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CHAPTER IV- CONTINUATION ECUADOR
Introduction
118. The Inter-American Commission on Human Rights (hereinafter “the Commission”), acting within its sphere of competence, established by the American Convention on Human rights (hereinafter “the Convention” or “the American Convention”), and other applicable instruments, has observed the evolution of the human rights situation in Ecuador with interest and concern. In 1997, the Commission issued its first report on the human rights situation of Ecuador, covering the period between the taking of the oath of office by President Durán Ballén, in mid-1992, until September 1996. In its 1998 Annual Report, the Commission included a follow-up report regarding the Ecuadorian human rights situation, with the purpose of assessing compliance with recommendations issued earlier. In its 1999 Annual Report, the Commission analyzed the human rights situation in Ecuador in its Chapter IV. As it concluded its 122nd and 123rd regular sessions, the Commission referred to the persistent and increasing institutional deterioration experienced in Ecuador, which hinders the full guarantee of fundamental freedoms for the country’s inhabitants.
119. The analysis of the Ecuadorian situation in the current section of the Annual Report is conducted according to the criteria established beforehand by the Commission for the inclusion of countries in the present chapter. On the one hand, there is the criterion according to which States included in the report shall be those in which “the free exercise of rights contained in the American Convention or Declaration have been effectively suspended, in whole or part, by virtue of the imposition of exceptional measures, such as a state of emergency, suspension of guarantees, state of siege, prompt exceptional security measures, and the like. On the other hand, there is the criterion that includes “…structural or temporary situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration. This criterion includes, for example: (…) serious institutional crises.” Finally, the Commission considered also the criterion that refers to “to the States that are found to be in a process of transition of any of the … above mentioned situations.”
120. This report shall focus on the situation lived by Ecuador at the end of 2004 and during 2005. Under the light of the American Convention the events that have occurred over the past year in Ecuador configure a grave institutional crisis, justifying the Commission’s concern. Indeed, during the period under study, the factual circumstances referred to the Criterion developed by the Commission for the preparation of country reports, and cited in the above paragraph, existed in this country.
121. It its necessary to emphasize that, the assumption of a new Government on April 20, 2005, as well as the initiatives adopted since its arrival to power, constitute a positive sign for the reestablishment of some of the institutions; whose destabilization is questioned in this report and that turn out to be fundamental for the protection of the human rights, such as the well functioning of a judicial power, independent, and impartial. In this framework, the process of appointment of Supreme Court judges, assuring a transparent selection with international verification constitutes an important step, above all because it has been the result of an internal democratic dialogue. Continuing this line, the Commission received with consent the information coming from the Government stating that the Constitutional Court will be soon appointed. At the same time, the Commission has taken note of the expressions of the Government of the Dr. Alfredo Palacio that indicate its determination to increase its efforts around executing a more consistent and articulated social policy, for the benefit of the majorities. For this purpose, the State has indicated the development of activities such as the investment of resources in health, education, science, and technology, and the financing of productive projects; as well as the insertion of those sectors of the population recognized as vulnerable to the political and social sphere. The Commission congratulates the Government for these decisions since the difficult socio-economic situation implies a serious obstacle to the effective enjoyment of the cultural, social, and economic rights in Ecuador. On the other hand, the Commission stands out the eagerness and interest of the new Government to promote the participation of the population and to consolidate democracy, aspects especially worth when in the month of October of the year 2006, the country will live an electoral process directed to elect a President and vice President of the Republic and members of the National Congress.
122. The year 2005 has seen weak rule of law and therefore also fragile protection of human rights in Ecuador. The security of the democratic system has been affected by political instability which, although not a recent phenomenon in the country’s history, has nevertheless displayed the deficiencies of a governmental structure incapable of providing satisfactory public policy responses to the interests of the majority of the population; or which, at times, has not been able to develop effective programs due to short terms of office. This erosion is also reflected in the lack of capability on the part of the political system to provide response to social problems, which contributes to perpetuate human rights structural weaknesses.
123. Another factor that has played a key role in the deepening of this crisis has been the lack of enduring political representation for marginalized sectors such as the indigenous part of society. In this context, it is worth noting the growing political mobilization generated by this part of the population and the important role of its leaders in their social movements. In this regard, it should be said that the first stage of Lucio Gutiérrez’s Administration, despite its initial disposition, was not able to provide substantive responses to meet the interests and aspirations of the indigenous people. This became evident later, when President Gutiérrez left power in April 2005, in an exit at least partly provoked by strong citizen pressure, since he had lost the vigorous popular support which had elected him in November 2002.[138] Thus, the mere formal inclusion of the indigenous peoples does not suffice for the institutional strengthening of the country and, as has been seen, this popular discontent generates a situation of social unrest which can lead to the removal of an administration.
124. The Inter-American Court of Human Rights has recently indicated that:
125. From this standpoint, the Commission’s experience proves that institutional crises have consequences for the exercise and enjoyment of rights. At the very least they cause anxiety and fragility which stand in the way of the harmonious functioning of institutions, including those directly entrusted with guaranteeing citizens the exercise of their rights. Particularly, as it is the case of the Ecuador, when such suspension affects institutions that are, according to internal regulations of the country, the entrances of the population to specific resources that permit the protection and the individual recognition of their rights.
126. In this respect, it is worth recalling the position held by the Commission regarding Ecuador in its 1999 Annual Report.
127. As will be explained in the following sections of this report, the Commission considers that the actions of the Administration led by former President Lucio Gutiérrez and the temporary parliamentary majority he enjoyed towards the end of 2004 gave rise to the institutional crisis which led to their exit in April 2005; of particular relevance were the actions related to the removal of the members of the Supreme Court of Justice and the Constitutional Court. The full operation of the legitimately constituted branches of government, without any impairment of their independence, and in balance with the other branches, is an indispensable requirement for a democratic system, as adopted by the OAS Charter (Article 3) and which has been expressly recognized by the Inter-American Democratic Charter.
128. However, the Commission reiterates that the temporary crisis lived by Ecuador during the last year reflects the existence of far deeper structural problems that cannot be resolved due to the serious political instability affecting the country and the lack of capacity on the part of its ruling classes to forge wide and durable consensual agreements which would allow the identification and execution of inclusive public policies, which are necessary for the respect and effective enjoyment of all human rights, particularly those related with the egalitarian exercise of the right to the political participation (Article 23 of the Convention), access to the impartial, independent justice and access to an effective resource (Article 25 of the Convention), freedom of speech, association and meeting (Articles 13 and 15 of the Convention), equal protection before the law (Article 24 of the Convention), and of the cultural, social, and economic rights, recognized in the Protocol of San Salvador that Ecuador ratified in 1993.
129. The Commission cannot fail to point out that the Ecuadorian population is highly skeptical regarding democratic institutions, the country’s political leadership and state agencies’ capability of protecting human rights. This contributes to the political instability that has characterized the country over the last decade, making it more profound. Some examples prove this. Barely 24% of the population approves of the way in which the President leads the country,[140] and only 22% believes that the persons leading the nation are honest.[141] There is also a lack of civic culture in Ecuador. Thus, despite the fact that in 2000 there was a process for the writing of a new constitution and that, at this time, there are discussions over the need for constitutional reform, only 24% of the population has knowledge of the Constitution.[142] These surveys also demonstrate the precarious Ecuadorian situation, given that the inhabitants of this country are among those that least make demands for their rights, for compliance with the law and for the legitimacy of political parties and of Congress.[143]
130. Political crises are also generated and deepened by the high degree of skepticism on the part of Ecuadorian society regarding the operation of state institutions. Thus, the Ecuadorian population is the one in Latin America that least believes that the State manages to enforce the law fairly. [144] Only 30% believe that the Ecuadorian judicial system, although not prompt, is capable of providing justice, again the lowest index of trust in Latin America.[145] Sixty-seven percent of the population believes that there can be democracy without political parties and their national Congress.[146] Only 14% is satisfied with the operation of democracy in the country.[147]
131. This lack of trust in public institutions is worsened by a strong perception of corruption. Ecuadorians believe that 82 out of every 100 public servants are corrupt[148] (the highest in Latin America) and only 21% of them believe that progress has been made in the fight against corruption. [149] Ecuador is ranked 117th of 158 countries in the perception of corruption index.[150] Corruption is an important consideration in the analysis of democratic institutions; as the Member States of the OAS have acknowledged, “corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples,” and fighting corruption “strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a society's moral fiber.” [151]
132. The Commission has understood that the phenomenon of corruption is not only related to the legitimacy of public institutions, society, the integral development of peoples, and all other more general aspects mentioned supra, but also has a specific impact on the effective enjoyment of human rights in society in general:
133. In accordance with the aforementioned considerations, existing corruption in Ecuador seriously affects democratic institutions and is an important factor to consider when analyzing the human rights situation of the country.
134. Another factor is the socio-economic context of the country. Since approximately seven years have transpired since the Commission, in its Follow-Up Report, performed an analysis of this subject, it is necessary to observe the current country’s situation.
135. According to the data contained by the human development index of the United Nations Program for Development (UNDP), Ecuador has fallen from the 73rd to the 78th place in 2005. This descent is noteworthy when compared with the 64th place held in 1996.[153] Regarding life expectancy at birth, there has been an increase from 69.5 in 1998 to 74.3 in 2005.[154] With respect to per capita income, there has been a considerable decrease from 4,602 in 1997 to 3,641 this year. Ecuador’s poverty index is 10.6% and is ranked as 22nd of 103 developing countries, for which this index has been made. Regarding foreign debt, the Central Bank stated at the end of October that, for this year, it should be estimated at 10.395 billion dollars.[155]
136. These figures and percentages are the image of a country that has tried over the last few years to overcome its socio-economic deficiencies. However, the profound crisis, reflected, inter alia, by the phenomenon of massive emigration, as well as by several social protests, has made it clear that Ecuador has not yet overcome the high degrees of marginalization of certain sectors of the population. Among these are sectors of indigenous people, Afro-Ecuadorians, and women, which constitute groups that do not effectively count on sufficient representation in decision-making circles. The impact of this problématique concerns the Commission, especially if it is borne in mind that the lack of adequate participation may result in a weakening of the systems of protection of the rights, needs, and interests of these human groups. In this sense, the Commission would like to recognize again the information presented by the Government of the President Alfredo Palacio about their political will to work to surpass these problems that were not generated by the current administration but are structural situations that afflict Ecuador.
A. Background
137. The origins of the institutional problem currently afflicting Ecuador lie, in part, in events that began at the end of 2004 and whose effects were felt throughout this year. In order to understand the current context of the crisis situation lived by the country, especially with respect to the weakening of the rule of law, in what follows the Commission will offer a brief chronological description of relevant events. The CIDH reiterates again that analyzes this situation as long as, it has relation with human rights, particularly the exercise of the political rights, freedom of demonstration of political opinions, right of meeting and association and especially the right to have a legitimate Supreme Court that is efficient, stable, impartial, and independent.
138. At the beginning of November 2004, legislative deputies representing the Partido Social Cristiano [Social Christian Party], Izquierda Democrática [Democratic Left] and Pachacutik, were engaged preparing an impeachment trial, before the National Congress, of President Lucio Gutiérrez, who was accused of embezzlement of public funds.[156] However, able to reconstitute a new majority in Congress, Gutiérrez blocked the impeachment and started an irregular process of restructuring the judiciary, i.e., the Constitutional Court, Supreme Electoral Tribunal, and Supreme Court of Justice.[157]
139. On November 25, 2004, the National Congress dismissed the judges of the Constitutional Court and the Supreme Electoral Tribunal,[158] deeming that the judges and main alternates of both courts had been illegally appointed. In that same session, the National Congress appointed judges for both the Constitutional Court and Supreme Electoral Tribunal.
140. The removed Constitutional Court judges were subjected to an impeachment trial on December 1, 2004. In the trial, the National Congress acquitted the judges. In other words, first there was a dismissal, then an impeachment, and, finally, an acquittal.
141. Subsequently, the President of the Republic called a special session of the National Congress to discuss, inter alia, the constitutional situation of the Supreme Court of Justice.[159] In this session, held on December 8, the Ecuadorian Congress decided, by Resolution 25-181,[160] to dismiss the sitting judges of the Supreme Court of Justice as well as their alternates. According to the Congressional resolution, the justices had had to resign in January 2003, pursuant to the 25th temporary provision of the Constitution; therefore the Congress appointed other jurists in their place,[161] expressly stating that their appointments would not be subject to term limits, and that they could only be dismissed for the causes determined by the Constitution of the Republic and the law. In addition, on this occasion the Congress charged the new justices with the task of restructuring the Consejo Nacional de la Judicatura [National Council for the Judiciary]. On the next day, the judges who had been removed vacated their offices in the Supreme Court in the midst of great social unrest, as the police surrounded the building while 200 persons protested the dismissals.[162]
142. Thus, during the last two months of 2004, the judicial system of Ecuador, headed by the Constitutional Court, the Supreme Electoral Tribunal, and the Supreme Court of Justice, was almost completely removed, without following formal constitutional requirements. Critics have mainly focused their observations on the issue of the legitimacy of the legislative branch to make reforms of this scope and have accused the Administration of disrespecting the State’s Constitution.
143. Initially, the National Congress invoked its interpretative faculties, authorized by Article 284 of the Constitution, which provides:
Subsequently, and with a quorum of one hundred congressmen meeting in a special session, they went on to analyze temporary provision 25 of the State’s Constitution:
The dismissal of the justices of the Supreme Court occurred by a vote of 52 of the 100 members of Congress present.[163]
144. There has been ample debate on the proper interpretation of the authority of the Congress to effect changes of this magnitude, especially in regards to the applicability of article 202[164] of the Constitution to the justices of the Supreme Court elected before August 10, 1998.
145. In this respect, the Commission considers it necessary to recall that one of the improvements celebrated with special satisfaction in the 1998 Follow-Up Report was the initiative to depoliticize and to modernize the Supreme Court of Justice. This was stated in the following terms:
For its part, the IACHR notes that, in taking decisions of this scope, it must always watch for compliance with procedural guarantees provided for by the State’s Constitution.
146. Once the new Supreme Court of Justice took office, institutional stability encountered new stumbling blocks, such as the resignation of its president, Dr. Ramón Rodríguez Noboa on January 12 of this year.[166]
147. In addition, on April 1, the Supreme Court quashed several criminal trials against fugitives from Ecuadorian justice. In particular, it dismissed pending cases against former presidents Abdalá Bucaram and Gustavo Noboa, and former Vice-president Alberto Dahik.[167] Former President Abdalá Bucaram Ortiz returned to the country the next day, and most observers understood that this had been the chief objective in the removal of the Supreme Court justices. This event became the principal cause of ensuing violence and radicalization of citizen protest and political opposition, concentrated in the capital, Quito.[168] From that moment onwards, multitudinous marches, and their repression, intensified.
148. Social unrest and popular cries of opposition against the measures taken by the government progressively increased their magnitude. Because of this, on April 15, President Lucio Gutiérrez issued Executive Decree No. 2752, declaring a State of Emergency in the Metropolitan District of Quito, limiting established civil rights and using the Public Security Forces through the Joint Command of the Armed Forces, to control and maintain the established order. The Executive Branch, ignoring constitutional procedure, also dismissed the members of the Supreme Court elected on December 8, without restoring the justices previously dismissed nor replacing them; from that moment on, the country was left without a Supreme Court.
149. Strong social opposition to the emergency measures issued by the Administration forced the president to end the State of Emergency by Executive Decree No. 2754 of April 16 of this year.
150. Demonstrations continued, and the main streets of Quito were cordoned off by the police. Tear and vomiting gas were used against participants. The result of this repression was two dead and more than 360 persons receiving care for asphyxia, blows, trauma and respiratory problems.[169] In this regard, the Commission received reports on excessive use of force against citizens.
151. For its part, on April 17, 2005, with the vote of 89 of its members, the National Congress dissolved the Supreme Court of Justice,[170] annulling the December 8, 2004 resolution, in this way confirming the Decree of Emergency issued by the Executive Branch on April 15. The Congress did not replace the dismissed judges, either.
152. In this context, the IACHR expressed that it was “deeply concerned over the situation in Ecuador, where in the past few days events have occurred such as street protests, the declaration and suspension of a state of emergency, and the dissolution of the Supreme Court of Justice.” [171] The Commission also recalled that the State was duty-bound to maintain public order. The Acting Secretary General of the OAS, Ambassador Luigi Einaudi, in turn, called for the maintenance of democratic stability in Ecuador and emphasized the importance of the principles of separation and balance of powers of the State.[172]
153. On the same April 20, the National Congress removed Dr. Quintana, who then was the president of the Congress, because of his refusal to include in the day’s order of business the discussion of situation being lived by Ecuadorian society at that time.[173] The presidency of the Congress was then assumed by the Social Christian Deputy Cynthia Viteri. Under her leadership the National Congress declared that Colonel Lucio Gutiérrez Borbúa had incurred in a breach of his duty as President of the Republic, in view of the fact that his actions were against the Constitution and the law, as provided for by subsection 6 of article 167 of the Constitution.[174] This gave way to the procedures for presidential succession, and Mr. Alfredo Palacio, Vice-president at the time, assumed the duties of head of the government.
154. Thus, Lucio Gutiérrez became the third president removed in the last eight years. In view of the new appointment, the Joint Command of the Armed Forces withdrew its support for Lucio Gutiérrez, which allowed the repression against the protesting demonstrators to cease.[175]
155. The events described up to this point, especially those related to interference with the functions of the judiciary, have been the object of deep international concern and criticism on the part of agencies and institutions whose mandate includes monitoring the protection of democratic institutions, and their continuity, as well as the respect for human rights.
156. In this regard, in its April 22, 2005 session, the Permanent Council of the Organization of American States, considering the seriousness of these events, declared its support for the Republic of Ecuador, encouraging
On this occasion, in view of the invitation made by the Permanent Mission of Ecuador, and, pursuant to article 18 of the Inter-American Democratic Charter, the OAS undertook the commitment to send a special mission to provide assistance for democratic consolidation. The Acting Secretary General, Ambassador Luigi R. Einaudi, was the head of this mission, which visited Ecuador from April 26 to April 30 with the purpose of assessing the institutional crisis unleashed after Gutiérrez’s ouster. In its Report to the Permanent Council,[177] the Mission found three important areas of agreement regarding developments in Ecuador:
Regarding concerns for the immediate future, the Mission found the need for:
Secretary General José Miguel Inzulza has stated that the organization is willing to support “initiatives that reinforce the foundations of the democratic system” of Ecuador.[178] This he reiterated during his visit to Ecuador, at the end of July of this year, expressing his optimism regarding the process of concertación nacional [national dialogue and negotiation of consensus] carried out by the country, and reaffirmed the OAS’s support to the efforts on the part of Ecuadorians to reach agreements on constitutional reform.[179]
157. The rise to the presidency of Alfredo Palacios signaled the beginning, at least in a formal sense, of a new stage for Ecuador. Among the most relevant events, the National Congress has made different decisions by which it removed some deputies accused of “having sold their vote,” appointed a new president and introduced several legislative bills to deal with the Judiciary Branch’s situation, both in the short term (appointment of temporary judges to the Supreme Court) and regarding a new organic law of the judiciary.
158. In this connection, on April 26, 2005, the National Congress annulled the resolution by which it had appointed the members of the Constitutional Court and the Supreme Electoral Tribunal.[180] The new judges of the Supreme Electoral Tribunal were elected on May 4, 2005.[181] The appointment of the judges of the Constitutional Court was possible only when the Supreme Court was filled, since it is this latter Court which must send a short list of three candidates for the former. On that same date, the National Congress passed a bill reforming the Ley Orgánica de la Función Judicial [Organic Law of the Judiciary] and chose the mechanism for selection of the new justices to the Supreme Court, by 69 votes in favor from most of the legislative blocs,[182] in order to make the restructuring of the Supreme Court of Justice possible. This law was initially subjected to criticisms by different sectors of civil society; the president supported this questioning of the law and returned a partial veto of this legal reform to Congress. On May 18, the Congress, in turn, confirmed the initial proposal with few changes.[183]
159. For this purpose, a Comité de Calificación, Designación y Posesión de Magistrados y Conjueces de La Corte Suprema De Justicia [Committee for the Evaluation, Appointment and Installing of Judges and Alternate Judges of the Supreme Court of Justice ] was created to this end. The Committee wrote rules of procedure for the task.[184] This process was closely followed by the international community and its agencies, inter alia, the Organization of American States which, prompted by an invitation of the Government, appointed Sonia Picado, from Costa Rica, and José Antonio Viera Gallo, from Chile, as its special representatives to observe the process of selection of the members of the Supreme Court.[185] The United Nations, the European Union and the Andean Community of Nations were also invited for this purpose. According to the terms of reference, the work of these observers was basically technical and does not involve any interference.
160. Finally, on November 30, 2005, the new judges took office. Thus the Supreme Court of Justice, which had remained inactive for approximately seven months, was reinstated. The new judges were elected based on best marks in the evaluation made by the Selection Committee; thirty-one justices and 21 alternates were appointed, including two women judges and two women alternates. This process was lauded by the international observers of the United Nations, the Organization of American States and the Andean Community of Nations, who acknowledged the efforts of the Ecuadorian people, and supported the institutional strengthening that was initiated with these appointments.[186] The Commission considers that this process sits down the bases for a true historic transformation of the Ecuadorian judicial power and extols the Government for their leadership in the process, and offers the support that the statutory and conventional faculties permit, to accompany this enterprise necessary to assure the due and efficient administration of justice as the best form to guarantee the enjoyment of human rights.
161. According to Articles 27, 33 and 31 of the American Convention, the Commission also observes that on May 25, 2005, the Administration of Alfredo Palacio issued Decree No. 162,[187] declaring a State of Emergency and a security zone in the provinces of Sucumbíos and Orellana, in order to ensure security and provide preventive protection of the physical and technical integrity of the oil facilities and wells. This decree, according to the Government, was prompted by a situation of conflict as well as by acts of vandalism that could have led to chaos, and would have disrupted the otherwise normal activities in both provinces. The opposition to the government holds that these measures were taken in response to peaceful protests that took place between May 22 and 25, and which were motivated by the harmful effects of oil extraction in those areas on the health and physical integrity of the population.
162. Initially this situation could have been resolved with the lifting of the State of Emergency. However, on August 17 of this year, the president, arguing the reemergence of conflict in the area, issued Decree No. 426[188] declaring for the second time a State of Emergency in the provinces of Sucumbíos and Orellana. The demonstrators were calling for the profits obtained from the exports of crude to be reinvested in the same communities from which the oil was extracted.
163. At both times, the Commission received information from representatives of civil society, criticizing the repression exercised by the public security forces against the inhabitants of these provinces, the arrests of demonstrators and municipal authorities, as well as the indiscriminate use of tear gas. The Commission closely monitored developments in this regard and requested information on these allegations to the State. The Government has, only, transmitted a copy of the respective decrees, without providing to the CIDH any information on the drive of the security forces.
164. In addition, in October of this year, President Alfredo Palacio requested the Supreme Electoral Tribunal to call a national poll to ask the citizens whether they agreed or not to the convening of a constituent assembly. The Tribunal denied the request arguing that this would require a constitutional reform, and that the request should be directed to the Congress.[189] In this way, a new tension has been brought about between the legislative and executive branches: the Administration wishes to reform the Constitution through a Constituent Assembly, whereas the Legislative Branch supports the idea of a Constitutional Assembly. Thus, on October 27, 2005 the National Congress of Ecuador requested that the OAS “within the framework of respect for the principles of non-intervention and of the Inter-American Democratic Charter, act immediately to activate the mechanism of collective action in defense of the institutional and democratic order.” [190]
165. During the year 2005, particularly during the first months, the Inter-American Commission on Human Rights, in turn, has verified acts of violence, harassment of and threats against union, social, indigenous, political and student leaders who have expressed their public opposition to decisions taken during the Gutiérrez Administration. These acts of violence become factors that strike at the country’s fundamental guarantees and consequently its democratic and institutional stability.[191] For this reason, over the course of this year, the Commission has adopted precautionary measures in individual cases of threats against journalists and leaders of civil society organizations.[192]
166. This report of events has been made in order to offer a clear picture of the evolution of the institutional crisis in Ecuador. In recent years, the Ecuadorian political system has been one of the most unstable in the region. The average time in office of the administrations is under two years.[193] Matters touched upon here account for the institutional deficiencies that Ecuador has endured over the years. The political instability that has characterized the country was again manifest when an elected president, under circumstances of massive social protests, did not complete his term.[194] The Commission contends, as it has before, that the replacement of a president elected by the popular vote before the expiration of his or her term always is a serious event requiring a critical view from the standpoint of the defense of democracy and fundamental freedoms.[195] The Commission likewise condemns the disproportionate use of force during the massive protests made by the people, particularly those occurred in April, and profoundly regrets the loss of human life.[196]
167. The Commission also notes that, considering the current national situation, priority should be given to the strengthening of democracy and the consolidation of the rule of law, through the design of a new framework that respects the separation of powers. With this in mind, measures should be taken to reinforce judicial independence, judicial integrity and professionalism, and to ensure transparency, impartiality, integrity and professionalism as means to restore the people’s confidence.
168. A judiciary that possesses the characteristics of independence and autonomy places limits on abuses of authority and is guarantor of the law as well as of the protection of the rights of all persons.[197] On various occasions the Commission has recognized judicial independence and impartiality as essential for the protection of human rights and effective rule of law.[198] In addition, the Inter-American Democratic Charter[199] “recognizes that representative democracy is indispensable for the stability, peace, and development of the region” and, inter alia, identifies the separation of powers and independence of the branches of government as essential for its realization. It should be noted, moreover, that an independent judiciary is an ideal channel to ensure an effective administration of justice and, at the same time, guarantee the protection of individuals’ rights in society.
169. Thus, Ecuador’s institutional crisis affected the judiciary because of the irregularities that occurred with the dismissal of the Supreme Court justices during the restructuring of the judicial system in Ecuador since the end of 2004 and the beginning of 2005. In this respect, the Inter-American Court of Human Rights has stated:[200]
74. As for the possibility of removing judges, these Principles stipulate:
This very grave situation has begun to reverse itself with the important process of selection and appointment of the Supreme Court justices, who took their oath of office in November 2005. The IACHR hopes that this trend continues to solidify in the future.
170. The Commission notes that, along with these institutional factors, a matter that cannot escape analysis is judicial corruption. Bearing in mind that a basic condition to guarantee an effective Judiciary is broad access to prompt and effective justice, the Commission has received numerous reports alleging corrupt practices on the part of judicial officers. These practices range from demanding payments from litigants to accelerate the processing of the cases to giving bribes to influence Supreme Court justices’ decisions. These practices constitute obstruction and discrimination in the administration of justice, even more so if they are not followed by an investigation. Deprivation of the access to justice generally implies the denial of human rights, political exclusion and legal uncertainty.[204] Indeed, this phenomenon in judicial systems that have highly bureaucratic mechanisms, and slow proceedings, undermines the efficiency of the system and contributes to the deterioration of the people’s trust.
171. For this reason, the Commission stresses the need for a balance between independence and accountability. Judicial independence at any hierarchical level must work within a framework of ethical limits, established by law, oriented towards keeping this balance. Otherwise an erosion of the credibility of these institutions will ensue, which in turn will erode the foundations of the rule of law and the democratic framework. In this connection, it must be understood that the main problem to solve is not only the formal reorganization of the judicial branch,[205] but the recovery of the trust of the people in the state’s judicial institutions.
172. Having analyzed the state of the judicial branch, it is also useful to view the state of effectiveness of judicial guarantees in Ecuador. It should be noted that the Constitutional Court[206] is the one charged with protecting a series of rights related to human rights and, inter alia, to be the court of last resort for appeals related to amparo [defense of fundamental rights] petitions.[207]
173. This is also the case of habeas corpus, because the 1998 Constitution also provides that the judgments denying this petition must be heard by the Constitutional Court. It is useful in this regard to refer to the Follow-Up Report of 1999, which finds that the filing of a habeas corpus petition before a mayor – who is part of the executive branch of a local government and therefore is not an “independent and impartial” judge – for him or her to decide on a person’s provisional release, is not in accordance with the terms of the American Convention.[208]
174. Regarding habeas data,[209] the Commission is pleased to note the 2004 enactment of the Ley Orgánica de Transparencia y Acceso a la Información Pública [Organic Law on Transparency and Access to Public Information], which guarantees that all information held by public officials belongs to the citizens. The Commission furthermore acknowledges that the adoption of this norm as part of daily life implies a shift in the social paradigm of the people and their representatives, and recommends that its observance be followed with special care.
175. The Commission notes the appointment of justices to the Supreme Court of Justice with satisfaction, in the understanding that this is a step taken towards ending the institutional crisis. The seven month absence of the Supreme Court has left cases undecided, as well as a delay in the appointment of the Constitutional Court, given that pursuant to the norms of the Constitution, the Supreme Court must send two short lists of three candidates each for the selection of constitutional judges.[210]
176. Regarding the situation of judicial guarantees, the Commission observes that the partial restoration of the judicial system and of the institutions designed for the protection of fundamental rights will bring to the people the proper enjoyment and enforcement of their rights. From this standpoint, the Inter-American Court has stated that the guarantees established by article 8 of the American Convention assume that victims must be able to be heard and act on their respective proceedings,[211] which is possible only if the respective authorities can be counted on to hear those persons who believe that their rights have been violated.
D. Protection of individual rights
177. The issues explained above acquire particular relevance when it is borne in mind that, in practice, individual persons have been affected. The lack of operation of institutions designed for the protection of fundamental rights entails an interruption in their enjoyment.
178. The Commission has received numerous reports of violations of basic human rights principles in Ecuador. These allegations, in particular, refer to the right to life, the right to humane treatment, and the situation of imprisoned persons, this tree dimensions have our especial attention.
• Right to Life
179. The Commission has received information about deaths, attributed to members of the security forces, of individuals under official custody, and also about cases in which abuse of force on the part of officials charged with enforcing the laws under situations of social protest is alleged. In addition, there is information about killings committed by paramilitary-style bands, and several disappearances.
180. At this moment, the Commission is dealing with petitions in which these facts are denounced, these petitions will be analyzed and determined according to the pertinent regulation, statutory, and conventional norms. Other national[212] and international[213] organizations have presented consistent information with the alleged claims of police violence. According to the information received, in several of these cases, there were no judicial investigations to clarify the circumstances of these deaths, and court proceedings were not carried out, or were brought to a standstill.[214] In this connection, the Commission recalls that:
181. The Commission notes with concern that the panorama described does not differ much from the one described in 1997, and hence recommends to the new Administration that, in compliance with the responsibilities it assumed under international human rights treaties, it craft and implement public policies designed to raise consciousness and inform public officials regarding forms and models of behavior that abide by human rights norms.
182. Regarding forced disappearances, it should be noted that, to date, Ecuador has not ratified the Inter-American Convention on the Forced Disappearance of Persons,[216] nor has it legally defined it as a crime, including it in the country’s Criminal Code. This fact is a source of special concern, particularly if it is taken into account that the Commission has received complaints regarding alleged forced disappearances committed by police officers, and the fact that there is no corresponding legal typification hinders, although it does not make impossible, their trial in domestic courts. 183. In addition, the Commission has received complaints that allege physical maltreatment, even including torture on the part of police officers.[217] It is necessary to recall in this regard that, in its 1997 Report, the Commission recognized that “when an individual is in the custody of state agents, the State is responsible for the treatment accorded.” [218] The State has recognized that in Ecuador facts of tortures still happen.[219] Accordingly, it is up to the State, through its agents, to ensure that this type of situations be subjected to investigation and trial in order to find those responsible and thus keep these acts from going unpunished.
184. In the case of Ecuador, due to the situation of heightened social tension, an excessive use of force on the part of government agents in repressing public demonstrations or protests has been observed. Thus, the use of tear gas and rubber bullets has become a common means of repression, even without prior inspection to determine the presence of women, children, and senior citizens. [220] Agencies of United Nations have arrived to the same conclusion.[221]
185. In addition, the Commission has received information revealing the existence of a practice carried out in jails and penitentiaries, called ley de fuga [law of flight], consisting basically of extreme physical or psychological punishment and solitary confinement as a method applied to those persons who have attempted to escape or have been recaptured.
186. The Commission condemns excessive use of force as a way of repressing social protest; it also condemns the practice of any torture, as both contravene the principles of the American Convention. The Commission also again urges the Ecuadorian State to use ordinary jurisdiction instead military or police courts for cases of human rights violations. 187. The Commission has been informed about the enactment of a legal definition of detención firme [firm arrest]. Without seeking to interfere in the country’s domestic laws, the Commission notes with great concern that under certain conditions provided for by Law 2003-101[222] it allows the incarceration of individuals for an unreasonably long time period between indictment and trial. It should be highlighted that, in article 24, subsection 8[223] of its 1998 Constitution, Ecuador recognized that, in general, pre-trial custody could not exceed six months.
188. The Commission notes with satisfaction that over the last few years the State of Ecuador responded in a positive fashion to the IACHR recommendation, by increasing the annual budget assigned to the Ecuadorian institutions of social rehabilitation. However, it observes that, notwithstanding this increase, complaints have continued to be received regarding the physical and sanitary conditions of prisons, as well as regarding nourishment and medical attention. The problem of overcrowding is very serious, as currently these prisons have an inmate population that exceeds their physical capacity.
189. The year 2005, according to the data from the International Center of Prison Studies,[224] the total of the prison population in the Ecuador was of 12,251 detained people,[225] of which a 63% are under the modality of preventive detention. The Commission observes with worry these figures, especially taking into account that the official, physical capacity, of the 36 prison establishments of the country was originally designed for 7,463 people (December of 2004), and the present numbers show a level of occupation of 146.3%, that is to say surpassing their capacity in almost a 50%.[226]
190. This situation of overcrowding has involved that inmates have expressed their dissatisfaction with present conditions and have pressed for changed by carrying out hunger strikes or even by acting against their own physical integrity by crucifying themselves or sewing their mouths, in order to obtain authorities’ attention to their demands. The Inter-American Court, has established that whomever person under arrest has the right to live in conditions of compatible detention with its personal dignity and the State should guarantee him the right to the life and personal integrity. The Commission shares this criterion, and consequently, recommends al State to take the adequate measures to attend this issue.
191. Special consideration is also warranted for the panorama of violence within prisons. The Commission has been informed about serious acts of physical aggression committed against inmates. It is clear that delays in justice, overcrowding and the lack of adequate services produce a level of dissatisfaction apt to produce dangerous situations both for the inmate population and for their custodians. This is a serious danger and therefore requires that it be assigned priority status in terms of the Government’s attention.
192. Another issue of concern is that the Ecuadorian system for the administration of justice still allows special jurisdictions, including police and military courts, in cases in which there are complaints of human rights violations. The main observation is related to the information received by the Commission that in these jurisdictions: a) the necessary investigations to clarify the circumstances under which these deaths occurred are not carried out; b) judicial proceedings to establish who is responsible are not initiated, or they are suspended for long periods of time; c) the defendants have escaped under odd circumstances; d) dismissals of the cases against those responsible are handed down without sufficient legal grounds. To this it must be added that current legislation does not contemplate the participation of civil parties in these procedures. It should be highlighted in this respect that it is the opinion of the Inter-American Commission that special jurisdictions, such as the military or police ones, are not adequate to determine reparations when there are domestic human rights violations. Both the Court and the Inter-American Commission have noted on several occasions that special jurisdictions do not constitute appropriate fora to investigate, bring to trial, and punish human rights violations allegedly committed by members of the police force. [227]
E. General conclusions
193. The Commission has analyzed the current situation of human rights in Ecuador, with an emphasis on the institutional crisis which corrodes the rule of law and consequently the structural protection of human rights. The facts described herein explain the past and present difficulties faced by Ecuador. Political stability, within a country that faithfully maintains the separation and balance of powers is, above all, a basic condition necessary for the carrying out of effective public policies protecting human rights.
194. The Commission recognizes as an important improvement the consensus achieved on November 29, 2005, when after seven months, the justices of the Supreme Court were finally appointed, as a remarkable move forward. The Commission has followed developments in this process, which had the support of observers from the United Nations and the Organization of American States. At the same time, the Commission stresses that, in order to watch over this institution’s freedom of action and transparency, adherence to the law must be respected and no interference from interests other than justice should be allowed. In addition, the Commission expresses its interest in that the taking of office of the new Supreme Court will allow the Constitutional Court to resume its operations as soon as possible.
195. Currently the country does not have a Constitutional Court and this bars the people’s access to effective judicial resources. The Commission will give special attention to this aspect when the Court is again installed.
196. In addition, at this time, shortly after the Supreme Court of Justice has been installed, the Commission highlights the importance of respecting the independence of the judiciary. Regarding judicial guarantees and the administration of justice, the Commission recommends the adoption of a strategy to address the delay caused by the absence of a Supreme Court and a Constitutional Court. The Commission also reiterates the recommendations it made, and which have not yet been possible to implement, in its 1997, 1998 and 1999 reports, especially those referring to the protection of individual rights.
197. The Commission acknowledges the difficulties that the Ecuadorian State has had in facing this institutional crisis, and urges the Government to take into account the considerations contained in this report when it carries out its policies.
198. Finally, the Commission values the efforts of the Ecuadorian society towards restoring the rule of law and the reorganization of the judicial branch of government. Also, in accordance with its competence and functions, this Commission shall closely follow the steps taken to end the institutional crisis, as well as the general situation of human rights.
[138] In 2002, Lucio Gutiérrez was an electoral candidate for the Sociedad Patriótica 21 de Enero [January 21 Patriotic Society], which he founded and which was “supported by the indigenous peoples via an agreement with the Pachakutik movement, considered the political arm of the powerful Confederación de Nacionalidades Indígenas de Ecuador [Confederation of Indigenous Nations of Ecuador] (CONAIE)”. “Lucio Gutiérrez, un militar que perdió el poder olvidado por sus ex compañeros de armas [Lucio Gutiérrez, A Soldier Who Lost Power, Forgotten by His Former Military Comrades]” online source: www.mundo.es, April 21, 2005. [139] Inter-Am.Ct.H.R. Yatama Vs. Nicaragua Case. Judgment of June 23, 2005. Ser. C. No. 127, par. 225. [140] Corporación Latinobarómetro, Informe Latinobarómetro 2005, 1995-2005, Diez Años de Opinión Pública, [Latinobarómetro Report 2005, 1995-2005, Ten Years of Public Opinion].Santiago, Chile, 2005, p. 6. [141] Ibid., p. 7 [142] Ibid., p. 14 [143] Ibid., pp. 17-18 [144] Ibid., p. 21. [145] Ibid., p. 25. [146] Ibid., p. 44. [147] Ibid., p. 53. [148] Ibid., p. 28 [149] Ibid., p. 26. [150] Transparency International, “Corruption Perception Index,” online source: http://ww1.transparency. org/cpi/2005/cpi2005.sources.es.html#cpi, accessed on November 9, 2005. [151] Inter-American Convention Against Corruption, Preamble. This Convention was signed in Caracas, Venezuela, on March 29, 1996, and entered into force on June 3, 1996. Ecuador ratified it on May 26, 1997 and deposited the treaty on June 2, 1997. [152] Third Report on the Situation of Human Rights in Paraguay (2001), Chapter II, G., para. 45-52, citations omitted. [153] See Human Development Report 2005. To review the socio-economic situation of the country, also see the Follow-Up Report of 1998, para. 55-63. [154] See Human Development Report 2005. To review the socio-economic situation of the country, also see the Follow-Up Report of 1998, para. 55-63. [155] See Human Development Report 2005. To review the socio-economic situation of the country, also see the Follow-Up Report of 1998, para. 55-63. [156] Comisión Andina de Juristas [Andean Comission of Jurists], “La Ruta del Descontento” [“The Road Towards Discontent,”], Informe Anual sobre la Región Andina [Annual Report on the Andean Region], January 2005 p. 25.
[157]
Comisión Andina de Juristas,
“La Ruta del Descontento,” Informe Anual sobre la Región Andina,
January 2005 [158] Resolución 25-160 [Decision 25-160, November 25, 2004, R.O. N. (Registro Oficial No. – Government Registry No.)] 485 of December 20, 2004. The following judges and alternate judges to the Constitutional Court are hereby appointed: Doctors Milton Burbano Bohórquez and Amparo Lalama. (R-25-161); Doctors Estuardo Gualle Bonilla and Alejandro Suárez (R-25-162); Doctors Hernán Rivadeneira Játiva and Hernán Coello García (R-25-163); R-Doctors René de la Torre Alcívar and Ángel Polibio Chávez Alvarez (R-25-164); Doctors Carlos Julio Arosemena Peet and María Delia Aguirre Medina (R-25-165); Doctors Carlos Soria Seas and Fernando Alarcón Sáenz (R-25-166 ); Doctors Víctor Hugo Sicouret Olvera and José Nelson Vera Loor (R-25-167); Doctors Lenín Rosero Cisneros and Luis Mariano Vallejo López (R-25-168); Doctors Ricardo Izurieta Mora Bowen and Genaro Eguiguren (R-25-169). The following judges and alternate judges to the Supreme Electoral Tribunal are hereby appointed: Messrs. Wiison Hornero Sánchez Castello and Pedro Huerta Arce (R-25-170); Messrs. Carlos Pardo Montiel and Alfredo Arévalo (R-25-171); Messrs. Pedro Pablo Gómez Valdiviezo and Miguel Monsalve Aguilera. (R-25-172); Messrs. Giovanny Atarihuana and Antonio Guerrero (R-25-173); Messrs. Fabián Villarroel and Gustavo Avellán Naranjo (R-25-174); Messrs. Ramón Alarcón Clavijo and Fernando Patricio Chaves de Mora (R-25-175); Messrs. Jorge Valdospinos Rubio and Meliton Rodríguez Salazar. (R-25-176). [159] Oficio N.-321 [Official Letter] N.-321 – CEDHU/05. Communication received on April 18, 2005. [160] Resolución [Decision] 25-181, December 9, 2004, R.O. N. 485 of December 20, 2004. [161] The list of alternate justices is as follows: FIRST CHAMBER OF CRIMINAL LAW: Dr. Guillermo Castro Dáger, Dr. Francisco Icaza Garcés, Dr. Jorge Fantoni Camba. SECOND CHAMBER OF CRIMINAL LAW: Dr. Luis Alvarado Macías, Dr. Rossy Nevárez Rojas, Dra. Angelita Albán Llanos. FIRST CHAMBER OF CIVIL LAW: Dr. Carlos Pozo Montesdeoca, Dr. Luis Fernando Ortiz Bonilla, Dr. José García Falconí. SECOND CHAMBER OF CIVIL LAW: Dr. Bolívar Vergara Acosta, Dr. Bolívar Guerrero Armijos, Dr. Ramiro Román Márquez. THIRD CHAMBER OF CIVIL LAW: Dr. Ramón Rodríguez Noboa, Dr. Armando Bermeo Castillo, Dr. Efrén Gavilanes Real. FIRST CHAMBER OF LABOR LAW: Dr. Darwin Muñoz Serrano, Dr. Adolfo Cuvi Gaybor, Dr. Gonzalo Silva Hernández. SECOND CHAMBER OF LABOR LAW: Dr. Oswaldo Toledo Romo, Dr. Gonzalo Proaño Cordones, Dr. Norberto Fuertes Vallejo. THIRD CHAMBER OF LABOR LAW: Dr. Luis Cueva Camón, Dra. David Saa Cumandá Altamirano Escobar, Dr. Julio Jaramillo Arízaga, CHAMBER OF ADMINISTRATIVE LAW: Dr. Carlos Gerardo Vásquez, Dr. Ernesto Velásquez Baquerizo, Dr. Gonzalo Muñoz Sánchez. CHAMBER OF FISCAL LAW: Dr. Ángel Garzón Zapata, Dr. Efrén De la Torre Terranova, Dr. Tito Libio Mendoza Guillem, Dr. Gonzalo Guerrero Cazares. Decision 25-181, December 9, 2004, R.O. N. 485 of December 20, 2004. [162] El Telégrafo (Guayaquil) 12/9/04; El Nuevo Herald (Miami) 12/10/04 from AP; BBC News 12/10/04. [163] Four of the 31 justices were re-appointed to their position. [164] Article 202. The justices of the Supreme Court of Justice shall not be subject to term limits. They shall be dismissed from their position for the causes determined by the Constitution and laws. When a vacancy occurs, the Supreme Court of Justice, in plenary session, shall appoint the new justice, by a two-thirds favorable vote, observing the criteria of professionalism and judicial career, according to the law. In its appointments, the Court shall choose professionals whose careers have been judicial, of university teaching, or of liberal practice, alternating the choice in that same order. [165] See Articles 195-205 of the Constitution. [166] Copy of the Summary Minutes of the Special Session of January 14, 2005. Files of the General Secretariat of the Supreme Court, Quito, March 2, 2005. [167] UNGA, Civil and political rights, including the questions of independence of the judiciary, administration of justice, impunity. Note by the Secretary-General, A/60/321, 31 August 2005. [168] IACHR, Communication received on April 6, 2005. [169] “Dos muertos y 360 afectados en 9 días” [“Two Dead and 360 Affected in 9 Days”], April 21, 2005, online source: www.elcomercio.com. [170] Resolución [Decision] No. R-26-021 of April 17, 2005. [171] Press Release, IACHR 15/05, April 19, 2005. [172] Press Release C-075/05, April 20, 2005. [173] Communication received on April 22, 2005. [174] “Al Amparo del Artículo 167 De La Constitución Cesó A Gutiérrez: Congreso Posesionó A Alfredo Palacio Como Nuevo Presidente de La República” [Acting Pursuant to Article 167 of the Constitution, Gutiérrez Was Dismissed: The Congress Installed Alfredo Palacio as the New President of the Republic] online source: http://www.congreso.gov.ec/pages/noticias/contenido.asp?codigo_bol=816&sitio =noticias (accessed on November 9, 2004). [175] Communication received on April 22, 2005. [176] OEA/Ser.G., CP/Res. 880 (1478/05), April 22, 2005. [177] First “Report to the Permanent Council on the Situation in Ecuador, OAS Mission to Ecuador, April 26 to 30, 2005,” OEA/Ser.G, CP/doc.4028/05 corr. 1, 20 May 2005. (Original: Spanish). [178] Insulza: OEA apoyará fundamentos democráticos en el Ecuador [Inzulza: OAS will support democratic foundations in Ecuador] themiamiherald.com, July 28, 2005. [179] “Insulza se mostró optimista con proceso que vive Ecuador” [Inzulza showed optimism regarding the ongoing process in Ecuador] online source: www.cooperativa.cl July 27, 2005. [180] Congreso nacional dejó sin efecto la integración de los tribunales constitucional y supremo electoral [National Congress Annulled Judges’ Appointments to the Constitutional Court and Supreme Electoral Tribunal] http://www.congreso.gov.ec/pages/noticias/contenido.asp?codigo_bol=849&sitio=noticias. [181] Congreso Posesionó A Nuevos Integrantes Del Tribunal Supremo Electoral [Congress Installed New Members of the Supreme Electoral Tribunal] http://www.congreso.gov.ec/pages/noticias/contenido.asp?codigo_bol=768& sitio=noticiashttp://www.congreso.gov.ec/pages/noticias/contenido.asp?codigo_bol=768&sitio=noticias. [182] Congreso Define Procedimiento Para La Selección De Magistrados De Corte Suprema [Congress Decides Procedure for Selection of Supreme Court Judges] http://www.congreso.gov.ec/pages/noticias/contenido.asp?codigo_bol =826&sitio=noticias. [183] Informe sobre consultas realizadas en torno a la reestructuración de la Corte Suprema de Justicia del Ecuador. Sistema de las Naciones Unidas en el Ecuador. Oficina del Coordinador Residente. [Report on Consultations Regarding the Restructuring of the Supreme Court of Justice of Ecuador. United Nations System in Ecuador, Office of Resident Coordinator], May 26, 2005. [184] http://www.justiciaecuador.gov.ec/. [185] Organization of American States. Press Release. Reference: E-172/05. www.oas.org. [186] Joint Press Release. Quito, Ecuador, November 29, 2005. [187] Communication from the INREDH legal service requesting precautionary measures. Received by the Inter-American Commission on Human Rights on May 27, 2005. [188] Republic of Ecuador, Ministry of Foreign Relations. Notificación Declaratoria de Estado de Emergencia en las Provincias de Sucumbíos y Orellana [Announcement Declaring a State of Emergency in the Provinces of Sucumbíos and Orellana], No. 35582-GM-Sm-DGDHSA, Quito, August 18, 2005. [189] Congreso pide intervención de OEA en crisis de Ecuador [Congress Requests OAS Intervention in Ecuador’s Crisis], www.azcentral.com/lavoz/spanish/politics/ articules/politics_75827.html. [190] In this regard, Carlos María Ocampos, OAS representative in Quito, stated that the OAS “does not act ex officio, but at the request of the parties, all of the parties,” which is why the Executive must agree to that organization’s assistance. On October 28, 2005, President Alfredo Palacios explained the political situation to the OAS ambassadors [source]. Likewise, on October 30, 2005, the Government of Ecuador expressed its opposition to an OAS “intervention.” [191] IACHR, Press Release 35/05, October 28, 2005. [192] See, Chapter III of this Annual Report on the section dedicated to summarize those precautionary measures adopted by the IACHR during the year 2005 with regards to Ecuador. [193] IACHR, Press Release 8/05, April 19, 2005. [194] IACHR, Press Release 35/05, October 28, 2005. [195] Chapter IV Report, 1999, para. 35. [196] See supra para 32, 34 y 45. [197] Justice and Social Inclusion: The Challenges of Democracy in Guatemala, p. 7. [198] IACHR, Press Release 8/05, April 19, 2005. [199] Adopted by the General Assembly at its special session on September 11, 2001. [200] I/A Court H.R., Case of the Constitutional Court v. Perú. Judgment of January 31, 2001. Series C, No. 71, para. 73-74. [201] Adopted by the Seventh United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held in Milan from August 26 to September 6, 1985, and confirmed by the General Assembly in its resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985. [202] Principle 1, Ibid. [203] Principle 17, Ibid. [204] U.N. Commission on Human Rights 18 March 2005. 61st Session, Agenda item 11: “Civil and Political Rights: Interdependence between Democracy and Human Rights.” Report of the second expert seminar “Democracy and the rule of law” (Geneva, 28 February-2 March 2005) E/CN.4/2005/58 (Original in English). [205] In this connection it is important to stress that a reorganization of the Judicial Branch must bear in mind the values of independence, freedom of expression and association, tenure, professional secrecy, and immunity, which have been adopted by the United Nations in its Basic Principles on the Independence of the Judiciary. [206] Article 276: The Constitutional Tribunal will be competent to: …Hear pleadings regarding decisions denying habeas corpus, habeas data and amparo, and the appeals cases provided for by the amparo petition. [207] See Article 95 of the Constitution. [208] Follow-Up Report on Compliance by the Republic of Ecuador with the Recommendations Offered by the Inter-American Commission on Human Rights. Chapter V, para. 27. [209] See Article 93 of the Constitution. [210] Article 275 of the Constitution.
[211]
Cfr. this principle in the Case of Durand and Ugart,
I/A Court H.R., Judgment of August 16, 2000, Series C., No. 68, para.
129; I/A Court H.R., Case of the Constitutional Court.
Judgment of January 31, 2001, Series C, No. 71, [212] The Comisión Ecuménica de Derechos Humanos [Ecumenical Commission on Human Rights] informed that “according to their data bank from the year 2000 until March 2005 it has received reports of 158 persons who have been killed by officers of the National Police or by the military.”[212] There have also been fewer reports related to forced disappearances. This organization further stated that it had received reports of deaths in which police officers, in order to evade their responsibility, held that they occurred during armed confrontations, or that the persons were murdered while allegedly trying to flee, despite the fact that the trajectory and position of the bullets in the bodies indicate to the contrary. Communication received from the petitioners during the Hearing on the Situation of Human Rights in Ecuador. IACHR - 123 Sessions. [213] See, Amnesty International, Ecuador: Broken Promises Impunity Continues in the Fuero Policial. This report provides information about many events of alleged human rights violations committed by the ecuatorian police. [214]See, Amnesty International, ECUADOR WITHOUT AN INDEPENDENT AND IMPARTIAL JUSTICE THERE IS NO "ESTADO SOCIAL DE DERECHO", AMR 28/010/2003/s, October 30, 2003. [215] Report on the Situation of Human Rights in Ecuador, OEA, Ser.L/V/II.96, Doc. 10 rev.1, April 24, 1997. [216] Adopted at Belém do Pará, on June 9, 1994, at the 24th regular session of the General Assembly. Entry into force on March 28, 1996. Ecuador: signature not followed by ratification. [217] In this regard the Comisión Ecuménica de Derechos Humanos [Ecumenical Commission on Human Rights] has stated that since the year 2000 until May of 2005 it has received credible reports that 218 people have been tortured during investigations conducted in the offices of the Judicial Police, or the Anti-Narcotics Unit of the police. Over the same period it has received complaints of 2,876 persons who have been physically assaulted by police agents at the time of their arrest or by jail guards, as punishment for breaches of discipline. Communication received from the petitioners during the Hearing on the Situation of Human Rights in Ecuador. [218] OEA/Ser.L/V/II/96. Doc. 10 rev. 1. April 24, 1997. [219] Comité contra Torture, EXAMEN DE LOS INFORMES PRESENTADOS POR LOS ESTADOS PARTES CON ARREGLO AL ARTICULO 19 DE LA CONVENCIÓN. Terceros informes periódicos que los Estados deben presentar en 1997, Adición, ECUADOR CAT/C/39/Add.6, 28 de junio de 2004. Textualmente el Estado indicó: Ecuador recognized that within the timeframe that is within this report there human rights violations. These events respond not to a sistemic practice, nor they count with the aquiescence from the ecuatorian state, but to isolated excesses by state agents, for this reason Ecuador has try to the best of its resources to repair adequately, according to national legislation and to its obligations assumed in various international human rights treaties, to the victims of torture, and their families. [220] See, supra para. 32, 34 y 45. [221] Committee against Racial Discrimination: Serious anxiety before the communicated cases of excessive use of the force by the police, and the army against the indigenous was expressed, especially in the context of political demonstrations and civil disturbances. Final Observations of the Committee for the Elimination of Racial Discrimination: Ecuador. 02/06/2003. CERD/62/CO/2, para. 12. [222] Law of Reform of the Code of Criminal Procedure, the Organic Laws of the National Council of the Judiciary and the Office of the Attorney General, R.O. No. 743, see Article 10. [223] See Article 24, subsection 8) of the Constitution. [224] International Centre for Prison Studies, “Prison Brief for Ecuador”, online source: http: //www.kcl.ac.uk/depsta/rel/icps/worldbrief/south_america_records.php?code=217. [225] Including those in preventive detention. [226] To this respect, the Ecumenical Commission of Human Rights (CEDHU) on February 16, 2006, indicated that: “in conformity with the information emitted by the National Direction of Social Rehabilitation to January of the 2006 they would have in the jails 12.394 people, from which 7.777 are processed (6982 men and 795 women) and 4.617 are condemned (4110 men and. That is to say that only the 37.25% have a prison sentence, while 62.74% are persons under arrest in preventive detention waiting for a judicial decision. [227] See, e.g., IACHR, Report N° 64/01, Case 11.712, Leonel de Jesús Isaza Echeverry and Others, (Colombia) April 6, 2001, para. 22. Also see I/H Court H.R., Case of Durand and Ugart, Judgment of August 16, 2000, para. 117; I/A Court H.R., Case of Cesti-Hurtado, Judgment of September 29, 1999, para. 151. Also see IACHR, Report on the Situation of Human Rights in Chile, September 27, 1985, pp. 199-200, OEA/Ser.L/V/II.66 doc. 17; IACHR, Annual Report 1996, March 14, 1997, p. 688. IACHR, Report on the Situation of Human Rights in Ecuador, April 24, 1997, p. 36. IACHR, Report on the Situation of Human Rights in Brazil, September 29, 1997, p. 50.
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