Cases 10.626 Remigio Domingo Morales and Rafael Sánchez, 10.627 Pedro Tau Cac, 11.198(A) José María Ixcaya Pixtay et al, 10.799 Catalino Chochoy et al, 10.751 Juan Galicia Hernández et al and 10.901 Antulio Delgado v. Guatemala, Report No. 59/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 953 (2000).
REPORT Nº 59/01
GUATEMALA
April 4, 2001
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
Commissions 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
commanders 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 States 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 Commissions offer.
c. The
States 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 dresspresumably 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 Commissions offer.
c. The
States 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 deceaseds 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 movements chief mouthpiece.
19.
Two days after the killing, Marcela Guarcax Morales, Ixcayas
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 husbands murder to the
Human Rights Ombudsman on May 9, 1990.
Pedro Ixcaya Cuc, José Marías 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 victims 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 Garcías
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 friends 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.
Imuls 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 States
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 Commissions 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
States 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 Guatemalas 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 States 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 Commissions offer.
c. The
States 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 States 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 States response of August 28, 1991, was promptly forwarded
to the petitioners. On August
11, 1993, the petitioners sent their observations to the States
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 Commissions offer.
c. The
States 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 victims 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
States 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 States
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 States 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 Commissions 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 victims 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.
[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 Commissions 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
cousins extrajudicial execution.
After visiting the Ombudsmans 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
Ixcayas 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.