Conciliation and mediation are not autonomous fundamental rights, reiterates El Salvador's Constitutional Chamber

Archive photograph of an overview of the Supreme Court of Justice of El Salvador (CSJ) in San Salvador (El Salvador). EFE/Rodrigo Sura/Archive The Constitutional Chamber of the Supreme Court of Justice of El Salvador has once again declared that the prohibition on conciliation or mediation in criminal proceedings against habitual repeat offenders is not unconstitutional, a restriction set forth in Article 38, second paragraph, of the Criminal Procedure Code. In September it issued a similar ruling. The decision was issued on September 2, 2026, and published in the Official Gazette on September 14 (the most recent available edition). The plaintiff challenged the provision, arguing that it prevented access to alternative dispute resolution mechanisms due to prior convictions that had already been punished. According to his argument, that consequence violated the material dimension of the principle prohibiting double jeopardy, known as ne bis in idem. The Court analyzed whether the exclusion of habitual repeat offenders from conciliation and criminal mediation implied a new legal consequence for acts already adjudicated. The Chamber concluded that the limitation does not amount to a new penalty or an aggravation of criminal responsibility for prior convictions. The ruling states that it is a legal delimitation of the cases in which mechanisms for the early termination of the process may be applied. An illustration symbolizes the endorsement by the Constitutional Chamber of El Salvador of the prohibition of criminal mediation for repeat offenders under prosecution. (Illustrative image Infobae) The challenged article prevents conciliation or mediation for three categories of defendants: those with the status of habitual repeat offenders, those belonging to illicit groups, and those who had used these mechanisms during the previous five years in any of the offenses included in the legal catalog. In the case of habitual repeat offenders, the restriction is triggered by prior convictions that allow that status to be attributed to the accused. For the Chamber, the provision links access to an alternative outcome both to the characteristics of the act under investigation and to a record that has already been assessed by the judicial system. The Chamber held that conciliation and mediation have constitutional relevance as tools for the peaceful resolution of conflicts and reparation of harm, but affirmed that they do not form part of the essential content of an autonomous fundamental right. For that reason, the legislature has the authority to establish requirements and limits for their application. The ruling considered that the impact resulting from the restriction is of lesser intensity than that which would fall on guarantees such as personal liberty, the right to defense, due process, or the presumption of innocence. The ruling also emphasized that the prohibition does not eliminate the possibilities of reparation for victims. According to the Court, they may pursue the corresponding civil claim through the exercise of the restitution action, under the terms provided by criminal and criminal procedure legislation. The Constitutional Chamber of El Salvador prohibits conciliation and mediation agreements in criminal proceedings against repeat offenders. (Illustrative image Infobae) The Court concluded that the measure pursues constitutionally legitimate aims and meets the requirements of suitability, necessity, and proportionality. The decision identified as protected interests the protection of the victim, the preservation of the legal model of restorative justice, and the legislature's normative configuration power in criminal procedural matters. The Chamber resolved that the alleged unconstitutionality does not exist with respect to the prohibition on conciliating or mediating in offenses committed by habitual repeat offenders, ordered that the ruling be notified to the parties, and provided for its publication in the Official Gazette.