-56harms personal liberty has occurred, even though the person in favor of whom it is
filed is no longer in the State’s custody, but has been handed over into the custody
of an individual or even though considerable time has passed since a person
disappeared.
80.
The Court finds that, according to the provisions of Article 38 and 40 of the
Salvadoran Constitutional Procedures Act, the purpose of the remedy of habeas
corpus in El Salvador has similar characteristics to those stated in the preceding
paragraph. In El Salvador, the remedy encompasses harm to the right to personal
liberty when the person is in the custody or in the power of the authorities or an
individual. Under this law, the officer responsible for executing the habeas corpus
procedure has broad powers to request information from State authorities and
individuals, and article 74 of the law on “responsibilities of officials in the habeas
corpus procedure,” establishes that “[n]o authority, court or jurisdiction shall
received privileged treatment in this matter.”
81.
In this regard, the Court considers it important to note that, in another case
decided on March 20, 2002, when resolving a petition for habeas corpus owing to the
alleged disappearance of two sisters by members of the Atlacatl Battalion in an
operation carried out in Morazán in 1981, the Constitutional Chamber of the
Supreme Court of Justice “acknowledge[d] the constitutional violation of the right to
physical liberty” of the said persons, on the basis that it was admissible to modify the
jurisprudential principles of the Constitutional Chamber in relation to habeas corpus,
“so that such serious alleged acts of harm to the right to liberty as forced
disappearance and others that might occur were not excluded from the remedy of
habeas corpus.” This Chamber stated that habeas corpus “is available to individuals
so that they may respond to possible violations of their right to physical liberty, and
it is essential to broaden the scope of its control, so that it can include the cases of
forced disappearances of persons, the effects of which differ according to the
circumstances of each specific case.”
82.
Finally, regarding the State’s argument that the remedy of habeas corpus was
not appropriate to identify the authors of the punishable facts, but rather it was the
criminal proceedings alone that were admissible, article 76 of the Constitutional
Procedures Act establishes that, once the habeas corpus has been processed, the
court that has ordered it “shall order the person or authority who has held the
beneficiary in detention or custody to be prosecuted, if it appears that they have
committed an offense, and shall remit a certified copy of the proceedings to the
competent court, if this is different from the one ordering the habeas corpus, or to
the corresponding authority or body if a prior declaration of admissibility is necessary
in order to open a case.” In this way, the use of the remedy of habeas corpus does
not exclude a subsequent criminal proceedings based on information gathered during
the remedy.
83.
The Court has stated (supra para. 65) that due diligence requires the
investigating body to carry out all measures and investigations necessary to try and
obtain the required result. Otherwise, the investigation is not effective in the terms
of the Convention.
84.
An examination of the processing of the petition for habeas corpus shows, on
the one hand, that the court that processed this remedy had, under the powers
conferred on it by domestic law, the possibility of furthering the task of discovering
the whereabouts of Ernestina and Erlinda Serrano Cruz and, on the other hand, that