-90-
178. Should the State, when complying with its obligation to investigate and trace
Ernestina and Erlinda Serrano Cruz, determine that they have died, the State must
comply with the right of the next of kin to know where their remains are and, if
possible, deliver the remains to their siblings so that they may honor them according
to their beliefs and customs.57 The Court has stated that the mortal remains of a
person must be treated with respect because of their significance to their next of
kin.58
179. Even though more than 22 years have elapsed since Ernestina and Erlinda
were last seen by their next of kin, the Court considers it probable that they are still
alive, since the children who disappeared in the 1982 “guinda de mayo” and who
have been traced by the Asociación Pro-Búsqueda were found alive, and it is alleged
that Ernestina and Erlinda also disappeared in the 1982 “guinda de mayo” (supra
para. 48(8)). As revealed by information submitted to these proceedings, the
Asociación Pro-Búsqueda has been able to trace approximately 246 young people
who disappeared during the armed conflict for different reasons, even though it has
not received the required cooperation from the State in its search. The Court
considers that the active participation of the State and all its authorities and
institutions in the search will make a very important contribution to resolving the
problem of the children who disappeared during the armed conflict.
180. Based on the foregoing, the Court considers it fair and just to order El
Salvador, in compliance with its obligation to investigate the reported facts, to
identify and punish those responsible and to conduct a genuine search for the
victims, to eliminate all the obstacles and mechanisms de facto and de jure that
hinder compliance with these obligation in this case, using all possible means, either
through the criminal proceedings or by the adoption of other suitable measures.59
181. The State must use all the appropriate financial, technical, scientific and other
means to trace Ernestina and Erlinda Serrano Cruz, requesting the cooperation of
other States and international organizations, should this be necessary.
182. The Court will now refer to some of the measures the State must adopt in
order to trace Ernestina and Erlinda.
b)
Establishment of a national commission to trace the young people
who disappeared when they were children during the armed conflict, with
the participation of civil society
183. The Court takes into account that on October 5, 2004, the President of El
Salvador issued Executive Decree No. 45, creating the “Inter-institutional
Commission to trace children who disappeared as a result of the armed conflict in El
Salvador.” However, the Court notes that this Decree did not contain specific
57
Cf. Case of the 19 Tradesmen, supra note 15, para. 265; Case of Molina Theissen. Reparations,
supra note 4, para. 85; and Case of Juan Humberto Sánchez, supra note 21, para. 187.
58
Cf. Case of the 19 Tradesmen, supra note 15, para. 265; Trujillo Oroza case. Reparations (Art.
63(1) American Convention on Human Rights). Judgment of February 27, 2002. Series C No. 92, para.
115; and Case of Bámaca Velásquez. Reparations, supra note 52, para. 81.
59
Cf. Case of Carpio Nicolle et al., supra note 3, para. 134; and Case of Myrna Mack Chang, supra
note 8, para. 77.