Practice Relating to Rule 151. Individual Responsibility
Section B. Individual civil liability
El Salvador’s Penal Code (1997), as amended in 2008, and which contains a section on the violations of the laws or customs of war, states in the general section on criminal liability:
Art. 114.- The execution of an act, that is described in law as an offence or a fault, gives rise to civil liability in accordance with the provisions of this Code.
Civil Law Consequences
Art. 115.- The civil law consequences of an offence, which will be declared during sentencing, comprise:
1) Restitution of the object obtained as a result of the punishable act or payment of its respective value;
2) Reparation of the damage caused;
3) Compensation for the victim or his or her family for the material or moral damages caused; and,
4) The procedural costs.
[Persons] Directly Responsible
Art. 116.- Anyone criminally responsible for an offence or a fault is also subject to civil [action] if there are resulting damages, either material or moral.
The Penal Code further states: “The exclusion of criminal responsibility does not lead to the exclusion of civil liability, which is governed by civil law.”
In 2009, in its written replies to the Committee against Torture concerning its second periodic report, El Salvador stated:
10. Indicate if, in accordance with the obligations of the Pact [1966 International Covenant on Civil and Political Rights], the General Amnesty Law for Consolidation of Peace of 1993 has been amended so as to not bar the investigation and punishment of those responsible for torture, cruel, inhuman and degrading treatment during the armed conflict.
“In this way, the lack of a criminal offence does not exclude the [existence] of an illicit civil act and even if the criminal judge declares that the first does not exist he or she cannot prejudge on the possible presence of the second … [A]s a result, even if an accused [person] is acquitted in a criminal process he or she can be sued through the civil procedure for non-compliance with the obligation to compensate for the damages caused by an illicit civil act or for the creation of a risk. The above implies that the claim for compensation due to costs and damages should be treated independently and can be raised before the competent tribunals even when the existence of another type of responsibility over the same act has been rejected from a legal point of view … ”, that is to say that “if the acts that gave rise to the civil liability of an official or public employee have not been amnestied – as they constitute offences that cannot be amnestied – or the amnesty is contrary to the Constitution, the claim for compensation is valid before the competent tribunals … ”.