15 39. After the massacre, the military personnel were “immediately confined” and faced “criminal proceedings” in the “First Military Court of Jalapa.”57 The soldiers were “detained […] in the Remand Center of the Second Corps of the National Police in the Department of Jalapa.”58 40. Rigoberta Menchú Tum presented herself as a joint complainant (“querellante adhesiva”)59 in the proceedings and, on October 31, 1995, submitted a brief to the Military Judge of Jalapa, claiming that he lacked jurisdiction, independence and impartiality and that the case should be tried in the ordinary criminal courts and not before the military jurisdiction. She also claimed that there had been a “flawed treatment […] in the manner that the investigation was being conducted” and acts in violation of due process.60 On November 2, 1995, the military court of Jalapa denied the request of Ms. Menchú.61 She appealed that decision. On January 31, 1996, the Fifth Chamber of the Court of Appeals, located in Jalapa, held that the crimes committed were ordinary crimes and ordered the transfer of the case to the Second Court of Cobán, Alta Verapaz.62 41. According to information presented to the Commission, before February 28, 1996 the Public Prosecution Service (hereinafter also “the PPS”) presented six statements requesting measures of evidence, which were ignored. On that same day, the defense again challenged the remittance to ordinary jurisdiction and requested that the case be returned to the military jurisdiction. This request was rejected by the Criminal Chamber of the Supreme Court of Justice” (hereinafter “Supreme Court).63 42. In May 1996, various evidentiary procedures were carried out: on the 14th, the trial judge inspected the locale of the incident; on the 15th, the body of Santiago Coc was exhumed and, on the 17th, a ballistic test was performed at the request of the Prosecutor of the PPS assigned to the case.64 Observations of the State to the initial petition, presented to the Commission on December 8, 1995, supra. Observations of the State to the initial petition, presented to the Commission on December 8, 1995, supra. 59 The judicial authorities, in the domestic proceedings, used the expression “querellante adhesiva” (cf. Minutes of the session of November 25, 1998 (evidence file, annex 24 to the Merits Report, fs. 329 to 701)), as did the parties on different occasions (cf. Brief of the petitioners to the Commission of May 11, 2010 (evidence file, annex 6 to the Merits Report, fs. 63 to 84)) and communication of the State to the Commission of May 24, 1996, supra. Rigoberta Menchú Tum also used the same terminology in presentations to the judicial authorities (cf. Case No. JM-028.95. Brief of Ms. Menchú Tum of October 31, 1995 (evidence file, annex 9 to the Merits Report, fs. 93 to 136)). According to Article 116 of the Code of Criminal Procedure of Guatemala, “passed” by the “legislative body” on September 28, 1992, “[in criminal actions, the complainant with civil capacity or his or her representative or guardian in case of incapacity may initiate criminal prosecution or join one already initiated by the Public Prosecution Service. This same right may be exercised by any citizen or group of citizens against public officials or employees who might have directly violated human rights in the exercise of his or her functions or upon the occasion of it, or when it concerns crimes committed by public employees who abuse their position. State bodies, except for autonomous bodies with legal personality, must channel their complaints through the Public Prosecution Service.” (cf.http://www.cicad.oas.org/fortalecimiento_institucional/legislations/PDF/GT/decreto_congresional_5192_codigo_procesal_penal.pdf) 60 Case No. JM-028.95. Brief of Rigoberta Menchú Tum of October 31, 1995, supra. 61 This was noted in paragraph 68 of the Report on the Merits as one of the facts that the Commission held as “proven.” The Commission, as proof, provided the “Decision of November 2, 1995 of the Military Judge of the Department of Jalapa in Criminal Case 028-95,” a copy of which is attached to annex 10 of the Report on the Merits (evidence file, fs. 138 to 144). However, some of it is partially illegible. 62 Cf. CEH, Guatemala: Memory of Silence, supra, Volume VI, Illustrative Cases, Annex 1, Illustrative Case 3: Xamán Massacre, p. 41 and communication of the petitioners of September 10, 1996 to the Commission (evidence file, annex 11 to the Merits Report, fs. 146 to 165). 63 Cf. Communication of the petitioners of September 10, 1996, addressed to the Commission, supra. 64 Cf. Communication of the State to the Commission of May 24, 1996, supra. 57 58