REPORT
Nº 59/01
I.
SUMMARY 1.
From 1990 to 1993, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”) received a number of
petitions alleging the extrajudicial execution of a total of fifteen persons,
and the attempted extrajudicial execution of another seven.
Each of these petitions alleged that the material authors of the
violations of the victims’ fundamental rights had been members of the
Civil-Defense Patrols [Patrullas de Autodefensa Civil] (hereinafter the
“PAC” or “Civil Patrols”) or military commissioners. 2.
The cases listed above were opened following receipt of the petitions
and then processed in accordance with the provisions of the American
Convention on Human Rights (hereinafter “the American Convention”) and the
Commission’s Regulations. Having
done this and after determining that every case alleged that the material
authors of the various human rights violations were members of either the
Civil Patrols or military commissioners, and having considered how the PAC and
military commissioners operate, the time frame of the various petitions in
question and the modus operandi in each one, the Commission, acting in accordance
with Article 40 of its Regulations, decided to combine these cases and address
them in a single report.[2] 3.
The present report examines whether the Republic of Guatemala
(hereinafter “Guatemala” or “the State”) incurred international
responsibility for the acts committed by the Civil Patrols and/or military
commissioners in the deaths of Remigio Domingo Morales, Rafael Sánchez, Pedro
Tau Cac, José María Ixcaya Pixtay, José Vicente García, Mateo Sarat Ixcoy,
Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz, Manuel
Ajiataz Chivalán, Catrino Chanchavac Larios, Miguel Tau Imul, Camilo Ajquí
Gimon and Juan Tzunux Us; in the attempted extrajudicial execution of Catalino
Chochoy, José Corino Thesen, Abelino Baycaj, Juan Galicia Hernández, Andrés
Abelino Galicia Gutiérrez, Orlando Adelso Galicia Gutiérrez and Antulio
Delgado, and in the grave injuries they sustained as a result. 4.
As set forth in the present report and after examining the information
supplied by the petitioners, the responses given by the State, the historical
context in which the events occurred and the abundant information available as
to organization, use, objectives and operations of the Civil Patrols and
military commissioners, the Commission declares the present case admissible. 5.
Likewise, the Commission concludes that the facts that prompted the
petitions are true and that Guatemala is responsible for violation of the
following rights: (1) the right to life recognized in Article 4 of the
American Convention, in the cases of Remigio Domingo Morales, Rafael Sánchez,
Pedro Tau Cac, José María Ixcaya Pictay, José Vicente García, Mateo Sarat
Ixcoy, Celestino Julaj Vicente, Miguel Calel, Pedro Raguez, Pablo Ajiataz,
Manuel Ajiataz Chivalan, Catrino Chanchavac Larios, Miguel Tau Imul, Camilo
Ajquí Gimon and Juan Tzunux Us; (2) the right to personal liberty recognized
in Article 7 of the Convention in the cases of Remigio Domingo Morales, Rafael
Sánchez, Pedro Tau Cac y Camilo Ajqui Gimon; (3) the right to humane
treatment recognized in Article 5 of the American Convention and Articles 1, 6
and 8 of the Inter-American Convention to Prevent and Punish Torture, in the
cases of Remigio Domingo Morales, Rafael Sánchez, Pedro Tau Cac and Camilo
Ajqui Gimon; and the right to humane treatment upheld in Article 5 of the
Convention in the cases of the victims of attempted extrajudicial execution,
namely Catalino Chochoy, José Corino, Abelino Baycaj, Antulio Delgado, Juan
Galicia Hernández, Andrés Abelino Galicia Gutiérrez and Orlando Adelso
Galicia Gutiérrez; (4) the rights of the child recognized in Article 19 of
the American Convention, in the cases of minors Rafael Sánchez and Andrés
Abelino Galicia Gutiérrez; (5) the rights to a fair trial and to judicial
protection recognized in Articles 8 and 25 of the American Convention, in the
case of all the victims, both those who were executed extrajudicially and
those who were the targets of attempted extrajudicial executions; (6) also,
the State is considered responsible in all these cases because it failed to
comply with its obligation to respect and ensure the rights protected in the
American Convention on Human Rights, as stipulated in Article 1(1) thereof. 6.
The Commission is therefore recommending to the State that:
(1) it conduct a thorough, impartial and effective investigation of
each case to ascertain the facts in the extrajudicial executions and attempted
extrajudicial executions of the victims and the attendant violations, and to
punish those responsible; (2) it
adopt the measures necessary for the families of the victims of the
extrajudicial executions to receive prompt and sufficient compensation for the
violations herein established; (3) it take the measures necessary so that the
victims of the attempted extrajudicial executions receive adequate and prompt
compensation for the violations herein established; (4) it effectively prevent
a resurgence and reorganization of the Civil Patrols; (5) the principles
upheld in the United Nations “Declaration on the right and responsibility of
individuals, groups and institutions to promote and protect universally
recognized human rights and fundamental freedoms” be promoted and that the
necessary measures be taken for ensuring the freedom of expression enjoyed by
those who work to secure respect for fundamental rights and for protecting
their life and personal integrity. II. FACTS
ALLEGED, PROCESSING WITH THE COMMISSION AND THE POSITION OF THE STATE A.
Cases involving extrajudicial executions
1. Case
10.626: Remigio Domingo Morales and Rafael Sánchez a. Facts
alleged 7.
On June 28, 1990, in the hamlet of Tuisquián, village of Xemal, the
municipality of Colotenango, department of Huehuetenango, Remigio Domingo
Morales and teenager Rafael Sánchez (15 years) were seized by Civil Patrolmen
and accused of being guerrillas. Once in custody, the commander of the
military base at Huehuetenango ordered the local PAC to gather everyone from
the hamlet to “be present when Civil Patrolmen Nicolás Godínez, Modesto
Godínez and Andrés Domingo stoned them on the commander’s orders.” The
victims were taken to the Huehuetenango hospital in critical condition.
According to records, the victims died from the serious injuries they
sustained at the hands of their captors.
The events were reported to the proper authorities and to the press. b. Proceedings
with the Commission 8.
On August 17, 1990, the Commission opened case 10.626 and forwarded the
pertinent parts of the petition to Guatemala, requesting that the government
provide pertinent information. Guatemala
supplied information on July 10, 1991 and September 26, 1994.
On November 6, 1995, the petitioners filed their observations to the
State’s response, which were then promptly brought to its attention.
Since then, no new information has been forthcoming from either party. 9.
On August 9, 1998, the Commission placed itself at the disposal of the
parties with a view to reaching a friendly settlement.
The parties did not accept the Commission’s offer. c. The
State’s position 10. The State reported that in the instant case, “the Second Court of First Instance of the Department of Huehuetenango instituted criminal inquiry number 1261-90. A number of members of the Colotenango Civil Patrol were charged with battery and unlawful arrest….” The State requested that, in keeping with Article 46 of the American Convention, the case be declared inadmissible on the grounds that the remedies under domestic law had not been exhausted. 2. CASE
10.627: Pedro Tau Cac a. Facts
alleged 11.
On July 2, 1990, in the town of Chiop, Santa María Chiquimula,
Totonicapán, Pedro Tau Cac, a member of the Runujel Junam Ethnic Communities
Council, was attacked while doing farm work. His assailants were men in
civilian dress–presumably members of the PAC-who detained him and took him
to some unknown destination. Several
days later, his corpse was found in a deserted area and bore signs of torture.
The facts were reported to the proper authorities and to the press. b. Proceedings
with the Commission 12.
The Commission opened case 10.627 on July 17, 1990, and forwarded the
pertinent parts of the petition to the State, requesting information from it.
The State replied on July 10, 1991, stating that a criminal case was in
progress in the domestic courts to investigate what transpired.
In February 1994, the State supplied additional information.
Since then no new information has been forthcoming from the parties.
13.
On August 1, 2000, the Commission placed itself at the disposal of the
parties with a view to reaching a friendly settlement.
The parties did not accept the Commission’s offer. c. The
State’s position 14.
The State reported that proceedings had been instituted in criminal
inquiry number 574-90 in the Totonicapán Court of First Instance and that the
Commission should declare this petition inadmissible because the remedies
under domestic law had not been exhausted. 15.
In 1994 the State reported that Mr. Pedro Tau Cac: …
was a member of the Runujel Junam Ethnic Communities Council [Consejo de
Comunidades Étnicas Runujel Junam] (CERJ) and a member of the Civil
Patrols in 1988. As to the instant case, it was established that Mr. Pedro Tau Cac was indeed apprehended at around 7:00 a.m. on July 2, 1990, in the place known as Chabaj in the Racana Canton in the municipality of Santa María Chiquimula, department of Totonicapan, by a group of approximately ten heavily armed men. They were wearing masks and dressed in red and green uniforms similar to those worn by soccer players. At the time, Mr. Pedro Tau Cac was working his land in that area. José Pedro Tau Chivalan and María Tau Chivalan, children of the deceased, and Mr. Domingo Uz Lux, his son-in-law, went to the National Police in that department to file the proper complaint concerning the disappearance of Mr. Tau Cac. On July 4, 1999, the body of an unidentified male was found in the hamlet of Chicox, Rancho de Teja canton, municipality of San Francisco El Alto, department Totonicapan. The justice of the peace for the district went to the scene and ordered that the body be moved to the morgue of the local hospital. The deceased’s next-of-kin identified the body as that of Mr. Pedro Tau Cac. The next-of-kin did not file any complaint with the proper authorities at that time. The
forensic physician found signs of strangulation on the body; the feet and
hands had been tied. Mr. Pedro
Tau Cac died of asphyxiation by strangulation, fourth-degree closed thoracic
abdominal trauma. Also, a note was found in his left pant pocket stating the
following: “For betraying our
organization.” 3. CASE
11.198: José María Ixcaya et al
16.
In the instant case, a total of 12 extrajudicial executions were
alleged, all of which occurred between 1990 and 1991 in different places in
Guatemala. The material authors
in all the cases were alleged to be members of the PAC or military
commissioners. a. Facts
alleged José
María Ixcaya Pixtay 17.
José María Ixcaya Pixtay was the victim of extrajudicial execution in
Sololá on May 1, 1990. On the
day he was executed, José María Ixcaya left his home at around 5 a.m. He was headed for Guatemala City, where he was to participate
in a May Day demonstration. As he
was leaving his home, several men stepped out of the bushes and shot him,
killing him instantly. 18.
Prior to his death, Mr. Ixcaya Pixtay had been an active member of the
Runujel Junam Ethnic Communities Council [Consejo de Comunidades Etnicas
“ Runujel Junam“] (CERJ) and had received numerous death threats from Jesús
Chopen, chief of the local PAC, and Bernardino Samines, La Fe military
commissioner. Jesús Chopen
accused Ixcaya of being a guerrilla because he had resigned from the Civil
Patrol and because “people like Ixcaya who get involved in human rights are
the guerrilla movement’s chief mouthpiece.” 19.
Two days after the killing, Marcela Guarcax Morales, Ixcaya’s wife,
was told by witnesses that Jesús Chopen, Bernardino Samines, and two members
of the PAC, Gaspar Morales and Santos Vicente, were among the killers. 20.
Marcela Guarcax Morales reported her husband’s murder to the Human
Rights Ombudsman on May 9, 1990. Pedro
Ixcaya Cuc, José María’s cousin, also present on the day of the killing,
reported it as well. But because
of the complaint they had filed, Marcela Guarcax and Pedro Ixcaya received
multiple threats from Civil Patrolmen.[3] José
Vicente García 21.
José Vicente García, a member of the Runujel Junam Ethnic Communities
Council (CERJ), was the victim of an extrajudicial execution in San Pedro
Jocopilas, El Quiché, on April 10, 1990.
That day, José Vicente García had left home at 9:30 a.m., accompanied
by his wife, Juana Sarat Ixcoy, their son, Pedro Vicente Sarat, and his
sister-in-law, Cratina Ixchop Ixcoy. As
they were approaching the San Pedro/La Montaña line, two men appeared and
shot Vicente García four times in the head, killing him instantly.
The two men fired several more shots, threatening the family members
who were present. The death
certificate lists a skull fracture and cerebral hemorrhage as the cause of
death. 22.
For more than three years, Mr. Vicente García had been receiving death
threats from members of the local Civil Patrol (PAC), threats he had
repeatedly reported to the Human Rights Ombudsman.
Starting in 1987, Mr. García received a number of threats from
Francisco Ixcoy and Santiago Natareno, chief of the local PAC.
They accused him of being a guerrilla for refusing to serve in the PAC.
In 1987, Mr. García had been detained by members of the PACs and taken
to the San Pedro Jocopilas military base, where he was held for one day.
There he was accused of being a guerrilla and subsequently tortured.
On May 30, 1989, a group of men belonging to the PAC surrounded the
victim’s house and fired into the air as a way to intimidate him.
José Vicente García filed complaints with the office of the Ombudsmen
about every incident, but never received any response. 23.
On April 11, 1990, Juana Sarat Ixcoy, Catarina Ixchop Ixcoy, Pedro Pérez
López, and Cristóbal Uz López filed a complaint concerning the execution of
José Vicente but received no response. Mateo
Sarat Ixcoy 24.
Mateo Sarat Ixcoy was extrajudicially executed sometime around October
30, 1990. His death certificate
states that “multiple machete
wounds to the neck resulted in decapitation.” It appears that no official
investigation of the murder was ever conducted. 25.
Mateo Sarat Ixcoy, of San Pedro Jocopilas, was José Vicente García’s
friend; the same PAC members had frequently accused him of being a guerrilla,
just as they had accused García. After
the killing of Mr. Vicente García in April 1990, Mateo Sarat Ixcoy went to
the PAC office to confront Cristo Tau, chief of the PAC, about his friend’s
execution. Celestino
Julaj Vicente 26.
Mr. Celestino Julaj Vicente, a member of the Runujel Junam Ethnic
Communities Council (CERJ), was the victim of an extrajudicial execution on
June 28, 1991. On the date of the
extrajudicial execution, Julaj Vicente, his wife, María Lolmet Xam, and their
daughter, had been away from home all day. When the family returned home in
the evening, Celestino was attacked by an unknown assailant, who threw him to
the floor and shot him. 27.
Mr. Julaj Vicente had retired from the PAC on September 3, 1988.
Because of that, however, shortly thereafter he began receiving death
threats from Pedro López Ajiataz, chief of the local PAC. Miguel
Calel 28.
In San Pedro Jocopilas, El Quiché, Mr. Miguel Calel was
extrajudicially executed by members of the PAC on April 19, 1991. Before his
death, Mr. Calel had received death threats from members of the PAC because he
did not want to participate in these groups. Pedro
Raguez 29.
Pedro Raguez, of San Pedro Jocopilas, El Quiché, dropped out of the
Civil Patrols and moved to Guatemala City to avoid their harassment. He was killed by PAC chiefs on April 10, 1992, when he
returned to his town to visit his family. The complaint concerning his
execution was filed by Amilcar Méndez, but elicited no reaction. No official investigation has ever been conducted into this
case. No one has been indicted or
tried for the murder. Pablo
Ajiataz Chivalán and Manuel Ajiataz Chivalán 30.
On March 15, 1991, in Santabal I, in San Pedro de Jocopilas, El Quiché,
the brothers Pablo Ajiataz Chivalán and Manuel Ajiataz Chivalán were the
victims of extrajudicial execution. Prior
to their deaths, the two men had been harassed and had received repeated death
threats from the chief of the local PAC, who accused them of being guerrillas
because of their refusal to serve in the PAC. Catrino
Chanchavac Larios 31.
Mr. Catrino Chachavac Larios was decapitated in the hamlet of San
Pablo, San Pedro Jocopilas, El Quiché, on August 26, 1992.
Before his death, he had received death threats from the patrol chief
for the neighboring town, Santabal II, because of his refusal to serve in the
PAC. Miguel
Tiu Imul 32.
On November 30, 1991, Mr. Miguel Tiu Imul was the victim of an
extrajudicial execution, just 30 meters from his home in Canton de las
Montañas, Parraxtuut, Sacapulas. In July 1991, Miguel Tiu Imul had
stopped serving in the patrol because he was 65 and was no longer physically
fit for service. 33.
Imul’s family accused military commissioners and patrol chiefs
Domingo Castro Lux, Pedro Ixcotoyac, Juan Lux Castro and Juan de León Peres
of having committed the murder since they had sent him death threats in the
past. 34.
The PAC chiefs had harassed Mr. Tiu for years.
In July 1987 they and the military commissioners seized him and took
him to the Chiul military base where soldiers and officers tortured and
interrogated him for three days.
Two days later, 50 soldiers arrived at his home and beat him savagely. Camilo
Ajqui Gimon 35.
Camilo Ajqui Gimon, a member of the CERJ, was executed extrajudicially
in Zacualpa, on April 14, 1991. Three
unknown men took him from his home that day and killed him shortly thereafter.
Mr. Ajqui had once been a member of the PAC and since leaving had
received multiple death threats from PAC members because he had stopped
serving in the PAC and was a member of the CERJ. Juan
Tzunux Us 36. In Zacualpa on November 27, 1990, Mr. Juan Tzunux Us was extrajudicially executed by members of the local Civil Patrol. Mr. Tzunum Us had fled to the United States in the early 1980s because he had been accused of being a guerrilla and was in fear for his life and his personal safety. He was extrajudicially executed the very day he returned to Zacualpa from the United States. b.
Proceedings with the Commission
37.
The Commission opened case 11.198 on December 9, 1993. The petition alleged violations of the human rights of 77
people. The Commission forwarded
the pertinent parts of the petition to the State and requested relevant
information from it. On December
19, 1994, the State supplied general information on the case, which was
promptly forwarded to the petitioners. Guatemala
also pointed out that a case had already been instituted with the Commission
in the case of some of the persons named in this case. In April 1995, the
petitioners made general observations on the State’s response.
On June 14, 1995, the State reiterated its earlier response.
Since then, no new information has been forthcoming from the parties.
38.
On October 6, 1995, the Commission informed the parties that it had
decided to combine case 11.198 with cases that it was already hearing whose
facts were the same as the facts alleged in this case.
The cases in question were: case 10.857 (Manuel Ajtataj Chivalán and
Pablo Ajtataj Chivalan), case 10.874 (Miguel Calel) and case 10.909 (civilian
population of Canjabal). 39.
On December 9, 1998, the Commission requested additional information
from the parties and placed itself at their disposal with a view to reaching a
friendly settlement. The parties did not supply information and did not accept
the Commission’s offer. 40.
On December 8, 2000, the Commission, pursuant to Article 40 of its
Regulations, decided to divide case 11.198 in two: case 11.198(A) for
petitions alleging extrajudicial executions, and case 11.198(B) for those
alleging violations of a different nature.
c. The
State’s position 41.
On December 9, 1994, the State provided general information on the case
and made allusion to the origins and nature of the Civil Patrols and the role
they played within Guatemala’s armed internal conflict. Guatemala asserted
that: The
Government of Guatemala is petitioning the Inter-American Commission on Human
Rights to refuse to admit this case for the reasons explained herein and
because it does not meet the standard of exhaustion of domestic remedies. The
obligation to report the commission of a crime, stipulated in both Article 331
of the repealed Code of Criminal Procedure[4]
and Article 297 of the current Code of Criminal Procedure, was not fulfilled,
which is why the proceedings required under Guatemalan law were never
instituted. The petitioners filed a complaint concerning the alleged human rights violations with the Human Rights Ombudsman. However, they never exhausted the remedies under domestic law. “The Human Rights Ombudsman is appointed by the Congress to defend the human rights that the Constitution guarantees”[5] and “he has legal personality, is not subordinate to any organ, institution or official in this matter, and will act with absolute independence, except where the present law stipulates otherwise.”[6] In other words, while the Office of the Human Rights Ombudsman is an independent institution, it has no adjudicatory function since under the Constitution, that function is the exclusive and absolute purview of the Supreme Court of Justice and other courts that the law establishes. B.
Cases of attempted extrajudicial execution
1. CASE
10.799: Catalino Chochoy, José Corino Teshen and Abelino Baycaj a. Facts
alleged 42.
On January 31, 1991, one military commissioner and armed men in
civilian dress and driving vehicles with tinted glass, shot and seriously
wounded farm workers Catalino Chochoy, José Corino Teshen and Abelino Baycaj,
in the municipality of Santo Domingo Xenacoj, department of Sacatepéquez, in
an attempt to press them into military service.
Relatives and friends immediately took the wounded to the hospital in
Antigua Guatemala. According to
the petition, these facts were brought to the attention of the proper judicial
authorities and the local press. b. Processing
with the Commission 43.
The Commission opened case 10.799 on February 27, 1991, and forwarded
the pertinent parts of the petition to the State, with the request that it
supply relevant information. The State supplied the requested information on
September 9, 1991, which was promptly brought to the petitioners’ attention.
On January 8, 1993, the petitioners submitted their observations on the
State’s response. The State
supplied additional information on March 22, 1993 and March 29, 1994. 44.
On August 3, 2000, the Commission placed itself at the disposal of the
parties with a view to reaching a friendly settlement.
The parties did not accept the Commission’s offer. c. The
State’s position 45.
In its first communication (September 9, 1991), the State petitioned
the Commission to declare the case inadmissible.
It argued that the remedies of domestic law had not been exhausted
inasmuch as the facts alleged in the petition were the subject of criminal
inquiry number 184-91, currently before the Sacatepéquez Criminal Court of
First Instance. 46.
In its second communication (March 29, 1994), the State reported the
following: “The crime being prosecuted was determined to be severe battery.
The person charged with the crime was Juan Francisco Farelo Ortíz.
The Office of the State’s Attorney was present at the proceedings
because it had learned of the summary inquiry … Mrs. Catalino Chocoy and Mr.
Abelino Bayjac Chile, the aggrieved parties in the forced recruitment, stated
that they were shot by military commissioners, a fact corroborated in a
statement that eyewitnesses to the attack gave to the mayor of the town in
which the incident occurred. Although
on February 18, 1993, the judge hearing the case ordered the suspect taken
into temporary custody, thus far the State has been unable to apprehend the
person in question. At the
present time, the proceedings are in the investigative stage; prosecution of
the case will continue once the suspect is brought before the court by the
competent authority.” 2. CASE
10.751: Juan Galicia Hernández, Andrés Abelino Galicia Gutiérrez and
Orlando Adelso Galicia Gutiérrez a.
Facts alleged 47.
On November 25, 1990, in the hamlet of El Chiltepe, town of Buenos
Aires, department of Jutiapa, Mr. Juan Galicia Hernández and his sons Andrés
Abelino Galicia Gutiérrez (22) and Orlando Galicia Gutiérrez (15) were shot
and seriously wounded as they were working in the fields. Their assailants were PAC members in civilian dress, who
proceeded to ransack the Galicia Gutiérrez family home.
Family and friends immediately took the wounded to the regional
hospital at Cuilapa, Santa Rosa. The facts were reported to the proper
authorities and the press. b. Proceedings
with the Commission 48.
The Commission opened case 10.751 on December 12, 1990, and forwarded
the pertinent parts of the petition to the State, with the request that it
supply pertinent information. The
State’s response of August 28, 1991, was promptly forwarded to the
petitioners. On August 11, 1993,
the petitioners sent their observations to the State’s response.
Additional information was requested from the State on August 20,
1993, September 25, 1995, and April 3, 1996, but it never responded. 49.
On August 3, 2000, the Commission placed itself at the disposal of the
parties with a view to reaching a friendly settlement.
The parties did not accept the Commission’s offer. c. The
State’s position 50.
In its first and only communication (August 28, 1991), the State
petitioned the Commission to declare the case inadmissible on the grounds that
the remedies under domestic law had not been exhausted.
It stated that the facts reported in the petition were being
investigated by the Second Court of First Instance of the department of
Jutiapa, as case 2715/90. The
inquiry was instituted pursuant to a complaint filed on December 11, 1990, in
which Mr. Raquel Hernández García was directly accused of being the guilty
party. After this initial brief
response, no further information from the State was forthcoming. 3. CASE
10.901: Antulio Delgado a. Facts
denounced 51.
Military commissioners shot and seriously wounded Mr. Antulio Delgado
at his home in San Rafael Pie de la Cuesta, San Marcos, May 29,
1991. Family members took Mr.
Delgado to the San Marcos hospital immediately. The day before the attempt on
his life, the court had ordered the victim’s release when he was arrested
and jailed by the very same military commissioners who then attempted his
extrajudicial execution. A
complaint was filed with the proper authorities and the events were reported
to the press. b. Proceedings
with the Commission 52.
The Commission opened case 10.901 on June 18, 1991. It forwarded the pertinent parts of the petition to the State
and asked that the latter supply relevant information. The Commission repeated
its request on March 5, 1992 and December 9, 1998.
The State has never supplied the requested information. 53.
On December 9, 1998, the Commission placed itself at the disposal of
the parties with a view to reaching a friendly settlement, but the offer was
not accepted. c. The
State’s position 54. Guatemala never supplied information on this case. III. ADMISSIBILITY A.
Competence 55. The Commission has prima facie competence to take up the petitions in question. At the time the facts recounted in the petitions were alleged to have occurred, the obligation to respect and ensure the rights recognized in the American Convention was already incumbent upon the State.[7] B.
Admissibility requirements 1.
Exhaustion of the remedies under domestic law and time periods for
filing petitions 56.
Article 46 of the American Convention stipulates that for a case to be
admitted, “the remedies under domestic law [must] have been pursued and
exhausted in accordance with generally recognized principles of international
law.” It further stipulates a number of exceptions to the rule when domestic
remedies are not available either as a matter of law or as a matter of fact.[8] 57.
To mount a valid challenge to the admissibility of a petition, the
State in question must promptly and expressly invoke the standard of
exhaustion of remedies under domestic law.
Under principles of international law and international practice, the
standard of prior exhaustion “is a prerequisite established in favor of the
State, which may waive its right, even tacitly, and this occurs, inter alia, when it is not timely invoked.”[9] 58.
In the various combined cases covered in this report, the State’s
contention is that the Commission should declare them inadmissible either
because the allegations made are already before the domestic courts or because
no complaint was ever filed with the proper local authorities, from which it
infers that in none of the hypothetical situations posited were the remedies
under domestic law exhausted as required under Article 46 of the American
Convention. 59.
For their part, when they filed their petition with the Commission the
petitioners argued that the exceptions allowed to the rule requiring
exhaustion of domestic remedies applied since in “Guatemala, it is extremely
difficult, if not impossible, to obtain legal redress in cases that concern
human rights violations, like the ones presented here.
The judiciary has shown no political inclination to prosecute those who
commit such abuses.” The
petitioners further note that in those cases that were reported to the
judicial authorities, remedies have been ineffective. 60.
Because the parties differ as to the need to exhaust the remedies under
domestic law and the pertinence of those remedies, the analysis of exhaustion
of domestic remedies must focus on whether the facts alleged are covered by
any of the exceptions allowed under Article 46(2) of the American Convention
to the rule requiring exhaustion of local remedies. 61.
Article 46(2) of the Convention provides that the exception will apply
if the domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly been
violated; if the party alleging violation of his rights has been denied access
to the remedies under domestic law; or if there has been unwarranted delay in
rendering a final judgment under the aforementioned remedies. 62.
As noted earlier, the State’s position is that some of the cases
should be declared inadmissible because they are still before the domestic
courts for adjudication. 63.
The information in the Commission’s possession indicates that in some
of the cases covered in this report, petitions filed with the Guatemalan
courts languished there for nine to ten years before a formal criminal inquiry
was instituted. Nor is there any
record of a final judgment being handed down establishing the facts,
determining blame and giving the affected parties redress.
The amount of time that has passed since these criminal proceedings
were instituted necessarily raises the question of the unwarranted delay
referred to in Article 46(2)(c). While
every criminal investigation poses requirements unique to it, “[t]he rule of
prior exhaustion must never lead to a halt or delay that would render
international action in support of the [alleged] defenseless victim
ineffective…”[10].
As a general rule, a criminal investigation must be conducted swiftly,
not just to protect the victim’s interests but also to safeguard the rights
of any person who might become a suspect during the course of the
investigation. The Commission
considers that the time elapsed since proceedings were instituted in the cases
filed with the courts qualifies them for the unwarranted delay exception
allowed under Article 46. 64. Another factor that has to be considered is whether, at the time the events in question occurred, judicial remedies were available in Guatemala that were effective in addressing complaints of human rights violations, especially violations of the right to life. Yet another factor is how, on the whole, the Guatemalan judiciary at that time responded to cases of human rights violations. [ Table of Contents | Previous | Next ] [1]
Commission member Marta Altolaguirre, a Guatemalan national, did not
participate in the discussion and vote on this report, in keeping with
Article 19(2) of the Commission’s Regulations. [2]
The Commission wishes to note that case 11.198 was divided in two on
December 8, 2000.
Thus, case 11.198(A) concerns the denunciations of extrajudicial
executions, while 11.198(B) concerns denunciations of a different nature. [3]
For example, Pedro Ixcaya Cuc began receiving threats immediately after
reporting the murder of his cousin, José María Ixcaya.
Jesús Chopen and Bernardino Samines went to the Office of the
Human Rights Ombudsman after Pedro Ixcaya filed his complaint on May 14,
1990. They wanted information about the complaint and were told that
Ixcaya Cuc had submitted a list of 38 people involved in his cousin’s
extrajudicial execution.
After visiting the Ombudsman’s office, Chopen and Samines called
a meeting of the 38 persons whose names were on the list, along with other
people and Army personnel.
At the meeting, Chopen, Samines and others spoke against Pedro
Ixcaya Cuc, saying he was bad and a guerrilla.
Many of those at the meeting then went and surrounded Pedro
Ixcaya’s house, although he was not at home at the time.
On May 30, members of the local Civil Patrol called a meeting to
discuss the matter of Pedro Ixcaya.
There, CERJ members were interrogated and admitted that Ixcaya had
sought refuge in the CERJ offices in El Quiché.
After the meeting, Domingo Cuc Ixcaya and José Pax and the La Fe
military commissioners went to El Quiché to pick up Pedro Ixcaya. [4]
Congressional Decree 52-73, the law in effect as of the date the facts
alleged were committed. [5]
Article 273 of the Constitution of the Republic. [6]
Article 8 of the Congressional Human Rights Commission and Human Rights
Ombudsman Act. [7]
Guatemala ratified the American Convention on Human Rights on May 25,
1978. [8]
See IACtHR, Exceptions to the exhaustion of domestic remedies (Art. 46(1),
46(2)(a) and 46(2)(b) American Convention on Human Rights), Advisory
Opinion OC-11/90 of August 10, 1990, Ser. A No. 11, para. 17. [9]
IACtHR, Fairen Garbi and Solís Corrales Case (Merits), Judgment of March
15, 1989, Ser. C No. 6, para. 109.
See also, inter alia, Viviana Gallardo et al Case, Judgment of November 13,
1981, Nº 101/81, Ser. A, para. 26; Velásquez Rodríguez Case,
Preliminary Objections, Judgment of June 26, 1987, Ser. C
Nº 1, para. 88;
Fairén Garbi and Solís Corrales Case, Preliminary Objections, Judgment
of June 26, 1987, Ser. C No. 6, para. 87; Godínez Cruz Case, Preliminary
Objections, Judgment of June 26, 1987, Ser. C No. 3, para. 90; Gangaram
Panday Case, Preliminary Objections, Judgment of December 4, 1991, Ser. C
No. 12, para. 38; Neira Alegría et
al Case, Preliminary Objections, Judgment of December 11, 1991, Ser. C
No. 13, para. 30. [10]
IACtHR, Velásquez Rodríguez Case, Preliminary Objections, supra,
para. 93; Fairén Garbi and Solís Corrales Case, Preliminary Objections, supra, para. 92; Godínez Cruz Case, Preliminary Objections, supra,
para. 95. |