98
could only be tried by military courts. For this reason, these persons never
appeared in the proceeding against Noel de Jesús Beteta Álvarez as accused,
their preliminary examination statement was never taken, and they were not
prosecuted. Therefore, the court closed the investigation outside its sphere of
competence and in an arbitrary manner. The private accuser had to litigate
for over two years to attain annulment of the closing of an investigation that
had not formally begun;
h)
another obstacle in the way of the proceeding against those accused as
accessories was the determination of which court would be competent. Rapid
determination of competence is an indispensable condition to exercise the
rights guaranteed by Articles 8(1) and 25(1) of the Convention. The only
acceptable circumstance to tolerate a longer term to define competence of the
intervening court was the legal modification that abolished the military courts
where the proceeding had begun against the three accused. This discussion
on competence caused the unnecessary intervention of several courts and
forced the private accuser and the Public Prosecutor’s Office to have to answer
arguments that sought to deflect the procedural activity regarding the
investigation and that caused continuous paralysis of the proceeding, despite
the fact that the remedies filed by the parties did not legally require a stay of
the proceeding;
i)
the accused Edgar Augusto Godoy Gaitán, Juan Valencia Osorio and
Juan Guillermo Oliva Carrera filed “eleven” amparo remedies, all of which
were turned down. The ruling on each amparo took, on average, 6 or 7
months, and the legal term is thirty days. This adds up to 47 months, that is,
a net excess of three years and four months of unjustified paralysis of the
proceeding beyond the legal terms. In other words, the judicial authorities did
not comply with the legal terms to rule and to notify the ruling, and in
practice the amparo remedy constituted a mechanism that acted as a direct
cause of denial and delay of justice, as it allowed and tolerated a discussion in
four different instances. Despite the legal provisions in force, processing of
the amparo remedy several times led, unnecessarily, to paralysis of the
proceeding for unjustifiable periods; and
j)
the State lacks the political will to prosecute, try, and punish the
members of the Presidential General Staff responsible for the murder of Myrna
Mack Chang. This attitude is clearly illustrated by the annulment ruling by
the Fourth Chamber of the Court of Appeals. On May 7, 2003, said Chamber
annulled the conviction against Juan Valencia Osorio, stating as only motive a
non-existing contradiction in the first instance judgment, without
substantiating its ruling in any way.
Pleadings of the State
161. As stated by the Court in paragraphs 94 and 111, the State acquiesced
unconditionally to the facts described by the Commission in its application and to the
request that the Court find that there was a violation of Articles 8 and 25 of the
Convention.
Considerations of the Court
162.
Article 8(1) of the American Convention sets forth:
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