of the rights recognized in Articles 8(1) and 25(1) of the Convention, in relation to Article 1(1)
of this instrument, to the detriment of Alexander Yovany Gómez Virula, Antonio Gómez Areano
and Paula Virula Dionicio.
B.1. Due diligence in the investigation
67. The Court will now examine: (a) the measures taken prior to the discovery of the alleged
victim’s body; (b) the initial measures following the discovery of the body, and (c) the
omissions in following up on logical lines of investigation and in gathering evidence.
B.1.a. Measures taken prior to the discovery of the body
68. The Commission and the representatives have alleged that the State did not act with
due diligence when the disappearance of the alleged victim was reported on the evening of
March 14, 1995. In this regard, it should be underscored that the reports filed advised that
the alleged victim, who was a member of the RCA labor union, had disappeared on March 13,
1995, at approximately 7.30 p.m.110 In addition, on March 15, 16 and 17, 1995, UNSITRAGUA
issued a communiqué to the public at large and two urgent telegrams addressed to the Ministry
of the Interior expressing its concern owing to the possible relationship between Mr. Gómez
Virula’s disappearance and his membership of the RCA labor union.
69. The Court considers that, pursuant to the obligations established in the American
Convention, States must investigate missing persons reports. The level of due diligence
required will depend on the specific characteristics of the person presumably missing. It should
be recalled that the alleged victim was a labor union leader involved in a labor conflict with
RCA following the company’s closure. The reports filed by the alleged victim’s family and
UNSITRAGUA made the State aware of the possible connection between the alleged victim’s
disappearance and his union activities.
70. In the instant case, the State did not take any measure the day after receiving the report
of the disappearance. According to a report of the National Police, on March 16, 1995, two
officers went to the RCA offices but could not obtain any information because the company
had closed down its operations. Subsequently, they went to the home of Mr. Gómez Areano
and could obtain no additional information. The same day, the officers went to the men’s
prisons in Zone 18, and to the corresponding judicial organ, without any positive result. On
March 17, 1995, the officers went to the home and the workplace of a woman who, according
to information they had received, was in a relationship with the alleged victim, but were unable
to find her.111
71. These measures were insufficient to consider that the State acted with the due diligence
required in the case of a missing person, as in this case. Thus, for example, taking into account
the communiqués and reports made by UNSITRAGUA, it would have been fundamental to go
to the UNSITRAGUA offices to obtain information, to ask other members of the union who had
seen Mr. Gómez Virula on March 13, 1995, for information, or to investigate in whose name
RCA was registered or who were the people in charge of the company.
72. Consequently, this Court considers that the actions taken by the State prior to the
discovery of the body were not in keeping with the duty to investigate with due diligence.
Cf. Communication of March 14, 1995, signed by the Deputy Head of the Criminal Investigations Department
of Guatemala addressed to the prosecutor of the Public Prosecution Service (evidence file, folio 464), and Report filed
before the Ombudsman on March 14, 1995 (evidence file, folio 412).
110
Cf. Report of the Missing Persons Investigation Section of the National Police of March 19, 1995 (evidence file,
folio, 455).
111
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