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with the preamble of the Inter-American Convention on Forced Disappearance, the
systematic practice of the forced disappearance of persons constitutes a crime
against humanity and, as such, entails the consequences established in the
applicable international law.
Need to avoid differentiated obstacles in detriment of the victims of the present case
as members of the Maya Ixil Indigenous People
92.
The Commission argued that, “it is very important that the Court examine the
differentiated impact of the impunity processes on the indigenous people of
Guatemala as well as the differentiated social and cultural obstacles faced by them
when accessing the instances of criminal justice that shall investigate those crimes.”
Similarly, it indicated that “the impunity for grave violations against human rights
committed during the internal armed conflict against the Maya people and its
members reaches levels of such a magnitude that they necessarily lead us to
conclude that the remains of a racist and discriminatory culture continue to permeate
ample sectors and spheres of the Guatemalan society, reflecting itself in a special
manner on the justice administration system.” The Commission indicated that this is
due, mainly, to five factors: a) lack of intercultural training of justice operators; b)
limiting factors to the physical access to judicial institutions; c) high costs of the
processing of judicial processes and the hiring or attorneys; d) a single language in
the development of judicial processes; and e) behaviors and practices of a
discriminatory type by the justice operators.
93.
On its part, the representatives argued that:
One of the main obstacles in this case is economic resources; the next of kin of María
and Josefa, [are] farmers with little resources, which in no way would allow them to
assume the representation costs of an attorney in order to formally become Plaintiffs
and promote the investigation in this case […].
The language of the next of kin of María and Josefa is K´iche´, and as could be
observed during the hearing they require a translator in order to be able to transmit
information and request the same. The main bodies of the justice administration –the
Judicial Body and the Public Prosecutors’ Office- do not have a permanent translator
system, thus the possibility that […] they promote the process for themselves becomes
even more difficult.
Similarly, discrimination and racism on behalf of the operators of justice towards the
indigenous and poor population does not allow or make the presentation of complaints
or their promotion easy and even less so the possibility to go to trial for any of the cases
related to the internal armed conflict, when many of the people who were victims of
grave violations, in their majority of the indigenous population, are accused of being
communists and members of the guerrilla when any of these facts is reported.
94.
The State did not refer to this matter in its arguments.
“the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as
defined in applicable international law and shall attract the consequences provided for under such
applicable international law.”
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