October 16, 2002, Ms. María Contreras filed a writ of habeas corpus before the Constitutional
Chamber of the Supreme Court of Justice.
8. It is indicated that it was not possible to file a complaint sooner since, due to the armed
conflict, there was fear that any person who went to the military bases would be associated
with the guerrillas and suffer reprisals. In this respect, the Truth Commission for El Salvador
noted that many human rights violations were committed against the civilian population
merely to “drain the water from the fish” because they were believed to be guerrilla
collaborators, especially in the first years of the campaign. In this context, the petitioners
allege that there was no trust in the authorities, especially when human rights violations were
perpetrated by the Salvadoran army.
9. The petitioners note that the domestic criminal proceeding did not begin until the resolution
of Constitutional Chamber of the Supreme Court of Justice of February 17, 2003 (reported
March 3, 2003), in which it is recognized that there was a violation of the Contreras siblings’
constitutional right to liberty, and the Office of the Attorney General was urged to “take the
necessary measures pursuant to its constitutional powers, so as to bring to completion the
establishment of the conditions of those benefitted, Serapio Cristián, Julia Inés, and Herminia
Gregoria, all of the last name Contreras.” 2
10. The petitioners allege that “the Office of the Attorney General has not put the necessary
effort into investigating the case, since according to what is stated in the answer brief [in
response to the petition], there are records that would allow one to obtain information that
could lead to a determination of the whereabouts of the Contreras siblings....” 3 The petitioners
also argue that “...though it be argued [by the State in its brief answering the petition] that
the proceeding is still open, it has been one year since the ruling on the writ of habeas corpus,
and we do not know that any results have been obtained in terms of locating the minors, nor
has the respective summons been presented to the court with jurisdiction”
11. In summary, the petitioners argue that initially and until the creation of the Truth
Commission, there was no possibility in El Salvador for the petitioners to gain access to any
domestic remedy. Since then, the petitioners argue that the domestic remedies available in El
Salvador have been ineffective when it comes to investigating the facts, determining the
whereabouts of Serapio Cristián, Julia Inés and Herminia Gregoria, and making reparation for
the consequences of the violations alleged. They argue in this regard that more than 12 years
have elapsed since the case was first brought forth, during which the attitude of the State has
been extremely negligent and indifferent in the procedure, despite which the facts make out a
criminal action of the type that must be prosecuted at the initiative of the authorities (crime of
public action). Accordingly, the petitioners are of the view that the investigation has been
doomed to failure from the outset. The petitioners request, therefore, that the exception to the
prior exhaustion of domestic remedies rule, provided for at Article 46(2)(b) of the Convention,
be applied in this case.
12. In relation to the applicable provisions, the petitioners argue that the Salvadoran State
ratified the American Convention on June 23, 1978, and therefore is responsible for the
violations of the Convention to the detriment of the Contreras siblings.
B.
The State
13. The Salvadoran State indicates that the international law applicable during the armed
conflict is international humanitarian law, specifically common Article 3 of the four Geneva
Conventions, supplemented by Protocol II. It establishes as follows:
It is true that initially, international human rights law is to be carried out by the governments,
but in certain armed conflicts, by the norms mentioned previously, international humanitarian
2
3
Order of the Constitutional Chamber of the Supreme Court of El Salvador, February 17, 2003.
Brief of observations by the petitioners on the State’s response, April 22, 2004.
3