CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES

UNDER ARTICLE 19 OF THE CONVENTION

Initial reports of States parties due in 1997

Addendum

EL SALVADOR

[5 July 1999]

Introduction

1.         This document contains the first report of El Salvador in fulfilment of its obligations under article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter “the Convention” or “the Convention against Torture”).

2.         The report has been prepared by an inter-agency team coordinated by the Ministry of Foreign Affairs and consisting of representatives of the following agencies:  the National Public Security Academy, the Supreme Court of Justice, the Prisons Department, the Migration Department, the Judicial Service Training College, the Office of the Attorney-General of the Republic, the Office of the Inspector-General of the National Civil Police, the Salvadoran Institute for the Protection of Minors, the Ministry of Defence, the Ministry of Justice, the Office of the Procurator for the Protection of Human Rights, the Office of the Prosecutor-General of the Republic and the Technical Cooperation Project on Human Rights in El Salvador of the United Nations High Commissioner for Human Rights.

3.         El Salvador became a party to the Convention against Torture by virtue of Executive Agreement No. 688 of 19 October 1993.  With the subsequent ratification of the Convention by virtue of Legislative Decree No. 833 dated 23 March 1994, published in Official Gazette No. 92 of 19 May 1994, the domestic and international obligations provided for in this important human rights treaty entered fully into force in the country.

4.         As the international community is well aware, El Salvador is in the middle of a process of profound institutional and legal change as a result of the signing of the Peace Agreements, which allowed the armed conflict to be ended by means of negotiation and the conditions for strengthening democracy to be established.  These changes have helped to bring about a favourable situation in which it is possible to envisage the total elimination of the practice of torture and cruel, inhuman or degrading treatment or punishment in El Salvador.

5.         From the legal point of view, there have been considerable changes in the protection of human rights under the Constitution and subsidiary law, as a result of the adoption of reforms of the guarantees of due process and the protection of the rights of detainees.  Two examples of how the Salvadoran legal system is integrating universal human rights values are the broadening of the scope of habeas corpus, entailing a review of conditions of detention, and the adoption of the new Penal Code, Code of Criminal Procedure and prison system with built-in safeguards.

6.         The institutional framework of the Salvadoran State was also affected in many ways by the Peace Agreements.  One of the areas to have undergone the most changes is that of public security.  The biggest change in this area has clearly been the disappearance of the former security bodies and their replacement by the National Civil Police (PNC), which has a specific constitutional mandate to protect human rights and whose members are trained in the National Public Security Academy, which places special emphasis on human rights education.  In addition to this new framework, there was a change in the constitutional mandate of the Armed Forces, whose duties were basically restricted to the defence of national sovereignty.  It is also worth drawing attention to the creation of new mechanisms to monitor police conduct, such as the Office of the Inspector-General of the PNC and the internal police disciplinary units. 

7.         One of the most important institutional achievements of the Peace Agreements was the establishment of the Office of the Procurator for the Protection of Human Rights (PDDH).  As a result of constitutional reform, the protection of fundamental rights and freedoms was significantly strengthened by the integration into the domestic system of an agency with extremely wide‑ranging powers to monitor the performance of the entire State apparatus in respect of individuals.  The National Civil Police, the prison system and the judiciary are monitored by PDDH, with particular attention being paid to the rights of individuals deprived of their freedom.

8.         As shown by this document, a firm basis is thus being laid in El Salvador for a new era of the protection of fundamental rights and freedoms in accordance with the legitimate wishes of the international community.  The Government and Salvadoran society are taking the necessary steps to rebuild a country where peace, democracy and full respect for human rights can flourish.

                        I.  GENERAL LEGAL FRAMEWORK FOR THE PROHIBITION AND ELIMINATION OF TORTURE

9.         In accordance with the Constitution, El Salvador is a sovereign State in which sovereignty is vested in the people, who exercise it in the form and within the limits laid down in the Constitution. 

10.       The Government is republican, democratic and representative.  The political system is pluralist and is reflected in political parties, which are the sole instrument for the representation of the people in the Government. 

11.       Public authority emanates from the people, the basic branches of the Government being the Legislature, the Executive and the Judiciary.  The duties of these branches may not be delegated, but they cooperate with one another in performing public functions.  Public officials are therefore the delegates of the people and have no powers greater than those expressly conferred on them by law (arts. 83, 85 and 86 of the Constitution).

Legislature

12.       The Legislature is a collegiate body consisting of 84 deputies elected by the people by direct, secret and equal ballot.  The deputies represent the people and are not bound by mandatory terms of reference.  They are elected for a term of three years and can be re-elected.  Their job is to legislate, i.e. to decree, reform, interpret and repeal the laws of the country. 

13.       For the purposes of a decision, the vote of at least one half of the elected deputies plus one, i.e. 43 deputies, is required.  However, a number of decisions require a two-thirds majority, such as the election of the Attorney-General of the Republic, the Prosecutor-General of the Republic and the Procurator for the Protection of Human Rights. 

14.       While in office, deputies may not occupy any paid public post throughout the period for which they have been elected, except for academic or cultural posts or those connected with professional social welfare services.

Executive

15.       The executive consists of the President and Vice-President of the Republic, the ministers and deputy ministers of State and their subordinate officials.  This branch of the Government acts in conformity with the Constitution and its own regulations. 

16.       The conduct of business is the responsibility of the Secretariats of State, which are assigned to the various sectors of the administration.  Each Secretariat is headed by a minister, who acts in cooperation with one or more deputy ministers.  During the current presidential term of office, the ministries are as follows:  Ministry of the Presidency, Ministry of Foreign Affairs, Ministry of Justice, Ministry of Finance, Ministry of Economic Affairs, Ministry of Defence, Ministry of Public Security, Ministry of Labour and Social Insurance, Ministry of Agriculture, Ministry of Health and Social Welfare, Ministry of Works and Ministry of the Environment and Natural Resources.

17.       In accordance with article 159 of the Constitution, defence and public security are to be assigned to different ministries; public security will be the responsibility of the National Civil Police, which is to be a professional, independent branch of the Armed Forces and free of all partisan activity.  The National Civil Police will be responsible for urban and rural policing to maintain order and guarantee public security and peace, as well as to take part in criminal investigations on the basis of strict respect for the law and for human rights.

18.       Meanwhile, articles 211 and 212 of the Constitution provide that the Armed Forces, a permanent institution serving the nation, are obedient, professional, non-political and non‑deliberative and that their task is to defend the sovereignty of the State and territorial integrity.  In exceptional circumstances, the President of the Republic may use the Armed Forces to keep the peace within the country. 

19.       It should be noted that article 216 of the Constitution establishes military courts to try purely military crimes and offences, i.e. those relating exclusively to legal matters of a strictly military nature. 

Judiciary

20.       The judiciary is the branch in which the Constitution has vested the exclusive power to adjudicate and to execute judicial decisions in constitutional, civil, criminal, commercial, labour, agrarian and administrative matters; it is governed by an Organization Act that determines how it operates; it is composed of the Supreme Court of Justice, the courts of second instance and the other courts that lay down the law.

21.       The Supreme Court of Justice consists of 15 judges, one of whom is the President.  The latter is also the President of the judiciary and of the Constitutional Division and is appointed by the Legislative Assembly.  The Court has four divisions, called the Constitutional, Civil, Criminal and Administrative Disputes Divisions.

22.       The courts of second instance, which are courts of appeal, consist of two judges; the courts of first instance and the courts of the justices of the peace are single-judge courts.  All these judges are appointed by the Supreme Court of Justice from a shortlist of three candidates put forward by the National Council of the Judiciary.

23.       All members of the judiciary are independent and subject exclusively to the Constitution and the law; in connection with the power to administer justice, they are nevertheless authorized by the Constitution, in the cases in which they are called upon to adjudicate, to declare inapplicable any law or measure taken by another branch of the Government that is in breach of constitutional provisions.

24.       The Judiciary Organization Act of 12 June 1984 lays down the organization of the courts and determines the functions of the President of the Supreme Court of Justice and its divisions, of the courts of second instance and of the lower courts, as well as the duties of the other judicial officials who do not exercise jurisdiction, such as chiefs of section, registrars, chief clerks, legal assistants and so on.  The Act also defines the actual area covered by each court and its jurisdiction.

National Council of the Judiciary

25.       One of the new institutions created as a result of the signing of the Peace Agreements in 1992 was the National Council of the Judiciary, which is an independent institution of the Supreme Court of Justice responsible for proposing candidates for posts as judges of the Supreme Court, the courts of appeal and the courts of first instance and as justices of the peace. 

26.       The National Council of the Judiciary is also responsible for organizing and operating the Judicial Service Training College, the purpose of which is to improve the professional training of judges and other judicial officials.  It provides theoretical and practical training for the judiciary, for judicial staff and for the Department of Public Prosecutions and carries out other investigative tasks in order to identify shortcomings and irregularities in the system for the administration of justice, together with their causes and possible solutions.  It develops refresher and in-service training courses for members of the judiciary.

Department of Public Prosecutions

27.       The Department of Public Prosecutions is a State body composed of the offices of the Attorney-General of the Republic, the Prosecutor-General of the Republic and the Procurator for the Protection of Human Rights, as well as of other institutions determined by law.

28.       The duties of the Attorney-General of the Republic include defending the interests of the State and society, conducting criminal investigations in cooperation with the National Civil Police and bringing legal actions, either on his own initiative or on application by a party, in defence of the rule of law.[1]

29.       The duties of the Prosecutor-General of the Republic include defending the family and individuals and the interests of minors and others deemed legally incompetent, providing legal assistance to individuals with scant economic resources and providing them with legal representation to defend their freedom and labour rights.[2]

30.       The duties of the Procurator for the Protection of Human Rights include ensuring the observance of human rights, investigating, either on his own initiative or on the basis of complaints received, cases of human rights violations, instituting judicial or administrative proceedings for the protection of human rights, monitoring the situation of persons deprived of their freedom and supervising the conduct of the public administration towards individuals.[3]

31.       According to article 144 of the Constitution of the Republic:  “The international treaties concluded by El Salvador with other States or international organizations, shall constitute the laws of the Republic once they have entered into force, in conformity with the provisions of the treaties in question and of this Constitution.  The law may not change or derogate from that which has been agreed in a treaty in force for El Salvador.  In the event of a conflict between the treaty and the law, the treaty shall take precedence.”  This provision of the Constitution contains a rule for resolving conflicts of laws:  first, subsidiary law may not change or derogate from that with has been agreed in a treaty and, secondly, in the event of a conflict between a treaty and a law, the treaty takes precedence.

32.       With regard to the United Nations, El Salvador is a party to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Optional Protocol to the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the International Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of All Forms of Discrimination against Women and the Convention on the Rights of the Child, among others. 

33.       In the American regional context, El Salvador is a party to the American Declaration of the Rights and Duties of Man, the American Convention on Human Rights, the Inter‑American Convention to Prevent and Punish Torture and the Inter‑American Convention on the Prevention, Punishment and Eradication of Violence against Women.

34.       With regard to mechanisms for the international protection of human rights, El Salvador has ratified the Optional Protocol to the International Covenant on Civil and Political Rights, which establishes a procedure under which communications from individuals can be brought before the Human Rights Committee.

35.       In the inter‑American context, El Salvador has expressly recognized the competence of the Inter‑American Court of Human Rights to consider complaints by individuals of violations of the rights contained in the American Convention on Human Rights.

36.       These international mechanisms are applicable once all domestic legal remedies have been exhausted, thus providing an additional remedy for anyone in the country whose rights have been violated.

37.       The information on articles 2 and 4 submitted in this report gives further details of the domestic legislation El Salvador has adopted to give effect to the Convention against Torture.

38.       The Convention against Torture became part of domestic law in El Salvador on 17 June 1996, when it was ratified by the Legislative Assembly, in accordance with article 144 of the Constitution of the Republic.  The Convention, like any other international treaty ratified by El Salvador, is now law in the Republic, and this means that State officials must apply its provisions directly without any need for a legislative or administrative act.

39.       Below we list some of the agencies which are involved in one way or another in the implementation of the Convention, although we will deal with them all in greater detail in the part of this report concerning article 2:

(a)        The Office of the Prosecutor‑General of the Republic, which, in accordance with its constitutional powers, provides free legal assistance through the management unit of the Office of the Public Defender to anyone accused of a crime who requests its services;

(b)        The Office of the Attorney-General of the Republic, which is responsible for initiating and exercising the public right of action;

(c)        The Ministry of Justice, which is responsible for the introduction, enforcement and drafting of laws;

(d)        The judiciary, which is responsible for ensuring the administration of justice, as well as the enforcement of sentences;

(e)        The National Civil Police, which is responsible for the investigation, under the operational control of the Attorney-General of the Republic, of all kinds of punishable acts, as provided for in article 193, paragraphs 3 and 4, of the Constitution;

(f)         The Office of the Inspector‑General of the National Civil Police, another supervisory body, whose mandate is to supervise and monitor the operational performance and conduct of the police in respect of human rights;

(g)        The Office of the Procurator for the Protection of Human Rights (PDDH), which is a quasi‑jurisdictional agency that determines whether employees of the State have acted illegally.  It does this by means of decisions that are of a non‑binding nature.  In cases which have been duly investigated from the start of the court proceedings, as stipulated in domestic legislation, PDDH is supported by the Office of the Attorney-General of the Republic.  Since it was created in 1992, PDDH has been the critical conscience of the State.  Its constitutional mandate is to ensure that the National Civil Police acts within the law and guarantees the human rights of citizens.  PDDH also has the authority to hear complaints from citizens concerning various acts or conduct that violate their human rights.  Similarly, PDDH backs up and supports the National Civil Police by, among other things, making sure that the police act in a lawful way and by investigating violations reported by citizens.

40.       Any person may bring habeas corpus proceedings for violations of the right of detained persons to liberty and physical, mental and moral integrity; amparo proceedings for violations of any of the rights recognized in the Constitution; and proceedings based on the unconstitutionality of laws, international treaties, decrees and regulations that are contrary to constitutional provisions.

41.       The Constitution contains many references to the victim and the victim's right to redress and compensation.  Compensation for moral damage is thus provided for by law.[4]  Delaying the course of justice is also a ground for compensation.[5]

42.       Likewise, article 245 of the Constitution stipulates:  “Public officials shall be responsible personally, and the State subsidiarily, for the rights guaranteed in this Constitution.”  Similar provisions are found in various international human rights instruments, including article 9, paragraph 5, of the International Covenant on Civil and Political Rights and article 10 of the American Convention on Human Rights.

43.       Although these provisions can be invoked, they contain no specific reference to the victim of an act of torture, and so we have to turn to Salvadoran criminal law.  Article 16 of the Penal Code stipulates that:  “Any person who is criminally responsible for a crime or offence is also liable for it under civil law if the act gives rise to loss or injury of a moral or a material nature.”  The loss or injury resulting from the crime is the basis for civil liability, so that the content of the “compensatory action” consists mainly of what is stipulated in article 115, which reads:  “The civil consequences of the crime, which shall be stated when the sentence is handed down, include:  the restitution of the property obtained as a result of the commission of the punishable act or, failing that, payment of its value; compensation or, failing that, payment of its value; reparation for the loss or injury caused; legal costs.”

44.       The property in question should be returned whenever possible, with a payment for wear and tear or damage, as decided by the judge in the case.  This holds even when the property is in the possession of a third party who has acquired it legally, without prejudice to that party's own right to take action against the person concerned and, if that is done, the right to be compensated under civil law by the person who committed the crime or offence.

45.       Compensation for loss or injury is made following an evaluation by the judge or court of the amount of damage caused, bearing in mind the value of the property and how much it is worth to the injured person.  The compensation covers not only the loss or injury suffered by that person, but also by his relatives or a third party.  The amount will be determined on the basis of the extent of the damage and the needs of the victim, depending on his age, circumstances and ability to work, as well as the gain resulting from the commission of the crime.

46.       It should be noted that the above-mentioned article does not refer, as a civil consequence of the crime, to the rehabilitation of the victim as part of fair and adequate compensation.

47.       Another aspect to consider is the legal means to be used to make the civil action truly effective.

48.       The system mostly followed in Salvadoran criminal cases is that of the inseparability or compulsory linkage of the criminal and civil proceedings, although with a positivist element that justifies encroaching on the interests and wishes of the injured party by requiring that the two types of action should be brought jointly, as a single action by the body making the application on behalf of the State.[6]  As a general rule, it is understood that the official body responsible for bringing a civil action in El Salvador is the Department of Public Prosecutions, through the Attorney-General of the Republic, who must bring such action in all cases of crimes where there is a public right of action.

49.       Broadly speaking, there are some programmes for the protection of the victims of family violence or sexual abuse and of ill-treated or abused minors, but these are separate programmes applicable to specific groups in very particular cases and there is no national policy for dealing with the victims of crime.  In that respect, we can say that our legislation has not yet evolved far enough to cover the rehabilitation of the victims of crime in general and the victims of torture or other cruel, inhuman or degrading treatment or punishment in particular.

50.       As the Committee is aware, El Salvador was unfortunately in the grips of a civil war for 12 years, during which the violation of the principles embodied in the Convention against Torture were part of the culture of violence and lack of tolerance towards political opponents.

51.       Today, it may be said that the number of complaints is lower than it has been during the past decade, although some isolated cases remain.  PDDH reports show that acts of torture usually involve auxiliary law enforcement agencies, namely, the National Civil Police and local police forces, as well as detention and rehabilitation centres.

52.       In the cases reported by PDDH, those responsible have been tried in accordance with the legislation in force.  Moreover, the authorities responsible for public security have cooperated with local governments and the Ministry of Justice in investigating the acts in accordance with the outcome of the investigations carried out by the PDDH itself.

53.       With regard to factors that may affect the implementation of the Convention, we note that human rights monitoring bodies, such as PDDH, the Office of the Inspector-General of the National Civil Police and the National Public Security Academy, have to be strengthened and given greater support so that, through the careful allocation and use of funds, the obstacles to the full implementation of the Convention may be overcome.

II. ANALYSIS OF ARTICLES

Article 2

Definition of torture within the framework of the Constitution

54.       Under Salvadoran law, torture is prohibited by the Constitution.  Although the Constitution does not contain a specific definition of torture or other cruel, inhuman or degrading treatment or punishment, an analysis of its provisions shows that it does cover such acts as defined in the Convention itself and prohibits and penalizes them.

55.       Articles 2, 12 and 27 of the Constitution confirm the right to physical and moral integrity; provide that an individual may testify in legal proceedings only of his own free will; prohibit imprisonment for debt, life imprisonment and any form of ill-treatment; condemn the use of any type of torture and any violation of the physical or moral integrity of the individual; and not only prescribe punishment for the perpetrators of such acts, but make it clear that any evidence so obtained has no value whatever.  The Constitution stipulates that agents of the State are prohibited from committing such acts, as are private individuals.

56.       On 10 June 1996, the Constitution was amended to broaden the scope of the constitutional procedure of habeas corpus.[7]  Article 11, paragraph 2, incorporates this amendment and states:  “An individual shall have the right to habeas corpus when any person or authority unlawfully or arbitrarily restricts his freedom.  Habeas corpus shall also be available when any authority violates the dignity or the physical, mental or moral integrity of persons in detention”.  The last part of this article provides for protective habeas corpus for the prevention of torture or improper treatment of detainees.  It may also be used to prevent arbitrary transfers of detainees.

57.       Articles 40 and 57 of the Constitutional Procedures Act also refer in a way to this type of habeas corpus.

58.       Under Salvadoran law, habeas corpus has been regarded as the individual's primary safeguard;[8] it has a long constitutional tradition which has, unfortunately, largely been only historical and theoretical.  There have nevertheless been instances of sentences in national case law which are worth mentioning because they prove that protective habeas corpus is applicable in El Salvador (see annex 1).

International instruments

59.       El Salvador is considering the possibility of making the treaties it has ratified part of the legislation in force.  Effect is thus given to the binding provisions of these instruments and individuals have an opportunity to claim the rights they guarantee in ordinary judicial proceedings.

60.       The Constitution does not rank legal provisions (treaties and laws), but offers possibilities for settling conflicts between them.  According to article 144 of the Constitution, a subsidiary law cannot amend or derogate from the provisions of a treaty and, in the event of a conflict between the treaty and the law, the treaty takes precedence. 

61.       A set of rights and guarantees of the integrity of the individual are contained in various international instruments, which form part of internal law and are binding.  They include:

The Universal Declaration of Human Rights;

The Inter-American Convention to Prevent and Punish Torture;

The International Covenant on Civil and Political Rights;

The International Covenant on Economic, Social and Cultural Rights;

The International Convention on the Elimination of All Forms of Racial Discrimination;

The Convention on the Rights of the Child;

The American Convention on Human Rights;

The Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women;

The Code of Conduct for Law Enforcement Officials;

The American Declaration of the Rights and Duties of Man.

San José Agreement on Human Rights

62.       It is very important to mention that the San José Agreement on Human Rights was signed by the Government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional on 26 July 1990.  It is the first substantive human rights agreement in the context of the peace process in El Salvador; the parties committed themselves to ensuring compliance with and guarantees of human rights, with particular reference to preventing acts and practices harmful to the life, integrity, security and freedom of individuals and to eliminating all practices involving disappearances, kidnappings, torture and other cruel, inhuman or degrading treatment or punishment.

1973 Penal Code

63.       Criminal legislation in the State of El Salvador has undergone very considerable changes to bring it into line with the international treaties and conventions signed and ratified by the State of El Salvador.  Until April 1998, El Salvador applied the Penal Code, which was adopted in March 1973 and which provided for crimes and offences making no specific reference to torture or other cruel, inhuman or degrading treatment or punishment.  This meant that there were gaps in the law in relation to full protection against torture.  No penalty was enforced for violating a provision of the Constitution and no aggravating circumstance was applicable in the case of injuries or other torture-related offences committed by or at the request of public officials.

64.       Despite this limitation, the Code, which still applies to offences committed prior to the entry into force of the new Code, classifies as offences cases in which physical or moral damage is caused by any person (including public officials) and in which the offender must be punished.  All such acts come within the definition of torture, in that they may have been committed by a public official and caused the victim moral or physical harm.  The disadvantage remains, however, that the definition as a whole does not individually identify the offence, so that some of the aggravating circumstances which should apply are not covered.

65.       Although the earlier Penal Code included a set of articles which contained some of the features of the definition of torture, such as those set out in articles 170 to 176 on crimes against life and physical integrity, article 222 on abuses against prisoners, article 223 on offences of coercion and article 224 on simple threats, the problem was that they could not in themselves constitute torture as long as the offences which made up the crime of torture were not all liable to punishment and the definition as a whole was not covered.

1998 Penal Code

66.       Torture is characterized as a crime in the current Penal Code, which has been in force since April 1998, and it is defined as follows:

Article 297:  “Any public official or employee who, in the performance of his functions, subjects another individual to physical or mental torture or who has the power to prevent it, but does not do so shall be liable to three to six years’ imprisonment and shall be disqualified from exercising his functions or holding his post during that time”.

The Penal Code thus gives effect to the provisions of the Convention, and in particular penalizes any public official who allows or commits acts of torture in the exercise of his functions.  This is a broad definition, since it covers all types of State officials and agents, either because they commit the act themselves or because they allow someone else to do so.  It may also be noted that the definition covers any type of harm to the victim, whether physical or moral.

67.       The definition of the crime of torture also gives effect to articles 2 and 244 of the Constitution, since it provides for a crime for which anyone who violates an individual's fundamental right to physical and moral integrity is specifically punishable and should be liable to an even harsher penalty for violating a constitutional principle.

68.       In accordance with the commitments adopted by El Salvador, some of the legislative measures to prevent cases of torture are to be found in the following articles of the Penal Code: torture, article 297; injuries, article 134; serious injuries, article 143; very serious injuries, article 144; deprivation of liberty, article 148; arbitrary acts, article 320; coercion, article 153; threats, article 154.

1973 Code of Criminal Procedure

69.       Like the Penal Code, the Code of Criminal Procedure was amended.  However, the 1973 legislation is still applicable to offences committed before the new Code entered into force in April 1998.

70.       The rights of detainees were violated in the 1973 Code of Criminal Procedure and, in some cases, as in article 496, an extrajudicial confession was admitted as valid evidence provided that it was confirmed by two witnesses.  In such cases, it was common practice for the confession to be made without the defence lawyer being present and the witnesses were the police officers themselves.  With this type of confession, there were occasions when no other evidence was submitted and the police confirmed the “confession” of the accused, thus giving it probative value.

1998 Code of Criminal Procedure

71.       A breakthrough in the new 1998 Code of Criminal Procedure is that it safeguards the rights of the accused and thus provides a means of eliminating impunity in proceedings, particularly in respect of evidence, whose legality it guarantees.[9]  This prevents evidence from being submitted unlawfully during proceedings, contrary to constitutional principles and the international covenants and agreements in force in the country.[10]

1998 Prisons Act

72.       With regard to prisons, amendments were also made to the Prisons Act, which is based on the United Nations Standard Minimum Rules for the Treatment of Prisoners, in order to put an end to violations of the human rights of prisoners.[11]  Prisoners' rights are covered by article 10 of the Prisons Act and humane treatment and equality by article 5.

73.       In April 1998, the new Prisons Act entered into force with innovations, such as the establishment of prisoners' rights, including being treated with dignity and respect.  It also established the obligation of the Director-General of Prisons to submit a list of the persons being held in all prisons to the Office of the Procurator for the Protection of Human Rights each month or whenever requested to do so, while prison inspection judges are required to conduct periodic reviews of the enforcement of security measures and sentences.

74.       There has also been a significant change in the application of disciplinary penalties to prisoners.[12]  According to article 129 of the Prisons Act, visits may be suspended for up to eight days, except those by lawyers and notaries; solitary confinement is reduced to eight days instead of being indefinite; it may be imposed only at weekends for up to four weekends in a row; and deprivation or limitation of leisure activities is restricted to eight days.

75.       The prohibition on receiving food from visitors and on extra unpaid labour has also been done away with.  Disciplinary measures may be appealed with suspensive effect before the prison inspection judge, who is responsible for the enforcement of sentences.  Consideration is being given to a review of the application of repeated penalties.  All of this has helped eliminate abuses by prison supervisory staff.

National Civil Police Organization Act

76.       The National Civil Police Organization Act was promulgated by Legislative Decree No. 269 of 25 June 1992 and published in Diario Oficial No. 144, volume 316, of 10 August 1992.  It is based on the United Nations Code of Conduct for Law Enforcement Officials and, in accordance with article 159, paragraph 2, of the Constitution, provides that public security is the responsibility of the National Civil Police, based on the law and full respect for human rights.

77.       Article 25, paragraph 4, of the National Civil Police Organization Act clearly states that no member of the National Civil Police may incite or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment or invoke the order of a superior or special circumstances, such as a state of war or a threat to national security, internal instability, etc., to justify torture and other forms of cruel, inhuman or degrading treatment or punishment.  Similarly, the National Civil Police must comply with and is bound by article 297 of the Penal Code.

Act on the Office of the Procurator for the Protection of Human Rights (PDDH)

78.       In its procedure for the definition of human rights violations, PDDH refers to torture as an act which violates the right to physical integrity.  Five operational definitions of such violations have been included in the characterization of acts which violate human rights under article 2 of the Act on the Office of the Procurator for the Protection of Human Rights (annex 2), in force in El Salvador in accordance with Legislative Decree No. 183 of 20 February 1992, published in the Diario Oficial, volume 314, of 6 March 1992.

79.       As part of its efforts to strengthen PDDH, the United Nations, through the United Nations Development Programme (UNDP), provided funding for the implementation of the project entitled “Strengthening the observation, monitoring and investigation techniques of the Office of the Procurator for the Protection of Human Rights”, one result of which is the investigation procedure establishing the characterization of individual human rights protected by PDDH.  A handbook for characterizing human rights violations was prepared in order to support this procedure (see annex 3); it defines violations of each right and gives a summary of the national and international legislation in force to safeguard each of the rights described.

80.       The PDDH characterization includes torture as a violation, but also adds other less serious violations which are used to assess the conduct of State officials.  In its investigation procedures, PDDH has also included all the international treaties ratified by El Salvador and, accordingly, all the legislation now in force.

Juvenile Offenders Act

81.       The rights of juvenile offenders are also protected by the Juvenile Offenders Act (annex 14).  In accordance with article 5, juveniles covered by the Act are entitled to the rights and guarantees which are recognized in the Constitution, treaties, conventions, covenants and other international agreements signed and ratified by El Salvador and in the other laws applicable to persons over 18 years of age who are accused of a criminal offence or of participation in such an offence and which include:

            The right to be treated with full respect for the dignity of the individual, including the right to protection of physical integrity;

            The right to respect for their privacy; no information which may directly or indirectly enable them to be identified may thus be made public;

            The right to a fair and public hearing, without delay, in a juvenile court, on the basis of responsibility for the act committed;

            The right not to be unlawfully deprived of their liberty, or restricted in the exercise of their rights beyond the limits of the purpose, scope and content of each of the measures imposed on them, in accordance with the present Act;

            The right to compliance with the rules of due process, especially the presumption of innocence and the right to be assisted by counsel from the start of the investigation;

            To be informed of the reasons for their arrest and the authority responsible and to request the presence of their parents, guardians or persons in charge of them.

Action by agencies

Violation	1995	1996	1997	1998*	Total
Torture		5			5
Cruel, inhuman or degrading treatment or punishment		2			2
Ill treatment		47	50	17	114
Disproportionate use of force		18	4	3	25
Inhuman treatment of detainees		6	1	1	8
Right to physical integrity	2	41	22	10	75
Total	2	119	77	31	229

            *  Up to 30 November 1998 inclusive.

89.       This compilation of data shows that the crime of torture has a very low incidence rate, but, because of technical problems in the data registration system, there can be no absolute guarantee that the information on, for example, the right to physical integrity does not include unreported cases of torture.

90.       It may be seen that, when cases of torture do occur, the agencies apply the legislation in force to bring those responsible to trial, as does the Office Procurator for the Protection of Human Rights.

Office of the Prosecutor-General of the Republic:  Management Unit of the Office of the Public Defender

91.       The Office of the Prosecutor-General of the Republic has adopted the approach taken in the Convention and uses it to determine that violations have taken place.  It also uses the above‑mentioned handbook for the characterization of human rights violations prepared by the Office of the Procurator for the Protection of Human Rights.

92.       In accordance with article 194 of the Constitution, the Office of the Prosecutor-General of the Republic provides free legal assistance to any accused person who requests its services.  This assistance is provided through the Management Unit of the Office of the Public Defender, which is itself divided into two main parts:

            (a)        The Office of the Public Defender for Adults, providing legal assistance to any person in the following circumstances:

                                       (i)           Persons in the initial or administrative stage of detention, by taking part in monitoring the initial phase of the investigation and providing technical advice and protection;

                                      (ii)           Persons who have been arrested by court order or whose freedom has been restricted by taking an alternative measure; in this case, assistance is provided through participation in the pre-trial phase of the investigation by contributing exculpatory evidence required to defend the person during the trial and monitoring the conditions in which precautionary measures are enforced;

                                    (iii)           Persons serving their sentence, by defending their rights, taking part in review hearings and filing complaints or raising interlocutory matters where a prisoner's rights have been violated;

            (b)        Public Defender for Juvenile Offenders:  as for adults, legal assistance is provided from the time a charge has been brought until the stage of the enforcement of the measure imposed.  Progress has been made in that assistance is being provided by a specialized group of defence lawyers who are familiar with all juvenile legislation.  Generally speaking, the Office of the Public Defender tries to guarantee respect for the legal framework in which it operates in order fully to implement the constitutional provisions applicable to all individuals.

National Public Security Academy

93.       When the National Public Security Academy was founded in 1992, its approach to human rights was that which was proposed by the Spanish Police and which was very useful in the training of students at the basic, managerial and higher levels.  The approach focuses mainly on the crime aspect, not necessarily on international human rights law.

94.       Since 1996, with the participation of other organizations, including  Radda Barnen, the Latin American Institute for the Prevention of Crime and the Treatment of Offenders (ILANUD) and the Office of the Procurator for the Protection of Human Rights, teachers of humanities subjects have begun to adopt a more appropriate approach to human rights, its doctrine and international law.  This approach allows for new contributions, especially with regard to the right to physical integrity, in which the topic of torture has been included to allow discussions with police officers about their responsibility when it comes to interrogating a detainee or dealing with any person under any type of arrest.  Various harmful and prohibited torture practices are also discussed, as are the symptoms that a person may have when he has been subjected to some form of torture.

95.       This new approach is taught to students in the basic course described in annex 4 of the Academy's report, which provides information on lesson plans, the general aspects of the subject and a description of the course (level, length, etc.).

National Civil Police

96.       As far as administrative matters are concerned, the National Civil Police (PNC) has disciplinary regulations to punish all forms of ill-treatment, including torture.  In title III (Misdemeanours), chapter 1 (Serious Misdemeanours), article 7, paragraph 4, states that “Any person who abuses his powers and inflicts inhuman, degrading, discriminatory or humiliating treatment on his colleagues or subordinates or on persons in his custody shall be punished accordingly”.  In institutional matters, PNC has its own rules, which provide for the same penalties as the Convention against Torture.

Office of the Inspector-General of the National Civil Police

97.       The Office of the Procurator for the Protection of Human Rights is the main governmental body responsible for monitoring human rights; the National Civil Police is a special case, however, and has an Inspector-General whose mandate is to supervise and monitor police operations and management and matters relating to human rights and police conduct in general.

98.       The Inspector-General of the National Civil Police is directly responsible to the Minister of Public Security and his appointment is subject to approval by the Procurator for the Protection of Human Rights and the Attorney-General of the Republic; he has delegates in the country's 14 departments who represent him in his high-level inspection duties.

99.       The Office of the Inspector-General carries out various activities in the exercise of its functions, including the preparation of the Inspector-General's reports for the Office of the Procurator for the Protection of Human Rights, opinion polls on police activity and annual assessments of the knowledge of members of the National Civil Police of human rights issues.[14] The reports of the Office of the Inspector-General to the Office of the Procurator are submitted twice yearly, and the assessment on police knowledge of human rights annually (annex 5).

Ministry of Justice

100.     In 1997, the Ministry of Justice began modernizing the prison administration with a view to preventing violations; the authority concentrated in the hands of heads of prisons was transferred to the Office of the Director‑General of Prisons, supported and advised by the Technical Department, the Safety and Custody Department and the Prison Criminology Council, with a predominantly civilian system of services.  All professional, administrative and security staff have been trained to acquire the necessary skills to supervise the reintegration of prisoners into society, as provided in articles 81, 82, 83 and 84, paragraph 2, of the Prisons Act.

101.     The Prisons Act established the Disciplinary Board; this means that disciplinary measures are no longer taken at the discretion of the prison governor, but are imposed by a panel of officials (Prisons Act, art. 131).

Ministry of National Defence

102.     With regard to military jurisdiction, the Code of Military Justice contains all the provisions adopted to prevent military personnel, acting on superior orders, from arbitrarily abusing or going beyond their authority to harm or ill-treat a subordinate.  Administratively, supervision is carried out by unit commanders, the armed forces Inspector‑General and a military assessor in the event of an inquiry.

103.     In order to protect prisoners of war, article 6 chapter I (General), Book One, of the Code of Military Justice defines the aggravating circumstances of criminal offences when military offences are committed against prisoners of war.  In article 7, an abuse of authority by a superior officer against a subordinate is regarded as a mitigating factor of insubordination on the part of the latter.

104.     Article 68, chapter III (Crimes under international law, devastation, plunder and sabotage), provides for 15 to 20 years’ imprisonment for military personnel who commit acts of violence against individuals.  The same sentence is imposed in time of war on military personnel who commit such acts as:  forcing prisoners of war to fight against their own armed forces, beating them, insulting them or failing to provide necessary food and medicine when in a position to do so.

105.     Article 70 provides for a sentence of 5 to 10 years’ imprisonment for military personnel who strip a wounded person or a prisoner of war of his clothes or other personal possessions, increased to 15 years’ imprisonment if, in so doing, they cause further injuries which make his condition worse.

106.     An officer who fails to use every means at his disposal to prevent his subordinates from committing the acts described in this chapter will also be held responsible for such acts and may be sentenced to 5 to 10 years’ imprisonment.

107.     Article 74 stipulates a sentence of 5 to 10 years’ imprisonment for military personnel who subject members of the armed forces to ill-treatment for reprisals against them.

108.     It may thus be noted that the Code of Military Justice covers possible acts of torture which may be committed under strictly military jurisdiction and provides for harsher penalties.

109.     In coordination with the legal advisory service of the Ministry of Justice, the Ministry's Directorate of Legal Affairs Department has prepared a draft reform of the Code, which incorporates the principles embodied in the Convention against Torture.

110.     As to specific cases of torture, the Ministry of Defence has stated that it does not have any specifically involving acts of torture.

136.      Among measures taken under Salvadoran legislation to give effect to the Covenant in the areas concerned, article 39 of the Penal Code provides the following definitions of officials, public and municipal employees, public authorities and law enforcement officers: