Irregularities in the investigation
Irregularities in the initial investigation definitively marked the
judicial proceedings in the case of the assassination of the Archbishop of San
Salvador, as the authorities in charge did not recover or conserve the evidence,
failed to obtain expert evidence, and neglected procedural steps that are urgent
and not subject to reproduction, such as the reconstructions and taking of
statements from eyewitnesses. In
addition, the authorities failed to investigate facts clearly linked to the
summary execution of the Archbishop, which would have made it possible to
establish, in a fair trial, the identity of the material perpetrators and
planners of the crime.
Evidence was neither collected nor conserved
As mentioned supra, the Truth Commission determined that the National Police
acted deficiently, as they failed to collect material indicia of the crime at
the crime scene. In effect, the
agents of the National Police, an institution which by legal and constitutional
mandate should intervene in all cases of violent death, went to the crime scene
almost four days after the fact.
The police did not collect evidence nor did they provide the Judge any
information or evidence whatsoever to help in the investigation.
In statements made in 1982, Judge Ramírez Amaya--the
first of four judges to sit in the case--referred to "premeditated
omissions on the part of the officials in charge of justice" aimed at
"covering up the assassination from the beginning."
The Judge stated, in this regard:
Oscar Arnulfo Romero was assassinated the afternoon of Monday, March 24, by one
shot. I do not believe that the
crime will be resolved under the current circumstances. Above all, I believe that no one will be indicted as a result
of the work currently being done.
Criminal Investigations Section of the National Police intervenes in all cases
of violent death, even obvious cases of suicide. They always arrive before the judicial authorities.
Nonetheless, in the assassination of Monsignor Romero they arrived almost
four days after the crime, and did not provide the court any information or
evidence of an investigation into the crime.
On the 28th I noted this failure to carry out their obligations as
criminal justice officers; I directed these observations to the police experts
who came around noon, almost four days after the assassination, to ask whether
"they could help with anything."
The same happened with the office of the Public Prosecutor of the
Republic; the special prosecutor came the 28th, also with instructions to be
present in the proceedings. These
premeditated omissions on the part of criminal justice officers leaves no doubt
that there was some kind of conspiracy to cover up the assassination from the
Procedural steps essential to determine the truth were not performed
or were not validated
When the autopsy was performed on the corpse of the Archbishop of San
Salvador, three pieces of shrapnel were extracted from the thoracic cavity for
study. Based on their weight, the National Police
confirmed that the projectile was a .22-caliber bullet.
Nonetheless, the corresponding proceeding does not appear in the judicial
file; nor do the X-rays of the thorax taken during the autopsy.
Some eyewitnesses were called to give testimony long after the crime,
even though witness testimony should have been taken without delay so that the
eyewitnesses could accurately recall the details of what they saw, and be kept
from being subjected to threats or any type of undue pressure.
For example, Sister María Clelia Flores Iraheta stated that she had seen
a moving vehicle in front of the chapel when they shot Monsignor Romero; and
that she had also seen a person who was leaning towards the vehicle, as if to be
putting something away. Nonetheless,
Flores Iraheta was not interviewed as a witness until December 18, 1985, more
than five years after the crime.
The direct perpetrators and planners of the extrajudicial execution of
Monsignor Romero were not investigated
Based on the doctrine of the IACHR and the provisions of the
above-mentioned UN Manual, the investigators should have identified and
apprehended the person or persons who participated in the execution and brought
them before a lawfully-established court. The
IACHR has established that the decision to execute the Archbishop of San
Salvador was made by Major Roberto D'Aubuisson; that Captains Alvaro Saravia and
Eduardo Avila and civilians Eduardo Sagrera and Mario Molina actively
participated in planning the execution; and that Walter Antonio "Musa"
Alvarez and Captain Saravia were implicated in the payment made to the gunman.
The deficient investigation was not seriously aimed at identifying,
apprehending, placing on trial, and punishing the above-mentioned persons; to
the contrary, it was aimed at ensuring that their criminal actions would enjoy
No proper investigation was undertaken into Captain Alvaro Saravia,
and the testimony of Amado Antonio Garay, a key eyewitness, was dismissed
Amado Antonio Garay Reyes, Captain Saravia's driver, gave key testimony
to clarify this case, as he confessed to having transported the gunman in the
execution of Monsignor Romero, and revealed the details of that execution.
Garay Reyes identified Captain Alvaro Saravia as the person who planned
and decided to carry out the homicide, along with Major D'Aubuisson, and Dr.
Antonio Regalado as the marksman. In
the testimony taken by the Investigative Commission on November 16, 1987,
Garay Reyes stated:
he worked as a driver for Captain Alvaro Rafael Saravia, his work consisting of
driving his wife's vehicle and some vehicles that Captain Saravia brought to his
residence or that were loaned to him, running errands to the supermarkets or
other missions assigned to him by Captain Saravia or his wife; in addition he
drove Captain Saravia himself; that one day towards the end of March 1980, the
exact date of which he doesn't recall, he left Captain Alvaro Saravia's
residence at about five o'clock in the afternoon, driving a vehicle that had
been provided to the Captain, who told him that he would guide him to the place
he was going, which he did, and he arrived at the black gate of a residence
situated in the San Benito neighborhood of this city;
the declarant parked the vehicle by the parking lot, and Captain Saravia got out
of the vehicle and entered the residence in question, while the declarant had
remained outside that house, ... moments later he was called by a female
domestic employee of that residence..., who offered him a refreshment and a
piece of bread ... that while he was having the refreshment by the door used by
the domestic employees, he was called by Captain Alvaro Saravia, who had emerged
from inside the house and he told him: "drive
that car," pointing to a red four-door vehicle, a Volkswagen, and also
telling him: "follow that car
that is ahead," in respect of which he did not recall the make, color, or
number of persons in that vehicle, but he did note that there were more than two
persons; he then got in the red vehicle and, once inside, realized that in the
back seat, to the right, was a bearded man, about 25 years old, at that time,
good looking, tall, slim, straight hair but with curls at the top of the
forehead, who he did not know, but he can recognize him if introduced at any
time; that obeying the order given by Captain Saravia, he followed the vehicle
that went ahead ... upon reaching a black gate, the bearded individual in the
back seat told him to turn left and enter the gate, that he should no longer
follow the vehicle ahead, and he did so, realizing that from that gate there was
a street with paving blocks that led to a church ... that he entered the gate
towards the above-mentioned church, coming in front of it, and the bearded
individual told him to turn the car around, which the declarant did in a parking
area at that place, stopping the vehicle some three or four meters before
reaching the front of the church; that when he stopped the vehicle at that
place, the bearded individual with him told him:
"No, stop in front of the church"; that when he stopped in
front of the church, he saw a priest holding mass at the altar, not knowing who
it was and that there were people listening; that afterwards, the bearded man
told him that he should make it look like he was fixing something in the car,
without telling him why, and so he simulated as if he were fixing the
when he was appearing to be fixing the transmission stick, he heard a loud
explosion caused by a firearm, behind the declarant, and so immediately got up,
scared, looking back, seeing that the bearded man who was in the back seat was
holding a rifle in both hands pointing to the right of the vehicle's right rear
window ... seeing and hearing that inside the church they were shouting, without
the declarant able to determine what had happened at that instant; that the
bearded individual immediately told him, with a calm voice: "drive slowly and easily," and so he put the
vehicle into drive.
when he calmed down a bit he could situate himself in the place where he was,
and was able to reach the same place from which the red four-door vehicle had
left, where they opened the gate as he entered the residence, and he parked in
the parking area; that the declarant and the bearded man got out of the red
vehicle, which remained parked in that house's garage, the bearded individual
got out first, and the declarant noted that Captain Saravia was outside that
house, waiting for him, and the bearded person saluted him with his right hand
and told him: "Mission
at six o'clock that afternoon, he heard on the radio that they had killed
Monsignor Arnulfo Romero, one day earlier at six o'clock in a church in San
Salvador, confirming at that moment that the perpetrator of that death had been
the bearded individual who was in the back seat of the red car the declarant was
three days after the death of Monsignor Romero, at approximately 3 o'clock in
the afternoon, he took Captain Saravia to a house he had that looked like a
castle, situated across from the television station Canal Dos of San Salvador;
that to enter that residence one enters through a door from which an internal
street begins that leads to that house, with a distance of fifty meters from the
gate to the residence; that on entering that house he saw that Major Roberto
D'Aubuisson was waiting for Captain Alvaro Saravia at the main door, and that
Captain Saravia got out of the car driven by the declarant and, turning to Major
D'Aubuisson, told him: "we
already did what we had planned in terms of the death of Monsignor Arnulfo
he did not inform the authorities of this because he thought that nothing would
happen to these persons, given the power they had, and from that time the
declarant began to fear for his life, in view of what he knew, but he continued
working for approximately two months, for Captain Saravia the whole time, while
seeking an opportunity to resign and leave the country, because if he stayed in
the country his life would be in danger; that in the last days of May 1980, he
was able to leave the country, and that once he was outside he was informed by
his wife that she was threatened by armed persons pressuring her to tell them
where he was....
The attorney for the Ministry of Justice, Julio Alfredo Samoya, gave a
witness statement in the Fourth Criminal Court of San Salvador on February 21,
1989. The IACHR considers that
Samoya's testimony is important, as it validates the testimony of Amado Antonio
Garay. Among other things, attorney Samoya declared as follows:
name appears repeatedly in a photocopy of the Diary of Captain Alvaro Rafael
Saravia Marino, which was in the possession of the CIHD and that it was the
means by which it was learned that he was the Captain's driver and that he had
also been arrested at the San Luis farm, jurisdiction of Santa Tecla, on May 7,
1980, along with Major D'Aubuisson and Captain Alvaro Saravia and other
civilians and military officers; that he was later located in Costa Rica with
the collaboration of the Judicial Investigation Authority of Costa Rica and the
security forces of that country, it having been established that he was there as
a refugee; that when the Garay residence was located members of the
Investigations Unit were sent to Costa Rica to speak with him, so he might tell
them what he knew about the case of the death of Monsignor Romero, he denied
initially that he knew anything about it, but ultimately prepared a statement on
his participation in the crime, which he retold in this court.
That so that he could give testimony in this court the Government of
Costa Rica gave him authorization to leave the country, guaranteeing he could
re-enter Costa Rica after making his statement to this court....
That he was given a polygraph test, i.e. a lie detector test, on which he
On November 24, 1987, based on the testimony of Amado Garay Reyes, the
provisional detention of Alvaro Saravia was ordered when he had already left the
country and was residing in the United States of America.
Nonetheless, the Supreme Court of Justice of El Salvador voided that
order, considering that Garay Reyes’ declaration did not merit full faith,
given the time elapsed since the assassination.
The Supreme Court ruled, moreover, that the Public Prosecutor was not
authorized to request the extradition of Captain Saravia.
The IACHR considers that this act placed a fundamental obstacle in the
way of the investigation.
There was an evident lack of diligence and of official will to give
impetus to the investigation, as the authorities had sufficient grounds for
calling Garay Reyes to testify in relation to the crime from the moment he was
arrested and evidence was seized at the "San Luis" farm.
Yet Garay's testimony was only ordered seven years later, which resulted
in the Supreme Court of Justice alleging that the time elapsed rendered his
statement unreliable, and thereby precluded the apprehension and punishment of
the persons responsible for this crime.
As was indicated by the Truth Commission, the Supreme Court of Justice of
El Salvador "played an active role that served to hinder the extradition
from the United States and later imprisonment of former Capt. Saravia in El
Salvador. Among other things, this provided the planner of the
assassination with impunity." The
impunity was consolidated on March 31, 1993, when the judge in charge at the
Fourth Criminal Court applied the General Amnesty Law and dismissed definitively
the case against Captain Alvaro Saravia for the crime of aggravated homicide in
the assassination of Monsignor Romero.
No effective investigation was carried out into Major D'Aubuisson
As expressed supra, Major D'Aubuisson took credit in very closed circles for
having planned the assassination of the Archbishop of San Salvador
and was accused by witness Amado Antonio Garay of masterminding that
extrajudicial execution. D'Aubuisson
was also incriminated by the "Saravia Diary" and other documents found
and seized on May 7, 1980. Nonetheless,
he was not duly investigated nor brought before the judicial organs of El
This was confirmed 13 years after the execution of Monsignor Romero by
the Fourth Criminal Judge, on ruling on the application of the Amnesty Law to
Roberto D'Aubuisson and the possible dismissal of charges against him.
The Judge considered that charges against D'Aubuisson, now deceased,
should not be dismissed for the following reasons:
he was not an accused, and in any event his death, which was public and
notorious and need not be proven, extinguishes the criminal action (Article 119
Section 1 of the Criminal Code), thus the Law on General Amnesty for the
Consolidation of Peace is not applicable, and so there was no declaration that a
criminal complaint be pursued against him by the Legislative Assembly that might
give him the status of an accused.
It has also been seen that the above-noted judicial resolution was
confirmed by the First Criminal Chamber on May 13, 1993.
The same Chamber declared final the judgment handed down on this motion,
as the legal term elapsed without the Office of the Public Prosecutor having
filed any motion.
Pursuant to the above-cited judicial decisions, any later investigation
of the crime was impeded, and the veil of impunity covering and which continues
to cover all those who masterminded the crime has been consolidated.
The forced disappearance of eyewitness Pedro N. Martínez was not duly
Mr. Pedro N. Martínez disappeared on April 13, 1980, 20 days after
having witnessed the summary execution of and taken Monsignor Romero to the
hospital. His brother, Mr. Roberto
Antonio Martínez, declared that he had received information that some
individuals in civilian dress had captured him when he was about to get into his
vehicle and placed him in a beige or white minivan.
Despite that declaration, the disappearance of the witness was not duly
investigated. The whereabouts of
Pedro N. Martínez have yet to be determined as of the date of adoption of this
According to the declarant, after the assassination of Monsignor Romero,
his brother had told him he was present at the mass offered by the Archbishop
the day of the events analyzed here. In
this respect, Roberto Antonio Martínez stated as follows:
a gunshot had been heard, then Monsignor Romero had fallen and that he had
assisted him, to drive him to a health care center, which is true because the
photograph of his brother carrying Monsignor Romero when they were taking him to
the hospital was published, with no more details noted in this respect.
That after his brother was kidnapped, the declarant and his family
searched for him in all the security forces, without receiving any information
about him; and that they lodged complaints at the National Red Cross and in the
Legislative Assembly; that he remembers that Attorney Mauricio Méndez Garay,
who has or had his office at Tercera Calle Poniente [Third Street West] and
Diecisiete Avenida Norte [17th Avenue North] helped them move about, looking for
him, this attorney even visited several security forces, but no positive results
were obtained, such that his brother has yet to appear.
Despite these declarations, and even though Pedro N. Martínez was a key
witness, his disappearance was not duly investigated in relation to the
extrajudicial execution of Monsignor Romero.
The search of the Office of Legal Assistance was not duly investigated
According to the information received by the IACHR, on July 5, 1980,
approximately four months after the assassination of Monsignor Romero, the
Office of Legal Assistance in El Salvador was searched.
The search was allegedly undertaken by members of the security forces,
who took the files in the Monsignor Romero case, including witness statements
that implicated the Armed Forces in the assassination, as well as other
important evidence. This incident
was not duly investigated.
The IACHR is of the view that this is yet another basis for determining
the responsibility of the Salvadoran State in covering up the assassination of
Neither the threats received by the Archbishop of San Salvador nor the
earlier attempt on his life were duly investigated
Monsignor Romero was subjected to an insidious press campaign in which he
was accused of being a terrorist and a subversive.
This campaign was stepped up in the weeks prior to his death, along with
threats against his life. On
March 9, 1980, 15 days before his extrajudicial execution, a bomb was found at
the Basilica of the Sacred Heart of Jesus (Basílica
del Sagrado Corazón de Jesús)
apparently aimed at causing his death. The
explosive device, manufactured with 72 sticks of commercial dynamite camouflaged
in a black briefcase, was found behind the pulpit, between the pillars of the
where the Archbishop of San Salvador had officiated mass the previous day in
memory of attorney Mario Zamora Rivas, assassinated by the death squads.
The Explosives and Demolition Unit of the National Police of El Salvador
reported that the explosive was no doubt prepared by experts who used highly
sophisticated equipment and materials "never before used by
the opinion of the National Police, it was the first such case in El Salvador.
Even so, the grave event was not duly investigated.
In addition, as confirmed by the correspondence between the Office of the
Public Prosecutor and the Investigative Commission, no judicial proceedings were
opened to identify the persons responsible.
In effect, on February 12, 1986, six years after the crime, the Executive
Unit of that Commission requested the Public Prosecutor of El Salvador to report
on whether the institution he headed up had initiated any inquiry into the
intended dynamite attack of March 9, 1980. The
Public Prosecutor answered in the negative and literally reproduced the
following report, which one of the prosecutors gave him:
PUBLIC PROSECUTOR OF THE REPUBLIC: --Sincerely
and by this means I hereby REPORT: That the Fourth Criminal Court of this city is furthering the
proceedings looking into the death of Monsignor OSCAR ARNULFO ROMERO Y GALDAMEZ,
which is now in its investigative phase, in which I intervene as Special
Counsel, along with JORGE ALBERTO GOMEZ AND RICARDO MARCIAL ZELAYA LARREYNAGA.--
With respect to the attempted attack of March 9, 1980, at the Church of the
Sacred Heart of this city, when Monsignor ROMERO Y GALDAMEZ was to hold mass, no
proceeding has been initiated by this institution, nor has any been referred to
any auxiliary corps, all of which has been learned by public reputation and from
some communications media. (emphasis in the original)
This means that six years after the extrajudicial execution, as part of
the negligence and cover-up by the State, this attempted dynamite attack had yet
to be investigated in connection with the Monsignor Romero case, nor had
"any proceedings been initiated" by the Office of the Public
Prosecutor to try the persons responsible.
In summary, the institutional mechanisms of government in El Salvador did
not react by offering due protection to Monsignor Romero, nor by duly
investigating the attempted attack in relation to the events that caused his
death days later.
The assassination attempt against Judge Ramírez Amaya was not duly
On March 27, 1980, three days after the execution of the Archbishop of El
Salvador, there was an attack on Judge Atilio Ramírez Amaya, the judicial
officer investigating the case. That
day, his domestic employee, María Hernández, allowed two young persons,
unknown to her, into the house; they said they had come on behalf of someone who
the judge had supposedly been looking for.
The judge, who was suspecting an attack, presented himself to the unknown
persons with a shotgun. When one of
them pulled out a machine-gun, the judge lifted the shotgun to fire, which he
could not do because Mrs. Hernández placed herself between him and the unknown
persons. The youths took advantage
of the opportunity to flee, but not without first firing several shots, one of
which wounded her in the hip.
Inspector Francisco Sánchez Escobar, who was in charge of the inquiry
into the attack, reported that Judge Ramírez Amaya had stated that he could not
suspect anyone in particular, nor associate it with any accident, "except
for persons he knows from his functions, among whom he can mention those charged
with the assassination of Monsignor Oscar Arnulfo Romero."
It should be added that Ramírez Amaya declared that he had begun to
receive death threats the day after the assassination of the Archbishop of San
Salvador. The judge said that he did not have enemies or political
views, and that he considered that the attempts on his life were due to the fact
that he was in charge of "the investigations into the case of the savage
assassination of Monsignor Romero."
Once again, despite the suspicions expressed by Judge Ramírez Amaya, the
assassination attempt on his life was not duly investigated in connection with
the death of Monsignor Romero. The
judge's suspicions were later confirmed in the findings of the Truth Commission
Report: "There is sufficient evidence that the failed
assassination attempt against Judge Atilio Ramírez Amaya was a deliberate
attempt to deter investigation of the case."
To illustrate the delay and deficiency in the investigation and the way
in which this incident was separated from the death of Monsignor Romero, it
should be noted that the judge's domestic employee was not called to testify
until two years and eight months after the assassination attempt.
At that time, obviously late, an order was given to "examine the
blood and condition of the lesions she may have."
On February 27, 1984, i.e. almost four years after the assassination attempt, the Fourth
Criminal Judge voided that summons, considering that the domestic employee had
been "wounded in an act that is distinct from that which is being
investigated." At the same
time, the judge ordered that the proceeding on the respective information be
The kidnapping and death of Walter Antonio "Musa" Alvarez
The IACHR has determined that there is sufficient evidence that Walter
Antonio "Musa" Alvarez, together with Captain Saravia, was involved in
making the payment to the direct perpetrator of the assassination.
Alvarez knew the assassin's identity and could implicate both the
assassin and Saravia, among others, in the extrajudicial execution of the
Archbishop of San Salvador. Coincidentally,
"Musa" Alvarez was kidnapped in September 1981 and found dead shortly
According to what the petitioners stated in the hearing held at IACHR
headquarters during its 105th session, it was "Musa" Alvarez, and not
Dr. Regalado, who shot Monsignor Romero. It
should be recalled that the Truth Commission considered that the information
available to it was not sufficient to determine who was the direct perpetrator
of the assassination.
Conclusions as to the duty to investigate and punish
As has been established, in the instant case the State did not undertake
an effective investigation nor did it adopt the necessary measures to bring to
trial all of the persons implicated. Nor
did it act as was required to duly try the accused.
In effect, from the first procedural acts, one could note an official
attitude of reluctance to proceed properly in the case of Monsignor Romero.
The judicial proceeding was so drawn out that it unfolded from 1980 to
1994. During that time, several
Attorneys General of the Republic served in succession and various judges were
in charge of the case. The
excessively sluggish pace of the proceedings depended on the vicissitudes of
politics, which made it ever less likely that an in-depth investigation would be
In this respect, the Truth Commission established that "the
investigation to determine who was responsible for the Archbishop’s
assassination was not only inefficient but also highly controversial and plagued
by political motivations." One
example of such political motivation was the designation of José Francisco
Guerrero in June 1984 as Public Prosecutor of El Salvador.
Mr. Guerrero was a member of the ARENA party and the personal attorney of
Roberto D'Aubuisson before assuming the post.
The appointment was made thanks to a coalition of parties in the
in the face of strong opposition from the elected members of the Christian
Democratic party. On May 21, 1985,
the new Legislative Assembly dismissed Guerrero "for not meeting the
well-known requirements of morality and competence" (the coalition had lost
its majority in the previous elections). Guerrero
was restored to the post pursuant to a decision by the Supreme Court of Justice
that declared that his dismissal had been unconstitutional.
The sluggish pace of justice was not spontaneous.
In this case it came about as the result of strategic and concerted
actions that kept the Supreme Court of Justice, the Office of the Public
Prosecutor of the Republic, and the Courts from acting impartially and seeking a
fair trial with due process guarantees.
Accordingly, the IACHR concludes that El Salvador has violated, to the
prejudice of the victim’s relatives, the right to judicial guarantees
established in Article 8(1) of the American Convention and the right to judicial
protection, set forth at Article 25 of the Convention.
The Commission also concludes that the Salvadoran State, by virtue of the
conduct of the authorities and institutions identified in this report, is
responsible for failing to carry out its duty to investigate seriously and in
good faith the violation of rights recognized by the American Convention; to
identify the persons responsible for that violation, place them on trial, punish
them, and make reparations for the human rights violations; and for failing in
its duty to guarantee rights as established in Article 1(1).
3. The compatibility of the General
Amnesty Law with the American Convention
The States parties to the American Convention have freely assumed the
obligation to respect and guarantee all the rights and freedoms protected
therein to the persons subject to their jurisdiction and to adapt their
legislation so as to make effective the enjoyment and exercise of those rights
and freedoms (Articles 1(1) and 2 of the Convention).
Some states, seeking mechanisms for peacemaking and national
reconciliation, have adopted amnesty laws whose result is to leave without
remedies the victims of serious human rights violations by depriving them of the
right of access to justice.
The compatibility of the amnesty laws with the American Convention has
been examined by the IACHR on several occasions in decisions on individual
laws examined in those cases provided for impunity for serious human rights
violations committed against persons subject to the jurisdiction of the
respective State party to the American Convention.
The Commission has indicated repeatedly that the application of amnesty
laws that impede access to justice in cases of serious human rights violations
renders ineffective the obligation of the States parties to the American
Convention to respect the rights and freedoms recognized therein, and to
guarantee their free and full exercise to all persons subject to their
jurisdiction with no discrimination of any kind, as provided in Article 1(1) of
the Convention. In
effect, the amnesty laws eliminate the most effective measure for the observance
of human rights, i.e. the trial and punishment of those responsible for violations of
The doctrine and practice of the IACHR in respect of amnesties coincides
with the conclusions of the study on impunity prepared by United Nations Special
Rapporteur Louis Joinet. In
his study, submitted to the UN Commission on Human Rights on October 2, 1997,
Joinet recommended the adoption of 42 principles aimed at protecting and
promoting human rights through actions to combat impunity.
Principle 20 refers to the duty of states in relation to the
administration of justice. Joinet stated, in this regard, that impunity arises from the
fact that the states do not carry out their duty to investigate these violations
and to adopt, particularly in the administration of justice, measures to
guarantee that the persons responsible for having committed them be accused,
tried, and punished. In addition,
impunity arises from the fact that the states do not adopt appropriate measures
to provide the victims with effective remedies to make reparation for the
damages they have suffered, and to prevent the recurrence of such violations.
The Inter-American Court has also laid down a clear doctrine according to
which an amnesty law cannot be used to justify the failure to carry out the duty
to investigate and to grant access to justice.
The Court has stated:
States cannot, in order to not carry out their international obligations, invoke
provisions of their internal law, as is, in this case, the Amnesty Law ... which
in the view of this Court hinders the investigation and access to justice.
For these reasons, the argument ... that it is impossible for it to carry
out that duty to investigate the events that led to this case must be rejected.
Consequently, a state cannot rely on the existence of provisions of
internal law to elude carrying out its obligation to investigate human rights
violations, place on trial the persons responsible, and prevent impunity.
Moreover, the Court has defined impunity as "the failure, taken together,
to investigate, prosecute, arrest, try, and convict those responsible for the
violations of the rights protected by the American Convention," and has
noted that "the State has the obligation to combat that situation by all
available legal means, as impunity fosters the chronic repetition of human
rights violations and the total defenseless of the victims and their
In its "Report on the Situation of Human Rights in El
Salvador," the IACHR referred specifically to the General Amnesty Law
applied to the persons allegedly responsible for the assassination of Monsignor
Romero. On March 26, 1993, within
the term available to President Alfredo Cristiani to veto the recently approved
amnesty law, the IACHR conveyed to the Salvadoran Head of State its concern that
said law would be an obstacle to carrying out the recommendations of the Truth
Legislative Assembly's passage of a General Amnesty Law on March 20, immediately
after publication of the Truth Commission Report, could compromise effective
implementation of the Truth Commission's recommendations and eventually lead to
a failure to comply with the international obligations undertaken by the
Government of El Salvador when it signed the Peace Agreements.
Commission would like to call Your Excellency's attention to the fact that the
political agreements concluded among the parties in no way relieve the State of
the obligations and responsibilities it has undertaken by virtue of its
ratification of the American Convention on Human Rights and other international
instruments on the same subject.
Article 27 of the Vienna Convention on the Law of Treaties, a State cannot
unilaterally invoke provisions of its domestic law as justification for its
failure to perform the legal obligations imposed by an international treaty.
Finally, Article 144 paragraph 2 of the Constitution of El Salvador
states that "the law shall not modify or derogate that agreed upon in a
treaty in effect in El Salvador. In the event of a conflict between the treaty
and the law, the treaty will prevail."
Inter-American Commission on Human Rights would also like to remind Your
Excellency's Government that El Salvador's ratification of the American
Convention on Human Rights made it a State Party and as such it has, as the
Inter-American Court of Human Rights stated, "(...) a legal duty (...) 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." In
reference to Article 1 of the Convention, the Court added that "if the
State apparatus acts in such a way that the violation goes unpunished (...) the
State has failed to comply with its duties to ensure the free and full exercise
of those rights to the persons within its jurisdiction."
In that report, moreover, the IACHR recalled the specific recommendations
related to this issue, which had already been made to the State in Report 26/92
("Las Hojas Massacre").
Notwithstanding the concern expressed in timely fashion by the IACHR, the
Legislative Assembly of El Salvador adopted the General Amnesty Law
only five days after the Truth Commission Report was issued.
That law granted a "full, absolute and unconditional amnesty to all
those who participated in any way in the Commission, prior to January 1, 1992,
of political crimes or common crimes linked to political crimes in which the
number of persons involved is no less than twenty."
The effect of the amnesty extended, among others, to the crimes of
torture and forced disappearance of persons by state agents.
These violations have been considered so serious by the international
community that they have led to the adoption of special conventions and the
inclusion of specific measures to avoid impunity in the case of such crimes,
such as universal jurisdiction and imprescriptibility of the cause of action.
The amnesty extended to the serious violations examined by the Truth
Commission, which include this case. In
particular, it was applied to Captain Saravia, the only one of the persons
responsible against whom a provisional arrest warrant had issued in relation to
the death of Monsignor Romero. In
the case of Captain Saravia, it has been seen supra
that the judge characterized the extrajudicial execution of the Archbishop of
San Salvador a political crime, so as to ensure impunity.
The duty to adopt provisions of internal law (Article 2 of the
American Convention) and the right to justice and the nondelegable duty to
investigate, judge, and punish (Articles 1(1), 8, and 25 of the American
Article 2 of the American Convention establishes the obligation of the
States parties to adopt "such legislative or other measures as may be
necessary" to give effect to the rights and freedoms set forth therein.
This provision includes a negative obligation: the States are also obliged to refrain from adopting laws
that do away with, restrict, or render null and void the rights and freedoms, or
the effectiveness thereof, set forth in the American Convention.
In this respect, the Inter-American Court has formulated the following
State may violate an international treaty and, specifically, the Convention, in
many ways. It may do so in the
latter case, for example, by failing to establish the norms required by Article
2. Likewise, it may adopt
provisions which do not conform to its obligations under the Convention. Whether those norms have been adopted in conformity with the
internal juridical order makes no difference for these purposes.
should be no doubt that the Commission has in that regard the same powers it
would have if confronted with any other type of violation and could express
itself in the same way as in other cases. Said
in another way, that it is a question of "domestic legislation" which
has been "adopted pursuant to the provisions of the Constitution," is
meaningless if, by means of that legislation, any of the rights or freedoms
protected have been violated. The powers of the Commission in this sense are not restricted
in any way by the means by which the Convention is violated.
The Court has also established that:
general duty of Article 2 of the American Convention on Human Rights implies the
adoption of measures along two lines: First,
suppressing laws and practices of any nature that entail violation of the
guarantees provided for in the Convention; and second, adopting laws and
developing practices leading to the effective observance of such guarantees.
As seen supra, the application of the General Amnesty Law to this case
resulted in there being no trial or punishment for the only person for whom an
arrest warrant was issued, or for any of the other persons accused of
participating as direct perpetrators or planners of the extrajudicial execution
of Monsignor Romero. From the facts
of the case it also appears that the constitutionality of said law was
challenged before the Supreme Court of Justice, which threw out the claim
without addressing the merits of the case, considering it a
"non-justiciable political question."
In a previous case, the IACHR laid down its position on the
"political question doctrine":
systems recognize the so‑called "delegated powers" of the
branches of government that is a product of their classic three-way separation.
The appointment and removal of magistrates by the Legislature, under the
conditions stipulated in the Constitution, is one of those powers.
examples of such powers expressly reserved for a given branch of government
under the Constitution are, inter alia,
the authority to declare war, ratification of treaties, declaration of a state
of siege, recognition of foreign governments or their representative,
appointment and removal of ministers and ambassadors, and the authority to
declare something to be in the public domain.
political question doctrine is premised on the existence of those powers of the
branches of government. According to that doctrine, the Judiciary will abstain
from reviewing certain acts when such a decision presupposes an eminently
political judgment that is exclusively reserved for a given branch of
government, whether it be the executive or legislative.
However, such doctrine also recognizes that those acts can only be
judicially reviewed with respect to their extrinsic conformity to the
Constitution, that is, if they were passed by the competent body, following
constitutional procedure, and without any express violation of some material
rule in the Constitution.
Commission does not have competence to declare per se that a national law or court ruling is either
unconstitutional or unlawful, as it has stated previously. However, it does have
a fundamental authority to examine whether the effects of a given measure in any
way violate the petitioner's human rights recognized in the American Convention.
This practice is consistent with precedents set by the European Commission of
In the instant case, the effect of the decision by the Supreme Court of
Justice of El Salvador was the consolidation of the impunity which to date has
protected the alleged direct perpetrators and planners of the extrajudicial
execution of the Archbishop of San Salvador.
Therefore, the IACHR concludes that that judicial decision constitutes a
violation of Article 25 of the American Convention.
The Commission considers, as it stated in its Report 1/99, that the
application of the General Amnesty Law of 1993 is incompatible with El
Salvador's obligations under the Convention, as it renders ineffective the right
to judicial guarantees and judicial protection established at Articles 8(1) and
25 of the American Convention, as well as the general obligation assumed by the
state to respect and guarantee the rights established in the Convention.
Accordingly, the IACHR concludes that the State has violated Articles 2,
8, and 25 of the American convention, in conjunction with Article 1(1) of the
The right to know the truth
The right to know the truth with respect to grave violations of human
rights, as well as the right to know the identity of those who participated in
them, is a duty that all States Parties to the American Convention must carry
out, in respect of both the victims' next-of-kin and society in general.
These obligations arise fundamentally from the provisions of Articles
1(1), 8(1), 25, and 13 of the American Convention.
As has been indicated in this report, Article 1(1) of the American
Convention provides that the States Parties undertake to respect the rights
enshrined therein, and to guarantee their free and full exercise.
This obligation implies, according to the Inter-American Court, the
performance of real obligations on the part of the State to provide effective
guarantees for such rights.
As a result, the Salvadoran State has the legal duty to take reasonable
measures to prevent human rights violations, investigate with the means at its
disposal the violations committed within its jurisdiction, identify the persons
responsible, impose the pertinent sanctions on them, and ensure adequate
reparation is made to the victim or the victim's next-of-kin.
The American Convention in Article 13 protects, inter
alia, the right to gain access
to and to receive information. The
right to the truth is a collective right that enables society to have access to
information essential to the development of democracies.
At the same time, it is a private right of the next-of-kin of victims
that makes possible one form of reparation, especially where amnesty laws are
applied. The following excerpt of
the amicus curiae brief submitted in a
case that the IACHR brought before the Inter-American Court are relevant in this
Right to the Truth is intimately linked to the obligation assumed by the states
to ensure performance of the duties stipulated in human rights treaties and the
fundamental freedoms to which they have voluntarily submitted.
There is no doubt but that the victims' next-of-kin have the right to
have any investigation undertaken be exhaustive so that they can learn the truth
about the fate of their loved ones and the circumstances they have experienced,
as well as the public dissemination of the identity of the persons directly
responsible for the human rights violations they have suffered.
In addition, the truth is essential for being able to make an adequate
assessment of the compensation due in view of the responsibility for human
rights violations. Nonetheless, the
state's obligation to guarantee the Right to the Truth does not replace nor is
it an alternative to all other obligations it has in the context of its duty to
guarantee, to wit, the duty to investigate and impart justice.
This duty exists and remains independent of whether the others are
Article 25 of the American Convention is also related to the right to the
truth. The presence of factual or
legal impediments--such as an amnesty law--to relevant information related to
the facts and circumstances of the violation of a fundamental right is itself a
clear violation of Article 25, to the extent that it impedes access to domestic
remedies for the judicial protection of the fundamental rights established in
the Convention, the Constitution, and the laws.
In addition to the next-of-kin of the victims directly affected by a
human rights violation, the right to be duly informed vests in society at large. The
IACHR has held before that:
of the problem of proving guilt, which in every case must be determined
individually and with due process guarantees, by a pre‑existing court
which applies the law in force at the time the crime was committed, one of the
first matters that the Commission feels obliged to give its opinion on in this
regard is the need to investigate the human rights violations committed prior to
the establishment of the democratic government.... Every society has the
inalienable right to know the truth about past events, as well as the motives
and circumstances in which aberrant crimes came to be committed, in order to
prevent repetition of such acts in the future. Moreover, the family members of
the victims are entitled to information as to what happened to their
relatives.... Such access to the truth presupposes freedom of speech....
For its part, the Human Rights Committee of the United Nations has
established, on several occasions, and specifically with respect to violations
of the right to life, that the victims' next-of-kin have a right to be
compensated for those violations due, among other things, to the fact that they
do not know the circumstances of the death and the persons responsible for the
UN human rights organs have clarified and insisted that the duty to make
reparations for damage is not satisfied merely by offering a sum of money to the
victims' next-of-kin. First, an end
must be brought to their uncertainty and ignorance, i.e.
they must be given the complete and public knowledge of the truth.
The right that all persons and society have to know the full, complete,
and public truth as to the events transpired, their specific circumstances, and
who participated in them is part of the right to reparation for human rights
violations, with respect to satisfaction and guarantees of non-repetition.
The right of a society to have full knowledge of its past is not only a
mode of reparation and clarification of what has happened, but is also aimed at
preventing future violations.
The IACHR considers that despite the important role the Truth Commission
played in establishing the facts related to the most serious violations and for
promoting national reconciliation, the functions it performed do not take the
place of the judicial process as a method for arriving at the truth.
The value of truth commissions is that their creation is not based on the
premise that there will be no trial, but on their being seen as a step towards
restoring the truth and, in due course, justice. The
words of former President of the Inter-American Court Pedro Nikken are on point:
establishment of a truth commission is a plausible means, within a political
negotiation to reach peace in an armed conflict, as a first step and perhaps the
most tangible contribution that can be made within that scenario to combat
impunity.... [Nonetheless,] the
establishment of the truth should not inhibit the judicial organs from judging
and punishing the persons responsible, but outside the context of a political
for crimes committed by state agents or under the cover of the state does not
entail only the failure to punish the persons responsible for those crimes.
An inseparable component of such impunity is the failure to carry out any
investigation, the cover-up, and even the falsification of the facts to protect
the persons responsible. There is
no doubt that the discovery of the Truth, which is the responsibility of
independent persons, destroys that element which, while not useful in itself for
eradicating impunity, fulfills at least a dual function.
First, it is useful for society to learn, objectively, what happened in
its midst, which translates into a sort of collective catharsis. And second, it contributes to creating a collective
conscience as to the need to impede the repetition of similar acts and shows
those who are capable of doing so that even if they may escape the action of
justice, they are not immune from being publicly recognized as the persons
responsible for very grave attacks against other human rights.
In this regard, even though these do not constitute punitive mechanisms,
they may perform a preventive function that is highly useful in a process of
building peace and the transition to democracy.
It is clear that truth commissions do not take the place of the
non-delegable obligation of the State to investigate the violations committed
subject to its jurisdiction, to identify the persons responsible, to impose
sanctions on them, and to ensure adequate reparation for the victim,
all within the imperative need to combat impunity. In the case of El Salvador, the Truth Commission expressly
established that its work was not judicial in character, as judicial proceedings were reserved for the
Salvadoran courts. Consequently,
the Truth Commission lacked jurisdiction to impose sanctions or order the
payment of compensation in relation to the facts investigated and established in
In consideration of the foregoing, the IACHR concludes that the
application of the General Amnesty Law in the instant case eliminated the
possibility of undertaking judicial investigations aimed at determining the
responsibility of all those involved. In addition, that decision violated the right of the
victim’s relatives and of society at large to know the truth about the events
ACTIONS TAKEN AFTER REPORT Nº 138/99
The Commission adopted Report Nº 138/99 in this case pursuant to Article
50 of the American Convention, transmitted it to the Salvadoran State on January
4, 2000 and established a period of two months for compliance with its
recommendations. On March 2, 2000,
the State sent a communication to the IACHR indicating that it was “studying
the report and preparing the proper and complete response to the denounced
situation”. The State’s
that the Honorable Commission only granted my Government a period of two months
starting on January 4, instead of three months as provided for in Article 51 of
the American Convention on Human Rights and Article 47(2) of the Commission’s
Regulations, in connection with Article 23 of its Statute, the State of El
Salvador kindly requests that the legal three-month period be completed,
starting on January 4, 2000.
State of El Salvador wishes to highlight its preoccupation because in Case
10.488 P. Ignacio Ellacuría and others – El Salvador,
as well as in the instant case, the restriction of legal periods has been
coinciding with events of an internal political nature in El Salvador.
In the first case, the
report coincided with the anniversary of the death of the Jesuit Priests and in
this second case with the twentieth anniversary of the death of Monsignor Romero
and with the upcoming elections for Mayors and Representatives, which shall take
place precisely this March.
it is necessary to point out the need to recognize the effort carried out by the
Salvadoran society as a whole to consolidate the peace process and to achieve
national reconciliation, as well as to continue advancing in the path of
democracy and respect for human values.
First of all, the political and electoral considerations raised by the
Salvadoran State are notoriously out of the IACHR’s purview, so there shall be
no further comment on these matters. On
the other hand, the State request “that the legal three-month period be
completed” is based on an imprecision which must be clarified.
Article 50 of the American Convention does not establish expressly a
period for compliance with the recommendations in the respective report.
The three months mentioned in Article 51(1) of the American Convention
are the deadline for submitting a case to the Inter-American Court, which is the
basis for the IACHR’s practice of establishing a more brief period before
issuing its final report.
This practice is also based on the interpretation of the aforementioned
Articles by the Inter-American Court:
second stage is regulated by Article 51. If
within the period of three months, the State to which the preliminary report was
sent has not resolved the matter by responding to the proposal formulated
therein, the Commission is empowered, within that period, to decide whether to submit the case to the
Court by means of the respective application or to continue to examine the
three months are counted from the date of transmittal of the Article 50 report
to the State concerned, and the Court has clarified that the time limit, though
not fatal, has a preclusive character, except in special circumstances, with
regard to the submission of the case to this Court, independent of that which the Commission gives the State to fulfill its
The Inter-American Court has clearly established that the above mentioned
Articles pertain to two different reports.
Also, the text of Advisory Opinion OC-13/93 determines that the deadline
for the State to submit information on the measures adopted in compliance with
the preliminary Article 50 report is different form the one provided for under
Article 51; the latter is the deadline for the IACHR or the State to send the
case to that tribunal. The
Commission established the period in its Report 138/99 under this legal
framework and in accordance with the procedural practice set forth supra,
and therefore the reference of the Salvadoran State to an alleged “restriction
of legal periods” is groundless.
Finally, the Commission would like to recall that it has indeed addressed
the importance of peace not only in El Salvador, but in every State that suffers
the consequences of armed violence.
It must also be completely clear that the instant report pertains to an
individual case which has been processed and decided pursuant to the American
Convention and the Commission’s Regulations.
The considerations of a general nature on the situation of a given State
may in no way be used to prevent a decision on an individual case by the IACHR.
The preceding considerations are especially relevant in the instant case,
where the responsibility of El Salvador has been established in the violation of
the right to life of Monsignor Romero, followed by denial of justice which
remains uninterrupted after almost twenty years.
Also, it has been some five years since the proceedings in this case were
initiated by the Commission, a period during which the Salvadoran State has
maintained an almost absolute procedural silence, and waived tacitly its right
to contest the allegations of fact and law presented by the petitioners.
As was mentioned supra, when the State requested an extension it did not offer any
new elements regarding this case, nor did it provide information concerning its
adoption of measures with a view to complying with the recommendations in Report
Nº 138/99. Therefore, the
Commission decided not to grant the request for an extension and to approve this
report under Article 51 of the American Convention.
The IACHR concludes that the State has violated the right to life
enshrined in Article 4 of the American Convention to the detriment of the
Archbishop of San Salvador, Monsignor Arnulfo Romero y Galdámez.
In addition, by virtue of the unlawful action of its organs for the
administration of justice, the State has failed in its duty to diligently and
effectively investigate the violations alleged, and in its duty to try and
punish those responsible through an impartial and objective process, as required
by the American Convention. All
this affected the integrity of the judicial process and entailed a manipulation
of justice, with an evident abuse of power.
The result is that these crimes remain in impunity to this day, a clear
denial of justice. The State has
also violated, to the detriment of the victim’s relatives, the rights to
judicial guarantees and to effective judicial protection established at Articles
1(1), 8(1), and 25 of the Convention.
In adopting the General Amnesty Law, the State has violated Article 2 of
the American Convention. In
addition, by applying it to this case, the State has violated the right to
justice and its duty to investigate, try, and make reparations, established in
Articles 1(1), 8(1), and 25 of the American Convention, to the detriment of
Monsignor Romero's next-of-kin, the members of the religious community to which
and Salvadoran society as a whole.
Based on the analysis and conclusions of this report, the IACHR
recommends to the Salvadoran State that it:
Undertake expeditiously a complete, impartial, and effective judicial
investigation to identify, try and punish all the direct perpetrators and
planners of the violations established in this report, notwithstanding the
amnesty that has been decreed.
Make reparations for all the consequences of the violations set forth,
including the payment of just compensation.
Adapt its internal legislation to the American Convention with a view to
nullifying the General Amnesty Law.
On March 13, 2000, the Commission sent Report Nº 31/00--the text of
which is above--to the State and to the petitioners, in keeping with Article
51(2) of the American Convention; and it set a deadline of one month for the
State to comply with the foregoing recommendations.
On April 13, 2000, the State sent the IACHR a letter in which it set
forth its opinion on the commemoration of Monsignor Romero’s assassination,
and the impact of this crime on Salvadoran society.
The State also expressed several considerations on the importance of the
peace process in El Salvador, and it explained its interpretation of the General
Amnesty Law in the context of that country’s constitutional law, as well as
its interpretation of norms of international law, many of which have been
analyzed and applied by the Commission in the pertinent sections of this report.
In accordance with Article 51(2), the Commission, in this phase of the
process, shall confine itself to assessing the measures taken by the Salvadoran
State to comply with the recommendations and to remedy the situation under
review. Therefore, the Commission
will proceed to consider the following information sent by the State which is
relevant to the recommendations set forth in Report 31/00:
to the first of the recommendations, the case was investigated and processed in
accordance with the Criminal and Procedural Legislation of 1974, which was in
force until April 19, 1998. On
April 20 of that year new criminal, procedural and penitentiary laws were
passed, which put in place deep changes by virtue of a “mixed system”
leaning more on the role of the accusation.
The preceding information shows that there is a legal impossibility for
compliance, in the terms expressed by the Commission, since the lamentable event
took place 20 years ago, and the statute of limitations precludes criminal
basis for assigning responsibility is the Truth Commission, which limited itself
to establishing considerations on the participation of other people in the
events, but by its own nature it did not mention the sources of investigation
that led them to such conclusions, and which may have provided grounds for
proceeding against those whom it did mention.
Truth Commission report is not a juridical document which may be utilized as
evidence, since that was not its function, but rather to provide examples of
violent situations which happened in the country, as a way of avoiding the
repetition of such situations in the future.
small extract of that report’s epilogue follows: “One way or another, blame
for this can be attributed to a complex web of events in El Salvador’s history
and to unique circumstances in world history, so that it would be unfair to
assign it to a particular individual, organization or party”.
the second and third recommendations, there does not seem to be an adequate
comprehension of the grounds and motives which were present in El Salvador,
where the will of a society traumatized by a conflict that had recently ended,
was to follow the pacifist initiatives in place and to reach national
reconciliation. In this sense, the
Amnesty Law of 1993 is not only based on the Law, but it is the response which
was needed by a part of the national population. (sic)
The Commission considers it appropriate to recall what it expressed
previously on the importance of peace,
which must be built on the basis of justice, the investigation of human rights
violations and the punishment of those responsible. The preceding information
shows that the Salvadoran State has not adopted the necessary measures to comply
with the recommendations issued in this report.
It must be noted also that the Salvadoran State did not exercise its
right to present observations on Report Nº 138/99 on the merits, adopted under
Article 50 of the American Convention; nor did it respond to the repeated
requests for information made to it by the Commission during the processing of
the instant case.
and pursuant to Articles 51(3) of the American Convention and 48 of the IACHR
Regulations, the Commission decides: to reiterate the conclusions and
recommendations contained in Chapters VII and VIII supra;
to publish this report; and to include it in the IACHR’s Annual Report to the
General Assembly of the OAS. Pursuant
to the provisions contained in the instruments governing its mandate, the
Commission will continue to evaluate the measures taken by the State of El
Salvador with respect to those three recommendations, until the State has fully
complied with them.
Approved by the Inter-American Commission on Human Rights on April 13, 2000. (Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan E. Méndez, Second Vice-Chairman; Marta Altolaguirre, Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, Commissioners.
Judicial file, folio 895.
Judge Ramírez Amaya had to flee El Salvador after receiving several death
threats and an assassination attempt on March 27, 1980 (folio 73 of the
file). This assassination
attempt came three days after the extrajudicial execution of Monsignor
Romero (folio 750 of the proceedings).
The autopsy report appears at folios 32-33 of the judicial file.
See Truth Commission Report, note 391.
Witness statement by Sister María Clelia Flores Iraheta (known as Mother
María del Socorro Flores), folios 231-245 of the judicial file.
The order of the Investigative Commission says:
"Having obtained, in the process of the investigations carried
out by the Executive Unit, information provided by a source who is Mr.
Amado Antonio Garay Reyes, he could provide information helpful to clarify
the death of Monsignor Oscar Arnulfo Romero y Galdámez, it is ordered
that he be located, wherever he may be, and that his statement be taken as
a witness." (Folio 273
of the judicial file.)
Witness statement by eyewitness Amado Antonio Garay at folios 274-276 of
the judicial file.
Folio 335 of the judicial file.
Folio 336 of the judicial file.
Ruling of the Fourth Criminal Court of San Salvador of March 31, 1993.
The judge stated as follows:
offense in itself, aggravated homicide, is a common crime, but the
consequences of that death, no doubt, have left a mark on our society,
insofar as the effects and aims derived therefrom were political, which
all Salvadorans have perceived in the course of the armed conflict, thus
no one can fail to acknowledge, looking at the current juncture, that with
the victim's charisma among broad sectors of society in our country, with
whom he had come to identify, indeed he was even called "THE VOICE OF
THE VOICELESS," and (in) whom mainly the poor found consolation,
which earned him great respect and leadership, within that movement that
came about in late 1979 and early 1980, and which was sought to be
beheaded with his homicide.
to fail to acknowledge that the death of Monsignor Oscar Arnulfo Romero
had a political aim is to divorce oneself from reality, because it shook
up all sectors of national and international life, and in several periods
throughout the armed conflict it went beyond the legal sphere into the
sphere of politics.
with the foregoing, the conduct attributed to Captain Alvaro Saravia or
Alvaro Rafael Saravia Marino in this crime falls under the conditions of
Article 2 and Article 4(c) of the Law on General Amnesty for the
Consolidation of Peace, therefore, pursuant to Article 275 Section 5 ff.
of the Code of Criminal Procedure in relation to Article 119, Section 2 of
the Criminal Code, the charges against Captain Alvaro Saravia or Alvaro
Rafael Saravia Marino for the aggravated homicide of Monsignor Oscar
Arnulfo Romero are hereby dismissed with prejudice.
He shall remain free without any need for bond, as his provisional
detention has been revoked.
Truth Commission Report, p. 135.
For example, the "Cuadro
General de la Organización de la Lucha Anti-Marxista en El
Ruling of the Fourth Criminal Judge of San Salvador, supra.
Certification granted by Mr. Wilfredo Hernández Calderón, Secretary of
the First Criminal Chamber of the First Section, Central, San Salvador,
Official note Nº 304, Saca Nº 85, May 25, 1993.
Witness statement by Roberto Antonio Martínez, brother of the disappeared
eyewitness, folios 584 ff. of the judicial file.
Id., folio 585 of the judicial file.
See folio 750 of the judicial file.
For example, La Opinión,
January 1978, Nº 15, published the following headlines on the front page:
"Human Rights Commission will investigate Monsignor
Romero," "The Danger of Marxist Infiltration in the
Church," "There is talk of Christian Charity at the same time as
a call to class struggle." La
Opinión of April 1978, Nº 22, published in large letters the title
"Monsignor Romero prepares Terrorist Acts."
Monsignor Romero constantly denounced the "institutionality"
of the violence and took up the defense of the victims.
He attributed this to the closed attitude embraced by the
"extremes" in fighting over and defending their ideas.
For the Archbishop, and for the Church itself, the conflict had
become a fratricidal struggle between the most extreme positions in the
country. Oscar A. Romero,
interview with the newspaper La
Nación of Costa Rica, 1980. This
situation began to lead radicalized sectors to desperation, as they began
to ask themselves about the opportunity to eliminate Monsignor Romero at
an opportune moment. This is
indicated by one of the death threats he received from the Unión Guerrera Blanca (White Warriors Union):
"You, Monsignor, are at the head, as part of the group of
clerics who at any moment will receive some 30 projectiles in the face and
chest." (Appendix 3:
on death threats to Monsignor Romero).
By late 1979, Monsignor Romero knew the imminent danger that
stalked him, and often made reference to it:
"I have said that the danger for me exists ... but I want to
assure you, and I ask for prayers to be faithful to this pledge:
that I will not abandon my people, but I will assume, with the
people, all the risks that my ministry requires of me...."
(See Homily of November 11, 1979, Su
Pensamiento VII, p. 431). All
this contributed to thinking that his life was in imminent danger; later
events confirmed those fears.
See folios 456-453; 435-500 of the judicial file.
Confidential Official note Nº 0125, from Second Lieutenant José Ramón
Campos Figueroa to the Chief of the Department of Police Investigations,
of March 14, 1986, reporting on the event and on the details of the
deactivation of the explosive device (folios 495 ff. of the judicial
Folio 437 of the judicial file.
Unnumbered official note, folio 449 of the judicial file.
The Office of the Public Prosecutor, for its part, did not carry out its
obligation to initiate and give impetus to the criminal action aimed and
placing on trial and convicting the persons responsible.
One of the witnesses, Father Fabián Conrado Amaya Torres, declared
that "Mr. Héctor Dada Irezi had given Monsignor Romero a list in
which he was in fourth place for assassination, with his name appearing
after that of Mario Zamora," ... "that Mr. Dada warned Monsignor
to be careful, which led him to suspend a trip he was going to make to the
Republic of Guatemala ... that they also noted that days before Monsignor
was assassinated, he tried to distance himself from his friends, perhaps
so that nothing would happen to them, and moreover he no longer slept
where he had customarily done so...."
(Witness statement by Father Fabián Conrado Amaya Torres, folio
592 ff. of the judicial file). Mr. Dada Irezi was at that time a member of the Government
Communication of March 27, 1980, by Inspector Francisco Sánchez Escobar
to the Commander of the Company of Detectives (folio 74 of the judicial
"Monseñor Oscar Arnulfo
Romero, Arzobispo y Mártir, su Muerte y Reacciones," (Monsignor
Oscar Arnulfo Romero, Archbishop and Martyr, his Death and Reactions to
it), pp. 186-192, folio 223 of the judicial file.
Truth Commission Report, Finding Nº 3,
Judicial summons of November 27, 1982, folio 110 of the judicial file.
Judicial file, folio 139.
Truth Commission Report, “The official investigation”,
Judicial file, folio 753. Guerrero
was reinstalled as Public Prosecutor in December 1985, after the Supreme
Court of Justice determined that his dismissal had been unconstitutional,
see folio 743 of the judicial file.
IACHR, Reports Nº 28/92 (Argentina) and Nº 29/92 (Uruguay), Annual
Report of the IACHR 1992-93; Reports Nº 36/96 (Chile) and Nº 34/96
(Chile), Annual Report of the IACHR 1996; Report Nº 25/98 (Chile), Annual
Report of the IACHR 1997; Report Nº 1/99 (El Salvador), Annual Report of
the IACHR 1998.
IACHR, Report Nº 36/96 (Chile), para. 78; Report Nº 34/96 (Chile), para.
76; Report Nº 28/92 (Argentina), para. 41; and Report Nº 29/92
(Uruguay), para. 51.
IACHR, Reports Nos. 28/92 and 29/92, supra.
United Nations, The Administration of Justice and the Human Rights of
Detainees, "Question of the Impunity of Perpetrators of Human
Rights Violations (Civil and Political)," E/CN.4/Sub.2/1997/20/Rev.
1. That report was prepared
by Louis Joinet, pursuant to Resolution 1996/119 of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities, of the UN
Commission on Human Rights.
Id., pp. 13-15.
Inter-American Court of Human Rights, Case of Loayza Tamayo, Reparations,
Judgment of November 27, 1998, para. 168.
Inter-American Court of Human Rights, Case of Paniagua Morales et
al., Judgment of March 8, 1998, para. 173.
See also, Case of Loayza Tamayo, supra,
IACHR, Report on the Situation of Human Rights in El Salvador, supra, pp. 78-79. In
the case of the "Las Hojas Massacre," the IACHR referred to the
General Amnesty Law approved by the Legislative Assembly of El Salvador on
October 27, 1987. Like Decree
486 of 1993, that law had granted a "full and absolute amnesty"
to the perpetrators and accomplices of political crimes or common crimes
related to political crimes, or common crimes in which no less than 20
persons participated, committed as of October 22, 1987.
As the IACHR stated in that report, the law had the effect of
eliminating "the possibility of an effective investigation and the
prosecution of the responsible parties, as well as proper compensation for
the victims and their next-of-kin by reason of the civil liability for the
crime committed." IACHR Annual Report 1992-93, Report Nº 26/92, Case 10,287,
"Las Hojas Massacre," El Salvador, para. 11.
Decree Nº 486 of March 20, 1993, published in the Diario Oficial Nº 56,
Volume 318, of March 22, 1993.
In addition, that article establishes that the amnesty granted
extinguishes civil liability in all cases.
Decree 486, Article 1, supra,
note 26. See also Report Nº
The effects of the General Amnesty Law are set forth in its Article
4, which provides that persons convicted should be released immediately.
In the case of persons facing trial, the law establishes that the
charges were to be dismissed and "in the case of individuals against
whom no court proceedings have been conducted, the present decree shall
mean that if at any time proceedings are instituted against them for the
crimes covered by this amnesty, they may move for extinction of criminal
action and request dismissal with prejudice."
See Article 11 of the Inter-American Convention to Prevent and Punish
Torture; Article V of the Inter-American Convention on Forced
Disappearance of Persons; and Article 8 of the United Nations Convention
Against Torture and other Cruel, Inhuman, or Degrading Treatment or
Inter-American Court of Human Rights, Advisory Opinion OC-13/93, paras. 26
Inter-American Court of Human Rights, Case of Castillo Petruzzi et al.,
Judgment of May 30, 1999, para. 207.
IACHR, Annual Report 1997, Report Nº 30/97 (Case 10,087, Gustavo
Carranza), Argentina, paras. 42-44 and 63.
In accordance with the jurisprudence of the Commission set forth in
that case, where application of the political question doctrine has the
effect of impeding a merits decision of a claimed violation of fundamental
rights, this could constitute a violation of the right to effective
judicial protection guaranteed by the American Convention.
IACHR, Report 1/99 supra.
In that report, the IACHR concluded that by applying the Amnesty
Law (Decree 486), which is the same applied in the instant case, the state
had violated, to the detriment of the victims and their next-of-kin, the
right to judicial guarantees (Article 8 of the American Convention),
effective judicial protection (Article 25 of the Convention), the duty to
investigate (Article 1(1) of the Convention), and the right to the truth
(Articles 1(1), 8, 25, and 13 of the Convention).
Consequently, the IACHR recommended that the state carry out an
exhaustive, swift, complete, and impartial judicial investigation of the
events alleged and that it judge and punish all persons responsible,
despite the amnesty decreed. In
addition, the Commission recommended that reparations be made for the
consequences of the violation of human rights, and that the victims be
paid fair compensation.
See IACHR, Annual Report 1996, Report Nº 36/96, Chile, para. 53; Annual
Report 1997, Report Nº 25/98, Chile, paras. 72 to 84.
IACHR, Report Nº 1/99, supra,
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 166, Case of Godínez Cruz, Judgment of
January 20, 1989, para. 175. See
also IACHR, Annual Report 1998, Report 1/99, para. 148.
Id., Case of Velásquez Rodríguez, para. 174.
Id. Case of Godínez Cruz, para. 184.
See also IACHR, Annual Report 1998, Report Nº 1/99 (Parada Cea),
El Salvador, id., para 148; Annual Report 1997, p. 540, para. 70; Report
Nº 25/98 (Chile) and Reports Nos. 28/92 (Argentina), pp. 42-53, and 29/92
(Uruguay), pp. 162-174.
Amnesty International, amicus curiae
brief submitted to the Inter-American Court of Human Rights in the Case of
Benavides Cevallos, Ecuador, December 18, 1997, para. 61, p. 21.
Id., para. 150.
Amnesty International, Peace-Keeping and Human Rights, AI Doc. IOR
40/01/94, January 1994, p. 38. See
also IACHR, Report Nº 1/99 supra,
IACHR, Annual Report 1985-86, Chapter III “Areas in which steps need to
be taken towards full observance of the human rights set forth in the
American Declaration of the Rights and Duties of Man and the American
Convention on Human Rights”.
UN Human Rights Committee, Case Nº 1,107/1981, Elena Quinteros Almeida
and María del Carmen Almeida de Quinteros v. Uruguay; Case Nos. 146/1983
and 148-154/1983, Johan Khemraadi Baboeram et al. v. Suriname; Case
161/1983, Joaquín David Herrera Rubio v. Colombia; and Case 181/1984, A.
and H. Sanjuán Arévalo v. Colombia.
In this regard, UN Special Rapporteur Louis Joinet prepared a set of
general principles under the title “The Right to Know”:
1. The inalienable right to the truth Every society has the inalienable right to know the
truth about past events and about the circumstances and reasons which led,
through the consistent pattern of gross violations of human rights, to the
perpetration of aberrant crimes. Full
and effective exercise of the right to the truth is essential to avoid any
recurrence of such acts in the future.
Principle 2. The duty to remember A people’s knowledge of the history of their oppression is part of their heritage and, as such, shall be preserved by appropriate measures in fulfillment of the State’s duty to remember. Such measures shall be aimed at preserving the collective memory from extinction and, in particular, at guarding against the development of revisionist and negationist arguments.
3. The victims’ right to know
Irrespective of any legal proceedings, the families of the victims
shall have the right to know the truth about the fate of their relatives.
In cases of enforced disappearance or of abduction of children,
this right shall be imprescriptible.
4. Guarantees to give effect to the right to know
To give effect to the right to know, States should take the following
measures with a view to establishing extrajudicial commissions of inquiry
and ensuring the preservation of, and access to, archives of the reference
Nations, Question of the impunity of perpetrators of violations of
human rights (civil and political rights): final report prepared by
Mr. L. Joinet, pursuant to Subcommission resolution 1995/35, 20 June 1996.
Alejandro González Poblete has written on impunity and the right to know
the truth, and arrived at a series of conclusions.
These are two of them:
3. Knowledge of the truth is an inalienable right of victims, their next-of-kin, and society. The truth should be known and disseminated by effective means. When human rights violations have become endemic, or massive and habitual for prolonged periods, constituting institutionalized policies of state terrorism, separate investigations of individual cases may not be sufficient for society to have full knowledge of the cruelty and extent of the violations, and consequently give rise to a generalized response of repugnance and condemnation in society. In such situations, or when the judicial investigations have proven ineffective or incomplete, it may be useful to set up truth commissions. Making their crimes public is the sanction most feared by the direct perpetrators and masterminds of grave attacks on human rights.
4. In those exceptional cases in which amnesties cannot be avoided, they cannot exempt liability for grave crimes, in keeping with the general principles of law recognized by the international community. The amnesty can only extinguish criminal liability. The possibility of prosecution for administrative and political liability must always be preserved.
González Poblete, La superación
de la impunidad como requisito del Estado de Derecho, (Overcoming
impunity as a requisite of the rule of law)
"Presente y futuro de los derechos humanos: Ensayos en honor a Fernando Volio Jiménez,"
Inter-American Institute of Human Rights, 1994, pp. 69-70. (unofficial
See, in this regard, Juan Méndez, Responsabilización
por los abusos del pasado, (Responsibility for the abuses of the
past) published in "Presente y
futuro de los derechos humanos”, supra,
pp. 75-104. (unofficial translation)
Pedro Nikken, op. cit., 1998,
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Judgment of July 29, 1988, para. 174.
The Truth Commission Report indicates:
"the Commission thought it important that the parties had
emphasized that 'the Commission shall not function in the manner of a
judicial body" (Methodology, p. 22).
In other words, not only did the parties not establish a court or
tribunal, but they made it very clear that the Commission should not
function as a jurisdictional organ.
See Annex to the Mexico Agreements, April 27, 1991. In this annex, the parties recognize the need to “clear up
without delay those exceptionally important acts of violence” and agree
to do it “through a procedure which is both reliable and expeditious and
may yield results in the short term, without prejudice to the obligations
on the Salvadoran courts to solve such cases and impose the appropriate
penalties on the culprits."
On November 16, 1989, members of the Armed Forces of El Salvador executed
six Jesuit priests, Ms. Elba Julia Ramos and her daughter Celina Mariceth
Ramos, a minor; the IACHR published the report on that case on December
22, 1999. See IACHR, Report
Nº 136/99 (Case Nº 10.488 – Ignacio Ellacuría, S.J. and others), El
Salvador, December 22 1999, paras. 241 to 245.
The municipal and parliamentary elections took place on March 12, 2000.
Report 31/00 regarding this case, approved pursuant to Article 51
of the American Convention, was forwarded to the State and to the
petitioners, on a confidential basis, on March 13, 2000.
In the interest of more clearly defining procedural stages, the Commission
has included in recent merits reports on cases, a chapter that reflects
the actions that took place after the Article 50 report, as well as a
final chapter under the title ”Publication”
which lays out the proceedings that were carried out in this stage. The instant report follows such practice of the Commission.
See also, IACHR 1998 Annual Report, Chapter III.E (Merits reports
on individual cases).
I-A Court, Advisory Opinion OC-13 of July 16 1993, “Certain attributes
of the Inter-American Commission on Human
rights (Arts. 41, 4246, 47, 50 and 51 of the American Convention on Human
Rights)” requested by the Governments of the Republic of Argentina and
the Oriental Republic of Uruguay, paras. 50 y 51.
At the end of the internal armed conflict in El Salvador, the Commission
has been said so many times before, peace is much more than the absence of
war. With the signing of the Chapultepec Agreements and their slow but
steady implementation, El Salvador has taken a major step toward peace and
has overcome the most pressing obstacles; it has put and end to the armed
conflict which has sapped the country for twelve long years.
Today, the entire Salvadoran population is playing a role in its
institutional recovery. For
this reason, in furtherance of its functions and authorities, the
Inter-American Commission on Human Rights continues to monitor closely the
evolution of the situation and will promote respect for human rights, its
paramount mission under the American Convention.
though, as noted, there have been obstacles to the complete fulfillment of
the Peace Agreements, considerable progress has been achieved and deserves
to be applauded as a model of commitment and to encourage the pursuit of
genuine democracy in El Salvador.
is the Commission’s desire that the present attitude of cooperation on
the part of the Government of El Salvador will enable the many individual
cases that the Commission is now processing to be concluded swiftly,
through the administration of justice and the implementation of the
necessary corrective measures in respect of all those events denounced
during the period of conflict..
1992-1993 Annual Report, OEA/Ser.L/V/II.83 doc. 14, March 12 1993, pp.
182, 183, 187 and 188. The
Commission made similar considerations in its Report on the situation of
human rights in El Salvador, cited supra,
in which it also established the incompatibility of that country’s
Amnesty Law with the international obligations freely assumed when
ratifying the American Convention. More
recently, the IAHCR has addressed the importance of peace negotiations in
its reports on the situation of human rights in Mexico (1998) and Colombia
In previous cases, the IACHR has ruled on the effect that the harassment
of religious leaders has on their communities.
See, in that regard, IACHR, Annual Report 1996, Report Nº 31/96
(Case 10.526 - Dianna Ortiz), Guatemala, paras. 118 y 119; Annual Report 1998, Report Nº 49/99 (Case 11.610 – Loren
L. Riebe et. al.), Mexico,
paras. 98 to 105; and Annual Report 1999, Report Nº 136/99 (Case 10.488
– Ignacio Ellacuría, S.J. et al),
paras. 232, 239 and 240.
Report 31/00 was reproduced partially in the media, without authorization
from the IACHR. This was
deplored by the Commission in its Press Release Nº 4/00 of March 30,
The State said, inter alia:
twentieth anniversary of the death of Monsignor Romero was celebrated in
March and coincided with the approval of the aforementioned report by the
Commission. His death sparks
profound national sensibility and, no matter how special it may be, it is but one of
thousands of cases of Salvadorans of different conditions who perished
violently during the generalized crisis suffered by El Salvador, as a
consequence of the painful armed conflict which lasted twelve years and
brought about extreme violence, political and ideological extremism,
destruction and death, which affected the most elemental rights of the
Salvadoran people and turned our country into a hot spot of Cold War
tension. This convulated
stage was ended by the will of the Salvadorans, by virtue of the signing
of the Peace Accords on January 16, 1992, which finalized the fraticidal
internal conflict that had affected and polarized Salvadoran society.
See paragraph 155 supra.
See paragraphs 152 and 156 supra.