On March 1, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission” or the “IACHR”)
received a petition filed by María Guadalupe Muñoz Guzmán and the
Mexican Commission for the Defense and Promotion of Human Rights (jointly
“the petitioners”), in which it was alleged that the United Mexican
States (hereinafter “the State”) bore international responsibility for
the forced disappearance of Miguel Orlando Muñoz Guzmán, as well as for
its subsequent failure to investigate and provide compensation for the
said acts. The petitioners allege that the acts that are the subject of
the complaint violate several of the rights enshrined in the American
Convention on Human Rights (hereinafter the “American Convention”),
namely, the right to life (Article 4); right to humane treatment (Article
5); right to personal liberty (Article 7); right to a fair trial (Article
8); and right to judicial protection (Article 25), in accordance with the
general obligation provided for in Article 1(1) of the aforementioned
According to the petition, Mr. Miguel Orlando Muñoz Guzmán, a
lieutenant in the Mexican army, disappeared on May 8, 1993, at the age of
25. His fellow soldiers in the 26th Battalion of Ciudad Juárez, state of
Chihuahua, Mexico, just before he went on leave last saw him on that date.
The petitioners state that Lieutenant Muñoz Guzmán has not communicated
with them since the date of his disappearance and that he was a dedicated
career officer, a fact that lent no credibility to the army’s official
version of events, which was that he had deserted from the army and
traveled to the United States. The petitioners further state that they
contacted the military authorities on numerous occasions and also filed
the appropriate complaint but that to date no serious investigation has
been carried out in Mexico to ascertain his whereabouts and to punish
those responsible for his forced disappearance. They argue that the
irregularities surrounding this case–including falsification of
Lieutenant Muñoz Guzmán’s signature in a document that was used to
prove his alleged interest in deserting–have been deliberate and
intended to cover up for those responsible. They also allege that they
began to receive anonymous threats, which they attribute to military
personnel, from the time that they brought the complaints.
The State maintains that a serious investigation has been carried
out in Mexico and that it produced no evidence whatsoever that Orlando Muñoz
Guzmán might have been the victim of criminal acts committed by members
of the army or other agents of the State.
Based on the foregoing, the State is requesting the IACHR to
declare the case inadmissible on the grounds that domestic legal remedies
have not been exhausted and that no violations of human rights have taken
Without prejudice to the substance of the complaint, the IACHR
concludes in this report that the petition is admissible, since it meets
the requirements set out in Articles 46 and 47 of the American Convention.
Consequently, the Inter-American Commission decides to notify the
parties of its decision and to continue its substantive consideration of
the alleged violations of Articles 4, 5, 7, 8, and 25 of the American
PROCESSING BY THE COMMISSION
The Inter-American Commission assigned case number 12.130 to the
petition and requested information from the State of Mexico in response to
the pertinent parts of the petition of April 12, 1999.
The State’s response was submitted on July 12, 1999, and
supplemented by additional information on August 4 of the same year. On October 1, 1999, a communication was received in which the
Center for Justice and International Law (CEJIL) was included as a
co-petitioner and observations on the information provided by the State
The IACHR transmitted the observations to the State on October 20,
1999. The State submitted the required information on November 18, 1999,
the pertinent parts of which were transmitted to the petitioners on
December 2, 1999. After an extension that had been requested by the
petitioners and granted by the Inter-American Commission, on March 10,
2000, the petitioners submitted their observations, which were forwarded
to the State on March 23, 2000. On
May 1, 2000, the IACHR granted the State an extension of 30 days within
which to provide information. The information was submitted on June 1,
2000, and communicated to the petitioners on June 6 of the same year.
On October 10, 2000, a hearing was held on the petition at the
headquarters of the General Secretariat of the OAS, at which updated
information was received on the positions of the parties regarding the
admissibility and substance of the petition. María Guadalupe Muñoz Guzmán
and Mrs. María Guadalupe Guzmán Romo, the sister and mother,
respectively, of the alleged victim, participated in the hearing.
POSITIONS OF THE PARTIES
The petition received by the IACHR alleges that Miguel Orlando Muñoz
Guzmán was the victim of a forced disappearance, presumably at the hands
of members of the Mexican army. With
regard to the facts of the case, the petitioners allege the following:
May 8, 1993, no news or information has been received about the
whereabouts of Lieutenant Muñoz. While
army communications allege that he deserted, his family refutes this
contention because he has never contacted them since. They claim,
moreover, that if he deserted this meant that he did so empty-handed since
he left all his belongings behind in the barracks. Since his
disappearance, the army has treated the case as a desertion and has
refused to carry out a serious investigation of the acts, despite the
request of his family and the evidence that suggests that Muñoz could
have been made to “disappear” by members of the armed forces.
the time of his disappearance, Muñoz was a member of the 26th
Battalion, which was headquartered in Ciudad Juárez, Chihuahua. He had
arrived six months before from Nuevo Laredo, Tamaulipas, where he had
received his commission. Mr. Muñoz disappeared on May 8, 1993, one and a
half months after returning from a vacation with his family.
the day of his disappearance Mr. Muñoz spoke with his parents by
telephone from the military barracks. During the conversation, he told
them how happy he was because he would shortly be taking his examinations
to enter the War College (Escuela
Superior de Guerra).
Muñoz Guzmán family, from San Julián, Jalisco, first became suspicious
about his disappearance on May 10, 1993, because he did not call as he had
promised them he would two days previously.
Up to May 16, the family telephoned the Battalion and was told that
Orlando had “deserted.” On May 18, Orlando’s parents went to the
headquarters of the Battalion in Ciudad Juárez and were again told that
Orlando had deserted.
Regarding the investigation, the petitioners allege that the
various instances that took action in Mexico were inefficient and
inadequate. They claim, for example, that the Military Judicial Police
drew up a document on May 11, 1993, implicating Lieutenant Muñoz Guzmán
as it “considers him to be the probable perpetrator of the crime of
desertion.” This was done
although his family had explained to the military authorities why they
thought it unlikely that he had deserted, since he was an honorable and
dedicated soldier and it would be more useful to investigate a captain by
the name of Morales García, who had frequently and unjustifiably punished
Mr. Muñoz Guzmán. The Office of the Military Prosecutor initiated a
Preliminary Investigation No. SC/139/93-V of the alleged desertion of Muñoz
Guzmán, whose file was declared closed on March 22, 1995, and handed over
to the Office of the Public Prosecutor of Chihuahua (“PGJ”).
In addition, the petitioners on July 14, 1993 contacted the Mexican
National Human Rights Commission (“CNDH”) and filed a complaint over
the disappearance of Miguel Orlando Muñoz Guzmán. According to the
petitioners, the CNDH informed them in 1997 that it would not be possible
to make a recommendation because the Office of the Public Prosecutor of
Chihuahua had lost the file.
On June 7, 1993, the family of lieutenant Muñoz Guzmán filed a
request for amparo in the lower
criminal court of the state of Jalisco, which was rejected on the grounds
that the application failed to indicate the place of detention or the
authorities who were allegedly responsible.
In sum, the petitioners contend that the domestic legal remedies
available in Mexico are ineffective in investigating the acts, determining
the whereabouts of Miguel Orlando Muñoz Guzmán, and remedying the
consequences of the violations alleged. They argue in that connection that
the investigation has undergone an unwarranted delay, that it has depended
exclusively on the activity of the victims to move the process forward,
and that from the outset it has been doomed to failure.
For its part, the State of Mexico alleges that Lieutenant Muñoz
Guzmán was not on duty or wearing his military uniform at the time of his
alleged disappearance and that therefore investigation of the acts was
essentially a civilian responsibility. It reviews the action taken by the
Office of the Military Prosecutor and then by the Office of the Public
Prosecutor of Chihuahua, which issued the “reservation agreement” in
the file of September 5, 1995, on grounds that “no evidence whatsoever
had been found to support the presumption that a crime had been committed
against Mr. Muñoz.” Lastly, it notes that the CNDH has opened a file on
this case as part of its Program on Alleged Disappearances.
The State of Mexico alleges that:
investigating authorities have carried out their work in a serious manner.
No evidence emerges from these investigations or from the statements of
the petitioners that Orlando Muñoz may have been the victim of a crime
committed by army personnel or by any public servant.
far, moreover, no evidence exists of the threats that the family of Miguel
Orlando Muñoz is alleged to have received or that these threats might
have been made by public servants.
regard to the request for amparo
that has been filed, that remedy applies in cases of detention or illegal
deprivation of freedom, in which the authorities are involved. It is for
these reasons that amparo was
not the appropriate remedy in this case and that the decision of the court
to disallow it was proper.
On the basis of these arguments, the Mexican State maintains that
the family of Mr. Muñoz should have filed an appeal for review of the
decision of the judge who dismissed the request for amparo
if they were not in agreement with it. The State is of the view that,
since the petitioners did not appeal the aforementioned decision, they had
no right to question the effectiveness of the remedy of amparo
in the present case. It adds that it has fulfilled its responsibility to
indicate the appropriate domestic legal remedy available to the
petitioners, but that the petitioners have not demonstrated the
ineffectiveness of that remedy or the applicability of the exceptions
provided for in the American Convention.
The State declares its “willingness to continue with such
investigations as may be necessary to determine the whereabouts of Miguel
Orlando Muñoz and, as the case may be, whether any public officials or
army personnel were involved in any way.” It then states that “the
investigations of the case in civil court have provided no evidence to
support such a finding and have suggested, on the contrary, the likely
participation of Mr. Muñoz in the commission of a number of crimes.”
Lastly, the State of Mexico contends that the allegations contained
in the petition do not constitute violations of the human rights set out
in the American Convention and that domestic legal remedies have not been
exhausted. Consequently, it requests the IACHR to declare the case
ratione personae, ratione materiae,
ratione temporis, and ratione loci of the Inter-American Commission
The written arguments in this case describe acts which, if proven,
would constitute violations of several of the rights recognized and
enshrined in the American Convention and which are alleged to have
occurred within the territorial jurisdiction of Mexico, at a time when the
obligation to respect and guarantee all the rights set out in that
instrument was in force for the said State.
Consequently, the IACHR is competent ratione
personae, ratione materiae,
ratione temporis, and ratione loci to hear the substance of the
Other requirements for the admissibility of the petition
Exhaustion of domestic legal remedies
The Inter-American Court of Human Rights has provided the following
regarding the rule governing the prior exhaustion of domestic legal
Parties have an obligation to provide effective judicial remedies to
victims of human rights violations (Art. 25), remedies that must be
substantiated in accordance with the rules of due process of law (Article
8(1)), all in keeping with the general obligation of such States to
guarantee the free and full exercise of the rights recognized in the
Convention to all persons subject to their jurisdiction (Art. 1).
The information provided by the two parties in the present case is
consistent with regard to the fact that a military investigation was
launched and then closed and transferred to the general jurisdiction. The
Office of the Public Prosecutor of Chihuahua subsequently launched its
preliminary investigation of the acts alleged, closed the file in 1995 for
lack of evidence, and reopened it to investigate the theft of a briefcase
belonging to Miguel Orlando Muñoz Guzmán. In that investigation, the
Office of the Public Prosecutor decided to institute criminal proceedings
against two officers who had forged documents in order to conceal the
disappearance of the above mentioned briefcase.
The State of Mexico alleges that not all domestic legal remedies
have been exhausted and refers in that connection to the military
investigations, the investigations of the Office of the Public Prosecutor
of Chihuahua, and the investigations carried out by the CNDH which include
the study of the remains discovered in Ciudad Juárez, Chihuahua, in late
The petitioners allege that the domestic legal remedies are
ineffective, but that they have nevertheless used all possible means to
ascertain the whereabouts of Lieutenant Muñoz Guzmán. They claim that
the authorities are not conducting the investigations in an effective
manner, but as isolated questions, thus making it impossible to establish
the facts. They also express concern that the State is not exploring the
relationship between crimes against health (drug trafficking), the acts of
forgery that were investigated, and the disappearance of Miguel Orlando Muñoz
The Commission considers that the family of Mr. Muñoz Guzmán had
access to the legal remedies that were available under the domestic
jurisdiction in Mexico and that they used them in a timely and proper
manner. Thus far, however, those remedies had not operated with the
effectiveness required to investigate a complaint of forced disappearance,
which constitutes a serious violation of human rights. Indeed, more than
seven years have passed since the first complaint was made to the
authorities in Mexico without, up to the date of the adoption of this
report, any definitive determination of how the events occurred. These
questions will be examined during the appropriate stage of the proceeding,
together with the other submissions concerning rights to a fair trial and
to judicial protection.
The Inter-American Commission concludes that for a number of
reasons it has not been possible to exhaust the domestic legal remedies
available in Mexico, despite the fact that more than seven years have
elapsed since the acts took place and were denounced to the authorities
responsible for investigating them. Consequently, the IACHR applies to the
present case the exception provided for in the second part of Article 46
(2) (b) of the American Convention. The causes and effects that prevented
the exhaustion of the domestic remedies will be examined in the report to
be adopted by the IACHR on the substance of the complaint, in order to
determine whether violations of the American Convention have taken place.
Deadline for submission of the petition
The Commission has noted in this case that, after more than seven
years, no definitive ruling has been made on the alleged forced
disappearance of Miguel Orlando Muñoz Guzmán and has established that
this constitutes unwarranted delay in rendering a judgment under the
domestic remedies. Since Article 46(2)(c) of the American Convention is
being applied to this case, there is no need to examine the requirement of
Article 46(1)(b) of the aforementioned international instrument.
The Inter-American Commission is of the view that, under the
circumstances examined, the petition was presented within a reasonable
period from the date on which the acts had been denounced in Mexico.
Duplication of procedures and res
The exceptions provided for in Articles 46(1)(d) and 47(d) of the
American Convention have not been objected to by the Mexican State nor do
they derive from the information contained in the file on the present
Characterization of the acts alleged
The Inter-American Commission considers that, should they be
proven, the acts alleged would constitute violations of the rights
guaranteed in Articles 4, 5, 7, 8, and 25 of the American Convention.
The Inter-American Commission concludes that it has competence to
hear this case and that the petition is admissible in accordance with
Articles 46 and 47 of the American Convention.
Based on the arguments of fact and of law set out above and without
prejudice to the merits of the question,
INTERAMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case admissible insofar as it involves
alleged violations of rights protected in Articles 4, 5, 7, 8, and 25 of
the American Convention.
To notify the parties of this decision.
To continue its deliberation on the substance of the question, and
To publish this decision and to include it in its annual report to
the General Assembly of the Organization of American States.
Done and signed by the Inter-American Commission on Human Rights in the city of Washington, D.C., on December 4, 2000. (Signed): Hélio Bicudo, Chairman; Juan E. Méndez, Second Vice-Chairman; Members: Robert K. Goldman, Peter Laurie, and Julio Prado Vallejo.
Communication from the petitioners dated February 24, 1999, pp. 1 and
The State of Mexico deposited its instrument of ratification of the
American Convention on April 3, 1982.
Inter-American Court of Human Rights, Velásquez Rodríguez Case,
Judgment on Preliminary Objections, June 26, 1987, paragraph 91.
In this regard, the State of Mexico explains as follows:
is also alleged that there were several contradictions regarding the
briefcase owned by Orlando Muñoz Guzmán and which was claimed by the
family members. This was indeed true and was one of the reasons for
the reopening of investigation SC/139/93/V, filed under number
SC/003/98-E. That investigation determined that the briefcase did
exist and had been misplaced. However, a document was prepared to
certify that the briefcase did not exist in the full knowledge that a
false statement was being made, and this was the reason why First
Infantry Captain Víctor Gallegos Bernardino and a lieutenant from the
same branch, Filiberto Ortiz Ibáñez, were charged on suspicion of
having forged documents, as provided for in Articles 243 and 244,
section VII, of the Federal Criminal Code.
from the State, dated November 19, 1999, p. 5.
The Inter-American Court has provided in this regard as follows:
certain exceptions to the rule of non-exhaustion of domestic remedies
are invoked, such as the ineffectiveness of such remedies or the lack
of due process of law, not only is it contended that the victim is
under no obligation to pursue such remedies, but, indirectly, the
State in question is also charged with a new violation of the
obligations assumed under the Convention.
Thus, the question of domestic remedies is closely tied to the
merits of the case.
Court of Human Rights, Velásquez Rodríguez Case, Judgments on
Preliminary Objections cited above, paragraph 91.