REPORT Nº 11/081 PETITION 732-03 ADMISSIBILITY EMELINDA LORENA HERNÁNDEZ EL SALVADOR March 5, 2008 I. SUMMARY 1. On September 11, 2003, the Inter-American Commission on Human Rights (hereinafter “the Inter-American Commission” or “the IACHR”) received a complaint lodged by the Association for the Search for Disappeared Children [Asociación Pro-Búsqueda de Niñas y Niños Desaparecidos (Asociación Pro-Búsqueda)], (hereinafter “the petitioners”), which alleges the international responsibility of the Republic of El Salvador ("the State," “El Salvador,” or the “Salvadoran State”) for the alleged forced disappearance of the child Emelinda Lorena Hernández and for the subsequent lack of investigation of and reparations for said act. The petition alleged the following violations: right to humane treatment (Article 5); right to personal liberty (Article 7); right to a fair trial (Article 8); rights of the family (Article 17); right to a name (Article 18); rights of the child (Article 19); and right to judicial protection (Article 25) of the American Convention on Human Rights (hereinafter “the Convention” or “the American Convention”) all in connection with the general duty to respect and ensure the rights in (Article 1(1)) of the same treaty. 2. According to the petitioners, the minor Emelinda Lorena Hernández was the victim of forced disappearance at the hands of members of the Salvadoran army, and disappeared on December 12, 1981, in La Joya canton, Meanguera district, in Morazán Department, during a military operation carried out by members of the Atlacatl Rapid Response Infantry Battalion of the Salvadoran armed forces. The petitioners say that when the town was attacked, the girl, then 11 months and 15 days old, was in the care of Ms. Marta Ramírez, a family acquaintance. That same night, a group of people, including Emelinda’s father, went to the town to see what happened, and found that Ms. Marta Ramírez and her four children had been assassinated; they say that Emelinda’s body was not found, and they only found her shoes and a shawl. The complaint says that after these facts, many witnesses saw soldiers carrying children. The petitioners say that during the armed conflict in El Salvador the forced disappearance of persons was a pattern followed by the State. They add that more than 26 years after the facts, the whereabouts of Emelinda remain unknown; and all measures taken with the authorities to clarify the facts, including a habeas corpus petition, were fruitless, so they consider that the State is unwilling to fulfill its respective obligations. 3. For its part, the State maintains that in El Salvador there was no systematic practice of disappearance or extermination of children by the Salvadoran armed forces; and it is not the State’s responsibility if children were victims of forced disappearance. El Salvador says that in 2002 the petitioners filed a habeas corpus motion that was stayed for lack of elements and information about the child who was allegedly disappeared; however the State says that the petitioners had the opportunity to reinstate this remedy, or use various remedies at their disposal, but did not do so. Therefore, it asks the IACHR to find the petition inadmissible for lack of exhaustion of domestic remedies. 4. Without prejudging the merits of the case, the IACHR concludes in this report that the petition is admissible in the light of Article 46.2.b and c of the American Convention. The InterAmerican Commission therefore decides to transmit this decision to the parties and continue with its analysis of the merits with regard to the alleged violation of Articles 5, 7, 8, 17, 19, and 25 of the American Convention, in connection with Article 1.1 of the same treaty.In addition, in application of the iura novit curia principle, the Commission will analyze, in the merits phase, if there is a possible violation of Articles 3 and 4 of the Convention in relation to 1 Commissioner Florentín Meléndez Padilla, a Salvadoran national, did not participate in the discussion and decision of this report, pursuant to Article 17(2)(a) of the IACHR Rules of Procedure. 1