Over the course of its history, the Commission has consolidated the practice of following up a report on the situation of human rights in a particular member state of the OAS prepared in conformity with Article 62 of its Regulations with a report intended to update the situation and evaluate compliance with the recommendations it previously issued. The Commission has decided to refine this longstanding practice by publishing these follow-up reports in a separate chapter of its Annual Report.

These reports are prepared with the objective of evaluating measures taken to comply with the recommendations issued therein and providing updated information on the themes treated in the country report, in accordance with the prevailing circumstances. Following its established practice, the Commission prepares these follow-up reports on the basis of its analysis of information collected from a variety of sources, including, to the extent pertinent, that provided by the member state, diverse actors within civil society and other sources.

 FOLLOW-UP REPORT ON COMPLIANCE BY THE REPUBLIC OF ECUADOR
WITH THE RECOMMENDATIONS OFFERED BY THE
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS IN ITS
1997 REPORT ON THE SITUATION OF HUMAN RIGHTS IN ECUADOR

BACKGROUND

1. The Inter-American Commission on Human Rights (hereinafter "the Commission"), during its 96th Special Session held on 21–25 April 1997, adopted its "Report on the Situation of Human Rights in Ecuador," which was published in May 1997. This report was the result of an on-site visit by the Commission to the Republic of Ecuador (hereinafter "Ecuador," "the State of Ecuador," or "the Ecuadorian State") during November 1994, together with background information subsequently given to the Commission by governmental, nongovernmental, and international agencies and by cooperation and technical assistance bodies.

2. The report basically covered events occurring in the Ecuadorian State from mid-1992 through September 1996 and was divided into 11 chapters.1 In each of the report’s chapters the Commission conducted a legal and factual analysis of different circumstances in accordance with the terms of the American Convention on Human Rights (hereinafter "the American Convention") and other human rights instruments. Additionally, in each of these chapters the Commission presented its conclusions and offered the applicable recommendations to the Ecuadorian State.

3. In the light of the introduction to this chapter, the Commission will evaluate evaluate the measures adopted by Ecuador to compliance the Commission recommendation based on its "Report on the Situation of Human Rights in Ecuador", published in may 1997.

4. In particular, this follow-up report will analyze those recommendations that, in the Commission’s opinion, warranted immediate steps in order for the Ecuadorian State to provide true protection for human rights and those recommendations in which the Commission, based on the information received, has detected important changes worthy of special mention. This report does not at this time aspire to analyze the Ecuadorian State’s compliance with each and every one of the Commission’s recommendations, since the Commission is aware that fully addressing some of its recommendations require a longer period of time.

5. Thus, this follow-up report deals with each of the chapters of the Report on the Situation of Human Rights in Ecuador, first describing the recommendation offered by the Commission and then assessing compliance with it by the Ecuadorian State.

6. The methodology used by the Commission in preparing this follow-up report is based on information supplied by Ecuador at the Commission’s request.2 Information provided by the Ecuadorian State and the Ecumenical Human Rights Commission (CEDHU) at Commission headquarters during the follow-up hearing into Ecuador’s compliance with the Commission’s recommendations in its Report on Human Rights in Ecuador was also taken into consideration,3 as was information given to the Commission by the Andean Commission of Jurists and other nongovernmental and international organizations.

7. The draft report was approved by the Commission in its 102 period of ordinary sessions. On the 12 of march, 1999, the Commission sent the draft report of the to Ecuador, according to the terms listed in article 63 of its ruling, granting the State 30 days by which it could formulate observations fitting to the report. Ecuador did not offer any such observation. In spite of that, the Commission incorporated the changes of fact or law that are the public notice and consequentially, made other changes it considered pertinent.

8. On April 13 1999, the Commission approved the final report and its publication in Chapter V of the current Annual Report.

II.    LEGAL AND INSTITUTIONAL GUARANTEES IN THE REPUBLIC OF ECUADOR

9. In this chapter of its Report on the Situation of Human Rights in Ecuador, the Commission analyzed the main legal and institutional guarantees in force in the State for guaranteeing and promoting full respect toward human rights.4 In this regard, the Commission offered the following recommendation to the Ecuadorian State:

10. On 11 August 1998, some time after the Commission’s adoption of the Report on the Situation of Human Rights in Ecuador, the Ecuadorian State adopted a new Constitution drawn up by a National Constituent Assembly convened for the purpose. Similarly, in June 1998, elections were held within a democratic, free, open, and informed electoral process; as a result of this, Dr. Jamil Mahuad was elected to serve as President of the Republic and took office on 10 August 1998.

A.    The New Constitution of the Republic

11. In June 1997, President of the Republic Dr. Fabián Alarcón decided to convene a National Constituent Assembly in order to draft a new Constitution. The members of the Constituent Assembly, chosen by elections held in May 1997, presented the citizenry with a new Constitution that came into force on 10 August 1998.

12. The new Constitution has opened up new institutional prospects and has set the challenge of ensuring true currency for basic rights and their protection.

13. In the area of human rights, the Constitution offers a new classification of citizens’ rights and guarantees, which it separates into civil, political, economic, social and cultural, and collective rights.5

14. The new Constitution also gives human rights a new supra-legal nature by stating that "the rights and guarantees indicated in the Constitution and in other international instruments do not exclude others that arise from the nature of the person and that are necessary for full moral and material development."6

1.    Supremacy and Immediate Enforcement of Human Rights

15. Chapter I (General Principles) of Title III (Of Rights, Guarantees, and Duties) of the Ecuadorian Constitution states that the "State’s highest duty is to respect and ensure respect for the human rights guaranteed by the Constitution," a phrase also contained in the previous Constitution. It goes on to say that "the State shall guarantee with respect to all its inhabitants, with no discrimination whatsoever, the free and effective exercise and enjoyment of the rights set forth in this Constitution and in the declarations, covenants, agreements, and international instruments in force."7 The new text added the phrase "with no discrimination whatsoever" to this constitutional provision, thus reaffirming the universal nature of human rights.

16. With regard to the enforcement of constitutional rights, the new Constitution states that "the rights and guarantees established in this Constitution and in the international instruments in force shall be directly and immediately applicable by and before any judge, court, or authority." Thus, the new Constitution states for the first time that "international instruments" enshrine rights that are to be immediately effective and enforced, which should certainly favor the application and effectiveness of international rules in individual cases and, by so doing, overcome the resistance of judges toward them.8

17. Further to this, the new Constitution states that "any judge or court may, in the proceedings brought before it, either at its own initiative or at the request of one of the parties, declare the inadmissibility of a legal provision that contravenes the rules set forth in the Constitution or in the international instruments, without prejudice to its ruling on the substance of the case at hand."9 This upholds not only the supremacy of the Constitution and the international human rights instruments; it also provides them with an effective judicial guarantee by means of the diffuse control given to all the courts.

18. The new Constitution states that the body responsible for overseeing the supremacy of the Constitution is the Constitutional Tribunal, the functions of which include "hearing allegations of unconstitutionality in style or substance made with respect to organic laws, decree laws, decree, ordinances, statutes, regulations, and resolutions issued by agencies of the State, and suspending the effects thereof either in whole or in part." It is also empowered to hear allegations of unconstitutional acts committed by any public authority. The Constitutional Tribunal is also competent to review judgments refusing habeas corpus, habeas data, and amparo suits, along with the actions provided for in amparo suits.10

2.    Amparo Remedies

19. The new Constitution introduced reforms favoring human rights protection through amparo remedies, particularly as regards to the persons who can file such suits, the nature of the proceedings, the acts and individuals they can cover, and the rules that can be violated.¹¹

20. The new Constitution states, as did the old one, that "any person" can bring amparo actions, and it also empowers collective bodies to bring amparo suits by means of a representative. It also now states that amparo proceedings are to be given preference and must be processed summarily. One major advance is that not only the consequences of official actions can be covered by this remedy, but also the "failures to act" of the authorities, when they violate or could lead to a violation of both the rights enshrined in the Constitution as well as those set forth in international agreements and treaties in force in the State of Ecuador. Amparo actions can now be brought "against private citizens, when their behavior seriously and directly affects a collective or community interest or a diffuse right." Judgments refusing amparo relief must be heard by the Constitutional Tribunal.12

3.    Habeas Data

21. As regards habeas data relief, the general guidelines of the previous Constitution are maintained: all persons are entitled to access to the documents, database, and reports kept on them or their property by agencies both public and private, and they are entitled to be informed of the use or purpose they serve.13

22. The innovations are that "if a failure to respond causes harm, the affected person may demand reparations," that "the law shall establish a special procedure for accessing data held in files related to national defense," and that judgments refusing habeas data are to be heard by the Constitutional Tribunal.

4.    Habeas Corpus

23. The treatment given to habeas corpus relief under the new Constitution is, in general terms, the same as set forth previously. However, new elements were introduced to improve the remedy and better ensure the defense of personal freedoms.14

24. One innovation under the new Constitution is that the municipal authority (the mayor) must, within 24 hours of the action being brought, order the appellant brought before him immediately and must, within that same 24-hour period, issue a judgment in the case. For the first time the Constitution also provides for the civil and criminal liability of mayors who fail to process habeas corpus remedies.15 The new Constitution also states that rulings denying habeas corpus must be heard by the Constitutional Tribunal.¹⁶

25. The Commission notes with satisfactions these innovations in the new Constitution, which will keep these remedies from being rejected by the municipal authorities and ensure that they are processed with the speed they warrant.

26. Irrespective of the above, the Commission has been informed that these constitutional provisions is not being observed in full, and that some mayors are taking longer than the time stipulated by the Constitution and by law before issuing their ruling on the petitioner’s freedom.

27. The Commission also believes it is important to note that under Articles 8 and 25 of the American Convention, all individuals are entitled to simple and prompt recourse, with the applicable guarantees, before a competent judge or tribunal, for protection against actions that violate their basic rights. The Commission believes that bringing habeas corpus remedies before mayors, who are not independent judges, for them to decide on a person’s provisional release is not in accordance with the terms of the American Convention, which expressly states that all remedies must be heard and decided upon by a judge or court.

28. In this regard, the Commission notes that under Articles 8 and 25 of the American Convention, all people are entitled to simple and prompt recourse before an independent, competent, and impartial court to protect them against actions that violate their basic rights. The Commission therefore holds that it is contrary to the American Convention to assign habeas corpus remedies to mayors, who are a part of the executive branch of local government and, consequently, not "independent and impartial" judges as required by the Convention.

29. As regards the People’s Defender, the same general lines contained in the old Constitution apply: the People’s Defender is to enjoy economic and administrative autonomy, and his functions are to include the promotion and sponsoring of habeas corpus and amparo actions for those individuals in need thereof and the defense and promotion of the basic rights set forth in the Constitution.17

30. The new Constitution, like the previous one, stipulates that the People’s Defender is to be elected by two-thirds of the members of the National Congress; one interesting innovation, however, is that before choosing a People’s Defender, the National Congress must hear the opinion of the legally constituted nongovernmental human rights organizations.

31. In September 1998 the National Congress appointed Dr. Milton Alava to serve as People’s Defender; Dr. Alava then proceeded to choose his provincial delegates. In connection with this, the Commission has been informed that the nongovernmental organizations went to the Supreme Court to challenge Dr. Alava’s appointment as People’s Defender, since they had not been consulted regarding his appointment as required by the new Constitution.

6.    The National Council of the Judicature

32. The National Council of the Judicature is the body charged with the administrative and disciplinary oversight of the judiciary, with appointing judges to serve on lower courts and tribunals, and with setting the fees applicable for judicial services.18

33. The Council as such was created by the 1992 amendments to the former Constitution. It did not, however, begin functioning until March 1998 when the Organic Constitutional Law of the National Council of the Magistrature was enacted.

34. One of the main changes to the National Council of the Magistrature made by the new Constitution is the provision that "all magistrates and judges under the executive branch shall be transferred to the judicial branch and, until such time as the laws provide otherwise, shall observe their own organic laws. This provision shall apply to military, police, and juvenile judges. Should any other public official has among his powers that of administering any form of justice said power shall be forfeited and transferred to the corresponding bodies of the judicial branch. The National Council of the Judicature shall submit draft amendments modifying the corresponding legislation to the National Congress so that these provisions can be enforced. Administrative personnel who are currently working at military, police, and juvenile courts and tribunals and whose stability is guaranteed shall become a part of the judicial branch."19

35. It is hoped that once the National Council of the Judicature sends the National Congress the draft amendments modifying the applicable laws and placing the criminal and military courts under the normal justice system, the same thing will happen with the juvenile judges who were previously subject to the executive branch through the Ministry of Social Welfare.

36. On 27 May 1997 a vote was held in which the citizenry came out in favor of depoliticizing and modernizing the Supreme Court of Justice. The new Supreme Court Judges were elected by the National Congress from names put forward by a Special Commission comprising representatives of the three branches of government. This Special Commission selected the Supreme Court candidates from shortlists of three names chosen by civil society through the electoral colleges.

37. The May vote also decided that Supreme Court judges would enjoy security of tenure, except if they violated the terms of the Constitution or other laws; this was incorporated into the new Constitution.20

8.    Other Important Reforms

38. Children, under the new Constitution, are considered citizens and are entitled to enjoy all the rights and services provided by the State. Children and adolescents are considered a "national priority."21

39. The Constitutional Tribunal, in its Resolution No. 106 of 27 November 1997, abolished the crime of homosexuality, deeming it to constitute discrimination on the grounds of sexual orientation and in contravention of international human rights agreements.

B.    The State of Emergency

40. On 9 March 1999, pursuant to Articles 180 and 181 of the Constitution, the Ecuadorian Government declared a state of emergency across the entire nation in response to the growing social unrest caused by the problematic economic situation the country was facing.^{22 23} The state of emergency was declared "terminated" by executive decree No 717 of march 18, 1999. The "declaration" as well as "termination" of the state of emergency were notified to the Secretary General of the OAS simultaneously in the same communication on march 29, 1999.

41. Earlier, on 11 January 1999, the Ecuadorian Government had issued its Decree No. 483, declaring a state of emergency in the province of Guayas for a period of 60 days. The reasons the decree gave for declaring the state of emergency were that the area was being "affected by a wave of crime, threatening the life and property of the citizenry," which "has led to major internal disarray... with serious repercussions that are upsetting the normal course of citizens’ activities and which must be addressed through extraordinary means."24 As a result of the state of emergency, the constitutional rights enshrined in Article 23, sections 12 (inviolability of homes) and 14 (free transit) have been suspended. In addition, meetings on public thoroughfares or in parks after 10:00 p.m. have been prohibited, and, at midnight, sales of liquor must cease and places of public entertainment must close. The deployment of the security forces was also ordered to "reestablish the security needed for the normal development of citizens’ activities in this province." The decree also created the Regional Security Committee, headed by the Governor of Guayas and involving the armed forces, the police, the Guayas Traffic Board, and the Civic Council. In compliance with Article 27 of the American Convention, notice of this declaration of a state of emergency was given to the General Secretariat of the Organization of American States on 12 January 1999. This notification indicated its duration (60 days), the reasons behind it, and the rights that were being suspended. Thus, the Ecuadorian State complied with the Commission’s recommendation that whenever a state of emergency is declared, notice must be given to all the OAS member states through the General Secretary of the Organization, indicating the guarantees suspended, the motives, the duration, and the date given for the termination of that suspension.

42. Regarding the state of emergency declared in the province of Guayas, several nongovernmental organizations have informed the Commission that a large number of people have been arrested — mostly for not being in possession of ID papers during security operations — and subsequently taken to overcrowded detention centers where they must spend the night in the open air before being released; in addition, many people have been mistreated or tortured.25 People arrested by members of the armed forces are taken to military facilities, most notably the San Eduardo Naval Base. Reports of torture and physical and psychological abuse during detention have been received. The Commission has also been informed that during the struggle against crime in Guayas province, members of the armed forces and the police have allegedly caused the death of some innocent civilians, including Michel Zambrano Gilces, Carlos Jurado Villegas, and Victor Hugo Avilés Vásquez.

43. The Commission repeats that under the American Convention on Human Rights, a country can only take measures that have the effect of the suspension of the guarantees under the Convention "in time of war, public danger, or other emergency that threatens [its] independence or security."26 The measures taken as a result of the declaration of the state of emergency must observe the requirements of reasonableness, proportion, duration, and circumstances set forth in article 27 of the American Convention. In accordance with the American Convention the suspension of determined guarantees must be an exceptional circumstance brought on for one of limited reasons it list.27

44. The Commission is aware of the difficult economic situation facing Ecuador, the social unrest this has created, and the seriousness of the crime rates in certain areas of the country, including the province of Guayas. In this regard, the State is obliged to take the steps necessary to guarantee the security of the citizenry through mechanisms that observe the standards of respect for human rights applicable in a democratic society. The Commission is of the opinion that fight with the crime and to reduce the social unrest caused by the economic situation by the suspension of the guarantees declaring the state of emergency does not comply with the American Convention’s guidelines as to when such declarations are admissible. The State has — and is required to have — other mechanisms for channeling social unrest and fighting crime that do not involve suspending the population’s fundamental guarantees.

45. Furthermore, both declarations of states of emergency have ordered the deployment of the security forces to ensure civic security. In this regard, and with its continental experience to back it up, the Commission repeats its concern about the use of the armed forces to perform civilian police functions, in that the armed forces are trained to carry out duties other than those of controlling crime and ensuring the security of the citizenry.28

46. Articles 145 and 147 of the National Security Law stipulate that during states of emergency, actions constituting the crimes set forth therein as well as crimes punishable by imprisonment must be judged under the Military Criminal Code. In the Commission’s opinion, a rule of this nature, giving military courts full jurisdiction to try civilians for the crimes referred to, is incompatible with and in contravention of Article 27(2) of the American Convention, which states that there are some rights and freedoms that cannot be suspended under any circumstance, including "the judicial guarantees essential for the protection of such rights."29

47. Under the terms of Article 27(2), the judicial guarantees essential for the protection of those rights are "those [legal procedures] that ordinarily will effectively guarantee the full exercise of the rights and freedoms protected by that provision and whose denial or restriction would endanger their full enjoyment."30 This implies the intervention of an independent and impartial court of law for ruling on the legality of the trials conducted during the state of emergency and controlling the provisions enacted, to ensure that "they are proportionate to the needs [of the situation] and do not exceed the strict limits imposed by the Convention or derived from it," thus preserving the rule of law.31 In this regard, the Inter-American Court of Human Rights has ruled that the essential judicial guarantees are among others those listed in Articles 7(6), 8, and 25 of the American Convention; in connection with this, the Commission refers to its jurisprudence maintaining that the proper jurisdiction for dealing with acts committed by civilians belongs to the civil courts and not to military tribunals and that the latter are only competent to deal with crimes committed by members of the military while on active duty.

48. In this particular case, the terms of the National Security Law are especially incompatible with and in breach of the American Convention, in that they imply a suspension of rights that cannot be suspended in any circumstances, such as the judicial guarantees enshrined in Articles 8 and 25 of the American Convention. This is because giving the military criminal courts immediate jurisdiction over a wide range of situations involving civilians undermines the right to a trial before an independent, impartial court: this is because the armed forces play a dual role — first, they are active agents during the state of emergency and, second, the military courts administer justice with regard to actions affecting civilians that are not an inherent part of military functions.

49. The Commission urges the Ecuadorian State to ensure that crimes involving civilians — and especially those alleging violations of basic rights by soldiers or police officers during the state of emergency — are dealt with by the civil courts and not by military justice in accordance with the rules of due legal process set forth in Articles 8 and 25 of the American Convention and, when applicable, to ensure that the perpetrators are punished and that the victims receive restitution for the human rights violations suffered.

C.    The National Human Rights Plan

50. In accordance with the guidelines set at the 1993 World Conference on Human Rights held in Vienna and arising from its own assessment and recognition that civil, political, economic, social, and cultural rights in the country had deteriorated and that the conditions necessary for their full enjoyment had not been created, on 24 June 1998 the Ecuadorian State decided to create a National Human Rights Plan.³²

51. The decree described and set the goals and aims of the National Human Rights Plan in accordance with strategic lines of action; it also ordered the drawing up of operating plans at the sectoral level, in conjunction with civil society, for inclusion as appendices to the National Plan.33

52. The Commission would like to express its appreciation of this State initiative, which represents a true contribution toward the protection and promotion of human rights in Ecuador. Similarly, it appreciates the fact that in drawing up the national and sectoral plans, the different sectors of Ecuadorian society were consulted and their opinions were taken into consideration.34

53. The Commission will therefore closely follow the policies and decisions adopted by the State of Ecuador in pursuit of the goals of the National Human Rights Plan, together with civil society’s monitoring of it.

III.    THE SOCIOECONOMIC CONTEXT AND ATTENDANT RIGHTS

54. This section of the Report on the Situation of Human Rights in Ecuador offered a brief analysis of the social situation of the Ecuadorian population and the progressive development of economic and social rights.35 In connection with this, the Commission presented the Ecuadorian State with the following recommendation:

55. Ecuador’s figure for the human development index calculated by the United Nations Development Program (UNDP) has, since 1996, been in decline: Ecuador ranked 64th in 1996, 72nd in 1997, and 73rd in 1998.36

56. In the life expectancy figure, there has been a slight increase: it stood at 69.3 in 1997 and rose to 69.5 in 1998.37

57. There was a drop in per capita income between 1997 and 1998: USD $4,626 in 1997 compared with USD $4,602 in 1998.38

58. The proportion of the population living in poverty remained essentially the same: 70 percent live in conditions of poverty. In Ecuador, 35 percent of the population earn less than one dollar a day. These levels of poverty are more pronounced in rural areas, where 65 percent earn less than a dollar a day.39

59. The external debt has increased: the figure stood at USD $14,586 million in 1996; $15,099 million in 1997; and $15,765 million in 1998.40

60. The private polling company CEDATOS conducted comparative studies in February 1997 and July 1998. Inflation rose from 31.7 percent in February 1997 to 35.9 percent in mid-1998. The budget deficit rose from 3.5 percent to 6.5 percent of GDP. Unemployment rose from 12 to 14 percent. Interest rates rose from 25 to 40 percent. The foreign debt increased to over USD $15 billion, and the cost of the basic shopping basket soared from 1.8 million sucres to 3.047 million.41 Falling oil prices and the El Niño phenomenon had an impact on all these increases.

61. Ecuador’s low socioeconomic figures have begun to create intense discontent among the population, which has translated into strikes and social mobilizations; these need to be swiftly and carefully addressed.

62. The Commission took note of the existence of a group economic measures, presented by de President of the Republic to the Congress, that were the object of protests and social movements. Also, the Commission took note of negotiations and dialogues between different political sectors with the objective to reach agreements respect the content of such economic measures, in such way that they would cause the minor

63. The Commission will closely follow the progressive development of economic and social rights in Ecuador and, at a later date, it will report on them.

IV.    THE RIGHT TO JUDICIAL RECOURSE AND THE ADMINISTRATION OF JUSTICE

64. In this chapter of its Report on the Situation of Human Rights in Ecuador, the Commission analyzed the functioning of the justice system as a guarantor of human rights.42 In this regard, the Commission offered the following recommendation to the Ecuadorian State:

65. The Commission notes that the new Constitution specifically includes, with regard to the right of defense, the State’s obligation of establishing public defenders to represent indigenous communities, workers, women, victims of domestic violence, and all individuals without the money to pay for counsel.43 Irrespective of this, however, the Commission has been informed that the Ecuadorian State has as yet not implemented this constitutional provision because it lacks the necessary funds.

66. The new Constitution also establishes the right of all individuals to be duly informed, on a timely basis and in their mother tongues, on proceedings brought against them.44

67. The Commission also believes it is important that the new Constitution stipulates that "resolutions made by the authorities that affect individuals must be duly grounded," and that "evidence obtained or used in violation of the Constitution or of law shall be void of all effect."45

68. In order to combat slowness and inefficiency in the administration of justice, the State of Ecuador incorporated into its new Constitution two rights that were not previously stated in express terms: the right to juridical security, and the right to due process and delay-free justice.46

69. The Commission has received reports that as a result of the lack of dispatch and credibility within the Ecuadorian justice system, crime victims and their friends are attempting to "take justice into their own hands," which has led to lynchings and revenge attacks. In this regard, the Commission has been told of a case involving a group of adolescents who had stolen a taxi-driver’s car and who were kidnapped, tortured, and then burned by a group of taxi-drivers in revenge for the crime they had committed.47 48 The Commission stresses once again the importance of justice and of struggling against impunity of all kinds. At the same time, the Commission expresses its most emphatic rejection of lynchings, a phenomenon that violates respect for such basic rights of individuals as the right to life and to legal justice. The Commission urges the Ecuadorian State to adopt effective measures that will allow crime to be fought efficiently within the framework of the rule of law and that will enable criminals to be punished legally; it also urges the State to take immediate steps to halt the phenomenon of lynchings.

70. The Commission notes that in spite of the constitutional innovations aimed at streamlining the justice system and the legal amendments made to introduce trials at which witnesses provide live statements, in practice the administration of justice in Ecuador often lacks credibility among the people and it is still not effective in resolving the conflicts brought before it and in punishing the perpetrators of human rights violations. Similarly, the Commission has seen that in many instances, the military courts continue to act with impunity with regard to members of the armed forces who have committed human rights violations. Thus, the absence of an efficient justice system is still one of the major obstacles to the true enjoyment of human rights in the country.

71. The Commission will closely follow the ongoing changes within the administration of justice in Ecuador and, at a later date, it will report on them.

V.    THE RIGHT TO LIFE

72. In this chapter the Commission examined the right to life in Ecuador, with reference to civilian deaths caused by members of the police and the armed forces, deaths of people while in the custody of agents of the State, the excessive use of force by members of the security forces, and disappearances.49 In connection with this, the Commission offered the following recommendation:

73. The Commission notes with satisfaction that the new Constitution contains a provision stating that statutes of limitations, pardons, and amnesties cannot be applied to proceedings and punishments for the crimes of genocide, forced disappearances, kidnapping, and homicide for reasons of politics or beliefs.50 Similarly, the Commission notes that the new Constitution contains a provision specifically stating that "obedience to orders from above shall not extinguish liability."51

74. The Commission notes with satisfaction that the State of Ecuador has ratified the Protocol to the American Convention on Human Rights to Abolish the Death Penalty.52

75. The above legislative and institutional progress notwithstanding, the Commission has received reports that violations of the right to life are still committed by agents of the Ecuadorian State, particularly officers of the national police. Merely as examples, the Commission offers the following brief descriptions of cases that have been reported:

76. On 3 December 1998 a waste disposal operative found, in a sack, the body of Mr. Saúl Cañar Pauta, national secretary for population and youth affairs of the Ecuadorian Confederation of United Working Class Organizations (CEDOCUT), who had disappeared on 26 November of that year.

77. On 28 December 1998, in the city of Porto Viejo, Messrs. Carlos Avilés, Julio Segovia, Luis Castillo, José Valladolid, Vicente Rengifo, Enrique Zambrano, and Miguel Vargas were allegedly killed during an operation planned by commandos from the Guayas Police Operations and Rescue Group, who had organized the operation to prevent the attempted robbery of a truck carrying money. According to witnesses, the bodies of these individuals were placed in the street in front of the police barracks and subsequently taken to the morgue.

78. On 31 December 1998, Mr. José Arreaga allegedly died as a result of an raid carried out by around 40 officers from the Guayaquil Police Intervention and Rescue Group; at the time he was standing next to a group of people playing indoor soccer.

79. The Commission is also interested in light being cast on the reasons behind the deaths of police officers Carlos Vera and Marlon Betancuth and in ensuring that the perpetrators are punished. The two officers were apparently killed by other members of the police while wearing civilian clothes.

80. The Commission urges the State of Ecuador to ensure that the ordinary courts investigate, in accordance with the rules of due legal process, those cases in which members of the armed forces and/or national police are involved in human rights violations, in order to avoid impunity and to punish the guilty properly.

81. The Commission expresses its strongest condemnation and repulsion at the deaths of Dr. Jaime Hurtado González, a member of the Ecuadorian Congress and a trade union leader, his nephew Wellington Rojas, and Deputy Congressman Dr. Joel Tapia, all of whom were members of the People’s Democratic Movement (MPD) and were killed by persons still unknown. The Commission expresses its deepest concern about crimes of this kind committed against democratic leaders, and it urges the Ecuadorian State to take all the steps necessary to clear up this incident, punish the perpetrators, and prevent similar incidents occurring in the future. The Commission will closely follow developments in the investigations of the events leading up to the death of these three people and in the punishment of the perpetrators.

82. The Commission will closely follow all matters related to the right to life, with particular attention to the effective investigation and punishment of the guilty in cases in which said right was allegedly violated through the actions of agents of the State, and, at a later date, it will report on the matter.

VI.    THE RIGHT TO HUMANE TREATMENT

83. In this chapter of the report, the Commission paid particular attention to studying the treatment of detainees by the national police and the security forces.53 In this regard, the Commission made the following recommendation to the Ecuadorian State:

The IACHR exhorts the State of Ecuador to take the additional necessary measures to realize its commitment to ending torture and other abuse of detainees. Adherence to this commitment is required under the American Convention on Human Rights. Ensuring the right of individuals to be free from torture and inhumane treatment requires measures of prevention and safeguard, and measures of reparation and remediation in any instance where this right is violated.

Concrete steps to be taken by the State should include:

• Implementing measures to ensure that all persons in detention are immediately informed of their rights, including their right to bring complaints in the case of mistreatment;

• Taking all necessary steps to ensure that persons detained are held in officially recognized detention facilities, and that all detentions are immediately recorded in a central registry accessible to the public;

• Adopting measures to confront the practice of prolonged incommunicado detention; within the framework of the present report, the Commission expresses no opinion as to the compatibility of incommunicado detention for the period provided for in Article 130 of the Code of Criminal Procedure, but wishes to indicate that it has received denunciations of prolonged incommunicado detention which would clearly contravene both domestic law and the American Convention;

• A selection process to screen prospective members of law enforcement and public security forces, as well guards and other prison personnel, to ensure that individuals selected for these positions demonstrate the capacity to adhere to the norms regulating the treatment of all persons in detention;

• Enhanced training for the public officials in charge of law enforcement with respect to human rights norms; training activities should be strengthened to develop an institutionalization of respect for human rights within the public forces;

• Ensuring the thorough and expeditious investigation of all denunciations of torture or inhuman treatment, and the prompt submission of those implicated to the appropriate judicial mechanisms for prosecution and punishment;

• Adopting, pursuant to Article 2 of the American Convention, the internal measures necessary to ensure that — as is already stipulated by law — confessions or declarations obtained under duress are not permitted to be entered into evidence in the criminal process;

• Adopting the internal measures necessary to limit the jurisdiction of special police and military tribunals to only those crimes of a specific police or military nature; cases concerning torture and other mistreatment of detainees are to be submitted to the ordinary civilian courts;

• Adopting the internal measures necessary to expressly set forth the right of individuals subjected to torture to bring civil actions for the purpose of seeking compensation for the damages suffered;

• Finally, the Commission recommends that the State of Ecuador take the steps necessary to ratify the Inter-American Convention to Prevent and Punish Torture, which further recognizes and defines the obligation of states parties to take effective measures to prevent and punish torture, and other cruel, inhuman, or degrading treatment or punishment within their jurisdiction.

84. The Commission is pleased to note that the new Constitution stipulates that "all persons, upon being arrested, shall be entitled to clear notification of the reasons for their arrest and of the identity of the authority that ordered their detention, of the agents carrying it out, and of the persons in charge of the corresponding interrogation."⁵⁴ The Constitution also includes the obligation of informing all detainees of their right to remain silent, to request the presence of an attorney, and to communicate with a family member or any other person they choose; it also states that punishments will be applied to any official who detains a person, either with or without a written order from a judge, and cannot prove having immediately handed that person over to the judge’s authority.55

85. Similarly, the new Constitution states that no person may be kept incommunicado, thus repealing the provision that existed under which a person could be kept incommunicado for a period of 24 hours.56

86. Notwithstanding the major changes guaranteeing detainees’ rights introduced in the new Constitution, the Commission has received reports that in practice, they are still often subjected to torture, mistreatment, and abuse by the agents of the State, particularly officers of the national police, and that these actions go unpunished.57 The Commission has been able to verify these allegations.

87. The Commission will continue to closely monitor all matters relating to the right to humane treatment, particularly as regards the treatment received by detainees and all cases alleging torture or abuse of those persons, in order for the appropriate corrective steps to be taken and for the perpetrators to be duly investigated and punished.

VII.    THE HUMAN RIGHTS SITUATION OF INDIVIDUALS INCARCERATED WITHIN THE PENAL SYSTEM

88. In this chapter the Commission analyzed the prison situation in Ecuador; it gave the State the following recommendations:58

Additional resources should be accorded to the institutions responsible for implementing the social rehabilitation system of Ecuador.

With respect to the physical conditions of detention:

• Every inmate must have access to drinkable water and to sanitary and well maintained facilities adequate for personal hygiene and health at all times.

• Every inmate must have a bed with a mattress and adequate bedding.

• Every inmate must be ensured an adequate daily supply of food of sufficient calories and nutrition.

• Adequate sustenance must not be dependent on the provision of additional food by family members.

• Infliction of especially harsh physical conditions, for example the use of isolation cells without light, ventilation, bedding or toilets, for the purpose of punishment must be eliminated.

• The State must ensure that such medical and psychological care as is needed is readily obtainable, and must ensure that individuals who pose a serious risk of harming themselves and/or others receive the specialized treatment required.

• Measures should be taken to ensure that, as a rule, accused persons are segregated from persons already convicted. Integrated efforts must be taken to ease the critical situation of ^overcrowding, which may rise to the level of inhuman treatment in some cases, and exacerbates tensions within detention facilities. Measures taken by the authorities, including the 1993–94 census of the penitentiaries and the measures taken to enforce the requirement of a written order to admit an inmate to a detention facility, are a start and should be continued.

• Additional measures are required, and must include ensuring that any inmate who has not been tried or sentenced within a reasonable time is released pending the continuation of proceedings, as well as a restructuring of the bail system to make it more proportionate and equitable.

89. The question of prisons is addressed for the first time in the new Constitution; thus, Chapter 4, Title VIII, is called "Of the Prison Regime." This section of the Constitution gathers together the penal provisions contained in subordinate legislation. The innovation lies in the fact that, for the first time, it is stated that "the penal and prison systems shall aim at educating convicts and preparing them for work."59

90. In this regard, the Commission appreciates the 1997 amendment of the Law on Narcotic and Psychotropic Substances, under which drug addicts and users arrested while in possession of narcotics or psychotropic substances intended for their own use are to be considered sick and cannot be held in prisons, but must instead be referred for rehabilitation treatment at a health center.

91. The Commission has received information that although around 800 prisoners against whom no sentence had been handed down have been released under the terms of Temporary Provision 28 of the Constitution and of the legal amendments affecting the penal system, in practice inmates remain overcrowded in the prisons and their basic needs are not met. In addition, reports have been received that convicted prisoners and detainees awaiting trial are not segregated.60

92. The Commission notes with satisfaction that the new Constitution provides for "alternative punishments to imprisonment in accordance with the nature of each case, the identity of the guilty party, and the social reinsertion of convicts." Ecuador has stated that this provision is aimed at achieving true rehabilitation of convicts and reducing prison overcrowding.

93. Information received by the Commission also indicates that prison facilities still do not have enough guards to keep order inside them, and that these same guards often beat, torture, and abuse the inmates.61

94. The inadequate conditions endured by prison inmates and the violence and mistreatment they receive from the officials in charge of them during detention has led to a number of hunger strikes and protests being organized inside different prisons; these have then caused the death of some prisoners, thus leading to an increase in the violence inside penal facilities.

95. The Commission will monitor this situation carefully, and it hopes that the State will adopt effective measures to remedy the current prison situation.

VIII.    THE RIGHT TO PERSONAL LIBERTY

96. In this chapter of the report, the Commission chiefly analyzed the mechanisms used to arrest and detain individuals suspected of committing crimes, the practice of keeping prisoners incommunicado, and issues related to preventive custody.62 In this regard, the Commission issued the following recommendation to the Ecuadorian State:

97. The new Constitution has made major progress with regard to preventive custody, including the provision that "preventive custody shall not exceed six months in trials involving crimes punishable by prison or twelve months in cases involving crimes punishable by reclusion. Should said periods be exceeded, the preventive custody order shall be left void of all effect, under the responsibility of the judge hearing the case."63 For the benefit of individuals in criminal cases kept under arrest for lengthy periods of time and still awaiting judgment as of the enactment of the new Constitution, one of its temporary provision states that "those awaiting trial for crimes punishable by imprisonment who at this time have been detained for more than one year without a sentence being handed down shall be released immediately, without prejudice to the criminal proceedings until such time as they are concluded."64 This rule is to be enforced by the judges presiding over the corresponding criminal proceedings.

98. The State of Ecuador explained that this new constitutional provision was enacted "on account of the serious human rights violation arising from the almost general practice of maintaining preventive custody indefinitely for the duration of the criminal proceedings."65

99. The Commission was informed by the Ecuadorian State that the enforcement of the new bail rules had led to the release of around 800 prisoners from different penal facilities.

100. The State of Ecuador also told the Commission that "due to a lack of awareness, judges are not complying with the provisions of Article 24 as regards preventive custody for crimes punishable by reclusion (including the crime of drug trafficking) in order to ensure that preventive custody does not last for longer than one year and, if it does, for it to be left void of effect."66 In addition, the Commission has also received information from different nongovernmental organizations and other sources stating that many Ecuadorian judges are reluctant to enforce these constitutional provisions.

101. Information given to the Commission by CEDHU indicates that Ecuador’s jails currently hold 8,688 prisoners, of whom 2,052 have been sentenced and 6,636 have been indicted.

102. According to reports received by the Commission, arbitrary arrests still occur in the State of Ecuador. For example, the Ecumenical Human Rights Commission has told the Commission that it recorded 251 cases of arbitrary arrest in 1997, and another 321 in 1998.

103. In connection with this, the Commission has received information indicating that most prison inmates were arrested as a result of police reports and not under court orders.67

104. The Commission will continue to monitor this situation closely and urges the State to take effective measures to ensure that the imposition of preventive custody is an exception and not a general rule.

IX.    THE HUMAN RIGHTS SITUATION OF THE INHABITANTS OF THE INTERIOR OF ECUADOR AFFECTED BY DEVELOPMENT ACTIVITIES

105. This chapter of the Report on the Situation of Human Rights in Ecuador analyzed matters related to oil-industry activities in the Oriente region and their repercussions on water, air, and soil pollution, which could pose a danger to the health of the region’s inhabitants.68 In this regard, the Commission made the following recommendations to the State of Ecuador:

106. Chapter 5 (Of Collective Rights), second section (Of the Environment) of the new Constitution introduces constitutional innovations in this regard. It maintains the collective right in accordance with which the State is to protect the population’s right to live in a healthy and ecologically balanced environment suitable for guaranteeing sustainable development. The innovation in the new Constitution is that the State "shall ensure that this right is not affected and shall guarantee the preservation of nature."69

107. The new Constitution also preserves the doctrine of the previous one regarding elements of the environment deemed to be of public usefulness; the new element added in this respect is the recovery of degraded natural areas.70

108. Article 89 of the Constitution introduces novel ideas in connection with environmental issues, under which the State will take steps to promote the use of environmentally clean technologies and nonpolluting alternative energy sources by the private and public sectors alike and will introduce tax incentives for those who carry out environmentally sound activities.

109. Notwithstanding these constitutional innovations, the Commission has received reports that actions causing environmental deterioration continue to occur in the Ecuadorian interior, affecting the full enjoyment of the rights of different sectors of the population.

110. The Commission will continue to closely monitor the human rights situation of the inhabitants of Ecuador’s interior affected by development activities, and it urges that those activities be carried out within a framework of sustainable development and due respect toward the environment.

X.    HUMAN RIGHTS ISSUES OF SPECIAL RELEVANCE TO THE INDIGENOUS INHABITANTS OF THE COUNTRY

111. This chapter of the report analyzed the living conditions of Ecuador’s indigenous people, with particular emphasis on their right to equality and freedom from discrimination, respect for their religious and cultural beliefs, and the impact on them of development activities.71 In this regard, the Commission offered the following recommendations to the State of Ecuador:

112. The new Constitution dedicates a special section to the country’s indigenous and Afro-Ecuadorian peoples.72 It authorizes indigenous peoples and communities to participate in the use, exploitation, and conservation of the renewable natural resources found on their land. This means that no oil-industry activity or other use of the resources of the subsoil can be carried out without first consulting the owners of the land.73

113. The new Constitution also recognizes that indigenous and Afro-Ecuadorian governments are autonomous, like the municipalities, and that they are responsible for organizing and operating public services and for participating in the design, approval, and implementation of infrastructure and development projects and in the income they generate.74

114. The new Constitution stipulates that "the authorities of the indigenous peoples shall exercise judicial functions, applying their own rules and procedures to resolve internal conflicts in accordance with their customs or customary laws, provided that they do not contravene the Constitution or other legislation."75

115. The Commission recognizes and appreciates the Ecuadorian State’s ratification of International Labour Organisation (ILO) Convention 169 on the collective rights of indigenous peoples.

116. The Commission believes that the creation of the National Indigenous and Black People’s Planning and Development Council is an important step in promoting policies favoring indigenous and Afro-Ecuadorian peoples.

117. On 29 January 1999, the President of the Republic signed two executive decrees for the protection, in perpetuity, of the lands of the Tagaeri people (723,200 hectares), along with another for the protection of the Imuya zone in Cuyabeno (435,000 hectares), one of the regions of the world with the greatest biodiversity.

118. This notwithstanding, the Commission has received reports that indigenous peoples continue to suffer discrimination, that their land claims have not yet been settled, and that they are still affected by development activities, chiefly through pollution on cultivated land. It has also been reported that indigenous peoples continue to live in conditions of extreme poverty, that indigenous communities’ cultural expressions of are still not respected in full, and that those communities are not given due consideration when decisions that could either directly or indirectly affect their interests are being taken.

119. The Commission will continue to observe the situation of Ecuador’s indigenous peoples; it urges effective recognition and respect for their rights and for indigenous communities to be involved and consulted in the decisions taken by different sectors of society.

XI.    THE HUMAN RIGHTS OF AFRO-ECUADORIANS

120. This chapter of the report analyzed the situation of Afro-Ecuadorian people, who account for between five and ten percent of the population.76 In connection with them, the Commission offered the State of Ecuador the following recommendations:

121. As stated above, the new Constitution dedicated a special section to "the indigenous and black or Afro-Ecuadorian peoples." With regard to them, it states that "the black or Afro-Ecuadorian people form a part of the single, indivisible Ecuadorian State."77

122. The new Constitution also states that Afro-Ecuadorians are to be given and guaranteed all the rights of indigenous peoples referred to in Article 84 of the Constitution in all matters applicable to them.

123. The Commission will continue to monitor the situation of Afro-Ecuadorians in the country, and it urges the adoption of measures to ensure that their rights are duly recognized.

XII.    THE HUMAN RIGHTS OF ECUADORIAN WOMEN

124. This chapter of the report analyzed the situation of Ecuadorian women vis-à-vis the law and society.78 In regard to them, the Commission presented the Ecuadorian State with the following recommendations:

125. The Commission notes that the new Constitution enshrines the "equality of the rights and opportunities of men and women in access to productive resources and in making economic decisions for the administration of the marital partnership and its property."

126. The new Constitution also reflects major progress in women’s rights as regards the recognition of sexual and reproductive rights, stipulating that the State shall provide a culture favorable to health and life, with emphasis on the production of food for mothers and children and on the sexual and reproductive health of women.

127. Similarly, the Commission notes the inclusion of a new constitutional provision stating that efforts must be made to "promote the incorporation of women into productive employment, with equal conditions and opportunities, and guaranteeing them the same pay for work of the same value."79 In addition, for the first time ever, Ecuador’s internal laws contain a provision stating that unpaid domestic work shall be recognized as productive labor with respect to the partner or cohabitee who is in a situation of economic disadvantage.

128. The Commission also notes that the new Constitution enshrines full equality between formal marriages and common-law unions by stating that a family "shall be created by de jure or de facto bonds and shall be based on the equality of rights and opportunities of its members."80

129. The new Constitution also expressly provides that the State, through specialized agencies (the National Council of Women, created in 1997), shall formulate and implement policies to ensure equal opportunities for women and men and shall incorporate gender-related issues in its plans and programs.81

130. Another important achievement under the new Constitution is the appointment of public defenders to represent women and children who have been abandoned or have suffered sexual or domestic violence and who lack the economic resources to hire counsel.

131. Sexual harassment was not considered a crime in Ecuador until 1998, when the National Congress amended Article 7 of the Criminal Code and expressly penalized it.82

132. Irrespective of the progress in women’s legislation in the State of Ecuador, in practice women still face discrimination, unequal opportunities, and violence.83

133. The Commission will continue to monitor the important question of the human rights of Ecuadorian women and will report on it at a later date.

XIII.    FRIENDLY SETTLEMENT AGREEMENTS

134. The Commission would like to congratulate the Ecuadorian State for its noteworthy recent attitude regarding the cases alleging violations of the human rights enshrined in the American Convention and other human rights treaties that the Commission is currently processing. The State of Ecuador has at all times shown willingness to cooperate in reaching friendly settlements in those matters and to comply with the recommendations issued by the Commission in its Article 51 reports.

135. In the cases of Ms. Consuelo Benavides (which was pending judgment by the Inter-American Court of Human Rights), the brothers Carlos and Pedro Andrés Restrepo Arismendy (Case 11.868), Manuel Inocencio Lalvay Guaman (Case 11.466), Carlos Juela Molina (Case 11.584), and Juan Climaco Cuellar and Others (the Putumayo Case, No. 11.472), friendly settlement agreements were reached pursuant to the terms of American Convention on Human Rights and the Commission’s Regulations. In these cases, the State of Ecuador accepted its international responsibility for the situations caused by the actions of its agents that affected these persons. Moreover, Ecuador has paid, or has agreed to pay, monetary indemnifications to make amends to the victims of these cases or, alternatively, to their assignees. The State has also agreed to investigate the incidents in question and to punish the guilty.

136. The Ecuadorian State also reached an agreement with the petitioners in the Stalin Bolaños Case regarding compliance with the recommendations issued by the Commission in its Report 10/95, published in 1995. Under this agreement, Ecuador recognized its international responsibility for the situation resulting from the actions of its agents that affected Mr. Stalin Bolaños. The State also agreed to pay Mr. Bolaños’s assignees financial compensation in order to make amends and agreed to investigate the incident and to punish the guilty.

137. At a hearing held at Commission headquarters on 2 March 1999, the State of Ecuador, in accordance with its desire to cooperate with the inter-American human rights system, expressed its willingness to reach friendly settlements in around 15 other cases pending before the Commission. In the same spirit, it reported that in the case of the Restrepo Arismendy brothers, it had a budget of USD $100,000 for conducting a search for their bodies in Yambo Lagoon, where they are believed to be.

138. The Commission will continue to monitor compliance with the friendly settlements and those agreements related to compliance with its recommendations; it also urges the Ecuadorian State to continue with this outstanding policy of cooperation with the inter-American human rights system, which is both a noteworthy effort in itself and an important example at the continental level.

XIV.    PEACE AGREEMENT BETWEEN ECUADOR AND PERU

139. After lengthy negotiations, on 26 October 1998 the States of Ecuador and Peru signed the Brasilia Declaration within the legal framework of the 1942 Protocol of Rio de Janeiro and its complementary instruments. Thus, with the oversight of the guarantor nations, they put an end to decades of tension and uncertainty on demarcation issues at three points along their common border over which, in the past, armed conflicts had arisen.

140. The Commission congratulates the two States for the agreement they reached, which promises to open up a future of peace and cooperation for both nations and allow them to concentrate their efforts on struggling to ensure respect for human rights.

XV.    GENERAL CONCLUSION

141. Since the publication of the Report on the Situation of Human Rights in Ecuador in 1997, the Commission has been able to note that Ecuador has embarked on a new phase of institutionalization following the enactment of a new Constitution, which promises to provide the legal framework needed to guarantee the protection and full currency of human rights. In addition, the election that appointed Jamil Mahuad to serve as the new President of the Republic was also held.

142. One important development was the border agreement between Ecuador and Peru, intended to resolve once and for all territorial disputes that lasted for decades and gave rise to moments of intense tension in the region. This agreement offers the prospect of new and better conditions for the currency of human rights.

143. The Commission also notes the drawing up of the National Human Rights Plan, which aims at becoming an effective tool for promoting and protecting human rights in Ecuador.

144. Similarly, the Commission would like to note and express its satisfaction with the Ecuadorian Government’s constant willingness to cooperate with inter-American human rights promotion and protection mechanisms, wherein by means of friendly settlements it has embarked on a policy of recognizing its errors and, consequently, its responsibility as a State in human rights violations and, at the same time, it has committed itself to prosecuting the perpetrators of those violations and making amends to the victims or their families.

145. As regards the socioeconomic context, there have been no major positive changes; instead, the economic and financial crisis has grown worse, keeping levels of poverty high, creating great social discontent, and, consequently, hindering the progressive development of economic, social, and cultural rights. In this regard, the Commission will follow with interest the evolution of the socioeconomic situation in Ecuador and the measures adopted by the State in connection with it.

146. In spite of the efforts made, the administration of justice is still inefficient and slow in safeguarding respect for human rights and their protection. This inefficiency has created a situation where, inter alia, 68 percent of the inmates in the country’s prisons have not been sentenced. Moreover, the prison system is still characterized by overcrowding and the absence of minimal standards.

147. In addition, complaints and cases involving human rights violations committed by agents of the State continue, particularly as regards officers of the national police. Furthermore, the Commission has no information to indicate that justice is being done in these cases. The Commission therefore repeats its concern about the grave phenomenon of impunity in human rights crimes, and it once again urges the Ecuadorian State to continue adopting effective measures to investigate and punish the perpetrators of those violations.

148. As regards the human rights of Ecuadorian women, major progress has been made in the field of legal protection, but in practice violence against women has not decreased and their incorporation into the country’s life on an equal footing is still minimal.

149. With regard to indigenous and Afro-Ecuadorian people, there has been progress with the recognition of their rights in law. In practice, however, they continue to live in conditions of extreme poverty and discrimination. The Commission hopes that steps continue to be taken to truly enforce the protection and recognition of the rights of these important segments of the Ecuadorian population.

150. Finally, in assessing the progress made by Ecuador since the publication of the Report on the Situation of Human Rights in Ecuador in 1997, the Commission encourages efforts aimed at overcoming the situations that still hinder the full currency of human rights in the State of Ecuador.

1 The report refers to some incidents that occurred in the first quarter of 1997 and to others that occurred prior to 1992.

2 On 2 November 1998, the Commission sent a note to the Ecuadorian State asking it to report on the steps taken to comply with the recommendations made by the Commission in its 1997 Report on the Situation of Human Rights in Ecuador.

3 This hearing took place at the headquarters of the Organization of American States on 2 March 1999. The Ecumenical Human Rights Commission (CEDHU) is a prestigious Ecuadorian nongovernmental organization, dedicated to protecting and promoting human rights in the country. Additional information was also received from Amnesty International.

4 See "Report on the Situation of Human Rights in Ecuador," Chapter II, pp. 5-18.

5 See Articles 16 to 97 of the Constitution.

6 See Article 19 of the Constitution.

7 See Article 17 of the Constitution.

8 See Article 274 of the Constitution.

9 See Article 274 of the Constitution. The old Constitution empowered only the Supreme Court of Justice and the final appeal courts to rule on the inapplicability of legal provisions that contravened constitutional precepts. The new Constitution grants this power to "any judge or tribunal," and with regard to provisions contravening both "international treaties or conventions" as well as the Constitution itself.

10 See Article 276 of the Constitution.

11 Article 95 of the Constitution stipulates that:

Any person, acting on his own behalf or as the legitimate representative of a group, may bring amparo action before the judicial body appointed by law. By means of such action, which shall be given preference and processed summarily, the adoption of urgent measures shall be imposed in order to immediately halt, prevent, or remedy the consequences of an illegal action or failure to act by a public authority that violates or could violate any right enshrined in the Constitution or in an international treaty or agreement at that time in force and that imminently threatens to cause serious harm. The action may also be brought if the action or failure to act was committed by persons providing public services or acting under the instructions or concession of a public authority.

Judicial decisions adopted at trial shall not be subject to amparo suits.

Amparo action may also be brought against private citizens, when their behavior gravely and directly affects a collective or community interest or a diffuse right.

In amparo suits, no judges may be disqualified from hearing the proceedings, and all days shall be considered working days.

The judge shall immediately summon the parties in order for them to be heard at a public hearing within the following 24 hours and, at the same hearing, if the grounds exist, shall order the suspension of any act that could translate into the violation of a right.

Within the following 48 hours, the judge shall hand down his resolution; said resolution shall be enforced immediately, without prejudice to its subsequent revocation or upholding on appeal before the Constitutional Tribunal.

The law shall determine the punishments applicable to authorities or persons who fail to abide by the judges’ resolutions and to judges and magistrates who violate the amparo procedure, irrespective of any legal action arising therefrom. To ensure compliance with the amparo, the judge may adopt such measures as he deems appropriate, including requesting assistance from the security forces.

12 See Article 276(3) of the Constitution.

13 See Article 94 of the Constitution.

14 See Article 93 of the Constitution.

15 Article 93(3) of the Constitution states that: "should the mayor fail to process the remedy, he shall be subject to civil and criminal liability in accordance with the law."

16 See Article 276(3) of the Constitution.

17 See Article 96 of the Constitution.

18 See Articles 206 and 207 of the Constitution.

19 See Temporary Provision 26 of the Constitution.

20 See Articles 195 to 205 of the Constitution.

21 See Articles 47 to 54 of the Constitution.

22 See El Comercio newspaper of 10 March 1999.

23 Article 180 of the Constitution reads as follows: "The President of the Republic shall declare a state of emergency in all or part of the nation’s territory in the event of imminent external aggression, international war, serious internal disturbances, or natural disasters. The state of emergency may affect society’s activities either in whole or in part."

24 See Executive Decree No. 483, RO/Sup. 105 of 11 January 1999.

25 Under Ecuadorian law, failing to carry papers does not constitute a crime.

26 See Article 27 of the American Convention on Human Rights.

27 The suspension of certain rights and guarantees by States Parties under exceptional circumstances in accordance with Article 15 of the European Convention is similar to that of Article 27 of the American Convention on Human Rights; in this regard, see: Greece vs. United Kingdom, AppI. 176/56, Yearbook II (1958-1959); Ireland vs. United Kingdom, Judgement of 18 January 1978.

28 See: IACHR, "Report on the Situation of Human Rights in Ecuador," p. 16; IACHR, "Report on the Situation of Human Rights in Colombia," OEA/Ser.L/V/ii.84, Doc. 39, 14 October 1999, pp. 61-62.

29 Under Article 27(2), the other rights enshrined in the Convention that cannot under any circumstance be suspended are Article 3 (right to juridical personality), Article 4 (right to life), Article 5 (right to humane treatment), Article 6 (prohibition of slavery and servitude), Article 9 (freedom from ex post facto laws), Article 12 (freedom of conscience and religion), Article 17 (protection of the family), Article 18 (right to a name), Article 19 (rights of the child), Article 20 (right of nationality), and Article 23 (political rights).

30 See Inter-American Court of Human Rights, "Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1), and 7(6) of the American Convention on Human Rights)," Advisory Opinion OC-8/87 of 30 January 1987, Series A, No. 8.

31 Ibid.

32 Article 1 of Executive Decree 1527 reads as follows: "To establish a National Human Rights Plan for Ecuador that will avert, eradicate, and punish human rights violations in the country in order to institutionalize, through state agencies and civil society, priority programs for: (a) Identifying the causes preventing full exercise of those rights; executing specific legal, political, administrative, economic, social, cultural, and environmental proposals that will make compliance with the plan possible; (b) Promoting and disseminating through all channels the principles of human rights and their universality, comprehensiveness, and interdependence." Article 2 further stipulates: "This Plan is universal, obligatory, and comprehensive. The public authorities and civil society shall be responsible for its observance and implementation."

33 Article 36 of the Plan reads as follows: "The state shall prepare, in conjunction with civil society, an Operating Plan, in accordance with the guidelines set forth in the National Plan which is attached to and constitutes an integral part of this Executive Decree, within a period of 60 days following its publication in the Official Register."

34 On 26–28 March 1998, a National Seminar for Preparing and Approving the National Human Rights Plan was held in Quito. It was attended by more than 120 delegates from State agencies, civil society, and international organizations.

35 See Chapter II, Section B, "Report on the Situation of Human Rights in Ecuador," pp. 19-28.

36 See UNDP Human Development Reports, 1996, 1997, and 1998.

37 Ibid.

38 Ibid. These figures are in US dollars.

39 Ibid.

40 Andean Commission of Jurists, "A Paso Lento," p. 58.

41 Ibid., p. 62.

42 See Chapter III, "Report on the Situation of Human Rights in Ecuador," pp. 29-36.

43 See Article 24(10) of the Constitution.

44 See Article 24(12) of the Constitution.

45 See Article 24(13) of the Constitution.

46 Article 23 of the Constitution reads as follows: "Without prejudice to the rights set forth in this Constitution and in the international instruments in force, the State shall recognize and ensure the following in respect of persons: . . . (26) juridical security; (27) the right to due process and to delay-free justice."

47 See El Universo newspaper of 9 October 1998.

48 In a survey into perceptions of the Ecuadorian justice system, 28 percent of the respondents stated they had no confidence at all in it, 39 percent said they had little confidence in it, and 16 percent said they had some confidence in it.

49 See Chapter IV, "Report on the Situation of Human Rights in Ecuador," pp. 37-47.

50 Article 23(2)(3) of the Constitution expressly states that: "Legal action and punishment for genocide, torture, forced disappearances of persons, kidnapping, and homicide for reasons of politics and beliefs shall not be subject to statutes of limitations. Neither pardons nor amnesties shall apply to those crimes. In such cases, obedience to orders from above shall not extinguish liability."

51 See Article 23(2)(3).

52 Ecuador ratified this instrument at the OAS General Secretariat on 15 April 1998.

53 See Chapter V, "Report on the Situation of Human Rights in Ecuador," pp. 45-56.

54 See Article 24(4).

55 See Article 24(4)(2).

56 See Article 24(6)

57 In 1998 CEDHU reported having received some 41 credible complaints alleging torture by agents of the State.

58 See Chapter VI, "Report on the Situation of Human Rights in Ecuador," pp. 57-70.

59 See Article 208 of the Constitution.

60 For example, a study of the Quito Provisional Center indicated that it had a real capacity of 112 inmates, while it actually housed an average of 450. It also stated that the installed plumbing was "blocked, and so the inmates use pallets and bags for their physiological needs," and that many prisoners had no information on their legal situations. High levels of drug and alcohol consumption in the facility were also reported. See: "Entre Sombras y Silencios," Regional Foundation for Human Rights Advice.

61 The study "Sombras y Silencio" reports that in the first six months of 1997, 148 cases of torture and 215 cases of mistreatment during arrest were recorded at the Quito Provincial Center. Similarly, Prison No. 1 in Quito has a capacity for 704 inmates and currently houses about 1026.

62 See Chapter VII, "Report on the Situation of Human Rights in Ecuador," pp. 71-80.

63 See Article 24(8) of the Constitution.

64 See Temporary Provision 28, which also states that "enforcement of this provision shall be the responsibility of the judges hearing the corresponding criminal cases," and that "the National Council of the Judicature shall punish judges who act negligently within the corresponding trials."

65 See written submission by the State of Ecuador, presented to the Inter-American Commission on Human Rights during the hearing on the human rights situation in Ecuador held at OAS headquarters on 2 March 1999.

66 Written note of 2 March submitted by the Ecuadorian State at the follow-up hearing on the report on Ecuador.

67 A study conducted inside the Provisional Detention Center in Quito showed that 84 percent of the inmates were being detained under police reports and only 15.4 percent as a result of court orders. See: "Entre Sombras y Silencios."

68 See Chapter VIII, "Report on the Situation of Human Rights in Ecuador," pp. 81-102.

69 See Articles 86 to 91 of the Constitution.

70 Ibid.

71 See Chapter IX, "Report on the Situation of Human Rights in Ecuador," pp. 103-124.

72 See Articles 83 and 84 of the Constitution.

74 Ibid.

75 See Article 191 of the Constitution.

76 See Chapter X, "Report on the Situation of Human Rights in Ecuador," pp. 125-128.

77 See Article 84 of the Constitution.

78 See Chapter XI, "Report on the Situation of Human Rights in Ecuador," pp. 129-136.

79 See Article 36(1) of the Constitution.

80 See Article 37(1) of the Constitution.

81 See Article 41 of the Constitution.

82 The rewritten Article 7 of the Criminal Code stipulates that "anyone who requests favors of a sexual nature for himself or another and in so doing makes use of a situation of professional, academic, or similar superiority with the explicit or tacit intent of causing the victim harm shall be punished as a perpetrator of sexual harassment with a prison term of between six months and two years."