40
135. In this concrete case the Court has verified that the unjustified delay of over
15 years in the criminal proceeding is attributable not only to the indiscriminate use
of remedies by the accused, but also to the lack of will and interest of the State’s
judicial authorities who have heard them, since they have inadequately processed
the many remedies, as well as subjected the case to the procedure established in
the LRN (supra para. 126 and 127), which have been used to paralyze the criminal
proceeding. This situation has constituted an excessive violation of the reasonable
term and is attributable to the State.
C)
Lack of a complete and thorough investigation of the alleged
facts of the massacre and those responsible, and other omissions
C.1
Lack of investigation of all of the facts of the massacre
136. The Court observes that the investigation carried out in the internal
jurisdiction has not been complete and thorough, given that it only refers to
infringements to life, and not to those related to the facts of the alleged torture
against members of the community and other alleged acts of violence against the
children and female population. In this regard, the Commission indicated that “the
provisions of the […] Convention of Belém do Pará […] should be taken into
consideration, as they impose the obligation of acting with due diligence when
investigating and punishing acts of violence against women.” On the other hand, the
representatives requested of the Court to declare the State responsible for not
complying with the rights contained in Articles 1, 6, and 8 of the CIPST and 7(b) of
the Convention of Belém do Pará. Finally, the State did not accept the violation of
these Conventions “on the grounds [that] neither of them was effective for the State
at the time when the facts occurred, and both procedurally and substantively it is not
possible to claim a violation of a law or treaty which does not exist in the juridical life
of a State.”
137. The Court notes that in conformity with the American Convention, effective at
the time of the facts, the State had the obligation to investigate all of the facts with
due diligence, which was still pending at the time of recognition of the Court’s
contentious jurisdiction on March 9, 1987. This obligation was subsequently
confirmed by the State in the ratification of the CIPST on January 29, 1987 and the
Convention of Belém do Pará on April 4, 1995, therefore it had to guarantee
compliance as of that time144, even if they had not been adopted at the time of the
massacre. The Court has thus established that “[the State] has the duty to guarantee
the right of access to justice […] in conformity with the specific obligations set forth
in the specialized Conventions […] with regards to the prevention and punishment of
torture and violence against women. [T]hese provisions […] specify and complement
the State’s obligations regarding compliance with the rights enshrined in the
American Convention,” as well as the “international corpus juris on the matter of
protection of personal integrity (humane treatment)”145.
138. Specifically, the Court notes that although the complaint filed by FAMDEGUA
on June 14, 1994 was for the crime of murder to the detriment of those buried in the
community of Las Dos Erres, the statements of the ex kaibiles in the criminal
proceeding of May 27, 1997 indicated that “while they had them gathered […] they
began to torture the men so they would tell them where the weapons were and who
in the community were part of the guerrilla [and they] also raped some girls in front
of their parents.” Likewise, they indicated that “Instructor Manuel Pop Sun […] raped
[one girl] drastically” and that “that’s […] how they were massacring [and for
144
Cf. Case of the Miguel Castro Castro Prison v. Peru, supra note 27, para. 377.
145
Cf. Case of the Miguel Castro Castro Prison v. Peru, supra note 27, para. 276, 377 and 379.
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