4. Right to due process and to
The Commission will now examine the question of whether the
Government of Guatemala violated in this case Articles 8 and 25 of the
Convention. Articles 8
and 25 of the Convention recognize the right of everyone to recourse,
the right to institute judicial proceedings and to be heard in them,
and the right to a ruling by the competent judicial authority. Article
25(1) of the Convention provides that:
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 …
8(1) of the Convention provides that every person has the right to a
hearing, with due guarantees” and within a reasonable time, by a
competent, independent and impartial tribunal, for the determination
of his rights and obligations of a civil, labor, fiscal, or any other
nature. Article 25(2) provides that Governments should ensure that any
person claiming a remedy shall have his rights determined by the
In the present case, the Commission must deal with the question
of the application of Articles 8 and 25 in two aspects. The Commission
considers the application of both Articles with respect to the labor
demands made by the workers of Finca “La Exacta” and with
respect to the claim before the court of law arising from the acts of
violence committed on August 24, 1994.
of justice with respect to the labor claims of the workers on Finca
The Commission concludes that the Government of Guatemala
violated Articles 8 and 25 of the Convention with respect to the labor
claims brought by the workers on Finca “La Exacta” before
the Guatemalan courts. These violations are in respect both of the
claims made in the initial petition of the workers to the Guatemalan
courts, which initiates a proceeding arising from the worker dispute,
and of the claims arising from the dismissal of workers following the
submission of the petition arising from the worker dispute.
As mentioned before, the organized workers on Finca “La
Exacta” filed a petition to institute a proceeding in connection
with the worker dispute on February 18, 1994, to present their claims
related to their working conditions to the Guatemalan courts.
In accordance with the Labor Code of Guatemala, this
petition may be submitted when a dispute that may lead to a strike
arises at a workplace.
According to the Labor Code of Guatemala, once a petition
of this type if submitted, the competent judge for the case is
required to convene a conciliation tribunal within 12 hours.
The resulting conciliation procedure may not last more
than 15 days.
If no agreement is reached, the workers may request the
court’s permission to begin a strike.
In the present case, the courts never ruled on the petition
presented by the organized workers of Finca
“La Exacta”. After initially admitting the case to begin the
proceeding, the Second Labor Court took no measures whatsoever to move
it forward until several months later. On May 12, 1994 the Second
Labor Court notified the workers that
the case had been transferred to the Sixth Labor and Social
Welfare Court of Guatemala
Although when the workers occupied Finca
“La Exacta”, several months had already passed since the
filing of the petition, no additional measures had been taken in the
case. Today, more than two years later, the Guatemalan labor courts
have still not processed the claims brought by the workers in their
filing of February 18, 1994, since the proceeding provided for by law
for a collective labor dispute has not been completed.
Consequently, the organized workers who sought to obtain access
to the courts for the determination of their rights and obligations as
workers vis-à-vis the owners and administrators of Finca
“La Exacta” were denied the possibility of a hearing within a
reasonable time period, in violation of Article 8 of the Convention.
The Guatemalan labor courts did not provide a forum in which the
workers’ claims could be heard, with a view to a settlement, through
mutual collaboration with the owners and administrators of the estate
or through a legal strike. The opportunity to be heard was not given
to the workers within the time limits provided for in Guatemalan law
or within any other reasonable time period.
Nor did the courts grant a hearing or resolve the case arising
from the dismissal, in early March 1994, of the workers who had formed
a labor association on Finca “La
Exacta” and who had joined in submitting the petition to
institute proceedings in connection with the collective labor dispute.
The actions of the owners of Finca “La Exacta” violated the ruling of the Second Labor Court
when it officially allowed the petition to stand.
In that ruling, and in accordance with Guatemalan law, the
Court prohibited both parties from taking reprisals against each
other. The ruling specifically provided that any termination of
contract must be authorized by the court. As indicated above, the
dismissed workers immediately instituted proceedings for their
reinstatement before the Second Labor Court.
Despite the fact that the owners of Finca
“La Exacta” had not complied with the orders of the Court
itself, the Second Labor Court did not take appropriate measures with
respect to the workers’ claims.
More than two years after the filing of the applications for
reinstatement, the Guatemalan Labor Courts have not succeeded in
reinstating the workers. According
to Guatemalan law and pursuant to the orders of the Second Court, the
owners of Finca “La Exacta”
were obliged to immediately repair any damage that they might have
caused as a result of the reprisals taken against those who
participated in the labor dispute.
The Commission therefore concludes that the dismissed workers
were not given an opportunity to be heard nor were they given access
to a prompt and effective remedy against the violations of the law
that adversely affected their right to work and their right to freedom
of association, rights recognized both in the Guatemalan Constitution
and in the American Convention.
of access to justice constitutes a violation of Articles 8 and 25(1)
of the Convention.
The Commission’s conclusion with regard to the lack of
judicial protection for the labor claims of the workers of Finca
“La Exacta” is supported by the fact that the norm in
Guatemala is for labor courts to be remiss in the fulfillment of their
According to information transmitted to the Commission in
an amicus curiae document,
the Sixth Labor Court to which competence was transferred in the
matter of the procedure arising from the labor dispute in this case
settled only one case between March 1994 and March 1995, which is the
most relevant period for this case.
Commission has indicated above that the labor courts of Guatemala are
not in a position to provide judicial protection in labor matters.
also confirmed that the Guatemalan courts do not attend in a timely or
effective manner to labor issues and issues of freedom of association.
The Guatemalan authorities have also admitted that this case is
part of a general tendency for the Guatemalan courts to fail to
provide protection in labor-related matters.
The Attorney General of Guatemala, Acisclo Valladares Molina,
declared, shortly after the incident of August 24, 1994 that the case
was part of a series of cases that “should be resolved judicially
within a short period, [but that] they were dragging on indefinitely
in the labor courts”.
of justice with respect to the violations committed on August 24, 1994
The Commission also concludes that the provisions of Articles 8
and 25 of the Convention were violated with respect to the attempts to
secure justice for the violations of rights committed on August 24,
1994. As was stated in the Commission’s examination of the
admissibility of the case, international observers have indicated that
the processing of the case has been unjustifiably slow and inadequate.
More than two years after the events of August 24, 1994 no
charges have been brought against any suspect and the case is still in
the preliminary stage. The
Commission’s conclusion that the petitioners are excused from the
requirement for the exhaustion of domestic remedies, based on these
and other factors, also points to the conclusion that Articles 8 and
25 have been violated.
The Commission also notes that the investigation carried out in
this case has been inadequate, which clearly shows the lack of access
to an effective legal remedy. Moreover,
as was also indicated in the section on admissibility, various
authorities of the Guatemalan Government have stated that they were
not prepared to fully investigate the incident and to prosecute those
The competent court in the case, the Second Court of First
Instance of Coatepeque, and the Public Prosecutor’s Office have been
guilty of unwarranted delay in questioning key witnesses and have
failed to fully and effectively interview the witnesses.
The police officers called as witnesses have not always
appeared when summoned to collaborate in the investigation.
The Montaña Plan lists the names of certain police
officers responsible for the operation of August 24, 1994.
Nevertheless, now more than a year after the incident, the
courts and the Public Prosecutor’s Office have received the
statement of the first of these officers.
On October 11, 1995 14 months after the police raid on Finca “La Exacta”, the Second Court of First Instance of
Coatepeque took a statement from the first police officer. Francisco Filiberto Duarte Gómez, the agent responsible for
preparing the plan of operations, testified before the court on that
originally found sufficient grounds to detain Mr. Duarte based on his
statement, but released him in December 1995.
According to uncontested information provided by the
petitioners, the police officer mentioned in the Montaña Plan
as the one responsible for the operation of August 24, 1994 was
recently summoned to testify on November 11, 1995.
This officer, Reyes Gumercindo López Martínez, refused to
appear when first summoned. He recently testified in January 1996.
In its report of January 23, 1996 the Government informed the
Commission that on November 11, 1995 the Second Court of First
Instance of Coatepeque had ordered that a statement be taken from
Basilio Hernández Guzmán. Mr. Hernández is a police commissioner who was named as a
suspect in the case. However, he recently gave a statement in December
When his testimony was finally taken, the witness offered
an alibi indicating that he had not been present during the violent
incidents of August 24, 1994. The
judge who heard the testimony did not ask the witness any questions
about his alibi or about any other matter.
In its report of January 23, 1996 the Government also notes
that the Office of the Public Prosecutor heard testimony from various
other important witnesses in November and December 1995 more than two
years after the events that are the object of this petition. The
Government provided the testimony of each of the witnesses mentioned
in its report. All of these witnesses declared that they had not been
present in the place where the acts took place, either because they
had already left the area of Finca
“La Exacta” altogether or because they provided only support
service and therefore were not close to the area where the clashes
took place. The Public Prosecutor’s Office did not question any of
these witnesses after their testimony and therefore did not obtain
from the witnesses any reply to crucial questions concerning the alibi
of each of the witnesses and any information which they might have
about the identity of other persons who participated in the violent
acts that took place on August 24, 1994.
The helicopter pilot who was hired by the owners of Finca
“La Exacta” to participate in the events of August 24, 1994
was recently questioned in January 1996.
Particular importance should have been attached to this
interview, not only because the helicopter had participated in the
raid but also because Diego Orozco was taken in one of the helicopters
present on August 24, 1994 and was alleged to have been thrown out of
The unwarranted delay in gathering evidence and taking the
statements of these important witnesses evidently impeded the process
of ascertaining the truth and ensuring that justice was done in the
internal investigation of the events of August 24, 1994.
As time passes, the evidence of witnesses becomes less reliable
and it becomes more difficult to find new evidence. The fact that
meaningful interviews were not conducted with the witnesses even at
this late stage has exacerbated the problem.
The court and the Public Prosecutor’s Office have failed
completely to fulfill their obligation to take the statements of other
key witnesses and to follow up the information obtained from the
witnesses that gave statements. For example, the record does not show
that statements were taken from the three police officers named as
assistants to Reyes Gumercindo López Martínez in the operation of
August 24, 1994.
The pilot whose statement was taken in January 1996 said that
one of the owners of Finca “La
Exacta”, Alvaro Blanco, traveled in the helicopter on the day of
Mr. Blanco, however, never gave a statement, even though
he should have important information on key aspects of the operation,
such as the sequence of the events that occurred on August 24, 1994,
responsibility for the acts and the aims and intentions of the police
units on the day in question. He should also be questioned about the
fate of Diego Orozco, since he was present in one of the helicopters
that were on the scene of the events.
The police officer who prepared the plan of operations,
Francisco Filiberto Duarte Gómez, provided the name of the owner of a
neighboring estate to Finca “La
Exacta”, who supplied another helicopter for use on August 24,
1994. There is no evidence that this person has made a statement,
despite the importance of the information that he might have about the
responsibility for the raid and possibly about the fate that befell
Finally, the Commission concludes that Government officials
and/or entities clearly sought to obstruct the investigation of the
events of August 24, 1994. As
already noted, the preparation of a modified version of the Montaña
Plan to submit to the Office of the Public Prosecutor can be
interpreted only as an attempt to conceal prejudicial evidence and,
therefore, to impede the effective investigation of the case.
The Government participants tasked with the criminal
investigations and necessary judicial proceedings to ascertain the
truth and punish those responsible in this case failed to discharge
their obligations in a timely manner, which prevented justice from
being done. Other Government participants, the police units and
individual police officers who participated in the events of August
24, 1994 impeded the investigation or collaborated at a late stage. In
this case, therefore, access to justice for the victims of the
incidents of August 24, 1994 and their families was delayed and
Article 1(1) Obligation to respect rights
The violation of rights with respect to the court orders proves
that the State of Guatemala has failed to discharge the obligation
provided for in Article 1(1) of the American Convention 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”.
The first obligation of any State party to the American
Convention is to respect the rights and freedoms contained therein.
a State organ, official or public entity violates one of those rights,
this constitutes a failure of the duty to respect the rights and
freedoms set forth in the Convention…….. A State is responsible
for the acts of its agents undertaken in their official capacity and
for their omissions, even when those agents act outside the sphere of
their authority or violate internal law.
As already indicated, in this
case the Guatemalan police forces, acting in their official capacity,
took part in the acts committed on August 24, 1994 which violated the
right to life, the right to humane treatment and the right to freedom
of association, protected by Articles 4, 5, 16 and 19 of the
Guatemalan agents also prevented the application of justice, in
violation of Articles 8 and 25 of the Convention.
The State of Guatemala has therefore violated Article 1(1) of
the Convention as a result of the violations of the Convention
committed by its agents, and bears responsibility for those
The second obligation of the State is to “guarantee” the
free and full exercise of the rights recognized by the Convention.
The Commission wishes to reiterate that this obligation:
the duty of States Parties to organize the governmental apparatus and,
in general, all the structures through which public power is
exercised, so that they are capable of juridically ensuring the free
and full enjoyment of human rights. As a consequence of this
obligation, the States must prevent, investigate and punish any
violation of the rights recognized by the Convention and, moreover, if
possible attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation.
Articles 1 and 6 of the Convention against Torture also provide
that States parties shall prevent and punish torture.
The State of Guatemala has not fulfilled its obligation to
prevent, investigate and punish the violations of the rights of the
workers of Finca “La Exacta” and to pay compensation for these violations.
In the first place, the Government did not prevent the acts of
violence that took place on August 24, 1994.
The fact that the labor courts of Guatemala did not rule on the
claims of the workers of Finca
“La Exacta” created a situation in which the workers could not
obtain legal protection for their rights.
As a result of the frustration of the workers faced with this
lack of protection, a tense situation developed between the workers
and the owners and administrators of Finca “La Exacta”.
The Government did not take adequate steps to ensure that the
tense situation did not lead to acts of violence and to the violation
of human rights. On the
contrary, it elaborated a police plan that clearly provided for the
use of force to settle the occupation of Finca
“La Exacta”. No
court of justice or other entity intervened to ensure that the plan
did not lead to the use of excessive force, in violation of the rights
of the workers occupying the estate.
The State also failed to fulfill its obligation to investigate
and punish violations of the rights recognized by the Convention when
the events took place. Nor
did it pay any compensation to the victims of the violations in the
case. The Government
failed to carry forward the judicial proceedings arising from the
incidents of August 24, 1994 with a view to bringing to justice those
who carried out the attack against the workers of Finca “La Exacta”. In
accordance with the Commission’s conclusion stated above, the
procedures and investigations carried out have been inadequate and
No one has been formally accused much less punished.
It cannot be denied that the police force of Guatemala was
responsible for the use of excessive force in this case, even though
certain doubts remain as to the identity of the individual police
officers responsible for preparing the attack and of the agents who
actually fired their weapons. But
no police officer has been punished by the Government.
Nor has the Commission received information that any police
officer has been dismissed.
The Government has also failed in its obligation to guarantee
rights with respect to the acts committed by private individuals in
violation of the rights, enshrined in the Convention, of the workers
organized on Finca “La Exacta”.
The owners and administrators of Finca
“La Exacta” dismissed a large number of workers on the estate
in reprisal for the decision of these workers to organize a union and
to file a labor claim in the courts.
Persons associated with the owners and administrators of Finca
“La Exacta”, together with other private persons, also
collaborated with the police force in preparing and executing the raid
of August 24, 1994. These
actions of private individuals resulted in violations of the right to
freedom of association, the right to life and to humane treatment and
the right of children.
The Guatemalan courts never revoked the firings of the workers
nor has the Government investigated or punished the private
individuals who participated in the planning and execution of the
attack of August 24,1994. The
private individuals whose names appear in the judicial proceedings as
participants in the violations of rights that took place on August 24,
1994 have not even been called upon to declare as witnesses.
The State is therefore responsible for the acts of these
private individuals that violate the rights protected by the
Convention, “because of the lack of due diligence to prevent the
violation or to respond to as required by the Convention.
The State of Guatemala is
responsible for the violation of Article 1(1) inasmuch as it has not
guaranteed the free and full exercise of the rights guaranteed in the
the violations of the Convention that took place are attributable to
the State both for this reason and as a result of the State’s
failure to fulfill its responsibility to respect the rights recognized
in the Convention.
III. DEVELOPMENTS SUBSEQUENT TO THE ISSUANCE
OF REPORT 41/96, PURSUANT TO ARTICLE 50 OF THE AMERICAN CONVENTION
On October 16, 1996, at its 93rd period of sessions,
the Commission adopted report 41/96, in accordance with Article 50 of
the American Convention. In that report, the Commission concluded that
the State of Guatemala was responsible for the violation of the right
to life, recognized in Article 4 of the Convention, with respect to
Efraín Recinos Gómez, Basilio Guzmán Juárez and Diego Orozco; the
right to humane treatment, recognized in Article 5 of the Convention,
with respect to Diego Orozco, the entire group of workers occupying
the estate and their families, who suffered the attack of August 24,
1994 and especially the 11 persons who suffered serious injuries:
Pedro Carreto Loayes, Efraín Guzmán Lucero, Ignacio Carreto Loayes,
Daniel Pérez Guzmán, Marcelino López, José Juárez Quinil, Hugo
René Jiménez López, Luciano Lorenzo Pérez, Felix Orozco Huinil,
Pedro García Guzmán and Genaro López Rodas; the right to freedom of
association, recognized in Article 16 of the Convention, with respect
to the workers of Finca “La
Exacta” who organized a labor association to express their labor
demands to the owners and administrators of Finca
“La Exacta” and to the Guatemalan courts and who suffered
reprisals for this reason; the right of children to special
protection, provided for in Article 19 of the Convention, with respect
to the minors who were present during the raid of 24 August 1994; the
right to a fair trial and to judicial protection, provided for in
Articles 8 and 25 of the Convention, with respect to the organized
workers who sought access to judicial remedies in connection with
their labor demands, and with respect to the victims of events of
August 24, 1994 and their relatives who sought justice in connection
with these events, all of the above in conjunction with Article 1(1)
of the Convention, for having failed to fulfill its obligations under
the abovementioned Article. The Commission concluded also that the
State of Guatemala was responsible for the violation of Articles 1, 2
and 6 of the Convention against Torture, with respect to the torture
suffered by Diego Orozco.
The Commission also recommended that the State of Guatemala: 1)
begin a prompt, impartial and effective investigation of the events of
August 24, 1994 on the basis of which it could prepare an official
report detailing the circumstances of and responsibility for the use
of excessive force on that date; 2) take the necessary steps to
subject the persons responsible for the acts of August 24, 1994 to the
appropriate judicial processes, which should be based on a full and
effective investigation of the case; 3) make reparations for the
consequences of the violations of the rights identified, including the
payment of fair compensation to the victims or their families; and 4)
take the necessary steps to guarantee that violations of the type that
took place in this case do not recur in future.
The Commission also decided to transmit the report to the State
and to grant it a period of two months to implement the
recommendations contained therein.
The Commission transmitted the report to the State of Guatemala
on October 30, 1996 the date on which the time limit of two months
began to run.
On June 6, 1997 in a communication dated December 30, 1996, the
State of Guatemala requested the IACHR to grant an extension for
reporting on the action it had taken to implement the recommendations
contained in report 41/96. On
January 9, 1997 the Commission received the reply of the State in
which it stated:
respect to the first recommendation, that] the Government of Guatemala
has previously reported to the illustrious Commission on the
investigation conducted by the Office of the Public Prosecutor in this
case, which marked the start of the action taken to clarify the
circumstances that led to the events…
respect to the second recommendation, that] independently of the
proceeding followed in the inter-American system for the protection of
human rights, the domestic legal order provides for certain procedures
to be followed when a situation recognized and characterized as a
crime has taken place. In
this regard, the Office of the Public Prosecutor conducted the
appropriate investigation and requested legal extensions from the
court to gather more rational and substantial elements of proof to
determine responsibility, culpability and the direct participation of
those who appear to be involved in the acts that took place on August
respect to the third recommendation, that] it was now not possible] to
pronounce on the matter, since there is a criminal proceeding which,
while [it was] provisionally closed, was nevertheless likely to be
reactivated at any time, depending on whether other elements of proof
and procedural information emerged that might add new elements to the
respect to the fourth recommendation, that] the police operation to
execute the legal eviction orders had been carried out with sufficient
guarantees for those persons who for various reasons had taken their
position. Such operations
provide for negotiation, dissuasion and persuasion of the occupiers
and for the participation and accompaniment of human rights
organizations as guarantors of the actions of the security forces.
The State undertook to add to the information provided to the
Commission, and, to this end, in a communication transmitted to the
IACHR on January 10, 1997 requested an extension of 30 days.
On January 17, the State requested a further extension of 60
days. The Commission
granted an extension of up to 6 March 1997.
124. On March 5, 1997 at its 95th period of sessions, the Commission held a hearing on the case, at which representatives of the State and petitioners participated. The former stated that the provisional closure of the proceeding should not be interpreted as a dismissal of the case since, despite that, the Office of the Public Prosecutor had continued to receive statements from police officers. They stated further that the case was very complex because of the participation of a large number of police officers in the execution of the operation, and that more time and evidence were therefore needed. On that same occasion, the State indicated that, for the time being, it could not reply to the question of whether or not it accepted the proposal for a friendly settlement but that it would do so within the next 45 days.  Based on this reply, and after hearing the petitioners, the Commission decided to await the position of the State for the agreed time period.
On April 21, 1997 the Government of Guatemala informed the
Commission that it agreed to initiate a proceeding for a friendly
settlement based on respect for the human rights provided for in the
American Convention. On
August 15 of the same year, the IACHR received a new communication
from the State in which it reported on the proceeding agreed upon to
implement the friendly settlement procedure.
On January 12, 1998 the IACHR received another communication
from the State informing it that one of the difficulties in the way of
the friendly settlement procedure lay in the petitioners’ claims,
which exceeded reasonable limits but that, nevertheless, the
Government had the highest interest in going forward with the
proceeding proposed by the IACHR.
On February 24, 1998 representatives of the State held a
meeting with Claudio Grossman, a member of the Commission, in which it
was agreed that, prior to a Government proposal for a settlement, the
petitioners should accredit the representatives of the victims.
On June 24, 1998, the petitioners transmitted to the IACHR the
On February 23, 1999 the petitioners contacted the IACHR and
observed that the friendly settlement proceeding was not yielding
results and that they continued to await a counter offer from the
State. At the same time,
they suggested another approach in the negotiations.
On February 25, 1999 the Commission communicated to the State
the suggestions of the petitioners.
On February 18, 2000 the petitioners submitted to the IACHR a
list of the affected persons who indicated their wish for CALDH to
conduct the negotiation aimed at reaching a friendly settlement of the
matter. On April 12 of
the same year, the petitioners communicated to the IACHR that a new
meeting had been held with the Government of Guatemala but that no
agreement had been reached.
On August 9, 2000 the Government of Guatemala, represented by
the President of the Republic, Dr. Alfonso Portillo, recognized:
institutional responsibility of the State arising from its failure to
fulfill the obligation imposed by Article 1 (1) of the American
Convention to respect and guarantee the rights enshrined in the
Convention…with respect to the following persons or cases:
Guatemalan Government accepted that the events that gave rise to the
filing of the claims to the Commission did indeed take place …undertook
to begin negotiations on those cases and pledged to initiate a process
of friendly settlement that would provide compensation and/or
assistance to the families of the victims identified or, where
possible, to the victims directly.
The amount of the compensation which the Government of
Guatemala undertook to pay to the persons concerned would be
determined at a later date in a manner to be agreed upon with the
victims or their family members or, failing that, on the basis of the
principles and criteria established in the inter-American system for
the protection of human rights. It
[also] undertook to follow up and promote the investigation of the
acts…to institute civil, criminal and administrative proceedings
against those persons who, in fulfillment of State functions or acting
with the authority of the Government, are presumed to have
participated in the alleged violation…[Lastly], the State of
Guatemala, through COPREDEH, undertook to report every six months to
the Inter-American Commission on Human Rights on the fulfillment of
the obligations assumed by the State pursuant to this declaration.
The Commission takes note of the fact that, following the
issuance of report 41/96 on October 16, 1996 in accordance with
Article 50 of the Convention, the State, on April 21, 1997 declared
its willingness to reach a friendly settlement with the petitioners
under the auspices of the IACHR, although it also observes that this
process was delayed for more than five years, mainly, though not
exclusively, for reasons attributable to the State.
On the other hand, the IACHR recognizes and highly appreciates
the considerable progress made by the State of Guatemala in assuming
institutional responsibility for violations of human rights in this
case. However, the
Commission notes that, from the initial response to report 41/96 up to
recognition of institutional responsibility, the State has taken no
specific and effective measures to implement the recommendations made
by the Commission. The
IACHR has further noted that the State is not effectively honoring the
commitment that it gave in this case in the declaration of August 9,
2000. The IACHR must
therefore continue with the proceeding, in accordance with Article 51
of the Convention.
In view of the factual and legal considerations examined above,
the Commission wishes to reiterate its conclusions that the Guatemalan
State, in light of the information and observations contained above,
has failed to fulfill the obligations which it has under Article 1(1)
of the Convention and has violated, in conjunction with Article 1(1)
of the Convention:
The right to life, recognized
in Article 4 of the Convention, with respect to Efraín Recinos
Gómez, Basilio Guzmán Juárez and Diego Orozco;
The right to humane
treatment, recognized in Article 5 of the Convention, with respect to
Diego Orozco, the entire group of workers who occupied the estate and
their families, who suffered the attack of August 24, 1994, and, in
particular, the 11 persons who suffered serious injuries: Pedro
Carreto Loayes, Efraín Guzmán Lucero, Ignacio Carreto Loayes, Daniel
Pérez Guzmán, Marcelino López, José Juárez Quinil, Hugo René
Jiménez López, Luciano Lorenzo Pérez, Felix Orozco Huinil, Pedro
García Guzmán, and Genaro López Rodas;
The right to freedom of
association, recognized in Article 16 of the Convention, with respect
to the workers on Finca “La Exacta” who organized themselves into a labor union to
convey their labor demands to the owners and administrators of Finca
“La Exacta” and to the Guatemalan courts and who suffered
reprisals for this reason;
The right of children to
special protection, recognized in Article 19 of the Convention, with
respect to the minors who were present during the raid of August 24,
The right to a fair trial and
to judicial protection recognized in Articles 8 and 25 of the
Convention, with respect to the organized workers who sought access to
legal remedies in connection with their labor demands and with respect
to the victims of the events of August 24, 1994 and their relatives
who sought justice in connection with these events.
The State of Guatemala has also violated Articles 1, 2 and 6 of
the Convention against Torture in connection with the torture suffered
by Diego Orozco.
Based on the analysis and conclusions of this report,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS REITERATES THE FOLLOWING
RECOMMENDATIONS TO THE STATE OF GUATEMALA:
That it begin a prompt,
impartial and effective investigation of the events that took place on
August 24, 1994 to be able to detail, in an official report, the
circumstances of and responsibility for the use of excessive force on
That it take the necessary
steps to subject the persons responsible for the acts of August 24,
1994 to the appropriate judicial proceedings, which should be based on
a full and effective investigation of the case.
That it make reparations for
the consequences of the violations of the rights listed, including the
payment of fair compensation to the victims or their families.
That it take the necessary measures to ensure that violations
of the type that took place in this case do not recur in future.
On March 14, 2002, the Commission transmitted Report No. 30/02
– the text of which appears above – to the Guatemalan State and
the petitioners, in compliance with the provisions of Article 51.2 of
the American Convention, and it granted the State a period of 30 days
in which to submit information on its compliance therewith. On April
16, 2002, the Guatemalan State sent a note reporting that the Public
Prosecution Service had requested that the investigation be reopened,
and that this request had been granted by the investigation’s
controlling judge on November 2, 2001; that the same judge had
summoned Messrs. Pedro Castro Acabal and Luis Fernando Tobar Mejía,
together with other police officers involved in the operation at the
La Exacta estate, but that the court has not yet served the summonses
or heard from the defendants; that on November 27, 2001, the Public
Prosecution Service requested the arrest of Harry Omar Hernández, who
had been accused of having fired the shots that hit Diego Orozco, and
that this arrest was ordered by the judge on November 29, 2001, and is
still pending execution. With respect to reparations, the State
reports that “it is about to hold talks with the petitioners in
order to agree on how reparations should be made to the victims in the
case at hand.”
The Inter-American Commission appreciates the information
furnished by the Guatemalan State; however, it notes that the
information on the status of the judicial investigations describes
matters prior to the issuing of Report 30/02. The Commission also
notes that the State has not complied with the other terms of the
recommendations set forth in that report, as it should have done at
this stage in the proceedings. Consequently, in the IACHR’s opinion,
it would not be appropriate to offer additional comments further to
those given in the preceding paragraphs of this report.
137. In light
of the above comments, and pursuant to the terms of Article 51.3 of
the American Convention and Article 48 of its Rules of Procedure, the
Commission decides to reiterate the conclusions and recommendations
set forth above in Chapters VI and VII, respectively; to publish this
report; and to include it in its Annual Report to the General Assembly
of the OAS. In accordance with the terms of Article 46 of its Rules of
Procedure, the Commission will continue to assess the measures adopted
by the Guatemalan State in connection with the above recommendations
until such time as it has complied with them in full.
and signed at the headquarters of
the Inter-American Commission on Human Rights, in the city of
Washington, D.C., on the 21st day of October 2002. (Signed):
Juan Méndez, President; José Zalaquett, Second Vice-President;
Commissioners Robert K. Goldman, Julio Prado Vallejo, Clare K.
Roberts, and Susana Villarán.
The following were the principal claims of the workers, in relation
to violations of the law:
Most workers were paid 6 quetzales per day, instead of the
minimum wage of 10 quetzales provided for by law.
The year-end bonus provided
for by law was not paid.
The “bono catorce”
that should be paid in July in accordance with the law was not paid.
Year-end vacations were not
Workers were neither
granted nor paid for public holidays.
Workers had no access to
the benefits and allowances provided by the Guatemalan Social
in the set of petitions submitted together with the petition to
institute a labor dispute proceeding, the workers also made
additional claims. The Commission notes that the Ministry of Labor
recognized, after the incidents of August 24, 1994 that the workers
were not being paid the minimum wage. See: “Minister Morfín:
Minimum wage not being paid in Hacienda San Juan el Horizonte”,
August 30, 1994, La Hora.
See: Labor Code
of Guatemala, Article 377.
Labor and Social Welfare Court of First Instance of Coatepeque, May
of the Second Labor and Social Welfare Court of First Instance of
Coatepeque, Quetzaltenango, February 18, 1994.
for reinstatement, March 3, 1994.
of the Second Labor and Welfare Court of First Instance of
Coatepeque, Quetzaltenango, February 18, 1994; Labor Code of
Guatemala, Article 379.
Constitution of the Republic of Guatemala, Articles 34,101.
See: case of
Velásquez Rodríguez, Judgment of July 29, 1988, paragraph 126 (a
pattern of proven violations supports the conclusion that a
violation has taken place in a specific case).
See: Statement amicus
curiae of the International Labor Rights Fund, project between
the United States and Guatemala in labor education, submitted to the
Commission on September 25, 1995.
report, p. 91.
report of the Director of MINUGUA, paragraph 179.
Labor Court has responsibility in eviction”, La República, August
See: case of
Velásquez Rodríguez, Preliminary Objections, Judgment of June 26,
1987, paragraph 91.
of Francisco Filiberto Duarte Gómez to the Second Court of First
Instance of Coatepeque, Quetzaltenango, October 11, 1995.
of Basilio Hernández Guzmán to the Fifth Criminal Court of First
Instance, December 10, 1995.
of Guillermo Enrique Betancourt Ruiz and Oscar Hugo Leonel López to
the Office of the Public Prosecutor, November 9, 1995; statement of
Darwin de León Palencia to the Office of the Public Prosecutor,
November 14, 1995; statements of Rolando Ordóñez Corado, Hugo
Leonel Gómez Díaz and Dimas Antonio Hernández Gómez to the
Office of the Public Prosecutor, December 6, 1995.
by Carlos Alberto Enríquez Santizo to the Office of the Public
Prosecutor of Coatepeque, January 17, 1996.
Velásquez Rodrígues, Judgment of July 29, 1988, paragraphs 169,
Velásquez Rodríguez, Judgment of July 29, 1988, paragraph 166.
Velásquez Rodríguez, Judgment of July 29, 1998, paragraph 172.
of the State appears in the minutes of hearing Nº 34, 93th session
of the Commission.
The document in
which the Guatemalan State acknowledges the facts and its
institutional responsibility was also signed by the then President
and Executive Secretary of IACHR, Dean Claudio Grossman and
Ambassador Jorge Taiana, respectively.