In recent years, the Commission has had the opportunity, through its annual reports to the General Assembly, to describe developments in El Salvador in human rights observance, with particular emphasis on the difficulties that have occurred in human rights enforcement. In its last annual report, the Commission described the change that had occurred in the relationship between the Salvadoran Government and the IACHR, which was reflected in greater cooperation by the authorities of El Salvador with the Commission’s work, in re-establishing the supply of information and replies to communications that the Government had failed to remit to the IACHR, and in the invitation extended for a special IACHR Commission to visit the country in order to make an on-site investigation of several claims of alleged human rights violations, of the right to liberty and humane treatment and of the guarantees of due process, committed against a substantial number of political prisoners. The report also noted that important progress had been made in human rights in the Republic of El Salvador during the period of the Report.


          The progress mentioned by the Commission in the previous paragraph included the considerable decline in the disappearance of persons and also in the activities of the death squads; the reduction of indiscriminate bombing of the civilian population not directly involved in the fight; the return to El Salvador of a substantial number of persons displaced outside its territory; the almost complete pacification of the capital city of San Salvador; effective observance by the Government and the security forces of their commitments with the International Red Cross Committee to report immediately on the arrest of persons to the office of that Committee in El Salvador, to the Archdiocese Legal Aid Office (Tutela Legal) and the Government Human Rights Commission; compliance with the agreement to allow such humanitarian and human rights institutions to supervise the treatment by security forces of persons held incommunicado, who are then subject to Decree Law 50 that permits regular visits by the representatives of such organizations to incommunicado prisoners starting with the eighth day of their detention in order to verify their whereabouts, report to their families on their detention, determine whether they have been mistreated or tortured, and report directly to the authorities on such findings.


          The progress described in the previous report has for the most part been partially maintained during the period covered by this report, although in other respects violations and restrictions have been found, in some cases severe, of human rights guaranteed by the American Convention, of which El Salvador is a party.


          During the period covered by this report, an event of significant importance is that beginning January 12, 1987, the state of emergency that had been maintained year after year was lifted throughout the Republic, thereby re-establishing the constitutional guarantees that had been suspended for seven and a half years. Also lifted, first because of the end of the state of emergency, and then because it was repealed, was the much criticized Decree 50, although, as will be noted, the legislation replacing it suffers from similar defects.


          As a result of re-establishment of the constitutional order, Decree Law 50 or the Law on Criminal Procedures Applicable to the Suspension of Constitutional Guarantees, was automatically revoked, except for cases already being tried by military courts, regarding which, under Article 40 of that law, “when constitutional guarantees have been re-established, cases pending before military courts will continue to be tried by them in accordance with this law.” Moreover, Decree Law 50, in addition to being without effect after the re-establishment of the constitutional guarantees on January 13, 1987, was definitively annulled on February 22, under Article 43, which set February 28, 1985 as the end of its period of effectiveness, but this was later extended for two more years, ending finally, as stated, on February 22, 1987.


          In order to overcome the severe deficiencies of Decree Law 50, and taking into consideration the suggestions and recommendations that had been made by various human rights organizations, including the Inter-American Commission on Human Rights, the Commission to Review Salvadoran Legislation, an organization established by the present government, drafted a new bill submitted to President Duarte for consideration and for submission to the General Assembly for approval. Surprisingly, the Legislative Assembly, instead of enacting the bill proposed by that Commission, enacted on March 11 of this year Decree Law 618, known like the previous one as the “Law on Criminal Procedures Applicable to Suspension of Constitutional Guarantees,” a decree law that, instead of amending Decree Law 50, is virtually identical to it.


          The IACHR deplores the enactment of a new emergency procedural law, which, like the previous one, violates elementary legal principles and guarantees as well as international human rights rules that are binding on the Republic of El Salvador. However, the Commission must state that despite the implications of this decree law as an element of intimidation and latent threat, it has not been enforced so far, so that the constitutional guarantees have not been suspended after being restored throughout the country on January 13 of this year. The Commission also deeply regrets that when the deadline for this decree law expired on September 10, it was extended to December 31, 1987.


          We should also mention the confusion caused by the fact that from February 22, 1987 when Decree Law 50 finally was annulled to March 11 when Decree Law 618 was enacted, there was a gap of several days in which the military courts did not know whether to continue to hear the cases they were trying under Decree Law 50 or whether they should remit such cases to the Civil Courts responsible for trying criminal cases under the Code of Criminal Procedures.


          In addition, there was confusion about the fact that when Decree Law 618 was enacted and entered into effect, but was not enforced because it only applies to cases of suspension of guarantees, some military judges who had been trying cases under Article 40 of Decree Law 50 resumed hearing those cases under Article 40 of the new Decree Law 618, which also provides that, with the re-establishment of the constitutional guarantees, proceedings that had been left pending before the military courts would continue to be tried by them under this latter law. The situation described has given rise to criticism because Decree Law 618 would be made retroactive to try alleged offenses that occurred before it was in effect. The Commission has been informed that an appeal has been made to the Supreme Court on this issue, which is still pending decision.


          The Commission regrets to note that, during the period of this report, the following events seriously affected the observance of human rights in the Republic of El Salvador:


          Regarding the right to life, information from reliable sources indicates that, while the number of persons affected by the state of violence and warfare that still prevails in El Salvador has declined from previous years, nonetheless, persons have continued to be seriously affected, as shown by the following statistics: arrested by government armed forces and later disappeared: 65 persons; disappeared, without it being known who detained them: 40 persons; murdered by death squads: 18 persons; murders attributed to the armed forces: 80 persons; deaths from mines and explosives, without the authorities being able to determine the facts of these cases: 24 persons. The number of persons injured or wounded is substantial, but exact figures on them is impossible to obtain.


          The Commission has not received serious complaints about indiscriminate bombing of noncombatant civilians, including persons accompanying or living with guerilla forces and giving them aid, despite the fact that there have been 27 operations of this kind, which shows that at least in this respect, the improvement regarding the right to life as recorded in the Commission’s last report has continued. However, the Commission has continued to receive complaints about the explosion of bombs, which have caused casualties not only among armed forced members in action, but also among members of the civilian population, including women and children living in towns near combat areas.


          Regarding the right to personal freedom, the Commission has continued to receive, although in lesser number, complaints about alleged violations of that right and the constitutional guarantee that, as noted, has not been fully re-established. In some cases, as reported, arrests have been made only to interrogate persons, who on the second or third day are released, but also in some cases such persons have been arrested again. This situation has particularly affected members of cooperatives, as indicated below.


          In the area of due process judicial guarantees, the Commission has observed a substantial improvement resulting from re-establishment of constitutional guarantees, the repeal of Decree Law 50 and the nonenforcement of Decree Law 618, mentioned above, because as a result, regular civilian criminal courts have again assumed jurisdiction and competence to try offenses that were previously tried by military courts; the due process guarantees suspended for the state of emergency have been re-established; the procedural rules in the Code of Criminal Procedures have begun to be applied to persons tried for offenses against State security; detainees are no longer held incommunicado up to 15 days, and arrested persons are, according to the law, brought before the courts having jurisdiction, within 72 hours after their arrest, a provision that is complied with in most cases; complaints of mistreatment and torture of political prisoners have declined substantially, and the extrajudicial testimony no longer has value as evidence in political cases, and the rule contained in Article 496 of the Code of Criminal Procedures, which reads as follows, has been re-established:


         In the political offenses referred to in Article 151 of the Criminal Code, extrajudicial confession shall have no value as evidence.


          While there has been considerable progress, as indicated above, with regard to judicial guarantees of detained persons, nonetheless the Commission has continued to receive some complaints about alleged illegal removal of cases to military courts by certain military judges, who, despite what was stated above, have tried to assume jurisdiction over some cases that should be under the exclusive jurisdiction of regular courts. This has occurred precisely because of the fact that certain civilian criminal courts have remitted cases brought before them to other courts as though they lacked jurisdiction to continue to try such cases. This situation has been creating a veritable judicial chaos, because it continues what is referred to as “the spirit” of the emergency laws. Complaints about these cases are reported to be pending decision by the highest court of the Republic, which thus far has provided no effective resolution to the problem.


          Another aspect of the legal confusion prevailing in a number of areas of national life in the Republic of El Salvador, in connection with the right to a fair trial and to due process, is the confusion resulting from the lack of legal guarantees caused by the situation of armed conflict in the country, which results from the fact that, without either legal or constitutional protection but with the acquiescence of representative institutions of the law, the government has had to release on various occasions a number of political prisoners in negotiations with the guerilla forces. When such releases have taken place, the political prisoners set free had criminal proceedings under way against them, were subject to the jurisdiction and competence of judges appointed by the law and their legal status was being determined, or they had not been sentenced. These releases, which were the result of political and military negotiations, opened the doors of the Mariona prison (for men) or the Illopango prison (for women), but they did not result in a law of amnesty or pardon. Therefore, the courts trying such cases did not know for sure where they stood, because they were informed by the newspapers that such and such prisoners were released but with the defendants’ legal status remaining completely undefined: the detainees were free and their trials were suspended, but none of them were legally regularized, which is contrary to all existing legal rules.


          The most important releases in this period included a case on February 3 of this year, in which the Salvadoran Government and the rebel forces reached an agreement to exchange Colonel Omar Napoleón Avalos who had been kidnapped and kept as an alleged prisoner of war, for a considerable number of trade unionists, members of the Nongovernmental Human Rights Commission, and FMLN militants who had been disabled in the war.


          Regarding the activities of nongovernmental human rights organizations, the Commission regrets the harassment by organizations of military personnel against some human rights groups such as the Nongovernmental Human Rights Commission and the recent terrorist attack against the Mother’s Committee (Las Comadres) site, where heavily armed men dressed in civilian clothes, traveling in to station wagons, exploded a bomb on May 3 at 3:00 in the afternoon, causing serious damage to the site and wounding some of the occupants. Later, on September 3, two members of the Mothers Committee, Lucía del Carmen Menjivar Vásquez and Gloria Alicia Galán García, labor unionists belonging to FMLN terrorist groups, were arrested. The first was subsequently released, and the second was tried by the Second Criminal Court for alleged subversive association.


          Regarding the right to humane treatment, the Commission, as reported in its last annual report to the General Assembly, started, in cooperation with the Salvadoran Government, an investigation on the above-mentioned case 9621, dealing with the complaints of some of the political prisoners about alleged cases of mistreatment, torture and lack of judicial guarantees. Accordingly, from August 11-15, 1986, a special committee composed of the then Chairman and Vice Chairman of the IACHR, Drs. Luis Adolfo Siles Salinas and Marco Tulio Bruni Celli, accompanied by Executive Secretariat staff, made an on site visit to El Salvador, and subsequently, a special mission of the Executive Secretariat made a visit from the 15th to the 21st.


          As a result of that investigation, the Special Committee submitted a report to the Commission of the whole, which after hearing the proposal for a friendly solution accepted in principle by the two parties, issued at its 69th session, of March 26, 1987, Resolution 13/87, declaring the complaint to be admissible, and formally placing itself at the service of both parties, the claimants and those against whom complaints were lodged, to reach a friendly solution of the matter based on the respect for the human rights recognized in the American Convention on Human Rights. The resolution was communicated to the parties, and the Salvadoran Government gave them 90 days to report on the matter to the Commission.


          The IACHR is not yet able to provide information on the investigation that it has been conducting, regarding which it has received a reply from the Salvadoran Government. Continuing with its role as a channel for a friendly solution, it has ordered that reply made available to the claimants for the appropriate purposes.


Salvadoran Government’s response


          The Salvadoran Government, in reply to a note requesting information from it about the progress made in the human rights area, has sent a telegram stating the following inter alia:


         We report Decree 618 extended 31/12/87; persons arrested judged by Penal Code, Decree 618 only applies to pending trials Decree 50. Released by armed forces 2,316, dismissed by military judges, 519, exchanged 88, wounded an injured abroad 115, total 3,038. New Attorney General Roberto Girón Flores. He has established Office of Assistant Attorney General for Human Rights. Actions carried out emphasize punishment persons guilty human rights violations: he has reopened trial of Monsignor Romero, the nuns, Dutch newspapermen, etc. Prisoners detained Mariona and Illopango much better than last year. Up to August 1987, there were 518. Disappeared 1986, 161. Of those, 81 located, 80 remaining to be located. Disappeared January-July 1987, total 74, of them 20 located, 46 not located. Women (comadres) arrested accused belonging FMLN terrorist groups: Lucía del Carmen Menjivar Vásquez, released May 9/87, Gloria Alicia Galán García, remanded Second Criminal Court, detention decreed for subversive association. The case of Jorge Salvador Obau, kidnapped by armed civilians 1/9/87, took to unknown destination in vehicle owned by a private party, authorities are looking for him to interrogate him about the event, armed forces deny holding him. CDH, prosecutor’s office have started investigations to determine his whereabouts. Public security forces are investigating abduction.


          The Salvadoran cooperative movement, according to many complaints received by the Commission during the period of this report, has been hounded, harassed and persecuted by the Salvadoran Government authorities. This has resulted in a considerable number of cooperative members arrested, mistreated, wounded and, according to reports, some have even disappeared. The Commission much regrets having to deal with a topic as delicate as this, and is now engaged in processing these complaints according to its regulatory procedures.


          All in all, as indicated in the Commission’s last report, the main problem facing the Republic of El Salvador is the internal war that started over seven and a half years ago. This, in addition to disrupting the legal system as noted, has already caused over 63,000 deaths, severe destruction of the country’s socioeconomic infrastructure, and many attacks against the life and safety of the population.


          In light of this situation, the Commission has always attached special importance to and vigorously encouraged a peaceful and negotiated solution to the conflict between the Salvadoran Government and the rebel forces opposing it. As indicated in the last report, talks to that end took place first in the city of La Palma on August 15, 1984, and later in Ayaguayo on November 30 of that year. Unfortunately, these negotiations were not continued because the third round of talks was unsuccessful despite the efforts of the Catholic Church.


          Accordingly, the Commission points out as a positive fact that new hopes of peace have emerged, through negotiations and dialogue under the agreement reached in the Republic of Guatemala at the recent meeting of the Presidents of the Central American countries on August 13-16 of this year.


          In fact, according to the plan presented by the Costa Rican President, Dr. Oscar Arias-Sánchez, the Central American presidents have concluded an agreement establishing a 90-day period to produce a cease-fire in the countries where internal armed struggle is taking place, as in the case of El Salvador. Under the peace plan, the governments in and outside the region must refrain during that period from continuing to provide military aid to the armed groups operating in the neutral area, and in the interior of the countries amnesties are to be declared to promote the incorporation into the national political activities of those who are today part of insurrectional armed groups. The states in which some form of a state of emergency is in effect must also lift it during the 90-day period.

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