As many persons we have met during the last ten days have emphasized the importance of the visit of the Working Group on Arbitrary Detention to Ecuador and expressed their great satisfaction to the delegation, we would like to stress that the Working Group has come to Ecuador at the official invitation of the Government, as part of its standing invitation to the mechanisms of the Commission on Human Rights. We would like also to stress that for the Working Group, this visit is of particular significance given the recent reinstatement of the Supreme Court with the assistance of Mr. Despouy, Special Rapporteur on the Independence of Judges and Lawyers of the Commission on Human Rights, the United Nations System and the international community.
Over the fifteen years of its existence, the Working Group has carried out official visits upon the invitation of the government to countries as diverse as Argentina, Australia, Bahrain, Belarus, Bhutan, China, Indonesia, Iran, Latvia, Mexico, Nepal, Peru, Romania, the United Kingdom, Viet Nam and last year Canada and South Africa. This is in fact the 21st country visit of the Working Group. Although the manner and frequency of arbitrary detention varies from country to country, no country is immune.
The Working Group delegation visiting Ecuador was headed by Ms. Leila Zerrougui, Chairperson-Rapporteur of the Working Group and Ms. Soledad Villagra de Biedermann, one of its members, and further comprised Mr. Miguel de la Lama, Secretary of the Working Group, Mr. Thierry Del Prado, official of the Office of the High Commissioner for Human Rights, as well as two UN interpreters, Messrs Pedro Espinosa and Peter Grimsditch.
In the course of its ten working days in Ecuador the delegation of the Working Group visited, in addition to Quito, the capital, the cities of Guayaquil and Cuenca. The Working Group had the privilege of meeting with the Presidents of the Supreme Court as well as the Quito Superior Court. It also met with representatives of the Congressional Committees on Human Rights and on Criminal Legislation; the Vice-Ministers of Foreign Affairs and of Government as well as the Prosecutor-General. The delegation was also able to hold meetings with representatives of the Departments of Rehabilitation and Social Services, Immigration, Social Development and Youth, and with representatives of the Judicial Police, the Legal Aid Office, and the Ombudsman. The delegation also met with representatives of the competent provincial authorities in the Provinces of Pichincha, Guayas and Azuay, including the Governors of the Provinces of Guayas and Azuay; the Mayor of Cuenca, and representatives of the municipal police of Guayaquil. In Guayaquil, the Working Group held frank and highly informative discussions with members of the Judiciary from different jurisdictions and levels as well as with members of the National Prosecutor’s Office. The Working Group delegation further held meetings with numerous lawyers and representatives of civil society, including in particular representatives of non-governmental organizations active in the fields of human rights, correctional system, women’s and children’s rights, foreigners, persons of African descent and other vulnerable groups in the criminal justice system. The Group also met with representatives of the bar associations and academia, in the three cities it visited.
As always during country visits, an essential part of the Working Group’s program was the visits to institutions where persons are deprived of their liberty: in Quito, the Working Group visited the Provisional Detention Centre, Social Rehabilitation Centre no. 1 (Garcia Moreno Prison), Social Rehabilitation Centre no. 4, the Women’s Social Rehabilitation Centre, the Youth Orientation Centre (Virgilio Guerrero) and the cells of the Judicial Police. In Guayaquil, the delegation visited the Provisional Detention Centre, the cells of the Judicial Police and of the Anti-Drug Department, and the cells where police agents under criminal investigation are being held, as well as the Municipal Police Station. In Cuenca, the Group visited the Provisional Detention Centre and the Detention Centre for Migrants. In all these facilities the Working Group held private interviews with some 200 detainees.
This visit has allowed the Working Group to learn about the situation in Ecuador with regard to two important aspects of its mandate: detention in the context of criminal justice and administrative detention.
The Working Group’s mandate is confined to the legal process involved in persons being deprived of their liberty and being maintained in detention, and to the legal guarantees they enjoy. These have to be compared to the international norms Ecuador has ratified, in particular the International Covenant on Civil and Political Rights. The Working Group has no mandate to comment on the conditions of detention, with one important exception: where the conditions of detention are such that they impair a detainee’s ability to effectively defend him or herself, thus significantly affecting her or his right to a fair trial, they become of concern to the Working Group’s mandate.
First of all, we would like to clarify the meaning of the term “arbitrary detention” in the Working Group’s jurisprudence. Because not every form of deprivation of liberty is arbitrary, the Working Group has developed three categories of situations in which deprivation of liberty amounts to arbitrary detention.
-The first category refers to persons detained without any basis in law, for example persons that continue to be detained after having served the totality of the sentence imposed on them.
-The second category relates to persons detained because they have exercised peacefully a right or freedom guaranteed in the Universal Declaration of Human Rights or in the Covenant, such as for instance freedom of expression or religion, the right to peacefully demonstrate, or to organize freely in trade unions and associations.
-The third category applies when the total or partial non-observance of international norms relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an arbitrary character.
In the coming months the members of the delegation will prepare a draft report on the visit, which they will submit to the whole Working Group at its next session, to be held in Geneva in May. Subsequently, the Working Group will present its report to the Commission on Human Rights. Because the presentation of the final report will take time, we consider this meeting essential to make public our first impressions and raise some issues of concern at an initial stage.
We shall start by indicating positive aspects that the delegation of the Working Group has noted.
1. In setting forth our first impressions arising from the visit to Ecuador, we must start by stressing the cooperation we have received from the Government of Ecuador and from the Provincial authorities we have dealt with. With the exception of the Social Rehabilitation Centre (Penitenciaria del Litoral) in Guayaquil, the delegation was able to visit all the detention centers or other facilities that it requested. In these facilities, we have been able to meet with and interview whomever we wanted: pre-trial detainees, convicted persons serving their sentence, representatives of detainees, women, minors, police agents in detention, persons held in maximum security facilities, and even persons in punishment cells. These detainees were chosen at random by the delegation while touring the facilities. The Working Group was able to hold private and confidential interviews with detainees as requested, including two former Presidents Mr. Lucio Gutiérrez (detained in Quito’s Prison no.4) and Mr. Gustavo Noboa (under house arrest in Guayaquil). The Working Group would like to stress the willingness of the authorities to assist the delegation and facilitate its work. The Working Group reiterates its gratitude for their transparency and cooperation. We also wish to thank the civil society representatives we met for their generous assistance.
2. Taking into account the historical legacy and the numerous challenges with which the State has been confronted to when dealing with human rights issues, the Working Group considers that the Government has made efforts to comply with international standards and ensure the protection of human rights in the criminal justice system. In this context, the Working Group has been made aware of the Constitutional and legal changes introduced since 1998 in order to incorporate in the Constitution the human rights standards enshrined in the international treaties Ecuador has ratified. Thus, the Ecuadorian Constitution contains various human rights protection standards that go well beyond its legal obligations and guarantee respect of these rights and freedoms. As the Constitution is the highest law of the land, it prevails over ordinary laws.
3. The Working Group would like to commend the recent efforts undertaken by the Government of Ecuador to resolve the crisis caused last year by the dissolution of the Supreme Court, the Constitutional Tribunal and the Electoral Tribunal, which then led to a change of President and Government. The re-instatement of the Supreme Court, by a transparent and competitive procedure which involved the participation of different sectors of civil society and law professionals, as well as the assistance, among others, of the United Nations Commission on Human Rights, has allowed the judicial institutions to start functioning again, after a vacuum of nearly nine months. The Working Group appreciates all these efforts to overcome the difficulties of this transitional period and would like to wish the newly formed Supreme Court all the best. The Working Group is also aware that the process to appoint a new Constitutional Tribunal will be finalized shortly, and that a similar process is under way for the Electoral Tribunal and the appointment of the members of the National Council of the Judiciary.
4. The Working Group, in visiting the different detention facilities under the authority of the Department of Rehabilitation and Social Services has noticed that, despite the bad conditions and the very low budget allocated by the State to these facilities, the treatment given to the detainees is human. The facilities are managed with a degree of flexibility that has allowed some positive aspects to be implemented including numerous and frequent family visits, allowing the bringing of food and other necessities to detainees, flexibility in the organization of daily activities and even the organization of inmates’ committees. These latter handed the Working Group numerous documents and petitions.
5. The Working Group has noted with appreciation the application of the recent Code on Children and Adolescents, which was adopted to comply with the standards of the International Convention on the Rights of Child ratified by Ecuador. A separate juvenile justice system has been created for minors, and the detention of minors in police cells or adult detention facilities has been expressly prohibited. The Working Group, when visiting the “Virgilio Guerrero” facility for minors, was able to appreciate the conditions for juvenile delinquents and the activities offered to them in order to facilitate their reintegration into society.
The Working Group has also noted the following shortcomings in matters of concern to it. In addressing them, the Working Group takes into account the fact that Ecuador was without a Supreme Court and other judicial institutions for more than nine months, as well as the constraints and difficulties the country and the Government are facing. The challenges are numerous and require exceptional efforts, political goodwill and resources.
Issues of concern
1. The gap between the international standards set forth in the Constitution and the law and practice observed
The Working Group has noted a considerable gap between, on the one hand, the Constitution, which contains all necessary guarantees for the protection of human rights and against arbitrary detention, and on the other hand provisions in the Criminal Procedure Code, the Penal Code and some regulations adopted by central or provincial authorities which not only go against principles set forth in international norms and in the Constitution, which, we must again stress, prevails over any other law in cases of conflict of laws, but also undermine the guarantees and protection offered.
Two measures that have been adopted by Congress after the promulgation of the Constitution are of particular concern to the Working Group since they create numerous cases of potentially arbitrary detentions.
Article 173-A of the Criminal Procedure Code imposes an obligation on judges to order detention “en firme” for persons awaiting trial. As this detention order does not carry any time limit and cannot be challenged the detainee must remain in detention until conviction and sentencing.
The Working Group would like to stress that detention awaiting trial is a preventive measure and if it goes beyond the limits established in the Constitution it is unconstitutional. It also violates the discretionary power of the judge to assess each case on its merits.
In practice, detention “en firme” has created a situation in which thousands of persons remain detained for long periods, often years, while awaiting trial, thus violating their right to be tried within a reasonable time.
The abolition of sentence reduction is another of the measures adopted by Congress which, according to us, infringe principles enshrined in the Constitution and which, in the context of a policy of harsh repression of criminality, has led to a large number of persons serving long sentences for minor offenses.
The Working Group has also noted a gap between the provisions contained in the Penal Code and the Criminal Procedure Code and the practice observed. Although it is stipulated that a person arrested has to be brought before a judge within 24 hours of his initial detention, this is rarely the case. Also, while the law stipulates that pregnant women and persons over 65 should never spend time in detention while awaiting trial and sentence, we have seen many pregnant women and older persons in detention awaiting trial. Despite the fact that minority, when claimed, should be presumed, and that minors therefore, when arrested, should be placed in the custody of the Health and Social Services, the delegation found some minors held with adults in the Judicial Police cells and in Provisional Detention Centres awaiting documents confirming their age.
All these gaps and contradictions between, on the one hand, the generous and progressive principles set forth in the Constitution together with the more restrictive measures adopted by Congress, some clearly incompatible with the Constitution and the International Covenants and Treaties ratified by Ecuador, and on the other hand, daily practice, seriously undermine respect for human rights and protection against arbitrary arrest and detention.
2. The lack of implementation of the accusatorial system affects the right to defense of the most vulnerable
The Working Group has been made aware that a new criminal procedure system was adopted in 2001 with the promulgation of the new Criminal Procedure Code changing from an inquisitorial system to an accusatorial system. However, since then Congress has introduced several modifications that undermine the positive aspects of the new process.
It is worth stressing that an accusatorial system requires the necessary mechanisms and resources to function adequately. Most important is to ensure the effectiveness of rights of defendants at all the stages of the process. This requires a strong and independent system to guarantee adequate defense for all, especially for those who cannot afford to pay a lawyer.
So far, Ecuador has not implemented an effective system of public defenders or free ex-oficio defense lawyers. The four or five public defense lawyers operating in the largest provinces (with only 32 for the whole country) cannot be considered a system of public defense. The Working Group noted that during the initial stages of arrest and investigation, defendants who cannot afford a lawyer -which are the vast majority- are defenseless. This constitutes not only a violation of the right to defense but also of the principle of equality of arms between the prosecution and the defense.
The Working Group has noted that in practice, persons under arrest are rarely brought before a judge within the 24 hours and can be held for months in the police station, access to a lawyer being rare and difficult. Another problem is the delegation of powers by the Prosecutors to the Judicial Police without any control or oversight. As a result the entire investigation is in the hands of the Judicial Police who also have exclusive control of the forensic and other institutions involved in the production of evidence.
This very worrying situation is a consequence of the limitation of the right to defense and also of the lack of will on the part of the judicial authorities to exercise control over the police and Prosecutors. The Working Group learned that Prosecutors automatically endorse statements by the Judicial Police and that judges rarely challenge them in further proceedings. The procedure nominating judges is also to blame as it leads not only to the judiciary being subject to influence by political parties, and other external influences, but also to corruption.
The Working Group would like to stress that in a properly-functioning accusatorial system judges must be independent and strong enough to ensure equality of arms and to guarantee the effectiveness of the rights of detainees and protect them from any violation or abuse by the authority under which they are held.
3. The ineffectiveness of remedies against arbitrary detention
The Working Group has been made aware of a number of procedural remedies to challenge, the lawfulness of detention. There is the remedy of habeas corpus, which allows the legality of detention to be challenged before the Mayor of the municipality in which this person is detained. The remedy of amparo allows a detainee to challenge a court detention order before the President of the Superior Court.
The Working Group has noted that, with very few exceptions, these challenges to the lawfulness of detention are seldom granted, either by the Mayor or the competent judge, and that most detainees, having seen no lawyer, not being aware of their rights and not being told of the existence of these procedures, rarely use them.
The Working Group has also noted that members of the police and military are not subject to the jurisdiction of ordinary courts in acts performed in the course of their duties. Members of the police and military, when acting in their official capacity, have been granted a special privilege that removes them from the jurisdiction of ordinary courts. They are subject to the jurisdiction of special tribunals which are composed of and presided by members of their own forces, which goes against the principle of jurisdictional unity established in the Constitution. In cases of abuse, arbitrary detention, ill-treatment or even torture by members of the police, lack of external controls prevents victims lodging complaints with these bodies, and perpetrators are very rarely held accountable for their actions.
4. Corruption, abuse and harsh treatment
The Working Group has noted that the public’s perception of justice and the police is not positive. It is believed that there is widespread corruption in the whole judicial system, and that the justice system is manipulated by politicians and powerful interests.
Many persons interviewed stated that the crack down on crime affects only the poorest while the big criminals are protected. In the fight against drug-trafficking, the situation is even worse. The Working Group has been informed that for possession of very small quantities of drugs persons are sentenced to 8, 12 and even 16 years. Some of them claim they are just consumers. In crimes against property, the penalty is so disproportional that the theft of property worth more than four dollars may be punished with up to 8 years of imprisonment.
Ill-treatment and torture by police officials during the custody of arrested persons is not only used in order to obtain forced confessions and self-incriminations but also as a form of punishment. In many cases, we saw persons in police cells who showed signs of ill-treatment or torture. Some claimed to have been beaten and forced to confess to a crime they did not commit. The police, especially the Judicial Police, greatly benefits from this situation and is able to act with impunity. In the same way, the police is not allocated resources to carry out its work properly, has no financial capacity to hold detainees, is unable to correctly maintain records of detainees under its custody, which leads to a lack of control in which arbitrary detention develops.
Finally, the Working Group has been told by the relevant authorities and noted in practice that the budget allocated by the State to judicial and the penitentiary authorities is minimal and undermines its capacity to function properly. This has led to a particularly striking situation affecting detention facilities. Conditions are so harsh as to be beyond the limit of the humane. Detainees are held in unsuitable, overcrowded facilities without any prospect of early release. The situation has worsened since the introduction of more severe penalties and with the abrogation of the sentence reduction system previously in force, including the 2 x 1 (possibility to reduce sentence for good behavior) and pre-liberation. We would remind the authorities that they themselves call these facilities rehabilitation centres, but we are unable to see how, in these conditions any rehabilitation at all is possible.
These are, Ladies and Gentlemen, our first impressions at the conclusion of our visit. We are available to answer any questions you may have. Thank you for your attention.