IACHR Press Office
Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) stresses its call on the State of El Salvador to ensure that all measures linked to its law enforcement and prisons policies respect human rights and human dignity. Given the second extension of the country's Exceptional Framework, the Commission reminds the State of its international obligation to ensure judicial guarantees, due process, and access to judicial remedies to enable respect for rights and liberties whose suspension violates international human rights law.
Issued on May 25, Legislative Decree 396 of 2022 stipulates a second 30-day extension of the effects of Legislative Decree 333, which set up the Exceptional Framework throughout the country. The new decree extends the suspension of rights and guarantees held in Articles 7 (par. 1), 12 (par. 2), 13 (par. 2), and 24 of El Salvador's constitution, which refer to freedom of association, the right to a defense, administrative detention timelines, the inviolability of correspondence, and interventions of telecommunications.
Decree 396 states that further extensions are a possibility: "They are admissible as long as the circumstances that justified a suspension of rights continue to exist." This decree also says that the Exceptional Framework "has granted the State effective judicial tools to fight crime and terrorist groups [...] and mechanisms to conduct investigations at the levels of the police, the public prosecutor's office, and the courts that have enabled the incarceration and prosecution of several [of these groups'] leaders and masterminds."
The State informed the Commission that the need for exceptional measures was grounded in the fact that El Salvador's judicial and institutional framework is unable to contain the rising wave of violent homicides and serious public order disturbances. The State also said that the measures adopted remained proportionate, because freedom of assembly and association had not been restricted for the population at large, but only to the extent necessary to counter the illegal and illegitimate actions of members of gangs and other criminal organizations. According to data released by the Salvadoran government, April was the safest month in the country's history.
Article 27.1 of the American Convention says that, in case of war, public danger, or other emergency that threatens the independence or security of a State Party, 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 American Convention also lists in Article 27.2 a series of rights that cannot be suspended and notes that judicial guarantees that are essential to protect these rights should not be suspended either. The Inter-American Court has said in the past that suspending guarantees is not a legitimate tool to fight crime.
The Commission is concerned about extensions of rights suspensions held in the Exceptional Framework and about subsequent restrictions of human rights, as well as about the failure to adopt public policies on citizen security that integrate human rights standards as a guiding force and as an absolute limit for State interventions. The IACHR stresses its call on the State of El Salvador, so it may ensure that measures to prevent, investigate, prosecute, and punish crimes protect public security and respect human rights and judicial guarantees, preserving human dignity as an inviolable unit.
According to data issued by the National Civilian Police, more than 36,000 people had been arrested by May 31, 2022, under the Exceptional Framework. By May 25, more than 26,000 people remained in pretrial detention.
Civil society organizations have told the IACHR of a lack of accurate public data concerning the number of detainees and the places where they are being held, as well as about the people who have been released. Hundreds of relatives of alleged detainees gather around detention facilities to demand information about their loved ones' whereabouts. Civil society organizations provided worrying information about mass illegal arrests based on profiling focused on age, socioeconomic background, and physical appearance (including tattoos), as well as about a lack of information about the grounds for each arrest, restricted access to judicial defense and to the exercise of this defense, and the implementation of summary collective judicial hearings involving up to 500 suspects each. These organizations further said that the public prosecutor's office was overwhelmed by the volume of cases.
The Commission urges the State to comply with its obligation to immediately inform detainees, their families, and their legal counsel of the reasons why they are being detained. It must also notify the place of detention. This is "a mechanism to prevent arbitrary or unlawful detentions from the very moment when an individual is deprived of liberty, and also ensures the right to a defense," the Commission said. Article 7 of the Convention demands prompt and effective court supervision of conditions of detention, to protect detainees. The Inter-American Court has said that the right to an effective remedy before independent and impartial national judges or courts of competent jurisdiction is one of the main pillars not only of the American Convention, but also of the rule of law in all democratic societies.
Judicial guarantees and judicial protection must be enforced for all individuals in all circumstances related to deprivation of liberty, including under a state of emergency. This is because judicial guarantees and judicial protection are tools to safeguard individual rights to life and personal integrity, to prevent forced disappearance, and to ensure protection from torture and other cruel or inhuman treatment or punishment, as noted by the Inter-American Court.
The IACHR further expresses its concern about the appalling conditions of detention allegedly faced by detainees, as seen in the Commission's on-site visit to El Salvador in 2019. The IACHR noted deficient infrastructure, unhealthy conditions, lack of hygiene, insufficient medical care, and inadequate access to water in detention facilities. The situation has allegedly got worse under the Exceptional Framework and entails serious risks for the lives and integrity of individuals in State custody. According to information provided by civil society, these conditions mainly include overcrowding, negligent medical care, insufficient access to food, a lack of contact with the outside world caused by the suspension of visits and calls, and exposure to ill-treatment including beatings and the use of pepper spray.
According to publicly available reports, at least 21 detainees—including at least 15 who had been incarcerated under the Exceptional Framework—died over the period April 3–May 29. One of these detainees was a person with disabilities. Of the dead, 14 were being held at the Izalco prison in Sonsonate, three at La Esperanza prison in San Salvador, and one at the Quezaltepeque prison in La Libertad. At least 10 of these individuals—including the person with disabilities—were beaten to death and five allegedly died of pulmonary edema. In two further cases, relatives suspect homicide. Two people are believed to have died for lack of access to medication they needed.
States are the guarantors of the rights of all persons who are deprived of liberty and have an inescapable legal obligation to take concrete action to protect the lives, health, and integrity of all individuals in their custody. States' obligation involves taking adequate and effective measures to prevent all situations that might put the rights of individuals in its custody at risk. They include actions to prevent violence (including ill-treatment) and the provision of timely and appropriate healthcare services. Concerning individuals with disabilities, States must take specific action with a differentiated approach, considering the particular conditions faced by these individuals that might increase their risk of suffering violence and discrimination while in detention.
Finally, the IACHR calls on the Salvadoran State to take measures to reduce overcrowding, by implementing alternatives to deprivation of liberty, and to provide dignified conditions of detention, ensuring sufficient, good-quality food, and enabling detainees to remain in contact with the outside world through regular visits and calls. The Commission further urges the Salvadoran State to investigate these deaths promptly, seriously, and impartially, to identify and punish the people responsible for them, to provide reparations to victims, and to take all necessary measures to prevent more deaths of individuals in State custody.
The IACHR acknowledges the fact that Salvadoran society has endured high levels of violence for many years. As the Commission documented in its on-site visit, some areas lacked adequate institutions to deal with criminal structures, which controlled the daily lives of residents through threats and extorsion as well as engaging in violence with their enemies. The Commission commends the Salvadoran State for making law enforcement a priority. However, it notes that in all democratic societies where the rule of law is paramount law enforcement efforts need to respect human rights and comply with the applicable international obligations.
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.