In the Myrna Mack Chang case,
the Inter-American Court of Human Rights (hereinafter “the Court” or “the Inter-American Court”), composed of the following judges:
Antônio A. Cançado Trindade, President;
Sergio García Ramírez, Vice-President;
Hernán Salgado Pesantes, Judge;
Máximo Pacheco Gómez, Judge;
Oliver Jackman, Judge;
Alirio Abreu Burelli, Judge;
Carlos Vicente de Roux Rengifo, Judge; and
Arturo Martínez Gálvez, Judge ad hoc;
also present,*
Manuel E. Ventura Robles, Secretary,
pursuant to Articles 29, 55, 56 and 57 of the Rules of Procedure of the Court (hereinafter “the Rules of Procedure”) and to article 63(1) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) issues the instant Judgment.
I
INTRODUCTION OF THE CASE
1. On June 19, 2001, the Inter-American Commission on Human Rights (hereinafter “the Commission” or “the Inter-American Commission”) filed before the Court an application against the State of Guatemala (hereinafter “the State” or “Guatemala”), originating in complaint Nº 10.636, received at the Secretariat of the Commission on September 12, 1990.
2. The Commission filed the application on the basis of Article 51 of the American Convention, for the Court to decide whether the State violated Articles 4 (Right to Life), 8 (Right to Fair Trial), 25 (Judicial Protection) in combination with Article 1(1) (Obligation to Respect Rights) of the American Convention to the detriment of Myrna Elizabeth Mack Chang (hereinafter “Myrna Mack Chang”) and her next of kin, “due to the extra-legal execution of Myrna Mack Chang [that took place] on September 11, 1990 in Guatemala City.”
3. The Commission also asked the Court to order the State to make all the pecuniary and non-pecuniary reparations stated in the application. Finally, it asked the Inter-American Court to order Guatemala to pay the costs arising from processing of the case both domestically and internationally before the bodies of the Inter-American System for Protection of Human Rights.
4. According to the Commission, Guatemala is responsible for the arbitrary deprivation of the right to life of Myrna Mack Chang, because the murder of the victim, committed on September 11, 1990, was the consequence of a military intelligence operation, springing from a prior plan and carefully prepared by the high command of the Presidential General Staff. Said plan involved, first, selecting the victim in a precise manner due to her professional activity; second, brutally murdering Myrna Mack Chang; and third, covering up the direct perpetrators and accessories of the murder, obstructing the judicial investigation and insofar as possible ensuring that impunity prevailed with respect to the murder. The Commission added that the State has not resorted to all the means available to it with the aim of conducting a serious and effective investigation that could be the basis for complete elucidation of the facts, prosecution, trial, and punishment of those responsible, both direct perpetrators and accessories, within a reasonable term. This situation has been made worse by the existence of de facto and legal mechanisms, tolerated by the Guatemalan State, that obstruct adequate administration of justice.
II
COMPETENCE
5. Guatemala has been a State Party to the American Convention since May 25, 1978, and it accepted the contentious jurisdiction of the Court on March 9, 1987. Therefore, the Court is competent to hear the instant case, pursuant to the terms of Articles 62 and 63(1) of the Convention.
III
PROCEEDING BEFORE THE COMMISSION
6. On September 12, 1990, the Comisión Guatemalteca de Derechos Humanos [or Guatemalan Human Rights Committee] filed the complaint before the Inter-American Commission and since April, 1991, the Lawyers Committee for Human Rights and Georgetown University continued the case. Several United States law firms participated in the proceeding, as co-applicants, together with the Lawyers Committee for Human Rights.
7. On September 17, 1990, the Commission opened the case as Nº 10.636.
8. On March 5, 1996, the Commission adopted Report Nº 10/96 in which it declared the case admissible. The Commission also made itself available to the parties with the aim of attaining a friendly settlement of the matter, pursuant to Article 48(f) of the American Convention.
9. On March 3, 2000, the Guatemalan State recognized its “institutional responsibility” in the instant case, during a public hearing at the seat of the Inter-American Commission. On that same date, the State and the applicants reached an agreement to advance the criminal proceedings under domestic jurisdiction, for which they established a verification committee in which they agreed to “come together through willingness to reactivate the respective investigation and further the judicial proceeding underway in Guatemala.”
10. On May 26, 2000, the applicants and the State signed an agreement on the way the verification should take place, and on June 22 of that same year they signed an agreement on the framework and the start of the “verification,” on impelling reactivation of the judicial proceeding, on verification actions and reports as well as on procedural thrust, communication among the parties, and publication of said reports.
11. On July 25 and 26, 2000, the Inter-American Commission officially appointed Alfredo Balsells Tojo and Gabriela Vásquez Smerilli as the verifiers.
12. On August 23 and October 4, 2000, the verifiers submitted their first and second reports, respectively, to the Commission. In the latter report, the verifiers reached the conclusion “that the proceeding against the military accused of being the accessories of the murder of anthropologist Myrna Elizabeth Mack Chang began in 1994 and to date we cannot envision that it will move forward in the future without judicial obstacles, because from the start there have been all sorts of challenges that have obstructed compliance with due process in the development of the case.”
13. On October 5, 2000, during a hearing before the Commission, Gabriela Vásquez Smerilli presented the second verification report regarding the criminal proceeding. At that same hearing, the applicants affirmed that they did not see any serious commitment and willingness of the State to move the case forward so as to try and to effectively punish the accessories of the murder of Myrna Mack Chang, for which reason they would no longer consider the possibility of reaching a friendly settlement in this case.
14. On March 8, 2001, the Commission, pursuant to Article 50 of the Convention, adopted Report Nº 39/01, in which it reached the conclusion that:
[t]he acknowledgment of responsibility by the Guatemalan State has full juridical value in accordance with the principles of international law and place[s] it under to obligation to effectively redress the violations it committed, pursuant to the provisions of the American Convention. Over a year after the acknowledgment of responsibility, the Guatemalan State has undertaken no effective actions to lift the cloak of impunity that still exists regarding the accessories of the extra-legal execution of Myrna Mack. Such inaction by the Guatemalan State leads the Commission to affirm that the State of Guatemala continues to lack a serious willingness to investigate and effectively punish all those responsible for the murder of Myrna Mack Chang in accordance with the provisions of the American Convention on Human Rights.
[…]
Based on these conclusions, the Commission made the following recommendations
to the State:
1. To conduct a complete, impartial and effective investigation with the aim of trying and punishing all participants in the murder of Myrna Mack Chang.
2. To adopt all necessary measures for the next of kin of Myrna Mack Chang to receive adequate and timely reparation for the violations found here.
3. To remove all obstacles and de facto and legal mechanisms that maintain impunity in the instant case.
4. To replace the Presidential General Staff as soon as possible in compliance with the agreement and as set forth in the Peace Accord.
15. On March 19, 2001 the Commission sent the aforementioned report to the State
and granted it two months to comply with its recommendations. On May 18 of that
same year, the State requested of the Commission a ten-day extension to submit
its report on compliance with the recommendations, and the request was granted.
16. On May 30, 2001, the State submitted its reply to Report N° 39/01 by the Commission.
17. On June 14, 2001 the Commission decided to submit the case to the jurisdiction of the Court.
IV
PROCEEDING BEFORE THE COURT
18. The Commission filed the application before the Court on June 19, 2001, and attached 52 annexes. The Commission also sent various documents, issued after the application was filed, in connection with the domestic criminal proceeding and press reports.
19. Pursuant to Article 22 of the Rules of Procedure, the Inter-American Commission appointed Claudio Grossman as Delegate, and Ariel Dulitzky as legal advisor. Pursuant to Article 33 of the Rules of Procedure, the Commission also stated the names and addresses of the next of kin of Myrna Mack Chang and informed the Court that the latter would be represented by the sister of the victim, Helen Mack Chang.
20. On July 26, 2001, the Secretariat of the Court (hereinafter “the Secretariat”), after a preliminary examination of the application by the President of the Court (hereinafter “the President”), notified the State, including the annexes, and informed it of the terms to answer the application and to appoint its agents in the proceeding. That same day, the Secretariat also informed the State of its right to appoint an ad hoc Judge to participate in consideration of the instant case.
21. On that same date, pursuant to the provisions of Articles 35(4), 35(1)d) and 35(1)e) of the Rules of Procedure, the application was notified to the representatives of the next of kin of the victim, and to Helen Mack Chang, for them to submit their brief with requests, pleadings, and evidence.
22. On August 6, 2001, the representatives of the next of kin of the victim filed a note together with which they forwarded a copy of the power of attorney granted by Helen Mack Chang, who in turn had been appointed as proxy for the other next of kin of Myrna Mack Chang, in favor of Alberto Bovino; Jeff Clark, representing the Lawyers Committee for Human Rights; Elijah Barret Prettyman Jr., Lyndon Tretter, Taylor Lee Burke, Shannon Tovan MacDaniel and David Kassenbaum, of the United States law firm Hogan & Hartson; and Viviana Krsticevic and Roxanna Altholz representing the Center for Justice and International Law (hereinafter “CEJIL”) to represent the next of kin of the victim before the Court. They also appointed Taylor Lee Burke as common intervener.
23. On August 23, 2001, the State reported that it had appointed Francisco Villagrán Kramer as Judge ad hoc and Jorge García Laguardia as Agent.
24. On August 31, 2001, the representatives of the next of kin of the victim submitted their brief with requests, pleadings, and evidence. On September 13, 2001, they also submitted the original brief and its annexes. In the aforementioned brief, said representatives asked the Court to find that Guatemala violated Articles 4, 8, 25 and 1(1) of the American Convention to the detriment of the victim and Articles 5, 8, 25 and 1(1) of that same Convention to the detriment of her next of kin. They furthermore requested that the State be ordered to adopt various pecuniary and non-pecuniary measures of reparation, as well as to pay the costs derived from processing of the case both under domestic jurisdiction and before the bodies of the inter-American system for the protection of human rights. On November 1, 2001, the Commission submitted its observations on the brief filed by said representatives, ratifying the application in its entirety and stating that it had no specific objections to their requests.
25. On September 26, 2001, Guatemala submitted its brief answering the application, in which it filed nine preliminary objections, together with its annexes. In said brief, the State requested that the Court consider the application answered negatively regarding the non-disputed parts and those on which it did not state an explicit acknowledgment. Furthermore, it requested that, based on the preliminary objections raised, the Court rule the application filed by the Commission inadmissible. On October 30, 2001, the Secretariat, following instructions by the President, granted a 30-day term, beginning on the date of receipt of said brief, for the Commission and the representatives of the next of kin of the victim to submit their written pleadings on the preliminary objections filed by the State.
26. On November 29, 2001, the Commission filed its brief with observations on the preliminary objections, in which it requested that they be rejected.
27. On November 30, 2001, the representatives of the next of kin of the victim submitted their brief with observations on the preliminary objections filed by the State and its annexes, and they expressed that the Commission conclusively addressed the considerations that make it necessary to reject all the preliminary objections filed by the State, and they stated their agreement with said arguments.
28. On August 28, 2002, the representatives of the next of kin of the victim filed a brief in which they objected to Francisco Villagrán Kramer as Judge ad hoc in the instant case.
29. On October 3, 2002, the State reported that it had appointed Arturo Martínez Gálvez as Judge ad hoc in the instant case, in substitution of Francisco Villagrán Kramer.
30. On November 8, 2002, the Secretariat asked the Commission and the representatives of the next of kin of the victim to submit a definitive list of witnesses and expert witnesses, respectively, to consider summoning them to a public hearing.
31. On November 21, 2002, the representatives of the next of kin of the victim filed a brief in which they reiterated their offer of six expert witnesses: Mónica Pinto, Katharine Doyle, Bernardo Morales, Alicia Neuburger, Iduvina Hernández, and Javier Llobet Rodríguez, and they desisted from the offer of the following six expert witnesses: Christian Tomuschat, Allan Brewer-Carias, Rodolfo Robles Espinoza, Héctor Rosada, Francisco Chávez Bosque, and Frank La Rue. They also reiterated their offer as witnesses of the following eight persons: Helen Mack Chang, Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Clara Arenas Bianchi, Henry Monroy Andrino, Lucrecia Hernández Mack, and Carmen de León-Escribano Schlotter, and they desisted from offering the testimony of Rubio Caballeros Herrera. They also offered, for the first time, Nadezhda Vásquez Cucho as a witness. Finally, said representatives requested that Gabriela Vásquez Smerilli appear as a witness rather than as an expert witness, as they had originally proposed.
32. On November 21, 2002, the Commission filed a brief in which it reiterated its offer of expert witness Mónica Pinto and it desisted from its offer of the other expert witnesses proposed. The Commission also reiterated its offer of the following seven witnesses: Helen Mack Chang, Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Clara Arenas Bianchi, Henry Monroy Andrino, and Lucrecia Hernández Mack, and it desisted from its offer of witness Rubio Caballeros Herrera. For the first time, it proposed Nadezhda Vásquez Cucho as a witness. Finally, the Commission included as a witness in the definitive list Gabriela Vásquez Smerilli, whom they had originally offered as an expert witness.
33. On November 22, 2002, the Secretariat forwarded to the State the definitive list of witnesses and expert witnesses proposed by the Commission and the representatives of the victim, and granted them until the 27th of that same month and year to submit whatever observations they deemed pertinent.
34. On November 27, 2002, Guatemala submitted its observations on the offer of witnesses and expert witnesses made by the Commission and the representatives of the next of kin of the victim. Guatemala stated that it had no objections to the witnesses, but that regarding the expert witnesses it could not state its position because it did not have any background on them, for which reason it asked the Court to forward the curricula vitae of the expert witnesses proposed “to be able to state its position on [their] participation.” In said brief, the State also reserved the right to offer and propose its witnesses and expert witnesses in the instant case, before the ruling on the preliminary objections raised. On November 29, 2002, the Secretariat, following instructions by the President, informed the State that it had already forwarded to the State, on July 26, 2002, the curricula vitae of the expert witnesses proposed by the Commission and by the representatives of the next of kin of the victim.
35. On November 30, 2002 the President issued an Order in which he admitted the testimony and expert opinions offered by the Commission and by the representatives of the next of kin of the victim. He also summoned the parties to a public hearing to be held at the seat of the Inter-American Court, beginning on February 18, 2003, to hear their final oral pleadings on preliminary objections, the merits, and possible reparations, as well as the testimony of Monsignor Julio Cabrera Ovalle, Virgilio Rodríguez Santana, Rember Larios Tobar, Henry Monroy Andrino, Lucrecia Hernández Mack, Helen Mack Chang, Gabriela Vásquez Smerelli, and Nadezhada Vásquez Cucho and the expert opinion of Mónica Pinto proposed both by the Commission and by said representatives. He also decided to hear the expert opinion of Katharine Doyle, Alicia Neuburger, Iduvina Hernández, and Javier Llobet Rodríguez, offered only by the representatives of the next of kin of the victim. Finally, he ordered that the testimony of Clara Arenas Bianchi and Carmen de León-Escribano Schlotter and the expert opinion of Bernardo Morales Figueroa be received in writing.
36. On January 17, 2003, the representatives of the next of kin of the victim asked the Court, based on Article 43 of the Rules of Procedure, to summon Henry El Khoury Jacob as an expert witness during the public hearing ordered, in substitution of Javier Llobet Rodríguez, because the latter was appointed as a Judge of the Criminal Court of Appeal in Costa Rica “[and] his participation [in the public hearing] faces insuperable logistic and ethical difficulties.” On January 21, 2003, the Secretariat, following instructions by the President, addressed the Commission and the State for them to submit whatever observations they deemed pertinent regarding the requested substitution of the expert witness, before the 27th of that same month and year. Neither the Commission nor the State objected to said substitution.
37. On January 17, 2003, the representatives of the next of kin of the victim sent the sworn written statements of Carmen de León-Escribano Schlotter and Clara Arenas Bianchi and the expert opinion of Bernardo Morales Figueroa.
38. On January 20, 2003, Helen Mack Chang sent a letter in which she rescinded the previous power of attorney in favor of attorneys Taylor Lee Burke and Jeff Clark and she granted a power of attorney to Alberto Bovino, Robert O. Varenick, Elijah Barret Prettyman Jr., Lyndon Tretter, Shannon Tovan McDaniel, David Kassebaum, Viviana Krsticevic, and Roxana Altholz. She also appointed David Kassebaum as common intervener.
39. On January 30, 2003, the President issued an Order in which he accepted the offer of expert witness Henry El Khoury Jacob as a substitute for Javier Llobet Rodríguez, for him to render an expert opinion during the public hearing to be held beginning on February 18, 2003, in the instant case.
40. On February 14, 2003, the State submitted a brief in which it stated that it had decided to maintain and reiterate before the Court, in the same and literal terms stated before the Commission in March, 2000, “the international acceptance of its Institutional Responsibility in the Myrna Mack Chang case No. 10,636.”
41. On February 17, 2003, the Secretariat, under instructions by the full Court, asked the Commission and the representatives of the next of kin of the victim to submit whatever observations they deemed pertinent regarding the February 14, 2003 communication by the State. Said observations were received on the 17th of that same month and year (infra paras. 76 and 77).
42. On February 18, 2003, during the preliminary meeting before the public hearing summoned for that day, the State submitted a brief entitled “brief modifying the answer of the State of Guatemala to the application filed by the Inter-American Commission on Human Rights in the Myrna Mack Chang Case No. 10,636 of July 26, 2001,” in which it desisted from the preliminary objections filed.
43. On February 18, 2003, the Court held the public hearing summoned in the instant case, at its seat, and at which there appeared:
for the Inter-American Commission on Human Rights:
Claudio Grossman, Delegate;
Eduardo Bertoni, representative; and
María Claudia Pulido, advisor;
for the representatives of the next of kin of the victim:
Alberto Bovino, representative;
Roxanna Altholz, on behalf of CEJIL;
Elijah Barret Prettyman Jr., of Hogan & Hartson L.L.P.;
Lyndon Tretter, of Hogan & Hartson L.L.P.;
Shannon Tovan McDaniel, of Hogan & Hartson L.L.P.; and
David Kassebaum, of Hogan & Hartson L.L.P.;
for the State of Guatemala :
Ricardo Alvarado Ortigoza, Ambassador of the State of Guatemala before the
Permanent United Nations Mission; and
Cruz Munguía Sosa, Deputy Executive Director of the Presidential Human Rights
Committee;
witnesses proposed by the Commission and by the representatives of the next of kin of the victim:
Monsignor Julio Cabrera Ovalle;
Virgilio Rodríguez Santana;
Rember Larios Tobar;
Henry Monroy Andrino;
Lucrecia Hernández Mack;
Helen Mack Chang; and
Gabriela Vásquez Smerilli;
Nadezhada Vásquez Cucho;
expert witness proposed by the Commission and by the representatives of the next of kin of the victim:
Mónica Pinto;
expert witnesses proposed by the representatives of the next of kin of the victim:
Katharine Doyle;
Alicia Neuburger;
Iduvina Hernández; and
Henry El Khoury Jacob.
44. At the start of the public hearing, on February 18, 2003, the Stated desisted from all the preliminary objections and reiterated what it stated in the brief submitted before the beginning of that hearing (supra para. 42). The Commission and the representatives of the next of kin of the victim, in turn, referred to the statement by Guatemala.
45. On February 18, 2003, the Court issued an Order in which it decided to receive the waiver by the State of the preliminary objections it had filed, and to continue the public hearing summoned in the Order of the President of November 30, 2002, as well as the procedural actions pertaining to the proceedings on the merits and possible reparations in the instant case.
46. On the second day of the public hearing, on February 19, 2003, after the first four witnesses, the Agent for Guatemala stated before the Court the decision of the State to withdraw from the public hearing and to return during its conclusion “to state its final position regarding this hearing.”
In this regard, the President stated that:
[w]ith respect to what the Agent has stated, I merely wish to read the provision of the Rules of Procedure of the Court in case of inaction. The Rules of Procedure provide, in Article 27, paragraph 1, that when a party abstains from acting the Court will, on its own motion, further the proceedings until their completion. And in paragraph two, “when a party enters a case at a later stage of the proceedings, it shall take up the proceedings at that stage.” Therefore, we await the presence of the State to present its final position at the appropriate time in these public hearings.
After this, the Agents of the State withdrew from the public hearing, which continued that same day with the testimonies and expert opinions ordered and presentation of a video recording of an interview with Noel de Jesús Beteta Álvarez. On the following day, February 20, 2003, the Agents of the State appeared once again at the public hearing to make their final oral pleadings. The representatives of the next of kin of the victim and the Commission, in turn, presented their final oral pleadings. The Commission also presented a copy of Communiqué No. 032-2003 of February 19, 2003 of the Ministry of Foreign Affairs entitled “[e]l Estado de Guatemala contribuye a la justicia en el Caso Mack Chang aceptando la responsabilidad institucional ante la Corte Interamericana de Derechos Humanos” [“[t]he State of Guatemala contributes to justice in the Mack Chang Case accepting its institutional responsibility before the Inter-American Court of Human Rights”].
47. On February 24, 2003, the State submitted a brief in which it reported on the “true scope of the acceptance of responsibility by Guatemala in the Myrna Mack Chang case.” In this regard, on February 25, 2003, the Secretariat, following the instructions given by the Judges of the Court, granted the Commission and the representatives of the next of kin of the victim until March 3, 2003, to submit their observations on said brief by the State, and these were received that day.
48. On March 3, 2003 the State submitted a brief entitled “Documento aclaratorio del reconocimiento de responsabilidad internacional por parte del Estado de Guatemala en el caso 10.636 ‘Myrna Mack Chang’” [“Document clarifying the acknowledgment of international responsibility by the State of Guatemala in the ‘Myrna Mack Chang’ case No. 10,636”]. In said document, the State explained “the mistake made in the note it [sent] on February 14 and, specifically, in the presentation made by the State of Guatemala before the [...] Court at the public hearing on February 18 of this year.”
49. On March 14, 2003, the Commission and the representatives of the next of kin of the victim submitted their observations on the aforementioned March 3, 2003 document filed by the State.
50. On May 6, 2003, the Secretariat informed the parties that, following instructions by the President, it granted them until June 9 of that same year to submit their final written pleadings.
51. On June 10, 2003, the representatives of the next of kin of the victim sent their final written pleadings and their annexes.
52. On June 24, 2003, after being granted an extension, the Commission submitted its final written pleadings.
53. The State did not submit final written pleadings within the term allowed for this purpose.
54. On August 6, 2003, the Secretariat, following instructions by the President, pursuant to Article 44 of the Rules of Procedure, asked the Commission, the representatives of the next of kin of the victim and the State to submit the life expectancy indexes for Guatemala from 1990 to the present, as well as the rate of variation of the consumer price indexes from 1998 to the present, as evidence to facilitate adjudication of the case. That same day, it also asked the Commission, as evidence to facilitate adjudication of the case, for the birth certificate of Vivian Mack Chang, and it asked the representatives of the next of kin of the victim for a certification of the marriage of Myrna Mack Chang and Víctor Hugo Hernández Anzueto; a certification of the marriage status of Myrna Mack Chang at the time of her demise; a copy of the case file of the ongoing criminal proceeding on the murder of Myrna Mack Chang from the October 4, 2001 ruling of the Constitutional Court of Guatemala, in which it designated the Second Chamber of the Court of Appeals to decide on the amparo remedy filed by Juan Oliva Carrera on July 23, 2001, to the present time, and copies of several actions carried out within the aforementioned criminal proceeding before October, 2001.
55. On September 4, 2003, the State submitted several documents that were requested as evidence to facilitate adjudication of the case. On September 5, 2003, the Commission and the representatives of the next of kin of the victim submitted the documents requested of them as evidence to facilitate adjudication of the case.
56. On September 4, 2003, the Secretariat, following instructions by the President, asked the State, pursuant to Article 44(1) of the Rules of Procedure, to send the following documents as evidence to facilitate adjudication of the case: a copy of the file of the ongoing criminal proceeding for the murder of Myrna Mack Chang from the October 4, 2001 ruling of the Constitutional Court of Guatemala, in which it designated the Second Chamber of the Court of Appeals to decide on the amparo remedy filed by Juan Guillermo Oliva Carrera on July 23, 2001, to the present time, and copies of several actions carried out within the aforementioned criminal proceeding before October, 2001.
57. On October 15, 2003, the State requested an extension to the period given
to send the evidence to facilitate adjudication of the case, requested by this
Secretariat (supra para. 54) and it submitted some of the documents requested.
In this regard, the Secretariat, following instructions by the President, granted
said extension until October 30, 2003. On October 24 and 27, 2003, the State
submitted some of those documents.
VI
PROVISIONAL MEASURES
58. On August 9, 2002, the Inter-American Commission filed before the Inter-American Court, pursuant to Articles 63(2) of the American Convention and 74 of the Rules of Procedure of the Commission, a request for provisional measures in favor of Helen Mack Chang and the members of the Myrna Mack Foundation. In said brief, the Commission based its request on several facts that endangered the life and the safety of these persons because “there have been a number of threats and acts of harassment against witnesses, judges, prosecutors, policemen, attorneys, employees of the [Myrna Mack Foundation], and next of kin and friends of [Myrna Mack].”
59. On August 14, 2002, the President ordered adoption of urgent measures, in which he ordered the State to adopt, forthwith, such measures as might be necessary to protect the life and the personal integrity of Helen Mack Chang and of the members of the Myrna Mack Foundation.
60. On August 26, 2002 the Court decided to ratify in its entirety the August 14, 2002 Order of the President and to adopt, forthwith, such measures as might be necessary to protect the life and the personal integrity of Helen Mack Chang, Viviana Salvatierra and América Morales Ruiz, of Luis Romero Rivera and of the other members of the Myrna Mack Foundation.
61. On February 21, 2003, one day after the end of the public hearing held in the instant case, and in connection with a request by the representatives of the next of kin of the victim and the statements by expert witness Iduvina Hernández, the Court decided ex officio to expand the provisional measures. To this end, it ordered the State to adopt such measures as might be necessary to protect the life and personal integrity of the next of kin of Myrna Mack Chang, i.e.: Zoila Chang Lau, the mother; Marco Mack Chang, brother; Freddy Mack Chang, brother; Vivian Mack Chang, sister; Ronald Chang Apuy, cousin; Lucrecia Hernández Mack, daughter; and the latter’s children; as well as that of Iduvina Hernández.
62. On April 17, 2003, the Inter-American Commission filed before the Inter-American Court, pursuant to Articles 63(2) of the American Convention and 25 of the Rules of Procedure, a request for expansion of the provisional measures ordered in this case to protect Jorge Lemus Alvarado, “a witness in the case laid before the domestic courts” regarding the murder of Myrna Mack Chang, and his next of kin. In said brief, the Commission stated that Jorge Lemus Alvarado “has been suffering a number of grave acts of harassment and aggression by agents of the Guatemalan State.”
63. On April 25, 2003, the President of the Court decided to order the State to adopt, forthwith, such measures as might be necessary to protect the life and personal integrity of Jorge Lemus Alvarado and of his next of kin.
64. On June 6, 2003, the Court ratified the April 25, 2003 Order of the President and, in turn, ordered Guatemala to maintain the provisional measures in favor of all the persons protected by the previous Orders.
VI
ACKNOWLEDGMENT OF RESPONSIBILITY BY THE STATE
65. In the instant case there has been a dispute between the parties regarding the acquiescence and the scope of the acknowledgment of international responsibility by the State. For this reason, and in light of the provisions of Article 52 of the American Convention, the Court will decide on the validity and scope of the acquiescence and its juridical effects. To this end, it will now summarize the arguments of the State, as well as the respective pleadings of the Commission and of the representatives of the next of kin of the victim.
Arguments of the State and pleadings of the Inter-American Commission and of the representatives of the next of kin of the victim
66. On March 3, 2000, during a public hearing at the seat of the Commission, the State acknowledged its “institutional responsibility” in the instant case, in the following terms: “[t]he Government acknowledges the institutional responsibility of the State in the murder of Myrna Mack Chang, as well as delay and denial of justice.” At that time, the parties also signed an agreement that laid out certain commitments of the State with respect to the ongoing criminal proceeding under domestic jurisdiction.
67. At said hearing, the State also pointed out that “the new [G]overnment, echoing these situations, has proclaimed that the commitments undertaken in the Peace Accord are State commitments and due compliance with them is not open to question […]”.
68. That same day, in another document issued by COPREDEH, submitted to the Secretariat of the Commission, the State affirmed that:
the Government of Guatemala ratifies and reiterates that in the case of the murder of anthropologist Myrna Mack Chang it is evident, notorious, and there should be no discussion still seeking to question or deny said facts that took place in October, 1990 in the capital city of Guatemala.
[…]
What happened to Anthropologist Myrna Mack and her family is one of the paradigmatic cases ensuing from the our country’s legacy of 36 years of internal warfare, it is the past, in a war in which there was no system of law, nor was there an efficient and effective administration of justice. This is one of the many human rights violations that fatidically took place at that time.
In a certain manner, the context of an internal armed conflict in which the
armed forces developed their own strategies of counterinsurgency and indiscriminate
repression, should be evaluated as a strong probability of subordination of
the administration of justice to military influence, as factors that may have
had an impact on the difficulties and irregularities in the proceeding, and
which the applicant has repeatedly pointed out in the instant case.
The fact that the direct perpetrator of the murder of the anthropologist was,
when he committed the act, a specialist of the Guatemalan Army, as was stated
in the judgment [that found him guilty], in fact entails possible institutional
responsibility of the State, which can also ensue due to the inactivity, delay,
and slowness of the proceeding against other Army officers who have been mentioned,
opened by order of the Supreme Court of Justice.
Without addressing and analyzing the causes which the applicant gives for slow progress of the proceeding begun in February, 1994, the Government of Guatemala accepts and recognizes as a matter of special concern that after 6 years only the investigative phase has been completed, and that the trial hast not yet begun despite the fact that it was opened in January, 1999.
69. As was pointed out before, in Report Nº 39/01 of March 8, 2001, adopted pursuant to the provisions of Article 50 of the American Convention, the Commission reached the conclusion that the acknowledgment of responsibility made by the State has full legal value in accordance with the principles of international law and places it under the obligation to redress the violations committed by it, pursuant to the provisions of the American Convention. The State, one year after having acknowledged its responsibility, has not carried out actions to eliminate the impunity that still covers the accessories of the extra-legal execution of Myrna Mack Chang. The Commission maintains that Guatemala still lacks a serious will to investigate and punish those responsible for the murder of Myrna Mack Chang (supra para. 14).
70. In its May 30, 2001 brief (supra para. 16), in response to Confidential Report 39/01 of the Commission, the State argued that:
The Government of Guatemala […] explicitly and clearly stated that it would not address the causes of the delay, but rather it expressed its concern regarding said delay.
it does not share the view of the Commission (expressed in paragraph 29 of Confidential Report No. 39/01) that “[i]t is the understanding of the Commission that the acknowledgment of responsibility by the Guatemalan State in the instant case necessarily involves acceptance of the central facts alleged and with respect to which the Commission will carry out the respective analysis […],” because the Commission has misunderstood a clear and precise recognition by the State, from which it is not possible to derive extensive implications that seek to include total acceptance of the facts and of the allegations as the applicant does. Acknowledgment of institutional responsibility derived from the fact that a domestic court already established the involvement of an agent of the Presidential General Staff, for which fact he was convicted in the trial. The Supreme Court of Justice also left open a proceeding with respect to the accessories of the murder of Myrna Mack Chang.
[…]
Likewise, the Government of Guatemala rejects the view of the Commission with respect to the acknowledgment by the State covering the following points: the high command of the Presidential General Staff at the time of the facts issued explicit orders to Noel de Jesús Beteta Alvarez, to murder Myrna Mack Chang due to the victim’s professional activities; 2) Members of the high command of the Presidential General Staff at the time of the facts, together with other officials of that Institution prepared a prior plan to murder Myrna Mack; 3) Taking advantage of their positions at the time, or subsequently through their “subterraneous” influences, it is they who have obstructed effective administration of justice in this case.” The State of Guatemala regrets the excessive interpretation that seeks to encompass situations that were not acknowledged by the members of the Guatemalan delegation.
71. The State also objected to the aforementioned points of the Commission’s Report, because:
they were never acknowledged, because if said acknowledgment had existed it would have been contrary to the independence of the branches of the State, since the Political Constitution of the Republic of Guatemala establishes that the function of trying and promoting execution of judgments lies exclusively in the Judiciary Body and the Courts of Law. Furthermore, if an acknowledgment such as that argued by the Commission had existed, the Government of Guatemala would have been pre-judging a matter that is still before the courts of law to be studied, analyzed, and decided.
[…]
[T]he Government of Guatemala does not agree, either, with the view of the Commission that “understands” that acknowledgment of responsibility by the State encompasses: 1) that there was obstruction of justice by agents of the State of Guatemala, especially by members of the Army, with the aim of fostering impunity of the accessories of the murder of Myrna Mack; 2) that there have been threats and intimidation carried out by Agents of the State against witnesses, judges, prosecutors, and other legal operators with the aim of fostering impunity in this case; that there has been negligence and unwillingness of the judicial authorities in processing of the judicial proceeding to try and to punish all those responsible for the murder of Myrna Mack, especially what they say regarding punishment of members of the high command of the General Staff at the time of the facts because they deliberately planned and ordered the execution of Myrna Mack.
The Government of Guatemala never acknowledged said points, but rather it pointed out that they might be “factors with a possible impact on the difficulties and irregularities of the proceeding.”
Finally, in said brief the State asked the Commission for “a modification of the conclusions” to its Report, bearing in mind that they are based on an acknowledgment that was not expressed in those terms.
72. In the application, the Inter-American Commission made the following statements:
[o]n March 3, 2000, the State of Guatemala acknowledged institutional responsibility in the instant case [for] the murder of Myrna Mack Chang, delay and denial of justice [,which] has full juridical value in accordance with the principles of international law […]
It was the understanding of the Commission, interpreting the acknowledgment of responsibility by the Guatemalan State in good faith, that it necessarily entailed acceptance of the central facts alleged by the applicants. Thus, in light of what the State had expressed in its acknowledgment of responsibility and of what is stated in the [...] evidentiary material included in its file, the Commission pointed out that the acknowledgment of responsibility meant, with respect to the right to life, that: 1) It was the high command of the Presidential General Staff at the time of the facts who issued explicit instructions to Noel de Jesús Beteta Álvarez to murder Myrna Mack Chang due to the professional activities of the victim; 2) Members of the high command of the Presidential General Staff at the time of the facts together with other officials of that institution developed a prior plan to murder Myrna Mack; 3) Members of the high command of the Presidential General Staff at the time of the facts, taking advantage of their positions at the time or subsequently through their “subterraneous” influences, have obstructed efficient administration of justice in this case.
With respect to the acknowledgment of responsibility by the Guatemalan State regarding violation of the rights to fair trial and to judicial protection, the Commission, through an interpretation in good faith and in light of what is stated [in the] existing evidentiary material, pointed out that the acknowledgment of responsibility by the Guatemalan State entailed: 1) that there has been an obstruction of justice by agents of the Guatemalan State, especially by members of the army, to foster impunity regarding the accessories of the murder of Myrna Mack; 2) that there have been threats and acts of intimidation by agents of the State against witnesses, judges, prosecutors and other legal operators with the aim of fostering impunity in this case; 3) that there has been negligence and unwillingness of the judicial authorities in the processing of the judicial proceeding to try and to punish all those responsible for the murder of Myrna Mack, especially with regard to punishing the members of the high command of the Presidential General Staff at the time of the facts, as it was they who deliberately planned and ordered the execution of Myrna Mack […]
In light of the information provided by the Guatemalan State on May 29, 2001, the State seeks to go against the scope of the acknowledgment of responsibility made by the State itself on March 3, 200[0] and the interpretation made by all the parties to the case and the Commission in good faith. The [Commission] notes that the conclusions it reached in Confidential Report No 39/01 and which it reaffirms in the instant application did not derive only from the acknowledgment of responsibility by the Guatemalan State, but rather that the Commission reached those conclusions after an exhaustive investigation of the various items of evidence supplied by the parties […] Nevertheless, the State complied neither with its international obligations derived from its acknowledgment of responsibility nor with the recommendations made by the Commission in its Report No. 39/01.
73. In its reply to the application of September 26, 2001, the State reiterated several of the arguments made in its last brief before the Commission; it asked that the application be deemed answered “negatively regarding the non-disputed parts of [said] brief and those on which it did not state an explicit acknowledgment.” Furthermore, it requested that based on the preliminary objections raised, the Court rule the application filed by the Commission inadmissible (supra para. 25).
74. In its brief with observations on the preliminary objections, the Commission argued that in its application it interpreted in good faith the acknowledgment of responsibility by the State and it understood that the scope of the latter necessarily involved acceptance of the “central facts” alleged by the applicants. In addition, that both in its May 29, 2001 brief and in its brief on preliminary objections, the State once again disavowed its explicit acknowledgment of responsibility and raised an objection regarding the competence of the Court, thus contradicting its previous position. The Commission also requested that the preliminary objections raised by the State be rejected for lack of legal and factual grounds (supra para. 26).
75. As was summarized above (supra para. 40), on February 14, 2003, the State submitted a new brief requesting that the public hearing be called off, and at the same time explaining the scope of the acknowledgment of institutional responsibility, and it affirmed that:
[…] it has decided to maintain and reiterate before [the Inter-American Court of Human Rights], in the same and literal terms stated before the Inter-American Commission on Human Rights in March, 2000, the international acceptance of its Institutional Responsibility in the Myrna Mack Chang case No. 10,636.
76. With respect to the aforementioned brief, on February 17, 2003 the Commission stated that the institutional acknowledgment by Guatemala “reproduces the terms of the acknowledgment of responsibility on March 3, 2000, prior to the decision by the [Commission] to submit the case to the jurisdiction of the [...] Court,” and that said acknowledgment “is not generic but partial and therefore it does not tend to fully elucidate the facts, nor is it an effective remedy for the violations that are the object of the application filed by the Commission.” Furthermore, the Commission deemed that “fully establishing the facts in [this] case, partly acknowledged by the State as not having been elucidated, constitutes a fundamental function of international monitoring, because it makes it possible to establish the truth of what happened through the inter-American system [...]”. Therefore, the Commission asked the Court to continue processing the case, to determine the scope of the acknowledgment of responsibility of the State and the facts that gave rise to the application; to determine the violations to the American Convention; and to order the appropriate reparations (supra para. 41).
77. The representatives of the next of kin of the victim, in turn, stated -referring to the February 14, 2003 brief by the State- that the “acknowledgment” made by the State is a “generic and vague” acquiescence that intends to “leave the case without substance” and “force the Court to move directly into the reparations stage,” without allowing the Court to rule on a number of facts directly pertaining to the merits of the instant case. They also stated that, “after twelve years, the next of kin of the victim and Guatemalan society have the right to obtain more than a presumption of responsibility […] they have a right to the truth through full elucidation of the facts” (supra para. 41).
78. On February 18, 2003, during the preliminary meeting with the parties prior to the public hearing summoned for that same day, the State submitted a “brief modifying the answer of the State of Guatemala to the application filed by the Inter-American Commission on Human Rights in the Myrna Mack Chang Case No. 10,636 of July 26, 2001” (supra para. 42), in which it reiterated several arguments made in its answer to the application and, furthermore, stated the following:
as a consequence of what it has stated before the [...] Commission [...] on March 3, 2000 and of partial ratification of the answer to the application made in the immediately preceding section of this brief, it must desist from the preliminary objections raised on September 26, 2001 […].
With respect to the preliminary objection regarding erroneous and extensive interpretation of the acknowledgment made by the State, it pointed out that it desisted from it “because it was filed as preliminary” objection, but asked the Court to take its content into account when it issues its judgment on the merits.
79. In addition, in said brief the State established that it accepted the following facts:
a) Violation of the rights to life, to humane treatment and dignity of the
human person committed against Myrna Mack Chang on September 11, 1990, for which
Noel de Jesús Beteta Alvarez was convicted by a competent Court that found him
guilty of being the direct perpetrator, and that same court identified him as
an agent of the State at the time he committed that act.
b) The institutional responsibility of the State for the infringements of the
law incurred by the agent of the State Noel de Jesús Beteta Alvarez in the aforementioned
facts, pursuant to Article 155 of the Political Constitution of Guatemala.
c) The institutional responsibility of the State when, in non-compliance with
Article 3 of the Political Constitution of Guatemala [...] and Article 4 of
the American Convention […], it did not ensure the right to life and to humane
treatment of Myrna Mack Chang.
d) The institutional responsibility of the State for the slow progress of the
proceeding in which [...] there was evidently:
• Slow progress of the proceeding that began in February, 1994, to identify
and punish the accessories of the violation of the right to life of Myrna Mack
Chang;
• Unexplainable delay in a judiciary proceeding, stated above, that surpassed
the reasonable term set forth in paragraph 1 of Article 8 of the American Convention
[…];
• Violation of the rights of applicant Helen Mack Chang to access to justice
and to respect for the principles of due process and the guarantees set forth
in that same first paragraph of Article 8 of the American Convention […].
80. The State, in turn, pointed out that it was making “a partial acceptance of the facts alleged by [Helen Mack Chang], as the latter alleges other [facts] that the State of Guatemala is not institutionally able to accept, such as all those that the Commission has interpreted extensively, in its own manner […].” Derived from the above, the State “can neither ignore nor deny the rights that applicant Helen Mack Chang […] has in substantive and procedural terms.” The State also expressed that:
it is necessary to place on the historical record that the State of Guatemala cannot, based on the acknowledgment of the aforementioned institutional responsibilities, violate the independence of its domestic legal system, and it is not able to decide on the measures of reparation without facing its internal audit and oversight system regarding management of public resources by the General Comptrollership. The above entails the need for said determination to be made by issuing of a judgment by a competent judicial body, either domestic or international, or –if there were the possibility of a friendly settlement approved by a competent authority- an agreement that could be discussed with applicant Helen Mack Chang.
81. Finally, the State pointed out that it submits to the international jurisdiction of the Court for “[d]efinition of the scope of its institutional responsibility in the instant case and the effects derived from it regarding reparations;” that it was appropriate for the Court to continue the reparations stage of the proceeding, and that the public hearing summoned was unnecessary.
82. At the start of the public hearing on February 18, 2003, the State reiterated orally its waiver of all the preliminary objections and it expressed that:
[…] the State of Guatemala deemed it necessary to modify its July 26, 2001 answer to the application, and therefore the object of that modification of the answer to the application is as follows: first, it ratifies what it stated at that time regarding the actions of the State of Guatemala before the Inter-American Commission on Human Rights. That is to say, it ratifies the acknowledgment of responsibility made before the Commission and it ratifies its willingness to establish a committee to monitor and further the domestic criminal proceeding taking place at the time in Guatemala, with the known consequences, that it failed for lack of cooperation by certain bodies the Guatemalan State. Second, it modifies the reply to the application in terms of waiving all preliminary objections raised by the State of Guatemala when it answered the application. Third, it modifies the answer to the application, accepting the facts alleged by the applicant and the Inter-American Commission on Human Rights regarding that same responsibility that the State has with respect to the violations of the right to life of Myrna Mack Chang and denial of justice to applicant Helen Mack Chang. The State of Guatemala explains that it does not refer to the causes or motives stated by the distinguished applicant regarding that denial of access to the system of justice and the violations that may have occurred regarding the principle of due process. Fourth, it accepts the rights of the next of kin of the victim, especially of applicant Helen Mack Chang, and finally, it modifies the answer to the application by expressing that the State of Guatemala reiterates its submission to the international jurisdiction of the […] Inter-American Court of Human Rights for it to decide on the scope of this acknowledgment and, subsequently, to establish the measures of reparation.
[…]
Ratification of the aforementioned aspects is based on the following: even though the Head of State represents national unity according to the Political Constitution of the Republic of Guatemala, the Head of State cannot take on judicial powers, even less so when there is a domestic proceeding that, while slow, institutionally cannot be invaded by the competence of other bodies of the State, circumstances that in any case are to be judged by the […] Inter-American Court of Human Rights. Secondly, intervention by the Inter-American Commission on Human Rights [before] this […] Court is legitimate insofar as it will be, as said Commission has also stated, for this [...] Court to rule on the international responsibility of the State in the facts that gave rise to this case and not on the wrongdoing, guilt and possible responsibility of individuals subject to the jurisdiction of the domestic legal system in Guatemala, a statement made by the Inter-American Commission in its reply to the objections filed. Therefore, the State of Guatemala waives all the preliminary objections raised in its original answer to the application on June 26, 2001. With respect to the last objection, defined as the erroneous and extensive interpretation of the acknowledgment made by the State of Guatemala, it is necessary to emphatically state that, for true hearing of the instant case, it follows from the statement above that while the State waives the last objection, it does so because it was filed as a preliminary objection. It does not desist thereof because it disagrees with its substantive arguments, which have been reiterated above, and for them to be taken into account when the judgment on the merits in the instant case is issued.”
83. During said public hearing, the representatives of the next of kin of the victim referred to the expressions of the State, arguing that it is enabled to “admit its complicity” regarding the acts of its bodies without this involving prejudgment of the rights of specific individuals. Said representatives also pointed out several facts pertaining to the death of Myrna Mack Chang and the investigation and criminal proceeding that, in their opinion, the State did not mention in its acknowledgment of responsibility and that it is necessary to determine so as to establish the truth in this case.
84. In turn, during the public hearing the Inter-American Commission stated that the partial acknowledgment of responsibility by the State before the Court had already occurred before the Commission; that said acknowledgment is based on the Political Constitution of the State and not on International Law; that it does not clearly establish the facts for which it deems that it is responsible; and that it does not specify the rights that it acknowledges were breached. The Commission also pointed out that the Court could consider the scope of this partial and generic acknowledgment when it issues its judgment on the merits.
85. That same day, February 18, 2003, the Court issued an Order in which it established that the State had waived all the preliminary objections raised in its answer to the application; that there continued to be a dispute between the parties regarding the scope of the acknowledgment of responsibility by the State regarding the facts and the rights; and that “partial acceptance of the facts and the rights” expressed by the State did not interrupt the process of receiving the evidence ordered. Therefore, it decide to admit, for all relevant effects, the waiver by the State of the preliminary objections that it had raised, and to continue with the public hearing that was summoned (supra para. 45).
86. On the second day of the public hearing, February 19, 2003, after the first four witnesses had been heard, the State expressed that:
yesterday it accepted, and it respected, rather than accepted, the decision of this [...] Court to continue the public hearing to receive testimonial evidence and expert opinions. The State of Guatemala also noted carefully the content of said statements and it has reached the conclusion that said statements do not refer to disputed facts and, on the other hand, they include points that are still being heard by the domestic legal system in Guatemala. As men of State, the representatives of Guatemala cannot remain in the hall to listen to testimony on facts on which our legal system has not yet decided. Therefore, with all due respect for this […] Inter-American Court of Human Rights and for the representatives of the victim and the representatives of the Inter-American Commission on Human Rights, the State of Guatemala has decided to withdraw from this stage and it will be present at the conclusion of the public hearing to state its final position with respect to this hearing. In this regard, we wish to ask permission of this Honorable Court to allow us to leave the hall.
After these statements, in connection with the expressions of the Agent of the
State, the President of the Court, Judge Cançado Trindade, read the provisions
regarding inaction by the parties, set forth in Article 27, paragraphs 1 and
2 of the Rules of Procedure, and he advised the parties of the need for the
State to be present at the appropriate time to present its final pleadings at
the public hearing. The Agents of the State then withdrew from the public hearing,
but in accordance with the indications of the President of the Court, they returned
to the hearing at the appropriate time to present the final oral pleadings of
the State (supra para. 46).
87. During the public hearing, on February 19, 2003, the Ministry of Foreign Affairs of Guatemala issued a press release entitled “[e]l Estado de Guatemala contribuye a la justicia en el Caso Mack Chang aceptando la responsabilidad institucional ante la Corte Interamericana de Derechos Humanos” [“[t]he State of Guatemala contributes to justice in the Mack Chang case accepting institutional responsibility before the Inter-American Court of Human Rights”], in which it stated the following:
The Rules of Procedure de the Inter-American Court of Human Rights refer –in
Article 52- to the general principle according to which a respondent State before
this Court may inform the Court of its acquiescence to the claims of the applicant
parties, that is, it may decide to accept its responsibility in the case being
heard. […] Applying this principle, on last February 14, the State of Guatemala
officially communicated to the [...] Court its decision to accept its institutional
responsibility in the Myrna Mack Chang Case No. 10,636.
[…] Taking into account the practice of the Inter-American Court in all previous
cases in which a respondent State accepted institutional responsibility, and
based on the reasoning that this action by the State in fact concludes the evidentiary
stage, the Government asked [the] Court to continue processing of the case by
moving into the reparations stage foreseen in the proceeding.
On February 18, when they appeared before the Court, the Agents of the State of Guatemala ratified the acknowledgment of institutional responsibility for violation of the right to life of Myrna Mack Chang and for violation of the right of access to justice of the next of kin of the victim.
Despite said acknowledgment, which the State deemed sufficient for the respective judgment to be issued, the Honorable Court decided to continue the case hearing by receiving testimony regarding facts that are no longer disputed, in view of the acceptance of responsibility by the respondent State.
In face of this situation, deeming that they had fulfilled their role and their legal and historical responsibility before the Inter-American system for the protection of human rights, the Agents of the State of Guatemala decided, having received the consent of the [...] Court, to withdraw from the evidence-gathering stage to return at the appropriate time in the [...] hearing to present their final position regarding this case.
The State of Guatemala regrets that the good faith of its acknowledgment of the human rights violations by agents who compromised its institutional responsibility has not been fully appreciated and that, instead, it has been subjected to repetitive statements regarding facts that have already been accepted and others that are still being heard under domestic legal jurisdiction in Guatemala.
88. Having heard the testimony and expert opinions at said public hearing, on February 20, 2003 the State expressed in its final oral pleadings:
[w]e refrained from examining any of [the witnesses and expert witnesses] because we deem that after the acknowledgment of the State, reiterating its responsibility in the instant case, there is no dispute on the facts and points to which their statements referred. It is important to underline that the points on which testimony was rendered coincide with the acknowledgment by the State, for which reason, since they are not disputed facts, all we can do is await a judgment on the merits and a judgment on reparations, that this Honorable Court will issue.
89. In addition, with respect to a question asked by Judge Salgado Pesantes, on “whether there truly is an acquiescence by the State pursuant to the aforementioned Article 52 of the Rules of Procedure,” the State replied:
your honor, in accordance with juridical doctrine and the international rulings issued, no. Acquiescence is not in order when there is no explicit authorization by a State for its Agents. That authorization does not exist.
90. At the end of said hearing, the Inter-American Commission, in turn, stated that:
the State of Guatemala withdrew its preliminary objection regarding non-exhaustion of domestic remedies. Therefore, the issue of whether there are currently ongoing domestic proceedings in Guatemala is not being discussed, today, in the proceeding.
Second, we wish to point out that we are going to include in the procedure official communiqué 032-2003, entitled “el Estado de Guatemala contribuye a la justicia en el caso de Mack Chang aceptando la responsabilidad institucional en la Corte Interamericana,” where Article 52 of the Rules of Procedure is invoked, stating that it is an “acquiescence.” [S]uch a statement, if it is not denied, if it was not of course falsified, has a juridical value. It is an official statement that is expressly communicated within Guatemala. That is also why these proceedings are important and why we have insisted on the value of the official truth being told. Because if we are told that there is a simple, pure, unconditional acknowledgment, then partial acknowledgment, then acquiescence, and this is communicated, it appears as if the applicants for the victims have adopted a recalcitrant position. Yesterday we heard that it was not an acquiescence and not even absolute acknowledgment, and even now this statement invokes Article 52.
91. On February 24, 2003, the Minister of Foreign Affairs of Guatemala addressed a note to the President of the Court, in which he referred to the “true scope of the acknowledgment of responsibility by Guatemala in the Mack Chang case” (supra para. 47) and he stated:
[…] when I signed the note that I sent on February 14 of this year, I was not aware that the persons to whom I entrusted the drafting misinterpreted my instructions and, therefore, incurred in an unfortunate mistake when they limited the acceptance of international responsibility by Guatemala in the instant case to “the same and literal terms set forth before the Inter-American Commission on Human Rights in March, 2002.”
The instructions I gave in this regard were to simply and straightforwardly acknowledge the facts set forth in the application and, pursuant to the general principle stated in Article 52 of the Rules of Procedure of the Court, to inform [this] Court that Guatemala unconditionally accepted its international responsibility in the case.
I regret that this misunderstanding has caused the erroneous interpretation of my instructions by the Agents of the State of Guatemala, thus giving rise to questioning of the true scope of the acceptance of international responsibility in the Myrna Mack case (furthermore, the controversy regarding this case was extended by the fact that the Representatives of the State temporarily –and also unnecessarily- left the hearing, although I have been informed that they did so with your authorization. In Guatemala, however, this created the false impression that the State was in contempt of the Court).
Given these special circumstances, I wish to request [...] that the true will of the Government of Guatemala, expressed in the instant brief, to acquiesce absolutely, be recorded in the case file.
92. With respect to the aforementioned brief by the State, on March 3, 2003 the Commission filed its observations on that brief (supra para. 47), pointing out that Article 52 of the Rules of Procedure invoked by the State refers to the object of the acquiescence, for which reason the Commission interpreted that:
given the advanced stage of the proceeding, the February 24, 2003 acquiescence of the State does not only encompass the facts referred to in the application, but also all those that have been duly established by the Commission and by the representatives of the alleged victim in the various procedural stages, and specifically those proven in the public hearing.
The Commission also deemed it “crucial” for the Court to expressly issue a ruling on the scope and effects of the acquiescence and to establish that said acquiescence, to be valid, must encompass both the claims stated in the application and the facts proven and the requests made in the public hearings before the Court.
93. That same day, the representatives of the next of kin of the victim, in turn, submitted their observations on the February 24, 2003 brief by the State (supra para. 47), and they asked the Court to rule that said communication is not an acceptable acknowledgment of responsibility under the terms required by Article 52 of the Rules of Procedure of the Court. They deem that said brief “does not state anything substantive regarding the acquiescence and merely invokes said term as if that circumstance, in and of itself, was sufficient to fulfill the requirements of Article 52 of the Rules of Procedure.” They deemed that “an absolute acquiescence” consists of complete and unconditional acceptance of the facts and arguments alleged in the application by the next of kin of the victim and proven during the trial and, insofar as the State does not admit them, the dispute among the parties continues and “it must be decided by a ruling of the Court on the merits of the case.” In conclusion, they asked the Court:
unless the State sends a complete, unconditional and unqualified acceptance of the facts alleged and proven by the representatives of the next of kin of the victim and by the Commission, […] and a total acknowledgment of its international responsibility for the human rights violations committed, as they have been alleged and proven, its request must be turned down and the Court must decide on the merits of the matter.
94. On March 3, 2003, at the seat of the Court, the President of the Court, Judge Cançado Trindade, received the Minister of Foreign Affairs of Guatemala, Edgar Gutiérrez, who personally delivered to him the brief entitled “documento aclaratorio del reconocimiento de responsabilidad internacional por parte del Estado de Guatemala en el caso 10.636 ‘Myrna Mack Chang’” [document clarifying the acknowledgment of international responsibility by the State of Guatemala in the ‘Myrna Mack Chang’ case No. 10,636,” and he explained its content to him (supra para. 48). In said document, the State:
decided, inter alia, pursuant […] to Article 52 of the Rules of Procedure of the Court, to unconditionally accept the international responsibility of the State of Guatemala in the Myrna Mack Chang case. Therefore, he communicated to this [...] Court the acquiescence of Guatemala to the claims of the applicant party.
[…]
Pursuant to the general principle set forth in Article 52 of the Rules of Procedure of the Court, the State of Guatemala acknowledges the facts stated in the application and it unconditionally accepts its international responsibility in the instant case.
Recognition of the violation, in the instant case, of fundamental rights such as the right to life, the right to humane treatment, the right to judicial protection and the right to be heard with due guarantees by a competent judge or court entails, on the one hand, the responsibility already accepted by the State of Guatemala and, on the other, the obligation to investigate the facts that caused the violations, to punish those responsible, and to provide reparation for the damage caused by that grave violation.
[T]he State of Guatemala is willing to promptly, adequately and effectively comply with the pecuniary and non-pecuniary reparations decided at the appropriate time by the […] Court.
95. The State also asked the Court, “[p]ursuant to the instant acknowledgment of responsibility,” to disregard the arguments included in the brief answering the application, with respect to reparations for the damage and violation of Article 4 of the Convention. The State also expressed that:
[t]he international responsibility and, therefore, the obligation to redress, pursuant to the provisions of the American Convention […] in this case fall on the State and not on the accused persons who may be found responsible.
[…]
[R]egarding the issue of international responsibility it deems that, in principle, the State (any State) is responsible for violation of its obligations, without necessarily identifying the component of malice or negligence by its agents. In other words, without the necessity of “guilt” or negligence by the person who acted.
[…]
With respect to the issue of the individual responsibility that may fall to the persons mentioned in the application, the State […] deems that the […] Corte and the Inter-American Commission are not competent to rule on the matter, because this is the exclusive responsibility of the Guatemalan authorities.
The State also reiterated “that, in the instant case, excessive delay in the criminal proceeding seriously breaches reasonable term, especially taking into account, in addition to the specifics of the case, the juridical rights, obligations, and values at stake.”
96. Finally, the State pointed out that:
[t]he fundamental purpose of this presentation [...] has been to explain the mistake committed in the note address[ed] to you on February 14 and, specifically, in the presentation by the State of Guatemala before the […] Court at the public hearing held on February 18 of this year. In other words, the only purpose of this presentation is to clarify what was the true intention of the State of Guatemala when it acknowledged international responsibility before the […] Court in case 10,636.
Finally, the Minister of Foreign Affairs apologized for the problems caused by “the mistake regarding the acknowledgment of responsibility by the State of Guatemala.” The President of the Court, in turn, thanked the Minister of Foreign Affairs for his visit and informed him that the brief delivered would be immediately included in the case file. He also stated that the oral stage of the case had concluded, for which reason the case was in the judgment stage.
97. On March 14, 2003, the Commission filed its observations on the brief by the State mentioned in the previous paragraph, reiterating several of its previous arguments (supra para. 49). The Commission also expressed that:
it appreciates the acquiescence of the State but, due to the procedural stage of the case, it deems it insufficient. The Commission notes that the acquiescence of the State refers to the facts stated in the application, excluding those contained in the brief filed by the representatives of the victim, which complemented the application and reinforced the conclusions of the [Commission], as well as all those duly established at the public hearing before the [...] Court.
The Commission also reiterated its request for the Court to render judgment on the merits in the Myrna Mack Chang case, expressly ruling on the scope and juridical effects of the acquiescence by the State, applying the authority given to it by Article 52(2) of the Rules of Procedure, to ensure legal certainty.
98. On March 14, 2003, the representatives of the next of kin of the victim, in turn, also submitted their observations on the March 3, 2003 brief by the State, in which they reiterated their previous arguments (supra para. 49). They also deemed that this brief by the State is a “new attempt to avoid a ruling by this [...] Court on the merits of the case” and that the State seeks to accept only the juridical consequences derived from the facts, and not the facts established in the application filed by the Commission, in the brief filed by the representatives of the next of kin of the victim and at the public hearing, which contradicts the case law of the Court regarding Article 52 of its Rules of Procedure. Therefore, they asked the Court to reject the acquiescence of the State and to issue a judgment on the merits and reparations to ensure the principle of legal certainty. Finally, they pointed out that in case “the expressions of the State [...] are deemed a satisfactory acquiescence under the terms of Article 52, […] in accordance with the case law of the Court, [this] does not impede the Court ruling on the merits of the case.”
99. In the brief with its final pleadings, the Commission reiterated its request to the Court regarding the need for it to rule on the scope and the effects of the acquiescence of the State (supra para. 52) and pointed out that:
[...] given the various positions adopted by the State during the processing of the case before the Inter-American System for Protection of human rights, as regards the scope of its acceptance of responsibility, the Commission deems that a clear and express ruling by the [...] is necessary to ensure the principle of legal certainty [...]
100. In the brief with the final pleadings (supra para. 51), the representatives of the next of kin of the victim argued that:
[t]he State presented [...] various positions with respect to its “acknowledgment of institutional responsibility” or “acquiescence”. Despite [that], the State has never accepted the central facts set forth in our application and in the application by the [...] Commission, or the facts proven at the public hearing, such as the responsibility of the Presidential Security Department of the Presidential General Staff in the murder of Myrna Mack and the denial of justice. Given the procedural stage of the case and the State’s pattern of behavior of withdrawing or “reinterpreting” its statements of responsibility, the representatives of the next of kin of the victim, based on the case law of this [...] Court, deem that a general acquiescence is insufficient [...].
Therefore, they asked the Court to issue a judgment on the merits in which it rules on the scope of the acknowledgment of responsibility by the State.
3) Considerations of the Court
101. Article 52(2) of the Rules of Procedure provides that:
[i]f the respondent informs the Court of its acquiescence to the claims of the party that has brought the case, the Court, after hearing the opinions of the other parties to the case will decide whether such acquiescence and its juridical effects are acceptable. In that event, the Court shall determine the appropriate reparations and indemnities.
102. Article 54 of the Rules of Procedure of the Court provides that:
[t]he Court, may notwithstanding the existence of the conditions indicated in the preceding paragraphs, and bearing in mind its responsibility to protect human rights, decide to continue the consideration of a case.
103. The Court will now state certain considerations pertaining to the scope of the acquiescence by the State and, therefore, its acknowledgment of international responsibility in the instant case. These considerations will be made in view of the fact that throughout the proceedings before the bodies of the inter-American system for protection of human rights, the State has several times given different extent to its acknowledgment of international responsibility.
104. First of all, the Court, exercising its adjudicatory function, applies and interprets the American Convention and, when a case has been brought before its jurisdiction, it has the authority to find that a State Party to the Convention has incurred international responsibility by violating its provisions. On the other hand, as it has reiterated before, this Court does not investigate or punish the individual behavior of the Agents of the State who may have participated in said violations.
105. Second, the Court, exercising its inherent authority of international protection of human rights, can establish whether an acknowledgment of international responsibility by a respondent State offers sufficient basis, in terms of the American Convention, to proceed or not with its hearing on the merits and establishment of possible reparations. To this end, the Court will analyze what has been stated in the specific case.
106. Article 52 of the Rules of Procedure refers to a situation in which a respondent State informs the Court of its acquiescence regarding the facts and the claims of the applicant party and, therefore, accepts its international responsibility for breaching the convention, in the terms set forth in the application, a situation that would give rise to early termination of the proceeding regarding the merits of the matter, as set forth in chapter V of the Rules of Procedure. The Court notes that with the provisions of the Rules of Procedure that entered into force on June 1, 2001, the application brief includes the considerations regarding the facts and the points of law as well as the claims regarding the merits of the matter and the requests for the respective reparations and legal costs. In this regard, when a State acquiesces to the application, it must clearly state whether it does so only regarding the merits of the matter, or whether it also includes reparations and legal costs. If the acquiescence refers only to the merits of the matter, the Court will consider whether it will continue with the procedural stage of determining reparations and legal costs.
107. In light of the evolution of the system for the protection of human rights, where the alleged victims or their next of kin can today autonomously submit their brief with requests, pleadings, and evidence, and wield claims that may or may not coincide with those of the Commission, when there is an acquiescence it must clearly state whether the claims made by the alleged victims or their next of kin are also accepted.
108. On the other hand, the Rules of Procedure of the Court do not establish any specific moment for the respondent party to state its acquiescence. Therefore, if a State resorts to this procedural act at any stage of the proceeding, this Court, after hearing all the parties, must evaluate and decide its scope in each specific case.
109. The State has submitted several briefs with the intention of defining the scope of its recognition of international responsibility. This Court specifically notes that on March 3, 2003, at the seat of the Court, the Minister of Foreign Affairs of Guatemala gave to the President of the Court a brief in which he clarified the terms of the acquiescence of the Guatemalan State in terms of “unconditionally accepting international responsibility in the Myrna Mack Chang case” and he apologized for the problem caused by “the mistake regarding the acknowledgment of responsibility of the State” (supra paras. 48 and 94).
110. The Commission and the representatives of the next of kin of the victim, in turn, have at all times objected to acceptance of the acquiescence by the State and have asked this Court to establish the facts and the violations to the American Convention. Among other expressions, they have asked the Court to rule on the scope and the effects of the acquiescence (supra paras. 76, 77, 83, 84, 92, 93 and 97 to 100).
111. The Court, taking into account the authority granted to it by Article 52(2) of its Rules of Procedure, takes note of the total and unconditional acquiescence of the respondent State (supra para. 94), which encompasses all the facts stated in the application; exercising that same authority under its Rules of Procedure, the Court also takes into account the requests both of the Inter-American Commission and of the representatives of the next of kin of the victim, in terms of specifying the scope and the juridical effects of said acquiescence (supra para. 110).
112. The Court deems it appropriate to take into account, based on the authority granted to it by Article 54 of its Rules of Procedure, other elements that allow it to establish the truth of the facts and, therefore, their juridical assessment, exercising its responsibility to protect human rights and applying, to this end, the pertinent provisions of conventional and general international law.
113. In light of the above, the Court takes into account, in addition to and alongside the acquiescence of the State, the testimony and expert opinions rendered at the public hearing before this Court, the body of evidence supplied by the Commission, by the representatives of the victim and by the State, the evidence included by the Court to facilitate adjudication, among others, the Report of the Historical Truth-Finding Committee entitled “Guatemala, memoria del silencio” (CEH), the report of the Archbishop’s Human Rights Office for the recovery of historical memory, entitled “Guatemala: Nunca más: los mecanismos del horror” (REMHI).
114. After examining all these elements, the Court deems that the international responsibility of the State has been established for violations of the American Convention in the instant case, a responsibility that is worsened by the circumstances under which the facts of the cas d’espèce took place.
115. Since the Court deems that said acquiescence does not encompass reparation of the consequences derived from the violations to the rights protected by the Convention that were established in the instant case, the Court –applying Article 63(1) of the American Convention- will establish the pertinent reparations and legal costs.
116. The Court also deems that given the nature of the instant case, issuing a judgment that addresses the merits of the matter constitutes a form of reparation for the victim and her next of kin and, in turn, is a way to avoid recidivism of facts such as those suffered by Myrna Mack Chang and her next of kin.
VII
THE EVIDENCE
117. Before beginning its examination of the evidence received, the Court will analyze, in light of the provisions of Articles 43 and 44 of the Rules of Procedure, certain considerations that are applicable to the specific case, most of which have been developed in the case law of the Court.
118. The principle of the presence of parties to a dispute applies to evidentiary matters, and it involves respecting the parties’ right to defense. This principle is one of the foundations for Article 43 of the Rules of Procedure, regarding the time when evidence must be offered for there to be equality among the parties.
119. According to the usual practice of the Court, at the start of each procedural stage the parties must state, at the first opportunity granted them to go on record in writing, what evidence they will offer. In addition, exercising its discretionary authority set forth in Article 44 of its Rules of Procedure, the Court may ask the parties to submit additional evidence to facilitate adjudication of the case, without this possibility granting them a new opportunity to expand or complement their pleadings or to offer new evidence, unless the Court were to allow this.
120. The Court has also stated before, regarding receipt and assessment of the evidence, that procedures before the Court are not subject to the same formalities as in domestic judicial proceedings, and that inclusion of certain items in the body of evidence must be done paying special attention to the circumstances of the concrete case, and bearing in mind the limits defined regarding respect for legal certainty and procedural balance among the parties. In addition, the Court has taken into account that international case law, deeming that international courts have the authority to appraise and assess evidence based on the rules of competent analysis, has always avoided rigidly determining the quantum of evidence necessary as the basis for a ruling. This criterion is especially valid with respect to international human rights courts, which –to establish the international responsibility of a State for violation of the rights of a person- have ample flexibility in assessment of the evidence submitted to them regarding the pertinent facts, in accordance with the rules of logic and based on experience.
121. Based on the above, the Court will now examine and assess the set of items
that constitute the body of evidence in the case, following the rules of competent
analysis, within the relevant legal framework.
A) DOCUMENTARY EVIDENCE
122. When it submitted its application, the Commission attached as evidence 52 annexes (supra para. 18). Subsequently, the Commission submitted copies of other documents, such as press release No. 032-2003 2003 of the Ministry of Foreign Affairs of Guatemala, of February 19, a copy of the October 3, 2002 judgment issued by the Third Criminal Court of Guatemala, a copy of the May 7, 2003 ruling of the Fourth Chamber of the Court of Appeals of Guatemala and a copy of several press releases and other newspaper reports in connection with the Mack Chang case (supra para. 18).
123. In its brief with requests, pleadings, and evidence, the representatives
of the next of kin of the victim offered as evidence numerous documents included
in 162 annexes (supra para. 24). In the brief with observations on the preliminary
objections, said representatives also included copies of various court orders
and actions and in the brief with the final pleadings they attached several
annexes pertaining to vouchers for expenses (supra paras. 27 and 51).
124. The State, in turn, attached several annexes to its brief answering the
application and filing preliminary objections (supra para. 25). Subsequently,
it submitted copies of the writ of indictment and of the order for the trial
to commence against the alleged accessories in said criminal proceeding.
125. As evidence to facilitate adjudication of the case, the Court received
the rate of variation of the consumer price index in Guatemala from 1998 to
the present and the life expectancy indexes in said country from 1990 to the
present, submitted by the Commission, the representatives of the next of kin
of the victim and the State (supra para. 55). It also received copies of several
procedural actions from the file of the ongoing criminal proceeding under domestic
jurisdiction, filed by the representatives of the next of kin of the victim
and by the State; and the birth certificate of Vivian Mack Chang submitted by
the Commission and by said representatives. The representatives of the next
of kin of the victim also forwarded a certificate of the marriage of Myrna Mack
Chang and Víctor Hugo Hernández Anzueto and the marital status certificate of
Myrna Mack Chang at the time of her death (supra paras. 55 and 57).
126. Pursuant to the Order of the President (supra para. 35), Carmen de León-Escribano Schlotter and Clara Arenas Bianchi submitted their statements in writing and Bernardo Morales Figueroa submitted his expert opinion in writing, all of them made before a notary public (supra para. 37). The Court will now summarize the significant parts of said statements:
a. Sworn statement by Carmen de León-Escribano Schlotter, a sociologist
The displaced population in Guatemala was a consequence of the armed domestic conflict. The displaced and refugee population fled their place of origin out of fear of losing their lives, due to ideological, political, religious or ethnic persecution. During the 1980s, the first civilian government established a special committee for refugees, the Comisión Especial de Atención a Refugiados (CEAR) and in 1987 a decision was reached for CEAR to also address the needs of returning citizens and displaced persons.
CEAR’s relationship with Myrna Mack Chang was in connection with her research on internally displaced persons. Staff members of the Committee accompanied her on her visits to the area known as the Ixil Triangle. The Army controlled those visits. CEAR proposed to AVANCSO that they conduct a study to define the profile of the displaced population. Myrna Mack Chang’s work made evident the presence of the military and the role played by the army with respect to the issue of displaced persons.
b. Sworn statement by Clara Arenas Bianchi, founder of AVANCSO
Myrna Mack Chang was a member of the board of directors of the Asociación para el Avance de las Ciencias Sociales (AVANCSO), through which she carried out a study on internally displaced persons and coordinated it when she obtained funding from Georgetown University. Myrna Mack Chang focused her work specifically on institutional policies regarding internally displaced persons.
In addressing the issue of internally displaced persons, Myrna and her team entered into a reality unknown to Guatemalans who were unaware that almost a million persons had been displaced as a consequence of the domestic strife. She worked intensely in the area of Alta Verapaz, especially in the municipalities of Cobán and Quiché, in a highly militarized context, as the Army received them in the communities, which were subject to a strict control of their population, deeming them to be insurgents. At that time, the Army had launched scorched earth policies. Myrna and her team always went before the civil and military authorities to explain their presence in the towns and to request information.
At the United Nations International Conference on Central American Refugees, the draft of the report on the research carried out by Myrna was widely distributed, and it was then that the existence of a segment of displaced population was formally recognized.
Her work offered a typology of displaced persons taking into account the forms and destination of their displacement, an assessment of the material and psychological conditions of the persons who returned to the militarized zones, and a proposal on minimum conditions required for a viable process of return and integration, and she even proposed demilitarization of the area. Thus, she made information on an unknown segment of the population available to the public, raising questions on the presence of the Army in areas where there was a confrontation with the guerrilla forces to control the territory.
While preparations were underway to publish this study, Myrna began another one on the problems of returning citizens and their integration and viability, regarding both displaced persons and refugees, funded by the Ford Foundation. She worked in Cobán, in the municipalities Ixiles, Ixcán, Quiché and Nenton and Huehuetenango.
In time it became evident that among the returning citizens there were next of kin of the Comunidades de Población en Resistencia (CPR), groups of non-combatant civilians who sought to survive physically and socially in the mountains outside military control. In 1990 they were seeking to make themselves publicly known.
Myrna was consulted in her work by national and international organizations, and even by the Bishop of Quiché, Monsignor Julio Cabrera, to advise them regarding displacement and return from abroad.
Before she was killed, Myrna had commented to her that when she returned to the Ixil municipalities, someone from the military base went to inquire who that “Chinese woman” was. After the murder, the neighbors reported that AVANCSO had been under surveillance by persons in cars and motorcycles during the 15 days prior to the murder. Deeming it a political assassination, the board of directors of AVANCSO requested meetings with high military commanders and with the President of the Republic. They held a meeting that was attended by colonel Luis Enrique Mendoza, deputy director of the General Defense Staff, general Edgar Augusto Godoy Gaitán, head of the Presidential General Staff, and colonel Cabrera, head of the “G-2.” Colonel Mendoza said that they knew neither AVANCSO nor Myrna Mack Chang and that the murder might have come from “the left,” which liked to have “martyrs” among its own supporters. That same day, a man in civilian dress came to their offices, identifying himself as “captain Estrada,” and said that he had been sent by the Presidential General Staff, in charge of the investigation of the murder. He requested a photograph of Myrna and inquired about her personal life and personality traits. He reached the conclusion that Myrna was murdered for resisting a robbery.
In late September, the board of directors of AVANCSO met with President Marco Vinicio Cerezo Arévalo, who expressed that the murder might have been committed by “obscurantist sectors that [...] still exist[ed] within the security forces.”
Between 1992 and 1994, during the trial against Beteta Álvarez, there were several acts of intimidation against AVANCSO employees, including aggression and threats, as well as entries into their offices, demanding that they not cooperate with Helen Mack Chang. The pertinent complaints were filed at the courts and at the Office of the Human Rights Ombudsman. Surveillance of AVANCSO’s seat became more obvious when Christian Tomuschat, the UN Human Rights Rapporteur, visited Guatemala and their offices. Despite complaints filed regarding the facts, those responsible for them were never identified or accused.
When Myrna was murdered, AVANCSO lost the most important member of its Board of Directors, who would now be acting as the coordinator of one of the Study Areas at their research center. If that were the case, her monthly income would be Q 12,000.
c. Written expert opinion of Bernardo Morales Figueroa, a mathematician
The lost earnings of Myrna Mack Chang add up to US$949,934.78. This result was
obtained applying the customary method of establishing the present value of
an accrued amount of capital, adding the factor of professional experience.
If one applies the method used by the Inter-American Court to determine lost earnings, the result would be US$561,384.64, so there is a difference of US$388,050.14 with respect to the calculation in his expert opinion. This arises from the differences in the terminal year of life expectancy, from not using average values but rather present values, operating in constant terms and carrying forward the information with the consumer price indexes, adding the use of the factor of professional maturity.
B) TESTIMONIAL AND EXPERT EVIDENCE
127. The Court heard the testimony of the witnesses and the expert opinions of the expert witnesses proposed by the Commission and by the representatives of the next of kin of the victim (supra para. 43). The Court will now summarize the significant parts of said statements.
a. Testimony of Monsignor Julio Cabrera Ovalle, Guatemalan bishop
He is the Bishop of the Diocese of Jalapa, in Guatemala, and during the time of the facts he was the Bishop of Quiché, a position he held fro 15 years, starting in 1987. During the domestic armed conflict in Guatemala, the Diocese of Quiché had the largest population of internally displaced persons and of refugees in Mexico of all the country, and for this reason he decided to seek more information on this phenomenon.
He met with Myrna Mack Chang for the first time on August 21, 1989. At that time, she was conducting a research study on the situation of internally displaced persons in the country, as part of her work as a social investigator for AVANCSO.
At the time of the facts, Myrna Mack Chang was the only person investigating that specific topic, which had serious political implications, because while the armed conflict was a public matter, the Army sought to maintain secrecy regarding the way it treated the civilian population, especially the population of Quiché. He began to have problems with the Army when he interacted with said population.
At first, Myrna Mack Chang was surprised that she was not threatened due to
the investigation she was conducting on the situation of the refugees and the
internally displaced population and the massacres that gave rise to this phenomenon.
However, the threats against Myrna Mack Chang came later.
During the armed conflict, the Army carried out a task of recovery of the populations known as “Comunidades de Población en Resistencia” (CPR), starting with the population of the Sierra, in the area of Nebaj, and then encompassing the population of various areas in northern Chajul. The latter population groups deemed that the only way to save themselves was to make themselves known publicly, and for this they were able to meet in an assembly and draft a document that they wanted to publish and send to various eminent persons in Guatemala, such as the President of the Republic and the President of Congress. Said document was supposed to arrive in Guatemala on June 14, 1990. However, it never arrived. In July, Myrna Mack Chang attended a meeting on refugees and internally displaced persons held in San José, Costa Rica. At that meeting, it was said that a very important document was going to be published in Guatemala and they asked Myrna to send it to them as soon as she had a copy of the document. However, in August of that year Myrna Mack Chang began to receive phone calls from persons who wanted to know about the document, which made her very fearful, because if her phone was tapped, the Army would link her to said document. In point of fact, on August 18, 1990 and on September 9, 1990, the anthropologist visited his home and told him that she was being followed. On September 7, 1990, said document of the communities of resisting population was published and several days later, on September 11, Myrna was murdered.
After hearing of the murder of the anthropologist, he linked what had happened to publication of the communiqué of the “CPR”, and he stated that the Army had killed Myrna Mack Chang, an innocent person.
b. Testimony of Virgilio Rodríguez Santana, a former newspaper salesman
At the time of the facts, he sold newspapers in Guatemala City near the Mack Chang family’s house, and he knew the family because he sold them newspapers for almost 15 years. He noted how in August, 1990, three individuals kept watch on the Mack Chang family’s house for two weeks, for which reason he decided to warn the “maid” at said house about the surveillance on the family. He heard of Myrna Mack Chang’s death on September 12, 1990.
Certain police agents, among them agent Mérida Escobar, asked him to narrate what had happened and to help make “spoken pictures” of the persons who conducted the surveillance. They also asked him, twice, to identify some motorcycles possibly linked to the facts, and to identify the person whose picture they showed him as one of the men who had been watching the Mack Chang’s family house, which he refused to do, because he did not want any trouble. The photograph was of Noel de Jesús Beteta Álvarez.
He left Guatemala because he was afraid that the same thing would happen to
him that happened to Mérida Escobar. He currently lives in Canada and has only
returned once to Guatemala, in response to a request by Helen Mack Chang, to
render testimony before the domestic criminal courts in September, 2002, for
which he requested protection.
c. Testimony of Lucrecia Hernández Mack, daughter of Myrna Mack Chang
She lives in Guatemala with her common-law spouse, with whom she has been living for six years. She has two children, one who is 2 years old and the other 4 years old. She studied medicine and is currently in a graduate program in Public Health.
Her mother studied social work in Guatemala and then obtained two graduate degrees in Social Anthropology in England. She worked for the Asociación para el Avance de la Ciencias Sociales (AVANCSO), an organization that she herself founded together with other colleagues in 1986 in Guatemala. Her mother was a very hardworking woman who showed great solidarity and was passionate about her work. All her activities were geared toward promoting or supporting some social transformation in her country. Her mother always urged her to also be socially aware.
At the time of the facts she was 16 years old and she lived with Myrna Mack Chang, her mother, in an apartment within her grandparents’ home. The last time she saw her was on the morning of the day she died, when she was going to school. That day she was at home and about six p.m. she received a phone call from her mother, letting her know that she would leave the office soon. Afterwards, her aunt Helen received a phone call from the police informing her that apparently something had happened to her mother, and she imagined that it was an accident. She learned what had happened when her grandparents came to their house with a funerary hearse, and an uncle with “mental problems” told her that her mother had been knifed to death. When her mother’s body arrived at the funeral parlor, she helped clean it and tried to put on her favorite dress but was unable to, because an autopsy had been performed on her, the body had been sutured from the thorax to the neck, and it had several wounds on the arms, the abdomen, the neck, and the legs.
The family suffered a very heavy blow with the death of her mother, because it was such an abrupt and violent loss. She could not understand that her mother was dead because she did not comprehend what had happened. Due to her mother’s death, she felt that she had no one to support her in difficult or happy times.
She graduated from high school one month after her mother’s death and entered the university four months later, for which reason she believes that the fact that her mother was not there at a time “when one begins to make important decisions for life” has affected her. Her mother has not been with her when she graduated, nor during all these years while she was at the university, nor when she has had new friends, nor when she had her first boyfriend, nor when she decided to live together with someone, nor when she had her two children; in other words, in all her adult life, while she was establishing her identity and her personality, which takes shape between adolescence and adulthood. Her aunt Helen became her second mother.
She is emotionally affected by seeing the grief and physical deterioration of her grandparents, especially her grandmother who still cries for a daughter who should not have died before her. She is also affected by seeing the way her aunt Helen has suffered, as she not only had to identify her mother’s body and suffer much physical and psychological stress, but also the difficulties placed by the judiciary in the search for justice.
After her mother’s death, justice is an inherent search in her family. She feels indignant that the State, which should protect them, killed her mother, as it was not merely a member of the State who just decided to kill her, but rather that the murder came from the Presidential Security Department of the Presidential General Staff of the State of Guatemala, and her country, especially the courts, have done absolutely nothing for due and prompt justice.
She thinks of her mother every day, especially of the way she was murdered, of the pain of the 27 knife wounds she suffered, and of how she must have felt lying alone on the street. This makes her feel very indignant and angry.
Her mother was murdered for political reasons, specifically because she was investigating the institutional policies of the State with respect to the internally displaced population groups. In a book that she published, she clearly stated how the army massacred those populations within the country. This was inconvenient for the Army and they saw her mother as a threat.
What little progress there has been in her mother’s case has not been out of true goodwill of the State, but rather through the efforts of her aunt, Helen Mack Chang, who was first the private prosecutor under the former Criminal Court and afterwards took on the role of “querellante adhesiva” or private accuser in the trial against the accessories. On the contrary, the State has done everything possible to obstruct the case; they murdered the policeman who was carrying out the investigation and who identified Noel de Jesús Beteta as the direct perpetrator; they have filed numerous amparo remedies and other remedies, exceeding the terms to decide on them; and her family, the case attorneys, the AVANCSO staff and that of the Myrna Mack Foundation have suffered threats and acts of intimidation.
The fact that they are constantly threatened and living in a state of insecurity affects both her and the rest of her family emotionally. The family has all the time been trying to take security measures, to be careful whom they talk to on the phone and who approaches them, among other measures, to avoid another fact like what happened to her mother, and this is an overly heavy emotional burden.
The search for justice has also affected her family financially. In her case, due to the need to spend time on the trials, she turned down job offers because she could not commit to complete presence or stability. In August, for example, she turned down two offers because of the oral trial in September. Over the last five years she has spent roughly four hours a week on the case, depending on whether it was active or adjourned. During the oral trial she spent all her time on the case, starting at nine a.m. when the hearings began until they ended, then going to the office to prepare the case.
In 1999 she went to a psychologist who recommended two appointments per week and that she join a support group, but this was very difficult financially, as she became pregnant with her second child and she had to interrupt the therapy.
What is most important is for the State to acknowledge that her mother’s murder was a special intelligence operation coming from the Presidential Security Department of the Presidential General Staff, admitting that it was an institutional order that led to surveillance and following of her mother and then killing her. She also stated that Guatemala must publicly apologize to them through all the mass media. Her family wants the truth to be known and for no one to be able to deny, after the trial, what happened.
She came to render testimony before the Inter-American Court because in this way no one will be able to deny what happened to her mother, thus setting a precedent that will have a great social impact in Guatemala. She does not want them to be seen as victims but rather as actors.
d. Testimony of Helen Mack Chang, sister of Myrna Mack Chang
She always lived with her sister, Myrna Mack Chang, except when she was married. Her sister was an anthropologist and at the time of the facts she was conducting a study on refugees, sponsored by the Georgetown University. Her sister also advised Monsignor Julio Cabrera Ovalle, when he was in charge of the Diocese of Quiché, on the situation of the refugees and internally displaced population in Guatemala, as this was a topic unknown to many and handled almost exclusively by the military.
In one of her studies, her sister reached the conclusion that the return of the refugees should be attained through their integration into the country, discontinuing the war treatment they were receiving. She requested intervention of the Church, of non-governmental organizations and of the International Red Cross, all this to humanize the conflict. Her sister’s position was contrary to the counterinsurgency plans of the Army, and this turned her into a military objective.
On September 11, 1990, about a quarter to seven p.m., her sister was attacked by at least two men and received 27 knife wounds.
After the facts, the witness began to make inquiries among the neighbors and
other possible witnesses, but they were all afraid to talk. Then, she began
to receive the first threats and to be followed, all of which coincided with
the visit of the United Nations Rapporteur for Guatemala, Christian Tomuschat,
and the perpetrators of the crime sought to avoid a complaint regarding the
facts. They also sought to dishonor her family by speculating that her sister’s
murder was a crime of passion; that she was involved in the foreign currency
“black market;” that she took drugs, or that she was a member of the guerrilla
forces.
She became involved in the criminal proceedings a month after the facts, when
she noted that the investigation did not move forward and that the Magistrates’
Court trial did not progress. She had to carry out the investigation nearly
alone, as the Public Prosecutor’s Office only supported her with briefs when
they deemed that it was not dangerous. Otherwise, she looked up some article
of the law that would allow her to do it on her own, individually, or she would
obtain an attorney’s signature, in the understanding that at that time she did
not have any funds to pay the attorney, and no one would take the case due to
the obvious risks involved and that taking a case for someone who had been murdered
would somehow link them to subversion. For this reason, she had to study the
law and begin various steps on her own.
At the start, the police investigation of her sister’s murder was entrusted to a first team constituted by policemen José Mérida Escobar and Julio Pérez Ixcajop, who prepared a police report dated September 29, 1990, in which they identified Noel de Jesús Beteta Álvarez, a former sergeant major who was a member of the so-called “Archivo” of the Presidential General Staff, as the main suspect of the murder. In said report, they reached the conclusion that the crime was politically motivated. However, this report was not submitted to the courts in Guatemala. Instead, a mutilated report dated November 4, 1990, was submitted to the courts, stating that the motivation of the crime was robbery and that at the time there were no suspects.
The “Archivo” was a military unit mostly composed of the well-known death squads. It originated in the international treaties signed by Guatemala with the United States to apply the national security doctrine, and initially it was known as the “Regional.” When the first civilian government was elected, they only changed its name to “Presidential Security Department,” part of the “Estado Mayor Presidencial” or Presidential General Staff, but its activities linked to grave human rights violations, disappearances, extra-legal executions and tortures continued.
Mérida Escobar rendered testimony before a court on all that he had investigated and on the conclusions of his September 29, 1990 report, and he recognized his signature on said report and on the daily reports he had prepared. When he completed his statement, the representative of the Public Prosecutor’s Office approached him and told him that he had just signed his death sentence. In point of fact, detective Mérida Escobar began his statement saying that he feared for his life. He was murdered on August 5, 1991, on his way to the Office of the Human Rights Ombudsman.
Both Rember Larios Tobar, the former supervisor of José Mérida Escobar, and his auxiliary colleague in the investigation, Julio Pérez Ixcajop, had to seek exile in Canada. All the witnesses, one journalist and one legal assistant also had to go into exile. In view of this situation, she requested rogatory letters, in the ongoing proceedings, for the witnesses who were in exile to render testimony before the respective national courts. Nevertheless, the authorities in charge took about a year to process the requests, and did so in such a poor manner and they were so defective that when they reached Canada they were rejected because they did not comply with all the requirements, for which reason they had to request them again. The procedural terms expired and it was not possible to execute these rogatory letters, which forced them to seek out the witnesses in Canada and try to obtain all the security measures required for them to render their testimony in Guatemala.
Beteta Alvarez was finally sentenced to 30 years in prison as the direct perpetrator of her sister’s murder. However, during the first and second instance judgments they were barred from accusing all those who were responsible, both direct perpetrators and accessories, for which reason they had to resort to an appeal to reverse those decisions and to be able to proceed with the efforts to prosecute the accessories.
In 1994, a second proceeding began against the accessories of Myrna Mack Chang’s murder: general Edgar Augusto Godoy Gaitán, head of the Presidential General Staff, Juan Valencia Osorio, director of the Presidential Security Department, Juan Guillermo Oliva Carrera, deputy head of the Presidential Security Department, Juan Daniel Del Cid Morales, Juan José Larios, and an individual whose surname is Charchal. Final judgment is still pending in this trial, and only colonel Juan Valencia Osorio has been convicted. The proceedings took place in six or seven controlling courts, and in twelve or thirteen other courts, including chambers. For this reason, she asked the Inter-American Court to order the appointment of an observer of the proceedings until the final judgment is issued, bearing in mind that in the case of Monsignor Gerardi the judgment that convicted those responsible for his death was overturned in that instance, that the proceeding in the “Masacre de las dos Erres” has been paralyzed for over two and a half years because 31 amparo remedies were filed, and that in the Colotenango case the civil self-defense patrol members are applying pressure to obtain their acquittal.
Fifteen days after the start of the September 3, 2002 trial, there were various threats against the attorney who was helping her. They left messages with death threats and fired against his house, for which reason he had to sent his daughters abroad.
The proceedings have been delayed, among other reasons, due to the use of a series of delay tactics, such as abusively filing multiple amparo remedies. For example, in 2002 the defense counsel for the accused interrupted the trial alleging that she had breached the rights of the daughter of her sister. The chamber accepted the amparo remedy and annulled the trial, despite the fact that they were not even rights of the accused. In another amparo remedy, on the issue of evidence, despite the fact that it was not under the competence of that chamber but rather of the court, they accepted it and even sought to eliminate all the documentary and testimonial evidence supplied by the private accuser. In another amparo, they alleged that the private accuser had not determined the points on which the expert witness would render testimony, and the trial was suspended. At another time in the proceedings, an order was issued for the case to remit from civil to military courts, which caused years of delays discussing competence. At the start, the case was heard by civil courts, but the defense counsel insisted that they be tried by a military court. The judiciary either would not hear judicial actions or would obstruct them, precisely out of fear. In 1996 they attempted to close the case, to backtrack it and to effect a joinder with the trial against Beteta Alvarez. This discussion lasted three years, and the judges who have attempted to do something have been threatened.
Seeking cover in official secret under Article 30 of the Political Constitution of the Republic, the Ministry of National Defense refused to turn over documents that would have helped prove the responsibility of the accused in this case. The requested information was on normal operating and administrative procedures of the Presidential Security Department, the record of vehicle authorizations of the Presidential Security Department at the time, and her sister’s file, which the Historical Truth-Finding Committee stated that they had seen at least in part, but all this was denied. They also requested information on persons holding key positions and especially whether they had been part of the intelligence system, and this was rejected due to security reasons. In this regard, Guatemalan law is quite clear, and it sets forth that the information must be provided when it is requested by a competent judge, and it is for the judge to determine whether it is secret or not. However, none of this information was supplied.
In the proceeding against the accessories, only one person was convicted, colonel Juan Valencia Osorio, and now the appeal process was carried out on February 26, 2003. It cannot be said that all the direct perpetrators and accessories of the murder have been convicted. There are other suspects of being accessories of her sister’s murder, but the authorities did not wish to undertake any investigation, mainly due to the risk involved. There is a proceeding opened against other direct perpetrators. It is an obligation of the State to continue the investigation and to try all those who are responsible, for justice to be served in the instant case.
In 1994, a set of cassettes recorded by Noel de Jesús Beteta Álvarez was handed over, in which he describes exactly how he murdered her sister, and he clearly defined how the illegal intelligence operation was carried out to kill those who were deemed enemies of the State. Through his statements, he sought redemption of the sentence. In any case, he expected an amnesty. He stated that the person who gave the order and who gave the “Roman” signal to kill her sister was colonel Juan Valencia Osorio, who had received instructions from general Edgar Augusto Godoy Gaitán.
At the trial that took place from September 3, 2002 to October 3, 2002 before a competent tribunal, Beteta Álvarez recognized that it was he who did the interviews, but that he did them under the influence of drugs, and he accused her of supplying him a daily ounce of cocaine to buy his testimony. Nevertheless, the statements are consistent in terms of space, time and place, so that if Beteta Alvarez were drugged due to consumption of a daily ounce of cocaine for six or four months duration of the interviews, he would not have been capable of making them.
Her family, her sister’s colleagues at AVANCSO and the staff of the Myrna Mack Foundation have been threatened. The pattern has always been to threaten after a judicial step has been taken. Recently, the security forces themselves have detected following by suspicious drivers in vehicles around the foundation and near her home. They have also tried to link her brother with drug trafficking activities, and they even