... continued

          a.          Irregularities in the investigation 

          87.          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.  

          i.          Evidence was neither collected nor conserved  

          88.          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.[91]  The police did not collect evidence nor did they provide the Judge any information or evidence whatsoever to help in the investigation. 

          89.          In statements made in 1982, Judge Ramírez Amaya[92]--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: 

Monsignor 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.

The 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 beginning. 

ii.       Procedural steps essential to determine the truth were not performed or were not validated 

          90.          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.[93] 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.[94] 

          91.          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.[95] 

iii.      The direct perpetrators and planners of the extrajudicial execution of Monsignor Romero were not investigated 

          92.          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.  

          93.          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 impunity. 

iv.      No proper investigation was undertaken into Captain Alvaro Saravia, and the testimony of Amado Antonio Garay, a key eyewitness, was dismissed 

          94.          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,[96] Garay Reyes stated:  

That 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;


That 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 transmission stick....


That 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.


That 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 accomplished."


That 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 driving.


That 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 Romero."


That 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....[97] 

          95.          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: 

Garay's 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.[98]... That he was given a polygraph test, i.e. a lie detector test, on which he performed satisfactorily.[99] 

          96.          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. 

          97.          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. 

          98.          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.[100]

          v.          No effective investigation was carried out into Major D'Aubuisson 

          99.          As expressed supra, Major D'Aubuisson took credit in very closed circles for having planned the assassination of the Archbishop of San Salvador[101] 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.[102]  Nonetheless, he was not duly investigated nor brought before the judicial organs of El Salvador. 

          100.          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: 

Procedurally, 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.[103] 

          101.          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.[104]   

          102.          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.

vi.      The forced disappearance of eyewitness Pedro N. Martínez was not duly investigated 

          103.          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 report.[105] 

          104.          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: 

That 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.[106] 

          105.          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. 

          vii.          The search of the Office of Legal Assistance was not duly investigated 

          106.          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.[107]  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 Monsignor Romero. 

vii.     Neither the threats received by the Archbishop of San Salvador nor the earlier attempt on his life were duly investigated 

          107.          Monsignor Romero was subjected to an insidious press campaign in which he was accused of being a terrorist and a subversive.[108]  This campaign was stepped up in the weeks prior to his death, along with threats against his life.[109]  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)[110] 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 High Altar,[111] where the Archbishop of San Salvador had officiated mass the previous day in memory of attorney Mario Zamora Rivas, assassinated by the death squads. 

          108.          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 subversives."[112]  In the opinion of the National Police, it was the first such case in El Salvador.  Even so, the grave event was not duly investigated. 

          109.          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.[113]  The Public Prosecutor answered in the negative and literally reproduced the following report, which one of the prosecutors gave him: 

DISTINGUISHED 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) 

          110.          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. 

          111.          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.[114] 

ix.      The assassination attempt against Judge Ramírez Amaya was not duly investigated 

          112.          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. 

          113.          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."[115] 

          114.          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."[116] 

          115.          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."[117] 

          116.          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."[118]  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 done separately.[119] 

          x.          The kidnapping and death of Walter Antonio "Musa" Alvarez

           117.          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 thereafter. 

          118.          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. 

b.          Conclusions as to the duty to investigate and punish 

          119.          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 carried out. 

          120.          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."[120]  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 Legislative Assembly,[121] 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. 

          121.          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. 

          122.          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 

          a.          General considerations 

          123.          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). 

          124.          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. 

          125.          The compatibility of the amnesty laws with the American Convention has been examined by the IACHR on several occasions in decisions on individual cases.[122]  The 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. 

          126.          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.[123]  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 human rights.[124] 

          127.          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.[125]  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.[126]

          128.          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. 

          129.          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: 

The 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.[127] 

          130.          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 next-of-kin."[128] 

          131.          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 Commission: 

The 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.


The 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.


Under 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."


The 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." 

          132.          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").[129] 

          133.          Notwithstanding the concern expressed in timely fashion by the IACHR, the Legislative Assembly of El Salvador adopted the General Amnesty Law[130] 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."[131] 

          134.          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.[132] 

          135.          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. 

b.       Violations of the American Convention by virtue of application of the General Amnesty Law

i.        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 Convention) 

          136.          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. 

          137.          In this respect, the Inter-American Court has formulated the following interpretation: 

A 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.


There 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.[133] 

           138.          The Court has also established that: 

The 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.[134] 

          139.          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": 

Democratic 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.


Other 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.


The 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.




The 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 Human Rights.[135]


          140.          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. 

          141.          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.[136]  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 Convention.[137] 

          ii.          The right to know the truth 

          142.          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.[138] 

          143.          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.[139]  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.[140] 

          144.          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 regard: 

The 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 carried out.[141] 

          145.          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.[142] 

          146.          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.[143]  The IACHR has held before that: 

Independently 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....[144]

          147.          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 crime.[145]  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.[146] 

          148.          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.[147]

          149.          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.[148]  The words of former President of the Inter-American Court Pedro Nikken are on point: 

The 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 negotiation.


Impunity 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.[149] 

          150.          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,[150] 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,[151] as judicial proceedings were reserved for the Salvadoran courts.[152]  Consequently, the Truth Commission lacked jurisdiction to impose sanctions or order the payment of compensation in relation to the facts investigated and established in its Report. 

          151.          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 in question. 


152.          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 communication added:


Considering 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.


The State of El Salvador wishes to highlight its preoccupation because in Case 10.488 P. Ignacio Ellacuría and others – El Salvador, [153]  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.[154]


Finally, 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. 

153.          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.[155]  This practice is also based on the interpretation of the aforementioned Articles by the Inter-American Court:  

A 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 matter…


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 first recommendations.[156]  (emphasis added) 

154.          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. 

          155.          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.[157]  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. 

156.          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. 

          VII.          CONCLUSIONS 

          157.          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.

          158.          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 he belonged[158] and Salvadoran society as a whole. 

          VIII.          RECOMMENDATIONS 

          159.          Based on the analysis and conclusions of this report, the IACHR recommends to the Salvadoran State that it: 

1.          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. 

2.          Make reparations for all the consequences of the violations set forth, including the payment of just compensation. 

3.          Adapt its internal legislation to the American Convention with a view to nullifying the General Amnesty Law. 

          IX.          PUBLICATION 

160.          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.[159]  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. [160]  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. 

161.          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: 

As 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 prosecution.


The 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.


The 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.


A 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”.


Regarding 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)


          162.          The Commission considers it appropriate to recall what it expressed previously on the importance of peace,[161] 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.[162] 

163.          Accordingly, 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.

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[91] Judicial file, folio 895.

[92] 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).

[93] The autopsy report appears at folios 32-33 of the judicial file.

[94] See Truth Commission Report, note 391.

[95] Witness statement by Sister María Clelia Flores Iraheta (known as Mother María del Socorro Flores), folios 231-245 of the judicial file.

[96] 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.)

[97] Witness statement by eyewitness Amado Antonio Garay at folios 274-276 of the judicial file.

[98] Folio 335 of the judicial file.

[99] Folio 336 of the judicial file.

[100] Ruling of the Fourth Criminal Court of San Salvador of March 31, 1993.  The judge stated as follows:

The 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.

Wanting 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.

Consistent 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.

[101] Truth Commission Report, p. 135.

[102] For example, the "Cuadro General de la Organización de la Lucha Anti-Marxista en El Salvador," supra.

[103] Ruling of the Fourth Criminal Judge of San Salvador, supra.

[104] 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.

[105] Witness statement by Roberto Antonio Martínez, brother of the disappeared eyewitness, folios 584 ff. of the judicial file.

[106] Id., folio 585 of the judicial file.

[107] See folio 750 of the judicial file.

[108] 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."

[109] Monsignor Romero constantly denounced the "institutionality" ("institucionalidad") 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.

[110] See folios 456-453; 435-500 of the judicial file.

[111] 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 file).

[112] Folio 437 of the judicial file.

[113] Unnumbered official note, folio 449 of the judicial file.

[114] 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 Junta.

[115] Communication of March 27, 1980, by Inspector Francisco Sánchez Escobar to the Commander of the Company of Detectives (folio 74 of the judicial file).

[116] "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.

[117] Truth Commission Report, Finding Nº 3, p. 138.

[118] Judicial summons of November 27, 1982, folio 110 of the judicial file.

[119] Judicial file, folio 139.

[120] Truth Commission Report, “The official investigation”, p. 128.

[121] 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.

[122] 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.

[123] 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.

[124] IACHR, Reports Nos. 28/92 and 29/92, supra.

[125] 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.

[126] Id., pp. 13-15.

[127] Inter-American Court of Human Rights, Case of Loayza Tamayo, Reparations, Judgment of November 27, 1998, para. 168.

[128] 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, para. 170.

[129] 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.

[130] Decree Nº 486 of March 20, 1993, published in the Diario Oficial Nº 56, Volume 318, of March 22, 1993.

[131] 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 1/99, supra.  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."

[132] 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 Punishment.

[133] Inter-American Court of Human Rights, Advisory Opinion OC-13/93, paras. 26 and 27.

[134] Inter-American Court of Human Rights, Case of Castillo Petruzzi et al., Judgment of May 30, 1999, para. 207.

[135] 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.

[136] 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.

[137] See IACHR, Annual Report 1996, Report Nº 36/96, Chile, para. 53; Annual Report 1997, Report Nº 25/98, Chile, paras. 72 to 84.

[138] IACHR, Report Nº 1/99, supra, para. 147.

[139] 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.

[140] 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.

[141] 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.

[142] Id., para. 150.

[143] 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, para. 152.

[144] 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.

[145] 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.

[146] In this regard, UN Special Rapporteur Louis Joinet prepared a set of general principles under the title “The Right to Know”:

Principle 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.

Principle 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.

Principle 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 period.


United 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.

[147] 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.

Alejandro González Poblete, La superación de la impunidad como requisito del Estado de Derecho, (Overcoming impunity as a requisite of the rule of law) published in "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 translation)

[148] 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)

[149] Pedro Nikken, op. cit., 1998, pp. 167-168.

[150] Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment of July 29, 1988, para. 174.

[151] 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.

[152] 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."

[153] 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.

[154] 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.

[155] 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).

[156] 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.

[157] At the end of the internal armed conflict in El Salvador, the Commission stated:

As 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.


Even 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.

It 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..

IACHR 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 (1999).

[158] 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.

[159] 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, 2000.

[160] The State said, inter alia:

The 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.

[161] See paragraph 155 supra.

[162] See paragraphs 152 and 156 supra.