Ernestina and Erlinda Serrano Cruz v. El Salvador, Case 12.132, Report No. 31/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 277 (2000).
ERNESTINA and ERLINDA SERRANO CRUZ
February 23, 2001
On February 16, 1999, the Inter-American Commission on Human Rights
(hereinafter the Inter-American Commission or the IACHR)
received a complaint filed by the Asociación Pro-Búsqueda de Niñas y
Niños Desaparecidos (Asociación Pro-Búsqueda) and the Center
for Justice and International Law (CEJIL) (jointly the petitioners),
alleging that the Republic of El Salvador (the State) bears
international responsibility for the forced disappearance of the minor sisters
Ernestina Serrano Cruz and Erlinda Serrano
Cruz and for the subsequent failure to investigate the matter and provide
reparations. The petitioners allege that the events denounced violate several
rights enshrined in the American Convention on Human Rights ("the American
Convention"): the right to life (Article 4); right to personal integrity
(Article 5); right to personal liberty (Article 7); right to a fair
trial (Article 8); right to protect the family (Article 17); right to a
name (Article 18); rights of the child (Article 19); and the right to judicial
protection, all in violation of the general duty to respect and guarantee
rights (Article 1(1)).
The complaint alleges that on June 2, 1982 the sisters Ernestina
and Erlinda Serrano Cruz, ages seven and three respectively, were captured
by members of the Salvadoran armys Atlacatl Battalion during a raid
on the municipality of San Antonio La Cruz, in the Department of Chalatenango.
The petition indicates that witnesses saw the Serrano Cruz sisters
being transported by military helicopter to the city of Chalatenango, where
they were handed over to Red Cross relief workers and then brought in a
Red Cross vehicle to an unknown location.
Eighteen years later, the girls whereabouts is still unknown.
All steps taken with the authorities to clarify the events, including
a criminal complaint and writ of habeas corpus, have been fruitless;
the petitioners therefore believe that the State is not willing to fulfill
its obligation in that regard.
State maintains that the authorities learned of the kidnapping of the minors
when their mother, María Victoria Cruz Franco, filed a report on April 30,
1993. According to witness
statements and to Mrs. Cruz Franco, if the Army removed the minors, they
should have been immediately handed over to the Red Cross for protection.
However, the judicial proceedings against members of the Atlacatl
Battalion for the alleged kidnapping (sustracción
del cuidado personal) of the minors are still open in the Court of First
Instance of Chalatenango. The State argues that the investigation is not
closed and must be continued further to determine to whom the minors were
given. The State therefore
requests that the IACHR find the case inadmissible for failure to exhaust
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 decided to notify the parties of that
decision and to continue to examine the merits of the alleged violations
of the American Convention.
PROCESSING BY THE COMMISSION
The Inter-American Commission assigned the case Nº 12.132 and on
April 14, 1999 requested information from the Salvadoran State on the pertinent
parts of the complaint. On
January 19, 2000 the petitioners requested a hearing at the 106th regular
session of the IACHR, but the Commission informed them on February 7, 2000
that this was not possible. The
earlier request for information was reiterated, and the State replied on
February 25, 2000. On March
28, 2000 the petitioners presented observations on the information provided
by the State.
IACHR transmitted those observations to the State on April 12, 2000; it
in turn submitted the corresponding information on July 11, 2000, the pertinent
parts of which were sent to the petitioners on July 25, 2000.
On August 22, 2000 the petitioners requested a hearing at the 108th
regular session; they presented their observations on August 30, 2000.
The IACHR called the parties to a hearing through a letter dated
September 8, 2000.
October 10, 2000 a hearing on the case was held at OAS headquarters, in
the framework of the 108th regular session of the IACHR, at which it received
updated information on the position of the parties regarding the admissibility
and merits of the complaint. CEJIL,
representatives of Pro Búsqueda, and Suyapa Serrano Cruz, the sister
of the victims, participated in the hearing.
POSITION OF THE PARTIES
The complaint sent to the IACHR alleges that Ernestina
and Erlinda Serrano Cruz were the victims of forced disappearance, allegedly
at the hands of members of the Salvadoran army.
Regarding the facts of the case, the petitioners maintain the following:
At the time of their detention/disappearance on June 2, 1982, the sisters Ernestina and Erlinda Serrano Cruz, ages seven and three respectively, were captured by the Salvadoran military during a raid by the Atlacatl Battalion on the municipality of San Antonio La Cruz, in the Department of Chalatenango.
dozens of other families living in rural areas victimized by military attacks,
the sisters fled their home for the mountains with their father, Mr. Dionisio
Serrano (deceased); their sister, Suyapa Serrano Cruz, age 17, and their
brother, José Enrique, age 12. The
family sought refuge in the Los Alvarenga mountains, in the jurisdiction
of Nueva Trinidad, in the Department of Chalatenango. On the third day, Mr. Serrano and his son José Enrique went
to look for water, which is why they were separated from the girls when
the soldiers detained them. The
girls older sister, Suyapa, hid in a thicket near the girls; the soldiers
heard their cries. When they
drew near, she became frightened and fled to another thicket.
The older sister has testified that after the soldiers left she returned
to the site where she had left the girls, but they were no longer there.
Witnesses say they saw the Serrano sisters being transported by military helicopter to the city of Chalatenango, where they were turned over to Red Cross relief workers and brought in a Red Cross vehicle to an unknown location. That was the last anyone knew of the girls whereabouts.
9. Regarding the investigation, the
petitioners claim that the different jurisdictions that intervened in El
Salvador have been ineffective and insufficient. The girls mother
and sister went to several hospitals, orphanages, morgues, and other places
looking for them, to no avail.
On April 30, 1993, after the end of the domestic armed conflict in El Salvador,
Mrs. María Victoria Cruz Franco filed a complaint against members of the
Atlacatl Battalion with the Court of First Instance of Chalatenango for
the kidnapping of her daughters.
The petitioners indicate that domestic proceedings began in June
1993, but were set aside on
two occasions. The first was on September 22, 1993, for the following reasons:
there has been sufficient review of this investigation and the individual(s)
who kidnapped the minors Ernestina Serrano and Erlinda Serrano have not
been identified, this investigation is closed; a note to that effect will
be made in the respective register
The case was reopened on March 14,
1996 at the instructions of the Constitutional Tribunal of the Supreme Court
of Justice of El Salvador, after a habeas corpus appeal was lodged
for the sisters. The Tribunal ordered the Court of First Instance of Chalatenango
to continue to investigate the reported events. The case was quashed a second
time on March 16, 1998 in folio Nº 126, for the following reason:
There being no further steps to take in these criminal proceedings, the case is again shelved 
On June 24, 1999, 15 months after the case was shelved, it was reopened
a second time. According to
the petitioners, this was because the IACHR had notified the Salvadoran
State of the pertinent parts of the complaint. The only step taken in nine
months by the prosecutor in charge of the case was to ask the main office
of the International Committee of the Red Cross (ICRC) in Guatemala to report
to whom the minors were given. In
that regard, the petitioners indicate that they presented concrete proposals
to redirect the investigation, which were transmitted to the prosecutor
heading up the investigation.
short, the petitioners maintain that domestic remedies available in El
Salvador have been ineffective in investigating the events, determining
the whereabouts of Ernestina and Erlinda Serrano Cruz, and providing reparations
for the consequences of the alleged violations. They argue that over seven
years have passed since the case was reported and that, in that time, the
States attitude has been exceedingly negligent and indifferent, even
though these are public criminal proceedings. The petitioners therefore
feel that the investigation was predestined to fail.
14. The Salvadoran
State is reproducing the information provided to the Ministry of Foreign
Affairs by the Office of the Public Prosecutor of the Republic and maintains
that those documents prove that the investigation is ongoing and that domestic
remedies have not been exhausted, in conformity with generally-accepted
principles of international law. The State adds that case Nº 112/93 is being
heard in the Court of First Instance of Chalatenango against members of
the Atlacatl Battalion, for the alleged kidnapping of Ernestina and Erlinda
Serrano Cruz. Finally, it states
that the case presented to the Inter-American Commission is not closed and
that the investigation must continue, since the whereabouts of other minors
has been determined in similar cases.
15. The Salvadoran
State concludes the following:
a. It learned of the kidnapping of the minors when their mother reported it on April 30, 1993.
b. That according to witnesses and to the mothers statement, if the army did take the minors, they were immediately turned over to the Red Cross for protection.
There are still steps to be taken in the judicial process, such as
summoning witnesses and the President of the Damas
Voluntarias de la Cruz Roja (Red Cross Lady Volunteers) and inspecting
the organizations records.
16. The State
maintains that in similar cases, the whereabouts of minors has been determined,
with the valuable assistance of the Asociación Pro-Búsqueda, whose
contact in the Prosecutors Office is Ms. Margarita Estrada Vásquez.
the Salvadoran State maintains that the investigation is ongoing and domestic
remedies have not been exhausted, in keeping with generally-accepted principles
of international law. It therefore requests that the IACHR find the case
ratione personae, ratione materiae, ratione temporis, and ratione
loci of the Inter-American Commission
This case alleges violations of rights recognized and enshrined in
the American Convention that would have occurred within the territorial
jurisdiction of El Salvador, at a time when the obligation to observe and
guarantee all rights established in that instrument was in effect for that State.
The IACHR is therefore competent ratione
personae, ratione materiae, ratione temporis, and ratione
loci to hear the merits of the complaint.
Exhaustion of domestic remedies and filing deadline
The State alleges that this case is inadmissible because domestic
remedies in El Salvador have not been exhausted. To that end, it cites the
investigations in criminal case Nº 112/93, the appointment of a Special
Prosecutor for the investigation, and its contact with the Asociación
The petitioners, in turn, claim that although domestic remedies are
ineffective, they have nonetheless pursued all possible means to determine
the whereabouts of Ernestina and Erlinda Serrano.
The petitioners stress that nearly eight years have passed since
the case was reported and that Salvadoran authorities have done absolutely
nothing to guarantee an effective investigation or determine who the perpetrators
were, punish them and provide reparations to the victims or their family.
Although the case remains open, the Salvadoran authorities have not conducted
an exhaustive investigation to determine the sisters whereabouts.
As alleged by the petitioners, the inactive role of the Prosecutors
Office shows that the domestic remedies available are merely a formality.
21. The information
provided to the Commission by both parties in this case agrees thatat
the request of the victims mothera criminal investigation began
on April 30, 1993 and that, after being closed twice, it was reopened on
June 24, 1999. Furthermore, on November 13, 1995 Mrs. María Cruz Franco
filed a habeas corpus appeal for her daughters, which was suspended with
In this case, members of the Salvadoran Army are allegedly responsible
for the forced disappearance of two minors during the internal armed conflict
in El Salvador. That era was
characterized by systematic human rights violations and impunity, given
the inefficacy of the Salvadoran judicial system.
Given the specific circumstances in this case and the aforementioned
context, the Commission feels that the requirement for the timely presentation
of the petition in question was met.
As of the date this report was adopted, domestic remedies had not
operated with the effectiveness required to investigate a complaint of forced
disappearancea category of serious human rights violations.
In fact, nearly eight years have passed since the first complaint
was lodged with the authorities in El Salvador, with no definitive finding
of how the events transpired.
Based on the foregoing, the Inter-American Commission will apply
to this case the exception set forth in part two of Article 46(2)(c) of
the American Convention. As
a result, the requirements set forth in the Convention on the exhaustion
of domestic remedies and the six-month deadline for lodging a petition are
Finally, it should be noted that the invocation of the exceptions
to the rule on exhaustion of domestic remedies set forth in the American
Convention is closely linked to the finding of potential violations of rights
enshrined in the Convention, such as effective judicial protection. Article 46(2) of the American Convention is independent of
other substantive provisions of that instrument.
The determination of whether or not the exceptions to the exhaustion
of domestic remedies are applicable to this case must be made beforehand,
separate from the analysis of the merits.
This is because the analysis of the exceptions uses different standards
of assessment from those used to determine violations of Articles 8 and
25 of the American Convention.
b. Duplication of proceedings and
The Salvadoran State did not oppose the exceptions provided for in
Article 46(1)(d) and Article 47(d) of the American Convention, nor does
such opposition emerge from the information in the case file.
Characterization of the alleged events
IACHR finds that the alleged events, if true, would constitute violations
of rights enshrined in the American Convention.
The Inter-American Commission concludes that it is competent to hear
this case and that the petition is admissible, pursuant to Articles 46 and
47 of the American Convention.
on the foregoing de facto and
de jure arguments and without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
1. To declare this case admissible for the alleged violation of rights enshrined in Articles 4, 5, 7, 8, 17, 18, 19 and 25 of the American Convention.
To notify the parties of this decision.
To continue to examine the merits of the case.
To publish this decision and include it in its Annual Report to the
OAS General Assembly.
Done and signed by the Inter-American Commission on Human Rights in Washington, D.C., on February 23, 2001. (Signed): Claudio Grossman, Chairman; Juan E. Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Commissioners: Robert K. Goldman, Peter Laurie, Julio Prado Vallejo, and Hélio Bicudo.
Letter from the petitioners dated February 16, 1999, pages 1 and 2.
Letter from the petitioners dated March 28, 2000, page 1.
 The Salvadoran State deposited the instrument of ratification
of the American Convention on June 23, 1978.
In its annual reports published during the armed conflict, the IACHR
issued statements on several occasions about the violence and lack of
effective judicial protection of rights.
The right to justice has been profoundly affected
by the state of emergency that reigns in El Salvador, as indicated earlier.
Here it is worth reiterating the Commissions remarks from its
last Annual Report: the American Convention does not authorize the suspension
of judicial guarantees that are essential for protecting basic rights,
particularly not for prolonged periods, as has been the case in El Salvador.
In addition, there is a lack of judicial independence and authority;
members of the judiciary have themselves been the target of criminal
The marked limitations on judicial guarantees,
as stated previously, have left many proceedings unresolved, causing
the population to lose confidence in the judicial system.
IACHR, Annual Report 1983-1984,
Chapter IV Human Rights Situation in Several States: El Salvador,