Under El Salvador’s Constitution, the government can invoke a “state of exception” — which temporarily suspends basic rights, including free speech and protest rights — under extreme circumstances, ranging from war to serious disturbances of public order.
El Salvador’s congress, the Legislative Assembly, also has the power to suspend rights related to defense and freedom of movement.
The State of Exception: March-April 2022
Following the increase in murders that claimed the lives of more than 80 people in one weekend, El Salvador’s government imposed a state of exception for an initial 30 days. This time period saw a huge increase in arrests and detentions for those accused of alleged links to criminal gangs. On April 24, the Legislative Assembly extended the state of exception for another month.
Under the state of exception, the following constitutional rights and guarantees are suspended:
- Freedom of association (Art. 7).
- The right to be informed of the reasons behind detention (Art. 12, paragraph 2).
- Defendants may be compelled to testify, and lose their right to defense (Art. 12, paragraph 2).
- Suspension of the previous guarantees that put a limit on how long someone may be detained (Art, 13 inc. 2).
- Privacy protections around communications and correspondence (Art. 24).
Under a state of emergency, the government can do the following:
- Suspend freedom of assembly and association.
- Suspend a detained person’s right to be informed of the reasons for their detention, as well as the right to defense and due process guarantees.
- Police can detain people without a court order, and without the person being caught in the act of committing a crime.
- Extend the maximum time period for detention. (The decree doesn’t specify what is the new time limit. It was subsequently reported that the limit increased from 72 hours to 15 days).
- Intercept communications without a court order. (Authorities can tap private communications without a warrant).
- The state of exception also amends the penal code and the national gang law in the following ways:
- Increase the penalties for illicit association in gangs from 20 to 40 years in prison; gang leaders can receive a maximum sentence of 40 to 45 years.
- Because the reform is so vague, any information related to gangs, their activities, and their victims would be criminalized. This reform is a gag that affects freedom of speech and press work in the country.
- Establishes a new crime of “belonging to an illicit group,” children from 12 to 16 years old would be affected and could face up to 10 years in prison. Youths between 16 to 18 years old would face a maximum time of 20 years.
- Prohibition of graffiti alluding to gangs and seizure of gang property and weapons.
- The state is authorized to disregard laws on public purchases — which are exempt from taxes —during the state of exception.
- As of April 24, Minister of Justice and Security Gustavo Villatoro reported that 16,500 people had been arrested. Most of the detentions are taking place in working-class areas.
- During the first month of the state of exception, four people died while in detention: three of them after being beaten inside a prison and another because he did not receive adequate medical attention for a medical condition.