The four conventions that the Secretary General of the Organization of American States (OAS) has signed with the government of El Salvador contradict claims, like that of president Nayib Bukele, that the International Commission against Impunity in El Salvador (CICIES) will be able to investigate corruption cases. Rather, the office will have access to violations committed by the ministries and offices of the executive branch, but will only be able to notify the attorney general’s office and offer counsel, when requested, to Salvadoran institutions.
That’s to say, the commission promised by the Bukele administration does not exist, and is still far from materializing. For now, the organization will gather information on violations detected in the executive branch in order to present cases to the attorney general’s office. During the previous two administrations, the Secretariat of Transparency had carried out a similar function, but was closed by Bukele in the first week of his term.
The difference between the prior entity and CICIES is that the prior depended directly on, and received its information from, the executive. CICIES, on the other hand, collaborates—if requested—with the attorney general's office, judicial branch, and Court of Accounts. It then faces the challenge of soliciting information, just as any citizen would, from the legislative branch or local governments through the Access to Information Law. It does not specify, though, what it will do next with the information it gathers.
While CICIES defends its autonomy by nature of its being an international entity promoted by the OAS, at the end of the day it relies on the authorization and access it receives from the executive. It’s also different from the shuttered Secretariat of Transparency in that it can offer “technical advice” to prosecutors from the Public Ministry working on corruption cases.
Since the Presidency and OAS signed an “agreement to advance the creation, objectives, and competencies of the International Commission against Impunity in El Salvador” on November 26, the CICIES office in El Salvador has reached agreements and laid out action plans with three more government bodies: the attorney general’s office; the Supreme Court of Justice; and the Ministry of Justice and Citizen Safety. None of the plans state that CICIES will be dedicated to investigating corruption cases.
El Faro gained access to these agreements, along with one other: the draft agreement, not yet finalized, with the Court of Accounts. All these documents conclude that the primary task of CICIES will be to provide technical advice to these Salvadoran institutions, if and when they ask for it.
In essence, the promise of an investigative commission hit a constitutional roadblock, requiring, if the government so proposes, two legislative sessions it needs to overcome: the first, to approve a reform permitting an international entity to intervene in criminal investigations; the second, to ratify the amendment. The Salvadoran Constitution establishes that the Attorney General’s Office is the sole entity authorized to investigate and take cases to trial.
It’s curious that none of the agreements outline a plan or concrete steps toward overcoming the judicial hurdle that CICIES is facing in order to function as Bukele promised. In fact, none of the documents set dates to propose legal reforms in the current legislature, whose term ends in April 2021. Such a maneuver would be key for a true anti-corruption investigative commission to begin to see daylight—supposing the ratification of the hypothetical reforms—between 2021 and 2024.
Bukele promised a commission that would emulate the work of the International Commission against Impunity in Guatemala (CICIG) and the Support Mission against Corruption and Impunity in Honduras (MACCIH). In these other instances, however, direct intervention in corruption cases was stipulated in the conventions, with the option to independently choose the cases to take in conjunction with the respective institutions. These countries were also able to include an integrated prosecutor’s office.
Despite Bukele’s declaration on Tuesday, November 19, that “CICIES is already investigating cases,” Ronalth Ochaeta, the interim commissioner for CICIES, acknowledged in an interview with the television program Focos on December 15 that the commission will not be able to investigate corruption cases. “We will not investigate cases. We will conduct forensic audits within the Executive and if we find elements or clues that allow us to deduce the commission of a crime, we will alert the attorney general's office so that they can subsequently conduct the investigation,” he clarified.
But any alerts are non-binding; the attorney general's office retains the right to accept or reject cases that CICIES recommends, according to the convention signed by attorney general Raúl Melara in mid-December. Further, by nature of being a technical office providing trainings to prosecutors on corruption-related topics, the attorney general's office also has the last word in determining, through new agreements, what type of trainings and advice the commission will give.
A guiding hand, but only when invited
Last December 9, the attorney general signed the 12-page convention, which establishes that CICIES will depend on the attorney general's office’s invitation to contribute to investigations and criminal prosecutions in cases related to corruption or impunity. Article 6 of the convention states that the attorney general's office “is the lead agency in these matters and carries the responsibility of operational control of criminal investigations and prosecutions.”
That is not to say, however, that CICIES will actively participate in the attorney general's office’s corruption cases. The commission will be able to advise the prosecutors assigned to those cases, but that will only happen if the attorney general judges it convenient. Otherwise, their role will be limited to receiving cases from state agencies, presenting them to prosecutors and awaiting Melara’s invitation.
“Our starting point is the attorney general’s invitation to participate, not in the investigation, but in the technical advice that he is giving,” Ochaeta said in the interview with Focos. He added that this advice will give the attorneys and their teams the technical skills to conduct their investigations.
According to sources involved in the negotiations, the attorney general's office is devising a protocol that will define what type of legal counsel the attorneys will receive. The attorney general's office will submit its proposal next month to the commission and will wait for their response to put it into action.
CICIES cannot conduct any investigations because Article 193 of the Salvadoran Constitution indicates that the attorney general's office will be the only agency charged with “officially or upon the petition of a party [promoting] the action of justice in defense of legality; [directing] the investigation of crime with the collaboration of the National Civil Police in the manner determined by law; officially or upon the petition of a party [promoting] penal action; […] and exercising other powers prescribed by law.”
Normally, nobody outside the attorney general's office can access information from their investigations, but Article 8 of the attorney general's office’s convention with the commission indicates that the CICIES will be able to access information in certain cases when technical, but not investigative, help is required. In his interview on Focos, for example, Ochaeta indicated that cases that Bukele had claimed to have submitted to the commission—even before it was formed—are not within the purview of the commission “because they are already with the attorney general's office.”
The commission cannot currently act as plaintiff in corruption cases either, but the executive branch is looking to push a reform that will enable CICIES to act as plaintiff. No timetable has been set yet for that effort.
The executive is also arguing for several reforms to criminal investigation and prosecution procedures, in order not to conflict with the mission of a future investigative commission. Among the recommendations it might submit to the attorney general's office are: creating procedures for the prosecution of corruption and the fight against impunity; legal reforms related to the prevention of and fight against corruption and impunity; and legal and administrative reforms to the attorney general's office, affecting its functioning, procedures, and management models in the fight against corruption and impunity.
The executive will also be able to recommend reforms to the transparency requirements of public institutions, private entities and associations, and individuals referred to by money and asset laundering laws; the intervention of the National Civil Police in money laundering cases; and the freezing of bank accounts in such cases.
Similarly, the Presidency agreed to allow the OAS-led commission in El Salvador to access all information in the executive branch. In Article 5.1.2, referring to the government’s obligations, both parties agreed that CICIES will have “immediate access to information in the possession of the Executive Branch, including official files, databases, public records, and any other document or information for the fulfillment of their duties.”
In the case of institutional information dependent on a body other than the executive, such as the Legislative Assembly or municipal governments, CICIES could ask for such information—at least according to the agreement—using the Law of Access to Public Information (LAIP).
These conventions leave room for serious doubt. In reference to courses of action and technical assistance, Article 6.1.1 of the contract with the Presidency establishes that CICIES will give “technical assistance, accompaniment, and active collaboration in the investigation, criminal prosecution, and punishment of acts of corruption just as in the dismantling of networks of corruption.” This contradicts the convention signed between CICIES and the attorney general's office, but above all it contradicts the Salvadoran Constitution.
The conventions for “technical assistance”
The conventions signed by the Supreme Court of Justice and the Ministry of Justice, as well as the draft of the Court of Accounts convention, have almost identical wording. The articles and subparagraphs are repetitive almost to the letter.
The conventions of the Presidency and attorney general's office have laid out, in broad terms, which reforms are necessary for the CICIES to function as promised. The three remaining agreements—with the Supreme Court of Justice, the Ministry of Justice, and the Court of Accounts—are too general, failing to specify any necessary reforms. These three texts, similarly drafted, say that the Salvadoran institutions are committed to drafting and proposing legislation, models, legislative guides, and documents related to the agreements.
Furthermore, questions abound in these last three conventions. For example, the conventions with the Court of Accounts and Ministry of Justice repeat almost word-for-word that both CICIES and the Salvadoran parties commit to collaborating, when desired, in the prevention and punishment of acts of corruption and other related crimes. How can an international commission prevent or punish without the legal authority to do so?
The Court of Accounts already has statutes in place barring outside access to information about audits and trial records—it supplies the latter to the attorney general's office by law. It’s thus unclear what type of coordination might exist between the Court of Accounts, which is considered the comptroller of state institutions, and CICIES.
The Supreme Court of Justice says only that it commits to “collaborate in the context of causes related to acts of corruption and other connected crimes,” without specifying if that means the commission will have access to records from the Division of Integrity, misconduct cases from the judicial branch, or judicial records related to corruption cases.
On the other hand, these conventions leave open the possibility to expand and reinforce the agreements and the points they outline. Article 4 of the three texts indicates that the parties can agree to and implement programs, projects, and/or joint activities that must be signed by their representatives.
*Translated by Roman Gressier
