38
Court considers that the rehabilitation of the victims of the present case has already
been endured with the payment of the pecuniary compensation.
iv) Guarantees of non-repetition
112. The Commission requested that the State be ordered to adopt the fight
against impunity as a public policy. Similarly, it requested that the Court order
Guatemala to adopt all the measures necessary to avoid military justice from
assuming the investigation and prosecution of the violations to human rights
committed by members of the police force. In this sense, during the public hearing,
the Commission stated that “Article 2 of Legislative Decree No. 41-96 limited the
jurisdiction of military courts and established […] that the common or related
offenses committed by soldiers correspond to regular courts, but it did not establish
a mechanism for the transfer of the case files from the military criminal justice
system to the regular one, even though there is a decision of the Supreme Court” in
this regard. Based on the aforementioned, it requested that “the stipulations of said
legislative decree be carried out in all cases and the investigation case files withheld
in the military jurisdiction be transferred immediately to the civil jurisdiction.”
113. The representatives asked the Court that it order the State to “adopt all the
measures necessary to avoid the military justice system from getting involved in
past cases, specifically cases in which the alleged responsible parties are or have
been members of the armed police force, as a measure to avoid the prevalence of
impunity in this type of offense.”
114. Upon this Tribunal’s request (supra para. 8), the State forwarded a copy of
Legislative Decree 41-96 of June 12, 1996, which in its second article establishes
that “the jurisdiction in the essentially military crimes or offenses corresponds
exclusively to the courts assigned in this Law. In the cases of common or related
crimes or offenses committed by military officers, the Code of Criminal Procedures
will be applied and they will be prosecuted by the regular courts referred to in the
Law of the Judicial Body.”
115. Similarly, the State forwarded a copy of Agreement No. 26-96 of July 22,
1996 of the Supreme Court of Justice, through which it agreed, based on the
mentioned legislative decree (supra para. 114), that “the Lower Military Court of the
Department of Guatemala shall transfer all documents, processes, books, and case
files in its power to the Secretariat of the Supreme Court of Justice, which will
distribute them among the Courts of the First Instance for Criminal, Narcotics, and
Environmental Offenses of this department, pursuant with the agreements of
territorial jurisdiction in force.” The State also forwarded a copy of the initiative of
Law No. 2794, heard by the Full Congress of the Republic of Guatemala on January
21, 2003, and the pronouncement of the National Defense Commission of said
Congress of November 30, 2004, which states the approval of the New Military
Criminal Code and submits it to the Consideration of the Congress in Full.
116.
In this regard, the expert Helen Mack stated that:
the personal military [jurisdiction was] established [in Guatemala in] 1870 and [was] in
force until the year 1990. […] Any case that reached the military courts […] remained in
impunity, […] from traffic accidents to murder […] [thus] the resistance that a case […]
of human rights violations were to be discussed in the civil courts. The scope of this
reform is that it has allowed at least some access, but obviously with many obstacles, to
the obtainment of information. […] There was an order from the Supreme Court of
Justice […] after the derogation of the military jurisdiction so that all the case files of the
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