REPORT ON THE
SITUATION OF HUMAN RIGHTS
RIGHT TO A TRIAL AND DUE PROCESS OF LAW
No person may be deprived of this liberty except in the cases and according 6o the procedures established by preexisting law.
No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character.
Every individual who has been deprived of this liberty has the right to have the legality of his detention ascertained without delay be a court, and the right to be tried without undue delay or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody. /
Every accused person is presumed to be innocent until proved guilty.
Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with preexisting laws, and not to receive cruel, infamous or unusual punishment. /
1. A number of communications addressed to the Commission, many of which were presented during its on-site observation, denounce the violation of the right to a fair trial and to due process of law; according to these communications arbitrary arrests, generally followed by a period of detention incommunicado and disrespect for due process of law, have become common in El Salvador. The majority of the cases denounces involve priests or other individuals associated with the Catholic Church, leaders and members of the opposition parties and groups, university students and members and representatives of labor campesinos groups.
A. Salvadorian Law
2. The constitutional standards regarding physical liberty and the related rights are found in Title X of the Constitution, “Individual Rights.” In accordance with Article 163 of the Constitution, “All the inhabitants of El Salvador have the right to be protected in the preservation and defense of their …liberty...” Under Article 164, no person may be deprived of his liberty “except after being tried and sentenced in accordance with provisions of law…” and, “every person has the right of habeas corpus… whenever any authority or individual illegally restricts his freedom.”
3. Orders for arrest or imprisonment must always be in writing except in the case of an offender caught in the act, and issued by the competent authority in conformity with the law (Article 166). Detention for the purpose of investigation must not last longer than three days, within which period the investigating court is bound to inform the prisoner in person of the reason for his detention, to hear his testimony, and to order either his release or his provisional arrest (Article 166). Finally, “No person shall be tried except under laws that were promulgated prior to the commission of the offense in question, and by a court that was previously established by law” (Article 169).
4. In order to permit better understanding of the allegations received by this Commission, in the following paragraphs we shall show in summary how these constitutional standards are implemented in Salvadoran law and the legal procedure for depriving a person of his liberty. Taking into account the fact that most of the communications refer to the period between 1975 and the end of 1977, this summary is based on the Code of Criminal procedure that entered into force on June 15, 1975. Following that, the principal amendments that have been in force since October 24, 1977, will be indicated.
1. The Procedure for Legal Arrest
5. The regular procedure for making a legal arrest is established in the Code of Criminal Procedure in accordance with the principles of the Constitution. “No power, authority, or official may issue orders for arrest except in conformity with the law, and such order must always be in writing” (Article 242, C.C.P.). Orders for arrest may come from a judge or other component authority. However, arrests without written order may be made by any person, in the case of an offender caught in the act of committing an offense by members of the auxiliary organs or in the case of a prisoner who has escaped (Article 242 and 243).
6. After the capture of an individual in the act of committing an offense, the person arrested must be immediately delivered to the nearest authority (Article 242, C.C.P.). In the case of an arrest made by a member of an auxiliary organ, he must present the person arrested immediately to the corresponding body (Article 243. C.C.P.). From the moment of his capture, the person arrested has the right to be informed of the acts imputed to him and he shall be permitted to call a lawyer or other authorized person to defend him. No method of physical or moral coercion against a person’s will, not should be used nor should a person be denied or have restricted the rights and guaranties to which he is entitled as an individual (Article 46, C.C.P.).
2. Preliminary Investigation
7. The auxiliary organ has the obligation to deliver the arrested person to the competent judge within twenty-four hors of his capture (Article 142, 243, C.C.P.). During that period the auxiliary organ may proceed with the interrogations, investigations, and inquiries (Article 138.5, C.C.P.), keeping the corresponding minutes and sending the originals to the competent judicial authority (Article 242, C.C.P.). In common crimes, any confession made out of court to an auxiliary organ may be considered sufficient evidence for decreeing provisional arrest in order to present the case to the full court and submit it to the jury provided it meets the following requirements (See Article 496, C.C.P.):
a) It was given within twenty-four of the time of capture;
b) It was given before at least two witnesses, of legal age, who know how to read and write, who have witnessed and heard the whole confession, who merit the faith of the judge, who do not belong to any dependency of the auxiliary organs, and who have interrogated the person charged about the spontaneity of his confession;
c) It is in concordance with other evidence that may exist in the proceeding on the same punishable act.
If the out-of-court confession is the only evidence in a case that does not go to a jury, the judge shall pronounce a verdict of acquittal. In addition, in the political offenses specified in Article 515 (Criminal Code), an out-of-court confession shall have no legal value at all and cannot be considered as evidence or an indication of evidence (Article 496, C.C.P.).
3. Delivery to the Judge
8. When the person charged has been presented before the judge, the latter should order his arrest for the period for investigation, a maximum of seventy-two hours, and send him to the appropriate detention center with written notice. Within this period, the judge must decree either provisional arrest or release (Article 244. C.C.P.).
“Every person arrested shall be interrogated immediately or at the latest within twenty-four hours after having been made available to the judge, except in the event of impossibility of this” (Article 189, C.C.P.). Before taking the investigative statement from him, the judge has the obligation to inform the person charged what the act attributed to him is, and the rights to which he is entitled under the law (Article 188, C.C.P.). The person charges in entitled, for example, under Article 46 of the C.C.P.:
1. “To be considered innocent until he is declared guilty by official verdict..”;
2. “Not to be compelled to testify against himself”;
3. “to name a defender at any time from the start of the procedure”;
4. “Not to have means used against him that would impede his free movement.”
In the presence of a defense attorney, if the person charged has already named one (Article 188, C.C.P.), the judge inquires about his identity (Article 190, C.C.P.) and his participation in the act (Article 191, C.C.P.). In no case may this statement be taken under oath of promise or by coercion or deceit (Article 191). After receiving the statement, the judge must inform the accused that he has the right to read and approve the corresponding minutes, and make any clarifications or corrections, (Article 192, C.C.P.).
When he determines that the existence of an offense has been shown, and that there is evidence that the person charged participated in it, the judge may decree provisional arrest (Article 247, C.C.P.). The order of arrest must contain the facts identifying the person charged, a summary of the facts on which the order is based, and the legal classification of the act, in provisional form (Article 248, C.C.P.).
4. The Period of Investigation
9. When there is no right to release from prison, the provisional arrest in continued during the period of investigation. The investigation includes all the acts and judicial proceedings necessary to verify the existence of the offense and to establish responsibilities ((Article 115, C.C.P.). If the person charged is under arrest, the first judicial proceedings must be conducted within the period of seventy-two hours from the start of the procedure (Article 117, C.C.P.).
If it is a case of an ordinary criminal trial, (for a crime punishable by death or by imprisonment for a maximum term exceeding three years). The judge must complete the investigation within a period of ninety days, by the may extend that period to one hundred twenty days should that be essential (Article 123, C.C.P.). In contrast, for summary trial (for offenses punishable by fine or by imprisonment for a maximum term not exceeding three years), the period for investigation is forty-five days (Article 395, C.C.P.). In both cases, at the conclusion of the period of investigation, the judge must order that the case be dismissed or that it be brought to trial.
5. The Writ of Habeas Corpus
10. The right to protection from arbitrary arrest is protected by the writ of habeas corpus: “Every person has the right of habeas corpus before the Supreme Court of Justice or the appellate courts not sitting in the capital, Whenever any authority of individual illegally restricts his freedom” (Article 164 of the Constitution). The protection offered by this recourse is made effective through the writ of habeas corpus, which may be invoked in any case in which there is imprisonment, confinement, custody, or restriction that is not authorized by the law (Article 40, Law of Constitutional Procedures).
This writ is requested in writing, and the request is presented directly to the Court by letter or telegram from the person whose freedom is restricted or by any other person. “The request should state, if possible, the type of confinement, imprisonment, or restriction of the detainee, the place of detention, and the person in whose custody he is, requesting that the writ of habeas corpus be issued and swearing the truth of the declaration (Article 41, L.C.P.). If the arrested person is in the custody of an authority that is not judicial, the judge may provide that that authority place the person arrested at the disposal of the competent judge and return the writ with a report. (Article 48, L.C.P.). “If the person arrested should be molested with more imprisonment or restrictions than those permitted by the law. Or held in solitary confinement against the provisions of the law,” the Judge may decree that that illegal imprisonment or restriction be ended and that the writ be returned to the court with a report (Article 57, C.C.P.). In the event that the arrested person has been transferred to another place, the authority in whose custody he has the duty to inform the Judge of the place where he is (Article 60. L.C.P.).
In any case of disobedience of a writ of habeas corpus, the Judge must inform the Court. It may request the aid of armed force, placing it at the disposal of the Judge, so that the person favored may be brought before the Court. And the disobedient authority may be apprehended, provided that authority is not a Justice of the Peace, a Judge of First Instance, or a Governor (Article 61, L.C.P.).
6. Recent Amendments Related to Arrest
11. The procedure for making a legal arrest was modified at the end of 1977, by two decrees of the Legislative Assembly: Decree 381, of October 20, 1977 (Official Gazette, Volume 257, October 24, 1977), and Decree 407, “Law of Defense and Guaranty of Public Order,” of November 24, 1977, (Official Gazette Volume 257, November 25, 1977).
In summary, these decrees give the auxiliary organs greater freedom of action. The following are auxiliary organs: The General Administrations of the National Guard, of the National Police, of the Treasury Agents, of the Customs Revenue Service, and of the Income Tax Service (Article 11, C.C.P.). The new version of Article 11, C.C.P. (Decree 381) includes in the list of auxiliary organs recognized by the aforementioned law “the dependencies of the aforementioned institutions.” In addition, by a new clause added to article 181, C.C.P., the circumstances in which search and seizure may be made without judicial order are expanded; “When it is presumed that there are arms, munitions, or explosives in a certain place for subversive purposes or in order to commit offenses against the public peace or against the existence and organization of the state” (Decree 381). O course, search and seizure without judicial order, based on a mere presumption, offers great possibilities for making arrests without written order, backed by the concept of the offender caught in the act.
12. Another significant amendment is that to Article 143, C.C.P. (Decree 381), which permits the auxiliary organs to keep the person charged for seventy-two hours before delivering him to the competent judge. Also, the period within which an out-of-court confession may be obtained that will have validity is changed from twenty-four to seventy-two hours from the time of the arrest (Decree 381, Article 243, C.C.P.). Not only is the possibility of extracting an out-of-court confession increased, but also arbitrary arrest in facilitated, and it is converted into a more effective weapon or the intimidation of the members of the opposition to the government.
13. Another important limitation on individual guaranties is contained in the “Law of Defense and Guaranty of Public Order,” Decree 107 of November 24, 1977.
This law established a series of offenses of a political nature conceived in very broad terms, which permits their eventual interpretation and application in prejudice to all kinds of persons opposing the government. The broad range of offenses established and penalized by this law runs from rebellion, sedition, or uprising against the legally constituted government (Article 1, No. 1). To the propagation by any means of news or information considered biased or false and intended “to disturb the constitutional or legal order, the tranquillity or security of the country, the economic and monetary system, or the stability of public values or effects” (Article 1, No. 15).
Those tried for these offenses are deprived of the fundamental procedural guaranties: in the first place, “any presumption or indication on the participation of the person or persons charged” in one of these offenses is sufficient for the Court to order his or their provisional arrest (Article 15). This may imply a serious limitation of individual freedom, since the persons charged with any of offenses punished by this law “are not subject to release from prison” (Article 6, final paragraph.
The right to appeal from the decisions of the Court that hears the case is also seriously limited in the case of trials governed by this law. In fact, the only decisions that may be appealed are the writ of verdict. Therefore, the decisions that provide for the arrest of the persons charged may not be appealed.
The standards that govern evidence also seem to be against the interest of persons who may be charged. Thus the law provides that there shall be admitted as means of evidence that should be considered by the Court. “The evident or notorious acts that may be in the public domain because massive information has been given about them” (Article 21). In addition, “the mere mention made by the person charged in his statement, on the participation of a person in the commission of the offense, may be the basis for proof. Provided that his statement is corroborated by least one other element of proof and when it is corroborated by more than one element of proof it may be considered as an element of presumption” (Article 22). It is important to bear in mind that a mere indication is sufficient for ordering the provisional arrest, without release on bail and without appeal, of the person charged.
Finally, the law removes from trial by jury the offenses listed thereon and the common crimes in connection with them (Article 12).
In a note dated June 22, 1978, the Ambassador of El Salvador to the OAS transmitted to the Commission the text of telex No. 655 sent y the Foreign Ministry of El Salvador, in which it dealt with the application of Articles I and 16 of the “Law of Defense and Guaranty of Public Order”:
“A. By decision of the First Chamber of Criminal Matters of the First Section of the Center, issued at eleven o’clock on June 8, 1978, dismissals were made of the cases involving the following persons, who had been held on charges of possession of subversive propaganda, of weapons, of explosive and incendiary artifacts, in connection with the strike of the Izalco Sugar Mill on January 31 of this year. Charges were dismissed against the following: Salvador Alfaro Garzone, Alejandro Martínez Varela, Roberto Arturo Sánchez Chacón, Venancio de Jesús Arana Castillo, Manuel Francisco Ramos Puchagua or Francisco Manuel Puchagua, Carlos Ernesto Zepeda Colocho, Rafael Canales Guevara, Miguel Angel Martínez Trinidad, Manuel Alfredo del Cid, Oscar Humberto Villeda Rodríguez, José Mariano Gómez Franco, Ricardo Serrate Leiva, Camilo Tutila or Moran Tutilo or Camilo Federico Tutila Morán, Simon de la Or Cornejo or Sim Cornejo de la O, Raymundo Elías Rodríguez, Alvaro Edmundo Flores Bocanegra or Alvaro Eduardo Bocanegra and Tito Campos.
“It consider it timely to transcribe paragraph four of the preamble of that decision which reads s follows:
“IV. In regard to the evidence preciously listed these considerations are made: 1. That the official letter referred to in paragraph A, by itself, has no value as evidence. 2. The witness referred to in paragraph B does not state the names of the persons from whom the propaganda was seized, but states that this seizure was made form some of the seventeen persons captured. 3. The one in paragraph C says that the propaganda was found in clothes closets. 4. The one in paragraph D limits himself to saying that the persons charged were involved in the possession of propaganda. 5. The witnesses referred to, in paragraph E do not mention the names of the persons from whom they seized the weapon and only two of them mention some. 6. The agent Alberto Dubón Polanco stated categorically those arms, or explosive substances or artifacts were not seized from the seventeen persons captured. 7. And witness Eduardo Antonio Hernández Alemán said that they had found the weapons scattered about. 8. Almost all the capturing agents state that there were ore than three hundred people within the Izalco Sugar Plant at the time of the capture of the seventeen persons charged. 9. The witnesses referred that at the end of the previous considerandum do not refer individually to what each of the persons charged said for which reasons this testimony is not considered of value as evidence.
“On the basis of the foregoing considerations, the Court considers that there has not been sufficiently established or proved: A. The delinquency of the eighteen persons charged mentioned at the beginning of this decision, in the offense against the constitutional public order. Consisting in propagating doctrines that are directed toward destroying, the social order or the political and juridical organization established by the Political Constitution. It is proper provisionally to dismiss the charges, in favor of all those persons charged referred to in this paragraph, as was requested in writing on folios 325 and 372 of the record.
“(Signed) Mendoza Jerez
Minister of Foreign Affairs”
Later, the Ambassador of El Salvador to the OAS, in a note dated June 26, 1978, provided to the Commission some supplementary points with regard to the application of that law.
“For better understanding of the note already mentioned, let me say, by way of explanation, that the crimes for which the persons mentioned in the decision. I transcribed are specified in Article 1, of the “Law of Defense and Guaranty of Public Order,” which in this case involved the seventh paragraph of that article. Moreover, the First Chamber of Criminal matters of the First Section of the Center has acted in first instance on the basis of the competence given it by Article 9 of the same law. Finally, Mr. Chairman, the persons who, by decision of the Chamber, have had the charges against them dismissed, took advantage of Article 16 of the aforementioned law.”
B. Denunciations received by the Committee
14. The following are brief summaries of some of the cases, by way of examples, in which violation of the right to justice or the right to due process of law has been alleged. In each case the claimant has alleged that the internal remedies have been exhausted. Taking into account the amendments made by Decrees 381 and 407, of October 24 and November 25, 1977, these cases are presented in chronological order according to the date of arrest.
1. Case 2806 (other aspects of this case are dealt with in Chapter III).
“On Sunday, October 12, 1975, Alfredo Elias Orellana, a student, and Víctor Manuel Sánchez, a laborer, were captured by the National Guard in the city of La Union.”
The following statements made by Mr. Orellana are from a document sent to the Commission:
“At around 9:20 a.m., Víctor Manuel and I were walking in front of the National Guard post in the city of La Union, when one of the agents spoke to us. The dialogue was as follows:
--Where are you boys going?
--To see a friend.
--What are your names?
“We identified ourselves and they took down our names. All this occurred on the street. Just then, the Sergeant came out and ordered that we go to the Commandant’s office, where our names were taken again. They decided to send us to San Miguel and alleged that they had seen me in an attack on the National Guard post in El Carmen. At around 11:00 a.m., they took us away in a white Toyota pick-up, license plate P.99059, which belonged to Mr. Carlos Lino Lazo. Three agents guarded us. We reached the barracks of the National Guard at San Miguel at around 12:00 a.m., where they received us with slaps in the face. Víctor Manuel was bleeding from the mouse. One agent pointed to me and said that I was one of the leaders of the demonstration that took place in San Miguel on September 10. Then we were placed in the hands of agents in civilian dress and we were tortured and were kept with our thumbs bound together tightly.
“At around 1:00 p.m., we were sent in shackles to San Salvador in a Willys Jeep belonging to the National Guard, guarded by 4 agents. We reached the National Guard barracks at 4:00 p.m.…”
According to this account, they spent four days at the national Guard Headquarters, and were held incommunicado and tortured. Mr. Orellana was released on October 16:
“At around 12:00 p.m., they took us out and brought us before Colonel Rosales y Rosales, then Director General of the National Guard. My father was with him. Colonel Rosales y Rosales said to me that I should “only study.” He warned Víctor Manuel that if they caught him again they were going to throw the book at him. They gave us our belongings and made my father and us sign a statement to the effect that we were released and that “during our stay in those quarters, we had not been tortured.”
“Rosales y Rosales ordered a car to take me and my father to the eastern bus terminal; he ordered a taxi for Víctor Manuel. When I left the Director’s office, I said goodbye to Víctor; the car that was to take us already had its motor running, while a red taxi, which presumable was for Víctor, had its motor turned off and was parked more to the inside, not facing the exit. We got into the car and drove away from the National Guard quarters. The taxi never moved. I did not see Víctor Manuel get in the cab or come out of the quarters.”
According to the claimant, another detainee, Enrique Garzona Olivo, was able to see and speak with Mr. Sánchez in the punishment cells of the investigation Section of the National Guard between November 2 and 12, 1975. Mr. Sánchez asked him that his companions in the U.N.D. or in the FUSS be advised as to his presence at the quarters, despite the release statement that they made him sign on October 16. The Government has denied this arrest and the whereabouts of Mr. Sánchez are not know.
1. Case 2807 (other aspects of this case are discussed in Chapter III).
Enrique Garzona Olivo was captured by two pair of national Guardsmen on November 2, 1975, at 8:40 a.m., as he was leaving his house (Colonia San Antonio in Sonsonate) en route to the Santa Cruz Hacienda… He was accompanied by a youngster. Both were on horseback when they reached the intersection of Acajutla Street in front of the El Jobo Hacienda. The uniformed guards stopped them and began to question him as to whether he knew what had happened in Sonsonate some moments before. He replied that he did not know anything. They asked him for his papers and he gave them his identification card, a registry of cattle brand, and a letter of sale for a cow that he was going to take that day from the El Coyol corral to a piece of land that his brother leases in San Antonio del Monte, which was why he was traveling there. When they saw the document the agents said the attackers had fled on horseback. To date he still does not know to what attack they referred.”
The claimant stated that Mr. Garzona was detained and held incommunicado for 18 days, first in Sonsonate and then in the punishment cells of the Investigation Section of the National Guard in San Salvador, and finally in the Penitentiary at Sonsonate.
3. Case 2789
“Sonia Estela Ramírez left her home for the central market in San Salvador, on the afternoon of June 23, 1976. From there she started out for the university where she is a third-year student in economics. She was detained as she left the market by agents dressed in uniforms of the National Guard. A writ of habeas corpus was presented, and all the security corps denies any knowledge of her.
“On November 15, 1977, the National Police released a political prisoner who stated that he had seen Sonia Estela in a very delicate state of health, in the basement of the National Police.”
4. Case 2788
“Jorge Luis Zelayandía was seized on October 9, 1976, by agents dressed in civilian clothing, and by Lieutenant Jose Antonio Castillo of the National Guard.
“The authorities denied his capture.
“The Supreme Court of Justice took cognizance of the matter because a writ of habeas corpus was filed on October 18, 1976. However, the outcome was negative.
“The reports to the effect that he was once being held by the National Guard, then by the Customs Police, and then again by the National Guard are from individuals who have been held prisoner and who for reasons of personal safety cannot give their names. The most recent report is from a prisoner who was released in November of 1977.”
5. Case 2792
“On November 26, 1976, Manuel Alberto Rivera, a professor, was captured in the vicinity of “Colonia 14 de Diciembre” by members of the National Guard under the command of Sergeant Israel Navas. In an attempt to involve Rivera in subversive activities, those members of the National Guard, with the aid of troops from the National Police, attacked a house in the vicinity of the town of San Antonio del Monte on November 27. This was reported in the newspaper El Mundo but no mention was made of casualties or arrests.
“That very day, the judge in Sonsonate appeared at the scene accompanied by authorities and agents of the public order who were carrying buckets of paint, subversive propaganda, a mimeograph machine and a typewriter. They took the first steps in setting up the corresponding investigation; in doing so they ignored the fact that the justice of the Peace of San Antonio del Monte had started the proceedings on the case two hours earlier, since the house was within his jurisdiction. The proceedings conducted by the Justice of the Peace of San Antonio del Monte uncovered the malicious intent of those who came after; for torn paper, a small table and two drops of blood—one on the door hinge and another on the jamb—proved that the Sonsonate judge rigged the investigations. It should be pointed out that neither Professor Manuel Alberto Rivera nor any other individual was found to be involved in any of the accounts given by the authorities and the respective courts. The trial has not been set up in the Sonsonate court because the National Guard in Sonsonate had not filed the report of what that security group had done. No report ever arrived. The judge ordered that the case be closed, since the proceedings conducted by the Judge of San Antonio nullified the proceedings.
“On December 2 a “recurso de amparo” was filed before the criminal chamber of Santa Ana which named Alfredo Flores Medina as judge; no court clerk was named. During his investigation to find the individual in question in one of the various jails of the city of Sonsonate, Flores Molina was not allowed to see the book that records the entry and release of prisoners at the headquarters of the National Guard. Therefore, the arrest of Manuel Alberto could not be proved. However, confidentially the authorities assured that the professor was being held there and that after four days he had been sent to the Prisoners Instruction Center of the Third Infantry Brigade of Sonsonate. At that time, that center was under the command of the individual who is now Director General of the National Police, so that that individual can testify on the case. It should be pointed out that the entire time he was held under arrest in Sonsonate, Rivera was kept unconscious and they took him out to get sun through a secret passage.
“From there he was taken in an unmarked car to the general headquarters of the National Guard and then to the general headquarters of the National Police where he was confined for a long period of time. Now he is again in the cells of the national Guard; trustworthy reports indicate than on certain days they take the prisoners to the basement of the home of former President, Colonel Molina; the conclusion reached is that these political prisoners are being rotated among the various secret jails, so that relatives and judges do not find them.
“On December 6, a writ of habeas corpus was entered before the Supreme Court of Justice in the name of Manuel Alberto Rivera. When his father appeared to request reports on what the judge had done, the reports were not with to read one observation made by the judge, arguing that such observations were addressed only to the Supreme Court of Justice.
“To prove the innocence of Manuel Alberto Rivera in the unjust and illegal detention of which he is victim, a criminal record was requested as was some certifications to determine whether charges had been brought against him. According to the records provided by that agency, there are no criminal charges against him.”
6. Case 2793
“María Luisa Pichinte was captured by uniformed agents of the National Police on February 2, 1977, at around 3:00 p.m., in the city of Atiquizaya. She was taken to the headquarters of the National Police and from there to the general headquarters of the National Police of San Salvador where she has been tortures and raped by members of that corps. This known by individuals who were also being held and were later released. Their names are being withheld for reasons of safety.”
In Response to their inquiry, members of the Special Committee were informed by Mr. Carlos Alberto Morataya V., Special Police Judge of San Salvador, in a memorandum dated January 17, 1978, that María Luisa Pichinte was not listed in the records of that court.
7. Case 2644
“On March 18, 1977, as he left his place of work at “Texas Instrument” in Soyapango, Julio César Fabian Villalobos headed for the center of San Salvador for his English class; as he got off the bus, route 29 via Central Ferretera, he was captured violently at around 6:30 p.m. by agents in civilian dress. He was placed in a cream-colored Volkswagen with expired license plates.
“ The reason for his arrest are still unknown, as there is no warrant alleging any crime. All measures possible to learn his status and obtain his release have been exhausted. All official agencies deny any knowledge of him.
“The Minister of Foreign Affairs told us emphatically that he could not help us because the President, at a meeting with the ministers, had ordered that they take no action in connection with political prisoners.
“A writ of habeas corpus in the name of Julio Cesar was filed before the Supreme Court of Justice, but yielded no results.
“As to the confinement, Mr.…… states the following: one day in March, Mr. ….. was detained at the national police headquarters and saw Julio César in cell No. 5; he noted that Julio César had been tortured, and Julio César told him that they had used electric shock on him in the National Guard. The next day they took him with his eyes blindfolded to an unknown destination.”
8. Case 2795
“Pablo Armando Flores Soto and Ana Elsa Flores, two children, worked on the Porvenir Hacienda of Mr. Hernán Ayala. He had them arrested because one rainy day they stopped working and went home.
“They were arrested in the following manner: three trucks (one company of soldiers) of the Government, equipped with loud speakers, went through the streets asking the workers on the hacienda to go to the hacienda and receive the their pay and to speak with the owner. Pablo Armando and Ana Elsa went, along with other employees; there they were arrested (a total of 22 persons individuals, including 19 minors, among them Carlota Miranda, Reyna Pérez, Roberto Abaleta, etc.). The mother of Pablo Armando and Elsa wanted to remain with her children or hope that they would be turned over to her; but this was not done and they were taken away at rifle point, and the mother was threatened so that she would leave immediately. The children were mistreated that night and their eyes were blindfolded. This happened on December 2, 1977.
“They spent 3 days at the National Guard and were then taken to the Police Station, where they spent one month and three days. Pablo Armando was tortured and the girls were put in a sink of ice cold water. They spent Christmas and New years in jail. After speaking with the judge, if the parents had paid a fine the children would have been released on December 23, 1977. But since they did not have the money, the children were not allowed to leave until January 5, 1978, when Pablo Armando was released. Ana Elsa was in jail 19 days because the judge did not allow her to leave. The guards threatened the boys so that they would not leave the area and they were unable to work.
“The Police Judge took cognizance of the case.
“After 19 days, Ana Elsa Flores was authorized to leave, and Pablo Armando Flores left on January 5, 1978.
“The inhabitants of the valley are witnesses to the event.”
9. Case 2803
“On December 21, 1977, Reynaldo Menjívar was detained as he was entering his house in Agua Caliente, Chalatenango. Various Treasury Police Agents at 8:20 p.m. arrested him. A shot was heard during the arrest and blood was seen. Witnesses also hear “don’t kill me.” His whereabouts since that time are not known.
“Mr. Menjívar is establishing a cooperative. He had taken a course on cooperative movements at the Inter-American Cooperative Institute and was captured one month after his return from Panamá. The Commandant of the Treasury police in Agua Caliente, René Monge, had said earlier that when Reynaldo returned he was going to take him because he was in Cuba training to become a guerrilla.
“Mr. Menjívar was told what the Commandant had said and he said that he would remain, that id did not matter to him because he had done nothing wrong.
“A writ of habeas corpus has been filed and all the security corps have been visited. Not one of the security corps has provided any information on Mr. Menjívar; not one claims to have arrested him. To date his whereabouts are still unknown. The writ of habeas corpus was rejected.”
In order to judge the truth of these allegations, it is important to note that most of these cases have certain elements in common. None of the individuals involved was shown an arrest warrant; however, neither can it be said that all were caught in the act of committing a crime. In some cases, the procedure used by the members of the auxiliary corps resembles a kidnapping more than a legal arrest. The accused is not informed of the rights to which he is entitled under the Code of Criminal Procedure and he is held incommunicado in violation of the law, and without respect to the deadline which the law established for the accused to be brought before the competent judge. At times the individual is released after an arbitrary period of four, 30 or 40 days imprisonment, and the charges of “suspicious inebriate without papers” are used to justify the action. In many cases, despite the statements of witnesses to the arrest, the authorities have denied the detention of an individual who, after days or weeks, contradicts everything when he is released. Furthermore, when released, those who have been held prisoners have testified in numerous cases to the detention of individuals whose arrest the Government refuses to acknowledge.
At the same time, it is important to emphasize the ineffectiveness of the writ of habeas corpus in all these cases. A judge is appointed, but the geographic area of his authority is limited and the prisoner may be transferred to other quarters or detention center outside that area of authority. Although the authorities must inform the judge if the individual on whose behalf a writ of habeas corpus has been filed has been detained or has been moved, apparently this obligation is not carried out and at time the judge is denied permission to conduct an inspection of the jail.
American Convention on Human Rights
Article 7. Right to
Personal liberty (The text of this article appears at the beginning of
Every person has the right to a hearing, with due guarantees and
within a reasonable time, by a competent, independent, and impartial
tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of
his rights and obligations of a civil, labor fiscal, or any other nature.
2. Every person
accused of a criminal offense has the right to be presumed innocent so long
as his guilt has not been proved according to law.
During the proceedings, every person is entitled, with full equality
to following minimum guarantees:
a. The right of the accused to be assisted without charge by a
translator or interpreter, if he does not understand or does not speak the
language of the tribunal or court;
b. Prior notification in detail to the accused of the charges against
c. Adequate time and means for the preparation of his defense;
d. The right of the accused to defend himself personally or to be
assisted by legal counsel of his own choosing, and to communicate freely and
privately with his counsel;
e. The inalienable right to be assisted by counsel provided by the
state, paid or not as the domestic law provides, if the accused does not
defend himself personally or engage his own counsel within the time period
established by law.
f. The right of the defense to examine witnesses present in the court
and to obtain the appearance, as witnesses, of experts or other persons who
may throw light on the facts;
g. The right not to be compelled to be a witness against himself or to
plead guilty; and
h. The right to appeal the judgement to a higher court.
A confession of guilt by the accused shall be valid only if it is
made without coercion on any king.
4. An accused
person acquitted by a non-appealable judgment shall not be subjected to a
new trial for the same cause.
Criminal proceedings shall be public, except insofar, as may be
necessary to protect the interests of justice.