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El Salvador Penal and Procedural Codes
El Salvador's penal and procedural codes are derived from the
established precedents of nineteenth-century Spanish
jurisprudence and therefore follow the standard Latin American
pattern. Although adopted early in the twentieth century, both
documents have been revised and updated periodically since then.
Changes in the Penal Code of 1904 have been enacted through
supplementary legislation in the form of laws or decrees. El
Salvador published a revised Penal Code in 1980. The code
recognizes three distinct levels of offenses: felonies
(delitos), misdemeanors (faltas), and infractions
(contravenciones). The major categories of offenses
distinguish among crimes against the state, crimes against
persons or property, and threats to public order or safety. The
Penal Code contains statutes prohibiting crimes against the state
(Articles 373 to 411), subversion (Articles 376 to 380), treason
(Article 381), terrorism (Articles 400, 402, and 403), and other
actions against the stability of the state. Crimes against
persons or property cover the more conventional types of
lawbreaking, including such offenses as homicide, assault,
robbery, and fraud. The code takes into account possible
extenuations and mitigating factors, such as self-defense.
Ignorance of the law is not considered an excuse, however, and an
unsuccessful attempted crime is punishable as though perpetrated.
Provisions allow for increased penalties in cases considered
aggravated or grossly malicious.
The code carefully defines penalties and their range in
considerable detail. Recognized punishments include fines,
imprisonment, banishment, loss of civil rights, and death.
Article 27 of the Constitution, however, allows the death penalty
only in cases established by military laws during a state of
international war. The code also prohibits imprisonment for debt,
perpetual and dishonorable sentences, banishment, and all kinds
of mental or physical torment. Persons arrested for crimes
against the state have the same legal protection as common
criminals. Holding views opposed to the government is not
justification for arrest if the suspect does not advocate
violence. Thus, the courts have held that membership in a front
organization controlled by the insurgents is not by itself
sufficient reason to hold an arrestee, although membership in a
guerrilla group is.
In the Salvadoran system, the courts become involved in the
case almost immediately after the crime is committed because the
judge oversees the investigation. If the police conduct a
preliminary investigation, they must submit the result to the
courts within seventy-two hours. A justice of the peace handles
minor crimes, but must forward major cases to a judge in a court
of first instance within fifteen days. In cases involving death,
a judge--usually a justice of the peace--goes to the scene of the
crime and "recognizes" the death judicially; a medical examiner
determines the cause of death. Arrest regulations require that
the security forces register detainees and have them examined by
a doctor or nurse on entry into police facilities. In insurgencyrelated cases, the authorities must promptly notify the family of
the detainee or one of the human rights offices of the arrest.
Mistreatment of prisoners is prohibited. The judge has seventytwo hours to determine if the evidence shows sufficient cause to
hold the suspect and, if so, orders pretrial detention. After
being turned over to the courts within seventy-two hours, an
arrestee has the right to have a defense attorney present.
The judge then begins the investigation (instruccion)
phase, actually conducting an in-depth investigation into the
crime. The judge lists all of the elements of proof needed in
order to determine the guilt or innocence of the accused, then
presides over each step of the
investigation, issuing orders for witnesses to come to testify,
visiting the scene of the crime, and ordering the police to
perform forensic tests. While the judge is conducting the
investigation, suspects accused of major crimes often remain in
pretrial confinement, even though the investigation phase may
take years to complete.
Once the judge is satisfied that all the available
information has been collected, the case may be dismissed or
moved to the plenary phase of the trial, in which the judge, the
defense, and the prosecution prepare in writing their
explanations of what the evidence shows. In murder cases, the
final step of the plenary phase is the jury stage, in which the
court clerk reads to a panel of five jurors a summary of the
evidence and the statements by the judge, defense, and
prosecution. Extensive procedural safeguards protecting the
rights of the defendant and rigid rules of evidence under the
civilian Penal Code severely limit the capabilities of the
prosecution. This is one reason why only about 15 percent of jury
trials resulted in convictions in the mid-1980s.
The accused has the right to file an amparo petition
(a claim that a constitutional right has been violated) with the
Supreme Court at any time during the process, as well as one
habeas corpus petition per phase of the process, starting from
the time the accused becomes aware that the judge may issue a
warrant for his or her arrest. When any petition is filed with
the Supreme Court, all work on the case by the judge in the court
of first instance ceases, and the entire case record is sent to
the Supreme Court. The defense may also file appeals to the
chambers of second instance at certain times in the process, and
this too causes the judge in the court of first instance to cease
work on the case. Finally, a type of appeal known as a cassation
may be filed with the Supreme Court, also causing a halt in work
on the case. Some time limits set down in the laws for
consideration of these appeals have been followed rigorously,
whereas others were ignored in the late 1980s.
Data as of November 1988
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