Miguel Orlando Muñoz Guzmán, Case 12.130, Report No. 106/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 327 (2000).
MIGUEL ORLANDO MUÑOZ GUZMÁN
December 4, 2000
On March 1, 1999, the Inter-American Commission on Human Rights (hereinafter
the Inter-American Commission or the IACHR) received
a petition filed by María Guadalupe Muñoz Guzmán and the Mexican Commission
for the Defense and Promotion of Human Rights (jointly the petitioners),
in which it was alleged that the United Mexican States (hereinafter the
State) bore international responsibility for the forced disappearance
of Miguel Orlando Muñoz Guzmán, as well as for its subsequent failure to
investigate and provide compensation for the said acts. The petitioners
allege that the acts that are the subject of the complaint violate several
of the rights enshrined in the American Convention on Human Rights (hereinafter
the American Convention), namely, the right to life (Article
4); right to humane treatment (Article 5); right to personal liberty (Article
7); right to a fair trial (Article 8); and right to judicial protection
(Article 25), in accordance with the general obligation provided for in
Article 1(1) of the aforementioned international instrument.
According to the petition, Mr. Miguel Orlando Muñoz Guzmán, a lieutenant
in the Mexican army, disappeared on May 8, 1993, at the age of 25. His fellow
soldiers in the 26th Battalion of Ciudad Juárez, state of Chihuahua, Mexico,
just before he went on leave last saw him on that date. The petitioners
state that Lieutenant Muñoz Guzmán has not communicated with them since
the date of his disappearance and that he was a dedicated career officer,
a fact that lent no credibility to the armys official version of events,
which was that he had deserted from the army and traveled to the United
States. The petitioners further state that they contacted the military authorities
on numerous occasions and also filed the appropriate complaint but that
to date no serious investigation has been carried out in Mexico to ascertain
his whereabouts and to punish those responsible for his forced disappearance.
They argue that the irregularities surrounding this caseincluding
falsification of Lieutenant Muñoz Guzmáns signature in a document
that was used to prove his alleged interest in desertinghave been
deliberate and intended to cover up for those responsible. They also allege
that they began to receive anonymous threats, which they attribute to military
personnel, from the time that they brought the complaints.
The State maintains that a serious investigation has been carried
out in Mexico and that it produced no evidence whatsoever that Orlando Muñoz
Guzmán might have been the victim of criminal acts committed by members
of the army or other agents of the State.
Based on the foregoing, the State is requesting the IACHR to declare
the case inadmissible on the grounds that domestic legal remedies have not
been exhausted and that no violations of human rights have taken place.
Without prejudice to the substance of the complaint, the IACHR concludes
in this report that the petition is admissible, since it meets the requirements
set out in Articles 46 and 47 of the American Convention.
Consequently, the Inter-American Commission decides to notify the
parties of its decision and to continue its substantive consideration of
the alleged violations of Articles 4, 5, 7, 8, and 25 of the American Convention.
PROCESSING BY THE COMMISSION
The Inter-American Commission assigned case number 12.130 to the
petition and requested information from the State of Mexico in response
to the pertinent parts of the petition of April 12, 1999.
The States response was submitted on July 12, 1999, and supplemented
by additional information on August 4 of the same year. On October 1, 1999, a communication was received in which the
Center for Justice and International Law (CEJIL) was included as a co-petitioner
and observations on the information provided by the State were submitted.
The IACHR transmitted the observations to the State on October 20,
1999. The State submitted the required information on November 18, 1999,
the pertinent parts of which were transmitted to the petitioners on December
2, 1999. After an extension that had been requested by the petitioners and
granted by the Inter-American Commission, on March 10, 2000, the petitioners
submitted their observations, which were forwarded to the State on March
23, 2000. On May 1, 2000, the
IACHR granted the State an extension of 30 days within which to provide
information. The information was submitted on June 1, 2000, and communicated
to the petitioners on June 6 of the same year.
On October 10, 2000, a hearing was held on the petition at the headquarters
of the General Secretariat of the OAS, at which updated information was
received on the positions of the parties regarding the admissibility and
substance of the petition. María Guadalupe Muñoz Guzmán and Mrs. María Guadalupe
Guzmán Romo, the sister and mother, respectively, of the alleged victim,
participated in the hearing.
POSITIONS OF THE PARTIES
The petition received by the IACHR alleges that Miguel Orlando Muñoz
Guzmán was the victim of a forced disappearance, presumably at the hands
of members of the Mexican army. With
regard to the facts of the case, the petitioners allege the following:
May 8, 1993, no news or information has been received about the whereabouts
of Lieutenant Muñoz. While
army communications allege that he deserted, his family refutes this contention
because he has never contacted them since. They claim, moreover, that if
he deserted this meant that he did so empty-handed since he left all his
belongings behind in the barracks. Since his disappearance, the army has
treated the case as a desertion and has refused to carry out a serious investigation
of the acts, despite the request of his family and the evidence that suggests
that Muñoz could have been made to disappear by members of the
the time of his disappearance, Muñoz was a member of the 26th
Battalion, which was headquartered in Ciudad Juárez, Chihuahua. He had arrived
six months before from Nuevo Laredo, Tamaulipas, where he had received his
commission. Mr. Muñoz disappeared on May 8, 1993, one and a half months
after returning from a vacation with his family.
the day of his disappearance Mr. Muñoz spoke with his parents by telephone
from the military barracks. During the conversation, he told them how happy
he was because he would shortly be taking his examinations to enter the
War College (Escuela Superior de Guerra).
Muñoz Guzmán family, from San Julián, Jalisco, first became suspicious about
his disappearance on May 10, 1993, because he did not call as he had promised
them he would two days previously.
Up to May 16, the family telephoned the Battalion and was told that
Orlando had deserted. On May 18, Orlandos parents went
to the headquarters of the Battalion in Ciudad Juárez and were again told
that Orlando had deserted.
Regarding the investigation, the petitioners allege that the various
instances that took action in Mexico were inefficient and inadequate. They
claim, for example, that the Military Judicial Police drew up a document
on May 11, 1993, implicating Lieutenant Muñoz Guzmán as it considers
him to be the probable perpetrator of the crime of desertion.
This was done although his family had explained to the military authorities
why they thought it unlikely that he had deserted, since he was an honorable
and dedicated soldier and it would be more useful to investigate a captain
by the name of Morales García, who had frequently and unjustifiably punished
Mr. Muñoz Guzmán. The Office of the Military Prosecutor initiated a Preliminary
Investigation No. SC/139/93-V of the alleged desertion of Muñoz Guzmán,
whose file was declared closed on March 22, 1995, and handed over to the
Office of the Public Prosecutor of Chihuahua (PGJ).
In addition, the petitioners on July 14, 1993 contacted the Mexican
National Human Rights Commission (CNDH) and filed a complaint
over the disappearance of Miguel Orlando Muñoz Guzmán. According to the
petitioners, the CNDH informed them in 1997 that it would not be possible
to make a recommendation because the Office of the Public Prosecutor of
Chihuahua had lost the file.
On June 7, 1993, the family of lieutenant Muñoz Guzmán filed a request
for amparo in the lower criminal
court of the state of Jalisco, which was rejected on the grounds that the
application failed to indicate the place of detention or the authorities
who were allegedly responsible.
In sum, the petitioners contend that the domestic legal remedies
available in Mexico are ineffective in investigating the acts, determining
the whereabouts of Miguel Orlando Muñoz Guzmán, and remedying the consequences
of the violations alleged. They argue in that connection that the investigation
has undergone an unwarranted delay, that it has depended exclusively on
the activity of the victims to move the process forward, and that from the
outset it has been doomed to failure.
For its part, the State of Mexico alleges that Lieutenant Muñoz Guzmán
was not on duty or wearing his military uniform at the time of his alleged
disappearance and that therefore investigation of the acts was essentially
a civilian responsibility. It reviews the action taken by the Office of
the Military Prosecutor and then by the Office of the Public Prosecutor
of Chihuahua, which issued the reservation agreement in the
file of September 5, 1995, on grounds that no evidence whatsoever
had been found to support the presumption that a crime had been committed
against Mr. Muñoz. Lastly, it notes that the CNDH has opened a file
on this case as part of its Program on Alleged Disappearances.
The State of Mexico alleges that:
investigating authorities have carried out their work in a serious manner.
No evidence emerges from these investigations or from the statements of
the petitioners that Orlando Muñoz may have been the victim of a crime committed
by army personnel or by any public servant.
far, moreover, no evidence exists of the threats that the family of Miguel
Orlando Muñoz is alleged to have received or that these threats might have
been made by public servants.
regard to the request for amparo
that has been filed, that remedy applies in cases of detention or illegal
deprivation of freedom, in which the authorities are involved. It is for
these reasons that amparo was
not the appropriate remedy in this case and that the decision of the court
to disallow it was proper.
On the basis of these arguments, the Mexican State maintains that
the family of Mr. Muñoz should have filed an appeal for review of the decision
of the judge who dismissed the request for amparo
if they were not in agreement with it. The State is of the view that, since
the petitioners did not appeal the aforementioned decision, they had no
right to question the effectiveness of the remedy of amparo
in the present case. It adds that it has fulfilled its responsibility to
indicate the appropriate domestic legal remedy available to the petitioners,
but that the petitioners have not demonstrated the ineffectiveness of that
remedy or the applicability of the exceptions provided for in the American
The State declares its willingness to continue with such investigations
as may be necessary to determine the whereabouts of Miguel Orlando Muñoz
and, as the case may be, whether any public officials or army personnel
were involved in any way. It then states that the investigations
of the case in civil court have provided no evidence to support such a finding
and have suggested, on the contrary, the likely participation of Mr. Muñoz
in the commission of a number of crimes.
Lastly, the State of Mexico contends that the allegations contained
in the petition do not constitute violations of the human rights set out
in the American Convention and that domestic legal remedies have not been
exhausted. Consequently, it requests the IACHR to declare the case inadmissible.
ratione personae, ratione materiae,
ratione temporis, and ratione loci of the Inter-American Commission
The written arguments in this case describe acts which, if proven,
would constitute violations of several of the rights recognized and enshrined
in the American Convention and which are alleged to have occurred within
the territorial jurisdiction of Mexico, at a time when the obligation to
respect and guarantee all the rights set out in that instrument was in force
for the said State.
Consequently, the IACHR is competent ratione
personae, ratione materiae, ratione
temporis, and ratione loci to hear the substance of the complaint.
Other requirements for the admissibility of the petition
Exhaustion of domestic legal remedies
The Inter-American Court of Human Rights has provided the following
regarding the rule governing the prior exhaustion of domestic legal remedies:
Parties have an obligation to provide effective judicial remedies to victims
of human rights violations (Art. 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 in the Convention to all persons
subject to their jurisdiction (Art. 1).
The information provided by the two parties in the present case is
consistent with regard to the fact that a military investigation was launched
and then closed and transferred to the general jurisdiction. The Office
of the Public Prosecutor of Chihuahua subsequently launched its preliminary
investigation of the acts alleged, closed the file in 1995 for lack of evidence,
and reopened it to investigate the theft of a briefcase belonging to Miguel
Orlando Muñoz Guzmán. In that investigation, the Office of the Public Prosecutor
decided to institute criminal proceedings against two officers who had forged
documents in order to conceal the disappearance of the above mentioned briefcase.
The State of Mexico alleges that not all domestic legal remedies
have been exhausted and refers in that connection to the military investigations,
the investigations of the Office of the Public Prosecutor of Chihuahua,
and the investigations carried out by the CNDH which include the study of
the remains discovered in Ciudad Juárez, Chihuahua, in late November 1999.
The petitioners allege that the domestic legal remedies are ineffective,
but that they have nevertheless used all possible means to ascertain the
whereabouts of Lieutenant Muñoz Guzmán. They claim that the authorities
are not conducting the investigations in an effective manner, but as isolated
questions, thus making it impossible to establish the facts. They also express
concern that the State is not exploring the relationship between crimes
against health (drug trafficking), the acts of forgery that were investigated,
and the disappearance of Miguel Orlando Muñoz Guzmán.
The Commission considers that the family of Mr. Muñoz Guzmán had
access to the legal remedies that were available under the domestic jurisdiction
in Mexico and that they used them in a timely and proper manner. Thus far,
however, those remedies had not operated with the effectiveness required
to investigate a complaint of forced disappearance, which constitutes a
serious violation of human rights. Indeed, more than seven years have passed
since the first complaint was made to the authorities in Mexico without,
up to the date of the adoption of this report, any definitive determination
of how the events occurred. These questions will be examined during the
appropriate stage of the proceeding, together with the other submissions
concerning rights to a fair trial and to judicial protection.
The Inter-American Commission concludes that for a number of reasons
it has not been possible to exhaust the domestic legal remedies available
in Mexico, despite the fact that more than seven years have elapsed since
the acts took place and were denounced to the authorities responsible for
investigating them. Consequently, the IACHR applies to the present case
the exception provided for in the second part of Article 46 (2) (b) of the
American Convention. The causes and effects that prevented the exhaustion
of the domestic remedies will be examined in the report to be adopted by
the IACHR on the substance of the complaint, in order to determine whether
violations of the American Convention have taken place.
Deadline for submission of the petition
The Commission has noted in this case that, after more than seven
years, no definitive ruling has been made on the alleged forced disappearance
of Miguel Orlando Muñoz Guzmán and has established that this constitutes
unwarranted delay in rendering a judgment under the domestic remedies. Since
Article 46(2)(c) of the American Convention is being applied to this case,
there is no need to examine the requirement of Article 46(1)(b) of the aforementioned
international instrument. The
Inter-American Commission is of the view that, under the circumstances examined,
the petition was presented within a reasonable period from the date on which
the acts had been denounced in Mexico.
Duplication of procedures and res
The exceptions provided for in Articles 46(1)(d) and 47(d) of the
American Convention have not been objected to by the Mexican State nor do
they derive from the information contained in the file on the present case.
Characterization of the acts alleged
The Inter-American Commission considers that, should they be proven,
the acts alleged would constitute violations of the rights guaranteed in
Articles 4, 5, 7, 8, and 25 of the American Convention.
The Inter-American Commission concludes that it has competence to
hear this case and that the petition is admissible in accordance with Articles
46 and 47 of the American Convention.
Based on the arguments of fact and of law set out above and without
prejudice to the merits of the question,
INTERAMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible insofar as it involves alleged
violations of rights protected in Articles 4, 5, 7, 8, and 25 of the American
To notify the parties of this decision.
To continue its deliberation on the substance of the question, and
To publish this decision and to include it in its annual report to
the General Assembly of the Organization of American States.
Done and signed by the Inter-American Commission on Human Rights in the city of Washington, D.C., on December 4, 2000. (Signed): Hélio Bicudo, Chairman; Juan E. Méndez, Second Vice-Chairman; Members: Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Communication from the petitioners dated February 24, 1999, pp. 1 and
The State of Mexico deposited its instrument of ratification of the
American Convention on April 3, 1982.
Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment
on Preliminary Objections, June 26, 1987, paragraph 91.
In this regard, the State of Mexico explains as follows:
is also alleged that there were several contradictions regarding the
briefcase owned by Orlando Muñoz Guzmán and which was claimed by the
family members. This was indeed true and was one of the reasons for
the reopening of investigation SC/139/93/V, filed under number SC/003/98-E.
That investigation determined that the briefcase did exist and had been
misplaced. However, a document was prepared to certify that the briefcase
did not exist in the full knowledge that a false statement was being
made, and this was the reason why First Infantry Captain Víctor Gallegos
Bernardino and a lieutenant from the same branch, Filiberto Ortiz Ibáñez,
were charged on suspicion of having forged documents, as provided for
in Articles 243 and 244, section VII, of the Federal Criminal Code.
from the State, dated November 19, 1999, p. 5.
The Inter-American Court has provided in this regard as follows:
certain exceptions to the rule of non-exhaustion of domestic remedies
are invoked, such as the ineffectiveness of such remedies or the lack
of due process of law, not only is it contended that the victim is under
no obligation to pursue such remedies, but, indirectly, the State in
question is also charged with a new violation of the obligations assumed
under the Convention. Thus,
the question of domestic remedies is closely tied to the merits of the
Court of Human Rights, Velásquez Rodríguez Case, Judgments on Preliminary
Objections cited above, paragraph 91.