El Salvador: The Government cannot trample on the right to a fair trial in the name of public safety

Three UN experts on human rights* manifested alarm for the renewal of the state of emergency in El Salvadorin force since March 27, 2022 and decreed by President Nayib Bukele after an escalation of murders committed by gangs, which left almost 90 dead.

In a statement, the special rapporteurs stressed that while the government has an obligation to protect citizens from such heinous acts, it cannot trample on the right to a fair trial in the name of public safety, and called for an immediate repeal of the state of emergency and a review of the sweeping new powers granted to address the Central American nation’s gang problem.

“The prolonged state of emergency, together with legislation that allows for increased surveillance, broader prosecution, and faster determination of guilt and sentencing, carry the risk of massive violations of the right to a fair trial”, the experts warned.

They also stressed that the people apprehended in “this Salvadoran government dragnet” must be guaranteed the enjoyment of their rights.

arbitrary arrests

According to official figures, in September 2022, 58,000 people had been detained, including 1,600 minors, under the emergency regime, and last March the number of detainees reached more than 67,000.

The information available to the rapporteurs indicates that many of these arrests are arbitrary and some constitute forced disappearances Of short duration.

Faced with these abuses, they called on the authorities of El Salvador to guarantee that people are not arrested without sufficient legal authorization on mere suspicion belonging to or being associated with a gang.

In October 2022, the rapporteurs presented to the Government of El Salvador a written in which they urged “review and reconsider the application of the state of emergency and carry out an independent analysis of the legislative modifications adopted” to ensure their adherence to international human rights standards.

After expressing their concern about the support that the government gives to the concept of “permanent flagrant crime” to favor the arrests without a judicial order of people suspected of belonging to gangs, they advocated respect for the fundamental guarantees stipulated in international human rights laws. regarding due process for all detainees.

mass trials

According to the information received, the initial hearings, in which judges review the legality of an arrest and decide on charges and pretrial detention, are held in groups of up to 500 people, while defense attorneys have three to four minutes to present the cases of 400 to 500 detainees at a time. Mass trials have also been reported.

“Mass hearings and trials, often conducted virtually, undermine the exercise of the right to defense and the presumption of innocence of the detainees”, the experts pointed out and added that “the excessive use of preventive detention, the prohibition of alternative measures, trials in absentia and the possibility of using practices such as ‘faceless judges’ and reference witnesses, threatens the guarantees of due process”.

The poorest are the most affected

The rapporteurs pointed out that thousands of families have been financially affected by having to incur additional expenses to defend their loved ones and provide them with well-being, health and safety, and warned that the current measures “threaten to criminalize people living in the most impoverished areas and that they have been targeted by gangs in the past.”

Finally, they stated that the level of disruption and interference in the Salvadoran justice system risks limiting access to justice for all people in El Salvador, adding that it generates undue delays in both civil and criminal proceedings. , has a negative impact on the guarantees of due process and on the protection against torture and the right to life, in addition to the fact that it can lead to an increase in overcrowding in prisons and detention centers.

The signatory rapporteurs of the statement are: Margaret Satterthwaite, Special Rapporteur on the Independence of Judges and Lawyers; Fionnuala Ní Aoláin, special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; Morris Tidball-Binz, special rapporteur on extrajudicial, summary or arbitrary executions.

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