29
99.
The representatives of the alleged victims and their next of kin requested the
Court to declare that it had jurisdiction to hear the facts of the instant case and
argued that:
a)
The Vienna Convention on the Law of Treaties and the Court’s recent
case law establish the principle of non-retroactivity, which means that “the
provisions of a treaty do not bind a State Party in relation to any act or fact
which took place before the date of the entry into force of the treaty.”
However, in some cases or situations this argument may be modified, owing
to the so-called “juridical theory of continuing unlawful acts.” In other words,
jurisdiction ratione temporis exists with regard to facts or violations that,
even though they occurred before recognition of the Court’s jurisdiction,
continued over time (continuing unlawful acts) and persisted after this
recognition;
b)
They share the Commission’s opinion that “the reported facts […]
constitute the crime of forced disappearance [… and] have retained this
characteristic since the recognition of the Court’s jurisdiction on June 6,
1995.” The characteristic of “continuity” implicit in the crime of forced
disappearance “authorizes the Court to hear the instant case ‘ratione
temporis’”;
c)
The crime of forced disappearance is characterized by its “finalistic
trajectory and a specific dolus,” since the crime seeks to hide the passive
subjects indefinitely, create uncertainty about their fate, cause them the most
absolute lack of security, and exclude them from the protection of the judicial
organs. The Penal Code of El Salvador includes this crime in the chapter
entitled “Crimes against humanity”; hence, the legislator wished to indicate
that “the elements that characterize the crime are those that have been
recognized by international legal doctrine as crimes against humanity”;
d)
Article 28 of the Vienna Convention on the Law of Treaties establishes
the principle of the non-retroactivity of the application of international
treaties. The alleged violations are continuing and, accordingly, do not
constitute an exception to the principle of non-retroactivity. The
commencement of the disappearance of the two Serrano Cruz sisters took
place on June 2, 1982, and this violation persists up until today, and will
persist until the whereabouts of the minors is established, because this
violation is of a continuing nature; and
e)
The crime of forced disappearance is a multiple crime, because the
legal rights affected include the individual’s right to life, liberty, humane
treatment, peace, safety and wellbeing. Some of the reported facts occurred
after June 6, 1995; they include: the filing of the petition for habeas corpus;
the delivery of the judgment of the Constitutional Chamber of El Salvador on
March 14, 1996; the procedures of the criminal proceeding aimed at
obstructing and delaying it, and the closing of the investigation on two
occasions. Moreover, the deprivation of liberty of the alleged victims
continues today, and also the separation from their family, the suppression of
their identity, the denial of justice for the girls and their family and, since
these violations are “a consequence of the disappearance, the Court has
jurisdiction to rule [on them].” In addition, the State’s negligence and
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