REPORT Nº 90/06 1
PETITION 731-03
ADMISSIBILITY
JOSE ADRIAN ROCHAC HERNANDEZ
EL SALVADOR
October 21, 2006
I.

SUMMARY

1. On September 11, 2003, The Inter-American Commission on Human Rights (hereinafter the
“Inter-American Commission” or “the IACHR”) received a complaint filed by the Association for
the Search of Missing Children (Asociación Pro-Búsqueda de Niñas y Niños Desaparecidos—
Asociación Pro-Búsqueda) (hereinafter “the petitioners”), claiming that the Republic of El
Salvador (hereinafter “the State”) bears international responsibility for the forced
disappearance of the child José Adrián Rochac Hernández and for the subsequent failure to
investigate, and make reparations for these alleged violations. The petitioners claim that the
reported incident constitutes a violation of several rights enshrined in the American Convention
on Human Rights (hereinafter "the Inter-American Convention"): the right to personal integrity
(Article 5); the right to personal liberty (Article 7); the right to a fair trial (Article 8); the right to
protect the family (Article 17); the right to a name (Article 18); the rights of the child (Article
19); and the right to judicial protection (Article 25), all in violation of the general duty to respect
and guarantee rights (Article 1.1).
2. The complaint alleges that, on December 12, 1980, José Adrián Rochac Hernández, age five,
was taken by military personnel belonging to El Salvador’s Air Force and members of
paramilitary groups from the zone of San Martín, during a raid in the canton of San José
Segundo, district of San Martín, in the department of San Salvador. Since then, almost 25
years after the incident, the whereabouts of the child are unknown. All the steps taken with
the authorities to shed light on the incident, including the filing of a criminal complaint and a
motion for the issuance of a writ of habeas corpus, have been unsuccessful.
3. The State contends that remedies under domestic law have not been exhausted. The State
points out that the Attorney General’s Office started investigating the case and that this
investigation is ongoing and must be delved into further to determine the circumstances of the
case. The State also points out that the motion for a writ of habeas corpus was filed 20 years
after the incident occurred and that it was dismissed for lack of background records proving
disappearance. It also claims that, during the domestic armed conflict, there were
opportunities to file a report on the disappearance to the Government Commission on Human
Rights and the International Committee of the Red Cross, but that, regarding the child, this
was never done. Therefore, it requests the IACHR to declare the petition inadmissible for
failure to exhaust remedies under domestic law. Furthermore, the State points out that the
IACHR lacks jurisdiction because the law applicable during the armed conflict was International
Humanitarian Law and that the Inter-American Court of Human Rights lacks jurisdiction to
hear the case because of the reservations made by the State of El Salvador when it accepted
the Court’s contentious jurisdiction.
4. Without prejudging the merits of the case, the IACHR concludes in this report that the case
is admissible, since it meets the requirements set forth in Articles 46 and 47 of the American
Convention. The Inter-American Commission decides to notify the parties of its decision and to
continue the in-depth examination of the supposed violations of the American Convention,
publish this decision and include it in its Annual Report to the OAS General Assembly.
II.

PROCESSING WITH THE COMMISSION

5. The Inter-American Commission assigned number 731-03 to the petition and, on December
24, 2003, requested information from the Salvadoran State about the parties involved in the
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Commissioner Florentín Meléndez, a national of El Salvador, did not participate in the deliberations or voting on the
present case, in compliance with Article 17.2.a of the IACHR’s Rules of Procedures.
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