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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
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