Francisco Guarcas Cipriano v. Guatemala, Case 11.275, Report Nº 140/99, OEA/Ser.L/V/II.106 Doc. 3 rev. at 884 (1999).
December 21, 1999
On March 7, 1994, the Inter-American Commission on Human Rights (hereinafter
"the Commission") received a communication denouncing the October
19, 1993 disappearance of Francisco Guarcas Cipriano, a member of the Mutual
Support Group (Grupo de Apoyo Mutuo
(hereinafter “GAM”)) and a native of the Cantón
Semejá in Chichicastenango. The
petitioners, the GAM and the Center for Justice and International Law (CEJIL),
reported that a GAM member had seen Mr. Guarcas the day of his disappearance,
at approximately 20:00 hours, near the bus terminal in Zone 4 of Guatemala
City, accompanied by four men--collaborators in the Civil Self-Defense Patrols
(hereinafter “PAC’s”) and members of the G-2 branch of Army intelligence.
The petitioners alleged that the men had tricked Mr. Guarcas into going
with them by inviting him to a party.
The victim had neither been seen nor heard from since that time.
At the time of his disappearance, Mr. Guarcas was 38 years old and
the father of seven children.
The petitioners reported that, just days before his disappearance,
Mr. Guarcas had decided to renounce his service in the PAC's, and had thereafter
received numerous threats. Other
members of the community who had renounced service in the local PAC’s had
reportedly been visited by members of the armed forces who pressured them
to return to PAC service. The
petitioners alleged that Mr. Guarcas was disappeared by Miguel Xiloj Mejía,
a member of the PAC’s and the G-2 intelligence service of the armed forces
who operated in the Cantón of Semejá
monitoring the local population and obliging them to perform PAC service.
Family members searched for Mr. Guarcas in hospitals and in various
detention centers, without any success.
The petitioners submitted copies of: a writ of exhibición
personal [a form of habeas corpus],
dated October 29, 1993, filed on behalf of Mr. Guarcas before the First Court
of First Instance, Criminal Branch, by the GAM, registered as received by
the Secretariat of the Supreme Court of Justice; a writ of habeas corpus, dated November 3, 1993, filed before the Second Judge
of First Criminal Instance, and registered as received; and a complaint dated
November 4, 1993, filed by the victim's son with the Office of the Ombudsman
for Human Rights.
The petitioners submitted that the Republic of Guatemala (hereinafter
“the State of Guatemala,” “State,” or “Guatemala”) is responsible for the
disappearance of Francisco Guarcas Cipriano, and for its failure to respond
with appropriate measures to investigate and establish his whereabouts, and
to submit those responsible to the corresponding measures of prosecution and
punishment, in violation of Articles 4, 5, 7, 8, 16, 25 and 1(1) of the American
The Commission dealt with the admissibility of the present case in
Report 22/98, approved on March 2, 1998.
The petitioners had argued that the remedy most pertinent in the case
of a forced disappearance, the writ of exhibición
personal, had been invoked and exhausted without achieving the required
results. While the State had not controverted that Mr. Guarcas had been
disappeared, it had argued that: its authorities had properly processed the
writs of habeas corpus filed; the
petitioners had failed to exhaust the available remedy of averiguación; and that, following a period of inactivity, its authorities
were continuing to effectuate the measures of investigation available under
The Commission analyzed the information before it in relation to the
requirements of admissibility in the individual case system, and determined
For the purposes of admissibility … the petitioners invoked and exhausted the appropriate domestic remedy [habeas corpus] designed to correspond to an alleged forced disappearance. The Commission will turn to the substantive considerations with respect to the adequacy and timeliness of the measures of investigation undertaken in this case in its decision on the merits.
Commission transmitted Report 22/98 declaring the case admissible to the parties
on March 13, 1998, and placed itself at their disposal for the purpose of
seeking a friendly settlement if the parties wished to avail themselves of
that procedure. As indicated
in section IV.A, infra, the parties
did not accept this procedure.
On the basis of the analysis set forth in the present report, the Commission
decided that the State of Guatemala is responsible for violations of the rights
to life, humane treatment, personal liberty, and recognition as a person before
the law, as well as to judicial guarantees and protection, established in
Articles 4, 5, 7, 3, 8 and 25 of the American Convention on Human Rights with
respect to the forced disappearance of Francisco Guarcas Cipriano, as well
as for having failed to uphold its Article 1(1) obligation to respect and
ensure those rights under the Convention.
As a consequence, the Commission recommended that the State carry
out a complete, impartial and effective investigation to determine the circumstances
of the forced disappearance of Francisco Guarcas Cipriano and to sanction
those responsible in accordance with domestic law, and that it adopt the measures
necessary to ensure that the victim’s family members receive fair and prompt
reparation for the violations established.
PROCESSING BEFORE THE COMMISSION
The proceedings before the Commission prior to the March 2, 1998 adoption
of Report 22/98 are recounted therein and need not be repeated here.
Pursuant to that decision, and prior to the transmission of that report
to the parties, the State submitted a brief response to the petitioners’ filing
of January 8, 1998, indicating that the First Court of First
Criminal Instance, Narcoactivity and Crimes against the Environment
(hereinafter “First Court of First Criminal Instance”) had ordered the detention
of the accused, Miguel Xiloj Mejía, who had subsequently been ordered released
due to “lack of merit” by the Sixth Court of First
Criminal Instance, Narcoactivity and Crimes against the Environment (hereinafter
“Sixth Court of First Criminal Instance”).
The State reported that measures had been taken to join criminal processes
2335-94 and 486-94, and reiterated its arguments that domestic remedies had
yet to be exhausted. This information
was transmitted to the petitioners with observations requested within 30 days.
In a note of April 14, 1998, the State reported that, pursuant to its
investigations, more than one person had been identified as bearing the name
of the victim. Because the judicial
processes initiated by the victim’s family did not identify him with sufficient
precision, it was continuing efforts to clarify his identity.
The State indicated that, as domestic remedies had not been exhausted,
it could not state a position with respect to the friendly settlement procedure.
This information was transmitted to the petitioners on April 24, 1998,
with observations requested within 30 days.
June 10, 1998, the petitioners requested additional time to provide observations.
On June 18, 1998, they submitted those observations, reiterating their
position that domestic remedies had been exhausted to the extent required,
summarizing their arguments on the merits of the case, and annexing a copy
of the birth certificate of the victim.
This information was transmitted to the State on July 30, 1998, with
observations requested within 30 days.
means of a note of August 31, 1998, the State submitted brief observations
on the status of the domestic proceedings, noting that these had not established
the responsibility of any of its agents for the disappearance of the victim.
This information was transmitted to the petitioners on September 30,
1998, with observations requested within 30 days.
November 7, 1998, the petitioners submitted their final observations, which
were transmitted to the State on January 26, 1999, with any response or additional
information requested within 30 days.
POSITIONS OF THE PARTIES
The position of the petitioners
The petitioners contend that the State of Guatemala is responsible
for the October 19, 1993 disappearance of Francisco Guarcas Cipriano, as well
as for its failure to respond with appropriate measures to investigate and
establish his whereabouts or fate, and submit those responsible to the corresponding
measures of prosecution and punishment, in violation of Articles 4, 5, 7,
8, 16, 25 and 1(1) of the American Convention.
They allege that Mr. Guarcas was disappeared shortly after renouncing
service in the PACs. They note
the role of the PACs during the period in question, and the reprisals suffered
by those who opposed or refused to participate in them.
They cite the findings of the Inter-American Court of Human Rights
in the case of Blake v. Guatemala
(cited infra) in support of the
position that PAC members acted as State agents.
Witnesses had attested that the victim had been threatened by members
of the PACs as a result of renouncing his service, and because of his affiliation
with the GAM, and that he had last been seen in the company of PAC members.
The petitioners allege that one of those accused, Miguel Xiloj Mejía,
was a PAC member and member of Army intelligence.
They contend that, because the victim was disappeared due to his decision
to renounce PAC service, the State is responsible for the violation of Mr.
Guarcas’ right to association.
The petitioners argue that, even had the intervention of State agents
not been demonstrated in his disappearance, the State is responsible for having
failed to investigate, prosecute and punish those responsible for Mr. Guarcas’
disappearance. They maintain
that the State failed to undertake an effective investigation designed to
establish what happened to Mr. Guarcas.
They contend that the habeas
corpus writs filed by the family on behalf of the victim, on October 29,
1993, November 3, 1993, and June 23, 1997 were ineffective.
They further indicate that the victim's family had denounced the disappearance
before the First Court of First Instance of Criminal Sentencing on June 20,
1994, before the Public Ministry on September 12, 1994, and before the Ombudsman
for Human Rights on November 4, 1993 and June 1, 1995, without having obtained
any positive results. They maintain
that, once the initial writ of habeas
corpus had been unsuccessful, the Public Ministry and judiciary were charged
with undertaking an investigation de
oficio, a duty they had failed to discharge. As a result of these deficiencies
in the administration of justice, the petitioners contend that the family
members of the victim have been denied their right to justice under Articles
8(1) and 25 of the American Convention. With respect to the question raised
by the State as to the victim’s identity, the petitioners submitted a copy
of his birth certificate and indicated that this had clearly been available
to the State through its own records.
The petitioners indicate that, because the State failed to guarantee
the effective enjoyment of the foregoing rights, it is in breach of its Article
1(1) undertakings. They
maintain that the responsibility of the State for these violations requires
measures of reparation, including just indemnification, as well as the continuation
of the criminal investigation so that those responsible will be punished.
The position of the State
The State maintains that the petitioners have failed to exhaust available
domestic remedies, and that its relevant authorities continue to effectuate
the measures of investigation available under the law.
In terms of the measures effectuated, the State indicates that in the
spring of 1996 several declarations were taken. On September 10, 1996, the First Court of First Criminal Instance
ordered accused Miguel Xiloj Mejía to appear to provide a declaration, and
subsequently ordered him arrested on October 3 and December 16, 1997.
The matter was then reportedly transferred to the Sixth Court of First
Instance. The State’s reports
indicate that, when questioned, the accused denied any involvement in the
disappearance of Mr. Guarcas, and that, at some time prior to January 29,
1998, the Sixth Court of First Instance had ordered the accused released for
“lack of merit.” The State reported
in its April 14, 1998 filing that its records identified three persons as
bearing the name of the victim, and that, as neither of the two criminal processes
initiated by the Guarcas family had identified the victim with sufficient
precision, its authorities were continuing efforts to definitively establish
State contends that it has taken measures to make the criminal investigation
process more efficient by seeking the joinder of the two processes initiated
by the victim’s family members. On
December 18, 1997, the Sixth Court of First Criminal Instance reportedly ordered
the joinder of process 486-94 before the First Court of First Criminal Instance
to process 2335-94. In its final
submission, the State indicated that the measures to make that joinder effective
were pending, as were measures to continue the investigation.
respect to both the exhaustion and the efficacy of domestic remedies, the
State maintains that the family members of the victim exercised their right
to invoke domestic remedies without hindrance, and the nature of the outcome
as negative or positive did not discount the validity of the procedures.
The authorities had processed the writs as required, and received the
necessary collaboration from the functionaries concerned. Further, the State argued that the petitioners should have
invoked the recourse of averiguación.
While acknowledging that criminal process 486-94 had been subject to
a period of inactivity from September 13, 1996 until September 23, 1997, the
State indicates that this was addressed as required by domestic law.
On September 25, 1997, the Presidency of the Judicial Organism had
ordered the pertinent official to appear for a hearing to establish responsibility
for the period of inactivity, and the process had been reactivated with a
second citation to the accused to appear before the Court to provide his declaration.
19. The State emphasizes that neither of the two
criminal processes initiated by the victim’s family have established the responsibility
of State agents as the material or intellectual authors of the disappearance
of Mr. Guarcas.
A. Preliminary considerations with respect to procedure
As a preliminary matter, the Commission notes that both parties were
notified of its disposition to facilitate a friendly settlement should they
wish to invoke that procedure. By
means of its note of April 14, 1998, the State indicated that it did not consider
it pertinent to accept or reject the procedure at that time, and, given the
lack of any subsequent action, the Commission considers that this is equivalent
to a rejection. In their filing
of June 18, 1998, the petitioners noted the State’s rejection of the Commission’s
offer of facilitation, declined to initiate this process, and requested that
the latter advance in the preparation of a report pursuant to Article 50 of
the American Convention. As the
parties were given the opportunity to avail themselves of the settlement procedure
established in Article 48(1)(f) of the Convention and declined to accept it,
the Commission now proceeds to its analysis of the merits of the case.
With respect to the State’s continuing position, subsequent to the
adoption of the decision on admissibility set forth in report 22/98, that
domestic remedies have not been exhausted as required, the Commission observes
that, while it is necessarily competent to reassess questions of admissibility
in the course of proceedings before it to the extent that new facts or arguments
come to light, such consideration is not required in the instant case as the
positions of the parties were fully addressed in Report 22/98.
The State has presented no new facts or arguments affecting that analysis.
To the extent that the arguments of the State in this regard bear on
the substantive questions of access to justice and due process, they will
be taken into account in the analysis of the merits which follows.
B. Preliminary considerations with respect to the facts
starting point for the Commission’s analysis of the facts is that Francisco
Guarcas Cipriano has not been seen or heard from since October 19, 1993.
The parties now appear to be in accordance as to the identity of the
victim. While the State had indicated
concern with respect to establishing which of three individuals bearing the
name of the victim was in fact the victim, in an April 1998 communication,
the petitioners produced a copy of birth certificate Nº 053057, from the civil
registry in Chichicastenango, pertaining to Francisco Guarcas Cipriano, born
in Semejá on February 1, 1956. The petitioners indicated that this information had been available
through the State’s files, and the State submitted no further observations
with respect to this question. The
petitioners maintain, and the State has never controverted that Francisco
Guarcas Cipriano was disappeared on the date in question, and neither his
whereabouts nor his fate have been officially established.
record presents the evidence required to establish that
Mr. Guarcas was disappeared by State agents.
The denunciations referred to in the case file indicate that the last
person to see Mr. Guarcas on the day of his disappearance stated that he had
been in the company of four PAC members and G-2 collaborators. The petitioners allege that: Mr. Guarcas was disappeared in
retaliation for having renounced his PAC service some days earlier; that members
of the PAC’s and military threatened those who opposed the PACs or refused
to perform service within the PACs; that the PAC’s of Semajá operated with
the support of the Army General Command of military zone 20; and that PAC
member and G-2 operative Miguel Xiloj Mejía had been implicated as responsible
for the disappearance. These
allegations have not been controverted by the State with other information.
24. As noted by the petitioners, the First Report
of the Director of the United Nations Mission for the Verification of Human
Rights and of Compliance with the Commitments of the Comprehensive Agreement
on Human Rights (hereinafter “MINUGUA”), referred to Mr. Guarcas’ disappearance.
Although the disappearance of the victim predated the verification
period, the Mission noted the nature of a disappearance as a continuing violation,
and explained that it would report on cases such as this where there were
indications that the victim might still be alive.
Having recounted the basic facts, the report noted that, pursuant to
a December 1994 announcement by the GAM that the victim was still alive, “his
relatives, who are also members of the GAM, were repeatedly intimidated, subjected
to death threats and accused of being guerillas by members of the CVDC for
the Semejá II district of Chichicastenango, in Quiché.”
The Commission’s analysis of the facts of the present case cannot be
divorced from their context. The
Commission, MINUGUA, and other entities reported during the period in question
on a pattern of reprisals visited on persons who opposed PAC activity or resisted
serving in their local PACs. At
the time under study, PAC service, which had originally been compulsory, was
However, reports from the period indicate that resistance to PAC service
in the Department of El Quiché was met with threats, intimidation, killings
and disappearances carried out by members of the military, military commissioners
and PAC members.
These reports further indicate that such crimes were not met with the
measures of prevention or response required of the State.
As such reports indicate, and as the Inter-American Court has confirmed,
those who served in the PAC’s were acting as agents of the State of Guatemala.
record of the instant case presents a situation fully consistent with the
foregoing pattern. Denunciations
filed in the course of the domestic proceedings and before the Commission
indicate that PAC members threatened the victim prior to his disappearance
for having renounced his PAC service, and threatened his family afterwards.
That record also reflects that the victim was last seen in the company
of PAC members, one of whom was subsequently accused in connection with the
case. As the Inter-American Court
indicated in the Velásquez Rodríguez Case, “If it can be shown that there
was an official practice of disappearances … carried out by the Government
or at least tolerated by it, and if the disappearance of [the victim] can
be linked to that practice,” the allegations will have been proven “so long
as the evidence presented on both points meets the standard of proof required
in cases such as this.”
The State has neither accepted nor rejected the version of events denounced
by the petitioners. Nor has it provided information to substantiate a thorough
and effective investigation of the events denounced, either in the course
of the proceedings before the Guatemalan judiciary or before this Commission.
The petitioners have thus presented indicia of PAC involvement in the
disappearance of Mr. Guarcas, which is corroborated by and consistent with
a pattern documented by the Commission and other sources, and the State has
provided no elements of proof to the contrary. On the basis of all the indicia
on record, the Commission concludes that Francisco Guarcas Cipriano was deprived
of his liberty and disappeared by State agents.
The crime of disappearance was described by the Inter-American Court
of Human Rights in the Velásquez Rodríguez Case, and later codified in the
Inter-American Convention on Forced Disappearance of Persons (which Guatemala
has signed but not ratified).
The enforced disappearance of human beings, where an individual is
taken into custody and the authorities deny this fact in order to conceal
responsibility, "is a multiple and continuous violation of many rights
under the Convention."
The right to personal liberty
lawful deprivation of liberty must issue from and be executed by a competent
authority, and must be effectuated in accordance with the substantive and
procedural requirements of domestic law as well as of the American Convention.
A disappearance stands in direct opposition to such requirements, and
outside the boundaries of the rule of law. The Commission has concluded on
the basis of the totality of the information before it that Francisco Guarcas
Cipriano was abducted and deprived of his liberty by State agents.
An individual who is disappeared is also deprived of the right to be
taken without delay before a judge and to invoke the appropriate procedures
to obtain a review of the legality of the detention, in further violation
of the provisions of Article 7 of the American Convention.
The right to petition for a determination of the legality of detention
is the fundamental guarantee of a detainee's constitutional and human rights
in the case of a deprivation of liberty by State agents. "[H]abeas corpus performs a vital role in ensuring that
a person's life and physical integrity are respected, in preventing his disappearance
or the keeping of his whereabouts secret and in protecting him against torture
or other cruel, inhumane, or degrading punishment or treatment."
The right to be treated humanely
A disappearance constitutes an implicit violation of Article 5 due
to the nature of the crime. The
victim is forcibly abducted, detained under clandestine conditions, and held
incommunicado, cut off from contact with the outside world and any form of
aid or protection. This alone
would necessarily produce great anxiety and suffering.
The record reflects that Francisco Guarcas Cipriano was abducted on
October 19, 1993. The petitioners,
and subsequently MINUGUA, reported indications that he may have been alive
as of December of 1994. While
it is impossible to verify precisely how long Mr. Guarcas might have been
held by his captors, it may be presumed under the circumstances that the treatment
he was accorded contravened the standards of Article 5 of the Convention.
In addition to the harm posed to the victim's physical and mental integrity,
a disappearance by its nature causes great anxiety and suffering for the victim's
loved ones. The victim's family
is unable to come to his aid, unable to clarify his fate, and unable to find
any sense of closure with respect to the victim's fate.
The passage of time gives rise to a presumption that the victim was
killed, but family members have no means to locate the remains or to provide
a proper burial.
The right to life
As established by the Inter-American Court, "The practice of disappearances
often involves secret execution without trial, followed by concealment of
the body to eliminate any material evidence of the crime and to ensure the
impunity of those responsible. This
is a flagrant violation of the right to life, recognized in Article 4 of the
The parties are in accordance that Francisco Guarcas Cipriano remains disappeared.
While Guatemalan authorities were on notice that the victim had last
been seen accompanied by State
agents, the record contains no substantive information as to the results of
official efforts to investigate his fate.
Under such circumstances, the burden of proof necessarily rests with
the State, which must rebut the presumption established--of its responsibility--with
While the State has reported on the existence of judicial processes
initiated by the family members of the victim, it has provided no substantive
information whatsoever as to the results of any measures of investigation
into the whereabouts or fate of the victim.
Consequently, considering: 1) the fact that Francisco Guarcas Cipriano
was reportedly last seen in the company of State agents; 2) that the State
acknowledges that he remains disappeared; 3) that a disappearance not only
constitutes an arbitrary deprivation of liberty but also poses serious danger
to the personal integrity, security and even the life of the victim; and,
4) that over five years have passed since he was last seen or heard from,
it may be presumed that he was in fact deprived of his right to life, arbitrarily
and illegally, by agents of the Guatemalan State.
F. The right to judicial protection and to be heard in accordance with due process
Under the American Convention on Human Rights, when a protected right
or freedom has been infringed, the State is obliged to respond sua
sponte with certain measures of investigation, actions to sanction and
punish the perpetrators, and steps to ensure access to compensation.
At the same time, the victim has a direct right to seek judicial protection
and redress. The act of enforced
disappearance, where an individual is held incommunicado and the authorities
conceal the fact of custody, places the individual concerned outside of the
protection of the law. This renders
the detainee unable to access the right to file a writ of habeas
corpus, the remedy through which judicial protection is normally made
available to address an illegal detention.
As the victim of a disappearance is unable to seek judicial vindication,
the right to seek that recourse necessarily devolves to the victim's family
members. The Commission has established
that victims and/or their relatives have a right to a judicial investigation
by a criminal court designed to establish and sanction responsibility for
human rights violations. This flows from the obligation
of the State to "use all the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction [in order] to
identify those responsible.”
Under the Convention:
State 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 (Art. 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 (Art. 1).
This obligation is met not through measures of form but of substance.
States Parties are required to take affirmative steps to ensure that
the rights under the Convention are enforced.
The remedies provided for by the State must therefore be "truly
effective in establishing whether there has been a violation of human rights
and in providing redress."
The ability to vindicate a right through judicial recourse under the
Guatemalan system presupposes that a competent court will be willing and able
to draw upon the capacity of the State to provide the required measures of
Accordingly, the response of the State to the disappearance of Francisco
Guarcas Cipriano must be analyzed in terms of whether it established that
there had been a violation of the victim's rights and provided corresponding
redress. The writ of habeas corpus is theoretically designed to compel an urgent official
response in the case of an illegal detention.
This simple and prompt recourse contemplated in Article 25 constitutes
one of the pillars, not only of the system, but of the rule of law in a democratic
society, and plays an integral role in protecting the most fundamental individual
rights and freedoms.
In the instant case, however, the several writs of habeas
corpus filed on behalf of Mr. Guarcas were not met with an effective response.
While the State argued that its authorities processed the writs as
required, there is simply no substantive information in the record reflecting
that an investigation designed to establish the victim's whereabouts or fate
was ever carried out.
State maintains that the criminal process which remains pending provides an
effective remedy to the victim's family.
Again, the record of the present case contains no substantive information
reflecting a serious or effective effort to investigate the fate of the victim,
or to investigate those responsible for his disappearance.
The Commission observes with dismay that the State raised questions
with respect to the identity of the victim for the first time in its submission
of April 14, 1998. These questions
were posed pursuant to the filing by Mr. Guarcas’ family of three writs of
habeas corpus and two criminal complaints.
Further, even the brief references in the record to steps taken in
the criminal investigation show that process to have been ineffective and
subject to undue delay. On August
26, 1996, for example, the State reported the taking of several declarations,
including from the victim’s father and another family member attesting, inter
alia, that the former had been offered money by the principal accused
to stop pursuing his son’s disappearance.
The record reflects no effort to investigate the allegations of the
declarants, which were specific and consistent with each other.
With respect to the question of delay, the State’s submissions indicate
that multiple citations and arrest orders were issued over the course of more
than a year before the authorities detained the principal accused, but the
record provides no explanation for the non-execution of the first order or
the subsequent delay. The State
itself acknowledged in its October 15, 1997 submission that criminal process
486-94 had been inactive between September 13, 1996 and September 23, 1997,
but asserted that this deficiency had been addressed, as a hearing had been
ordered by the Presidency of the Judicial Organism to establish responsibility
for that delay. The record fails,
however, to include information as to whether such a hearing was carried out
or to what effect. Nor has the
State provided information to explain why, notwithstanding the passage of
over five years, its criminal investigation has failed to produce any substantive
Because the State failed to respond to the disappearance of Francisco
Guarcas Cipriano as required, his family has been denied justice.
The victim's family had a right to know the truth about what happened
They were also entitled to use that information to vindicate their
right as successors to seek reparation from the State.
The State of Guatemala was required 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 ... adequate compensation."
In the instant case it is clear, over five years after the victim’s
disappearance, that the Guatemalan State failed to honor its obligation to
provide simple, swift and effective legal recourse to the victim's family,
so that their rights might be vindicated.
The right to recognition as
a person under the law and other rights
Mr. Guarcas was forcibly disappeared by State agents, a multiple and
continuing violation of the American Convention on Human Rights.
The objective of those who perpetrate a disappearance is to operate
beyond the margins of the law, to conceal all evidence of their crimes, and
to escape any sanction. For the
victim, the consequence of an enforced disappearance is to be denied the most
basic rights deemed to inhere in the very fact of being human.
The Commission observes, pursuant to the principle of jura
novit curia that the act of enforced disappearance violates the right
of the individual under Article 3 of the American Convention "to recognition
as a person before the law."
The petitioners invoked the right to freedom of association set forth
in Article 16 of the Convention in their submission of July 17, 1997, but
did not set forth with specificity the factual and legal foundation for the
violation alleged with reference to the circumstances of the victim. That being so and in light of the other violations established,
the Commission finds it unnecessary to analyze this contention further.
The obligation of the State
to respect and guarantee individual rights
The violations at issue in the instant case demonstrate that the State
of Guatemala has failed to uphold the undertaking set forth in Article 1(1)
of the American Convention on Human Rights to respect the rights recognized
therein and to ensure to all persons subject to its jurisdiction the free
and full exercise of those rights.
The concept of rights and guarantees "cannot be divorced from
the system of values and principles that inspire it."
Within the Inter-American system, the interrelated violations that
constitute a disappearance have been subjected to special condemnation.
The Inter-American Court has emphasized that: "The practice of
disappearances, in addition to directly violating many provisions of the Convention
... constitutes a radical breach of the treaty in that it shows a crass abandonment
of the values which emanate from the concept of human dignity and of the most
basic principles of the Inter-American system and the Convention.
The first obligation of any State Party to the American Convention
is to respect the rights and freedoms set forth therein.
"[U]nder international law a State is responsible for the acts
of its agents undertaken in their official capacity and for their omissions,
even if they are acting outside the sphere of their authority or in violation
of internal law." Based
on the record and its foregoing analysis, the Commission concludes that Francisco
Guarcas Cipriano was disappeared by State agents, and that the relevant authorities
failed to mount an effective response.
The second obligation of the State is to guarantee the free and full
exercise of the rights recognized by the Convention.
As the Inter-American Court has established, this
implies the duty of the States Parties to organize the governmental
apparatus and, in general, all the structures through which public power is
exercised, so that they are capable of juridically ensuring the free and full
enjoyment of human rights. As
a consequence of this obligation, the States must prevent, investigate and
punish any violation of the rights recognized by the Convention and, moreover,
if possible attempt to restore the right violated and provide compensation
as warranted for damages resulting from the violation of human rights.
the case of a forced disappearance, the State has the duty to determine the
fate of the victim, submit those responsible to appropriate prosecution and
punishment, and indemnify the victim's family members.
The foregoing analysis demonstrates that the State of Guatemala has
failed to guarantee the rights of the victim and his family.
ACTIONS SUBSEQUENT TO REPORT Nº 33/99
to the terms of Article 50 of the Convention, the Commission adopted Report
Nº 33/99 on March 9, 1999, during its 102nd Regular Session.
The Report set forth the Commission’s conclusion that the State of
Guatemala bears responsibility in the case of the forced disappearance of
Francisco Guarcas Cipriano for violations of the rights to recognition as
a person before the law, to life, to humane treatment, to personal liberty,
and to judicial guarantees and protection, established in Articles 3, 4, 5,
7, 8 and 25 of the American Convention on Human Rights, and for having failed
to uphold its Article 1(1) obligation to respect and ensure those rights.
Accordingly, the Commission recommended that the State carry out a
“complete, impartial and effective investigation” in order to establish the
fate of the victim and sanction those responsible, and that it adopt the measures
necessary to ensure that the victim’s family receives fair and prompt reparation
for those violations. The Report
was transmitted to the State of Guatemala on April 8, 1999.
Pursuant to the terms set forth, the State was given two months from
the date of receipt to comply with the recommendations issued and report to
the Commission on the measures taken.
By a note of the same date, the Commission informed the petitioners
that a report on the case had been adopted pursuant to the terms of Article
50 and transmitted to the State.
to the adoption of that report, but prior to its transmission, on March 12,
1999, the Commission received an additional submission from the State responding
to the former’s November 7, 1998 request for observations.
This filing, received beyond the time period that had been provided
in that request, repeated the position of the State that domestic remedies
had not been exhausted, and that its judiciary remained seized of the matter.
March 23, 1999, the petitioners submitted a request that an additional organization,
the Center of Ethnic Communities Runujel Junám [Centro de Comunidades Étnicas
Runujel Junám] (CERJ), be added to the case as co-petitioner, in view of its
participation in pursuing justice in the case.
The Commission informed the petitioners that this request had been
accepted in a note of May 18, 1999.
State submitted its response to Report Nº 33/99 by note dated June 3, 1999.
With respect to the first recommendation concerning the obligation
to investigate in order to determine the circumstances of the violations and
establish the corresponding responsibility, the State indicated that, as its
submissions showed, it had carried out an impartial investigation.
The fact that this had not produced positive results did not imply
any responsibility on its part. The
principal accused had been charged, but the relevant judicial authority had
determined there was insufficient proof of his responsibility.
Further, the State objected to the use of the term “forced disappearance”
in the recommendations, given that it had not been possible to date to judicially
determine that State agents had participated in the disappearance of the victim.
respect to the second recommendation concerning the obligation of the State
to repair the consequences of the violations, the State indicated that, as
it had not been possible to date to judicially establish the responsibility
of State agents, there existed no judicial resolution ordering the payment
of a civil indemnity in the case. The
State indicated that, nonetheless, for humanitarian reasons, the case will
be included within the government reparations programs for victims of human
rights violations during the armed conflict.
reviewed the information provided by the State, the Commission finds it pertinent
to offer the following observations.
First, with respect to the State’s affirmation that it had demonstrated
that its authorities carried out an impartial investigation, and that the
lack of positive results implied no responsibility on its part, the Commission
reiterates that the record fails to substantiate that effective measures of
investigation were taken either with respect to the fate of the victim or
the corresponding responsibility for his disappearance. In this regard, among the points referred to in paragraphs
32-33, 37-40 and 46, supra, the
Commission emphasized the essential nature of the protection the remedy of
habeas corpus is required to afford,
and the lack of any information to substantiate that the writs presented with
respect to the victim were processed with the required due diligence.
Further, with respect to the judicial investigation process reportedly
still pending, the Commission indicated that the obligation to clarify the
facts and corresponding responsibility depended not on measures of form but
of substance. The State failed
to show that it had effectively investigated either aspect of the case, or
to explain why, notwithstanding the passage of over five years, that process
had failed to produce any substantive results.
The information before the Commission with respect to that judicial
process demonstrates little more than that it has been subject to procedural
irregularities, and undue and unexplained delay. The State did not address these deficiencies set forth in Report
Nº 33/99 in its response.
with respect to the obligation to repair the violations established, the Commission
considers that the commitment of the State to include the case of Mr. Guarcas
within the programs that are to be implemented to redress the human rights
violations committed during the armed conflict is a positive step.
However, the recommendation issued required that measures of reparation
designed to redress the violations established in Report Nº 33/96 be adopted
within two months. In this regard,
on the one hand, it is not clear that the inclusion of the case of Mr. Guarcas
within the programs referred to will provide for the effective reparation
of the violations established by this Commission.
On the other hand, and in any case, the State has not complied with
the recommendation in the time period that was established, nor has it indicated
when the measures contemplated will be implemented. The foregoing issues notwithstanding,
the Commission has taken note of this official commitment expressed by the
State, and hopes that it will be complied with as soon as possible.
the Commission finds it pertinent to clarify that the obligation to repair
the consequences of these violations is not contingent on the establishment
of criminal responsibility by the Guatemalan judiciary as contended by the
State. That obligation is a consequence
of the establishment of the State’s responsibility for the violations set
forth in this report.
a State Party to the Convention is obliged to take reasonable measures both
to prevent human right violations, and to respond effectively to those that
occur. The Commission emphasizes
that ensuring the efficacy of the protections provided by the Convention requires
that any claim of violation be subject to an investigation effectuated pursuant
to the standards of due diligence. In
the present case, due investigation of the habeas
corpus writs was required as a means of safeguarding Mr. Guarcas’ liberty,
as well as his physical integrity and very life. Due investigation of his fate, and the corresponding responsibility
was required to respond to the violations, and to enable his family to vindicate
their right to justice. The Commission
has established that Francisco Guarcas Cipriano was disappeared by State agents
and died while in their custody. The
State has not adequately investigated the facts or located the remains of
Mr. Guarcas, thereby perpetuating the violation of the right of his family
to know the truth about what happened to him.
The State of Guatemala failed to fulfill its duty of prevention and
protection in this case. Its
international responsibility for the violations established will continue
until the measures the Commission has recommended have been fully discharged.
On the basis of the foregoing analysis and conclusions, the Commission
finds that the recommendations issued in Report 33/99 have not been complied
with, and therefore reiterates its conclusion that the State of Guatemala
is responsible for violations of the rights to recognition as a person before
the law, to life, to humane treatment, to personal liberty, and to judicial
guarantees and protection, established in Articles 3, 4, 5, 7, 8 and 25 of
the American Convention on Human Rights with respect to the forced disappearance
of Francisco Guarcas Cipriano. The
State is accordingly responsible for having failed to uphold its Article 1(1)
obligation to respect and ensure those rights under the Convention.
On the basis of the analysis
and conclusions set forth in the present Report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
its recommendations to the State of Guatemala that it:
Carry out a complete, impartial and effective investigation to determine
the circumstances of the forced disappearance of Francisco Guarcas Cipriano
and to sanction those responsible in accordance with domestic law.
Adopt the measures necessary to ensure that the family members of Mr.
Guarcas receive fair and prompt reparation for the violations here established.
On October 22, 1999, the Commission transmitted report Nº 108/99,
the text of which is found above, to the State of Guatemala and the petitioners,
in accordance with Article 51(2) of the American Convention.
Further, the Commission set a deadline of one month for the State to
comply with the foregoing recommendations.
On November 23, 1999, the State sent a communication, received on November
29, 1999, in which it reiterated the information presented in its response
to report Nº 33/99 pertaining to the present case, which has already been
In accordance with Article 51(3) of the American Convention, in this
stage of the process the Commission shall confine itself to assessing the
measures taken by the Guatemalan State to comply with the recommendations
made and remedy the situation under review.
will be noted, the new information given by the State with respect to the
measures taken by it to comply with the recommendations formulated by the
Commission in report Nº 108/99 does not contain any new concrete information.
This information was received extemporaneously.
the basis of the foregoing considerations and in accordance with Articles
51(3) of the Convention and 48 of its Regulations, the Commission decides
to reiterate the conclusions and recommendations contained in paragraphs 56
and 57 above, to publish this report, and to include it in its Annual Report
to the General Assembly of the OAS.
In compliance with its mandate, the Commission will continue to evaluate
the measures taken by the Guatemalan State with respect to the recommendations
cited until the State has fully complied with them.
Approved on the 21 day of the month of December, 1999.
(Signed): Robert K. Goldman, Chairman; Hélio Bicudo, First Vice-Chairman;
Claudio Grossman, Second Vice- Chairman; and Commissioners Alvaro Tirado Mejía
and Jean Joseph Exumé.
Report 22/98 was published in Annual
Report of the IACHR 1997, OEA/Ser.L/V/II.98, Doc. 7 rev., April 13,
1998, at p. 128.
Id., at para. 33.
MINUGUA Report, A/49/856, para. 61.
The PACs were established at the end of 1981 by the de
facto military regime of General Ríos Montt, as part of its policy
to exterminate the guerilla movement through the relocation of the indigenous
population, and the eradication of "any community or ... person that
his government was suspicious of, using methods that violated human rights."
IACHR, Fourth Report on the
Situation of Human Rights in Guatemala, OEA/Ser.L/V/II.83, Doc. 16
rev., June 1, 1993, at 53.
The PACs were initiated in the Department of El Quiché, and expanded
to other Departments.
At the time in question, they were officially referred to as the
Voluntary Committees for Civil Defense (CVDC's), although still commonly
known as PAC's.
The PAC's were officially disbanded in mid-1996.
See e.g., Chapter IV, Annual
Report of the IACHR 1994, OEA/Ser.L/V/II.88, Doc. 9 rev., Feb. 17,
1995, at 191-92; Fourth Report, supra, pp.
53-61; MINUGUA, First Report,
supra, paras. 35-36; MINUGUA,
Second Report, A/49/929, Aug.
1995, paras. 192, 194; Report of
the United Nations Independent Expert on Human Rights in Guatemala, Mónica
Pinto, Dec. 20, 1994, para. 187; RFK Memorial Center for Human Rights,
Institutional Violence: Civil Patrols in Guatemala, 1993-1994 (1994).
IACtHR, Blake Case, Sentence of January 24, 1998 (Merits), paras. 52.p,
PAC's [were] a form of paramilitary entity, and their members act[ed]
as state agents."
Report No. 32/96, Case 10.553, María Mejía v. Guatemala, in Annual
Report of the IACHR 1996, OEA/Ser.L/V/II.95, Doc. 7 rev., March 14,
1997, at para. 57. Guatemalan law provided that they were coordinated
by the National Defense Ministry.
See, Law 19-86, January
Velásquez Rodríguez Case (Merits), Sentence of July 29, 1988, Ser. C No.
4, para. 126.
See, Velásquez Rodríguez Case
(Merits), supra, paras. 149-58;
Godínez Cruz Case (Merits), Sentence of January 20, 1989, Ser. C No. 5,
paras. 157-66; Fairén Garbi and Solís Corrales Case (Merits), Sentence
of March 15, 1989, Ser. C No. 6, paras. 146-52.
See also, e.g., Annual
Report of the IACHR 1980-81, OEA/Ser. L/V/II.54, doc. 9 rev. 1, 16
Oct. 1981, at 113-14.
Article 2 of the Inter-American Convention on Forced Disappearance
of Persons defines a disappearance as:
act of depriving a person or persons of his or their freedom, in whatever
way, perpetrated by agents of the state or by persons or groups of persons
acting with the authorization, support, or acquiescence of the state,
followed by an absence of information or a refusal to acknowledge that
deprivation of freedom or to give information on the whereabouts of that
person, thereby impeding his or her recourse to the applicable legal remedies
and procedural guarantees.
Rodríguez Case (Merits), supra,
paras. 155, 181.
IACtHR, Advisory Opinion OC-8/87, of January 30, 1987, "Habeas Corpus
in Emergency Situations (Arts. 27.2, 25.1 and 7.6 American Convention
on Human Rights)," Ser. A No. 8, para. 35.
those in charge need not produce the prisoner posthaste they can use brutal
methods with impunity, for the purposes of either interrogation or intimidation."
IACHR, Report on the Situation
of Human Rights in Bolivia, OEA/Ser.L/V/II.53, doc. 6, 1 July 1981,
p. 41-42., at p. 42.
See, IACtHR, Blake Case, supra,
Rodríguez Case (Merits), supra,
IACtHR, Case of Neira Alegria and Others, Judgment of January 19, 1995,
Ser. C No. 20, paras. 60, 65.; citing,
Velásquez Rodríguez Case (Merits), supra,
paras. 135-36, Godínez Cruz Case, (Merits), supra,
paras. 141-42; Report 11/98, Case 10.606, Samuel de la Cruz Gómez, published
in Annual Report of the IACHR 1997,
OEA/Ser.L/V/II.98, Doc. & rev., April 13, 1998, p. 619, at para. 48.
Rodríguez Case (Merits), supra,
paras. 166, 172, 176-84.
Reports 28/92 (Argentina) and 29/92 (Uruguay) in Annual
Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, Doc. 14 corr. 1, March
12, 1993, at 49-51, 161-165.
Rodríguez Case (Merits), supra,
Rodríguez Case (Preliminary Exceptions), supra,
Rodríguez Case (Merits), supra,
Opinion 9/87 of October 6, 1987, Judicial Guarantees in States of Emergency
(Arts. 27(2), 25 and 8 American Convention on Human Rights), Ser. A No.
9, para 24.
See also, Velásquez Rodríguez
Case (Preliminary Objections), supra,
See, IACtHR, Castillo Páez Case,
Sentence of November 3, 1997, Ser. C No. 34,
paras. 82-83; Suárez Rosero Case, Sentence of November 12, 1997,
Ser. C No. 35, para. 65.
Annual Report of the IACHR 1985-86, OEA/Ser.L/V/II.68 doc. 8 rev.
1, 26 Sept. 1986, “Areas in which steps need to be taken…” at p. 193.
Rodríguez Case (Merits), supra,
Article 1.2, Declaration on the Protection of All Persons from Enforced
Disappearance, characterizing an enforced disappearance as placing the
victim: "outside the protection of the law ... inflict[ing] severe
suffering on them and their families. It
constitutes a violation of the rules of international law guaranteeing,
inter alia, the right to recognition as a person before the law...."
GA Res. 47/133 of 18 Dec. 1992.
See generally, Inter-American Convention on the Forced Disappearance
of Persons, supra.
OC-8/87, supra, at para. 26.
The practice of disappearances has been characterized by the OAS General
Assembly as "an affront to the conscience of the Hemisphere"
and "a crime against humanity."
General Assembly Resolution 666 (XIII-0/83).
Rodríguez Case (Merits), supra,
paras. 170, 166.