The El Salvadorian Procuraduría de los Derechos Humanos and Torture Prevention

El Salvador ratified the CAT in June 1996 but is yet to ratify the OPCAT.[1]  El Salvador emerged from an extremely violent decade-long civil war in 1992 under the auspices of the UN. The peace process was officially concluded in 1995. However, the legacy of massive and systematic human rights violations continues to inform El Salvadorian rights politics and the work of its NHRI, the Procuraduría para la Defensa de los Derechos Humanos (PDDH).

The PDDH has conducted a sustained lobbying campaign on ratification of the OPCAT.  In November 2009, the Procurador submitted a shadow report to the Committee against Torture. The CAT in its final observations “invited” the El Salvadorian government to ratify the OPCAT. The El Salvadorian government voluntarily committed to signing the OPCAT during its UPR in March 2011, following concerted action on the part of NGOs and the PDDH. However, the government has reneged on this commitment. The PDDH has denounced this in the media as “a denial of the right to international justice.”

The El Salvadorian government has a record of ratifying diverse human rights treaties while opting out of any supervision apparatus. For instance, El Salvador has ratified the CAT. However, the PDDH has noted that the CAT was ratified alongside significant reservations restricting its application and the jurisdiction of the Committee against Torture. The PDDH also has exercised a legislative review mandate, successfully lobbying for the redefinition of torture in line with international standards, as well as for an increase in the minimum penalty for violators. The Procurador continues to strongly advocate domestic reform in line with the Interamerican Convention to Prevent and Punish Torture.

The PDDH was created as part of the UN-sponsored peace agreement in El Salvador in January 1992.  The El Salvadorian model emerged from this international process as one of the most powerful, if not independent, formal models in the region. It has constitutional standing, is elected by Congress and budgetary safeguards. However, independence is constrained by its direct subordination to the Public Prosecutor’s Office and a term limit of three years. It also enjoys a broad human rights mandate, far-reaching powers of investigation and can act ex officio or on receipt of a complaint. Reflecting its origins, the PDDH is one of only six NHRIs in Latin America with an explicit mandate to promote international human rights law.

Specific to torture prevention, the PDDH has a mandate to supervise the situation of those in places of deprivation of liberty, detention and custody and to inspect all detention facilities without prior notification, including military installations. More unusual, the PDDH law directs the institution to ensure due process and to maintain a register of detainees and centres of detention. That said, legislation should explicitly authorise the designated NPM to have oversight over all places of deprivation of liberty, detention and custody.

The PDDH came to prominence in the mid-1990s as a forceful and independent human rights advocate. Legislators critically undermined the office in 1998 with a highly unsuitable appointment as Procurador. Expelled from office two years later, the Procurador’s prestige had been tarnished, but not irreparably.

The PDDH is today a highly credible NHRI, displaying some of the highest public approval ratings in the region.  The institution has maintained good relations with civil society since its inception. Under the present incumbent, Óscar Humberto Luna, productive relations have been further strengthened.  The PDDH is often a lone official voice of defence for civil society activists subject to severe penalties for “public disorder” offences. Reflecting a relationship of mutual support, the Procurador has proposed that any NPM must incorporate significant opportunities for civil society participation and academic collaboration.

The PDDH confronts a particularly dangerous operational context, defined by some of the worst firearm murder rates in the world and little public confidence in public authorities, especially the police.  The Procurador is also subject to intimidation and death threats.  Public policy favouring a “mano duro” approach to the problem of the “Maras” (gang activity) has contributed to high levels of police brutality. Complaints against the police constitute 54% of the total received by the PDDH in 2011.

The PDDH has assumed the difficult task of monitoring the conduct of the police and armed services. Alleged crimes of torture committed by police and military personnel have been reported to the PDDH and publicised in the media.  Data on complaints of torture received has been released by the institution. In 2010, 60 complaints of torture, cruel, inhuman or degrading treatment were received, with 46 of these levelled at the National Civil Police.

The PDDH has also conducted investigations into alleged crimes of torture as well as produced special reports on particularly egregious cases. In 2005 it released a report on the assassination of the leader of the International Brotherhood of Teamsters condemning the state for failing to investigate the crime effectively as well as the use of illegal methods of interrogation by the police against suspects. Another high profile case was the PDDH report into the gross mistreatment by police officials of detainees following social protest in the municipality of Suchitoto.

The PDDH characterises the prison system as one of the most difficult arenas to supervise. The office has a department dedicated to monitoring the prison system as well as local representations throughout the country. The PDDH notes that prisons in El Salvador are often under the effective control of organised groups of detainees who contribute to a precarious and threatening culture within the penitentiary system.  The scale of over population in El Salvador is extreme even by Latin American standards.[2

The PDDH highlights crimes of torture in the media and exhorts the police and Prosecutor’s Office to fulfil their obligation to investigate and sanction those responsible.  However, the office lacks powers to oblige cooperation on the part of authorities and has acknowledged that this is a significant limitation on effective monitoring. In particular, the Institute of Legal Medicine and the Prosecutor General’s office have been unwilling to share information on cases involving torture.

As noted above, the El Salvadorian PDDH has attempted to pressure the state through international channels, including the submission of reports to the CAT and the UPR. The Procurador has been one of the forceful speakers within UN forums on enhancing the ability of NHRIs to translate international advocacy into results at the domestic level.  In its shadow report to the UN Committee against Torture in 2009, the PDDH highlighted in particular the issue impunity and the frequent inaction on the part of the authorities in cases of alleged torture.  In such a context, the Procuraduría’s efforts to train public officials, including police, prosecutors, judges and prison personnel on torture prevention may be undermined.

The PDDH is formally well-equipped to undertake the role of NPM under the OPCAT. However, it must be contend with official resistance at the highest levels to ratification of the Protocol and, indeed, general pushback to its attempts to monitor crimes of torture and hold those responsible to account. The El Salvadorian office, while highly credible, confronts one of the most challenging torture prevention contexts in the region.

[1] Much of this country file is based on the paper “Prevención – Acceso a la Información y el Control del Estado” presented by Dr. Óscar Humberto Luna, Procurador Para La Defensa De Los Derechos Humanos, at the Workshop “National Human Rights Institutions (NHRIs) and Implementation of UPR Recommendations Relating to Torture Prevention,” 13-14 December 2011, University of Palermo, Buenos Aires, Argentina. Hereafter “Workshop Paper 2011.” presented at the December 2011 workshop.

[2] According to PDDH data, in 2011 there was over-population rate of approximately 300%. Workshop Paper 2011, p. 4.