More than 65,000 people detained, nearly a hundred dead in prison, torture, arbitrary arrest, suspension of constitutional rights, concealment of public information, no-bid government contracts and purchases, and incarceration without cause are just some of the most visible effects of El Salvador’s state of exception, which this week has been in force for one year, having been extended, uninterrupted, 11 times in the same number of months.
El Salvador’s state of exception is a legal framework involving over a dozen legislative decrees that introduce significant changes to the country’s public security and judicial systems, such as the introduction of masked judges licensed to sentence people who are absent from court, or the condemnation of children as young as twelve, who would otherwise be remanded to juvenile correction, to up to ten years in prison.
The state of exception is an extraordinary mechanism permitted by Article 29 of the Constitution of El Salvador, which establishes a list of fundamental rights that, depending on the nature of the emergency, can be provisionally eliminated by the government to reestablish social order. In March 2022, after 87 people were murdered in the country in one weekend, President Bukele ordered the Legislative Assembly to activate the emergency decree by the end of that month. An investigation by El Faro later revealed that the killings had been perpetrated by the Mara Salvatrucha-13 (MS-13) as retribution, after the Bukele administration arrested members of the gang in apparent violation of the secret pact the two parties had maintained since 2019.
Initially, the state of exception had its sights on MS-13, but as the months passed, its scope grew to also target the Barrio 18 Sureños and Revolucionarios gangs, and even some smaller criminal groups dedicated to drug sales.
Official figures —the only numbers available, due to restrictions on access to public information— place the number of arrests under the state of exception at roughly 65,000. It is impossible to know whether these statistics take into account people arrested as they exited the prison gates after completing a prior sentence, or those who have been captured, released, and then recaptured days later. The government has not provided disaggregated data or any official reports on prisoners who have been released.
In January of this year, the Minister of Justice and Public Security, Gustavo Villatoro, stated in a television interview that the government had released 3,313 individuals arrested under the state of exception, or 5.4% of the total number of officially registered detainees. Legislative representatives and Bukele administration officials assert that the innocent will be released, and that such cases should be considered normal mistakes, typical of any judicial system.
Since the state of exception began, the government’s propaganda machine has churned out an endless stream of images celebrating the subjugation of alleged criminals: in the first weeks, the police even disseminated videos depicting the torture of people in their custody — men in handcuffs, faces smashed against the pavement, boots pressing down on their necks.
In late February of this year, the Bukele administration again resorted to a classic iron-fisted optic that it has used since 2020: Images of hundreds of tattooed prisoners, sitting, semi-naked, pressed against each other like sardines and surrounded by riot police. In this case, according to official reports, the photos depicted the transfer of some 2,000 alleged gang members to the state of exception’s newest monument to carceral power: the Terrorism Confinement Center (CECOT), which the government touts as the largest prison on the continent, with the capacity to hold more than 40,000 prisoners.
If this is true, the new facility has doubled El Salvador’s prison capacity. And if the official arrest figures are also reliable, the country now has the highest incarceration rate in the world, according to the World Prison Brief (WPB), a database hosted by the Institute for Crime and Justice Policy Research at the University of London. According to the WPB, in March 2022, before the state of exception went into effect, El Salvador had imprisoned 605 people for every 100,000 inhabitants. Under the state of exception, that rate has reached 1,540 per 100,000, meaning roughly 2% of the entire population of El Salvador is now behind bars.
Prior to the state of exception, El Salvador housed 37,000 inmates in a prison system designed for 27,000 people. Overcrowding was the norm. If the official figures are true, the more than 65,000 people arrested under the state of exception have raised that prison population to over 100,000. If the Terrorism Confinement Center adds 40,000 beds, that will still leave the system overcrowded, despite having a capacity to hold nearly 70,000 prisoners.
Contrary to the official narrative that arrests of innocent people are a rare exception, various individual cases corroborated by fact, along with several international reports and numerous investigations published in the press, show that arbitrary detentions are widespread and systematic, and several released inmates have reported witnessing torture and deaths in prison.
In May 2022, barely two months into the state of exception, El Salvador’s national police union (MTP) reported numerous complaints from officers protesting the enforcement of a “daily arrest quota,” which they said they were required to fill regardless of whether or not they could attribute any real crimes to the people they detained.
The MTP highlighted the case of Cinquera, a small municipality northeast of San Salvador in Cabañas department, where the police chief reportedly ordered 30 arrests per day to satisfy the government’s political discourse. But in Cinquera, there are no gangs, MTP leaders said. In June 2022, the police union reported several similar cases in police jurisdictions in the department of Santa Ana, where officers who refused to make arbitrary arrests to fill a quota were reportedly threatened with transfer to La Unión, a department on the opposite side of the country.
El Faro was able to confirm a similar case: that of El Espíritu Santo, an island that has never had any gang presence, as confirmed by police from Puerto El Triunfo, the municipal seat of Usulatán, the department encompassing the island. Despite this, 22 young men were arrested there under the state of exception, including a former FIFA Beach Soccer World Cup player. Most of them remain behind bars.
The list of international organizations who have denounced human rights violations under the state of exception is long, and includes allegations of torture by Amnesty International, as well as inquiries by six United Nations offices into reports of enforced disappearances and deaths in prison. In December 2022, Human Rights Watch (HRW) and the Salvadoran organization Cristosal published a report documenting hundreds of arbitrary and illegitimate arrests. The organizations described these arrests as “massive and indiscriminate,” and the human rights violations of detainees as “widespread and severe.” In January of this year, HRW reported gaining access to a leaked database from the Ministry of Security and Justice that confirmed reports of “mass due process violations” and “large-scale” human rights abuses.
In February 2023, an investigation by El Faro revealed that, after months of arbitrary arrests and rights abuses, the government had largely succeeded in dismantling the gangs’ internal structures in El Salvador. In a statement cited in that investigation, Zaira Navas, former inspector general of the National Civil Police (PNC) and current coordinator of Cristosal’s state of exception task force, said: “The investigations we have undertaken appear to suggest that the number of gang members captured under the state of exception doesn’t even account for 30% [of their total ranks]. The rest —the majority— are civilians.”
It is a fact that some gang members have fled the country due to the state of exception, living in hiding in Honduras, Guatemala, Mexico, or the United States.
Many people arrested under the state of exception have died in prison. But again, official accounts tend to come from statements by government officials, without evidence, data, or independent assessments. On November 7, in a television interview, Minister Villatoro stated that 90 people captured under the state of exception had died in custody. He neglected to discuss what had caused these deaths, writing them off as “normal” and claiming that “there is death in every prison system.”
Last week, the head of the Nuevas Ideas ruling party bloc in the Legislative Assembly, Christian Guevara, said during a televised interview that the majority of deaths in the prisons were murders, then used this claim to argue that the young men arrested under the state of exception were not “little kindergarteners,” but dangerous terrorists.
Dozens of cases reported by the Salvadoran press speak to a cruel reality. Take, for example, the case of Francisco Huezo López, a dairy farmer from La Reina, Chalatenango, who in June 2022 was summoned to the local police station, where he was then arrested and taken to Mariona Prison. Two months later, Don Paco, as his friends and neighbors knew him, returned home in a coffin, with his body —like those of at least 35 others who had left prison in a casket— showing signs of torture. The police justification for Don Paco’s arrest was that he had been charged in 2019 for collaborating with gangs. But Don Paco had been found innocent of that allegation, and his acquittal was upheld by a higher court.
Dubious origin
The state of exception authorized by President Bukele provisionally suspended four basic rights for everyone in the country: the right to a defense attorney in the event of arrest by the police, the right to be presented before a judge within 72 hours of arrest, and the inviolability of private communications and correspondence in the absence of a court-ordered warrant. The fourth suspended right was the right to free association, which was restricted for five months between March 27 and August 17, 2022. The Legislative Assembly reinstated this right when it extended the state of exception for the fifth time.
Additionally, in April, the Legislative Assembly approved a separate decree that frees the government from its obligation to consider bids for public contracts and purchases while the state of exception remains in force. This has allowed the Bukele administration to award direct, no-bid contracts to select private companies, and to conceal all information on prices and purchases, including for the multimillion-dollar contract awarded for the construction of the Terrorism Confinement Center.
The decree is similar to another legislative order approved in 2020 during the pandemic. According to El Salvador’s Attorney General’s Office, two out of every three government contracts and purchases that year showed signs of irregularities.
Exceptional decree
The state of exception was authorized on questionable grounds. A 1997 ruling by El Salvador’s Supreme Court of Justice established that an increase in crime rates does not constitute a sufficient reason to enact the emergency measure, because rising rates of criminality do not actually imply a serious crisis of national and social order that cannot be addressed using other mechanism already available to the state.
In fact, the Bukele government had taken a different approach in the case of two other massacres perpetrated by gangs during the period when the government truce with the gangs was in force: In April 2020, at the height of the pandemic, gangs killed 76 people in four days. The president ordered the Armed Forces to use lethal force against any suspected criminal who resisted arrest. This was also when images of tattooed gang members arrested en masse were first circulated by the government. But no state of exception was declared, and the increase in homicides abated. In November 2021, gangs went on another killing spree, murdering 45 people in three days. Audio recordings of incarcerated gang members obtained by El Faro revealed that, far from decreeing a state of exception, the government instead was conducting secret negotiations with gang leadership to put an end to the killings in the streets.
The maelstrom of murders in March 2022 ended on Monday, March 27, the day the state of exception was approved and the country was militarized. According to information compiled by civil society organizations, however, the authorities not only enforced the legally authorized restrictions; they also began to violate rights that, legally and in theory, had not been suspended by the emergency decree. “The state of exception is an idea they’ve sold us, but it’s a de facto regime, permanent, plagued by unjustified rights violations,” says Abraham Ábrego, Director of Strategic Litigation at Cristosal. Ábrego and his team have received 3,219 complaints of human rights violations, of which 3,122 were related to arbitrary detentions.
The state began violating other rights as well. For example, the right to presumption of innocence. Leaked judicial filings showed that, without any justification other than “appearing nervous,” police and soldiers arrested dozens of people and subjected them to special judicial processes that operate in total secrecy — a measure the Attorney General’s Office has defended, arguing that the press might use details from proceedings to generate “panic in the population.”
The state of exception, at least on paper, has not suspended the right to be free from unwarranted searches and seizures. But there are numerous cases of people being arrested in the privacy of their own homes, as Cristosal has denounced. Torture of detainees is also not permitted under the state of exception, yet there are many cases in which detainees report being subjected to torture at the hands of soldiers or police, as happened to eight young boys in September 2022, in Bajo Lempa, a region in the department of Usulután.
Key to understanding why the state of exception has been extended for an entire year is the fact that Bukele has ordered the Legislative Assembly, which he effectively controls, to make multiple changes to the law to ensure that, once in prison, defendants would have little chance of being released through alternatives to pre-trial detention. Bukele had already delt a major blow to judicial independence in 2021, when he compelled the Assembly to force a third of all judges in the country into retirement, then replaced them with magistrates sympathetic to the ruling party. Cristosal has reported cases of judges who opted to release individuals prosecuted under the state of exception, and who were then punished by the ruling party for doing so. These judges were transferred to faraway courts or demoted.
On March 24, former magistrate Sidney Blanco spoke before the Inter-American Commission on Human Rights in Washington, D.C., denouncing President Bukele for “denigrating and destroying judicial independence,” which in turn, “destroys democracy and normalizes serious and systematic violations of human rights… Judges in El Salvador are afraid,” he said.
A system adapted on the fly
In the early morning of March 27, 2022, legislators were in such a hurry to approve the state of exception that pro-government representative Elisa Rosales did not even realize that she had misplaced her copy of the decree and was reading some other document. Nobody seemed to notice, and when the vote was called, 67 representatives loudly pronounced themselves in favor of the measure. “The state of exception, apparently, was not really planned, but was the product of a breakdown in the negotiations [between the government and the gangs],” says Ábrego, of Cristosal. “When they did it, they realized that it was producing results in terms of popular support, so they decided [to keep it in place] to use it for that,” he adds.
In February 2024, Bukele plans to run for a second term, despite El Salvador’s constitutional ban prohibiting consecutive reelection.
The next step was to ensure that detainees stayed in prison. The government wanted to avoid repeating the mistake of former President Francisco Flores, who had launched a similar initiative in 2003 known as Plan Mano Dura (“Plan Iron Fist”), rounding up hundreds of people for looking like gang members, but only managing to hold them for a few hours, in what turned out to be more of a political stunt than a public policy.
This was why the Bukele administration moved to eliminate the constitutional right to be presented before a judge within 72 hours. The time limit on pre-trial detention was extended to two weeks, after which a judge must hold a preliminary hearing. A judge would then decide whether the accused should remain in pretrial detention while their case is processed, or if the individual should be free to return home and undergo the process with relative freedom.
The government then rushed through more changes to the law, this time affecting seven different criminal codes: the Criminal Procedure Code, the Law Regulating Drug Activities, the Penal Code, the Special Law Against Acts of Terrorism, the Juvenile Penal Law, the Special Law Against the Crime of Extortion, and the Law on Rewards and Elimination of Impunity for Acts of Terrorism.
In contrast to the normal notion that laws should apply to everyone equally, the government made it explicit that, in the case of accused gang members, these codes were to be applied with maximum severity. Article 331 of the Criminal Procedure Code was modified so that no judge can grant pretrial probation to gang members prosecuted for “any crime.” And a reform to Article 8 of the same code stipulated that, even when the maximum two-year legal term for pretrial detention has been reached, no gang member can be released on probation.
The overburdening of public defense attorneys, prosecutors, and even judges has meant that many pretrial hearings now process dozens or even hundreds of defendants in a single appearance. In such cases, no defendant is able to present an individual case, much less after only 15 days in pretrial detention, and the vast majority are remanded to prison by judges who rule without considering whether the state has any evidence to back up their claims that these men are gang members and belong behind bars.
As a result, thousands of Salvadorans are now locked up in prison, stuck in limbo as they await the results of indefinite processes, and are indefinitely stripped of their rights, without ever having the opportunity to speak to a lawyer. These people can spend any number of years in prison, without ever being convicted, until their cases are resolved.
Another reform, to Article 88 of the Criminal Procedure Code, permits accused gang members or collaborators to be sentenced without any hearing before a judge, in open contravention of the American Convention on Human Rights ratified by El Salvador in 1978. This reform stipulates that if a defendant is a fugitive, the process initiated against him will continue regardless, and the accused can even be sentenced in absentia.
A week into the state of exception, the Bukele administration requested three more reforms. It proposed an ambiguous change to the wording of article 345 of the Penal Code that would punish journalists and other citizens who spread gang-related messages, which a judge determines might cause “anxiety” in the population, to 10 to 15 years in prison. A month after this reform was passed, El Faro published leaked audio proving that the gang massacre that had prompted the state of exception was a result of the collapse of the government’s covert pact with MS-13, and further revealing that the government had illegally released a gang leader from prison to calm tensions in the streets.
The government did not stop there: Bukele and his legislators requested changes to the Law for the Proscription of Gangs, Associations, and Organizations of a Criminal Nature, which included a clause declaring “any form of visual expression” alluding to gangs illegal. The third decree approved that day authorized the creation of the Special Law for the Disposition and Use of Goods, Money, Values and Assets Seized from Organized Crime, Terrorism and Drug Trafficking Organizations, which, among other things, extends the time period for a prosecutor to request the seizure of property that investigators allege belongs to a criminal.
Despite these changes, cases brought by the Attorney General’s Office still had one weakness: the government could not guarantee that charges would not be dismissed by a judge after a few months of investigation. Thus, between September and November 2022, the Supreme Court of Justice and the Executive Branch successfully petitioned the Legislative Assembly to approve four decrees introducing even more changes to the legal code. One decree modified the Telecommunications Law; another modified the Special Law for Telecommunications Intervention; and another made further changes to the Criminal Procedural Code.
The fourth reform, which involved the creation of new courts, merits special attention. In September 2022, the Casa Presidencial needed to ensure that judges would not dismiss cases brought by the Attorney General’s Office under the state of exception. The government feared that prosecutors would close the cases because at that time, in September, the six-month timeframe that the Attorney General’s Office had to complete their investigations and present evidence against defendants was beginning to expire. Aware of this vulnerability, Bukele ordered the Judicial Branch —which he had stacked with ruling party judges one year earlier, in September 2021— to create specific courts for cases brought under the state of exception. These courts are called Tribunals Against Organized Crime. Normally, at the end of a six-month investigation, a judge decides whether a case merits a trial or not. When a judge rules that a case should be dismissed, by law, the person must be immediately released. And this is what the government wanted to avoid.
So the Bukele administration proposed the creation of a new court system that, among other things, would eliminate one stage of the normal judicial process, by combining the last two stages: investigation and sentencing. “The right to have your case heard by an independent and impartial judge has been compromised, as have the judicial guarantees enshrined in the American Convention on Human Rights,” Cristosal concluded in a report published in September 2022.
Cristosal requested public information identifying the names of these special tribunal judges, but neither the National Judiciary Council (CNJ) nor the Supreme Court of Justice provided details.
In addition to the creation of these new courts, the Bukele administration instituted new time limits to make it even harder for people detained under the state of exception to be released on pretrial probation. Conan Castro, Bukele’s legal secretary, proposed a change to Article 17 of the Organized Crime Law. Now, under this new reform, if the Attorney General’s Office —currently run by a prosecutor hand-picked by President Bukele— determines that investigators need more time to gather evidence, it can petition an Organized Crime Tribunal for an additional 18 months of pretrial detention to continue investigating.
Right now, the primary mission of the Attorney General’s Office is to ensure that cases are transferred to an Organized Crime Tribunal, since these are now the official courts of the state of exception. “98 percent of all cases are for ‘illicit association,’ and they use this charge so that they can send people to these new courts,” says Ábrego. “There are cases where we’ve detected procedural fraud, where they arrest people in different places but then say that they were all arrested in the same place, and then this allows them to lie, and to classify it as an illicit association.” This claim is corroborated by sealed case dossiers obtained by El Faro, which show hundreds of arrests made on vague or fraudulent grounds.
One year into the state of exception, and the official position of the ruling party remains the same as in April, when the emergency order was first renewed: The state of exception will be extended as long as necessary, they say, without ever defining what they mean by “necessary.”
*Translated by Max Granger
