The Secretary of the Constitutional Chamber of the Supreme Court of Justice has a lot of work these days. In the lobby of the Palace of Justice, the usual crowd of lawyers who come and go filing all kinds of briefs is joined by a group of visitors who are unaccustomed to judicial proceedings. 'I didn't even know about these petitions. The lawyer from the Public Prosecutor's Office didn't tell me that this could be done,' says Marisela Hernández, a vendor from the San Martín market who arrived at the courtroom window one morning in mid-July to deliver a document requesting her sister’s release.
Hernández says that her sister, who is pregnant, was arrested on June 7 and detained in a police station after agents summoned her, supposedly to interview her about a crime of which she was the victim. 'Recently another one of my sister’s children was killed. Under the pretext of interviewing her for that investigation, they summoned her and she was arrested right there; that’s unfair,' Marisela says. The state assigned her, as with so many others, an overworked public defender who did not mention anything about habeas corpus. She’s only here at the courtroom window because she happened to see this type of petition discussed on the news; then she heard about fellow vendors who had been advised by a lawyer to file one.
To this point in 2022, the Constitutional Chamber has received 1,090 complaints like the one Marisela filed that July morning. According to official records, this is the first time in 27 years that so many habeas corpus petitions have been filed. As of Friday, July 22, the Constitutional Chamber had not accepted any of the cases filed since the state of exception was enacted on March 27, 2022, a source in the Supreme Court confirmed.
The previous record of 853 habeas corpus petitions was set in 2020. That year, the Bukele administration was accused of violating the population’s human rights with some of the measures it implemented during the pandemic lockdown, including detentions for over a month in military-controlled quarantine centers.
Between January 1, 2022, and the first week of April, the Constitutional Chamber received 242 habeas corpus petitions. Since the advent of the state of exception, the rate of these complaints has skyrocketed. From a weekly average of 18.6 through the first week of April, the number more than tripled to 68.1 through July 22.
We know the exact number of petitions because when filed each receives a number, starting with 1 at the beginning of each year. On the morning of July 13, a lawyer told El Faro that one of his habeas corpus cases had been assigned the number 997. Days later, Supreme Court sources confirmed what other lawyers had said: As of July 22, the number of cases had reached 1,090. That figure doubles the annual average of habeas corpus petitions filed since official records began in 1995, three years after the end of the 12-year civil war that left tens of thousands of people missing. Many of these people were captured by the state and never reappeared.
Hernández is the third person to arrive on July 13. Like her, each petitioner crosses the corridor at a slow pace, as if lost. A group approaches me and asks where to find the office for submitting petitions. From my post, I hear them say at the window: 'I’m here to file a habeas corpus petition.' After a few minutes, a public employee tells them from the other side of the window, once they’ve received the documents: “You can call in a month.”
Mid-morning on July 13, the man who accompanies Hernández also approaches the window. His name is Maximiliano Vásquez, and he, too, is a vendor at San Martin Market. He’s here to file his own complaint. Vasquez says that his son was arrested a month ago while working at a hairdresser's salon; he only knows that his son is being held at Mariona Prison. Then a woman from Guarjila, Chalatenango, arrives to report that police officers detained her husband while he was working on his motorcycle. They told her that they would take him to the police station just to ask him a few questions, but while he was there the police arrested him. At 10:45 a.m., a man in a tie and an ochre shirt arrives. He is upset because the Chamber is giving him contradictory information about his defendants, and then I find out that he is a lawyer. I am about to ask him if he is a public defender, but I restrain myself when the man lets out a desperate cry: “This is a nightmare!” He stuffs away his papers and leaves.
Within two hours, around fifteen people arrived at the same window. It's an unprecedented pace. Each person invokes Article 11 of the Constitution: habeas corpus can be used when someone's freedom has been restricted illegally or arbitrarily, and “when any authority violates the detainee's dignity or physical, psychological, or moral integrity.” They file petitions in the hopes that the Chamber will request reports from the authorities involved in the case and eventually issue a ruling that requires the detainee be shown. Despite the elimination of constitutional guarantees during the state of exception, arrests must still follow due process. If the Chamber detects due process violations, it could declare the arrest null and void and order the defendant’s release. To date, the Chamber has not acted on any of the 1,090 habeas corpus petitions filed this year.
At this rate, the year will end with over 2,100 habeas corpus petitions filed. Between 1995 and 2021, the Constitutional Chamber received an average of 458 such appeals per year, according to the court’s accountability reports, which include information from 1995 onward. Well before the end of 2022, the number of complaints is already more than double the annual average of the last 26 years: 138 percent more.
In contrast to what’s happening in the Constitutional Chamber, the lower courts have already accepted some habeas corpus petitions for processing, but there are only a small number. According to a report from the non-profit National Foundation for Development’s (Alac-Funde) anti-corruption office, in the entire country only eight complaints have been accepted by lower courts, because the law does allow habeas corpus petitions to be filed there as well.
Not all habeas corpus cases stem from detentions under the state of exception. Legal experts consulted by El Faro believe the vast majority of cases are linked to this period in which any soldier or police officer can detain anyone they consider suspicious and imprison them for up to 15 days without access to a judge. This situation has alarmed human rights institutions such as the Inter-American Commission on Human Rights (IACHR). Specialized organizations, including Human Rights Watch and the Washington Office on Latin America (WOLA), have also criticized the emergency measures, calling them a violation of the rule of law.
'The rise in habeas corpus petitions not only indicates an increase compared to previous years, but it is also symptomatic of the massive violations of people’s rights to personal liberty and dignity caused by the state of exception,' Sandra Santos, a professor of constitutional law at the Universidad Centroamericana José Simeón Cañas (UCA) and the Constitutional Chamber’s former coordinator, told El Faro. 'If the Chamber remains silent on these cases or rejects them en masse without considering that this regime has been violating rights since its adoption in March, and that it has been extended unconstitutionally, that would mean that habeas corpus in El Salvador is a suspended procedural guarantee, which contravenes international human rights law,' she added.
In the more than four months of the state of exception, authorities have arrested more than 48,000 people, doubling the number of detainees in an already overstressed prison system. The Bukele administration has promised to build a new prison in Tecoluca, San Vicente, to house 40,000 inmates, and has sponsored legal reforms to accomplish this while circumventing contract procurement oversight.
Habeas corpus cases do not have to be resolved within a fixed period of time. As a result, according to Court sources, the Constitutional Chamber has a backlog of unresolved cases of this type. Currently, the Chamber is ruling on actions from 2019. According to Santos, the court usually rules on cases in the order they are received, although she explained that there are contexts in which cases labeled 'urgent' gain their immediate attention.
Such was the case in March 2020, just after the Bukele administration ordered a mandatory lockdown. Amid the pandemic, the Chamber accepted and ruled on several cases. One of those was case 148-2020, which the court agreed to consider just four days after three women were arrested while shopping for food and medicine at a market in Jiquilisco on March 22. The Chamber received the complaint by email; it named President Bukele and the head of the Jiquilisco National Civil Police as defendants. The Chamber issued follow-up resolutions on April 8 and April 15, ordering state institutions to respect human rights during the crisis.
According to Santos, this case shows that at times of crisis like the current one, the Chamber can act immediately. The lawyer recalled a paragraph from a case brief in support of habeas corpus for the three women: 'This Court, despite the emergency decree, cannot paralyze its activities and its role in protecting individuals’ fundamental rights; what it can do is adapt to the factual demands that arise, taking into account not only purely normative considerations, but humanitarian, social, scientific, etc. ones as well. In fact, constitutional guarantees, understood as protection mechanisms, must be adapted to the reality they are intended to regulate.'
Since May 1, 2021, the Constitutional Chamber has been taken over by magistrates installed by the Bukele-controlled Legislative Assembly. The ruling party’s representatives, who began their work that same day, dismissed the previous Chamber without a legal process. That night, the police entered the Palace of Justice to escort the new officials to their swearing-in. The Chamber’s former judges confirmed that they signed their resignations under duress.
To date, habeas corpus petitions have been more likely to succeed in courts other than the Constitutional Chamber, although the latter is where most of the cases have been filed. For example, a total of 117 were filed during the first month of the state of exception; of those petitions, 86 were filed with the Constitutional Chamber while only 31 were submitted to different courts, according to a report by Alac-Funde.
Not everyone dares to talk about their claims at the Chamber's window. Two men who came to file a complaint on July 13 said they did not want to speak to journalists because it would only get them into trouble. 'Look, what they have done to our relative is unjust; he has already been detained for 17 days. But if we talk to the press, it would only expose us, which could work against what we want for him,' said the younger complainant. 'We are going to wait to see if they resolve [the case] in our favor,' the older petitioner added.
*Translated by Jessica Kirstein