A/HRC/WGAD/2020/76

E. 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.

E. 2 In accordance with its methods of work (A/HRC/36/38), on 30 July 2020 the Working Group transmitted to the Government of El Salvador a communication concerning José Aquiles Enrique Rais López. The Government did not reply to the communication in a timely manner. The State is a party to the International Covenant on Civil and Political Rights.

E. 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, disability, or any other status, that aims towards or can result in ignoring the equality of human beings (category V). United Nations A/HRC/WGAD/2020/76 General Assembly Distr.: General 12 February 2021 English Original: Spanish A/HRC/WGAD/2020/76 2 GE.21-01728 Submissions Communication from the source

E. 4 José Aquiles Enrique Rais López is a national of El Salvador and Switzerland. He was born in March 1952 and is a businessman by profession. Mr. Rais has developed several businesses in the sugar sector and in the area of environmentally sustainable solid waste management. The source affirms that his business activities have brought him into conflict with corporate groups that have attacked him in an attempt to take over his businesses. a. Context

E. 5 The source states that Mr. Rais was first arrested in an allegedly arbitrary manner on 22 November 2001. Criminal proceedings were brought against him for a civil matter, during the course of which he was remanded in custody for more than a year before being acquitted by a criminal court. During that time, he reportedly went through experiences that endangered his life, safety and personal integrity, including a prison riot and a transfer to a cell with highly dangerous prisoners. To protect himself, Mr. Rais had to “buy” prison security, since the inmates were in charge and there were internal conflicts between prison gangs. The special prosecutor in charge of that failed indictment, who at the time was head of the Anti- Corruption Unit, was appointed Attorney General of the Republic several years later and used his office to bring other indictments against Mr. Rais and subject him to arbitrary detention.

E. 6 As a result of such financial persecution perpetrated through the criminal justice system, Mr. Rais lost his sugar business, leaving many workers unemployed. When the case was dismissed, Mr. Rais tried to recover his company through the civil courts and, when he was prevented from continuing by a judgment ordering that the company be put up for court auction or sale, he filed a criminal complaint alleging arbitrary acts, fraudulent administration and criminal damage. The Attorney General’s Office neither investigated nor processed this complaint, with the result that it became time-barred. The criminal court judge who was forced to apply the statute of limitations indicated that the Attorney General’s Office bore institutional responsibility for having failed to conduct an investigation.

E. 7 The source reports that criminal proceedings were subsequently brought against Mr. Rais in connection with another business dispute. Mr. Rais had reportedly acquired shares in a Canadian solid waste management company (MIDES). It is alleged that, even when he had paid off the entirety of the loan used to purchase the shares, the sellers refused to give him the share capital and began to extort more money than the agreed amount. On 13 June 2013, in response to this conduct, Mr. Rais filed a complaint for extortion, the scope of which was later broadened to misappropriation or unlawful withholding of funds. Currently, the accused businessmen, against whom arrest warrants have been issued, are refusing to appear for trial.

E. 8 According to the information received, on 20 December 2013 and 17 March 2014, the Canadian businessmen brought criminal charges against Mr. Rais’s corporate group in connection with a dispute in which they were unable to substantiate their claims in civil proceedings. They accused Mr. Rais, several members of his family and several trusted employees of fraud and fraudulent administration. In addition, the Canadian businessmen submitted a complaint against Mr. Rais, based on the same charges, to the prosecutor’s office of the canton of Vaud in Switzerland, where the Federal Public Prosecutor’s Office absolved him of all responsibility and ordered that the case be dismissed. The criminal proceedings against Mr. Rais in El Salvador were dismissed, despite which an unlawful attempt was made to reopen them. Even though the proceedings should have been discontinued two years ago, the case is still pending before the Criminal Division because an appeal in cassation has been filed. This allegedly violates the right to legal certainty of Mr. Rais and his family, who are still regarded as being under indictment owing to the lack of a judicial ruling that would put an end to the proceedings.

E. 9 In the source’s view, the alleged unlawful and arbitrary detention must be seen against the backdrop of institutional corruption and manipulation of the dispute over the shares in the MIDES company, with the approval of the former Attorney General. This situation deteriorated when another corporate group with interests in the solid waste management sector apparently sought to strengthen its market share by undermining Mr. Rais’s business A/HRC/WGAD/2020/76 GE.21-01728 3 group through the use of allegedly defamatory media campaigns involving information apparently provided by the Attorney General’s Office. This included information on Mr. Rais’s administrative detention on 22 August 2016, an administrative detention order issued on 15 October 2018 and contained in prosecution file No. 28-UIF-2016 (pending execution) and an administrative detention order issued on 5 January 2019 and contained in prosecution file No. 70-UCCO-2017 (pending execution). As a result, Mr. Rais was disqualified and prevented from participating directly in the negotiations for the renewal of waste collection contracts. b. Arrest and detention

E. 10 According to the information received, in July 2016 Mr. Rais learned from the media (in the absence of a court order) that, on 30 June 2016, a complaint had reportedly been filed against him for the alleged offence of forgery relating to the registration of the minutes of an extraordinary general meeting. For this reason, and in order not to leave room for speculation and to challenge any legal charges, he asked his lawyers to request the Attorney General’s Office to grant him the right to be informed of the charge and to actively participate in the investigation by providing evidence or offering to produce it for the corresponding defence. Although he made three requests to this effect, he was unable to obtain access to the information or the file.

E. 11 On Saturday, 20 August 2016, Mr. Rais received, via fax, a summons signed by the auxiliary official of the Attorney General’s Office attached to the Unit for Offences against the Administration of Justice and the Public Trust, summoning him to appear at the headquarters of the Attorney General’s Office at 2 p.m. on Monday, 22 August 2016 to be served with a criminal charge.

E. 12 The source indicates that Mr. Rais was scheduled to travel to Europe on 22 August

2016. However, the source affirms that, as Mr. Rais was being hounded in the media by corporate groups, he called off his trip in order to appear at the headquarters of the Attorney General’s Office in person, face the investigation and prove his innocence.

E. 13 According to the source, Mr. Rais went to the Attorney General’s Office on 22 August 2016 in the company of his lawyers. Forty minutes later, a police officer from the Elite Organized Crime Division of the National Civil Police told him that he was under arrest without producing a warrant. Although they insisted that the police officer show them an arrest warrant, the officer told them to ask a prosecutor if they wished to know the reason for the arrest as he had no further information. Minutes later, the assistant prosecutor assigned to the Specialized Unit for Offences Related to Organized Crime of the Attorney General’s Office appeared and said that he was unaware of the facts and reasons for the arrest.

E. 14 Mr. Rais was presented to reporters, who had been summoned to the press room of the Attorney General’s Office, as a member of a criminal organization that had corrupted judges and various officials in collusion with the former Attorney General. After the public presentation, which allegedly violated the presumption of innocence, Mr. Rais and two other persons arrested in the same operation were placed in administrative detention at the facilities of the Narcotics Division of the National Civil Police without being informed of the charges or their rights and without being brought before a judge.

E. 15 In the source’s view, it is important to emphasize that Mr. Rais’s arrest was not a consequence of the investigation related to the case for which he had been summoned. It was subsequently learned that this was an investigation conducted by the Specialized Unit for Offences Related to Organized Crime of the Attorney General’s Office for the alleged offences of criminal misstatement, aggravated forgery of documentation, procedural fraud, perversion of the course of justice, failure to investigate and bribery. These offences were alleged to have been committed by an organized group that included lawyers, judges and prosecutors, with the alleged connivance of the former Attorney General of the Republic. The source further affirms that the arrest was conducted in connection with a case based on information obtained through wiretapping, contained in wiretapping report No. 8-DIT-2014, despite the fact that there was no authorization to tap Mr. Rais’s telecommunications as he was not under investigation and had no connection with the facts that gave rise to the wiretapping operation. A/HRC/WGAD/2020/76 4 GE.21-01728

E. 16 At the Narcotics Division on the day of the arrest, Mr. Rais was reportedly prevented from speaking to his family and was not informed of the substantive grounds for his arrest, as the police officers there prevented his lawyers from entering. Furthermore, he was given only a routine general examination rather than a proper medical check-up that would have taken into account his age and medical conditions such as hypertension.

E. 17 The source stresses that the police officer who arrested Mr. Rais did not inform him of the rights of accused persons. Despite this omission, the source states that, the following day, the officer returned to the facilities where Mr. Rais was detained with a record stating that he had informed Mr. Rais of his rights at 3 p.m. on 22 August 2016 at the Elite Organized Crime Division of the National Civil Police. The fact that Mr. Rais was never taken there or read his rights clearly reveals an intention to create a false record. The source states that, in view of these circumstances, Mr. Rais signed the document to acknowledge receipt, but wrote next to his signature “signed at 9.40 (hours) on 23 August 2016”.

E. 18 Following the arrest, he was reportedly placed in an unventilated room, measuring around 12 m2, in which he spent all his time together with eight other persons. The inmates had to sleep on mattresses and were prevented from relieving themselves, as they were allowed to use the toilet only once a day, irrespective of their state of health. c. Use of faceless witnesses

E. 19 The source reports that, at 8 a.m. on 26 August 2016, the prosecutor conducted an interview with a faceless witness with the code name Roble that was not open to challenge and did not take place in the presence of a judge or the parties. In addition, the testimony of three other faceless witnesses, with the code names Carlos José, Alpino and Francia, was used to justify the issuance of the arrest warrant.

E. 20 The source states that, to date, none of the identities of these faceless witnesses is known. As a result, the defence cannot gain access to this source of evidence and does not have the time and means to prepare a defence in accordance with article 14 (3) (e) of the Covenant. d. Regulations and practice of automatic pretrial detention

E. 21 The source notes that the relevant part of article 331 of the Code of Criminal Procedure provides that: Alternative measures shall not be substituted for pretrial detention in the case of the following offences: homicide, aggravated homicide, kidnapping, sexual offences, aggravated robbery, extortion, defrauding the public purse, sale of persons, smuggling of persons, trafficking in persons, civil unrest, offences covered by the Drug-Related Activities Act or offences covered by the Money-Laundering Act.

E. 22 Mr. Rais appeared in response to the first summons issued by the Attorney General’s Office, in compliance with article 83 of the Organic Act on the Attorney General’s Office. He could not be detained, as the Attorney General’s Office is authorized to impose administrative detention only in cases of flagrante delicto, which this was not, or where the person summoned does not appear in response to the second summons without just cause, in which case he or she may be arrested or detained.

E. 23 Consequently, it is argued that Mr. Rais’s appearance in response to the first summons, for the offence under investigation of which he had been informed, proved his willingness to answer and comply with all institutional orders concerning an investigation for which he was summoned, as well as his willingness to face justice and follow due process to confirm his innocence of the offences that had been alleged or were under investigation. In the source’s view, this means that there were no abstract or specific grounds for believing that Mr. Rais might abscond, especially taking into account that he had no knowledge of the case for which he was finally arrested, on 22 August 2016, since he was summoned in connection with one case but detained in connection with a different and totally unknown case without being informed of the facts and charges and without being served with an arrest warrant.

E. 24 The prosecutors dealing with the case drew up and signed an administrative detention order, allegedly at 8 a.m. on 22 August 2016, that was never shown to the arrested person or A/HRC/WGAD/2020/76 GE.21-01728 5 his lawyers and that cited article 329 of the Code of Criminal Procedure, which stipulates that “the offence must carry a maximum prison term of more than 3 years”. The source argues that the prosecutors did not carry out a comprehensive and effective assessment of whether the procedural requirements for issuing Mr. Rais with an administrative detention order had been met in his case. Instead, they applied the measure automatically, implementing the rule of criminal procedure that stipulates that this precautionary measure may be applied in cases involving offences that carry a maximum prison term of more than 3 years.

E. 25 According to the information received, on 25 August 2016, the Attorney General’s Office submitted a request to Magistrates’ Court No. 7 of San Salvador for a special hearing on the imposition of measures against Mr. Rais, and others, on the basis of the prosecution’s investigation file. On the same day, the judge scheduled the initial hearing for the following day. On 26 August 2016, at 11.35 a.m., the initial hearing was convened before that court. The first motion raised by the Attorney General’s Office was to reformulate the prosecutor’s application, since it was intended not as a request for a special hearing for the imposition of measures, but as an application for prosecution. The Office also requested the correction of names, dates, affected legal interests and information unrelated to the case. Subsequently, it insisted that the court allow, at the hearing, the playback of audio recordings that the prosecutors had previously selected. Unusually, the head of the Judicial Investigation Section of the Supreme Court of Justice, which is responsible for disciplining judges, was present during the hearing.

E. 26 At the close of the hearing on Sunday, 27 August 2016, the judge ordered that alternatives to pretrial detention be applied in Mr. Rais’s case, since, at that point in the investigation, the conditions set out in article 329 of the Code of Criminal Procedure, all of which had to be found to exist in order for the most serious measure – pretrial detention – to be imposed, had not been met. The decision was taken in consideration of the presumption of innocence of the accused parties, who also presented subjective evidence of local ties in relation to their work and residence, and of the delicate state of health of some of the defendants. It was thus decided to apply precautionary measures other than pretrial detention in order to safeguard the purposes of the criminal proceedings. Accordingly, for this second period of detention, Mr. Rais remained in custody from 22 to 28 August 2016.

E. 27 On 2 September 2016, the date indicated in the record of the initial hearing, the judge presiding over Magistrates’ Court No. 7 stated the decision taken at that hearing and set out the justification for the precautionary measures ordered, taking into account the fact that Mr. Rais and others were deprived of their liberty when they appeared at the Attorney General’s Office in response to a summons, which clearly demonstrated their willingness to submit voluntarily to the criminal proceedings. This made it reasonable to assume that they would submit to the proceedings against them, making it possible for a precautionary measure other than detention to be adopted (initial hearing decision, pp. 38–39). The court file was forwarded to Court of Investigation No. 7 of San Salvador, which excused itself from hearing the case because the judge of that court had authorized the wiretapping of related conversations that were recorded in the files of other cases against Mr. Rais’s co-defendants. e. Reprisals against the judge who ordered an alternative to pretrial detention

E. 28 According to the information received, on 20 September 2016, at a plenary meeting of the Supreme Court of Justice, the transfer of certain judicial officials was proposed during a discussion of an agenda item concerning administrative measures related to the transfer of judges. In the discussion of section a.3, it was decided to curtail the appointment of the acting judge of Magistrates’ Court No. 7 of San Salvador – who had presided over Mr. Rais’s hearing – and return her to the Ilopango Magistrates’ Court. The source states that, during the voting process, one judge expressed his disagreement with the change because public pressure had been brought to bear on the judge and, if she was removed from the case, it would suggest that the intention was to find “tailor-made judges”, in line with the wishes of powerful groups. According to the source, another judge also argued against this decision, as it would correspond to what some groups were allegedly seeking.

E. 29 On 12 January 2017, the media reported the expected outcome of the review hearing conducted by Criminal Division No. 1 of San Salvador, stating that it was expected to revoke the precautionary measures applied to Mr. Rais and order instead that he be held in pretrial A/HRC/WGAD/2020/76 6 GE.21-01728 detention starting on 12 January 2017. The source indicates that, on the basis of this order, it remains possible that Mr. Rais will be arbitrarily detained again.

E. 30 The source stresses that the decision handed down by the Appeals Division is based on the consideration that a court had authorized the wiretapping of all the telephone numbers in the case file and in the analysis of the case prepared by the computer technician of the Attorney General’s Office. In fact, no investigation has been conducted into the facts of the case brought against Mr. Rais, no court authorization has been granted in connection with telephone devices registered in his name or used by him and there are no records of his communications, since the numbers referred to in the analysis belonged to someone else. In addition, the defence had no access to transcripts of the audio recordings or to the information provided by the faceless witnesses that was used to justify the administrative detention and the initiation of criminal proceedings. The Attorney General’s Office was unable to establish the grounds on which it considered Mr. Rais to be a flight risk.

E. 31 The source reports that, on 12 January 2017, before Mr. Rais’s lawyers were notified of the decision taken at the review hearing, different digital media platforms reported that the precautionary measures applied to Mr. Rais had been revoked. The source affirms that, on that day, the communications officer of the courthouse announced to the press that the Division had decided to discontinue the alternative measures. Court of Investigation No. 8 of San Salvador, which was responsible for implementing these decisions, was not informed of them.

E. 32 The source indicates that the action taken by the communications officer of the courthouse was so improper and contrary to the information protocol procedure on the communication of court rulings that the matter was discussed at the plenary meeting of the Supreme Court of Justice on 26 January 2017. On that occasion, the press officer said that he had acted on the direct instructions of the president of the First Division. The source affirms that the communications officer continues to provide the media with biased information to the detriment of Mr. Rais, most recently on 17 February 2020. f. Context and structural problems

E. 33 The source points out that the justice system in El Salvador has a number of general institutional weaknesses. The Constitution and laws have concentrated prosecutorial and investigative powers in the Attorney General’s Office. Since 2010, the Attorney General of the Republic has held virtually unlimited powers.

E. 34 Article 13 of the Constitution, which outlines some of the characteristics of criminal proceedings, establishes three forms of detention: (a) administrative detention, which takes place during the administrative phase of the investigation and may last no longer than 72 hours; (b) detention for the duration of the inquiry, which takes place during the initial judicial review phase and culminates in the initial hearing; and (c) pretrial detention. The Attorney General of the Republic is authorized by law to issue administrative detention orders, to request detention for the duration of the inquiry before the initial hearing and to request pretrial detention as a precautionary measure after the completion of the hearing. In practice, administrative detention is not subject to any judicial supervision and detention for the duration of the inquiry is implemented automatically. The courts almost always order pretrial detention, especially for offences carrying sentences of more than 3 years’ imprisonment.

E. 35 The source also argues that criminal proceedings are characterized by rules,

interpretations and practices that violate international standards on the right to liberty, the

right to a fair trial, and the right to due process, all of which fall under category III. The

source expressly objects to the following:

(a)

The authorities make use of faceless witnesses, passed off as “reliable sources”

or described in similar terms, as a basis for ordering administrative detention without

establishing probable cause, without judicial oversight, without allowing for intervention by

the parties or by the accused person’s defence, without the possibility of disqualification or

of ever knowing the witnesses’ identity, without the accused person’s being able to question

their testimony, even if only before the Attorney General’s Office, and without the presence

of the defence or the judge hearing the case. According to the source, all the above is in

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7

violation of article 14 (3) (e) of the Covenant, which provides for the right of the accused “to

examine, or have examined, the witnesses against him and to obtain the attendance and

examination of witnesses on his behalf under the same conditions as witnesses against him”;

(b)

Widespread and improper use is made of testigos criteriados (defendants or

convicts who turn State’s evidence and may enjoy discretionary benefits) outside the legal

framework governing their use (i.e. without respecting the condition that they must be co-

defendants in the same case). The source states that defendants in other cases are used and

that the Attorney General’s Office offers them favourable conditions in their trial in exchange

for their serving as anonymous witnesses under a code name in other cases, in conditions

similar to those applied to faceless witnesses, for which purpose they sign witness statements

(allegedly under duress), previously prepared by the Attorney General’s Office, relating to

facts and situations. The source reports that this practice is consistent with the descriptions

provided by various judges, who have repeatedly highlighted the fact that the Attorney

General’s Office makes use of defendants or convicts who turn State’s evidence in exchange

for benefits and that such witnesses are unreliable;

(c)

Pretrial detention is often imposed automatically and is governed by

regulations that are interpreted in conjunction with constitutional jurisprudence (relating,

inter alia, to lengthy sentences, specific offences, rules on complex crime and a narrow

normative criterion according to which pretrial detention must be ordered if the accused has

already been granted an alternative to pretrial detention);

(d)

The National Civil Police, with the acquiescence or collusion of the Attorney

General’s Office, discloses the identities of persons suspected of committing an offence who

have not been brought before a competent judicial authority and have not been formally

accused or charged, much less convicted;

(e)

The legal mechanisms for the review of custodial measures (specifically,

criminal appeals against such measures and habeas corpus actions) are ineffective, as the

response is often inappropriate or delayed;

(f)

The State tends to generate criminal justice responses intended to calm popular

anxieties about crime, through the elaboration of media messages that give the misleading

impression that the Attorney General’s Office is being diligent, in violation of the principle

of legality and the presumption of innocence. This constructs an institutional narrative that

brings pressure to bear on the judiciary, in the person of the judges, who are meant to carry

out judicial oversight and monitor the compliance of detentions with international treaties;

(g)

Criminal cases are manipulated by media outlets, which release advance

information even before the institutions have taken action or made arrests.

g.

Alleged violations

E. 36 In this context, the source argues that, since 2001, Mr. Rais has been subjected to

institutional persecution by the justice system at the behest of corporate groups that have used

officials of the Attorney General’s Office to open criminal proceedings against him on the

basis of false or dubious evidence in order to have him arbitrarily detained. In 2001, Mr. Rais

was arbitrarily detained for more than a year in a sham criminal trial. He was acquitted

because the case concerned a civil and commercial matter in connection with which he lost

his sugar company. On 22 August 2016, the Attorney General’s Office orchestrated his

arbitrary administrative arrest, without respecting international standards, by means of the

following acts and omissions:

(a)

The Attorney General’s Office issued a summons, to be served on Mr. Rais as

part of an investigation, at a time when he was being detained for other facts even though no

warrant had been issued and the situation was not one of flagrante delicto;

(b)

An investigation was initiated by the Specialized Unit for Offences Related to

Organized Crime of the Attorney General’s Office when, as the plenary Court had already

declared, the offences concerned were not of that nature. This initial mischaracterization was

used to tarnish the personal and business image of Mr. Rais, whose bank accounts were all

closed by the banks. After more than a year of discussions concerning the lack of jurisdiction,

a preliminary hearing was convened even though the Attorney General’s Office had not

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GE.21-01728

conducted or authorized evidentiary proceedings. The Attorney General’s Office presented

formal charges when it should have requested the discontinuance or stay of the criminal

proceedings. The procedures implemented in this case are thus alleged to be discriminatory;

(c)

The charges and facts for which Mr. Rais was detained were never notified,

read or explained to him;

(d)

Mr. Rais was prevented from contacting his lawyers at the time of his arrest

and for several days afterwards;

(e)

Mr. Rais was prevented from communicating with his family at the time of his

arrest and for several days afterwards;

(f)

The arrest and subsequent pretrial detention (pending execution) were justified

on the basis of false and spurious evidence (faceless, unidentified witnesses whose statements

could not be challenged and had not been made in the presence of a judge; false witnesses

(officials of the Attorney General’s Office) who acted under coercion, threats and

psychological torture);

(g)

Illegal and unauthorized wiretapping was carried out in connection with

another investigation without a proper chain of custody and without any identification linking

the telephone numbers or the voice to Mr. Rais;

(h)

Mr. Rais was presented to the media as guilty when he was unaware of the

charges and had not been brought before a competent judicial authority. This also served to

apply pressure to the judges;

(i)

Pretrial detention was ordered automatically without the advancement of any

arguments or justification for determining the time, place and manner of its application based

on individual circumstances; instead, the authorities merely cited the procedural norm that

provides for pretrial detention for offences carrying a sentence of more than 3 years’

imprisonment (article 329.2 of the Code of Criminal Procedure);

(j)

The judge who ordered that precautionary measures other than pretrial

detention be applied in Mr. Rais’s case was reassigned in retaliation for those measures;

(k)

Judicial independence was violated when the presiding judge of Magistrates’

Court No. 7, who had granted alternatives to pretrial detention, was transferred and other

judges were brought in so that the criminal cases against Mr. Rais could be continued;

(l)

The State party failed to provide an independent and impartial tribunal by

violating judicial guarantees and having the Supreme Court appoint interim or substitute

judges for short or indefinite periods of time, at its discretion, to hear and rule on criminal

cases involving Mr. Rais. This all forms part of a routine practice whereby the Attorney

General’s Office uses similar situations as a structural basis for imposing widespread

unlawful and arbitrary detentions.

E. 37 The source concludes by stating that the facts outlined above demonstrate that the Attorney General’s Office engaged in clearly unlawful practices in order to arbitrarily detain Mr. Rais. This purportedly gives rise to a well-founded fear that Mr. Rais will be subjected to unlawful and arbitrary detention for a third time, putting his life and personal integrity at risk, with the alleged intent of preventing him from carrying out his business and economic activities.

E. 38 In the light of the above, the source requests the Working Group to find that the Government has violated Mr. Rais’s right to personal liberty by means of arbitrary detention, and in particular has violated articles 2, 3, 5, 7, 8, 9, 10, 11 (1) and 13 of the Universal Declaration of Human Rights and article 2 (1) (the obligation to respect the rights and guarantees set out in the Covenant), article 2 (2) (the obligation to take legislative or other measures to bring national law into conformity with the Covenant), article 2 (3) (the right to an effective remedy), article 5 (the pro personae principle), article 9 (1) (the prohibition of arbitrary arrest or detention), article 9 (3) (stipulating that persons awaiting trial must not be detained in custody as a general rule), article 9 (4) (the right to apply to a court to challenge detention as being unlawful or arbitrary), article 14 (1) (the right to be heard by an independent and impartial judge and the right to petition and due process) and article 14 (2) A/HRC/WGAD/2020/76 GE.21-01728 9 (the presumption of innocence) of the Covenant, all read alone and in conjunction with article 2 (3). It is requested that Mr. Rais’s situation be remedied without delay through the cessation of threats to his right to personal liberty and a review of the procedural acts by which his rights to personal liberty and to a fair, independent and impartial trial were violated. Response from the Government

E. 39 On 30 July 2020, the Working Group transmitted the allegations from the source to the Government and requested a response by 28 September 2020, including detailed information clarifying the factual and legal grounds for Mr. Rais’s detention and explaining how it was compatible with the State’s international human rights obligations.

E. 40 On 30 July 2020, the Permanent Mission of the Republic of El Salvador to the United Nations Office at Geneva confirmed to the Working Group that it had received the allegations made by the source. It also stated that the communication had been forwarded to the relevant authorities of the Ministry of Foreign Affairs for follow-up and response. However, the Working Group regrets that the Government did not respond to the communication within the time limit.1 Discussion

E. 41 In the absence of a timely response from the Government, the Working Group has decided to render the present opinion, in conformity with paragraph 15 of its methods of work.

E. 42 In determining whether Mr. Rais’s detention was arbitrary, the Working Group has regard to the principles established in its jurisprudence to deal with evidentiary issues. If the source has established a case for breach of international requirements constituting arbitrary detention, the burden of proof should be understood to rest upon the Government if it wishes to refute the allegations. The Working Group affirms that mere assertions that lawful procedures have been followed will not be sufficient to rebut the source’s allegations (A/HRC/19/57, para. 68). In the present case, despite having acknowledged receipt of the communication sent by the Working Group, the Government has not challenged the allegations made by the source within the time limit. Preliminary observations

E. 43 The source argues that the detention of Mr. Rais on various occasions has been arbitrary, since it has no legal basis, as defined by the Working Group in category I. The source affirms that Mr. Rais’s freedom, and his and his family’s security, access to justice and right to fair trials before competent authorities, have been at serious risk for several years. The source also states that these actions are aimed at preventing him from working as a businessman, stopping his business activities from developing and prospering in the Salvadoran market and bankrupting him as part of a campaign of financial persecution.

E. 44 The source alleges that these activities were carried out with the backing of the criminal justice authorities of El Salvador, including high-ranking officials of the Attorney General’s Office. In the source’s view, this is because the justice system suffers from a number of general institutional weaknesses, including an excessive concentration of power in the Attorney General’s Office, the body that, according to the source, orchestrated these actions against Mr. Rais. The source stresses that another reason for regarding Mr. Rais’s detention and other problems with the criminal justice system as arbitrary is that, in an attempt to establish the existence of the offences of which he is accused, he has been taken to court for civil, business and commercial matters, and has thus been removed from the proper jurisdiction. This has had the effect of discrediting him and his business activities, companies and family, for the purpose of bankrupting him definitively and preventing him from operating as a businessman in the market and the world of trade. 1 The Government replied to the communication on 18 December 2020, after the present opinion had been adopted. A/HRC/WGAD/2020/76 10 GE.21-01728

E. 45 The source states that the pursuit of this goal involved the use of faceless witnesses who were thus not properly identified and were presented to the authority under code names. The source also states that, in exercising the excessively concentrated power described above, the authorities took action against the judge who ordered an alternative measure in place of the pretrial detention that had been requested by removing her from the case and transferring her to another location, to the detriment of Mr. Rais’s interests. All this was done without regard to the fact that, in accordance with article 9 (3) of the Covenant, it should not be the general rule that persons awaiting trial are detained in custody.

E. 46 The source states that Mr. Rais is currently facing a campaign of judicial persecution that includes his administrative arrest on 22 August 2016. In addition, prosecution file No. 28-UIF-2016 contains an administrative detention order against him, dated 15 October 2018, which is still pending execution. The source states that prosecution file No. 70-UCCO-2017 contains another administrative detention order, dated 5 January 2019, which is also pending execution. All these legal activities, together with Mr. Rais’s initial arrest in 2001, when he was remanded in custody and charged with criminal offences in connection with a civil matter that was nevertheless decided upon in a criminal court and was dismissed for lack of evidence, have prevented Mr. Rais from participating directly in the negotiations for the different contracts that he was due to renew and had planned to execute. i. Category I

E. 47 According to the source, each time that Mr. Rais was detained, he was not informed, at the time of the arrest, of the legal grounds for the detention. He was also held incommunicado for several days and prevented from receiving support and advice from his lawyers. All these circumstances correspond to the elements identified by the Working Group as constituting arbitrary detention under category I.

E. 48 The source states that, in the present case, Mr. Rais responded to a summons signed by the auxiliary official of the Attorney General of the Republic attached to the Unit for Offences against the Administration of Justice and the Public Trust, summoning him to appear at the headquarters of the Attorney General’s Office at 2 p.m. on Monday, 22 August

2016. In these circumstances, according to the source, a police officer from the Elite Organized Crime Division of the National Civil Police appeared on the scene and proceeded to arrest Mr. Rais without producing any court order or giving any explanation, despite being insistently asked why Mr. Rais was being arrested, both by Mr. Rais himself and by the lawyers accompanying him. The arresting officer stated that he did not have an arrest warrant, did not know the reasons for the arrest and was only following orders. Minutes later, the assistant prosecutor attached to the Specialized Unit for Offences Related to Organized Crime of the Attorney General’s Office appeared and said he was also unaware of the facts and reasons for the arrest.

E. 49 The source states that, following Mr. Rais’s administrative arrest, he was transferred to the facilities of the Narcotics Division of the National Civil Police without being informed of the charges, without being shown a warrant of commitment and without being brought before any competent judicial authority.

E. 50 The source states that, the following day, the officer who had arrested Mr. Rais

returned to the facilities where the latter was being held with a record stating that his rights

had been read to him at 3 p.m. on 22 August 2016, at the facilities of the Elite Organized

Crime Division of the National Civil Police. However, Mr. Rais was never taken to that place

or read his rights. In the source’s view, this clearly reveals an intention to create a false record.

The source states that, in view of these circumstances, Mr. Rais signed the document to

acknowledge receipt but wrote next to his signature “signed at 9.40 (hours) on 23 August

2016”.

51.

In the light of the situation described above, the Working Group considers that the

source has established a credible case that the authorities did not produce an arrest warrant

when they arrested Mr. Rais and did not inform him of the reasons for the arrest, which, in

the view of the Working Group,2 constitutes arbitrary detention. Furthermore, the Working

2 Opinions No. 46/2019, para. 51, and No. 10/2015, para. 34.

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Group notes that, in the present case, the accused was not discovered in flagrante delicto and

there were thus no grounds for contending that the authorities were responding to an offence

that was being or had just been committed.3 The Working Group recalls that it is not sufficient

for there to be a law under which an arrest may be authorized; the authorities must also invoke

that legal basis and apply it by citing it in the corresponding warrant.4

52.

In the present case, the arresting officer not only failed to produce an arrest warrant at

the time of the arrest but also stated that he was unaware of the reasons for it. Furthermore,

the source reports that the prosecutor took Mr. Rais to the press room of the Attorney

General’s Office and made public comments to the press, which is expressly contrary to the

guidance set out by the Human Rights Committee.5 In the view of the Working Group, these

facts, which have not been refuted by the Government, constitute violations of articles 3 and

9 of the Universal Declaration of Human Rights and article 9 (1) and (2) of the Covenant,6

with the result that Mr. Rais’s detention was without a legal basis. Thus, Mr. Rais’s detention

corresponds to what the Working Group has identified as arbitrary detention under category

I.

53.

According to the Working Group, a person who is arrested and detained must be

brought before a judge within 48 hours of arrest and any further delay must be absolutely

exceptional and justified by the particular circumstances of the case.7 The Working Group

notes that Mr. Rais was arrested on 22 August 2016 and was first brought before a competent

authority on 26 August 2016, which equates to a delay of more than 48 hours between his

arrest and appearance in court. Likewise, it is not sufficient to bring a detained person before

a prosecutor, as detention must be monitored by a judicial authority with the necessary

independence to supervise the lawfulness of the detention.8 In the absence of an explanation

from the Government, the Working Group concludes that Mr. Rais was deprived of the right

to be brought promptly before a court to challenge the lawfulness of his detention, in

contravention of article 9 of the Universal Declaration of Human Rights, article 9 (3) of the

Covenant, principles 11 and 37 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment and the principle of legality, which is

established as a peremptory norm of international law (jus cogens) and applies to all forms

of arbitrary deprivation of liberty.9

54.

The Working Group has established that holding persons in a manner that denies them

access to the outside world, including their family and lawyers, violates their right to

challenge the lawfulness of detention before a court under article 9 (4) of the Covenant. In

this regard, account must be taken of the importance of judicial supervision of detention as a

fundamental guarantee of personal liberty, which is essential in order for detention to have a

legal basis.10 In view of the fact that Mr. Rais was held incommunicado for several days and

was therefore unable to challenge his detention, his right to an effective remedy under article

8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant was violated.

ii.

Category III

55.

The Working Group affirms that the right to due process and to a fair and impartial

trial is a fundamental basis of democracy and must be guaranteed to all persons in both civil

and criminal cases. Legal institutions and the rule of law are partly rooted in the effective

3 Opinion No. 9/2018, para. 38.

4 Opinions No. 46/2019, para. 51; No. 46/2018, para. 48; No. 36/2018, para. 40; and No. 10/2018, para.

45.

5 General comment No. 32 (2007), para. 30, in which the Committee notes that public officials should

abstain from making public statements affirming the guilt of the accused.

6 Opinion No. 45/2019, para. 50 (an arrest warrant must be presented at the time of arrest; presenting a

warrant after the arrest is not sufficient). See also opinion No. 71/2019, para. 70.

7 Opinions No. 31/2020, para. 45; No. 76/2019, para. 38; No. 56/2019, para. 80; No. 36/2019, para. 36;

No. 26/2019, para. 89; and No. 20/2019, para. 66.

8 Opinions No. 41/2020, para. 60; No. 33/2020, para. 75; No. 32/2020, para. 44; No. 45/2019, para. 52;

No. 44/2019, para. 53; No. 46/2018, para. 50; No. 35/2018, para. 37; and No. 75/2017, para. 48.

9 Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of

Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37), guideline 1, para. 47 (a).

10 Ibid., para. 3.

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protection of all human rights and in free and easy access to the administration of justice,

which must be provided by all competent, independent and impartial courts, guaranteeing the

presumption of innocence, non-discrimination and equality before the law. The Human

Rights Committee, in authoritatively interpreting the meaning and scope of article 14 of the

Covenant, has established that the right to “a fair and public hearing by a competent,

independent and impartial tribunal established by law” is applicable to all judicial

proceedings11 and must therefore be guaranteed and implemented in all States parties to the

Covenant, irrespective of their legal tradition and national law.

56.

This right is inextricably linked to the mandate of the Working Group and is also set

out in the Universal Declaration of Human Rights, the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, the Code of Conduct for Law

Enforcement Officials, the Body of Principles for the Protection of All Persons under Any

Form of Detention or Imprisonment, the United Nations Standard Minimum Rules for the

Treatment of Prisoners (the Nelson Mandela Rules), the Guidelines on the Role of

Prosecutors, the Basic Principles on the Role of Lawyers and article 26 of the Covenant,

which provides that “all persons are equal before the law and are entitled without any

discrimination to the equal protection of the law”.

57.

In the present case, the Working Group considers that the source has clearly and

credibly demonstrated that the elements that should have guaranteed a fair trial for Mr. Rais

have been violated, including his rights to equal treatment before the law, non-discrimination

and an independent judiciary to oversee the cases brought against him. The Working Group

notes the source’s allegation regarding the reprisals against the judge who acted in

accordance with national and international regulations when she complied with article 9 (3)

of the Covenant on the use of pretrial detention as a measure of last resort.12 The Working

Group also notes the source’s statement about the excessive number and frequency of

detention orders issued against Mr. Rais – some of which are still pending execution – and

the adverse effect that they have had on his human dignity.

58.

The source’s reports make it clear to the Working Group that Mr. Rais’s right to be

promptly informed of the reasons for his arrest was not respected. The Working Group recalls

that this right is inviolable and that it may even be fulfilled orally, provided that it is

subsequently confirmed in a written statement specifying both the law and the facts on which

the charge is based.13 In the opinion of the Working Group, these actions constitute violations

of article 9 (2) of the Covenant, since the detained person was not notified of the charges and

therefore could not contest them. According to the source, Mr. Rais was also held

incommunicado for several periods, during which he was denied access to his lawyer and to

proper legal assistance. As a result, he was denied access to a court for the purpose of

verifying the lawfulness of his detention. Furthermore, the source has established, and the

Government has not denied, that Mr. Rais was subjected to automatic pretrial detention,

which contravenes the right to the presumption of innocence.14

59.

The Working Group further notes that faceless witnesses were used in the legal

proceedings brought against Mr. Rais. These witnesses could not be known or identified

because, in addition to having their faces hidden, they were identified only by code names,

which constitutes a violation of article 14 (3) of the Covenant concerning the right of accused

persons to examine, or have examined, the witnesses against them and to obtain the

attendance and examination of witnesses on their behalf under the same conditions as

witnesses against them. For the Working Group, this also constituted a violation of the

principle of equality of arms, fundamentally undermining the fairness of the trial. The

Government has failed to provide any reason for the use of such witnesses and has made no

11 General comment No. 32 (2007), para. 15, referring to article 14 (1) of the Covenant.

12 Human Rights Committee, general comment No. 35 (2014), para. 38.

13 General comment No. 32 (2007), para. 31.

14 Opinions No. 39/2020, No. 19/2020, No. 64/2019, No. 14/2019, No. 75/2018, No. 53/2018, No.

16/2018, No. 1/2018 and No. 24/2015.

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effort to ensure equality of arms by enabling the defence to put forward and challenge

evidence.15

60.

Consequently, the Working Group considers the detention of Mr. Rais to be arbitrary

under category III.

Disposition

61.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of José Aquiles Enrique Rais López, being in contravention

of articles 3, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and

articles 9, 14 and 26 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories I and III.

62.

The Working Group requests the Government of El Salvador to take the steps

necessary to remedy the situation of Mr. Rais 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 Covenant.

63.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. Rais immediately and accord him an

enforceable right to compensation and other reparations, in accordance with international

law,16 which must take into account how the arbitrary detentions have harmed not only his

dignity but also his assets. The Working Group urges the Government to terminate the

proceedings against Mr. Rais immediately.

64.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Rais

and to take appropriate measures against those responsible for the violation of his rights.

65.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on the independence of judges and lawyers, for

appropriate action.

66.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

67.

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 compensation or other reparations have been made to Mr. Rais;

(b)

Whether an investigation has been conducted into the violation of Mr. Rais’s

rights and, if so, the outcome of the investigation;

(c)

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;

(d)

Whether any other action has been taken to implement the present opinion.

68.

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.

15 General comment No. 32 (2007) and opinions No. 39/2020, No. 19/2020, No. 64/2019, No. 14/2019,

No. 75/2018, No. 53/2018, No. 16/2018, No. 1/2018 and No. 24/2015.

16 Working Group on Arbitrary Detention, deliberation No. 10 on reparations for arbitrary deprivation

of liberty, identifying the comprehensive reparations to which victims of arbitrary deprivation of

liberty are entitled.

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69.

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.

70.

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.17

[Adopted on 25 November 2020]

17 See Human Rights Council resolution 42/22, paras. 3 and 7.