On June 14, 1983, the Inter-American Commission on Human Rights
(the "Commission") received a communication denouncing the
alleged kidnapping and disappearance of Ana Lucrecia Orellana Stormont
by agents of the Guatemalan State.
On June 23, 1983, the Commission received another communication
containing the same allegations. Mrs.
Ana Lucrecia Orellana Stormont, a 32 year-old Guatemalan citizen, was a
psychology professor at the San Carlos Medical School in Guatemala City.
According to the complaints, on June 6, 1983, at approximately
9:00 p.m., Ana Lucrecia Orellana Stormont was abducted in the vicinity
of the Hotel Plaza in Guatemala City by elements of the Guatemalan State
security forces. The
complaints state that after attending a meeting at the University of San
Carlos, Professor Orellana Stormont went to the Plaza Hotel to have
coffee with a friend. At
around 8:30 p.m., she took leave of her friend and headed for her home
in her private car. It was
while she was en route home that agents of the Guatemalan State abducted
Professor Orellana Stormont. The
complaints state that since then her whereabouts are unknown and no one
has any information about her car.
One of the communications sent to the Commission states that in
addition to Professor Orellana Stormont, another thirty-four people
affiliated with the University of San Carlos were also disappeared by
Guatemalan State agents during the same time period.
4. In a later
communication, the petitioners stated that according to information
provided to them by anonymous sources, Ana Lucrecia Orellana Stormont
was being held at the Matamoros Central Garrison in Zone 1 of Guatemala
City and that she was last seen there on September 22, 1983.
They further stated that Professor Orellana Stormont was
tortured. One of the
torture methods used was to cover her head with a hood sprayed with
insecticide dust, knowing that as an asthmatic, this torture method
would bring on asthmatic attacks. She
almost died in one of these attacks.
The complaints also contend that Ana Lucrecia Orellana Stormont
is still disappeared, and that the Guatemalan State has neither
investigated nor clarified the facts.
On June 8, 1983, the family of Professor Orellana Stormont filed
a criminal complaint with the National Police for her abduction and
disappearance. However, the complaint was never processed in the sense of
conducting an effective investigation to solve the case.
III. PROCESSING WITH THE COMMISSION
The Commission began its processing of this complaint on June 14,
1983, and registered it as case 9120.
That same day, pursuant to 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
provide information on the subject matter of the communication, under
the terms of Article 34 of its Regulations (then Article 31).
When no reply from the Guatemalan Government was received, the
Commission reiterated its request on June 22, 1983.
On July 27, 1983, having received no information from the
Guatemalan Government, the Commission requested information on the case
once again, and also sent the pertinent parts of a communication
received from the petitioners dated June 23, 1983.
September 29, 1983, the petitioners supplied additional information on
the case. On November 2 of
that year, the Commission forwarded to the Guatemalan Government the
pertinent parts of that information and repeated its previous requests. It gave the Government thirty days in which to reply, while
indicating the possibility of application of Article 42 (then Article
39) of the Regulations of the Commission, whereby the facts denounced
are presumed true if no reply is received.
no information was received from the Guatemalan Government, on June 19,
1984, the Commission once again requested information on the case,
invoking Article 48.a of the American Convention.
It gave the Government thirty days in which to reply and again
reminded it of the possible application of Article 42 of the
August 1, 1985, given the fact that the Guatemalan Government never
replied, the Commission repeated its request and warned the Government
once again of the application of Article 42 of its Regulations.
Again, the Commission never received any response from the
Guatemalan Government with regard to this case.
date, the Government of Guatemala has provided none of the information
requested by the Commission.
the background information examined here, it is clear that this
Commission is competent to entertain the complaints filed in the instant
case, since they allege facts that would constitute violations of the
rights of Ana Lucrecia Orellana Stormont, recognized in Articles 1, 3,
4, 5, 7, 8 and 25 of the American Convention on Human Rights.
Commission considers that there are no grounds to allege that the
complaint is manifestly groundless or obviously out of order nor that it
is substantially the same as one previously studied by the Commission or
pending settlement in another international organization.
(Articles 46.1.c and 47.c,d of the American Convention).
for exhaustion of domestic remedies, the Guatemalan Government has never
replied to any of the requests made by the Commission in its efforts to
obtain information on this issue. The
purpose of the rule requiring exhaustion of domestic remedies is to give
the state the opportunity to correct the problem in accordance with its
domestic laws, before being confronted with an international proceeding.
Therefore, given the Government's silence, the Commission assumes
that the State has, by implication, waived its right to invoke this rule
of exhaustion of domestic remedies.
from this waiver of the requirement stipulated in Article 46.1.a, the
Commission considers that in the case of Ana Lucrecia Orellana Stormont,
the remedies available under domestic law were ineffective, did not
provide the guarantees of due process and have unjustifiably failed to
render any decision in respect of her person.
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, from the notes that the petitioners sent to the Commission, it
is clear that Guatemala's internal remedies have been unsuccessful in
solving the disappearance of Ana Lucrecia Orellana Stormont. On June 8, 1982, relatives of Professor Orellana Stormont
filed a criminal complaint with the National Police to have the facts
investigated and her whereabouts determined.
However, no action was ever taken on this complaint in the sense
of conducting an investigation to clarify the facts and determine the
whereabouts of Ana Lucrecia Orellana Stormont.
the hope of finding Professor Orellana Stormont alive, on June 20, 1983,
the petitioners published an appeal in a newspaper called the "Prensa
Libre" seeking information about Professor Orellana Stormont.
The University of San Carlos arranged for a similar published
appeal, which came out on June 23 of that year.
Neither of these steps yielded any result.
steps taken by the family of Professor Orellana Stormont Lemus García
did not succeed in securing protection of the rights violated.
The Guatemalan State did not take action on the criminal
complaint in the sense of conducting an efficient and adequate
investigation based on due process, to determine the whereabouts of
Professor Orellana Stormont and the identity of those responsible for
her disappearance. This
fits a general pattern of ineffective legal remedies which the
Commission detected in Guatemala at the time the events in question
Guatemalan Government has never disputed the information reporting the
abduction and disappearance of Professor Orellana Stormont, nor the fact
that these actions were committed by State agents.
Indeed, since the time the pertinent parts of the complaint were
forwarded to the Government and despite repeated requests, the
Government has never provided any information in connection with the
case, and has thereby failed to honor its international obligation under
Article 48 of the American Convention.
Therefore, the Commission believes that the presumption of truth
provided for under Article 42 of its Regulations applies in the instant
case. 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
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.
associated with the university world at the time the events occurred
were subjected to constant harassment by agents of the State,
and there exists evidence in the record that Professor Orellana Stormont
was one of a group of thirty-four persons affiliated with the University
of San Carlos who were disappeared by agents of the State during the
same time period. Given
these facts, the conclusion is that Ana Lucrecia Orellana Stormont was
abducted and disappeared by elements of the Guatemalan State.
The description of the detention center in which she was held as
a military installation is further proof that Professor Orellana
Stormont was abducted by State agents.
from the manner and characteristics of Professor Orellana Stormont's
abduction, the Commission can reasonably infer that the detention was
the work of agents of the Guatemalan State, since those were the very
same methods used in other abductions and unlawful detentions in which
State security agents were involved.
By the time the events in question occurred, the Commission had
confirmed the existence of an "extraordinary number" of cases
like that of Professor Orellana Stormont, involving illegal acts
committed by security agents.
The abductions and unlawful detentions were generally perpetrated
by groups of heavily armed individuals who seized their victims on
public streets, and informed no one of either the reasons for the
alleged arrest or the detention facility to which the victim was to be
taken. The kidnappers
worked in plain view and generally traveled in private vehicles.
Ana Lucrecia Orellana Stormont was abducted in precisely this
on the foregoing, the Commission concludes that on June 6, 1983, Ana
Lucrecia Orellana Stormont was abducted by elements of the Guatemalan
State security forces. Since
then her whereabouts are unknown. The
Commission further concludes that Ana Lucrecia Orellana Stormont was
held in a military installation where she was tortured.
Conclusions on points of law
fate suffered by Ana Lucrecia Orellana Stormont on June 6, 1983, 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 States 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 Ana Lucrecia
The right to juridical personality
disappearance of Ana Lucrecia Orellana Stormont constitutes a violation
of her right to recognition as a person before the law protected by
Article 3 of the American Convention on Human Rights.
When Professor Orellana Stormont was disappeared by agents of the
Government, she 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 Professor Orellana Stormont as a human being entitled
to be recognized as such before the law.
The right to life
Orellana Stormont is still a disappeared person. The Inter-American Court of Human Rights has ruled the
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."
Moreover, the context in which the disappearance occurred and the
fact that thirteen years later the victim is still a disappeared person
allow one to reasonably conclude that Ana Lucrecia Orellana Stormont was
these reasons, the Commission concludes that the facts denounced
constitute a violation of her 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 Ana Lucrecia Orellana Stormont's right to humane treatment.
effect, the Commission has concluded that Professor Orellana Stormont
was tortured and that one of the torture methods used was to cover her
head with a hood sprayed with insecticide, knowing that because she was
an asthmatic, this would bring on asthmatic attacks.
On one occasion, one such attack almost killed her. This treatment constitutes a violation of Ana Lucrecia
Orellana Stormont's right to humane treatment.
the Inter-American Court has stated 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 every 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
Inter-American Court has held the following with regard to violations of
this right: "The
kidnapping of a person is an arbitrary deprivation of liberty, and an
infringement of the detainee's right to be taken without delay before a
judge and to invoke the proper procedures to review the legality of the
arrest, all in violation of Article 7 of the Convention which recognizes
the right to personal liberty."
kidnapping and disappearance of Ana Lucrecia Orellana Stormont, which
the Commission has confirmed, constitute a violation of the right to
personal liberty, recognized in Article 7 of the American Convention.
The right to a fair trial and the right to judicial protection
8 and 25 of the American Convention establish that everyone has the
right to recourse to a competent court or tribunal for protection
against acts that violate his fundamental rights and that the state has
the duty to provide the minimum guarantees for the determination of
one's rights. The domestic
remedies of the Guatemalan State have not provided what is necessary to
fulfill these rights and are therefore in violation of the American
25.1 embodies the principle recognized in the international law of human
rights whereby the instruments or procedural means intended to safeguard
those rights must be effective. It
is not sufficient that a state's legal system formally recognize the
remedy in question; instead, it has an obligation to provide effective
judicial remedies, remedies that must be substantiated in accordance
with the rules of due process of law.
internal remedies of the Guatemalan State have not provided adequate and
effective recourse that would fulfill the minimum guarantees and render
a decision regarding the rights of Ana Lucrecia Orellana Stormont,
establishing her whereabouts and determining the identity and the
responsibility of the authors of her kidnapping.
failure of the domestic remedies in the instant case not only justifies
a finding that the petitioners are not required to file and
exhaust those remedies; it also implicates the Guatemalan State in a
violation of the rights to a fair trial and judicial protection,
recognized in Articles 8 and 25 of the American Convention.
Obligation to respect and ensure rights
Guatemalan State has not complied with 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
freedoms." Therefore, it is responsible for violations of the rights
upheld in Articles 3, 4, 5, 7, 8 and 25 of said Convention.
Article 1.1 the first obligation of a State Party to the American
Convention is to respect the rights and freedoms recognized therein.
determine what manner of the exercise of public power violates the
obligation to respect rights, stipulated in Article 1.1, the
Inter-American Court has ruled that, "under 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 has further held 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
Commission has concluded that the abduction of Ana Lucrecia Orellana
Stormont on June 6, 1983, her disappearance, and the subsequent denial
of justice, all in violation 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, the Guatemalan State has violated its obligation under
Article 1.1 to respect the rights of Ana Lucrecia Orellana Stormont
recognized in the American Convention.
second obligation emanating from Article 1.1 is to "ensure"
the full and free exercise of the rights and freedoms recognized by the
obligation implies the duty of the States Parties to organize the
governmental apparatus and, in general, all the structure 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 the Guatemalan State's domestic remedies
have failed to investigate the violations to Professor Orellana
Stormont's rights, those responsible have not been punished, and the
consequences of those violations have not been redressed.
Therefore, the Commission concludes that the Guatemalan State
also violated Article 1.1 because it failed to ensure to Ana Lucrecia
Orellana Stormont and her family the free and full exercise of their
TRANSMISSION OF REPORT 20/96 TO THE GOVERNMENT
Report 20/96 was approved by the Commission on April 30, 1996, during
its 92nd Regular Session, and was transmitted to the Government of
Guatemala on May 31, 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 informed the parties that it placed itself
at their disposal 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.
means of a note dated July 22, 1996, the Government of Guatemala
requested that the period within which it was to provide its response to
the Commission be extended by 60 days, given that various State
institutions were in the process of gathering relevant information.
In a note of July 31, 1996, the Commission informed the
Government that it had been granted an additional 70 days to provide
information as to the measures it had taken.
The Commission also transmitted to the Government copies of
pertinent documents from the case file for its information.
Government's response, dated October 11, 1996, stated with respect to
the question of State responsibility:
that the nature of the present case reviews special
characteristics of the social conditions and prevailing policies during
the time period during which the facts occurred.
While the identification of the person or persons responsible has
not been judicially determined, the State of Guatemala is prevented from
Government further indicated that it had requested, through the
Presidential Coordinating Commission of Executive Policy in Human Rights
Matters, that the Attorney General's Office carry out an appropriate
investigation of the facts denounced, the results of which would be
communicated "immediately' to the Commission.
Finally, the response noted with respect to the question of
Locating Miss Orellana Stormont is of fundamental interest to the
State, for reasons of humanity, as well as for the proof destined to
resolve the case. However,
any pronouncement or decision in that respect, should be the result of
the work of the organs of the State with competence in these matters....
Government has provided no further information with respect to this
the fact that the individuals responsible for the disappearance have not
been identified through a judicial process in no way vitiates the
responsibility of the State of Guatemala.
To the contrary, as the foregoing analysis indicates, the State
is responsible both for having failed to respect the rights of the
victim, as well as for having failed to adequately and effectively
respond to the violations at issue.
light of the information and observations provided above, the Commission
finds that the Guatemalan State has violated Ana Lucrecia Orellana
Stormont's rights to life, to humane treatment, to personal liberty, to
due process of law and to judicial protection, 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 Ana Lucrecia Orellana Stormont,
that establishes the identity of the authors of her disappearance, and
that leads to the submission of those responsible to the appropriate
It adopt measures to make full reparation for the proven
violations, including taking steps to locate the remains of Ana Lucrecia
Orellana Stormont; making the arrangements necessary to facilitate the
wishes of her family as to an appropriate final resting place; and
compensating her family members.
54. To 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; 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 1985-86, 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 Human Rights 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 ratified this 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.