Convention against Torture

and Other Cruel, Inhuman

or Degrading Treatment

or Punishment




15 December 2000


Original: FRENCH


Twenty-fourth session


Held at the Palais des Nations, Geneva,

on Tuesday, 9 May 2000, at 10 a.m.

Chairman: Mr. BURNS




Initial report of El Salvador



The meeting was called to order at 10 a.m.


Initial report of El Salvador (CAT/C/37/Add.4)

At the invitation of the Chairman, Mr. Lagos Pizzati, Mr. Mejia Trabanino and Mr. Castro Grande (El Salvador) took places at the Committee table.

The CHAIRMAN welcomed the members of the Salvadoran delegation and invited them to present the initial report of El Salvador (CAT/C/37/Add.4).

Mr. LAGOS PIZZATI (El Salvador) welcomed the chance to engage in dialogue with the Committee regarding the implementation of the Convention in his country; to that end, he was accompanied by a human rights specialist from the Ministry of Foreign Affairs to whom he would be yielding the floor. The Government of El Salvador placed great hopes in the joint consideration about to begin and would take particular note of the comments and recommendations of the Committee.

Mr. MEJIA TRABANINO (El Salvador) recalled that his country had ratified the Convention against Torture in 1994, barely two years after the signing of the Peace Agreements which had brought to an end 12 years of bloody conflict. The current report (CAT/C/37/Add.4) was a part of the process begun with the signing of those agreements, which had been the starting point on the road to democracy and the implementation of human rights in El Salvador.

Respect for and protection of human rights had taken on an entirely new meaning in El Salvador since the end of the armed conflict, during which, it must be recognized, fundamental rights had suffered. There had been persons detained for warlike acts who, after their release, had claimed to have been tortured during their detention; but it should be underlined that Mr. Pastor Ridruejo, the Special Representative of the United Nations Commission on Human Rights, had himself stated that in El Salvador there had been no institutionalized and generalized policy of torture, and that the cases reported did not indicate systematic practices. Moreover, the Government and the guerrilla forces had, in July 1990, signed the San José Agreement on Human Rights which included various arrangements regarding respect and guarantees for those rights, and whose implementation was subject to international monitoring by the United Nations; that agreement expressly provided that nobody should be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Moreover, since the signing of the Peace Agreements in 1992, new legal and political institutions and new legislation had been brought in, strengthening protection of human rights in the country.

The report under consideration had been drawn up by a multidisciplinary team from the Ministry of Foreign Affairs, which had consulted no less than a dozen national institutions in order to clarify the aims and objectives of the report, to carry out coordinated work, and to link the provisions of the Convention to the realities of the national situation, while pointing out the problems or difficulties which its implementation could involve. Moreover, the Office of the United Nations High Commissioner for Human Rights had been giving its support under a technical cooperation project since 1997. Within the framework of that project, a seminar on the preparation and presentation of reports due under the Convention against Torture had been held in August 1998; a dozen institutions had taken part, including two non‑governmental organizations, and the main speaker had been a former member of the Committee, Mr. Gil Lavedra.

El Salvador was a party to the major international human rights instruments within the framework both of the United Nations and of the Organization of American States, and the implementation of those instruments was obligatory on its territory. At the regional level, El Salvador was notably party to the Inter-American Convention to Prevent and Punish Torture and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women. Torture was prohibited by the Constitution and, although that term was not defined in it, articles 2, 11, 12 and 27 of the Constitution established the right of every individual to life and to physical, psychological and moral integrity. Moreover, article 297 of the Penal Code in force since 1998 classified torture as an offence and particularly penalized agents of the State who committed acts of torture in the exercise of their duties. Articles 5 and 10 of the 1998 Prisons Act introduced for the first time the concept of prisoners’ rights. Finally, the National Civil Police Organization Act of 1992 established that no member of the police service could inflict, incite or tolerate an act of torture.

The report under consideration presented data gathered by the Office of the Procurator for the Protection of Human Rights (PDDH) regarding violations of physical integrity, which showed that the incidence of such acts was quite low. Complaints were mainly of ill‑treatment, with excessive use of force coming second. The data received for 1999 detailed 4 cases of offences against physical integrity, 4 cases of torture, 20 cases of cruel treatment, 825 cases of ill‑treatment, 52 cases of excessive use of force and 29 cases of inhuman treatment inflicted on detained persons. Between 1 January and 31 March 2000, according to indications provided by the Office of the Procurator, there had been 2 offences against physical integrity, 2 cases of torture, 1 case of cruel treatment, 175 cases of ill-treatment, 12 cases of excessive use of force and 3 cases of inhuman treatment of detained persons.

Education on human rights, which specifically included the norms of international law and other fundamental principles of human rights protection and promotion, was thenceforth to be a part of the training programmes for members of the National Civil Police, the National Public Security Academy and the armed forces. The staff of prisons and of the Institute for the Protection of Minors also received human rights training. For that, El Salvador was receiving help from the Office of the United Nations High Commissioner for Human Rights under the aforementioned cooperation project, in virtue of which 510 police officers, 34 members of the National Public Security Academy, 142 officers from the armed forces and 1,166 prison warders had taken courses on human rights.

In conclusion, he underlined that, although the human rights situation in El Salvador had undeniably improved, there were still various problems which the authorities would be trying to resolve.

Mr. GONZALEZ POBLETE (Country Rapporteur) was pleased to see a new State enter into dialogue with the Committee, though he noted that the initial report had been submitted somewhat late. Overall, the report had been drawn up in conformity with the Committee’s guidelines on the form and content of initial reports. As the representative of El Salvador had just indicated, the State party had ratified the major international instruments on the protection of human rights, at both the international and the regional level. It would be noted in particular (paragraph 33 of the report, CAT/C/37/Add.4) that El Salvador had in 1994 ratified the Inter‑American Convention to Prevent and Punish Torture, and that it had also ratified the Optional Protocol to the International Covenant on Civil and Political Rights and recognized the competence of the Inter‑American Court on Human Rights to consider complaints from individuals. As, however, El Salvador had not made the declaration under article 22 of the Convention against Torture, the Committee was divested of the competence enjoyed for their part by the Human Rights Committee and the Inter‑American Court on Human Rights. That omission was all the more inexplicable in that both the Covenant and the American Convention on Human Rights prohibited torture; those instruments imposed on States parties obligations very similar to those pursuant to the Convention against Torture, and both the Inter‑American Court and the Inter-American Commission on Human Rights were competent to examine complaints from individuals. It would therefore be logical for the Salvadoran authorities to consider recognizing the competence of the Committee under article 22 of the Convention, in order to continue the constructive dialogue which had just begun.

By virtue of article 144 of the Constitution, treaties concluded by El Salvador were laws of the Republic and took precedence over domestic law. However, the Constitution did not include any express prohibition of torture, even though its article 2 guaranteed the physical and moral integrity of the person and its article 11 established the primacy of the remedy of habeas corpus in cases of offences against the physical or moral integrity of persons held in detention. The only reference in the Constitution which came close to the concept of torture was that of cruel physical treatment (“tormento”), in article 27, which did not cover all the elements contained in the definition of torture given in article 1 of the Convention. Article 297 of the new Penal Code did classify torture as an offence, but without specifying what constituted torture. It simply stated that any public official or employee who, in the performance of his functions, inflicted physical or mental torture, or who did not oppose its infliction, was liable to between three and six years’ imprisonment. Article 1 of the Penal Code required that the penal law should describe in a precise and unequivocal fashion the action or omission which constituted an offence, but article 297 of the Penal Code did not specify which concrete acts constituted torture. Nor had he found elsewhere in the Code anything enabling him to interpret article 297 satisfactorily and to determine exactly what was understood there by torture. It was true that the new Penal Code had been promulgated in 1998, after the ratification by El Salvador of the Convention against Torture and of the Inter‑American Convention, so it could be assumed that the concept of torture envisaged in article 297 was that defined by those Conventions. Nevertheless, it was for the judges to interpret the article definitively, and it appeared that very often sentences were handed down applying other provisions of the Penal Code relative to conduct considered applicable to the situation, but taking no account of the purposes for which the acts had been committed, which was an essential element of the definition given in the Convention. Usually those were acts such as assault and battery (article 142 and following of the Penal Code), coercion (article 143), threats (article 154) and rape (article 158). With the exception of serious assault and battery (article 144 of the Penal Code) and rape, all those acts to which judges referred in practice were punishable by sentences less severe than the three to six years’ imprisonment prescribed for acts of torture. Moreover, the classifications other than torture which judges were tempted to apply were not subject to imprescriptibility of penalty and prosecution, whereas that was provided for in article 99 of the Penal Code to ensure that torturers could not enjoy impunity. It was true that if there was a conflict between article 297 of the Code and the Convention, courts would have to rule in favour of the latter; but what about the potential conflict of interpretation that judges could face if called on to pass sentence for acts which could be classed as torture under article 1 of the Convention but not under article 196 of the Penal Code? He was therefore unable to agree with the statement in paragraph 66 of the report that the Penal Code gave effect to the provisions of the Convention; on the contrary, the Code omitted the element which best characterized torture as defined in article 1 of the Convention, namely the motive of the torturer.

With regard to the implementation of article 2.1 of the Convention, the constitutional reforms which had resulted from the Peace Agreements considerably strengthened the rules on protection of human rights applied in El Salvador. In that respect, the San José Agreement on Human Rights, mentioned in paragraph 62 of the report and cited by the delegation, was particularly important. The new Penal Code and Code of Criminal Procedure, and the Prisons Act, all promulgated in 1998, and the National Civil Police Organization Act of 1992, had strengthened the essential guarantees provided to individuals. Another positive element was the creation of the Office of the Procurator for the Protection of Human Rights, under a law promulgated in 1992, and the speed with which that institution had become operational.

Article 29 of the Constitution, on states of exception, authorized the suspension of certain rights - e.g. freedom of expression, of association and of assembly, inviolability of correspondence - but did not permit the suspension of the right to physical and moral integrity, the right not to admit guilt and the remedy of habeas corpus. In that respect, the Salvadoran legal system was fully in conformity with the requirements of article 2.2 of the Convention.

The situation was also satisfactory with regard to the implementation of article 2.3. Salvadoran legislation apparently included no provision exempting a torturer from criminal responsibility on the grounds that he had acted on the orders of a superior. On the contrary, articles 32 and following of the Penal Code seemed to involve the responsibility of both the person who had given the order and the one who had carried it out. For its part, article 25 of the National Civil Police Organization Act expressly provided that no member of the police corps could invoke an order from a superior to justify the use of torture or other cruel treatment.

With regard to the implementation of article 3 of the Convention, the State party cited in paragraphs 111 to 135 of its report various provisions of the Constitution and the legislation on migration, but none of them referred to the prohibition on deporting, returning or extraditing a person to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, as set out in article 3 of the Convention. The report stated, in paragraph 115, that it was the responsibility of the Ministry of the Interior to decide whether the person concerned should be extradited, deported or returned, if the person had participated directly or indirectly in El Salvador’s internal politics. However, the report did not clearly establish the procedure for deportation or return if the individual concerned had not participated in the internal politics of the country. Moreover, according to paragraph 122 of the report, the Ministry of the Interior could also authorize the deportation of any foreigner who had “unlawfully” entered the territory, which was precisely the situation of the majority of persons at risk of being sent back to their country of origin.

It appeared, according to paragraph 116 of the report, that the decision on deportation or return of a foreigner was taken at the end of “administrative proceedings” which guaranteed the individual concerned impartiality, the right to a hearing and access to all remedies provided for by the law. Moreover, substantial reasons for believing that the individual concerned risked being subjected to torture could be grounds sufficient for considering that the alien was in “imminent danger”, in which case, according to paragraph 123, he could be granted permanent residence or even Salvadoran nationality by naturalization. Furthermore, paragraph 125 of the report stated that it was the responsibility of the Supreme Court of Justice to render an opinion on the legitimacy of an application for extradition. Since the Convention was incorporated into national legislation, the individual concerned could invoke article 3 of the Convention before the Supreme Court. Finally, if the Office of the Director-General for Migration did indeed meet the requirements of the “international instruments ratified by the State of El Salvador” as stated in paragraph 124 of the report, it followed that that body should examine the allegations of the individual concerned on the basis of article 3 of the Convention.

With regard to the implementation of article 4 of the Convention, he noted that the classification of torture as an offence, given in article 297 of the Penal Code, did not correspond to the definition in article 1 of the Convention. According to article 297, the author of the crime was any public official or employee, and paragraph 136 mentioned article 139 of the Penal Code, which defined the entire range of agents of the State thus covered. If the author of the offence committed an act of torture at the instigation of an agent of the State, or with his express or tacit consent, the agent of the State became an “indirect author” and his nature as a public official was transmitted to the direct author, entailing the same criminal responsibility for both parties.

Paragraphs 137 and 138 of the report mentioned respectively articles 320 and 153 of the Penal Code, dealing with arbitrary acts and coercion to commit an offence. Owing to the inadequacy of its classification, torture could thus be dealt with under the head of arbitrary acts and coercion, the corollary of which would be sentences less severe than those provided for in article 297 of the Penal Code, and the non‑application of the principle of imprescriptibility. It would be desirable that the amendments to the Penal Code mentioned in paragraph 139 should deal not only with the offence of torture in time of armed conflict, but also the classification of the offence of torture, to ensure that its definition corresponded to that in article 1 of the Convention.

Paragraph 143 of the report stated that “the most significant investigations into offences against the physical integrity of victims of the security forces have agreed with the results of investigations conducted by the PDDH and have included prosecution of those responsible to the fullest extent of the system of justice”. Annex 7, referred to in paragraph 147, and the conclusions reached by the Office of the Procurator illustrated clearly the “extent” of the system of justice. Moreover, he had examined more than 100 cases presented by a national NGO, the Legal Defence Centre of the Archbishopric of El Salvador, and in more than half the cases, the offences classified as violations of the right to integrity of the person in fact corresponded to the offence of torture under article 1 of the Convention. He had been surprised to receive from the Ministry of Public Security a report based on information from the institution concerned and not on the information in the possession of the Office of the Procurator for the Protection of Human Rights, which was the moral conscience of the nation in the field of human rights protection. In his opinion, all those circumstances cast doubt on the accuracy of the statistics showing few cases of torture.

Another subject of concern was the reappearance of death squads. Their actions had been frequent during the 12 years of the armed conflict, but they had been directed against political dissidents, whereas currently they were “social cleansing” operations intended to eliminate suspected criminals. Thus, during the period 1996 to 1999, the Legal Defence Centre of the Archbishopric of El Salvador had reported 41 victims of death squads, which was very worrying. Finally, following the Peace Agreements, El Salvador had disbanded the former police services and had created a new police force whose new officers were trained at a newly created academy. However, again worryingly, many reports pointed to the existence of methods similar to those used by the former police services during the armed conflict.

Concerning implementation of article 5 of the Convention, he found article 10 of the Penal Code, quoted in paragraph 152 of the report, fully satisfactory, since its provisions established the principle of universality very clearly, providing for the prosecution of the perpetrators of crimes of torture at the international level.

It appeared that Salvadoran legislation was in conformity with the provisions of article 6 of the Convention. In that respect, the report detailed the guarantees which accompanied any detention: a mandatory written arrest warrant, a maximum duration of 72 hours for administrative detention, appearance before a competent judge during that period, detention for the purposes of the investigation, again for a maximum period of 72 hours, by the end of which the competent court must order either release or remand in custody. It was of course not necessary to produce a written arrest warrant in cases of flagrante delicto, but the arrested individual must be immediately handed over to the competent authority. It appeared that the only authority competent to issue a written arrest warrant was the Department of Public Prosecutions. He would like clarification on that subject.

With regard to implementation of article 7 of the Convention, it would appear that the Salvadoran Constitution did not provide for the extradition of nationals, but that that issue was dealt with in article 9, paragraph 3, of the Penal Code, which stipulated that Salvadoran criminal law was applicable to offences committed abroad by Salvadorans, if extradition had been refused on the grounds of nationality, which appeared to be in conformity with the provisions of article 7.

With regard to the implementation of article 8 of the Convention, paragraph 168 of the report cited various extradition agreements ratified by El Salvador. All the treaties ratified prior to the entry into force of the Convention had been concluded with States currently parties to the Convention. Thus, even if those States did not have laws concerning the offence of torture, El Salvador would be obliged to grant extradition in compliance with article 8.1 of the Convention. Subsequent to the entry into force of the Convention, two further extradition treaties had been signed, one with the Kingdom of Spain and the other with the United Mexican States, both of which were in conformity with the provisions of article 8 of the Convention. The report also cited the general provisions giving effect to those commitments.

Mr. SILVA HENRIQUES GASPAR (Alternate Country Rapporteur) had a few remarks to make regarding implementation of articles 10 to 16 of the Convention. On article 10, he noted that the State party had devoted enormous efforts to the training of law enforcement personnel; since those training efforts were very recent, it was too early for a full assessment. Nevertheless, it would be interesting to know how the Salvadoran authorities proposed to evaluate the results obtained in that area, and what measures they intended taking to ensure effective follow‑up of the activities carried out in the police forces and with prison staff. In paragraphs 213 to 215 of the report, the creation of courts for prison supervision and the enforcement of sentences was referred to. He would like fuller information on the powers of those courts, and particularly whether or not they were competent to consider complaints lodged by detainees. Were they able to propose disciplinary measures or was their task simply to communicate the results of their investigations to the Department of Public Prosecutions? Under article 8 of the National Civil Police Organization Act, quoted in paragraph 222 of the report, the Office of the Inspector‑General of the Police appeared to enjoy great independence in the performance of its functions. It would be interesting to know how long that body had been in existence and what the extent of the powers of investigation of the Inspectors‑General was. Were there any statistical data on their activities, and were they mandated to make unannounced visits to police stations? If so, had such visits already taken place? The mechanisms in place seemed in theory to fulfil the requirements of articles 12 and 13 of the Convention, since they enabled an inquiry to be undertaken either ex officio or on the basis of a complaint, wherever there were reasonable grounds to believe that a person had been the victim of ill‑treatment. Nevertheless, the effectiveness of such mechanisms could only be evaluated in terms of the concrete results obtained. He would therefore like to have information on the follow‑up to complaints lodged and to know whether any criminal or disciplinary punishments had yet been handed out. If the delegation was unable to provide such information immediately, it could be sent to the Committee later in writing.

With regard to article 14 of the Convention, he was glad to see that the Department of Public Prosecutions could request that compensation be granted to victims of torture; but what exactly happened in practice? The wish to ensure the effectiveness of inquiries into cases of ill‑treatment as defined in article 16 of the Convention seemed to be backed by an appropriate institutional mechanism. Nevertheless, the cases reported in paragraph 287 were insignificant in number. What comments could the delegation make on that subject? Were the interested individuals adequately informed about their right to lodge complaints and about the competence of the bodies concerned?

Mr. RASMUSSEN said that medical examinations played a very important role in the prevention of torture. He would like to know whether every person detained in a police station had the right to be examined by a doctor during his detention and before his transfer to prison. If so, how was the doctor’s report brought to the attention of the competent authorities? Secondly, the problem of overcrowding in prisons in El Salvador was well known. Paragraph 163 (e) of the report mentioned measures to replace pre‑trial detention. He would like to know if there were any statistics on the implementation of such measures. Paragraph 236 of the report contained information on changes in the prison population between 1995 and 1997. In most cases, the number of detainees had dropped, except at Ilobasco where it had gone up from 81 in 1995 to 244 in 1997. It would be interesting to know the capacity of the various detention centres.

According to information received by the Committee and transmitted to the State party, there was a contradiction between statements made by the Office of the Procurator for the Protection of Human Rights and by the Salvadoran authorities with regard to violence in prisons. Did prison authorities keep a register of the various incidents and of cases where it had been necessary to use force to control the behaviour of prisoners?

Ms. GAER noted that, since the Peace Agreements, the police forces had been subject to far‑reaching reorganization. Major changes had been made to their powers. The information provided in paragraphs 51, 85 and 86 of the report indicated that, according to the Office of the Procurator for the Protection of Human Rights, acts of torture usually involved auxiliary law enforcement agencies, namely local police forces and warders in detention and rehabilitation centres. The report did not indicate clearly what was their link with the National Civil Police. She would be grateful to the delegation for clarification on that subject. Paragraph 97 of the report stated that the National Civil Police had an Inspector‑General whose mandate was to supervise police conduct. Paragraphs 100 and following contained information on the role of other institutions, including the Ministry of the Interior, the Ministry of Justice and the Ministry of Defence, in the prevention of torture. She would welcome fuller information on the respective tasks of those institutions in that regard and a comparison of their tasks with those of the National Civil Police. Did the military police also retain certain competencies in that area? One other issue which required clarification was that of the restructuring of the police forces. How were members of the police currently recruited, and what had become of former police officers relieved of their duties?

With regard to article 3 of the Convention, paragraph 119 of the report mentioned many cases of trafficking in human beings. Among the victims of that practice were Chinese, Egyptians, Senegalese, Equadorians and persons from Central America. She would appreciate particulars regarding the sex and ages of the individuals concerned. Had the Salvadoran authorities provided for any rehabilitation measures to help those persons? The report further indicated that the persons concerned were immediately deported; it would be useful to have details of what happened to them subsequent to their deportation.

Paragraphs 145 and 146 of the report noted with some candour that victims of torture hesitated to lodge complaints officially with the competent institutions. What measures were taken to facilitate the task of detainees who wished to complain about ill‑treatment? Were they fully informed of their rights and did they have the assurance that they would not be subject to reprisals if they lodged a complaint? It would also be useful to know whether there was any monitoring of sexual violence in prisons, and if anybody had yet been punished for such practices. Finally, in the information provided and training given to agents of the State, was emphasis laid on raising awareness of gender‑specific acts of torture?

The CHAIRMAN thanked the delegation for their comprehensive replies to the Committee’s written questions, and invited them to come back and respond at a later meeting to the questions put orally.

The delegation of El Salvador withdrew.

The meeting was suspended at 11.30 a.m. and resumed at 11.45 a.m.

ORGANIZATIONAL AND OTHER MATTERS (agenda item 5) (continued)

Joint Declaration for the United Nations Day in Support of Victims Of Torture

The CHAIRMAN drew attention to the revised draft Joint Declaration for the United Nations Day in Support of Victims of Torture (CAT/C/XXIV/Misc.3) distributed in English only. The changes made were indicated in square brackets.

Mr. EL MASRY proposed replacing the word “proper”, in square brackets in paragraph 8, by the word “adequate”.

It was so decided.

Mr. RASMUSSEN noted, on the same paragraph, that within the context of the holding of a day in support for victims of torture, particular emphasis was laid on the principle of reparation. He therefore proposed replacing the word “compensation” in the text by “reparation”. That would enable the Committee to harmonize its terminology with that of other bodies participating in the holding of that day.

The CHAIRMAN, responding to a request for clarification from Ms. Gaer, said he believed Mr. Rasmussen wished simply to ensure a degree of harmony with the terms used by other interested bodies, and not to establish any distinction between the words “compensation” and “reparation”. If there were no objections, he would take it that the Committee supported Mr. Rasmussen’s proposal.

It was so decided.

The CHAIRMAN said that if there were no further comments, he would take it that the members of the Committee also accepted the changes made to paragraphs 6 and 12 of the draft Declaration.

It was so decided.

Mr. GONZALEZ POBLETE, noting that in the Spanish version of the Convention the term used was “reparación”, considered that the same term ought to be used in the Spanish version of the Joint Declaration.

Ms. GAER said that in the English version of the Convention the word “compensation” was used twice in article 14, paragraph 1 and once in paragraph 2. She therefore thought that the word ought to be retained in the English version of the Joint Declaration.

Mr. CAMARA drew the Committee’s attention to the fact that the French version of the Convention used both the term “réparation” and the term “indemnisation” (compensation).

The CHAIRMAN pointed out that the matter at issue was a joint declaration, aimed at best serving the interests of the victims. He suggested that the English version of paragraph 8 should read: “Urge all States to provide for fair and adequate reparation, including compensation and rehabilitation”.

The draft Joint Declaration, thus orally modified, was adopted.


Mr. BRUNI (Secretary of the Committee) informed members that item 10 remained on the agenda of the Committee against Torture since it presented an annual report each year to the General Assembly. However, given the reorganization of the work of the Third Committee, annual reports would thenceforth be considered every two years. The only document brought to the attention of the Committee under that agenda item for the current year was resolution A/RES/54/156 entitled “Torture and other cruel, inhuman or degrading treatment or punishment”, adopted in December 1999 without a vote, as a “joint” resolution dealing with all issues related to torture. The text had no new elements relative to resolutions adopted in previous years.

The first part (public) of the meeting rose at 12.15 p.m.