oversight

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)

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.



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                   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




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                    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


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                  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


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                      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



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                     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


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-
                      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




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        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




-



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     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




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