PRELIMINARY OBSERVATIONS AND RECOMMENDATIONS
Quito, 9 December 2019
I would like to start by thanking the Government of Ecuador for inviting me to visit the country from
29 November - 9 December 2019. During my visit I met with the Vice-President of the country, along with various high ranking representatives from the Government including the Minister of Foreign Affairs; the Minister for Economic and Social Inclusion; the Minister of Interior; the Vice-Minister of Labour; the Vice-Minister of Economic and Social Inclusion; the Secretary for Human Rights; the President of the National Assembly, and Parliamentary Committees including: the Justice Committee on Democratic reform; the Committee on Labour; the Committee on Health; and the Committee on Children and Adolescents; the President of the National Electoral Council; Vice-President of the Constitutional Court and its plenary; Vice-President of the Judicial Council and its plenary; the State Prosecutor General; and representatives of statutory human rights agencies including the Ombudsman, and the National Gender Equality Board, along with representatives from international organizations and civil society. In addition, I met with the Governor of Azuay, and relevant stakeholders in Cuenca, Huaquillas, Machala and Tulcan.
I also visited Chillogallo correctional facility in Quito, along with shelters for women fleeing violence in various locations throughout the country, including the Fundación Maria Amor en Cuenca.
I am very grateful to the Office of the United Nations Resident Coordinator, as well as UN Women, UNICEF, UNHCR, UNFPA, the UN Development Programme, and other UN agencies for their support both before and during the visit.
Today I will present the preliminary findings from my visit, whereas my final report will be presented at the Human Rights Council, in June 2020. The purpose of my visit was to address and analyze violence against women, its causes and consequences in the country, in light of the well-established international human rights framework, and to engage in a constructive dialogue with the authorities in order to provide recommendations on how to better implement the international obligations and adopt the measures needed to prevent and eradicate all forms of gender-based violence against women and girls.
The final report will provide a more in-depth analysis of the manifestations, causes and consequences of violence against women and girls, and will include action-orientated recommendations in line with relevant UN human rights instruments and standards.
I would like to offer my sincere gratitude to everyone who took the time to meet with me as their contributions have been invaluable to the success of my visit. I am especially grateful to all those women and girls who placed their trust and hope in me by sharing their personal, and often traumatic, experiences of violence and gender based discrimination.
I believe that the information I have gathered has allowed me to provide an initial assessment on the scope of violence against women and girls in Ecuador, as well as some of the systematic problems they face when it comes to gender based violence against women and their right to live a life free from violence, and to enjoy substantive gender equality in line with the country's Constitution, the Comprehensive General Law to Prevent and Eradicate Violence against Women of 2018, and relevant international instruments to which Ecuador is party.
The international human rights framework that I have used as the basis for my analysis includes the UN Convention on the Elimination of all Forms of Discrimination against Women (CEDAW), which Ecuador ratified in 1981, the International Declaration on the Elimination of Violence against Women (DEVAW), and other relevant regional instruments, such as the Belen do Para Convention (ratified in 1995). My analysis is also built on the CEDAW General recommendation No. 19 on violence against women and General Recommendation No. 35 on gender-based violence against women, the jurisprudence of the CEDAW Committee and on the case-law of the Inter-American Court of Human Rights.
This country visit is happening at a particularly challenging time when the National Assembly rejected proposed revisions to the restrictive definition of abortion outlined in the Comprehensive Penal Code (2014), while the Constitutional Courtis currently considering its conformity with the Constitution of Ecuador. I hope that my findings, which have been based on international law standards, will contribute to this important national debate.
The legal framework on violence against women
Let me begin by congratulating Ecuador on achieving 39 % political participation of women in the Parliament, along with the recent adoption of the Law on democratic Parity. The Constitution of 2008 contains many progressive provisions that guarantee non-discrimination and equality as a fundamental right and includes the right to a life free from violence (art. 66). It also provides for direct application of international law, including the various human rights instruments ratified by Ecuador.
The vast majority of stakeholders that I met with, recognized that violence against women is an alarmingly common occurrence that is deeply rooted in society and that continues to have a significant negative impact on women, children and the wider community in Ecuador.
Recent data compiled by the National Institute on Statistic demonstrates that that 7 out of 10 women have been victim of some form of violence, with 60% having experienced psychological violence, and between 30% and 40% having suffered from physical violence.
The collection of such data on violence against women, represents a positive step to measure and respond to violence against women and girls as a matter of public concern. Recently significant normative progress has been achieved by the enactment of the 2018 Comprehensive General Law to Prevent and Eradicate Violence against Women that establishes a progressive legal framework for the prevention and elimination of violence against women and girls in the country. It also provides comprehensive measures on prevention, attention, protection and reparation (art. 1). It recalls as its basis international women's human rights instrument adopted by Ecuador, including; the Convention on the Elimination of Discrimination against Women, and its Committee's General Recommendations 19 and 35 on violence against women; the Beijing Platform for Action; the Belem do Para Convention; and recommendations from international human rights mechanisms.
However, this progressive norms this Comprehensive General Law to Prevent and Eradicate Violence against Women is not yet fully operational. Article 16 (2) provides for the establishment of a National Observatory on Violence responsible for the preparation of reports, studies and proposals to improve decision making, and ensure the effective implementation of the Law. To date such an Observatory has not been established.
Article 19 (3) provides for the development of a National Action Plan on violence against women, while article 19 (4) envisages the adoption of new Strategy on violence against women.
Article 49 provides for the establishment of Cantonal Protection Boards entrusted to provide different protection measures. While some progress has been made in this regard, they have yet to be established in all cantons. They need to strongly cooperate with the police force is implementing this law and protection measures but police is not receiving sufficient training on gender based violence and particularly in relation to risk assessment in cases of violence against women.
I was informed that as of January 2019 instead of the Ministry of Justice the Sub-Secretary on the Eradication of Gender based violence against women and girls within the Human Rights secretariat, has been designated as the principal coordinating inter-sectorial body for the implementation and monitoring of this law.
The Constitution also provides for the establishment of National Equality Council (art. 156) and designates it as the body responsible for ensuring the full application and fulfilment of the rights enshrined in the Constitution and in international human rights instruments, and confers upon these councils responsibilities in the formulation, mainstreaming, observance, follow-up and evaluation of public policies related to gender.
The budget of the National Council for Gender Equality was reduced and this is also reflecting on its mandate on the elimination of violence against women.
The role of Sub-Secretary of the Eradication of Gender based violence against women and of the National Council for Gender Equality should be bolstered and efforts should be made to ensure strong cooperation between the two bodies in order to ensure co-ordinated implementation of the Comprehensive General Law to Prevent and Eradicate Violence against Women.
The systematic participation of women's organizations in the implementation of the Comprehensive General Law and other decision-making processes concerning the protection of women's rights at the national and local level should also be ensured.
In this respect all efforts should be made to ensure that planned budgetary cuts for 2020 will not affect implementation of the Comprehensive General Law to Prevent and Eradicate Violence against Women, given that this law is not yet fully operational and any budgetary cuts would severely hamper any progress it would make in preventing and eradicating violence against women.
I am particularly concerned about information received that suggests that the budget for 2020 will be reduce by 100 % in relation to the allocation for the implementation of the Inter-sectorial policy for the prevention of pregnancy of girls and adolescents, and by the 84 % for the implementation of the aforementioned law on violence against women.
Given the high levels of overall violence against women and teen pregnancies in the country, this decision, if taken, would contribute to the violation of the human rights of women and girls.
Criminal justice system
On 3 December 2019, I met with some young girls from Ecuador between the ages of 10 to 18 years. After the meeting the girls presented me with a "Manifesto for a life free from violence". Let me briefly mention some of the demands outlined in their Manifesto:
"Girls should not be mothers".
"We refuse to be criminalised for taking decisions related to our bodies. They cannot impose motherhood on us because we have the right to decide whether or not we want to have children and, if so, when, how many and with whom. The criminalisation of abortion affects the most impoverished adolescent girls, and young adult women who are forced to access unsafe abortion, putting our lives, freedom and health at risk."
The girls also requested: "integral sex education both at home and in educational institutions, and called respectful, friendly and specialised sexual and reproductive health services, as well as access to modern accessible and high-quality contraceptive methods to prevent pregnancy"
The demands outlined by the girls are fully in line with international women's human rights instruments, as ratified by Ecuador, including the Committee on the Elimination of Discrimination against women (art 16) and the Belem do Para Convention.
Article 16 (e) of the CEDAW Convention explicitly states that men and women shall have: the same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.
However, unfortunately these standards do not reflect the daily reality faced by these girls, and so many others like them throughout the country.
In Ecuador, the birth rate among girls between 10 and 14 years old increased from 2.5 per 1000 births in 2013 to 8 per 1000 in 2016. This means that approximately 2700 girls under 15 gave birth each year. Systemic sexual violence paired with minimal access to sexual and reproductive health services means that women and girls are frequently forced to carry unwanted pregnancies to term.
Under the criminal code, abortion is legal only when a pregnant woman's life or health is in danger, or when a woman with a mental disability is pregnant from rape. There is a protocol for therapeutic abortion, but it does not provide for a course of action to guarantee access to abortion and, on the contrary, women and girls face multiple barriers in actually accessing abortion services.
International human rights bodies have upheld that forcing a woman to carry to term a pregnancy resulting from rape has severe mental health consequences and constitutes a violation of the right to health-including both physical and mental . This right is protected in several human rights treaties, such as CEDAW's article 12 that states that:"[S]tates Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning" .
The restrictive norms within the criminal justice system and prohibition of therapeutic abortion in cases of pregnancies caused by rape or incest or unviable pregnancies, as well as the overly restrictive interpretations of the right to life and health exemptions, that do not include severe fatal abnormalities and extra uterine pregnancies place young girls, at extreme risk.
During my visit, I also received disturbing information that there are reportedly some 250 women in prison due to sentences related to abortion. .
Such restrictive criminal law provisions are contrary to the recommendations provided by the CEDAW Committee to Ecuador in this regard, and the CEDAW General Recommendation 24 on "women and health", which explains that it is discriminatory for a State party to refuse to provide legal avenues for the performance of certain reproductive health services for women. When possible, legislation criminalizing abortion should be amended, in order to withdraw punitive measures imposed on women who undergo abortion.
While recognizing the steps that have been taken to bring the debate surrounding abortion to the National Assembly, I regret that to date Ecuador has not implemented the CEDAW Committee recommendation to decriminalise abortion, and the proposed amendments to articles 149 and 150 of the Comprehensive Organic Criminal Code (2014) that would have decriminalized abortion in cases of rape, incest and forced artificial insemination were rejected by the National Assembly in September.
As Special Rapporteur on violence against women, I am considering the compatibility with relevant international legal instruments and the implementation of CEDAW recommendations. In this regards I would recommend:
(a) Repeal articles 149 and 150 of the Comprehensive Organic Criminal Code (2014) to ensure that no criminal charges can be brought against women and girls who undergo abortion or against qualified health care professionals and all others who provide and assist in the abortion;
(b) Adopt legislation to provide for expanded grounds to legalise abortion at least in the following cases, and where there is:
(i) Threat to the pregnant woman's physical or mental health
(ii) Rape or incest; and
(iii) Severe foetal impairment,
As an interim measure, a moratorium on the application of criminal laws concerning abortion should be introduced, and all related arrests, investigations and criminal prosecutions ceased, including of women seeking post-abortion care and healthcare professionals.
All possible legal avenues should also be applied in order to re-examine the cases of those women (reportedly 250) who are in prison on charges related to abortion, and provision should be made to review their cases and to release them from prison.
Evidence-based protocols and training for healthcare professionals on providing legal abortions particularly on the grounds of treats to life or physical and mental health should also be developed. While adoption of the new Health code should be expedited and accessibility and affordability of sexual and reproductive health services and products, including on safe and modern contraception should be made available, including oral and emergency, long term or permanent and adopt a protocol to facilitate access at pharmacies, clinics and hospitals.
Women should also be provided with access to high quality abortion and post-abortion care in all public health facilities, and adopt guidance on doctor-patient confidentiality in this area.
Furthermore, age-appropriate, comprehensive and scientifically accurate education on sexual and reproductive health and rights a compulsory curriculum component for adolescents, covering early pregnancy prevention and access to abortion, and monitor its implementation;
The current definition of rape is not in line with international standards and the unacceptable tolerance result in low reporting, and if reported in low prosecution and in impunity for perpetrators. Moreover, force-based definitions of rape often require evidence that the victim failed to fight back. As such, the burden is placed on the woman to prove that she resisted. If unable to do so, the perpetrator would walk free while the victim is left stigmatized. I would therefore urge the legislative authorities in the country to take steps to amend the current definition of rape ensure that it is based on the absence of consent, and that it is in line with international standards, as provided for by the CEDAW Committee's General Recommendation No. 35.
Steps should be taken to amend the
statute of limitation to report rape and to allow for the efficient initiation of criminal proceedings after the
victim has reached the age of majority, as this would represent and important preventive measure.
Art. 141of the Criminal Code (2014) makes specific reference to femicide as a crime. It also provides for the provision of funds for children who have been orphaned as a result of femicide, and I welcome the proposal to expand the coverage of these provisions.
During my visit I met with one mother whose daughter was killed in front of her 4 children, despite having been granted a protection order, and access to a panic button. It is evident that while there are provisions I law to address femicide, lack of coordination between the relevant administering agencies is hampering implementation.
I would like to reiterate the call I had directed to all UN Members States to establish a "femicide watch/observatories" through which member states, including Ecuador, would release on 25th of November every year, on the International Day on the Elimination of Violence Against Women, the number of femicides (by category of intimate partner femicide/family related femicide/others); disaggregated by age and sex of the perpetrator; as well as the relationship between that perpetrator and the victim or victims. Information about the prosecution and punishment of perpetrators should also be collected and published. On the basis of such information, each case of femicide should be carefully analyzed to identify any failure of protection in view of improving and developing further preventive measures.
I therefore recommend that Ecuador establishes its proposed Observatory on violence against women as provided for under the Comprehensive Law on the elimination fo violence against women, in order to expedite to femicide prevention observatory and to collect data on all gender related killings and analyze all cases of such killings to determine shortcomings.
Provision of shelters and access to essential services, and the provision of immediate protection measures
Service providers and other interlocutors that I met with, all pointed to the shortage of adequate shelters across the country offering a safe house for women and girls who have been victims of violence, particularly within indigenous communities, and in rural and remote areas.
The Comprehensive General Law to Prevent and Eradicate Violence against Women of prescribes protection orders in cases of domestic violence, however a lack of awareness among women of this right, along with a lack coordination between police and Cantonal boards that are not available 24/7 has hindered their implementation.
Immediate and long term protection orders as legal instruments should be established in criminal and administrative laws and competent authorities should be granted the power to issue and enforce effective protection orders for all forms of violence against women and domestic violence. These orders must be easily available and enforced to protect the well-being and safety of those under their protection, including children.
In this regard I draw the Government's attention to the recommendations contained in my thematic report on human rights based approach to integrated service for victims of violence against women with a focus on shelters and protection orders.
The situation of women who encounter multiple and intersecting forms of discrimination and violence
I fully support the recommendations made by the UN Special Rapporteur on the rights of indigenous peoples, Victoria Tauli-Corpuz following her visit to Ecuador in 2018 along with those made by the UN Committee on Economic, Social and Cultural Rights in 2019 and call for their full implementation.
During my visit I met with indigenous women who highlighted the various forms of gender based violence and discrimination that they are subjected to as one of the most marginalized groups in society, they face intersecting and multiple forms of discrimination, on the grounds of gender and ethnicity, often owing to their low socio-economic status, and social exclusion, particularly in remote areas here language barriers also hinder integration.
Those forms of discrimination and exclusion create extremely difficult social conditions and manifest themselves in an alarmingly high prevalence of violence against indigenous women, who continue to experience higher rates of domestic and family violence and more severe forms of such violence as compared with other women, particularly those who are defending their territories from multi-national mining, and other extractive companies. For those women who have experience violence at the hands of foreign workers, or within their own homes and communities, no culturally sensitive shelters exit that provide for their protection.
I would encourage the Government to adopt a specific National Action Plan on violence against indigenous women that would include appropriate temporary special measures to accelerate their full participation at decision making levels. This would be in line with the commitments made under Article 22 and 23 of the UN Declaration on the Rights of indigenous peoples.
Women in detention
During the visit I conducted to the Chillogallo correctional facility in Quito, that caters specifically for mothers with children I was concerned about the overcrowding and the lack of a separate meeting area for receiving visitors, and well as lack of adequate medical care for children . While there are provisions for a children and mother program, as well as a day care centre for the children, the lack of a pediatrician within the facility is of considerable concern, as well as the lack of skill based training opportunities. In the context of women' incarceration, I would also like to refer to the United Nations Standard Minimum Rules for the Treatment of Prisoners and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules) which provides guidance for women in prison.
Migrant and refugee women and girls
While commending the efforts of the Government of Ecuador to guarantee access to the territory for persons in need of international protection, in the context of the 1.3 Million Venezuelans migrants and refugees who have arrived in Ecuador since 2015 and the enactment of Human Mobility Law in February 2017, I am concerned about the lack of a sexual and gender-based violence (SGBV) strategy, and activities for the identification and prevention of, and response to, situations of SGBV affecting migrants and refugees, including measures aimed at facilitating the access of women to migration alternatives and/or simplified regularization procedures, particularly in the context of its response to migrants and refugees from Venezuela.
Finally, I would like to end on a positive note, through my exchanges with various interlocutors, at the State and non-State level I observed that the Ecuadorian society is extremely concerned about the levels of violence in the country. If the Government gives priority to designing and implementing effective policies on eradicating violence against women, and commits to allocating the necessary budget, I am convinced that Ecuador could reverse the current situation and make impressive strides in the near future in ensuring a life free form violence for all women and girls in the country.
I will finish by reiterating my commitment to continue the dialogue initiated during this visit. I look forward to working with the Government, and other relevant stakeholders, in a spirit of cooperation on the implementation of my recommendations.