REPORT Nº 53/96
December 6, 1996
On September 24, 1982, the Inter-American Commission on Human
Rights (the "Commission") received a communication denouncing
the alleged abduction and disappearance of Dr. Francisco José Antonio
Pratdesaba Barillas by Guatemalan State agents.
Dr. Pratdesaba Barillas, a Guatemalan citizen, was a surgeon and
Director of the San Marcos National Hospital and of a private sanitarium
he owned and from whence, the complaint stated, he was abducted.
According to the complaint, on October 1, 1981, at 1:00 p.m., Dr.
Francisco José Antonio Pratdesaba Barillas was abducted by members of
the Guatemalan National Army at the facilities of the private sanitarium
he headed. He was taken
away by the abductors in his own vehicle, a light yellow 1982 Ford
Fairmont. The complaint
states that Dr. Pratdesaba Barillas was confined at the military base at
Quetzaltenango; he was later taken to a military outpost in San Rafael
Pie de la Cuesta, Department of San Marcos; he was then held at the
headquarters of the Military Police on the Berlín de Coatepeque Ranch,
Department of Quetzaltenango. The
last place the petitioners learned he was being held was the Rafael
Carrera Military Base in Zacapa, Department of Zacapa.
He was later seen by witnesses in December of 1981, in Guatemala
City, in a private vehicle, in the custody of armed men.
The petitioners state that eyewitnesses saw Dr. Pratdesaba
Barilla's car in the possession of persons from the Fifth Military Zone.
The complaint contends that Dr. Francisco José Antonio
Pratdesaba Barillas is still disappeared, and that the Guatemalan State
has neither investigated nor clarified the facts.
A criminal complaint of kidnapping was filed by Dr. Pratdesaba
Barillas's next-of-kin on October 5, 1981, to ascertain his whereabouts,
but the action taken on the complaint was flawed and ineffective.
PROCESSING BEFORE THE COMMISSION
The Commission began its processing of this complaint on October
7, 1982, and registered it as case 8074.
That same day, in accordance with the provisions of Article
48.1.a of the American Convention, the Commission forwarded to the
Guatemalan Government the pertinent parts of the complaint, requesting
that it supply information on the facts denounced therein, under the
terms of Article 34 of its Regulations (then Article 31).
Having received no response from the Guatemalan Government, the
Commission repeated its request for information on May 17, 1984 and gave
the Government another thirty days to reply, indicating the possibility
of the application of Article 42 (then Article 39) of the Commission's
Regulations whereby, in the absence of any response, the facts denounced
are presumed to be true.
On February 19, 1985, having received no information from the
Guatemalan Government, the Commission once again requested information
on the case, and gave the Government another thirty days, reminding it
again of the possible application of Article 42 of the Commission's
Regulations. Again, the
Commission received no response from the Guatemalan Government regarding
Thus far, the Government of Guatemala has supplied none of the
information requested by the Commission.
The conclusion drawn from the background information examined is
that the Commission is competent to entertain the complaint filed in the
instant case, since it alleges facts that would constitute violations of
the rights of Dr. Francisco José Antonio Pratdesaba Barillas recognized
in Articles 1, 3, 4, 5, 7, 8 and 25 of the American Convention on Human
Commission is persuaded that there is no reason to contend that the
complaint is manifestly groundless or out of order, or that it
substantially duplicates a petition already examined or one that is the
subject of a petition or communication pending in another international
proceeding for settlement. (Articles
46.1.c and 47.c,d of the Convention).
for exhaustion of domestic remedies, the Government of Guatemala has
never replied to any of the Commission's requests for information on
this matter. The purpose of
the rule requiring exhaustion of domestic remedies is to give the State
an opportunity to resolve the problem under its internal law before
being confronted with an international proceeding.
Therefore, given the Government's silence, the Commission
reasonably presumes that it is, by implication, waiving its right to
invoke the rule of exhaustion of domestic remedies.
from the implied waiver of the requirement of exhaustion under Article
46.1.a, the Commission believes that in the case of Dr. Francisco José
Antonio Pratdesaba Barillas, the remedies of domestic jurisdiction were
ineffective, did not provide the guarantees of due process and
unjustifiably failed to provide any ruling with respect to his person.
In addition, the petitioners were prevented from gaining full
access to those remedies. These
factual situations are contemplated in Article 46.2 of the Convention as
exceptions to the requirement of exhaustion of domestic remedies set
forth in Article 46.1.a.
effect, the conclusion drawn from the notes that the petitioners sent to
the Commission is that Guatemala's domestic remedies have been
unsuccessful in solving the disappearance of Dr. Francisco José Antonio
Pratdesaba Barillas. On
October 5, 1981, Dr. Pratdesaba Barillas' next-of-kin filed a criminal
complaint seeking an investigation of the crime of abduction and a
determination of his whereabouts. On
October 28, 1982, the presiding judge certified that the proceedings
were still in the examining phase.
The petitioners allege that the complaint filed was never
properly processed for an effective investigation that would shed light
on the facts denounced.
special petition was sent to the Minister of Government, who on May 13,
1982, ordered the Office of the Director General of the National Police,
through the Department of Technical Investigations, to conduct the
appropriate inquiries as quickly as possible.
This order to investigate was never carried out.
March 23, 1981, Dr. Pratdesaba Barillas' next-of-kin filed a written
request for a meeting with then President of the Republic, Efraín Ríos
Montt, who informed that the request for a meeting would not be granted.
then on, the next-of-kin of Dr. Pratdesaba Barillas began to receive
threats that they should desist from all efforts to find Dr. Pratdesaba
Barillas. This made it
impossible for Dr. Pratdesaba Barillas' family to file any other legal
remedies for clarification of the facts.
of the actions filed by the family of Dr. Pratdesaba Barillas was
effective in securing protection of the rights which were violated.
The Guatemalan Government did not take action on the criminal
complaint filed, seeking an efficient and adequate investigation based
on due process, that would ascertain the whereabouts of Dr. Pratdesaba
Barillas and the identity of those responsible for his disappearance.
This failure is consistent with a pattern of ineffective legal
remedies that the Commission found in Guatemala at the time the events
Government of Guatemala never disputed the abduction and disappearance
of Dr. Pratdesaba Barillas, or the fact that the abduction and
disappearance were perpetrated by agents of the State.
In fact, since the time the pertinent parts of the complaint were
first forwarded to the Government, and after repeated requests, it has
never supplied any information on the case, violating its international
obligation under Article 48 of the American Convention.
Therefore, the Commission considers that the presumption allowed
under Article 42 of its Regulations is in order.
Article 42 of the Commission's Regulations provides that the
facts reported in the petition whose pertinent parts have been
transmitted to the Government in reference shall be presumed to be true
if, during the time period set by the Commission, the Government has not
provided the pertinent information requested, as long as other evidence
does not lead to a different conclusion.
In this case, the information which exists does not contradict
the version of the facts alleged in the complaint but rather supports
that version of events.
fact that subsequent to the kidnapping, eyewitnesses saw Dr. Pratdesaba
Barillas' private car in the possession of members of the Fifth Military
Zone and the exact description of the various military installations in
which he was confined constitute important information which allow a
reasonable presumption that Dr. Pratdesaba Barillas was abducted by
agents of the State. Moreover,
from the manner and circumstances of Dr. Francisco José Antonio
Pratdesaba Barillas' abduction, the Commission can reasonably infer that
his abduction was the work of agents of the Guatemalan State, since the
very same methods were used in other abductions and unlawful detentions
in which State security agents were involved.
By the time the events denounced occurred, the Commission had
confirmed an "extraordinary number" of cases like that of Dr.
Pratdesaba Barillas, committed by security agents.
The abductions and unlawful detentions were generally done by
groups of heavily armed individuals who took their victims from their
places of work or their homes, and told no one of the reasons for the
alleged arrests, or where the victim would be taken.
The abductors operated in plain view and generally traveled in
Dr. Francisco José Antonio Pratdesaba Barillas was abducted in
precisely that fashion.
the foregoing, the Commission considers that it has been established
that on October 1, 1981, Dr. Francisco José Antonio Pratdesaba Barillas
was abducted by elements of the Guatemalan National Army and was held in
irregular detention in various military and police detention centers.
His whereabouts have remained unknown since the time of his
Conclusions on points of law
description of what happened to Dr. Francisco José Antonio Pratdesaba
Barillas on October 1, 1981, which forms the basis for this case, fits
the definition of "forced disappearance" which has been
developed by the jurisprudence of the Commission and the Inter-American
Court of Human Rights and which was incorporated into Article II of the
Inter-American Convention on Forced Disappearance of Persons.
Inter-American Court of Human Rights (the "Court" or the
"Inter-American Court") has held that "the forced
disappearance of human beings is a multiple and continuous violation of
many rights under the Convention that the State Parties are obligated to
respect and guarantee."
The preamble to the Inter-American Convention on Forced
Disappearance of Persons reaffirms that the forced disappearance of
persons "violates numerous non-derogable and essential human rights
enshrined in the American Convention on Human Rights, in the American
Declaration of the Rights and Duties of Man, and in the Universal
Declaration of Human Rights."
on these principles, the Commission examines the human rights that were
violated as a result of the forced disappearance of Dr. Francisco José
Antonio Pratdesaba Barillas.
The right to juridical personality
disappearance of Dr. Francisco José Antonio Pratdesaba Barillas
constitutes a violation of his right to recognition as a person before
the law protected by Article 3 of the American Convention on Human
Rights. When Dr. Pratdesaba
was disappeared by agents of the Government, he was necessarily placed
outside of and excluded from the juridical and institutional order of
the State. This exclusion
had the effect of denying recognition of the very existence of Mr.
Pratdesaba as a human being entitled to be recognized as such before the
The right to life
Francisco José Antonio Pratdesaba Barillas is still a disappeared
person. The Inter-American
Court has stated that: "[t]he practice of disappearances often involves secret
execution without trial, followed by concealment of the body to
eliminate any material evidence of the crime and to ensure the impunity
of those responsible. This
is a flagrant violation of the right to life, recognized in Article 4 of
Moreover, the context in which the disappearance occurred and the
fact that fourteen years later Dr. Pratdesaba Barillas is still
disappeared are grounds for the Commission to reasonably presume that
Dr. Pratdesaba Barillas was killed.
these reasons, the Commission concludes that the facts denounced have
violated Dr. Francisco José Antonio Pratdesaba Barillas' right to life,
recognized in Article 4 of the American Convention on Human Rights.
The right to humane treatment
Article 5 of the American Convention, every person has the right to have
his physical, mental, and moral integrity respected.
The facts denounced in the instant case constitute a violation of
Dr. Francisco José Antonio Pratdesaba Barillas' right to humane
Inter-American Court has found that, "prolonged isolation and
deprivation of communication are in themselves cruel and inhumane
treatment, harmful to the psychological and moral integrity of the
person and a violation of the right of any detainee to respect for his
inherent dignity as a human being.
Such treatment, therefore, violates Article 5 of the Convention,
which recognizes the right to the integrity of the person."
The right to personal liberty
for the violation of this right, the Inter-American Court has stated
that, "[t]he kidnapping of a person is an arbitrary deprivation of
liberty, an infringement of the detainee'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 of the
Convention which recognizes the right to personal liberty."
abduction and disappearance of Dr. Francisco José Antonio Pratdesaba
Barillas, which the Commission has established, constitute a violation
of his right to personal liberty, recognized in Article 7 of the
The right to due process of law and to judicial protection
Articles 8 and 25 of the American Convention every person has the right
to recourse to a competent court or tribunal for protection against acts
that violate his rights and the State has the obligation to provide the
minimum guarantees for the determination of those rights.
The domestic remedies of the Guatemalan State have not provided
what is essential to ensure these rights, thereby violating the American
25.1 introduces the principle recognized in the international law of
human rights whereby the instruments or procedural means to guarantee
those rights must be effective. It
is not sufficient that a State's legal system formally recognizes the
remedy in question; instead, it must develop the possibilities of an
effective remedy, substantiated in accordance with the rules of due
process of law.
domestic remedies of the Guatemalan State have not provided an adequate
and effective remedy that provides the minimum guarantees and a decision
as to the rights of Dr. Francisco José Antonio Pratdesaba Barillas, his
whereabouts, and the identity and responsibility of the authors of the
failure of the domestic remedies in the instant case not only justifies
a finding to the effect that the petitioners are not required to file
and exhaust such remedies, but also implicates the Guatemalan State in a
violation of the rights to judicial protection and to due process of
law, recognized in Articles 25 and 8 of the American Convention.
Obligation to respect and ensure rights
Guatemalan State has failed to honor its obligation under Article 1.1 of
the American Convention, to "respect the rights and freedoms
recognized [t]herein and to ensure to all persons subject to [its]
jurisdiction the free and full exercise of those rights and
the violations of the rights recognized in Articles 3, 4, 5, 7, 8 and 25
are imputable to it.
Article 1.1, the first obligation of the States Parties of the American
Convention is "to respect the rights and freedoms recognized"
what manner of exercise of public power violates the obligation to
respect rights under Article 1.1, the Inter-American Court has held
international law 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." It
further stated that "any violation of rights recognized by the
Convention carried out by an act of public authority or by persons who
use their position of authority is imputable to the State."
Commission has concluded that the abduction of Dr. Francisco José
Antonio Pratdesaba Barillas on October 1, 1981, his disappearance, and
the subsequent denial of justice in his case, which were violations of
rights recognized in Articles 3, 4, 5, 7, 8 and 25 of the Convention,
were perpetrated by Government agents using their position of authority.
Therefore, by the Court's definition, the Guatemalan State has
violated its obligation under Article 1.1 to respect the rights of Dr.
Francisco José Antonio Pratdesaba Barillas that are recognized in the
second obligation emanating from Article 1.1 is to ensure the free and
full exercise of the rights and freedoms recognized in the Convention.
"This obligation implies the duty of the State 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
Commission has concluded that exercise of the domestic remedies of the
Guatemalan State has failed to bring about an investigation into the
violation of rights of which Dr. Pratdesaba Barillas was victim; those
responsible have not been punished, and the consequences of the
violations have not been redressed.
Therefore, the Commission concludes that the Guatemalan State
also violated Article 1.1 because it failed to ensure to Dr. Francisco
José Antonio Pratdesaba Barillas and his family the exercise of their
TRANSMISSION OF REPORT 17/96 TO THE GOVERNMENT
Report 17/96 was approved by the Commission on April 30, 1996, during
its 92nd Regular Session, and was transmitted to the Government of
Guatemala on May 13, 1996, with a request that it provide information as
to the measures that had been taken to resolve the situation denounced
within a period of 60 days. At the same time, the Commission indicated that it placed
itself at the disposition of the parties for a friendly settlement,
based on respect for the human rights set forth in the American
Convention, and set a period of 30 days for the parties to advise
whether they were willing to participate in such a procedure.
As of the date of this report, the Commission has received no
response to its offer to facilitate a friendly settlement, and thus
considers that this proposal was not accepted.
Government's response, dated May 31, 1996, noted that the facts
concerned had occurred over a decade earlier, indicated that the current
Government did not have the information requested by the Commission at
hand, and requested that the Commission provide it with additional
information so that it could initiate an investigation.
The Government also requested that the processing of the case be
suspended until that information was provided.
June 18, 1996, the Commission provided the Government of Guatemala with
a copy of the pertinent information contained in the case file, and
granted it an extension of 70 days to provide information on the
measures adopted to resolve the situation dealt with in Report 17/96.
The Government of Guatemala has provided no further information
with respect to this case.
light of the information and observations provided above, the Commission
concludes that the Guatemalan State has violated Dr. Francisco José
Antonio Pratdesaba Barillas' rights to life, humane treatment, personal
liberty, due process of law and judicial protection, rights recognized,
respectively, in Articles 3, 4, 5, 7, 8 and 25 of the American
Convention on Human Rights, in relation to Article 1.1 thereof.
1 of the American Convention sets forth the undertaking of States
Parties first, to respect the rights and freedoms recognized, and
second, to ensure the free and full exercise of those rights.
The latter obligation refers to the state's duty to prevent,
investigate and punish human rights violations.
The consequence of this duty is the continuing responsibility of
the state to "attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation of
human rights." (Velásquez
Rodríguez Case, Judgment of July 29, 1988, para. 166.)
accordance with the foregoing analysis, the Commission recommends to the
State of Guatemala that:
It conduct an impartial and effective investigation of the facts
denounced that determines the fate of Dr. Francisco José Antonio
Pratdesaba Barillas, that establishes the identity of the authors of his
disappearance, and that leads to the submission of those responsible to
the appropriate judicial processes.
It adopt measures to make full reparation for the proven
violations, including taking steps to locate the remains of Dr.
Francisco José Antonio Pratdesaba Barillas; making the arrangements
necessary to facilitate the wishes of his family as to an appropriate
final resting place; and compensating his family members.
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.
 See Inter-American Court of Human Rights Cases:
Velásquez Rodríguez, Preliminary Objections, Judgment of
June 26, 1987, par. 88; Fairén Garbi and Solís Corrales,
Preliminary Objections, Judgment of June 26, 1987, par. 87; and Godínez
Cruz, Preliminary Objections, Judgment of June 26, 1987, par. 90.
The Inter-American Court of Human Rights has confirmed that,
"the silence of the accused or elusive or ambiguous answers on
its part may be interpreted as an acknowledgment of the truth of the
allegations, so long as the contrary is not indicated by the record
or is not compelled as a matter of law." Velásquez Rodríguez Case, Judgment of July 29, 1988, par.
 See Annual Report of the Inter-American Commission on Human
Rights 1985-1986, OEA/Ser.L/V/II.68, Doc. 8 rev. 1, 26 September
1986, p. 37-38; Annual Report of the Inter-American Commission on
Human Rights 1982-83, OEA/Ser.L/V/II.61, doc. 22 rev. 1, 27
September 1983, p. 46-48; Annual Report of the Inter-American
Commission on Human Rights 1980-81, OEA.Ser.L/V/II.54, doc. 9 rev.
1, 16 October 1981, p. 113-14; Velásquez Rodríguez Case, Judgment
of July 29, 1988, par. 147; Inter-American Convention on Forced
Disappearance of Persons, Article II.
The Inter-American Convention on Forced Disappearance of
Persons entered into force on March 28, 1996, after Argentina and
Panama deposited their instruments of ratification with the General
Secretariat of the OAS on February 28, 1996.
Guatemala has signed, but not yet ratified, that convention.
 See Velásquez Rodríguez Case, Judgment of July 29, 1988,
par. 155. The Court's
holding in this respect is supported by the declarations of other
international organs which confirm that the forced disappearance of
persons constitutes a multiple violation of rights recognized
e.g., Declaration on the Protection of All Persons from Enforced
Disappearance, United Nations General Assembly Resolution 47/133,
December 18, 1992, art. 1.1.
 See Declaration on the Protection of All Persons from Enforced
Disappearance, Art. 1.2, characterizing forced disappearance as
"a violation of the rules of international law guaranteeing, inter
alia, the right to recognition as a person before the law."
United Nations General Assembly Resolution 47/133, December
 See Inter-American Court of Human Rights Cases:
Velásquez Rodríguez, Preliminary Objections, Judgment of
June 26, 1987, par. 91; Fairén Garbi and Solís Corrales,
Preliminary Objections, Judgment of June 26, 1987, par. 90; and Godínez
Cruz, Preliminary Objections, Judgment of June 26, 1987, par. 93.