the Commission, in its report to the General Assembly for 1987,
discussed the excesses that were being committed by means of the practice of
kidnapping and forced disappearance of persons, of which the statistical
information provided by the National Police of Guatemala was incontrovertible
That Article 42 of the Commission's Regulations establishes the
The facts reported in the petition whose pertinent parts have been
transmitted to the government of the state in reference shall be presumed to be
true if, during the maximum period set by the Commission under the provisions of
Article 34 paragraph 5, the government has not provided the pertinent
information, as long as other evidence does not lead to a different conclusion.
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
In exercise of
the powers invested in it,
To presume true the facts reported in the petition relating to the
illegal detention and the later disappearance of Waldemar Duarte Fernandez by
security forces of the Government of Guatemala.
To declare that the Government of Guatemala has failed to fulfill its
obligations to respect the human rights and guarantees contemplated in Article 1
of the American Convention on Human Rights to which Guatemala is a party.
To declare that the Government of Guatemala has violated Articles 4
(right to life) and 7 (right to personal liberty).
To recommend to the Government of Guatemala that it undertake a full and
impartial investigation to determine the responsibility for the crimes denounced
and, in accordance with Guatemalan law, punish those responsible for them and
pay just compensation to the family members of the victim.
To communicate this report to the Government of Guatemala and to the
petitioner with the request that they do not publish it.
If within a period of 90 days, the Government of Guatemala fails to
implement the recommendations contained in operative paragraph number 4 above,
the Commission shall publish this report in its Annual Report to the General
Assembly of the Organization of American States pursuant to Article 63 g. of its