32
by the State, the events of the Las Dos Erres Massacre have not been duly
investigated, nor have those responsible been prosecuted and punished […] which
constitutes a violation to Articles 8 and 25 in relation to Article 1(1) of the
Convention.” On the other hand, the representatives expressed that twenty-six
years have passed and none the responsible parties have been punished, therefore
the State has not complied with its obligation to investigate, prosecute and punish
those responsible. Additionally, the representatives indicated that “the impunity and
lack of complete and true information on that occurred in the massacre has caused
the States’ violation of the right to the truth, thus breaching Articles 8, 25, and 13
of the Convention.” On the other hand, the State acknowledged the claims of the
Commission and the representatives regarding the violation of the rights established
in Articles 8(1) and 25(1) of the Convention, according to Article 1(1) thereof, based
on the petition filed by FAMDEGUA. In addition to the above, the State expressed
that it had taken several steps to obtain justice, and reiterated its commitment to
conduct a serious and effective investigation and a criminal trial to identify the
alleged responsible parties.
103. In light of the parties’ indication of the various irregularities that have
impeded the victims’ effective access to justice, the Court will address this issue in
the following three sections: A) Application of the “Law on the Appeal for Legal
Protection, Habeas Corpus, and Constitutionality” in Guatemala (hereinafter “Law on
the Appeal for Legal Protection”); B) Delay and inapplicability of the “Law on
National Reconciliation” (hereinafter “LRN”), and C) Lack of a complete and
thorough investigation of the facts of the massacre, as well as other omissions.
104. It is worth noting that this Court has expressed that, according to the
American Convention, the States Parties are obligated to provide effective judicial
remedies to the victims of the human rights violations (Article 25), remedies which
should be substantiated in conformity with the rules of due process (Article 8(1)), all
of this within the general obligation of the same States, to guarantee the free and
full exercise of the rights recognized by the Convention for any person under its
jurisdiction (Article 1(1)).108
105. Likewise, it has indicated that the right of access to justice must ensure,
within a reasonable time, the right of the alleged victims or their next of kin, to have
everything necessary done to uncover the truth of the events and to punish those
responsible.109
A)
Application of the “Law on the Appeal for Legal Protection”
106. As derived from the facts of the case, the appeal for legal protection has
been used as a practice to delay the criminal proceeding (supra para. 90, 91, 96, 98
to 100). Even the State, in its brief on the answer to the application, when
recognizing its responsibility, indicated that “[…] in practice, the constant and
frivolous use of the appeal for legal protection has merited that different Bodies of
the State discuss the implementation of measures that allow attacking the
inadequate use of this constitutional action.” This Court, in the Case of Mack Chang
against the State of Guatemala already ruled on the defects of the appeal for legal
108
Cf. Case of Velásquez Rodríguez v. Honduras. Preliminary Objections. Judgment of June 26, 1987.
Series C No. 3, para. 91; Case of Bayarri v. Argentina. Preliminary Objections, Merits, Reparations, and
Costs. Judgment of October 30, 2008. Series C No. 187, para. 103, and Case of Kawas Fernández v.
Honduras, supra note 21, para. 110.
109
Cf. Case of Bulacio v. Argentina. Merits, Reparations, and Costs. Judgment of September 18,
2003. Series C No. 100, para. 114; Case of Zambrano Vélez et al. v. Ecuador. Merits, Reparations, and
Costs. Judgment of July 4, 2007. Series C No. 166, para. 115, and Case of Kawas Fernández v. Honduras,
supra note 21, para. 112.
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