February 1, 1994
December 17, 1990, the Inter-American Commission on Human Rights
received a petition based on the following:
On May 14, 1990, a soldier raped María Dolores Rivas
Quintanilla, age 7, and left at the scene of the event his
handkerchief bearing the name of his Military Unit, the Atonal Quick
Reaction Infantry Battalion.
The rape was committed when the young girl was at her home in
the village of Gualchua, in the Moropala canton of the department of
San Miguel, El Salvador.
The child's mother, Ana María Quintanilla, said that she left
home early on the morning of May 14, leaving her two daughters (ages 7
and 5) playing on the patio. A
solder approached, asked the girls for water, and followed them when
they entered the house. There he attacked the little girl. When she saw what was happening, the victim's little sister,
Evelin Yamlit Rivas Quintanilla, age 5, ran from the house to tell a
neighbor, who took no action.
When the mother of the little girls returned home and learned
what had happened, she spoke with a group of soldiers who were one
block from her home and asked the lieutenant to call all the soldiers
together so that her little girl could identify her assailant.
The little girl, who could not stop crying, was unable to
identify any of the men.
Mrs. Quintanilla reported the crime to the canton commandant
who is in charge of that company, Boanerges N., who said he was
willing to jail the individual responsible and give her money for any
medicines that might be needed.
Based on a description of the assailant that the young girl
gave her mother, the mother filed the corresponding complaint with the
Commandant and the next day with the First Court of Usulután.
There the judge refused to take the case, telling her
"These things happen, and not just here but elsewhere as
That same day, May 15, the Commandant went back to Mrs.
Quintanilla's home and told her that the man who had raped her little
girl was a guerrilla. The
young girl bled for four days and it was not until June 21st that she
could be taken to a gynecologist in San Salvador.
It was the physician's finding that the child had "a
broken and scarred hymen and an enlarged vaginal opening; the
diagnosis was that she had been sexually violated."
January 16, 1991, the Commission instituted the processing of this case
and asked the Government of El Salvador to supply the pertinent
information on the facts reported in the communication as well as any
other information of the case history and information to enable the
Commission to determine whether the remedies under domestic law had been
exhausted. The Commission gave the Government 90 days in which to
the seriousness of the facts denounced, the Government of El Salvador
did not reply. By note of
January 28, 1992, the Commission repeated its earlier request to the
Government of El Salvador that it supply information, warning it of the
possible application of Article 42 of the Regulations if no reply was
sent within 30 days.
August 18, 1992, the Commission repeated yet again its request that the
Government of El Salvador supply information on this case, and again
warned of the possible application of Article 42 of its Regulations.
the Commission sent the Government a detailed list of the cases now
being processed that required an urgent response on the latter's part
-one of those cases being the present case- thus far no communication
has been received from that Government.
October 5, 1993, the Inter-American Commission on Human Rights, sitting
at its 84th Regular Meeting considered this case and issued Report No.
18/93, 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 admissibility requirements stipulated in
the American Convention on Human Rights and in the Commission's
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.
regard to the Commission's competence in this case:
Commission is competent in the instant case because it concerns
violations of rights recognized in the American Convention on Human
Rights, principally Article 5.1 on the right to have one's physical,
mental and moral integrity respected; Article 11 on the right to have
one's honor respected and one's dignity recognized; Article 19 on the
rights of the child, and Article 25 on the right to judicial protection,
as provided in Article 44 of that Convention, of which El Salvador is a
1.1 of the American Convention, which is binding for El Salvador, states
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 facts alleged by the petitioner.
Government's passive and indifferent attitude in a case involving such
cruelty and contempt for even the most elementary principles of human
dignity, indicates a willingness on the part of military and judicial
authorities to tolerate and cover up heinous crimes such as the one
denounced, attitudes even shared by the executive branch of government,
through which the case was transmitted to the Government of El Salvador.
this regard, the Inter-American Court of Human Rights has stated 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 the victim adequate compensation."
d. The Court goes on
to say that "The State is obligated to investigate every situation
involving a violation of the rights protected by the 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 failed to comply with its
obligation to ensure the free and full exercise of those rights to the
persons within 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."
e. The United
Nations Convention on the Rights of the Child -which El Salvador signed
on January 26, 1990 and then ratified on July 10 of that year, and is
thus a State Party- states the following:
Article 19.1. "State Parties shall take all appropriate legislative,
administrative, social and educational measures to protect the child
from all forms of physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, including sexual
Article 37: "State parties shall ensure that: (a) No child shall be
subjected to torture or other cruel, inhuman or degrading treatment or
Article 39. "State Parties shall take all appropriate measures to
promote physical and psychological recovery and social reintegration of
a child victim of: any form of neglect, exploitation, or abuse; torture
or any other form of cruel, inhuman or degrading treatment or
punishment; or armed conflicts. Such
recovery and re-integration shall take place in an environment which
fosters the health, peer-respect and dignity of the child."
f. Article 16 of the
Additional Protocol to the American Convention on Human Rights, the
"Protocol of San Salvador", stipulates that:
Every child, whatever his parentage, has the right to the
protection that his status as a minor requires from his family, society
and the State. Every child
has the right to grow under the protection and responsibility of his
parents; save in exceptional, judicially-recognized circumstances, a
child of young age ought not to be separated from his mother...
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
Regulations of the Commission and neither the Government nor the
petitioners have asked the Commission to apply that procedure.
the friendly settlement procedure does not apply, the Commission must
comply with the provisions of Article 50.1 of the Convention and issue
its opinion and conclusions on the matter put to it for consideration.
legal and statutory procedures established in the Convention and in the
Commission's Regulations have been exhausted, and more than the
prescribed time periods have been allowed.
the exhaustion of the remedies under domestic law:
the instant case, the petitioner has been unable to secure effective
protection from bodies having jurisdiction.
Hence, the remedies have been exhausted in accordance with
Article 46 of the Convention, as stated below.
to the petition filed with the Commission, the day after the events
occurred the mother of the small child filed a complaint with the
military authorities in the area and with the First Court of Usulután. These efforts produced no results; more importantly, however,
no investigations were instituted to track down the individual
responsible. Instead, the
mother was told in advance how pointless her efforts were.
petition states and the photographic evidence shows that the individual
who committed this crime left a handkerchief at the scene of the events
that identified him as a member of the Atonal Quick Reaction Infantry
Battalion; with evidence of that nature, the circumstances surrounding
his impunity become still more serious and leave the victim and her
family with no means to defend themselves against the abuses and
outrages committed by the authorities.
the exceptions made to the rule of exhaustion of internal remedies, the
Inter-American Court of Human Rights stated that "...if a person,
for a reason such as the one stated above [general fear in the legal
community] 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."
e. In that same
advisory opinion, the Court stated the following regarding the duty
incumbent upon the States: "Article 1 of the Convention provides
not only that the States Parties have an obligation to respect the
rights and freedoms recognized [t]herein, it also requires them to
ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms.
The Court has already had occasion to emphasize that this
provision imposes an affirmative duty on the States.
It is also important to note that the obligation to ensure
requires the state to take all necessary measures to remove any
impediments which might exist that would prevent individuals from
enjoying the rights the Convention guarantees.
Any state which tolerates circumstances or conditions that
prevent individuals from having recourse to the legal remedies designed
to protect their rights is consequently in violation of Article 1(1) of
f. It is patently
obvious that in the instant case the mother of the little girl was not
obliged to exhaust remedies that were preordained to produce no result;
more to the point, she was relieved of that obligation since the State
clearly had failed to discharge its duty to guarantee the most
elementary rights and attempt to right the wrong and punish those
regard to noncompliance with Report 18/93 of October 1993
The three-month deadline given the Government of El Salvador has
elapsed and it has not complied with the Commission's recommendations in
Report No. 18/93, nor has it answered the communication of October 18,
1993, notifying it that the report was adopted and sending it a text
Inter-American Commission on Human Rights finds that the Government of
El Salvador is responsible for the facts denounced in the communication
of December 17, 1990, whereby on May 14 of that year, a soldier raped a
7-year old girl, María Dolores Rivas Quintanilla, leaving behind a
handkerchief bearing the name of his military unit, which was the Atonal
Quick Reaction Infantry Battalion.
The rape was committed while the little girl was in her home in
the village of Gualcuha, Moropala canton, in the department of San
Miguel, El Salvador.
Commission further finds that the Government of El Salvador has violated
the American Convention on Human Rights, specifically Article 5.1 on the
right to have one's physical, psychological and moral integrity
respected; Article 11 on the right to have one's honor and dignity
protected; Article 19 on the rights of children, and the Article 25 on
the right to judicial protection, in relation to Article 1.1 of that
Convention, of which El Salvador is a State Party.
makes the following recommendations to the Government of El Salvador:
a. That it conduct a
thorough, rapid and impartial investigation into the facts denounced to
identify those responsible for the rape of María Dolores Rivas
Quintanilla and for the subsequent cover-up of the crime; and that these
individuals be brought to justice so that they may receive the
punishments which such serious conduct demands.
b. That the
consequences of the violation of those rights be redressed and that the
injured party be paid a fair compensation.
c. To adopt the
measures necessary to avoid a recurrence of similar acts hereinafter,
particularly the following measures:
Require observance of the provisions of Article 19 on the rights
of children of the American Convention on Human Rights; Article 16 of
the Additional Protocol to the American Convention on Human Rights, the
"Protocol of San Salvador", and Articles 19.1, 37 and 39 of
the Convention on the Rights of the Child, all of which call for real
and effective protection of children's rights.
Enact laws that establish very clear and unequivocal punishments
for agents of the State who engage in conduct such as that described
here, with special punitive aggravating circumstances if the victim is a
Commission invites the Government to accept the jurisdiction of the
Inter-American Court of Human Rights in this case which is the subject
of this report.
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.