proceeding before the Court, and was assessed by the Court at the appropriate time”;
thus, it considered that “the State must forward the information regarding: (i) the
timetable for discussion of the legislative initiatives that were not approved by
Congress; (ii) the compatibility of the new legislative proposals under discussion, with
the standards established by the Court regarding the regulation of the remedy of
amparo, and, (iii) the measures being taken to guarantee the effective use of the
remedy of amparo while the corresponding amendment procedures are being carried
out.” On this last point, the Commission indicated that the State “had not forwarded
information.”
18.
Based on the foregoing, the Court observes that the information forwarded by
the State had already been provided during the merits proceeding of the present case,
prior to issuing the judgment. Taking this into consideration and also the comments of
the representatives and the Commission, this Court observes that the approval of an
amendment to the Law on Amparo, Habeas Corpus and Constitutionality in Guatemala
is currently dependent upon the drafting of amendments by the Constitutional Court,
because the bill that was before the Congress of the Republic had not been
promulgated. In this regard, the Court observes that, as mentioned by the State itself,
on March 28, 2008, the favorable opinion on the bill was forwarded to the
Constitutional Court for the drafting of the amendments to this law, without having
produced any results to date, four years later. Therefore, the Court considers that the
State must report on all the specific new initiatives, actions and measures, and their
results, that have been implemented by the State in order to make progress towards
amending the Law on Amparo, Habeas Corpus, and Constitutionality in Guatemala,
and also on the measures it has adopted to guarantee the effective use of amparo
while the corresponding law is being amended, in order to assess compliance with this
measure of reparation.
C) Obligation to proceed with the exhumation, identification and return of
the remains of those who died during the massacre (eleventh operative
paragraph of the judgment)
19.
The State indicated that “the Public Prosecution Service, in a communication of
March 11, 2010, advised that the Forensic Anthropology Foundation of Guatemala
(hereinafter “FAFG” or “the Foundation”) was appointed as the expert to perform the
exhumations.” In addition, it indicated that these exhumations were commenced on
April 6, 2010, and that “the procedures for the extraction and classification of skeletal
remains concluded on April 13, 2010, when they were transferred to the FAFG
laboratory for the extraction of samples and subsequent DNA testing.” In addition, the
State reported that the extraction of samples from the exhumed remains is currently
being carrying out in order to map the DNA profiles to compare them with the DNA
samples taken from the surviving next of kin. In this regard, the State indicated that
“the remains “had not been classified individually, which has delayed their
classification […]. Also, owing to the ground conditions, the remains are in poor
condition; therefore, there is a risk that it may not be possible to extract the DNA
samples, which will complicate the individualization and full identification of the
victims.”
20.
The representatives observed that the “participation of the FAFG in the
implementation of this measure has been crucial in ensuring that it can be considered
a true measure of reparation.” They stated that said the Foundation’s work has been
“characterized at all times by the highest technical and professional quality, but also
by the enormous compassion of its entire team, who have given special attention to
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