REASONED CONCURRING OPINION OF JUDGE ALIRIO ABREU BURELLI
When adding my vote to the other Judges of the Inter-American Court of
Human Rights, on the judgment of the Myrna Mack Chang vs. Guatemala Case, I
would like to submit, separately, the following considerations:
I
Based on what was narrated on the Judgment, the Inter-American
Commission on Human Rights claimed, in its application, that the State of Guatemala
is responsible for an arbitrary deprivation of the right to life of Myrna Mack, since her
murder, perpetrated on September 11, 1990, was a consequence of a military
intelligence operation arising from a previous and careful plan by the high command
of the Chief of Staff. Said plan aimed at, in the first place, disguising the abettors
and perpetrators of the murder, obstructing the police investigation, and leaving the
murder as much as possible immersed in impunity. The Commission added that the
State has not made used of all the available means to undertake a serious and
effective investigation for a complete elucidation of the facts, the process, the
prosecution and punishment of the responsible parties, both abettors and
perpetrators within a reasonable period. This situation has been aggravated by the
existence and tolerance by the Guatemalan State of mechanisms of fact and law
preventing the administration of justice.
The State has taken, in the proceeding before the Court, a complex attitude toward
the application filed by the Commission. First, it objected to preliminary objections
for not depleting the resources of internal jurisdiction, nullity of the subject of the
request, lack of veracity regarding the fulfillment of the State duty to persecute and
punish the stated violation, lack of solution of State statements regarding variation
and revision of the contents of the report by the Inter-American Commission on
Human Rights, that led to the filing of the application before the Court, lack of
assessment of State implementation of recommendations set forth in the report by
the Inter-American Commission on Human Rights, a wrong and extensive
interpretation of the recognition by the State of Guatemala; inadmissibility of the
application because the State did not solve issues related to the depletion of
resources of the internal jurisdiction during the procedural stage corresponding to the
declaration of admissibility of the case by the Inter-American Commission on Human
Rights, conflict of legal systems (national vs. Inter-American regional), to the
detriment of the right conferred on the State and the unions, and wrong
interpretation by the Inter-American Commission on Human Rights regarding
remedies, recourses, and the observance of the national legal system, represent by
themselves a violation of the human right to administer justice.
On February 18, 2003, the State dropped the preliminary exceptions, even when it
sustained as the leading defense to be considered, in the final judgment, its
allegation about “the wrong and extensive interpretation of the recognition by the
State.”
When dropping the preliminary exceptions, the State recognized the acceptance of
the following facts:
a)
the violation to the rights to life, integrity, and dignity of the human
person in the case of Myrna Mack Chang, on September 11, 1990, whose abetment,
guilt, and direct material liability, was declared by the court having jurisdiction in the
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