U.S. Department of State Country Report on Human Rights Practices 2004 - El Salvador
|Publisher||United States Department of State|
|Publication Date||28 February 2005|
|Cite as||United States Department of State, U.S. Department of State Country Report on Human Rights Practices 2004 - El Salvador , 28 February 2005, available at: http://www.refworld.org/docid/4226d99311.html [accessed 8 March 2014]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
Released by the Bureau of Democracy, Human Rights, and Labor
February 28, 2005
El Salvador is a constitutional, multiparty democracy with a unicameral legislature, an independent judiciary, and an executive branch headed by a president. In March, voters elected as president Elias Antonio Saca of the Nationalist Republican Alliance (ARENA) to a 5-year term. International election observers reported that the presidential election was generally free and fair, without violence or notable irregularities. The judiciary is constitutionally independent; however, many judges were still susceptible to political and outside influence.
The National Civilian Police (PNC) maintains public security; the Ministry of Defense is responsible for national security. The military provides support for some PNC patrols in rural areas and also provides support to the law enforcement agencies for specific activities such as a new antigang program, antinarcotics efforts, and reform-school training for juvenile convicts. A law passed in July created a Rural Police Department to coordinate and evaluate strategies and plans for rural areas of the country. Civilian authorities maintained effective control of the security forces. Some members of the police committed human rights abuses.
The country has a market-based economy focused on services and light manufacturing, while simultaneously opening its markets. The country's population is over 6.9 million. Remittances from abroad are the largest single source of foreign income, equivalent to approximately 15 percent of GDP, and they continue to grow in value. Agriculture remained the largest source of employment. Coffee and sugar are the principal export crops. The rate of real economic growth changed little during the year and was estimated at 1.8 percent, with inflation at 5.4 percent. According to the Ministry of Economy's statistics and census office, in 2003 approximately 36.1 percent of the population lived below the poverty level, compared with 38.8 percent in 2002.
The Government generally respected the human rights of its citizens; however, there were significant problems in some areas. There were no politically motivated killings during the year; however, courts dropped charges from some 2003 cases. Some police officers used excessive force and mistreated detainees; at times police arbitrarily arrested and detained persons without adequate cause. Prison conditions remained poor, and overcrowding was a continuing problem. During the year, the Government took steps to improve prison conditions. Lengthy pretrial detention remained a problem. The judiciary remained generally inefficient and hampered by corruption, although the Supreme Court and the Attorney General's office (AG) took some steps during the year to address both inefficiency and corruption. Impunity for the rich and powerful remained a problem, as did violence and discrimination against women. Abuse of children, child labor, forced child prostitution, and trafficking in women and children remained problems, as did discrimination against disabled persons. The Government took steps to provide adequate protection of workers rights.
RESPECT FOR HUMAN RIGHTS
1. Respect for the Integrity of the Person, Including Freedom From:
a. Arbitrary or Unlawful Deprivation of Life
There were no politically motivated killings by the Government or its agents; however, security forces killed 29 persons. At year's end, authorities were adjudicating whether police officers had acted criminally or in the line of duty.
The Office of the Human Rights Ombudsman (PDDH) received one complaint of attempted and/or completed unlawful killings by police during the year.
In June, in San Jose Villanueva PNC officers Neftaly Osmin Soriano and Santos Claudio shot and killed Carlos Aldredo Paniagua Martinez during a scuffle with 15 persons. According to witnesses, the officers shot Paniagua Martinez three times at point-blank range as he assaulted them. The initial hearing took place in October. In December, a judge dismissed the charges against the PNC officers.
In January, a court acquitted gang member Francisco Zarceno Rodriguez, but convicted nine other persons in the 2003 death of Alvaro Centeno Calvio in Ahuachapan during the legislative and municipal election campaign. Carlos Alexander Sanchez Andino and Jose Geovani Galeano Portillo were each sentenced to 30 years in prison for the murder of Centeno.
On November 5, gunmen shot and killed foreign labor activist Jose Gilberto Soto in Usulutan. Six persons, including Soto's mother-in-law, were charged in the killing.
There was no information available from government sources regarding the trial of persons for the 2002 shooting death of Darwin Lopez.
As of October, the AG had not reported any new developments and none were expected in the 2002 killing of Nelson Alfonso Amaya Argueta, president of the National Federation of Demobilized Members of the Civil War Era Militia.
On August 27, the Criminal Chamber of the Supreme Court upheld the decision of a lower criminal court that the 2001 beating and killing of cadet Erick Mauricio Pena Carmona was first-degree murder. Air Force flight school cadets Carlos Mauricio Melara and Cesar Humberto Dorat were sentenced to 10 years' imprisonment and $5,714 in punitive damages. According to the Human Rights Institute of the University of Central America (IDHUCA), this was the first instance in which a court found the armed forces responsible for Pena Carmona's death. In September, the IDHUCA presented the case before the Criminal Chamber of the Supreme Court and in November, they presented the case to the Inter-American Commission on Human Rights.
In September, the Catholic Church called for the Government to reopen the investigation into the 1980 killing of Archbishop Oscar Romero.
Transvestites were targeted and several were killed during the year (see Section 5).
There were no reports of politically motivated disappearances or of police involvement in kidnappings during the year.
Most disappearances were kidnappings for ransom. According to police statistics, eight persons were kidnapped during the year, the same number as in 2003.
Since its inception, the Association for the Search for Children Who Disappeared as a Result of the Armed Conflict (Pro-Busqueda) has investigated 250 cases (out of 712) and organized 156 family reunification meetings between children who disappeared during the armed conflict and their biological parents. Children have been located in El Salvador, the United States, France, and Italy. In August, Pro-Busqueda met with the Family Committee of the Legislative Assembly to lobby for a bill to create a national commission to investigate the cases of children missing since the 1980-92 civil war. In May, the U.N. Committee for Children's Rights urged the Government to create a national commission.
On October 5, the President passed an executive decree to create, for a 4-year period, the Salvadoran Inter-Agency Committee for the Search for Children Who Disappeared as a Result of the Armed Conflict. The Committee is composed of representatives from the Ministry of Foreign Affairs, the Ministry of Governance, the Ministry of Defense, the PNC, the Salvadoran Institute for Children and Adolescents (ISNA), the Solicitor's office, and the Attorney General. During the year, the committee developed its internal organization and regulations, and met with representatives of Pro-Busqueda, who announced plans to join the Committee.
In September, the PDDH found that the 1982 disappearance of sisters Ernestina and Erlinda Serrano Cruz in San Antonio de la Cruz, Chalatenango during an armed forces operation occurred in an area where many civilian casualties resulted from fighting between government forces and guerrillas, and that in its investigation of the case, prosecutors, judges, and the Supreme Court had denied justice to the Serrano family. In June 2003, Pro-Busqueda presented the sisters' case to the Inter-American Court of Human Rights. In December, the Court resolved legal issues relating to statutes of limitation; a final sentence will be announced in 2005.
c. Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment
The Constitution prohibits such practices. During the year, the PDDH received one complaint alleging torture by police officers. There were allegations that some members of the PNC used excessive force or otherwise mistreated detainees.
During the year, the Inspector General (PNC/IG) received a total of 152 complaints for police negligence, 165 complaints for crimes allegedly perpetrated by police agents, 721 complaints regarding inadequate police procedures, 100 complaints for violations of human dignity, and 116 complaints for violation of freedom of transit.
During the year, the PDDH resolved a total of 104 complaints against the PNC for all categories of human rights violations. It found PNC officers responsible for violations in 91 cases and absent of responsibility in 9 cases; a settlement was negotiated in 1 case, and the PDDH made recommendations in 3 cases. Of all complaints resolved, 15 of 33 were for PNC violations of the right of personal integrity. During the year, the IG received 548 petitions to investigate cases of alleged personal integrity violations. Human rights awareness is a standard component of police officers' basic training.
In July, street vendors in downtown San Salvador rioted in response to enforcement of a municipal decree limiting the locations of their stalls. The vendors attacked Municipal Police (CAM) officers, who responded with rubber bullets. According to the AG, CAM officers threatened Red Cross workers. FESPAD, a legal nongovernmental organization (NGO), criticized the role of the municipal police and stated that they had used excessive force in quelling the riot. Passing commuter Melvin Guadalupe died from a stray bullet, the source of which remained under investigation at year's end.
In October, the Administrative Dispute Chamber of the Supreme Court ordered the payment of indemnifications totaling more than $600,000 to PNC officers who were dismissed illegally through an expedited procedure for combating corruption known as Decree 101. Additionally, the Court ordered the reinstatement of Mauricio Arriaza Chicas, who was accused of collecting fraudulent evidence.
Prison conditions remained poor. Overcrowding constituted a serious threat to prisoners' health and lives. In May, prisoners at the Santa Ana Penitentiary went briefly on a hunger strike to protest limits on women visitors' access to prisoners. The director of the Santa Ana Penitentiary stated that the security measures were necessary to prevent women from smuggling drugs into the prison. In September, 65 prisoners in the Metapan Penitentiary, in the country's northwestern zone, suffered food poisoning. Overcrowding in individual facilities continued as the prison population increased for the fourth consecutive year. At year's end, 12,073 prisoners were held in 24 prison facilities with a combined design capacity of 7,312, and there were 31 men and 9 women in 2 secure hospital wards with a combined design capacity of 75 persons. During 2003, the prison authorities instituted a new system to reward prisoners who exhibited good behavior and fulfilled all legal requirements with weekend ambulatory privileges. On the other hand, those prisoners who displayed dangerous or violent behavior were restricted to maximum security. In August 2003, the authorities inaugurated a maximum security prison with a capacity of 400.
A private contractor provides prisoners' food based on professional dieticians' recommendations; clinics in each prison provide medical care.
Gangs continued to exercise influence within the prisons and judicial system, and prisoners reportedly continued to run criminal activities from their cells. In May, the Director of Prisons found that members of the Mara Salvatrucha gang supervised criminal activity while incarcerated. Additionally, the Director discovered that gangs encouraged criminal activity by children to take advantage of lower maximum sentences for persons under the age of 18.
Prison authorities reported that there were 59 deaths from violence and natural causes in the prison system during the year. On August 18, a riot between gang members and nongang members at the La Esperanza Penitentiary, better known as "Mariona" prison, left 31 prisoners dead and 28 injured. In September, Director of Prisons Rodolfo Garay Pineda transferred all Mara Salvatrucha gang members to the Quezaltepeque and Ciudad Barrios prisons and all Mara 18 gang members to Chalatenango and Cojutepeque. In the wake of the riot, the Government initiated a public dialogue on prisons among judges, prosecutors, human rights NGOs, and others; new procedures were subsequently implemented to better segregate hardened violent offenders from other prisoners. In November, Prisons Director Garay Pineda resigned; Mariona Prison Warden Jose Antonio Guzman Blanco was indicted in December for negligence in preventing and reporting drug trafficking at the facility.
Women prisoners are incarcerated separately from men at an all-women's facility. The law requires that all juveniles be held separately from adults, both prior to trial and while serving a prison sentence, and the Government generally observed this requirement in practice. At year's end, 363 minors were housed in a juvenile prison under the supervision of the ISNA. Gang violence in juvenile holding facilities was a problem. Members of the armed forces provided reform school training for juvenile convicts. Most criminal cases involving juveniles were brought to trial or conciliation proceedings within 3 months.
Because of a lack of holding cells, pretrial detainees were often sent to regular prisons, where they could be placed together with violent criminals.
The Government permitted prison visits by independent human rights observers, NGOs, and the media, who in practice monitored prison conditions during the year.
d. Arbitrary Arrest or Detention
The Constitution prohibits arbitrary arrest and detention; however, there were complaints that at times the PNC arbitrarily arrested and detained persons. The IG received 495 petitions alleging arbitrary arrest and detention during the year.
The PNC maintains public security; the Ministry of Defense is responsible for national security. The military provides support for some PNC patrols in rural areas and also provides support to the law enforcement agencies for specific activities, including antinarcotics efforts and reform-school training for juvenile convicts. In September, the Government created the AntiGang Task Force with a total of 333 military personnel to be deployed in high crime areas.
There were charges that PNC officers were involved in criminal activities. For example, in 2003, the authorities arrested 27 PNC officers on alien smuggling charges and fraud. Only 7 of the 27 officers could be apprehended when an appeals court revoked the decision; the remainder had fled. In September, the authorities captured the last officer at large, Carlos Alberto Salmeron Mejia, considered a key element in the perpetration of the crimes. A lower court dismissed the charges against the PNC officers, but an appeals court revoked that decision. In November, a court dismissed charges against National Judicial Branch Security Chief Carlos Adolfo Flores Hernandez, Security Supervisor Gerbert Heriberto Munoz Chicas, and Judicial Protection Agent Fredy Alvarado on charges of facilitating the escape of 14 members of an organized crime group named Banda Tacoma, which operated in Guatemala, Belize, and El Salvador, perpetrating homicides, kidnappings, bank robberies, and other crimes.
During the year, the PDDH received 30 complaints alleging violations of personal liberty, compared with 778 complaints in 2003 and 205 in 2002. The courts generally enforced a ruling that interrogation without the presence of counsel is coercion, and that any evidence obtained in such a manner is inadmissible. As a result, police authorities generally delayed questioning until a public defender or an attorney arrived.
The Constitution requires a written warrant for arrest, except in cases where an individual is arrested in commission of a crime. The law provides that a detainee has the right to a prompt judicial determination of the legality of the detention, and authorities generally respected this right in practice. In general, detainees were promptly informed of charges against them. The Penal Code permits release on bail for detainees who are unlikely to flee or whose release would not impede the investigation of the case. Because it may take several years for a case to come to trial, some prisoners have been incarcerated longer than the maximum legal sentence for their crimes. In such circumstances, a detainee may request a review by the Supreme Court of his or her continued detention.
Generally, criminal detainees have prompt access to counsel of their own choosing or to an attorney provided by the state.
Criminal detainees may be visited by family members.
The law permits the police to hold a person for 72 hours before delivering the suspect to court, after which the judge may order detention for an additional 72 hours to determine if an investigation is warranted. Because of a lack of holding cells, such detainees often were sent to regular prisons, where they could be placed together with violent criminals (see Section 1.c.). The law permits a judge to take up to 6 months to investigate serious crimes before requiring either a trial or dismissal of the case. In exceptionally complicated cases, the prosecutor or either party may ask the appeals court to extend the deadline for 3 to 6 months, depending on the seriousness of the crime. However, many cases were not completed within the legally prescribed time frame. The Penitentiary Directorate reported that 4,247 inmates were in pretrial detention at year's end, compared to 4,514 in 2003 (see Section 1.c.). According to the Supreme Court, during the year the judicial system received an average of 22.8 criminal cases per day, compared with an average of 19 per day in 2003.
e. Denial of Fair Public Trial
The Constitution provides for an independent judiciary, and the Government generally respected this provision in practice. However, the judiciary suffered from inefficiency and corruption. During the year, the SCJ took some steps to address these problems.
Impunity from the country's civil and criminal laws continued, particularly for persons who were politically, economically, or institutionally well connected. Corruption in the judicial system contributed to impunity.
In October, a court released from house arrest Nelson Garcia, former President of the Salvadoran Bar Association and 2003 candidate for the Supreme Court. Garcia was accused of child pornography and abuse after hundreds of pornographic videos were found in his house. After 8 months, the authorities apprehended Garcia and put him under house arrest rather than jailing him. A judge later released Garcia due to legal technicalities; women's organizations, including CEMUJER and DIGNAS, condemned the decision. In November, the AG announced that he could not find legal grounds with which to appeal Garcia's release.
In August, research by the Evangelical University of El Salvador concluded that the judicial system was susceptible to political and economic influence.
In March, criminal court legal clerk Gracilea Roque was charged with providing confidential judicial information to the attorney of defendant Raul Garcia Prieto, who was under house arrest following his indictment for bank fraud. According to investigators, on learning that the judge in the case had drafted a sentence directing that Garcia Prieto be incarcerated, Roque advised Garcia Prieto's attorney, facilitating the defendant's flight from justice. The Supreme Court ordered the dismissal of the judges that had granted house arrest to Garcia Prieto but reinstated them in July. The Supreme Court also ordered the prosecution of Roque, but a criminal court released her in October due to lack of evidence.
In July, a judge exceeded her authority by ordering that Fernando Palacios Luna, accused of kidnapping and organized crime, be transferred from a maximum to a medium security prison. By law, only the Criminal Council, a multidisciplinary group attached to the Ministry of Governance, can grant prison transfers. The Director of Prisons refused to transfer Palacios Luna to a common prison. However, in August, an appellate court upheld the judge's decision.
The court structure has four levels: Justices of the peace, trial courts, appellate courts, and the Supreme Court. The Supreme Court oversees the budget and administration of the entire court system and selects justices of the peace, trial judges, and appellate judges from a list of nominees proposed by the National Judicial Council (CNJ). The CNJ is an independent body provided for in the Constitution to nominate, train, and evaluate justices. The Legislative Assembly elects, by a two-thirds majority, Supreme Court magistrates from lists provided by the CNJ and the National Association of Lawyers. In September, the CNJ denounced the Supreme Court for not respecting the law and illegally designating a magistrate of a family court in San Miguel.
In September, the President of the CNJ proposed that the judicial branch be reconfigured to address the disparity in workloads among the various courts in the country.
Magistrates serve for periods of 9 years and may be reelected. There are separate court systems for family matters and juvenile offenders; they stress conciliation as an alternative to adjudication. The system also has criminal sentencing courts and penitentiary oversight courts. The former consider the evidence and testimony that have been gathered throughout the trial proceedings, judge innocence or guilt, and determine sentences. The latter monitor the implementation of sentences.
Through its Department of Judicial Investigation, the Supreme Court regularly receives and investigates public complaints about judicial performance. This department also reviews the findings and recommendations of the CNJ, which evaluates justices on an ongoing basis. The Supreme Court imposes penalties when warranted. As of September, the Judicial Investigation Section of the Supreme Court had received 152 petitions. It investigated 19 cases and sanctioned judges in 3 cases. During January and June 2003, the National Judiciary Council evaluated 645 judges and magistrates, and recommended sanctions against 47 judges, mostly for violations of due process.
NGOs and knowledgeable observers claimed that the Supreme Court did not respond adequately to public criticism, and did not make a comprehensive effort to remove unqualified and corrupt judges. The Supreme Court emphasized that its Department of Judicial Investigation and the CNJ performed that function by scrutinizing judicial performance on an ongoing basis.
In practice, the Court imposed few sanctions upon judges based upon the recommendations from the CNJ and the Department of Judicial Investigation.
In May, legal clerks of a Santa Ana Court asked the Supreme Court, to the dismissal of a Justice of the Peace for violating labor standards and legal procedure. They alleged that the Justice of the Peace forced them to substitute for him at hearings without appropriate authorization, a violation of constitutional rights and due process. In addition, the Justice of the Peace compelled his staff to work extra hours at his residence. At year's end, the case remained under investigation by the Supreme Court's Judicial Investigation Unit.
As of September, the Supreme Court was investigating more than 300 cases of irregular law diplomas. In May, the Supreme Court reconfirmed the dismissal of one sentencing judge for having an irregular law diploma. The Ministry of Education presented a list of 199 lawyers, including the sentencing judge, who did not fulfill the legal or administrative requirements to obtain a law diploma.
Judges rather than juries decide most cases, although juries are used in particular phases of the prosecution. Most cases start with a preliminary hearing by a Justice of the Peace court, then proceed to the trial court, which determines if there is enough evidence to continue the prosecution, and whether a jury or a sentencing court should hear the case. Juries hear only those cases that the law does not assign to sentencing courts. After the jury's determination of innocence or guilt, a tribunal decides the sentence. A jury verdict cannot be appealed; however, a judge's verdict may be appealed.
The Juvenile Legal Code requires that minors from 12 to 17 years of age be tried only in juvenile courts, limits sentences for minors to a maximum of 7 years, and includes alternatives to incarceration. In July, the Legislative Assembly modified the Criminal Code, Criminal Procedure Code, Juvenile's Offender Law, and Penitentiary Law in response to an April Supreme Court decision that the October 2003 antigang law was unconstitutional. Penalties were increased for conspiracy cases, and the maximum period allowed to investigate a crime when the defendant is a minor was reduced to 60 days. When a child is arrested, police must inform the child's parents or guardians, the solicitor's office, the Attorney General, and the PDDH.
The Constitution provides for the presumption of innocence, protection from self-incrimination, legal counsel, freedom from coercion, and compensation for damages due to judicial error. In practice, compensation for damages due to judicial error was seldom applied. Defendants also have the right to be present in court. These rights were not always respected fully in practice. The Constitution and law require the Government to provide legal counsel for the indigent; however, this requirement also was not always implemented in practice.
In June, a 7-year-old girl in Ahuachapan testified in the case of her own rape while the alleged perpetrators were present in the courtroom. The AG had failed to request that the court excuse her from testifying in their presence, a standard procedure to protect a child from being compelled to offer testimony under such circumstances. The court released the defendants for lack of evidence, which the AG appealed to the Supreme Court. The Judicial Investigations Unit of the Supreme Court denied the appeal and declined to sanction the judges involved in the case.
Police, prosecutors, public defenders, and the courts continued to have problems with criminal investigations. Inadequate police coverage (due to limited resources) and intimidation of victims and witnesses (especially by gangs) made it difficult to identify, arrest, and prosecute criminals, thus diminishing public confidence in the justice system.
There were no reports of political prisoners.
f. Arbitrary Interference with Privacy, Family, Home, or Correspondence
The Constitution prohibits such actions, and the Government generally respected these prohibitions in practice.
2. Respect for Civil Liberties, Including:
a. Freedom of Speech and the Press
The Constitution provides for freedom of speech and of the press, and the Government generally respected these rights in practice. Print and broadcast journalists from all major media outlets regularly and freely criticized the Government and reported opposition views. Opposition figures were interviewed routinely in the press and on television and radio.
There are 5 daily newspapers, with a combined daily circulation of more than 250,000, and 16 television stations. Five independent and one government-owned and operated VHF television stations reach most areas of the country, and eight independent UHF stations serve San Salvador. Approximately 150 licensed radio stations broadcast on the FM and AM bands.
According to practitioners and observers, some newspaper editors and radio news directors practiced self-censorship by discouraging journalists from reporting on topics or presenting views that the owners or publishers might not view favorably.
In April, Social Security (ISSS) workers attacked journalists with stones and burned media vehicles during a demonstration against the Government's dismissal of ISSS workers. The Salvadoran Radio Association and the Ombudsman for Human Rights Office condemned the ISSS workers' actions (see Section 6.a.).
On October 22, San Salvador's Third Court sentenced political activist and director of the NGO Liberty Foundation Rafael Menjivar to 3 years in prison for slander in television and radio spots during the lead-up to the March 21 presidential election that outlined FMLN presidential candidate Schafik Handal's alleged participation in kidnappings and murders during the country's 1980-1992 civil war. The sentence was commuted to monitored house arrest, public retractions by Menjivar of his statements, and probation. In November, related charges were dropped against television journalist Moises Urbina, who had discussed Menjivar's case on the air.
At year's end, reforms to Article 187 urged by October 2003 General Assembly of the Inter-American Press Society had not been passed.
The new Legislative Assembly did not reconsider the 2003 bill presented by the NGO Human Rights for the Americas and APES before the previous Assembly to strengthen freedom of speech in accordance with international law.
In 2002, the Inter-American Press Association (IAPA) identified freedom of press problems in several areas, including the absence of laws protecting journalists' right to maintain the confidentiality of sources. In October 2003, the IAPA reported that both political and government organizations blocked journalists from having access to information of public interest.
A provision in the Criminal Code allows judges to close court proceedings if public exposure could prejudice the case. The media and the IAPA have claimed that the provision abridges press freedom.
The Government did not restrict access to the Internet.
The Government did not restrict academic freedom.
b. Freedom of Peaceful Assembly and Association
The Constitution provides for freedom of assembly and association, and the Government generally respected these rights in practice. Some NGOs asserted that the Ministry of Governance delayed approval of legal status for controversial NGOs with human rights or political agendas.
In October, the Ministry of Governance denied legal status to "En Nombre de la Rosa," a homosexual and transvestite association. The association presented a constitutional petition before the Supreme Court of Justice, that was ongoing at year's end.
c. Freedom of Religion
The Constitution provides for freedom of religion, and the Government generally respected this right in practice. The Constitution specifically recognizes the Roman Catholic Church and grants it legal status. In addition, the Constitution provides that other churches may register for such status in accordance with the law.
For a more detailed discussion, see the 2004 International Religious Freedom Report.
d. Freedom of Movement Within the Country, Foreign Travel, Emigration, and Repatriation
The Constitution provides for these rights, and the Government generally respected them in practice.
The Constitution prohibits forced exile, and the Government observed this prohibition.
The law provides for the granting of refugee status or asylum in accordance with the definition in the 1951 U.N. Convention Relating to the Status of Refugees or its 1967 Protocol, and the Government has established a system for providing protection to refugees. In practice, the Government provided protection against refoulement, the return of persons to a country where they feared persecution. The Government granted refugee status or asylum. The Government cooperated with the office of the U.N. High Commissioner for Refugees and other humanitarian organizations in assisting refugees and asylum seekers. The Government also provided temporary protection to individuals who may not qualify as refugees under the 1951 Convention's 1967 Protocol.
During the year, the Government granted refugee status to 24 Colombians.
In August, the UNHCR liaison officer publicly complained about the Government's attitude toward dozens of Nicaraguans who had moved to the country during the 1980s, but who had never completed application procedures for refugee status.
3. Respect for Political Rights: The Right of Citizens to Change Their Government
The Constitution provides citizens with the right to change their government peacefully, and citizens exercised this right in practice through periodic, free, and fair elections held on the basis of universal suffrage. The president and vice president are elected every 5 years by secret ballot. The Constitution bars the president from election to consecutive terms.
Three political parties and a two-party coalition fielded presidential candidates in the March presidential election, which witnessed an unprecedented voter turnout of 63 percent. Most observers reported that the election was free and fair, with few irregularities. Voters elected, with 58 percent of the vote, ARENA party candidate Elias Antonio "Tony" Saca. Under the law, parties that receive less than 3 percent of the vote (less than 6 percent in the case of a two-party coalition) must be dissolved; however, a December Supreme Court ruling rescinded the ordered dissolution of the Party of National Conciliation and Christian Democratic Party. An October final report on the March election by the OAS praised the new Sole Identity Document (DUI), and encouraged the Government to institute residential voting procedures.
In 2002, the Supreme Court ruled that an article of the electoral code that assigned a specific number of legislators to each department of the country violated the constitutional requirement for representation proportional to the population. One day before the Court announced its decision, the Legislative Assembly modified the law by allocating the number of legislators based on ranges of population. During the year, there were new efforts to amend election law in keeping with this ruling.
Corruption in the executive and legislative branches was a problem.
In an August poll published by the University of Central America's Public Opinion Institute (IUDOP) respondents defined corruption not only as a government official's use of public office for personal gain but also as gang violence, common crime, sexual harassment, and other phenomena. Respondents placed most trust in the PNC to fight corruption while identifying the Comptroller's Office and the courts as the government organizations most subject to corruption.
Laws provide for public access to government information; however, in practice, government budget figures and information involving investigations by the Comptroller's Office are difficult to obtain.
There are no laws or overt practices that prevent women from voting or participating in the political and governmental systems. The country's Vice President is a woman. Nine of 84 legislators were women, with 22 women serving as elected alternate legislators. Two members of the six-person Board of Directors of the Legislative Assembly were women. In the Judicial Branch, 2 out of 15 Supreme Court justices were women. Of the 13 executive branch ministries, 3 constitutionally independent agencies, and 4 special presidential commissioners, 6 were women. Women held a substantial number of vice- and sub-ministerial jobs. An estimated 40 percent of the country's judges were female; however, the majority held positions in the lower-level courts.
No one who identifies himself or herself as a member of a minority held a leadership position in the Government or the Legislative Assembly.
4. Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Violations of Human Rights
A wide variety of domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials were generally cooperative and responsive to their views. However, it was sometimes reluctant to discuss worker rights issues with NGOs, and it refused to discuss the topic with the PDDH. Domestic and international NGOs are required to register with the Government, and some reported difficulties (see Section 2.b.). However, in January, the Government granted legal status to the Independent Monitoring Group of El Salvador, an NGO that monitors labor standards in the maquila sector.
Prior to the March presidential election, immigration authorities at the international airport at Comalapa detained on arrival several international election observers (and other travelers mistaken for observers). Their detention was apparently a result of the Ministry of Governance's interpretation of the Constitution, which specifically prohibits foreigners from participating in the country's internal politics. The detained individuals were released after 1 day and allowed free access to observe the election.
The principal human rights investigative and monitoring body is the PDDH, who is elected by the Assembly for a 3-year term. The Peace Accords specifically created the PDDH, which was established formally by an amendment to the Constitution that defined its role. In June, the Legislative Assembly re-elected the incumbent Ombudsman, attorney Beatrice Carrillo, for an additional 3-year term.
During the year, the PDDH accepted 634 complaints of human rights violations, compared with 2,479 in 2003 (see Sections 1.a. and 1.c). The rights most frequently alleged to have been violated included personal integrity, due process, and labor laws. During the year, the PDDH issued 296 resolutions involving 345 complaints filed during the year and previous years. Some of the resolutions addressed multiple complaints with similar characteristics, such as mistreatment by police. The PDDH upheld charges in 190 resolutions, found the accused not to have been responsible in 59 resolutions, resolved 29 cases using its good offices, verified fulfillment of recommendations in 6 cases received during the year, and issued recommendations in 12 cases. In the remaining cases received during the year, the PDDH had not determined whether the facts substantiated the allegations.
5. Discrimination, Societal Abuses, and Trafficking in Persons
The Constitution states that all persons are equal before the law and prohibits discrimination based on nationality, race, or sex. In practice, discrimination against women, persons with disabilities, and indigenous people occurred in salaries and hiring. There were some instances of violence against homosexuals.
Violence against women, including domestic violence, was a widespread and serious problem. The law prohibits domestic violence and provides for sentences ranging from 6 months to 1 year in prison. Convicted offenders are prohibited from using alcohol or drugs and from carrying guns. The law also allows the imposition of restraining orders against offenders. Once a taboo social subject, domestic violence increasingly was recognized publicly and has become a topic for national debate. Government institutions such as the PDDH, the AG's office, the CSJ, the Public Defender's office, and the PNC coordinated efforts with NGOs and other organizations to combat violence against women through education, government efforts to increase enforcement of the law, and NGO support programs for victims. The National Secretariat for the Family, through the Salvadoran Institute for the Development of Women (ISDEMU), defined policies, programs, and projects on domestic violence and maintained a hotline and a shelter for victims of domestic abuse. In August, legislation was passed authorizing judges to allow NGOs to assist victims of domestic violence.
At year's end, ISDEMU had received 4,329 complaints of domestic violence, compared with 4,609 complaints in 2003. The Appellate Family Courts received 25 cases of domestic violence from January through July. Incidents of domestic violence and rape continued to be underreported for several reasons: Societal and cultural pressures against the victim, a fear of reprisal, poor response to victims by the authorities, fear of publicity, and the belief that cases were unlikely to be resolved. In August, the women's NGOs Cemujer, IMU, and AMS conducted a public awareness campaign on violence against women. During this campaign, they revealed that 56.4 percent of the population thought it normal for a man to hit a woman.
In 2003, the decapitated bodies and severed heads of two young women were found at separate locations; the murders fit the pattern of Central American gang ritual slayings. No suspects had been charged at year's end.
The Criminal Code permits the AG to prosecute in the case of a rape, with or without a complaint from the victim, and a victim's pardon may not nullify the criminal charge. The penalties for rape are 6-10 years in prison. The law does not address specifically spousal rape; however, it may be considered a crime if the actions meet the Criminal Code's definition of rape. According to PNC reports, gangs raped 26 women during the year.
The law does not prohibit a person from working as a prostitute; however, it prohibits any person from inducing, facilitating, promoting, or giving incentives to a person to work as a prostitute. Prostitution was common, and there were credible reports that some women and girls were forced into prostitution (see Section 6.c.).
Trafficking in women and girls for purposes of sexual exploitation was a problem (see Section 5, Trafficking).
The law prohibits sexual harassment and stipulates penalties of 3 to 5 years for those convicted of harassment, or 4 to 8 years in cases where the victim was a minor under the age of 15. Fines are added to the prison term in cases where the perpetrator is in a position of authority or trust over the victim. In October, the AG presented charges of sexual harassment against a regional PNC Deputy Commissioner Wilfredo Avelanda. Four women filed charges against Avelanda; the PDDH has registered four additional cases against Avelanda in the past.
Some factories in the EPZs required female job applicants to present pregnancy test results, and they did not hire pregnant women (see Section 6.b.).
The Constitution grants women and men the same legal rights, and the Penal Code establishes sentences of 1 to 3 years in jail for public officials who deny a person's civil rights based on gender. The law prohibits pregnant women from performing strenuous activities in the workplace after the fourth month of pregnancy (see Section 6.e.). All women are entitled to 84 days of maternity leave.
Women suffered from cultural and societal discrimination and had reduced economic opportunities; men often received priority in available jobs and promotions. In particular, women were not accorded equal respect or stature in traditional male-dominated sectors such as agriculture and business. A 2002 U.N. Development Program (UNDP) study reported a literacy rate of 79 percent for women and 85 percent for men. One of the factors that contributed to girls leaving school was teenage pregnancy. According to the Health Minister, 18,574 girls ages 10 to 19 years were pregnant as of October.
The Penal Code establishes a sentence of 6 months to 2 years for employers who discriminate against women in labor relations; however, it was difficult for employees to report such violations because they feared reprisals. In February, the Legislative Assembly criminalized the practice, common in financial and commercial sectors, of asking a woman to take a pregnancy test before hiring her. A 2003 UNDP study showed that women earn on average $3,350 per year, compared with $7,381 for men. The one sector in which there was an exception to this practice was in the EPZs and maquilas, the largest source of new jobs, where women made up 85 to 90 percent of the workforce (see Section 6.b.). However, even in this sector, men held the majority of positions in management and in departments where employees received higher wages, such as cutting and ironing. Training for women generally was confined to low-wage occupational areas where women already held most positions in fields such as teaching, nursing, home industries, and small businesses. According to the same UNDP study, women held 25.7 percent of higher-level positions and 19.7 percent of municipal seats.
Women's organizations such as CEMUJER, Las Dignas, and the Melida Anaya Montes Movement were engaged in promoting women's rights and conducted several rights-awareness campaigns during the year.
The Government worked through state institutions and with UNICEF to promote protection and general awareness of children's rights; however, children continued to be victimized by physical and sexual abuse, abandonment, exploitation, and neglect. The ISNA, an autonomous entity, has responsibility for protecting and promoting children's rights.
Education is compulsory through the ninth grade and nominally free through high school. On average, children in the country attend school through 5.5 grades. The Constitution prohibits persons from impeding children's access to school for failure to pay fees or wear uniforms. In practice, some schools continued to charge students fees to cover budget shortfalls, and the inability to pay these fees or pay for required books, uniforms, and activities prevented some poor children from attending school. In 2003, the Legislative Assembly modified the law so that schools are prohibited from charging students any fees. The Ministry of Education continued to operate a hotline for the public to report school administrators who violated these laws. As of August, the Ministry had received 895 complaints of illegal school fees. Rural areas fell short of providing a ninth grade education to all potential students, in part because of a lack of resources and in part because many rural parents often withdrew their children from school by the sixth grade to work.
Infant malnutrition continued to be a problem, particularly in the coffee-producing zones of Ahuachapan and Sonsonate. During the year, the Government implemented a national plan for infants designed to increase access to potable water, iodized salt, and micronutrients and encourage breast-feeding, but progress was slow, particularly in rural regions.
At year's end, ISNA reported 390 cases of negligence in which children were victims. At year's end, ISDEMU had 1,639 cases of child abuse and mistreatment on file. The ISNA reported 207 cases of child sexual abuse during the year, compared with 143 cases in 2003 and 173 in 2002. A majority of the victims were female. The Olaf Palme Foundation reported that it registered 5 cases of police abuse and mistreatment of street children during the year. Olaf Palme reported 5 cases of sexual abuse (including rape), 13 cases of domestic violence against children, and 8 cases of unpaid child support orders. All cases were reported to the PDDH and to the Attorney General's office. (The NGO reported that in previous years children feared reprisals if they reported abuse.)
Child prostitution was a problem. According to a 2000 UNICEF report, between 10 and 25 percent of visible prostitutes were minors, and an estimated 40 percent of the hidden prostitutes who cater to upper class clients were believed to be minors.
Children, especially those living on the streets, have been trafficked to other countries and for the purpose of sexual exploitation (see Section 5, Trafficking).
Child labor remained a problem (see Section 6.d.).
Trafficking in Persons
The law prohibits trafficking in persons; however, there were reports that persons were trafficked to, from, or within the country. There was no evidence that the Government or individual government officials participated in, facilitated, condoned, or were otherwise complicit in trafficking in persons.
In 2003, the Legislative Assembly penalized trafficking in persons; the law covers all forms of trafficking. The two statutes that dealt most specifically with trafficking assessed criminal penalties ranging from 4 to 8 years imprisonment. However, if the victim is under 18, suffers mental or physical disease, suffers violations to his freedom of transit in a foreign country, dies as a consequence of negligence or imprudence, or if the perpetrator is a law enforcement agent or public officer, the maximum sentence increases by one-third.
In October, legislators modified the Criminal Procedure Code to require that crimes against sexual freedom, including trafficking in persons, be heard during the plenary and public stage by a special collective tribunal composed of three judges, rather than a jury to prevent the release, long common among judicial authorities, of traffickers.
There were no civil penalties for trafficking. During the year, the Government prosecuted eight persons accused of trafficking. Government agencies directly responsible for combating trafficking are the Alien Smuggling and Trafficking in Persons unit of the Attorney General's Office (FGR), the PNC, ISNA, and the Directorate General of Immigration (DGM). However, these units were new and poorly funded.
The country was a point of origin and destination for international trafficking in women and children, particularly the harboring of child prostitutes. Anecdotal information suggested it was also a transit country for international trafficking for the same purpose. Sex trafficking of minors occurred within the country's borders, as did sex trafficking in which commercial sex was induced by force, fraud, or coercion. Most international trafficking victims came from Nicaragua, Honduras, and South America. Particular groups at special risk for trafficking were girls and young women from 12 to 19 years of age, persons from rural and poor areas, single mothers in poor areas, adolescents without formal schooling, adolescent mothers, unemployed young men, and foreign girls. In October, the International Labor Organizations (ILO) stated that children were most vulnerable to becoming victims of trafficking. The ILO's International Program for the Elimination of child Labor (IPEC) developed a database for children involved in prostitution and trafficking that revealed that 125 children in the downtown San Salvador area were involved in sexual exploitation.
There was evidence that San Salvador was a transit point for girls trafficked to Mexico, the United States, and other Central American countries. Some children also were trafficked internally to the port city of Acajutla and to bars and border regions. Children from Nicaragua, Honduras, and South America were trafficked to work in bars in major cities, specifically in San Miguel.
In May, the country's Consul in Chiapas, Mexico, asserted that approximately 200 Salvadoran women worked as prostitutes in Mexico. The Coordinator of the Public Security unit of the municipality, Angel Mateos, asserted that dozens of Salvadoran girls ages 13 to 19 worked as prostitutes in Chiapas. He also linked them with gangs.
In July, authorities arrested Sara Elizabeth Galdamez de Orellana for prostituting three girls ages 14 to 16 in Metapan. However, she was acquitted by a Justice of the Peace for lack of evidence. As of October, the AG was trying to obtain additional evidence to reopen the case.
On October 16, Border Police, acting in cooperation with ISNA, conducted a nationwide sting operation against traffickers. Thirteen traffickers were arrested, and 15 minors were rescued from forced prostitution.
According to police, the most common methods of recruitment were lucrative job offers; inducement into prostitution by family, friends, and smugglers; and kidnapping.
The Salvadoran Network Against Trafficking, composed of the ILO, Catholic Relief Services, Las Dignas, CONAMUS, Flor de Piedra, FESPAD, and CARITAS, provided legal counseling and human rights awareness to victims of trafficking.
The Government detained illegal migrants, including those who might have been trafficking victims. When illegal immigrants who were victims of trafficking were older than 18 years old and did not request assistance or express fear for their lives, they were deported as a matter of policy. Minors were not immediately deported but were instead repatriated, with ISNA cooperating with the counterpart organization in the victim's country of origin. The police encouraged national trafficking victims to press charges against traffickers. A foreign trafficking victim may file a criminal case, but in practical terms, illegal migrants, including foreign victims of trafficking, were deported before they had the opportunity to do so. Victims could apply for temporary residency or refugee status if they were likely to face persecution in the country of origin. Access to legal, medical, and psychological services was accessible on request. Victims of trafficking were not treated as criminals unless they were undocumented workers of legal age. The Government provided assistance to its repatriated citizens who were victims of trafficking.
The Government funded foreign and domestic NGOs that provided services to illegal migrants who might also have been trafficking victims. ISNA provided protection, counseling, and legal assistance to abused, homeless, and neglected children, including those who might also have been trafficking victims.
Persons with Disabilities
There was discrimination against persons with disabilities in employment and education. The law mandates access to buildings for persons with disabilities, but in practice, the Government often did not enforce these provisions. Although efforts increased to combat discrimination and increase opportunities for those with nonwar-related disabilities, they were still inadequate. The Ministry of Labor promoted compliance with a 2000 law that requires that 1 of every 25 employees hired by private businesses be disabled, an increase from the previous requirement of 1 in 50. There was no reliable data on the actual number of persons with disabilities employed, but the unemployment rate among the disabled was significantly higher than that of the general population.
During the year, the National Secretariat of the Family (SNF) estimated that 7 to 10 percent of the population had some form of disability. A 2000-01 study by the World Health Organization in conjunction with local and international partners found that the majority of persons with disabilities were young, lived in rural areas, and had little access to rehabilitation services. It also found that many of the causes of disability were preventable.
Efforts to combat discrimination and increase opportunities for those whose disabilities were unrelated to the war were growing but remained inadequate. The Ministry of Labor promoted voluntary compliance with a 2000 law that requires businesses to employ 1 person with a disability for every 25 employees, an increase from the preexisting requirement of 1 for 50. The Ministry's limited resources and decentralization of its records meant that there were no reliable data on the number of persons with disabilities who were employed; however, the unemployment rate was significantly higher than that in the general population.
Access by persons with disabilities to basic education was limited due to lack of facilities and appropriate transportation. Few of the Government's community-based health promoters were trained to treat persons with disabilities, and they rarely provided such services.
In February, the Legislative Assembly debated and let stand a previously enacted special statutory law authorizing persons with disabilities to be members of municipal boards of directors. However, the National Committee for Disabled Persons (CONAIPD), the Independent Group for a Comprehensive Rehabilitation (ACOGIPRI), and the Salvadoran Association for Blind People alleged that this provision is not enforced in practice.
In May, SNF began a housing project design for disabled persons selected by the CONAIPD.
There were several organizations dedicated to protecting and promoting the rights of persons with disabilities, but funding was insufficient. Foreign funds for badly needed rehabilitation services channeled through the Telethon Foundation Pro-Rehabilitation, a local private voluntary organization, helped address numerous rehabilitation issues and provided alternatives for the education and rehabilitation of persons with disabilities. The Government and national and international NGOs provided funding for the Salvadoran Rehabilitation Institute for the Disabled, which had 10 centers throughout the country and offered medical treatment, counseling, special education programs, and professional training courses.
There were no special rights for indigenous people; however, they were allowed to make decisions regarding their communal lands just as any other landowners under the Constitution. The Constitution states that native languages are part of the national heritage and should be preserved and respected. There were no national laws regarding indigenous rights. According to research done during the year by the NGO Native Land, Jose Matias Delgado University, the Environmental Ministry, and National Geographic, the country has three different classes of indigenous people: Nahua-Pipiles (western and central areas of the country), Lencas (eastern region), and Cacaoperas (eastern region). This research concluded that indigenous people had lost their traditional relationship with the land, that people living in the capital believed that the country did not have an indigenous population, and that in general indigenous people were considered peasants.
Most indigenous people have adopted local customs and assimilated into the general population, from which they now are generally indistinguishable. There were a few very small communities whose members continue to wear traditional dress and maintain traditional customs to a recognizable degree; they did so without repression or interference. These small indigenous groups existed in the poorest parts of the rural countryside where employment opportunities were few and domestic violence was a problem.
Indigenous people reportedly earned less than other agricultural laborers. Indigenous women in particular had little access to educational and work opportunities due to cultural practices, lack of resources, and rural underdevelopment. As with the poor rural sector in general, access to land was a problem for indigenous people. Few possessed titles to land, and bank loans and other forms of credit were extremely limited.
There were some small, active indigenous associations. The best known was the National Association of Indigenous Salvadorans.
Other Societal Abuses and Discrimination
In April, sex workers charged that the January criminal reforms on sexual exploitation were misunderstood by PNC officers and the Municipal Police (CAM). According to the workers, PNC agents arrested transvestites working as prostitutes, although prostitution per se is not a crime in the country.
On March 23, the body of transvestite Jose Natividad Flores Duran was found next to the Catholic church in Cerro Grande, San Vicente; Flores apparently died after having been hit with stones. The same night, unknown persons killed David Antonio Andrade Castellano in a similar fashion in the El Santuario neighborhood, near San Vicente cemetery.
In October, the Ministry of Governance denied legal status to "En Nombre de la Rosa," a homosexual and transvestite association (see Section 2.b.).
In 2003, the human rights NGO named Entre Amigos reported that unknown persons killed three transvestites, Jose Cornado Galdamez, Reyes Armando Aguilar, and Jose Roberto de Paz, as they walked down the main street of Santa Tecla, La Libertad.
Entre Amigos presented a petition before the AG's office; investigations were ongoing at year's end.
In a 2003 program sponsored by the Government of the Netherlands, Entre Amigos trained police officers in respecting the rights of homosexuals; the program ended in February.
6. Worker Rights
a. The Right of Association
The Constitution provides for the rights of workers and employers to form unions or associations, and workers and employers exercised these rights in practice; however, there were some problems. There were repeated complaints by workers, in some cases supported by the ILO Committee on Freedom of Association (CFA), that the Government impeded workers from exercising their right of association. Union leaders asserted that the Government and judges continued to use excessive formalities as a justification to deny applications for legal standing to unions and federations. Among the requirements to obtain legal standing, unions must have a minimum of 35 members in the workplace, hold a convention, and elect officers. According to the Ministry of Labor (MOL), 30 per cent of the country's workforce was unionized.
In May 2003, the Ministry of Labor (MOL) denied registration to the communications union SITCOM for failing to meet the legally prescribed minimum number of 35 affiliated employees. The MOL refused to include radio station workers as part of the communications industry and two union-affiliated workers whom their employer considered management employees, which made them ineligible for union membership. In March, the Administrative Chamber of the Supreme Court ordered the MOL to present a report regarding its denial.
Public agencies that provide essential services have the right to form unions. Military personnel, police, and government workers may not form unions but are allowed to form professional and employee organizations. The Labor Code does not require that employers reinstate illegally dismissed workers. The Labor Code specifies 18 reasons for which an employer can legally suspend workers. The employer can invoke 11 of them unilaterally without prior administrative or judicial authorization. In practice, some employers dismissed workers who sought to form Unions. The Government generally ensured that employers paid severance to these workers. However, in most cases, the Government did not prevent their dismissal or require their reinstatement. Workers and the ILO reported instances of employers using illegal pressure to discourage organizing, including the dismissal of labor activists and the circulation of lists of workers who would not be hired because they had belonged to Unions.
b. The Right to Organize and Bargain Collectively
The Constitution and the Labor Code provide for collective bargaining rights for employees in the private sector and for certain categories of workers in autonomous government agencies, such as utilities and the port authority.
The MOL oversees implementation of collective bargaining agreements and acts as a conciliator in labor disputes in the private sector and in autonomous government institutions. In practice, ministers and the heads of autonomous government institutions often negotiated with labor organizations directly, relying on the MOL only for such functions as officially certifying Unions. The Ministry often sought to conciliate labor disputes through informal channels rather than attempt to enforce regulations strictly, which has led to charges that the Ministry was biased against labor. Labor leaders asserted that the Government had an unfair advantage in arbitration of public sector labor disputes, because the Government holds two of three seats on arbitration panels. (The employer, the workers, and the Labor Ministry each name one representative to a panel.)
The law provides for the right to strike, and workers exercised this right in practice. Fifty-one percent of all workers in an enterprise must support a strike, including workers not represented by the Union. Unions may strike only after the expiration of a collective bargaining agreement or to protect professional rights. Unions first must seek to resolve differences through direct negotiation, mediation, and arbitration before striking. A strike must aim to obtain or modify a collective bargaining agreement and to defend the professional interests of workers. Union members must approve a decision to strike through secret ballot. The Union must name a strike committee to serve as a negotiator and send the list of names to the MOL, which notifies the employer. The Union must wait 4 days from the time the Ministry notifies the employer before beginning the strike.
Public workers who provide vital community services are not allowed to strike legally; however, the Government generally treated strikes called by public employee associations as legitimate.
There were approximately 240 maquila plants, the majority of which were located in the country's 15 Export Processing Zones (EPZs). The Labor Code applies in the EPZs, and there are no special EPZ labor regulations.
There were credible reports that some factories dismissed union organizers, and there were no collective bargaining agreements with the 18 unions active in the maquila sector. As of September, there were 11 unions in the maquila sector. At year's end, the Ministry of Labor reported that the country had 147 active unions and 156 registered unions, 17 labor federations, and 2 labor confederations.
Workers in a number of plants reported verbal abuse, sexual harassment, and, in several cases, physical abuse by supervisors. The MOL had insufficient resources to cover all the EPZs. Allegations of corruption among labor inspectors continued to surface (see Section 6.a.).
In March, Mirna Suyapa Gomez presented a petition before the Deputy Ombudsman for Labor Rights and the Ministry of Labor. Gomez alleged that the maquila Leader Garments dismissed her despite her status as financial secretary of the Salvadoran Textile Industry Union. In September, the MOL confirmed that Gomez had accepted severance payment instead of reinstallation.
The ICFTU reported persistent problems facing female employees in EPZs, including mandatory pregnancy tests and firing of workers who were pregnant (see Section 5).
c. Prohibition of Forced or Compulsory Labor
The Constitution prohibits forced or compulsory labor, including by children, except in the case of natural catastrophe and other instances specified by law, and the Government generally enforced this provision; however, trafficking in persons, primarily women and children, was a problem (see Section 5).
d. Prohibition of Child Labor and Minimum Age for Employment
The Constitution prohibits the employment of children under the age of 14; however, child labor was a problem. According to ILO/IPEC research, more than 220,000 children between the ages of 5 and 13 worked, with 30,000 children employed in hazardous activities. IPEC and MOL programs have helped over 5,000 children depart the workplace and reenroll in school. In September 2003, the Minister of Labor asserted that 67 out of 100 children were engaged in some form of work, including family household work. Minors age 14 or older may receive special Labor Ministry permission to work but only where such employment is indispensable to the sustenance of the minor and his or her family. This is most often the case with children of peasant families who traditionally work during planting and harvesting seasons. The law prohibits those under the age of 18 from working in occupations considered hazardous (see Section 6.e.).
The MOL was responsible for enforcing child labor laws; in practice, labor inspectors focused almost exclusively on the formal sector, where child labor was rare, and in the past few labor inspectors have dealt with child labor cases. The MOL received few complaints of violations of child labor laws, because many citizens perceived child labor as an essential component of family income rather than a human rights violation. The law limits the workday to 6 hours (plus a maximum of 2 hours of overtime) for youths between 14 and 16 years of age and sets a maximum normal workweek for youths at 34 hours. The constitutional provisions apply to all sectors of the economy. However, there is a large informal sector where it was difficult to monitor practices or enforce labor laws. Orphans and children from poor families frequently worked for their own or family survival as street vendors and general laborers in small businesses, mainly in the informal sector. Children in these circumstances often did not complete schooling. There were no reports of child labor in the industrial sector.
In January, Human Rights Watch (HRW) reported that thousands of girls, some as young as age 9, worked as domestics, making them vulnerable to physical or sexual abuse. In May 2003, ILO/IPEC' published a research paper entitled "Understanding Child Labor in El Salvador." According the IPEC data, 1 out of 10 children worked. Children's participation in work activity increased with age; while less than 2 percent of children aged 5 to 9 work, approximately 13 percent of children aged 10 to 14 worked. Child labor was more common in rural areas (15.7 percent) than in urban areas (7.7 per cent). Approximately 60 percent of children worked in the informal sector in micro-agricultural and nonagricultural family enterprises, and they did not receive a salary.
In September, the MOL convened the first meeting of the National Committee Against Child Labor, which, in addition to the MOL, included representatives from the Ministries of Education, Agriculture, and Governance, the private sector, labor groups, and civil society NGOs. In September, an MOL report on the eradication of child labor indicated that 7,000 child laborers had been removed from the worst forms of child labor and reenrolled in school since 1999.
According to a June HRW report, up to one-third of sugarcane workers were children under the age of 18. The same report also revealed that medical care was often not available on the sugarcane farms, and children frequently had to pay for the cost of their own medical treatment.
e. Acceptable Conditions of Work
The minimum wage is set by executive decree based on recommendations from a tripartite committee (which includes government, labor, and business). In 2003, the tripartite committee agreed to raise the minimum daily wage to $5.28 for service employees, $5.16 for industrial laborers, and $5.04 for maquila workers. The agricultural minimum wage remained $2.47, with $3.57 for seasonal agriculture industry workers. The minimum wage with benefits did not provide a decent standard of living for a worker and family.
The MOL is responsible for enforcing minimum wage laws and generally did so effectively in the formal sector. However, some maquila plants underpaid workers and failed to compensate them in accordance with the law for mandatory overtime, and did not pay legally mandated contributions to health and pension programs. As of September, the MOL received 816 complaints alleging that the minimum wage was not paid. The MOL issued 541 sentences that favored workers; the remaining cases were pending. Corruption among labor inspectors and in the labor courts continued to be a problem, although the MOL received an increased budget to hire more inspectors, offer increased training to existing inspectors, and perform more labor inspections.
The law sets a maximum normal workweek of 44 hours. It limits the workweek to no more than 6 days for all workers and requires bonus pay for overtime. By law, a full-time employee is paid for an 8-hour day of rest in addition to the 44-hour normal workweek and receives an average of 1 month's wage a year in required bonuses plus 2 weeks of paid vacation. Many workers worked more hours than the legal maximum; some were paid overtime but others were not.
The Constitution and the Labor Code require employers, including the Government, to take steps to ensure that employees were not placed at risk to their health and safety in their workplaces. These laws prohibit the employment of persons under 18 years of age in occupations considered hazardous or morally dangerous, such as bars and pool halls; the prohibition also applies to hazardous occupations such as agricultural work with poisonous chemicals or factory work with dangerous equipment. The Labor Code prohibits pregnant women from engaging in strenuous physical exertion at the workplace after the fourth month of pregnancy. Health and safety regulations were outdated, and enforcement was inadequate. The MOL attempted to enforce the applicable regulations but had restricted powers and limited resources to enforce compliance. Workers in some maquilas expressed concerns about unhealthy drinking water, unsanitary bathrooms and eating facilities, and inadequate ventilation (problems with dust and heat).