ECUADOR

          I.         INTRODUCTION 

          1.       The Inter-American Commission on Human Rights (hereinafter, the “Commission”), within the context of its competence established in the American Convention on Human Rights (hereinafter, “the Convention” or “the American Convention”) and other pertinent instruments, has continued to observe with interest developments in the human rights situation in Ecuador.  In 1997, the Commission issued its first report on the human rights situation in Ecuador, covering the period from the assumption of office of President Durán Ballén, in mid-1992, to September 1996.[1]  In its 1998 Annual Report, the Commission included a follow-up report on the human rights situation in Ecuador, in order to assess compliance with recommendations made earlier.[2] 

          2.       The inclusion of Ecuador in this section of the Annual Report is in keeping with two criteria previously established by the Commission for the inclusion of countries in this chapter.  First, the criterion stipulating that States where “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, state of siege, suspension of guarantees, exceptional security measures, and the like.”[3]  Second, 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.”[4] 

          3.       This report focuses on the situation in Ecuador in late 1999 and early 2000, in particular on two events: the mobilization of indigenous organizations that was aimed at the removal of the three branches of the government (the Executive, Legislature, and the Judiciary), and the events that occurred in January 2000, which culminated in the departure of President Jamil Mahuad and his replacement with Vice President Gustavo Noboa.  Before analyzing these two events, the Commission would like to comment on the socio-economic context in which they took place. 

          II.        CONTEXT 

            A.        Deterioration of the socio-economic situation in Ecuador 

4.       In the follow-up report on the human rights situation in Ecuador, the Commission indicated that “Ecuador’s low socioeconomic figures have (…) created intense discontent among the population, which has translated into strikes and social mobilizations...”[5]  In this report, the Commission added that “it took note of the existence of a group of economic measures, presented by the President of the Republic to the Congress, that were the object of protests and social movements.…”[6]  This situation of discontent worsened in late 1999 and early 2000.  The serious economic crisis being experienced in Ecuador is reflected in the following indicators: inflation rose to 60.7% in 1999, the highest in the Hemisphere, and in January 2000, it climbed to 78.1%, the highest monthly inflation rate in 32 years.  Gross domestic product dropped by seven points in 1999.  During that year, the currency fell by 67%, the recession rate stood at 7.5%, and its external debt exceeded US$13 million.   The rate of unemployment rose to 17% and 62.5% of its inhabitants were living below the poverty line.[7]         

5.       The economy of Ecuador, which stands at approximately US$18 million, is largely dependent on foreign exchange earnings derived from oil, banana, shrimp, and flower exports.  On March 8, 1999, the Government closed 39 commercial banks in the country over the course of one week, due to the worsening financial crisis.  Fearing a collapse of the banking system, persons who held bank deposits tried to withdraw their money, which prompted the Government’s decision to close them.  On March 9, President Mahuad declared a 60-day state of emergency and announced an austerity program.  Taxi drivers throughout the country blocked roads, crippling transportation and commerce, in order to protest the nearly 200% hike in the price of fuel announced by the President as part of his austerity plan.[8]  The crisis, considered the worst since the world depression of 1929, had its roots in the damage caused by El Niño, which was estimated at US$2.5 million, the drop in oil prices, and an inflation rate of 43%, the highest in Latin America in 1998.  In addition, Ecuador’s big neighbor, Brazil, was plagued with serious economic problems, which had a very negative impact on the Ecuadorian economy.[9] 

          6.       The austerity plan, announced on March 9, 1999, led to the taxi strike mentioned above.[10]  Bus drivers joined with taxi drivers, paralyzing the public transportation system.  Antonio Vargas, leader of the Confederation of Indigenous Nationalities, (CONAIE),[11] called for a popular uprising to reject the austerity plan.  As a result, the President lifted the state of emergency and withdrew the increase in gas prices.  However, the Congress, with the support of the opposition, approved the austerity plan and presidential decree, freezing bank accounts for a period of up to one year.[12] 

          7.       The main problem in 1999 was the collapse of the banking sector.  The biggest banks are in Guayaquil and the Government made various attempts to bail them out.  The Government spent almost US$1 billion trying to bail out banks, an amount equivalent to the total reserves of the country.  The special treatment accorded by the Government to the banking sector generated a great deal of criticism from indigenous organizations and farmers.  In September 1999, Ecuador became the first country in the Hemisphere to default on the interest payments of its foreign debt under the provisions of the Brady plan.   

          8.       On January 9, 2000, President Jamil Mahuad proposed the dollarization of the economy as a way of halting the country’s serious economic crisis, and, in particular, the decline in the sucre, which had fallen by 20% in one week.  Over the course of one year, the value of the dollar rose from 7,000 to 29,000 sucres.  Ecuadorians protested the sudden loss of their purchasing power, speculation, and the escalation in the cost of living caused by the new parity, corruption in the banking sector, and the series of failed government measures.  The Mahuad Plan made provisions for the use of the dollar for all commercial transactions, as well as the fixing of salaries and prices in U.S. currency.  The President of the Central Bank resigned in protest against of the dollarization policy. 

          9.       On January 5, 2000, President Mahuad again declared a country-wide state of emergency. 

            B.        The indigenous uprising 

          10.     The Commission quoted correspondence from the Government on March 19, 1997, in its report on the Human Rights Situation in Ecuador, published in 1997, which indicated “that, at present, poverty is a serious obstacle preventing Ecuadorians from enjoying the economic, social, and cultural rights recognized in several international human rights instruments.”[13]  This situation worsened in 1999.  Four million indigenous Ecuadorians of a total population of 12.5 million survive on a salary of US$45 per month, whereas the basket of goods for a family of four costs close to US$200.  The minimum living wage is the equivalent of four dollars per month.  In light of the serious economic crisis, several social organizations, together with the indigenous movement, formed what was called the National Parliament of Ecuadorian People, in a bid to effect political, economic, and ethical change in the country.[14] 

          11.     CONAIE and the Coordinator of Social Movements (CMS) called on indigenous peoples and farmers to go to Quito to stage demonstrations in order to achieve a general strike aimed at bringing down the Government.  A peaceful takeover of Quito was scheduled to take place on Saturday, January 15, 2000.  The President of CONAIE, Antonio Vargas, vowed that the indigenous people’s uprising would paralyze the country.  “Everyone will come out to take over the cities and streets,” stated Vargas.[15]  Thousands of indigenous peoples set off for Quito using the streets connecting the cantons and provinces.  For example, almost 4,000 indigenous peoples from 220 communities in Tungurahua[16] came out on the night of January 13, 2000 to take over the capital.  According to a leader of the Indigenous Tungurahua Movement (MIT), they also participated in protest activities organized by CONAIE, whose leaders ordered the march to Quito.[17] 

          12.     The protest coincided with Mahuad’s address to the Nation in Congress, in which he analyzed his management, underscored the advantages of dollarization, and highlighted the most important projects carried out during his term.[18] 

          13.     The protestors were seeking not only the resignation of the President, but also the dissolution of Congress and the Judiciary, which they considered to be responsible for the economic crisis.  Furthermore, they were opposed to the presidential plan to dollarize the national economy as a way of lifting the country out of the crisis.  As far as the indigenous peoples were concerned, President Mahuad’s address to Congress was riddled with deception.  They further maintained that dollarization would not benefit the people: “It is not true that this measure (dollarization) is aimed at jumpstarting the productive apparatus. On the contrary, it is a measure that will benefit speculative capital.”[19]

          14.     CONAIE issued a call “together with other social organizations in the country to all solidarity and human rights organizations … to take steps aimed at curbing the levels of repression, searches, human rights violations, and a system of discrimination and racial violence being applied by officials and the law and order forces of Ecuador on the instructions of the Government of Dr. Jamil Mahuad.”[20]  

          15.     According to the National Police, in the days preceding January 15, 2000, the date on which the event was scheduled, 152 citizens were arrested in Quito during demonstrations held on Thursday, Friday, and Tuesday (January 6, 7, and 11 respectively).[21]  On Saturday 15, the protests took place but in smaller numbers than anticipated. However, there were signs that the situation would worsen.  As a result of the declaration of a state of emergency, President Mahuad called for the mobilization of approximately 30,000 police and military officers throughout the country, as a precautionary measure.  The Commission has not received any information, other than newspaper reports, regarding the status of the 152 persons who were reported to be detained.  The Ecuadorian press reported that, of the 152 persons detained by the National Police, 83 were minors and 69 were adults.  Within a 48-hour period, most of the minors were released, although 17 remained in detention for allegedly carrying arms and ammunition during student protests.[22] 

          16.     On Monday, January 17, oil workers from Ecuador started a strike against the Government.  Oil is the main revenue earner of the country and workers in this industry were calling for the resignation of President Mahuad.  They were also calling for better conditions at Petroecuador, a company that provides almost 80% of crude production in the country.[23] 

17.     The movement of indigenous peoples and farmers stepped up its protest in the days that followed. The effects of blocking the access roads to Quito began to be felt, particularly the shortage of domestic products, such as gas.  The security forces tried to halt the movement by blocking the access of indigenous people to the city.  It was reported that in anticipation of disorderly conduct and road blocks and of the possible advance of indigenous people to Quito, the Armed Forces, acting under the authority conferred by the state of emergency, proceeded to occupy the streets.  The military officers were controlling buses and cars on the Pan-American roadway that crosses the most densely populated indigenous zone of Ecuador.  The official justification for these measures was weapons control.  The Ecumenical Human Rights Commission (CEDHU), a non-governmental organization, reported: “since Monday January 17, military officers have proceeded to detain large numbers of indigenous peoples who where on their way to Quito and at other times forced them off buses so that they could not get to the capital.  However, some 15,000 indigenous peoples reached our city, and held a huge march on January 19 on several streets in the downtown area.”[24] 

          18.     After weeks of street protests, on January 21, 2000 thousands of indigenous people and farmers took over the headquarters of the Peruvian Congress and the Supreme Court Building.  The CEDHU reported that it could see that, along with the barbed wire covered with newspaper, antipersonnel mines had been placed at approximately two feet intervals at the entrance doors of the National Congress.  The mines were interconnected by clearly visible wires. 

          19.     The press reported that the protests of the indigenous peoples who were calling for the resignation of President Mahuad had led to violent acts and were paralyzing traffic in downtown Quito.[25]  Early on the morning of January 21, a bomb exploded in front of the headquarters of the Bank Examiner of Ecuador in Quito.  No one was injured, but it destroyed the windows of the building, according to National Police reports.[26]  Furthermore, it was stated that: 

Approximately 20 indigenous persons, armed with sticks, pieces of  iron, and stones were staging a protest along 10 de Agosto street, about 100 meters from the Central Bank, burning tires and blocking the flow of traffic.  The press spokesman for the Police stated that the indigenous people “proceeded to engage in acts of vandalism” in the southern part of Quito, and burned a school bus, although no one was injured.  The violence seemed to be fueled by the street protests of the indigenous people, who, since the day before, had closed the headquarters of Congress, the Supreme Court, and the Office of the State Comptroller General, not allowing anyone to leave the area. Even Red Cross intervention did not permit Supreme Court justices or employees to leave the area of conflict.[27] 

20.     At 9:30 a.m. on the morning of January 21, 2000, Antonio Vargas ordered his followers to advance towards the legislative building.  At that time, Colonel Lucio Gutiérrez, one of the first of his group, joined the indigenous movement and got off a bus of the School of Special Forces of the Army, along with 75 officers in the vicinity of the Congress.[28]  General Carlos Moncayo ordered that his troops be cleared from the area.  The indigenous peoples and farmers took over the assembly hall of Congress and at 10:40 a.m., the “insurgents” issued their first press release, removing the government of Mahuad and appointing a “National Salvation Junta” [Junta Nacional de Salvación]  to replace him, composed of Antonio Vargas, President of CONAIE, Colonel Lucio Gutiérrez, and a former President of the Supreme Court, Carlos Solórzano.  By midday Gutiérrez had been replaced by Colonel Fausto Cobo, Commander of the Military Academy.  Around midnight, the latter was replaced by General Carlos Mendoza.  

21.     On Friday, January 21, the OAS Permanent Council issued Resolution 763²⁹,  by means of which it “strongly condemned the attack against the legitimately constituted democratic order,” while backing the constitutional Government of President Jamil Mahuad.  It also expressed its “concern at the grave political situation in Ecuador” and the possible “serious consequences that could stem from any attempt to destabilize the democratic system in that country.”[29]  Furthermore, the Council decided to instruct the OAS Secretary General to remain in constant contact with the Government of Ecuador and to inform the Permanent Council of developments in the situation in the country. 

22.     On the morning of January 22, 2000, General Mendoza abruptly announced that he was dissolving the junta that he headed, thereby ending the fleeting reign of the junta resulting from the first coup d’etat in a decade against an elected President in Latin America.  General Mendoza announced that he was taking this action to prevent the isolation of Ecuador by the international community.  The “permanent” junta lasted a mere three hours.  The international community threatened to impose an economic and political embargo on the new regime.  As a result, General Carlos Mendoza Poveda, the former chief of the Joint Command of the Armed Forces, resigned from his military position and gave up the triumvirate in favor of a legal and “constitutional” solution to the crisis and in order to facilitate succession by former Vice President Gustavo Noboa Bejarano.  “It was a difficult decision and I had to take a position in order to avoid the disintegration of the military command structure and bloodshed,” Mendoza stated.[30] 

23.     When the movement of indigenous peoples, farmers, and officials tried to enter the Congress, General Carlos Moncayo, who was responsible for security in the building, ordered his troops to leave the location and informed the President that he could not guarantee the security of the Presidential Palace.  General Moncayo justified his actions by stating that “we let them leave because we did not want a confrontation with the people.”[31]  The Constitution of Ecuador is unequivocal in terms of the duty of the Armed Forces to protect the President, the Chief of State, and the Government.  In this regard, Article 183 of the Ecuadorian Constitution states that the “fundamental mission” of the Armed Forces is “the preservation of national sovereignty, the defense of the integrity and independence of the State, and the preservation of its legal system.”  Moreover, Article 184 states that “law and order forces owe their loyalty to the State.  The President of the Republic shall be their highest authority….” 

24.     After the Armed Forces announced that they could not guarantee his protection, former President Mahuad left the presidential palace under military escort and went to an air force base where two planes were made available to him so that he could leave the country.  He escaped and sought refuge at the Chilean Embassy and then at a private home.  On the morning of January 23, 2000, former President Mahuad condemned the coup d’etat on television.  Mahuad congratulated the new President and stated that although he had been deposed, he would never try to prevent the Vice President from assuming power.  The assumption of office by Mr. Noboa was formally ratified by the Ecuadorian Congress in Guayaquil on January 22.[32]  The Congress used the fact that Mahuad had sought refuge on foreign territory (the Chilean Embassy) as a basis for his “abandonment” of his presidential duties and for appointing his successor. 

25.     When the social protests began that culminated with the departure of President Jamil Mahuad, both the National Police and Armed Forces observed the institutional order.  They were the ones responsible for preserving safety and complying with the provisions of the decree declaring the state of emergency.  At the time of takeover of the Congress, only a small group of military officers had joined the social movement. 

26.     Initially, the leadership of the Armed Forces maintained its support for the Government of Mahuad.  This is what was stated by General Carlos Mendoza, Chief of the Joint Command of the Armed Forces, and by the Minister of Defense in the past week.[33]  However, after the takeover of Congress, General Mendoza called for the resignation of President Mahuad, “in order to avoid social upheaval.”[34]  “Our responsibility is to maintain law and order,”[35] Mendoza stated.  In addition to Gutiérrez, other officers such as Colonel Fausto Cobo, were joining the revolt.  When the high command members of the Armed Forces saw that support was growing for the rebellion among the rank and file, they changed their policy and called for the renunciation of the President.  One military officer, who supported the rebelion announced on television that his salary had fallen from US$1,100 to US$300 per month since Mr. Mahuad came to office, thereby advancing a financial reason for the military support.  As was already mentioned, the Constitution of Ecuador states that the President is the highest authority of the law and order forces.  In addition, Article 185 states that law and order forces shall be “obedient and not deliberative.”  It is clear that the Minister of Defense is not vested with the authority, under the Constitution, to call for the resignation of the President; rather, it is his duty to use the Armed Forces to preserve law and order and protect the President. According to Article 167 of the Constitution, the mandate of the President may end prematurely because of “death, resignation accepted by the National Congress, physical or mental incapacity that prevents him from exercising his duties, which is legally corroborated and declared by the National Congress, dismissal following political prosecution, or abandonment of office, declared by the National Congress.”

27.     On January 22, the Ecuadorian Ambassador to the OAS forwarded a communication to the Chairman of the Permanent Council explaining the situation in that country.  He also forwarded a copy of the address to the nation by former Vice President Noboa, who had just been inaugurated as the eighty-fourth President in the history of Ecuador and the sixth in the past four years, on the occasion of his assumption of office.  In that message, the new President, after stating that in assuming his position he had received the support of the Armed Forces and National Police, outlined the general policies of his new Government.  He referred, among other things, to the immediate normalization of the activities of citizens, processes of State modernization, efforts to combat corruption, and efforts to guarantee the swift and dynamic administration of justice. 

28.     The new President underscored the attitude of General Mendoza “who, through his noble and selfless attitude, had made it possible to consolidate democracy.”  President Noboa made it clear that the state of emergency would remain in effect, which will be discussed below. 

29.     On Wednesday, January 26, 2000, after the overthrow of Mahuad and the assumption of office by Noboa, the OAS Permanent Council issued another resolution, No. 764³⁶.  In it, the Permanent Council reiterated “categorically its rejection of any action to disrupt the democratic and constitutional order of Ecuador or any Member State of the Organization..”  Furthermore, it condemned “strongly the events that jeopardized the legitimately constituted democratic order in Ecuador,” and which had led to the departure of the President from office.  It indicated further that the constitutional responsibility of the Armed Forces and Security is to “defend and preserve democracy and the constitutional authorities.”  Lastly, the Council decided “to support the Government of President Gustavo Noboa Bejarano…”[36] 

30.     In the days that followed, Colonel Lucio Gutiérrez was detained along with 11 officers, as a result of the military uprising.  On January 27, 2000, the Chief of the Armed Forces, Telmo Sandoval, announced that four colonels and scores of officers had been arrested as a result of their support for the indigenous uprising.  On February 5, 2000, General Norton Narváez, Commander of the Army, announced that 113 members of the Armed Forces would be prosecuted.  Congresswoman Nina Pacari submitted a draft amnesty document in favor of the civilian and military officers who were involved in the events of January 21.  

31.     The indigenous organizations have publicly stated that they feel angry and deceived by the fact that their uprising only led to the rise of former Vice President Gustavo Noboa to power.  As far as they are concerned, President Noboa represents a continuation of the economic policies of former President Mahuad.  President Noboa, who enjoys the support of the Ecuadorian Congress and the military leadership, has stated that he will continue the economic policies of the former President.         

32.     Both the American Convention and OAS Charter are based on the premise of a Hemisphere composed of democratic countries.  Human rights cannot be exercised in a context of military dictatorship.  The arguments advanced by a given sector of society that wishes to change government policy may be perfectly legitimate; however, in a democratic society the rules of the game must be respected.  

          III.      ANALYSIS OF THE INSTITUTIONAL CRISIS 

            33.     In the context of the American Convention, the events described above constitute a serious institutional crisis in Ecuador, which justify the concern shown by the Commission.  In fact, in the period under study, actual conditions arose in that country that fit the description provided in the “Fifth Criterion” prepared by the Commission for the preparation of country reports, mentioned in paragraph 2 of this report. 

          34.     The Commission has always maintained that institutional crises have an impact on the exercise and enjoyment of rights.  It therefore underscores the positive fact that the street demonstrations that took place in Ecuador in 1999 and 2000 did not lead to bloodshed or the loss of human life.  However, they undermined and weakened some institutions, among them the very ones that are intended to guarantee citizens the ability to exercise their rights. 

          35.     The replacement of a President elected by popular vote before the end of his mandate is always a serious development and one that must be frowned upon from the standpoint of the safeguarding of democracy.  The Commission is aware that there are occasions on which Presidents themselves precipitate institutional crises (for example, when, without authority they shut down Congress or undermine the independence of the Judiciary).  In such instances, the restoration of the rule of law may require the replacement of the President.  To the extent that this is done in accordance with the mechanisms set forth in the Constitution in question (political trial, presidential succession in the case of resignation), such solutions are compatible with the American Convention on Human Rights. 

          36.     That was not, however, the case in Ecuador in January 2000.  President Mahuad was illegally removed from power by the actions of a number of civilians and public officials, particularly military officers.  His own actions were not at the root of the crisis.  However, the foregoing cannot be interpreted as an articulation of the Commission’s opinion on the prudence of the economic measures adopted by former President Mahuad, a subject which, in the case at hand, is outside the jurisdiction of the Commission.  The Commission considers it necessary to make it clear that an economic crisis does not justify the illegal removal of the President of the Republic from office. 

          37.     After sober analysis of the facts as they are known, the Commission holds the view that what happened in January 2000 was a coup d’etat.  The solution reached, that is, succession by Vice President Noboa, is an appropriate remedy in light of the gravity of the events that occurred.  Furthermore, President Noboa derives his own legitimacy from the ballot box; in electing him Vice President, Ecuadorians were expressing their wish for one of his functions to be the assumption of the presidency in the event of a vacancy. 

          38.     It is clear, however, that the vacancy did not occur because of the resignation of the President elected by the Ecuadorian people or by an act that can be attributed to him.  In the view of the Commission, the decision of the Congress to consider his temporary exile at the Chilean Embassy to be tantamount to “abandonment” of his position is not a convincing one, although it is understandable given the complicated political context and the need to find a solution quickly. 

          39.     In the opinion of the Commission, the popular leaders who were involved in the events and the military officers who supported them dealt a blow to democracy.  Each citizen naturally has the right to call for the resignation of the authorities, even those elected by the people and to take to the streets to do so.   This is part of freedom of expression and association.  The line is crossed, however, when attempts are made to create an alternative government by occupying certain public buildings and preventing key institutions from functioning, such as the three branches of government. 

          40.     In the view of the Commission, the acts of force that took place on January 21, 2000, in particular the attitude of certain top officials and State authorities, constituted a violation of the basic principles of international law in the Americas and of the rights enshrined in the American Convention.  The complete functioning of the powers that are legitimately constituted, without prejudice to their independence and on the same level with the other State powers, is an essential requirement of democracy adopted by the OAS Charter (Article 3).  The OAS Charter is a multilateral treaty that creates obligations among member States and the “democratic clause” is one such obligation. 

          41.     Furthermore, the acts of force indicated, and the fact that they resulted in the removal of Mr. Mahuad, violate Article 23 of the American Convention in which the right to political participation is enshrined.  This right is both individual and collective.  Insofar as Mr. Mahuad is concerned, his irregular removal violated his right to election and to be elected.  The right of choice of the electorate who cast their vote for him at the appointed time was also violated.  This right is meaningless if it does not include respect for the obvious expectation that the authorities elected by individuals will be able to carry out their functions, in a context of law, for the term originally stipulated. 

          42.     The interruption or premature cessation of electoral mandates can certainly be compatible with the right to political participation.  This happens when such an act is carried out using the methods or for the reasons set forth in the Constitution and laws.  An impeachment trial of the President of the Republic is fitting in the event of the commission of offenses against State security or for the offenses of extortion, bribery, embezzlement, and illicit enrichment (Article 130(9) of the Constitution).  Another method provided for in modern democracies is the revocation of a mandate by referendum.  The current Constitution of Ecuador makes provisions for a referendum in Articles 103-108, although its rules are not clear with regard to its application to the President. 

          43.     The Commission concludes that the events of January 21, 2000 violated the international obligations of the State, although this should not be taken to mean that the Commission is calling for a return to the status quo ante.  First, the statement of Mr. Mahuad that he supports President Noboa can be construed as an endorsement of the solution reached.  Furthermore, the Commission is aware of the need to offer realistic solutions, the effect of which is to produce stability rather than to prolong the crisis.  However, the Commission holds the view that the actions of senior officials and officers of the Armed Forces who have a duty to protect democracy but instead played a role in undermining it warrant investigation. 

          IV.       THE STATE OF EMERGENCY 

          A.        The actions taken by the Government 

            i.          Province of Guayas 

            44.     The Ecumenical Human Rights Commission [CEDHU] submitted a document to the IACHR on February 3, 2000, in which it reported that the Government of Ecuador “had repeatedly violated the American Convention on Human Rights by declaring a state of emergency when the requirements set forth in Article 27 of said Convention had not been met.”  The document presents the following information on the states of emergency declared in Ecuador in 1999. 

          45.     According to the information provided by CEDHU, the first state of emergency was declared on January 7, 1999 in the Province of Guayas for 60 days: 

On January 7, 1999, Dr. Jamil Mahuad, pressured by the productive sectors and the mass media in the Province of Guayas, using as a pretext the need to combat crime, declared a state of emergency in that province by means of Executive Decree No. 483, which appears in the second supplement of Official Register No. 105 of Monday, January 11 of that year.  This decree suspends the effective exercise of the rights set forth in Article 23(12) (inviolability of  domicile) and (14) (freedom of movement) of the Constitution, authorizes the use of members of the Armed Forces, provides for the application of the National Security Law under which any civilian accused of committing an offense during this state of emergency may be prosecuted by the military courts, and establishes a Regional Security Committee chaired by the Governor and composed of the Armed Forces, National Police, and Civic Council of Guayas.  This Regional Security Committee expanded these measures, prohibiting assembly in parks and public places, and ordered the detention of persons who were not carrying identification cards.  That broadening of suspended constitutional rights is a clear violation of the Constitution.  In fact, Article 57 of the Statute of the Administrative and Legal System of the Executive states that under no circumstances shall the constitutional powers of the President of the Republic be delegated.  Since the President has exclusive authority to declare a state of emergency and thus to limit or suspend constitutional rights, the Regional Security Committee, in expanding these powers without having the authority to do so, was exercising authority that was not vested in it, inasmuch as public law does not permit expanded or analogous interpretations and officials can take only the action that is provided for in the Constitution and the Law. 

There was a 60-day extension of this state of emergency on two occasions, and it was finally lifted in July 1999.

          46.     According to CEDHU, the information that follows pertains to actions conducted by the public forces during the state of emergency imposed in January 1999.  According to official figures, between January 9 and May 20, 1999, 5,253 persons were detained.  Of this number, 1,600 persons were detained for not carrying documents, although under Ecuadorian law this is not an offense.  Between January and April, 40 arbitrary arrests of homosexuals were reported in Guayas, which included punishment and mistreatment.  The Commission does not know whether homosexuality constitutes an offense under Ecuadorian Law.  Furthermore, it sees no relation whatsoever between homosexuality and the circumstances that may have given rise to the state of emergency. There were also 17 reports of torture at the hands of the public forces.  During anti-crime activities, eight persons were shot and killed by the police, among them two minors.  In addition, three persons died while in custody under conditions of extreme cruelty.  On March 5, 1999, Jimmy Contreras was detained by military officers on charges of suspected robbery and taken to a judicial police cell.  After two days, he was transferred to the provisional detention center.  On March 13, he was taken to the polyclinic’s penitentiary because of a hemorrhage.  He died one hour later.  The Commission, however, has not received complaints from any of those victims.  In May, seven persons from the Las Malvinas neighborhood were riddled with bullets in incidents involving armed and hooded individuals.  The Commission has not received complaints regarding these deaths either.  It is clear that this type of action, carried out by the security forces, in the context of a state of emergency, cannot be described as the “exigencies of the situation” (Article 27 of the American Convention).  Application and observance of the Convention requires the investigation by Ecuador of each and every one of these acts and the possible sanctioning of the perpetrators. 

          47.     In November 1999, the Government once again decreed a state of emergency in the Province of Guayas.  Once again, the productive sections and the mass media, together with the Civic Council, pressured the Government to declare a state of emergency in that province, arguing that this was the only way to suppress the crime taking place there as a result of the Christmas and end-of-year celebrations.  On November 30, 1999, the President issued Executive Decree Nº 1557, which was published in Official Register Nº 332 of Friday, December 3.   This decree, like the one in January mentioned above, declared a state of emergency in the Province of Guayas, suspended the exercise of the rights established under Article 23(12) (inviolability of domicile) and 14 (freedom of movement) of the Constitution, authorized the use of the members of the Armed Forces, provided for the application of the National Security Law under which any civilian accused of an offense had to be prosecuted by the military courts, and established a Regional Security Committee chaired by the Governor and composed of the Armed Forces, National Police, and Civic Council of Guayas. 

          ii.         National territory 

            48.     On March 9, 1999, faced with a serious economic crisis, the Government of Ecuador declared a nation-wide state of emergency in view of the fact that several social sectors had announced the organization of marches as a form of protest and in order to get the government to change its economic policy.[37]  The national state of emergency, ordered by Executive Decree No. 681 published in Official Register No. 148 of March 15, 1999, suspended the effective exercise of the rights established in Article 23(12) (inviolability of domicile), 14 (freedom of movement), and 19 (freedom of association and assembly) of the Constitution of Ecuador.   On March 18, 1999, Executive Decree No. 787 was issued and published in the Supplement to Official Register No. 153 of Monday, March 22, 1999.  It declared the lifting of the national state of emergency in effect since March 9, 1999.[38] 

          49.     In 1999, CONAIE declared its open opposition to the Government of President Mahuad.  Antonio Vargas, its President, along with leaders of the oil sector, called on President Mahuad to step down if he did not abandon his neo-liberal policies and the policies of the International Monetary Fund. 

          50.     According to information provided by CEDHU, a state of emergency was declared in early July 1999, and more than 500 persons were imprisoned, most of whom were taxi drivers and demonstrators.  In Manabí, a camera man was assaulted by the Police and his camera destroyed.  Since the guarantee of justice through the normal channels was not possible, the majority of persons detained during the protests were subjected to military justice, without the guarantees of due process.  The application of the rules of the National Security Law for the prosecution of civilians, based on the military code, violates the right to be prosecuted by independent and impartial tribunals.  Also, the military courts dispense justice over matters that are not within the military sphere and affect civilians.  The People’s Democratic Movement (MPD) submitted a petition to the Ombudsman to have the emergency decree and mobilization issued by President Mahuad declared unconstitutional.  On July 13, 1999, Congress revoked the decree imposing the state of emergency.  

          51.     On July 16, the National Congress granted a general amnesty to all detainees or persons prosecuted for work stoppages during the state of emergency.  According to CONAIE, in addition to the persons detained, 30 indigenous people were injured and three were killed during the state of emergency.  The Commission has not received any complaints regarding those acts. 

          52.     On July 17, 1999, the indigenous movement signed an agreement with the Government providing for a number of benefits, not only for the indigenous peoples but also for broad sectors of Ecuadorian society, which put an end to the unrest and the state of emergency.  In order to achieve this, some 10,000 indigenous people had to stage protests and the society came to a standstill for 12 days.  The freezing of the price of fuel, the establishment of a subsidy for electricity rates for the poorest sectors, and the gradual unblocking of the bank accounts of all Ecuadorians were some of the things agreed upon.

          53.     The collapse of that agreement led to the events of December 1999 and January 2000.  On January 5, 2000, the Government of Ecuador again declared a nation-wide state of emergency in light of the pervasive crisis existing at that time.[39] 

          54.     Based on the information provided by CEDHU, social and indigenous groups called for a national mobilization in January 2000, in order to protest the economic measures that were being adopted by the Government, in view of the decision not to turn over to citizens the funds that had been frozen in banks since March 1999, mentioned above.  Faced with this decision of the population, the Government, early on the morning of January 5, 2000, issued Executive Decree No. 1674, published in the Supplement to Official Register No. 357 of Monday, January 10, 2000, suspending the rights listed in Article 23 (12), (14), and (19) of the Constitution, and providing for the application of the National Security Law. 

          55.     On January 7, 2000, the Ambassador to the OAS, Patricio Vivanco Riofrio, pursuant to Article 27(3) of the American Convention, informed the Secretary General  of the OAS, César Gaviria, of the “declaration of a state of emergency” and attached a copy of the pertinent Executive Decree (No. 1674).  Article one of the Executive Decree declares “a national state of emergency and … establishes the entire territory of the Republic as a security zone.”  Article two makes provisions for the “total mobilization under the terms of the National Security Law and for the requisitions necessary, pursuant to law, as well as the use of the public forces, in order to reestablish the conditions required for the normal conduct of the activities of citizens.”  The third article suspends the rights established in Article 23(12) (inviolability of domicile), 14 (freedom of movement), and 19 (freedom of association and assembly) of the Constitution. 

          56.     In a letter dated January 6, 2000 forwarded by the Minister of Foreign Affairs to the Secretary General of the OAS, providing notification of the state of emergency, it was stated that “this measure is prompted by the serious internal upheaval caused by the economic crisis in the country.” 

          57.     On January 11, 2000, Executive Decree No. 1682 was issued and published in the Supplement to Official Register No. 360 of Thursday, January 13, which amended Decree No. 1674 by replacing the second Article with the following: “provisions are made for a total national mobilization under the terms and with all the consequences established by the National Security Law, the requisitions necessary pursuant to law, and the use of the public forces, under a single military command, in order to reestablish the conditions required for the normal conduct of the activities of citizens. To that end, all the powers conferred by the National Security Law shall be exercised.”   This amendment expanded the former decree and provided for the use of the Armed Forces to deal with the protests. 

          58.     Based on the information received by the Commission on January 7, 2000 from CEDHU, after the declaration of the state of emergency, the security forces detained more than 22 persons in different cities of the country, many of whom were students who were on the streets participating in the protests.  This report does not include the names of the persons detained or details on how or where these detentions took place. 

          59.     On January 31, 2000, President Noboa issued an Executive Decree extending the state of emergency in Guayas.  According to CEDHU reports, this decree and the one declaring the national state of emergency were issued without meeting the conditions set forth in Article 27 of the American Convention.  The compatibility between the declaration of the state of emergency in January 2000 and the American Convention on Human Rights will be analyzed below. 

          B.        Analysis of the state of emergency declared in January 2000 

            60.     The Constitution of Ecuador vests the President with the authority to declare a national state of emergency and to exercise specific powers.[40]  Pursuant to Article 180 of the Ecuadorian Constitution, "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.”   Moreover, the President shall notify the Congress of this declaration within 48 hours of issuance of the decree.  The Congress may, “if the circumstances so warrant,” revoke the decree at any time.[41] 

          61.     Despite the obvious emergency situation existing in Ecuador, the State was not and is not relieved of its obligations.  In ratifying the American Convention, the State assumes different obligations regarding the declaration of a state of emergency.  In that regard, it establishes special standards for emergency situations such as those faced by Ecuador.  With regard to the requirements for the declaration of a state of emergency , the Inter-American Court has indicated the following with regards to a legal analysis of Article 27 of the Convention:[42]

The starting point for any legally sound analysis of Article 27 and the function it performs is the fact that it is a provision for exceptional situations only.  It applies solely “in time of war, public danger, or other emergency that threatens the independence or security of a State Party.”  And even then, it permits the suspension of certain rights and freedoms only, “to the extent and for the period of time strictly required by the exigencies of the situation.”  Such measures must also not violate the State Party´s other international legal obligations, nor may they involve “discrimination on the ground of race, color, sex, language, religion, or social origin.”[43]

          62.     Under Article 27 of the American Convention, the State may adopt only measures that have the effect of suspending the guarantees enshrined in the Convention “in time of war, public danger, or other emergency that threatens its independence or security.”  The measures adopted as a result of the declaration of a state of emergency must fulfill the requirements related to reasonableness, proportionality, time limits, and the circumstances required by Article 27 of the Convention.  The suspension of certain guarantees established in the Convention should be exceptional in nature and be ordered for the reasons specifically set forth therein. 

          63.     The suspension of the guarantees enshrined in the Convention during a state of emergency may take place only if the strict conditions set forth in Article 27(1) are met.  Furthermore, even when these conditions are met, Article 27(2) stipulates that a certain category of rights may never be suspended, regardless of how serious the situation may be. 

          64.     Article 27(1) provides for different situations and stipulates that the measures adopted must be in keeping with the “exigencies of the situation.” The lawfulness of the measures taken to deal with the different situations referred to in Article 27(1) will depend, according to the Court, on “the character, intensity, pervasiveness, and particular context of the emergency and upon the corresponding proportionality and reasonableness of the measures.”[44]  In view of the fact that the Commission has not received any specific report from any of the victims of these incidents, a more in-depth analysis of the manner and the circumstances under which they occurred falls outside the scope of its competence. 

          65.     Ecuador has a long history of declaring states of emergency in order to mitigate social and economic problems, as well as crime.  In that regard, last year the Commission recommended to Ecuador that it refrain from declaring a state of emergency to combat that type of problem.  Given the large number of states of emergency that were declared in 1999, as well as the reasons for them, the Commission deems it necessary to reiterate this recommendation: 

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 to reduce the social unrest caused by the economic situation and to fight crime 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] 

66.     However, the declaration of the state of emergency in January 2000, because of the inability of the Executive to face the economic crisis that led to “internal unrest” is different.  In this case, the Executive was clearly confronting an emergency situation that was undermining the democratic order and threatening the powers that comprise the State.  Therefore, the “internal unrest” that gave rise to the declaration of a state of emergency led to a coup d’etat, by means of which President Mahuad, who was constitutionally elected, was removed from office and replaced with the current President, Gustavo Noboa.  In that regard, the Inter-American Court has stated that: 

…under certain circumstances the suspension of guarantees may be the only way to deal with emergency situations and, thereby, to preserve the highest values of a democratic society. (…) Given the principles upon which the Inter-American system is founded the Court must emphasize that the suspension of guarantees cannot be disassociated from the “effective exercise of representative democracy " referred to in Article 3 of the OAS Charter. The soundness of this conclusion gains special validity given the the context of the Convention, whose Preamble reaffirms the intention of the (American states) “to consolidate in this Hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man.” The suspension of guarantees lacks all legitimacy whenever it is resorted to for the purpose of undermining the democratic system. That system establishes limits that may not be transgressed, thus ensuring that certain fundamental human rights remain permanently protected. [46]

          67.     Based on Article 27 of the Convention and the rules indicated by the Inter-American Court, there is a basic prerequisite of respect for the system of representative democracy and certain requirements for a State to have grounds for declaring a state of emergency.  In this case, the President of Ecuador declared a state of emergency to preserve a democratic government.  The use of the provisions of the Constitution by the Congress to justify the removal of Mahuad shows that Congress respects the form of the Constitution without respecting its substance. 

          68.     With regard to the prerequisite of respect for the system of representative democracy, it should be pointed out that, pursuant to Article 3(d) of the Bogotá Charter (1948), one of the fundamental principles governing the Organization of American States is that member states organize themselves in accordance with the principles of representative democracy.  In turn, the Convention reaffirms in its preamble that its goal is "to consolidate in this Hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man."  In that same spirit, Article 29 prohibits the interpretation of any of its provisions as precluding “other rights or guarantees that are inherent in the human personality or derived from representative democracy as a form of government,” while Articles 15, 16, 22, and 32 also refer to democracy as a prerequisite for the political organization of the states parties. 

          69.     In both instances where a state of emergency was declared (in the Province of Guayas and throughout the country), both were extended despite the fact that the emergency no longer existed.  It is important to point out that in both cases, provisions were made for the use of the law and order forces to protect citizens.  In this regard, the Commission reiterates, based on its experience in the Hemisphere, its concern over the use of the Armed Forces to perform functions that are assigned to the civil police, in view of the fact that the Armed Forces are trained to carry functions that are different from those that pertain to controlling crime and protecting citizens. 

          70.     In both cases also, the application of the National Security Law was ordered, according to which the events that occurred during the state of emergency and violate that law and those punished with imprisonment have to be prosecuted under the military penal code.[47]  As the Commission has already maintained, the trial of civilians in military courts is incompatible with and in violation of Article 27 of the Convention, since it involves a suspension of the “judicial guarantees essential for the protection of such rights,” which, according to the Convention, cannot  be suspended. 

            V.        CONCLUSIONS 

            71.     The Commission has followed with concern the serious institutional situation existing in Ecuador, characterized by the confrontation between the Executive, on the one hand, and well- organized indigenous groups that formed an alliance with one sector of the Armed Forces, on the other, who tried to assert their rights by means of insurrection against the democratically elected government. 

          72.     The Commission urges the Ecuadorian authorities and their public institutions to take all steps possible to ensure the complete enjoyment of the rule of law.  The Commission will continue to monitor developments in Ecuador until a state of institutional normalcy is restored, in the context of the strengthening of representative democracy in the Hemisphere.  To that end, it will use all the powers conferred upon it as a principal organ of the OAS, within the framework of the American Convention, its Statutes, and its Regulations.

          VI.       RECOMMENDATION 

            73.     The solutions to the crisis must be found within the framework of legality and the rule of law, the ultimate expression of which is the Constitution, which forms the bedrock of the democratic system of government and confers legitimacy on all the authorities that exercise power in Ecuador.  The Commission is available to provide its assistance in finding solutions to the crisis within the framework of the American Convention.

VIII.     PROCESSSING OF THE REPORT 

          74.     The draft report on the situation of human rights in Ecuador was approved by the Commission during its 106º regular session.  It was sent to the State on March 10, 2000, pursuant to Article 63(h) of the Commission´s Regulations, in order to allow for the submission of observations within thirty days. 

          75.     The Ecuadorean State failed to present observations within the time limited provided. 

          76.     On April 13, 2000, the Commission approved this report and its publication within Chapter IV of the present Annual Report.