Background
Following a proposal by President Bukele, the Legislative Assembly extended the state of emergency, which remained in place at the end of 2023. The assembly enacted and amended numerous laws that violated the right to a fair trial. International human rights mechanisms expressed their concerns that the extension did not conform with the exceptional and temporary nature required for the invocation of a state of emergency.
In October, President Bukele officially registered himself as a presidential candidate, despite objections from legal experts and civil society organizations citing the constitution’s prohibition of immediate re-election.
Arbitrary detention and unfair trials
Between the start of the state of emergency on 27 March 2022 and the end of 2023, more than 73,000 detentions were recorded. Most detainees were accused of “illegal associations”, a crime linked to gang activity and membership. The majority of the detentions carried out under the state of emergency were arbitrary because they violated due process guarantees through absence of clear judicial orders, prolongation of administrative detentions, lack of precise information from authorities to detainees’ families regarding their whereabouts, and concealment of the identity of the judges processing detainees. The state of emergency particularly affected impoverished and marginalized communities, deepening their vulnerability.1
National protection mechanisms, such as the Human Rights Ombudsperson’s Office, recorded a significant increase in requests for the verification of detainees’ whereabouts. Under the state of emergency, however, its capacity to fulfil its mandate was limited and it was unable to access all detention centres. The Supreme Court of Justice was also denounced by civil society organizations for its ineffectiveness in processing habeas corpus appeals, increasing detainees’ vulnerability.
Although authorities reported the release of more than 7,000 detainees, 85% of these individuals were not acquitted of the “illegal associations” charges and continued to face legal proceedings that remained pending. The risk of these individuals undergoing unfair trials was exacerbated by regulations that allowed summary trials and hindered the right to effective defence.
Torture and other ill-treatment
The Salvadoran penitentiary system faced critical levels of overcrowding, reaching a 300% occupancy rate, equivalent to more than 100,000 inmates. This accounted for 1.14% of the country’s general population and positioned El Salvador as having the highest rate of incarceration globally, according to local civil society organizations.
Many detainees reported being subjected to torture and other ill-treatment, including restrictions on food, water and access to sanitary facilities, lack of adequate medical care, and excessive use of force by prison guards. Women inmates lacked attention to their specific needs, including access to reproductive health services and protection against gender-based violence. Since the start of the state of emergency, at least 190 deaths caused by torture and lack of medical care had occurred in state custody.2
Several entities, such as the Attorney General’s Office and the Human Rights Ombudsman’s Office, did not effectively and diligently investigate these cases. The Attorney General’s Office ordered the majority of investigations to be archived. The Inter-American Commission on Human Rights requested access to perform an independent assessment of prison conditions, but the authorities refused.
Freedom of expression, association and assembly
El Salvador saw an increase in protests in 2023, as the situation in the country deteriorated under the extended state of emergency. Protesters denounced human rights violations under the state of emergency; demanded respect for economic, social, and cultural rights; and defended land and territory. The authorities’ obstructive response to these legitimate expressions of social discontent violated people’s right to freedom of expression and peaceful assembly. The authorities’ actions included stigmatization and questioning the legitimacy of protesters by high-ranking state officials through social media and public statements; intimidation and threats towards, and excessive surveillance of, organizers and protesters; restrictions on movement by blockading roads and access points to specific areas to prevent participation in these activities; and the arbitrary detention and criminalization of protesters.
The government undermined the autonomy and effectiveness of labour unions. The Movement of Dismissed Workers recorded the disbandment of 10 unions in 2023 due to the elimination of an equivalent number of government departments. Additionally, the government imposed unwarranted restrictions on union registration processes and the accreditation of union boards. Authorities also disregarded trade union immunity, failed to comply with collective bargaining agreements, and engaged in actions that jeopardized the job security of public sector employees.
According to local organizations, in 2023 at least 16 trade unionists were arrested and charged with offences such as public disorder and resisting arrest during peaceful protests. Under the framework of the state of emergency, at least three trade unionists were arbitrarily arrested, having been falsely accused of the crime of “illegal associations”.
According to a 2022 investigation, 35 journalists and activists in El Salvador were subjected to Pegasus software-enabled espionage between 2020 and 2021. Despite appeals by the Association of Journalists of El Salvador (APES) to the General Attorney’s Office to investigate these incidents and the reports of hacking of WhatsApp accounts, no findings had been released 21 months later, according to APES. The absence of a specialized team and the lack of a prompt, effective, impartial, and independent investigation have fostered widespread impunity and eroded independent journalism’s trust in the authorities.
APES submitted a report about the impact of the state of emergency on press freedom. According to their records, between March 2022 and July 2023, there were 222 violations of freedom of expression and 385 cases of harassment against journalists and media outlets, most commonly digital attacks and stigmatizing statements. APES reported six instances of journalists being compelled to flee the country in the first half of 2023 due to escalating threats, intimidation, assaults, and the looming threat of criminalization. In April, El Faro, a digital media outlet, moved its administrative operations to Costa Rica because of the hostile climate towards journalism in El Salvador.
Human rights defenders
The authorities continued to stigmatize and harass human rights defenders through social media. This involved posting threatening content, such as statements by state officials that incited harassment and attacks on the reputation of individuals and organizations, and the spread of misinformation through digital platforms to discredit and intimidate critical and dissident voices. This campaign of harassment affected the integrity, security, and personal well-being of human rights defenders and journalists, and limited their freedom of expression and association.
The state of emergency was used to criminalize human rights defenders by misusing anti-gang laws to justify their arbitrary detention. Most of these cases involved people defending land, territory and natural resources, and labour rights. International human rights mechanisms criticized the state for its lack of clarity and investigation concerning these detentions, as well as the absence of due process guarantees.
Right to information
There was a lack of transparency and severe restrictions on access to public information, and El Salvador was excluded from the Open Government Partnership. The government hindered access to essential data by imposing systematic restrictions on information and excessive requirements for providing data. Government departments such as the Bureau of Prisons and the Ministry of National Defence failed to meet international standards on requirements to restrict access to security information. The Legislative Assembly expedited legislative processes, restricting public participation in discussions around new laws, which limited transparency.
Sexual and reproductive rights
The total ban on abortion, which led to women facing imprisonment for charges relating to obstetric emergencies, remained in force, violating sexual and reproductive rights. Due to the ban, at the end of 2023 at least 21 women were facing legal proceedings on charges relating to obstetric emergencies.
Right to truth, justice and reparation
Authorities continued to fail to adopt adequate legislation to guarantee the rights of the victims of crimes under international law committed during the civil war between 1980 and 1992. There was little progress in the investigation and prosecution of individuals suspected of criminal responsibility for crimes committed during the armed conflict.
