EL SALVADOR 2019 HUMAN RIGHTS REPORT
El Salvador is a constitutional multiparty republic. On February 3, voters elected Nayib Bukele as president for a five-year term. The election was generally free and fair, according to international observers. Free and fair municipal and legislative elections took place in 2018.
The National Civilian Police (PNC), overseen by the Ministry of Justice and Public Security, is responsible for maintaining public security, and the Ministry of Defense is responsible for maintaining national security. Although the constitution separates public security and military functions, it allows the president to use the armed forces “in exceptional circumstances” to maintain internal peace and public security “when all other measures have been exhausted.” The military is responsible for securing international borders and conducting joint patrols with the PNC. In 2016 then president Sanchez Ceren renewed the decree authorizing military involvement in police duties, a presidential order in place since 1996. Civilian authorities failed at times to maintain effective control over security forces.
Significant human rights issues included: allegations of unlawful killings of suspected gang members and others by security forces; forced disappearances by military personnel; torture by security forces; arbitrary arrest and detention by the PNC; harsh and life-threatening prison conditions; serious problems with the independence of the judiciary; widespread government corruption; violence against women and girls that was inconsistently addressed by authorities; security force violence against lesbian, gay, bisexual, transgender, and intersex (LGBTI) individuals; and children engaged in the worst forms of child labor.
Impunity persisted despite government steps to dismiss and prosecute abusers in the security forces, executive branch, and justice system.
Organized criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of murder, extortion, kidnapping, human trafficking, intimidation, and other threats and violence directed against police, judicial authorities, the business community, journalists, women, and members of vulnerable populations. In some cases authorities investigated and prosecuted persons accused of committing crimes and human rights abuses.
Section 1. Respect for the Integrity of the Person, Including Freedom from:
A. ARBITRARY DEPRIVATION OF LIFE AND OTHER UNLAWFUL OR POLITICALLY MOTIVATED KILLINGS
There were no reports that the government or its agents committed politically motivated killings. There were reports, however, of security force involvement in extrajudicial killings of suspected gang members. As of August 22, the Office of the Human Rights Ombudsman (PDDH) announced it was investigating 39 complaints of such killings, some by law enforcement, including four in which PNC officers were alleged to have directly participated and one attributed to an alleged extermination group.
On August 27, the PDDH presented a report on purported extrajudicial killings attributed to law enforcement agencies during the period 2014-18. The PDDH analyzed 48 incidents involving the alleged extrajudicial killing of 116 persons. Most victims were male and nearly half were between 18 and 24 years old. Almost all victims were killed by firearms. Separately, the PDDH reported that law enforcement officers were victims of gang-orchestrated attacks.
On September 7, a PNC officer in Soyapango, San Salvador Department, was arrested for shooting and killing a motorist who failed to stop his car when directed by the officer. At the initial hearing, the Eighth Peace Court of San Salvador released the officer from custody pending trial but required him to post $6,000 bail and wear an electronic tracking bracelet.
On September 30, the Attorney General’s Office announced the arrest of 22 members of an alleged extermination group operating in San Miguel and Usulatan Departments that was responsible for more than 50 killings of gang members, their associates, and civilians, as well as numerous other crimes in 2016 and 2017. According to the attorney general, the extermination group consisted of 45 members, including 14 active-duty PNC officers (only 11 of whom were arrested) and four former PNC officers.
On October 16, nine police officers faced retrial before the First Court of Judgment of Santa Tecla for the 2016 murder of three alleged gang members and another person in Villas de Zaragoza, La Libertad Department. The case was pending as of November.
In November 2018 the trial court acquitted five police officers of aggravated homicide charges in the 2015 killing of a man at a farm in San Blas, San Jose Villanueva. This was the second trial of the five officers, whose initial acquittal was reversed on appeal. The Attorney General’s Office appealed the November 2018 acquittal, and as of September 16, the appeal was pending. As of July 2, authorities reported alleged gang members had killed 24 police officers and 12 soldiers.
On June 7, the director of the Institute for Human Rights at the University of Central America (IDHUCA) questioned the nomination of Mauricio Arriaza Chicas to be police director due to his past leadership in the Subdirectorate of Operational Areas, which included the Police Reaction Group (GRP) and the El Salvador Reaction Specialized Forces. The GRP was disbanded in February 2018 following the disappearance of female GRP member Carla Ayala after a GRP party in 2017. GRP officer Juan Josue Castillo Arevalo was accused of killing Ayala. Castillo Arevalo remained at large, and his former supervisor, Julio Cesar Flores Castro, was charged with breach of duty in June 2018 for failing to arrest Castillo Arevalo. On September 10, Flores Castro was acquitted of that charge and released from custody, based in part on his pending promotion in the PNC. The Attorney General’s Office continued prosecution of 14 other defendants, including 12 police officers and two civilians.
There were reports alleging that security and law enforcement officials were involved in unlawful disappearances. Law enforcement agencies had not released data on disappearances since 2017, citing a discrepancy between data collected by the PNC and the Attorney General’s Office. On July 17, the attorney general launched a specialized unit to track disappearance complaints, and the Attorney General’s Office and the PNC created a joint working group to focus on disappearance cases and to ensure data consistency regarding such cases.
On August 27, a think tank, The Salvadoran Foundation for Social and Economic Development, presented a legal and institutional situation report covering the first half of the year, which noted that despite the decrease in homicide rates during that period, those figures may have actually underreported homicides, since reported disappearances during the first half of the year might include additional homicides. Local nongovernmental organization (NGO) PASIONISTAS reported that, as of June, there were 652 disappearances, compared with 2,457 in 2018. The Attorney General’s Office reported 2,234 cases of “deprivation of liberty” through October 22, compared with 2,359 cases through October 22, 2018; however, this offense includes both disappearances and missing persons.
In July La Prensa Grafica newspaper reported it had received reports of 259 disappeared persons, of whom 173 were later found living, 11 were found dead, and 72 cases remained under investigation.
On April 23, the judge in the prosecution of the 1981 El Mozote massacre, in which almost 1,000 civilians were killed, issued an order adding three new charges, including a forced disappearance charge, against the 16 remaining defendants. The defendants appealed that order, which was affirmed by the intermediate appellate court. This was pending a further appeal (see section 1.e. for more information).
In November 2018, after a lengthy trial process, the Sonsonate Court of Judgment convicted six members of the armed forces for the crimes of deprivation of freedom, making false accusations of gang membership, and forced disappearance of three young men in 2014 in Armenia, La Libertad Department.
C. TORTURE AND OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT
The law prohibits such practices, but there were reports of violations. As of August 22, the PDDH had received 33 complaints of torture or cruel or inhuman treatment by the PNC, nine by the armed forces, and seven by other public officials.
Reports of abuse and police misconduct came mostly from residents of metropolitan San Salvador and mainly from men and young persons. As of June the Office of the Police Inspector General reported it had received 775 complaints of general misconduct by police (including but not limited to torture or cruel or inhuman treatment) and taken disciplinary action against 120 police officers accused of misconduct.
On February 6, PNC officers allegedly tortured a juvenile male. According to the Attorney General’s Office, PNC members detained the individual in a police station in Coruna, Soyapango, San Salvador Department, for six days and accused him of receiving stolen property, although the PNC officers had no proof against the suspect. According to the victim, the police officers tortured him and stole $80 from him. As of October 29, three officers were in pretrial detention.
On March 8, six police officers from the Tactic Operative Section allegedly tortured and attempted to kill a young man by setting him on fire after accusing him of being a gang member in a rural neighborhood of Apopa, San Salvador Department. When the victim filed a complaint against the police officers with the Attorney General’s Office in Apopa, the prosecutor allegedly implied the young man’s gang affiliation had provoked the police response. In April, despite this initial hostility to the victim and possible gang affiliation, the Attorney General’s Office arrested and charged the police officers with attempted homicide and placed four of them in pretrial detention. In June the victim reported ongoing harassment against him and his family by other police officers. On September 20, a judge determined that four of the officers would stand trial solely on a torture charge.
On July 12, the Sentence Tribunal of Cojutepeque, Cuscatlan Department, convicted five police officers and four members of the armed forces of deprivation of freedom, sexual abuse, and threatening and torturing a young woman. The court sentenced them to three years in prison and fined each $1,000. The victim had reported the case to the Attorney General’s Office in January 2018.
PRISON AND DETENTION CENTER CONDITIONS
Prison and detention center conditions remained harsh and life threatening due to gross overcrowding, unhygienic conditions, and gang activities.
Physical Conditions: Overcrowding, at 141 percent of capacity as of September, was a serious threat to prisoners’ health and welfare. For example, as of August 22, the PDDH reported that in one prison, 1,654 inmates were held in facilities designed for 600.
Convicted inmates and pretrial detainees were sometimes held in the same prison cells.
Gangs remained prevalent in prisons. As of September 14, approximately 55 percent (18,293 prisoners) of the prison population were active or former gang members. As of August 29, extraordinary measures designed to interrupt gang communications and coordination between imprisoned leaders and gang members outside the prisons were in effect in eight prisons. The measures reduced the smuggling of weapons, drugs, and other contraband such as cell phones and SIM cards into prisons; however, contraband remained a problem, at times with complicity from prison officials.
On June 20, the minister of justice and the director of prisons imposed a state of emergency in 19 prisons at President Bukele’s request and as part of his security program, the Plan for Territorial Control. Under the state of emergency, prisoners were not able to receive any type of visit, were confined to their cells 24 hours a day, were not permitted to visit recreational or medical facilities except in extraordinary circumstances, did not receive mail or have access to radios or televisions, and did not engage in work activities. In addition, beginning on June 21, the minister and the director used their legal authority to completely disable cell phone signals inside and around prisons. The Court of Penitentiary Surveillance and Penalty Execution subsequently ratified the state of emergency. On September 2, President Bukele instructed the minister and the director to lift the state of emergency in prisons. Inmates’ right to receive visitors was gradually restored in prisons that did not hold inmates affiliated with gangs.
In many facilities, provisions for sanitation, potable water, ventilation, temperature control, medical care, and lighting were inadequate, according to the PDDH. As of September 14, the director of prisons reported no cases of inmate malnutrition, down from 2,440 reported cases between August 2017 and May 2018.
According to the Direction of Penitentiaries, 21 inmates died in 2018, nine by homicide. As of August the Salvadoran Institute for Child Development reported no minors had been killed by gang members while in detention, compared with three in 2018.
In August the PNC reported 30 percent overcrowding in police holding cells, with 2,300-2,400 detainees in cells designed for 1,500-1,800 individuals. This was down from 5,500-6,000 detainees held in similar facilities in 2018.
Administration: The PDDH has authority to investigate credible allegations of inhumane conditions. The Constitutional Chamber of the Supreme Court has authority over the protection of constitutional rights. During the state of emergency, authorities did not allow prisoners and detainees to receive any visitors or to gather for religious observances.
Independent Monitoring: As of August 22, according to the PDDH, due to the state of emergency enacted on June 20, the government prevented independent human rights groups from visiting all prisons (not just the 19 covered by the state of emergency). Prior to the imposition of the state of emergency, and again after September 2, the government permitted visits by independent human rights observers, NGOs, and media to low- and medium-security prisons. Inspections of high-security prisons were limited to government officials, the PDDH, and the International Committee of the Red Cross. Church groups, IDHUCA, LGBTI activists, and other groups visited prisons during the first six months of the year.
Improvements: Construction of new prisons and a redistribution of prisoners reduced overcrowding from 215 percent to 141 percent as of September.
On September 12, legislators reallocated $9.3 million from the year’s budget to improve prison conditions, including $4.1 million for a salary increase for prison personnel and $5.2 million for improved food for inmates.
D. ARBITRARY ARREST OR DETENTION
Although the constitution prohibits arbitrary arrest and detention, there were numerous complaints that the PNC and military forces carried out arbitrary arrests. NGOs reported that the PNC arbitrarily arrested and detained individuals on suspicion of gang affiliation. According to these NGOs, the accused were ostracized by their communities upon their return.
The law provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court. The government generally observed this provision.
ARREST PROCEDURES AND TREATMENT OF DETAINEES
The constitution requires a written warrant of arrest except in cases where an individual is caught in the act of committing a crime. Authorities generally apprehended persons with warrants based on evidence and issued by a judge, although this was frequently ignored when allegations of gang membership arose. Police generally informed detainees promptly of charges against them.
The law permits release on bail for detainees who are unlikely to flee or whose release would not impede the investigation of the case. The bail system functioned adequately in most cases. The courts generally enforced a ruling that interrogation without the presence of counsel is coercive and that evidence obtained in such a manner is inadmissible. As a result, PNC authorities typically delayed questioning until a public defender or an attorney arrived. The constitution permits the PNC to hold suspects for 72 hours before presenting them to court. The law allows up to six months for investigation of serious crimes before requiring either a trial or dismissal of the case; this period may be extended by an appeals court. Many cases continued beyond the legally prescribed period.
Arbitrary Arrest: As of August 22, the PDDH reported 66 complaints of arbitrary detention or illegal detention, compared with 31 from January to October 2018. According to the PNC and a report by El Faro, 72 percent of those arrested in the first 15 days of the Bukele administration–969 of the 1,350 individuals arrested during or immediately after an alleged crime–were released within 72 hours and were not formally charged with a criminal offense.
Pretrial Detention: Lengthy pretrial detention was a significant problem. As of August approximately 33 percent of the general prison population was in pretrial detention. Some persons remained in pretrial detention longer than the maximum legal sentences for their alleged crimes. In such circumstances detainees were permitted to request a Supreme Court review of their continued detention.
E. DENIAL OF FAIR PUBLIC TRIAL
Although the constitution provides for an independent judiciary, the government did not always respect judicial independence, and the judiciary was burdened by inefficiency and corruption. For example, when employees of several executive branch agencies targeted for closure in June filed a complaint with the Supreme Judicial Court, President Bukele warned the Supreme Court justices not to interfere with the case.
While the government generally respected court orders, some agencies ignored or minimally complied with orders.
In February, in a renewed effort to shield the perpetrators of war crimes and human rights abuses committed during the country’s 1980-92 civil war, a group of influential legislators proposed a draft national reconciliation law. Despite Constitutional Court rulings in 2016 and 2018 that expressly prohibited a broad and unconditional amnesty, the proposed bill would have granted amnesty to several high-level officials who enjoyed immunity from prosecution due to their positions in the recent administration of President Salvador Sanchez Ceren. Victims’ rights groups, other civil society actors, and the international community successfully campaigned against the proposed bill, and President-elect Bukele stated his strong opposition to an amnesty bill and expressed his support for additional consultation with victims. On May 29, the Inter-American Court of Human Rights ordered the government to immediately suspend consideration of the proposed law. The proposed bill eventually lost support among legislators and failed to reach a floor vote.
Despite a June 2018 Constitutional Court order directing it to release military records related to the El Mozote killings and serious civil war crimes, the Ministry of Defense had not produced the requested documentation as of November 12. On November 1, President Bukele stated that he was committed to the truth and that he would release the records. Previously, the Ministry of Defense claimed the El Mozote archive records were destroyed in an accidental warehouse fire. Civil society and victims’ groups continued to press for release of these archives.
As of August 22, the PDDH received 74 complaints of lack of a fair, public trial.
Corruption in the judicial system contributed to the high level of impunity, undermining the rule of law and the public’s respect for the judiciary. As of August 31, the Supreme Court had heard 110 cases against judges due to irregularities (57 of which remained under review), sanctioned four judges, and brought formal charges against six judges. Accusations against judges included collusion with criminal elements and sexual harassment.
On April 23, the judge in the El Mozote prosecution issued an order adding three new charges against the 16 remaining defendants: Torture, forced disappearance, and forced displacement. He also imposed several provisional measures on the defendants, including a prohibition on leaving the country or contacting victims, and a requirement that the defendants physically appear in court biweekly. The defendants appealed these rulings, which were affirmed by an intermediate appellate court. On February 14, the Legislative Assembly approved a transitory law establishing mechanisms designed to allow family members to be added to the El Mozote victims’ registry.
A number of women charged under the 1998 penal code, which makes it illegal to perform, self-induce, or consent to an abortion under any circumstances, asserted they had suffered miscarriages, stillbirths, and other medical emergencies during childbirth. Legal experts pointed to serious flaws in forensics collection and medical interpretation in many of these cases.
On August 16, Evelyn Hernandez was released from prison after serving two years on charges that she attempted to kill her baby in 2016. The court opined that the evidence presented by the prosecution was insufficient to support the charges, relying heavily on an autopsy of the baby that showed it had died because of swallowing meconium. The prosecutor had requested a 40-year prison sentence. On September 6, the Attorney General’s Office filed an appeal of the order acquitting her.
The law provides for the right to a fair and public trial, and an independent judiciary generally enforced this right, although some trial court judges were subject to political, economic, or other corrupting influences. By law juries hear only a narrow group of cases, such as environmental complaints. After the jury determines innocence or guilt, a panel of judges decides the sentence.
Defendants have the right to be present in court (except in virtual trials; see below), question witnesses, and present witnesses and evidence. The constitution further provides for the presumption of innocence, the right to be informed promptly and in detail of charges, the right to a trial without undue delay (seldom observed), protection from self-incrimination, the right to communicate with an attorney of choice, the right to adequate time and facilities to prepare a defense, freedom from coercion, the right to appeal, and government-provided legal counsel for the indigent.
In criminal cases a judge may allow a private plaintiff to participate in trial proceedings (calling and cross-examining witnesses, providing evidence, etc.), assisting the prosecuting attorney in the trial procedure. Defendants have the right to free assistance of an interpreter. Authorities did not always respect these legal rights and protections. Although a jury’s verdict is final, a judge’s verdict is subject to appeal. Trials are public unless a judge seals a case.
While implemented in 2015 to expedite fair trials, virtual trials still involved delays of up to eight months, according to a July 2018 La Prensa Grafica report. On May 6, the Legislative Assembly passed a reform that allows for, when necessary and appropriate, virtual trials for gang membership charges to proceed without the defendants present, although with defense counsel participating. The reform also states that the judicial and prison authorities must provide a video copy of the virtual trial to the defendants within 72 hours so that they may exercise their right to defense.
Virtual trials often involved group hearings before a judge, with defendants unable to consult with their defense lawyers in real time. The penitentiary code reforms passed in August 2018 allow defense lawyers to attend a hearing without the defendant’s presence. Human rights groups questioned the constitutionality of the reform.
According to 2018 press reports, plea deals occurred in approximately 20 percent of cases, with the accused turning state’s witness in order to prosecute others. Legal experts pointed to an overreliance on witness testimony in nearly all cases, as opposed to the use of forensics or other scientific evidence. The justice system lacked DNA analysis and other forensic capabilities; in July the Howard Buffett foundation announced a $25 million PNC Forensic Research Center project to improve the country’s forensic abilities.
POLITICAL PRISONERS AND DETAINEES
There were no reports of political prisoners or detainees.
CIVIL JUDICIAL PROCEDURES AND REMEDIES
The law provides for access to the courts, enabling litigants to bring civil lawsuits seeking damages for, as well as cessation of, human rights violations. Domestic court orders generally were enforced. Most attorneys pursued criminal prosecution and later requested civil compensation.
F. ARBITRARY OR UNLAWFUL INTERFERENCE WITH PRIVACY, FAMILY, HOME, OR CORRESPONDENCE
The constitution prohibits such actions. In contrast with 2018, there were no reports the state intelligence service tracked journalists or collected information about their private lives.
In many neighborhoods, armed groups and gangs targeted certain persons and interfered with privacy, family, and home life. Efforts by authorities to remedy these situations were generally ineffective.
Section 2. Respect for Civil Liberties, Including:
A. FREEDOM OF EXPRESSION, INCLUDING FOR THE PRESS
The constitution provides for freedom of expression, including for the press, although the government at times did not respect this right. The law permits the executive branch to use the emergency broadcasting service to take over all broadcast and cable networks temporarily to televise political programming.
Press and Media, Including Online Media: Allegations continued that the government retaliated against members of the press for criticizing certain policies. On September 6, President Bukele’s press and communications staff banned journalists of digital newspapers El Faro and Factum Magazine from a press conference in which President Bukele announced the launch of the Salvadoran Commission Against Corruption and Impunity (CICIES). The Bukele administration stated that journalists from both outlets had acted improperly in past press conferences, including shouting questions at speakers and behaving disrespectfully toward staff. On September 11, Factum Magazine journalist Rodrigo Baires was denied entry to a press conference at the same location. The refusals to admit journalists to presidential press conferences drew widespread criticism and concern regarding freedom of expression and freedom of the press, including by the United Nations, Organization of American States (OAS), and Committee to Protect Journalism. Following the criticism, a Factum Magazine reporter was allowed to attend and ask questions at a September 12 presidential press conference.
Violence and Harassment: On July 3, the Salvadoran Journalist Association (APES) reported on the rise of cyber intimidation and attacks against journalists. APES specifically criticized President Bukele for seeking to intimidate journalists Mariana Belloso and Roxana Sandoval. After they criticized the Bukele administration, accounts on social media associated with Bukele supporters targeted Belloso and Sandoval with insults, intimidation, threats, and attempts to discredit their work.
As of August 22, the PDDH had received six complaints of violence against journalists by government officials. APES reported 77 cases of aggressions against journalists during the year, an increase of 18 percent over the 65 cases reported in 2018.
Censorship or Content Restrictions: Government advertising accounted for a significant portion of press advertising income. According to media reports, the Bukele administration cancelled all government advertising in the newspaper El Diario de Hoy after it reported on the banning of journalists from El Faro and Factum Magazine from President Bukele’s press conferences. According to APES, media practiced self-censorship, especially in reporting on gangs and narcotics trafficking.
Nongovernmental Impact: APES noted journalists who reported on gangs and narcotics trafficking were subject to kidnappings, threats, and intimidation. Observers reported that gangs also charged print media companies to distribute in their communities, costing media outlets as much as 20 percent of their revenues.
The government did not restrict or disrupt access to the internet or censor online content, and there were no credible reports that the government monitored private online communications without appropriate legal authority.
ACADEMIC FREEDOM AND CULTURAL EVENTS
There were no government restrictions on academic freedom or cultural events.
B. FREEDOMS OF PEACEFUL ASSEMBLY AND ASSOCIATION
The constitution provides for the freedoms of peaceful assembly and association, and the government generally respected these rights, except with respect to labor unions (see section 7.a.).
C. FREEDOM OF RELIGION
See the Department of State’s International Religious Freedom Report at https://www.state.gov/religiousfreedomreport/.
D. FREEDOM OF MOVEMENT
The constitution provides for freedom of internal movement, foreign travel, emigration, and repatriation. The government generally respected these rights, although in many areas the government could not guarantee freedom of movement due to criminal gang activity.
In-country Movement: The major gangs (MS-13 and two factions of 18th Street) controlled their own territory. Gang members did not allow persons living in another gang’s area to enter their territory, even when travelling via public transportation. Gangs forced persons to present government-issued identification cards (containing their addresses) to determine their residence. If gang members discovered that a person lived in a rival gang’s territory, that person risked being killed, beaten, or not allowed to enter the territory. Bus companies paid extortion fees to operate within gang territories, often paying numerous fees for the different areas in which they operated. The extortion costs were passed on to customers.
As of October 22, the Attorney General’s Office had filed 1,515 new cases charging an illegal limitation on the freedom of movement, an increase from the 920 new cases brought in the same period 2018. The Attorney General’s Office reported 50 convictions for such charges through October 22, compared with 13 through October 22, 2018.
E. INTERNALLY DISPLACED PERSONS
As of August the PDDH reported 148 complaints of forced displacement, 28 of which arose from the same incident. Nearly all of the complaints were from gang-controlled territories, with 84 cases from San Salvador, although in three cases, the complaint alleged the PNC caused the displacement. As of October 2018, the government acknowledged that 1.1 percent of the general population (approximately 68,060 persons) was internally displaced. The Office of the UN High Commissioner for Refugees estimated there were 71,500 internally displaced persons (IDPs) and reported the causes of internal displacement included abuse, extortion, discrimination, and threats.
As of October 24, the Legislative Assembly had failed to pass court-ordered legislation addressing internal displacement by no later than January 2019. In July 2018 the Constitutional Chamber of the Supreme Court ruled that the government violated the constitution by not recognizing forced displacement or providing sufficient aid to IDPs. The court also called on the government to retake control of gang territories, develop protection protocols for victims, and uphold international standards for protecting victims.
F. PROTECTION OF REFUGEES
Access to Asylum: The law provides for granting asylum or refugee status, including an established system for providing protection to refugees. Between January 1 and August 15, the Ministry of Foreign Affairs received 10 asylum petitions, compared with 31 refugee/asylum claims in 2018.
G. STATELESS PERSONS
Section 3. Freedom to Participate in the Political Process
ELECTIONS AND POLITICAL PARTICIPATION
Recent Elections: The most recent presidential election occurred on February 3. Nayib Bukele, of the center-right Grand Alliance for National Unity (GANA) party, was elected to a five-year term. The election reports published by the OAS and the EU electoral mission noted the election generally met international standards.
While the law prohibits public officials from campaigning in elections, the provision lacked consistent enforcement.
Participation of Women and Minorities: No laws limit participation of women or members of minorities in the political process, and they did participate.
Section 4. Corruption and Lack of Transparency in Government
Corruption: In January the Supreme Court issued an order limiting its Probity Section investigations of public officials to those who had left public office within the last 10 years. On May 6, Factum Magazine published an article underlining that, due to this decision, 79 cases were due to expire on May 31. According to Factum, in four of these, the Probity Section had already completed the investigation, and it required only a decision from the Supreme Court. The four investigations involved former Farabundo Marti National Liberation Front (FMLN) legislator Sigfrido Reyes; GANA legislator Guillermo Gallegos (regarding actions taken in 2006-09); former vice president Oscar Ortiz, when he served as FMLN legislator in 1994 and 1997; and also of Ortiz when he served as Santa Tecla mayor in 2006 and 2009. As of June 30, the Supreme Court’s Probity Section had opened six illicit enrichment cases against public officers.
On June 20, the Attorney General’s Office filed a corruption complaint against Rafael Hernan Contreras, former chief of the Court of Accounts, one of the six agencies that oversees corruption investigations and cases. According to the attorney general, Contreras issued a false document that certified former president Antonio Saca, serving 10 years in prison for misappropriating more than $300 million, had managed funds effectively during his presidency. Saca still faced charges for bribing a judicial official for access to information. Six other officials from the Saca administration also received prison sentences in September 2018 for misappropriating public funds while in government.
In December 2018 a judge sentenced former attorney general Luis Martinez (2012-15) to five years in prison and ordered him to pay $125,000 in restitution on corruption-related charges of purposely and unlawfully disclosing recordings obtained in a wiretap investigation. In 2016 Martinez was fined $8,000 by the Government Ethics Tribunal for inappropriately accepting gifts from businessman Enrique Rais. Martinez faced a number of pending corruption charges, including allegations he took bribes from former president Mauricio Funes, who received citizenship from Nicaragua in July after fleeing corruption charges in El Salvador.
The Attorney General’s Office reportedly investigated past misuse of a presidential discretionary fund, established in 1989 and used by six presidents, to fund the national intelligence service. The fund, totaling one billion dollars since the accounts’ inception, had never been audited by the Court of Accounts. Former presidents Saca and Funes allegedly misappropriated more than $650 million from this fund during their terms in office.
As of September 16, the Ethics Tribunal reported that between September 2018 and August 21, it had opened 438 administrative proceedings against 426 public officials. During that same period, the tribunal imposed fines against 41 sitting and former public officials. As of September 3, the Attorney General’s Office had filed claims against three judges for committing crimes involving corruption or for violating public administration laws.
Financial Disclosure: The illicit enrichment law requires appointed and elected officials to declare their assets to the Probity Section of the Supreme Court. The law establishes fines for noncompliance that range from $11 to $571. The declarations were not available to the public unless requested by petition. The Supreme Court established three criteria for selecting investigable cases: the age of the case (that is, proximity to the statute of limitations); relevance of the official’s position; and seriousness and notoriety of the alleged illicit enrichment.
The law requires public officers to present asset certification reports no later than 60 days after taking a new position. In August the Supreme Court Probity Section reported that 8,974 public officers had failed to present their assets certifications in the 10 previous years. This included 16 legislators who took office in May 2018 and who had failed to present their assets reports by June 30, 2019.
Section 5. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights
The PDDH maintained a constructive dialogue with the Office of the President. The government publicly acknowledged receipt of reports, although in some cases it did not act on recommendations, which are nonbinding. The PDDH faced threats, including two robberies at its headquarters targeting computers containing personally identifiable information.
On October 16, the Legislative Assembly nominated a new PDDH ombudsman who was facing three criminal cases for “fraud, bribery, and arbitrary acts,” as well as a Court of Accounts case from his time as a civil court judge. International organizations, NGOs, several legislators, the San Salvador mayor, and President Bukele criticized the nomination.
Section 6. Discrimination, Societal Abuses, and Trafficking in Persons
Rape and Domestic Violence: The law criminalizes rape of men or women, and the criminal code’s definition of rape may apply to spousal rape, at the judge’s discretion. The law requires the Attorney General’s Office to prosecute rape cases whether or not the victim presses charges, and the law does not permit the victim to withdraw the criminal charge. The penalty for rape is generally imprisonment for six to 10 years. Laws against rape were not effectively enforced.
The law prohibits domestic violence and generally provides for sentences ranging from one to three years in prison, although some forms of domestic violence carry higher penalties. The law also permits restraining orders against offenders. Laws against domestic violence remained poorly enforced, and violence against women, including domestic violence, remained a widespread and serious problem. In July 2018 the Salvadoran Organization of Women for Peace (ORMUSA) reported that in 2016 and 2017, only 5 percent of the 6,326 reported crimes against women went to trial.
On April 24, a woman died in Guazapa after being beaten by her husband days earlier. The Attorney General’s Office charged her husband with femicide. According to the woman’s children, her husband had been previously deported from the United States after being implicated in a similar case of violence against women.
Sexual Harassment: The law prohibits sexual harassment and establishes sentences of five to eight years’ imprisonment. Courts may impose fines in addition in cases in which the perpetrator held a position of trust or authority over the victim. The law mandates that employers take measures against sexual harassment and create and implement preventive programs. The government, however, did not enforce sexual harassment laws effectively.
On April 4, following an abbreviated trial, the Third Sentence Tribunal of San Salvador sentenced a PNC chief inspector to three years in prison following his conviction for sexual assault, sexual harassment, and threats of violence against three female subordinates.
Coercion in Population Control: There were no reports of coerced abortion or involuntary sterilization.
Discrimination: The constitution grants women and men the same legal rights, but women did not receive equal pay or employment opportunities. The law establishes sentences of one to three years in prison for public officials who deny a person’s civil rights based on gender and six months to two years for employers who discriminate against women in the workplace, but employees generally did not report such violations due to fear of employer reprisals.
Birth Registration: Children derive citizenship by birth within the country and from their parents. The law requires parents to register a child within 15 days of birth or pay a $2.85 fine. Failure to register can result in denial of school enrollment.
Child Abuse: Child abuse remained a serious and widespread problem. The law gives children the right to petition the government without parental consent. Penalties for breaking the law include losing custody of the child and three to 26 years’ imprisonment, depending on the nature of the abuse. As of August the PNC had received 2,081 child abuse complaints.
On February 19, Judge Jaime Escalante was charged with the crime of sexual aggression against a 10-year-old female child. On March 4, the Legislative Assembly voted to remove his immunity from criminal prosecution. On October 31, the Criminal Chamber determined that Escalante’s actions did not constitute a felony but rather a misdemeanor, because the encounter happened quickly and in a crowded place. The attorney general appealed the decision and asked the Criminal Chamber to overturn the ruling, admit all evidence, and send Escalante to trial.
According to a 2016 National Health Survey, more than half of households punished their children physically and psychologically.
Early and Forced Marriage: The legal minimum age for marriage is 18. The law bans child marriage to prevent child abusers from using legal technicalities to avoid imprisonment by marrying their underage victims. The law allows for marriage of a minor in cases of pregnancy.
Sexual Exploitation of Children: Child sex trafficking is prohibited by law. Prison sentences for convicted traffickers stipulate imprisonment from six to 10 years.
The minimum age for consensual sex is 18. The law classifies statutory rape as sexual relations with anyone younger than 18 and includes penalties of four to 13 years’ imprisonment for violations.
The law prohibits paying anyone younger than 18 for sexual services. The law prohibits participating in, facilitating, or purchasing materials containing child pornography and provides for prison sentences of up to 16 years for violations. Despite these provisions, sexual exploitation of children remained a problem.
International Child Abductions: The country is a party to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. See the Department of State’s Annual Report on International Parental Child Abduction at https://travel.state.gov/content/travel/en/International-Parental-Child-Abduction/for-providers/legal-reports-and-data/reported-cases.html.
The Jewish community totaled approximately 150 persons. There were no reports of anti-Semitic acts.
TRAFFICKING IN PERSONS
See the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.
PERSONS WITH DISABILITIES
The law prohibits discrimination against persons with physical, sensory, intellectual, and mental disabilities. The National Council for Comprehensive Attention to Persons with Disability (CONAIPD), composed of representatives from multiple government entities, is the governmental agency responsible for protecting disability rights, but it lacks enforcement power. According to CONAIPD, the government did not effectively enforce legal requirements for access to buildings, information, and communications for persons with disabilities. Few access ramps or provisions for the mobility of persons with disabilities existed.
According to CONAIPD, there is no mechanism to verify compliance with the law requiring businesses and nongovernment agencies to hire one person with disabilities for every 25 hires. CONAIPD reported employers frequently fired persons who acquired disabilities and would not consider persons with disabilities for work for which they qualified. Further, some academic institutions would not accept children with disabilities.
No formal system existed for filing a discrimination complaint involving a disability with the government.
Indigenous communities reported they faced racial discrimination and economic disadvantage. According to community leaders, gangs pushed out of urban centers by police mounted incursions into and appropriated indigenous land. They also reported gang members threatened their children for crossing gang territorial lines artificially drawn across ancestral indigenous land, forcing some children to drop out of school or leave home.
According to the 2007 census (the most recent), there were 60 indigenous groups, making up 0.4 percent of citizens, mainly from the Nahua-Pipl, Lencas, Cacaopera (Kakwira), and Maya Chorti groups. A 2014 constitutional amendment recognizes the rights of indigenous peoples to maintain their cultural and ethnic identity. The law, however, does not include the right to be consulted regarding development and other projects envisioned on indigenous land, nor does it provide indigenous peoples rights to share in revenue from exploitation of natural resources on historically indigenous lands. The government did not demarcate any lands as belonging to indigenous communities. Because few indigenous individuals possessed title to land, opportunities for bank loans and other forms of credit remained limited.
The law provides for the preservation of languages and archeological sites. During the year the municipalities of Cacaopera and Yucuaiquin, in the eastern part of the country, approved special laws to recognize their indigenous cultural heritage.
ACTS OF VIOLENCE, DISCRIMINATION, AND OTHER SOCIETAL ABUSES BASED ON SEXUAL ORIENTATION AND GENDER IDENTITY
The law prohibits discrimination based on sexual orientation or gender identity, which also applies to discrimination in housing, employment, nationality, and access to government services. Gender identity and sexual orientation are included in the criminal code provisions covering hate crimes, along with race and political affiliation. NGOs reported that public officials, including police, engaged in violence and discrimination against sexual minorities. Persons from the LGBTI community stated that the PNC and the Attorney General’s Office harassed transgender and gay individuals when they reported cases of violence against LGBTI persons, including by conducting unnecessary and invasive strip searches.
On January 31, a transsexual woman, Camila Diaz Cordova, identified in her national identification card as Nelson Arquimides Diaz Cordova, was allegedly killed by three police officers with the National Civil Police’s 911 System in San Salvador. In July, at an initial hearing in the Fifth Peace Court, the Prosecutor’s Office accused the officers of committing a “hate crime.”
As of August 22, the PDDH reported four accusations by the LGBTI community of homicides, one complaint of torture, four complaints of violations to human integrity, one complaint each of physical abuse and harassment. The PDDH was unable to determine whether the incidents were bias motivated. Activists also reported receiving death threats on social media. Police generally failed to act on these reports. The PDDH reported it was processing a case against security personnel at a prison in Sensuntepeque, Cabanas Department, for deprivation of liberty and inhuman treatment of transsexual prisoners based on their sexual orientation and gender identity.
Media reported killings of LGBTI community members in October and November. On October 27, Anahy Rivas, a 27-year-old transwoman, was killed after being assaulted and dragged behind a car. Jade Diaz, a transwoman who disappeared on November 6, was assaulted prior to her killing. Her body was found submerged in a river. On November 16, Manuel Pineda, known as Victoria, was beaten to death and her body left naked in the street in Francisco Menendez, Ahuachapan Department. Uncensored photographs of the body were circulated on social media.
In 2017 the Supreme Electoral Tribunal announced guidelines stating individuals cannot be denied the right to vote because the photograph on their identification card does not match their physical appearance. Nonetheless, media documented cases of transgender persons who faced harassment while voting in the presidential elections because their name and photograph on their national identification did not match their expression of gender identity.
HIV AND AIDS SOCIAL STIGMA
Although the law prohibits discrimination on the basis of HIV/AIDS status, Entre Amigos, an LGBTI NGO, reported HIV-related discrimination was widespread. As of August 31, the PDDH reported one alleged case of discrimination against persons with HIV or AIDS that purportedly took place at a public health union in La Union Department.
Section 7. Worker Rights
A. FREEDOM OF ASSOCIATION AND THE RIGHT TO COLLECTIVE BARGAINING
The law provides for the right of most workers to form and join independent unions, to strike, and to bargain collectively. The law also prohibits antiunion discrimination, although it does not require reinstatement of workers fired for union activity. Military personnel, national police, judges, and high-level public officers may not form or join unions. Workers who are representatives of the employer or in “positions of trust” also may not serve on a union’s board of directors. The law does not define the term “positions of trust.” The labor code does not cover public-sector workers and municipal workers, whose wages and terms of employment are regulated by the 1961 civil service law. Only citizens may serve on unions’ executive committees. The labor code also bars individuals from holding membership in more than one trade union.
Unions must meet complex requirements to register, including having a minimum membership of 35 individuals. If the Ministry of Labor denies registration, the law prohibits any attempt to organize for up to six months following the denial. Collective bargaining is obligatory only if the union represents the majority of workers.
The law contains cumbersome and complex procedures for conducting a legal strike. The law does not recognize the right to strike for public and municipal employees or for workers in essential services. The law does not specify which services meet this definition, and courts therefore apply this provision on a case-by-case basis. The law requires that 30 percent of all workers in an enterprise must support a strike for it to be legal and that 51 percent must support the strike before all workers are bound by the decision to strike. Unions may strike only to obtain or modify a collective bargaining agreement or to protect the common professional interests of the workers. They must also engage in negotiation, mediation, and arbitration processes before striking, although many unions often skipped or expedited these steps. The law prohibits workers from appealing a government decision declaring a strike illegal.
In lieu of requiring employers to reinstate illegally dismissed workers, the law requires employers to pay the workers the equivalent of 30 days of their basic salary for each year of service. The law specifies 30 reasons for which an employer can terminate a worker’s contract without triggering any additional responsibilities, including consistent negligence, leaking private company information, or committing immoral acts while on duty. An employer may also legally suspend workers, including for reasons of economic downturn or market conditions. According to the Ministry of Labor, through September 30, 7,495 persons had filed complaints of dismissal without justification. In addition, the Ministry of Labor reported that from January 1 through June, it received 15 complaints of failure to pay wages owed, one complaint of an employer’s improper retention of social security contributions, and eight complaints of a failure to pay overtime.
The government did not effectively enforce the laws on freedom of association and the right to collective bargaining. Penalties remained insufficient to deter violations. Judicial procedures were subject to lengthy delays and appeals. According to union representatives, the government inconsistently enforced labor rights for public workers, maquiladora/textile workers, food manufacturing workers, subcontracted workers in the construction industry, security guards, informal-sector workers, and migrant workers. Between January 1 and June 3, the ministry received 36 claims of violations for labor discrimination.
As of August 15, the inspector general of the Ministry of Labor had reported 124 alleged violations of the right of freedom of association, including 72 such violations against members of labor unions and 39 resulting complaints of discrimination.
Unions functioned independently from the government and political parties, although many generally were aligned with the traditional political parties of ARENA and the FMLN. Workers at times engaged in strikes regardless of whether the strikes met legal requirements. On June 10, the International Labor Organization Conference Committee on the Application of Standards discussed, for the fifth consecutive year, the nonfunctioning of the country’s tripartite Higher Labor Council. In September the Ministry of Labor reactivated the council.
B. PROHIBITION OF FORCED OR COMPULSORY LABOR
The law prohibits all forms of forced or compulsory labor. The government generally did not effectively enforce such laws. Penalties were not sufficient to deter violations. The lack of sufficient resources for inspectors reduced their ability to enforce the law fully. The Ministry of Labor did not report on incidents of forced labor. Gangs subjected children to forced labor in illicit activities, including selling or transporting drugs (see section 7.c.).
Also see the Department of State’s Trafficking in Persons Report at https://www.state.gov/trafficking-in-persons-report/.
C. PROHIBITION OF CHILD LABOR AND MINIMUM AGE FOR EMPLOYMENT
The law prohibits the employment of children younger than 14 but does not prohibit all of the worst forms of child labor. The law allows children between the ages of 14 and 18 to engage in light work if it does not damage the child’s health or development or interfere with compulsory education. The law prohibits children younger than 16 from working more than six hours per day and 34 hours per week; those younger than 18 are prohibited from working at night or in occupations considered hazardous. The Ministry of Labor maintained a list of types of work considered hazardous, which included repairing heavy machinery, mining, handling weapons, fishing and harvesting mollusks, and working at heights above five feet while doing construction, erecting antennas, or working on billboards. Children age 16 and older may engage in light work on coffee and sugar plantations and in the fishing industry so long as it does not harm their health or interfere with their education.
Child labor remained a serious and widespread problem. According to the Ministry of Labor, the percentage of children and adolescents between the ages of five and 17 who were working decreased from 8.4 percent in 2017 to 6.8 percent in 2018.
The Ministry of Labor is responsible for enforcing child labor laws but did not effectively enforce the law. Penalties for violations of child labor laws were insufficient to act as a deterrent in the informal sector. Labor inspectors focused almost exclusively on the formal sector. According to the ministry, from January through August, officials conducted 669 child labor inspections in the formal sector that discovered 10 minors working, all of whom were authorized to work. By comparison, as of September 2017, according to the ministry, there were 140,700 children and adolescents working, of whom 91,257 were employed in “dangerous work” in the informal sector. No information on any investigations or prosecutions by the government was available. The ministry did not effectively enforce child labor laws in the informal sector, which represented almost 75 percent of the economy.
There were reports of children younger than 16 engaging in the worst forms of child labor, including in coffee cultivation, fishing, shellfish collection, and fireworks production. Children were subjected to other worst forms of child labor, including commercial sexual exploitation (see section 6, Children) and recruitment into illegal gangs to perform illicit activities in the arms and narcotics trades, including committing homicide. Children were engaged in child labor, including domestic work, the production of cereal grains and baked goods, cattle raising, and sales. Orphans and children from poor families frequently worked as street vendors and general laborers in small businesses despite the presence of law enforcement officials.
Also see the Department of Labor’s Findings on the Worst Forms of Child Labor at https://www.dol.gov/agencies/ilab/resources/reports/child-labor/findings.
D. DISCRIMINATION WITH RESPECT TO EMPLOYMENT AND OCCUPATION
The constitution, labor laws, and state regulations prohibit discrimination on the basis of race, color, sex, religion, political opinion, national origin (except in cases determined to protect local workers), social origin, gender, disability, language, or HIV-positive status. The government did not effectively enforce those laws and regulations. Penalties were insufficient to deter violations. Sexual orientation and gender identity are not included in the constitution or labor law, although the PDDH and the Ministry of Labor actively sought to protect workers against discrimination on those grounds.
Discrimination in employment and occupation occurred with respect to gender, disability, and sexual orientation or gender identity (see sections 6 and 7.e.). According to the Ministry of Labor, migrant workers have the same rights as citizens, but the ministry did not enforce them.
As of June the Ministry of Labor had received one complaint of disability discrimination and six complaints of gender-based discrimination. In August the Legislative Assembly approved an “equal job, equal pay” reform to the labor code that provides for equal pay for women and persons with disabilities who perform the same duties as others. The law, reformed in 2018, prohibits the dismissal of women returning from maternity leave for up to six months.
On February 14, the Legislative Assembly reformed the labor code in order to grant employment stability to persons suffering from chronic diseases that require frequent medical checks and rehabilitation. The reform applies to women who are pregnant and ensures job security during pregnancy. The guarantee of job stability starts from the issuance of the corresponding medical diagnosis and is extended for three months after the respective medical treatment has ended, except for the causes established in Article 50 of the labor code, which include serious immoral acts, breaches of confidentiality and recurring negligence.
E. ACCEPTABLE CONDITIONS OF WORK
There is no national minimum wage; the minimum wage is determined by sector. In 2018 a minimum wage increase went into effect that included increases of nearly 40 percent for apparel assembly workers and more than 100 percent for workers in coffee and sugar harvesting. All of these wage rates were above poverty income levels. The government proved more effective in enforcing the minimum wage law in the formal sector than in the informal sector. As of June the Ministry of Labor had registered three complaints of noncompliance with the minimum wage.
The law sets a maximum normal workweek of 44 hours, limited to no more than six days and to no more than eight hours per day, but allows overtime, which is to be paid at a rate of double the usual hourly wage. The law mandates that full-time employees receive pay for an eight-hour day of rest in addition to the 44-hour normal workweek. The law provides that employers must pay double time for work on designated annual holidays, a Christmas bonus based on the time of service of the employee, and 15 days of paid annual leave. The law prohibits compulsory overtime. The law states that domestic employees, such as maids and gardeners, are obligated to work on holidays if their employer makes this request, but they are entitled to double pay in these instances. The government did not adequately enforce these laws.
The Ministry of Labor is responsible for setting and enforcing workplace safety standards, and the law establishes a tripartite committee to review the standards. The law requires employers to take steps to meet health and safety requirements in the workplace, including providing proper equipment and training and a violence-free environment. Employers who violate most labor laws could be penalized, but penalties were not sufficient to deter violations; some companies reportedly found it more cost effective to pay the fines than to comply with the law. The law promotes occupational safety awareness, training, and worker participation in occupational health and safety matters. While the laws were appropriate for the main industries, the government did not effectively enforce them.
Unions reported the ministry failed to enforce the law for subcontracted workers hired for public reconstruction contracts. The government provided its inspectors updated training in both occupational safety and labor standards. As of June the ministry conducted 13,315 inspections, in addition to 3,857 inspections to follow up with prior investigations, and had levied $777,000 in fines against businesses.
The number of inspectors was insufficient to deter violations and allegations of corruption among labor inspectors continued. The Labor Ministry received complaints regarding failure to pay overtime, minimum wage violations, unpaid salaries, and cases of employers illegally withholding benefits (including social security and pension funds) from workers.
Reports of overtime and wage violations existed in several sectors. According to the Labor Ministry, employers in the agricultural sector did not generally grant annual bonuses, vacation days, or days of rest. Women in domestic service and the industrial manufacturing for export industry, particularly in the export-processing zones, faced exploitation, mistreatment, verbal abuse, threats, sexual harassment, and generally poor work conditions. Workers in the construction industry and domestic service reportedly experienced violations of wage, hour, and safety laws. According to ORMUSA, apparel companies violated women’s rights through occupational health violations and unpaid overtime. There were reports of occupational safety and health violations in other sectors, including reports that a very large percentage of buildings did not meet safety standards set by the General Law on Risk Protection. The government proved ineffective in pursuing such violations.
In some cases the country’s high crime rate undermined acceptable conditions of work as well as workers’ psychological and physical health. Some workers, such as bus drivers, bill collectors, messengers, and teachers in high-risk areas, reported being subject to extortion and death threats by gang members.
Through September 30, the Ministry of Labor reported 6,771 workplace accidents. These included 3,069 accidents in the services sector, 2,090 in the industrial sector, 785 in the commercial sector, 605 in the public sector, and 222 in the agricultural sector. The ministry did not report any deaths from workplace accidents.
Workers may legally remove themselves from situations that endanger health or safety without jeopardy to their employment, but authorities lacked the ability to protect employees in this situation effectively.