60
166. The representatives alleged the violation of the right to the truth, because “the
Salvadoran Armed Forces have systematically refused to provide information that would be
useful for determining the whereabouts of the children” in the different judicial proceedings
underway, stating that they do not have the requested information, and the judicial and
prosecutorial authorities have accepted that response. The representatives underlined that
the State authorities cannot shield themselves by alleging lack of evidence of the existence
of the requested documents, but rather they must justify the refusal to provide them,
demonstrating that they have taken all the measures at their disposal to prove that the
requested information does not exist.
167. For its part, the State indicated that domestic provisions oblige the public authorities,
including the military authorities, to provide information on cases such as this one. Thus, it
affirmed that Salvadoran legislation permits access to information contained in the military
archives of that era, by judicial order or to institutions with investigative powers, such as the
Prosecutor General’s Office and the Ombudsman’s Office. Furthermore, it indicated that the
National Search Commission is empowered to inspect documentary records or the files of
State institutions, especially the records or archives of military or police institutions, or
detention centers that functioned between January 1, 1977, and January 16, 1992. In
addition, it provided information on “the entry into force on April 8, 2011, of the Law on
Access to Public Information,” which was promulgated by the Legislative Assembly on March
3, 2011. In this regard, it indicated that the said law “will provide an internal mechanism for
accessing information concerning government activities allegedly related to the
disappearance of children during the internal armed conflict” and explained the control
mechanisms included in the law.
168. The evidence presented reveals that, within the framework of the judicial
investigations and those of the Public Prosecution Service, as well as the habeas corpus
proceedings, the authority in charge of directing them or the executing judge requested
information from different military authorities and the Ministry of Defense. The invariable
response, when there was one, was that the information requested had not been found or
did not exist. The Court notes that the inspection carried out in the archives of the records of
the Fifth Infantry Brigade on September 16, 1997, required the prior consent of the Minister
of Defense, even though there was a clear court order for the inspection. In addition, the
Court observes that, in another of the investigations, the prosecutor assigned to the case
was informed that the records of the Brigade’s operations in 1980 and 1990 were located in
the General Archive of the Ministry of Defense and that any information of that nature could
be provided by the Human Rights Department of the Legal Affairs Directorate of the Ministry
of Defense. However, there is no record of any further measures taken in this regard (supra
footnote 216). In short, the authorities in charge of the investigation did not take any other
steps to collect the requested information.
169. The Court finds that it has been demonstrated in this case that the authorities of the
Armed Forces and the Ministry of Defense systematically denied information and access to
the archives and military files to the judicial authorities and the Public Prosecution Service.
The presence of this pattern can be observed from the first steps taken in the internal
investigations in 1997 up until the last measure taken in 2010 (supra paras. 162 and 168).
This Court considers that this refusal has prevented the investigations underway from
identifying those individuals who formed part of the planning and execution of the
counterinsurgency operations, and from obtaining the personal information of those who
charged during these proceedings.
170. The Court finds that the right to know the truth has the necessary effect that, in a
democratic society, the truth is known about the facts of grave human rights violations.
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