El Salvador Table of Contents
El Salvador's penal and procedural codes are derived from the established precedents of nineteenth-century Spanish jurisprudence and therefore follow the standard Latin American pattern. Although adopted early in the twentieth century, both documents have been revised and updated periodically since then. Changes in the Penal Code of 1904 have been enacted through supplementary legislation in the form of laws or decrees. El Salvador published a revised Penal Code in 1980. The code recognizes three distinct levels of offenses: felonies (delitos), misdemeanors (faltas), and infractions (contravenciones). The major categories of offenses distinguish among crimes against the state, crimes against persons or property, and threats to public order or safety. The Penal Code contains statutes prohibiting crimes against the state (Articles 373 to 411), subversion (Articles 376 to 380), treason (Article 381), terrorism (Articles 400, 402, and 403), and other actions against the stability of the state. Crimes against persons or property cover the more conventional types of lawbreaking, including such offenses as homicide, assault, robbery, and fraud. The code takes into account possible extenuations and mitigating factors, such as self-defense. Ignorance of the law is not considered an excuse, however, and an unsuccessful attempted crime is punishable as though perpetrated. Provisions allow for increased penalties in cases considered aggravated or grossly malicious.
The code carefully defines penalties and their range in considerable detail. Recognized punishments include fines, imprisonment, banishment, loss of civil rights, and death. Article 27 of the Constitution, however, allows the death penalty only in cases established by military laws during a state of international war. The code also prohibits imprisonment for debt, perpetual and dishonorable sentences, banishment, and all kinds of mental or physical torment. Persons arrested for crimes against the state have the same legal protection as common criminals. Holding views opposed to the government is not justification for arrest if the suspect does not advocate violence. Thus, the courts have held that membership in a front organization controlled by the insurgents is not by itself sufficient reason to hold an arrestee, although membership in a guerrilla group is.
In the Salvadoran system, the courts become involved in the case almost immediately after the crime is committed because the judge oversees the investigation. If the police conduct a preliminary investigation, they must submit the result to the courts within seventy-two hours. A justice of the peace handles minor crimes, but must forward major cases to a judge in a court of first instance within fifteen days. In cases involving death, a judge--usually a justice of the peace--goes to the scene of the crime and "recognizes" the death judicially; a medical examiner determines the cause of death. Arrest regulations require that the security forces register detainees and have them examined by a doctor or nurse on entry into police facilities. In insurgencyrelated cases, the authorities must promptly notify the family of the detainee or one of the human rights offices of the arrest. Mistreatment of prisoners is prohibited. The judge has seventytwo hours to determine if the evidence shows sufficient cause to hold the suspect and, if so, orders pretrial detention. After being turned over to the courts within seventy-two hours, an arrestee has the right to have a defense attorney present.
The judge then begins the investigation (instruccion) phase, actually conducting an in-depth investigation into the crime. The judge lists all of the elements of proof needed in order to determine the guilt or innocence of the accused, then presides over each step of the investigation, issuing orders for witnesses to come to testify, visiting the scene of the crime, and ordering the police to perform forensic tests. While the judge is conducting the investigation, suspects accused of major crimes often remain in pretrial confinement, even though the investigation phase may take years to complete.
Once the judge is satisfied that all the available information has been collected, the case may be dismissed or moved to the plenary phase of the trial, in which the judge, the defense, and the prosecution prepare in writing their explanations of what the evidence shows. In murder cases, the final step of the plenary phase is the jury stage, in which the court clerk reads to a panel of five jurors a summary of the evidence and the statements by the judge, defense, and prosecution. Extensive procedural safeguards protecting the rights of the defendant and rigid rules of evidence under the civilian Penal Code severely limit the capabilities of the prosecution. This is one reason why only about 15 percent of jury trials resulted in convictions in the mid-1980s.
The accused has the right to file an amparo petition (a claim that a constitutional right has been violated) with the Supreme Court at any time during the process, as well as one habeas corpus petition per phase of the process, starting from the time the accused becomes aware that the judge may issue a warrant for his or her arrest. When any petition is filed with the Supreme Court, all work on the case by the judge in the court of first instance ceases, and the entire case record is sent to the Supreme Court. The defense may also file appeals to the chambers of second instance at certain times in the process, and this too causes the judge in the court of first instance to cease work on the case. Finally, a type of appeal known as a cassation may be filed with the Supreme Court, also causing a halt in work on the case. Some time limits set down in the laws for consideration of these appeals have been followed rigorously, whereas others were ignored in the late 1980s.
Data as of November 1988
El Salvador Table of Contents