Petitioner Dianna Ortiz, a United States citizen and Catholic nun
of the Ursuline order, alleges that she was kidnapped, brought to a
clandestine detention center, and tortured in Guatemala by agents of the
Guatemalan Government in November of 1989. She alleges violations of various articles of the American
Convention on Human Rights (the "Convention").
Based on the information submitted and its investigation and
analysis in the case, the Inter-American Commission on Human Rights (the
"Commission") finds that the Guatemalan Government has
violated Articles 1, 5, 7, 8, 11, 12, 16 and 25 of the Convention.
The allegations of fact in this case are contained in the
statements of Sister Ortiz. The
alleged facts are described below followed by a brief description of the
processing of Sister Ortiz's case before the Commission.
The Commission's analysis of the admissibility and merits of the
case are found in Section II.
The Allegations of Fact Contained in Dianna Ortiz's Statements
On April 18, 1990, the Commission opened case No. 10.526, based
upon the statements of petitioner Dianna Ortiz alleging that she was
abducted and tortured by agents of the Guatemalan Government.
According to Sister Ortiz's statements, she first went to
Guatemala in September of 1987 to join several other nuns who had
already been in Guatemala for approximately one year, working with the
indigenous population in San Miguel Acatan and other small villages
throughout the department of Huehuetenango.
In late 1988, the Bishop of Huehuetenango received an anonymous
typewritten document accusing Sister Ortiz and the other nuns in San
Miguel of planning to meet with "subversives."
In early 1989, Sister Ortiz began to receive anonymous written
threats directly. She
received three threatening letters between January and March of 1989.
One of the letters was slipped under her door, one was sent
through the mail, and one was left under the windshield wiper of her
vehicle. Two of the letters
were addressed to "Madre Diana." The letters warned that she was in danger and should leave
In July of 1989, Sister Ortiz went to Guatemala City to study
Spanish. During the month
that Sister Ortiz was attending language school in Guatemala, there was
a teacher's strike in Guatemala. On
one occasion, as Sister Ortiz walked to school near the main plaza where
demonstrations were being held in front of the Government Palace, she
saw people that she knew and stopped to talk with them. Several days later, she was accosted by an unknown man on the
street near the home where she was staying.
The man said, "We know who you are. You're working in Huehuetenango." The man told Sister Ortiz to leave the country.
After this occurrence, Sister Ortiz left Guatemala for an
unscheduled vacation on July 15, 1989.
She returned to Guatemala on September 18, 1989.
On October 13, 1989, while in Guatemala City, Sister Ortiz
received another death threat in the form of a letter dropped in the
mail slot of the house where she was staying.
It consisted of words that had been pasted together from letters
cut from magazines and newspapers.
The letter said, "Eliminate Diana.
Assassinated. Decapitated. Leave the country."
After receiving the letter, Sister Ortiz returned to San Miguel.
On October 17, 1989, Sister Ortiz received another letter in San
Miguel, which said, "It is dangerous for you to stay here, the army
knows you are here. Leave
the country." Sister
Ortiz decided to seek refuge at the Posada de Belen, a religious center
According to Sister Ortiz's statements, she was kidnapped from
the gardens of the Posada de Belen on November 2, 1989.
Another threatening letter was sent to the Posada de Belen before
she arrived, but she never received that letter.
Sister Ortiz's narrative of the facts indicates that on November
2, she asked a caretaker to unlock the door to the enclosed gardens.
She was in the gardens alone for about ten minutes when she felt
a man put his hand on her shoulder.
The man said, "Hello my love," and Sister Ortiz
recognized the voice as belonging to the man who had accosted her on the
street four months previously. Sister
Ortiz tried to back away from him but he grabbed her arm.
Sister Ortiz realized that there were two men in the gardens. The first man, whom she recognized and who seemed to be in
charge, insisted that Sister Ortiz accompany the two men. There was a struggle, and then the first man reached inside
his jacket and showed her a gun.
The two men forced Sister Ortiz to walk with them to the back of
the gardens at the Posada de Belen where there was an opening in the
wall surrounding the gardens. The
two men and Sister Ortiz walked out of the gardens and along a dry river
bed until they came to the street leading out of Antigua.
two men then forced Sister Ortiz to climb aboard a public bus.
The first man showed Sister Ortiz a grenade in the pocket of his
jacket and warned that if she tried to escape, innocent people would
die. Sister Ortiz and the two men exited the bus near a sign for
Mixco, a town outside of Guatemala City.
to Sister Ortiz's statements, they walked down a dirt road until they
came to a white National Police patrol car.
The first man went ahead and talked with the driver, a uniformed
National Policeman. Sister
Ortiz was then blindfolded and placed in the backseat of the patrol car.
The two men also got into the car.
The Policemen said to the men, "I see that your trip was
Ortiz was driven in the police car and was then taken out of the car and
moved into a warehouse-like building.
Sister Ortiz could hear a woman's screams and the moans of a man.
Sister Ortiz was ushered into a room where she was seated on a
chair. The policemen and
the two men who had kidnapped her left the room.
After hours had passed, the second man who had come to the
gardens to kidnap her entered the room and blindfolded her again.
Two more men entered the room, and Sister Ortiz recognized the
voices as belonging to the policeman and the first man who had taken her
from the gardens. According
to Sister Ortiz's statements, the men removed some of her clothes and
started to touch her body.
the man that had first accosted her in Guatemala said, "We will get
to that later, we have to take care of business first."
He said that they were going to play a game.
If she gave an answer that they liked, he said that they would
let her smoke; if they did not like the answer, they would burn her with
men asked Sister Ortiz her name, where she lived, what work she was
involved in, and if she knew any subversives.
With every answer, regardless of what she said, they burned her
with a cigarette. They
asked the same questions again and again and burned her again and again.
some point, they stopped the interrogation and removed Sister Ortiz's
blindfold. They showed her some pictures of herself taken in various
parts of the country. The
men also showed Sister Ortiz pictures of indigenous people.
In one picture, a man was holding a gun and, in another one, a
woman with long black hair had a gun.
They insisted that Sister Ortiz was the indigenous woman in the
picture and said that the indigenous people were subversives.
of the men then blindfolded Sister Ortiz again, and somebody hit her in
the face so hard that she fell to the floor.
Two of them pulled her up to a sitting position and took off the
rest of her clothes. According
to Sister Ortiz's statements, the men began to abuse Sister Ortiz
sexually and raped her repeatedly.
Sister Ortiz was told that they would stop if she gave them the
names of the people in the photographs and the names of her contacts.
Sister Ortiz passed out.
to Sister Ortiz's statements, at one point she regained consciousness
and realized that her wrists had been tied to something overhead.
She felt that she was in a courtyard of some type.
The uniformed policeman asked again about the people in the
photographs and raped her. Then
Sister Ortiz heard people moving a heavy block on the ground.
She was lowered into a pit which was filled with bodies and rats.
Sister Ortiz passed out again.
She woke up on the ground, and the men were again abusing her
Sister Ortiz was taken back into the room and questioned again.
Her captors held her down on the ground and began to rape her
again. Then somebody said,
"Alejandro, come and have some fun."
A man who had just entered answered with an expletive in English.
Then he switched to Spanish and told the men that Sister Ortiz
was an American and that they should leave her alone.
He announced that her story was already being covered in the
news. He told the men to
leave the room and helped Sister Ortiz to put on her clothes.
took Sister Ortiz out of the building and drove her out of an attached
garage. As they left, he
repeatedly apologized and said that it had all been a mistake.
He said that they had confused her with somebody else. He also said that they had tried to prevent this with the
"Alejandro" continued to speak in Spanish, he understood
Sister Ortiz when she spoke in English, and he spoke Spanish with a
Northamerican accent. In
Sister Ortiz's statements, she indicates that she believes that this man
was from the United States.
the car in which Sister Ortiz and "Alejandro" were driving
stopped for traffic, Sister Ortiz saw signs indicating that she was in
zone 5 of Guatemala City. She jumped out of the car and fled.
ran until a woman offered to take her into her home.
She stayed there for several hours and then found her way to
Hayter Travel Agency in Zone 1 of the city.
She contacted members of her religious community who came to
retrieve her. She left
Guatemala for the United States within 48 hours of her escape.
Processing before the Commission
April 18, 1990, in conformity with Article 34 of the Commission's
Regulations, the Commission sent the Government of Guatemala the
pertinent parts of a statement signed by Sister Ortiz dated January 3,
1990 and several press releases which had been sent to the Commission.
Since that time, the Commission has received numerous
communications in this case from the attorneys for the Government and
the petitioner, Sister Dianna Ortiz.
In addition, a hearing was held before the Commission on February
communications of the Government were accompanied by Government reports,
newspaper clippings, press releases and other documents which provided
updates relating to the investigation and processing of Sister Ortiz's
case before the Guatemalan courts.
The Government argued, beginning with its response of April 30,
1990, that domestic resources had not been exhausted in the case, as
required by Article 47(a) of the Convention.
The Government also argued that the criminal acts of which Sister
Ortiz complained had not been proven, much less the identity of persons
responsible for those acts. The Government additionally asserted that Sister Ortiz had
frustrated the domestic proceedings by failing to cooperate with the
investigation and processing of the case in Guatemala.
petitioner's attorneys submitted a significant volume of documentary
evidence, including affidavits, records from the courts of Guatemala,
newspaper clippings, etc..., in support of the petitioner's accusations.
The petitioner's attorneys also argued that an exception to the
requirement of exhaustion of domestic remedies applied in this case.
Additionally, they provided updates about the domestic
proceedings and asserted that Sister Ortiz had offered assistance to the
October 23, 1995, the Commission sent a letter to the Government of
Guatemala requesting that the Government provide to the Commission
copies of witness testimony, police reports and other information
related to the domestic case. The
Government responded on November 27, 1995, indicating that the
information had been requested from the Public Ministry and that the
agency would make a decision on the Commission's request.
Commission's analysis of this case begins with its determination that
the case is admissible. The
discussion of the question of admissibility is followed by the
Commission's conclusions on the merits of the case.
complaint fulfills the formal admissibility requirements contained in
the American Convention on Human Rights and the Commission's
Regulations. In accordance
with Article 47(b) of the Convention, the Commission is competent to
examine this case as it alleges facts tending to establish a violation
of rights and freedoms protected by the American Convention on Human
Rights. In accordance with
the requirements of Convention Articles 46(c) and 47(d) respectively,
the subject of the petition is not pending settlement in another
international proceeding, nor does it duplicate a petition previously
examined by the Commission.
accordance with Article 48(1)(f) of the Convention, the Commission, in a
letter to the parties dated February 7, 1995, offered to place itself at
their disposal for the purposes of arriving at a friendly settlement.
On February 17, 1995, Sister Ortiz's attorney indicated that
Sister Ortiz was willing to participate in a friendly settlement
discussion. On March 27, 1995, the Government of Guatemala communicated
to the Commission its decision not to engage in friendly settlement
discussions in this case.
to Article 46(2) of the American Convention, the requirement of
exhaustion of domestic remedies found in Article 46(1)(a) is not
applicable in this case. Article
46(1)(a) specifies that admission of a petition requires that
"remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international
pursuant to Article 46(2)(b), exhaustion is not required where "the
party alleging violations of his rights has been denied access to the
remedies under domestic law or has been prevented from exhausting
them." Pursuant to
Article 46(2)(c), the requirement of exhaustion does not apply where
"there has been unwarranted delay in rendering a final
provisions of Article 46(2)(b) and (c) excuse exhaustion in the instant
case, since Sister Ortiz has insistently pursued remediation through
domestic mechanisms and has not achieved any results nor any decision in
her domestic case, although six years have passed since the appropriate
domestic judicial proceeding was initiated.
November 2, 1989, Darleen Chmielewski informed the National Police in
Antigua, Guatemala that Sister Ortiz had disappeared.
On November 4, 1989, a criminal proceeding was initiated before
the Justice of the Peace of the Department of Sacatepéquez.
Six years later, it is clear that there has been an unjustifiable
and unreasonable delay in the resolution of the case.
Sister Ortiz's efforts to pursue the case through judicial
channels, as well as through diplomatic and political channels, have not
achieved success. The case
remains in its initial investigative period ("fase sumarial"). Neither the courts nor the prosecution in Guatemala have ever
initiated proceedings against any suspect or ordered the arrest of any
individual in relation to the case; no one has ever been tried in
connection with this case.
the fact that Sister Ortiz left Guatemala and fled to the United States
soon after she was released by her captors, she has made numerous
efforts to advance the domestic case and to provide information and
assistance to the Guatemalan Government in the investigation of the
case. Sister Ortiz's
efforts have consistently met with resistance from the Government and
have often been countered with criticisms of Sister Ortiz by Government
officials. As a result,
Sister Ortiz has been denied effective access to the appropriate
domestic remedies and has been unable to exhaust those remedies.
The Government's assertion, in its report of March 27, 1995
("March 27 Report"), that domestic resources had not been
exhausted because Dianna Ortiz had not returned to Guatemala to assist
in the investigation of the case is not supported by the record.
The record shows that, despite Sister Ortiz's efforts, the
domestic case has not moved forward.
early as November 7, 1989, the Guatemalan press reported that Sister
Ortiz had issued a declaration describing the facts of her kidnapping,
torture and eventual release. However,
Government officials stated to the press that they would not rely upon
the statement made by Sister Ortiz in their investigation of the case,
because the statement might have been prepared by persons other than
Sister Ortiz who wished to embarrass the country of Guatemala.
February 1, 1990, the Supreme Court of Guatemala directed letters
rogatory, to be answered by Sister Ortiz in the United States, to the
Guatemalan Minister of Foreign Affairs for the appropriate diplomatic
processing. Sister Ortiz
did not receive the letters rogatory until February of 1991 because of
March of 1990, General Carlos Morales Villatoro, then Minister of the
Interior, officially closed the Government's investigation, declaring
that the case involved a "self-kidnapping."
At this date, the letters rogatory had only been recently issued
by the Guatemalan Supreme Court. Yet,
the Government chose to close the case without awaiting the results of
the only effort to obtain an official statement from Sister Ortiz. The case was reactivated only after international delegations
organized by the Ursuline Sisters met with then President Vinicio Cerezo
Arévalo and demanded further action in the case.
the request of Sister Ortiz, the Ursuline Sisters and other members of
the international community, President Cerezo named a special commission
to investigate Sister Ortiz's case in June of 1990.
After assuming office, President Jorge Serrano Elias dissolved
the commission in April, 1991.
There is no indication that the commission ever met or engaged in
any investigations during the time of its existence despite insistent
efforts by Sister Ortiz's lawyers and others to mobilize that body.
to the record, in December of 1990, Sister Ortiz's lawyer extended an
invitation to the Office of the Human Rights Ombudsman of Guatemala to
interview Sister Ortiz in the United States.
The invitation was declined.
Nevertheless, in October of 1991, officials from the Office of
the Human Rights Ombudsman did interview Sister Ortiz in the United
States. Afterwards, they
prepared a report which indicated that the interview had not been
satisfactory because of the nervousness of Sister Ortiz in the interview
and the special arrangements that had to be made to accommodate her.
These criticisms were made by the Ombudsman's office despite the
fact that it is understandable for an alleged victim of interrogation by
torture to require some accommodation in approaching an interview of
this nature and the fact that Sister Ortiz was able to provide
significant new details in the interview.
July of 1991, the Government announced the appointment of a special
independent prosecutor for the case, Fernando Linares Beltranena, and a
private investigator, Carl West.
A series of letters between Sister Ortiz's attorney and Special
Prosecutor Linares in late 1991 indicates that Special Prosecutor
Linares was invited on numerous occasions to interview Sister Ortiz, yet
the prosecutor failed to take this basic investigatory step.
The prosecutor insisted that Sister Ortiz meet with West, but
that interview also never materialized even after Sister Ortiz agreed,
despite her misgivings, to meet with West without the presence of
Special Prosecutor Linares.
April of 1992, Sister Ortiz travelled to Guatemala to provide a
statement to the courts and to participate in the investigation of the
case. On April 7, 1992,
Sister Ortiz testified before Judge Leticia Stella Secaira Pinto of the
Fifth Court of Instruction for Criminal Cases for approximately 12
The following day, Captain Yon Rivera, spokesman for the
Guatemalan military, announced in the press that Sister Ortiz's
activities in pursuing her case "could result in some sort of
her time in Guatemala, Sister Ortiz again expressed her willingness to
meet with investigator West if a tape recording of the interview would
be allowed or if a witness from the U.S. Congressional Task Force was
allowed to be present.
Special Prosecutor Linares and West refused to allow such an
Ortiz has since returned to Guatemala three more times to push for the
investigation of her case and to participate in domestic judicial
proceedings, in March 1993, January 1994 and November 1994.
During her trips to Guatemala, Sister Ortiz answered questions
presented by the prosecutor, provided detailed descriptions of the
persons involved in the commission of the crimes against her for the
elaboration of electronic sketches and participated in several judicial
recognition proceedings. In
one of those proceedings, she was able to recognize the Antigua Escuela
Politécnica, a military facility, as the place in which she was
Ortiz has also continued to pressure various Guatemalan officials to
resolve her case. In November of 1994, she met with the Prosecutor General for
Guatemala, Ramsés Cuestas Gómez.
Mr. Cuestas promised to provide her with periodic reports about
the status of her case. He
has failed to keep Sister Ortiz updated as promised despite Sister
Ortiz's efforts to obtain reports from him.
after the case was opened and before any significant investigation could
have occurred, officials of the Guatemalan Government began to declare
that Sister Ortiz's allegations were false or that no Government agents
had been involved. On
November 9 and 10 of 1989, the press announced that President Cerezo had
declared that he found it difficult to believe Sister Ortiz's story and
that, if the kidnapping had occurred, it had not been the responsibility
of government forces.
On November 12, 1989, the spokesperson for the National Police,
Guillermo Mollinedo, announced that the National Police had not been
involved in any kidnapping of Sister Ortiz.
The National Police described Sister Ortiz's attempts to obtain
justice as an attempt to embarrass the country and as a political
maneuver implemented in an effort to obtain financing for her
November 1989 and January 1990, General Alejandro Gramajo, then Minister
of Defense, made several statements to the effect that Sister Ortiz's
injuries did not occur or were self-inflicted.
The first statement was made to a delegation of religious
representatives, the second to Americas Watch.
General Gramajo also stated that Sister Ortiz had invented her
story to cover up her involvement in a "lesbian tryst."
He suggested that her facial injuries resulted from a love
affair. General Gramajo
formally retracted these statements, admitting that the investigations
in the case had not uncovered information which would support his
However, he has continued to make similar statements.
officials of the Government have also continued to make derogatory
statements against Sister Ortiz in reprisal for her diligence in
pursuing her case. In
January of 1994, a spokesperson for the Army, Edith Vargas de Marroquín
stated that Sister Ortiz suffered mental problems and from the vice of
These statements were made immediately after Sister Ortiz
recognized the military installation where she alleged she had been
detained. In November of
1994, another spokesman for the Army, Maurice DeLeon accused Sister
Ortiz on television and in the press of being the principal spokesman
for the rebel forces in Guatemala.
follows, therefore, from the foregoing that Sister Ortiz's efforts to
pursue a domestic resolution of her case have been thwarted from the
beginning. The Government
blocked Sister Ortiz's efforts to push the case forward and attacked her
personally to prevent her from accessing domestic remedies.
The Government cannot assert that domestic remedies exist, simply
because the case remains formally open long after it should have been
46(b) of the American Convention, requiring that a petition be submitted
within six months of the final decision in the domestic case, does not
apply in this case, because exhaustion of domestic remedies has been
excused. Pursuant to
Article 38(2) of the Commission's Regulations, the Commission finds
that, considering the circumstances of this case, the petition was
presented "within a reasonable period of time . . . as from the
date on which the alleged violation of rights has occurred."
The petition was processed by the Commission on April 18, 1990,
only four months after the violations of the Convention allegedly
occurred. The petition was
also filed one month after the Government announced its initial decision
to close the case. The
Commission was thus asked to exercise jurisdiction within a short period
of time after the Government had initially indicated by its actions in
the case that exhaustion of domestic remedies would be frustrated.
Commission finds that Sister Ortiz was placed under surveillance and
threatened, then kidnapped and tortured.
The analysis of the evidence which leads the Commission to this
conclusion is followed by a separate discussion of the Commission's
additional finding that agents of the Government of Guatemala were
responsible for these crimes against Sister Ortiz. After the discussion of its findings regarding the underlying
violations in the case, the Commission expounds its findings of fact
relating to the processing of Sister Ortiz's case in the domestic legal
system of Guatemala. Finally,
this report of the Commission applies the law of the American Convention
to the facts of this case as established by the Commission.
Findings of Fact
The Commission's Finding that the Underlying Violations Did Occur
Commission finds that Sister Ortiz was placed under surveillance as she
conducted her work in Guatemala and that she received threats.
Petitioner Ortiz has submitted copies of several of the threat
letters that she received. According
to uncontradicted statements made by Sister Ortiz, these letters reached
her in various cities throughout Guatemala, demonstrating that she was
being observed in a comprehensive and systemic manner over a period of
time. According to Sister
Ortiz's statements, she was also accosted on the street in Guatemala
City by a man who threatened her. The Government has not provided any evidence contradicting
this claim. In its response
dated February 15, 1995 ("February 15 Response") and in its
report of May 15, 1995 ("May 15 Report"), the Government
points out that no complaint regarding the threats Sister Ortiz received
was ever filed with the National Police or the courts in Guatemala.
However, that fact does not serve to prove that Sister Ortiz did
not receive threats, particularly when copies of written threat letters
are found in the record.
Commission also finds that Sister Dianna Ortiz was kidnapped and
tortured in Guatemala in early November of 1989.
The Commission has analyzed the detailed written and oral
statements Sister Ortiz has made about the kidnapping and torture.
The Commission finds that Sister Ortiz is a credible witness and
that her consistent statements support a finding that she was kidnapped
and taken to a clandestine detention center where she was tortured.
Sister Ortiz's statements are supported by her ability to confirm
her story through judicial proceedings.
For example, in the judicial reconstruction which took place on
March 24, 1993, Sister Ortiz was able to recognize portions of the route
that she and "Alejandro" took when they drove out of her place
of detention. She was able
to point out signs and landmarks which she recognized, some of which she
had mentioned previously in statements made in the United States.
For example, in her interview with the Office of the Human Rights
Ombudsman, Sister Ortiz mentioned that she believed she had seen a Banco
de Guatemala sign during her drive with "Alejandro."
In the March 24, 1993 judicial recognition proceeding, she
identified the Banco de Guatemala sign she had previously mentioned.
immediately after she reappeared, Sister Ortiz was examined by Doctor
David Alcare in Guatemala. Dr.
Alcare observed injuries on Sister Ortiz's back, noting that Sister
Ortiz's back showed numerous symmetrical injuries from the waist to the
shoulder. He found that the
injuries were first or second degree burns which had been inflicted
during the preceding 24 hours.
After Sister Ortiz fled to the United States, Dr. G.R. Gutierrez,
M.D. examined her on November 8, 1989 and found that she had 111 second
degree circular burns on her back and two abrasions on her left cheek.
its February 15 Response and May 15 Report, the Government asserted that
Sister Ortiz did not seek the services of a physician after escaping
from detention. These
assertions are contradicted by the record, showing that she was examined
by two physicians after her escape.
Ortiz's claims of torture are also supported by a statement from the
United States Ambassador to Guatemala in 1989, Thomas F. Stroock.
Ambassador Stroock saw Sister Ortiz in Guatemala immediately
after she reappeared. He
later provided a letter which indicated that he had seen through his
"own personal observation, that [Sister Ortiz] was seriously beaten
Commission considers it to be highly probable that Sister Ortiz was also
raped by her captors during her time of detention.
Sister Ortiz's statements provide significant evidence that she
was raped, and a rape would be consistent with the physical evidence
indicating that she was brutally tortured.
However, based on its careful review of the record, the
Commission cannot confirm the charge of rape with certainty.
The Commission believes it sufficient to find that Sister Ortiz
was subjected to torture. Any sexual violence or abuse which occurred would have been a
part of that torture.
Government has conceded in documents prepared by its agents that Sister
Ortiz was captured and tortured, even as it has asserted that the
responsibility for those facts remains unknown.
The Valdez Gutiérrez Report indicates that after National Police
investigated the case, it "was established" that Sister Ortiz
was kidnapped and tortured.
In a letter to the Supreme Court of Guatemala, the judge with
responsibility for the case, Irma Leticia Lam Nakakawa de Rojas,
indicated that the important elements to be clarified were the site of
Sister Ortiz's detention and the identity of those responsible for the
The judge treated as established the occurrence of the crimes
in its February 15 Response, the Government argued that the facts of
which Sister Ortiz complained had not been proven, much less the
responsibility for those acts. The Government continued to proffer arguments in support of
its theory that the kidnapping and torture had not been proven in its
May 15 Report. The
Government's arguments are not convincing in light of the serious
documentary, medical and testimonial evidence supporting Sister Ortiz's
support of its claim that the facts regarding the kidnapping and torture
of Sister Ortiz have not been proven, the Government points to the fact
that two witnesses allegedly saw Sister Ortiz leaving the Posada de
Belen alone on November 2, 1989. The
statements of these two witnesses are not in the record of this case
before the Commission. The Government communications which discuss the statements
refer to police reports which contain the statements. These police reports, referenced in the Government's
communications have not been produced.
The police reports in the possession of the Commission which
refer to the statements of the witnesses describe statements by the
witnesses which are less detailed than those described in the
The information about the statements included in the Government's
communications must therefore be viewed with caution.
The Government's reports repeat the findings of police reports,
not available to the Commission, which in turn repeat secondhand the
testimony of witnesses.
testimony of these witnesses, if accepted, would serve to support the
Government's theory that a "self-kidnapping" or staged
kidnapping occurred. However,
that theory is not consistent with the medical evidence which indicates
that Sister Ortiz suffered significant injuries, including 111 burns on
Commission does not assign full weight to the statements made by these
two witnesses for additional reasons.
One of the witnesses, Jose Dieguez Castaneda, allegedly made a
statement in which he indicated that he worked in the Posada de Belen
and had been requested by Sister Ortiz to open the gates to the garden
there for her. He stated
that he saw her walking to the back of the garden, searching for a way
out onto the street.
Dieguez's statement and Sister Ortiz's statements coincide in
establishing that Mr. Dieguez opened the gate for Sister Ortiz and that
she walked back into the garden. However, all descriptions of the garden indicate that it
covered a large area. Although
Mr. Dieguez may have seen Sister Ortiz walk towards the back of the
garden, there is no indication that he could see the back of the garden,
and it would be conjecture on his part to assert that she must have been
searching for a way out onto the street.
The Government also notes that Mr. Dieguez asserted that he saw
no strange persons waiting in the garden.
However, Sister Ortiz's statements indicate that she sat alone in
the garden listening to music for about ten minutes before she was
approached by the two men who kidnapped her.
According to her statements, no strange men would have been
visible when the gate was opened and she entered the garden.
the statements made by Mr. Dieguez are placed in question by the fact
that there is no record of any further statements by him other than
those made in November, 1989 and described by the National Police.
There is no record of Mr. Dieguez testifying under oath or before
any tribunal, although the Valdez Gutiérrez Report indicates that the
prosecutor working with the case in 1989 requested that he be summoned
to testify. Nor was
Investigator West able to find the witness when he attempted to do so in
October of 1991.
Commission notes various inconsistencies in the descriptions provided by
the other witness, Carlos Astún Asturias.
According to the information in the record before the Commission,
Carlos Astún Asturias provided several descriptions of Sister Ortiz and
the clothing she was wearing on November 2 which varied in the details.
However, Mr. Astún Asturias does not mention in any of the
descriptions that Sister Ortiz was wearing a blue sweatshirt.
According to Sister Ortiz's statements, she was wearing a bright
blue sweatshirt when she was kidnapped.
According to the West Report, the employees of Hayter Travel
Agency confirmed that she was wearing a sweatshirt when she appeared at
their offices after escaping detention.
Thus, the description provided by Mr. Astún Asturias does not
coincide with the clothing that Sister Ortiz was wearing when she was
kidnapped and when she reappeared.
description provided by Mr. Astún Asturias does coincide with the
description provided by Sister Darleen Chmielewski to the National
Police immediately after Sister Ortiz's disappearance.
In Sister Chmielewski's description, there is no mention of a
sweatshirt, presumably because Sister Chmielewski did not know that
Sister Ortiz had put on a sweatshirt after she was last seen by Sister
Chmielewski. The National
Police first obtained a statement from Mr. Astún Asturias before Sister
Ortiz reappeared, on the same day that Sister Chmielewski provided a
description of Sister Ortiz to the Police, including the clothes she
believed Sister Ortiz was wearing.
The obvious inference is that Mr. Astún Asturias was briefed by
the Police before making his statement.
the National Police reported to the Guatemalan press that Astún
Asturias had described Sister Ortiz as wearing a canvas vest ("chaleco
There is no indication in any other description that Sister Ortiz
was wearing such a vest on the day of her kidnapping.
The description provided to the Police by Sister Chmielewski
indicated that Sister Ortiz was using a wool shawl ("chal de lana").
Again, the testimony of Mr. Astún Asturias, when reviewed in
Spanish, more closely coincides with the description of Sister Ortiz in
possession of the Police than with the actual clothing that Sister Ortiz
was wearing. The Commission
finds that the statements of Mr. Astún Asturias were formed by the
description given by Sister Chmielewski to the Police rather than by the
memory of an event that he witnessed.
addition, according to the Valdez Gutiérrez Report, Mr. Astún Asturias
was summoned to testify in 1989 but did not appear.
The Police were not able to locate the witness.
According to the West Report, various persons indicated that Mr.
Astún Asturias was a vagabond. Investigator
West was not able to locate Mr. Astún Asturias to interview him when he
sought to do so in October, 1991. In
its February 15 Response, the Government indicated that Astún Asturias
did appear for a judicial reconstruction proceeding on April 8, 1992.
However, the record of that proceeding has not been produced
before the Commission.
support its argument that the facts of the kidnapping and torture are
not proven, the Government argues in its February 15 Response that
Sister Ortiz's statements demonstrate that there was no violence or use
of force in the alleged kidnapping.
The Government thus questions the fact that certain personal
effects were later found in the garden.
In the Guatemalan press, the Government suggested that the items
which were later found were intentionally placed in the garden to
provide greater realism to the story of the kidnapping.
In its May 15, 1995 Report, the Government repeats its argument
that Sister Ortiz's statements lead to the conclusion that there was no
violence or use of force in the alleged kidnapping.
Presumably, the Government suggests that no kidnapping occurred,
because Sister Ortiz was not forcibly removed from the Posada de Belen.
Ortiz indicated in the statement quoted by the Government that her
captors showed her a pistol and threatened that they would harm her
friends if she did not follow them.
The Commission finds that a kidnapping occurred, whether or not
physical contact and violence was actually used, because Sister Ortiz
was removed from the Posada de Belen against her will under threats of
violence to herself and others. In
any case, the statements quoted by the Government indicate that actual
physical force was used in the kidnapping. Sister Ortiz explained that the first man, that she had seen
on the street in Guatemala, grabbed her by the arm. When this man insisted that Sister Ortiz follow the two
captors, she refused and tried to get away.
Then, Sister Ortiz was shown the pistol and stopped struggling.
reports and the West Report indicate that the nuns at Posada de Belen
found the shawl that Sister Ortiz had been wearing, described by Sister
Chmielewski to the National Police, some hours after Sister Ortiz's
Reporters from Prensa Libre later found a watch in the garden.
The Bible Sister Ortiz had been carrying was also later found in
The physical struggle between Sister Ortiz and her captor would
have been sufficient to dislodge the watch from Sister Ortiz's arm.
It is also consistent with Sister Ortiz's statement about the
kidnapping that the shawl and the Bible would have been left behind when
she was led out of the garden. The
Government maintains that a ring was also found by reporters from Prensa
Libre. The Commission
possesses no information to corroborate the assertion that a ring was
found. The article
published in Prensa Libre which reports the discovery of the watch by a
reporter does not make mention of a ring.
The Commission's finding that Government Agents were responsible
for the underlying violations
Commission finds that the acts carried out against Sister Dianna Ortiz
were committed by agents of the Government of Guatemala acting under
color of their official capacity. This
conclusion is based on the evidence in the record which indicates that a
uniformed policeman participated in the acts against Sister Ortiz, and
that she was detained in a Guatemalan military installation.
In addition, the evidence shows that, before she was kidnapped,
Sister Ortiz was subjected to surveillance of a nature which could only
have been carried out by the Guatemalan Government.
Finally, the kidnapping and torture of Sister Ortiz corresponds
to a pattern of activity by the Guatemalan Government in violation of
Ortiz's credible statements indicate that she was taken to the detention
center in a police car driven by a uniformed policeman who also took
part in Sister Ortiz's torture. Sister
Ortiz was able to recognize the type of car in which she was driven to
her place of detention in a judicial recognition proceeding.
Sister Ortiz was also able to recognize the place of her
detention and torture in a judicial recognition proceeding.
Sister Ortiz recognized the Antigua Escuela Politécnica, a
military installation in Guatemala City, as the place where she was
detained and tortured.
Government has contested Sister Ortiz's claim that agents of the
National Police took part in the crimes against Sister Ortiz.
The Commission finds unconvincing the evidence offered by the
Government to support its argument.
in its February 15 Response and May 15 Report, the Government claims
that there exists no National Police patrol car with the number
described by Sister Ortiz in her statements.
The Government asserts that Sister Ortiz stated that she observed
that the number on the patrol car in which she was driven contained a
number "7" in the middle.
The Government has pointed to reports from the National Police
which indicate that there exist no patrol cars in Guatemala with a
number "7" in the middle of the three numbers normally found
on patrol cars. This
contradiction would tend to disprove, although it alone would not be
sufficient, Sister Ortiz's allegation that she was driven in a National
Police patrol car to the center where she was detained.
However, the contradiction pointed out by the Government is not
translations to Spanish of statements made by Sister Ortiz in several
proceedings before the court in Guatemala, Sister Ortiz is quoted as
having stated that the number "7" was in the middle of the
numbers on the patrol car in which she was driven.
However, in other statements from the same time period made by
Sister Ortiz in English, she simply indicated that among the numbers on
the patrol car was included the number "7".
This confusion among the statements made by Sister Ortiz may have
resulted from translation difficulties which occurred when Sister Ortiz
made her statements to the court in Guatemala in English.
Although Sister Ortiz has a Spanish surname, her Spanish is poor
as it is not her first language. In
a statement to the court in Guatemala on March 25, 1995, Sister Ortiz
clarified that she could not indicate what position the number
"7" occupied among the numbers on the patrol car.
The Commission notes that some patrol cars in Guatemala City and
the surrounding areas do have the number "7" among the three
the Government also seeks to show that National Police agents were not
involved in the kidnapping and torture of Sister Ortiz by referring to a
National Police report which indicates that no patrol cars were directed
to cover the route from Antigua, Guatemala to Guatemala City on the day
of the kidnapping.
Sister Ortiz has alleged and the Commission has found that Sister
Ortiz was kidnapped and tortured. The
Commission finds that it would be extremely unlikely for the National
Police to formally schedule a patrol car to kidnap Sister Ortiz and to
record that information in official logs.
Government has also argued that Sister Ortiz has failed to support her
claim that she was detained in the Antigua Escuela Politécnica by
pointing out that Sister Ortiz was unable to complete the judicial
recognition at the Escuela Politécnica. The court document reflecting the judicial recognition
proceedings indicates that Sister Ortiz could not continue the
proceedings, because she suffered a nervous attack immediately upon
entering the building and recognizing it as her place of detention.
Her reaction supports a finding that her recognition of the place
of her detention was credible. Sister
Ortiz's recognition is further supported by the fact that she had
previously recognized the outside of the Escuela Politécnica as the
possible place of her detention in another judicial recognition
Government has noted that the judge in charge of the proceeding, Judge
Lam Nakakawa de Rojas, was not able to locate any places of clandestine
detention in the building. Judge Lam Nakakawa's inability to locate the place of
detention within the Escuela Politécnica does not constitute adequate
proof that the Escuela Politécnica was not the site of Sister Ortiz's
detention. The document
reflecting the proceeding specifically indicates that the judge only
viewed the rooms which were in use, not all parts of the building.
Commission's finding that State agents were responsible for the acts
committed against Sister Ortiz is also supported by evidence in the
record which indicates that, before the kidnapping, Sister Ortiz was
held under strict surveillance for a significant period of time.
Agents of the security forces of Guatemala would be most likely
to have the means required to conduct such extensive surveillance.
Ortiz received threat letters in various parts of the country where she
spent time. She received one written death threat only days after she
returned to Guatemala from the United States in September of 1989.
That fact demonstrates that those following and threatening
Sister Ortiz must have known of her reentry into Guatemala almost
immediately. In addition,
Sister Ortiz indicated in her statements that, during her interrogation
and torture, she was shown pictures of herself in different parts of the
country. The first
photograph was taken within weeks of her first arrival in Guatemala in
September of 1987. One of
the pictures was of Sister Ortiz and her companions at the retreat
center in Antigua taken a few days before she was kidnapped.
The involvement of Government security forces is also supported
by Sister Ortiz's statements which indicate that the Guatemalan military
had been present in several of the towns where the pictures were taken.
Those statements are uncontradicted by the Government.
fact that Sister Ortiz's captors showed her surveillance photos during
her interrogation demonstrates the connection between Sister Ortiz's
captors and the systematic surveillance and threats to which she was
exposed. Evidence of this
connection is also found in Sister Ortiz's statements regarding the
conversation she had with "Alejandro," the man who led Sister
Ortiz out of the detention center.
"Alejandro" acknowledged her captors' connection to the
threatening letters by suggesting that they had tried to warn her and
that she should have taken the threats more seriously.
evidence of State involvement is found in the fact that the attacks on
Sister Ortiz conform to a pattern of repressive treatment by the
Government. In the
inter-American system for human rights, Government participation in
abuses against a victim can be proven by showing that the Government
carried out, or at least tolerated, a practice which violates human
rights, so long as the victim's case can be linked to the Government
Government has engaged in a pattern of repression of representatives of
the Church and others working on behalf of the poor and indigenous.
Phillip Berryman, an expert on the history of the Church in
Central America, has concluded that the military in Guatemala believes
that the Church is to be blamed for dissent or opposition.
His view is supported by a publication of the Army Public
Relations Office which states that "some religious activists --
both from catholic as well as protestant churches -- preached to the
peasants so that these, with new ideas and religious principles backed
by the authority of the preachers, would reject the bases of a
The Commission has noted that rural indigenous groups and those
who work with them are also often unjustly treated by the Government as
enemies of the Government or as accomplices of the armed subversive
Ortiz was present in Guatemala as a representative of the church who
worked with poor indigenous persons in Huehuetenango.
The evidence indicates that Dianna Ortiz was attacked at least
partly as a result of her work and involvement.
According to her statements, when she was accosted on the street
in Guatemala, the attacker told Sister Ortiz that they knew who she was
and that she was working in Huehuetenango.
This same man later kidnapped her with the assistance of other
addition, Sister Ortiz was accosted for the first time on the streets of
Guatemala after she was seen speaking with persons who were
participating in a teacher's strike in Guatemala City.
During that same period of time, Sister Ortiz was attending a
language school which combined Spanish instruction with a live-in
experience with a Guatemalan family.
She stayed with a family, that of Rosa Pu and Miguel Pajarito,
whose members belonged to the Grupo de Apoyo Mutuo ("GAM").
According to Sister Ortiz's statements, Miguel Pajarito was
subsequently "disappeared," his whereabouts unknown since he
was abducted in 1990.
Commission and other experts have noted the pattern of violence by the
Government of Guatemala against teachers and human rights groups,
It can be inferred from the facts of this case and the patterns
of violence in Guatemala that Sister Ortiz was attacked by elements of
the Government who associated her with groups and persons whom it wished
to control and intimidate.
according to expert testimony in the record before the Commission, the
manner in which Sister Ortiz was held under surveillance and then
kidnapped and tortured corresponded to methods used by the Government
during the time when the crimes against Dianna Ortiz were committed.
A statement in the record by Allan Nairn, an expert on army and
security forces and problems of human rights abuses in Guatemala,
indicates that it was typical for Guatemalan military intelligence
forces to send written threats and conduct photo surveillance during the
time in which Sister Ortiz was subjected to these activities.
Nairn also indicates that it was common practice for Guatemalan
intelligence, the G-2 forces, to use members of the police force to
capture and torture their victims.
The Commission's findings regarding the domestic judicial
Government does not dispute that the judicial proceeding in Dianna
Ortiz's domestic case remains in the original investigative phase and
that no suspect has ever been arrested or charged.
The Government has argued, in its February 15 Response, May 15
Report and March 27 Report, as well as in the Guatemalan press, that the
lack of progress in the domestic proceedings is due to Sister Ortiz's
failure to lend her cooperation to the investigation of the case.
As described in the above section on admissibility, Sister Ortiz
has engaged in numerous efforts to assist in the investigation of the
case, within the judicial proceedings and in addition to them.
Nor has the Government ever explained what information it
required which was unavailable because of Sister Ortiz's alleged failure
its March 27 Report, the Guatemalan Government stated that Dianna Ortiz
"has not returned to Guatemala" to offer proof in the process.
In fact, Sister Ortiz has visited Guatemala on four different
occasions to take part in court proceedings and investigative efforts.
She has provided testimony to the Guatemalan courts, participated
in judicial recognition proceedings and provided detailed descriptions
of those she accuses of the crimes against her for the elaboration of
its February 15 Response, the Government offered several factual
assertions to support its claim that Sister Ortiz had failed to offer
her cooperation. First, the
Government indicated that Sister Ortiz presented her declaration in the
case only two years and five months after she was attacked.
The Government refers to the statement made by Sister Ortiz to
the Criminal Court of First Instance for Instruction in Guatemala City
on April 7, 1992.
Government is incorrect in asserting that the April 7, 1992 statement
was the first statement made by Sister Ortiz.
Articles which appeared in the Guatemalan newspapers demonstrate
that Guatemalan Government officials had a statement from Sister Ortiz
in their possession within days after her reappearance.
Sister Ortiz also provided an official statement to the
Guatemalan courts as soon as she received a request to do so through the
letters rogatory issued in the United States in February of 1991.
judge of the court with jurisdiction over the case and the Special
Prosecutor assigned to the case later asserted that Sister Ortiz's
response to the letters rogatory was not a valid declaration before the
courts of Guatemala for jurisdictional reasons.
Yet, the letters rogatory were issued by the Supreme Court of
Guatemala. Presumably, they
would not have been issued if the response was to have no effect in the
Guatemalan courts. In any
case, whether Sister Ortiz's statement was formally valid or not, it was
available to Guatemalan officials and could have been used to begin or
advance investigations in the case.
Government also noted in its February 15 Response that, when Sister
Ortiz gave her declaration on April 8, 1992, she referred to the
original statement that she made from the United States and so did not
provide a spontaneous statement. The
Government cites the court document reflecting the proceeding to make
this comment. However, the
Government fails to cite that part of the document in which Special
Prosecutor Linares indicates that Sister Ortiz acted fully within her
rights in referring to her previous statement.
The Government cites no provision of Guatemalan law which would
prevent Sister Ortiz from referring to the document and there is no
indication that Sister Ortiz was ever told that she could not do so.
Government asserts in the February 15 Response that Sister Ortiz failed
to participate in the judicial recognition proceedings which took place
in the Posada de Belen and in the Antigua Escuela Politécnica.
The Government notes that the proceedings were not carried out,
because Sister Ortiz "fainted and became indisposed."
The Commission finds that the Guatemalan investigatory technique
of judicial recognition is a very difficult proceeding for a victim who
claims to have been kidnapped, tortured and raped.
Sister Ortiz's actions, rather than demonstrating a lack of
cooperation on her part, show her willingness to overcome her personal
fear and discomfort in order to fully cooperate in the investigation of
the Government states that there exists no medical certification
relating to Sister Ortiz's injuries and burns in the record in the
domestic case. This
statement by the Government is contradicted by the Valdez Gutiérrez
Report. That Report
indicates that the record in the domestic case contains the medical
examination certificates of both Dr. David Alcare and Dr. Gutiérrez,
both indicating that Sister Ortiz had suffered injuries.
The letter from Dr. Gutierrez was sent with Sister Ortiz's
response to the letters rogatory in the first part of 1991.
Sister Ortiz did fail to follow through with an examination
scheduled to take place in Guatemala on March 23, 1993.
However, this fact does not lessen the probative force of the
prior medical examinations which took place more contemporaneously to
the injuries in question.
the Government asserts in its February 15 Response that Sister Ortiz
failed to cooperate when the prosecutor presented ten cross-examination
questions related to her statement to the court.
The Government does not make clear during which proceeding this
alleged failure to cooperate occurred nor does it provide any document
or other evidence to support its contention.
Ortiz has indicated that, after she provided her testimony on April 7,
1992, Special Prosecutor Linares asked a series of irrelevant and
demeaning questions. Sister
Ortiz refused to subject herself to the personal attacks.
On March 25, 1993, Sister Ortiz took part in a judicial
questioning proceeding before the court in which questions were offered
by the prosecutor's office. Sister
Ortiz refused to answer some of the questions.
The prosecutors sought to have Sister Ortiz answer questions
about the color of ink on the threat letters she received and similar
items which could not contribute to the clarification of the facts of
the case. Some of the
questions asked Sister Ortiz for information which she had already
provided in her written and oral statements to the court.
The Commission, having before it the document reflecting the
questions asked and the responses, finds that the questions were
harassing and repetitive.
Sister Ortiz's response did not demonstrate a lack of cooperation
on her part.
Commission finds that the responsibility for the lack of progress in the
resolution of Sister Ortiz's domestic case lies with the Government
rather than with Sister Ortiz. Although
various judicial and investigative proceedings were conducted in
relation to Sister Ortiz's case, the Government has failed to conduct
investigations which would serve effectively to clarify the facts of the
case. There is no
indication in the record that the Guatemalan military has ever
investigated the accusations against it and other security forces of the
Government. In its Report
of May 15, 1995, the Government indicated that the Special Investigation
Group of the National Police assigned to the case had never submitted a
report to the courts.
is no evidence in the record that the military and the National Police
conducted the basic investigations which would be appropriate in this
case. For example, there is
no evidence of an investigation of the accusation that a clandestine
detention center existed within a military installation in Guatemala
City or of any inquiry into which military units were in the areas where
pictures were taken of Sister Ortiz during times of military presence.
The court with jurisdiction over the case sent out a request to
the various branches of the security forces of Guatemala to list any
North Americans that had worked with those agencies.
But, there is no indication that either the military or the
National Police conducted an independent investigation to determine
whether a North American matching the description of
"Alejandro" worked with Guatemalan security forces either
covertly or overtly. Once
the National Police indicated that no patrol cars contained a number
"7" in the middle of the patrol car number, the Police never
conducted further investigations, such as interviews with police
officers assigned to patrol cars with the number "7" in any
position in the patrol car number.
Attorney General for Guatemala, Ramsés Cuestas Gómez, has confirmed
the failure of the Guatemalan security forces to conduct proper
investigations. In a sworn
statement by Dianna Ortiz, she recounts statements made by Ramsés
Cuestas in a meeting that she had with him.
The Attorney General indicated that the case had not progressed
because the Guatemalan military did not have the political will to carry
out a complete investigation to determine whether military personnel
were involved in the incident. He
also indicated it had been difficult to gain access to military
installations and to conduct investigations into the actions of military
personnel. The Attorney
General noted that the judge in charge of the case had requested
information from the military without success.
Office of the Ombudsman for Human Rights conducted some investigation
into the case. However, according to Sister Ortiz's statements at the
February 3, 1995 hearing before the Commission, she has been told that
her file at the Office of the Ombudsman has been lost or was taken by
President Ramiro de Leon Carpio when he left that office and assumed the
Presidency of Guatemala.
Commission notes that the domestic judicial proceedings in the case have
been handled by six different judges--two judges in Antigua, Guatemala,
and four judges in Guatemala City.
The Valdez Gutiérrez Report and the report of another
prosecutor, Luis Fernando Mérida, indicate that at least four different
prosecutors have worked on the case.
Commission also finds that Special Prosecutor Linares failed to perform
adequately his duties as an impartial prosecutor.
Although it was claimed that his appointment, with the assistance
of Investigator West, would accelerate the investigation and resolution
of the case, that result was not achieved.
Linares did not receive proper authority to take the necessary
actions in the case until February 2, 1992, six months after his
actions of the prosecutor were aimed at discrediting Sister Ortiz rather
than moving the case forward. The
lack of interest of Special Prosecutor Linares in fulfilling his duties
to impartially investigate and prosecute the case is shown by a
statement he made to the press on April 3, 1992.
Linares declared that Sister Ortiz "must prove the veracity
of the alleged threats, kidnapping, rape and torture, and not allow her
attorney . . . to make a political question out of a case which should
be strictly judicial."
Through his actions and statements such as these, Linares
transferred the burden of pursuing and proving the case from the
Government to Sister Ortiz. At
the same time, he insinuated that her pursuit of the case might be
motivated by a political agenda.
three different occasions, Special Prosecutor Linares published in the
Guatemalan newspapers declarations indicating that Sister Ortiz had not
participated in the investigation of the case and had not made a
statement before the tribunals of Guatemala.
These declarations were published on March 1, 1992, on February
20, 1992, and on April 8, 1992 (the same day that Sister Ortiz gave her
statement to the court). By
the time these declarations were published, Sister Ortiz had already
provided a formal statement to the courts of Guatemala by means of her
response to letters rogatory.
Prosecutor Linares also announced in his published statements that
Sister Ortiz had not allowed Investigator West to interview her in the
United States, although Sister Ortiz had actually invited both Linares
and West to interview her in the United States.
No such interview ever took place as a result of the
unwillingness of the prosecutor and the investigator to accept the
Prosecutor Linares repeatedly announced in interviews with the press
that Sister Ortiz had failed to submit to a gynecological examination.
Linares' statements narrowly
focused Sister Ortiz's case on the claim that she was raped, a sensitive
and morally charged question, rather than on her overall case of
kidnapping and torture which was well documented.
Moreover, Linares continued to demand that Sister Ortiz undertake
a gynecological examination years after the torture and rape were
alleged to have occurred. An
examination at that late date would have been futile if not harassment
in and of itself.
both claimed to have investigated the case to the best of their
abilities, neither Beltranena nor West arrived at any conclusions about
the case. In 1993, Linares
was appointed to the Guatemalan Congress and left his position as
Special Prosecutor. The
Government did not name a new Special Prosecutor.
The other staff prosecutors who have worked on the case have also
failed to achieve any progress.
Conclusions of Law
Article 5 - Right to Humane Treatment and the Inter-American
Convention to Prevent and Punish Torture
5(1) of the Convention states that all persons have the right to have
their "physical, mental and moral integrity respected."
Agents of the Government of Guatemala attacked Dianna Ortiz's
physical, moral and mental integrity when they threatened her by letter
and by personal confrontation, suggesting that she was going to be
harmed and that she should leave the country.
5(2) sets forth specifically that "(n)o 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."
The actions of Government agents in abducting, detaining and
torturing Dianna Ortiz constitute blatant violations of Article 5(2) of
Commission also notes that the Government of Guatemala ratified the
Inter-American Convention to Prevent and Punish Torture (the
"Convention on Torture") on January 29, 1987.
Article 2 of the Convention on Torture defines torture as:
any act intentionally performed whereby physical or mental pain
or suffering is inflicted on a person for purposes of criminal
investigation, as a means of intimidation, as personal punishment, as a
preventive measure, as a penalty, or for any other purpose.
Torture shall also be understood to be the use of methods upon a
person intended to obliterate the personality of the victim or to
diminish his physical or mental capacities, even if they do not cause
physical pain or mental anguish.
inhumane treatment suffered by Sister Ortiz at the hands of agents of
the Government falls within this definition of torture.
Government agents inflicted physical and mental suffering upon
Dianna Ortiz, presumably to punish and intimidate her as a result of her
participation in certain activities and her association with certain
persons and groups. The
torture inflicted upon Dianna Ortiz also closely fits the description of
methods used "to obliterate the personality of the victim."
Sister Ortiz was kidnapped from a religious retreat, and taken
from her life as a religious worker, to be hidden away in a detention
center where she was tortured. Sister
Ortiz has described the torture experience as the destruction of her
personality and has explained how the mental and social effects of the
torture have prevented her from engaging in daily activities and
resuming a normal life.
Article 7 - Right to Personal Liberty
7 of the American Convention provides that any deprivation of liberty
must be carried out in accordance with preestablished law.
Article 7(3) specifically provides that, "No one shall be
subject to arbitrary arrest or imprisonment."
Guatemalan Government agents violated Article 7 of the American
Government has never admitted that Sister Ortiz was detained and held by
Government agents. Sister
Ortiz has identified the Antigua Escuela Politécnica, a military
installation, as the place where she was held.
Yet, the Government has continued to deny that she was held at
the Escuela Politécnica or that any detention center exists there.
However, the Commission has previously found that agents of the
Guatemalan Government have kidnapped persons and held them in
clandestine detention centers located within military facilities even
when they have denied such detention.
In the present case, the Commission finds that Sister Ortiz was
detained in such a clandestine military detention center.
Government agents have consistently denied the fact of the detention or
the existence of any clandestine detention center, the detention was
necessarily carried out in secret and outside the boundaries of the law,
in violation of Article 7. The Commission finds that the existence of clandestine
detention centers in Guatemala presents a serious concern.
in clandestine centers constitutes a particularly grave form of
arbitrary deprivation of liberty. The
activities of Government agents involved in such activities are
completely beyond the bounds of the law and are incapable of being
reviewed because of their secret nature.
The Government agents involved in such cases must deny that any
kidnapping occurred or that any secret place of detention exists to
protect themselves and to maintain the secrecy of the detention center.
The victim will generally have learned little about her place of
detention or her captors and generally will not be able to identify
them. Not only is it
impossible for the victim to exercise legal rights while being detained,
but also it is extremely difficult to challenge the detention afterwards
even if the victim is released alive.
a victim is kidnapped by public agents, the state also infringes the
victim's right to be taken without delay before a judge and to invoke
the appropriate procedures to review the legality of the arrest, all in
violation of Article 7.
Article 11 - Right to Privacy
11(1) of the American Convention states that, "(e)veryone has the
right to have his honor respected and his dignity recognized."
Article 11(2) provides that, "(n)o one may be the object of
arbitrary or abusive interference with his private life, his family, his
home, or his correspondence, or of unlawful attacks on his honor or
agents made Sister Ortiz the object of arbitrary and abusive
interference, in violation of Article 11(2), when she was placed under
surveillance and was sent threatening letters wherever she travelled in
agents attacked Sister Ortiz's honor and dignity in violation of Article
11(1), when they violently abducted and tortured her.
Government officials further violated Article 11(1) when they engaged in
repeated unwarranted attacks on Dianna Ortiz's honor and reputation,
declaring that her accusations against the Government were fabricated,
that she had staged her own kidnapping and that she was working with
groups who wished to embarrass the country of Guatemala.
Particularly serious, are statements by Government officials that
Sister Ortiz had received her injuries as the result of a romantic,
possibly lesbian, encounter. The
statements caused great harm to Sister Ortiz's honor and reputation,
which were largely based on her work as a Catholic nun who had come to
Guatemala to improve the lives of poor indigenous persons.
Articles 12 and 16 - Freedom of Conscience and Religion and
Freedom of Association
12 of the American Convention provides for the rights to freedom of
conscience and freedom of religion.
Article 16 of the Convention states that, "(e)veryone has
the right to associate freely for ideological, religious, political,
economic, labor, social, cultural, sports, or other purposes."
agents violated Articles 12 and 16.
It is likely that the attacks against Sister Ortiz were intended
to punish and suppress her religious activities as a Church missionary
and her work with the indigenous people of Huehuetenango, as well as her
association with members of GAM. In
addition, because of the surveillance, threats, kidnapping, torture and
rape which Sister Ortiz experienced, she returned to the United States
to escape her captors and the violence against her in Guatemala and has
been unable to return because of her fear.
As a result, she has been denied her right to exercise her right
to freedom of conscience and religion by working as a foreign missionary
in Guatemala for the Catholic Church.
She has also been denied her right to associate with the people
of Huehuetenango, the Church in Guatemala and the GAM.
Articles 8 and 25 - Right to a Fair Trial and Right to Judicial
8 and 25 of the American Convention provide individuals with the right
to access to tribunals, the right to pursue and be heard in judicial
proceedings and the right to a decision by the appropriate legal
authority. Article 25(1) of
the American Convention sets forth that:
Everyone 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
8(1) of the American Convention provides that every person has the right
to be heard "with due guarantees" by a competent and
independent tribunal. Article
25(2) requires governments to ensure that any person pursuing legal
recourse "shall have his rights determined by the competent
the instant case, the Government of Guatemala has failed to honor its
obligation to provide simple, swift and effective legal recourse to
Sister Ortiz. Sister
Ortiz's attempts to be heard by competent and impartial tribunals in
Guatemala and to obtain a resolution of her case in those courts have
been consistently blocked and have been punished by repeated and unjust
criticisms of Sister Ortiz. Rather
than properly investigating and pursuing the claims brought before the
appropriate tribunals in Guatemala by Dianna Ortiz, the Government has
attempted to place the burden on Sister Ortiz to investigate and prove
her allegations against Government agents and has blamed Sister Ortiz
for the lack of results in her case.
than six years after Sister Ortiz was kidnapped and tortured, her
criminal case in the domestic courts of Guatemala has not succeeded in
bringing to justice the individuals responsible for the attacks against
her. Despite the fact that
absolutely no resolution of the domestic judicial proceeding has been
obtained and no results have been achieved, the Government suggested in
its February 15 Response that it may seek to close the case.
Such action would definitively preclude any possibility for
Sister Ortiz to obtain a resolution of her case in the domestic system.
Article 1(1) - Obligation to Respect Rights
violations at issue in the instant case demonstrate that the State of
Guatemala has failed to uphold the undertaking set forth 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
first obligation of any State party to the American Convention is to
respect the rights and freedoms set forth therein.
Whenever a State organ, official or public entity violates . . .
rights (named in the Convention), this constitutes a failure of the duty
to respect the rights and freedoms set forth in the Convention . . . .
the State is responsible for the acts of its agents undertaken in
their official capacity and for their omissions, even if they are acting
outside the sphere of their authority or in violation of internal
the instant case, agents of the Government, under color of their
official authority, engaged in surveillance and threats against Sister
Ortiz. Government agents,
including a uniformed policeman, then kidnapped Sister Ortiz, took her
to a detention center in a military installation and tortured her.
These actions constitute clear violations of the American
Convention imputable to the Government of Guatemala.
Additional state agents engaged in violations refusing to
adequately investigate and prosecute the crimes.
The Government of Guatemala is thus responsible for a violation
of Article 1(1) of the American Convention.
second obligation of the State is to "guarantee" the free and
full exercise of the rights recognized by the Convention.
The Commission reiterates that it is:
the duty of the 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 of human rights.
Government has not fulfilled its obligations to guarantee Sister Ortiz's
human rights. The structures of public power and government in Guatemala in
the 1980s permitted the attacks against Sister Ortiz to occur.
Since that time, the authorities have continually denied that
Sister Ortiz was threatened, followed, kidnapped, detained and tortured
and have denied that agents of the Guatemalan Government played a role
in any attacks which did occur. The
State has failed to adequately investigate the crimes against her, has
failed to advance the judicial proceedings so as to hold those
responsible accountable for their crimes and has failed to provide any
compensation to Sister Ortiz. The
ultimate result of the Government's investigations and judicial
proceedings has been the denial of justice to Dianna Ortiz and impunity
for the perpetrators.
Government's violations of Article 1(1) have been particularly severe in
the instant case. In relation to
Article 1(1), the Inter-American Court of Human Rights has made clear
that the duty to investigate:
must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective.
An investigation must have an objective and be assumed by the
State as its own legal duty, not as a step taken by private interests
that depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by the
Government has not complied with these requirements of the Court.
Soon after Sister Ortiz reappeared, it became clear that the
Government had determined that it would deny the facts alleged by Sister
Ortiz and deny Government involvement.
Later investigative efforts, when taken, were directed towards
supporting those denials. The
Government never provided any indication that it would carry out an
Special Prosecutor assigned to the case failed to conduct an impartial
and objective investigation. Instead,
he blamed Sister Ortiz for the lack of progress in the case.
The Special Prosecutor also sought to focus attention away from
the Government's duty to investigate the crimes against Sister Ortiz by
focusing on her claim that she was raped.
The Government's attacks on the victim and the proof she has
offered, through the Special Prosecutor, do not relieve the Government
of its responsibility to pursue the case as a whole, because the duty to
investigate is irrenounceable and nondelegable.
Government, through various officials, has repeatedly claimed that
Sister Ortiz has failed to cooperate in the proceedings as a means of
deflecting attention away from its failure to properly investigate
Dianna Ortiz's case and to achieve justice.
This argument of the Government must fail for two reasons.
First, the Commission's findings of fact demonstrate that the
accusations against Sister Ortiz are entirely unfounded.
Second, as the Court made clear in Velásquez Rodríguez,
the responsibility to investigate human rights violations and carry out
an effective judicial process against those who violate human rights
lies firmly with the state.
The State of Guatemala continues to bear the obligation to
investigate and fully clarify the circumstances of the kidnapping and
torture of Sister Ortiz and to submit to prosecution the individuals
responsible without reference to the participation and cooperation of
PROCEEDINGS AFTER COMMISSION ADOPTION OF THE ARTICLE 50 REPORT
to Article 50 of the Convention, the Commission during its 91º Regular
Session, approved Report 9/96 concerning the present case.
That report and the recommendations contained therein were
transmitted to the Government of Guatemala by communication of April 11,
1996 with a request that the Government inform the Commission of the
measures which it had adopted to comply with the recommendations of the
Commission and to remedy the situation examined within a period of 60
days. The Article 50 report
included the decision of the Commission to the effect that the case
would be presented to the Inter-American Court on Human Rights if the
Government did not put into practice the recommendations of the
Commission within the 60-day period.
May 31, 1996, the Government directed a letter to the Commission asking
that the processing of this case be suspended.
On June 3, 1996, the Government sent a further note clarifying
its request. The Government
specifically requested a two-month extension of time to respond to
Report 9/96 and a suspension of the three-month period for submission of
the case to the Court provided for in Article 51 of the Convention.
June 10, 1996, the Commission decided to grant the two-month extension
and to accept the request for suspension of the three-month period for
submission to the Court. This decision was communicated in writing to the Government
on June 14, 1996. In that
note, the Commission made clear that the period for responding to the
Article 50 report would expire on August 10, 1996.
July 26, 1996, the Government directed a letter to the Commission
requesting an additional 60-day extension of time to respond to the
Commission's Article 50 report. The
Government based this request on the fact that the prosecutor assigned
to the case in the domestic arena had asked to interview Sister Dianna
Ortiz in order to carry out further investigations in compliance with
the recommendations of the Commission set forth in the Article 50
August 2, 1996, Sister Dianna Ortiz communicated to the Commission,
through her attorney, that she would not agree to an oral interview with
the prosecutor. The letter
sent by Sister Ortiz's attorney stated that, "[t]he Government
already has all the information that Sister Ortiz can provide about what
happened to her in Guatemala on November 2, 1989. . . .
However, if the Government legitimately has some new questions
that are not answered by Sister Ortiz's prior testimony, the Government
is welcome to submit such questions to Sister Ortiz in writing."
Based on this decision by Sister Ortiz not to carry out an oral
interview with the prosecutor, the Commission communicated to the
Government on August 6, 1996 that it considered that the grant of an
extension of time to the Government was not necessary.
Government never responded to Article 50 Report 9/96 and thus failed to
demonstrate compliance with the recommendations of the Commission.
Accordingly, the task of the Commission was to decide how to
proceed with the case, on the basis of the "alternative that would
be most favorable for the protection of the rights established in the
Dianna Ortiz, through her attorney, communicated to the Commission, by
note of August 27, 1996, her wishes that this case not be presented to
the Court. Later, Dianna Ortiz signed a letter confirming that the
statements made by her lawyer had been authorized by her and that they
accurately represented her decision. Specifically, the August 27 letter stated that:
Sister Ortiz wants, as she has always wanted, the Government of
Guatemala to be held responsible and accountable for the human rights
abuses which it has inflicted on her.
On the other hand, the effort to obtain such justice has taken,
and continues to take, an enormous personal toll on Sister Ortiz.
As Sister Ortiz has previously explained . . ., for Sister Ortiz
to testify about her abduction and torture is a tremendously
painful--even terrifying--ordeal for her.
There have been occasions when Sister Ortiz has felt that her
emotional and psychological wounds have finally begun to heal, only to
have that sense of healing destroyed by the renewed trauma of reliving
her abduction and torture during the course of giving testimony.
letter indicated that, for these reasons, Sister Ortiz had decided that
she did not wish the case to be sent to the Court.
to the Convention, the decision of the Commission to submit a case to
the jurisdiction of the Court belongs exclusively to the Commission.
The Commission decided on September 6, 1996 that the alternative
most favorable for the protection of human rights would be not to send
this case to the Court. The
Commission reached this decision, not on the grounds that the case did
not merit presentation to the Court, but rather on the basis of an
analysis of the request of the victim Sister Dianna Ortiz, the
consequences for her of sending the case to the Court and the special
circumstances of the case. The
Commission decided instead to continue to examine the matter and to
prepare this Article 51 report for transmittal to the Government with a
view to publication if the Government again fails to demonstrate
compliance with the recommendations of the Commission.
on the foregoing,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
light of the information and observations provided above, that the State
of Guatemala is responsible for violations of the human rights of Dianna
Ortiz to humane treatment, personal liberty, a fair trial, privacy,
freedom of conscience and religion, freedom of association and judicial
protection, all protected in Articles 5, 7, 8, 11, 12, 16 and 25 of the
American Convention, and has failed to uphold its obligation established
in Article 1.
Commission recommends to the State of Guatemala that it:
Undertake a prompt, impartial and effective investigation of the
facts denounced so that the circumstances of and the responsibility for
the violations found may be fully detailed in an officially sanctioned
account of the crimes committed against Sister Ortiz.
Undertake the measures to submit the individuals responsible for
the violations in the instant case to the appropriate judicial
Redress the consequences of the violation of the rights
enunciated, including the payment of an adequate and fair compensation
for the harm caused to Sister Ortiz.
publish this report, pursuant to Article 48 of the Commission's
Regulations and Article 51.3 of the Convention, because the Government
of Guatemala did not adopt measures to correct the situation denounced
within the time period.
April 30, 1990
November 17, 1992
July 10, 1990
February 15, 1995
July 18, 1991
March 27, 1995
April 8, 1992
May 15, 1995
October 5, 1992
November 27, 1995
The petitioner, through
her attorneys, sent communications to the Commission on the
October 30, 1992
March 7, 1995
July 19, 1994
May 17, 1995
October 3, 1994
August 30, 1995
January 5, 1995
October 25, 1995
December 1, 1995
See Response to Letters Rogatory from Ambassador of
Guatemala Certified by the United States District Court for the
Western District of Kentucky on May 1, 1991 (including testimony of
Sister Ortiz dated January 31 and March 18, 1991 and other
See, e.g., April 29, 1991 Letter from Paul Soreff to
President Serrano; April 5, 1991 Letter from Thomas F. Stroock,
Ambassador for the United States, to President Serrano; July 20,
1990 Letter from Paul Soreff to President Cerezo.
See September 23, 1991 Letter from Paul Soreff to
Special Prosecutor Beltranena; September 26, 1991 Letter from
Special Prosecutor Beltranena to Paul Soreff; October 4, October 31
and December, 1991 Letters from Paul Soreff to Special Prosecutor
See Testimony of Sister Ortiz Provided on April 7,
1992; Proceeding for Identification of Photographs and Preparation
of Electronic Sketches of March 22, 1993; Proceeding for Preparation
of Electronic Sketches and Judicial Recognition Proceeding of March
23, 1993; Judicial Recognition Proceeding of March 24, 1993;
Questioning Proceeding of March 25, 1993; Judicial Recognition
Proceeding of January 26, 1994.
See Report prepared by Annabella Valdez Gutiérrez, a
prosecutor assigned to the case in Guatemala, March 18, 1994
(referring to Dr. Alcare's examination) [hereinafter referred to as
the Valdez Gutiérrez Report]; Report prepared by Investigator West,
February 4, 1994 (also referring to Dr. Alcare's examination)
[hereinafter referred to as the West Report].
On October 23, 1995, the Commission asked the Government to
provide Dr. Alcare's report concerning his examination of Sister
Ortiz before she left Guatemala and Dr. Alcare's testimony in the
domestic case. The
Government has not provided that information despite the fact that
Article 48(1)(e) of the Convention provides that the Commission may
request a state to provide information relevant to a case.
The record does contain a letter from Sister Ortiz's
psychiatrist detailing Sister Ortiz's reaction to her torture and
rape and explaining why it is difficult for her to provide further
evidence or information about the rape.
November 28, 1995 Letter from Mary R. Fabri, Psy.D. to
In its October 23, 1995 communication, the Commission
requested that the Government provide it with each police report
that had been prepared in relation to the case.
However, the Government has failed to provide this
According to the Government, this report was dated July 8,
1991 and was prepared by the administration of the National Police
Department for Sacatepéquez. However,
the Government has not provided the Commission with a copy of that
report despite the Commission's request for all police reports
prepared in relation to the case.
See 1991 Annual Report of the Inter-American
Commission on Human Rights at 221, OEA/Ser.L/V/II.81/Doc. 6 rev. 1,
February 14, 1992 (hereinafter "1991 Annual Report");
Statement of Phillip Berryman at 7; Statement of Allan Nairn at
See 1990-1991 Annual Report of the Inter-American
Commission on Human Rights at 449, OEA/Ser.L/V/II.79, Doc. 12 rev.
1, February 22, 1991; 1991 Annual Report at 210, OEA/Ser.L/V/II.81/Doc.
6 rev. 1, February 14, 1992; Fourth Report at 44, 46, 92-94;
Statement of Allan Nairn at 16-17; Statement of Anne Manuel,
Associate Director of Human Rights Watch at 19.
See Response to Letters Rogatory from Ambassador of
Guatemala Certified by the United States District Court for the
Western District of Kentucky on May 1, 1991 (including testimony of
Sister Ortiz dated January 31 and March 18, 1991 and other
According to information submitted by the Government, the
members of the Special Investigation Group were to testify on May
16, 1995. The Commission requested a copy of this testimony in its
October 23, 1995 communication, but the Government has failed to
provide that information.
In its October 23, 1995 communication, the Commission asked
the Government to provide specific information about the various
prosecutors that had worked with the case, but the Government has
failed to provide that information.
In its October 23, 1995 communication, the Commission asked
the Government to provide a copy of the report prepared by Special
Prosecutor Linares. The
Government has failed to provide that information.
See "American Nun Testifies to Abduction, Torture
by Guatemalan Security Forces," Washington Post, April 8, 1992;
"Monja Dianna Ortiz declarará en juzgado el próximo martes",
Siglo Veintiuno, April 3, 1992; "Comenta la próxima visita de
Diana Ortiz", Prensa Libre, April 5, 1992; Linares' Published
Declarations of March 1, 1992, February 20, 1992, and April 8, 1992.
The Commission also notes that the public statements made by
Special Prosecutor Linares were prohibited by the Criminal Procedure
of Guatemala which was applicable at the time.
That Code provided that no government official or private
person may expose "the reserve or the confidentiality of the
See Guatemalan Code of Criminal Procedure, Art. 309.
The Government of Guatemala has cited the confidentiality of
the investigative proceeding as an argument in cases before this
Advisory Opinion OC-13/93 of July 16, 1993, Certain
Attributes of the Inter-American Commission on Human Rights (Arts.
41, 42, 46, 47, 50 and 51 of the American Convention on Human
Rights), par. 50.