27
B. 5. Regarding the fugitives from justice
88. The Court will now examine the issues relating to the fugitives from justice. The facts
show that, on April 12, 2000, the acquittal of 15 persons was annulled; that they were
detained and that the following month the case was transferred to the Trial Court (supra
paras. 61 and 62). The State has indicated that 11 of those persons are fugitives from
justice (supra paras. 66 and 76).
89. The Court has held that States, in investigating, must take all the actions necessary
to achieve the result that is sought (supra para. 81). Likewise, it has observed
circumstances that denote a failure to comply with the obligation to diligently investigate
in view of the lack of sufficient action to locate the whereabouts of the persons for whom
there is an arrest warrant.141
90. As part of the State’s arguments to sustain that it is not responsible for the violation
of Articles 8 and 25 of the Convention, it maintained that the arrest warrants are still in
force (supra para. 76). However, Guatemala did not explain what actions it had adopted
to put them into force. In other words, the Court does not possess information that would
indicate the actions that the State has taken during that period of 18 years. It should be
noted that due diligence in an investigation is not exhausted by decreeing measures that
are thought necessary, but rather it requires acts directed to obtain the desired result.
The Court notes that the failure to apprehend the persons in question have impeded their
prosecution, undermining the right of the alleged victims to access to justice. Therefore,
taking into consideration the time elapsed, the remarks of the State that the arrest
warrants are still in force, without indicating specific actions, is not due diligence, but
rather the contrary.142
91. The Court clarifies that it is not ruling on the criminal responsibility of the fugitives,
nor that they should be detained or preventively deprived of their liberty. It is the domestic
bodies that have considered it necessary to apprehend those 11 persons in order to
prosecute them and, if appropriate, determine the corresponding responsibilities.
92. The Court, thus, concludes that the actions of Guatemala in this aspect did not comply
with due diligence. This failure to comply has endured since April 12, 2000 and prejudices
the next of kin of the persons killed in the massacre, of the injured survivors and their
family members, who are listed in Annex B(1) of this judgment, which forms part of it.143
The Court understands the particular circumstances of this case, since the incident that
took the lives and caused the injuries occurred in a communitarian environment to which
not only the dead and injured persons belonged but also their family members. It is for
this reasons that the Court considers that all those family members were affected.144
Cf. Case of Ortiz Hernández et al. v. Venezuela. Merits, Reparations and Costs. Judgment of August 22,
2017. Series C No. 338, paras. 172 to 174.
142
What the Court expressed on another opportunity is relevant in this case: “the failure to apprehend those
responsible, besides perpetuating uncertainty in the victims as to the risks that they run, evidences that in
this case the State has not adopted the adequate measures in order to enforce its own decisions.” (Case of
Myrna Mack Chang v. Guatemala. Monitoring compliance of judgment. Order of the Inter-American Court of
November 16, 2009, considering paragraph 11).
143
According to information received by the Court, none of those persons died before April 12, 2000. The
determination of victims who are the next of kin of the deceased and injured persons, who are listed, where
appropriate, in Annexes B(1) and B(5) of this judgment, which forms part of it, was made pursuant to
indications of the Commission and the parties.
144
On other occasions, depending on the circumstances, the Court has found violations of the right to judicial
guarantees to the detriment of the next of kin of the persons whose right to personal integrity had been
violated. This occurred, for example, in the Quispialaya Vilcapoma case, where the Court found a violation of
141