Silence Is Not an Option: Executive Summary
Summary: Cristosal’s Report on the Second Year under the State of Exception
In March of 2022, at the request of the President, the Salvadoran Legislature declared a state of exception, suspending several constitutional rights in response to an outburst of gang violence. Two years into what was supposed to be a temporary emergency measure, 79,211people have been arrested, and at least 265 people have died in state custody. Drawing from a two-year, in-depth investigation, Cristosal presents evidence of systematic and widespread human rights violations including arbitrary detentions, torture, and deaths that raise serious concerns about the potential commission of crimes against humanity by the Salvadoran State.
Methodology
The report is the sixth installment published by Cristosal in an ongoing investigation to determine the impact of the state of exception on human rights in El Salvador. Imposed in response to gang violence, the state of exception has suspended constitutional guarantees and granted unbridled powers to Salvadoran security forces.
A multidisciplinary team of legal experts, data analysts, and forensic and field researchers conducted the research. Cristosal has made multiple requests for public information about the state of exception. However, the Salvadoran State has systematically denied access to this information.
The research then focused on primary source data including more than 478 testimonies and interviews with family members, funeral home employees, and other sources including burial and exhumation records, autopsy and medical reports, birth and death certificates, etc. A forensic doctor reviewed and analyzed autopsies, records from the Salvadoran Institute of Forensic Medicine, death reports, photographs, and interviews.
Finally, Cristosal used qualitative analysis to verify deaths and examine the broader context of human rights violations under the state of exception.
Our key findings are as follows:
- Human and Societal Cost
The state of exception impacts the lives of not only detainees but also their families and the very fabric of Salvadoran society. Our research found the populations most impacted include people living in impoverished communities, women and girls, members of the LGBTQ+ community, and victims of gang violence.
In the absence of male relatives detained in the state of exception, women are forced into the multiple roles as breadwinners, caretakers of children and elderly family members, and advocates for their detained family members which includes romantic partners, siblings, cousins, uncles and other men in their lives. Cristosal has documented cases of women and girls who have suffered sexual abuse at the hands of state security forces. For example, in Soyapango, a member of the armed forces raped a 13-year-old girl, sending her to the hospital for several days.
Women imprisoned under the state of exception suffer from a lack of medical care, including access to menstrual products as well as insufficient pre- and postnatal care for pregnant women. As a result, women are not only contracting vaginal infections but those who were pregnant upon incarceration have suffered miscarriages and post natal deaths of newborn children. The testimonial evidence also indicates that prison staff have engaged in degrading practices such as forced nudity of female detainees and coercion of women into sexual acts in exchange for food, clothes and medicine.
The report also demonstrates the impact that torture and death has had on children and families of the deceased. Cristosal has confirmed that the 265 verified deaths of people in pretrial detention left 176 children orphaned. The psychological and economic distress of children with incarcerated parents has led to the need to abandon their studies, violating their right to education. Based on data from a national survey conducted in 2022, Cristosal projects that under the state of exception, the government has taken into custody the primary caregivers of more than 62,000 children under the age of 15. Cristosal also received cases of children tried as adults, but, given the lack of transparency by authorities, there is no accurate data on the total number of juveniles detained during the regime.
Increased militarization has negatively impacted communities, with particularly negative consequences for LGBTQ+ individuals who suffer aggression and abuse. The report documents the use of military raids on communities, including those known for their strong community organization and human rights advocacy. It also cites two emblematic cases in communities that were militarized in the run up to the elections in the departments of Chalatenango and Cabañas. Cristosal identified 21 human rights defenders who have been arbitrarily detained since the beginning of the state of exception in 2022, indicating the state of exception may be used to intimidate and criminalize dissident voices in society.
- Failure of the State to Guarantee the Rights of Prisoners
Evidence shows that the Salvadoran State has failed to comply with its obligation under international law to respect the lives of those in custody. Forced into deplorable conditions, incarcerated persons are regularly denied their right to food, sanitation, health, and the right even to breathe freely because of severe overcrowding. Testimonies from detainees revealed the use of torture, as well as other forms of cruel, inhumane, and degrading treatment.
Interviewees reported that they were subjected to long periods of confinement where they were denied access to light, water, hygiene, and food for several days. They also mentioned the use of teargas, being hung by the wrists, and forced exercise as forms of punishment imposed by prison guards. In the case of a 26-year-old woman who was detained in the Apanteos Prison, who was forced to perform «1,200 squats» and was then hung by her wrists for nearly two hours in reprisal for advocating for a fellow detainee.
The report also documents the deterioration in the health of incarcerated persons including cases of respiratory conditions, renal failure, and malnutrition. Prisoners with chronic illnesses or those who have developed illness as a consequence of the harsh conditions and physical abuse in prison were regularly denied access to medicine and medical attention. This refusal to provide medical care is one of the principal causes of death in the cases documented in this report.
Cristosal verified the deaths of 265 people in state custody or shortly after their release, including 244 men, 17 women, and 4 recently born children. Photographic evidence showed bodies that were bruised and had lacerations, dislocations, breaks, and other serious injuries. For example, one 30-year-old man died just after three months in detention as a result of “asphyxiation.” The autopsy photographs reveal that the strangulation could have been committed with an object like a stick or baton.
The state also has failed to uphold international standards regarding the deaths of persons in its custody. It regularly failed to investigate incidents with due diligence or to determine criminal responsibility. Testimonies gathered reveal that state authorities often did not inform families of their loved ones’ deaths, but instead they received the information from funeral homes. Others were forced to wait weeks before retrieving their loved ones’ remains because of a lack of information as well as the inability to cover the cost of burial.
The investigation found that family members avoid reporting or even talking about the deaths of their relatives detained for fear of reprisals. Some of the incarcerated people interviewed said that prison authorities were using mass graves to bury deceased detainees. Due to the limited access to information of what is happening within the prisons, the number of deaths of detainees under the state of exception is likely to be much higher than the 265 cases investigated by Crsitosal. The state, however, continues to deny these claims.
- Complicity of the Justice System
Cristosal’s legal team has been able to gather information and conduct legal analysis regarding the judicial proceedings of 1,178 cases of people detained in the state of exception. From this sample, Cristosal determined that 100% of the arrests were carried out in flagrante delicto or “in the act” and were not the product of prior investigation justifying the detention. In 97.2% of the cases, the only charge was for the alleged crime of “illicit association,” defined in the Salvadoran penal code as when three or more people gather “with the intention of committing a crime.” Cristosal’ analysis of these cases determined that none of the arrests in flagrante comply with the legal standards to justify the detention and were therefore arbitrary in nature.
Despite the lack of legal procedure for making the arrest, judges ordered pretrial detention in 97% of the cases and because of a series of legislative and judicial reforms, people detained in the state of exception will likely spend at least four years in pretrial detention before the public prosecutor’s office presents evidence to the court. In the cases reviewed for the report, the public prosecutor’s office had not provided evidence or accused any of the detainees of serious crimes like homicide, rape, or extorsion which have come to be the hallmarks of the criminal activies of the Salvadoran gangs. The Salvadoran judicial system under that state of exception is violating due process rights in mass and is currently failing to successfully investigate and prosecute serious crimes and organized criminal structures.
Conclusion
A state of exception, as defined in the Salvadoran Constitution, is meant to be a temporary measure to respond to emergencies. Under the law, the government can temporarily suspend rights. However, two years later the state of exception has become a permanent repressive measure under which serious human rights violations, including arbitrary detentions, torture and deaths, have become state policy.
Under the state of exception, the judicial system has nullified due process rights de facto. It has shielded the state from accountability for abuses of power and grave human rights violations and furthermore has failed to guarantee access to truth and justice for the multitudes of victims of gang violence even while creating a new generation of victims at the hands of the state.
In public opinion polls Salvadorans consistently express a sense of security gained under the state of exception, but a growing majority are increasingly concerned about human rights violations, especially the impacts on women and children. Cristosal’s report demonstrates that the perceived security gains in the short-term come at the cost of the rule of law and bears a heavy burden of mass human suffering. Salvadorans, and the whole of the human family, deserve a just peace, security and rights.