The Special Law Against Acts of Terrorism (LECAT in Spanish) was created through Legislative Decree No. 108 of October 11, 2006 and published in the Official Gazette No. 193 on October 17 2006, and since then had been left aside. The application of this law is one of the best mechanisms of the judicial system to condemn and prevent that gang actions continue to get out of hand.
The LECAT should have been applied a long time ago in order to condemn gang members, to this date judges have not applied this special law because the District Attorney’s office has not presented the requirements based on such law in order to accuse gang members. The means are there, but this law should be applied making use of Communications Monitoring Centers or of a Telecommunications Intervention Law, in order to achieve better results.
The application of this law will have an effect of greater reach because it will allow going after the gang leaders once established that these groups have plans and financing to act.
The gang problem has been treated as structures that are dedicated to committing common crimes. However, when such crimes seek monetary earning and they attack the population, the government and/or certain areas of the country, they become terrorist groups.
The Constitutional Chamber of the Supreme Court of Justice, through the ruling of August 24, 2015, concluded that “The Gangs Mara Salvatrucha or MS-13 and Gang 18 or Mara 18, and any other gang or criminal organization that seek accountability for sovereign authority that belongs to the State, frightening and putting in risk or affecting without discrimination the fundamental rights of the population or part of the population, are considered as Terrorists. In consequence, leaders, members, collaborators, advocates and funders, are to be included in the concept of terrorists in their different types of groups and forms of participation, regardless of whether their aim is political, criminal, economic (extortions, money laundering, drug trafficking, etc.) or others.”
The Constitutional Chamber explained that gang advocates are: “Those who among an undetermined group of people or through the diffusion of ideas that exalt crime and its perpetrators through different means of communication, with the purpose to provoke crime or favor its perpetration.” Members of the Chamber established four judgments to differentiate when a person is considered to be an advocate: when the person incites others in committing a crime, making it public, referring to particular crimes and not a “vague stimulation to commit a crime”, and that the motivating conduct projects incitement of a collectivity. All expressions that do not comply with the abovementioned characteristics may not be considered advocacy. This definition guarantees the exercise of freedom of expression and of journalism, when the gang issue is addressed.
As for funders, the description is contained in article 29 of LECAT and the Chamber validates that congress includes in this category all individuals “that are mediate or immediately have relation with a specific criminal activity”, and leave in the hands of criminal judges the assessment of the relevance of the criminal action in order to determine the sanction.
The LECAT in its article 1 defines the reach of the law, establishing that the term “terrorism” implies: “Prevention, investigation, sanction and eradicating the crimes described in said law, as all its manifestations, including its funding and related activities, and that by form of execution, means and methods used, evidence the intention of causing a state of alarm, fear or terror in the population, putting in imminent danger or affecting the life or physical or mental integrity of people, property of significant consideration or importance, the democratic system or the security of the State or international peace; all of the above, with strict adherence to the respect for human rights."
In light of the above considerations, being a fact that by order of the Constitutional Chamber, gangs are considered terrorist groups, this does not imply that all criminal acts committed by such terrorist groups will be considered under the notion of terrorism, meaning that for criminal acts committed by gangs to be valued as terrorism and for the LECAT to apply to them, these acts must comply with the elements detailed above, otherwise the ordinary criminal law would apply.
This ruling sets a precedent for the application of a uniform criteria that only some judges were already using: considering gang members as terrorists. As said, the Constitutional Chamber of the Supreme Court of Justice ruled that the gangs or maras should be considered terrorist groups, as well as any criminal organization that attempts, frightens or endangers the rights of the population, "whether such armed groups or criminal organizations have political, criminal, economic purposes (extortion, money laundering, drug trafficking, etc.), or other" reads the statement.
From this new condition, not only should the shape and national security policies to combat this new episode of terrorism in the country change, but there should be an increased demand for insurance contracts that protect against this type of risk that includes the population, the productive sector and the government itself.
The government assumes most of the losses in the event of large-scale attacks, an initiative that ensures that the respective insurers to issue policies and businesses are covered. In the words of the insurance market, El Salvador faces a risk that kills and the new condition is called terrorism.
Following the ruling of the Constitutional Court, the need for coverage resurfaces and demand is expected to increase the market share by 3 to 5% over the next five years. Currently, fire insurance policies include involvement by strike, malicious damage and civil turmoil. It is envisaged that companies acquire additional extension to their policies to protect against terrorism. The sectors that should be mainly considered are hotels, shopping centers, restaurants and everything that has exposure to the public.