34
110. In the case of Mack Chang v. Guatemala the Court ruled on the institution of
the appeal for legal protection in Guatemala, expressing that:
[…] as derived from the text of the “Law on the Appeal for Legal Protection, Habeas
corpus, and Constitutionality”, and according to the expert opinion of Henry El Khoury,
the law itself places the courts of appeal under the obligation to process and rule on all
appeals for legal protection filed against any judicial authority for any procedural act.
Therefore, the law itself places said courts under the obligation to process any appeal for
legal protection, even if it is “expressly inadmissible,” as the various remedies filed in
this case were found to be.118
111. It is worth noting that in the instant case the counsel of the accused in the
massacre have filed at least 33 appeals for legal protection, of which 24 were
denied119 and some took up to four years to be resolved. Additionally, these
decisions were later appealed before different instances, which implied that the
processing of the appeal for legal protection would be extended (infra para. 114).
There has been an evident delay in the processing and adjudication of those
remedies, which is not compatible with Article 25(1) of the American Convention.
Although the Court considers that the appeal for legal protection is an ideal remedy
to protect human rights in Guatemala, its scope and lack of admissibility
requirements has resulted in that in some of these cases the delay is excessive and
paralyzes justice.
112. In the instant case the appeals for legal protection submitted in the internal
proceeding exceeded their processing within the terms established by the law.
Hence, the representatives and the Commission argued that only five of the appeals
were resolved in less than one year, 19 were resolved in one to two years, four took
over three years to be resolved, and one took four years and five months.
113. In this regard, witness Edgar Fernando Pérez Archila declared before this
Court on the excessive length of the processing of the appeals for legal protection in
the case of the Las Dos Erres massacre, in comparison to other cases of a similar
nature heard at the same time, and indicated that “the average for the first instance
was approximately six months[, and] the average for the second instance was
approximately 320 days”120. Likewise, in her expert opinion, Ms. Claudia Paz y Paz
Bailey expressed that “the average processing of the appeals for legal protection in
the case of Las Dos Erres largely exceeds the [problem] of the general average
processing time of appeals for legal protection”121. This situation has also been
asserted by international bodies122.
118
Case of Myrna Mack Chang v. Guatemala, supra note 18, para. 206.
119
From the review of the file before the Court it is inferred that four appeals for legal protection
were granted, 24 were turned down, and one is pending resolution before the Constitutional Court. The
documents related to the rest of the appeals for legal protection were not provided in the appendixes by
the parties to the instant case.
120
In this regard, said expert indicated that “[i]n 2003 a study was performed, as well as verification
by the Ombudsman Office of Guatemala, which assessed the 31 appeals submitted to that date. The
average for the first instance was approximately six months, and for the second instance 320 days. This is
a much longer term than the judicial custom, and in my experience as a litigation attorney in Guatemala,
than the processing of appeals for legal protection in common cases.” Statement of witness Edgar
Fernando Pérez Archila, rendered in the public hearing held before the Court in La Paz, Bolivia, on July 14,
2009.
121
Cf. Expert Opinion of Claudia Paz y Paz Bailey rendered before the public hearing held before the
Inter-American Court in La Paz, Bolivia, on July 14, 2009.
122
See, inter alia, the Report of the UN High Commissioner of Human Rights on the activities of the
office in Guatemala, A/HRC/4/49/Add.1 of February 12, 2007, para 30, which indicates that “[t]he filing of
delaying appeals for legal protection continues affecting cases of transitional justice. In this regard, Bill No.
3319 on amendments to the appeal for legal protection is still pending before Congress.” Likewise, the
High Commissioner “urge[d] Congress to approve […] the amendments to the Law on the Appeal for Legal
Protection, Habeas corpus, and Constitutionality.”
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