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IACHR and UN expert reject legislative reforms that remove judges and prosecutors in El Salvador and calls for respect of guarantees for judicial Independence

September 7, 2021

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Washington, D.C. — The Inter-American Commission on Human Rights (IACHR) and the United Nations Special Rapporteur on the Independence of Magistrates and Lawyers reject recent reforms to the Judicial Career Law and the Organic Law of the Attorney General's Office in El Salvador and urge the State to respect the guarantees for judicial and prosecutorial independence.

The Legislative Assembly of El Salvador approved, on August 31, 2021, Decree No. 144, which establishes reforms to the Judicial Career Law, which will enter into force eight days after its publication in the Official Gazette. According to the reform approved in record time by exemption of formalities, the maximum time in the judicial career is reduced from 35 to 30 years, and the age of 60 years is established as a limit for the exercise of the magistracy. By means of this decree, it is determined that magistrates "shall immediately cease to exercise their functions in the judicial seat", with the exception of magistrates of the Supreme Court of Justice. According to publicly available information, this measure could result in the completion of the services of approximately 176 magistrates in the country.

Likewise, the decree in reference incorporates the possibility of transferring judges by agreement of the plenary of the Supreme Court of Justice when there is "the need, in a certain judicial seat, given the complexity and specialty of the matters dealt with there", while the previous legislation provided for the hypothesis of transfer only "for justified reasons of convenience of the service". The new regulation. The norm also determines that the plenary of the Supreme Court of Justice must take the pertinent measures to cover the judicial seats that become vacant, empowering it to "carry out the corresponding, necessary and indispensable transfers and appointments" in In this regard, the State indicates that "figures such as the transfer of judges and magistrates for reasons of convenience of service, state of need, retirements, among others, are aspects that were already regulated in the Law of the Judicial Career, so these are not figures that the current legislature has introduced in the normative body in question."

In addition, in the same session, the Legislative Power approved Expeditiously Decree No. 145, which modifies the Organic Law of the Attorney General's Office. The rule that would enter into force eight days after its publication, establishes the end of the prosecutor's career for persons who have completed 60 years of age, and they must "immediately cease the exercise of their functions in the organizational unit in which they are located". In turn, it establishes that the Attorney General of the Republic, "for justified reasons of convenience of the service or due to the complexity and specialty of the matters dealt with in a certain organizational unit, may order by means of an agreement, the temporary or permanent transfer of the members".

The Commission and the United Nations Special Rapporteur are concerned that the approval of such decrees that severely affect the principle of the separation of powers and the judicial independence of the organs of justice. In this sense, they warn that the legislative modifications of the current regulations, carried out in an expeditious manner and without spaces for consultation with the bodies directly affected by them, could impact both the administration of justice and the right to judicial protection of persons in El Salvador, as well as the rights and guarantees of the justice operators.

The IACHR and the UN Special Rapporteur observe that the Legislative Branch would not have the constitutional power to present a legal initiative in matters related to the Judicial Branch, given that, according to Article 133, numeral third of the Constitution of the Republic of El Salvador, the Supreme Court of Justice has exclusive attribution. In this regard, the Salvadoran State refers to the constitutional precedent of 1999 according to which the initiative of law of the Supreme Court of Justice does not exclude that of the Deputies nor that of the President of the Republic, through his Ministers, and indicates that it has adhered to this interpretation "which at the time sustained another subjective configuration of said Court".

However, both organisms take note that the Constitutional Chamber of the Supreme Court of Justice modified its criterion in such matter in 2018, by interpreting, through Unconstitutionality Ruling 6-2016/2-2016, that such exclusive attribution is intended to prevent the other Powers "from influencing the organic structure of the Judiciary, the normal functioning of its members, in the governance of the judicial system". Likewise, the IACHR and the UN Special Rapporteur emphasize that, according to Article 182.9 of the constitutional text, the Supreme Court of Justice shall appoint judges from the shortlists proposed by the National Council of the Judiciary; which must, in turn, observe the requirements and process established for entry into the career both in the constitution and in the Judicial Career Law.

In this regard, both bodies recall that the Basic Principles on the Independence of the Judiciary establish the duty of States to guarantee the irremovability of judges until they reach the age of mandatory retirement or until the term for which they were appointed or elected expires, when regulations exist in this regard. Likewise, the IACHR has pointed out to the Salvadoran State that the principle of the irremovability of judges in their positions is fundamental for judicial independence. In the same sense, the prosecutors are also protected by the guarantee of irremovability in office and to be protected against external pressures in the exercise of their work, as established by the Inter-American Court.

On the other hand, the Inter-American Commission and the UN Special Rapporteur have stressed that, although the transfer of justice operators may have a legitimate purpose and be necessary for the restructuring and efficient administration of the organs of administration of justice, transfers and rotations should not be decided arbitrarily, but should respond exclusively to objective criteria and provide an opportunity to challenge such measures. Otherwise, they could characterize covert sanctions as retaliation for their decisions or intimidation for the independent performance of their duties.

In addition, both bodies have considered that an adequate appointment and selection process is an essential prerequisite for guaranteeing the independence of justice operators. In this sense, they have agreed that the mechanisms aimed at greater publicity, participation and transparency, such as the one described above, contribute to greater certainty about the integrity and suitability of the designated operators and provide confidence to the citizenry about the objectivity of the process.

The Inter-American Commission and the UN Special Rapporteur urge the State to ensure that early retirement is a right of justice operators and not an imposition, respecting the guarantees of stability and permanence in office that judges and prosecutors must have as a fundamental aspect of their independence and the right of access to justice for the people under their jurisdiction.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate derives from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

The United Nations Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. The Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the UN's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures' experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

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