International Justice Monitor

A project of the Open Society Justice Initiative

Has Guatemala Satisfied the Inter-American Court’s Judgment in the Molina Theissen Case?

During the July 25 hearing in the Molina Theissen case, the Prosecutor General’s Office (PGN) requested that the Court admit as evidence the 2004 judgment of the Inter-American Court of Human Rights, as well as the Court’s resolution on the supervision of the judgment. According to the PGN, which represents the interests of the state of Guatemala and is a separate institution from the Attorney General’s Office, the Court’s resolution establishes that Guatemala has fully complied with the terms of the 2004 judgment.

IJ Monitor discussed this with Marcela Martino, a lawyer for the Center for Justice and International Law (CEJIL), which has represented the Molina Theissen family before the Inter-American Court of Human Rights. According to Martino, “It is absolutely false to suggest that the state of Guatemala has satisfied all the reparations ordered by the Inter-American Court.”

The Inter-American Court Judgment and Reparations Order

The Inter-American Court has issued two resolutions on the supervision of the 2004 judgment in the Molina Theissen case, one in 2009 and another in 2015. The latter resolution was issued as part of the Court’s combined supervision of 12 sentences against Guatemala.

In its 2004 ruling, the Inter-American Court ordered Guatemala to satisfy the following reparations in the Molina Theissen case:

  1. Locate and return the mortal remains of Marco Antonio Molina Theissen to his family.
  2. Investigate effectively the facts of the case in order to identify, prosecute, and punish the perpetrators of the forced disappearance of Marco Antonio Molina Theissen, and publicly disclose the outcome of this process.
  3. Publish at least once and within a period of three months the Inter-American Court’s (2004) judgment in the Official Gazette and in another newspaper of national circulation.
  4. Convene a public act of recognition of the State of Guatemala’s international responsibility in the case and as means of reparation to Marco Antonio Molina Theissen and his next of kin.
  5. Designate an existing educational center in Guatemala City with a name that alludes to the missing children during the internal armed conflict, and place a plaque in memory of Marco Antonio Molina Theissen in that center.
  6. Create an expedited procedure to obtain the declaration of absence and presumption of death by enforced disappearance.
  7. Adopt such legislative, administrative, and other measures as may be necessary to establish a national genetic information system to facilitate the search for the estimated 4,000 children disappeared during the Guatemalan armed conflict.
  8. Provide compensation for material and intangible damages as well as costs and expenses to the family.

“Each of these reparations measures on their own is important,” says Martino. “But the idea is that all of the measures combined fulfill the demands to provide redress to the Molina Theissen family for the violations they endured.”

In its most recent resolution, the Inter-American Court determined that Guatemala has complied with only some of these orders. Guatemala has paid monetary reparations to the family (point 8). It published the 2004 Inter-American Court judgment (point 3). In 2006, Guatemala, represented by then Vice President Eduardo Stein, convened a public act of recognition of the state’s responsibility in the Molina Theissen case and apologized to the family (point 4). It also named a school after Marco Antonio Molina Theissen, where there is a plaque in his memory (point 5).

However, contrary to the PGN’s assertions, the Inter-American Court determined that Guatemala has failed to satisfy other key measures that are of fundamental importance to the family: most importantly, the identification and return of the remains of Marco Antonio to the family (point 1) and the criminal prosecution and punishment of the perpetrators (point 2). The arrests in January 2016, and the March 2017 decision to send the five defendants to trial, were the first evidence of progress on the latter point, notes Martino, but she also points out that this has come 35 years after the crimes. There have also been significant delays in the proceedings, as IJ Monitor has documented.

Moreover, says Martino, Guatemala has failed to satisfy those measures designed to address structural issues that could help prevent such atrocities from occurring in the future, including the creation of a mechanism for families of victims of enforced disappearance to obtain a declaration of absence and presumption of death by enforced disappearance (point 6), and the establishment of a national genetic information system (point 7). Says Martino: “With the exception of the criminal proceedings that began last year, the state has not taken any steps to comply with these other measures. The state not only has failed to satisfy these measures, but there is no sign that the state has any intention of doing so.”

Notably, victims’ groups have sought passage of legislation that would establish a National Commission to Search for Victims of Enforced Disappearance and other forms of Disappearance (Law 35-90). This was a recommendation by both the Commission for Historical Clarification and the Interdiocesan Project on the Recuperation of Historical Memory (REHMI).

For years, the state has pointed to the existence of this bill as evidence of its fulfillment of the requirement to identify and return the remains of Marco Antonio, without mentioning that since the bill’s introduction in 2006, Congress has never passed it. The only real efforts to search for the missing have been undertaken by the Forensic Anthropology Foundation of Guatemala (FAFG), a non-governmental organization that searches for and seeks to identify victims of enforced disappearance.

In the Molina Theissen case, there are no indications that Guatemala has taken specific actions to locate the whereabouts of Marco Antonio, as ordered by the Court.

This is the second of two articles on the Molina Theissen case; the first examined the final preliminary hearings before the case goes to court.

Jo-Marie Burt is an Associate Professor of Political Science and Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.

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