Report No. 88 (2012) IACHR. Petition No. 751-06 (Guatemala)

• Petition Number: 751-06
• Report Number: 88
• Year: 2012
• Court: Inter-American Comission of Human Rights
• Case Type: Admissibility
• Alleged Victim: Anette Bettina Herrera Osorio viuda de Aranky y otros
• Respondent State: Guatemala

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REPORT No. 88/12 PETITION 751-06 ADMISSIBILITY ANETTE BETTINA HERRERA OSORIO VIUDA DE [WIDOW OF] ARANKY ET AL. GUATEMALA November 8, 2012 I. SUMMARY

1. On July 21, 2006, the Inter-American Commission on Human Rights (hereinafter “Commission,” “Inter-American Commission,” or “IACHR”) received a petition presented by Anette Bettina Herrera Osorio viuda de [widow of] Aranky, José Luis Arenas Woolrich, and Jorge Alejandro Zamora Barasé (hereinafter “petitioners”) on behalf of Anette Bettina Herrera Osorio viuda de Aranky and her children, Mariam Fadua, Suhad Faride, Farah Bettina, Yusef Habib , and Melanie Fawcia, all surnamed Aranky Herrera (hereinafter “alleged victims”). The petition was filed against the State of Guatemala (hereinafter “State,” “Guatemalan State,” or “Guatemala”) for breach its duty to deliver justice within a reasonable time in two legal cases, a criminal case and a civil case, arising from a February 15, 1992 traffic accident resulting in the death of Issa Roberto Aranky Ortiz and the injury of the alleged victims.

2. The petitioners assert that the State has violated the rights protected under Article XXIV of the American Declaration of the Rights and Duties of Man and Article 8 (fair trial) of the American Convention on Human Rights.

3. The State does not contest the petition’s admissibility with respect to an alleged violation of Article 8 of the American Convention on Human Rights in the criminal case. However, it contests the petition’s admissibility with respect to the civil proceedings, on the grounds that the domestic remedies have not been exhausted.

4. Without prejudice to the merits of the case, after analyzing the parties’ positions and determining compliance with the requirements of Articles 46 and 47 of the American Convention on Human Rights (hereinafter “Convention” or “American Convention”), the Commission decides to declare the case admissible for the purpose of examining the alleged violation of the rights under Articles 8(1) and 25 of the American Convention of Anette Bettina Herrera Osorio viuda de Aranky and her children, Mariam Fadua, Suhad Faride, Farah Bettina, Yusef Habib, and Melanie Fawcia all surnamed Aranky Herrera, pursuant to Article 1(1) of that instrument. The Commission further decides to notify the parties of this decision, to publish it, and to include it in its Annual Report to the OAS General Assembly.

2. PROCESSING BY THE COMMISSION

5. On July 21, 2006, the Commission received the petition and assigned it number 751-06. On December 20, 2006, it forwarded the relevant portions of the petition to the State of Guatemala, setting a two-month deadline for reply in accordance with Article 30(2) of the IACHR Rules of Procedure then in effect. The State’s reply was received on February 23, 2007 and duly forwarded to the petitioners.

6. The IACHR received information from the petitioners on March 21, 2007, July 18, 2007, October 23, 2007, February 20, 2008, May 16, 2008, August 16, 2008, August 24, 2009, and January 13, 2012. These communications were duly forwarded to the State.

7. The IACHR received information from the State on June 5, 2007, August 24, 2007, January 10, 2008, March 28, 2008, July 1, 2008, September 26, 2008, and January 25, 2010. These communications were duly forwarded to the petitioners.

III. POSITIONS OF THE PARTIES

A. The petitioners

8. The petitioners claim that, through its judiciary and competent bodies, the State of Guatemala has breached its obligation to provide justice within a reasonable time in two judicial proceedings arising from the February 15, 1992 traffic accident: (1) in criminal proceedings against Antonio Velaco Mendizábal for the offenses of homicide and wrongful injury and against Emiliano Merino López for the offense of ordinary accessory after the fact (encubrimiento propio) and (2) in ordinary civil proceedings against Emiliano Merino López for damages.

9. The petitioners indicate that on February 15, 1992, at approximately 6:45 p.m., in Escuintla Department, at the 36-kilometer mark of the Pacific Road, the alleged victims were riding in a car with Issa Roberto Aranky Ortiz, the husband of Anette Bettina Herrera and father of the then-minor alleged victims, and with then-17-year-old family domestic Rosa Marina Lorenzo Gómez. Mr. Aranky was driving north on the highway when Antonio Velasco Mendizábal, driving a Flor de Mayo company extraurban bus owned by Emiliano Merino López, collided head on with the vehicle in which they were riding. Mr. Aranky and Rosa Marina Lorenzo Gómez died in the accident, and the alleged victims suffered multiple, serious injuries requiring hospitalization, surgery, and treatment for trauma.

• Criminal case

10. As a consequence of the accident, a complaint, criminal case number 829-92, was filed with the Escuintla Department Second Criminal Court of First Instance against Antonio Velasco Mendizábal, for the offenses of homicide and wrongful injury, and Emiliano Merino López, for the offense of ordinary accessory after the fact. The case was later transferred to the Escuintla Second Criminal Court of First Instance as case number 421-92. Mrs. Herrera viuda de Aranky initiated criminal proceedings on her own behalf, as an injured party, and on that of her children, reserving the civil action, which she filed separately with the competent court. However, the petitioners report that the Court itself lost the criminal case file in 1993.

11. The petitioners indicate that Mr. Velasco fled the scene of the accident. The authorities never located him or enforced an August 3, 1992 warrant for his arrest. Mr. Merino López was indicted as an accessory after the fact and released on recognizance. They indicate that the State did not follow through on the criminal prosecution of either individual, resulting in impunity for crime.

12. In regard to the exhaustion of domestic remedies in the criminal case, they accuse the authorities of unwarranted delay in the administration of justice. They maintain that, in addition to having lost the case file in 1993, the State has never located the accused fugitive and has therefore never enforced the warrant for his arrest, with the result that he has never been prosecuted.

• Ordinary civil action for damages

13. Also as a consequence of the accident, on April 23, 1993, Mrs. Herrera viuda de Aranky brought an action for damages against Emiliano Merino López. Subsequently, through the exercise of ancillary jurisdiction in probate proceedings, the case was transferred to the Guatemala Department Third Civil Court of First Instance and, later, to the Sixth Court of First Instance (Ord. 96-2002).

14. In the course of these proceedings, on August 2, 1995, the Escuintla First Civil Court of First Instance and Financial Enforcement rescinded the preventive attachment order issued against the defendant after the plaintiffs failed to pay a court-imposed security deposit of 60,000 quetzals, which they could not afford because they were financially exhausted by funeral and medical expenses. The petitioners contend that it was unreasonable to require the aforementioned security deposit in order to maintain an attachment order ensuring compliance with a possible compensatory judgment and argue that the Court denied justice by making it impossible to preserve the previously ordered attachment of the defendant’s assets. Moreover, in their view, the fact that they did not contest the amount of the security has no bearing on whether there has been an unwarranted delay in providing justice for the alleged victims.

15. On January 26, 2001, the Third Civil Court of First Instance found against Mr. Merino in the ordinary civil action. On September 25, 2001 the appellate court overturned the lower court’s judgment because it had failed to notify the defendant of a ruling in the case. This defect was cured, and the defendant filed an appeal. When the appeal was dismissed, he filed an action for amparo, which was declared inadmissible.

16. The petitioners indicate that, finally, on January 2, 2008, the Sixth Civil Court of First Instance issued a judgment in the ordinary action for damages. The Court ruled in favor of the plaintiffs and assigned Emiliano Merino López joint and several liability for damages arising from the deaths of Issa Roberto Aranky Ortiz and Rosa María López Gómez as well as for...