IACHR Press Office
Washington, D.C. – Seven months into El Salvador's Exceptional Framework, the Inter-American Commission on Human Rights (IACHR) is concerned about persistent and allegedly arbitrary mass arrests and about the failure to enforce judicial guarantees. The Commission therefore calls on the State to take action to ensure citizen security while protecting the rights and liberties held in the American Convention on Human Rights and in inter-American standards.
On October 14, El Salvador's Legislative Assembly further extended the Exceptional Framework until November 17, noting that "extraordinary measures remain necessary at this time to continue to implement security operations." The State told the IACHR that there had been more than 116,000 killings in El Salvador as a result of the activities of criminal gangs and their systematic violence, including 87 homicides over the period March 25–27, 2022.
While the Salvadoran State has an obligation to ensure the safety of all individuals under its jurisdiction, it must do so while fully respecting human rights and the international agreements to which it is a party. The Commission has expressed its concern about extensions of rights suspensions held in the Exceptional Framework and about the restrictions of human rights they imply. The IACHR stresses that suspending rights and guarantees is only warranted in exceptional circumstances, rather than being a means to fight regular crime, and that the State of El Salvador must ensure that all exceptional frameworks meet the criteria held in Article 27 of the American Convention. This article says that, in case of war, public danger, or other emergency that threatens a State's independence or security, it may take measures derogating its obligations under the Convention, to the extent and for the period of time strictly required by the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the grounds of race, color, sex, language, religion, or social origin.
The State said its actions comply with the constitutional, legal, and conventional frameworks the country is subjected to, and noted that the only constitutional guarantees that have been suspended are those that are closely linked to making it easier to fight crime. The State said that suspending guarantees enables its institutions to address the current circumstances and to promptly and effectively tackle "the escalating brutality of terrorist groups."
In this context, the IACHR has received repeated complaints about arrests carried out in recent months, which say that many of them have been based on anonymous calls or assumptions about membership of criminal gangs based on a person's appearance or on where they live. The families of individuals who are arrested allegedly continue to have trouble to confirm the whereabouts of these detainees. The Commission has further been informed of a disproportionate use of force in police raids, including violence against individuals with disabilities and pregnant women.
The IACHR stresses that officials in charge of law enforcement must restrict the use of force in line with the principles of proportionality, necessity, and humanity, and that, to restrict the right to personal liberty, the State must document and show in all specific cases that there is enough evidence to justify a reasonable assumption that the affected individual has engaged in criminal activity and that their arrest is strictly necessary. The IACHR also stresses that notifying a relative or other individuals with ties to the arrested person is particularly relevant to ensure that person's whereabouts and their conditions are known and to enable them to access the assistance and protection due to them.
According to the Justice and Security Ministry, 57,007 individuals have been arrested since March 27, 2022. According to the National Defense Ministry, 47,983 of them are in pretrial detention. Civil society organizations noted violations of judicial guarantees and of the right to judicial protection and reported that at least 18,215 individuals had been charged with crimes in 93 group hearings. These mass hearings brought together as many as 552 suspects at once, and they were all automatically put in pretrial detention without individual assessments of their cases and with no respect for the presumption of their innocence. The hearings are allegedly led by unidentified magistrates and involve restrictions of the right to a defense, including the appointment of a single representative for hundreds of suspects and not giving suspects an opportunity to speak during hearings. The Justice and Security Ministry said that almost 850 individuals had been released between March and September.
Based on the international obligations El Salvador has voluntarily taken on, the country has a legal duty to ensure—even under its Exceptional Framework—judicial guarantees, due process, and access to adequate, effective remedies. This is important to ensure respect for rights and liberties whose suspension is not compatible with the rule of law, according to the American Convention. Further, pretrial detention is an exceptional measure that should be restricted by the principles of legality, necessity, and proportionality, and by the presumption of innocence.
The IACHR urges the Salvadoran State to ensure adequate, effective, and accessible judicial remedies for individuals who are arrested and placed in pretrial detention, in a way that enables them to access justice in connection with any of their rights that may be affected by the illegal or arbitrary implementation and extension of those measures. The Commission stresses the need to immediately restore liberty or to take measures that are less harsh in cases where pretrial detention is not warranted.
The IACHR is particularly concerned about the deaths of at least 73 detainees under the Exceptional Framework, according to the Institute of Forensic Medicine, and about allegations of torture and ill-treatment in facilities run by the State. The Commission calls on the State to take action to prevent violence and to investigate these allegations with due diligence in order to provide full redress to the victims.
At a hearing during the IACHR's 185th Period of Sessions, civil society organizations denounced overcrowding and poor conditions of detention and noted lack of access to healthcare, inadequate food, constant stays within cells, and lack of communication with families. These organizations indicated very unsanitary conditions and cases where detainees must relieve themselves in buckets that remain inside the cell until they are full. This situation is allegedly made worse by the lack of differentiated treatment in line with each detainee's specific characteristics.
The State said it had adopted a protocol for penitentiary staff to address the impact of the Exceptional Framework, in order to ensure the human rights of individuals who are deprived of liberty, and a system to provide information to the families of detainees. The State also reported on the efforts it had made to identify detainees with specific health issues and to provide suitable care. It noted that the supplies and medication families take to detainees are handed over to the relevant individuals. Further, the State said it was improving the infrastructure and the sanitary conditions in existing penitentiaries.
The State also stressed that it had acted in compliance with the recommendations made by its Office for the Defense of Human Rights and that it had invited this institution to inspect police raids and penitentiary facilities and to issue a report in keeping with its constitutional and judicial mandate.
The Commission notes the measures taken by the State. Based on its , the IACHR stresses that the Salvadoran State has a duty to ensure minimum standards in conditions of detention (to protect the rights to life, health, and integrity of all individuals in its custody) and to take action to reduce the number of individuals who are deprived of liberty in the country. In particular, the Commission stresses the State's obligation to ensure access to sufficient, sanitary water that enables detainees to meet their daily needs, to sufficient adequate food, and to direct personal contact with their families, legal counsel, and other individuals.
The State told the IACHR that it had adopted and maintains a state of emergency to respond to the violence and the complexities of the gang phenomenon, whose crimes are not common crimes. The State further noted the historical and recent impact of the criminal activities of maras and other gangs on the country, and stresses the significant reduction in crime rates since the Exceptional Framework was first implemented.
The Commission acknowledges the context of violence and crime linked to organized crime and gangs in El Salvador, which restricts and hampers the enjoyment of human rights in the country. However, public policies about public security need to give effective and efficient answers to the demands of a democratic society, with a comprehensive approach to the causes and consequences of crime and in strict compliance with the restrictions imposed by international and inter-American human rights standards. The IACHR stresses that all citizen security and penitentiary policies must comply with the normative framework and with the interpretative standards developed by the leading institutions of the Inter-American Human Rights System.
Given the serious allegations made over more than seven months with the Exceptional Framework in place, the Inter-American Commission stressed its willingness to conduct a visit to El Salvador and to provide technical support to the State to ensure the implementation of inter-American standards.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.