UPDATE: Guide to Legal Research in El Salvador
By Oscar Samour
Oscar Samour obtained an LL.B. from Universidad Centroamericana Jose Simeon Cañas (UCA) in El Salvador in 2006. Additionally, he obtained an LL.M in International Arbitration from Pepperdine University School of Law as a Fulbright Scholar in 2009. Currently he is a Partner at Consortium Centro America Abogados in El Salvador.
Published March 2012
(Previously updated in August 2009)
Table of Contents
3.1 Executive Branch
3.2 Judicial Branch
220.127.116.11 Constitutional Chamber
18.104.22.168 Habeas Corpus
22.214.171.124 The Amparo
3.2.2 Courts 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 northwest, and Nicaragua to the southeast. It has a population of approximately 7 million. Its largest city is also its capital, San Salvador, with approximately 2.1 million habitants. The official language is Spanish.
Throughout 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 guerrillas. 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 El Salvador (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 branches: the judicial, legislative and executive.
The Constitution establishes that all individuals are bounded in a negative manner, meaning, “no one is forced to doing what the laws do not command or restrained 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.
The Executive Branch 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 and women of age 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/her will, too. Currently there are 13 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 position of Minister include being at least 25 years old, Salvadoran by birth, and being in full possession of all citizenship rights at least six years prior to the appointment as Minister.
The executive branch regulates itself by 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 government plan and the national budget, which is later submitted for approval to the Congress. Additionally, it has the authority to call on the Congress 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 556 courts in the country: 27 Courts of Appeals, 207 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 Congress 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 and it is 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 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. Any citizen can initiate a process of unconstitutionality without the representation of an attorney.
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 managed 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 12 Courts of Appeals located in the capital, all of them with different jurisdictions and competences. The rest are established throughout the country making a total of 27.
They are managed 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. There are a total of 207 First Instance Courts located throughout the country, 70 of which are located in San Salvador.
The Courts of Peace are commonly managed 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 operate 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. There are 41 Court of Peace located in the capital and 281 more established throughout the rest of the country.
The Legislative Branch is represented by the Congress, which is formed by 84 Congressmen. They are elected by popular vote every 3 years, and may be reelected. Under the Constitution, Congressmen represent all citizens of the Nation.
The Congress, 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 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 respectable morals and good education and 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/she 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 Attorney General’s Office has its own regulations.
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, as indicated by its name, is in charge of the protection and promotion of human rights.
Among his/her 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 Congress are the primary source of law. The Constitution establishes the process for the creation of law, as follows:
· Submission of the bill to the Congress for its approval.
· Once approved by the Congress, it is sent to the President within the next 10 days, for him/her to sanction and publish the law in the Official Gazette.
· If the President has objections or vetoes the bill, he/she then has 8 days to return it to the Congress with his/her observations or reasons to veto it.
· If vetoed, the Congress can overturn the President’s decision with the majority of two thirds of the votes and send the bill back to the President to be sanctioned.
· 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 any 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 its citizens.
Treaties are negotiated by the President, or its designee. Once signed, it is necessary that Congress ratify it to come into force. The majority of votes required for the ratification of the treaty will depend on its subject matter, as explained above
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 precedent.
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, corporations, partnerships, real property, vehicles, telecommunication licenses, mortgages, pledges, etc.
The most relevant public registries are:
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 research in the rest of the Departments in El Salvador, the interested person must visit the pertinent courthouse of each Department in the country.
· Although judicial cases are considered public under procedural law, a person must show a legitimate interest in a case to be able to access such case’s file.
Other state organs
Salvadorian Legal Associations
Registry of Vehicles
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.
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
· Delgado Brizuela, Aquiles, Derecho Bancario Salvadoreño, s.n., 2007
· Mena Guerra, Ricardo, Valor y Función de la Jurisprudencia en el Derecho Administrativo, USAID, 2011
· Cevallos, Ricardo Augusto, Samour Santillana, Oscar et all, Arbitration in Central America, s.n., 2011
El Salvador is a member of the following international organizations: