On September 23, 1993, the Director of the Legal Protection Office
(Oficina de Tutela Legal) of the Archdiocese of San Salvador, María Julia Hernández,
and Tiberio Arnoldo Romero y Galdámez, the victim's brother (hereinafter
"the petitioners"), presented a complaint to the Inter-American
Commission on Human Rights (hereinafter "the Commission" or the
"IACHR") alleging that on March 24, 1980, agents of the Republic of El
Salvador (hereinafter "the Salvadoran State," "the State,"
or "El Salvador") who were operating as part of death squads,
extrajudicially executed Monsignor Oscar Arnulfo Romero y Galdámez,
Metropolitan Archbishop of San Salvador (hereinafter "Monsignor
Romero" or "the Archbishop of San Salvador").
The petitioners allege that the State violated the victim's rights to
life, to a fair trial, and to judicial protection, as well as the obligation to
respect and guarantee the human rights enshrined in the American Convention on
Human Rights (hereinafter the "American Convention").
The State does not call into question the admissibility of the petition
nor does it controvert the facts. It
merely justifies the release of the persons implicated in the extrajudicial
execution pursuant to the Law on General Amnesty for the Consolidation of Peace
(hereinafter "the General Amnesty Law") as a "measure aimed at
ensuring the existence of a new democratic State at peace as the only way to
safeguard human rights."
After analyzing the petition, the Commission concludes in this report
that the State is responsible for the violation of the following rights
enshrined in the Convention: the
right to life (Article 4); to a fair trial and effective judicial protection
(Articles 8(1) and 25); and to know the truth of what has happened.
In addition, the IACHR concludes that the State did not abide by its
obligation to respect the rights recognized in the American Convention and to
guarantee their free and full exercise, pursuant to Article 1(1) of the
Convention, nor its obligation to refrain from adopting provisions of domestic
law that hamper the enjoyment of the rights set forth therein, pursuant to its
Article 2. Consequently, the
Commission recommends that the State carry out a complete, impartial, and
effective judicial investigation, expeditiously, so as to identify, try, and
punish all the perpetrators, both the direct perpetrators and the planners of
the violations established, notwithstanding the amnesty decreed; that it make
reparation for all the consequences of the violations set forth, including the
payment of fair compensation; and that it bring its domestic legislation into
line with the American Convention, so as to render null and void the General
Amnesty Law approved by Decree Nº 486 of 1993.
PROCESSING BEFORE THE COMMISSION
On May 15, 1995, the IACHR opened the case, assigning it number 11.481,
and communicated the pertinent parts of the petition to the State, asking that
it submit observations within 90 days. The
State did not provide the information requested within the time period given.
On February 13, 1996, the Commission reiterated its request with the
warning that, if the information requested was not received within 30 days, it
would consider whether it would be pertinent to apply the presumption provided
for in Article 42 of its Regulations. On
April 2, 1997, the Commission reiterated for the third time its request for
information, and the above-noted warning. On
August 6, 1997, the Commission reiterated its request for the fourth time, and
placed itself at the disposal of the parties to reach a friendly settlement,
under the terms of Article 48(1)(f) of the American Convention and Article 45(1)
of the Commission's Regulations.
On November 25, 1997, the petitioners submitted their answer to the offer
to seek a friendly settlement. They
stated that due to the nature and gravity of the violations alleged, they would
only agree to such a settlement if the Salvadoran State fully accepted its
responsibility for the facts denounced and would commit to immediately taking
legal and other measures, as necessary, to investigate and punish the persons
responsible for this crime. On
December 1, 1997, the Commission transmitted the pertinent parts of this
response to the State, and gave it 30 days to submit its observations.
On February 11, 1998, the State submitted its observations on the initial
petition, without referring to the proposal for friendly settlement, and asked
the Commission to archive the case. On
October 6, 1998, the petitioners asked that the Center for Justice and
International Law (CEJIL, hereinafter included with "the petitioners")
be included as co-petitioners. On
December 14, 1998, the Commission transmitted the State's answer to the
On March 31, 1999, the petitioners submitted their observations to the
Salvadoran State's answer. The
pertinent parts of that communication were transmitted to the State on April 14,
1999; to date it has yet to send its comments or observations to the IACHR.
On October 4, 1999, the Commission held a hearing in this case, during
its 104 Sessions. Report Nº
138/99, adopted under Article 50 of the American Convention, was forwarded to
the State on January 4, 2000. The
State did not present information regarding compliance with the recommendations
of that report, but it requested an extension of two days before the deadline
expired. The IACHR decided not to
grant the extension, on the grounds set forth in Chapter VI infra, and proceeded to adopt the instant report pursuant to Article
51 of the American Convention.
POSITIONS OF THE PARTIES
The petitioners allege that Monsignor Romero was extrajudicially executed
by a death squad made up of State agents. They
also allege that to date justice has not been done in his case, in respect of
the violations of domestic law and the international commitments contracted by
El Salvador. The petitioners
express, inter alia:
assassination of Monsignor Romero shook the conscience of the world, because of
the very fundamental role which, as a Pastor of the Catholic Church, he was
playing in seeking a solution to the grave problems besetting El Salvador at the
time of his assassination, and, in addition, "for being the most important
human rights defender El Salvador has had in its history."
Monsignor Romero had stood out in his years as Archbishop of San
Salvador, as the leading voice of public denunciation and to contain the
repression striking out at the country at that time, carried out by the death
squads in coordination with state agents, members of the army, etc.
As that was precisely the role that Monsignor played, he came to be
subject to serious persecution by the military forces and the authorities, which
was also translated into attacks on his life by state agents in coordination
with death squads, which operated with the acquiescence and complicity and
collaboration of the State at that time.
The petitioners note that the Fourth Criminal Judge of San Salvador,
Atilio Ramírez Amaya, initiated the corresponding proceedings (Proceeding Nº
134-80), on March 24, 1980, the date of the assassination.
They allege that both the investigation into the facts and the judicial
proceedings were characterized by a great many irregularities and their total
ineffectiveness. They argue that
the investigation went in directions which, it was known beforehand, would lead
nowhere in terms of identifying the persons responsible, and that the State
failed to pursue the criminal proceedings diligently.
The petitioners also argue that two persons involved in the proceedings
were victims of acts of harassment and terror:
Judge Ramírez Amaya, and a witness, Mr. Napoleón González, who was
alleged to have entered the chapel moments after the attack on the Archbishop of
San Salvador, and to have witnessed the flight of the assassins. Judge Amaya was
the victim of an attack, by firearms, on his residence, after which he decided
to go into exile in the Republic of Costa Rica for his personal security. Mr.
Napoleón González was allegedly kidnapped; his whereabouts remain unknown to
this day. According to the
petitioners, he was the victim of a forced disappearance.
The petitioners allege the following irregularities, among others:
The Police went to the Chapel of the Hospital de la Divina Providencia to
inspect the crime scene and to take the first photographs only nine days after
the events. In addition, the police
failed to collect material indicia of the crime at the place.
Even though the homicide occurred during a mass, in the presence of
hundreds of persons, the Police did not make any effort to identify witnesses
and obtain their statements.
The autopsy confirms that the projectile that caused the death was
.22-caliber bullet, yet did not reach more precise conclusions.
Nonetheless, this determination was never added to the case file. Nor
were the X-rays of the thorax ever included in the case file.
Finally, the Director General of the National Police stated that it was
impossible to determine the caliber.
They also allege that on May 7, 1980, less than two months after the
assassination, a search was carried out at a farm where 12 members of the
military and 12 civilians were arrested; they were accused of conspiracy to
overthrow the government by a coup d'etat. Among
those detained was Major Roberto D'Aubuisson.
During that raid documentation was seized that apparently was related to
the execution of Monsignor Romero which, however, was not forwarded to the Judge
in charge of the investigation. They
argue that Major D'Aubuisson, supported by the Armed Forces, led a publicity
campaign to accuse the guerrillas of homicide, so as to divert attention from
The petitioners indicate that when several years had gone by without any
advances in the investigation, the judicial case file was archived on December
12, 1984; the case was reactivated the next year.
In January 1986, almost six years after the execution, President José
Napoleón Duarte appointed a Commission to Investigate Criminal Acts
(hereinafter "the Investigative Commission") to give impetus to the
inquiry. At this stage, important elements were introduced into the
proceedings: the so-called
"Saravia Diary," which was seized during the search of the San Luis
farm in 1980, and which is evidence of the death squad operations; and the
testimony of Mr. Amado Antonio Garay Reyes, who was Captain Alvaro Saravia's
driver at the time of the extrajudicial execution.
In a statement made on November 10, 1987, Garay noted that he had
transported the direct perpetrator of the assassination of the Archbishop of San
Salvador and revealed the details of his execution.
In addition, he identified Héctor Antonio Regalado as the direct
The petitioners note that on November 24, 1987, the provisional detention
of Alvaro Saravia was ordered when he had already left the country and was
residing in the United States. Héctor
Antonio Regalado was not subpoenaed until four years after the fact, when it was
materially impossible to guarantee his appearance.
Nonetheless, this order was voided by the Supreme Court of Justice of El
Salvador on the grounds that Garay's testimony did not merit full faith given
the time elapsed since the underlying events.
In the context of the signing of the Peace Accords, the United Nations
(hereinafter "the UN") appointed a Commission on the Truth for El
Salvador (hereinafter "the Truth Commission") that investigated
several human rights violations, including the assassination of Monsignor
Romero. In its final report
(hereinafter “the Truth Commission Report”), submitted March 15, 1993, to
the Secretary General of the United Nations and to the public, the Truth
Commission identified the planners of and accomplices to the execution of the
Archbishop of San Salvador.
Five days after the report was published, on March 20, 1993, the Congress
of El Salvador promulgated the General Amnesty Law by Decree Nº 486.
The petitioners allege that this law was aimed at impeding the judicial
investigation of the crimes revealed by the Truth Commission.
On March 31, 1993, Judge Luis Antonio Villeda Figueroa dismissed the case
against Alvaro Saravia, with prejudice, pursuant to the General Amnesty Law.
The judge did not rule on Roberto D'Aubuisson, arguing that he was never
an accused, and that his death had extinguished his criminal liability.
According to the petitioners, this impeded a determination of the truth
as well as any punishment for those responsible.
The last procedural step in the execution of Monsignor Romero was closed
In view of these facts, the petitioners allege that the State is
responsible for violations of Articles 4, 8, 25, 1(1), and 2 of the American
Convention, and they ask the IACHR to so declare, and to order reparations for
the damage caused.
B. The State
The State did not controvert the factual or legal arguments of the
petitioners. Instead, it merely
requested the IACHR to archive the case, considering that the General Amnesty
Law adopted after the publication of the Truth Commission Report was aimed at
ensuring peace and preserving human rights.
In particular, the State indicated that:
historical signing of the Peace Agreements on January 16, 1992, put an end to
the fratricidal conflict that took the lives of thousands of victims and
affected and polarized Salvadoran society, thereby establishing the bases of
peace, so as to seek the long-sought national reconciliation and reunion of the
was achieved in El Salvador with endeavor and great sacrifice, and in the viable
and effective course for trying to secure it, improve the human rights
situation, and build democracy, necessary measures were agreed upon based on the
new national consensus and the political will of those who signed the Peace
Accords, which were aimed at stabilizing the conditions of the Nation's spirit,
with a view to the much-sought reconciliation.
due course, a series of violent events were revealed that had taken place
throughout the bloody years of the armed conflict, and it was part of a
mechanism agreed upon to highlight the major events of the conflict, and for the
purpose of ensuring that history not repeat itself in El Salvador, by making
known what had happened.
mechanism, unprecedented in El Salvador, and with United Nations verification,
reviewed a part of the violence of the armed conflict, and made clear the need
to close a tragic chapter of our history and in so doing avoid opening wounds
just recently beginning to heal, or, in the worst of cases, forestall a chain of
acts of revenge that could have led to a new polarization of Salvadoran society.
Truth Commission Report represented a very important and necessary step in the
peace process in El Salvador. In
this regard, the Procuraduría para la Defensa de los Derechos Humanos (Office
of the Human Rights Ombudsman), an institution created by the Peace Accords, in
a public message of March 27, 1993, concluded with a "call to the
Government of the Republic, to the different political sectors, the Armed
Forces, and the institutions of the Republic, so that the conclusions and
recommendations of the Truth Commission Report may be processed from an ethical
and historical perspective, as a necessary option for affirming peace, as an
essential step towards effective reconciliation and as part of a common search
for a democratic society," adding that "the measures adopted in
relation to its provisions should preserve one of the most important
accomplishments of peace processes: the
vocation for and commitment to conciliation, national consensus-building and
engagement of all the political and social forces."
El Salvador the truth was made known, it was not covered up, and the measures
taken afterwards were aimed at ensuring the existence of a democratic state at
peace as the only way to preserve human rights. The "Law on General Amnesty for the Consolidation of
Peace" had precisely these aims.
of the success of the effort in El Salvador on behalf of national reconciliation
is plain to see.
IV. ANALYSIS ON
JURISDICTION AND ADMISSIBILITY
The IACHR has jurisdiction to examine the petition submitted by the
petitioners, who have standing to appear, pursuant to Article 44 of the American
Convention, in their capacity as natural persons and non-governmental
organizations. The facts alleged
occurred under the jurisdiction of El Salvador when the obligation to respect
and guarantee the rights established in the American Convention was already in
force for El Salvador. The
Commission shall now determine whether the instant case is admissible in light
of the requirements established at Articles 46 and 47 of the American
Exhaustion of domestic remedies and time requirement for submission
The IACHR notes that on March 31, 1993, Judge Luis Antonio Villeda
Figueroa applied the General Amnesty Law for the purpose of dismissing, with
prejudice, charges against Captain Alvaro Saravia, the only one of the accused
against whom an order for provisional detention had been issued.
That judicial decision went for consultation to the First Criminal
Chamber of the First Section, Central; pursuant to its judgment of May 13, 1993,
this court declared its judgment res
judicata as the legal time had lapsed without the Office of the Public
Prosecutor having pursued any remedy.
Furthermore, on May 20, 1993, the Supreme Court of Justice of El Salvador
declared inadmissible the motion of unconstitutionality, which was filed to
challenge the General Amnesty Law.
The Inter-American Court of Human Rights has noted that:
rule of prior exhaustion of domestic remedies allows the State to resolve the
problem under its internal law before being confronted with an international
proceeding. This is particularly true in the international jurisdiction of human
rights, because the latter reinforces or complements the domestic jurisdiction
(American Convention, Preamble).
Generally accepted rules of international law require both that the
domestic remedies exist formally and that they be suitable for addressing the
infringement of a legal right and effective, i.e. capable of producing the
result for which they were designed.
The international protection of human rights referred to at Article 46(1)
of the American Convention is grounded "on the need to protect the victim
from the arbitrary exercise of governmental authority."
Therefore, the requirement of exhaustion of domestic judicial remedies
cannot be reduced to mechanically going through formal legal procedures; this
implies that in each case one must analyze the reasonable possibility of
obtaining the remedy sought.
The above-noted judicial decrees dismissing charges, adopted under the
General Amnesty Law, have had the effect of deciding the instant case in the
domestic jurisdiction. Once this
domestic means of settling the matter posed is exhausted in the internal
jurisdiction of El Salvador, the mechanisms of international protection
established in the American Convention are triggered.
Furthermore, the State has not called into question whether the
requirement of exhausting domestic remedies provided for in Article 46(1)(a) of
the American Convention has been met, nor the six-month rule of Article
46(1)(b). The Inter-American Court
has stated that an objection on grounds of failure to exhaust domestic remedies
must be raised expressly in the initial stages of procedure.
The IACHR considers that the State has tacitly waived its right to raise
these objections and that, therefore, the petition meets the
requirements established in Article 46(1)(a) and 46(1(b).
Duplication of procedures
The Commission considers that the record does not suggest that the issue
raised in this case is pending before any other international forum.
Therefore, it is satisfied that the requirement established by Article
46(1)(c) of the American Convention has been met.
Characterization of the facts alleged
The petitioners' claims refer to facts which, if true, could constitute
violations of Articles 1(1), 2, 4, 8(1), and 25 of the American Convention.
Accordingly, the Commission considers that the conditions set forth in
Article 47(b) of the American Convention are satisfied.
Conclusions on jurisdiction and admissibility
Based on the considerations of fact and law set forth, the Commission
concludes that it has jurisdiction over this case, and that the requirements of
admissibility set forth at Articles 46 and 47 of the American Convention have
ANALYSIS ON THE MERITS
Before analyzing the merits of the complaint, reference must be made to
the context of violence El Salvador was experiencing at the time of the events,
the role Monsignor Romero played during that period, and the impact of his
death. The following considerations
are based essentially on the conclusions of the Truth Commission Report.
The situation in El Salvador at the time of the events
The period when Monsignor Romero was extrajudicially executed was marked
in El Salvador by a serious internal armed conflict.
During this conflict, State agents committed grave violations of the
human rights of innocent civilians and non-combatants.
The Truth Commission investigated the acts of violence that occurred in
El Salvador from January 1980 to July 1991.
In effect, it divided its study into four periods: 1980-1983; 1983-1987;
1987-1989; and 1989-1991. The first
period was characterized by the Truth Commission as the period in which the
violence was institutionalized.
Early 1980, when the Archbishop of San Salvador was extrajudicially
executed, was described as a period when the political conflict between
civilians and conservative military sectors sharpened, in the context of growing
effervescence and social mobilization.
The Truth Commission Report describes the period in the following terms:
was a fire which swept over the fields of El Salvador: it burst into villages,
cut off roads and destroyed highways and bridges, energy sources and
transmission lines; it reached the cities and entered families, sacred areas and
educational centres; it struck at justice and filled the public administration
with victims; and it singled out as an enemy anyone who was not on the list of
friends. Violence turned everything
to death and destruction, for such is the senselessness of that breach of the
calm plenitude which accompanies the rule of law, the essential nature of
violence being suddenly or gradually to alter the certainty which the law
nurtures in human beings when this change does not take place through the normal
mechanisms of the rule of law. The
victims were Salvadorians and foreigners of all backgrounds and all social and
economic classes, for in its blind cruelty violence leaves everyone equally
main characteristics of this period were that violence became systematic and
terror and distrust reigned among the civilian population....
3 January 1980, the three civilian members of the Junta resigned, along with 10
of the 11 cabinet ministers. The
Junta was again in crisis…The process of political polarization triggered an
unprecedented increase in death squad activities.
6 February, United States Ambassador Frank Devine informed the State Department
that ...the extreme right was arming itself and preparing for a confrontation in
which it clearly expected to ally itself with the military.
22 February, PDC [Christian Democratic Party] leader and Chief State Counsel
Mario Zamora was murdered at his home a few days after the Frente Amplio
Nacional (FAN), headed by former National Guard Major Roberto D'Aubuisson, had
accused him publicly of being a member of subversive groups.
24 March, Monsignor Oscar Arnulfo Romero was shot dead by a sniper as he
celebrated mass in the Chapel of the Hospital
de la Divina Providencia. This
crime further polarized Salvadoran society and became a milestone, symbolizing
the point at which human rights violations reached their peak and presaging the
all-out war between the Government and the guerrillas that was to come.
During the funeral, a bomb went off outside San Salvador Cathedral.
The panic-stricken crowd, estimated at 50,000 people, was machine-gunned,
leaving an estimated 27 to 40 people dead and more than 200 wounded.
7 May 1980, Major Roberto D'Aubuisson was arrested on a farm, along with a group
of civilians and soldiers. In the
raid, a significant quantity of weapons and documents were found implicating the
group in the organization and financing of death squads allegedly involved in
Archbishop Romero's murder. The
arrests triggered a wave of terrorist threats and institutional pressures which
culminated in D'Aubuisson's release. This
strengthened the most conservative sector in the Government and was a clear
example of the passivity and inertia of the judiciary in this period.
Monsignor Romero's role during this period
Monsignor Romero, who was of Salvadoran nationality, was appointed
Metropolitan Archbishop of San Salvador on February 3, 1977.
In the homilies he gave immediately prior to his extrajudicial execution,
the Archbishop of San Salvador echoed the acts of violence and violations of
human rights revealed by the work of the Office of Legal Assistance of the
Archdiocese. As a result, he became
a well-known critic of the violence and injustice and was perceived as a
dangerous enemy in certain civilian and military circles.
Representatives of the Government and the Armed Forces considered his
role to be favorable to the subversive movement.
The press referred to him in unequivocally hostile terms, such as
"... a demagogic and violent Archbishop ... (who) from the Cathedral
promotes the embrace of terrorism..."
and they counseled "it will be well-advised for the Armed Forces to begin
to oil their rifles."
In his homily of February 17, 1980, Monsignor Romero objected to United
States military assistance to El Salvador in these terms:
the [Government] Junta nor the Christian-Democrats govern the country.
The political power is in the hands of the Armed Forces.
They use their power unscrupulously.
They only know how to repress the people and defend the interests of the
The assassination of the Archbishop of San Salvador caused a grave moral,
spiritual, and psychological impact on Salvadoran society, and was the prelude
to an internal armed conflict that submerged the country in 12 years of violence
that caused thousands of deaths.
On March 23, 1980, in what would be his last Sunday homily, Monsignor
Romero stated: "In the name of God, in the name of this long-suffering
people whose ever more tumultuous cries go up to the Heavens, I call on you, I
beg you, I order you to stop the repression."
The role of the Truth Commission
The peace negotiations under the auspices of the United Nations
culminated on January 16, 1992, with the signing of a Peace Agreement by the
Government and the dissident armed group the Frente
Farabundo Martí para la Liberación Nacional (hereinafter
"FMLN"), in Chapultepec, Mexico.
In the course of the negotiations, which extended over three years, it
was agreed to create the Truth Commission, whose mandate would be to investigate
the "serious acts of violence" that occurred in El Salvador from 1980
to 1991, "and whose impact on society urgently requires that public should
know the truth."
The agreement to create the Commission, signed April 27, 1991,
established that the Truth Commission would be made up of "three
individuals appointed by the Secretary-General of the United Nations after
consultation with the Parties." The
Secretary- General of the United Nations designated Belisario Betancur (former
President of Colombia), Reinaldo Figueredo Planchart (former Foreign Minister of
Venezuela) and Thomas Buergenthal (former President of the Inter-American Court
of Human Rights). The Truth
Commission was created with a mandate to present a final report with conclusions
and recommendations, which was to be remitted to the parties and the
Secretary-General of the United Nations.
The Truth Commission Report, published March 15, 1993, was described in
the following terms by former President of the Inter-American Court of Human
Rights Pedro Nikken:
is a chilling Report which, beyond the individual cases in respect of which the
facts are clarified, reveals how violence and state terrorism were used
mercilessly against civil society. At
times directly, with acts attributable to-active-duty military personnel, at
times through the sinister death squads, organized by civilians under the
protection of the army and persons responsible for thousands of disappearances
and assassinations.... The Report
clarifies facts that had already been denounced and never seriously
investigated. Two, in particular,
shook the conscience of the world: the
assassination of Archbishop Romero, committed by a death squad under the command
of the founder of the ARENA party, and the assassination of the Jesuit fathers
and their domestic employees, ordered by the military high command.
The Truth Commission Report is the result of a review of documents in El
Salvador and in other countries; several interviews of participants, witnesses,
victims, and relatives; analysis of information received from government bodies,
including copies of instructions and orders issued; review of judicial files;
and visits to the places where the events occurred.
In order to guarantee the reliability of the evidence collected, the
Truth Commission insisted on verifying, confirming, and re-examining all the
statements as to the facts, which were compared to a large number of sources
whose veracity had already been established.
The Commission determined that no source, no witness, by itself, would be
considered sufficiently reliable to establish the truth as to any factual issue
considered in reaching its conclusions. It
also decided that the secondary sources--for example, the reports by national or
international entities, whether governmental or private, and the statements of
persons who lack sufficient first-hand knowledge of the facts related by
them--by themselves, did not constitute a sufficient basis for reaching
conclusions. Nonetheless, these secondary sources were used by the Truth
Commission, with some circumstantial evidence, to verify conclusions that arose
from primary sources.
The IACHR notes the seriousness of the methodology used by the Truth
Commission, as well as the guarantee of impartiality and good faith derived from
its composition, in which the State itself had a say.
Furthermore, according to the agreement by which it was created, the
Truth Commission was a national entity. In
consideration of the foregoing, the IACHR considers that the results of the
Truth Commission's investigation into this case merits faith, and, as such,
shall consider it in relation to the facts alleged and items that have been
introduced into evidence in this case. It
should be noted that the State has not called into question the conclusions of
the Truth Commission.
Facts not controverted
A considerable part of the petitioners' allegations coincide with the
facts established in the public reports of several organizations, and, in
particular, with the conclusions of the Truth Commission Report on the
extrajudicial execution of the Archbishop of San Salvador.
As noted, the Salvadoran State did not controvert this version of the
facts, nor the conclusions of that Report.
The only communication presented by the State to the IACHR in relation to
the merits of the case recognizes the importance of the Truth Commission's
Report in the peace process and in determining the truth.
The State indicated, in this regard:
Truth Commission Report represented a step both important and necessary for the
Salvadoran peace process.... In El
Salvador the truth was known, not covered up.
As seen in this report, the Salvadoran State has not controverted the
facts alleged by the petitioners. In
effect, as observed in the summary of the processing of the instant case, the
IACHR more than once alerted the Salvadoran State that, in view of its
procedural silence, it could apply the presumption that the facts alleged are
true. The State, duly notified, did
not respond to those communications. Bearing
in mind the foregoing, and the expressions of approbation by the State of the
Truth Commission's report, the IACHR considers as proven the facts regarding
this case that are described below.
In February 1980, the Archbishop of San Salvador received a series of
death threats, to the point that he preferred that those who
worked with him not accompany him on his outings, so as to keep them from
unnecessary risk. In
March, the threats began to materialize. On
Monday, March 10, 1980, the day after officiating a mass for the deceased Mario
Zamora, a briefcase with a bomb was found behind the pulpit.
On March 24, 1980, 24 hours after having called on the Salvadoran
military to cease the repression, and while celebrating mass in the Chapel of
the Hospital de la Divina Providencia, Monsignor Romero was assassinated before
numerous witnesses by a member of a death squad.
He was hit by a single projectile, which caused his death after a profuse
The investigation to determine the responsibility for the assassination
of the Archbishop was deficient and ineffective.
The gathering of the material indicia of the crime at the Chapel of the Hospital de la Divina Providencia by the National Police was handled
ineffectively. Further, the Fourth
Criminal Judge, Atilio Ramírez Amaya, ruled that an autopsy be performed at the
Policlínica Salvadoreña; three pieces of shrapnel from the projectile were
removed; the projectile that had fragmented in the Archbishop's body caused the
fatal internal hemorrhaging. The
Judge considered, in principle, that the projectile used could only be a
.22-caliber bullet or one like it.
The National Police confirmed that the projectile was a .22-caliber
bullet, based on the weight of the pieces of shrapnel, without reaching any more
precise conclusions. On
March 27, 1980, after surviving an attack at his home, Judge Ramírez Amaya
submitted his resignation and left the country.
On May 7, 1980, in a search of the "San Luis" farm in Santa
Tecla, 12 military officers and 12 civilians were arrested, among them Major
Roberto D'Aubuisson; they were indicted for conspiring to overthrow
the government. Several
documents were seized in the search,
including a diary belonging to Captain Alvaro Rafael Saravia and two lists of
names of members of the Armed Forces of El Salvador.
The "Saravia Diary" provides several data relevant to the
assassination of the Archbishop of San Salvador.
It contains references to purchases and deliveries of several arms and
munitions; according to the ballistic report ordered by Judge Ramírez Amaya,
several were of the sort used in the assassination.
Certain names of persons against whom there were indicia of participation
in the planning, execution, or cover-up of the assassination appear repeatedly.
There are also references to Amado Garay, the driver who transported the
assassin, as well as the gasoline receipts for the red vehicle put at the
disposal of Captain Saravia, from which the assassination was carried out.
Even though this information was available, none of the documents seized
at the "San Luis" farm was made available by the authorities to the
Fourth Criminal Court. Years later
the court had access to a copy of the diary, but the judicial initiatives to
locate the original were to no avail.
Several efforts were made to cover up the responsibility for the
assassination. In March 1984,
Roberto D'Aubuisson participated in a television broadcast during the
presidential election campaign, in which he presented a confession taped by an
alleged FMLN commander. On the
tape, the alleged commander called "Pedro Lobo" confessed to having
been an accomplice in the assassination of Monsignor Romero.
Almost immediately, "Pedro Lobo" was identified as a common
prisoner who was locked up from 1979 to 1981,
who confessed that he had been offered US$ 50,000 to publicly take credit for
Even after this incident, D'Aubuisson continued insisting the guerrillas
had assassinated the Archbishop of San Salvador.
In October 1992 the Armed Forces accused the FMLN of being responsible
for the assassination of the Archbishop in statements to the Truth Commission,
yet provided no evidence in this regard.
In 1986, the Commission to Investigate Criminal Acts (hereinafter
"the Investigative Commission") began its inquiry into the
assassination of Monsignor Romero. In
November 1987, Amado Antonio Garay, one of the persons arrested at the "San
Luis" farm, revealed that on March 24, 1980, Captain Alvaro Saravia ordered
him to drive a red Volkswagen to the Hospital
de la Divina Providencia in Colonia Miramonte.
Once there, he parked the vehicle in front of the Chapel and its
passenger, a bearded man unknown to him, ordered him to duck down as if he were
making a repair. He heard a shot,
turned around, and saw the subject, who "was holding a rifle with both
hands and aiming to the right out the right-hand rear window of the vehicle ...
and at that moment perceived a smell of gunpowder ... the bearded individual
immediately told him, with a calm voice, 'go slowly, take it easy,'" after
which they left.
Garay drove the individual to where Captain Saravia was, and the
individual told Captain Saravia, "mission accomplished."
Three days later, Garay drove Captain Saravia to a house where Major
D'Aubuisson was. There Saravia
said: "we already did what we
had planned in terms of the death of Monsignor Arnulfo Romero."
The Office of the Public Prosecutor presented Garay as a witness before
Judge Ricardo Alberto Zamora Pérez on November 20, 1987.
Based on the description of the gunman provided by Garay, and on the reports on visits to the places
mentioned by the witness, the Judge ordered the arrest of Captain Saravia
on November 24, 1987. He
also sent an official note to the Central Elections Council to have it issue to
the Court a certification as to D'Aubuisson's status as a Deputy in the
Captain Saravia filed a writ of habeas corpus.
In December 1988, the Supreme Court of Justice of El Salvador held that
"said testimony [of Garay] does not merit full faith ... the witness made
his statement seven years, seven months, and twenty-four days after the event on
which he is testifying, which makes his testimony less than fully
credible." In addition, he
considered that the Public Prosecutor lacked the authority to seek Captain
Saravia's extradition from the United States of America, where he was at the
In its Report, the Truth Commission established that:
Major Roberto D'Aubuisson, former Captain Alvaro Saravia and Fernando Sagrera
were present on 24 March 1980 at the home of Alejandro Cáceres in San Salvador.
Captain Eduardo Avila arrived and told them that Archbishop Romero would be
celebrating a mass that day. Captain
Avila said that this would be a good opportunity to assassinate the Archbishop.
D'Aubuisson ordered that this be done and put Saravia in charge of the
operation. When it was pointed out
that a sniper would be needed, Captain Avila said he would contact one through
Mario Molina. Amado Garay was
assigned to drive the assassin to the Chapel.
parking lot of the Camino Real Hotel was the assembly point before proceeding to
the Chapel. There, the bearded
gunman, carrying the murder weapon, got into a red, four-door Volkswagen driven
by Garay. At least two vehicles
drove from the Camino Real Hotel to the scene of the crime. Outside the main entrance to the Chapel, the assassin fired a
single bullet from a vehicle, killing Archbishop Romero.
D'Aubuisson ordered that 1,000 colones be handed over to Walter Antonio
"Musa" Alvarez, who received the payment in question, as did the
bearded assassin. Alvarez was abducted in September 1981 and found dead not
The Truth Commission concluded as follows:
There is full evidence that:
Former Major Roberto D'Aubuisson gave the order to assassinate the
Archbishop and gave precise instructions to members of his security service,
acting as a "death squad", to organize and supervise the assassination
Capts. Alvaro Saravia and Eduardo Avila played an active role in the
planning and perpetration of the assassination, as did Fernando Sagrera and
Amado Antonio Garay, the driver of former Captain Saravia, was assigned to drive
the gunman to the Chapel. Mr. Garay
was a direct witness when, from a red, four-door Volkswagen, the gunman fired a
single high velocity .22 bullet to kill the Archbishop.
There is sufficient evidence that Walter Antonio "Musa"
Alvarez, together with former Captain Saravia, was involved in paying the
"fees" of the actual assassin.
There is sufficient evidence that the failed assassination attempt
against Judge Atilio Ramírez Amaya was a deliberate attempt to deter
investigation of the cause.
There is full evidence that the Supreme Court played an active role in
preventing the extradition of former Captain Saravia from the United States and
his subsequent imprisonment in El Salvador.
In so doing, it ensured, inter
alia, impunity for those who planned the assassination.
On March 20, 1993, five days after the Truth Commission Report was
submitted, the Legislative Assembly of El Salvador adopted the General Amnesty
Law by Decree Nº 486. The
Supreme Court of Justice of El Salvador declared itself without jurisdiction to
review its constitutionality, as it considered that the amnesty was an
"eminently political" act.
Considerations of Law
The right to life (Article 4 of the American Convention)
Article 4(1) of the American Convention provides: "Every person has
the right to have his life respected.... No
one shall be arbitrarily deprived of his life."
Article 27(2) of the American Convention enshrines this right as one of
those that cannot be suspended in time of war, public danger, or other emergency
that threatens the independence or security of the states parties.
As established supra, the Archbishop of San Salvador was assassinated with the
participation, as planner and perpetrator, of Major Roberto D'Aubuisson and
Captains Alvaro Saravia and Eduardo Avila.
Also participating were civilians Fernando Sagrera and Mario Molina, and
a "professional killer" whose identity is unknown.
D'Aubuisson is the person responsible for giving the order to assassinate
Monsignor Romero, and for giving precise instructions to members of his security
entourage, who acted as members of a death squad in carrying out the
In 1980 and 1981, death squad operations were frequently coordinated with
the Armed Forces. The clandestine
nature of their actions made it possible to cover up the State responsibility
and to create an ambience of total impunity for the killers.
A look at the history of El Salvador shows that some sectors of the State
security forces maintained a distorted perception of their true function in
relation to the vast majority of the civilian population. In
this way, the limits between the death squads and the Armed Forces became
blurred. The Truth Commission
death squads, in which members of State structures were actively involved or to
which they turned a blind eye, gained such control that they ceased to a
marginal or isolated phenomenon and became an instrument of terror used
systematically for the physical elimination of political opponents. Many of the civilian and military authorities in power during
the 1980s participated in, encouraged, and tolerated the activities of these
In particular, several reports on the events at that time indicate that
high-level officers of the security forces of El Salvador directed the
assassinations carried out by the death squads.
According to one of those reports, "the names and personal details,
and, in some cases, even the photographs of Salvadorans selected for kidnapping
and assassination, were given to non-commissioned officers of the Army, who made
up 'death-squad'-type teams with active and reserve members of the security
forces and the Army."
The IACHR issued pronouncements regarding numerous violations of the
right to life committed by members of the security forces and paramilitary
groups that operated in some cases at the orders of those security forces, and
in other cases with their tolerance.
The United Nations Commission on Human Rights expressed similar concerns,
deploring the violations of the right to life committed by "governmental
In order to situate the phenomenon of the death squads in proper context,
one must recall the 1979 coup, which profoundly altered the political landscape
of El Salvador. On that occasion,
approximately 80 officers of the Armed Forces and security forces were
cashiered, among them Major Roberto D'Aubuisson.
As a retired military officer, he became the leader of a current that
sought to defeat the dissident armed groups, and which opposed any type of
political opening or negotiation with them.
Certain sectors perceived the group led by D'Aubuisson as the only
faction capable "of preventing a left-wing takeover”.
Roberto D'Aubuisson obtained the support of powerful financial sectors of
civil society who feared that their interests would be adversely affected by the
reforms announced by the Government Junta and by a possible Marxist
this respect, the Truth Commission received testimony from several witnesses
that wealthy landowners and businessmen provided their farms, homes, vehicles,
and bodyguards to support the action of the death squads, especially those
directed by D'Aubuisson.
He also had the support of sectors of the Armed Forces, through which he
had access to intelligence reports that he used for his own purposes.
Even though the High Command of the Armed Forces was aware of a “steady
leak of information, not only was nothing ever done to control it but
intelligence leaks were even organized intentionally."
The political organization that D'Aubuisson led included among its
activities individual attacks, robberies, "recovery of funds," and
acts of sabotage. One
of the successful individual attacks carried out by his organization was
precisely the extrajudicial execution of the Archbishop of San Salvador.
As established above, the death squads incorporated active members of the
state security forces in their ranks and had the support of the corresponding
official institutions. Accordingly,
such groups effectively operated as agents of the Salvadoran State, and
committed their unlawful acts making use of government organs.
As regards the direct participation of state agents in the death squads,
their unlawful acts are directly imputable to El Salvador and trigger the
international responsibility of the State.
The Inter-American Court of Human Rights has established:
a State organ, official or public entity violates one of those rights, this
constitutes a failure of the duty to respect the rights and freedoms set forth
in the Convention. [Article 1.1]
conclusion is independent of whether the organ or official has contravened
provisions of internal law or overstepped the limits of his authority:
under international law a State is responsible for the acts of its agents
undertaken in their official capacity and for their omissions, even when those
agents act outside of the sphere of their authority or violate internal law.
in principle, any violation of rights recognized by the Convention carried out
by an act of public authority or by persons who use their position of authority
is imputable to the State.
The IACHR should also note that the assassination of Monsignor Romero
constitutes a grave infraction of the basic principles of international
humanitarian law, insofar as it was an attack directed against a member of the
civilian population, who in no way could be considered a legitimate target in
the context of the armed conflict in El Salvador.
Specifically, common Article 3 of the Geneva Conventions of 1949--which
was applicable to the Salvadoran internal conflict--expressly and in all
circumstances prohibits "violence to life and person" of "persons
taking no active part in the hostilities, including members of armed forces who
have laid down their arms and those placed hors
de combat...." In
addition, the basic rules of common Article 3 are developed and strengthened by
Article 13 of the Second Protocol Additional to the Geneva Conventions of 1949. This
norm codifies the principle of civilian immunity in the following terms:
The civilian population and individual civilians shall enjoy general
protection against the dangers arising from military operations.
To give effect to this protection, the following rules shall be observed
in all circumstances.
The civilian population as such, as well as individual civilians, shall
not be the object of attack. Acts
or threats of violence the primary purpose of which is to spread terror among
the civilian population are prohibited.
Civilians shall enjoy the protection afforded by this Part, unless and
for such time as they take a direct part in hostilities.
It has been established supra
that during the Salvadoran armed conflict, State agents and individuals who
acted with the approval and acquiescence of the Salvadoran State identified the
Archbishop of San Salvador with dissident armed groups because his homilies
exposed grave human rights violations committed by the security forces of El
Salvador. It has also been noted
that the pro-Government press had characterized him as "a demagogic
archbishop...who from the Cathedral encouraged the embrace of terrorism."
In this respect, it should be noted that in no case can the mere
expression of sympathy for the cause of one of the parties to the conflict be
tantamount or likened to the kind of acts considered by humanitarian law as
posing a real and immediate threat to the enemy that could make a civilian a
legitimate target of attack.
In its Report on the Situation of Human Rights in El Salvador,
published in 1978, the IACHR stated that both the Government and certain
organizations that enjoyed official favor were systematically and seriously
harassing nuns, priests, and laypersons who participated in activities that
constituted part of the Church's social action programs.
The Church authorities reported that the bishops were attacked publicly
for alleged links with terrorism and subversion.
In this context, the Commission recommended to the Salvadoran State that
"the necessary measures be taken to prevent any continuation of the
persecution against members of the Catholic Church who act in the legitimate
exercise of their pastoral mission."
Independent of the direct participation of State agents, the State is, in
any event, responsible internationally for acts violative of human rights
perpetrated by individuals or organized groups of individuals, like the death
squads, that act with its approval, acquiescence, tolerance, or even in
collaboration with State security forces.
Based on the foregoing considerations of fact and law, the IACHR
concludes that the Salvadoran State is responsible for the violation of the
right to life of Monsignor Romero by virtue of the acts of the death squads.
El Salvador has violated, in the person of Monsignor Romero, the right
set forth in Article 4 of the American Convention, in conjunction with the
principles codified in common Article 3 of the Geneva Conventions.
Article 25(1) of the American Convention provides:
has the right to simple and prompt recourse, or any other effective recourse, to
a competent court or tribunal for protection against acts that violate his
fundamental rights recognized by the constitution of laws of the state concerned
or by this Convention, even though such violation may have been committed by
persons acting in the course of their official duties.
The Inter-American Court has said that under this provision, the States
Parties to the American Convention are required to provide effective judicial
remedies to victims of human rights violations.
Such remedies must be substantiated in accordance with the rules of due
process of law (Article 8(1)), all within the general obligation of the States
Parties to guarantee the free and full exercise of the rights recognized to vest
in all persons under the jurisdiction of said states (Article 1(1)). In
addition, the Court has said that Article 25(1) of the American Convention
incorporates the principle of the effectiveness or efficacy of the procedural
means or instruments aimed at guaranteeing the rights protected therein. By
virtue of this, the non-existence of effective domestic remedies leaves victims
of human rights violations defenseless and justifies international protection.
For its part, Article 8(1) of the American Convention establishes the
right of all persons "to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal, previously
established by law ... for the determination of his rights and obligations of a
civil, labor, fiscal, or any other nature.”
With respect to that provision, the Inter-American Court has indicated:
should be interpreted broadly so that such an interpretation would be based on
both its letter and its spirit, and it should be read in conjunction with
Article 29(c) of the Convention, according to which no provision of the
Convention can be interpreted so as to exclude other rights and guarantees
inherent in the human being or that derive from democratic and representative
According to this criterion, the Inter-American Court understands that
Article 8(1) includes the right of the victim's next-of-kin to judicial
judicial guarantees consist of an effective investigation, the trial of those
responsible for the illegal acts, the imposition of appropriate sanctions, and
compensation for any damages and losses suffered by the next-of-kin.
The Inter-American Court has determined that the obligation assumed by
the states to guarantee the free and full exercise of the rights recognized in
the American Convention means:
duty of the States Parties to organize the governmental apparatus and, in
general, all the structures through which public power is exercised, so that
they are capable of juridically ensuring the free and full enjoyment of human
rights. As a consequence of this
obligation, the States must prevent, investigate and punish any violation of the
rights recognized by the Convention and, moreover, if possible attempt to
restore the right violated and provide compensation as warranted for damages
resulting from the violation.
The Court has also indicated that:
State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify those
responsible, to impose the appropriate punishment and to ensure the victim
the State apparatus acts in such a way that the violation goes unpunished and
the victim's full enjoyment of such rights is not restored as soon as possible,
the State has failed to comply with its duty to ensure the free and full
exercise of those rights to the persons within its jurisdiction.
As to the manner in which the duty to investigate should be carried out,
the Court has specified that:
investigation] must be undertaken in a serious manner and not as a mere
formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as its own
legal duty, not as a step taken by private interests that depends upon the
initiative of the victim or his family or upon their offer of proof, without an
effective search for the truth by the government.
A basic aim of any criminal proceeding is to clarify the truth in respect
of the event investigated. The
judicial investigation must be undertaken in good faith and must be diligent,
exhaustive and impartial and geared to exploring all possible lines of
investigation that make it possible to identify the perpetrators of the crime,
so that they can be tried and punished.
In this case, the violation of Monsignor Romero's right to life is also
an offense provided for and punished by Salvadoran criminal law.
Therefore, the State had the duty to undertake, at its own
initiative--through the Office of the Public Prosecutor--an effective judicial
investigation aimed at identifying all the perpetrators of the violation,
judging them, and applying the corresponding punishments under law, to which end
it should have promoted and given impetus to the criminal proceedings to their
As the IACHR has indicated in other cases, the "Principles on the
Effective Prevention and Investigation of-Extra-legal, Arbitrary and Summary
Executions," recommended by the United Nations Economic and Social Council
in its resolution 1989/65, set forth what is required to investigate a
suspicious death, based on the due diligence standard.
The above-mentioned principles establish that in cases such as this, the
investigation should be aimed at determining the cause, manner, and time of the
death, the person responsible, and the procedure or practice that may have
caused it. It addition, an adequate
autopsy must be performed, all the material and documentary evidence must be
compiled and analyzed, and the witness statements must be taken. The investigation should distinguish among death due to
natural causes, death due to accident, suicide, and homicide.
The UN organs have complemented those principles with the "Manual on
the effective prevention and investigation of extra-legal, arbitrary and summary
executions," according to which the main purpose of an
investigation is "to ascertain the truth about events leading to the
suspicious death of a victim." The Manual provides that those who carry out
inquiries should adopt measures that include at least the following:
Recover and preserve probative elements related to the death in order to
assist in any future trial of the persons responsible;
Identify any possible witnesses and obtain statements from them
concerning the death; ... [and]
Bring the perpetrator or perpetrators suspected of having committed a
crime to a competent court established by the law.
To guarantee an exhaustive and impartial investigation of an illegal,
arbitrary or summary execution, the Manual indicates that "one of the most
important aspects [of the investigation] is the gathering and analysis of the
"the persons responsible for the investigation of a presumed extrajudicial
execution must also have access to the place in which the corpse was discovered,
as well as to the place in which the death may have occurred."
According to the standards set forth in the Manual, the procedure for
collecting the evidence should be in line with certain criteria, some of which
are as follows:
The area contiguous to the corpse must be secured.
Access to the area must be permitted only to the investigators and their
Color photographs of the victim must be taken, since, in comparison with
black and white photos, color photographs may reveal in greater detail the
nature and circumstance of the death of the victim;
Both the interior and exterior of the place must be photographed, as well
as any physical evidence;
A record should be made of the position of the corpse and of the
condition of the clothing;
A note should be taken of the following factors which serve to determine
the time of death:
temperature of the body (warm, cool, cold);
position of corpse and degree of discoloration;
rigidity of corpse; and
state of decomposition.
All evidence of the existence of weapons, such as firearms, projectiles,
bullets and shells or cartridges, must be collected and preserved.
Where appropriate, efforts must be made to find the residue from the
shots and/or detect metal fragments.
86. In the section of this report that refers to the facts that are not controverted, the IACHR established that the investigation carried out in the judicial proceeding on this case in El Salvador was deficient. What follow is a more detailed analysis of the investigation, in light of the minimum standards set forth in the above-mentioned UN Manual
Article 42 of the IACHR Regulations provides:
The facts reported in the petition whose pertinent parts have been transmitted to the government of the State in reference shall be presumed to be true if, during the maximum period set by the Commission under the provisions of Article 34 paragraph 5, the government has not provided the pertinent information, as long as the other evidence does not lead to a different conclusion.
United Nations, From Madness to Hope: The 12-year war in El Salvador,
Report of the Commission on the Truth for El Salvador, March 15, 1993.
El Salvador ratified the American Convention on Human Rights on June 23, 1978.
Certification granted by Mr. Wilfredo Hernández Calderón, Secretary of the
First Criminal Chamber of the First Section, Central, San Salvador, Official
note no. 304. File Nº 85, May 25, 1993.
Resolution of May 20, 1993, Constitutional Chamber, Supreme Court of Justice
of El Salvador.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment
of July 29, 1988, para. 61. That
judgment, as well as all of the documents of the Inter-American Court cited
herein, can be obtained at the web site http://corteidh.nu.or.cr/ci/.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez, supra,
paras. 62-66; Case of Fairén Garbi and Solís Corrales, Preliminary
Objections, Judgment of March 15, 1989, paras. 86-90; Case of Godínez Cruz,
Judgment of January 20, 1989, paras. 65-69.
Inter-American Court of Human Rights, Case of Godínez Cruz, Judgment of June
26, 1987, para. 95.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez, supra,
para. 72; Case of Fairén Garbi and Solís Corrales, supra,
para. 97; Case of Godínez Cruz, supra,
Inter-American Court, Case of Castillo Páez, Preliminary Objections, Judgment
of January 30, 1996, Series C. Nº 24, para. 41.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Preliminary Objections, paragraph 88. See,
also, IACHR, Annual Report 1998, Report Nº 27/97 (Case 11.697 - Ramón
Mauricio García Prieto Giralt), El Salvador, para. 35.
That document, like all the reports of the IACHR cited herein, may be
obtained at the web site http://www.cidh.oas.org.
See, in general, IACHR, Annual Report 1980-1981, OEA/Ser.L/V/II.54, Doc. 9
rev. 1, October 16, 1981, pp. 111-112; Annual Report 1981-1982,
OEA/Ser.L/V.II.57, Doc. 6 rev. 1, September 20, 1982, pp. 120-122; UN, Report
of the Economic and Social Council "Situación
de los derechos humanos en El Salvador," A/36/608, October 28, 1981;
and "Situación de los derechos humanos y las libertades fundamentales en
El Salvador," A/37/611, November 22, 1982.
Truth Commission Report, “Introduction” page 10.
Idem, “The institutionalization of violence”,
The Truth Commission notes that the anti-government violence was expressed in
actions such as occupying radio stations, bombing newspapers (La
Prensa Gráfica and El Diario de
Hoy), kidnappings, executions, and attacks on military targets, in
particular by the Fuerzas Populares de
Liberación (FPL) and the Ejército
Revolucionario del Pueblo (ERP). Report, p. 28.
Idem, “Introduction” page 10; and “1980-1983: The institutionalization
of violence”, page 28.
El Diario de Hoy, San Salvador,
February 11, 1980, p. 53.
El Diario de Hoy, San Salvador,
February 23, 1980, p. 34.
Homily of February 17, 1980.
See Truth Commission Report, “Cases and Patterns of Violence”.
In the El Salvador Peace Agreement signed at Chapultepec it was also
stipulated that the work of the Truth Commission would be linked to the
clarification and overcoming of impunity.
That agreement provides at section 5:
The parties recognize the need to clarify and put an end to any indication of impunity on the part of officers of the armed forces, particularly in cases where respect for human rights is jeopardized. To that end, the Parties refer this issue to Commission on the Truth for consideration and resolution.
Article IV of the April 27, 1991, Mexico Agreement and Article 2 of the Annex
Article 1 of the Appendix to the April 27, 1991, Mexico Agreement.
Id., Articles 11 and 12.
Pedro Nikken, El manejo del pasado y
la cuestión de la impunidad en la solución de los conflictos armados de El
Salvador y Guatemala,
published in "Liber Amicorum - Héctor Fix-Zamudio," Volume I,
Secretariat of the Inter-American Court of Human Rights, San José, Costa
Rica, 1998, p. 149. Nikken was designated the United Nations independent
expert on El Salvador by Resolution 1992/62 of March 3, 1992, of the UN
Commission on Human Rights, and submitted his report in 1993 (See UN,
E/CN.4/1993/11, February 15, 1993). With
respect to the extrajudicial execution of the Jesuit priests and two domestic
employees, committed in November 1989, see IACHR, Annual Report 1999, Report Nº
136/99, December 22, 1999.
Truth Commission Report, “Cases and Patterns of Violence” footnote 125, p.
Id., p. 24.
Monsignor Romero and several of those who worked with him met in late February
1980 with Héctor Dada, one of the new members of the Second Government Junta
of El Salvador. Dada mentioned
the death of the high-level Christian-Democratic Party leader Mario Zamora, on
February 23 of that year, and said that he was aware of death threats against
himself and the Archbishop, among others.
(Interview with Fr. Rafael Urrutia).
Monsignor Romero received news of equally serious threats from the
Papal Nuncio in San José, Costa Rica, Monsignor Lajos Kada. (Diary of Monsignor Romero).
Later, on Saturday, March 22, and Sunday, March 23, the women religious
who staffed the Hospital de la Divina Providencia, where the Archbishop lived,
received anonymous phone calls threatening to kill him.
Interviews with Roberto Cuéllar and Fr. Rafael Urrutia.
During the first week of March, Monsignor Romero met with the
Ambassador of the United States in El Salvador, Robert White, who he informed
of the threats against him. Although the Archbishop did not mention specific details, he
seemed to be aware of the imminence of the situation, saying:
"I only hope that when they kill me they don't kill many of
us." Interview with Robert
Statement to the Commission to Investigate Criminal Acts by Fr. Fabián
Conrado Amaya Torres. Judicial
case inquiring into the death of Monsignor Oscar Arnulfo Romero, Case Nº
134/80, Fourth Criminal Court, folios 592 ff.
According to the police report made on March 10, 1980, and forwarded to
the Court on March 14, 1986, the bomb was made of 72 sticks of
commercial-grade dynamite that could be activated by a dual timing device and
radio transmission, sufficient to kill several of those who were officiating
at the altar, and who were situated in the first rows of the church.
".... in addition, it is an artifact that has never been used by
subversives who have always operated in our midst, unless it is true that they
have new technical personnel, it is known that 2 of Japanese nationality have
come ... of the electrical detonators used, there are no stocks in our
country." Judicial file,
folios 494 ff.. Neither the
authorities of the Catholic Church nor the Office of Legal Assistance of the
Archdiocese received any official communication on the results of the police
investigation, and all indications are that no further investigations were
undertaken. Interview with
Roberto Cuéllar. Interview with
Monsignor Ricardo Urioste.
The mass, celebrated at six o'clock in the afternoon, was scheduled in memory
of the mother of a friend of Monsignor Romero's, Jorge Pinto (h), owner of the
opposition newspaper "El Independiente." The mass had been announced in "La Prensa Gráfica" and "El Diario de Hoy" of March 24, 1980.
Judicial file, folios 42-43.
Judicial file, folio 4.
Interview with Judge Atilio Ramírez Amaya.
Neither this report nor the X-rays appear in the judicial file.
Truth Commission Report, note 391, p. 128.
Id. See also, UN, "Human
rights situation in El Salvador," 1981, supra.
Majors Roberto D'Aubuisson, Jorge Adalberto Cruz Reyes, Roberto Mauricio
Staben; Captains Alvaro Rafael Saravia, José Alfredo Jiménez, Víctor Hugo
Vega Valencia, Eduardo Ernesto Alfonso Avila; Lieutenants Federico Chacón,
Miguel Francisco Bennet Escobar, Rodolfo Isidro López Sibrián, Carlos Hernán
Morales Estupinián, Jaime René Alvarado y Alvarado; Messrs. Antonio Cornejo
Jr., Ricardo Valdivieso, Roberto Muyshondt, Fernando Sagrera, Amado Antonio
Garay, Nelson Enrique Morales, Andrés Antonio Córdova López, Herbert Romeo
Escobar, Fredy Salomón Chávez Guevara, Marco Antonio Quintanilla, José
Joaquín Larios, and Julián García Jiménez.
Report of May 12, 1980, by Major José Francisco Samayoa, in which he
placed the detainees at the disposition of the military investigative judge.
A third document, entitled "Cuadro
General de la Organización de la Lucha Anti-Marxista en El Salvador"
("General Situation of the Organization of the Anti-Marxist Struggle in
El Salvador") set forth the guidelines and objectives of the group that
was at the "San Luis" farm. That
group set as its goal taking power in El Salvador, to which end it prepared a
political plan of tasks for "direct action," called "combat
network activities," including "individual attacks."
Acta de incautación (Report
on Evidence Seized), May 12, 1980.
Among the documents seized in that search was a "List of accusations made
by a South American informant against Monsignor Oscar Arnulfo Romero,
Archbishop of San Salvador. He is
willing to provide photographic and written evidence within 15 days."
May 12, 1980 report cited above.
Id., Exhibit Nº 7.
The agenda includes notations of "ammunition for 223," a type of
.22-caliber bullet, and "2 Bushmaster" and "5 AR-15," both
of which fire both .22 and .223 caliber rifles.
For example, "Amado" refers to Amado Garay; "Avila" to
"el pelón" Avila; "Eduardo Av." and "Eduardo
A." refer to Captain Eduardo Avila.
"Negro," "Nando Sagrera," and "Nando S."
refer to Fernando Sagrera. "Saravia"
refers to Captain Alvaro Rafael Saravia.
The participation of all of them will be described infra.
Mr. Rey Prendes, leader of the Christian Democratic Party, speaking to the
press days after the presentation of the video, denounced the "Commander
Pedro Lobo" simulation and revealed his true identity and history.
Judicial file, folios 152 ff.
In August 1985, the Office of the Public Prosecutor submitted the statement of
Roberto Adalberto Salazar Collier ("Pedro Lobo") to the Fourth
Criminal Court; on that occasion he alleged the same thing but did not mention
D'Aubuisson's name. One of the
alleged sponsors submitted a written statement in February 1986, in which he
denied the accusations. Judicial
file, folios 152 ff. and folio 241. The
official notes of Judge Zamora in which he asked the television stations to
provide him with a videotape of Salazar Collier's statements were answered in
the negative. The Office of the
Public Prosecutor insisted that the television stations indicate who had
provided and taken back the video, but the Judge denied the request.
Judicial file folios 189, 200, 210, 212.
Major D'Aubuisson cited a book entitled "La
conspiración del silencio," by Manuel de Armas, in which it is said
that Cuban agents committed the crime. La
Prensa Gráfica, "Hace revelaciones Mayor D'Aubuisson," Friday,
September 6, 1985, p. 2. El
Diario de Hoy, Friday, September 6, 1985, p. 3.
Judicial file, folio 389.
Statement by Amado Antonio Garay to the Investigative Commission, November 19,
1987. Judicial file folio 274.
Garay pointed to an old photo of Dr. Héctor Antonio Regalado, with a beard
painted on, as that which was most like that of the description he had given
to identify the gunman. Regalado
was responsible for the security of Captain Saravia and later for
D'Aubuisson's security. Later, he
was the Chief of Security of the Legislative Assembly, when D'Aubuisson was
President of the Assembly. Regalado
denied being the perpetrator of the shot and the Truth Commission did not find
any persuasive evidence of his participation in the assassination.
Id., folio 270.
Id., folios 269 and 285.
Judicial file, folio 299.
Public letter from Dr. Héctor Antonio Regalado, March 13, 1989.
Mr. Sagrera denied to the Truth Commission that he participated in any way.
Truth Commission Report, pages 130-131.
Truth Commission Report, page 131.
Decree Nº 486, published in the Diario Oficial Nº 56, vol. 318, March 22,
Constitutional Chamber of the Supreme Court of Justice, Decision of May 20,
The Truth Commission carried out an exhaustive investigation of the summary
execution of Monsignor Romero as a case illustrative of the death squads in El
Salvador and indicated that former Major D'Aubuisson confirmed his own role in
planning this crime in reserved circles.
Truth Commission Report, p. 134.
Id., p. 131.
Id., p. 130.
Id., p. 132.
Amnesty International, Ejecuciones
extrajudiciales en El Salvador, 1984, p. 16.
IACHR, Annual Report 1980-1981, supra,
p. 111; Annual Report 1981-1982, supra,
UN Commission on Human Rights, Resolution 36/155, December 16, 1981; and
Resolution 1982/28 of March 11, 1982.
Truth Commission Report, p. 135.
Id., p. 134.
Id., p. 135.
Id., p. 135.
See "Cuadro General de la
Organización de la Lucha Anti-Marxista en El Salvador," supra.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment
of July 29, 1988, paras. 169-172. See
also Case of Godínez Cruz, Judgment of January 20, 1989, paras. 179-180; and
Case of Neira Alegría and others, Judgment of January 19, 1995, para. 63.
El Salvador ratified the Geneva Conventions of 1949 on June 17, 1953.
El Salvador ratified the Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of Non-International
Armed Conflicts (Protocol II) on November 23, 1978.
El Diario de Hoy, San Salvador,
February 11, 1980, p. 53.
See, in this regard, M. Bothe, K.Partsch & W.
Solf, New Rules for Victims
of Armed Conflicts: Commentary on the two 1977 Protocols Additional to the
Geneva Conventions of 1949,
(1982), p. 303.
IACHR, Report on the Situation of Human Rights in El Salvador (1978), p. 119,
Id., p. 166, para. 8; p. 167, para. 6.
See IACHR, Third Report on the Situation of Human Rights in Colombia (1999),
Inter-American Court of Human Rights, Case of Velásquez Rodríguez,
Preliminary Objections, para. 91
Inter-American Court of Human Rights, Advisory Opinion OC-9/87 of October 6,
1987, Judicial Guarantees in States of Emergency, para. 24.
Inter-American Court of Human Rights, Case of Fairén Garbi and Solís
Corrales, Preliminary Objections, Judgment of June 26, 1987, Ser. C Nº 2
(1987), para. 92. Although these
cases refer to forced disappearance, the IACHR considers that the analysis of
the Inter-American Court also applies to cases of extrajudicial execution such
as that analyzed in this report.
Inter-American Court of Human Rights, Case of Blake, Judgment of January 24,
1998, para. 96.
Id., para. 97.
Inter-American Court of Human Rights, Case of Velásquez Rodríguez, Judgment
of July 29, 1988, para. 166.
Id., para. 174. See also
Inter-American Court of Human Rights, Case of Godínez Cruz, Judgment of
January 20, 1989, para. 184.
Id., para. 176. Case of Godínez
Cruz, para. 187.
Id., para. 177.
The act was characterized in the proceedings as aggravated homicide (Article
153 of the Criminal Code of 1973). The
Criminal Code of El Salvador of 1973 and the Code of Criminal Procedure of the
same year were the substantive and procedural laws in which the judicial case
proceeded. The criminal justice
system in place at the time of the conduct in question (1980) was an
inquisitorial model with two phases: (a)
general inquiry, during which the criminal act is determined and the
individual or individuals responsible for committing the illegal act are
prosecuted; and (b) the special inquiry, which unfolds as it fully identifies
the persons involved, taking the evidence, and handing down the corresponding
judicial verdict. These stages
are the procedural activity in which the judge is the main procedural subject,
so much so that he both investigates and hands down the judgment.
 See, for example, IACHR, Annual Report 1995, Report Nº 10/95, Ecuador, paras. 32-34; Annual Report 1997, Report Nº 55/97, Argentina, paras. 423 and 424; Annual Report 1998, Report Nº 1/98, Mexico, paras. 75 and 76.
UN, document ST/CSDHA/12.