42
reparation. Therefore, in this case, the right to the truth generates an expectation
that the State must satisfy for the victim’s next of kin.56
82.
In light of the above, to provide reparations for this aspect of the violations
committed, the State must effectively investigate the facts in the instant case to
identify, try, and punish the direct perpetrators and masterminds of the forced
disappearance of Marco Antonio Molina Theissen. The result of the proceeding must
be made known to the public, so that Guatemalan society may know the truth.
83.
The Court notes that the State must ensure that the domestic proceeding to
investigate, try, and punish those responsible for the facts in this case attains due
effect. Furthermore, the State must abstain from resorting to mechanisms such as
amnesty, the statute of limitations, or establishing measures to eliminate
responsibility, as well as measures that seek to impede criminal prosecution or to
suppress the effects of the conviction.
84.
With respect to compliance with this obligation to investigate and punish, the
Court has ruled that:
[…] all amnesty provisions, provisions on prescription and the establishment of
measures designed to eliminate responsibility are inadmissible, because they are
intended to prevent the investigation and punishment of those responsible for serious
human rights violations such as torture, extrajudicial, summary or arbitrary execution
and forced disappearance, all of them prohibited because they violate non-derogable
rights recognized by international human rights law;57
b)
Obligation to search for the remains of the victim and deliver them to his next
of kin
85.
With respect to guarantees of non-recidivism of the facts of the instant case,
the Commission and the representatives of the victim and his next of kin asked the
Court to order the State to establish the whereabouts of the remains of the victim
and to deliver them to his family. The Court deems that the State must find and
deliver the mortal remains of Marco Antonio Molina Theissen to his next of kin, for
them to bury those remains in accordance with their customs and beliefs.
Furthermore, the State must provide the conditions required to transfer said remains
to the place chosen by his next of kin, at no cost to them, and to satisfy the will of
the family regarding the burial.
c)
Publication of the pertinent parts of the Judgments of the Court
86.
As it has ordered previously,58 the Court also deems that, as a measure of
satisfaction, within three months of the date of notification of the instant Judgment,
the State must publish at least once, in the Diario Oficial and in another national
daily, both the Section called Facts Established in Chapter V and operative
paragraphs One to Five of the judgment on the merits issued by the Court on May 4,
56
See Case of Myrna Mack Chang, supra note 2, para. 274; Case of Trujillo Oroza. Reparations,
supra note 51, para. 114; and Case of Bámaca Velásquez. Reparations, supra note 51, para. 76.
57
Case of Barrios Altos. March 14, 2001 Judgment. Series C No. 75, para. 41 and See Case of
Myrna Mack Chang, supra note 2, para. 276; and Case of Bulacio, supra note 2, para. 116.
58
See Case of Myrna Mack Chang, supra note 2, para. 280; Case of Bulacio, supra note 2, para.
145; and Case of Juan Humberto Sánchez, supra note 14, para. 188.
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