Case of Chitay Nech and others v. Guatemala
The Inter-American Court ruled in the case of the forced disappearance of a Mayan community leader in Guatemala during the armed conflict that occurred between 1962 and 1996.
1. The facts of the case and the proceedings before the Inter-American System
Between 1962 and 1996, Guatemala underwent a period of internal conflict which saw several serious human rights violations. Similar to other states in the region, Guatemala employed a “National Security Doctrine,” essentially entailing a political strategy of eliminating groups ideologically opposed to the government in power by means of extrajudicial executions and forced disappearances. In the specific case of Guatemala, the internal conflict resulted in more than 200,000 victims. The vast majority of human rights violations were perpetrated against persons of various Mayan ethnicities by the State or paramilitary groups, like the Civilian Defense Patrols, acting with State approval.
Florencio Chitay Nech was a member of a Mayan Kaqchikel community and participated in various social, cultural, and political activities. At the time of his disappearance, he had been named mayor of San Martín de Jilotepeque in the Department of Chinaltenango, after both the first and second mayor had been kidnapped and disappeared. After receiving numerous threats and much harassment, beginning even before being named mayor, he decided to move with his family to Guatemala City. There, he was eventually detained by a group of armed men in the presence of his son Estermerio, who was then five years old.
After his disappearance, Mr. Chitay Nech´s family filed a complaint with the National Police, and searched various hospitals and morgues. In addition, representatives of his political party publicized his kidnapping in a press conference. However, 29 years have passed with no knowledge of his whereabouts.
2. Grounds of the sentence
As in the other cases concerning the forced disappearance of persons, the Court reiterated that the forced disappearance of persons violates multiple rights. It is also, by nature, on-going: the criminal act of a forced disappearance continues until discovery of the victim or the victim’s remains. Along these lines, the Court in this case analyzed the rights violations that resulted from the forced disappearance of Mr. Chitay Nech, including the right to recognition of juridical personality, to life, to personal integrity, to liberty, and to political rights.
The Court pointed out that for an event to constitute a forced disappearance it must satisfy the following conditions: the State, or third-party agents acting with State approval, must deprive a person of liberty. The State must then later deny that detention or refuse to offer information about that person’s whereabouts or fate.
Because Guatemala only consented to the Court’s jurisdiction seven years after the events in question, the on-going nature of forced disappearances is particularly important for the analysis of this case in that it is this element that allows the Inter-American Court jurisdiction over the complaint.
Right to personal liberty
The Court began its analysis of the multiple violations of human rights that Mr. Chitay Nech suffered by evaluating whether the State was responsible for violating the victim’s personal liberty. The Court approached this right with the idea that it is the deprivation of a person’s liberty that initiates a forced disappearance, and that such disappearance only concludes when the person is once again at liberty or their remains have been found. According to the Court, a deprivation of liberty under the terms of the American Convention must respect those requirements previously established by a state’s political constitution or the structural and procedural laws dictated in accordance with that constitution. In Mr. Chitay Nech’s case, not only were these requirements unmet, but 29 years passed without news of his fate or whereabouts. With regard to this the Court pointed out that a state not only has the obligation to respect the right to personal liberty, but also has the obligation to investigate its violation. Especially when there are signs of a forced disappearance, a state has the obligation of initiating a serious and effective investigation, court-appointed and without delay, even when private claims have not been presented.
The Court concluded by declaring Florencio Chitay Nech the victim of a forced disappearance because his detention was illegal and motivated by political reasons, and because his detention and whereabouts were kept hidden. Similarly, the State also failed to fulfill its duty to investigate the events.
Right to personal integrity
The Court considered as proven the violation of Mr. Chitay Nech’s right to personal integrity because a person’s forced disappearance involves being kept in complete isolation, infringing upon this right. The Court also added that to put a person at the disposal of state agents or others acting with state approval that arbitrarily torture or execute persons is itself contrary to the obligation to prevent violations of the rights to physical integrity and to life, even when the facts cannot be proved or tested in a particular case.
Right to life
The Court observed in various cases that the forced disappearance of persons often signifies the extrajudicial execution of those disappeared and the concealment of any evidence that facilitates the identification of those responsible for or aware of the crime. Similarly, the Court held that the victim in this case was made vulnerable in such a way as to necessarily suggest that he was the victim of multiple human rights violations, especially since the case took place within a framework of systematic human rights violations. Thus, the fact that there was still no news of Mr. Chitay Nech’s fate or whereabouts 29 years after his disappearance led the Court to find a violation of the right to life, even though an appropriate investigation had yet to be carried out.
Right to the recognition of juridical personality
The greater vulnerability to which the victims of forced disappearances are exposed is rooted in the state’s denial of their existence, the uncertainty with respect to their position in the juridical and institutional order, and the impossibility of exercising their rights – that is to say, in the violation of their right to the recognition of juridical personality. When a state does not recognize that it has deprived a person of liberty, and claims to know nothing of his whereabouts, it prevents that person from exercising his rights, and thus rejects the recognition of his juridical personality. To address this issue, the Court held that the State has an obligation to assure the recognition of the juridical personality of the citizens in its territory. Juridical personality stipulates a person’s existence before society and the state, and allows persons to have and freely exercise rights and obligations. According to the Convention, the right to a juridical personality cannot be repealed under any circumstance.
In this particular case, given the State’s responsibility for the forced disappearance of Mr. Chitay Nech and considering that since his detention in 1981 there has been no information about his whereabouts or fate, the Court ruled that Guatemala violated his right to the recognition of juridical personality.
Political rights
Taking into account that the forced disappearance of Florencio Chitay Nech was directly related to his political activities, the context in which he lived in Guatemala, and the great persecution suffered by members of various Mayan communities, the Court analyzed some questions related to political rights and the principles of equality and non-discrimination.
Respect for political rights is essential for the strengthening of democracy. On the one hand, there is the right that individuals have to participate in current political decisions. On the other hand, individuals have the right to choose their representatives. The Court also added that the effective exercise of political rights is a fundamental tool for guaranteeing those human rights recognized by the American Convention.
With respect to this particular case the Court did not doubt that the disappearance of Florencio Chitay Nech occurred in a generalized context of harassment against those who were considered opposed to the regime, particularly the Mayans, with the aim of weakening social and political leaders. For his work as councilman and later as mayor, Mr. Chitay Nech received multiple threats that eventually forced him to move with his family to Guatemala City, where he was detained with no news of his whereabouts even to the present day. Consequently, the Court sustained that Mr. Chitay Nech was not only prevented from performing his duties and later continuing with his political vocation, but that the community also suffered the loss of one of its representatives. Thus, the victim’s disappearance obstructed the political participation of the indigenous community, creating a situation of inequality inconsistent with a representative and plural democracy. Along these lines the Court reiterated that the State has the obligation to guarantee that indigenous people participate in state institutions and in decision-making that affects the rights of its members. Obstructing direct and proportional participation in accordance with the indigenous uses and customs negatively influences the development of the community. The Court found this situation particularly serious, as indigenous communities constitute the majority of the Guatemalan population.
Right to freedom of movement and residence
The multiple times that the Chitay Rodríguez family had to change residence, first because of harassment and then because of Mr. Chitay Nech’s disappearance, led the Court to analyze the effects this circumstance had on the rights of the family and children.
As the main targets for persecution, Mayan communities suffered displacement during the internal conflict. Many of their members were victims of forced disappearances and various families had to separate. The Court noted that community life is essential for the indigenous Mayan population, as it includes a social and political system that drives community development.
In the present case, the Chitay Rodríguez family first had to move to Guatemala City, where Mr. Chitay Nech was detained, before returning to San Martín Jilotepeque. However, they were unable to remain there for more than a few years, and since that time none of the family members have been able to return to reside permanently in their community.
The Court held that the right to not be forcibly displaced is understood within the right to freedom of movement and residence. The Court analyzed this right in accordance with the United Nation’s Guiding Principles on Internal Displacement, under which “internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized State border.” The Court also added that forced displacement is a complex situation that implicates the violation of multiple rights and places victims in a vulnerable and defenseless situation. In this case in particular, the Chitay Rodríguez family was prevented from exercising its right to freedom of movement and residence. The Court accordingly sustained that although the State had not created formal obstacles to the exercise of the mentioned right, it still was obligated to take positive measures that would restore the right to the victims. The State has a special duty in particular to protect indigenous community members that maintain a special link with their community, for whom estrangement damages cultural, social, familial and religious relations.
The Court observed that the Chitay Rodríguez family could not return to its community because the State did not fulfill its duty to investigate the forced disappearance of Mr. Chitay Nech, nor did it guarantee the conditions of security for his return. In this sense, the Court indicated that the State should take measures to make good the return of or the voluntary resettlement of the victims, with their active participation and consent.
Rights of the child and right to the protection of family
With regard to the rights of the child and the right to the protection of family, the Court analyzed various aspects of the case. First, the Court found it had no jurisdiction over the case of Estermerio Chitay Rodríguez, five years old at the time of his father’s disappearance, given that Guatemala only accepted the Court’s jurisdiction in 1987 and the disappearance occurred in 1981.
Next, the Court observed the effects of the forced disappearance of Mr. Chitay Nech on the Chitay Rodríguez family structure. Here the Court found jurisdiction, as the family remained dispersed even after the events in question. The Court declared that the forced disappearance of people has the objective of damaging the victim just as much as his family and his community.
Considering that the Chitay Rodríguez family had to separate, the Court highlighted the importance of the familial union and the duty of the State to fortify this union. The Court also added that in certain contexts the separation of children from their families constitutes a violation of the right to family. For the Court, the cohabitation of parents and children is a key element of the familial union. Therefore, the State is obligated not only to respect familial life, but also to take positive measures to ensure its protection. The Court also noted that the familial link and the context of community for indigenous families are particularly significant in that cultural practices are passed down through each generation. In this particular case, not only were the children of the Chitay Rodríguez family deprived of the presence of their father, but they also did not have the opportunity to remain in their community and learn about Mayan culture. The Court pointed out that as the Convention on the Rights of the Child adds specificity to the protection of rights of children established in the American Convention, it is important to take into account State obligations to advance and protect the right that indigenous children have to live a life in accordance with the customs of their community and family. Moreover, the obligation to guarantee the cultural diversity of the indigenous towns in turn entails the special obligation to guarantee the cultural life of the children of those communities. To have deprived the Chitay Rodríguez children of their cultural and natural environment meant they could not practice the cultural life of their community.
Right to judicial protection and the guarantees of due process
The case of Florencio Chitay Nech, like all the cases of human rights violations during the internal conflict in Guatemala, occurred within a context of generalized impunity. The victims and their families did not have access to justice and were forced to endure intimidation and harassment meant to discourage complaints. The indigenous community was the group most afflicted by state violence, as well as the group that encountered the most difficulties in accessing justice.
In the case of Mr. Chitay Nech’s disappearance, the family presented a complaint on the day he disappeared, which does not appear in the formal records but which the Court considers as proven. In addition, the political party to which he belonged denounced the event in a press conference that took place a few days after his disappearance. Despite these two complaints, the State did not carry out an appropriate investigation of the events.
Years later, one of Florencio Chitay Nech’s children presented a writ of habeas corpus as a response to receiving no information on the whereabouts of his father. The Court pointed out that while such a writ is an effective remedy for this type of crime, the obligation of the State to provide it does not end with its formal embodiment in a law, but the State must also ensure its effectiveness in practice.
Finally, a year before the resolution of the case by the Inter-American Court, a Guatemalan organization also presented a complaint in relation to Mr. Chitay Nech’s forced disappearance before the Public Ministry. However, the investigations are still in their initial stage.
Accordingly, the Court sustained that when confronting human rights violations, the State has the obligation to carry out a serious and effective investigation to assure the victims’ right of access to justice, independent of the urgings of the victim or his family. Also, the Court pointed out that the prohibition of the forced disappearance of persons is already a part of international law, as is the subsequent obligation to investigate such disappearances seriously, impartially, and effectively within a reasonable period of time. An excessive delay in the investigation can constitute a right violation in itself, because much of the proof and testimonies of witnesses may be lost. This situation hinders the determination of criminal liability.
3. The reparations ordered by the Court
The Court ordered Guatemala to conduct a serious and efficient investigation within a reasonable period of time in order to identify, try, and sanction those responsible for the forced disappearance of Florencio Chitay Nech. When possible, the State should provide the whereabouts of the victim or his remains.
The State should publish the Court’s ruling in an official daily newspaper and in another periodical of national circulation, as well as make it available via radio broadcast four times in both Spanish and Kakchiquel Maya. The relevant parts of the sentence should also be published on a State website.
High state officials, in the presence of the family of the victim, should publicly recognize their responsibility for the forced disappearance of Florencio Chitay Nech. This act must be done in Spanish as well as in Mayan Kaqchikel.
Furthermore, the Court ordered the State to place a commemorative plaque of Florencio Chitay Nech in San Martín Jilotepeque.
Finally, the State must offer free medical and psychological attention to the victims and compensate them for the material and immaterial harms they have suffered, and reimburse their incurred expenses.