COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF ECUADOR

The Committee against Torture this morning began its consideration of the third periodic report of Ecuador on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

Juan Carlos Faidutti, Ambassador and Permanent Representative of Ecuador to the United Nations Office at Geneva, introduced the report, saying that the establishment of a Commission for Public Coordination in the Field of Human Rights, an inter-governmental body in which civil society had a decisive role to play, was evidence of the Government’s commitment to all matters connected to human rights. Ecuador maintained as one of the most basic elements of its foreign policies the fulfilment of its commitments with regard to international treaties, in particular in the field of human rights, from the moment that those fundamental rights became part of the constitutional and legal structure of the State in which the human being was the prime element.

Serving as Rapporteur for the report of Ecuador was Committee Expert Claudio Grossman, who said the aim of the meeting was to stimulate dialogue between the State and the Committee, and the comments that would be made were directed towards this goal, which was the underlying purpose of the questions. On the definition of torture, in criminal law it was important to be very specific when describing the type of activity that was prohibited, and it was of fundamental importance to know in what way this crime was criminalized in the internal sphere. The text of the Criminal Code did not appear to fully comply with the definition of the Convention, in particular with regard to what was referred to as mental suffering. Did the criminal system make it illegal to disappear a person as a form of inhuman treatment perpetrated on the relatives of the disappeared person, he asked.

Fernando Marino Menendez, the Committee Expert serving as Co-Rapporteur for the report, said that the Committee was aware of the constitutional crisis that was occurring in Ecuador, as well as of the financial constraints to which the Ambassador had referred, as these raised certain problems, in particular with regards to the construction of prisons. The public allocation budgets that went towards training and seminars on torture were of course limited. The report was delayed, and thus had perhaps not been able to reflect all legislative changes from 1994 to 2001, during which time major changes had taken place. There had been major strides forward made and legal progress, including the prohibition of incommunicado detention and other issues relating to Ecuador’s opening up to the United Nations’ Special Procedures and Special Rapporteurs.

Other Committee Experts raised questions on issues pertaining to, among other things, the differing prison facilities for men and women, and how in certain prisons there were both men and women prisoners, and how the two genders were treated; what legal and practical measures were taken to prevent acts of torture by paramilitary groups; what measures were taken to prevent ongoing ill-treatment, attacks and the like against persons on the grounds of their sexual orientation; and why trafficking in women for purposes of sexual slavery was not penalised by law.

Also representing the delegation of Ecuador was a representative of the State Prosecutor General.

The delegation will return to the Committee at 10 a.m. on Monday, 14 November to provide its response to the questions raised this morning.

Ecuador is among the 140 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.

When the Committee reconvenes at 3 p.m., it will hear replies to its questions by the delegation of Sri Lanka.

Report of Ecuador

The third periodic report of Ecuador (CAT/C/39/Add.6) says the report is intended to address the concerns and recommendations expressed by the Committee in 1993 following consideration of the second periodic report. Ecuador, faithful to its tradition of respect for and promotion of human rights, and consistent with its international treaty obligations in that regard, guarantees the human rights and fundamental freedoms of its citizens. In this context, Ecuadorian legislation expressly forbids any form of torture or other cruel, inhuman or degrading treatment, in accordance with articles 23.1 and 23.2 of the Constitution in force since August 1998. Ecuador has also signed a number of international instruments that strengthen human rights protection for its citizens.

Ecuador has made a great effort to adopt legal, administrative, judicial and other measures to prevent acts of torture in the country. Ecuador has taken significant legislative, judicial and administrative steps to ensure that cases of torture and other cruel, inhuman or degrading treatment, corresponding to the definition contained in article 1, are investigated and punished. The Constitution has introduced substantial changes with regard to the gradual incorporation of administrative judges belonging to the executive branch, in particular military, police and juvenile judges, into the judiciary. Domestic legislation does not justify the commission of the offence of torture in any way; not even exceptional circumstances, such as a state or threat of war, internal political instability or any other public emergency, justify torture. The Constitution regulates such exceptional situations and authorizes the President of the Republic to declare a state of emergency in circumstances of extreme gravity, but its article 181, in particular paragraph 6, expressly stipulates those rights that may be limited or suspended.

The Government acknowledges that in the period covered by this report, human rights violations had occurred. These occurrences were not systematic, and certainly did not have the consent of the Ecuadorian State, but were the result of isolated excesses by government officials. Accordingly, Ecuador is making every effort to provide appropriate compensation in accordance with domestic legislation and its obligations under various human rights covenants to the victims of torture or to their family members. In June 1998 the Government adopted as a State policy a national human rights plan, under Executive Decree No. 1527, published in Official Gazette No. 346 of 24 June 1998. The Plan is intended to prevent, eradicate and punish human rights violations in the country. The Plan is universal, mandatory and comprehensive. The Government and civil society are responsible for compliance with and implementation of the Plan.

Presentation of Report

JUAN CARLOS FAIDUTTI, Ambassador and Permanent Representative of Ecuador to the United Nations Office at Geneva, said the Committee played a fundamental role in the development of human rights on behalf of mankind, and there could be no doubt that the United Nations was playing a fundamental role in the world as the guardian of human rights, and the Committee was responsible for implementing its important policies. Ecuador maintained as one of the most basic elements of its foreign policies the fulfilment of its commitments with regard to international treaties, in particular in the field of human rights, from the moment that those fundamental rights became part of the constitutional and legal structure of the State in which the human being was the prime element. Within this framework, Ecuador, as a State party to the Convention Against Torture, presented its report on the current situation in the country.

The importance the State attached to the protection of these basic rights was reflected at various levels, Mr. Faidutti said. No region was excluded from the fundamental process of increasing awareness of human rights, and particularly the need for promotion and protection of human rights. Within this context, and focussing on the work of dissemination of these fundamental rights, with respect to the case of those individuals in prison, the national plan had adopted a special operational system that drew upon members of institutions and of civil society. Training was given to prison staff with a view to the rehabilitation of the offender and reintegration within society as a matter of public good, and this training was intended or directed to the staff who ran social detention and rehabilitation centres in Ecuador, with the aim of eradicating torture and the violations of the human rights of those deprived of their freedom. This training was the working tool that the State of Ecuador employed to this end. The establishment of a Commission for Public Coordination in the Field of Human Rights, an inter-governmental body in which civil society had a decisive role to play, was further evidence of the Government’s commitment to all matters connected to human rights.

Gender equality and the need to ensure respect for related rights had been crystallised in the enactment of laws to combat violence against women and the family, including sexual violence, Mr. Faidutti said. Ecuador had paid due attention to ensuring that its legislation served to control and reduce violence, through an increase in penalties and giving appropriate consideration to the situation of those involved in sexual violence. On indigenous issues, the State had paid great attention to the right of indigenous peoples to implement their own legal traditional systems. As evidence of Ecuador’s commitment to providing reparation to the victims of violence, a system had been established for reconciliation, in agreement with Ecuador’s international agreements.

Response by Delegation

The delegation responded to a series of written questions prepared by the Committee in advance and sent to the State party beforehand. There had been the adoption of a National Plan on Human Rights for prisons, which would contribute to improving the situation in Ecuador’s penitentiary system. Regarding what stage had been reached on cases awaiting judicial decision, through the Office of the Prosecutor General and the Foreign Ministry and the Inter-American Court of Human Rights, in cases awaiting judicial decision, the State of Ecuador was one of the first States to act in an innovative manner with a view to out-of-court settlements. This was a means of providing financial compensation to the victims.

The Constitution of Ecuador acknowledged that indigenous societies were allowed to pursue their own judicial systems in the context of their own traditions. The indigenous system was governed by the Constitution, which stipulated that indigenous people should exercise their own norms and solutions with regards to internal conflicts, providing these were not contrary to national legislation. Disputes arising between members of the indigenous communities were subject to decisions in the judicial courts, the delegation said.

Ecuador would present a new draft criminal code governing preventative detention, which would ensure the appearance of the accused in court, monitoring the serving of sentences, and ensuring the presentation of evidence if the accused was subject to detention for more than one year, the delegation said. The Convention had been cited before the courts of Ecuador, in cases linked to human rights organizations. With the assistance of civil society, the State had entered into agreements on cooperation with the relatives of prisoners in order to ensure that there would be prompt provision of legal assistance where the prisoner could not afford his own defender. Public defenders were provided for indigenous communities, women, abandoned children and those who lacked economic means. The accused was entitled to choose a legal counsel and could do so before the first appearance in court.

On training in human rights for the armed forces, training programmes had brought about a change in the perception and protection of human rights among the armed forces, the delegation said. Complaints of violations of human rights among or by the armed forces had diminished as a result of the training. Seminars and special conferences provided by former judges of the Inter-American Court of human rights had been provided for guards and directors of the penitentiary organizations in the country. Up until before the creation of the judicial police, there were cases of torture in police cases and of cruel and inhuman treatment due to conditions of detention. Detainees had established a self-management system to buy things required for sanitation and hygiene purposes which the State did not provide. However, corruption continued to exist among penitentiary guards, and a school for training for the purpose of replacement of these guards had been established.

Efforts were being made to provide safe prison conditions in order to prevent incidents of torture, the delegation said, and this was being done through constitutional remedies as well as judicial ones. Any person whose liberty was threatened or who felt it was threatened by an abuse of power could bring an action against the person in any court, and the Government of Ecuador believed that acts of torture were therefore difficult. There had been a clear reduction in incidents of torture in detention and prison centres. With the new norms that entered into force in July 2001 with the new Code on Criminal Procedure, a new criminal system had been installed, which entailed radical reforms in the treatment of criminals, and the Public Prosecutor’s office had been given responsibility for the pre- and post-trial situation of criminals.

Disciplinary sanctions were administered in parallel with the criminal process for officials who were guilty of committing acts of torture - and the delegation said there had even been cases of dismissal of an official before the case was actually proved. Through the negotiation and signing of bilateral and multilateral Conventions, it was believed that foreigners sentenced in Ecuador would be able to serve their sentences in their country of origin. Statements obtained by torture could not be used as evidence in a court, and this was included in the Constitution. The Criminal Code did not deal with the subject of evidence, as it dealt with the penalisation of various offences. Evidence and proof were covered by the Criminal Procedure Code. There had been increased awareness of the dangers of relying on evidence obtained by torture. As terrorism was a crime against mankind, Ecuador believed that it was a crime committed against the State, and the Criminal Code criminalized terrorism.

All of the efforts taken by Ecuador had focussed on bringing legislation into focus with the international documents and agreements that had been signed, Mr. Faidutti said, in keeping with the law of the Constitution which stipulated that these would prevail over domestic laws. The State aimed all of its actions at ensuring that all human beings in the country could enjoy a life in dignity and in the enjoyment of their human rights, and it did all it could in order to ensure this, although it did not have the financial capacity to ensure this to the extent that it would wish.

Questions by Experts

CLAUDIO GROSSMAN, the Committee Expert serving as Rapporteur for the reports of Ecuador, said the Committee appreciated the report. The aim of the meeting was to stimulate dialogue between the State and the Committee, and the comments that would be made were directed towards this goal, which was the underlying purpose of the questions. On the definition of torture, in criminal law it was important to be very specific when describing the type of activity that was prohibited, and it was of fundamental importance to know in what way this crime was criminalized in the internal sphere. The text of the Criminal Code did not appear to fully comply with the definition of the Convention, in particular with regard to what was referred to as mental suffering. Inclusion in the Constitution was not sufficient, there was a need for it to be included in the Criminal Code.

The issue of the judiciary, prosecutors and legal counsel being provided with the tools to ensure that the obligations of the Convention could be fulfilled internally was also important. It was understood that the funding and resources made available to the judiciary was somewhat limited, Mr. Grossman said, and there were many cases whose consideration was being delayed. The question of violence against women and sexual minorities was also raised, and he asked if there was a provision with respect to sexual minorities in the law, and whether the police were trained to address questions of sexual violence in respect of both women and sexual minorities, and if so was this being extended. Another question asked was if public defenders received training in the languages used by indigenous peoples.

Reports had been received from non-governmental organizations, and the Committee had been told that in some cases those arrested had been released before being judged or prosecuted, and they were never brought before the courts, and this was evidence of jurisdictional conflicts between the police and the judiciary, and Mr. Grossman asked for comments on this perception. Did the criminal system make it illegal to disappear a person as a form of inhuman treatment perpetrated on the relatives of the disappeared person, he asked. The Inter-American Commission was a matter Ecuador was familiar with, as there had been many out-of-court settlements, and in each instance the only obligation fulfilled up to now had been to pay compensation. However, financial compensation was insufficient, and there should be national investigation and punishment of those guilty, as this was a matter of promoting and protecting human rights, as it discouraged the repetition of violations. Was there even one case of a person who had been condemned for torture, he asked.

FERNANDO MARINO MENENDEZ, the Committee Expert serving as Co-Rapporteur for the report of Ecuador, said that the Committee was aware of the constitutional crisis that was occurring in Ecuador, as well as of the financial constraints to which the Ambassador had referred, as these raised certain problems, in particular with regards to the construction of prisons. The budget that went towards training and seminars on torture was of course limited. The report was delayed, and thus had perhaps not been able to reflect all legislative changes from 1994 to 2001, during which time major changes had taken place. There had been major strides forward made and legal progress, including the prohibition of incommunicado detention and other issues relating to Ecuador’s opening up to the United Nations’ Special Procedures and Special Rapporteurs.

Concerning training and comprehensive education for all public officials and those involved in arrests, detention and treatment on the prevention of torture, Mr. Marino Menendez noted that training of military staff seemed to have gone through a number of different stages, and asked whether the programme had already been completed. The National Training Plan was much broader, including the police force and encompassed in general agents, officials and persons dealing with those who were deprived of their liberty, and he asked if the Government could ensure that this Plan continued to move forwards. In the light of international law and the application of the Convention, any private organization that carried out work for the State, when it committed an act, was recognised as having acted for the State, and this should be borne in mind.

The Committee had previously expressed its concern at issues related to police regulations in the case of an illegal act committed by a member of the police force, and Mr. Marino Menendez asked for statistics on the number of prosecutions of police officers for such acts. Were inspections carried out in places of detention and prisons carried out by the Public Prosecutor, and was there a public registry recording these visits, he asked, and were those employed by the prison or place of detention who had carried out acts of torture or cruel treatment suspended, or could they continue their jobs. Was a system set up for compensation for victims of torture, and was funding a problem here, he asked, or was there not a culture of compensation.

Other Committee Experts also raised a series of questions. An Expert asked a question on the statistical information that had been submitted. Other issues raised included the differing prison facilities for men and women, and how in certain prisons there were both men and women prisoners, and how the two genders were treated; what legal and practical measures were taken to prevent acts of torture by paramilitary groups; what measures were taken to prevent ongoing ill-treatment, attacks and the like against persons on the grounds of their sexual orientation; and why trafficking in women for purposes of sexual slavery was not penalised by law.

For use of the information media; not an official record

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