50
imprisonment against all the other accused Treasury Police agents, on the ground that
"[a] detailed study of the evidence showed that there was insufficient motive for
maintaining the order of provisional imprisonment issued against the defendants." All
the accused were required to post bail.
(cfr. Order of the Seventh Court of Criminal First Instance of July 26, 1988; order of the Seventh Court of
Criminal First Instance of July 27, 1988; communication No. C-165.of.7o.- of August 23, 1988, signed by the
Officer of the Seventh Court of Criminal First Instance).
o.
The two decisions ordering the release of those implicated were appealed and on
October 18, 1988 the Tenth Chamber of the Court of Appeal confirmed them individually,
deeming them consistent with the law. However, that Chamber altered the defendants’ situation
and ordered that they be granted an absolute release instead of a provisional release on bail.
(cfr. Order (I) of the Tenth Chamber of the Court of Appeals of Guatemala of October 18, 1988, and order
(II) of the Tenth Chamber of the Court of Appeals of Guatemala of October 18, 1988).
p.
No significant progress was made with the investigation and after the aforesaid
decision by the Tenth Chamber of the Court of Appeal the case is still open and at the
indictment ("sumario") stage, although the State has claimed that on September 10,
12, 14 and 22, 1987 it undertook action, the outcome of which is unknown to the
Court.
X
IMPUTABILITY
90.
This Court must decide in the present Judgment whether the facts
demonstrated may or may not be imputed to the State. This calls for a detailed
examination of the conditions in which a particular act or omission that impairs one or
more of the rights enshrined in the American Convention may be attributed to a State
Party and, consequently, calls into question its responsibility in accordance with the
rules of international law.
91.
Unlike domestic criminal law, it is not necessary to determine the perpetrators’
culpability or intentionality in order to establish that the rights enshrined in the
Convention have been violated, nor is it essential to identify individually the agents to
whom the acts of violation are attributed. The sole requirement is to demonstrate that
the State authorities supported or tolerated infringement of the rights recognized in
the Convention. Moreover, the State’s international responsibility is also at issue when
it does not take the necessary steps under its domestic law to identify and, where
appropriate, punish the authors of such violations.
92.
Guatemala has never disputed that it was Treasury Police agents who detained
several of the victims and later brought them before the judicial authorities. Where the
victims who were deprived of their liberty and cruelly murdered are concerned, the
State maintained that those acts were committed by common criminals and not by its
agents, so that it could not be held responsible for them.
93.
Despite that assertion, this Tribunal is of the view that the body of evidence
concerning the modus operandi in all the cases reveals a similar pattern in the
arbitrary arrests or kidnappings of the victims and the murder of several of them: they
were committed by armed individuals wearing military or police dress and others
wearing civilian clothes; they used light-colored "vans" with tinted windows without
license plates or with private plates; the perpetrators acted with total freedom and
impunity; they neither hid their faces nor acted stealthily; rather, the arrests were
made in broad daylight on a public thoroughfare or within view of witnesses and the
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