Salvadoran Witness Protection and Its Shortcomings

by Robert Kirkland


The purpose of this post is to look at the Salvadoran Witness Protection program and evaluate who it serves and how effectively it safeguards those who turn evidence against gangs or other criminal elements in El Salvador. In immigration hearings, Salvadorans facing removal and who fear retribution from criminals they turned evidence against often need to justify the inadequacy of police or other legal protections in order to qualify for cancelation of removal under the Convention Against Torture. Based on the current status of the Witness Protection Program in El Salvador, one cannot help but conclude that it is inadequate and fails the majority of its citizens.

The Special Law for the protection of victims and witnesses was issued by the Congress of El Salvador in 2006. The purpose of this law is to regulate protection and care provided to victims, witnesses and anyone else who is in a situation of risk or danger as a result of their intervention in the investigation of a crime or in a judicial process. [1]. In 2007 the President of El Salvador issued the follow-on Regulation for the Special Law for the protection of victims and witnesses. This regulation develops and facilitates the application of the regulations contained in the Special Law for the Protection of Victims and Witnesses [2].

Enforcement of the law is under the direction and coordination of the Executive Technical Unit (Unidad Técnica Ejecutiva, UTE) which aims to provide protection to witnesses in the criminal process. The protection of the program can be extended to the spouse, domestic partner, family members, or other people related to the witness, who, by virtue of their testimony, are at risk. As of 2020, there are 903 persons in the program [3].

In September of 2019, the Director of UTE, Kenia Elizabeth Melgar de Palacios and Salvadoran Attorney General, Raúl Melara, acknowledged that they face financial problems to expand the protection to victims and witnesses. Melgar de Palacios was aware that the homicides of witnesses occur, however, she assured the newspaper La Prensa Gráfica that they are "isolated cases" within a protection program that "serves as an example in the region [4].” However, according to the Salvadoran United National Refugee Agency, the program does not guarantee the lives of witnesses. Sources indicated that some witnesses and victims of crime who were in the witness protection program continued receiving threats and some were attacked and killed [5].

A major shortcoming of the program is that those who testify against low level gangs or criminal elements are often excluded from the program. Even for those in the program, the program only requires the authorities to protect the personal data of people who are going to testify in a case, but does not establish giving other types of protection, such as armed guards or safehouses [6]. Moreover, there have also been arrests of officials who reveal confidential information for those in the program. For example, Legal Assistants Marilín Lisseth Carballo and Estela Zavala of the Salvadoran Investigating Court were convicted of revealing confidential information from protected witnesses to the M18 gang in 2017 [7].

Conclusion

Based on the evidence, the majority of Salvadorans who report low level gang or other crimes in El Salvador do not even fall under the Witness Protection Program—which is most often reserved for those who report higher level criminals. Even for those Salvadorans “lucky” enough to fall under the program, the government has failed to adequately fund and staff the program, resulting in witnesses being harmed by the same criminals they are supposed to be protected from. Overall, there is much work to be done by El Salvador to improve their protection of witness but at this point it fails their citizens.

Notes:

[1] Government of El Salvador, Special Law for the protection of victims and witnesses , April 26 2006, accessed at: https://www.asamblea.gob.sv/decretos/details/386#:~:text=Resumen%3A,O%20EN%20UN%20PROCESO%20JUDICIAL

[2] Government of El Salvador, Regulation for the Special Law for the protection of victims and witnesses, 2007, accessed at: https://www.transparencia.gob.sv/institutions/ute/documents/53917/download

[3] Government of El Salvador, Unidad Tecnica Ejectiva, 2020, accessed at: http://transparencia.ute.gob.sv/Informacion/Documentos/MarcoEstrategico/1204

[4] “Estado incapaz de proteger a más testigos de crímenes,” La Prensa (El Salvador), September 9, 2019, accessed at: https://www.laprensagrafica.com/elsalvador/Estado-incapaz-de-proteger-a-mas-testigos-de-crimenes-20190908-0501.html

[5] Immigration and Refugee Board Canada, “El Salvador: Information Gathering Mission Report - Part 1. Gangs in El Salvador and the Situation of Witnesses of Crime and Corruption,” September 2016, accessed at: https://www.refworld.org/docid/57f7ab794.html

[6] “Testigos huyeron del país por amenazas de pandilla: Fiscalía,” La Prensa (El Salvador), February 21, 2019, accessed at: https://www.laprensagrafica.com/elsalvador/Testigos--huyeron-del-pais-por-amenazas-de-pandilla-Fiscalia-20190220-0692.html

[7]. Report from the Government of El Salvador, October 6, 2017, accessed at: https://www.fiscalia.gob.sv/cabecilla-la-p18-nivel-nacional-condenado-932-anos-carcel-junto-policias-empleados-judiciales-abogados/


About The Author

Robert Kirkland is a retired U.S. Army lieutenant colonel and operational Latin American Foreign Area Officer. He has a B.S. from the United States Military Academy, West Point and a M.A. and Ph.D. in Latin American history from the University of Pittsburgh. He also has a graduate certificate in Latin American Studies from the Center for Latin American Studies at the University of Pittsburgh. He also helps guide students in Service Academy admissions as well as ROTC scholarships. He has provided expert testimony on drug cartel and gang violence in Mexico and Central America since his retirement from the Army in 2014. He can be reached at info@robertkirklandconsulting.com or at his website.


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