Guide to Legal Research in El Salvador
By Oscar Samour
Oscar Samour obtained a Bachelor of Laws from Universidad Centroamericana Jose Simeon Cañas (UCA) in El Salvador. He has studied additional courses in other institutions, including Columbia University. Currently he is an Associate at Consortium Centro America Abogados in El Salvador.
Published June/July 2007
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Table of Contents
3.1 Executive Branch
3.2 Judicial Branch
188.8.131.52 Constitutional Chamber
184.108.40.206 Habeas Corpus
220.127.116.11 The Amparo
3.2.2 Court of Appeals
3.2.3 First Instance Courts
3.2.4 Courts of Peace
3.4.2 Public Defender’s Office
Located in Central America, El Salvador is the smallest country of the region, with a territory of approximately 22,000.00 km². It shares borders to the west with Guatemala, Honduras to the north and west, and Nicaragua to the southeast. It has a population of approximately 6.5 million. Its largest city is also its capital, San Salvador, with approximately 2.1 million habitants. The official language is Spanish.
Through its history, El Salvador endured a number of military coups and governments, making its democracy fragile and leading the country to an internal conflict between the military government and the guerrilla. After a 12 year conflict, peace accords were signed in Chapultepec, Mexico, on January 16, 1992.
The peace accords also made important changes to many other areas, such as the judicial system, the electoral system, human rights and agrarian law. The peace agreements of El Salvador have served as guidelines to other countries and most recently, they were considered as a model for the installation of democracy in Iraq.
The current Political Constitution of the Republic, hereinafter referred to as “the Constitution”, was passed by the Constitutional Assembly on December 15, 1983, published on December 16, 1983 in the Official Gazette and came in to force on December 20, 1983.
The Constitution is the highest ranking legal body. It contains the fundamental rights and obligations of citizens and public officers. It established the republic as a form of government and the division of power into three braches: the judicial, legislative and executive.
The Constitution establishes that all individuals are bounded in a negative manner, meaning that “no one is forced to doing what the laws do not command or to restraining from doing what the laws do not prohibit”. On the other hand, public officers are bound in a positive manner, meaning that they do not have more powers than those granted to them under the law.
The form of government is established pursuant to the Constitution, which establishes that El Salvador is a free republic and its form of government is a representative democracy.
El Salvador is territorially divided in 14 departments and 262 municipalities, each one governed by a mayor. Each municipality is granted autonomy to issue its own regulations as long as they do not contravene the laws of the Republic.
3.1 Executive branch
It is formed by the President of the Republic, the Vice-president and the Cabinet of Ministers. The President and Vice-president are elected by popular vote for a 5 year period and cannot be reelected for two consecutive periods. Candidates for President and Vice-president must be part of a political party. The Constitution establishes that a majority of half plus one of the votes is needed in order to be elected. All Salvadoran men or women eighteen or older are entitled to vote.
The Ministers are appointed by the President, under what the Constitution calls “positions of trust” and can be removed at his will, too. Currently there are 11 ministries. According to the Constitution, the President must choose individuals of exemplary morals and education.
The requirements set forth in the Constitution to qualify for the Minister position include being at least 25 years old, Salvadoran by birth, and being in full possession of all citizen rights at least six years prior to the appointment as Minister.
The executive branch regulates itself by its internal regulation, which is enacted by the President, the Vice-President and the cabinet of Ministers. This group of officials is known as the Council of Ministers.
The Council of Ministers is in charge of preparing the plan of government and the national budget, which is later submitted to the approval of the Legislative Assembly. Additionally, it has the authority to call on the Legislative Assembly to order the suspension of the constitutional rights in case of war, public calamity or any other special circumstance.
The Judicial Branch is formed by the Supreme Court of Justice, Courts of Appeals, First Instance Courts and Peace Courts. The Constitution establishes that the exclusive competence of the Judicial Branch is judging and executing the rulings issued by its courts, on subjects of constitutionality, civil, criminal, commerce, labor, agriculture and administrative law.
Currently there are 549 courts in the country: 26 Courts of Appeals, 201 First Instance Courts, and 322 Peace Courts.
The Judicial Branch is regulated by the Judicial Organic Law.
The Supreme Court of Justice is formed by 15 justices, each serving a 9 year period. They are elected by the National Assembly and are renewed by thirds every 3 years.
It is divided into 4 chambers: the Civil Chamber, formed by 3 justices; the Constitutional Chamber, formed by 5 justices; the Criminal Chamber, formed by 4 justices; and the Administrative Chamber, formed by 4 justices; each one of them being the highest authority on its subject-matter.
Among them, the most important is the Constitutional Chamber, due to the transcendence of the matters ruled upon by it. Its president is also the president of the Supreme Court.
Established by the Constitution of 1983, the Constitutional Chamber is part of the Supreme Court of Justice, being the highest ranking Court. It has jurisdiction over all the claims related to violations of constitutional rights. It is formed by 5 senior justices, who are elected by the Congress, serving a 9 year period.
The Constitution establishes 2 types of procedures that all individuals can exert and that are dealt before the Constitutional Chamber, being its very purpose of existence: one primarily concerned with the protection of constitutional supremacy through the process of unconstitutionality of laws, executive orders and regulations; the other type concerned with the protection of the individual rights from arbitrary acts of authority, through two processes: the Habeas Corpus, which intends to protect personal integrity and freedom; and the Amparo, which protects the rest of the constitutional rights.
The Habeas Corpus (“body exhibition”) is a process established with the purpose of protecting personal freedom of individuals from constraint by government authorities or other individuals.
The petition of Habeas Corpus can be filed directly at the Constitutional Chamber or in the nearest Court of Appeals if outside the capital city. The individual on whose behalf the petition is filed is brought to the presence of the court where the petition was filed.
It protects the fundamental rights of individuals contained in the Constitution (except personal freedom). This protection is against any act of authority of any public officer and even against the rulings of the Administrative Chamber of the Supreme Court. All citizens can exercise this right.
A claim is filed at the Constitutional Chamber, which must contain the name of the individual whose rights have been violated, the act through which the violation has occurred, the authority that has executed such act and the rights desecrated. Prior to filing a petition of Amparo, the individual must have passed through all the corresponding administrative instances.
When the claim is admitted by the Constitutional Chamber, the act is suspended until the final resolution is issued. This suspension comes into force even if not requested by the aggravated party.
The unconstitutionality process is used to reject laws or dispositions that contravene the Constitution; the rejected disposition is taken out of the legal system and declared void.
The Courts of Appeals are specialized courts, with jurisdiction over the appeals to the rulings of inferior courts and other claims filed before First Instance Courts. They are headed by 2 justices who are appointed by the Supreme Court of Justice.
The Courts of Appeals are called “Second Instance Chambers” (Cámaras de Segunda Instancia), because they are the second stage of the judicial process, prior to accessing the Chambers of the Supreme Court of Justice.
Among their attributions, the Courts of Appeals are also granted jurisdiction over the claims against the state, working as First Instance Courts in such processes. There are 11 Courts of Appeals located in the capital, all of them with different jurisdictions and competences. The rest are established through out the country.
They are headed by one judge who is appointed by the Supreme Court of Justice. There is one First Instance Court for the main areas of the law, such as labor, family, traffic, tenancy, criminal, commercial, minors, etc.
First Instance Courts sometimes work as Courts of Appeals, having jurisdiction over the appeals to the rulings from a Court of Peace, but only on specific matters.
The Courts of Peace are mostly headed by more than one judge, appointed by the Supreme Court. They have jurisdiction over all areas of law, but only in small claims, except for criminal law, where they work as first instance courts in a three-stage process. The law establishes the threshold on each subject matter, to indicate when a case will be dealt by a Peace or a First Instance Court.
The Legislative Branch is represented by the Legislative Assembly, which is formed by 84 Congressmen. They are elected by popular vote every 3 years, and may be reelected. Under the Constitution, Congressmen represent the all citizens of the Nation.
The Legislative Assembly, among others, has the power to enact legislation, ratify international treaties and approve the annual budget.
The Constitution establishes different types of majority of votes that must be reached to take decisions, depending on the nature of the subject matter. For example, bills must be approved by a majority of fifty per cent plus one of the votes of the Congressmen of the Legislative Assembly to be enacted as laws.
Some matters need a special majority. For instance in the case of war, invasion, rebellion, sedition, general calamities or outbreaks some constitutional rights can be suspended, this can only be determined with a majority of the three-quarters of the votes. The same majority must be reached in order to ratify treaties that submit the State to arbitration and also to approve indebtedness by the government.
There are certain requirements that must be fulfilled to qualify as an eligible congressman, which are: being part of a political party, being at least 25 years old, Salvadorian by birth, having a notorious moral and education, being in full possession of all citizen rights from at least six years prior to the appointment as Congressman.
The Attorney General is in charge of defending the interests of the State and the people. He also has the duty to investigate criminal acts and initiate criminal procedures. The Attorney General´s Office is part of the Public Ministry, which was first established by the Constitution of 1939. Under the current Constitution the Attorney General is the representative of the State before third parties.
The Constitution establishes the competences of the attorney general; however the the Attorney General´s Office has its own regulation.
3.4.2 Public Defender´s Office
It was created under the constitutional principle that every person is entitled to a fair trial. It is in charge of defending the interest of individuals before the State. The public defender´s office is the counterpart of the Attorney General in criminal cases.
Additionally, the Public Defender´s Office is in charge of promoting the protection of minors, family rights, and social services.
Created in 1992 by the Peace Agreements, the Public Defender´s Office for the Protection of Human Rights is in charge of the protection and promotion of human rights.
Among its powers, the Public Defender of Human Rights is the enforcer and protector of all human rights, the investigation of any claim regarding this matter and the promotion of judicial and administrative actions in order to preserve Human Rights.
The laws passed by the national assembly are the primary source of law. The Constitution establishes the process for the creation of law, as follows:
· Submission of the bill to be approved to the Legislative Assembly, for its approval.
· Once approved by the Legislative Assembly, it is sent to the president within the next 10 days, for him to sanction and publish the law in the Official Gazette.
· If the President has objections or vetoes the bill, he then has 8 days to return it to the Legislative Assembly with his observations or reasons to veto it.
· If vetoed, the Legislative Assembly can overturn the President’s decision with the majority of two thirds of the votes and send the bill back to be published.
· After an agreement is reached, the publication of the new law has to occur within 15 days.
· The new law becomes legally binding 8 days after its publication in the Official Gazette.
International Treaties are regarded as laws to the Republic. The Constitution establishes that in the event of conflict between domestic law and a treaty, the treaty will always prevail, thus giving the treaties supremacy over domestic law.
Under the Constitution, El Salvador cannot enter into treaties that alter the way of government, the limits and boundaries of the territory, the sovereignty and independence of the republic or the constitutional rights of the human person.
Treaties are negotiated by the President, or its designee. Once signed, it is necessary for the Legislative Assembly to ratify it to come into force. The majority of votes required for the ratification of the treaty will depend on its subject matter.
Being a civil law country, jurisprudence does not have significant relevance and it is only legally binding in areas such as civil, labor and criminal law.
In Criminal and Civil law, it becomes legally binding when there have been 3 continuous and uniform rulings in the same context. Labor law requires 5 rulings. This figure is known as legal doctrine.
These rulings must all originate from any of the chambers of the Supreme Court of Justice; other rulings from inferior courts are not considered legal doctrine or binding.
Public Registries play a significant role in day-to-day law practice. They are created by the law that regulates their specific subject matter. Any interested party can access the public registries to verify the status of trademarks, companies, real property, vehicles, telecommunication licenses, mortgages, pledges, etc.
The most relevant public registries are:
· Commercial Registry
· Intellectual Property Registry
· Real Property Registry
· Telecommunications Registry
· Vehicle Registry
If a person wants to perform legal research in El Salvador for judicial purposes, he/she must take into consideration the following:
· Codes, laws, treaties, regulations, etc. may be found in print in almost any bookstore. However, it is more likely to find them in university bookstores. Compilations of laws of the same subject matter are often found, too.
· The most useful tool for searching for case-law is the webpage of the Supreme Court of Justice (see below). Almost all resolutions issued by the Justices of the Supreme Court are found there.
· The best way for searching for lawsuits or judicial cases filed against or initiated by an individual or corporation, is visiting the Secretaria Receptora de Demandas which is the public office in charge of receiving all judicial claims. However, this office only exists in San Salvador. To perform this kind of search in the rest of the Departments in El Salvador, the interested party must visit each courthouse.
· All though judicial cases are considered public under procedural law, a person must show a legitimate interest in a case to be able to access such cases´ file.
Other state organs
Salvadorian Legal Associations
Salvadorian Law Schools
Web sites containing Salvadorian Laws and case-laws
Laws and Jurisprudence can be found at the Supreme Courts Documentation Center website.
Users can search for the full text of laws based upon the specific area of the law. Areas such as Family law, Administrative law, Constitutional law, Custom law, Minors law, Municipal law, Agriculture law, Notary law, Tax law, Commercial law, Criminal law, Civil law, Environmental and Health law, Labor law. The text of executive orders, regulations, Municipal orders can also be found in this web site.
· National Library “Francisco Gavidia”
The Official Gazette is found in print in the National Press of El Salvador. All laws and regulations (or its corresponding modifications), ratification of international treaties, government announcements, etc. are published there. It is a great tool for research, especially for trademarks, edicts, administrative resolutions, etc.
· Diario Oficial (Official Gazette)
The following books are general references to specific subject-matters of law published by Salvadoran jurists:
· Bonilla, Tiburcio G., Comentarios al Código Civil Salvadoreño, Imprenta Nacional del Dr. F. Sangrini, 1884
· Romero Carrillo, Roberto, Nociones de derecho Hereditario, Corte Suprema de Justicia, 1984
· Lara Velado, Roberto, Introducción al Estudio del Derecho Mercantil, Editorial Universitaria de El Salvador, 1969
· Trigueros, Guillermo, Teoría de las obligaciones, Editorial Delgado, Universidad "Dr. José Matías Delgado", 1984
· Bertrand Galindo, Francisco, Manual de Derecho Constitucional, Centro de Investigación y Capacitación, Proyecto de Reforma Judicial, 1992
· Méndez, José María, Historia Constitucional de El Salvador, Universidad Tecnológica, 1990
· José Manuel Ayala, Manual de Justicia Administrativa, Consejo Nacional de la Judicatura, 2004
· Padilla y Velasco, René, Apuntes de Derecho Procesal Civil Salvadoreño, Universidad Autónoma de El Salvador, 1948
· Arrieta Gallegos, Manuel, El Proceso Penal en Primera Instancia, Imprenta Nacional, 1981
· Arrieta Gallegos, Francisco, Impugnación de las Resoluciones Judiciales Conforme las Leyes Procesales de El Salvador, Impresos Comerciales e Industriales, 1983
· Romero Carrillo, Roberto, La Normativa de Casación, Ministerio de Justicia, 1992
· Tomasino, Humberto, El Juicio Ejecutivo en la Legislación Salvadoreña, Universidad de El Salvador, Editorial Universitaria, 1960
· Miguel Alberto Trejo, Manual de Derecho Penal: Parte General, Centro de Investigación y Capacitación, Proyecto de Reforma Judicial, 1992
· Zeledon Castrillo, Arturo, El Sobreseimiento en Materia Criminal, Editorial Universitaria, 1960
· Magaña, Alvaro, Derecho Constitucional Financiero Salvadoreño, Corte Suprema de Justicia, 1989
· Martínez Moreno, Alfredo, Temas de Derecho Internacional y otras Cuestiones Jurídicas, Sección de Publicaciones, Corte Suprema de Justicia, 2002
· Martínez Moreno, Alfredo, Con toga ... y sin birrete, Sección de Publicaciones, Corte Suprema de Justicia, 2002
El Salvador is a member of the following international organizations, among them include:
- AEC, association of Caribbean states
- IDB, Inter-American Development Bank
- IBE, International Bureau of Expositions
- CCAD, Central American Commission of Ambient and Development
- CCAJ, Central American Court of Justice
- CCP, Central American Permanent Commission for the Eradication of Production, Traffic, Consumption and Use of Illegal Drugs and Psychotropic Substances
- SIC, Social Integration Council
- RCIC, Red Cross International Comity
- CAIPA, Central American Institute of Public Affairs
- IIAC, Inter-American Institute of Agricultural Science
- INTERPOL, International Criminal Police Organization
- PCA, Permanent Court of Arbitration
- ICO, International Coffee Organization
- ISO, International Sugar Organization
- UN, United Nations
- PARLACEN, Central American Parliament
- PAHO, Pan-American Health Organization
- ICERD, International Convention on the Elimination of All Forms of Racial Discrimination
- CITES, Convention on International Trade in Endangered Species of Wild Flora and Fauna
- CIAT, Inter American Center for Tax Administrations
- CTBTO, Comprehensive Nuclear-Test-Ban Treaty; G77, Group of Seventy seven
- CECC, General Secretary of the Educational and Cultural Coordination of Central-America
- CEPREDENAC, Coordination Center for the Prevention of Natural Disasters in Latin America
- IATTC, Inter-American Tropical Tuna Commission; FAO, Food and Agriculture Organization of the United Nations
- III, Inter-American Indigenous Institute
- MIF, Multilateral Investment Fund
- ILAI, Italo-Latin American Institute
- INCAP, Institute of Nutrition of Central America and Panama