El Salvador: Guadalupe’s Pardon a Victory, But Still a Long Road Ahead
| By Gabby De Cicco
FRIDAY FILES: On February 18 Guadalupe Vázquez, one of at least 17 women unjustly imprisoned for allegedly having an abortion, was released from prison after being granted a pardon by El Salvador's Legislative Assembly.
By Gabby De Cicco
AWID spoke to Morena Herrena, President of “Agrupación Ciudadana para la despenalización del aborto” (Citizens' Organization for Decriminalizing Abortion) about the importance of this pardon and the next steps for securing the release of women who are still imprisoned.
Guadalupe Vázquez had already served seven of the 30-year sentence she received after experiencing complications during childbirth resulting in the stillbirth of her child. El Salvador is one of seven countries in the Latin American and Caribbean region where abortion is forbidden on all grounds.
Prior to 1998 abortion was permitted in three instances - when women's lives were at risk; when the pregnancy was the result of sexual violence or when the fetus the woman was carrying had defects. But In 1997and as part of the Peace Agreements, a new Criminal Code(CC) was passed. Chapter II "On crimes against the life of human beings in the first stages of development" included the complete criminalization of abortion. Two years later, the National Constitution was amended and because of strong lobbying by the Catholic Church and some Evangelical groups, recognition of personhood from the moment of conception was included in Article 1. In legal terms, the Constitutional change has acted as a lock that prevents the Criminal Code from being amended, because it would then contradict the Constitution.
Citizens’ Organization for Decriminalizing Abortion identified 17 women currently unjustly incarcerated as a result of these legal changes in El Salvador, some of whom are facing sentences of up to 40 years in prison because of obstetric complications. Sara Garcia told AWID last September, "We managed to identify a common profile for ‘The 17’ - they were young women, reported by public hospitals, and some of them did not even know they were pregnant".
On April 1, 2014, the "Campaign for the 17" began with a caravan travelling from the women's prison to the Legislative Assembly, where the17 pardon requests were delivered.
AWID: What is the context in which The 17 were imprisoned?
Morena Herrera (MH): Just before the amendments to the CC were introduced, some politically conservative sectors pushed for a crackdown on private clinics where abortions were performed, mostly on demand, and for a fee. Because of this persecution, those clinics closed down, driving the practice of abortion further underground; making it more expensive, less accessible and more dangerous to women’s health.
The legal changes, and closing down of the clinics, began to foster a culture of incriminating women, which was aggravated by the Attorney General’s Office that heavily pressured doctors in public health facilities. These facilities, where clients are mainly women who are unable to pay for private care, were expected to report women who may have had abortions, or have themselves reported for covering up a crime. This resulted in women being prosecuted and imprisoned.
Women going to hospital with signs of having had a miscarriage, or a hurried delivery outside a medical facility, are immediately accused of having had an abortion and prosecuted right there, in the emergency ward. The sentence for abortion is 4-8 years of imprisonment, but once the judicial process starts, the crime is relabeled as "homicide aggravated by kinship", based on the fetal death, which carries a sentence of 30-50 years in prison in El Salvador, even when the cause of the fetal death can´t be established.
AWID: What was the process for getting Guadalupe pardoned?
MH: There was significant social pressure, nationally and internationally, supporting our Campaign; academics from the USA conducted studies analyzing the files of The 17. These women should never have been imprisoned in the first place because the forensic evidence presented was not consistent enough to lead to such heavy sentences being imposed – 30 or 40 years of prison. With all that pressure, the authorities were forced to give some kind of response, at least in Guadalupe´s case.
The Supreme Court argued that pardon was granted not only on the basis of powerful grounds of justice and equity but also on legal grounds. The principle of “innocent until proven guilty” had not been upheld, as well as the “in dubio pro reo” (in case of reasonable doubt, the course that is most favorable to the accused must be taken). I believe pardon was granted because her case is one in which the legal errors are the most evident, as the Court itself admits.
We think the arguments used in Guadalupe’s case also apply to the other cases, but because the reactions of fundamentalist groups to Guadalupe’s pardon have been fierce, this may be why the magistrate decided not to pardon any of the other 15 women still in prison.
AWID: Why is this recently granted pardon so important?
MH: It is the first time a woman has been pardoned since the “Special Law on Requests for Pardon” was passed in 1998. In El Salvador, it is unusual for pardons to be granted and the ones that had been given until now only favored men.
It is also the first pardon in which there is a clear recognition that there were no grounds to keep Guadalupe in prison, that is, the Court acknowledged that the judicial system is not infallible. We still need to see what arguments are being used to not grant the other pardons, as, we believe the same grounds invoked in Guadalupe’s case apply to them as well.
AWID: What are the next steps for the other 15 women?
MH: With the release of Guadalupe and the refusal to grant the other 15 pardons, one stage of our work is over. We are committed to these 15 women and to additional five whom we are also defending. We will implement different strategies. Right now, some judges and MPs have told us, off the record, to explore the possibility of alternative sentencing or parole, and we will assess each case on its merits.
We recently had a working meeting with Reproductive Rights Centre and Center for Justice and International Law because we have been seeking international justice through the Inter-American Human Rights System. A team of volunteers is researching alternative sentencing possibilities, and we are going to pursue both paths simultaneously.
We will submit an appeal within the next six months. We have also submitted a claim to the Commission against the El Salvador State - on behalf of Manuela, who had cancer and had a miscarriage and died. In addition, we want to request a per saltum — a mechanism by which the Court will give priority to our claim — for the other 20 cases we have accumulated.
AWID: How will you lobby political parties to amend the Criminal Code?
MH: We are working on a proposal but we don't think it will go through because of the upcoming elections in March. All politicians are terrified of being stigmatized, even those who agree with the need to amend that law. The power of fundamentalist groups in the media is very strong. They have economic and media power, particularly in the mass media.
The ruling party, Frente Farabundo Martí para la Liberación Nacional (FMLN), agrees with the need to amend the law. We have discussed it with them, and some MPs who lean more towards the right have said they support therapeutic abortion, but they are not going to do anything about it in an election year. Once these elections are over we will have more opportunity to push for changes, because politicians will not be under so much pressure to please the voters.
 Chile, the Dominican Republic, Haiti, Honduras, Nicaragua and Surinam are the others
The Criminal Code entered into force in 1998.
As the Court said, "Her guilt is not proven. What is proven is that in her case there are not only powerful reasons of justice and equity but also legal ones related to the accused’s fundamental rights and guarantees, such as the guarantee to be presumed innocent until her guilt has been proven according to law and to have the most favorable approach taken in case of reasonable doubt. For these reasons, we recommend granting pardon for the 30 years of imprisonment sentence imposed on her".