26
71.
Guatemala has acknowledged its failure to comply with its obligations in this
matter and has stated its commitment regarding the violations to human rights
committed in the past “under the precepts of justice, truth, reparation of the people,
and dignification of the victims in order to create a new identity toward the future,
which implies clarifying the whereabouts of those disappeared and making progress
towards a State respectful of human rights and that seeks national reconciliation.”
According to said policy, Guatemala has promoted actions within the framework of
the proceeding taken before the Inter-American Commission and before this Tribunal
in relation to this case (supra paras. 16 and 20), which must be acknowledged. The
Inter-American Court values positively that the military court of the Fourth Brigade
of General Infantry “Justo Rufino Barrios”, through its ruling of June 10, 2008
declined its jurisdiction to hear the case and established that the processes be
forwarded to the Courts of Ordinary Jurisdiction responding to a request of the
Prosecutors’ Office of the Human Rights Section of the City of Guatemala (supra
para. 20). This is consistent with the jurisprudence of this Court on this subject (infra
paras. 118 and 119).
72.
However, after more than 17 years since the detention and forced
disappearance of María and Josefa Tiu Tojín, the State’s obligations continue to be
unmet. Therefore, it is imperative that the State exhaust all the procedures
necessary in order to guarantee, within a reasonable period of time, the effective
compliance of its duty to investigate, prosecute, and, if it is the case, punish those
responsible for the facts of this case, as well as ensure the victims’ right to a fair
trial. The result of the proceedings must be made public, so that the Guatemalan
society can know the truth.
73.
Taking into account the aforementioned, this Tribunal will refer separately to
each of the requests of the Commission and the representatives, in what refers to
the mentioned obligation to investigate.
Due diligence in the investigation and pursuit of the facts of this case
74.
The representatives asked the Tribunal that it order the State to appoint,
before the ordinary justice system, a Special Prosecutor for the compliance with the
investigation of the facts of the present case.
75.
On November 26, 2008 the State informed that the investigation of the facts
of the present case has been transferred to the Public Prosecutors’ Unit for Special
Cases and Human Rights Violations (Historical Explanation), of which this Tribunal
takes note.
76.
On other opportunities the Court has established that the obligation to
investigate with due diligence acquires special intensity and importance due to the
gravity of the crimes committed and the nature of the rights infringed.84 In cases of
the forced disappearance of persons, such as the present, the Tribunal has
84
Cfr. Case of Goiburú et al. v. Paraguay, supra note 67, para. 84; Case of La Cantuta v. Peru.
Merits, Reparations, and Costs. Judgment of November 29, 2006. Series C No. 162, para. 157; and Case
of La Rochela Massacre v. Colombia, supra note 12, para. 156.