26
92.
Finally, in relation to the alleged violation of Article 19 of the American
Convention, the Commission indicated that the State had failed to comply with the
obligations arising from this article by “not taking any measure to return them to
their family” and “not having determined […] their whereabouts.” The Commission
indicated that, since June 1995, “the judicial authorities of El Salvador have had the
treaty-based obligation to provide justice by conducting comprehensive investigatory
measures aimed at determining the whereabouts of the Serrano Cruz sisters,
identifying those responsible for the violations committed against them, and making
reparation to their next of kin.” The condition established by the State when
recognizing the jurisdiction of the Court does not prevent the Court from ruling and
“ending the denial of justice.” In this regard, the representatives indicated that the
State has not complied with its obligation to provide special measures of protection,
“because it has not taken any steps to return and reunite [Ernestina and Erlinda]
with their family.”
93.
From the allegations transcribed in the preceding paragraphs, the Court notes
that it is possible that some of the facts that are the object of this case and may
constitute violations of the Convention began to be executed after the date on which
El Salvador recognized the Court’s jurisdiction. The Court considers that it has
jurisdiction to consider these alleged violations.
94.
Therefore, the Court decides to reject the preliminary objection ratione
temporis in relation to the alleged violations of Articles 8 and 25 of the Convention,
in relation to Article 1(1) thereof, and to any other violation whose facts or
commencement was subsequent to June 6, 1995, the date on which the State
deposited with the OAS General Secretariat the instrument recognizing the Court’s
jurisdiction.
95.
The Court also observes that some of the grounds for the alleged violation of
Articles 4, 8, 17, 18, 19 and 25 of the American Convention are related to the
alleged forced disappearance. Regarding these allegations, the Court decided not to
consider them because it has decided that it will not rule on the alleged forced
disappearance (supra paras. 77, 78 and 79).
96.
In summary, the Court accepts the preliminary objection ratione temporis
filed by the State, in the terms of paragraphs 77, 78 and 79 of this judgment, and
rejects the said preliminary objection in the terms of paragraphs 84, 85, 93 and 94
of this judgment.
*
*
*
“Non-retroactivity of the application of the crime of
forced disappearance of persons”
Arguments of the State
97.
In the brief filing preliminary objections, answering the application and with
observations on the requests and arguments brief, the State argued that:
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