8
must meet the criteria of independence —i.e. they may not be a member of a political
party, or have a work history that includes employment or connection with military
institutions, or have been a member of any type of armed group— and possess vast
experience and expertise in human rights, among other requirements.” The
commission will have authority to request information regarding files, conduct
inspections in any office or agency of the executive branch, maintain constant and
direct communication with the group of victims of forced disappearance of children,
issue public reports, make recommendations and promote awareness campaigns.
23.
The representatives pointed out that the draft Decree “sets forth provisions that
would lead to compliance with most of the requirements specified in the Judgment.”
However, they raised some concerns about the commission, mainly that: a) it would
be located in the building of the Ministry of Foreign Affairs, which place would be
difficult to access; b) it would be funded using the resources of the Ministry, which
could compromise its independence, and c) its investigative powers would be limited to
“the offices and agencies under the executive branch” and would therefore lack
authority to request information from the Legislature or the Judiciary, which could aid
in the investigations.
24.
The Inter-American Commission pointed out that the creation of a commission
for the search for disappeared children “is an important step that could help overcome
the initial shortcomings.” In addition, it took into consideration the concerns raised by
the representatives and reserved its opinion on this issue until it can get hold of the
text of the Decree.
25.
That the Court specified a period of six months from the date notice of the
Judgment was given for the State to comply with such measure of reparation. After
almost five years, the Court notes that this obligation has not been fulfilled. The Court
takes into consideration that the State plans to set up a "National Commission for the
Search for Children who Disappeared during the Internal Armed Conflict”, to replace
the previous Inter-Institutional Commission for the Search for Disappeared Children
that finished its work on May 31, 2009. According to the information provided by the
State, the new commission would aim to comply with the requirements set forth in the
Judgment. The Court points out that, in order to achieve such aim, the aforesaid
commission should, inter alia, be independent and impartial, have authority to take all
such measures as may be necessary to investigate and gather evidence relating to the
possible whereabouts of the children who disappeared during the armed conflict.
Additionally, it is essential that all government bodies and authorities be under the
obligation to cooperate in providing information and access to all files and records.13
Furthermore, the Court notes that the selection of the members of the
abovementioned Commission for the Search for Disappeared Children is in its first
stages, prior to its establishment. In addition, the Tribunal has no information about
whether the draft Decree that creates said commission has been enacted by the
Executive and published in the Official Gazette.
26.
Based on the foregoing, the State must provide up-to-date information to the
Court regarding: a) the possible enactment and publication of the abovementioned
draft Decree in the Official Gazette, in which case the State must submit a copy
thereof; b) progress towards the creation and operation of the aforesaid commission as
well as its compliance with the requirements set forth in the Judgment; c) progress
13
Cf. Case of the Serrano-Cruz Sisters, supra note 12, paras. 184 to 188.