In June 2019, the American Bar Association’s Center for Human Rights monitored criminal proceedings against Diana in El Salvador as part of the Clooney Foundation for Justice’s TrialWatch initiative. Diana was prosecuted for aggravated homicide in connection with an out-of-hospital delivery. Although the San Salvador court ultimately dismissed the charges against Diana for lack of evidence, the authorities’ conduct throughout the proceedings violated a number of her rights, including the right to liberty, the right to freedom from cruel, inhuman or degrading treatment, and the right to privacy.
Diana is a 31-year old woman from a poor urban community in El Salvador. As documented by mental health professionals, she suffers from psychological issues, including delusions and disordered thinking. On October 31, 2018, Diana gave birth at home, unassisted. The child did not survive and Diana experienced medical complications. She was transported to a public hospital, where she underwent emergency medical procedures.
According to defense counsel, doctors called the police. Investigators arrived soon thereafter, handcuffing Diana to her hospital bed. Two days following her admission to the hospital, Diana was charged with aggravated homicide and transferred to a local jail, then onward to a women’s prison, where she was detained from November 2018 to late January 2019. From late January to May 2019, the authorities shuttled Diana between the prison and a psychiatric hospital, where she received treatment for depressive episodes.
During this pretrial stage, the authorities repeatedly violated El Salvador’s obligations under the American Convention on Human Rights (American Convention) and the International Covenant on Civil and Political Rights (ICCPR). The court’s decision to detain Diana pending trial lacked adequate justification. As established by the Human Rights Committee and Inter-American Court and Commission, pretrial detention should be the exception and is only appropriate for limited purposes: to prevent risk of flight, risk of recurrence of crime, and risk of interference with the proceedings. In evaluating the reasonableness and necessity of pretrial detention, courts must undertake an individualized assessment of the accused’s situation. Vague pronouncements fail to meet this standard and reference to the severity of the charges and/or punishment is insufficient.
In Diana’s case, the presiding court impermissibly relied on the severity of the potential punishment as the basis for its detention order, stating that anyone facing more than three years in prison would inevitably abscond. The court further noted that Diana could attempt to influence a key witness, yet provided no details to substantiate this concern. This vague reasoning contravened the principle that pretrial detention must be supported by an individualized assessment.
At the hearing at which pretrial detention was imposed, Diana was conspicuously absent. According to case documents, there were not enough staff to transport her from the prison to court. As such, the authorities violated not only Diana’s right to freedom from arbitrary detention but also her right to appear before a judicial body to challenge her detention.
The authorities likewise appear to have violated Diana’s right to adequate time and facilities for the preparation of her defense. The autopsy of the child was conducted on the day of the alleged offense and showed that the cause of death was perinatal asphyxia, a common occurrence during birth. The autopsy found no indication that the child had died from trauma or drowning. As this evidence was beneficial to the defense case, the State was mandated to disclose it under the ICCPR and American Convention. According to defense counsel, however, disclosure was delayed for months. The conduct alleged would have undermined Diana’s ability to prepare her defense.
Diana’s pretrial treatment raises concerns beyond the realm of due process. As noted above, doctors at the hospital where Diana sought urgent care allegedly notified the police, in line with documented patterns in El Salvador. The reporting of women on the basis of out-of-hospital deliveries and resulting obstetric emergencies violates the right to privacy. In addition, the forensic expert who oversaw Diana’s gynecological examination provided unnecessary details about her sexual history to the authorities. This conduct constituted an additional violation of her right to privacy.
Meanwhile, Diana was repeatedly subjected to maltreatment. Among other things, she was handcuffed just after giving birth - a practice that various international bodies have made clear constitutes cruel, inhuman, or degrading treatment, prohibited by the ICCPR and American Convention. The authorities also failed to provide Diana with the specialized psychiatric care she required, causing significant suffering. The denial of adequate medical care in detention violates the right to humane treatment.
More broadly, it is marginalized women like Diana who bear the brunt of El Salvador’s policy of prosecuting impoverished women for pregnancy complications beyond their control. El Salvador’s approach is in effect, if not by design, discriminatory on the basis of gender and class. As demonstrated by Diana’s case, the consequences can be grave.