The former magistrate of the Constitutional Chamber of the Supreme Court of Justice (CSJ), Sidney Blanco and the constitutional lawyer, Abraham Ábrego, director of strategic litigation of the Cristosal Non-Governmental Organization, reacted to the panorama of the habeas corpus presented to the Sala during the emergency regime, which in thousands have not been resolved, ensuring that with this attitude they are endorsing arbitrary detentions.
The data provided in an investigative report published on Monday by a morning media, there are currently more than 8,000 habeas corpus that are pending resolution in the judicial system and that basically refer to people captured under the exception regime and still on dates previous.
However, the jurists do not mention the drawers of the Court, filled with lawsuits filed by people who are not gang members or anything similar; that they are not subject to the emergency regime, and that they sleep the “sleep of the just” waiting for the magistrates to fulfill their obligation to defend and ensure that the Constitution of the Republic is defended.
To reinforce the complaint of the aforementioned professionals, we bring into account a case that cannot go unnoticed due to the international implications that it may bring with it.
One year ago, November 2022, a Guatemalan citizen, son of a Guatemalan father and mother; who has never expressed to the authorities his desire to opt for Salvadoran nationality and who remains in the country as a tourist, presented to the Constitutional Chamber of the Supreme Court of Justice of El Salvador, a habeas corpus petition requesting constitutional protection. for having been detained and consigned to a criminal court without being informed of his consular rights, as established in article 36.1 of the Vienna Convention on Consular Relations to which the Salvadoran State is a signatory, thereby incurring what is known as a vice of non-observance of fundamental rights and guarantees provided for in the constitution and in the Procedural Code Art. 346 Pr. Pn. Final paragraph.
Neither the Attorney General’s Office of the Republic, nor the captor agents, nor the court to which said Guatemalan citizen was consigned, fulfilled their constitutional obligation to inform him about his right to receive consular assistance as established by Arts. 11,12,96 and 144 inc. 2nd Cn. 14.1, of the International Covenant on Civil and Political Rights. Art.8.1 of the American Convention on Human Rights, both in relation to Art. 36.1 b) of the Vienna Convention on Consular Relations.
In the habeas corpus petition, identified as HC-2717-2922, it is amply and sufficiently demonstrated that despite having full knowledge of the nationality of the citizen to whom we are referring, he was not informed of his consular right and remains unjustly united to a process that has been going on for more than seven years without even a date having been set for the preliminary hearing (corruption case).
The case is stated in the habeas corpus appeal in a clear and explicit manner in such a way that only hearing the record was sufficient to, at least, resolve the admissibility or non-admissibility of said appeal. That was a year ago and nothing has been resolved about it.
Article 36.1 of the Vienna Convention on Consular Relations, establishes without making any type of distinction, in its paragraph 1, the obligation of the authorities to inform, “without delay”, the foreigner who is arrested, detained or placed in preventive detention. , of the right you have to consular assistance and that any communication you direct to the consular office of your country of origin is transmitted without delay in order to guarantee the effective defense required by the due process guaranteed by the Constitution.
The above means that every detained foreigner must be informed at the time of his arrest, under penalty of nullity, that he has the right to consular assistance, which constitutes an individual right and a minimum guarantee protected within the Inter-American System.
When interpreting the expression “without delay”, contained in article 36.1 of the Convention, it is understood to “immediately inform” the detainee, that is, at the time of his arrest, about the right to consular assistance that assists him and in any case , “before he makes his first statement before the authority.” It is understood that for said information to be effective and achieve its purposes, it must be provided in a clear and precise manner so that it is recorded in the records.
Both former magistrate Sidney Blanco and lawyer Abrego know the scope of this violation, which is why they must express their opinion in order for the Honorable Constitutional Chamber of the Supreme Court of Justice to resolve said appeal.
Article 11 of the Salvadoran Constitution verbatim details that “The person has the right to habeas corpus when any individual or authority illegally or arbitrarily restricts his or her freedom. Habeas corpus will also apply when any authority attacks the dignity or physical, mental or moral integrity of the detained persons.”
The delay in the resolution of the habeas corpus has been described by the director of the Judicial Independence program, Ursula Inadacochea, as “A social wound that will go down in history”, something that the presiding judge of the Constitutional Chamber cannot allow. Oscar Alberto López Jerez.