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Kevin against the lies of the police and a judge who insists on keeping him prisoner
Image/ Karina Hernández
March 27 marked one full year of El Salvador’s State of Emergency. During this time, organizations that defend human rights and journalists have documented hundreds of cases of human rights violations of innocent people under the argument that the authorities are in a war against gangs. Over the past year, the country has been the scene of arbitrary arrests, with police and military lying in the arrest records and faceless judges stubbornly refusing to free young people from prison. Many youth are refused freedom even though they can prove their innocence or in good faith can show they do not belong to a gang, and no evidence exists to condemn them. This is a brief account of one of the many cases that journalists at GatoEncerrado receive daily by email or in private messages to our social networks.
By Ezequiel Barrera | March 27, 2023
Translation: Molly Jamison
“I don't understand why the police have lied on the arrest report” says Sandra Hernandez, holding a yellow folder with the documents related to the arrest of her nephew Kevin Herandez at 23 years old. The police and soldiers incriminate him as a member of the Mara Salvatrucha (MS-13) gang of Nejapa, a town that belongs to the department of San Salvador.
In the report the Rural Police based in Nejapa describe a scene similar to thousands of other police reports presented during the state of emergency – reports that have been criticized by human rights organizations for being false. In Kevin’s report the police wrote: “The police and soldiers walked around the town of Nejapa and saw a man who looked nervous when he saw them. They stopped to search him, and didn't find anything illegal, but said that Kevin has a police record showing he is a member of the MS-13 gang that they were informed about upon arrival in the neighborhood.”
When Sandra and Kevin’s other relatives read this report, they were surprised. What they saw and heard on the afternoon of Friday, November 18, 2022, is very different from the official version. The police officers' story, according to his relatives, makes Kevin look like a gang member who was found on the street during a patrol and strips him of the person he really is: a father, husband, employee, Christian and outstanding soccer player.
“The police came to our house saying one thing, but the report tells a completely different story that is simply not true. Everything had been illogical. They’ve come to harass people like us. We grew up in a Christian family, we’ve never hurt our neighbors. And so I don't
understand why the police came in lying about Kevin to arrest him, he has never been a gang member,” Sandra objected.
Kevin’s relatives remember that at 5:30pm on Friday, Kevin was at home in Nejapa taking care of his newborn twins with his wife Sofia Rodriguez. Other family members were home with them and were witnesses when the police came to their house.
Kevin was not on the street, as the police wrote in the record. In fact, he had been disabled for more than a year and it took a lot of effort for him to get around normally after an accident on his motorcycle in August 2021, when he severely fractured his right leg. In order to be able to walk again, he had to undergo a surgery, in which a platinum plate was placed on his ankle, followed by physical therapy treatment. His case was complicated because his body "rejected" the plate and in 2022 the doctors had to keep him for observation to determine if he needed to undergo a second surgery.
Two notes of disability, several X-rays that showed the broken bones from the accident, signed paperwork from the ankle surgery, medical prescriptions, and check-ups with the physical therapist are evidence that Kevin had trouble moving around and that he left the house only for emergencies, for medical appointments, and to attend class for the workforce development programs he was taking. In fact, the morning of November 18 he attended the final class of the course he was taking on soft skills for business.
Due to the same accident and difficulties in getting around, Kevin's bosses at the Pan Pezzuto bakery, where he had worked as an accounting assistant for more than two years, decided to let Kevin work from home to expedite his recovery. This also made it easier for him to help care for his wife, Sofía, during the high risk pregnancy and labor with twins. His babies’ health was complicated, and they were kept in the hospital after birth for medical observation until they were 18 days old.
Adriana, his sister, recalls that when the twins were finally discharged, "Kevin was crazy in love with his babies." Not only Kevin, everyone in the family was ecstatic about the birth of the two children. So that Friday, after his day of working from home and completing his final class for his certificate program, Kevin was already used to his new routine of taking care of the twins - putting them to sleep, feeding them, changing their diapers, and helping his wife in everything he could. That afternoon marked the first full week of having their babies home from the hospital.
“He came with me to all of my prenatal checkups, and I always went with him when he went out. I would check his phone and he had absolutely nothing to hide and he was not walking down any bad paths. For me it is difficult, the truth is that I need him here. It is not easy to be alone with the twins and I have practically fallen into depression ”, says Sofía, Kevin's wife, as she carries one of the babies in her slim arms.
From the only door in and out of their home, standing in the narrow pathway, three police and soldiers with military weapons asked for Kevin:
—“We are looking for Kevin Jonathan Huezo Hernandez,” said a police officer, one relative shared.
—“I’m Kevin” - he came to the door.
—“We need your ID, and your cell phone,” demanded the police officer without any
further explanation.
So Kevin went to his room to find his ID and cell phone, and on the way his wife Sofia asked if everyone was ok. Kevin answered yes, as he didn’t want to worry her, and walked back to the door.
—”We have come because we received an anonymous complaint saying that you work as a ‘post’ for the gang”—the policemen stated, escorting him out of his house and walking him down the pathway to the street. As he walked the 30 meter distance to the street, Kevin showed notable discomfort in his right leg from the effects of his accident.
Fact
"Post"
A gang “post” in gang and police jargon is the gang member who watches from the corner of a community to inform other gang members about the police and military movement in the area.
His family remembers that before getting to the police car, the soldiers did a full body check from head to toe. They took off his clothes in the middle of the pathway, confirming that he had no tattoos, weapons, or drugs. Then they handcuffed his wrists and took him to the police station in Apopa, just north of San Salvador.
"We don't understand how the First Lady of the Nation is saying that they have implemented the new law ‘Nacer con Cariño’ (born with care), when they are stealing parents away from their children, arresting people without any investigation,” Sandra says with disgust, outraged as she retells the story of her nephew’s arrest.
From Apopa, according to the information that his relatives were able to obtain, Kevin was transferred to the ex-women's prison in Ilopango, a facility that the authorities have used during the state of emergency as a holding center for all detainees until they can be sent to
their corresponding prison. Kevin was taken from Ilopango to the prison in Izalco, in the western part of the country.
In these prisons, detainees who were arrested under the state of emergency wait up to six months for their initial hearing, in which a judge reviews their case and decides whether they remain in prison or are released. In most cases, as public defenders have confirmed to GatoEncerrado, the detainees face an abbreviated judicial process. More specifically, there are so many prisoners —more than 66,300 detainees since the congress, dominated by the ruling “Nuevas Ideas” party, approved the state of emergency on March 27, 2022— that up to 200 or more accused persons appear in the hearings. Most are accused of connections to “illegal groups,” a crime that is punishable with 20 to 30 years in prison, as defined by the new Criminal Code that was approved by congress in the first months of the state of emergency. In legal hearings, even though people do not know each other, they are accused of belonging to the same criminal structure. The decision of the judges, in most cases, is that they remain detained for another six months so that the Attorney General's Office (FGR) can find some evidence to prove that they are gang members.
Another way to look at it is that the authorities first arrest people and then they investigate their involvement in gangs or other illegal activity. This is in contrary to legal norms in most states, where people are first investigated before their arrest. In El Salvador, most of the judges are also politically aligned with the Executive Branch, since the congress removed the Chief Justice of the Supreme Court and the Judges of the Constitutional Chambers, and named new judges with affinity to the president’s government. In addition, the congress removed many judges throughout the entire country and replaced them with local judges who are also aligned with the President.
International organizations, like the Human Rights Watch and Amnesty International, have pointed out that El Salvador is living in a deep crisis of human right violations, which mainly affects young men between 18 to 30 years old living in poor communities, mostly in the countryside and outskirts of the cities. Kevin fits this profile perfectly.
Faceless judges who dismiss everything
Kevin's initial hearing was the typical court experience for prisoners in the state of emergency: a faceless judge — a legal figure that was approved by Bukele’s congress so that judges are not identified or questioned — determined that the police file and the interview were enough proof to keep the detainee in prison. As usually happens in these cases, the judges do not ask the police officers to explain the criteria used in their police records, most of which lack details on the evidence leading them to believe someone is a gang member. In these police files there is not even a record of the police officer who prepared them and, for this reason, there is no one to take responsibility for the information that appears in the report.
After Kevin’s arrest, his family decided to take on the extra economic burden of hiring a lawyer, hoping they would be able to request a special hearing to have Kevin’s case reviewed again. They hoped that through a special hearing the truth would come to light and the judge would recognize that Kevin’s arrest was a mistake.
The lawyer, who the family paid over $1,000 dollars, got Kevin a special hearing on February 2, 2023 in order to present proof of his ties to family, work, home, and social networks. They provided documents showing evidence of Kevin’s home, (in his name), his marriage, his employment, and that he is the father of his twin boys. The idea was to prove that Kevin is innocent or at least to show that if granted probation, he would responsibly take all actions necessary to complete the judicial process for the final decision on his case.
On the day of Kevin’s special hearing, his relatives and lawyer presented a long list of documents so that the judge would have no doubts in Kevin’s good conduct and strong ties to his family and home. Their mission had been to provide an overwhelming amount of documentation, so much proof that there could be no room for missing evidence. But their long list of documents was labeled as “insufficient” by the faceless judge, his reasoning to reaffirm his decision to keep Kevin in prison, as stated in the document titled "Assessment of the documentation presented with the intention of accrediting ties", with reference number C4-054-2022 (6).
The first on the list of documents presented as evidence of Kevin’s good conduct was a letter signed by the pastor of “Prince of Peace” evangelical church of Nejapa. This letter certifies that Kevin is a Christian and that Christian community is behind him. In addition, there were 19 affidavits from various people stating their long-time connections to Kevin and their certainty that he is an honest and hard-working young man.
Upon reviewing these affidavits, the judge assessed that "these documents alone do not provide the necessary elements to generate some type of clear ties, since they have to be validated along with other evidence. For this case, they are not sufficient to reinforce any proof of strong social ties."
The list also included a document from the Agricultural Production Cooperative Association “El Angel” which states that Kevin is a known neighbor of the association and owner of the land where, little by little, he built his house as a home to raise his children. In addition, as proof of his ties to his place of residency, his family presented the judge with water and electricity bills in Kevin’s name. The judge denied the bills as proof of residency, stating that there are other things that must also verify his ties to his home.
After proof of his home, the list of documents included a letter verifying his place of employment, issued by the manager of the bakery “Pan Pezzuto,” along with six paystubs from the Salvadoran Social Security administration, two records of disability payments, a letter from the Attorney General’s office certifying that Kevin was in a legal process as the victim of a traffic accident, a certificate in Kevin’s name from the pension office “AFP Crecer” allowing him to apply for temporary payments, and a copy of his criminal background check and police records stating that he has no legal record of any type nor any pending issues with the law.
The judge ruled out the employment letter on the grounds that "it is not notarized and does not include a business license or other document proving the business exists as a registered entity." The judge used this argument despite the fact that Pan Pezzuto is a well-known bakery in the country and has stores in some of the most important shopping centers. Regarding the proof of social security, the judge refuted that it was not accompanied by an
employment contract to establish if it was a "formal or lasting employment relationship, and therefore does not generate sufficient evidence to prove employment ties."
The judge also rejected Kevin and Sofia’s marriage license, which was signed by the mayor of Nejapa, Jorge Alexander Escamilla from the “New Ideas” party, who added a sworn affidavit stating that he has known Kevin for 20 years and confirms that Kevin “is a responsible young man, with Christian values, who has participated in a number of local training courses through the mayor’s office. Through these trainings Kevin has demonstrated to be a citizen of good conduct, and for this reason, the mayor has no reservations in providing strong references for Kevin.” Similarly, the judge rejected both birth certificates of Kevin and Sofia’s twins, born on October 28, 2022.
“There is insufficient proof of family ties, as there have been no elements presented that compliment and demonstrate connections to his immediate family, nothing showing positive interactions that demonstrate family roots,” expressed the judge. Later he added, “The documentation previously provided is insufficient to significantly rule out the danger he presents if he were released.”
After this special hearing, Kevin’s family concluded that regardless of their efforts, it would be impossible to demonstrate his innocence to the judge. They decided it was useless to keep paying the lawyer to try to appeal again or insist on any additional legal processing. It was no longer viable to keep paying their lawyer, especially with the extra costs of the newborn twins and the drop in income without Kevin’s economic support. Additionally, their budget now included monthly $100 payments to the prison for food, clothes, and personal hygiene products for Kevin, items that the state does not provide to inmates. And as if finding the $100 for this monthly payment wasn’t enough burden, Sandra shared that they were never sure if Kevin actually received the care packages from the prison, and they are unable to receive any updates about Kevin’s health and his leg injury.
“I had a very bad experience when I went to wait in line at the prison to try to get information. I had to wait my turn in line, without any shade, with over 100 others who, like me, were waiting to hopefully glean some information about their family member. As I waited in line for hours, I held the care package that I hoped the prison would pass along to Kevin. When it was finally my turn, they sent me to a different window, which was not the designated place to ask for information about inmates. This is abuse. They put you down, and you can feel the physical and mental abuse,” Sandra described.
After everything she had experienced, Sandra finally went to the Office of the Prosecutor for the Defense of Human Rights to submit a formal complaint about the arbitrary arrest of her nephew Kevin. At the office, they listened to her story and wrote up a report of her complaint. But to this day, she has had no updates on the case. She hasn’t even received a notification that they’ve opened an investigation. In reality, it’s no surprise that the prosecutor’s office is an institution that keeps quiet in light of the “serious human rights violations being committed during the state of emergency,” as indicated by many civil society organizations. The leader of the prosecutor’s office, Raquel Caballero de Guevara, was elected in October of 2022 by Bukele’s congress. She was invited to the White House for a press conference to present her in her new position on national television and radio, diverting attention away from the
criticism of the media and civil society that there were proven cases of her corruption from when she previously served as prosecutor.
Kevin, a Christian and a Soccer Player
It is clear from the 19 different affidavits of friends, neighbors, and colleagues that Kevin’s path was clearly marked by good and his volunteering with Christian groups that promote peace and social justice in schools and society. According to those who know Kevin, he is someone who has worked to ensure that other young people seek a path of peace and avoid getting pulled into gangs.
“We’ve always gone to church. Even more, I lead a Christian small group at home and Kevin has always been my assistant. We had youth and adults coming to our house regularly for small group, where we shared God’s word. When I felt discouraged or tired and didn’t want to host our small group, Kevin was always there to encourage me not to give up on our meetings and to persevere in sharing with others about God,” shared his sister Adriana.
His friends and family also emphasized that Kevin was a passionate soccer player in the “Little League” of Nejapa. In fact, the first thing people see when entering his house are the four trophies from first and second place championships. The trophies are proudly on display, on a shelf alongside a Bible, the television, and a video game console.
“Our family has always been very unified. When there was a game, we would all go together and celebrate each goal. It was exciting to go to his games. Lately, though, because of his accident, Kevin was not able to play soccer,” his family members shared.
Sandra added that the state of emergency, Kevin’s arbitrary arrest, and the judge’s stubbornness to keep her nephew in prison are simply the other side of the same coin of the injustices that her family has suffered for years.
“A few years back I lost a house because the gangs forced us to leave. On one side, we have been suffering from the gangs for years, but now we are also suffering from those who are supposed to be protecting us. We are stuck in the middle, and we want justice,” Sandra implores.
