In the Myrna Mack Chang case,

the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”), composed of the following judges:

Antônio A. Cançado Trindade, President;
Sergio García Ramírez, Vice-President;
Hernán Salgado Pesantes, Judge;
Máximo Pacheco Gómez, Judge;
Oliver Jackman, Judge;
Alirio Abreu Burelli, Judge;
Carlos Vicente de Roux Rengifo, Judge; and
Arturo Martínez Gálvez, Judge ad hoc;

also present,*

Manuel E. Ventura Robles, Secretary,

pursuant to Articles 29, 55, 56 and 57 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”) and to article 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) issues the instant Judgment.

I
INTRODUCTION OF THE CASE

1. On June 19, 2001, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) filed before the Court an application against the State of Guatemala (hereinafter “the State” or “Guatemala”), originating in complaint Nº 10.636, received at the Secretariat of the Commission on September 12, 1990.

2. The Commission filed the application on the basis of Article 51 of the American Convention, for the Court to decide whether the State violated Articles 4 (Right to Life), 8 (Right to Fair Trial), 25 (Judicial Protection) in combination with Article 1(1) (Obligation to Respect Rights) of the American Convention to the detriment of Myrna Elizabeth Mack Chang (hereinafter “Myrna Mack Chang”) and her next of kin, “due to the extra-legal execution of Myrna Mack Chang [that took place] on September 11, 1990 in Guatemala City.”

3. The Commission also asked the Court to order the State to make all the pecuniary and non-pecuniary reparations stated in the application. Finally, it asked the Inter-American Court to order Guatemala to pay the costs arising from processing of the case both domestically and internationally before the bodies of the Inter-American System for Protection of Human Rights.

4. According to the Commission, Guatemala is responsible for the arbitrary deprivation of the right to life of Myrna Mack Chang, because the murder of the victim, committed on September 11, 1990, was the consequence of a military intelligence operation, springing from a prior plan and carefully prepared by the high command of the Presidential General Staff. Said plan involved, first, selecting the victim in a precise manner due to her professional activity; second, brutally murdering Myrna Mack Chang; and third, covering up the direct perpetrators and accessories of the murder, obstructing the judicial investigation and insofar as possible ensuring that impunity prevailed with respect to the murder. The Commission added that the State has not resorted to all the means available to it with the aim of conducting a serious and effective investigation that could be the basis for complete elucidation of the facts, prosecution, trial, and punishment of those responsible, both direct perpetrators and accessories, within a reasonable term. This situation has been made worse by the existence of de facto and legal mechanisms, tolerated by the Guatemalan State, that obstruct adequate administration of justice.

II
COMPETENCE

5. Guatemala has been a State Party to the American Convention since May 25, 1978, and it accepted the contentious jurisdiction of the Court on March 9, 1987. Therefore, the Court is competent to hear the instant case, pursuant to the terms of Articles 62 and 63(1) of the Convention.

III
PROCEEDING BEFORE THE COMMISSION

6. On September 12, 1990, the Comisión Guatemalteca de Derechos Humanos [or Guatemalan Human Rights Committee] filed the complaint before the Inter-American Commission and since April, 1991, the Lawyers Committee for Human Rights and Georgetown University continued the case. Several United States law firms participated in the proceeding, as co-applicants, together with the Lawyers Committee for Human Rights.

7. On September 17, 1990, the Commission opened the case as Nº 10.636.

8. On March 5, 1996, the Commission adopted Report Nº 10/96 in which it declared the case admissible. The Commission also made itself available to the parties with the aim of attaining a friendly settlement of the matter, pursuant to Article 48(f) of the American Convention.

9. On March 3, 2000, the Guatemalan State recognized its “institutional responsibility” in the instant case, during a public hearing at the seat of the Inter-American Commission. On that same date, the State and the applicants reached an agreement to advance the criminal proceedings under domestic jurisdiction, for which they established a verification committee in which they agreed to “come together through willingness to reactivate the respective investigation and further the judicial proceeding underway in Guatemala.”

10. On May 26, 2000, the applicants and the State signed an agreement on the way the verification should take place, and on June 22 of that same year they signed an agreement on the framework and the start of the “verification,” on impelling reactivation of the judicial proceeding, on verification actions and reports as well as on procedural thrust, communication among the parties, and publication of said reports.

11. On July 25 and 26, 2000, the Inter-American Commission officially appointed Alfredo Balsells Tojo and Gabriela Vásquez Smerilli as the verifiers.

12. On August 23 and October 4, 2000, the verifiers submitted their first and second reports, respectively, to the Commission. In the latter report, the verifiers reached the conclusion “that the proceeding against the military accused of being the accessories of the murder of anthropologist Myrna Elizabeth Mack Chang began in 1994 and to date we cannot envision that it will move forward in the future without judicial obstacles, because from the start there have been all sorts of challenges that have obstructed compliance with due process in the development of the case.”

13. On October 5, 2000, during a hearing before the Commission, Gabriela Vásquez Smerilli presented the second verification report regarding the criminal proceeding. At that same hearing, the applicants affirmed that they did not see any serious commitment and willingness of the State to move the case forward so as to try and to effectively punish the accessories of the murder of Myrna Mack Chang, for which reason they would no longer consider the possibility of reaching a friendly settlement in this case.

14. On March 8, 2001, the Commission, pursuant to Article 50 of the Convention, adopted Report Nº 39/01, in which it reached the conclusion that:

[t]he acknowledgment of responsibility by the Guatemalan State has full juridical value in accordance with the principles of international law and place[s] it under to obligation to effectively redress the violations it committed, pursuant to the provisions of the American Convention. Over a year after the acknowledgment of responsibility, the Guatemalan State has undertaken no effective actions to lift the cloak of impunity that still exists regarding the accessories of the extra-legal execution of Myrna Mack. Such inaction by the Guatemalan State leads the Commission to affirm that the State of Guatemala continues to lack a serious willingness to investigate and effectively punish all those responsible for the murder of Myrna Mack Chang in accordance with the provisions of the American Convention on Human Rights.

[…]
Based on these conclusions, the Commission made the following recommendations to the State:

1. To conduct a complete, impartial and effective investigation with the aim of trying and punishing all participants in the murder of Myrna Mack Chang.

2. To adopt all necessary measures for the next of kin of Myrna Mack Chang to receive adequate and timely reparation for the violations found here.

3. To remove all obstacles and de facto and legal mechanisms that maintain impunity in the instant case.

4. To replace the Presidential General Staff as soon as possible in compliance with the agreement and as set forth in the Peace Accord.

15. On March 19, 2001 the Commission sent the aforementioned report to the State and granted it two months to comply with its recommendations. On May 18 of that same year, the State requested of the Commission a ten-day extension to submit its report on compliance with the recommendations, and the request was granted.

16. On May 30, 2001, the State submitted its reply to Report N° 39/01 by the Commission.

17. On June 14, 2001 the Commission decided to submit the case to the jurisdiction of the Court.

IV
PROCEEDING BEFORE THE COURT

18. The Commission filed the application before the Court on June 19, 2001, and attached 52 annexes. The Commission also sent various documents, issued after the application was filed, in connection with the domestic criminal proceeding and press reports.

19. Pursuant to Article 22 of the Rules of Procedure, the Inter-American Commission appointed Claudio Grossman as Delegate, and Ariel Dulitzky as legal advisor. Pursuant to Article 33 of the Rules of Procedure, the Commission also stated the names and addresses of the next of kin of Myrna Mack Chang and informed the Court that the latter would be represented by the sister of the victim, Helen Mack Chang.

20. On July 26, 2001, the Secretariat of the Court (hereinafter “the Secretariat”), after a preliminary examination of the application by the President of the Court (hereinafter “the President”), notified the State, including the annexes, and informed it of the terms to answer the application and to appoint its agents in the proceeding. That same day, the Secretariat also informed the State of its right to appoint an ad hoc Judge to participate in consideration of the instant case.

21. On that same date, pursuant to the provisions of Articles 35(4), 35(1)d) and 35(1)e) of the Rules of Procedure, the application was notified to the representatives of the next of kin of the victim, and to Helen Mack Chang, for them to submit their brief with requests, pleadings, and evidence.

22. On August 6, 2001, the representatives of the next of kin of the victim filed a note together with which they forwarded a copy of the power of attorney granted by Helen Mack Chang, who in turn had been appointed as proxy for the other next of kin of Myrna Mack Chang, in favor of Alberto Bovino; Jeff Clark, representing the Lawyers Committee for Human Rights; Elijah Barret Prettyman Jr., Lyndon Tretter, Taylor Lee Burke, Shannon Tovan MacDaniel and David Kassenbaum, of the United States law firm Hogan & Hartson; and Viviana Krsticevic and Roxanna Altholz representing the Center for Justice and International Law (hereinafter “CEJIL”) to represent the next of kin of the victim before the Court. They also appointed Taylor Lee Burke as common intervener.

23. On August 23, 2001, the State reported that it had appointed Francisco Villagrán Kramer as Judge ad hoc and Jorge García Laguardia as Agent.

24. On August 31, 2001, the representatives of the next of kin of the victim submitted their brief with requests, pleadings, and evidence. On September 13, 2001, they also submitted the original brief and its annexes. In the aforementioned brief, said representatives asked the Court to find that Guatemala violated Articles 4, 8, 25 and 1(1) of the American Convention to the detriment of the victim and Articles 5, 8, 25 and 1(1) of that same Convention to the detriment of her next of kin. They furthermore requested that the State be ordered to adopt various pecuniary and non-pecuniary measures of reparation, as well as to pay the costs derived from processing of the case both under domestic jurisdiction and before the bodies of the inter-American system for the protection of human rights. On November 1, 2001, the Commission submitted its observations on the brief filed by said representatives, ratifying the application in its entirety and stating that it had no specific objections to their requests.

25. On September 26, 2001, Guatemala submitted its brief answering the application, in which it filed nine preliminary objections, together with its annexes. In said brief, the State requested that the Court consider the application answered negatively regarding the non-disputed parts and those on which it did not state an explicit acknowledgment. Furthermore, it requested that, based on the preliminary objections raised, the Court rule the application filed by the Commission inadmissible. On October 30, 2001, the Secretariat, following instructions by the President, granted a 30-day term, beginning on the date of receipt of said brief, for the Commission and the representatives of the next of kin of the victim to submit their written pleadings on the preliminary objections filed by the State.

26. On November 29, 2001, the Commission filed its brief with observations on the preliminary objections, in which it requested that they be rejected.

27. On November 30, 2001, the representatives of the next of kin of the victim submitted their brief with observations on the preliminary objections filed by the State and its annexes, and they expressed that the Commission conclusively addressed the considerations that make it necessary to reject all the preliminary objections filed by the State, and they stated their agreement with said arguments.

28. On August 28, 2002, the representatives of the next of kin of the victim filed a brief in which they objected to Francisco Villagrán Kramer as Judge ad hoc in the instant case.

29. On October 3, 2002, the State reported that it had appointed Arturo Martínez Gálvez as Judge ad hoc in the instant case, in substitution of Francisco Villagrán Kramer.

30. On November 8, 2002, the Secretariat asked the Commission and the representatives of the next of kin of the victim to submit a definitive list of witnesses and expert witnesses, respectively, to consider summoning them to a public hearing.

31. On November 21, 2002, the representatives of the next of kin of the victim filed a brief in which they reiterated their offer of six expert witnesses: Mónica Pinto, Katharine Doyle, Bernardo Morales, Alicia Neuburger, Iduvina Hernández, and Javier Llobet Rodríguez, and they desisted from the offer of the following six expert witnesses: Christian Tomuschat, Allan Brewer-Carias, Rodolfo Robles Espinoza, Héctor Rosada, Francisco Chávez Bosque, and Frank La Rue. They also reiterated their offer as witnesses of the following eight persons: Helen Mack Chang, Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Clara Arenas Bianchi, Henry Monroy Andrino, Lucrecia Hernández Mack, and Carmen de León-Escribano Schlotter, and they desisted from offering the testimony of Rubio Caballeros Herrera. They also offered, for the first time, Nadezhda Vásquez Cucho as a witness. Finally, said representatives requested that Gabriela Vásquez Smerilli appear as a witness rather than as an expert witness, as they had originally proposed.

32. On November 21, 2002, the Commission filed a brief in which it reiterated its offer of expert witness Mónica Pinto and it desisted from its offer of the other expert witnesses proposed. The Commission also reiterated its offer of the following seven witnesses: Helen Mack Chang, Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Clara Arenas Bianchi, Henry Monroy Andrino, and Lucrecia Hernández Mack, and it desisted from its offer of witness Rubio Caballeros Herrera. For the first time, it proposed Nadezhda Vásquez Cucho as a witness. Finally, the Commission included as a witness in the definitive list Gabriela Vásquez Smerilli, whom they had originally offered as an expert witness.

33. On November 22, 2002, the Secretariat forwarded to the State the definitive list of witnesses and expert witnesses proposed by the Commission and the representatives of the victim, and granted them until the 27th of that same month and year to submit whatever observations they deemed pertinent.

34. On November 27, 2002, Guatemala submitted its observations on the offer of witnesses and expert witnesses made by the Commission and the representatives of the next of kin of the victim. Guatemala stated that it had no objections to the witnesses, but that regarding the expert witnesses it could not state its position because it did not have any background on them, for which reason it asked the Court to forward the curricula vitae of the expert witnesses proposed “to be able to state its position on [their] participation.” In said brief, the State also reserved the right to offer and propose its witnesses and expert witnesses in the instant case, before the ruling on the preliminary objections raised. On November 29, 2002, the Secretariat, following instructions by the President, informed the State that it had already forwarded to the State, on July 26, 2002, the curricula vitae of the expert witnesses proposed by the Commission and by the representatives of the next of kin of the victim.

35. On November 30, 2002 the President issued an Order in which he admitted the testimony and expert opinions offered by the Commission and by the representatives of the next of kin of the victim. He also summoned the parties to a public hearing to be held at the seat of the Inter-American Court, beginning on February 18, 2003, to hear their final oral pleadings on preliminary objections, the merits, and possible reparations, as well as the testimony of Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Henry Monroy Andrino, Lucrecia Hernández Mack, Helen Mack Chang, Gabriela Vásquez Smerelli, and Nadezhada Vásquez Cucho and the expert opinion of Mónica Pinto proposed both by the Commission and by said representatives. He also decided to hear the expert opinion of Katharine Doyle, Alicia Neuburger, Iduvina Hernández, and Javier Llobet Rodríguez, offered only by the representatives of the next of kin of the victim. Finally, he ordered that the testimony of Clara Arenas Bianchi and Carmen de León-Escribano Schlotter and the expert opinion of Bernardo Morales Figueroa be received in writing.

36. On January 17, 2003, the representatives of the next of kin of the victim asked the Court, based on Article 43 of the Rules of Procedure, to summon Henry El Khoury Jacob as an expert witness during the public hearing ordered, in substitution of Javier Llobet Rodríguez, because the latter was appointed as a Judge of the Criminal Court of Appeal in Costa Rica “[and] his participation [in the public hearing] faces insuperable logistic and ethical difficulties.” On January 21, 2003, the Secretariat, following instructions by the President, addressed the Commission and the State for them to submit whatever observations they deemed pertinent regarding the requested substitution of the expert witness, before the 27th of that same month and year. Neither the Commission nor the State objected to said substitution.

37. On January 17, 2003, the representatives of the next of kin of the victim sent the sworn written statements of Carmen de León-Escribano Schlotter and Clara Arenas Bianchi and the expert opinion of Bernardo Morales Figueroa.

38. On January 20, 2003, Helen Mack Chang sent a letter in which she rescinded the previous power of attorney in favor of attorneys Taylor Lee Burke and Jeff Clark and she granted a power of attorney to Alberto Bovino, Robert O. Varenick, Elijah Barret Prettyman Jr., Lyndon Tretter, Shannon Tovan McDaniel, David Kassebaum, Viviana Krsticevic, and Roxana Altholz. She also appointed David Kassebaum as common intervener.

39. On January 30, 2003, the President issued an Order in which he accepted the offer of expert witness Henry El Khoury Jacob as a substitute for Javier Llobet Rodríguez, for him to render an expert opinion during the public hearing to be held beginning on February 18, 2003, in the instant case.

40. On February 14, 2003, the State submitted a brief in which it stated that it had decided to maintain and reiterate before the Court, in the same and literal terms stated before the Commission in March, 2000, “the international acceptance of its Institutional Responsibility in the Myrna Mack Chang case No. 10,636.”

41. On February 17, 2003, the Secretariat, under instructions by the full Court, asked the Commission and the representatives of the next of kin of the victim to submit whatever observations they deemed pertinent regarding the February 14, 2003 communication by the State. Said observations were received on the 17th of that same month and year (infra paras. 76 and 77).

42. On February 18, 2003, during the preliminary meeting before the public hearing summoned for that day, the State submitted a brief entitled “brief modifying the answer of the State of Guatemala to the application filed by the Inter-American Commission on Human Rights in the Myrna Mack Chang Case No. 10,636 of July 26, 2001,” in which it desisted from the preliminary objections filed.

43. On February 18, 2003, the Court held the public hearing summoned in the instant case, at its seat, and at which there appeared:

for the Inter-American Commission on Human Rights:

Claudio Grossman, Delegate;
Eduardo Bertoni, representative; and
María Claudia Pulido, advisor;

for the representatives of the next of kin of the victim:

Alberto Bovino, representative;
Roxanna Altholz, on behalf of CEJIL;
Elijah Barret Prettyman Jr., of Hogan & Hartson L.L.P.;
Lyndon Tretter, of Hogan & Hartson L.L.P.;
Shannon Tovan McDaniel, of Hogan & Hartson L.L.P.; and
David Kassebaum, of Hogan & Hartson L.L.P.;

for the State of Guatemala :

Ricardo Alvarado Ortigoza, Ambassador of the State of Guatemala before the Permanent United Nations Mission; and
Cruz Munguía Sosa, Deputy Executive Director of the Presidential Human Rights Committee;

witnesses proposed by the Commission and by the representatives of the next of kin of the victim:

Monsignor Julio Cabrera Ovalle;
Virgilio Rodríguez Santana;
Rember Larios Tobar;
Henry Monroy Andrino;
Lucrecia Hernández Mack;
Helen Mack Chang; and
Gabriela Vásquez Smerilli;
Nadezhada Vásquez Cucho;

expert witness proposed by the Commission and by the representatives of the next of kin of the victim:

Mónica Pinto;

expert witnesses proposed by the representatives of the next of kin of the victim:

Katharine Doyle;
Alicia Neuburger;
Iduvina Hernández; and
Henry El Khoury Jacob.

44. At the start of the public hearing, on February 18, 2003, the Stated desisted from all the preliminary objections and reiterated what it stated in the brief submitted before the beginning of that hearing (supra para. 42). The Commission and the representatives of the next of kin of the victim, in turn, referred to the statement by Guatemala.

45. On February 18, 2003, the Court issued an Order in which it decided to receive the waiver by the State of the preliminary objections it had filed, and to continue the public hearing summoned in the Order of the President of November 30, 2002, as well as the procedural actions pertaining to the proceedings on the merits and possible reparations in the instant case.

46. On the second day of the public hearing, on February 19, 2003, after the first four witnesses, the Agent for Guatemala stated before the Court the decision of the State to withdraw from the public hearing and to return during its conclusion “to state its final position regarding this hearing.”

In this regard, the President stated that:

[w]ith respect to what the Agent has stated, I merely wish to read the provision of the Rules of Procedure of the Court in case of inaction. The Rules of Procedure provide, in Article 27, paragraph 1, that when a party abstains from acting the Court will, on its own motion, further the proceedings until their completion. And in paragraph two, “when a party enters a case at a later stage of the proceedings, it shall take up the proceedings at that stage.” Therefore, we await the presence of the State to present its final position at the appropriate time in these public hearings.

After this, the Agents of the State withdrew from the public hearing, which continued that same day with the testimonies and expert opinions ordered and presentation of a video recording of an interview with Noel de Jesús Beteta Álvarez. On the following day, February 20, 2003, the Agents of the State appeared once again at the public hearing to make their final oral pleadings. The representatives of the next of kin of the victim and the Commission, in turn, presented their final oral pleadings. The Commission also presented a copy of Communiqué No. 032-2003 of February 19, 2003 of the Ministry of Foreign Affairs entitled “[e]l Estado de Guatemala contribuye a la justicia en el Caso Mack Chang aceptando la responsabilidad institucional ante la Corte Interamericana de Derechos Humanos” [“[t]he State of Guatemala contributes to justice in the Mack Chang Case accepting its institutional responsibility before the Inter-American Court of Human Rights”].

47. On February 24, 2003, the State submitted a brief in which it reported on the “true scope of the acceptance of responsibility by Guatemala in the Myrna Mack Chang case.” In this regard, on February 25, 2003, the Secretariat, following the instructions given by the Judges of the Court, granted the Commission and the representatives of the next of kin of the victim until March 3, 2003, to submit their observations on said brief by the State, and these were received that day.

48. On March 3, 2003 the State submitted a brief entitled “Documento aclaratorio del reconocimiento de responsabilidad internacional por parte del Estado de Guatemala en el caso 10.636 ‘Myrna Mack Chang’” [“Document clarifying the acknowledgment of international responsibility by the State of Guatemala in the ‘Myrna Mack Chang’ case No. 10,636”]. In said document, the State explained “the mistake made in the note it [sent] on February 14 and, specifically, in the presentation made by the State of Guatemala before the [...] Court at the public hearing on February 18 of this year.”

49. On March 14, 2003, the Commission and the representatives of the next of kin of the victim submitted their observations on the aforementioned March 3, 2003 document filed by the State.

50. On May 6, 2003, the Secretariat informed the parties that, following instructions by the President, it granted them until June 9 of that same year to submit their final written pleadings.

51. On June 10, 2003, the representatives of the next of kin of the victim sent their final written pleadings and their annexes.

52. On June 24, 2003, after being granted an extension, the Commission submitted its final written pleadings.

53. The State did not submit final written pleadings within the term allowed for this purpose.

54. On August 6, 2003, the Secretariat, following instructions by the President, pursuant to Article 44 of the Rules of Procedure, asked the Commission, the representatives of the next of kin of the victim and the State to submit the life expectancy indexes for Guatemala from 1990 to the present, as well as the rate of variation of the consumer price indexes from 1998 to the present, as evidence to facilitate adjudication of the case. That same day, it also asked the Commission, as evidence to facilitate adjudication of the case, for the birth certificate of Vivian Mack Chang, and it asked the representatives of the next of kin of the victim for a certification of the marriage of Myrna Mack Chang and Víctor Hugo Hernández Anzueto; a certification of the marriage status of Myrna Mack Chang at the time of her demise; a copy of the case file of the ongoing criminal proceeding on the murder of Myrna Mack Chang from the October 4, 2001 ruling of the Constitutional Court of Guatemala, in which it designated the Second Chamber of the Court of Appeals to decide on the amparo remedy filed by Juan Oliva Carrera on July 23, 2001, to the present time, and copies of several actions carried out within the aforementioned criminal proceeding before October, 2001.

55. On September 4, 2003, the State submitted several documents that were requested as evidence to facilitate adjudication of the case. On September 5, 2003, the Commission and the representatives of the next of kin of the victim submitted the documents requested of them as evidence to facilitate adjudication of the case.

56. On September 4, 2003, the Secretariat, following instructions by the President, asked the State, pursuant to Article 44(1) of the Rules of Procedure, to send the following documents as evidence to facilitate adjudication of the case: a copy of the file of the ongoing criminal proceeding for the murder of Myrna Mack Chang from the October 4, 2001 ruling of the Constitutional Court of Guatemala, in which it designated the Second Chamber of the Court of Appeals to decide on the amparo remedy filed by Juan Guillermo Oliva Carrera on July 23, 2001, to the present time, and copies of several actions carried out within the aforementioned criminal proceeding before October, 2001.

57. On October 15, 2003, the State requested an extension to the period given to send the evidence to facilitate adjudication of the case, requested by this Secretariat (supra para. 54) and it submitted some of the documents requested. In this regard, the Secretariat, following instructions by the President, granted said extension until October 30, 2003. On October 24 and 27, 2003, the State submitted some of those documents.

VI
PROVISIONAL MEASURES

58. On August 9, 2002, the Inter-American Commission filed before the Inter-American Court, pursuant to Articles 63(2) of the American Convention and 74 of the Rules of Procedure of the Commission, a request for provisional measures in favor of Helen Mack Chang and the members of the Myrna Mack Foundation. In said brief, the Commission based its request on several facts that endangered the life and the safety of these persons because “there have been a number of threats and acts of harassment against witnesses, judges, prosecutors, policemen, attorneys, employees of the [Myrna Mack Foundation], and next of kin and friends of [Myrna Mack].”

59. On August 14, 2002, the President ordered adoption of urgent measures, in which he ordered the State to adopt, forthwith, such measures as might be necessary to protect the life and the personal integrity of Helen Mack Chang and of the members of the Myrna Mack Foundation.

60. On August 26, 2002 the Court decided to ratify in its entirety the August 14, 2002 Order of the President and to adopt, forthwith, such measures as might be necessary to protect the life and the personal integrity of Helen Mack Chang, Viviana Salvatierra and América Morales Ruiz, of Luis Romero Rivera and of the other members of the Myrna Mack Foundation.

61. On February 21, 2003, one day after the end of the public hearing held in the instant case, and in connection with a request by the representatives of the next of kin of the victim and the statements by expert witness Iduvina Hernández, the Court decided ex officio to expand the provisional measures. To this end, it ordered the State to adopt such measures as might be necessary to protect the life and personal integrity of the next of kin of Myrna Mack Chang, i.e.: Zoila Chang Lau, the mother; Marco Mack Chang, brother; Freddy Mack Chang, brother; Vivian Mack Chang, sister; Ronald Chang Apuy, cousin; Lucrecia Hernández Mack, daughter; and the latter’s children; as well as that of Iduvina Hernández.

62. On April 17, 2003, the Inter-American Commission filed before the Inter-American Court, pursuant to Articles 63(2) of the American Convention and 25 of the Rules of Procedure, a request for expansion of the provisional measures ordered in this case to protect Jorge Lemus Alvarado, “a witness in the case laid before the domestic courts” regarding the murder of Myrna Mack Chang, and his next of kin. In said brief, the Commission stated that Jorge Lemus Alvarado “has been suffering a number of grave acts of harassment and aggression by agents of the Guatemalan State.”

63. On April 25, 2003, the President of the Court decided to order the State to adopt, forthwith, such measures as might be necessary to protect the life and personal integrity of Jorge Lemus Alvarado and of his next of kin.

64. On June 6, 2003, the Court ratified the April 25, 2003 Order of the President and, in turn, ordered Guatemala to maintain the provisional measures in favor of all the persons protected by the previous Orders.

VI
ACKNOWLEDGMENT OF RESPONSIBILITY BY THE STATE

65. In the instant case there has been a dispute between the parties regarding the acquiescence and the scope of the acknowledgment of international responsibility by the State. For this reason, and in light of the provisions of Article 52 of the American Convention, the Court will decide on the validity and scope of the acquiescence and its juridical effects. To this end, it will now summarize the arguments of the State, as well as the respective pleadings of the Commission and of the representatives of the next of kin of the victim.

Arguments of the State and pleadings of the Inter-American Commission and of the representatives of the next of kin of the victim

66. On March 3, 2000, during a public hearing at the seat of the Commission, the State acknowledged its “institutional responsibility” in the instant case, in the following terms: “[t]he Government acknowledges the institutional responsibility of the State in the murder of Myrna Mack Chang, as well as delay and denial of justice.” At that time, the parties also signed an agreement that laid out certain commitments of the State with respect to the ongoing criminal proceeding under domestic jurisdiction.

67. At said hearing, the State also pointed out that “the new [G]overnment, echoing these situations, has proclaimed that the commitments undertaken in the Peace Accord are State commitments and due compliance with them is not open to question […]”.

68. That same day, in another document issued by COPREDEH, submitted to the Secretariat of the Commission, the State affirmed that:

the Government of Guatemala ratifies and reiterates that in the case of the murder of anthropologist Myrna Mack Chang it is evident, notorious, and there should be no discussion still seeking to question or deny said facts that took place in October, 1990 in the capital city of Guatemala.

[…]

What happened to Anthropologist Myrna Mack and her family is one of the paradigmatic cases ensuing from the our country’s legacy of 36 years of internal warfare, it is the past, in a war in which there was no system of law, nor was there an efficient and effective administration of justice. This is one of the many human rights violations that fatidically took place at that time.

In a certain manner, the context of an internal armed conflict in which the armed forces developed their own strategies of counterinsurgency and indiscriminate repression, should be evaluated as a strong probability of subordination of the administration of justice to military influence, as factors that may have had an impact on the difficulties and irregularities in the proceeding, and which the applicant has repeatedly pointed out in the instant case.
The fact that the direct perpetrator of the murder of the anthropologist was, when he committed the act, a specialist of the Guatemalan Army, as was stated in the judgment [that found him guilty], in fact entails possible institutional responsibility of the State, which can also ensue due to the inactivity, delay, and slowness of the proceeding against other Army officers who have been mentioned, opened by order of the Supreme Court of Justice.

Without addressing and analyzing the causes which the applicant gives for slow progress of the proceeding begun in February, 1994, the Government of Guatemala accepts and recognizes as a matter of special concern that after 6 years only the investigative phase has been completed, and that the trial hast not yet begun despite the fact that it was opened in January, 1999.

69. As was pointed out before, in Report Nº 39/01 of March 8, 2001, adopted pursuant to the provisions of Article 50 of the American Convention, the Commission reached the conclusion that the acknowledgment of responsibility made by the State has full legal value in accordance with the principles of international law and places it under the obligation to redress the violations committed by it, pursuant to the provisions of the American Convention. The State, one year after having acknowledged its responsibility, has not carried out actions to eliminate the impunity that still covers the accessories of the extra-legal execution of Myrna Mack Chang. The Commission maintains that Guatemala still lacks a serious will to investigate and punish those responsible for the murder of Myrna Mack Chang (supra para. 14).

70. In its May 30, 2001 brief (supra para. 16), in response to Confidential Report 39/01 of the Commission, the State argued that:

The Government of Guatemala […] explicitly and clearly stated that it would not address the causes of the delay, but rather it expressed its concern regarding said delay.

it does not share the view of the Commission (expressed in paragraph 29 of Confidential Report No. 39/01) that “[i]t is the understanding of the Commission that the acknowledgment of responsibility by the Guatemalan State in the instant case necessarily involves acceptance of the central facts alleged and with respect to which the Commission will carry out the respective analysis […],” because the Commission has misunderstood a clear and precise recognition by the State, from which it is not possible to derive extensive implications that seek to include total acceptance of the facts and of the allegations as the applicant does. Acknowledgment of institutional responsibility derived from the fact that a domestic court already established the involvement of an agent of the Presidential General Staff, for which fact he was convicted in the trial. The Supreme Court of Justice also left open a proceeding with respect to the accessories of the murder of Myrna Mack Chang.

[…]

Likewise, the Government of Guatemala rejects the view of the Commission with respect to the acknowledgment by the State covering the following points: the high command of the Presidential General Staff at the time of the facts issued explicit orders to Noel de Jesús Beteta Alvarez, to murder Myrna Mack Chang due to the victim’s professional activities; 2) Members of the high command of the Presidential General Staff at the time of the facts, together with other officials of that Institution prepared a prior plan to murder Myrna Mack; 3) Taking advantage of their positions at the time, or subsequently through their “subterraneous” influences, it is they who have obstructed effective administration of justice in this case.” The State of Guatemala regrets the excessive interpretation that seeks to encompass situations that were not acknowledged by the members of the Guatemalan delegation.

71. The State also objected to the aforementioned points of the Commission’s Report, because:

they were never acknowledged, because if said acknowledgment had existed it would have been contrary to the independence of the branches of the State, since the Political Constitution of the Republic of Guatemala establishes that the function of trying and promoting execution of judgments lies exclusively in the Judiciary Body and the Courts of Law. Furthermore, if an acknowledgment such as that argued by the Commission had existed, the Government of Guatemala would have been pre-judging a matter that is still before the courts of law to be studied, analyzed, and decided.

[…]

[T]he Government of Guatemala does not agree, either, with the view of the Commission that “understands” that acknowledgment of responsibility by the State encompasses: 1) that there was obstruction of justice by agents of the State of Guatemala, especially by members of the Army, with the aim of fostering impunity of the accessories of the murder of Myrna Mack; 2) that there have been threats and intimidation carried out by Agents of the State against witnesses, judges, prosecutors, and other legal operators with the aim of fostering impunity in this case; that there has been negligence and unwillingness of the judicial authorities in processing of the judicial proceeding to try and to punish all those responsible for the murder of Myrna Mack, especially what they say regarding punishment of members of the high command of the General Staff at the time of the facts because they deliberately planned and ordered the execution of Myrna Mack.

The Government of Guatemala never acknowledged said points, but rather it pointed out that they might be “factors with a possible impact on the difficulties and irregularities of the proceeding.”

Finally, in said brief the State asked the Commission for “a modification of the conclusions” to its Report, bearing in mind that they are based on an acknowledgment that was not expressed in those terms.

72. In the application, the Inter-American Commission made the following statements:

[o]n March 3, 2000, the State of Guatemala acknowledged institutional responsibility in the instant case [for] the murder of Myrna Mack Chang, delay and denial of justice [,which] has full juridical value in accordance with the principles of international law […]

It was the understanding of the Commission, interpreting the acknowledgment of responsibility by the Guatemalan State in good faith, that it necessarily entailed acceptance of the central facts alleged by the applicants. Thus, in light of what the State had expressed in its acknowledgment of responsibility and of what is stated in the [...] evidentiary material included in its file, the Commission pointed out that the acknowledgment of responsibility meant, with respect to the right to life, that: 1) It was the high command of the Presidential General Staff at the time of the facts who issued explicit instructions to Noel de Jesús Beteta Álvarez to murder Myrna Mack Chang due to the professional activities of the victim; 2) Members of the high command of the Presidential General Staff at the time of the facts together with other officials of that institution developed a prior plan to murder Myrna Mack; 3) Members of the high command of the Presidential General Staff at the time of the facts, taking advantage of their positions at the time or subsequently through their “subterraneous” influences, have obstructed efficient administration of justice in this case.

With respect to the acknowledgment of responsibility by the Guatemalan State regarding violation of the rights to fair trial and to judicial protection, the Commission, through an interpretation in good faith and in light of what is stated [in the] existing evidentiary material, pointed out that the acknowledgment of responsibility by the Guatemalan State entailed: 1) that there has been an obstruction of justice by agents of the Guatemalan State, especially by members of the army, to foster impunity regarding the accessories of the murder of Myrna Mack; 2) that there have been threats and acts of intimidation by agents of the State against witnesses, judges, prosecutors and other legal operators with the aim of fostering impunity in this case; 3) that there has been negligence and unwillingness of the judicial authorities in the processing of the judicial proceeding to try and to punish all those responsible for the murder of Myrna Mack, especially with regard to punishing the members of the high command of the Presidential General Staff at the time of the facts, as it was they who deliberately planned and ordered the execution of Myrna Mack […]

In light of the information provided by the Guatemalan State on May 29, 2001, the State seeks to go against the scope of the acknowledgment of responsibility made by the State itself on March 3, 200[0] and the interpretation made by all the parties to the case and the Commission in good faith. The [Commission] notes that the conclusions it reached in Confidential Report No 39/01 and which it reaffirms in the instant application did not derive only from the acknowledgment of responsibility by the Guatemalan State, but rather that the Commission reached those conclusions after an exhaustive investigation of the various items of evidence supplied by the parties […] Nevertheless, the State complied neither with its international obligations derived from its acknowledgment of responsibility nor with the recommendations made by the Commission in its Report No. 39/01.

73. In its reply to the application of September 26, 2001, the State reiterated several of the arguments made in its last brief before the Commission; it asked that the application be deemed answered “negatively regarding the non-disputed parts of [said] brief and those on which it did not state an explicit acknowledgment.” Furthermore, it requested that based on the preliminary objections raised, the Court rule the application filed by the Commission inadmissible (supra para. 25).

74. In its brief with observations on the preliminary objections, the Commission argued that in its application it interpreted in good faith the acknowledgment of responsibility by the State and it understood that the scope of the latter necessarily involved acceptance of the “central facts” alleged by the applicants. In addition, that both in its May 29, 2001 brief and in its brief on preliminary objections, the State once again disavowed its explicit acknowledgment of responsibility and raised an objection regarding the competence of the Court, thus contradicting its previous position. The Commission also requested that the preliminary objections raised by the State be rejected for lack of legal and factual grounds (supra para. 26).

75. As was summarized above (supra para. 40), on February 14, 2003, the State submitted a new brief requesting that the public hearing be called off, and at the same time explaining the scope of the acknowledgment of institutional responsibility, and it affirmed that:

[…] it has decided to maintain and reiterate before [the Inter-American Court of Human Rights], in the same and literal terms stated before the Inter-American Commission on Human Rights in March, 2000, the international acceptance of its Institutional Responsibility in the Myrna Mack Chang case No. 10,636.

76. With respect to the aforementioned brief, on February 17, 2003 the Commission stated that the institutional acknowledgment by Guatemala “reproduces the terms of the acknowledgment of responsibility on March 3, 2000, prior to the decision by the [Commission] to submit the case to the jurisdiction of the [...] Court,” and that said acknowledgment “is not generic but partial and therefore it does not tend to fully elucidate the facts, nor is it an effective remedy for the violations that are the object of the application filed by the Commission.” Furthermore, the Commission deemed that “fully establishing the facts in [this] case, partly acknowledged by the State as not having been elucidated, constitutes a fundamental function of international monitoring, because it makes it possible to establish the truth of what happened through the inter-American system [...]”. Therefore, the Commission asked the Court to continue processing the case, to determine the scope of the acknowledgment of responsibility of the State and the facts that gave rise to the application; to determine the violations to the American Convention; and to order the appropriate reparations (supra para. 41).

77. The representatives of the next of kin of the victim, in turn, stated -referring to the February 14, 2003 brief by the State- that the “acknowledgment” made by the State is a “generic and vague” acquiescence that intends to “leave the case without substance” and “force the Court to move directly into the reparations stage,” without allowing the Court to rule on a number of facts directly pertaining to the merits of the instant case. They also stated that, “after twelve years, the next of kin of the victim and Guatemalan society have the right to obtain more than a presumption of responsibility […] they have a right to the truth through full elucidation of the facts” (supra para. 41).

78. On February 18, 2003, during the preliminary meeting with the parties prior to the public hearing summoned for that same day, the State submitted a “brief modifying the answer of the State of Guatemala to the application filed by the Inter-American Commission on Human Rights in the Myrna Mack Chang Case No. 10,636 of July 26, 2001” (supra para. 42), in which it reiterated several arguments made in its answer to the application and, furthermore, stated the following:

as a consequence of what it has stated before the [...] Commission [...] on March 3, 2000 and of partial ratification of the answer to the application made in the immediately preceding section of this brief, it must desist from the preliminary objections raised on September 26, 2001 […].

With respect to the preliminary objection regarding erroneous and extensive interpretation of the acknowledgment made by the State, it pointed out that it desisted from it “because it was filed as preliminary” objection, but asked the Court to take its content into account when it issues its judgment on the merits.

79. In addition, in said brief the State established that it accepted the following facts:

a) Violation of the rights to life, to humane treatment and dignity of the human person committed against Myrna Mack Chang on September 11, 1990, for which Noel de Jesús Beteta Alvarez was convicted by a competent Court that found him guilty of being the direct perpetrator, and that same court identified him as an agent of the State at the time he committed that act.
b) The institutional responsibility of the State for the infringements of the law incurred by the agent of the State Noel de Jesús Beteta Alvarez in the aforementioned facts, pursuant to Article 155 of the Political Constitution of Guatemala.
c) The institutional responsibility of the State when, in non-compliance with Article 3 of the Political Constitution of Guatemala [...] and Article 4 of the American Convention […], it did not ensure the right to life and to humane treatment of Myrna Mack Chang.
d) The institutional responsibility of the State for the slow progress of the proceeding in which [...] there was evidently:
• Slow progress of the proceeding that began in February, 1994, to identify and punish the accessories of the violation of the right to life of Myrna Mack Chang;
• Unexplainable delay in a judiciary proceeding, stated above, that surpassed the reasonable term set forth in paragraph 1 of Article 8 of the American Convention […];
• Violation of the rights of applicant Helen Mack Chang to access to justice and to respect for the principles of due process and the guarantees set forth in that same first paragraph of Article 8 of the American Convention […].

80. The State, in turn, pointed out that it was making “a partial acceptance of the facts alleged by [Helen Mack Chang], as the latter alleges other [facts] that the State of Guatemala is not institutionally able to accept, such as all those that the Commission has interpreted extensively, in its own manner […].” Derived from the above, the State “can neither ignore nor deny the rights that applicant Helen Mack Chang […] has in substantive and procedural terms.” The State also expressed that:

it is necessary to place on the historical record that the State of Guatemala cannot, based on the acknowledgment of the aforementioned institutional responsibilities, violate the independence of its domestic legal system, and it is not able to decide on the measures of reparation without facing its internal audit and oversight system regarding management of public resources by the General Comptrollership. The above entails the need for said determination to be made by issuing of a judgment by a competent judicial body, either domestic or international, or –if there were the possibility of a friendly settlement approved by a competent authority- an agreement that could be discussed with applicant Helen Mack Chang.

81. Finally, the State pointed out that it submits to the international jurisdiction of the Court for “[d]efinition of the scope of its institutional responsibility in the instant case and the effects derived from it regarding reparations;” that it was appropriate for the Court to continue the reparations stage of the proceeding, and that the public hearing summoned was unnecessary.

82. At the start of the public hearing on February 18, 2003, the State reiterated orally its waiver of all the preliminary objections and it expressed that:

[…] the State of Guatemala deemed it necessary to modify its July 26, 2001 answer to the application, and therefore the object of that modification of the answer to the application is as follows: first, it ratifies what it stated at that time regarding the actions of the State of Guatemala before the Inter-American Commission on Human Rights. That is to say, it ratifies the acknowledgment of responsibility made before the Commission and it ratifies its willingness to establish a committee to monitor and further the domestic criminal proceeding taking place at the time in Guatemala, with the known consequences, that it failed for lack of cooperation by certain bodies the Guatemalan State. Second, it modifies the reply to the application in terms of waiving all preliminary objections raised by the State of Guatemala when it answered the application. Third, it modifies the answer to the application, accepting the facts alleged by the applicant and the Inter-American Commission on Human Rights regarding that same responsibility that the State has with respect to the violations of the right to life of Myrna Mack Chang and denial of justice to applicant Helen Mack Chang. The State of Guatemala explains that it does not refer to the causes or motives stated by the distinguished applicant regarding that denial of access to the system of justice and the violations that may have occurred regarding the principle of due process. Fourth, it accepts the rights of the next of kin of the victim, especially of applicant Helen Mack Chang, and finally, it modifies the answer to the application by expressing that the State of Guatemala reiterates its submission to the international jurisdiction of the […] Inter-American Court of Human Rights for it to decide on the scope of this acknowledgment and, subsequently, to establish the measures of reparation.

[…]

Ratification of the aforementioned aspects is based on the following: even though the Head of State represents national unity according to the Political Constitution of the Republic of Guatemala, the Head of State cannot take on judicial powers, even less so when there is a domestic proceeding that, while slow, institutionally cannot be invaded by the competence of other bodies of the State, circumstances that in any case are to be judged by the […] Inter-American Court of Human Rights. Secondly, intervention by the Inter-American Commission on Human Rights [before] this […] Court is legitimate insofar as it will be, as said Commission has also stated, for this [...] Court to rule on the international responsibility of the State in the facts that gave rise to this case and not on the wrongdoing, guilt and possible responsibility of individuals subject to the jurisdiction of the domestic legal system in Guatemala, a statement made by the Inter-American Commission in its reply to the objections filed. Therefore, the State of Guatemala waives all the preliminary objections raised in its original answer to the application on June 26, 2001. With respect to the last objection, defined as the erroneous and extensive interpretation of the acknowledgment made by the State of Guatemala, it is necessary to emphatically state that, for true hearing of the instant case, it follows from the statement above that while the State waives the last objection, it does so because it was filed as a preliminary objection. It does not desist thereof because it disagrees with its substantive arguments, which have been reiterated above, and for them to be taken into account when the judgment on the merits in the instant case is issued.”

83. During said public hearing, the representatives of the next of kin of the victim referred to the expressions of the State, arguing that it is enabled to “admit its complicity” regarding the acts of its bodies without this involving prejudgment of the rights of specific individuals. Said representatives also pointed out several facts pertaining to the death of Myrna Mack Chang and the investigation and criminal proceeding that, in their opinion, the State did not mention in its acknowledgment of responsibility and that it is necessary to determine so as to establish the truth in this case.

84. In turn, during the public hearing the Inter-American Commission stated that the partial acknowledgment of responsibility by the State before the Court had already occurred before the Commission; that said acknowledgment is based on the Political Constitution of the State and not on International Law; that it does not clearly establish the facts for which it deems that it is responsible; and that it does not specify the rights that it acknowledges were breached. The Commission also pointed out that the Court could consider the scope of this partial and generic acknowledgment when it issues its judgment on the merits.

85. That same day, February 18, 2003, the Court issued an Order in which it established that the State had waived all the preliminary objections raised in its answer to the application; that there continued to be a dispute between the parties regarding the scope of the acknowledgment of responsibility by the State regarding the facts and the rights; and that “partial acceptance of the facts and the rights” expressed by the State did not interrupt the process of receiving the evidence ordered. Therefore, it decide to admit, for all relevant effects, the waiver by the State of the preliminary objections that it had raised, and to continue with the public hearing that was summoned (supra para. 45).

86. On the second day of the public hearing, February 19, 2003, after the first four witnesses had been heard, the State expressed that:

yesterday it accepted, and it respected, rather than accepted, the decision of this [...] Court to continue the public hearing to receive testimonial evidence and expert opinions. The State of Guatemala also noted carefully the content of said statements and it has reached the conclusion that said statements do not refer to disputed facts and, on the other hand, they include points that are still being heard by the domestic legal system in Guatemala. As men of State, the representatives of Guatemala cannot remain in the hall to listen to testimony on facts on which our legal system has not yet decided. Therefore, with all due respect for this […] Inter-American Court of Human Rights and for the representatives of the victim and the representatives of the Inter-American Commission on Human Rights, the State of Guatemala has decided to withdraw from this stage and it will be present at the conclusion of the public hearing to state its final position with respect to this hearing. In this regard, we wish to ask permission of this Honorable Court to allow us to leave the hall.

After these statements, in connection with the expressions of the Agent of the State, the President of the Court, Judge Cançado Trindade, read the provisions regarding inaction by the parties, set forth in Article 27, paragraphs 1 and 2 of the Rules of Procedure, and he advised the parties of the need for the State to be present at the appropriate time to present its final pleadings at the public hearing. The Agents of the State then withdrew from the public hearing, but in accordance with the indications of the President of the Court, they returned to the hearing at the appropriate time to present the final oral pleadings of the State (supra para. 46).

87. During the public hearing, on February 19, 2003, the Ministry of Foreign Affairs of Guatemala issued a press release entitled “[e]l Estado de Guatemala contribuye a la justicia en el Caso Mack Chang aceptando la responsabilidad institucional ante la Corte Interamericana de Derechos Humanos” [“[t]he State of Guatemala contributes to justice in the Mack Chang case accepting institutional responsibility before the Inter-American Court of Human Rights”], in which it stated the following:

The Rules of Procedure de the Inter-American Court of Human Rights refer –in Article 52- to the general principle according to which a respondent State before this Court may inform the Court of its acquiescence to the claims of the applicant parties, that is, it may decide to accept its responsibility in the case being heard. […] Applying this principle, on last February 14, the State of Guatemala officially communicated to the [...] Court its decision to accept its institutional responsibility in the Myrna Mack Chang Case No. 10,636.
[…] Taking into account the practice of the Inter-American Court in all previous cases in which a respondent State accepted institutional responsibility, and based on the reasoning that this action by the State in fact concludes the evidentiary stage, the Government asked [the] Court to continue processing of the case by moving into the reparations stage foreseen in the proceeding.

On February 18, when they appeared before the Court, the Agents of the State of Guatemala ratified the acknowledgment of institutional responsibility for violation of the right to life of Myrna Mack Chang and for violation of the right of access to justice of the next of kin of the victim.

Despite said acknowledgment, which the State deemed sufficient for the respective judgment to be issued, the Honorable Court decided to continue the case hearing by receiving testimony regarding facts that are no longer disputed, in view of the acceptance of responsibility by the respondent State.

In face of this situation, deeming that they had fulfilled their role and their legal and historical responsibility before the Inter-American system for the protection of human rights, the Agents of the State of Guatemala decided, having received the consent of the [...] Court, to withdraw from the evidence-gathering stage to return at the appropriate time in the [...] hearing to present their final position regarding this case.

The State of Guatemala regrets that the good faith of its acknowledgment of the human rights violations by agents who compromised its institutional responsibility has not been fully appreciated and that, instead, it has been subjected to repetitive statements regarding facts that have already been accepted and others that are still being heard under domestic legal jurisdiction in Guatemala.

88. Having heard the testimony and expert opinions at said public hearing, on February 20, 2003 the State expressed in its final oral pleadings:

[w]e refrained from examining any of [the witnesses and expert witnesses] because we deem that after the acknowledgment of the State, reiterating its responsibility in the instant case, there is no dispute on the facts and points to which their statements referred. It is important to underline that the points on which testimony was rendered coincide with the acknowledgment by the State, for which reason, since they are not disputed facts, all we can do is await a judgment on the merits and a judgment on reparations, that this Honorable Court will issue.

89. In addition, with respect to a question asked by Judge Salgado Pesantes, on “whether there truly is an acquiescence by the State pursuant to the aforementioned Article 52 of the Rules of Procedure,” the State replied:

your honor, in accordance with juridical doctrine and the international rulings issued, no. Acquiescence is not in order when there is no explicit authorization by a State for its Agents. That authorization does not exist.

90. At the end of said hearing, the Inter-American Commission, in turn, stated that:

the State of Guatemala withdrew its preliminary objection regarding non-exhaustion of domestic remedies. Therefore, the issue of whether there are currently ongoing domestic proceedings in Guatemala is not being discussed, today, in the proceeding.

Second, we wish to point out that we are going to include in the procedure official communiqué 032-2003, entitled “el Estado de Guatemala contribuye a la justicia en el caso de Mack Chang aceptando la responsabilidad institucional en la Corte Interamericana,” where Article 52 of the Rules of Procedure is invoked, stating that it is an “acquiescence.” [S]uch a statement, if it is not denied, if it was not of course falsified, has a juridical value. It is an official statement that is expressly communicated within Guatemala. That is also why these proceedings are important and why we have insisted on the value of the official truth being told. Because if we are told that there is a simple, pure, unconditional acknowledgment, then partial acknowledgment, then acquiescence, and this is communicated, it appears as if the applicants for the victims have adopted a recalcitrant position. Yesterday we heard that it was not an acquiescence and not even absolute acknowledgment, and even now this statement invokes Article 52.

91. On February 24, 2003, the Minister of Foreign Affairs of Guatemala addressed a note to the President of the Court, in which he referred to the “true scope of the acknowledgment of responsibility by Guatemala in the Mack Chang case” (supra para. 47) and he stated:

[…] when I signed the note that I sent on February 14 of this year, I was not aware that the persons to whom I entrusted the drafting misinterpreted my instructions and, therefore, incurred in an unfortunate mistake when they limited the acceptance of international responsibility by Guatemala in the instant case to “the same and literal terms set forth before the Inter-American Commission on Human Rights in March, 2002.”

The instructions I gave in this regard were to simply and straightforwardly acknowledge the facts set forth in the application and, pursuant to the general principle stated in Article 52 of the Rules of Procedure of the Court, to inform [this] Court that Guatemala unconditionally accepted its international responsibility in the case.

I regret that this misunderstanding has caused the erroneous interpretation of my instructions by the Agents of the State of Guatemala, thus giving rise to questioning of the true scope of the acceptance of international responsibility in the Myrna Mack case (furthermore, the controversy regarding this case was extended by the fact that the Representatives of the State temporarily –and also unnecessarily- left the hearing, although I have been informed that they did so with your authorization. In Guatemala, however, this created the false impression that the State was in contempt of the Court).

Given these special circumstances, I wish to request [...] that the true will of the Government of Guatemala, expressed in the instant brief, to acquiesce absolutely, be recorded in the case file.

92. With respect to the aforementioned brief by the State, on March 3, 2003 the Commission filed its observations on that brief (supra para. 47), pointing out that Article 52 of the Rules of Procedure invoked by the State refers to the object of the acquiescence, for which reason the Commission interpreted that:

given the advanced stage of the proceeding, the February 24, 2003 acquiescence of the State does not only encompass the facts referred to in the application, but also all those that have been duly established by the Commission and by the representatives of the alleged victim in the various procedural stages, and specifically those proven in the public hearing.

The Commission also deemed it “crucial” for the Court to expressly issue a ruling on the scope and effects of the acquiescence and to establish that said acquiescence, to be valid, must encompass both the claims stated in the application and the facts proven and the requests made in the public hearings before the Court.

93. That same day, the representatives of the next of kin of the victim, in turn, submitted their observations on the February 24, 2003 brief by the State (supra para. 47), and they asked the Court to rule that said communication is not an acceptable acknowledgment of responsibility under the terms required by Article 52 of the Rules of Procedure of the Court. They deem that said brief “does not state anything substantive regarding the acquiescence and merely invokes said term as if that circumstance, in and of itself, was sufficient to fulfill the requirements of Article 52 of the Rules of Procedure.” They deemed that “an absolute acquiescence” consists of complete and unconditional acceptance of the facts and arguments alleged in the application by the next of kin of the victim and proven during the trial and, insofar as the State does not admit them, the dispute among the parties continues and “it must be decided by a ruling of the Court on the merits of the case.” In conclusion, they asked the Court:

unless the State sends a complete, unconditional and unqualified acceptance of the facts alleged and proven by the representatives of the next of kin of the victim and by the Commission, […] and a total acknowledgment of its international responsibility for the human rights violations committed, as they have been alleged and proven, its request must be turned down and the Court must decide on the merits of the matter.

94. On March 3, 2003, at the seat of the Court, the President of the Court, Judge Cançado Trindade, received the Minister of Foreign Affairs of Guatemala, Edgar Gutiérrez, who personally delivered to him the brief entitled “documento aclaratorio del reconocimiento de responsabilidad internacional por parte del Estado de Guatemala en el caso 10.636 ‘Myrna Mack Chang’” [document clarifying the acknowledgment of international responsibility by the State of Guatemala in the ‘Myrna Mack Chang’ case No. 10,636,” and he explained its content to him (supra para. 48). In said document, the State:

decided, inter alia, pursuant […] to Article 52 of the Rules of Procedure of the Court, to unconditionally accept the international responsibility of the State of Guatemala in the Myrna Mack Chang case. Therefore, he communicated to this [...] Court the acquiescence of Guatemala to the claims of the applicant party.

[…]

Pursuant to the general principle set forth in Article 52 of the Rules of Procedure of the Court, the State of Guatemala acknowledges the facts stated in the application and it unconditionally accepts its international responsibility in the instant case.

Recognition of the violation, in the instant case, of fundamental rights such as the right to life, the right to humane treatment, the right to judicial protection and the right to be heard with due guarantees by a competent judge or court entails, on the one hand, the responsibility already accepted by the State of Guatemala and, on the other, the obligation to investigate the facts that caused the violations, to punish those responsible, and to provide reparation for the damage caused by that grave violation.

[T]he State of Guatemala is willing to promptly, adequately and effectively comply with the pecuniary and non-pecuniary reparations decided at the appropriate time by the […] Court.

95. The State also asked the Court, “[p]ursuant to the instant acknowledgment of responsibility,” to disregard the arguments included in the brief answering the application, with respect to reparations for the damage and violation of Article 4 of the Convention. The State also expressed that:

[t]he international responsibility and, therefore, the obligation to redress, pursuant to the provisions of the American Convention […] in this case fall on the State and not on the accused persons who may be found responsible.

[…]

[R]egarding the issue of international responsibility it deems that, in principle, the State (any State) is responsible for violation of its obligations, without necessarily identifying the component of malice or negligence by its agents. In other words, without the necessity of “guilt” or negligence by the person who acted.

[…]

With respect to the issue of the individual responsibility that may fall to the persons mentioned in the application, the State […] deems that the […] Corte and the Inter-American Commission are not competent to rule on the matter, because this is the exclusive responsibility of the Guatemalan authorities.

The State also reiterated “that, in the instant case, excessive delay in the criminal proceeding seriously breaches reasonable term, especially taking into account, in addition to the specifics of the case, the juridical rights, obligations, and values at stake.”

96. Finally, the State pointed out that:

[t]he fundamental purpose of this presentation [...] has been to explain the mistake committed in the note address[ed] to you on February 14 and, specifically, in the presentation by the State of Guatemala before the […] Court at the public hearing held on February 18 of this year. In other words, the only purpose of this presentation is to clarify what was the true intention of the State of Guatemala when it acknowledged international responsibility before the […] Court in case 10,636.

Finally, the Minister of Foreign Affairs apologized for the problems caused by “the mistake regarding the acknowledgment of responsibility by the State of Guatemala.” The President of the Court, in turn, thanked the Minister of Foreign Affairs for his visit and informed him that the brief delivered would be immediately included in the case file. He also stated that the oral stage of the case had concluded, for which reason the case was in the judgment stage.

97. On March 14, 2003, the Commission filed its observations on the brief by the State mentioned in the previous paragraph, reiterating several of its previous arguments (supra para. 49). The Commission also expressed that:

it appreciates the acquiescence of the State but, due to the procedural stage of the case, it deems it insufficient. The Commission notes that the acquiescence of the State refers to the facts stated in the application, excluding those contained in the brief filed by the representatives of the victim, which complemented the application and reinforced the conclusions of the [Commission], as well as all those duly established at the public hearing before the [...] Court.

The Commission also reiterated its request for the Court to render judgment on the merits in the Myrna Mack Chang case, expressly ruling on the scope and juridical effects of the acquiescence by the State, applying the authority given to it by Article 52(2) of the Rules of Procedure, to ensure legal certainty.

98. On March 14, 2003, the representatives of the next of kin of the victim, in turn, also submitted their observations on the March 3, 2003 brief by the State, in which they reiterated their previous arguments (supra para. 49). They also deemed that this brief by the State is a “new attempt to avoid a ruling by this [...] Court on the merits of the case” and that the State seeks to accept only the juridical consequences derived from the facts, and not the facts established in the application filed by the Commission, in the brief filed by the representatives of the next of kin of the victim and at the public hearing, which contradicts the case law of the Court regarding Article 52 of its Rules of Procedure. Therefore, they asked the Court to reject the acquiescence of the State and to issue a judgment on the merits and reparations to ensure the principle of legal certainty. Finally, they pointed out that in case “the expressions of the State [...] are deemed a satisfactory acquiescence under the terms of Article 52, […] in accordance with the case law of the Court, [this] does not impede the Court ruling on the merits of the case.”

99. In the brief with its final pleadings, the Commission reiterated its request to the Court regarding the need for it to rule on the scope and the effects of the acquiescence of the State (supra para. 52) and pointed out that:

[...] given the various positions adopted by the State during the processing of the case before the Inter-American System for Protection of human rights, as regards the scope of its acceptance of responsibility, the Commission deems that a clear and express ruling by the [...] is necessary to ensure the principle of legal certainty [...]

100. In the brief with the final pleadings (supra para. 51), the representatives of the next of kin of the victim argued that:

[t]he State presented [...] various positions with respect to its “acknowledgment of institutional responsibility” or “acquiescence”. Despite [that], the State has never accepted the central facts set forth in our application and in the application by the [...] Commission, or the facts proven at the public hearing, such as the responsibility of the Presidential Security Department of the Presidential General Staff in the murder of Myrna Mack and the denial of justice. Given the procedural stage of the case and the State’s pattern of behavior of withdrawing or “reinterpreting” its statements of responsibility, the representatives of the next of kin of the victim, based on the case law of this [...] Court, deem that a general acquiescence is insufficient [...].

Therefore, they asked the Court to issue a judgment on the merits in which it rules on the scope of the acknowledgment of responsibility by the State.

3) Considerations of the Court

101. Article 52(2) of the Rules of Procedure provides that:

[i]f the respondent informs the Court of its acquiescence to the claims of the party that has brought the case, the Court, after hearing the opinions of the other parties to the case will decide whether such acquiescence and its juridical effects are acceptable. In that event, the Court shall determine the appropriate reparations and indemnities.

102. Article 54 of the Rules of Procedure of the Court provides that:

[t]he Court, may notwithstanding the existence of the conditions indicated in the preceding paragraphs, and bearing in mind its responsibility to protect human rights, decide to continue the consideration of a case.

103. The Court will now state certain considerations pertaining to the scope of the acquiescence by the State and, therefore, its acknowledgment of international responsibility in the instant case. These considerations will be made in view of the fact that throughout the proceedings before the bodies of the inter-American system for protection of human rights, the State has several times given different extent to its acknowledgment of international responsibility.

104. First of all, the Court, exercising its adjudicatory function, applies and interprets the American Convention and, when a case has been brought before its jurisdiction, it has the authority to find that a State Party to the Convention has incurred international responsibility by violating its provisions. On the other hand, as it has reiterated before, this Court does not investigate or punish the individual behavior of the Agents of the State who may have participated in said violations.

105. Second, the Court, exercising its inherent authority of international protection of human rights, can establish whether an acknowledgment of international responsibility by a respondent State offers sufficient basis, in terms of the American Convention, to proceed or not with its hearing on the merits and establishment of possible reparations. To this end, the Court will analyze what has been stated in the specific case.

106. Article 52 of the Rules of Procedure refers to a situation in which a respondent State informs the Court of its acquiescence regarding the facts and the claims of the applicant party and, therefore, accepts its international responsibility for breaching the convention, in the terms set forth in the application, a situation that would give rise to early termination of the proceeding regarding the merits of the matter, as set forth in chapter V of the Rules of Procedure. The Court notes that with the provisions of the Rules of Procedure that entered into force on June 1, 2001, the application brief includes the considerations regarding the facts and the points of law as well as the claims regarding the merits of the matter and the requests for the respective reparations and legal costs. In this regard, when a State acquiesces to the application, it must clearly state whether it does so only regarding the merits of the matter, or whether it also includes reparations and legal costs. If the acquiescence refers only to the merits of the matter, the Court will consider whether it will continue with the procedural stage of determining reparations and legal costs.

107. In light of the evolution of the system for the protection of human rights, where the alleged victims or their next of kin can today autonomously submit their brief with requests, pleadings, and evidence, and wield claims that may or may not coincide with those of the Commission, when there is an acquiescence it must clearly state whether the claims made by the alleged victims or their next of kin are also accepted.

108. On the other hand, the Rules of Procedure of the Court do not establish any specific moment for the respondent party to state its acquiescence. Therefore, if a State resorts to this procedural act at any stage of the proceeding, this Court, after hearing all the parties, must evaluate and decide its scope in each specific case.

109. The State has submitted several briefs with the intention of defining the scope of its recognition of international responsibility. This Court specifically notes that on March 3, 2003, at the seat of the Court, the Minister of Foreign Affairs of Guatemala gave to the President of the Court a brief in which he clarified the terms of the acquiescence of the Guatemalan State in terms of “unconditionally accepting international responsibility in the Myrna Mack Chang case” and he apologized for the problem caused by “the mistake regarding the acknowledgment of responsibility of the State” (supra paras. 48 and 94).

110. The Commission and the representatives of the next of kin of the victim, in turn, have at all times objected to acceptance of the acquiescence by the State and have asked this Court to establish the facts and the violations to the American Convention. Among other expressions, they have asked the Court to rule on the scope and the effects of the acquiescence (supra paras. 76, 77, 83, 84, 92, 93 and 97 to 100).

111. The Court, taking into account the authority granted to it by Article 52(2) of its Rules of Procedure, takes note of the total and unconditional acquiescence of the respondent State (supra para. 94), which encompasses all the facts stated in the application; exercising that same authority under its Rules of Procedure, the Court also takes into account the requests both of the Inter-American Commission and of the representatives of the next of kin of the victim, in terms of specifying the scope and the juridical effects of said acquiescence (supra para. 110).

112. The Court deems it appropriate to take into account, based on the authority granted to it by Article 54 of its Rules of Procedure, other elements that allow it to establish the truth of the facts and, therefore, their juridical assessment, exercising its responsibility to protect human rights and applying, to this end, the pertinent provisions of conventional and general international law.

113. In light of the above, the Court takes into account, in addition to and alongside the acquiescence of the State, the testimony and expert opinions rendered at the public hearing before this Court, the body of evidence supplied by the Commission, by the representatives of the victim and by the State, the evidence included by the Court to facilitate adjudication, among others, the Report of the Historical Truth-Finding Committee entitled “Guatemala, memoria del silencio” (CEH), the report of the Archbishop’s Human Rights Office for the recovery of historical memory, entitled “Guatemala: Nunca más: los mecanismos del horror” (REMHI).

114. After examining all these elements, the Court deems that the international responsibility of the State has been established for violations of the American Convention in the instant case, a responsibility that is worsened by the circumstances under which the facts of the cas d’espèce took place.

115. Since the Court deems that said acquiescence does not encompass reparation of the consequences derived from the violations to the rights protected by the Convention that were established in the instant case, the Court –applying Article 63(1) of the American Convention- will establish the pertinent reparations and legal costs.

116. The Court also deems that given the nature of the instant case, issuing a judgment that addresses the merits of the matter constitutes a form of reparation for the victim and her next of kin and, in turn, is a way to avoid recidivism of facts such as those suffered by Myrna Mack Chang and her next of kin.

VII
THE EVIDENCE

117. Before beginning its examination of the evidence received, the Court will analyze, in light of the provisions of Articles 43 and 44 of the Rules of Procedure, certain considerations that are applicable to the specific case, most of which have been developed in the case law of the Court.

118. The principle of the presence of parties to a dispute applies to evidentiary matters, and it involves respecting the parties’ right to defense. This principle is one of the foundations for Article 43 of the Rules of Procedure, regarding the time when evidence must be offered for there to be equality among the parties.

119. According to the usual practice of the Court, at the start of each procedural stage the parties must state, at the first opportunity granted them to go on record in writing, what evidence they will offer. In addition, exercising its discretionary authority set forth in Article 44 of its Rules of Procedure, the Court may ask the parties to submit additional evidence to facilitate adjudication of the case, without this possibility granting them a new opportunity to expand or complement their pleadings or to offer new evidence, unless the Court were to allow this.

120. The Court has also stated before, regarding receipt and assessment of the evidence, that procedures before the Court are not subject to the same formalities as in domestic judicial proceedings, and that inclusion of certain items in the body of evidence must be done paying special attention to the circumstances of the concrete case, and bearing in mind the limits defined regarding respect for legal certainty and procedural balance among the parties. In addition, the Court has taken into account that international case law, deeming that international courts have the authority to appraise and assess evidence based on the rules of competent analysis, has always avoided rigidly determining the quantum of evidence necessary as the basis for a ruling. This criterion is especially valid with respect to international human rights courts, which –to establish the international responsibility of a State for violation of the rights of a person- have ample flexibility in assessment of the evidence submitted to them regarding the pertinent facts, in accordance with the rules of logic and based on experience.

121. Based on the above, the Court will now examine and assess the set of items that constitute the body of evidence in the case, following the rules of competent analysis, within the relevant legal framework.

A) DOCUMENTARY EVIDENCE

122. When it submitted its application, the Commission attached as evidence 52 annexes (supra para. 18). Subsequently, the Commission submitted copies of other documents, such as press release No. 032-2003 2003 of the Ministry of Foreign Affairs of Guatemala, of February 19, a copy of the October 3, 2002 judgment issued by the Third Criminal Court of Guatemala, a copy of the May 7, 2003 ruling of the Fourth Chamber of the Court of Appeals of Guatemala and a copy of several press releases and other newspaper reports in connection with the Mack Chang case (supra para. 18).

123. In its brief with requests, pleadings, and evidence, the representatives of the next of kin of the victim offered as evidence numerous documents included in 162 annexes (supra para. 24). In the brief with observations on the preliminary objections, said representatives also included copies of various court orders and actions and in the brief with the final pleadings they attached several annexes pertaining to vouchers for expenses (supra paras. 27 and 51).

124. The State, in turn, attached several annexes to its brief answering the application and filing preliminary objections (supra para. 25). Subsequently, it submitted copies of the writ of indictment and of the order for the trial to commence against the alleged accessories in said criminal proceeding.

125. As evidence to facilitate adjudication of the case, the Court received the rate of variation of the consumer price index in Guatemala from 1998 to the present and the life expectancy indexes in said country from 1990 to the present, submitted by the Commission, the representatives of the next of kin of the victim and the State (supra para. 55). It also received copies of several procedural actions from the file of the ongoing criminal proceeding under domestic jurisdiction, filed by the representatives of the next of kin of the victim and by the State; and the birth certificate of Vivian Mack Chang submitted by the Commission and by said representatives. The representatives of the next of kin of the victim also forwarded a certificate of the marriage of Myrna Mack Chang and Víctor Hugo Hernández Anzueto and the marital status certificate of Myrna Mack Chang at the time of her death (supra paras. 55 and 57).

126. Pursuant to the Order of the President (supra para. 35), Carmen de León-Escribano Schlotter and Clara Arenas Bianchi submitted their statements in writing and Bernardo Morales Figueroa submitted his expert opinion in writing, all of them made before a notary public (supra para. 37). The Court will now summarize the significant parts of said statements:

a. Sworn statement by Carmen de León-Escribano Schlotter, a sociologist

The displaced population in Guatemala was a consequence of the armed domestic conflict. The displaced and refugee population fled their place of origin out of fear of losing their lives, due to ideological, political, religious or ethnic persecution. During the 1980s, the first civilian government established a special committee for refugees, the Comisión Especial de Atención a Refugiados (CEAR) and in 1987 a decision was reached for CEAR to also address the needs of returning citizens and displaced persons.

CEAR’s relationship with Myrna Mack Chang was in connection with her research on internally displaced persons. Staff members of the Committee accompanied her on her visits to the area known as the Ixil Triangle. The Army controlled those visits. CEAR proposed to AVANCSO that they conduct a study to define the profile of the displaced population. Myrna Mack Chang’s work made evident the presence of the military and the role played by the army with respect to the issue of displaced persons.

b. Sworn statement by Clara Arenas Bianchi, founder of AVANCSO

Myrna Mack Chang was a member of the board of directors of the Asociación para el Avance de las Ciencias Sociales (AVANCSO), through which she carried out a study on internally displaced persons and coordinated it when she obtained funding from Georgetown University. Myrna Mack Chang focused her work specifically on institutional policies regarding internally displaced persons.

In addressing the issue of internally displaced persons, Myrna and her team entered into a reality unknown to Guatemalans who were unaware that almost a million persons had been displaced as a consequence of the domestic strife. She worked intensely in the area of Alta Verapaz, especially in the municipalities of Cobán and Quiché, in a highly militarized context, as the Army received them in the communities, which were subject to a strict control of their population, deeming them to be insurgents. At that time, the Army had launched scorched earth policies. Myrna and her team always went before the civil and military authorities to explain their presence in the towns and to request information.

At the United Nations International Conference on Central American Refugees, the draft of the report on the research carried out by Myrna was widely distributed, and it was then that the existence of a segment of displaced population was formally recognized.

Her work offered a typology of displaced persons taking into account the forms and destination of their displacement, an assessment of the material and psychological conditions of the persons who returned to the militarized zones, and a proposal on minimum conditions required for a viable process of return and integration, and she even proposed demilitarization of the area. Thus, she made information on an unknown segment of the population available to the public, raising questions on the presence of the Army in areas where there was a confrontation with the guerrilla forces to control the territory.

While preparations were underway to publish this study, Myrna began another one on the problems of returning citizens and their integration and viability, regarding both displaced persons and refugees, funded by the Ford Foundation. She worked in Cobán, in the municipalities Ixiles, Ixcán, Quiché and Nenton and Huehuetenango.

In time it became evident that among the returning citizens there were next of kin of the Comunidades de Población en Resistencia (CPR), groups of non-combatant civilians who sought to survive physically and socially in the mountains outside military control. In 1990 they were seeking to make themselves publicly known.

Myrna was consulted in her work by national and international organizations, and even by the Bishop of Quiché, Monsignor Julio Cabrera, to advise them regarding displacement and return from abroad.

Before she was killed, Myrna had commented to her that when she returned to the Ixil municipalities, someone from the military base went to inquire who that “Chinese woman” was. After the murder, the neighbors reported that AVANCSO had been under surveillance by persons in cars and motorcycles during the 15 days prior to the murder. Deeming it a political assassination, the board of directors of AVANCSO requested meetings with high military commanders and with the President of the Republic. They held a meeting that was attended by colonel Luis Enrique Mendoza, deputy director of the General Defense Staff, general Edgar Augusto Godoy Gaitán, head of the Presidential General Staff, and colonel Cabrera, head of the “G-2.” Colonel Mendoza said that they knew neither AVANCSO nor Myrna Mack Chang and that the murder might have come from “the left,” which liked to have “martyrs” among its own supporters. That same day, a man in civilian dress came to their offices, identifying himself as “captain Estrada,” and said that he had been sent by the Presidential General Staff, in charge of the investigation of the murder. He requested a photograph of Myrna and inquired about her personal life and personality traits. He reached the conclusion that Myrna was murdered for resisting a robbery.

In late September, the board of directors of AVANCSO met with President Marco Vinicio Cerezo Arévalo, who expressed that the murder might have been committed by “obscurantist sectors that [...] still exist[ed] within the security forces.”

Between 1992 and 1994, during the trial against Beteta Álvarez, there were several acts of intimidation against AVANCSO employees, including aggression and threats, as well as entries into their offices, demanding that they not cooperate with Helen Mack Chang. The pertinent complaints were filed at the courts and at the Office of the Human Rights Ombudsman. Surveillance of AVANCSO’s seat became more obvious when Christian Tomuschat, the UN Human Rights Rapporteur, visited Guatemala and their offices. Despite complaints filed regarding the facts, those responsible for them were never identified or accused.

When Myrna was murdered, AVANCSO lost the most important member of its Board of Directors, who would now be acting as the coordinator of one of the Study Areas at their research center. If that were the case, her monthly income would be Q 12,000.

c. Written expert opinion of Bernardo Morales Figueroa, a mathematician

The lost earnings of Myrna Mack Chang add up to US$949,934.78. This result was obtained applying the customary method of establishing the present value of an accrued amount of capital, adding the factor of professional experience.

If one applies the method used by the Inter-American Court to determine lost earnings, the result would be US$561,384.64, so there is a difference of US$388,050.14 with respect to the calculation in his expert opinion. This arises from the differences in the terminal year of life expectancy, from not using average values but rather present values, operating in constant terms and carrying forward the information with the consumer price indexes, adding the use of the factor of professional maturity.

B) TESTIMONIAL AND EXPERT EVIDENCE

127. The Court heard the testimony of the witnesses and the expert opinions of the expert witnesses proposed by the Commission and by the representatives of the next of kin of the victim (supra para. 43). The Court will now summarize the significant parts of said statements.

a. Testimony of Monsignor Julio Cabrera Ovalle, Guatemalan bishop

He is the Bishop of the Diocese of Jalapa, in Guatemala, and during the time of the facts he was the Bishop of Quiché, a position he held fro 15 years, starting in 1987. During the domestic armed conflict in Guatemala, the Diocese of Quiché had the largest population of internally displaced persons and of refugees in Mexico of all the country, and for this reason he decided to seek more information on this phenomenon.

He met with Myrna Mack Chang for the first time on August 21, 1989. At that time, she was conducting a research study on the situation of internally displaced persons in the country, as part of her work as a social investigator for AVANCSO.

At the time of the facts, Myrna Mack Chang was the only person investigating that specific topic, which had serious political implications, because while the armed conflict was a public matter, the Army sought to maintain secrecy regarding the way it treated the civilian population, especially the population of Quiché. He began to have problems with the Army when he interacted with said population.

At first, Myrna Mack Chang was surprised that she was not threatened due to the investigation she was conducting on the situation of the refugees and the internally displaced population and the massacres that gave rise to this phenomenon. However, the threats against Myrna Mack Chang came later.

During the armed conflict, the Army carried out a task of recovery of the populations known as “Comunidades de Población en Resistencia” (CPR), starting with the population of the Sierra, in the area of Nebaj, and then encompassing the population of various areas in northern Chajul. The latter population groups deemed that the only way to save themselves was to make themselves known publicly, and for this they were able to meet in an assembly and draft a document that they wanted to publish and send to various eminent persons in Guatemala, such as the President of the Republic and the President of Congress. Said document was supposed to arrive in Guatemala on June 14, 1990. However, it never arrived. In July, Myrna Mack Chang attended a meeting on refugees and internally displaced persons held in San José, Costa Rica. At that meeting, it was said that a very important document was going to be published in Guatemala and they asked Myrna to send it to them as soon as she had a copy of the document. However, in August of that year Myrna Mack Chang began to receive phone calls from persons who wanted to know about the document, which made her very fearful, because if her phone was tapped, the Army would link her to said document. In point of fact, on August 18, 1990 and on September 9, 1990, the anthropologist visited his home and told him that she was being followed. On September 7, 1990, said document of the communities of resisting population was published and several days later, on September 11, Myrna was murdered.

After hearing of the murder of the anthropologist, he linked what had happened to publication of the communiqué of the “CPR”, and he stated that the Army had killed Myrna Mack Chang, an innocent person.

b. Testimony of Virgilio Rodríguez Santana, a former newspaper salesman

At the time of the facts, he sold newspapers in Guatemala City near the Mack Chang family’s house, and he knew the family because he sold them newspapers for almost 15 years. He noted how in August, 1990, three individuals kept watch on the Mack Chang family’s house for two weeks, for which reason he decided to warn the “maid” at said house about the surveillance on the family. He heard of Myrna Mack Chang’s death on September 12, 1990.

Certain police agents, among them agent Mérida Escobar, asked him to narrate what had happened and to help make “spoken pictures” of the persons who conducted the surveillance. They also asked him, twice, to identify some motorcycles possibly linked to the facts, and to identify the person whose picture they showed him as one of the men who had been watching the Mack Chang’s family house, which he refused to do, because he did not want any trouble. The photograph was of Noel de Jesús Beteta Álvarez.

He left Guatemala because he was afraid that the same thing would happen to him that happened to Mérida Escobar. He currently lives in Canada and has only returned once to Guatemala, in response to a request by Helen Mack Chang, to render testimony before the domestic criminal courts in September, 2002, for which he requested protection.

c. Testimony of Lucrecia Hernández Mack, daughter of Myrna Mack Chang

She lives in Guatemala with her common-law spouse, with whom she has been living for six years. She has two children, one who is 2 years old and the other 4 years old. She studied medicine and is currently in a graduate program in Public Health.

Her mother studied social work in Guatemala and then obtained two graduate degrees in Social Anthropology in England. She worked for the Asociación para el Avance de la Ciencias Sociales (AVANCSO), an organization that she herself founded together with other colleagues in 1986 in Guatemala. Her mother was a very hardworking woman who showed great solidarity and was passionate about her work. All her activities were geared toward promoting or supporting some social transformation in her country. Her mother always urged her to also be socially aware.

At the time of the facts she was 16 years old and she lived with Myrna Mack Chang, her mother, in an apartment within her grandparents’ home. The last time she saw her was on the morning of the day she died, when she was going to school. That day she was at home and about six p.m. she received a phone call from her mother, letting her know that she would leave the office soon. Afterwards, her aunt Helen received a phone call from the police informing her that apparently something had happened to her mother, and she imagined that it was an accident. She learned what had happened when her grandparents came to their house with a funerary hearse, and an uncle with “mental problems” told her that her mother had been knifed to death. When her mother’s body arrived at the funeral parlor, she helped clean it and tried to put on her favorite dress but was unable to, because an autopsy had been performed on her, the body had been sutured from the thorax to the neck, and it had several wounds on the arms, the abdomen, the neck, and the legs.

The family suffered a very heavy blow with the death of her mother, because it was such an abrupt and violent loss. She could not understand that her mother was dead because she did not comprehend what had happened. Due to her mother’s death, she felt that she had no one to support her in difficult or happy times.

She graduated from high school one month after her mother’s death and entered the university four months later, for which reason she believes that the fact that her mother was not there at a time “when one begins to make important decisions for life” has affected her. Her mother has not been with her when she graduated, nor during all these years while she was at the university, nor when she has had new friends, nor when she had her first boyfriend, nor when she decided to live together with someone, nor when she had her two children; in other words, in all her adult life, while she was establishing her identity and her personality, which takes shape between adolescence and adulthood. Her aunt Helen became her second mother.

She is emotionally affected by seeing the grief and physical deterioration of her grandparents, especially her grandmother who still cries for a daughter who should not have died before her. She is also affected by seeing the way her aunt Helen has suffered, as she not only had to identify her mother’s body and suffer much physical and psychological stress, but also the difficulties placed by the judiciary in the search for justice.

After her mother’s death, justice is an inherent search in her family. She feels indignant that the State, which should protect them, killed her mother, as it was not merely a member of the State who just decided to kill her, but rather that the murder came from the Presidential Security Department of the Presidential General Staff of the State of Guatemala, and her country, especially the courts, have done absolutely nothing for due and prompt justice.

She thinks of her mother every day, especially of the way she was murdered, of the pain of the 27 knife wounds she suffered, and of how she must have felt lying alone on the street. This makes her feel very indignant and angry.

Her mother was murdered for political reasons, specifically because she was investigating the institutional policies of the State with respect to the internally displaced population groups. In a book that she published, she clearly stated how the army massacred those populations within the country. This was inconvenient for the Army and they saw her mother as a threat.

What little progress there has been in her mother’s case has not been out of true goodwill of the State, but rather through the efforts of her aunt, Helen Mack Chang, who was first the private prosecutor under the former Criminal Court and afterwards took on the role of “querellante adhesiva” or private accuser in the trial against the accessories. On the contrary, the State has done everything possible to obstruct the case; they murdered the policeman who was carrying out the investigation and who identified Noel de Jesús Beteta as the direct perpetrator; they have filed numerous amparo remedies and other remedies, exceeding the terms to decide on them; and her family, the case attorneys, the AVANCSO staff and that of the Myrna Mack Foundation have suffered threats and acts of intimidation.

The fact that they are constantly threatened and living in a state of insecurity affects both her and the rest of her family emotionally. The family has all the time been trying to take security measures, to be careful whom they talk to on the phone and who approaches them, among other measures, to avoid another fact like what happened to her mother, and this is an overly heavy emotional burden.

The search for justice has also affected her family financially. In her case, due to the need to spend time on the trials, she turned down job offers because she could not commit to complete presence or stability. In August, for example, she turned down two offers because of the oral trial in September. Over the last five years she has spent roughly four hours a week on the case, depending on whether it was active or adjourned. During the oral trial she spent all her time on the case, starting at nine a.m. when the hearings began until they ended, then going to the office to prepare the case.

In 1999 she went to a psychologist who recommended two appointments per week and that she join a support group, but this was very difficult financially, as she became pregnant with her second child and she had to interrupt the therapy.

What is most important is for the State to acknowledge that her mother’s murder was a special intelligence operation coming from the Presidential Security Department of the Presidential General Staff, admitting that it was an institutional order that led to surveillance and following of her mother and then killing her. She also stated that Guatemala must publicly apologize to them through all the mass media. Her family wants the truth to be known and for no one to be able to deny, after the trial, what happened.

She came to render testimony before the Inter-American Court because in this way no one will be able to deny what happened to her mother, thus setting a precedent that will have a great social impact in Guatemala. She does not want them to be seen as victims but rather as actors.

d. Testimony of Helen Mack Chang, sister of Myrna Mack Chang

She always lived with her sister, Myrna Mack Chang, except when she was married. Her sister was an anthropologist and at the time of the facts she was conducting a study on refugees, sponsored by the Georgetown University. Her sister also advised Monsignor Julio Cabrera Ovalle, when he was in charge of the Diocese of Quiché, on the situation of the refugees and internally displaced population in Guatemala, as this was a topic unknown to many and handled almost exclusively by the military.

In one of her studies, her sister reached the conclusion that the return of the refugees should be attained through their integration into the country, discontinuing the war treatment they were receiving. She requested intervention of the Church, of non-governmental organizations and of the International Red Cross, all this to humanize the conflict. Her sister’s position was contrary to the counterinsurgency plans of the Army, and this turned her into a military objective.

On September 11, 1990, about a quarter to seven p.m., her sister was attacked by at least two men and received 27 knife wounds.

After the facts, the witness began to make inquiries among the neighbors and other possible witnesses, but they were all afraid to talk. Then, she began to receive the first threats and to be followed, all of which coincided with the visit of the United Nations Rapporteur for Guatemala, Christian Tomuschat, and the perpetrators of the crime sought to avoid a complaint regarding the facts. They also sought to dishonor her family by speculating that her sister’s murder was a crime of passion; that she was involved in the foreign currency “black market;” that she took drugs, or that she was a member of the guerrilla forces.
She became involved in the criminal proceedings a month after the facts, when she noted that the investigation did not move forward and that the Magistrates’ Court trial did not progress. She had to carry out the investigation nearly alone, as the Public Prosecutor’s Office only supported her with briefs when they deemed that it was not dangerous. Otherwise, she looked up some article of the law that would allow her to do it on her own, individually, or she would obtain an attorney’s signature, in the understanding that at that time she did not have any funds to pay the attorney, and no one would take the case due to the obvious risks involved and that taking a case for someone who had been murdered would somehow link them to subversion. For this reason, she had to study the law and begin various steps on her own.

At the start, the police investigation of her sister’s murder was entrusted to a first team constituted by policemen José Mérida Escobar and Julio Pérez Ixcajop, who prepared a police report dated September 29, 1990, in which they identified Noel de Jesús Beteta Álvarez, a former sergeant major who was a member of the so-called “Archivo” of the Presidential General Staff, as the main suspect of the murder. In said report, they reached the conclusion that the crime was politically motivated. However, this report was not submitted to the courts in Guatemala. Instead, a mutilated report dated November 4, 1990, was submitted to the courts, stating that the motivation of the crime was robbery and that at the time there were no suspects.

The “Archivo” was a military unit mostly composed of the well-known death squads. It originated in the international treaties signed by Guatemala with the United States to apply the national security doctrine, and initially it was known as the “Regional.” When the first civilian government was elected, they only changed its name to “Presidential Security Department,” part of the “Estado Mayor Presidencial” or Presidential General Staff, but its activities linked to grave human rights violations, disappearances, extra-legal executions and tortures continued.

Mérida Escobar rendered testimony before a court on all that he had investigated and on the conclusions of his September 29, 1990 report, and he recognized his signature on said report and on the daily reports he had prepared. When he completed his statement, the representative of the Public Prosecutor’s Office approached him and told him that he had just signed his death sentence. In point of fact, detective Mérida Escobar began his statement saying that he feared for his life. He was murdered on August 5, 1991, on his way to the Office of the Human Rights Ombudsman.

Both Rember Larios Tobar, the former supervisor of José Mérida Escobar, and his auxiliary colleague in the investigation, Julio Pérez Ixcajop, had to seek exile in Canada. All the witnesses, one journalist and one legal assistant also had to go into exile. In view of this situation, she requested rogatory letters, in the ongoing proceedings, for the witnesses who were in exile to render testimony before the respective national courts. Nevertheless, the authorities in charge took about a year to process the requests, and did so in such a poor manner and they were so defective that when they reached Canada they were rejected because they did not comply with all the requirements, for which reason they had to request them again. The procedural terms expired and it was not possible to execute these rogatory letters, which forced them to seek out the witnesses in Canada and try to obtain all the security measures required for them to render their testimony in Guatemala.

Beteta Alvarez was finally sentenced to 30 years in prison as the direct perpetrator of her sister’s murder. However, during the first and second instance judgments they were barred from accusing all those who were responsible, both direct perpetrators and accessories, for which reason they had to resort to an appeal to reverse those decisions and to be able to proceed with the efforts to prosecute the accessories.

In 1994, a second proceeding began against the accessories of Myrna Mack Chang’s murder: general Edgar Augusto Godoy Gaitán, head of the Presidential General Staff, Juan Valencia Osorio, director of the Presidential Security Department, Juan Guillermo Oliva Carrera, deputy head of the Presidential Security Department, Juan Daniel Del Cid Morales, Juan José Larios, and an individual whose surname is Charchal. Final judgment is still pending in this trial, and only colonel Juan Valencia Osorio has been convicted. The proceedings took place in six or seven controlling courts, and in twelve or thirteen other courts, including chambers. For this reason, she asked the Inter-American Court to order the appointment of an observer of the proceedings until the final judgment is issued, bearing in mind that in the case of Monsignor Gerardi the judgment that convicted those responsible for his death was overturned in that instance, that the proceeding in the “Masacre de las dos Erres” has been paralyzed for over two and a half years because 31 amparo remedies were filed, and that in the Colotenango case the civil self-defense patrol members are applying pressure to obtain their acquittal.

Fifteen days after the start of the September 3, 2002 trial, there were various threats against the attorney who was helping her. They left messages with death threats and fired against his house, for which reason he had to sent his daughters abroad.

The proceedings have been delayed, among other reasons, due to the use of a series of delay tactics, such as abusively filing multiple amparo remedies. For example, in 2002 the defense counsel for the accused interrupted the trial alleging that she had breached the rights of the daughter of her sister. The chamber accepted the amparo remedy and annulled the trial, despite the fact that they were not even rights of the accused. In another amparo remedy, on the issue of evidence, despite the fact that it was not under the competence of that chamber but rather of the court, they accepted it and even sought to eliminate all the documentary and testimonial evidence supplied by the private accuser. In another amparo, they alleged that the private accuser had not determined the points on which the expert witness would render testimony, and the trial was suspended. At another time in the proceedings, an order was issued for the case to remit from civil to military courts, which caused years of delays discussing competence. At the start, the case was heard by civil courts, but the defense counsel insisted that they be tried by a military court. The judiciary either would not hear judicial actions or would obstruct them, precisely out of fear. In 1996 they attempted to close the case, to backtrack it and to effect a joinder with the trial against Beteta Alvarez. This discussion lasted three years, and the judges who have attempted to do something have been threatened.

Seeking cover in official secret under Article 30 of the Political Constitution of the Republic, the Ministry of National Defense refused to turn over documents that would have helped prove the responsibility of the accused in this case. The requested information was on normal operating and administrative procedures of the Presidential Security Department, the record of vehicle authorizations of the Presidential Security Department at the time, and her sister’s file, which the Historical Truth-Finding Committee stated that they had seen at least in part, but all this was denied. They also requested information on persons holding key positions and especially whether they had been part of the intelligence system, and this was rejected due to security reasons. In this regard, Guatemalan law is quite clear, and it sets forth that the information must be provided when it is requested by a competent judge, and it is for the judge to determine whether it is secret or not. However, none of this information was supplied.

In the proceeding against the accessories, only one person was convicted, colonel Juan Valencia Osorio, and now the appeal process was carried out on February 26, 2003. It cannot be said that all the direct perpetrators and accessories of the murder have been convicted. There are other suspects of being accessories of her sister’s murder, but the authorities did not wish to undertake any investigation, mainly due to the risk involved. There is a proceeding opened against other direct perpetrators. It is an obligation of the State to continue the investigation and to try all those who are responsible, for justice to be served in the instant case.

In 1994, a set of cassettes recorded by Noel de Jesús Beteta Álvarez was handed over, in which he describes exactly how he murdered her sister, and he clearly defined how the illegal intelligence operation was carried out to kill those who were deemed enemies of the State. Through his statements, he sought redemption of the sentence. In any case, he expected an amnesty. He stated that the person who gave the order and who gave the “Roman” signal to kill her sister was colonel Juan Valencia Osorio, who had received instructions from general Edgar Augusto Godoy Gaitán.

At the trial that took place from September 3, 2002 to October 3, 2002 before a competent tribunal, Beteta Álvarez recognized that it was he who did the interviews, but that he did them under the influence of drugs, and he accused her of supplying him a daily ounce of cocaine to buy his testimony. Nevertheless, the statements are consistent in terms of space, time and place, so that if Beteta Alvarez were drugged due to consumption of a daily ounce of cocaine for six or four months duration of the interviews, he would not have been capable of making them.

Her family, her sister’s colleagues at AVANCSO and the staff of the Myrna Mack Foundation have been threatened. The pattern has always been to threaten after a judicial step has been taken. Recently, the security forces themselves have detected following by suspicious drivers in vehicles around the foundation and near her home. They have also tried to link her brother with drug trafficking activities, and they even began a trial. They also filed legal actions against him. They have also sought to dishonor the Mack Chang family by saying that they are linked to the “black market in foreign currency-“ Both her family and AVANCSO have filed complaints regarding these facts, and there are files at the Office of the Human Rights Ombudsman, but they have attained no results.

Once, they asked the Government of the Republic to appoint an investigative prosecutor´s office to look into threats against human rights advocates, and they submitted a project on how to investigate those who threaten, including the legal operators. However, there has been no response.

She had to move to a condominium with a guard service to ensure that entry of individuals to her residence is more adequate. There are security guards and high walls to avoid any control. No one likes to live with security because one never knows when one is betrayed by someone who passes on the information, especially due to their longstanding struggle in this case.

She has been emotionally affected by living with so much anguish and uncertainty. The State has resorted very much to psychological warfare. The attitude of the State of Guatemala at this Court was rather a tactic of psychological warfare. The Agent of the State was a witness in her case and now they want to turn him against her, resorting to the same delay tactics in the international proceeding that they used in the domestic one.

For her family to avoid falling apart and to remain steadfast in their struggle to obtain justice, each one had to go through an individual process. Her sister’s case is a paradigmatic one not only for her family but also for many Guatemalans who see themselves reflected in it. It is quite a heavy burden that forced her to give up her personal life and spend all her time representing, with dignity, the thousands of victims who had no chance. She is not an attorney, but rather a business administrator by profession, and previously she had no knowledge on human rights. Between 1990 and 1993 she had to concentrate on the case alone and also work two shifts to obtain money from the work she did for a living. In the last two years, she has spent 100 per cent of her time on the case, and to pay the costs she had to take out a loan.

The Myrna Mack Foundation, established in 1993, struggles to put an end to impunity in the case of Myrna and it also represents the case of many other Guatemalans. Starting from her sister’s case, they have seen the deficiencies that affect cases of human rights violations and that now apply to all crimes or offenses committed by organized crime. The abusive use of amparo remedies as well as other remedies, denial of information alleging official secret, and threats and acts of intimidation against witnesses and other involved in the cases are part of this pattern that protects impunity and impedes strengthening of the system of justice.

The main objective of the Myrna Mack Foundation is to strengthen the justice and security system, for which they have requested pertinent reforms in the intelligence system. They make proposals to encourage the judges and prosecutors to believe in their judicial independence and in the autonomy that they must have to be able to exercise criminal prosecution, and to rescue the dignity and self-esteem of the police. The Foundation has spent close to $100,000.00 a year on her sister’s case, without including legal costs.

She believes that the Presidential General Staff is responsible for the murder of her sister. Proof of this is the fact that, using as a pretext the riot that took place last week at the preventive detention center in zone 18, and in which they killed the witness in the Gerardi case, the military who have been accused in the Myrna Mack Chang case were transferred to the military headquarters without a court order. It is a notorious and publicly known fact that the Presidential General Staff was taking steps for them to be moved and they were present during the riot, to be able to take them out and to the military headquarters. Another conclusive proof is the conviction of Noel de Jesús Beteta Álvarez, who was a member of the Presidential General Staff.

Finally, they believe that the State wishes to link the outcome of the domestic trial to what is discussed at the Inter-American Court, despite the fact that they are two completely different jurisdictions.

e. Testimony of Rember Larios Tobar, former head of the department of criminological investigations

In 1978 he began his career in the National Police of Guatemala, where he served for 14 years. At the time of the facts he lived in Guatemala City and worked as the head of the department of criminological investigations. At that time, his supervisor was the Director General of the Police, colonel Julio Caballeros, who between September 14 and 15, 1990, ordered him to fully investigate the Myrna Mack Chang case, no matter who was responsible for it. Therefore, he coordinated and supervised his staff to conduct that investigation.

When he was assigned the case there was a report entitled “Preliminary Investigation, Myrna Mack,” with a single page, possible drafted on September 11, 1990. This document contained information gathered at the scene of the crime and it pointed to robbery as the motive of the crime. He did not go to the scene of the crime, but the investigators of the homicide division who went there to cover this case stated that, curiously enough, the Director of the Police, colonel Julio Caballeros, did show up there.

He assigned the case to homicide investigator José Mérida Escobar, who had the necessary knowledge, the training and the experience in homicide investigations, and whom he trusted. He had a strong character and he was tenacious and persistent in the investigations. He authorized José Mérida Escobar to choose who would work with him on the investigation, for which reason he designated Julio Pérez Ixcajop, who currently lives in Canada.

One of the most important witnesses in the investigation, a policeman whose surname is Masariegos, better known as “Troncoso,” recognized the direct perpetrator of the murder, and that he worked at the “Archivo” or “G2”, and he stated that the murderer had worked for the Investigations Department before. This witness warned both Mérida Escobar and Pérez Ixcajop to be careful regarding this case, as there were cases that should be investigated and others that should not. He told them that they were very young and that they should not investigate.

After the investigation, a report dated September 29, 1990 was prepared and immediately submitted to the Director of the Police, colonel Julio Caballeros, who ordered that it be kept secret and not sent to the court, as their lives were at risk. Said report, based on the interviews to the witnesses, identified Noel de Jesús Beteta Alvarez as the main suspect and stated that the motive of the murder could have been the fact that Myrna Mack Chang had written a book dealing with institutional policies toward the internally displaced population in Guatemala which, at the time, was considered a very sensitive topic in Guatemala. The report also stated that at least three persons had kept watch on Myrna Mack Chang’s house and that at least three individuals had murdered her.
Complying with the orders of the Director of the National Police, colonel Julio Caballeros, he kept that file secret. A second report, possible dated November 4, 1990 and prepared by orders of the Director, was submitted to the courts. The substantive difference between this report and the former one was that the stated motive of the crime was robbery. However, in late December, 1990, the Director of the Police was dismissed, for which reason the witness waited until the new director took office, and then he mentioned the existence of the September 29, 1990 report. The new director general decided to submit that file, and for this he contacted the Attorney General and head of the Public Prosecutor’s Office at the time.

Mérida Escobar mentioned several times that he was being watched and followed because of the Mack Chang case investigation, for which reason he asked Mérida Escobar to formally report said surveillance, and he did so. One of Mérida Escobar’s reports states that when he arrived to interview one of the witnesses at AVANCSO’s offices, the witness told him that a man who said he was an Army Captain, by surname Estrada, had come and told him that he was in charge of the investigation in the Myrna Mack Chang case, and he asked him for the name of the homicide investigator of the National Police who was in charge of the investigation.

Starting on September 29, 1990, Mérida Escobar’s life radically changed, as he began to suffer harassment, threats, surveillance, and various types of persecution. The life of the witness also changed. The first reprisal against him was removal from his position as head of criminological investigations and his subsequent appointment to a lesser position, where he was punished and arrested for alleged misdeeds in the performance of his duties, which he had not committed.

Before rendering testimony before the courts, Mérida Escobar stated to him that he feared a second reprisal because he continued to be under surveillance and to receive threats. Despite the fear that he felt, he went to the court and told the truth about what he knew of the Myrna Mack Chang case. Weeks after his testimony, he was killed by assassins, expert shooters, one hundred meters from the headquarters of the National Police, with four shots to the face. There was a complete squad of armed policemen who merely watched how the crime was committed, in full daylight in a park. They left him there on the ground like a wounded animal. His killers left so much evidence at the scene of the crime and so many witnesses that it was possible to know where they came from. José Mérida Escobar was killed by the same persons who killed Myrna Mack Chang, for having rendered testimony in the case. Mérida Escobar’s academic qualities and professional performance were excellent.

Before September 29, 1990, the witness only had recognitions and congratulations on his police record for his struggle against crime. After his colleague was murdered, he could not continue to live in his house, which was constantly being watched and was attacked with gunfire. Finally, he decided to go into exile in Canada in 1992.

He asked the Inter-American Court, in its ruling, to vindicate the National Police as an institution and the memory of José Mérida Escobar, who was a symbol of sacrifice and example to others; an example that can be reflected on all the new generations of policemen, and perhaps with this example some day, relatively soon, that mentality of indifference will be changed into a true service vocation with a mentality of respect, adherence to the law, and social justice.

f. Testimony of Henry Monroy Andrino, former Judge

In 1990, he lived with his family in Guatemala and he was the regular judge at the Second Criminal Court of First Instance in Guatemala City.

In January, 1999, after an objection and self-disqualification of the previous Judge, he was assigned the Myrna Mack Chang case. He was in charge of the hearing on whether or not to issue an order for trial to commence against the persons identified as those responsible for this crime. Based on that hearing and studying the file, his conclusion as a judge at the time was that there was sufficient evidence to presume the responsibility of the persons who were being accused by the Public Prosecutor’s Office for being the instigators or accessories before the fact in connection with the murder of anthropologist Myrna Mack Chang.

Those individuals were three members of the Guatemalan Army: general Godoy Gaitán and two Army colonels, Juan Valencia Osorio and Juan Guillermo Oliva Carrera. The items of evidence for this decision were details regarding the chain of command, as this crime could not have been committed by Noel de Jesús Beteta upon his own initiative.

On January 29, 1999, he issued the order for the trial to commence, and in that trial there was an abusive use of a series of legal remedies recognized by Guatemalan legislation, by means of which the elucidation of the merit of commencement of the trial or the lack thereof was delayed. Several judges heard the cause before, and the judge who heard it previously would not decide the date of the hearing due to the responsibility involved in trying three high military authorities. The file passed on from one court to another without anyone assuming the responsibility of the trial until the Supreme Court of Justice, in a special ruling, decided which court should hear this proceeding.

From the moment the order was issued for the trial to commence, he began to suffer threats and acts of intimidation of various types. He was summoned by the Secretary General of the judicial body that served as a direct link between the decisions of the Guatemalan Supreme Court of Justice and the corps of judges functioning in the country, who told him to be careful because the judges who issued decisions against members of the Army suffered accidents. They also sent packages simulating bombs to his office.

These threats made him fearful, for which reason he sought protection through the presence of the United Nations Mission in Guatemala, as he did not trust the Guatemalan system or the security forces. He felt fear about rendering testimony before the Inter-American Court but he knew that he was doing his duty.

Due to all the events that took place, he had to resign the judgeship and he decided to go into exile in Canada since April, 1999, and to date he has not returned to Guatemala, as there are no guarantees for his personal safety.

g. Testimony of Gabriela Vásquez Smerilli, attorney

She was appointed as verifier together with attorney Alfredo Balsells Tojo in the Mack Chang case, as an outcome of the agreement between the State and Helen Mack Chang before the Inter-American Commission on March 3, 2003. She was in charge of verifying compliance with commitments two to seven and ten of that agreement. Two reports were submitted as a result of her work. The first report was on August 23, 2000, and the second report was issued on October 4 of that same year.

They asked the Minister of Defense -pursuant to commitment number two regarding exhibition of documents by that Ministry- for eight documents that had been requested several times by the Public Prosecutor’s Office and with respect to which they had not obtained a satisfactory reply. On September 7, the Minister answered the request, addressing his reply directly to the special prosecutor in the Mack Chang case. The first document was the “Parte de Novedades” or report on new developments by the Security Department of the Presidential General Staff during 1990. In his reply, the Minister of Defense stated that those documents did not exist because government resolution 228 of 1995 by the President of the Republic of Guatemala ordered the elimination of the Security Department of the Presidential General Staff and that, therefore, the documents were incinerated.

The second document requested was the entry and exit record for motor vehicles, whatever notices or new developments records existed, specifically regarding vehicles used by Noel de Jesús Beteta Álvarez, and who had authorized the use of those vehicles. This time the Minister replied that said information had been provided to the Public Prosecutor’s Office in 1996. However, they verified that the information received that year referred to the vehicle record of the Presidential General Staff, but not of the Security Department as requested.

The third document requested was the file on Myrna Elizabeth Mack Chang at the Security Department of the Presidential General Staff. This time the Minister replied that there was no such file at the Security Department or “Archivo” and that the only existing report on this person was one prepared by Juan Eduardo Contreras, which had already been forwarded. However, on May 8, 2000, the Strategic Analysis Secretariat of the Presidency of the Republic published a list of persons that came from the “Archivo,” and one of those names was that of Myrna Mack Chang.

They also requested the names, functions and responsibilities of the specialists of the Security Department, of the persons in charge, a description of the functions and responsibilities of the head and deputy head of the Department who were being accused as accessories, and the list of persons who worked for the service, which they did not receive. They also requested an organization chart of the Presidential General Staff and a copy of the book of normal administrative procedures and of the normal operating procedures of the Security Department, but they only received a copy of the manual of the Presidential General Staff.

With respect to the third commitment, pertaining to reduction of the negative effects of inappropriate use of remedies, they met with the President of the Constitutional Court, with the Magistrate of the Supreme Court and with the President of the Third Court. Said authorities recognized the excessive use of remedies that obstructed adequate administration of justice, but they deemed that legislative reforms were required to restrict said abusive use of remedies.

With respect to commitment four, on compliance with the legal terms granted by the judiciary authorities, specifically the eight days granted to submit evidence, this term was not complied with because there was an amparo remedy still pending resolution. The amparo was decided on August 1, 2000, and the notices were only served on August 29 and 30, despite the fact that the murder of Myrna Mack Chang had been classified as very urgent. Therefore, the verifies reached the conclusion that the first legal term had expired and it was impossible to comply with the second legal term, which would expire in October, because the first one had not occurred within the legal term.

As regards commitment five, on the testimony of persons living abroad, no actions at all were taken to obtain said testimony. With respect to commitment six, to promote actions regarding the issue of security of witnesses for the private accuser in case of threats, during the verification period there were no acts of intimidation.

Regarding commitment seven, for the Government to investigate and, if there were grounds, to punish those responsible for not supplying the documentation requested of the Ministry of National Defense, at a meeting with the commissioner on August 8, 2002, COPREDEH undertook to conduct an investigation within 30 days on the persons who had not complied with the delivery of documents. However, the commitment was not fulfilled, because COPREDEH did not submit the investigation within the term established, nor did it do so afterwards. Finally, as regards commitment ten, pertaining to relations between the parties, she deemed that there has been constant communication.

During the verification period guarantees of due process were not fulfilled, because there were obstructions of justice by the Ministry of National Defense, which limited access to evidence that was important both for the Public Prosecutor’s Office and for the private accuser. Furthermore, legislation was inadequate and there was unjustifiable non-compliance with procedural terms.

At the time of verification, there being a resolution in this regard, an amparo remedy was filed for the second time on the objection with respect to lack of competence of civilian jurisdiction and military jurisdiction, for which reason she does not think that there was a political will of the State to fulfill the commitments. Her verification concluded due to a decision of the parties before the Commission.

h. Testimony of Nadezhda Vásquez Cucho, attorney for the Myrna Mack Foundation

She has worked at the Myrna Mack Foundation since 1999 as a legal adviser regarding the Myrna Mack Chang murder case and in the investigation on administration of justice in Guatemala.
With respect to the Myrna Mack Chang case, her work consisted of advising, first of all on procedural matters, analyzing and preparing various replies to the remedies filed by the defense counsel and debating with the attorneys for the defense. Secondly, it involved the design of the probatory strategy in the trial against the accessories.

Once the Supreme Court of Justice left the criminal proceeding in this case open in 1995, the investigation against the accessories began but the trial took place on October 3, 2002, that is, eight years later. This delay was due to the fact that all the regular remedies filed in the proceeding were decided with procedural delays. Furthermore, the courts constantly discussed competence to hear the case, as there were several debates regarding whether it should be heard under military or civil jurisdiction. Some decisions of the judges were contradictory and mistaken. Finally, the delay was also due to the abusive and indiscriminate use of the amparo remedy as a delay tactic, processed with the respective procedural delays.

Fourteen amparo remedies were filed in the proceeding against the accessories. The defense counsel filed “eleven,” all of which were found to be inadmissible and nine of them were notoriously irrelevant, for which reason the defense counsel was penalized for lack of good faith. The issues discussed in these amparo remedies were, among others, the cassation ruling that left the proceeding against the accessories open; denial of the benefit of extinguishment of criminal responsibility set forth in the 1996 “National Reconciliation Law in Guatemala;” and admission of evidence of the Public Prosecutor’s Office and of the private accuser. There was even an amparo remedy regarding a ruling to deny transfer of the case to military courts, and finally there was an amparo remedy to defend “the interests of the civil actor,” who in this case was Lucrecia Hernández Mack, daughter of the victim.

In 1996, when the amnesty law was enacted, the defense counsel for the accused simultaneously filed two requests of extinguishment of responsibility before two different instances. The first request led to processing of two amparo remedies in face of denial of said benefit, and the second one led to processing of another amparo remedy. These amparos were found to be without merit, and two of them reached the Constitutional Court. Each of the amparo remedies was filed by the three accused. Processing of these amparo remedies lasted approximately 15 months. All the amparos filed exceeded the legal term set forth in the “Ley de Amparo y Exhibición Personal” or Amparo and Habeas Corpus Remedy Law, due to excess in processing.

The “Amparo, Habeas Corpus and Constitutionality Law” foresees the possibility of in limine rejection of an amparo remedy. A simple amparo remedy would last approximately 12 days, and an amparo remedy that involves, for example, submitting evidence, would last approximately 25 days. None of the amparo remedies filed was decided within the legal term. On average, each amparo remedy lasted approximately 170 days.

The courts fostered disputes over competence to avoid hearing the case regarding the accessories. The issue of whether a civil or military court should be competent was discussed four times, for which reason it went through six examining judges, two trial courts, and five different appellate courts. In Guatemala, judges are afraid to hear a case such as this one, in which high military officers are involved.

One of the first doubts regarding competence was filed by Helen Mack Chang herself because the case was under military jurisdiction, but in 1996 the Congress of the Republic annulled that jurisdiction, for which reason the case fell under civil jurisdiction. As of 1999, the defense counsel began once again to discuss this issue by filing various remedies, which lasted approximately 3 years.

i. Expert opinion of Mónica Pinto, former United Nations Rapporteur for Guatemala

From 1993 until April, 1997, due to an appointment by the Secretary General of the United Nations, she worked as an independent expert to examine the human rights situation in Guatemala, with the obligation to submit yearly reports to the United Nations Human Rights Committee. She visited Guatemala four times on investigative missions.

When she was appointed to this position, she became aware of the Myrna Mack Chang case. She mentioned the case in the four reports that she wrote for the United Nations Human Rights Committee.

Summary executions in Guatemala, according to the expert witness, have had different profiles over time. After a stage of massive or collective summary executions, which could be included under the “Scorched Earth” policy, there were more selective summary executions. As of the 1990s, one cannot say there were massive summary executions, save in very specific cases, such as the “Chaman” one, which was an episode in which the Army entered a village of returnees and killed every person there.

As of 1994, in the cases of summary executions, it was found that members of the Army were involved. In 1995, the right to life continued to be the right that was abridged most often in Guatemala, and summary executions continued, but at that time they began to take on another nuance, which was that summary executions began to occur against other groups, such as street children. Summary executions tended to get rid of those who due to their activities might compromise a system that should not be questioned.

Myrna Mack Chang was working in a politically sensitive ambit. The way she was executed, with 27 knife wounds, showed that it was not a traditional homicide. The four reports that the expert witness submitted to the United Nations Human Rights Committee showed that a broad sector of those in power in Guatemala considered the issue of refugees to be synonymous with membership in the guerrilla forces. Myrna Mack Chang was working on the issue of the refugees and internally displaced population, for which reason she became a threat, like all those who had somehow questioned the existing system. Basically, the members of the “Comunidades de Población en Resistencia” (CPR) were considered terrorists or subversives, and all those who helped them in any way were immediately harassed.

At the time in which the first report was drafted, all the circumstances pointed to the conclusion that Myrna Mack Chang’s death could not be due to a simple homicide, nor to a matter of passion, but rather to a policy that with premeditation decided to eliminate her.

When she visited Guatemala the first time, there was a judgment of first instance, with a 30-year prison sentence against an Army specialist, Beteta, who was the direct perpetrator of the murder of Myrna Mack Chang. It is obvious that she was murdered due to the direction of her work and the issues that she was studying.

Helen Mack Chang was the private accuser and she requested legal action against those whom it was thought were prima facie the accessories of the murder. This was turned down and in 1993 it was appealed, with a favorable decision in 1994, for which reason legal action began against five persons: three military and two policemen. In 1995 there was no progress in the case, and in 1996 the only emblematic case in Guatemala that had a final judgment with respect to the direct perpetrator was that of Myrna Mack Chang.

The file contains a routine of merely procedural steps or matters that augment the size of the file, but all these procedures are irrelevant regarding the merits, to elucidate the truth.

The issue of administration of justice was a recurring theme in the four reports that she submitted to the Committee. It was a complex problem, because things did not function effectively. Justice at the time was terribly slow, much discredited in the eyes of the population, and it did not issue effective rulings or ones that put an end to a situation in which the crimes were not punished. Actions by the judiciary, in the context in which she was entrusted with verifying the human rights situation in Guatemala, were not breaking the circle of impunity.

Guatemala at a given time experienced a “culture of threats.” All Guatemalan society that sought to somehow react suffered threats and even attacks. For example, prosecutors who took on important cases and furthered the investigation were threatened. This included the people who were in charge of the Myrna Mack Chang case: Helen Mack Chang, the Myrna Mack Foundation, and even AVANCSO. These threats tended to deteriorate the social fabric, to curtail the capacity to make complaints and to act. Every time a prosecutor was threatened, he or she had to be replaced by another one, and the file had to be studied anew.

j. Expert opinion of Henry El Khoury Jacob, attorney

Article 30 of the Constitution of Guatemala regulates confidentiality of information in the relations between private citizens and judicial or administrative offices, and not relations among the bodies of the State. Therefore, it is not possible for any body of the executive branch of government, in face of a request by a criminal court, to reply that it does not send the information based on that article. Procedural legislation in Guatemala establishes a procedure to be followed by a judge to assess official secret in these cases. It is for the judge to decide whether they are essential for the proceeding, and if so the judge establishes the need to disclose them. In this case, the judge is the sovereign authority, and the public office cannot refuse.

The Amparo, Habeas Corpus and Constitutionality Law in Guatemala is a broad one regarding the possibility of filing amparo remedies with respect to almost any procedural act by a criminal judge. In other words, based on that law, the parties have the possibility of filing amparo remedies regarding almost any decision of the court. For example, amparo remedies can be filed with respect to rejection of evidence requested by the civil actor or by the private prosecutor, or to denial of a request for photocopies of a file for the defense counsel or the civil actor or the private prosecutor, or against a measure restricting liberty, or against any other protective measure imposed upon the accused. Amparo remedies can also be filed regarding orders for investigative steps such as identity parades, search and entry orders, phone taps, mail seizure or interception.

Nevertheless, the amparo remedy is a key institution for protection of individuals’ rights, but its exaggerated use can cause a “hypertrophy” of the proceedings, which can even lead to denial of justice. This danger stems from the legal text, and not from judicial practice.

k. Expert opinion of Katharine Doyle, researcher

She did not meet Myrna Mack Chang, but in 1994 she met her sister Helen. She also rendered testimony in the domestic criminal proceeding in the Mack Chang case, regarding declassified United States documents submitted by the attorneys in the case, where they came from, why they were made available to the public, and their importance for the criminal proceeding. She testified on the role of Guatemalan military forces during the war, on the information that the United States had regarding their participation in human rights violations, and on various aspects of the military intelligence institutions.

In 1994, the “Guatemala Documentation Project” was set up and she was its director for seven years. This project was created before the establishment of the truth-finding committee, subsequently known as the “ Comisión para el Esclarecimiento Histórico,” with the aim of having access to the secret files of the United States of America and to obtain the documentation required by the investigators of said committee. She worked for the truth-finding committees in El Salvador and Honduras, and she recognized the difficultes they face to obtain information about the military who were the center of violence. The United States agencies constantly record information on these allied military forces. This was the origin of the project to try to enter the secret files of the United States of America to obtain useful information for the Guatemalan investigators, anticipating the future establishment of a truth-finding committee.

In addition to secondary sources, such as human rights reports and books, analysts of the “National Security Archives” resort to available legislation such as the “Freedom of Information Act” that authorizes obtaining declassified documents of the government of the United States, to disseminate them and create further debate on said policies. This law was passed in 1966, allowing any person to make a formal request to the United States national security and foreign policy agencies, such as the Central Intelligence Agency (CIA), the Pentagon, the Defense Intelligence Agency, the State Department, and the Agency for International Development, for them to supply information on their policies in operations. Backed by this law, in the framework of the “Guatemala Documentation Project,” they requested information on human rights cases from these agencies, especially regarding the military, the training they received, and the United States government policies. They have often had confrontations with that Government regarding requests for declassification of certain materials, and they have even had to go to court.

The information found in the declassified documents was verified through a vast collection of secondary and primary sources. After six years of research, she prepared a report on the history, structure, organization, and doctrine of the Guatemalan Army as an institution and its role during the 30-year “civil war.” Specifically, the documents analyzed contain numerous references to the role of the “Archivo” and of the Presidential General Staff or “Estado Mayor Presidencial” (EMP) in human rights violations in Guatemala. The “Archivo” in Guatemala is the name of an intelligence unit of the Presidential General Staff, created with the help of the United States. At that time, it was known as the “Regional” or as the regional telecommunications center for Central America, and it operated as an intelligence network. Its name changed in the seventies and eighties to the “Archivo” or “Archivos,” and in 1986, when a civilian took office in Guatemala, its name was changed to “Dirección de Seguridad Presidencial” or Presidential Security Directorate.

In Guatemala there were various units with intelligence responsibilities, especially: the “D2”; the “Archivo”, which operated within the EMP; the “G2” that was an intelligence unit within the armed forces that conducted field operations; and the “S2” that was a military unit in the conflict zone. The EMP is an intelligence organization and one of the branches of the armed forces. The “Archivo” is an operations unit within the EMP. If the EMP decided that a given operation, such as a murder or a kidnapping, must be carried out, the “Archivo” carried it out.

The investigation demonstrated that the main feature of the intelligence apparatus was its corporate nature and integrity, not only during the 30 years of war, but also in 1990. The intelligence community per se was a type of brotherhood. The persons who worked in the intelligence units changed positions and transferred from one unit to another, despite the fact that the units carried out different operations and policies.

The three military officers accused in the Mack Chang case were members of this intelligence brotherhood. They began their careers very early and worked in various intelligence units. General Godoy Gaitán was the director of the “D-2” and later on he was the director of the EMP. In 1990, when Myrna Mack Chang was murdered, Godoy Gaitán was the head of the “Estado Mayor Presidencial”, Valencia Osorio was the director of the “Archivo” and Oliva Carrera was second in the chain of command at the “Archivo.” It is impossible for Noel de Jesús Beteta Alvarez to have carried out the assassination of the anthropologist upon his own initiative due to the strict command structure and hierarchy within the Army. Therefore, it is inconceivable for a low-ranking soldier or “military specialist,” as Beteta Alvarez was called, to murder someone so well known upon his own initiative.

The “Military Diary” is a document created by the “Archivo” that recorded the kidnappings, interrogations and murders of dozens of Guatemalans in the mid-eighties. This book contains photographs of the victims, notes on the “subversive” activities of the suspects, details on their kidnappings, the time they were detained and whether or not they were murdered. Given the lack of Guatemalan sources of material ascribing the responsibility for the murder of Myrna Mack Chang, she analyzed the United States documents on the topic. They attributed the responsibility to the security forces, to military intelligence, and to the presidential security commandoes. In this case, it was necessary to establish which military officers were involved in an order such as the one to murder Myrna Mack Chang.

It is not true that the State of Guatemala does not have the documents requested by Helen Mack Chang, that they allege do not exist, were destroyed or cannot be supplied due to national security reasons or official secret. There is an example of the documents requested by the Mack family that were already made public without causing any damage to national security. These are general orders of the Armed Forces of Guatemala, consisting mainly of a list of staff, officers, and positions held during the time covered by said general order.

In the declassified documents there are specific references to Myrna Mack Chang as a “leftist anthropologist” or as a member of the community of non-armed opposition that constituted a threat to the Government of Guatemala, together with other persons who sought to create new political parties, anthropologists or researchers who revealed matters that were inconvenient for the State of Guatemala.

Some of the documents analyzed were contributed to the judicial proceeding. The Guatemalan judicial authorities accepted and attached validity to these documents, underlining their usefulness to determine the institutional structure of the Armed Forces, the importance of the chain of command, and the fact that the murder of Myrna Mack Chang was set within a pattern of selective violence that identified an objective considered to be a threat to the State.

l. Expert opinion of Iduvina Hernández, a journalist

From 1992 to 1995 she worked in the national section of “Revista Crónica” in Guatemala, for which reason she studied the operation of the intelligence systems in Guatemala and especially of the Presidential General Staff. Her sources included interviews with two heads of the Presidential General Staff, intelligence directors and military officials of the various governments at the time. She also knew of the Mack Chang case.

The counterinsurgency doctrine is a modality undertaken by application of the doctrine of national security to the specific case, positing that the State is the main axis of security and acting by defining a given person as an internal enemy of this State because he or she is considered a dissident. The State also assigns to the armed forces, to the Army, the responsibility for that doctrine.

This doctrine was applied in Guatemala, especially during the armed domestic conflict. When Guatemala signed the Inter-American Treaty of Reciprocal Assistance (TIAR), it adopted special military training manuals (for intelligence, interrogation, and source management), within the framework of the national security doctrine, which defined the contents of the campaign plans that governed the activities of the Army and the intelligence objectives of all units, including the Presidential General Staff. This doctrine, contrary to international humanitarian law, defined the combat structure of the armed forces and set the frame for selection of intelligence objectives, defining the work methods, the structure and the deployment of the various organizations in the intelligence system.

Any person or any organization whose activity might be deemed contrary to the State and to the established order was classified as an “internal enemy.” In this case, an academic field research study that might encompass areas or spaces that were of interest as military or intelligence objectives within the counterinsurgency process would fall under this definition of an “internal enemy.”

During the 1980s and early ‘90s, the intelligence systems in Guatemala had a structure with hierarchical responsibilities, down to the operational units of the various sections or levels of intelligence, in each of the military departments. In addition to their legal intelligence functions, they conducted absolutely illegal and clandestine intelligence operations and activities. An intelligence channel is a mechanism by which an intelligence structure establishes the lines of communication with its various units, independently of the normal hierarchical structure of an army. In other words, there is an established hierarchical structure from the general commander, through the high command, down to he heads of the Presidential General Staff and then the military zones. This is the normal military channel.

The governing law for the Guatemalan Army establishes several General Staffs, including the Presidential General Staff. While the legal mission of the Presidential General Staff, which still exists today with no changes in its functions and structures, is to ensure the security of the President of the Republic, of the Vice-President and of their next of kin, the Presidential General Staff has always had an intelligence unit, under various names, which committed many illegal acts that especially violated human rights in Guatemala.

The “Archivo” is one of the names given to said intelligence unit, and it is probably the name by which it is known most often, although it was also called Regional Telecommunications Office and Presidential Security Department. The “Archivo” carried out intelligence operations based on the fieldwork of the intelligence units in geographic areas in the interior of the country or in the city; it also gathered information on the activities of any person or institution that had been defined as an “internal enemy.” Once a person or an institution had been selected, they were labeled as objectives for intelligence units.

The hierarchical structure of the Presidential General Staff, as regards its officers and those in charge of the various sections, was based on a first and second officers in charge. It has analysis sections that are technical in nature, operational and administrative sections. Therefore, no intelligence agent, whatever his rank, can autonomously plan, prepare and implement a special intelligence operation, as any operation would require a specific plan and a written or verbal order. The murder of Myrna Mack Chang fits into this systematic pattern of an intelligence operation, as she was followed after a file had been received with her profile, and the intelligence unit of the Presidential General Staff used a set of resources.

At that time, the director of the National Police had previously been the director of the “Archivo.” This person was at the scene of the crime and he eliminated any possibility of obtaining any type of prints, when usually lower-rank agents, and not the director, analyze any crime scene.

The police took no prints arguing that it had rained, but it was proven that at the time of the crime that day it had not rained. They also cleaned whatever residues might be on Myrna's fingernails, demonstrating an attitude that altered the scene of the crime. The data reporting certain entries to and exits from the offices of the Presidential General Staff on the day of the murder were manually altered. The authorities of the Guatemalan Ministry of Defense refused to provide the information to the judges to learn in detail the entries and exits of vehicles, activity reports, among others, an action that breached the Guatemalan legal order that establishes, in the Criminal Procedures Code, a mechanism for the judges to obtain classified information and maintain due confidentiality. Possible classification of a document as secret does not and cannot justify not providing such material to the judges.

From the time when she was summoned to render her expert opinion before the Inter-American Court, she has feared for her personal safety. Specifically, her computer was examined on December 22 and 26, outside business hours and during vacations. She also received a number of threatening phone calls in February, 2003. She filed complaints regarding all the above. She is afraid that some entity linked to the Guatemalan State may react violently because she has given her expert opinion.

m. Expert opinion of Alicia Neuburger, a psychologist

The grieving process begins with the irruption of a very painful or violent fact that causes a trauma, for which reason it is necessary for the psyche to begin to invest energy to overcome that event. It goes through several stages, starting with perplexity and denial, a necessary period for the psyche to adjust to that irruption. Then, when the person is aware of what happened, there is a period of great grief and depression with a whole set of symptoms that includes somatic aspects. There are bursts of indignation, extreme anger, there will probably be denial once again, and feelings of guilt. If the event is a natural one, the grieving process has a chronological timeframe with a more or less determined duration; instead, if that is not the case, as happened to the Mack Chang family, it may never be fully completed.

The psychological consequences of State violence, and specifically of extra-legal executions, for the next of kin of the victim vary and they depend on the age of each person and his or her relationship with the victim. Such a violent death is not natural. Depressive states are quite frequent, and they often become chronic, with some type of remission, aggressiveness, and character changes. There are several symptoms, such as bursts of irritability and aggression, difficulty to concentrate, nightmares, problems sleeping, difficulties or alterations with respect to eating, a generally low motivation, extreme tiredness, and symptoms that are called psychosomatic, or directly related to the emotional state.

Some of these effects are suffered by all the next of kin. The siblings may have major feelings of guilt. For the children it is quite different. If the children are small or adolescents, it is even more difficult, it is very hard for them to understand. The family does not understand either, and they also try to protect them, which creates a circle of mistrust, an affective withdrawal. The children, especially during adolescence, as in this case, face a sudden interruption of their process of building an adult life project.

All these consequences worsen when there is no justice. Another damage is added when those responsible are not punished. The brutal form of the facts is another aggravating factor with respect to the emotional state. Lack of protection by the State interrupts and impedes the process of grieving of the whole family. Impunity causes a feeling of disbelief, first regarding institutions and then toward all of society, including the most intimate relations. There are feelings of powerlessness and indignation that affect the individuals’ whole lives because they have to invest a great amount of energy to overcome that indignation, that powerlessness. Therefore, punishment of those responsible helps the grieving process take place.

Based on this, a general psychological diagnosis was carried out. The whole Mack Chang family has been affected in all areas of its life; they had to set aside or truncate life projects, they suffered and continue to suffer, especially the mother, a chronic process of depression. They had to isolate themselves, set friendships and social life aside. They all have a feeling of great mistrust toward Guatemalan society in general and toward the world. They are hesitant to express feelings, to avoid feeling more vulnerable and to be able to continue. There were other organic symptoms of the emotional state, such as deafness in the case of Myrna Mack Chang’s brother and a problem in her brother’s head.

The fact that those responsible were not punished gave rise to a pattern of permanent grieving. For this reason, it is essential for those responsible to be punished for this not to become an eternal grieving. The murder was an act of public, institutional violence. The family suffered horrible intimidation and still suffers false accusations. The need to reestablish Myrna Mack Chang’s good name is a necessary symbolic reparation for the peace of mind of all the family. It is also necessary for the family to receive psychological assistance individually and as a family.

She interviewed the family of Myrna Mack Chang in Guatemala, as a group and individually. To complement her general expert opinion, she submitted to the Court the individual psychological reports for Zoila Chang Lau, Marco Mack Chang and his wife, Helen Mack Chang, Ronald Chang Apuy, and Lucrecia Hernández Mack.

C) EVIDENCE ASSESSMENT

Evaluation of the Documentary Evidence

128. In this case, as in others, the Court accepts the probatory value of those documents that were submitted by the parties at the appropriate procedural moment or as evidence to facilitate adjudication of the case, which was not disputed nor challenged, and the authenticity of which was not questioned. On the other hand, pursuant to Article 43 of the Rules of Procedure, the Court admits the evidence submitted by the parties regarding the supervening events that occurred after the application was filed.

129. It should be recalled that the body of evidence in a case is unique and indivisible and is composed of the evidence submitted during all stages of the proceeding, so the documents contributed by the parties with respect to the preliminary objections are also part of the evidence in the instant case, even if the State subsequently withdrew said objections (supra paras. 25 and 27).

130. With respect to the written sworn statements rendered by Clara Arenas Bianchi and Carmen de León-Escribano Schlotter, as well as by expert witness Bernardo Morales Figueroa, the Court deems them pertinent inasmuch as they are in accordance with the object defined by the Court in the Order to receive them (supra para. 35).

131. As regards the documents requested by this Court on the basis of Article 44 of the Rules of Procedure and that were submitted by the parties (supra paras. 55 and 57) the Court includes them in the body of evidence in the instant case, pursuant to the provision of paragraph one of that Article. The Report of the Comisión para el Esclarecimiento Histórico, “Guatemala, memoria del silencio” (hereinafter “CEH Report”), the “Informe para la Recuperación de la Memoria Histórica” of the Human Rights Office of the Archbishopric, “Guatemala: Nunca más: los mecanismos del horror (hereinafter “REMHI Report”), the December 29, 1996 Peace Accord, “Acuerdo de Paz Firme y Duradera entre el Gobierno de la República de Guatemala y la Unidad Revolucionaria Guatemalteca,” the Political Constitution of the Republic of Guatemala and the Criminal Procedures Code in force at the time of the facts, are deemed useful documentation to decide on the instant case, for which reason they are added to the body of evidence, pursuant to the provisions of Article 44(1) of the Rules of Procedure. The documents submitted by the Commission and by the State after the application and the answer to the application were filed, respectively (supra paras. 122 and 124), as well as the annexes submitted by the representatives of the next of kin of the victim together with their final pleadings (supra para. 51), are also included in the body of evidence, in accordance with said Article of the Rules of Procedure. As regards the press documents submitted by the Commission (supra paras. 18 and 122), while they are not documentary evidence, they are important insofar as they express publicly known and notorious facts that corroborate aspects pertaining to the instant case.

Evaluation of the Testimonial Evidence and Expert Opinions

132. With respect to the testimony rendered by Lucrecia Hernández Mack and Helen Mack Chang (supra paras. 127.c and 127.d), the Court admits it insofar as it is in accordance with the object of the examination proposed by the Commission and the representatives of the next of kin of the victim. In this regard, the Court notes that, in general, the statements of the next of kin of the victims are especially useful in matters pertaining both to the merits and to reparations inasmuch as they can provide very pertinent information on the damages caused by the violations. However, since the next of kin have a direct interest in the instant case, their statements cannot be assessed in an isolated manner, but rather within the whole set of evidence in the proceeding.

133. Regarding the testimony of Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Henry Monroy Andrino, Gabriela Vásquez Smerelli, and Nadezhda Vásquez Cucho, as well as the expert opinions of Katharine Doyle, Henry El Khoury Jacob, Iduvina Hernández, Mónica Pinto, and Alicia Neuburger (supra paras. 127.a, 127.b, 127.e, 127.f, 127.g, 127.h, 127.i, 127.j, 127.k, 127.l and 127.m), which were neither disputed nor challenged, the Court admits them and gives them value as evidence.

VIII
PROVEN FACTS

134. Based on what was stated above regarding acknowledgment of responsibility by the State in the instant case, the facts set forth in the application, the documentary evidence, the statements of the witnesses, the expert opinions of the expert witnesses, and the statements by the Commission, by the representatives of the next of kin of the victim and by the State, the Court deems the following facts proven:

With respect to Myrna Mack Chang

134.1. Myrna Mack Chang was born in Retalhuleu, Guatemala, on October 24, 1949. She was an anthropologist who graduated in Social Science from Universidad de San Carlos de Guatemala; she obtained an advanced diploma in economic and social science at Victoria University of Manchester, England, and a Masters degree in social anthropology from the University of Durham, England;

134.2. Myrna Mack Chang studied the phenomenon of internally displaced persons and of the Comunidades de Población en Resistencia (CPR) in Guatemala during the armed conflict. She was a founding member of the Asociación para el Avance de las Ciencias Sociales en Guatemala (AVANCSO), established in 1986 with the aim of conducting research on the causes and consequences of the displacement of rural indigenous communities, the living conditions of the victims of this phenomenon, and government policies toward the displaced population. Based on her research, Myrna Mack Chang reached the conclusion that the main cause of the internal displacements of the Guatemalan indigenous communities was the Army’s counterinsurgency program. She deemed the efforts of the Government to solve these problems “minimal,” and she criticized the Army’s policies toward the displaced population;

134.3. for several days prior to the extra-legal execution and on dates that have not been determined, Myrna Mack Chang had been under surveillance and followed by a group of men, including Noel de Jesús Beteta Álvarez, who was the Sergeant Major Specialist of the group at the Security Section of the Presidential General Staff (EMP);

134.4. on September 11, 1990, at approximately 20:00 hours, when she left her office at AVANCSO, located on 12th street and 12th avenue of Zone 1 in Guatemala City, Myrna Mack Chang was attacked by at least two persons. The victim died at the scene of the facts due to 27 cutting wounds to the neck, thorax and abdomen, caused by a “cutting and thrusting weapon,” which caused a “hypovolemic shock” and her death;
134.5. one of the direct perpetrators of the murder was Noel de Jesús Beteta Álvarez (infra para. 134.22);

134.6. Myrna Mack Chang was placed under surveillance and extra-legally executed in a military intelligence operation developed by the high command of the Presidential General Staff;

134.7. the extra-legal execution of Myrna Mack Chang was politically motivated, due to the research activities that she carried out with the Comunidades de Población en Resistencia (CPR) and the policies of the Guatemalan army toward them. This situation was viewed as a threat to national security and to the Guatemalan Government;

Political, social, and juridical context at the time of the death of Myrna Mack Chang

134.8 at the time of the facts pertaining to this case in 1990, Guatemala was in the midst of an internal armed conflict;
134.9. in December, 1996, the State of Guatemala and the representatives of the Unidad Revolucionaria Nacional Guatemalteca (URNG) signed the peace accord “Acuerdo de Paz Firme y Duradera,” with the aim of ending the armed conflict. Said Accord validated the twelve agreements reached during previous negotiations. One of these, signed in Oslo, Norway, on June 23, 1994, referred to “the establishment of the ‘Comisión para el Esclarecimiento Histórico’ to elucidate the human rights violations and acts of violence that have caused suffering to the Guatemalan population.” This truth-finding committee rendered its report on February 25, 1999;

134.10. from the second half of the 1980s until the formal end of the armed conflict in 1996, there were selective extra-legal executions in Guatemala with the aim of “social cleansing” to “exterminate those whom [the State] deemed enemies,” that is, all those individuals, groups or organizations that, allegedly, worked to break down the established order. Through the systematic practice of arbitrary execution, “agents of the State physically eliminated their opponents, while they also sought to repress, silence, and control the population as a whole, through terror, both in the urban and in the rural areas;”

134.11. selective arbitrary executions, in general, were operations carried out by the intelligence bodies of the State and they had common patterns and characteristics. First, they identified the individual or individuals who would be the target of the intelligence action. Subsequently, they gathered detailed information on that person, monitored the individuals’ communication, and followed the person to establish his or her daily routine. The information obtained was evaluated and interpreted, with the aim of planning the operation. The staff who would participate, their functions, who would be responsible, the vehicles and the weapons to be used would be established, as well as whether the operation would be public or clandestine. The orders were verbal and there were no written records of the decision or of the planning, so as to ensure the covert nature of the operation;
134.12. the decision to execute certain persons was accompanied by acts and maneuvers that sought to obstruct the judicial proceedings directed at elucidating the facts and punishing those responsible;

134.13. during the armed conflict and even today, the courts in Guatemala have been incapable of effectively investigating, prosecuting, trying, and punishing those responsible for human rights violations. The courts have often subordinated their actions to the executive branch or to military influence, “applying legal provisions or rules that are contrary to due process or not applying those they should have;”

With respect to the structure of military intelligence and the functions of the Presidential General Staff

134.14. the intelligence services in Guatemala have been responsible for multiple human rights violations;

134.15. the intelligence services have changed their structure and internal organization over time, in response to government policies, to military dynamics proper, and to evolution of the armed conflict. Guatemalan intelligence has been designed, and its operations directed and executed mainly by two bodies: the Intelligence Section of the Army, subsequently called Intelligence Directorate of the General Staff of the National Defense and generally known as “D-2”, and the intelligence unit of the Presidential General Staff, where there have been levels of operational coordination;
134.16. the Presidential General Staff is a special team of military personnel assigned to the President of the Republic, formally entrusted with his security and that of his family. It is composed of various departments, among which the intelligence unit called Presidential Security Department, also known as “La Regional” or the “Archivo” stands out;

134.17. the “Archivo” was a secret operational unit entrusted with executing the orders of the Presidential General Staff. It conducted clandestine intelligence operations: control, detentions and interrogations and executions. The “Archivo” was headed by an intelligence officer, with the assistance of another officer called deputy head or second head, generally a major. The unit included a substantial number of specialists and civilians, and had a vast network of informants;

134.18. in 1990, general Edgar Augusto Godoy Gaitán was the Head of the Presidential General Staff; Juan Valencia Osorio was the Head of the Presidential Security Department of the Presidential General Staff, and Juan Guillermo Oliva Carrera was the Deputy Head of the Presidential Security Department of the Presidential General Staff;

With respect to the judicial proceedings

134.19. lack of diligence in processing of the criminal proceeding and its obstructions make it obvious that the courts have not demonstrated their will to elucidate all the facts pertaining to the extra-legal execution of Myrna Mack Chang and to try and punish all the direct perpetrators and accessories, as well as others who are responsible for depriving the victim of the right to life and for covering up the extra-legal execution and the other facts in the instant case;

Criminal proceeding against Noel de Jesús Beteta Álvarez

134.20. on September 11, 1990, the Justice of the Peace on Duty ordered the pre-trial investigative procedure to begin, and visited the scene of the occurrence, where he conducted a judicial inspection of the body of Myrna Mack Chang and then ordered the respective necropsy. The Public Prosecutor’s Office also appeared in the proceeding. Once the competence of the Justice of the Peace had been exhausted, he forwarded all the proceedings to the Second Criminal Trial Court of First Instance;

134.21. on October 10, 1990, Helen Mack Chang filed charges before the Second Criminal Court of First Instance against all those who were found responsible for the murder of her sister Myrna Mack Chang. Once the preliminary proceedings had been completed, the Secretariat of the Supreme Court designated the Third Criminal Trial Court of First Instance to continue hearing the proceeding;

134.22. on February 12, 1993 the Third Criminal Trial Court of First Instance sentenced Noel de Jesús Beteta Álvarez, specialist of the Presidential General Staff, to 25 incommutable years in prison for the crime of murder against Myrna Mack Chang. The conviction was based on the “premeditation and extreme cruelty, in the course of several days, on unspecified dates, [Beteta] kept watch on the movements of Myrna Elizabeth Mack Chang together with other unknown individuals, whose plans were deliberately organized with the intention of physically eliminating her, an act that they carried out on September eleventh, nineteen ninety.” The Court, “for lack of evidence at the current time,” abstained from leaving the proceeding open against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, Juan Guillermo Oliva Carrera, and other perpetrators of the murder “until the Human Rights Ombudsman specifie[d] [...] the other participants responsible for the death of Myrna Elizabeth Mack Chang;”

134.23. on May 3, 1993, the Public Prosecutor’s Office filed an expansion remedy against this conviction, so as to leave the proceeding open and for the Judge of first instance to take new steps to identify the other direct perpetrator of the murder of Myrna Mack Chang. On May 4, 1993, the Fourth Chamber of the Court of Appeals decided that the expansion “remedy is out of order because it is time-barred.” The Public Prosecutor’s Office filed an application for reconsideration before that same Chamber, which was dismissed on May 21, 1993;

134.24. private accuser Helen Mack Chang filed an appeal before the Court of Appeals against the February 12, 1993 judgment of the Third Criminal Trial Court of First Instance, without participation of the Public Prosecutor’s Office. In said remedy, she requested that the proceeding remain open against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, Juan Guillermo Oliva Carrera, Juan José Larios, Juan José del Cid Morales and an individual whose surname is Charchal, as accessories in the murder of her sister Myrna Mack Chang. The defense counsel for Noel de Jesús Beteta Álvarez also filed an appeal for annulment of said conviction. On April 28, 1993, the Fourth Chamber of the Court of Appeals rejected the remedy filed by the private accuser, confirming the contested judgment. The private accuser filed an expansion remedy for the Court of Appeals to explain “the legal and doctrinary grounds” for not leaving open the proceeding against the other persons accused. This remedy was rejected on June 14, 1993 by the Fourth Chamber of the Court of Appeals, for which reason the private accuser filed an appeal for annulment of the respective decision before the Supreme Court of Justice;

134.25. on February 9, 1994 the Supreme Court of Justice found the appeal for annulment filed by the private accuser to be in order; it found the remedy filed by Noel de Jesús Beteta to be out of order; it annulled the decision of the Fourth Chamber of the Court of Appeals, and it left open the proceeding against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, Juan Guillermo Oliva Carrera, Juan José Larios, Juan José del Cid Morales, and an individual whose surname is Charchal. In this ruling, the Supreme Court of Justice established that Helen Mack Chang’s right to due process was abridged, because “she was inhibited from continuing to exercise her right to accuse, so that the possible participation of all the accused could be established in a single proceeding, especially because the records lead to infer suspicions of their possible involvement in committing said crime;”

Delays in the criminal proceeding against the alleged accessories

134.26. the parties have filed at least fifteen amparo remedies –the private accuser filed three and the defense counsel filed twelve- and numerous objections to judges, applications for reconsideration, requests for amnesty and constitutional motions, throughout the proceeding against the alleged accessories of the murder of Myrna Mack Chang; there were also appeals against several of the rulings that rejected said remedies. Both the processing of the remedies and of the appeals and non-compliance with procedural teams and disputes over competence have led to substantial delays in the criminal proceeding;

Continuation of the criminal proceeding against the alleged accessories

134.27. on March 10, 1994, the accused Juan Valencia Osorio, Juan Guillermo Oliva Carrera, and Edgar Augusto Godoy Gaitán filed three amparo remedies before the Constitutional Court against the February 9, 1994 ruling of the Supreme Court of Justice, which had left open the judicial proceeding against them for the murder of Myrna Mack Chang. On December 6, 1994, the Constitutional Court rejected said amparo remedies, and this decision was notified on March 9, 1995;

134.28. on March 29, 1995, the Third Criminal Trial Court of First Instance decided to remit the proceeding to the Military Court of First Instance of the Department of Guatemala for it to continue hearing the proceeding in accordance with the new Criminal Procedures Code;

134.29. on December 6, 1995 the private accuser filed a “query on competence” before the Military Court of First Instance of the Department of Guatemala, arguing that the proceeding should be heard under civil rather than military jurisdiction. On December 11, 1995, the Military Court flatly rejected the query on competence, deeming it to be out of order. On December 18, 1995 the private accuser filed an appeal against the previous ruling and requested that the case record be forwarded to the Supreme Court of Justice for it to rule on the appeal. On February 1, 1996 the Fourth Chamber of the Court of Appeals overturned the December 11, 1995 ruling and ordered the judge hearing the case to forward the case record to the Supreme Court of Justice for the respective Chamber to “hear the query on competence.” On March 18, 1996 the Criminal Chamber of the Supreme Court of Justice decided to return the case record to the Military Court of First Instance of Guatemala because “this Court cannot hear a query on competence that does not exist because it was not raised before the respective Judge;”

134.30. on June 6, 1996, the Public Prosecutor requested a “writ of indictment” against the accused, arguing that the motivation for the murder was political, derived from the work carried out by Myrna Mack Chang as a social anthropologist; that the issue of displaced population was politically sensitive for the Government, including the Army, insofar as Myrna Mack Chang’s research affected the military strategy of counterinsurgency and restricted the freedom with which military operations were carried out with respect to these population groups; that Myrna Mack Chang was known to the Army and due to her work she had been identified as a person close to the insurgency; that the public appearance of the communities of resisting population was attributed to the Bishop of Quiché and to Myrna Mack Chang, and this was closely linked to her murder; that the execution of Myrna Mack Chang was carried out by the Presidential General Staff and that the order to murder her was issued by the accused;

134.31. on June 11, 1996, Helen Mack Chang asked the Military Judge to issue a “writ of indictment” against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and Juan Guillermo Oliva Carrera and a “preventive commitment order” against these same persons, arguing that there were sufficient reasons to believe that the defendants participated as accessories in the murder of Myrna Mack Chang;

134.32. it was only then, on June 11, 1996, that the Military Court issued a “writ of indictment as possible accessories of the murder of Myrna Elizabeth Mack Chang” against the three accused persons. The Judge did not order detention of the detainees, but instead, as a an alternative measure, he set a bail bond of fifty thousand quetzales each and the obligation to sign the respective book at the Court every fifteen days. On June 17, 1996, the private accuser appealed against this ruling, as the accused had demonstrated an obvious will to alter the evidence and obstruct the action of the legal system, for which reason they should be remanded in custody. The accused appealed the ruling, based on the argument that there were not sufficient grounds to issue the order against them. The ruling of the Military Court was upheld on July 1, 1996 by the Fourth Chamber of the Court of Appeals;

Transfer of the case to civilian jurisdiction in view of Decree No. 41-96

134.33. in July, 1996, a Congressional decree established that military jurisdiction would only apply to members of the armed forces who committed military crimes that affected the Army. All applicable cases pending before military courts were transferred by the Supreme Court of Justice to civil courts;

134.34. on July 24, 1996, the Supreme Court of Justice forwarded the case records of the Military Court of First Instance of the Department of Guatemala to the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, which was a civil court. On July 30, 1996, the latter Court decided to disqualify itself from hearing the case and forwarded the case records to the First Criminal Trial Court of First Instance, which was a specially designated court to hear cases under the former criminal procedures court that had been repealed, as it was deemed that that the proceeding against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and Juan Guillermo Oliva Carrera was a continuation of that against Noel de Jesús Beteta Álvarez, in which an order for the trial to commence had already been issued and therefore the rest of the proceeding should take place under the procedural code that had been repealed;

134.35. on August 9 and 12, 1996, the Special Prosecutor in the case and the private accuser, respectively, filed appeals against the ruling on self-disqualification of the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, based on the fact that the proceeding against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and Juan Guillermo Oliva Carrera began with the cassation judgment, for which reason it is juridically impossible to argue that their proceeding and that against Noel de Jesús Beteta Álvarez are one and the same. The accused filed an application for reconsideration against that ruling. The Court processed the appeals filed by the Public Prosecutor’s Office and the private accuser, and declared the application for reconsideration file by the accused out of order. The Third Chamber of the Court of Appeals heard the appeals filed by the Public Prosecutor’s Office and by the private accuser and found them inadmissible on August 21 and September 4, 1996, respectively;
134.36. on October 20, 1996 the private accuser filed an amparo remedy before the Supreme Court of Justice against the Justices of the Third Chamber of the Court of Appeals. On February 24, 1997, the Supreme Court of Justice found the amparo remedy to be notoriously inadmissible because it was time-barred;

134.37. on October 15, 1996, the private accuser filed an amparo remedy before the Third Chamber of the Court of Appeals against the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance regarding the latter’s ruling in which it disqualified itself from continuing to hear the proceeding. On February 27, 1997, the Third Chamber of the Court of Appeals found this remedy inadmissible. On March 14, 1997, the private accuser filed an appeal against that ruling and the case records were forwarded to the Constitutional Court;

134.38. on September 13, 1996, since the appeal filed against the Ruling of the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance had been found inadmissible, the Special Prosecutor in charge of the case filed an inhibitory “query on competence” before that same Court, for the proceeding to be heard pursuant to the Criminal Procedures Code in force. This Court received the writ and forwarded it to the First Criminal Trial Court of First Instance without issuing a decision or ruling on it;

134.39. on September 19, 1996, the First Criminal Trial Court of First Instance, which had received the case file from the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, when it analyzed the case records, filed a “query on competence” and therefore it forwarded the case records to the Supreme Court of Justice for it to decide. It also forwarded to the Supreme Court the “inhibitory query on competence” that had been filed by the Public Prosecutor in the case;

134.40. on October 15, 1996, the Supreme Court ruled that the case should be processed according to the provisions of the Criminal Procedures Court that had been repealed, based on the fact that the order to commence trial had already been issued when the proceeding against the current defendants was left open. On November 19 and December 10, 1996, the private accuser and the Public Prosecutor’s Office, respectively, filed amparo remedies before the Constitutional Court against that ruling;

134.41. pursuant to the rulings, all the case records were forwarded to the First Criminal Trial Court of First Instance. On November 12, 1996, this Court ordered the joinder of the proceeding against Beteta Álvarez and that against the alleged accessories, as well as continuation of the proceeding in the state in which it was at that time. The Public Prosecutor filed an expansion and clarification remedy against that ruling, as in the proceeding against Beteta Álvarez there was res judicata and there was no certainty regarding the procedural stage at which the joinder of both proceedings would take place. On December 3, 1996, the Court found the remedy to be in order and ruled that the joinder would be effective with respect to defendants Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and Juan Guillermo Oliva Carrera, and not with respect to Noel de Jesús Beteta Álvarez; it also annulled all actions in the case carried out under the new Criminal Procedures Code, including the investigation carried out by the representative of the Public Prosecutor’s Office under the new Code, as it was conducted by an authority who was not competent for this. The private accuser and the Public Prosecutor’s Office filed appeals against this ruling. Both appeals were found inadmissible by Tenth Chamber of the Court of Appeals ;

134.42. on August 12, 1997, the Constitutional Court decided to grant the amparo remedies requested by the private accuser and the Public Prosecutor’s Office (supra para. 134.40) regarding the matter of which court was competent to continue the proceeding with respect to the murder of Myrna Mack Chang and it decided that the proceeding should continue to be processed under the rules of the Criminal Procedures Code in force. The Constitutional Court decided to grant the amparo to the applicants and to “definitively suspend” the October 15, 1996 ruling of the Supreme Court of Justice, according to which the First Criminal Court of First Instance was the competent court to hear the criminal proceeding, as well as to “definitively suspend” all subsequent actions carried out under the Criminal Procedures Code that had been repealed;

134.43. with this ruling, and since it was the same issue of the query on competence, on September 2, 1997 the private accuser desisted from continuing the appeal against the Third Chamber of the Court of Appeals that had confirmed the self-disqualification of the Criminal, Drug Trafficking and Environmental Crimes Court of First Instance. The steps being taken before the First Trial Court regarding the main proceeding conducted under the provisions of the Criminal Procedures Code that had been repealed were also finalized;

134.44. the case file was forwarded by the judicial authorities to the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance and a closing date of June 23, 1998 was set for the preliminary proceedings investigative phase;

134.45. on June 18, 1998, Lucrecia Hernández Mack appeared as a “partie civile” in the criminal proceeding;

134.46. on June 23, 1998, the Public Prosecutor filed charges against the alleged accessories of the murder of Myrna Mack Chang before the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance and requested opening of the oral and public trial phase;

134.47. on June 22, 1998, the private accuser filed an objection against the Judge of the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance in which she requested that he be separated from the case due to his irregular actions in processing of the case and due to obvious prejudice in favor of the defendants. That Judge found the objection inadmissible on June 23, 1998 and forwarded the case file to the Third Chamber of the Court of Appeals. On September 17, 1998, the Third Chamber of the Court of Appeals decided to remove the Judge of First Instance from the case and ordered the proceedings transferred to the Second Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, for it to continue processing the case;

134.48. the Judge of the Second Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, Henry Monroy Andrino, was left in charge of the case and he ordered that the hearing of the intermediate stage be held on January 27, 1999. At this hearing, the new Public Prosecutor ratified the charges filed before the First Criminal Court of First Instance;

134.49. on January 28, 1999, the Second Criminal, Drug Trafficking and Environmental Crimes Court of First Instance issued the order for the trial to commence against Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and Juan Guillermo Oliva Carrera as possible accessories of the murder of Myrna Mack Chang, deeming that “there are serious grounds to try the defendants in an oral and public trial due to the probability of their participation in the facts that they are accused of committing.” It was established that the competent court to continue the trial in this new stage was the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court;

134.50. on February 16, 1999, the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court issued a ruling in which it declared that it was not competent to hear the case and ordered that it be forwarded to the Second Criminal, Drug Trafficking and Environmental Crimes Trial Court. The arguments of the Court to declare that it was not competent were that the investigative process and its preparatory stage were under the control of the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, and this Court even began the intermediate stage of the case; subsequently, due to the objection filed by the private accuser against the Judge, the proceeding was forwarded to the Second Court of First Instance, and in the opinion of this Court, after this ruling was issued the proceeding “must return to the normal line regarding pre-established territorial competence” and therefore it should be forwarded once again to the Second Criminal, Drug Trafficking and Environmental Crimes Trial Court for it to continue with the established competence;

134.51. once it received the proceeding on February 19, 1999, the Second Criminal, Drug Trafficking and Environmental Crimes Trial Court posed, on its own motion, a “query on competence” to hear the case, and the judicial records were therefore forwarded to the Criminal Chamber of the Supreme Court of Justice for it to decide which court should continue to hear the case;

134.52. on March 11, 1999, the Criminal Chamber of the Supreme Court declared the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court competent to hear the oral trial in this case. In that same ruling, it ordered that the case records be forwarded to the Second Criminal, Drug Trafficking and Environmental Crimes Court of First Instance for it to clearly, precisely, and in a detailed manner specify the punishable act ascribed to the defendants, since it had not done so in a concrete manner in its January 28, 1999 ruling;

134.53. pursuant to the previous ruling, on March 18, 1999, Judge Henry Monroy Andrino of the Second Criminal Court of First Instance expanded and specified the January 28, 1999 ruling (supra para. 134.49). Judge Monroy Andrino’s order included, inter alia, the following items: 1) Edgar Augusto Godoy Gaitán, as Head of the Presidential General Staff, together with Juan Valencia Osorio and Juan Guillermo Oliva Carrera, Head and Deputy Head of the Presidential Security Department of the Presidential General Staff, respectively, planned and ordered a plan to keep watch on and physically eliminate Myrna Mack Chang; 2) said plan consisted of monitoring the activities of the victim, especially through constant surveillance of her house and following her personally; 3) the plan culminated with the physical elimination of the victim, carried out by Noel de Jesús Beteta Álvarez, assigned to the Presidential Security Department of the Presidential General Staff, together with other unidentified persons; 4) the accused planned and ordered the death of Myrna Mack Chang because they deemed that the anthropologist had ties with the communities of resisting population and that her investigations on the displaced population groups affected military strategy and harmed the image of the State; and 5) once the murder had been committed, the accused sought to cover up the crime, carrying out acts of intimidation, ordering alterations to and disappearance of documents, as well as influencing the refusal to provide information to the representative of the Public Prosecutor’s Office;

134.54. on May 23, 1999, the private accuser objected to the President of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court, who had acted as judge in the Third Criminal Trial Court of First Instance, based on the argument that a judge cannot hear a proceeding when he has been in contact with the case in previous instances. On August 5, 1999, the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court turned down the objection;

134.55. the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court heard an objection regarding lack of competence, filed by the defendants on May 25, 1999, in which they argued that they should be tried by military courts. On August 26, 1999, the objection regarding lack of competence was rejected, because the request by the defendants was not based on new facts and Article 219 of the Constitution of Guatemala allows civil courts to hear cases of common crimes committed by the military, pursuant to an interpretation by the Constitutional Court. On August 31, 1999, the defendants filed a generic appeal against this ruling before the Third Trial Court, which was rejected on September 2 of that same year. On September 7, 1999, the defendants filed a remedy of complaint against this last ruling before the Fourth Chamber of the Court of Appeals, and it was rejected on September 27, 1999;

134.56. after ruling on the generic appeal, on September 9, 1999 the Third Criminal Trial Court allowed 8 days for the parties to submit evidence. On September 21, 1999, Juan Guillermo Oliva Carrera filed an amparo remedy against this order of the Third Trial Court before the First Chamber of the Court of Appeals, arguing that the court continued the process despite a complaint before the Fourth Chamber of the Court of Appeals on which there was still no ruling. On September 28, 1999, the amparo remedy was rejected because the prior steps had not been exhausted, since there was a remedy of complaint pending before the Appellate Chamber;

134.57. on November 4, 1999, the defendants filed an amparo remedy before the Supreme Court of Justice against the ruling of the Fourth Chamber of the Court of Appeals that found the remedy of complaint filed by them against the Third Trial Court inadmissible. On March 23, 2000, the Supreme Court of Justice rejected the amparo remedy deeming it notoriously inadmissible, ordered payment of legal costs by the one who brought the action, and fined their defense counsel. On March 31, 2000, the defendants filed an appeal against the ruling of the Supreme Court of Justice on the amparo remedy before the Constitutional Court. On May 8, 2000, the Constitutional Court decided to summon a hearing on May 11, 2000, for the parties to state their position on the matter. On May 11, 2000, the private accuser at the respective hearing requested that the appeal regarding the amparo remedy be rejected to allow the proceeding to move forward. On August 1, 2000, the Constitutional Court found the appeal regarding the amparo remedy filed by the defendants unfounded;

134.58. on October 6, 2000, the Third Trial Court issued a ruling in which it ordered that the objection filed by the defendants against all the judges who constituted the Third Trial Court itself be forwarded to the Fourth Chamber of the Court of Appeals for it to hear that objection. Previously, the Third Trial Court rejected the objection because it deemed that it had no legal or factual basis at all. It also ordered continuation of the proceeding. The September 9, 1999 ruling of the Third Court ordering submission of evidence (supra para. 134.56) was not notified to the parties until October 10, 2000; the private accuser and the defendants submitted evidence to the Court on October 18 and 19, 2000;

134.59. on October 31, 2000, the Fourth Appellate Chamber found the objection filed by the defendants inadmissible and ordered the case file to be returned to the Third Trial Court, for it to continue the respective process;

134.60. on May 29, 2001, the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court, deeming that the previous actions had not included Lucrecia Hernández Mack as a “partie civile,” declared “all actions of this Court absolutely null, since the May 12, 1999 ruling, with the exception of the ruling on competence of this Court and the constitutional motion,” and it ordered that the proceeding be returned to the Second Criminal, Drug Trafficking and Environmental Crimes Court of First Instance;

134.61. the private accuser and the Public Prosecutor’s Office filed applications for reconsideration against this May 29, 2001 ruling of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court;

134.62. on May 30, 2001, Lucrecia Hernández Mack stated under oath that at the January 27, 1999 hearing –through her attorney- she decided to desist from her civil claim as set forth in Articles 127 and 338 of the Criminal Procedures Code. Therefore, “with this attitude she abandoned her right to compensation for damages as ‘partie civile’ in this case;” furthermore, she stated that “when it issued the order for the trial to commence without ruling on her status as a ‘partie civile,’ the body in charge of controlling the investigation did not violate any of her individual or procedural rights;”

134.63. on July 5, 2001, the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court admitted the applications for reconsideration filed (supra para. 134.61); it annulled the May 29, 2001 ruling; and it ordered “continuation of the processing of the instant case, from the state of the proceedings at the time the challenged ruling was issued.” Finally, it declared that Lucrecia Hernández Mack had desisted from her claim;

134.64. on July 23, 2001, Juan Guillermo Oliva Carrera filed an amparo remedy against the July 5, 2001 ruling of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court, before the First Chamber of the Court of Appeals, acting as an Amparo Court. On July 30, the Chamber found it inadmissible with respect to granting provisional amparo or stay; on September 13, 2001, the Constitutional Court confirmed this ruling with respect to the provisional amparo;

134.65. on September 17, 2001, defendant Oliva Carrera filed another amparo remedy before the First Chamber of the Court of Appeals, Acting as an Amparo Court, against the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court because in its July 13, 2001 ruling this Court had decided to admit the evidence offered by the Public Prosecutor’s Office and the private accuser. The Chamber admitted said remedy for processing, and in its September 21, 2001 ruling it granted the provisional stay, temporarily suspending the July 13, 2001 ruling of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court;

134.66. on October 3, 2001, both the regular Judges and the staff of the First Chamber of the Court of Appeals declined to continue hearing all the amparo remedies filed in this Chamber in which Helen Mack Chang intervened, “to avoid continued questioning of [the] impartiality” of the Court;

134.67. on October 4, 2001, the Constitutional Court designated the Second Chamber of the Court of Appeals to “process, hear, and decide –in its current state- the amparo remedy” filed by Juan Guillermo Oliva Carrera against the July 13, 2001 ruling of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court;

134.68. on October 29, 2001, the Second Chamber of the Court of Appeals, acting as an Amparo Court, decided to annul the provisional amparo ordered on September 21, 2001, as it deemed that the circumstances that made it be in order had changed. On November 25, 2001, defendant Oliva Carrera filed an appeal before the Second Chamber of the Court of Appeals against its October 29, 2001 ruling;

134.69. on February 25, 2002, the Second Chamber of the Court of Appeals, acting as an Amparo Court, found the amparo remedy filed by defendant Oliva Carrera against the July 5, 2001 ruling (supra para. 134.64) of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court inadmissible. It also ordered the defendant to pay the legal costs and fined his attorney five hundred quetzales. On March 27, 2002, defendant Oliva Carrera filed an appeal against said ruling of February 25, 2002, before the Second Chamber of the Court of Appeals, acting as an Amparo Court;

134.70. on June 30, 2002, while his appeal was pending, defendant Oliva Carrera asked the Constitutional Court to order a temporary stay of the June 11, 2002 ruling of the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court, in which it set a new hearing for the oral debate to commence;

134.71. on September 11, 2002, defendant Oliva Carrera asked the Constitutional Court to discontinue the appeal that he had filed against the February 25, 2002 ruling of the Second Chamber of the Court of Appeals, acting as an Amparo Court. On September 23, 2002, the Constitutional Court approved the discontinuance of the appeal filed by defendant Oliva Carrera;

Other judicial actions during the period from September 2001 to December 2002

134.72. during the period from September 2001 to December 2002, the private accuser and the alleged accessories filed numerous additional objections, amparo remedies, appeals, applications for reconsideration, and constitutional motions;

Acquittal of the alleged accessories

134.73. on October 3, 2002, the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court acquitted Edgar Augusto Godoy Gaitán and Juan Guillermo Oliva Carrera and cleared them of all charges regarding the crime of murder, and found Juan Valencia Osorio responsible as perpetrator of the crime of murder against the life and physical integrity of Myrna Mack Chang, sentencing him to 30 incommutable years in prison. The Court stated that it did not rule on civil responsibilities because they were not requested on time and in the appropriate manner;

134.74. on October 15 and 16, 2002, Juan Valencia Osorio, the Public Prosecutor’s Office and the private accuser filed special appeals against the October 3, 2002 judgment issued by the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court;

134.75. on May 7, 2003, the Fourth Chamber of the Court of Appeals admitted the special appeal regarding merits filed by Juan Valencia Osorio; it found the special appeal regarding formal aspects filed by Valencia Osorio inadmissible; it decided not to admit the special appeal regarding merits filed by the Public Prosecutor’s Office and not to admit the special appeal regarding merits filed by Helen Mack Chang. Finally, deciding the case definitively, the Fourth Chamber acquitted Valencia Osorio, clearing him of all charges. It ordered the immediate release of defendants Godoy Gaitán, Valencia Osorio, and Oliva Carrera;

134.76. on May 28, 2003, the private accuser and the Public Prosecutor’s Office filed appeals for review before the Supreme Court of Justice, Criminal Chamber, for reasons pertaining to the merits and to formal aspects, against the May 7, 2003 judgment issued by the Fourth Chamber of the Court of Appeals. On June 3, 2003, said Court decided to formally admit these appeals for review;

134.77. at the time of the instant Judgment, the Court has not received any information regarding the outcome of said remedies;

Other remedies filed by the alleged accessories

a) with respect to the “Ley de Reconciliación Nacional”

i. the first request

134.78. on January 3, 1997, the defendants requested the benefit of extinguishment of criminal responsibility pursuant to the provisions of the “Ley de Reconciliación Nacional” or national reconciliation law, arguing that despite their being innocent of the charges against them, the murder of Myrna Mack Chang was a political crime and therefore they are entitled to the benefits set forth in said law. This request gave rise to a stay of the proceedings, pursuant to the provisions of Article 136 of the law on the judiciary body or “Ley del Organismo Judicial”;
134.79. on February 6, 1997, the First Criminal Trial Court of First Instance decided not to grant the benefit because it was inadmissible, as the crime of murder was not covered by that law. On February 10, 1997, the defendants filed an appeal against said ruling before the Tenth Chamber of the Court of Appeals;

134.80. the Special Prosecutor filed an incidental plea regarding lack of competence, arguing that the Tenth Chamber was not competent to hear the proceeding. On March 7, 1997, the Tenth Chamber of the Court of Appeals disqualified itself from hearing the appeal for lack of competence, as according to the National Reconciliation Law the Supreme Court of Justice had the exclusive authority to hear appeals regarding this matter. The defendants filed an appeal for annulment against said ruling;

134.81. on March 17, 1997, the Tenth Chamber of the Court of Appeals found the appeal for annulment inadmissible, as it deemed that the right to fair trial had not been breached and because it was not the effective means to decree the legal ineffectiveness of the ruling subject to annulment. On April 7, 1997 the defendants filed an amparo remedy before the Supreme Court of Justice against this ruling of the Tenth Chamber of the Court of Appeals. On October 17, 1997, the Supreme Court of Justice rejected this remedy as it deemed it notoriously inadmissible;

134.82. on the other hand, parallel to the processing of the aforementioned remedies, on April 7, 1997 the accused filed an amparo remedy before the Fourth Chamber of the Court of Appeals against the February 6, 1997 ruling of the First Criminal Trial Court of First Instance that did not allow them to avail themselves of the benefits set forth in the National Reconciliation Law, and they requested that said ruling be annulled. On May 2, 1997, the Fourth Chamber of the Court of Appeals found the amparo remedy inadmissible because it was time-barred. On May 8, 1997, the defendants filed an appeal before the Constitutional Court and on September 16, 1997, this court found it to be inadmissible;

ii. the second request

134.83. on May 9, 1997, while the amparo remedies filed by the defendants were pending, they filed a new request before the Third Chamber of the Court of Appeals to avail themselves of the benefits of the National Reconciliation Law. The defendants based their request on the argument that this chamber was competent to hear the matter as the Supreme Court of Justice had issued a ruling that modified the territorial competence of the courts. On September 5, 1997, the Third Chamber of the Court of Appeals found that applying the National reconciliation law to the defendants was inadmissible;

134.84. on October 22, 1997, the Supreme Court of Justice upheld the judgment of the Third Chamber and therefore denied the request for extinguishment of criminal responsibility. On November 25, 1997, the defendants filed an amparo remedy before the Constitutional Court against that ruling, and it was accepted for processing by that court on November 26, 1997. On March 31, 1998, the Constitutional Court rejected the amparo remedy requested;

b) with respect to Decree 41-96

134.85. on October 18, 2000, the defendants filed a constitutional motion against Decree 41-96 (supra para. 134.33); on October 29, 2000, the Third Criminal Trial Court, acting as a “Constitutional Court,” rejected the remedy filed and fined the defense counsel who submitted it. On October 31, 2000, the defendants filed an appeal against the ruling of the Third Court, for which reason the case file was forwarded to the Constitutional Court, which is the competent body of last resort to hear this type of appeals. On November 18, 2000, the Constitutional Court heard the case, as it was expedited for a ruling within six days, pursuant to Article 130 of the Law on Amparo, Habeas Corpus and Constitutionality. On December 18, 2000, the private accuser filed a request before the Constitutional Court for it to issue the respective ruling. On March 15, 2001, the Constitutional Court upheld the ruling of the Court rejecting the appeal filed by the defendants, stating that the Criminal Procedures Code would be applied to common crimes committed by the military and that they would be tried by regular Courts;

Obstructions to justice by State bodies

The police investigation

134.86. on September 11, 1990, the Homicide Section of the Criminological Investigations Department of the National Police began its investigations on the murder of Myrna Mack Chang. Said investigations suffered numerous irregularities and demonstrated lack of will to pursue an adequate investigation, as the police did not adequately protect the scene of the occurrence, nor did they take fingerprints of the victim arguing that it had rained, even though the meteorological report for that day states that it did not rain; they did not take prints that might be found in the vehicle or blood samples; they cleaned Myrna Mack Chang’s fingernails and discarded the content of the scrapings “because the samples were too small” and therefore did not conduct the laboratory analysis; her clothes were not examined; and the set of pictures of the wounds is incomplete because, according to their statement, “the camera or flash was damaged;”

134.87. José Mérida Escobar and Julio Pérez Ixcajop, National Police investigators assigned to investigate the murder, submitted a report on September 29, 1990, in which they concluded that Myrna Mack Chang had been murdered for political reasons. They also mentioned Noel de Jesús Beteta Álvarez, a sergeant major in the Army who was a member of the Presidential Security Department of the Presidential General Staff, as a suspect of the murder. Furthermore, they stated that State security officers had previously kept watch on Myrna Mack Chang. This report was not submitted immediately by the National Police to the competent court, but rather several months later;

134.88. carrying out orders of Colonel Julio Caballeros, then the Director of the National Police, the previous report was substituted by another, briefer report dated November 4, 1990, which was forwarded to the courts. This report stated that the motivation of the crime could have been robbery;

134.89. several months later, in April or May, 1991, the new Director of the National Police supplied a copy of the first police report prepared by José Mérida Escobar and Julio Pérez Ixcajop to the Head of the Public Prosecutor’s Office, who in June of that same year included it in the court file. On June 26, 1991, investigator Mérida Escobar testified before the court and ratified his September 29, 1990 report;
Lack of cooperation by the Ministry of National Defense and the Presidential General Staff

134.90. The Public Prosecutor’s Office and the private accuser have requested, through the judiciary, specific documents and information from the Ministry of National Defense and the Presidential General Staff with the aim of adding evidence to the judicial proceeding. Said bodies have systematically refused to provide certain information requested by the court authorities or have provided only part of the information required, arguing that the documents they do not supply deal with natural security matters, and that they constitute confidential information pursuant to Article 30 of the Political Constitution of Guatemala. The Presidential General Staff and the Ministry of National Defense have also forwarded altered documents to the authorities in charge of the investigation for the murder of Myrna Mack Chang;

Lack of cooperation by the judiciary bodies

134.91. on April 30, 1996, the special civil prosecutor, appointed to conduct the investigation under the provisions of the new Criminal Procedures Code, asked the Military Court of First Instance of the Department of Guatemala for production of evidence to ensure its availability for subsequent inclusion into the proceedings, with respect to the testimony of Virgilio Rodríguez Santana, Rember Larios Tobar, Julio Pérez Ixcajop, Juan Marroquín Tejeda, and José Tejeda Hernández, who had left Guatemala to Canada due to threats and intimidation (infra paras. 134.97 to 134.99). On July 22, 1996, the private accuser requested that the procedural step to be taken in Canada be recognized and accredited;

134.92. on February 24, 1998, the private accuser asked the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance to continue the process of production of the evidence requested from the Military Judge in 1996 with respect to the testimony that, by means of rogatory letters to the respective judicial authorities, the individuals exiled in Canada due to the threats they received should render. On March 12 of that same year the private accuser withdrew this request. Finally, the private accuser had to take steps on her own to bring some of the witnesses to Guatemala to render their testimony;

134.93. on March 25, 1998, the Special Prosecutor asked the First Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, pursuant to Article 244 of the Criminal Procedures Code – the rules authorizing the courts to evaluate secrecy or privacy of documents- to order the Ministry of National Defense to turn over documents pertaining to the functioning and structure of the Presidential General Staff, which had been denied based on the argument that they were under official secret, or that they had been supplied in an imprecise manner or merely transcribing literally the content of the respective provisions. The Public Prosecutor’s Office also requested that, in case of non-compliance with this request, the person in charge of supplying the information that would be submitted to the criminal proceedings be warned that he or she might be found to be in contempt. The Court ruled on this request on May 14, 1998, setting an eight-day term for the Ministry of National Defense to supply the information requested;

134.94. on June 11, 1998, not having received a satisfactory response from the Ministry of National Defense or other documents requested from the Criminal, Drug Trafficking and Environmental Crimes Court of First Instance, the private accuser filed a formal complaint before the Office of the General Supervisor of Courts due to the patently irregular processing of the case by this Judge. On June 22 of that same year the Office of the General Supervisor of Courts submitted its report to the Supreme Court. On July 15, the claimant submitted a brief to the President of the Supreme Court of Justice reiterating and expanding upon the ideas stated before the Office of the General Supervisor of Courts. On October 6, 1998, the private accuser was notified of the rejection of the complaint before the Office of the General Supervisor of Courts because it was deemed inadmissible;

Murder of a policeman, threats against and exile of witnesses, policemen, judges, prosecutors, and other legal operators of the judiciary

134.95. José Mérida Escobar and Julio Pérez Ixcajop, in charge of the investigation in the Myrna Mack Chang case, were followed and directly intimidated by staff of the “Archivo,” who told them that they should not continue the investigation;

134.96. on August 5, 1991, after ratifying before the courts his September 29, 1990 report, José Mérida Escobar was murdered by unknown persons using a firearm, close to the headquarters of the National Police, due to his investigations in the Myrna Mack Chang case;

134.97. As a consequence of the threats he had been receiving due to his investigations in the Myrna Mack Chang case and of the murder of José Mérida Escobar, Julio Pérez Ixcajop left Guatemala in October, 1991, and went into exile in Canada;

134.98. As a consequence of the threats he was receiving, Rember Larios Tobar, then the Head of the Criminological Investigations Department of the National Police (DIC), left Guatemala in 1992 and went into exile in Canada;

134.99. José Tejeda Hernández and Juan Marroquín Tejeda – the only two witnesses of the murder – and Virgilio Rodríguez Santana, a newspaper salesman at the time of the facts and a witness to the surveillance on Myrna Mack Chang, also live in exile in Canada as a consequence of the threats and acts of intimidation that they suffered at the time;

134.100. members of the Public Prosecutor’s Office and judges who were in charge of the case were also threatened and harassed. Henry Monroy Andrino, the trial Judge who issued the order for the trial to commence against those accused as accessories (supra para. 134.49), suffered threats and acts of intimidation. The “Secretary General of the Judiciary Body,” specifically, advised him not to issue a decision against the military, and this was one of the various circumstances that led him to resign the judgeship and seek exile in Canada;

Threats to the next of kin of Myrna Mack Chang, members of the Myrna Mack Foundation and AVANCSO staff

134.101. Helen Mack Chang as well as other members of the Mack Chang family have received threatening phone calls and have been followed and intimidated

134.102. staff members of the Mack Foundation, advisors in the case and AVANCSO staff have suffered intimidation and threats;

Specific facts pertaining to the next of kin of Myrna Mack Chang

134.103. the next of kin of Myrna Mack Chang are the following persons: Lucrecia Hernández Mack, daughter; Yam Mack Choy, the father, deceased on April 24, 1999; Zoila Chang Lau, the mother; Helen Mack Chang, sister; Marco Mack Chang, brother; Freddy Mack Chang, brother; Vivian Mack Chang, sister; and Ronald Chang Apuy, cousin;
134.104. the next of kin of Myrna Mack Chang have suffered pecuniary and non-pecuniary damage due to her death, due to the difficulties in obtaining justice, and due to harassment by State authorities – all of which has affected their physical and psychological health; it has had an impact on their social and work relations; it has altered the dynamics of the Mack Chang family and, in some cases, has placed the life and personal integrity of some of its members at grave risk. Addressing said damage has involved expenses incurred by the family of the victim;

134.105. partial impunity in this case continues to cause suffering to the next of kin of Myrna Mack Chang;

134.106. Helen Mack Chang founded the Myrna Mack Foundation, which has represented the next of kin of the victim, with the main purpose of seeking justice in the instant case domestically and internationally, and this has involved a number of expenses;

134.107. the next of kin of the victim have been represented before the Commission and the Court by Helen Mack Chang, who in turn granted a power of attorney for them to be represented before the Court by Alberto Bovino; Jeff Clark and Robert O. Varenik, of the Lawyers Committee for Human Rights; Viviana Krsticevic and Roxanna Altholz, of CEJIL; Elijah Barret Prettyman Jr., Lyndon Tretter, Taylor Lee Burke, Shannon Tovan MacDaniel and David Kassebaum of the United States law firm Hogan & Hartson. Subsequently, Helen Mack Chang rescinded the power of attorney granted to Taylor Lee Burke and Jeff Clark. Said persons and organizations have incurred a number of expenses under domestic jurisdiction and before the bodies of the inter-American system, in the domestic proceedings and in the instant proceedings.

IX
VIOLATION OF ARTICLES 4 AND 1(1)
(RIGHT TO LIFE AND
OBLIGATION TO RESPECT RIGHTS)

Pleadings of the Commission

135. In the application, the Commission asked the Court to find that the State is responsible for the arbitrary deprivation of the right to life of Myrna Mack Chang and, therefore, responsible for violation of Article 4 of the American Convention based on the following:

a) the extra-legal execution of Myrna Mack Chang is not the consequence of an isolated fact but rather is a paradigmatic example of the selective practice of extra-judicial executions prevailing in Guatemala at the time of the facts;

b) Myrna Mack Chang was extra-legally executed by Noel de Jesús Beteta Álvarez, Sergeant Major Specialist of the group of the security section of the Presidential General Staff and by another individual as yet unknown, who followed instructions of the high command of the Presidential General Staff to murder her. Furthermore, the motivation for the murder was political, due to the professional activities carried out by Myrna Mack Chang in connection with the internally displaced population. Likewise, the modus operandi to extra-legally execute Myrna Mack Chang was that used by the Guatemalan intelligence services and, specifically, by the Presidential General Staff, at the time of the facts; and

c) the extra-legal execution of Myrna Mack Chang was the consequence of a carefully prepared plan developed by the high command of the Presidential General Staff, which consisted of singling-out the victim, keeping watch on her, executing her, and covering up the direct perpetrators and the accessories insofar as possible and obstructing the administration of justice, whether directly or through subterraneous influences.

Pleadings of the representatives of the next of kin of the victim

136. The representatives of the next of kin of the victim asked the Court to find that the State is responsible for the arbitrary deprivation of the right to life of Myrna Mack Chang and, therefore, responsible for violation of Article 4 of the American Convention. In addition to reiterating various pleadings of the Commission, said representatives pointed out that:

a) planning and execution of the plan to murder Myrna Mack Chang was for political motives linked to her professional activity and can be ascribed to members of the Presidential General Staff of Guatemala, which coincides precisely with the patterns of selective extra-legal executions at the time;

b) Myrna Mack Chang was not simply an anthropologist, and she was not murdered only for practicing her profession. She was targeted because she represented the expression and dissemination of the truth, especially regarding the repression campaigns of the Army in the rural sectors, the aim of which was to not leave evidence regarding those military actions, to avoid opposition and to avoid attracting international scrutiny;

c) the statements of Noel de Jesús Beteta Álvarez, one of the direct perpetrators of the facts, the testimony of individuals who refer to the surveillance and execution of the victim, partial acknowledgment of responsibility by the State, public or judicial statements of high officials of the Guatemalan Government, the CEH Report, the REMHI Report, and the patterns of political repression at the time of the facts, provide conclusive grounds to affirm the institutional responsibility of the security forces the Presidential General Staff in the execution of the victim; and

d) the manner in which Noel de Jesús Beteta Álvarez and the agents of the Presidential General Staff involved in the execution acted could not have occurred without the intervention and knowledge of the commanding officers at the institution. Various items of evidence in the case file point to the same conclusion: “the murder of Myrna Mack was committed by an agent of the State in his capacity as an active member of the Presidential General Staff, carrying out orders received from other officers of this advisory military body.”

Pleadings of the State

137. In accordance with what the Court set forth in paragraphs 94 and 111, the State acquiesced unconditionally with respect to the facts described by the Commission in its application and the claim that the Court find that Article 4 of the Convention was breached.

Considerations of the Court

138. Article 4(1) of the American Convention provides that:

[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

139. The Court deems that, pursuant to what was established in the chapter on proven facts, the State is responsible for the extra-legal execution of Myrna Mack Chang committed through actions of its agents, carrying out orders issued by the high command of the Presidential General Staff, which constitutes a violation of the right to life. This circumstance was worsened because at the time of the facts there was in Guatemala a pattern of selective extra-legal executions fostered by the State, which was directed against those individuals who were considered “internal enemies.” Furthermore, since then and still today, there have not been effective judicial mechanisms to investigate the human rights violations nor to punish those responsible, all of which gives rise to an aggravated international responsibility of the respondent State.

140. The death of Myrna Mack Chang was the result of a covert military intelligence operation carried out by the Presidential General Staff and tolerated by various authorities and institutions (supra para. 134.6). This military intelligence operation had three phases.

141. The first phase was to single-out the victim in view of her professional activity, an activity that bothered various authorities and institutions in Guatemala (supra paras. 134.7, 134.10 and 134.11). In this regard, en 1992, the Guatemalan Human Rights Ombudsman, Ramiro de León Carpio, based on the investigation of the instant case, stated that:

[t]he topics of the research projects carried out by anthropologist Myrna Mack Chang are still considered to be high risk ones, because they affect Government policies and their conclusions may not be in accordance with externally-oriented strategies.
[…] After an in-depth analysis of the above, one can infer, based on presumptions, that the violation to the right to life and to the physical integrity of Myrna Elizabeth Mack Chang was committed because of the development of her social investigation activities, because they were considered destabilizing vis-à-vis the order pre-established by the Government, which was perceived by the Intelligence Section of the National Army, who ordered and carried out this extra-legal killing. This case constitutes a typical politically-motivated killing.

142. Several of the expert witnesses and witnesses who appeared before the Court also stated that Myrna Mack Chang was singled-out as a “target” or an “internal enemy” due to the activities she carried out. In this regard, expert witness Mónica Pinto (supra para. 127.i), in her expert opinion before the Court, stated that:

Myrna Mack was executed in 1990. I do not recall the exact date. It was not the only execution in 1990, there were others. And in reality, summary executions in Guatemala have had various profiles over time. After a stage of massive, collective summary executions that would be part of various policies such as the “Scorched Earth” policy or some others, came the more selective summary executions. Myrna Mack was working in a sensitive area, perhaps for political considerations, and on the other hand, the way she was executed determined that it was not a traditional murder. Myrna Mack suffered 27 knife wounds.

[…]

[M]y mandate does not extend to the time of the facts in which Myrna Mack lost her life. The interpretation of the four reports that I submitted to the Commission is that basically the whole treatment of the issue of refugees by a broad segment of power in Guatemala is very close to considering that refuge was practically synonymous to membership in the guerrilla forces. Myrna Mack was working on the topic of refugees and was working on the causes, and at a given moment Myrna Mack became a dangerous element. How intense was this danger? I do not know whether this is precisely the interpretation that might have made the authorities decide that Myrna Mack should be eliminated. Yet obviously all the circumstances were in place at the time in which I drafted the first of the reports to reach the conclusion that the way in which Myrna Mack had lost her life was not due to a mere homicide, that it was not due to any matter of passion, but rather that it stemmed from a policy that had decided, in a premeditated manner, that it was necessary to get rid of Myrna Mack.

143. Witness Lucrecia Hernández Mack, daughter de the victim (supra para. 27.c), likewise stated before the Court:

[m]y mother was killed for political reasons. At the time she was conducting, and had already conducted, research studies on the internally displaced population in Guatemala. In other words, a civilian population that had been harassed and persecuted by the Guatemalan Army. And she was hearing the testimony of these persons and the institutional policies of the State regarding [...] these persons. She was letting people know, and had published a book in which she clearly stated the existence of these populations and also how the Army had been massacring within the country and had been violating human rights within the country. This was obviously not convenient for the Army and therefore they saw my mother as a threat and she then became a target and that is why they murdered her. It was for political reasons. And well and this is something that they denied from the start, that it could be for political reasons.

144. In this regard, the CEH Report concluded, with respect to Myrna Mack Chang case, that it:

deems that this human rights violation is an example and consequence of the harmful discourse that, during the years of internal armed confrontation, identified the internally displaced population and the intellectuals who studied their problems as enemies of the State. The CEH deems that those who decided to murder Myrna Mack sought, based an erroneous intelligence assessment of the role of this professional and her anthropological activity, to send an intimidating message, in general, to the communities of displaced persons and, specifically, to the institutions and persons who were concerned about their living conditions.

145. The second phase of the military intelligence operation consisted of keeping watch on, following, and extra-legally executing the victims. This was done by a group of specialists of the Presidential General Staff (supra paras. 134.3, 134.4, 134.6, 134.10 and 134.11). The execution of Myrna Mack Chang was not an isolated act carried out by the Presidential General Staff specialist Noel de Jesús Beteta Alvarez, but rather the result of a careful operation developed by the high command of that body, directly executed by Sergeant Beteta Alvarez (supra paras. 134.5 and 134.22). In this regard, Noel de Jesús Beteta Alvarez stated, with respect to the modus operandi of the Presidential General Staff, that:

[t]his type of murder missions is not often, it depends on the situation, but at that time there was a lot of work. I think that there were perhaps some thirty murder missions, only for me. This is aside from the rest of the group, so the amount is twenty by thirty. Some six hundred a year only in that office (the EMP). In Myrna’s case they passed me the file, I analyzed it and began the surveillance. This type of missions last no more than fifteen days from when we single the person out until the time of the execution. We do not report until the mission has been completed. Once that mission was completed, I shredded the file, I burned it, and I did not speak about the matter any more to anyone at the office. All my reports to Juan Valencia Osorio, my supervisor, were verbal. It included the way to eliminate her so that people thought it was a common crime. Then they tried to eliminate me physically and armed people even kept watch on the house and came asking for me. I am sure that Juan Valencia Osorio ordered that I be killed. That is why I left the country. Once I was a prisoner they did not talk to me nor send me any messages. When my mother said that they were coming to the house I understood the message.

146. In this regard, the CEH Report pointed out that:

[m]ost of the human rights violations took place with knowledge by or under orders from the highest authorities of the State. Evidence from various sources (statements of former members of the Armed Forces, declassified documentation, data from various organizations, testimony of Guatemalan eminent persons) all points to the fact that the intelligence services of the Army, especially the G-2 and the Presidential General Staff, obtained information on all types of individuals and civil organizations, evaluated their behavior in their respective spheres of activity, prepared lists of those to be repressed due to their allegedly subversive nature, and then, according to each case, captured, interrogated and tortured them, made them disappear, or executed them.

[…T]he responsibilities for many of these violations include, in the line of military command and in that of political and administrative responsibility, the highest levels of the Army and of successive Governments.

[…T]he excuse that the lower-ranking officers acted with a great deal of autonomy and decentralization, which would explain “excesses” and “mistakes” that were not ordered by the commanding officers, is a groundless argument according to the investigation conducted by the CEH. The notorious fact that no commander, officer or intermediate authority in the Army or the security forces of the State has been prosecuted or convicted for his acts in violation of human rights over so many years strengthens the evidence that most said violations resulted from an institutional policy that ensured an impenetrable impunity, which continued throughout the period investigated by the CEH.

147. The REMHI Report, in turn, in fitting with the statements by Noel de Jesús Beteta Alvarez regarding the modus operandi, in connection with the extra-legal executions in Guatemala, found that:

[t]he commandoes that carried them out were formed by groups of five to eight individuals, including the executors, the drivers, and those keeping watch. As part of covert operations, there were no written orders, identification of the members of the commando was through pseudonyms, and the vehicles and weapons used did not have registration numbers that could link to the origin of the operation.

In general, these extra-legal executions were decisions of the commander of the respective intelligence body in the area, although certain cases were consulted beforehand with the highest levels of military intelligence. In some cases in which trouble was foreseen, the decisions were often coordinated with the heads of other security forces, advising even the directors of the National Police, for them to previously clean the area and not interfere when the commando left it.

Ordinarily the executions did not include prior warnings to the victim, although there was a discrete plan to follow them for eight and up to fifteen days. The victim was followed to establish customary reference points regarding his or her movements, such as place of residence and of work.

[...] Most of the times the orders were direct and there was no discussion, and a brief report was subsequently required regarding the outcome, as well as destruction of evidence such as reports, and so forth. The system included following the person for several days or weeks to establish his or her movements. In general, the way the person was killed, the day and how they would flee were decided by the specialist in charge of the kidnapping or murder, taking into account that it should look like a common crime or make their identification difficult (for example, in darkness), at an appropriate time (without witnesses) and, if applicable, to ensure that the person would not be left wounded. This was the system in many murders of leaders or intellectuals, as in the case of Myrna Mack.
[…] Very often the intelligence actions continued after the crime, leading to destruction or alteration of evidence, threats against witnesses and members of the family, and so forth, obstructing any investigation, to ensure the impunity of their actions.”

148. In this regard, the CEH reached the conclusion that:

taking into account all the information gathered, the CEH is convinced that the murder of Myrna Elizabeth Mack Chang was committed by an agent of the State in his capacity as an active member of the Presidential General Staff (EMP), carrying out orders received from other officers of this military advisory body, and her death is a grave violation of the right to life.

149. The third phase of the military intelligence operation consisted of covering up, insofar as possible, all the direct perpetrators and accessories of the operation, so as to ensure their impunity in the instant case to be able to continue acting in a clandestine manner, without any control, and to continue performing illegal acts (supra paras. 134.11 to 134.13). In this regard, the State itself acknowledged that “military influence might be a factor affecting the difficulties and irregularities in the proceeding.” Likewise, the CEH pointed out that “[m]ost of the arbitrary executions committed by agents of the State were complemented by other acts and maneuvers directed at avoiding or obstructing investigation by the judges, thus intensifying the climate of impunity.”

150. The CEH also stated in its final conclusions that:

it has established that in Guatemala the military intelligence services conducted unconventional and irregular operations outside any legal order or framework. Their illegal operations were clandestine, both in their preparation and in their execution. The purpose of these missions was to ensure secrecy of a task so that it would not be possible to identify the accessories and direct perpetrators of the facts, to exonerate the agents of the State from all responsibility, and to thus ensure the ineffectiveness of any judicial or police investigation.

151. Therefore, and pursuant to the proven facts, the Court deems it proven that at the time of the facts there was in Guatemala a pattern of selective extra-legal executions fostered and tolerated by the State itself (supra paras. 134.10 and 134.11). In this regard, the CEG stated in its final conclusions, with respect to the extra-legal executions, that:

the State of Guatemala repeatedly and systematically committed violations of the right to life that in this Report are referred to as arbitrary executions, aggravated in many cases by resorting to extreme mercilessness, as happened for example in situations in which the bodies were abandoned with obvious signs of torture, multiple mutilations, bullet wounds, or burns. The agents of this type of violations were generally Army officers, specialists, and troops, death squads operating under the protection of the authorities or constituted by their agents [...].

152. On this matter, the Court has pointed out that when there is a pattern of extra-legal executions fostered or tolerated by the State, this generates an environment that is incompatible with effective protection of the right to life . This Court has established that the right to life plays a fundamental role in the American Convention because it is a prior condition for realization of the other rights. When the right to life is not respected, all the other rights lack meaning. The States have the obligation to ensure the creation of such conditions as may be required to avoid violations to this inalienable right and, specifically, the duty of avoiding attempts against it by the agents of the State.

153. Compliance with Article 4 of the American Convention, in combination with Article 1(1) of that same Convention, requires not only that no person be arbitrarily deprived of his or her life (negative obligation), but also that the States adopt all appropriate measures to protect and preserve the right to life (positive obligation), under their duty to ensure full and free exercise of the rights by all persons under their jurisdiction. This active protection of the right to life by the State involves not only its legislators, but all State institutions, and those who must protect security, be these its police forces or its armed forces. Therefore, the States must adopt all necessary measures, not only to prevent, try, and punish deprivation of life as a consequence of criminal acts, in general, but also to prevent arbitrary executions by its own security agents.

154. In the sub judice, case, it has been established that the State itself fostered a practice of selective summary executions (supra paras. 134.10 and 134.11), a situation that is totally contrary to the duty of the State to respect and ensure the right to life.

155. The Court also deems it proven that at the time of the facts in Guatemala there were no effective mechanisms to investigate violations of the right to life, for which reason there was a climate of impunity regarding human rights violations (supra para. 134.13). Likewise, the CEH stated in its final conclusions:

[t]he weakness of the justice system, absent in vast areas of the country before the armed conflict, became more acute when the judiciary bent to the requirements imposed by the prevailing model of national security. The CEH concludes that, by tolerating or directly participating in the impunity that provided material coverage for the very basic violations of human rights, the bodies of the justice system became ineffective in one of their fundamental functions of protection of the individual vis-à-vis the State, and they lost all credibility as guarantors of legality in force. They allowed impunity to become one of the most important mechanisms to generate and maintain the climate of terror.

156. In cases of extra-legal executions, it is essential for the States to effectively investigate deprivation of the right to life and to punish all those responsible, especially when State agents are involved, as not doing so would create, within the environment of impunity, conditions for this type of facts to occur again, which is contrary to the duty to respect and ensure the right to life .

157. In this regard, safeguarding the right to life requires conducting an effective official investigation when there are persons who lost their life as a result of the use of force by agents of the State. In this connection, the European Court of Human Rights has stated that:

[the] general legal prohibition of arbitrary killing by the agents of the State would be ineffective, in practice, if there existed no procedure for reviewing the lawfulness of the use of lethal force by State authorities. The obligation to protect the right to life under Article 2, read in conjunction with the State's general duty [...] to "secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention", requires by implication that there should be [an] effective official investigation when individuals have been killed as a result of the use of force.

158. Therefore, the Court concludes that the extra-legal execution of Myrna Mack Chang was the result of a covert military intelligence operation prepared by the high command of the Presidential General Staff carried out by its members within a pattern of selective extra-legal executions, in a climate of impunity, which was and has been tolerated by various State authorities and institutions, for which reason it finds that Guatemala has violated Article 4(1) of the American Convention, in combination with Article 1(1) of that same Convention, to the detriment of Myrna Mack Chang.

X
VIOLATION OF ARTICLES 8, 25 AND 1(1)
(RIGHT TO FAIR TRIAL, JUDICIAL PROTECTION
AND OBLIGATION TO RESPECT RIGHTS)

Pleadings of the Commission

159. In its application, the Commission asked the Court to find that there was a violation of Articles 8 and 25 of the American Convention to the detriment of the victim and her next of kin. In this regard, the Commission pointed out that:

a) the judicial proceeding that stemmed from the murder of Myrna Mack Chang is one of the clearest examples in recent Guatemalan history and of the limits of the scope of the willingness of the Guatemalan State to seriously and effectively investigate human rights violations, to try and to punish all those responsible, in this case including the accessories. This case exemplifies the limits of the cloak of impunity that exists in Guatemala and the price that those who attempt to challenge the limits of impunity or to completely lift its mantle must be willing to pay;

b) the consequences of challenging impunity have been: the murder of police investigator José Mérida Escobar, who reported that the killing of Myrna Mack Chang was due to a political matter and that a member of the Presidential General Staff was involved in the crime; demotion within the police force and subsequent exile due to threats and acts of intimidation against the other police investigator, José Pérez Ixcajop, who together with Mérida Escobar also stated that the murder of Myrna Mack Chang was a political crime and that there were security agents involved in it; exile of 4 witnesses due to the death threats and intimidations once the facts were make known; exile due to death threats and intimidation against the judge who ordered the trial to commence against the accessories of the murder; threats and acts of intimidation against judges and prosecutors who have tried to move the judicial proceeding forward; threats against and following of various legal advisors in this case, the sister of the victim, and members of the AVANCSO foundation;

c) the State did not allow Helen Mack Chang to have access to an effective legal remedy with guarantees of due process, to try and to punish all those responsible for the murder of Myrna Mack Chang. The Commission recognizes that in this case there have been some results and there has been partial impunity, as one of the direct perpetrators of the crime, Noel de Jesús Beteta Álvarez, has been tried and sentenced. However, it is the understanding of the Commission that, pursuant to Articles 1(1), 8 and 25 of the Convention, the State has the obligation to try and to punish all the direct perpetrators and accessories of the facts that breached the human rights. In this case, more than “twelve” years after the extra-legal execution of Myrna Mack Chang, only one of the direct perpetrators has been duly punished, and all the persons legally accused as accessories of the crime have been absolved, openly contradicting the evidence against them. The judicial proceeding against them has been delayed more than “twelve” years and, as the State itself has acknowledged, it has gone beyond reasonable terms pursuant to the Convention. The judicial authorities are responsible for this unjustifiable delay due to “an indifferent management of the proceeding that has allowed and processed frivolous remedies, not respecting procedural terms in attempting to detach themselves from the proceeding through alleged queries on competence.” The State has considerably exceeded the three criteria set forth by the Honorable Court to establish reasonable term, that is, the complexity of the case, the behavior of the authorities, and the behavior of the parties;

d) from the initial phase of the investigation, the judicial proceeding showed serious irregularities. Inadequate care of the Guatemalan authorities at the scene of the crime was made evident by the precarious gathering of physical evidence that made it impossible to establish the direct perpetrators of the crime by means of scientific evidence, for which reason the preliminary investigation was based on testimonial evidence;

e) a grave irregularity committed during the investigation of the facts was the modification of the police report prepared by the agents entrusted with investigating the murder. The September 29, 1990 report drafted by agent José Mérida Escobar, in which he reached the conclusion that the motive of the murder was political in nature and he named Noel de Jesús Beteta as one of the suspects of the crime, was kept secret by orders of the Director of the National Police and subsequently modified by means of a report submitted to the judicial authorities on November 4, 1990, stating that the motive was robbery and that there were no suspects of the crime;

f) the army, protecting itself behind military secret, has systematically refused to supply certain information requested by the judicial authorities, which demonstrates its unwillingness to cooperate in the investigations. The Ministry of National Defense has supplied only part of the information requested, arguing that the documents that have not been supplied address military or diplomatic matters of national security that are confidential information pursuant to Article 30 of the Political Constitution of Guatemala;

g) the Guatemalan courts have allowed abusive use of the amparo remedy. While the law authorizes the amparo remedy against court rulings, the interpretation of said possibility by the courts in this case has enabled the parties to submit amparo remedies that have caused unjustifiable delays and permanent discontinuity of the proceeding. From February, 1994, to the date of the application, “eleven” amparo remedies have been filed by the defendants. Their obvious inadmissibility, which should have led the judges to reject them in limine to avoid undue delays in the proceeding, is demonstrated by the fact that said amparo remedies have been rejected by the courts. Furthermore, the 11 amparo remedies and their respective appeals were decided by the courts outside the terms set forth in the law, and this has entailed three years and four months of paralysis of the proceeding due to said remedies. This demonstrates that the intervening judges have been partly responsible for the use of the amparo remedy in this case as a fourth instance, becoming a covert appeal and nullifying its objective and aim of being a simple, rapid, and effective remedy;

h) impunity that continues to exist in this case with respect to the accessories is because in Guatemala there are still many opportunities for the administration of justice to be subordinated to military interests, through what the Comisión para el Esclarecimiento Histórico de Guatemala has called “subterraneous mechanisms” of impunity. After acknowledging its responsibility for the murder of Myrna Mack Chang and the existence of a denial of justice in this case, the State has done nothing to correct the situation On the contrary, all it has done is to try to disregard said acknowledgment and to obstruct the judicial proceeding even more; and

i) on October 3, 2002, the Third Criminal, Drug Trafficking and Environmental Crimes Trial Court issued a judgment of first instance in which Juan Valencia Osorio was found criminally responsible as perpetrator of the crime of murder against Myrna Mack Chang, and defendants Edgar Augusto Godoy Gaitán and Juan Guillermo Oliva Carrera were acquitted and cleared of all charges. On May 7, 2003, the Fourth Appellate Chamber acquitted Juan Valencia Osorio and upheld the terms of the first instance ruling that acquitted the other defendants. This judgment attempts to ensure impunity of such a grave violation, based on a reinterpretation of the facts that have been duly proven in the case file and that were assessed at the appropriate time by a judge of first instance in accordance with national legislation. In the instant case, the Commission deems that the judicial actions of the Guatemalan authorities have been arbitrary, and therefore the Court has the authority to rule on the matter.

Pleadings of the representatives of the next of kin of the victim

160. The representatives of the next of kin of the victim asked the Court to find that the State had breached Articles 8 and 25 of the Convention and, in this regard, they stated that:

a) in this case there was a systematic obstruction of the investigations by the agents of the State to cover up the responsibilities of the agents of the Presidential General Staff who were involved in the extra-legal execution of the victim;

b) the first anomalies in the investigation occurred at the scene of the crime itself and during the initial stage of forensic investigation. The agents who intervened at the scene of the crime conducted a highly negligent and incompetent investigation, especially with respect to obtaining and securing evidence and processing of the scene of the crime. Furthermore, immediately after the fact, the military staff of the “Archivo” intervened to ensure that the investigation did not involve them. This caused irreparable damage to items that were crucial to establish the identity of all those responsible for the murder and for the investigation to move forward, and it entailed violations to the duty of due diligence of the State to conduct the investigation of the extra-legal execution of Myrna Mack Chang;

c) the highest authorities of the Presidential General Staff, from the start of the proceeding, forwarded “false documentary evidence” to the authorities in charge of investigating the murder. Thus, the records of the Medical Center and of the Presidential General Staff were intentionally altered and sent as if they contained truthful information to the State bodies entrusted with the investigation, and certain authorities made statements with the aim of denying that Noel de Jesús Beteta Álvarez was a member of the Presidential General Staff at the time of the murder and to cover up the extent of institutional participation of the latter.

d) there were acts of harassment against members of the administration of justice, witnesses, next of kin of the victim, and members of non-governmental organizations, which were characteristic traits of the proceeding against the accused for the murder of Myrna Mack Chang. Furthermore, the lack of effective control over the activities of the Presidential General Staff allowed the murder of police investigator José Mérida Escobar to be committed;

e) the Ministry of National Defense has systematically refused to supply information that is crucial to elucidate the facts. The bodies of the Guatemalan State did not respond to 64% of the judicial requests for information. On the other hand, even in some of the cases included in the 36% where the State replied, it is possible to affirm that it did not comply in good faith with the request for information;

f) in its reply to the Report of the Inter-American Commission, the State sought to elude all responsibility of State bodies other than the judiciary for obstructions and unwillingness to move forward with a serious and effective investigation of the case. Furthermore, the executive branch of government in Guatemala has resorted to the concept of “official secret” in face of requests by prosecutors and judges, with the aim of not supplying information that is significant to establish the truth, and this is one more example that the arguments invoked by the State are untenable;

g) another act of obstruction of the investigation was carried out by the judiciary itself, when the Third Criminal Trial Court established the guilt of one of the direct perpetrators of the murder, and at the same time ordered the proceeding closed with respect to Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, Juan Guillermo Oliva Carrera, Juan José Larios, Juan José del Cid Morales and the individual whose surname is Charchal, for lack of evidence. The Judge had no competence to close an investigation on the three military officers of the Presidential General Staff, since as members of the Army they could only be tried by military courts. For this reason, these persons never appeared in the proceeding against Noel de Jesús Beteta Álvarez as accused, their preliminary examination statement was never taken, and they were not prosecuted. Therefore, the court closed the investigation outside its sphere of competence and in an arbitrary manner. The private accuser had to litigate for over two years to attain annulment of the closing of an investigation that had not formally begun;

h) another obstacle in the way of the proceeding against those accused as accessories was the determination of which court would be competent. Rapid determination of competence is an indispensable condition to exercise the rights guaranteed by Articles 8(1) and 25(1) of the Convention. The only acceptable circumstance to tolerate a longer term to define competence of the intervening court was the legal modification that abolished the military courts where the proceeding had begun against the three accused. This discussion on competence caused the unnecessary intervention of several courts and forced the private accuser and the Public Prosecutor’s Office to have to answer arguments that sought to deflect the procedural activity regarding the investigation and that caused continuous paralysis of the proceeding, despite the fact that the remedies filed by the parties did not legally require a stay of the proceeding;

i) the accused Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and Juan Guillermo Oliva Carrera filed “eleven” amparo remedies, all of which were turned down. The ruling on each amparo took, on average, 6 or 7 months, and the legal term is thirty days. This adds up to 47 months, that is, a net excess of three years and four months of unjustified paralysis of the proceeding beyond the legal terms. In other words, the judicial authorities did not comply with the legal terms to rule and to notify the ruling, and in practice the amparo remedy constituted a mechanism that acted as a direct cause of denial and delay of justice, as it allowed and tolerated a discussion in four different instances. Despite the legal provisions in force, processing of the amparo remedy several times led, unnecessarily, to paralysis of the proceeding for unjustifiable periods; and

j) the State lacks the political will to prosecute, try, and punish the members of the Presidential General Staff responsible for the murder of Myrna Mack Chang. This attitude is clearly illustrated by the annulment ruling by the Fourth Chamber of the Court of Appeals. On May 7, 2003, said Chamber annulled the conviction against Juan Valencia Osorio, stating as only motive a non-existing contradiction in the first instance judgment, without substantiating its ruling in any way.

Pleadings of the State

161. As stated by the Court in paragraphs 94 and 111, the State acquiesced unconditionally to the facts described by the Commission in its application and to the request that the Court find that there was a violation of Articles 8 and 25 of the Convention.

Considerations of the Court

162. Article 8(1) of the American Convention sets forth:

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

163. Article 25 of the American Convention provides that:

1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
2. The States Parties undertake:

a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b. to develop the possibilities of judicial remedy; and

c. to ensure that the competent authorities shall enforce such remedies when granted.

164. In view of what the Court has deemed proven with respect to the right to fair trial and judicial protection, the analysis of Articles 8 and 25 will address the following topics: a) gathering of evidence at the scene of the crime; b) alteration and concealment of the report on the police investigation; c) manipulation of the evidence supplied by the Presidential General Staff and the Ministry of National Defense; d) official secret; e) murder of a police investigator; harassment and threats against legal operators, police investigators, members of the Myrna Mack Foundation and of AVANCSO and the next of kin of Myrna Mack Chang; f) lack of diligence of the judges in the criminal proceeding; and g) reasonable term.

165. Before discussing each of the aforementioned points, let us recall what the CEH stated regarding the Myrna Mack Chang case:

[…] this case clearly illustrates the grave flaws and shortcomings of actions by the courts, despite multiple and persistent procedural actions by the private prosecutor and private accuser. It also reveals the existence of subterraneous mechanisms of impunity that sabotage the criminal investigation and obstruct enforcement of the law, by altering the scene of the crime, obstructing the criminal investigation, implementing overt and covert intimidation plans against judges, witnesses, prosecutors and investigators –to the point of killing police investigator José Mérida- and official acts to cover up and arbitrarily invoke official secret.

But the case also reveals the possibilities that reopen when the next of kin of the victim, as Helen Mack did, resolutely exercise their right to judicial action and attempt to overcome the intimidations, the covering up of the human rights violations, and abusive resort to official secret.

a) Gathering of evidence at the scene of the crime

166. The Court has corroborated that once the body was found, the police abstained from adequately protecting the scene of the crime, cleaned the victim’s nails, and discarded the content of the scrapings, and alleged that it did not record or preserve the fingerprints because it had rained, despite the fact that the meteorological report stated that there had been no rainfall. Furthermore, the police did not take blood samples of the victim, for which reason the respective laboratory tests were not conducted, and her clothes were not examined and the victim’s wounds were not photographed completely (supra para. 134.86).

167. The investigative procedures that were omitted are key components for an appropriate development of the judicial investigation, especially in face of a fact that has cost a person’s life.

b) Altering and hiding the report of the police investigation

168. As was stated with respect to the proven facts, the police entrusted two of its officers, José Mérida Escobar and Julio Pérez Ixcajop, with investigating the death of Myrna Mack Chang. On September 29, 1990, said policemen submitted to the Director of the Guatemalan National Police, Colonel Julio Caballeros, the respective report, in which they reached the conclusion that Myrna Mack Chang had been murdered for political reasons and they even identified Noel de Jesús Beteta Álvarez, a specialist of the Presidential General Staff, as a suspect of the murder (supra para. 134.87).

169. The Court also has deemed it proven that, under orders from Colonel Julio Caballeros, then the Director of the National Police, the report prepared by José Mérida Escobar and Julio Pérez Ixcajop was substituted by another, more brief report dated November 4, 1990, which was forwarded to the courts. This report stated that the motive of the crime might have been robbery, and it identified no suspects (supra para. 134.88).

170. Likewise, the Court has deemed it proven that the new Director of the Police forwarded the September 29, 1990 report to the Public Prosecutor’s Office several months later, in April or May, 1991 (supra para. 134.89).

171. Likewise, Rember Larios Tobar, then the Head of the Criminological Investigations Department of the National Police of Guatemala (supra para. 127.e), stated before the Court that:

I assigned homicide investigator José Miguel Mérida because he was knowledgeable, well-trained, and experienced in homicide investigations [and] he chose the other investigator [...]Julio César Pérez Ixcajop; a report was prepared, dated February 29, 1990, and it was immediately submitted to the Director of the Police, colonel Julio Caballeros. [T]he report stated that based on the witnesses’ interviews, it had been established that there was a suspect by name Noel de Jesús Beteta and also that the motive of the killing might have been that she had published a book that talked about the institutional policies toward the internally displaced population in Guatemala, which at the time was considered a very sensitive topic in Guatemala.

[…]

I recall that there was a second report, and if I remember correctly it was dated November 4, 1990, and it was prepared under orders issued by the Director of the National Police who said that this report should be submitted and sent to the courts. I also recall that when the September 29, 1990 report was submitted the first time, he ordered that it be kept secret, that it not be sent to the court. He also warned us that our lives were at risk and that we should not let anyone else know about this report, for whatever reason, because our lives would be at risk. Then, for that reason, he ordered that the November 4, 1990 report be submitted to the courts.

172. This behavior of the person acting as the highest police authority, who at the time was a member of the army, of hiding and manipulating the official account of the investigation to the judicial authorities, demonstrates that there was an attempt to cover-up those responsible for the extra-legal execution of Myrna Mack Chang, and this constitutes an obstruction of justice and an inducement for those responsible of the facts to remain in a situation of impunity.

c) Manipulation of the evidence submitted by the Presidential General Staff and the Ministry of National Defense

173. The Court has deemed it proven that, in response to a request by the authorities in charge of the investigation, specifically of the Public Prosecutor’s Office, the Presidential General Staff and the Ministry of National Defense forwarded manipulated documents with the intention of concealing information that was important for elucidation of the facts. For example, the personal record of Noel de Jesús Beteta Álvarez, kept by the Presidential General Staff and the orders for deductions issued by the Military Medical Center from July 5 to September 18, 1990 (supra para. 134.90), stating that Noel de Jesús Beteta Álvarez had been “discharged” or “not in active duty” at the time of the facts, to avoid any link between the actions committed by Beteta Álvarez and the Presidential General Staff.

174. This behavior of the Presidential General Staff and of the Ministry of National Defense, manipulating the information requested by the courts, is also an act of obstruction of the administration of justice that seeks to provide impunity to the members of the Presidential General Staff involved, with the aim of avoiding a serious, impartial, and effective investigation of the murder of the victim.

d) Official secret

175. The Court has deemed proven that the Ministry of National Defense, resorting to official secret regulated by Article 30 of the Political Constitution, has refused to supply certain documents pertaining to the functioning and structure of the Presidential General Staff; in other cases, said Ministry has supplied vague and imprecise information that did not satisfy the requirements of the judicial authorities and of the Public Prosecutor’s Office (supra para. 134.90).

176. It has been proven that the Ministry of National Defense carried out this type of actions and, regarding this matter, witness Gabriela Vásquez Smerilli stated, in her testimony before the Court, that she had repeatedly requested eight documents from the Minister of Defense that had been requested by the Public Prosecutor’s Office, with no satisfactory answer. The replies received were, for example: that the documents did not exist because they had been incinerated; that the information had been submitted to the Public Prosecutor’s Office (but the information submitted had been different); or that the file requested did not exist. In other cases, the Minister of Defense provided information that was not what they had requested, or never supplied the information requested (supra para. 127.g).

177. Expert witness Henry El Khoury Jacob also stated to the Court, with respect to official secret, that in light of Article 30 of the Guatemalan Constitution “the judge is a sovereign authority and the public office cannot refuse. For this there is, let us say, a minor procedure to be followed and the judge will assess what must be done if it truly is a secret and then how he will proceed, discretionally and discretely […] with that secret” (supra para. 127.j).

178. In this regard, the Court underlines that Guatemalan legislation - in Article 244 of the Criminal Procedures Code – sets forth a procedure by means of which the competent court or the judge controlling the investigation can privately examine documents whose secrecy is alleged, and establish whether said documents are useful for the case, whether he includes them in the proceeding, and how to authorize their disclosure to the parties, who must safeguard the secrecy of their content. Nevertheless, despite the fact that the competent courts requested several documents from the Ministry of National Defense based on that provision, the Ministry did not submit them, arguing that the information contained in the documents constituted official secret (supra paras. 134.93 and 134.94).

179. As the European Court of Human Rights has stated, in cases in which certain evidence is kept secret for reasons of public interest (such as national security), it is not for the international court to establish whether secrecy of the information is necessary or not, as generally this is for the national courts to decide. However, it is for the international court to determine whether the domestic proceeding respects and protects the interests of the parties. In this regard, the European Court pointed out that retaining important evidence arguing public interest, without notifying the judge in charge of the case, does not comply with the requirements of Article 6 of the European Convention, which is equivalent to Article 8 of the American Convention.

180. The Court deems that in cases of human rights violations, the State authorities cannot resort to mechanisms such as official secret or confidentiality of the information, or reasons of public interest or national security, to refuse to supply the information required by the judicial or administrative authorities in charge of the ongoing investigation or proceeding.

181. The Court shares the statement of the Inter-American Commission with respect to the following:

[i]n the framework of a criminal proceeding, especially when it involves the investigation and prosecution of illegal actions attributable to the security forces of the State, there is a possible conflict of interests between the need to protect official secret, on the one hand, and the obligations of the State to protect individual persons from the illegal acts committed by their public agents and to investigate, try, and punish those responsible for said acts, on the other hand.

[…P]ublic authorities cannot shield themselves behind the protective cloak of official secret to avoid or obstruct the investigation of illegal acts ascribed to the members of its own bodies. In cases of human rights violations, when the judicial bodies are attempting to elucidate the facts and to try and to punish those responsible for said violations, resorting to official secret with respect to submission of the information required by the judiciary may be considered an attempt to privilege the “clandestinity of the Executive branch” and to perpetuate impunity.

Likewise, when a punishable fact is being investigated, the decision to define the information as secret and to refuse to submit it can never depend exclusively on a State body whose members are deemed responsible for committing the illegal act. “It is not, therefore, a matter of denying that the Government must continue to safeguard official secrets, but of stating that in such a paramount issue its actions must be subject to control by other branches of the State or by a body that ensures respect for the principle of the division or powers...” Thus, what is incompatible with the Rule of Law and effective judicial protection “is not that there are secrets, but rather that these secrets are outside legal control, that is to say, that the authority has areas in which it is not responsible because they are not juridically regulated and are therefore outside any control system…”

182. This refusal by the Ministry of National Defense to supply all the documents requested by the courts, resorting to official secret, constitutes an obstruction of justice.

e) Murder of a police investigator; harassment and threats against legal operators, police investigators, witnesses, members of the Myrna Mack Foundation and of AVANCSO and the next of kin of Myrna Mack Chang

183. It has been proven that in Guatemala at the time of the facts there was a widespread situation of fear of cooperating in cases of elucidation of human rights violations, as those who cooperated suffered acts of intimidation, harassment, threats, and murders (supra para. 134.13).

184. It has also been deemed proven that certain judges have avoided hearing and ruling on this case (supra para. 134.100). In this regard, former judge Henry Monroy Andrino, in his testimony before the Court, stated that this attitude of the judges was primarily justified because members of the army and especially of the Presidential General Staff were involved, and that this circumstances made them fearful of suffering reprisals due to their actions to determine the responsibility of these persons in the criminal proceeding (supra para. 127.f).

185. In this regard, it has been established that former judge Henry Monroy Andrino issued the order for the trial to commence against the members of the high command of the Presidential General Staff, and from that moment on he suffered serious threats against his life and personal integrity and that of his family, for which reason he was forced to resign his position and leave Guatemala. Pursuant to the above, Henry Monroy Andrino (supra paras. 127.f and 134.100) stated before the Court that:

from that moment on [when he issued the order to commence the proceeding] I began to suffer threats and acts of intimidation, threats over the phone. Various types of intimidation, among which I can highlight the fact that I was summoned to the office of the Secretary General of the Judiciary Body where he, verbally, warned me that I should be careful because the judges who dared to issue rulings against members of the Army suffered accidents.

[…]

I began to feel fear regarding my physical safety, since as I mentioned in this specific case of the murder of anthropologist Myrna Mack there was a complete sequence of threats and acts of intimidation against legal operators, witnesses, members of the National Police, as I mentioned, including the murder of one of the investigators. In other words, in concrete terms, I felt fear, I was afraid of what was happening.

[…]

Aside from this, there were also the pressures of my family, who felt threatened, and I decided to leave Guatemala, with all the consequences that come with exile.

186. Regarding the above, Helen Mack Chang stated, in her testimony before the Court, that “all the witnesses had to go into exile, all of them. And the judges who heard the case were also threatened […]. Subsequently an assistant, a legal operator, also had to go into exile.” (supra para. 127.d).

187. It has likewise been proven that two police investigators, José Mérida Escobar and Julio Pérez Ixcajop – who prepared the September 29, 1990 police report, in which they reached the conclusion that the motive of the murder of Myrna Mack Chang was political, and they identified a member of the Presidential General Staff as a suspect– suffered a series of acts of harassment and threats for having conducted the investigation of the case (supra paras. 127.e, 134.95 to 134.98).

188. It has also been deemed proven that police investigator José Mérida Escobar was murdered after having ratified before the courts the police report issued on September 29, 1990. The facts pertaining to his death have not yet been effectively investigated (supra para. 127.e).

189. It has furthermore been deemed proven that police investigator Julio Pérez Ixcajop, who also participated in the preparation of the aforementioned report, in face of the murder of his work colleague and the threats he was receiving, had to leave Guatemala to avoid similar facts happening to him (supra para. 134.97).

190. In connection with the above, Rember Larios Tobar, then the Head of the Criminological Investigations Department of the National Police of Guatemala, in his testimony before the Court, stated that José Mérida Escobar repeatedly “told me that he was under surveillance and being persecuted due to the investigation and I asked him to record that surveillance and he did [...]. However, after November 29 his life changed radically, because he began to suffer harassment, threats, surveillance, all types of persecution, and he constantly informed me of them.” Specifically, he recalled that before rendering his statements before the courts, José Mérida Escobar told him “that he was afraid because he was still being watched and threatened,” but “as this was one of his qualities, that strength of personality, he went to the court and told the truth about what he knew of the Myrna Mack Chang case, and several weeks after he testified, he was murdered” (supra para. 127.e).

191. It has likewise been deemed proven that Rember Larios Tobar, who was also offered as a witness in the criminal proceeding, began to receive threats, a situation that led him to leave Guatemala and go to Canada; in this regard, in his testimony before the Court, he stated that “just like what happened to investigator Mérida after September 29, 1990, I began to suffer harassment” (supra para. 127.e) and he specifically said that:

[b]efore my statement in the Myrna Mack case, which I rendered on December 13, 1991, and afterwards, I have suffered death threats and attempts against my life. In February, 1992, I was called by the police directorate to rejoin the police and I was then appointed head of the police in an area that was conflictive at the time. My life was in danger and I also suffered all types of harassment and death threats and I recall that in June of that year, 1992, I was ordered by the director of the police to conduct an arrest without a court order, which I refused to do because I would be or was breaking the law, so I told him that I could not do it. Then, as a reprisal he decided to dismiss me from that position, to conduct an investigation, to fabricate crimes that I had never committed. Afterwards, they made it public in all the media, both in the written press and on television, that I am a criminal, and surveillance became more intense, and there were five attempts against my life in which friends of mine were also wounded by bullets, and I could not live at my house because my house was being watched and it was also being fired at, and this forced me into exile in Canada. And well, I would like to say that I am alive when, according to the patterns and procedures that were designed at one time by the intelligence bodies, I should be dead like my colleague Mérida Escobar died. And I would like to say that my only sin, our only sin was to receive orders and carry out our functions as policemen.

192. It has also been established in the instant Judgment that three witness in the criminal proceeding were harassed and threatened, their lives and personal safety were at risk, and they decided to go into exile in Canada. Two of the witnesses, Juan Marroquín Tejeda and José Tejeda Hernández, recognized one of the two attackers of Myrna Mack Chang as Noel de Jesús Beteta Álvarez; and witness Virgilio Rodríguez noted that the victim’s house was being watched by at least three individuals, one of whom was Noel de Jesús Beteta Álvarez (supra para. 134.99). In this regard, Virgilio Rodríguez testified before the Court that when he read in the newspaper that the policeman who had interviewed him “had been machine-gunned at the corner of the General Directorate of the Police,” he decided to leave the country because “I thought that what happened to that person was also going to happen to me” (supra para. 127.b).

193. The above leads to the conclusion that the murder of policeman José Mérida Escobar, the harassment and threats against Judge Henry Monroy Andrino and witnesses Julio Pérez Ixcajop, Juan Marroquín Tejeda, José Tejeda Hernández, Virgilio Rodríguez and Rember Larios Tobar was aimed at making them fearful so that they would desist from cooperating in the search for the truth and, therefore, to obstruct the judicial development of the proceeding to punish all those responsible for the extra-legal execution of Myrna Mack Chang.

194. With respect to the staff of the Myrna Mack Foundation and of AVANCSO, they were also harassed and threatened several times, for which reason the Commission asked the Court to adopt provisional measures in favor of the former, and this Court decided to adopt them (supra para. 58).

195. Likewise, the next of kin of Myrna Mack Chang have suffered numerous threats and acts of harassment. Specifically, Helen Mack Chang, sister of the victim, has suffered them constantly and, in response to a request by the Commission for provisional measures in her favor, the Court ordered the State to adopt such measures as might be necessary to protect her life and her right to humane treatment (supra para. 58). After hearing the testimony and expert opinions during the public hearing at its seat, this Court, upon its own motion, ordered the State to adopt provisional measures in favor of the following immediate next of kin of the victim: Zoila Chang Lau, the mother; Marco Mack Chang, brother; Freddy Mack Chang, brother; Vivian Mack Chang, sister; Ronald Chang Apuy, cousin; Lucrecia Hernández Mack, daughter; and the children of the latter (supra para. 61). At the same time, the Court also ordered expansion of the provisional measures in favor of expert witness Iduvina Hernández, who rendered her statement before this Court (supra para. 61).

196. Subsequently, the Inter-American Court expanded the provisional measures in favor of Jorge Lemus Alvarado, linked to the ongoing criminal proceeding in Guatemala, and his next of kin (supra para. 62).

197. Furthermore, on the date the instant Judgment is issued, those responsible for the threats and intimidations suffered by these persons have not yet been identified nor punished.

198. This Court deems that the facts described against the family of the victim, the staff of the Myrna Mack Foundation and the staff of AVANCSO were aimed, as was already stated with respect to the legal operators, police investigators and witnesses, at frightening them into desisting from their intention of ensuring that the facts of the instant case be investigated and that all those responsible for the extra-legal killing of Myrna Mack Chang be identified and punished.

199. In light of the above, this Court deems that the State, to ensure due process, must provide all necessary means to protect the legal operators, investigators, witnesses and next of kin of the victims from harassment and threats aimed at obstructing the proceeding and avoiding elucidation of the facts, as well as covering up those responsible for said facts.

f) Lack of diligence in processing of the criminal proceeding by the judges

200. This Court has established that “[i]n order to clarify whether the State has violated its international obligations owing to the acts of its judicial organs, the Court may have to examine domestic proceedings.”

201. Thus, given the specifics of the case and the nature of the abridgments alleged by the Commission and the representatives of the next of kin of Myrna Mack Chang, the Court must examine the domestic judicial proceedings as a whole to attain a comprehensive perception of them and to establish whether said actions contravene the standards on the right to fair trial and judicial protection and the right to effective remedy, derived from Articles 8 and 25 of the Convention.

202. With respect to the criminal proceeding, it is necessary to state that the Court, when it refers to the right to fair trial, also known as procedural guarantees, has established that for said guarantees to truly exist in a proceeding, pursuant to the provisions of Article 8 of the Convention, it is necessary for all requirements to be fulfilled that are “designed to protect, to ensure or to assert the entitlement to a right or the exercise thereof,” in other words, the “prerequisites necessary to ensure the adequate protection of those persons whose rights or obligations are pending judicial determination.”

203. In the chapter on proven facts, lack of diligence and of willingness of the courts was demonstrated, as regards moving the criminal proceeding forward to elucidate all the facts pertaining to the death of Myrna Mack Chang and to punish all those responsible. The Court will not analyze here the actions of each of the courts that lacked due diligence (amparo remedies, constitutional motions, objections to judges, interlocutory motions, motions regarding lack of competence, appeals for annulment, requests for exemption under the National Reconciliation Law, among others), but as an example it will only refer to the use of amparo remedies, the filing and processing of which led those in charge of the criminal proceeding to incur notorious delays in the instant case. It should be recalled, as the State expressly affirmed in the May 29, 2001, report to the Inter-American Commission, that “[t]he Government of Guatemala acknowledges that there have been procedural vicissitudes, partly derived from excessive use of procedural remedies, but ones that must be respected by the Government and the authorities […].”

204. In the instant case the defendants have filed at least twelve amparo remedies, as shown in the chapter on proven facts, all of which were found inadmissible by the respective judicial authorities. The Court also notes, as pointed out by the Commission and the representatives of the next of kin of the victim, that these amparo actions paralyzed the proceeding for more than three years. The judicial authorities did not process the amparo remedies with due diligence, for them to be a rapid and effective remedy, but rather allowed them to become a tactic to delay the proceeding, as it can be heard by up to four different instances.

205. In this regard, the representatives of the next of kin of the victim pointed out that “[a]dministrating the amparo remedy in this manner [...] distorts the meaning of the action, which becomes a means of fostering, permitting and tolerating discussion in four different instances –e.g. the judge in charge of the investigation, the appellate chamber, the Supreme Court and the Constitutional Court – of almost all the court rulings, including those that are merely routine procedures.”

206. The Court notes that, as stated in the text entitled “Ley de Amparo, Exhibición Personal y de Constitucionalidad”, and according to the expert testimony of Henry El Khoury, the law itself places the amparo courts under the obligation to process and rule on all amparo remedies filed against any judicial authority for any procedural act. Therefore, the law itself places said courts under the obligation to process any amparo remedy, even if it is “patently inadmissible,” as the various remedies filed in this case were found to be.

207. However, the Court calls attention to the fact that in the criminal proceeding under discussion, frequent filing of this remedy, although permissible according to the law, has been tolerated by the judicial authorities. This Court deems that the domestic judge, as a competent authority to direct the proceeding, has the duty to channel it in such a manner as to restrict the disproportionate use of actions whose effect is to delay the proceeding. Processing of the amparo remedies together with their respective appeals was, in turn, conducted without complying with the legal terms, as the Guatemalan courts took on average six months to decide each one. This situation caused a paralysis of the criminal proceeding.

208. On the other hand, the Court notes that since February 9, 1994, the date on which the Supreme Court of Justice of Guatemala left the proceeding open against the accessories of the extra-legal execution of Myrna Mack Chang, the defense counsel filed a large number of legal questions and remedies (amparo remedies, constitutional motions, objections to judges, interlocutory motions, motions regarding lack of competence, appeals for annulment, requests for exemption under the National Reconciliation Law, among others), that have not allowed the proceeding to move forward to its natural culmination.

209. This manner of exercising the means made available by law to the defense counsel has been tolerated and permitted by the intervening judicial bodies, forgetting that their function is not exhausted by enabling due process that guarantees defense in the trial, but that they must also ensure within a reasonable time the right of the victim or the victim’s next of kin to know the truth of what happened and for those possibly responsible to be punished.

210. The right to effective judicial protection therefore requires that the judges direct the proceeding in such a way as to avoid undue delays and obstructions that lead to impunity, thus frustrating due judicial protection of human rights.

211. In light of the above, the Court deems that the judges, who are in charge of directing the proceeding, have the duty to direct and channel the judicial proceeding with the aim of not sacrificing justice and due legal process in favor of formalism and impunity. Thus, if the authorities permit and tolerate such use of judicial remedies, they turn them into a means for those who commit the illegal act to delay and obstruct the judicial proceeding. This leads to a violation of the international obligation of the State to prevent and protect human rights and it abridges the right of the victim and the next of kin of the victim to know the truth of what happened, for all those responsible to be identified and punished, and to obtain the attendant reparations.

g) Reasonable term

212. The Court has deemed proven that in the instant case the limits of a reasonable term have been exceeded, and the State has expressly recognized this since the acknowledgment of international responsibility before the Inter-American Commission on March 3, 2000.

213. This Court also notes that each of the points discussed above has contributed to the fact that a definitive judgment has not been issued that elucidates all the facts pertaining to the extra-legal execution of Myrna Mack Chang and that punishes all those responsible for the facts, including the direct perpetrators, instigators, participants and accessories after the fact, despite the passage of more than thirteen years from the date of the murder. In this regard, the United Nations Verification Mission in Guatemala pointed out in its tenth report that “[i]n the Myrna Mack case, the multiple remedies filed by the accused and the hesitancy of the trial courts to accept competence has had the effect of causing delays that affect the development of the proceeding and the right of the private accuser to be heard within a reasonable term.”

214. The fact that a covert military intelligence operation carried out by the Presidential General Staff was involved also delayed the criminal proceeding substantially (supra paras. 134.12, 134.13 and 134.26). In this regard, the State itself “also acknowledged that military influence might be a factor affecting the difficulties and irregularities in the proceeding.”

215. In view of the criteria set forth by the Court regarding this matter, and taking into account the scope of reasonable term in judicial proceedings, it can be stated that the proceeding followed before the various instances in this case did not respect the principle of a reasonable term enshrined in Article 8(1) of the American Convention.

216. It has been established that in the instant case the extra-legal execution of Myrna Mack Chang resulted from a military intelligence operation of the Presidential General Staff, which sought to conceal the facts and sought impunity of those responsible, and to this end, with tolerance by the State, it resorted to all types of means, including harassment, threats and murders of those cooperating with the courts. All this has affected the production of evidence and independence of the judiciary, has delayed the criminal proceeding, and has a negative impact on the development of this proceeding.

217. On the other hand, it has been proven that, despite the fact that said criminal proceeding commenced with the aim of elucidating the facts, it has not been effective to try and, if appropriate, to punish all those responsible, as stated before (supra paras. 134.19 and 134.26). While one of the direct perpetrators of the facts has been convicted, the truth of the matter is that the State has neither identified nor punished all those criminally responsible for the illegal acts that gave rise to the application (direct perpetrators, accessories, participants and accessories after the fact). In the case studied here, it has been proven that the killing of Myrna Mack Chang fit within a pattern of selective extra-legal executions (supra paras. 134.10 and 134.11), with the characteristic that there has also been impunity (infra paras. 134.12 and 134.13). In the context of this situation, the judicial remedies are not effective, the judicial investigations have serious shortcomings, and the passage of time plays a crucial role in erasing all traces of the crime, thus making the judicial protection enshrined in Articles 8 and 25 of the American Convention illusory.

218. In view of what has been stated above in this chapter, the Court reaches the conclusion that the State breached Articles 8 and 25 of the American Convention in combination with Article 1(1) of that same Convention, to the detriment of the following next of kin of Myrna Mack Chang: Lucrecia Hernández Mack, Yam Mack Choy, Zoila Chang Lau, Helen Mack Chang, Marco Mack Chang, Freddy Mack Chang, and Ronald Chang Apuy.

XI
VIOLATION OF ARTICLES 5 AND 1(1)
(RIGHT TO HUMANE TREATMENT AND
OBLIGATION TO RESPECT RIGHTS)

Pleadings of the representatives of the next of kin of the victim

219. In their autonomous brief with pleadings, requests, and evidence, the representatives asked the Court to find that the State has violated Article 5 of the American Convention to the detriment of the direct next of kin of Myrna Mack Chang, who are: Lucrecia Hernández Mack, daughter; Yam Mack Choy, the deceased father; Zoila Chang Lau, the mother; Freddy Mack Chang, brother; Marco Mack Chang, brother; Helen Mack Chang, sister; and Ronald Chang Apuy, first cousin. In this regard, they stated that:

a) the violation was due to the fact that the next of kin of the victim felt deep suffering and anguish because of the following situations: 1) the circumstances of the death of Myrna Mack Chang; 2) the harassment campaign directed against those who insisted on finding out the truth regarding the death of Myrna Mack Chang; and 3) inaction of the State to punish all those responsible;
b) for more than “twelve” years, the next of kin of the victim and, especially, Helen Mack Chang, have made numerous efforts to attain justice in the case and, since then, have lived under the imminent threat of suffering aggression as personal punishment for their struggle against impunity. Insistence of the family on trying all those responsible–direct perpetrators and accessories- of the murder of Myrna Mack Chang has been counteracted by the efforts of certain Guatemalan sectors to ensure impunity through acts of intimidation and violence. The feeling of insecurity and anguish that stems from having to live with this harsh reality must be considered non-humane treatment;

c) while the Commission did not expressly point to violation of Article 5 of the Convention in its application, that does not impede the Court from addressing this matter. The representatives of the next of kin of the victim have the autonomous power to allege violations of rights independently of the pleadings submitted by the Commission, inasmuch as the facts that are the object of the case brought before the Court are respected. The aim of the new Rules of Procedure of the Court is to enable autonomous defense of the interests of the victims or their next of kin, facilitating their active participation in the development of the proceeding. For this reason, forcing the representatives of the victims to restrict the content of their claim to the application submitted by the Commission would be contrary to the amendment. It is therefore consistent for the Court to recognize the right of the victim to autonomously requests a juridical solution of the case. If the Court did not explicitly recognize said right of the victim or the representatives of the victim, in any case it is competent to rule on the request based on the iura novit curia principle.

Pleadings of the Commission

220. The Commission did not refer in its application to a violation of Article 5 of the Convention. However, in its November 1, 2001 brief in which it submitted its observations on the autonomous brief filed by the representatives, it pointed out that “taking into account that said argument does not expand the object of the controversy of the Mack case when it was before the [Commission],” there is no impediment under the Convention for the Court to analyze the possible violation of said Article, based on the iura novit curia principle. Furthermore, the application against it is filed before the Court, the State knows the central object of the controversy, in other words, that the factual and legal basis that enables an effective exercise of the right of defense of the State is that the application filed by the Commission and the brief by the representatives of the next of kin of the victim substantially contain the same legal and factual controversies that were the object of the proceeding before the Commission. Finally, that the limits set forth in the Convention to the Court’s sphere of decision-making have not been altered by the brief of the representatives of the next of kin of the victim, who merely reaffirm the facts stated in the application and give them a different juridical definition, for which reason this does not affect the right of defense of the State nor the powers granted to the Commission by the Convention.

Pleadings of the State

221. In accordance with what the Court set forth in paragraphs 94 and 111, the State acquiesced unconditionally to the facts described by the Commission in its application and to the request of the representatives of the next of kin of the victim that the Court find that there was a violation of Article 5 of the Convention.

Considerations of the Court

222. Article 5(1) of the Convention states that:

[e]very person has the right to have his physical, mental, and moral integrity respected.

[...]

223. In their brief with requests, pleadings, and evidence, the representatives of the next of kin of the victim asked that the Court find that there was a violation of Article 5 of the American Convention to the detriment of the next of kin of Myrna Mack Chang. It should be underlined that the Inter-American Commission did not allege a violation of said Article. In addition, as stated above, in its March 3, 2003 brief, the State acquiesced with respect to abridgment of Article 5 of the Convention.

224. The Court has already established that it is possible for the victims, their next of kin or their representatives to allege violation of other Articles of the Convention than those already included in the object of the demand filed by the Commission, based on the facts contained in said application, for which it refers to the “Five Pensioners” case, in which it stated that:

[w]ith respect to inclusion of rights other than those already encompassed by the application filed by the Commission, the Court deems that the applicants can invoke said rights. It is they who are entitled to all the rights embodied in the American convention, and not admitting this would be an undue restriction of their status as subjects of International Human Rights Law. It is understood that the above, pertaining to other rights, adheres to the facts already contained in the application.

225. On the other hand, this Court has stated, in previous cases, that the next of kin of the victims of violations of human rights may, in turn, be victims. In the Villagrán Morales case, State authorities impeded elucidation of the facts pertaining to the case, which intensified the suffering of the next of kin. In face of said circumstances, the Court described the impact on the next of kin as “the feeling of insecurity and impotence caused to the next of kin by the failure of the public authorities to fully investigate the corresponding crimes and punish those responsible.”

226. In the instant case, the Court also takes into account the situation faced by the next of kin of Myrna Mack Chang as a consequence of the threats, following, harassment, and intimidation that they have suffered, as methods to stop them from continuing their efforts to attain justice with the aim of punishing all those responsible for the execution of Myrna Mack Chang (supra paras. 127.c and 127.d).

227. Specifically, on June 7, 2002, Helen Mack Chang, sister of the victim and President of the Myrna Mack Foundation, received a death threat issued by a group calling itself ‘Guatemaltecos de verdad’. Due to said threat, as well as information on an operation that was being prepared to attempt against her life, Helen Mack Chang had to leave Guatemala for some time. Furthermore, on July 25, 2002, unknown persons attempted to enter her home without identifying themselves.

228. In view of the facts described above, on August 9, 2002, the Inter-American Commission submitted to this Court a request for provisional measures in favor of Helen Mack Chang and other members of the Myrna Mack Foundation. On August 26 of that same year, the Court decided to adopt the provisional measures and ordered the State to adopt, forthwith, such measures as might be necessary to protect the life and safety of Helen Mack Chang and other members of the Myrna Mack Foundation (supra para. 60).

229. During the public hearing held in the instant case before the Court, Lucrecia Hernández Mack (supra para. 127.c) also stated that:

[…] being precisely in a state of insecurity affects us emotionally because we have not been able to close any circle of grieving as a family. […] No one in our family is willing to show vulnerability or weakness due to the situation of insecurity in which we live. […] And on the other hand, we can say that we are all constantly trying to adopt security measures. […] Even the dynamics among us, if something bad happens to one of us, we do not tell each other so that the others do not worry. […] I would just like to mention in my grandmother’s case and, well, I also include myself, the possibility of something happening sometime to my aunt Helen is something that causes us incredible anguish. It is an overly heavy emotional burden to think that I can lose a second mother or that my grandmother can lose a second daughter.

230. Likewise, during the public hearing at the seat of the Court (supra para. 127.d), Helen Mack Chang stated that:

[t]he pattern has always been that when a judicial step is going to be taken, there is always a threat. For example, once they entered the house, they went around the entire house, they asked for my family’s passports, they left and they did not steal anything. Phone calls, obviously. Recently, last year, a high official called me to tell me that there was an attack against me, that was when the Court ordered the provisional measures. Recently, the security forces themselves have detected following by vehicles with suspicious drivers around the Foundation and my house. They have attempted to link my brother to drug trafficking, and they even began a trial. There have also been other accusations brought against me. For example, for having exposed the clandestine groups, merely based on an opinion in the press where I had a report coming from the police, an anonymous report coming from the National Civil Police, giving all the names of policemen who were under the orders of one of the accused, Juan Guillermo Oliva Carrera. And this was enough for a lawsuit against me, aside from other threats trying to accuse me of other types of things.

[…]

I believe that it is mostly living with great anxiety, uncertainty. The State has resorted very much to psychological warfare. Even the motion by the State at this Court is one more tactic, more psychological warfare. I have the Agent of the State here whom I can say was a witness in my case, in my favor, and now they want to set him against me, using the same delay tactics that they have used within the country. They always want to play this game precisely with the people who are near me, to break me, emotionally and psychologically, so that I will not be able to go on. Within my family, I think that we have each lived an individual process to avoid breaking down as a family and to remain firm in this struggle to attain justice which has become a paradigmatic case, not only for the family but also because I think that I feel the weight on my back on many Guatemalans who see themselves reflected in this case because they have been unable to attain justice, it is quite a heavy weight that has obviously forced me to give up my personal life, to spend all my time and to be able to represent, in a dignified manner, the thousands of victims who had no opportunity, because every day they come up to me and urge me to go on. I have to go on with this case.

231. As a consequence of the statements by Lucrecia Hernández Mack and Helen Mack Chang during the public hearing held on February 21, 2003 before the Court, the latter decided to order the State to expand the measures as required to safeguard the life and the right to humane treatment of the next of kin of Myrna Mack Chang, who are: Zoila Chang Lau, the mother; Marco Mack Chang, brother; Freddy Mack Chang, brother; Vivian Mack Chang, sister; Ronald Chang Apuy, cousin; Lucrecia Hernández Mack, daughter; and the latter’s children (supra para. 61).

232. It has been proven, therefore, in the sub judice case, that there was a violation of the right to humane treatment of the next of kin of the victim as a direct consequence of the threats and harassment that they have suffered from the start of the investigation of the extra-legal execution of Myrna Mack Chang. This situation was worsened by the pattern of obstruction of the aforementioned investigations, the murder of a police investigator, the threats and harassment suffered by some of the legal operators, policemen, and witnesses, which forced them into exile. Said circumstances, made more severe by the long time that has passed without elucidation of the facts, has caused constant anguish among the next of kin of the victim, together with feelings of frustration and powerlessness and a deep fear of suffering the same pattern of violence fostered by the State. For this reason, the next of kin of Myrna Mack Chang must be considered victims because the State has damaged their psychological and moral integrity.

233. Pursuant to the above, the Court arrives at the conclusion that the State violated Article 5(1) of the American Convention, in combination with Article 1(1) of that same Convention, to the detriment of the following next of kin of Myrna Mack Chang: Lucrecia Hernández Mack, Yam Mack Choy, Zoila Chang Lau, Helen Mack Chang, Marco Mack Chang, Freddy Mack Chang and Ronald Chang Apuy.
XII
APPLICATION OF ARTICLE 63(1)

234. Pursuant to the foregoing explanation in the previous chapters, the Court found that the State is responsible for violation of Article 4 of the Convention to the detriment of Myrna Mack Chang and of Articles 5, 8 and 25 of that same Convention to the detriment of her next of kin, all of them in combination with Article 1(1) of the American Convention. In its case law, this Court has established that it is a principle of International Law that any violation to an international obligation that has caused damage entails the duty to provide adequate reparation. For this, the Court has based itself on Article 63(1) of the American Convention, according to which,

[i]f the Court finds that there has been a violation of a right or freedom protected by this Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom that was violated. It shall also rule, if appropriate, that the consequences of the measure or situation that constituted the breach of such right or freedom be remedied and that fair compensation be paid to the injured party.

235. As the Court has stated, Article 63(1) of the American Convention contains a common-law provision that constitutes one of the fundamental principles of contemporary International Law regarding the responsibility of the States. According to it, when an illegal act attributable to the State takes place, the latter immediately incurs a responsibility for the violation of the international provision involved, with the attendant duty of providing reparations and of making the consequences of said violation cease.

236. Reparation of the damage caused by infringement of an international obligation requires, whenever possible, full restitution (restitutio in integrum), which consists of reestablishing the previous situation, If this is not possible, as in the instant case, it is for the international court to determine a set of measures, in addition to ensuring the rights abridged, to address the consequences of the infractions, as well as ordering payment of a compensation for the damage caused. The State under the obligation cannot invoke domestic legal provisions to modify or avoid complying with its obligations to redress, which are regulated in all their aspects (scope, nature, modes, and establishment of the beneficiaries) by International Law.
237. As the term suggests, reparations consist of measures that tend to make the effects of the violations committed disappear. Their nature and amount depend on the damage caused both at the pecuniary and non-pecuniary levels. In this regard, reparations ordered must be in relation to the violations found in the previous chapters of this Judgment.

238. Pursuant to the above, the Court must first decide on the determination of the beneficiaries of the reparations; then it will set the latter regarding pecuniary and non-pecuniary damage, other forms of reparation and, finally, legal costs and expenses.

XIII
BENEFICIARIES

Pleadings of the Commission

239. The Commission stated that, due to the nature of the violations committed by the State, those persons who had close emotional ties to Myrna Mack Chang were deeply affected both by the suffering experienced because of the loss of one of their beloved ones, and by their own emotional loss. The Commission deemed that the beneficiaries of the reparations must be: Lucrecia Hernández Mack, daughter; Víctor Hernández Anzueto, former husband (at the time of the facts they had already divorced); Yam Mack Choy, the father; Zoila Chang Lau, the mother; Helen, Marco, Freddy, Vivian and Ronald, all of them Mack Chang, “siblings of the victim.”

Pleadings of the representatives of the next of kin of the victim

240. The representatives of the next of kin of the victim claimed that the reparations that the Court might order, as a consequence of the human rights violations committed by the State against Myrna Mack Chang, “are payable to: 1) Myrna Mack Chang, the victim; 2) Lucrecia Hernández Mack, the daughter de the victim; 3) Yam Mack Choy, the father; 4) Zoila Chang Lau, the mother; and the siblings of the victim: 5) Helen Mack Chang, sister and private accuser; 6) Marco Mack Chang; 7) Freddy Mack Chang; and 8) Ronald Chang Apuy.”

Pleadings of the State

241. The State did not refer to the beneficiaries of the reparations in the instant case.

Considerations of the Court

242. The Court will now determine the person or persons who are the “injured party” in the instant case, pursuant to the terms of Article 63(1) of the American Convention. In view of the fact that the violations to the American Convention found by the Court in the instant Judgment were committed against Myrna Mack Chang, Lucrecia Hernández Mack, Yam Mack Coy, deceased, Zoila Chang Lau, Helen Mack Chang, Marco Mack Chang, Freddy Mack Chang, and Ronald Chang Apuy, all of them –as victims- must be included in said category and be entitled to the reparations ordered by the Court, both regarding pecuniary damage, when appropriate, and regarding non-pecuniary damage. With respect to the deceased victim, Myrna Mack Chang, it will also be necessary to determine which reparations ordered in her favor are transmissible.

243. The provision of Article 2(15) of the Rules of Procedure should be underlined, as regards the necessary breadth of the concept of “next of kin of the victim.” Said concept includes all persons linked by close kinship, including the parents, children and siblings, who might have the right to compensation, insofar as the fulfill the requirements set forth in the case law of this Court. Regarding this point, we must highlight the criterion followed by the Court of assuming that the death of an individual causes non-pecuniary damage to the closest members of the family, especially those who were in close emotional contact with the victim, a situation that will be determined in the respective chapter.

244. It has also been proven that Ronald Chang Apuy, first cousin of the victim, was raised by the Mack Chang family since he was a small child and is considered one more member of the family. Therefore, the Court deems that Ronald Chang Apuy will be assimilated to the status of sibling and it assumes that he could not be indifferent to what happened to Myrna Mack Chang, for which reason the acts in violation of the Convention set forth in this Judgment also affected him and he must be considered a beneficiary of the reparations.

245. With respect to Vivian Mack Chang, this Court deems that, even though she has not participated in the instant proceeding, personally or through a representative, it has been proven that she is a sister of the victim. Therefore, the Court assumes that she has undergone the same suffering as the rest of the family, for which reason she must also be a beneficiary of reparations.

XIV
REPARATIONS

246. In accordance with the evidence gathered during the proceeding and in light of the criteria set forth by this Court in its case law, the Court will now analyze the claims of the parties regarding this matter, so as to determine the measures of reparation pertaining to pecuniary and non-pecuniary damage and other forms of reparation.
A) PECUNIARY DAMAGE

Pleadings of the Commission

247. With respect to the estimate of pecuniary damage, the Commission alleged that, to fairly estimate the lost income in accordance with the needs and circumstances of this case, the Court must take into account the following factors:

a) Myrna Mack Chang was a renowned professional, both at a national and international level, in the field of social anthropology. She pursued graduate studies in England, which was uncommon for a Latin American woman in the early 1980s and in terms of Guatemalan reality. The victim was also the co-founder of AVANCSO and she attended numerous international conferences. The Court must take this background information into account, as when the State arbitrarily deprived Myrna Mack Chang of her life, she had before her an enormous potential in terms of the possibilities to continue carrying out her research activities, as well as a wide range of professional opportunities; and

b) to estimate the “lost earnings” it is necessary to take into account the average of what the victim earned at the time of the facts and the monthly salaries earned today by various professionals with the academic qualifications, experience and international reputation that Myrna Mack Chang had attained. To this it is necessary to add the interest to compensate for devaluation of the currency in the past, up to the date of payment; there should be a deduction for the sum of future losses of present value, as well as a 25% deduction for personal consumption.

Pleadings of the representatives of the next of kin of the victim

248. The representatives of the next of kin of the victim asked the Court to order the State to pay the “lost earnings” of the victim, for which they pointed out that:

a) to estimate the lost earnings, the Court should take into account that when she was murdered, the victim was an outstanding professional and intellectual, both in her country and in international circles, for which reason she had many professional opportunities before her;

b) to estimate the non-earned salary of Myrna Mack Chang, the Court can base its calculations on the average of what she earned at the time of the facts, what the director of AVANCSO earns today, and the salary earned by persons in Guatemala with similar academic credentials employed in the field of social science. In the course of over ten years, Myrna Mack Chang’s salary would have increased due to length of service, rising cost of living, and inflation in Guatemala;

c) to estimate lost earnings in this case, they requested that the Court accept the calculation made by the expert witness offered before the Court, which adds up to US$949,434.78 (nine hundred forty-nine thousand four hundred and thirty-four United States dollars and seventy-eight cents). In a subsidiary manner, they requested that an appropriate calculation be made in accordance with the traditional standards of the inter-American system and the specific situation of Myrna Mack Chang, in which case the amount for this item adds up to US$561,384.64 (five hundred sixty-one thousand three hundred eighty-four United States dollars and sixty-four cents);

d) as a consequence of the violations to the Convention found in this case, there were additional economic losses, including personal expenses and costs resulting from the search for justice. Expenses in connection with medical or psychological treatment required due to the damage caused to the next of kin are also included: the expenses owed to Yam Mack Choy, father of the victim, amount to US$16,442.30 (sixteen thousand four hundred and forty-two United States dollars and thirty cents) and the expenses owed to Lucrecia Hernández Mack, daughter of the victim, amount to US$7,692.30 (seven thousand six hundred and ninety-two United States dollars and thirty cents); and

e) with respect to the sister of the victim, Helen Mack Chang, she left her job to undertake the search for justice, which changed all her life to struggle against the continuous injustice by the State, and they asked the Court to set an amount in fairness to compensate for her violated rights and the attendant drastic change in her life plan.

Pleadings of the State

249. The State did not refer specifically to the pecuniary damage.

Considerations of the Court

250. The Court will now establish the material damage, which includes loss or reduction of the income of the victim and expenses incurred by the next of kin of the victim due to the facts, for which it will determine a compensation that seeks to redress the patrimonial consequences of the violations found in the instant Judgment. For this, it will take into account the evidence gathered in this case, the case law of the Court itself, and the pleadings of the representatives of the next of kin of the victim, of the Commission and of the State.

a) Lost earnings

251. The Commission and the representatives of the next of kin of the victim requested compensation for the lost earnings of Myrna Mack Chang. Specifically, said representatives requested that the Court adopt as a basis the average of what the victim earned at the time of the facts, what the director of AVANCSO earns today, the salary earned by persons with similar academic credentials to those of the victim, the salary increase of the victim over time, the rising cost of living, inflation in Guatemala, and life expectancy, among others.

252. With respect to the lost earnings of Myrna Mack Chang, the Court, in fairness, sets the amount at US$235,000.00 (two hundred and thirty-five thousand United States dollars) for this item. Said amount must be given to the daughter of the victim, Lucrecia Hernández Mack.

b) Consequential damages

253. Taking into account the claims of the parties, the body of evidence, the proven facts in the instant case and its own case law, the Court finds that compensation for material damage in the instant case must also include the following:

1) with respect to Helen Mack Chang, sister of the victim, it has been proven that as a consequence of the extra-legal death of her sister, she undertook the task of searching for justice, for over thirteen years, through her active participation in the criminal proceeding to investigate the facts and to identify and punish all those responsible. Helen Mack Chang gave up her work as a consequence of the facts discussed in the instant case, established the Myrna Mack Foundation, and has spent much of her time struggling against impunity. The Court deems that Helen Mack Chang stopped receiving her customary income as a consequence of the facts and bearing in mind the specific circumstances of the sub judice case, in fairness, it sets the amount of compensation at US$25,000.00 (twenty-five thousand United States dollars);

2) as regards the father and the daughter of the victim, it has been proven that due to the extra-legal death of Myrna Mack Chang and of the consequences stemming from this fact, they suffered various physical and psychological illnesses, for which they had to receive medical treatment. Therefore, the Court deems it pertinent to set US$3,000.00 (three thousand United States dollars) as compensation for medical expenses incurred by Yam Mack Choy and US$3,000.00 (three thousand United States dollars) for Lucrecia Hernández Mack, for this same item. Since Yam Mack Choy passed away on April 24, 1999, compensation in his favor must be paid in full to Zoila Chang Lau; and

254. Based on all the above, the Court sets as compensation for material damage due to the violations found, the following amounts:

REPARATIONS FOR PECUNIARY DAMAGE
Lost
earnings Consequential damages Medical expenses incurred
Total

Myrna Mack Chang US$235,000.00 US$235,000.00
Lucrecia Hernández Mack (daughter) US$3,000.00
US$3,000.00
Yam Mack Choy (the father) US$3,000.00
US$3,000.00
Helen Mack Chang (sister) US$25,000.00 US$25,000.00
TOTAL US$266,000.00

B) NON-PECUNIARY DAMAGE

255. The Court will now consider those injurious effects of the facts of the case that are not financial or patrimonial. Non-pecuniary damage can include both the suffering and affliction caused to the direct victims and their close relations, the detriment to the individuals’ very significant values, as well as non-pecuniary alterations to the conditions of existence of the victim or the victim’s family. This damage can only be compensated by the amount set by the Court reasonably applying judicial discretion.

Pleadings of the Commission

256. As regards assessment of non-pecuniary damage, the Commission alleged that it is obvious, from the facts of the case, that both Myrna Mack Chang and the members of her immediate family experienced moral suffering as a consequence of her extra-legal execution, especially the daughter of the victim, who at the time of the facts was 16 years old. This suffering has also been worsened by the fact that in the instant case there has been impunity for the accessories of the murder of the victim. The next of kin of the victim, especially her sister Helen Mack Chang, have struggled for over twelve years with all the attendant emotional stress involved in combating impunity, and they have endured threats, intimidations, and harassment by agents of the State.

257. On the other hand, the Commission deems that fair monetary compensation should be given to redress the detriment to the life project of Myrna Mack Chang. Planning and execution of the victim by agents of the State was aimed at the specific objective of depriving her of her life project, as through her social research she inconvenienced the upper echelons of the State. Elimination of the life options of the victim “objectively reduced her freedom and constitutes the loss of a valuable asset,” and they asked the Court to recognize said detriment as part of the compensation ordered. This type of grave detriment to the life path of a victim is not part of the item of pecuniary damage or of moral damage. The Commission shares the opinion that these damages are difficult to quantify, but it believes that resorting to the doctrine of the system and to considerations of fairness, there is a solid basis to estimate a compensation that recognizes the value of a life from a more comprehensive perspective.

Pleadings of the representatives of the next of kin of the victim

258. The representatives of the next of kin of the victim pointed out that it is obvious, from the facts stated, that Myrna Mack Chang and her next of kin experienced moral suffering as a consequence of the extra-legal execution, especially her daughter, who was 16 year old at the time of the facts. The Mack Chang family trusts that the Court will set a fair amount to compensate each member of the family for the rights abridged, and they suggest that in reaching this decision the Court take into account that this is an especially grievous case, not only because it is a terrible and deliberate homicide of an outstanding professional, but also because it involves a thirteen-year struggle by the family to attain a system of impartiality and justice in a country whose State has caused suffering and frustration to each of the next of kin.

Pleadings of the State

259. The State did not refer to non-pecuniary damage.

Considerations of the Court

260. International case law has repeatedly established that the judgment constitutes per se a form of reparation. Nevertheless, given the grave circumstances of the instant case, the intensity of suffering caused by the respective facts to the victim and her next of kin, the alterations to the conditions of existence of the next of kin and the other non-material or non-pecuniary consequences suffered by the latter, the Court deems that it must order payment of a compensation for non-pecuniary damages, in fairness.

261. In the sub judice case, in setting the compensation for non-pecuniary damage, the Court takes into account that Myrna Mack Chang was extra-legally executed in circumstances of extreme violence (supra para. 134.4), for which reason it is evident that she felt corporal pain and suffering before her death, and this was aggravated by the climate of harassment at the time.

262. As the Court has pointed out, non-pecuniary damage inflicted on the victim is evident, at it is part of human nature that every person subject to aggression such as that committed against Myrna Mack Chang experiences deep moral suffering.

263. In this regard, the compensation set by the Court for the damage suffered by Myrna Mack Chang up to the moment of her death must be given in full to the daughter of the victim, Lucrecia Hernández Mack.

264. In the case of the next of kin, it is reasonable to conclude that the affliction suffered by the victim extends to the closest members of the family, especially to those who were in close emotional contact with her. No evidence is required to reach this conclusion. In addition, in the instant case some of the next of kin of Myrna Mack Chang are victims of violations of various Articles of the American Convention (supra paras. 218 and 233). To set compensation for non-pecuniary damage, the next of kin of the victims will be considered in that dual condition, for which reason the Court deems that:

a) the threats, intimidation and harassment suffered by the next of kin as part of what happened to Myrna Mack Chang have been proven, and they have caused deep suffering to the members of the family, daughter, parents and siblings and cousin of the victim (supra para. 134.104). Furthermore, the impunity prevailing in this case has been and continues to be a source of suffering for the next of kin. It makes them feel vulnerable and in a state of permanent defenselessness vis-à-vis the State, and this causes them deep anguish (supra para. 134.105);

b) with respect to Lucrecia Hernández Mack, daughter of the victim (supra paras. 134.103 and 243), this Court notes that she was 16 years old at the time her mother was murdered, and she depended on her emotionally and financially, as she did not live with her father. She experienced a traumatic situation due to the unexpected loss of her mother, which caused her deep grief and sadness that still affect her life. She is hurt by the absence of her mother because at certain moments in her life, such as academic ones or motherhood, she feels the need to have her close to share their concerns and receive advice. She is also very concerned about her family and in constant fear of losing another beloved one. On the other hand, as regards the criminal proceeding, its constant delays have been frustrating for her and, especially, the fact that there is still impunity for those responsible makes her feel very insecure (supra para. 127.c). Due to all the above, this Court deems that she must be compensated for non-pecuniary damage;

c) with respect to Yam Mack Choy, the deceased father of the victim, and Zoila Chang Lau, mother of the victim, attention must be paid to the fact that the Court assumes that the death of a person causes non-pecuniary damage to the parents, for which reason it is not necessary to prove this. As this Court has stated before, “we can admit the presumption that the parents have suffered mentally for the cruel death of their children, since it is human nature that every person feels pain in the face of the suffering of a child.” In the instant case, Yam Mack Choy, after the death of her daughter, in addition to the grief that this caused her, suffered physical illnesses that damaged his health and put an end to his life. The mother of the victim, in turn, has suffered deep grief, which she tried to express as follows in her sworn statement:

To recall my daughters death means to continue asking: why did they kill her?, if she was always good, intelligent, and studious, with high ideals and without personal ambitions. Her friends have always expressed the warm feelings and affection they felt for her and they all agree that she always showed great solidarity, that she struggled for the truth and for the neediest, and therefore I still do not understand why she died.

I have dreamt of her several times, this has always heartened me a little because I feel that it is a way to keep in touch, but I also suffer very much when I do not dream of her because I feel that she is far away and I become very sad.
I never thought that one of my children would die before me, her death has been a very harsh blow for me because I feel that I did not protect her enough. I ask myself why I did not realize that something was wrong, I should have told her to go travel for some time, while the bad times passed, I do not know, something could have been done to avoid what happened. It is not fair that they killed her if she was so good.

After Myrna’s murder, my husband suffered a terrible disappointment in the way he thought about our country; like myself, he did not understand how that could have happened to his daughter. He began to have health problems, suffered deep depressions, and I suspect that it was the death of his oldest daughter that triggered much of his sadness. If she had been alive, I believe that he would have lived much longer.”

For all the above, this Court deems that the parents of the victim must be compensated for non-pecuniary damage. Since Yam Mack Choy passed away, the compensation in his favor must be given in full to Zoila Chang Lau;

d) with respect to Helen Mack Chang, the sister of the victim, this Court also deems that in the case of siblings the degree of relationship and affection between them must be taken into account. This lady has felt deep suffering and grief due to the extra-legal death of her sister, which altered her life and that of her family, especially that of her parents and of her niece; the way her sister was murdered has had an impact on her for a long time; seeing her parents pain and having had to give her niece the news of her mother’s death has caused her indescribable suffering. Taking the necessary steps before the police and the judiciary to seek justice involved her in a process “which [she] never imagine[d] would take on the proportions it did.” She had to give up her professional activity to personally undertake the search for justice and, therefore, to struggle against impunity. She has participated actively in the criminal proceeding from the start; she has suffered acts of harassment and threats that have place her life and her personal safety at risk; and to protect her family, she has adopted serious security measures that have altered their family life, all of which has caused her great emotional stress (supra para. 127.d). Therefore, the Court deems that she must be compensated for non-pecuniary damage;

e) with respect to Marco Mack Chang and Freddy Mack Chang, brothers of the victim, they also suffered grief due to the cruel death of their sister, and her absence saddens them; she was the person who supported the family in difficult moments. They have also suffered the stress of struggling for such a long time to elucidate the facts and of living with the uncertainty of what will happen in the proceeding, a situation that has also made them fear the danger faced by the family at crucial moments in the trial (supra paras. 134.104 and 134.105). Therefore, this Court deems that they should be compensated for non-pecuniary damage;
f) with respect to Vivian Mack Chang, sister of the victim, this Court has stated, in its recent case law, that it can be assumed that the death of a sibling causes non-pecuniary damage to the other siblings and, therefore, she must receive compensation for this; and

g) regarding Ronald Chang Apuy, cousin of the victim (supra para. 134.103), it has been proven that he lived with the Mack family since he was small and that he is considered one more member of the family. He had close emotional ties with Myrna Mack Chang and he has shared with the family the sorrow and suffering for their loss. He has also experienced the fear caused by the threats and acts of intimidation received throughout the criminal proceeding for elucidation of the facts and the uncertainty due to the delays in this proceeding. Therefore, the Court deems that he too should receive compensation for non-pecuniary damage.

265. Therefore, this Court concludes that the grave non-pecuniary damage suffered by the next of kin of Myrna Mack Chang has been fully proven.

266. In the instant case, the need of the daughter of the victim, Lucrecia Hernández Mack, to receive psychological treatment for the damage caused by the violations committed by the State has also been proven. Therefore, the Court sets, in fairness, US$10,000.00 (ten thousand United States dollars), as the amount to cover future medical expenses that she requires.

267. Taking into account the various aspects of the damage discussed above, insofar as it is pertinent and in accordance with the specifics of the case, the Court sets the value of compensations for non-pecuniary damage to be paid to the next of kin of the victim, in fairness, as stated in the following table:

Reparation for non-pecuniary damage
Victim and next of kin Non-pecuniary damage Total
Myrna Mack Chang US$40,000.00 US$40,000.00
Lucrecia Hernández Mack (daughter) US$110,000.00 US$110,000.00
Yam Mack Choy (the father) US$40,000.00 US$40,000.00
Zoila Chang Lau (the mother) US$40,000.00 US$40,000.00
Helen Mack Chang (sister) US$100,000.00 US$100,000.00
Marco Mack Chang (brother) US$5,000.00 US$5,000.00
Freddy Mack Chang (brother) US$5,000.00 US$5,000.00
Vivian Mack Chang (sister) US$5,000.00 US$5,000.00
Ronald Chang Apuy (cousin) US$5,000.00 US$5,000.00
TOTAL US$350,000.00

C) OTHER FORMS OF REPARATION

268. The Court will now consider other injurious effects of the facts, which are not financial or patrimonial in nature, and which may be redressed by means of acts of the public authorities; these include investigation and punishment of those responsible, remembrance of the victim and consolation to her relatives; and signifying official reproval of the human rights violations that occurred and undertaking a commitment that acts such as those of the instant case will happen no more.

Pleadings of the Commission

269. Regarding this point, the Commission asked the Court to order the State to adopt the following reparations as measures of satisfaction and guarantees of non-recidivism:

a) to take such measures as may be necessary to provide domestic legal effect to the obligation to investigate and effectively punish the accessories of the extra-legal execution of Myrna Mack Chang. The main reparation sought is the effective trial and punishment of the accessories in the murder of Myrna Mack Chang;

b) to remove all obstacles and de facto and legal mechanisms that maintain impunity in the instant case. In this regard, the judges, prosecutors, witnesses, legal operators and next of kin in this case must receive sufficient safety guarantees; furthermore, the judicial authorities must use all means available to them so as to expedite the proceeding in pursuit of justice;

c) to promptly substitute the Presidential General Staff in compliance with the agreements set forth in the Peace Accords;

d) to adopt the de facto and legal measures required for the Guatemalan legal system to be free of rules that enable protection through official secret in investigations on human rights violations;

e) to ensure remembrance of the victim through other measures of satisfaction and non-recidivism, for which it requested that the State publish a book on the history of Myrna Mack Chang’s life; that it produce a video on the history of the victim’s life; that it build a monument to honor the victim or name a square or avenue after her; and that it establish a scholarship in her name in the Anthropology career at a Guatemalan university for a student to be funded throughout his or her studies;

Pleadings of the representatives of the next of kin of the victim

270. In their respective brief, the representatives of the next of kin of the victim stated that the Mack family asked the Court to order the State to adopt the following measures of satisfaction:

a) to continue the domestic judicial investigation and publicly try all the direct perpetrators and accessories who have not yet been tried;

b) to remove all obstacles to the development of the domestic judicial proceeding, which includes adopting the following measures:

b.i) since Helen Mack Chang as “partie civile” in the criminal proceeding has sought to obtain the testimony of witnesses living abroad to establish who the accessories were, without an efficient response by the State, that the Court order the State to issue the required authorizations to allow witnesses Virgilio Rodríguez Santana, Rember Larios Tobar, Julio Pérez Ixcajop, Juan Marroquín Tejeda, and José Tejeda Enríquez to be heard by the Court in the case in Guatemala. The State must ensure such measures as may be necessary for the production of the evidence and to provide the security conditions required;

b.ii) that it adopt such security measures as may be necessary to protect the life and the right to humane treatment of all the next of kin, judges, prosecutors, witnesses, attorneys, and other judicial authorities involved in the case;

b.iii) as an exceptional measure, that the Court appoint an observer to monitor the domestic proceedings and to report to the Court on a regular basis;

b.iv) that it order an investigation of the judges who have not observed Guatemalan laws and legal proceedings with respect to the amparo remedies filed and the use of official secret by the authorities;

b.v) that it order an investigation of the numerous interlocutory motions to obstruct justice in this case;

b.vi) that it order compliance with the requests for documents filed by the secretariat and the court during the proceedings against the direct perpetrator and the accessories;

c) that it adopt the following guarantees of non-recidivism:

c.i) that it adjust its judicial practice with the aim of ruling rapidly and effectively on repetitive or obstructive amparo remedies in this case, and that it adjust its amparo legislation in accordance with the American Convention, thus providing an effective judicial recourse for the victims;

c.ii) that it regulate and constitutionally interpret the application of the doctrine of official secret;

c.iii) that it order compliance with the Peace Accords and the recommendations of the Comisión de Esclarecimiento Histórico (CEH) to resolve the continuous conflicts in Guatemala. Non-compliance with these recommendations impedes closing the circle of violence and impunity in the country. These measures include, especially:

- dissolving the Presidential General Staff (EMP);
- a reform of the intelligence bodies in Guatemala, for which the Government must submit to Congress the respective bills to: a) precisely define the structures, tasks, and spheres of action of civil and military intelligence, restricting the latter to exclusively military objectives; and b) to clearly establish effective control mechanisms of Congress over all aspects of the intelligence apparatus of the State;
- establishment of a national holiday, the Day of the Victim, to commemorate the victims of human rights violations during the internal conflicts in Guatemala over the last thirty years.

c.iv) to reform the Guatemalan National Civil Police;

c.v) for José Mérida Escobar to be recognized by the police institution as a “martyr in performance of duty” and for his name to be vindicated at a public act, and for the police work of Rember Larios Tobar to be publicly recognized;

d) to adopt the following measures:

d.i) for the President of Guatemala and the Minister of Defense to publicly ask for the “forgiveness” of the Mack family for past and current human rights violations against the victim and her family;

d.ii) for two annual scholarships to be established in the name of Myrna Mack Chang to maintain public recognition of the victim and the nature of her work. These scholarships must be granted to Guatemalan students to study Anthropology and Law at respected and internationally recognized universities, outside Guatemala. AVANCSO and the Myrna Mack Foundation must also participate in selecting the students. This reparation is especially appropriate due to the Myrna Mack Chang´s academic background and her devotion to promoting human rights. The scholarships should enable reproduction, to a certain extent, of the impact of the life of the victim on Guatemalan society;

d.iii) for a monument to Myrna Mack Chang to be built, located in the region of Guatemala where she worked intensely.

Considerations of the Court

271. The Court has concluded, inter alia, that Guatemala violated Articles 8 and 25, in combination with 1(1) of the Convention, to the detriment of the next of kin of the victim, due to deficient direction of the judicial proceedings, their delays, and the obstructions effected to impede punishment all those responsible, including direct perpetrators, accessories, participants and accomplices after the fact, which has generated feelings of insecurity, defenselessness, and anguish in the next of kin of the victim.

272. The Court recognizes that in the instant case impunity of those responsible is partial, as one of the direct perpetrators has been tried and punished (supra paras. 134.5 and 134.22). Nevertheless, at the time of the instant Judgment, after more than thirteen years, the criminal proceeding is ongoing and is pending a decision on an appeal for annulment, for which reason a definitive judgment has not yet been issued that identifies and punishes all those responsible for the extra-legal execution of Myrna Mack Chang. On the other hand, there has been a situation of grave impunity that constitutes an infringement of the aforementioned duty of the State (supra para. 217), that is injurious to the next of kin of the victim, and that fosters chronic recidivism of the human rights violations involved.

273. This Court has repeatedly referred to the right of the next of kin of the victims to know what happened and to know who are the agents of the State responsible for the respective facts. As the Court has stated, “[w]henever there has been a human rights violation, the State has a duty to investigate the facts and punish those responsible, [...] and this obligation must be complied with seriously and not as a mere formality.”

274. The Court has reiterated that every person, including the next of kin of the victims of grave violations of human rights, has the right to the truth. Therefore, the next of kin of the victims and society as a whole must be informed of everything that has happened in connection with said violations. This right to the truth has been developed by International Human Rights Law; recognized and exercised in a concrete situation, it constitutes an important means of reparation. Therefore, in this case it gives rise to an expectation that the State must satisfy for the next of kin of the victim and Guatemalan society as a whole.

275. In light of the above, to completely redress this aspect of the violations committed, the State must effectively investigate the facts in the instant case, so as to identify, try, and punish all the direct perpetrators and accessories, and the other persons responsible for the extra-legal execution of Myrna Mack Chang, and for the cover-up of the extra-legal execution and of the other facts in the instant case, aside from the person who has already been punished for these facts. The outcome of the proceeding must be made known to the public, for Guatemalan society to know the truth.

276. The Court notes that the State must ensure that the domestic proceeding to investigate and punish those responsible for the facts in this case attains its due effects and, specifically, it must abstain from resorting to legal concepts such as amnesty, extinguishment, and the establishment of measures designed to eliminate responsibility. In this regard, the Court has already pointed out that:

[...] all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non-derogable rights recognized by international human rights law.

277. To comply with this obligation, the State must also remove all de facto and legal mechanisms and obstacles that maintain impunity in the instant case; it must provide sufficient security measures to the judicial authorities, prosecutors, witnesses, legal operators, and to the next of kin of Myrna Mack Chang and use all means available to it so as to expedite the proceeding.

278. On the other hand, for the acknowledgment of responsibility by the State and what this Court has set forth to have full reparation effects for the victims and to act as guarantees of non-recidivism, the Court deems that the State must carry out a public act of acknowledgment of its responsibility regarding the facts in this case and of amends to the memory of Myrna Mack Chang and to her next of kin, in the presence of the highest authorities of the State, which must be published in the media.

279. At that same act, taking into account the specifics of the case, the State must also publicly honor the memory of José Mérida Escobar, the police investigator who was murdered in connection with the facts in the instant case (supra para. 134.96).

280. The State must also publish, within three months of notification of the instant Judgment, at least once, in the official gazette “Diario Oficial” and in another national-circulation daily, operative paragraphs 1 to 12 and the proven facts contained in paragraphs 134; 134.1 to 134.8; 134.10 to 134.19; 134.26; 134.86 to 134.90; and 134.95 to 134.106, without the footnotes, of the instant Judgment.

281. The characteristics of the facts in this case reveal that the armed forces, the police corps, and the security and intelligence agencies of the State acted exceeding their authority by applying means and methods that were not respectful of human rights. It is imperative to avoid recidivism of the circumstances and facts described with respect to this same Judgment.

282. The State must adopt the necessary provisions for this and, specifically, those tending to educate and train all members of its armed forces, the police and its security agencies regarding the principles and rules for protection of human rights, even under state of emergency. The State must specifically include education on human rights and on International Humanitarian Law in its training programs for the members of the armed forces, of the police and of its security agencies.

283. On the other hand, the Court has established that there was participation of the high command of the Presidential General Staff and its Presidential Security Department or “Archivo” in the extra-legal execution of Myrna Mack Chang. In this regard, both the Inter-American Commission and the representatives of the next of kin of the victim requested, as a guarantee of non-recidivism, the dissolution of the Presidential General Staff. It is publicly known, as a notorious fact, that on September 24, 2003, the Congress of the Republic of Guatemala enacted the “Ley de la Secretaría de Asuntos Administrativos y de Seguridad de la Presidencia de la República” (SAAS), in which it established the juridical basis for the civil body in charge of security and support for the President, the Vice-President of the Republic and their families, in substitution of the Presidential General Staff. The Court also takes note of the fact that on October 31, 2003, the President of the Republic of Guatemala, Alfonso Portillo, held a ceremony at which the transfer of functions to the new SAAS agency began.

284. The Court deems that the activities of the military forces and of the police, and of all other security agencies, must be strictly subject to the rules of the democratic constitutional order and to the international human rights treaties and to International Humanitarian Law. This is especially valid with respect to the intelligence agencies and activities. These agencies must, inter alia, be: a) respectful, at all times, of the fundamental rights of persons; and b) subject to control by civil authorities, including not only those of the executive branch, but also, insofar as pertinent, those of the other public powers. Measures to control intelligence activities must be especially rigorous because, given the conditions of secrecy under which these activities take place, they can drift toward committing violations of human rights and illegal criminal actions, as occurred in the instant case.

285. With respect to guarantees of non-recidivism of the facts of the instant case, as part of public recognition of the victim, the State must establish a scholarship, in the name of Myrna Mack Chang, to cover the complete cost of a year of study in anthropology at a prestigious national university. Said scholarship must be granted by the State permanently every year.

286. The State must also name a well-known street or square in Guatemala City in honor of Myrna Mack Chang, and place a prominent plaque in her memory at the place where she died or nearby, with a reference to the activities she carried out. This will contribute to awakening public awareness to avoid recidivism of facts such as those that occurred in the instant case and to maintain remembrance of the victim.

XV
LEGAL COSTS AND EXPENSES

Pleadings of the Commission

287. The Commission stated that the activities to seek justice in the instant case are a direct result of the violations of rights committed by agents of the State and of the fact that the national authorities did not react with the due diligence stipulated by the American Convention. Therefore, the Court must recognize the reasonable costs incurred by the legal representatives in the instant case, both under domestic jurisdiction and before the bodies of the inter-American system.

Pleadings of the representatives of the next of kin of the victim

288. As regards legal costs and expenses, the representatives of the next of kin of the victim stated the following:

a) the Myrna Mack Foundation has incurred a number of expenses pertaining to its litigation under domestic and international jurisdiction, adding up to US$163,623.70 (one hundred and sixty-three thousand six hundred and twenty-three United States dollars and seventy cents). In addition, they requested US$104,399.93 (one hundred four thousand three hundred and ninety-nine United States dollars and ninety-three cents) for expenses incurred from September, 2001, to June, 2003, including administrative and operational expenses to continue the proceeding before the Court, as well as US$35,777.50 (thirty-five thousand seven hundred seventy-seven United States dollars and fifty cents) for actions under domestic jurisdiction. Therefore, the Myrna Mack Foundation asked this Honorable Court to reimburse the expenses it incurred, which must be paid by the State as compensation;

b) the Lawyers Committee for Human Rights incurred expenses for its work in the Mack case from 1990 to June, 2003, adding up to US$64,763.00 (sixty-four thousand seven hundred and sixty-three United States dollars);

c) the law firm Wilmer, Cutler and Pickering incurred legal costs and expenses and provided various legal services in its work on the Mach Chang case. Due to the importance of this case, the firm decided to waive it usual honoraria and asked the Court to assign it a symbolic amount of US$50,000.00 (fifty thousand United States dollars);

d) CEJIL has incurred a number of administrative and related expenses in the process of juridically substantiating the application in the instant case before the Court, for which reason they requested US$60,260.02 (sixty thousand two hundred and sixty United States dollars and two cents);

e) the law firm Hogan & Hartson, LLP has collaborated in the Myrna Mack Chang case. Due to the importance of the case, the firm decided to waive its usual honoraria and asked the Court to assign it a symbolic amount of US$50,000.00 (fifty thousand United States dollars);

Pleadings of the State

289. The State did not refer to legal costs and expenses.

Considerations of the Court

290. As the Court has stated on previous occasions, legal costs and expenses are included under the concept of reparation embodied in Article 63(1) of the American Convention, because the activities carried out by the next of kin of the victim with the aim of attaining justice, both under domestic and international jurisdiction, entail disbursements which should be compensated for when the State is found to be internationally responsible by means of a condemnatory judgment. As regards its reimbursement, it is for the Court to prudently assess its scope, including expenses incurred before the authorities under domestic jurisdiction and those incurred in the course of the proceeding before the inter-American system, bearing in mind the circumstances of the specific case and the nature of international jurisdiction for the protection of human rights. This assessment can be based on the principle of fairness and take into account the expenses stated by the parties, insofar as their quantum is reasonable.

291. For this, the Court deems it equitable to order payment of a total sum of US$163,000.00 (one hundred and sixty-three thousand United States dollars) for legal costs and expenses incurred by the representatives of the victim in the domestic proceedings and in the international proceeding before the inter-American system for protection of human rights. The corresponding payment must be distributed as follows:

a) US$145,000.00 (one hundred and forty-five thousand United States dollars) to the Myrna Mack Foundation;

b) US$5,000.00 (five thousand United States dollars) to Lawyers Committee for Human Rights;

c) US$5,000.00 (five thousand United States dollars) to the law firm Wilmer, Cutler and Pickering;

d) US$5,000.00 (five thousand United States dollars) to the law firm Hogan & Hartson; y

e) US$3,000.00 (three thousand United States dollars) to CEJIL.

292. As a consequence of the impunity that exists in the instant case and of the reparations ordered by this Court, in the future the Myrna Mack Foundation must take a number of steps pertaining to the ongoing criminal proceeding to punish all those responsible for what happened to Myrna Mack Chang. Therefore, to cover said future expenses, the Court grants the aforementioned Foundation, in fairness, US$5,000.00 (five thousand United States dollars).

XVI
METHOD OF COMPLIANCE

293. To comply with the instant Judgment, the State must pay the compensations and the reimbursement of legal costs and expenses within one year of notification of the instant Judgment.

294. Payment of the compensation ordered in favor of the victims or of their next of kin, as appropriate, will be made directly to them. If one of them should die, the payment will be made to his or her heirs.

295. The payments for reimbursement of legal costs and expenses incurred in steps taken by the representatives of the next of kin of the victim under domestic jurisdiction and in the international proceeding before the Inter-American System for the Protection of Human Rights will be made to said representatives (supra paras. 291 and 292).

296. If for any reason it were not possible for the beneficiaries to receive the respective payments within a year, the State must deposit the respective amounts in favor of said beneficiaries in an account or certificate of deposit, at a sound financial institution, in United States dollars or their equivalent in quetzales, under the most favorable financial conditions allowed by banking practice and legislation. If after ten years the payment has not been claimed, the amount will be given to a Guatemalan charity institution.

297. The State can fulfill its pecuniary obligations by means of a payment in United States dollars or in an equivalent amount of quetzales, using for the respective calculation the exchange rate between both currencies at the New York exchange the day before the payment.
298. Payment of the amount for pecuniary and non-pecuniary damage as well as for legal costs and expenses set forth in the instant Judgment cannot be subject to currently existing taxes or levies or any that may be decreed in the future.

299. If the State were to be in arrears, it must pay interest on the amount owed, which will be the banking interest rate for arrearages in Guatemala.

300. In accordance with its usual practice, the Court reserves the right, inherent to its authority, to monitor comprehensive compliance with the instant Judgment. The proceeding will be closed once the State has fully applied the provisions of the instant ruling. Within one year of when this Judgment is notified, the State must submit to the Court a first report on the measures adopted to comply with this Judgment.

XVII
OPERATIVE PARAGRAPHS

301. Now therefore,

THE COURT,

taking note of the acquiescence of the State, in which it unconditionally acknowledged its international responsibility regarding the case, and having assessed the body of evidence, as set forth in paragraphs 111 to 116 of the instant Judgment,

DECLARES THAT:

unanimously,

1. that the State violated the right to life enshrined in Article 4(1) of the American Convention on Human Rights, in combination with Article 1(1) of that same Convention, to the detriment of Myrna Mack Chang, as set forth in paragraphs 139 to 158 of the instant Judgment.

unanimously,

2. that the State violated the right to fair trial and to judicial protection embodied in Articles 8 and 25 of the American Convention on Human Rights, in combination with Article 1(1) of that same Convention, to the detriment of the following next of kin of Myrna Mack Chang: Lucrecia Hernández Mack, Yam Mack Choy, Zoila Chang Lau, Helen Mack Chang, Marco Mack Chang, Freddy Mack Chang and Ronald Chang Apuy, as set forth in paragraphs 165 to 218 of the instant Judgment.

unanimously,

3. that the State violated the right to humane treatment embodied in Article 5(1) of the American Convention on Human Rights, in combination with Article 1(1) of that same Convention, to the detriment of the following next of kin of Myrna Mack Chang: Lucrecia Hernández Mack, Yam Mack Choy, Zoila Chang Lau, Helen Mack Chang, Marco Mack Chang, Freddy Mack Chang and Ronald Chang Apuy, as set forth in paragraphs 224 to 233 of the instant Judgment.

unanimously,

4. that this Judgment constitutes per se a form of reparations, as set forth in paragraph 260 of the instant Judgment.

AND DECIDES THAT:

unanimously,

5. that the State must effectively investigate the facts of the instant case, with the aim of identifying, trying, and punishing all the direct perpetrators and accessories, and all others responsible for the extra-legal execution of Myrna Mack Chang, and for the cover-up of the extra-legal execution and other facts of the instant case, aside from the person who has already been punished for those facts; and that the results of the investigations must be made known to the public, as set forth in paragraphs 271 to 275 of the instant Judgment.

unanimously,

6. that the State must remove all de facto and legal obstacles and mechanisms that maintain impunity in the instant case, provide sufficient security measures to the judicial authorities, prosecutors, witnesses, legal operators, and to the next of kin of Myrna Mack Chang, and resort to all other means available to it so as to expedite the proceeding, as set forth in paragraphs 276 and 277 of the instant Judgment.

unanimously,

7. that the State must publish within three months of notification of the instant Judgment, at least once, in the official gazette “Diario Oficial” and in another national-circulation daily, the proven facts set forth in paragraphs 134; 134.1 to 134.8; 134.10 to 134.19; 134.26; 134.86 to 134.90; and 134.95 to 134.106, without the footnotes, and operative paragraphs 1 to 12, as set forth in paragraph 280 of the instant Judgment.

unanimously,

8. that the State must carry out a public act of acknowledgment of its responsibility in connection with the facts of this case and of amends to the memory of Myrna Mack Chang and to her next of kin, in the presence of the highest authorities of the State, as set forth in paragraph 278 of the instant Judgment.

unanimously,

9. that the State must publicly honor the memory of José Mérida Escobar, police investigator, in connection with the facts of the instant case, as set forth in paragraph 279 of the instant Judgment.
unanimously,

10. that the State must include, in the training courses for members of the armed forces and the police, as well as the security agencies, education regarding human rights and International Humanitarian Law, as set forth in paragraph 282 of the instant Judgment.

unanimously,

11. that the State must establish a scholarship, in the name of Myrna Mack Chang, as set forth in paragraph 285 of the instant Judgment.

unanimously,

12. that the State must name a well-known street or square in Guatemala City after Myrna Mack Chang, and place a plaque in her memory where she died, or nearby, with reference to the activities she carried out, as set forth in paragraph 286 of the instant Judgment.

by seven votes against one,

13. that the State must pay the total sum of US$266,000.00 (two hundred sixty-six thousand United States dollars) or their equivalent in Guatemalan currency, as compensation for pecuniary damage, as set forth in paragraphs 252 to 254 of the instant Judgment, distributed as follows:

a) to Lucrecia Hernández Mack, as the daughter of Myrna Mack Chang, US$235,000.00 (two hundred thirty-five thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 252 and 254 of the instant Judgment;

b) to Lucrecia Hernández Mack, US$3,000.00 (three thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 253.2 and 254 of the instant Judgment;

c) to Zoila Chang Lau, as the widow of Yam Mack Choy, US$3,000.00 (three thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 253.2 and 254 of the instant Judgment; and

d) to Helen Mack Chang, US$25,000.00 (twenty-five thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 253.1 and 254 of the instant Judgment.

Judge Martínez Gálvez partially dissenting.

by seven votes against one,

14. that the State must pay the total sum of US$350,000.00 (three hundred and fifty thousand United States dollars) or their equivalent in Guatemalan currency as compensation for non-pecuniary damage, as set forth in paragraphs 263 to 267 of the instant Judgment, distributed as follows:

a) to Lucrecia Hernández Mack, as the daughter of Myrna Mack Chang, US$40,000.00 (forty thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 263 and 267 of the instant Judgment;

b) to Lucrecia Hernández Mack, US$110,000.00 (one hundred and ten thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 264.a, 264.b, 266 and 267 of the instant Judgment;

c) to Zoila Chang Lau, as the widow of Yam Mack Choy, US$40,000.00 (forty thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 264.a, 264.c and 267 of the instant Judgment;

d) to Zoila Chang Lau, US$40,000.00 (forty thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 264.a, 264.c and 267 of the instant Judgment;

e) to Helen Mack Chang, US$100,000.00 (one hundred thousand United States dollars) or their equivalent in Guatemalan currency, as set forth in paragraphs 264.a, 264.d and 267 of the instant Judgment; and

f) to Marco Mack Chang, Freddy Mack Chang, Ronald Chang Apuy, and Vivian Mack Chang, US$5,000.00 (five thousand United States dollars) or their equivalent in Guatemalan currency, to each of them, as set forth in paragraphs 264.a, 264.e, 264.f, 264.g and 267 of the instant Judgment.

Judge Martínez Gálvez partially dissenting.

by seven votes against one,

15. that the State must pay the total sum of US$163,000.00 (one hundred and sixty-three thousand United States dollars) for legal costs and expenses, and US$5,000.00 (five thousand United States dollars) for future expenses, as set forth in paragraphs 291 and 292 of the instant Judgment, distributed as follows:

a) to the Myrna Mack Foundation, US$145,000.00 (one hundred and forty-five thousand United States dollars), and US$5,000.00 (five thousand United States dollars), to cover the future expenses caused by steps to be taken in connection with the ongoing criminal proceeding to punish all those responsible for what happened to Myrna Mack Chang, as set forth in paragraphs 291.a and 292 of the instant Judgment;

b) to the Lawyers Committee for Human Rights, US$5,000.00 (five thousand United States dollars), as set forth in paragraph 291.b of the instant Judgment;

c) to the law firm Wilmer, Cutler and Pickering, US$5,000.00 (five thousand United States dollars), as set forth in paragraph 291.c of the instant Judgment;

d) to the law firm Hogan & Hartson, US$5,000.00 (five thousand United States dollars), as set forth in paragraph 291.d of the instant Judgment; and

e) to the Center for Justice and International Law (CEJIL), US$3,000.00 (three thousand United States dollars), as set forth in paragraph 291.e of the instant Judgment.

Judge Martínez Gálvez partially dissenting.

unanimously,

16. that the State must pay the total amount of compensation ordered for pecuniary and non-pecuniary damage as well as the legal costs and expenses set forth in the instant Judgment, without any of its items being subject to currently existing or future taxes, levies or assessments.

unanimously,

17. that the State must comply with the measures of reparation ordered in the instant Judgment within a year of the date of its notification, as set forth in paragraph 293 of the instant Judgment.

unanimously,

18. that if the State were to be in arrears, it must pay interest on the amount owed based on the banking interest rate for arrearages in Guatemala, as set forth in paragraph 299 of the instant Judgment.

unanimously,

19. that the Court will monitor compliance with this Judgment and will close the instant case once the State has fully complied with its provisions. Within one year of notification of this Judgment, the State must submit to the Court a report on the measures adopted to comply with it, as set forth in paragraph 300.

Judge Cançado Trindade informed the Court of his Reasoned Opinion, Judge García Ramírez informed the Court of his Reasoned Concurring Opinion, Judge Salgado Pesantes informed the Court of his Reasoned Concurring Opinion, Judge Abreu Burelli informed the Court of his Reasoned Concurring Opinion, and Judge Martínez Gálvez informed the Court of his Reasoned and Partially Dissenting Opinion, which are attached to this Judgment.

Done in Spanish and English, the Spanish text being authentic, in San Jose, Costa Rica, on November 25, 2003.

Antônio A. Cançado Trindade
President

Sergio García-Ramírez Hernán Salgado-Pesantes

Máximo Pacheco-Gómez Oliver Jackman

Alirio Abreu-Burelli Carlos Vicente de Roux-Rengifo

Arturo Martínez-Gálvez
Judge ad hoc

Manuel E. Ventura-Robles
Secretary

So ordered,

Antônio A. Cançado Trindade
President

Manuel E. Ventura-Robles
Secretary