This week, Peruvian President Keiko Fujimori is visiting El Salvador to learn firsthand about the security model Nayib Bukele has implemented to combat gang violence. The paradox is that the Salvadoran government could also learn from Peru’s experience: under Alberto Fujimori, the current president’s father, measures were adopted to correct mistakes made in the fight against terrorism—a hallmark of his administration—without giving up the security gains that had been achieved.
The visit coincides with recent statements by President Bukele about a possible review of the cases of people detained under the state of exception. These follow statements made months earlier by his brother, Ibrahim Bukele, who referred to the existence of a commission to review the cases of innocent people. Although the details of both initiatives remain unknown, these statements may suggest some concern within the government about the legal soundness of the detentions and criminal proceedings.
There are compelling reasons for that concern. Since March 2022, more than 96,000 people—the equivalent of 1.5% of El Salvador’s population—have been detained under a state of exception that has now been extended 56 times. Its implementation was preceded by a profound weakening of judicial independence: in May 2021, the Legislative Assembly summarily removed the justices of the Supreme Court’s Constitutional Chamber and the attorney general. Subsequent reforms facilitated the early retirement of more than 200 judges and prosecutors. Against this institutional backdrop, the state of exception has led to mass arrests, most of them without warrants, and criminal proceedings based on insufficient evidence, often initiated on the basis of statements by third parties. Legal reforms also extended detention periods, restricted the right to a defense, and facilitated the widespread use of pretrial detention, among other measures.
Collective proceedings were also established, allowing hundreds of people to be tried in a single hearing (mass trials), and the minimum age of criminal responsibility was lowered from 14 to 12. The human consequences of these measures are extremely serious: national and international organizations have documented hundreds of cases of torture, prolonged incommunicado detention, disappearances following detention, and hundreds of deaths in state custody that have not been investigated. Recently, a group of international experts concluded that there are reasonable grounds to believe that crimes against humanity have been committed in the context of the state of exception, given the scale and systematic nature of the documented violations.
Thus, what was constitutionally intended to be an extraordinary and temporary measure has become a permanent security model in which judicial safeguards disappear.
At the same time, El Salvador has experienced a substantial reduction in homicides and a significant weakening of the territorial control gangs exercised for decades. These changes have profoundly affected people’s daily lives: communities once subjected to violence and extortion have reclaimed spaces where residents can gather, many people can now travel through areas previously off-limits to them, and numerous families now live with a sense of safety that seemed unattainable just a few years ago. These are real transformations that help explain Bukele’s high approval ratings and the broad public support for his security policy, despite the grave human rights violations accompanying it.
Can security gains achieved at the expense of judicial safeguards and in violation of the state’s international obligations be sustained over time? Other countries’ experiences show that this approach creates two distinct but closely related problems. The first is the detention and possible conviction of innocent people. The second is broader: when criminal proceedings violate fundamental safeguards, this calls into question not only the legitimacy of those proceedings and the resulting convictions but potentially their legal validity, even if those convicted did in fact commit crimes.
This distinction matters because releasing people who were wrongfully convicted is essential, but it does not, by itself, resolve the problem of proceedings conducted without adequate safeguards. Those convictions may eventually be challenged and, where legal grounds exist, overturned. Due process violations could also give rise to the state’s international responsibility and even individual criminal responsibility under international law, as has occurred in similar cases. A policy that weakens due process may thus end up jeopardizing the durability of its own results against crime.
In this context, Peru’s experience offers a fundamental lesson: addressing both problems does not mean giving up security, but rather giving its achievements a stronger and more lasting legal foundation.
When Fujimori’s Government Acknowledged Its Mistakes
In 1992, Alberto Fujimori’s government enacted extraordinarily harsh counterterrorism legislation to confront Shining Path and the Túpac Amaru Revolutionary Movement (MRTA). This legislation imposed severe restrictions on judicial safeguards: it allowed civilians to be tried before military courts, introduced “faceless” judges and prosecutors whose identities were concealed, limited the right to a defense, and provided for extremely harsh sentences, including life imprisonment, through summary proceedings. It was accompanied by the so-called Repentance Law, which offered leniency in exchange for cooperation with the authorities. Decisive advances in the fight against terrorism occurred during this period, including the September 1992 capture of Abimael Guzmán, Shining Path’s top leader.
As these security gains took hold, the grave cost of sacrificing fundamental judicial safeguards also began to emerge. Numerous people were detained and sentenced to lengthy prison terms, including life imprisonment, for crimes they had not committed. In some cases, convictions were based on testimony from purportedly repentant collaborators, false accusations, or insufficient evidence. Peru’s experience thus demonstrated how weakening procedural safeguards and judicial oversight increased the risk of miscarriages of justice and convictions of innocent people.
What might initially have appeared to be a series of isolated cases became a matter of growing public concern. Reports from family members, human rights organizations, and other groups brought increasing attention to the injustices suffered by people sentenced to 20 or 30 years in prison, or even life imprisonment, for crimes they had not committed. Recognition of these injustices paved the way for initiatives to review cases and correct mistakes made in the application of counterterrorism legislation. Various legislative proposals were introduced to establish special mechanisms for reviewing the cases of potentially innocent people prosecuted or convicted of terrorism or treason, some of them promoted by the ruling party itself. Finally, in August 1996, Law No. 26655 established the Ad Hoc Commission, tasked with evaluating these cases and recommending that President Fujimori grant pardons or exercise his power to terminate pending prosecutions.
The Commission consisted of the ombudsman, who served as its chair; the minister of justice; and President Fujimori’s personal representative, the Belgian priest Hubert Lanssiers. Its mandate was to examine the cases of people who claimed to have been wrongfully prosecuted or convicted of terrorism or treason, even when final Supreme Court judgments had been issued. After reviewing the case files, if it found sufficient grounds to believe that someone had been wrongfully accused or convicted, it recommended that the president grant a pardon or terminate the prosecution, as appropriate. The final decision rested with the head of state.
It was an extraordinary response to an extraordinary problem. Without replacing the courts, the Commission made it possible to identify people who had been wrongfully deprived of their liberty and recommend measures to remedy their situation. Its creation also represented an acknowledgment by the state itself that the application of counterterrorism legislation had produced grave injustices that needed to be redressed. The experience offered an important lesson: acknowledging and correcting miscarriages of justice did not mean giving up the gains achieved in the fight against terrorism. On the contrary, it made it possible to address the consequences of a security policy that, by weakening judicial safeguards, had ended up punishing innocent people as well.
However, releasing innocent people addressed only part of the problem. A broader question remained unresolved: the validity of proceedings and convictions under legislation that violated fundamental judicial safeguards, even in cases involving people who were actually responsible for terrorist crimes.
The Second Problem: Releasing the Innocent Was Not Enough
Peru’s experience did not end with the review of innocent people’s cases. There was a second, broader problem: numerous people, regardless of their criminal responsibility, had been prosecuted and convicted of terrorism or treason—treated as an aggravated form of terrorism—through proceedings that violated fundamental judicial safeguards. These irregularities affected more than the defendants’ rights: they could also undermine the validity of the convictions and leave them open to subsequent challenges.
A concrete warning came in 1999, when the Inter-American Court of Human Rights issued its judgment in Castillo Petruzzi et al. v. Peru. The Court concluded that the state had violated several judicial guarantees by prosecuting and convicting four people of treason before military courts. The violations identified included restrictions on the right to a defense and other infringements of due process. Consequently, it ordered the state to ensure that they received new trials with full respect for judicial guarantees and to take the necessary measures to bring domestic law—its counterterrorism legislation—into compliance with the American Convention on Human Rights.
At the national level, in January 2003, the Constitutional Court ruled on a constitutional challenge to provisions of the counterterrorism legislation, declaring several of its core provisions unconstitutional. The decision did not order new trials for everyone prosecuted under that legislation, but it laid the groundwork for a broader reform to that end. Through subsequent legislation, the state provided for the annulment of proceedings and judgments for treason and terrorism before faceless judges and established mechanisms for new trials in ordinary courts under revised legislation consistent with international law.
An essential aspect of this ruling and the subsequent legislation is that they did not entail the release of defendants or convicted individuals. The aim was to replace judicial proceedings incompatible with constitutional safeguards with new trials that would determine criminal responsibility while respecting due process.
Peru thus confronted two distinct problems requiring different responses. For people who had been wrongfully prosecuted or convicted, it established an exceptional case review mechanism that could recommend pardons or the termination of prosecutions through presidential clemency. For those tried through procedures that violated judicial safeguards, regardless of their potential criminal responsibility, it reformed the legal framework and made new trials possible where appropriate.
In the years that followed, numerous proceedings for terrorism and treason were annulled, and new trials were held. In November 2009, during a hearing before the Inter-American Commission on Human Rights on due process and Peru’s counterterrorism legislation, then–Supreme Court President Javier Villa Stein highlighted the alignment of domestic legislation with international standards, stating that “this had never happened anywhere in the world: such a large number of judgments had been annulled, and new proceedings had been established with all the requisite safeguards.”
Lessons for El Salvador
The lessons from Peru’s experience are especially relevant to El Salvador. Peru recognized that correcting the wrongful convictions of innocent people was indispensable and created an ad hoc mechanism to address the problem. Over time, however, it became clear that this response, while necessary, was insufficient. A state committed to the rule of law also had to address the consequences of having tried numerous people through procedures incompatible with judicial safeguards, even when there was evidence of their criminal responsibility.
By reforming its legislation and allowing new trials with proper safeguards, the Peruvian state sought not only to remedy rights violations but also to give judicial decisions greater legitimacy and a stronger legal foundation, reducing the risk that they would later be challenged or overturned. Public safety and respect for due process are not competing goals: the sustainability of security gains also depends on the legality of the decisions underpinning them.
Drawing on Peru’s experience, El Salvador should consider how to address the consequences of the state of exception without giving up the security gains it has achieved. Correcting injustices and restoring judicial safeguards does not mean weakening the fight against violence, but strengthening its foundations and ensuring that its results endure. The people of El Salvador have the right to live in a safe country, but also in a country that respects the rule of law. They should not have to choose between the two.
Katya Salazar is DPLF’s Executive Director.
Photo credit: AP Photo/Martin Mejia