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