investigation against the individuals who could really be threatening the Foundation’s personnel
and the Peccerelli family.” The representatives also forwarded an explanatory table of all the
threats reported by the FAFG from 2002 to April 2010, based on which they concluded that,
during this time, there had been 64 different acts of intimidation carried out by different means
and against different persons related in one way or another to the Foundation. In 11 of these,
the Public Prosecution Service had presented “an administrative result of the investigation,”
while, in 29 cases it had not presented any result. The representatives recognized that some
progress had been made in the investigations, but expressed their concern since “most of the
complaints filed had not been truly investigated, because the investigations were based on
interviews and, without further investigation, the assumption that the information provided was
true, correct and did not implicate anyone.” In this regard, they asked “that the judicial
investigation be conducted more thoroughly to include all the events, thus avoiding the bias
with which it has been carried out to date”; “that the FAFG be notified promptly and periodically
of the findings of any subsequent investigations,” and “that, in light of the significant differences
of opinion between the beneficiaries and the current prosecutor in charge of the case, [the
latter] be relieved of this case […] and a special prosecutor be appointed, or […] another
prosecutor from […] the Office of the Human Rights Prosecutor of the Public Prosecution
Service.”
39.
On April 22, 2010, the Commission indicated that “it [was] necessary to establish a clear
and coherent line of investigation into the facts and the corresponding responsibility and for the
interested parties to have access to it.” Subsequently, in August 2010, it expressed concern
“that the investigations conducted by the State up until this time have not identified those
responsible for the threats and that the beneficiaries do not have adequate access to the
corresponding information.” It considered that this, added to the new threats to the
beneficiaries of the measures, revealed that the State was not complying fully with all aspects
stipulated in the Court’s Orders. During the above-mentioned public hearing, it emphasized that
the State had not presented detailed information regarding the investigation of the events that
occurred after January 2009. In addition, in February 2011, it insisted that the absence of a
clear line of investigation that was coherent with the facts would not permit “identification of the
source of the risk to the beneficiaries,” and that the information provided by Guatemala “was
very general and did not permit a clear, overall assessment of the results required [in this
matter].”
40.
The Court observes that, in its Order of January 26, 2009, it asked the State for specific
information on “the investigation of the facts that led to the adoption of these provisional
measures.”21 However, the Court finds it pertinent to clarify that although, previously, during
the processing of these provisional measures, its criteria had been to request the State to
investigate the facts that had led to the respective provisional measures and to report to the
Court in this regard, taking into account the characteristics of these provisional measures and
the fact that they have been in place for more than four years, the Court now finds that the
issue of the investigation would require it to make an analysis of the merits, which is beyond
the scope of the provisional measures.
41.
Nevertheless, the Court reiterates that Article 1(1) of the Convention establishes the
general obligation of the States Parties to respect the rights and freedoms recognized therein
and to ensure to all persons subject to their jurisdiction, the free and full exercise of those
rights and freedoms. Consequently, irrespective of the existence of specific provisional
measures, the State is obliged to guarantee the rights of individuals in a situation of risk, and
21
Cf. Matter of the Forensic Anthropology Foundation of Guatemala, supra note 14, third operative paragraph.
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