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EL SALVADOR
In recent years, the Commission has had the opportunity, through
its annual reports to the General Assembly, to describe developments in
El Salvador in human rights observance, with particular emphasis on the
difficulties that have occurred in human rights enforcement. In its last
annual report, the Commission described the change that had occurred in
the relationship between the Salvadoran Government and the IACHR, which
was reflected in greater cooperation by the authorities of El Salvador
with the Commission’s work, in re-establishing the supply of
information and replies to communications that the Government had failed
to remit to the IACHR, and in the invitation extended for a special
IACHR Commission to visit the country in order to make an on-site
investigation of several claims of alleged human rights violations, of
the right to liberty and humane treatment and of the guarantees of due
process, committed against a substantial number of political prisoners.
The report also noted that important progress had been made in human
rights in the Republic of El Salvador during the period of the Report.
The progress mentioned by the Commission in the previous
paragraph included the considerable decline in the disappearance of
persons and also in the activities of the death squads; the reduction of
indiscriminate bombing of the civilian population not directly involved
in the fight; the return to El Salvador of a substantial number of
persons displaced outside its territory; the almost complete
pacification of the capital city of San Salvador; effective observance
by the Government and the security forces of their commitments with the
International Red Cross Committee to report immediately on the arrest of
persons to the office of that Committee in El Salvador, to the
Archdiocese Legal Aid Office (Tutela Legal) and the Government Human
Rights Commission; compliance with the agreement to allow such
humanitarian and human rights institutions to supervise the treatment by
security forces of persons held incommunicado, who are then subject to
Decree Law 50 that permits regular visits by the representatives of such
organizations to incommunicado prisoners starting with the eighth day of
their detention in order to verify their whereabouts, report to their
families on their detention, determine whether they have been mistreated
or tortured, and report directly to the authorities on such findings.
The progress described in the previous report has for the most
part been partially maintained during the period covered by this report,
although in other respects violations and restrictions have been found,
in some cases severe, of human rights guaranteed by the American
Convention, of which El Salvador is a party.
During the period covered by this report, an event of significant
importance is that beginning January 12, 1987, the state of emergency
that had been maintained year after year was lifted throughout the
Republic, thereby re-establishing the constitutional guarantees that had
been suspended for seven and a half years. Also lifted, first because of
the end of the state of emergency, and then because it was repealed, was
the much criticized Decree 50, although, as will be noted, the
legislation replacing it suffers from similar defects.
As a result of re-establishment of the constitutional order,
Decree Law 50 or the Law on Criminal Procedures Applicable to the
Suspension of Constitutional Guarantees, was automatically revoked,
except for cases already being tried by military courts, regarding
which, under Article 40 of that law, “when constitutional guarantees
have been re-established, cases pending before military courts will
continue to be tried by them in accordance with this law.” Moreover,
Decree Law 50, in addition to being without effect after the
re-establishment of the constitutional guarantees on January 13, 1987,
was definitively annulled on February 22, under Article 43, which set
February 28, 1985 as the end of its period of effectiveness, but this
was later extended for two more years, ending finally, as stated, on
February 22, 1987.
In order to overcome the severe deficiencies of Decree Law 50,
and taking into consideration the suggestions and recommendations that
had been made by various human rights organizations, including the
Inter-American Commission on Human Rights, the Commission to Review
Salvadoran Legislation, an organization established by the present
government, drafted a new bill submitted to President Duarte for
consideration and for submission to the General Assembly for approval.
Surprisingly, the Legislative Assembly, instead of enacting the bill
proposed by that Commission, enacted on March 11 of this year Decree Law
618, known like the previous one as the “Law on Criminal Procedures
Applicable to Suspension of Constitutional Guarantees,” a decree law
that, instead of amending Decree Law 50, is virtually identical to it.
The IACHR deplores the enactment of a new emergency procedural
law, which, like the previous one, violates elementary legal principles
and guarantees as well as international human rights rules that are
binding on the Republic of El Salvador. However, the Commission must
state that despite the implications of this decree law as an element of
intimidation and latent threat, it has not been enforced so far, so that
the constitutional guarantees have not been suspended after being
restored throughout the country on January 13 of this year. The
Commission also deeply regrets that when the deadline for this decree
law expired on September 10, it was extended to December 31, 1987.
We should also mention the confusion caused by the fact that from
February 22, 1987 when Decree Law 50 finally was annulled to March 11
when Decree Law 618 was enacted, there was a gap of several days in
which the military courts did not know whether to continue to hear the
cases they were trying under Decree Law 50 or whether they should remit
such cases to the Civil Courts responsible for trying criminal cases
under the Code of Criminal Procedures.
In addition, there was confusion about the fact that when Decree
Law 618 was enacted and entered into effect, but was not enforced
because it only applies to cases of suspension of guarantees, some
military judges who had been trying cases under Article 40 of Decree Law
50 resumed hearing those cases under Article 40 of the new Decree Law
618, which also provides that, with the re-establishment of the
constitutional guarantees, proceedings that had been left pending before
the military courts would continue to be tried by them under this latter
law. The situation described has given rise to criticism because Decree
Law 618 would be made retroactive to try alleged offenses that occurred
before it was in effect. The Commission has been informed that an appeal
has been made to the Supreme Court on this issue, which is still pending
decision.
The Commission regrets to note that, during the period of this
report, the following events seriously affected the observance of human
rights in the Republic of El Salvador:
Regarding the right to life, information from reliable sources
indicates that, while the number of persons affected by the state of
violence and warfare that still prevails in El Salvador has declined
from previous years, nonetheless, persons have continued to be seriously
affected, as shown by the following statistics: arrested by government
armed forces and later disappeared: 65 persons; disappeared, without it
being known who detained them: 40 persons; murdered by death squads: 18
persons; murders attributed to the armed forces: 80 persons; deaths from
mines and explosives, without the authorities being able to determine
the facts of these cases: 24 persons. The number of persons injured or
wounded is substantial, but exact figures on them is impossible to
obtain.
The Commission has not received serious complaints about
indiscriminate bombing of noncombatant civilians, including persons
accompanying or living with guerilla forces and giving them aid, despite
the fact that there have been 27 operations of this kind, which shows
that at least in this respect, the improvement regarding the right to
life as recorded in the Commission’s last report has continued.
However, the Commission has continued to receive complaints about the
explosion of bombs, which have caused casualties not only among armed
forced members in action, but also among members of the civilian
population, including women and children living in towns near combat
areas.
Regarding the right to personal freedom, the Commission has
continued to receive, although in lesser number, complaints about
alleged violations of that right and the constitutional guarantee that,
as noted, has not been fully re-established. In some cases, as reported,
arrests have been made only to interrogate persons, who on the second or
third day are released, but also in some cases such persons have been
arrested again. This situation has particularly affected members of
cooperatives, as indicated below.
In the area of due process judicial guarantees, the Commission
has observed a substantial improvement resulting from re-establishment
of constitutional guarantees, the repeal of Decree Law 50 and the
nonenforcement of Decree Law 618, mentioned above, because as a result,
regular civilian criminal courts have again assumed jurisdiction and
competence to try offenses that were previously tried by military
courts; the due process guarantees suspended for the state of emergency
have been re-established; the procedural rules in the Code of Criminal
Procedures have begun to be applied to persons tried for offenses
against State security; detainees are no longer held incommunicado up to
15 days, and arrested persons are, according to the law, brought before
the courts having jurisdiction, within 72 hours after their arrest, a
provision that is complied with in most cases; complaints of
mistreatment and torture of political prisoners have declined
substantially, and the extrajudicial testimony no longer has value as
evidence in political cases, and the rule contained in Article 496 of
the Code of Criminal Procedures, which reads as follows, has been
re-established:
In the political offenses referred to in Article 151 of the
Criminal Code, extrajudicial confession shall have no value as evidence.
While there has been considerable progress, as indicated above,
with regard to judicial guarantees of detained persons, nonetheless the
Commission has continued to receive some complaints about alleged
illegal removal of cases to military courts by certain military judges,
who, despite what was stated above, have tried to assume jurisdiction
over some cases that should be under the exclusive jurisdiction of
regular courts. This has occurred precisely because of the fact that
certain civilian criminal courts have remitted cases brought before them
to other courts as though they lacked jurisdiction to continue to try
such cases. This situation has been creating a veritable judicial chaos,
because it continues what is referred to as “the spirit” of the
emergency laws. Complaints about these cases are reported to be pending
decision by the highest court of the Republic, which thus far has
provided no effective resolution to the problem.
Another aspect of the legal confusion prevailing in a number of
areas of national life in the Republic of El Salvador, in connection
with the right to a fair trial and to due process, is the confusion
resulting from the lack of legal guarantees caused by the situation of
armed conflict in the country, which results from the fact that, without
either legal or constitutional protection but with the acquiescence of
representative institutions of the law, the government has had to
release on various occasions a number of political prisoners in
negotiations with the guerilla forces. When such releases have taken
place, the political prisoners set free had criminal proceedings under
way against them, were subject to the jurisdiction and competence of
judges appointed by the law and their legal status was being determined,
or they had not been sentenced. These releases, which were the result of
political and military negotiations, opened the doors of the Mariona
prison (for men) or the Illopango prison (for women), but they did not
result in a law of amnesty or pardon. Therefore, the courts trying such
cases did not know for sure where they stood, because they were informed
by the newspapers that such and such prisoners were released but with
the defendants’ legal status remaining completely undefined: the
detainees were free and their trials were suspended, but none of them
were legally regularized, which is contrary to all existing legal rules.
The most important releases in this period included a case on
February 3 of this year, in which the Salvadoran Government and the
rebel forces reached an agreement to exchange Colonel Omar Napoleón
Avalos who had been kidnapped and kept as an alleged prisoner of war,
for a considerable number of trade unionists, members of the
Nongovernmental Human Rights Commission, and FMLN militants who had been
disabled in the war.
Regarding the activities of nongovernmental human rights
organizations, the Commission regrets the harassment by organizations of
military personnel against some human rights groups such as the
Nongovernmental Human Rights Commission and the recent terrorist attack
against the Mother’s Committee (Las Comadres) site, where heavily
armed men dressed in civilian clothes, traveling in to station wagons,
exploded a bomb on May 3 at 3:00 in the afternoon, causing serious
damage to the site and wounding some of the occupants. Later, on
September 3, two members of the Mothers Committee, Lucía del Carmen
Menjivar Vásquez and Gloria Alicia Galán García, labor unionists
belonging to FMLN terrorist groups, were arrested. The first was
subsequently released, and the second was tried by the Second Criminal
Court for alleged subversive association.
Regarding the right to humane treatment, the Commission, as
reported in its last annual report to the General Assembly, started, in
cooperation with the Salvadoran Government, an investigation on the
above-mentioned case 9621, dealing with the complaints of some of the
political prisoners about alleged cases of mistreatment, torture and
lack of judicial guarantees. Accordingly, from August 11-15, 1986, a
special committee composed of the then Chairman and Vice Chairman of the
IACHR, Drs. Luis Adolfo Siles Salinas and Marco Tulio Bruni Celli,
accompanied by Executive Secretariat staff, made an on site visit to El
Salvador, and subsequently, a special mission of the Executive
Secretariat made a visit from the 15th to the 21st.
As a result of that investigation, the Special Committee
submitted a report to the Commission of the whole, which after hearing
the proposal for a friendly solution accepted in principle by the two
parties, issued at its 69th session, of March 26, 1987,
Resolution 13/87, declaring the complaint to be admissible, and formally
placing itself at the service of both parties, the claimants and those
against whom complaints were lodged, to reach a friendly solution of the
matter based on the respect for the human rights recognized in the
American Convention on Human Rights. The resolution was communicated to
the parties, and the Salvadoran Government gave them 90 days to report
on the matter to the Commission.
The IACHR is not yet able to provide information on the
investigation that it has been conducting, regarding which it has
received a reply from the Salvadoran Government. Continuing with its
role as a channel for a friendly solution, it has ordered that reply
made available to the claimants for the appropriate purposes. Salvadoran
Government’s response
The Salvadoran Government, in reply to a note requesting
information from it about the progress made in the human rights area,
has sent a telegram stating the following inter alia:
We report Decree 618 extended 31/12/87; persons arrested judged
by Penal Code, Decree 618 only applies to pending trials Decree 50.
Released by armed forces 2,316, dismissed by military judges, 519,
exchanged 88, wounded an injured abroad 115, total 3,038. New Attorney
General Roberto Girón Flores. He has established Office of Assistant
Attorney General for Human Rights. Actions carried out emphasize
punishment persons guilty human rights violations: he has reopened trial
of Monsignor Romero, the nuns, Dutch newspapermen, etc. Prisoners
detained Mariona and Illopango much better than last year. Up to August
1987, there were 518. Disappeared 1986, 161. Of those, 81 located, 80
remaining to be located. Disappeared January-July 1987, total 74, of
them 20 located, 46 not located. Women (comadres) arrested accused
belonging FMLN terrorist groups: Lucía del Carmen Menjivar Vásquez,
released May 9/87, Gloria Alicia Galán García, remanded Second
Criminal Court, detention decreed for subversive association. The case
of Jorge Salvador Obau, kidnapped by armed civilians 1/9/87, took to
unknown destination in vehicle owned by a private party, authorities are
looking for him to interrogate him about the event, armed forces deny
holding him. CDH, prosecutor’s office have started investigations to
determine his whereabouts. Public security forces are investigating
abduction.
The Salvadoran cooperative movement, according to many complaints
received by the Commission during the period of this report, has been
hounded, harassed and persecuted by the Salvadoran Government
authorities. This has resulted in a considerable number of cooperative
members arrested, mistreated, wounded and, according to reports, some
have even disappeared. The Commission much regrets having to deal with a
topic as delicate as this, and is now engaged in processing these
complaints according to its regulatory procedures.
All in all, as indicated in the Commission’s last report, the
main problem facing the Republic of El Salvador is the internal war that
started over seven and a half years ago. This, in addition to disrupting
the legal system as noted, has already caused over 63,000 deaths, severe
destruction of the country’s socioeconomic infrastructure, and many
attacks against the life and safety of the population.
In light of this situation, the Commission has always attached
special importance to and vigorously encouraged a peaceful and
negotiated solution to the conflict between the Salvadoran Government
and the rebel forces opposing it. As indicated in the last report, talks
to that end took place first in the city of La Palma on August 15, 1984,
and later in Ayaguayo on November 30 of that year. Unfortunately, these
negotiations were not continued because the third round of talks was
unsuccessful despite the efforts of the Catholic Church.
Accordingly, the Commission points out as a positive fact that
new hopes of peace have emerged, through negotiations and dialogue under
the agreement reached in the Republic of Guatemala at the recent meeting
of the Presidents of the Central American countries on August 13-16 of
this year.
In fact, according to the plan presented by the Costa Rican
President, Dr. Oscar Arias-Sánchez, the Central American presidents
have concluded an agreement establishing a 90-day period to produce a
cease-fire in the countries where internal armed struggle is taking
place, as in the case of El Salvador. Under the peace plan, the
governments in and outside the region must refrain during that period
from continuing to provide military aid to the armed groups operating in
the neutral area, and in the interior of the countries amnesties are to
be declared to promote the incorporation into the national political
activities of those who are today part of insurrectional armed groups.
The states in which some form of a state of emergency is in effect must
also lift it during the 90-day period. [ Table of Contents | Previous | Next ] |
