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Working Group on Arbitrary Detention Statement upon the conclusion of its Mission to El Salvador (23 January - 1 February 2012)

The United Nations Working Group on Arbitrary Detention visited the Republic of El Salvador on official mission from 23 January to 1 February 2012, following an invitation from the Government. The delegation was headed by myself*, as Chair-Rapporteur of the Working Group along with two other Members: Mr. Roberto Garretón (from Chile) and Vladimir Tochilovsky (from Ukraine). We were also accompanied by staff of the Secretariat from the Office of the United Nations High Commissioner for Human Rights and United Nations interpreters.

I would like to firstly express my sincere appreciation and gratitude for the invitation extended to us by the Government which throughout our visit has provided its full support and co-operation. I would also like to thank the office of the United Nations Development Programme here in El Salvador for the support we have been given. We also extend our appreciation to the Salvadorian civil society organizations and to the magistrates, judges, lawyers and jurists that the Working Group met with. 

During its visit, the delegation met with various State authorities including the Minister for Foreign Affairs, Justice and Public Security; the Minister of Health; members of the Committee on Justice and Human Rights; members of the Committee on Public Security; the President of the Supreme Court of Justice; the President of the Criminal Chamber of the Supreme Court; the Deputy Attorney-General of the Republic and the National Human Rights Institution (Ombudsman).

The Working Group also met with the Director General of the National Civil Police; the Director of the National Academy on Public Security; the Executive Director of the Salvadorian Institute for the Integral Development of Children and Adolescents (ISNA); the Director General of Penal Centres and the Director General for Migration and Foreigners.

During its visits to the cities of Santa Ana and San Miguel, the Working Group held several meetings with magistrates, judges and members of the Attorney-General’s office. In San Salvador, the Working Group met with the Director General for Human Rights in the Ministry for Foreign Affairs; the Director General of Intermediate Centres; the Deputy Criminal Prosecutor and National Co-ordinator of the Public Defense Unit (in the office of the General Prosecutor); the Deputy Director of Penal Centres; the Prosecutor for Civil and Political Rights; the Prosecutor for Children and Adolescents and the Chief of the Penitentiary Unit at the Ombudsman’s office.   

The Working Group was able to visit the following penal and detention centres: Ciudad Barrios Prison in San Miguel; Mariona Prison; the Center for Children of Ilobasco; the Western Penitentiary of Santa Ana; Apanteos Prison; the Women’s Prison in San Salvador; and police holding cells in Soyapango. It also visited the Center for the Integral Attention of Migrants as well as a psychiatric hospital. In conformity with its methods of work, the Working Group also conducted an unannounced visit to the Central Police Station of San Miguel.

Throughout the visits and meetings held, the Working Group was able to fully exercise its mandate in being able to interview prisoners and detainees in an atmosphere of confidentiality and without the presence of prison officials. The Working Group would like to reiterate its appreciation to the Government for the facilities it availed them throughout the mission and for respecting its working methods particularly with the interview of prisoners and detainees.

The Working Group notes with satisfaction that after 20 years since the signing of the peace agreements of Chapultepec, there is a general awareness by authorities and civil society on the need to respect human rights. The 1998 Criminal Procedure Code also had a progressive impact towards the safeguarding of human rights guarantees. However, what concerned the Working Group was that this Code was not fully implemented and that several amendments that were introduced over the years seriously undermined these fundamental guarantees. The Working Group notes the challenges that El Salvador is currently confronting particularly with regard to organized crime, drug trafficking and gang violence. It recognizes the harsh reality that the Government is faced with when it comes to ensuring public security for its citizens. Violence in El Salvador has been an integral problem for 30 years and the situation of security is becoming more complex with the increase of organized crime and gangs.  The Working Group notes the social phenomenon of the maras or gangs and that the policies of mano dura (tough hand) and super mano dura have been declared unconstitutional and unsuccessful in solving these difficult problems. Further, even though these policies have been abolished, they are still widely practiced which has resulted in the high number of arrests and detentions that have occurred in the country in the past years.

The Working Group was informed that an estimated 64% of Salvadorians view security as the most concerning issue in the country and has been the focus of national consultations by different parties and State institutions. These consultations included the Security cabinet which consisted of various representatives from the justice sectors.  However, the Working Group has also been informed of a lack of co-ordination among these sectors and thus the security situation has not substantially improved.

Additionally, the Working Group has observed the problem with regard to impunity in the country. The priority established by the investigative bodies and those in charge of the penal actions is on the most serious offences. Less serious offences remain without adequate investigation and offending individuals are not subjected to judicial process. 

The Working Group considers the need to address the problem of security in the country as a legitimate and critical issue of concern. It believes that the right to security is an important human right that is interlinked with the right to life. At the same time the Working Group reiterates that the right to liberty and to be free from arbitrary deprivation of liberty is also of extraordinary value and that there is a dire need to safeguard both fundamental rights. The need for public security cannot therefore be pursued or achieved without due consideration of the right to liberty and the right to be free from arbitrary arrest and detention.

In the interest of constructive dialogue and in the same spirit of co-operation that has existed throughout this visit, we would like to raise the following issues of concern:

(a) The right to be brought promptly before a judge

Article 9 of the International Covenant on Civil and Political Rights states that any person arrested or detained has to be brought promptly before a judge or an officer authorized by law to exercise such judicial power. Any delay must not exceed a few days. The same article also requires the arrested person to be informed at the time of arrest, of the reasons for the arrest and the charges against him/her. 

In El Salvador, the maximum time given to present a detainee before a judge is 72 hours. In practice however, a person can be arrested for as long as six days before he/she is brought to court.  The Working Group interviewed multiple detainees who had been arrested and kept for excessively long periods beyond the time-limit provided for by the law.  

Another important issue is the total length of the judicial process. Both article 9 and 14 of the International Covenant on Civil and Political Rights state that a detainee is entitled to be tried within a reasonable time or be released. This guarantee refers not only to the time between the formal charging of the accused and the time by which a trial should commence, but also to the time when a final judgment on appeal or cassation is reached.  In El Salvador the time limit where one is to be sentenced is six months, which can be extended to an additional  six months. In certain cases, this can be extended to more than 24 months.  The Working Group notes that around 7,376 detainees are in preventive detention, 937 of which have exceeded the maximum time of preventive detention allowed by law (533 for more than one year; 229 more than two years and 155 more than three years). The Working Group wishes to state that all stages of a detainee’s trial whether in the first instance or on appeal, must take place without undue delay

(b) Excessive use of detention

The Working Group would like to emphasize that deprivation of liberty should be used as a measure of last resort and only in exceptional cases. The Working Group observed detention was widely used in criminal cases and that a serious consequence of this was the overcrowding problem in prison facilities.  

(c) Difficulty in accessing and communicating with defence counsels

The right to fair trial and due process requires that a detainee is granted prompt access to counsel since the first moments of arrest. This implies that a counsel should be able to meet with the detainees in private and communicate within conditions that fully respect the confidentiality of their communication.

The Working Group notes that lawyers are not usually present in police stations. Furthermore, it received a lot of information on defence counsels being subjected to invasive searches when they enter and leave prison premises. These searches are carried out by military personnel who patrol and control the parameters of prison and detention facilities. Handwritten notes and information obtained from client interviews in prisons are also checked and scrutinized during these searches. This practice has seriously discouraged lawyers from visiting their clients and has adversely affected the rights of detainees to effective legal assistance.  The situation is yet more serious for women lawyers because the search and control they are subjected to are often intrusive and humiliating. The absence of a bar association in the country may explain the lack of documented complaints for these treatments. Further, there is no effective complaint mechanism to deal with this practice of invasive searches being carried out by the military. The difficulty in accessing and communicating with defence counsel has serious implications on the right to fair trial and due process.  

These intrusive searches were also carried out on legal aid lawyers from the Public Defenders office, representatives of the Ombudsman’s office, human rights defenders and families of detainees.

The Working Group received numerous complaints that lawyers at the Public Defender’s office were also overburdened with heavy caseloads which impacted on their ability to effectively represent their clients.

(d) Juvenile Justice

The Working Group notes various concerns regarding juveniles. Judicial procedures should take into account both the age and final objective to educate and rehabilitate the child as provided for in Article 14 of the International Covenant on Civil and Political Rights. The paramount interest of the child should always be prioritized in accordance with the provisions of the Convention of the Rights of the Child.

The Working Group considers the existence of open regimes for minors as a positive improvement but is concerned with the delay in the application of justice for children and adolescents. The time limit to sentence a minor should not exceed 90 days.  In El Salvador, there are cases where the maximum of detention amount to 120 days.

The Working Group is further concerned that some minors (as well as many adults) in detention stated that they did not see their defence lawyers until it was near the time of their trial. This adversely affected the rights of these minors to effective legal assistance. The Working Group notes the positive work carried out at the centre for the social insertions of minors in Ilobasco, especially the primary and secondary education offered to youths there as well as the training in areas such as tailoring, pottery and baking. However, it expresses serious concerns at the condition and infrastructure of the Ilobasco facility, particularly the dormitories, which require an urgent repair.

This center currently detains 179 minors (134 which have definitive judicial sentences and 45 who are under trial). The inhumane conditions of the pre-trial detention sector is extremely concerning, particularly as these youths are by law, innocent until proven guilty.  

(e) Lack of use of scientific evidence and the over- reliance on informers and witness testimonies

The Working Group notes the great importance given to the testimony evidence of witnesses in trial and the lack of use of scientific or forensic evidence. The excessive emphasis given to this sort of evidence is reportedly due to the lack of means to gather more concrete and substantial evidence. This has further motivated the use of “opportunistic witnesses” (criteriado) and informants who can receive benefits such as release from custody, withdrawal of charges against them and reduced sentences if they testify against other persons.

The Working Group notes that it was common for these opportunistic witnesses to be used against co-accused persons in court and there are serious concerns about the credibility of testimonies obtained in this manner, particularly as these testimonies can gravely jeopardize the fairness of the judicial process. Detainees also stated that they often did not know who these witnesses were as their identities were not disclosed and cross-examination of these witnesses could not be effectively prepared. Indeed, the identity of the Prosecution’s witnesses shall be disclosed to the Defence and, save for the exceptional circumstances, disclosed to the accused.

(f) Absence of information and lack of reliable data

The importance of reliable data is necessary in understanding the reality of the situation regarding deprivation of liberty in El Salvador and also for the designing of adequate and effective policies to deal with problems in the country. The lack of reliable information and communication within the national justice system causes the distortion of the real situation in this area and adversely affects the effectiveness of the measures needed to address the existing problems.

Several convicted persons complained before the Working Group that they were never notified in writing of their sentences. Prison authorities stated that they had to make several requests to the court registries for copies of judicial orders or judgments. This implied that the penitentiary authorities did not have real knowledge of the legal status of their prisoners and interviews also revealed that some prisoners never received nor saw the judgments on their cases. Consequently, this prevented prisoners from requesting benefits such as conditional release.

The Working Group received data information from different governmental and judicial institutions which shows serious discrepancies on important issues such as the percentage of offences attributed to the gangs.

In some instances the prison administration did not have the information of whether a sentence has been served by an inmate and whether the inmate was entitled for release. The Working Group also received complaints from inmates that they already served their sentences and should be released, yet they continue to be imprisoned. According to the administration, in such cases, when the relevant requests for information were sent to judicial authorities, no responses were received.

(g) Lack of information for transfer of prisoners

There is also great concern at the lack of information available to prisoners regarding transfer. The Working Group was aware of 372 prisoners who were transferred from three different prison facilities to the prison in Mariona and who were not given any explanation for the reasons of their transfer.

They were transferred in the middle of the night to a prison which was far away from their homes. Their families were not informed and they were not able to take any of their personal belongings during the transfer. Further, most of those interviewed stated that they were transferred from a less restrictive regime to a closed and more restricted one.

(h) Extreme over-crowding of prisons and police detention facilities

The Working Group observed widespread over-crowding in prisons and police stations. As a result, the conditions observed in which detainees are kept may amount to inhumane and degrading treatment. The Working Group was also informed that detention facilities were 300% over the limit their capacities. With a total population of 25,411 and a physical capacity to hold only 8, 100 detainees, the penitentiary system is virtually in a state of collapse. The situation is also serious as detainees under preventive detention were often placed in the same cells as those who have already been convicted due to lack of space in prison facilities.

The overcrowding problem was also observed in the psychiatric facility visited by the Working Group.

(i) Arrests without proper judicial orders

The Working Group received information that mass arrests were often carried out on persons (particularly youths) without proper arrest warrants.  The Working Group understands that the National Civil Police is entitled by law to carry out arrests without judicial warrants in situations where there have been a flagrant commission of a crime. Its concern however is with the practice of mass arrest without justification of individuals such as young people who are presumed to be gang members. The Working Group was informed that in such situation of mass arrests, neither the Attorney-General’s office nor the judiciary can investigate these cases individually. Furthermore, detainees are often arrested and then freed before they have been brought before a judge.

The Working Group received information that the National Police carried out 56,000 arrests in which only 7000 were based on arrest warrants.

Preliminary Recommendations

In addition to the need to address the problems that we have identified the Working Group would also like to provide preliminary recommendations that may assist the situation of deprivation of liberty in the country. These recommendations are not exhaustive but are provided on issues that the Working Group notes as important for the Government to address.

The recommendations are as follows:

(a) Ratification of the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment, to assist with the problems of overcrowding and inhumane conditions observed in prisons and detention facilities;

(b) The promulgation of legal norms governing the deprivation of liberty in psychiatric hospitals with due regard to the human rights of patients;

(c) The recourse to detention of minors should be considered only as an exceptional measure;

(d) Revise and amend the national legislation on migrants in an irregular situation, refugees, asylum seekers and foreigners. The current legislation dates back to 1958 and needs to be brought into conformity with the 1951 Convention relating to the Status of Refugees (and other relevant international human rights instruments);

(e) Take urgent measures (and if necessary) to create special mechanisms to identify and release immediately those who have served their sentences but still remain in detention;

(f) Increase the number of penitentiary judges in order to carry out effective control of the situation of detainees.

   
These are our preliminary findings and recommendations. A final report on this visit will be presented to the Human Rights Council in one of its sessions in 2013. In this report, the Working Group will provide further recommendations to the Government.

I would like to once again extend my gratitude to this Government for the co-operation and support we have been given during our visit.

Thank you.                                           
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(*) El Hadji Malick Sow is from Senegal and has been the Chair-Rapporteur of the Working Group since 2009. The other two members of the Working Group are Shaheen Sardar Ali who is the Vice-Chair (from Pakistan) and Mads Andenas (from Norway). The former Commission on Human Rights established the Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of the administrative custody of immigrants and asylum-seekers. The Human Rights Council extended the Working Group’s mandate for a further three-year period by resolution 15/18 on 30 September 2010.

Learn more on the mandate and activities of the Working Group at: http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx

Database of the Working Group on Arbitrary Detention at:http://www.unwgaddatabase.org/un/

For more information on the Working Group’s visit, please contact Mr. Miguel de la Lama, Secretary of the Working Group on Arbitrary Detention (Tel.+41 79 201 0118/ email: mdelalama@ohchr.org or Jolene Tautakitaki Tel:+41 79 444 4917/ jtautakitaki@ohchr.org )