Practice Relating to Rule 117. Accounting for Missing Persons
Section A. Search for missing persons
El Salvador’s Decree Creating the Commission for Tracing Missing Children (2004) establishes
… the Inter-institutional Commission for Tracing Children who Disappeared as a Result of the Armed Conflict in El Salvador … which has the objective to collaborate with the public institutions involved with or in charge of the protection of children in the search for the children who have become involuntarily separated from their families, and to further the reunification with their close relatives based on the best interests of the child.
El Salvador’s Decree Creating the National Commission for Tracing Missing Children (2010) states:
Art. 1.- The National Commission for Tracing Girls and Boys Missing during the Internal Armed Conflict, which will be referred to as “Commission” or “Tracing Commission” hereinafter.
Art. 2.- The Commission shall have as its main objective to investigate and determine the whereabouts and condition of girls and boys that went missing during the internal armed conflict in El Salvador … .
Art. 3.- The Commission shall have the mandate to:
a) Investigate of its own accord or upon request by any person and to receive information on the disappearances of girls and boys during the internal armed conflict;
f) Promote coordination with public institutions and the participation of private, national … organizations, to implement actions that will contribute to determining the whereabouts of the missing girls and boys.
The Decree also states: “The Tracing Commission will carry out its activities in the whole national territory”.
The Decree further states: “The Commission will function for a duration of two years from the entry into force of this Decree [26 April 2010].”
In 2002, in its second periodic report to the Committee on the Rights of the Child, El Salvador stated: “By 1996 a total of 323 children had been recorded as having disappeared as a result of the armed conflict.”
In 2006, in its written replies to the issues raised by the Committee on the Rights of the Child with regard to El Salvador’s initial report under the Optional Protocol on the Involvement of Children in Armed Conflict, El Salvador stated:
Information on measures taken to implement the 2005 decision of the Inter-American Court of Human Rights in the case of the Serrano Cruz sisters vs. El Salvador, including but not limited to the establishment of a Commission to determine the whereabouts of children who disappeared during the armed conflict.
The Inter-American Court of Human Rights ruled that the State could comply with the corrective measure it ordered through the Inter-institutional Commission to Search for Children who Disappeared owing to Armed Conflict in El Salvador, provided that that body met the criteria established, or could establish a new commission that met those conditions. Realizing that the President’s brainchild met the requirements, the State decided to pursue the first option.
It therefore began taking administrative steps with the appropriate bodies to provide the Commission with space to work in and funding that had not been included in the State budget so that it could carry out its assigned tasks.
In 2007, in its second periodic report to the Committee against Torture, El Salvador stated:
The Ministry of Foreign Affairs established a Human Rights Department within the Directorate-General of Legal Affairs, and set up the Inter-Agency Commission on the search for children who disappeared during the armed conflict in El Salvador.
[footnote in original omitted]
In 2008, in its third and fourth periodic reports to the Committee on the Rights of the Child, El Salvador stated:
With regards to missing children, the State set up an Inter-Institutional Commission to search for children who disappeared owing to armed conflict in El Salvador, through Executive Order No 45 of 5 October 2004. This [Commission] began work on 13 June 2005, with the aim of cooperating with public institutions with involvement in or responsibility for child protection in the quest for children who were involuntarily separated from their families during that period in El Salvador. … In accordance with Article 4 of the Executive Order mentioned above, the Inter-Institutional Search Commission can also call on the cooperation and backup of other public institutions to help achieve its goal, … and also private institutions set up to achieve the aims of this Commission.
The report also states:
383. As far as field activities are concerned … [a] logistical plan has been developed for collecting data, including the processing of special files for obtaining specific data, the planning of field trips and meetings when experiences gained as a result of the various forms of fieldwork are compared to establish progress in cases. … The fieldwork includes interviews with the civilian population and also with serving and retired military personnel, with state officials, with officials of national … institutions, such as the Salvadoran Red Cross … , from which valuable and important information has been obtained.
384. The National Civil Registry (RNPN) offers significant help in resolving cases assigned to it because it provides data on people related to case investigations, which makes it easier to locate them so that the relevant interviews can be carried out. As far as documentary investigations are concerned, visits have been carried out, obtaining access to the archives of various state institutions and mass media, where valuable information has been found and even photographs in some cases. Special emphasis must be placed on the conscientious and effective work being carried out by the Inter-Institutional Commission to search for children who disappeared owing to armed conflict. …
385. … Various search requests have been received for cases relating to the armed conflict …
386. The achievements of the Inter-Institutional Commission to search for children who disappeared owing to armed conflict since it first started work may be measured by its initial result of 46 cases resolved, which have led to 22 reunions taking place.
[footnote in original omitted]
In 2009, in its written replies to the Committee against Torture concerning its second periodic report, El Salvador stated:
a) what have been the measures adopted by the State to find persons disappeared, including children, during the armed conflict of 1980 to 1992;
b) If a national commission, with sufficient resources and functions, has been instituted;
7. With regard to subparagraphs a) and b), concerning girls and boys disappeared during the internal armed conflict, the Salvadoran State created through Executive Decree No. 45 of 5 October 2004, published in Official Journal No. 45, Volume No. 365 of 6 October 2004, the Inter-institutional Commission for the Tracing of Boys and Girls Missing as a Result of the Armed Conflict in El Salvador, which initiated its work in September 2005 … .
8. The period of validity of this Decree and of the extension of the [Commission’s] mandate terminated on 31 May 2009, having resolved to the date 70 cases out of 212 total search requests, 51 of which were directly related to the armed conflict … ; having achieved, in addition, 29 family reunions despite not having the necessary financial resources to carry out the work for which it was created and thus not accomplishing all that was required by the Inter-American Court of Human Rights in the Case of the Serrano Cruz Sisters versus El Salvador.
9. Starting on 1 June 2009, El Salvador initiated a new phase in its history … ; and it is in this context that the Commission finds itself in a process of restructuring and redefinition that have led to a temporary suspension of the tasks entrusted to it, which will be taken up once again under the new vision of the Salvadoran State.
In 2009, in its written replies to the Committee on the Rights of the Child concerning its third and fourth periodic reports, El Salvador stated in regard to the progress made and the current situation of the search for children who disappeared during the internal armed conflict:
58. The so-called “Inter-institutional Commission to search for children who disappeared during the Salvadoran armed conflict” operated for four years until ceasing to exist on 31 May 2009.
59. Although the Inter-institutional Commission recorded some achievements, El Salvador recognizes that the Commission did not meet the standards required by the Inter-American Court of Human Rights in its judgement in the case of the sisters Ernestina and Erlinda Serrano Cruz, particularly with respect to the need for greater investigative resources in the search for children, guarantees of the independence of the Commission’s members, and representation of the victims in the Commission.
60. The Association for the Search for Disappeared Children … petitioned the Legislative Assembly of El Salvador on a number of occasions for the enactment of a legislative decree establishing a national search commission. However, these petitions were not approved during the Assembly’s various proceedings.
61. Accordingly, El Salvador, through its new Executive, will promote the establishment by executive decree of a national search commission, respecting the standards for such a commission required by the Inter-American Court of Human Rights. The Minister for Foreign Affairs has informed the Association for the Search for Disappeared Children and the Inter-American Commission on Human Rights of this decision – the latter, at a hearing on five cases of disappeared children held in Washington, D.C. on 6 November 2009. The Ministry of Foreign Affairs has formulated a draft executive decree for the establishment of a national search commission, which is currently in the review phase and can be expected to be adopted in the reasonably near future.
62. In addition to the above decision, El Salvador, through its Minister for Foreign Affairs, has established an official dialogue with the Association for the Search for Disappeared Children, in furtherance of its obligations to comply with the judgement in the case of the Serrano Cruz sisters and with the Court’s demands in other cases of disappeared children. …
63. At the previously mentioned hearing of 6 November 2009 before the Inter-American Commission on Human Rights, El Salvador radically altered its former positions regarding the problem of children who disappeared during the armed conflict. It recognized the existence of a pattern of child disappearances during that period, … and promised to endeavour to discharge in good faith its international human rights obligations in this matter.
65. These changes hold out the prospect of a historic breakthrough in the search for disappeared children.
In 2010, in its written replies to the Human Rights Committee concerning its sixth periodic report, El Salvador stated:
60. During the period under examination, the State has not launched a comprehensive plan for the search of persons disappeared in the context of the internal armed conflict.
61. Despite the above, in the context of the current Government of El Salvador (which assumed its functions on 1 June 2009), the State has recognized that practices such as the enforced disappearance of persons took place in the context of the internal armed conflict, causing profound suffering to the affected families. …
62. … [I]n a public act of reparation … , the President of El Salvador signed an Executive Decree for the creation of the “National Commission for Tracing Boys and Girls Missing during the internal armed conflict” in accordance with the standards required by the Inter-American Court of Human Rights … .
63. Furthermore, there has recently been important case law of the Constitutional Division of the Supreme Court of Justice, which in Habeas Corpus
proceedings have extended the right to judicial protection of victims of enforced disappearance and transferred different cases to the Office of the Public Prosecutor for the investigation of these. In this respect, the Constitutional Division has held that a judgment against the defendant … [in habeas corpus
proceedings] cannot have an immediate restorative effect. … [T]hus, the duty to investigate and establish the material situation of disappeared persons would fall to the Office of the Public Prosecutor, without the need for the act to have been previously classified as an offence.
[footnote in original omitted]
In its written replies, El Salvador further stated:
66. The Inter-institutional Commission for the Tracing of Boys and Girls Missing as a Result of the Armed Conflict in El Salvador resolved 70 cases out of the 212 registered by it while it was in force (from October 2004 to 31 May 2009). Among the resolved cases, 51 were directly related to the armed conflict, … which took place between …  and 1992. Nevertheless, the Inter-American Court of Human Rights, in the resolutions on supervision of the implementation of the judgement in the case of the Ernestina and Erlinda Serrano Cruz sisters, kept open the follow-up item, which ordered the creation and functioning of the above-mentioned Commission, as it considered that it did not meet the standards of independence, resources and legal capacity necessary to establish the whereabouts of victims of disappearances.
67. As a result, on 18 January 2010 Executive Decree No. 5, which gave legal life to the current “National Commission for Tracing Boys and Girls Missing during the internal armed conflict”, was published in the Official Journal. The mandate of this Commission is to establish the whereabouts of boys and girls victims of disappearance during the internal armed conflict, previously taking into account the standards mentioned by the Inter-American Court of Human Rights for its functioning. This Commission, … which will be instituted in July 2010, will have within its functions the investigation of the disappearance of boys and girls during the internal armed conflict, … and giving momentum to processes for the search of disappeared boys and girls.