REPORT Nº 10/96
March 5, 1996
On September 11, 1990, Myrna Mack left her office in Guatemala City to
return home. Two individuals armed
with knives ambushed and attacked her, killing her with 27 knife wounds.
The perpetrators then left the scene, taking with them the victim's
portfolio and purse and a plastic bag she| carried.
The petitioners presented a petition to the Inter-American Commission on
Human Rights (the "Commission") denouncing the murder of Myrna Mack
and requesting investigation and clarification of the incident.
Mrs. Mack was a Guatemalan anthropologist whose research and work was
focused on the issue of displaced persons in Guatemala.
The petitioners alleged that agents of the security forces of the
Government of Guatemala had been responsible for the murder of Myrna Mack as a
reprisal for her work which was critical of the State.
On September 17, 1990, the Commission opened this case as case number
Proceedings before the Commission
After they presented their original complaint and up until December 21,
1995, the petitioners sent numerous communications to the Commission providing
additional information in relation to this case.
They provided information about the police investigation, the arrest of
Noél Beteta (one of those allegedly responsible for the murder of Myrna Mack),
the death of José Mérida Escobar, the police investigator who prepared the
investigative report in the case, the advances in the domestic criminal
processes, and the appeals and other judicial processes initiated by Helen Mack
requesting access to certain evidence and the opening of a criminal proceeding
against other persons who planned and committed the crime against Myrna Mack. Finally, the petitioners urged that the investigation and the
criminal processes in Guatemala be brought to a conclusion and requested that
the Commission order compensation for the family members of Myrna Mack.
The Government provided to the Commission a response in the case on
February 20, 1991. After that date
and up until February 14, 1996, the Commission received additional information
from the Government about the police investigations, the arrest of Noél de Jesús
Beteta Alvarez, the results of the various proceedings initiated by the Public
Ministry and the petitioners within Guatemala and the advances in the domestic
Facts Relating to the Question of Admissibility
The facts described below were included in the information provided by
the petitioners and the Government. The
facts alleged by the petitioners were not denied by the Government.
Investigations Carried Out by the Guatemalan Police
The investigations carried out in Guatemala in the case of Myrna Mack
began with the investigative work of the Criminal Investigations Department on
the same day of the murder under the direction of the General Director of the
Police. The agents in the Criminal Investigations Department arrived
at the scene of the crime immediately after the murder.
The Justice of the Peace on duty also appeared at the scene of the crime
and ordered that Myrna Mack's corpse be taken to the Forensic Services Office
for Autopsies at the Judical Organism.
The report prepared by the forensic physician concluded that Myrna Mack's
death was caused by 27 wounds to the neck, thorax and abdomen and the resulting
hypervolemic shock. The report also
concluded that the weapon used was a knife.
The report failed to include any analysis of the victim's hair or of the
pieces of skin found under the victim's fingernails which presumably belonged to
During the investigations carried out by the Homicide Section of the
Criminal Investigations Department of the National Police, negligent acts and
omissions occurred which endangered and obstructed the assignment of
responsibility in the case:
the scene of the crime, even with the Director of the National Police present,
the police did not take the samples necessary to allow for fingerprint testing,
alleging that rain precluded the completion of that task.
However, there was no rain the day of the murder until several hours
after the police arrived at the scene of the crime.
scene of the crime was not protected with a police cordon which would have kept
those not involved in the investigations away from the scene.
police failed to analyze the remains of a plastic bag which was found in the
victim's hands and which presumably would have been touched by the persons
responsible for the murder. Nor was
the victim's clothing held to allow for tracing of the blood stains left by the
The head of the Homicide Section of the National Police, José Mérida
Escobar, prepared a report dated September 29, 1990 with Julio César Pérez
Ixcajop. In that report, Noél de
Jesús Beteta Alvarez was identified as the suspected material author of the
murder of Myrna Mack. The report
also established that Beteta acted under orders from his superiors, high-level
officials of the Guatemalan Presidential High Command ("EMP").
The report's conclusions were based on the statements of Noél Beteta,
who declared that he had worked under the orders of Edgar Godoy Gaitán (an EMP
official) and the statements of witnesses who provided descriptions of persons
involved in the murder, stating that they appeared to be military persons.
On June 26, 1991, investigator Mérida Escobar testified before the court
ratifying his report of September 29, 1990.
On August 5, 1991, investigator Mérida Escobar was shot and murdered
less than 100 meters from the offices of the police.
At the time of his murder, Mérida Escobar was advancing in the
investigations in the Myrna Mack case and in the preparation of the case for
trial. However, the investigations
into the death of Mérida Escobar do not treat his death as linked to his work
in the Myrna Mack case.
In a new report dated November 4, 1990, the police concluded that the
motive for the murder of Myrna Mack was theft and no member of the military or
higher EMP official is implicated as a suspect.
The November 4, 1990 investigative report of the Homicide Section of the
National Police simply quotes directly from medical and other reports. The report shows no effort at independent evaluation or
investigation. In addition, the
police report fails to mention several important pieces of evidence.
For example, the report does not mention that eyewitnesses stated that
the persons who attacked Mrs. Mack took her portfolio and purse but not her
jewelry or her car, implying that the motive for the murder was not robbery.
The original police report dated September 29 can no longer be ratified
by its authors. Investigator
Escobar was murdered and Mr. Pérez decided to leave Guatemala as a result of
threats that he received. In
addition, two witnesses now refuse to ratify their previous statements to police
investigators which were included in the September 29 report.
The statements of these two witnesses indicated that the witnesses had
observed the surveillance under which Myrna Mack was placed before her murder
and had noted that the men who engaged in the surveillance appeared to be from
the military and had recognized one of them specifically as an employee of the
EMP. One of the two witnesses has
specifically requested that he not be involved in the case "for reasons of
It is also no longer possible to obtain statements from the only two
eyewitnesses to the murder itself, José Tejeda Enríquez and Juan Carlos
Marroquín Tejeda. A few days before these two witnesses were to appear before
the court to provide testimony, they received anonymous letters in which they
were threatened with death. During
the same time period, the house of Mr. Marroquín was machine-gunned by a group
of armed men. These incidents
forced the witnesses to leave the country.
The Domestic Criminal Proceedings
The Public Ministry is the prosecuting agent in the original criminal
proceeding which was initiated to investigate the death of Myrna Mack.
Helen Mack, sister of the victim, intervened as private accuser. The criminal proceeding was carried out against Noél de Jesús
Beteta Alvarez, suspected material author of the murder.
The criminal proceeding against Beteta lasted for four years.
The case was seen by a total of twelve judges.
The private accuser, Helen Mack, attempted to prove in the criminal
proceeding the participation in the crime as intellectual authors of Edgar
Augusto Godoy Gaitán, Juan Valencia Osorio y Juan Guillermo Oliva Carrera,
Beteta's superiors at the EMP. Helen
Mack also accused Juan José Larios, Juan José del Cid Morales and another
individual with the last name Charchal as the persons who assisted Beteta in the
surveillance of Myrna Mack and in the actual execution of the murder.
All of these employees of the EMP were included in the police report of
September 29 as suspected material and intellectual authors of the murder.
Helen Mack sought to include these persons as defendants in the criminal
The Public Ministry and the private accuser, with the intention of
proving that the above-named persons were guilty of having participated in the
murder, requested through the court with jurisdiction over the case specific
information and documentation from State agencies such as the Ministry of
Defense and the EMP. The information which was requested was related to the
identity and activities of the suspected material and intellectual authors and
to other questions surrounding the murder.
Each of these requests was rejected on the grounds that the information
was confidential and included State secrets.
decision in the criminal proceeding carried out against Beteta was issued on
February 12, 1993 by the Third Court of First Instance for Decision in Criminal
Matters. The Court of First Instance convicted only Noél de Jesús
Beteta Alvarez. The other suspected
material and intellectual authors of the murder were neither processed nor
convicted by the court because of insufficient evidence.
The decision of the court convicted Beteta as guilty of having committed
the crime of murder against Myrna Mack and ordered an incommutable sentence of
25 years in prison. The decision
also rejected the petition to open a proceeding against Edgar Augusto Godoy Gaitán,
Juan Valencia Osorio, Juan Guillermo Oliva Carrera, Juan José Larios, Juan José
del Cid Morales and the individual of last name Charchal.
The evidentiary basis for the decision of the Court of First Instance was
the investigation carried out by the police and included in the report dated
November 4, 1990. That report did
not mention any employee of the EMP or other military official, other than
Beteta, as a possible participant in the crime which resulted in Myrna Mack's
The private accuser filed an appeal against the sentence of the Third
Court of First Instance, petitioning for the opening of a criminal proceeding
against the other material and intellectual authors of the crime.
By resolution of April 28, 1993, the Fourth Chamber of the Court of
Appeals affirmed in its totality the conviction which had been appealed. On May 4 and May 21, 1993 respectively, the appellate court
also issued decisions rejecting the appeals for "amplification" and
"replacement" filed by the Public Ministry. Helen Mack also filed an appeal for "amplification"
requesting that the Court of Appeals explain further the reasons upon which it
based its rejection of the petition to try the other persons suspected of having
participated in the murder of her sister. On June 14, 1993, that appeal was also rejected.
The private accuser filed an appeal of "cassation" with the
Supreme Court of Guatemala against the sentence of the Fourth Chamber of the
Court of Appeals emitted on April 28, 1993.
At this point, the Public Ministry refused to continue to pursue any
further appeals or to request the initiation of a criminal proceeding against
the intellectual authors of the murder.
In support of the appeal of cassation, the private accuser alleged
violations of her rights to petition and to freedom of access to the courts of
justice, arguing that her petitions to open an investigation with respect to the
other persons involved in the death of her sister had been repeatedly denied. In
the public hearing on the appeal which took place on July 26, 1993 at the
Supreme Court, the Public Ministry stated that, if a new proceeding were to be
initiated, that proceeding should only be brought against the other material
author who participated in the actual murder with Beteta.
The Public Ministry asked that no proceeding be initiated against the
suspected intellectual authors at the EMP.
On February 9, 1994, the Supreme Court rejected the appeal of cassation
holding that Helen Mack's rights had not been violated as alleged.
The Court also rejected the appeal of "amparo" brought by
Beteta against the decision of the Fourt Chamber of the Court of Appeals which
upheld his conviction.
Pursuant to the powers granted by Article 749 of the Guatemalan Criminal
Procedure Code, the Supreme Court decided sua sponte ("de oficio")
to analyze again the decision of the Court of Appeals.
Analyzing the case for the second time, the Court held that the right of
the private accuser to carry out the accusation had been violated.
The Court concluded that sufficient indicia of the possible participation
of other persons in the murder were produced in the first proceeding.
By decision of February 9, 1994, the Court ordered that a criminal
proceeding be opened against the following suspects:
Edgar Godoy Gaitán, Juan Valencia Osorio, Juan Guillermo Oliva Carrera,
Juan José Larios, Juan José del Cid Morales and an individual of the last name
Charchal. The question of the
participation of these suspects in the murder of Myrna Mack was to be decided in
this new proceeding.
The new criminal proceeding was delayed while the accused higher
officials attempted without success to nullify the February 9, 1994 order of the
Supreme Court requiring the initiation of a proceeding against them.
On December 6, 1994, the Court of Constitutionality issued a decision
rejecting the petition for amparo brought by the accused persons.
However, the new criminal proceeding remained inactive during almost one
year, after the December 6, 1994 sentence until the end of 1995, because of the
failure to appoint a new prosecutor and because of the refusal of the military
to cooperate in the investigation providing the necessary information.
In this second proceeding, the private accuser filed with the Supreme
Court a request for "Injunctive Relief of Attachment" of documents in
the possession of the National Ministry of Defense and the EMP.
Helen Mack filed this request in an attempt to protect and obtain
evidentiary items important to her attempt to prove the complicity of the second
set of defendants in the murder of Myrna Mack.
The request was rejected by the Court on March 18, 1994.
The private accuser filed an appeal for amparo with the Court of
Constitutionality against the Supreme Court decision of March 18, 1994 rejecting
the request for the injunctive relief of attachment.
The appeal was based on the argument that she had been denied her rights
to petition and to freedom of access to the courts, protected by the laws and
Constitution of Guatemala. On
October 18, 1994, the Court of Constitutionality denied the appeal for amparo,
without analyzing the merits. The
Court simply stated that the Supreme Court had acted in accordance with its
legal powers, because that court no longer had possession of the Myrna Mack case
file within which the injunctive relief was requested and thus the court of
first instance, which did have possession of the case file, should have ruled on
the request. The private accuser
filed an appeal for clarification against that resolution of the Court of
Constitutionality, which was rejected on December 21, 1994 on the grounds that
it lacked merit. Later, the Court
of Appeals reversed its decision, ordering that the requested documents be
provided by the Defense Ministry.
The Ministry of Defense has provided only a portion of the information it
was ordered by the appellate court to produce, arguing that the relevant
information is found in documents containing military and diplomatic information
related to national security and that certain information was provided by
private individuals under the guarantee of confidentiality provided for in
Article 30 of the Guatemalan Constitution.
The following documents, covering the period of the crime in 1990
forward, were not provided: the requested portion of the daily journal of activities of
the EMP, general orders of the Army, the organizational chart of the EMP, the
names of the various departments of the EMP and the persons which head them.
These documents would likely have allowed the courts to try all of the
persons suspected of involvement in Myrna Mack's death in one proceeding if they
had been provided during the first criminal proceeding brought against Beteta.
In the second proceeding, the documents would be used by the accusation
team to prove that Noél Beteta Alvarez had received a medical release and
worked as an employee of the EMP when he murdered Myrna Mack, that he acted
under the orders of higher level officials of the EMP and that other employees
of the EMP were involved in the murder in some manner.
Some of the information which was provided by the military consisted of
documents which the military had alleged did not exist during the first
proceeding. These documents were
provided for the first time in the second proceeding and have now been presented
as evidence calling into question the guilt of Beteta, even though Beteta has
already been convicted and has no more available appeals.
At this time, the second criminal proceeding is in the investigative
stage before a military tribunal.
OF THE PARTIES ON THE ISSUE OF THE
ADMISSIBILITY OF THE PETITION
The position of the Government
The Government has argued that domestic remedies have not been exhausted.
The Government, invoking Articles 46(1) and 47 of the American Convention
on Human Rights (the "Convention"), has asked the Commission to
declare the complaint inadmissible.
The position of the petitioners
The petitioners have argued that they denounced to state judicial and
human rights institutions on numerous occasions the irregularities committed in
the investigation carried out by the Guatemalan police.
They noted that they have complained of the negligence of the police
which prevented the proper conservation of the evidence found at the scene of
the crime, which evidence would have been crucial to the identification of all
persons responsible for the murder of Myrna Mack and other circumstances
surrounding the murder.
The petitioners also allege that they utilized all of the remedies
provided for in Guatemalan law in an attempt to obtain the necessary evidence to
process all the persons responsible for the murder of Myrna Mack, including
information about the names and activities of the employees of the EMP.
The petitioners point out that each of these requests for information was
rejected by the judicial authorities and the Government without adequate legal
justification. The petitioners
additionally allege that only a portion of the information which was finally
ordered to be produced by the Court of Appeals has actually been produced. The petitioners assert that this failure to produce evidence
prejudices the ability of Helen Mack to obtain access to domestic remedies to
process all persons against whom there exist indicia of culpability.
The petitioners allege that, although a second proceeding has been opened
to investigate the other persons responsible for the murder of Myrna Mack, this
proceeding remains in its preliminary stage and no important progress has been
According to the petitioners, the circumstances of this case indicate
that they have not had effective access to domestic remedies in their efforts to
insure that all persons responsible for the death of Myrna Mack are properly
tried. They argue that five years
have passed since the first domestic proceedings were initiated and still no
effective results have been obtained. They
allege finally that this time lapse constitutes an unjustifiable delay in the
domestic proceedings intended to judge the persons responsible for this crime of
The petition fulfills the formal requirements of admissibility contained
in Article 46(1)(d), and the same is not manifestly groundless or obviously out
The Commission may consider the present case, because the petition
alleges violations of human rights which are delineated in Articles 1(1), 4, 8
and 25 of the American Convention on Human Rights.
The present case is within the competence of the Commission, pursuant to
Article 44 of the Convention.
In accordance with Articles 46(c) and 47(d) of the Convention, the
Commission has confirmed that the petition does not substantially reproduce a
petition already studied by the Commission nor is the petition pending in any
other international proceeding.
The requirement of Article 46(b) of the Convention, which establishes
that a petition should be filed within a period of six months from the date on
which the final judgment in the case was issued, does not apply in this case,
because there still has not been issued a definitive judgment in the case.
Applying Article 37(2) of the Regulations of the Commission, relating to
exhaustion of domestic remedies, read in conjunction with Article 38(2) of the
Regulations, the petition was presented within a reasonable period of time.
Nor has the Government of Guatemala alleged the failure to comply with
Exhaustion of domestic remedies
Pursuant to Article 46(2) of the American Convention, the requirement of
exhaustion of domestic remedies found in Article 46(1)(a) is not applicable in
this case. Article 46(1)(a) specifies that admission of a petition
requires that "remedies under domestic law have been pursued and exhausted
in accordance with generally recognized principles of international law."
However, pursuant to Article 46(2)(b), exhaustion is not required where
"the party alleging violations of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting them."
Pursuant to Article 46(2)(c), the requirement of exhaustion does not
apply where "there has been unwarranted delay in rendering a final
judgment." In addition, the
Inter-American Court of Human Rights in relation to the exceptions to the
requirement of exhaustion of domestic remedies has held that, "[t]he rule
of prior exhaustion must never lead to a halt or delay that would render
international action in support of the defenseless victim ineffective."
(I/A C.H.R., Velásquez Rodríguez Case, Preliminary Objections, Sentence
of June 26, 1987. Series C, No. 1,
para. 93). The nature and
circumstances of the investigations and domestic criminal proceedings which have
taken place in the instant case, as described above, make clear that the
provisions of Article 46(2)(b) and (c) excuse exhaustion.
The Commission has determined that although Helen Mack, one of the
petitioners in this case before the Commission and family member of Myrna Mack,
has had formal access to the domestic remedies, she has not had effective and
real access to those domestic remedies. She
has not been able to obtain a trial of all persons against whom there exist
serious indicia of participation in the murder of Myrna Mack, as determined by
the organisms of the State of Guatemala including the Supreme Court.
Helen Mack engaged in repeated efforts to insure that all persons
responsible for her sister's death were tried in a single proceeding.
However, she could not achieve that result, because some Government
agents did not properly carry out the investigation of the case and others
refused to provide the evidence necessary to carry out such a trial.
In addition, the Guatemalan Courts refused to provide for the
simultaneous processing of all persons responsible for the murder. As a result, it became necessary to begin a second criminal
proceeding to process the persons who had not been tried in the first
proceeding. In this second
proceeding, the private accuser Helen Mack has again been denied access to the
evidence which would allow her to support her accusation against all of the
persons responsible for the death of her sister.
The absence of certain witnesses whose testimony would have provided
greater elements of proof to assist in clarifying the responsibility of all of
the defendants also limits the accusation in this second proceeding and
prejudices its result.
The investigation carried out by the Guatemalan police in the Myrna Mack
case suffered from clear deficiencies in the protection and gathering of the
evidence which would tend to clarify the crime and the identity of those
responsible. The evidence which the
police failed to properly gather and protect would have clarified the
participation of persons other than Beteta within the first judicial proceeding
and would have been of use in properly trying those other defendants in the
The private accuser constantly appealed to governmental and judicial
authorities to obtain access to the relevant evidence, basing her requests on
Guatemalan law and filing every appropriate remedy to obtain the documentary and
other evidence in possession of officials of the EMP and the Army.
However, her requests for evidence were rejected on formalistic grounds.
The judicial authorities did not provide adequate legal grounding for the
denials. Even after the Court of
Appeals finally ordered that the requested evidence be produced, the Government
again refused to provide certain evidence.
In addition, at this late date, the testimony of at least five witnesses
considered by the petitioners to be vitally important can no longer be
effectively utilized in the case. Some
of the witnesses have left the country and others refuse to ratify testimony
that they previously gave. The
evidence necessary to properly pursue this case against all of the persons named
by the Guatemalan authorities as responsible for the crime is simply not
available any longer.
The Commission also finds that there has been an unwarranted delay in the
domestic proceeding. Only four
years after Myrna Mack's death did the Guatemalan Supreme Court finally order
that a criminal case be opened against all of the suspected intellectual authors
of the murder and the material authors who worked with Beteta in the commission
of the crime. Two more years have
passed and this new proceeding remains in the investigative stage.
There is no indication that the proceeding will move forward or that the
facts of the murder will be clarified. On
the contrary, the manner in which the previous proceeding developed creates a
reasonable expectation that this proceeding will not achieve any affirmative
result. In conclusion, almost six
years have lapsed since the murder of Myrna Mack, and the State of Guatemala
still has not issued a final decision in the case relating to her death and
there exists no indication that such a decision is forthcoming in the near
The requirement of prior exhaustion of domestic remedies allows the State
to resolve a case through the legal means available within the jurisdiction of
that country before being brought before an international forum.
However, the mere fact that domestic proceedings continue cannot imply
that the Commission may not take jurisdiction of case.
Such a rule would permit a State to carry out inefficient and ineffective
investigations and domestic judicial proceedings, prolonging those proceedings
unreasonably with the objective of avoiding the intervention of the
inter-American system. When there
has not existed effective access to remedies and there has been a delay in the
application of justice, the requirement of previous exhaustion of domestic
remedies cannot prevent a case of alleged human rights violations from being
heard by an international forum such as the Commission.
Based on the foregoing arguments, the Commission concludes that the
requirement of exhaustion of domestic remedies does not apply in the present
case. The petitioners have
demonstrated that effective access to domestic remedies was denied and that an
unwarranted delay in the application of justice has resulted considering the
time which has lapsed since the commission of the crime.
Therefore, applying the exceptions to the requirement of exhaustion of
domestic remedies established in Article 46(2)(b) and (c) of the Convention, the
Commission declares the present case admissible.
THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS,
To declare admissible, in accordance with Articles 46, 47 and 48 of the
Convention, the petition presented in the present case number 10.636.
To send this report on admissibility to the Government of Guatemala and
to the petitioners.
To publish this report in the Annual Report of the Commission.
To continue with the consideration of the merits of the case.
 The petitioners sent information on the following dates:
September 11, 1990, January 3, 1991, February 8, 1991, May 30, 1991,
October 29, 1991, January 15, 1992, March 12, 1992, January 28, 1993,
February, 1993, August, 1993, February 9, 1995, April, 1995, November, 1995,
December 21, 1995.