…she had no contact with the Gader firm, much less participate in the Gader contracting
process. Furthermore, through Executive Order No. 278/99 she had allegedly requested that
the process through which the Gader firm was contracted be checked; the contract was then
cleared with the City Council. Furthermore, the audit reports found no criminal liability on
the part of the accused, who allegedly did not authorize any payment to the firm. Once the
payments were discontinued as requested in Communication No. 095/99 of October 5, 1999,
the checks had been reprogrammed to cancel the checks to the GADER firm. There is,
therefore, insufficient evidence of the crimes being charged, namely fraud, criminal
conspiracy and mismanagement of public resources.
293. The Commission observes that the evidence analyzed in the judge’s final decision in the
investigative proceeding of January 18, 2007, was in the record from the beginning of the investigation in
2000, and that on December 15, 2011, when the Criminal Examining Court (Liquidador) of the capital issued
the definitive dismissal in favor of Ms. Andrade Salmón, relied on the failure of the municipality of La Paz to
submit new evidence. Accordingly, while the State has asked the Commission to consider the complexity of
the case and the existence of numerous accused, when it comes to analyzing the possible violation of Article 8
of the Convention, the State has not proven that the case was especially complex as regards the purported
participation of Ms. Andrade in the alleged commission of a crime, and that this complexity resulted in it
taking 11 years and almost eight months to resolve the case.
294. The Commission also observes that according to the facts proven the criminal proceeding
included many accused, approximately 18 persons (including Ms. Andrade Salmón), and that while the
accused may have filed many objections and procedural motions, these were provided for by the domestic
legislation and regulations. In addition, the Commission recalls that it is the domestic judge, and the authority
competent to direct the process, who has the duty to move it along so as to restrict the disproportionate use
of actions that may have dilatory effects.313
The right to effective judicial protection therefore requires that the judges direct the
proceeding in such a way as to avoid undue delays and obstructions that lead to impunity,
thus frustrating due judicial protection of human rights.314
295. The Commission notes, in relation to the actions of the judicial authorities, that while on May
9, 2000 Ms. Andrade asked the Third Criminal Examining Judge to have the matter return to the Public
Prosecutor’s Office as the procedure of random assignment had been violated, the Commission is not aware
that this requirement was contested. Nonetheless, the Constitutional Court annulled what had been done in
the proceeding on October 23, 2000 due to the failure to randomly assign the proceeding and the
precautionary measures, on ruling on a motion filed by another co-accused, with which the proceeding had to
go back to its initial stage. Accordingly, the Commission notes that almost five months were lost in the
processing of the matter due to the deficient action of the judicial authorities.
296. The Commission also notes that on January 21, 2004, the proceedings were once again
annulled up to the judge’s final decision in the investigative proceeding of August 24, 2002, that is, the
procedure was brought back one year and almost five months. In addition, the Commission wishes to
highlight that from the information that appears in the record, it appears that there was no significant
procedural activity by the State from August 13, 2005, the date on which the extinction of the criminal action
against Ms. Andrade and other co-accused was denied, and January 18, 2007, the date on which the judge’s
final decision in the investigative proceeding was issued, with respect to which the preliminary dismissal was
decreed in favor of Ms. Andrade.
313
I/A Court H.R., Case of Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of November 25, 2003. Series C No.
101, para. 207.
314
I/A Court H.R., Case of Myrna Mack Chang v. Guatemala. Merits, Reparations and Costs. Judgment of November 25, 2003. Series C No.
101, para. 210.