The Washington Office on Latin America (WOLA) warns about recent reforms to the Law Against Organized Crime approved by the Legislative Assembly of El Salvador and controlled by the ruling Nuevas Ideas party. The modifications were made within the framework of the state of emergency in force since March 2022 and apply to persons detained since then. The main reforms include:
These provisions threaten the right to access to justice, due process and the right to defense as guaranteed by international human rights treaties.
Permanent human rights violations
The initiative promoted by Nayib Bukele’s Minister of Security comes in the context of a serious deterioration in the rule of law, ongoing human rights violations and lack of access to public information. It is alarming that the emergency regime has become a permanent and unchecked citizen security policy. Since March 2022, civil society organizations have documented serious abuses such as arbitrary detentions, forced disappearances, torture, criminal proceedings without guarantees of due process, and approximately 153 deaths while in state custody.
Unsustainable security policies
The approved reforms underscore the unsustainability of the state of emergency and the current security policies of Nayib Bukele’s government. The excessive workload put on the criminal justice system has hindered its ability to effectively resolve cases. of cases. This calls into question the Salvadoran State’s ability to comply with its due diligence obligations, which includes preventing, investigating and prosecuting crimes.
The reforms authorize the grouping of defendants by criminal structure, that is, to judge collectively or en masse and not as individuals. In May 2023, the United Nations expressed concern that, as a result of the state of emergency, the de facto judiciary was already resorting to mass trials as a practice, noting that “public defenders have been given three to four minutes to present the cases of 400 to 500 detainees at a time.”
This could imply that proper criminal investigations by the Prosecutor’s Office have not been conducted and that due process and the right to defense of the 71,976 detainees has been violated. Also, in the absence of proper controls, these measures can affect people who are not part of any gang structures.
Human rights organization Cristosal, pointed out that mass trials “leave to the prosecutor’s discretion the way in which he groups the cases and before which court they will be presented, without much clarity about the elements of proof that the prosecutor will evaluate to determine if a person belongs to a certain clique or gang”.
Confessions: A risk
The reforms determine that a confession made in one proceeding can be used as evidence in other criminal proceedings to implicate other individuals under investigation. In other words, any confession made by one person about another may be considered valid evidence. While confessions are accepted as valid means of proof in Salvadoran legislation, this measure poses a risk given the allegations of torture and human rights violations committed under the state of emergency. The American Convention establishes that a confession is valid “if it is made without coercion of any kind,”and it also states that individuals shall not be compelled to testify against themselves or confess guilt.
In the context of lack of judicial guarantees and human rights violations, this provision could lead to torture, excessive use of public force and even death while in state custody.
WOLA reiterates the need to promote sustainable citizen security policies that uphold human rights and are supported by preventive measures. While atrocious acts committed by “maras or gangs” must be brought to justice it should never come at the expense of violating the right to a fair trial. Therefore we urge:
This statement has been translated from Spanish by WOLA.