On January 3, 2024, El Salvador adopted Decree No. 929, which institutes legislative reforms to the code of criminal procedure. The decree entered into force on January 9 with its publication in El Salvador’s official gazette.
The reforms focus particularly on international cooperation and extradition proceedings. Central to these reforms is the introduction of article 16-b, which outlines the principles of international cooperation, including the principles of dual criminality or normative identity, reciprocity, specialty or limitation, and extradition or prosecution. (Decree No. 929, art. 1.) Furthermore, the reforms incorporate article 502, which provides a clear definition of and procedural framework for extradition. (Art. 2.)
The decree defines extradition as the procedure whereby one sovereign state formally requests the surrender of an individual currently within the jurisdiction of another country. This individual must be wanted for one or more criminal offenses or must have been convicted under the laws of the requesting state. (Art. 502-A.)
Criteria for Granting Extradition
The reforms stipulate several requisites for granting extraditions. Primarily, the criminal offense in question must be punishable by a custodial sentence, not exceeding the maximum duration permitted under Salvadoran criminal law. Additionally, the penalty for the offense must not surpass the maximum limit regulated by Salvadoran legislation. A fundamental requirement is the assurance of due process for the accused. In instances involving multiple criminal acts, extradition will be contingent on the alignment of those criminal acts regulated by Salvadoran legislation. Should there be a need to extend the extradition request post-submission to encompass additional criminal acts, an extension of the extradition request must be filed. (Art. 502-F.)
Judicial and Diplomatic Roles
The Supreme Court of Justice of El Salvador is vested with exclusive jurisdiction to grant or deny passive extradition requests, while the Ministry of Foreign Affairs is designated as the central authority for managing and facilitating extradition requests and corresponding communications. (Arts. 502-B & 502-C.)
Grounds for Refusal of Extradition
The amended legislation introduces several grounds for refusal of extradition, such as political offenses under Salvadoran legislation, Salvadoran military law exclusivity, special court trials, statutes of limitations in accordance with the Salvadoran criminal justice system, persecution as a motivational factor for the extradition, and lack of reciprocity in extradition of Salvadoran nationals from the requestor country. (Art. 502-G.)
Multiple Extradition Requests
In cases where multiple countries seek extradition, El Salvador will evaluate factors such as the gravity of the criminal offenses, penalties involved, request dates, and the location and timing of each offense (Art. 502-J.)
Consular Assistance and Detention for Extradition
Upon the detention of a foreign national consequent to an extradition request, the attorney general must instruct the Ministry of Foreign Affairs to notify the individual’s home country to ensure consular assistance. (Art. 502-K.) While a diplomatic petition from the concerned country can initiate the detention of the individual sought for extradition, Interpol red notices are considered equivalent to a formal request for detention for extradition purposes. (Arts. 502-L & 502-M.)
Extradition Types and Special Procedures
The decree mentions various types of extradition, including passive, active, and simplified extradition. (Arts. 502-Ñ, 502-AA, 502-X.) It also details special procedures, such as deferred extradition, where surrender can be postponed until domestic legal proceedings are completed, and temporary extradition. (Arts. 502-GG & 502-HH.)
Assisted Evidence and Coordination Hearing
Decree No. 929 specifies the process for mutual legal assistance in criminal proceedings between countries (art. 502-II) and mandates a coordination hearing within three working days following the approval of an extradition request (art. 502-Y).
Stephania Alvarez, Law Library of Congress
February 1, 2024
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