remedy, the State referred to two cassation judgments delivered by the Supreme Court of Guatemala that confirm the rulings of two ordinary lawsuits for damages in which a private institution in one case, and a public sector institution in the other, were ordered to pay compensation for medical malpractice. b) Summary trial of public officials and employees for civil liability, pursuant to Article 246 of the Code of Civil and Commercial Procedure 16, not to consider the damage, but to determine if there was any liability on the part of officials responsible for Mrs. Chinchilla’s custody and, if so, establish compensation. 17. The State insisted that these remedies would have made it possible to prove whether Mrs. Chinchilla’s death was caused by the lack of medical attention, which could not be proven through a criminal trial (which determines whether a person committed a criminal action). In that case, neither negligence nor lack of adequate medical attention would constitute a crime, but rather would entail civil liability, unless it was intentional, in which case, depending on the result, a person could be prosecuted for damages or for homicide. The State stressed that the Commission and the representatives did not claim criminal intent in Mrs. Chinchilla’s death, and argued that if the petitioners did not agree with the outcome of the criminal investigation they should have persisted at the time and exercised the rights and guarantees recognized in the Constitution and the Code of Criminal Procedure,17 but did not do so. The State also emphasized that Article 1647 of the Civil Code establishes that exemption from criminal liability does not imply exemption from civil liability; therefore, the Public Prosecution Service’s decision to dismiss the case only made reference to the absence of a criminal act, but did not affect the possibility of administrative liability, for which it was necessary to file a civil claim. Based on the foregoing, and considering that the petitioners are directly using the protection of the Inter-American System, when it is complementary and coadjuvant, the State asked the Court to admit its objection of failure to exhaust domestic remedies. 18. Regarding the alleged failure to file an ordinary lawsuit to claim damages, the Commission indicated that, in its Admissibility Report, it had declared inappropriate the requirement to exhaust that remedy. It pointed out that because Mrs. Chinchilla was a person deprived of liberty who had died while in the State’s custody, the State had a duty to investigate her death ex officio and it could not demand that the other party exhaust civil remedies. The Commission further noted that the State did not dispute the fact that Mrs. Chinchilla’s next of kin had not been notified of the opening of the investigations by the Public Prosecution Service, or of their outcome and, therefore, the next of kin could not be required to have some form of participation in that proceeding, pursuant to Article 46(2) (b) of the Convention. It also pointed out that, during the admissibility stage, the State did not explain how said remedy would be appropriate and effective. As to the alleged failure to exhaust the remedy of a summary trial for civil liability of public officials and employees, the Commission indicated that the remedy indicated by the State was mentioned for the first time before the Court in the answering brief; therefore, this aspect of the objection was filed extemporaneously and, furthermore, the State did not specify the legal requirements for its application or demonstrate its effectiveness and appropriateness. damage or prejudice caused by its officials or employees in the exercise of their duties”). It argued that, as of this date, the civil liability, both of the officials and of the State, has not expired in the case of Mrs. Chinchilla. “The civil liability of public officials and employees is applicable in those cases expressly established by law; it shall be analyzed before the judge of First Instance by the injured party or his successors.” 16 Code of Criminal Procedure, Article 116. “Private Accuser. (…) the petitioner may always collaborate with the prosecutor and contribute to the investigation of the facts. (…) If the petitioner disagrees with the decision of the prosecutor, he may have recourse to the Judge of First Instance (…)”. 17 9