September 22, 1994
January 3, 1990, the Inter-American Commission on Human Rights received
a complaint concerning the illegal arrest of Roberto Lissardi and Dino
Rossi carried out, according to the complaint, by members of the
Guatemalan Army. This
complaint was expanded to include additional information on March 9,
1990, and both were sent for reply to the Government on February 1 and
March 15, 1990, respectively.
According to the complaint, Lissardi and Rossi were kidnapped on
September 25, 1989 in the town of Tecún-Unán, in the Department of San
Marcos, Guatemala, by an armed group dressed as civilians, and after a
number of incidents, including mistreatment during their detention, were
released through diplomatic intervention.
to the complaint, the kidnapping took place in the presence of numerous
witnesses in the hotel where the complainants were living.
The kidnappers, who arrived in a white microbus, pointed a
submachine gun at them, beat them, and violently forced them into the
microbus, after which they were driven at high speed out of the city
along a dirt road. The
victims were put in another vehicle, and their belongings were taken
from them. Later they were
forced to walk a long way to a place where they were ordered to go to
sleep. Removing the
blindfolds that had been placed on their eyes, they saw they were in a
concrete room. There were guards there who talked about
they noted other features of their quarters.
following morning, the victims said they heard the roll being called by
number for 23 detainees. Their
captors interrogated them about their knowledge of other persons and
groups, including alleged drug traffickers, and asked them if they would
serve as informants. The
victims refused, saying that they had no information to give.
following morning, they again heard the roll called by number, this time
for 24 persons, and in their room there were 4 handcuffed men.
One of the kidnappers, who appeared to be the leader, said they
were going to be released and killed.
The complainants said that the food given them was served with
military utensils, and that they were again questioned about their
activities in Guatemala.
In the night, the victims were taken in vehicles (a pick-up truck
and a Volkswagen Golf GT type) and released in a deserted place after
their blindfolds were removed. Returning
to the hotel, they learned that while they had been kidnapped, the hotel
had been attacked by a number of armed civilians, and on that same day
two bodies were found hanging by the side of the road to Tilapa.
The bodies turned out to be those of two captives who had been
locked up with them the previous day (see paragraph 4).
The victims noticed that men in civilian clothes were beginning
to watch them, while driving back and forth in front of the hotel in
vehicles whose license tags the plaintiffs reported to the Commission.
victims concluded that they had been held in the nearby "La Montañita"
military barracks, and that coincidentally a few days later the captain
of the G2 in Malacatán, who presumably was in charge of the kidnapping,
was relieved of his command. There
were many kidnappings in the San Marcos department, and the only persons
who had succeeded in getting out alive were the claimants, thanks to
their Italian nationality and diplomatic intervention in their behalf.
For days after they left the hotel, five to seven security guards
visited the shops near the hotel asking about them.
Government did not reply to the complaints that were forwarded to it in
this case, despite the Commission's repeated requests dated July 19,
1990 and January 28, 1991. The
latter communication pointed out the possible application of article 42
of the IACHR Regulations, on the presumption that the complainants'
accusations were true.
CONSIDERATIONS REGARDING THE JURISDICTION
An analysis of the background information reveals that this
matter falls within the competence of the Commission, since it deals
with the facts that involve violation of the human rights recognized by
the American Convention on Human Rights, such as the Right to Personal
Liberty (Article 7 of the Convention), the Right to Humane Treatment
(Article 5 of the Convention), and the Right to Judicial Protection
(Article 25 of the same legal instrument).
2. ADMISSIBILITY. The complaint about the incident was submitted in accordance
with the terms and conditions prescribed in Article 46.1 of the
Convention, fully pursuant to Article 46.2 c of the same legal
instrument. At the same
time, there is no allegation or information whatever in this Commission
showing that the matter that generated the petition is pending in
another international proceeding for settlement (Article 46.1.c of the
OF REMEDIES. Despite the
formal complaint submitted to the court--containing information that is
public knowledge, reported in the periodical, "Prensa Libre,"
of September 29, 1989 and in the daily newspaper, "El Gráfico,"
of September 28, 1989--,the State of Guatemala has demonstrated that it
is unable or unwilling to carry out the inquiry and the due legal
proceedings required, in order to pursue those responsible for the
illegal act regarding which the complaint was filed, despite the
extensive existing evidence and testimony.
In view of the length of time that has elapsed without steps
being taken in any judicial inquiry and given that the Government has
not provided information to the Commission regarding the existence of
any appropriate remedy to resolve the matter under examination, the
Commission considers that the requirement for the exhaustion of remedies
under domestic law mentioned in Article 46.1 of the Convention has been
petitioners have declared that they are ready to reach a friendly
settlement, the Government did not take any action on their proposal.
CONSIDERATIONS REGARDING THE SUBSTANCE OF THE MATTER RAISED
WITH RESPECT TO THE ILLEGAL ARREST OF SEPTEMBER 25, 1989
from the statement made by the victims, which has not been denied by the
Government, it is clear that the victims were kidnapped and taken to
military barracks called "La Montañita," near the town of Tecún-Unán
in San Marcos district.
from the statement made by the victims, not rebutted by the Government,
it is clear that during their captivity, they were able to gain
evidence, from numerous details on the type of establishment and
furniture and from the appearance, equipment, and language of their
captors, that soldiers were involved.
during the kidnap and arrest, they were threatened with death and kept
in a situation of intimidation and harassment.
the ease with which the kidnappers carried out the abduction, with a
large deployment of forces and vehicles, as well as the type of
detention establishment and the open surveillance of the hotel and the
victims following their release, strengthen the conviction that those
responsible were agents of the state's security forces.
the accusers' kidnapping comes at the same time as a series of
disappearances, which remain unsolved, in the San Marcos district in
question; and that, indeed, the intervention of the Embassy of Italy
seems to have been the cause of the release of the victims, who are
nationals of that country.
WITH RESPECT TO THE PROCEEDINGS
notwithstanding the charges brought by the accusers and the ample
information existing concerning the facts, the State of Guatemala has
not carried out any inquiry, nor has it initiated appropriate judicial
proceedings in order to clarify the matter, or identify and bring those
responsible to justice.
although almost four years have elapsed since the incident and despite
the fact that the Commission has repeatedly requested information from
the Government of the Republic of Guatemala, the latter has not
indicated that there has been any progress in the inquiry, nor has it
replied concerning the violations with which its agents were charged in
WITH RESPECT TO THE RIGHT
the illegal arrest of persons constitutes an act in violation of the
American Convention on Human Rights (Article 7 of the Right to Personal
the forced causing--even temporary--of the disappearance of persons by
agents of the state constitutes a complex form of human rights
violation, which should be fully considered and dealt with.
Both the General Assembly of the OAS and the Commission have
repeatedly referred to this practice and urged its eradication (see
Inter-American Court, Case of Velásquez Rodríguez, pp. 149-152).
10. That the treatment
endured by the victims and the threats made against their lives
constitute a violation of Article 5 of the Convention that recognizes
the right to humane treatment.
11. That as stated in
the aforementioned ruling of said Court,
The practice of causing persons to disappear, in addition to
violating directly various provisions of the Convention,...constitutes a
direct abandonment of the values emanating from the concept of human
dignity and from the most fundamental principles of the inter-American
system and of the Convention. The
existence of this practice, more still, indicates contempt for the
obligation of the state to organize itself in such a manner as to
guarantee the rights recognized in the Convention (Case of Velásquez
Rodríguez, p. 158).
12. That, had the
victims been accused of any crime, they should have been brought to
trial legally, in accordance with the provisions of the national
legislation and Article 8 of the Convention.
13. That among the
guarantees that a state must provide for its inhabitants are inquiries,
legal proceedings, and the effective punishment of those responsible for
violations of human rights, which is contrary to what occurred in this
case, as indeed there is no evidence that steps have been taken to
remedy or compensate for said violations.
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
the facts that were the subject of a complaint filed by letter of
January 3, 1990 concerning the illegal arrest of Roberto Lissardi and
Dino Rossi, the treatment meted out them while they were being held, and
the subsequent denial of justice are the responsibility of the agents of
the state and subsequently represent violations of the state's
obligation to respect and guarantee the Right to Personal Liberty
(Article 7), of Article 5 (Right to Humane Treatment), and of the Right
to Judicial Protection (Article 25), guaranteed in the American
Convention on Human Rights, in relation to Article 1.1. of said legal
recommend to the Government of Guatemala, that it carry out an in-depth
and impartial inquiry as soon as possible, for the purpose of clarifying
responsibilities for both the illegal arrest and the treatment of the
victims, as well as the subsequent denial of justice, which, in turn,
requires a separate inquiry and eventual punishment of those
recommend to the Government of Guatemala that it grant the victims
appropriate compensation, as required by law.
recommend to the Government of Guatemala that it take the necessary
measures of principle to ensure that the practice cease of illegal
arrests and refusal of judicial protection.
5. To publish this report, pursuant to Article 48 of the Commission's Regulations and Article 51.3 of the Convention, because the Government of Guatemala did not adopt measures to correct the situation denounced within the time period.