107
203. In the chapter on proven facts, lack of diligence and of willingness of the
courts was demonstrated, as regards moving the criminal proceeding forward to
elucidate all the facts pertaining to the death of Myrna Mack Chang and to punish all
those responsible. The Court will not analyze here the actions of each of the courts
that lacked due diligence (amparo remedies, constitutional motions, objections to
judges, interlocutory motions, motions regarding lack of competence, appeals for
annulment, requests for exemption under the National Reconciliation Law, among
others), but as an example it will only refer to the use of amparo remedies, the filing
and processing of which led those in charge of the criminal proceeding to incur
notorious delays in the instant case. It should be recalled, as the State expressly
affirmed in the May 29, 2001, report to the Inter-American Commission, that “[t]he
Government of Guatemala acknowledges that there have been procedural
vicissitudes, partly derived from excessive use of procedural remedies, but ones that
must be respected by the Government and the authorities […].”262
204. In the instant case the defendants have filed at least twelve amparo
remedies, as shown in the chapter on proven facts, all of which were found
inadmissible by the respective judicial authorities. The Court also notes, as pointed
out by the Commission and the representatives of the next of kin of the victim, that
these amparo actions paralyzed the proceeding for more than three years. The
judicial authorities did not process the amparo remedies with due diligence, for them
to be a rapid and effective remedy, but rather allowed them to become a tactic to
delay the proceeding, as it can be heard by up to four different instances.
205. In this regard, the representatives of the next of kin of the victim pointed out
that “[a]dministrating the amparo remedy in this manner [...] distorts the meaning
of the action, which becomes a means of fostering, permitting and tolerating
discussion in four different instances –e.g. the judge in charge of the investigation,
the appellate chamber, the Supreme Court and the Constitutional Court – of almost
all the court rulings, including those that are merely routine procedures.”
206. The Court notes that, as stated in the text entitled “Ley de Amparo, Exhibición
Personal y de Constitucionalidad”, and according to the expert testimony of Henry El
Khoury, the law itself places the amparo courts under the obligation to process and
rule on all amparo remedies filed against any judicial authority for any procedural
act. Therefore, the law itself places said courts under the obligation to process any
amparo remedy, even if it is “patently inadmissible,” as the various remedies filed in
this case were found to be.
207. However, the Court calls attention to the fact that in the criminal proceeding
under discussion, frequent filing of this remedy, although permissible according to
the law, has been tolerated by the judicial authorities. This Court deems that the
domestic judge, as a competent authority to direct the proceeding, has the duty to
channel it in such a manner as to restrict the disproportionate use of actions whose
effect is to delay the proceeding. Processing of the amparo remedies together with
their respective appeals was, in turn, conducted without complying with the legal
terms, as the Guatemalan courts took on average six months to decide each one.
This situation caused a paralysis of the criminal proceeding.
262
Cf. report by the Government of the Republic of Guatemala to the Inter-American Commission
on Human Rights, pages 2 and 3 (file with annexes to the application, annex 10, leaves 232 to 233).
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