IACHR Calls on El Salvador to Reestablish Rights and Guarantees Suspended a Year Ago Under the State of Emergency

April 6, 2023

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) has called on the State of El Salvador to reestablish the full exercise of the rights and guarantees that have been suspended over the last 12 months as part of the emergency regime that was established in the country to promote citizen security. The IACHR urged the State to respect human rights when adopting measures to prevent, control, and respond to crime, and when investigating, prosecuting, and sanctioning criminal activities.

On March 15, 2023, the Legislative Assembly decreed to extend the state of exception established through Legislative Decree No. 333 of March 27, 2022, for the 12th consecutive time. According to the regulations, the rights and guarantees established in article 12, paragraph 2, and article 13, paragraph 2, of the Constitution of El Salvador remain suspended. The first of these provisions concerns the right of detainees to be immediately and fully informed of their rights and the reasons for their arrest and the right not to be forced to testify and to have legal counsel during the proceedings of auxiliary judiciary bodies and other judicial proceedings. The second provision stipulates that the maximum period of detention without trial is 72 hours, during which time the State must implement the relevant proceedings to assign any detainee to a competent judge. The decree also suspends article 24 of the Constitution, which guarantees the secrecy and inviolability of all manner of correspondence, except under terms established by law, as well as the consequences of the illegal interception of telecommunications.

The explanatory memorandum for the decree states that "the extraordinary measures affecting rights [...] need to remain in place to enable the State to carry out the appropriate operational activities and continue providing security in response to the threat posed by criminal organizations and their members [...]." It also states that "the actions need for this purpose [the eradication of criminal structures] go beyond standard public security strategies that are implemented to contain common crime." The IACHR has been informed that the country has achieved an unprecedented reduction in crime in recent months: according to the Minister of Justice and Public Security, some 317 days had gone by without homicides as of March 9, 2023. However, the IACHR has warned the State of El Salvador that the suspension of rights and guarantees is an inappropriate mechanism for containing common crime, especially when applied indefinitely.

On this point, the IA Court has warned that the American Convention on Human Rights (ACHR) authorizes the suspension of certain rights and freedoms under exceptional circumstances and "for a period of time that is strictly limited to the requirements of the situation." According to article 27.1 of the ACHR, States may resort to this provision only "time of war, public danger, or other emergency that threatens the independence or security of a State Party." Likewise, even under the emergency circumstances contemplated in article 27.1 of the ACHR, governments do not have absolute power to establish restrictive measures. To achieve this, the State's actions must always be framed within the international human rights obligations it has committed to voluntarily. The IACHR noted that it is the State's duty to ensure that the judicial guarantees that are indispensable for the protection of the rights and freedoms enshrined in the ACHR remain in force under all circumstances, including during states of emergency.

The IACHR has been informed that at least 65,795 people have been detained since the state of exception has been in force, allegedly in connection with organized crime, and nearly 90% of these detainees are still being held in pretrial detention, according to public information as of March 1. On this point, it has repeatedly expressed its concern over the multiple allegations of abuse of authority and irregularities during arrests and judicial proceedings, as well as violations of detainees' human rights. It has also urged the State to guarantee due process, fair trial, and judicial protection, as well as the dignified treatment of all people in State custody.

The IACHR acknowledged the challenges that the State is facing in performing its duty of protecting the population from the high levels of violence in the country caused by the activities of criminal organizations such as gangs. However, the State must ensure that its efforts to combat crime and violence comply with the limits set out in international human rights protection systems in accordance with the principles of the rule of law. This applies to both prevention and response mechanisms within any citizen security policy.

The human rights perspective enables stakeholders to address the problem of crime and violence and their impact on citizen security by strengthening democratic participation and implementing policies that focus on protecting humankind. Consequently, the IACHR called for the State of El Salvador to adopt the necessary measures to reestablish the rights and guarantees that have been suspended and once again expressed its willingness to visit the country and provide technical collaboration for implementing inter-American human rights standards.

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. 058/23

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