Retroactive compliance? An inter-American blunder in the Case of Maldonado Ordóñez vs. Guatemala

By Paola Limón HLRIC-logo-212x209

Between 1960 and 1996, Guatemala suffered a violent internal armed conflict. During this time, it also managed to become a full member of the Inter-American Human Rights System: signing the American Convention on Human Rights (ACHR) in November 1969, ratifying it in April 1978 and accepting the jurisdiction of the Inter-American Court of Human Rights (IACtHR) in May 1978.

Since 1996, the IACtHR has decided 25 cases against Guatemala; making it the country with the second highest number of contentious cases decided by the IACtHR (Peru is first, with 42 cases since 1995). Of these 25 cases, Guatemala has only fully complied with one. In this regard, on 21 September 2017, the IACtHR notified its monitoring compliance resolution of 30 August 2017, declaring that Guatemala had fully complied with its judgment of 3 May 2016 in the Case of Maldonado Ordóñez.

Although this might seem like an inconsequential matter at first glance, it is unprecedented that Guatemala fully complied with an IACtHR judgment; even more so, considering that it happened in approximately 14 months. But a closer look into the merits proceedings and reparations orders in this case, reveals that full implementation of this judgment was only possible, in time and substance, due to an error attributable –not exclusively– to the IACtHR. This post, product of the ESRC Human Rights Law Implementation Project –HRLIP– (see endnote), seeks to explore those aspects of the IACtHR’s proceedings and orders in this case, which facilitated implementation of the judgment.

Facts of the case

Olga Yolanda Maldonado Ordóñez worked at the Guatemalan Human Rights Ombudsperson (PDH) since 1992. In 2000, her siblings filed a claim against her at the PDH arguing the alleged falsification of a public deed and requesting a “moral sanction”. This led to administrative proceedings which concluded with her dismissal. Her appeal before the PDH was denied and subsequent judicial remedies attempted were declared inadmissible; all, in the midst of a confusing normative framework.

The IACtHR’s judgment

On 23 June 2016, the IACtHR notified its judgment of 3 May 2016 on the Preliminary Objection, Merits, Reparations and Costs of this case. It found the State responsible for several violations to due process and the principle of legality (Arts. 8 and 9 ACHR). It also found that Guatemala violated the right to judicial protection and its duty to ensure domestic legal effects of the rights and freedoms referred to in the ACHR (Arts. 25 and 2, in relation to 1.1 ACHR), given that the ineffectiveness of the domestic remedies filed by the victim was due to the existing contradictory normative framework. Consequently, the IACtHR ordered the State of Guatemala to:

judgment b

Taking a step back: the merits stage

A first issue worth highlighting relates to the merits stage of the case (also related to the compliance stage further below). In this case, the IACtHR decided not to convene a hearing on the preliminary objection, merits, reparations and costs (Considering para. 27). Thus, its judgment was the result of purely written proceedings. While this is not the first case without a merits hearing, it remains an infrequent situation. The IACtHR is generally of the view that “the principle of immediacy is fundamental for the satisfactory development of proceedings, as well as an essential part of the right of access to inter-American justice” (p. 50). However, it has also considered that Articles 15 and 45 of its Rules of Procedure grant it the power to decide if and when to hold hearings.

In the instant case, the IACtHR stated that the elements to consider when deciding whether or not to convene a hearing include the characteristics of the case, the procedural requirements derived from said characteristics, as well as due preservation of the parties’ rights; it further expressed that this power is to be exercised in a motivated manner. Despite this express listing of elements, the IACtHR merely referred that “the plenary of the [IACtHR] has evaluated the main briefs presented by the [Inter-American] Commission and the parties and has decided that it is not necessary to convene a public hearing” (Considering para. 27). However, the IACtHR failed to expressly link said elements to the case in question, by stating the reasons why it deemed that the characteristics of this case did not require a hearing and why the parties’ rights were preserved without it. Thus, while its evaluation might have been reasoned in its private deliberations and its conclusion might have been justifiable, the resolution itself did not reflect their motivation.

Analyzing compliance

It is worth reminding that Guatemala fully complied with the Case of Maldonado Ordóñez in approximately 14 months. Not only is this an unprecedented occurrence regarding Guatemala, but it is also still an exceptional situation in the region; with very few cases having been fully complied in less than two years.

In this regard, the IACtHR acknowledges that “[b]oth the number of reparations ordered, and also their nature and complexity have an impact on the time a case may remain at the stage of monitoring compliance” (p. 65). But there are other factors that influence the speed at which a State complies (if it complies); such as, the nature of the facts in question (including who the perpetrators are and what power they may continue to have within the country), the existence of domestic laws and mechanisms to facilitate implementation, the government’s political will, and the capacity of authorities to implement specific decisions. Some of the factors that influenced compliance in the Case of Maldonado Ordóñez are further analyzed below.

Number of orders. The IACtHR is well-known for granting numerous and wide-ranging reparations in each judgment (p. 65). However, in this case, it only ordered four reparation measures; rejecting two additional reparation requests by the victim’s representatives, considering that those already ordered were “sufficient and adequate to remedy the violations suffered” (paras. 134-136).

Nature of the facts. Quite obviously, this case is unrelated to the internal armed conflict. Thus, its implementation does not generate resistance among a society that, more than 20 years after the Peace Accords, continues to be polarized, continues to suffer from the structural inequality and discrimination that led to the internal armed conflict, and has and continues to be governed by elites with strong military ties and corrupt economic interests (Carasik, Foreign Policy). Furthermore, the case relates to a single victim and an isolated event; thus, not rooted in a context of systematic violations more difficult to eradicate.

Nature of the reparations, the actors involved, and their will and capacity to implement. It should be noted that the first three orders listed above fall under the exclusive competence of the Executive Branch. By only requiring action on the part of one State power, inter-institutional coordination to implement specific measures is, in principle, easier. Furthermore, the facts originated in the PDH, Guatemala’s National Human Rights Institution (NHRI), with “A” status accreditation by the Global Alliance of NHRIs since May 2013 (p. 5). As such, the PDH would be expected to act in accordance with the Paris Principles, and effectively implement those reparations falling directly within its competence; as it, in fact, occurred (Considering paras. 5, 11-17). As to the payment of compensation, this has rarely been difficult to comply, even for Guatemala (CEJIL, pp. 71-72). Finally, by not engaging the Judicial Branch, in relation to the State’s duty to investigate, prosecute, and punish those responsible for the violations –as most cases against Guatemala do–, it substantially reduces the time that the case would remain open for monitoring. In this sense, it is worth noting that the Case of Blake –the IACtHR’s first reparations judgment against Guatemala– remains open since 1999, but only in relation to this obligation (Considering paras. 46-52 and Op. para. 1). Indeed, few cases show significant advances in this regard.

Complexity of the reparations. The only structural measure ordered –which could have taken longer to implement given its probable complexity and the potential involvement of the Legislative Branch–, perhaps should not have been ordered at all. In this regard, in its compliance report of March 2017, Guatemala referred that the PDH’s Human Resources Regulations that entered into force on 17 December 2013 (which state that a person affected by a negative appeal may go before the corresponding labor courts), replaced the 1991 Staff Rules in force at the time of the facts. While the victim’s representatives argued that the lack of clarity subsisted, the IACtHR –after requesting clarification from the State– deemed that the 2013 reform indeed resolved the controversy that led to the finding of the violations and, thus, declared full compliance with this measure (Considering paras. 19-29).

What is a little worrying about this is that in its 2016 judgment, the IACtHR ordered a “reparation” which was ultimately deemed complied with based on a 2013 reform; that is, a year before the case was even submitted to its jurisdiction and approximately seven months prior to the adoption of the merits report by the Inter-American Commission on Human Rights (IACHR). This can only be described as an unfortunate mistake resulting from a combination of factors. As the facts of the case evidence, the victim was uncertain about the applicable domestic remedies (paras. 25, 117-120). It appears as if her representatives were unaware of the 2013 reforms (not mentioned throughout the IACHR’s merits report or the IACtHR’s judgment); or, if they did know, it is unclear whether they argued that the lack of clarity persisted (para. 130), as they effectively did during the monitoring compliance stage (Considering paras. 20-22). But it is the State that bears the ultimate responsibility, for not presenting its normative framework clearly throughout the proceedings (paras. 14-25).

Despite this, the IACHR and IACtHR bear some responsibility as well; while it is not for them to identify the adequate domestic remedies ex officio (mutatis mutandis, para. 22), it is true that, notably, the IACtHR could have avoided the situation by requesting additional evidence and clarification from the State (Article 58.b, Rules of Procedure). Also, but this question will remain unanswered: could this have been clarified in the context of a merits hearing, had the IACtHR decided to convene one in the first place?

Faced with a situation like this one, the IACtHR could have taken a stronger stance regarding the information that States should provide it with at the appropriate procedural moments, particularly, considering that this might me determinant to finding violations or ordering reparations. In this case, it could have, at least, noted Guatemala’s wholly extemporaneous presentation of the applicable normative framework. Instead, it rewarded Guatemala with public recognition.


As evidenced by this and other cases, there are a range of factors which influence domestic implementation of international decisions. However, ideally, the (in)adequacy of the orders should not be one of those factors.

For this, international human rights bodies should undertake merits proceedings in a rigorous manner and take advantage of their extensive evidence-gathering attributions and possibilities, such as hearings, information requests to the parties, information from reliable sources that is publically available online, in situ visits (when possible and necessary), etc. This would help ensure that their recommendations and orders are well crafted, thoroughly based on fact and law, as well as pertinent, in order for them to be implemented in a way that generates an adequate and effective impact at the domestic level.


Note: While the Case of Maldonado Ordóñez v. Guatemala was not one of the cases studied under the HRLIP (because it was decided after the HRLIP had selected its focus countries and cases), we conducted our country and case-specific research within the broader context of implementation (including other cases from the selected countries, as well as other countries in each of the regions). Thus, this post is informed by the HRLIP’s broader research activities.


Disclaimer: The views expressed herein are the author(s) alone.


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