Since the possible participation of State agents in these acts is not documented in the file, analysis of the
possibility of assigning international responsibility to the State needs to be based on the State's duty to
provide guarantees and, in particular, to prevent [such an outcome]. The duty to investigate will be addressed
later in this report.
84.
As for the duty to prevent, the IACHR observes that nothing in the file before the IACHR
indicates the existence of threats against Alejandro Yovany Gómez prior to March 13, 1995; nor is there
information suggesting that State authorities has been alerted to the possibility of such threats. Accordingly,
and as was the case in other similar cases, the Commission considers that analysis of the duty to prevent
should be conducted as of the moment at which the Guatemalan State became aware that Alejandro Yovany
Gómez had disappeared, that is to say, from the moment that the family filed the complaint on march 14,
1995. This takes into account that, once a complaint has been filed of the disappearances of a person under
the jurisdiction of a State, that State is required to make every effort to prevent impairment of the
disappeared person's personal integrity and life. Moreover, in certain cases, that duty to prevent is
heightened by the specific at-risk situation of the individual in question.
85.
The Commission believes that from the moment family members filed their complaint, it
should have been abundantly clear to the state authorities that the victim was in a situation of extreme
danger. The Commission considers that from that moment on the State knew that Mr. Gómez was at serious
risk. Worth mentioning, too, is that the preventive obligation of the State was heightened by the fact that the
impairment of trade unionists' rights was not only public knowledge at the time; the trade union's public
complaints to the Ministry of the Interior between the moment of his disappearance and the finding of his
body had, in addition, all made reference to Mr. Gómez's job as the secretary of finance of a trade union. Based
on that knowledge, the State was obliged to take immediate and specific steps to ascertain Mr. Gómez's
whereabouts.
86.
As mentioned earlier, the complaint regarding Mr. Gómez's disappearance was filed on
March 14, 1995 with the National Police. Mr. Gómez's corpse was found five days later, on March 19, 1995. In
the interval, the trade union Mr. Gómez worked for sent communications to the Ministry of the Interior and
the then President of the Republic requesting that steps be taken to find Alejandro Yovany Gómez.
87.
Nevertheless, it transpires from the file with the IACHR that the State took no steps to look
for Mr. Gómez between March 14 and 19, 1995. Nor is there any indication of a police report on the subject.
On the contrary, the petitioners alleged that on March 18, police officers told Mr. Gómez's father that "no
action had been taken and the police could not assign anyone to the case until the following Monday, when
the family would provide a vehicle to conduct the investigation because they (the police) did not have one.."
The Commission notes that the State did not contest those allegations; nor did it make any argument to show
that it had taken steps to look for Mr. Gómez in the five days between the denunciation of his disappearance
and the finding of the body.
88.
Accordingly, the Commission considers in the instant case that the failure to respond
immediately and diligently in the form of a search for Mr. Gómez in the five days during which he was
disappeared until the finding of his body was an unmitigated omission and therefore constituted failure to
comply with the duty to protect his rights to life and personal integrity, which, as the State knew, were at risk.
Moreover, considering that Mr. Gómez was deprived of his liberty before being killed, the Commission
considers that the State also failed to comply with its duty to protect the victim's right to personal liberty.
89.
The Commission considers that these conclusions are independent of the fact that it is not
known with certainty how much time elapsed between the deprivation of Mr. Gómez's liberty and his death.
Regarding this aspect, in the Case of Velásquez Paiz v. Guatemala, the Inter-American Court stated that
analysis of compliance with the duty to prevent should refer to measures that the State could reasonably be
expected to have taken under the circumstances of the specific case.95 Accordingly, until the finding of the
95 I/A Court HR. Case of Velásquez Paiz et al. v. Guatemala. Preliminary Objections, Merits, Reparations, and Costs. Judgment of
November 19, 2015. Series C No. 307, par. 109.
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