In
the Paniagua Morales et al. case,
the
Inter-American Court of Human Rights, composed of the following judges[1]:
Hernán Salgado-Pesantes,
President,
Antônio A. Cançado
Trindade, Vice-President
Héctor Fix-Zamudio, Judge
Alejandro Montiel-Argüello,
Judge
Máximo Pacheco-Gómez,
Judge
Alirio Abreu-Burelli, Judge, and
Edgar E. Larraondo-Salguero, Judge ad hoc;
also
present,
Manuel E. Ventura-Robles, Secretary, and
Víctor M. Rodríguez-Rescia, Interim Deputy Secretary,
pursuant
to Articles 29 and 55 of the Rules of Procedure of the Inter-American Court
of Human Rights (hereinafter "the Court" or "the Inter-American
Court"), renders the following Judgment in the instant case.
I INTRODUCTION OF THE CASE
1. On January 19, 1995 the Inter-American
Commission on Human Rights (hereinafter "the Commission" or "the
Inter-American Commission") submitted to the Court an application against
the Republic of Guatemala (hereinafter "the State" or "Guatemala")
which originated in a petition (No. 10.154) received at the Secretariat of
the Commission on February 10, 1988. In its application, the Commission invoked
Articles 50 and 51 of the American Convention on Human Rights (hereinafter
"the Convention" or "the American Convention") and Articles
26 et seq. of the Rules of Procedure
then in force[2]. The Commission submitted this case for the Court
to rule on whether Guatemala had violated the Convention by the "acts of abduction, arbitrary detention, inhuman
treatment, torture and murder committed by agents of the State of Guatemala
against eleven victims" during 1987 and 1988 (known as the "white
van case" because that type of vehicle was part of the modus
operandi). Consequently, the Commission requested the Court to rule that
Guatemala violated the following provisions:
Article 4 of the American Convention (Right to Life)
to the detriment of the following victims: Ana Elizabeth Paniagua-Morales,
Julián Salomón Gómez-Ayala, William Otilio González-Rivera, Pablo Corado-Barrientos,
Manuel de Jesús González-López and Erik Leonardo Chinchilla.
Articles 5 (Right to Humane Treatment), 7 (Right
to Personal Liberty) of the American Convention, and the obligations established
in Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish
Torture, to the detriment of Ana Elizabeth Paniagua-Morales, Julián Salomón
Gómez-Ayala, William Otilio González-Rivera, Pablo Corado-Barrientos, Manuel
de Jesús González-López, Augusto Angárita-Ramírez, Doris Torres-Gil, José
Antonio Montenegro, Oscar Vásquez and Marco Antonio Montes-Letona.
Articles 8 (Right
to a Fair Trial) and 25 (Right to Judicial Protection) of the Convention,
which were, and continue to be, violated to the detriment of all the victims
in this case.
Article 1(1) (Obligation
to Respect Rights) as a consequence of the aforementioned failure to provide
the guarantees enshrined in the Convention.
The Commission also asked the Court to require that
the State identify and punish those responsible for the above-mentioned violations,
compensate the victims of those violations pursuant to Article 63(1) of the
Convention, pay them or their relatives the costs and expenses incurred by
them in bringing this case before the Commission and the Court, and pay a
reasonable sum for attorneys’ fees.
II
2. The
Court is competent to hear the instant case. Guatemala has been a State Party
to the Convention since May 25, 1978, accepted the contentious jurisdiction
of the Court on March 9, 1987, and ratified the Inter-American Convention
to Prevent and Punish Torture on January 29, 1987.
III
3. Case
10.154 was initiated by the Inter-American Commission on the basis of a petition
of February 10, 1988, concerning the disappearance of Ana Elizabeth Paniagua-Morales
which had occurred the previous day.
4. On
February 11, 1988, the Commission transmitted the petition in which Ms. Paniagua-Morales’
abduction was denounced to the State and asked it to provide information.
On February 16 of the same year, Guatemala confirmed the victim’s disappearance
and the discovery of her body and reported that the competent authorities
were investigating the case.
5. On
February 11 and March 2, 1988, and February 13, 1989, the petitioners supplied
the Commission with additional information on the circumstances of Ms. Paniagua-Morales’
abduction; in the last communication they denounced the murder of a young
student, Erik Leonardo Chinchilla, which occurred on February 17, 1988, and
later asked for that victim to be included in the case.
6. On
April 23 and May 11, 1990, the State informed the Commission of some progress
made with the investigation of the case and lodged the objection of non-exhaustion
of domestic remedies; it also requested that the case be struck from the Commission’s
list of cases against Guatemala. It reiterated the same request, based on
that argument, on October 3 and 15, 1990.
7. On
September 28, 1990, during its 78th session, and on September 23, 1991, at
its 80th session, the Commission held hearings on the case, which were attended
by representatives of both parties.
8. On
November 28, 1990, the State informed the Commission that the Domestic Judicial
proceedings against Mr. Oscar Augusto Díaz-Urquizú, former Director of the
Treasury Police ["Guardia de Hacienda"], had been dismissed on the
grounds of "insufficient evidence
to try [him] for the crime of abuse
of authority."
9. On
December 30, 1991, the petitioners submitted to the Commission an expanded
list of victims, in keeping with their previous position that the case involved
an indeterminate number of victims. It stated that "five other persons had been abducted and murdered; five others had been
abducted and unlawfully detained. All the additional persons named had been
previously identified as victims in the police and judicial investigation
conducted in Guatemala."
10. On May
14, 1992, the pertinent parts of this communication were transmitted to the
State. Despite two requests for an extension of time for supplying new information
on the case, the State never submitted this information, nor its final comments.
11. On July
23 and again on August 5, 1993, the Commission offered its services to the
parties in order to facilitate a friendly settlement in the case. Both the
State and the petitioners expressed their interest in reaching an agreement
and made various representations to that effect; the former even requested
information as to the potential beneficiaries. However, as of May 1994 the
State ceased to respond favorably to the Commission’s attempts at a friendly
settlement, and on July 28, 1994, the petitioners informed the Commission
that they considered the friendly settlement proceeding to be at an end.
12. On September
11, 1994, five days prior to the final hearing on this case before the Commission,
Mr. Oscar Vásquez, a victim and witness in the case, and his son were murdered.
13. On September
16, 1994, during the 87th Regular Session of the Commission, another hearing
was held at the petitioners’ request and was attended by representatives of
both parties. According to the Commission, "the Government’s final written communication
on the merits of the case" was submitted at that hearing.
14. With
regard to the proceeding before the Commission, the latter pointed out that
"at no time did the Government
dispute the occurrences of the crimes on which this case is based",
but rather merely stated that the domestic remedies were operative and that
the proceeding was at the pre-trial ("sumario") stage.
15. On September
28, 1994, the Commission approved Report 23/94, in the operative part of which
it was decided:
1. To admit the present case.
2. To declare that
the Government of Guatemala has failed to fulfill its obligations to respect
the rights and freedoms contained in the American Convention on Human Rights,
and to ensure their enjoyment as provided for in Article 1 of that instrument.
3. To declare that
the Government of Guatemala violated the human rights of the victims in this
case, as provided for by Articles 4(1), 5(1), 5(2), (7), 24 and 25 of the
American Convention.
4. To recommend
to the Government of Guatemala that it take the following measures:
a. investigate the violations that occurred in this
case and try and punish those responsible;
b. take the necessary measures to avoid the recurrence
of these violations;
c. pay just compensation to the victims’ next of
kin.
5. To
transmit this report to the Government of Guatemala and to provide the Government
with 60 days to implement the recommendations contained herein. The 60-day
period shall begin as of the date
this report is sent. During the 60 days in question, the Government may not
publish this report, in accordance with Article 47(6) of the Commission’s
Regulations.
6. To
submit this case to the Inter-American Court on Human Rights in the event
that the Government of Guatemala should fail to implement all the recommendations
contained herein.
16. The
Commission transmitted this report to the State on October 20, 1994, along
with a request that the State report on the measures taken to resolve the
denounced situation within a 60 day period.
The State did not reply to that request, and did not submit its comments
on Report 23/94 nor ask for it to be reconsidered.
17. On December
13, 1994, the petitioners sent to the Commission a request for precautionary
measures to protect seven members of Oscar Vásquez’s relatives. On the same day, the Commission requested
the State to take all the measures necessary to protect the lives, physical
safety and liberty of the members of the Vásquez relatives named in the request.
IV
18. In accordance
with the decision adopted during its 87th. Regular Session (supra, para. 15(6)), the Commission submitted the application
to the Inter-American Court on January 19, 1995.
19. The
Inter-American Commission appointed Claudio Grossman as its Delegate before
the Court, Edith Márquez-Rodríguez, David J. Padilla, Elizabeth Abi-Mershed
and Osvaldo Kreimer as its Attorneys, and the following persons as its Assistants,
also identifying them as the original petitioners’ legal representatives:
Mark Martel, Viviana Krsticevic, Ariel Dulitzky, Marcela Matamoros, Juan Méndez
and José Miguel Vivanco. By note of March 12, 1996, the Commission informed
the Court that Jean Joséph Exumé had also been designated as its Delegate
for this case, and by note of September 16, 1996, Mr. Juan Méndez withdrew
as representative of the original petitioners.
20. On February
9, 1995, the Secretariat of the Court (hereinafter the "Secretariat"),
on its President’s instructions, informed the Commission that, following the
preliminary examination of the petition, it had been decided that it was not
possible to notify the State of the application, since it did not fulfill
one of the fundamental requirements, namely that some of the evidence listed
in the text of the application had not been submitted to the Court.
21. Once the
Commission had corrected the defects listed in the Secretariat’s letter of
February 9, 1995, the President of the Court (hereinafter "the President")
authorized the processing of the case. By note of March 6, 1995, the State
was officially notified of the application and was granted a period of two
weeks to appoint an Agent and Alternate Agent, three months to reply to the application, and 30 days
to lodge preliminary objections. By another communication of the same date,
the State was invited to appoint a Judge ad hoc.
22. By note
of March 20, 1995, the State designated Mr. Acisclo Valladares-Molina and
Mr. Vicente Arranz-Sanz as its Agent and Alternate Agent respectively, and
on April 19, 1995, it appointed Mr. Edgar Enrique Larraondo-Salguero as Judge
ad hoc.
On August 29, 1995, the State informed the Court of the appointment
of Mr. Alfonso Novales-Aguirre to replace Mr. Larraondo-Salguero as Judge
ad hoc.
By Order of September 11, 1995, the Court decided "to disallow the request for the replacement
of Judge ad hoc Enrique Larraondo-Salguero
by Mr. Alfonso Novales-Aguirre" on the basis of the following considerations:
[t]hat
an ad hoc judge is similar in nature to other
judges on the Inter-American Court, in that he does not represent a particular
government, is not its agent and sits on the Court in an individual capacity, as stipulated
in Article 52 of the Convention, and in accordance with Article 55(4). An
ad hoc judge is required to meet the same
prerequisites as permanent judges. The provision for all permanent and ad hoc judges to sit on the Court in an
individual capacity is based on and must always allow for the need to protect
the independence and impartiality of an international court of justice;
[t]hat
the Statute of the Court establishes the same rights, duties and responsibilities
for all judges, whether permanent or ad
hoc (Article 10(5), in accordance with the provisions from Chapter IV
of the Statute of the Court);
[t]hat
in this specific case, Judge ad hoc
Edgar Enrique Larraondo-Salguero, after being designated and sworn in, joined
the Court as judge, and even participated in the Court’s May 17, 1995
Order concerning the present case. To date the Court is unaware of any factor
that might bar him from serving as ad
hoc judge, and in these circumstances he cannot be replaced; and
[t]hat
the Court also takes note that the person proposed by the Government to sit
as the ad hoc judge was also designated as an
Assistant to the Government for the public hearing on preliminary objections
next September 16, 1995. This fact in and of itself would constitute clear
grounds for incompatibility by virtue of Article 18(c) of the Statute of the
Court, which states that the exercise of the position of judge of the Court
is incompatible with positions and activities "that might prevent the judges from
discharging their duties, or that might affect their independence or impartiality…"
23.
Pursuant to Article 31 of the Rules of Procedure, the State submitted
a brief on April 3, 1995, in which it lodged preliminary objections.
24.
On January 25, 1996, the Court disallowed the preliminary objections
lodged by the State.
25.
On June 2, 1995, the State submitted its answer to the petition, in
which it declared that it respected human rights and had profound faith in
the inter-American system. It also said that a judgment against it would be
"unjust, and discount the State’s attitude toward
the events and its reaction manifest in the Law and through its institutions.
The Commission has disregarded the substantial changes made in its legislation."
It also stated that the State itself had provided the evidence on which the
case is based, thus demonstrating its commitment to human rights. It declared
that "[w]ithout the cooperation
of the State of Guatemala there would be no case to hear, a fact that the
Honorable Tribunal should bear in mind, since the issue is the condemnation
of the State." In its petition,
the State requested that the Court declare "[o]ut of order the petition lodged by the Inter-American
Commission on Human Rights against the State of Guatemala with the Inter-American
Court of Human Rights" and to refuse to award costs.
26.
On September 23, 1995, the President requested that the Inter-American
Commission and the State inform the Court whether they were interested in
submitting, pursuant to Article 29(2) of the Rules of Procedure then in force,
other pleadings in the written proceeding on the merits of this case. The
Commission replied to the request in the affirmative on October 2, 1995; consequently,
the President granted the Commission until December 3, 1995, to submit its
brief in answer, and the State two months from receipt of that document to
submit its brief of rejoinder.
27.
The Commission submitted its brief in answer to the Court in Spanish
on December 15, 1995. On December 18 of that year, the brief was transmitted
to the State, which did not submit its brief of rejoinder to the Tribunal.
28.
On July 9, 1997, the President summoned the representatives of Guatemala
and the Commission to a public hearing to be held at the seat of the Court
on September 22, 1997, in order to hear the statements of witnesses Sonia
Aracelly del Cid-Hernández, María Elizabeth Chinchilla, María Idelfonsa Morales
de Paniagua, Alberto Antonio Paniagua, Jean-Marie Simon, Raquel de Jesús-Solórzano,
Marvin Vásquez, Blanca Lidia Zamora de Paniagua, Julio Enrique Caballeros-Seigne,
Carlos Odilio Estrada-Gil and Felicito Olíva-Arias, all proposed by the Inter-American
Commission; the reports of experts Ken Anderson, Phil Heyman, Robert H. Kirschner,
Roberto Arturo Lemus, Anne Manuel and Christian Tomuschat proposed by the
Inter-American Commission; and the reports of experts Napoleón Gutiérrez-Vargas,
Alberto Herrarte-González, Arturo Martínez-Gálvez and Mario Guillermo Ruíz-Wong,
proposed by the State.
29.
On September 9, 1997, the State submitted to the Court a brief in which
it declared that, for reasons of force
majeure, Mr. Mario Guillermo Ruíz-Wong and Mr. Alberto Herrarte-González
would be unable to appear at the public hearings called by the Court and offered
instead experts Ramiro de León-Carpio and Alfonso Novales-Aguirre, who would
report on the human rights situation in Guatemala, and experts José Francisco
de Mata-Vela, Eduardo Mayora-Alvarado and Carlos Enrique Luna-Villacorta,
who would report on the changes made in Guatemalan legislation by the new
Code of Penal Procedure and on the relevant jurisprudence.
30.
On September 12, 1997, the Inter-American Commission submitted its
position on the State’s new offer of experts made on September 9 of that year.
The Commission stated that it would not contest the appearance of the experts
offered to replace those who, for unforeseen reasons, were unable to appear
before the Court, provided that their reports were restricted to the topics
indicated in the brief in answer to the application. It, however, opposed
as time-barred the proposal of new experts to report on new topics, and, moreover,
argued that there were grounds for the disqualification of one of them and,
that the topics indicated were not germane to the instant Case.
31.
On September 14, 1997, the President decided
1. To reject the offer of Mr. Alfonso Novales-Aguirre
as an expert in this case, on the grounds of his disqualification.
2. To reject the offer of Mr. Ramiro de León-Carpio
as an expert in this case, as time-barred.
3. To accept the offer of Mr. José Francisco de Mata-Vela,
Mr. Eduardo Mayora-Alvarado and Mr. Carlos Enrique Luna-Villacorta as experts
in this case to report on the topics indicated by the State in its answer
to the application.
32.
On September 12, 1997, the Inter-American Commission submitted its
final list of witnesses and experts who could be delivering their testimony
and reports before the Court. In that
communication, the Commission offered Olga Molina and Robert C. Bux, to replace
Roberto Lemus and Robert Kirschner, respectively, as experts witnnesses at
the public hearings called by the Court to hear the merits of the instant
case. On September 14, 1998, the Secretariat transmitted a copy of the Commission’s
brief to the State, and informed the State that it had until September 17,
1997 to submit its comments.
33.
On September 18, 1997, the President decided "[t]o accept the offer of Ms. Olga Molina and Mr. Robert Bux as expert witnesses
in this case." On September
22, 1997, the State appealed the President’s decision and objected to the
experts accepted therein. On September 23, 1997, the Court, in exercise of the powers conferred on it by Article
49(4) of its Rules of Procedure, decided "[t]o hear the opinions of expert witnesses Olga Molina and Robert Bux and
to evaluate them at a later date."
34.
On September 16, 1997, the State objected to
experts Mr. Ken Anderson and Ms. Anne Manuel proposed by the Commission
on the grounds that they lacked the necessary impartiality, since they belonged
to Human Rights Watch/Americas, an organization designated by the Commission
as its Assistant in the instant case. On
the same day the President decided "[t]o
disallow, as time-barred, the objection to Mr. Ken Anderson raised by the
State of Guatemala" and did not rule on the objection to Ms. Anne
Manuel, because the Commission had not included her in the final list of experts
to appear before the Court (supra,
para. 32).
35.
On September 20, 1997, the Commission submitted a new list of witnesses
and experts to appear at the hearings to be held by the Court on the merits
of this case. In the list, it proposed
witness Oscar Humberto Vásquez, to replace Mr. Marvin Vásquez, and Ms. Jean-Marie
Simon, who had been proposed in the brief containing the application but had
not been included in the final list of witnesses and experts originally submitted
by the Commission (supra, para.
32). At the meeting of the Court with the parties on September 22, 1997, the
Agent of the State stated that, in order to expedite the hearings, he would
not object to those witnesses. On the same day the Court decided to accept
the offer of Mr. Vásquez and Ms. Simon to testify.
36.
On September 22, 1997, the State submitted to the Court 13 briefs containing
a total of 38 sets of documents which, in its opinion, constituted supervening
events and which it considered appropriate to place before the Tribunal. On
September 24, after studying the content of those sets of documents, the Court
decided to refer eight of them to the Inter-American Commission, which it
requested to formulate its observations on their inclusion in the inventory
of evidence in the case within seven days. The Court also decided to reject,
as out of order, the other documents presented by the State.
37.
On September 30, 1997, the Commission submitted the brief containing
its observations, in which it requested the Court to "reject the presentation
of documents offered by the Illustrious Government of Guatemala on September
22, 1997, inasmuch as the request that the Court accept them as evidence [was]
clearly time-barred […]."
38.
On October 10, 1997 the President decided to add the following documents
submitted by the State on September 22 to the inventory of evidence in the
instant case:
a- a photocopy of
the file of the investigation conducted in the case of Judge Julio Aníbal
Trejo-Duque, No. 00339-88, of the Criminal Investigation Department of the
Guatemalan National Police;
b- a photocopy of
the file of the Criminal Investigation Department of the Guatemalan National
Police on the investigation into the death of Mr. Carlos Morán-Amaya;
c- a photocopy of
the file of the Criminal Investigation Department of the Guatemalan National
Police on the investigation into the death of Mr. Erik Leonardo Chinchilla;
d- certification
relating to the petition for application of the Law of National Reconciliation
as an incidental question, submitted by Mr. José Antonio Aldana-Fajardo, a
former Treasury Police agent involved in the Paniagua Morales et al. Case;
and rejected, as inadmissible, the other documents
offered at the same time, which had been the subject of the Commission’s observations.
39.
At a public hearing held on September 22, 23 and 24, 1997, the Court
heard the statements of the witnesses and the reports of the experts offered
by the parties.
There
appeared before the Court:
For
the State:
Acisclo Valladares-Molina,
Agent;
Carmela Curup-Chajón,
Alternate Agent;
Guillermo A. Carranza-Taracena,
Assistant;
Acisclo Valladares-Urruela,
Assistant;
César Guillermo
Castillo, Assistant;
Rosa María Estrada-Silva,
Assistant; and
José Miguel Valladares-Urruela,
Assistant.
For
the Commission:
Claudio Grossman, Delegate;
Elizabeth Abi-Mershed, Attorney;
Mark Martel, Assistant;
Viviana Krsticevic, Assistant;
Marcela Matamoros, Assistant; and
Ariel E. Dulitzky, Assistant.
Witnesses proposed by the Commission:
María Idelfonsa
Morales de Paniagua;
Blanca Lidia Zamora
de Paniagua;
Alberto Antonio
Paniagua;
María Elizabeth
Chinchilla;
Raquel de Jesús
Solórzano;
Oscar Humberto
Vásquez;
Jean-Marie Simon;
Julio Enrique
Caballeros-Seigne;
Carlos Odilio
Estrada-Gil; and
Felicito Olíva-Arias.
Experts
proposed by the Commission:
Robert C. Bux;
Ken Anderson; and
Olga Molina.
Experts proposed by the State:
Napoleón Gutiérrez-Vargas;
José Francisco
de Mata-Vela;
Eduardo Mayora-Alvarado;
and
Carlos Enrique
Luna-Villacorta.
Although
the following witnesses and experts were summoned by the Court, they did not
appear to deliver their statements and reports:
Witnesses proposed by the Commission:
Sonia Aracelly del Cid-Hernández, and
Marvin Vásquez.
Experts proposed by the Commission:
Phil Heyman;
Robert H. Kirschner;
Roberto Arturo
Lemus;
Anne Manuel; and
Christian Tomuschat.
Experts proposed by the State:
Alberto Herrarte-González;
Arturo Martínez-Alvarez;
and
Mario Guillermo
Ruíz-Wong.
40.
On October 7, 1997, the State offered the testimony of Mr. Julio Aníbal
Trejo-Duque. The State claimed that although this offer was time-barred, it
was justified by the fact that the witness’s health, which had prevented him
from appearing earlier before the Court, had improved. The State further claimed that Mr. Trejo’s testimony would help
"determine accurately the reasons
why the detention order issued had been revoked, why the judge had not imposed
a prison sentence, and why the preliminary hearings were still open."
41.
On October 13, 1997, the Commission submitted its observations on the
State’s offer. It affirmed that Mr.
Trejo-Duque’s testimony was time-barred, that to accept it would impair the
integrity of the proceeding, and requested that the Court reject it.
42.
On October 16, 1997, the President "[c]all[ed] upon the State of Guatemala to present Mr.
Julio Aníbal Trejo-Duque as a witness in the instant Case." The President also summoned the parties to
a public hearing to be held at the seat of the Court on November 13, 1997,
for the purpose of hearing the witness’ testimony; he further requested them
to present their observations thereon and granted them a term of 15 days for
submitting to the Court in their written closing arguments, any amendments
they deemed necessary.
43.
On October 28, 1997, the Commission requested that the Court postpone
the date for presentation of written closing arguments to give it the opportunity to hear and examine Mr. Trejo-Duque’s testimony.
The State concurred in its observations to the Commission’s request.
Accordingly, the President extended the deadline fixed in his Order
of October 16, 1997, for presentation of written closing arguments and decided
that the new deadline would be one month from the date on which the transcripts
of all the Court’s public hearings were delivered to the parties.
44.
On October 29 the State submitted two briefs in which it requested
the Court to admit four files as part of the evidence. On the same day, at
the President’s instruction, the Secretariat requested the Inter-American
Commission to submit its observations on that offer by November 4, 1997, at
the latest.
45.
On November 4, 1997, the Inter-American Commission declared that the
State’s requests
should
be dismissed because (1) they are clearly time-barred and breach the terms
of Article 43 of the Rules of Procedure of the Court; (2) the State has neither
invoked nor substantiated any argument that the conditions necessary for an
exception to the requirements of Article 43, and (3) the State has not demonstrated
the files’ legal relevance to the merits of the case,
and
requested that the Court reject them. On November 6 of the same year the President
"[r]eject[ed], as inadmissible, the documents
offered by the State of Guatemala on October 30 and 31, 1997, as evidence
in the instant case," since
they had been in the State’s possession since between 1987 and 1989 and there
was no evidence of force majeure
or grave impediment to obtaining them
at an earlier date.
46.
On November 12, 1997, the State submitted two briefs in which it appealed
against the President’s Order of November
6 and requested that "inasmuch
as the documents provided [were] evidence
needed for rendering a correct decision, they be admitted as evidence as a matter of course." On November 14,
1997, the Court decided to uphold the Order appealed on the basis of the following
consideration among others:
[t]hat the Court
endorses the President’s criterion that the time-barred presentation of evidence
is admissible only in "extremely
aggravated circumstances which the State has in no way justified."
In this connection, the State’s claim that "it would be an unacceptable fiction to claim that the Principal Agent
of the State of Guatemala knew or was aware of everything" is inadmissible,
since the Rules of Procedure grant the respondent State, represented by its
Agent, sufficient time in which to prepare its defense.
47.
On November 13, 1997, the Court heard the statement of witness Julio
Aníbal Trejo-Duque at a public hearing.
There
appeared before the Court:
For the State:
Acisclo Valladares-Molina,
Agent;
Carlos Augusto
Orozco-Trejo, Alternate Agent;
Guillermo A. Carranza-Taracena,
Assistant;
Acisclo Valladares-Urruela,
Assistant;
César Guillermo
Castillo, Assistant;
Rosa María Estrada-Silva,
Assistant; and
José Miguel Valladares-Urruela,
Assistant.
For
the Commission:
Elizabeth Abi-Mershed, Attorney;
Marcela Matamoros, Assistant; and
Mark Martel, Assistant.
48. On November
13, 1997, the State submitted two briefs in which it offered as evidence socioeconomic
studies of the victims and their families, requesting that they be admitted
as evidence. On the following day the Court decided "[t]o
reject, as out of order, the inclusion of [those]
studies as evidence in the merits of the instant case."
49.
On the same day the State submitted to the Court its comments on the
testimony given by Mr. Julio Aníbal Trejo-Duque. Guatemala stated that
[t]he
statement by Judge JULIO ANÍBAL TREJO-DUQUE demonstrates, once more, that
there are two clearly differentiated groups of persons connected with this
case. Group I, composed of AUGUSTO ANGÁRITA-RAMÍREZ, DORIS TORRES-GIL, JOSÉ
ANTONIO MONTENEGRO, OSCAR VÁSQUEZ and MARCO ANTONIO MONTES-LETONA, prosecuted
in the courts of justice and submitted to judicial proceedings, as stated
in acts and illustrated in Judge Trejo-Duque’s testimony. There is, at the
same time, a second group quite different to the first, composed of JULIÁN
SALOMÓN GÓMEZ-AYALA, ANA ELIZABETH PANIAGUA-MORALES, PABLO CORADO-BARRIENTOS,
ERIK LEONARDO CHINCHILLA, MANUEL DE JESÚS GONZÁLEZ-LÓPEZ and WILLIAM OTILIO
GONZÁLEZ-RIVERA, individuals abducted and murdered by unknown persons unknown.
50.
On November 26, 1997, of that year the Commission reported that in
the event of the Court’s accepting the brief containing the State’s comments
on Mr. Trejo-Duque’s testimony, it would request the procedural right to also
submit its observations on that testimony. The President granted a period
for presentation of those comments until December 19, 1997, on which date
the Commission submitted the brief in question to the Court in English, followed
by the Spanish translation on January 9, 1998.
51.
On December 10, 1997, and February 4, 1998, the State requested the
Court to admit, as of right, the documents rejected by the President on November
6, 1997 (supra, para. 45) and by
the Court on November 14, 1997 (supra,
para. 46). The Commission submitted its comments on the State’s first petition
on January 6, 1998, requested that note be taken of the fact that it had still
not received a copy of the documents referred to in those briefs and, with
regard to the merits, stated that
it
categorically reject[ed] the requests submitted by the Government of Guatemala
[and that as] the Agent of the State had presented no reason to justify the
Honorable Court’s reconsideration of its previous decision to reject those
offers (see the two Orders of the Honorable Court
of November 14, 1997), it is evident that repetition of these requests breaches
the principle of judicial economy (sic). The Commission considers that the
Illustrious Government’s reiteration of the request makes a mockery of the
most basic rules of due process.
On
January 7, 1998, the Secretariat, at the President’s instruction, informed
the Commission that it had not received the documents referred to, since they
do not appear in the file of the instant case, having been rejected by the
Court’s two Orders of November 14, 1997. On February 9, 1998, the Secretariat,
at the President’s instruction, informed the State and the Commission that
the former’s petitions were to be brought to the attention of the Court at
its XXIII Special Session to determine what, if any, action would be appropriate
(infra, para. 53).
52.
On January 6, 1998, the State and the Inter-American Commission submitted
their briefs of closing arguments to the Court. The Commission’s brief was
submitted in English, and the Spanish
translation followed on January 6, 1998.
53.
On March 3, 1998, the State requested the Court to entrust one or more
of its members with the task of conducting, on Guatemalan territory, a judicial
inspection of the files it had previously offered as evidence (supra, para. 44). It also repeated its request of December 10,
1997, and January 6 and February 4, 1998 (supra,
para. 51), and asked the Court to note that it had an amicus curiae brief in its possession. This last petition was rejected
by the Court on March 4, 1998. With regard to the other requests, the Court
referred to the decision contained in its Order of November 14, 1997 (supra, para. 46.[3])
V
54.
On October 3, 1997, the Inter-American Commission informed the Court
that Mr. Felicito Olíva-Arias, who testified at the public hearings on this
case, had received a death threat from Mr. Oscar Augusto Díaz-Urquizú, former
Director of the Treasury Police of Guatemala, hours after presenting his evidence
at the seat of the Court in San José, Costa Rica.
55.
On October 6, 1997 the Secretariat, at the President’s instruction,
informed the State that it had until October 10 of that year to submit any
information in its possession on the facts denounced by the Commission. On October 9, the State reported that it had
taken steps to protect Mr. Olíva-Arias’s safety and submitted to the Court
a copy of some documents relating to the accusation he had filed in the Costa Rican courts against Mr. Díaz-Urquizú. On
the next day, the State submitted a report from the Presidential Coordinating
Commission on Executive Human Rights Policy on Mr. Olíva-Arias’s situation.
On October 29 the State informed the Court that Mr. Olíva-Arias was being
protected by the Guatemalan National Police Department.
56.
On February 5, 1998, the Commission requested the Court, pursuant to the provisions
of Article 63(2) of the Convention and Article 25 of the Rules of Procedure,
to adopt "provisional measures to protect the life and
physical integrity of members of the Vásquez family, including Oscar Humberto
Vásquez, Raquel Solórzano, Thelma Judith de Vásquez, Marvin Vásquez and Lydia
de Vásquez." The Commission stated that the request was made
in relation to two cases: the instant case and that of Vásquez et al. (No. 11.448) before the Commission.
As the basis for its request, the Commission stated that
[o]n
January
24, 1998, Mr. Oscar Humberto Vásquez, son of Mr. Oscar Vásquez (a victim in
the "white van" case) and a witness who had testified
before the Honorable Court in September 1997, was unlawfully detained by a
group of three unknown men, who attacked him violently and threatened his
life.
The
Commission also said that Mr. Vásquez had been threatened, that the Office
of the Department of the District Attorney ["Ministerio Público"]
had refused to accept a complaint about the events, and that the precautionary
measures adopted to protect the members of the Vásquez family (supra,
para. 17) had not yielded satisfactory results.
57.
On February 10, 1998, the President required the State to adopt such
measures as were necessary to ensure the physical integrity of the members
of the Vásquez family and to investigate the attack on Mr. Oscar Humberto
Vásquez.
58.
On February 16, 1998, the State submitted its first report on the measures
adopted in compliance with the Order of the President. On February 19, the
Secretariat, at the President’s instruction, requested the State to submit
forthwith to the Court documents containing the results of the action taken
to protect the Vásquez family, especially those contained in points one and
four of its report. On the following day, the State submitted another document
also titled as the first report on the measures adopted in this case.
VI
59. The significant documentary evidence in
this case includes, first of all, the extensive report prepared by the National Police of Guatemala, C.A. dated June 6, 1988, and dispatched to the Judge of
the Magistrates' Court of Santa Catarina Pinula, Zone 14, through official
communication No. 3214. Subsequently, at the public hearing before the Court,
the report was acknowledged by those who had ordered the investigation at
the time of the events (infra, para.
67 (h) and (p)).
60. In that report, the National Police gave an account of the investigation conducted in connection with the operation carried out on March 10, 1988, at kilometer 12 and 1/2 on the highway leading