Practice Relating to Rule 159. Amnesty
In 1987, El Salvador’s Law on Amnesty to Achieve National Reconciliation (1987), adopted in conformity with the 1987 Esquipulas II Accords, provides:
Absolute amnesty is granted ipso jure to all persons, whether nationals or foreigners, who have acted as the immediate or proximate perpetrators of or accomplices to political crimes or related ordinary crimes or ordinary crimes committed prior to 22 October 1987 in which no fewer than 20 persons were involved.
This shall apply to those who have taken up arms if they approach the civilian or military authorities and state their wish to renounce violence and receive amnesty within 15 days of the date this law enters into force.
Those who took part in the assassinations of Mgr Oscar Romero and Herbert Anaya, committed kidnapping for personal gain or engaged in drug trafficking cannot benefit from the amnesty.
Article 1 of El Salvador’s General Amnesty Law for Consolidation of Peace (1993) gives full, absolute and unconditional amnesty to all persons who in any way have participated in the commission of political crimes, related common crimes and common crimes committed before 1 January 1992 by persons numbering no less than 20. In Article 2, the law extends the definition of a political crime to include “crimes against the public peace”, “crimes against judicial activity” and crimes “committed because, or as a result of armed conflict, without taking into consideration political status, militancy, affiliation or ideology”. Article 4 provides, inter alia
: “The amnesty granted by this law extinguishes all civil liability.”
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.
19. The General Amnesty for the Consolidation of Peace (LAGCP) has not been reformed since its entry into force; nonetheless … the amnesty is not applicable to those cases where the reparation of a person is being pursued for [the violation of] a fundamental right.
In 2010, in its written replies to the Human Rights Committee concerning its sixth periodic report, El Salvador stated in response to a question on the recommendation to review the General Amnesty for Consolidation of Peace Act of 1993:
5. As the State has already mentioned to the Committee against Torture, since the new Government assumed its functions on 1 June 2009, … the State of El Salvador has recognized the rights of victims of violations of human rights to know the truth, to have access to justice and to receive adequate reparations.
6. Even though the Legislative Branch has not currently included within its work plan the revision of the Amnesty Law of 1993, the legal impossibility of applying it in judicial bodies has been declared by the Constitutional Division of the Supreme Court of Justice, in cases of serious violations of human rights, since the year 2000 (judgment of 26 September 2000 on the request that the General Amnesty for Consolidation of Peace be declared unconstitutional).
7. In effect, this judgment, numbered 24-97/21-98, opened the possibility for criminal judges to consider the inapplicability of the Amnesty Law in concrete cases of violations of human rights that occurred during the internal armed conflict.