Case Summary and Outcome

The Supreme Court of El Salvador annulled a lower court decision denying the reopening of a criminal investigation about the circumstances that surrounded the death of an individual during the collective homicide case “El Calabozo” (The Dungeon), committed in 1982. The first instance judge denied a claim lodged by three citizens requesting to reopen the aforementioned investigation because of the statute of limitations. The Supreme Court protected the right to justice, to receive a justified decision, and to know the truth of the plaintiffs and held that the right to know the truth holds an intimate relationship with the right to access information. Thus, it annulled the lower instance decision and reopened the criminal investigation.

Facts

On July 29, 1992, a survivor “of the collective homicide that occurred at the site known as “El Calabozo” (…) during the military operation carried out from August 17 to 22, 1982″ [para. I.1.A], presented certain facts before a first-instance judge so that an investigation could be carried out. After some of the evidence was introduced before the court, on March 22, 1999, the judge ordered the case to be closed, “notwithstanding the possibility of reopening the case in the event that there were elements of evidence that merited it” [para. I.1.A].

Subsequently, in 2006, high-ranking officers of the Armed Forces of El Salvador were indicted for crimes of terrorism, arbitrary detention, and murder, among others, that occurred during the aforementioned military operation. Therefore, the reopening of the criminal proceeding was requested. 

On March 6 of the same year, on the grounds of the General Amnesty Law for the Consolidation of Peace (LAGCP) of 1993, and the prescription of the judicial action, the judge rejected reopening the case. The three plaintiffs considered this decision violated their rights “to judicial protection, to legal security, to petition, to a life with dignity —with respect to health and personal integrity— and to know the truth” [para. I.1.B]. Even though the decision was appealed, the action was declared inadmissible on March 16, 2007.

The Supreme Court upheld the plaintiffs’ right of access to jurisdiction and the right to know the truth. Consequently, it annulled the decision of the first-instance judge denying the reopening of the criminal proceeding.

Decision Overview

The Supreme Court of El Salvador had to decide whether the judicial decision to reject the reopening of the criminal proceedings and investigations concerning the collective homicide that occurred during a military operation in 1982 in “El Calabozo”, violated the plaintiffs’ right to know the truth.

The Supreme Court pointed out that the right to know the truth is constitutionally protected, and it is embodied by “serious, exhaustive, responsible, impartial, integral, systematic and conclusive investigations by the State, the clarification of the facts and the corresponding punishment” [para. IV.3.A.a]. Likewise, it pointed to the existence of a relationship between the right to access information and the right to know the truth, noting that “because freedom of information seeks to ensure the publication, dissemination, or reception of facts of public relevance that allow people to know the situation in which their existence develops, in order to make free decisions, the right to know the truth implies free access to objective information about facts that have violated fundamental rights and the temporal, personal, material and territorial circumstances that surrounded them and, therefore, imply the possibility and the real ability to investigate, seek, and receive reliable information that leads to the impartial and complete clarification of the facts ” [para. IV.3.A.a].

The Court indicated that the right to know the truth is a fundamental right that has a double dimension; (i) individual, and (ii) collective. From the Court’s perspective, the individual dimension consists of the possibility for individuals directly or indirectly affected by a crime to know “who the perpetrator [of the unlawful act] was, when and where it was committed, how it was committed, and why it was committed” [para. IV.3.B], regardless of the time elapsed since the events. On the other hand, the collective dimension consists of society’s right to “know the truth regarding facts that have seriously violated the fundamental rights of individuals” [para. IV.3.B]. The Court referred to several cases of the Commission and the Inter-American Court of Human Rights in which the right to know the truth in both dimensions was defined, highlighting the preventive role it plays against the repetition of such acts.

The Court concluded that the right to know the truth “implies the right to request and obtain information on: (i) the circumstances and motives for the perpetration of the acts that violated fundamental rights; (ii) the identity of the perpetrators; (iii) when the violations are particularly against rights such as life or liberty, the whereabouts of the victims; and (iv) the progress and results of the investigation” [para. IV.3.C]. Thus, it indicated that the State is obliged to (i) facilitate access to the documentation in its custody and (ii) carry out the investigations necessary to clarify the facts.

Finally, the Court specified that the judge or the competent authority may choose to reject the filed action or consider that the accused did not commit the acts attributed to them. This does not imply a violation of the right to know the truth, as long as the State carries out all actions aimed at learning “the truth of the facts, whether judicial or extrajudicial” [para. IV.3.].

In the specific case, the Court affirmed that the State has an obligation to contribute to the effectiveness of fundamental rights. It considers that the rights of the victims were violated by the failure to carry out a “serious, exhaustive, diligent and conclusive” investigation [para. V.3.C.d], since not all of the evidence ordered in 1992 was introduced to the judicial body, nor were the procedures proposed in 2006 analyzed, and the process had been stagnant for 24 years. Likewise, for “having [the judge] unjustifiably and unconstitutionally applied the exclusions of criminal responsibility – amnesty and statute of limitations for criminal action” [para. V.3.C.d].

Consequently, the Court ordered to leave without effect the September 27, 2016 resolution, by which the reopening of the case file was rejected, and overruled the decision. The foregoing notwithstanding the possibility that the plaintiffs may resort to actions for compensation.