69
inconsistent.292 The report indicates that a sketch was made of the site, but this is
not attached; there is no record of the position of the body in relation to the place
where it appeared, or who moved it prior to its recovery (supra para. 97). There is
no record of whether the victim’s hands were protected for subsequent examination;
how the evidence was positioned; the condition of the clothes and whether they had
blood stains, hairs, fibers; whether a search was made for footprints or other
evidence. Also, the corpse was taken to the morgue in a police vehicle. Moreover,
the “Photographic Report” sent to the Public Prosecution Office in March 2002 (supra
para. 113), almost three months after María Isabel’s body was found, contains eight
photographs that do not portray satisfactorily what is described in the abovementioned reports in relation to the scene of the crime (supra paras. 96 and 97);
d)
In view of the omissions in the report, in 2009, eight years after it was
prepared, the Public Prosecution Service tried to locate the police agents who had
taken part in the procedures in order to establish factual aspects related to the
position of the body and evidence at the time the body was found; specifically, if the
victim was in a bag. In this regard, a police agent testified before the Public
Prosecution Service on July 21, 2009, and indicated that “when [… he] arrived at the
crime scene” he moved away the “curious onlookers” and “the deceased was
covered, but [he did] not remember the position of the body owing to the time that
ha[d] passed.”293 In addition, on July 13, 2009, the Assistant Prosecutor of Agency
No 1 of the Mixco Municipal Prosecutor’s Office asked the Head of the Municipal Fire
Department of Guatemala City about the “procedures they were involved in on
December 18, 2001, on the site where the body of María Isabel Veliz Franco was
and, at that time, no forensic physician was assigned to the Prosecutor’s Office.” It should be added that, in his
expert report, he stated that if a forensic physician is not present for the removal of the body, “when the forensic
autopsy is performed, the forensic physician does not have important information such as: the original position of
the body, the condition of the body, indications and/or evidence found, amount of blood, data that should be
assessed in the final autopsy report.” He considered that “one of the main limitations in […] this case is that the
group that carried out the procedures of removing bodies did not include a forensic physician. Cf. Expert opinion
provided by José Mario Nájera Ochoa, supra. Similarly, the State acknowledged that, at the time of the events,
there was no forensic physician in the Mixco Municipal Prosecutor’s Office; consequently, “owing to the lack of a
forensic physician at the scene of the crime (for budgetary reasons),” the State, “to the best of its ability and in
keeping with the procedures in force at the time of the events, did everything possible with regard to the recovery
of the body.”
292
For example, the record of the recovery of the body on December 18, 2001, prepared by Assistant
Prosecutor I of Mixco Agency No. 5 merely includes a description of the physical conditions of how the girl’s body
was found, the clothes she was wearing, and different objects that were found in the pockets of the clothing (supra
para. 99). The site inspection report makes no mentioned of the position of the corpse but, in the record of the
removal of the body, the Assistant Prosecutor indicated that the corpse was in position “ventral decubitus” “face
downwards,” while, in the respective photographs, the body appears on its back (supra para. 113). In addition, the
expert describes the nylon cord as “white, black, brown and green,” but the Assistant Prosecutor describes it as
“black” (supra para. 99). Also, the Assistant Prosecutor describes “a cut on the upper part of the ear possibly
caused by a knife, […] bite marks on the upper arms,” and “abundant remains of food in the mouth and nose,”
aspects that were not described by the expert who carried out the site inspection. The same is true with regard to
“the large black nylon bag decorated with a picture of a kangaroo”; in the site inspection report, the expert
indicates that he “observed a large black nylon bag decorated with a picture of a white kangaroo about 25
centimeters to the southwest of the deceased’s head,” and in the same report he indicates that the Assistant
Prosecutor said that “it was placed […] on the face of the deceased.” However, this Court points out that the latter
observation was not mentioned by the Assistant Prosecutor in the record of the recovery of the corpse. The site
inspection report indicates that photographs were taken and a sketch was made of the site. These photographs
appear in the four-page PNC Photographic Report No. 1791-200, which contains eight photographs and which was
issued by the Site Inspection Service of the PNC Bureau of Criminal Investigation on March 3, 2002. However, this
photographic report is not accompanied by the sketch mentioned in the site inspection report issued by the expert,
according to the files provided by the parties. Cf. Site inspection report issued by an expert of the Site Inspection
Section of the Bureau of Criminal Investigation of the National Civil Police, supra; Report on recovery of the corpse
prepared by Assistant Prosecutor I of Mixco Agency No. 5, supra, and Photographic Report No. 4791-2001, supra.
293
Testimony of an agent of the National Civil Police of July 21, 2009 (file of annexes to the motions and
arguments brief, annex 112, fs. 12,641 and 12,642).