In Dialogue with El Salvador, Experts of the Committee against Torture Praise Domestic Violence Legislation, Ask about the State of Emergency and Torture Complaints
The Committee against Torture today concluded its consideration of the third periodic report of El Salvador, with Committee Experts praising the State’s domestic violence legislation and raising questions about the state of emergency and torture complaints.
Ana Racu, Committee Vice Chairperson and Co-Rapporteur for El Salvador, commended El Salvador for the adoption of important legislation on domestic violence, such as the act on equality, equity and the elimination of discrimination against women, the special act against trafficking in persons, and the special comprehensive act on a violence-free life for women.
Claude Heller, Committee Chair and Co-Rapporteur for El Salvador, said that faced with the growth of crime and the number of murders committed by gang members, the authorities had adopted a draconian set of measures. Since the state of emergency went into effect, police and military personnel had been deployed in gang-controlled areas using excessive force. More than 5,747 people were arrested without warrants and some were allegedly subjected to cruel or degrading treatment. The situation worsened last May with multiple murders, which led the authorities to harden their policy with mass arrests that would exceed 46,000 people within 110 days, necessitating the construction of a new prison. Could official figures be provided?
Another Committee Expert said there were numerous complaints alleging torture and ill-treatment, but far fewer cases were prosecuted. On what grounds were complaints rejected? What measures were in place to properly investigate complaints, punish offenders and provide redress to victims? Under the Convention, the right to not be a victim of torture and ill-treatment could not be derogated from even in a state of emergency.
On state of emergency measures, the delegation said that 87 murders had taken place within 72 hours in March this year, the victims of which had no connection to organised crime. In response, a state of emergency was adopted on 27 March. Under this state of emergency, certain constitutional guarantees were suspended. Legal reforms had been introduced prohibiting messaging involving gangs in the media and reforming legislation on drug crimes, terrorism, organised and juvenile crimes. Some 57,000 people had been detained, 2,000 vehicles, 30,000 cell phones and 1,300,000 dollars’ worth of assets seized as part of state of emergency measures. These actions had led to a dramatic drop in the number of homicides per year.
The delegation said that 90 cases of deaths in custody had been recorded, but investigations had not found any links between these deaths and ill-treatment from police officers. Fifteen cases of alleged torture had also been recorded, and four convictions had been issued. Training was provided to prosecutors and prison staff on the Istanbul Protocol and preventing violence against women; 29,000 staff had received such training. Human rights training was also provided to all police force members in police training units on international regulations on torture. Fifty investigations were being conducted concerning enforced disappearance, and investigations were also being conducted concerning massacre, rape and torture cases.
In closing remarks, Mr. Heller said that the Committee appreciated the efforts and detailed responses of the delegation.
Adriana Mira, Deputy Minister of Foreign Affairs of El Salvador and head of the delegation, in her concluding remarks, said reparations for victims of torture were provided in a comprehensive manner. El Salvador welcomed the opportunity to share progress made in preventing torture and ill-treatment despite the difficult domestic situation. El Salvador respected its international obligations and had implemented measures to ensure the security of the State. As a result of these measures, El Salvador’s citizens were now able to walk the streets safely.
The delegation of El Salvador consisted of representatives from the Ministry of Foreign Affairs; the Ministry of Health; the Ministry of Justice and Public Security; the Legal Secretary of the President; the National Civilian Police; the Salvadoran Institute for the Development of Women; the National Council for Children and Adolescents; the Human Rights Prosecutor; the Attorney General of the Republic; and the Permanent Mission of El Salvador to the United Nations Office at Geneva.
The Committee will issue the concluding observations on the report of El Salvador at the end of its seventy-fifth session on 25 November. Those, and other documents relating to the Committee’s work, including reports submitted by States parties, will be available on the session’s webpage.
Summaries of the public meetings of the Committee can be found here, and webcasts of the public meetings can be found here. The programme of work of the Committee’s seventy-fifth session and other documents related to the session can be found here.
The Committee will next meet in public on Monday, 21 November at 3 p.m. to hear a presentation of the report of the Special Rapporteur on follow-up to articles 19 and 22 of the Convention against Torture and on reprisals.
Report
The Committee has before it the third periodic report of El Salvador (CAT/C/SLV/3).
Presentation of Report
ADRIANA MIRA, Deputy Minister of Foreign Affairs of El Salvador and head of the delegation, said El Salvador had had periods in its history marked by serious human rights violations, but had travelled a path that led to important reforms of the law and the creation of institutions to guarantee human rights. In the post-conflict era, the country had been faced with new public security challenges, including criminal groups maintaining control of territories, which had exacerbated violence. Therefore, while progress had been made, there was still much which needed to be done. National legislation outlined the crime of torture as a "crime against humanity" and in conformity with the Convention, established that all acts of torture constituted a crime. In addition to the Criminal Code, other laws provided for the prohibition of torture and other cruel, inhuman, or degrading treatment, including the Code of Criminal Procedure and El Salvador's penitentiary law, among others.
A Special Unit had been established to investigate and prosecute war crimes, which had occurred during past internal conflict in El Salvador. In 2010, the National Commission for the Search of Disappeared Children was set up and the National Commission for Disappeared Adults was established in 2017, both in the context of the internal armed conflict. A national framework for the investigation and prosecution of cases of enforced disappearances was also created, outlining three normative instruments, including protocol, instructions for search, and instructions for police action. El Salvador had a special law on migration and aliens, in force since 2020, which regulated human mobility and established the rights to request refuge, asylum and temporary residence for humanitarian reasons, among others. It included the regulation of rights and special guarantees for victims of the smuggling of migrants, asylum seekers, stateless persons and refugees, as well as persons who invoked protection for humanitarian reasons.
Public security was established as an issue of national priority, and subsequently, since June 2019, the territorial control plan was executed, with the key objectives being the recovery of territories dominated by criminal groups. The plan also focussed on the reconstruction of the social and community fabric, including actions to prevent the entry of young people into criminal structures. Criminal groups responded violently to these State actions, resulting in the deaths of at least 92 people in March this year. In response, the State declared a national emergency and adopted a regime of exception. Within the emergency regime, the State restricted only the necessary rights to contain the alarming situation of public danger, and the actions of the institutions responsible for public security were subject to control through internal mechanisms and permanent constitutional control. As part of these control mechanisms, a general supervision plan was created, which included the guidelines of international standards, with a special focus on police action in an emergency regime.
The Office of the Procurator for the Defence of Human Rights of El Salvador was also a mechanism for guaranteeing the human rights of citizens within the framework of the emergency regime, and was also required to carry out a verification of the conditions of persons deprived of liberty in detention centres nationwide. Ms. Mira hoped that the dialogue with the Committee would make it possible to detail the progress El Salvador had made to advance the implementation of the Convention.
Questions by Committee Experts
CLAUDE HELLER, Committee Chairperson and Country Co-Rapporteur for El Salvador, said the Committee was aware of the exceptional conditions of internal armed conflict which had gripped El Salvador from 1980 to 1992, and its subsequent aftermath. The Office of the National Human Rights Advocate had a broad mandate to oversee human rights, exercising its prerogatives nationwide, and was protected against all threats. What impact had the Office had on the work of the Government? Was the figure of the Presidential Commissioner for Human Rights still in operation? There was a need to strengthen the Office’s human rights mandate and make sure it was fully resourced; this was an important issue to address. How far had El Salvador progressed in ratifying the Optional Protocol?
The Committee was concerned that the National Commission for the Search of Disappeared Children and the National Commission for Disappeared Adults were not properly resourced; progress needed to be made in this area. What was preventing El Salvador from enacting proper laws which led to the proper conviction of perpetrators of crimes violating human rights? An obstacle to justice and repartition was the inability to access military archives from the period of the armed conflict; there were several high-profile cases where soldiers had committed mass rapes and murder but where the military files could not be accessed. In all cases, there was a duty to investigate and punish perpetrators. According to the information provided to the Special Rapporteur on the Promotion of the Truth, of the 148 cases registered by the Office of the Prosecutor, 102 of them had not been investigated, and none of the cases had been brought to trial. Could the delegation comment on this issue? Had the truth and reparation objectives been met?
Mr. Heller said that since the end of the armed conflict in 1992, El Salvador had been one of the countries with the highest crime rates in the region. In 2015 the historical record of 103 homicides per 100,000 inhabitants was reached, which represented one of the highest rates globally. The phenomenon of violence was related to the activities of different criminal organizations, mainly the so-called maras and other gangs, with around 60,000 individuals involved, who had the social backing of around 500,000 people, amounting to eight per cent of the total population of El Salvador. Could more information be provided regarding the number of individuals who were members of these criminal organizations? The Committee was concerned that the gangs were being classified as terrorist groups, and as a result, detentions for terrorist activities had dramatically increased between 2016 and 2019. Could clarification on this be provided, particularly in relation to the definition of terrorism?
Faced with the growth of crime and the number of murders committed by gang members, the authorities had adopted a draconian set of measures. Since the state of emergency went into effect, police and military personnel had been deployed in gang-controlled areas using excessive force. More than 5,747 people were arrested without warrants and some were allegedly subjected to cruel or degrading treatment. The situation worsened last May with multiple murders, which led the authorities to harden their policy with mass arrests that would exceed 46,000 people within 110 days, necessitating the construction of a new prison. Could official figures be provided?
Mr. Heller said the President had ordered the decree of maximum emergency in all maximum-security prisons and food rationing; 63 deaths of people in custody had been recorded during the state of emergency, including some who died from torture, or lack of medical care. Mr. Heller reminded the Government of its obligation under the Convention that no exceptional circumstances could be invoked, even during a state of emergency, as a justification for torture. There had been significant criticism of the security measures, which violated the human rights of detainees.
Concerns were also expressed about the increase in the number of people killed by the National Civil Police and Armed Forces. Between 2013 and 2019, only eight convictions of police officers prosecuted for homicide were achieved, with the majority of cases being archived or dismissed by the prosecutor's office. According to reports, between 2015 and 2020, police committed 179 extrajudicial executions during armed confrontations with gang members. In 25 cases, convictions were handed down for these acts. Could the delegation comment on this? There was a need to promote changes in the institutions of justice and public security and to prevent human rights violations committed by the security forces. Could information on the number of complaints and the investigations and prosecutions of violent crimes be provided?
Mr. Heller said El Salvador had a complex migration situation, with an estimated 42,800 migrants in the territory. There was concern that the policies were focused on containment, detention and expulsion. What mechanisms had El Salvador created to address this problem? What investigations had been undertaken to ensure the rights to truth and justice to migrants and their families? According to the United Nations High Commissioner for Refugees, between 2010 and October 2020, the number of internally displaced persons was around 71,500, most fleeing gang and security force violence. What measures had been taken to address the comprehensive protection of victims of violence, pursuant to the guiding principles of internal displacement? It was key to address the policy of mass detention; were there alternative sentencing options? What were the rehabilitation efforts?
ANA RACU, Committee Vice Chairperson and Co-Rapporteur for El Salvador, said the Committee understood the challenges El Salvador was going through. The Committee welcomed the fact that various law enforcement agencies, judges and prosecutors had received training on human rights. How many had received training on the requirements of the Convention during the past four years? Did the medical personnel dealing with prisoners receive training on the Istanbul Protocol? Had the impact of this training been assessed? Had training been provided on the prevention of torture to military officers and security guards, and if so, how many? The Committee was concerned whether access to a lawyer was ensured promptly following deprivation of liberty. How did the State party intend to ensure that the police provided safeguards against torture to persons deprived of their liberty? How was access to a lawyer being implemented in El Salvador? How many lawyers were available to detainees as part of the State-ensured legal aid? Could an update be provided regarding mass arrests conducted during the regime of exception?
How did access to a doctor and medical examination of a person in police custody take place? What were the protocols in place once a medical professional found and documented injuries resulting from acts of torture? What procedure was in place to allow inmates access to a doctor of their own choosing? Since the state of exception, reports of the use of torture against suspected gang members, as well as the allowance of impunity for the killing of suspected gang members, had skyrocketed. How were reports of torture of suspected gang members by the “death squads”, and other entities monitored? Ms. Racu said the exponential increase in the number of persons deprived of liberty had resulted in the worsening of the inhumane conditions in prisons in El Salvador. Was there an estimate of the number of detainees who were still in detention after serving their term? What measures were taken by the State to prevent, identify and treat infectious diseases in prisons? What measures had been taken to provide medicines and medical equipment to medical units in prisons?
Ms. Racu asked if detention facilities faced a shortage of staff and to what extent, especially in the high- and maximum-security prisons? Were there statistics on the use of physical force and special means by prison staff towards prisoners? Could the delegation share up-to-date and disaggregated data on the number of deaths in custody over the past four years? How were deaths in custody investigated? What were the results of the investigations? What measures had been taken by El Salvador to prevent deaths in custody, including suicides and violent incidents among detainees? What measures had been taken to prevent child abuse and torture, including corporal punishment, in various settings? Could more information be provided about cases where children were tried as adults? How many juveniles had been tried as adults?
Reports had been received indicating serious violations of the rights of persons in psychiatric and social institutions. Who monitored these institutions and how many complaints had been received? What were the results of these complaints? The Committee commended the State for the adoption of important legislation on domestic violence, such as the act on equality, equity and the elimination of discrimination against women, the special act against trafficking in persons, and the special comprehensive act on a violence-free life for women. What was the status of the discussion for decriminalising abortion? Were women accused of abortion represented by a lawyer? What steps was the State taking to hold officials accountable for investigating reports of domestic or gender-based violence? Could statistical information regarding the prevalence of domestic and gender-based violence be provided?
Responses by the Delegation
The delegation said the National Human Rights Advocate was El Salvador’s national human rights institution. A new Advocate for Human Rights had been named. The Advocate appointed prior to the state of exception also had authority to visit prisons and speak with inmates. The Prosecutor General had 251 criminal public defenders nationwide; since the state of emergency, the Prosecutor General had temporarily hired more public defenders. When individuals were detained, they were assigned a public defender, and were then given the option to choose someone else, at their own cost. A budgetary increase of more than 1 million dollars had been received to address cases which fell under the state of emergency.
The Constitutional Court had ruled that organised crime and systematic violence, which sought to intimidate the population, sowing terror and systematically undermining the human rights of the population, were brought under the concept of terrorism. Terrorism needed to meet three criteria: that the means used by the groups were lethal, that the intention of the actions was to sow fear in the population, and that the objective of the groups was to promote an ideological objective. It had been concluded that the criminal organizations in EL Salvador met these three criteria.
The most common forms of violence used by the gangs when it came to exerting power was dismembering and decapitation of their rivals, as well as the general population. In addition to homicide, rape was also committed and was considered a rite of passage for entry into the gang. The gangs or maras tried to monopolise the use of violence in areas under their control. These were criminal organizations which transcended the classic definition of a criminal organization, and instead fit into the concept of terrorism. It had also been documented that the gangs had entered into dialogue regarding deals which would influence elections, and compel the State to grant them benefits. Beyond just being organised criminals, these were terrorist organizations that had caused more than 117,000 deaths.
The penitentiary system had been transformed in recent years. Detainees’ health was assessed as soon as they were detained. Prison clinics provided comprehensive medical treatment, and detainees requiring health care that could not be provided in these clinics were taken to external medical institutions. Around 98 per cent of detainees had been vaccinated against COVID-19. Certain prisons had an intensive care ward for conducting operations on detainees, as well as gynaecology and maternal care services.
All prison centres had access to drinking water, proper ventilation and light, as well as leisure facilities. Children incarcerated with their mothers received appropriate support in dedicated facilities. There were also prison centres for lesbian, gay, bisexual, transgender and intersex persons. Particular attention was given to improving the facilities of women’s prisons.
National and regional criminology councils provided formal education, vocational training, physical education and drug rehabilitation programmes to detainees. These programmes contributed to reducing problems in prisons and gave detainees more opportunities once released. Data was collected on persons deprived of liberty to effectively monitor prisons. There had been no mutinies in prisons in recent years.
The delegation said that El Salvador worked to improve the capacities of public guards through training programmes on prison management, human rights and human behaviour. This training was provided to 80 per cent of prison centre staff. Training also covered the rights of persons with disabilities and lesbian, gay, bisexual, transgender and intersex persons. A mandatory disciplinary code was in place for prison staff. This protocol covered detainees’ right to privacy and access to necessary supplies such as medicines. Any release orders issued by competent authorities needed to be respected. Torture was prohibited within prisons.
The amnesty law had been deemed unconstitutional. The prosecutor had created a unit for investigating war crimes perpetrated by all parties to past armed conflict. In 2018, a policy to prosecute war crimes and crimes against humanity had been created. Investigations were carried out on the basis of accountability, and victims had access to redress. So far, the unit had investigated 207 cases of war crimes. Of these, 27 had been concluded. Fifty investigations were being conducted concerning enforced disappearance, and investigations were also being conducted concerning massacre, rape and torture cases.
The prosecutor’s office had been ensuring access to public defenders for all persons charged under state of emergency measures; 200 adults and 28 minors who had been charged under these measures had since been released. Around 5,000 homicide cases had been investigated between 2019 and 2021. Investigations were also underway of 14,000 cases of extortion recorded since 2014. There had been a drop in crime in recent years. From 2019 to 2020, there had been 1,200 cases of enforced disappearance, and only 200 during the state of emergency. Ninety cases of deaths in custody had been recorded, but investigations had not found any links between these deaths and ill-treatment from police officers. Fifteen cases of alleged torture had also been recorded, and four convictions had been issued. Training was provided to prosecutors and prison staff on the Istanbul Protocol and preventing violence against women; 29,000 staff had received such training.
The Constitutional Court constantly oversaw compliance with its rulings, and was currently studying a draft law on transitional justice. The Supreme Court had stressed that the right to due process was guaranteed under the state of emergency. A total of 892 minors had been freed by judicial order, and charges on 249 minors had been resolved.
The Government had been working to bring legislation on children in line with the Convention on the Rights of the Child. The protection of children and youth, especially from joining gangs, was prioritised. The Government had worked with the National Centre for Protection to develop rehabilitation programmes for children in conflict with the law. Food, clothing and hygiene facilities were provided to all children in halfway houses and youth shelters, as well as medical and counselling services. The number of youths in detention had dropped significantly through transitional justice measures. During the state of emergency, youth centres had been completely separated from adult detention centres.
The health of detained youths was assessed as soon as they were detained. Birth certificates were provided to youths that required them, and youths were provided with legal representation. Training was provided to staff working in youth rehabilitation centres. Cooperation agreements had been signed with the private sector to secure employment for released youths. The growing together law set forth the right of children to be protected against torture and ill-treatment. Comprehensive efforts had been made to protect children against torture.
El Salvador was working to reduce the crime rate and promote peaceful co-existence. The homicide rate had dropped from its highest level in 2015 to around 20 per 100,000 persons in 2021, and to 8.5 by the end of 2022. Some 80 per cent of homicides were committed by gang members. One police agent had been arrested for homicide in 2018. Since 2019, no police agents had been detained for the crime of homicide. Human rights training was provided to all police force members in police training units. Training covered legitimate use of force, and international regulations on torture, including the Convention against Torture, the Istanbul Protocol, the Montenegro Protocol, and gender-based violence.
All detainees had the right to legal defence. There were no protocols regarding the frequency of visits of lawyers to detainees. Lawyers could visit detainees as often as necessary. From the moment a person was detained, they were notified of their rights.
The Government aimed to strengthen security in the State and improve living standards. To achieve this, the Government had identified goals within its national security policy such as reduction of crimes of homicide and extortion, improvement of co-existence between citizens, and improvement of public perceptions of law and order. The Government aimed to strengthen its institutions and re-establish the authority of the State, end impunity for gang crime, improve prison conditions and combat corruption.
Eighty-seven murders took place within 72 hours in March this year. The victims had no connection to organised crime. In response to this, a state of emergency was adopted on 27 March. This state of emergency had been duly extended several times. Under this state of emergency, certain constitutional guarantees were suspended. Legal reforms had been introduced as part of this state of emergency prohibiting messaging involving gangs in the media, and reforming legislation on drug crimes, terrorism, and organised and juvenile crimes. Reforms had also been implemented to cut off funding for organised crimes and provide better support for people victimised by organised crime. Some 57,000 people had been detained, and 2,000 vehicles, 30,000 cell phones and 1.3 million dollars’ worth of assets seized as part of state of emergency measures. These actions had led to a dramatic drop in the number of homicides per year.
Questions by Committee Experts
ANA RACU, Committee Vice Chairperson and Co-Rapporteur for El Salvador, said that the Committee appreciated efforts to respond to the needs of detainees. Ms. Racu welcomed that healthcare services had been strengthened in prisons. Were necessary medicines provided to the entire prison population? What measures were in place to address the problem of shortage of staff? Did a mechanism exist for doctors to report suspected cases of torture? What measures were in place to reduce levels of violence in places of detention? Ms. Racu called for more information on measures to prevent domestic violence and decriminalise abortions.
Another Committee Expert said that the State party had an obligation to provide redress to victims of torture. The Expert called for more information on provisions to provide redress to victims. A decree on transitional justice had been vetoed by the President. What was the current situation regarding this decree? There were numerous complaints alleging torture and ill-treatment, but far fewer cases were prosecuted. On what grounds were complaints rejected? What measures were in place to properly investigate complaints, punish offenders and provide redress to victims? Under the Convention, the right to not be a victim of torture and ill-treatment could not be derogated from even in a state of emergency.
A Committee Expert said that gangs were defined as terrorist groups when they had an ideological objective. What was the “ideological objective” of maras in El Salvador? Why was conceptualising the gangs as “terrorists” necessary?
CLAUDE HELLER, Committee Chairperson and Country Co-Rapporteur for El Salvador, asked about the status of draft legislation on human rights defenders.
Responses by the Delegation
The delegation said that during the pandemic, the health care budget had been increased from four to six per cent of gross domestic product. With additional funding, the range of health care services provided in prisons had been increased. Three hundred doctors, nurses and health care professions were employed in prison health care centres, and more than 3,000 persons had been trained as medical counsellors within prisons. Doctors and medical staff were required to inform the prosecutor’s office and forensic experts about any injuries suffered by detainees in prisons.
An inter-institutional committee for ensuring care for migrants had been established. Migrants were provided with preventative medical care and mental health care support.
El Salvador recognised the right to life from the moment of conception. There was no inter-American norm that recognised abortion as a right. There were exceptions to the crime of abortion. Abortions could be carried out if there was danger to the life of the mother.
Concluding Remarks
CLAUDE HELLER, Committee Chairperson and Country Co-Rapporteur for El Salvador, said that the Committee appreciated the efforts and detailed responses of the delegation.
ADRIANA MIRA, Deputy Minister of Foreign Affairs of El Salvador and head of the delegation, said that the delegation appreciated the support of the Committee. El Salvador had one of the lowest levels of irregular migration in the region. The Government considered human trafficking to be an issue of serious concern, and was working to locate victims and prosecute perpetrators. El Salvador was part of the regional conference on trafficking in persons. El Salvador had drastically reduced the number of persons that travelled from the country to the United States irregularly. Reparations for victims of torture were provided in a comprehensive manner.
El Salvador welcomed the opportunity to share progress made in preventing torture and ill-treatment despite the difficult domestic situation. El Salvador respected its international obligations and had implemented measures to ensure the security of the State. As a result of these measures, El Salvador’s citizens were now able to walk the streets safely. Ms. Mira welcomed the concluding observations of the Committee, which would help to further strengthen the rights of the citizens of El Salvador
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CAT22.022E
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