5. Prosecutorial considerations | El Salvador | Fighting Domestic Violence

5.1 Police procedures

5.1.1 When do the police get involved in domestic disputes or legal actions?

Whenever the National Civil Police gains knowledge or receives notice that a person is a victim of domestic violence, it must take necessary measures to prevent the victim from being mistreated.

The National Civil Police must then immediately notify the competent court, including preparing a report of what happened. Agents of the National Civil Police may be accepted as witnesses if the aggressor is caught in flagrante delicto (Articles 10-12 of the LADV).

5.1.2 What circumstances effect law firm involvement?

The parties may or may not be assisted by a lawyer, especially when the victim sues the abuser in civil court. If the parties or one of them lack economic resources and request legal assistance from the judge, the state, through the Attorney General's Office, will provide them with an attorney to assist them (Article 38 of the LADV).

5.2 Standard of proof

5.2.1 Is proof required by any legal means?

Proof is required for acts of domestic violence except when the facts asserted by one of the parties are admitted by the other party. However, well-known and obvious facts do not require proof (Article 22 of the LADV; Article 55 of the FPL). In criminal cases, proof is required to find the abuser guilty and the burden of proof rests with the prosecutors. In case of doubt, the judge will consider the facts most favorable to the accused (Articles 6 and 7 of the CP).

5.2.2 Are there any requirements regarding evidence and documents?

All evidence must be produced at a hearing (except for legal exceptions), under penalty of nullity (Article 52 of the FPL). The law does not define any other specific requirements for evidence. For criminal cases, elements of proof will only be valid if they were obtained in a legal way in good faith, due to an unavoidable finding or the existence of an independent source (Article 175 of the CP). Proof must be lawful, pertinent and useful (Article 179 of the CP).

5.2.3 Is proof "beyond a reasonable doubt" required?

In criminal cases, any person charged with a crime will be presumed innocent and will be treated as such at all times, as long as their guilt is not proven. The burden of proof rests with the prosecutors. In case of doubt, the judge will consider the evidence most favorable to the accused (Articles 6 and 7 of the CP). In addition, this law applies the rules of "reasoned judgment" for assessing the evidence (Article 179 of the CP). The LADV applies to domestic violence cases that are not subject to penal or civil law. This law also applies the rules of "reasoned judgment" for assessing the evidence (Article 22 of the LADV).

5.2.4 Is the standard of proof different for ex parte orders?

There is no obligation to present proof. To request precautionary measures or a restriction order the petitioner/victim needs to present a formal request in writing stating the facts (Articles 75 and 79 of the FPL). However, if it is proven that the precautionary measures or restriction order was based on false facts, the petitioner will be responsible for the damages caused, without prejudice to any criminal liability that may arise (Article 81 of the FPL).

5.3 Affirmative defenses

5.3.1 Are affirmative defenses available to the accused?

Yes. There are several situations where the accused/aggressor will not be held criminally liable, including self-defense and insanity (Article 27 of the PC).

5.3.2 Is willful intent required?

Neither the LADV nor the FPL state that willful intent is required in domestic violence cases. The PC, on the other hand, differentiates between willful intent and unintentional crimes in general (i.e., not specifically related to domestic violence) when establishing penalties.

5.3.3 Are false accusations punishable for the victim?

Yes, if it is proven that the precautionary measures or restriction order was based on false facts, the petitioner will be responsible for the damages caused, without prejudice to any criminal liability that may arise (Article 81 of the FPL). In addition, anyone who falsely accuses a person of a crime or participation in it will be punished with imprisonment from one to three years (Article 177 of the PC). Repeated slander against the same person will be punished with a prison term of two to four years and a fine of 50 to 100 days of wages.^[1] Public slander will be punished with imprisonment for two to four years. If repeated slander is carried out publicly, the penalty will be two to four years and a fine of 100 to 200 days of wages (Article 177 of the PC).

Anyone who accuses a person who is not present in a way that damages their dignity or undermines their fame or their own estimation will be punished with imprisonment from six months to two years. Defamation carried out publicly will be punishable by imprisonment for one to three years. Repeated defamation against the same person will be sanctioned with imprisonment of one to three years and a fine of 50 to 100 days of wages (Article 178 of the PC).

5.3.4 How is consent discussed in the law?

The PC discusses consent related to crimes of injury. If the free, spontaneous and express consent of the victim is given, the perpetrator/aggressor will be punished with a prison term only of six months to two years or a fine of 30 to 60 days of wages. The consent given by a minor or an incapacitated person will not be valid and the consent given by their legal representatives will not be valid (this includes injuries and sexual acts) (Articles 147 and 166 of the PC).

5.3.5 Is self-defense or insanity a defense?

In criminal cases, self-defense is a complete defense provided that the following requirements are met: (a) the initial aggression was illegitimate; (b) the defense employed to prevent or repel the aggression was reasonably necessary; and (c) the aggression was not sufficiently provoked by the person exercising the defense. In addition, a perpetrator will not be held criminally liable if, when executing the act, he/she is not in a position to understand the illegality of his/her act or omission for any of the following reasons: (a) mental derangement; (b) serious disturbance of consciousness; and/or (c) delayed or incomplete mental development. In these cases, the judge or court may impose the relevant security measures on the perpetrator, but the perpetrator will only be imprisoned when the crime corresponds to a prison sentence (Article 27 of the PC).

5.4 Witness status

5.4.1 What is a witness's duty to testify honestly and completely?

Neither the LADV nor the FPL states that a witness is obligated to testify. However, the CCP states that any person cited as a witness, regardless of his/her class, jurisdiction, state or condition, is obliged to appear before the judge or court on the day, time and place indicated, and he/she must give his/her testimony by declaration under oath (Articles 299 and 300 of the CCP). For criminal cases, the witness must also give his/her testimony by declaration under oath (Articles 137 and 203 of the CP).

In civil cases, a witness may be punished with imprisonment from two to five years if the witness testifies falsely, or denies or keeps silent about what he/she knows about the facts and circumstances of the case in question (Article 305 of the CCP; Article 305 of the PC). There will be no criminal sanction for false testimony levied when an ascendant, descendant, adopter, adopted person, brother, spouse, partner or person in a similar emotional relationship with the accused testifies in criminal proceedings in favor of the defendant (Article 305 of the CCP).

5.4.2 Who may abstain from testifying in certain situations?

Under family law, there are no impediments to testify like in civil or criminal law. Therefore, any relative (except for minors), neighbor or friend can serve as a witness. However, neither the LADV nor the FPL state that a witness is obligated to testify.

In criminal cases, the alleged perpetrator's spouse, partner, ascendants, descendants, siblings, adoptee and adopter are not required to testify against the accused. However, they may do so if they desire. In addition, more distant relatives of the accused (up to the fourth degree of consanguinity or second degree of affinity, including their guardian or ward) may abstain from testifying against the accused, unless the witness is a complainant or plaintiff, or the act in question was executed against them or a relative of theirs of equal or near degree (Article 204 of the CP).

5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?

For actions under the LADV, there is no obligation for a witness to testify. For civil or criminal cases, a subpoenaed witness may not refuse to testify, except for church ministers, lawyers, notaries and health professionals per professional obligations of confidentiality, as well as journalists (Articles 205 and 206 of the CP).

5.4.4 What is the impact of domestic violence on witnesses who are children?

A judge may issue precautionary measures to protect children in domestic violence or penal cases. Additionally, underage victims may receive special protection when there is a risk of danger because of their involvement in the investigation of a crime or a judicial process, or due to their family relationship with the person involved in them. In the case of underage victims protected by the SLPVW, where the accused is a relative, the judge will prevent the minor from testifying in the presence of the accused to guarantee the probative value of the testimony (Article 29 of the SLPVW).

5.4.5 Can children be called upon to testify?

No. Children and adolescents under 14 years old should not testify (Article 294 of the CP). However, under family law, the judge must allow a minor to testify when he/she has reached 12 years old in all the processes and proceedings that affect him/her; before such age, the judge will have contact with the minor and will discuss it with him/her if possible (Article 7(j) of the FPL).

5.4.6 What is the effect of a child victim on the charges against the offender?

In criminal cases, penalties for crimes against children are more severe, including longer prison sentences. For example, rape is sanctioned with imprisonment of six to 10 years; however, if the crime is committed against minors, the imprisonment term is from 14 to 20 years. If family members (e.g., ascendants, descendants, siblings and adoptive relatives) commit the crime, the perpetrator will be sanctioned with the corresponding maximum penalty, increased by up to a third (Articles 158, 159 and 162 of the PC).

5.5 Penalties and sentencing; penalty enhancements

5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?

The law does not differentiate between first-time and repeat offenders.

5.5.2 Are there criminal penalties?

In domestic violence cases where the facts do not require proof (i.e., the facts asserted by one of the parties are admitted by the other party, or the facts are well known and obvious), the judge may do the following:

Require the aggressor to fulfill the commitments made by him/her at the hearing.
Require the aggressor to pay the victim damages arising from the violent conduct, such as health services, medicine, value of goods and other expenses derived from the domestic violence.
Require the aggressor to procure psychosocial or psychiatric treatment or attend self-help groups specialized in domestic violence using the various programs developed by institutions for the protection of the family.

In the case of acts of domestic violence subject to criminal jurisdiction, penalties will be applied as stated in the PC (Article 28 of the LADV).

Any family member who exercises violence (psychological, physical, sexual or patrimonial violence as indicated in Article 3 of the LADV) will be punished with imprisonment from one to three years (Article 200 of the PC). Anyone who mistreats a minor with physical, moral or psychological damage will be punished with imprisonment for one to three years (if it does not constitute a more serious crime). The same sanction will be applied to any person who causes harm to a minor who is subject to their authority, education, care or surveillance (Article 204 of the PC).

5.5.3 What is the result of a violation of an existing order for protection?

Anyone who disobeys a judicial order or precautionary or protective preventive measures issued by a public authority in the application of the LADV will be punished with imprisonment for one to three years (Article 338 of the PC).

5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?

A victim or the accused/aggressor who fails to appear at a scheduled hearing will incur a fine imposed by the judge without prejudice to the power that they have to make them appear by pressure (Article 35 of the LADV). Additionally, as mentioned above, the aggressor may be obliged to pay the victim damages arising from the violent conduct, such as health services, medicine, value of goods and other expenses derived from the domestic violence (Article 28 of the LADV).

5.6 Post-release restrictions

5.6.1 Does the law notify the victim of the offender's release from custody?

The victim has the right to be heard in the executive phase of sentencing before the offender has been granted permission for release, conditional release or the conditional suspension of the execution of their sentence (Article 106 of the PC).

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