The International Human Rights Framework on the Right of Peaceful Assembly
El Salvador is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
El Salvador is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
At regional level, El Salvador is a State Party to the 1969 Inter-American Convention on Human Rights (ACHR). Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
El Salvador has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of the State that their rights under the 1969 Inter-American Convention on Human Rights have been violated.
On 1 April 2020, El Salvador informed the Organization of American States that it had derogated from the application of certain constitutional rights as of 29 March for a period of 15 days, including the right of peaceful assembly. It has continued to derogate from the right of assembly.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 7 of the 1983 Constitution of El Salvador provides that the inhabitants of the country "have the right to meet peacefully, without arms, for any lawful purpose".
As the non-governmental organisation, CIVICUS, has pointed out, however: "the Constitution and other laws, cases and regulations do not establish a clear parameter between what is “lawful” and what is not, leaving it to the discretion of the authorities to determine what is a “lawful” purpose."
In its 2014 National Report for its Universal Periodic Review under the UN Human Rights Council, El Salvador declared that:
Public demonstrations in exercise of the rights to freedom of expression, assembly and association are not subject to prior authorization from the authorities. Moreover, the power to regulate the exercise of the right to freedom of assembly rests solely with the legislature and the exercise of public freedoms may in no case be made subject to permits or prior authorizations from the administrative authorities, except in particular circumstances.
El Salvador referred in its report to a 1995 judgment by the El Salvador Supreme Court endorsing this position. Section 4-94 of the Judgment of the Constitutional Court of 13 June 1995 provides as follows:
Freedom of assembly and public demonstration in its nature and how it is exercised is one of those rights that cannot be subject in its exercise to the prior approval of the state. The exercise of this freedom can only be subject to limitations if it is justified and has previously established laws.
Spontaneous demonstrations are also permitted in El Salvador.
Back in 2007, the Special Law Against Acts of Terrorism was used to prosecute and convict protesters who allegedly blocked roads and threw stones. Article 6 of the Special Law states that:
The person who participates individually or collectively in the occupation of cities, villages, buildings or private facilities, public places, diplomatic, or any places for religious cult, in whole or in part, using for this weapons, explosives or similar articles, thereby affecting the normal development of the functions or activities of the inhabitants, staff or users, shall be punished with imprisonment of 25-30 years.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
According to Article 15(1) of the 2001 Organic Law on the National Civil Police determines that:
In the performance of their duties, the members of the National Civil Police shall use, to the extent possible, non-violent means before resorting to the use of force and firearms. They may use force and firearms only when other means are inefficient or not guarantee in any way the intended legitimate result achievement.
According to paragraph 5 of Article 15, the National Civil Police will "guarantee the rights of assembly and demonstration". When, by legal orders, they are forced to disperse an assembly or demonstration, will they use the least dangerous means and only to the extent necessary.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
Article 15(2) of the 2001 Organic Law on the National Civil Police duly stipulates that:
The members of the National Civil Police will not use firearms against persons except in self-defence or defence of others, in the event of imminent danger of death or serious injury, in order to prevent the Commission of a particularly serious crime involving a serious threat to life, in order to stop a person who represents this danger and put resistance and only in the event that less extreme measures are insufficient....
In addition, when the National Civil Police are obligated to disperse an assembly, they will refrain from using firearms, "except in the case of violent meetings in which they have exhausted the other means and only when the circumstances foreseen in paragraph 2 [of Article 15 exist]".
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2018 Concluding Observations on El Salvador, the Human Rights Committee expressed its concern about the implementation of Article 348 of the Criminal Code, which concerns the crime of “public disorder”, and Article 331 of the Code of Criminal Procedure, which prohibits the application of alternatives to provisional detention for the offence of public disorder, "since that prohibition could lead to restrictions on the right to peaceful assembly". It called on El Salvador to "take effective measures to protect and safeguard the right of peaceful assembly, "including by reviewing its criminal legislation".
Constitutional Court decision (May 2020)
In mid-May 2020, the Constitutional Chamber of the Supreme Court of Justice, in its decision 63-2020, suspended the Government decree which sought to extend the state of emergency in El Salvador as a result of the COVID-19 pandemic in the country. The Court held that until the unconstitutionality issue was resolved, the Executive "may not exercise any of the powers established by the said regulations" established under the decree. The Court called on the government to work with parliament to adopt a law, which would comply with the El Salvadorian Constitution.
Views of Civil Society
According to Freedom House's 2019 report on El Salvador:
Freedom of assembly is generally upheld, and public protests and gatherings are permitted. However, due to the prevalence of violence in El Salvador, the safety of participants is impossible to guarantee. ... Protesters clashed with police forces during June 2018 demonstrations in the capital against the privatization of water services. The police used tear gas to disperse the crowd, and protestors responded by throwing rocks at the national assembly building, resulting in damage.