REPORT Nº 28/96
October 16, 1996
The facts denounced in connection with the detention and death
of Juan Hernández Lima
According to the petitioners (Human Rights Office of the
Archbishop of Guatemala and International Human Rights Law Group), Mr.
Juan Hernández Lima, a farmer 38 years of age, was arrested by the
Police in Guatemala City on April 26, 1993, along with four other
people. They were charged
with "disorderly conduct" and brought before the Justice of
the Peace for Criminal Misdemeanors.
The five confessed to having created a "public scandal
induced by liquor" and each was order to spend thirty (30) days
in prison or pay a fine. During
the criminal proceedings, Mr. Hernández was not assisted by defense
counsel. The fine was set
at 20 quetzales (approximately three dollars at that time), plus two
quetzales daily to cancel the 30 days in prison.
Three of those sentenced paid the fine and left prison, while
Mr. Hernández and the other prisoner remained incarcerated because
they were unable to pay the sum of money fixed as the fine.
While confined in the Zone 8 Preventive Detention Center, Mr.
Hernández died on May 2, 1993. The apparent cause of death was a cerebral edema and an
attack of cholera. According
to the petitioners, the medical treatment provided by the staff in
charge of medical care at the detention center was inadequate.
The Director in charge authorized Mr. Hernández' transfer to a
hospital, but the transfer never took place.
Mr. Hernández' mother only learned of his detention on May 6,
1993, from neighbors. She
was told of her son's death and burial when she appeared at the
Preventive Detention Center.
The facts alleged in connection with the judicial inquiry into
the death of Juan Hernández Lima
The petitioners reported that on May 2, 1993, the presiding
Justice of the Peace for Criminal Misdemeanors instituted criminal
proceedings in connection with the death of Juan Hernández Lima.
On May 5, 1993, the case was referred to the First Criminal
Examining Court of First Instance (case 1346-93 of. 7).
Gabriela de María Lima Morataya, the victim's mother, became a
formal plaintiff in the case on July 9, 1993, petitioning the court
for the following: 1)
amplification of the report of the forensic physician to establish how
Mr. Hernández Lima's cerebral edema was caused and whether weapons or
blunt instruments had been used to inflict it; 2) whether medical
treatment is available that can prevent death from cholera; 3) whether
there was negligence or incompetence in the treatment Mr. Hernández
received; 4) that the judge: a)
request a report from the Zone 18 Preventive Detention Center to
ascertain the names of the Director of the Center and whether there is
a file on the victim; b) establish the reasons why the victims'
relatives were not informed of his death; c) ascertain who dispensed
medical treatment to the victim, what treatment he received, and why
he was not taken to a hospital facility.
The petitioners allege that the criminal proceeding has not
made any progress since that time. None of the measures requested by Mrs. Lima as plaintiff have
been carried out and she has never been permitted access to the case
FILING WITH THE COMMISSION
The Commission received a complaint on April 1, 1994, and
additional information on April 15, 1994.
On June 2, 1994, the Commission began to process the case under
number 11.297, and forwarded the pertinent parts of the complaint to
the Government of Guatemala requesting additional information on the
facts denounced and any other information that would enable the
Commission to ascertain whether the remedies under domestic law had
been exhausted in the instant case.
Government responded to the Commission's request on October 5, 1994.
For their part, the petitioners sent their reply to the
Commission on February 10, 1995.
The pertinent parts of that information were sent to the
Government on February 13, 1995.
March 27, 1995, the Government sent to the Commission its reply to the
information most recently supplied by the petitioners in the case.
The Commission forwarded the pertinent parts of this
communication on March 30, 1995, requesting that they make their
observations on the Government's reply.
The Commission reiterated its request on October 6, 1995.
December 11, 1995, a communication from the petitioners was received
at the Commission, requesting an extension of the deadline for
responding to the Government's reply, explaining that they had had
problems compiling the necessary information and proof because of the
Guatemalan courts' refusal to supply the relevant information.
By letter dated December 14, 1995, the Commission granted a
Commission wrote to the Government of Guatemala on December 15, 1995,
to request specific information on the domestic proceedings being
conducted in connection with the death of Juan Hernández Lima, giving
it 30 days in which to reply. The
Government never responded to this request for information.
petitioners in the case replied on December 18, 1995, and the
pertinent parts of that communication were forwarded to the Government
on December 20, 1995.
January 24, 1996, the Commission received a request from the
Government, asking for an extension to reply to the instant case.
A 30-day extension was granted that same day.
The Government sent a communication to the Commission on
February 27, 1996 in response to the communication of the petitioners
of December 18, 1995.
POSITION OF THE PARTIES
The petitioners' position
petitioners allege that Mr. Juan Hernández Lima "died inside a
Guatemalan jail, from a common illness (cholera) that could have been
easily treated." They added that "the treatment received by the prisoners
and persons on trial was not befitting human dignity and caused his
note that the prison officials were negligent in their treatment of
Mr. Hernández Lima; among the irregularities they cite is the fact
that the staff of the detention center had provided too little
rehydration remedy and failed to transfer their patient to a hospital
facility, which would have been the appropriate course of action given
the severity of his condition.
went on to add that:
... in any event, both the prison authorities and those in
charge of health care in the prison, are directly responsible for
ensuring the physical safety of the inmates and respect for their
also alluded to the victim's arbitrary arrest.
The petitioners allege that Mr. Hernández Lima's detention was
in violation of the Guatemalan Constitution:
under Article 11, persons in possession of their identification
papers may not be arrested for misdemeanors or minor infractions.
They contend that:
Juan Hernández Lima had his identification papers with him;
hence, under the Constitution he could not be detained for a
misdemeanor; his arrest was entirely arbitrary.
petitioners added that Mr. Hernández Lima was never given the benefit
of defense counsel and his next-of-kin were not advised of his
petitioners also said that "because he did not have money, he was
unable to pay the fine in lieu of imprisonment."
They allege that had Mr. Hernández had an opportunity to speak
with his next-of-kin, he would have been able to get the money he
needed to pay the fine rather than be incarcerated.
a communication dated February 10, 1995, the petitioners made
reference to the proceedings instituted to investigate the death of
Mr. Hernández Lima, stating that:
Since May 5, 1993, ... the proceedings are with the
First Criminal Examining Court of First Instance (case 1346-93
of. 7), although absolutely no progress has been made in the
proceedings, even though the mother of Juan Hernández Lima became a
formal plaintiff in the case in July of 1993 and petitioned the court
seeking numerous measures.
petitioners further allege that it is up to the Office of the Attorney
General of the Republic to investigate the criminal acts and, as the
Government reported, the Presidential Committee to Coordinate the
Executive Branch's Policy on Human Rights (COPREDEH) requested that
the Attorney General's Office intervene to conduct the appropriate
those investigations produced no results.
the petitioners contend that grounds are present for an exception to
the requirement of exhausting remedies under domestic law; under
Article 46.2.c of the American Convention on Human Rights (hereinafter
"the Convention") that requirement does not apply when
"there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies."
To support their argument, the petitioners point out that:
Mr. Hernández Lima died exactly 21 months ago and thus far
absolutely no progress has been made.
The most recent measure was on July 14, 1993; the delay in the
administration of justice in the death of Juan Hernández Lima is
unwarranted, .... hence, the petition filed should be admitted.
a communication dated December 18, 1995, the petitioners made
reference to the Guatemalan Government's contention that the
Commission could not be informed of the judicial measures and
investigations taken in the criminal proceedings because "aliens
shall not be privy to any investigatory measures."
The petitioners argue that this position is a violation of the
obligations that Guatemala undertook under the American Convention and
also note that:
It is perhaps because of the flagrant delay in the judicial
proceedings and the inexcusable negligence in gathering evidence,
among other things, that Guatemala is hiding behind this supposed
confidentiality vis-a-vis the Inter-American Commission on Human
Rights and the victim's mother. In
the process, it is violating its own Constitution and, worse still,
the norms of the international law of human rights, which under
Article 46 of Guatemala's Constitution, take precedence over domestic
petitioners repeated that, in their judgment, the exception allowed
under Article 46 to the rule requiring exhaustion of internal remedies
applies in the instant case.
The Government's position
its communication of October 5, 1994, the Government noted that Juan
Hernández Lima died on May 2, 1994 at the Zone 18 Preventive
Detention Center in Guatemala, "from severe dehydration,
abdominal pains and diarrhea."
The Government reported on the status of the investigation into
the death of Mr. Hernández, stating that the presiding Justice of the
Peace for Criminal Misdemeanors went to the Preventive Detention
Center the very day that Mr. Hernández died to conduct the first
inquiries and that with those first steps criminal proceedings were
officially instituted to determine whether authorities were negligent
in the death of Mr. Hernández and if so to order the appropriate
Government also reported that thereafter, the judicial proceedings
were remitted to the presiding First Justice of the Peace for Criminal
Misdemeanors and, on May 5, 1993, to the First Criminal Examining
Court of First Instance, where it was classified as case 1346-93 of.
7. The Government added
that the mother of Mr. Hernández Lima became a formal plaintiff in
the criminal proceedings and that "no one has been charged in the
death of Mr. Juan Hernández Lima."
Government further noted that COPREDEH had requested that the Office
of the Attorney General intervene to conduct the pertinent
investigations and bring those responsible to trial.
for the admissibility of the petition, the Government stated that
since criminal proceedings are still in progress in Guatemala,
the Commission must declare the instant case inadmissible.
its observations of March 25, 1995, the Government alleged once again
that the remedies of domestic law had not been exhausted and stated
The Guatemalan State categorically rejects the points raised by
the petitioner and reiterates its desire and political willingness to
seek a prompt and appropriate solution to the instant case by means of
a court ruling reached in accordance with the laws of the country.
Government also noted the following:
[The] Government of Guatemala cannot agree to report on the
inquiries and measures conducted, because Article 314 of the Code of
Criminal Procedure currently in force (Decree 51-92) stipulates that
".... aliens shall not be privy to any investigative
its response of February 27, 1996, the Government informed the
Commission that the criminal case had not been transferred to the
Public Ministry for investigation of the case as is required under the
new Guatemalan Code of Criminal Procedure. The Government explained that the Public Ministry had taken
the necessary actions to obtain the transfer of the file and to
reactivate the proceedings.
Court has ruled that when domestic remedies are
"ineffective", the exceptions to the requirement of recourse
to domestic remedies applies.
The Commission has established that the domestic remedies have
been and are a completely ineffective recourse for protecting the
fundamental rights that were compromised in the instant case.
A total of 33 months have passed since Mr. Hernández Lima died
while in custody and the criminal proceedings have made no headway on
the fundamental issue, even though the victim's mother requested a
number of court measures. The
Government of Guatemala neither alleged nor proved otherwise.
connection with other cases, the Commission noted that "the State
of Guatemala has demonstrated that it is unable or unwilling to carry
out the inquiry and the due legal proceedings required in order to
pursue those responsible for the illegal act..."
Commission believes that in the instant case, the applicable provision
is the one contained in Article 46.2.c of the American Convention,
which allows exception to the rule requiring exhaustion of domestic
remedies when "there has been unwarranted delay in rendering a
final judgment under the aforementioned remedies."
The Commission finds no justification for the 33-month delay in
the criminal proceedings, a period during which no judicial measures
have been taken to further the investigation.
This delay has made it impossible to exhaust the domestic
remedies, which justifies application of the exception provided for in
petition meets the other requirements for admission and admissibility,
as set forth in Articles 44, 46 and 47 of the American Convention and
Articles 31 and 32 of the Commission's Regulations.
Commission further notes that in a communication dated December 18,
1995, the petitioners stated that they discounted any possibility of
arriving at a friendly settlement in the instant case.
Inasmuch as the petitioners have no intention of entering into
a friendly settlement proceeding under Articles 48 and 49 of the
American Convention, the Commission considers this stage to be
Guatemala's failure to comply with its obligation to cooperate
with the Commission
is the Commission's considered opinion that Guatemala has failed to
honor its obligation to supply the information requested in the
instant case. In its
communications to the Commission in connection with this case, the
Guatemalan Government states that "it cannot agree to report on
the investigations and/or measures taken, because Article 314 of the
Code of Criminal Procedure currently in force (Decree 51-92)
stipulates that '... aliens shall not be privy to investigatory
even in its most recent response of February 27, 1996, the Government
did not provide information about the investigative proceedings
carried out in the criminal processing of this case. Nor did the Government respond to the specific questions the
Commission presented to the Government in the Commission's
communication of December 15, 1995 relating to the status of the case
and the investigative proceedings carried out.
Commission categorically rejects the Government's contention that it
cannot provide information on the grounds that domestic law does not
allow the information to be disclosed.
First, the Commission considers that the provision of the
Criminal Procedure Code which has been cited does not prevent the
Government from providing the information to this body.
The Government, which would be responsible for supplying the
information to the Commission, is not "alien" to the
criminal proceeding which it carries out before its courts; nor is the
Commission "alien" to the proceeding.
the Commission reminds the Government that it is a well-established
principle of international law that international obligations
undertaken by states may not be superseded by or made subject to
Guatemala has undertaken a number of international obligations
under the American Convention on Human Rights.
Among them is the one stipulated in Article 48.1 of the
When the Commission receives a petition or communication...
(a)... it shall request information from the government of the state
indicated as being responsible for the alleged violations ... This
information shall be submitted within a reasonable period... e) The
Commission may request the states concerned to furnish any pertinent
The Convention, therefore, obliges states to furnish
information requested by the Commission in the course of developing an
information requested by the Commission would enable it to make
decisions on a case submitted to it for consideration.
A relevant example of the type of decisions in question is
Article 8.1 of the Convention, concerning the need to ascertain
whether a person was given a court hearing within a reasonable time,
or Article 46.2.c. which requires that the Commission determine if
there has been an unwarranted delay in rendering a final judgment
under domestic remedies. Given
the provisions of the American Convention, it would be illogical to
contend that the "confidential phase" of a criminal
proceeding may go on indefinitely, thereby making it impossible for
the Commission to determine whether the period of time is reasonable
public authorities of a state--in any of the three branches of
government--must interpret domestic law in a manner consistent with
international obligations; otherwise, their actions or omissions as
agents of the state could make the state internationally liable for
violations of international laws.
However Guatemala's domestic laws are interpreted, it must
comply with the obligation to furnish the Commission with information
in connection with the individual case being processed.
Otherwise, the Guatemalan Government would be violating the
Convention and prejudicing its own defense in the case.
Court has noted that the states' cooperation is a basic obligation in
international proceedings under the inter-American system, to wit:
In contrast to domestic criminal law, in proceedings to
determine human rights violations the State cannot rely on the defense
that the complainant has failed to present evidence when it cannot be
obtained without the State's cooperation.
The State controls the means to verify acts occurring within
its territory. Although
the Commission has investigatory powers, it cannot exercise them
within a State's jurisdiction unless it has the cooperation of that
44. In the present
case, the Government has not answered regarding the denounced facts
and has refused to provide information relating to the investigative
proceedings carried out in the criminal process in Guatemala.
From the Court's holding, we must conclude that the Government
of Guatemala cannot defend itself by refusing to provide the evidence
needed for the Commission to do a proper analysis of the case.
Therefore, the Commission is of the view that Guatemala is
refusing to produce additional information and to refute the facts as
alleged by the petitioner.
this situation, the Commission invokes the jurisprudence of the Court
to the effect that "the silence of the accused or elusive or
ambiguous answers on its part may be interpreted as an acknowledgment
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."
Commission's view is that the facts are not presumed to be true merely
because the Guatemalan Government's answers in the instant case were
ambiguous or elusive; instead, the facts as alleged must be analyzed
in light of the criteria established here.
The petitioners must, therefore, meet the admissibility
requirements (which have already been met, based on the analysis
already done) and the minimum elements of consistency, specificity and
credibility in the version of the facts presented in order for those
facts to be presumed as true.
Commission is of the opinion that with the information furnished, it
can evaluate the petitioner's version of the facts, as prescribed in
the American Convention and in the Commission's Regulations.
The petitioner presented a detailed and cogent account of the
facts, backed up by the documents the petitioner was able to obtain.
For example, the Commission's case file contains the document
ordering Mr. Hernández's incarceration and his death certificate. When the Government furnished information in connection with
the case, it neither refuted the facts alleged by the petitioners nor
provided any information or evidence that would cast doubt on the
credibility of those facts.
Analysis of the violations of the victims' rights
1.1 of the American Convention on Human Rights states that "The
States Parties to this Convention undertake 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
freedoms, without any discrimination for reasons of race, color, sex,
language, religion, political or other opinion, national or social
origin, economic status, birth, or any other social condition."
Commission has considered the jurisprudence of the Inter-American
Court of Human Rights, which stated the following when referring to
the duties of states like Guatemala that have ratified the American
Convention on Human Rights:
Article 1(1) is essential in determining whether a violation of
the human rights recognized by the Convention can be imputed to a
State Party. In effect,
that article charges the States Parties with the fundamental duty to
respect and guarantee the rights recognized in the Convention.
Any impairment of those rights which can be attributed under
the rules of international law to the action or omission of any public
authority constitutes an act imputable to the State, which assumes
responsibility in the terms provided by the Convention.
obligation emanating from Article 1.1 of the Convention, apart from
respect for the rights and freedoms recognized in the Convention, is
the obligation to ensure the fundamental rights.
This means the duty to prevent and investigate violations of
human rights, the duty to punish those responsible and the duty to
compensate the victim and/or his or her next-of-kin for any actions or
omissions by agents of the State that violate rights recognized in the
Violation of the right to personal liberty
right to personal liberty is recognized in Article 7 of the American
Convention. This article
guarantees a basic human right, which is protection of the individual
against arbitrary interference by the state in exercising his or her
right to personal liberty.
7, paragraphs 1, 2 and 3 read as follows:
1. Every person
has the right to personal liberty and security.
No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the
constitution of the State Party concerned or by a law established
No one shall be subject to arbitrary arrest or imprisonment.
called for under Article 7 of the Convention, the Guatemalan
Constitution establishes the conditions under which a person may be
detained for offenses of the kind committed by Mr. Hernández in the
instant case. Article 11
of the Guatemalan Constitution states the following:
Detention for misdemeanors or minor infractions.
Persons whose identity can be established on the basis of
documentation, from the testimony of a person of good standing, or by
the authorities themselves may not be held in custody.
In such cases, under penalty of punishment, the authority shall
confine himself to reporting the facts to the competent judge and to
advising the offending party to appear in court within the next
forty-eight working hours.
petitioners allege that Mr. Hernández Lima had his identification
document with him at the time of his detention. Nevertheless, he was
arrested by police, in violation of the Guatemalan Constitution.
This fact alone is an express, blatant violation of the right
to personal liberty recognized in the Convention.
Mr. Hernández Lima's arrest is an arbitrary arrest under the
terms of the Convention.
Guatemalan Constitution also states the following:
Article 7.- Notification of cause.
Any individual must be notified ...of the cause for his or her
arrest... Notification is to be made by the most rapid means possible
and shall go to the individual whom the detainee designates.
The authority shall be responsible for seeing that notification
is effectively made.
Article 19.c of the Constitution states that inmates "have
a right to speak, when they so request, with their relatives, defense
attorney, assistant, clergy or physician."
to the petitioners, Mr. Hernández Lima asked the authorities who had
him in their custody to notify his mother.
The prison record shows Mrs. Lima's address.
However, she was never notified.
By the time she learned of her son's arrest and death, he had
already been buried by the authorities of the detention center.
is also obvious that the Guatemalan authorities' failure to notify
next-of-kin is also a violation of Article 7 of the Convention, since
it is one of the requirements that the Guatemalan Constitution
establishes in the event of an arrest.
Violation of the right to life (Article 4) and the right to
humane treatment (Article 5)
articles 4 and 5 of the Convention, every person deprived of his
freedom has the right to have the state guarantee the right to life
and the right to humane treatment. Consequently, inasmuch as it is responsible for detention
facilities, the state is the guarantor of these rights of prisoners.
The Court has also observed that under Article 1.1, the
Guatemalan State "has a legal duty to take reasonable steps to
prevent human rights violations."
a special guarantee of the rights of detainees, the Guatemalan State
must claim and adequately substantiate that it took the measures
necessary to guarantee the life and health of Mr. Hernández Lima.
The State neither refuted the petitioners' allegations nor
presented evidence demonstrating that it took reasonable measures to
prevent Mr. Hernández' death.
Guatemalan State, therefore, violated by omission its duty to
guarantee the health and life of Mr. Hernández Lima since the victim
was in its custody and had no means to turn to his relatives and
friends, to an attorney or to a private physician; the State,
therefore, had complete control over his life and personal safety.
Commission believes that, with the means available to the petitioner,
the latter has made a cogent, specific case for the fact that the
Guatemalan State failed to guarantee Mr. Hernández Lima's life and
personal safety. More
importantly, the Commission has established that the State has not
demonstrated that it acted with the diligence required to protect the
victim's life and health and, moreover, has refused to supply relevant
information on the instant case.
Violation of Article 8.2 of the American Convention
8.2 of the Convention states that every person accused of a criminal
offense is entitled to certain guarantees, among them the following:
the inalienable right to be assisted by counsel provided by the
state, paid or not as the domestic law provides, if the accused does
not defend himself personally or engage his own counsel within the
time period established by law.
classification of the behavior for which an individual is arrested,
whether it be a violation of minor municipal ordinances, a minor
infraction or a misdemeanor, is irrelevant for purposes of the
guarantees established in the Convention.
Because the right to personal liberty is so very important in
the context of the Convention, the Commission considers that the
procedural guarantees for those persons deprived of their freedom for
the commission of a crime, apply equally to persons detained for
violations of minor municipal ordinances, petty crimes or
Hernández Lima was entitled to the guarantees recognized in Article
8.2 of the Convention. The
offense for which he was tried is listed in the Penal Code; because
under certain circumstances such offenses warrant incarceration, the
offense can be likened to a crime.
effect, as the petitioners allege and as the order of incarceration
confirms, in the instant case Mr. Hernández Lima did not have the
benefit of defense counsel. The
Guatemalan Government did not take issue with the petitioners'
the Commission considers that Guatemala violated the judicial
guarantees recognized under Article 8.2 of the Convention.
Violation of articles 8.1 and 25 of the American Convention
on the jurisprudence of the Inter-American Court of Human Rights,
under articles 1.1 and 25 of the American Convention the Guatemalan
State "has a legal duty to take reasonable steps to prevent human
rights violations and 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."
It is the duty of the Guatemalan State to undertake an
investigation "in a serious manner and not as a mere formality
preordained to be ineffective."
The duty to investigate, therefore, is an obligation of means,
requiring that states practice a reasonable degree of diligence in
uncovering the facts.
25 of the American Convention provides the following:
Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized
by the constitution or laws of the state concerned or by this
The States Parties undertake:
to ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by the legal
system of the state.
8.1 of the American Convention provides that:
Every person has the right to a hearing, with due guarantees
and within a reasonable time, by a competent, independent, and
impartial tribunal, previously established by law, in the
substantiation of any accusation of a criminal nature made against him
or for the determination of his rights and obligations of a civil,
labor, fiscal, or any other nature.
obligation undertaken under Article 1.1 is a necessary corollary of
every individual's right to recourse to a court of law for the
protection of the law when he or she is a victim of a violation of any
of his or her human rights. If
this were not the case, the right to effective recourse recognized in
Article 25 would be absolutely devoid of content.
Commission is of the view that the right to a recourse, recognized in
Article 25 and interpreted in combination with the obligation under
Article 1.1 and the provisions of Article 8.1, must be understood as the
right of any individual to accede to a court of law when any of his or
her rights has been violated--whether that right be recognized by the
Convention, the Constitution or the domestic laws of the state--, to
have an inquiry by a competent, impartial and independent tribunal to
determine whether or not any violation has occurred and, when
appropriate, to determine appropriate compensation.
victim, therefore, has the right to receive from the state a serious
investigation, conducted with "the means at its disposal... to
identify those responsible, to impose the appropriate
Convention requires that states offer effective remedies to victims of
human rights violations. The
Commission understands that in the cases in which a violation of the
right to life occur, the state's failure to provide effective remedies
affects the next-of-kin of the deceased and transforms them into
indirect "victims" with the right to judicial protection.
Defined in the broad sense, this means that they have the right
to know the fate of their loved one and the right to compensation.
the instant case, Mrs. Lima became a formal plaintiff in the criminal
proceedings in an effort to move the proceedings forward to have her
son's death investigated and those responsible punished.
The Commission has previously held that, where the right to
participate in criminal proceedings is granted to private individuals,
the victim and/or his relatives enjoy "a fundamental civil right to
go to the courts."
Mrs. Lima has not received the protection of this right
recognized in articles 1, 8 and 25 of the Convention inasmuch as no
investigation was conducted and no trial was ever held.
As a result, Mrs. Lima has received no compensation and has been
unable to learn the circumstances surrounding her son's death and where
the responsibility lies.
private plaintiff, the mother of Juan Hernández Lima, has not been
permitted access to information relating to the judicial inquiry into
her son's death, although Article 314 of Guatemala's Code of Criminal
Procedure allows any party to the proceedings to examine the case files.
She has thus been prevented from effectively exercising the right
recognized in Article 8.1 of the Convention.
human rights law provides that to determine whether a judicial
proceeding has been conducted "within a reasonable period",
in keeping with Article 8.1 of the Convention, the specific
circumstances of the case in question must be examined with the
following three criteria in mind: 1)
the conduct of the victim, 2) the conduct of the court, and 3) the
complexity of the case in question.
These criteria also apply when determining whether a
"rapid" recourse has been available, as required under Article
25.1 of the Convention.
76. As for the
conduct of the victim, in the instant case Mrs. Lima became a formal
plaintiff in the criminal inquiry into the death of her son on July 1,
1993. Mrs. Lima requested
numerous measures obviously intended to gather information from the
Guatemalan authorities, information to which she did not have access.
for the conduct of the court, even though Mrs. Lima requested numerous
measures at the time she became a formal plaintiff, the petitioners
allege that these measures were never taken and that in fact there was
no activity by the court subsequent to that date.
The Government has not indicated that those measures were taken
or that the court carried out any proceedings after July, 1993.
Instead, the Government has refused to provide information on
this point. However, from
the Government's response of February 27, 1996, in which the Government
indicates that the investigations in the case will be reactivated and
that the case will be transferred to the Public Ministry, it becomes
clear that the case was not being handled by the appropriate judicial
organ according to the new Criminal Procedure Code and that the relevant
proceedings have not been carried out.
is obvious to the Commission that the conduct of the judicial agents of
the Government has been negligent.
A total of 33 months have gone by without any progress having
been made. For that reason,
in the Commission's view, it need not evaluate the complexity of the
case, since the complete inactivity over a 33-month period is sufficient
to conclude that the period is not reasonable and that Mrs. Lima has not
had the benefit of a rapid recourse.
Commission concludes that the judicial proceedings to determine Mrs.
Lima's rights have not been conducted in accordance with articles 8 and
25 of the Convention.
RESPONSE TO THE COMMISSION'S ARTICLE 50 REPORT
to Article 50 of the Convention, the Commission, during its 92º special
session, approved Report 22/96 concerning the present case.
That report and the recommendations contained therein were
transmitted to the Government of Guatemala by communication of May 31,
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
days. By note of August 6,
1996, the Government of Guatemala responded to Report 22/96.
Commission is pleased to take notice of the Government's acceptance of
the recommendation that the Government comply with the requirements of
the Convention in the processing of cases before the Commission and the
Government's assurance that it will cooperate in regard to requests made
of it. The Commission also
notes the significant work currently being carried out by the Government
of Guatemala towards the goal of advancing human rights as set forth in
the Government's response.
the Commission finds that the Government has not shown in its response
to the Article 50 report that it has fully complied with the most
important recommendations of the Commission in order to resolve the
situation under examination. The Commission notes that the Government's response makes
clear that the Public Ministry is currently carrying out important
investigative tasks in relation to the case.
However, as the Government recognizes, the investigations still
have not been completed and the results have not been made known.
The Government has not yet named or prosecuted any person
responsible for the violations and no person has been sanctioned. Nor has compensation been provided.
THE INTER-AMERICAN COMMISSION OF HUMAN RIGHTS,
on the considerations set forth in this report and taking into
consideration the observations submitted by the Government of Guatemala
in relation to Report 22/96, the Commission concludes the following:
That the Guatemalan State is responsible for violation of the
obligation to respect the right to personal liberty (Article 7,
paragraphs 1, 2 and 3) and violation of the obligation to respect the
judicial guarantees (Article 8.2) of Mr. Juan Hernández Lima, in
accordance with Article 1.1 of the American Convention on Human Rights.
That the Guatemalan State is responsible for violation by
omission of its obligation to guarantee the right to life (Article 4)
and the right to humane treatment (Article 5, paragraphs 1 and 2) of Mr.
Juan Hernández Lima, in accordance with Article 1.1 of the American
Convention on Human Rights.
That the Guatemalan State is responsible for violation of the
obligation to respect the judicial guarantees (Article 8.1) and to
provide an effective recourse (Article 25) to Mrs. Gabriela de María
Lima Morataya, mother of Mr. Juan Hernández Lima, in accordance with
the generic obligation established in Article 1.1 of the American
Convention on Human Rights.
Commission recommends to the State of Guatemala that it:
Investigate the violation of the rights of Mr. Hernández Lima
and his mother and punish all those responsible.
Propose a rapid and effective procedure for the compensation of
the damages suffered by Mr. Hernández Lima's next-of-kin as a result of
the human rights violations identified in this report within the period
established in the following paragraph, which procedure must fully and
clearly satisfy the requirements for compensation of the inter-American
system for the protection of human rights.
Ensure the right to a defense and the exercise of the
indispensable due process guarantees provided for in Article 8.2 of the
Convention in misdemeanor and infraction cases which may result in the
detention of the accused.
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.
Annual Report of the Inter-American Commission on Human
Rights 1995, Report No. 13/96, Case 10.948, El Salvador, March 1,
1996, pars. 19-21; Annual Report of the Inter-American Commission on
Human Rights, Report No. 5/96, Case 10.970, Perú, March 1, 1996, p.
Under the Convention,
States Parties have an obligation to provide effective judicial
remedies to victims of human rights violations (Article 25),
remedies that must be substantiated in accordance with the rules of
due process of law (Article 8(1)), all in keeping with the general
obligation of such States to guarantee the free and full exercise of
the rights recognized by the Convention to all persons subject to
their jurisdiction (Article 1).
Annual Report of the Inter-American Commission on Human
Rights, 1992-1993, Report No. 28/92, Cases 10.147, 10.181, 10.240,
10.262, 10.309 and 10.311, Argentina, 2 October 1992, par. 34; see
also Annual Report of the Inter-American Commission on Human
Rights, 1992-1993, Report No. 29/92, Cases 10.029, 10.036, 10.145,
10.305, 10.372, 10.373, 10.374 and 10.375, Uruguay, 2 October 1992,