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MERITS (PUBLICATION) CASE 11.658 MARTÍN PELICÓ COXIC ET AL. GUATEMALA October 15, 2007
I. SUMMARY
1. On August 6, 1996, the Council of Runujel Junam Ethnic Communities (CERJ) and the International Law and Justice Center (CEJIL) (hereinafter “the petitioners”) lodged a petition against the Republic of Guatemala (hereinafter the “State of Guatemala,” “Guatemala,” or “the State”) regarding a presumed violation of the rights established in the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”).
2. According to the petition, on June 27, 1995, Martín Pelicó Coxic, (hereinafter “the victim”), a Mayan Indian, a human rights advocate, and an active member of the Council of Runujel Junam Ethnic Communities (CERJ), was arbitrarily executed by members of the Civil Self-Defense Patrols [Patrullas de Autodefensa Civil] (hereinafter the “PAC”). The petition also alleged that following the arbitrary execution of Mr. Pelicó, family members, witnesses, and prosecution attorneys received a series of threats, including death threats, from PAC members. They requested that precautionary measures be adopted to protect Mrs. Rosario Hernández Grave and Messrs. Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi.
3. The petitioners alleged that the State was responsible for violating the right to life, right to a fair trial, and right to judicial protection established in Articles 4, 5, 8, and 25 of the American Convention, to the detriment of Martín Pelicó Coxic, and Articles 5, 8, and 25 to the detriment of Rosario Hernández Grave, Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi; all of these articles are to be considered in relation to the general obligation of the State to respect and guarantee the rights enshrined in Article 1(1) of the Convention.
4. The State of Guatemala accepted the relevant institutional responsibility it incurred for failure to guarantee the physical security of Martín Pelicó Coxic, and regretted his disappearance (sic), which occurred in 1995. However, it has repeatedly contended that not all remedies under domestic law have been exhausted in this case, and that the State security forces have been pursuing action to arrest the persons accused.
5. The Commission declared the case admissible, and concluded that the State of Guatemala had violated Articles 4, 5, 8, and 25 of the Convention to the detriment of Martín Pelicó Coxic and his next of kin, and Articles 5, 8, and 25 of the Convention to the detriment of Mrs. Rosario Hernández Grave and Messrs. Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta y Rogelio Cánsi, all of these Articles to be considered in relation to Article 1(1) of the American Convention on Human Rights.
II. PROCEDURES OF THE COMMISSION
6. The Commission received the petition on August 6, 1996. The case was assigned number 11,658 and opened on August 7, 1996, in accordance with the Rules of Procedure in force on that date. The pertinent portions of the petition were transmitted to the State of Guatemala, which was asked to provide the information requested within a period of 90 days.
7. On August 23, 1996, the Commission requested that the State of Guatemala adopt precautionary measures to preserve the life and personal security of Rosario Hernández Grave, Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi, and it asked the State to report on the measures adopted and the results of same within 30 days.
8. The State’s response to the request to adopt provisional measures was received on October 1, 1996, and the pertinent portions of the response were forwarded to the petitioners on October 2, 1996.
9. On November 8, 1996, the Commission received the State’s response to the petition, which was transmitted to the petitioners, with a request that they send their observations within a period of 30 days. In a letter dated November 26, 1996, the petitioners submitted their observations, which were transferred to the State on January 14, 1997.
10. On February 25, 1997, the State sent its response to the petitioners’ observations, which was in turn submitted to the petitioners for comment on March 14, 1997, along with a request that they make any comments deemed appropriate within a period of 30 days.
11. In a letter dated August 26, 1997, the petitioners submitted their comments, which were transferred to the State on September 24, 1997. The State sent a letter with its comments on October 27, 1997.
12. On February 26, 1998, during the 98th session of the Commission, it held a hearing with representatives of both parties present, in which the petitioners provided additional information, which was transmitted to the State on May 4, 1998.
13. On June 4, 1998, the State sent additional information, which was transmitted to the petitioners on June 25, 1998, with the request that they send their observations within 30 days. The request was repeated on August 3, 1999. The petitioners submitted their comments in a letter dated August 13, 1999, and these comments were transmitted to the State on August 30, 1999.
14. In a letter dated September 30, 1999, the State sent additional information, which was forwarded to the petitioners on October 19, 1999, along with a request to present their observations within 30 days. On February 3, 2000, the petitioners sent additional information, which was transmitted to the State on February 23, 2000.
15. On March 22, 2000, the petitioners requested that the possibility of initiating a friendly settlement procedure be considered in this case. On March 24, 2000, the Commission placed itself at the disposal of the parties with a view to reaching a friendly settlement, in accordance with the provisions of Article 48(1)(f) of the Convention and Article 45(1) and (2) of its Rules of Procedure.
16. The State sent additional information in a letter dated May 3, 2000, but did not refer to its position on the possibility of a friendly settlement.
17. In a letter dated June 2, 2002, the petitioners submitted comments, and on October 1, the Commission sent them on to the State and asked it to submit its comments within a period of 60 days. On July 1, 2002, the Commission applied Article 37(3) of its Rules of Procedure, and requested the petitioners to submit observations on the merits, which they did on October 1, 2002. The State sent its observations on the subject in a letter dated December 2, 2002,
- Precautionary measures
18. The petitioners indicated in their report that during the court proceedings, both the family of Martín Pelicó Coxic and the witnesses and attorneys involved in the homicide case were the victims of death threats and acts of intimidation from the families of the defendants. On March 16, 1996, the Council of Runujel Junam Ethnic Communities (CERJ) filed a complaint with the United Nations Mission for Guatemala (MINUGUA), and in April of that year, the threats were also reported to the National Police and to the Office of the Prosecutor [Procuraduría] for Human Rights.
19. On August 23, 1996, the Commission granted precautionary measures for the protection of Rosario Hernández Grave and Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi.
III. POSITION OF THE PARTIES
A. Position of the petitioners
20. On August 6, 1999, the petitioners reported to the Commission the arbitrary execution of Martín Pelicó Coxic, and the death threats, harassment, and intimidation perpetrated against Mrs. Rosario Hernández Grave and Messrs. Manuel Hernández Ajbac, Manuel Mendoza Jolocomox, Jesús Chaperón Marroquín, Gustavo Vásquez Peralta, and Rogelio Cánsi, for whom precautionary measures were requested.
21. On the facts of the case, the petitioners reported that Martín Pelicó Coxic, an active member of the Council of Runujel Junam Ethnic Communities (CERJ) was executed extrajudicially on June 27, 1995. In the afternoon of that day, Mr. Pelicó accompanied his wife, Rosario Hernández Grave, on an errand in San Pedro Jocopilas. On the way, they met up with Pedro Acabal Chaperón, who invited him to go to Santa Cruz de El Quiché to do some work. That night, various persons saw Pedro Acabal Chaperón and Juan Chivalán Xam get out of a red car driven by Francisco Marroquín Vásquez. They picked up Martín Pelicó, and left him lying face down in the vicinity of his home. When his wife found him, she brought him into the house with the help of several neighbors. Pelicó had deep head wounds and bruises on other parts of his body, and he died moments later. On June 27, 1997, Mrs. Rosario Hernández filed a criminal complaint against Francisco Marroquín, Pedro Acabal, and Juan Chivalán, members of the Civil Self-Defense Patrols of San Pedro de Jocopilas, for the execution of her husband.[1]
22. With regard to the Civil Self-Defense Patrols, they indicated that they had been operating under the responsibility of the Defense Ministry since 1982, and that they were conceived as part of the “national security” policy and created under the de facto regime of General Efraín Ríos Montt, to counter the military action of groups of counter-insurgents. However, the power granted to these patrols went beyond purely military purposes, and they subjected the local people to heavy pressure to do as they told them. This pressure included physical and psychological violence, and has led to violations of the rights to life, liberty, and humane treatment of thousands of people, especially campesinos. The petitioners further stated that the structure of the PACs, their close relationship with the Army, which trains them and supplies them with weapons, their purpose to fight the guerrillas, the fact that they are under the authority of the military command, and their history of committing crimes with impunity all show that the PACs have always acted as agents of the Guatemalan State.
23. The petitioners further reported that during court proceedings, both the family of Martín Pelicó Coxic, as well as the witnesses and attorneys involved in this murder case were victims of death threats and acts of intimidation by the families of the accused. These threats intensified when the court proceedings were ordered closed on July 18, 1996.[2] In view of this situation, on March 16, 1996, the CERJ filed a complaint with the United Nations Mission for Guatemala (MINUGUA), and in April of that year the threats were also reported to the National Police and the Office of the Prosecutor for Human Rights.
24. With regard to admissibility arguments, the petitioners stated that domestic procedures had proven completely ineffective and that the courts had been biased in trying and punishing the persons responsible for the arbitrary execution of Martín Pelicó. There was also a premeditated, unjustified delay in handing down a decision in the case, and the steps required to detain the accused were not taken. Finally, there was a clear denial of justice through arbitrary acts by the court, which obstructed the proceedings and prevented them from developing normally and correctly. As a result of all these factors, the State failed to provide the victim’s next of kin with effective remedies. Various years went by after the murder of Martín Pelicó Coxic, and after the only person arrested for the crime was set free, because, according to the trial judge, the Ministerio Público [Office of Public Prosecutor] did not conduct a complete investigation that would have made it possible to support the accusation against Mr. Marroquín Vásquez. The petitioners, nevertheless, maintain that it is the obligation of the courts to conduct a serious investigation in the event of any situation in which human rights protected by the Convention have been violated. They are meant to take it on as their legal duty, directed to effectively determining the truth. They further stated that the other persons accused of having perpetrated the crime were fugitives from justice.
25. As regards the requirement of exhaustion of domestic remedies, the petitioners pointed out that said requirement is not meant to be understood as the need to mechanically carry out formal procedures, but rather that the reasonable possibility of obtaining a remedy is to be examined in each case. This is why a system of exceptions was established, in an effort to ensure that the right to allege failure to exhaust the remedies of domestic law, as grounds for declaring a petition inadmissible, cannot be used “to hold up or delay international action to assist a defenseless victim, until it would be futile.”
26. Martín Pelicó Coxic was executed extrajudicially by civil patrol agents on June 27, 1995. On that same day, his wife filed the relevant complaint with the justice of the peace of San Pedro Jocopilas. The preliminary investigation was initiated on the following day. Between July 3 and October 18, 1995, the three persons accused were detained. On November 10, 1995, they were all indicted. On March 11, 1996, the Ministerio Público requested that a trial be opened and announced the charges against the three defendants. From that time on, the administration of justice, under the jurisdiction of the Second Criminal Trial Court for Drug Activities and Crimes Against the Environment [Juzgado Segundo de Primera Instancia Penal Narcoactividad y Delitos Contra el Ambiente] of El Quiché, was characterized by unfounded and illegal decisions.
1) On July 18, the trial was declared provisionally closed, the preventive detention orders were revoked, and the accused were released, on the grounds that there was insufficient evidence presented during the trial, without any explanation or evaluation of that evidence or any arguments in support of its insufficiency; 2) on appeal, the Ninth Chamber of the Court of Appeals of Antigua Guatemala revoked the previous ruling and ordered that the provisional closing of the trial was null and void as of October 22, 1996, which meant that the Judge of the Second Trial Court had to issue a new arrest warrant against the accused; however, in open disregard of the decision of the Ninth Chamber of the Court of Appeals, the judge issued a decision on November 14, 1996 maintaining his prior decision to revoke the judgment of November 18, 1995, which ordered the preventive detention and indictment of the accused.; 3) The prosecution filed an appeal [Recurso de Reposición] to reverse the decision of the Second Trial Court of Quiché, but on December 30, the judicial authority declared the appeal filed to be without merit, and, with the same failure to present any supporting arguments as before, stated that based on a careful study of the case files and the evidence gathered, he was certain that the accused did not participate in the acts, as alleged; 4) On January 21, 1997, the prosecuting attorneys presented a request to amend the Criminal Proceedings, as established in Article 67 of the Ley del Organismo Judicial, since it was evident that the basic official procedures had been violated in this trial. On January 22, 1997, the Judge of the Second Criminal Trial Court of El Quiché denied the petition presented, on the grounds that it was not an institution contained in the Code of Criminal Procedure; 5) It was not until May 14, 1997, that the Second Criminal Trial Court complied with the decision issued by the Ninth Court of Appeal in October 1996, in which revocation of the judgment provisionally closing the trial was confirmed. Subsequently, the presumed perpetrators were issued summons, and when they failed to appear, they were declared in contempt of court and ordered to be detained and held on bond; 6) Two years later, on March 20, 1999, Marroquín Vásquez was captured, tried, and acquitted in a judgment issued on May 2, 2000 by the Sentencing Court of El Quiché, on the grounds that the prosecution did not present conclusive evidence of the criminal liability of the accused. According to the judge, “the prosecution (Ministerio Público) did not present any evidence, as it is required to do, that would support the charges against the accused.” To date, over 4 years later, legal action in the Quiché Courts against the other perpetrators of the murder of Martín Pelicó is at a standstill for the simple reason that the security forces (the Police) have not captured the persons accused of his death, the former members of the Civil Self-Defense Patrols, Juan Chivalán Xam and Pedro Acabal Chaperón. The accused remain free despite the fact that the court issued the relevant arrest warrants and they are still in effect. Until these persons are arrested, judicial action against them cannot proceed, since formal charges cannot be filed, not to mention a date set for the public trial.
27. They added in this regard that it is therefore appropriate to apply international protective mechanisms, since the exceptions stipulated in Article 46(2) (b) and (c) of the Convention, which exempt the petitioners from exhausting domestic remedies, apply in this case.
28. The petitioners contend that in view of their argument in favor of an exception to the rule of exhaustion of domestic remedies, and of the fact that the victims petitioned the Commission within a reasonable period of time after the events occurred, the petition is admissible from the standpoint of time of presentation.
29. As regards the arguments on the merits, they stated that the extrajudicial execution of Martín Pelicó Coxic was perpetrated by State agents, who have not been either tried or punished, and the threats made to the next of kin, the witnesses, and the attorneys of the next of kin are a flagrant violation of the provisions of the American Convention on Human Rights, which makes Guatemala responsible.
30. With respect to Articles 8 and 25 of the Convention, they stated that in this case criminal justice was sought so that the extrajudicial execution of Martín Pelicó Coxic would be investigated and the perpetrators punished. However, this did not happen. The following was apparent in the domestic proceedings: 1) failure to conduct a proper investigation; 2) arbitrary, unfounded, and biased judgments; 3) failure to proceed within a reasonable time, with judicial ineffectiveness as a corollary.
31. On the failure to conduct a proper investigation, they reported that during the investigative stage of the proceedings, few steps were taken to determine the facts and gather the necessary evidence to determine the identity of the perpetrators. As for investigative proceedings, during the court trial, only a post mortem certificate was recorded, an autopsy in which only the external condition of the corpse was noted along with a series of declarations. The proceeding did not meet the requirements of a serious, adequate investigation, and as a result access to justice was ineffective. With regard to the issue of arbitrary, unfounded, and biased judgments, the petitioners maintained that although initially the accused were arrested and deprived of their freedom, on July 18, 1996, the Second Trial Court issued a decision ordering the provisional closing of the proceeding, revocation of preventive detention, and the release of the accused. This action by the court was entirely arbitrary, since the judge did not indicate the grounds for his decision to close the proceeding, nor his reasons for determining that the criminal liability of the defendants was not proven, nor what evidence or arguments he used to nullify the copious existing evidence. In other words, the Second Trial Court ignored the fact that there were sufficient elements of proof to support the indictment, such as particularly serious testimony and documents, which taken together, left no room for doubt regarding the participation of the accused. The petitioners further reported that Guatemala had not guaranteed the right on the part of the victims or their next of kin to be heard in a fair trial within a reasonable period of time.
32. As regards the right to life, the petitioners alleged that the perpetrators of the arbitrary execution of Martín Pelicó, namely, Juan Chivalán Xam, Francisco Marroquín Vázquez, and Pedro Acabal Chaperón, were identified from the beginning of the proceedings as civil patrol agents in San Pedro Jocopilas. According to the Inter-American Court of Human Rights, the Civil Self-Defense Patrols are to be considered as State agents and therefore their acts are to be imputed to the State, since the State is responsible for any violation of the rights recognized by the Convention that is committed by an act of public authorities or persons acting with the powers resulting from their official capacity. Thus, the State is responsible not only for the execution of Pelicó, but also for the failure to conduct an effective investigation.
33. The petitioners maintained that the right to humane treatment was also violated by the State of Guatemala in the case in point. From the records of this case, there is no doubt that Martín Pelicó died as a result of multiple knife wounds he received and that his death was not immediate. It would appear that the circumstances in which these wounds were produced showed a clear possibility that they were inflicted as a form of torture, with the intent to cause the suffering and fear of the victim, who was at the mercy of his murderers.
34. The wife of Martín Pelicó Coxic, Rosario Hernández Grave, not only suffered the loss of her husband, but she was also powerless in view of the impunity of the murderers. This feeling of powerlessness was exacerbated when she became the victim of threats and acts of intimidation, to the extent that when she reported the crime, Rosario was so frightened that she refused to sign the declaration reporting the death of her husband, to avoid problems. Moreover, the constant denial of justice and the impunity involved in this case generated enormous suffering and anguish for the family, making the wife, the brothers, and the parents of Martín Pelicó Coxic victims as well.
35. In the
view of the petitioners, this makes Guatemala responsible for the
violation of the following rights recognized by the American Convention
on Human Rights, to the detriment of the following victims: in the case
of Martín Pelicó Coxic, responsibility for violation of Articles 4, 5,
8, and 25, considered in relation to Article 1(1) of the Convention;
and, to the detriment of Manuel
Mendoza Jolocomox, Rosario Hernández Grave, Manuel Hernández Ajbac,
Jesús Chaperón Marroquín, and Gustavo Vásquez Peralta, violation of
Articles 5, 8, and 25, considered in relation to Article 1(1) of
the Convention. B. Position of the State
36. In its initial letter dated November 8, 1996, the State of Guatemala stated that in the domestic arena, as observed from the court records for case number 1036-95, under the responsibility of the Court Officer [Oficial Segundo], processed in the Second Criminal Trial Court for Drug Activities and Crimes against the Environment, and in the Ministerio Público for El Quiché Department, the parties had access to the legal remedies provided for in Guatemalan legislation, and the national institutions in charge of judicial investigation and administration of justice in the country acted with full autonomy and independence, in accordance with the relevant constitutional precepts. The State added that the persons accused of the murder of Martín Pelicó Coxic, namely, Pedro Acabal Chaperón, Francisco Marroquín Vásquez, and Juan Chivalán Xam, were arrested by order of the competent judge, held for trial, and investigated. In addition, an order for their preventive detention was issued for the crime of homicide, and they were formally charged in an indictment; they also made use of the legal remedies available under Guatemalan legislation.
37. In that same letter, the State indicated that the Ministerio Público, the National Police and Forensic Medicine of El Quiché Department had met the requirements of the law and the respective institutions in the case in point. The State went on to say in the letter that among the functions of the Guatemalan government is the duty to prevent and prosecute crimes and, in so doing, to cooperate with the Ministerio Público and the courts, within the framework of the law. These are the institutions in charge of initiating criminal proceedings, with the support of the Political Constitution of Guatemala. The Guatemalan State also pointed out that none of the parties in this case had been denied access to legal remedies, and that they had appeared at the trial duly assisted by their attorneys, adding that an appeal filed by the Ministerio Público and the concurring plaintiff against the judgment of July 18, 1996, which declared the trial provisionally closed, was awaiting a decision. Consequently, remedies under domestic law had not been exhausted.
38. On February 25, 1997, the State indicated that the use of domestic legal remedies to settle the case had proven to be effective, when used opportunely and appropriately. However, it regretted that the arrest warrants issued against the accused had not been executed because it was impossible to determine their whereabouts.
39. In subsequent letters,[3] the State reiterated that remedies under domestic law had not been exhausted in the present case, and that they were continuing to make every effort, through the competent agencies, to clarify the facts and bring the responsible parties to justice. The State added that it was public knowledge that the existence of fugitives from justice who evade legal action was a regrettable situation which occurs even in countries with a better infrastructure for combating crime than what exists in Guatemala, and asked that due regard be given to the action undertaken by the competent State institutions to comply with the court orders.
40. In its communication giving its observations on the merits, dated December 2, 2002, the State had the following to say about the trial:
The case was processed in the Second Criminal Trial Court for Drug Activities and Crimes Against the Environment of El Quiché, case N° 1036-95, under the responsibility of the Court Officer; the defendants were Francisco Marroquín Vásquez, Pedro Acabal Chaperón, and Juan Chivalán Xam, of whom only Francisco Marroquín Vásquez was tried, as the other two were fugitives from justice.
On May 2, 2000, the Court issued its verdict, acquitting Francisco Marroquín Vásquez for the crime of homicide committed against Martín Pelicó, arguing that the Ministerio Público did not present any evidence related to the participation of the defendant in this act. Consequently, the criminal liability of the accused Marroquín Vásquez could not be established.
By virtue of the foregoing, both the verdict issued by the Criminal Trial Court of Santa Cruz del Quiché, and the judgment handed down by the Ninth Chamber of the Court of Appeals, in the absence of any other appeal, would bring to an end the criminal prosecution of Francisco Marroquín Vásquez, the only defendant tried in this case, who was acquitted in the decision issued by the Guatemalan courts of justice in the case of Martín Pelicó.
In this regard, the Guatemalan government would advise the Commission that, despite government efforts, to date it has been difficult to apprehend the other persons accused in this case, but that it will be carrying out a revised plan [reorientación], in order to capture these persons and determine the facts of the case, so as to clarify the death of Martín Pelicó Coxic, through a trial to take place in the courts of justice against Pedro Acabal Chaperón and Juan Chivalán Xam.
41. Moreover, the State made the following comments in its brief:
The Government of the Republic of Guatemala accepts the corresponding institutional responsibility for its failure to guarantee the physical security of Mr. Martín Pelicó Coxic, and at the same time it regrets his disappearance (sic) which occurred 7 years ago, and which has not been fully clarified, despite the formal investigation initiated in this case, permitting the victim’s next of kin access to justice by due process against Francisco Marroquín Vásquez. It further regrets that the results were not satisfactory, in that the judgment handed down on May 2, 2000 was an acquittal, and that it has not been possible to apprehend the other two persons accused in this case, to try them in court and clarify the death of Mr. Pelicó Coxic.
The Government of the Republic of Guatemala is of the view that both the court proceedings and the decisions handed down at the referenced trial were in accordance with the laws of the country. On November 13, 2002, the Ninth Chamber of the Court of Appeals confirmed the lower court decision. Thus, legal remedies, including a possible appellate court decision, have not been exhausted, and this is the reason why the final result of the proceedings is pending further appeals.
The criminal proceedings in the death of Mr. Pelicó Coxic, it adds, are open, and legal remedies are available for the effective criminal prosecution of this crime.
Moreover, the State reports that the information related to the case has been passed on to the Attorney General [Fiscal General] of the Republic and the head of the Ministerio Público, Carlos de León Argueta, the Private Secretary of the Ministerio Público, Sergio Salazar Aguirre, and the District Attorney of Santa Cruz del Quiché, José Alberto López Coronado, so that their offices can examine the information in this case, include it in the corresponding case files, and consider reorienting or revising the steps considered relevant for apprehending and indicting the other two persons accused, and for punishing the parties guilty of the death of Martín Pelicó Coxic.
According to the official letter sent by National Civil Police Station No. 71, the Criminal Trial Court for Drug Activities and Crimes against the Environment and the Public Prosecutor of the Ministerio Público of Santa Cruz del Quiché were asked to provide information related to the arrest warrants for Juan Chivalam Xam and Pedro Acabal Chaperón, which are still in force.
As regards the precautionary measures requested by the illustrious Inter-American Commission on Human Rights, in favor of witnesses and family members of Martín Pelicó Coxic, National Civil Police Station No. 71 of Santa Cruz del Quiché has sent periodic reports to COPREDEH to inform it that these persons are receiving security.
Finally, the State reiterated that in the present case, the remedies under domestic law had not been exhausted and that the criminal proceedings were open and legal remedies were available for effective criminal prosecution of the case.
IV. THE FACTS
1. Death of Martín Pelicó Coxic
42. Martín Pelicó Coxic was a Mayan Indian who lived in San Pedro de Jocopilas, Department of Quiché. He was married to Rosario Hernández Grave, with whom he had three children, and he was a member of the Council of Runujel Junam Ethnic Communities (CERJ), a nongovernmental organization established in 1988 particularly for the purpose of defending the human rights of its members belonging to the Mayan community. CERJ, which initially was headquartered in El Quiché Department, was opposed to serving in the Civil Self-Defense Patrols.
43. On June 27, 1995, Martín Pelicó Coxic was executed extrajudicially. He was 27 years old at the time of his death, and his children, David, Marta, and Doris, were 7, 6, and 5 years old, respectively.
44. According to information in the case documents submitted to the IACHR, on that June 27th, in San Pedro de Jocopilas, Department of Quiché, at approximately two in the afternoon, Mr. Pelicó went with his wife, Rosario Hernández Grave, to the home of Margarito Hernández, and on his way he met up with Pedro Acabal Chaperón, who invited Mr. Pelicó to accompany him to go with him to Santa Cruz del Quiché to do some jobs. After leaving a bicycle belonging to Mr. Acabal Chaperón at the home of Margarito Hernández, at about three in the afternoon, Mr. Pelicó left in the company of Mr. Acabal.
45. On that same day, at approximately seven in the evening, at the corner of the home of Mr. Pelicó, two men got out of a red pickup truck or van [camioneta], while another one remained in the driver’s seat, and they took Mr. Pelicó out of the back of the vehicle, left him lying in the street, and then fled.
46. The wife of Mr. Pelicó found him seriously injured and transferred him to their home, where he died moments later. According to the medical death certificate,[4] the cause of death was; cerebral attrition, asphyxiation by aspiration of water, skull fractures, and stab wounds puncturing the skull.[5]
2. The domestic judicial investigation
47. The Commission has viewed the main documents in the criminal case files opened in the death of Mr. Martín Pelicó, which were provided by the petitioners. The following information is taken from these documents:
48. On June 27, 1995, Rosario Hernández Grave, a Mayan woman who speaks Quechua, the widow of Martín Pelicó, who was 25 years old at that time, submitted a complaint to the police of San Pedro de Jocopilas, who transmitted the information to the justice of the peace or magistrate of that town. The justice of the peace ordered the following steps to be taken on that same day:
a) The undersigned associate judge is required to go immediately to the place where the body of Martín Pelicó Coxic was found and proceed with an examination of the evidence and record the description of the body;
b) The body of said person is to be sent to the morgue of Hospital Nacional Santa Elena of Santa Cruz del Quiché, for a forensic medical autopsy, under the authority of the appropriate officer, and the corresponding report is to be drawn up;
c) The appropriate authority is to issue certification of the death of the murder victim;
d) Testimony is to be taken from the persons who were present at the place of the event;
e) The appropriate measures under the law are subsequently to be taken.
49. In addition, the justice of the peace ordered that the records be sent to the District Attorney’s Office of the Ministerio Público, with a copy to the Second Criminal Trial Court for Drug Activities and Crimes Against the Environment of Santa Cruz de El Quiché, assigning number 1036-95 to the criminal case opened for the crime of homicide against Martín Pelicó Coxic.
50. On June 28, 1995, Mrs. Rosario Hernández formally accused Pedro Acabal Chaperón, in her declaration to the justice of the peace, but indicated that she did not want to sign the declaration, because “she did not want to have problems.”[6]
51. On June 29, 1995, the Police of San Pedro de Jocopilas reported to the justice of the peace that Pedro Acabal Chaperón had been detained in the public jail for inebriation and constituting a public nuisance. The justice of the peace ordered that he give a signed declaration, since he was accused of having participated in the death of Martín Pelicó. On July 3, 1995, the trial court of Santa Cruz de El Quiché issued an order for the detention and indictment of Acabal Chaperón.
52. Between June 29 and August 1, 1995, according to the criminal case files, seven witnesses[7] testified that they recognized Francisco Marroquín Vásquez and Pedro Acabal Chaperón as the persons who, on that June 27, 1995, met with and/or left Martín Pelicó mortally wounded in front of his home, and they also said that a third person, whose name they did not know, participated as well.
53. During that same period of time, five witnesses[8] declared in the trial court that, during the afternoon of June 27th, they had seen Pedro Acabal Chaperón take leave of Martín Pelicó Coxic, on a friendly basis, in front of the latter’s home.
54. On August 1, 1995, the lower court [tribunal de primera instancia] issued an arrest warrant for the accused Francisco Marroquín Vásquez, indicating in the pertinent decision that the investigation “of another unknown individual” was pending.
55. On August 29, 1995, Francisco Marroquín was arrested by national police officers, a signed statement was taken, and an order for his detention and an indictment against him were issued.
56. Between September 6 and September 11, 1995, according to the criminal case records, nine persons gave statements in defense of the accused persons.[9]
57. On September 14, 1995, Rosario Hernández Grave formally accused Francisco Marroquín.
58. Between September 20 and October 30, 1995, according to the criminal records, ten witnesses gave statements for the prosecution.[10] In these statements, for the first time Juan Chivalán Xam was identified as one of the persons who had participated in the acts that occurred on June 27, 1995, and witnesses further identified the defendants as members of the Civil Self-Defense Patrols.
59. In the case files, on page 114 there is an official letter signed by the commander of military zone No. 20 of El Quiché to the District Attorney of the, in which he reports that Francisco Marroquín and Juan Chivalán performed the duty of military agents and that in that capacity that were permitted to carry weapons.
60. In relation to the arguments in defense of Mr. Marroquín, in his signed statement he declared that on June 27, 1995, he was in the parish church from three in the afternoon until 10 at night, which was confirmed by witnesses. However, on page 126 of the case records, there is a document signed on October 8, 1995 by the parish priest of San Pedro de Jocopilas Parish, the president of the parish board, the chairman of the pro-fiesta committee, and the vice-chairman of the pro-improvement committee, in which it is indicated that the statements by Marroquín are false, because he does not belong to the parish organization and he was not participating in meetings at the parish on June 27, 1995.
61. On October 30, 1995, Clemente Penaleu N., the parish priest of San Pedro de Jocopilas Catholic Church gave a statement in court and confirmed what was stated in the aforesaid document, adding that Francisco Marroquín did not belong to any church in any district.
62. On November 29, 1995, Juan Chivalán Xam was arrested by national police officers, his signed statement was taken, and an order for his detention and an indictment against him were issued.
63. On February 29, 1996, Rosario Hernández Grave presented a private criminal complaint and civil suit against the accused. On March 11, 1996, the Ministerio Público requested that a trial be opened for this case and formally charged the three defendants.
64. On July 18, 1996, the judge of the lower court ordered the provisional closing of the proceedings, revoked the preventive detention orders, and issued an order to release the accused persons, stating in his decision that “in correctly analyzing the elements of proof brought in the context of this trial, it is found that they are insufficient to request the opening of the trial, since the guilt of the defendants, and the accusation that they committed the act or participated in it, have not been demonstrated clearly…”.
65. The Ninth Chamber of the Court of Appeals of Antigua Guatemala, after hearing an appeal filed by Rosario Hernández Grave, in her capacity as the concurring accuser, revoked the aforesaid decision, and nullified the provisional closing of the proceedings as of October 22, 1996. However, the Second Trial Court of Quiché did not comply with the order of the higher court and, in a decision issued on November 14, 1996, it confirmed its decision to revoke the November 18, 1995 judgment that ordered the preventive detention and indictment of the accused.
66. The prosecution filed an appeal with the local court to reverse its decision [recurso de reposición], and on December 30, 1996, the lower court judge dismissed the appeal, indicating that on the basis of a careful review of the case records and the evidence gathered, he was certain that the accused had not participated in the crime in question.
67. On January 21, 1997, the prosecuting attorneys submitted a petition to amend the criminal procedure contained in Article 67 of the Ley del Organismo Judicial, on the grounds of violation of the basic formal requirements in the court proceedings. On January 22, 1997, the judge decided to deny the petition, arguing that it was not an institution contained in the Code of Criminal Procedure.
68. On May 8, 1997, after a change in the head of the Second Criminal Trial Court, Francisco Marroquín Vásquez, Pedro Acabal Chaperón, and Juan Chivalán Xam were issued summons to give statements on the 12th of that same month. Since they did not appear, on May 15, 1997, the court ordered that they be arrested and held on bond for homicide.
69. On March 20, 1999, Francisco Marroquín Vásquez was captured, tried, and acquitted in a judgment issued on May 2, 2000 by the Sentencing Court of El Quiché, on the grounds that the prosecution did not present conclusive evidence of the responsibility of the accused. According to the judge, “the accusing entity (Ministerio Público) did not present any evidence, as was its obligation to do so, to support the charges against the accused.”
70. The Guatemalan police have not apprehended Juan Chivalán Xam and Pedro Acabal Chaperón. As of the date of this report, no persons have been convicted for the death of Martín Pelicó.
V. ANALYSIS ON ADMISIBILITY
71. In view of the fact that the petition was presented on August 6, 1996, and that the parties have had ample and numerous opportunities to set out their factual and legal arguments on the conditions for admissibility and on the merits of the case, the Commission decided to apply the exception provided for in Article 37(3)[11] of its Rules of Procedure. As a result, a determination will be made as to both the admissibility and the merits of the case in this report.
A. Competence
72. The petitioners are authorized by Article 44 of the American Convention to lodge petitions with the IACHR. The petition gave the names of individual persons as the presumed victims, in respect of whom the Guatemalan State is committed to respect and guarantee the rights established in the American Convention. As regards the State, the Commission points out that Guatemala has been a party to the American Convention since May 25, 1978, the date on which it deposited its instrument of ratification. Therefore, the Commission has competence ratione personae to examine the petition.
73. The Commission has competence ratione loci to take cognizance of the petition, because it alleged that violations of the rights protected in the American Convention occurred within the territory of a state party to that agreement. The IACHR has competence ratione temporis because the obligation to respect and guarantee the rights protected in the American Convention was already in effect for the State on the date that the acts alleged in the petition occurred. Finally, the Commission has competence ratione materiae, because violations of human rights protected by the American Convention are reported in the petition.
B. Requirements for Admissibility
1. Exhaustion of domestic remedies and deadline for presentation of the petition
74. The State argued that there is a criminal proceeding pending and that the security forces are continuing to take various steps to successfully apprehend the parties accused of the murder of Martín Pelicó Coxic, and that consequently the complaint of the petitioners does not fulfill the requirement stipulated in Article 46(1) of the American Convention on prior exhaustion of domestic remedies.
75. The petitioners, for their part, maintained that in the criminal process initiated in 1995, the murder of Martín Pelicó Coxic has still not been clarified, and that there is an unjustified delay in concluding the criminal investigation.
76. It is therefore necessary to clarify what are the domestic remedies that must be exhausted in the present case. The Inter-American Court has pointed out that only adequate remedies to correct the presumed violations must be exhausted. Adequate remedies are considered to have the following meaning:
[T]he function of these remedies within the domestic legal system should be suitable for protection vis-à-vis the violated legal situation. In all domestic legal systems, there are many remedies, but not all are applicable in all circumstances. If, in a specific case, a remedy is not adequate, it is obvious that it does not have to be exhausted. This is clear in the principle that a legal provision is directed to producing an effect, and cannot be interpreted in the sense that it does not produce any effect or that the result of it is patently absurd or unreasonable.[12]
77. The jurisprudence of the Commission recognizes that whenever a crime that can be judicially prosecuted is committed, the state has the obligation to initiate and expedite criminal proceedings to their ultimate consequences,[13] and that, in those cases, this is the mot suitable way to clarify the facts, judge the responsible parties, and establish the corresponding criminal sanctions, in addition to providing for other methods of pecuniary compensation. The Commission considers that the facts alleged by the petitioners in the present case involve the presumed violation of fundamental rights which are specified in domestic law as crimes to be judicially prosecuted, hence it is this process, expedited by the state itself, that should be considered for the purpose of determining the admissibility of the petition.
78. In addition, the Commission notes that the petitioners have demonstrated in this case, with the copies of the criminal case records sent to the Commission, that the spouse of Martín Pelicó Coxic participated actively in the criminal complaint initiated in the domestic courts. In fact, Mrs. Hernández filed the complaint with the Guatemalan authorities in relation to the acts which occurred on June 25, 1995, the same day on which her husband died, participated as the accusing party, filed all the necessary appeals to obtain justice, through her legal representatives, made formal charges, presented witnesses, offered documentary evidence, and petitioned the court to adopt certain legal measures. She even acted as a concurring complainant or accuser [querellante adhesiva] and filed a civil suit. These measures, however, proved to be ineffective, as the proceedings against the defendants were stayed or dismissed and/or the defendants were acquitted.
79. As regards the exception to compliance with the requirement of exhaustion of domestic remedies referred to by the petitioners, Article 46(2)(a) of the Convention establishes that this requirement does not apply when:
a. the domestic legislation of the state concerned does not afford due process of law for the protection of the right or rights that have allegedly been violated;
b. the party alleging violation of his rights has been denied access to the remedies under domestic law or has been prevented from exhausting them; or
c. there has been unwarranted delay in rendering a final judgment under the aforementioned remedies.
80. As already mentioned, and as apparent from the information provided by the parties, over eight years have lapsed since the death of Martín Pelicó Coxic, while the investigation into the case has not been concluded, and the arrest warrants issued against the accused linked to the investigation have not been effective, all of which are indications of a delay. Although the State of Guatemala has reported to the Commission that the arrest warrants issued against the accused are pending, it has not provided any information on the specific steps taken to make them effective.
81. As a general rule, a criminal investigation must be conducted promptly to protect the interests of victims, preserve evidence, and even to safeguard the rights of any persons considered as suspects in the context of the investigation. According to the Inter-American Court, although all criminal investigations must meet a series of legal requirements, the rule of prior exhaustion of domestic remedies should not cause international procedures to assist victims to be held up or delayed to the point where they are useless.[14]
82. To the foregoing we would add the circumstances in which the investigation was conducted, which presumably have affected its effectiveness as a way of ensuring judicial clarification of the facts. The threats to family members, witnesses, and attorneys of the victim, which led them to request the IACHR to adopt precautionary measures, show that the prospects of an effective judicial investigation are far from being equivalent to those of a remedy that is required to be exhausted prior to recourse to international protection of human rights. On this point, the Commission appreciates the steps taken by the Guatemalan State to implement the precautionary measures granted by the Commission on August 23, 1996.
83. Therefore, in view of the characteristics and the circumstances of the present case, the Commission is of the view that the exception stipulated in Article 46(2)(c) of the Convention is applicable, hence the requirements pertaining to exhaustion of domestic remedies in the American Convention are not applicable, and as a result, neither is the six month period for presentation of the petition.
84. Finally, application of the exceptions to the rule of exhaustion of domestic remedies, as stipulated in Article 46(2) of the Convention, is closely linked to the determination of possible violations of certain rights established therein, such as guarantees of access to justice. However, Article 46(2), by its nature and purpose, is an autonomous provision separate from the substantive provisions of the Convention. Therefore, a determination as to whether the exceptions to the rule of exhaustion of domestic remedies, as stipulated in subparagraphs (a), (b), and (c) of that Article, are applicable to the case in point should be made prior to and separate from the examination of the merits of the case, since it relies on a different evaluation standard than the one used to determine a violation of Articles 8 and 25 of the Convention. It should be noted that the causes and the effects that prevented exhaustion of domestic remedies will be analyzed in the report to be adopted by the IACHR on the substance of the controversy, in order to ascertain if they constitute violations of the American Convention.
2. Duplication of procedures and res judicata
85. It does not appear from the case records that the petition is pending in another international proceeding, or that it replicates a petition already examined by this or another international organization. It therefore meets the requirements established in Articles 46(1) (c) and 47(d) of the Convention.
3. Characterization of the alleged acts
86. The Commission considers that the allegations of the petitioners regarding the presumed violation of the right to life, humane treatment, a fair trial, and judicial protection for victims and their family members could be characterized as a violation of the rights guaranteed in Articles 4, 5, 8, and 25, considered together with Article 1(1), of the American Convention.
4. Conclusions on admissibility
87. The Commission is of the opinion that the case is admissible and that it is competent to examine the petition presented by the petitioners regarding the presumed violation of Articles 4, 5, 8, and 25 of the American Convention, considered together with Article 1(1) of that instrument, in accordance with the requirements stipulated in Articles 46 and 47 of that Convention.
VI. ANALYSIS OF THE MERITS
88. The Commission considers the facts set forth in section IV of
this report as established for the purposes of this analysis. It will
now examine the rights to life, humane treatment, a fair trial, and
judicial protection established in the American Convention, all of which
will be considered in relation to the article on the obligation to
respect the rights established in this international instrument and in
light of the facts which are considered as proven. A. Right to life
89. Article 4.1 of the American Convention establishes that:
[e]very person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
90. The right to life is the fundamental basis of the exercise of the other rights. Compliance with Article 4 of the American Convention, in relation with Article 1.1, not only presumes that no persons is to be deprived of his life arbitrarily (negative obligation), but it also requires states to adopt appropriate measures to protect and preserve the right to life (positive obligation). The Inter-American Court has had the following to say on this point:
The right to life is a fundamental human right, and enjoyment of this right is a prerequisite for the exercise of all other human rights. If it is not respected, all the rights become meaningless. Because of the fundamental character of the right to life, no restrictions to it are admissible. In essence, the fundamental right to life includes not only the right of all human beings not to be deprived of their life arbitrarily, but also the right not to be prevented access to the conditions guaranteeing a decent existence. States have the obligation to ensure creation of the conditions needed to ensure that this basic right is not violated, and they specifically have the duty to prevent their agents from violating this right.[15]
91. The Human Rights Committee, established by the United Nations International Covenant of Civil and Political Rights, has held that [p]rotection against the arbitrary deprivation of life, which is specifically required by the third paragraph of Article 6.1 of the International Covenant of Civil and Political Rights, is of supreme importance. The Committee considers that states parties must adopt measures not only to prevent and punish deprivation of life [caused by] criminal acts, but also to prevent arbitrary homicides committed by their own security forces. Deprivation of life by state authorities is a matter of the utmost gravity. As a result, the state must strictly control and limit the circumstances in which [a person] may be deprived of his life by such authorities.[16]
92. According to the statements of witness and the documents contained in the criminal case records, the persons who left Martín Pelicó Coxic mortally wounded at the corner of his house were Pedro Acabal Chaperón, Francisco Marroquín Vásquez, and Juan Chivalán Xam; the first two are military agents[17] and the last one is a member of the Civil Self-Defense Patrols (PACs).
93. The Civil Self-Defense Patrols emerged in the early 1980’s as groups of civilians organized “by force, by the army, which wanted to isolate the guerrilla movement and control the communities. In April 1983, they were legally recognized by Governme |
