-87crime forced disappearance committed by an public official or employee,
forced disappearance committed by an individual and the disappearance of
persons committed culpably.” However, Salvadoran law does not consider
that this is a continuous crime “and, would not allow it to be classified as
continuous or permanent, unless the principle of non-retroactivity embodied
in the Constitution was respected”;
c)
Regarding the request to adapt Salvadoran laws so as to eliminate any
legal obstacles preventing justice in this case, “the Chalatenango Trial judge
has never ruled that it is not possible to investigate, prosecute and punish
those who are allegedly guilty of the facts in this case, owing to the Amnesty
Act”; and
d)
In a communication of October 18, 2004, the State submitted a
photocopy of “Executive Decree No. 45 [of October 5, 2004,] creating the
Inter-institutional Commission to trace children who disappeared as a result
of the armed conflict in El Salvador.”
Considerations of the Court
165. In this section, the Court will determine those measures of reparation that
seek to repair the non-pecuniary damage and will also decide on measures of a
public nature.49
a)
Obligation to investigate the reported facts, identify and punish those
responsible and conduct a genuine search for the victims
166. The Court has concluded, inter alia, that El Salvador violated Articles 8(1) and
25 of the American Convention, in relation to Article 1(1) thereof, to the detriment of
Ernestina and Erlinda Serrano Cruz and their next of kin, because the procedure
concerning the petition for habeas corpus filed by Erlinda and Ernestina’s mother,
and also the criminal proceedings reopened as a result of the decision on habeas
corpus, have not been effective in determining what happened to Ernestina and
Erlinda Serrano Cruz, tracing them, and investigating and punishing those
responsible, because they were processed without due diligence (supra paras. 106
and 107). Likewise, in the criminal proceedings before the Chalatenango Trial Court,
which is at the investigation stage, the principle of reasonable time embodied in the
American Convention has not been respected. Also, since the case was submitted to
the Inter-American Court, the criminal investigation before the Chalatenango Trial
Court has been addressed principally at defending the State in the international
proceedings before the Court and not at investigating the facts reported in the
criminal proceedings (supra para. 104).
167. Moreover, in addition to not adopting the necessary judicial measures to trace
Ernestina and Erlinda, the State has not adopted other types of measures required to
attain this objective.
168.
49
The next of kin of Ernestina and Erlinda Serrano Cruz have the right to know
Cf. Case of the Plan de Sánchez Massacre. Reparations, supra note 3, para. 93; Case of De la
Cruz Flores, supra note 8, para. 164; and Case of the “Juvenile Reeducation Institute”, supra note 9, para.
314.