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OEA/Ser.L/V/II.98
REPORT
Nº 22/98 CASE
11.275 FRANCISCO
GUARCAS CIPRIANO GUATEMALA March
2, 1998
I.
BACKGROUND
The Facts Alld
1. On
March 7, 1994, the Inter-American Commission on Human Rights (hereinafter
"Commission") received a communication denouncing the October 19, 1993
disappearance of Francisco Guarcas Cipriano, a member of the Grupo de Apoyo
Mutuo (GAM) and a native of the Canton Semejá in Chichicastenango.
A member of the GAM reported having seen Mr. Guarcas that day, at
approximately 20:00 hours, near the bus terminal in Zone 4 of Guatemala City,
accompanied by four men -- Civil Self-defense Patrol (PAC) collaborators and
members of the G-2 branch of army intelligence. The petitioners alleged that the men had tricked Mr. Guarcas
into going with them by inviting him to a party.
He has neither been seen nor heard from since that time.
At the time of his disappearance, Mr. Guarcas was 38 years old and the
father of seven children.
2. The
petitioners reported that, some days prior to his disappearance, Mr. Guarcas had
decided to renounce his service in the Civil Self-Defense Patrols (PAC's).
Thereafter, he had received numerous threats. Additionally members of the armed forces had visited various
members of the local community to pressure them to return to PAC service.
The petitioners allege that Mr. Guarcas was kidnapped by Miguel Xiloj
Mejia, a member of the PACs and the G-2 intelligence service of the armed
forces, who operated in the Canton of Semejá controlling the local population
and obliging them to perform PAC service.
3. Family
members searched for Mr. Guarcas in hospitals and in various detention centers,
without any success. The
petitioners attached copies of: a writ of exhibición personal (a form of
habeas corpus), dated October 29, 1993, filed on behalf of Mr. Guarcas
before the First Court of First Instance, Criminal Branch, by the Grupo de Apoyo
Mutuo, registered as received by the Secretariat of the Supreme Court of
Justice; a writ of habeas corpus, dated November 3, 1993, filed before
the Second Judge of First Criminal Instance, and registered as received; and a
complaint dated November 4, 1993, filed by the victim's son with the Office of
the Ombudsman for Human Rights.
II.
PROCESSING BEFORE THE COMMISSION
4. The
Commission opened Case 11.275 on March 18, 1994, and transmitted the pertinent
parts of the petition to the Government of Guatemala by means of a note of that
date, with a response requested within 90 days.
5. By
means of a note dated August 5, 1994, the Commission reiterated its request for
information, noting that it would otherwise have to consider applying Article 42
of its Regulations, which allows for certain factual presumptions to be made
absent any response from the State concerned.
6. On
August 22, 1994, the State presented a brief response to the Commission's
request for information, indicating that the results of its investigations
coincided with the petition received. The
State indicated that the GAM had filed a writ of habeas
corpus before the Second Court of First Criminal Instance of
Sentencing in the Department of Guatemala, dated November 3, 1993, which had
failed to produce positive results. On
February 22, 1994, the Auxiliary Agent of the Public Ministry in the Department
of El Quiché had informed the pertinent authorities that the records in his
jurisdiction disclosed no pending criminal process concerning the disappearance
of Francisco Guarcas Cipriano. This
information was transmitted to the petitioners on September 16, 1994, with any
observations in response requested within 45 days.
7. On
January 6, 1995, the Commission received a communication from the petitioners to
the effect that another non-governmental human rights organization would
henceforth be acting as co-petitioner in the case.
8. On
January 31, 1995, the Commission directed a letter to the Government requesting
specific information as to what if any measures of investigation had been
initiated in the matter, what if any declarations and testimony had been taken,
and what if any measures had been taken in response to the filing of certain
actions by the petitioners.
9. The
petitioners' observations on the Government's response were received on May 11,
1995, indicating that the relevant domestic remedy in the case of a
disappearance, namely habeas corpus, had been invoked.
However, neither the writ interposed on October 29, 1993, nor that filed
on November 3, 1993 had been resolved. Family
members had then filed a criminal complaint before the First Court of First
Criminal Instance of Sentencing on June 20, 1994, registered as case C-486-94.
On June 27, 1994, Judge Emilio Noriega Estrada had ordered the Director
of the National Police to investigate the disappearance and possible murder of
Mr. Guarcas. Family members had again denounced the disappearance before
the Public Ministry on September 12, 1994.
The petitioners reported that these measures had produced no positive
results. They also provided
information concerning the links between the Guatemalan armed forces and the
PAC's, and the reported role of the latter in pressuring individuals to perform
PAC service and intimidating those who wished to renounce it. The petitioners alleged that the facts denounced constituted
violations of Articles 4, 5, 7, 25 and 1.1 of the American Convention on Human
Rights (hereinafter "American Convention").
These observations were transmitted to the State in a note of May 16,
1995, with any information in response requested within 30 days.
10. The
Government of Guatemala submitted its response to the petitioners' observations
on June 19, 1995. The Government
indicated that domestic remedies had not been exhausted, and that the relevant
authorities were carrying out all the measures of investigation available under
the law. Family members of the
victim had exercised their right to invoke domestic remedies without hindrance,
and the nature of the outcome as negative or positive did not discount the
validity of the process itself. They
reported that writ of habeas corpus interposed before the Supreme Court
had been transmitted to the Fifth Court of First Instance, where it had been
dismissed. A writ interposed by the
Office of the Ombudsman for Human Rights before the Court of Peace on Duty on
January 20, 1994 had been transmitted to the Fifth Court of First Criminal
Instance, where the result was negative. The
authorities had processed the writs as required, and received the necessary
collaboration from the functionaries concerned.
The State asserted that the case should not be admitted by the Commission
because the domestic investigation had not been exhausted.
This response was submitted to the petitioners in a note of July 19,
1995, with observations in response requested within 45 days.
11. The
petitioners submitted observations on the above response on September 25, 1995,
reiterating that the appropriate domestic remedy had been invoked to no avail.
They linked the disappearance of Mr. Guarcas to disappearances carried
out in Guatemala during the time period in question, and specifically to
reported threats and reprisals by PAC members against individuals who renounced
service in the patrols. These
observations were transmitted to the Government of Guatemala on October 17,
1995, with any response requested within 30 days.
12. On
November 7, 1995, the Government submitted additional observations.
The Government indicated that domestic law provided for a special
recourse of averiguación when habeas corpus proceedings had
failed to uncover the whereabouts of an individual, and provided for applicable
criminal remedies as well. A
criminal action had been initiated pursuant to the complaint filed by the
victim's son, known as cause 486-93. The
matter, identified as file 868-95, was being investigated by the designated
Auxiliary Prosecutor of the Public Ministry.
On October 25, 1995, the latter had reiterated a request to the National
Police to designate agents to investigate the matter.
The accused had provided a declaration denying the charges. The State indicated that the criminal action was in the
investigation stage, that the appropriate measures were being taken, and that
applicable domestic remedies had not been exhausted. This information was transmitted to the petitioners on
November 28, 1995, with any response requested within 45 days.
13. The
petitioners responded on January 16, 1996, recounting that a total of three
writs of habeas corpus had been interposed in favor of Mr. Guarcas (two
by the petitioners and one by the Office of the Ombudsman for Human Rights), as
well as the denunciation filed before the Public Ministry and the criminal
complaint filed before the First Court of First Criminal Instance of Sentencing. They asserted that none had produced a positive result.
They indicated that the remedy of averiguación to which the
Government had referred was of an optional nature.
This response was transmitted to the Government on January 24, 1996, with
all observations and information requested within 30 days.
14. On
February 23, 1996, the Government provided an additional report on the case,
indicating that the recourse of averiguación was provided for as a
matter of domestic law and was not "optional."
With respect to the criminal process, the Government indicated that the
family members of the victim had failed to provide declarations, and failed to
collaborate with the authorities, which presented a serious obstacle to the
investigation. The accused had
denied the charges in his declaration of October 25, 1995.
The complainant had been cited to appear before the Metropolitan
Prosecutor's Office on November 14, 1995, but had failed to do so. That same day, the First Court of First Criminal Instance of
the Department of Guatemala had requested that the National Police provide the
results of their investigation. This
information was transmitted to the petitioners on March 22, 1996, with any
response requested within 45 days.
15. On May
14, 1996, the petitioners requested an additional period of time to provide a
response. An extension of 30 days was granted by note of May 15, 1996.
16. On June
13, 1996, the petitioners provided their observations to the foregoing response
of the Government, reiterating their previously stated position with respect to
the exhaustion of domestic remedies. They
emphasized that, by law, the Public Ministry is required to pursue the criminal
action initiated pursuant to the complaint filed by the victim's family.
In addition to the violations of the American Convention alleged above,
the petitioners asserted that the facts constitute a violation of Article 8 as
well. This submission was
transmitted to the Government on June 20, 1996, with any response requested
within 30 days.
17. On July
18, 1996, the Government informed the Commission that the Attorney General of
Guatemala had been requested to provide information, which would be forwarded as
soon as it had been presented. By
note of July 29, 1996, the Commission indicated that it had granted a 30 day
extension for the receipt of that information.
18. On
August 26, 1996, the Government submitted a report on the case, referring to
investigation 868-95 before the Public Ministry.
The Government noted that the cause under investigation had been
initiated pursuant to the criminal complaint filed by the victim's son in
February of 1994, assigned cause number 486-93, and had been somewhat
"interrupted" due to the entry into force of the new Code of Criminal
Procedure. The most recent measures
taken included: March 22, 1996, Tomás Guarcas Pérez had appeared before the
Metropolitan Prosecutor's Office to sustain his accusation; April 11, 1996, the
declarations of two witnesses were taken, to the effect that they had not seen
the individuals who had taken Mr. Guarcas; on April 11, 1996, Manuel Guarcas
Cipriano appeared before the Metropolitan Prosecutor's Office to declare that
the accused had offered the victim's father Q. 15,000.00 to drop his efforts to
investigate his son's disappearance; on May 13, 1996, Tomás Guarcas Xiloj
provided a similar declaration, specifying that the accused had made the offer
on March 16, 1996. The declarants had offered to provide the Prosecutor with the
addresses of those accused. This
information was transmitted to the petitioners for their observations on
September 9, 1996, with a response requested within 45 days.
19. The
petitioner's response was submitted on October 28, 1996, reiterating that
domestic remedies had proven ineffective and unduly delayed.
This response was transmitted to the Government on December 18, 1996,
with any response requested within 30 days.
20. On March
7, 1997, the Government presented an additional report, reiterating that the
investigation remained ongoing, but indicating that sufficient proof to identify
the authors or prove the guilt of the accused had not been collected.
This report was transmitted to the petitioners on April 1, 1997, with any
response requested within 30 days.
21. On July
17, 1997, the petitioners submitted their final observations.
They recounted that witnesses had testified to the fact that Francisco
Guarcas Cipriano had been threatened by members of the PACs for having renounced
patrol service and for his affiliation with the GAM, and that witnesses had
affirmed that the victim was last seen in the company of PAC members.
The petitioners alleged that the facts denounced gave rise to violations
of Articles 1, 4, 7, 8, 16 and 25 of the American Convention.
In addition to their previous arguments, the petitioners indicated that
the kidnapping of Mr. Guarcas as a reprisal for his renunciation of PAC service
violated his right to freedom of association.
This submission was transmitted to the Government of Guatemala on August
26, 1997, with any response requested within 30 days.
22. By means
of a note dated September 22, 1997, the Government requested a 30 day extension
in order to provide information. The
Commission granted this request by means of a note of October 1, 1997.
23. On
October 16, 1997, the Government provided a brief submission of additional
information, reporting that on September 10, 1996, the First Judge of First
Criminal Instance, Narcoactivity and Crimes against the Environment had ordered
accused Miguel Xiloj Mejia to appear to provide his declaration in cause 486-94,
under the charge of the Fifth Official. However,
the process had remained inactive from September 13, 1996 until September 23,
1997, when the matter was reactivated with another citation to the accused to
appear on September 26, 1997. He
did not appear. On September 25,
1997, the Presidency of the Judicial Organism ordered the Fifth Official to
appear for an official hearing to establish responsibility for the period of
inactivity. On October 3, 1997, the
presiding judge issued an arrest warrant against accused Miguel Xiloj Mejia,
which remained pending. This
information was transmitted to the petitioners on November 26, 1997, with any
response requested within 30 days.
24. The
petitioners provided a brief additional response on January 8, 1997, reporting
that, pursuant to the period of inactivity acknowledged by the State, on April
9, 1997, the Sixth Court of First Criminal Instance, Narcoactivity and Crimes
against the Environment resolved that the investigation had produced
insufficient proof to order any precautionary measures against those accused.
The petitioners provided a copy of the resolution, which indicated a lack
of merit in the case on the basis that, while the disappearance of the victim
had been denounced, the declarants in the criminal process had not been precise.
While they had stated that the victim had been taken in a car, they had
not indicated the type of vehicle. The
petitioners reported that a final writ of habeas corpus had been
submitted on behalf of the victim on June 23, 1997.
III. THE
POSITIONS OF THE PARTIES
The Position of the Petitioners
25. The
petitioners maintain the State of Guatemala is responsible for the disappearance
of Francisco Guarcas Cipriano, and for its failure to respond with appropriate
measures to investigate and establish his whereabouts, and to submit those
responsible to the corresponding measures of prosecution and punishment, in
violation of Articles 4, 5, 7, 8, 16, 25 and 1.1 of the American Convention.
Mr. Guarcas disappeared on October 19, 1993, and his whereabouts and fate
remain unknown. The petitioners
allege that he was disappeared shortly after renouncing service in the PACs.
They note the role of the PACs during the time in question, and the
reprisals suffered by those who opposed them.
They indicate that witnesses had provided sworn statements attesting that
the victim had been threatened by members of the PACs as a result of renouncing
his service, and because of his affiliation with the GAM, and that he had last
been seen in the company of PAC members. They
indicate that one of those accused, Miguel Xiloj Mejía, was a PAC member and
member of army intelligence.
26. The
petitioners contend that the State failed to undertake an investigation designed
to establish the whereabouts or fate of Mr. Guarcas.
They contend that the remedy of habeas corpus was the principal
recourse to be invoked in the case of a disappearance as a matter of domestic
law, as well as for purposes of admissibility before the Commission. They assert that the habeas corpus writs filed on
behalf of the victim, on October 29, 1993, November 3, 1993, and June 23, 1997
produced no positive results. They
further indicate that the victim's family had denounced the disappearance before
the First Court of First Instance of Criminal Sentencing on June 20, 1994,
before the Public Ministry on September 12, 1994, and before the Ombudsman for
Human Rights on November 4, 1993 and June 1, 1995, without having obtained any
positive results. They maintain
that, once the initial writ of habeas corpus had been unsuccessful, the
Public Ministry and judiciary were charged with undertaking an investigation de
oficio, a duty they had failed to discharge.
The Position of the State
27. The
State maintains that the petitioners have failed to exhaust available domestic
remedies, and that the relevant authorities continue to effectuate the measures
of investigation available under the law. The
State reported that writ of habeas corpus interposed before the Supreme
Court had been transmitted to the Fifth Court of First Instance, where it had
been dismissed. They contend that
family members of the victim had exercised their right to invoke domestic
remedies without hindrance, and the nature of the outcome as negative or
positive did not discount the validity of the process itself. A writ interposed by the Office of the Ombudsman for Human
Rights before the Court of Peace on Duty on January 20, 1994 had been
transmitted to the Fifth Court of First Criminal Instance, where the result was
negative. The authorities had
processed the writs as required, and received the necessary collaboration from
the functionaries concerned. Further,
the State argues that the petitioners should have invoked the recourse of averiguación.
28. The
State acknowledges that cause 486-94 had been inactive from September 13, 1996
until September 23, 1997, when the matter was reactivated with a second citation
to the accused to appear before the court to provide his declaration.
That had been addressed, the State contends, given that on September 25,
1997, the Presidency of the Judicial Organism had ordered the Fifth Official to
appear for a hearing to establish responsibility for the period of inactivity.
On October 3, 1997, the presiding judge had issued an arrest warrant
against accused Miguel Xiloj Mejia, which remained pending as of the
Government's last report. The State
maintains that its judicial authorities remain seized of the criminal
investigation.
IV. CONSIDERATIONS
WITH RESPECT TO ADMISSIBILITY
29. The
Commission is competent to examine the subject matter of this complaint, as it
concerns alleged violations of Articles 1, 4, 5, 7, 8, 16 and 25 of the American
Convention. The Republic of Guatemala deposited its ratification of the
American Convention on May 25, 1978, and the Convention entered into force for
all Parties on July 18, 1978.
30. The
petition includes the information required by Article 32 of the Commission's
Regulations, and meets the conditions set forth in Article 46.1.c of the
American Convention and Article 39 of the Commission's Regulations, as it is
neither pending settlement in another international inter-governmental
proceeding, nor essentially duplicative of a petition pending or previously
considered by the Commission. The
petition was timely filed, as required by Article 46.1.b, given that the victim
allegedly disappeared on October 19, 1993, and the case was filed on March 7,
1994.
31. Article
46 of the American Convention specifies that, in order for a case to be
admitted, "remedies under domestic law [shall] have been pursued and
exhausted in accordance with generally recognized principles of international
law." This requirement exists
to ensure the state concerned the opportunity to resolve disputes within its own
legal framework.
32. The
petitioners contend that the remedy appropriate in the case of a forced
disappearance, the writ of habeas corpus, was invoked and exhausted.
To date, the Government has maintained that domestic remedies were
invoked but not exhausted. The
State contends that the writs of habeas corpus were processed and
discharged according to law. Being
obligations of means rather than results, the State asserts that the fact that
they were not successful in locating the victim does not negate their efficacy
as a remedy. Further, the State
contends that the victim's family invoked, but failed to fully avail themselves
of the remedy of a criminal investigation, as they failed to cooperate in the
proceedings. The Commission
observes that the submissions of the parties are in accord that more than one
writ of habeas corpus was filed, and that none produced information as to
the whereabouts or fate of the victim.
33. A writ
of habeas corpus would normally be the effective "means of finding a
person presumably detained by the authorities, of ascertaining whether he is
legally detained and, given the case, of obtaining his liberty."
Caballero Delgado and Santana Case, Preliminary Objections,
Judgment of January 21, 1994, Ser. C No. 17, para. 64, citing, Velásquez
Rodríguez Case, Judgment of July 29, 1988 (Merits), Ser. C No. 4, para. 65;
Godínez Cruz Case, Judgment of January 20, 1989 (Merits), Ser. C. No. 5,
para. 68; Fairén Garbi and Solís Corrales Case, Judgment of March 15,
1989 (Merits), Ser. C No. 6, para. 90. The
applicable domestic law of exhibición personal provides that, if the
person concerned is not located through that recourse, "the court de
oficio, will immediately order the investigation of the case, until it has
been completely clarified." Accordingly,
invocation of the remedy of averiguación would not be necessary.
For the purposes of admissibility in the present case, the Commission
finds that the petitioners invoked and exhausted the appropriate domestic remedy
designed to correspond to an alleged forced disappearance.
The Commission will turn to the substantive considerations with respect
to the adequacy and timeliness of the measures of investigation undertaken in
this case in its decision on the merits.
34. Taking
into account the foregoing analysis and conclusions,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, DECIDES:
A. To
declare the present case admissible.
B. To
transmit this report to the State of Guatemala and the petitioners.
C. To
place itself at the disposal of the parties for the purpose of reaching a
settlement based on respect for the human rights protected in the American
Convention; and invite the parties to indicate their disposition to initiate the
procedure of friendly settlement within a period of 30 days, counted as of the
date of transmission of the present report.
D. To
continue with the analysis of the merits of the case.
E. To
make this report public, and publish it in its Annual Report to the General
Assembly of the OAS. |