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Justice & The Generals
El Salvador
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El Salvador - Trials
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Carlos Urquilla is a 24-year-old attorney. He lives in El Salvador, and works for Fundación de Estudios para la Aplicación del Dercho (FESPAD), a non-governmental Salvadoran human-rights organization. He has challenged the constitutionality of El Salvador's Amnesty Law. The amnesty was established shortly after the publication of a U.N.-sponsored report called "From Madness to Hope: The 12-Year Civil War in El Salvador"; this report faulted many prominent Salvadoran leaders, particularly those in the military.

Through a translator, Mr. Urquilla gave an interview regarding the Salvadoran justice system in connection to the violation of human rights in his country. To watch the interview -- in Spanish -- select it at right. The translated transcript of the interview is below.

Interviewer: What changes have occurred in the last years in El Salvador to create the rule of law?

Carlos Urquilla: Well, the most important change occurred with the peace accords, when the Supreme Court of Justice was renewed. It changed the mechanism for selecting its magistrates, and a new Supreme Court of Justice was formed, much more independent and much more prepared to fulfill its mission. Respect for those constitutional rules of selection of magistrates, and economic independence by allocating a minimum of 6% of the budget, are the most important changes. This has also allowed for international co-operation efforts, has allowed for the development of qualified staff, and a considerable institutional fortification of the judicial system. Of course we are not in an optimal situation, but we are in a better situation than we were eight or 10 years ago.

Interviewer: The Amnesty Law that was passed here, some people think that is vital to reconciliation. Other people felt is a cover up of the truth and justice. How do you see it?

Mr. Urquilla: It was a mechanism to prevent that justice should prevail. It was a mechanism of impunity and has not been a mechanism of rehabilitation or national reconciliation. We see it not only in the experience of El Salvador, but in any other country where an amnesty law has been applied. The most recent example is Chile. Anyone could think that with almost 30 years having passed since the events of 1973, and with an amnesty law, all the wounds would be healed. Which is not the case. Societies don't heal by decree, but rather by institutional processes of pardon and justice.

Interviewer: Recently, because of the case of the Jesuits [six Jesuit priests were taken from their beds and executed in 1989], they asked to re-examine, I believe, the constitutionality of the amnesty decision. Could you explain this, and what was the outcome from the Supreme Court?

Mr. Urquilla: OK. Indeed, I prepared the unconstitutionality challenge, the most recent unconstitutionality challenge that was brought against the amnesty law, which was presented by FESPAD and other human rights organizations. Twenty months after that petition, the Supreme Court emitted a decision which, even though it indicates that the amnesty law is constitutional, asserts that at least two exceptions apply to its implementation. Two very important exceptions. The first is that it violates the Constitution that the amnesty be implemented by government officials who were perpetrators -- be they civilians or military -- within the same presidential period in which they are amnestied. But probably the most important exception [which] comes from this decision is that the amnesty law cannot be applied when it involves cases that qualify as violations of human rights.

Interviewer: Does that mean there is going to be a flood of lawsuits on behalf of the victims of criminal and civil cases? Does the amnesty cover criminal cases as well as civilian cases, or is there a distinction?

Mr. Urquilla: What had happened with the amnesty law is that it pardoned -- let's call it that -- or stopped the prosecution of criminal cases and at the same time extinguished the possibility of civil liability for those responsible.

Interviewer: Now, those two exceptions are so broad that the many crimes committed during the five years of Christiani's administration, as well as the cases that can be described as violations of human rights, are countless. Do you think that this could provoke a flood of cases?

Mr. Urquilla: Well, in theory yes, in practice no. For one reason: The criminal legislative procedure has been modified during all this time. Now we have a legal process much more in line with international norms. And therefore, the possibility of pursuing a judgment is very difficult, in the measure that you need a lot of proof to establish the elements of the crime, a lot of discovery, and a lot of qualified expert testimony. It's necessary to gather an amount of important evidence that does not exist in the majority of the cases. But which do exist in many of the most important cases, like the case of the nuns, the case of the Jesuits, or the case Monsignor Romero.

Interviewer: Who will bring those cases?

Mr. Urquilla: If there were a Rule of Law, the Office of the Attorney General should be able to initiate these prosecutions of its own volition. Nevertheless, we can see in the experience of the Jesuits case -- which has had the most momentum -- it has been restrained from within the Attorney General's office itself. For that reason it is important that the victims, in an organized way, be able to present their petitions and inquiries through the Attorney General's office, and count on the support of human rights organizations and other civic institutions.

Interviewer: Even if it is the Attorney General's office that has to prosecute and the organizations must pressure, convince, persuade, the Attorney General's office.

Mr. Urquilla: The Attorney General has the monopoly on criminal prosecution. Once the process is initiated, the victims can join autonomously. But the initiative has to be taken by the Attorney General.

Interviewer: If cases were to go forward there should be individual accountability or state accountability for the human rights crimes of the past?

Mr. Urquilla: Both. Individually for the perpetrators of the crimes, either material or intellectual. This is deduced through the criminal responsibility in the criminal processes. And of the State. The institutional responsibility is always subsidiary to the responsibility of the people, according to the Salvadoran Constitution. In any case, there are facts that already have been judged internationally -- at least within the Inter-American Commission of Human rights, where the state has been condemned and not the individuals -- for the violation of those rights, as in the Romero case and the Jesuits case.

Interviewer: In order to clarify: to the institutions and the state but not the individuals?

Mr. Urquilla: Not the individuals, in the case of the Inter-American Commission. But in the criminal processes that were initiated it would only be for the individuals; it would only be individual responsibility.

Interviewer: For all the people who lost loved ones, like the disappeared, is there a legal process at work or would there be for people to investigate that, or does the Amnesty Law prevent that?

Mr. Urquilla: The amnesty in principle eliminated it. The cases that you are indicating qualify as cases of violations of human rights, forced disappearances of people, extra-judicial executions, etc. Therefore, they fall within the exceptions of application of the amnesty law. They can be judged criminally if the evidence allows and can be judged civilly only for the purpose of economic reparations. In any case, the victims maintain the right to know the truth about what happened and to know where are the remains of their missing relatives.

Interviewer: Two years ago I produced a documentary for American TV, about the South African Truth and Reconciliation Commission. And time and again, the people who had lost loved ones only wanted to get the bones back. What they wanted was to know where their bones were, so they could give them a proper burial. And that was [what it was] about. Their desire to know was more important -- it seems -- to many people, than to bring justice against the perpetrators. Is there any movement here, any sense of organized project to pursue this effort, to find the disappeared? Is there a procedure?

Mr. Urquilla: There's no procedure at the moment. At this moment it doesn't exist. Nevertheless, the possibilities opened by a criminal case would allow one to discover where to find the remains. Observe, for example, what has happened in the context of Chile, where it has been possible to determine who were the perpetrators, and in what location the disappeared people were buried or tossed, etc. On the other hand, a civic initiative exists at the moment, non-governmental, to establish special laws that authorize exhumations in possible sites where many people were buried or disappeared. This would allow the relatives to identify the remains. [It is] in a legal motion that is going to be presented to the Legislative Assembly in the near future.

Interviewer: That would be part of the process in criminal cases or what?

Mr. Urquilla: They in fact are proposing it somewhat autonomously. Neither for the criminal process, nor for the civil process. It is only to facilitate an exhumation so that the relatives can identify the remains of their disappeared. We think that this can be perfected and that it should be conceived as a reform to criminal law. So that the victims who want to pursue a case be able not only to sentence the culprit, but know where to find the remains of their relatives.

Interviewer: I've covered the trial of the case of the four church women in Florida, in October. And I wonder what is the impact of that trial and its outcome, the verdict here in El Salvador?

Mr. Urquilla: Well, the very fact that the case was able to go forward enabled the victims to reinforce their positions and re-initiate the cases of the past. With respect to the verdict, I believe that it has had neither a very negative nor a very positive effect. I believe that many people did not understand the verdict. Did not understand the significance of the judgment. Many people asked themselves if that's what the laws are like in the United States. But a lot more people asked why a subject so complicated was heard in a court, with a civil jury instead of a technical procedure. So, many people don't really understand what happened in Florida, where a jury did not manage to understand the concept of responsibility through a chain of command. But I understand that the relatives will initiate an appeal. This would allow for the process to be reopened. I believe that prosecuting the case was much more important than the final verdict.

Interviewer: Can you ever imagine General García or General Vides Casanova appearing in a courtroom in El Salvador?

Mr. Urquilla: Could anyone have imagined ten years ago that Pinochet would be seated in a courtroom? I believe not. But it is going to happen. Without a doubt it is going to happen, one way or another. Maybe not to them in particular, but probably others. Because this will depend on the treaties of extradition that could be signed with the government of the United States. It will depend on many factors that would allow their specific case to be judged in a Salvadoran court. The possibility does not seem remote. I refer to the Chilean experience; nobody would have imagined it. It happened and this little bit is a sign that history is changing. I don't have the slightest doubt that the military are going to be judged for the facts of the past, and soon.

Interviewer: At the time of the Peace Accords there was an ad hoc commission to purge the militaries as human rights abusers. Were García and Vides Casanova part of the list of people to be purged from the military? García had already retired and Vides Casanova too. Were they considered part of that list?

Mr. Urquilla: Honestly, I don't remember the result. The actual list. I don't remember the complete list. I believe that for the purpose of a criminal procedure that would not be relevant. That was an internal purge, of a disciplinary nature. I believe that the conclusions of the Truth Commission are more important, where there are specific references to both.

Interviewer: Is the Truth Commission Report considered a legally viable binding body of information here? Or is it considered not suspect in a way of the investigated methods?

Mr. Urquilla: It did not have binding effects, that is evident. It did not have binding effects. The Peace Accords reinforced that. But also, the same Accords said that the people indicated by the Truth Commission would have to be handed over to justice. That was not fulfilled. Even though I do believe that the information contained in the Truth Commission is important, because it is a guideline and no criminal judge at the moment could ignore it. In addition there are specific cases where not only the Truth Commission has been considered, but also another type of information that has come to light recently. Such as the Jesuits case and the case of Monsignor Romero, that the Truth Commission also dealt with, but for which there is already an evidence report emitted by the Inter-American Commission of Human Rights. All these are indications that together with witnesses, experts, etc. would form a very powerful basis for deducing responsibilities.

Interviewer: Can there be justice here without addressing the social and economic disparities?

Mr. Urquilla: Well, that is a very complex question, as justice is so ample a concept that it would happen by annulling those economic injustices. I mean, there will be justice -- among other reasons -- when those economic disparities are also surpassed. I believe that it is a constant process, a process that is constructed little by little. Maybe not at the speed that we would like, but little by little the steps are taken to overcome impunity.

Interviewer: What is the biggest obstacle to establishing the rule of law and the judicial system that works here?

Mr. Urquilla: The lack of political will. The lack of political will of the Attorney General's office. And to a certain extent as well, judges are fearful to innovate, to overcome impunity, to remove structures of the past. I believe that this last element can be overcome if the judges open themselves to the community. To the degree that the judges can feel the endorsement, support, legitimacy of what they do with the civic organizations, with the citizens' organizations. With respect of the first, the lack of political will, this will require, without a doubt, a more complicated action, more complex, that involves other players. Unfortunately it's going to have to incorporate political parties. But it's going to take a strong campaign to change that political will.

Interviewer: Why do you do this work?

Mr. Urquilla: I like justice. That's a candid answer. In reality I believe that the most important challenge of humanity in these moments is to establish the validity of human rights and I believe that this requires the best efforts of all citizens.

Interviewer: Did you study law here in El Salvador?

Mr. Urquilla: Yes.

Interviewer: Can you explain what is FESPAD?

Mr. Urquilla: FESPAD is an organization and is a research foundation for the application of the law and that is dedicated, therefore, to analyze judicial studies on the national situation and to try to influence the creation of a democratic state under rule of law.

Interviewer: You went to law school after the Peace Accords?

Mr. Urquilla: Yes.

Interviewer: So you are the new generation. You look very young. How old are you?

Mr. Urquilla: 24.

Interviewer: Can you have justice without political justice?

Mr. Urquilla: No, the legal security is one of the pillars of the construction of justice. We can all have a perception of what is just. Somebody can think that the most just is what happened here. Without a doubt, Hitler believed he acted justly. Then, we cannot allow justice to be what each one believes. Justice must have a democratically constructed legal and institutional endorsement. Then, the legal security, the exact application of the laws constructed democratically, is the best way -- maybe not the ideal -- but the best way to achieve justice.

Interviewer: It is such important statement. If you do not mind to repeat it ... Can there be social justice here without having legal institutions?

Mr. Urquilla: I believe not. Because justice cannot depend on what each person opines. Everyone has their own criteria on justice. And it is not possible that the justice of a state is based on what each individual thinks is right in an arbitrary manner. Therefore, the best way to assure justice is the correct application of democratically formed laws. Not of any law and not any application. The correct application of laws constructed in democratic form. That is the best way to achieve justice. Maybe it is not the ideal, but it is closest.

Interviewer: Thank you.

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Photo of Carlos Urquilla