a. Arbitrary Deprivation of Life and Other Unlawful or Politically Motivated Killings
There were reports that the government or its agents committed arbitrary or unlawful killings, largely stemming from deaths of detainees while in prison during the state of exception. The Attorney General’s Office investigates whether security force killings were justifiable and pursues prosecutions. The National Civilian Police (PNC) reported that as of August, no police officers had been accused of homicide.
On August 15, the Human Rights Ombudsman’s Office (PDDH) stated it had opened 28 investigations of prisoner deaths during the state of exception. Human Rights Ombudsman Apolonio Tobar said the investigations were based on complaints from persons who attributed the deaths of their relatives to the state of exception. The investigations aimed to examine the culpabilities of the Attorney General’s Office and if prisoners were victims of neglect or murder while in government custody (see section 1.d.). On August 26, the daily newspaper La Prensa Gráfica reported that 73 detainees died in prison following the start of the state of exception. Government officials stated they were investigating all deaths in prison to determine if they were committed by government authorities but that, to date, they had not identified any such cases.
b. Disappearance
Under the state of exception, there were regular reports that security and law enforcement officials arrested persons and did not inform their families of their whereabouts. On May 31, Cristosal, a human rights group, reported that of the 808 complaints the organization documented during the first two months of the state of exception, 65 percent involved cases in which the whereabouts of the arrestees were unknown.
Media and human rights groups reported that nongovernment-related disappearances, which they and the families of those disappeared attributed to gang violence, continued to occur on a regular basis. The government reported varying numbers of disappearances and sporadically declined to provide media with numbers and additional data on disappearances, often claiming the statistics were classified. The PNC reported 255 disappearances from January to August. In May, however, the PNC declared to La Prensa Gráfica there were 577 reports of missing persons between January and the end of May. In October the Institute of Legal Medicine (IML), the forensics department under the Supreme Court, reported that only 129 persons had been reported missing from January to September. On May 19, the international division of the Swiss Broadcasting Society reported the leading forensic expert in the Prosecutor’s Office had acknowledged on several occasions that if a person spent more than eight days missing, there was a high probability the person had been killed and buried in a clandestine grave.
On May 16, officials from the Attorney General’s Office and PNC told family members of the disappeared they had suspended investigations into disappearances because they were prioritizing activities supporting the state of exception.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and Other Related Abuses
The law prohibits such practices, but there were credible reports that government officials employed them at times. Media and civil society allegations of abuse and mistreatment by police and prison guards significantly increased after the introduction of the state of exception in March.
The PNC reported that by August 1, it had registered 24 complaints of police officer misconduct. In contrast, from January to July, the Office of the Inspector General of Public Security reported it had received 50 complaints of physical abuse, two complaints of sexual abuses, and four complaints of sexual harassment by police officers. The PDDH reported it had received nine complaints of cruel, inhuman, or degrading treatment; 58 cases of maltreatment; and 15 complaints of disproportionate use of force by PNC officers from January to July. In the same period, the PDDH received one complaint of torture; three complaints of cruel, inhuman or degrading treatment; six complaints of maltreatment; and one complaint of disproportionate use of force by the armed forces.
On August 22, the PDDH reported it had received more than 400 complaints of possible abuses during the state of exception. Ombudsman Tobar provided results of the PDDH investigations of complaints received in the first month of the state of exception in the San Salvador and Cuscatlán Districts. Tobar said the PDDH did not find human rights abuses in 95 percent of the 173 complaints from San Salvador and did not find culpability by officials in any of the 73 cases in Cuscatlán. The PDDH did not visit prisons to verify prison conditions or prisoner treatment until 107 days after the start of the state of exception, and in November the PDDH announced prison officials had once again denied them access.
Human rights organizations also received complaints of abuse and mistreatment by police and prison guards. On August 10, the University Observatory of Human Rights (OUDH) reported it had received reports of 28 cases of maltreatment, 12 cases of disproportionate use of force, seven cases of cruel treatment, and six cases of intimidation. All the reported cases occurred during the state of exception. OUDH coordinator general Danilo Flores alleged the complaints attested to the existence of torture. The OUDH highlighted the case of a boy, age 14, who was detained in police holding cells where security officers allegedly submerged his face in water and squeezed his fingers with pincers to force him to admit that he belonged to a gang. He also claimed he was placed in a cell with gang members who beat him. He was vomiting blood when he was eventually released. After his release, he reported being harassed by police officers in his home. He eventually left the country to avoid further police harassment.
On April 4, La Prensa Gráfica reported a man died after his arrest on March 30 in El Refugio, Ahuachapan. The IML stated that the cause of death was severe blunt chest trauma and that he had other injuries to his eyes, knees, and shoulders. Witnesses to the arrest said they saw PNC officers beat him during the arrest, demanding that he confess to being a gang member. The PNC declared he received his injuries from other inmates after he was transferred to Izalco Prison.
On May 2, Human Rights Watch and Cristosal reported they had obtained first-hand information on 34 cases of abuse by police. The organizations interviewed victims, their family members, lawyers, and civil society organizations and analyzed medical reports, photographs, and documents to corroborate the information from the interviews. Witnesses alleged they saw security forces beating persons while making arrests and threating family members of the detained persons with arrest if they did not “stop asking questions.” In one documented case, a man, age 21, was arrested on April 3 and held incommunicado. On April 19, a hospital informed his family that he had died of “hypertension” and “sudden death.” No autopsy was performed, however, and photographs of his body showed injuries.
The judiciary continued prosecuting several cases from the civil war against members of the armed forces. The judge in the 1981 El Mozote massacre case heard witness testimony, and the judge in the case of the killings of four Dutch journalists ordered the arrest of several high-ranking defendants. The government, however, continued to deny expert witnesses access to military archives to determine criminal responsibility for the El Mozote massacre, in defiance of a 2020 judicial order.
Impunity was a problem in the PNC and armed forces. Factors contributing to impunity included politicization and corruption. The government provided annual training to military units to diminish gross abuses of human rights, such as the training provided to the Marine Infantry Battalion by the navy’s legal unit on the need to respect human rights.
Prison and Detention Center Conditions
Prison conditions worsened during the state of exception. The number of prisoners more than doubled within several months of the beginning of the state of exception, leading to allegations of gross overcrowding, inadequate sanitary conditions, food shortages, a lack of medical services in prison facilities, and physical attacks.
Abusive Physical Conditions: According to the OUDH, prisons were at 119 percent of capacity prior to the state of exception but became more crowded as the number of detainees doubled. By May, more than 71,000 detainees were being held in a penitentiary system designed for 30,000. Released prisoners confirmed overcrowding was severe, with 80 prisoners held in cells built for 12 and insufficient room to lie down. On March 28, Director of Penitentiaries Osiris Luna stated prisoners would have only two meals per day, after President Bukele ordered food rationing due to the arrival of additional inmates. A released prisoner reported he received four ounces of rice and one tortilla per day. From the start of the state of exception, the government frequently advertised on social media the overcrowded conditions and lack of adequate food in the prisons as appropriate treatment for gang members.
Men and women were kept separately (see section 6, Children, for detention and imprisonment of children). While the worst conditions were reported in the men’s prisons, the domestic social organization Passionist Social Service reported that unsanitary conditions existed in detention centers for women and children.
In April Human Rights Ombudsman Tobar stated his office had investigated complaints of arbitrary detention during the state of exception and concluded detainees had not suffered treatment beyond what was allowed by law. In June the ombudsman visited a PNC detention facility, along with the director of penitentiaries and the minister of justice and public security. After the visit, the PDDH released a report and a series of videos of the visit, but media outlets and human rights organizations noted the ombudsman made no mention of the more than 50 deaths of prisoners during the state of exception, most of them occurring in Mariona Prison. Following the release of the videos, critics alleged that Tobar was no longer an independent defender of human rights. In October Tobar’s term ended and the Legislative Assembly elected Raquel Caballero de Guevara as the new ombudsperson. In November her office reported she had been denied access to prisons to verify conditions.
In November the Attorney General’s Office announced it was investigating 90 prison deaths, consistent with the growing count of deaths in prison kept by newspapers and human rights organizations. On August 26, La Prensa Gráfica reported that 73 detainees had died in prison since the beginning of the state of exception. The newspaper cited an IML report that 35 of the detainees died from causes such as strangulation, blunt force trauma, or other causes that could indicate torture or mistreatment while in detention. The IML determined an additional 22 detainees died due to inadequate medical care while in prison. Many families of prisoners reported that prison authorities refused to accept medicine that they brought, with some of those prisoners later dying. Another 12 inmates died from “undetermined causes,” and the newspaper confirmed reports of four more inmate deaths after the IML report was published. Several of the few detainees who were released reported that guards regularly beat detainees.
Gangs remained prevalent in prisons, and the PDDH reported that prisoners were divided into groups composed of gang members, gang collaborators, and those with no gang connections.
Administration: The PDDH has the authority to investigate allegations of abusive conditions in prison. The PDDH stated it had opened investigations into allegations of abuse or abusive conditions but not completed the investigations by year’s end. Although by law the PDDH should have free and immediate access to prisons, all prison visits were suspended in March 2020. Ombudsman Tobar, with other government officials, visited prisons twice during the year.
Independent Monitoring: The government suspended visits to prisons in March 2020 due to the COVID-19 pandemic. The suspension continued as of October, long after the government lifted all other pandemic-related restrictions. The suspension of visits to prisons included most institutional inspections, visits by international organizations, nongovernmental organizations (NGOs), churches, and others.
d. Arbitrary Arrest or Detention
The constitution prohibits arbitrary arrests, and the law provides for the right of a person to challenge the lawfulness of his or her arrest or detention in court. With the introduction of the state of exception in March, the government did not always observe these requirements.
Arrest Procedures and Treatment of Detainees
The constitution requires a written warrant for arrest except in cases where an individual is caught in the act of committing a crime. Prior to the state of exception, authorities generally apprehended persons with warrants issued by a judge and based on evidence, although this was frequently ignored when allegations of gang membership arose. Police generally informed detainees promptly of charges against them. The state of exception decree suspended the right to legal defense, as well as the requirement that persons be informed the reason of their arrest at the time of their detention, and it increased the number of days an individual could be held in detention before being formally charged.
The language of the state of exception decree did not detail changes to enforcement procedures, but in practice, security forces were no longer required to have warrants prior to making arrests or entering homes to make arrests. Because the decree also suspended the right to legal counsel, law enforcement agents did not wait for suspects to obtain counsel before questioning them. Although the law permits release on bail for detainees who are unlikely to flee or whose release would not impede the investigation of the case, most detainees under the state of exception were not released on bail.
The state of exception increased the number of days that a suspect could be held in detention before being formally charged in court from three days to 15. This extension, in addition to the sharp increase in the number of detainees, overwhelmed the court system. To process the increase, judges held mass pretrial detention hearings for up to 300 detainees at the same time. Public defenders responsible for representing the detainees reported being overwhelmed as their case load increased from 50 cases per month to 95 cases per day. One public defender told the digital newspaper El Faro that it was nearly impossible to mount an effective defense and that he had been unable to secure an alternative to pretrial detention in any of his cases.
The state of exception allowed detainees to be held for the first 15 days without any notification to family members, and local news outlets reported that even after 15 days, some families received no information. Family members of those detained frequently waited for days in large temporary encampments outside of prisons in hopes of receiving information regarding the location and condition of the detainee.
Arbitrary Arrest: As of July 27, the PDDH reported 283 complaints of arbitrary or illegal detention, compared with 25 from January to August 2021. Of the total, 247 involved detentions by police officers and 36 by soldiers.
Civil society entities also received complaints from the public regarding arbitrary arrests during the state of exception. As of August, the OUDH received reports of 1,673 cases of arbitrary arrests, and Cristosal reported that as of November 28, it received 3,139 complaints that persons were deprived of their rights during the state of exception, of which 97 percent involved arbitrary arrests. The specific grounds for complaints most frequently noted were that detainees were not given the reasons for their arrests, not presented with a warrant for arrest, and not given information regarding where or when they would have an initial judicial hearing. Government officials, however, claimed that arrests under the state of exception were not arbitrary. They stated the government had a database of more than 76,000 known gang members and arrests largely had been based on that database or other credible intelligence that a suspect was a gang member.
In the first months of the state of exception, police and military raided low-income and rural neighborhoods and carried out mass arrests. Local news sources and human rights groups alleged security forces frequently arrested persons for gang membership based solely on anonymous denunciations through a government hotline, for having tattoos, or for having any prior contact with the criminal justice system. El Faro gained access to court records for 690 individuals arrested under the state of exception for gang membership and found that 60 were arrested on ambiguous criteria such as having a “suspicious appearance” or being nervous.
The Salvadoran Police Workers Movement, a police union, received more than 20 complaints from police officers of being pressured to give false testimony to incriminate detainees and to reach a daily quota of arrests. The union also documented 50 cases in which agents refused to make arrests because they considered them arbitrary. On June 10, the founder of the union was arrested and held for four days on charges of “apologizing for crime,” which other members of the union denounced as reprisal by the police leadership for his public complaints (see section 7.d.). All charges against him were eventually dropped.
Pretrial Detention: Lengthy pretrial detention was a significant problem, exacerbated by the state of exception. COVID-19 pandemic closures had already severely delayed trial and hearing dates, and the sharp increase in cases during the state of exception further delayed cases. In November the Attorney General’s Office reported that of the more than 57,000 persons arrested under the state of exception, approximately 2,000 had been released. La Prensa Gráfica reported that as of October 26, the Attorney General’s Office had officially presented charges against 50,197 of those arrested.
The court system was slow to respond to habeas corpus petitions filed by those challenging their detention under the state of exception. The NGO Legal and Anti-Corruption Advisory Office reported that 1,825 habeas corpus petitions had been filed before the Supreme Court of Justice from the beginning of the state of exception until August 28. Of these, only eight had been granted a hearing.
e. Denial of Fair Public Trial
Although the constitution provides for an independent judiciary, the government did not respect judicial independence and sought to increase control of the judiciary.
Legislation passed in August 2021 forced all judges older than age 60 or with 30 years of experience to retire, giving the Bukele-appointed Supreme Court the right to name their replacements. Previously, in May 2021, the Legislative Assembly had dismissed all five magistrates of the Constitutional Chamber of the Supreme Court of Justice and replaced them with judges loyal to the Bukele administration. The move was widely criticized by human rights groups and legal experts as unconstitutional. Many legal experts saw these acts as steps to further cement the executive branch’s control over the nominally independent judiciary.
As of August 31, the PDDH received 112 complaints of a lack of a fair public trial, compared with 65 such complaints from January to August 2021.
Trial Procedures
The law provides for the right to a fair and public trial, but the state of exception suspended portions of these rights. For example, the right to be informed promptly of charges was suspended, and other rights were not always respected.
The law allows for trials for gang membership charges to proceed without the defendants’ physical presence, although with defense counsel participating in person. Virtual trials often involved group hearings before a judge, with defense lawyers in the courtroom but defendants appearing by video, unable to consult with their defense lawyers in real time. This practice continued with state of exception arrests, with many defendants tried virtually en masse, unable to hear the proceedings because of technical problems, complicated by the number of participants.
According to the OUDH, the demand for public defenders exceeded the capacity of the Public Defender’s Office. Since many judicial hearings during the state of exception occurred en masse with hundreds of defendants at the same time, defendant could not properly exercise the right to defense. As a result, even if the Attorney General’s Office failed to provide sufficient evidence demonstrating that defendants were affiliated with a gang, judges ordered defendants to remain in detention for six months.
In a June 3 statement on the state of exception, the Inter-American Commission on Human Rights reminded the government of its “international obligation to ensure judicial guarantees, due process, and access to a remedy for respect for rights and freedoms whose suspension is not authorized by international human rights law.” The commission condemned the practice of holding judicial hearings for up to 500 persons simultaneously, without allowing defendants to plead their individual cases. Likewise, the commission reported that the Office of the General Defender of the Republic did not have the capacity to handle all the cases in its remit.
Legal experts identified overall problems with the legal system outside of the state of exception, pointing to an overreliance on witness testimony, as opposed to the use of forensic or other scientific evidence.
Political Prisoners and Detainees
There were reports of political detainees. Media questioned the legitimacy of the detentions. The detainees were generally subjected to the same harsh prison conditions as convicted prisoners. Only one political detainee received visits from his family.
As of November, Ernesto Muyshondt, former mayor of San Salvador and prominent opposition politician, remained in detention following his June 2021 arrest, awaiting the conclusion of investigations and trial; no trial date was set. In January he filed a complaint to the courts stating that his rights had been violated by two prison guards. On June 6, the Eighth Investigating Court of San Salvador rejected a request for house arrest, which he had made due to health problems. Muyshondt told media he had been near death three times while in detention and recovered only when prison officials took him to a hospital outside the prison. He also said that while imprisoned, he was beaten, tied up, and photographed half naked and while sleeping. Muyshondt was arrested for misappropriation of tax withholdings to the detriment of the Public Treasury while mayor and also for electoral fraud and illicit associations for allegedly negotiating with gangs in exchange for votes in the 2015 legislative elections.
Three former Farabundo Marti National Liberation Front party officials, charged in July 2021 with money laundering and illicit enrichment, remained in detention. Defenders of the three claimed they were detained for political reasons, while the government asserted the charges against them were legitimate. Investigations of the case continued.
Civil Judicial Procedures and Remedies
The law allows litigants to submit civil lawsuits seeking damages for, as well as cessation of, human rights abuses. Domestic court orders generally were enforced, except in cases involving political prisoners. Most attorneys pursued criminal prosecution and later requested civil compensation. Courts were insufficiently independent, however, to provide effective civil remedies for human rights abuses.
f. Arbitrary or Unlawful Interference with Privacy, Family, Home, or Correspondence
The constitution prohibits such actions, but there were allegations the government tracked journalists, members of NGOs, and political opponents and collected information from private messages on their cell phones. On February 1, the Legislative Assembly passed legislation expanding the government’s ability to do so. Under the state of exception, reports of security forces entering homes without warrants increased.
On January 12, El Faro published the results of an analysis by the international NGO Citizen Lab and Access Now. The analysis, certified by Amnesty International, detailed conclusive evidence that from September to December 2021, the iPhones of 35 journalists and civil society actors were infiltrated by the Pegasus spyware created by NSO Group, an Israeli firm. Targets included journalists working at media outlets El Faro, Gato Encerrado, La Prensa Gráfica, Revista Digital, Disruptiva, Diario El Mundo, El Diario de Hoy, and staff at several NGOs, including Fundación DTJ and Cristosal. The report also said the targets remained under constant digital surveillance from at least June 29, 2020, to November 23, 2021. Two-thirds of El Faro’s staff were surveilled with the spyware, which occurred during the period they worked on major events in national politics in 2020 and 2021. The analysis also discovered conclusive evidence of extractions of information from cell phones of 11 El Faro employees. Experts said Pegasus allows for the extraction of anything stored in a mobile phone, including photographs, conversations, audio files, and contacts. The report did not rule out the theft of information from other brands of cell phones.
On March 16, the Inter-American Commission on Human Rights held a hearing on the Pegasus spyware hacks in the country, calling them a “vertiginous deterioration of press freedom.” Aside from the Citizen Lab and Access Now investigation, multiple representatives from other media outlets and NGOs reported receiving warnings from Apple that their phones may have been penetrated by Pegasus, indicating that the spying likely went beyond the El Faro journalists. NSO Group confirmed that it licenses the Pegasus software only to national governments.
On February 1, the Legislative Assembly approved five changes to the criminal code regarding computer crimes. These authorize the Attorney General’s Office to carry out “undercover digital operations that are necessary” without a court order; establishes “digital undercover agents” to surveil “digital documents, electronic messages, images, videos, data, and any type of information that is received or transmitted through information and communication technologies or through any electronic device”; and conduct wiretaps in either criminal or civil investigations with no mention of restrictions on scope or duration of the surveillance and no oversight. The Inter American Press Association condemned the changes, saying they had “serious implications for freedom of the press,” as they were “official reprisal measures against journalism.”
The state of exception did not formally suspend the legal requirement for police to obtain a warrant before entering a home. As of June 3, however, The Foundation of Studies for the Application of Law reported that of the 170 persons who registered complaints regarding the state of exception with them, 35 percent claimed law enforcement agents entered their homes without a warrant.