Sweeping legal amendments passed by El Salvador’s Legislative Assembly in response to gang violence violate basic due process guarantees and children’s rights, Human Rights Watch said today.
On March 30 and April 5, 2022, the Legislative Assembly approved a series of gang-related measures proposed by President Nayib Bukele that allow judges to imprison children as young as 12, restrict freedom of expression, and dangerously expand the use of pretrial detention and counterterrorism legislation. The lawmakers approved the measures days after they declared a “state of emergency” in response to a request by the president that opened the door to abuses.
“The Salvadoran government should adopt rights-respecting measures to protect people from heinous gang violence, dismantle these groups, and bring those responsible for crimes to justice,” said Juan Pappier, senior Americas researcher at Human Rights Watch. “Instead, Bukele’s government has enacted overbroad, harshly punitive laws that undermine the fundamental rights of all Salvadorans.”
On March 26, violence attributed to gangs killed 62 people, the highest number in a single day in years, according to official figures. President Bukele responded by requesting a 30-day state of emergency and, a few days later, proposing several changes to the country’s criminal laws. The Legislative Assembly swiftly approved the measures.
The criminal law amendments contravene El Salvador’s obligations under international human rights law in several ways.
A law passed on April 5 allows criminal charges against anyone who “participates in the creation, assists or creates” any type of publication, image, graffiti or other form of visual expression that “explicitly or implicitly” transmits “messages” about or that “alludes to” the various types of gangs. The penalty is up to 15 years in prison. The law similarly allows criminal charges against media outlets that “reproduce or transmit messages or statements created or allegedly created” by gangs that “could generate a state of anxiety and panic to the population in general.”
These overbroad provisions could easily be used to target critics and journalists, Human Rights Watch said. They are inconsistent with international human rights protections for freedom of speech and association, which may only be restricted when necessary and proportionate to achieve a legitimate goal, such as to protect national security or the rights of others.
On March 30, the Legislative Assembly lowered the age of criminal responsibility for children accused of the existing crime of belonging to “terrorist groups or any other criminal gang,” from 16 years to 12. The new legislation allows prison sentences of up to 10 years for children ages 12 to 16 and of up to 20 years for children over 16. Salvadoran law establishes that children have a right not to be held in adult detention sites.
Previously, children accused of belonging to gangs were detained on national security grounds. A 2018 United Nations report on children deprived of liberty indicated that in 2017, over 200 children in El Salvador were detained on national security grounds, primarily for alleged gang activity.
The United Nations Convention on the Rights of the Child, to which El Salvador is a party, defines a child as anyone under age 18. The UN Committee on the Rights of the Child, which interprets the convention, has called on countries not to set the age of criminal responsibility below 14, and has encouraged countries to progressively increase the age of criminal responsibility.
The amendments also dramatically increase sentences for gang membership, which can be prosecuted as terrorism in El Salvador.
Since 2016, El Salvador has broadly defined “terrorist groups” to include those that use “violent or inhumane methods with the express purpose of instilling terror, insecurity, or alarm within the population,” or to “assume the exercise of powers that belong to the sovereignty of the states or systematically affect the fundamental rights of the population or part of it.”
The new legislation’s extremely harsh penalties could lead to disproportionate punishment, Human Rights Watch said. Those convicted of leading a “terrorist” gang now face 40 to 45 years in prison, up from 14 years. Membership in these groups now carries a sentence of 20 to 30 years, up from 3 to 5.
Prison terms for supporting gangs are now 20 to 30 years, up from 3 to 6. Under Salvadoran law, the definition of support for an illegal group includes not only someone who “promotes, helps, facilitates or favors the creation or presence” of the group but also anyone who, knowing that these groups are unlawful, “receives direct or indirect benefit” by having relations “of any nature” with them “even without being a part of them.” Such a definition could be used to charge family members, lawyers, journalists, and civil society members, Human Rights Watch said.
In a tweet, President Bukele accused journalists, nongovernmental organizations, judges, and politicians who criticized his policies of “defending” gangs and using them as their “armed wing.” A pro-Bukele lawmaker followed up by tweeting that “thanks to the [legal] reforms, all of them will now be regarded as ‘terrorist groups’ for their links to criminal groups.”
The legislative changes also allow criminal courts to conceal the names and identities of judges to protect their security and to “use necessary measures to make impossible their visual identification.” While protecting a judge’s life and physical integrity is fundamental to ensuring the proper administration of justice, the Inter-American Court of Human Rights has ruled that “faceless judges” make it impossible for defendants to assess whether judicial authorities have a conflict of interest and are independent and impartial, violating due process protections under the American Convention on Human Rights.
The Legislative Assembly also expanded mandatory pretrial detention to include all “crimes committed by members of terrorist groups (gangs) or any other criminal organization.” This provision is inconsistent with international human rights standards requiring an individualized determination establishing that pretrial detention is necessary and proportionate for purposes such as preventing flight, interference with evidence, or the recurrence of crime.
The legislature also modified El Salvador’s Code of Criminal Procedure to allow for indefinite pretrial detention. Previously, the Code said it should never exceed 12 months for “less serious crimes” or 24 months for “serious crimes.” For defendants accused of being part of “terrorist or illegal groups,” the new Code of Criminal Procedure derogates any time limits regardless of the charges, raising concerns about violations of defendants’ right under the International Covenant on Civil and Political Rights to a trial within a reasonable time or to release.
The changes open the door to further congesting the country’s prisons, which, as of December 2020, were 136 percent over capacity, with some holding more than six times the maximum number of prisoners allowed.
In addition to these new laws, the March 26 “state of emergency” suspended for 30 days the constitutional rights to freedom of association and assembly; privacy in communication; the rights to be informed of the reason for arrest, to remain silent, and to legal representation; and the requirement to bring anyone detained before a judge within 72 hours.
On April 7, Bukele said that, since March 26, they had arrested over 7,400 people whom they accused of being gang members responsible for the increase in homicides. On April 1, President Bukele tweeted, “How do we know if someone is a gang member?” and posted photos of men with tattoos such as “MS13” that are commonly seen on Salvadoran gang members, without any acknowledgment that they might have left a gang and without recognizing the reality of forced recruitment.
El Salvador and other Central American countries have suffered endemic gang violence for decades. Human Rights Watch has documented that the gangs forcibly recruit children, and sexually assault, kill, abduct, rape, and displace people, including women and LGBT people.
The gangs, most notably MS13 and factions of 18th Street, exert control over parts of the country. On April 4, President Bukele said that the country had 86,000 gang members. Authorities have historically been largely ineffective in protecting people from gang violence.
In recent months, the pro-Bukele majority in the Legislative Assembly has packed the Supreme Court, replaced the attorney general with a Bukele administration ally, and dismissed hundreds of low-level judges and prosecutors.
“By dismantling the rule of law in the country, President Bukele has undermined rights protections for all Salvadorans and effectively weakened authorities’ capacity to investigate gang violence,” Pappier said. “This is precisely the opposite of what a robust rights-respecting security policy should achieve.”