143. The Court observes that, in this case, the representatives filed three applications for
habeas corpus in favor of Mr. García in 1997. The information provided to the Court reveals
that, in response to these remedies, the judicial authorities requested information from
several State security agencies, such as the Ministry of Defense, the General Directorate of
the National Police, and the Treasury Police, and also carried out verifications and searches
in a detention center and at the Army’s Headquarters. All these measures were unsuccessful
(supra para 74). The Court recalls that one of the characteristic features of forced
disappearance is precisely “the refusal to acknowledge the detention and to disclose the fate
or whereabouts of the person concerned” (supra para 97), so that the mere formal
verification of the official detainee records, as occurred in this case, or the acceptances as
true of the denial of the detention by those presumably responsible, without an objective,
impartial and independent verification, is neither reasonable nor diligent and does not
constitute an effective remedy. Furthermore, the context in which the alleged detention was
carried out and its characteristics must also be taken into account, so that merely calling
out the name of the detainee in a randomly-chosen detention center, more than 10 years
after the date on which the detention allegedly occurred, is not an effective measure. 221
When investigating a presumed forced disappearance, the State authorities must take into
account the characteristic elements of this type of crime, 222 as well as the context in which
the facts occurred and their characteristics.
144. The Court also observes that Guatemalan law provides for a special investigation
procedure “if an application for habeas corpus has been filed, without finding the person in
whose favor it was requested, and there are sufficient grounds to suppose that he or she
has been arrested or held illegally” (supra footnote 213), which was precisely what
happened in this case. However, the Court notes that this procedure was not effective
either. Indeed, during the procedure, the Public Prosecution Service was called on to
investigate Mr. García’s detention and, once again, State authorities failed to implement
appropriate actions or proceedings to ensure the effectiveness of the formally established
remedies. In this regard, the information provided indicates that the Public Prosecution
Service merely interviewed Mr. García’s mother and requested information from the
National Police, which denied having any information for 1984 and, in particular, in relation
to a BROE operation on the day of Edgar Fernando García’s arrest 223 (supra paras. 75 and
76). Subsequently, this special investigation procedure was entrusted to the Ombudsman’s
Office, which was unable to obtain results until the chance discovery of the Historical
Archive of the Police in 2005.
145. The Court emphasizes that, in the instant case, the ineffectiveness of the way in
which the application for habeas corpus and the special investigation procedure were
processed is particularly evident, owing to the discovery of the Diario Militar and the
221
According to the record on the implementation of the said applications for habeas corpus by the judge
responsible for the case, the respective judge visited the Men’s Pre-Trial Detention Center in Zone 18 and the Army
Headquarters on December 2, 1997, where he verified the “Register of incoming and outgoing detainees” and the
“Register of those arrested,” respectively, and “proceeded to walk round [the detention centers] and call out for
Edgar Fernando García […] without obtaining an answer to this appeal; [hence, the measures were] unsuccessful.”
Record of the First Criminal Peace Court of December 2, 1997 (file of annexes to the Merits Report, tome II, annex
31, folios 601 and 602).
222
Cf. Case of González Medina and family members v. Dominican Republic, supra, para. 161.
223
In the record of the public hearing held on April 8, 1999, during the special investigation procedure, the
Public Prosecution Service reported that it had requested information about the individuals who formed part of the
BROE operation on the day of Mr. García’s arrest, to which the National Police advised “that they had proceeded to
look for the files for 1984, without having found them.” Record of the hearings held on April 8, 1999, in the special
investigation procedure before the Supreme Court of Justice (file of annexes to the Merits Report, tome II, annex
31, folio 508).
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