REPORT
Nº 58/01
CASE 9207
OSCAR MANUEL GRAMAJO LÓPEZ
GUATEMALA
April 4, 2001
I.
SUMMARY
1.
In September 1983, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a petition from Mr.
Hugo César Gramajo López (hereinafter “the petitioner”) concerning
the disappearance of his brother Oscar Manuel Gramajo López (hereinafter
“the victim”) in the Republic of Guatemala (hereinafter “the
State” or “the Guatemalan State”).
2.
The petitioner alleges that on November 17, 1980, the victim
and three companions were arrested by officers of the National Police,
with the assistance of members of the Fiscal Police and of the military.
The arrest occurred under the following circumstances: the victim and
his friends were in the house where one of the friends lived, listening
to the radio with the volume turned up and drinking, when a neighbor
reported them to the police because of the noise they were making.
3.
After reviewing the petitioner’s case and in light of the
Guatemalan State’s refusal to provide the Commission with information
despite warnings that Article 42 of the Regulations of the IACHR would
be applied, the case is found to be admissible. It is also concluded
that the grounds for the report are true and that the Guatemalan State
violated Oscar Manuel Gramajo López’s rights to life (Article 4),
to personal integrity (Article 5), to personal liberty (Article 7),
and to judicial protection (Articles 8 and 25), as well as the obligation
to guarantee the rights protected in the American Convention on Human
Rights, as established in Article 1(1) thereof.
II.
PROCEEDINGS BEFORE THE COMMISSION
4.
On November 4, 1983, the Commission proceeded to open the case
with number 9207 and transmitted the pertinent parts of the petition
to the Guatemalan State requesting that it provide information on the
material facts of that communication within a 90-day period.
5.
Having received no reply from the Guatemalan State, the Commission
reiterated its request for information on May 30, 1984 and indicated
that “if the information was not received within 30 days, the Commission
would consider the possibility of applying Article 39 of the Regulations”
whereby the facts reported would be presumed to be true.
6.
As the Commission received no reply from the Guatemalan State,
on February 19, 1985, it
renewed its request for information granting an additional time limit
of 30 days and again indicating the possibility of applying Article
42 of the Regulations. The Commission still received no reply from the
Guatemalan State.
7.
On December 2, 1998, the Commission requested the petitioner
and the Guatemalan State to submit within 30 days any recent and relevant
information that might have arisen in the case. On that date, also,
the Commission offered its services to the parties in reaching a friendly
settlement. In that regard, the Commission never received any additional
information or notification from the parties as to whether they accepted
to proceed with a friendly settlement.
8.
Upon receiving a verbal request from the Guatemalan State, the
Commission sent it copies of the case file on February 11, 1999.
9.
The Commission reiterated its request for information on August
31, 2000, granting a time limit of 30 days, with no possibility of extension.
The State has not responded to this new request for information.
III
POSITIONS OF THE PARTIES
A.
Petitioner
10.
The petitioner alleges that, on November 17, 1980, officers of
the National Police, in collaboration with the Fiscal Police and members
of the military illegally arrested his brother Oscar Manuel Gramajo
López (17 years old on the date of his arrest), who has been missing
ever since. As soon as the arrest occurred, the victim’s family
immediately went to the National Police, who denied having made the
arrest.
11.
The victim was arrested while he was with a group of friends
listening to the radio with the volume turned up and drinking at the
home of one of these friends. A neighbor, who was disturbed by the noise
the young people were making, called the police. The National Police,
assisted by the Fiscal Police and members of the military, arrested
the four boys, forcibly removing them from the house and mistreating
them. The police officers then took the four young men to the First
National Police Corps where they were allegedly beaten.
12.
The report further stated that, between 1981 and 1983, the victim’s
family received news from a Colonel in the army and another man working
in the army, who was a friend of the victim, that the victim was alive
and in prison. They also indicated that Oscar Manuel had been held at
the Justo Rufino Barrios army headquarters for some time and was later
subjected to forced labor, under the supervision of the army, on projects
in Santa Cruz Barillas, Huehuetenango, and Poptún Petén.
13.
In August 1983, the victim’s family received information
indicating that he was alive. According to that account, a merchant
driving a van near Santa Cruz Barillas on the way to Huehuetenango was
stopped en route by a stranger, who, it would appear, was the victim.
He asked the merchant where he was and later told him that he was doing
forced labor under army command in the mines of Santa Cruz Barillas.
The victim asked the merchant to let his family know that he was alive.
The merchant delivered the message to the victim’s family through
a woman working with Mr. Gramajo López’s mother.
B.
Position of the State
14.
The Guatemalan State never submitted information in this case
despite having been requested to do so on four occasions. The Guatemalan
State was twice informed that if it did not submit information on the
facts stated in the report, the Commission could invoke Article 42 of
its Regulations, whereby it could presume the facts to be true if the
State refused to submit information.
IV.
ANALYSIS OF ADMISSIBILITY
A.
Competence
15.
The Commission has prima facie competence to examine the
case. The facts alleged in the petition occurred when the Guatemalan
State was bound by the obligation to observe and guarantee the rights
established in the American Convention.
B.
Requirements for admissibility of the case
a.
Exhaustion of domestic remedies and timeliness of the petition
16.
As indicated in the report, the victim’s family went to
the offices of the National Police on the day after Mr. Oscar Manuel
Gramajo López was arrested. It is also noted that they did not file
a formal report with the authorities for fear of government reprisals
if they reported an illegal arrest committed by military personnel and
police officers. Similarly, the report states that the witnesses were
threatened by the police and did not want to come forward. For example,
Mr. Mario Calderón, who was at home at the time of the arrest, moved
to another town because he thought the family would ask him to testify
in court.
17.
Regarding the exhaustion of domestic remedies, the Guatemalan
State failed to reply to any of the Commission’s requests for information.
This rule on exhaustion of domestic remedies seeks to give the State
the opportunity to resolve the problem under domestic law before resorting
to an international proceeding. For the Commission, the Guatemalan State’s
silence constitutes a presumption of tacit refusal to apply the rule
of exhaustion.
18.
Furthermore, in addition to this refusal to apply the rule of
exhaustion of domestic remedies, the Commission believes that, when
the events occurred, the remedies of Guatemala’s domestic jurisdiction
were ineffective and failed to provide minimum guarantees of due process
of law. This exceptional situation as regards the
facts, which is envisaged in Article 46(2) of the Convention, is also
a valid condition for application of the requirement of exhaustion of
domestic remedies provided in Article 46(1)(a).
2.
Duplication of procedures and res judicata
19.
There is no evidence that the subject matter of the petition
is pending other proceedings under international law, or that it might
be the duplication of another previous matter already examined by the
Commission or other international agency.
Consequently, the requirements set out in Articles 46(1)(c) and
47(d) of the Convention have been fulfilled.
3.
Colorable claim
20.
The Commission is of the view that the petitioner’s allegations
concerning the forced disappearance of Oscar Manuel Gramajo López at
the hands of government agents and the latter’s ineffectiveness
in investigating the acts and punishing the perpetrators of that crime
could constitute violations of rights guaranteed in Articles 4, 5, 7,
8, 25, and 1(1) of the American Convention. As there is no evidence
that these aspects of the petition are groundless or without merit,
the Commission considers them admissible in accordance with the requirements
established in Article 47(b) and (c) of the American Convention.
21.
It should also be taken into consideration for admissibility
that the Guatemalan State has never questioned the disappearance of
Mr. Oscar Manuel Gramajo López nor the fact that these acts were committed
by government agents. In particular, since the time the pertinent parts
of the report were transmitted and after repeated requests, the State
has not submitted any information on the case, thereby failing to perform
an international obligation under Article 48 of the American Convention.
For this reason, the Commission considers the presumption within
the limits of Article 42 of its Regulations to be applicable to the
case. Article 42 of the Commission’s Regulations stipulates that
the facts reported in the petition, whose pertinent parts have been
transmitted to the State, shall be presumed to be true if, during the
maximum period set by the Commission, the State has not provided the
pertinent information, as long as other evidence does not lead to a
different conclusion. In
this case the existing information does not lead to a different version
of the facts from the one reported, indeed it confirms the report.
4.
Conclusions regarding competence and admissibility
22.
The Commission concludes that it is competent to hear the merits
of the petition in this case and that said petition is, in principle,
admissible, in accordance with Articles 46 and 47 of the American Convention.
V.
ANALYSIS OF THE MERITS
A.
Right to life (Article 4), right to personal integrity (Article
5), and right to personal liberty (Article 7)
23.
Mr. Oscar Manuel Gramajo López
has remained missing to this day.
24.
In that connection, the Inter-American Court of Human Rights
has stated that the forced disappearance of persons constitutes a multiple
and continued violation of numerous rights recognized in the Convention,
which the States Parties are required to observe and guarantee. These
begin with the kidnapping of the person, which involves the arbitrary
deprivation of freedom and violates the right of the detainee to an
immediate hearing before a judge. In most cases it also involves prolonged
isolation and coercive severing of communications—which constitutes
cruel and inhumane treatment—as well as the execution of the detainees
in secret, with no form of trial, followed by the concealment of the
body in order to remove any material evidence of the crime and allow
the perpetrators to act with impunity.
Furthermore, reflecting the development of the Criminal Court
for the former Yugoslavia and for Rwanda, said court codified this practice,
making forced disappearance an ongoing offense or one that is committed
at successive intervals until the missing person reappears alive or
his/her remains are found, and it is considered a crime against humanity.
This is also established in the International Criminal Statute adopted
by the Diplomatic Conference of Rome on July 17, 1998, in Article 7(1)(I).
25.
The time when Mr. Gramajo López was deprived of his freedom and
seen for the last time coincided with the period of armed conflict in
Guatemala when the largest number of forced disappearances took place.
It should also be taken into account that the victim lived in the San
Marcos Department, which was reported by the Commission to Clarify History
to be one of those departments where the largest number of forced disappearances
occurred.
26.
Furthermore, given the context in which the disappearance occurred,
the silence of the Guatemalan State, and the fact that, after more than
20 years, the whereabouts of Oscar Manuel Gramajo López are still not
known, it can be reasonably concluded that the Convention was repeatedly
violated, in light of Articles 7, 5, and 4 thereof.
27.
Article 7 of the American convention enshrines the right to personal
liberty and security. It is clear from the facts of this case
that Oscar Manuel Gramajo López was taken from the house where he was
found by government agents, who failed to produce any warrant for his
arrest or take him immediately before the competent judge or authority.
These facts constitute a serious violation of the provisions of Article
7 of the American Convention.
28.
Article 5 of the American Convention establishes that every person
has the right to have his physical, mental, and moral integrity respected.
According to the Inter-American Court “prolonged isolation and
deprivation of communication are in themselves cruel and inhuman treatment,
harmful to the psychological and moral integrity of the person and a
violation of the right of any detainee to respect for his inherent dignity
as a human being. Such
treatment, therefore, violates Article 5 of the Convention, which recognizes
the right to the integrity of the person…”
29.
The right to life is enshrined in Article 4(1) of the American
Convention, which establishes that every person has the right to have
his life respected and that no one may be arbitrarily deprived of life.
Now, twenty years after the disappearance, the whereabouts of the victim
have not been determined. In light of the time that has elapse, the
Guatemalan Government’s silence, and the context in which the events
took place, it is reasonable to infer that the victim is no longer living.
These circumstances constitute a serious violation of Article 4 of the
American Convention.
30.
For these reasons, the Commission concludes that, based on the
facts reported and the silence of the Guatemalan State, government agents
caused the victim’s disappearance and violated his right to life,
to liberty, and to personal integrity, enshrined in Articles 4, 5, and
7 of the American Convention.
B.
Obligation of the State to investigate, try, and punish those
responsible and the right of victims to judicial protection
31.
Articles 8 and 25 of the American Convention establish the State’s
obligation to provide access to justice with guarantees of legality,
independence, and impartiality, within a reasonable time frame, and
with due protection, as well as the general obligation to provide effective
judicial recourse in the event of violations of fundamental rights,
incorporating the principle of effectiveness of instruments or procedures.
As indicated by the Court:
State
Parties have an obligation to provide effective judicial remedies to
victims of human rights violations (Art. 25), remedies that must be
substantiated in accordance with the rules of due process of law (Art.
8(1), all in keeping with the general obligation of such States to guarantee
the free and full exercise of the rights recognized by the Convention
to all persons subject to their jurisdiction.
32.
The lack of effective recourse in the event of violations of
rights recognized in the Convention is itself a violation of that Convention.
Judicial remedies and mechanisms are not only formally provided in the
legislation but must also effectively establish whether a human rights
violation has been committed and remedy its consequences.
33.
Domestic remedies in Guatemala have not provided a satisfactory
and effective mechanism for guaranteeing due process of law and for
determining the whereabouts of Oscar Manuel Gramajo López, investigating
the facts and punishing those responsible for his disappearance. In
that regard, the comments of the Commission to Clarify History (CEH)
should be noted:
The
failure of Guatemalan administration of justice to protect human rights
during the domestic armed conflict has been clearly and fully established,
in light of the thousands of human rights violations recorded by the
CEH, which were not investigated, tried, or punished by the Guatemalan
State. Very few cases were investigated to determine the facts and try
and punish the perpetrators. Exceptionally, in one case, the victims
and their families received reparations for the injury caused. In general,
the judiciary failed to address basic procedural remedies to control
the public authorities in cases where the rights to personal liberty
and security, such as habeas corpus,
were seriously trampled. In addition, on numerous occasions, courts
in the justice system subordinated themselves to the executive, applying
legal standards or provisions that were contrary to due process or failing
to apply those that would ensure due process.
This
left the population completely defenseless against abuses of power and
gave the impression that the judiciary was an instrument for the defense
and protection of the powerful that repressed or denied protection of
fundamental rights, especially for those who were victims of serious
human rights violations.
In
this climate of threats, the few judges and magistrates that had assumed
the responsibility for providing the remedy of personal hearings, refrained
from taking further action. According to one judge "fear was the
predominant pathology" that paralyzed any attempt by the judiciary
to protect human rights. It should also be mentioned that the highest
judicial authorities were incapable of protecting the physical integrity
of judges and magistrates….
In
conclusion, between 1966 and 1982, the judiciary systematically denied
the remedies of habeas corpus
and effective judicial protection for persons illegally detained by
the security forces, for different reasons, most of which can be imputed
to its agencies, in particular the Supreme Court of Justice.
34.
These deficiencies in the domestic remedies of Guatemalan jurisdiction
do not only justify the assertion that the petitioners are not obligated
to use and exhaust domestic remedies; they also invoke the international
liability of the Guatemalan State as they constitute a violation of
the rights to judicial protection and judicial guarantees, recognized
in Articles 25 and 8 of the American Convention.
C. Obligation
to respect and guarantee the rights recognized by the Convention
35.
Article 1(1) establishes the obligation of States Parties to
guarantee the exercise of basic rights and freedoms recognized in the
Convention.
This obligation entails the duty to organize governmental structures,
and all structures in general, that would legally guarantee the free
and full exercise of human rights. As a result of this obligation, the
States Parties are legally bound to prevent, investigate, and punish
any violation of human rights protected by the American Convention.
Specifically, in the case of forced disappearance of persons, the State
has the duty to determine the victim’s fate and status, punish
the guilty parties, and compensate the families. Similarly, the Court
indicated that:
The
State has a legal duty to (…) carry out a serious investigation
of violations committed within its jurisdiction, to identify those responsible,
to impose the appropriate punishment and to ensure the victim adequate
compensation..”
36.
In this case, the Guatemalan State has not effectively performed
its obligation to elucidate the forced disappearance of Oscar Manuel
Gramajo López, as well as try and punish those responsible and provide
reparations to the victim’s family. The Commission concludes that
the Guatemalan State has failed in its obligation to guarantee the right
to life, liberty, and personal integrity of Oscar Manuel Gramajo López,
as well as the right to judicial guarantees for the victim and his family
under Article 1(1) of the Convention.
VI.
DEVELOPMENTS FOLLOWING THE ARTICLE 50 REPORT
37.
On October 5, 2000, under the terms of Article 50 of the American
Convention, the Commission adopted Report 87/00 in connection with this
case. The report was transmitted to the Guatemalan State on October
30, 2000, along with a request for it to provide information, within
the following two months, about the steps taken to comply with the Commission’s
recommendations.
38.
On January 29, 2001, after that period had expired, the Guatemalan
State told the Commission that: “The actions deemed appropriate
for implementing the recommendations set forth in the aforesaid confidential
reports were carried out—including a search for information, records,
and judicial case files—but no positive results were obtained.
The Government of Guatemala therefore believes that the Commission should
provide information about the names and addresses of the family and
the petitioners in order to begin implementing the recommendations because,
in order to conduct an exhaustive investigation and compensate the victims,
their identities and locations need to be established in order to set
up communications channels for furthering compliance with the recommendations
contained in the aforesaid confidential reports. The Government of Guatemala
regrets not having met the limit date for reporting on the confidential
reports; however, this occurred because when the time allotted expired,
major efforts were still being made to gather together information about
those cases. In addition, the work required to attend to the cases undergoing
friendly settlement proceedings meant an increased workload that made
it impossible for us to communicate on date set by the honorable Commission.”
39.
The Commission believes that the Guatemalan State’s comment
that “the actions deemed appropriate for implementing the recommendations
set forth in the aforesaid confidential reports were carried out—including
a search for information, records, and judicial case files—but
no positive results were obtained” confirms this report’s
conclusion regarding the disappearance of Oscar Manuel Gramajo López
and the failure of the State of Guatemala to conduct a serious and effective
investigation to reveal the victim’s whereabouts and to punish
those responsible for his disappearance.
40.
Furthermore, the Commission does not share the Guatemalan State’s
opinion that “the Commission should provide information about the
names and addresses of the family and the petitioners in order to begin
implementing the recommendations because, in order to conduct an exhaustive
investigation and compensate the victims, identities and locations need
to be established in order to set up communications channels for furthering
compliance with the recommendations contained in the aforesaid confidential
reports.” In this regard, the Commission points out that it is
the inherent duty of the Guatemalan State to initiate and pursue legal
investigations and that the State cannot rely on information provided
by the Commission to “conduct an exhaustive investigation”
in order to reveal the whereabouts of Oscar Manuel Gramajo López and
to judge and punish those responsible for his disappearance. The Commission
believes that the fact that more than 20 years after the events described
herein the State still lacks even the most basic information about the
identity and whereabouts of the victim’s family reinforces all
the Commission’s conclusions in this report.
41.
In light of the information submitted by the Guatemalan State,
the Commission concludes that it has not complied with the recommendations
set forth in Report 15/01 of March 2, 2001, and it reiterates its conclusions
and recommendations.
VII.
CONCLUSIONS
42.
Based on the above-stated considerations in fact and in law,
the Commission concludes that the Guatemalan State has violated the
rights of Mr. Oscar Manuel Gramajo López to life (Article 4), personal
integrity (Article 5), personal liberty (Article 7), and judicial protection
(Articles 8 and 25), as well as the obligation to guarantee the rights
protected in the Convention, as established in Article 1(1) thereof.
VIII.
RECOMMENDATIONS
43.
On the basis of the analysis presented, the Inter-American Commission
on Human Rights reiterates its recommendations that the State of Guatemala:
a.
Conduct and impartial and effective investigation of the facts
reported to determine the circumstances and fate of Mr. Oscar Manuel
Gramajo López, which would establish the identity of those responsible
for his disappearance and punish them in accordance with due process
of law.
b.
Adopt measures for full reparation of the violations determined,
including: steps to locate the remains of Mr. Oscar Manuel Gramajo López;
the necessary arrangements to accommodate the family’s wishes in
respect of his final resting place; and proper and timely reparations
for the victim’s family.
IX.
PUBLICATION
44.
On March 2, 2001, the Commission sent Report Nº 15/01 to the
Guatemalan State and to the petitioners in compliance with Article 51(2)
of the American Convention. It also gave the State one month in which
to comply with the above recommendations. The day that the period expired, Guatemala requested
two month extension to report on its compliance with the recommendations.
Given the length of time that has transpired since the occurrence
of the facts in this case which we brought to the Commission's attention
in 1983 and given the nature of the case at hand, the Commission decided
to deny the extension requested by the Government of Guatemala.
45.
In light of the above considerations and pursuant to Article
51(3) of the Convention and Article 48 of its Regulations, the Commission
decides to repeat this report’s conclusions and recommendations,
to publish it, and to include it in its Annual Report to the OAS General
Assembly. The Commission, in compliance with its mandate, will continue
to monitor the steps taken by the Guatemalan State in connection with
the aforesaid recommendations until such time as they have been carried
out in full.
Done
and signed in Santiago, Chile, April 4 , 2001 Signed: Claudio Grossman
Chairman; Juan E. Méndez, First Vice-Chairman; Helio Bicudo, Robert
K. Goldman, Peter Laurie, and Julio Prado Vallejo, Commissioners.
3
The
Article 42 of the Regulations of the Inter-American Commission states
that: “The facts reported in the petition whose pertinent
parts have been transmitted to the government of the State in reference
shall be presumed to be true if, during the maximum period set by
the Commission under the provisions of Article 34 paragraph 5, the
government has not provided the pertinent information, as long as
other evidence does not lead to a different conclusion.”
Article 7. Right to Personal Liberty
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons
and under the conditions established beforehand by the constitution
of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention
and shall be promptly notified of the charge or charges against
him.
5. Any person detained shall be brought promptly before a judge or other
officer authorized by law to exercise judicial power and shall be
entitled to trial within a reasonable time or to be released without
prejudice to the continuation of the proceedings. His release may
be subject to guarantees to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse
to a competent court, in order that the court may decide without
delay on the lawfulness of his arrest or detention and order his
release if the arrest or detention is unlawful. In States Parties
whose laws provide that anyone who believes himself to be threatened
with deprivation of his liberty is entitled to recourse to a competent
court in order that it may decide on the lawfulness of such threat,
this remedy may not be restricted or abolished. The interested party
or another person in his behalf is entitled to seek these remedies.
Article 5. Right to Humane Treatment
1. Every person has the right to have his physical, mental, and moral
integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading
punishment or treatment. All persons deprived of their liberty shall
be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
4. Accused persons shall, save in exceptional circumstances, be segregated
from convicted persons, and shall be subject to separate treatment
appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from
adults and brought before specialized tribunals, as speedily as
possible, so that they may be treated in accordance with their status
as minors.
6. Punishments consisting of deprivation of liberty shall have as an essential
aim the reform and social readaptation of the prisoners.
Article 4. Right to Life
1.
Every person has the right to have his life respected. This
right shall be protected by law and, in general, from the moment
of conception. No one shall be arbitrarily deprived of his life.
2.
In countries that have not abolished the death penalty, it
may be imposed only for the most serious crimes and pursuant to
a final judgment rendered by a competent court and in accordance
with a law establishing such punishment, enacted prior to the commission
of the crime. The application of such punishment shall not be extended
to crimes to which it does not presently apply.
3.
The death penalty shall not be reestablished in states that
have abolished it.
4.
In no case shall capital punishment be inflicted for political
offenses or related common crimes.
5.
Capital punishment shall not be imposed upon persons who,
at the time the crime was committed, were under 18 years of age
or over 70 years of age; nor shall it be applied to pregnant women.
6. Every person condemned to death shall have the right to apply for amnesty,
pardon, or commutation of sentence, which may be granted in all
cases. Capital punishment shall not be imposed while such a petition
is pending decision by the competent authority.
Article 1(1) Obligation to Respect Rights
1. The States Parties to this Convention undertake to respect the rights
and freedoms recognized herein and to ensure to all persons subject
to their jurisdiction the free and full exercise of those rights
and freedoms, without any discrimination for reasons of race, color,
sex, language, religion, political or other opinion, national or
social origin, economic status, birth, or any other social condition.
