I/A Court H.R., Case of Tiu Tojín v. Guatemala. Merits, Reparations and Costs. Judgment of November 26, 2008. Series C No. 190.

Non official brief

 This summary is also published in the website of the Council of Europe in the following link: www.venice.coe.int/files/Bulletin/B2009-1-e.pdf

 

Headnotes:

Since the forced disappearance of persons is a crime of a continuous or permanent nature, if its author persists in his or her criminal behaviour at the time that the crime of forced disappearance of persons is typified under domestic criminal law, the new legislation will be applicable with respect to that offence.

 

Given their special vulnerability, access to justice requires that victims of human rights violations who are members of indigenous communities can understand and make themselves understood in legal proceedings, and that they do not have to make excessive or exaggerated efforts in order to access centres for the administration of justice.

 

Summary:

 

I. On 29 August 1990, María Tiu Tojín and her month-old child, Josefa, were forcibly disappeared by members of the Guatemalan Army and Civil Self-Defence Patrols, which arrived at the "Community of Population in Resistance" known as "La Sierra," and captured 86 of its residents. This community was made up of groups of families that had been displaced and had sought refuge in the mountains in order to resist the strategies of the Guatemalan Army against the population displaced during the armed conflict. The 86 detainees were transferred to the military base in Santa María Nebaj, where María Tiu Tojín and her daughter were seen for the last time. At the time of her detainment, María Tiu Tojín was linked to the Council of Ethnic Communities Runujel Junam (CERJ) and to the National Committee of Widows of Guatemala, organisations that advocated resistance to participation in Civil Self-Defence Patrols during the internal armed conflict in Guatemala. In October and November 1990, three petitions for habeas corpus were filed on their behalf. Of these, two were dismissed and one was forwarded to the military justice system. There, criminal proceedings remained at their preliminary stage for more than 16 years, without significant progress in investigations. During the proceedings before the Inter-American Court, the case was transferred back to the ordinary criminal court system at the request of the Human Rights Section of the Public Prosecutors' Office of the City of Guatemala.

 

On 28 July 2007, The Inter-American Commission on Human Rights (hereinafter, the "Commission") filed an application against the State of Guatemala in order to determine its responsibility for the alleged violation of Article 4 ACHR (Right to Life), Article 5 ACHR (Right to Humane Treatment), Article 7 ACHR (Right to Personal Liberty), Article 8 ACHR (Right to a Fair Trial), and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR (Obligation to Respect Rights) and Article I of the Inter-American Convention on Forced Disappearances of People (hereinafter "Inter-American Convention on Forced Disappearances"), to the detriment of María and Josefa Tiu Tojín; Article 19 ACHR (Rights of the Child), to the detriment of Josefa Tiu Tojín; and Article 5 ACHR (Right to Humane Treatment), Article 8 ACHR (Right to a Fair Trial), and Article 25 ACHR (Right to Judicial Protection), to the detriment of their next of kin. The Commission stated that it valued that the State's efforts in seeking to repair, at least in part, the violations it incurred. However, it highlighted that impunity persists in this case, and that it is a duty of the Guatemalan State to provide an adequate judicial response, establish the identity of those responsible, and locate the remains of the victims in order to adequately repair their next of kin. The representatives of the victims agreed with the Commission and requested that the Court order the State to comply with all of the measures of reparation it had offered the victims in a settlement accorded while the case was in proceedings before the Commission.

 

II. Taking into account its acknowledgment of international responsibility, the Court held that the State violated the rights to life, humane treatment, personal liberty, fair trial, and judicial guarantees and protection enshrined in Articles 4, 5, 7, 8 and 25 ACHR, in relation to Article 1.1 ACHR and that the State tolerated the practice of forced disappearances prohibited by Article I of the Inter-American Convention on Forced Disappearances, to the detriment of María and Josefa Tiu Tojín. The Court also held the State responsible for the violation of Article 19 ACHR, to the detriment of the child Josefa Tiu Tojín, and the violation of Article 5 ACHR to the detriment of Victoria Tiu Tojín, sister and aunt of the victims. Additionally, the Court found the State in violation of Articles 8 and 25 ACHR with respect to María and Josefa Tiu Tojin's next of kin.

 

The Court found that the damages accorded in the State's settlement with the victims were adequate in light of its jurisprudence on reparations. However, the Court ordered that the State take all measures necessary to guarantee, within a reasonable time, effective compliance with its duty to investigate, prosecute, and, if applicable, punish those responsible for the facts of this case, and that it ensure the victims' right to a fair trial. The Court also ordered that the State provide access to all the documentation, information, and resources, including logistic and scientific resources, necessary to do so, and that the result of the proceedings be made public so that Guatemalan society may know the truth. Additionally, the Court held that even though the crime of forced disappearance had not been typified at the time Tiu Tojín and her daughter were last seen alive, because their whereabouts were still unknown when that typification came into force, the facts of this case must be investigated and prosecuted as a forced disappearance, and not merely as a kidnapping.

 

The Court also held that in order to guarantee access to justice, the State must ensure that the victims, members of the Maya indigenous community, can understand and make themselves understood in legal proceedings through the use of interpreters or other effective means. Additionally, the State was ordered to ensure that the victims did not have to make excessive or exaggerated efforts in order to access centres for the administration of justice, and was required to pay an amount for the expenses that will be incurred during proceedings in the ordinary courts. The State must also proceed immediately in search of the remains of María and Josefa Tiu Tojín, and, if they are found, must cover the costs of burial. Furthermore, the Court ordered that parts of its Judgment be published in the nation's Official Gazette and another national newspaper of widespread circulation, and that they be disseminated through a radio station with broad coverage in the Department of Quiché on at least four Sundays in both Spanish and the native language Maya K'iché.

 

Finally, as a guarantee of non-repetition, the State was ordered to transfer all judicial case files whose subject matter was not directly related to the duties of the armed forces, particularly those that entailed the prosecution of human rights violations, from military to regular criminal jurisdiction, in accordance with its domestic legislation.

 

Judge ad hoc Álvaro Castellanos Howell wrote a concurring opinion.