I/A Court H.R., Case of the Serrano Cruz Sisters v. El Salvador. Preliminary Objections. Judgment of November 23, 2004. Series C No. 118.

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/B2006-1-e.pdf

 

Headnotes:

 

The purpose of international human rights law is to provide the individual with the means to protect internationally recognised human rights before the State (its bodies, agents and all those who act in its name). All States are internationally responsible for any and every act or omission of any of their powers or bodies that violates internationally enshrined rights.

 

The State has the obligation to avoid and combat impunity, which the Court has defined as the absence of any investigation, pursuit, capture, prosecution and conviction of those responsible for the violations of rights protected by the American Convention.

 

The obligation to investigate human rights violations must be assumed by the State as its own legal duty, and must not depend upon the initiative of the victim or his family.

 

Any person, including the next of kin of victims of serious human rights violations, has the right to know the truth of everything that happened in relation to said violations.

 

Three elements should be taken into account in determining whether the time in which the proceeding was conducted was reasonable:

 

a. the complexity of the case;

b. the procedural activity of the interested part, and

c. the conduct of the judicial authorities.

 

A prolonged delay may constitute, in itself, a violation of the right to a fair trial.

 

Habeas corpus represents the appropriate means of guaranteeing liberty, controlling the respect for a person's life and integrity, and preventing his disappearance or ignorance about his place of detention, and also to protect the individual from torture or other cruel, inhuman or degrading punishment or treatment.

 

Summary:

 

I. On 14 June 2003, the Inter-American Commission on Human Rights filed an application with the Court against the State of El Salvador for the Court to decide whether the State had violated Article 4 ACHR (Right to Life), Article 7 ACHR (Right to Personal Liberty), Article 18 ACHR (Right to a Name) and Article 19 ACHR (Rights of the Child), in relation to Article 1.1 ACHR (Obligation to Respect Rights), to the detriment of Ernestina and Erlinda Serrano Cruz. The Commission also requested the Court to decide whether the State had violated Article 5 ACHR (Right to Humane Treatment), Article 8 ACHR (Right to a Fair Trial), Article 17 ACHR (Rights of the Family) and Article 25 ACHR (Right to Judicial Protection), in relation to Article 1.1 ACHR (Obligation to Respect Rights), to the detriment of Ernestina and Erlinda Serrano Cruz and of their next of kin.

 

On 2 June 1982 the Serrano Cruz sisters, then 7 and 3 years of age, were disappeared when they were allegedly captured by the Salvadoran military.

 

II.  In its Judgment of 1 March 2005, the Court held that it lacked jurisdiction to rule on possible violations that arose from facts or acts that occurred prior to 6 June 1995, or that began to be executed before that date, on which El Salvador deposited the instrument accepting the Court's jurisdiction with the OAS General Secretariat. Thus, the Court did not rule on the alleged violations of the right to life, rights of the family, right to a name, and rights of the child, embodied in Articles 4, 17, 18 and 19 ACHR.

 

Furthermore, the Court held that there had been serious omissions in the judicial investigation, particularly relating to the gathering of evidence, owing to the failure of the prosecutors to request, and the judges to order, the necessary evidentiary measures to determine what happened to Ernestina and Erlinda Serrano Cruz, discover their whereabouts and investigate and punish those responsible. The Court considered that the habeas corpus procedure and the criminal proceedings did not comply with the standards of access to justice and due process enshrined in the American Convention.

 

The Court held that the State had violated the right to judicial guarantees and judicial protection embodied in Articles 8.1 and 25 ACHR, in relation to Article 1.1 ACHR, to the detriment of Ernestina and Erlinda Serrano Cruz and their next of kin, as well as the right to humane treatment embodied in Article 5 ACHR, in relation to Article 1.1 ACHR, to the detriment of the next of kin of Ernestina and Erlinda Serrano Cruz.

 

The Court ordered the State, inter alia, to carry out, within a reasonable time, an effective investigation into the alleged facts in this case, identify and punish those responsible and conduct a genuine search for the victims. In order to determine the whereabouts of Ernestina and Erlinda Serrano Cruz, the Court ordered the State to establish a national commission to trace the young people who disappeared during the armed conflict when they were children, create a web page to this end, as well as a genetic information database. Among other forms of reparations, the State was ordered to designate a day dedicated to the children who disappeared during the internal armed conflict, and to provide free of charge, through its specialised health institutions, the medical and psychological treatment required by the next of kin of the victims. The State was also ordered to pay for material and moral damages, as well costs and expenses.