3.       Applicability of Article 42 of the Regulations of the Commission in certain cases reported to the Inter-American Commission on Human Rights

 

          BACKGROUND

 

          a.       Throughout the armed conflict, the Inter-American Commission on Human Rights received and processed numerous petitions concerning violations of the fundamental rights set forth in the American Convention.  In some of these cases, it ultimately issued its findings and conclusions.[25]  Others cases were filed, some because the complaints were resolved, others because the petitioner so requested, and still others because the petitioners themselves did not follow up after filing the original petition with the Commission, even though they were repeatedly asked to update the information on the situations that they themselves had denounced.

 

          b.       It is noteworthy, and this has deeply disturbed the Commission, that in a surprising number of cases the Government of El Salvador has disregarded the petitions that the Commission, through its Executive Secretariat, has repeatedly filed in exercise of authorities that the Convention gives it for the handling of individual cases.

 

          c.       When the peace agreements were signed in June 1992, the Government of El Salvador expressed its interest in renewed cooperation with the Commission.  The Commission, for its part, updated each of the cases being processed and sent them again to the Government in the hope that the transition period in El Salvador would bring fulfillment of its international obligations and justice for the victims who had for so many years waited for some response concerning the violations that they reported to the Commission.

 

          d.       However, despite the fact that over a year has elapsed since the Government was first informed of the gravity of the acts reported, the proofs submitted by the petitioners, and the fact that the great majority of the complaints date back to the 80s, Salvadoran officials have not paid any attention to many of these cases, and although this Commission has repeatedly requested action and has allowed the deadlines called for in its Regulations to lapse, in order to give the Salvadoran officials more time to prepare their defense and to answer the complaints, those who have the duty under the law to give specific and proper responses to them still have not done so.

 

 

      SUMMARY OF THE CASES REPORTED  -  THE GOVERNMENT'S RESPONSE

 

          Regarding the Salvadoran Government's contention that the Commission has not taken into consideration its replies to cases 10.334, 10.361, 10.366, 10.368, 10.369, 10.550, and 10.919, the Inter-American Commission on Human Rights regards the Government's replies to these cases as merely a matter of form that do not reflect the existence of conscientious and independent judicial investigations.  The Commission requests that, in conformity with the instruments in the inter-American system for the protection of human rights, the Government issue a judicial decision on the individual cases in this report and on the cases decided upon previously by the Commission, that it conduct criminal investigations to punish those responsible for violations, and that it pay appropriate compensation to the victims and their families.

 

          An account of these cases is given below:

 

 

                                                   Case Nº 9,675 

                                           Manuel Antonio Rodríguez

 

          Facts:

 

          At 7:00 p.m. on November 8, 1985, six heavily-armed men wearing military uniforms entered the home of Manuel Antonio Rodríguez, single, age 18.  They grabbed him by the neck and beat him.  Surrounding the house were approximately 30 uniformed men with a green Armed Forces vehicle.  They put Manuel Antonio into the vehicle after threatening his family.  As of November 22 of that year, the family were unable to learn the whereabouts of Manuel Antonio, even though they went to various agencies seeking help.  They therefore filed a petition of habeas corpus with the Supreme Court.  His whereabouts is unknown.

 

          The Government was again asked about the status of the case, and was reminded of the provisions of Article 42, on July 6, 1993.  No reply has been received.

 

                                                   Case Nº 9,681
                                          Juan Pablo Mejía Rodríguez

 

          Facts:

 

          On November 21, 1985, a number of men stopped the vehicle in which Mr. Juan Pablo Mejía Rodríguez, a 35-year old farmer, was travelling.  Mr. Mejía Rodríguez was returning from a visit to the "La Cabaña" camp in "Corozal" district, San Agustín, department of Usulután.  The men forced him to get out of the vehicle and ordered the driver to continue on his way.  According to a communication from ACOPAI (Asociación de Cooperativas Productivas Agrícolas), the individuals who kidnapped Juan Pablo Mejía Rodríguez were armed with M-16 rifles and accused the victim of returning from a meeting with guerrillas.  The next day, Mr. Mejía Rodríguez's body was found in the "Arrozales" district, San Agustín, department of Usulután.  The Judge of First Instance ruled that the cause of death was a bullet to the head.  The body had been beaten with rifle butts and both thumbs had lacerations.  Until 1985, Mr. Mejía Rodríguez had served as Director General of the National Farmland Finance Company (FINATA).  Investigation of this case and punishment of those responsible is requested.

 

          The Government was again asked to report on the status of this case, and was reminded of the provisions of Article 42, on July 6, 1993.  A note was received from the Government (September 30, 1993) advising that the case had been in the probable cause proceeding stage ("instrucción") since 1985;  no arrests had been made; the body of the victim had been identified; and witnesses had been summoned.

 

 

                                                   Case Nº 9,717 

                                       Teodoro Serafín Carranza Vega

 

          Facts:

 

          Mr. Teodoro Serafín Carranza Vega, age 48, was seized by members of the Civilian Defense Force and soldiers, at his home on San Luis La Planta Street, in the "Natividad" district, department of Santa Ana, on March 4, 1986, at 11:30 p.m.  He was taken away and his whereabouts is still unknown.  At the time he was seized, he was serving as Secretary of FENACOA (National Federation of Agricultural Cooperatives).  A petition of habeas corpus was filed with the Supreme Court, but produced no results.

 

          Information was requested from the Government on February 16, 1993.  This request was made again, and the Government was reminded of the provisions of Article 42, of July 6, 1993.  In a note of 30 August 1993  on five cases (9717, 10332, 10355, 10360 and 10468), the Government requested that these cases be filed, since these persons are still missing according to information form the CICR.  The relevant part of the note said:  "The Government of El Salvador has done everything possible to locate the persons mentioned, but so far all its efforts have been fruitless.  Moreover, according to the confidential final report from the CICR to the Salvadoran Government, the persons mentioned are among the group that its investigative office have not been able to locate.  Accordingly, since all measures possible have been taken by the Salvadoran Government to locate these persons, and no progress has been made in that endeavor, we consider that these cases must be considered closed because there is nothing further that can be done to determine the whereabouts of these persons."

 

                                                   Case Nº 9,757 

                                             Renzo Vladimir Cardoza

                                                    Juan Cardoza

 

          Facts:

 

          Renzo Vladimir Cardoza, 18, and Juan Cardoza, 12, were murdered at 12:30 p.m. on April 16, 1986, in the Grande de Alvarado river along the road from San Francisco Morazán to Tejutla in Chalatenango.  Two children who had been with them and who had stayed behind swimming in the river, heard the shots fired by the troops and were also detained.  They, however, were later released, because they were identified as residents of San Francisco Morazán.  When the unit patrolling the area killed the Cardoza boys and an unidentified youth, a helicopter following along with the patrol landed and its occupants cut off each child's right ear, thus branding them as "guerrillas".  The Cardoza family claimed the bodies of the two boys, but no one ever claimed the body of the third youth.  During the burial of the Cardoza children, Armed Forces soldiers threw in the victims' ears.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  A Government note of September 1993 on six cases (9757, 10005, 10178, 10184, 10292, and 10296) asked that the cases be filed because the complaints had never been brought to trial, since the Government alleges that "As we can see, the petitioners did not even file a complaint with the courts to investigate the cases, nor did they appeal for an internal investigation.  For these reasons, the Government of El Salvador respectfully requests that these cases be filed."

 

                                                  Case Nº 10,005 

                                     Vicenta del Carmen Lainez Lainez

 

          Facts:

 

          Vicenta del Carmen Lainez Lainez, age 20, single and a domestic by trade, was seized at 1:00 p.m. on April 26, 1987, by a group of some four men in civilian dress, heavily armed, in a creme-color volkswagen vehicle, with no license plates.  At the time, she was walking near radio station YSC, kilometer 7.5 on the Northern Main Highway.  Her whereabouts and the reasons for her arrest are still unknown.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  In a note of September 1993 on six cases (9757, 10005, 10178, 10184, 10292, and 10296) The Government asked that the cases be filed because the complaints had never been brought to trial, so the Government alleges that "As we can see, the petitioners did not even file a complaint with the courts to investigate the cases, nor did they appeal for an internal investigation.  For these reasons, the Government of El Salvador respectfully requests that these cases be filed."

 

                                                  Case Nº 10,012 

                                         Antonio Hernández Martínez

 

          Facts:

 

          Mr. Hernández Martínez, 42, Secretary General of the National Association of Farmers of the Province of San Miguel, was arrested by soldiers, tortured and then decapitated on April 16, 1987, in the San Luis de la Reina district, department of San Miguel.  His body, riddled by machine gun fire, was found on May 2 by members of the ANTA-UNTS, who came in two buses.  These people, in cooperation with the Human Rights Commission of El Salvador (a nongovernmental organization), buried Mr. Hernández Martínez.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  The Government sent a reply on September 24 stating that the body had been exhumed in 1987, but does not mention any investigation nor trial in connection with the death of Mr. Hernández.

 

                                                  Case Nº 10,175 

                                                Lucas Arias Chávez

 

          Facts:

 

          Lucas Arias Chávez, age 32 and a day laborer, was seized at 6:30 p.m. on February 26, 1988, at his home in the Salitre district, Nejapa, by uniformed soldiers of the National Army.  That morning, at 8:00 a.m., the same soldiers had come to search his home and had told his mother that they were looking for weapons.  Some days earlier, soldiers from the First Infantry Brigade had confiscated Mr. Arias Chávez's identification passbook.  His whereabouts is still unknown.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 4, 1993.  A Government note of September 20, 1993 on four cases (10175, 10226, 10335, and 10354) asked that the cases be filed because "The Ministry of Foreign Affairs, in order to cooperate with the IACHR, published several announcements in the newspapers in our country, asking that the persons involved or some member of their family come forward and provide further information, but although the announcements were repeated several times, no one came forward."  Four copies of newspaper announcements were attached asking that the missing persons mentioned in the petitions "report to or communicate with this Government Department, so that information submitted to the OAS IACHR can be updated."

 

                                                  Case Nº 10,177 

                                                      José Rivera

                                       Juan Alexander Andrade Rivera

 

          Facts:

 

          José Rivera, 63, and Juan Alexander Andrade Rivera, 14, were murdered at 7:00 p.m. on February 19, 1988, by soldiers of the San Vicente Fifth Infantry Brigade, as the victims were on their way to tend a cornfield in the Obrajuelo district, Tempa, in the department of San Vicente.  The above-named individuals were travelling with Carlos Andrade Rivera, 19, who survived the shots.  The case has been brought to the attention of the Joint Staff of the Armed Forces, the Fifth Infantry Brigade and the Attorney General of the Republic, but thus far no investigation has been conducted into the events.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 4, 1993.  A Government note of September 30, 1993 advised that the case was brought to trial on its own initiative on February 20, 1988, and the only action taken was that the body was inspected in the morgue.  The Government alleges that not all remedies have been exhausted, and asks that the case be filed.

 

                                                  Case Nº 10,178 

                                          Wenceslao Quesada Lainez

 

          Facts:

 

          Mr. Quesada Lainez, age 21, single and a student, was murdered at 4:00 a.m. on February 24, 1988, by a member of the Civilian Defense Force by the name of Santos Velásquez.  The latter had stalked the victim and then shot him to death as the victim was returning to his home in the Tapalhuaca district in the department of La Paz, after attending a wake for a deceased aunt.  According to relatives of Mr. Quesada Lainez, there had been enmity between the two men.  However, the Commanding Officer of the local Civilian Defense Board stated that Mr. Wenceslao Quesada Lainez was followed and then shot because he had taken Santos Velásquez rifle.  An inquiry was requested to shed light on the facts and punish those responsible was requested.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  A Government note of September 29, 1993 on six cases (9757, 10005, 10178, 10184, 10292, and 10296) asked that the cases be filed because the complaints had never been brought to trial, so the Government alleges that "As we can see, the petitioners did not even file a complaint with the courts to investigate the cases, nor did they appeal for an internal investigation.  For these reasons, the Government of El Salvador respectfully requests that these cases be filed."

 

 

                                                  Case Nº 10,184 

                                               Pedro López Morales

 

          Facts:

 

          Pedro López Morales, age 29, single and a day laborer, was seized on January 6, 1986, at 10:00 a.m. in the Camotepeque district, Nejapa, by members of the First Infantry Brigade Soldiers in civilian clothing.  At the time Mr. Lopez Morales was waiting for a distribution of provisions.  His whereabouts is unknown.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  A Government note of September 29, 1993 on six cases (9757, 10005, 10178, 10184, 10292, and 10296) asked that the cases be filed because the complaints had never been brought to trial, so the Government alleges that "As we can see, the petitioners did not even file a complaint with the courts to investigate the cases, nor did they appeal for an internal investigation.  For these reasons, the Government of El Salvador respectfully requests that these cases be filed."

 

 

                                                  Case Nº 10,226 

                                                Hilario Pérez Pérez

 

          Facts:

 

          Between 3:00 p.m.and 4:00 p.m. on March 1, 1988, in the Calavera district of the town of El Rusio, Department of Morazán, Mr. Hilario Pérez Pérez, age 36 and a community health worker by profession, was seized.  The next day he was taken to Corinto in the Department of Morazán and then by helicopter to San Francisco Gotera in that same department.  Subsequently, neighbors from Calavera district asserted that the responsible parties had released Mr. Pérez, but that one of the soldiers attached to Morazán Battalion, by the name of Bartolo Chávez, had killed him.  Bartolo Chávez had been a neighbor of the victim and at one time had alleged that the medicine that Mr. Pérez kept (as a community health worker) was for guerrillas.  The neighbors from Calavera also said that they had seen the body in a place known as "El Alto del Aguacate" in the jurisdiction of Corinto, department of Morazán and had buried it there.  They further stated that the site is inaccessible to the civilian population, since the Army has a permanent post there.  These facts were reported to the Justice of the Peace of Corinto, who refused to take the statements.  As for exhumation and identification of the body, the judge said that the area was totally inaccessible.  Various petitions of habeas corpus had been filed for Mr. Pérez with the Supreme Court, without result.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 4, 1993.  A Government note of September 20, 1993 on four cases (10175, 10226, 10335, and 10354) asked that the cases be filed because "The Ministry of Foreign Affairs, in order to cooperate with the IACHR, published several announcements in the newspapers in our country, asking that the persons involved or some member of their family come forward and provide further information, but although the announcements were repeated several times, no one came forward."  Four copies of newspaper announcements were attached asking that the missing persons mentioned in the petitions "report to or communicate with this Government Department, so that information submitted to the OAS IACHR can be updated."

 

 

                                                  Case Nº 10,286 

                                           Gerardo Hernández Torres

                                           Vladimir Guzmán Rosales

                                          José Guadalupe Domínguez

 

          Facts:

 

          On December 12, 1987, Gerardo Hernández Torres, Vladimir Guzmán Rosales and José Guadalupe Domínguez were seized by soldiers attached to Atlacatl Batallion and taken to the Central Headquarters of the National Police where they were brutally tortured.  Gerardo Hernández Torres died as a result of that torture on December 16, 1987, in La Esperanza de Mariona Prison in San Salvador.  He was already dying when he was imprisoned there.  It is vital that a thorough investigation be conducted. 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 4, 1993.  In a note of September 30, 1993, the Government said it recognizes the detention.  It adds that "when the prisoners were taken to the National Police Station from the First Infantry Brigade, they were examined by the nurse on duty, who reported that Gerardo Hernández Torres bore bruises from blows on the back and lacerations in the chest and that he said he had a contagious disease(...)  (the Court Secretary reported that) he showed no visible signs of violence. (...)  He adds that the prisoner suffered an attack of schizophrenia (...) and in 45 minutes was dead."  The Government concludes that "As we can see in this case domestic law was complied with, so that we respectfully (...) request that this case be filed."

 

 

                                                  Case Nº 10,292 

                                       José Antonio Rodríguez Acosta

 

 

          Facts:

 

          On November 17, 1988, Mr. José Antonio Rodríguez Acosta, age 34 and a photographer, boarded a 7-D bus at Parque Centenario in San Salvador, headed for Soyapango in the jurisdiction of San Salvador.  He was in the company of his wife.  Their bus and a route No. 4 bus with Army soldiers on board got into an altercation over which had the right of way.  The route No. 4 bus followed and then passed the 7-D bus in which Mr. Rodríguez Acosta was travelling.  It stopped and waited until the 7-D bus passed, whereupon the soldiers on board fired their weapons indiscriminately at the 7-D bus.  Mr. Rodríguez Acosta was struck by one of the bullets and died at 8:00 p.m. that day in Rosales Hospital.  An investigation is requested to establish who is responsible. 

 

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  A Government note of September 29, 1993 on six cases (9757, 10005, 10178, 10184, 10292, and 10296) asked that the cases be filed because the complaints had never been brought to trial, so the Government alleges that "As we can see, the petitioners did not even file a complaint with the courts to investigate the cases, nor did they appeal for an internal investigation.  For these reasons, the Government of El Salvador respectfully requests that these cases be filed."

 

 

                                                  Case Nº 10,296 

                                       José Edilberto Espinoza Abrego

 

          Facts:

 

          Mr. José Edilberto Espinoza Abrego, age 29 and single, was seized on January 21, 1988, at 1:00 p.m., two blocks from his place of work on the main street in the `22 de abril' neighborhood of San Salvador.  Mr. Espinoza Abrego was taken by three unidentified persons, who put him in a white vehicle that had no license plates.  They took him in the direction of the highway that runs from the Ilopango airport by way of the Boulevard del Ejército.  Mr. Espinoza had been in Mariona Prison from March 26, 1985 to March 6, 1987 for political reasons.  On April 8, 1988, Mr. Espinoza's relatives learned from a radio news report that a body had been found at kilometer 11 on the road to the Apulo lake resort.  The body showed signs of torture.  They immediately went to the site where the body had been found.  Someone who lived in the area told them he had found the body on a hillside and gave them a description that fit Mr. Espinoza.  The relatives asked him if he could identify the person he found from a photograph.  When they showed him a photograph of Mr. Espinosa, he said that yes, that was the body that he had buried.  An investigation is being requested.

 

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  A Government note of September 29, 1993 on six cases (9757, 10005, 10178, 10184, 10292, 10296) asked that the cases be filed because the complaints had never been brought to trial, so the Government alleges that "As we can see, the petitioners did not even file a complaint with the courts to investigate the cases, nor did they appeal for an internal investigation.  For these reasons, the Government of El Salvador respectfully requests that these cases be filed."

 

 

                                                  Case Nº 10,298 

                                             Eliodoro Pineda Amaya

                                         José Hernán Benitez Aguilar

                                             Cecilio Aguilar Vásquez

 

 

          Facts:

 

          At approximately 9;00 a.m. on November 12, 1988, a large group of soldiers surrounded the house of José Hernán Benitez Aguilar, 18, and took him to the mountain where they were already holding Eliodoro Pineda Amaya, 24, and Cecilio Aguilar Vásquez, 17.  There the three young men were beaten and interrogated.  At approximately 1:00 p.m. they were taken away for the hermitage at Piedra Luna Village, Loma El Chile district, the Yamabal jurisdiction in the department of Morazán.  At around 6:00 p.m. that same day, shots and bursts of heavy caliber fire were heard.  When the relatives approached, they found the bodies of the three young men about a block away from the Piedra Luna hermitage.  All three had been brutally  tortured.  An investigation is requested.

 

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on July 6, 1993.  A Government note of September 29, 1993, reports that criminal proceedings were begun pursuant to law on November 15, 1988, that they are in the probable-cause-proceeding stage (instrucción), without any of the accused persons being present, and that testimony has been received implicating soldiers in the Morazán zone. 

 

 

                                                  Case Nº 10,327 

                                        Marcos Aurelio Pérez Guzmán

                                          Patrocinio Aguilar Sánchez

 

 

          Facts:

 

          At approximately 12:30 a.m. on July 25, 1988, three heavily armed men in olive green uniforms appeared at the home of Marcos Aurelio Pérez Guzmán, 19.  They executed him extrajudicially, as well as Patrocinio Aguilar Sánchez, his 69-year old grandfather, when the latter tried to run for help.  After committing this double murder, the three individuals headed off in the direction of the Cucumacayán power plant, where Sonsonate Military Post No. 6 is located.  A thorough investigation is requested.

 

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 18, 1993.  In a note of September 29, 1993, the Government requested filing the case, which has been on the docket of the Second Criminal Court of Sansonate since July 1988.  The case is in the probable-cause-proceeding stage (instrucción), and no one has been accused of being responsible for the crime."

 

 

 

                                                  Case Nº 10,332 

                                           José René Vásquez Flores

 

          Facts:

 

          At approximately 8:00 a.m. on Tuesday, November 22, 1988, Mr. José René Vásquez Flores, 22, was seized at his home in the San Carlos district, El Amate, department of San Miguel, by uniformed soldiers of the National Army.  They took him away to some unknown destination and thus far his whereabouts is unknown.

 

          Information on the case was again requested, and the Government was reminded of the provisions of Article 42, on August 18, 1993.  In a note of 30 August 1993 on five cases (9717, 10332, 10355, 10360 and 10468), the Government said it was requesting that these cases be filed, since these persons are still missing according to information form the CICR.  The relevant part of the note said:  "The Government of El Salvador has done everything possible to locate the persons mentioned, but so far all its efforts have been fruitless.  Moreover, according to the confidential final report from the CICR to the Salvadoran Government, the persons mentioned are among the group that its investigative office have not been able to locate.  Accordingly, since all measures possible have been taken by the Salvadoran Government to locate these persons, and no progress has been made in that endeavor, we consider that these cases must be considered closed because there is nothing further that can be done to determine the whereabouts of these persons."

 

                                                  Case Nº 10,334 

                                          Mario Antonio Flores Cubas

 

          Facts:

 

          On February 3, 1989, the body of Mario Antonio Flores Cubas was found with M-16 bullet wounds to the head.  The body was discovered in the Suncita district of Acajutia jurisdiction, in the department of Sonsonate.  It showed obvious signs of torture and abuse.

 

                                                  Case Nº 10,335 

                                              José Guillermo Lainez

 

          Facts:

 

          In the vicinity of the San Jacinto cable car in San Salvador, Mr. José Guillermo Lainez, 16, was recruited into the military service on April 1, 1988, by soldiers from the First Infantry Brigade.  On May 22 of that year his sister went to visit him at the barracks of the First Infantry Brigade but was told that her brother had deserted on May 20.  On May 26, soldiers from the First Brigade went to Mr. Lainez's home to search it.  The whereabouts of Mr. Lainez is unknown to this day.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 4, 1993.  A Government note of September 20, 1993 on four cases (10175, 10226, 10335, and 10354) asked that the cases be filed because "The Ministry of Foreign Affairs, in order to cooperate with the IACHR, published several announcements in the newspapers in our country, asking that the persons involved or some member of their family come forward and provide further information, but although the announcements were repeated several times, no one came forward."  Four copies of newspaper announcements were attached asking that the missing persons mentioned in the petitions "report to or communicate with this Government Department, so that information submitted to the OAS IACHR can be updated."

 

 

                                                  Case Nº 10,354 

                                                Efraín Ramírez Díaz

 

 

          Facts:

 

          Mr. Efraín Ramírez Díaz was seized near his home in the San Antonio district, La Junta, Metapán jurisdiction, on October 28, 1988, by individuals who took him away for some unknown destination.  A petition of habeas corpus was filed with the Supreme Court but without result.

 

          The Government was again asked for information, and was reminded of the provisions of Article 42, on August 4, 1993.  A Government note of September 20, 1993 on four cases (10175, 10226, 10335, and 10354) asked that the cases be filed because "The Ministry of Foreign Affairs, in order to cooperate with the IACHR, published several announcements in the newspapers in our country, asking that the persons involved or some member of their family come forward and provide further information, but although the announcements were repeated several times, no one came forward."  Four copies of newspaper announcements were attached asking that the missing persons mentioned in the petitions "report to or communicate with this Government Department, so that information submitted to the OAS IACHR can be updated."

 

 

 

 

                                                  Case Nº 10,355 

                                               Santos Adán Méndez

                                                María Cristina Mejía

                                                 Herculano Méndez

                                                   Rufina Figueroa

 

          Facts:

 

          On October 28, 1988, starting at approximately 8:00 p.m., some 70 soldiers searched the homes of Santos Adán Méndez, María Cristina Mejía, Herculano Méndez and Rufina Figueroa and took them away for some unknown destination.  Their captors were wearing olive green uniforms with the insignia covered.  The victims' whereabouts is unknown.

 

          Information on the case was again requested, and the Government was reminded of the provisions of Article 42, on August 18, 1993.  In a note of 30 August 1993 on five cases (9717, 10332, 10355, 10360 and 10468), the Government said it was requesting that these cases be filed, since these persons are still missing according to information form the CICR.  The relevant part of the note said:  "The Government of El Salvador has done everything possible to locate the persons mentioned, but so far all its efforts have been fruitless.  Moreover, according to the confidential final report from the CICR to the Salvadoran Government, the persons mentioned are among the group that its investigative office have not been able to locate.  Accordingly, since all measures possible have been taken by the Salvadoran Government to locate these persons, and no progress has been made in that endeavor, we consider that these cases must be considered closed because there is nothing further that can be done to determine the whereabouts of these persons."

 

 

                                                  Case Nº 10,360 

                                                   José Luis López

 

          Facts:

 

          Mr. José Luis López, 18, was recruited by members of the FAS, on January 1, 1989, at approximately 4:00 p.m., in the Dolores district of Apulo.  When the young man's mother went to the military post to search for him, they acknowledged that he was there but did not allow her to speak with him.  On January 6 of that year, she returned to the FAS Barracks and insisted on seeing her son.  This time, however, they told her that her son was no longer in the military service and that they had authorized him to return home.  Nevertheless, the young man is still missing.

 

          Information on the case was again requested, and the Government was reminded of the provisions of Article 42, on August 18, 1993.  In a note of 30 August 1993 on five cases (9717, 10332, 10355, 10360 and 10468), the Government said it was requesting that these cases be filed, since these persons are still missing according to information form the CICR.  The relevant part of the note said:  "The Government of El Salvador has done everything possible to locate the persons mentioned, but so far all its efforts have been fruitless.  Moreover, according to the confidential final report from the CICR to the Salvadoran Government, the persons mentioned are among the group that its investigative office have not been able to locate.  Accordingly, since all measures possible have been taken by the Salvadoran Government to locate these persons, and no progress has been made in that endeavor, we consider that these cases must be considered closed because there is nothing further that can be done to determine the whereabouts of these persons."

 

 

                                                  Case Nº 10,361 

                                                   Bartolo Cornejo

 

          Facts:

 

          On January 22, 1989, at around 15:00 hours, uniformed personel of the Marine Batallion (BIM) took Mr. Bartolo Cornejo prisoner, at the home of Mr. Santana Chávez Ayala, located in Cantón Zamorán, in the jurisdiction of Jiquilisco, Department of Usulután.  The marines took Mr. Cornejo to an vacant house in the El Zamorán Canton, where there was another prisoner, a resident of the Las Arañas Canton, who was a witness when Mr. Cornejo was brought into the house.  He could hear when Mr. Cornejo was beaten and accused of being a guerrilla, and when they asked him to turn over a gun to them.  On January 23, at 15:30 hours, the captors led the prisoners to a detour between the towns of El Zamorán and San Marcos Lempa.  There they were separated, and Mr. Cornejo was taken toward a river called El Espino, near the detour.  He has been missing ever since.

 

          On August 11, 1993, the Government was again asked for information, and was reminded about implementation of Article 42.  No reply has been received.

 

                                                  Case Nº 10,365 

                                                Juan Ramírez Ortiz

 

          Facts:

 

          At approximately 3:00 p.m. on January 22, 1989, uniformed troops from the Marine Infantry Batallion (BIM) seized Mr. Juan Ramírez Ortiz, 75, as he was working in a corn field; they later killed him and buried him near Hacienda Normandia, known also as La Granadilla.  It was not until November 5 that the body was discovered.  His abductors had buried him before his body could be examined by any authority.  An investigation is requested.

 

          The Government replied on October 30, 1992 advising that the Mr. Ramírez Ortiz had been detained and released and requesting that the case be filed.  The government was again asked for information on the case on February 18, 1993, because its reply did not jibe with the statement of facts in the complaint.  The government was again asked for information, and was reminded of the provisions of Article 42, of August 11, 1993.  The Government replied in a note of September 9, 1993, stating that it had already sent its reply and requesting that the case be filed.

 

                                                  Case Nº 10,366 

               Juan Antonio Bermúdez Anaya, Pedro Antonio Bermúdez Anaya

 

          Facts:

 

          At approximately 9:30 p.m. on August 9, 1988, soldiers from the Long-range Reconnaissance Patrols seized the brothers Juan Antonio Bermúdez Anaya (29) and Pedro Antonio Bermúdez Anaya (23) at the home of María Guadalupe Granados in the San Nicolás district of Las Cañas, Apopa jurisdiction.  After searching the house, the soldiers told the family that they could pick the brothers up the next day at the First Infantry Brigade Garrison, commonly known as the San Carlos Garrison in San Salvador.

 

          The next day the bodies of the Bermúdez Anaya brothers were found in a place known as Río Las Cañas, in the San Nicolás district.  They had been shot.

 

          Information on the case was again requested, and the Government was reminded of the provisions of Article 42, on August 18, 1993.  No reply has been received from the Government.

 

                                                  Case Nº 10,367 

                                    María Rosa Tejada, Yolanda Pineda

                                 Sonia Guardado, Concepción Guardado

                                          Esperanza N. (no surname)

 

          Facts:

 

          At approximately noon on January 21, 1988, 8 helicopters gunships and a small "02" plane of the Salvadoran Air Force landed near the villages of Ozevera, Simarrón, La Montañita, Agua Fría and Encumbrado, in the jurisdiction of Agua Caliente, department of Chalatenango.  They machine-gunned and fired rockets at the people's homes.  The soldiers captured, raped and arbitrarily executed:  María Rosa Tejada, age 18; Yolanda Pineda, age 15; Sonia Guardado, age 12, Concepción Guardado and Esperanza N. (surname unknown).  The bodies were buried in the village of La Quezera only after the FAS soldiers in the area gave the families permission to do so.  An investigation into this multiple crime is requested.

 

          Information on the case was again requested, and the Government was reminded of the provisions of Article 42, on August 18, 1993.  The Government sent a note on September 9, 1993, stating that it had already sent its reply and requesting that the case be filed.  The reply referred to events different from those described in the petition.

 

 

                                                  Case Nº 10,368 

                                             Calixto Bonilla Palacios

 

          Facts:

 

          At approximately 8:00 a.m. on May 6, 1988, uniformed soldiers with Ponce Batallion appeared at the home of Mr. Calixto Bonilla Palacios, age 68.  They told his common-law wife, Antonia Luisa Zelaya, to leave the house.  She was guarded by two soldiers.  Corporal Rabit Mejía then entered the house and a shot was heard.  He then left with a pistol in his hand, saying that Mr. Bonilla Palacios had killed himself.  Mr. Bonilla Palacios had been taken into custody on March 24, 1988, on charges of collaborating with the guerrillas.

 

          The Government was asked for information on the case on February 18, 1993, because its reply did not coincide with the statement of facts in the petition.  The Government was again asked for information on August 11, 1993 and was reminded of the provisions of Article 42.  No reply has been received.

 

 

                                                  Case Nº 10,369 

                                            Natividad López Fuentes

 

          Facts:

 

          On October 28, 1988, Army troops from the Third Infantry Brigade Garrison in San Miguel engaged elements of the Farabundo Martí Front (FMLN).  The clash lasted approximately 15 minutes.  When the military engagement occurred, Mr. Natividad López Fuentes was with his common-law wife and five-year-old son cutting beans.  When they heard the shots, they hid.  But when the firing stopped, the soldiers climbed up to the place where Mr. López Fuentes and his family were hiding.  Without saying a word, they shot him dead.  The soldiers claimed he was a guerrilla.  An investigation is requested.

 

          The Government was again asked for information on July 21, 1993 and was reminded of the provisions of Article 42.  No reply has been received.

 

                                                  Case Nº 10,468

                                          Armando Caballero Amaya

 

          Facts:

 

          Mr. Armando Caballero Amaya was detained on September 25, 1989, at approximately 4:40 p.m., at his produce stand on the sidewalk on Primera Calle Poniente, between the first and third avenues north in San Salvador.  Two men in civilian clothing put him in a light blue minibus with tinted windows.  They did not explain why he was being arrested.  In the presence of his daughter, he was taken away for some unknown destination.  Despite all efforts, his whereabouts is unknown.

 

          Information on the case was again requested, and the Government was reminded of the provisions of Article 42, on August 18, 1993.  In a note of 30 August 1993 on five cases (9717, 10332, 10355, 10360 and 10468), the Government said it was requesting that these cases be filed, since these persons are still missing according to information form the CICR.  The relevant part of the note said:  "The Government of El Salvador has done everything possible to locate the persons mentioned, but so far all its efforts have been fruitless.  Moreover, according to the confidential final report from the CICR to the Salvadoran Government, the persons mentioned are among the group that its investigative office have not been able to locate.  Accordingly, since all measures possible have been taken by the Salvadoran Government to locate these persons, and no progress has been made in that endeavor, we consider that these cases must be considered closed because there is nothing further that can be done to determine the whereabouts of these persons."

 

                                                  Case Nº 10,502

                                             Pablo Henriquez Torres

 

          Facts:

 

          On the afternoon of December 15, 1989, agents with the Soyapango National Police violently seized Mr. Pablo Henriquez Torres, age 40, as he was headed for the field to take in a crop.  Mr. Henriquez Torres was taken to the San Salvador Municipal Police Headquarters, where he died three days later, on December 18, 1989.  When the body was exhumed on January 9, 1990, the Second Justice of the Peace of San Salvador concluded that Mr. Henriquez Torres had died as a result of a "cranial-encephalic trauma".  The police contend that he died accidentally, claiming that he was drunk.  Relatives deny this version, however, and are requesting an investigation.

 

          The Government was again asked for information on August 13, 1992 and was reminded of the provisions of Article 42.  No reply has been received.

 

 

                                                  Case Nº 10,550 

                                            Roberto Vásquez Merlos

 

          Facts:

 

          Mr. Roberto Vásquez Merlos, age 50, President of the "El Carmen" Cooperative in the El Despoblado district, jurisdiction of Zacatecoluca, died, the victim of indiscriminate shooting by troops from the Armed Force Engineers Military Post (DMIFA) on April 20, 1990.  The Armed Forces described the victim of this murder as "a guerrilla who died in an engagement."  Soldiers carried the body to the patio of his home.  They then entered the house and searched everyone there, insulting them and accusing them of belonging to the FMLN.

 

          The Government was again asked for information on July 21, 1993 and was reminded of the provisions of Article 42.  The Government replied in a note of September 9, 1993, stating that it had already sent its response and requesting that the case be filed.  The Government's response presents a version of the events different from that in the petition, but does not give new information about investigations.

 

 

                                                  Case Nº 10,642 

                                             José Luis Castro Trejos

 

          Facts:

 

          Mr. José Luis Castro Trejos, age 38, was seized and then murdered on June 3, 1990, by uniformed soldiers of the Marine Infantry Batallion (BIM) under the command of Sergeant Second Class Edgar Chacón.  It is not known whether the latter reported this to his superiors.  Mr. Castro Trejos' common-law wife made a statement to the effect that she saw military troops take Mr. Luis Castro Trejos into custody.  An investigation is requested.

 

          The Government was again asked for information on July 21, 1993 and was reminded of the provisions of Article 42.  The Government replied in a note of September 22, requesting that the case be filed.  Its reply did not contain any information of substance on the conduct of investigations or trials regarding the disappearance and death of Mr. Castro.

 

                                                  Case Nº 10,773 

                                           Victoria Martínez Herrera

 

          Facts:

 

          At approximately 10:00 a.m. on November 11, 1989, Victoria Martínez Herrera, age 13, was detained near the Metapán market by a member of the Salvadoran Treasury Police in civilian dress.  He told her to accompany him and said that he would protect her from the soldiers who were picking up people in the area.  After blindfolding and tying her thumbs, he threw her into a car and took her to the headquarters of the Treasury Police, where she was questioned by 8 members of that institution.  She was then transferred to a cell and kept there for several days, bound and blindfolded.  She was then transferred to a dark cell, where she remained for 22 days.  During that time, a man entered her cell, chained her and raped her.  Several days later she was raped again and told she would be killed if she reported him.  In February 1990, the child Victoria Martínez Herrera was taken to the International Red Cross.  On May 14, 1990, she was brought before a judge in San Salvador and released on the 24th of that same month.

 

          The Government was again asked for information on August 13, 1992 and was reminded of the provisions of Article 42.  No reply has been received on the events described in the petition.

 

 

                                                  Case Nº 10,864 

                                               Carlos Aguilar García

                                        Norma Elizabeth Flores Portillo

                                      Carlos Enrique Escobar Figueroa

                                           Evelyn Jeannete Alvarado

                                            María Cristina Alvarenga

                                              Crisóstomo Alvarenga

 

          Facts:

 

          On March 20, 1991, the above-named persons, members of the Committee of Dismissed and Unemployed of El Salvador (CODYDES), were painting anti-government propaganda in a San Salvador neighborhood when they were unlawfully arrested by troops of the First Infantry Brigade. They were then taken to the First Infantry Brigade headquarters and then turned over to the Treasury Police.  All were tortured and accused of being guerrillas.  Since there was no evidence against them, the judge released them on March 22 of that year.  An investigation of the arbitrary detention and mistreatment of these people is requested.

 

          The Government was again asked for information on August 13, 1992 and was reminded of the provisions of Article 42. The Government sent a note of September 9, 1993, stating that it had already submitted its response and requesting that the case be filed.  That response states that these people were released, but does not refer to the contents of the petition.

 

                                                  Case Nº 10,910 

                                            Francisco Cruz Menjivar

 

          Facts:

 

          Mr. Francisco Cruz Menjivar, age 30, was murdered by soldiers of Atlacatl Batallion in Nueva Trinidad, department of Chalatenango, on March 30, 1991.  At around 6:00 a.m. that day, Mr. Cruz Menjivar went to bathe in a tank, the town's only source of water.  Shots were heard and his body was found at around 8:00 a.m. along the stretch that leads from the tank to the homes in the community.  An investigation to determine who is responsible for his death is being requested.

 

          The request was repeated to the Government on July 13, 1992 and it was reminded of the provisions of Article 42. The Government sent a note on September 9, 1993, requesting that the case be filed because it had already submitted its response earlier.  That response contains a version of the events different from that in the petition, but does not furnish new information about investigations.

 

 

                                                  Case Nº 10,919 

                              Ambrosio Amaya, Rumaldo Jurado Argueta,

                                         Bernabé Fuentes Hernández

 

          Facts:

 

          The above-named individuals were seized on June 6, brutally tortured and accused of being guerrillas.  Soldiers from the DM-4 and troops from the Recondor and Commandos Battalions of the Third Infantry Brigade have been named as the individuals responsible.  An investigation into these facts is requested.

 

          The Government was again asked for information on July 13, 1992 and was reminded of the provisions of Article 42.  No reply has been received.

 

                                                  Case Nº 11,138 

                                           Nazario de Jesús Gracias

 

          Facts:

 

          On March 2, 1992, Mr. Nazario de Jesús Gracias, age 34 and the night watchman at the Federation of Independent Labor Unions of El Salvador (FEASIES), was brutally murdered.  Mr. Gracias' body was found in one of the interior rooms of the FEASIES.  There were several cuts on the body, but a slash on his neck, approximately 12 centimeters in length, caused a massive hemorrhage and was the cause of death.  On October 21, 1991, Mr. Gracias was seized by troops from the First Infantry Brigade, who accused him of belonging to the FMLN and of possessing arms.  An investigation is requested.

 

          The Government was again asked for information on July 13, 1992 and was reminded of the provisions of Article 42.  In a note of September 30, 1993, the Government advised that the Tenth Justice of the Peace of San Salvador, the Commission on Criminal Acts (Comisión de Hechos Delictivos) and ONUSAL have investigated the facts of the case, but "the investigation has not found evidence of any kind to determine the person or persons responsible for the death of Mr. Gracias."  Accordingly, it requests that the case be filed.

 

          CONSIDERATIONS

 

          a.       The Commission considers it to be of primary importance to cite first of all the case law of the Inter-American Court of Human Rights on government responsibility remaining unchanged regardless of any political changes that take place in the society, a position that is fully applicable to the Salvadoran situation:

 

          According to the principle of the continuity of the State in international law, responsible exists both independently of changes of government over a period time and continuously from the time of the act that creates the responsibility to the time when the act is declared illegal.  The foregoing is also valid in the area of human rights although, from an ethical or political point of view, the attitude of the new government may be much more respectful of those rights than that of the government in power when the violations occurred.[26]

 

          b.       It is also important to recall that Article 1.1 of the American Convention on Human Rights provides that "The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic statues, birth, or any other social condition."

 

          c.       In this regard, the Commission has taken into consideration the statement of the Inter-American Court of Human Rights that, with regard to the duties of States such as El Salvador that have ratified the American Convention on Human Rights, "Article 1(1) is essential in determining whether a violation of the human rights recognized by the Convention can be imputed to a State Party.  In effect, that Article charges the State Parties responsible with the fundamental duty to respect and guarantee the rights recognized in the Convention.  Any impairment of those rights which can be attributed under the rules of international law to the action or omission of any public authority constitutes an act imputable to the State, which assumed responsibility in the terms provided by the Convention."[27]

 

          d.       And the Court adds, specifically referring to the State's obligations on prevention and investigations that "The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment, and to ensure victim adequate compensation. (...)  The State is obligated to investigate every situation involving a violation of the rights protected by this Convention.  If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has not failed to comply with its duty to ensure the free and full exercise of those rights to the persons under its jurisdiction. The same is true when the State allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the Convention.(...) In certain circumstances, it may be difficult to investigate acts that violate an individual's rights.  The duty to investigate, like the duty to prevent, is not breached merely because the investigation does not produce a satisfactory result.  Nevertheless, it must be undertaken in a serious manner and not as a mere formality preordained to be ineffective.  An investigation must have an objective and be assumed by the State as its own legal duty, not as a step taken by private interests that depends upon the initiative of the victim or his family or upon their offer of proof, without an effective search for the truth by the government.  This is true regardless of what agent is eventually found responsible for the violation.  Where the acts of private parties that violate the Convention are not seriously investigated, those parties are aided in a sense by the government, thereby making the State responsible on the international plane.."[28]

 

          e.       In view of this situation, the Inter-American Commission on Human Rights, which has the duty to bring to a conclusion the processing of situations brought to it for consideration that involve a violation of the fundamental rights of persons, notified the Salvadoran Government, in each of these cases, of the possible application of the presumption of truth pursuant to Article 42 of the IACHR Regulations, which reads:

 

 

          The facts reported in the petition whose pertinent parts have been transmitted to the government of the State in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 34 paragraph 5, the government has not provided the pertinent information, as long as other evidence does not lead to a different conclusion."

 

 

          f.       The reply received from the Salvador authorities to the last request for information pursuant to Article 42 of the Regulations does not, in the judgment of the Inter-American Commission on Human Rights, constitute progress in the investigations of these situations, which were reported some time back, and does not provide convincing information or proof that would support the conclusion that State is not responsible, in view of its duty to investigate, punish and make compensation for behavior, attributable to its agents, that violate the rights set forth in the American Convention.

 

 

          g.       In fact, the replies from the Salvadoran Government do not contain information on any positive steps or legal action taken by the responsible officials to investigate the commission of punishable acts -- such the force disappearance of persons -- nor the results of such acts.  This is the duty of the State, according to the American Convention, and has been reiterated by the Inter-American Court of Human Rights, in the following terms:

 

          The duty to investigate facts of this type continues as long as there is uncertainty about the fate of the person who has disappeared.  Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.[29]      

 

          h.       Citing the case law of the Inter-American Court on this issue serves as a corollary of the foregoing assessments.  In fact, the Court pointed out that "...States Parties have an obligation to provide effective judicial remedies to victims of human rights violations (Article 25), remedies that must be substantiated in accordance with the rules of due process of law (Article 8(1)), all in keeping with the general obligation of such States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction."[30]

 

          i.        It may, therefore, be concluded from the content of the government's replies and its request that all these cases be filed, recalling the Court's ruling that "Thus, in principle, any violation of rights recognized by the Convention carried out by an act of public authority or by persons who use their position of authority is imputable to the State.  However, this does not define all the circumstances in which a State is obligated to prevent, investigate and punish human rights violations, nor all the cases in which the State might be found responsible for an infringement of those rights.  An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself, but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention."[31]

 

          j.        Finally, the acts that gave rise to the petition are not, by their nature, capable of being resolved through a friendly settlement procedure.  Furthermore, neither the Government nor the petitioners asked the Commission to apply that procedure, which is provided for in Article 48.i.f. of the Convention and Article 45 of the IACHR Regulations.

 

 

          CONCLUSIONS

 

          a.       Therefore, given that the Government in its responses has not provided the Commission with information which would rebut the facts reported in the complaint and taking into account the complaints lodged with the Commission and the absence of new information, the Commission has concluded that the facts are true and as a result, finds that the State of El Salvador is responsible for the violations mentioned above.

 

          b.       Consequently, the Commission is making the following recommendations, trusting that the Government of El Salvador will implement them satisfactorily, based on Article 50.3 of the American Convention on Human Rights and Article 47 of the Commission's Regulations:

 

          1.       That it conduct or reopen, as the case may be, the pertinent criminal and administrative proceedings and conduct a rapid, impartial and thorough investigation into the events reported, to fully establish the circumstances under which they occurred, identify the guilty parties and bring them to trial so that they may receive the punishment that such serious conduct warrants.

 

          2.       That it make the necessary reparations for the above-described human rights violations and pay fair compensation to the injured parties or their next-of-kin, as the case may be.

 

          3.       That it adopt the necessary measures to prevent a recurrence of similar acts in the future, taking into account, in particular, the Truth Commission's recommendations regarding the administration of justice.

 

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[25]  See Chapter II.1 of this Report and the Annual Reports of the Inter-American Commission on Human Rights to the General Assembly of the OAS, 1983 to 1993.

[26]  Velásquez Rodríguez Case, Judgment of July 29, 1988, par. 184.

[27]  Velásquez Rodríguez Case, Judgment of July 29, 1988, par. 164.

[28]  Velásquez Rodríguez Case, Judgment of July 29, 1988,, pars. 174 to 177.

[29]  Velásqiz Rodríguez Case, Judgment of July 29, 1988, par. 181.

[30]  Velásquez Rodríguez Case, Preliminary Objections, Judgment of June 26, 1987, par. 91.

[31]  Velásquez Rodríguez Case, Judgment of July 269 1987, par. 172.