State of Exception -- the (In)justice System

One common assertion by proponents of the current State of Exception in El Salvador is that the justice system will correct errors and only guilty persons will be locked up for any significant period of time. In fact, changes in the law, and a court system which does not act independently of the Bukele regime, mean the reality is quite different for the 70,000 persons arrested since March 2022.

1. Arbitrary arrests with little or no proof.

The failures of the criminal justice system in El Salvador under the State of Exception begin with the arrests and detention of persons, usually in marginalized communities, without sufficient proof of any criminal activity. The State of Exception, which continues to be extended every month, permits an arrest to be made on mere suspicion, without police seeing a crime being permitted and without an order for arrest. 

The online periodical El Faro documented hundreds of cases of arrests with flimsy evidence in an article titled State of Exception Files: Hundreds Arrested for Prior Convictions or “Looking Nervous”.  El Diario de Hoy published  "Via an anonymous call": complaints that the police do not investigate before arresting

Experts have  warned of the link between anonymous denunciations and arbitrary arrests:

"123", the new phone line for anonymous tips, began to be publicized on May 13 [2022] in full implementation of the emergency regime in the country. What came next were complaints from families about arrests based on these calls and the warning from human rights organizations about the risk of applying this method. The Passionist Social Service (SSPAS) has documented cases of complaints about arbitrary arrests in which people have expressed that the capture was due to anonymous calls. The victims suspect that the complainants may have been neighbors with whom they had community conflicts.

2. Delayed and meaningless initial hearings.

Once someone is detained, the State of Exception prolongs the time in which a preliminary hearing must be held from 3 days to 15 days. Those hearings have almost never resulted in anyone being released right away. Instead, detainees are told there will be at least six months in prison before their next hearing.

Prior to the State of Exception, Salvadoran law limited the amount of time which a person could be held in prison before trial to two years for serious crimes, which could be extended at most for an additional year.  In addition, one could apply to the Court for pretrial release with alternative measures.

However, in a measure passed three days after the State of Exception began in March 2022, the Assembly eliminated the time limit on pretrial detention and the ability to seek alternative measures to pretrial detention.  Frequently during the State of Exception, these initial hearings involved dozens or even hundreds of persons arrested with a perfunctory examination resulting in defendants sent off to wait for months with little knowledge of the charges against them.  

3. New crimes and penalties created by the Legislative Assembly easily subject to abuse by prosecutors.

In measures adopted early in the State of Exception, the Legislative Assembly lengthened the possible penalty for association with a gang to 20 - 30 years in prison. "Illicit associations" is the all-encompassing charge used overwhelmingly for those arrested during the State of Exception. For those found to be gang leaders, the penalty was increased from 30-40 years.

The crime of "illicit associations" with its decades-long prison sentence is being charged in a variety of ways. Someone might be charged with gang ties for the simple fact of having given a ride to a gang member under threat of harm to a family member if they refuse. A relative of a gang member could be charged for letting the gang member sleep in their house.  Or a gang member who has already served a 12 year sentence for robbery will usually be arrested for the separate crime of their gang membership the moment they walk out of prison.  "Illicit association" is a dangerously flexible criminal charge carrying a severe penalty.

4. The "Judges Without Faces."

The Legislative Assembly passed new laws providing that trials involving persons charged with gang involvement would be overseen by anonymous judges -- "judges without faces" -- whose identities would be confidential. In addition, the new laws created specialized courts to oversee gang-related trials and for purposes of telephone wiretaps where the selection and naming of judges to those courts would not be subject to public view. Thus who the judges are, whether they have qualifications or conflicts of interest, and how they were selected, is all unknown.

5. Years of pre-trial imprisonment without trial.

Criminal lawyers in El Salvador have reported that prosecutors will have until August 2025 to conclude the evidence gathering phase of criminal cases while defendants languish in prisons throughout the country. In some cases, the prosecutors have asked that the trial phase not commence earlier than January 2026.   This video describes how the times before future trial have been extended by years:

6. Planned mass group trials

In the criminal law changes adopted under the State of Exception, suspected gang members can be tried in massive group trials including up to 900 defendants.  It takes no stretch of imagination to see the unlikelihood that courts will be able to focus on the individual culpability of a single person swept up at the same time.  The law also gives prosecutors considerable discretion to decide who can be tried together and where the trials will take place.

7. Failure of supreme court to act on habeas corpus petitions

Appeals do not make justice more likely.  According to a report in November 2023, the Supreme Judicial Court had received 5198 petitions for habeas corpus during the State of Exception, had agreed to hear only five, and had not granted a single petition.  

“The number of habeas corpus presented is an unprecedented amount in recent years in the country. It reflects the desperation of citizens in the search for justice.” Ruth Eleonora López, from Cristosal.

8. Orders for release which are ignored by the prisons

Even for those few persons lucky enough to receive orders for pretrial release to await trial (much more common than orders dismissing cases based on the skimpy evidence of police and prosecutors), the prisons often fail to release them. Human rights organizations have documented numerous cases of families knowing that a person in prison has been granted "cartas de libertad" but have waited weeks or months before that person walks out of the prison.

For example, La Prensa Grafica reported on the case of Christian, who spent 17 months in the prisons.   Although he received an order to be freed in May 2023,  he was not released until 4 months later. 

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More in depth information about the (in)justice system under the State of Exception can be found in a series of reports by the  Due Process of Law Foundation titled: (IN)DEBIDO PROCESO: Análisis de las reformas que acompañan el régimen de excepción en El Salvador.

The University Observatory of Human Rights also issued a report on criminal justice titled Informe sobre acceso a la justicia y régimen de excepción en El Salvador.   As a further cautionary note, the 
OUDH points out:
Likewise, this repressive governance goes beyond criminal matters. The warning: “We are going to apply the regime to you,” is frequently used by authorities in administrative, municipal, even traffic violations, rejection of labor claims, in evictions of vendors from public places, etc., or as an “alternative” facing someone who complains about an unjustified dismissal or other actions by the authority.

This post is the 4th in a series as the State of Exception in El Salvador enters its third year.  Read the earlier posts in this series: