REPORT Nº 30/96
October 16, 1996
On June 11, 1991, the Inter-American Commission on Human Rights
opened a case relating to the following complaint:
Arnoldo Juventino Cruz Soza (the petitioner's brother) was
"disappeared" on February 11, 1990, in the community of La
Palma, municipality of Río Hondo, department of Zacapa, at
approximately 2:00 p.m. This
act was perpetrated by persons collaborating with the G-2 (intelligence
unit of the Guatemalan Army) Military Zone 705, located in the city of
Zacapa. The complaint named
eight persons as the suspected perpetrators of the disappearance.
The petitioner sought assistance in learning about the
whereabouts of the victim from the General Directorate of the National
Police, the Human Rights Ombudsman, the Human Rights Commission, the
Congress, and the Judicial Organism, with no success.
The facts provided immediately hereafter are based on information
provided by the petitioner and by the Government.
On March 22, 1990, the Public Ministry intervened in the criminal
proceedings which had been initiated in relation to the disappearance.
The Public Ministry called for the Police to carry out an
exhaustive investigation into the case so as to determine the victim's
The first complaint from Juventino Cruz Morales (the victim's
father) was made July 16, 1990, in Río Hondo, Zacapa.
The judge of Río Hondo subpoenaed complainant Juventino Cruz
Morales to ratify the complaint and to provide further evidence, but he
did not come forward.
On August 17, 1993, Mr. Juventino Cruz Morales for the second
time denounced to the Sub-Station of the National Police that his son
Arnoldo Juventino Cruz Soza had disappeared.
Based on this complaint new criminal proceedings were brought for
the same act, originally before the Justice of the Peace of the
municipality of Río Hondo. The
proceedings were later removed to the Criminal Court of First Instance
of the department of Zacapa.
In due course, the First Criminal Court of First Instance of
Zacapa, at the request of the Public Ministry, joined the first
proceeding, No. 314-90 carried out by the First Official, to the second
case, C-1095-93 entrusted to the Second Official, since both concern the
The Public Ministry asked the judge in the case to reiterate the
order to the complainant to ratify his complaint and provide more
evidence. The Public
Ministry also asked the judge to take the statement of various persons
accused of participating as the intellectual and material authors of the
crime, including various Army collaborators and the ex-Governor of the
department of Zacapa. These
persons did not come forward to make a statement.
March 1991 the relatives of the victim brought a motion for habeas
corpus (known in Guatemala as "recurso de exhibición
personal") before the Court of First Instance of Zacapa.
The result of the action, according to the petitioner, was
negative, for it was not possible to discover the victim's whereabouts.
He was not registered in any prison in the country, nor in the
PROCEEDINGS BEFORE THE COMMISSION
Commission opened the case on June 11, 1991, based on the complaint
brought by the petitioner. The
Commission forwarded the pertinent parts to the Government of Guatemala
on that date, asking the Government to send information on the events
November 5, 1991, a letter was received from petitioner Eddy Cruz Soza
asking that the investigation be expedited and asking the current
Government to clear up the victim's disappearance, since the previous
government provided no response whatsoever. The petitioner also noted that he had been forced to leave
the country due to the threats and persecution by members of the
military directed at him.
January 24 and March 5, 1992, the Commission reiterated to the
Government its request for information on the case.
March 10 and 11, 1992, additional information was received from the
petitioner making reference to the persons allegedly responsible for the
disappearance of Arnoldo Juventino Cruz.
The petitioner identified members of the G-2 of Military Zone 705
of Zacapa as material authors and the former Governor of Zacapa and
another Army collaborator as intellectual authors.
15. On May 5, 1993,
the Commission forwarded to the Government the additional information
received from the petitioner, for the Government's observations.
a note dated July 8, 1993, the Commission gave the Government the 30
days it had requested on June 29 to respond.
March 9, 1994, the Commission reiterated its request for information
from the Government with notice that Article 42 of the Regulations,
regarding the presumption that the facts alleged are true, might be
May 11, 1994, the Government of Guatemala answered, reporting that on
August 17, 1993, Juventino Cruz lodged a complaint with the Police
regarding the disappearance of his son; that he had not done so
previously out of fear of reprisals by the persons whom he accuses of
responsibility for the disappearance; that the case is before the First
Criminal Court of First Instance of the department of Zacapa; and that
the Public Ministry intervened in the proceedings on March 22, 1990, and
asked that the investigation into the whereabouts of the perpetrators of
this disappearance be carried out.
The judge subpoenaed the petitioner to bring forth evidence, but
he did not come forward. The
Government further informed that there exists no formal complaint and
that the persons alleged to be responsible for the disappearance were
subpoenaed to provide statements, but they did not come forward.
June 7, 1994, the information from the Government was forwarded to the
petitioner for his observations.
September 7, 1994, the Commission reiterated its request for information
to the petitioner. On
February 24, 1995, the petitioner's answer was received.
It again included the names of alleged material authors of the
disappearance, all supported by the G-2 of Military Zone 705 of Zacapa.
February 24, 1995, additional information was received from the
petitioner in which he states that the disappearance occurred at
kilometer 138 of the road to the Atlantic, in the community already
noted in the initial complaint.
March 21, 1995, the Commission forwarded the information received from
the petitioner to the Government. In
addition, the Commission requested specific information related to the
criminal proceedings under domestic law.
June 5, 1995, the Government answered the Commission, reporting that the
Presidential Coordinating Commission for Executive Policy on Human
Rights (COPREDEH) had requested information from the Public Ministry as
to the status of the proceedings. The answer received by COPREDEH was that, despite the
subpoenas issued by the Court to the persons involved in the events,
said persons had not been located.
March 27, 1996, the Commission sent to the parties a communication
announcing that it would make itself available to the parties to assist
in seeking friendly settlement of the case.
The Commission requested a response to the offer within a period
of 30 days. The Government
of Guatemala responded in a note dated May 13, 1996, indicating that the
Government was of the opinion that friendly settlement negotiations were
not appropriate in this case.
POSITION OF THE PARTIES
The petitioner's position
petitioner alleges that the victim was disappeared by Government agents
and that there was no effective investigation to determine his
whereabouts; that the alleged perpetrators are known, that they are
persons tied to the Guatemalan Army, but that were not put on trial;
that proceedings were brought under domestic law, but those proceedings
came to a standstill; that a motion was filed for habeas corpus, but
with no positive result; that the whereabouts and status of the victim
are still unknown; and that the Government of Guatemala did not
cooperate or carry out an effective investigation into the
Government of Guatemala answered by reporting on the proceedings under
domestic law, stating that the criminal proceedings were based on the
complaint lodged by Juventino Cruz, but that the investigation was not
carried out due to the lack of a formal complaint against an individual;
that the petitioner was asked to provide further evidence, but he did
not do so; that the persons alleged to be responsible were subpoenaed to
provide statements, but were not located.
Finally, the Government expressly states that "to date no
one has been questioned, consequently, there are no positive
complaint meets the formal requirements of admissibility provided for in
Article 46(1)(d) of the American Convention, and is not manifestly
groundless or out of order. (American Convention on Human Rights, Article 47(c)).
Inter-American Commission on Human Rights is authorized to take
cognizance of this case as it involves alleged violations of the rights
to life (Article 4(1)), to humane treatment (Article 5), to personal
liberty (Article 7), to a fair trial (Article 8), and to judicial
protection (Article 25), all as set forth in the American Convention on
Human Rights and in relation to its Article 1(1). This case is within the Commission's jurisdiction pursuant to
Article 44 of the Convention.
requirements of Articles 46(b) and 47(d) of the Convention are met,
because the complaint is not a substantial reproduction of another
complaint already examined nor does it concern a matter pending in
another international forum.
Government has not alleged failure to abide by the time period
requirement provided for in Article 46(1)(b) of the Convention.
accordance with Article 48(1)(f) of the Convention, the Commission
placed itself at the disposal of the parties for the purpose of arriving
at a friendly settlement of the case.
The Government responded indicating that it did not wish to enter
into friendly settlement negotiations.
The Commission considers that the friendly settlement stage of
the proceedings has concluded.
Exhaustion of domestic remedies
Inter-American Court of Human Rights has determined, as regards the
exhaustion of domestic remedies, that "in keeping with the object
and purpose of the Convention and in accordance with an interpretation
of Article 46(1)(a) of the Convention, the proper remedy in the case of
the forced disappearance of persons would ordinarily be habeas corpus,
since those cases require urgent action by the authorities . . . [and]
`habeas corpus would be the normal means of finding a person presumably
detained by the authorities, of ascertaining whether he is legally
detained and, given the case, of obtaining his liberty.'"
(I/A Court H.R., Caballero Delgado and Santana Case.
Preliminary Objections. Judgment of January 21, 1994, paragraph
64, citing I/A Court H.R., Velásquez Rodríguez Case, Judgment of July
29, 1988, paragraph 65.)
the Court's holding, in cases of "disappeared persons", such
as the present case, merely bringing a motion for habeas corpus which
has a negative result since the victim is not found, suffices to
conclude that domestic remedies have been exhausted.
There is no need to analyze the processing of the case under
domestic law, because although that issue is also important, it becomes
part of the analysis of the merits.
(I/A Court H.R., Caballero Delgado and Santana Case. Preliminary
Objections. Judgment of January 21, 1994, paragraph 67.)
addition, domestic remedies, according to the jurisprudence of the
Court, must be effective. In other words, they must address the purpose for which they
were designed. (I/A Court
H.R., Velásquez Rodríguez Case. Judgment
of July 29, 1988, paragraphs 63, 64.)
In the case before us, the victim disappeared on February 11,
1990. This fact was
denounced under domestic law on July 16, 1990.
More than four years have elapsed and there is no information
regarding his status, and the criminal proceedings reached only the
initial phase. No
investigation has been conducted, which would have allowed the gathering
of the relevant evidence, and the case has been gathered, and the
statements of the accused have not been taken.
The motion for habeas corpus also yielded no result. The criminal case is at a standstill, because the whereabouts
of the persons alleged to be responsible were not determined, and there
has been no progress in clarifying the facts.
The lack of results in both proceedings (the habeas corpus and
criminal proceedings) constitute a sufficient showing of the
ineffectiveness and inadequacy of those remedies.
Neither led to the recovery of the victim nor punishment of the
persons who carried out the criminal act.
the Government does not show the existence and efficacy of a remedy, it
cannot allege non-exhaustion. In
addition, in this case the Government did not argue before the
Commission the issue of failure to exhaust domestic remedies and so a
tacit waiver of the objection of non-exhaustion of domestic remedies is
presumed. (See I/A Court
H.R., Velásquez Rodríguez Case. Preliminary
Objections. Judgment of
June 26, 1987, paragraph 88.) Therefore,
as regards exhaustion of domestic remedies, the Commission finds the
exception of Article 46(2) of the Convention applicable, thereby
providing an exemption to the exhaustion requirement.
ANALYSIS OF THE MERITS
Presumption regarding the facts alleged
petitioner lodged a complaint with the Commission as to the
disappearance of Arnoldo Juventino Cruz Soza and reported on the names
of the persons alleged to be guilty of the criminal act.
facts alleged by the petitioner were at no time called into question or
denied by the Government, which answered the complaint referring only to
the criminal proceedings under domestic law.
jurisprudence of the Court holds that "the silence of the accused
or elusive or ambiguous answers on its part may be interpreted as an
acknowledgement of the truth of the allegations, so long as the contrary
is not indicated by the record or is not compelled as a matter of
law." (I/A Court H.R.,
Velásquez Rodríguez Case. Judgment
of July 29, 1988, paragraph 138.)
this case the Commission has sufficient information to establish the
victim's disappearance and the truth of the allegations, and the record
includes no evidence or information that would require the Commission to
arrive at a contrary conclusion.
Violation of the victim's rights
Juventino Cruz was "disappeared" on February 11, 1990.
It is not known what has become of him.
It is not known whether he was detained or whether he is still
alive. The Government,
despite having begun criminal proceedings to investigate and resolve the
case, provided no indication whatsoever that might yield a clue as to
the victim's whereabouts. No
investigation has been conducted which would allow those responsible to
be charged with the crime, even though the petitioner provided
information as to the identity of the persons alleged to be involved,
presumably personnel working with the Army.
To date those persons have not been tried.
general picture that emerges from the facts alleged:
the disappearance of the victim, the lack of information as to
his status, the failure to try the accused, and the failure of public
officers and the Government to investigate an act carried out against a
national within the jurisdiction of the Guatemalan State--fits within
the definition of "forced disappearance" developed by the
jurisprudence of the Court and the Commission and incorporated into the
Inter-American Convention on the Forced Disappearance of Persons.
(See Annual Report of the Inter-American Commission on Human
Rights 1985-86, p. 40-41; Annual Report of the Inter-American Commission
on Human Rights 1982-83, p. 48-50; Annual Report of the Inter-American
Commission on Human Rights 1980-81, p. 113-14; I/A Court H.R., Velásquez
Rodríguez Case. Judgment
of July 29, 1988, paragraph 147; Inter-American Convention on Forced
Disappearance of Persons, Art. III.)
forced disappearance is considered to be a continuing or permanent
offense until the victim's fate or whereabouts are determined.
(I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, paragraphs 155, 181). A
disappearance involves multiple violations of fundamental human rights.
(I/A Court H.R., Velásquez Rodríguez Case, Judgment of July 29,
1988, paragraph 155.) As
this is a case of forced disappearance, all of those rights are found to
have been violated in this case.
Right to juridical personality
disappearance of Mr. Arnoldo Juventino Cruz Soza constitutes a violation
of his right to recognition as a person before the law protected by
Article 3 of the American Convention on Human Rights.
When Mr. Cruz was disappeared by agents of the Government, he was
necessarily placed outside of and excluded from the juridical and
institutional order of the State. This
exclusion had the effect of denying recognition of the very existence of
Mr. Cruz as a human being entitled to be recognized as such before the
law. (See Declaration on
the Protection of All Persons from Enforced Disappearance, Art. 1.2
(characterizing forced disappearance as "a violation of the rules
of international law guaranteeing, inter alia, the right to
recognition as a person before the law.") United Nations General
Assembly Resolution 47/133, December 18, 1992).
Right to life
Court has stated, with respect to the right to life:
"The practice of disappearances often involves secret
execution without trial, followed by concealment of the body to
eliminate any material evidence of the crime and to ensure the impunity
of those responsible. This
is a flagrant violation of the right to life, recognized in Article 4 of
the Convention...." (I/A
Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988,
Juventino Cruz Soza is still disappeared and his status is not known.
Given the time elapsed, it is presumed that his life was taken by
State agents. (See I/A
Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988,
the Commission considers that the right to life, a fundamental right
protected by the Convention in Article 4, has been violated.
Right to humane treatment
this multiple violation arising from the disappearance, violation of
Arnoldo Juventino Cruz Soza's right to humane treatment is implicit.
this regard, the Court holds that "prolonged isolation and
deprivation of communication are in themselves cruel and inhuman
treatment, harmful to the psychological and moral integrity of the
person and a violation of the right of any detainee to respect for his
inherent dignity as a human being.
Such treatment, therefore, violates Article 5 of the Convention,
which recognizes the right to the integrity of the person...." (I/A Court H.R., Velásquez Rodríguez Case, Judgment of July
29, 1988, paragraph 156.)
on the foregoing, the Commission finds that Article 5 of the Convention
has been violated.
Right to personal liberty
Court has stated in connection with the right to personal liberty:
"The kidnapping of a person is an arbitrary deprivation of
liberty, an infringement of a detainee's right to be taken without delay
before a judge and to invoke the appropriate procedures to review the
legality of the arrest, all in violation of Article 7 of the Convention
which recognizes the right to personal liberty...."
(I/A Court H.R., Velásquez Rodríguez Case.
Judgment of July 29, 1988, paragraph 155.)
disappearance of Arnoldo Juventino Soza also involves a violation of
this right, recognized by the Convention in Article 7.
Right to a fair trial and to judicial protection
on the information provided by the parties, it has been shown that the
Government of Guatemala has not provided the fair trial nor the judicial
Court states that the principles of international law: "refer not
only to the formal existence of . . . remedies, but also to their
adequacy and effectiveness, as shown by the exceptions set out in
Article 46(2)." (I/A
Court H.R., Velásquez Rodríguez Case, Judgment of July 29, 1988, paragraph 63.)
Court has also clarified that a failure to meet the requirement for
effective and not merely formal proceedings implies not only an
exception to the exhaustion of domestic remedies but also a violation of
Articles 8 and 25 of the Convention. (I/A Court H.R., Velásquez Rodríguez Case. Preliminary
Objections. Sentence of June 26, 1987, paragraph 91.)
criminal proceedings under domestic law became a merely formal and
insubstantial procedure, and the investigation provided not the
slightest indication of the victim's whereabouts.
In addition, the motion for habeas corpus on the victim's behalf
did not prevail; in practice it turned out to be absolutely ineffective.
After six years his status continues to be unknown.
A procedure in which, although an individual is able to use the
remedies, there is no clarification of the truth of the facts alleged,
and the victim continues "disappeared," cannot be considered
effective or adequate.
of the Government's arguments to justify the standstill in the criminal
case is the fact that no formal complaint was lodged and pursued on the
victim's behalf. This
argument has no support or legal basis, for the domestic law applicable
in this case establishes that in all cases of crimes of public order,
the Public Ministry assumes the representation of the State and the
victim, and proceedings cannot be halted on the grounds that the victim
(civil party) has not formally joined the proceedings.
The Public Ministry has the obligation to assume the defense of
the victim and the state. As a result, it should promote and undertake all procedures
that the case merits (offer of proof, inspections, and any other
investigation). Along these
same lines, the trial judge is responsible for ensuring that all actions
needed to clarify the facts are taken.
(See Code of Criminal Procedure of Guatemala, Law Number 52-73,
arts. 16 (Public Ministry) and 68 (Public Action); Constitution of the
Republic of Guatemala, Art. 264 (applicable in disappearance cases)).
jurisprudence of the Court confirms what is provided for under domestic
law when referring to the obligation of states.
In relation to the previous paragraph, it says:
"The State has a legal duty to ...
use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to
identify those responsible, to impose the appropriate punishment and to
ensure the victim adequate compensation."
(I/A Court H.R., Velásquez Rodríguez Case.
Judgment of July 29, 1988, paragraph 174.)
other words, the state cannot recur to any argument to elude its duty to
investigate a case that involves the violation of fundamental human
rights. The Court so states
when it says that the investigation "must be undertaken in a
serious manner and not as a mere formality preordained to be
investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends on
the initiative of the victim or his family, or upon their offer of
proof, without an effective search for the truth by the
Court H.R., Velásquez Rodríguez Case.
Judgment of July 29, 1988, paragraph 177.) The State had the non-delegable and irrevocable duty to carry
out the necessary investigations which would result in a determination
of responsibility for the disappearance and to question and prosecute
the persons responsible under the law, always complying with the
requirements of due process.
characteristics set forth on the fate of the criminal proceedings and
the habeas corpus motion under domestic law constitute a violation of
Articles 8 and 25 of the Convention by the Guatemalan State.
On the obligation of states to guarantee and respect human rights
this case it has been shown that the Guatemalan State has not abided by
the Article 1(1) provision "to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and
the violations of the rights set forth in Articles 3, 4, 5, 7, 8, and 25
of the Convention are imputed to the State.
first obligation of states that emerges from Article 1(1) is to respect
the rights and freedoms of all individuals under their jurisdiction.
In relation to this obligation, the Court said that "under
international law a State is responsible for the acts of its agents ...
and for their omissions, even when those agents act outside the sphere
of their authority or violate internal law."
In addition, it establishes that "any violation of rights
recognized by the Convention carried out by the act of public authority
or by persons who use their position of authority is imputable to the
State." (I/A Court
H.R., Velásquez Rodríguez Case. Judgment
of July 29, 1988, paragraphs 170 and 172.)
Commission concludes that the "disappearance" of Arnoldo
Juventino Cruz Soza and the consequent denial of justice were committed
by Army collaborators and public officials and thus are public acts
perpetrated by Government agents. The
Guatemalan State thereby violated the rights of the victim established
in Article 1(1) in relation to violations of Articles 3, 4, 5, 7, 8, and
25 of the Convention.
second obligation set forth in Article 1(1) is to guarantee the free and
full exercise of the rights and freedoms recognized in the Convention.
In this regard, the jurisprudence of the Court establishes: "This obligation implies the duty of the States Parties
to organize the governmental apparatus and, in general, all the
structures through which public power is exercised, so that they are
capable of juridically ensuring the free and full enjoyment of human
rights. As a consequence of this obligation, the States must prevent,
investigate and punish any violation of the rights recognized by the
Court H.R., Velásquez Rodríguez Case.
Judgment of July 29, 1988, paragraph 166.)
second obligation referred to just above implies that in the case of a
"forced disappearance" the state has the duty to determine the
fate and status of the victim, punish the persons guilty, and indemnify
the victim's family members.
the case before us, these obligations have not been met, and thus the
Commission concludes by determining that the Guatemalan State has
because it did not guarantee Arnoldo Juventino Cruz Soza and his family
the exercise of their rights and guarantees.
RESPONSE TO THE COMMISSION'S ARTICLE 50 REPORT
to Article 50 of the Convention, the Commission, during its 92º Special
Session, approved Report 21/96 concerning the present case.
That report and the recommendations contained therein were
transmitted to the Government of Guatemala by communication of May 15,
1996 with a request that the Government inform the Commission of the
measures which it had adopted to comply with the recommendations of the
Commission and to remedy the situation examined within a period of 60
July 23, 1996, the Commission received a note from the Government of
Guatemala in which the Government requested an extension of time to
respond to the Article 50 report. An
extension of 30 days was granted by the Commission on August 1, 1996.
By note of September 19, 1996, the Government of Guatemala
responded to Report 21/96.
Commission finds that the State's response does not establish that the
State has complied with the recommendations of the Commission for the
resolution of the situation under examination.
The State does not report any advances in the investigation of
the case and, in fact, notes that possible witnesses to the facts
subject of this case were not cited to testify until September of 1995,
more than five years after the disappearance occurred.
Nor does the State's response include information about any
action taken to provide compensation to the family members of the
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
on the foregoing,
light of the information and observations provided in this report and
taking into consideration the observations submitted by the State of
Guatemala in relation to Report 21/96, that the Guatemalan State has not
met its obligation to respect and guarantee the observance of the right
to juridical personality, to life, to humane treatment, to liberty, to a
fair trial, and to judicial protection, thereby violating Articles 3, 4,
5, 7, 8, and 25 of the American Convention on Human Rights in relation
to Article 1(1) of the Convention, to which Guatemala is a State Party,
and is therefore liable for the disappearance of Arnoldo Juventino Cruz
Soza and for denial of justice.
Commission recommends to the State of Guatemala that it:
Re-open the investigation into this case in order to establish
the whereabouts of Juventino Cruz Soza and that it investigate and
sanction those responsible for his disappearance.
Pay the family members due compensation.
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.