San Salvador, 26 November 2012
Ladies and gentlemen,
From 19 to 26 November 2012, I carried out an official mission to El Salvador in my capacity as the Special Rapporteur of the United Nations Human Rights Council on the independence of judges and lawyers. The purpose of my visit was to examine, in a spirit of co-operation and constructive dialogue, the progress made by El Salvador in implementing its obligations under human rights law to ensure the independence of judges, prosecutors and lawyers, and the obstacles encountered which prevent actors of the judicial system to discharge their functions efficiently, effectively, adequately and appropriately.
Let me begin by expressing my gratitude to the Government of El Salvador for inviting me to visit the country. In particular, I would like to extend my appreciation to the Ministry of Foreign Affairs for facilitating a rich and interesting programme of meetings and visits in San Salvador and Santa Ana. I would also like to thank the Office of the United Nations Resident Coordinator for the support in organising this mission. The openness shown by the Government before and during my visit demonstrates its commitment and willingness to co-operate with international human rights mechanisms in the solution of the challenges that El Salvador faces in the field of the administration of justice.
I would also like to use this opportunity to underline that I am an independent expert who reports to, and advises, the UN Human Rights Council and UN General Assembly. Although appointed by the Human Rights Council, I am not employed by United Nations and the position I hold is honorary. As an independent expert, I exercise my professional analysis and report directly to the Member States of the United Nations.
During my visit, I had the opportunity to hold meetings with a number of senior Government officials, including the Minister of Justice and Public Security; the President and a number of members of the Legislative Assembly; the President and various magistrates of the Supreme Court of Justice, including members of the Constitutional Chamber (Sala de lo Constitucional); magistrates and judges of different courts and tribunals; the Auditor Fiscal and a number of prosecutors from the Fiscalía General de la República; the Procuradora General de la República and members of her staff; the Procurador para la Defensa de los Derechos Humanos and his staff; lawyers; members of professional organisations and institutions; international and local non-governmental organisations; academics; and UN agencies. I would like to seize this opportunity to thank all the persons and institutions I met with for their warm hospitality and the wealth of information they candidly shared with me.
On the basis of the information I gathered during my visit, I will prepare a report containing my findings and recommendations on how to strengthen the independence and effectiveness of the justice system in El Salvador. The report will be presented at the 23rd session of the Human Rights Council, which will be held in Geneva in June 2013. Today, I will confine myself to a few preliminary remarks and recommendations on some of the issues that, along with others, will be explored in more detail in my report to the Human Rights Council.
At the outset, I would like to commend El Salvador for its efforts to move from a military regime to a democracy. The 1992 Peace Accords set the basis for the separation of powers and the independence of the judiciary, which constitute essential pre-requisites to the rule of law. The Constitution establishes, in its article 172, that the power to adjudicate and carry out judicial decisions belongs exclusively to the judicial organ, and that judges and magistrates are independent and are subject exclusively to the Constitution and the law in the exercise of their judicial functions.
Judicial independence has a crucial role to play in upholding the rule of law, combating impunity and defending human rights and fundamental freedoms at all times. Its implementation requires the creation of an environment conducive to independent, impartial and fair decision-making that enable judges and magistrates to decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
In particular, the judiciary serves as an essential check on the other branches of the State, the legislative and the executive powers. It is therefore of extreme importance that the judicial system be free from political or any other pressure. In El Salvador, serious interferences from other branches of powers continue to exist, as the recent institutional crisis between the Constitutional Chamber (Sala de lo Constitucional) of the Supreme Court of Justice and the Legislative Assembly has shown. These threats to the institutional independence of the judiciary should be assessed and addressed as a matter of urgency.
The tension between the Legislative Assemblyand the Sala de lo Constitucional, culminating in the sentence of the Constitutional Chamber to declare unconstitutional the appointments of Supreme Court magistrates and their alternates made in 2006 and 2012 by the Assembly, seriously undermined the independence of the judiciary and the principle of separation of powers. One of the most disturbing events that occurred during the institutional crisis was the unprecedented decision of the Assembly to bring a case against the Constitutional Chamber before the Central American Court of Justice. In addition to being questionable from a legal perspective, this decision showed a profound disrespect for the authority of the Constitutional Chamber, which is El Salvador’s highest legal authority for the interpretation of the Constitution.
In this regard, I would like to recall that existing international human rights standards require all governmental and other institutions to respect and observe the independence of the judiciary. Inappropriate or unwarranted interferences with the judicial process are inadmissible, and judicial decisions are not subject to external revision. Let me stress this point: decisions of judicial authorities cannot and should not be interpreted by other organs of the State; they must be respected and complied with.
Among the different attacks to the Constitutional Chamber, I have received information about efforts to undermine its decisions through allegations that the Chamber is exceeding its mandate; refusal of the Assembly to receive notification of the Court’s decisions; no publication of the sentences in the official Gazette; intimidations and attempts to remove magistrates of the Sala; and the creation of Special Commissions of the Legislative Assembly to assess the constitutionality of the sentences of the Constitutional Chamber. All these acts constitute, in my view, concrete examples of attacks to the independence of the judiciary.
This crisis demonstrates that the current procedure for the appointment of magistrates of the Supreme Court does not provide sufficient guarantees to ensure that they are selected on the basis of fair and objective criteria. The Legislature must establish a more rigorous, transparent and merit-based selection process for the magistrates of the Supreme Court. Only through such a process can the judiciary and the rule of law in El Salvador be strengthened.
In order to ensure the independence of the judiciary, the appointment of judges and magistrates should follow objective criteria clearly defined and set up in the rules and procedure of appointment. Such criteria should require that persons selected for judicial office be individuals with independence, integrity, ability and appropriate training or qualifications in law. The lack of transparency and public scrutiny on the process of selection continue to allow pressure and interferences from political parties and economic groups in the selection of magistrates, thereby hampering the institutional independence of the judiciary. Adequate methods for the selection and appointment of magistrates should be developed to avoid any risk of judicial appointments for improper motives.
Similar considerations can be made with regard to the selection and appointment of other key actors for the administration of justice in El Salvador, such as magistrates and judges of lower courts and tribunals, the Attorney General of the Republic (Fiscal General de la República) and counsellors of the National Council of the Judiciary (Consejo Nacional de la Judicatura).
The National Council of the Judiciary, which according to the Constitution is an independent institution (article 187), currently prepares the list of candidates for the appointment of magistrates and judges of the lower courts. I consider that the composition of the Council, which includes only one representative of the judiciary among its seven counsellors, is inadequate to allow this institution to represent and effectively defend the interests of members of the judiciary. Its independence should be strengthened. I recommend that composition of this body be reviewed, so as to ensure that the majority of members are judges and magistrates. I also believe that some of the administrative competences currently exercised by the Supreme Court of Justice, for example competences related to the Institute of Legal Medicine, the transfer of innmates anddisciplinary proceedings, should be reviewed and transferred to other institutions.
I am very worried about failure of the Legislative Assembly to find an agreement on the appointment of the new Attorney-General of the Republic (Fiscal General de la República). The Attorney-General has a crucial role to play in guaranteeing legality, combating corruption and impunity and protecting human rights and fundamental freedoms. I am seriously concerned that the present situation risks ending up in a new institutional crisis. The new Fiscal General should be appointed solely on the basis of his/her integrity, independence, competence and ability and through an open and transparent process.
I would like to address now the particularly difficult situation in which the prosecutorial services are. The lack of sufficient human and financial resources for the prosecutor’s office negatively affects the capacity of the prosecutors to initiate criminal proceedings. This results in an extremely low conviction rate, and contributes to raising a general feeling of impunity among the population. In order to improve the quality of prosecution services, additional financial resources should be allocated to the prosecutor’s office to improve the conditions of service of prosecutors and their legal and professional training.
Issues related to the procedures for providing evidence, especially in criminal cases, and the need to enhance the quality of investigations carried out by the police also have an impact in the fight against impunity. While I am aware that a direct assessment of the functioning of the police falls outside of the prerogative of my mandate, I wish to underline that when investigation services fail to deliver properly, it has a direct negative impact on the ability of prosecution services to take cases forward and, consequently, on the delivery of justice.
I wish to underline the importance of quality education, legal and professional training, including continuing training, and other kinds of capacity-building for all the actors of the judicial system. I am aware that professional courses exist to provide initial and continuing training to judges, prosecutors and lawyers. Training opportunities should be available for and accessible to all judges, magistrates, prosecutors and lawyers, regardless of the level at which they operate, and should include specific courses/modules on international human rights law and its application at the domestic level.
However, it appears that existing training institutions do not have sufficient human, technical and financial resources to provide adequate training opportunities to those involved in the administration of justice. I would like to take this opportunity to encourage institutions of the United Nations system, the donor community and civil society organisations to provide technical cooperation and financial assistance to national training institutions in developing quality education curricula and professional trainings.
I would also like to say a few words on the role of civil society in promoting a transparent, fair, accessible, solid and independent system of administration of justice. The institutional crisis between the judiciary and the legislative power provides an opportunity to claim more open and more transparent institutions. An impartial and independent judiciary serves as an essential check on the other branches of the State, and plays an important role in ensuring that the law applies equally to everyone. I would like to encourage the people of El Salvador to engage in the process of judicial reform to contribute to building a stronger and more independent system of administration of justice with independent judges and magistrates.
To conclude, I would like to offer a few preliminary recommendations on how to strengthen the independence of the judiciary in El Salvador.
I urge all State institutions to respect and implement the decisions of national courts and tribunals, including the decisions of the highest legal authority for the interpretation of the Constitution, the Sala de lo Constitucional. Attacks on the Constitutional Chamber and its members and refusal to comply with the Court’s decisions must cease. As I mentioned before, decisions of judicial authorities cannot and should not be interpreted by other organs of the State; they must be complied with.
Regarding the selection and appointment of the judges and magistrates, including the magistrates of the Supreme Court of Justice, I recommend that the Legislative Assembly consider reviewing the procedure provided for in the Constitution, so as to ensure that judges and magistrates are appointed solely on the basis of their qualification, and not on the basis of their actual or presumed proximity to political parties.
I call on the various political forces within the Legislative Assembly to agree on basic requirements for the election of the Attorney-General and identify the new Fiscal General solely on the basis of his/her independence, integrity, competence and ability. As is the case for the election of the Supreme Court magistrates, it is of crucial importance to ensure that the process of selection of the new Attorney-General be open and transparent.
Finally, I wish to stress that it is the duty of all governmental and other institutions to respect and observe the independence of the judiciary. It is time to de-politicise the whole system of administration of justice, so as to ensure that magistrates and judges be enabled to decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.
Thank you for your attention.