Opinion; Subjects: EL SALVADOR, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.20-03385 (E) 300420 190620
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-sixth session, 18–22 November 2019
Opinion No. 68/2019 concerning Sara del Rosario Rogel García, Berta
Margarita Arana Hernández and Evelyn Beatriz Hernández Cruz (El
Salvador)
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution
60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work (A/HRC/36/38), on 9 August 2019 the
Working Group transmitted to the Government of El Salvador a communication concerning
Sara del Rosario Rogel García, Berta Margarita Arana Hernández and Evelyn Beatriz
Hernández Cruz. The Government submitted a late response, on 5 November 2019. The
State is a party to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following
cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or
her sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,
25, 26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating
to the right to a fair trial, established in the Universal Declaration of Human Rights and in
the relevant international instruments accepted by the States concerned, is of such gravity
as to give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or
remedy (category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation,
United Nations
A/HRC/WGAD/2019/68
General Assembly
Distr.: General
4 March 2020
English
Original: Spanish
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disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
Submissions
Communication from the source
4.
Ms. Rogel is Salvadoran, born on 23 October 1991 and a resident of El Calvario,
Santa Cruz Analquito, Cuscatlán. At the time of her arrest, she was a student and was 22
years old.
5.
According to the information received, on 7 October 2012, Ms. Rogel slipped and
had an accident in the laundry room of her house, suffering a severe blow. Her relatives
called for an ambulance to take her to Nuestra Señora de Fátima National Hospital in
Cojutepeque.
6.
On 8 October 2012, the prosecutor’s office received a call from the hospital’s social
work service, reporting that Ms. Rogel had been admitted for a fall and had suffered an
incomplete abortion. In response, an assistant prosecutor went to the hospital and began an
investigation, asking the National Police to arrest Ms. Rogel, on the grounds that she had
committed a crime and was in flagrante delicto. A police officer made the arrest at around 4
p.m. on suspicion of voluntary, self-induced abortion.
7.
The office of the assistant prosecutor instructed the operational division of the
National Civil Police to request a search warrant for the house from the Santa Cruz
Analquito municipal judge. The authorities went to the residence, where they were given
the clothes that Ms. Rogel had been wearing on the day of the obstetric emergency and
were shown where the fetus had allegedly been buried after the abortion. On finding the
body, the forensic doctors concluded that there was no external injury and sent it to a
forensic medicine laboratory for an autopsy. The autopsy established that the cause of death
was head trauma.
8.
On 11 October 2012, the assistant prosecutor requested a formal investigation with
pretrial detention in respect of Ms. Rogel, accusing her of aggravated homicide and arguing
that the crime is serious and she might evade or obstruct justice.
9.
On 11 October 2012, the Santa Cruz Analquito Municipal Court ordered the
detention, considering that there was a likelihood of involvement in the crime. Ms. Rogel
was transferred to the cells of the 911 system of the National Police.
10.
On 12 October 2012, the Municipal Court ordered the launch of the investigation.
The Court stated that, as the crime was serious and punishable by 30 years’ imprisonment,
the defendant might seek to evade prosecution. It also established that it was possible that
Ms. Rogel might “obstruct a specific act of investigation”. On 19 October 2012,
Cojutepeque Court of Investigation No. 1 confirmed the pretrial detention on the same
grounds as those put forward by the Municipal Court.
11.
On 6 December 2012, at a special hearing to review the precautionary measure,
Cojutepeque Court of Investigation No. 1 decided to maintain the detention measure,
considering it “necessary to achieve the aims of the proceedings and ensure that the young
woman stands trial”. On 17 December 2012, the Chamber of the Second Section of the
Central Court denied an appeal against the decision of Court of Investigation No. 1.
12.
On 2 May 2013, at a preliminary hearing, the Court of Investigation No. 1 ordered
the opening of the trial with pretrial detention, determining that the conditions under which
the measure had been imposed had not changed. Ms. Rogel was transferred to the pretrial
detention and sentence enforcement centre in Ilopango.
13.
On 12 September 2013, the Cojutepeque Trial Court sentenced Ms. Rogel to 30
years’ imprisonment for aggravated homicide.
14.
On 6 November 2013, the Chamber of the Second Section of the Central Court
granted a writ of habeas corpus in favour of Ms. Rogel on the grounds that “the rights of
defence and of appeal were infringed by the failure to draw up and give notice of the
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sentence within a reasonable time”. Nevertheless, it ordered the continuation of the
detention.
15.
On 3 February 2014, the Chamber of the Second Section of the Central Court upheld
Ms. Rogel’s conviction and rejected the defence’s arguments. On 19 May 2015, the
Criminal Division of the Supreme Court found an appeal against the sentence of 3 February
2014 to be inadmissible.
16.
According to the source, the legal basis for the detention was article 133 of the
Criminal Code, which covers the crime of voluntary, self-induced abortion; article 323 of
the Code of Criminal Procedure, which governs arrest in flagrante delicto; and articles 128
and 129 of the Criminal Code, which establish the crime of aggravated homicide. The
pretrial detention was based on articles 329, 330 and 334 of the Code of Criminal
Procedure.
17.
On 20 March 2019, Ms. Rogel was transferred to Izalco Prison.
18.
Ms. Arana is of Salvadoran and Guatemalan nationality and was born on 27 March
1993. In September 2013, she was 20 years old, 39 weeks pregnant, with no schooling, and
was employed as a domestic worker. She was living in a remote rural area of San Lorenzo,
Ahuachapán.
19.
On 23 September 2013, at approximately 10.30 p.m., Ms. Arana suffered an
obstetric emergency at home, was experiencing labour pains and bleeding, and had no
medical support. Her family called the emergency number and requested urgent medical
attention.
20.
Police officers went to Ms. Arana’s home, by which time she had already given birth
in an outside toilet located 30 metres from her house, without anyone assisting or being
with her at the time. The officers found that she was seriously ill and unconscious, and that
there was a newborn baby inside the toilet.
21.
The officers reportedly assumed that Ms. Arana had thrown her daughter into the
toilet in an attempt to kill her. On 24 September 2013, she was transferred to Francisco
Menéndez National Hospital and placed under police surveillance for the attempted
aggravated homicide that she was alleged to have committed. Ms. Arana stated that she
could not afford to pay for a lawyer; the State did not appoint one.
22.
On 25 September 2013, the Institute of Forensic Medicine conducted a forensic
examination of the newborn and determined that she had been born out-of-hospital in a
self-assisted delivery.
23.
On 26 September 2013, the prosecutor’s office filed an application for prosecution
against Ms. Arana for attempted aggravated homicide, arguing that she had attempted to
kill her daughter. The San Lorenzo municipal judge decreed that Ms. Arana should be
detained pending inquiries, while she was still receiving care in the hospital for the obstetric
emergency.
24.
On 26 September 2013, at 3.30 p.m., Ms. Arana was brought before the municipal
judge, who informed her that she was being charged with attempted aggravated homicide.
She was told that she would receive legal assistance from a public defender. Ms. Arana
stated that she did not have an identity document.
25.
On 27 September 2013, an initial hearing was held before the San Lorenzo
municipal judge, who ordered a formal investigation with pretrial detention. None of the
prosecution’s evidence demonstrated that Ms. Arana had committed a crime; it proved only
that an obstetric emergency had occurred. Ms. Arana was represented by a different public
defender to the one originally assigned.
26.
Ms. Arana was detained at the National Civil Police station in Apaneca,
Ahuachapán, until 2 October 2013, when she was transferred to the pretrial detention and
sentence enforcement centre in Ilopango.
27.
On 14 January 2014, the prosecutor’s office brought charges. On 3 April 2014, at a
preliminary hearing, the Court of First Instance ordered the continuation of pretrial
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detention. Once again, there was a change in the public defender and Ms. Arana was
represented by a different lawyer.
28.
On 2 July 2014, Ahuachapán Trial Court sentenced Ms. Arana to 15 years’
imprisonment. In the judgment, it was concluded that the accused “carried out a series of
acts whose final aim was to kill her newborn daughter”.
29.
On 9 July 2014, the Court gave notice of the decision, without Ms. Arana or her
defence counsel being present. Consequently, the judgment was not appealed and became
final and enforceable on 24 July 2014.
30.
The source states that Ms. Arana meets the requirements of the 1997 Prisons Act for
entering the trust stage of the execution of her sentence. This would entitle her to leaves of
absence, access to jobs with greater responsibility, an increase in the number of visits by
family and friends, and greater freedom of movement. However, she will not be able to
obtain any prison privileges because she must have an identity document and would need to
process her birth certificate in Guatemala. Ms. Arana was investigated, charged, prosecuted
and convicted without documentation, but will not be able to access even minimal
privileges during her detention.
31.
The legal basis for the detention was, firstly, articles 24, 128 and 129 of the Criminal
Code, which cover the criminal offence of attempted aggravated homicide. Subsequently,
the San Lorenzo municipal judge reportedly ordered the detention pending inquiries under
article 323 of the Code of Criminal Procedure. The pretrial detention was apparently
ordered under article 329 of the Code of Criminal Procedure. Lastly, the sentence was
reportedly handed down on the basis of articles 128 and 129 of the Criminal Code.
32.
On 20 March 2019, Ms. Arana was allegedly transferred to Izalco Prison.
33.
Ms. Hernández is Salvadoran, born on 18 October 1997 and a resident of El Carmen,
Los Vásquez, Cuscatlán. At the time of her arrest, she was a student and was 18 years old.
34.
On 6 April 2016, at approximately 10 a.m., Ms. Hernández, unaware that she was
pregnant, felt severe abdominal pain and went to a latrine, where she gave birth. When she
left the latrine, in a state of serious ill health, her family took her to the emergency
department of the Nuestra Señora de Fátima National Hospital in Cojutepeque.
35.
The source states that a social worker on duty informed the authorities of Ms.
Hernández’s admission, and the head of the Unit for Offences against Minors and Women
requested a forensic doctor to implement the abortion investigation protocol. In her report,
the doctor concluded that Ms. Hernández was displaying signs of pregnancy and confirmed
that the patient had given birth out-of-hospital.
36.
The authorities visited the young woman’s home, where they found a lifeless fetus.
Consequently, the prosecutor’s office and a forensic doctor collected evidence from the
scene and sent the body to a forensic medicine laboratory for an autopsy. Although no one
had witnessed the birth, the police officers presumed the existence of a crime and, at
approximately 6.30 p.m., arrested Ms. Hernández on the premises of Nuestra Señora de
Fátima National Hospital, despite her state of serious ill health, without an arrest warrant
and alleging that she was in flagrante delicto.
37.
The source states that the forensic autopsy of 6 April 2016 revealed that the cause of
death was “undetermined pending histopathological samples”. The conclusion drawn from
that examination was that the cause of death was “aspiration pneumonia”.
38.
On 9 April 2016, the prosecutor’s office requested a formal investigation with
pretrial detention in respect of Ms. Hernández. The assistant prosecutor charged her with
aggravated homicide. The municipal judge ordered her detention on the grounds that “the
procedural conditions of there being a prima facie case and danger in delay” had been met.
The source claims that this was done without considering the facts of the case, by
determining:
The criminal intent with which the defendant acted, firstly by concealing her
pregnancy and then, when she was admitted to hospital, by not reporting it and
instead claiming not to [know] that she was pregnant, since it is not credible and
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even absurd that a student in the third year of her baccalaureate in health care would
not recognize or feel the changes in her body during pregnancy.
39.
According to the information received, the municipal judge asserted at a public
hearing on 12 April 2016 that the defendant “must have known that she was expecting a
baby” and concluded that there was “a latent flight risk”. The judge ordered the transfer of
Ms. Hernández to the facilities of the 911 system of the National Police, where she was
allegedly held in inadequate conditions.
40.
On 20 April 2016, Court of Investigation No. 2, in an appeal judgment, ruled that:
Since aggravated homicide is classified as a serious crime, defendants, faced with a
possible penalty of imprisonment for such a crime, generally try to evade justice ...
in view of the penalty that may be imposed, so the precautionary measure of pretrial
detention becomes necessary and is considered appropriate.
41.
On 25 April 2016, the Chamber of the Second Section of the Central Court upheld
the pretrial detention, finding that:
There is an obvious and natural risk of flight and of obstruction of the proceedings,
since the crime is punishable mby very high minimum and maximum penalties, and
thus, objectively speaking, there is a high risk that the defendant will seek to evade
justice and, consequently, that the investigation will be hindered, among other
factors.
42.
Ms. Hernández was placed in pretrial detention at the pretrial detention and sentence
enforcement centre in Ilopango on 13 May 2016.
43.
On 6 July 2016, Court of Investigation No. 2 rejected a request for a hearing to
review the precautionary measure, arguing that it would be inappropriate owing to “the ban
on granting alternative or substitute measures in place of pretrial detention for this category
of crime”.
44.
On 24 October 2016, the assistant prosecutor charged Ms. Hernández with
aggravated homicide before Court of Investigation No. 2. On 7 March 2017, that Court
ordered the opening of the criminal trial and upheld the pretrial detention on the grounds
that:
The defendant’s conduct amounts to an intentional criminal act, since, on realizing
that she was pregnant, she was obliged to care for and protect the unborn child and
to seek professional help to enable her child to be born in optimal conditions. At no
point did she mention to her mother that she was pregnant. Rather, it is alleged that,
when the time came for her to give birth, she went to the toilet, which was a septic
tank. Despite knowing her condition, she told her mother that all she had was
diarrhoea. Given that pregnancy is a condition of which it is difficult to claim
ignorance, especially for someone with the defendant’s level of education, it is to be
assumed that she intended to murder her own child.
45.
On 5 July 2017, the Cojutepeque Trial Court sentenced Ms. Hernández to 30 years’
imprisonment, finding it impossible that she could have given birth in the latrine and
concluding, therefore, that she had thrown the baby into the septic tank to end its life. The
ruling allegedly overlooked fundamental facts and evidence, and was based:
On the circumstantial, hearsay evidence ... that the accused, after giving birth in the
early hours of the morning of 6 April 2016, threw the baby into the septic tank and
thus committed an act liable to cause the death of this defenceless person.
46.
On 20 December 2018, the First Criminal Chamber of the First Section of the
Central Court overturned the conviction of 5 July 2017, arguing that:
In the first-instance decision, the rules of sound judgment were not observed, since
no account was taken of the rules of common experience. Specifically, the
defendant’s physical, mental, emotional and social states at the time of the delivery
were overlooked.
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47.
On 7 February 2019, the Cojutepeque Trial Court ordered alternative measures in
place of pretrial detention, as:
The time limit for pretrial detention set out in article 8 of the Code of Criminal
Procedure has been reached, and thus it would be illegal to exceed this limit since it
would violate the right to physical freedom and the principle of legal certainty in a
democratic State governed by the rule of law, which is why Ms. Hernández Cruz
cannot remain in pretrial detention, as it would become unconstitutional.
48.
The authorities claim that articles 128 and 129 of the Criminal Code and articles 323
and 329 of the Code of Criminal Procedure were the legal basis for the detention.
Background information
49.
The source indicates that the legislation on abortion in El Salvador is one of the
most restrictive in the world. In 1998, a criminal code establishing its absolute prohibition
came into force and, since 1999, the Constitution has recognized “every human being as a
person from the moment of conception” (art. 1). These changes increased the risks of
maternal mortality and morbidity from unsafe abortions. Between 2005 and 2008, 19,290
clandestine abortions were recorded, of which 27.6 per cent occurred among adolescents. In
addition, it was reported that about 11 per cent of women who undergo a clandestine
abortion die.
50.
The ban on abortion has led to the systematic criminalization of women who suffer
an obstetric emergency, the great majority of whom are living in poverty. The information
received indicates that, between 2000 and 2011, 129 women were prosecuted for abortion
or aggravated homicide.
51.
Common characteristics of the women who have been criminalized include their
age, education level, income and place of origin. A total of 68 per cent were sentenced
when they were between 18 and 25 years old, 22 per cent have a low level of schooling, 82
per cent have little or no income and most come from rural or marginalized urban areas.
52.
In addition, the legislation on abortion has encouraged health-care personnel to
report medical complications during pregnancy or childbirth. Between 2002 and 2010,
57.36 per cent of the recorded reports of abortion came from health-care professionals. The
practice of handcuffing women to hospital beds while they are still receiving medical
treatment has become widespread. This situation is thought to discourage women from
seeking help for their pregnancies.
53.
It is argued that these trials tend to violate international standards: (a) the women
prosecuted are interrogated without their lawyer being present; (b) the Institute of Forensic
Medicine uses discredited methods of collecting evidence; (c) evidence is weighed from a
stereotypical perspective of women’s role in society, according to which maternity and
reproduction is their sole function, taking priority over the preservation of their own life or
health; (d) between 1998 and 2011, there were no criminal courts of second instance.
Although appeals have been possible since the 2011 reform of the Code of Criminal
Procedure, in practice this remedy does not exist, given the low quality of State-appointed
legal representation and the fact that an appeal is heard by the same court that handed down
the conviction; (e) the extraordinary remedies of judicial review, pardon and commutation
of the sentence are neither adequate nor effective for the protection of rights; and (f) the
women prosecuted for suffering an obstetric emergency are deprived of their liberty in
extremely overcrowded and unhealthy conditions characterized by a lack of care.
Legal analysis
Category I
54.
The source alleges that the deprivation of liberty of Ms. Rogel, Ms. Arana and Ms.
Hernández had no legal basis and was contrary to articles 9, 10 and 11 of the Universal
Declaration of Human Rights and article 9 of the Covenant.
55.
Ms. Rogel, Ms. Arana and Ms. Hernández were arrested without a warrant and two
of them were alleged to be in flagrante delicto. The source specifies that a person is in
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flagrante delicto when he or she is caught in the act of committing an allegedly unlawful
act. In this case, the arrests were made in hospital, several hours after an obstetric
emergency. It was through a report filed by hospital staff that a possible unlawful act was
identified. As a result, the concept of being in flagrante delicto does not apply and a warrant
was thus required in order to make an arrest.
56.
The source also argues that the rules applied are incompatible with international law,
asserting that aggravated homicide should not be used to criminalize obstetric emergencies.
It is incompatible with international law as it violates sexual and reproductive health rights.
57.
In addition, national legislation on pretrial detention is incompatible with
international law in that it provides that such detention is appropriate even in cases in which
there is no flight risk or possibility that the proceedings will be hindered. In all cases, the
possibility of adopting less detrimental measures must be considered. It is up to the State to
prove that such detention is proportionate.
58.
The source argues that Ms. Arana did not have access to legal assistance as she was
put in contact with a public defender only at 3.30 p.m. on 26 September 2013. Furthermore,
she was assisted during the initial hearing by a different person. This is contrary to the
United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right
of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court.
Category III
59.
The source claims that the trials violated the rights and guarantees enshrined in
articles 10 and 11 of the Universal Declaration of Human Rights and articles 9 and 14 of
the Covenant.
60.
The source alleges that the authorities disregarded the fact that Ms. Rogel was
admitted to hospital with an incomplete abortion and in a poor state of health, which shows
how defenceless she was. It is claimed that she was treated as guilty, as her pretrial
detention was ordered from the outset and it was determined that she might obstruct justice.
The source alleges that the stigma surrounding abortion in El Salvador owing to its
criminalization led to an assumption of guilt. The burden of proof was no longer on the
prosecution, in violation of the presumption of innocence and principles of criminal law.
61.
The source indicates that the psychosocial report that has been taken as valid
evidence is based on testimonies from people (allegedly neighbours) who are not fully
identified, preventing the defence from disputing the report and verifying the statements
made by those witnesses.
62.
For the source, the judicial authorities involved in Ms. Rogel’s trial violated due
process guarantees and the right to be presumed innocent by convicting her on the basis of
a biased and stigmatizing interpretation of the facts, ignoring evidence that made it
impossible to establish her guilt.
63.
The only proven facts are that Ms. Rogel had a serious obstetric emergency owing to
a heavy fall and was therefore admitted to hospital in a state of serious ill health. However,
the medical staff, the prosecutor’s office and the National Police assumed that she was
guilty from the outset by distrusting her testimony, ordering her detention and determining
that she acted with criminal intent, without considering her version of the events.
64.
In the case of Ms. Arana, the authorities violated her right to be presumed innocent,
since she was deprived of her liberty and convicted in the absence of any evidence that she
had committed a crime. The only established fact is that she suffered an obstetric
emergency and did not receive the timely health care that she required to have a safe
delivery. The police officers, who arrived almost an hour after their support had been
requested, immediately presumed that she had attempted to kill her daughter and that she
was a dangerous person who might obstruct justice.
65.
Furthermore, it is argued that Ms. Arana’s right to a fair trial was not guaranteed,
since, during the criminal proceedings, she was represented by more than four defenders,
each of whom was appointed immediately before a hearing or was not present at the
relevant proceedings. This led to a failure to guarantee her right to effective legal
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assistance, bearing in mind that she lacked the financial means to appoint a defence counsel
of her choice.
66.
Regarding Ms. Hernández’s detention, the source claims that, from the beginning of
the proceedings, the authorities made a biased assessment of the facts, by assuming that she
was guilty of aggravated homicide. The judge interpreted the evidence in the case without
objectivity, concluding that “she concealed her pregnancy and threw the newborn into the
latrine”. By sentencing her to 30 years in prison, based on a biased interpretation of the
facts and omitting evidence that made it impossible to establish her guilt, the authorities
violated due process guarantees and the right to be presumed innocent.
67.
For the source, the only facts that are proven in the court case are that Ms.
Hernández had an unassisted out-of-hospital birth, which caused her to be in a state of
serious ill health. However, the police officers, the prosecutor’s office and the judicial
authorities presumed that she was guilty and that she was a dangerous person who might
obstruct justice.
68.
The source concludes that actions of this kind affect the fairness of the trials in a
manner that renders the detentions arbitrary under category III.
Categories II and V
69.
The source alleges that the detention of Ms. Rogel, Ms. Arana and Ms. Hernández
constitutes a violation of international law, as it is based on discrimination on the grounds
of sex or gender and socioeconomic status, in breach of articles 2 and 26 of the Covenant
and articles 2 and 7 of the Universal Declaration of Human Rights.
70.
The source argues that, while there is a possibility that access to health care might
not be interpreted as a right under category II, the prohibition of discrimination and the
right to equality certainly are rights under that category. In that connection, access to sexual
and reproductive health services and the non-criminalization of women who have out-of-
hospital births or obstetric emergencies are rights that stem from the right to equality and
the right not to be subject to gender discrimination. Consequently, the source considers it
necessary also to protect access to health care, particularly sexual and reproductive health
care, as a right whose exercise must not result in deprivation of liberty under category II.
71.
It is alleged that the detentions were based on sex and gender discrimination, since
they stemmed from the widespread practices of the authorities, who consider that women,
even when in a state of serious ill health and defenceless owing to an obstetric emergency,
must assume the role of a mother and put the life potentially resulting from their pregnancy
above their own life, even when they are unconscious.
72.
In Ms. Rogel’s case, it is indicated that the indictment filed by the prosecutor’s
office is evidence of discrimination, as it determines that:
There was an expulsion during childbirth that began pulmonary expiration
autonomously, in other words, with its own lungs, demonstrating the criminal intent
with which the accused acted, firstly by concealing her pregnancy and then, when
she was admitted to hospital, by not reporting the being that she had expelled in the
toilet, and it is obvious that a newborn, who is extremely weak and defenceless, will
manage to survive only with the prompt and tender care of its mother, which was not
provided in this case.
73.
In Ms. Hernández’s case, the prosecutor’s office indicated the following:
Demonstrating also the criminal intent with which the defendant acted, firstly by
concealing her pregnancy and then, when she was admitted to hospital, by not
reporting it and instead claiming not to know that she was pregnant, since it is not
credible and even absurd that a student in the third year of her baccalaureate in
health care would not recognize or feel the changes in her body during pregnancy.
74.
The source refers to a set of decisions on the matter by international human rights
mechanisms. These include general recommendation No. 33 (2015) of the Committee on
the Elimination of Discrimination against Women on women’s access to justice, the
concluding observations of that Committee on the eighth and ninth periodic reports of El
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Salvador and its Views in O.G. v. Russian Federation (CEDAW/C/68/D/91/2015); general
comment No. 28 (2000) of the Human Rights Committee on the equality of rights between
men and women, and the concluding observations of that Committee on the seventh
periodic report of El Salvador; the concluding observations of the Committee on Economic,
Social and Cultural Rights on the combined third, fourth and fifth periodic reports of El
Salvador; the statement issued by the United Nations High Commissioner for Human
Rights at the end of his mission to El Salvador on 17 November 2017; and the conclusions
and observations of the Inter-American Commission on Human Rights on its visit to El
Salvador in 2018.
75.
The source claims that, in addition to sex and gender discrimination, there are other
factors affecting access to justice, such as socioeconomic status and living in a rural area.
The Committee on the Elimination of Discrimination against Women has recognized that
rural women face particular obstacles in accessing justice, which aggravates the
discrimination against them. This implies that State authorities must take into consideration
the fact that access to health care, including sexual and reproductive health services, is
extremely limited for rural women. In its general recommendation No. 34 (2016) on the
rights of rural women, that Committee recognized that this is a result of prevailing social
norms and patriarchal attitudes, insufficient budget allocations to rural health services, lack
of infrastructure and trained personnel, lack of information on modern methods of
contraception, remoteness and lack of transport. This was the case for Ms. Rogel, Ms.
Arana and Ms. Hernández, who lacked even minimal access to health care during
pregnancy. The source stresses that the women’s deprivation of liberty was directly related
to obstetric emergencies, putting their lives at risk.
Response from the Government
76.
On 9 August 2019, the Working Group transmitted to the Government the
communication sent by the source and set a time limit for reply of 60 days. The
Government requested an extension of the time limit, which was granted on 11 October,
setting 1 November as the new time limit for replying. The Working Group finds it
regrettable that the Government did not submit its response within the time limit set. In
accordance with paragraph 16 of its methods of work, the Working Group will render its
opinion based on all the information it has obtained.
Discussion
77.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international standards constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations. A mere
assertion that lawful procedures have been followed is not sufficient to rebut the allegations
made in a particular case. 1 In the present case, in the absence of a reply from the
Government within the time limit set, the allegations made by the source are considered
reliable in principle, having been corroborated by all the information to which the Working
Group had access, including the late reply from the Government.
78.
The Working Group is convinced that Ms. Rogel had an accident on 7 October 2012
while in the laundry room of her house, when she slipped and suffered a severe blow. Her
relatives called for a municipal ambulance to take her to Nuestra Señora de Fátima National
Hospital, where she was admitted for having had a presumed incomplete abortion.
79.
The following day, on 8 October 2018, the prosecutor’s office was contacted by the
hospital to report an abortion, after which the police arrested Ms. Rogel for the alleged
commission of the crime. The judiciary authorized a search of her home. On finding the
body of the fetus, the forensic doctors concluded that it had no external injuries and the
body was transferred for an autopsy, which showed that the cause of death was head
trauma.
1 A/HRC/19/57, para. 68.
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80.
The Working Group is convinced that, at approximately 10 a.m. on 6 April 2016,
Ms. Hernández, who at the time of her arrest was a student, 18 years old and unaware of her
pregnancy, felt severe abdominal pain and subsequently gave birth. Her family took her, in
a state of serious ill health, to the emergency department of a hospital, where she was
admitted for having given birth out-of-hospital. Upon learning this, the authorities went to
her home, where they found a lifeless fetus. The body was referred to the forensic services
for an autopsy to determine the cause of death.
81.
Ms. Hernández was unaware of her pregnancy and no one witnessed the birth.
However, the police officers presumed the existence of a crime and, that same afternoon,
proceeded to arrest her in hospital, in a state of serious ill health, without an arrest warrant
and alleging that she was in flagrante delicto. The autopsy revealed that the newborn had
“meconium in the bronchi” and that the cause of death was “undetermined pending
histopathological samples”. That examination concluded that the newborn had died of
“aspiration pneumonia”, without determining the substance that had been aspirated.
82.
The Working Group received convincing information that Ms. Arana, aged 20 years
and with no schooling at all, was employed as a domestic worker and living in a remote
rural area. In September 2013, she was 39 weeks pregnant, and on 23 September, while at
home, she suffered an obstetric emergency, was experiencing labour pains and bleeding,
and had no medical support. Her family asked a neighbour to call the emergency number
and request urgent medical attention. National Police officers went to Ms. Arana’s home,
by which time she had already given birth in an outside toilet located 30 metres from her
house, without anyone assisting or being with her at the time. They found Ms. Arana
unconscious and in a state of serious ill health, and the newborn baby girl inside the toilet.
83.
On 24 September 2013, Ms. Arana was transferred to hospital and placed in police
custody on suspicion of attempted aggravated homicide. Two days later, she was charged
by the prosecutor’s office, which argued that she had thrown her daughter into the toilet and
thrown pieces of brick at her. On 24 September 2013, while Ms. Arana was still in hospital,
the judiciary ordered her detention.
Category I
84.
The Working Group has consistently found in its jurisprudence that a person is
arrested in flagrante delicto when he or she is apprehended during the commission of a
crime or immediately thereafter, or else is arrested in hot pursuit. The Working Group
considers that an arrest made after the alleged commission of a crime, without immediacy,
cannot be considered as having been made in flagrante delicto, even if it comes within 24
hours of the criminal act.2
85.
In the present case, the Working Group is convinced that the deprivation of liberty
of Ms. Rogel, Ms. Arana and Ms. Hernández occurred in hospital, several hours after they
had suffered an emergency. Therefore, it cannot be considered that they were arrested in
flagrante delicto, as they were not apprehended during the commission of a crime,
immediately thereafter or in hot pursuit. The Working Group also did not receive
convincing information that warrants were issued prior to the initial arrests. Consequently,
it considers that, in the absence of any legal basis that could legitimately have been invoked
by the authority, the detentions were arbitrary under category I.
Category III
86.
The source alleges that the trials of Ms. Rogel, Ms. Arana and Ms. Hernández were
biased and in violation of articles 10 and 11 of the Universal Declaration of Human Rights
and articles 9 and 14 of the Covenant.
87.
The Working Group considers that the right of accused persons to be assisted by
defence counsel and to have adequate time and facilities to mount a defence implies that
2 See opinions Nos. 13/2019, para. 53; 9/2018, para. 38; 36/2017, para. 85; 53/2014, para. 42; 46/2012,
para. 30; 67/2011, para. 30; and 61/2011, paras. 48 and 49. See also E/CN.4/2003/8/Add.3, paras. 39
and 72 (a).
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they should be given prompt access to lawyers and should be able to communicate privately
with them. The State must guarantee the confidentiality of communications with lawyers,
with adequate time for them to prepare a defence, and must also provide access to the file
containing all documents, evidence and other materials that the prosecution intends to
submit to the court.
88.
In Ms. Rogel’s case, the source alleges that the authorities disregarded the fact that
she was admitted to hospital with a diagnosis of incomplete abortion and in a poor state of
health, which shows how defenceless she was when she suffered the obstetric emergency.
The Working Group also received convincing information that the psychosocial report in
the file, which has been taken as valid evidence, is based on testimonies from people who
are not fully identified. This prevents the defence from disputing the expert opinion and
from verifying the statements made by the witnesses.
89.
In addition, the Working Group found that Ms. Arana’s right to a fair trial was
undermined, as she was represented during the criminal proceedings by several different
public defenders, who were appointed moments before each of the hearings and even failed
to appear at the relevant proceedings. Ms. Arana did not have genuine access to effective
legal representation that would ensure follow-up of her case and guarantee her right to
lodge an appropriate appeal against the grounds for deprivation of liberty.
90.
The Working Group found that Ms. Rogel and Ms. Arana’s right to an adequate
defence was not respected in the present case, in violation of article 14 (3) (d) of the
Covenant and article 11 of the Universal Declaration of Human Rights.
91.
Moreover, international human rights law establishes that pretrial detention should
be the exception and not the rule, and that it should be ordered for as short a time as
possible. It follows that detention must be an exception made in the interests of justice.
Article 9 (3) of the Covenant indicates that “release may be subject to guarantees to appear
for trial”. The applicable provisions require that the justification for pretrial detention be
analysed in a reasoned judicial decision in every case. The Working Group considers that,
before issuing a pretrial detention order, the judge must verify, on a case-by-case basis, that
less detrimental preventive measures are not applicable and sufficient.
92.
In the present case, the prosecutor’s office requested a formal investigation with
pretrial detention in respect of Ms. Rogel, accusing her of aggravated homicide and arguing
that the crime is of a serious nature and she might evade and/or obstruct justice. The
judiciary, in ordering the detention measure, considered that there was a likelihood of
involvement in the crime, that it is a serious crime and that, since it is punishable by 30
years’ imprisonment, the accused might seek to evade prosecution. Similarly, it noted that
“although there is no victim or injured party, it is possible that the accused may obstruct a
specific act of investigation”. When this measure was reviewed by the judiciary itself, a
decision was made to maintain the pretrial detention measure on the grounds that it was
“necessary to achieve the aims of the proceedings and ensure that the young woman stands
trial”.
93.
Concerning the pretrial detention of Ms. Hernández, the Working Group is aware
that the prosecutor’s office charged her with the crime of aggravated homicide and that the
judiciary considered that:
Since aggravated homicide is classified as a serious crime, defendants, faced with a
possible penalty of imprisonment for such a crime, generally try to evade justice not
only by changing their place of residence but even, sometimes, by leaving the
country, in view of the penalty that may be imposed, so the precautionary measure
of pretrial detention becomes necessary and is considered appropriate.
In another decision, the judiciary further noted that:
There is an obvious and natural risk of flight and of obstruction of the proceedings,
since the crime is punishable by very high minimum and maximum penalties, and
thus, objectively speaking, there is a high risk that the defendant will seek to evade
justice and, consequently, that the investigation will be hindered, among other
factors.
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94.
In Ms. Rogel and Ms. Hernández’s cases, the Working Group found that the
judiciary relied on the seriousness of the crime to justify pretrial detention and did not set
out its reasons for finding that there was a flight risk.3 Similarly, it did not explain whether
there were measures less detrimental to personal liberty could have been imposed to ensure
that the defendants stood trial.
95.
In addition, the Working Group found that Salvadoran legislation provides for
automatic pretrial detention in cases where the penalty could exceed 3 years’ imprisonment.
This is a requirement under article 331.2 of the Criminal Code, which, in domestic
jurisprudence, has been interpreted as requiring an individualized analysis of the need for
the measure in each case. The Working Group did not receive convincing information to
suggest that this specific analysis was carried out in each case to justify the need for pretrial
detention.
96.
Consequently, the Working Group is of the opinion that the detentions of Ms. Rogel,
Ms. Arana and Ms. Hernández, based as they were on the seriousness of the offence and
lacking an individualized analysis to justify the need for pretrial detention, were arbitrary,
in that they violated the presumption of innocence and ran counter to article 9 (3) of the
Covenant.
97.
In the light of the above considerations, the Working Group is of the opinion that the
fundamental guarantees of a fair, independent and impartial trial have been violated, in
breach of articles 9 and 14 of the Covenant and articles 10 and 11 of the Universal
Declaration of Human Rights.
Category V
98.
The Working Group will analyse whether the detention of the three women for
offences under the Criminal Code constitutes a violation of international law because it
involves discrimination on the basis of economic status and gender.
99.
The Working Group notes that the Criminal Code establishes an absolute ban on
abortion and that, since 1999, the Constitution has recognized “every human being as a
person from the moment of conception”.
100.
The Working Group observes that the absolute ban on abortion has led to the
systematic criminalization of women who suffer an obstetric emergency, the vast majority
of whom are living in poverty. The information received indicates that, between 2000 and
2011, 129 women were prosecuted for abortion or aggravated homicide, with sentences
ranging from 30 to 50 years’ imprisonment. According to the information received, 68 per
cent of the women were sentenced when they were between 18 and 25 years old, 22 per
cent have a low level of schooling, 82 per cent have little or no income and most come from
rural or marginalized urban areas.4
101.
The Working Group received information that, between 2002 and 2010, 57.36 per
cent of the recorded reports of suspected abortion came from public health professionals, in
violation of the duty of professional secrecy and confidentiality. The Working Group was
also struck by the fact that the practice of handcuffing women to hospital beds while they
are still receiving medical treatment has become widespread among health personnel and
the police authorities.
102.
The Working Group received information from the source explaining that, in these
types of criminal cases, women normally suffer systematic violations of their procedural
rights owing to a lack of effective legal assistance during interrogations and the trial, the
irregular collection of evidence and the assessment of evidence from a stereotypical
3 Opinions Nos. 4/2019, para. 66; 3/2018, para. 62; 56/2017, para. 68; and 51/2017, para. 53.
4 Jocelyn Viterna and José Santos Guardado, Análisis Independiente de la Discriminación Sistemática
de Género en el Proceso Judicial de El Salvador contra Las 17 Mujeres Acusadas del Homicidio
Agravado De Sus Recién Nacidos (Independent Analysis of Systematic Gender Discrimination in the
Legal Proceedings in El Salvador against the 17 Women Accused of the Aggravated Homicide of
their Newborns), 2014, available in Spanish at: https://scholar.harvard.edu/files/viterna/files/
viterna_guardado_2014_white_paper_spanish.pdf.
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perspective of women’s role in society. Similarly, appeal rulings are issued by the same
court that handed down the conviction at first instance, and legal representation is
inadequate. At the same time, women prosecuted for suffering an obstetric emergency are
deprived of their liberty in extremely overcrowded and unhealthy conditions characterized
by a lack of care. They are also separated from their children and other family members.
103.
The Working Group wishes to recall that the Committee on the Elimination of
Discrimination against Women has noted that:
Stereotyping and gender bias in the justice system have far-reaching consequences
on women’s full enjoyment of their human rights [and frequently result] in
perpetrators not being held legally accountable for violations of women’s rights,
thereby upholding a culture of impunity.5
104.
The Working Group has found that this issue has repeatedly been mentioned in
periodic reviews of the human rights situation in El Salvador and has been the subject of
repeated recommendations made to the State. In this context, the Committee on the
Elimination of Discrimination against Women recommended that El Salvador should
strengthen measures to ensure the access of girls, adolescents and women in rural areas to
adequate sexual and reproductive health services, including family planning and the
prevention of early pregnancies and unsafe abortions.6
105.
The Human Rights Committee, meanwhile, has recommended that El Salvador
should:
Review all cases of women who have been imprisoned for abortion-related offences,
with the aim of ensuring their release, and ensure that these women have access to
legal assistance and to due process.7
The Committee also expressed concern about the disproportionate sentences of up to 40
years’ imprisonment for aggravated homicide imposed on women who have an abortion or
suffer a miscarriage.8
106.
The Committee on Economic, Social and Cultural Rights has repeatedly expressed
concern about these issues, in particular:
Cases in which women whose health was seriously at risk have turned to the health
system and been reported on suspicion of having had an abortion. …
disproportionate criminal penalties have [even] been imposed with no regard for due
process.9
107.
The former United Nations High Commissioner for Human Rights said that he was
“appalled” at the consequences of the absolute ban on abortion and at the punishment of
women who suffer obstetric emergencies:
It only seems to be women from poor and humble backgrounds who are jailed, a
telling feature of the injustice suffered.10
108.
The Inter-American Commission on Human Rights, meanwhile, has found that the
absolute criminalization of abortion gives rise to significant problems, for example:
By imposing a disproportionate burden on the exercise of the rights of women and
girls and creating a context that facilitates unsafe abortions, [it] ignores the State’s
international obligations to respect, protect, and guarantee women’s rights to life, to
health, and to integrity.11
5 General recommendation No. 33, para. 26. See also A/HRC/38/36, paras. 19 and 75, and
A/HRC/41/33, para. 40.
6 CEDAW/C/SLV/CO/8–9, para. 37 (b).
7 CCPR/C/SLV/CO/7, para. 16.
8 Ibid., para. 15.
9 E/C.12/SLV/CO/3–5, para. 22.
10 OHCHR, Statement at the end of the mission to El Salvador, 17 November 2017.
11 Conclusions and observations on the working visit to El Salvador, 29 January 2018.
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109.
The Commission further considered that “the absolute criminalization of abortion
also has profound consequences on the national health system, the prison system, and the
child protection system in the country”. Such sentences allegedly fail to respect the right of
the accused to a fair trial, and negative stereotypes are said to prevail.12
110.
In the present case, the Working Group found that the three detained women did not
receive even minimal health checks during pregnancy and that the crimes with which they
were charged were directly related to obstetric emergencies. The detentions were based on
gender discrimination, since they stemmed from widespread practices in which women who
are in a state of serious ill health and defenceless are expected to put the potential life
resulting from their pregnancy above their own life, even when they are unconscious or
vulnerable, it being presumed that they are acting in bad faith.
111.
In Ms. Rogel’s case, the indictment filed by the prosecutor’s office states that:
There was an expulsion during childbirth that began pulmonary expiration
autonomously, in other words, with its own lungs, demonstrating the criminal intent
with which the accused acted, firstly by concealing her pregnancy and then, when
she was admitted to hospital, by not reporting the being that she had expelled in the
toilet, and it is obvious that a newborn, who is extremely weak and defenceless, will
manage to survive only with the prompt and tender care of its mother, which was not
provided in this case.
112.
In Ms. Hernández’s case, the prosecutor’s office indicated the following:
Demonstrating also the criminal intent with which the defendant acted, firstly by
concealing her pregnancy and then, when she was admitted to hospital, by not
reporting it and instead claiming not to know that she was pregnant, since it is not
credible and even absurd that a student in the third year of her baccalaureate in
health care would not recognize or feel the changes in her body during pregnancy.
113.
At a hearing on 12 April 2016, the court considered that Ms. Hernández:
Must have known that she was expecting a baby, but when she turned up at the
hospital in Cojutepeque, she continued to say that she did not know that she was
pregnant, attempting, by that attitude, to deceive the professionals who would attend
to her; therefore, in the opinion of the undersigned, the defendant poses a latent
flight risk.
During a hearing on 7 March 2017, another court considered that the defendant had
committed an intentional criminal act:
Since, on realizing that she was pregnant, she was obliged to care for and protect the
unborn child and to seek professional help to enable her child to be born in optimal
conditions. At no point did she mention to her mother that she was pregnant. Rather,
it is alleged that, when the time came for her to give birth, she went to the toilet,
which was a septic tank. Despite knowing her condition, she told her mother that all
she had was diarrhoea. Given that pregnancy is a condition of which it is difficult to
claim ignorance, especially for someone with the defendant’s level of education, it is
to be assumed that she intended to murder her own child.
114.
The Working Group notes that this case not only reflects deep discrimination against
the three women detained on account of their gender, but also reveals structural problems in
the exercise of several fundamental rights, including equal access to health services for
vulnerable persons and persons in situations of discrimination per se, such as poverty. In
the present case, the problem lies not only in the legislation applied, which must be
comprehensively reformed as a matter of urgency, but also in the way that the judicial
authorities interpret that legislation. This interpretation, which is contrary to the human
rights and dignity of women, also leads to the exercise of official police duties and the
provision of health services in a manner that violates the rights enshrined in the Covenant
and the Universal Declaration of Human Rights. The result is the imposition of measures of
12 Ibid.
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deprivation of liberty that are unnecessary, disproportionate, serve no legitimate purpose
and are seemingly implemented in an unreasonable manner.
115.
The Working Group considers that a legislative framework that affects only one
gender and restricts women’s rights in the way that this case demonstrates, is
discriminatory. In the view of the Working Group, laws, judgments or public policies that
restrict the right to personal liberty by criminalizing conduct related to the consequences of
a lack of access to and enjoyment of the highest attainable standard of health, or of obstetric
violence, or which criminalize the exercise of women’s reproductive rights, must be
considered to be prima facie discriminatory.
116.
The Working Group concludes that the detention of Ms. Rogel, Ms. Arana and Ms.
Hernández constitutes a violation of international law, as it is based on discrimination on
the grounds of sex or gender and socioeconomic status, in breach of articles 2 and 26 of the
Covenant and articles 2 and 7 of the Universal Declaration of Human Rights. It is therefore
arbitrary under category V.
117.
In view of the allegations concerning violations of the right to health and
discrimination and violence against women, the Working Group refers the present case to
the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health, the Special Rapporteur on violence against women,
its causes and consequences, and the Working Group on discrimination against women and
girls, for appropriate action.
118.
The Working Group calls on the authorities of El Salvador to review, reinterpret,
amend, discontinue the application of, and/or repeal – depending on the case, within the
framework of their respective competencies and in an urgent and comprehensive manner –
the criminal legislation applied against Ms. Rogel, Ms. Arana and Ms. Hernández, in order
to ensure effective compliance with the State’s obligations under the Covenant, the
Universal Declaration of Human Rights and international law.
119.
The Working Group informs the Government of its willingness to make an official
visit to El Salvador. Such visits are an opportunity for direct constructive dialogue with a
view to better understanding the situation of deprivation of liberty in the country and the
causes underlying arbitrary detention, thus effectively contributing to its prevention.
Disposition
120.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Sara del Rosario Rogel García, Berta Margarita Arana
Hernández and Evelyn Beatriz Hernández Cruz, being in contravention of articles 2,
7, 9, 10 and 11 of the Universal Declaration of Human Rights and articles 2, 9, 14
and 26 of the International Covenant on Civil and Political Rights, is arbitrary and
falls within categories I, III and V.
121.
The Working Group requests the Government of El Salvador to take the steps
necessary to remedy the situation of Ms. Rogel, Ms. Arana and Ms. Hernández without
delay and bring it into conformity with the relevant international norms, including those set
out in the Universal Declaration of Human Rights and the International Covenant on Civil
and Political Rights.
122.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Rogel, Ms. Arana and Ms. Hernández
immediately and accord them an enforceable right to compensation and other reparations,
in accordance with international law.
123.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Rogel, Ms. Arana and Ms. Hernández and to take appropriate measures against those
responsible for the violation of their rights.
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124.
The Working Group urges the Government to adopt legislative and judicial reforms,
as well as public policy reforms, in order to ensure compliance with its international human
rights obligations, in the light of the considerations set out in the present opinion.
125.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health, the Special Rapporteur on
violence against women, its causes and consequences, and the Working Group on
discrimination against women and girls.
126.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
127.
In accordance with paragraph 20 of its methods of work, the Working Group
requests the source and the Government to provide it with information on action taken in
follow-up to the recommendations made in the present opinion, including:
(a)
Whether Ms. Rogel, Ms. Arana and Ms. Hernández have been released and,
if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Rogel,
Ms. Arana and Ms. Hernández;
(c)
Whether an investigation has been conducted into the violation of Ms. Rogel,
Ms. Arana and Ms. Hernández’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made
to harmonize the laws and practices of El Salvador with its international obligations in line
with the present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
128.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
129.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of transmission of the present opinion.
However, the Working Group reserves the right to take its own action in follow-up to the
opinion if new concerns in relation to the case are brought to its attention. Such action
would enable the Working Group to inform the Human Rights Council of progress made in
implementing its recommendations, as well as any failure to take action.
130.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has requested them to take account of its
views and, where necessary, to take appropriate steps to remedy the situation of persons
arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have
taken.13
[Adopted on 20 November 2019]
13 See Human Rights Council resolution 42/22, paras. 3 and 7.