42
punishing those practices, in conformity with the American Convention and in this
case in light of the CIPST and the Convention of Belém do Pará.
141. Based on the foregoing, the State should have initiated, ex officio and without
delay, a serious, impartial and effective investigation of all of the facts of the
massacre related to the violation of the right to life and other specific violations
against humane treatment, such as the alleged torture and acts of violence against
women, with a gender perspective and in conformity with Articles 8(1) and 25(1) of
the Convention, and the specific obligations set forth in Articles 1, 6, and 8 of the
Inter-American Convention against Torture and 7(b) of the Convention of Belem do
Pará152.
C.2
Lack of investigation of those responsible and other omissions
142. Regarding the lack of investigation, arrest, and punishment of those
responsible, both the representatives and the Commission have indicated that
during the course of the investigation there have been a series of acts or omissions
by the state authorities which constitute a lack of due diligence and the denial of
justice. They have indicated that: the state authorities have thwarted the
investigation, which is reflected in that none of the masterminds are being
investigated; the arrest warrants against the accused have not been made effective;
some witnesses in the investigation have been threatened or intimidated and were
forced to leave the country; and the exhumation and identification of the victims of
the massacre has not been finished. In this regard, the State acknowledged to the
claims of the Commission and the representatives with regards to the rights
established in Articles 8(1) and 25(1) of the Convention.
143. The Court notes that according to the facts indicated in the background
(supra para. 76 and 77), at least 60 soldiers participated in the execution of the
massacre, without counting other perpetrators, masterminds, and general
participants in the facts153. However, as derived from the current investigation in the
domestic jurisdiction, only 20 people have been identified, hence the investigations
have not covered all of the allegedly responsible individuals. Likewise, several
judicial authorities have ordered and reiterated the arrest of at least 17 accused at
different times154. Nevertheless, only one of them was arrested, but was
subsequently released (supra para. 90). Consequently, the Court notes that in
general these orders have not been carried out, and the State itself has recognized
this.
152
Cf. Case of the Miguel Castro Castro Prison v. Peru, supra note 27, para. 378.
153
In the investigation by the Public Prosecutor’s Office, the testimonies of different people were
heard, “including: survivors, next of kin of the victims [the deceased…], Commander of the Post at Las
Cruces, Commander of Military zone number 23, the Army High Commander of that time, the soldiers who
comprised the High Command of Military Zone 23.” In this regard, according to the information provided
by the State, from this investigation it was established that the alleged fact was caused by a patrol
comprised of “approximately […] 20 persons [with] the support [of] a squad of 40 soldiers from Military
Zone 23” and that it was possible to “identify the kaibiles, but not the soldiers of the [aforementioned]
Military Zone” (State’s brief on the answer to the application, fs. 417 and 418). Subsequently, the
investigation was initiated in relation to 16 accused, and the corresponding arrest warrants were issued,
which have not been made effective to date (State’s brief on final arguments, f. 1178).
154
In April of 2000 the Court of First Instance of Petén reiterated twice the 17 arrest warrants issued
on October 7, 1999 and April 4, 2000 (supra para. 89). Nine of these were suspended as a result of the
Judgments of the Constitutional Court of April 3 and 4, 2001 (supra para. 90), and seven remained
effective, which were reiterated on March 7, 2002 (supra para. 92). On December 8, 2004 the
Constitutional Court ordered the judge on the case to annul all proceedings as of December 28, 1996
(supra para. 99).
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