51 detention of Florencio Chitay Nech.202 On November 4, 2004, the Second Court of the First Criminal Instance, Narcotic-Activity and Offenses against the Environment of Guatemala declared inadmissible the appeal and the decision was notified to Pedro Chitay on November 23, 2004.203 185. On March 2, 2009, the COPREDEH presented a report before the Public Ministry with foundation in Articles 298 and 300 of the Code of Criminal Procedure (Decree 51-92 of the Congress of the Republic), for the forced disappearance of Florencio Chitay Nech,204 which was assigned to the Public Prosecutor’s Office on Human Rights, under the case file No. MP2009-28,390. The Public Prosecutor’s Office required information about the disappearance of Florencio Chitay Nech from various State institutions, 205 and summoned the next of kin to make statements. Likewise, it required information from the Supreme Electoral Tribunal regarding the DCG party, and about the elections held in the year 1978 in San Martín Jilotepeque, all of which indicated they did not possess information or had not yet responded. Also, the Public Prosecutor’s Office had established some lines of investigation.206 In August of 2009, Encarnacion and Pedro, both with the last name of Chitay Rodriguez, went to report before the Public Prosecutor and during the months of October or November of the same year, they left their samples of DNA at the Anthropology Forensic Foundation of Guatemala.207 186. To date, the investigation is in its initial stage and thus has not offered results, and no accusation was been formalized, nor have the whereabouts of Florencio Chitay Nech been located. 2. The lack of effective investigation 187. The Commission and the representatives alleged the violation of the rights to truth, to a fair trial and to judicial protection because the State has not carried out an investigation of the facts to identify and punish those responsible, although it had knowledge of the same, and for the same it must have begun the investigation motu proprio, even in absence of a report from the next of kin, because the kidnapping was a crime which may be prosecuted ex oficio. The State has not justified the delay of more than twenty-nine years in investigating the facts, nor has it determined the whereabouts of the remains of Florencio Chitay. The Commission manifested that after filing the report, the next of kin of Mr. Chitay Nech could not present another judicial action due to the monitoring and threats they suffered, and for the fear of their mother that another member of their familial nucleus could be forcibly disappeared. Regarding what the appeal of habeas 202 Cf. Orders of the Judge of Peace of 15 of October of 2004 and of the National Civil Police of 18 of October of 2004 (annexes of the petition, annex 6, fs. 130 and 134). 203 Cf. Order of the Second Criminal Instance Court, Narco-activiy and Offenses to the Environment, of 4 of November of 2004 (brief of Preliminary Exceptions, Merits, Reparations and Costs, prueba para mejor resolver presentada por el Estado el 10 of March of 2010, Tome V, f. 882). 204 Cf. Complaint filed by the Executive Director of COPREDEH (annexes to the response to the petition, annex III, fs. 1631 a 1634). 205 Cf. Letters to the Public Proecutor on March 25, 2009 to the Citizen Registry, to the Unified Tributary Registry, of the National Civil Police, and of 26 of March of 2009 to the Supreme Electoral Court, the Office of Criminal Investigation, and the historical archive (annexes to the response petition, annex III, fs. 1670 a 1692). 206 Cf. Report of Investigation of 14 of May of 2009 (annexes to the response petition, annex III, fs. 1699 a 1701). 207 Cf. Statement of Pedro Chitay Rodríguez, supra note 55.