23
76.
In this regard, the United Nations Human Rights Committee has declared
inadmissible, ratione temporis,13 several communications where a complaint was
filed against a State that had established a limitation to the Committee’s jurisdiction
similar to the limitation examined in this case.
77.
Based on the above, the Court decides that the facts that the Commission
alleges in relation to the alleged violation of Articles 4 (Right to Life), 5 (Right to
Personal Integrity) and 7 (Right to Personal Liberty) of the Convention, in relation to
Article 1(1) (Obligation to Respect Rights) thereof, to the detriment of Ernestina and
Erlinda Serrano Cruz, are excluded owing to the limitation to the recognition of the
Court’s jurisdiction established by El Salvador, because they relate to violations
which commenced in June 1982, with the alleged “capture” or “taking into custody”
of the girls by soldiers of the Atlacatl Battalion and their subsequent disappearance,
13 years before El Salvador recognized the contentious jurisdiction of the InterAmerican Court.
78.
In view of these considerations and pursuant to the provisions of Article 28 of
the 1969 Vienna Convention on the Law of Treaties, the Court admits the preliminary
objection ratione temporis filed by the State, disallowing the Court from hearing acts
or facts that occurred before June 6, 1995, the date on which the State deposited
the instrument recognizing the Court’s jurisdiction with the OAS General Secretariat.
79.
Since the temporal limitation established by the State is compatible with
Article 62 of the Convention (supra para. 73), the Court admits the preliminary
objection ratione temporis filed by El Salvador so that the Court may not consider
those facts or acts that commenced prior to June 6, 1995, and that persist after that
date when its jurisdiction was recognized. Accordingly, the Court will not rule on the
alleged forced disappearance of Ernestina and Erlinda Serrano Cruz and, thus, on
any of the allegations concerning violations related to the disappearance.
80.
However, the Commission has submitted to the Court’s consideration several
facts related to an alleged violation of Articles 8 (Right to a Fair Trial) and 25
(Judicial Protection) of the Convention, in relation to Article 1(1) (Obligation to
Respect Rights) thereof, which allegedly took place after recognition of the Court’s
jurisdiction and which occurred in the context of the domestic criminal investigations
to determine what happened to Ernestina and Erlinda Serrano Cruz. The Commission
expressly stated that there are “facts and effects subsequent to the date on which
the Court’s jurisdiction was recognized by the Salvadoran State” that “remain,” “are
repeated” and “commenced” and “were executed” after the said date of the State’s
recognition of the Court’s jurisdiction. According to the Commission, “[t]here are
completely independent judicial decision, new decision to file the case, to close
judicial proceedings, decisions to re-open, to hear judicial actions as mere
formalities, [...] harassment of witnesses and next of kin of the victims” and a
“permanent attitude by the State not to allow the re-establishment of the identity of
the girls.” The Commission added that the “measures taken by the Salvadoran State
to provide justice in this case were directed at sowing doubt about the very existence
of the [girls]; at incriminating the family for their alleged collaboration with the FMLN
guerrilla, and even modifying the testimony provided to the domestic courts by María
Esperanza Franco de Orellana.”
13
Cf. U.N.,
communication of
Carrasco Vásquez
Rights Committee,
Human Rights Committee, Acuña Inostroza and others vs. Chile (717/1996),
28 July 1999, para. 6.4; U.N., Human Rights Committee, Menanteau Aceituno and
vs. Chile (746/1997), communication of 26 July 1999, para. 6.4; and U.N., Human
Pérez Vargas vs. Chile (718/1996), communication of 26 July 1999, para. 6.4.
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