DISSENTING OPINION OF JUDGE AD HOC ALEJANDRO MONTIEL ARGÜELLO
1)
I have dissented from the operative paragraphs of this judgment declaring
that the State of El Salvador has violated Articles 8 and 25 of the American
Convention on Human Rights.
2)
The Court has interpreted the
encompasses judicial guarantees in
proceedings, but also establishes the
may entail its responsibility because it
former provision in the sense that it not only
favor of the accused or the parties to the
State’s obligation to investigate any fact that
constitutes the violation of a human right.
3)
Clarifying this obligation, in its initial judgments on merits the Court stated
that: “An investigation must have an objective and be assumed by the State as its
own legal duty, not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof, without an effective
search for the truth by the Government…” (Velásquez Rodríguez case. Judgment of
July 29, 1988, para. 177 and Godínez Cruz case. Judgment of January 20, 1989,
para. 198).
4)
This does not mean that examination of the conduct of the victim or his next
of kin that may obstruct or impede, deliberately or not, the State’s action should be
totally dispensed with when assessing how the State has complied with its obligation
to investigate.
Naturally, the circumstances of each case must be taken into consideration;
particularly, whether it occurred in a populated or isolated place, whether many
similar cases occurred at the same time that also require the attention of the
authorities, whether the fact occurred recently or in the past, etc.
5)
In the instant case, it was stated that the disappearances of the Serrano Cruz
sisters occurred on June 2, 1982, and the fact was not reported to the Chalatenango
Trial Court by the alleged victims’ mother until April 30, 1993, that is 11 years later.
She made a second statement before the Court and, in his brief with final
arguments, the State’s Agent in this case drew attention to seven contradictions
between the two statements; she then filed a petition for habeas corpus in which the
Agent has identified six more contradictions and, finally, before she died, she
recorded a statement in which there are a further ten contradictions. It should be
mentioned that there is not one witness to the Army’s capture of the children,
because one of their sisters merely stated that they were hidden in the undergrowth
and she heard members of the Army say they had found two children. This
statement differs from the mother’s statement. Regarding the statement made by
María Esperanza Franco Orellana that she had seen the children descending from an
Army helicopter and being handed over to the Red Cross, in her statement before
the Court, she said that she had seen nothing and, besides, if her first statement is
accepted, this would free the State from responsibility, because the Army would
have delivered the children to the Red Cross, even though the latter has not been
able to provide any information in this respect.
6)
I do not consider it necessary to start examining all the evidence submitted in
this case, most of which refers to matters that throw no light on the alleged
disappearance, because I believe that, in view of what I have stated in the preceding
paragraphs, the State cannot be accused of failing to comply with the obligation to
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