Spain Ready to Proceed with Case Over the 1989 Killing of Jesuit Priests in El Salvador

For the last nine years, a court in Spain has been trying to obtain the presence of 20 former Salvadoran military officers to face trial on their alleged involvement in the 1989 murders of six Jesuit priests and their housekeeper and her daughter in El Salvador. Recently one of them—Inocente Orlando Montano Morales (“Montano”)—Is about to be sent to Spain for trial.[1]

 Montano

Former Colonel Montano was the deputy minister of Salvadoran Public Security from 1989 to 1992 and since April 2015 has been the subject of a judicial request by the U.S. Department of Justice for his extradition from the U.S. to Spain to face these charges.

On February 4, 2016, a Magistrate Judge in the U.S. District Court for the District Court of the Eastern District of North Carolina, after an evidentiary hearing, granted this request for extradition based upon the following conclusions: the court had personal jurisdiction over Montano; the U.S. and Spain had an extradition treaty; Montano had been charged with extraditable offenses under that treaty (the terrorist murder of five Jesuit priests of Spanish original nationality); and there was probable cause the Montano committed these offenses.[2]

Montano then exercised his only means of appealing that order by filing in April 2016 an application for a writ of habeas corpus in the same court. After briefing and a hearing, a district judge of that court in August 2017, granted the U.S. government’s motion to dismiss the application and dismissed the application.  This was based on the court’s conclusion that this extradition followed accepted practice and did not appear to be infirm; the treaty “provides for the extradition of a defendant charged with murder when committed outside the territory of the requesting nation {Spain]; . . . [its] laws allow for such a prosecution; and the laws of the requested nation [the U.S.] would allow for a prosecution in similar circumstances.”[3]

Montano then appealed this order to the U.S. Court of Appeals for the Fourth Circuit and simultaneously asked the district court for a stay or postponement of his extradition. This was denied by the district court on September 6 after concluding that he has “failed to make a strong showing that he is likely to succeed on the merits [of his appeal]” and “cannot demonstrate that he will suffer irreparable injury in the absence of a stay.” Thereafter simple denials of the request for a stay were entered on September 28 by the Fourth Circuit and on November 15 by U.S. Supreme Court Chief Justice John Roberts.[4]

Undoubtedly important in Chief Justice Roberts’ denial of a stay was the brief in opposition to such a stay that was submitted by the U.S. Solicitor General, the principal attorney for the U.S. in the U.S. Supreme Court. In its first three of 29 pages, before setting forth a detailed review and approval of the lower courts’ actions, that brief set forth the following facts from the record: “Toward the end of that war [between the military –led government and a leftist guerrilla group]– on November 16, 1989—members of the El Salvador Armed Forces . . . murdered six Jesuit priests, their housekeeper, and the housekeeper’s daughter at the Universidad Centroamerica (UCA) in El Salvador. . . . Five of them were Spanish nationals.” Moreover, evidence submitted by the Spanish authorities showed that “in the days leading up to the murders, the . . .  radio station that [Montano] oversaw made threats against the Jesuit priests; that on the day before the murders, [Montano] participated in a meeting at which one of this fellow officers gave the order to kill the priests; that [Montano] provided ‘necessary information’—namely, the location of one of the priests—to those who carried out the murders; and that following the murders, [Montano] attempted to conceal [the Armed Forces] involvement by threatening the wife of a witness.”[5]

The Solicitor General concluded his brief with these comments: “the [U.S.] has a strong interest in having extradition requests resolved without undue delay, both to comply with its treaty obligations and to further its reciprocal interest in having other Nations cooperate swiftly with its own extradition requests and other law enforcement objectives.” Moreover, “Spain is an important partner of the [U.S.] in terrorism and other cases of national importance, and timely compliance with its extradition requests advances the [U.S.’] foreign policy and law enforcement interests.” (Pp. 27-28.)

As a result, Montano is now headed for imminent extradition to Spain. Almudena Bernabéu, an expert from the Center for Justice and Accountability (CJA) and a private prosecutor of the Jesuits case in Spain with her organization Guernica 37, said about four weeks ago the State Department determined that extradition was appropriate. “From that moment, the two countries are ready for delivery and reception of Montano, but they did not want to do it” until he had exhausted all of his U.S. remedies.

Other Former Salvadoran Military Officers

Of the other 19 former Salvadoran military officers charged with this horrible crime, one was convicted of the crime in El Salvador and was re-imprisoned after its Supreme Court invalidated its Amnesty law, one (former Defense Minister Emilio Ponce) is deceased and two others are cooperating with the Spanish prosecutors (Yussy Mendoza and Camilo Hernandez).

These other 15 still live in their home country, but its Supreme Court twice (2012 and 2016) has denied their extradition to Spain.

Manuel Escalante, a human rights lawyer at Jose Simeon Canas Central American University, where the murdered priests lived and worked and were murdered, after learning of the imminent extradition of Montano, called for prosecution of the 14 in El Salvador. He said that a conviction in Spain would be a big step toward “eliminating historical impunity” and that Salvadoran prosecutors must also act to advance the case in the Central American nation. The victims and their defenders “are going to seek justice. We are going to ask for the reopening of the trial.”[6]

The university, however, previously had said it considers the case closed against those who carried out the killings and even has called for clemency for former Col. Guillermo Benavides, who has served four years of a 30-year sentence as the only military official in prison for his role in the crime.

================================================

[1] The charges subsequently were reduced to terrorist murder of the five priests of original Spanish nationality as a result of an amendment to Spain’s statute on universal jurisdiction. The priests, their murders, judicial proceedings about this crime, including the Spanish case, and these extradition proceeding have been discussed in the posts listed in “The Jesuit Priests” section in List of Posts to dwkcommentaries—Topical: EL SALVADOR.

[2]  Certification of Extraditability & Order of Commitment, In re Request by Spain for the Extradition of Montano, Montano v. Elks. No. 2:15-MJ-1021-KS (E.D.N.C. Feb. 5, 2016).

[3] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C. Aug. 21, 2017).

[4] Order, Montano v.  Elks, No. 5-16-HC-2066-BO (E.D.N.C.. Sept. 6, 2017); Order, Montano v.  Elks, N0. 17-7091 (4th Cir. Sept. 28, 2017); Order, Montano v.  Elks, No. 17A445 (U.S. Sup. Ct. Nov. 15, 2017); Drew, Last hurdle cleared for ex-Salvadoran official’s extradition, Assoc. Press (Nov. 15, 2017); Labrador & Rauda, Colonel Montano to Spain for the  murder of the Jesuits, El Faro (Nov. 15, 2017); Progress in Jesuit murder case on 28th anniversary, El Salvador Perspectives (Nov. 16, 2017); Alonso, The Supreme Court of the United States approves extraditing a Salvadoran ex-military man to Spain for the killing of the six Jesuits, El Pais (Nov. 15, 2017).

[5] Memorandum for the Federal Respondents in Opposition, Montano v. Elks, No. 17A445 (U.S. Sup. Ct. Nov. 8, 2017).

[6] Assoc. Press, El Salvador Jesuits Seek Reopening of Case in 1989 Massacre, N.Y. Times (Nov. 16, 2017); Lafuente, A halo of justice in the killing of the Jesuits in El Salvador, El Pais (Nov. 17, 2017.

Update on Spain’s Case Regarding the Murders of the Jesuits of El Salvador

Spain’s National Court (Audicencia Nacional) since November 2008 has been conducting a criminal case regarding the murders of six Jesuits priests and their housekeeper and her daughter in El Salvador on November 16, 1989. This lead in January 2009 to the Spanish equivalent of indictments of 14 former Salvadoran military officials and soldiers for murder, crimes against humanity and state terrorism. In May 2011 the court added six indictees and issued 20 international arrest warrants. Thereafter in November 2011 Spain issued requests for extradition of these men to Spain to face the charges. [1]

However, in August 2011 El Salvador’s Supreme Court refused to enforce the Interpol arrest warrants for 13 of the indictees who were living in that country and in May 2012 denied the requests for their extradition on the ground that the country’s constitution prohibited extradition of its citizens. Another indictee, Inocente Orlando Montano, had been living in the U.S. and now is in U.S. prison after pleading guilty to lying multiple times to U.S. immigration officials. (One indictee, former Colonel René Emilio Ponce, died during the prior proceedings.)

Just this October the Spanish court’s Criminal Chamber, en banc, decided that the court did have jurisdiction over all of the charges: murder, crimes against humanity and state terrorism.

Almudena Bernabeu
Almudena Bernabeu

Last week Almudena Bernabeu, CJA’s International Attorney and Transitional Justice Program Director and the lead private attorney for the prosecution in this case, was in El Salvador to discuss the case in connection with the twenty-fifth anniversary of these horrible crimes. [2]

First, she reported that the case is now at a standstill because none of the suspects is physically present in Spain.

Inocente Orlando Montano
Inocente Orlando Montano

Next year, however, she hopes this will change. In April of 2015, Senor Montano will complete his incarceration in the U.S. [3] By then the U.S. must decide whether it will honor Spain’s request to extradite Montano to Spain.

Although the U.S. is not legally required to consult with El Salvador on this issue, as a matter of inter-state courtesy the U.S. probably would do so, she said. Therefore, Bernabeu has conferred with officials of the Salvadoran government, who have confirmed that there is absolute willingness to collaborate with the Spanish process for the extradition of Mr. Montano from the U.S.  Thus, it is important to know that when the U.S. faces the decision whether to extradite Montano, the government of El Salvador has decided not to interfere.

Second, upon such an extradition and Montano’s arrival in Spain, the Spanish case would be re-activated to prepare the case for trial, presumably within 30 days.

Third, if, however, the U.S. deported Montano to El Salvador, the Salvadoran courts probably would refuse to extradite him in light of their prior refusal to extradite to Spain other indictees in the case who are Salvadoran citizens. In that event, the case in Spain could not proceed further.

Fourth, Bernabeu said she unsuccessfully has tried three times to have former Salvadoran President Alfredo Cristiani added as a defendant and indictee because she believes the evidence shows he ultimately was responsible for the crime committed by the military’s High Command and was an accessory to the killing. Indeed, she said that the testimony of two former Salvadoran military officials and documents, including declassified U.S. documents from the CIA, FBI and Department of Defense, show that Cristiani knew of the plan to kill the Jesuits before the murders happened. Whatever the reasons, the Spanish court has been reluctant to join a former foreign president as a defendant. [4]

Fifth, she said El Salvador’s General Amnesty Act of 1993 was a major problem for this case and others like it. This was so even though the Inter-American Commission on Human Rights in December 1999 decided in the Jesuits case that the Amnesty Law violated the American Convention on Human Rights and ordered El Salvador to declare it null and void and even though the Inter-American Court of Human Rights in December 2012 in another case (the El Mozote Massacre) ordered El Salvador to repeal the Amnesty Act. [5] That has not yet happened, but the Constitutional Chamber of El Salvador’s Supreme Court sometime soon is expected to rule on the constitutionality of that Act.

====================================================

[1] The Spanish court has jurisdiction over the case under Spain’s statute for universal jurisdiction over the most serious crimes of international concern. This statute is an implementation of the international legal principle of universal jurisdiction whereby a state has universal jurisdiction over certain crimes of international concern regardless of where the crime was committed or the nationality of the victim or perpetrator.  A detailed summary of the Jesuits case along with some of the court documents and other materials is available on the website of the non-profit Center for Justice and Accountability (CJA) based in San Francisco, California. CJA, the sponsor of the case in Spain. It is an international human rights organization dedicated to deterring torture and other severe human rights abuses around the world and advancing the rights of survivors to seek truth, justice and redress. It uses litigation to hold perpetrators individually accountable for human rights abuses, develop human rights law, and advance the rule of law in countries transitioning from periods of abuse.

[2] This account of Bernabeu’s comments is based upon Castillo, 25 Yrs After El Salvador Priest Killings, Groups Press for Justice, NBC News (Nov. 13, 2014); Labrador & Fatima, The government of El Salvador has decided not to hinder Montano’s extradition to Spain, El Faro (Nov. 14, 2014); Jaminez, Await Extradition of Montano, DiarioCoLatino (Nov. 15, 2014); Dalton, Cristiani knew at time of slaughter of Jesuits in El Salvador,” El Pais (Nov. 17, 2014). El Faro also recently published (a) a collection of articles from other Salvadoran newspapers evidencing the right’s hatred of the Jesuits before their murders; (b) biographies of the murdered priests, their housekeeper and her daughter and the six Salvadoran military personnel who were prosecuted for the crime in El Salvador (with only two convicted and then subsequently released from prison on the basis of the General Amnesty law); (c) an article describing how that Salvadoran prosecution for this crime was impeded by their attorney general; (d) an archive of U.S. diplomatic cables and other documents about the crime; and (e) a hyperlinked collection of El Faro’s prior articles about the Jesuits case.

[3] The U.S. legal proceedings against Montano are discussed in prior posts and comments: Comment [to “Spain Requests Extradition” post]: Ex-Salvadoran Military Officer [Montano] Indicted for Alleged Violations of U.S. Immigration Laws (Feb. 12, 2012); Comment [to “Spain Requests Extradition” post]: Former Salvadoran Military Officer [Montano] Pleads Guilty to Lying to U.S. Immigration Officials (Sept. 15, 2012); Former Salvadoran Colonel Inocente Orlando Montano To Serve 21 Months in U.S. Prison (Sept. 5, 2013).

[4] On December 16, 2008, the U.S. Embassy in El Salvador sent a cable to the U.S. Secretary of State. It reported that earlier that month senior officials of the Salvadoran government went to Spain and met with its attorney prosecuting the Jesuits case and with other top-level Spanish government officials, who said they were embarrassed about the case’s seeking to add Alfredo Cristiani, El Salvador’s former president, as a defendant. The Spanish prosecutor also promised support and cooperation to the Salvadoran officials.

[5] Yet another post reviewed the decision in the El Mozote Massacre case by the Inter-American Court of Human Rights.