said Commission (“CEH”), that one of them is to “Explain with all objectivity, equity,
and impartiality the violations of human rights and the acts of violence that have
caused suffering to Guatemalan people, linked to the armed conflict” and as a
consequence of it, “Prepare a report that includes the results of the investigations
carried out and that offers objective elements of judgment regarding the events
occurred during that period covering all factors, internal and external.”
Regarding the operation itself of the CEH, numeral III that regulates that aspect in
the corresponding Agreement of Establishment, literally states the following: “III)
The works, recommendations, and report of the Commission will not
individualize responsibilities or have legal purposes or effects.” It is in
reference to this numeral III that speculations have been made regarding if those
works, recommendations, and reports have an evidentiary value within trials or not.
This judgment makes it clear they do. In any case, it is obvious that this rule on the
operation of the CEH referred to the fact that said Commission could not become a
court and assign responsibility to any person individually considered.
C.- Lack of Jurisdiction of the Military Court. The fact that on June 10, 2008,
the Military Court of the Fourth Brigade of the General Infantry “Justo Rufino
Barrios”, of the municipality of Cuyotenango, department of Suchitepéquez, issued a
decision stating its lack of jurisdiction to continue with the investigation diligences
regarding the whereabouts of María and Josefa Tiu Tojín, responding to a request of
the Public Prosecutors’ Office of the Human Rights Section of the city of Guatemala
and that said military court forwarded the case file to the First Instance Court of
Criminal, Narcotic, and Environmental Offenses of the Department of the Quiché, can
be interpreted in two forms: the first as positive since the State of Guatemala itself,
as a result of this case and after the holding of the public hearing to receive
evidence, made this request and it was successful in the sense that the military
126
jurisdiction gave way, as should be, to the ordinary criminal jurisdiction.
However, the second interpretation of this same fact is concerning. As clarified in
paragraphs 46 and 70 of the Judgment, for more than 16 years the case of María
and Josefa Tiu Tojín remained in the investigation phase, period during which there
was no progress and the facts were not duly investigated by Guatemalan justice,
thus materializing a clear denial of justice and maintaining, even up to this date, a
complete impunity in this case. Even more so, the Court observes that this situation
of impunity is characteristic of similar facts occurred during the internal armed
conflict in Guatemala, becoming a determining factor that forms part of the
systematic patterns that allowed the commission of grave violations to human rights
during that time.”
I find the content of paragraph 118 of the Judgment extremely important and
relevant in what refers to the scope and limits, according to this Court, of the
military criminal jurisdiction (“restrictive and exceptional scope”). Therefore, there is
already jurisprudence that states that “when military justice assumes jurisdiction
over a matter that should be heard by the ordinary justice, the right to a competent
court and, a fortiori, the due process, which is at the same time intimately linked to
the right to a fair trial itself, is affected.” (see footnote number 112 of the
Judgment).
126
See paragraph 47 of the Judgment.
48
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