May 1990 : United States GAO General Accounting Office Washington, D.C. 20548 National Security and International Affairs Division B-237513 May 29,199O w The Honorable George W. Crockett Chairman, Subcommittee on Western Hemisphere Affairs Committee on Foreign Affairs House of Representatives Dear Mr. Chairman: This report responds to your request that we examine U.S. and El Salva- doran efforts to improve the judicial system in El Salvador. Our objec- tives were to obtain information on the condition of the judicial system, review the purpose and impact of the US.-sponsored bilateral adminis- tration of justice program, and analyze the El Salvadoran government’s plans for and commitment to judicial reform based on the first 3 months of President Cristiani’s administration. We conducted our fieldwork in El Salvador in August and September 1989, during which time we noted a positive movement toward estab- lishing a working, apolitical peacetime judicial system. However, we are unable to draw definitive conclusions about the new administration’s plans for or commitment to reform. In early November 1989 the war intensified with the guerrilla offensive and the murder of six Jesuit priests, allegedly with El Salvadoran military involvement. These events will test the Cristiani administration’s commitment to reform in the area where critics contend it is most needed-eliminating human right abuses. The Department of State, the Agency for International Development, Background and current and former officials of the government of El Salvador have long recognized the serious problems that pervade the El Salvadoran judicial system. They all generally agree that the judicial system in El Salvador is politicized, inefficient, corrupt, antiquated, and under- financed, and does not deliver impartial justice to anyone-the poor, the wealthy, the political left or right, or the military. Even in times of rela- tive peace, systemic and political problems impede it from dealing with the most routine civil or criminal matters such as family fights or theft. During periods of national crisis or in response to a particularly serious crime, such as the highly publicized political murders, the country can- not rely on the system because of its weaknesses. Page 1 GAO/NSMD4WSi El Salvadoran Judicial System B-237613 In response to a series of political murders in the early 198Os, some involving U.S. citizens as victims, the Congress appropriated funds to initiate a bilateral program to “promote the creation of judicial investi- gative capabilities, protection for key participants in pending judicial cases, and modernization of penal and evident&y codes.” At the time the legislation was enacted, there was a strong expectation from some members of Congress and the executive branch that this pro- gram, along with other diplomatic initiatives, would lead to the prompt arrest and successful prosecution of those responsible for the political murders. Critics of the program now contend that because many of the political murders and cases of human rights abuse have not been resolved after more than 4 years “the program has failed dramatically.” Many of those who supported the program recognized the difficulty involved in fundamentally altering the manner in which El Salvador’s basic institutions function. U.S. Embassy and El Salvadoran officials informed us that prosecuting the perpetrators of political murders has continued to be a priority, but that the program also has a long-term developmental goal of building and sustaining confidence in the judicial system. According to the State Department, “the goal of the project is the institutionalization of practices that will increase the probability that cases of all descriptions will be decided on their individual merits.” We found that progress has been made in achieving the developmental Results in Brief goals of the program by improving the administrative functions of the courts, enhancing the technical capabilities to investigate crimes, updat- ing legal codes, and improving the overall professionalism of the system. Based on these improvements, we beheve the judicial system is clearly better now than before the program started. However, we also believe that efforts to “build and sustain” confidence in the judicial system will not have been fully achieved until those who commit politically moti- vated murders can no longer do so without running a very high risk of being apprehended and prosecuted. The U.S.-sponsored administration of justice program called the Judicial Reform Project, cannot solve all the problems of El Salvador’s judicial system-that will require a long-term, Salvadoran government political commitment assisted by outside financial, technical and diplomatic sup- port. Continued fighting in El Salvador, economic conditions and a Page 2 GAO/NS~Wl El Salvadoran Judichl System B-237513 highly polarized society suggest it will take years of sustained improve- ments before the system can be considered fully functioning and efficient. Nevertheless, the project has had a positive effect on the Salvador-an judicial system by helping to improve its efficiency, capabilities, and professionalism. For example, it has funded the development of the only well-trained and equipped criminal investigative and forensic units in the country; supplied the only training and reference materials available for many judicial personnel; initiated improvements in the management of the judicial system to speed the process; and backed the study and revision of outdated legal codes. If the program were discontinued, the small gains made would likely be reversed, and those denied due process for administrative or systemic deficiencies would suffer, and the deliv- ery of justice to ordinary citizens could be adversely affected. The condition of the judicial system is the result of many years of neg- Condition of the lect. The system’s codes are outdated and not consistent with the coun- Judicial System try’s current constitution, Department of State- and Agency for International Development-sponsored evaluations of the system found that many of the judges and others who try to make the system work are undereducated and undertrained. El Salvadoran government offi- cials acknowledge that the system allows prisoners to languish in jail for years without a trial or official documentation of their incarceration, partly because the system relies entirely on a slow paperwork process and is administratively ineffective. According to U.S. Embassy analyses of the judicial system, judges are poorly paid when compared to salaries of attorneys in the private sec- tor. Partly to accommodate for the low pay, the courts-except in the capital-work only half days to allow time for judges to earn outside income. Also, the number of public defenders is significantly less than required, which we found contributed to prisoners remaining in jail without trial for extended periods. We found that investigative and forensic capabilities are improving but are nonetheless still limited, forcing police to rely on confessions and eyewitness testimony for evidence. There have been documented cases where torture was used to extract confessions, and some human rights groups and government critics allege that torture continues to be used, Politics continues to dominate the judicial system. Both US. and El Sal- vadoran officials with whom we spoke stated that judges are appointed Page 3 GAO/NSIAD-90-81 El Salvadoran Judicial System E-237513 more for reasons of political affiliation or family ties than professional capabilities. Reports by human rights organizations, confirmed by our interviews with judges and others, indicate that pressure groups and threats of violence strongly influence the application of law. Conse- quently, many crimes, including human rights abuses, go unpunished. Further complicating the fair administration of justice is that El Salva- dor is fighting an insurgency while attempting to create a peacetime judicial system. The impact of the November 1989 guerrilla attack on San Salvador, for example, on the long-term prospects for judicial reform is unknown. The Judicial Reform Project is modestly attempting to address some of U.S. Efforts to the systemic problems that have impeded the delivery of justice and to Improve System create a more professional judiciary, less susceptible to political pres- sures. It is part of the overall U.S. effort to strengthen apolitical demo- cratic institutions. From its inception in fiscal year 1984 through fiscal year 1989, $13.7 million had been authorized for the Judicial Reform Project, although only $5 million was actually spent. Nevertheless, it has had some success, albeit small, given the debilitated condition of the judicial system. The project is currently composed of three components: (1) an El Salva- doran Commission on Investigations that oversees a Special Investiga- tive Unit (SIU) and a Forensic Laboratory established, trained and equipped to objectively and scientifically investigate serious crimes; (2) a Revisory Commission that studies and recommends changes in the legal system and codes; and (3) an Administration and Training compo- nent to improve the court’s administrative and technical capabilities. Commission on The Commission on Investigations has investigated and solved a number Investigations of politically motivated and other serious crimes. Due to the complexity of these cases, some of them might not have been solved had the unit’s ability to use sophisticated forensic techniques not existed. No other police investigative units in El Salvador possess the skill or equipment of the Commission. We analyzed its closed cases and found the investigations were con- ducted using methods and procedures prescribed for use by U.S. investi- gative organizations. Developmentally, the Commission is building the only scientific and technical criminal investigative capabilities in the Page 4 GAO/NSIAD-90-81 El Salvadoran Judicial System B-237513 country and, through forensic analysis of evidence, is attempting to combat the country’s overreliance on confessions to solve crimes. The Commission has fought attempts to interfere with its work, though it still depends on the politicians to allow it to work independently. While some political interference had occurred, we noted that such interference had declined. Consequently, the Commission is building a reputation as an impartial, professional, investigative unit. Other police investigative units are now beginning to request both direct assistance and training. The decline in political interference is positive, but U.S. Embassy and the investigative unit staff indicated that the absence of visible high- level government support of the Commission was hurting both their credibility and authority to conduct investigations. The current adminis- tration had not named its special appointee-who is to provide policy direction-to the Commission. Further, we were informed that only one of the two Ministers on the Commission has attended meetings. Given the high level of crime and human rights abuses in El Salvador, and the small size of the units, the Commission does not have the resources to investigate all serious crimes. As a result, disagreement continues over the types of cases the units should accept. Human rights organizations continue to express the view that the Com- mission has not investigated enough human rights abuse cases. U.S. and El Salvadoran government officials note that the Commission’s legal charter is to investigate any serious crime impacting the country, which included more than those involving human rights abuses. Our analysis of its closed cases indicated that the Commission investi- gated a variety of crimes, including baby stealing and selling, official corruption, and murder committed by both left and right wing extrem- ists We believe all of these crimes have a serious impact on the country. Revisory Commission The Revisory Commission was established to conduct a series of compre- hensive and critical studies of the legal framework for the Salvadoran judicial system and to develop and present draft legislation, incorporat- ing the findings of the studies to the legislative assembly. Based on their analysis of the judicial system, along with outside expert opinion, the Commission submitted 11 draft laws to the legislative assembly for Page 5 GAO/NS~90-81 El Salvadoran Judkial System E-237513 approval and an additional 11 draft laws were in various stages of Com- mission review. However, at the completion of our fieldwork in October 1989 only three draft laws had been adopted. In March 1990, the Agency for International Development advised us that four additional laws were passed by the legislative assembly, Politics and a preoccupation with the war have impeded passage of the Revisory Commission’s recommendations. However, the Agency for International Development believes that recent Commission success in passing some legislation, and gaining some high-level executive branch support is a posit.ive move. Administration and The administration and training component of the program seeks to Training Efforts address those administrative, skill, and facility deficiencies that have contributed to denying Salvadorans due process, and is the component least affected by the war and politics. This component is critical because sustained, impartial justice will not become available until a profes- sional judicial structure is established, even assuming the best will of the government. Thus, the United States is attempting to improve the court systems’ human resources, management capabilities, and physical conditions. Under this component of the project, training has been provided to all justices of the peace and, for the first time, reference materials such as code books and proceedings of the Supreme Court have been distributed to them. Methods are being designed to speed up the pre-trial process, improve record keeping, and track cases. In addition, El Salvador receives training through a regional Administration of Justice Program which supports the bilateral project. The impact of these various activities, however, will not be seen immedi- ately. Over time, administrative improvements in processing and pre- paring court documents may reduce time spent in pre-trial detention, and better records on prisoner release dates may reduce the number of inmates incarcerated after the completion of their sentences. Further- more, a better educated judiciary should hopefully result in rulings fol- lowing more closely the dictates of the law. The El Salvadoran judicial system continues to lack the ability to rou- Conclusions tinely deliver fair and impartial justice to citizens of that country. None- theless, the U.S.-sponsored judicial reform program has had a positive Page 6 GAO/NSIAD-90-81 El Salvadoran Judicial System - B-237513 effect on the judicial system by helping to improve its efficiency, inves- tigative capabilities, and professionalism. We believe that if the program were to be terminated, the small gains made would likely be reversed. Furthermore, such action may signal to the El Salvadoran government that the US. government is no longer interested in judicial reform. Con- sequently, we believe that the Department of State and the Agency for International Development should continue to work with the El Salvado- ran government and support its efforts to reform the judicial system. In commenting on a draft of this report, the Department of State and the Agency Comments and Agency for International Development agreed with our findings and Our Evaluation conclusions. They said the report was balanced, accurate, and fair in its presentation, and that the conclusions were sound. Both emphasized the long-term commitment required by the U.S. and El Salvadoran govern- ments to rebuild the Salvadoran justice system, The full text of their written comments are in appendixes V and VI. State and the Agency for International Development also indicated that a number of new initiatives have been instituted in El Salvador since we completed our fieldwork and that important and significant changes have occurred in El Salvador. State commented that the Cristiani gov- ernment’s resolve in pursuing the Jesuit murder case confirms its opin- ion that the El Salvadoran government is willing to work to reform the justice system, and that the United Sates should continue its assistance. State also pointed out that, since the completion of our fieldwork it assumed the management of the project activities related to investiga- tive and forensic development and judicial protection, in line with the division of responsibility between agencies that has evolved in adminis- tration of justice projects in other countries. Issues relative to the condition of the El Salvadoran justice system are discussed further in appendix I. Detailed information on our evaluation of the U.S.-sponsored Judicial Reform Project and the effectiveness of the units overseen by the Commission on Investigations is in appendixes II and III. Our specific objectives, scope, and methodology are in appen- dix IV. Copies of this report are being sent to the Chairmen, Senate and House Committees on Appropriations, Senate Committee on Foreign Relations, and House Committee on Foreign Affairs; the Secretary of State; the Page 7 GAO/NSIAD-90-81 El Salvadoran Judicial System B-237613 Administrator, Agency for International Development; and other inter- ested parties. This report was prepared under the direction of Harold J. Johnson, Director, Foreign Economic Assistance Issues, who can be reached on (202) 2755790. Other major contributors to this report are listed in appendix VII. Sincerely yours, Frank C. Conahan Assistant Comptroller General Page 8 GAO/NSIAD90-81 El Salvadoran Judicial System Page 9 GAO/NSlAb90-81 El Salvadoran Judicial System contents Letter 1 Appendix I 12 Judicial System in El Basis of the Judicial System 12 Systemic Problems Impede Delivery of Justice 13 Salvador Spurs U.S. Political Problems Inhibit Change 14 Reform Efforts Financial Problems Aggravate Situation 16 Events Leading to the Judicial Reform Project 17 Recent Events That May Affect Program’s Future 18 Appendix II 20 Overview of the Revisory Commission 22 Administration and Training Component 25 Judicial Reform Commission on Investigations 27 Project Appendix III -. 32 Technical Analysis of Organization 32 Training and Education 33 the Special Synopsis of Activities 34 Investigative Unit and Procedures for Opening Cases 34 Forensic Laboratory Analysis of Closed Cases 35 Professionalism of Investigations 37 Agreement on Methods to Improve Operations 38 Appendix IV 40 Objectives, Scope, and Methodology Appendix V 41 Comments From the Agency for International Development Page 10 GAO/NSIAD-90-81 El Salvadoran Judicial System Contents Appendix VI 47 Comments From the Department of State Appendix VII 51 Major Contributors to This Report Tables Table II. 1: Judicial Reform Project in El Salvador 21 Table III.1: Forensic Unit Analyses as of August 30, 1989 34 Table III.2: How Closed SIU Cases Were Opened 36 Table 111.3:Crimes Investigated by SIU as of August 30, 36 1989 Figure Figure III. 1: Organization of the Commission on 33 Investigations Abbreviations AID Agency for International Development AOJ Administration of Justice co1 Commission on Investigation FMLN Farabundo Marti National Liberation Front SKI Special Investigative Unit Page 11 GAO/IWAIMOBl El Salvadoran Judicial System Judicial System in El Salvador Spurs U.S. Reform Efforts There is no evidence that El Salvador’s judicial system has been func- tioning effectively. Political interference, a legacy of military control, overemphasis on paperwork and bureaucratic procedures, inadequate forensic and investigative capabilities, widespread corruption and intim- idation of judges, and insufficient staff and resources have contributed to its inadequacy, according to U.S. and El Salvadoran officials. The rise of the insurgency in the late 1970s and early 1980s and the increase in the level of human rights abuses further drove the system toward total collapse. In response to these events and the killings of US. citizens in El Salvador, the United States embarked on a program with the El Salvado- ran government to address some of the problems of the judicial system. This program represents only a fraction of the United States total eco- nomic and military assistance package aimed at fostering democratic institutions and supporting the government. The Salvadoran legal system is based primarily on a Napoleonic Code or Basis of the Judicial civil law system rather than the English Common Law system used in System the United States. 1Jnder their system, all law is statutory. As a result, the Salvadoran Supreme Court does not make law by its interpretations of an important case, and judges do not decide cases based on previous legal decisions; decisions are based entirely on legal codes as enacted by the Legislative Assembly. The Napoleonic Code system is considered inquisitorial, unlike the adversarial relationship between the prosecutor and defense attorney under the Common Law system. In El Salvador, judges, or the justices of peace, play a pivotal role throughout the judicial process. Depending on the severity of the crime, a Salvadoran justice of the peace may decide whether the evidence is sufficient to hold the accused for trial, and in lesser cases may make the decision on guilt or innocence. In rural areas of El Salvador, justices of the peace are the primary participants in the judicial process. From the time an arrest is made, continuing throughout the investiga- tion and during the trial, the judge’s duty is to gather sufficient evidence so that the truth becomes apparent. Judges direct the investigation, doc- ument the evidence, and make decisions based on that evidence. Under the Salvadoran system, evidence has no standing in the courts unless the judge ordered that it be gathered. Because of their enormous responsibil- ities in the judicial process it is critical that judges be properly trained and remain impartial Page 12 GAO/NStAD-90-81 El Salvadoran Judicial System Appendix I Judicial System in El Salvador Spurs U.S. Reform Efforts According to Department of State and Agency for International Develop- Systemic Problems ment (AID)-SpOnSOred evaluations, the judicial system is comprised of Impede Delivery of many undereducated and undertrained personnel. The requirements to Justice become a justice of the peace in most areas in El Salvador are that the individual should have a notion of the law, and not be blind or deaf. The Salvadoran government does not have a formal training program for justices of the peace. Consequently, they may decide cases and impose sentences without any true knowledge of the law. AID-sponsored evaluations of the judicial system determined that its administrative operations are deficient. Due to an overreliance on paperwork and strict bureaucratic procedures, the judicial process is slow, A trial cannot begin until the investigation is completed. All find- ings and evidence for the defense and prosecution must be in writing, and this process often takes years We found that a system of record keeping is practically nonexistent, resulting in prisoners remaining in jail either without official documentation or beyond the actual comple- tion of their sentence. Salvadoran officials acknowledge that they still do not have accurate records of those in prison. Investigative and forensic capabilities in El Salvador were primitive, and the codes provide only limited opportunities for admission of physi- cal evidence. A national police forensic laboratory we visited, for exam- ple, did not have the equipment, chemicals, or other materials required to conduct forensic analyses of evidence. As such, to convict a person of rape would require two eye witnesses or an admission of guilt from the accused. As a result, police have relied on confessions and eyewitness testimony to solve crimes. If a crime is committed by two or more persons, the testimony of one party against the other is not admissible evidence. However, the Salva- doran legal community is concerned that if it were to change the rule, co-conspirators might be coerced into testifying against one another. In 1983, the government of El Salvador adopted a new Constitution, which included articles granting additional protection of rights, and arti- cles to strengthen the judiciary by making it more independent from other branches of government. However, the Salvadoran legal codes have not been updated to conform to the 1983 Constitution. For exam- ple, the Constitution gives additional rights to the accused, but codes have not been updated to specify how those rights will be protected, The 1983 Constitution also states that a National Council for the Judiciary should be created, and be responsible for proposing to the Supreme Page 13 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix I Judicial System in El Salvador Spurs U.S. Reform Efforts Court, candidates for judge’s positions. Further, while the Constitution guarantees workers the right to organize, civil codes do not permit agri- cultural workers to do so. At the time we completed our field work in October 1989, a law creating the National Council for the Judiciary had just been enacted. U.S. government officials, as well as high-ranking Salvadoran officials Political Problems have acknowledged that political problems have impeded improvements Inhibit Change within the judicial process. While the judicial system in El Salvador has not been functioning effectively, the military’s continued role in the sys- tem, the ongoing political appointment of judges, the pressure exerted on judges by political extremists, and the war against the Farabundo Marti National Liberation Front (FMLN), have all contributed to its fur- ther deterioration. Historically, the military has played a powerful role in the judicial sys- tem, and continues to do so today. All public security forces, which include the National Guard, the National Police, and the Treasury Police are under the Ministry of Defense. El Salvador does not have a separate civilian police force. The three security forces are legally designated as auxiliary organs of the court to conduct investigations and gather evi- dence for the judge. The Salvadoran Criminal Procedure Code directs that the auxiliary organs of the court are subject to the authority of the judge and must carry out his instructions; however, because of the way the system actually works, these auxiliary organs lack the independence from the military forces to do so. Many accusations have been made about the security forces’ unresponsiveness to the requests of the courts, particularly when investigating a military member accused of a crime. The lack of a separate civilian police force, responsible to civilian authorities to investigate abuses of the security forces, has been cited by critics as a major flaw in El Salvador’s judicial system. El Salvadoran political leaders and a team of U.S. officials evaluating the judicial system noted that judges are almost always appointed because of their political affiliation or family connections rather than a professional, objective evaluation of their capabilities. Justices of the Supreme Court are selected by the Legislative Assembly, while the Supreme Court names Magistrates of the Second Instance (Appeals Court), Judges of lower courts, and Justices of the Peace. Salvadoran and US. officials stated that appointments are often based more on an assessment of the judges’ political loyalty. Page 14 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix I Judicial System in El Salvador SpursU.S. Reform Efforts Trying to make a peacetime judicial system function in a wartime situa- tion has further complicated the delivery of justice in El Salvador. The political polarization in the country has given rise to extremists from both sides exerting pressure, either through bribes or threats, on judges and other judicial personnel. Judges are afraid to investigate or prose- cute members of the El Salvadoran Armed Forces or the FMLN.For exam- ple, one rural judge we visited informed us that only hours before our arrival, the FMLNhad surrounded the house of a town official and subse- quently assassinated him. He doubted that anyone would come forward as an eyewitness out of fear for their lives, and that he himself feared for his safety if he opened an investigation. Another judge investigating Salvadoran military involvement in a murder case informed us that he and his family had received numerous anonymous threats and that, as a result, he always carried a weapon According to AID'S and State Department documented analyses, judges have been pressured by members of these groups to accept bribes in return for dismissing a case, or have had their own or their family’s safety threatened. Our interviews with Salvadoran judges confirmed that fear of extremists from both sides of the political spectrum affect their work. Over the years, torture has been used to extract confessions, especially in political cases. Some human rights groups allege that torture is still being used. Striking a balance between safeguarding an individual’s civil rights while fighting an insurgent group that is threatening the stability of the duly elected government has been another important issue in El Salva- dor. For example, at various times during the war, the government of El Salvador has declared a state of emergency and suspended some rights. At the time we were conducting our fieldwork in El Salvador, the state of emergency had been lifted and the country was operating under its normal constitutional provisions. However, a state of emergency was reimposed on November 12, 1989, following FMLNattacks on San Salva- dor and other cities. One particularly important provision of the 1983 Constitution is the rule for administrative detention, which specifically addresses the rights of the individual versus the rights of the state, and has been an issue of contention. The rule for administrative detention allows the security forces to detain a suspect for only 72 hours before bringing the individ- ual before a judge. During that 72-hour period, security forces must Page 15 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix I Judicial System in El Salvador Spurs U.S. Reform Efforts gather enough evidence to convince the judge that a suspect should be held for trial. The El Salvadoran military and others have criticized this provision because it hampers the government’s ability to jail suspected terrorists. Military and government officials have argued that, in a wartime situa- tion, the 72hour rule did not provide sufficient time to gather evidence and transport the suspect to the courts. As a result, military officials said that more than 90 percent of suspected terrorists were allowed to go free. In their opinion, it was necessary to extend the time period for detention to effectively fight the war. On the other hand, critics claim that the inability of a suspect to retain a defense attorney during the first 72 hours gives rise to torture and forced confessions. The November 12, 1989, declaration of a state of emergency automati- cally suspended some safeguard procedures in investigating criminal acts and allowed the security forces to detain suspects incommunicado for 15 days instead of 72 hours preceding their appearance before a judge. The El Salvadoran Assembly approved a series of anti-terrorist laws, which President Cristiani ultimately vetoed. The anti-terrorist laws would have restricted civil liberties, and according to human rights organizations, impeded freedom of speech. Under these laws, for exam- ple, a person could have been arrested for the crime of public intimida- tion for being at the site of a disorder or riot, unless the individual could show a reason for remaining in the area. Given the enormity of the problems, experts have concluded that the Financial Problems resources available to the Salvadoran judicial system are inadequate. Aggravate Situation The ongoing civil war has drained the country of both money and quali- fied personnel, thereby limiting the court’s resources. Though some improvements have been made (for example, funding for the court sys- tem has doubled), an AID evaluation acknowledges that underfinancing still has a direct, adverse impact on the delivery of justice. AID analyses concluded that a judicial career in El Salvador is not consid- ered prestigious. Judges’ salaries are very low, when compared to what attorneys earn in the private sector. As a result, judges depend on outside employment and are susceptible to bribes. The court work schedule from 8 a.m. to 1 p.m. is designed to allow time for outside employment so that judges, prosecutors, and public defenders can sup- plement their salaries with income from private practice. AID’Sjudicial Page 16 GAO/NSL~D!~OH)-81 Et Salvadoran Judicial System Appendix I Judicial System in El Salvador Spurs U.S. Reform Efforts assessment team was concerned that this may result in conflicts of inter- est between public and private activities. The courts in San Salvador only recently extended operating hours to a full-time schedule and increased salaries for employees to eliminate these practices, although courts elsewhere still remain on a part-time schedule. Funds for supplies, books, and maintenance of court facilities are extremely limited. At the sites we visited, court facilities were anti- quated and/or lacked basic supplies. Electricity and telephone service are found primarily in urban court facilities. Underfunding has also limited the activities of both the Public Defender’s Office and the Attorney General’s Office. Salvadoran offi- cials informed us that the number of public defenders is insufficient to assure that due process is given to the large number of individuals requiring legal assistance. They further told us that a public defenders program has been established, and has resulted in freeing about 2,000 people jailed for minor crimes but never tried. Nevertheless, they stated that another 5,000 people are in jail under similar circumstances. The shortage of prosecuting attorneys has resulted in delays in the pros- ecution of crimes. A human rights division was established in the Attor- ney General’s Office to prosecute alleged acts of abuse from all sides of the political spectrum, but there are only six part-time prosecutors to handle over 300 cases. One prosecutor told us that he could not manage his caseload, which often involved visiting remote sites, on a part-time schedule. The inadequacy of the El Salvadoran judicial system became apparent in Events Leading to the the United States when U.S. citizens were murdered in 1980 and 1981. Judicial Reform The victims, four American churchwomen and two U.S. land reform Project advisers, were targeted for their perceived role in assisting the insur- gents in the war. The inability of the judicial system to bring the perpe- trators of these and other human rights abuse cases to trial concerned members of the U.S. Congress, and a team of U.S. experts on Latin America was sent to El Salvador to evaluate the situation. They deter- mined that major improvements in the justice system were needed to prosecute persons guilty of politically motivated crimes. In response to the condition of the judicial system, the Congress man- dated, in November 1983, that $3 million of Economic Support Funds be made available for judicial reform projects in El Salvador. Specifically, Page 17 GAO/NSLAD-SO-81 El Salvadoran Judicial System Appendix I Judicial System in El Salvador Spurs U.S. Reform Efforts the funds were to “promote the creation of judicial investigative capa- bilities, protection for key participants in pending judicial cases, and modernization of penal and evidentiary codes.. .” A waiver of section 660(a) of the Foreign Assistance Act of 1961, which prohibited U.S. assistance to foreign police, was enacted to allow investigatory training for the Salvadoran public security forces. In July 1984, the first agree- ment for a Judicial Reform Project was signed with the government of El Salvador for $765,000. An amendment, signed in May 1985, added another $2.5 million to the project. In fiscal year 1985, $6 million was appropriated for the program. An additional $1.5 million in fiscal year 1989 and $3 million in fiscal year 1990 was designated for judicial reform out of the U.S. economic assistance program to El Salvador. In addition, the government of El Salvador also receives some training through a regional Administration of Justice Program. These efforts support the bilateral Judicial Reform Project. On November 11, 1989, the FMLNguerrilla organization launched a series Recent Events That of attacks against the capital and other cities in El Salvador. In the capi- May Affect Program’s tal, they attacked the President’s and President of the Legislative Future Assembly’s residences and National Guard headquarters. They took fixed positions in some of the poorest neighborhoods, so that many civil- ians were caught in the crossfire between the government and rebel troops. On November 12, 1989, President Alfred0 Cristiani declared a state of emergency and imposed a dusk-to-dawn curfew. Fighting continued throughout the country, and on November 16,1989, six Jesuit priests, their housekeeper and her daughter were murdered. The priests were respected intellectuals, who often spoke out in favor of social reforms supported by the FMLN, but who also more recently had become critics of the guerrillas’ tactics and supporters of the goals of President Cristiani. President Cristini strongly condemned these murders, and ordered an immediate investigation. As of January 1990, nine suspects had been identified, all of whom are members of the El Salvadoran Armed Forces; eight were placed under arrest, and one was still at large. After days of intense fighting, the rebel offensive appeared to subside somewhat, only to ignited again on November 21, 1989. The rebeIs attacked a luxury hotel (whose guests included both representatives from the Organization of American States and U.S. military} and upper- class residential neighborhoods that housed U.S. Embassy personnel, Page 18 GAO/NStAD-90-81 El Salvadoran Judicial System Appendix I Judicial System in El Salvador Spurs U.S. Reform Efforts Four days later, a planeload of surface-to-air missiles and other arms for the FMLNwas discovered, from which Salvadoran officials said they had sufficient evidence to implicate the government of Nicaragua in supply- ing arms to the rebels. On November 26, 1989, the government of El Salvador suspended diplomatic and economic relations with Nicaragua. On November 28,1989, the former president of the Supreme Court was assassinated. Salvadoran and U.S. officials said that considerable evi- dence existed to link FMLNsupporters to the murder. By h’ovember 30, 1989, it had become clear that the United States could not guarantee the safety of its citizens in El Salvador, even though they were not specific targets of the insurgents. As a result, many U.S. Embassy employees and their dependents temporarily left the country. Page 19 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project The bilateral administration of justice program, called the Judicial Reform Project, is currently composed of the following components. . The Revisory Commission for Salvadoran Legislation-known in El Sal- vador as CORELESAL-was established to coordinate reform efforts and focus on revising those procedures and laws that will improve the judicial system. From fiscal year 1984 through fiscal year 1989, AID had designated $2.2 million for this segment, of which it had obligated $1.5 million, and expended slightly over $1 million. l The Administration and Training component is intended to improve the court system’s human resources, administrative management, and phys- ical facilities by extensive training of judges and other court personnel, and providing funds for physical improvements. For the fiscal years 1984 through 1989, the United States designated $4.2 million for this portion of the program; however, AID had obligated only $1.9 million on specific projects, and actually spent only $0.6 million. l A Commission on Investigations was established to oversee a Special Investigative Unit (SIIJ) and a Forensic Unit, which are to investigate serious crimes, using modern scientific and investigative procedures. For fiscal year 1984 through 1989, $5.1 million was designated for this com- ponent, all of which had been obligated, and $2.3 million had been spent as of September 30, 1989. In response to the need for protection of jurors and key participants in high-profile judicial cases, a Judicial Protection Unit was also estab- lished as part of the program. In 1984, a 60-man security unit was trained to provide protection for the participants in the U.S. churchwomen’s trial,] The unit was used again in February 1986 for the Sheraton case trial,” However, since that time, it has been dormant, Although $1.2 million was set aside for this component, only $0.5 mil- lion had been spent. The remaining $0.7 million is being held while the entire concept of the unit undergoes review. AID has recognized that an Individual Protection Unit, as originally envisioned by the United States, may not be feasible in El Salvador. From the outset, the Unit suffered from design problems. ‘The trial involved five members of the Salvadoran Guardia National (National Guard) accused of raping and murdering four American nuns in 1980. The necessity of physical protection for the par ticipante of sensitive trials was identified by a U.S. judicial assessment team in April 1983. ‘The Sheraton case involved the murder of the Salvadoran head of the land reform program and two U.S. land reform consultants in January 1981, reportedly by two members of the Salvadoran National Guard acting on the commands of their superior officers. Page 20 GAO/NSIADso-Sl El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project In addition to the money set aside for each component, AID also desig- nated $1 .I million for miscellaneous project-related activities, such as AID project administration, and audits and evaluations. All this amount had been obligated and $0.6 million had been spent as of September 30, 1989. Table II. 1 highlights the purpose, plan, and funding of the Judicial Reform Project components. Table 11.1:Judicial Reform Proiect in El Salvador Commission on Investigations Judicial Administration Legal Revisory SNJ and Training Judicial Protection Unit Commission .-- Forensic Lab ____- Purpose To improve the court To provide security for To Improve the legal To develop criminal system’s administrative partlcipanls in volatile, performance of El investigation capabilities, management, human high-profile criminal cases, Salvador’s judicial system supported by crime lab resources, and physical including judges, through revisions in the facrlities in order to facilities. witnesses, prosecutors, laws. provide impartial -- and jurors. ~-____I-_ ~. evldentiary resources. Implementation plan -Conduct court system -Train and equip a 60.man -Carry out analytical -Establish, train, and equip management assessment. protective unit to function studies on criminal and a 30.man team for special on regular basis for civil reform. investigations selected trials. -Develop and Implement -Draft and submit - -Establish, staff, and equip comprehensive judicial legislation to implement a laboratory for crime infrastructure. the recommendations of detection and evidence such studies. analvsis Dollars in thousands -_____ --_ Date of implementation Summer 1985 --~~- Summer 1984 Septem be; i 985 --- July 1985 .______ Funding-.-~_-~~~ __ _ -~ .-___I us Contnbution: $4,174.3 -_____-~ $1.161 4 52,226.B $5,062.5 -. -____~~_ ~ ~__~. -GOES Conlrlbution, 6,285.0 934.6 -980.4 2,040.5 Total $10,459.3 $2,096.0 $3,207.2 $7,103.0 Several factors explain why only $5 million of the $13.7 million desig- nated for judicial reform programs in El Salvador for fiscal year 1984 through 1989 had actually been spent. AID informed us that’initial dis- bursement of funds was delayed pending negotiation of a project agree- ment with the government of El Salvador. Implementation of the administration and training component and Revisory Commission was further delayed until a diagnostic study of the judicial system could be Page 21 GAO/NSKAD-90.81 El Salvador-an Judicial System Appendix II Overview of the Judicial Reform Project completed. The 1986 earthquake, which destroyed many court build- ings, also impeded the start of judicial reform programs which are dependent on judicial infrastructure, Land disputes stalled disbursement of funds for the forensic laboratory. Finally, according to AID, the $4.5 million designated for the program for fiscal years 1988 and 1989 had been on hold, pending our initial evaluation of the project in September 1989; $1.5 million was released at that time. The government of El Salvador has contributed to the judicial reform program the equivalent of $10.7 million in local currency generated through U.S. economic assistance programs. For fiscal years 1984 through 1988, it contributed the equivalent of $5.1 million, of which $5 million had been expended, and in fiscal year 1989, the equivalent of an additional $5.6 million. More than half, or $6.2 million, of its total con- tribution has been earmarked for improvements in judicial administra- tion and training. Just over $2 million supports the SIU and forensic laboratory, with $1.9 million shared nearly equally between the Revi- sory Commission and the now defunct protection unit. It has also desig- nated $ .5 million for miscellaneous project costs such as construction. In additional to the bilateral project, the government of El Salvador receives U.S. technical training and evaluation through a regional Administration of Justice Program. Government judicial and investiga- tive personnel, for example, have attended seminars and training spon- sored by the U.S. Department of Justice’s International Criminal Investigative Training Assistance Program. The Justice Department pro- gram is chartered to strengthen the administration of justice in Latin America and the Caribbean, primarily by improving investigative capa- bilities and providing management training and police academy curricu- lum development. The Revisory Commission was established to conduct a series of compre- Revisory Commission hensive and critical studies of the legal framework for the Salvadoran justice system and to develop and present to the Legislative Assembly draft legislation incorporating the findings of the studies. A critical ele- ment was its review of the specific provisions of the new 1983 Constitu- tion and how they apply to existing codes applicable to each area of law-criminal, civil, and administrative. In effect, the Commission sought to design a complete overhaul of the system so that it would be objective, professional, and self-sustaining in the long-term. Its role has been complicated, however, by the need to also address laws applicable to wartime situations and competing legislation. Page 22 GAO/NSIAD-SO-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project The Commission was established as a lo-member body, including repre- sentatives from the Ministries of Defense and Justice, the fublic Minis- try, Supreme Court, law faculties and attorneys organizations, with a full-time staff of 49. Efforts to Date The first project was a diagnostic study of the judicial system. Recom- mendations resulting from this study were presented to a group of 216 lawyers for analysis, and from this a planning document was developed to determine which laws needed priority review. The first priority was the penal code (including procedural laws), followed by civil codes, and finally the administrative aspects of the system. The following 11 draft laws have been submitted to the El Salvadoran legislature, l Definition of a Small Farmer - to facilitate the acquisition of surplus lands under the agrarian reform program. l State of Exception Procedural Law - to replace Decree 50.3 This law sets forth the procedures to be applied in trying crimes against the state and crimes of international importance when the Legislature has declared a state of emergency and normal procedures are suspended. The draft law seeks to create a balance between the need to preserve the stability of the government and the need to protect the rights of the individual under these exceptional circumstances. l Amendments to the Criminal Code, the Criminal Procedure Code, and the Code of Military Justice - to accelerate the processing of criminal cases and to conform certain laws to the 1983 Constitution. l Use of Surname Law - to implement a new constitutional principle and to eliminate discrimination against women, and children born out of wedlock. l National Council for the Judiciary - to provide the legislative framework for implementing the 1983 Constitutional requirement to create a coun- cil that would propose to the Supreme Court, candidates for judgeships of lower courts. The objective is to inject an element of merit selection in the appointment of judges and reduce the political nature of the judiciary. l Reforms to the Jury System and Trial Phase of Criminal Procedure - to accelerate the processing of criminal cases. l Reforms to the Constitutional Procedure Law -to conform it to the 1983 Constitution. 3Dec~ee50 went into effect again following the declaration of a State of Emergency on November 12, 1989 Page 23 GAO/NSIAD-90-81 El Salvadorau Judicial System Appendix II Overview of the Judicial Reform Project . Procedural Law for the Imposing of Arrests and Administrative Fines - to ensure that administrative authorities, who, under the 1983 Constitu- tion, have the right to arrest and impose fines in certain cases, follow procedures that protect the rights of the individual. l Adoption Law - to modernize existing law, and to provide greater pro- tection for the children involved. . Amendments to the Criminal, Criminal Procedure, and Minors Codes in Relation to the Family and Minors - to give greater protection to minors than is currently available. l Amendments to Criminal Procedure Code - to allow individuals to appeal a judge’s decision to reverse or nullify a prior decision by another judge. Eleven other draft amendments and studies remain in various stages of preparation or review. The Revisory Commission has been criticized by some groups for its selection of laws to review. Some human rights groups, for example, said that the Commission should concentrate first on laws and legal pro- cedures that would make the prosecution of human rights abuse cases easier. However, after analyzing the system, and conducting open forums with law school faculties, political and civic groups, the Commis- sion said it believed the areas identified for intensive study were the most important issues. A former El Salvadoran Attorney General stated that the Commission’s proposals would resolve many of the problems in the system. Opinions differed, even among organizations and individuals generally skeptical of the El Salvadoran government’s efforts to reform, on whether appropriate choices were made. For example, one US. human rights group criticized the Commission for not addressing the military’s role in the legal system, and the military service code. This group believed that reducing the power of the military to alleviate instances of human rights abuses should be a priority. On the other hand, another human rights organization in El Salvador appeared to be in closer agree- ment with the Commission’s choices, stating that the civil code was most in need of revision, This group noted that the dissolution of the family and the inability of the legal system to require fathers to care for their illegitimate children is one of the most crucial social problems facing the nation. Another Salvadoran human rights activist stated that changing the law to protect the individual’s rights such as freedom of speech should be a priority concern. Given this divergence of opinion, we could not conclude that errors were made in choice of issues for review. Page 24 GAO/N&ID-SO-81 EL Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project Need to Move Changes As of September 1, 1989, the Assembly had acted on only one of the 11 proposals it had received from the Revisory Commission. This was a Through Assembly time-critical proposal defining a small farmer, and was needed to imple- ment agrarian reform. However, In September and October 1989 the Assembly approved two other proposals, one to amend procedural codes on appealing a judge’s decision to reverse another judge’s decision, and another to establish the National Council for the Judiciary. In commenting on this report, AID stated that after the completion of our fieldwork in October 1989, the Salvadoran legislature approved four additional laws, They are the State of Exception Criminal Procedure Law, approved in November 1989; the Criminal, Criminal Procedure, and Minors Codes, approved in February 1990; the Use of the Surname Law, also approved in February 1990; and the Procedural Law of the Imposing of Arrest and Administrative Fines approved in March 1990. Salvadoran and U.S. officials suggested several reasons for the Assem- bly’s lack of action, First, the Assembly is composed largely of non-law- yers who have neither the training nor permanent staff to help them deal with complicated revisions of legal code. Second, the proposals require some people to give up power, which is unacceptable to them. Finally, Commission members lack political support from the executive branch, and are not experienced in lobbying within the legislative arena. AID believes that the Commission should now concentrate its resources on passage of its proposals. Otherwise, their work could basically amount to academic exercises. Commission members with whom we spoke recognized the need to move their work into the legislative arena and said that they would be designating staff specifically to work on this issue. The Minister of Jus- tice, who is responsible for studying and proposing revisions to the law, was designated to coordinate all Commission activities+ AID has informed us that the Supreme Court, the Attorney General, and the Solicitor Gen- eral have all committed themselves to support adoption of the Commis- sion revisions. The Administration and Training component of the program seeks to Administration and address those systemic deficiencies that have contributed to denying Training Component Salvadorans their due process, and is the program component least affected by politics or the war. It is a critical component, since both U.S. and El Salvadoran officials agree that sustained, impartial justice will Page 25 GAO/NSLAD-W-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project not become available until a professional judicial structure is estab- lished. Without such a structure, even assuming the best will of the gov- ernment, impartial justice would occur more by chance than as an expected result of the judicial process. Thus, this component was designed to address weaknesses in the court system’s human resources, administrative management capabilities, and physical conditions by pro- viding funds for technical assistance, increased operating budgets, phys- ical improvements, equipment, and short-term technical training. El Salvadoran government funds were programmed to strengthen the Attorney General’s Office, reopen the Public Defender’s division, and establish a printing office for the court. Component Outputs We found that the program had provided very basic training to justices of the peace and others involved in the judicial system, as well as refer- ence materials and equipment essential to the El Salvadoran judicial sys- tem. AID had determined that many justices of the peace operated without even a code book for reference on sentencing, As a result, the courts established a printing press so that, for the first time, copies of the code book are in the hands of the justices. Further, three legal refer- ence libraries have been established. Since the government of El Salvador did not have training courses for its justices of the peace, and except in the capital city there were no educa- tion or training entry requirements, U.S. funds supplied the only train- ing many of the justices have ever received. At the time we completed our field work, all of the 300 justices of the peace had received a 3-day course on the resolution of cases and court procedures. Of this number, 50 had also participated in a specially designed course in the United States to orient them on their role as justices in a civil code system. Other courses have been designed for higher-level judges, and represent- atives from other countries with similar civil code systems have advised or trained, or are planning to advise or train the justices on methods to improve their work. Administrative improvements underway are designed to speed up the pre-trial process and improve record keeping in areas such as prisoner roils. A case tracking system is being implemented in an attempt to both speed up trials and maintain important data, such as dates for comple- tion of sentences. Page 26 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project An AID official stated that plans to repair court facilities with project funds were put on hold because of the 1986 earthquake, which devas- tated the judicial center in San Salvador. The center, which housed all of the justices of the peace and higher-level judges in the city, has beers replaced with AID-financed temporary facilities until a new permanent center can be built, with the assistance of the World Bank. Impact Will Be Long-Term While the outputs of this component are easily identifiable, the effect on the judicial system is more difficult to measure and will be seen only in the long-term, AID objectives are that, over time, administrative improvements in processing and preparing court documents will reduce the number of people and amount of time spent in pre-trial detention by speeding up the process. Improved record keeping on prisoners should reduce the number of inmates still incarcerated after having served the full term of their sentence. Also, a better educated judiciary would hope- fully result in rulings that more closely adhere to the law. The Commission on Investigations (COI) was formally established by El Commission on Salvadoran decree on July 4, 1985, to Investigations “study, authorize, and order the investigation of all those criminal acts which by their nature, quality of the victims or perpetrators of the act, through the means employed to execute them, by their incidence in the public conduct and on the national conscience, will have grave repercussion on the public and social order of the country.“” The government’s objective was to create an organization under civilian control that had the expertise to develop physical, scientific evidence, objectively investigate crimes, and professionalize the criminal investi- gative process. Our analysis of COIactivities indicates that it has devel- oped into the professional, objective organization envisioned, although it is still not sufficiently isolated from outside interference, and critics con- tinue to be concerned that human rights cases are not being given high enough priority. Structure of CO1 The COI is composed of three civilians: the Minister of Justice, the Vice- Minister of Interior, and a Presidential appointee who provides policy guidance to the ~01’s two operational units-the Special Investigative Page 27 GAO/M&ID-90-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project Unit (SW) and the Forensic Unit also called forensic laboratory. An exec- utive director, who is an active duty colonel in the El Salvador-an Armed Forces, manages the SIU and the laboratory. The SIUis composed prima- rily of 24 public security force investigators and 4 civilian attorneys, and is responsible for conducting the actual investigations of criminal activity. The laboratory has 24 technicians, assigned from the public security forces, and 8 civilian scientists, who are all specialists in foren- sic areas and assist the SIIJ and other investigative organizations in the collection and scientific analysis of evidence. Role of the CO1 The COIis an investigative agency only, and is not involved in prosecut- ing suspects, Once it has completed an investigation, it submits the evi- dence to a judge, who determines if the evidence is sufficient to hold the suspects for trial. Unless the judge requests additional investigations, the COIis no longer involved in the prosecution of the case. Capabilities of the SIU and The SIU and the forensic laboratory have the only well trained and well- the Forensic Laboratory equipped investigative units in El Salvador, and have demonstrated the ability to professionally and objectively investigate a wide variety of cases. At the time we completed our field work, the SIU had investigated 87 cases, 49 of which were closed. These cases range from a baby kid- napping ring to suspected political murders committed by the military, and can be generally categorized as l corruption, 9 kidnapping, l extortion, l political killings by the FMLN, and l political killings by the military. The majority of the closed cases initially had been opened by COI,or by the executive director of the investigative units. The forensic laboratory has supplied technical support for the SK?and other police investigations on hundreds of occasions. For example, using photographs, it has analyzed the scenes of crimes, and has conducted ballistic, fingerprint and physical-chemical analysis on evidence. As the best forensic laboratory in the country, it is called upon to investigate high-profile and serious cases, such as the assassination of the Jesuit priests. Page 28 GAO/NSIAD90-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project Our analysis of SW’S methods and procedures indicate that it used sound investigative and forensic techniques prescribed for use by U.S. investi- gative agencies, such as in information gathering, use of informants, and tracing weapons used to the criminals. Some of these investigations were very complex and may not have been solved if the units were not so well trained and well-equipped. More detailed information on the SIU and laboratory, and a technical evaluation of their capabilities are included in appendix III. Independence Has Been U.S. experts on investigative organizations have recognized indepen- dence from outside interference as an important standard for an investi- Threatened gative unit, Interference with SIUmight come from a civilian official in the government or directly from the military. We were informed of two instances under the Duarte administration where the independence of the unit was threatened. One instance involved an investigation that implicated persons close to the administration in acts of corruption, and a high-level civilian admin- istration official. The administration official wanted to review the case himself and asked that no further action be taken by the SIU during that time. The Executive Director complied, but also indicated he would nev- ertheless arrest the suspects if they attempted to leave the country. Soon after this meeting, the Executive Director was ordered to relin- quish his command and leave the country within 2 weeks to attend school in the United States. The order was rescinded only after the U.S. Ambassador learned of the threat and interceded with El Salvadoran officials. The subjects were subsequently charged with the crime. The attempt to interfere with the work of the SIUoccurred in 1988 dur- ing an investigation of 10 individuals found murdered in San Sebastian after having been interrogated by the military. The official Armed Forces version was that these individuals had been killed by a guerrilla ambush while en route to the military compound. SIUinvestigators informed us that within a few days of their informal investigation, they had evidence that implicated military members rather than the guerril- las in the deaths; however, an in-depth investigation was stalled for months. We were informed by U.S. officials that during this period, President Duarte and the military reached an informal agreement that no investigation of the military would occur without the President’s per- sonal knowledge and consent. It was not until Vice President Quayle’s visit, in February 1989, that President Duarte and the COI members came Page 29 GAO/NSIAD90-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project out in support of the investigation, and the SIUcompleted its investiga- tion. Based on SIU’Swork, nine military members were arrested, includ- ing an intelligence officer with the rank of major. As of January 1990, they were all awaiting trial. Since most of the SIUand laboratory staff are active duty members of the Public Security Forces (police) of the El Salvadoran Armed Forces, and are dependent upon the military for promotion and assignment, the potential for both subtle and overt attempts to influence an investiga- tion of the military is ever present. We specifically asked if any such attempts had occurred and were informed by the SILTExecutive Director that none had. Further, during the time of our review, we did not hear of any attempts by the Cristiani administration to interfere with the operations of the unit. More El Salvadoran U.S. Embassy and investigative unit staff believe that the absence of visible high-level government support of the COIwas hurting both their Support Needed credibility and authority to conduct investigations. Since the Cristiani administration took office in June 1989, overt support for the COIhas not been as evident as AID and the investigative units had hoped. We were informed that President Cristiani had not named his special appointee to the COI, and that only one of the two ministers, the Minister of Justice, had been attending the weekly meetings to review the activi- ties of the units. Official government attendance at these meetings would demonstrate support for the SIUand laboratory investigations, and signal to affected parties such as the military or other government officials, the importance of assisting the units and complying with their demands. Debate Persists on Since its inception, the COI’Sobjectives have been debated. Some contend Objectives and Success of that it was formed primarily to deal with the alleged military sponsored murders, while others believe it was formed to include all serious crimes the CO1 and to serve a developmental purpose. Human rights organizations gen- erally believe that COI’Sprimary purpose is to investigate serious viola- tions by the El Salvadoran Armed Forces. Because the COIhas investigated many cases other than those indicating human rights viola- tions, these organizations contend that it has been a failure. US. and Salvadoran government officials believe that COIwas formed to investi- gate all serious crimes, and they are more positive in their evaluation of the unit’s success. Page 30 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix II Overview of the Judicial Reform Project The formation of the COIwas tied directly to the political murders that occurred in the early 1980s. It was perceived by some of its supporters to be the immediate answer to the system’s inability to investigate and bring to trial the murderers of Archbishop Romero and the US Churchwomen, and to specialize in human rights abuses, On the other hand, U.S. officials were pushing for the investigation of all serious crimes, including those against U.S. citizens such as the 1985 murder of U.S. marines, whose murderers were assumed to be members of one of the guerrilla organizations. AID saw the COIalso as a long-term develop- mental project. Against this backdrop of somewhat conflicting opinions, the SIUand the laboratory began to form in 1984. Although AID was the U.S.- sponsor organization, it could not move fast enough to set up the unit, As a result, the Department of Defense provided $120,000 for equipment, training, and operation of the SIU from January to July 1984, when AID began supporting the project. AID defined the SIU’Sobjective broadly by stating that it was “designed to carry out more professional, scientifi- cally conducted investigations of difficult and important cases.” Subsequent AID and State Department documents refer to SIU investiga- tion of “notorious” crimes and its purpose as to: “develop criminal investigation capabilities, supported by crime laboratory facilities, so that the courts will have access to impartial evidentiary materials and expert testimony which are needed to apply the law and impart justice effectively.” There was no specific reference to exclusively investigating human rights crimes. The El Salvadoran implementing legislation, high- lighted earlier in this section, also took a broader view of the SIU role. Nevertheless, human rights organizations still criticize the units for poor case selection when, as one organization stated, it was “mandated to focus on human rights.” However, as noted previously, AID project papers did not refer to such a specific mandate. While we agree that political murders obviously cannot be condoned or go unpunished, we cannot conclude that such crimes are more important or have greater national significance to El Salvador than, for example, a baby kidnap- ping and selling ring, or official corruption. Page 31 GAO/NSLAD-90-81 El Salvadoran Judicial System Appendix III Technical Analysis of the Special Investigative* Unit and Forensic Laboratory We analyzed the technical capabilities of the SIU and the forensic labora- tory by reviewing closed and selected ongoing cases, based on factors such as method of opening cases, investigative procedures used, train- ing, and dedication of staff. Further, we examined the portfolios to determine if most of SIUand the laboratory cases conformed to the crite- ria established by El Salvadoran decree as being of significant impor- tance to the country. Overall, both the SIU and the laboratory fared well. While recognizing that they are still relatively new and small units, they have nevertheless proven themselves professional investigative organizations. An Executive Unit is responsible for managing the SIUand the forensic Organization laboratory. The Executive Unit consists of the Executive Director, which currently is filled by a Lt. Colonel; a deputy, and the legal and the administrative groups. The legal staff consists of a chief and 4 lawyers, who provide legal advice to the investigators; the administrative group handles the unit finances, including regular salaries, danger pay, and payments to confidential sources. A lieutenant supervises the activity of the investigative unit, composed of 24 investigators and 8 paralegals, who assist the investigators in taking depositions. (See figure III. 1.) All investigators and the Director are recruited from one of three public security forces in El Salvador-the National Guard, Treasury Police, and National Police, because only members of these forces are consid- ered auxiliary units of the courts and therefore able to present evidence to the courts. The forensic laboratory is supervised by a lieutenant, who oversees the activities of 8 technical specialists and 24 technicians in the following sections: drafting, ballistics, fingerprinting, photography, and polygraph. Page 32 GAO/NSWWl El Salvadoran Judicial System Appendix III Technical Analysis of the Special Investigative Unit and Forensic Laboratory Figure 111.1:Organization of the Commission on investigations COMMISSION ON INVESTIGATIONS - Minister of Justice Vice Minister of Justice Presidential Appointee EXECUTIVE UNIT Deputy Director Administrative Staff I FORENSIC UNIT SPECIAL INVESTIGATIVE UNIT Chief Drafting Chief Fingerprinting Investigators Polygraphy Paralegals Ballistics Photography &Graphics \ Members of the SIU and the Forensic Unit have received a total of 48 Training and training courses, between 1985 and August 30, 1989. These courses Education range from basic criminal investigative techniques to white-collar crime seminars, and include techniques-such as visual investigative analysis, which is a sophisticated flow chart of the major events and people involved in a crime. The investigators and technicians are all members of the public security forces with previous investigative experience, and are permanently assigned to the units. The civilian laboratory specialists are all college graduates with 3 years of related experience, and are now taking a one-year course in forensic criminology in the United States. At the time of our review, the Forensic Unit was also planning to give training to judges, police, human rights commissions, and prosecutors to improve the country’s overall investigative capabilities. The first course was planned for prosecutors. AID responded in their comments that the unit now offers a training program to both the Attorney General’s Office Page 33 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix III Technical Analysis of the Special Investigative Unit and Forensic Laboratory and the Court to familiarize them with the types of physical evidence that can be developed, and the technical capabilities of the laboratory. As of August 30, 1989, the SKI had conducted 87 investigations, divided Synopsis of Activities into the following categories: (1) 10 cases under active investigation; (2) 28 suspended cases because of a lack of evidence or awaiting new infor- mation; and (3) 49 closed cases because they had been referred to the courts for judicial proceedings, or because a decision had been made by the SW that the case could not be solved. The Forensic Unit has analyzed evidence in a wide variety of cases investigated by the SIU,police investigative units, and judges. As of August 30, 1989, it had performed 2,078 analyses, as shown in table III. 1, Forensic Unit officials informed us that they are receiving an increasing number of requests for help from outside the SIU, as the qual- ity of their work becomes known throughout the country. Table 111.1:Forensic Unit Analyses as of August 30, t 989 We Number Photography 1,054 Sketch Artrstry 417 Polygraph 230 Ballistics 104 FingerprInts 96 Graphics --^ 87 Mtcroanalysls 33 Forensic Medune .- 29 Physlcal Chemistry 28 Total 2.078 The SIUcan open cases officially in one of two ways. First, it can initiate Procedures for a case and then within 72 hours, notify the COI, which can either Opening Cases approve or disapprove the decision. Secondly, on its own authority, or through the direction of the President of the Republic, or from a petition of other government agencies, such as the Government Human Rights Commission, the COI can order s11rto begin an investigation. In addition, we found that the s~rrhas informally begun investigations before the for- mal opening of a case. For example, an SIlr investigator informed us that they were at the site of the murders in San Sebastian within 2 days of Page 34 GAO/NSIAD90-81 El Salvadoran Judicial System Appendix III Technical Analysis of the Special Investigative Unit and Forensic Laboratory their occurrence, on September 21, 1988, even though COIdid not order the investigation until November 14, 1988. By decree, cases are opened when the crime is thought to be of grave national significance. In some instances, cases were opened under this criteria only to discover that the crime was not of national importance, For example, a 1986 murder of a citizen in San Bartolo was thought to have been committed by elements of a military unit called the BIRI-Bel- loso; it was later proven to be a band of common criminals. In another instance, a suspected murder was proven to be suicide. A more recent case involved the shooting of an American nun. The investigative unit opened the case based on the US. Embassy’s concern that the military may have been involved, because the nun worked at an orphanage that cared for children of the guerrillas. However, the inves- tigation determined that the shootings were done by common criminals, with robbery as their motive. The Executive Director indicated that there is a trend toward self-initia- tion of cases by the SIU.Of the 10 active cases under investigation, as of August 30, 1989,7 had been opened by the Executive Director, 1 was opened by order of the President, and 2 were opened at the request of AID; none were opened by the COI.The Executive Director stated that the COIhas never prohibited SII: from self-initiating an investigation. It is particularly important that SK: open cases on its own initiative, so that it may quickly seal off the scene of the crime and ensure that no one tam- pers with the evidence. We analyzed a number of the closed cases to obtain a better understand- Analysis of Closed ing of the SILJ’Soperation, and to address questions that have been raised Cases in the public forum about its operation. An analysis of the 49 closed cases indicates that they were opened in several ways, but generally by order of the cot or the Executive Director. (See table III.2.) Page 35 GAO/NSIAD90-81 El Salvadoran Judicial System Appendix III Technical Analysis of the Special Investigative Unit and Forensic Laboratmy Table 111.2:How Closed SIU Cases Were Opened Initiator Number Ordered by the President of the Republic 5 Ordered by the Commission/Executive Director 32 Requested by Minister of Health 1 Requested by the Government’s Human Rights Commission 6 Requested by Mimster of Defense 4 Requested by Vice Minister of Interior 1 Total 49 Types of Cases and The types of crimes involved in these 49 closed cases include, among others, murder, kidnapping, embezzlement, illegal adoption, and serious Resolutions wounding-with murders accounting for nearly half. (See table 111.3.) Table 111.3:Crimes Investigated by SIU as of August 30,1989 Crime Number Murder 24 Suspected political left (5)a Suspected political right or military (6) Non-political or unknown perpetrators (13) Kidnapping 6 Embezzlement .- 3 Illegal adoption 4 Missing persons/iliegal detention 3 Extortion - 2 Serious woundtng 2 Suicide, robbery, threats, escape from prison 5 Total 49 Ylne case included an individual killed in a confrontation between government and FMLN troops Our analysis of the 24 homicide cases suggests that because of the prom- inence or position of the individual killed, or the circumstances sur- rounding the crime, SIIJ might have justifiably believed them all to be politically motivated. However, SIU was able to show that 11 cases were not political murders, and in 9 of these cases, was able to identify sus- pects. In 11 other cases that the SIU could prove were political assassina- tions, they were also able to identify suspects; in most of these cases, the suspects were captured and turned over to the appropriate judicial authority. One notable exception is the case involving the assassination of Archbishop Romero in 1980. While the SIUwas able to identify the individual suspected of ordering the assassination, he remains free in Page 36 GAO/NSJXBO431 El Salvadoran Judicial System Appendii III Technical Analysis of the Special Investigative Unit and Forensic Laboratory . the United States because the government of El Salvador has not requested his extradition. A general amnesty for political crimes has also affected the resolution of SIU cases. One group awaiting trial for the murder of a National Police agent and attempted kidnapping of the former President’s daughter has been released from prison. Jailed, suspected murderers of US. Marines are arguing that they too should have been released under the amnesty provisions for politically motivated crimes. The SIU was unable to identify the individual perpetrators of the crime and in only three of the closed homicide cases, and was generally suc- cessful in identifying and capturing suspects in its other cases. For example, it was able to identify and capture the leaders of baby stealing and illegal adoption rings. Further, the unit identified kidnappers, and was able to capture corrupt public officials who were stealing public funds. In reviewing cases, we found that the SILJhad used modern, sophisti- Professionalism of cated techniques, such as ballistics, electronic and physical surveillance; Investigations photography; informants; crime scene sketches and analysis, suspect sketching from eye-witnesses; records checks and analysis; and witness interviews. The laboratory had sufficient equipment and expertise to conduct its analyses and to ensure quality control. As an added precaution for poly- graph examinations, the laboratory followed a policy of outside reviews advocated by U.S. investigative agencies. All polygraph examinations are reviewed by an expert in California who, according to the U.S. advise to the unit, never challenged the opinion of the forensic unit. Overall, we found that the SILTintegrates the forensic unit in the entire case-from the inception of the investigation at the crime scene to the concluding presentation at a judicial proceeding. The SIUalso pursued leads in a timely, diligent manner, with care given to the collection, anal- ysis, and presentation of evidence. One open case, which involves the murder of three individuals, typifies how the units work together using appropriate investigative techniques. After hearing about the shooting on the public radio and recognizing the prominence of the victims, the SIUsent investigators and forensic techni- cians immediately to the scene. The crime scene was quickly secured and Page 37 GAO/NSIADBOSl El Salvadoran Judicial System Appendix III Technical Analysis of the Special Investigative Unit and Forensic Laboratory photographed, and investigators interviewed eyewitnesses. The techni- cians obtained physical evidence, such as hair and blood samples, clothes, and spent cartridges. Later, the forensic unit was able to link this with evidence obtained from other cases, which helped significantly in identifying the suspects. This case is still open; no arrests have been made. Planning is both essential and indicative of a professional, investigative organization. One example of the SKJ designing and using a plan of action involved a shooting. The investigators prepared a detailed investigative plan, which was supervised by the Lieutenant in charge of investiga- tions and the Executive Director, and periodically checked to ensure that all points were covered in the investigation, Throughout this inves- tigation, the Lieutenant supervised the work of the investigators daily, and the Executive Director reviewed the progress weekly. This case also demonstrated cooperation between the SIIJ and other law enforcement agencies. The National Guard had also been investigating the same group of suspects for other crimes, Through the cooperative efforts of the SII: and the National Guard, it was determined that the gun used in the current shooting was the same gun used in a prior jewelry store robbery. The stolen jewelry and the gun were both recovered and a National Guard member and others were subsequently charged. Even in very old cases, which are the hardest to solve as leads dry up and trustworthy evidence is difficult to obtain, the SIU persevered. For example, although the Romero case was almost 6 years old when it was assigned to the SKI, and was previously unsuccessfully investigated by the National Police, the Office of the Attorney General, Salvadoran Pres- idential Commission, and the U.S. Embassy, the SILT was able to identify the primary suspects. We noted several areas where improvements could be made to enhance Agreement on the operation of the unit and to continue its progress toward a more Methods to Improve professional, independent investigative unit and discussed them with Operations the Executive Director. He agreed that implementing the following sug- gestions could improve the effectiveness of SIU and the Forensic Unit. l Emphasize and support self-initiated case openings to permit the SILT to quickly respond to a crime. Page 38 GAO/NSlADSO-81 El Salvadorau Judicial System Appendix III Technical Analysis of the Special Investigative Unit and Forensic Laboratory Allow the forensic unit to expand slowly. The unit should not expand l further until the specialists return from their training in the United States. . The SIUshould man a command post and monitor other police communi- cations to ensure timely notification of significant events. 0 Obtain and analyze incident reports from other police agencies for inves- tigative leads and intelligence. l Consider organizing the SIUin specialized squads, such as financial crimes, political corruption, and violent crimes. l Obtain more communication interception equipment, such as telephone interception devices to assist cases involving extortion and judicial intimidation, . Develop a unit to analyze police incident reports, newspaper and other media reports. This unit would also set up indices, informant records, and intelligence files. l Obtain a Central National Criminal Information System terminal so that the unit can perform its own record checks faster and without having to rely on other police agencies. Page 39 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix IV Objectives, Scope,and Methodology At the request of the Chairman of the Subcommittee on Western Hemi- sphere Affairs, House Committee on Foreign Affairs, we obtained infor- mation on the condition of the judicial system in El Salvador, and reviewed the purpose and the impact of the U.S.-sponsored bilateral administration of justice program, called the Judicial Reform Project, through December 1989. To meet these objectives we l interviewed and obtained records from U.S. government officials in Washington, D.C. from the Departments of State and Justice, and AID currently involved in the regional administrative of justice program and Judicial Reform Project in El Salvador, as well as those who participated in its beginning; . conducted an extensive review of literature on the judicial system and the Judicial Reform Project in El Salvador, including U.S. government, host-country government, and international human rights organization reports and studies; l obtained information from U.S. Embassy, Department of Defense, and AID officials in El Salvador; n interviewed both current and former officials in the judicial system, including Attorney Generals and Presidents of the Supreme Court, and high-ranking military officers in El Salvador; l met with critics of the current government in El Salvador or of U.S. judi- cial reform efforts there, including a lawyers group, Salvadoran nongov- ernmental human rights groups, and Salvadoran scholars; and l visited court facilities and met with judges and justices of the peace in and around San Salvador, as well as in small towns in the outlying areas of the country. We had U.S specialists, trained in investigative techniques and method- ologies, evaluate the forensic and investigative capabilities of the Com- mission on Investigation. Specifically, they looked at the investigative procedures, training, methods of opening cases, and independence of the units. We conducted this review from June to December 1989 and performed fieldwork in El Salvador during August and September 1989. Our work was conducted in accordance with generally accepted government audit- ing standards. We obtained agency comments and have incorporated them in the report when appropriate. We also have included them in their entirety in appendixes V and VI. Page 40 GAO/NSIAD-9081 El Salvadoran Judicial System Appendix V Comments From the Agency for International Development AGENCY FOR INTERNATIONAL DEVELOPMENT W*SWIHOTON. 0 c 20523 Mr. Frank C. Conahan Acting Comptroller General, NSIAD General Accounting Office 441 G street, N.W., Room 5055 Washington, D.C. 2054% Reference: GAO Draft Report - Foreign AID: Efforts to Improve the Judicial System in El Salvador (Code 462193 ) Dear Mr. Conahan: The Agency for International Development notes with satisfaction the results of the GAO Review of the Judicial Reform Project in El Salvador. It is balanced, accurate and fair in its presentation. The report recognizes the extreme difficulty of trying to achieve improvements in a weak and problem-ridden judicial system. However, it is also important to recognize that the problems confronting the Salvadoran judicial system do not differ much from the problems in other Central American coun- tries. All of these countries struggle with lack of funds, poorly-educated judges, weak management systems, corruption, and a host of related institutional problems. In the case of El Salvador, added to these systemic problems are the economic costs, social polarization and violence that have resulted from a decade-long civil war. Given the magnitude and nature of the problems, dramatic results cannot be expected over the short period of time that the Judicial Reform Project has existed, i.e., since 1985. As the report points out, judicial reform, as is true of most development processes, requires the patience and perseverance of a long-term commitment. We must assure that all those interested in and concerned about judicial reform understand this point. Nonetheless, we think that important and significant changes have occurred in El Salvador which supply concrete evidence that progress is being made. We would like to take this opportunity to provide you with additional information which we feel will strengthen the case for the growing commitment in ~1 Salvador to judicial reform. Page 41 GAO/NSIAD%Ml El Salvadoran Judicial System Appendix V Canmenta From the Agency for International Development -2- In addition to the accomplishments of the National Revisory Commission for Legislation (CORELESAL) recognized by the report, we would like to provide an update on the status of other legislative proposals which are receiving significant support from the Supreme court, the Attorney General, and the Public Defender. Several more laws are expected to be passed in the near future. As a matter of fact, four additional laws have been passed since the GAO field work for the report was finished in October 1989. In November, the legislature approved, with changes, the State of Exception Criminal Proce- dure Law. In February, the Assembly approved amendments to the Criminal, Criminal Procedure, and Minors Codes in relation to the Protection of the Family and Minors and the Use of the Surname Law, which is designed to eliminate discrimination against women and children born out of wedlock. On March 1, 1990, the Assembly approved the Procedural Law for the Imposing of Arrests and Administrative Fines. Less than five years since its founding the Commission on Investigations is a small but fully functioning, highly competent organization that has won high praise for its work. The success the Special Investigative Unit has achieved in individual cases is being noticed by the other police organiza- tions and the unit is being requested to assist them on other cases. In this manner, the professionalism of the unit serves as an example and a catalyst for change in the other police organizations. The Forensic Unit of the Commission for Investigations has also become a catalyst for change. It now offers a training program for the Attorney General’s Office and the Court to familiarize judges and prosecutors with the types of physical evidence that can be developed and the technical capabilities of the lab. Through these courses the forensic unit disseminates the training they have received under the project throughout the judicial sector. This will contribute to one of the goals of the project - the increased use of physical evidence and reduc- tion on the reliance on confessions to obtain convictions. As a case in point, the report raises the issue of whether the Jesuit case might diminish, or even reverse, the momentum which the judicial reform movement had begun to gain in El Salvador. Progress on the case, thus far, has only confirmed the commit- ment of the Cristianl administration to reform and provided evidence of the the competence and dedication of the Commission for Investigations. With the cooperation of the military, the Commission carried out a successful investigation of the case. Skilled questioning of witnesses and possible suspects provided invaluable leads. Ballistics tests on all suspected military Page 42 GAO/NSLAD-90-91 El Salvadoran Judicial System --. Appendix V Comments From the Agency for International Development -3- weapons used in the area on the night of the killings (over 1,000 ballistics tests were conducted) permitted positive identification of the weapons used. Handwriting analysis and other investigative and forensic techniques used by the inves- tigators further contributed to evidence that resulted in resolution of the case and indictment of four military officers and five enlisted men. Furthermore, this case demonstrated to Salvadorans how physical evidence can lead to confessions and confirmation of witnesses’ statements with no need to resort to coercive measures. All outside organizations which reviewed the SIU’s handling of this case, including the FBI, Scotland Yard, the Spanish police, and the Canadian Mounted police, credited the unit with a thoroughly professional and technically-competent job. In the area of court Administration and Training the report points out that although it was slow getting started, substantial progress has been made, especially in the area of judicial training. In addition to that training described in the report, a variety of courses have been organized for higher level judges and for support staff , One such course is designed to stimulate dis- cussion, and possible adoption, of the use of oral proceedings in trials. Other organizations have also provided training. ILANUD has assisted in organizing many of the courses and several judges have participated in regional courses sponsored by ILANUD. The U.S. Department of Justice’s ICITAP program, has twice given its overview of Investigative Techniques course to an audience of approximately 30 magistrates, judges, and justices of the peace. The Commission for Investigations is now replicating this course for other court personnel. Local currency counterpart resources have been equally impor- tant to the judicial reform program in El Salvador. Activities financed with these resource include the establishment of an administrative unit for planning and budgeting: and, establishment of a printing office in the Supreme court which regularly publishes the Revista Judicial, a summary of the cases which the supreme court has ruled on during the year. The Court has, in addition, used the printing office to publish various other support materials, including a report of its activities during the past five years, as recommended in the management assessment. Complementary local currency activities have been carried out with the Public Defender’s Office and the Attorney General’s Office, prior to these organizations being incorporated into the project this year. For instance, beginning in 1986, ESF Page 43 GAO/NSLADYO-81 El Salvadoran Judicial System Appendix V Comments From the Agency fw International Development -4- local currency was programmed to permit the Solicitor General’s Office to re-open its Public Defender Division. With this support, twenty-two public defenders and support personnel were hired, permitting the assignment of one public defender for each first instance court of the central and western judicial districts. This year, with an increase in the office’s budget, 11 new defense attorneys will be added. This will allow the office to expand its coverage to the eastern and paracentral regions, thus serving all geographical regions of the country, ESF local currency has also be used to support efforts to strengthen the prosecutorial capabilities of the Attorney General’s Office and to establish a Human Rights Division within the Attorneys General’s Office. With this funding, the Attorney General has added 24 prosecutors and 14 assistants permitting the assignment of a prosecutor to each first instance tribunal; established a department for the collection of fiscal debts which has collected nearly $3.0 million since 1986; and, completed an inventory of government property. To effect their own reform initiatives, the Supreme Court requested, and the Legislative Assembly approved in 1989, a 37% budget increase. With the additional funds, the Court was able to increase the salaries of the San Salvador -judges enough to permit them to begin working full-time. In a parallel change, the Attorney General’s Office was given an increase in its 1990 budget to permit it to move to full-time hours in San Salvador. These are important steps forward in the judicial system. It will alleviate backlogs and reduce the opportunity for conflicts of interest between the judges’ and prosecutors’ official duties and their personal law practices. The Court has initiated a number of additional programs to improve efficiency and access to the courts. These are briefly described below. To reduce backlog and the maldistribution of caseload two new efforts were introduced by the Court. The first is a program of mobile courts. Two such courts went into operation last year; two more are planned for this year. Also, the Court has established several new courts. In another reform program, the Court plans to have in operation by May a new center for information on detained persons. All auxiliary organs will have to report there detention of any person within 6-24 hours. The center will be open 24 hours a day and interested persons will be able to find out why a person has been detained and where they are being held. Page 44 GAO/NSIAD-90-81 El Salvadoran Judicial System Appendix V Comments From the Agency for International Development -5- The Penal Chamber of the court is carrying out an audit of all the penal courts to identify problems, such as delays in pro- cessing, lack of equipment, incompetent or corrupt personnel, etc. To date, 40 courts have been surveyed; nine auditors will be hired this year to complete the audit of more than 400 courts. Beginning in March, a new system of 24 hour rotating duty for the penal courts and justices of the peace in San Salvador will go into effect. Under the new system, everyone essential to begin an investigation - judge, forensic personnel, ambulance crew - will be required to be on duty at the judicial center. The new system will reduce delays both in beginning investiga- tions as well as in having the police turn people over to the courts when the 72 hour period of administrative detention has expired. The Court proposed and the Assembly adopted reforms to the Organic Law of the Judiciary which obliges law students to participate as public defenders, prosecutors, or jury members in an established number of cases in order to be licensed to practice. In addition to giving law students some practical experience, the new requirements should alleviate somewhat the shortage of personnel in these areas, which impedes the processing of cases. The Court’s budget for this year includes funds to establish a new Judicial School and for implementation of reforms to the Penal Procedural code which require that defense be provided to the accused beginning at the extrajudicial stage. Also, the Court began, in January, a human rights training program for the judges. Finally, as a demonstration of public involvement in and support for judicial reform two efforts are worthy of note. First, the Court has formed a committee of private citizens to help formulate a program to inform the public about judicial opinions and activities and to help build within the Salvadoran public a greater understanding and appreciation of the impor- tance of a strong and well-functioning judiciary. second, the -forensic doctors of El Salvador have recently formed an association, with the cooperation of the Court, dedicated to the improvement of their profession. As you can see a number of new programs have been started and are underway even since the GAO completed its field work. We take even the smallest of these reform efforts seriously. We - Page 45 GAO/NSIAD-9081 El Salvadoran Judicial System Appendix V Comments From the Agency for International Development -6- commend the Government of El Salvador and the entire Judicial branch for its perseverance and dedication to judicial reform in the face of enormous odds. We continue to support ongoing progress in this undertaking. Sincerely, Acting Assistant Administrator Bureau for Latin America and the Caribbean Page 46 GAO/NStAD-90-81 El Salvadoran Judicial System Appendix VI Comments From the Department of Stake United States Department of State IPaabingm,D.C. 20520 ‘4Af? I 5 199cl Dear Mr. Conahan: This is in response to your letter to the Secretary of February 7, 1990,forwarding the draft report entitled "Foreign Aid: Efforts to Improve the Judicial System in El Salvador," Enclosed are comments prepared by the Bureau of Inter-American Affairs. We appreciate the opportunity to review and comment on the report prior to publication. Sincerely, Office of Financial Management Enclosure: As stated Mr. Frank C. Conahan, Assistant Comptroller General, National Security and International Affairs Division, U.S. General Accounting Office, Washington, D.C. 20548. Pagr 47 GAO/NSlAD-90-81 El Salvadoran Judicial System Appendix VI Comments From the Department of State GAO DRAFT REPORTCOMMENTS FOREIGN AID: EFFORTSTO IMPROVETHE JUDICIAL SYSTEM IN EL SALVADOR(CODE 472193) The Department of State is pleased to have the Opportunity to comment on the above-cited report. It had supported the House Committee on Foreign Affairs' initiative in requesting the review and made available to the GAO team all of the information at its disposal relevant to the guestions being asked. In the Department's view, the report's basic conclusion is sound: we must continue to support the efforts of the Government of El Salvador to rebuild its justice System. The Judicial Reform Project and other programs aimed at strengthening the administration of justice in El Salvador have helped initiate a process in that country that holds out the possibility of significant change if the momentum is maintained over a period of years. The Department of State will continue to urge the Cristiani administration to build on the successes to date and carry that process forward. The report serves as a reminder that there are no short cuts to judicial reform. In established democracies, it is a continuing process of analysis and decisionmaking in diverse fora. In El Salvador, the process is just being initiated. It will necessarily be uneven, particularly at the outset, as reformers confront resource limitations, attitudes rooted in history and emotions rooted in a decade of internal warfare. Our objective in the Judicial Reform Project is to facilitate the assumption by indigenous institutions of responsibility for incremental improvements in the justice system. We are also making available new technologies -- modern investigative techniques and information management systems, in particular -- which can enable rapid improvement in key parts of the system and provide the impetus for further change. Not all the activities we sponsor will satisfy those anxious for immediate improvement in the justice system. But a justice system is a complex network of interrelated functions. If we are to see specific lasting changes, such as the prosecution of human rights abuses where few crimes of any nature have been successfully prosecuted, we must help the entire system improve. Mr. Schieck's letter recites diverse initiatives now underway in El Salvador to strengthen the administration of justice -- judicial training and congresses, a printing office, more prosecutors, an inventory of government property, among other things. The Judicial Reform Project has been the catalyst for these activities and thus has fulfilled its fundamental objective -- sparking a process of indigenous analysis and change. Page 48 GAO/NSIAD-WI-81 El Salvadoran Judicial System Appendix VI Comments From the Department of State 1 -2- Since the GAO completed its fieldwork for the report, the Department of State has assumed the management of project activities related to investigative and forensic development and judicial protection. This change was made to bring the El Salvador project more into line with the division of responsibility between AID and State that has evolved in other administration of justice projects. As the report suggests, the priority for the Special Investigative and Forensic Units (SIU) is to reconstitute the Commission on Investigations as an effective oversight body. The Bureau of Inter-American Affairs is pursuing this objective with the Cristiani government, as well as a redefinition of judicial protection activities under the project. A number of alternatives have been discussed over the last several months. We are also seeking to increase the role of the International Criminal Investigative Training Assistance Program (ICITAP) in El Salvador. ICITAP, a program of the U.S. Department of Justice that operates under the policy guidance of the Bureau of Inter-American Affairs, has trained approximately 400 Salvadoran police investigators, judges and prosecutors since 1986. As the SIU establishes firmer working relationships with other investigators and reaches out to prosecutors and judges through training by its forensic unit, it encounters colleagues who have been trained by ICITAP. ICITAP is no stranger to the SIU; the first SIU project manager is now the director of ICITAP. The division in project management between agencies previously hampered effective coordination of these activities. The SIU project manager, however, is now the in-country coordinator for ICITAP. ICITAP recently sponsored a seminar in Washington for heads of justice sector institutions -- senior police officials, the chief justice, attorney general and others -- which we hope will provide the motivation for the revamping of the Commission on Investigations. We will be looking for other opportunities for collaboration between ICITAP and the SIU project to facilitate the institutional changes needed for an effective justice system in El Salvador. Finally, I would note positive political developments that bode well for the future of judicial reform in El Salvador, notwithstanding the strains on the system exacerbated by the recent guerrilla offensive and the despicable murders described in the report. The Government of El Salvador has developed with AID a detailed workplan for project activities with the judiciary and the Attorney General. The Department is developing similar plans with the Commission on Investigations, the SIW and agencies interested in having access to a judicial protection capability. These plans evince the shared intention of our two governments to strengthen the administration of justice in El Salvador. Page 49 GAO/NStAD-90-81El SalvadoranJudicialSystem Appendix VI Comments From the Department of Stale -3- While the project began with the long-term goal of enabling the effective prosecution of serious crimes, including human rights abuses, it ought not be judged solely, nor even chiefly, in terms of the outcomes of particular sensational cases. It has not failed because the murderers of Archbishop Romero still elude justice; nor did it become an overnight success with the SILT's development of evidence that led to the arrest of eight members of the Armed Forces for the Jesuit murders. The case must still go to trial. In any legal system, good cases may be won or lost, and the resolution of a few prominent cases may not say much about the progress the justice system is making towards providing fair and effective application of the law to all citizens. The goal of the project is the institutionalization of practices -- such as forensic analysis of physical evidence and appointment of competent judges -- that will increase the probability that cases of all descriptions will be decided on their individual merits. When it is no longer front-page news that forensic techniques have been used to identify the perpetrators of a heinous crime, the process begun with this project will have reached an important juncture. This Administration is committed to assisting the Government of El Salvador carry the process of revitalization of the criminal justice system forward. The resolve it has shown in the Jesuit murder case, in the Department's opinion, not only confirms its willingness to work in this area but the timeliness of our continued assistance. Michael G. Kozak . Acting Assistant Secretary Bureau of Inter-American Affairs Page 50 GAO/NSL4D80-81 El Salvadoran Judicial System &peridix . VII Major Contributors to This Report j National Security and Joan M. Slowitsky, Evaluator-in-Charge International Affairs John Neumann, Evaluator / Division, 1 Washington, D.C. I David C. Williams, Director Office of Special Patrick I. Noble, Acting Director Investigations x P (472193) Page 61 OAO/NSIAD-9081 El Salvadoran Jdkial System I I id-
Foreign Aid: Efforts to Improve the Judicial System in El Salvador
Published by the Government Accountability Office on 1990-05-29.
Below is a raw (and likely hideous) rendition of the original report. (PDF)