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Continued....
166.
In this respect, the IACHR wishes to note that in any case, mere sympathy
for the cause of one of the parties is not tantamount, nor can it be equated, to
engaging in acts of violence that constitute a real and immediate threat to the
adversary.
Therefore, even if statements about the victims’ alleged sympathy for
the armed dissidents were true, the Army members had no right to treat the
victims in this case as legitimate targets of attack.
167.
As early as 1978, in its report on the Human Rights Situation in El
Salvador, the IACHR reported that authorities of the Catholic Church in El
Salvador had informed it that the government, as well as organizations enjoying
official favor, were systematically and seriously harassing monks, priests and
lay persons in the pursuit of their activities as part of the church's social
action program. The church
authorities moreover had reported that, as a result of activities of the church
in general, and of the bishops in particular, they were being publicly attacked
for presumed links to terrorism and subversion.
168.
The foregoing led the IACHR to conclude in its Report on the Human Rights
Situation in El Salvador that these persons "had been the object of
systematic persecution on the part of the authorities and of organizations
enjoying official favor". In
that report, the IACHR recommended that the Salvadoran State should take
"all steps necessary to prevent continued persecution of members of the
Catholic Church in the legitimate exercise of their pastoral mission".
169.
On the basis of considerations of fact and law as set out above, the
IACHR concludes that agents of the Salvadoran State violated the right to life
enshrined in Article 4 the American Convention, and the principles codified in
common Article 3 of the Geneva Conventions, to the prejudice of the Jesuits
priests Ignacio Ellacuría, Ignacio Martín-Baró, Segundo Montes, Armando
López,
Joaquín López y López and Juan Ramón Moreno, and Mrs. Julia Elba Ramos, who
was employed as a cook, and her daughter Celina Mariceth Ramos, a minor.
2.
The duty to investigate and punish (Article 1(1) of the American
Convention)
170.
The Inter-American Court has established that the obligation undertaken
by states to guarantee the free and full exercise of the rights recognized in
the American Convention, in its Article 1(1), must be understood in the
following terms:
…the duty of the States Parties to
organize the governmental apparatus and, in general, all the structures through
which public power is exercised, so that they are capable of juridically
ensuring the free and full emjoyment of human rights. As a consequence of this obligation, the States must prevent,
investigate and punish any violation of the rights recognized by the Convention,
and moreover, if possible attempt to restore the right violated and provide
compensation as warranted for damages resulting from the violation.
171.
The Court has also declared that:
The State has a legal duty to take
reasonable steps to prevent human rights violations and to use the means at its
disposal to carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate
punishment and to ensure the victim adequate compensation.
If the State apparatus acts in such a
way that the violation goes unpunished and the victim´s full enjoyment of such
rights is not restore as soon as possible, the State has failed to comply with
its duty to ensure the free and full exercise of those rights to the persons
within its jurisdiction.
172.
With respect to the manner in which the obligation to investigate must be
fulfilled, the Inter-American Court has specified that:
The duty to investigate…must be
undertaken in a serious manner and not as a mere formality,
preordained to be ineffective.
An investigation must have an objective and be assumed by the State as
its own legal duty, not as a step taken by private interests that depends upon
the initiative of the victim or his family or upon their offer of proof, without
an effective search for the truth by the government.
173.
In considering whether the State has fulfilled its international
obligation to investigate seriously with the means at its disposal the violation
of human rights alleged in the present case, the IACHR will examine the
investigation conducted in light of the criteria established in the "principles governing the effective prevention and investigation of
extralegal, arbitrary or summary executions", which were adopted by the
Economic and Social Council of the United Nations in resolution 1989/65.
174.
According to these principles, the
investigation of cases of this nature must be aimed at determining the cause,
manner and time of death, the person responsible and the procedure or practice
which might have led to the events. As well, there must be a proper
autopsy performed, all material and documentary evidence must be gathered and
analyzed, and statements must be taken from witnesses.
The investigation will distinguish between death from natural causes,
death by accident, suicide and homicide.
175.
These principles have been supplemented by the adoption of the "Manual
on the effective prevention and investigation of extralegal, arbitrary or
summary executions",
according to which the principal objective of an investigation is
"to discover the truth surrounding the events that led to the suspicious
death of the victim", which states that
the principal objective of an investigation is to "ascertain the truth
about events leading to the suspicious death of a victim". The Manual
provides that the persons conducting the investigation must take the following
minimum steps:
(a) Identify the victim;
(b) Recover and preserve probative
elements related to the death in order to assist in any future trial of the
persons responsible;
(c) Identify any possible witnesses
and obtain statements from them concerning the death;
(d) Determine the cause, manner,
place and time of death, as well as any modality or practice that might have led
to the death;
(e) Distinguish between natural
death, accidental death, suicide and homicide;
(f) Identify and apprehend the
person or persons who might have participated in the execution;
(g) Bring the perpetrator or
perpetrators suspected of having committed a crime to a competent court
established by the law.
176.
In order to guarantee that an exhaustive and impartial
investigation of an extralegal, arbitrary or summary execution will be carried
out, the manual provides that "one of the most important aspects of [the
investigation] is the gathering and analysis of the evidence".
Consequently, "the persons responsible for the investigation of a presumed
extrajudicial execution must also have access to the place in which the corpse
was discovered, as well as to the place in which the death might have
occurred". According to the standards established in the Manual, the
procedure for gathering evidence must fulfil certain criteria, some of which are
listed below:
(a) The area surrounding the corpse
must be secured. Access to the area must be permitted only to investigators and
their staff;
(b) Color photographs of the victim
must be taken, since, in comparison with black and white photos, color
photographs may reveal in greater detail the nature and circumstances of the
death of the victim;
(c) Both the interior and exterior
of the place must be photographed, as well as any physical evidence;
(d) A record must be made of the
position of the corpse and of the condition of the clothing;
(e) A note should be taken of the
following factors which serve to determine the time of death:
* temperature of the body (warm,
cool, cold);
* position of corpse and degree of
discoloration;
* rigidity of corpse; and
* state of decomposition.
(f)
All evidence of the existence of weapons, such as firearms, projectiles,
bullets and shells or cartridges, must be collected and preserved. Where
appropriate, efforts must be made to find the residue from shots fired and/or to
detect metal fragments.
177.
According to the investigation conducted by the Truth Commission, the
statements of the former prosecutors for the case, and the body of evidence that
the IACHR has in the file, the investigation conducted as part of the judicial
process does not satisfy the minimum standards recognized in the "manual
for the effective prevention and investigation of extralegal, arbitrary or
summary executions".
178.
In effect, with respect to the recovery and conservation of evidence
related to the deaths, the Truth Commission found in its report that the Chief
of the Criminal Investigation Commission, Lieutenant Manuel Antonio Rivas Mejía,
recommended to Col. Benavides that he destroy the barrels of the weapons used
and replace them with others to avoid identification during ballistic tests.
Col. Benavides carried out this destruction, with the assistance of
Lieutenant Colonel Oscar Alberto León Linares.
The report also established that Rivas Mejía recommended to Benavides
that he destroy the entry and exit records for the Military Academy, which might
have allowed the guilty persons to be identified.
As was mentioned above, Benavides and Major Hernández Barahona
subsequently ordered all logbooks of the Military Academy to be burned, both for
the current year and the previous one.
179.
With respect to identifying witnesses and taking statements from them,
the Truth Commission concluded in its report that the Criminal Investigation
Commission took no statement from Col. Benavides, despite the fact that the
events had occurred in the zone that was under his command.
It was also mentioned supra
that a member of the Commission, Rodolfo Antonio Parker Soto, altered witness
testimony in an attempt to suppress any mention of orders from above. As well, he eliminated references to certain officers,
including those relating to Major Carlos Camilo Hernández Barahona.
During the investigation phase, Colonels René Emilio Ponce, Juan Orlando
Zepeda, Inocente Orlando Montano and Gilberto Rubio Rubio brought pressure on
lower-ranking officers not to mention any orders from above in their testimony
before the Court. Three witnesses
retracted their first statements that had linked agents of the armed forces to
the crime.
180.
In addition, the former prosecutors for the case indicated that the
Public Prosecutor had prohibited them from attending the questioning of certain
witnesses and from cross-examining others.
181.
With respect to identifying and apprehending the persons who had
participated in the execution, the evidence examined leads as a whole to the
conclusion that entities of the State responsible for the investigation did not
identify or apprehend all the material and intellectual authors of the crime.
On the contrary, as noted earlier, the investigation was characterized by
acts of cover-up and the deliberate omission of measures that might have
identified all the persons responsible.
182.
In this respect, the IACHR considers it proven that neither the
Investigation Commission nor the Honor Commission undertook an effective
investigation of all the persons, military or civilian, involved in the events
of November 16, 1989, especially the high-ranking military officers who gave the
orders or planned the extra-judicial executions.
Both of those organs, moreover, conspired to put together a "package
of charges" and, without any grounds for this decision, to limit it to the
eight soldiers who participated in the operation, and the one higher-ranking
officer who gave the order to kill the Jesuit priests.
Col. Benavides gave the order to execute the priests as part of a
pre-conceived plan that involved officers of the High Command of the Salvadoran
Armed Forces, whose role was concealed both by the Investigation Commission and
by the Honor Commission.
183.
It is important to note that, as soon as the package of charges had been
concocted, the Investigation Commission reported to the judge that Col.
Benavides was under arrest at the headquarters of the National Guard; that the
other seven accused were being held at National Police headquarters, and that
the ninth accused, Private Jorge Alberto Sierra Ascencio, had deserted in
December 1989. The Investigation
Commission also provided the court with several pieces of physical evidence (the
M-60 machine gun, two M-16 rifles, and an AK-47 rifle) although these weapons,
in fact, remained in the hands of that Commission.
Satisfied with the success of their efforts, both the Honor Commission
and the Investigation Commission abandoned the case, and considered their work
completed.
184.
The cover-up continued throughout the criminal proceedings, in which
military witnesses uttered contradictions and failed to tell the truth, in order
to cloak their superiors with a mantle of impunity. As the Truth Commission has determined, this behavior
reflected the fact that senior officers brought pressure on lower-ranking
soldiers to make no mention during their judicial testimony of any orders they
had received from above.
185.
With respect to subjecting the perpetrator or perpetrators suspected of
having committed the executions to a competent tribunal established by law, it
is clear that this step was not taken, because the investigation was partial and
incomplete.
186.
As a consequence of the foregoing, the State also failed to fulfill its
obligation to take the necessary steps to impose the penalties provided by law
on all those responsible for the extra-judicial executions. In effect, the investigation, which was conducted with a view
to protecting certain authors of the violation of human rights, prevented all
those authors from being judicially identified and, in consequence, prevented
the corresponding penalties from being applied.
187.
In light of the Truth Commission's report and the other evidence in hand,
the IACHR concludes that the investigation of the extra-judicial executions that
was carried out by the Salvadoran State through the Investigation Commission and
the Honor Commission was not undertaken seriously or in good faith, and was
designed to protect some of the material authors and those who took the decision
to execute the victims. Moreover,
while the judicial investigation conducted by the Fourth Criminal Court was
credible and attempted to discover the truth, the policy of cover-up and
pressure adopted by higher ranking officers against those of lower rank to
protect the intellectual authors and some of the material authors meant that the
judicial investigation was completely ineffective.
In fact, and especially as a result of this cover-up campaign, the
results were limited to the "package of charges" agreed between the
Investigation Commission and the Honor Commission.
188.
By reason of the foregoing, and on the basis of the evidence examined and
the conclusions indicated, the IACHR finds that the State has failed to fulfill
its obligation to investigate seriously and in good faith the violation of the
human rights recognized by the American Convention, to identify those
responsible for the violation, and to punish them according to law, as
stipulated in Article 1.1 of the Convention.
3. The right to judicial guarantees
and effective judicial protection (Articles 8(1) and 25 of the American
Convention)
189.
Article 8(1) of the American Convention provides that "every person
has the right to a hearing, with due guarantees and within a reasonable time, by
a competent, independent, and impartial tribunal, previously established by law,
in the substantiation of any accusation of a criminal nature made against him or
for the determination of his rights and obligations of a civil, labor, fiscal,
or any other nature”.
190.
With respect to this Article, the Inter-American Court has ruled that
It
must be interpreted broadly, in a manner consistent with both the letter and the
spirit of this rule, and it must be appreciated in accordance with Article 29 of
the American Convention, according to which no provision thereof may be
interpreted to the exclusion of other rights and guarantees inherent in the
human being or that derive from the form of democratic and representative
government.
191.
Consistent with this interpretive criterion, the Court has ruled that
Article 8(1) includes the right to judicial guarantees on the part of the
victim's relatives.
Those judicial guarantees consist of an effective investigation,
prosecution of those responsible for the crimes, imposition of the appropriate
punishment and compensation for damage and injuries suffered by the relatives.
192.
For its part, Article 25(1) of the American Convention states that
Everyone has the right to simple and prompt recourse, or any
other effective recourse, to a competent Court or tribunal for protection
against acts that violate his fundamental rights recognized by the constitution
or laws of the State concerned or by this Convention, even though such violation
may have been committed by persons acting in the course of their official
duties.
193.
In interpreting this provision, the Inter-American Court has ruled that,
according to the American Convention:
States Parties have an obligation to provide
effective judicial remedies to victims of human rights violations (Art. 25),
remedies that must be substantiated in accordance with the rules of due process
of law (Art. 8 (1)), all in keeping with the general obligation of such States
to guarantee the free and full exercise of the rights recognized by the
Convention to all persons subject to their jurisdictions (Art. 1).
194.
The Court has also ruled that Article 25(1) of the American Convention
includes the principle, recognized in the international law of human rights,
that the procedural means or instruments designed to guarantee those rights must
be effective.
According to the Court, the lack of effective domestic remedies places
the victim of a human rights violation in a defenseless position, and justifies
the invoking of international protection.
195.
In the case under examination, given that the alleged violations
constitute a crime, the State had the duty to undertake an effective
investigation to identify all the authors of the violation, to prosecute them
and apply to them the corresponding legal penalties, and to undertake and pursue
criminal proceedings to their ultimate conclusion.
196.
Nevertheless, if this obligatory investigation by the State is to be
effective, it must be undertaken in good faith, and in a diligent, exhaustive
and impartial manner, and it must be designed to explore all possible
investigative avenues that will allow the authors of the crime to be identified,
and subsequently prosecuted and punished. As
has been shown in the preceding analysis, in the case under examination the
State did not take the necessary measures to prosecute all those involved nor
did it act with the dispatch and good faith required to ensure just prosecution
of the accused. Consequently, 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 legal protection as enshrined in Article 25 of the Convention.
4. The compatibility of the General
Amnesty Law with the American Convention
a.
General considerations
197.
The States parties to the American Convention have assumed the obligation
to respect and guarantee to persons subject to their jurisdiction the rights and
freedoms protected in that Convention, and to adjust their legislation in order
to ensure the effective enjoyment and exercise of those rights and freedoms
(Articles 1(1) and 2 of the Convention).
198.
Some states, in seeking mechanisms of national pacification and
reconciliation, have issued amnesty laws that leave the victims of serious human
rights violations unprotected, since they deprive them of the right to seek
justice.
199.
The compatibility of amnesty laws with the American Convention has been
examined by the Commission on several opportunities in the context of its
decisions on individual cases.
The laws examined in these cases extended impunity to serious violations
of human rights committed against persons subject to the jurisdiction of the
State party in question.
200.
The IACHR has repeatedly stated that the application of amnesty laws that
prevent access to justice in cases of serious human rights violations renders
ineffective the obligation of states parties to respect the rights and freedoms
recognized in the Convention and to guarantee their full and free exercise to
all persons subject to their jurisdiction, without discrimination of any kind,
as established an Article 1(1) of the American Convention.
In fact, such laws remove the most effective measure for enforcing human
rights, i.e., the prosecution and
punishment of the violators.
201.
In its Report on the Human Rights Situation in El Salvador, the IACHR
referred specifically to the General Amnesty Law (decree number 486 of 1993)
that concerns us here. On March 26,
1993, within the time limit that President Cristiani was allowed to veto the
recently approved amnesty law, the IACHR wrote to the Salvadoran State, in part,
as follows:
The Legislative Assembly's passage of a General
Amnesty Law on March 20, immediately after publication of the Report of the
Truth Commission, 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”.
202.
In that report, moreover, the IACHR reminded the Salvadoran State that in
1992 it had approved report 26/92 on Case 10,287, "The Las Hojas
Massacre", in which it had made several concrete recommendations to the
State in connection with this issue.
203.
For its part, the Inter-American Court has said that "states cannot
invoke existing provisions of international law as an excuse for failing to
comply with their international obligations, as has been done in the case of the
amnesty law which, in this Court's opinion, impedes the investigation and
obstructs access to justice. For
these reasons, the argument that it is impossible to comply with the duty to
investigate the facts that gave rise to the present case must be rejected.
Consequently, the State has the duty to investigate the human rights
violations, to prosecute those responsible and to prevent impunity".
The Court has defined impunity as "the overall failure to pursue the
investigation, prosecution, capture, trial and conviction of persons responsible
for violating the rights protected by the American Convention", and it has
declared that:
The State has the obligation to combat
such a situation by all the legal means at its disposal, since impunity
encourages the chronic repetition of human rights violations, and leaves victims
and their relatives totally defenseless" (Case of Paniagua Morales et
al, supra 57, para. 173).
204.
The doctrine and practice of the IACHR in the question of amnesty is
consistent with the conclusions of the study on impunity recently prepared by
Louis Joinet, United Nations Special Rapporteur on Impunity.
In his study, presented to the Human Rights Committee of the United
Nations on October 2, 1997, Joinet recommended the adoption of 42 principles
designed to protect and promote human rights through actions to combat impunity.
205.
Principle Nº 20 refers to the duty of states with respect to the
administration of justice. In this respect, Joinet says that impunity arises from the
fact that states do not fulfill their obligation to investigate these violations
and to adopt, particularly when it comes to the administration of justice,
measures to guarantee that those responsible are charged, tried and punished.
It arises also from the fact that states do not take the steps necessary
to provide victims with effective remedies, to compensate them for the damage
they have suffered and to prevent the repetition of such violations.
206.
It is important to note, as the United Nations Secretary-General did in
transmitting the Report of the Truth Commission to the Security Council, that
that report "contains
a set of recommendations that are binding on the Parties”
(the Government of El Salvador and the FMLN).
One of the recommendations made by the Truth Commission was to punish
those responsible for the grave acts investigated in that report, and to ensure
material and moral reparations to the victims and their families.
207.
Notwithstanding the foregoing, the Legislative Assembly of El Salvador
approved the General Amnesty Law, by means of Decree Nº 486 (hereafter the
"Amnesty Decree"), on March 20 1993.
It was published in the Diario Oficial, Nº 56, volume 318, on March 22,
1993, i.e., only five days after the Truth Commission had issued its report.
That decree 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 or common
crimes in which the number of persons involved is no less than twenty."
208.
The effects of the amnesty decree are established in its Article 4, which
provides that by virtue of this law, persons already convicted and being held
must be released and all pending cases dismissed; “in the case of individuals
against whom no court proceedings have been undertaken, 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 to extinguish criminal action and request
definitive dismissal". This article also establishes that the amnesty
extinguishes all civil liability.
209.
This law was adopted in order to prevent the punishment or prosecution of
serious human rights violations committed prior to January 1, 1992, including
those examined by the Truth Commission, to which the present case relates.
The effect of the amnesty extended to crimes such as summary execution,
torture and forced disappearance practiced by agents of the State.
Some of the crimes covered by this decree have been considered so serious
by the international community that they have led to the adoption of special
Conventions on the matter, and the inclusion of specific measures to avoid
impunity, including the invoking of universal jurisdiction and suspension of the
statute of limitations.
b.
Violations of the American Convention by the General Amnesty Law
1.
The duty to adopt domestic legislative measures (Article 2 of the
American Convention)
210.
Article 2 of the American Convention establishes the obligation of states
parties to adopt "such legislative or other measures as may be
necessary" to give effect to the rights and freedoms enshrined in the
Convention. This provision includes
a negative obligation, whereby states are also obliged to refrain from issuing
laws that eliminate, restrict or nullify the rights and freedoms enshrined in
the Convention, or that render them ineffective.
211.
In this respect, the Inter-American Court has established the following,
in its Advisory Opinion OC-13/93 of 16 July 1993:
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.
212.
Similarly, the Court has ruled that:
The general duty under Article 2 of the
American Convention on Human Rights implies the adoption of measures of two
kinds. On one hand, the suppression
of rules and practices of any nature that imply a violation of the guarantees
provided in the Convention. On the other hand, the issuance of rules and the
development of practices conducive to the effective observance of those
guarantees.
213.
With respect to the competence of the IACHR to establish that a law is
incompatible with the American Convention, the Court has ruled that:
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.
At the international level, what is important to
determine is whether a law violates the international obligations assumed by the
State by virtue of a treaty. This
the Commission can and should do upon examining the communications and petitions
submitted to it concerning violations of human rights and freedoms protected by
the Convention.
214.
The IACHR considers, as expressed in its Report 1/99 (Case 10,480 - Lucio
Parada Cea), El Salvador, that Decree 486 of 1993 is incompatible with the
treaty obligations of that State,
since it renders ineffective the right to justice established in Articles 1(1),
8(1) and 25 of the American Convention, and the general obligation assumed by El
Salvador to respect and guarantee the rights established in the Convention
(Article 1(1).
215.
In effect, the amnesty decree provides that all persons who have been
convicted must be released immediately, and that those against whom proceedings
are underway, or who were in any way involved in serious violations of human
rights, may not be investigated, prosecuted or punished, nor sued in the civil
courts, all of which surrounds these grave human rights violations with
impunity. Consequently, that law
legally removes the right to justice established by Articles 1(1), 8(1) and 25
of the American Convention, since it makes impossible any effective
investigation of human rights violations, or the prosecution and punishment of
all those persons involved and the reparation of damages caused.
Therefore, as the IACHR expressed with respect to this decree, "it disregards the legitimate rights of the victims'
next-of-kin to reparation. Such a measure will do nothing to further
reconciliation."
216.
Consequently, the Commission reiterates, on the basis of the preceding
considerations, that in light of the circumstances, purposes and effects of the
General Amnesty Law approved by the Legislative Assembly of El Salvador by means
of Decree 486 of 1993, that act violated the international obligations assumed
by the State upon ratifying the American Convention, because it makes possible a
"reciprocal amnesty" (without first acknowledging responsibility),
despite the recommendations of the Truth Commission; because it applies to
crimes against humanity, and because it eliminates any possibility of obtaining
adequate reparations, including financial compensation, for the damages caused.
217.
The IACHR therefore concludes that the State has violated Article 2 of
the American Convention, taken in concordance with Article 1(1) of the
Convention.
ii. The right to justice and the
obligation to investigate, prosecute and punish (Articles 1(1), 8(1) and 25 of
the American Convention)
218.
Application of the amnesty decree to the case under study resulted in the
release of the only persons who were convicted for the extra-judicial
executions. Moreover, it made it
impossible to prosecute and punish those persons identified in the report of the
Truth Commission as the intellectual authors of the extra-judicial executions.
219.
In this respect, it must be recalled that the Truth Commission found that
the decision to execute Father Ellacuría, leaving no witnesses alive, was taken
by Col. René Emilio Ponce, Gen. Juan Rafael Bustillo, Col. Juan Orlando Zepeda,
Col. Inocente Orlando Montano and Col. Francisco Elena, none of whom was
prosecuted. Moreover, Col. Oscar
Alberto León Linares, commander of the Atlacatl Battalion, who according to the
Truth Commission knew of the murders and concealed incriminating evidence, also
escaped prosecution. In this
respect, the IACHR declared in 1994, in its Report on the Human Rights Situation
in El Salvador:
The
lack of progress made in important investigations, such as the inquiries into
the Jesuits murdered on November 16, 1989, and the failure to comply with the
Commission's recommendations on individual cases, show that there are still
obstacles in the way of ascertaining the identity of those responsible for such
serious human rights violations and bringing them to justice.
220.
Under these conditions, application of the amnesty decree to the present
case ensured impunity for some of the material and intellectual authors and
violated the duty of the State to investigate, prosecute and punish them,
pursuant to Articles 1(1), 8 and 25 of the American Convention.
iii.
The
right to know the truth
221.
The right to know the truth with respect to the facts that gave rise to
the serious human rights violations that occurred in El Salvador, and the right
to know the identity of those who took part in them, constitutes an obligation
that the State must satisfy with respect to the victims’ relatives and society
in general. This obligation arises
essentially from the provisions of Articles 1(1), 8(1), 25 and 13 of the
American Convention.
222.
As the IACHR has noted, Article 1(1) of the American Convention
establishes that the States parties are obliged to respect the rights enshrined
in the Convention, and to guarantee their full and free exercise. This
obligation implies, according to the Inter-American Court, real obligations on
the part of the State to provide effective guarantees for such rights.
As a consequence of this obligation, the Salvadoran State has the
juridical duty to take all reasonable steps to prevent violations of human
rights, to investigate with the means at its disposal any violations committed
under its jurisdiction, to identify those responsible, to impose on them the
pertinent punishment, and to ensure adequate compensation to the victims.
223.
The interpretations of the Inter-American Court in the Castillo Paez case
and other cases relating to the generic obligations of Article 1(1) of the
Convention point to the conclusion that "the right to know the truth"
arises as a basic and indispensable consequence for every State party to that
instrument, since lack of knowledge of the facts relating to human rights
violations means, in practice, that there is no system of protection capable of
guaranteeing the identification and eventual punishment of those responsible.
224.
The right to know the truth is a collective right that ensures society
access to information that is essential for the workings of democratic systems,
and it is also a private right for relatives of the victims, which affords a
form of compensation, in particular, in cases where amnesty laws are adopted.
Article 13 of the American Convention protects the right of access to
information.
225.
The right to know the truth is also related to Article 25 of the American
Convention, which establishes the right to simple and prompt recourse for the
protection of the rights enshrined therein.
The existence of obstacles, de
facto or de jure (such as the
amnesty law) to access to information relating to the facts and circumstances
surrounding the violation of a fundamental right constitutes an open violation
of the right established in that article and negates remedies available under
domestic jurisdiction for the judicial protection of the fundamental rights
established in the Convention, the Constitution and domestic laws.
226.
The right to information applies not only to the relatives of the victims
directly affected by a human rights violation, but also to society in general.
As the IACHR has said with respect to the amnesty established by decree
486 of 1993:
Regardless of the problem of eventual
responsibilities, which in any case must always be individual and must be
established by due process through a pre-existing tribunal imposing punishment
consistent with the law existing at the time the crime was committed, every
society has the inalienable right to know the truth about what has occurred, as
well as the reasons and circumstances in which those crimes came to be
committed, so as to avoid a repetition of such events in the future.
In turn, no one can prevent the victims' relatives from learning what has
happened to their loved ones. Access
to the truth pre-supposes that freedom of expression must be unrestricted…
227.
The United Nations Human Rights Committee has established, on several
occasions, and specifically with respect to the violation of the right to life,
that the immediate relatives of the victim have the right to be compensated for
such violations because, among other things, they are left with no knowledge of
the circumstances of the death or of those responsible for the crime.
In this respect, the Committee has further insisted that the duty to
compensate for damages cannot be satisfied merely by offering money to the
victim’s family. The uncertainty
in which those people find themselves must first be cleared up, i.e.,
the truth must be made known, fully and publicly.
228.
An important part of the right to compensation for human rights
violations, in terms of providing satisfaction and ensuring that there is no
repetition,
is the right of any person, and of society in general, to know the full,
complete and public truth about the events that have occurred, the specific
circumstances surrounding them, and those who participated in them.
Society's right to know all about its past must be seen not only as a
means of ensuring compensation and clarification of the facts, but as a means of
preventing future violations.
229.
The IACHR considers that, despite the important contribution that the
Truth Commission made in establishing the facts surrounding the most serious
violations, and in promoting national reconciliation, the role that it played,
although highly relevant, cannot be considered as a suitable substitute for
proper judicial procedures as a method for arriving at the truth.
The value of truth commissions is that they are created, not with the
presumption that there will be no trials, but to constitute a step towards
knowing the truth and, ultimately, making justice prevail.
230.
Nor can the institution of a Truth Commission be accepted as a substitute
for the State's obligation, which cannot be delegated, to investigate violations
committed within its jurisdiction, and to identify those responsible, punish
them, and ensure adequate compensation for the victim (Article 1.1 of the
American Convention),
all within the overriding need to combat impunity.
231.
The Truth Commission for El Salvador made clear that its actions were not
of a judicial nature.
In other words, that Commission did not have the attributes of a court or
tribunal, and the judicial function was expressly reserved to the Salvadoran
Courts.
Consequently, that Commission lacked competence to mete out punishment or
to order the payment of compensation for the facts investigated and established.
232.
By virtue of the foregoing, the IACHR concludes that application of the
amnesty decree eliminated the possibility of undertaking any further judicial
investigations through the courts to establish the truth and it denied the right
of the victims, their relatives and society as a whole to know the truth.
VI. ACTIONS TAKEN BY THE STATE SINCE NOTIFICATION
OF THE ARTICLE 50 REPORT
233.
On October 13, 1998, the Commission transmitted to the State its report Nº
107/99, pursuant to Article 50 of the American Convention, giving it a period of
30 days to take the steps necessary to comply with the recommendations contained
therein. The State did not report
the measures taken to comply with those recommendations within the established
time limit, but limited itself to requesting, through note Nº 624/99 of
November 11, 1999, that that time limit should be extended to the full three
months referred to in Article 51 of the American Convention and Article 47(2) of
the IACHR Regulations.
234.
The Commission refused to grant that extension because it could find no
grounds to justify it, bearing in mind that 10 years had already elapsed since
the processing of the case began.
235.
In light of the foregoing, and the provisions of Article 51 (1and 2) of
the American Convention, the IACHR here reiterates the conclusions and
recommendations presented to the Salvadoran State in its report Nº 107/99.
VII.
CONCLUSIONS
236.
On the basis of the arguments of fact and law and the evidence in its
possession with respect to the case under examination, the IACHR concludes in
this report that:
237.
The Salvadoran State, through agents of the Armed Forces who perpetrated
the extra-judicial executions described herein,
has violated the right to life enshrined in Article 4 of the American
Convention, together with the principles recognized in common Article 3 of the
Geneva Conventions of 1949, to the prejudice of the Jesuit priests Ignacio
Ellacuría, Ignacio Martín-Baró, Segundo Montes, Armando López, Joaquín López
y López and Juan Ramón Moreno; and of Mrs. Julia Elba Ramos and her daughter
Celina Mariceth Ramos, a minor.
238.
The Salvadoran State, by virtue of the improper actions of its organs
responsible for investigation (including an ad
hoc body composed of military officers), prosecution and the administration
of justice, has failed in its obligation to conduct a diligent and effective
investigation into the violations that occurred, and in its obligation to
prosecute and punish those responsible by means of impartial and effective
procedures such as the American Convention demands.
All of these factors affected the integrity of the process and implied a
manipulation of justice, with the evident abuse and misuse of power. The result is that these crimes have gone unpunished to this
day, and justice has been denied. The
State has also violated, to the prejudice of the victims, the right to judicial
guarantees and to effective judicial protection established in Articles 1(1),
8(1) and 25 of the American Convention.
239.
The only persons found guilty by the Salvadoran courts were granted
amnesty shortly thereafter by means of the General Amnesty Law.
The intellectual authors who have been identified to date, i.e. those who
gave the order to kill the Jesuit priests, Mrs. Ramos and her daughter,
belonging to the High Command of the Salvadoran Armed Forces, were never
investigated, prosecuted or punished. As
a consequence of its approval of the amnesty law, the Salvadoran State has
violated Article 2 the American Convention.
Moreover, by applying it to the present case, the State has violated the
right to justice and has failed in its obligation to investigate, prosecute and
make reparations, as established in Articles 1(1), 8 and 25 of the American
Convention, to the prejudice of the victims' relatives and of members of the
religious and academic community to which the victims belonged.
240.
The Salvadoran State has violated the right to know the truth to the
prejudice of the victims' relatives, the members of the religious and academic
community to which the victims belonged, and Salvadoran society as a whole.
VIII.
RECOMMENDATIONS
241.
On the basis of the analysis and conclusions contained in this report,
the Inter-American Commission on Human Rights recommends that the Salvadoran
State:
1. Conduct a full,
impartial and effective investigation in an expeditious manner, consistent with
international standards in order to identify, prosecute and punish all the
material and intellectual authors of the violations determined, without
reference to the amnesty that was decreed.
2.
Make full reparations for the consequences of those violations, including
the payment of fair compensation.
3.
Adjust its domestic legislation to the American Convention and thereby
render null and void the General Amnesty Law.
IX.
PUBLICATION
242.
On November 22, 1999, the IACHR transmitted report Nº 127/99, the text
of which is presented above, to the Salvadoran State and to the petitioners,
pursuant to the provisions of Article 51(2) of the American Convention, and
granted a period of one month to the State to fulfill the preceding
recommendations. On December 20,
1999, the State sent the IACHR a communication in which it reiterated several
considerations that it had expressed during processing of the case before this
Commission relating to the origin of the General Amnesty Law, the peace process
and the current political reality in El Salvador, and its interpretation of the
constitutional provisions and of international law.
243.
In referring to the recommendations formulated by the IACHR in report Nº
127/99, the State declared:
Throughout the entire investigative
process, and the trial in which it culminated, due process has been observed and
respected, consistent with the laws of El Salvador, and the verdict of innocence
and guilt was issued by a Tribunal of Conscience which was composed of
representatives of the people, wherein the jury was not obliged to justify its
decision or to consider any factors other than its own convictions.
That trial produced the effect of RES JUDICATA for those who were
acquitted or convicted (upper case used in the original).
Unfortunately, the Truth Commission
limited itself to establishing considerations only on the role of other persons
in these actions, but by its very nature it did not say which were the
investigation sources that led them to this conclusion, and that would have
provided a basis for taking action against those indicated, which means that the
only alternative open to the judicial power was to call upon the members of the
Truth Commission to say who had given them the reports, which was contrary to
the restricted nature of that Commission, and could as well have violated the
international immunities or privileges of its members (sic).
With respect to the second and third
recommendations, giving effect to them would imply the repeal of the amnesty
law, and that would violate the precept of non-retroactivity of the law,
enshrined in the national Constitution, besides which the amnesty decree is
based in law and responded, as noted earlier, to the need to provide the
civilian population with a form of national reconciliation, in order to support
an enduring peace.
244.
The communication received from the State sets out a series of arguments
to support the statements quoted in the above paragraph.
Among other things, the State refers to the constitutional powers of the
Legislative Assembly of El Salvador to grant amnesty; Article 4 the American
Convention; and Article 6(5) of protocol II of the 1949 Geneva Convention.
It adds that the promulgation of the amnesty law "constituted a
necessary measure for overcoming the state of violence and acute confrontation
experienced by Salvadorans during the armed conflict, and for reconciling and
reuniting them within the Salvadoran family."
In the opinion of the State, "the obligation to repeal the amnesty
law under the pretext of discovering the truth is not a part of international
law and the international law of human rights".
Finally, it declares that the repeal of the law "would bring with it
the negative effects that its promulgation sought to avoid."
245.
According to Article 51.2 of the American Convention, it falls to the
Commission, at this stage of the proceedings, to evaluate the measures taken by
the State to comply with the recommendations and to remedy the violations
established. The IACHR notes that
the State has not adopted the actions necessary to comply with the
recommendations in this report. Moreover,
the information supplied by the State does not reveal any new facts nor does it
contribute any elements that, had they been supplied in a proper and timely
manner, would have modified the analysis and conclusions in this report. In effect, the Salvadoran State did not avail itself of its
right to present observations on Report Nº 107/99 on the substance of the case,
nor did it respond to Report Nº 127/99 adopted pursuant to Article 51 of the
American Convention. In any case,
the arguments of fact and of law submitted by the parties during the processing
of the case have been sufficiently analyzed by the IACHR in chapter V of this
report.
246.
By virtue of the above considerations, and the provisions of Article
51(3) of the American Convention and Article 48 of the IACHR Regulations, the
Commission decides to reiterate the conclusions and recommendations contained,
respectively, in chapters VII and VIII above; to publish this report; and to
include in its Annual Report to the General Assembly of the OAS.
The IACHR, pursuant to the provisions contained in the instruments
governing its mandate, will continue to monitor the steps taken by the
Salvadoran State with respect to the recommendations referred to, until they
have been fully carried out by that State.
Given
and signed by the Inter-American Commission on Human Rights on December 22,
1999. (Signed) Robert K. Goldman,
Chairman; Hélio Bicudo, First Vice-Chairman; Claudio Grossman, Second
Vice-Chairman; Commissioners: Alvaro Tirado Mejia and Carlos Ayala Corao.
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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).
This report was prepared by Louis Joinet, pursuant to resolution
1996/119 of the Subcommittee on Prevention of Discrimination and Protection
of Minorities, of the United Nations Human Rights Committee.
See also report 1/99 (El Salvador), Parada Cea, supra
note 18, para. 109..
See Article 11 of
the American Convention to Prevent and Punish Torture, and Article V of the
Inter-American Convention on the Forced Disappearance of Persons; Article 8
of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment and Punishment.
IACHR Report 1/99.
In that case, the Commission concluded that, on the basis of the
application of the amnesty law (Decree 486), which is the same as that
applied to the present case, the State had violated, to the prejudice of the
victims and their families, the right to judicial guarantees (Article 8 of
the Convention), the right to effective judicial protection (Article 25 of
the Convention), the obligation to investigate (Article 1(1) of the
Convention) and the right to know the truth (Articles 1(1), 8. 25 and 13).
The IACHR consequently recommended to the State that it conduct an
exhaustive, prompt, complete and impartial judicial investigation of the
deeds denounced, and that it prosecute and punish all persons responsible,
despite the amnesty. Moreover,
the Commission recommended reparations for the consequences of the human
rights violation, and the payment of fair compensation to the victims.
The Court added:
The second obligation of the States Parties is to “ensure” the
free and full exercise of the rights recognized by the Convention to every
person subject to its jurisdiction. This
obligation implies the duty of the States Parties to organize the
governmental apparatus and, in general, all the structures through which
public power is exercised, so that they are capable of juridically ensuring
the free and full enjoyment of human rights.
As a consequence of this obligation, the States must prevent,
investigate and punish any violation of the rights recognized by the
Convention and, moreover, if possible attempt to restore the right
violated, and provide compensation as warranted for damages resulting
from the violation.
Velásquez Rodríguez case, Judgment of 29 July 1988,
para. 166, Godinez Cruz case, Judgment of 20 January 1090, supra note 77, para. 175. See
also Report 1/99 Parada Cea (El Salvador), supra note 18 para. 148.
See Truth Commission Report, Introduction, where
it is noted that the parties stressed that the activities of the Commission
were not jurisdictional. In
other words, the parties not only did not establish it as a Court or
tribunal, but they made it very clear that the Truth Commission was not to
function as if it were a jurisdictional institution.
See Annex to the
Mexico Accords, 27 April 1991, supra note
24, which created the Truth Commission in order to clarify
"promptly" the most important acts of violence "by means of a
procedure that will be both reliable and expeditious, and that can produce
results over the short term, without detracting from the obligations
incumbent upon the Salvadoran tribunals to decide those cases and to apply
the appropriate penalties to those responsible".
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