4
account of the situation of internal armed conflict and the lack of judicial independence prevailing
in the country at the time.
17.
The petitioners contend that the remedy for prompt decision (Queja por
Retardación de Justicia) – identified by the State as a resource that should have been exhausted
prior to invoking this international venue – is an extraordinary resource, provided for in domestic
law for civil matters and not suitable in the instant case given the criminal nature of the alleged
facts. They also maintain that the matter of this petition has not been submitted to any other
international settlement proceeding.
18.
To summarize, the petitioners claim that on account of the forced disappearances
of Patricia Emilie Cuellar Sandoval, Mauricio Cuellar Cuellar, and Julia Orbelina Pérez, and of the
impunity that has surrounded them – allegedly arising from the absence of an efficient
investigation and from the failure to resolve the judicial proceedings – the State of El Salvador is
internationally responsible for alleged violations of Articles 4, 5, 7, 8, and 25 of the American
Convention, in conjunction with Article 1.1 thereof.
B.
The State
19.
For its part, the Salvadoran State maintains that the petition is inadmissible. 4 It
claims that the remedies provided by domestic law have not been exhausted, and it argues the
existence of unresolved legal proceedings and of judicial remedies that are still to be filed.
20.
On the first point, El Salvador notes the existence of proceedings before the office
of the General Prosecutor of the Republic and before the Fourth Investigating Court that are still
pending resolution, and through which the State is making efforts to ensure justice, to clear up the
alleged disappearances, and to determine the alleged victims’ whereabouts. In particular,
regarding the first set of proceedings, El Salvador maintains that the failure to secure positive
results does not mean there has been an unwarranted delay in dealing with it; it maintains that
that is a consequence of the length of time that passed between the date of the incidents (July
1982) and the date on which the complaint was presented (March 2003), and of the negative
impact that this length of time has had on the possibility of gathering evidence.
21.
In addition, El Salvador contends that the delay in resolving the habeas corpus
filing lodged with the Constitutional Chamber of the Supreme Court of Justice could have been
due to a lack of evidence. The State adds that since resolutions of this kind do not give rise to res
judicata, either the petitioners or any other person could have filed for a new habeas corpus
remedy, if they had had the necessary evidence.
22.
Regarding the judicial remedies that are still to be filed, El Salvador holds that
given the dissatisfaction with the length of time that has gone by since the opening of criminal
proceedings No. 392-82, the petitioners should have filed a remedy for prompt decision, because:
(i) it is a remedy provided for in the law of criminal procedure in force at the time the proceedings
were initiated and substantiated, 5 and (ii) even were it not expressly provided for in that law, the
4
In its first reply, the Salvadoran State said that in light of the stage in the proceedings at which the petition was,
it would solely address matters relating to its admissibility, emphasizing that that did no mean that it accepted or
acknowledged the truthfulness of the facts described by the petitioners.
5
The State notes that the remedy in question was regulated in Title IV, “Extraordinary Resources,” of the Code of
Criminal Procedure in effect at the time.