LEGAL ASSISTANCE IN CRIMINAL MATTERS

 

Article 182, paragraph 3, of the Constitution establishes the powers of the Supreme Court regarding legal assistance or judicial cooperation, which are: “Hearing the cases of prisoners and cases that are not reserved for a different authority; ordering the dispatch of letters rogatory requesting that proceedings be carried out abroad and ordering letters rogatory received from other countries to be executed, without detriment to the provisions of treaties; and granting extradition.”

As a direct consequence of that provision, Articles 139 and 140 of the Code of Criminal Procedure establish, in turn, that: “With respect to foreign courts, the means to be used is letters rogatory. The interested magistrate or court will send the letters to the Ministry of Foreign Relations through the Supreme Court, to be handled through diplomatic channels” and “Letters rogatory from foreign courts will be processed in the cases and in the manners established in international treaties or custom and the country’s laws and the response will be sent through the Ministry of Foreign Relations”.

At present, apart from the provisions cited above, there is no domestic legislation on letters rogatory that establishes the form and requirements that need to be complied with for their issue or the way in which they will be processed in the country. Therefore, it is necessary to turn directly to international treaties in effect in El Salvador and to international custom and the direct application of domestic law.

In general, treaties on this matter contain provisions related to the scope of assistance, the designation of the central authorities, the limits of assistance, the form and content of the requests, compliance with the requests, costs, etc., and therefore actual compliance with a request for assistance is carried out in accordance with general procedural law.

Processes and procedures

El Salvador as a State of destination:

A.        Official requests made under treaties

Once a letter rogatory has been received in the country, either by the Ministry of Foreign Relations or the central authority (when the Supreme Court is not the central authority named in the treaty), it is remitted to the Supreme Court. In the first case, through the Ministry of the Interior, which is the channel of communication between the Executive Branch and the Judicial Branch,[1] and in the second case, directly.

It is the Supreme Court that determines whether the documentation presented complies with the provisions of the treaty invoked and El Salvador’s laws, after performing the necessary study.

In the event that the request is found to be in order, a Resolution is prepared by the court, ordering that it be complied with and determining which authority should take charge of the proceedings. If it is determined that the State of origin has not complied with the requisites established in the treaty or that additional information is needed, a Resolution is prepared returning the letters rogatory and describing the shortcomings or the additional information required, to enable the issuing authority to complete it.

Last, in the event that the Supreme Court determines that the request should not be complied with on grounds other than merely procedural ones, and which are envisaged in the treaty itself, it will prepare a substantiated Resolution to be signed by the full court, refusing the request for assistance presented by the State of origin.

Once the judicial proceedings ordered by the Supreme Court have been carried out by the national authority chosen by the court based on the nature of the request for cooperation, the authority remits the file again to the Supreme Court, which revises the proceedings. In the event it determines that the judicial proceedings ordered have not been duly carried out, it returns the file to the national authority to carry them out in full. In the event it determines that the judicial proceedings were duly carried out, the court issues a Resolution ordering that the request for cooperation be returned to the authority that issued it.

In any case, when El Salvador, as the State of destination, returns the request for legal assistance, either because it was duly carried out, suffers from some omission, additional information is needed, or it was refused, any of the following means can be used:

1.                  If a central authority is used in accordance with the treaty, there are two options. If the Supreme Court is the central authority, the processed request for assistance is sent directly to the central authority of the State of origin; if the Supreme Court is not the central authority, the processed request for cooperation is sent to the Salvadoran central authority for forwarding to the central authority of the State of origin.

2.                  If the treaty calls for using diplomatic channels, the request will be remitted to the Salvadoran Ministry of the Interior which will forward it to the Ministry of Foreign Relations which, in turn, will remit it to the State of origin, either through its embassy in that country or through the State of origin’s embassy in El Salvador.

B.         Official requests not made under treaties

As mentioned, Article 182 (3) of the Constitution establishes that the power of the Supreme Court in this field is to order that “letters rogatory be sent to carry out proceedings outside the country and order those received from other countries to be processed, without detriment to the provisions of treaties ….”

As a direct consequence of the above, Article 140 of the Code of Criminal Procedure establishes that: “Letters rogatory from foreign courts will be processed in the cases and in the manners established in international treaties or custom and the country’s laws and the response will be sent through the Ministry of Foreign Relations”.

Therefore, in cases in which there is no treaty in effect, the Supreme Court will have to apply international custom and the country’s laws to determine whether or not to admit a request presented to it.

In the event the request is found to be in order, the Supreme Court issues a Resolution of the plenary court ordering that it be complied with and determining which authority should take charge of the proceedings. If it is determined that the State of origin has not complied with the minimum requisites established in international custom or the general legislation in force in El Salvador, a Resolution is prepared, which must also be signed by the plenary court, returning the letters rogatory and describing the shortcomings or the additional information required, to enable the issuing authority to complete it. Last, in the event that the Supreme Court determines that the request should not be complied with on grounds other than merely procedural ones, it will prepare a substantiated Resolution to be signed by the full court, refusing the request for assistance presented by the State of origin.

Once the judicial proceedings ordered by the Supreme Court have been carried out by the national authority chosen by the court based on the nature of the request for cooperation, the authority remits the file again to the Supreme Court, which revises the proceedings. In the event it determines that the judicial proceedings ordered have not been duly carried out, it returns the file to the national authority to carry them out in full. In the event it determines that the judicial proceedings were duly carried out, the court issues a Resolution ordering that the request for cooperation be returned to the authority that issued it.

The request is then returned to the State of origin through diplomatic channels, i.e. it is remitted to the Salvadoran Ministry of the Interior, which forwards it to the Ministry of External Relations, which, in turn, will remit it to the State of origin, either through its embassy in that country or through the State of origin’s embassy in El Salvador.