February 1, 1994
July 8, 1991, the Inter-American Commission on Human Rights
received a petition whose pertinent parts are summarized below:
On March 21, 1991, María Teresa Guardado, age 8, was
killed by a bullet fired from amid a group of soldiers attached
to the Chalatenango Military Post No. 1.
On March 19, 1991, the child María Teresa Guardado and
her mother, Mrs. María Leonor Orellana, were walking from
Chalatenango to their home in Guarjila.
According to testimony by Mrs. Orellana, at approximately
7:00 a.m. on that day there had been clashes between the Armed
Forces and the FMLN near Guarjila. The fighting resumed as she was on her way home again, so
that she, her daughter and a group of civilians took shelter in
a house in the Las Cañas district and waited until the firing
When they walked out into the street, they came upon
soldiers from the Chalatenango Military Post No. 1 who were
shouting military slogans and firing in all directions.
Despite the fact that a woman among the civilians told
the soldiers that they were civilians, at around 12:30 a shot
was fired that struck the child María Teresa Guardado in the
back and passed through her stomach.
Even though the civilians shouted at the soldiers that
they had wounded a little girl, the soldiers continued to fire
bullets as they walked along.
Mrs. Orellana took her little daughter to a house nearby
and waited for an ambulance until 3:30 p.m.
When the Salvadoran Red Cross ambulance finally arrived,
the soldiers fired on it, leaving a hole in the windshield.
This delayed the child's evacuation for approximately
another hour and a half.
When they finally reached the Chalatenango hospital, the
child was admitted for "a bullet wound in the right
abdomen, with a bleeding exit wound" and then operated on.
When the exploratory work was done, she was found to have
a number of internal injuries.
Mrs. Orellana was told that her daughter had come out of
the operation well and that she could speak with her briefly. But two days later, on March 21, 1991, María Teresa Guardado
died of what the medical report described as "a bullet
wound - generalized sepsis".
2. On July 15, 1991, the Commission began processing the case and asked the Government of El Salvador to supply relevant information on the material facts reported in the petition 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 90 days in which to reply.
November 20, 1991, the petitioner sent additional information,
and repeated his request that an investigation be conducted into
the facts denounced.
the 90-day deadline which the Commission had given the
Government, the Commission, it wrote by note of January 28, 1992,
and again asked the Government of El Salvador to provide it with
information, and this time set a deadline of 60 days for the
Government's reply. It also pointed out that if no reply was received, the
Commission would consider application of Article 42 of its
July 29, 1992, the petitioner sent more information, reporting
that the Chalatenango Court of First Instance, which was
conducting the investigation into the child's murder as Case
50-91, had decided to file the case, since "the case file
had been reviewed and it was impossible to establish who killed
the child María Teresa Guardado".
August 19, 1992, the Commission forwarded to the Government of El
Salvador the additional information sent by the petitioner and
asked that the Government take the necessary measures to supply
the Commission with all of the case reports within 60 days.
August 20, 1992, the Government of El Salvador sent a
communication concerning this case wherein it stated that the
child in question had died in a combat zone on a day when the
FMLN and the Salvadoran Army had several engagements; it reported
that the respective legal proceedings had been instituted and
conducted; that representatives of the Government's Human Rights
Commission had visited the Chalatenango Court of First Instance
to examine the proceedings; that Mrs. María Leonor Orellana, Mr.
Adalberto Menjivar and Mrs. María Moreno Menjivar de Paz gave
conflicting testimony, which made it impossible to establish
which group had fired the shots.
It also reported that on May 3 of that year, the Judge of
First Instance ordered that the proceedings be filed since the
Court was unable to establish who had injured the child; that the
Office of the Attorney General of the Republic had requested
elaboration of the statements made by witnesses Adalberto
Menjivar, who confirmed his earlier statement, and Mrs. Morena
Menjivar, who added that while there had been a clash on March
19, there were no longer any soldiers in the area at the time the
girl was struck, and she believed guerrillas had shot the girl;
that it had been very difficult to establish who the author of
the crime was, as the court had been unable to identify any one
individual, institution or armed group as the responsible party.
The Salvadoran Government was therefore requesting that
the Commission close the case, since after being "duly
processed the identity of the guilty party could not be
August 27, 1992, the Commission sent the petitioner the pertinent
parts of the Government's reply so that the petitioner might make
whatever observations he deemed necessary.
The petitioner was asked to convey his observations and
any additional information within 45 days.
October 13, 1992, the petitioner, in a communication addressed to
the Commission, requested a 60-day extension on the deadlines
established for presenting his observations and additional
extension was granted in a communication from the Commission sent
on October 19 of that year.
December 18, 1992, the Commission received from the petitioner
the latter's observations on the information supplied by the
Government of El Salvador. Summarizing
this submission, the petitioner stated that the Government of El
Salvador had not conducted an effective investigation and had
confined itself to the inadequate measures on record in the case
file; that in her testimony, María Leonor Orellana had blamed
soldiers from Military Post No.1 (DM1).
In her complaint to the Office of the Attorney General,
she had even asked that said military unit be investigated.
Although this was sufficient grounds to order such an
investigation, no effective inquiry was conducted before the case
was closed. The petitioner pointed out that the court with jurisdiction
over this case was only a few meters from DM1, so that it was
only logical to suppose that those who made statements were
subject to pressure; supposed members of the tribunal and an
individual who identified himself as a detective with the
National Police had pressured Mrs. María Leonor Orellana not to
make charges against members of the DM1.
The petitioner reiterated his request that an
investigation be conducted, focusing on the DM1, and that the
guilty parties be tried and punished and that the victim's
next-of-kin be compensated.
January 26, 1993, the Commission forwarded to the Government of
El Salvador the petitioner's observations on the information that
the Government had supplied on August 20, 1992, and gave it a
deadline of 30 days to take whatever measures it deemed
appropriate to supply the Commission with all the reports on this
February 22, 1993, the Commission again asked the Salvadoran
Government to provide whatever information it deemed appropriate
with regard to this case within 30 days.
March 2, 1993, the Commission received a communication from the
Government of El Salvador wherein it informed the Commission that
in the inquiry into this case conducted by the Chalatenango Court
of First Instance, the body of the minor María Teresa Guardado
was examined; it repeated the statements made by witnesses, which
it had described in its communication of August 20, 1992, as well
as the conclusion of the case, in other words, the fact that it
was impossible to identify any single individual, institution or
armed group as the guilty party because it was very difficult to
establish who the author of the crime was; therefore, it again
requested that the case be closed.
March 22, 1993, the Commission forwarded to the petitioner the
information conveyed by the Salvadoran Government and asked the
petitioner to send his observations and any new information on
the case within 45 days.
May 17, 1993, the Commission received the petitioner's
observations, which point out that in its reply of March 2, 1993,
the Salvadoran Government made no reference at all to the fact
that Mrs. María Leonor Orellana had directly named troops from
Military Post No.1; nor did the communication mention the fact
that although two years had passed, the unit involved in this
case had never been investigated.
July 20, 1993, the Commission received another communication from
the petitioner reporting that he had visited the Chalatenango
Court of First Instance on July 15 and established that the case
was still filed and that no investigation had been made of the
troops at Military Post No. 1.
He repeated his request that in the instant case, the
Commission demand that the Salvadoran Government fulfill its
obligation to investigate the facts, try the suspects and
compensate the victim's next-of-kin.
October 5, 1993, the Inter-American Commission on Human Rights,
sitting at its 84th Regular Meeting considered this case and
issued Report No. 20/93, pursuant to Article 50 of the American
Convention on Human Rights.
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 request
of October 18, 1993.
the question of admissibility:
petition satisfies the formal requirements for admissibility
contained 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 essentially the same as a
petition already examined by the Commission, as required under
Article 47 of the Convention.
regard to the Commission's competence in the instant case:
Commission is competent in the instant case because it concerns
violations of rights recognized in the American Convention on
Human Rights, mainly Article 4 on the right to life and Article
25 on the right to judicial protection, 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 for El Salvador,
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 2 years have elapsed since the events
transpired and despite the seriousness of the charges, the
Government of El Salvador has not given a satisfactory response
to the facts submitted by the petitioner concerning the attack
upon a group of civilians and a Salvadoran Red Cross units by
troops from Military Post No. 1, based in Chalatenango; no
serious investigation to identify, try and punish those
responsible has been conducted and no compensation for the
victim's next-of-kin has been set.
b. As for the
right to life established in Article 4 of the American
Convention, the Commission believes that the following factors
have to be considered:
This is not an isolated or unusual case; in fact, in the
Commission's Annual Report for 1991, the year when the material
facts in this case occurred, it reported that it had received
information on various cases involving military actions by the
armed forces that adversely affected the civilian population; for
example, there was the case of the Air Force bombing on April 10
of that year, in a place known as Plano Samuria, near the town of
Jucuapa in the department of Usulután, which had left two
children dead and five other people wounded.
The victim in this case was an 8-year old child who should
have received not only the general protection accorded under
humanitarian law for civilian victims of armed conflict, but also
special treatment because she was a minor.
The United Nations Convention on the Rights of the Child,
which El Salvador signed on January 26, 1990 and ratified on July
10 of that year, provides that:
Parties recognize that every child has the inherent right to
Parties shall ensure to the maximum extent possible the survival
and development of the child.
Parties undertake to respect and to ensure respect for rules of
international humanitarian law applicable to them in armed
conflicts which are relevant to the child. (...)
accordance with their obligations under international
humanitarian law to protect the civilian population in armed
conflicts, States Parties shall take all feasible measures to
ensure protection and care of children who are affected by an
Protocol II of the Geneva Convention of 1949, relating to
the protection of victims of non-international armed conflicts,
which El Salvador signed in 1977 and ratified in 1978 and in
effect since May 1979, provides that:
and religious personnel shall be respected and protected and
shall be granted all available help for the performance of their
duties. They shall
not be compelled to carry out tasks which are not compatible with
their humanitarian mission.
units and transport shall be respected and protected at all times
and shall not be the object of attack.
The civilian population and individual civilians shall
enjoy general protection against the dangers arising from
military operations. To
give effect to this protection, the following rules shall be
observed in all circumstances:
The civilian population as such, as well as individual
civilians, shall not be the object of attack.
Acts or threats of violence the primary purpose of which
is to spread terror among the civilian population are prohibited.
Civilians shall enjoy the protection afforded by this
Part, and for such time as they take a direct part in
The above rules were obviously not respected in the
instant case and the facts reported -i.e., that one of the
bullets that the DM1 soldiers fired at the civilian population
struck and mortally wounded the child and that the ambulance
attempting to carry her to hospital was attacked, thereby
delaying the medical attention she so urgently needed- are acts
and omissions that violate the rights to life and physical safety
of the child María Teresa Guardado.
The right to the judicial protection that the State is
obliged to provide was also violated by its failure to conduct a
serious investigation to identify, try and punish those
responsible and compensate the victim's next-of-kin, and by the
acts it committed to cover up the identity of those responsible,
such as failing to name the DM1 soldiers as the suspects in the
attack in either the findings of the proceedings or in the
communications to the Commission, despite incriminating testimony
given to that effect by the child's mother; by its failure to
investigate the intimidation tactics used against Mrs. María
Leonor Orellana by supposed agents of the State, and by having
terminated the judicial protection by ordering that the case be
though the victim's mother clearly accused troops of the DM1 and
despite the circumstances described in the petition -i.e., that
María Teresa Guardado was hit by a single bullet aimed
intentionally at a group of civilians from the direction of the
soldiers and that at the time those soldiers spotted the
civilians, the former were already marching and firing in the air
since by that time the clash with FMLN troops had ended-, the
court authorities did not conduct an investigation of the kind
described by the Inter-American Court of Human Rights as follows:
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
In reference to the duty to investigate, the Court found
The duty to investigate] 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.
failure to conduct a serious investigation is evident by what the
Chalatenango Court of First Instance did, which was merely to
take statements from two witnesses, whose relationship to the
events in question was not made clear in the communications sent
to the Commission; based on those two statements alone, it
ordered the case filed and took no other measures.
The Federal Prosecutor, for his part, merely requested an
elaboration of the statements made by those witnesses, which did
not in any way alter the obvious flaws in the procedure.
other aspects of the processing:
a. The facts
prompting the petition are such that they cannot be resolved by
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
petitioners asked the Commission to use this procedure.
b. Since 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 placed before it
c. All 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.
regard to the exhaustion of the remedies under domestic law:
a. In the
instant case, the petitioner has been unable to secure effective
protection from the body having jurisdiction; she filed and
exhausted the available domestic remedies and hence complied with
the provisions of Article 46 of the Convention, as shown below:
On March 21, 1991, Mrs. María Leonor Orellana filed a
complaint with the Chalatenango Court, which was placed on the
docket of the Chalatenango Court of First Instance. After taking statements from two witnesses and without any
further investigation, that court decided to file the case.
On April 19, 1991, Mrs. María Leonor Orellana also filed
a brief with the Office of the Attorney General of the Republic
wherein she described the facts and requested that a commission
be appointed to investigate and determine the responsibility of
troops from Military Post No. 1.
The only outcome of this petition was the expanded
testimony from the two witnesses mentioned earlier.
b. There is
no other suitable, adequate or effective internal remedy that the
victim's family can use.
the Government of El Salvador has not challenged the
admissibility of the petition on the grounds of a failure to
exhaust the remedies under domestic law; therefore, in keeping
with the jurisprudence of the Inter-American Court of Human
Rights, the interpretation must be that the Government has
tacitly waived that challenge.
regard to noncompliance with Report 20/93 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. 20/93, 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 finds that the
Government of El Salvador is responsible for the facts denounced
in the communication of July 8, 1991, to the effect that on March
21, 1991, María Teresa Guardado, age 8, died from a bullet fired
from a weapon carried by a group of soldiers from Military Post
No. 1, headquartered in Chalatenango.
After an engagement with FMLN troops, these soldiers were
walking along, firing in all directions; one of those bullets
struck María Teresa Guardado.
Commission also finds that the Government has violated the
American Convention on Human Rights, chiefly its Article 4 on the
right to life and 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.
Commission makes the following recommendations to the Government
of El Salvador:
a. That it
conduct an exhaustive, rapid and impartial investigation into the
facts denounced to identify those responsible for the death of
the child María Teresa Guardado, and the identity of those who
attacked the ambulance in which she was being transported, and
that they be tried to receive the punishment which this serious
b. That it
redress the consequences of the violation of the aforementioned
rights and pay the victim's next-of-kin a just compensation.
it adopt the measures necessary to avoid a recurrence of similar
acts in the future; specifically, that courses be established to
instruct members of the military on how the civilian population
must be treated, especially children, in situations of armed
conflict, regardless of the type, and in the respect that medical
units and medical personnel must receive.
Commission invites the Government to accept the jurisdiction of
the Inter-American Court of Human Rights in this specific case
which is the subject of this report.
5. To 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.
Inter-American Court of Human Rights, Velásquez Rodríguez
Case, Judgment of July 29, 1988, paragraph 174.
Inter-American Court of Human Rights, Velásquez Rodríguez
Case, Judgment of July 29, 1988, paragraph 177.