-62impunity and the pattern of violence surrounding such disappearances,” the
Ombudsman’s Office made a detailed analysis of impunity in the case of the Serrano
Cruz sisters.
103. In his testimony in the public hearing before this Court (supra para. 36), the
prosecutor demonstrated that he had not maintained his impartiality in the
investigation and that the line of investigation in the criminal proceedings was not
totally separate from the State’s defense before the Inter-American Court. In this
regard, the prosecutor explained that he took the decision not to interview any of the
alleged victims’ direct next of kin, because “it was a necessary precaution, since the
case had already been filed before the Inter-American Court” and because, in his
opinion, the mother and one of the sisters of the alleged victims “were not well
disposed towards the prosecutor”; albeit, he accepted that he did not know them.
Another action that has caught the Court’s attention is that, when the State’s Agent
visited Ms. Franco Orellana to ask her to appear before the Inter-American Court to
testify, he did so accompanied by the prosecutor responsible for the investigation
before the Chalatenango Trial Court, which shows that the latter did not maintain his
independence in his investigative functions in the criminal proceedings, but became
involved in the task of the State’s Agent defending El Salvador in the international
proceedings. Also, the prosecutor acknowledged during the public hearing before the
Court that he had not requested the judge to order the pending judicial inspections
on military premises, because he “ha[d] not taken any actions recently owing to
[his] workload” (supra para. 36). However, this prosecutor urged the judge to order
expert appraisals to verify the authenticity of the baptismal records of the alleged
victims and even requested that the date of these appraisals be advanced “as the
audience before the Inter-American Court was imminent.” In this regard, in its
decision of September 2, 2004 (supra para. 48(5)), the Ombudsman’s Office stated
that:
[…] it is worth noting that the prosecutor, formally (in a written request), acknowledged
that his motive or interest in moving the procedure forward promptly responded to the
need to present it to the Inter-American Court of Human Rights, which makes it clear
that his activity is not focused on investigating the crime itself, or obtaining justice for
the victims, but rather on defending the Salvadoran State, which is on trial before the
Inter-American Court.
104. As has been shown, while the case was being processed before the InterAmerican Court, the criminal investigation underway before the Chalatenango Trial
Court was directed principally at contributing to the State’s defense in the
international proceedings before the Court and not to investigating the reported facts
in the criminal proceedings.
105. Based on the foregoing analysis, the Court has established that, in both the
proceedings before the Constitutional Chamber of the Supreme Court of Justice and
the proceedings before the Chalatenango Trial Court, there have been serious
omissions in gathering evidence owing to the failure of the prosecutors to request
and the judges to order the necessary probative measures to determine what
happened to Ernestina and Erlinda Serrano Cruz, discover their whereabouts and
investigate and punish those responsible. The Court understands that, for different
reasons, this is a complex case; this means that the judicial authorities should have
taken into account the characteristics of the reported facts and the situation of
armed conflict in the country at the time when the facts under investigation allegedly
occurred. However, the Court finds that the investigations were not carried out with
the efficiency that the case warranted and that the judges did not fulfill their