Renewed state of emergency undermines right to fair trial in El Salvador says HRC

Anjali Sharma

GG News Bureau 

UNITED NATIONS, 23rd May. UN Human Rights Council on Monday said that the decision by El Salvador to extend a state of emergency to crackdown on gangs undermines the right to fair trial.

HRC stated that the state of emergency was first approved in March 2022, and initially for a month, but has been renewed ever since, generating a wave of mass incarceration.

Human Rights experts called for the measure to be lifted immediately and for the Government to review the sweeping new powers introduced to tackle the country’s gang problem.

“The state of emergency was declared following a series of gang-related killings. Despite its obligation to protect citizens from such atrocious acts, the Government cannot trample on fair trial rights in the name of public safety,” the statement stated

They urged the authorities to ensure that people are not arrested on mere suspicion of gang membership or association without sufficient legal authorization.

It said that detainees should be afforded all fundamental safeguards required under international human rights law and guaranteed due process.

They noted that in September 2022, official figures indicated some 58,000 people had been detained. An Executive Decree issued six months later put the number at “more than 67,000”.

According to the experts, the information received indicated that many of these detentions are arbitrary, and some constitute short-term enforced disappearances.

“The prolonged state of emergency, together with legislation allowing for greater surveillance, broader prosecution, and faster determination of guilt and sentencing carries the risk of mass violations of the right to a fair trial,” they added.

 “Those caught up in the Government’s dragnet in El Salvador must be given their rights.”

They expressed concern about the Government’s reliance on the concept of “permanent flagrant crime” to influence warrantless arrests of people suspected of being gang members.

They noted initial court hearings were held in groups of up to 500 people. The public defenders have been given some three to four minutes to present the cases of 400 to 500 detainees at a time, and mass trials have also been reported.

“Mass hearings and trials – often conducted virtually – undermine the exercise of the right to defence and the presumption of innocence of detainees,” the experts said.

“The excessive use of pre-trial detention, the prohibition of alternative measures, trials in absentia, and the possibility of using practices such as ‘faceless judges’ and reference witnesses all undermine due process guarantees.”

The experts added thousands of families have been severely affected economically as they have had to incur additional costs to defend their relatives and provide for their wellbeing, health and safety.

They said the measures threaten to criminalize people who happen to live in the most impoverished areas and who have themselves been targeted by gangs in the past.

Human rights experts warned that the level of disruption and interference in the justice system risks limiting access to justice for all Salvadorans.

“It leads to undue delays in both civil and criminal cases, has a negative impact on guarantees of due process, protection against torture and of the right to life, and may lead to increased overcrowding in places of detention,” they said.

Margaret Satterthwaite, Special Rapporteur on the independence of judges and lawyers; Fionnuala Ní Aoláin, Special Rapporteur on the promotion and protection of human rights while countering terrorism, and Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions, issued a joint statement .