criminal prosecution of the person making the report, or their spouse or ascendants,
descendants, siblings or life companion or partner.”
7.
All the foregoing provisions, although not totally in conformity with each other, may
be harmonized perfectly pursuant to the sound rules of interpretation.
8.
Nevertheless, the Code of Criminal Procedure in force at the time of the facts is
surprising by including an article that disrupts this harmony – article 229: “Anyone who
witnesses the perpetration of an offense subject to public prosecution is obliged to
immediately inform the Prosecutor General, the police or the nearest magistrate. If the
knowledge originates from news stories or reports, the complaint is optional. If the offense
depends on an individual complaint, it is not possible to proceed without this, except for
acts that require urgent investigation.” This provision has been retained in article 216 of
the procedural code currently in force.
9.
This article seeks to impose a reporting obligation on any individual, above and
beyond the provisions of the State’s Constitution. The said provision is incompatible with
the model of a republican and democratic State at the service of the citizen; rather it
reflects the contrary. The State and the law are at the service of the individual it is not the
individual who is at the service of the State or the law.
10.
The citizen or inhabitant has a duty to respect the law, but he is not a police officer
or an agent of justice of the State. Evidently, the case of the official who assumes a
particular responsibility by engaging in the exercise of the power or the administration of
the State is different, because he occupies a particular position of guarantor.
11.
The attempt to impose the duties inherent to agents of its criminal justice system
or to the State’s officials on every inhabitant signifies considering that the latter have an
obligation of total loyalty to the State, and this is not in the nature of an inconsequential
concept of law; rather it belongs to an anthropomorphic or organization-oriented
conception of the State in which the citizens are reduced to the condition of cells, entities
or subsystems at its service.
12.
This requirement of total loyalty was the famous Treue of Nazi law, the violation of
which – disloyalty or Untreue – was considered the ultimate essence of any offense,
because it involved the violation, by omission, of the supposed ethical mandates that
emanated from the people’s community (Volksgemeinschaft), into which the individuality
of every human being of the same race melted.
13.
We could continue to examine totalitarianisms and find similar requirements of
extreme total loyalty to the State by the Stalinist dictatorship of the proletariat or to the
Fascist enterprise as a synthesis of past, present and future generations. But this
requirement of total loyalty has no place within the framework of the democratic and
republic rule of law, where its inhabitants are individuals to whom the State must ensure
the means for self-realization (so that everyone may become what they wish based on
their existential choice) and they may never be used as a medium for the supposed
realization of any transcendent or supra-personal entity such as Volksgemeinschaft, the
dictatorship of the proletariat, the corporate State, national security or any similar
ideological construct.
14.
Be that as it may, it should be emphasized that, even though the provisions of
article 229 of the Code of Criminal Procedure of El Salvador are contrary to the dignity of
the person established in the American Convention, it is not necessary to censure it as
such, because it has the very curious particularity of not being a real legal norm, because
it lacks a sanction since this is not contemplated in article 312 of the Criminal Code, which
falls within the framework indicated by the Constitution.
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