February 1, 1994
May 21, 1990, the Inter-American Commission on Human Rights received a
complaint based on the following:
On February 18, 1990, Elvis Gustavo Lovato Rivera was taken
into custody by soldiers from the Armed Forces Engineers Military
Garrison, on charges of being a guerrilla.
He was taken to the Santa María Ostuna local command post,
then to Section Two of the DMIFA, and still later to National Police
Headquarters at Zacatecoluca. At
all three places, he was tortured to force him to confess to being a
guerrilla. Some of the
tortures used were as follows: sitting
him, half-naked and wet, inside a metal tub and applying electric
shocks; standing on his body; beating him on the chest and abdomen;
putting a hood over his head (so that he could not breathe), and
burning him with lighted cigarettes.
Finally, on March 2, he was brought before the First Military
Tribunal of the First Instance and sent to the Mariona Prison that
same day. He was finally
released on March 7, 17 days after being seized and clearly more than
the 72 hours that, by law, an individual can be held in custody.
While at the DMIFA he was threatened that if he returned home
they would see to it that he disappeared; as a consequence, he has
been forced to leave his native town.
After his departure, his house was broken into, the front door
pulled off and the premises searched.
All his clothing was thrown into a vacant lot.
July 7, 1990, the Commission instituted the processing of this case by
requesting that the Government of El Salvador supply the pertinent
information on the facts reported in the communication, and any other
information to apprise the Commission of the case history and enable
it to determine whether the remedies under domestic law had been
exhausted. The Government was given ninety days in which to reply to the
those ninety days had expired, the Commission sent a note dated
November 9, 1990, where it again asked the Government of El Salvador
for information. This
time it set a 60-day deadline for the Government's reply.
on August 21, the petitioner sent a communication where he again asked
that an investigation be conducted into the facts reported in his
Commission sent another note to the Government of El Salvador, dated
March 2, 1992, again requesting information.
August 13, 1992, the Commission again asked the Salvadoran Government to
provide information on the investigation conducted into the present
case, warning of the possible application of Article 42 of the
Commission's Regulations if, by the end of 30 days, no reply on the
matter had been sent.
November 10, 1992, the Commission sent the Government of El Salvador a
list of the cases being processed and repeated its request for
information. However thus
far, no reply has been received.
October 5, 1993, the Inter-American Commission on Human Rights, sitting
at its 84th Regular Meeting considered this case and issued Report No.
17/93, pursuant to Article 50 of the American Convention on Human
Inter-American Commission on Human Rights resolved to send the Report,
on a confidential basis, to the Government of El Salvador, granting it
three months to implement the recommendations contained therein.
Government of El Salvador failed to answer the Commission's request of
October 18, 1993.
the question of admissibility:
petition satisfies the formal requirements for admissibility stipulated
in Article 46 of the American Convention on Human Rights and in articles
31 and 32 of the Commission's Regulations.
petition is not pending settlement in another procedure under an
international organization and is not substantially the same as one
previously studied by the Commission, as stipulated under Article 47 of
the Commission's competence in the instant case:
Commission is competent in the instant case because as it concerns
violations of rights recognized in the American Convention on Human
Rights, chiefly Article 5 on the right to humane treatment, Article 7 on
the right to personal liberty, Article 8 on the right to a fair trial,
and Article 22 on freedom of movement and residence, as provided in
Article 44 of that Convention, of which El Salvador is a State Party.
1.1 of the American Convention, which is binding upon El Salvador,
states the following:
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 status, birth, or any other social condition.
the content of the petition:
the fact that more than 3 years have passed since the events in question
occurred and despite the seriousness of the charges made, the Government
of El Salvador has not responded to the claims made by the petitioner
concerning the inquiry into the facts, trial of those responsible and
compensation to the victim for the unlawful deprivation of his freedom
and the torture to which he was subjected.
Nor has it responded to the matter of measures to protect the
victim from those who might carry out the threats to which he was
subjected during his detention.
other matters related to the processing of this case:
facts prompting the petition in this case are not such that they can be
resolved through recourse to the friendly settlement procedure provided
for in Article 48.1.f of the Convention and Article 45 of the
Commission's Regulations and neither the Government nor the petitioner
has requested that the Commission apply this procedure.
the friendly settlement procedure does not apply, the Commission must
carry out the provisions of Article 50.1 of the Convention and issue its
opinion and conclusions in the matter placed before it for
legal and statutory procedures established in the American Convention
and in the Commission's Regulations have been exhausted, and extensions
beyond the stipulated time periods have been allowed.
regard to exhaustion of the remedies under domestic law:
the instant case, it is obvious that petitioner has not been able to
secure effective protection from the courts.
Hence, in the instant case Article 46 paragraph a does not apply,
as will be explained below.
the year in which the events denounced occurred, was described in the
Commission's Annual Report for 1990-1991 as one of widespread
"irregularities surrounding the actual apprehension or arrest,
followed by various forms of mistreatment and torture while in police
custody. The maximum period of time one can be held without a court
order is 72 hours, unless a state of emergency exists when individual
guarantees are suspended, in which case the maximum allowable period is
15 days. According to the
reports provided to the Inter-American Commission, it is during that
period which self-incriminating confessions are extracted.
Often those confessions are the only grounds used to deny the
individual his freedom."
the Commission added that "During the period covered in this annual
report (1990), the Inter-American Commission on Human Rights has
received abundant information on the observance of the right to a fair
trial and due process of law in El Salvador and how those rights have
had a bearing on the exercise of the right to personal liberty.
According to the reports the Commission has received and
transmitted to the Government of El Salvador--though as of this writing
no response has been received--there are 192 people in El Salvador being
held for political reasons. The
irregularities reported in the case of these people involve a failure to
comply with legal formalities at the time they were arrested;
irregularities in the way the arrests were executed; mistreatment and
torture while in custody ..."
its part, concerning the requirement that the individual exhaust the
remedies under domestic law to have the facts denounced investigated, a
recent finding by the Inter-American Court of Human Rights is fully
relevant to the instant case. According
to the Court, "If a person, for a reason such as the one stated
above (a general fear in the legal community of a given country) is
prevented from availing himself of the domestic legal remedies necessary
to assert a right which the Convention guarantees, he cannot be required
to exhaust those remedies. The
State's obligation to guarantee such remedies is, of course, unaffected
by this conclusion."
Court concluded, in that opinion, "that if his indigence or a
general fear in the legal community to represent him prevents a
complainant before the Commission from invoking the domestic remedies
necessary to protect a right guaranteed by the Convention, he is not
required to exhaust such remedies."
the instant case, the victim was unable to avail himself of the remedies
established under the Salvadoran legal system, because of two factors:
one subjective and the other purely objective.
The subjective factor was a well-founded fear of filing a
complaint alleging the violation of rights of which he was victim; the
objective factor was a dysfunctional judiciary unable to resolve his
subjective aspect is obvious, because the victim had a well-founded fear
of reliving the experience which he had when he was arrested, torture,
interrogation, threates, was remanded to the First Military Court of
First Instance and finally imprisoned, a fear compounded by the fact
that he was even told not to return to his own home, which was broken
into and searched, and his clothes were thrown into a vacant lot.
for the inefficacy of the judiciary, its most serious problems have been
corruption and its lack of independence.
This situation was described at length both by the Inter-American
Commission on Human Rights and, more recently, in the Report of the
Truth Commission and successive reports of ONUSAL's Human Rights
the specific case of Mr. Elvis Gustavo Lovato Rivera, his well-founded
fear of filing a complaint and the questions raised about the
judiciary's independence and corruption, are grounds for allowing the
exceptions made in Article 46.2 of the American Convention on Human
Rights concerning the requirement to exhaust the remedies under domestic
law, stipulated in Article 46.1 of that Convention.
provided in the Inter-American Convention to Prevent and Punish Torture,
of which El Salvador is a signatory State, torture constitutes "an
offense against human dignity and a denial of the principles set forth
in the Charter of the Organization of American States and in the Charter
of the United Nations" (both of which El Salvador signed and
three years of repeated overtures from the Inter-American Commission
during which as many as three different deadlines have been given, the
Government of El Salvador has not replied to the facts denounced in this
transition period that El Salvador is experiencing demands utter
cooperation from its government to develop a genuine atmosphere of
national reconciliation and reconstruction.
regard to noncompliance with Report 17/93 of October 1993
The three-month deadline given to the Government of El Salvador
has elapsed and it has not complied with the Commission's
recommendations in Report No. 17/93, nor has it answered the
communication of October 18, 1993, notifying it that the report was
adopted and sending it a text thereof.
Inter-American Commission on Human Rights presumes as true the facts
reported in the communication received by the Commission on May 21,
1990, concerning Mr. Elvis Gustavo Lovato Rivera, who was arrested by
DMIFA soldiers and held in custody for 17 days, during which time he was
taken first to the Santa María Ostuna local command post, then to
Section Two of the DMIFA, and then finally to the Zacatecoluca National
Police Headquarters. He was
tortured at all three places. In
addition, at the DMIFA he was told that if he returned home he would be
made to disappear; consequently, he has been forced to move from his
Inter-American Commission on Human Rights, therefore, finds that the
Government of El Salvador is responsible for the facts reported in the
communication of May 21, 1990.
further finds that the Government of El Salvador has violated Article 5
on the right to humane treatment, Article 7 on the right to personal
liberty, Article 8 on the right to a fair trial, and Article 22 on
freedom of movement and residence of the American Convention on Human
Rights, in relation to Article 1.1 thereof, to which El Salvador is a
makes the following recommendations to the Government of El Salvador:
it conduct a thorough, rapid and impartial investigation of the facts
denounced to identify those responsible for the unlawful arrest and
subsequent torture of Mr. Elvis Gustavo Lovato Rivera and the soldiers
from the Armed Forces Engineers Military Garrison who threatened him,
and that it bring them to trial so that they may receive the punishments
that such egregious conduct demands.
it make reparations for the violations of the aforementioned rights and
pay the injured party a fair compensation.
it adopt the measures necessary to avoid the commission of similar acts
hereinafter, particularly the following:
That it demand respect for the rules contained in Art. 8.2 of the
American Convention on Human Rights, Article 10 of the Inter-American
Convention to Prevent and Punish Torture, and Article 12 of the
Constitution of El Salvador, which stipulate that any confession
obtained through torture shall be invalid; and that pursuant to the
recommendations of the Truth Commission, it enact the necessary legal
measures to deny any legal validity to confession obtained through
That it establish clear and precise legislation prohibiting
torture and other forms of cruel, inhuman or degrading punishment or
treatment, ascertain those responsible, punish them as appropriate, and
compensate the victims.
invites the Government of El Salvador to accept the jurisdiction of the
Inter-American Court of Human Rights in this specific case which is the
subject of this report.
invites the Government of El Salvador to ratify the Inter-American
Convention to Prevent and Punish Torture.
requests the Government of El Salvador to report the legislative,
judicial, administrative and other measures taken to guarantee absolute
prevention and punishment of the crime of torture.
publish this report pursuant to Article 48 of the Commission's
Regulations and Article 53.1 of the Convention, because the Government
of El Salvador did not adopt measures to correct the situation denounced
within the time period.