Marco Antonio Molina Theissen v. Guatemala, Case 12.101, Report No. 79/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 182 (2001).
ANTONIO MOLINA THEISSEN
On September 8, 1998, the Center for Justice and International Law
(CEJIL) and the Grupo de Apoyo Mutuo (GAM) (hereinafter the
petitioners) submitted a petition to the Inter-American Commission
on Human Rights (hereinafter the Commission, the Inter-American
Commission, or the IACHR) denouncing the forced disappearance
of Marco Antonio Molina Theissen (hereinafter the alleged victim),
a 14-year-old child who was allegedly abducted from his parents home
by members of the armed forces of the Republic of Guatemala (hereinafter
the State or the Guatemalan State) on October 6,
The petitioners allege that the following rights enshrined in the
American Convention on Human Rights (hereinafter the Convention
or the American Convention) were violated: the right to life
(Article 4), the right to humane treatment (Article 5), the right to personal
liberty (Article 7), the rights of the child (Article 19), the right to
a fair trial (Article 8), and the right to judicial protection (Article
25), all this in conjunction with the States duty of respecting and
ensuring the cited rights set forth in Article 1(1). They also claim that
the right to juridical personality, protected by Article 3 of the American
Convention, was violated. With
respect to the admissibility of this case, the petitioners claim to have
filed five habeas corpus remedies and two special investigation procedures.
The State provided information about the latter investigation procedure,
but it did not expressly raise the matter of due exhaustion of domestic
After analyzing the parties arguments and their compliance
with the admissibility requirements set forth in the Convention, the Commission
has decided to declare the petition admissible.
PROCESSING BY THE COMMISSION
The complaint was submitted to the IACHR on September 8, 1998, and
its appendices on September 14 of that same year. The relevant parts of
those communications were forwarded to the State on February 2, 1999.
On April 26, 1999, the State provided some preliminary information
and requested a 60-day extension for presenting a more complete reply.
On May 6, 1999, the Commission forwarded the States report
to the petitioners and granted them a period of 30 days within which they
were requested to present their comments.
On June 17, 1999, within an extension granted by the Commission the
petitioners submitted their observation on the States reply.
On July 2 the State supplied information.
On July 16 the petitioners comments were forwarded to the State.
On August 19, the State sent information again.
On August 23, the petitioners submitted what they claimed were their
On September 7, 1999, the State was sent the petitioners comments
on its reply of August 19. On
October 15, the State submitted a new document containing information.
That document was forwarded by the Commission to the petitioners
on October 28, 1999.
On July 28, 2000, the IACHR put itself at the disposal of the parties
with a view to reaching a friendly settlement.
On March 2, 2001, the Commission held a meeting at its headquarters
in order for the parties to discuss the terms of a possible friendly settlement.
October 13, 2000, during the Commissions 108th session, the petitioners
signed a document setting the foundations for a friendly settlement agreement
that they pledged to draw up.
On April 30, 2001, the petitioners informed the IACHR about their
intention to withdraw from the friendly settlement procedure undertook with
the State of Guatemala.
III. POSITIONS OF THE PARTIES
The petitioners claim that on October 6, 1981, at around 1:30 p.m.,
three men, armed with automatic pistols, entered the home of the Molina
Theissen family. The men handcuffed Marco Antonio Molina Theissen, who at
that time was 14 years old, tied him to the arm of a chair, and gagged him
with a strip of masking tape.
They stayed in the house for about 40 minutes before leaving
in a pick up truck taking the boy, who still was handcuffed and gagged. Members of the family wrote down the trucks license plate
that according to the investigations carried out by the alleged victims
parents at the General Directorate of Internal Revenue and the General Directorate
of the National Police was identified as belonging to a Guatemalan army
vehicle. To date the whereabouts of Marco Antonio Molina Theissen remains
The petitioners suggest that the abduction of Marco Antonio Molina
Theissen was carried out as a retaliation after his sister, Emma Guadalupe,
a former student leader, managed to escape from the hands of the army.
Some days before the kidnapping of Marco Antonio Molina Theissen,
his sister had been imprisoned for nine days in which she was interrogated,
tortured, and raped, before she could escape.
Her brother Marco Antonio was abducted the day after she escaped.
The petitioners report that the alleged victims family filed
several habeas corpus with the judiciary. The first one was lodged
on the day of the kidnapping, October 6, 1981; another on June 23, 1997;
and the last one on August 12.
They also claim that they filed two special investigation procedures,
but none of them lead to a positive result. The first special procedure
was lodged on January 14, 1998,
and the second one on February 5 of the same year. The petitioners state that the failure of these remedies and
the States unwillingness to investigate the disappearance constitute
grounds for resorting to the exception to the rule of the previous exhaustion
of domestic remedies, in as much as those remedies have proved to be ineffective.
Regarding the rights that the petitioners claimed have been violated,
they note that Marco Antonio Molina Theissen was last seen in the hands
of State agents and so it can be assumed that his life was taken arbitrarily
and illegally, breaching Article 4 of the Convention.
They allege that the boys forced disappearance constitutes
a violation of his right to human treatment, and that the circumstances
in which the alleged victim was detained, handcuffed, and gagged, all together
with the fact that torture was a common practice in Guatemala at that time,
lead to the assumption that Marco Antonio Molina Theissen was tortured.
The petitioners add that Marco Antonio Molina Theissens disappearance
also violated the right to human treatment of his parents and other family
members, pursuant to Article 5 of the Convention. The disappearance, they
say, also constituted an arbitrary denial of liberty, thus a violation of
Article 7 of the Convention. The State, according to the petitioners, also
violated Article 19 of the Convention by failing to provide special measures
of protection for children, bearing in mind that Marco Antonio Molina Theissen
was 14 years old when he was kidnapped.
They also claim that the State has violated Articles 8 and 25 of
the Convention by denying Marco Antonio Molina Theissen and his family effective
remedies, since they filed several habeas corpus
recourses that failed to lead to an appropriate investigation.
Finally, invoking an emerging principle within international law,
they allege that there was a violation of the right to truth.
Later, the petitioners additionally invoked a violation of Article
3 of the American Convention (the right to juridical personality) as a result
of the forced disappearance of Marco Antonio Molina Theissen.
The State of Guatemala, in all its communications, provided the Commission
with information regarding only the Special Investigation Procedure 2-98,
lodged with the criminal chamber of the Guatemalan Supreme Court on February
The State said that as a part of that special investigation procedure,
on April 5, 1999, María de la Cruz Ortiz, a prosecution agent with the Public
Prosecution Service, reported to the Supreme Court on the steps taken therein
and concluded that they had been unable to establish the boys whereabouts.
The Supreme Courts criminal chamber issued a resolution convening
a hearing for April 26, 1999.
At that hearing, the State said, the special investigation procedure
was ruled admissible and the Human Rights Attorney [Guatemalas Ombudsman]
was instructed to begin an investigation. Jurisdictional control over the
Special Investigation Procedure No. 2-98 was given to the Fifth First-Instance
Court for Criminal, Drug, and Environmental Offenses. At the hearing, the representative of the Grupo de Apoyo
Mutuo (GAM) requested a new hearing for the submission of evidence,
which was set for May 7, 1999. At
that hearing, the Supreme Court of Justice asked the Human Rights Attorney
to present his report on June 25, 1999.
On that date, the Ombudsman requested a three-month extension.
Finally, on October 12, 1999, the State reported that the Attorney
had presented the relevant documents on September 25, 1999, and that they
were being studied by the judge. It also said that the results of the proceedings
would be forwarded to the Commission once they were handed down by the court;
however, the State has not yet forwarded them.
In its communications, the State failed to provide the IACHR neither
with information on an earlier special investigation procedure that was
lodged with the Supreme Court of Justice on January 14, 1998, or with information
or on the processing and results of the five habeas corpus remedies
filed on Marco Antonio Molina Theissens behalf.
With respect to the latter recourses, the State neither refutes that
they were actually lodged on behalf of the alleged victim, nor does it argue
a failure to exhaust domestic remedies.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission
The petitioners are entitled, under Article 44 of the American Convention,
to lodge complaints with the IACHR.
The petition refers, as alleged victims, individual persons with
respect to whom Guatemala had assumed the obligation to respect and ensure
the rights enshrined in the Convention.
As regard to the State, the Commission observes that Guatemala has
been a state party to the American Convention since
its ratification on May 25, 1978.
The Commission, therefore, has competence ratione
personae to examine the instant petition.
The Commission has competence ratione
loci to examine this petition since the alleged violation to the rights
protected by the American Convention occurred within the territory of a
state party to that instrument.
The Commission has competence ratione
temporis since the alleged incidents took place at a time when the obligation
of respecting and guaranteeing the rights enshrined in the Convention was
already into force for the State.
Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights that
are protected by the American Convention.
Exhaustion of domestic remedies
Article 46(1)(a) of the American Convention stipulates that one of
the requirements for a petition to be admitted is that the remedies
under domestic law have been pursued and exhausted in accordance with generally
recognized principles of international law.
Those principles refer not only to the formal existence of such remedies,
but also to their adequacy and effectiveness.
Adequate domestic remedies within the domestic legal system are those
that are suitable to redress an infringement of a legal right.
An effective remedy is one that is capable of producing the result
for which it was designed.
Members of the alleged victims family claim to have filed a
total of five habeas corpus remedies, from which the petition reports
only on three and attaches records on two.
The first one was presented the same afternoon as the disappearance
occurred; the second one on June 23, 1997; and the third one on August 12
of the same year. The latter remedy was declared inadmissible, while the IACHR
is unaware of the results of the others.
The petitioners also filed a special investigation procedure
before the Supreme Court of Justice on January 14, 1998, and another one
with the Supreme Courts criminal chamber, on February 5, 1998.
The latter one was lodged with the criminal chamber of the Supreme
Court on May 7, 1999.
In that procedure, the Attorney for Human Rights was instructed to begin
the investigation, while the jurisdictional control over the proceedings
was given to the Fifth First-Instance Court for Criminal, Drug, and Environmental
Offenses. However, in spite
of the indications that a disappearance had happened, the State has not
ordered an investigation to determine the whereabouts of Marco Antonio Molina
Theissen, as required by Article 109 of the Law on Amparo, Habeas Corpus,
With respect to the instant aspect on admissibility, the Commission
observes that, at no time during the processing of this case, the State
argued that domestic remedies had not been exhausted neither in the habeas
corpus applications nor in the special investigation procedures.
The State of Guatemala merely reported, inconclusively, on the formalities
already pursued and those pending execution regarding the Special Investigation
It is for the IACHR to determine whether the State tacitly waived
the right to invoke such an objection. The Inter-American Court has ruled,
in the case of the Mayagna (Sumo) Awas Tingni Community, that in order
to validly oppose the admissibility of the petition... the State should
have expressly and in a timely manner invoked the rule that domestic remedies
should be exhausted.
Similarly, the Court has also ruled that: The objection asserting
the non-exhaustion of domestic remedies, to be timely, must be made at an
early stage of the proceedings by the State entitled to make it, lest a
waiver of the requirement be presumed.
Consequently, the IACHR rules that in the case subjudice, the Guatemalan
State has not invoked the exception in question and has, in fact, tacitly
waived it by failing to raise it expressly and in a timely manner in any
of its communications sent to the Commission.
According to Article 46(1)(b) of the American Convention, the general
rule is that a petition must be lodged within a period of six months from
the date on which the party alleging violation of his rights was notified
of the final judgment. According
to Article 32(2) of the Commissions Rules of Procedure, this deadline
shall not apply when exceptions to the requirement of prior exhaustion of
domestic remedies are applicable.
In such situation, the Rules of Procedure stipulate that the petition
must be lodged within a reasonable period of time, considering the date
on which the alleged violation of rights occurred and the specific circumstances
of the case.
The Commission notes that neither Marco Antonio Molina Theissens
family nor the petitioners were notified by means of a final decision reached
in any of the remedies invoked under the domestic jurisdiction, because
in none of them the judiciary reached a final decision.
With respect to the date on which the alleged violations of Marco
Antonio Molina Theissens rights occurred, the petitioners report that
the forced disappearance took place on October 6, 1981. The State, in turn,
at no time questioned that date before the IACHR. Under Article III of the
Inter-American Convention on Forced Disappearance of Persons,
the instrument that codifies the inter-American systems jurisprudence
and practice in this regard, forced disappearance is a crime that shall
be deemed continuous or permanent as long as the fate or whereabouts of
the victim has not been determined.
In addition, under Guatemalas domestic legislation, Article
201 TER of the Penal Code [
] stipulates in the pertinent part that
the crime of forced disappearance shall be deemed to be continuing
until such time as the victim is freed.
Consequently, in order to determine the date on which the alleged
violation of rights occurred, the IACHR must consider first October 6, 1981
as the moment when the perpetration of the alleged violation began and second,
all the time that has elapsed since then, because the effects of such infringements
may be prolonged continuously or permanently until such time as the
victims fate or whereabouts are established.
The Commission notes that, since Marco Antonio Molinas disappearance,
his family has, on several occasions, resorted to the Guatemalan justice
system in order to establish his whereabouts.
Thus, as stated above, the family not only filed habeas corpus
remedies on the very day that the allegedly continuous violation began;
in 1997 they repeated twice the habeas corpus application.
In addition, in 1998, the alleged victims relatives filed two
special investigation procedures; the latter was admitted by the Supreme
Courts criminal chamber on May 7, 1999.
All this indicates that the alleged victims relatives first
resorted to the domestic courts in search of justice and, later, since no
adequate resolution was forthcoming, they took their case to the inter-American
system for the protection of human rights.
Consequently, in light of the date on which the perpetration of the
alleged crime began and taking into account the specific circumstances of
this caseparticularly the continuous nature of the alleged violations
and the failure of the different remedies pursued under the domestic jurisdictionthe
Commission rules that the petition was lodged within a reasonable period
Duplication of proceedings
Nothing in the case file indicates that the substance of this petition
is pending in any other international settlement proceeding or that it is
substantially the same as any other petition already examined by the Commission
or other international body. The Commission therefore concludes that the
requirements set forth in Articles 46(1)(c) and 47(d) of the Convention
have been met.
Characterization of the alleged facts
Article 47(b) of the Convention states that a petition shall be declared
inadmissible when it does not state facts that tend to establish a
violation of the rights guaranteed by this Convention. The petitioners
claim that the forced disappearance of Marco Antonio Molina Theissen at
the hands of agents of the State of Guatemala constitutes a violation of
the right to juridical personality (Article 3), the right to life (Article
4), the right to humane treatment (Article 5), the right to personal liberty
(Article 7), the rights of the child (Article 19), the right to a fair trial
(Article 8), the right to judicial protection (Article 25), and the right
to truth, all in conjunction with the States duty of respecting and
ensuring those rights set forth in Article 1(1) of the Convention. The Commission
considers that the allegations made by the petitioners, if true, could tend
to establish violations of rights protected by the American Convention.
Moreover, the Commission considers that the allegations tend to establish
a violation of the commitments set forth in Article 1 of Inter-American
Convention on Forced Disappearance of Persons, which the Guatemalan State
assumed by ratifying that international instrument. The IACHR therefore
considers that this requirement has been met.
The Commission concludes that it is competent to examine this petition
and that the petition is admissible, according to Articles 46 and 47 of
the American Convention.
Based on the foregoing considerations of fact and law, and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare this case admissible with respect to the alleged violations
of Articles 3, 4, 5, 7, 8, 19, 25, and 1(1) of the American Convention and
of Article 1 of the Inter-American Convention on Forced Disappearance of
To give notice of this decision to the parties.
To continue with its analysis of the merits of the complaint.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., on the tenth day of October, 2001. (Signed): Claudio Grossman, President; Juan E. Méndez, First Vice-President; Commissioners Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, and Hélio Bicudo.
Commissioner Marta Altolaguirre, a Guatemalan national, did not participate
in discussing and deciding on this case in accordance with Article 17(2)(a)
of the Commissions new Rules of Procedure, which came into force
on May 1, 2001.
Appendix to the petition, submitted on September 14, 1998. Recorded
as received by the clerk of the Supreme Court on July 9, 1997.
Appendix to the petition, submitted on September 14, 1998. Recorded
as received by the clerk of the Supreme Court on August 11, 1997.
Appendix to the petition, submitted on September 14, 1998.
Recorded as received by the clerk of the Supreme Court on January
Communication of June 17, 1999, p. 3.
Report from the Government of Guatemala of July 1, 1999, p. 2.
Note of April 26, 1999.
Report from the Government of Guatemala of July 1, 1999, pp. 2-3, and
its Report of August 16, 1999, in which the State said that: Only
when the Human Rights Attorney submits his report on the special investigation
procedure will we be able to provide additional information on this
Inter-Am.Ct.H.R., Velásquez Rodríguez
Case, Judgment of July 29, 1988, Series C Nº 4, paragraphs 63-64;
Godínez Cruz Case, Judgment
of January 20, 1989, Series C Nº 5, paragraphs 66-67; Fairén
Garbi and Solís Corrales Case, Judgment of March 15, 1989, Series
C Nº 6, paragraphs 87-88.
Article 476 of the Code of Criminal Procedure provides that if a habeas
corpus remedy is lodged and fails to locate the individual in question,
and there are sufficient grounds for believing that said individual
has been arrested or illegally kept in detention by a public official,
members of the state security forces, or regular or irregular agents,
and no explanation of the individuals whereabouts is given, the
Supreme Court of Justice may, following a request made by any person:
(1) Call on the Public Prosecution Service to report to the Court, within
a period of five days, on the progress and results of the investigation,
and on the measures taken and ordered and on those still awaiting execution.
The Supreme Court of Justice may, when necessary, shorten the period
of time allowed. (2) Order the investigation (preparatory procedure)
to be conducted solely by: (a) the Attorney for Human Rights; (b) an
agency or association legally existing in the country; (c) the victims
spouse or relatives.
Resolution of May 7, 1999, from the Supreme Court of Justices
criminal chamber, attached to the petitioners note of June 17,
Decree Nº 1-86 of the Constituent National Assembly;
Art. 109: Investigation with respect to disappeared persons.
Should the proceedings followed reveal the disappearance of the person
on whose behalf the habeas corpus was filed, the court shall immediately
order an investigation of the case.
police authorities shall be required to report to the court, to the
Attorney for Human Rights, and to the parties involved, regarding the
investigations carried out, which shall be ongoing until the truth is
secured with respect to the whereabouts of the disappeared person; in
turn, the Tribunal of Habeas Corpus shall report to the Supreme Court
of Justice regarding all the formalities and any emerging circumstances.
Inter-Am.Ct.H.R., Mayagna (Sumo)
Awas Tingni Community Case, Preliminary Objections, Judgment of
February 1, 2000, Series C Nº 67 paragraphs 54-55. The Court notes that:
Although it is true that the briefs presented by Nicaragua to
the Commission while the petition was being processed indicated, among
other information, the progress of the proceedings before the domestic
courts... it is evident that the State did not clearly file the objection
that domestic remedies had not been exhausted during the first stages
of the proceeding before the Commission. There is no record in the file
that this objection had been invoked expressly until the end
of 1997. (Emphasis added.)
Inter-Am.Ct.H.R., Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, Series
C Nº 1, paragraph 88; Godínez
Cruz Case, Preliminary Objections, Judgment of June 26, 1987, Series
C Nº 3, paragraph 90; Fairén Garbi
and Solís Corrales Case, Preliminary Objections, Judgment of June
26, 1987, Series C Nº 2, paragraph 87; Loayza
Tamayo Case, Preliminary Objections, Judgment of January 31, 1996,
Series C Nº 25, paragraph 40.
Adopted at Belém do Pará, Brazil, on July 9, 1994, during the twentieth
regular session of the General Assembly. In force since March 28, 1996;
ratified by Guatemala on February 25, 2000.
Inter-Am.Ct.H.R., Blake Case,
Preliminary Objections, Judgment of July 2, 1996. Series C Nº 27, paragraph
Ibid., paragraph 39.