If El Salvador’s Legislative Assembly approves a proposal by Attorney General Raúl Melara to reform both the country’s criminal code and the “organic,” or foundational, laws of the Attorney General’s Office (Fiscalía General de la República, or FGR), the FGR would have at its disposal a new elite group of prosecutors to assist with technical-scientific criminal investigations and other investigative functions currently under the exclusive purview of the Policía Nacional Civil (PNC), the country’s federal police force. These new functions would include carrying out criminal investigations, raids, and arrests in cases of corruption and organized crime.
Melara’s proposal—the most notable in a series of reforms requested by the FGR, and one which will allow federal prosecutors to act alone, without requiring PNC collaboration—comes two weeks after the National Civil Police obstructed anti-corruption prosecutors in their efforts to conduct an investigation into irregularities in pandemic-related government contracts, a move that underscored ongoing concerns about the politicization of state security forces and caught the attention of members of the U.S. Congress.
According to the proposal, presented before the Legislative Assembly on November 23, the new investigative body attached to the FGR—the Cuerpo Técnico de Investigación Criminal—“will be an entity of agents with authority incorporating three areas—operational-investigative, administrative, and technical-scientific—but will not under any circumstances conduct public security activities, which are constitutionally reserved for the Policía Nacional Civil.”
“[The new agency’s] hierarchical structure will be comprised of a director, deputy director, and three prefectures, one for each designated area, with investigative agents for each office assigned in accordance with the internal protocols of the the FGR and under the authority of the Attorney General of the Republic,” the proposal reads, going on to specify that the reforms to the FGR are designed in large part to bolster efforts to fight corruption and organized crime.
The 107-page document proposes the incorporation of 101 new articles to the Ley Orgánica de la Fiscalía General de la República, a set of “organic,” or foundational, laws, that have been in effect since 2006. The proposal also calls for reforms to the Criminal Code, the Criminal Procedural Code, and the Organic Financial Law of the State (Ley Orgánica de Administración Financiera del Estado, or AFI).
The reforms seek to strengthen the role of the FGR by creating a technical investigative body, modernizing the Attorney General’s office, and ensuring budgetary autonomy. Representatives from the Commission on Legislation and Constitutional Affairs have lobbied in favor of the reforms since November 17, and the motion has the support of the country’s two main opposition parties.
A Replacement for the PNC?
The FGR has made it clear that members of the new investigative team will not be involved in public security enforcement, which, in accordance with Article 159 of the Constitution of the Republic, is the sole responsibility of the PNC. However, the Cuerpo Técnico would have the same powers as the police in supporting investigations, searches, and other actions ordered by the FGR.
If the proposed reforms are approved, members of the new prosecutorial team would also have the ability to conduct undercover operations and make arrests in cases where the FGR issues an arrest warrant. Agents of the Cuerpo Técnico would also have the authority to carry firearms. According to article 46 of the proposed new law, “members of the Cuerpo Técnico de Investigación Criminal shall have the right to carry firearms of any caliber—including those equipped with burst-mode selectors—which shall be included in the gear kit supplied by the institution, and shall be used during the exercise of official functions and for the duration of their term.”
The proposal not only seeks to create a tactical team for carrying out raids and other operations, but also a specialized unit that would provide technical-scientific analysis, oversee the chain of custody for evidence collection, and serve as a liaison with various national and international organizations with whom the FGR maintains cooperation agreements for the investigation of crimes. The unit would also supervise the specialized laboratories used by the FGR for criminal investigation and analysis.
“It is necessary to have professional and technical staff capable of developing expertise in various disciplines and collaborating promptly and directly with lead prosecutors in a given case,” the document reads.
In response to questions by Nationalist Republican Alliance (ARENA) party Congressman Carlos Reyes regarding the number of personnel the unit will require, Attorney General Melara estimated that the unit will be composed of around 100 members.
Another function of the team, according to Article 22 of the proposed law, will be to provide security for the acting Attorney General and his or her family. The Division of Protection of Important Persons (PPI), a unit created by a federal law passed in 1993 for “the protection of persons subject to special security,” has always depended on the PNC to provide protection to the Attorney General. Under the current law, the Attorney General can request up to four individual security guards, but Melara's proposal would designate eight personnel to serve as security for the AG.
In order for the new agency to be able to conduct effective criminal investigations, the proposal brought before the Legislative Assembly by the FGR includes altering seven articles of the Criminal Code, 36 articles of the Criminal Procedural Code, and one article of the AFI law. For example, the reformed Article 72 of the Criminal Procedural Code would make the Attorney General responsible for “directing, coordinating, and legally controlling the activities of the police, the Cuerpo Técnico de Investigación Criminal of the FGR, and other institutions that collaborate with the FGR’s investigative functions, under the terms established in this Code.”
Manuel Escalante, deputy director of the Institute for Human Rights at the Central American University (UCA), claims that the proposal is an appropriate response given the current situation, in which the police have become decoupled from the FGR, in clear contradiction of the constitution’s mandate. The PNC has gone from collaborating with investigative proceedings during the pandemic, to the point where the agency claimed to be overburdened, to hindering the work of prosecutors investigating acts of corruption involving more than $135 million dollars in pandemic-related expenditures by various government ministries. “If the Executive Branch is not going to pursue prosecution, the most important thing is for the FGR to maintain its independence,” Escalante says.
New “prosecutorial agents”
The new unit proposed by the FGR would initially be staffed by “internal personnel with experience in areas of analysis and research, and external persons with the experience and skills necessary for the work entrusted to them.” But the proposal also provides a more detailed profile of the new unit and its agents, who will apparently function as hybrid police-prosecutors, with the capacity to perform enforcement activities currently only granted to the police. In its legal justification for the reforms, the FGR cites as models of inspiration the U.S. Federal Bureau of Investigation and similar independent investigative units in Honduras and Costa Rica that function autonomously from the police. In a situation much like the one currently transpiring in El Salvador, the Honduran unit was born out of a need for an investigative agency independent from the Honduran police, one of the most compromised police forces in the region, with links to organized crime, drug trafficking, and death squads.
Currently, the budget for the Attorney General’s Office is determined by the Treasury Department (Hacienda), then submitted to the Legislative Assembly for approval. This is why the FGR has requested that the Assembly approve the modification to Article 36 of the AFI law, so that it can develop its own budget in accordance with Articles 2 and 169 of its organic law.
The FGR’s proposed Article 2 would empower the institution to enjoy “functional, technical, budgetary and administrative” autonomy. According to the document, the FGR would prepare its own annual income and expenditure projections, as well as the institution’s salary scale, in accordance with the policies of the AFI and the Ministry of Finance. The amendment also details certain processes and requirements that the FGR would need to complete for its budget to be approved by the Legislative Assembly. In principle, the budget would have to be “consistent with the [agency’s] assigned constitutional and legal powers,” and “ensure the constitutional independence of the institution.”
Escalante says that such a proposition is not without precedent. In September of last year, ARENA and the National Coalition Party (PCN) proposed a reform to the Constitution that would have assigned 3 percent of the country’s general budget to the FGR. But the proposal was never passed. “It’s essential for the institution to have its own budget so that it’s not dependent on outside political interests and the decisions of the Legislative Assembly,” Escalante explains. The FGR budget presented on September 30th by Finance Minister Alejandro Zelaya is USD $104.2 million, USD $12.7 million more than the previous year’s approved budget.
The FGR’s current attempt to sever the umbilical cord that has long tied the agency to the National Civil Police was not born through spontaneous generation. Rather, the desire to strengthen the office of the Attorney General (or to protect it from an increasingly politicized national police force) has been a constant theme throughout the history of the FGR. In 2017, for example, Attorney General Douglas Meléndez proposed creating a new police force that would operate under his oversight, as a response to accusations that the PNC was involved in malpractice and human rights violations. “We work with borrowed teeth and with borrowed hands,” Meléndez said in July of that year. But his proposal never developed into anything more than a statement of intent.
Given the PNC’s behavior thus far under the Nayib Bukele administration, the FGR's move makes sense, according to experts. The FGR’s lack of trust in the police, for example, has meant that the agency is not only unable to count on the PNC to assist with investigations into irregularities into pandemic-related government spending—investigations which resulted from an audit by the newly formed Commission Against Impunity in El Salvador (CICIES)—but that these investigation are being actively obstructed by the PNC. This case has revealed that at least USD $20 million out of the USD $31 million allocated by the government for the purchase of pandemic-related medical supplies are under suspicion of illegal negotiation.
The Attorney General did not request the support of the police in any of these recent investigations—including with the execution of search warrants—because the FGR has lost trust in the PNC, which as early as last May had indicated an unwillingness to assist with investigations that targeted the government or its own police force.
Hours after the FGR submitted the proposed reform, Bukele spoke out against the idea of creating a new police unit. According to the President, the Salvadoran Constitution only authorizes the police to collaborate with the FGR, not for the FGR to have its own police. “The @FGR_SV can’t have its own ‘police’ and rob the @PNCSV of its role in the investigation, no matter how much they want to take power away from the government,” Bukele tweeted. However, a paragraph in the proposed new law argues that Article 193 of the Constitution stipulates that the police are required to collaborate with the FGR, if the latter requests, and goes on to explain that “accompaniment is not an activity exclusive to said police force.” The 107 page document clearly indicates that in fact the Attorney General’s office will not stop relying on the support of the police, and will seek PNC assistance when they deem it necessary.
Rodolfo González, an ex-magistrate of the Constitutional Chamber of the Supreme Court of El Salvador and an expert on the Salvadoran Constitution, told El Faro that he believes that the FGR’s idea to create a new specialized unit is “viable.” Furthermore, González says, “there is no exclusivity”—meaning, there is nothing that stipulates that only the PNC is allowed to assist with FGR investigations. “For the purposes of investigating crimes,” he says, “it doesn’t make sense to prevent the FGR from having its own unit to investigate crimes and gather evidence.”
Wilson Sandoval, coordinator of the Asesoría Legal Anticorrupción (ALAC) at the National Development Fund (FUNDE), a research and advocacy NGO based in San Salvador, says that it would not be appropriate to modify the Constitution in order to create the new unit. “Modifying the Criminal Code is sufficient. I think it’s less a legal issue and more a political one,” he said.
Representatives from various political parties have voiced support for the proposed Ley Orgánica de la Fiscalía, despite not yet having seen the content of the draft proposal. FMLN representative Cristina Cornejo said she supports the move because she has no faith in the institution of the police. “It would be an auxiliary unit for assisting with the investigation… Unfortunately, trust in the National Civil Police is deteriorating; it’s ceasing to be a professional institution,” she said.
Representative Antonio Almendáriz, of the PCN, said that “the FGR can count on the nine votes of the ‘partido de manitas.’” Julio Fabián, of ARENA, has said that the reform proposed by Melara “is something that should have been done earlier. “The FGR is in charge of the investigation,” he added, “It shouldn’t have to depend on an expert from another institution.”