This article was originally published in the newspaper El País.
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Peru’s experience shows that upholding due process and remedying injustices does not weaken security. El Salvador now faces a similar challenge: consolidating its gains against violence without abandoning the rule of law.
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: during the presidency of Alberto Fujimori, the current president’s father, measures were adopted to correct mistakes made in the fight against terrorism, one of the defining features 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 emergency. These follow statements made months earlier by his brother, Ibrahim Bukele, who mentioned the existence of a commission to review cases involving innocent people. Although the details of both initiatives remain unknown, these statements may indicate 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, equivalent to 1.5% of El Salvador’s population, have been detained under a state of emergency that has already 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. Subsequently, reforms were enacted that facilitated the early retirement of more than 200 judges and prosecutors. Against this institutional backdrop, the state of emergency has led to mass detentions, most without judicial warrants, and criminal proceedings based on insufficient evidence, often initiated on the basis of statements by third parties. These measures were accompanied by legal reforms that 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 emergency, 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 that gangs exercised for decades. These changes have profoundly affected people’s daily lives: communities once subjected to violence and extortion have reclaimed spaces for community life, many people can travel through areas that were previously off-limits to them, and numerous families now live with a sense of security 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 serious human rights violations that accompany it.
Can security gains achieved at the expense of judicial safeguards and in violation of the state’s international obligations be sustained over time? The experience of other countries shows that this approach creates two distinct but closely related problems. The first is the detention and eventual conviction of innocent people. The second is broader: when criminal proceedings violate fundamental safeguards, the legitimacy of those proceedings and the resulting convictions is called into question, and their legal validity may also be compromised, even if those convicted did in fact commit crimes.
The distinction matters because releasing those who were wrongfully convicted is essential, but it does not, on its own, resolve the problem of proceedings conducted without the required safeguards. Those convictions may eventually be challenged and, where legal grounds exist, overturned. Moreover, due process violations could also give rise to international state responsibility and even international criminal responsibility, as has happened in similar cases. A policy that weakens due process may therefore end up jeopardizing the durability of its own gains against crime.
In this context, Peru’s experience offers a fundamental lesson: correcting both problems does not mean abandoning security, but rather giving its gains a stronger and more lasting legal foundation.
When Fujimori’s Government Acknowledged Its Mistakes
In 1992, Alberto Fujimori’s government enacted extraordinarily harsh antiterrorism legislation to confront Shining Path and the Túpac Amaru Revolutionary Movement (MRTA). This legislation introduced serious restrictions on judicial safeguards: it allowed civilians to be tried before military courts, established “faceless” judges and prosecutors whose identities were concealed, limited the right to a defense, and provided for very severe 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. It was during this period that decisive advances were made in the fight against terrorism, including the September 1992 capture of Abimael Guzmán, Shining Path’s top leader.
As these security gains were consolidated, the grave cost of sacrificing fundamental judicial safeguards also began to become apparent. Numerous people were detained and sentenced to lengthy prison terms, including life imprisonment, for crimes they had not committed. In some cases, convictions relied on testimony from purportedly repentant individuals, 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 the conviction of innocent people.
What might initially have appeared to be a series of isolated cases became a matter of growing public concern. Complaints from family members, human rights organizations, and other sectors brought attention to the injustices committed against 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 applying the antiterrorism legislation. Various legislative proposals were therefore put forward to establish special mechanisms for reviewing the cases of potentially innocent people prosecuted or convicted of terrorism or treason, some promoted by the ruling party itself. Finally, in August 1996, Law No. 26655 established the Ad Hoc Commission, tasked with assessing these cases and recommending that President Fujimori grant pardons or executive clemency terminating pending prosecutions.
The Commission consisted of the ombudsman, who chaired it; the minister of justice; and President Fujimori’s personal representative, 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, including cases in which the Supreme Court had issued final judgments. After reviewing the case files, if it found sufficient grounds to believe that a person had been wrongfully accused or convicted, it recommended that the president grant a pardon or executive clemency, 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 cases of people unjustly 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 the antiterrorism legislation had produced serious injustices that needed to be remedied. 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 also ended up punishing innocent people.
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.
Releasing the Innocent Was Not Enough
Peru’s experience did not end with the review of cases involving innocent people. There was a second, more far-reaching problem: numerous people, regardless of their criminal responsibility, had been prosecuted and convicted of terrorism or treason, which was treated as an aggravated form of terrorism, through proceedings that violated fundamental judicial safeguards. These irregularities did more than affect defendants’ rights: they could also compromise the validity of 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 various judicial guarantees by prosecuting and convicting four people of treason before military courts. The violations it 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 a new trial with full respect for judicial guarantees and to adopt the measures necessary to bring its domestic legal framework, specifically its antiterrorism 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 antiterrorism legislation and declared 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 broader reform toward that end. Through subsequent legislation, the state provided for the annulment of proceedings and judgments for treason and terrorism handed down by faceless judges and established mechanisms for new proceedings before ordinary courts under reformed legislation brought into line with international law.
An essential feature of this judgment and the subsequent legislation was that they did not entail the release of defendants or convicted individuals. The purpose was to replace judicial proceedings incompatible with constitutional guarantees with new trials that would determine criminal responsibility while respecting due process.
Peru thus faced 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 exercise of executive clemency. For those who had been tried through proceedings that violated judicial safeguards, regardless of their possible criminal responsibility, it reformed the legal framework and enabled new trials 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 Peruvian antiterrorism legislation, then-Supreme Court President Javier Villa Stein highlighted the alignment of national legislation with international standards, stating that “this had never happened in any country in the world, where such a large number of judgments were annulled and new proceedings were implemented 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 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 proceedings incompatible with judicial safeguards, even when there was evidence to support holding them criminally responsible.
By reforming the legislation and allowing new trials with appropriate safeguards, the Peruvian state sought both to remedy rights violations and to give judicial decisions greater legitimacy and legal soundness, reducing the risk that they would subsequently be challenged or overturned. Public safety and respect for due process are not competing objectives: the sustainability of security gains also depends on the legality of the decisions that underpin them.
Drawing on Peru’s experience, El Salvador should reflect on how to address the consequences of the state of emergency without giving up the security gains it has achieved. Correcting injustices and restoring judicial safeguards does not mean weakening the fight against violence, but rather strengthening its foundations and ensuring that its results endure. The Salvadoran people have the right to live in a safe country, but also in one where the principles of the rule of law are respected. They should not have to choose between the two.
Katya Salazar is the executive director of the Due Process of Law Foundation.
Photo credit: AP /Ajit Kumar