Marien Rivera

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Juan turned twenty years old a month ago. As a birthday present, his mother got a lawyer to transfer him from Izalco to Apanteos, both prisons in El Salvador. Juan has already been in custody for a year and a half, yet his trial has been postponed for the third time. Officially, he is being accused of belonging to a “Barrio 18” extortionist gang cell, although, in reality, Juan’s most serious “offense” is inhabiting the impoverished neighborhood of Las Palmas. This is a common scenario resulting from massive raids against young people pigeonholed as gang members. Two years ago, a series of «extraordinary measures» were implemented in prisons. As a result, transfers of prisoners to their own hearings were suspended, family visits were canceled and commissaries closed; since then, inmates have no access to most essential goods. From the time Juan entered prison, his only clothes have been the very same briefs he was wearing at the time of his arrest. Everything else was taken away. When available, he uses water solely for his personal hygiene. In Izalco, Juan shared a tiny cell with other sixty inmates, thus, it was not uncommon to be forced to spend twenty-four hours a day with portions of his body hanging outside the prison cell. Despite the unbearable overcrowding, due to these new measures, authorities drastically reduced patio hours: they were allowed to step out of their booths three times a week, just for an hour. Upon his arrival at Apanteos, Juan was diagnosed with advanced stage tuberculosis, but there is no available treatment for him. His chances of reaching twenty-one are growing slimmer every day. Like Juan, at least another 18,000 inmates are awaiting trial;[1] most of them are young people under 25 years of age, holding no more than basic education, branded as gang members.[2]

El Salvador continues to climb the list of nations with the highest pretrial detention rates in Latin America.[3] In the last four years, the population in pretrial detention increased by 43.3%.[4] It can be difficult to really grasp what is wrong with this scenario until you imagine yourself locked up for years in a ruthless dungeon, without understanding the charges against you and with no news regarding your trial. While this is a common reality in the hemisphere, it does not mean that it is tolerable one. In functional democracies that respect human rights, authorities must be able to prove whether pretrial detention is the only measure available to ensure appearance at trial or if other non-custodial options can be used, such as house-arrest. That is and should be the rule. In El Salvador, on the other hand, the process is executed backwards. First the authorities arrest and imprison an individual and later, with some luck, they gather evidence to prove his or her involvement in criminal activity. They generally do not put a lot of effort into that task either. With alarming frequency, hundreds of people are being detained after single police raid and, in order to grant pretrial detention for those individuals, many judges are admitting the sole testimony of a single police or protected witness identifying them as gang members as the only piece of evidence to place the whole group behind bars.[5]

Less rights… more safety?

Throughout the world, governments employ hardline policies when criminal activity has escaped their control. The population, appalled, is often willing to relax due process protections within criminal procedure if by doing so it is guaranteed that criminals end up in jail. The epitome of that scenario is El Salvador. For several years, the Salvadoran population has faced severe crime levels, with one of the highest homicide rates in the world.[6] There is no doubt that, in this country, crimes committed by gangs have especially crude characteristics. Therefore, it is far from surprising that society have found it reasonable for the government to implement radical and urgent security policies. A very illustrative fact is that, according to a study conducted by the Central American University´s Institute of Public Opinion (IUDOP), more than 60% of the population would approve of or understand the need for police operations that might end in extrajudicial executions with a social cleansing purpose.[7] In the face of public pressure, raids and arrests are on the rise and, today, El Salvador is the country with the second highest incarceration rate in the continent – just below the United States – with 500 people deprived of freedom for every one hundred thousand inhabitants.[8]

Of course, as it has been proven over and over again, increased incarceration numbers do not translate into a decline in crime.[9] No other country better proves this fact than El Salvador. Faced with this undeniable reality, the new government narrative to justify its aggressive security policy has focused on communicating data that connects the recent criminal boom with criminal strategies that have been planned and partly executed from prisons.[10] Under this argument, on April 1, 2016, the aforementioned extraordinary measures were enacted, aimed at controlling any communications between persons deprived of liberty and the outside world. Based on this law, prison authorities suspended all family visits, imposed severe restrictions on defense lawyers and, as of this moment, the International Committee of the Red Cross has been banned from accessing prisons.[11] With the objective of distancing inmates from their communities, forced transfers from one prison to another are being carried out. Despite the extensive movement of inmates for security reasons, any transfer to attend court hearings has been suspended. Defendants can only participate during the trial virtually and without access to their attorney.

The depths of an atrocious humanitarian crisis

According to a report published in June 2017 by the Salvadoran Office for the Defense of Human Rights (PDDH, Spanish acronym) meant to assess the effects of such extraordinary measures, habitability conditions in prisons have become unsustainable.[12] Among the thousands of complaints the PDDH has received alleging human rights violations resulting from the implementation of this security policy, the most serious concern is the tuberculosis epidemic that has erupted within prisons. Eight months after the current government measures entered into force, cases of infection had increased by 829%.[13] Recently, authorities confirmed that, in a single segment of the Izalco prison, more than 1,200 people could be infected.[14] In addition to the imminent risk of a massive contagion, the main concern is that, when it remains unattended, tuberculosis can be lethal.[15] Inmates of Izalco know this better than anyone: in this year only, they have testified the death of twelve cellmates due to the lack of medical care.[16]

Surprisingly, the report issued by the PDDH – which strikingly details the humanitarian crisis within prison facilities – concludes by suggesting that the government’s strategy should be extended for another year. Furthermore, the PDDH defends its effectiveness by proposing a causal relationship between the current policies’ entry into force and the fall in the number of homicides reported throughout the country.[17] Although devoid of the most basic statistical rigor, the line of reasoning proposed in the report served as a strong justification that enabled Congress to extend the extraordinary regime for one more year, that is, until March 31, 2018. Meanwhile, local press has documented a contradicting reality: not only has the new penitentiary policy has not reflected an increase on security, it can be associated with the highest homicide rates in the last four years.[18]

By changing a couple of names, it would not be hard to believe that the scenario that was just portrayed corresponds to prisons in Mexico, Bolivia or Honduras. The vast majority of Latin American nations present overcrowding and conditions of extreme neglect relatively similar to those described above. It can also be said with sad certainty that systematic due process violations are a continental illness. However, in El Salvador, new red flags have been raised since the Justice and Security Minister conducted a massive media campaign to present isolation cells for those individuals who, allegedly, have attempted attacks against security forces: two by four meters dungeons, without access to light or ventilation.[19] And, unlike seemingly analogous practices, this kind of isolation is not intended to be provisional. It is not for hours or days, but months or years the time that people must survive in there. Despite knowing that prolonged and indefinite solitary confinement blatantly violates international law, the government has decided to communicate its strategy with great fanfare. However, this advertising maneuver reveals a state policy with a strong and clear name: it is called torture.[20]

Given the unorthodox circumstances under which police and military apprehend people, it would be reasonable to assume that an arbitrary criminal charges can be set against the ordinary citizen. However, this is far from being accurate. Individual and mass arrests take place in underprivileged neighborhoods inhabited by people living under complex conditions of vulnerability. This happens especially to those who cannot defend themselves. Nevertheless, once the power of criminal prosecution is used illegally against a specific sector of the population, little time passes for the same strategy to be justified for other social, ideological or political reasons. The risk is not only real, it is enormous. In the long run, we could all end up in Juan´s shoes.

The good news is that El Salvador is not the only country that has had to overcome a complex crime context. Various experiences from other countries suggest that the process of strengthening and protecting the democratic civil order is possible through a citizen security approach. However, three ideas must be at the core of such enterprise. First, violence cannot be solved through actions aimed solely at reducing crime, but through multifaceted community work that must include the improvement of a population´s living conditions. Second, impunity sends the signal that committing crimes without consequences is perfectly possible. This makes crime a very profitable activity and, therefore, epidemic. In that sense, the strengthening of the justice system must be a fundamental pillar of any security strategy. Finally, constitutional rights -including the rules of due process- should not be understood as technicalities but as mechanisms of accountability for the authorities involved in the criminal process; they are guarantees against arbitrariness.

Following his recent visit to El Salvador, the United Nations High Commissioner, Zeid Ra’ad Al Hussein, urged President Salvador Sánchez Cerén to take immediate action to revoke the extraordinary measures.[21] Hopefully this international attention call will suffice to put an end to this security policy. Benjamin Franklin rightfully said that those who renounce an essential freedom to buy a little momentary security do not deserve neither freedom nor security and end up losing both.

[1] Official penitentiary statistics report 12,951 people in provisional detention. However, we must add the number of detainees in bartolinas (administrative detention centers), which, according to figures from the National Civil Police, amount to more than 6 thousand. The statistics of the penitentiary system can be consulted here: http://www.dgcp.gob.sv/images/stories/Estadistica%20Penitenciaria/2017/Octubre/Estadistica_General_30-10-17.pdf. The reference on the number of people detained in bartolinas can be consulted here: https://www.laprensagrafica.com/elsalvador/Hacinamiento-del-300–en-bartolinas-20170830-0100.html;

[2] Andrade and Carrillo, «The Salvadoran Penitentiary System and its Prisons» IUPOD, 2015. Available here: http://www.uca.edu.sv/iudop/wp-content/uploads/El-Sistema-penitenciario-salvadore%C3% B1o-y-sus-prisiones.pdf

[3] Global Peace Index, 2017. Available here: https://www.datosmacro.com/demografia/indice-paz-global/el-salvador

[4] IACHR, «Report on measures aimed at reducing the use of pretrial detention in the Americas.», 2017, p. 26

[5] Lemus, Efrén, Univision’s journalistic note of July 27, 2017. Consultable here: http://www.univision.com/noticias/america-latina/el-salvador-lanza-una-megarredada-contra-pandillas-for- receive-al-fiscal-jeff-sessions

[6] Global Peace Index 2017, Op. Cit.

[7] Cruz, Aguilar and Vorobyeva, «Legitimacy and Public Trust of the Police in El Salvador» IUDOP, July 2017. Available here: http://www.uca.edu.sv/iudop/wp-content/uploads/Legitimidad-y -confidence.pdf p.19

[8] Pine, Roque. Journalistic note for the newspaper El Mundo of October 5, 2016. Available here: http://elmundo.sv/el-salvador-tiene-el-segundo-lugar-por-hacinamiento-carcelario/

[9] Roeder, Eisen, and Bowling, «What caused the crime decline?» Brennan Center, 2015. Available at: https://www.brennancenter.org/sites/default/files/analysis/What_Caused_The_Crime_Decline.pdf

[10] Explanatory statement of Decree 231 of the Legislative Assembly through which extraordinary measures in the penitentiary area were approved. Available here: http://www.jurisprudencia.gob.sv/DocumentosBoveda/D/2/2010-2019/2016/04/B7836.PDF

[11] As of the entry into force of the measures, the defense lawyers are required to present, in addition to the lawyer’s credentials, a set of documents such as criminal records, police solvency and a special document issued by the Supreme Court of Justice to prove the qualification for the exercise of the legal profession. Once the documentation is gathered, the exercise of the right to a technical defense cannot always be effective because de facto they are not allowed to enter or, when this happens, they have a limited time of no more than five minutes. https://elfaro.net/es/201611/salanegra/19550/El-infierno-extraordinario-de-las-c%E1rceles-para-pandilleros.htm

[12] PDDH, «Preliminary Report on the impact of extraordinary measures to combat crime, in the field of human rights.» June 2017. Available here: http://www.pddh.gob.sv/wp-content/uploads/2017/08/Informe-preliminar-sobre-el-impacto-de-las-medidas-extraordinarias-para-combatir -the-delinquency-in-the-scope-of-the-DDHH-1.pdf

[13] Author´s calculation based on data included in the Prosecutor’s Report for the Defense of Human Rights (PDDH) and the declarations of the prison authorities this year. https://www.laprensagrafica.com/elsalvador/1200-reos-del-penal-de-Izalco-podrian-tener-tuberculosis-20171012-0013.html

[14] Salguero, Marcos. Journalistic note of October 12, 2017 for the Graphic Press. Available here: https://www.laprensagrafica.com/elsalvador/1200-reos-del-penal-de-Izalco-podrian-tener-tuberculosis-20171012-0013.html

[15] WHO, Descriptive note on tuberculosis. October 2017. Available here: http://www.who.int/mediacentre/factsheets/fs104/es/

[16] Journalistic note for ElSalvador.com of June 17, 2017. Available here: http://www.elsalvador.com/noticias/nacional/363466/dos-reos-del-penal-de-izalco-han-muerto-en- the-last-24-hours /

[17] Note consulted in the transparency portal of the government of El Salvador. Available here: http://www.transparenciaactiva.gob.sv/el-salvador-ya-no-es-el-pais-mas-violento-del-mundo

[18] Escalante and López. Journalistic note for ElSalvador.com of September 28, 2017. Available here: http://www.elsalvador.com/noticias/nacional/402227/semana-violenta-deja-203-homicidios-en-el-salvador/

[19] Public statements available in the following link: https://www.youtube.com/watch?v=xQbOJsw7-9k&feature=youtu.be

[20] García Asto, para. 221. Likewise, Lori Berenson Mejía, para. 102; Tibi, para. 150; «Juvenile Reeducation Institute», para. 152; Caesar, para. 96, Fermín Ramírez, para. 118; Raxcacó Reyes v. Guatemala. Fund, Reparations and Costs. Judgment of September 15, 2005. Series C No. 133, para. 95; García Asto, para. 221, and Criminal Miguel Castro Castro, para. 315

[21] Statements by the United Nations High Commissioner for Human Rights Zeid Ra’ad Al Hussein at the end of his mission in El Salvador, San Salvador, November 17, 2017. Available here: http://www.ohchr.org/SP /NewsEvents/Pages/DisplayNews.aspx?NewsID=22412&LangID=S

Marien Rivera, Program Officer, DPLF