IACHR Issues Report on State of Emergency and Human Rights in El Salvador

September 4, 2024

Washington, D.C. -— The Inter-American Commission on Human Rights (IACHR) has released State of Emergency and Human Rights in El Salvador, a report examining the state of emergency that has been in place in El Salvador since 2022 and its implications for human rights.

The report examines the longstanding issue of gang violence in El Salvador, which has severely impacted human rights in the country for decades, as documented in the IACHR's 2021 country report. In this new report, the IACHR notes a significant reduction in violence through December 2020. However, following a wave of violence that resulted in at least 92 deaths between March 24 and 27, 2022, the State declared a nationwide state of emergency as an extraordinary measure to eradicate gang activity.

In the report, the IACHR examines Legislative Decree No. 333, enacted on March 27, 2022, and its subsequent extensions, evaluating them against inter-American human rights standards regarding the suspension of rights and guarantees. The IACHR also emphasizes that while States are obliged to take measures to combat and eradicate organized crime that are appropriate to the specific circumstances countries may be experiencing, these actions must nonetheless align with their legal and international obligations.

The report highlights several legislative changes implemented to enhance citizen security that emphasize a punitive approach. These include the mandatory imposition of pretrial detention for specific crimes, the confidentiality of judicial actors' identities during criminal proceedings, and the application of adult prison sentences to minors under 18.

According to available data, 73,000 people were detained between March 27, 2022, and early November 2023, most of whom were held in pretrial detention. The IACHR has received numerous reports of human rights violations, including systematic and widespread illegal and arbitrary detentions, unlawful raids on homes, excessive use of force, and violations of the rights of children and adolescents.

The report also addresses significant challenges in ensuring access to justice during this period, including delays in judicial reviews of detentions, ineffective habeas corpus proceedings, lack of evidence to support charges, abuses related to pretrial detention, mass trials, restrictions on the right to defense and judicial guarantees, and disregard for due process. The IACHR also expressed concern about the treatment of children in conflict with the law in response to reports indicating violations of their specific rights and guarantees.

These issues are exacerbated by the already precarious conditions of detention in which people deprived of their freedom are held. As the IACHR observed during its 2019 visit to El Salvador, these include severe overcrowding and the excessive use of pretrial detention. The report cites information suggesting that between 189 and 200 detainees may have died in custody (there are discrepancies in the reported figures) and raises significant concerns about shortcomings in investigations into such cases, the process of notifying families, and the treatment of corpses. Reports on how these circumstances impact the families of detainees are also discussed.

The state of freedom of expression and the press in El Salvador during the emergency period are also covered in the report. The IACHR and the Office of the Special Rapporteur for Freedom of Expression review legislative reforms that restrict these freedoms. These include limitations on access to information due to a range of obstacles such as increased classification of public information, lack of periodic, disaggregated data, and denial of information requests. The report also discusses the challenges faced by journalists and human rights defenders.

In the report, the IACHR underscores that inter-American standards stipulate that a state of emergency is an exceptional measure that must be necessary, appropriate, and proportionate to the emergency context. It also warns that certain judicial guarantees cannot be suspended under any circumstances and stresses that the duration of the state of emergency should be strictly limited to the period of the emergency.

The IACHR calls on the Salvadoran State to make crosscutting efforts to prevent violence, mitigate the risks and damages to vulnerable groups, and restore the social fabric. It has also noted the statistics provided by the State on improvements to citizen security. These appear to demonstrate that the country has moved beyond the state of emergency and that the suspension of rights and guarantees is no longer justified, in accordance with the requirements of the American Convention.

The IACHR calls on the Salvadoran government to restore the suspended rights and adopt comprehensive measures to address the root causes and consequences of crime while also engaging in prevention, monitoring, and response efforts from an integrated, crosscutting perspective. This approach should be part of a broader citizen security policy that prioritizes respect for and protection of human rights, with increased citizen participation and accountability.

The IACHR urges the Salvadoran State to reinstate the rights and guarantees suspended by the state of emergency decrees, emphasizing that this extraordinary mechanism must not become a permanent feature of the country's citizen security policy.

It also reiterates the State's obligation to investigate human rights violations, seek the truth, and prosecute and punish those responsible, highlighting the essential role of justice in upholding victims' rights.

The report contains 22 recommendations for the Salvadoran government aimed at strengthening the protection of human rights. The IACHR underscores the importance of developing robust institutions to support victims of crime, as these are a cornerstone of effective citizen security.

The IACHR notes that it is at the disposal of the State to provide technical assistance in accordance with its mandate.

The IACHR is a principal and autonomous body of the Organization of American States (OAS), whose mandate stems from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has the mandate to promote the observance and defense of human rights in the region and acts as an advisory body to the OAS on the matter. The IACHR is made up of seven independent members who are elected by the OAS General Assembly in their personal capacity, and do not represent their countries of origin or residence.

No. 207/24

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