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
to El Salvador. In that operation,
a white Ford van was seized with the following on board: Aníbal René Morales-Marroquín,
Manuel de Jesús de la Cruz-Hernández, César Augusto Guerra-Ramírez, Neftalí
Ramírez-García, Igloberto Pineda-Juárez and Juan José Elías-Palma, members
of the Treasury Police indicated in the report as "the persons allegedly responsible for the abduction
and murders" of the victims.
61. At the same time as the report, the Police
delivered to the magistrate the vehicle described above, together with two
others, "claiming that criminal
acts had been committed on board them." The vehicles were: a white Ford Econoline 350 van; a white Nissan
Cherry Vanette private minibus and a beige Chevrolet Chevy Van 20, with brown
borders, at that time painted all
brown.
62. The conclusions reached by the police investigators
in that report were as follows:
1) The white FORD ECONOLINE 350 van with tinted windows was detained on
March 10, 1988, at kilometer 12 and 1/2 on the El Salvador highway, following
many complaints to the country's authorities that a series of criminal acts
had been committed in it.
2) Following an exhaustive investigation by the NATIONAL POLICE DEPARTMENT,
it was reliably concluded and proven that on March 10, 1988, at kilometer
12 and 1/2 on the highway leading to El Salvador, no operation had been ordered
by the "INAFOR" [National Forestry Institute], "DIGESEPE"
[Department of Cattle Services] or any other State body.
3) The aforementioned white van had, days before it was detained, been
driven without registration plates or any identifying documentation.
4) Some of the six MEMBERS OF THE TREASURY POLICE inside the detained
white van were recognized as perpetrators of criminal acts.
5) The statements of the six members of the Treasury Police seriously
contradicted one another as to their reason for being in the white van at
the spot where the vehicle was detained.
6) Some of the six members of the Treasury Police perjured themselves
by saying that it was the first time they had gone out on operations in the
white van.
7) The six members of the Treasury Police contradicted one another, some
saying that they had carried out an operation and others saying that they
had not. They did not even know what kind of barriers or signals should be
used.
8) CÉSAR AUGUSTO GUERRA-RAMÍREZ, a member of the Treasury Police who was
inside the captured white van, stated that some members of the Treasury Police
Department used knives or razors as part of their equipment.
9) The corpses of five of the six persons kidnapped and later killed showed
knife wounds as the cause of death.
10) Some members of the Treasury Police were recognized as having made
arrests in civilian or sports clothes.
11) After making arrests, members of the Treasury Police tortured their
detainees and robbed them of valuables.
12) Both the white FORD ECONOLINE 350 van with tinted windows and the beige
CHEVROLET CHEVI VAN 20 with brown stripes, now painted brown by the Treasury
Police, had been unlawfully obtained by that Institution, having been taken
from the storage where they were kept.
13) The white FORD ECONOLINE 350 van with tinted windows had entered Guatemalan
territory with clear glass which had been tinted by the Treasury Police for
reasons unknown.
14) Both the white and the beige van, now painted brown, had transported
a large amount of merchandise to the Tecúm Umán customs post in Guatemala
with an unknown destination.
15) The Treasury Police Department has been illegally using fourteen registration
plates belonging to private citizens, including two foreign plates, as seen
in the Reserve Guard log.
16) The Treasury Police said that, owing to an oversight, the white van
had no rear registration plate on March 10, 1988; but that vehicle was also
photographed on March 8, 1988, by the SECOND INTELLIGENCE SECTION OF THE MINISTRY
OF DEFENSE in the vicinity of the Treasury Police without a rear registration
plate.
17) It is untrue that the Treasury Police detained vehicles at the place
where they had been detained in the white van since the three arrests indicated
were made by different Treasury Police than those detained at kilometer 12
and 1/2 on the El Salvador highway, and had taken place in Zone 10 of the
city.
18) The Treasury Police states that the beige CHEVROLET CHEVY VAN 20 was
not used in its operations, but that is untrue because in the log the vehicle
appears as having gone out on operations after it had been painted brown to
hide its original color.
19) The white NISSAN CHERRY VANETTE minibus, registration number P‑89324,
property of AUTORENTAS, S.A., was also used by the Treasury Police and was
involved in the abduction of one of the six murder victims, as appears in
the log.
20) Investigations reveal that the TREASURY POLICE DEPARTMENT has been
operating on the margins of the law, abusing its power to the detriment of
the people and violating human rights.
(cfr.
Police report, official communication No. 3214 Ref. BIEN. FOA/rrh, of June
6, 1988, signed by Felicito Olíva-Arias, Chief of the Special Investigations
and Narcotics Brigade of the National Police; by the captors Infantry Colonel
[Dem]. Julio Enrique Caballeros-Seigne, Director General of the National Police;
Amado de Jesús Campos-Monterroso, Francisco Castañeda-Espino, Fausto Enrique
Meda-Navarro, Rubén Darío González-Escobar, Orlando Hernández-Ascencio, Francisco
Javier-Cameros, José Arturo Trabanino-Morales; by investigators Reinaldo Rodríguez-Hernández,
Chief of the Homicide Section, Edwin Gudiel-Alveño, Eusbaldo Morales-Marroquín,
José Eduardo Cabrera, Miguel Wilfrido Santelis-Barillas, Manuel Alfonso Pinto-Martínez,
Carlos René Juárez-Hernández, Francisco Domingo Cipriano S., Sonia Aracelly
del Cid-Hernández and Rudy Alex Miranda-Ramírez).
63. Attached to the aforementioned report, the
Police submitted documentation relating to the following: the alleged abduction
and murder of each one of the victims; the detention and introduction into
the white van; the investigation into registration plates used by the Treasury
Police, many of which belonged to vehicles owned by individuals and private
firms. Also attached to the report,
as evidence, were six cassette tapes containing the statements of six members
of the Treasury Police and the Treasury Police Department "Log"
for January 22 to March 20, 1988. There were contradictions and inaccuracies in the statements of the
six members of the Treasury Police; in their statements to the examining magistrate
in the case they denied everything, including their presence in the van on
the day and at the time of its seizure by the Police.
(cfr.
Police report, official communication No. 3214 Ref. BIEN. FOA/rrh, of June
6, 1988, signed by Felicito Olíva-Arias, Chief of the Special Investigations
and Narcotics Brigade of the National Police; questionnaire for the interviews
with the members of the Treasury Police detained on March 10, 1988; statement
of César Augusto Guerra-Ramírez, delivered to the Chief of the Special Investigations
and Narcotics Brigade of the National Police, Felicito Olíva-Arias, on April
13, 1988; statement of Neftalí Ramírez-García, delivered to the Chief of the
Special Investigations and Narcotics Brigade of the National Police, Felicito
Olíva-Arias, on April 13, 1988; statement of Manuel de Jesús de la Cruz-Hernández,
delivered to the Chief of the Special Investigations and Narcotics Brigade
of the National Police, Felicito Olíva-Arias, on April 13, 1988; statement
of Aníbal René Morales-Marroquín, delivered to the Chief of the Special Investigations
and Narcotics Brigade of the National Police, Felicito Olíva-Arias, on April
13, 1988; statement of Juan José Elías-Palma, delivered to the Chief of the
Special Investigations and Narcotics Brigade of the National Police, Felicito
Olíva-Arias, on April 13, 1988; statement of Igloberto Pineda-Juárez, delivered
to the Chief of the Special Investigations and Narcotics Brigade of the National
Police, Felicito Olíva-Arias, on April 13, 1988; statement of José Luis Grajeda-Beltetón,
delivered to the Seventh Court of Criminal First Instance of Guatemala on
July 19, 1988; statement of Neftalí Ramírez-García, delivered to the Seventh
Court of Criminal First Instance of Guatemala on July 19, 1988; statement
of Igloberto Pineda-Juárez, delivered to the Seventh Court of Criminal First
Instance of Guatemala, on July 19, 1988; statement of César Augusto Guerra-Ramírez,
delivered to the Seventh Court of First Criminal Instance of Guatemala on
July 19, 1988; statement of Manuel de Jesús de la Cruz-Hernández, delivered
to the Seventh Court of Criminal First Instance of Guatemala on July 19, 1988;
statement of Juan José Elías-Palma, delivered to the Seventh Court of Criminal
First Instance of Guatemala on July 19, 1988, and statement of Aníbal René
Morales-Marroquín, delivered to the Seventh Court of Criminal First Instance
of Guatemala on July 19, 1988).
64. During the public hearings held at the Court
on September 22, 23 and 24, 1997, this report was ratified in all its parts
by witnesses Julio Enrique Caballeros-Seigne and Felicito Olíva-Arias, who
at the time of the acts being tried were, respectively, Director-General of
the National Police and Chief of the Special Investigations and Narcotics
Brigade of the National Police (infra,
para. 67 (h) and (p)).
65. The aforementioned police report, and the
conclusions the police arrived at, was based on numerous prior police reports
prepared on the basis of the initial investigations into the acts sub judice, including personal testimony.
66. The Court deems it useful to summarize some
of those statements, and to also include the autopsy reports on the murdered
persons as well as reference to other evidence.
1. Concerning Mr. Julián Salomón Gómez-Ayala:
a. Following
the complaint lodged by Ms. Bertha Violeta Flores-Gómez, the victim's companion,
investigators from the Homicide Section of the National Police, Rudy Alex
Miranda-Ramírez and Edwin Gudiel-Alveño, went to the place from which Mr.
Julián Salomón Gómez-Ayala had disappeared at Ferrocarril Avenue and 35th
Street. There they conducted "door-to-door
interrogations throughout the neighborhood and were helped in their inquiries
by Mr. PEDRO VÍCTORIO", who informed them that a woman he knew only
as "María", who worked at a "tortillería" shop two blocks
from the site of Mr. Gómez’s abduction, told him that she had seen a man kidnapped
there and taken away in a "white
van."
(cfr. Police report of March 21, 1988, signed by Rudy
Alex Miranda-Ramírez, Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández,
Chief of the Homicide Section of the National Police).
b. The
investigators went to the "tortillería" shop, identified Ms. Josefa
González-Rivera as the woman known as "María" and questioned her.
She told them that on June 2 (sic), 1987, she was walking towards the "El
Guarda" market when, on reaching 3rd Avenue, between 4th and 5th Streets,
she saw "a white truck without
windows" with small light blue letters on its rear. The vehicle stopped
in front of a bar and about five young men carrying firearms got out and forced
into the vehicle a man she did not know who was walking along 3rd Avenue.
Ms. González-Rivera also testified that about three days later she met the
kidnapped man's wife and mother and told them what she had seen.
(cfr. Interview with Josefa González-Rivera, alias "María",
contained in police report of March 21, 1988, signed by Rudy Alex Miranda-Ramírez,
Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández, Chief of the Homicide
Section of the National Police).
The investigators asked Ms. González-Rivera to help
them identify the white van, which was parked in the National Police compound.
She said that the vehicle was different to the one used in Mr. Gómez's detention,
but was of the same color and type. Ms. González-Rivera also did not recognize
the photographs of the members of the Treasury Police since, as she explained,
she had not observed any of the men who detained Mr. Gómez-Ayala because she
had poor vision and it had all happened rather suddenly.
(cfr. Police report of March 21, 1988, signed by Rudy
Alex Miranda-Ramírez, Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández,
Chief of the Homicide Section of the National Police; identification by Ms.
Josefa González-Rivera at the Headquarters of the National Police of Guatemala
C.A., contained in report No. "3" of the Guatemalan National Police
Homicide Squad of March 22, 1988, signed by Rudy Alex Miranda-Ramírez, Edwin
Gudiel-Alveño and Reinaldo Rodríguez-Hernández, Chief of the National Police
Homicide Squad).
c. Ms.
Bertha Violeta Flores-Gómez, Mr. Gómez-Ayala’s companion, recounted that an
unknown individual informed her that Mr. Gómez "had been abducted and put inside a white van, [... that the van ...]
had tinted windows" and that
"no one had come to look for"
the victim, with the exception of an acquaintance who answered to the nickname
of "the Colonel." Ms. Flores did not recognize any of the photographs
of six Treasury Police agents she was shown.
(cfr. Statement of Ms. Bertha Violeta Flores-Gómez, delivered
through record at the Special Investigations and Narcotics Brigade of the
National Police Department on May 5, 1988).
d. Ms.
Blanca Alicia Ochaeta-Corzo de Ortiz, Mr. Gómez Ayala's landlady, delivered
three statements: one during questioning by Police Officer II Reinaldo Rodríguez-Hernández
at the Observation Room of the IGSS General Hospital on April 16, 1988; the
other two through affidavits at the Special Investigation and Narcotics Brigade
of the National Police Department on April 28 and May 20, 1988.
In her testimony of April 28, 1988, she said that
in 1986 she had as tenants the victim, his companion Bertha Violeta Flores-Gómez
and their small son; that Gómez-Ayala’s companion told her that he had been
abducted by individuals "in a white
van;" that eight days after the kidnapping three individuals arrived
on three consecutive days and were let in by Ms. Flores-Gómez, as if she knew
them. To the witness’s remark that
she disapproved of that sort of visitor, Ms. Flores-Gómez replied that she
received them because "one of them
was known as ‘the Colonel’, that the other two were his employees and that
he had reassured her and offered to locate her husband and bring him back." Those three individuals arrived on three
successive days; on one occasion "the Colonel" was wearing green
uniform trousers similar to those worn by the army.
She was shown photographs of the white Ford "van"
but did not recognize it. On the other hand, she "was absolutely sure" that she recognized
two photographs: one, of the person known as "the Colonel," which
was a photograph of Aníbal René Morales-Marroquín, and another of Manuel de
Jesús de la Cruz-Hernández. Both of
these men were members of the Treasury Police.
(cfr. Statement of Ms. Blanca Alicia Ochaeta-Corzo de
Ortiz, delivered through affidavit at the Special Investigations and Narcotics
Brigade of the National Police Department on April 28, 1988).
In her testimony of May 20, 1988, she repeated what
she had stated earlier and, having been shown thirty-two photographs of persons
in police uniform, she recognized the following: Edwin Arturo Pineda-Hichus
(sic), José Luis Grajeda-Bentetón, Douglas Rafael Meneses-González, Manuel
de Jesús de la Cruz-Hernández and Aníbal René Morales-Marroquín.
She said that she had already recognized the last two in another proceeding. She also pointed out that the first three photographs
"[were] of persons who came to
visit Mr. JULIÁN SALOMÓN GÓMEZ-AYALA before his abduction."
(cfr.
Statement of Ms. Blanca Alicia Ochaeta-Corzo
de Ortiz, delivered through affidavit at the Special Investigations and Narcotics
Brigade of the National Police Department on May 20, 1988).
e. Autopsy
report, official communication No. DI-19/87 of June 18, 1987, containing the
results of the autopsy carried out on the body of Mr. Julián Salomón Gómez-Ayala,
read as follows:
LESIONS: wound produced
by contusion on the nose with ecchymosis and slight swelling. Grazing on the
left knee. Indentation produced by the tying of both wrists. Indentation from
hanging around the entire neck of 0.5 cm, hyper-pigmented. A wound produced
by a short, blunt object on the front left of the neck measuring eleven by
six centimeters exposing muscle and cervical organs. Wound produced by a sharp
object on the front thorax, in the form of a cross, the vertical line measuring
thirty-one centimeters and the horizontal twenty centimeters, affecting only
the dermal tissue.
The conclusions are:
a) Asphyxiation by hanging; b) penetrating neck wound produced by a short,
blunt object; c) the findings described. ------------------------------CAUSE
OF DEATH: a) asphyxiation by hanging; b) penetrating neck wound produced by
a short, blunt object.
(cfr. Forensic autopsy report, official communication
DI-19/87 of June 18, 1989).
f. Expert
Robert C. Bux referred to this document in his report delivered at the public
hearing before the Inter-American Court on September 23, 1997 (infra, para. 67(l) (1)).
2. Concerning Mr. Augusto Angárita-Ramírez
and Ms. Doris Torres-Gil:
a. Mr.
Angárita-Ramírez made two statements at the "Pavón" rehabilitation
model farm on May 5 and June 15, 1988, respectively.
In the first statement, Mr. Angárita said that he
was detained at approximately 1.00 p.m. on December 29, 1987, together with
his female companion, Ms. Doris Torres-Gil, by agents of the Treasury Police
wearing green uniforms and driving a white van with tinted windows, in which
he and his companion were taken to the offices of the Treasury Police. There the Director-General of that body, Mr.
Oscar Augusto Díaz-Urquizú, ordered three policemen to take him away and force
him to confess to a crime he had not committed. He said that he was handcuffed, ordered to lie face down on the
floor and felt a man kneel on his back, is nose and mouth were covered with
a thick plastic sheet which prevented him from breathing, while his head was
bent back and his legs folded under him.
He had been beaten and subjected to painful treatment. A guard had the television on at full volume so that the screams
of those being tortured would not be heard. He said that the Treasury Police
took away his belongings, that these had not been handed over to the Tribunal,
and that they had therefore been taken by the Police. When he was shown photographs
of the white "van" with tinted windows, a 1981 Ford Econoline 350,
chassis No. IFTJE3460BHA37911, he recognized it as the one used in his
capture.
(cfr. Affidavit signed by Augusto Angárita-Ramírez at
the "Pavón" Rehabilitation Model Farm on May
5, 1988).
In his second statement, Mr. Angárita-Ramírez said
that when he was captured he was ordered to place his hands behind his back
so that he could be handcuffed and to lie face down on the ground; a plastic
hood was placed over him so that he could not breathe, while he was kicked
in the ribs and his legs folded forward; he was hit on the hands, feet and
genitals and threatened with electric shocks.
He realized that other people were being tortured in the room and their
belongings had been taken away; he was later taken to the Second Precinct
of the National Police, together with Ms. Torres-Gil and others.
(cfr. Statement of Augusto Angárita-Ramírez to the Seventh
Court of First Criminal Instance, delivered at the "Pavón" Rehabilitation Model Farm on June
15, 1988).
b. Ms.
Doris Torres-Gil, referred to in some documents as Mr. Angárita-Ramírez’s
wife and in others as his companion, made two statements, one on June 15 and
the other on June 23, 1988, before the Seventh Judge of Criminal First Instance.
In her first statement, Ms. Torres-Gil said that
she was apprehended on December 29, 1987, by uniformed members of the Treasury
Police and transported in a white "van" about which she knew no
other details. She said that she was taken with Mr. Angárita-Ramírez to the
offices of the Treasury Police, where they were separated. When she next saw her husband his mouth was bleeding, he was handcuffed
and showed signs of torture. She said that her belongings were stolen from
her, that sexual advances had been made to her, and that she was taken to
the Santa Teresa prison, where she was held.
(cfr. Statement of Doris Torres-Gil to the Seventh Judge
of Criminal First Instance on June 15, 1988).
In her expanded statement delivered to the same court
on June 23, 1988, Ms. Torres-Gil recognized the white van in photographs relating
to the case, which she was shown, and also recognized photographs of Treasury
Police agents Francisco Javier (illegible), Manuel Castañeda-Obua, Miguel
Humberto Aguirre-López and Hugo Silva-Morán, against whom she brought a formal
accusation.
(cfr. Expanded statement delivered to the Seventh Judge
of Criminal First Instance by Doris Torres-Gil on June 23, 1988).
Mr. Angárita and Ms. Torres both filed complaints
with the Office of the Ministry of Interior (Ministerio de Gobernación) and
the Procurator for Human Rights of Guatemala, in which they reiterated their
previous statements.
(cfr. Complaint by Augusto Angárita-Ramírez and Doris
Torres-Gil to the Office of the Ministry of Interior (Ministerio de Gobernación)
of Guatemala and complaint of Augusto Angárita-Ramírez and Doris Torres-Gil
to the Human Rights Procurator of Guatemala, on April 26, 1988).
c. The
then Judge in the case, Mr. Julio Aníbal Trejo-Duque, in his testimony to
the Inter-American Court referred to the statements delivered by Mr. Angárita-Ramírez
and Ms. Torres-Gil (infra, para.
68).
d. In
official communication No. F-1580. I-613-88, Dr. Mario Alfredo Porres O.,
Forensic Expert of the Judiciary of the Republic of Guatemala, reproduced
the results of a physical examination conducted on Mr. Angárita-Ramírez on
December 30, 1987, in response to a request from the Eleventh Criminal Magistrates’
Court, with the following results: superficial chafing at the level of the
intermediate line of the rear thorax, the radial and cubital regions of the
wrists and the radial region of the first phalanx of the right hand’s index
finger. Bruises and chafing of the
side region of the thorax and abdomen. CONCLUSIONS: a) requires seven days
of medical treatment, as of the date in which the injuries were suffered.
b) five-day leave of regular occupations. c) no operational impediment, deformity
or permanent face scar will derive from the depicted injuries […].
(cfr. Official communication No. F-1580. I-613-88 of
June 15, 1988, issued by Doctor Mario Alfredo Porres O., Forensic Expert of
the Judiciary of the Republic of Guatemala, addressed to the Seventh Criminal
Court of First Instance, single folio).
e. Expert
Robert C. Bux informed the Court that he had reviewed the document on Mr.
Angárita-Ramírez’s injuries (infra,
para. 67 (l) (2)).
f. The
following information was entered in the Log of the Treasury Police Intelligence
and Narcotics Squad of Guatemala City for December 29, 1987:
CAPTURE, CONFISCATION
AND REMAND: At 23:00 hours [on December 29
1987], members of the Treasury Police serving in this Squad, on the public
thoroughfare of 6th Avenue "A" between
10th and 11th Streets in Zone 1 of this capital city, in front of the
San Luis car park, captured AUGUSTO ANGÁRITA-RAMÍREZ, JOSÉ ROLANDO AGUIRRE-AVELAR,
CÉSAR AUGUSTO CALDERÓN (no other surname) and the following women: DORIS TORRES-GIL
and GLADYS ANGEOLINA GARCÍA-ROSALES, having surprised them in flagrante
delicto as they hastily and suspiciously attempted to abandon the following
vehicles: a 1982 black Mazda 323, with registration No. P-225584, chassis
No. BD1011-538478, engine No. E1-125254, and a red 1974 Toyota pickup with
black and gray stripes, registration No. P-93167, chassis No. Kp36-0627, engine
No. 2K-0490480, for which reason the captors decided to conduct a detailed
search of those persons and of the vehicles described above, and seized from
Ms. García-Rosales a package containing TWO (2) pounds and TWO (2) ounces
of the drug "COCAINE" which she had hidden under her
blouse; from Mr. Calderón (no other surname) an office-sized folder with various
documents, which showed that he forged papers and conducted illicit transactions;
from Mr. Angárita-Ramírez was seized a package containing TWO (2) pounds and
FOUR (4) ounces of the drug "COCAINE" in a red nylon bag; from Mr. Aguirre-Avelar was seized
HALF an ounce of the drug "COCAINE", TWO (2) ounces of marijuana, and cocaine-inhaling implements,
for which reason they were detained and the aforementioned drugs were seized
and those responsible subsequently brought before the authorities of the Eleventh
Criminal Magistrates’ Court for legal proceedings. The aforementioned cocaine
and vehicles were placed at the disposal of that Tribunal, the cocaine was
kept at the Squad in my charge and the vehicles placed in the courtyard
of the Treasury Police Department, for consequent proceedings.
(cfr. Log of the Intelligence and Narcotics Brigade of
the Treasury Police of the city of Guatemala for the month of December 1987).
3. Concerning Ms. Ana Elizabeth Paniagua-Morales:
a. Ms.
María Idelfonsa Morales de Paniagua, mother of victim Ana Elizabeth Paniagua-Morales,
reported her daughter’s disappearance to the Anti-Kidnapping Squad of the
Special Investigations and Narcotics Brigade of the National Police on February
9, 1988.
(cfr. Police report of February 15, 1988, signed by the
Acting Chief of the Anti-Kidnapping Squad of the Special Investigations and
Narcotics Brigade of the National Police).
She also testified before the Inter-American Court
(infra, para. 67 (d)).
b. Ms.
Blanca Lidia Zamora de Paniagua, wife of the brother of victim Ana Elizabeth
Paniagua-Morales, was questioned at her home by investigators Domingo Cipriano-Santos
and Ana Aracelly del Cid-Hernández of the Anti-Kidnapping and Extortion
Squad of the Special Investigations and Narcotics Brigade of the National
Police on February 9, 1988.
(cfr. Police report of February 15, 1988, signed by the
Acting Chief of the Anti-Kidnapping Squad of the Special Investigations and
Narcotics Brigade of the National Police).
She also testified before the Inter-American Court
(infra, para. 67 (b)).
c. Mr.
Eugenio Ruano, a neighbor of Ms. Ana Elizabeth Paniagua-Morales, was questioned
by the aforesaid investigators on February 9, 1988. In his statement Mr. Ruano
said that he saw "the individuals
when they were kidnapping" Ms. Paniagua-Morales and that they were
wearing casual clothes (shorts and sandals). Mr. Ruano also said that he did
not know the reasons for the abduction or anything about the kidnappers or
the plates on the vehicle they used.
(cfr. Interview with Eugenio Ruano contained in police
report of February 15, 1988, signed by the Acting Chief of the Anti-Kidnapping
Squad of the Special Investigations and Narcotics Brigade of the National
Police).
d. The
report of the National Police of Guatemala
C.A. of June 6, 1988, stated that Ms. Felipa Aguirre-González de Celada
testified, through affidavit of April 29, 1988, that "individuals in a white Ford van abducted Ana
Elizabeth Paniagua-Morales."
(cfr. Police report, official communication No. 3214
Ref. BIEN. FOA/rr, of June 6, 1988, signed by Felicito Olíva-Arias, Chief
of the Special Investigations and Narcotics Brigade of the National Police,
p. 5).
e. The
police report of February 12, 1988, list the examination of a woman’s body
found at kilometer 1 and 1/2 at the entrance of the highway leading to the
Municipality of Palencia. The report describes the cause of death as stab
wounds to the left side of the neck and right cheek, possibly inflicted with
a bladed weapon.
(cfr. Police report of February 12, 1988, signed by investigator
Julián (illegible) López of the Section on Crimes Against the National Heritage
of the National Police).
f. The
results of the autopsy on Ms. Paniagua-Morales’s corpse include:
LESIONS: wound produced by a sharp,
pointed weapon 18 cm long by 7 cm wide inflicted on the front and left side
of the neck, affecting the skin, subcutaneous tissue, muscles, trachea, outer
carotid artery and jugular vein on the left side […] CONCLUSIONS: a)- Hypovolemic
shock; b)- penetrating neck wound made by a sharp, pointed weapon; c)- perforation
of the trachea; d)- perforation of the veins on the left side of the neck.
CAUSE OF DEATH: hypovolemic shock; penetrating neck wound made by a sharp,
pointed weapon.
(cfr. Official communication No. A-567.B-70/95 of the
Forensic Department of the Judiciary of the Republic of Guatemala, C.A., dated
December 22, 1995, and signed by Dr. Alonso René-Portillo).
g. Expert
Robert C. Bux referred to the documents relating to the death of Ms. Paniagua-Morales
in the report he delivered before the Inter-American Court (infra, para. 67 (l) (3)).
4. Concerning William Otilio González-Rivera
and Pablo Corado-Barrientos:
a. Mr.
Gilberto González-Saquij, an travelling vendor who witnessed the arrest of
Mr. González and Mr. Corado, testified on two occasions: the first on March
22, 1988, to investigators José Eduardo Cabrera and Carlos René Juárez-Hernández,
and the second on May 25, 1988 to investigator José Eduardo Cabrera.
In the first statement Mr. González-Saquij said that
he had known Mr. "William Otilio"
and Mr. Pablo Corado for three months; that on the day they disappeared he
had seen them at 6.00 p.m. talking to an "unknown man armed with a pistol and cartridges;" that "he heard the armed man persuading them to go
for a walk, and they went away."
He said that the man and others with him appeared to be soldiers and
often visited the banana stalls; that he had not seen them since the two victims’
disappearance and "he had heard
that those [unknown persons] were
from the G-2." He further
testified that a coal vendor there, known as "Tanish", packed up
his stall when he realized that those persons were there and went away; that
"Tanish" was a friend of the deceased, knew what had occurred and told "people
in the area that he would tell the authorities what he knew."
He would not give his address because he was afraid of what would happen
to him, as was everyone in the area.
(cfr. Interview with Gilberto González-Saquij contained
in the police report of March 22, 1988).
In his second statement, Mr. González-Saquij added
that the victims, accompanied by a stranger armed with "a pistol and two cartridges," had
walked away from the area.
(cfr. Interview with Gilberto González-Saquij contained
in the police report of May 25, 1988).
b. Mr.
Carlos René Juárez-Hernández, investigator with the Special Investigations
and Narcotics Brigade of the National Police, testified before the Seventh
Judge of Criminal First Instance on July 13, 1988, that he had thought at
the time he took Mr. González-Saquij’s statement that "at the terminal anyone armed was said to belong to the G-2, and […]
perhaps [the armed men] visited them because Mr. William Otilio González-Rivera
was an ex-paratrooper."
(cfr. Statement of Carlos René Juárez-Hernández, investigator
of the National Police serving with the Special Investigations and Narcotics
Brigade of the National Police).
c. According
to the autopsy report of February 12, 1988, Mr. Corado-Barrientos’s corpse
had
[g]razes on the forehead
and chin. Second-degree ecchymosis
on the right cheek. A stab wound measuring thirteen by three cm. on the left
middle clavicle of the pectoral area affecting the skin, cellular tissue,
and pectoral muscles, forming a cavity. A
stab wound measuring twelve by three cm. on the right middle clavicle
of the pectoral region affecting skin, cell tissue, pectoral muscles and forming
a cavity
adding as conclusions:
a) Stab wounds to the thorax and abdomen inflicted with a bladed weapon.
b) Hypovolemic shock. Acute anemia. c) Bilateral haemothorax. Haemoperitonitis.
d) Perforation of the lungs and liver. e) Perforation of the heart. f) Fracture
- ribs. -- CAUSE OF DEATH: Stab wounds
to the chest and abdomen.
(cfr. Official communication No. F-1655. D-72-88 of June
22, 1988).
d. According
to the autopsy report of February 12, 1988, Mr. González-Rivera’s corpse had:
LESIONS: Stab wounds
measuring ten by two and half centimeters on the right middle clavicle of
the pectoral area. A short bruising wound
measuring three by three centimeters running vertically along the left
middle clavicle [.]
and the following conclusions:
a- Chest and abdominal stab wounds inflicted with a bladed weapon; b-
Hypovolemic shock - acute anemia; c- Bilateral haemothorax - haemoperitonitis;
d- Lung perforation; e- Perforation of the heart; f- Rib and bone fractures.
CAUSE OF DEATH: 1- Stab wounds to the chest and abdomen.
(cfr. Forensic report of February 12, 1988, reproduced
in official communication number C-3006-88 of June 22, 1988).
e. Expert
Robert C. Bux referred to documents relating to the deaths of Mr. González-Rivera
and Mr. Corado-Barrientos in his report delivered before the Inter-American
Court (infra, para. 67 (l) (4) and
(5)).
5. Concerning Mr. Manuel de Jesús González-López:
a. Ms.
María Elizabeth Chinchilla de González, wife of Mr. Manuel de Jesús González-López,
delivered three statements: the first two through affidavits of May 5 and
13, 1988, and the third to the Inter-American Court (infra, para. 67 (a)).
In her first statement, Ms. Chinchilla de González
said that her husband had been kidnapped in a white "minibus" on February 11, 1988, at approximately 6.00 p.m. and
was found dead on February 13. When later shown photographs of a white
"van", she said that it was not the vehicle in which her husband
had been abducted, and that one had been smaller with windows. She was also shown "six photographs of six persons, to see whether
she recognize[d] any of them as
a participant in her husband’s abduction." Ms. Chinchilla de González declared that she
did not recognize the men in the photograph.
(cfr. Sworn statement of María Elizabeth Chinchilla de
González delivered to Notary Jorge Humberto Castillo de León on May 5, 1988).
In her second statement, Ms. Chinchilla de González
said that her husband had been abducted by four armed men in a white "van".
She was shown the white 1986 Nissan Cherry Vanette minibus, chassis
No. KHGC120-027394, engine No. A15-092198A, registration plate P-89324.
After close study, Ms. Chinchilla de González said that it was the
same as the vehicle "in which her
husband had been kidnapped."
(cfr. Sworn statement of María Elizabeth Chinchilla de
González delivered to Notary Fernández Font on May 13, 1988).
b. Ms.
María Julia González-López, the victim’s sister, was questioned on March 30,
1988, by investigators Edwin Gudiel-Alveño and Miguel Wilfredo Santeliz, from
the Homicide and Disappeared Persons squads, respectively, of the Special
Investigations and Narcotics Brigade of the National Police. Ms. González-López declared that when she asked
her sister-in-law (the wife of Mr. Manuel de Jesús González-López’s) about
her husband’s death, she had told her "not to ask her anything about what had happened because she knew nothing,
adding that she was not to say anything because MANUEL [de Jesús González-López]
was already dead and […] she
was not to accord it any importance." Ms. González-López also said that, when she
asked her sister-in-law whether she remembered what the vehicle in which Mr.
González-López had been abducted was like, she told her that it was a white
van "and that afterwards she sa[id]
that it was a grey SUBARU van, and later again
she sa[id] that she kn[ew] nothing and she was not to ask her any more
questions."
(cfr. Police report of the Special Crimes and Narcotics
Squad of the Homicide Section of the National Police of April 4, 1988).
c. The
following mention is made in the police report of February 13, 1988, concerning
Mr. González-López’s corpse when it was found.
[i]ndentation on the neck, with
signs of torture and hanging: […] on the wrists signs of having been tied,
grazes on the forehead.
(cfr. Police report of February 13, 1988, signed by Mario
Alfonso Pérez Martínez, Second Int. Chief, Homicide Sec. of the National Police).
d. According
to the autopsy report of February 18, 1988, Mr. González-López’s corpse bore:
LESIONS: a two-centimeter-wide
indentation from hanging was found
[…].
CONCLUSIONS: a- an indentation from
hanging. b- signs of asphyxiation. c- pancreatitis.
CAUSE OF DEATH: asphyxiation by
hanging.
(cfr. Official communication No. A-568.B-71/95 of the
Forensic Department of the Judiciary of the Republic of Guatemala, dated December
22, 1995, and signed by Dr. Alonso René Portillo, Medical Examiner; death
certificate of Manuel de Jesús González-López Ref. C-165-87/Of.7th. of May
14, 1990).
e. At
the public hearing before the Court, expert Robert C. Bux commented on the
contents of the autopsy report on Mr. González-López (infra. 67 (l) (6)).
6. Concerning Mr. Oscar Vásquez:
a. Mr.
Vásquez made a statement through affidavit signed on March 15, 1988, at the
Office of the Warden of the Pavón Rehabilitation Correctional Farm. He said
that he had been detained at approximately 7.30 p.m. on February 13, 1988,
at his home in Zone 6 of Guatemala City; that he had been put into a white
"van" with tinted windows; that he had been taken to the Treasury
Police station, where he was beaten. He recognized the photograph of a white
"van" shown him and those of agents Manuel de Jesús de
la Cruz-Hernández, Aníbal René Morales-Marroquín and Juan José Elías-Palma.
The last two were wearing Treasury Police uniform and took part in his arrest.
(cfr. Affidavit signed by Oscar Vásquez on March 15,
1988, at the Office of the Warden of the Pavón Rehabilitation Correctional
Farm).
b. Mr.
Oscar Humberto Vásquez, the victim’s son, testified before the Court (infra, para. 67 (f)).
c. Ms.
Raquel de Jesús Solórzano, the victim’s wife, testified before the Inter-American
Court (infra, para. 67 (e)).
Ms. Solórzano also testified through a affidavit signed on March 16,
1988, that on February 13 of that year her husband had been arrested by a
member of the Treasury Police and another individual wearing gray trousers,
both of whom were armed. She learned from neighbors that the vehicle used
to transport them was a white van and that her husband’s captors were accompanied
by about eight other men.
(cfr. Notarial act signed by Raquel de Jesús Solórzano
on March 16, 1988).
d. Mr.
José Antonio Montenegro, in a statement delivered on March 15, 1988, at the
Office of the Warden of the Pavón Rehabilitation Correctional Farm said that
when he was forced into the white "van", Mr. Oscar Vásquez was already
inside (infra, 7 (a)).
(cfr. Affidavit signed by José Antonio Montenegro on
March 15, 1988, at the Office of the Warden of the Pavón Rehabilitation Correctional
Farm).
e. Notarial
act signed by Delia Amparo Hernández-Mejía on March 16, 1988, in which she
declared that she had seen a white "van" with tinted windows and
no registration plates, in which three uniformed Treasury Police agents were
taking Mr. Oscar Vásquez away. She recognized the "van" shown to
her in photographs, as well as Manuel de Jesús de la Cruz-Hernández,
Aníbal René Morales-Marroquín and Neftalí Ramírez as the three individuals
who abducted Mr. Vásquez.
(cfr. Affidavit signed by Delia Amparo Hernández-Mejía
on March 16, 1988).
f. In
his report to the Inter-American Court, expert Robert C. Bux (infra, para. 67 (l) (7)) referred
to the file on Mr. Vásquez and the injuries inflicted on him after his arrest.
g. The
following activity is recorded in the Guatemala City Treasury Police Department
Intelligence and Narcotics Squad log for February 13, 1988:
CAPTURE, SEIZURE
AND REMAND: at 23:00 hours, members of the
Treasury Police serving in this Section effected the arrest of persons […]
OSCAR VÁSQUEZ-PALACIOS […], on the public thoroughfare at 25th Avenue and 26th Street in Zone 6 […] in flagrante delicto when at the above
address one of them was selling Marijuana and others purchasing and consuming
it, seizing that drug from each of them, which was the reason for their detention
and remand, together with the corpus
delicti, to the Twelfth Court of Criminal Justice; to that court they
had delivered a sum of exactly one
hundred and eighty-two quetzales (Q. 182.00) with which money the accused
attempted to bribe the arresting officers.
(cfr. Log book showing the activities and events in the
Intelligence and Narcotics Squad of the Guatemala City Treasury Police Department
of Guatemala City for the month of February nineteen hundred and ninety-eight,
folio 4).
h. According
to official communication No. 167-REF. GCD/Jmpo of February 14, 1988
from the Chief of the Treasury Police II to the Twelfth Examining Magistrate
of Guatemala City, Mr. Vásquez was referred to that Court after being apprehended
in flagrante delito at a suspicious meeting,
and a quantity of "the herb
marihua (sic)" seized from
him. The official communication also states that, according to the statements
of the other persons detained and of Mr. Vásquez himself, he was a drug dealer
and trafficker in the area in which he was arrested.
(cfr. Official communication No. 167. REF. GCD/Jmpo of
February 14, 1988, from the Chief of the Treasury Police II to the Twelfth
Court of Criminal Instruction of Guatemala City).
i. According
to an official communication of June 13, 1988, signed by Judge Otto Fernando
Palma-Chacón, Twelfth Examining Magistrate, to the Seventh Judge of Criminal
First Instance, Mr. Vásquez was taken by the Treasury Police before the Twelfth
Examining Magistrate of Guatemala on February 14, 1988, through official communication
No. 167, accused of unlawful traffic in pharmaceutical products, drugs
or narcotic substances, and active bribery.
(cfr. Official communication of June 13, 1988, signed
by Judge Otto Fernando Palma-Chacón, XII Examining Magistrate and addressed
to the Seventh Criminal Judge of First Instance).
7. Concerning Mr. José Antonio Montenegro
a.
Affidavit signed by José Antonio Montenegro on March 15, 1988, at the Office
of the Governor of the Pavón Rehabilitation Correctional Farm. He testified
that he was detained at his home on February 13, 1988, at 7:00 p.m. by three
persons in civilian clothes and placed inside a white "van" vehicle
with tinted windows and occupied by Mr. Oscar Vásquez. Inside were also seven or eight agents of the Treasury Police, who
ill-treated him. At the Treasury Police station they were undressed and beaten,
and boxes of sweets and marijuana planted on them as proof of their commission
of the crimes attributed to them. He recognized the photograph of a white
"van" he was shown and photographs of Manuel de Jesús de la Cruz,
Aníbal René Morales and Juan José Elías-Palma. The last two were wearing Treasury
Police uniform and took part in his arrest.
(cfr. Affidavit signed by José Antonio Montenegro on
March 15, 1988, at the Office of the Governor of the Pavón Rehabilitation
Correctional Farm).
b. Ms.
Miriam Elizabeth Huertas de Gatica testified by affidavit that she witnessed
José Antonio Montenegro’s capture on February 13, 1988, by three
individuals wearing civilian clothes, their faces hidden by dark caps, who
took him away. She recognized the photographs of a white van she was shown.
(cfr. Statement by Miriam Elizabeth Huertas de Gatica
delivered on March 16, 1988, to Notary Eduardo Roberto González-Garnica).
c. Ms.
Graciela Cante testified by affidavit on March 16, 1988, that on February 13,
1988 two men wearing civilian clothes came to her house asking for Mr. Montenegro,
who was out at the time.
They waited for him and she was later told, when he arrived later they
took him away in a white van.
(cfr. Statement of Graciela Cante delivered on March
16, 1988, to Notary Eduardo Roberto González-Garnica).
d. The
log of the Intelligence and Narcotics Squad of the Treasury Police Department
of Guatemala City contains the following entry for February 13, 1988:
CAPTURE, SEIZURE AND REMAND: at 11:00 p.m., members of the
Treasury Police serving in this Section effected the arrest of persons […]
JOSÉ ANTONIO MONTENEGRO WITHOUT A SECOND SURNAME, on the public thoroughfare
at 25th Avenue and 26th Street in Zone 6 […] in
flagrante delito when at the above address one of them was selling Marijuana
and others purchasing and consuming it, seizing that drug from each of them,
which was the reason for their detention and remand, together with the corpus
delicti, to the Twelfth Court of Criminal Justice; to that court was
delivered a sum of exactly one hundred and eighty-two quetzales (Q.
182.00), with which money the accused had attempted to bribe the arresting
officers.
(cfr. Log book showing the activities and events in the
Intelligence and Narcotics Squad of the Guatemala City Treasury Police Department,
for the month of February, nineteen hundred and ninety-eight, folio 4).
e. According
to official communication No. 167-REF. GCD/Jmpo of February 14, 1988,
from the Chief of the Treasury Police II to the Twelfth Examining Magistrate
of Guatemala City, Mr. Montenegro was referred to that Court after being apprehended
in flagrante delicto at a suspicious
meeting and a quantity of marijuana seized from him.
(cfr. Official communication of June 13, 1988, signed
by Judge Otto Fernando Palma-Chacón, Twelfth Examining Magistrate and addressed
to the Seventh Court of Criminal First Instance; official communication No. 167.
REF. GCD/Jmpo of February 14, 1988, from the Chief of the II Treasury Police
to the Twelfth Examining Magistrate of Guatemala City).
f. According
to official communication of June 13, 1988, from Judge Otto Fernando Palma-Chacón,
Twelfth Examining Magistrate, to the Seventh Court of Criminal First Instance,
Mr. Montenegro was remanded to the Twelfth Criminal Court of Guatemala on
February 14, 1988, through official communication No. 177, accused of
the crimes of unlawful traffic in pharmaceutical products, drugs or narcotic
substances, and active bribery.
(cfr. Official communication of June 13, 1988, signed
by Judge Otto Fernando Palma-Chacón, Twelfth Examining Magistrate and addressed
to the Seventh Court of Criminal First Instance).
8. Concerning Mr. Erik Leonardo Chinchilla:
a. Mr.
Mario Ricardo Alvarez-Guevara testified that he saw Mr. Erik Leonardo Chinchilla
at 4:35 p.m. when he left with some men in "his pick-up truck." He
further testified that a friend called Romeo had told him that he had witnessed
the kidnapping and that the kidnapper was a thin man of medium height, with
dark wavy hair, wearing light clothes and dark glasses, and that he took away Mr. Chinchilla’s keys
and carried him off in his own "pick-up"
followed by another gray or light blue "pick up." The witness made the same statement in police
report of July 23, 1992.
(cfr. Interview with Mario Ricardo Álvarez-Guevara, recorded
in police report of February 20, 1988; interview with Mario Ricardo Álvarez-Guevara,
recorded in police report of July 23, 1992).
b. Ms.
María Luisa Chinchilla-Ruano, Mr. Erik Leonardo Chinchilla’s mother, testified
that on the day before his death, her son told her that he had been involved
in an accident with two individuals who had identified themselves as bodyguards
of Mr. Julio Caballeros, Director of the National Police; they threatened
him and forced him to sign a document for payment of damages. On the day of
her son’s death a friend of his told her that he had seen him arguing around
4.00 p.m. with persons unknown who had taken him away. From the friend’s description,
one of them appeared to be the person with whom he had had the aforesaid incident.
(cfr. Interview with Ms. María Luisa Ruano, recorded
in police report of February 20, 1987 (rectius 1988)).
c. Mr.
Nicomedes Castillo-Guzmán, Mr. Chinchilla’s biological father, said that he
spoke to the bodyguard involved in the traffic accident with his son, who
was a man of light brown complexion, thin, with very short semi-straight semi-wavy
hair, and that one of the three men that kidnapped his son had the same physical
characteristics as the bodyguard who spoke to him. That the witness called
“Darwin” saw a gray "pick-up with
a camper" intercept Erik Chinchilla’s car, saw some people arguing
with him and then take him away in his own vehicle, following it in another.
In a subsequent statement, he also said that when the "pick-up" intercepted Mr. Chinchilla’s car, the latter said something like
"IT WAS NOT MY FAULT."
(cfr. Interview with Mr. Nicomedes Castillo-Guzmán, recorded
in police report of February 22, 1988; interview with Mr. Nicomedes Castillo-Guzmán,
recorded in police report of July 23, 1992).
d. Mr.
Manuel de Jesús Bautista-Marroquín said that his sister informed him that
they had killed someone in the field, that he heard shots and went to the
National Police to report the incident.
(cfr. Interview with Mr. Manuel de Jesús Bautista-Marroquín
recorded in police report of February 23, 1987 (rectius 1988)).
e. Ms.
María Cristina Bautista-Marroquín said that she heard a number of shots and
told her brother and that, according to the neighbors, three unknown persons
fled "in a yellow, beige or perhaps
silver truck" after the shots were fired.
(cfr. Interview with María Cristina Bautista-Marroquín,
contained in police report of February 23, 1987 (rectius 1988)).
f. Mr.
Juan Guillermo Granados-Fernández said that at 4.30 p.m. on Monday, February 15,
1988, Ms. María Luisa Chinchilla’s son, whom he did not know, entered his
shop with a rank-and-file policeman and an officer wearing "two deltas"
(police insignia); another thin young man of 28, with smooth to slightly wavy
hair; a minor of 16 and a girl of about 12, asking him to repair a "Plymouth"
vehicle, which was being driven by a bodyguard.
(cfr. Interview with Juan Guillermo Granados-Fernández,
recorded in police report of February 23, 1988).
g. Ms.
Sabina-Sian testified that on the day of Mr. Erik Leonardo Chinchilla’s murder,
she passed between two vehicles, a red "pick-up truck" with Mr. Chinchilla and another thin, light brown
skinned man, wearing a shirt with brown stripes and a blue jacket, seated
inside; in the other vehicle were two individuals whom she could not see clearly,
because this "vehicle, which was
yellow or beige, or rather mustard-colored, was a truck" with tinted
windows.
(cfr. Interview with Ms. Sabina-Sian, recorded in police
report of February 23, 1987 (rectius 1988)).
h. Dr.
Carlos Manuel Alegría indicated in a police report of February 23, 1987 (rectius 1988), that he had performed the
autopsy on Mr. Chinchilla on February 17 and that his body had nine bullet
holes, four in the cranial area, two in the chest, two in the right forearm
and one in the right hand. Two bullets were found, one in the right elbow
and the other in the stomach muscles. Death occurred at 6.00 p.m. The shots
were fired from a distance of fifty centimeters.
(cfr. Interview with Dr. Carlos Manuel Alegría, recorded
in police report of February 23, 1987 (rectius 1988)).
i. Investigators
Izquierdo and Villagrán said they had taken preliminary statements at the
site of Mr. Erik Leonardo Chinchilla’s murder; that they interrogated a 58-year
old individual who said that a "pick-up"
and yellow van with tinted glass carrying two men had arrived at the spot. Both vehicles stopped for fifteen minutes;
he then saw the man sitting in the right seat of the "pick-up" get out and fire at the driver, get back in to the van
and speed off.
(cfr. Interview with agents Izquierdo and Villagrán,
recorded in police report of March 3, 1988).
j. Expert
Robert C. Bux reported to this Court on some documents referring to Mr. Erik
Leonardo Chinchilla’s death (infra,
para. 67 (l) (8)).
9. Concerning Mr. Marco Antonio Montes-Letona:
a. Mr.
Montes-Letona delivered a statement at the Office of the Warden of the Pavón
Rehabilitation Correctional Farm on March 15, 1988, in which he declared that
he was detained on February 19, 1988, at 3.30 p.m. in the lobby of the Hotel
Capri on Ninth Avenue between 15th Street "A" and 16th Street in Zone 1 of Guatemala City, by four individuals
wearing civilian clothes. He further stated that two other individuals wearing
the uniform of the Treasury Police were waiting outside and put him into a
white "van" with tinted windows and took him to the Treasury Police
station. There he was beaten up by different uniformed agents then those who
had seized him. When he was shown six photographs of Treasury Police agents,
he recognized Mr. César Augusto Guerra-Ramírez as one of the agents who had
beaten him, and said that he could identify the individuals who had detained
him. When shown photographs of the
white "van", he identified it as the one in which he had been taken
to the Treasury Police station.
(cfr. Sworn statement of Mr. Marco Antonio Montes-Letona
of March 15, 1988, at the Office of the Warden of the Pavón Rehabilitation
Correctional Farm).
b. In
the February 19, 1988 confidential report of the Special Investigations and
Narcotics Brigade of the National Police, Police Officer II, José Luis Castillo-Silva,
Deputy Chief of Section, informed the Special Investigations and Narcotics
Brigade of the National Police that on February 19, 1988, at 3.00 p.m., he
received a confidential telephone call informing him that a brown vehicle
bearing registration plate P-219022 with four persons inside was parked on
16th Street between Eighth and Ninth Avenues, Zone 1, of Guatemala City.
He also stated that, together with investigator Mario Armando Castro-Palomo,
he went to the address indicated, where they kept watch for fifteen minutes. They observed on Ninth Avenue between 16th and 17th Streets of Zone 1 a white Ford "van" with
tinted windows, registration plate P-123857. At 3.30 p.m. the vehicle described
pulled away and parked in front of the Hotel Capri, located on Ninth Avenue
and 15th Street,
Zone 1. Persons wearing the uniform of the Treasury Police got out and with
the help of the occupants of the brown vehicle, who were dressed in civilian
clothes, they took two individuals out of the hotel and put them in the white
van. The detainees were male and possibly
foreign. Both vehicles drove away
from the site.
(cfr. Confidential report of the Special Investigations
and Narcotics Brigade of the National Police of February 19, 1988, signed
by Police Officer II, José Luis Castillo-Silva, Deputy Chief of Section, and
addressed to the Special Investigations and Narcotics Brigade of the National
Police)
c. The
following information for February 19 was entered in the February 1988 log
book of the Intelligence and Narcotics Section of the Treasury Police Department:
members of the Treasury
Police serving in this Intelligence and Narcotics Section, on the public road
near 11th Street and 5th Avenue of Zone 1 of this capital
city, in front of the offices of the National Bank in the “Banvi” building,
captured two individuals: MARCO ANTONIO MONTES-LETONA [and another …]. They
also seized from them two forged I.D. papers with which they were attempting
to change money […], for which reason they were arrested and taken before
the Thirteenth Criminal Justice of Peace.
(cfr. Log of activities of the Intelligence and Narcotics
Section of the Treasury Police Department for February 1988, folio number
six).
d. By
official communication of June 14, 1988, the Thirteenth Criminal Justice of
Peace informed Judge Trejo-Duque that on February 20, 1988, Mr. Montes-Letona,
accused of the crimes of forgery, theft and unlawful use of identity papers,
was placed at the disposal of the Court. The proceedings were subsequently
sent to the Fifth Court of Criminal First Instance on February 23, 1988.
(cfr. Official communication number 051/Srio. of June
14, 1988, signed by Luis Alberto Mazariegos-Castellanos, Judge of the Thirteenth
Criminal Justice of Peace, addressed to the Seventh Judge of Criminal First
Instance, Julio Aníbal Trejo-Duque).
VII
67. At public hearings on September 22, 23 and
24, 1997, the Court heard the statements
of the witnesses and the reports of the experts produced by both the Inter-American Commission
and the State. The reports and statements
are summarized below in the order in which they were delivered:
a. Testimony of María Elizabeth Chinchilla,
wife of Manuel de Jesús González-López
In February 1988 she was living with her husband,
Manuel de Jesús González-López, and their children at the Mezquital Estate
in Zone 12 of Guatemala City. Her husband worked as a mechanic and played
sports. On February 11, 1988,
she went to meet her husband outside his place of work and they returned home
by car at 5.45 p.m.; while he was closing the car door a white "van"
with Guatemalan plates drew up and four men got out. They were dark, wearing civilian clothes, with very short hair,
shorter on the sides than on top. They seized her husband from behind and
put him into the "van"; she went to get help from the police station
in Bolívar Avenue in Guatemala City; the next day she went to look for her
husband at the General Hospital; early on Saturday, the 13th, she went to the morgue but could obtain no information;
around midday her sister-in-law told her that her husband’s body was at the
morgue and that it had been found beheaded and naked in the street, and bore
traces of burns similar to those made
with a cigar. She went to the morgue
and saw her husband’s body in a box; he looked purple, had cuts and bore signs
of hanging, with his tongue outside, also purple, and burns on his skin. Following
her husband’s death, she returned to the Sixth Avenue police post in Guatemala
City, where she was questioned and shown photographs for her to identify those
responsible; she was unable to identify anyone in the photographs because
they were of common criminals. She was never summoned to any court. Some time after her husband’s
death she went to Los Ángeles and did not return to Guatemala because she
was afraid.
b. Testimony of Blanca Lidia Zamora de Paniagua, sister-in-law
of Ana Elizabeth Paniagua-Morales
In February 1988 she was living with her parents-in-law,
her daughters, her brother, her niece and her pregnant sister-in-law, Ana
Elizabeth Paniagua-Morales. On February
9, 1988, Ms. Paniagua-Morales got up early and went to the shop to buy bread
and milk. Ms. Zoila Ruano told her that her husband, Eugenio Ruano, had seen
her sister-in-law abducted in a white "van". She spoke to a neighbor ("Irené") who told her that a long white
"van" with dark windows was parked in front of her house with a
man sitting in the "right front
seat." She also spoke to
the shopkeeper ("Doña Felipa", see supra, para. 66 (3) (d)), who told her that a white van drew up and
four men got out, one of whom seized her sister-in-law by the hands and covered
her head with a towel while another grabbed her legs; they put her into the
"van", which drove off to an unknown destination. She passed that
information on to her sister-in-law’s mother, to her husband and her brother. The victim’s mother went to various police
stations to find out whether her daughter had been detained; six men came
to the house that day in a private car to ask questions about her sister-in-law.
She later heard on the news that the bodies of two women who had been
brutally tortured and killed had been found and taken to the morgue of the
General Cemetery in Zone 3. She went there and identified her sister-in-law’s
body. She had two holes at the top
of her head which were bleeding; her forehead was damaged, swollen and green
and purple; her cheek was open below the eye; she had another injury like
a knife wound on her cheek or mouth; she had two red marks under her breasts;
she had no fingernails or toe nails; her head had been almost severed from
her body; her tongue stuck out between her clenched teeth and was purple in
color; her genital organs also bore signs of rape. The witness made the necessary arrangements for removing her sister-in-law’s
body from the morgue.
c. Testimony
of Alberto Antonio Paniagua-Morales, brother of Ana Elizabeth Paniagua-Morales
The witness was not in Guatemala on the day of his
sister’s abduction and returned at the end of April of the year in which the
events occurred. He testified that
unknown persons were watching his house, some of whom appeared to be policemen
and had short hair at the bottom and less short on top, military style. His fear increased when a grenade exploded
six months after his sister’s murder, and when another, which did not explode,
was also planted; that day uniformed police arrived, wearing their hair that
was slightly longer on top than on bottom, military style. His sister’s death had totally destroyed his
family; they had never filed any civil action in Guatemala for reparation
of injuries or damages.
d. Testimony of María Idelfonsa Morales de
Paniagua, mother of Ana Elizabeth Paniagua-Morales
The witness testified that in 1988 her daughter was
23 years old and two months pregnant; she had last seen her at 6.00 a.m. on
February 9, 1988, when she told her she was going to buy milk; she went to
the shop and never returned. When
she learned that she had been abducted, she went with her son to look for
her at the police stations and hospitals; she filed a writ of habeas corpus but never received a reply. On February 11, 1988, she
learned that two unidentified bodies had been discovered, and asked her daughter-in-law
(Ms. Blanca Lidia Zamora de Paniagua) to go. Her daughter-in-law informed her that one of
the bodies was her daughter’s. Her home was placed under surveillance and
she was told by Mr. Adolfo Soto, an acquaintance of hers who worked with the
judicial police, that they had been sent to watch her. She left Guatemala
for the United States and, later, Canada on February 28, 1988. On August 21,
1997, she returned to Guatemala and Yolanda Sánchez from the Office of the
Procurator General of the Nation offered her compensation for her daughter’s
death. She had not brought any civil or criminal action in Guatemala in connection
with her daughter’s death, nor had she made any statement.
e. Testimony of Raquel de Jesús Solórzano,
wife of Oscar Vásquez
The witness testified that her husband, who was a
wood-seller, was abducted on February 13, 1988; they were together at home
when there was a knock on the door; her husband went out and was seized by
four Treasury Police agents, three of whom were wearing the olive green uniform
and cap, while the fourth was dressed in civilian clothes; they beat him and
handcuffed him. The agents did not have an arrest warrant, nor did they produce
a search warrant; they entered asking where "the marijuana" was, told her they knew that her husband sold
it, searched the house and found nothing, but stole money from them. Their sons Marvin and Oscar followed the agents
who carried her husband away and saw them beat him with a rifle butt. Mr.
Vásquez’s captors put him face down through the back door of a large white
"van", in which there were other agents who put their feet on top
of him. The next day she went to the "Second
Precinct" where she was told that her husband was not there, but
she did see him when she returned on visiting day.
He had been badly beaten, found it difficult to speak and one eye was
closed and inflamed; he told her that after they had seized him they took
him to the Treasury Police and transferred him the next day to the "Second Precinct." She went to the Third Justice of Peace, where
she was told that her husband was accused of drug possession and consumption;
they sentenced him "to four
years." On her second visit to her husband he still
had visible swellings, which disappeared approximately one month later. In
response to questions from the Commission and
the State, she said that following her husband’s arrest she had been
visited by six or eight agents carrying a great many photographs of agents
and of a van, but the photographs were not those of the agents that had apprehended
her husband. At the time of her husband’s detention she did not file a writ
of habeas corpus; her husband identified six
Treasury Police agents and the white van in a statement made to a notary,
who delivered it to the police. No
one was detained, but they had not detained anyone; her husband was murdered
five days before he was due to testify before the Inter-American Commission.
f. Testimony of Oscar Humberto Vásquez,
son of Oscar Vásquez
On February 13, 1988, at around seven or eight at
night, he was at home when some policemen
arrived and asked for his father, whom they arrested and handcuffed when he
went out to them. There were some fifteen men outside the house, four of whom
came in to search it. Three wore the
green uniform of the Treasury Police, while one wore civilian clothes; they
told his father to hand over "the marijuana" and beat him.
They searched the entire house and took money away. He saw them put his father face down into a
white "van" with tinted windows, two doors in front, a sliding door
on the right side and other behind, and also saw all the agents put their
feet on his father’s back; the operation lasted about 15 minutes. Approximately eleven men were arrested for
the beating his father received, but they were released. In reply to questions from the Commission and
the State, he said that after the detention a policeman came to his home with
photographs to see whether his mother could identify the policemen that had
arrested his father or the "van", and that his family had never
been compensated for the damage occasioned by his father’s arrest.
g. Testimony of Jean-Marie Simon, journalist
and former Human Rights Watch/Americas consultant
The witness testified that in 1988 she was working
in Guatemala as a journalist and human rights consultant; she had interviewed
Judge Julio Aníbal Trejo-Duque four days after his release; that day she also
interviewed Judge Guerra-Juárez at his office; she took notes of the interviews
but the judges gave her certain information which they did not allow her to
write down. Judge Guerra-Juárez told her that Judge Trejo-Duque was very scared
and that everyone thought that he had been kidnapped by military intelligence
(G-2). She interviewed Judge Trejo at his
office and he informed her of the circumstances of his kidnapping; that it
occurred in a busy sector and that police officers in the vicinity had not
intervened. He also said that while he was in captivity
his captors asked him questions, threatened that if he investigated anything
they would kill him, and warned him that they knew where his family lived;
he knew that they were referring to the "white
van case" because it was the only sensitive case in which he was
involved; Mr. Carlos Morán-Amaya was a close friend who was investigating
that case at the time that they were both kidnapped. Judge Trejo-Duque
also said that he thought, about revoking the detention order issued by Judge Vicente Sagastume-Pérez.
h. Testimony of Julio Enrique Caballeros-Seigne,
former Director of the Guatemalan National Police
The witness testified that he was currently a retired
officer of the Guatemalan Army and that on March 10, 1988, a vehicle resembling
one that had been sought for many months was seen on the highway leading to
El Salvador. The vehicle was parked
and his duty as Director of Police was to check its occupants. The vehicle had only one plate and several
of its occupants, who wore the uniform of the Treasury Police and were armed,
were detained by patrolmen; the Treasury Police agents were taken to the Second
Precinct of the National Police, but refused to relinquish their weapons. A confrontation ensued between the members
of the Treasury Police and the Second Precinct police. He pursued the trail
of the white "van" because it was the common denominator in a series
of crimes that were being investigated. He
was unable to seize the vehicle at once because of Treasury Police intervention.
He undertook an investigation on the basis of the seizure of the "van",
for which purpose a team of experts was named. In his view, there was no reason
for the vehicle in question to be in the possession of the Treasury Police,
since it had been confiscated. The
investigation showed that the Director-General of the Treasury Police had
illegally used fourteen sets of registration plates belonging to private individuals. That the Treasury Police agents captured (on
the El Salvador highway) said that they were conducting an operation, but
that was not so. No pressure had been put on him to desist from his investigation.
He acknowledged the content, authenticity and signature of the documents shown
him during the public hearing (Police
report, official communication No. 3214; Ref. BIEN. FOA/rrh, of June 6, 1988,
and Official Communication of June 10, 1988, signed by Infantry Colonel
DEM Julio Enriquez Caballeros-Seigne, Reference "Case No. 165, Official communication 7.")
i. Report of Carlos Enrique Luna-Villacorta,
Dean of the Faculty of Law of the Rafael Landívar University in Guatemala
A Code of Penal Procedure, now abrogated, was in
force in Guatemala in 1988 and established an essentially written procedure
which was very cumbersome, with an initial secret phase in which the parties
found it practically impossible to learn what was going on, resulting in the
delayed administration of justice. This private phase of the process was known
as the summary phase ("etapa de sumario"). With the delay of justice a case could sometimes go on for six or
seven years. In Guatemala the extinction of punishment for the crime of murder
and kidnapping is twice the duration of the sentence. It is possible to bring
a civil action independent of the criminal action. There is a constitutional
provision establishing that the State is responsible for damage and injury
caused by any public official or employee.
Under the previous system, it was possible to appeal against a decision
to dismiss a case. The former system allowed for a private accuser who could
participate in the process, although this was not generally done. There are very few known cases in Guatemala
in which a State agent has been accused of torture, decapitation and murder.
The former system did not grant effective, simple and prompt recourse
to the national courts.
j. Report of Eduardo René Mayora-Alvarado,
Dean of the Faculty of Law of the Francisco Marroquín University in Guatemala
The witness testified that the system of criminal
procedure in force in Guatemala in 1988 was fundamentally inquisitorial. The investigation was conducted during a secret
summary phase. Once this phase had
ended an analysis was made to determine whether or not to proceed to the criminal
case. The investigation function was somewhat deficient. The remedy of habeas corpus is enshrined in the political constitution of Guatemala;
it is a prompt and informal process that averts violation of rights, but is
not ideal for restoring freedom when a victim is held by kidnappers.
The remedy of amparo is an immediate action and one of
the most important means of defense. The
witness had no direct knowledge of cases in which any decision rendered in
relation to amparo or habeas corpus had not been observed.
In Guatemala extrajudicial statements had no probative value; what
was important was for the proof to emerge within the debate.
Guatemala was prone to systematic and deliberate violations of individuals’
rights and there was no real possibility of defense before the justice system;
these circumstances began to change in the mid-1980s. He had no direct knowledge
of intimidation of judges in Guatemala, although he did recall one or two
cases in which prosecutors had to leave the country because they felt threatened. Under both the former and current systems,
arrest without flagrante delicto
or the order of a competent court would be illegal, but would not be kidnapping.
If dismissal is ordered and the litigant to whom that decision was unfavourable
did not appeal, the decision stands. There
are crimes of public action in Guatemala, and the State’s obligation in such
cases is to pursue them in accordance with the Code of Penal Procedure and
the law of the Office of the Attorney-General. Strictly speaking, there is
no constitutional obligation on the State to undertake all the actions.
k. Report of Napoleón Gutiérrez-Vargas, Presiding
Magistrate of the Seventh Chamber of the Court of Appeals of Guatemala, based
in Quetzaltenango
The witness testified that Decree 5273 (Code of Penal
Procedure) remained in force in Guatemala well into 1994. This Code established the semi-secret, bureaucratic,
formal, ritual and written inquisitorial system. In accordance with the abrogated law, once
the summary phase was concluded, the part played by the accused in the act
under investigation was established, and if the elements of the crime were
proven, the case on the merits was opened. Under the former Code, as in the
current one, extrajudicial statements are not given any value. The investigation conducted by the National
Police is also given no weight if
it is not ratified before the competent court. He knew of no case in which
the judgment was rendered in Guatemala within three months, nor of any case
in which the first instance, appeal and cassation for cases of crimes such
as murder and kidnapping were heard by the courts within three months. Habeas corpus is a remedy accessible to
any person and the tribunal is obliged to exercise it immediately, but it
is not an effective recourse when someone is kidnapped by common criminals,
because it is intended as a safeguard against unlawful detention by the authorities.
In the legislation in force in 1988, a distinction was made between
final dismissal and total dismissal. If
the "white van case" had not been sub judice it would then have been settled
under the current Code. A civil action may be brought independently of a criminal
action in Guatemala. He was aware that there corrupt were judges and judged
whom had been threatened.
l. Report by Robert C. Bux, forensic pathologist,
on the autopsies
1. Concerning
Julián Salomón Gómez-Ayala:
The witness reviewed the reports of the police investigation
and the autopsy, which indicated that Mr. Gómez-Ayala was abducted on June
2, 1987, and a photograph of the murder victim. The forensic report shows
that death was produced by asphyxia by hanging; the victim had a penetrating
wound on the neck produced by a sharp pointed object; a contusion on the nose
with ecchymosis; grazes on the left knee, an indentation on both wrists from
having been bound, and a cross-shaped wound on the thorax. All the wounds
had been inflicted before death, as attested to by the swellings and grazes
on the body. The witness deemed the wounds to show that the victim had been
tortured.
2. Concerning
Augusto Angárita-Ramírez:
The witness reviewed the forensic medical examiner’s
report of December 30, 1987. It
stated that Mr. Angárita had wounds, grazes and bruises. In his opinion,
the wounds showed that the victim had been tortured.
3. Concerning
Ana Elizabeth Paniagua-Morales:
The witness reviewed an autopsy report, a photograph
and a police report. The forensic report gave the cause of Ms. Paniagua-Morales’
death as a penetrating stab wound to the neck, which penetrated the carotid
artery and the jugular vein. The victim had cuts on her neck and cheeck, her throat had been
slit. These wounds, inflicted before death, were indicative of torture. A
study of the documents did not reveal that Ms. Paniagua had been raped, nor
that she had been burned with an open flame or with cigarettes. If the victim
had been pregnant, it should have been stated in the autopsy protocol. There
were discrepancies between the medical examiner’s report and the police statements.
4. Concerning
William Otilio González-Rivera:
The witness reviewed some documents concerning the
murder of Mr. González-Rivera: an autopsy report and a photograph. The forensic report showed two wounds in the
lungs, heart and liver as the cause of death. He deemed the documents to be
inconsistent and the injuries mentioned in them to constitute forms of torture.
5. Concerning
Pablo Corado-Barrientos:
The witness reviewed the autopsy report and a photograph
taken at the morgue. The forensic report states the cause of Mr. Corado’s
death as a stab wound on the chest inflicted with a bladed weapon; hypothermic
shock and a lateral haemothorax and haemoperitonitis. The victim had suffered
those injuries before his death. The witness believed that the injuries recorded
in the documents indicated torture.
6. Concerning
Manuel de Jesús González-López:
The witness reviewed a police report, an autopsy
report and a photograph. The forensic
report showed asphyxia from hanging as the cause of death. The police report
indicated signs of torture. He considered
that the victim received the wounds before his death, because the grazes and
bruises were on the face and hands, and indicated torture. The documents were not consistent. There was information suggesting that the bodies had been moved
after death.
7. Concerning
Oscar Vásquez:
The witness reviewed the file on Mr. Vásquez, which
stated that several days after he was deprived of his liberty he bore signs
of beatings on the chest and back. He had grazes and bruises which, in the
witness’ opinion, indicated torture.
8. Concerning
Erik Leonardo Chinchilla:
The witness reviewed the autopsy report of February
17, 1988, in which the cause of Mr. Chinchilla’s death was stated as penetrating
wounds to the cranium and thorax, produced by a firearm. He considered the
report to be deficient. He found no evidence of torture in the documents on
Mr. Chinchilla, only gunshot wounds.
9. General
conclusions:
The expert considered this case to reveal certain
patterns or constants: two of the victims sustained wounds with a cutting
edge on the thorax, one on each side, with penetration into the thorax and
abdomen, puncturing the lungs, heart and liver; two others had indentations
from hanging and wounds on the front of the left side of the neck; there were
traces of indentations around the victims’ wrists and of grazing and other
lesions on the face. There were gaps
in the forensic report and a dearth of photographs.
Signs of bruising or grazing did not necessarily indicate torture,
depending on the circumstances. All
the wounds visible in the photographs and recorded in the forensic reports
were consistent with torture.
m. Report of Ken Anderson, Professor at the
Faculty of Law at the American University, Washington D.C., United States
of America
The witness testified that he had worked in Guatemala
with the B.I.E.N. (Special Investigations and Narcotics Brigade) for nine
months in 1987 in connection with his work with the International Human Rights Law Group. It was impossible to investigate human rights cases because the
police could not touch them, in addition to which the political will to pursue
them was lacking. The police acted
under the direction of the examining magistrate or the judge in charge of
the investigation. In cases where
human rights violations were denounced, judges acted with great caution. In private conversations he had with several
of them, they told him that fear was widespread and that they were not willing
to investigate human rights cases. The
judges did not possess the facilities for implementing habeas corpus, particularly when it meant going into military bases
or police detention centers. The military
authorities responded in writing without supplying any useful information.
People were afraid and therefore reluctant to testify.
There had been a number of cases in which policemen and soldiers were
prosecuted, but virtually all of them concerned corruption rather than human
rights violations. The 1985 Constitution did not facilitate the
trial or sanction of security agents guilty of human rights violations.
n. Report of Olga Molina-Obregón, former
Judge
The witness declared that judges received no kind
of state protection for processing writs of habeas
corpus; they were usually afraid when they processed cases involving the
State’s security forces. In cases involving members of the security forces,
witnesses were afraid and refused to testify. In 20 years of professional
experience she had not received any direct information about persons kidnapped
by State security agents. From her
15 years of experience in the courts, she knew that very few remedies were
admitted. Under the former Code, final dismissal was a form of termination
of the process that produced res judicata. Simple release, under the previous Code of
Procedure, was what was granted when procedural evidence showed it to be impossible
that the accused committed the crime or when there was no evidence against
that person. She had the opportunity
to read the file on the "white
van case," thought that the investigation was very extensive and
that the data could provide the judge with a wide margin for developing an
investigation. Under the Code of Procedure
in force in 1988, it was Judge Trejo, and not the private accusers, who had
the obligation to investigate the facts. The appropriate remedy against a
final dismissal issued by the justice tribunals in Guatemala, under the previous
Code, would have been that of appeal; the private accusers could file it if
they had the status of parties within the process; it could also be filed
by the Department of the District Attorney ("Ministerio Público").
Extrajudicial statements had no judicial value; in taking decisions,
judges could not take into account probative elements not in the record.
o. Testimony of Carlos Odilio Estrada-Gil,
former Seventh Judge of Criminal First Instance of Guatemala City, Guatemala
The witness declared that he had been in charge of
the "white van case" for
the summary phase; he recalled that some of the persons accused had been freed;
the case was still at the investigation stage when he left the Bench. During the years in which he was in charge
of the court he had not ordered the detention of any Treasury Police agent. On one occasion he had been asked for a dismissal;
the request was made by one of the accused in the case, Mr. [Díaz] Urquizú,
former Director-General of the Treasury Police; after studying the proceedings,
he decided that the dismissal requested was out of order and rejected it.
p. Testimony of Felicito Olíva-Arias, Commissioner-General
of the National Police of Guatemala
The witness testified that in 1987 he was Chief of
the National Police Investigations Department and investigated the "white van case." A white "van" with tinted windows
was detained on March 10, 1988, at kilometer 12 (sic) on the highway leading
to El Salvador. Six agents were also detained. He recalled that the Treasury
Police said that the vehicle had no rear license plate. The Treasury Police
claimed that the "beige" Chevrolet Chevy "Van" 20 was not used in ist operation; this was false,
inasmuch as that institution’s operations log contained an entry stating that
the vehicle went out on an operation after it was painted brown to conceal
its original color. It was inconceivable
that there could have been another white van or other white vans in the hands
of common criminals, one of whom passed himself off as a Treasury Police agent.
His investigations showed that the Treasury Police Department had been
operating on the margins of the law, abusing its power to the detriment of
the citizens and breaching human rights.
He was also able to verify some cases in which uniformed members of
the Treasury Police had detained and remanded to the Courts some of the persons
involved in this case. He had prepared a final report which he sent to the
Judiciary. In that report he identified two vans, one
white and the other cream. He also
reported that the Treasury Police Department illegally used 14 private license
plates.
68. At the public hearing held at its seat on
November 13, 1997, the Court heard the testimony of Mr. Julio Aníbal
Trejo-Duque, former Seventh Judge of Criminal First Instance, who had been
in charge of the so-called "white
van case." His statement
is summarized as follows by the Court:
The witness’s obligation in regard to the "white van case" was to attempt to convert the statements contained in the police report into judicial proceedings, but most of the witnesses refused to testify because they were afraid. He considered that 60 per cent of the police investigation submitted to him was "judicialized." He had made a judicial inspection of the seized vehicles at the Department of the National Police, but none revealed any evidence. It was usual for the Treasury Police to use private license plates, there being a great many such plates at both the National Police and the Treasury Police. Persons connected with the case were imprisoned: Ms. Torres-Gil, Mr. Angárita-Ramírez, Mr. Vásquez and Mr. Montenegro, who, in his view, were the Treasury Police’s main accusers and then acted as private accusers against that institution. Mr. Angárita-Ramírez said that he had been brutalized by his captors but, although the existence of injuries was proven, he thought that they may have occurred while the accused was resisting arrest. He had never issued a warrant for the arrest of any Treasury Police agent or of Oscar Augusto Díaz-Urquizú. He summoned the accused to question them and they appeared voluntarily. Before initiating the inquiry, he had issued a restriction order against all of the accused. The examination was conducted in groups from July 19 to 22, 1988, after which he ordered preventive detention. At that stage he had five days in which to legalize the detention while he settled the legal situation of the accused. Under the law, at the end of those five days, he was obliged to order their release or place them in provisional imprisonment so that the investigation phase could begin. In order to issue the order for imprisonment there must be sufficient motive to suggest that the accused were guilty of the act. He only issued a detention order, given the short time he had to conduct the 27 examinations. He was kidnapped on July 20, 1988, released two days later, and told that his abduction had been a mistake. He was not asked any questions about the "white van case" during his captivity. He returned to work on July 23, 1988, at which time the examination of the accused had been completed. All of the accused were placed in preventive detention and the substitute judge, Vicente Sagastume-Pérez, issued an order for imprisonment of some of them, because the deadline had passed between July 19 and 22. He began to study the case as soon as he resumed his duties and, on July 26, decided to issue an order of provisional release ("libertad bajo caución juratoria") so that the case could move to the indictment stage ("sumario"), and to continue the investigation. On July 27, he ruled on the legal situation of the Treasury Police agents against whom Sagastume-Pérez had issued the imprisonment orders. He revoked those orders and issued an order for their provisional release and, in this way, the 27 accused remained connected to the process. The accused did not enjoy absolute freedom, but rather were required to appear at the Tribunal whenever they were summoned. He also reconfirmed the restrictions on all the accused. Had he decided on preventive imprisonment, he would have had to complete the investigation in 15 days, since the pertinent legislation required the judge to decide whether the accused would go free or a criminal proceedings would be opened within 15 days after an order of preventive imprisonment. Some of the accused, who sought unconditional release ("libertad simple"), appealed the decision. The case was referred to the Tenth Chamber of the Court of Appeal, which, on October 18, revoked his decisions and ordered the unconditional release of the accused.
VIII
69. Prior
to the examination of the evidence received, the Court specifies the general
criteria for the evaluation of evidence in this case, most of which were developed
on the basis of this Tribunal’s jurisprudence.
70. In
an international tribunal such as the Court, whose aim is the protection of
human rights, the proceeding possesses its own characteristics that differentiate
it from the domestic process. The
former is less formal and flexible than the latter, which does not imply that
it fails to ensure the parties’ legal security and procedural balance.
71. At
the same time, it must be remembered that the international protection of
human rights should not be confused with criminal justice. In cases in which
States appear before the Tribunal they do so not as defendants in a criminal
case, since the Court does not punish those guilty of human rights violations.
Its function is to protect the victims and to determine the reparation of
damages resulting from the acts by the States responsible (Velásquez Rodríguez Case, Judgment of July 29, 1988. Series C
No. 4, para. 134; Suárez Rosero Case,
Judgment of November 12, 1997. Series C No. 35, para. 37).
72. In
addition to direct evidence, -whether it be personal, expert or documental-,
international tribunals and domestic courts may base judgments on circumstantial
evidence, indications or presumptions provided that they lead to sound conclusions
in regards to the facts. In this respect,
the Court has previously stated that
in the exercise of
its jurisdictional functions and when ascertaining and weighing the evidence
necessary to decide the cases before it, the Court may, in certain circumstances,
make use of both circumstantial evidence and indications or presumptions on
which to base its pronouncements when they lead to consistent conclusions
in regards the facts (Gangaram Panday
Case, Judgment of January 21, 1994. Series C No. 16, para. 49; see also Loayza Tamayo Case, Judgment of
September 17, 1997. Series C No. 33, para. 42; Castillo Páez Case, Judgment of November 3, 1997. Series C No. 34,
para. 39; Blake Case, Judgment of
January 24, 1998. Series C No. 36, para. 49).
73.
In the instant Case the Court, with full discretion, admitted most
of the evidence -documentary, personal and expert- offered to it by the parties;
it even ordered some probative elements it deemed necessary. Those that were presented extemporaneously and without justification
by the State were rejected on the basis of clear statutory provisions (Article 43
of the Rules of Procedure).
74. With
regard to the objection which, for a variety of reasons, the State raised
to some witnesses and experts, the normal practice of this Court, unlike that
of the domestic tribunals, has been to receive the statements and reports,
leaving their final evaluation for the appropriate procedural phase.
75. In
relation to the newspaper articles, they do not have the status of documentary
evidence. However, they are important
in that they are the expression of public and well-known facts, and they corroborate
the testimony received in the case with regard to the circumstances of the
victims’ arrests and murders.
76. In conclusion,
any domestic or international tribunal must be aware that proper evaluation
of evidence according to the rule of "sound criticism" will allow
judges to arrive at a decision as to the truth of the alleged acts.
77. The
report of the Guatemalan National Police and the previous police investigative
reports, which contain data, interrogations and a number of statements produce
probative elements which, in the Court’s view, are important as a basis for
this Judgment.
78. The
declaration made by the investigators of the National Police of Guatemala
on the responsibility of the six Treasury Police agents for the acts denounced
must be considered by the Court, bearing in mind that those agents and others
were subsequently identified by eyewitnesses of the aforesaid kidnappings
and by the very victims who were mistreated.
79. This
National Police report, having being acknowledged and ratified before this
Court by the persons responsible for it (supra,
para. 67 (h) and (p)), has the status of evidence in that its investigations
and conclusions corroborate the evidence delivered before this Tribunal.
80. The
merit of this investigation was not disputed by the State; on the contrary,
the Agent referred to it in the following terms in his closing arguments:
a police investigation
conducted by a State investigation body, which warrants the respect of the
State
[…]
the State has conducted
[…] an outstanding police investigation, described as such by the [C]ommission
and by experts.
81. The
Court grants circumstantial status to the numerous previous police reports
used as a basis for the final report. These
reports contain interrogations, declarations, descriptions of places and facts,
legal practices such as those relating to the removal of the victims’ corpses
and other information. These previous
police reports are useful in the instant Case because, by the rules of sound
criticism, they help form an opinion on the facts; all the more so in these
situations of kidnappings and violent death, in which attempts are made to
erase any trace that would betray their perpetrators.
82. Analysis
of the witnesses’ statements made to this Court or to the Guatemalan Police,
shows that those who took part in the arbitrary arrests did not always wear
uniforms that would identify them as State agents. The murdered victims’ captors
wore "civilian clothes"
and even sportswear, as in the case of Ms. Paniagua-Morales. Some of the captors
of those who were taken to the Treasury Police premises wore uniforms, while
others wore civilian clothes, as attested to by Mr. Vásquez, Mr. Montenegro,
Mr. Montes-Letona et al., but they
were always armed.
83. It
has been established that the vehicle used to convey most of the victims after
their detention was a white "van". Both the Ford and the Nissan
Cherry Vanette (used in Mr. González-López’s abduction) were later identified,
except in the cases of Mr. González-Rivera, Mr. Corado-Barrientos and
Mr. Erik Chinchilla.
84. There
is also a certain similarity in the manner in which the victims were killed,
except for Mr. Erik Leonardo Chinchilla, who was shot. The others were stabbed to death (Ms. Paniagua-Morales,
Mr. González-Rivera and Mr. Corado-Barrientos) or strangled (Mr. Gómez-Ayala
and Mr. González-López). Those five victims were brutally murdered and there are clear signs
that they were tortured, as shown in the autopsy reports, documents pertaining
to the removal of the bodies, photographs, and the report by expert Robert C. Bux.
85. Victims
González-Rivera and Corado-Barrientos, who, according to witness González-Saquij,
walked away with the armed man, were presumably placed inside a vehicle where
there were other armed persons besides the one seen by the witness. It was
reported on page 6 of the Guatemala City newspaper "El Gráfico"
of February 12, 1988 that witnesses saw those two persons put into a
white van with tinted windows. The reporters’ article included the attached
police report.
86. While
this newspaper report may not suffice as evidence in the case of these two
victims, there is further probative evidence, such as the similar pattern
of their deaths and their captors’ cruelty, as already noted.
87. Moreover,
with respect to Mr. González-Rivera and Mr. Corado-Barrientos, the Court considers
that State agents were involved in their detentions and murders, whether or
not they were "G‑2"
(Military Intelligence) or from the Treasury Police itself. This case was also included in the investigations on record
in the National Police report which attributed responsibility to the agents
of the State.
88. With regard
to the official autopsies performed on the victims, the report of expert Robert
C. Bux, who saw the autopsies and was able to compare them with the photographs
in preparation of his report, is deemed by the Court to be flawed in that
they make no mention of wounds, contusions or other details that could have
signaled the abuse and torture to which the victims were subjected prior to
their deaths.
IX
89. The
Court now considers the following significant facts corroborated through the
submissions of the State and the Inter-American Commission, as well as the
documentary and testimonial evidence presented in the instant Case.
a. Between
June 1987 and February 1988, Guatemala witnessed a series of arbitrary detentions
described as kidnappings, accompanied by ill-treatment, torture and, in some
cases, deprivation of life. Some of
those detained were taken to the premises of the Treasury Police where they
were abused; others, whose place of detention remains unknown, were found
dead and their bodies, bearing signs of physical violence, were abandoned
the same day or a few days after their detention on the streets in and around
Guatemala City.
(cfr.
Police report, official communication No. 3214 Ref. BIEN. FOA/rrh, of June
6, 1988; interview with Eugenio Ruano contained in police report of February
15, 1988, signed by the acting chief of the Anti-Kidnapping Section of the
Special Investigations and Narcotics Brigade of the National Police; statement
by María Luisa Chinchilla‑Ruano on February 20, 1987 (rectius 1988);
sworn declaration of Marco Antonio Montes-Letona on March 15, 1988 at the
Office of the Warden of the Pavón Criminal Rehabilitation Farm; notarial act
signed by José Antonio Montenegro on March 15, 1988, at the Office of
the Warden of the Pavón Criminal Rehabilitation Farm; notarial act signed
by Oscar Vásquez on March 15, 1988, at the Office of the Warden of the Pavón
Criminal Rehabilitation Farm; notarial act signed by Delia Amparo Hernández-Mejía
on March 16, 1988; notarial act signed by Raquel de Jesús Solórzano on March
16, 1988; statement by Miriam Elizabeth Huertas de Gatica on March 16, 1988;
statement by Graciela Cante of March 16, 1988; interview with Josefa González-Rivera,
a.k.a. "María", contained in police report of March 21, 1988, signed by Rudy Alex
Miranda-Ramírez, Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández, Chief
of the Homicide Squad of the National Police; interview with Gilberto González-Saquij
contained in police report of March 22, 1988; statement by Ms. Blanca Alicia
Ochaeta-Corzo de Ortiz, delivered by notarial act at the Special Investigations
and Narcotics Brigade of the Department of the National Police on April 28,
1988; statement by Ms. Bertha Violeta Flores-Gómez, delivered through notarial
act at the Special Investigations and Narcotics Brigade of the Department
of the National Police on May 5, 1988; notarial act signed by Augusto Angárita-Ramírez
at the "Pavón Model Rehabilitation Farm" on May 5, 1988; sworn statement
by María Elizabeth Chinchilla de González delivered on May 5, 1988; sworn
statement by María Elizabeth Chinchilla de González of May 13, 1988;
statement by Ms. Blanca Alicia Ochaeta-Corzo de Ortiz, delivered through notarial
act at the Special Investigation and Narcotics Brigade of the Department of
the National Police on May 20, 1988; interview with Gilberto González-Saquij
contained in police report of May 25, 1988; notarial act signed by Augusto
Angárita-Ramírez at the "Pavón Model Rehabilitation Farm" on June 15, 1988; statement by
Doris Torres-Gil to the Seventh Judge of Criminal First Instance of June 15,
1988; expansion of the statement delivered to the Seventh Court of Criminal
First Instance by Doris Torres-Gil on June 23, 1988; statement by Carlos René
Juárez-Hernández, National Police investigator in the Special Investigations
and Narcotics Brigade, of July 13, 1988; testimony of María Idelfonsa Morales
de Paniagua; testimony of Blanca Lidia Zamora de Paniagua; and testimony of
Oscar Humberto Vásquez).
b. Armed men, most of them wearing civilian
clothes, connected with the Treasury Police or with some military or police
institution, took part in the arbitrary arrests referred to in the instant
Case.
(cfr. Police report,
official communication No. 3214 Ref. BIEN. FOA/rrh, of June 6, 1988; interview
with Eugenio Ruano contained in police report of February 15, 1988, signed
by the acting chief of the Anti-Kidnapping Section of the Special Investigations
and Narcotics Brigade of the National Police; statement by María Luisa Chinchilla‑Ruano
on February 20, 1987 (rectius 1988); sworn declaration of Marco Antonio Montes-Letona
on March 15, 1988 at the Office of the Warden of the Pavón Criminal Rehabilitation
Farm; notarial act signed by José Antonio Montenegro on March 15, 1988,
at the Office of the Warden of the Pavón Criminal Rehabilitation Farm; notarial
act signed by Oscar Vásquez on March 15, 1988, at the Office of the Warden
of the Pavón Criminal Rehabilitation Farm; notarial act signed by Delia Amparo
Hernández-Mejía on March 16, 1988; notarial act signed by Raquel de Jesús
Solórzano on March 16, 1988; statement by Miriam Elizabeth Huertas de Gatica
of March 16, 1988; statement by Graciela Cante of March 16, 1988; interview
with Josefa González-Rivera, a.k.a. "María", contained in police report of March 21, 1988, signed by Rudy Alex
Miranda-Ramírez, Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández, Chief
of the Homicide Squad of the National Police; interview with Gilberto González-Saquij
contained in police report of March 22, 1988; statement by Ms. Blanca Alicia
Ochaeta-Corzo de Ortiz, delivered by notarial act at the Special Investigations
and Narcotics Brigade of the Department of the National Police on April 28,
1988; statement by Ms. Bertha Violeta Flores-Gómez, delivered through notarial
act at the Special Investigations and Narcotics Brigade of the Department
of the National Police on May 5, 1988; notarial act signed by Augusto Angárita-Ramírez
at the "Pavón Model Rehabilitation Farm" on May 5, 1988; sworn statement
by María Elizabeth Chinchilla de González delivered on May 5, 1988; sworn
statement by María Elizabeth Chinchilla de González on May 13, 1988;
statement by Ms. Blanca Alicia Ochaeta-Corzo de Ortiz, delivered through notarial
act at the Special Investigation and Narcotics Brigade of the Department of
the National Police on May 20, 1988; interview with Gilberto González-Saquij
contained in police report of May 25, 1988; notarial act signed by Augusto
Angárita-Ramírez at the "Pavón Model Rehabilitation Farm" on June 15, 1988; statement by
Doris Torres-Gil to the Seventh Judge of Criminal First Instance of June 15,
1988; expansion of the statement delivered to the Seventh Court of Criminal
First Instance by Doris Torres-Gil on June 23, 1988; statement by Carlos René
Juárez-Hernández, National Police investigator in the Special Investigations
and Narcotics Brigade, on July 13, 1988; testimony of María Idelfonsa Morales
de Paniagua; testimony of Blanca Lidia Zamora de Paniagua; and testimony of
Oscar Humberto Vásquez).
c. In most cases, the persons detained were
forced into a white "van-type" vehicle (a kind of minibus or van).
(cfr. Police report,
official communication No. 3214 Ref. BIEN. FOA/rrh, of June 6, 1988; interview
with Eugenio Ruano contained in police report of February 15, 1988, signed
by the acting chief of the Anti-Kidnapping Section of the Special Investigations
and Narcotics Brigade of the National Police; statement by María Luisa Chinchilla‑Ruano
of February 20, 1987 (rectius 1988); sworn declaration of Marco Antonio Montes-Letona
on March 15, 1988 at the Office of the Warden of the Pavón Criminal Rehabilitation
Farm; notarial act signed by José Antonio Montenegro on March 15, 1988,
at the Office of the Warden of the Pavón Criminal Rehabilitation Farm; notarial
act signed by Oscar Vásquez on March 15, 1988, at the Office of the Warden
of the Pavón Criminal Rehabilitation Farm; notarial act signed by Delia Amparo
Hernández-Mejía on March 16, 1988; notarial act signed by Raquel de Jesús
Solórzano on March 16, 1988; statement by Miriam Elizabeth Huertas de Gatica
of March 16, 1988; statement by Graciela Cante of March 16, 1988; interview
with Josefa González-Rivera, a.k.a. "María", contained in police report of
March 21, 1988, signed by Rudy Alex Miranda-Ramírez, Edwin Gudiel-Alveño and
Reinaldo Rodríguez-Hernández, Chief of the Homicide Squad of the National
Police; interview with Gilberto González-Saquij contained in police report
of March 22, 1988; statement by Ms. Blanca Alicia Ochaeta-Corzo de Ortiz,
delivered by notarial act at the Special Investigations and Narcotics Brigade
of the Department of the National Police on April 28, 1988; statement by Ms.
Bertha Violeta Flores-Gómez, delivered through notarial act at the Special
Investigations and Narcotics Brigade of the Department of the National Police
on May 5, 1988; notarial act signed by Augusto Angárita-Ramírez at the "Pavón Model Rehabilitation Farm" on May 5, 1988; sworn statement
by María Elizabeth Chinchilla de González delivered on May 5, 1988; sworn
statement by María Elizabeth Chinchilla de González on May 13, 1988;
statement by Ms. Blanca Alicia Ochaeta-Corzo de Ortiz, delivered through notarial
act at the Special Investigation and Narcotics Brigade of the Department of
the National Police on May 20, 1988; interview with Gilberto González-Saquij
contained in police report of May 25, 1988; notarial act signed by Augusto
Angárita-Ramírez at the "Pavón Model Rehabilitation Farm" on June 15, 1988; statement by
Doris Torres-Gil to the Seventh Judge of Criminal First Instance of June 15,
1988; expansion of the statement delivered to the Seventh Court of Criminal
First Instance by Doris Torres-Gil on June 23, 1988; statement by Carlos René
Juárez-Hernández, National Police investigator in the Special Investigations
and Narcotics Brigade, of July 13, 1988; testimony of María Idelfonsa Morales
de Paniagua; testimony of Blanca Lidia Zamora de Paniagua; and testimony of
Oscar Humberto Vásquez).
d. The names of the persons included in the
Commission’s application and the details of the facts deemed to have been
proven are as follows:
1) Concerning
Mr. Julián Salomón Gómez-Ayala:
detained by five persons on June 1, 1987, at 10.00
a.m., while walking in Zone 11 of Guatemala City;
forced into a white "van" by armed persons;
his body was found in the early hours of the morning
of June 17, 1987 in Zone 8 of Guatemala City;
the corpse bore wounds, especially on the neck (the
deepest) and the chest; it also had an indentation on each wrist indicating
that they had been bound, and another indentation on the neck from hanging;
the home of Mr. Gómez-Ayala and his companion Bertha
Violeta Flores‑Gómez was visited, before and after his detention, by
persons recognized as Treasury Police agents.
(cfr. Interview with Josefa González-Rivera, alias "María", contained in police report of
March 21 of 1988, signed by Rudy Alex Miranda-Ramírez, Edwin Gudiel-Alveño
and Reinaldo Rodríguez-Hernández, Chief of the Homicide Squad of the National
Police; police report of March 21, 1988, signed by Rudy Alex Miranda-Ramírez,
Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández, Chief of the Homicide
Squad of the National Police; examination proceeding contained in report No.
"3" of the Homicide Squad of the National
Police of Guatemala, C.A. of March 22, 1988, signed by Rudy Alex Miranda-Ramírez,
Edwin Gudiel-Alveño and Reinaldo Rodríguez-Hernández, Chief of the Homicide
Squad of the National Police; statement by Ms. Blanca Alicia Ochaeta-Corzo
de Ortiz, delivered through notarial act at the Special Investigations and
Narcotics Brigade of the National Police Department on April 28, 1988; statement
by Ms. Bertha Violeta Flores-Gómez, delivered through notarial act at
the Special Investigations and Narcotics Brigade of the National Police Department
on May 5, 1988; statement by Ms. Blanca Alicia Ochaeta-Corzo de Ortiz, delivered
through a notarial act at the Special Investigations and Narcotics Brigade
of the National Police Department on May 20, 1988; police report, official
communication No. 17020/cme of June 17, 1987; police report of June 17,
1987, signed by Roel Mermelino Galindo-Cano, Chief of the Homicide Squad of
the National Police, Guatemala, C.A.; forensic autopsy report, official communication
DI-19/87 of June 18, 1987 and report delivered by expert Robert C. Bux to
the Inter-American Court).
2) Concerning
Mr. Augusto Angárita-Ramírez and
Ms. Doris Torres-Gil:
detained on December 29, 1987, by uniformed members
of the Treasury Police. There are contradictions regarding the time and circumstances
of the arrests;
taken away in a white Ford Econoline van with tinted
windows;
taken to the premises of the Treasury Police;
during his detention, Mr. Angárita was beaten and
injured by members of the Treasury Police.
(cfr. Official communication No. F-1580. I-613-88.- of June 15, 1988,
signed by Dr. Mario Alfredo Porres O., Forensic Expert of the Republic of
Guatemala, addressed to the Seventh Court of First Criminal Instance; notarial
act by Augusto Angárita-Ramírez at the "Pavón" Rehabilitation Model Farm on May 5,
1988; statement by Doris Torres-Gil to the Seventh Court of First Criminal
Instance on June 15, 1988; petition by Augusto Angárita-Ramírez to the
Minister of the Interior of Guatemala; statement by Augusto Angárita‑Ramírez
to the Seventh Court of First Criminal Instance delivered at the "Pavón" Rehabilitation Model Farm on June 15, 1988; statement given to the
Seventh Court of Criminal First Instance by Doris Torres-Gil on June 23, 1988;
report of expert Robert C. Bux to the Inter-American Court and brief of closing arguments by the State, folio 2).
3) Concerning
Ms. Ana Elizabeth Paniagua-Morales:
detained at approximately 6.00 a.m. on February 9,
1988, near her home (Tenth Avenue "A" 10-78, Zone 7, Castillo Lara
Estate) by a group of men wearing sports clothes, when she went out to buy
food;
forced into a white "van" with tinted windows;
a writ of habeas
corpus was filed on her behalf on the day of her arrest;
her body was found on February 11, 1988, in the Municipality
of Palencia, Zone 3, Guatemala City, covered with wounds and traces of
physical violence; her head had been almost severed from the body;
her family was constantly harrassed by the police
and some of her relatives were forced to flee Guatemala.
(cfr.
Police report of February 10, 1988; police report of February 12, 1988; expansion
of police report of February 12, 1988; petition presented by María Idelfonsa
Morales de Paniagua contained in police report of February 15, 1988; interview
with Eugenio Ruano contained in police report of February 15, 1988; official
communication of the Anti-Kidnapping and Extortion Squad of the Special Investigations
and Narcotics Brigade of the National Police of February 15, 1988; official
communication No. A-567.B-70/95 of the Forensic Department of the Republic
of Guatemala, C.A., dated December 22, 1995 and signed by Dr. Alonso René
Portillo; testimony of María Idelfonsa Morales de Paniagua; testimony of Blanca
Lidia Zamora de Paniagua and report of expert Robert C. Bux to the Inter-American
Court).
4) Concerning
Mr. William Otilio González-Rivera and Mr. Pablo Corado-Barrientos:
On February 10, 1988, the day of their disappearance,
the victims were detained by a State agent wearing a pistol and two cartridges;
an article in the daily paper "El Gráfico"
of February 12, 1988 reports that Mr. González and Mr. Corado were forced
into a white "van" by armed men;
their bodies were found the same day, February 10,
1988, in Zone 4 (Second Street, Route 6) of Guatemala City and showed signs
of violence and injuries, one of which caused their deaths.
(cfr. Police report of February 10, 1988, issued by the
officer III of the National Police of Guatemala; certificate of removal of
the corpses issued by the Thirteenth Criminal Magistrate’s Court of Guatemala
on February 10, 1988; interview with Gilberto
González-Saquij contained in police report of March 22, 1988;
interview with Gilberto González-Saquij contained in police report of May
25, 1988; autopsy report of February 12, 1988, reproduced in official
communication No. F-1655. D-72-88 of June 22, 1988; autopsy report of February
12, 1988, reproduced in official communication No. 3006-88 of June 22, 1988;
statement by Carol René Juárez-Hernández, National Police investigator with
the Special Investigations and Narcotics Brigade of the National Police and
expert report by Robert C. Bux to the Inter-American Court).
5) Concerning
Mr. Manuel de Jesús González-López:
detained at approximately 6.00 p.m. on February 11,
1988 outside his home in the Mezquital Estate in Zone 12 of Guatemala City
by persons wearing civilian clothes;
forced into a white 1986 Nissan Cherry Vanette vehicle;
his body was found on February 13, 1988, close to
the highway leading from Villa Canales to the El Zapote Farm, and bore an
indentation on the neck from hanging, with signs of bruising and indications
that his wrists had been bound.
(cfr. Testimony of María Elizabeth Chinchilla de González;
police report of February 13, 1988; police report of the Special Crimes and
Narcotics Section of the Homicide Squad of the National Police of April 4,
1988; sworn statement by María Elizabeth Chinchilla de González delivered
to Notary Jorge Humberto Castillo de León on May 5, 1988; sworn statement
by María Chinchilla de González delivered to Notary Fernández-Font on May
13, 1988; death certificate issued by Registrar of the Capital - Municipality
of Guatemala on May 14, 1990, and report of expert Robert C. Bux).
6) Concerning
Mr. Oscar Vásquez:
detained on February 13, 1988 by Treasury Police
agents subsequently identified as such;
forced into a white van with tinted windows and no
license plates;
taken to the premises of the Treasury Police where
he was beaten;
placed at the disposal of the Twelfth Criminal Justice
of Peace of Guatemala by the Treasury Police at 2:00 a.m. on February 14,
1988, through official communication No. 167, accused of illegal traffic in
pharmaceutical products and drugs or narcotic substances, and active bribery.
(cfr. Official communication No. 167.- REF. GCD/Jmpo
of February 14, 1988, from the Chief of the Treasury Police II to the Twelfth
Criminal Justice of Peace of Guatemala City; notarial act signed by Oscar Vásquez
on March 15, 1988, at the Office of the Warden of the Pavón Criminal Rehabilitation
Farm; notarial act signed by José Antonio Montenegro on March 15, 1988, at
the office of the warden of the Pavón Criminal Rehabilitation Farm; notarial
act signed by Raquel de Jesús Solórzano on March 16, 1988; notarial act signed
by Delia Amparo Hernández-Mejía on March 16, 1988; official communication
of June 13, 1988, signed by Judge Otto Fernando Palma-Chacón, XII the Criminal
Justice of Peace and addressed to the Seventh Court of Criminal First Instance;
testimony of Oscar Humberto Vásquez, testimony of Raquel de Jesús Solórzano,
report of expert Robert C. Bux and brief of final pleadings by the State,
folio 2).
7) Concerning
Mr. José Antonio Montenegro:
detained on February 13, 1988 by three men in civilian
clothes, who were identified as investigation agents of the Special Investigations
and Narcotics Brigade (BIEN);
taken away in a white "van" with tinted
windows, which he later identified, whose interior contain a bench, a spare
tire, and Mr. Oscar Vásquez;
taken to the premises of the Treasury Police, where
he was beaten;
he was placed at the disposal of the Twelfth Criminal
Court of Guatemala by the Treasury Police at 2.00 a.m. on February 14, 1988,
through communication No. 167, accused of illegal traffic in pharmaceutical
products and drugs or narcotic substances, and active bribery.
(cfr. Official communication No. 167.- REF. GCD/Jmpo
of February 14, 1988, from the Chief of the Treasury Police II to the Twelfth
Criminal Justice of Peace of Guatemala City; notarial act signed by José Antonio
Montenegro on March 15, 1988, at the Office of the Warden of the Pavón Criminal
Rehabilitation Farm; notarial act signed by Oscar Vásquez on March 15, 1988,
at the Office of the Warden of the Pavón Criminal Rehabilitation Farm; statement
by Miriam Elizabeth Huertas de Gatica delivered on March 16, 1988, to Notary
Eduardo Roberto González-Garnica; statement by Graciela Cante delivered on
March 16, 1988, to Notary Eduardo Roberto González-Garnica; official communication
of June 10, 1988, signed DEM Infantry Colonel Julio Enrique Caballeros-Seigne,
Director-General of the National Police, addressed to the Seventh Court of
Criminal First Instance; official communication of June 13, 1988, signed by
Judge Otto Fernando Palma-Chacón, XII Criminal Justice of Peace and addressed
to the Seventh Court of Criminal First Instance; official communication No.
802/jlop from the Chief of the Warrants Office of the Special Investigations
and Narcotics Bureau of the National Police of Guatemala and brief of final
pleadings by the State, folio 2).
8) Concerning
Mr. Erik Leonardo Chinchilla:
shot dead in circumstances that have not been clarified;
the preliminary police investigation did not generate due criminal process.
(cfr. Interview with María Luisa Chinchilla-Ruano contained
in police report of February 20, 1987 (rectius 1988); interview with Mario
Ricardo Alvarez-Guevara contained in police report of February 20, 1988; statement
by Nicomedes Castillo-Guzmán contained in police report of February 22, 1988;
statement by Juan Guillermo Granados-Fernández contained in police report
of February 23, 1988; interview with Sabina Sian contained in police report
of February 23, 1987 (sic); interview with María Cristina Bautista-Marroquín
contained in police report of February 23, 1987 (sic); police report of February
24, 1988, police report of March 3, 1988; interview with Mario Ricardo
Alvarez-Guevara contained in police report of July 23, 1992; interview
with Nicomedes Castillo-Guzmán recorded in police report of July 23, 1992,
and police report of July 23, 1992).
9) Concerning
Mr. Marco Antonio Montes-Letona:
detained on February 19, 1988 by six men, two dressed
in the uniform of the Treasury Police and four in civilian clothes;
forced into a white Ford "van" with tinted
windows bearing license plate P-1233857;
taken to the Treasury Police premises;
brought before the Thirteenth Criminal Justice of
Peace on February 20, 1988, accused of the crimes of fraud, theft and unlawful
use of identity papers.
(cfr. Confidential report of the Special Investigations
and Narcotics Brigade of the National Police of February 19, 1988; police
report of February 23, 1987 (sic); statement by Marco Antonio Montes-Letona
delivered at the office of the Warden of the Pavón Criminal Rehabilitation
Farm on March 15, 1988, official communication of the Special Advisory Service
of the National Police of Guatemala on April 21, 1988; official communication
No. 051/Srio. of June 14, 1988, signed by Luis Alberto Mazariegos-Castellanos,
Thirteenth Magistrate, addressed to the Seventh Judge of Criminal First Instance,
Julio Aníbal Trejo-Duque; report of expert Carlos Roberto Bux and brief of
closing arguments by the State, folio 2).
e. On March 10, 1988, the then Director of
the National Police of Guatemala, Mr. Julio Enrique Caballeros-Seigne, personally
led an operation in which six Treasury Police agents were arrested inside
a white van with the front license plate identified by the flag O-16997. The
statements given during the investigation by the arrested agents, who were
later identified by eyewitnesses and victims as the authors of some of the
arrests and beatings described, contained serious contradictions and discrepancies.
(cfr.
Memorandum of the Third Corps of the National Police of March 10, 1988; police
report, official communication No. 3214 Ref. BIEN. FOA/rrh, of June 6, 1988,
signed by Felicito Olíva-Arias, Chief of the Special Investigations and Narcotics
Brigade of the National Police; questionnaire for interviews of the Treasury
Police agents detained on March 10, 1988; statement by César Augusto Guerra-Ramírez,
delivered to the Chief of the Special Investigations and Narcotics Brigade
of the National Police, Felicito Olíva-Arias, on April 13, 1988; statement
by Neftalí Ramírez-García, delivered to the Chief of the Special Investigations
and Narcotics Brigade of the National Police, Felicito Olíva-Arias, on April
13, 1988; statement by Manuel de Jesús de la Cruz-Hernández, delivered to
the Chief of the Special Investigations and Narcotics Brigade of the National
Police, Felicito Olíva-Arias, on April 13, 1988; statement by Aníbal René
Morales-Marroquín delivered to the Chief of the Special Investigations and
Narcotics Brigade of the National Police, Felicito Olíva-Arias, on April 13,
1988; statement by Juan José Elías-Palma, delivered to the Chief of the Special
Investigations and Narcotics Brigade of the National Police, Felicito Olíva-Arias,
on April 13, 1988; statement by Igloberto Pineda-Juárez, delivered to the
Chief of the Special Investigations and Narcotics Brigade of the National
Police, Felicito Olíva-Arias, on April 13, 1988; statement by José Luis Grajeda-Beltetón,
delivered to the Seventh Judge of Criminal First Instance of Guatemala on
July 19, 1988; statement by Neftalí Ramírez-García, delivered to the Seventh
Judge of Criminal First Instance of Guatemala on July 19, 1988; statement
by Igloberto Pineda-Juárez, delivered to the Seventh Judge of Criminal
First Instance of Guatemala on July 19, 1988; statement by César Augusto
Guerra-Ramírez, delivered to the Seventh Judge of Criminal First Instance
of Guatemala on July 19, 1988; statement by Manuel de Jesús de la Cruz-Hernández,
delivered to the Seventh Judge of Criminal First Instance of Guatemala on
July 19, 1988; statement by Juan José Elías-Palma, delivered to the Seventh
Judge of Criminal First Instance of Guatemala on July 19, 1988; statement
by Aníbal René Morales-Marroquín, delivered to the Seventh Judge of Criminal
First Instance of Guatemala on July 19, 1988; official communication 0618/CSB-Dg.-
of June 8, 1988, signed by Mr. Carlos Salazar Bonilla, Director of the
Treasury Police and addressed to the Seventh Judge of the Criminal First Instance,
single folio; official communication of June 10, 1988, signed by DEM Infantry
Colonel Julio Enrique Caballeros-Seigne, Director-General of the National
Police, addressed to the Seventh Judge of Criminal First Instance; official
communication of June 13, 1988, signed by Judge Otto Fernando Palma-Chacón,
XII Criminal Justice of Peace and addressed to the Seventh Judge of Criminal
First Instance; official communication No. 0475.852/Mhal/arc.- of June
13, 1988, signed by Mr. Carlos Salazar-Bonilla, Director-General of the Treasury
Police, addressed to the Seventh Judge of Criminal First Instance; official
communication No. 802/jlop from the Chief of the Warrants Office of the Special
Investigations and Narcotics Bureau of the National Police of Guatemala and
conclusions of the replies obtained during the interrogation of the six Treasury
Police agents detained in the white “van” - document undated and unreferenced).
f. At the end of the investigations, the
National Police prepared a report dated June 6, 1988, which concluded
that Treasury Police agents had committed a series of crimes using the "van"
confiscated on March 10 of the same year. The Police concluded that the Treasury Police
agents arrested on that day gave false statements about their activities;
that on March 10 they were not making routine vehicle checks as they
claimed in their statement; that several of them had been identified as participants
in the crimes; and that they robbed and tortured their victims after arresting
them. The National Police also concluded
that Treasury Police agents had unlawfully used a number of vehicle license
plates; that agents had made false statements regarding the reason why the
white "van" had no license plate on the day it was confiscated,
and that they had abused their authority and violated the rights of Guatemalan
citizens.
(cfr.
Police report, official communication No. 3214 Ref. BIEN. FOA/rrh, of June
6, 1988, signed by Felicito Olíva-Arias, Chief of the Special Investigations
and Narcotics Brigade of the National Police; statement by César Augusto Guerra-Ramírez,
delivered to the Chief of the Special Investigations and Narcotics Brigade
of the National Police, Felicito Olíva-Arias, on April 13, 1988; statement
by Neftalí Ramírez-García, delivered to the Chief of the Special Investigations
and Narcotics Brigade of the National Police, Felicito Olíva-Arias, on April
13, 1988; statement by Manuel de Jesús de la Cruz Hernández, delivered to
the Chief of the Special Investigations and Narcotics Brigade of the National
Police, Felicito Olíva-Arias, on April 13, 1988; statement by Aníbal René
Morales-Marroquín delivered to the Chief of the Special Investigations and
Narcotics Brigade of the National Police, Felicito Olíva-Arias, on April 13,
1988, and statement by Juan José Elías Palma, delivered to the Chief of the
Special Investigations and Narcotics Brigade of the National Police, Felicito
Olíva-Arias, on April 13, 1988).
g. According to the "operations log"
of the Intelligence Section of the Treasury Police, license plates P‑219022
and P‑123857 were used, along with others, by this institution, although
they belonged to vehicles owned by private citizens.
(cfr.
List of the twenty-four (24) sets of vehicle license plates used by the Treasury
Police, according to the operations log of that institution’s intelligence
squad, issued by the Special Advisory Services of the National Police of Guatemala
on April 21, 1988).
h. The June 6, 1988 report of the National
Police was delivered to the Seventh Criminal Court of Instruction, together
with the following vehicles: a white 1981 Ford Econoline 350 "van"
with only one license plate with the tag No. O‑16997; a white 1986 "Cherry
Vanette" Nissan minibus, with the license plate number P‑89324,
and a brown 1978 Chevrolet Chevy Van 20 with no license plates.
(cfr.
Note of notification of information of June 6, 1988, signed by Justice of
Peace Víctor Hugo Trejo-Deleón and addressed to the Director-General of the
National Police; order of the Seventh Court of Criminal First Instance of
Guatemala of June 7, 1988, and official communication No. 558 Ref. CSB/Jodcp
of July 7, 1988, from the Director-General of the Treasury Police to the Seventh
Judge of Criminal First Instance).
i. On June 8, 1988, Mr. Felicito Olíva-Arias
appeared before the Seventh Court of Criminal First Instance and corroborated
the contents of the National Police report of June 6, 1988, and the complaints
contained therein. The Court ratified
the complaint which origenated the trial in that Court and on the same day
he ordered the initiation of the necessary proceedings to clarify the facts
denounced. These included a summons
issued to seventeen National Police agents involved in the investigation,
44 eyewitnesses and 23 persons identified as injured in the case; instructions
were given for the vehicles mentioned in the court order to be examined and
the courts were asked to process the individual cases concerning the deaths
and disappearances mentioned in the police report of June 6, 1988, and to
report on the proceedings to the Seventh Court.
(cfr.
Summons of Felicito Olíva-Arias to appear before the Seventh Court of Criminal
First Instance on June 8, 1988; order of the Seventh Court of Criminal First
Instance of Guatemala of June 8, 1988 and official communication ref. C‑165.of.7o.
from the Seventh Judge of Criminal First Instance to the Director-General
of the National Police).
j. The Seventh Judge of Criminal First Instance,
Julio Aníbal Trejo-Duque, initiated the preliminary investigation, and on
June 10, 1988 he inspected the Treasury Police "operations log."
(cfr.
Certificate of judicial recognition of June 10, 1988).
k. On July 19 and 20, 1988, Judge Trejo-Duque
ordered the arrest of Aníbal René Morales-Marroquín, Manuel de Jesús de la
Cruz-Hernández, Edwin Arturo Pineda-Hichos, José Luis Grajeda-Beltetón, Juan
José Elías-Palma, César Augusto Guerra-Ramírez, Neftalí Ramírez-García, Igloberto
Pineda-Juárez, Marco Tulio Ramírez-Lorenzana, Edgar René Eguizabal-Morales,
Jorge Edilio Guerra-Lemus, Sarvélio Valdéz-Hernández, Juan Francisco Pensamiento-Alvarado,
Víctor Manuel Samayoa-García, Hugo Silva-Morán and Mario Rolando Marín-León,
all of whom were Treasury Police agents at the time of the events that led
to the instant Case. He also summoned the Director of the Treasury
Police, Oscar Augusto Díaz-Urquizú, and two officers of that police corps
for questioning.
(cfr.
Order of the Seventh Court of Criminal First Instance of Guatemala of July
19, 1988; order of the Seventh Court of Criminal First Instance of July 20,
1988; official communication No. 165/87 Of. 7o. of July 20, 1988, signed by
the Seventh Judge of Criminal First Instance of Guatemala; statement by José
Luis Grajeda-Beltetón delivered to the Seventh Judge of Criminal First Instance
of Guatemala on July 19, 1988; statement by Neftalí Ramírez-García, delivered
to the Seventh Judge of Criminal First Instance of Guatemala on July 19, 1988;
statement by Igloberto Pineda-Juárez, delivered to the Seventh Judge of Criminal
First Instance of Guatemala on July 19, 1988; statement by César Augusto Guerra-Ramírez,
delivered to the Seventh Judge of Criminal First Instance of Guatemala on
July 19, 1988; statement by Manuel de Jesús de la Cruz-Hernández, delivered
to the Seventh Judge of Criminal First Instance of Guatemala on July 19, 1988;
statement by Juan José Elías-Palma, delivered to the Seventh Judge of Criminal
First Instance of Guatemala on July 19, 1988, and statement by Aníbal René
Morales-Marroquín, delivered to the Seventh Judge of Criminal First Instance
of Guatemala on July 19, 1988).
l. Judge Trejo-Duque was kidnapped at 3.45
p.m. on July 20, 1988 and released two days later.
(cfr.
Report of the Anti-Kidnapping and Extortion Section of the Criminal Investigations
Department of the National Police of July 21, 1988; report of the Criminal
Investigation Department, Homicide Investigation Section, of the National
Police of July 23, 1988, signed by José Eduardo Cabrera, Miguel Francisco
Carreto and Mario Alfonso Pérez-Martínez; report of the Anti-Kidnapping and
Extortion Section of the DIC; National Police of July 23, 1988; report
of the Criminal Investigations Department, - Homicide Investigation Section
- of the National Police of July 23, 1988, folio 3; report of the Criminal
Investigations Department of the National Police, Homicide Section, Guatemala,
C.A., of July 26, 1988, folio 9, and testimony of Judge Trejo-Duque).
m. On July 22 the Judge who replaced Judge
Trejo-Duque while he was in captivity, Vicente Sagastume-Pérez, continued
the questioning and ordered the provisional imprisonment of Treasury Police
agents Aníbal René Morales-Marroquín, Manuel de Jesús de la Cruz-Hernández,
Edwin Arturo Pineda-Hichos, José Luis Grajeda-Beltetón, Juan José Elías-Palma,
César Augusto Guerra-Ramírez, Neftalí Ramírez-García, Igloberto Pineda-Juárez,
Marco Tulio Ramírez-Lorenzana, Edgar René Eguizabal-Morales, Jorge Odilio
Guerra-Lemus, Sarvélio Valdéz-Hernández, Juan Francisco Pensamiento-Alvarado,
Víctor Manuel Samayoa-García, Hugo Silva-Morán, Mario Rolando Marín-León,
José Ruben Carías-Ortega, José Germán Mazariegos-Salazar, Benner Orlando Noriega-Batres,
José Antonio Aldana-Fajardo, Francisco Javier Guerra-Trabanino, Jorge Enrique
Pérez-Ruíz, Miguel Humberto Aguirre-López and Manuel Boiton-Ayala, considering
that there was sufficient reason to suppose that they could be guilty of the
crimes of continuous kidnapping, continuous murder, continuous aggravated
robbery, aggravated larceny, unlawful search, abuse of authority and abuse
of individuals. That same day Judge Sagastume-Pérez ordered the arrest of
Mr. Oscar Augusto Díaz-Urquizú, former Director of the Treasury Police, and
two agents, Mr. Tomas Roca-Estrada and Mr. Douglas Rafael Meneses-González.
(cfr.
Order (I) of the Seventh Court of Criminal First Instance of July 22, 1988,
and order of (II) of the Seventh Court of Criminal First Instance of July
22, 1988).
n. Once he had returned to his duties, on
July 26, 1988, Judge Trejo-Duque revoked the orders of provisional imprisonment
against Mr. Díaz-Urquizú and officers Tomas Roca-Estrada and Douglas Rafael
Meneses-González, "on the ground
that there was insufficient reason for ordering [it]", but maintained
the restriction order against them. The
next day Judge Trejo-Duque officially revoked the order of provisional imprisonment
against all the other accused Treasury Police agents, on the ground that "[a]
detailed study of the evidence showed that there was insufficient motive for
maintaining the order of provisional imprisonment issued against the defendants."
All the accused were required to post bail.
(cfr.
Order of the Seventh Court of Criminal First Instance of July 26, 1988; order
of the Seventh Court of Criminal First Instance of July 27, 1988; communication
No. C-165.of.7o.- of August 23, 1988, signed by the Officer of the Seventh
Court of Criminal First Instance).
o. The two decisions ordering the release
of those implicated were appealed and on October 18, 1988 the Tenth Chamber
of the Court of Appeal confirmed them individually, deeming them consistent
with the law. However, that Chamber altered the defendants’ situation and
ordered that they be granted an absolute release instead of a provisional
release on bail.
(cfr.
Order (I) of the Tenth Chamber of the Court of Appeals of Guatemala of October
18, 1988, and order (II) of the Tenth Chamber of the Court of Appeals of Guatemala
of October 18, 1988).
p. No significant progress was made with the investigation
and after the aforesaid decision by the Tenth Chamber of the Court of Appeal
the case is still open and at the indictment ("sumario") stage,
although the State has claimed that on September 10, 12, 14 and 22, 1987 it
undertook action, the outcome of which is unknown to the Court.
X
90. This Court must decide in the present Judgment
whether the facts demonstrated may or may not be imputed to the State. This
calls for a detailed examination of the conditions in which a particular act
or omission that impairs one or more of the rights enshrined in the American
Convention may be attributed to a State Party and, consequently, calls into
question its responsibility in accordance with the rules of international
law.
91. Unlike domestic criminal law, it is not
necessary to determine the perpetrators’ culpability or intentionality in
order to establish that the rights enshrined in the Convention have been violated,
nor is it essential to identify individually the agents to whom the acts of
violation are attributed. The sole
requirement is to demonstrate that the State authorities supported or tolerated
infringement of the rights recognized in the Convention. Moreover, the State’s
international responsibility is also at issue when it does not take the necessary
steps under its domestic law to identify and, where appropriate, punish the
authors of such violations.
92. Guatemala has never disputed that it was
Treasury Police agents who detained several of the victims and later brought
them before the judicial authorities. Where the victims who were deprived
of their liberty and cruelly murdered are concerned, the State maintained
that those acts were committed by common criminals and not by its agents,
so that it could not be held responsible for them.
93. Despite that assertion, this Tribunal is
of the view that the body of evidence concerning the modus operandi in all the cases reveals a similar pattern in the arbitrary
arrests or kidnappings of the victims and the murder of several of them: they
were committed by armed individuals wearing military or police dress and others
wearing civilian clothes; they used light-colored "vans" with tinted
windows without license plates or with private plates; the perpetrators acted
with total freedom and impunity; they neither hid their faces nor acted stealthily;
rather, the arrests were made in broad daylight on a public thoroughfare or
within view of witnesses and the perpetrators, in some cases were identified
as Treasury Police agents, which suggests that all these acts were committed
by agents of the State, and the latter has not proven its assertion to the
contrary.
94. At the same time, it has been shown that
despite the Guatemalan police’s investigation of the acts, considered to be
exhaustive by the parties to the instant Case, the State Judiciary failed
to take diligent and effective measures to prosecute and, where appropriate,
punish those responsible for the acts.
95. Consequently, there is sufficient evidence in this case to conclude that the above-mentioned acts were committed by persons acting as agents of the authorities, and although this Court deems that the violations denounced are not part of State policy or that the senior authorities knew of the actions of the perpetrators, those circumstances were irrelevant to the effects of establishing Guatemala’s international responsibility as a State Party to the Convention, under which it is obliged to ensure to all persons, in this case the victims, the free and full exercise of their human rights
XI
96. The Commission claims that Guatemala violated
the right to personal liberty and security to the detriment of Ms. Ana Elizabeth Paniaguia-Morales, Mr. Julián
Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Pablo Corado-Barrientos,
Manuel de Jesús González-López, Mr. Augusto Angárita-Ramírez, Ms. Doris
Torres-Gil, Mr. José Antonio-Montenegro, Mr. Oscar Vásquez and Mr. Marco
Antonio Montes-Letona, inasmuch as the persons who arbitrarily detained them,
tortured them and, in some cases, murdered them were agents of the State.
The Commission claims that the arrests were arbitrary because there
is no information that "even one
of the kidnappings was carried out with a warrant or that they conformed to
pre-existing procedural or fundamental laws." The State investigated the events as unlawful
acts and supplied the Commission with information proving the responsibility
of the Treasury Police agents. The Commission also underscored the fact that
the Guatemalan National Police itself "concluded that the Treasury Police had ‘abused its power to the detriment
of the public and [had] violated the rights of Guatemalan citizens.’"
97. The Commission pointed out that the arbitrary
deprivation of the victims’ liberty in this case obstructed access to an effective
remedy of habeas corpus, since the
victims were not taken to officially recognized detention centers, but to
Treasury Police premises where they were held incommunicados. The victims
who lost their lives were not registered as detainees in any official document.
98. According to the Commission, Guatemala’s
Political Constitution requires that any detainee be brought before a competent
judicial authority within a maximum of six hours after his or her detention.
The Commission alleged that in everey case this provision was breached.
99. The Commission contended that in the case
of Mr. Vásquez and Mr. Montenegro the State’s claim that they were arrested
while dealing in drugs was entirely unfounded, inasmuch as the sworn statements
of the victims and witnesses did not corroborate this version, nor did the
acts of the Guatemalan National Police, who included these cases in its investigation
of the "white van case."
100. In
its answer to the application, the State denied that it had violated the right
to liberty of the persons indicated to that effect in the Commission’s application
(supra, para. 96), since there was
nothing to suggest any intentionality on the part of the State in that regard.
The State adduced, moreover, that all its actions were designed to clarify
the facts and to punish those responsible.
101. In
its brief of closing arguments, the Commission claimed that the requirement
of an arrest warrant issued by a competent judicial authority is the most
effective means of protecting the right to personal liberty, the only exception
being an arrest in flagrante delicto. The Commission alleged that, from the evidence
submitted in this case, it was proven that the victims were deprived of their
liberty without judicial authorization, which in itself violates the fundamental
principle established in Article 7 of the American Convention, and that during
the proceedings the State neither produced any warrant in justification of
the victims’ detention nor showed that the arrests had been made in
flagrante delito.
102. The
Commission further claimed that the Treasury Police did not record the arrests,
prevented the detainees from making any contact with the outside world, did
not present them before any competent judicial authority within the six-hour
deadline prescribed in the Constitution and denied them access to the remedy
of habeas corpus established in
Article 7(6) of the Convention. According
to the Commission, the clandestine nature of the arrests in this case denied
the victims access to the non-derogable judicial guarantees.
103. Regarding
the remedy of habeas corpus, the
Inter-American Commission pointed out that the victims were denied access
to simple and prompt recourse because, in the case of Ana Elizabeth Paniagua-Morales,
the writ of habeas corpus filed
by her mother yielded no result. It added that a number of witnesses testified that the remedy of
habeas corpus was ineffectual at the time
the events occurred; that 5,729 writs of habeas corpus had been filed between August 1987 and December 1989
and that 80% of them had not yielded any result. According to the Commission,
this claim was amply corroborated by the reports of experts Anderson (supra, para. 67 (m)), Mayora (supra, para. 67 (j)) and Molina (supra, para. 67 (n)) to this Court.
104. In
its brief of closing arguments, the State maintained that Mr. Augusto Angárita,
Ms. Doris Torres‑Gil, Mr. José Antonio Montenegro, Mr. Marco
Antonio Montes-Letona and Mr. Oscar Vásquez were arrested by Treasury
Police agents and later taken before a justice tribunal. Guatemala further
stated that
[i]n any event there
was room for discussion of the legality or illegality of the arrest but never
the kidnapping. The five appeared before the courts. In the case of Mr. Augusto Angárita-Ramírez and Ms. Doris Torres-Gil
a full trial was conducted up to the point of their acquittal or conviction,
as was the case with Mr. Oscar Vásquez, who had been sentenced to four years’
imprisonment for the crime of drug trafficking and selling narcotic substances.
Mr. Montenegro had been convicted and Mr. Montes‑Letona acquitted.
Consequently, the State of Guatemala did not violate those persons’ right
to personal liberty.
105. Regarding
Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón Gómez-Ayala, Mr. William
Otilio González-Rivera, Mr. Pablo Corado-Barrientos and Mr. Manuel de Jesús
González-López, the State claimed that "[i]t played no part […] in those
persons kidnappings" and that there was no evidence of any motive
for the State to have been involved in the kidnappings and murders described.
106. With
regard to the alleged breach of the right of habeas corpus, the State claimed that no special formalities are attached
to this remedy and that any court may resolve it; further, the remedy could
not be effective in the only case in which it was filed, namely that of Ms.
Ana Elizabeth Paniagua‑Morales, who had been kidnapped and subsequently
murdered by common criminals.
107. In
this connection, Article 7 of the American Convention provides that:
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons
and under the conditions established beforehand by the constitution of the
State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to
arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly
notified of the charge or charges
against him.
5. Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be entitled
to a trial within a reasonable time or to be released without prejudice to
the continuation of the proceedings. His release may be subject to guarantees to assure his appearance
for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse
to a competent court, in order that the court may decide, without delay on
the lawfulness of his arrest or detention and order his release if the arrest
or detention is unlawful. The States
Parties whose laws provide that anyone who believes himself to be threatened
with deprivation of his liberty is entitled to recourse to a competent court
in order that it may decide on the lawfulness of such threat, this remedy
may not be restricted or abolished. The
interested party or another person in his behalf is entitled to seek these
remedies.
[…]
108. In
the case in question, the Court finds that Ms. Ana Elizabeth Paniagua-Morales,
Mr. Julián Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Mr.
Pablo Corado-Barrientos and Mr. Manuel de Jesús González-López were arbitrarily
detained by agents of the State and murdered hours or days later. Indeed,
it has been proven that:
a) Julián Salomón Gómez-Ayala was detained on June 1, 1987 and
his body discovered on June 17 (supra,
para. 89 (d) (1));
b) Ana
Elizabeth Paniagua-Morales was detained on February 9, 1988 and her body discovered
two days later (supra, para. 89
(d) (3));
c) William
Otilio González-Rivera and Pablo Corado-Barrientos were detained on February 10,
1988 and found murdered on the same day (supra, para. 89 (d) (4)); and
d) Manuel
de Jesús González-López was detained on February 11, 1988 and his body found
two days later (supra, para. 89
(d) (5)).
109. Moreover,
Mr. Gómez-Ayala, Ms. Paniagua-Morales and Mr. González-López were placed in
a white "van" used by the Treasury Police and later killed.
110. Although
Mr. González-Rivera and Mr. Corado-Barrientos were deprived of their liberty
under different circumstances, the period of time during which they were detained
is the same, as are the means (steel blades) used to inflict their fatal injuries,
the cruelty of their treatment, and the circumstances in which their bodies
were discovered, all of which suggests that their arrests and deaths form
part of the so-called "white van
case." Moreover, their cases were included in the National
Police report, which the Court has categorized as circumstantial proof (supra,
para. 79). All of the foregoing indicates that the perpetrators
of those persons’ detained and murdered were members of the Treasury Police.
111. The
evidence does not legitimize the State’s declaration that Mr. Vásquez and
Mr. Montenegro were arrested under the circumstances described in the
police reports on records. Under the
appropriate constitutional provision, in the case of flagrante delito there is no need for a warrant to have been issued
by a competent judicial authority. However,
in the cases of Mr. Angárita, Ms. Torres and Mr. Montes, the mere fact of
their acquittal, mentioned by the State in its brief of closing arguments,
shows that they were not caught in the act.
112. The allegations and evidence examined by the Court contain sufficient, grave and converging facts -not diminished by the State- demonstrating that the following persons’ right to liberty was violated by their arbitrary arrests: Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos, Mr. Manuel de Jesús González-López, Mr. Augusto Angárita-Ramírez, Ms. Doris Torres-Gil and Mr. Marco Antonio Montes-Letona, in contravention of the obligations set forth in Article 7 of the American Convention of Human Rights.
XII
113. The Commission requested that the Court declare
that
the State of Guatemala has violated
the right to life, enshrined in Article 4 of the American Convention 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.
The
Commission declared that preservation of the right to life was one of a State’s
fundamental obligations, a right that is non-derogable. Further, they concluded that Ms. Paniagua-Morales,
Mr. Gómez-Ayala, Mr. González-Rivera, Mr. Corado-Barrientos, Mr. González-López
and Mr. Chinchilla were arbitrarily executed by members of the Treasury Police,
in other words, agents of the State. The
Commission added that at no time during the process before it did the State
deny that the victims in this case were murdered by members of the Treasury
Police.
114. In
its answer to the application, the State contended that it was untrue that
it had violated the aforesaid victims’ right to life, a right protected under
its Political Constitution, "from
the very moment of conception."
It further maintained that if the State had deprived those persons
of their lives it "would imply
the existence of the State’s intentionality, which cannot be inferred from
[its] actions." It further stated that there was no evidence of any State intention
in this case, apart from that of investigating the events, punishing those
responsible, and going so far as to conduct a thorough reform of the penal
system.
115. In
its brief of rejoinder, the Inter-American Commission claimed that proof of
intent is not required in order to establish the State’s responsibility for
human rights violations, and declared in its closing arguments that the murders
of six victims in this case (supra,
para. 113) are directly attributable to Guatemala, owing to the arbitrary
deprivation of life by State agents. It also claimed that the State possessed
the means to elucidate these violations and had the obligation to carry out
an effective judicial inquiry designed to prosecute and punish the perpetrators
of those violations.
116. The
Commission further maintained that even when the circumstances surrounding
a death are not completely clarified, international human rights protection
organs have declared the State in question responsible for the violation of
the right to life when that State has not conducted an adequate investigation
of the accusations.
117. Guatemala
indicated in its brief of closing arguments that there is no evidence to show
that it was State officials who deprived the victims who lost their lives
in the instant Case of their liberty. It went on to say that "[i]nstead, there is evidence to the contrary:
there was evidence to show that when members of the Treasury Police officiated
in Guatemala, they did so in uniform." The State claimed that the weapons used by the Treasury Police did
not correspond to those used in the murders of the aforesaid victims, adding
that, however,
the State of Guatemala cannot come
before this Honorable Court to affirm or deny whether any agent could have
been involved: it would be absurd to deny it when an entire police investigation
conducted by a State investigation body, which is deserving of the
State’s respect, upholds this hypothesis and when, moreover, an Attorney-General’s
office accuses them, not to mention the State’s efforts, which will continue
until it finds the perpetrators. How
could the State of Guatemala then deny it? But how can it affirm it if the
presumption of innocence exists as long as there is no conviction? This hypothesis
is not excluded and is one which, with the greatest procedural honesty, the
State of Guatemala has raised before this Honorable Court in the light of
the State’s own investigations.
118. Article
4(1) of the American Convention establishes 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.
119. The
Court now turns to the examination of the cases in which the Commission claims
that the State violated the right to life enshrined in Article 4 of the American
Convention.
120. The
Court has deemed it proven that it was members of the Treasury Police who
deprived the following persons of their liberty: Mr. Gómez-Ayala (supra, paras. 89 (d) (1) and 93), Ms. Paniagua‑Morales
(supra, paras. 89 (d) (3) and 93),
Mr. González-Rivera (supra, paras. 89 (d) (4) and 93), Mr. Corado-Barrientos (supra, paras. 89 (d) (4) and 93) and Mr.
González‑López (supra, paras.
89 (d) (5) and 93). This proof leads the Court to conclude that it was those
agents who deprived these victims of their lives and that their deaths are
therefore imputable to the State.
121. In
the case of Mr. Erik Leonardo Chinchilla, the Court does not find any connection
with members of the Treasury Police, and although the police investigation
mentions an accident in which bodyguards of the Director of the National Police
were allegedly involved, there is no evidence that it was they who killed
him. Furthermore, Mr. Chinchilla was not arrested and he was shot to death,
a different modus operandi that
what was used in the other cases. The
Court has studied the paragraph of an Americas Watch publication (Closing the Space; Human Rights in Guatemala,
May 1987 - October 1988; an Americas Watch Report; November 1988) which
claimed that the murderers were driving a white "van", but no such
evidence has been submitted to the Court.
The finding is that in that case there was insufficient evidence to
impute responsibility for Mr. Chinchilla’s death to the State.
122. Consequently,
the Court declares that Guatemala violated Article 4(1) of the American Convention
to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón
Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos
and Mr. Manuel de Jesús González-López.
CONCERNING MR. OSCAR VÁSQUEZ, MR. CARLOS
MORÁN-AMAYA, MR. JOSÉ ALVINO GRIJALVA-ESTÉVEZ AND MR. ALVARO GONZÁLEZ-TEPAZ
123. Through
the request for provisional measures submitted by the Commission on February 5,
1998, the Court learned that Mr. Oscar Vásquez’s death is the subject of a
proceeding currently before the Inter-American Commission. This information is consistent with the fact
that the Commission did not include that act in the application on which the
instant Case is based. For this reason, the Court concludes that it may rule
only on the facts concerning Mr. Oscar Vásquez’s arrest, but not on his death.
124. The
Court has not found sufficient evidence to link to the present process the
circumstances surrounding the death of Mr. Carlos Morán-Amaya who, according
to the Commission, was Judge Trejo-Duque’s assistant and was involved
in the investigation of the “white van
case.” The Court also notes that Mr. Morán-Amaya was not included as a
victim in the Commission’s petition.
125. With
regard to Mr. José Alvino Grijalva-Estévez and Mr. Alvaro González-Tepaz,
although they were included in the police report as victims of the crimes
allegedly committed by the Treasury Police, the Commission did not include
their names among the victims in the application.
XIII
126. In the brief containing its application, the
Commission claimed that the State violated the right to humane treatment and
requested that the Court find
that Guatemala violated
[this right] enshrined in Article 5 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.
The
Commission declared that the victims were cruelly treated by members of the
Treasury Police and that they were violently beaten and subjected to threats
of all kinds, this being the case both for those victims who survived their
captivity and those who lost their lives and whose bodies bore signs of torture
and mutilation. The Commission further stated that the risk of torture is
particularly high when a person is unlawfully and clandestinely detained.
It concluded by asserting that the State did not investigate the torture inflicted
on the victims as it is required to do by Article 8 of the Inter-American
Convention to Prevent and Punish Torture.
127. In
answer to the application, Guatemala denied that it violated the right to
physical integrity of the persons named in the preceding paragraph, there
being nothing to imply any intentionality on the part of the State in this
regard and repeated that all the State’s actions were geared to clarifying
the facts and punishing those responsible.
128. In
its brief of final arguments the Commission stated that ten victims in this
case were captured and detained by State agents. It claimed that the ill-treatment
of Ms. Paniagua-Morales, Mr. Gómez-Ayala, Mr. González-Rivera, Mr. Corado-Barrientos
and Mr. González-López was deliberate, a fact confirmed by the condition of
their bodies. The Commission pointed out that Mr. Angárita-Ramírez, Ms. Doris
Torres-Gil, Mr. Montenegro, Mr. Vásquez and Mr. Montes-Letona had testified
to the then Judge in the case, Mr. Julio Aníbal Trejo-Duque, that they had
been subjected to torture or cruel or inhuman treatment at the Treasury Police
premises.
129. The
Commission said that it had been proven that the victims, with the exception
of Erik Leonardo Chinchilla, were subjected to intentional acts that produced
pain and physical and mental suffering in order to intimidate and punish them,
in breach of the prohibition of torture.
According to the Commission, when any person suffers any injury while
in State custody it is incumbent upon the State to provide a reasonable explanation
of the causes of such injury by virtue of the
detainee’s particularly vulnerable circumstances.
130. Concerning
the victims who survived their kidnapping, the Commission maintained that
no effective investigation was conducted to determine responsibility for their
injuries and that Guatemala acknowledged that they were captured by members
of the Treasury Police and suffered injuries during their detention. The Commission made specific reference to Judge
Trejo-Duque’s statements before this Court, in which he submitted that the
injuries suffered by some victims who survived their captivity could have
been produced while they were resisting arrest. In this regard, the Commission
stated that
[w]hat was required
was not speculation but an effective judicial inquiry to establish whether
violations had been perpetrated and lay the basis for the necessary judicial
response. The Commission pointed out
that Judge Trejo had officially taken note of the injuries suffered at the
hands of State agents, including violent blows to several parts of the body,
and other forms of violence that could only imply torture. The State’s expressed position shows a total
reluctance to respond with due diligence to grave accusations. Four of the five victims were never even examined
by a professional doctor and there is no record of any attempt to adopt elementary
measures to investigate the site of the tortures denounced or to attempt to
locate possible witnesses. (Footnote references have been omitted)
131. In
the brief containing its final arguments, Guatemala indicated that in the
case of Ms. Paniagua-Morales, Mr. Gómez-Ayala, Mr. González-Rivera, Mr.
Corado-Barrientos, Mr. González-López and Mr. Chinchilla it was not responsible
"on the ground that if it did not
in any way participate in the persons’ kidnapping, neither was it involved
in the beatings they received." Concerning Augusto Angárita-Ramírez, the State said that the blows
he received, "while not desirable,
could be normal, in some sense, if there is any kind of confrontation during
the arrest of persons connected with narcotics traffic who obviously try to
resist arrest." The State
also said that Mr. Angárita filed an accusation in this regard and took
advantage of his rights under Guatemalan legislation.
132. Article
5 of the American Convention establishes in this regard that
1. Every person has the right to have his
physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel,
inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall
be treated with respect for the inherent dignity of the human person.
[…]
6. Punishments consisting of deprivation of liberty
shall have as an essential aim the reform and social readaptation of the prisoners.
133. Articles
1, 6 and 8 of the Inter-American Convention to prevent and punish torture
establish that:
1. The
State Parties undertake to prevent
and punish torture in accordance with the terms of this Convention.
[…]
6. In accordance with the terms of Article 1, the States
Parties shall take effective measures to prevent and punish torture
within their jurisdiction.
The States Parties shall ensure that all acts
of torture and attempts to commit torture are offenses under their criminal
law and shall make such acts punishable by severe
penalties that take into account their serious nature.
The States Parties likewise shall take effective
measures to prevent and punish other cruel, inhuman, or degrading treatment
or punishment within their jurisdiction.
[…]
8. The States Parties shall guarantee that any person making an accusation
of having been subjected to torture within their jurisdiction shall have the
right to an impartial examination of his case.
Likewise, if there is an accusation or well-grounded
reason to believe that an act of torture has been committed within their jurisdiction,
the States Parties shall guarantee that their respective authorities will
proceed properly and immediately to conduct an investigation into the case
and to initiate, whenever appropriate, the corresponding criminal process.
After all the domestic legal procedures of the
respective State and the corresponding appeals have been exhausted, the case
may be submitted to the international fora whose competence has been recognized
by that State.
134. In
the case of the victims who were deprived of the right to life, with the exception
of Mr. Chinchilla, the autopsies reliably revealed signs of torture (tying,
beating, etc). imputable to the State for the same reason that their deaths
are attributable to it (supra, para.
120). Let it be said, moreover, that
the victims were killed by stab wounds to the neck and thorax which increased
their suffering, and in some cases they were even decapitated. This was a pattern and common denominator in
most of the murders connected with the instant Case (supra, para. 93).
135. With
regard to the other victims who were placed at the disposal of the judicial
authorities, the Court notes that in the case of the Mr. Vásquez and Mr. Angárita-Ramírez,
the medical examiner found injuries, grazes and bruises attesting to cruel,
inhuman or degrading treatment while they were in detention. Concerning the
other persons, Ms. Torres-Gil, Mr. Montes-Letona and Mr. Montenegro,
the Court considers that there is insufficient evidence, although some of
them claimed to have been subjected to such treatment.
136. Consequently, the Court finds that Guatemala violated Article 5 (1) and 5 (2) of the American Convention and the obligations set forth in Articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos, Mr. Manuel de Jesús González-López, Mr. Augusto Angárita-Ramírez and Mr. Oscar Vásquez.
XIV
137. The
Commission alleged that Guatemala violated the right to a fair trial in failing
to respect the right of the victims and their relatives to be heard by a competent,
independent and impartial judge or tribunal in order to establish their rights.
According to the Commission, owing to Judge Trejo’s kidnapping
and the threats he received, he could not fulfill the requirements established
in Article 8 of the American Convention, as proven by the succession of events
in the instant Case. The Commission considered it the duty of the State to
ensure the existence of effective judicial remedies and measures to "restore the independence and impartiality of the Seventh Court following
Judge Trejo’s abduction." In
the Commission’s view, in failing to investigate Judge Trejo’s abduction and
to replace him in his functions, Guatemala failed to observe its obligation
to provide an effective judicial remedy.
138. Likewise,
the Commission claimed that the domestic courts’ decision to release the suspects
was unjustified, arbitrary and contrary to the evidence on record. According
to the Commission, recourse to a court of appeal is the "vehicle whereby the legality of judicial decisions
that affect the individual’s fundamental rights and freedoms is examined,"
by seeing that the courts of first instance ensure that the proceeding is
duly implemented. The Commission considered that no adequate
response was given to the appeal filed against the decision to release the
suspects, there being no evidence that the Chamber of Appeals pondered or
weighed its decision, nor that it considered the kidnapping of then Judge
Trejo-Duque to be an important aspect in the analysis of the appeal lodged.
139. The
Commission also considered that the State violated its obligation to conduct,
with the means at its disposal, a serious investigation of the violations
committed, identify and punish those responsible, and ensure appropriate reparations
to the victims. Even though the State
conducted an investigation, following Judge Trejo-Duque’s kidnapping, both
the Department of the District Attorney and the judicial authorities allowed
the process to stagnate and yield no result.
140. In
its answer to the application, the State denied that it violated the right
to a fair trial enshrined in Article 8 of the Convention, inasmuch as
two of the victims brought a criminal action and made formal accusations within
the process, which is still open in order to clarify the facts and punish
those responsible. Likewise, there
has been no denial of justice in this case, since the investigation was promoted
by the State without any restriction and is still being promoted officially;
the State was also concerned enough to seek radical change in the administration
of criminal justice when it introduced the new Code of Penal Procedure by
which the case is governed today.
141. In
its brief of rejoinder, the Commission alleged that the effective suspension
of the judicial inquiry silenced the victims of "execrable crimes and denied them an impartial hearing …", that
it had taken note of the reforms in Guatemala’s criminal court system but
did not consider them germane to this case because the entry into force of
new provisions could not been seen as a solution for violations committed
seven years earlier and does not prove that justice is accessible to the victims
and their relatives.
142. In
its brief of final arguments, the Commission said that there had been multiple
violations of Article 8 of the Convention: it deemed it proven that members
of the Treasury Police obstructed, and did not cooperate as it should in the
investigation, and that Judge Trejo-Duque’s decision of July 27, 1988 was
patently arbitrary and unjustified and was not the decision of an impartial
judge, owing both to the Judge’s personal circumstances and those existing
in Guatemala in 1988, when, according to the Commission, the judicial independence
necessary for investigating cases involving State security agents did not
exist.
143. The
Commission went on to say that the domestic proceeding was not conducted within
the "reasonable time"
required by the American Convention, since no final decision has yet been
reached nor have those responsible been punished; on the contrary, the case
is still at the initial investigation stage.
The Commission pointed out that the judicial proceeding has not even
been initiated in the cases concerning Judge Trejo-Duque’s kidnapping and
the kidnapping and murder of Mr. Erik Leonardo Chinchilla and Mr. Carlos Morán-Amaya.
144. The
State pointed out in its brief of final arguments that no potentially useful
remedy had been filed in the case of the victims who lost their lives, since
they were in the hands of criminals and not in those of State authorities.
145. Regarding
the victims who survived their captivity, Guatemala claimed that habeas corpus was of no avail since they
had been taken before the justice tribunals within legal processes in which
all judicial guarantees were respected.
146. Likewise,
it alleged that Judge Trejo-Duque was not in a position to evaluate anything
which, according to Guatemalan legislation, was not in his possession, in
which case he would have been guilty of perverting the course of justice. The State further pointed out that, on resuming
his functions after his kidnapping, Judge Trejo-Duque discovered new evidence
which probably convinced him that he should revoke the detention of the members
of the Treasury Police.
147. The
State also made mention of the decision of the Court of Appeal dismissing
the case dismissed in the following terms "[w]hat we have here is perhaps an enormous and terrible judicial absurdity,
but one that can and will be broken, and remedies are in place to achieve
that end."
148. Article 8(1) of the American Convention provides
that
[e]very 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.
149. With regard to that article, the Court has
stated that
[f]or cases which
concern the determination of […] rights and obligations
of a civil, labor, fiscal, or any other nature, Article 8 does not specify
any minimum guarantees similar to
those provided in Article 8(2) for criminal proceedings. It does, however, provide for due guarantees; consequently, the individual
here also has the right to the fair hearing provided for in criminal cases. (Exceptions to the Exhaustion of Domestic Remedies
(art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights).
Advisory Opinion OC-11/90. Series
A No. 11, para. 28).
150. It
has been proven that there was widespread fear among those involved in the
so-called "white van case",
corroborated by the eyewitnesses’ reluctance to testify before the then judge
in the case and the failure to conduct a thorough investigation into his kidnapping.
The report delivered by experts Anderson (supra,
para. 67 (m)), Mayora (supra, para.
67 (j)) and Molina (supra, para.
67 (n)) and Mr. Simon’s testimony (supra,
para. 67 (g)) corroborate this assertion.
151. The
Court considered that it is neither necessary nor pertinent to examine the
possible connection of Judge Trejo-Duque’s kidnapping with the instant Case
and the Court has simply noted that the kidnapping was not duly investigated,
nor was any decision taken on the suggestion that the judge had been threatened
and coerced during his captivity.
152. Likewise,
in accordance with the criteria previously established by the Court with regard
to the concept of reasonable time in judicial processes (Genie Lacayo Case, Judgment of January 29, 1997, series C No.
30, para.77; Suarez Rosero Case,
supra, 71, para.72), the Court is of the
view that in the instant Case the proceeding, which is still at the pre-trial
("sumario") stage, has far exceeded the principles of reasonable
time set forth in the American Convention.
The same is true of the case of Mr. Erik Leonardo Chinchilla, in which
there is no evidence that proceedings have been initiated in the justice tribunals.
153. The
considerations contained in the preceding paragraph apply exclusively to the
victims who were deprived of their lives and to the judicial proceeding initiated
to determine the criminal responsibility of the perpetrators of these acts,
but not to the persons who also appear in this case and who were subject to
ordinary criminal trials, since it has not been proven, nor does the Commission
claim that, with regard to these last in particular which have ended, there
was any infringement of the judicial guarantees established in Article 8 of
the Convention.
154. In
this proceeding the State has produced copies of some action taken by its
Agent against the decision to dismiss the case against those involved in the
"white van case" who were tried in
the domestic courts. Those actions,
as well as the promulgation of the a new Code of Penal Procedure, are considered
by the Court to be a voluntary expression of the State’s will to fulfill its
constitutional and conventional obligations, but does not constitute evidence
that the obligation contained in Article 8(1) of the American Convention was
observed in the instant Case.
155. The
Court considers that the so-called "white
van case" was not heard by an independent and impartial tribunal
or within a reasonable time, and that the State did not provide the due guarantees
to ensure the victims due process in determining their rights. Responsibility
for this omission rests with the State, whose duty it was to make those guarantees.
156. The Court therefore considers that Guatemala violated Article 8(1) of the American Convention to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón Gómez‑Ayala, Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos, Mr. Manuel de Jesús González-López and Mr. Erik Leonardo Chinchilla.
XV
157. In
its application the Commission requested the Court to rule that Guatemala
violated the right to judicial protection and, consequently, Article 25 of
the American Convention. That article establishes the right of every person
to simple, prompt and effective recourse for protection against acts that
violate his fundamental rights. According
to the Commission, in this case the State denied the victims access to effective
judicial remedies by, inter alia,
"not guaranteeing them an independent
and impartial tribunal, by issuing arbitrary judicial decisions and by failing
to pursue investigation of the white van crimes."
158. In
its answer to the application, the State declared it to be false that it violated
the victims’ right to judicial protection and judicial guarantees, inasmuch
as two of them "brought criminal
actions and made formal accusations in their capacity as subjects"
in the proceeding that is still open for the purpose of clarifying the facts
and punishing those responsible, and which has progressed without obstruction.
It further averred that the State’s concern was manifest in its introduction
of the new Code of Penal Procedure
in Guatemalan legislation.
159. In
its brief of final arguments, the Commission affirmed that the State denied
the victims in this case and their relatives the right enshrined in Article
25 of the Convention. The Commission
declared that ten years after the events the judicial proceeding is still
at the pre-trial stage; no one has been found or tried; the victims’ relatives
have received no compensation or indemnity and, in the case of Mr. Erik Leonardo
Chinchilla, no judicial process has been initiated.
160. The
Commission also claimed that the general circumstances which prevailed in
Guatemala rendered judicial remedies ineffective inasmuch as the investigation
connected with the "white van case"
took place in an atmosphere of terror and harrassment substantiated by the
mere fact that the judge in the case was kidnapped. According to the Commission,
the statements and reports of Ms. Jean-Marie Simon (supra, para. 67 (g)), Mr. Ken Anderson (supra, para. 67 (m)) and Ms. Olga Molina (supra, para. 67 (n)) contain sufficient
evidence to conclude that Judge Trejo‑Duque and the witnesses in
the case were frightened, as was also evident from their statements to this
Court.
161. In
its brief of final arguments, the State said that all the actions of the then
judge in the case were lawful; that
[p]erhaps Judge Trejo
understood that the action of the Treasury Police in the case of Mr. Angárita,
Ms. Torres-Gil, Mr. Montenegro, Mr. Vásquez and Mr. Montes-Letona accorded
with the law. He perhaps saw that they
had been taken before a court, and had perhaps also understood that the rest
could be the work of criminals, drug traffickers, terrorism or any other type
of crime: in other words, what occurred to Ms. Paniagua, Mr. Gómez-Ayala,
Mr. González-Rivera, Mr. Barrientos, Mr. González‑López, kidnapped,
murdered, injured and perhaps tortured and Erick (sic) Leonardo Chinchilla,
shot dead. Perhaps Judge Trejo understood
all that […].
162. The
State also affirmed that it never acquiesced in the deprivation of the victims’
liberty or the murders of some of them; that those cases were duly investigated
and no pressure of any kind was brought to bear on the judges that heard the
case.
163. Article
25 of the American Convention provides that
1. Every person 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. This
Court has declared that the effectiveness of habeas corpus does not depend merely on its formal existence (Castillo Páez Case, supra 72, paras. 82 and 83; Suárez
Rosero Case, supra 71, para.
63). Habeas corpus must effectively protect persons from acts that violate
their fundamental rights "even
though that violation is committed by persons acting in exercise of their
official functions" (Article 25(1) of the American Convention). The Court further pointed out that the provision
of Article 25
constitutes one of the basic pillars not only of
the American Convention, but of the very rule of law in a democratic society
in the sense of the Convention.
Article 25 is closely
linked to the general obligation contained in Article 1(1) of the American
Convention, in assigning protective functions to the domestic law of States
Parties. The purpose of habeas corpus is not only to
ensure respect for the right to personal liberty and physical integrity, but
also to prevent the person’s disappearance or the keeping of his whereabouts
secret and, ultimately, to ensure his right to life (Castillo Páez Case, supra 72, paras. 82 and 83; Suárez Rosero Case, supra 71 para. 65).
165. With
regard to Article 25 of the Convention, this Tribunal deems it proven that
the persons who were detained and taken before the judicial authorities were
the subject of regular proceedings which have now ended and in which there
was no claim that they had been deprived of the means of defense. On the contrary, the victims who were detained
and cruelly deprived of their lives by members of the Treasury Police of Guatemala
(supra, para. 122), had no possibility of exercising the judicial
guarantee established in that provision.
166. In
effect, the remedy of habeas corpus
filed on behalf of Ms. Paniagua-Morales yielded no result because from the
time she was detained by members of the Treasury Police her whereabouts were
unknown and she was subsequently found dead. This proves the ineffectiveness
of the remedy of habeas corpus,
which did not protect the victim from the acts which agents of the State perpetrated
against her.
167. In
the case of Mr. Erik Leonardo Chinchilla, it has not been proven that members
of the Treasury Police were implicated in the acts that caused his death. As far as the other murdered persons are concerned,
the Court deems it to have been proven that they were denied all access to
the judicial remedy that would have guaranteed both their freedom and their
lives. Those persons were in the hands
of State agents and the State was therefore obliged to create the conditions
required for any remedy to have effective results.
168. The Court
concludes that the State did not fulfill its obligation to provide effective
recourse for Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón Gómez-Ayala,
Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos and Mr.
Manuel de Jesús González-López, in violation of Article 25 of the American
Convention.
XVI
169. The
Commission requested the Court to find that Guatemala violated its obligations
enshrined in Article 1(1) of the Convention to respect and guarantee the rights
contained therein, inasmuch as that instrument requires Guatemala to determine
and identify those responsible for the kidnapping, torture and execution of
the victims and punish them appropriately, and to pay indemnity and make reparation
to the victims or their relatives.
170. In
its answer to the application, the State denied having violated the aforemention
Article, since this "would imply
failure on its part to observe the guarantees enshrined in the Convention"
and claimed that it should not be required to compensate the victims, that
being something that should be decided in the domestic courts, and that they
should not be required to pay costs and expenses. There were no grounds for condemning it and this implies the inadmissibility
of the incidental request.
171. In
its brief of final arguments, the Commission declared that the State violated
the obligation contained in Article 1(1) of the Convention and that even in
the unlikely event that the Court accepts that it was not State agents who
perpetrated violations in this case, the State would be responsible for the
impunity of those crimes. The Commission
went on to say that although some individuals were implicated in the criminal
process conducted in the domestic courts, no one had been tried or punished
and that, to date, the victims in the case have been denied the right to be
compensated and for their aggressors to be punished.
172. Article
1(1) of the Convention provides that
[t]he States Parties to this Convention undertake
to respect the rights and freedoms recognized herein and to ensure to all
persons subject to their jurisdiction the free and full exercise of those
rights and freedoms, without any discrimination for reasons of race, color,
sex, language, religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.
173. The
Court notes that there existed and still exists in Guatemala the situation
of impunity with regard to the acts of the instant case, impunity meaning
the total lack of investigation, prosecution, capture, trial and conviction
of those responsible for violations of the rights protected by the American
Convention, in view of the fact that the State has the obligation to use all
the legal means at its disposal to combat that situation, since impunity fosters
chronic recidivism of human rights violations, and total defenselessness of
victims and their relatives.
174. On
the basis of Article 1(1) of the American Convention, the Court considers
that Guatemala is obliged to organize the public authorities to guarantee
persons subject to its jurisdiction the free and full exercise of human rights,
as also enshrined in the Political Constitution in force (Title I, single
chapter). The foregoing applies whether those responsible for the violations
of those rights are members of the public authorities, private individuals,
or groups.
175. The violations
of the right to personal liberty and safety, to life, to physical, psychological
and moral integrity and to the judicial guarantees established, are attributable
to Guatemala, which has the duty to respect and ensure those rights. Guatemala
is therefore responsible for failure to abide by Article 1(1) of the
Convention, in connection with the declared violations of Articles 4, 5, 7,
8 and 25 thereof.
XVII
176. Article
63(1) of the American Convention provides that
[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.
177. In
the brief containing its application the Commission requested that the Court
[r]equire Guatemala
to identify, try and punish those responsible for the violations in question
in order to combat the perpetrators’ flagrant impunity which undermines and
erodes respect for the law [, that it r]equire Guatemala to compensate the
victims for the aforementioned violations, pursuant to Article 63(1)
of the Convention [and] require Guatemala to pay the costs and expenses incurred
by the victims and their families in processing this case before the Inter-American
Commission and the Inter-American Court, as well as reasonable fees of their
attorneys ...
178. In
the light of the foregoing, the Court considers that Guatemala must order
a genuine and effective investigation to identify and, as appropriate, punish
the persons responsible for the human rights violations in question.
179. Given
the nature of the instant case, the Court cannot rule that enjoyment of the
rights or freedoms violated be restored to the injured parties. On the contrary, it is proper for reparation
to be made for the consequences of the violation of those rights and, hence,
fair compensation must be established, the form and amount of which will be
determined at the reparations stage.
180. The Court will require information and sufficient
evidence to determine the reparations, for which purpose it orders that the
appropriate procedural phase be opened. The Court entrusts the pertinent action
to its President.
XVIII
181. Now, therefore,
THE
COURT
unanimously,
1. Rules that the State of Guatemala violated
Article 7 of the American Convention on Human Rights in relation to its Article
1(1) to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón
Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos,
Mr. Manuel de Jesús González-López, Mr. Augusto Angárita-Ramírez, Ms. Doris
Torres-Gil and Mr. Marco Antonio Montes-Letona.
unanimously,
2. Rules that the State of Guatemala violated
Article 4(1) of the American Convention on Human Rights in relation to its
Article 1(1), to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr.
Julián Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo
Corado-Barrientos and Mr. Manuel de Jesús González-López.
unanimously,
3. Rules that the State of Guatemala violated
Articles 5(1) and 5(2) of the American Convention on Human Rights in relation
to its Article 1(1), and Articles 1, 6 and 8 of the Inter-American Convention
to Prevent and Punish Torture, to the detriment of Ms. Ana Elizabeth Paniagua-Morales,
Mr. Julián Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo
Corado-Barrientos, Mr. Manuel de Jesús González-López, Mr. Augusto Angárita-Ramírez
and Mr. Oscar Vásquez.
unanimously,
4. Rules that the State of Guatemala violated
Article 8(1) of the American Convention on Human Rights in relation to its
Article 1(1), to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr.
Julián Salomón Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo
Corado-Barrientos, Mr. Manuel de Jesús González-López and Mr. Erik Leonardo
Chinchilla.
unanimously,
5. Rules that the State of Guatemala violated
Article 25 of the American Convention on Human Rights in relation to its Article
1(1), to the detriment of Ms. Ana Elizabeth Paniagua-Morales, Mr. Julián Salomón
Gómez-Ayala, Mr. William Otilio González-Rivera, Mr. Pablo Corado-Barrientos
and Mr. Manuel de Jesús González-López.
unanimously,
6. Rules that the State of Guatemala must
conduct a genuine and effective investigation to determine the persons responsible
for the human rights violations referred to in this Judgment and, where appropriate,
punish them.
unanimously,
7. Rules that the State of Guatemala is obliged
to make reparation for the consequences of the declared violations and pay
fair compensation to the victims and, where appropriate, to their next of
kin.
unanimously,
8. Orders the initiation of the reparations phase and entrusts
the pertinent action to its President.
Done
in Spanish and English, the Spanish text being authentic, in San José, Costa
Rica, on this eighth day of March, 1998.
Hernán Salgado-Pesantes
President
Antônio
A. Cançado Trindade
Héctor Fix-Zamudio
Alejandro
Montiel-Arguëllo
Máximo Pacheco-Gómez
Alirio
Abreu-Burelli
Edgar E. Larraondo-Salguero
Judge ad hoc
Manuel E. Ventura-Robles
Secretary
So
ordered,
Hernán Salgado-Pesantes
President
Manuel
E. Ventura-Robles
Secretary
[1] Judge Oliver
Jackman abstained from hearing this case because he had participate at various
stages during its processing before the Inter-American Commission on Human
Rights when he was a member of that Commission. Judges Héctor Fix-Zamudio and Alejandro Montiel-Argüello sat on
the Court pursuant to the provisions of Article 54(3) of the American Convention
on Human Rights, whereby the judges of the Court shall continue to serve
with regard to cases that they have begun to hear and that are still pending.
[2] Rules of
Procedure of the Inter-American Court of Human Rights, approved by the Court
at its XXIII Regular Session held from January 9 to 18, 1991; amended on
January 25 and July 16, 1993.
[3] On August 16, 1995 Oscar Augusto Díaz-Urquizú submitted a brief in his capacity as amicus curiae, which was not formally added to the case file.