El Salvador: State Of Emergency Grave Threat To Rights

On 27 March 2022, El Salvador’s Legislative Assembly approved a state of emergency at the request of President Nayib Bukele, to respond to reports of a spike in gang-related homicides. The state of emergency, originally due to last 30 days, was renewed by the Legislative Assembly on 24 April. More than 25,000 have been arrested to date and widespread human rights violations have been reported. Amnesty International is particularly concerned about the following issues: 

1.    Legal reforms implemented in the context of the state of emergency threaten human rights and do not comply with international standards. 

The emergency decree approved by the Legislative Assembly suspends human rights that have been deemed fundamental, and therefore cannot be deferred, under international law. These include the right to legal defense and the right to be informed of the reasons for a detention, among others. 

Other legal reforms passed by the Legislative Assembly include the establishment of prison sentences for minors aged between 12 and 16 for gang-related crimes; the ability to try people in absentia – that is, without their presence in the context of a trial; the abolition of maximum time periods for pre-trial detention; and the establishment of trials with “faceless” anonymized judges, which may raise concerns over due process and judicial independence. 

Reforms also include the establishment of prison sentences for those that “directly or indirectly benefit from relationships of any nature” with gangs, or those that “reproduce…messages or statements originated or supposedly originated” by gangs – both vaguely worded reforms that do not meet the legality requirement under international law. The latter reform, in particular, could lead to the criminalization of journalists that report on gang-related activity. 

2.    There have been widespread reports of arbitrary detentions, as well as concerns over ill treatment and the deaths of prisoners in custody. 

Civil society organizations have received more than 300 reports of human rights violations in the context of the state of emergency, more than 70% of which relate to arbitrary detentions.

Local organizations and the media report that people are being arrested in poor and marginalized neighborhoods merely for having tattoos or being present in areas where gang members traditionally operate. These people allegedly do not have access to legal defense, and concerns have been raised regarding judicial independence and the ability of these individuals to obtain fair judicial review of their detention. Reports of ill treatment have also surfaced in the context of the state of emergency, and the President has made concerning statements regarding limiting prisoners’ access to food and fresh air. Reports allege that at least five people have died in custody in the context of the state of emergency. 

3.    Journalists, human rights defenders and judicial actors are under attack. 

Journalists and human rights defenders that have spoken out against the state of emergency have been subject to harassment and stigmatization by authorities on social media and other channels. This harassment against journalists in El Salvador has reached such levels that some have felt the need to leave the country, fearing reprisals. Judges and defense lawyers have also reportedly been subject to increased scrutiny. 

The state of emergency and related measures come within a broader context of shrinking civic space in El Salvador. In May 2021, the Legislative Assembly – controlled by Nayib Bukele’s “Nuevas Ideas” Party – voted to remove judges from the Constitutional Chamber of the Supreme Court – a move widely interpreted as an attack on judicial independence in the country. The Legislative Assembly has also tried to introduce legislation restricting foreign funding for civil society organizations, which, if approved, would have significantly hampered the work of NGOs in El Salvador. President Bukele frequently disparages and stigmatizes the work of NGOs and journalists on social media; and in January 2022, it was revealed that least 35 people, mainly independent journalists from outlets critical of the government, had been the object of Pegasus spyware infections.