-89human rights law.55
173. The Court has also established that public officials and individuals who hinder,
deviate or unduly delay investigations to clarify the truth about the facts must be
punished, applying, in this regard, the provisions of domestic law with the greatest
rigor.56
174. Furthermore, regarding the crime under investigation in the criminal
proceedings before the Chalatenango Trial Court to discover what happened to
Ernestina and Erlinda, the Court has noted that there are several different criminal
categories in the domestic file, such as “removal from personal care,” “deprivation of
liberty” and “abduction.” When the facts under investigation in these proceedings
occurred, the forced disappearance of persons was not classified as a crime. As of
1999, it was incorporated into the Salvadoran Penal Code as the crime of “forced
disappearance of persons.” However, the Court observes that this classification was
not adapted to international standards on forced disappearance of persons as
regards the description of the elements of the criminal classification and the penalty
corresponding to the gravity of the crime. The Court considers that El Salvador
should classify this crime appropriately and adopt the necessary measures to ratify
the Inter-American Convention on the Forced Disappearance of Persons.
175. In light of the above considerations, the Court considers that El Salvador
must investigate the facts reported in this case effectively, in order to trace Ernestina
and Erlinda, find out what happened to them and, if appropriate, identify, prosecute
and punish all the masterminds and perpetrators of the violations committed against
them, for the criminal and any other effects that may result from the investigation
into the facts. In the criminal proceedings before the Chalatenango Trial Court, the
next of kin of Ernestina and Erlinda must have full access and capacity to act, at all
stages and in all instances, in accordance with domestic law and the norms of the
American Convention. Lastly, the Court decides that the result of the criminal
proceedings must be publicized, so that Salvadoran society may know the truth of
what happened.
176. When investigating the facts, the States must not repeat the acts and
omissions indicated in the Court’s considerations on the violation of Articles 8(1) and
25 of the Convention (supra paras. 52 to 107). The characteristics of the reported
facts and the situation of armed conflict which El Salvador was experiencing when
the facts under investigation allegedly occurred must be taken into account, so that
the inquiries are not based merely on the given names and surnames of the victims,
because, for different reasons, they may not have kept those names (supra para.
48(11)).
177. Complying with the said obligations is of great importance for repairing the
damage suffered for years by the next of kin of Ernestina and Erlinda, because they
have lived with feelings of family disintegration, uncertainty, frustration, anguish and
impotence, given the failure of the judicial authorities to investigate the reported
facts diligently, and also the State’s lack of interest in tracing them by adopting other
measures.
55
Cf. Case of Carpio Nicolle et al., supra note 3, para.130; Case of the Gómez Paquiyauri Brothers,
supra note 10, para. 233; and Case of the 19 Tradesmen, supra note 15, para. 262.
56
Cf. Case of El Caracazo. Reparations (Art. 63(1) American Convention on Human Rights).
Judgment of August 29, 2002. Series C No. 95, para. 119.