IACHR Urges El Salvador to Ensure that Law Enforcement and Any Exceptional Measures Comply with Human Rights

April 20, 2022

The Inter-American Commission on Human Rights (IACHR) urges the State of El Salvador to ensure that actions to prevent and punish crime and delinquency are implemented within limits and procedures that guarantee public security and respect for human rights and human dignity. The State must ensure judicial guarantees and due process in all circumstances, including under state of emergency.

On March 27, the country’s Legislative Assembly issued Decree 333—Exceptional Framework. The decree suspends for 30 days all rights and safeguards held in the Salvadoran constitution concerning freedom of association and assembly, protection from arbitrary or abusive interference with the private sphere, and judicial guarantees. This government initiative says that a state of emergency is being declared based on the “serious violations of law and order by criminal gangs that attack the lives, peace, and safety of the Salvadoran people.” The decree followed a significant increase in the number of violent deaths, with more than 92 since March 25.

The IACHR stresses its repudiation of the increase in the number of violent deaths in El Salvador and expresses its solidarity with the affected families. The Commission also notes that victims and their families must play central roles in all measures for truth, justice, and redress.

In this context, the National Civilian Police and the Armed Forces have conducted national law enforcement raids that had led to at least 9,600 arrests by April 12. Human rights organizations and the media have reported that many of these arrests were unlawful and arbitrary and involved the use of violence, as well as being based on subjective perceptions about criminal gang membership and profiling based on physical features, age, or place of residence. Human rights organizations and the media also said that suspending certain judicial guarantees had prevented access to the reasons for these individuals’ deprivation of liberty and had denied them access to legal counsel and family contact. The reports said that these detainees were being directly taken to penitentiary facilities, given that police facilities were overcrowded.

For its part, the State indicated that, to guarantee the rational and proportional use of force during the State of Emergency, a General Supervision Plan has been created within the National Civil Police in application of Legislative Decree No. 333, as well as a ten-step manual on the use of force in a State of Emergency. He also pointed out that all arrests made are subject to judicial control.

On March 30, at the executive’s request, the Legislative Assembly passed a set of reforms of criminal and procedural legislation that established aggravating circumstances and penalties of up to 45 years in prison for crimes linked to organized crime. These reforms consider prison applicable to adolescents, with penalties of up to 20 years in prison for offenders over the age of 16 and up to 10 years in prison for offenders over the age of 12. The new legislation removes prior legal caps on the duration of prison sentences and pretrial detention for certain crimes. The reforms say that judicial officers in criminal law contexts may remain anonymous, as a “protection measure,” in virtual or in-person hearings and other administrative and judicial proceedings.

Given this suspension of judicial guarantees, the Inter-American Court of Human Rights has said that, while the State has the right and the obligation to preserve security and ensure law and order, its power cannot be infinite. The State must always apply proceedings in line with the laws in force and respect the fundamental rights of all individuals under its jurisdiction. Article 27.1 of the American Convention on Human Rights enables the suspension of State obligations “to the extent and the period of time strictly required by the exigencies of the situation,” provided the new measures are consistent with the State’s international obligations and do not involve discrimination.

The Court has also said that States have the obligation to ensure that all judicial guarantees which are vital to protect the rights and liberties held in the Convention are always in force, whatever the circumstances, even under states of emergency. Judicial proceedings that are usually considered adequate to enable the full exercise of rights and liberties—set to be different depending on the rights involved—are regarded as vital. These guarantees are the ones mentioned in the Convention, explicitly in Articles 7.6 and 25.1, in the framework and principles of Article 8, and in dispositions concerning the preservation of the rule of law, even under exceptional circumstances derived from a suspension of guarantees. These vital judicial guarantees need to remain in force to validate whether such measures are necessary, reasonable, and proportionate.

Por otra parte, la Comisión ha señalado que las políticas centradas en la represión punitiva a través del sistema penal no abordan las causas subyacentes a la violencia y recomendó el diseño e implementación de políticas públicas integrales en materia de seguridad ciudadana con mecanismos de evaluación y rendición de cuentas, con amplia participación ciudadana. Tales políticas deben contemplar la implementación de actividades operativas de prevención y disuasión de hechos violentos o delictivos, y la generación de capacidades en inteligencia policial para un adecuado trabajo de prevención de situaciones de violencia y criminalidad. El Estado indicó que ejecuta el Plan de Control Territorial, el cual pone la seguridad pública como un tema de prioridad nacional en coherencia con la visión de centralidad humana.

On the other hand, the Commission has pointed out that policies focused on punitive repression through the criminal justice system do not address the underlying causes of violence and recommended the design and implementation of comprehensive public policies on citizen security with mechanisms for evaluation and accountability, with broad citizen participation. Such policies should include the implementation of operational activities for the prevention and deterrence of violent or criminal acts, and the generation of police intelligence capabilities for an adequate prevention of violence and crime. The State indicated that it is executing the Territorial Control Plan, which places public security as a national priority in coherence with the human central vision.

Preserving public order and citizen security should be reserved for civilian police institutions. Any involvement of the Armed Forces in law enforcement tasks needs to be extraordinary, temporary, subordinate, and supplementary to the work of civilian institutions, as well as regulated and audited by competent, independent, and technically suitable civilian institutions.

The Inter-American Commission urges the Salvadoran State to exercise a conventionality control over legislative reforms concerning criminal law and the law of criminal procedure, and particularly juvenile justice. The Commission stresses that, for adolescents, deprivation of liberty must be a measure of last resort and only for the shortest possible period.

Finally, the IACHR urges the State of El Salvador to investigate anyone found responsible for human rights violations, ensuring due process and the utmost respect for judicial guarantees. The Commission further urges the Salvadoran State to adopt a comprehensive citizen security policy that is grounded on the protection of human rights.

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.

No. 082/22

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