I/A Court H.R., Case of Rochac Hernández et al. v. El Salvador. Merits, Reparations and Costs. Judgment of October 14, 2014. Series C No. 285.

Non official brief

This summary is also published in the website of the Council of Europe in the following link: https://www.venice.coe.int/files/Bulletin/B2015-2-e.pdf

 

Headnotes:

 

Articles 17 and 19 of the American Convention form part of the non-derogable nucleus of rights, which are not subject to suspension, in conformity with Article 27 ACHR.

 

International humanitarian law protects children generally as part of the civilian population, that is to say, the persons taking no active part in hostilities, which must be treated humanely and not be targeted in any attack. In addition, children, given that that they are more vulnerable to suffer human rights violations in armed conflict, benefit from special protection according to their age, which is the reason why the States must provide them with the care and the help they need. This principle is also reflected in Article 38 of the Convention on the Rights of the Child. Among the measures of this nature established by treaties of international humanitarian law are those which seek to preserve family unity and facilitate the search, identification, and reunification of families dispersed as a result of armed conflict, and, in particular, of unaccompanied and separated children. Furthermore, the obligations of States to protect children within the context of non-international armed conflicts are defined in Article 4.3 of the Additional Protocol II to the Geneva Conventions which states, inter alia, that «b. all appropriate steps shall be taken to facilitate the reunion of families temporarily separated [...].

 

The right to identity encompasses, inter alia and as a non-exhaustive list, several elements such as the right to nationality, to a name, and to family relationships. The American Convention protects these elements as separate rights. However, not all of these rights are necessarily affected in all cases relating to the right to identity.

 

The duty to investigate and the search for disappeared persons constitute an imperative obligation of the state, and these actions must be carried out in compliance with international standards, taking into account that the victims were children at the time of the events. Thus, it is fundamental that the State adopt clear and concrete strategies aimed at ending the impunity in the prosecution of the enforced disappearance of children during the armed conflict, so that the systematic character of these crimes, which affected Salvadoran children in particular, is emphasised, and so that events of this kind do not occur again.

 

The right to know the truth implies knowing the full and complete truth as to the events that transpired, their specific circumstances, who participated in them, and the reasons that motivated them. In cases of enforced disappearance, the right to the truth also has a special dimension: to know the fate and whereabouts of the victims. Apart from the work carried out by various entities to determine the fate and whereabouts of the victims and to prosecute those responsible for the crimes, the State must, as a measure of reparation that seeks to satisfy the right of society as a whole to know the truth, implement appropriate measures in order keep the memory of the victims alive and to ensure transparency regarding these human rights violations through the establishment of public memory sites, such as memorials, monuments, and museums.

Human rights education at different levels is crucial to guarantee that events similar to those of the present case are not repeated and to promote values such as tolerance and mutual respect. Furthermore, the teaching of historical facts, such as those relating to the armed conflict in El Salvador and, in particular, the situation of the disappeared children during this conflict is essential to keep the historical memory alive for generations to come.

 

Summary:

 

I.  This case relates to the responsibility of El Salvador for the enforced disappearance of five children in separate incidents between 1980 and 1982, within the context of a pattern of enforced disappearances of children during the armed conflict in El Salvador (1980-1991). The five children were disappeared during military operations which were part of the so-called «counterinsurgency,» and last seen with members of the armed forces. Their fates and whereabouts are unknown as of the date of the judgment. The allegations included the failure to carry out serious, thorough, and exhaustive investigations.

 

On 21 March 2013, the Inter-American Commission of Human Rights submitted the case, alleging violations to Articles 3, 4, 5, 7, 8, 17, 19 and 25 ACHR, in relation to Article 1.1 ACHR.

 

II.  On the merits, the Court declared that the enforced disappearance of the five children constituted multiple and on-going violations of their rights to personal liberty, humane treatment, life, and juridical personality, contained in Articles 7, 5, 4.1 and 3 ACHR, in conjunction with Article 1.1 ACHR.

 

The Court also found that the State had violated the right to privacy and the rights of the family, contained in Articles 11.2 and 17 ACHR, in conjunction with Articles 19 and 1.1 ACHR, due to the illegal detention of the children by state officials and the separation from their families. The Court declared that these acts constituted violations of the rights of the children as well as of the members of their families.

 

Additionally, the Court declared that the State violated the right to humane treatment recognised in Articles 5.1 and 5.2 ACHR, in conjunction with Article 1.1 ACHR, due to the suffering caused to the members of the children s families after their enforced disappearance and the lack of investigations by State authorities. The Court asserted that this constitutes an on-going violation as the whereabouts of the children were unknown as of the date of the judgment.

 

The Court also found violations of the rights of the children and their family members to a fair trial and judicial protection, contained in Articles 8.1 and 25 ACHR, in conjunction with Article 1.1 ACHR, given that the State failed to carry out serious, thorough, and exhaustive investigations within a reasonable period of time, and that, therefore, as of the date of the judgment a situation of total impunity remained in relation to the children s enforced disappearance.

 

Finally, the Court declared that the failure to carry out effective habeas corpus proceedings to determine the whereabouts of the children constituted a violation of the rights to personal liberty, fair trial and juridical protection established in Articles 7.6, 8.1 and 25.1 ACHR, in conjunction with Article 1.1 ACHR, to the detriment of the children and their family members.

 

The Court emphasised the importance of the strengthening of scientific and forensic capacities for the search of disappeared children in order to identify them and determine their parentage. Moreover, if the family members of persons who were children at the time of the events are aging, genetic samples must be taken urgently and conserved in order to allow the future identification of disappeared children.

 

Accordingly, the Court concluded that the judgment itself constituted a form of reparation and ordered, inter alia, that the State: continue investigations and open any other investigations necessary to identify, judge and, if appropriate, punish those responsible for the enforced disappearance of the five children and any related crimes; carry out, as soon as possible, a serious search to determine the whereabouts of the children and adopt all necessary measures for the restoration of their identities if they are found to be alive; adopt appropriate measures to guarantee that authorities charged with the administration of justice, as well as Salvadoran society, have public, technical and systematised access to archives containing useful information for investigations in proceedings related to human rights violations during the armed conflict; provide medical, psychological and or psychiatric attention to the victims; carry out a public act of recognition of responsibility; construct a «garden-museum» («jardín museo») to commemorate the child victims of enforced disappearance during the armed conflict; and implement training programs.