166.
Specifically with respect to the duty to prevent, it “includes all those means of a legal,
political, administrative and cultural nature that promote the protection of human rights and ensure that any
violations are considered and treated as illegal acts, which, as such, may lead to the punishment of those
responsible and the obligation to indemnify the victims for damages.”211
167.
It follows from inter-American jurisprudence that insofar as a missing person's report is
concerned the response of the State is inevitably linked to the protection of the life and well-being of the
person reported missing. Whether the disappearance may have occurred at the hands of private citizens or at
the hands of state agents is immaterial where duty of the State to render an immediate and exhaustive
response is concerned. The Commission reiterates that “when there are reasonable grounds to suspect that a
person has been disappeared, it is essential for prosecutorial and judicial authorities to take prompt and
immediate action by ordering timely and necessary measures to determine the whereabouts of the victim or
the place where he or she might be deprived of liberty.”212
168.
In this case, there is nothing in the record before the IACHR to indicate either a situation of
prior threats or the persistence, at the time of the events, of the already examined context of the armed
conflict in Guatemala. In that regard, the Commission considers that the State's response must be analyzed
from the moment at which it was made aware that Mayra Angelina Gutiérrez was missing; in other words,
when the family filed the report on April 9, 2000. The Commission believes that the nature of the reported
facts should have made it abundantly clear to the state authorities that the victim was in a situation of
extreme danger. From that point forward, the Commission considers that the State knew, or should have
known, that Ms. Gutiérrez was in dire peril. It is also worth mentioning what the Court has said, in the sense
that at that time, when a woman was reported missing it was an indication to the State authorities that her
rights had likely been violated.213
169.
The Commission has already analyzed here the initial response of the State of Guatemala to
the report that Mayra Angelina Gutiérrez was missing. Specifically, the Commission concluded that for the
first 48 hours after the report the State did nothing to look for Ms. Gutiérrez and that over the ensuing weeks
the investigative procedures carried out were minimal and unrelated to the lines of inquiry that emerged the
moment the report was filed. Therefore, and bearing in mind the analysis in paragraphs 119–121 above, the
Commission considers that the lack of an immediate and diligent response in terms of mounting a search for
Ms. Gutiérrez as soon as the report was filed constituted a violation of the duty to protect her rights to life and
humane treatment, when the State was aware of the extreme danger that she was in.
170.
Based on the foregoing, the Commission concludes that the State of Guatemala violated its
duty to ensure rights, concretely its obligation to protect the rights to life and humane treatment recognized
at Articles 4 and 5 of the American Convention, taken in conjunction with Article 1(1) of that instrument, to
the detriment of Mayra Angelina Gutiérrez.
4.
Right to humane treatment (Article 5(1) of the American Convention in connection
with Article 1(1) thereof)
171.
Article 5(1) of the American Convention on Human Rights provides, “Every person has the
right to have his physical, mental, and moral integrity respected." The Inter-American Court has indicated
211
I/A Court H.R., Velásquez Rodríguez Case v. Honduras. Judgment of July 29, 1988, Series C No. 4, par. 175.
212 I/A Court H.R., Case of Anzualdo Castro v. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of September
22, 2009. Series C No. 202, par. 134; Case of Radilla Pacheco v. Mexico. Preliminary Objections, Merits, Reparations and Costs. Judgment of
November 23, 2009. Series C No. 209, par. 221; Case of Ibsen Cárdenas and Ibsen Peña v. Bolivia. Merits, Reparations and Costs. Judgment
of September 1, 2010. Series C No. 217, para. 167. See, also, Matter of Natera Balboa regarding Venezuela. (Provisional Measures) Order
of the Inter-American Court of Human Rights of February 1, 2010, preambular par. 13.
213 I/A Court H.R., Case of Veliz Franco et al. v. Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of
May 19, 2014. Series C No. 277, par. 147.
35