12
and having seen the arguments filed by the parties regarding the determination of
possible reparations, the Court considers that the controversy persists, therefore it
will determine, in the corresponding chapter, the appropriate reparations for the
instant case, bearing in mind the requests of the representatives and the
Commission, and standards of the Inter-American System for the protection of
human rights on this matter.
38. The Court considers that the attitude of the State is a valuable contribution to
the development of this proceeding, to the fulfillment of the judicial functions of the
Inter-American System for the protection of human rights, to the effectiveness of the
principles underlying the American Convention, and to the conduct to which States
are bound in this regard,21 as a result of the commitments undertaken as parties to
the international instruments on human rights.
V
PRELIMINARY OBJECTION RATIONE TEMPORIS
39.
The State filed the objection ratione temporis on the grounds that although
the claims presented by the Commission in the application are susceptible to be
heard by the Court, the alleged violations of the rights contained in Articles 4 (Right
to Life), 5 (Right to Humane Treatment), 17 (Rights of the Family), 18 (Right to a
Name), and 19 (Rights of the Child) of the Convention claimed by the representatives
in their brief of pleadings and motions, occurred between December 6 and 8, 1982,
therefore they should not be heard by the Court, on the grounds that Guatemala
recognized the Court’s contentious jurisdiction on March 9, 1987. On different
occasions the State has reiterated its request to declare the Court’s lack of
jurisdiction regarding the alleged violations due to the preliminary objection filed.
40.
The Commission considered that “given the nature and scope of the
arguments of fact and law contained in the application, it may not make observations
on the preliminary objection filed by the […] State.” During the public hearing the
Commission added that the facts set forth in its application for hearing by the Court
are those which refer to the investigation as of June 14, 1994, and it clarified that
those facts cannot be omitted, as their seriousness allows the determination the
extent of the obligation to investigate in the instant case.
41.
The representatives argued, in relation to the alleged violations of Articles 4
(Right to Life), 5 (Right to Humane Treatment), 17 (Rights of the Family), 18 (Right
to a Name) and 19 (Rights of the Child) of the Convention, that “the Court has
jurisdiction to rule on the facts which constitute the violations, even if they began
occurring before [the State recognized the Court’s contentious jurisdiction,] as they
extended beyond that date [or] occurred after that date.” During the public hearing
and in its brief of final arguments, the representatives clarified that they were not
requesting for the Court to extend its jurisdiction to 1982, but to take into account
those facts in order to determine the State’s obligations regarding those rights, after
March 9, 1987.
42.
With regard to the alleged violation of Articles 4 (Right to Life) and 5 (Right to
Humane Treatment) of the Convention, the representatives argued that the State is
responsible for the lack of investigation and the consequent violation of the duty to
guarantee the right to life and humane treatment of the individuals who were
21
Cf. Case of Carpio Nicolle et al. v. Guatemala. Merits, Reparations, and Costs. Judgment of
November 22, 2004. Series C No. 117, para. 84; Case of Valle Jaramillo et al. v. Colombia. Merits,
Reparations, and Costs. Judgment of November 27, 2008. Series C No. 192, para. 46, and Case of Kawas
Fernández v. Honduras. Merits, Reparations, and Costs. Judgment of April 3, 2009. Series C No. 196, para.
32.