39. The Commission has determined that although Helen Mack, one of the petitioners in this case
before the Commission and family member of Myrna Mack, has had formal access to the domestic
remedies, she has not had effective and real access to those domestic remedies. She has not
been able to obtain a trial of all persons against whom there exist serious indicia of participation
in the murder of Myrna Mack, as determined by the organisms of the State of Guatemala
including the Supreme Court.
40. Helen Mack engaged in repeated efforts to insure that all persons responsible for her sister's
death were tried in a single proceeding. However, she could not achieve that result, because
some Government agents did not properly carry out the investigation of the case and others
refused to provide the evidence necessary to carry out such a trial. In addition, the Guatemalan
Courts refused to provide for the simultaneous processing of all persons responsible for the
murder. As a result, it became necessary to begin a second criminal proceeding to process the
persons who had not been tried in the first proceeding. In this second proceeding, the private
accuser Helen Mack has again been denied access to the evidence which would allow her to
support her accusation against all of the persons responsible for the death of her sister. The
absence of certain witnesses whose testimony would have provided greater elements of proof to
assist in clarifying the responsibility of all of the defendants also limits the accusation in this
second proceeding and prejudices its result.
41. The investigation carried out by the Guatemalan police in the Myrna Mack case suffered from
clear deficiencies in the protection and gathering of the evidence which would tend to clarify the
crime and the identity of those responsible. The evidence which the police failed to properly
gather and protect would have clarified the participation of persons other than Beteta within the
first judicial proceeding and would have been of use in properly trying those other defendants in
the second proceeding.
42. The private accuser constantly appealed to governmental and judicial authorities to obtain
access to the relevant evidence, basing her requests on Guatemalan law and filing every
appropriate remedy to obtain the documentary and other evidence in possession of officials of the
EMP and the Army. However, her requests for evidence were rejected on formalistic grounds. The
judicial authorities did not provide adequate legal grounding for the denials. Even after the Court
of Appeals finally ordered that the requested evidence be produced, the Government again
refused to provide certain evidence. In addition, at this late date, the testimony of at least five
witnesses considered by the petitioners to be vitally important can no longer be effectively utilized
in the case. Some of the witnesses have left the country and others refuse to ratify testimony
that they previously gave. The evidence necessary to properly pursue this case against all of the
persons named by the Guatemalan authorities as responsible for the crime is simply not available
any longer.
43. The Commission also finds that there has been an unwarranted delay in the domestic
proceeding. Only four years after Myrna Mack's death did the Guatemalan Supreme Court finally
order that a criminal case be opened against all of the suspected intellectual authors of the
murder and the material authors who worked with Beteta in the commission of the crime. Two
more years have passed and this new proceeding remains in the investigative stage. There is no
indication that the proceeding will move forward or that the facts of the murder will be clarified.
On the contrary, the manner in which the previous proceeding developed creates a reasonable
expectation that this proceeding will not achieve any affirmative result. In conclusion, almost six
years have lapsed since the murder of Myrna Mack, and the State of Guatemala still has not
issued a final decision in the case relating to her death and there exists no indication that such a
decision is forthcoming in the near future.
44. The requirement of prior exhaustion of domestic remedies allows the State to resolve a case
through the legal means available within the jurisdiction of that country before being brought
before an international forum. However, the mere fact that domestic proceedings continue cannot
imply that the Commission may not take jurisdiction of case. Such a rule would permit a State to
carry out inefficient and ineffective investigations and domestic judicial proceedings, prolonging
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