44
institutions have an urgent duty to investigate the truth, make it public and compensate the victims.
135. The State did not comment specifically on these arguments, but acknowledged the violation of
Articles 8 and 25 of the Convention based on the contents of the Commission´s merits report (supra
para. 20). However, the State pointed out that the Amnesty Law has not been applied in the
investigations into the facts of this case and cited the ruling on constitutionality issued on September
26, 2000, by the Constitutional Chamber of the Supreme Court in files 24-97 and 21-98, which allowed
for the possibility that in specific cases the judges might consider not applying the 1993 Amnesty
Law, for example for human rights violations committed during the internal armed conflict, such as
forced disappearances. The State also indicated that a new action of unconstitutionality is pending
before the Constitutional Chamber, and referred to a series of advances in domestic case law. It also
indicated that the task of investigating the massacres that occurred during the armed conflict has
been centralized in the Human Rights Unit of the Attorney General’s Office.
Considerations of the Court
136. The Court notes that three types of proceedings were initiated in El Salvador regarding the
forced disappearances of José Adrián Rochac Hernández, Santos Ernesto Salinas, Emelinda Lorena
Hernández, Manuel Antonio Bonilla and Ricardo Abarca Ayala: investigations of human rights
violations by the Office of the Human Rights Ombudsman; criminal investigations by the Public
Prosecution Service (Ministerio Público), and constitutional proceedings of habeas corpus before the
Constitutional Chamber of the Supreme Court.
137. In light of the State’s acknowledgement of responsibility, and bearing in mind the serious
nature of the facts in this case, it is pertinent to analyze the different proceedings undertaken, in
order to determine whether these constituted an effective remedy to guarantee to the victims and
their families their rights to justice, to know the truth and to reparation, in the following order: a) the
obligation to initiate an investigation ex officio; b) lack of due diligence in the criminal investigations,
and c) the habeas corpus proceedings.
138. In this order of considerations, the Court will address the legal and factual obstacles that
prevented the State from complying with its obligation to investigate cases of forced disappearance,
giving rise to a situation of impunity, based on its deliberations in the case Contreras et al. v. El
Salvador regarding the grounds for the obligation to investigate the facts of forced disappearance,
and the specific implications in the case of children, in the context of a systematic pattern of serious
human rights violations.217
139. The Court has established that the right of access to justice requires an effective investigation
of the facts to determine the corresponding criminal responsibilities within a reasonable time. Hence,
given the need to guarantee the rights of those who have been affected, a prolonged delay may, in
itself, constitute a violation of judicial guarantees.218 The Court has also indicated that the State bodies
responsible for investigating the forced disappearance of persons in order to determine their
whereabouts, clarify what happened, identify those responsible and punish them, must perform their
tasks diligently and exhaustively.219 It is pertinent to recall that, in cases of forced disappearance, it
is crucial that prompt and immediate action be taken by prosecutorial and judicial authorities to order
timely and necessary measures aimed at determining the whereabouts of the victim or the place
217
Cf. Case of Contreras et al. v. El Salvador, supra, paras. 126 to 130.
Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs. Judgment
of June 21, 2002. Series C No. 94, paras. 142 to 145, and Case of Osorio Rivera and Family v. Peru, supra, para. 192.
218
Cf. Case of Velásquez Rodríguez v. Honduras. Merits, supra, para. 177, and Case of Contreras et al. v. El Salvador,
supra, para. 145.
219