13. The Guatemalan State did not respond to the reiteration of the request for information
from the Inter-American Commission, conveyed by note of February 23, 2004. The
Commission confirms that the time periods established in the Commission’s Rules of Procedure
for the State to provide information on this petition lapsed long ago, without the Guatemalan
State having controverted the facts set forth in the complaint.
IV.
ANALYSIS
A. Competence ratione personae, ratione loci, ratione temporis, and ratione
materiae of the Inter-American Commission
14. The petitioners are authorized by Article 44 of the American Convention to submit
complaints before the IACHR. The petition indicates as the alleged victim an individual with
respect to whom the Guatemalan State undertook to respect and guarantee the rights
enshrined in the American Convention and other international instruments. Guatemala ratified
the American Convention on May 25, 1978. Therefore the Commission has ratione
personaecompetence to examine the petition.
15. The Commission is competent ratione loci to take cognizance of the petition insofar as it
alleges violations of rights protected in the American Convention in the territory of a state
party to that treaty. The IACHR is competent ratione temporis insofar as the obligation to
respect and guarantee the rights protected by the American Convention had already come into
force for the State on the date the facts alleged in the petition are said to have occurred.
16. The Commission is competent ratione materiae because the petition alleges violations of
human rights protected by the American Convention on Human Rights. In addition, the
Commission is competent to take cognizance of this complaint pursuant to Articles III and XIII
of the Inter-American Convention on Forced Disappearance of Persons, ratified by the
Guatemalan State on February 25, 2000, which provides that the crime of forced
disappearance shall be considered continuing and permanent so long as no determination is
made as to the fate or whereabouts of the victim.
B.
Other requirements for admissibility of a petition
1.
Exhaustion of domestic remedies
17. Article 46.1.a of the American Convention provides that for a complaint submitted to the
Inter-American Commission to be admissible in keeping with Article 44 of the Convention,
domestic remedies must have been pursued and exhausted, in keeping with generally
recognized principles of international law. The purpose of this requirement is to allow the
domestic authorities to take cognizance of the alleged violation of a protected right, and, if
appropriate, to resolve it before it is taken up by an international body or mechanism.
18. In the instant case, the petitioners have alleged that they exhausted domestic remedies,
without these producing the effects hoped for. The State did not controvert or object to the
arguments made in this respect.
19. Based on a review of the record, it appears that since the illegal detention and forced
disappearance of Edgar Fernando García, his family filed several writs of habeas corpus
(recursos de exhibición personal), urged that the facts be investigated, made intense efforts
before authorities of the Executive branch 1, looked for him in detention centers, hospitals, and
1 In this respect, the record includes: letter of July 6, 1984 signed by the Chief of the High Command of National
Defense, to Nineth Montenegro de García and María del Rosario Godoy de Cuevas; telegram dated July 17, 1984
signed by the de facto Head of State to Ms. Nineth Montenegro de García; letter dated August 29, 1984 signed by the
Third Chief and Personal Inspector of the National Police to the Minister of Interior; letter dated August 31, 1984
signed by the Chief of the High Command of National Defense, informing Ms. Nineth Montenegro de García; letter of
September 1984 signed by the Minister of Interior.
3