The Case of Kairat Bektenov and others
Closed Expands Expression
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The Inter-American Court of Human Rights held that the forced disappearances of 26 individuals that occurred from 1983-1985 during a period of internal armed conflict in Guatemala violated the constitutional rights to life, personal integrity, personal liberty, and juridical personality of the victims.
Further, the Court reasoned that the State’s actions and subsequent failure to conduct a prompt, effective investigation into the forced disappearances also violated the right to truth and freedom of association of the victims’ family as well as the public at large.
This case analysis was contributed by Right2Info.org.
From 1962 to 1996 internal armed conflict in Guatemala resulted in an estimated 200,000 killings or forced disappearances. During the conflict, the two national military intelligence agencies gathered information on individuals deemed to be “internal enemies,” which grew to include anyone who was “not in favor of the established regime”.
In May 1999, the National Security Archive, an NGO based in the U.S., released a “confidential Guatemalan State intelligence document known as the ‘Diario Militar,’” or the “Death Squad Dossier” that it had obtained from an employee of the Guatemalan Army. The 73-page document included information on the structure of intelligence archives, lists of human rights organizations, and a list of 183 people along with their names, photos, alleged affiliations, and the facts of their executions (para. 60). The “final whereabouts of most of the people recorded in the document and/or their remains are unknown”. In 2005, 253 files “directly related to the crimes recorded in the Diario Militar” were found by accident in the former offices of the National Police. In March 2009, the President created the Commission for Declassification of the Military Archives to “systemize the documentation on military matters relating to national security over the period from 1954 to 1996”. However, of the many documents declassified by the Commission, only six came from the period of 1980 to 1986.
The Petitioners, the families of 26 victims of enforced disappearances listed in the Diario Militar, as well as the family of a victim who was abducted and tortured as a child, brought a case before the Court after the failure of the State to investigate, prosecute or release information about the victims of the disappearances. The Inter-American Commission on Human Rights (IACHR) submitted the case before the Court ““owing to the need to obtain justice for the [presumed] victims and because of the State’s failure to provide detailed and substantial information on compliance with the recommendations”.
The case presented three major issues: (1) the forced disappearances of the 26 victims, the motive for these disappearances, and the rights of the child in relation to two individuals under the age of 18 on the Diario Militar list; (2) the obligation to investigate these disappearances, deaths, and detentions; and (3) the alleged violations of the right to personal integrity, movement and residence, protection of the family, rights of the child, and freedom of association of the family members of the victims.
It was undisputed by the parties that the State was responsible for the forced disappearance of the 26 victims. Such forced disappearances violate the American Convention on Human Rights on numerous counts: the rights to recognition of juridical personality under Article 3, to life under Article 4, to personal integrity under Article 5, to personal liberty under Article 7, and the rights of the child under Article 19 with respect to two victims. The Court also found that the disappearances restricted the exercise of social groups’ freedom of association in violation of Article 16(1), as they were intended to threaten and instill fear. The Court found that the disappearances were not isolated incidents but rather “part of a systematic state plan of forced disappearances against members of the civilian population whom it considered ‘internal enemies’”.
The Petitioners alleged violations of Articles 8 (right to fair trial) and 25 (right to judicial protection). Guatemala accepted responsibility for these violations. Given that the state had been aware of the disappearances of at least 17 of the disappeared victims, it had an obligation to open and investigate their whereabouts (para. 239). Where the State had “reasonable grounds to suspect that an individual has been subjected to forced disappearance,” the State had an obligation to investigate the case ex officio, regardless of whether complaints had been filed. However, Guatemala did not open an investigation until family members had filed complaints.
Once the State did open an investigation, it was under an obligation to carry it out with due diligence and ensure that the investigation included “all necessary measures to determine the fate or destiny of the victim and to discover his or her whereabouts”. Guatemala violated this obligation on several counts. First, the investigation focused primarily on requests for information on the victims but fell short of “prov[ing] the facts with reliable evidence, […] identify[ing] those responsible and, eventually, […] punish[ing] them”. Additionally, there was an unjustifiable delay in unifying the investigation, and an unjustifiably prolonged delay in initiating the investigation itself. Other state authorities, namely the Ministry of Defense, failed to collaborate with the investigation resulting in the failure to obtain critical information.
The Petitioners also claimed that Guatemala, by refusing to provide information and in some cases even concealing information in the course of the investigation, violated the right of access to information established by Articles 13 and 23 combined of the Convention. The Court failed to find a violation of Article 13 independent of the Article 8, 25 and 5 violations. The Court distinguished the case from Claude Reyes v. Chile and Gomes Lund v. Brazil on the grounds that the Petitioners did not make a “specific request for information … to state authorities.” The Court rejected the proposal by the IACHR and the Petitioners to find a violation of the rights of the victims resulting from the denials of information by the Ministry of Defense to extrajudicial and judicial authorities. The Court did however consider the refusal to collaborate by the Ministry of Defense as an “obstacle to the elucidation of the facts,” and found this to be a violation of Articles 8.1, 25.1 and 5. It said these actions constituted a violation of the right to know the truth, established by Articles 8, 13, and 25 combined of the Convention.
Rights of the family members
The alleged violations occurred with respect to the right to personal integrity; the right to know the truth; the right to freedom of movement and residence; protection of the family and rights of the child; and the right to freedom of association and expression. The Court concluded that the State’s refusal to conduct an effective investigation subjected the family members to harassment and threats, thus violating their personal integrity. Given the gross violations of human rights that had occurred, the State’s refusal to investigate also violated the family members’ right to know the truth. In particular, the Court identified the State’s failure to collaborate with the Truth Commission as the source of the violation.
Moreover, the Court said, the State violated its obligation to “provide [family members] the necessary conditions to facilitate a safe, decent and voluntary return to their usual place of residence” with respect to the family of one victim. In several instances, the victims had been members of a group called Grupo de Apoyo Mututo (GAM), such that their forced disappearances at the hands of the State had an immediate intimidating and threatening effect on the right to association for the family members.
However, the Court found no violation of the rights of the child and family, as it concluded that the arguments put forward had already been presented with respect to the alleged violation of personal integrity (para. 311). Moreover, despite the “intrinsically related” nature of the freedoms of expression and association and an inherent freedom of expression element of freedom of association, the Court concluded there was “insufficient evidence” to indicate an “autonomous violation of the right to freedom of expression” that was wholly separate from the violation of freedom of association.
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