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12Sep03


Complaint for Extrajudical Killing and Crimes Against Humanity against Salvadoran Air Force Captain.


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA

    J. Doe,
    Plaintiff,

    -against-

    Alvaro Rafael Saravia; and Does 1-10 inclusive,

    Defendants


APPEARANCES:

Attorneys for Plaintiff: J. Doe

Nicholas W. van Aelstyn (CA Bar No. 158265) [Counsel for Service]
Russell P. Cohen (CA BarNo. 213105)
Heller Ehrman White & Mcauliffe Llp
3 .333 Bush Street
San Francisco, CA 94104-2878
4 Telephone: (415) 772-6000
5 Facsimile: (415) 772-6268

Joshua N. Sondheimer (CA Bar No, 152000)
Center For Justice & Account Ability
870 Market Street, Suite 684
San Francisco, CA 94102
Telephone: (415) 544-0444
Facsimile: (415) 544-0456

Carolyn Patty Blum (MA BarNo. 046880)
Center For Justice & Accountability
291 West 12th Street
New York, NY 10014
Telephone: (212) 989-0012


Plaintiff.J. Doe alleges as follows:

Preliminary Statement

1. On March 24, 1980, Oscar Arnulfo Romero y Galdamez, Archbishop of San Salvador and a leading figure in the struggle for human rights in El Salvador ("Archbishop 5 Romero"), was assassinated while he celebrated mass in the Chapel of the Hospital of Divine Providence. This action alleges that Captain Alvaro Rafael Saravia Merino ("Saravia") is liable for ordering, conspiring to commit, and aiding and abetting the 8 Archbishop's assassination.

Jurisdiction

2. This is a civil action by a non-citizen asserting violations of the law of nations, including the prohibition against extrajudicial killing and crimes against humanity, and for violation of the prohibition against extrajudicialldlling under the Torture Victim Protection Act ("TVPA"), Pub. L. No. 102-256, 106 Stat. 73 (1992) (codified at 28 U.S.c. 1350 note). Accordingly, this Court has jurisdiction over this action based on the Alien Tort Claims Act ("A TCA"), 28 U.S.c. 1350, and 28 V.S.e. 133

3. On information and belief, Defendant Saravia is an alien and resides in the Eastern District of California. Accordingly, venue is proper in the United States District Court for the Eastern District of California pursuant to 28 u.s.e 1391(d) and/or (b).

Parties
Defendants

4. On information and belief, Defendant Saravia is a Salvadoran citizen and a resident of the city of Modesto in Stanislaus County, California. Defendant Saravia previously served as a captain in the Salvadoran air force, In 1979, he resigned or was discharged from the military, and from that time worked closely with Major Roberto D' Aubuisson. D' Aubuisson, at the direction of and in conjunction with elements of the Salvadoran arn1ed forces and far right Salvadoran civilians inside and outside of El Salvador, founded the far right political movement Frente Amplio Nacional (the "FAN") and the far right political party A1ianza Republicana Nacionalista ("ARENA"), and organized "escuadrones de la muerte," or "death squads," paramilitary organizations composed of civilians and military figures that systematically carried out poJitically motivated assassinations and other human rights abuses in El Salvador.

5. Plaintiff is ignorant of the true names and capacities of Defendants sued herein as Does I through 10, and therefore sues these Defendants by such fictitious nameso Plaintiff is infonned and believes, and on that basis alleges, that each Doe Defendant is amend this complaint to allege the true names and capacities of such Doe Defendants when they are ascertained.

Plaintiff

Plaintiff Jo Doe, an alien, is a surviving relative of Archbishop Oscar Romero.

Statement of Facts

6. Plaintiff J" Doe alleges as follows on information and belief:

7. Archbishop Romero was appointed Metropolitan Archbishop of San Salvador on or about February 3, 1977. This was a period of growing political tension in El Salvador in which the military and security forces, and associated paramilitary groups, began engaging in a pattern of massive human rights abuses. By the early 1980's, as many as 1,000 civilians were being murdered each month.

8. During his tenure as Archbishop, Romero became an outspoken critic of the increasing human rights abuses being committed by the Salvadoran armed forces. His weekly homilies, broadcast nationally by radio, regularly exposed grave human lights violations committed by Salvadoran military and security forces. These weekly sermons prominent figure in the struggle for human rights in El Salvador. Archbishop Romero was widely viewed as the voice of the Salvadoran oppressed as he increasingly advocated for the interests of the Salvadoran poor and those victimized or affected by the violence being committed by the anned forces.

9. As a result, the Salvadoran military and security forces came to perceive Archbishop Romero as a threat He received death threats throughout the winter of 1979 and early 1980. On March 10,1980, a briefcase containing a bomb was found behind the pulpit of the church at which Archbishop Romero had said mass the day before. The mass had been held on behalf of Christian Democratic Party leader and Chief State Counsel Mario Zamora, who had been murdered at his home shortly after the FAN publicly accused Zamora of being a member of "subversive" groups.

10. On March 2.3, 1980, Archbishop Romero delivered a sermon telling soldiers, "In the name of God, in the name of this suffering people whose cry rises to heaven more loudly each day, I implore you, I beg you, I order you: Stop the repression." The next day Archbishop Romero was killed by a sniper's bullet while performing mass in the Chapel of the Hospital of Divine Providence. No person has been criminally prosecuted for this politically-motivated and state-sponsored assassination.

Maior D' Aubuisson's Death Squads

11. Following a 1979 coup d'etat led by reformist junior officers in the Salvadoran armed forces, a number of officers identified with the Salvadoran far right resigned from the military and security forces. These officers included Major D' Aubuisson and Defendant Saravia. Prior to leaving the Salvadoran armed forces in 1979, D' Aubuisson had held a high position in ANSESAL, the Salvadoran national intelligence agency which coordinated with intelligence units in all branches of the Salvadoran military and security forces and conducted surveillance against Salvadoran civilians. Upon his departure, D' Aubuisson, with the apparent permission of active military officers, took extensive ANSESAL intelligence files induding investigative files on thousands of Salvadoran civilians.

12. Following his departure from official military duty, and at the direction of and/or with the financial and logistical support of the Salvadoran armed forces and far right Salvadoran civilians inside and outside El Salvador, Major D' Aubuisson organized and began to lead a network of paramilitary groups or cells composed of then-active and former mi1itary officers and civilians dedicated to carrying out acts of political violence, At the direction of and/or with the financial and logistical support of the Salvadoran armed forces and far right Salvadoran civilians inside and outside El Salvador, D' Aubuisson simultaneously sought to create a public facade for these violent activities through a far right political movement under the banner of the FAN and, later, the ARENA party.

13. Paramilitary groups organized by D' Aubuisson, known as "escuadrones de la muerte:' or "death squads," participated in a widespread and systematic assault against Salvadoran civilians in conjunction with the Salvadoran armed and security forces that included intimidation, assault, abduction, torture, summary killings, and disappearances. These groups targeted individuals perceived as members or sympathizers of moderate and left wing political parties or guerrilla organizations, and groups and individuals who focused on the needs of farmers, workers, and the poor. Victims included labor activists, students, members of the clergy, fanl1workers, villages in conflict zones, and leaders, officials, and members of various political parties, including the Christian Democratic Party, the Social Democratic Party and the Democratic Revolutionary Front

14. In or about early 1980, Major D' Aubuisson, Defendant Saravia and other far right military and civilian members of a group close to Major D' Aubuisson met to discuss 1and plan the executions of Archbishop Romero and other prominent civilian leaders perceived to be opponents of the Salvadoran armed forces. Defendant Saravia made arrangements to obtain weapons, vehicles, and other material necessary for these actions.

Assassination of Archbishop Romero

15. On or about March 24, 1980, Major D' Aubuisson, Defendant Saravia and others gathered at the home of D'Aubuisson supporter in San Salvador. The group was informed that Archbishop Romero would be celebrating a mass that day and proposed that this provided a good opportunity to carry out the already approved assassination. D' Aubuisson agreed, and the group began to make arrangements.

16. Defendant Saravia coordinated the group. Defendant Saravia, among other things, ordered his personal driver to take a car and transport the assassin to the murder site by following another car to the Chapel of the Hospital of Divine Providence. After the assassin shot and killed Archbishop Romero, Saravia's driver returned the assassin to the home from which they had departed earlier in the day. Upon returning to that location, the assassin infomed Saravia, who was present, that the mission had been accomplished. Saravia then took the assassin inside the house.

17. Later, Defendant Saravia notified Major D' Aubuisson that the group's plan to assassinate Archbishop Romero had been accomplished. Additionally Saravia delivered a sum of money, which earlier had been provided to him to pay the assassin, to the assassin or his agent.

18. In furtherance of the conspirators' plan, design, and scheme to assassinate Archbishop Romero, National Police and other government officials charged with investigating the assassination failed to conduct a timely investigation, failed to collect and preserve material evidence, and failed to identify witnesses or take their statements. Just three days after the assassination, the investigating judge to whom the Romero case had been assigned, Judge Atilio Ramirez Amaya, was forced to flee the country after an attempt was made to kill him in his own home. Additionally, a witness, who had entered the Chapel of the Hospital of Divine Providence just after the assassination and witnessed the assassin's flight, was kidnapped and remains disappeared.

19. The United Nations Commission on the Truth for El Salvador and the Inter-American Commission on Human Rights conducted separate extensive investigations. The U.N. Truth Commission found that Saravia was "actively involved in planning and carrying out the assassination" because he was in charge of the operation and was involved in paying the assassin's fees. The Inter-American Commission concluded that the State of El Salvador violated Archbishop Romero's right to life. In fact, the Inter-American Commission found that, "In 1980 and 1981, death squad operations were frequently coordinated with the Armed Forces. The clandestine nature of their actions made it possible to cover up the state responsibility and to create an ambience of total impunity for the killers." Furthermore, "the death squads incorporated active members of the state security forces in their ranks and had the support of the corrresponding official institutions." The Commissions both concluded that the Salvadoran government conspired to cover up responsibility for the assassination.

20. Defendant Saravia left El Salvador in or about 1985 and first arrived in the United States in or about 1985 or 1986. In 1987, a Salvadoran court initiated a criminal proceeding against Saravia for his alleged role in Archbishop Romero's assassination and requested his extradition from the United States. Saravia was detained in south Florida on immigration grounds while the extradition proceeding remained pending. In 1988, under questionable circumstances, the Supreme Court of El Salvador ruled that the arrest order and extradition request for Saravia were invalid. The U.N. Truth Commission found that the Salvadoran Supreme Court "played an active role that served to hinder the extradition from the United States and later imprisonment of former Capt Saravia in El Salvador." After the extradition request was withdrawn, Saravia posted bond and was freed from detention. He has lived freely in the United States since that time.

21. No person has ever been held criminally responsible, let alone prosecuted, for Archbishop Romero's assassination.

22. Following U.N.-supervised elections held pursuant to the Salvadoran Peace Accords, the first democratically-elected government took office in El Salvador on June 1, 1994. Prior to that time, the military and security forces held enormous power, and any person who leveled allegations against active or former members of the military not only risked reprisal but also the futility of confronting an institution that consistently and vigorously denied that human rights abuses were committed by its members and obfuscated investigations into those abuses, Even after the Salvadoran security forces were disbanded pursuant to the Peace Accords, Salvadoran courts were still unable or unwilling to hear most claims for human rights violations against individuals for alleged involvement in financing, ordering, assisting, or carrying out death squad killings, including the assassination of Archbishop Romero. Even today, survivors of torture and relatives of killings committed by Salvadoran death squads and the armed forces as far back as the 1970's and early 1980's have declined to bring claims in El Salvador or elsewhere against the individuals responsible for fear of violent reprisals.

General Allegations

23. Unless otherwise specified below, all acts and omissions alleged by Plaintiff were carried out by Defendant Saravia and/or active or former Salvadoran military and security personnel and Salvadoran civilians living in and outside of El Salvador. One or more of these people conspired and acted in concert with Defendant Saravia pursuant to a common plan, design, and scheme to assassinate Archbishop Romero and other persons identified as "enemies" of the Salvadoran far right. Saravia knowingly joined and participated in carrying out the common plan, design, and scheme. In addition to being personally liable for his own actions, Defendant Saravia is also jointly and severally liable for the actions of the other members of D'Aubuisson's death squads, all of which were actions undertaken in furtherance of a common, plan, design and scheme to assassinate. Archbishop Romero and other persons identified as "enemies" of the Salvadoran far right

24. The actions of Defendant Saravia and his co-conspirators were committed in concert with and/or with the approval or acquiescence of Salvadoran armed and security forces.

First claim for relief
(Extrajudicial killing)

25. Plaintiff J. Doe realleges and incorporates by reference the allegations set forth above as if fully set forth herein.

26. Defendants Saravia and Does 1-10 helped plan and carry out the assassination of the decedent, Archbishop Romero, as joint tortfeasors, co-conspirators, and participants in a common plan, design, and scheme to assassinate the Archbishop. Defendants Saravia and Does 1-10 ordered, directed, procured, planned, organized, and/or aided and abetted others in effecting the common plan, design, and scheme that resulted in the murder of Archbishop Romero.

27. The assassination of Archbishop Romero was not authorized by any court judgment, and was unlawful under the laws of El Salvador that existed at that time, The decedent, Archbishop Romero, was never charged with, convicted of, nor sentenced for any crime.

28. The extrajudicial killing of Archbishop Romero was committed under actual or apparent authority, or color of law, of the government of El Salvador

29. The assassination of Archbishop Romero constitutes an extrajudicial ki1ling as defined by the TVP A. Additionally, the extrajudicial killing of Archbishop Romero constitutes a "tort, , . committed in violation of the law of nations or a treaty of the United States" under the A TCA in that it constitutes a violation of customary international law prohibiting extrajudicial killing as reflected, expressed, defined, and codified in multilateral treaties and other international instruments, international and domestic jurisprudence, and other authorities.

30. The extrajudicial kil1ing of Archbishop Romero has caused Plaintiff J. Doe pain and suffering. As a result, Plaintiff has been damaged in an amount to be proven at trial.

31. The acts and omissions of Defendants Saravia and Does 1-10 were deliberate, willful, intentional, wanton, malicious and oppressive and should be punished by an award of punitive damages in an amount to be determined at trial.

Second claim for relief
(Crimes Against Humanity)

32. Plaintiffs re-allege and incorporate by reference the allegations set forth above as if fully set forth herein.

33. The extrajudicial killing of Archbishop Romero constituted a murder committed as part of a widespread or systematic attack against a civilian population. Defendants Saravia and Does 1-10 helped plan and carry out the assassination of Archbishop Romero as joint tortfeasors, coconspirators, and pmiicipants in a common plan, design, and scheme, and ordered, directed, procured, planned, organized, and/or aided and abetted others in effecting the common plan, design, and scheme that resulted in Archbishop Romero's murder.

34. Defendants Saravia and Does 1-10 lmew or should have known that their acts were committed as part of a widespread or systematic attack against a civilian population.

35. The knowing participation of Defendants Saravia and Does 1-10 in and substantial assistance to Archbishop Romero's assassination constitutes a "tort. . .committed in violation of the law of nations or a treaty of the United States" under the A TCA in that the assassination of Archbishop Romero violated customary international law prohibiting crimes against humanity as reflected, expressed, and defined in multilateral treaties and other international instruments, international and domestic judicial decisions, and other authorities.

36. The assassination of Archbishop Romero has caused Plaintiff J. Doe pain and suffering. As a result, Plaintiff has been damaged in an amount to be proven at trial.

37. The acts and omissions of Defendants Saravia and Does 1-10 were deliberate, willful, intentional, wanton, malicious and oppressive, and should be punished by an award of punitive damages in an amount to be determined at trial.

Prayer for relief

Wherefore, Plaintiff prays for judgment against Defendants as follows:

    (a)For compensatory damages according to proof;
    (b)For punitive and exemplary damages according to proof;
    (c)For reasonable attorneys' fees and costs of suit, according to proof, and
    (d)For such other and further relief as the court may deem just and proper

A jury trial is demanded on all issues.

Dated: September 12, 2003

Heller Ehrman White & Mcauliffe Llp

By Nicholas W. van Aelstyn
Attorneys for Plaintiff J. DOE


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small logoThis document has been published on 30Apr04 by the Equipo Nizkor and Derechos Human Rights.