Report No. 386 (2020) IACHR. Petition No. 1775-10 (El Salvador)

• Year: 2020
• Case Type: Admissibility
• Respondent State: El Salvador
• Court: Inter-American Comission of Human Rights

REPORT No. 386/20

PETITION 1775-10

REPORT ON ADMISSIBILITY

EDWARD FRANCISCO CONTRERAS BONIFACIO AND FAMILY

EL SALVADOR

OEA/Ser.L/V/II

Doc. 403

10 December 2020

Original: Spanish

Approved by the Commission electronically on December 10, 2020.

Cite as: IACHR, Report No. 386/20, Petition 1775-10. A.. E.F. Contreras Bonifacio and family. El Salvador. December 10, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Ovidio Mauricio González and A.D. Gómez1
:	E. Francisco Contreras Bonifacio and family members2
Respondent S.:	El Salvador
Rights invoked:	Articles 4 (life), 5 (humane treatment), 7 (personal liberty) and 25 (judicial protection) of the American Convention on Human Rights3

II. PROCEEDINGS BEFORE THE IACHR4

Filing of the petition:	December 10, 2010
N. of the petition to the S.:	August 12, 2016
S.’s first response:	November 28, 2016
Additional observations from the petitioner:	M. 13, 2020
N. of the possible archiving of the petition:	October 18, 2018 and September 27, 2019
Petitioner’s response to the notification regarding the possible archiving of the petition:	October 7, 2019

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (instrument of ratification deposited on J. 23, 1978)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Articles 3 (juridical personality), 4 (life), 5 (humane treatment), 7 (personal liberty) and 25 (judicial protection) of the American Convention, in relation to its articles 1.1 (obligation to respect rights) and 2 (domestic legal effects)
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., the exception set forth in Article 46.2.c of the American Convention is applicable
Timeliness of the petition:	Y., in the terms of section VI

V. ALLEGED FACTS

1. The petitioner requests that El Salvador be declared internationally responsible for the forced disappearance of youth E.F. Contreras Bonifacio, and the subsequent impunity of the crime.

2. The petition states that youth E.F.C., a 21-year-old student and resident of L., C., left his home heading toward an educational center the morning of February 7, 2007, after which he did not return nor has there been any notice of his whereabouts ever since. Y.E.F. was an active militant of the Popular Youth Block (Bloque Popular Juvenil) and Popular Social Block (Bloque Popular Social) movements, which at that time were political opposers of the government then in power. It is claimed that prior to his disappearance E.F. had already been the victim of a kidnapping attempt in November 2005, by three people whom he had identified as police agents associated with a powerful private businessman and organized criminal groups. He managed to escape such kidnapping attempt, and as a result he received police protection for several months, for which reason, petitioner claims, police agents were already aware of his daily movements and routines. A criminal complaint was filed against the three alleged kidnappers, and proceedings were initiated in the course of which the defendants remained in liberty with the duty of periodically presenting themselves before the Tribunal.

3. When youth E.F. did not return home on February 7, 2007, his relatives undertook an urgent search, during which his father was informed –by alleged witnesses of the fact– that E. had been detained that day by police agents, after leaving the school he was attending and as he was heading home on a public bus. The youth’s father went to the L. police station, where a sergeant confirmed that E. had indeed been arrested by agents of the Homicide Investigation Division of the San Salvador Police; however, when the relatives went to the police station in Ateos, where that information had come from, they were told that there was no record of the arrest. S., the aforesaid sergeant retracted from his prior statement, as well as a Deputy Inspector, who told them that it had all been a confusion of information.

4. As part of his search, E. father went to several private and public S. entities, including several offices and detention centers of the National Police, hospitals, forensic institutes, the Office of the S. Attorney for the Protection of Human Rights and the organization Tutela Legal del Arzobispado in San Salvador. On February 14, 2007 he filed a criminal complaint before the General Prosecutor of the Republic –Santa Tecla Subregional Office, and the casefile was registered as 422-UDV-07. On February 19, 2007 he also filed a habeas corpus action before the Constitutional Chamber of the Supreme Court of Justice, which denied it two years and eight months later, in a judgment of October 2, 2009, where it held that insufficient evidence had been gathered to prove the occurrence of the disappearance or the detention, or to prove the alleged pattern of forced disappearances by public security forces agents that had been unfolding in the country, to which E.F.’s disappearance was allegedly connected. In the opinion of E. relatives and of the petitioners, members of the National Civil Police linked to criminal structures were allegedly implicated in the youth’s disappearance. The criminal investigation initiated by the Prosecutor’s office has allegedly not advanced, for which reason the fact remains unpunished to this day.

5. The S. informs in its response that the General Prosecutor’s Office has carried out several investigative tasks in relation to this disappearance, in the framework of investigation 422-UDV-07, which is currently at an active inquiry stage, and in the course of which the prosecuted crime was set to be Deprivation of Liberty. The S. explains that the Prosecutor’s Office has gathered several testimonial and documentary evidences; that the National Civil Police, as an auxiliary to the Prosecutor’s Office, has carried out all investigative tasks required by the latter; and that the Office of the S. Attorney for the Protection of Human Rights has overseen the performance of the Prosecutor’s Office concerning this case. In spite of this, the S. explains that to this date the Prosecutor’s Office does not have sufficient evidence to unequivocally identify those responsible for the crime, for which reason it shall continue to carry out all relevant actions in order to be able to determine who the perpetrators are, judge them and punish them in accordance with the law. In this line, the S. requests the IACHR to “consider the required response presented and admit it”, and to “positively regard the S.’s willingness to provide ample information on the present case”.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

6. The Inter-American Commission has repeatedly held that in cases where the forced disappearance of persons is claimed, the suitable remedy to exhaust domestically is the filing of a criminal complaint of the facts so that authorities, in an ex officio and proactive manner, carry out the corresponding investigation, prosecute and punish those responsible, identify the whereabouts of the disappeared persons, and provide full reparation to the surviving victims.5 This investigative charge is to be assumed by the S. as a legal duty of its own, and not as a management of private interests or one that depends on their private initiative nor on their provision of evidence6.

7. In the present case, the S. has not claimed lack of exhaustion of domestic remedies. It is proven that Mr. Francisco Antonio Contreras, E.’s father, filed a criminal complaint for his disappearance on February 14, 2007 before the General Prosecutor’s Office, and that the investigation has shown no progress in the identification of those responsible. As pointed out by the S. itself, the Prosecutor has ordered and gathered some witness and documentary evidences, yet these have been insufficient to clearly identify who committed the crime. F., the investigation is being conducted for the crime of deprivation of liberty, and not for forced disappearance. In additionally, M.C. unsuccessfully filed a habeas corpus petition before the Supreme Court of Justice, as well as a claim before the Office of the S. Attorney for the Protection of Human Rights that has yielded no results either. C., the IACHR concludes that the adequate domestic remedies have been initiated, but their resolution and exhaustion have taken an...