10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
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INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE ROCHAC HERNANDEZ AND OTHER VS. THE SAVIOR
SENTENCE OF OCTOBER 14, 2014
(Fund, Repairs and Costs)
For Rochac Hernández et al v El Salvador,
the Inter-American Court of Human Rights (hereinafter "the Inter-American Court", "the Court" or "The Tribunal"), composed of the following judges:
Humberto Antonio Sierra Porto, President; Roberto F. Caldas, Vice-President; Manuel E. Ventura Robles, Judge; Diego García-Sayán, Judge; Eduardo Vio Grossi, Judge, and Eduardo Ferrer Mac-Gregor Poisot, Judge;
present, in addition,
Pablo Saavedra Alessandri, Secretary, and Emilia Segares Rodríguez, Deputy Secretary,
in accordance with Articles 62.3 and 63.1 of the American Convention on Human Rights (hereinafter also the "American Convention" or "the Convention") and Articles 31, 32, 65 and 67 of the Rules of Procedure of the Court (hereinafter also "the Regulations"), hereby orders Judgment, which is structured in the following order:
* Judge Alberto Pérez Pérez participated in all the procedural stages of the present case. For reasons of force majeure, could not be present in the deliberation and signature of this sentence. https://translate.googleusercontent.com/translate_f 1/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
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INDEX
I INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE ...... 4 II PROCEEDINGS BEFORE THE COURT ...... III COMPETITION ...... 8 IV INTERNATIONAL RECOGNITION OF LIABILITY ...... 9 V TEST ...... 16 TO. Documentary, testimonial and expert evidence ...... 16 B. Admission test ...... 16 B.1 Admission of Exhibit ...... 16 B.2 Admission of expert testimony and ...... 17 VI FACTS ...... 18 TO...... context ...... 18 B. Events related to the forced disappearance of José Adrián Hernández Rochac ...... 20 C. Events related to the forced disappearance of Santos Ernesto Salinas ...... 24 D. Events related to the forced disappearance of Emelinda Lorena Hernández ...... 26 AND. Facts related to the enforced disappearances of Manuel Antonio Bonilla and Ricardo Ayala Abarca ...... 29 VII FUND ...... 33 VII-1 VIOLATIONS RELATED TO FORCED DISAPPEARANCES: RIGHTS TO THE PERSONAL FREEDOM, PERSONAL INTEGRITY, LIFE, RECOGNITION OF THE LEGAL PERSONALITY, TO PRIVATE AND FAMILY LIFE, TO IDENTITY, TO PROTECTION OF THE FAMILY, AND OF THE CHILDREN AND CHILDREN, IN RELATION TO THE OBLIGATIONS OF RESPECT And guarantee the rights ...... 33 TO. The forced disappearance of the girl and the children as a multiple and continued violation of human rights and the duties of respect and guarantee (articles 7, 5, 4.1 and 3 in relation to Article 1.1 of the American Convention) ...... 33 B. Rights of the girl child and children, and their families, to the protection of the family, to private and family life, and to identity (Articles 11.2 and 17 in relation to Articles 19 and 1.1 of the American Convention) ...... 35 C. The right to humane treatment of family ...... 41 VII-2 VIOLATIONS RELATED TO RESEARCH: RIGHTS TO FREEDOM PERSONNEL, JUDICIAL GUARANTEES AND JUDICIAL PROTECTION, IN RELATION TO OBLIGATION TO RESPECT RIGHTS AND ENSURING ...... 44 TO. Duty to initiate ex officio an investigation ...... 48 B. Lack of due diligence in the criminal investigations ...... 49 C...... habeas corpus ...... 54 D. Conclusion ...... 58
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VIII REPARATIONS (Application of Article 63.1 of the American Convention) ...... 58 TO. INJURED PARTY ...... 60 B. Obligation to investigate the facts that generated the violations and identify, judge and, where appropriate, punish those responsible and determine the whereabouts of the victims ...... 60 C. Restitution, rehabilitation, satisfaction and guarantees of non - repetition ...... 69 D...... compensatory allowances ...... 78 AND. Costs and expenses ...... 81 F. Reimbursement of expenses to the Fund for Victims ' Legal Assistance ...... 84 G. Method of compliance with the payments ordered ...... 84 IX PARAGRAPHS ...... 85
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I INTRODUCTION OF THE CAUSE AND OBJECT OF THE CONTROVERSY
1. The case submitted to the Court. - On March 21, 2013 the Inter - American Commission (Hereinafter "the Inter-American Commission" or "the Commission") submitted a brief (hereinafter "submission") by which it submitted to the jurisdiction of the Court the case "Rochac Hernández et al." Against the Republic of El Salvador (hereinafter "the State" or "El Savior"). The case concerns:
to) the alleged forced disappearance of children José Adrián Rochac Hernández, Santos
Ernesto Salinas, Manuel Antonio Bonilla and Ricardo Abarca Ayala 1 and the girl Emelinda Lorena Hernández, between 1980 and 1982, in circumstances with characteristics in the context of armed conflict, following the execution of military operations of the so-called "counterinsurgency", and last seen together with the members of the armed forces, who would have appropriated and supposedly disposed of their destination; Y b) the alleged failure of the State to carry out a serious and diligent investigation, in within a reasonable time, on the alleged forced disappearance of the alleged victims as mechanism to guarantee their rights, as well as to ensure the rights to the truth, justice and reparation of their relatives, as a result of which the destination or whereabouts of any of the alleged victims and the facts would be found in the impunity.
2. Procedure before the Commission. - The proceedings before the Commission was as follows:
to) Requests. - On 11 September 2003 the Pro-Search Association of Girls and Boys Disappeared (hereinafter "the representatives of the alleged victims" or "the representatives ") filed petition number 731-03 with the Commission for the alleged disappearance of the child José Adrián Rochac Hernández, petition number 732-03 for the alleged forced disappearance of the girl Emelinda Lorena Hernández, and petition number 733-03 for the alleged forced disappearance of the child Santos Ernesto Salinas. The 8 of December 2003 the Pro-Search Association of Missing Children and the petition number 1072-03 for the alleged forced disappearance of children Manuel Antonio Bonilla and Ricardo Abarca Ayala. b) Admissibility reports. - On 21 October 2006 the Commission adopted the report admissibility No. 90/06, in which it concluded that petition 731-03, referring to the child José
Adrian Rochac Hernandez admissible 2. On 5 March 2008, the Commission approved the Admissibility Report No. 11/08, in which it concluded that petition 732-03,
concerning the girl Emelinda Lorena Hernández was admissible in March. On March 5, 2008, the
1 Although in the various processes at national and international level, Ricardo has been generally surname "Ayala Abarca", for the purposes of this judgment the surname "Abarca Ayala" will be used, since in accordance with his birth certificate his first surname is Abarca. Cf. Birth certificate Ricardo Abarca Ayala issued by the Registry of the Family Status of the Municipal Mayor of Villa de San Esteban Catarina (file of evidence, volume IV, annex 23 to the submission of the case, folio 2011). 2 The Commission decided to declare the petition admissible in so far as it relates to alleged violations of human rights. protected in articles 1.1, 4, 5, 7, 8, 17, 18, 19 and 25 of the American Convention (file of proceedings before the Commission, volume III, pages 1235 to 1248). 3 The Commission decided: (a) to declare the petition admissible under articles 5, 7, 8, 17, 19 and 25 in concordance with Article 1 (1) of the American Convention; b) state in the iura novit curia admissible petition with respect to Articles 3 and 4 of the American Convention in relation to Articles 1.1 and 2 of said instrument and (c) declare that the petition is inadmissible with respect to Article 18 of the American Convention (file of proceedings before the Commission, volume I, folios 374 to 385).
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Commission approved admissibility report No. 10/08, in which it concluded that the petition
733-03, concerning the child Santos Ernesto Salinas, was admissible in April. On July 25, 2008, the Commission approved the admissibility report No. 66/08, in which it concluded that the petition 1072-03, concerning the children Manuel Antonio Bonilla and Ricardo Abarca Ayala, was https://translate.googleusercontent.com/translate_f 4/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
5 permissible. c) Accumulation of cases. - On 9 April 2010 the Commission decided to join the cases 12,646 (Santos Ernesto Salinas), 12,647 (Emelinda Lorena Hernández) and 12,667 (Manuel Antonio Bonilla and Ricardo Abarca Ayala) to case 12,577 (José Adrián Rochac Hernández), since "they deal with similar facts and reveal the same pattern of conduct". (d) Background Report. - On 7 November 2012 the Commission approved the merits report No. 75/12, in accordance with article 50 of the Convention (hereinafter also "the report "or" Report No. 75/12 "), in which it reached a series of conclusions and made several recommendations to the State: to. Conclusions. - The Commission concluded that the State of El Salvador was responsible for violation of the following rights: i. rights of recognition of legal personality, life, personal integrity, personal liberty, to judicial guarantees, to protection of the family, to the special protection of favor of children and to judicial protection, established in articles 3, 4, 5, 7, 8, 17, 19 and 25 of the American Convention, in relation to the obligations established in Article 1 (1) same instrument, to the detriment of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo [Abarca Ayala], and ii. rights to personal integrity, protection of the family, judicial guarantees and protection of established in Articles 5, 17, 8 and 25 of the American Convention, in relation to obligations established in article 1.1 of the same instrument, to the detriment of the next of kin. b. Recommendations. - Consequently, the Commission made the state a series of recommendations: i. [i] nvestigar in a complete, impartial and effective manner the destination or whereabouts [of] José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernandez, Manuel Antonio Bonilla and Ricardo [Abarca Ayala] and, if found, make the necessary efforts to ensure the family reunification. In case it were established that some of them are not alive, take the necessary measures to deliver their remains to their families [;] ii. [i] investigate the facts in a complete, impartial and effective manner to determine the responsibility and punish all perpetrators of human rights violations to the detriment of the victims of the present case, including the investigations necessary to establish liability and punish those who participated in the cover-up of the facts and in the denial of Justice[;] iii. [r] adequately address the victims of the present case so as to include both the material as immaterial [;] iv. [a] doptar the necessary measures to ensure the effectiveness and permanence for as long as it is the search commission, the search web page and the genetic resources, which are being implemented within the framework of the Inter-American Court of Human Rights in the ruling of the Serrano Cruz Sisters case. In particular, ensuring
4 The Commission decided: (a) to declare the petition admissible under articles 5, 7, 8, 17, 19 and 25 in concordance with Article 1 (1) of the American Convention; b) state in the iura novit curia admissible petition with respect to Articles 3 and 4 of the American Convention in relation to Articles 1.1 and 2 of said instrument and (c) declare that the petition is inadmissible with respect to Article 18 of the American Convention (file of proceedings before the Commission, volume I, folios 62 to 71). 5 The Commission decided: (a) to declare the petition admissible under articles 5, 7, 8, 17, 19 and 25 in concordance with Article 1 (1) of the American Convention; b) state, on the iura novit curia admissible the petition with respect to Articles 3 and 4 of the American Convention in relation to Articles 1 (1) and 2 of said Convention international instrument, and (c) declare that the petition is inadmissible with respect to article 18 of the Convention American Court (file of proceedings before the Commission, volume II, folios 884 to 897).
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that these measures be provided through legal mechanisms that allow for the safety of in its operation and with the necessary budget allocation [, and] v. [a] to adopt non-repetition measures to ensure that the comprehensive protection system for children and girls to be effectively implemented, including strengthening and international standards of the Civil Registry system and the adoption system. c. Notification to the State. - The Report of Fund was notified to the State 21 November 2012, giving him a period of two months to report on the compliance with the recommendations. and) Submission to the Court. - On 21 March 2013, in the absence of any information https://translate.googleusercontent.com/translate_f 5/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… by the State, the Commission submitted to the jurisdiction of the Inter-American Court the full facts set out in its report on the merits, "in so far as they constitute continuing violations ", and to the need to obtain justice for the alleged victims. The Commission appointed as its delegates to the Court to Commissioner Rosa Maria Ortiz and the Executive Secretary Emilio Álvarez Icaza L. and appointed as legal advisors ladies Elizabeth Abi-Mershed, Deputy Executive Secretary, Silvia Serrano Guzmán and Isabel Madariaga, attorneys for the Executive Secretariat.
3. Requests from the Inter-American Commission. - Based on the above, the Commission asked the Court to declare that El Salvador is responsible for the violation of the rights it has declared report violated its bottom 6 (supra para. 2.d). In addition, the Commission asked the Court order to the State certain reparation measures, which will be detailed and analyzed in the Chapter VIII of the present Judgment.
II PROCEEDINGS BEFORE THE COURT
Four. Notification to the State and representatives. - The submission of the case by the Commission was notified to the State and the representatives of the alleged victims on May 29 of 2013.
5. Written requests, arguments and tests. - On 24 July 2013 the representatives of the alleged victims filed before the Court a brief of pleadings, motions and evidence (hereinafter "pleadings and pleadings"). The representatives agreed substantively with the allegations of the Commission and requested the Court to declare the international responsibility of the State for the violation of the same articles alleged by the Commission and, in addition, "the violation of the right to the truth". Likewise, the alleged victims requested, through their representatives, to avail themselves of the Legal Aid Fund of Victims of the Inter-American Court (hereinafter the "Court Assistance Fund" or the "Background"). Finally, they asked the Court to order the State to adopt several measures of reparation and the reimbursement of certain costs and expenses.
6. Reply writing. - On November 11, 2013 , the State submitted to the Court its written response to the presentation of the case and observations on the brief of applications and arguments, in which he made an acknowledgment of international responsibility. The state appointed as Agents David Ernesto Morales Cruz, then General Director of Rights And Mr. Sebastián Vaquerano López, Ambassador of El Salvador in Costa Rica.
6 In the process before the Commission, the petitioners presented arguments corresponding to the alleged violation of Article 18 of the American Convention. However, in the report on the merits, the Commission considered that, although the that a common fate of missing children was the name changes, in the present case it had not been established that such circumstances actually occurred. In the procedure before the Court, the dispute did not include that aspect. Cfr. Report No. 75/12 background issued by the Commission Inter-American Conference on November 7, 2012, para. 209.
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Subsequently, the State appointed as Agent Tania Camila Rosa, Director General of Human Rights of the Chancellery, replacing Mr. Morales Cruz.
7. Assistance to the Legal Assistance Fund. - By Order of the President of 12 December 2013, the petition filed by the alleged victims was through their representatives, to avail themselves of the Assistance Fund of the Court, and approved grant the necessary financial assistance for the submission of a maximum of five
statements, either by affidavit or at the public hearing in July.
8. Observations on the recognition of international responsibility by the State. - On 16 December 2013 the Commission and the representatives submitted their observations on the recognition of State responsibility.
9. Useful evidence - On January 10, 2014 , the State submitted "documents https://translate.googleusercontent.com/translate_f 6/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Articletax file 58.b321-UMM-D-02 of the Regulation, ", as requested by means by of the notes from the Secretariat dated 12 September and 15 November of 2013.
10. Public Hearing test and adjudication. - By Order of the President of 3 8 March 2014 , The parties and the Commission were invited to a public hearing to receive their plements and oral concluding observations on the merits and possible reparations and costs in this case, respectively, at the end of the statements and expert reports. The public hearing was held on April 1, 2014, during the 50th Special Session, which
place at its headquarters in September. During the hearing, certain information and documentation requested 10. Subsequently, the Commission and the representatives were requested, as appropriate, copies of identity documents and, in case of death, a copy of the death penalty for family members who were alleged to have been victims in the case.
11. Arguments and written concluding observations. - On May 2, 2014 the State and representatives submitted their final written arguments, together with the evidence to better resolve
requested 11 and the Commission submitted its written concluding observations.
7 Cfr. Rochac Hernández and others v. El Salvador. Order of the President of the Inter-American Court of December 2013. Available at: http://www.corteidh.or.cr/docs/asuntos/rochac_fv_13.pdf 8 Cfr. Rochac Hernández and others v. El Salvador. Order of the President of the Inter-American Court of March 3 of 2014. Available at: http://www.corteidh.or.cr/docs/asuntos/rochac_03_03_14.pdf 9 This hearing was attended by: a) the Inter-American Commission: Silvia Serrano Guzmán and Erick Acuña Pereda, Lawyers of the Executive Secretariat; b) by the representatives of the alleged victims: Mirla Guadalupe Carbajal Amaya, General Coordinator of the Pro-Search Association of Missing Children and Girls, Doris Lissette Alvarado Campos y José Roberto Rugamas Morán, Abogados yc) for the State of El Salvador: Ambassador Sebastián Vaquerano López, Agent of the State, Tania Camila Rosa, General Director of Human Rights of the Chancellery and Agent of the State, and Gloria Evelyn Martínez Ramos, Director of International Systems for the Protection of the Foreign Ministry. 10 Information was requested and, where appropriate, supporting documentation, regarding the actions undertaken both in the Interinstitutional Commission and in the current National Search Commission regarding the five alleged victims of the present case; on the legislative project on the operation of the National Search Commission; about the evolution of the use of the General Amnesty Law for the Consolidation of Peace effects of limiting research from its judgment the Court in the case of the Massacres El Mozote and surrounding areas; and on the request that had been made to declassify or to provide information has been called "military archives". elevenThe State submitted the following evidence: Annex 1: Old Cuscatlán, El Salvador, May 2, 2014. Draft Legislative Decree of the National Commission for the Search of Missing Children and Children during the Armed Conflict Internal. Annex 2: Executive Decree No. 18, dated February 19, 2014, published in the Official Gazette No. 402, number 51, dated March 17, 2014, which extends the validity of the National Commission for the Search of Girls and Children Missing during the Internal Armed Conflict. The representatives forwarded a number of documents relating to
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12. Observations of representatives and the State. - The President granted a deadline for parties and the Commission to submit their comments to the annexes to the final written arguments presented by the State and by the representatives. On May 28, 2014, the parties presented their respective comments and the Commission stated that "there are no comments to make" with respect to the annexes to the final written arguments of the parties.
13. Additional proof. - On May 28, 2014, the State forwarded a "[c] ertification of proceedings of the Meanguera Peace Court in the Department of Morazán, in relation to [the] girl Emelinda Lorena Hernández ". The Chairman gave a period to submit observations. The Commission forwarded its comments on 17 June 2014 and no comments were received by the part of the representatives. Also, on September 26, 2014, following instructions from the President of the Court and in accordance with Article 58.b of the Regulations, the State was requested to submit, no later than October 7, 2014, a report from the Attorney General's Office or, where appropriate, the relevant Tax Offices in respect of criminal investigations would have opened in 2009 due to the forced disappearances of Santos Ernesto Salinas (fiscal file 908-UDV-2009 or 908-UDVSV-2009 before the Fiscal Office of San Vicente), Manuel Antonio Bonilla and Ricardo Abarca Ayala (tax file 909-UDV-2009 before the Tax Office of San Vicente), and Emelinda Lorena Hernández (tax file 908-UDVFM-2009 or 908-UDV-2009 https://translate.googleusercontent.com/translate_f 7/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… investigation,before the Fiscal the Ofproceduresfice of San carried Francisco out and Gotera), the current detailing procedural the manner status. in whichIn the thesame way, copies of those files or of the procedural proceedings incorporation into the body of evidence in this case. On October 8, 2014, the State requested a extension of 15 days for the remittance of such information. However, given the proximity of and by virtue of the recognition of State responsibility as well as the scope of the the factual framework of the merits report (infra para. 144), the Court did not consider it appropriate to grant extension requested.
14. Disbursements under the Assistance Fund. - On May 14, 2014, the Secretariat, following instructions from the President, forwarded information to the State on expenditures carried out in application of the Victims Assistance Fund in the present case and, as provided for in Article 5 of the Rules of Procedure of the Court on the Functioning of the said Fund, granted a period to the State to submit any observations it deemed pertinent. The state submitted its observations on this matter on 28 May 2014.
III COMPETITION
fifteen. The Inter-American Court is competent, under the terms of Article 62 (3) of the Convention to hear the present case, since El Salvador is a State Party to the American Convention from June 23, 1978 and recognized the contentious jurisdiction of the Court on June 6, 1978 nineteen ninety five.
16. The representatives argued that the reference case represents a new opportunity for the Court "to definitively invalidate the clause that the State of El Salvador included in its recognition of the jurisdiction of the Court with a reservation ratione temporis ".
General Amnesty Law for the Consolidation of Peace, as well as identity documents and death family members.
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17. Although the declaration of recognition of jurisdiction of the Inter-American Court includes
a temporal limitation 12, in this case the State of El Salvador, in response to acceptance of the facts made in his reply to the submission of the case and observations to the written pleadings and motions, and reiterated in its final oral and written arguments, unilaterally declared that such limitation of competition "is not enforceable or operative within the present case ". That is to say, in all the procedural stages before the Court there is a clear manifestation of the State's willingness to recognize all the events that took place, as well as the violations in this case and its legal consequences, and expressly provided that the Court treat the entire case in its entire dimension. In view of the foregoing, the Court it is necessary to rule in this case on the request of the representatives. Court appreciates positively the statement made by the State for this specific case. Therefore, the Court has full jurisdiction to hear all the facts contained in the No. 75/12, which were submitted to the jurisdiction of the Court by the which will decide on the merits and possible reparations in this case.
IV RECOGNITION OF INTERNATIONAL RESPONSIBILITY
Recognition of State responsibility and observations of the Commission and the representatives
18. The State argued that, since 2009, had expressed in different cases before the organs that make up the inter-American system, that there was a new state vision regarding human rights obligations. As evidence of the above, the State recalled https://translate.googleusercontent.com/translate_f 8/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… thethat framework at the substantive of the present hearing case held on before November the Inter 6, -American2009, acknowledged Commission that, on "in Human the context Rights of in the past armed conflict [which took place in the country], between 1980 and 1991, there was a pattern of of forced disappearances of children and young people, especially in affected areas. armed confrontations and military operations, although it was a reality that remained for years denied. " Accordingly, the State acknowledged the existence of disappearance of children as part of a pattern of violence Salvador during the past internal armed conflict.
19. The State declared before the Court that it acknowledged and accepted the facts alleged in the of the case by the Commission and which have been considered as proven facts in the Section IV, points C 13, D 14, E 15 and F 16 of the merits report No. 75/12. As for the facts
12 The instrument through which El Salvador recognized the contentious jurisdiction of the Court includes a temporal limitation on cases that could be brought to the knowledge of the Court, in the following terms: The Government of El Salvador recognizes as binding, ipso facto and without special agreement, the jurisdiction the Inter-American Court of Human Rights, in accordance with the provisions of Article 62 of the American Convention [on] Human Rights or "Pact of San José". The Government of El Salvador, in recognizing that jurisdiction, notes that its acceptance is made by term undefined, on condition of reciprocity and with the reservation that cases where competition is recognized, It includes exclusively facts or subsequent legal acts or facts or legal acts whose principle of be committed after the date of deposit of this Declaration of Acceptance, [...]. Cfr . Declaration recognizing the compulsory jurisdiction of the Inter-American Court of Human Rights, presented to the Secretary General of the OAS on June 6, 1995. 13 Concerning the disappearance of José Adrián Hernández Rochac ( "Facts surrounding his disappearance" and "Processes internal "). 14 Concerning the disappearance of Santos Ernesto Salinas ( "Facts surrounding his disappearance" and "internal processes"). fifteenConcerning the disappearance of Emelinda Lorena Hernández ( "Facts surrounding his disappearance" and "Processes internal ").
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presented in the pleadings and arguments of the representatives, the State accepted the contained in section I of that letter, "referring specifically under the heading of circumstances and facts surrounding the disappearances of the victims in this case. " At During the public hearing, the State reaffirmed its recognition of the facts of the disappearance of the girl Emelinda Lorena Hernández and Santos Ernesto Salinas children, José Rochac Adrian Hernandez, Manuel Antonio Bonilla and Ricardo Ayala Abarca and the circumstances They are surrounding them, recognizing that they were made "as part of a pattern violence that took place in El Salvador during the armed conflict between 1980 and 1991 and it included the forced disappearance of children especially in those areas They were more affected by armed clashes and military operations. " Likewise, in its final arguments the State declared that "consistent with the position expressed before the [...] Court against cases involving children who disappeared during the armed conflict internal and in recognition of its obligations as established by the Convention American on Human Rights, in different procedural stages of this case, which They include the answer [to the submission of the case], transfer of observations on independent representatives and oral arguments presented during the public hearing held [...] recognized and accepted the facts alleged by the Inter-American Commission on Human Rights Human in relation [with] this case. "
twenty. With regard to the alleged violations of rights contained in the writings of the Commission and the representatives, the State did not explicitly ruled in his reply. Do not However, at the public hearing stated that "[s] n the legal claims, the State recognized in respect of this case the findings of the Inter-American Commission on Human Rights Human in its report on the merits of the case both with regard to violations established the detriment of the children who disappeared and to the detriment of family identified in the report. " Similarly, in its final arguments that recognized and established He accepted "the findings contained in the report on the merits issued by [the] Commission in Regarding the violations to the detriment of children who disappeared and their family identified in the same report. " https://translate.googleusercontent.com/translate_f 9/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… twenty-one.Regarding reparations, the State expressed in its answer their willingness to "Promote measures of reparation to the victims in this case, recommended by the [...] Commission [...] in its report on the merits ". To achieve this the State showed its intention to: (i) develop a dialogue with the victims and their representatives for the purpose of agree to adopt and implement a comprehensive set of remedial measures; (Ii) advancing measures such as the provision of medical and psychological assistance for victims, creating a garden-museum dedicated to missing children, a public act of recognition international responsibility, the appointment of a school with the name of the child and children in this particular case, and any other measure requested and agreed between the State, the victims and their representatives; (Iii) take the necessary measures to ensure the permanence of the Commission Search National Missing Children during the internal armed conflict, and (iv) make every effort to investigate the whereabouts of the child and children as well as perform the procedures and links to recover their identity in the case of Rediscovered. During the public hearing, the State reiterated its willingness to comply with the repairs. In its final arguments, the State indicated explicitly "its firm commitment advance the necessary actions to go [cen] fully the rights they They correspond as victims, mainly to achieve the highest aspiration of all family, which is the location of their disappeared children. " In these claims, the State reiterated the statement on reparations, which advances and promises to make
16 Concerning the disappearance of Manuel Antonio Bonilla and Ricardo Ayala Abarca ( "Facts surrounding their disappearances "and" internal processes ").
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for compliance. Regarding costs and expenses requested by the representatives, the State indicated that "the amount [...] exceeds the standard precedents established by [the] Court."
22. It is also noteworthy that during the public hearing, the State made the following statement:
[...] the State of El Salvador [...] wish to testify before this Court [...] full recognition to the dignity of the victims in this case and their families, the State expresses all the families of the children Santos Ernesto Salinas, Jose Adrian Hernandez Rochac, Emelinda [Lorraine] Hernández, Manuel Antonio Bonilla and Ricardo [Abarca Ayala] a sincere apology because in the past the State alleged the absence of These events were part of a pattern of violence that took place in El Salvador during the past armed conflict between 1980 and 1991, especially in those areas that were affected in more by armed clashes and military operations, which until today is because of profound suffering to many families. In particular, the State recognizes how difficult it is for victims express the pain of his memories even before this [...] Court by highlighting the strength that all family members have maintained for years while searching for their missing children. This fight has been accompanied by the Pro-Search Association of children who disappeared during years has clarified hundreds of cases and has assisted many families as part of a task that has its humanist origins in the admirable work done by the priest Jon Cortina. As it stated in the Reply [...] the State has recognized the facts of this hearing; It has also recognized its obligation to guarantee the rights that the victims in this case. Therefore, the State You wish to take this opportunity to express to the victims in this case their solidarity, but also to express its firm commitment to advance the actions necessary to enjoy fully the rights they hold under conditions of victims [mainly to achieve the highest aspiration of all the family, which is the location of their disappeared children].
2. 3. The Commission appreciated the acknowledgment of responsibility by the State, which adds to the already formulated during the hearing held before the Commission. Although initially made certain observations on the recognition, in response to manifested by the State at the public hearing, in the opinion of the Commission it has ceased controversy factual and legal. The Commission also reiterated its satisfaction at the recognition of responsibility and recognized as very significant the apology made. Without detriment to therefore asked the Court, in its judgment made a determination of the context of the facts the case and its legal implications in light of the American Convention, establishing all clearly state obligations to the future. As regards the repairs, the Commission considered that "the main challenge of the case [is] overcome the dissociation between the desire expressed through recognition of responsibility and the reality still living relatives of the victims in this case. " The Commission stressed https://translate.googleusercontent.com/translate_f 10/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Wtheill first the acknowledgmentState has failed to of "translate responsibility into a wascomprehensive made in 2009 response and so thatfar the includes components truth, justice and reparation "for which he requested the Court that as part of the repairs, is looking for a specific diagnosis on structural problems and determining measures to address them.
24. The representatives , in turn, also assessed as positive the recognition by the State to support both the violation of the rights claimed as the arguments Factual exposed. However, they considered that the manifestations of good faith by the State "need to be complemented by measures and actions even more decisive for improve the situation of social and natural vulnerability that are the victims. " They said they hope to achieve through the judgment of the Court, which measures imposed structural repair with the real relief and access to the truth of what happened. In addition, the representatives considered that recognition must take in all levels of public administration, answers with integrity, compassion, diligence and proportionality requires moral and material situation of the victims "as survivors Crimes against humanity". In its final arguments, they expressed "celebrate the acceptance of facts expressed by the State, because from the psycho-juridical approach means the satisfaction of the demand for justice for the victims, to be heard and recognized credibility, plus a
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request for forgiveness from the representation of the State in a litigation process International, after spending decades of descr [t] dito without receiving any level of care for their victimhood. " The representatives considered that the remedial measures should be comprehensive and that victims "would be frustrating not to get concrete steps to change their living conditions " .
Considerations of the Court
25. In accordance with Articles 62 17 and 64 18 of the Regulation and in exercise of its powers international judicial protection of human rights, a matter of international public order transcends the will of the parties, for the Court to ensure that acts of acquiescence are acceptable for the purposes sought by the inter-American system. This task is not limited only to observe, record or take note of the acknowledgment by the State, or to verify the formal conditions of the foregoing acts, but must relate them to the nature and seriousness of the alleged violations, the requirements and interests of justice,
particular circumstances of the case and the attitude and position of the parts 19 , so you can specify as soon as possible and in the exercise of its jurisdiction, the truth of what
occurred 20 . As such, recognition may not result in limit, direct or indirectly, the exercise of the powers of the court hearing the case has been you
under 21 and decide whether, in this regard, there was violation of a right or freedom protected by the
Convention 22 .
26. As regards the facts of this case, the Court finds that it is clear State willingness to accept as true the facts presented by the Commission Inter in section IV of the report thoroughly and specifically developed in the headings entitled "C. Regarding José Adrián Hernández Rochac "," D. Regarding Santos Ernesto Salinas, "" E. Emelinda Lorena Hernández "and" F. Manuel Antonio Bonilla and Ricardo Ayala Abarca "and as the facts included in the pleadings and arguments of the representatives, specifically those developed in section I, in particular regarding the circumstances and facts surrounding the disappearances of girls and children, containing the following sections: "1) José Adrián Hernández Rochac"; "2) Santos Ernesto Salinas"; "3) Emelinda Lorena
17 Article 62. Recognition If the respondent informs the Court of its acceptance of the facts or its total or partial acquiescence to the claims stated in the submission of the case or the writing of the alleged victims or their representatives, the Court, after hearing the opinions of others involved in the process, decide at the appropriate procedural moment, on its origin and its legal effects. 18 Article 64. Continuation of a Case The Court, taking into account its responsibilities to protect human rights, decide https://translate.googleusercontent.com/translate_f 11/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… to continue the consideration of the case, even in the presence of the conditions indicated in the preceding articles. 19 Cf. Case of Kimel v Argentina. Merits, Reparations and Costs. Judgment on May 2, 2008. Series C No. 177, para. 24, and Case Vs. Familia Gutierrez and Argentina. Reparations and Costs Fund. Judgment of November 25, 2013. C Series No. 271, para. twenty-one. twentyCf. Case of Manuel Cepeda Vargas vs. Colombia. Preliminary Objections, Merits, Reparations and Costs. Judgment 26 May 2010. Series C No. 213, para. 17, and Case Vs. Familia Gutierrez and Argentina, supra, para. twenty-one. twenty-oneArticle 62.3 of the Convention states: The Court has jurisdiction to hear any case concerning the interpretation and application of the provisions of this Convention that are submitted, provided that the States Parties If you recognize or have recognized such jurisdiction, whether by special declaration, as indicated in subparagraphs above, or by a special convention. 22 Article 63.1 of the Convention provides: If the Court finds a violation of a right or freedom protected in this Convention, the Court shall ensure that the injured in the enjoyment of his right or freedom that was violated. It shall also, where this is appropriate, that the consequences of the measure or situation that repaired the breach of such rights and the payment of fair compensation to the injured party.
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Hernandez "; "4) Manuel Antonio Bonilla Osorio" and "5) Ricardo Ayala Abarca". Accordingly, the Court considers that the recognition of the State covers events from 1980 and until 2004, relating to the circumstances in which disappearances materialized forced and processes developed in the internal forum. In addition, in view of the statement in the public hearing, the Court finds that the State accepted, similarly, as regards the context in which these disappearances are part and recognized that they occurred within said systematic pattern of disappearances.
27. Recognizing the State "the conclusions contained in the report on the merits issued by [The] Commission with regard to the violations to the detriment of children missing and their families identified in the same report "( supra para. 20), the Court He considers that the dispute has ceased between the parties regarding enforced disappearances of Rochac Jose Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, and the legal consequences thereof, because of the alleged violations of the rights recognized in the following articles: 3 (Right to Juridical Personality), 4 (Right to Life), 5 (Right to Integrity Personal), 7 (Right to Personal Liberty), 8 (Fair Trial), 17 (Family Protection) 19 (Rights of the Child) and 25 (Judicial Protection) of the American Convention, in relation to the Article 1.1 thereof, to the detriment of the child and the aforementioned children. It has ceased controversy regarding violations of Articles 5 (Right to Humane Treatment), 8 (Fair Trial), 17 (Family Protection) and 25 (Judicial Protection) of the Convention American, in conjunction with Article 1.1 thereof, to the detriment of the alleged relatives Rochac Jose Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala.
28. The Court decides to accept the acknowledgment made by the State regarding such violations. Given that the legal claims alleged in this case regarding enforced disappearances have been widely established by the Court in other cases of forced disappearance of persons and particularly of children in the context the Salvadoran armed conflict, the Court does not consider it necessary, in this case, examine the extent of violations of the rights to liberty, personal integrity, life and legal personality ( infra paras. 92-97).
29. As it regards the extent of violations of the rights of girls and boys to protection of family, private and family life and identity, and the right of family to family protection, family life and integrity, the Court finds relevant analyze it in the relevant chapters in view of the particularities present case ( infra paras. 104-117). Such considerations will contribute to the development of jurisprudence on the subject and the corresponding protection of human rights victims in this case.
30. Whereas the State recognized the legal consequences of the acts under as contained in the report of the Commission without referring to the position of representatives around the right to truth, the Court will rule on the merits of the relationship between it and the possible legal and factual obstacles that have prevented the fulfillment of the obligation to investigate the https://translate.googleusercontent.com/translate_f 12/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… facts of the forced disappearance of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala ( infra Chapter VII-2).
31. As regards the remedies, the Court notes that still exists controversy regarding the scope of certain claims of the Commission and the representatives regarding reparations, as well as the results that the State invoked. Consequently, the Court resolve the matter in Chapter VIII.
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32. As for the family, the State did not make a specific ruling on the victims and / or beneficiaries, merely express their willingness to compensate the victims of this If, as ordered in the report background. According to Article 35.1 of Rules of the Court, the Commission recorded in his written submission and the Merits Report No. 75/12, the alleged victims in this case were: "Alfonso Hernández, Rochac Sebastián Hernández, Estanislao Rochac Hernandez, Maria Juliana Rochac Hernández, María Transit Rochac Hernandez, Ana Margarita Rochac Hernandez, Nicolás Alfonso Rochac Hernández, María Adela Iraheta, Amparo Salinas, Salinas Estela Josefina Salinas, Julio Iraheta, Felipe Flores Iraheta, María Adela Hernández, Juan de la Cruz Sanchez, Joel Alcides Hernández, Valentina Hernández, Santiago Perez, Juan Evangelista, José Cristino Hernandez, Eligorio Hernandez, Rosa Ofelia Hernandez, Jose de la Paz Bonilla, Maria degli Angeli Osorio, Petrolina Abarca Alvarado, José Arístides Bonilla, María Inés Bonilla, María Josefa Rosales, Maria Esperanza Alvarado, Luis Alberto Alvarado, Esther Ayala Abarca, Paula Alvarado, Daniel Abarca, José Humberto Osmin covers and covers ". In its pleadings and motions, the representatives indicated additionally as alleged victims Melvin Armando Hernandez Alvarado, paternal brother Jose Adrian Hernandez Rochac; Juana Francisca Bonilla, Santos Ernesto paternal sister Salinas; Wilmer Alexander Hernandez, brother of Emelinda Lorena Hernández; Jose Reyes Bonilla Osorio, Ana Abarca Virginia Bonilla Osorio and Dora Alicia Osorio, brother and sister of Manuel Antonio Bonilla. In turn, in the final written arguments, the representatives added as Mary Silveria alleged victims Rochac Beltran and Sergio Rochac, mother and brother respectively of José Adrián Hernández Rochac; Manuel Eugenio Salinas, father of Santos Ernesto Salinas; Simon Ayala Jesus Bonilla, nephew of Manuel Antonio Bonilla; Juan José Ayala Alvarado and Juan Francisco Abarca Alvarado, respectively father and paternal brother Ricardo Ayala Abarca. In short: 25 people were named as alleged victims in the family this case by the Commission and the representatives, and accepted by the State; 10 people were family named as alleged victims by the Commission and accepted by the State, but not the representatives, and 12 people were named as alleged victims family only by representatives.
33. Article 35.1 of the Rules of Court provides that the case will be submitted to it by presentation of the merits report, which must include "the identification of the alleged victims ". It is therefore up to the Commission to identify accurately and in due time
proceedings to alleged victims in a case before the Court 23 , so that after the report background is not possible to add new alleged victims, except in exceptional circumstances
referred to in Article 35.2 of the Rules of Court 24 , which refers to situations which is not possible to "identify one or some alleged victims of the facts of the case Being cases of massive or collective violations. " Therefore, pursuant to Article 35, whose content is unambiguous, is consistent jurisprudence of this Court that the alleged victims
They must be identified in the background report provided for in Article 50 of the Convention 25 .
2. 3 Cf. Case Barrios Family v Venezuela. Merits, Reparations and Costs. Judgment of November 24, 2011. Series C No. 237, footnote 214, and Case Norín Catrimán and others (leaders, members and activist Indigenous People Mapuche) v Chile. Merits, Reparations and Costs. Judgment of May 29, 2014. Series C No. 279, para. 29. 24 Article 35.2 of the Rules of Court provides that "[w] hen provides evidence that it was not possible to identify one or some alleged victims of the facts of the case because it concerns massive or collective cases of rape, Court will decide in due course whether considered victims. " Cf. Case Vs. Black River Massacres Guatemala. Exception Preliminary Objection , Merits, Reparations and Costs. Case 4 September 2012. Series C No. 250, paras. 47 to 51, and Case https://translate.googleusercontent.com/translate_f 13/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Massacr2012. Serieses of C El No. Mozote 252, paras.and surr 49ounding to 57. areas v El Salvador. Merits, Reparations and Costs. Judgment of 25 October 25 Cf. Case Barrios Family v Venezuela, supra , footnote 214, and Case Norín Catrimán and others (leaders, members and activist Mapuche Indigenous People) v Chile, supra , para. 29.
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3. 4. In this case the provisions of article 35.2 of the Regulation are not met, they could justify the identification of alleged victims after the report background or submission of the case. In accordance with the jurisprudence mentioned, the Court finds to clarify that additional relatives indicated by the representatives shall not be considered alleged victims in this case, notwithstanding that repairs Internally they may correspond. Therefore, the Court declares to be considered victims in this case:
Regarding Rochac José Adrián Hernández Alfonso Hernández Herrera (father) Rochac Sebastian Hernandez (brother), Tanislao Rochac Hernandez (brother), Maria Rochac Juliana Hernandez (sister), María del Transito Hernandez Rochac (sister), Ana Margarita Hernandez Rochac (sister) and Nicolas Alfonso Torres Hernandez (brother).
Regarding Santos Ernesto Salinas: María Adela Iraheta (mother), Julio Antonio Flores Iraheta (brother), Felipe Flores Iraheta (brother), María Estela Salinas de Figueroa (Sister), Amparo Hernandez Salinas (sister) and Josefa Salinas Iraheta (sister).
Regarding Emelinda Lorena Hernández: María Adela Hernández (mother), Jose Juan de Cruz Sánchez (father), Joel Alcides Hernandez Sanchez (brother), Valentina Hernández (Maternal grandmother), Santiago Perez (maternal grandfather), Juan Evangelista Hernández Pérez (uncle mother), José Cristino Hernández (maternal uncle), Eligorio Hernández (maternal uncle) and Rosa Ofelia Hernández (maternal aunt).
Regarding Manuel Antonio Bonilla Osorio Maria degli Angeli (mother), Jose de la Paz Bonilla (father), José Aristides Bonilla Osorio (brother), María Inés Bonilla de Galan (Sister), María Josefa Rosales (maternal grandmother), María Esperanza Alvarado (aunt) and Luis
Alberto Alvarado (uncle) 26 .
Regarding Ricardo Abarca Ayala: Petronila Abarca Alvarado (mother), Daniel Ayala Abarca (brother), José Humberto Abarca Ayala (brother), Ester Abarca Ayala (sister), Osmin Abarca Ayala (brother) and Paula Alvarado (grandmother).
35. In short, the acknowledgment made by the State constitutes acceptance of the facts, which produces full legal effect in accordance with Articles 62 and 64 of Regulation of the Court, as well as a partial acknowledgment of international responsibility. In consideration the seriousness of the facts and the alleged violations, the Court will establish facts that led to the state's responsibility, and the context in which framed the same, since it contributes to the repair of the victims, to prevent a recurrence Similar and meet, in short, the purpose of the inter-American jurisdiction over rights
human 27 .
36. Finally, the Court emphasizes the apology to victims of disappearances forced and their families, which has a high symbolic value for the sake of not repeating facts like, as well as the commitment expressed by the State on boosting measures
26 As set out in paragraph 123 of the report of merits No. 75/12, María Esperanza Alvarado and Luis Alberto Alvarado are "paternal uncles" of Manuel Antonio Bonilla. However, in its initial request the representatives indicated that María Esperanza Alvarado and Luis Alberto Alvarado are "paternal brothers" and María Esperanza Alvarado was Rosales Osorio married to Isidro, brother of Maria de los Ángeles Osorio, mother of Manuel Antonio Bonilla. Since in its response the State made the acknowledgment of responsibility based on the merits report stating that such individuals are guys Manuel Antonio Bonilla, the Court will consider them in that capacity. 27 Cf. Case Vs. Tiu Tojín Guatemala. Merits, Reparations and Costs . Judgment of 26 November 2008. Series C No. 190, para. 26, and Case Vs. Familia Gutierrez and Argentina , supra, para. 22.
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repairs needed in ongoing dialogue with the representatives and under the criteria Set the Court. All these actions constitute a positive contribution to the development of this
process, the validity of the principles underlying the Convention 28 and, in part, to the satisfaction
repair needs of victims of human rights violations 29 .
V PROOF
37. Based on the provisions of Articles 46 to 52 and 57 to 59 of the Regulation and in its
jurisprudence regarding evidence and its assessment 30 , the Court will examine the admissibility of the elements documentary evidence submitted by the parties at different procedural opportunities, statements, testimonies and expert opinions rendered by affidavit notary public (affidavit) and at the public hearing as well as helpful evidence requested by the Court, and subsequently assessed to establish the facts found and rule on the merits, reparations, taking into account all the evidence and observations of the parties. For it will adhere to the principles of sound
, within the applicable legal framework 31 .
TO. documentary, testimonial and expert evidence
38. The Court received various documents presented as evidence by the Commission and the Representatives attached to its main briefs ( supra paras. 1 and 5). In addition, the Court received the statements made before notary public (affidavit) by María del Transito Hernandez Rochac, Julio Antonio Flores Iraheta, María Adela Hernández, Ester Abarca Ayala and expertise of Frank's Rue. As for the evidence presented at the public hearing, the Court heard the statements Rochac Juliana Maria Hernandez, Jose Aristides Bonilla Osorio and Martha's expertise Concepción Cabrera Cruz. In turn, they joined the evidence in the instant case expert testimony given by affidavit by Douglass Cassel, Viktor Jovev and Ana Georgina Ramos Villalta; the expert testimony given in open court by María Sol Yáñez de la Cruz and Ricardo Alberto Iglesias Herrera, and the expansion of expertise in writing of María Sol Yáñez de la Cruz, all
for the Case of Contreras et al v El Salvador 32 . Similarly, the Court received the parts requested documents as useful evidence ( supra paras. 9, 10, 11 and 13).
B. Admission test
B.1 Admission of Exhibit
39. In this case, as in others, the Court admits the documents presented in the procedural due time by the parties and the Commission, which were not contested or
28 Cf. The Caracazo vs. Venezuela. Background . Judgment of November 11, 1999. Series C No. 58, para. 43, and If García Cruz and Sanchez Silvestre vs. Mexico. Merits, Reparations and Costs. Judgment of November 26, 2013. C Series No. 273, para. 2. 3. 29 Cf. Case Vs. Colombia Manuel Cepeda Vargas, supra, para. 18, and Case Vs. Familia Gutierrez and Argentina , supra, para. 27. 30 Cf. Case of the "White Van " (Paniagua Morales et al) v Guatemala. Background. Judgment of March 8, 1998. C Series No. 37, paras. 69 to 76, and Case Human Rights Defender et al v Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of 28 August 2014. Series C No. 283, para. 51. 31 Cf. Case of the "White Van " (Paniagua Morales et al) v Guatemala. Background, supra , para. 76, and Case Defender Human Rights et al v Guatemala, supra , para. 51. 32 Cfr . Rochac Hernández et al v El Salvador. Order of the President of the Court of 3 March 2014, Recital 14.
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challenged 33 , as well as those requested by the Court on the basis of the provisions of Article 58.b of the Rules of Court which were submitted by the parties after the public audience.
40. As for the press releases sent by the Commission and the representatives, the Court has considered that they may be assessed insofar as they contain public and notorious facts or statements
State officials, or corroborate aspects related to the case 34 . In Consequently, the Court decides to admit the documents that are complete or at
least allow finding its source and date of publication 35 .
41. As for the costs and expenses documents sent by the representatives with final written arguments, the Court will only consider those provided relating to new expenses and costs incurred during the proceedings before this Court, that is, those made after the pleadings and arguments.
42. Finally, the State submitted a "[c] ERTIFICATION of proceedings of the Magistrate's Court Meanguera in the Department of Morazan, in relation [with] the girl Emelinda Lorena Hernández " together with his comments to the appendixes to the final arguments of the representatives and requested the Court that such evidence be incorporated into the terms of Article 57.2 of Regulation contain updated information. The Commission and the representatives did not oppose his incorporation. The Court admits that provision based on the craft 265/2014 of 14 May 2014 and the order of May 15, 2014 the magistrate of Meanguera, both contained in the certificate, and considered useful for the resolution of this case, will admit resolution of 13 September 2013 the Court of Peace of Meanguera.
B.2 Admission of the testimonial and expert evidence
43. The Court deems it appropriate to admit the statements and opinions given by the alleged both victims and experts in open court and through notarized affidavits public, as to the object defined by the President in the resolution that ordered comply receive ( supra para. 10) and in this case. Following the public hearing expert Martha Cruz de la Concepción Cabrera sent a document with the expertise "Sequels transgenerational of enforced disappearances "which is incorporated into the evidence.
44. Resolution by convening the Presidency of March 3, 2014 ( supra para. 10) did not request representatives to replace the expert's statement was admitted Pilar Ibáñez Mosqueda by Baltasar Garzón Real Connoisseur, why reception was ordered initially offered the test. The expertise of Pilar Ibáñez Mosqueda was not received within granted. On 1 April 2014 Mr. Baltasar Garzón Real sent a document ratified before notary public, containing "the answer to the questions submitted by the [...] State of the Pilar Ibañez Salvador Mosqueda in relation to the 'study of establishment of chain followed command within the Armed Forces of El Salvador in the years in which they occurred the [alleged] enforced in this case 'disappearance. " Representatives at the request of the Presidency presented clarifications about said document and said they desisted of expertise. For its part, the State noted that the survey was not given by the expert who
33 Cf. Case of Velásquez Rodríguez v Honduras . Background . Judgment of 29 July 1988. C Series No. 4, para. 140, and Human Rights Defender Case et al v Guatemala, supra , para. 54. 3. 4 Cf. Case of Velásquez Rodríguez v Honduras. Background, supra , para. 146, and Case of Human Rights Defender al vs. Guatemala, supra , para. 55. 35 Therefore, not be considered Annex 15 to the brief of arguments and evidence, since no date or source and no It was possible to remedy the deficiency or press releases Annex 30 to the brief of arguments and evidence which they are unreadable and it was not possible to remedy that defect.
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SAW ACTS
Four. Five.Given the importance of this case for the establishment of the facts generated state responsibility, and the context in which they were framed to order to preserve the historical memory and prevent repetition of similar events as a way of
reparation to victims 36 , this section by the Court will set out the facts of this case and the international responsibility arising therefrom, based on the factual framework established in the report on the merits of the Inter-American Commission and the recognition of responsibility made by the State and taking into account the pleadings and arguments of the representatives, the precedents of the Court and the evidence. For this purpose, the Court recalls that the State made a total acceptance of the facts ( supra paras. 26 and 35).
TO. Context
46. The Court has already ruled in the judgment issued in the case Contreras et al v El Salvador on the context in which the events in this case are set, based primarily on the
Report of the Commission on the Truth for El Salvador 37 . That context was included by the Commission Inter on its merits report in respect of this case. For its part, the State He recognized the aforementioned context ( supra para. 19).
47. In this regard, the Court recalls that from 1980 to 1991, El Salvador was engulfed in internal armed conflict. Between 1989 and 1992, several agreements were signed between the Government of El Salvador and the Farabundo Martí National Liberation Front (FMLN) and, Finally, after twelve years of armed conflict, January 16, 1992 was signed in Chapultepec, Mexico, the Peace Agreement under the good offices of the Secretary-General of the United Nations,
ending the fighting 38 . The Truth Commission, created by the Mexico Agreements of April 27, 1991 and began operations on July 13, 1992, described in his report published on March 15, 1993 the patterns of violence during the armed conflict, both State agents as members of the FMLN. For reasons of method step divided examined (1980-1991) in four periods: from 1980 to 1983; 1983-1987; 1987 to 1989 and 1989 1991. The period from 1980 to 1983, in which the facts of this case fall is he called as "institutionalized violence", where "[t] he establishment of violence systematically, terror and distrust of the civilian population [...] the essential features of
this period " 39 .
36 Cfr. Goiburú et al v Paraguay. Merits, Reparations and Costs . Judgment of September 22, 2006. C Series No. 153, para. 53, and Case of Valle Jaramillo and other vs Colombia. Merits, Reparations and Costs. Judgment of 27 November 2008. Series C No. 192, para. 47. 37 Cf. Case of Contreras et al v El Salvador. Merits, Reparations and Costs. Judgment of August 31, 2011. Series C No. 232, paras. 40 to 55, citing Report of the Commission on the Truth for El Salvador, From Madness to Hope, 12-year war in El Salvador, 1992-1993. 38 Cf. Case of Contreras et al v El Salvador, supra , para. 46, and Case Massacres of El Mozote and surrounding areas Vs. The Salvador, supra , para. 65. 39 If Contreras et al v El Salvador, supra , para. 48, citing Report of the Commission on the Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993.
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48. In this context Infantry Battalions were created Rapid Reaction Force Salvadoran armed, as the Atlacatl in March 1981, which were trained units especially for fighting the insurgency, which had completed their training under the
advice and supervision of US military 40 . According to the Truth Commission, during this
period "for t [ed] the highest number of deaths and violations of human rights" 41 . So, https://translate.googleusercontent.com/translate_f 17/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… the Commission of Truth received direct testimony from numerous mass executions occurred during the years 1980, 1981 and 1982, the members of the armed forces which, in the during counter-insurgency operations, "they were executed peasants, men, women and children, They had not opposed any resistance, simply considering them collaborators
guerrillas " 42 . The Truth Commission ruled out "any possibility that has been treaty isolated or excess soldiers or their immediate bosses incidents. [...] All checks that these deaths fall within a pattern of behavior, of a deliberate strategy eliminate or terrorize the rural population areas of activity fighters, to deprive them of this source of supply and information as well as the possibility of
hidden or concealed from her " 43 . According to the Truth Commission, it is impossible to maintain that this pattern of conduct is attributable only to local control, and has been unknown senior commanders, since the massacres of peasant population were reported repeatedly, with no evidence that it has made any effort to
investigate 44 .
49. The Court noted that, in the context of that armed conflict and the phenomenon of forced disappearance of persons, also occurred a specific pattern, recognized by the State ( supra para. 19), related to the forced disappearance of children, who were abducted and illegally detained by members of the armed forces in the context of counterinsurgency operations. It is also established that the practice involved in many cases, the appropriation of children and registration with another name or under false data. According It was indicated by the Pro-Search Association, an institution of civil society which has documented and further investigated this phenomenon and taken action to search and
youth reunion with their families 45 , to April 2014 were registered 926 cases of girls and children who disappeared during the armed conflict, which had resolved about 389. Of these, 239 were reunited with their biological families, 54 had been located They died and 96 were pending reunion.
fifty. Based on the work of the Pro-Search Association, the Court has identified following components allowing characterize the systematic pattern of disappearances
of children during the armed conflict in El Salvador 46 :
40 Cf. Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 67, citing Report of the Commission Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993. 41 If Contreras et al v El Salvador, supra , para. 48, citing Report of the Commission on the Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993. 42 If Contreras et al v El Salvador, supra , para. 50, citing Report of the Commission on the Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993. 43 If Contreras et al v El Salvador, supra , para. 50, citing Report of the Commission on the Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993. 44 Cf. Case of Contreras et al v El Salvador, supra , para. 50, citing Report of the Commission on the Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993. Four. FiveCf. Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs . Judgment of March 1, C 2005. Series No. 120, para. 48.6, and Case of Contreras et al v El Salvador, supra , para. 52. 46 Cf. Case of Contreras et al v El Salvador, supra , paras. 51 to 55.
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a) The phenomenon of forced disappearance of children responded to a deliberate strategy on the framework of institutionalized State violence that characterized the era of conflict. b) The departments most affected by the conflict were also those most Missing number of children, including Chalatenango, San Salvador, San Vicente, Morazan, Usulutan, Cabins, Cuscatlan and La Libertad, since the disappearances were part of the counterinsurgency strategy developed by the State obeyed the concept of destroying populations associated with guerrilla. c) The abduction of children had among its objectives separate from the "enemy population" and "Educate them in the ideological conception supported by the State at the time". There were also other reasons like taking the children to give them up for adoption. https://translate.googleusercontent.com/translate_f 18/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… d) Theafter children their families were abducted were executed during orthe forced execution to flee of tomilitary protect counterinsur their lives andgency operations, often appropriate by military commanders, who included them in their family breasts as children. e) Possible destinations for girls and children after separation from his family and his disappearance, can be classified as follows: 1) adoptions in which there is a process Formal within the judicial system, where most foreign families were allocated, mainly from the United States, France and Italy; 2) adoptions "in fact" or "takings" consisting of Salvadoran families where care of the children were made but never They formalized the adoption of the child; 3) cases of "ownership" by the military, whom the They included in their families and children, although in most cases children were used for domestic or agricultural work; 4) children who grew up in orphanages without accompaniment, in which managers did not attempt to find relatives; and 5) children who grew in military installations. On the other hand, has compiled evidence to indicate that some children and missing girls were victims of trafficking. Finally, they had located cases of children and deceased girls. f) There was a practice of altering the identities of minors, being many were indeed registered as daughters and sons, ie, without altering records while in other cases the name or surname was changed and the age of the children was altered.
51. Then the Court will proceed to establish the facts constituting each of the forced the victims in this case disappearances, who were at the time of the facts
children girl and 47 , and the circumstances surrounding them, on the basis of factual framework and recognition of state responsibility.
B. Events related to the forced disappearance of José Adrián Rochac Hernández
52. Jose Adrian Rochac Hernandez was born May 17, 1975 in the canton of San José Segundo,
municipality of San Martin, San Salvador department 48 . He is the son of Alfonso Hernández Herrera 49 and
Maria Silveria Rochac Beltran 50 and brother Sebastian 51 , Tanislao 52 , Sergio Antonio 53 , Maria
47 Court or for the girl child is a person under 18 years of age. Cf. Juridical Status and Human Rights of the child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No. 17, para. 42. 48 Cfr . Birth certificate of José Adrián Hernández Rochac issued by the Registry of the Family Status Municipality of San Martin (dossier of evidence, volume IV, Annex 1 to the submission of the case, folio 1831). 49 Cfr. Single identity document of Alfonso Hernández Herrera issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4934). fifty Cfr . Birth certificate of José Adrián Hernández Rochac issued by the Registry of the Family Status Municipality of San Martin (dossier of evidence, volume IV, Annex 1 to the submission of the case, folio 1831). 51 Cfr. Single identity document Rochac Sebastian Hernandez issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4942). 52 Name used in the birth certificate. Cf. Birth certificate issued by Tanislao Rochac Hernández Family Status Registry of the Municipality of San Martin (dossier of evidence, volume XI, annex to the allegations Final written, folio 4940).
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Juliana 54 , Maria Transit 55 and Ana Margarita 56 and Nicolas Alfonso Torres Hernandez 57 . To the time of the events the Rochac Hernandez family lived in the San José canton concerned
Second 58 . This area was regarded as a suspected area guerrilla support 59 .
53. On December 12, 1980, approximately eight to nine hours of the morning, It carried out a military operation in the canton of San José Segundo where they participated units
Air Force of El Salvador in combination with the Civil Defenses of San Martin and Perulapia 60 .
54. During the operation a group of ten soldiers from the Salvadoran Air Force reached the
house Rochac Hernandez family 61 . At that moment Mrs. were in the house Mary Silveria Rochac Beltran, convalescing with his newborn son and his children Sergio Antonio Maria
Juliana, Jose Adrian, Maria del Transito and Ana Margarita 62 . The soldiers demanded Mrs. María
Silveria Rochac Beltran to surrender their weapons, to which she replied that they had 63 .
https://translate.googleusercontent.com/translate_f 19/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
(Record53 Cfrof .evidence, Act sentencing volume hearing XI, annexed held at to the the Family final written Court ofar guments,Soyapango folios on January 4935-4938). 20, 2014 54 Cfr. Single identity document Rochac Maria Juliana Hernandez issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4942). 55 Cfr. Unique Identity Transit Maria Hernandez Rochac issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4941). 56 Cfr. Unique Identity of Ana Margarita Hernandez Rochac issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4945). 57 Cfr. Single identity document Nicolas Alfonso Torres Hernandez issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4941). While the document unique identity indicates that born the same day of the capture of José Adrián Hernández Rochac, that is on 12 December 1980, Nicolas Alfonso Torres Hernandez was part of the family at the time of the disappearance of José Adrián Rochac Hernández, since according to several witnesses had " a few days old." Cf. Statement made before notary public (affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, page 4748); Statement made before notary public (affidavit) by María Juliana Hernandez Rochac 11 January 2007 (record of evidence, volume IV, appendix 2 to submitting the case, folio 1835), and Statement made before notary public (affidavit) by Dolores López Vda. Hurtado on January 11, 2007 (record of evidence, volume IV, Annex 5 to submitting the case, pages 1864 and 1865). 58 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Evidence, volume IV, Annex 2 to submitting the case, page 1834); Statement made before notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4748), and statement made before the Court by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 59 Cfr . Press release published in the "Diario Latino" on December 22, 1980 entitled "Dismantle Camp subversive in a block "(evidence, volume IV, Annex 4 to submitting the case, pages 1860-1861), and Statement made before notary public (affidavit) by José Román Quijano on January 11, 2007 (file evidence, volume IV, Annex 3 to the submission of the case, folio 1850). 60 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Dossier of evidence, volume IV, Annex 2 to the submission of the case, folio 1835), and statement made before a notary public (Affidavit) by José Román Quijano on January 11, 2007 (record of evidence, volume IV, Annex 3 to the submission of case, folio 1849). 61 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Dossier of evidence, volume IV, Annex 2 to the submission of the case, folio 1835), and statement made before a notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4749). 62 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Dossier of evidence, volume IV, Annex 2 to the submission of the case, folio 1835), and statement made before a notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4749). 63 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Evidence, volume IV, Annex 2 to submitting the case, page 1835); Statement made before notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio
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Later, the soldiers took Mary Silveria Rochac Beltran house 64 and his son Sergio Antonio, who at that time had about twelve years old ran to
with his mother 65 . Maria Silveria Rochac both Beltran and his son were Sergio Antonio
executed by the military in the vicinity of the house by a neighbor 66 .
55. Moments after the execution, the soldiers returned to the house and took Joseph Rochac Adrian Hernandez, who at the time had five years and seven months old,
saying "let 's go kid, you're going to get on the horse" 67 . The other children were locked in
home and threatened that no saliesen or, otherwise, they would kill 68 . Soldiers were heading for the exit of the corner and the next day Rochac José Adrián Hernández was transferred to the
Perulapia Square, where some army trucks were waiting for them 69 .
56. After the conflict ended, the family made several efforts to find Jose Hernandez and Adrian Rochac May 29, 1996 presented the case to the Association Pro-
Search 70 . On 31 May 1996 the Pro-Search Association submitted to the Procurator Defense of Human Rights a list of several complaints before that
4749), and statement made before the Court by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. https://translate.googleusercontent.com/translate_f 20/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… (Dossier64 Cfr of . evidence,Statement volumemade before IV, Annex notary 2 publicto the submission(affidavit) by of Maríathe case, Juliana folio Rochac1835), andHernandez statement on madeJanuary before 11, 2007a notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4749). 65 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Evidence, volume IV, Annex 2 to submitting the case, pages 1834-1835); Statement made before notary public (affidavit) by Dolores López Vda. Hurtado on January 11, 2007 (record of evidence, volume IV, Annex 5 to submitting the case, page 1864); Statement made before notary public (affidavit) by María del Tránsito Hernández Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4749), and statement made before the Court Inter by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 66 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Evidence, volume IV, Annex 2 to submitting the case, pages 1835-1836); Statement made before notary public (affidavit) by Dolores López Vda. Hurtado on January 11, 2007 (record of evidence, volume IV, Annex 5 to submitting the case, page 1864); made before notary public (affidavit) by José Román Quijano 11 statement January 2007 (record of evidence, volume IV, Annex 3 to the submission of the case, folio 1850); Statement made before notary public (affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, page 4749); Act sentencing hearing held at the Family Court of Soyapango on 20 January 2014 (record of evidence, volume XI, annexed to the final written arguments, folios 4935-4938); Offended interview Alfonso Hernández Herrera at the Unit for Crimes against Minors and Women of the Attorney General's Office 20 November 2009 (record of proceedings before the Commission, Volume III, folios 1610-1612), and testimony before the Inter-American Court by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 67 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Evidence, volume IV, Annex 2 to submitting the case, page 1836); Statement made before notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4749); Statement made before notary public (affidavit) by Dolores López Vda. Hurtado, on January 11, 2007 (Dossier of evidence, volume IV, Annex 5 to submitting the case, folio 1864), and statement made before the Court Inter by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 68 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Evidence, volume IV, Annex 2 to submitting the case, page 1835); Statement made before notary public (Affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (record of evidence, volume X, affidavits, folio 4749), and statement made before the Court by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 69 Cfr . Statement made before notary public (affidavit) by María Juliana Rochac Hernandez on January 11, 2007 (Dossier of evidence, volume IV, Annex 2 to the submission of the case, folio 1836), and statement made before a notary public (Affidavit) by José Román Quijano on January 11, 2007 (record of evidence, volume IV, Annex 3 to the submission of case, folio 1850). 70 Cfr. Telefax issued by the Pro-Search Association on February 2, 2005 (record of proceedings before the Commission, Volume II, page 968).
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Association of relatives of disappeared children, including the relative was at the
Rochac disappearance of José Adrián Hernández 71 .
57. On April 12, 2002, Mr. Alfonso Hernández Herrera, father of José Adrián Rochac Hernandez, formally filed a complaint about the disappearance of her son to the Unit Crimes against Minors and Women, Sub-Regional Soyapango, the Attorney General's
Republic 72 . The Prosecutor opened an investigation, which is currently pending before the Fiscal Office Soyapango ( infra paras. 145-147).
58. On October 16, 2002, Mr. Alfonso Hernández Herrera filed an application for habeas corpus before the Constitutional Chamber of the Supreme Court's disappearance
his son Jose Adrian Hernandez Rochac 73 . Along with this writing the respective item was provided Rochac birth of Jose Adrian Hernandez and offered as evidence the testimony of two
witnesses 74 . The investigating judge in charge of the process reported that "[...] in the books and records leads [ed] the defendants did not seem [ieron] notes or records relating with the possible restriction or deprivation of liberty of the child [...] "and that" it was found that the child no [was] he deprived of his liberty in the precincts of the military units of the Ministry of
Defense and Chief of Joint Staff of the Navy "Force 75 . On March 3, 2003 the Board of Supreme Constitutional Court dismissed the habeas corpus, He is arguing that "[the] room p [udiera] issue a decision on the merits raised, [was] necessary to have a minimum of elements that permit [d] to establish a
degree of probability of the existence of physical restriction on the right of "freedom 76 .
59. On 22 February 2013 the Pro-Search Association requested a meeting with the Attorney General of the Republic, who was raised concern about deadlocks https://translate.googleusercontent.com/translate_f 21/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… in which it has [d] incurred different tax offices in cases reported by disappearance of children, including Jose Adrian Hernandez Rochac 77 .
60. The State indicated that the National Commission to Search for Missing Children
during the armed conflict 78 "It has advanced various steps including
71 Cfr . Telefax issued by the Pro-Search Association addressed to the Ombudsman for the Defense of the Rights Humans May 31, 1996 (record of evidence, volume IV, Annex 7 to submitting the case, folio 1875), and Listing of cases filed by the Pro-Search Association to the Office for the Defense of Human Rights 31 May 1996 (record of proceedings before the Commission, volume II, pages 982-985). 72 Cfr . Complaint lodged with the Unit for Crimes against Minors and Women of the Attorney General Alfonso Hernández Herrera Republic on April 12, 2002 (record of evidence, volume V, appendix 8 to the letter of pleadings, motions and evidence, folios 2268-2270). 73 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Alfonso Hernández Herrera on October 16, 2002 (record of evidence, volume IV, Annex 11 to the submission of the case, folios 1890-1893). 74 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Alfonso Hernández Herrera on October 16, 2002 (record of evidence, volume IV, Annex 11 to the submission of the case, folios 1890-1893). 75 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 216-2002 on March 3, 2003 (record of evidence, volume V, attachment 11 to the pleadings, motions and test, folios 2308-2310). 76 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 216-2002 on March 3, 2003 (record of evidence, volume V, attachment 11 to the pleadings, motions and test, folios 2308-2310). 77 Cfr . Letter Pro-Search Association addressed to the Attorney General of the Republic of February 22, 2013 (Record of evidence, volume V, attachment 12 to the pleadings, motions and evidence, folios 2312-2313). 78 This Commission was created through Executive Order No. 5, published in the Official Gazette on January 18, 2010, whose main purpose is to "investigate and determine the whereabouts and status of girls and boys who disappeared during the
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field research and review of records and documents in public and private institutions so that to date has concrete clues of a person who may correspond to the child Jose Adrian Hernandez Rochac ". However, as designated by the State, it has not completed the research process which has not materialized identification.
C. Events related to the forced disappearance of Santos Ernesto Salinas
61. Santos Ernesto Salinas was born on November 28, 1972 in Canton San Antonio
Achichilquito, municipality of San Vicente, San Vicente department 79 . He is the son of María Adela
Eugenio Salinas and Manuel Iraheta 80 and brother of María Estela 81 , Amparo 82 and Josefa 83 , and by
his mother Julio Antonio 84 and Felipe Flores Iraheta 85 .
62. At the time of the events, the Salinas family lived in Canton San Nicolás Lempa,
Tecoluca jurisdiction, from the department of San Vicente 86 . On October 15, 1981
the guerrillas had shot down the golden bridge over the Lempa River in San Nicolás Lempa Canton 87 . In response, days later, the Salvadoran army carried out a military operation in the aforementioned
zone 88 . Atlacatl Battalion and the National Guard ordered the eviction of families living
adjacent to the bridge area 89 .
internal armed conflict in El Salvador and promote the reunion with his family of origin in a context of respect dignity of the victims. " 79 Cfr . Birth certificate of Santos Ernesto Salinas issued by the Civil Registry of the Municipality of San Vicente (dossier of evidence, volume IV, appendix 12 to submission of the case, folio 1895). 80 Cfr . Birth certificate of Santos Ernesto Salinas issued by the Civil Registry of the Municipality of San Vicente (dossier of evidence, volume IV, appendix 12 to submission of the case, folio 1895). 81 Cfr. Unique Identity of María Estela Salinas de Figueroa issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4954). 82 Cfr. Unique Identity of Amparo Hernandez Salinas issued by the National Registry of Persons https://translate.googleusercontent.com/translate_f 22/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
83NaturalCfr (record. Death of certificate evidence, ofvolume Josefa XI, Salinas annexed Iraheta to the issued final by written the Register arguments, of Family folio 4953).Status of the Mayor Municipal Usulutan (record of evidence, volume XI, annexed to the final written arguments, folio 4955). 84 Cfr. Single identity document Julio Antonio Flores Iraheta issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4952). 85 Cfr. Unique Identity of Felipe Flores Iraheta issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4951). 86 Cfr . Notarized affidavit of Juana Francisca Bonilla of July 15, 2013 (evidence file, Volume V, Annex 52 to the pleadings and motions, page 2533) and affidavit before a notary public July Antonio Flores of July 22, 2013 (record of evidence, volume V, Annex 54 to the pleadings and arguments, folio 2538). 87 Cf. Statement made before notary public (affidavit) by Julio Antonio Flores Iraheta on March 20, 2014 (Evidence, volume X, affidavits, page 4741); Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to submission of the case, folio 1897), and press release published in the "Diario Latino" on October 29, 1981, entitled " 'Wrap Attack' Army in East Zone" (record of evidence, volume IV, Annex 14 to the submission of the case, Folio 1902). 88 Cfr . Statement made before notary public (affidavit) by Julio Antonio Flores Iraheta on March 20, 2014 (Evidence, volume X, affidavits, page 4741); Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to submission of the case, folio 1897), and press release published in the "Diario Latino" on October 29, 1981 entitled " 'Wrap Attack' Army in East Zone" (record of evidence, volume IV, Annex 14 to the submission of the case, Folio 1902). 89 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to the submission of the case, folios 1897-1900).
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63. On October 25, 1981 Santos Ernesto Salinas, who had almost nine years age, was with his father and the young Wilber Torres near his home. approaching the soldiers, the children and young Torres fled to the home of the aunt of the latter, called
Tomasa Torres, who had a shop on the site 90 . Santos Ernesto's father was ordered to
he retired or be killed, so he went to his home 91 .
64. Members of the National Guard and the Atlacatl Battalion stormed the place where Santos Ernesto Salinas found and captured all who were present.
Then they drove them to the river bank and killed all who were not children 92 . A Santos
Ernesto Salinas it to some unknown 93 . Local residents saw that day members National Guard carrying two children, one of whom was matched with the description
Santos Ernesto Salinas physics 94 . Julio Antonio Flores Iraheta performed actions to seek
his brother the next day, to no avail 95 .
65. After the conflict ended, the family made several efforts to find Santos Ernesto Salinas and October 22, 1998 presented the case to the Association Pro-
Search 96 .
66. In August 2002, Mrs. María Adela Iraheta approached the Attorney General's Republic, home of San Vicente, to lodge a complaint for the forced disappearance of her son, which was not received, the grounds that it was due in the city of San
Salvador 97 .
67. In October of that year, señora Iraheta filed an application for habeas corpus favor of his son Santos Ernesto Salinas before the Constitutional Chamber of the Supreme Court
Justice 98 . Along with this writing the respective birth of Santos Ernesto was provided
Salinas and offered as evidence the testimony of a witness 99 . The investigating judge in charge of process reported that "[...] not exis [aunt] any investigation or proceedings instituted against favored, so not made available investigations or proceedings initiated against the now favored [...] why the habeas corpus [...] [could be] object
90 Cf. Statement made before notary public (affidavit) by Julio Antonio Flores Iraheta on March 20, 2014 (Dossier of evidence, volume X, affidavits, folios 4741-4742) https://translate.googleusercontent.com/translate_f 23/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
9291 Facts acknowledged by the State. 93 Cfr . Statement made before notary public (affidavit) by Julio Antonio Flores Iraheta on March 20, 2014 (Dossier of evidence, volume X, affidavits, folios 4741-4742) and habeas corpus application before the Chamber Constitutional Supreme Court by María Adela Iraheta on October 17, 2002 (evidence file, Volume IV, Annex 13 to the submission of the case, folio 1897). 94 Facts acknowledged by the State. Cfr . Also habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to submission of the case, folio 1897). 95 Cf. Statement made before notary public (affidavit) by Julio Antonio Flores Iraheta on March 20, 2014 (Dossier of evidence, volume X, affidavits, folios 4741-4742) 96 Cfr. Telefax issued by the Pro-Search Association on February 2, 2005 (record of proceedings before the Commission, volume II, page 969). 97 Facts acknowledged by the State. 98 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to the submission of the case, folios 1897-1900). 99 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to the submission of the case, folios 1897-1900).
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legal "study 100 . On 3 March 2003 the Constitutional Chamber of the Supreme Court
Justice dismissed the habeas corpus process 101 , arguing that the applicant had not "Brings [do] anything which leads to believe that in fact we have a case forced disappearance of persons "and that" in this situation, and given that this room has to give its opinion only saying the petitioner, and moreover with the report submitted [...] whereby performing facts refuses [...] indicated, it w [] from
dismiss the [...] habeas corpus " 102 .
68. From October 25, 1981 is not aware of the whereabouts of Santos Ernesto Salinas.
D. Events related to the forced disappearance of Emelinda Lorena Hernández
69. Emelinda Lorena Hernández was born on March 18, 1981 in the municipality of San Miguel 103 .
She is the daughter of María Adela Hernández 104 and Jose Juan de la Cruz Sánchez 105 and sister of Joel Alcides
Hernández Sánchez 106 . Juan Evangelista, José Cristino, Eligorio Ofelia Hernandez and Rosa are his uncles
maternal 107 . The family was also made by the grandmother of Emelinda Lorena Hernández,
Valentina Hernández, and his life partner Santiago Pérez 108 . In 1981, when the facts, Emelinda Lorena Hernández lived with his family in Canton La Joya, Township
Meanguera, Morazán department 109 .
70. Between 8 and 16 December 1981 it was carried out a large military operation
Dimensions in northern Morazan department 110 . Such operation was called
100 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 217-2002 on March 3, 2003 (record of evidence, volume IV, Annex 15 to the submission of the case, folios 1904). 101 Cf. Order issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 217-2002 on March 3, 2003 (record of evidence, volume IV, Annex 15 to the submission of the case, folios 1904-1906). 102 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 217-2002 on March 3, 2003 (record of evidence, volume IV, Annex 15 to the submission of the case, folio 1905). 103 Cf. Birth certificate Emelinda Lorena Hernández issued by the Registry of the Family Status Municipality of San Miguel (dossier of evidence, volume V, attachment 19 to the pleadings, motions and evidence, Folio 2339). 104 Cf. Birth certificate Emelinda Lorena Hernández issued by the Registry of the Family Status Municipality of San Miguel (dossier of evidence, volume V, attachment 19 to the pleadings, motions and evidence, Folio 2339), and single identity document María Adela Hernández issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4958). 105 Name used in the death certificate. Cfr. Death certificate of José Juan de la Cruz Sánchez https://translate.googleusercontent.com/translate_f 24/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… issuedannexes by to the the Register final written of Family arguments, Status folioof the 4959), Municipality and statement of Villa made de Meanguera before notary (evidence public file,(affidavit) volume by XI, María Adela Hernandez on March 20, 2014 (record of evidence, volume X, affidavits, folio 4739). 106 Cfr. Unique Identity Joel Alcides Hernandez Sanchez issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4961). 107 Cf. Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Dossier of evidence, volume X, affidavits, folio 4739), and Record of interview Juan Evangelista Hernandez Perez before the National Civil Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629). 108 Cf. Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Record of evidence, volume X, affidavits, folio 4739). 109 Facts acknowledged by the State. 110 Cfr . Report issued by the Office of Tutela Legal of San Salvador on November 9, 1991 (evidence, volume IV, appendix 17 to submitting the case, page 1972) and Case Massacres The Mozote and places Vs. nearby El Salvador, supra , para. 83.
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"Operation Rescue" or "hammer and anvil", carried out by the Reaction Infantry Battalion Immediate "Atlacatl" along with other units of the Salvadoran Armed Forces, and under the
which they occurred Massacres of El Mozote and surrounding areas 111 . Family Emelinda Lorena Hernandez, upon learning of the imminent military incursion, fled to the hills across the river La
Joya, seeking protection 112 . After several days running and product exhaustion, Emelinda Lorena Hernández parents decided to return to Canton La Joya and leave to care
a woman named Marta Ramirez, who in turn had four children 113 .
71. Emelinda parents Lorena Hernandez returned to the mountain and at night heard
shooting 114 . The soldiers arrived at the house of Mrs. Marta Ramírez and executed those there
present 115 . Hearing the shots, the father of Emelinda Lorena Hernández returned to the place
night, to see what had happened 116 . However, he found the body of his daughter, but as
only his shoes and a blanket 117 . Several people living in the area have seen asserted
Loading military young children 118 . Emelinda Lorena Hernández was nearly 10 months old at time of his disappearance.
72. After the conflict, the family made several inquiries to find Emelinda Lorena Hernandez and March 15, 1996 presented the case to the Association Pro-
Search 119 . On 31 May 1996 the Pro-Search Association submitted to the Procurator Defense of Human Rights a list of several complaints before that Association of relatives of disappeared children, including the relative was at the
disappearance Emelinda Lorena Hernández 120 .
111 Cf. Case Massacres of El Mozote and surrounding areas v El Salvador, supra , paras. 73 to 76, 83 and 84. 112 Cf. Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Dossier of evidence, volume X, affidavits, folios 4739-4740), and Record of interview Juan Evangelista Hernández Pérez before the Civil National Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629). See Also, Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 99. 113 Cf. Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Evidence, volume X, affidavits, pages 4739-4740); Minutes interview Juan Evangelista Hernández Pérez before the Civil National Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629), and Witness interview María Adela Hernández to the Attorney General of the Republic of March 18, 2010 (Record of proceedings before the Commission, volume III, folios 1631-1632). 114 Cf. Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Dossier of evidence, volume X, affidavits, folios 4739-4740) and interview witnesses María Adela Hernández before the Attorney General of the Republic of March 18, 2010 (record of proceedings before the Commission, volume III, folios 1631 1632). 115 Cfr . Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Dossier of evidence, volume X, affidavits, folio 4740), and Record of interview Juan Evangelista Hernandez Perez before the National Civil Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629). 116 Cf. Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Dossier of evidence, volume X, affidavits, folio 4740), and Record of interview Juan Evangelista Hernandez Perez before the National Civil Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629). 117 Cfr . Statement made before notary public (affidavit) by María Adela Hernández on March 20, 2014 (Dossier of evidence, volume X, affidavits, folio 4740), and Record of interview Juan Evangelista Hernandez Perez before the National Civil Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629). https://translate.googleusercontent.com/translate_f 25/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
(Dossier118 Cfr of . evidence,Statement volumemade before X, af fidavits,notary public folio 4740),(affidavit) and byRecord María of Adela interview Hernández Juan Evangelista on March 20,Hernandez 2014 Perez before the National Civil Police on March 2, 2010 (record of proceedings before the Commission, volume III, folio 1629). 119 Cfr. Telefax issued by the Pro-Search Association on February 2, 2005 (record of proceedings before the Commission, volume II, page 971). 120 Cfr . Telefax issued by the Pro-Search Association addressed to the Ombudsman for the Defense of the Rights Humans May 31, 1996 (record of evidence, volume IV, Annex 7 to submitting the case, folio 1875), and Listing of cases filed by the Pro-Search Association to the Office for the Defense of Human Rights 31 May 1996 (record of proceedings before the Commission, volume II, pages 982-985).
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73. On November 15, 2002 María Adela Hernández filed an application for habeas corpus before the Constitutional Chamber of the Supreme Court by the disappearance of her daughter
Emelinda Lorena Hernández 121 . Along with this writing the respective birth certificate provided
Emelinda Lorena Hernández and offered as evidence the testimony of a witness 122 . Judge executing process manager reported that "according to information provided by the Human Rights Department of the Ministry of Defense, ha [d] files on Emelinda Lorena Hernández and therefore ha [d] violation of article 11 paragraph one of the
Constitution " 123 . On 3 March 2003 the Constitutional Chamber of the Supreme Court
and he dismisses the habeas corpus 124 . The Chamber argued that the applicant had not "bring [do] no element that leads to the conclusion that indeed we have a case forced disappearance of persons "and that" in this situation, and given that this room has to give its opinion only saying the petitioner [...], and moreover with the report submitted by serving judge, by which the performance of the facts refuses [...] indicated,
It is [d] from dismiss the [...] habeas corpus " 125 .
74. On March 13, 2013 Ms. María Adela Hernández was quoted by the Magistrate's Court Meanguera, Morazán department to inform you that the State had requested information
the process of forced disappearance of Emelinda Lorena Hernández 126 , and that the magistrate had communicating extended certification that there was "no document type you relate [o] the [disappearance of Emelinda Lorena Hernández] either entered as Demand [ sic ] complaint
or notice from any person " 127 .
75. On 13 September 2013 the Magistrate of Meanguera Prosecutor requested the Subregional San Francisco Gotera progress of the investigation into the forced disappearance of Emelinda Lorena Hernández, as "having elapsed time m [a] s that reasonable and not have news on the progress of the investigation [...] is appropriate to request just that, an advance
research that must be done because this date of the [Prosecutor] " 128 .
76. On 14 May 2014 the Chief Prosecutor's Office requested the Court Morazán Peace Meanguera whether to report on 12 December 1981 recognition corpse was carried out
121 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Hernandez on November 15, 2002 (record of evidence, volume V, appendix 23 to the pleadings, motions and evidence, folios 2367-2370). 122 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Hernandez on November 15, 2002 (record of evidence, volume V, appendix 23 to the pleadings, motions and evidence, page 2370). 123 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 238-2002 on March 3, 2003 (record of evidence, volume IV, Annex 20 to the submission of the case, folio 2000). 124 Cf. Order issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 238-2002 on March 3, 2003 (record of evidence, volume IV, Annex 20 to the submission of the case, folios 2000 to 2002). 125 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 238-2002 on March 3, 2003 (record of evidence, volume IV, Annex 20 to the submission of the case, folio 2001). 126 Cfr. Act of notification of March 13, 2013 (record of evidence, volume XI, certification errands Meanguera Magistrates' Court in the Department of Morazan, folios 5063 and 5064). 127 Report of the Secretary of Justice of the Peace of Meanguera of March 8, 2013 (record of evidence, volume V, https://translate.googleusercontent.com/translate_f 26/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Annex 21 to the pleadings, motions and evidence, folio 2347). 128 Resolution issued by the Judge of Peace of Meanguera on 13 September 2013 (record of evidence, volume XI, certification proceedings of the Magistrate's Court Meanguera in the Department of Morazan, folios 5070-5072).
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Unidentified children in that jurisdiction and / or the child Emelinda Lorena Hernández 129 . The report the Secretary of the Court indicated that there are no documents prior to 1993 and explained "that According to reports from inhabitants of [the town of Meanguera], during the armed conflict [in the Salvador], this Court facilities were totally destroyed by the guerrillas
Salvadoran [...] " 130 . He also confirmed that "there is no related information or registration with [Emelinda Lorena Hernández] as recorded in the respective books "available from
1993 131 .
77. From December 12, 1981 is not aware of the whereabouts of Emelinda Lorena Hernández.
AND. Facts relating to enforced disappearances of Manuel Antonio Bonilla and Ricardo Abarca Ayala
78. Manuel Antonio Bonilla was born on December 7, 1971 in the canton of Cerros San Pedro,
San Esteban Catarina municipality, department of San Vicente 132 . Manuel Antonio Bonilla's son
Maria de los Ángeles Osorio and Jose de la Paz Bonilla 133 and brother of José Arístides Bonilla 134 and
María Inés Bonilla de Galan 135 . Her maternal grandmother is María Josefa Rosales 136 . Also were part
of María Esperanza Alvarado and Luis Alberto Alvarado family 137 .
79. Ricardo Abarca Ayala was born on February 5, 1969 in the canton of Cerros San Pedro,
San Esteban Catarina municipality, department of San Vicente 138 . Ricardo Abarca Ayala's son
Juan José Ayala and Petronila Abarca Alvarado 139 , and brother of Daniel 140 , José Humberto 141 ,
Ester 142 , and Osmin 143 . His family was also made by her grandmother Paula Alvarado 144 .
129 Cfr. Job 265/2014 of 14 May 2014 (record of evidence, volume XI, certification of court proceedings Meanguera Peace in the Department of Morazan, folio 5075). 130 Report of the Secretary of Justice of the Peace of Meanguera of May 15, 2014 (record of evidence, volume XI, certification proceedings of the Magistrate's Court Meanguera in the Department of Morazan, folio 5077). 131 Cfr. Report of the Secretary of Justice of the Peace of Meanguera of May 15, 2014 (record of evidence, volume XI, certification proceedings of the Magistrate's Court Meanguera in the Department of Morazan, folio 5077). 132 Cf. Birth certificate Manuel Antonio Bonilla issued by the Register of Family Status of the Mayor Municipal de la Villa de San Esteban Catarina (dossier of evidence, volume IV, Annex 22 to the submission of the case, folio 2009). 133 Cf. Birth certificate Manuel Antonio Bonilla issued by the Register of Family Status of the Mayor Municipal de la Villa de San Esteban Catarina (dossier of evidence, volume IV, Annex 22 to the submission of the case, folio 2009); Unique identification of Mary of the Ángeles Osorio Vda. Bonilla issued by the National Registry of Natural persons (record of evidence, volume XI, annexed to the final written arguments, folio 4928), and Certificate death of Jose de la Paz Bonilla issued by the Register of Family Status of the Municipality of San Esteban Catarina (dossier of evidence, volume XI, annexed to the final written arguments, folio 4929). 134 Cfr. Single identity document Aristides Jose Bonilla Osorio issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4930). 135 Cfr. Unique Identity of María Inés Bonilla de Galan issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4932). 136 Cfr. Unique identity document Osorio Maria degli Angeli Vda. Bonilla issued by the National Registry Natural Persons (dossier of evidence, volume XI, annexed to the final written arguments, folio 4928). 137 Facts acknowledged by the State. 138 Cf. Birth certificate issued by Ricardo Abarca Ayala Family Status Registry of the Municipality Municipal de la Villa de San Esteban Catarina (dossier of evidence, volume IV, Annex 23 to the submission of the case, folio 2011). 139 Cf. Birth certificate issued by Ricardo Abarca Ayala Family Status Registry of the Municipality Municipal de la Villa de San Esteban Catarina (dossier of evidence, volume IV, Annex 23 to the submission of the case, folio 2011), and unique Identity of Petronila Abarca Alvarado issued by the National Registry of Persons Natural (record of evidence, volume XI, annexed to the final written arguments, folio 4921).
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80. Between 17 and 24 August 1982 a military operation deployed large proportions in the department of San Vicente, in which they participated, among others, members of Fifth Infantry Brigade and Infantry Battalions of Immediate Reaction (BIRI)
"Atlacatl" and "Juan Ramón Belloso" 145 . Such operation was called "Lieutenant Colonel Mario
Azenón Palma " 146 , also known by the civilian population as the" ring invasion. " At the beginning
operating, villagers were forced to flee their homes and seek refuge in the bush 147 . Among this population, the family of Manuel Antonio Bonilla was, who met with
other families in the same situation 148 .
81. During this operation, in the framework of a shooting near the village of Las Guayabillas, the Canton Amatitán Below, the family of Manuel Antonio Bonilla separated from the rest of the families which they fled, and then met with the boy Ricardo Abarca Ayala, who cradled her
Sister Esther 6 years of age 149 . On August 22, 1982, after three days of walking,
140 Cfr. Unique Identity of Daniel Ayala Abarca issued by the National Registry of Natural Persons (Dossier of evidence, volume XI, annexed to the final written arguments, folio 4923). 141 Cf. Birth certificate of José Humberto Abarca Ayala issued by the Registry of the Family Status Municipality of San Esteban Catarina (dossier of evidence, volume XI, annexed to the final written arguments, folio 4926). 142 Cfr. Unique Identity of Esther Abarca Ayala issued by the National Registry of Natural Persons (Dossier of evidence, volume XI, annexed to the final written arguments, folio 4924). 143 Cf. Birth certificate issued by Osmin Abarca Ayala Family Status Registry of the Municipality Municipal de San Esteban Catarina (dossier of evidence, volume XI, annexed to the final written arguments, folio 4927). 144 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4744), and unique Identity of Petronila Abarca Alvarado issued by the National Registry of Natural Persons (dossier of evidence, volume XI, annexed to the final written arguments, folio 4921). 145 Cfr . Press release published in the newspaper "La Prensa Grafica" on August 19, 1982 entitled "Operation Cleaning FA in S. Vicente "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folio 2403); Photojournalism published in the "Diario Latino" on August 19, 1982 entitled "Coordinated actions counter-insurgency "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folio 2423); Press release published in the newspaper "La Prensa Grafica" on August 23, 1982 entitled "FMLN suffer many low "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folios 2393-2394); Note press appeared in "El Diario de Hoy" on August 25, 1982 entitled "Operation Successfully Finish 'Cnel. Palm'" (Record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folios 2434-2435); Note of Press appeared in "The World" on August 24, 1982 entitled "Reported end of Operation 'Lieutenant Colonel Mario Alberto Azenón Palma ' "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folio 2404), and Press release published in the newspaper "La Prensa Grafica" on August 25, 1982 entitled "Successful operation ends FA "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folios 2396-2397). 146 Cfr . Press release published in the newspaper "La Prensa Grafica" on August 23, 1982 entitled "FMLN suffers great casualties "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folios 2393 to 2394), and press release appeared in the newspaper "La Prensa Grafica" on August 25, 1982 entitled "Successfully ending FA operation "(record of evidence, volume V, attachment 30 to the pleadings, motions and evidence, folios 2396 to 2397). 147 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 148 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 149 Cfr . Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014.
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group stopped in the area known as Dry Gorge to feed and rest 150 . Some
people continued way, but when he approached the soldiers managed to hide 151 . The people who remained in a sugar cane plantation decided to hide in the Quebrada Seca. However, they were discovered by a group of soldiers who fired
against them 152 . At that time, they captured Manuel Antonio Bonilla 153 . Ricardo Abarca Ayala and his sister Esther, who had taken refuge in the gorge were later discovered by soldiers and captured along with María Josefa Rosales, María Esperanza Alvarado and Mauricio
Osorio Alvarado 154 . After walking a few kilometers, the soldiers left free to María Josefa
Rosales, for his advanced age, handing Ester Abarca Ayala and Mauricio Osorio Alvarado 155 . Several testimonies indicate having seen the two children and a woman in the barracks
Sensuntepeque 156 . At the time of his capture Manuel Antonio Bonilla and Ricardo Abarca Ayala They were 10 and 13 years respectively.
82. The family made numerous efforts to find children Manuel Antonio Bonilla and Ricardo Abarca Ayala. The report of the Commission on the Truth for El Salvador published in 1993 on the lists as killed by "indirect sources"
at the hands of the Armed Forces of El Salvador 157 .
83. On 20 January 1996 the case was before the Pro-Search Association 158 . 31 May 1996 Pro-Search Association submitted to the Ombudsman for the Defense of Human Rights a list of several complaints filed with the Association for Family
150 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 151 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 152 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 153 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folio 4745), and statement made before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 154 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folios 4745-4746), and testimony given before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 155 Cfr . Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folios 4745-4746), and testimony given before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 156 Cf. Statement made before notary public (affidavit) by Esther Abarca Ayala on March 21, 2014 (file of evidence, volume X, affidavits, folios 4745-4746), and testimony given before the Court by José Arístides Bonilla Osorio during the public hearing held on April 1, 2014. 157 Cfr. Report of the Commission on the Truth for El Salvador, "From Madness to Hope", Annexes, Volume II, # 6. List victims submitted to the Commission of Truth "from" Source Indirectly, "pp. 16 and 20 (record of the process before the Commission, volume II, pages 916-918). In this regard, the Pro-Search Association explained that the family did not attend directly to the Truth Commission but conducted negotiations with other agencies to denounce both children were victims of the actions of the Armed Forces of El Salvador. Also stated that "[p] robablemente, the inclusion in the lists of people killed is because 1993 Salvadoran families kept few hopes of children captured by the armed forces remain alive. " Written Association Pro-Search of November 10, 2006 (record of proceedings before the Commission, volume II, page 1049). 158 Cfr. Telefax issued by the Pro-Search Association on February 2, 2005 (record of proceedings before the Commission, Volume II, page 970).
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84. On 18 February 2002 Petronila Abarca Alvarado Mrs. filed an application for habeas corpus before the Constitutional Chamber of the Supreme Court's disappearance
his son Ricardo Abarca Ayala 160 . Along with this writing the respective item was provided
birth of Ricardo Abarca Ayala and offered as evidence the testimony of a witness 161 . To its After the December 25, 2002 Maria Ángeles Osorio filed an application for habeas Similar corpus before the Constitutional Chamber of the Supreme Court's disappearance
his son Manuel Antonio Bonilla 162 . Along with this writing the respective item was provided Birth of Manuel Antonio Bonilla.
85. Under the habeas corpus on Ricardo Abarca Ayala, the Head of State Joint Staff of the Armed Forces said, at the request of the investigating judge appointed to this process, that "in reviewing the files of that body, and the various military units, not seem [ed] records or information relating to the possible restriction or deprivation of freedom of movement [of Ricardo Abarca Ayala] in the place and date specified in the request
display or other dates and locations " 163 . Defense Minister ruled identical
terms 164 . Under this, the March 6, 2003 the Constitutional Chamber of the Court Supreme Court of Justice dismissed the habeas corpus process, arguing for it that " impetrante [had contributed] no element carr [d] to consider that in effect [is
were] a case of forced disappearance of persons " 165 .
86. Under the habeas corpus Manuel Antonio Bonilla on the Head of Joint Staff of the Armed Forces said, at the request of the investigating judge appointed for that process, "to review the files of that body, and the various units military not seem [ed] records or information relating to the possible restriction or deprivation of freedom of movement [...] of Manuel Antonio Bonilla Osorio minor, in place and date
159 Cfr . Telefax issued by the Pro-Search Association addressed to the Ombudsman for the Defense of the Rights Humans May 31, 1996 (record of evidence, volume IV, Annex 7 to submitting the case, folio 1875), and Listing of cases filed by the Pro-Search Association to the Office for the Defense of Human Rights 31 May 1996 (record of proceedings before the Commission, volume II, pages 982-985). 160 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Petronila Alvarado covers the February 18, 2002 (record of evidence, volume V, appendix 31 to the pleadings, motions and evidence, folios 2439-2442). 161 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Petronila Alvarado covers the February 18, 2002 (record of evidence, volume V, appendix 31 to the pleadings, motions and evidence, folios 2439-2442). 162 Cf. Writ of habeas corpus before the Constitutional Chamber of the Supreme Court by Maria degli Ángeles Osorio on December 25, 2002 (record of evidence, volume V, attachment 27 to the pleadings, motions and evidence, folios 2381-2384). 163 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 18-2003 on March 6, 2003 (record of evidence, volume V, appendix 32 to the pleadings, motions and evidence, folios 2447-2449). 164 Cf. Order issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 18-2003 on March 6, 2003 (record of evidence, volume V, appendix 32 to the pleadings, arguments and evidence, folios 2447-2449). 165 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 18-2003 on March 6, 2003 (record of evidence, volume V, appendix 32 to the pleadings, motions and evidence, folios 2447-2449).
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mentioned in the request display or other dates and locations " 166 . Minister of Defense He spoke in the same terms and, by becoming the Fifth Infantry Brigade was manifested
that "they had no information regarding the case" 167 . Under this, on 26 May 2003 Constitutional Chamber of the Supreme Court dismissed the habeas corpus, arguing for it that "impetrante [d] provided any evidence https://translate.googleusercontent.com/translate_f 30/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… carr [ed] to consider that in fact [were] a case of forced disappearance people ' 168 .
87. From August 22, 1982 is not aware of the whereabouts of Manuel Antonio Bonilla Ricardo Abarca Ayala or.
VII BACKGROUND
88. Then the Court will open the chapters to analyze on violations relating to enforced disappearances and violations related investigations into the matter, in accordance with the expressed above in Chapter IV.
VII-1 VIOLATIONS RELATED TO FORCED DISAPPEARANCE: RIGHTS TO PERSONAL LIBERTY, HUMANE TREATMENT, LIFE, RECOGNITION OF LEGAL PERSONALITY, AND PRIVATE LIFE FAMILY, TO IDENTITY, PROTECTION OF THE FAMILY, And GIRL AND CHILDREN, IN RELATION TO THE OBLIGATION TO RESPECT And guarantee rights
89. In this chapter, the Court will define what the appropriate scope of violations related to enforced disappearances, taking into account the particularities of this practice against children in the Salvadoran context.
TO. The forced disappearance of the child and children as multiple rape and Continued human rights and duties of respect and guarantee (Articles 7, 5, 4.1 and 3 in conjunction with Article 1.1 of the Convention)
A.1. Arguments of the parties and the Commission
90. Both the Commission and the representatives argued that the facts of this case must be classified as forced disappearances and, therefore, the State of El Salvador You should be held responsible for the violation of the rights to personal liberty, integrity personal life and recognition of legal personality, enshrined in Articles 7, 5, 4 and 3 of the American Convention, in relation to the obligations established in Article 1.1 of thereof, to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala.
166 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 25-2003 on May 26, 2003 (record of evidence, volume V, attachment 28 to the pleadings, motions and evidence, folios 2387-2389). 167 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 25-2003 on May 26, 2003 (record of evidence, volume V, attachment 28 to the pleadings, motions and evidence, folios 2387-2389). 168 Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 25-2003 on May 26, 2003 (record of evidence, volume V, attachment 28 to the pleadings, motions and evidence, folios 2387-2389).
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91. The State acknowledged its responsibility for violations of Articles 7, 5, 4 and 3 American Convention determined with reference to the report on the merits of the Commission ( Supra para. 20).
A.2. Considerations of the Court
92. In international law the jurisprudence of the Court has been a precursor to the consolidation of a comprehensive perspective on the severity and the continuing nature or standing figure of forced disappearance of persons, in which the act of disappearance and https://translate.googleusercontent.com/translate_f 31/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… execution start with the deprivation of liberty of the individual and the subsequent lack of information about your destination, and remains as the whereabouts of the person is unknown
disappeared and determine with certainty the identity 169 . In short, the practice of disappearance forced a crass abandonment involves the essential principles on which the system is based
Inter human rights 170 and both its prohibition and the correlative duty
investigate and eventually punish those responsible, they have attained the status of jus cogens 171 .
93. Under the established facts and recognition of state responsibility, it is shown that State agents, specifically members of the Salvadoran Armed Forces, Rochac stole Jose Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, from day 12 December 1980 25 October 1981 12 December 1981 and 22 August 1982, respectively, in the different course of counterinsurgency operations during the armed conflict in El Salvador. Because that has not been determined so far subsequent whereabouts or fate of Joseph Rochac Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, the Court considers that they are still subject to enforced disappearance.
94. The Court reiterates its case law regarding the forced disappearance It constitutes a multiple violation of rights protected by the American Convention places the victim in a state of complete helplessness, implying other related violations, It is particularly serious when applied as part of a systematic pattern or practice or
condoned by the State 172 .
95. The characterization of the disappearance as multiple offenses, as the rights affected, and continued or permanent, it has been consistently affirmed in jurisprudence
of the Court since its first contentious case decided in 1988 173 even before the
definition in the Inter - American Convention on Forced Disappearance of Persons 174 .
169 Cf. Case of Ibsen Cárdenas and Ibsen Peña v Bolivia. Merits, Reparations and Costs. Judgment of September 1, C 2010. Series No. 217, para. 59, and Case Gudiel Álvarez et al ( "Military Journal") v Guatemala. Repairs Fund and Costas. Judgment 20 November 2012. Series C No. 253, para. 195. 170 Cf. Case of Velásquez Rodríguez v Honduras. Background, supra , para. 158, and Case Osorio Rivera and Family Vs. Peru. Preliminary Objections, Merits, Reparations and Costs. Judgment of 26 November 2013. Series C No. 274, para. 112. 171 Cfr. Goiburú et al v Paraguay, supra , para. 84, and Case Osorio Rivera and Family Vs. Peru, supra , para. 112. 172 Cfr. Goiburú et al v Paraguay, supra , para. 82, and Case of García and Family Vs. Guatemala. Background, Reparations and Costs . Judgment of 29 November 2012. Series C No. 258, para. 96. 173 Cf. Case of Velásquez Rodríguez v Honduras. Background, supra , para. 155, and Case of Contreras et al v El Salvador, supra , para. 82. 174 The Convention provides that "enforced disappearance is considered the deprivation of liberty to one or more persons, whatever its form, committed by agents of the State or by persons or groups of persons acting with the
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This characterization is consistent with other definitions contained in different instruments
International 175 pointing as concurrent and constitutive elements of the disappearance Forced: a) the deprivation of liberty; b) direct involvement of governmental officials or acquiescence, c) refusal to acknowledge the detention and reveal the fate or
whereabouts of the person concerned 176 .
96. Because of the considerations in Chapter IV on the recognition of responsibility based on the facts established ( supra paras. 52-87), in the preceding Contreras et al v El Salvador and in terms of acknowledgment of responsibility International effected by the State, the Court finds that enforced disappearances girl and children victims in this case were a multiple and continuous violation of their rights to personal liberty, personal integrity, life and recognition of legal personality in relation to the duties of respect and guarantee. Accordingly, the Court declares the State of El Salvador responsible for the forced disappearances José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, and https://translate.googleusercontent.com/translate_f 32/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
American,consequent in violation conjunction of the with rights Article recognized 1.1 ther ineof. Articles 7, 5, 4.1 and 3 of the Convention
97. American Court emphasizes the seriousness of the facts sub judice , which occurred between 1980 and 1982, which are part of the bloodiest phase of the armed conflict in El Salvador ( supra paras. 47 and 48). Certainly the disappearance of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca no They constituted isolated incidents, but are inserted into the state's systematic pattern of forced disappearances of children which took place during the armed conflict in El Salvador disappearances ( Supra paras. 49 and 50). This was recognized by the State ( supra para. 19).
B. Rights of girls and boys and their families, protection family, private and family life, and identity (Articles 11.2 and 17 relation to Articles 19 and 1.1 of the American Convention)
B.1 Arguments of the parties and the Commission
98. The Commission argued that considering that all the alleged victims were children and girls at the time of enforced disappearance is pertinent to analyze the obligations arising from Article 17 of the Convention, read in conjunction with Article 19 of the Convention. To the respect, argued based on an interpretation of the American Convention in light of the corpus juris on children's rights, still in an exceptional situation, the State through its agents should ensure the protection of the family institution as an essential mechanism for protection of the rights of children within its jurisdiction. If separation occurs
authorization, support or acquiescence of the State, followed by lack of information or refusal to acknowledge the deprivation of liberty or information on the whereabouts of the person, which the exercise of legal remedies is prevented and relevant procedural safeguards. " Article II of the Inter-American Convention on Forced Disappearance of Persons adopted in Belem do Para, Brazil, on June 9, 1994, at the twenty fourth regular session The general assembly. 175 Cfr. Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearances Enforced, UN Doc A / RES / 61/177 of December 20, 2006.; Article 7, paragraph 2, point i) of the Rome Statute of the International Criminal Court, UN Doc. A / CONF.183 / 9 of 17 July 1998, and the Working Group on Disappeared Enforced or Involuntary, General Comment on Article 4 of the Declaration on the Protection of All Persons from Enforced Disappearance of 15 January 1996. Report to the Commission on Human Rights. A Doc. E / CN. 4/1996/38, para. 55. 176 Cf. Case of Gómez Palomino vs. Peru. Merits, Reparations and Costs. Judgment of November 22, 2005. Series C No. 136, para. 97; Anzualdo Castro vs. Peru case. Preliminary Objection, Merits, Reparations and Costs. Judgment of 22 September 2009. C Series No. 202, para. 140, and Case Osorio Rivera and Family Vs. Peru, supra , para. 113.
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a child regarding his immediate family, he considered that the State should seek to preserve that link temporarily intervening and directing their actions to return the child to his family and community as long as it is not contrary to their best interests.
99. In the present case, the Commission said it was the same Salvadoran State that, through its armed forces, he caused the separation of the alleged victims of their families origin through enforced disappearance. He also said that the soldiers who appropriated boys and girls alleged victims in this case did not attempt to establish their identity allowing family reunification, but on the contrary, they sought separation from their families origin, according to state strategy "take the water from the fish" which was to attack mainly rural populations in areas that were considered guerrilla activity. Furthermore, it claimed that this violation is continuing nature to date, since they have not been take adequate and effective measures to make a serious search for the alleged victims and determine their fate or whereabouts. For the Commission, this omission has prevented during more than three decades restoring family ties and, consequently, identity of the alleged victims.
100. The Commission stressed the inherent relationship between the right to family life and the right to identity, which are particularly affected in cases of forced disappearance of children and girls. The Commission argued that the breakdown of the family structure and the separation of children and https://translate.googleusercontent.com/translate_f 33/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
butgirls "irreversible in her family loss, generates in many not cases only of that identity". children The remain Commission in absolute also vulnerability noted that , the impact of family breakdown includes not only individual and family, but also the social sphere with inter-generational effects, why considered important that the Court established these distinctive affectations in case of disappearance of children "that incorporate a dismemberment of the household and had a significant social impact and undeniable by the massive and widespread nature of these violations. "
101. In sum, the Commission concluded that the Salvadoran State failed to fulfill its obligations set out in Article 19 of the American Convention, in conjunction with Article 1.1 thereof , to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala. The Commission also concluded that the State breached its duty of protection enshrined in Article 17 of the Family American Convention, in relation to the obligations under Article 1.1 of the same , to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca and relatives identified.
102. The representatives argued that disappear when children were subject special protection under Article 19 of the American Convention, and that the State He had a duty to respect the ownership of children to their families omitting actions that may affect family stability detriment of vulnerable beings such as minors. The representatives added that the forced disappearance of children and child from the family means a breakdown in relationships, in the care and personal care. They alleged that the State had not assumed "responsibility for the healing of these traumas, the which it would be possible only by recognizing that the private grief of the families in question has an origin structural, historical and political causes that compromise not only the same State not but for having committed attend to. " They also argued that based on an approach psycho-traumatology systemic, has failed to establish that the forced disappearance as done traumatic severely damages the bonds of family, causes an emotional chaos that is inherited, involuntarily and unconsciously, affecting generations family life. They claimed that in addition to the generations who lived directly traumatic fact, future generations will suffer the breaking of ties. Thus,
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They argued that the state is in breach of the duty to guarantee and the right to repair protection of the family with the lack of investigation, prosecution, punishment and reparation for the violations against families.
103. The State acknowledged its responsibility for violations of Articles 17 and 19 of the American Convention determined with reference to the report on the merits of the Commission ( Supra para. 20).
B.2 Considerations of the Court
104. Article 17 of the American Convention recognizes that the family is the element critical of society and it must be protected. The family that every girl and boy has law is mainly to their biological family, including closest relatives, which must provide protection to the child and the child and, in turn, must be paramount object of measures
protection by the State 177 . The Court has already indicated that this right implies not only and directly implement measures to protect girls and boys, but also
favor of the more broadly, development and strength of the family unit 178 , since mutual enjoyment of coexistence between parents and children is a key element in the
family life 179 . The Court has already established in its jurisprudence that the separation of girls and children from their families is, under certain conditions, a violation of law in
question 180 .
105. The Court has also stated that Article 11.2 of the American Convention 181 , which It recognizes the right of everyone to be protected against arbitrary or abusive interference family life, also called "family life" - is part implicitly the right to https://translate.googleusercontent.com/translate_f 34/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
protection of the family 182 . 106. For its part, Article 19 of the Convention establishes the obligation to adopt measures special for any girl or boy under his status protection, which radiates its affects the interpretation of all other rights when the case concerns under age. In this regard, the Court has considered that adequate protection of the rights of girls and Children, as subjects of rights, must take into account its own characteristics
177 Cf. Case Vs. Argentina Fornerón and daughter. Merits, Reparations and Costs. Judgment of April 27, 2012. Series C No. 242, para. 119, and rights and guarantees of children in the context of migration and / or in need of protection international.Advisory Opinion OC-21/14 of 19 August 2014. Series No. 21, para. 272. 178 Cf. Juridical Status and Human Rights. Advisory Opinion OC-17/02, supra, para. 66; if Chitay Nech Vs. Guatemala. Preliminary Objections, Merits, Reparations and Costs. Judgment of May 25, 2010. Series C No. 212, para. 157, and Case Dominican and Haitian deportees vs. Dominican Republic. exceptions Preliminary Objection , Merits, Reparations and Costs. Judgment of 28 August 2014. Series C No. 282, para. 414. 179 Cf. Juridical Status and Human Rights. Advisory Opinion OC-17/02, supra, para. 72; Slaughter case Vs. of Dos Erres Guatemala. Preliminary Objection, Merits, Reparations and Costs. Judgment of 24 November C 2009. Series No. 211, para. 189, and Case Dominican and Haitian deportees vs. Dominican Republic, supra , para. 414. 180 Cf. Case of the Dos Erres Slaughter vs. Guatemala, supra , para. 187, and Case Dominicans and Haitian Vs. expelled Dominican Republic, supra , para. 414. 181 Article 11. Protection of Honor and Dignity [...] 2. No one shall be subjected to arbitrary or abusive interference with his private life, his family, in his home or correspondence, nor to unlawful attacks on his honor or reputation. [...] 182 Cf. Case Atala Riffo and Girls Vs. Chile. Merits, Reparations and Costs. Judgment of February 24, 2012. Series C No. 239, para. 170, and rights and guarantees of children in the context of migration and / or in need of protection international.Advisory Opinion OC-21/14 , supra , para. 265.
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and the need to foster their development by providing the necessary conditions to live and
develop their skills with full use of their potential 183 . In order to define the content and scope of the obligations undertaken by the State when analyzing the rights of girls and boys will draw the Court, as it has done on previous occasions, the
corpus juris international protection of girls and boys 184 .
107. Thus, it can be noted that the provisions contained in the Convention on the Rights of
Child 185 , which make up the corpus juris of the rights of children 186 , shows that the State must not only refrain from interfering unduly in private relationships or family girl and child, but also that, under the circumstances, should adopt measures
positive to ensure the full exercise and enjoyment of their rights 187 . This requires the State, responsible for the common good, safeguards the important role of the family in protecting the boy; and assist the public to the family, by adopting measures
promote family unit 188 .
108. The Court notes that Articles 17 and 19 of the American Convention are constitutive the core inderogable not be suspended, in accordance with Article 27 of the American Convention.
109. The Court considers it useful and appropriate, as it has done on other occasions 189 , the analyze and interpret the scope of the standards of the Convention in this case the events occurred in the context of an international armed conflict and non-conformity Article 29 of the American Convention, resort to other international treaties such as
the Geneva Convention of August 12, 1949 190 and in particular article 3 common to the four
Conventions 191 , Protocol II Additional to the 1949 Geneva Conventions on the protection of
183 Cfr . Legal Status and Human Rights. Advisory Opinion OC-17/02, supra , para. 61, and Rights and guarantees of children in the context of migration and / or in need of international protection. Advisory opinion OC-21/14 , supra , para. 66. 184 Cf. Case of the "Street Children" (Villagrán Morales et al) v Guatemala. Background. Judgment of 19 November https://translate.googleusercontent.com/translate_f 35/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
1851999. CEl Series Salvador No. is63, part para. of the194, Convention and Case Fornerón on the Rights and Daughterof the Child Vs. since Argentina, 10 July supra 1990, , para.which 44. entered into force on September 2, 1990, in accordance with Article 49.1. 186 Cfr . Case of the "Street Children" (Villagrán Morales et al) v Guatemala. Background, supra , para. 194, and Rights and guarantees of children in the context of migration and / or in need of international protection. Advisory opinion OC-21/14 , supra , para. 57. 187 Cfr. Articles 7, 8, 9, 11, 16 and 18 of the Convention on the Rights of the Child. 188 Cf. Case of the Dos Erres Massacre vs. Guatemala, supra , para. 190, and Case Contreras et al v El Salvador, supra , para. 107. 189 Cf. Case of the Ituango Massacres Colombia. Preliminary Objection, Merits, Reparations and Costs . Judgment 1 July 2006. C Series No. 148, para. 179, and Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 141. 190 Cfr., In particular the Geneva Convention relative to the Protection of Civilian Persons in Time of War, adopted on 12 August 1949 by the Diplomatic Conference for the Establishment of International Conventions for protect victims of war, held in Geneva from 12 April to 12 August 1949, which entered into force on 21 October 1950 and was ratified by El Salvador on June 17, 1953. 191 Common Article 3 of the Geneva Conventions of 1949 provides: "non-international conflicts: In case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties Each of the Contracting Parties to the conflict shall be bound to apply, as a minimum, the following provisions: 1) Persons taking no active part in the hostilities, including members of the armed forces They have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction based on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. In this regard, They are prohibited at any time and place, as regards the above-mentioned persons: a) violence against life and person, in particular murder of all kinds, mutilation, cruel treatment, torture
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victims of armed conflict not of an international character of 8 June 1977 (hereinafter
"Additional Protocol II") which the State is part 192 , and international humanitarian law
Customary 193 , as complementary instruments and taking into consideration their specific in the matter.
110. International humanitarian law generally safeguard the children as part of the civilian population, that is, people who do not actively participate in hostilities, who should be treated humanely and not be attacked. Fit Further, girls and children who are more vulnerable to violations of their rights during armed conflicts, are beneficiaries of special protection based on age, reason why States should provide care and assistance
They need. Article 38 of the Convention on the Rights of the Child 194 also reflects this beginning. The catalog of measures of this kind that incorporate treaty law humanitarian are those whose objective is to preserve the family unit and facilitate the search, identification and family reunification of dispersed families because of a armed conflict and, in particular unaccompanied children and separated. Furthermore, in the context of non-international armed conflicts, the state's obligations for children defined in Article 4.3 of the Additional Protocol II to the Geneva Conventions, which states, among others, that: "b) appropriate measures must be taken to facilitate the reunion of families
temporarily separated [...] " 195 .
111. In light of the foregoing considerations, incumbent on the State protection civilians in armed conflict and especially girls and children who in a situation of greater vulnerability and risk affected their rights. For him However, in this case the State agents acted completely outside the law, using state structures and facilities to perpetrate
and torture; b) taking hostages; c) the two attentive upon personal dignity, in particular humiliating treatment and degrading; d) the passing of sentences and executions without previous judgment pronounced by a regularly constituted court, with judicial guarantees which are recognized as indispensable by civilized peoples. 2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. In addition, the Parties to the conflict shall endeavor to bring into force, by special agreements, all or part of the other provisions of this Convention. The application of the above provisions shall not affect the legal status of the Parties to the conflict. " 192 El Salvador is part of Additional Protocol II to the Geneva Conventions of 1949 relating to the protection of victims of armed conflict not of an international character since November 23, 1978. https://translate.googleusercontent.com/translate_f 36/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… 193 Cfr. International Committee of the Red Cross, Customary International Humanitarian Law, vol. I, I edited by Jean-Marie Henckaerts and Louise Doswald-Beck, 2007. 194 Article 38 stipulates that: 1. States Parties undertake to respect and ensure that the rules of international law are respected Humanitarian applicable to them in armed conflicts which are relevant to the child. 2. States Parties shall take all feasible measures to ensure that persons who have not yet under 15 years old not taking direct part in hostilities. 3. States Parties shall refrain from recruiting into their armed forces persons who have not attained 15 year old. In recruiting among those persons who have attained 15 years but are under 18, States Parties They endeavor to give priority to older. 4. In accordance with their obligations under international humanitarian law to protect the population civil during armed conflicts, States Parties shall take all feasible measures to ensure protection and care of children affected by armed conflict. 195 According to the International Committee of the Red Cross this obligation has been defined as "[t] he parties conflict must do everything possible to re-establish family ties, ie not only allow searches undertake the members of dispersed families, but even facilitate them. " Commentary of Additional Protocol II to the 1949 Geneva Conventions on the protection of victims of armed conflict not of an international character. Section B. Meeting of Families, para. 4553 .
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forced disappearance of the girls and boys, through systematic repression that underwent certain sectors of the population considered subversive or guerrillas, or somehow contrary or opponents of the government. Accordingly, the Court He considers that the State conducted interference on the family life of the child then Emelinda Lorena Hernández and Jose Adrian Rochac children then Hernandez, Santos Ernesto Salinas, Manuel Antonio Bonilla and Ricardo Abarca Ayala, to withdraw them and hold them illegally infringed their right to remain with their family group and establish relationships with others part thereof, in violation of Articles 11.2 and 17 of the American Convention, relation to Articles 19 and 1.1 thereof.
112. In addition, the State should have used all reasonable means at its disposal to determine the whereabouts of the girl then Emelinda Lorena Hernández and then Jose Adrian Hernandez Rochac children, Santos Ernesto Salinas, Manuel Antonio Bonilla and Ricardo Ayala Abarca in order to reunite them with their families as soon as cores allow the circumstances. On this matter, the Court notes: (i) the time elapsed since the start of the disappearance of the girl and children without that so far has been determined their whereabouts or destination and proceeded to their identification; (Ii) the excessively delayed initiation of investigations criminal and little progress thereof which has not yielded relevant data with to determine the fate or destiny of the victims and the location of their whereabouts ( infra para. 144); (Iii) the National Search Commission, responsible for taking the necessary measures to investigate and collect evidence on the possible whereabouts of the young people who disappeared when They were children during the armed conflict, and thereby facilitate the determination of what happened and reunion with their families, only became operational in 2011; and (iv) despite the request of the Court, the State has not provided information on the start date of the Research at the National Search Commission regarding the victims in this case or of the concrete steps taken in relation to your search ( supra footnotes 9 and 10). To In light of the items listed, the Court finds that the State violated Article 17 of the American Convention, in conjunction with Articles 19 and 1.1 thereof, by failing to take all reasonable measures to achieve family reunification to the detriment of José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca.
113. In turn, the Court considers that these separations produced by state agents without which to date they have achieved family reunification, generated and continue to generate specific damages in each of the members of the families, as well as dynamic of each one of the families ( infra para. 121). For example, Mrs. María Juliana Rochac Hernandez said at the hearing that the facts caused "a breach of [their]
family " 196 . For his part, Mr. José Aristides Bonilla Osorio said that, following the facts,
"Practically he tore the family" 197 .
https://translate.googleusercontent.com/translate_f 37/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… enforced114. The disappearanceCourt also notes can the generate expert opiniontransgenerational received ( consequences.supra paras. 38 Martha and 43), Estimator according to which the Concepción Cabrera Cruz stated that "[w] hen the concept of trauma and the combined link You can formulate a principle which is a principle of systemic psycho-traumatology and transgeneracional-, a mother who has suffered a trauma has not healed and moved him inevitably that experience to your child in one way or another. Therefore a
196 Statement made before the Court by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 197 Statement made before the Court by José Aristides Bonilla Osorio during the public hearing held on April 1, 2014.
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traumatic experience continues to have effect in subsequent generations " 198 . Even more, held that "[t] families of disappeared persons feel they have themselves experienced the loss of their
children / as but actually in a collective problem " 199 and stated that" [a] war trauma collectively they suffered by thousands of people is stored and frozen in the unconscious
collective " 200 . Finally, he estimated that "healing should be for the family, that is, which is the family which was affected and the family should be allowed to have that healing space and, in turn, It is for the community, because if we see that this was the result of the war, the war affected the
community where the family "lived 201 .
115. For these reasons, the Court concludes that the State violated Articles 11.2 and 17 of the American Convention, in conjunction with Article 1.1 thereof, to the detriment of family identified in paragraph 34 above .
the Court has 116. However, as regards the right to identity, established in its case - specifically in the case Gelman Vs Uruguay and the Case of Contreras et al v The Salvador - "it can be conceptualized generally as the set of attributes and features that allow the identification of the person in society and, as such, It includes several other rights as the subject of rights in question and the circumstances
case " 202 . So that personal identity is closely linked to the person's specific individuality and privacy, sustained both in a historical and biological experience, and in the way that individual with others is related, through the development of
ties in family and social level 203 . Similarly, the Court has recognized that identity is a right that comprises several elements, including and without limitation, the
nationality, name and family relations 204 . In this regard, the Court recalls that the American Convention protects these elements as rights themselves. However, no all these rights will necessarily be involved in all cases that are linked to the right to identity. In this case, the involvement of the right to identity It reflected in the acts of arbitrary or abusive interference with privacy and family, as well as violations of the right to protection of the family and enjoy family relationships.
117. Thus, in the circumstances of this case and considering the context of the terms of the American Convention, interpreted in the light of Article 31 of the Vienna Convention, the Court finds that violations of the rights established in the American Convention were previously analyzed constitute a violation of the right to identity, which is inherent in the human being in terms of Article 29-c) of the American Convention, and is expressly stipulated in the Convention on the Rights of the Child.
C. The right to humane treatment of family
198 Expert opinion rendered by Martha de la Concepción Cabrera Cruz before the Court at the public hearing held on April 1, 2014. 199 Expert opinion "transgenerational Sequels of enforced disappearances" yielded by Martha de la Concepción Cabrera Cruz, March 2014 (merits file, volume I, page 747). 200 Expert opinion "transgenerational Sequels of enforced disappearances" yielded by Martha de la Concepción Cabrera https://translate.googleusercontent.com/translate_f 38/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Cruz, March 2014 (merits file, volume I, page 748). 201 Expert opinion rendered by Martha de la Concepción Cabrera Cruz before the Court at the public hearing held on April 1, 2014. 202 Gelman Case Vs. Uruguay. Merits and Reparations. Judgment of 24 February 2011. Series C No. 221, para. 122, and Fornerón case and Daughter Vs. Argentina, supra , para. 123. 203 Cf. Case of Contreras et al v El Salvador, supra , para. 113, and Case Fornerón and Daughter Vs. Argentina, supra , para. 123. 204 Cf. Case Gelman vs. Uruguay, supra , para. 122, and Case Contreras et al vs. El Salvador, supra , para. 112.
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C.1 Arguments of the parties and the Commission
118. Both the Commission and the representatives alleged the violation of the right to personal integrity of the relatives of the girl and the missing children José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca for the suffering caused by disappearances and uncertainty about the fate or whereabouts of the same. The state , meanwhile, acknowledged the violation of Article 5 of the Convention to the detriment of family, determined based on the background report Commission ( supra para. 20).
C.2 Considerations of the Court
119. The Court has considered in numerous cases that the relatives of victims of violations
Human rights can be, in turn, victims 205 . In cases involving disappearance Forced to persons, the Court has considered it possible to presume damage to the integrity
mental and moral of certain family 206 . This presumption is established rebuttable regarding mothers and fathers, sons and daughters, spouses, permanent companions, provided that
corresponds to the particular circumstances of the case 207 . This Court has also established that As part of an enforced disappearance, that presumption also applies to the sisters and brothers of the disappeared victims, unless proven otherwise by circumstances
Specific case 208 . For such families, the State rebut that
presumption 209 . Regarding other alleged victims, the Court must consider whether the test
in the record that any impairment is credited to their personal integrity 210 .
120. In the present case, the State acknowledged its international responsibility for the violation of right to personal integrity of all the families of missing victims who were indicated by the Commission. In this context and taking into account the recognition of responsibility by the State, the Court presumes the violation of the right to integrity staff all relatives indicated in paragraph 34 above.
121. In addition to recognizing state responsibility, the Court observes that the received statements and expert opinion ( supra paras. 38 and 43) that the relatives of the victims saw one extent or another personal integrity affected by one or more of the following situations: (i) the disappearance of their loved one has generated sequelae level personnel, physical and emotional; (Ii) an irreversible alteration of its nucleus and family life that They characterized, among others, valuable fraternal relations; (Iii) they were involved in various actions such as seeking justice or information on the whereabouts of the
205 Cf. Case Castillo Páez vs. Peru. Background. Case 3 November 1997. Series C No. 34, Paragraph Fourth, and Case Veliz Franco et al v Guatemala. Preliminary Objections, Merits, Reparations and Costs. sentence May 19, 2014. Series C No. 277, para. 233. 206 Cf. Case of Valle Jaramillo et al v Colombia, supra , para. 119, and Case García and Family V. Guatemala, supra , para. 161. 207 Cf. Case Blake vs. Guatemala. Background. Judgment of 24 January 1998. Series C No. 36, para. 114; Gonzalez case Medina and family vs. Dominican Republic. Preliminary Objections, Merits, Reparations and Costs. Judgment of 27 February 2012 Series C No. 240, para. 270, and Case García and Family V. Guatemala, supra , para. 161. 208 Cf. Case Gudiel Álvarez et al ( "Military Journal") V. Guatemala, supra , para. 286, and Case Osorio Rivera and Family Vs. Peru, supra , para. 227. 209 Cf. Case of Valle Jaramillo et al v Colombia, supra , para. 119, and Case García and Family V. Guatemala, supra , para. 161. https://translate.googleusercontent.com/translate_f 39/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Araguaia)210 Cf. Casev Brazil. Ibsen Pr Careliminarydenas andObjections, Ibsen Peña Merits, v Bolivia, Reparations supra ,. para.Judgment 127, andof 24 Case November of Gomes 2010. Lund Series et al C(Guerrilha No. Do 219, para. 235.
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victims; (Iv) uncertainty surrounding the whereabouts of the victims hinders the possibility of duel, which helps prolong the psychological effects of family before the disappearance, and (v) lack of research and cooperation of the State in determining the whereabouts of the victims and perpetrators of disappearances aggravated the suffering different affectations these families. These circumstances have led to an impairment that extends in the time and still remains the continued uncertainty about the whereabouts of the child Emelinda missing Lorena Hernandez and José Adrián Rochac missing children Hernandez, Santos Ernesto Salinas, Manuel Antonio Bonilla and Ricardo Abarca Ayala.
122. Moreover, the jurisprudence of the Court has held that the deprivation of truth about the whereabouts of a victim of enforced disappearance leads to a form of cruel and
inhuman for close relatives 211 . In addition, the constant refusal of the authorities State to provide information on the whereabouts of the victims or start a effective in order to clarify what happened research has been considered by the Court,
accreting as a cause of suffering of relatives 212 . The circumstances of this case show that the five families affected by the disappearance of their sons and daughter watch her compounded by the deprivation of both truth about what happened and the whereabouts suffering of the victims, and the lack of cooperation of state authorities to establish that what truth thus he aggravated the violation of the right to personal integrity of the family.
123. The Court has established that the clarification of the final whereabouts of the victim disappeared allows relatives alleviate distress and suffering caused by uncertainty
about the fate of their missing family 213 . In this case, uncertainty and lack of information from the state about what happened, which endures as To date, it has been for the family a source of suffering and anguish, in addition to a feeling of insecurity, frustration and impotence in the face of authorities public to investigate the facts.
124. It is clear linking the suffering of the families with the violation of the right to know truth ( infra para. 170), illustrating the complexity of enforced disappearance and multiple effects it has caused. For example, Mrs. Maria Juliana Hernandez Rochac He said: "I've never taken the mind is my brother who took every I remember december and I wonder if my mother and if she'd found, because one asks a question that weight and walk saying if he was killed, where he was taken, as they have
treated, many questions " 214 . In turn, Mrs. María del Transito Hernandez said Rochac "Currently he recalls the events described before and every time you feel pain, sadness, anxiety, crying,
despair and wonders where his brother José Adrián Rochac is? " 215 . The familiars have physical and psychological consequences and the facts have been altered dynamics their families and communities. These affectations, fully understood the complexity of
211 Cf. Case Vs. Trujillo Oroza Bolivia. Reparations and Costs. Judgment of February 27, 2002. Series C No. 92, para. 114, and Case Gudiel Álvarez et al ( "Military Journal") V. Guatemala, supra , para. 301. 212 Cf. Case Blake vs. Guatemala. Background , supra , para. 114, and Case Osorio Rivera and Family Vs. Peru, supra , para. 228. 213 Cf. Case of Ticona Estrada et al v Bolivia . Merits, Reparations and Costs. Judgment of November 27, 2008. C Series No. 191, para. 155, and Case Osorio Rivera and Family Vs. Peru, supra , para. 249. 214 Statement made before the Court by Maria Juliana Hernandez Rochac during the public hearing held on April 1, 2014. 215 Statement made before notary public (affidavit) by María del Transito Hernandez Rochac on March 7, 2014 (Record of evidence, volume X, affidavits, folio 4750).
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enforced disappearance, will be shown in time as factors of impunity persist
Verified 216 ( infra Chapter VII-2).
125. Based on the foregoing considerations and in view of the recognition State responsibility, the Court concludes that the State violated the right to humane treatment recognized in Articles 5.1 and 5.2 of the American Convention in relation to Article 1.1 thereof, to the detriment of Alfonso Hernández Herrera, Rochac Sebastian Hernandez, Tanislao Rochac Hernandez, María Juliana Rochac Hernández, María del Transito Hernandez Rochac, Ana Margarita Hernandez Rochac, Nicolas Alfonso Torres Hernández, María Adela Iraheta, Julio Antonio Flores Iraheta, Felipe Flores Iraheta, María Estela Salinas de Figueroa, Amparo Salinas de Hernandez, Josefa Salinas Iraheta, Maria Adela Hernandez, Jose Juan de la Cruz Sanchez, Joel Alcides Hernandez Sanchez, Valentina Hernández, Santiago Perez, Juan Evangelista Hernandez Pérez, José Cristino Hernández, Eligorio Hernández, Rosa Ofelia Hernandez, Maria degli Angeli Osorio, Jose de la Paz Bonilla, Jose Aristides Bonilla Osorio, María Inés Bonilla de Galan, Maria Josefa Rosales, María Esperanza Alvarado, Luis Alberto Alvarado, Petronila Abarca Alvarado, Daniel Ayala Abarca, Jose Humberto Abarca Ayala, Ester Abarca Ayala, Ayala Abarca and Paula Osmín Alvarado.
VII-2 VIOLATIONS RELATED TO INVESTIGATIONS: RIGHTS TO PERSONAL LIBERTY, AND JUDICIAL GUARANTEES JUDICIAL PROTECTION IN RELATION TO THE OBLIGATION TO RESPECT AND ENSURING THE RIGHTS
Arguments of the parties and the Commission
126. The Commission argued that the available information on criminal cases indicates that, date, investigations related to enforced disappearances of José Adrián Rochac Ernesto Santos Hernandez and Salinas have not progressed beyond preliminary stages, or are paralyzed without the gathering of evidence to determine the circumstances of the disappearance of the victims, their whereabouts, or the possible perpetrators. The Commission considered the utmost gravity the passage of time since the state has taken note of the facts without there is provided an appropriate and diligent investigation of the facts; contributing to perpetuating impunity. For the Commission, available information indicates that the lack of results in the process it has been due to the inactivity of the authorities in charge of the investigation.
127. According to the Commission, the measures decided to look for the girl and children through habeas corpus lacked all diligence and confined themselves to regular treatment as if it were a deprivation of liberty under normal circumstances, regardless consideration that the allegations were part of a context in which it was credited one systematic pattern of disappearance of children, so that measures search They respond to the particularities of those facts. The Commission held that, in the five cases, the motivation of refusals of habeas corpus is so terse that it is possible derive the ineffectiveness of this remedy in practice.
128. During the public hearing, the Commission noted that, since no progress has been made in imputations and in identifying possible perpetrators, the amnesty law has not been applied in these cases. However, it considered that has a necessary effect generally on lack of investigation by the prosecution and advances by the judicial authorities. He said that these effects are so clear that, following the decision of the Court in the case of
216 Cfr. Goiburú et al v Paraguay, supra , para. 103, and Case Radilla Pacheco v. Mexico exceptions Preliminary Objection , Merits, Reparations and Costs. Judgment of 23 November 2009. Series C No. 209, para. 172.
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Massacres of El Mozote, it was necessary that an unconstitutionality is interposed against the Supreme Court so that it undertake a specific and concrete mandate and order, possibly as the result given in that unconstitutionality or mandate, the judicial authorities and the prosecution to continue with these investigations. In that sense, It considered that the effect of the force itself of the amnesty law is clearly reflected also in the lack of progress in investigations and response.
129. The Commission concluded that the Salvadoran State violated the rights to judicial guarantees and judicial protection enshrined in Articles 8.1 and 25.1 of the American Convention, conjunction with Article 1.1 thereof, to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala and his family identified.
130. The representatives recalled that the families have sought access to justice through suitable for locating children and child legal remedies, but 30 years after its disappearances, relatives express frustration and despair at not having been serious investigations by the state. They argued that the report of 2 September 2004 of the Ombudsman for the Defense of Human Rights on enforced disappearances the Serrano Cruz sisters and others, among which are mentioned the victims of this case was referred, among others, the Attorney General of the Republic, which should serve as criminis notitia and, because it is a public offense and a crime against humanity, had officially investigated according to domestic law, since the Attorney General also has monopoly investigation and prosecution.
131. With regard to the various resolutions issued by the Constitutional Chamber of the Court Supreme Court in habeas corpus proceedings in the sense of not granting protection Constitutional lack of evidence to support the existence of constitutional violations alleged, representatives recalled that it is the duty of a judge specially appointed for collect the test case being that all procedures reported in the same direction have simply requested reports to the Ministry of National Defense and the Chief of Staff Set of the armed forces, both responding officers that there is no record related detention of children of the respective operating.
132. With regard to the situation of impunity, representatives expressed concern because it has not been exercised in any of the fiscal processes criminal proceedings against the perpetrators and masterminds of enforced disappearances, which would denote that there is no progress substantial in investigations. They explained that most cases under investigation by the Prosecutors opened in 2009, ie almost 29 years after the events occurred and maintain research for almost 4 years without auxiliaries have been able to identify the perpetrators, but also the possible perpetrators intellectuals, who would be the highest authorities in those years acted in the Armed Forces and are publicly known for their participation in military operations in question, mainly those dates journalistic sources.
133. The representatives warned that, since 2000, there is a legal ambiguity the implementation of the judgment of constitutionality issued in the 24-97 and 21-98 records, according which the General Amnesty Law for the Consolidation of Peace was declared constitutional, but left open the power of judges to apply or inaplicarla in each case under its knowledge and where it is alleged by the parties under judicial review Diffuse attending judges, not prosecutors, who must abide by law remain the Republic. They said, therefore, that in this case neither has declared its inapplicability, because in any case it has been possible to attribute individual criminal responsibility. The representatives noted that "the ambiguous term of the amnesty law can be mischievously
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134. The representatives indicated that the date is not known the truth of what happened and the case continues with impunity to the failure to investigate by the Attorney General's Republic. In this line, they argued that the right to the truth as it relates to cases serious violations of human rights, especially with regard to crimes against humanity as in this case, is of particular dimension. The effects caused by the ignorance of the truth in cases of serious human rights violations and crimes against humanity "are pluriofensivos, because they affect individual and collective emotional integrity as a healthy social and political development of organized community, severely damaging their dignity as a group and its social fabric. " Ignorance of the truth in these cases generates a widespread impunity that makes it impossible to rebuild the social fabric and the consequent loss of confidence in the institutions responsible for implementing justice. Therefore, for representatives the right to the truth in this case is an individual right to due process research, a collective right of access to public information and also a right coinciding with the characteristics of democratic regimes political freedoms. In this case, the representatives alleged that the State violated the right to the truth about the fate or destiny of children since it has not established mechanisms to clarify the truth. Finally, they considered only the knowledge of the truth, by the means legally established, it is able to heal people, families and the entire Salvadoran society, therefore, it is an urgent duty of the state and its relevant institutions to investigate the truth, make it public and compensate the victims.
135. The State did not make a specific ruling on these allegations, but acknowledged the violation of Articles 8 and 25 of the Convention determined based on the report background of the Commission ( supra para. 20). However, the state warned that the amnesty law has not It has been applied in investigations of the facts of this case and referred to the judgment of constitutionality delivered on 26 September 2000 by the Constitutional Chamber of the Supreme Court in the 24-97 and 21-98 records, which opened the possibility that specific cases criminal judges deem the inapplicability of the Amnesty Act 1993, to human rights violations during the internal armed conflict, such as enforced disappearances. He also indicated that pending before the referring Chamber A new constitutional claim of unconstitutionality and referred a number of advances in internal case. With respect to the Attorney General's Office, he said it has been centralized in the Human Rights Unit of the institution, on the basis of a list of massacres raised in the context of past armed conflict, operational research work from the same.
Considerations of the Court
136. The Court notes that, as was established, three types of processes were initiated in El Salvador on enforced disappearances of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala: investigations violations of human rights before the Ombudsman for the Defense of Human Rights; criminal investigations to the prosecutor, and constitutional habeas corpus before the Constitutional Chamber of the Supreme Court.
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137. In light of the acknowledgment made by the State and taking into account the seriousness of the facts of this case, an analysis of the various processes started in order to determine whether they have been an effective remedy to secure the rights of access to justice, to know the truth and reparation for victims and their families, in the following order: a) duty to initiate an investigation ex officio ; b) lack of due diligence investigations criminal, and c) the habeas corpus proceedings. https://translate.googleusercontent.com/translate_f 43/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
138. In this order of considerations, the Court will address the legal and factual obstacles that have prevented compliance with the obligation to investigate the facts of enforced disappearances, creating a situation of impunity, based on what developed in the Case of Contreras et al v El Salvador regarding the basis of the obligation to investigate the facts of the disappearance forced and specificities it brings because it involves facts that are part of
the context of a systematic pattern of violations regarding girls and boys 217 .
139. The Court has held that the right of access to justice requires becomes effective the determination of the facts under investigation and, where appropriate, the corresponding criminal liability in reasonable time, so that, in view of the need to ensure the rights of injured persons, a prolonged delay can constitute, by itself
itself a violation of judicial guarantees 218 . The Court has also stated that organs State conducting the investigation related to the forced disappearance of persons, whose objectives are determining their whereabouts and clarify what happened, identification of those responsible and possible sanction they should carry out their task diligently and
Comprehensive 219 . It should be recalled that in cases of forced disappearance, is essential prompt and immediate tax authorities and court action ordering appropriate measures and necessary aimed at determining the whereabouts of the victim or the place where you can
Private meeting of freedom 220 . In this case such an obligation is reinforced by the fact the victims were children at the time of the events, one in early childhood, so the state had a duty to ensure that they were found at the earliest. The legal property on which rests the investigation require further efforts on measures be practiced to meet its goal because the passage of time has a relationship -and directly proportional to the limitations in some cases, the impossibility for the evidence and / or testimony, making it difficult and even becoming nugatory or ineffective, the practice of proceedings
Evidentiary to clarify the facts of research material 221 , identify potential authors and participants, and determine any criminal liability. Notwithstanding, national authorities are not exempt from making every effort in
compliance with its obligation to investigate 222 . The act omission or negligence of organs State is not consistent with the obligations under the American Convention, with
more so if they are playing essential property of persons 223 . Thus, states must scientists provide the necessary relevant authorities of the logistical resources and
217 Cf. Case of Contreras et al v El Salvador, supra , paras. 126-130. 218 Cf. Case of Hilaire, Constantine and Benjamin et al v Trinidad and Tobago. Merits, Reparations and Costs . sentence 21 June 2002. Series C No. 94, paras. 142 to 145, and Case Osorio Rivera and Family Vs. Peru, supra , para. 192. 219 Cf. Case of Velásquez Rodríguez v Honduras. Background, supra , para. 177, and Case of Contreras et al v El Salvador, supra , para. 145. 220 Cf. Case Anzualdo Castro v Peru, supra , para. 134, and Case Contreras et al vs. El Salvador, supra , para. 145. 221 Cf. Case of Heliodoro Portugal v Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment 12 August 2008. C Series No. 186, para. 150, and Case Osorio Rivera and Family V. Peru, supra , para. 185. 222 Cfr. Anzualdo Castro v Peru, supra , para. 135, and Case Palma Mendoza et al v Ecuador. Preliminary and Background. Case 3 September 2012. Series C No. 247, para. 94. 223 Cf. Case Vs. Garibaldi Brazil, Preliminary Objections, Merits, Reparations and Costs. Judgment of 23 September 2009. Series C No. 203, para. 130, and Case of Contreras et al v El Salvador, supra , para. 145.
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collect and process evidence and in particular the powers to access documents and relevant to investigate the allegations and to obtain evidence of information
location of victims 224 .
140. In turn, it is important to remember that the Court has considered the content of the right to know the truth in its jurisprudence, particularly in cases of enforced disappearance. In the case Velásquez Rodríguez v Honduras , the Court affirmed the existence of a "right to the relatives of
the victim to know what the fate of this and, where appropriate, where their remains " 225 . In such cases it is understood that the relatives of the disappeared person are victims of acts constituting enforced disappearance, which gives them the right to have the facts
investigated and those responsible are prosecuted and, where appropriate, punished 226 . The right to https://translate.googleusercontent.com/translate_f 44/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… know the truth of the relatives of victims of serious human rights violations
part of the right of access to justice 227 .
TO. Duty to initiate an investigation ex officio
141. From the evidence shows that the May 31, 1996 the representatives of the Association Pro-Busqueda filed an initial complaint with the Ombudsman for the Defense of Human rights (PDDH), in which a total of 141 cases of children exposed
victims of forced disappearance, all in the context of the Salvadoran armed conflict 228 . The Attorney issued a first ruling on March 30, 1998 under the docket number SS-0449-96, in which seven illustrative cases of forced disappearance of children referred during the armed conflict, which is designated as responsible for the aforementioned
disappearances members of the Armed Forces of El Salvador 229 . Following new data corresponding to disappearances of children during the armed conflict presented by the Pro-Search Association on March 5, 2002, the Ombudsman Human Rights issued a decision on 10 February 2003, establishing the breach of the institutional resolution of March 1998 and confirming "the obligation delegable State to investigate, prosecute and punish those responsible for the massacres, summary or arbitrary extrajudicial executions of people, forced disappearances and other serious
crimes reported and confirmed by the PDDH " 230 . In turn, on 2 September 2004 Attorney issued a new resolution which found non-compliance with resolutions 1998 and 2003, and reiterated the recommendations made, "especially with regard to those recommendations that promote full access to truth, justice and reparation
224 Cf. Case Vs. Tiu Tojin Guatemala, supra , para. 77, and Case Osorio Rivera and Family Vs. Peru, supra , para. 182. 225 Velásquez Rodríguez v Honduras case . Background, supra , para. 181. 226 Cf. Case Blake vs. Guatemala. Background, supra , para. 97, and Case Radilla Pacheco vs. Mexico, supra , para. 180. 227 Cf. Case of Velásquez Rodríguez v Honduras . Background, supra , para. 181; Anzualdo Castro vs. Peru case, supra , para. 118, and Case Gelman Vs. Urugua and , supra , para. 243. 228 Cfr. Telefax issued by the Pro-Search Association addressed to the Ombudsman for the Defense of the Rights Humans May 31, 1996 (record of evidence, volume IV, Annex 7 to submitting the case, folio 1875), and Listing of cases filed by the Pro-Search Association to the Office for the Defense of Human Rights 31 May 1996 (record of proceedings before the Commission, volume II, pages 982-985). 229 Cf. Case of Contreras et al v El Salvador, supra , para. 134, and report by Mrs Ombudswoman of Human Rights on Enforced of Ernestina and Erlinda Serrano Cruz disappearances, its current impunity and the pattern of violence surrounding such disappearances of September 2, 2004 (evidence file, volume occurred V, Annex 1 to the pleadings, motions and evidence, folios 2033-2037). 230 Report of the Attorney Lady for the Defense of Human Rights on forced disappearances of girls Ernestina and Erlinda Serrano Cruz, its current impunity and the pattern of violence that occurred such disappearances of September 2, 2004 (record of evidence, volume V, appendix 1 to the pleadings, motions and test, folio 2043).
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of relatives of children victims of enforced disappearance during the armed conflict " 231 . In that decision, the attorney said he had received information based on 136 cases of forced disappearances of children during the Salvadoran armed conflict disappearances, to which must be added the seven cases investigated by the Attorney General and presented in its Resolution 1998, which stated that "illustrates, with tragic clarity, common characteristics This high number of crimes against humanity and nature fully test
systematic and permanent in such a time " 232 . Among them, it included cases of "José Adrián Hernández Rochac "," Emelinda Lorena Hernandez Sanchez "," Manuel Antonio Bonilla Osorio "and" Ricardo
Ayala " 233 . In addition, he ordered notify its decision, among others, the Attorney General of the Republic, the
which became effective on September 7, 2004 234 . However, no evidence that they have initiated Criminal investigations in compliance with that resolution 2004 of the Attorney ( infra para. 144). In turn, as was recognized by the State, in the case of Santos Ernesto Salinas your mother would be presented in August 2002 to the Attorney General of the Republic filing a complaint which would have been received ( supra para. 66).
142. The Court reiterates that although a complaint with the Ombudsman may involve actions https://translate.googleusercontent.com/translate_f 45/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… effective and useful in cases of alleged violations of human rights, it is clear that the facts Also reported were brought to the attention of the Attorney General of the Republic, the
which corresponded initiate appropriate criminal proceedings 235 .
143. In view of the foregoing, the Court finds that, because the State did not start without delay a criminal investigation into what happened to José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, although it had knowledge that were missing at various times (supra para. 141), the State breached its duty to investigate ex officio these enforced disappearances.
B. Lack of due diligence in the criminal investigations
144. The Court has found that, in its submission, the Commission referred to the Research carried out until September 2003, at which only
He had opened an investigation into the forced disappearance of José Adrián Hernández Rochac 236 . He State forwarded a copy of the record of the investigation pending before the Tax Office Soyapango initiated by the facts of the forced disappearance of José Adrián Hernández Rochac
231 Report of the Attorney Lady for the Defense of Human Rights on forced disappearances of girls Ernestina and Erlinda Serrano Cruz, its current impunity and the pattern of violence that occurred such disappearances of September 2, 2004 (record of evidence, volume V, appendix 1 to the pleadings, motions and test, folios 2197-2198). 232 Report of the Attorney Lady for the Defense of Human Rights on forced disappearances of girls Ernestina and Erlinda Serrano Cruz, its current impunity and the pattern of violence that occurred such disappearances of September 2, 2004 (record of evidence, volume V, appendix 1 to the pleadings, motions and test, folio 2106). 233 Cfr. Report of the Attorney Lady for the Defense of Human Rights on enforced disappearances of Ernestina and Erlinda Serrano Cruz, its current impunity and the pattern of violence that occurred such disappearances of September 2, 2004 (record of evidence, volume V, appendix 1 to the pleadings, motions and test, folios 2125, 2127 and 2132). 2. 3. 4 Cfr. Act of notification to the Attorney General of the Republic of September 7, 2004 (record of evidence, volume IV, Annex 19 to the submission of the case, folio 1995). 235 Cf. Case of Contreras et al v El Salvador, supra , para. 135. 236 Regarding the disappearance of Santos Ernesto Salinas, the Commission stated that "[n] or has information about momentum and / or outcome of the criminal investigation. " Report No. 75/12 background issued by the Inter-American Commission on 7 November 2012, para. 224. However, it had previously indicated that "officials did not admit the complaint alleging due in the city of San Salvador , "which was recognized by the state. Cfr. Report Background No. 75/12 issued by the Inter-American Commission on 7 November 2012, para. 104.
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Following the complaint filed on April 12, 2002 by his father ( supra para. 57), with the information until October 30, 2013 (Fiscal record 321-UMM-D-02). On the other hand, Available information indicates that in 2009, a few days before the holding of the hearing before the Commission, they would have opened criminal investigations for disappearances Santos Ernesto Salinas forced to the Prosecutor's Office of San Vicente (tax file 908 UDVSV-2009), Manuel Antonio Bonilla and Ricardo Abarca Ayala before the Prosecutor's Office of San Vicente (Fiscal record 909-UDVSV-2009) and Emelinda Lorena Hernández Prosecutor's Office to San Francisco Gotera (tax file 908-UDVOFM-2009), which would be in stage
Initial investigation without the possible perpetrators has been individualized 237 . However, Commission did not include in its merits report the facts relating to such investigations. It is therefore that in this section, the Court shall establish the omissions and failures they incurred the authorities on the basis of the factual framework provided by the Commission, for which the State made its acknowledgment of responsibility, and evidence concerning the investigation into the forced disappearance of José Adrián Hernández Rochac.
145. From the information provided shows that, following the complaint by the forced disappearance of José Adrián Hernández Rochac in August 2003 was sought information about possible incursions by the army, taking her statement to the complainant and to a
neighbor 238 . Then procedural activity consists only since November 2009. That is,
research initially remained inactive for more than six years 239 . https://translate.googleusercontent.com/translate_f 46/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
146. evidentiary procedures were performed which consisted of: an interview with the victim 240 ; receive statements from the complainant himself who witnesses identified as 241 ; perform
diligence visual inspection, with planimetry and album of photographs of the scene 242 ;
officiate the General Staff of the Armed Forces 243 and the Minister of National Defense 244 , requiring information on members of the same as well as operating in the place and date of stating facts without response or, when there was it would not have found information
on conducting operations in the place and date of the facts 245 ; request permission to verify the judicial file the record of adoptions or foster processes performed between
237 See, eg, Letter from the Pro-Search Association to the Commission of Justice and Human Rights the Legislative Assembly of December 3, 2010 (record of evidence, volume V, Annex 33 to the pleadings, arguments and evidence, folios 2451-2467), which referred to the investigation regarding Emelinda Lorena Hernández, began on October 30, 2009, would have taken only three interviews. 238 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (evidence file, tome VIII, folios 3992 and 3993). 239 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (dossier of evidence, volume VIII, folio 4007). 240 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (evidence file, tome VIII, folios 4234-4236). 241 Cf. Declaration of Maria Juliana Hernandez Rochac December 7, 2010 obrante in the Attorney Docket 321- UMM-D-02 before the Prosecutor's Office of Soyapango (dossier of evidence, volume VIII, pages 4341-4345). 242 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (dossier of evidence, volume VIII, folio 4020 and 4258-4263). 243 Cfr. Trades 9 November 2009, March 26, 2010 and August 26, 2010 on the record Fiscal UMM-321-D-02 before the Prosecutor's Office of Soyapango (evidence file, tome VIII, folios 4009 to 4010; 4256 4257; 4317-4318). 244 Cfr. Trades November 29, 2010, March 4, 2013 and reply 8 March 2013 in obrantes Attorney Docket 321-UMM-D-02 before the Prosecutor's Office of Soyapango (dossier of evidence, volume VIII, pages 4327-4328, 4505 and 4524). 245 Cfr. Trades received on September 7 and December 22, 2010 Attorney Docket obrantes in the 321-UMM-D-02 before the Prosecutor's Office of Soyapango (evidence file, tome VIII, folios 4319 and 4351).
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1980 and 1993 246 ; apply for certification from the National Registry of Natural Persons of José Adrián Rochac Hernandez, the response being that there is no record of a single identity document
the person 247 , and controls 248 ; and check for possible land, air or migration
maritime Jose Adrian Hernandez Rochac without finding any record 249 .
147. Currently, investigations are ongoing, without having been identified or process linked to any of the possible perpetrators, pending performing some errands, such as requesting information again JCS, take witness statements and verifying the files relating to child adoption.
148. In analyzing the effectiveness of investigations carried out in the present case, the Court warns that the evidence shows that, although some research activity is found the authorities pursue investigations, all measures have not been exhausted to be carried out to identify the possible perpetrators of the facts and, where appropriate, link to the process.
149. Thus, no action was made to inspect hemerográfico material through which could possibly be obtained information about the people involved in operating
military that took place at the place and date of the events 250 or joined investigations the relevant sections of the Report of the Commission on the Truth for El Salvador in which the names of some of the soldiers who participated in operational states, such as
example as regards the Massacres of El Mozote and surrounding areas 251 . Similarly, in the conclusions reached by the Attorney General and the evidence compiled investigations They indicate military units allegedly involved in operating and have identified the names of some authorities in charge of them, but this information was not used in No line of investigation and neither was linked to process and cited declare any https://translate.googleusercontent.com/translate_f 47/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… member of the Armed Forces. This is, no attempt to provide greater evidence tending to confirm or rebut the responsibility of the accused persons.
150. The Court considers that in investigations has not been taken into account context of the facts, the complexity thereof, the patterns that explain their commission, Intricate people involved, nor the special position within the structure State, at that time, people who could be responsible. On this point, the Court has considered that the facts as alleged in this case, given the context and their complexity, it is reasonable to consider that there are different degrees of
246 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (evidence file, tome VIII, folios 4315-4316). 247 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (evidence file, tome VIII, folios 4323 and 4324). 248 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (evidence file, tome VIII, folios 4374-4375). 249 Cfr. Attorney Docket 321-UMM-D-02 before the Prosecutor 's Office of Soyapango (evidence file, tome VIII, folios 4526-4529). 250 For example, the expert Iglesias said that at the time of enforced disappearances in this case "[t] he force He armed and had used what was called the Press Committee of the COPRESA Armed Forces, which had reports are very clear where operations were underway, officials who were responsible, and that published and sent as press releases and [...] it published even the press, it ie no information ". Expert opinion rendered by Ricardo Alberto Iglesias Herrera before the Court at the public hearing held on May 17, 2011 in If Contreras et al v El Salvador. See also press releases in which the occurrence of operational outlined concerning these cases (dossier of evidence, volume V, attachment 30 to the pleadings, motions and evidence). 251 Cf. Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 84, citing Report of the Commission Truth for El Salvador, From Madness to Hope, the 12-year war in El Salvador, 1992-1993.
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responsibility at different levels 252 . However, this is not reflected in the research. Consequently, it also shows that the authorities of the investigations had followed research lines clear and logical that had taken account those elements. Moreover, deficiencies observed in gathering evidence. In this regard, the Court He considers that the State has not acted with diligence on this obligation.
151. As regards the proceedings to determine the possible location of victims missing, even though some actions may have been carried out by the Commission National Search or a few performances by the prosecution, the state has provided information indicating that it has exhausted all possible measures to the whereabouts of the victims, according to all possible effective measures to respond to modus operandi concerning disappearances of children during armed conflict,
which they were specified in the Case Contreras and others 253 . The Court notes that, in parallel to the Research carried out by the body responsible for criminal prosecution, currently the National Search Commission would also be conducting research in the framework of their powers to the whereabouts of missing victims ( supra para. 60). Court He warns that is not apparent from the evidence in the record that there is coordination between these two state bodies in order to achieve greater effectiveness in research.
152. The Court finds that the situation is verified coincident with determined timely fashion in respect of investigations conducted in cases Hermanas Serrano Cruz and Contreras and others , in which the investigative body had not diligently and
Comprehensive test all measures conducive and a situation of impunity is checked 254 .
153. For its part, the Pro-Search Association has identified based on their experience in these case ( supra para. 49), the following cross obstacles in investigations of girls and missing children: a) proceedings not collected, such as interviews with key witnesses They were individualized from the beginning of investigations; b) it has not been requests information or use of investigative powers to require state institutions provide relevant information in its possession; c) rotating auxiliary tax, which
prevents the continuity of processes and clear research strategy 255 . https://translate.googleusercontent.com/translate_f 48/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
154. The Court evidence in cases which have had knowledge there has been no serious and determined strategy research leading to the identification and prosecution of suspects. Thereon, in such cases, the Court has considered that the research authorities have a duty to ensure that in the course of the same systematic patterns that allowed the commission of serious violations are valued
human rights 256 , as in the present case. That is, they can not be considered isolated facts. Therefore, in order to ensure its effectiveness, research must be conducted taking into account the complexity of such events, which occurred in the context of operational
252 Cf. Case Radilla Pacheco vs. Mexico, supra , para. 203, and Case Osorio Rivera and Family Vs. Peru, supra , para. 194. 253 Cf. Case of Contreras et al v El Salvador, supra , para. 152. 254 Cf. Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs, supra , paras. 89-98 and 105 106, and Case of Contreras et al v El Salvador, supra , paras. 147-155 and 168-169. 255 Cfr. Letter Pro-Search Association addressed to the Attorney General of the Republic of February 22, 2013 (Record of evidence, volume V, attachment 12 to the pleadings, motions and evidence, folios 2312-2313). see Also, Charter Pro-Search Association to the Commission of Justice and Human Rights of the Assembly Legislative of December 3, 2010 (record of evidence, volume V, Annex 33 to the pleadings, motions and evidence, folios 2451-2467). 256 Cf. Case of the Rochela Slaughter vs. Colombia. Merits, Reparations and Costs . Judgment of 11 May 2007. Series C No. 163, para. 156, and Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 257.
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counter of the armed forces, and the structure in which people were located probably involved in them. Thus the State must make full use of its investigative powers in order to avoid failure in collecting evidence and in the Tracking logical lines of investigation in order to achieve effective determination of the whereabouts of missing victims, clarify what happened, identifying responsible and possible sanction.
155. Representatives, the Commission and the State agreed that the Amnesty Law General for Peacebuilding has not been applied in cases sub judice . However, the Commission and the representatives stated that the term, itself, of the Amnesty Law constitutes a disincentive for the authorities in charge of investigations ( supra paras. 128 and 133).
156. From the evidence, it appears that indeed the Legislative Decree No. 486 "General Amnesty Law for the Consolidation of Peace", dictated in El Salvador on March 20,
1993 257 , has not been specifically applied to close the investigation initiated following the facts of the case. the Court has nevertheless satisfied that, at least in the case of investigation into the disappearance of José Adrián Hernández Rochac, stated in the prosecutor's file copy of the Law of National Reconciliation and General Amnesty Law for Consolidation Peace, as well as a report reflecting a communication from the prosecutor in charge of research the human rights prosecutor, who would have indicated that the crime of enforced disappearance people was not subject to the application of the Act. This shows that, without clear institutional position in relation to the prosecution of cases like this case, doubts whether the amnesty law would apply or not in these cases, doubts persist that their turn are reflected in the meager advances in research verified.
157. From the information provided by the representatives and the State shows that to date the State has not taken measures to ensure respect of serious violations human that that law has not been able to generate effects, not have them in the present or the generate in the future. As regards the decision issued by the Constitutional Chamber of the Court Supreme of Justice on 26 September 2000 in the 24-97 and 21-98 records, the Court made noted in a previous case he had not brought result in practice reopening
investigations 258 . On the other hand, it has not proved the existence of an institutional guideline body responsible for criminal prosecution on the inapplicability of the Act in investigation of cases like the present case, which in turn could be generating that the collected proceedings respond to a mere formality but a firm decision to move in investigations. https://translate.googleusercontent.com/translate_f 49/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
158. The Court considers pertinent to recall that in cases Hermanas Serrano Cruz v The Salvador and Contreras et al v El Salvador concerning human rights violations associated the forced disappearance of children during the armed conflict, the Court held that Being serious human rights violations, and in consideration of the continuing nature or permanent forced disappearance whose effects do not stop until they are established or luck whereabouts of the victims and their identity is determined, the State must "refrain from
257 Legislative Decree into effect from March 22, 1993, which granted a "broad, absolute amnesty and unconditional amnesty to all persons who in any way participated in the commission of political crimes, These related common and common crimes committed by a number of people not less than twenty before first of January in 1992, whether against such persons judgment has any, has opened or not proceedings for the same crimes, granting this grace to all people who have participated ". Cfr. Legislative Decree No. 486, General Amnesty Law for the Consolidation of Peace , March 20 1993, published in the Official Gazette No. 56, Volume 318 of 22 March 1993 (record of evidence, volume VIII, folios 4016-4019). 258 Cf. Case Massacres of El Mozote and surrounding areas v El Salvador, supra , paras. 293 and 294.
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such as amnesty " 259 or any similar exemption from liability. Similarly, it is necessary to recall that the Court has already analyzed the content and scope of Legislative Decree No. 486 "General Amnesty Law for the Consolidation of Peace" in the Case of the Massacres of El Mozote and surrounding areas Vs. El Salvador , whose ruling determined that "[g] iven its manifest incompatibility with the American Convention, the provisions of the General Amnesty Law the Peacebuilding impeding the investigation and punishment of serious violations human rights occurred in [that] case without legal effect and therefore not They may continue to represent an obstacle to the investigation of [those] facts [...] and identification, prosecution and punishment of those responsible, nor can they have the same or similar impact regard to other cases of serious violations of human rights recognized in the Convention
American that it may have occurred during the armed conflict in El Salvador " 260 .
159. In short, it was for the authorities to promote research and channeling them correctly and timely since its inception to individualize and identify responsible for the disappearance and to determine the fate or the whereabouts of Joseph Rochac Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, all depending on the context in which they occurred. For the Court, the actions of the authorities responsible for promoting research has not been thorough and they have not allowed progress in the investigations and determining lines of research consistent. It is also necessary to emphasize that the internal investigation presents its first stage a long period of inactivity due to the absence of procedural activity ex officio by the organ in charge of the investigation, which in the judgment of the Court committed the seriousness and due diligence of it, because as time goes lapsing, is unduly affect ability to obtain and present relevant evidence to clarify the facts and determine the corresponding responsibilities.
160. The Court notes that having had more than 30 years into the implementation of facts and 12 years into the first investigation, criminal proceedings continue in their early stages, without has individualized, processed and eventually sanctioned none of those responsible, which has excessively exceeded the time limit can considered reasonable for this purpose. In view of the foregoing, the Court finds that the State it has not conducted serious, diligent and thorough investigations, within a reasonable time, the facts concerning the forced disappearances Jose Adrian Hernandez Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala.
161. In light of these considerations and recognition of State responsibility, the Court finds that the State failed to comply with the requirements of Articles 8.1 and 25 of the Convention, in conjunction with Article 1.1 thereof, to the detriment of José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca and their families. https://translate.googleusercontent.com/translate_f 50/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… C. Habeas corpus
162. The Court recalls that Articles 7.6 and 25 of the Convention cover different areas of
protection. Article 7.6 of the Convention 261 has its own legal content consisting of
259 Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs, supra , para. 172, and Case Contreras et al v El Salvador, supra , para. 185 (d). 260 Massacres case of El Mozote and surrounding areas v El Salvador, supra, para. 296. 261 Article 7.6 of the Convention states that "[e] very person deprived of liberty is entitled to recourse to a competent court, in order that court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide
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directly protect personal or physical freedom, through the injunction aimed at corresponding to bring the detainee that the presence of the judge authorities to this
You can examine the legality of deprivation and, where appropriate, order his release 262 . The Court has considered that the writ of habeas corpus or habeas corpus represents the ideal means guarantee freedom, control the respect for life and integrity of the individual, and prevent
disappearance or the keeping of his detention 263 . In this regard, the jurisprudence of the Court has already mentioned that these resources should not only exist formally in legislation but
They must be effective 264 . Since the principle of effectiveness ( effet utile ) is transverse to the Protection of all the rights recognized therein, the Court considers such
as it has done on other occasions 265 , in application of the principle iura novit curia , which has repeatedly relied international jurisprudence that a court has the faculty, and even the duty to apply the relevant legal provisions in a case, even
when the parts are not explicitly invoked 266 , an analysis of the arguments related the effectiveness of habeas corpus actions in relation to the provision cited and not the Article 25 of the Convention, as alleged by the representatives and the Commission recognized by the state.
163. In the present case comprises five habeas corpus proceedings were initiated before the Board of Supreme Constitutional Court, one for each one of the victims of forced disappearance, namely the 16 October 2002 by Alfonso Hernández Herrera for
José Adrián Hernández Rochac 267 ; on 17 October 2002 by María Adela Iraheta for
Santos Ernesto Salinas 268 ; on 15 November 2002 by María Adela Hernández for
Emelinda Lorena Hernández 269 ; on December 25, 2002 by Maria de los Angeles for Osorio
Manuel Antonio Bonilla 270 , and February 18, 2002 by Petronila Abarca Alvarado for
Ricardo Abarca Ayala 271 .
on the legality of such threat, this remedy may not be restricted or abolished. Resources may be lodged itself or else. " 262 Cf. Habeas Corpus under Suspension of Guarantees (arts. 27.2, 25.1 and 7.6 American Convention on Rights Human) . Advisory Opinion OC-8/87 of 30 January 1987 , Series A No. 8, paras. 33 and 34, and Case Contreras et al Vs. El Salvador, supra , para. 157. 263 Cf. Habeas Corpus under Suspension of Guarantees (arts. 27.2, 25.1 and 7.6 American Convention on Rights Human) . Advisory Opinion OC-8/87, supra , para. 35, and Case of García and Family Vs. Guatemala, supra , para. 142. 264 Cf. Case Vélez Loor vs. Panama. Preliminary Objections, Merits, Reparations and Costs. Judgment of 23 November 2010. Series C No. 218, para. 129, and Case Contreras et al vs. El Salvador, supra , para. 158. 265 Cf. Case Anzualdo Castro v Peru, supra , para. 77; Vélez Loor vs. Panama Case, supra , para. 123, and Case Contreras et al v El Salvador, supra , para. 157. 266 Cf. Case of Velásquez Rodríguez v Honduras . Background , supra , para. 163, and Case Suarez Peralta vs. Ecuador. Preliminary Objections, Merits, Reparations and Costs . Judgment of 21 May 2013. C Series No. 261, para. 92. 267 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Alfonso Hernández Herrera on October 16, 2002 (record of evidence, volume IV, Annex 11 to the submission of the case, folios 1890-1893). 268 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela Iraheta on October 17, 2002 (record of evidence, volume IV, Annex 13 to the submission of the case, folio 1897). 269 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by María Adela https://translate.googleusercontent.com/translate_f 51/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Hernandezevidence, page on November 2367). 15, 2002 (record of evidence, volume V, appendix 23 to the pleadings, motions and 270 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Maria degli Ángeles Osorio on December 25, 2002 (record of evidence, volume V, attachment 27 to the pleadings, motions and evidence, page 2381). 271 Cfr . Habeas corpus petition before the Constitutional Chamber of the Supreme Court by Petronila Alvarado covers the February 18, 2002 (record of evidence, volume V, appendix 31 to the pleadings, motions and evidence, page 2438).
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164. Surge of evidence that once admitted the habeas corpus was appointed each an executor judge. As for the measures carried out within the framework of the processes Habeas corpus, it appears that the executing judge merely officiate the Minister of Defense National and Chief of Joint Staff of the Armed Forces or inspect certain files, and he settled with the response received from the authorities on the absence record or history related to operational or the possible restriction or deprivation freedom of children and child then, without request an explanation of the mechanisms used by the authorities that would have allowed them to reach that conclusion ( supra paras. 58, 67, 73, 85 and 86).
165. By decision 3 272 and 6 273 March and 26 May of 274 , all of 2003, the Constitutional Court decided to dismiss the habeas corpus referred to under identical arguments. In its considerations the Constitutional Court distinguished these cases other precedent in declaring recognized the constitutional violation of the right to physical liberty, based on the following arguments: a) "that had elements that could generate a probability judgment about the existence of the violation of the right to physical liberty, elements leading to think, then, that in fact it was a case of forced disappearance people, such as, certification of birth, of less then heartwarming document that confirmed the existence thereof; and the report [...] in which it was stated that proceedings had been initiated to determine the whereabouts of the favored and appear in such proceedings, testimony to the fact agreed to affirm the existence of the operation and the disappearance of minor favored here "; b) "before the existence of a report submitted by the defendant authority in which he said had not registered no operating at the place and dates indicated by the pretensioner, the Board considered necessary make a contrast between the right to physical liberty of the favored and the refusal of the defendant authority on the existence of the fact in virtue of having failed to establish that such dead and grant minors would therefore custody the right to freedom physics favored here "; c) unlike the previous precedent, "the impetrante adduces no leading to consider that in fact we have a case of forced disappearance people, since it merely make a statement of facts relating to an alleged enforced disappearance, adding to his demand only certification departure then lower birth, which favored the birth of checks and registration to the competent authority, but it does not provide the slightest evidence of the existence of alleged constitutional violation "; d) "since this Court has to give its opinion only the ie the petitioner, and moreover with the report submitted by the defendant authority, by whereby the realization of the aforementioned facts is denied, it is appropriate sobreseer this process habeas, not stated [...] with minimal elements allow to establish a degree of probability of the existence of restrictions on the right of favored physical freedom, so to be not accredited specifically in the case of
272 Cfr . Resolution issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 216-2002 on March 3, 2003 (record of evidence, volume V, attachment 11 to the pleadings, arguments and evidence, folios 2308-2310); Resolution issued by the Constitutional Chamber of the Supreme Court Justice in the habeas corpus proceeding number 217-2002 on March 3, 2003 (record of evidence, volume IV, Annex 15 the submission of the case, folios 1904 to 1906) and Resolution issued by the Constitutional Chamber of the Supreme Court Justice in the habeas corpus proceeding number 238-2002 on March 3, 2003 (record of evidence, volume IV, appendix 20 the submission of the case, folios 2000 to 2002). 273 Cf. Order issued by the Constitutional Chamber of the Supreme Court in the process of habeas corpus number 18-2003 on March 6, 2003 (record of evidence, volume V, appendix 32 to the pleadings, arguments and evidence, folios 2447-2449). 274 https://translate.googleusercontent.com/translate_f 52/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… corpus Cf.number Order 25-2003 issued by on the May Constitutional 26, 2003 (record Chamber of evidence, of the Supreme volume CourtV, attachment in the process 28 to theof habeaspleadings, arguments and evidence, folios 2387-2389).
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disappearances forzadas- elements or 'evidence' is preferred to set the restriction of Freedom is therefore no object on which to rule "; e) that the above "no means return legal criteria and overcome, in which the check is required the 'detention' and also linked the 'forced disappearance' a mere criminal".
166. Unlike other precedents in which investigations were examined both the
Attorney as criminal field carried out so far in each case 275 , in the If José Adrián Hernández Rochac no information was requested from the Prosecutor who had received the complaint ( supra para. 144), data consisting in habeas application. In other cases, the absence of a criminal investigation was valued as an element to dismiss the habeas corpus. In addition, he cited not declaring persons offered as witnesses or those individualized control functions in each of the applications habeas ( supra paras. 58, 67, 73 and 84).
167. The Court has found that the Constitutional Chamber imposed a burden of proof They disproportionately on the applicants, since not performed diligently the procedural actions to collect all the evidence offered by them, taking into the broad powers of the investigating judge, which coupled with the refusal of the authorities military to provide information, the resource became ineffective. Also, this is reflected the fact that the systematic pattern of enforced disappearances were not taken into account children during the conflict and the systematic denial of the authorities of the Force Navy and the Ministry of National Defense to the judicial authorities and the Public Ministry
provide information and access to records and military records 276 and the same occurrence operating in cases of this nature, when the hemerográfico material is public knowledge and in part was provided in this case shows that did exist such operational and
It provides names, at least, people in charge of them 277 .
168. The Court recognizes that the State listed several advances in terms of resolutions habeas corpus proceedings relating to cases of forced disappearance of persons. Specifically, the State indicated that the Constitutional Chamber of the Supreme Court changed its approach jurisprudential and concluded that habeas corpus is an "ideal" mechanism to hear cases disappearance and different means currently accepted for verification
process object 278 . Although these jurisprudential changes represent legal progress for protection of missing persons and their families, these measures did not receive a sufficient to suppress in this case that the ineffectiveness characterized reach these processes regarding enforced disappearances during the armed conflict.
169. The Court finds, therefore, that the processes of habeas corpus were not attempted effective to determine the whereabouts of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, and also failed which is given by recognized constitutional violation of the right to physical liberty of all those nor that urge the Attorney General of the Republic to take the necessary measures according to their constitutional functions, so the Protection therethrough proved illusory.
275 Cf. Case of Contreras et al v El Salvador, supra , para. 160. 276 Cf. Case of Contreras et al v El Salvador, supra , para. 169. 277 See press releases in which the occurrence of operational outlined relating to these cases (file evidence, volume V, attachment 30 to the pleadings, motions and evidence). 278 Among others, the State mentioned resolutions issued by the Constitutional Chamber of the Supreme Court Justice of El Salvador in the habeas corpus 379-2000 and 378-2000 on 20 and 21 March 2002, and the habeas corpus 203/204 / 205-2007 on February 24, 2010.
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applying the principle iura novit curia, therefore, the Court finds that the State violated Article 7.6 of the American Convention, to the detriment of José Adrián Rochac Hernandez Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca and and their relatives.
D. conclusion
170. More than 30 years have passed since the forced disappearance of José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, without any of their material or intellectual authors have been identified and processing, and without even know the whole truth about the facts or their whereabouts. So such prevailing situation of impunity. Therefore, in this case the State has not yet satisfied the right of families to know the truth, which is subsumed in the right of victims or their families to obtain from the competent organs of the State clarification of the violations and the corresponding responsibilities, through
investigation and prosecution established in Articles 8 and 25.1 of the Convention 279 .
171. The breach of the duty to initiate an investigation ex officio in this case, absence of clear and logical lines of investigation that had taken into account the context of the facts and complexity of the same, long periods of procedural inactivity, negative to provide information relating to military operations, lack of diligence and comprehensiveness in the conduct of investigations by the authorities in charge of same, and the lack of coordination between the various state bodies, allow the conclusion to the Court that the internal processes in their entirety have not constituted effective remedies for determine the fate or the whereabouts of the victims, nor to guarantee the rights of access to justice and to know the truth through investigation and punishment of the responsible and full reparation for the consequences of violations.
172. In short, in this case an instrumentalization of state power was verified as
means and resource to commit the violation of the rights that they should respect and guarantee 280 , the which it has been favored by situations of impunity for these serious violations, organized and tolerated by the body of research that have not been consistent with each other nor sufficient for a due clarification of the facts and, consequently, have not satisfactorily the duty to effectively investigate enforced by the then children and child disappearances.
173. For the foregoing reasons, the Court concludes that the State violated the rights recognized in Articles 7.6, 8.1 and 25.1 of the American Convention, in conjunction with Article 1.1 thereof, to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, and their families.
VIII REPAIRS (Application of Article 63.1 of the American Convention)
174. On the basis of the provisions of Article 63.1 of the American Convention 281 , the Court has
279 Cf. Case Chitay Nech et al v Guatemala, supra , para. 206, and Case Osorio Rivera and Family Vs. Peru, supra, para. 220. 280 Cfr. Goiburú et al v Paraguay, supra , para. 66, and Case Massacres of El Mozote and surrounding areas Vs. The Salvador, supra , para. 300. 281 Article 63.1 of the Convention provides that "[c] Court finds that there violation of a right or freedom protected by [the] Convention, the Court shall rule that the injured party be ensured the enjoyment of his right or freedom
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indicated that any violation of an international obligation that has caused damage entails the duty to adequately redress and that this provision reflects a customary rule It is one of the fundamental principles of contemporary international law on
State responsibility 282 .
175. The repair of damage caused by the breach of an international obligation requires, whenever possible, full restitution ( restitutio in integrum ), consisting of restoration of the previous situation. If this is not feasible, as in most cases of human rights violations, the Court will determine measures to ensure the
violated rights and redress the consequences of the violations 283 .
176. The Court has established that reparations must have a causal link to the facts of case, the violations declared, accredited damage and the measures requested to repair the respective damage. Therefore, the Court must respect all these factors to
rule properly and according to law 284 .
177. Before examining the alleged reparations, the Court notes that this case is the third that has low awareness on human rights violations associated with enforced disappearances and appropriation of thousands of children during conflict Salvadoran armed, a phenomenon that has produced a variety of damages both in the field individually and collectively. Both in the case of the Serrano Cruz sisters as in the case Contreras and others , the Court ordered various measures to repair the damages of holistically, so that in addition to financial compensation, restitution and measures
rehabilitation, acquired special relevance satisfaction measures 285 and guarantees of non-
repeat 286 They arranged, whose general scope sought compensate severity of affectations and the collective nature of the damage beyond individual victims of the respective cases and establish itself as a factor towards future prevention of the occurrence Similar violations of human rights. In turn, as was highlighted in chapter above, in the case of the Massacres of El Mozote and surrounding areas the Court ordered, among other reparation measures that the State should ensure that the General Amnesty Law for Peacebuilding again not represent an obstacle to the investigation of the facts matter of the case or the identification, prosecution and punishment of those responsible of these and other serious violations of human rights are similar occurred during the armed conflict in El Salvador.
violated. also rule, if appropriate, that the consequences of the measure or situation to be remedied It constituted the breach of such rights and the payment of fair compensation to the injured party. " 282 Cf. Case of Velásquez Rodríguez v Honduras. Reparations and Costs . Judgment of 21 July 1989. C Series No. 7, para. 25, and Case Defensor Human Rights et al v Guatemala, supra , para. 243. 283 Cf. Case of Velásquez Rodríguez v Honduras. Repairs and costs, supra , para. 26, and Case Norín Catrimán and other (Leaders, members and activist Mapuche Indigenous People) v Chile, supra , para. 413. 284 Cf. Case of Ticona Estrada vs. Bolivia, supra , para. 110, and Case of Human Rights Defender et al v Guatemala, supra , para. 245. 285 These measures aim, inter alia , the recognition of the dignity of victims or transmit a message official condemnation of violations of human rights in question and prevent violations from recurring such as the present case. Cf. Case De la Cruz Flores v Peru. Merits, Reparations and Costs . Case 18 November 2004. Series C No. 115, para. 164. 286 "The guarantees of non - repetition [...] will contribute to prevention." Principle 23 of the Basic Principles and Guidelines on the right of victims of gross violations of international human rights standards and serious violations of international humanitarian law to a remedy and reparation. UN Doc. A / Res / 60/147. Resolution adopted by the United Nations General Assembly on December 16, 2005, Principle 2. 3.
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178. Both the representatives and the Commission valued the acknowledgment of responsibility https://translate.googleusercontent.com/translate_f 55/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… made by the State in this case, as in previous cases, and expressed good will, but they warned of the lack of correlation of this position with compliance measures structural and, in particular, access to justice through the effective investigation of the cases. The state, meanwhile, expressed its willingness to take a number of measures requested and indicated that it "does not dispute the need to give their statements and concreteness recognition and maintaining a consistent procedural action with this position, "but the light of experience gained in the two previous cases, looked at the need to clarify the terms and scope of its acceptance of the measures requested.
179. The Court recalls that the State must prevent the recurrence of violations of the rights human as those that occurred and therefore adopt all the laws, administrative measures and other measures necessary to prevent similar events from occurring in the future, performance of their duties to prevent and guarantee the fundamental rights recognized
by the American Convention 287 . Therefore, in this case, it is necessary to evaluate the Additional criteria form the sitting, relevance and opportunity to reiterate certain repairs considering those that were previously ordered in the above cases or, where appropriate, to order or not those here reapply and they had not been willing previously.
180. In view of the violations of the American Convention declared in Chapters earlier this judgment and taking into account the considerations in paragraphs precedents, the Court will proceed to examine the claims submitted by the Commission and representatives and the State's arguments, in light of the criteria set out in the
Court 's jurisprudence regarding the nature and extent of the obligation to repair 288 , with In order to have measures to repair the damage caused to the victims.
TO. INJURED PARTY
181. It is considered injured party under the terms of Article 63.1 of the Convention, who has He declared a victim of the violation of any right embodied therein. Therefore, this Court considers as "injured party" Rochac Jose Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, as well as 35 family victims identified in the report on the merits of the Commission and recognized by the State, listed in paragraph 34 above of this judgment, who in his capacity victims of the violations declared in this judgment, be considered beneficiaries and beneficiaries of the reparations that the Court order below.
B. Obligation to investigate the facts that generated the violations and to identify, prosecute and, where appropriate, punish those responsible and determine the whereabouts of the victims
182. The Commission noted that "the situation of impunity in this case, is no more than the reflection of a structural impunity for serious violations of rights human that took place during the armed conflict in general and deal with cases of forced disappearance of children in particular. " Therefore, it considered that the measures related to the investigation and punishment of those responsible "should be based on deficiencies
287 Cf. Case of Zambrano Vélez et al v Ecuador. Merits, Reparations and Costs. Judgment of July 4, 2007. Series C No. 166, para. 153 , and Case Veliz Franco et al v Guatemala, supra , para. 260. 288 Cf. Case of Velásquez Rodríguez v Honduras. Reparations and costs , supra , paras. 25 to 27, and Case of López Mendoza Vs. Venezuela. Merits, Reparations and Costs. Judgment of September 1, 2011. Series C No. 233, para. 208.
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structural and described, including the use of Law AI and the absence of a investigative and judicial institutions capable of responding to the reality of lived experience in the conflict Salvadoran armed ".
Considerations of the Court https://translate.googleusercontent.com/translate_f 56/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… 183. For the Court it is clear that the victims of prolonged impunity, as verified in the previous two cases and in this related research Forced of children during armed conflict, disappearances suffer various affectations by seeking justice not only of a material nature, but also suffering and damage psychological, physical and life project in its character as well as other possible changes in their
social relationships and the dynamics of their families and communities 289 .
184. The Court reiterates that both conducting research and finding people Missing is a state imperative duty, and reaffirms the importance of such actions are carried out in accordance with international standards, under an approach that that the victims were children at the time of the facts. To do this, it is essential that the State should adopt clear and specific strategies aimed at ending impunity in the prosecution of enforced disappearances of girls and children during armed conflict El Salvador, with the aim of highlighting the systematic nature which acquired this crime which particularly affected the Salvadoran children form and thereby prevent recurrence facts this nature.
185. Thus, in this section the Court will consider all measures of reparation requested which they are correlated with the investigation to determine the whereabouts of the victims and perpetrators of enforced disappearances and other related illegal to disappearances that might be configured.
1. Research, identification, prosecution and, if applicable, punishment of all materially and intellectually responsible
186. Both the Commission and the representatives requested the Court to order the State conduct a full, impartial, thorough and effective investigation to identify, identify, prosecute and if necessary punish those responsible for the disappearance and offenses Related committed against children and child victims in this case. Additionally, the Commission requested that the State be ordered to carry out the necessary investigations to determine responsibility and punish those who participated in the cover-up the facts and denial of justice, and the representatives requested an investigation to those officials and / or employees in charge of investigations. representatives Also they reiterated its request that the State was ordered to establish a Special Commission investigation of missing children within the Attorney General of the Republic or that will train the Human Rights Unit specializing in researching the issue of missing children during the armed conflict in order to have specialized prosecutors and adequately resourced, since "there is an obvious stagnation in the investigation of those responsible." the State It merely stated that while he recognized that the obligation to investigate would be targeted, promoted by the National Commission to Search for Missing Children during the Internal armed conflict, this did not preclude actions directed by the Salvadoran judicial system with the same purpose and in order to investigate the determination of responsibility of the actors and masterminds of the forced disappearance of children and the child in this case.
289 Cfr. Slaughter of Pueblo Bello v Colombia. Merits, Reparations and Costs. Judgment of January 31, 2006 . Series C No. 140, para. 256, and Case Massacres The Mozote and surrounding areas vs. El Salvador, supra , para. 305.
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Considerations of the Court
187. Chapter VII-2 of this judgment, the Court declared the violation of rights fair trial and judicial protection because the internal processes in their comprehensiveness have not constituted effective remedies to determine the fate or the whereabouts of the victims, nor to guarantee the rights of access to justice and to know the truth, through investigation and punishment of those responsible and comprehensive repairing consequences of violations. It is so, more than 30 years into the implementation of and 12 made the first investigations began, the prevailing impunity and lack of effectiveness of criminal investigations and proceedings, which is reflected in that none of the responsible has been identified or linked to investigations. https://translate.googleusercontent.com/translate_f 57/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
188. Given requested by the Commission and representatives and their
case 290 , the Court orders that the State must continue effectively and with greater diligence investigations open, and open those necessary in order to identify, prosecute and, if applicable, punish those responsible for enforced disappearances Rochac Jose Adrian Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, as well as other related to the disappearance illegal. This obligation must be fulfilled within a reasonable time in order to establish the truth of the facts and determine the criminal liability that may exist, considering the criteria mentioned
on investigations into cases of enforced disappearances 291 , and removing all obstacles to
facto and de jure that maintain impunity in this case 292 . In particular, the State must:
to) taking into account the systematic pattern of forced disappearances of children in the context of the Salvadoran armed conflict and military operations large proportions within which the events of this case is framed, in order that processes and relevant investigations are conducted in consideration of the complexity of these facts and the context in which they occurred, avoiding omissions in the evidence collection and monitoring of logical lines based research a correct assessment of the systematic patterns that gave rise to the facts research;
b) identify and identify the material and intellectual authors of the forced victims and other related illegal disappearances. Due diligence in research implies that all state authorities are obliged to cooperate in the collection of evidence, so they must provide the judge, prosecutor or other judicial authority all the information required and refrain from acts involving obstruction for investigative process;
c) ensure that the competent authorities conduct investigations corresponding ex officio , and for that purpose at their disposal and use all logistics and scientists needed to collect and process evidence resources and, particular have the powers to access documents and information relevant to investigate the allegations and promptly carry out those actions and essential inquiries to clarify the fate of missing people this case;
290 Cf. Case Anzualdo Castro v Peru, supra , para. 181, and Case Osorio Rivera and Family Vs. Peru, supra , para. 244. 291 Cf. Case Anzualdo Castro v Peru, supra , paras. 62 to 67 and 122 to 124, and Case Contreras et al vs. El Salvador, supra , paras. 126-130. 292 Cf. Case Vs. Guatemala Myrna Mack Chang . Merits, Reparations and Costs . Judgment of November 25, 2003. C Series No. 101, para. 277, and Case of Contreras et al v El Salvador, supra , para. 185.
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(d) because they are serious human rights violations 293 , and in consideration of continuous or permanent nature of enforced disappearances whose effects do not stop while not establish the fate or whereabouts of the victims and their identity is determined, the State must refrain from using figures such as amnesty for the benefit authors, as well as any other similar provision, prescription, non-retroactivity criminal law, res judicata, ne bis in idem or any similar exemption from responsibility to excuse himself from this obligation, and
and) ensure that investigations by the facts constituting disappearances forced in this case be maintained at all times, under knowledge of the ordinary jurisdiction.
189. Moreover, in the circumstances of this case and based on the provisions of the Case Contreras and others , the Court orders that the State must adopt other measures, such as: https://translate.googleusercontent.com/translate_f 58/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… to) joint coordination mechanisms between the various bodies and institutions state with powers of investigation and monitoring of the causes that processed by the facts of forced disappearance of children during the conflict armed, for which it must organize and maintain a database on matter, in order to achieve more coherent and effective investigations;
b) develop protocols for action in the matter under an interdisciplinary approach and train officials involved in the investigation of serious violations human rights so that these officials make use of the legal elements, technical and scientific data available;
c) promoting relevant international cooperation activities with other States in order to facilitate the collection and exchange of information as well as other legal actions correspond;
(d) ensure that the various organs of the justice system involved in the case have the human, financial, logistic, scientific or any resources resources necessary to perform their duties properly, independently and impartial and take the necessary measures to ensure that judicial officials, prosecutors, investigators and other justice operators have a system of safety and proper protection, taking into account the circumstances of their cases charge and where are toiling, enabling them to perform their duties with due diligence, as well as the protection of witnesses, victims and their families, and
and) ensure that public officials and individuals not to hinder or divert unduly delay investigations to clarify the truth of the facts, through relevant and effective mechanisms.
190. With regard to the request of the representatives of the Attorney General's Republic create a Special Commission or training Unit on Human Rights issue of enforced disappearances of children, the Court considers that it is not appropriate to order an additional measure, since the measures listed in paragraph Previous provide an appropriate framework within which the Attorney General's Office can
293 Cf. Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs, supra , paras. 171 and 172; If Contreras et al v El Salvador, supra , para. 185, and Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 318 and paragraph four.
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articulating mechanisms that best meet their organizational structure in order to achieve adequate internal coordination in monitoring the causes that are processed by the facts forced disappearance of children during armed conflict, in order to achieve the most coherent and effective investigations.
191. Finally, the State must ensure full access and capacity to act for victims or
their families at all stages of investigation and prosecution of those responsible 294 . In addition, the results of the corresponding processes must be published so that
Salvadoran society to know the facts of the present case and those responsible 295 .
2. Determine the whereabouts of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala
192. The Commission requested the Court to order the State to carry out a full investigation, impartial and effective investigation of the fate or whereabouts of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala and, if be found, make the necessary efforts to ensure family reunification. In case of established that any of them is not alive, take the necessary measures to deliver their remains to their families. In its final arguments, the Commission requested that, in addition to establishing the State's obligation to seek the fate or whereabouts of the victims, the Court made reference in particular the sentence: (i) the current legislative process and the need to provide security https://translate.googleusercontent.com/translate_f 59/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
suflegalficient and permanencebudget and personnel to the National specialized Search and Commission; interdisciplinary; (Ii) the (Iii) need the to need allocate to establish and apply in practice enforcement mechanisms against alleged lack of cooperation from other State entities; and (iv) the need to create effective channels of coordination with the Ministry Public and judicial authorities.
193. The representatives requested the Court to order the State to carry out a search fair, expeditious, serious and thorough, which will make every effort to determine their whereabouts shortly. They argued that if they determined that the victims are alive, the State must bear the costs of reunion and adequate provision of psychosocial care and, if they are their remains, the State must return to their families as soon as possible and cover any funeral expenses. The representatives also warned that in such cases should the National Search Commission to intervene. In this regard, they noted several obstacles in carrying out their duties to investigate and establish the whereabouts and status of children missing, namely: (i) has not developed a strategy own lines of research; (Ii) the absence of protocols in the flow of information to families; (Iii) has not made use of the ex officio powers to inspect records documentaries and state archives; (Iv) on May 31 2014 was going to end his mandate; and (v) does not have its own budget nor logistic support. Therefore they considered that the State must create such Commission through a legislative decree.
194. For its part, the Commission asked the State "[a] dopt the necessary measures to ensure effectiveness and permanency for the time necessary, from the [C] omission of [B] earch, the search website and genetic information system, which is being implemented in the framework of ordered by the Inter-American Court of Human Rights in the case of Serrano Cruz sisters. In particular, ensure that these measures are arranged by the
294 Cf. The Caracazo vs. Venezuela. Reparations and Costs . Judgment of August 29, 2002. Series C No. 95, para. 118, and Case Osorio Rivera and Family V. Peru, supra , para. 245. 295 Cf. The Caracazo vs. Venezuela. Reparations and costs , supra , para. 118, and Case Osorio Rivera and Family Vs. Peru, supra , para. 245.
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legal mechanisms for legal certainty in its operation and manning necessary budget. "
195. The State acknowledged its obligation to investigate the fate or whereabouts of José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, whose execution will be promoted through the National Search Commission. In Consequently, the State undertook to ensure the permanence of that Commission. In their final arguments, the State reported extensively on the history, creation and work has conducted the National Search Commission and indicated that the decree creating the Commission National Search was the subject of another reform on February 19, 2014, in order to modify the term of the Commission, with an indefinite term as well as other elements of your functioning. Similarly, he argued that it would not object to the request of the representatives, since the term of the current Commission does not exclude the possibility that the Legislative Assembly consolidate the process of this Commission, ordering its creation by decree legislative.
Considerations of the Court
196. In the present case has been established that Rochac Jose Adrian Hernandez Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala still missing, without the State has provided information on the effective location of the fate or whereabouts and positive identification of any of them to date ( Supra para. 93). The Court emphasizes that the victims disappeared about 30 years ago, so it is a fair expectation of their families identify their whereabouts, which It constitutes a measure of reparation and, therefore, generates the corresponding obligation of the State of
satisfy 296 . In turn, this allows relatives alleviate the distress and suffering caused by https://translate.googleusercontent.com/translate_f 60/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
this uncertainty 297 . 197. Consequently, it is necessary that the State made, at the earliest, search serious, which make every effort to determine the whereabouts of José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, which should be done in a systematic and rigorous manner, have the resources human, technical and adequate and appropriate scientific and, if necessary, should be requested the cooperation of other States and international organizations. The said measures must be informed their families and possibly seek his presence.
198. The determination of the whereabouts must be made through the action of the Commission Search National Missing Children during the internal armed conflict or entity or body that is most suitable and efficient. In any case, it imperative that the entity or body to conduct such a search count on guarantees independence and impartiality; has the human, financial, logistic, scientific and resource other necessary in order to achieve the most efficient investigations to determine the whereabouts of young people who disappeared when they were children during the armed conflict; holds capacity for initiative to adopt all necessary measures to investigate and gather evidence on the possible whereabouts of children who disappeared during the armed conflict; Y ensure that all institutions and state authorities are obliged to provide their
cooperation in providing information and access to all files and records 298 .
296 Cf. Case Vs. Neira Peru. Repairs and Costs. Judgment of 19 September 1996, Series C No. 29, para. 69, and Case Osorio Rivera and Family Vs. Peru, supra , para. 249. 297 Cf. Case of Ticona Estrada et al v Bolivia , supra , para. 155, and Case Osorio Rivera and Family V. Peru, supra , para. 249. 298 Cf. Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs, supra, paras. 184-188.
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199. If after the measures taken by the State, the victims or any of they will be found alive, the State must bear the costs of identification methods under authentic, reunion and psychosocial care necessary to impose the measures restoring their identity and make the necessary efforts to facilitate reunification family, if they so wish. If they were found lifeless remains previously identified should be returned to their families as soon as possible and at no cost. In addition, the State must cover the funeral expenses, if any, in agreement with their
family 299 .
200. As regards the National Search Commission in Case Contreras and others the Court did not consider it appropriate to order new measures of reparation requested related
with paragraph seven of the judgment of the case of the Sisters Serrano Cruz 300 , as These were set out in the said judgment and compliance with the order is continues to evaluate the stage of monitoring compliance with it. In this same line and for the same reasons, the Court considers it relevant to refer in this sentence possible obstacles faced by this Commission and, therefore, requested by the Commission Inter and representatives. Notwithstanding the foregoing, the Court is pleased that the work of this Commission has been extended indefinitely, it should not be understood as an assessment as to the mechanism by which this change occurred.
3. Request for strengthening scientific and forensic capabilities for search for missing girls and boys
201. The representatives requested the Court that in view of noncompliance in the case of Serrano Cruz sisters , reiterate the State of its duty to create a genetic information system and that the physical component and portraits spoken about how children would be incorporated and who disappeared today if they were alive, as this would constitute a condition needed to strengthen the technical and scientific capacities in the field of research these cases and also favor the identification of missing persons exist in the present. https://translate.googleusercontent.com/translate_f 61/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
202. The State said it is committed to making progress on this point and, To do so, he said efforts to develop capacities in forensic, anthropological and genetic research within the framework of compliance with the judgment in the Case of the Massacres of El Mozote and surrounding areas .
Considerations of the Court
203. In paragraph seven of the Judgment of the Case of the Serrano Cruz Sisters issued in March 2005, the Court ordered the State to take "all necessary measures to create a genetic information system for identifying and conserving genetic data contribute to identifying and clarifying the parentage of missing children and their
family and their identification " 301 . The Court notes that, through its monitoring procedure compliance, more than nine years enacted the measure, it still is
299 Cf. Case Anzualdo Castro v Peru, supra , para. 185, and Case Osorio Rivera and Family Vs. Peru, supra , para. 252. 300 The Court ordered that the State "[should] take the following measures in order to determine the whereabouts of Ernestina and Erlinda Serrano Cruz: operation of a national commission to young people who disappeared when they were children during the armed conflict and civil society participation; creating a page web of search; and creation of a genetic information system ". Case of the Serrano Cruz Sisters vs. El Salvador. Background, Repairs and costs, supra, paragraph seven. 301 Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs, supra , paragraph seven.
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pending compliance, as "still has not been created nor concrete action has been taken
for implementation " 302 . In the present case, the State did not provide information indicating some progress over the previous determination.
204. The Court does not consider it appropriate to order new measures of reparation requested, and that they were established in the judgment mentioned in the previous paragraph and compliance of ordered continues evaluating the stage of monitoring compliance therewith. Do not however, reiterates the importance of compliance with this measure is to achieve identification of missing persons and to determine the parentage of them. Even more, when relatives of people who at that time were children have advanced ages making compelling that are collected and preserved genetic samples to enable future identifications can become effective for girls and boys missing.
205. Now in regard to the request that physical portraits are included and spoken age progression within that system, the Court understood that the requirement that State to take "all necessary measures" to the creation of an Information System Genetic entail an obligation to incorporate the best practices for achieving the objective of same, so not appropriate to order further or additional measure.
Four. Ensuring access to military records containing information useful for determining the whereabouts of the missing girls and boys
206. The representatives , referring to the measure of reparation ordered in operative paragraph tenth Case Contreras and others , indicated that, in this case, public institutions as the armed forces should make available all documents that provide information for Search for girls and boys and that the State should be required to have efforts institutional and administrative to overcome the obstacles encountered in obtaining useful for the investigation. They also considered that "it is important that the State ensure that the military elements involved in military operations, undertake to provide information, given that many of them have relevant information that has not been provided ". Therefore, the representatives stated that "[a] nte impunity have faced these, as other cases of child victims of enforced disappearance "is They are requesting the Court to order the State to make available all public access document containing key information for locating victims of this case and all children who are still missing. https://translate.googleusercontent.com/translate_f 62/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
207. The State acknowledged that "access to information about these files is a right victims and their representatives ". The State recalled that the Salvadoran law It establishes provisions requiring public authorities, without exception, to provide information on cases such as those heard in this international process, being constitutional or legal power to some institutions request such information to the fulfilling its mandate, especially in the case of applications from judicial authorities, Mr Attorney General of the Republic and of the Attorney for Defense of Human Rights. In addition, the State reported that on April 8, 2011 It entered into force the Law on Access to Public Information, which establishes an internal mechanism access to information, including that related to government activities allegedly linked to the disappearance of children during armed conflict internal, and The Institute was created Access to Public Information as the entity responsible for ensuring the application of that law.
302 Case of the Serrano Cruz Sisters vs. El Salvador. Monitoring Compliance with Judgment. Resolution Inter-American Court of Human Rights of February 3, 2010, paragraphs 30 and 31.
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Considerations of the Court
208. In the case Contreras and others , the Court ordered the State to "take appropriate measures and appropriate measures to ensure justice operators and the Salvadoran society, relevant public, technical and systematized access to files containing useful information and for research into causes followed by human rights violations during the conflict
armed " 303 .
209. In this case, as in the previous 304 , the court has found that one of the limitations to advance research is the lack of access to information in files about counterinsurgency operations, as well as individuals, units and military establishments involved in operations which disappeared victims in this case, including their hierarchies, roles and responsibilities. Since such information is vital to progress in judicial investigations and Ministry Public and enable the identification and individualization of those responsible, the Court considers pertinent to reiterate that the State must adopt, as soon as possible, measures relevant and appropriate to ensure justice operators and society El Salvador, the systematic public access files, and contain technical information useful and relevant for research into causes followed by violations of human rights during the armed conflict, measures should support budget allocations appropriate. This implies that the National Search Commission and the Public Ministry, and where appropriate judicial authorities to use their powers to enter the respective facilities and, where appropriate, to inspect the relevant files.
5. Application adequacy of internal regulations
210. The representatives considered that the General Amnesty Law for Consolidation Peace was an obstacle to access to justice, so they asked the Court to urge the State that will adapt domestic legislation to the standards of international law of human rights and order the State to carry out research on the implications of all those military, paramilitary or individuals who may have participated in the disappearance of girls and children in this case.
211. The State did not submit specific arguments on these requests, although provided Information on the General Amnesty Law for the Consolidation of Peace ( supra para. 135).
Considerations of the Court
212. The Court has previously determined that because it is serious rights violations human, and in consideration of continued or permanent nature of enforced disappearance https://translate.googleusercontent.com/translate_f 63/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… identitywhose ef isfects determined, do not stop the while State themust fate refrain or whereabouts from using offigures the victims such as has amnesty not been determined and benefit of authors, as well as any other similar provision to excuse this obligation ( supra para. 188.d).
213. In addition, it arranged in the Case of the Massacres of El Mozote and surrounding areas that State must ensure that the General Amnesty Law for the Consolidation of Peace never again
303 If Contreras et al v El Salvador, supra , paragraph ten. 304 Cf. Case of the Serrano Cruz Sisters vs. El Salvador. Merits, Reparations and Costs, supra , paras. 93 to 96, and If Contreras et al v El Salvador, supra , paras. 168 and 169.
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represent an obstacle to the investigation of the material facts of this case nor for identification, prosecution and punishment of those responsible for them and other serious human rights violations similar occurred during the armed conflict in El
Salvador 305 . This obligation is binding on all powers and organs as a whole, the which they are obliged to exercise control of "conventionality" ex officio between internal rules and the American Convention clearly within the framework of their respective
competences and the corresponding procedural regulations 306 . Accordingly, the Court considers it appropriate to order again the reparation measure concerning the adequacy regulations requested referring to the General Amnesty Law for the Consolidation of Peace, as the was it established itself in the sentence above indicated and compliance with the order continues assessing the stage of monitoring compliance of the same, without prejudice to repeat its inapplicability to the investigation of cases like the present case.
C. Restitution, rehabilitation, satisfaction and guarantees of non-repetition
1. Restitution
to) Cover costs and make the procedures and links necessary for recovery of the identity of the girl and the missing children in this case
214. The representatives requested that the State take over the costs and process the due process for recovering identity of the child and children in this case They were found alive and who required at a given time, including warranty return to El Salvador if the correction request and documents apply. The State argued that promote the actions necessary to restore the identity of the victims being located in this case, if so required by the same, since the actions to be undertaken would be subject to decisions of young people located.
Considerations of the Court
215. The Court considers that this measure is incorporated into ordered in paragraph 199 above , in that the State must bear the costs of their identification under reliable methods of reunion and psychosocial care necessary measures have for the restoration of their identity and make the necessary efforts to facilitate family reunification, if they so wish. Given the possible destinations girls and missing children ( supra para. 50.e), the Court clarifies that the measure entails, where appropriate according to the particular circumstances of the victim localized and if it You want to ensure the conditions for the permanent return to El Salvador with psychosocial support suits your needs.
2. Rehabilitation
to) comprehensive, psychological and / or psychiatric medical assistance to victims
216. The representatives requested that the State provide "medical and psychosocial care https://translate.googleusercontent.com/translate_f 64/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Rochac,special and Santos free Ernestoto families Salinas, of children Manuel and Antonio l [a] Kids Bonilla [a] of Osorio, this case Ricardo and José [Abarca Adrián Ayala], and Emelinda
305 Cf. Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 318 and paragraph four. 306 Cf. Case Almonacid Arellano et al v Chile. Preliminary Objections, Merits, Reparations and Costs. Judgment 26 September 2006. C Series No. 154, para. 124, and Case Massacres of El Mozote and surrounding areas v El Salvador, supra , para. 318.
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Lorena Hernández if they were alive, "so they could access center Health recognized at the national level that would be chosen by mutual agreement with the beneficiaries and that psychological care was provided by specialists in caring for victims of serious violations of human rights. They also pointed out "the need for the State d [ed] priority in health care to the families of this case and Garanti [Zaran] drugs suitable for each of the conditions "and that" while [ra] guarantees a suitable system, it proved [Yera] insurance in the private system, the larger amount to care family and cover the deductible, evit [a] Ndole any expense to the victims. " In addition, they requested that If any of the children or child in this case is found abroad and outside its decision not return to the country a sum of money is granted.
217. On the request of the representatives in their final written arguments the Commission He said that medical and psychological support, should be specialized from a Individual assessment of the situation of each person and each family circle. He also noted that the State had an immediate obligation to provide such medical care and psychological specialized and, in any case, once set in motion, with guarantees of permanence and with the necessary resources for its effective functioning, psychosocial care program that was designed in order to provide a comprehensive response to victims of serious human rights violations that occurred during the armed conflict, the State could channeling attention through this mechanism.
218. The State assumed responsibility for ensuring the provision of medical care and psychological in favor of the victims in this case through public hospitals network country and community level. He agreed with the representatives noted that some of the victims in this case they had already registered care in the public health system, but would served according to their specific needs. He noted that, to this end had been doing the following: (i) in the field of psychosocial care, the Ministry of Health has trained key personnel at the local level for assistance to victims of human rights violations during armed conflict; (Ii) it has sought to build capacity for victims of violations human rights receive care differentiated character with the rest of the population, through awareness and training sessions aimed at medical staff and Staff linked to patient care in different areas; and (iii) has initiated delivery an identification card in which the beneficiary or beneficiary quality specified under of judgments of the Court, to ensure a smooth and timely care.
Considerations of the Court
219. The Court appreciates the actions taken by the State to give attention medical to some of the victims in this case and recognizes the general measures taken by the State to ensure medical and psychosocial care for victims of serious
human rights violations in El Salvador. As it has done in other cases 307 , the Court considers it necessary to order a measure of reparation that provides appropriate care to psychological and physical sufferings endured by the victims arising from violations set out in this Judgment. Therefore, having found violations and damage suffered by the victims, the Court considers it necessary to order rehabilitation measures in the this case.
220. In order to contribute to the repair of these damages, the Court rules that the State has the obligation to provide free of charge, through its specialized health institutions, and prompt, adequate and effective, medical, psychological and / or psychiatric treatment to
https://translate.googleusercontent.com/translate_f 65/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… paras.307 42Cf. and Case 45, of and Barrios Case Altos Contr veras Peru. et Reparationsal vs. El Salvador and Costs, supra . Judgment, para. 198. of 30 November 2001. Series C No. 87,
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victims who so request, including free supply of medicines eventually they are required, taking into account the conditions of each of them. In If the State does not have them must resort to private institutions or society specialized civil. Also, the respective treatments should be given, as far as
possible, closest to their homes centers 308 in El Salvador for the time be necessary. By providing psychological or psychiatric treatment should also consider particular circumstances and needs of each victim, so that they are offered collective, family and individual treatments, according to what is agreed with each of them and
after an individual assessment 309 . Victims or their legal representatives, have a Within six months, counted from the notification of this judgment, to publicize
the State of its intention to receive psychological and / or psychiatric 310 .
221. In addition, the Court observes that, as indicated by some of the representatives relatives of victims do not reside in El Salvador. In the event that these people request health care in the preceding paragraph, the State shall grant, for a single Once the sum of US $ 7,500.00 (seven thousand five hundred dollars of the United States of America) for expenses for medical, psychological and / or psychiatric treatment, as well as medicines and other related costs, so they can receive such care in the place where
reside 311 .
222. As regards the child and children who are still missing, those of meet life also may be beneficiaries of this measure of reparation and the State you must provide the aforementioned medical, psychological and / or psychiatric treatment, the Court has that within six months ( supra para. 220) should be counted from being informed about This measure, once established his whereabouts and identity is determined.
223. Regarding the request of the representatives to assess the allocation of a sum of money if they met abroad and its decision does not return to the country, taking into account the possible destinations of girls and missing children ( supra para. 50.e), the Court considers that, if the whereabouts of José Adrián Hernández Rochac established, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, is determined one of them living abroad and their decision is not returning to the country, it must order El Salvador to provide an amount to cover the costs of medical treatment,
psychological and / or psychiatric and related expenses, the residing place 312 . In Consequently, the Court orders that the State must grant only once, within six months from the beneficiary or the beneficiary communicates its intention not return to El Salvador, the sum of US $ 7,500.00 (seven thousand five hundred United States of America) for medical, psychological and / or psychiatric treatment, as well as medicines and other related expenses.
3. Satisfaction
308 Cf. Case of the Dos Erres Slaughter vs. Guatemala, supra , para. 270, and Case Osorio Rivera and Family Vs. Peru, supra , para. 256. 309 Cf. Case of the 19 Tradesmen v Colombia. Merits, Reparations and Costs. Judgment of July 5, 2004. Series C No. 109, para. 278, and Case Osorio Rivera and Family Vs. Peru, supra , para. 256. 310 Cf. Case Fernández Ortega et al v Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment 30 August 2014. Series C No. 215, para. 252, and Case Osorio Rivera and Family Vs. Peru, supra , para. 256. 311 Cf. Case of the Dos Erres Slaughter vs. Guatemala, supra , para. 270, and Case Gudiel Álvarez et al ( "Military Journal") Vs. Guatemala, supra , para. 340. 312 Cf. Case Loayza Tamayo vs. Peru. Reparations and Costs . Judgment of 27 November 1998. Series C No. 42, paras. 106th) and m), and 129.d), and Case of Contreras et al v El Salvador, supra , para. 201.
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to) public act of acknowledgment of international responsibility
224. The representatives requested the Court to order the State to conduct survey public international responsibility. Specifically, they requested takes place in the "Monument of disappeared children" located in the Municipal Park Tecoluca, San Vicente department and perform March 29, National Day of Disappeared Children of El Salvador for being a symbolic date in memory of the girls and boys, and that it is published in a full page of every national newspaper. The State indicated its make this measurement available through a public act and he said it would seek to reach an agreement with the victims and their representatives on the method of compliance, including the place and date of completion in a symbolic significance.
Considerations of the Court
225. As it has in other cases 313 , the Court orders the State to conduct a public act recognition of international responsibility in relation to the facts of this case, referring to the violations established in this judgment. This act must be held a public ceremony attended by senior government officials and victims in this case. The State shall agree with the victims or their representatives compliance mode public act of recognition as well as the particularities
They require, such as the place and date for implementation 314 . In addition, the State must cover
travel costs of victims and disseminate this act through the media 315 . To do this, the State has a period of one year, from the notification of this judgment.
b) Publication of the judgment
226. The representatives requested the Court to order the State to publish a single instead of the whole sentence, in the Official Journal and other major newspapers circulation in the country and in the page web of all public bodies related to these cases as well as the Salvadoran Armed Forces. In closing arguments added that "A lot of a popular version of it" was also published. The State recognized the importance of providing judgments handed down by the Court in its advertising Domestically, "Because this contributes to the repair of the victims", so he agreed to make the publication of official summary of the judgment only once in the Official Gazette and in a newspaper of national movement, besides keeping the judgment in its entirety available on a site web officer for a period of one year.
Considerations of the Court
227. The Court has, as it has done in other cases 316 , that the State publish, within six months, counted from the notification of this judgment:
313 Cf. Case of Cantoral Benavides v Peru. Reparations and Costs . Judgment of December 3, 2001. Series C No. 88, para. 81, and Case Brothers Landaeta Mejías et al v Venezuela. Preliminary Objections, Merits, Reparations and Costs. Judgment of August 27, 2014. Series C No. 281, para. 307. 314 Cf. Case of Kawas Fernández vs. Honduras. Merits, Reparations and Costs . Judgment of April 3, 2009 Series C No. 196, para. 202, and Case Landaeta Mejías Brothers et al V. Venezuela, supra , para. 307. 315 Cf. Case Vs. Guatemala Myrna Mack Chang , supra , para. 278, and Case of Contreras et al v El Salvador, supra , para. 203. 316 Cf. Case of Cantoral Benavides v Peru. Repairs and costs, supra , para. 79, and Case Defender of Rights Human et al v Guatemala, supra , para. 261.
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to) the official summary of this judgment prepared by the Court, for once, in the Official Journal; b) the official summary of this judgment prepared by the Court, for once, one (1) newspaper of national circulation, and c) this judgment in its entirety, available for a period of one year, in a (1) site web official national character as well as on the site web Force officer Navy El Salvador, so accessible to the public.
228. Regarding the request of the representatives in their final arguments ( supra para. 226), the Court notes that was not presented at the appropriate procedural moment, that is, introducing the
pleadings and arguments, so it is untimely and will not be considered 317 .
c) Request for appointment of schools with the names of victims
229. The representatives requested the Court to preserve historical memory, promote the reputation of the victims and educate the historical memory from the community education in general should be appointed a school in every area where they disappeared children and the girl with their names and a review of the events that caused the disappearance. Nevertheless, in its final arguments the representatives withdrew continue to push this measure repair in this case.
230. On the other hand , and based on the reasons set out timely, the State requested that the nomination schools not ordered in this case. However, he said that if there is a decision ordering the measure, the state has a regulatory instrument that makes possible such a measure.
Considerations of the Court
231. The Court notes the statement by the representatives and the State, and attention the express waiver of representatives, believes it is not appropriate to order such a measure repair in this case. As regards the measure taken in the case Contreras and other compliance thereof will be monitored timely in that procedure.
(d) Construction of a "garden museum" aimed to honor the memory of girls and forcedly missing children
232. The representatives noted that the construction of a museum garden serve as space dedicated to commemorate the memory where children forcibly disappeared during the armed conflict and to sensitize the population that visit, both domestic and foreigners, for which they considered necessary that the State develop an educational letter endowed with multimedia tools, testimonies and encounters so that explains the meaning it. Representatives proposed the Cuscatlan Park for the construction of Garden museum. They also requested that relatives of this case are invited to the opening in which a plaque containing the brief account of the disappearances it would be unveiled.
233. The State said it was at the disposal of promoting the construction of a garden museum, as a measure of this nature would have a remedial character not only for victims and their families in this case, but for other families who have also suffered from
317 Cf. Case Radilla Pacheco v United Mexican States, supra , para. 359, and Case of Contreras et al v El Salvador, supra , para. 221.
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the forced disappearance of children in El Salvador. However, he said that, ordered the https://translate.googleusercontent.com/translate_f 68/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… internal,measure inwould order require to specify prior details planning of the proceed project with and the define competent its best authorities location and in thecharacteristics field with victims and their representatives.
Considerations of the Court
234. The right to know the truth entails have full and complete knowledge of the acts that occurred, the people involved in them and the specific circumstances, particularly the violations and motivation. In cases of forced disappearance people, the right to truth also has a special facet: knowledge of luck and
the whereabouts of the victims 318 . The Court considers that, apart from the work performed by various entities for understanding the fate and whereabouts of the victims and prosecution of responsible, the State, as a measure of reparation that seeks to satisfy the right of society as a whole to know the truth, use appropriate mechanisms to keep the memory of the victims alive and bring transparency to the facts that violated the human rights through the establishment of public memory spaces, whether these Memorials, monuments, museums, among others.
235. The Court has ordered in many cases building monuments, usually accompanied by fixing a plate detailing the facts of the case and contains the names of
victims 319 , or the establishment of plaques in existing monuments
significant public spaces 320 , in order to remember the facts that the human rights violations, keep alive the memory of the victims and to raise public awareness to prevent and avoid such serious events occurring in the future.
In other cases, the Court has had to deal with applications for the construction of a museum 321
and a park in memory 322 .
236. The Court appreciates the State's willingness to comply with repair requested by the representatives in this case. Given the scale acquired practice systematic forced disappearances of children during the armed conflict in El Salvador disappearances, pattern in which the facts of the case are set, the Court considered important, as part of the construction and preservation of the collective memory regarding disappearances forced disappearances of children, order the construction of a "garden museum" where girls remind and children forcibly disappeared during the armed conflict. For the construction of this "Garden Museum," the State has a period not exceeding five years, counted from the
318 Cfr. ECOSOC, Report of the Office of the United Nations High Commissioner for Human Rights , "Study on the right to truth", UN Doc. E / CN.4 / 2006/91, 9 January 2006. 319 Cf. Case of Barrios Altos v Peru. Reparations and costs , supra , para. 44.f); Case of 19 Tradesmen v Colombia , supra , para. 273; Huilca Tecse vs. Peru case. Merits, Reparations and Costs . Judgment of March 3, 2005. Series C No. 121, para. 115; Case of the Moiwana Community vs. Suriname. Preliminary Objections, Merits, Reparations and Costs . Judgment of 15 June 2005. Series C No. 124, para. 218; If the "Slaughter of Mapiripán" vs. Colombia. Background, Reparations and Costs . Judgment of September 15, 2005. Series C No. 134, para. 315; Case Slaughter Village Bello V. Colombia, supra , para. 278; Goiburú et al v Paraguay, supra , para. 177; Gonzalez and other case ( "Campo Algodonero ") v Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 16, 2009. C Series No. 205, para. 471; and Case Slaughter Dos Erres V. Guatemala, supra , para. 265. 320 Cf. Case Vs. Guatemala Myrna Mack Chang , supra , para. 286; Case of the Ituango Massacres V. Colombia, supra , para. 408; Case of the Miguel Castro Castro vs. Peru. Merits, Reparations and Costs . Judgment of 25 November C 2006 , Series No. 160, para. 454; Case of La Cantuta v Peru. Merits, Reparations and Costs. Judgment of 29 November 2006. C Series No. 162, para. 236; Slaughter case of the La Rochela vs. Colombia, supra , para. 277; if Anzualdo Castro v Peru, supra , para. 201; and Case Chitay Nech et al vs. Guatemala, supra , para. 251. 321 Cf. Case Vs. Black River Massacres Guatemala, supra , paras. 169 and 170. 322 Cf. Case Gudiel Álvarez et al ( "Military Journal") V. Guatemala, supra , paras. 347-349.
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notification of this judgment.
and) Application comprehensive system of psychosocial support for the relatives of girls and children who disappeared during the armed conflict and young people rediscovered that require
https://translate.googleusercontent.com/translate_f 69/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Rediscovered237. The representatives people have ar sufguedfered that severe the relatives trauma offrom missing the time persons of separation, and damage which they have proved to be irreversible and transmittable to future generations. It is for this that the representatives felt that the state should commit to tissue reconstruction family and thereby create a program of psychosocial care for young Rediscovered and their families with a special fund for the purpose and by experts in the field. In addition, representatives relied on the expertise of Martha de la Concepción Cabrera Cruz on the scope of transgenerational damage to highlight three aspects product enforced disappearance: the breakdown of family and social ties, the multigenerational damage which it is reproduced by a victim implicitly in the whole of human relations and need for collective healing. The representatives considered that "[e] nder pattern systematic and collective that originated disappearances, no attempt was ordinary or common violence, but a particular kind of political violence that had multilevel repercussions: individual, family and Social; and multidimensional: economic, health, access to education, access to justice, ie in the project life. " For this reason, they considered it necessary "to adopt a systematic pattern of comprehensive repair, heal damaged ties of the whole society, it is necessary to go beyond the individual or family care, a community psychosocial healing, collective, social "which has the following characteristics: comprehensive health programs and support from institutions offering a dignified human life that contributes to improving the quality of life of the families of enforced disappearance; knowledge of the truth, through opening military archives and others who are held by public institutions; to museums memory to publicize what happened to the younger generation; write history what happened and publish it through stories and narratives to pick up what happened in the country, open deserved routes of hope for families; create a comprehensive psychosocial support center, a highly committed multidisciplinary team to implement strategies multidimensional intervention appropriate to the complexity of the reality of the victims and families Pro Search with a crosscutting human rights must be built by family and victims and have professionals in psychosocial support, social awareness of management psychosocial trauma of human rights violations, a program for all family members looking for their children and for young Rediscovered, making differentiation between populations Adult and youth; open the possibility that young people can change their names with state support, and a page web where young people can be found in all countries and also may have international face meetings where -propiciados from the State- They can see and share experiences.
238. The State did not refer to this repair request.
Considerations of the Court
239. The Court recalls that in the case Contreras and other valued positively and noted the and coordination agreements made between the State and the representatives to realize a comprehensive program of psychosocial assistance for persons victims of disappearance who have already been forced rediscovered their families and relatives of those still They are missing, and indicated that this aspect would not be supervised by the Court. By Accordingly, the Court does not consider it appropriate to order such a measure in this case.
Four. Guarantees of non repetition
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a) Educational measures and training
240. The representatives requested the creation of a general lecture on human rights at the University of El Salvador, with a specific topic on the crime of enforced disappearance and majoring in cases of missing children in armed conflict, to "deconstruct existing prejudices and build a vision or approach from the dignity of the victims and a serious academic approach that allows long-term sensitize different social sectors. " To the regard, they noted that should take into account the academic and scientific knowledge accumulated by the only public university in the country, which accumulates the highest number of students and that it is effective it is necessary to take into account the Association for the Search for its https://translate.googleusercontent.com/translate_f 70/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… impartsexpertise a indiploma the subject. of "transitional In addition, justice" the representatives to public officials considered that are necessary related to to request that compliance with reparation measures and attention given to victims of disappearance forced, to sensitize them on issues related to transitional justice in cases of enforced disappearance and the State's obligation to compensate the damages caused to the victims. In the same line, the representatives raised the creation of an area of historical memory in education plan, which is aimed at postgraduate students and high school and which put emphasis on knowledge of the rulings issued by the Court in cases of girls and missing children. Thus, on the grounds that "[t] he current program of secondary education and school only includes topics on the peace accords in El Salvador, whose content mentioned superficially, so considered necessary to deepen the knowledge of the impacts generated by the armed conflict on children and missing children and their family ". In short, they found it necessary to amend the pensum academic all school system to include the issue of human rights of missing children during the internal armed conflict and on the inter-American system for the protection of rights humans. Finally, the representatives expressed their willingness to hold a dialogue with State representatives to sign an institutional agreement to implement these measures and that Convention is taken as an indicator of compliance.
241. The State indicated that sees positively reviewing curricula, in order to expand and strengthen the knowledge of the Salvadoran historical memory, related to severe human rights violations that occurred during the internal armed conflict and noted that the current curriculum of the subject of social studies for the third cycle and high school I developed topics of significant events in the history of El Salvador, including the conflict armed.
Considerations of the Court
242. The Court recognizes that human rights education at different levels is crucial to generate guarantees of non-repetition of facts such as those of this case and encourage values such as tolerance and mutual respect. Furthermore, the inclusion of teaching historical, such as the internal armed conflict happened in El Salvador and in particular processes the situation of girls and children who disappeared during the armed conflict is essential to maintain the historical memory for future generations.
243. Considering the above, the Court notes that the measures sought seek meet these objectives, in areas that are complementary, ie level medium education at university level and professional level. It is for this reason that the Court takes note of the willingness expressed by the State to revise curricula and encourages adoption correlative measures.
244. Moreover, the Court deems appropriate to order the State to implement, within
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reasonable, permanent programs of human rights for police, prosecutors, judges and military, as well as officials in charge of care for relatives and victims of disappearance forced people, in which the issue of human rights of children is included disappeared during the internal armed conflict and the inter-American system for the protection of human rights and control of conventionality.
5. Other measures requested
245. The Commission requested the Court to order the State to adopt measures not Repeat to ensure that the system of comprehensive protection of children is effectively implemented, including strengthening and adaptation of standards Civil Registry system and the adoption system. The State did not rule on the request.
246. Even within the modus operandi of forced disappearances during the conflict Salvadoran armed, adopting appropriate girls and boys (he was supra para. 50.e), the Court considers that the terms in which it is expressed this request for redress and https://translate.googleusercontent.com/translate_f 71/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… directlywithout relatedan argument to the about violations it, is notin this appropriate case. to order the measure because it does not save
247. The representatives requested the Court to order a program to ensure the access to education, leading to vocational and economic improvement, for family members express interest in studying and their sons, "in order to guarantee the right to which no They had shot the same circumstances of armed conflict, which caused the uprooting and forced displacement, denying them the right to a formal education, comprehensive and quality, causing up to today are not sufficiently trained for employment competitive access to adequate remuneration ". The State referred to the awarding of scholarships noted that El Salvador has made progress in the adoption of measures aimed at ensuring access to education in decent conditions for children and to ensure equity in access and permanence in the educational system. He added that as part of Repair Program Victims of Gross Violations of Human Rights during the armed conflict, State had contemplated granting scholarships to top-level and graduate victims and their families who are registered as such, for which already held a registration process. In this regard, the State agreed to push this measure as well as the possibility technical training for those who require it.
248. The representatives also asked the Court to order the State to reform all internal regulations are including express prohibitions, so that people have mentioned participated in human rights violations not hold public elected office or by direct appointment for second-degree charges. They also requested to order the State "to comply with its previous rulings that have been issued against him, especially in relation to not exalt the human rights violators such as the 3rd Infantry Brigade, whose name 'Colonel Domingo Monterrosa Barrios' or case Colonel Ernesto Vargas School, Department of Morazán ". The State did not rule on the request.
249. In addition, the representatives argued that the Pro-Search Association has been and continues It is the only organization that has been concerned to address the plight of victims forced disappearance of children, which has meant an invaluable economic spending by holistic care provided, so requested that the State of El Salvador assume debt historical in other cases of forced disappearance of children by allocating a percentage of general budget of the nation to subsidize the work of the Association Pro-Busqueda in unresolved cases, within 10 years or so the Court saw fit to According to The complexity of the problem of missing children. The State is not
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He delivered on the request.
250. The Court considers that the issuance of this judgment and ordered repairs are sufficient and adequate to compensate for the violations suffered by the victims of
This case 323 , so it sees no need to order the aforementioned measures requested by the representatives.
D. compensatory allowances
1. Material damage
251. The Commission asked the Court to properly compensate the victims in this case form that includes both material and immaterial. The representatives requested that the Court order the State to pay financial compensation to the victims of this case and family for the pecuniary and non-pecuniary damage caused, especially that of irreversibility. In which refers to loss of earnings, they considered that the state has "an obligation to compensate the relatives of the case for the economic damage suffered directly by the disappearance Forced from their families, which obviously has represented them decreased their level of life, both mental and physical health, which affects their productive capacity, as the effects emotional and social factors that are known to be suffered by all the families of such victims violation of human rights. " They said that to calculate loss of earnings in equity, You should take into account the age of the victim at the time of enforced disappearances, years to live https://translate.googleusercontent.com/translate_f 72/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… according to their life expectancy, life project, the economic improvements that could have obtaining and income. As for the damages, they considered to be included expenses related as medical treatment and medicine for the families of the victims, expenses its proceedings seeking children as well as monitoring processes Internal justice and include expenses incurred by the victims or their families in order find the truth. In this regard, they requested that the State be established reimburse the costs and costs incurred by victims and their representatives in the present case, since it has been seen the need to perform multiple disbursements to finance the national process and International in search of truth and justice. To do this, they required to be taken into account the standards established in the judgment of Case Contreras and others as a minimum, but They also requested to be considered as prolonged damage over time following lapsing. The State did not rule on the request.
Considerations of the Court
252. The Court has developed in its jurisprudence the concept of pecuniary damage and the cases they must be compensated. The Court has established that pecuniary damage entails "the loss or detriment of the income of the victims, the expenses incurred in respect of the facts and
pecuniary consequences that have a causal link to the facts of the case " 324 .
253. In the present case, the representatives have requested the Court to set an amount for profit loss and damages for the families of the victims. Furthermore, the Court will assess in subclause of costs and expenses those economic expenditures made by the Association Pro- Search arising from the work of searching for victims in this case, since the concepts that have erogado also relate to expenditure in the promotion of investigations internally.
323 Cf. Case Radilla Pacheco v United Mexican States, supra , para. 359, and Case of Human Rights Defender al vs. Guatemala, supra , para. 281. 324 Bámaca Velásquez vs. Guatemala. Reparations and Costs . Judgment of February 22, 2002. Series C No. 91, para. 43, and Case Defensor Human Rights et al v Guatemala, supra , para. 266.
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254. As for lost profits, as it has done in other cases of enforced disappearances 325 that the whereabouts of the victim is unknown, it is possible to apply the criteria for compensation the loss of this income, which includes income he would have received during his lifetime probable. However, the Court notes that there is an inconsistency in the argument of the representatives, since applying this concept in favor of the family by affectations they have suffered; however, they estimated that for the calculation should take into account data relating to the victims of enforced disappearance, who were boys and a girl to when it began its demise. They addition to this, did not provide the minimum data necessary regarding life expectancy in El Salvador, the income received by victims, possible future earnings or potential wages in the country to make such a calculation. for this Consequently, the Court does not have sufficient elements to make such determination, so dismisses the petition in this regard.
255. As to damages, the Court considers that due to the work search performed directly the families of the victims in adverse situations, as well as expenses made by product family affectations that they experienced by disappearances identified in this case, it is reasonable to set the following amounts for damages:
First name Relationship Quantity Family Rochac Hernández Alfonso Hernández Herrera Father US $ 5,000.00 Sebastian Hernandez Rochac Brother $ 1,000.00 Tanislao Rochac Hernández Brother died $ 1,000.00 Maria Juliana Hernandez Rochac Sister $ 1,000.00 María del Transito Hernandez Rochac Sister $ 1,000.00 https://translate.googleusercontent.com/translate_f 73/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Ana Margarita Hernandez Rochac Sister $ 1,000.00 Nicolas Alfonso Torres Hernandez Brother $ 1,000.00 Salinas Family Iraheta María Adela Iraheta deceased mother US $ 5,000.00 Julio Antonio Flores Iraheta Brother $ 1,000.00 Felipe Flores Iraheta Brother $ 1,000.00 María Estela Salinas de Figueroa Sister $ 1,000.00 Amparo Hernandez Salinas Sister $ 1,000.00 Josefa Salinas Iraheta deceased sister $ 1,000.00 Family Hernández Sánchez María Adela Hernández Mother US $ 5,000.00 Jose Juan de la Cruz Sánchez Deceased father US $ 5,000.00 Joel Alcides Hernández Sánchez Brother $ 1,000.00 Valentina Hernández Maternal grandmother $ 1,000.00 Santiago Perez Maternal grandfather $ 1,000.00 Juan Evangelista Hernández Pérez maternal uncle $ 1,000.00 José Cristino Hernández maternal uncle $ 1,000.00 Eligorio Hernández maternal uncle $ 1,000.00 Rosa Ofelia Hernández maternal aunt $ 1,000.00 Family Bonilla Osorio Maria de los Ángeles Osorio Mother US $ 5,000.00 Jose de la Paz Bonilla Deceased father US $ 5,000.00 Aristides Jose Bonilla Osorio Brother $ 1,000.00 María Inés Bonilla de Galan Sister $ 1,000.00 María Josefa Rosales Maternal grandmother $ 1,000.00 María Esperanza Alvarado Aunt $ 1,000.00
325 Cf. Case of Velásquez Rodríguez v Honduras . Repairs and costs, supra , paras. 46 and 47, and Case Osorio Rivera and Family Vs. Peru, supra, para. 280.
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Luis Alberto Alvarado Uncle $ 1,000.00 Ayala Abarca Family Petronila Abarca Alvarado Mother US $ 5,000.00 Daniel Ayala Abarca Brother $ 1,000.00 José Humberto Abarca Ayala Brother $ 1,000.00 Ester Abarca Ayala Sister $ 1,000.00 Ayala Abarca Osmín Brother $ 1,000.00 Paula Alvarado Grandmother $ 1,000.00
2. non-pecuniary damage
256. The Commission asked the Court to properly compensate the victims in this case form that includes both material and immaterial. The representatives requested that the Court order the State to pay financial compensation to the victims of this case and family for the pecuniary and non-pecuniary damage caused, especially that of irreversibility. He State did not rule on the request.
Considerations of the Court
257. International jurisprudence has repeatedly established that the judgment can
constitute per se a form of reparation 326 . The Court has nevertheless developed in its jurisprudence the concept of pecuniary damage and has established that it "may include both the suffering and hardship caused to the direct victims and their relatives, undermining very significant personal values and alterations, non-pecuniary nature,
under the conditions of existence of the victim or his family " 327 .
258. The Court has established that the girl and child victims of forced disappearance in the this case were affected his mental, physical and moral, generating
feelings of loss, abandonment, intense fear, uncertainty, anguish and pain 328 . Also, Court established that, following the facts of this case, the relatives of the victims suffered psychic damages and irreversible changes to their households, uncertainty about the whereabouts of the victims and a feeling of helplessness at the lack of cooperation of the State authorities and impunity generated more than three decades ( supra paras. 120 https://translate.googleusercontent.com/translate_f 74/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… 124). In view of the foregoing, the Court considers it appropriate to set the following sums for of the victims, as reasonable compensation for non-pecuniary damage:
First name Relationship Quantity Family Rochac Hernández José Adrián Hernández Rochac disappeared victim US $ 80,000.00 Alfonso Hernández Herrera Father US $ 50,000.00 Sebastian Hernandez Rochac Brother US $ 10,000.00 Tanislao Rochac Hernández Brother died US $ 10,000.00 Maria Juliana Hernandez Rochac Sister US $ 10,000.00 María del Transito Hernandez Rochac Sister US $ 10,000.00 Ana Margarita Hernandez Rochac Sister US $ 10,000.00 Nicolas Alfonso Torres Hernandez Brother US $ 10,000.00 Salinas Family Iraheta
326 Cf. Case El Amparo V. Venezuela. Reparations and Costs . Judgment 14 September 1996. Series C No. 28, para. 35, and Case Dominican and Haitian deportees vs. Dominican Republic, supra , para. 448. 327 Case of the "Street Children" (Villagrán Morales et al) v Guatemala. Reparations and Costs . Judgment of 26 May 2001. Series C No. 77, para. 84, and Case Vs. Liakat Ali Alibux Suriname. Preliminary Objections, Merits, Reparations and Costs . Judgment of 30 January 2014. Series C No. 276, para. 156. 328 Cf. Case of Contreras et al v El Salvador, supra , para. 85.
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Santos Ernesto Salinas disappeared victim US $ 80,000.00 María Adela Iraheta deceased mother US $ 50,000.00 Julio Antonio Flores Iraheta Brother US $ 10,000.00 Felipe Flores Iraheta Brother US $ 10,000.00 María Estela Salinas de Figueroa Sister US $ 10,000.00 Amparo Hernandez Salinas Sister US $ 10,000.00 Josefa Salinas Iraheta deceased sister US $ 10,000.00 Family Hernández Sánchez Emelinda Lorena Hernández disappeared victim US $ 80,000.00 María Adela Hernández Mother US $ 50,000.00 Jose Juan de la Cruz Sánchez Deceased father US $ 50,000.00 Joel Alcides Hernández Sánchez Brother US $ 10,000.00 Valentina Hernández Maternal grandmother US $ 10,000.00 Santiago Perez Maternal grandfather US $ 10,000.00 Juan Evangelista Hernández Pérez maternal uncle US $ 10,000.00 José Cristino Hernández maternal uncle US $ 10,000.00 Eligorio Hernández maternal uncle US $ 10,000.00 Rosa Ofelia Hernández maternal aunt US $ 10,000.00 Family Bonilla Osorio Manuel Antonio Bonilla disappeared victim US $ 80,000.00 Maria de los Ángeles Osorio Mother US $ 50,000.00 Jose de la Paz Bonilla Deceased father US $ 50,000.00 Aristides Jose Bonilla Osorio Brother US $ 10,000.00 María Inés Bonilla de Galan Sister US $ 10,000.00 María Josefa Rosales Maternal grandmother US $ 10,000.00 María Esperanza Alvarado Aunt US $ 10,000.00 Luis Alberto Alvarado Uncle US $ 10,000.00 Ayala Abarca Family Ricardo Abarca Ayala disappeared victim US $ 80,000.00 Petronila Abarca Alvarado Mother US $ 50,000.00 Daniel Ayala Abarca Brother US $ 10,000.00 José Humberto Abarca Ayala Brother US $ 10,000.00 Ester Abarca Ayala Sister US $ 10,000.00 Ayala Abarca Osmín Brother US $ 10,000.00 Paula Alvarado Grandmother US $ 10,000.00
AND. Costs and expenses
259. The representatives requested the Court to assess in equity , the reimbursement of costs and expenses for the Pro-Search Association for investigating these cases in principle were processed internally and now internationally, but at both times have meaning outlays for transportation, courier services, communication services, food, https://translate.googleusercontent.com/translate_f 75/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… victims hosting, professional services, research conducted by the Association expenses Pro-Search search corresponding to work and workshops with various people, among which are the victims in this case. They asked the Court to take the assigned in the previous cases amounts, such as $ 70,000.00 US total assigned the Case of Contreras et al v El Salvador , as a minimum estimate based on which was estimated an amount relative to time, labor and resources used to search for victims for over 18 years. The expenses that the Association Pro-Busqueda incurred for the present case amounted at the time of pleadings and arguments to US $ 168,128.59 (One hundred sixty-eight thousand one hundred twenty-eight US dollars of the United States of America and fifty nine cents). Along with its final written arguments provided vouchers for US $ 3,977.04 total (three thousand nine hundred seventy-seven US dollars of the United States of America with four cents).
260. The State requested the Court that the costs and expenses were due and adequately supported and conform to the ratio setting the precedent of judgments in the case of the Sisters Serrano Cruz and Case Contreras and others.
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He also noted that the amount requested in this case exceed the previous standard so it requested a stated quantum reasonable. Regarding the evidence backs presented by the representatives, the State noted that some are not readable in whole or They not clearly related to expenses incurred solely in purpose case, and it found that the amount presented significantly exceeds the rate of the standard repairs. The State asked for attention to be given the documentation submitted by representatives to justify their expenses in respect of costs and expenses, of the following: some of the backup system presented photocopies are not readable in full; some of the backups presented by fuel costs are provisional bills or commercial invoices not registered with the Ministry of Finance, cash receipts or checks, which They are not suitable documents to document an expense, or have records of instances contraloras on taxes or are not authorized by these documents and for that reason, They are supported by tax administration instruments, under the law in that matter; some backups quotations not correspond to expenditure actually document a accomplished; some documented expenses are not clearly related to this international process or are not expenses that are incurred solely for purpose of this case fuel, vehicle maintenance, vehicle purchase, payment policies for sure; expenses not correspond to wages and presented either reported wage forms, some of which are not signed, as well as checks and receipts box, with the possible duplication of expenditure wages; most expenses presented in respect of legal costs do not reflect costs incurred by legal procedures and including payments for rent, food and transportation; expenses are reported hearing before the Commission made in 2010, which does not correspond to the case and travel expenses exceeding a quantum reasonable, and miscellaneous expenses, mostly in salaries are reported for which is presented receipts under international cooperation funds, representing funds solidarity, whether public or private, whose purpose was to fund activities for the Strengthening Pro-Search Association and the subsequent investigation of cases.
261. With regard to the above, the representatives said they are different documents that several expenditures made during the years in processing the support is present case, that being a non-profit institution, it does not have resource generation own and therefore receives solidarity funds of international cooperation that are intended to cover some actions on investigating cases and promote the rights of victims, but this does not affect the right to request that the State must recognize the costs due process, why asked the Court to interpret documentation According to the accounting logic and valued all the evidence and arguments according the rules of sound judgment.
Considerations of the Court
262. As the Court has pointed out on previous occasions, costs and expenses are within the concept of reparation established in Article 63.1 of the Convention https://translate.googleusercontent.com/translate_f 76/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
American 329 .
263. First, regarding the State's request that costs and expenses are appropriate to the ratio setting the precedent of the judgment in the case of the Serrano sisters Cruz , the Court reiterates that according to its jurisprudence, costs and expenses are part of concept of reparations ( supra para. 262), since the measures taken by the victims In order to obtain justice, both nationally and internationally, involves expenses that must
329 Cf. Case Garrido and Baigorria V. Argentina. Reparations and Costs . Judgment of August 27, 1998. Series C No. 39, para. 79, and Case J Vs. Peru. Preliminary Objection, Merits, Reparations and Costs. Judgment of 27 November C 2013. Series No. 275, para. 418.
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be compensated when the State's international responsibility is declared by a guilty verdict. As for reimbursement, the Court must prudently assess its scope, which includes the expenses incurred before the authorities under domestic law, as well as those incurred in the proceedings before the Court, taking into account the circumstances the specific case and the nature of international jurisdiction for the protection of rights humans. This assessment may be based on the principle of equity and taking into the expenses indicated by the parties, provided their quantum is reasonable.
264. The Court has stated that "the claims of the victims or their representatives on costs and expenses, and the evidence supporting them, be submitted to the Court in the first procedural time they are granted, that is, in the pleadings and arguments, without notwithstanding that such claims being updated at a later time, as new
costs and expenses incurred during the proceedings before this Court " 330 . The Court also reiterates that it is not enough remission of supporting documents, but requires parties to make an argument that the test relates to the fact that He considers represented, and that in the case of alleged financial disbursements, are imposed
clearly the items and justification thereof 331 .
265. Regarding the evidence on the economic disbursements made by the Association Pro- Search, the Court found that they incurred expenses related to processing the dispute internally and internationally. These expenses are related to transport, hosting, messaging, stationery and communication services, among others, and sent the proof of it. In addition, some of the expenses made by the Association Pro-Search work correspond to search for the victims in this case. Finally, some expenses They refer to workshops given by the Pro-Search Association to various people, including which are the victims in this case.
266. With regard to the State's allegations about the vouchers sent by the representatives, the Court in effect observed that: a) some pay stubs show a an expense that is not linked to clearly and precisely with this case; b) some receipts refer to office products and payroll, without being indicated by the specific percentage corresponding to the costs of this case, and c) some receipts are unreadable without them economic amount intended to detach test or the concept of expenses. The concepts referred to have been equally deducted calculation established by the Court.
267. Taking into account the foregoing, the Court finds that the expenditure incurred in the Pro-Search Association amount to approximately US $ 112,000.00 (one hundred twelve thousand US dollars United States of America). To this amount the Court considers it reasonable to add a relative amount of time, labor and resources used to search for victims more than 18 years and they continue to make to this end. Accordingly, the Court decides set a reasonable amount of US $ 180,000.00 (one hundred eighty thousand dollars of the United States of America) for the Pro-Search Association of Missing Children for costs and expenses for the work done in the search for the five victims and litigation case level domestic and international. This amount must be delivered directly to the organization representative. The Court considers that, in the procedure for monitoring compliance with the above, it may provide that the state reimburse the victims or their representatives https://translate.googleusercontent.com/translate_f 77/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
330 Case of Chaparro Álvarez and Lapo Íñiguez v Ecuador . Preliminary Objections, Merits, Reparations and Costs . Judgment of 21 November 2007 , Series C No. 170, para. 275, and Case Brothers Landaeta Mejías and other Vs. Venezuela, supra , para. 328. 331 Cf. Case of Chaparro Álvarez and Lapo Íñiguez v Ecuador , supra , para. 277, and Case Brothers Landaeta Mejías and other Vs. Venezuela, supra , para. 328.
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reasonable expenses incurred in that procedural stage.
F. Reimbursement of expenses to the Fund for Victims' Legal Assistance
268. In 2008 the General Assembly of the Organization of American States created the Fund Legal assistance of the Inter-American Human Rights System, which was created with the "Object [to] facilitate access to the inter-American human rights to people
which currently have the resources to take their case to the system " 332 . In the present case was granted under the Fund the necessary financial assistance to cover costs travel and accommodation necessary for Mrs. Maria Juliana Hernandez Rochac, Mr. José Aristides Bonilla Osorio and expert Martha Cruz de la Concepción Cabrera brought before the Court and they could give their statements and respective expertise in the public hearing held in the seat of the Court, in the city of San Jose, Costa Rica, and the costs of formalization and sending two affidavits of two respondents proposed by the representatives ( supra para. 7).
269. The State had the opportunity to submit comments on the expenditures made in this case, which reached the sum of $ 4,134.29 (four in 1100 thirty-four US dollars of the United States of America with twenty cents). The Savior said the breakdown of expenditure presented in terms of the beneficiaries and expenses covered, it complies with the resolution granting economic assistance; however, the State He noted that charges relating to the additional charges were detailed by the means of payment used as well as an additional charge for the schedule change made in relation to ticket aerial expert Martha Cruz de la Concepción Cabrera, despite the formal notification of the Resolution of the President of March 3, 2014, on which date and time of the hearing was set public case. For this reason, the State requested that these costs were excluded from reimbursement that order make to the Fund.
Considerations of the Court
270. Next, the Court must, pursuant to Article 5 of Regulation Background, evaluate the appropriateness of ordering the respondent State reimbursement Assistance Fund Legal corresponding to the Court of expenditures that may have been incurred, taking into consideration the comments submitted.
271. Because of the violations declared in this judgment and that it complied with the to qualify for the Fund, the Court ordered the State to reimburse to the Fund the amount of US $ 4,134.29 (four thousand one hundred thirty four dollars of the United States of America twenty-nine cents) for the necessary expenses incurred for appearance of the witnesses and expert witness at the public hearing of this case and to formalize and sending two affidavits. This amount shall be reinstated within ninety days from the notification of this judgment.
G. Method of compliance with the payments ordered
272. Payment of compensation established in favor of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala it must provide for those accounts or certificates of deposit in an institution
332 AG / RES. 2426 (XXXVIII-O / 08) Resolution adopted by the General Assembly of the OAS during the celebration of XXXVIII Regular Session of the OAS, at the fourth plenary meeting, on 3 June 2008, "Creation Legal Assistance Fund of the Inter - American Human Rights System ", Decisive Point 2.a) and CP / RES. 963 (1728-1709), Resolution adopted on 11 November 2009 by the Permanent Council of the OAS, " Regulations for the https://translate.googleusercontent.com/translate_f 78/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC… Operating Assistance Fund Legal Inter - American Human Rights System "Article 1.1.
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Salvadoran solvent bank in US dollars and financial conditions more favorable than permitted by law and the Salvadoran banking practice. If after ten years compensation has not been claimed, the amount will be delivered, with interest accrued, mothers and / or parents in equal parts or, if they had died, their successors, who will have a period of two years to claim them, after which, if they have not been claimed they will be returned to the State with accrued interest.
273. The State shall pay the compensation for pecuniary damage and immaterial and reimbursement of costs and expenses established in this Judgment directly to the individuals and organizations indicated therein, within one year, from the notification of this judgment, under the terms of the following paragraphs.
274. If the beneficiaries are deceased or die before it's delivered them respective compensation, it will be made directly to their heirs, pursuant to applicable domestic law. In this regard, the Court has noted that Tanislao Rochac
Hernandez 333 , María Adela Iraheta 334 , Josefa Salinas Iraheta 335 , Jose Juan de la Cruz Sánchez 336 and
Jose de la Paz Bonilla 337 have died prior to the issuance of this judgment.
275. The State must discharge its pecuniary obligations by payment in dollars United States of America.
276. If, for reasons attributable to the beneficiaries of the compensation or their heirs not possible to pay the amounts established within the time specified, the State will deposit the amount in their favor in an account or certificate of deposit in an institution Salvadoran financial solvent, in US dollars and in financial conditions more favorable allowed by law and banking practice. If compensation is not claimed corresponding after ten years the amounts will be returned to the State with accrued interest.
277. The amounts allocated in this Judgment as compensation and reimbursement of costs and expenses shall be delivered to individuals and organizations listed in full, as set out in this judgment, without reductions arising from possible charges prosecutors.
278. Should the State fall into arrears, including reimbursement of expenses to Legal Assistance Fund for Victims, shall pay interest on the amount owed corresponding to bank interest rates in El Salvador.
IX PARAGRAPHS
279. Therefore,
333 As it stated in the final written arguments of the representatives of May 2, 2014, page 29. 334 Cfr. Death certificate of María Adela Iraheta issued by the Register of Family Status of the Mayor Municipal de San Vicente (dossier of evidence, volume XI, annexed to the final written arguments, folio 4948). 335 Cfr. Death certificate of Josefa Salinas Iraheta issued by the Register of Family Status of the Mayor Municipal Usulutan (record of evidence, volume XI, annexed to the final written arguments, folio 4955). 336 Cfr. Death certificate of José Juan de la Cruz Sánchez issued by the Registry of the Family Status Municipal mayor of Villa de Meanguera (dossier of evidence, volume XI, annexed to the final written arguments, folio 4959). 337 Cfr. Death certificate of José de la Paz Bonilla issued by the Register of Family Status of the Mayor Municipal de San Esteban Catarina (dossier of evidence, volume XI, annexed to the final written arguments, folio 4929).
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COURT
DECLARES,
unanimously that:
1. Accepts the acknowledgment of international responsibility made by the State in the terms of paragraphs 18 to 36 of this judgment.
2. The State is responsible for the violation of the rights to personal liberty, personal integrity, life and recognition of legal personality recognized in Articles 7, 5, 4.1 and 3 of the American Convention on Human Rights, in relation to the Article 1.1 thereof, to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, in terms of Paragraphs 92 to 97 of this judgment.
3. The State is responsible for the violation of the right to family life and protection family, recognized in Articles 11.2 and 17 of the American Convention on Rights Humans, in conjunction with Articles 19 and 1.1 thereof against José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala, in conjunction with Article 1.1 thereof to the detriment of their relatives indicated in paragraph 34 of this judgment, in the terms of paragraphs 104 to 117 of the same.
Four. The State is responsible for the violation of the right to humane treatment, recognized in Articles 5.1 and 5.2 of the American Convention on Human Rights, in relation to the Article 1.1 thereof, to the detriment of the relatives of José Adrián Rochac Hernandez Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala indicated in paragraph 34 of this judgment, in accordance with paragraphs 119 to 125 of the same.
5. The State is responsible for the violation of the rights to fair trial and the judicial protection, recognized in Articles 8.1 and 25.1 of the American Convention on Human Rights in relation to Article 1.1 thereof, to the detriment of José Adrián Rochac Hernandez, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca and their relatives indicated in paragraph 34 of this judgment, in terms of paragraphs 136 to 161 and 170 to 173 of the same.
6. The State is responsible for the violation of the right to personal liberty, recognized in the Article 7.6 of the American Convention on Human Rights, in conjunction with Article 1.1 thereof, to the detriment of José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala and his family indicated in paragraph 34 of this judgment, in the terms of paragraphs 162-173 of the same.
AND ORDERS
unanimously that:
7. This judgment constitutes per se a form of reparation.
8. The State must effectively and as expeditiously continue the investigations, as well as open those necessary in order to identify, prosecute and, if applicable, punish
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all those responsible for the forced disappearances José Adrián Hernández Rochac, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca and and other related wrongful acts, in accordance with the provisions in paragraphs 187-191 of this judgment.
9. The State shall, without delay, a serious search, which make all efforts to determine the whereabouts of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena Hernández, Manuel Antonio Bonilla and Ricardo Ayala Abarca and take all appropriate and necessary measures to restore identity if found alive in accordance with the provisions of paragraphs 196 to 199 and 215 of the this judgment.
10. The State must take appropriate and adequate measures to ensure the justice operators and Salvadoran society, public access, technical and systemized files containing useful and relevant information for research causes followed by human rights violations during the armed conflict, accordance with the provisions of paragraphs 208 to 209 of this judgment.
eleven. The State shall provide, immediately, the medical, psychological and / or treatment psychiatric victims who request or, where appropriate, pay the sum established, accordance with the provisions of paragraphs 219 to 223 of this judgment.
12. The State must organize a public act of acknowledgment of international responsibility by the facts of this case, in accordance with the provisions of paragraph 225 this judgment.
13. The State must make the publications ordered in accordance with the provisions of paragraph 227 of this judgment.
14. The state should build a "garden museum" which remind girls and boys forcibly disappeared during the armed conflict, in accordance with the provisions of 234-236 paragraphs of this judgment.
fifteen. The State must conduct the orderly training, in accordance with in paragraph 244 of this judgment.
16. The state must pay the amounts set out in paragraphs 255, 258 and 267 of the present judgment as compensation for pecuniary and non-pecuniary damages and reimbursement of costs and expenses, as applicable, under the terms of paragraphs 272 to 278 of the same.
17. The State must reimburse the Legal Assistance Fund for Victims of the Court Inter-American Human Rights erogada the sum during the pendency of this case, in the terms established in paragraphs 271 and 278 of this judgment.
18. The State shall, within one year of notification of this judgment, submit to the Court a report on the measures taken to comply with it.
19. The Court will monitor full compliance with this judgment, in exercise of its powers and in compliance with its obligations under the American Convention on Human rights, and it will close this case once the State has fully compliance with the provisions thereof.
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Drafted in Spanish in San José, Costa Rica, October 14, 2014. https://translate.googleusercontent.com/translate_f 81/82 10/19/2017 INTER-AMERICAN COURT OF HUMAN RIGHTS CASE ROCHAC HERNANDEZ AND OTHERS VS. EL SALVADOR SENTENCE OF 14 OC…
Antonio Humberto Sierra Porto President
Roberto F. Caldas Manuel E. Ventura Robles
Diego Garcia-Sayan Eduardo Vio Grossi
Eduardo Ferrer Mac-Gregor Poisot
Pablo Saavedra Alessandri Secretary
So ordered,
Antonio Humberto Sierra Porto President
Pablo Saavedra Alessandri Secretary
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