HUMAN RIGHTS COMMITTEE CONSIDERS REPORT OF ECUADOR

The Human Rights Committee has concluded its consideration of the fifth periodic report of Ecuador on measures undertaken to implement the provisions of the International Covenant on Civil and Political Rights.

Presenting the report and answers to written questions, Michelle Artieda, Under-Secretary for Justice and Human Rights of Ecuador, noted that Ecuador had made progress in incorporating human rights in public policy through the National Plan for Good Living. That had been set up by the National Secretariat for Planning, and it developed the activities of the Executive and other public powers to guarantee that human rights issues received due public funding. As for protections for indigenous peoples and those of African descent, the new Constitution had made considerable headway in that area. It set out that all rights had to be applied, without discrimination, as well as setting up a mechanism to ensure that Constitutional rights were enforceable. Progress had been made with respect to indigenous peoples, inter alia, by the withdrawing of explosives placed in indigenous territory; guarantees for the free circulation of the Sarayaco indigenous people; and the investigation of the facts that had led to the implementation of special measures against them.

Turning to deprivation of liberty issues, Ms. Artieda noted that reforms had been ongoing for three years now in that area, focusing on infrastructure and on training for prison staff. To ensure that detained persons enjoyed their rights under the Covenant, since 2007 her Ministry had been working through the Ombudsman's Office to provide free legal advice to everyone who needed it, including for illegal aliens. In addition, there had been restrictions placed on the use of preventive detention. In March 2009, the Code of Criminal Procedure had been revised, and a guide for the implementation of preventive detention had been issued.

In the ensuing dialogue, Experts expressed concern that, in the new Constitution of 2008, there were a number of new provisions that were different from the earlier text with regard to human rights. In particular, there was no mention of racial discrimination in the Constitution, which simply mentioned ethnicity. Another concern, given that there had been several states of emergency declared in Ecuador since 2004, was a lack of information in that area in the report. Experts asked for the specific cases and conditions in which those states of emergency had been declared, in order to judge whether there had been discrimination. There had also been no reply to a request for statistics on reports of torture and ill-treatment of detainees and no information on whether, in fact, fundamental legal safeguards for persons detained by the police were upheld in Ecuador. Experts also expressed a number of concerns about the status of women and on the related phenomenon of violence against women, in particular the rape of women within indigenous communities.

Over the course of two meetings with the delegation, Experts asked questions relating to, inter alia, measures to enhance the status of women and to combat gender violence; the apparent lack of coordination between the ministries that should have been involved in drawing up the report; protections for indigenous peoples and those of African descent; reports of torture and ill-treatment of detainees; what kind of external monitoring of police detentions existed and how was it carried out in practice; concerns about the situation of Colombians living in Ecuador, given the break in diplomatic relations between the two countries; concerns about the independence of the judiciary, and related questions over the dismissal by Congress of all nine judges of the Constitutional Court; reports of the treatment of lesbians allegedly for the purpose of making them change their sexual orientation; and the reasons for the four-year delay in providing the indigenous peoples of Sarayaco with protection cards.

The delegation also included Mauricio Montalvo, Permanent Representative of Ecuador to the United Nations Office at Geneva, and other members of the Permanent Mission in Geneva.


When the Committee resumes its work on Thursday, 22 October, at 3 p.m. it is scheduled to discuss its working methods.

Report of Ecuador

The Ecuadorian Government, together with civil society organizations, discussed and approved Ecuador’s National Human Rights Plan, which was adopted in June 1998, says the fifth periodic report of Ecuador (CCPR/C/ECU/5). To implement the programme, Operational Action Plans were devised and approved for sexual minorities, prisoners, consumers, migrants, aliens, refugees and stateless persons, education, older people, Afro-Ecuadorians and young people. Since 1993 the Ecuadorian State has promoted the teaching of human rights in the country, particularly in the professional training of law-enforcement personnel, both civilian and military. One of the most significant programmes was that undertaken by the Ecuador Centre for Multidisciplinary Study and Research, which from 1994 on has promoted human rights training for staff at all levels in the National Police. The central elements in the training have included the prohibition of torture and ill-treatment, investigation procedures, and support for victims of domestic violence. Some 16,192 police officers have been trained each year on these programmes. In the military, under the agreement signed in October 1993 between the Ministry of Defence, the United Nations Development Programme and others, a programme on training in human rights for members of the Ecuadorian armed forces was launched. In addition, channels have been established for military personnel to submit complaints of human rights violations and specific provision has been made for covering human rights in the regular training of the civilian and military personnel of the armed forces.

Regarding measures to protect women and girls from gender-based violence, the Directorate for Gender is the body coordinating all measures relating to the administration of justice in domestic violence cases. Its general objective is to promote the implementation of policies, strategies and mechanisms fostering gender equality and reducing domestic violence. The Offices of Commissioners for Women and the Family are the principal bodies responsible for receiving reports of domestic violence and enforcing the Violence against Women and the Family Act (1995). In 2005, 60,789 violent incidents were reported at national level, 52,450 of them against women. In 2001 only 15 cases of sexual offences and domestic violence were tried in ordinary criminal justice, while 422 cases were tried between January and December 2003. In 2004, the number of cases rose to 1,182, and 1,360 cases were tried in 2005. Policies have been implemented to prevent and tackle violence against women and the family. There are experiments on consultation processes between organized civil society, the national government and local government to help eradicate gender-related violence. The Public Prosecutor's Office, aware of violence against women, has introduced gender mainstreaming as a policy of the institution in all its operations, focusing on prosecuting offences of this kind, and has taken a number of measures to that end, including by setting up units specializing in domestic violence and sexual offences in the country’s three largest districts.

Introduction of the Report

MAURICIO MONTALVO, Permanent Representative of Ecuador to the United Nations Office at Geneva, in introductory remarks, said that Ecuador came to the Committee in the spirit of full cooperation. As could be seen from the report and the replies to the list of issues, Ecuador had endeavoured to provide all the data and specifics asked for by the Committee. Ecuador was going through a process of far-reaching transformation and institutional strengthening, beginning with a new Constitution with further guarantees of human rights.

MICHELLE ARTIEDA, Under-Secretary for Justice and Human Rights of Ecuador, noted that the Ministry of Justice and Human Rights had been recently set up in 2007, and that had been done with great hopes of placing Ecuador as a state under the administration of justice and the rule of law.


Answers by the Delegation to Written Questions from Experts Submitted in Advance

Responding to written questions submitted in advance, regarding the status of the Covenant in domestic law, Ms. Artieda said that human rights treaties were directly applicable in the courts without the need for further incorporation into domestic law.

Concerning the National Human Rights Plan, Ecuador had made progress in incorporating human rights in public policy through the National Plan for Good Living. That had been set up by the National Secretariat for Planning, and it developed the activities of the Executive and other public powers to guarantee that human rights issues received due public funding.

As for protections for indigenous peoples and those of African descent, the new Constitution had made considerable headway in that area, Ms Artieda observed. The Constitution set out that all rights had to be applied without discrimination, as well as setting up a mechanism to ensure that Constitutional rights were enforceable.

Ms. Artieda enumerated the progress made with regard to indigenous peoples, inter alia, by the withdrawing of explosives placed in indigenous territory; guarantees for the free circulation of the Sarayaco indigenous people; the maintenance of the airstrip where the Sarayaco people lived; and the investigation of the facts that had led to the implementation of special measures against them. Further, they had ensured participation of those concerned regarding measures taken to protect the Sarayaco people.

Concerning gender issues, regarding employment, a June 2009 study had established that management staff in public administration were 26 per cent women and that women made up 53 per cent of academicians and intellectuals. On the implementation of the Domestic Violence Act, at present Ecuador had two systems to deal with violence against women: the first was run by the Commissioners for Women and the Family, of which there were currently 33; and second, there was the regular court system. Since the reform of the legal system, courts for minor offences had been set up. Courts had also been set up to deal with violence against women and domestic violence. The Ecuadorian Judicial School – covering prosecutors, judges and defence counsel – were currently providing training for law enforcement officials on violence against women and domestic violence issues, Ms. Artieda added.

Turning to deprivation of liberty issues, Ms. Artieda noted that reforms had been ongoing for three years now in that area. The first year had focused on infrastructure and the second on training for prison staff. To ensure that detained persons enjoyed their rights under the Covenant, including the right to contact their family, in 2007 they had been working through the Ombudsman's Office to provide free legal advice to everyone who needed it, including for illegal aliens. In addition, a programme for the implementation of the Constitutional guarantees had been set up with the involvement of the Ministry of Justice, the Public Prosecutor's Office and others. There had also been restrictions placed on the use of preventive detention. In March 2009, the Code of Criminal Procedure had been revised, and a guide for the implementation of preventive detention had been issued.

With respect to measures to avoid the detention of children in the same cells as adults, the Government was working on the construction of holding areas for juvenile offenders, Ms. Artieda concluded.

Oral Questions by the Committee Experts

Experts then asked a series of further questions concerning, among others, the apparent lack of coordination between the ministries that should have been involved in drawing up the report. The report appeared to be just presented and drawn up by the Ministry of Justice and Human Rights alone, and not by the State as a whole.

An Expert noted that in the new Constitution of 2008, there were a number of new provisions that were different from the earlier text with regard to human rights. For example, there was no mention of racial discrimination in the Constitution, which simply mentioned ethnicity. Furthermore, there was no instrument in Ecuadorian law that specifically addressed the issue of racial discrimination.

Noting that there had been several cases in which states of emergency had been declared in Ecuador since 2004, Experts were concerned about a lack of information in that area in the report, in particular as the restrictions imposed in such situations rendered people particularly vulnerable to human rights violations. Experts asked for the specific cases and conditions in which those states of emergency had been declared, in order to judge whether there had been discrimination. It was not enough to simply cite the relevant law.

Experts also asked a number of status-of-women and gender-violence-related questions, including the specific punishments for domestic violence; what mechanisms existed to provide training for officials to help them stop domestic violence; whether any anti-domestic violence publicity campaigns had been carried out; what measures had been taken to address female illiteracy, which impacted on their status in general; vaginal examinations carried out in the context of anti-drug policy, which were seen as a human rights violation; and reports that women were particularly vulnerable to discrimination in police custody. Additional concerns in this area were the fact that quotas for women in public office had not been filled; and how had the National Reproductive and Sexual Rights Health Plan ensured adequate access to and effective provision of health care for pregnant women.

An Expert noted with concern that there had been no reply to the Committee's request for statistics on reports of torture and ill-treatment of detainees, although such issues were subjects of cases at both the domestic and regional level, including at the Inter-American Court of Human Rights. Similarly, no information had been provided on whether, in fact, fundamental legal safeguards for persons detained by the police were upheld – not on the actual guarantees themselves but on the status of their implementation on the ground – despite Inter-American Court of Human Rights judgements against Ecuador on this score. Additionally of concern was the effective provision of the right to consular assistance to detainees. According to information, that right was not complied with in many cases, or it was not complied with effectively. What specifically were the rights accorded to detainees, an Expert asked? How was a detainee defined and what was the timeframe within which detainees had to be afforded those rights, for example, the right to speak with a lawyer?

Answers by the Delegation

Responding to these and other questions, the delegation explained that the Ministry of Justice and Human Rights, which was responsible for coordinating the drafting of the report, had only recently been set up. It was now working to gather the information needed to respond to the Committee's questions. Future reports would have better coordination. However, much of the information contained in the report had been received directly from the bodies concerned, such as the Council of the Judiciary, the Ombudsman's Office and so on. So they had received the views of the other state institutions in drawing up the report.

Regarding race and ethnicity, the delegation noted that the consultations on the new Constitution had been wide-ranging and in-depth. It had been determined that race was a category of the past, and the people had felt that they should not be defined by race, but by their ethnicity.

A Commission had been set up to investigate indigenous complaints and it was currently looking into a number of issues. On the complaint involving the indigenous person who had been shot in a scuffle with the police, an ensuing investigation had determined that he had been shot with a bullet that the police did not use. He had effectively been shot by one of his colleagues, by accident. The Commission was also carrying out a number of other activities, including a study on the compatibility between the regular justice system and traditional justice mechanisms.

In Ecuador preventive detention could last up to six months when the charge carried a possible 12-month sentence, and up to 12 months where that was longer. The delegation agreed that there had been a problem with the number and length of preventive detentions. Therefore, since 2008, a number of steps had been taken, including an improvement in the geographical distribution of the judiciary; protocols for hearings, so that they could be handled more flexibly; and an increase in the number of the Public Prosecutor's staff. As a result, the time for bringing cases to court had improved.

Prison overcrowding had also been dealt with. In 2007, prisons were at 217 per cent of established levels, with only 3 square metres for prisoners' daily needs; that had been reduced to 100 per cent today. They were also building new facilities for social rehabilitation, which would be done at the regional level so that people could retain their family links. A further measure to control drugs being taken into the centres had been vaginal searches. However, a Presidential Decree had prohibited that practice and compliance with the decree was being monitored. While that practice had not been completely stamped out, it had already largely been eliminated.

There were 13 centres for adolescent offenders spread fairly evenly across the country, so that adolescents subject to a rehabilitation order could remain in touch with their families. They also ensured that those who were being detained were held separately from those who were under sentence.

Regarding the elections quotas for women, the delegation disagreed that the decisions of the National Electoral Board were at odds with the Covenant. Detailed statistics of women's participation in elections for and election to various bodies were provided. It was noted that, for the National Assembly, 46.7 per cent of women were registered, of whom 40 per cent were elected.

Further Questions by Committee Experts

In a round of follow-up questions and comments on the same issues, Experts asked what kind of external monitoring of police detentions existed and how was it carried out in practice? The Committee was still receiving reports of persons being held in Ecuador without contact with the outside world, as well as reports of persons being held beyond the established time limits.

Regarding measures to combat violence against women, it had been said that legislation had been put in place in the area. What then were the specific offences that had been established in this area? A special concern related to rape within indigenous communities, and measures taken by the State to combat that phenomenon.

Answers by the Delegation

The delegation said that, regarding information provided to detainees on consular assistance, there were posters in the various detention centres on the right to consular assistance in the police stations.

On women's participation in government at the executive level, the delegation said that 26 per cent of the executive staff in the administration were women.

As to how long someone could be held before being sent to a detention centre, in an in flagrante situation a person could be held for 24 hours before being brought before a judge. They had to be informed of their rights and a lawyer had to be provided to them. Regarding checks to ensure legal guarantees were met, the police officer who arrested someone, before they turned them over on remand, had to ensure that they had not been held longer than 24 hours. But there was no external monitoring to ensure that that process was complied with. There were only State measures.

As for specific measures to combat violence against women, feminicide was one of the new crimes that had been defined in law. To help ensure that cases of violence against women were prosecuted, they were working to shorten the length of time it took to bring such cases to court.

On practical implementation of detention rules, the delegation said that the Judge of Criminal Guarantees was responsible for determining whether a sentence was legal or not. A police body, again the Judge on Criminal Guarantees, also monitored the detention procedures.

With respect to human trafficking, in 2005 the Congress had approved legislation combating trafficking in persons, which prohibited trafficking, inter alia, for reasons of sexual exploitation, begging or pornography. There had been prosecutions and convictions brought, and the Government attached priority establishment of an anti-trafficking unit within the National Police. Some 120 individuals had so far been rescued from the grips of traffickers.

As for reparations for victims, the State would adopt preventive measures and measures to eradicate the crime of trafficking and to rehabilitate the victims, the delegation said. Victims received special protection with steps to prevent them from being revictimized, threatened or intimidated. It also provided for reparations. A unit on protection of victims had been established under the Public Prosecutor's Office, with assistance from civil society. Some $ 35 million had been allocated to the Public Prosecutor's Office to improve its system of care for users, including through improved research, and the creation of new crime laboratories. Assistance was provided to victims even if their status was irregular, and the International Organization for Migration was providing financial assistance to victims.

Regarding refuge and asylum, Ecuador had adopted a number of measures not only to eliminate discrimination and ensure the constitutional guarantees, but to ensure human rights and the integrity of the individual. Requesting a certificate of a criminal record of asylum-seekers had therefore been banned in conjunction with the principle of non-refoulement, as set out in the Constitution.

The delegation said that the Ministry of Interior, Police and Worship had taken numerous steps to ensure the minimum safeguards during the deportation procedure. The Units and Sub-Units of the police had been requested not to undertake the deportation of aliens with family ties to Ecuador. In addition, a protocol on deportation procedures was currently being drawn up, in conformity with the new provisions set out in the Constitution.

The Bill on Public Defenders was part of the organic code that had been approved in March 2009. Implementation of a system of public defenders, which would provide free legal assistance throughout the country, had already commenced. This year the unit governing the public defenders had received a budget of $ 2.5 million to cover staff costs and related expenses. There were some 53 public defenders, handling some 8,000 cases a year.

As for independence of the judiciary, the delegation said that the Government had improved the organic structure of the judiciary, which looked to the whole system of judicial careers and had provided for the establishment of schools of the judiciary. One of the premises of a career in the judiciary was to provide multi-level assessment: one by society; one by academia; and one that tracked the actual output of the judge concerned. The plan for implementing that assessment procedure had funding for three years from the Government, with assistance from international donors.

The preparation of prosecutions under the Code of Criminal Procedure had a time limit of 90 days. After that period the judge had to declare the case concluded. Measures after the deadline had no standing. If steps were not taken within the deadline, the judge would also sanction the prosecutor to a fine and order him or her to comply with the requirements. A preliminary hearing had to be held between 10 and 20 days of the communication of the prosecution.

Concerning information about deaths caused by the army or police during public demonstrations, the delegation pointed out that, regarding the protests that had taken place as of 2008, two fact-finding commissions had been set up – one in Yuma, and one to investigate activities in Napo Province. To date, there had been no convictions of those accused of use of excessive force in public demonstrations.

Further Questions by Committee Experts

In a second round of questions and comments, an Expert noted that there had been a suspension of diplomatic relations between Colombia and Ecuador, which had lasted for a few years now. He was concerned about the effect that had on Colombians living in Ecuador. Also noted was a divergence in statistics on the number of Colombians in Ecuador. The Ecuadorian Government said that there were half a million Colombians in the country, whereas the United Nations High Commissioner for Refugees had said there were 180,000 Colombians in Ecuador, and that the State needed to provide them with more assistance. Did the Government have a plan to appeal for international assistance to take care of the Colombian refugees?

On the indigenous question, an Expert wanted further details of measures taken to implement Constitutional guarantees of non-discrimination against member of indigenous communities and Afro-descendants.

Regarding the reform of the judiciary, an Expert noted that that had been carried out in accordance with the recommendations of the United Nations Special Rapporteur on the independence of judges and lawyers. However, what was missing was any information on prosecutions brought against members of the judiciary, and the delegation was asked to provide details. An Expert had also been concerned by the fact that, following a political dispute, the Congress had dismissed all nine Judges on the Constitutional Court.

With respect to military and civilian justice, an Expert asked if military courts for civilians still existed in Ecuador? In addition, were the cases that were currently being investigated on excessive use of force and deaths caused by the police and the military during protests being brought before military or civilian courts?

The Committee had received reports of the treatment of lesbians allegedly for the purpose of making them change their sexual orientation. Could the delegation therefore detail what it was doing to ensure the non-discrimination against individuals on the basis of their sexual orientation?

Furthermore, what steps had been taken to ensure that human rights non-governmental organizations and journalists were protected? An Expert was concerned about "vaguenesses" in the new Constitution regarding guarantees for journalists, and also that the provisions in the law on journalists could be construed to mean that the State had a role in regulating the profession (i.e. journalists had to present a certificate from the Ministry of Education in order to obtain a licence). Another Expert was concerned about the criminal libel statute and the fact that a number of libel cases were prosecuted criminally, and had resulted in prison sentences, which was simply too restrictive of freedom of speech.

An Expert was concerned that the Catholic religion received special status in Ecuador and had greater protections than other religious groups in the country. Moreover, in Ecuador registration of religious groups was strongly encouraged. His concern was that, as part of the registration process, the State had to determine whether the group was of a "true" religious character. That was counter to the Covenant, as it set up the State as a judge of religious beliefs. Moreover, as the State could deny a request for registration, were there legal remedies available? Could decisions be appealed?

In a follow-up question on detention issues, an Expert understood that individuals in police detention had the right to a lawyer, but asked for more information on whether lawyers always had full access to prisoners at all times.

What were the reasons for the four-year delay in providing the indigenous peoples of Sarayaco with protection cards? In addition, what access did indigenous women have to free contraceptives and reproductive planning services?

Finally, an Expert asked about the status of the cases before the Truth Commission, tasked with investigating the abuses carried out under the previous administrations, and in particular whether senior officials would be prosecuted and the families of victims compensated.

Answers by the Delegation

The delegation, responding to the question on relations with Colombia, noted that in recent weeks discussions had been ongoing and it was hoped that in the near future there would be an improvement in diplomatic relations between the two countries. However, as the President had said, the breach had been a diplomatic one and had not extended to individuals. Colombians had been welcomed into Ecuador as neighbours, and Ecuador had been flagged as a pilot country in a global needs assessment carried out by UNHCR.

UNHCR, in cooperation with the authorities, had recently carried out a registration programme for Colombians in the country. It was true, the delegation confirmed, that following that assessment, UNHCR had found 180,000 to 200,000 Colombians in Ecuador in need of protection measures. But UNHCR had also noted the welcome that Ecuador had extended to those refugees, who were not kept in centres, and who were free to benefit from health, education and medical services along with Ecuadorians.

Among rights granted to indigenous peoples under the Constitution were the right to their lands, exemption from taxes, and the right to be consulted in matters that affected them, the delegation stressed. The Constitution also recognized the Councils of Equality, which addressed matters of practical concern to indigenous communities, people of African descent, persons with disability and others.

As for traditional justice, there was currently a study being carried out into traditional legal mechanisms, with a view to seeing how that could be incorporated and harmonized with the national law.

On instances of corruption and conviction of judges, over the last two years, two judges from the national courts had been dismissed by the Supreme Court, and some judges of courts of first instance had been punished. A judge in the Galapagos had been dismissed, and another subjected to administrative measures.

As for the crime of disrespect – criminal defamation – that law had been abolished at the end of 2007, the delegation said.

Regarding protection for homosexuals, lesbians and transgendered individuals from discrimination, the Constitution of 2008 guaranteed that all persons were equal, and that no one could be discriminated against, inter alia, on the basis of sexual orientation, HIV status or any other temporary or permanent distinction.

In connection with the use of tear gas to disperse protestors, there had been a number of political events during which the police had used tear gas and this had led rise to allegations of excessive use of force. However, under the new police plan, police were not allowed to use any excessively repressive devices such as tear gas, to control those crowds. As an example, during the most recent protests in Napo Province, the greatest number of those injured had been the police. The Police had not been carrying firearms or using tear gas. So they were working on putting into place new rules to guarantee the safety of protestors.

On religion, the delegation noted that most Ecuadorians were Catholics, but that it was not a State religion. The 2008 Constitution guaranteed religious freedom, including the right to express or change one's religion, as well as promoted tolerance for those without religion.

Regarding states of emergency, there were stringent rules set out which called for a strict scrutiny of the individual situation and a balancing of the degree to which rights might be suspended or limited, the delegation said. During states of emergency the rights to inviolability of domicile, inviolability of correspondence, freedom of movement, freedom of assembly and freedom of the press could be restricted by the President. The length of a state of emergency could not exceed two years.

Concerning the 1975 law on journalists, that basically simply established an education requirement for those wishing to exercise the profession of journalism, by requiring proof of one's academic qualifications in order to obtain a press card.

Providing a preliminary answer on the question of the dismissal of the nine judges of the Constitutional Court, the delegation said that that had been an act of the National Congress. Judicial actions had been brought against the decision of the National Congress at that time, and some of those proceedings were still ongoing. The delegation would like to send a record of those proceedings to the Committee.

The Truth Commission would wrap up its work in December this year, the delegation said. Following that, provision would be made for judicial proceedings concerning discoveries made by the Truth Commission and at that point decisions would be taken regarding reparations.

As for the military courts, there were no military courts anymore, as they had a single, unified jurisdiction in Ecuador, the delegation explained. At any rate, even in the past, the military and police courts had only had jurisdiction over military and police personnel and not over civilians.


For use of the information media; not an official record

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