Guatemala 10.526

REPORT Nº 31/96
CASE 10.526

GUATEMALA

October 16, 1996

1. Petitioner Dianna Ortiz, a United States citizen and Catholic nun of the Ursuline order, alleges that she was kidnapped, brought to a clandestine detention center, and tortured in Guatemala by agents of the Guatemalan Government in November of 1989. She alleges violations of various articles of the American Convention on Human Rights (the "Convention"). Based on the information submitted and its investigation and analysis in the case, the Inter-American Commission on Human Rights (the "Commission") finds that the Guatemalan Government has violated Articles 1, 5, 7, 8, 11, 12, 16 and 25 of the Convention.

I. BACKGROUND

2. The allegations of fact in this case are contained in the statements of Sister Ortiz. The alleged facts are described below followed by a brief description of the processing of Sister Ortiz's case before the Commission. The Commission's analysis of the admissibility and merits of the case are found in Section II.

A. The Allegations of Fact Contained in Dianna Ortiz's Statements

3. On April 18, 1990, the Commission opened case No. 10.526, based upon the statements of petitioner Dianna Ortiz alleging that she was abducted and tortured by agents of the Guatemalan Government. According to Sister Ortiz's statements, she first went to Guatemala in September of 1987 to join several other nuns who had already been in Guatemala for approximately one year, working with the indigenous population in San Miguel Acatan and other small villages throughout the department of Huehuetenango.

4. In late 1988, the Bishop of Huehuetenango received an anonymous typewritten document accusing Sister Ortiz and the other nuns in San Miguel of planning to meet with "subversives." In early 1989, Sister Ortiz began to receive anonymous written threats directly. She received three threatening letters between January and March of 1989. One of the letters was slipped under her door, one was sent through the mail, and one was left under the windshield wiper of her vehicle. Two of the letters were addressed to "Madre Diana." The letters warned that she was in danger and should leave the country.

5. In July of 1989, Sister Ortiz went to Guatemala City to study Spanish. During the month that Sister Ortiz was attending language school in Guatemala, there was a teacher's strike in Guatemala. On one occasion, as Sister Ortiz walked to school near the main plaza where demonstrations were being held in front of the Government Palace, she saw people that she knew and stopped to talk with them. Several days later, she was accosted by an unknown man on the street near the home where she was staying. The man said, "We know who you are. You're working in Huehuetenango." The man told Sister Ortiz to leave the country.

6. After this occurrence, Sister Ortiz left Guatemala for an unscheduled vacation on July 15, 1989. She returned to Guatemala on September 18, 1989. On October 13, 1989, while in Guatemala City, Sister Ortiz received another death threat in the form of a letter dropped in the mail slot of the house where she was staying. It consisted of words that had been pasted together from letters cut from magazines and newspapers. The letter said, "Eliminate Diana. Raped. Disappeared. Assassinated. Decapitated. Leave the country." After receiving the letter, Sister Ortiz returned to San Miguel. On October 17, 1989, Sister Ortiz received another letter in San Miguel, which said, "It is dangerous for you to stay here, the army knows you are here. Leave the country." Sister Ortiz decided to seek refuge at the Posada de Belen, a religious center in Antigua.

7. According to Sister Ortiz's statements, she was kidnapped from the gardens of the Posada de Belen on November 2, 1989. Another threatening letter was sent to the Posada de Belen before she arrived, but she never received that letter.

8. Sister Ortiz's narrative of the facts indicates that on November 2, she asked a caretaker to unlock the door to the enclosed gardens. She was in the gardens alone for about ten minutes when she felt a man put his hand on her shoulder. The man said, "Hello my love," and Sister Ortiz recognized the voice as belonging to the man who had accosted her on the street four months previously. Sister Ortiz tried to back away from him but he grabbed her arm. Sister Ortiz realized that there were two men in the gardens. The first man, whom she recognized and who seemed to be in charge, insisted that Sister Ortiz accompany the two men. There was a struggle, and then the first man reached inside his jacket and showed her a gun.

9. The two men forced Sister Ortiz to walk with them to the back of the gardens at the Posada de Belen where there was an opening in the wall surrounding the gardens. The two men and Sister Ortiz walked out of the gardens and along a dry river bed until they came to the street leading out of Antigua.

10. The two men then forced Sister Ortiz to climb aboard a public bus. The first man showed Sister Ortiz a grenade in the pocket of his jacket and warned that if she tried to escape, innocent people would die. Sister Ortiz and the two men exited the bus near a sign for Mixco, a town outside of Guatemala City.

11. According to Sister Ortiz's statements, they walked down a dirt road until they came to a white National Police patrol car. The first man went ahead and talked with the driver, a uniformed National Policeman. Sister Ortiz was then blindfolded and placed in the backseat of the patrol car. The two men also got into the car. The Policemen said to the men, "I see that your trip was successful."

12. Sister Ortiz was driven in the police car and was then taken out of the car and moved into a warehouse-like building. Sister Ortiz could hear a woman's screams and the moans of a man. Sister Ortiz was ushered into a room where she was seated on a chair. The policemen and the two men who had kidnapped her left the room. After hours had passed, the second man who had come to the gardens to kidnap her entered the room and blindfolded her again. Two more men entered the room, and Sister Ortiz recognized the voices as belonging to the policeman and the first man who had taken her from the gardens. According to Sister Ortiz's statements, the men removed some of her clothes and started to touch her body.

13. Then the man that had first accosted her in Guatemala said, "We will get to that later, we have to take care of business first." He said that they were going to play a game. If she gave an answer that they liked, he said that they would let her smoke; if they did not like the answer, they would burn her with a cigarette.

14. The men asked Sister Ortiz her name, where she lived, what work she was involved in, and if she knew any subversives. With every answer, regardless of what she said, they burned her with a cigarette. They asked the same questions again and again and burned her again and again.

15. At some point, they stopped the interrogation and removed Sister Ortiz's blindfold. They showed her some pictures of herself taken in various parts of the country. The men also showed Sister Ortiz pictures of indigenous people. In one picture, a man was holding a gun and, in another one, a woman with long black hair had a gun. They insisted that Sister Ortiz was the indigenous woman in the picture and said that the indigenous people were subversives.

16. One of the men then blindfolded Sister Ortiz again, and somebody hit her in the face so hard that she fell to the floor. Two of them pulled her up to a sitting position and took off the rest of her clothes. According to Sister Ortiz's statements, the men began to abuse Sister Ortiz sexually and raped her repeatedly. Sister Ortiz was told that they would stop if she gave them the names of the people in the photographs and the names of her contacts. Sister Ortiz passed out.

17. According to Sister Ortiz's statements, at one point she regained consciousness and realized that her wrists had been tied to something overhead. She felt that she was in a courtyard of some type. The uniformed policeman asked again about the people in the photographs and raped her. Then Sister Ortiz heard people moving a heavy block on the ground. She was lowered into a pit which was filled with bodies and rats. Sister Ortiz passed out again. She woke up on the ground, and the men were again abusing her sexually.

18. Later, Sister Ortiz was taken back into the room and questioned again. Her captors held her down on the ground and began to rape her again. Then somebody said, "Alejandro, come and have some fun." A man who had just entered answered with an expletive in English. Then he switched to Spanish and told the men that Sister Ortiz was an American and that they should leave her alone. He announced that her story was already being covered in the news. He told the men to leave the room and helped Sister Ortiz to put on her clothes.

19. "Alejandro" took Sister Ortiz out of the building and drove her out of an attached garage. As they left, he repeatedly apologized and said that it had all been a mistake. He said that they had confused her with somebody else. He also said that they had tried to prevent this with the letters. Although "Alejandro" continued to speak in Spanish, he understood Sister Ortiz when she spoke in English, and he spoke Spanish with a Northamerican accent. In Sister Ortiz's statements, she indicates that she believes that this man was from the United States.

20. When the car in which Sister Ortiz and "Alejandro" were driving stopped for traffic, Sister Ortiz saw signs indicating that she was in zone 5 of Guatemala City. She jumped out of the car and fled.

21. She ran until a woman offered to take her into her home. She stayed there for several hours and then found her way to Hayter Travel Agency in Zone 1 of the city. She contacted members of her religious community who came to retrieve her. She left Guatemala for the United States within 48 hours of her escape.

B. Processing before the Commission

22. On April 18, 1990, in conformity with Article 34 of the Commission's Regulations, the Commission sent the Government of Guatemala the pertinent parts of a statement signed by Sister Ortiz dated January 3, 1990 and several press releases which had been sent to the Commission. Since that time, the Commission has received numerous communications in this case from the attorneys for the Government and the petitioner, Sister Dianna Ortiz.[1] In addition, a hearing was held before the Commission on February 3, 1995.

23. The communications of the Government were accompanied by Government reports, newspaper clippings, press releases and other documents which provided updates relating to the investigation and processing of Sister Ortiz's case before the Guatemalan courts. The Government argued, beginning with its response of April 30, 1990, that domestic resources had not been exhausted in the case, as required by Article 47(a) of the Convention. The Government also argued that the criminal acts of which Sister Ortiz complained had not been proven, much less the identity of persons responsible for those acts. The Government additionally asserted that Sister Ortiz had frustrated the domestic proceedings by failing to cooperate with the investigation and processing of the case in Guatemala.

24. The petitioner's attorneys submitted a significant volume of documentary evidence, including affidavits, records from the courts of Guatemala, newspaper clippings, etc..., in support of the petitioner's accusations. The petitioner's attorneys also argued that an exception to the requirement of exhaustion of domestic remedies applied in this case. Additionally, they provided updates about the domestic proceedings and asserted that Sister Ortiz had offered assistance to the appropriate authorities.

25. On October 23, 1995, the Commission sent a letter to the Government of Guatemala requesting that the Government provide to the Commission copies of witness testimony, police reports and other information related to the domestic case. The Government responded on November 27, 1995, indicating that the information had been requested from the Public Ministry and that the agency would make a decision on the Commission's request.

II. ANALYSIS

26. The Commission's analysis of this case begins with its determination that the case is admissible. The discussion of the question of admissibility is followed by the Commission's conclusions on the merits of the case.

A. Admissibility

27. The complaint fulfills the formal admissibility requirements contained in the American Convention on Human Rights and the Commission's Regulations. In accordance with Article 47(b) of the Convention, the Commission is competent to examine this case as it alleges facts tending to establish a violation of rights and freedoms protected by the American Convention on Human Rights. In accordance with the requirements of Convention Articles 46(c) and 47(d) respectively, the subject of the petition is not pending settlement in another international proceeding, nor does it duplicate a petition previously examined by the Commission.

28. In accordance with Article 48(1)(f) of the Convention, the Commission, in a letter to the parties dated February 7, 1995, offered to place itself at their disposal for the purposes of arriving at a friendly settlement. On February 17, 1995, Sister Ortiz's attorney indicated that Sister Ortiz was willing to participate in a friendly settlement discussion. On March 27, 1995, the Government of Guatemala communicated to the Commission its decision not to engage in friendly settlement discussions in this case.

29. 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." The provisions of Article 46(2)(b) and (c) excuse exhaustion in the instant case, since Sister Ortiz has insistently pursued remediation through domestic mechanisms and has not achieved any results nor any decision in her domestic case, although six years have passed since the appropriate domestic judicial proceeding was initiated.

30. On November 2, 1989, Darleen Chmielewski informed the National Police in Antigua, Guatemala that Sister Ortiz had disappeared. On November 4, 1989, a criminal proceeding was initiated before the Justice of the Peace of the Department of Sacatepéquez. Six years later, it is clear that there has been an unjustifiable and unreasonable delay in the resolution of the case. Sister Ortiz's efforts to pursue the case through judicial channels, as well as through diplomatic and political channels, have not achieved success. The case remains in its initial investigative period ("fase sumarial"). Neither the courts nor the prosecution in Guatemala have ever initiated proceedings against any suspect or ordered the arrest of any individual in relation to the case; no one has ever been tried in connection with this case.

31. Despite the fact that Sister Ortiz left Guatemala and fled to the United States soon after she was released by her captors, she has made numerous efforts to advance the domestic case and to provide information and assistance to the Guatemalan Government in the investigation of the case. Sister Ortiz's efforts have consistently met with resistance from the Government and have often been countered with criticisms of Sister Ortiz by Government officials. As a result, Sister Ortiz has been denied effective access to the appropriate domestic remedies and has been unable to exhaust those remedies. The Government's assertion, in its report of March 27, 1995 ("March 27 Report"), that domestic resources had not been exhausted because Dianna Ortiz had not returned to Guatemala to assist in the investigation of the case is not supported by the record. The record shows that, despite Sister Ortiz's efforts, the domestic case has not moved forward.

32. As early as November 7, 1989, the Guatemalan press reported that Sister Ortiz had issued a declaration describing the facts of her kidnapping, torture and eventual release. However, Government officials stated to the press that they would not rely upon the statement made by Sister Ortiz in their investigation of the case, because the statement might have been prepared by persons other than Sister Ortiz who wished to embarrass the country of Guatemala.[2]

33. On February 1, 1990, the Supreme Court of Guatemala directed letters rogatory, to be answered by Sister Ortiz in the United States, to the Guatemalan Minister of Foreign Affairs for the appropriate diplomatic processing. Sister Ortiz did not receive the letters rogatory until February of 1991 because of diplomatic delays.

However, she answered the letters rogatory immediately when received, providing a statement and offering evidence relevant to the case.[3]

34. In March of 1990, General Carlos Morales Villatoro, then Minister of the Interior, officially closed the Government's investigation, declaring that the case involved a "self-kidnapping." At this date, the letters rogatory had only been recently issued by the Guatemalan Supreme Court. Yet, the Government chose to close the case without awaiting the results of the only effort to obtain an official statement from Sister Ortiz. The case was reactivated only after international delegations organized by the Ursuline Sisters met with then President Vinicio Cerezo Arévalo and demanded further action in the case.[4]

35. At the request of Sister Ortiz, the Ursuline Sisters and other members of the international community, President Cerezo named a special commission to investigate Sister Ortiz's case in June of 1990.[5] After assuming office, President Jorge Serrano Elias dissolved the commission in April, 1991.[6] There is no indication that the commission ever met or engaged in any investigations during the time of its existence despite insistent efforts by Sister Ortiz's lawyers and others to mobilize that body.[7]

36. According to the record, in December of 1990, Sister Ortiz's lawyer extended an invitation to the Office of the Human Rights Ombudsman of Guatemala to interview Sister Ortiz in the United States. The invitation was declined. Nevertheless, in October of 1991, officials from the Office of the Human Rights Ombudsman did interview Sister Ortiz in the United States. Afterwards, they prepared a report which indicated that the interview had not been satisfactory because of the nervousness of Sister Ortiz in the interview and the special arrangements that had to be made to accommodate her.[8] These criticisms were made by the Ombudsman's office despite the fact that it is understandable for an alleged victim of interrogation by torture to require some accommodation in approaching an interview of this nature and the fact that Sister Ortiz was able to provide significant new details in the interview.[9]

37. In July of 1991, the Government announced the appointment of a special independent prosecutor for the case, Fernando Linares Beltranena, and a private investigator, Carl West.[10] A series of letters between Sister Ortiz's attorney and Special Prosecutor Linares in late 1991 indicates that Special Prosecutor Linares was invited on numerous occasions to interview Sister Ortiz, yet the prosecutor failed to take this basic investigatory step. The prosecutor insisted that Sister Ortiz meet with West, but that interview also never materialized even after Sister Ortiz agreed, despite her misgivings, to meet with West without the presence of Special Prosecutor Linares.[11]

38. In April of 1992, Sister Ortiz travelled to Guatemala to provide a statement to the courts and to participate in the investigation of the case. On April 7, 1992, Sister Ortiz testified before Judge Leticia Stella Secaira Pinto of the Fifth Court of Instruction for Criminal Cases for approximately 12 hours.[12] The following day, Captain Yon Rivera, spokesman for the Guatemalan military, announced in the press that Sister Ortiz's activities in pursuing her case "could result in some sort of defamation charges."[13]

39. During her time in Guatemala, Sister Ortiz again expressed her willingness to meet with investigator West if a tape recording of the interview would be allowed or if a witness from the U.S. Congressional Task Force was allowed to be present.[14] Special Prosecutor Linares and West refused to allow such an interview.

40. Sister Ortiz has since returned to Guatemala three more times to push for the investigation of her case and to participate in domestic judicial proceedings, in March 1993, January 1994 and November 1994. During her trips to Guatemala, Sister Ortiz answered questions presented by the prosecutor, provided detailed descriptions of the persons involved in the commission of the crimes against her for the elaboration of electronic sketches and participated in several judicial recognition proceedings. In one of those proceedings, she was able to recognize the Antigua Escuela Politécnica, a military facility, as the place in which she was detained.[15]

41. Dianna Ortiz has also continued to pressure various Guatemalan officials to resolve her case. In November of 1994, she met with the Prosecutor General for Guatemala, Ramsés Cuestas Gómez. Mr. Cuestas promised to provide her with periodic reports about the status of her case. He has failed to keep Sister Ortiz updated as promised despite Sister Ortiz's efforts to obtain reports from him.[16]

42. Soon after the case was opened and before any significant investigation could have occurred, officials of the Guatemalan Government began to declare that Sister Ortiz's allegations were false or that no Government agents had been involved. On November 9 and 10 of 1989, the press announced that President Cerezo had declared that he found it difficult to believe Sister Ortiz's story and that, if the kidnapping had occurred, it had not been the responsibility of government forces.[17] On November 12, 1989, the spokesperson for the National Police, Guillermo Mollinedo, announced that the National Police had not been involved in any kidnapping of Sister Ortiz.[18] The National Police described Sister Ortiz's attempts to obtain justice as an attempt to embarrass the country and as a political maneuver implemented in an effort to obtain financing for her activities.[19]

43. In November 1989 and January 1990, General Alejandro Gramajo, then Minister of Defense, made several statements to the effect that Sister Ortiz's injuries did not occur or were self-inflicted. The first statement was made to a delegation of religious representatives, the second to Americas Watch. General Gramajo also stated that Sister Ortiz had invented her story to cover up her involvement in a "lesbian tryst." He suggested that her facial injuries resulted from a love affair. General Gramajo formally retracted these statements, admitting that the investigations in the case had not uncovered information which would support his claims.[20] However, he has continued to make similar statements.[21]

44. Other officials of the Government have also continued to make derogatory statements against Sister Ortiz in reprisal for her diligence in pursuing her case. In January of 1994, a spokesperson for the Army, Edith Vargas de Marroquín stated that Sister Ortiz suffered mental problems and from the vice of telling untruths.[22] These statements were made immediately after Sister Ortiz recognized the military installation where she alleged she had been detained. In November of 1994, another spokesman for the Army, Maurice DeLeon accused Sister Ortiz on television and in the press of being the principal spokesman for the rebel forces in Guatemala.[23]

45. It follows, therefore, from the foregoing that Sister Ortiz's efforts to pursue a domestic resolution of her case have been thwarted from the beginning. The Government blocked Sister Ortiz's efforts to push the case forward and attacked her personally to prevent her from accessing domestic remedies. The Government cannot assert that domestic remedies exist, simply because the case remains formally open long after it should have been resolved.

46. Article 46(b) of the American Convention, requiring that a petition be submitted within six months of the final decision in the domestic case, does not apply in this case, because exhaustion of domestic remedies has been excused. Pursuant to Article 38(2) of the Commission's Regulations, the Commission finds that, considering the circumstances of this case, the petition was presented "within a reasonable period of time . . . as from the date on which the alleged violation of rights has occurred." The petition was processed by the Commission on April 18, 1990, only four months after the violations of the Convention allegedly occurred. The petition was also filed one month after the Government announced its initial decision to close the case. The Commission was thus asked to exercise jurisdiction within a short period of time after the Government had initially indicated by its actions in the case that exhaustion of domestic remedies would be frustrated.

B. Merits

47. The Commission finds that Sister Ortiz was placed under surveillance and threatened, then kidnapped and tortured. The analysis of the evidence which leads the Commission to this conclusion is followed by a separate discussion of the Commission's additional finding that agents of the Government of Guatemala were responsible for these crimes against Sister Ortiz. After the discussion of its findings regarding the underlying violations in the case, the Commission expounds its findings of fact relating to the processing of Sister Ortiz's case in the domestic legal system of Guatemala. Finally, this report of the Commission applies the law of the American Convention to the facts of this case as established by the Commission.

1. Findings of Fact

a. The Commission's Finding that the Underlying Violations Did Occur

48. The Commission finds that Sister Ortiz was placed under surveillance as she conducted her work in Guatemala and that she received threats. Petitioner Ortiz has submitted copies of several of the threat letters that she received. According to uncontradicted statements made by Sister Ortiz, these letters reached her in various cities throughout Guatemala, demonstrating that she was being observed in a comprehensive and systemic manner over a period of time. According to Sister Ortiz's statements, she was also accosted on the street in Guatemala City by a man who threatened her. The Government has not provided any evidence contradicting this claim. In its response dated February 15, 1995 ("February 15 Response") and in its report of May 15, 1995 ("May 15 Report"), the Government points out that no complaint regarding the threats Sister Ortiz received was ever filed with the National Police or the courts in Guatemala. However, that fact does not serve to prove that Sister Ortiz did not receive threats, particularly when copies of written threat letters are found in the record.

49. The Commission also finds that Sister Dianna Ortiz was kidnapped and tortured in Guatemala in early November of 1989. The Commission has analyzed the detailed written and oral statements Sister Ortiz has made about the kidnapping and torture. The Commission finds that Sister Ortiz is a credible witness and that her consistent statements support a finding that she was kidnapped and taken to a clandestine detention center where she was tortured. Sister Ortiz's statements are supported by her ability to confirm her story through judicial proceedings. For example, in the judicial reconstruction which took place on March 24, 1993, Sister Ortiz was able to recognize portions of the route that she and "Alejandro" took when they drove out of her place of detention. She was able to point out signs and landmarks which she recognized, some of which she had mentioned previously in statements made in the United States. For example, in her interview with the Office of the Human Rights Ombudsman, Sister Ortiz mentioned that she believed she had seen a Banco de Guatemala sign during her drive with "Alejandro."[24] In the March 24, 1993 judicial recognition proceeding, she identified the Banco de Guatemala sign she had previously mentioned.[25]

50. Also, immediately after she reappeared, Sister Ortiz was examined by Doctor David Alcare in Guatemala. Dr. Alcare observed injuries on Sister Ortiz's back, noting that Sister Ortiz's back showed numerous symmetrical injuries from the waist to the shoulder. He found that the injuries were first or second degree burns which had been inflicted during the preceding 24 hours.[26] After Sister Ortiz fled to the United States, Dr. G.R. Gutierrez, M.D. examined her on November 8, 1989 and found that she had 111 second degree circular burns on her back and two abrasions on her left cheek.[27]

51. In its February 15 Response and May 15 Report, the Government asserted that Sister Ortiz did not seek the services of a physician after escaping from detention. These assertions are contradicted by the record, showing that she was examined by two physicians after her escape.

52. Sister Ortiz's claims of torture are also supported by a statement from the United States Ambassador to Guatemala in 1989, Thomas F. Stroock. Ambassador Stroock saw Sister Ortiz in Guatemala immediately after she reappeared. He later provided a letter which indicated that he had seen through his "own personal observation, that [Sister Ortiz] was seriously beaten and mistreated."[28]

53. The Commission considers it to be highly probable that Sister Ortiz was also raped by her captors during her time of detention. Sister Ortiz's statements provide significant evidence that she was raped, and a rape would be consistent with the physical evidence indicating that she was brutally tortured. However, based on its careful review of the record, the Commission cannot confirm the charge of rape with certainty.[29] The Commission believes it sufficient to find that Sister Ortiz was subjected to torture. Any sexual violence or abuse which occurred would have been a part of that torture.

54. The Government has conceded in documents prepared by its agents that Sister Ortiz was captured and tortured, even as it has asserted that the responsibility for those facts remains unknown. The Valdez Gutiérrez Report indicates that after National Police investigated the case, it "was established" that Sister Ortiz was kidnapped and tortured.[30] In a letter to the Supreme Court of Guatemala, the judge with responsibility for the case, Irma Leticia Lam Nakakawa de Rojas, indicated that the important elements to be clarified were the site of Sister Ortiz's detention and the identity of those responsible for the crimes.[31] The judge treated as established the occurrence of the crimes alleged.

55. However, in its February 15 Response, the Government argued that the facts of which Sister Ortiz complained had not been proven, much less the responsibility for those acts. The Government continued to proffer arguments in support of its theory that the kidnapping and torture had not been proven in its May 15 Report. The Government's arguments are not convincing in light of the serious documentary, medical and testimonial evidence supporting Sister Ortiz's claims.

56. In support of its claim that the facts regarding the kidnapping and torture of Sister Ortiz have not been proven, the Government points to the fact that two witnesses allegedly saw Sister Ortiz leaving the Posada de Belen alone on November 2, 1989. The statements of these two witnesses are not in the record of this case before the Commission. The Government communications which discuss the statements refer to police reports which contain the statements. These police reports, referenced in the Government's communications have not been produced.[32] The police reports in the possession of the Commission which refer to the statements of the witnesses describe statements by the witnesses which are less detailed than those described in the Government's communications.[33] The information about the statements included in the Government's communications must therefore be viewed with caution. The Government's reports repeat the findings of police reports, not available to the Commission, which in turn repeat secondhand the testimony of witnesses.

57. The testimony of these witnesses, if accepted, would serve to support the Government's theory that a "self-kidnapping" or staged kidnapping occurred. However, that theory is not consistent with the medical evidence which indicates that Sister Ortiz suffered significant injuries, including 111 burns on her back.

58. The Commission does not assign full weight to the statements made by these two witnesses for additional reasons. One of the witnesses, Jose Dieguez Castaneda, allegedly made a statement in which he indicated that he worked in the Posada de Belen and had been requested by Sister Ortiz to open the gates to the garden there for her. He stated that he saw her walking to the back of the garden, searching for a way out onto the street.

59. Mr. Dieguez's statement and Sister Ortiz's statements coincide in establishing that Mr. Dieguez opened the gate for Sister Ortiz and that she walked back into the garden. However, all descriptions of the garden indicate that it covered a large area. Although Mr. Dieguez may have seen Sister Ortiz walk towards the back of the garden, there is no indication that he could see the back of the garden, and it would be conjecture on his part to assert that she must have been searching for a way out onto the street. The Government also notes that Mr. Dieguez asserted that he saw no strange persons waiting in the garden. However, Sister Ortiz's statements indicate that she sat alone in the garden listening to music for about ten minutes before she was approached by the two men who kidnapped her. According to her statements, no strange men would have been visible when the gate was opened and she entered the garden.

60. Also, the statements made by Mr. Dieguez are placed in question by the fact that there is no record of any further statements by him other than those made in November, 1989 and described by the National Police. There is no record of Mr. Dieguez testifying under oath or before any tribunal, although the Valdez Gutiérrez Report indicates that the prosecutor working with the case in 1989 requested that he be summoned to testify. Nor was Investigator West able to find the witness when he attempted to do so in October of 1991.

61. The Commission notes various inconsistencies in the descriptions provided by the other witness, Carlos Astún Asturias. According to the information in the record before the Commission, Carlos Astún Asturias provided several descriptions of Sister Ortiz and the clothing she was wearing on November 2 which varied in the details.[34] However, Mr. Astún Asturias does not mention in any of the descriptions that Sister Ortiz was wearing a blue sweatshirt. According to Sister Ortiz's statements, she was wearing a bright blue sweatshirt when she was kidnapped. According to the West Report, the employees of Hayter Travel Agency confirmed that she was wearing a sweatshirt when she appeared at their offices after escaping detention. Thus, the description provided by Mr. Astún Asturias does not coincide with the clothing that Sister Ortiz was wearing when she was kidnapped and when she reappeared.

62. The description provided by Mr. Astún Asturias does coincide with the description provided by Sister Darleen Chmielewski to the National Police immediately after Sister Ortiz's disappearance.[35] In Sister Chmielewski's description, there is no mention of a sweatshirt, presumably because Sister Chmielewski did not know that Sister Ortiz had put on a sweatshirt after she was last seen by Sister Chmielewski. The National Police first obtained a statement from Mr. Astún Asturias before Sister Ortiz reappeared, on the same day that Sister Chmielewski provided a description of Sister Ortiz to the Police, including the clothes she believed Sister Ortiz was wearing. The obvious inference is that Mr. Astún Asturias was briefed by the Police before making his statement.

63. Also, the National Police reported to the Guatemalan press that Astún Asturias had described Sister Ortiz as wearing a canvas vest ("chaleco de lona").[36] There is no indication in any other description that Sister Ortiz was wearing such a vest on the day of her kidnapping. The description provided to the Police by Sister Chmielewski indicated that Sister Ortiz was using a wool shawl ("chal de lana").[37] Again, the testimony of Mr. Astún Asturias, when reviewed in Spanish, more closely coincides with the description of Sister Ortiz in possession of the Police than with the actual clothing that Sister Ortiz was wearing. The Commission finds that the statements of Mr. Astún Asturias were formed by the description given by Sister Chmielewski to the Police rather than by the memory of an event that he witnessed.

64. In addition, according to the Valdez Gutiérrez Report, Mr. Astún Asturias was summoned to testify in 1989 but did not appear. The Police were not able to locate the witness. According to the West Report, various persons indicated that Mr. Astún Asturias was a vagabond. Investigator West was not able to locate Mr. Astún Asturias to interview him when he sought to do so in October, 1991. In its February 15 Response, the Government indicated that Astún Asturias did appear for a judicial reconstruction proceeding on April 8, 1992. However, the record of that proceeding has not been produced before the Commission.[38]

65. To support its argument that the facts of the kidnapping and torture are not proven, the Government argues in its February 15 Response that Sister Ortiz's statements demonstrate that there was no violence or use of force in the alleged kidnapping. The Government thus questions the fact that certain personal effects were later found in the garden. In the Guatemalan press, the Government suggested that the items which were later found were intentionally placed in the garden to provide greater realism to the story of the kidnapping.[39] In its May 15, 1995 Report, the Government repeats its argument that Sister Ortiz's statements lead to the conclusion that there was no violence or use of force in the alleged kidnapping. Presumably, the Government suggests that no kidnapping occurred, because Sister Ortiz was not forcibly removed from the Posada de Belen.

66. Sister Ortiz indicated in the statement quoted by the Government that her captors showed her a pistol and threatened that they would harm her friends if she did not follow them. The Commission finds that a kidnapping occurred, whether or not physical contact and violence was actually used, because Sister Ortiz was removed from the Posada de Belen against her will under threats of violence to herself and others. In any case, the statements quoted by the Government indicate that actual physical force was used in the kidnapping. Sister Ortiz explained that the first man, that she had seen on the street in Guatemala, grabbed her by the arm. When this man insisted that Sister Ortiz follow the two captors, she refused and tried to get away. Then, Sister Ortiz was shown the pistol and stopped struggling.

67. Newspaper reports and the West Report indicate that the nuns at Posada de Belen found the shawl that Sister Ortiz had been wearing, described by Sister Chmielewski to the National Police, some hours after Sister Ortiz's disappearance.[40] Reporters from Prensa Libre later found a watch in the garden.[41] The Bible Sister Ortiz had been carrying was also later found in the garden.[42] The physical struggle between Sister Ortiz and her captor would have been sufficient to dislodge the watch from Sister Ortiz's arm. It is also consistent with Sister Ortiz's statement about the kidnapping that the shawl and the Bible would have been left behind when she was led out of the garden. The Government maintains that a ring was also found by reporters from Prensa Libre. The Commission possesses no information to corroborate the assertion that a ring was found. The article published in Prensa Libre which reports the discovery of the watch by a reporter does not make mention of a ring.[43]

b. The Commission's finding that Government Agents were responsible for the underlying violations

68. The Commission finds that the acts carried out against Sister Dianna Ortiz were committed by agents of the Government of Guatemala acting under color of their official capacity. This conclusion is based on the evidence in the record which indicates that a uniformed policeman participated in the acts against Sister Ortiz, and that she was detained in a Guatemalan military installation. In addition, the evidence shows that, before she was kidnapped, Sister Ortiz was subjected to surveillance of a nature which could only have been carried out by the Guatemalan Government. Finally, the kidnapping and torture of Sister Ortiz corresponds to a pattern of activity by the Guatemalan Government in violation of human rights.

69. Sister Ortiz's credible statements indicate that she was taken to the detention center in a police car driven by a uniformed policeman who also took part in Sister Ortiz's torture. Sister Ortiz was able to recognize the type of car in which she was driven to her place of detention in a judicial recognition proceeding.[44]&nbs