36
Protection, and has indicated that “Bill No. 3319 submitted to Congress […] presents
general modifications that would allow for the reduction of abusive use of the appeal
for legal protection.”
119. From the elements indicated, it is inferred that the appeal for legal protection
in Guatemala has been used as a delaying instrument. Expert Claudia Paz and Paz
Bailey indicated that:
the jurisprudence of the Constitutional Court has exceedingly expanded the possibility of
filing remedies in the processing of judicial proceedings. This has caused, on the one
hand, the saturation of the constitutional system, in 2007 the Constitutional Court
received almost 4000 (four thousand) files, 4000 cases, but it also allowed for the appeal
for legal protection to be used to delay, suspend and impede processes. Also, it is used
maliciously, but with the justice system as an accomplice. The structure of the appeal for
legal protection is also very difficult and with excessive processes.128
120. In this case the Court notes that the provisions that regulate the appeal for
legal protection, the lack of due diligence and tolerance by the courts when
processing them, as well as the lack of effective judicial protection, have allowed the
abusive use of the appeal as a delaying practice in the proceeding. Likewise, after
over 15 years since the criminal proceeding began, and 27 years since the
occurrence of the events, this proceeding is still in its initial stage, to the detriment
of the victims’ rights to know the truth, and in the identification and punishment of
all those responsible and obtaining the corresponding reparations.
121. In light of the above, the Court believes that the appeal for legal protection is
an adequate remedy to protect individuals’ human rights, since it is suitable to
protect the juridical situation infringed, as it is applicable to acts of authority that
imply a threat, restriction or violation of the protected rights. However, in the
instant case the current structure of the appeal for legal protection in Guatemala
and its inadequate use have impeded its true efficiency, as it is not capable of
producing the result for which it was conceived.
122. It is important to mention that the general duty of the State to adapt its
internal law to the provisions of the American Convention so as to guarantee the
rights embodied therein, as established in Article 2, implies the adoption of
measures in two regards. On one hand, this includes the suppression of laws and
practices of any nature that imply a violation to the guarantees set forth in the
Convention. On the other hand, it implies the promulgation of laws and the
development of practices that are conducive to an efficient observance of these
guarantees,129 which has not been materialized in the case of the appeal for legal
protection. The Court notes that the parties have coincided in considering the
abusive use of the appeal for legal protection as a delaying tactic in the instant case.
123. The State expressed that it is discussing the Bill to amend the Law on the
appeal for legal protection, Decree No. 1-86 of the National Constituent Assembly,
which was presented to the Congress of the Republic of Guatemala by the Judges of
the Supreme Court of Justice, with the “goal of converting the process of the appeal
for legal protection into an extraordinary, brief and efficient system, in conformity
with the protection of the fundamental rights of individuals, and minimizing the
inconveniences that have occurred in the administration of justice.” Nevertheless,
the Court notes that at the time of issuing of the instant Judgment the obstacles for
128
129
Cf. Expert opinion of Claudia Paz y Paz Bailey, supra note 121.
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations, and Costs. Judgment of May 30,
1999. Series C No. 52, para. 207; Case of Heliodoro Portugal v. Panama, supra note 23, para. 180, and
Case of Reverón Trujillo v. Venezuela, supra note 29, para. 60.
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