El Salvador-Judicial Ineffectiveness

El Salvador's criminal justice system, which is derived from nineteenth-century Spanish jurisprudence, extends customary procedural safeguards to accused persons. Under Article 12 of the 1983 Constitution, any person accused of a crime shall be presumed innocent until proven guilty in conformance with the law and in a public trial. A person who is detained must be immediately informed of his or her rights, including the right to an attorney, and the reasons for the detention. Forced confession is prohibited. Article 13 prohibits any governmental organ, authority, or functionary from dictating orders for the unlawful arrest or imprisonment of any individual. Furthermore, arrest orders must always be in writing. The Constitution also provides that the periods for administrative or investigative detention not exceed seventy-two hours, during which time the detainee's case must be assigned to a competent judge. The United States Department of State reported that this requirement was followed in the great majority of cases in 1987. Americas Watch, however, charged in late 1987 that both the security forces and the army had violated this constitutional provision.

In the event of war, invasion, rebellion, sedition, catastrophe, epidemic, or other general calamity, the constitutional guarantees provided by Articles 12 and 13 may be suspended under Article 29 for a period not to exceed thirty days if at least three-fourths of the deputies in the Legislative Assembly vote to do so (see The Constitution of 1983 , ch. 4). For example, the 1986 state of siege allowed fifteen days of incommunicado detention for prisoners detained for political reasons.

The constitutional guarantees notwithstanding, El Salvador's criminal judicial system historically has been weak. For years the courts acquitted the few politically powerful individuals who were accused of crimes and held dissidents and poor prisoners in jail without trial indefinitely. The great majority of offenders nationwide traditionally were laborers, agricultural workers, unemployed individuals, and skilled workers. Well-to-do professional and technical personnel were rarely charged with, much less prosecuted for, crimes. The acquittal rate in court trials also traditionally was high, not only in the lower tribunals but even in the courts of first instance, which try felonies.

A Department of State study noted that the criminal judicial system was characterized by consistent underfunding; unwieldy laws of evidence that created an overreliance on confessions to obtain convictions; the intimidation of judges, prosecutors, jurors, and witnesses; a lack of modern investigative and forensic equipment and expertise; judges and court officers who worked only half-days; and antiquated and wholly inadequate administrative systems and office equipment. Political violence in the 1970s and 1980s further crippled the judicial system. Virtually no attempt was made to investigate the many thousands of murders perpetrated between 1979 and 1983 or to punish those responsible. By 1985 the homicide conviction rate, which in 1978 was 25 percent, had dropped to 13 percent. It was as low as 4 percent in rural areas by 1988. The number of homicide cases brought before the courts also declined steadily in the 1980s. Although the reported homicide rate reached a record high of 6,145 in 1980, only 812 cases were brought to trial, and only 109 convictions were obtained.

According to the Ministry of Justice, only about 10 percent of those in prison had been sentenced; the rest were detained suspects awaiting trial. Investigations of crimes dragged on long past the legal time limits, and the accused often spent years in prison awaiting trial.

Because the courts could not be relied on to prosecute the perpetrators of crimes nor to provide those arrested with speedy and fair trials, citizens had little confidence in obtaining redress of grievances through the courts. In the absence of a functional criminal justice system, acts of vengeance and vigilantism were rampant. Even in civil cases, attorneys rarely risked confronting powerful interests or wealthy families for fear of physical retribution.

The judiciary also suffered from the political polarization and extremism that gripped the country during the 1980s. Unidentified terrorists killed a military court judge in May 1988. That June FMLN terrorists assassinated an alternate justice of the peace and threatened two prosecuting attorneys. Right-wing obstructionists in the courts and the Salvadoran attorney general's office also repeatedly delayed highly publicized cases such as the murder of Archbishop Romero. The Romero case was shelved in December 1984 by judicial authorities claiming insufficient evidence. In August 1985, however, a Salvadoran court ordered the reopening of an investigation into the archbishop's murder. Duarte publicly presented new evidence in December 1987 that he said strongly implicated D'Aubuisson. Nevertheless, the government announced in December 1988 that the Romero killing would remain unresolved because of a Supreme Court ruling that the testimony of a key witness was invalid.

Some military personnel reportedly also resorted to kidnapping to intimidate lawyers and witnesses. A lawyer assigned to defend the five Salvadoran members of the GN accused of murdering the United States churchwomen said he was forced to take part in a "conspiracy" aimed at preventing higher ranking military officers from being implicated in the case. After refusing to cooperate, the lawyer charged that he was abducted by members of the GN, tortured, and imprisoned at GN headquarters.

Prior to January 1987, suspected FMLN members were charged with violations of Articles 373 to 411 of the Penal Code (the articles dealing with crimes against the state) but were processed under Decree 50, a special state-of-emergency law that established a military court system to try such cases. As a result of the Legislative Assembly's January 1987 decision not to renew the state of emergency, all terrorism-related cases had to be tried under normal Salvadoran law. New FMLN suspects were therefore remanded to the regular courts, although the previous cases continued to be tried under Decree 50 provisions. By mid1987 the Decree 50 courts had cleared more than half of their backlog of pending cases, acquitting some defendants, convicting some, and sending others to the regular courts for trial for common crimes. Judges in the regular courts tended to follow the Penal Code strictly and often released suspects despite evidence of their membership in the FMLN. The continuous threat of FMLN violence was a principal reason that court personnel avoided making decisions that might draw retaliation.

In the late 1980s, several developments suggested that the principle of military accountability to the judicial system was slowly being established. First, two military officers were jailed in 1987 for their involvement with a kidnap-for-profit ring. In addition, an army lieutenant was arrested and turned over to the courts in connection with the murders of three civilians in August 1987; and third, a jury in May 1987 determined that four policemen were guilty of the January 1983 murders of two students. As of late 1988, however, the courts had never convicted any military officer of a crime.

Two high-profile cases involving United States citizens were included under the 1987 amnesty program. In the first case, the Military Court of First Instance ruled in November 1987 that three PRTC terrorists jailed for killing four United States Marines, two American technicians, and seven Latin Americans in the 1985 sidewalk-cafe attack were covered by the amnesty decreed by Duarte because theirs was a "political" crime with a military objective. None of the three PRTC terrorists was ever tried for the crimes. The Military Appeals Court upheld the decision on January 26, 1988. That February, however, the United States attorney general, supported by the United States embassy, appealed to Duarte to reverse the court's decision in his capacity as commander in chief of the armed forces. In a decision made public on April 11, 1988, Duarte, knowing that United States aid to El Salvador was at stake, ruled that the three men charged in the killings could not be freed under the amnesty law. Duarte argued that the four United States Marines who were slain had diplomatic status as provided by the Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons, which El Salvador ratified in 1980.

In the second case, a Salvadoran chamber of second instance (appeals court) decided in December 1987 to free the two convicted killers of the three agrarian reform officials. As a result, the case then pending against former Lieutenant Roberto I. Lopez Sibrian, who had ordered the killings, was expected to be closed, although he remained in jail in late 1988. A similar attempt to secure the release of three of the five national guardsmen sentenced to thirty-year terms in 1984 for the killing of four United States churchwomen in 1980 was unsuccessful.

Data as of November 1988