Freedom of Expression

Press release R80/22

The Office of the Special Rapporteur warns of the risk of criminalization of legitimate exercises of freedom of expression in El Salvador as a result of legislative reforms

April 13, 2022

Washington D.C. - The Office of the Special Rapporteur for Freedom of Expression of the Inter-American Commission on Human Rights (IACHR) warns of the risk of severe criminalization of legitimate exercises of freedom of expression in El Salvador following the approval of reforms to the Penal Code and the prohibitions specifically aimed at the media in the Gang Prohibition Law. In this regard, it calls on the State to bring its legislation into line with Inter-American human rights standards on freedom of expression.

On April 5, the Ministry of Justice and Public Security presented bills aimed at "repressing and dissuading individuals from illegitimately using the right to freedom of expression" in a way that could "directly affect public order". The reforms were approved the same day without further parliamentary deliberation. These reforms take place in the context of a state of exception in force since March 27, adopted by the Government in response to the increase in homicides attributed to criminal groups, which between March 25 and 27, 2022, would have amounted to at least 87 people killed. The state of emergency has limited the right of assembly and association, the inviolability of correspondence, the right of defense, and has modified the time limits for administrative detention.

The IACHR has monitored the complex citizen security situation in El Salvador for years in a sustained and close manner. In 2004, the Commission recognized the right and obligation of the State of El Salvador to ensure public security and emphasized that the fulfillment of this duty is not incompatible with respect for human rights. Likewise, in the recent country report on the "Human Rights Situation in El Salvador", the Commission confirmed that the serious phenomenon of violence and insecurity has constituted one of the main issues of concern in the country, and recognized progress in security indexes during the 2019-2020 period. For this Rapporteurship, the increase in violence is a matter on which the authorities are obliged to take both measures and precautions so that the institutional deployment does not restrict the exercise of rights of people who exercise legitimate activities in society and of special importance for democracy.

According to the information available, through the reform of the Penal Code, prison sentences of 10 to 15 years would be imposed to those who elaborate, facilitate or manufacture any form of visual expression that "explicitly or implicitly" transmits "messages, signs, denominations, propaganda or any type of written manifestation" that "alludes" to the different criminal groups or gangs. Likewise, the law sanctions with the same penal scale those who, by means of the use of technologies or media, reproduce and transmit messages or communications "originated or presumably originated" by criminal groups that could "generate anxiety and panic" in the population. On the other hand, the amendment to the Gang Prohibition Law expressly prohibits the media from reproducing and transmitting messages originated by criminal groups that could "generate anxiety and panic" in the population. This Office considers that the breadth and vagueness of the terms used to describe the prohibited conducts conflict with international standards that require that any limit to freedom of expression be expressly, specifically and clearly set forth in the law. The aforementioned ambiguity of the wording makes it difficult to distinguish between expressions that are punishable and those that are not. Thus, for example, the criminalization of any type of visual expression that "implicitly" alludes to criminal groups may conflict with what the Inter-American Court has stated regarding "the use of strict and unambiguous terms that clearly delimit punishable conduct" in the drafting of criminal offenses.

According to the criteria of the State, the reforms adopted in both bodies of law "are clear and specific" and "none of them leads to vagueness of interpretation, rather, they send a strong message to the groups that operate outside the Law about the limits of their actions". On the other hand, it has indicated that it will be up to the judiciary to know in each particular case and to make the factual and legal assessments to verify if the requirements of the criminal type are met. In this sense, they point out that "it is precisely the margin of valuation that allows the judge to evaluate human conduct in the context of compliance or non-compliance with the rules of social coexistence". On this point and in relation to the aforementioned vagueness of the punishable conducts, the Special Rapporteurship is concerned about the discretionary margin to interpret, for example, "implicit" messages and analyze whether they violate the norm.

The State has pointed out that the right to freedom of expression is a constitutionally recognized right, but that it is not absolute in nature, but rather has limits such as public order. However, the Inter-American system has understood that although public order is a legitimate objective for which subsequent responsibilities can be established, it cannot be invoked to suppress a right guaranteed by the American Convention, denaturalize it or deprive it of its real content. On the contrary, as this Rapporteurship has already emphasized, "the invocation of public order as a justification for limiting freedom of expression must obey real and objectively verifiable causes, which pose a certain and credible threat of a potentially serious disturbance of the basic conditions for the functioning of democratic institutions".

The State informed this Office that the punishable conducts targeted by these laws "are far from the informative work of the media. In this regard, the State's representatives pointed out that proof of this is that, to date, seven days after the reforms came into force, "the media have continued to publish on a variety of platforms and social networks on the subject of gangs in El Salvador and there has been no prosecution whatsoever. Likewise, they report that neither judicial nor administrative proceedings have been initiated against the media as an institution, nor individually against its members.

For the Rapporteurship, the present reforms, as they were drafted, activate risks of severe criminalization of legitimate activities in society and of special importance for democratic life, such as journalism, the defense of human rights, parliamentary activity, academic research, among others. All these activities require guarantees of freedom of expression and as a whole contribute to society being informed about its environment and being able to participate freely in the decisions that impact it. The democratic understanding of matters of general interest -including citizen security- requires legal certainty so that people can participate freely and in an informed manner in matters that concern them as a society without fear of being criminalized.

On the other hand, the Rapporteurship's attention is drawn to the fact that prior to these reforms, domestic legislation already contemplated crimes that pursued similar objectives, such as that provided for in Article 349 on apology for crime, the wording of which coincides with the explanatory memorandum presented in the bill of April 5. Additionally, the Salvadoran Constitution recognizes that human rights treaties prevail when there is a conflict with the law. Finally, the Rapporteurship notes that in the public conversation surrounding these reforms, different authorities have made statements suggesting similarities between journalistic work on public security and speeches not protected by international law, such as propaganda in favor of war and hate speech, including references to Nazism. However, there are no references in the explanatory memorandum or in the articles that allow concluding that the speeches that are sought to be combated have any similarity with those that represent war propaganda, hate speech or incitement to genocide, at the threshold required by international human rights law for this type of unprotected speeches.

The Office of the Special Rapporteur for Freedom of Expression will activate the corresponding channels with the State to present its concern in detail, listen to the State's representation and share relevant inter-American standards to address the situation described here. This Office emphasizes its duty to deploy the mandate to stimulate the defense of the right to freedom of expression in El Salvador, and thus contribute to assess the risks of criminalization of legitimate speech posed by the legislation under analysis. However, the Rapporteurship notes that the aforementioned concerns about the potential impact on legitimate exercises of freedom of expression should not be understood as an endorsement of speech that encourages or promotes violence and discrimination.

The Office of the Special Rapporteur for Freedom of Expression is an office created by the Inter-American Commission on Human Rights (IACHR) to encourage the hemispheric defense of the right to freedom of thought and expression, considering its fundamental role in the consolidation and development of the democratic system.