COMMITTEE AGAINST TORTURE

CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
UNDER ARTICLE 19 OF THE CONVENTION

Third periodic reports due in 1997

Addendum

ECUADOR * **

[2 June 2003]

* For the initial report submitted by the Government of Ecuador, see CAT/C/7/Add.7; for its consideration, see CAT/C/SR.61, and Official Records of the General Assembly, Forty‑sixth Session, Supplement No. 46 (A/46/46), paras. 118-128. An additional report (CAT/C/7/Add.11 and 13) was submitted by the Government of Ecuador and considered by the Committee. See documents CAT/C/SR.89 and 90/Add.1, and Official Records of the General Assembly, Forty-seventh Session, Supplement No. 44 (A/47/44), paras. 60-92.

For the second periodic report, see CAT/C/20/Add.1; for its consideration, see CAT/C/SR.164 and 165, and Official Records of the General Assembly, Forty-ninth Session, Supplement No. 44 (A/49/44), paras. 97-105.

** In accordance with the information transmitted to States parties regarding the processing of their reports, the present document was not formally edited before being sent to the United Nations translation services.

Introduction

1. Ecuador is a State party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. As such, in accordance with article 19, paragraph 1, of the Convention, Ecuador is submitting its third periodic report, due on 28 April 1997, containing information for the period up to and including 2001, for consideration by the Committee against Torture.

2. The report is also intended to address the concerns and recommendations expressed by the Committee in 1993 following consideration of the second periodic report, the more significant of which are indicated below.

Subjects of concern

3. “Many allegations received from various non-governmental organizations regarding torture, which is reportedly practised in a number of places of detention and prisons, particularly in the premises of the Crime Investigation Office.”

As stated in the information provided under article 12, the Crime Investigation Office has been abolished and the Office of the Public Prosecutor has taken over responsibility for investigating criminal offences, during both pre-trial and trial proceedings.

4. “The existence of officials referred to as ‘judges’ who are empowered to try cases without belonging to the judiciary and who consequently do not provide safeguards of independence.”

The Constitution in force since 1998 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. Consequently, the judiciary will have sole responsibility for criminal trials.

Recommendations

5. “Take fundamental and urgent steps for the complete eradication of torture and other similar treatment. To that end, the Government should ensure that all forms of torture as defined in article 1 of the Convention are offences under criminal law.”

As stated in the information provided under articles 2, 4 and 16, 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.

6. “Implement (…) the legislative reforms undertaken to place the criminal justice system (from the investigation of offences to the serving of sentences) under the direct supervision of independent members of the judiciary and ensure that they can quickly investigate reported or suspected cases of torture or ill-treatment.”

In recent years Ecuador has carried out reforms of the Criminal Code and the Code of Criminal Procedure which, as can be seen from the information provided under articles 4 and 12, have placed the investigation of cases of torture and other cruel, inhuman or degrading treatment under the responsibility of the judiciary and the Public Prosecutor’s Office.

Information on new measures and new developments relating to the implementation of the Convention

Article 1

7. 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:

“Article 23. Without prejudice to the rights established by the present Constitution and by international instruments in force, the State shall recognize and guarantee the following rights to persons:

1. Inviolability of life. The death penalty shall not exist.

2. Personal integrity. The following are prohibited: cruel punishment, torture; all treatment that is inhuman or degrading, or involves physical, psychological or sexual violence or coercion, or the improper use of human genetic material.

The State shall take the necessary steps to prevent, eliminate and punish, in particular, violence against children, young persons, women and older persons.

Genocide, torture, enforced disappearance, abduction and homicide for political reasons or reasons of belief are imprescriptible with regard to both proceedings and penalties. Such offences may not be the subject of a pardon or amnesty. In such cases compliance with the orders of a superior shall not constitute exemption from liability.”

8. The above article of the Constitution is sufficiently broad in scope and yet specific enough to encompass all elements of article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. It prohibits the use of physical punishment, including the death penalty, which has been abolished under Ecuadorian law since 1878, as well as mental or psychological punishment. From the above article and the information provided below it follows that physical, psychological and sexual violence are also considered cruel, inhuman or degrading treatment under Ecuadorian law. These reforms address one of the concerns expressed by the Committee concerning the absence in domestic legislation of a definition of mental torture.

9. Ecuador has also signed a number of international instruments that strengthen human rights protection for its citizens. With regard to torture, it has ratified the Inter-American Convention to Prevent and Punish Torture, published in Official Gazette No. 360 of 13 January 2000, which is far broader in scope than the Convention against Torture.

10. As a reflection of its unwavering commitment to the progressive development of international law, Ecuador has also ratified the Rome Statute of the International Criminal Court, which was published in Official Gazette No. 699 of 7 November 2002, and thereby became part of Ecuadorian law.

11. Ecuador has also ratified the following related international instruments, which form part of its domestic legislation:

International Covenant on Civil and Political Rights (art. 5), Official Gazette No. 140 of 14 October 1966;

International Convention on the Elimination of All Forms of Racial Discrimination (art. 15, paras. 2 and 3), Official Gazette No. 140 of 14 October 1966;

Convention on the Elimination of All Forms of Discrimination against Women (art. 12, para. 2), Official Gazette No. 132 of 2 December 1981;

Convention on the Rights of the Child (arts. 36 (d) and 40 (d)), Official Gazette No. 387 of 2 March 1990; and

International Labour Organization Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries, Official Gazette No. 206 of 7 June 1999.

12. With respect to one of the concerns of the Committee concerning the relationship between the Convention and national legislation, various constitutional provisions state that international treaties form part of domestic law; thus, article 18 of the Constitution reads:

“Article 18. The rights and guarantees laid down in this Constitution and in the international instruments in force shall be directly and immediately applicable before any judge, court or authority.

Constitutional rights and guarantees shall be interpreted in such a way as to facilitate their most effective enjoyment. No authority shall impose conditions or requirements on the enjoyment of these rights except for those established by the Constitution or by law.

The absence of a law shall not serve to justify violation of or disregard for the rights laid down in the Constitution, to desist from legal action against such violation or disregard, or to deny recognition of such rights.

No law shall restrict the enjoyment of constitutional rights and guarantees.”

13. Moreover, the international human rights law enshrined in the international instruments ratified by Ecuador is not only an integral part of its domestic legislation and therefore directly applicable by the competent authorities but, as stated above, has constitutional status under article 163 of the Constitution:

“Article 163. The norms contained in international treaties and conventions, once promulgated in the Official Gazette, shall form part of the domestic legal order and shall take precedence over laws and other norms of a lower status.”

14. Consequently, in accordance with the above constitutional provisions, the provisions of the Convention may be invoked before the courts and other administrative authorities, and may be applied directly.

15. These constitutional guarantees are complemented by a series of criminal provisions that have been cited in the previous reports submitted by Ecuador. It should be pointed out that criminal legislation has been strengthened, especially with regard to procedural law, as can be seen below in connection with article 4, so as to expedite the trial of the most serious offences, such as torture.

16. In conclusion, Ecuadorian legislation expressly prohibits any deliberate act designed to inflict serious pain or suffering, including, as stated above, physical, mental or psychological pain or suffering, in accordance with the provisions of article 1 of the Convention.

17. In addition, and in accordance with article 1, paragraph 2, of the Convention, Ecuadorian legislation contains constitutional provisions that go beyond the scope of those contained in the Convention, in particular, article 19 of the Constitution:

“Article 19. The rights and guarantees laid down in the Constitution and in international instruments do not exclude others intrinsic to the human person and necessary for his psychological and physical development.”

18. Ecuador has made a great effort to adopt legal, administrative, judicial and other measures to prevent acts of torture in the country.

Legal measures

19. At the constitutional level, provisions have been adopted that prevent acts of torture and other cruel, inhuman or degrading treatment:

“Article 24.4. Anyone who is arrested shall have the right to be fully informed of the reasons for the arrest, the identity of the authority ordering the arrest, the identity of the officers making the arrest and the identity of those conducting questioning.

The person arrested shall be informed of his right to remain silent, to request the presence of counsel, and to communicate with a family member or any other person of his choice. Anyone who arrests a person, with or without a written court order, and who fails to provide confirmation that the detainee has been handed over immediately to the competent authority shall be penalized.”

20. As will be seen below, under article 11, this provision makes it obligatory to identify the officer making an arrest or conducting questioning, prohibits keeping a person who has been
arrested incommunicado, and obliges law enforcement officers to hand the person over immediately to the authority responsible for initiating an investigation and, if appropriate, criminal proceedings. This prevents cases of torture and ill-treatment by arresting officers.

“Article 24.5. No one may be questioned, not even for the purposes of an investigation by the Office of the Public Prosecutor, or by any police or any other authority, without the presence of private defence counsel, or counsel appointed by the State if the person concerned is unable to appoint his own defence counsel. Any judicial, pre-trial or administrative proceedings that fail to comply with this requirement shall lack evidentiary effect.”

21. This constitutional provision also prevents acts of torture by requiring the presence of a lawyer during any investigation; this, as will be seen also under article 15, complies with the provision of the Convention that prohibits any statement made as a result of torture from being invoked as evidence in any proceedings.

“Article 24.6. No one may be deprived of liberty, except pursuant to a written order by a competent judge, in the circumstances, for the period and in accordance with the formalities prescribed by law, except in case of flagrante delicto, when a person may also not be held without a court order, for more than 24 hours. No one may be held incommunicado.”

22. This norm addresses some of the concerns raised by the Committee in connection with previous reports regarding who orders an arrest, how long a person may be held without a court order, how long a person may be held incommunicado, and how much time may elapse before a person is taken before a judge. An arrest is ordered by a judge; no one can be detained for more than 24 hours without a court order; no one may be held incommunicado; the detainee must be taken before the judicial authority immediately.

“Article 24.8. Pre-trial detention may not exceed six months in respect of offences punishable by detention, or one year in respect of offences punishable by imprisonment. Should these limits be exceeded, the pre-trial detention order shall be void, in which case the liability of the judge hearing the case is engaged.”

23. The periods of six months and one year have been determined on the basis of the time required to conclude a case under criminal law. These periods must be respected whenever the judicial authority has initiated criminal proceedings. As stated above, without a court order a person may not be detained for 24 hours. In addition to preventing torture in detention and prison centres, as will be seen under article 11 this provision has led to a significant decrease in prison overcrowding, because judges are forced to complete trials within the established time frame and this addresses another of the Committee’s concerns.

“Article 24.9. During a trial, no one can be obliged to testify against his spouse or relatives to the fourth degree by blood or second degree by marriage, or compelled to testify against himself, in matters that can result in criminal liability.”

24. In addition to the constitutional principles and provisions that guide the State’s actions in this area, we wish to draw attention to other measures adopted in response to the provisions of article 2 of the Convention. This section should be read in conjunction with the two previous reports submitted by Ecuador.

25. First, we wish to cite a specific legal measure that judges have been implementing since the entry into force of the new Constitution, based on transitional provision No. 28, which states:

“Those accused of offences punishable by imprisonment who have currently been detained for more than one year without having been sentenced shall be released immediately without prejudice to the continuation of criminal proceeding until their conclusion.

The judges who are hearing the corresponding criminal proceeding shall be responsible for the application of this provision.

The National Council of the Judiciary shall penalize judges who have acted negligently in the conduct of proceedings.”

26. This provision is intended to counter delays in judicial proceedings which, although on occasion justified owing to their complexity, may occasion unnecessary suffering to the detainee. This provision must be read in conjunction with the relevant provisions of the current Criminal Code:

“Article 114 A. Anyone detained and not in receipt of a decision for stay of proceedings or referral to trial for a period equal to or greater than one third of the period established by the Criminal Code as the maximum sentence for the offence for which they were prosecuted shall immediately be released by the trial judge.

Similarly, anyone who has remained in detention without having been sentenced for a period equal to or greater than half that provided for by the Criminal Code as the maximum sentence for the offence for which they were prosecuted shall immediately be released by the criminal court conducting the trial.

These provisions do not apply to those tried for offences punishable under the Narcotic Drugs and Psychotropic Substances Act.”

27. The final paragraph of this article, added to the Criminal Code by Act No. 4, published in Official Gazette No. 22 of 9 September 1992, was declared unconstitutional by decision No. 119 of the Constitutional Court, published in Official Gazette No. 222 of 24 December 1997, as the result of which its effect was suspended, and the article is being implemented in a general sense.

28. Articles 114 B, C and D of the Criminal Code, which supplement the constitutional provision referred to, should also be cited:

“Article 114 B. In any event the director of the social rehabilitation centre in which the detainee is held shall, on the day following the deadline indicated in the previous article, notify this fact to the judge or court hearing the case so that the immediate release of the detainee may be ordered.

Should the release order issued by the judge or court not be received within 24 hours of the notification given, the director of the rehabilitation centre shall immediately release the detainee, and shall communicate this fact in writing to the judge or criminal court and the president of the district supreme court.”

“Article 114 C. The Supreme Court, as budget allocations permit, shall, within six months of the entry into force of this law, and on the basis of the information and resources available to it, establish, in judicial districts, as appropriate, as many criminal courts and tribunals as necessary such that each such court shall be required to hear no more than 400 cases a year.”

“Article 114 D. Judges and members of criminal courts that do not conclude the cases referred to them within the time frames established in articles 231, 251, 260, 271 and 324 of the Code of Criminal Procedure shall immediately be disciplined by the President of the Supreme Court and shall be fined an amount equivalent to 50 per cent of the general minimum wage on each of the first three occasions on which such delays occur, and shall be removed from their functions on the fourth occasion, in which case they shall not be reinstated for five years.

These sanctions shall be imposed on the same day on which the President of the Supreme Court is informed of the delay, and shall engage his personal financial liability.”

29. It should be noted that these provisions do not reflect any value judgements regarding the functioning of the judiciary or undermine in any way whatsoever their authority to conduct the administration of justice, but are designed only to strengthen the right to personal freedom. This is in response to a further observation by the Committee in this regard.

30. Detailed information is provided under article 4 on the criminal legislation provisions that prohibit and prevent torture and other cruel, inhuman or degrading treatment or punishment, and under article 12 on the substantive constitutional and legal reforms of the bodies responsible for police and pre-trial investigation, these representing the outcome of changes to domestic legislation in recent years.

31. Further, as provided for in article 2, paragraph 2, of the Convention, it should be noted that 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, as follows:

“Article 181. Once a state of emergency is declared, the President may assume all or any of the following powers:

6. Suspension or limitation of any of the rights set forth in articles 23.9, 23.12, 23.13, 23.14 and 23.19, and article 24.9 of the Constitution; but in no circumstances may he order the deportation or confinement of a person other than in a provincial capital or a region in which the person lives.”

32. The rights referred to in this provision refer specifically to freedom of expression, inviolability of the home, privacy of correspondence, movement throughout the country, freedom of association and maximum periods of pre-trial detention. That is, guarantees against torture are maintained even if a state of emergency is declared and may not be suspended or limited in any way.

33. Under article 2, paragraph 3 of the Convention, a further legislative measure adopted pursuant to an observation by the Committee relates to the defence of compliance with orders of a superior. In this connection article 185 of the 1998 Constitution provides as follows:

“Article 185. Law enforcement agencies shall confine themselves to complying with orders and shall have no decision-making capacity. Senior officials shall be responsible for the orders they give, but compliance with the orders of a superior shall not exempt those carrying out the orders from liability in the event of violation of the rights guaranteed by the Constitution and the law.”

34. Similarly, as previously stated, article 23 of the Constitution also refers in part to this subject and states that:

[…] “genocide, torture, enforced disappearance, abduction and homicide for political reasons or reasons of belief are imprescriptible with regard to both proceedings and penalties. Such offences may not be the subject of a pardon or amnesty. In such cases compliance with the orders of a superior shall not constitute exemption from liability.” […]

35. Thus, article 214 of the Criminal Code, which previously might have given rise to an interpretation that due obedience might serve as a pretext for anyone carrying out the orders of a superior, has no validity whatsoever with regard to the rights guaranteed by the Constitution and by law. Accordingly, with regard to the offence of torture, penalties would also apply to the person giving the illegal order as well as to the person executing it.

Judicial measures

36. The Government acknowledges that in the period covered by this report human rights violations 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, as indicated in the following table.

Cases of torture and amicable settlement before the Inter-American Commission on human rights

37. The table, which contains data to 2001, refers to some cases in which the State, pursuant to quasi-judicial proceedings before the Inter-American Commission on Human Rights, compensated the victims.

38. Byron Roberto Cañaveral Chiluisa. On 26 May 1993 Mr. Cañaveral was arrested by law enforcement officers. A medical certificate reported the presence of injuries as a result of ill‑treatment while in detention. The Government compensated Mr. Cañaveral and undertook to conduct judicial proceedings to punish those responsible.

39. Ángelo Javier Ruales Paredes. On 3 July 1993 Mr. Paredes was arrested by law enforcement officers while taking parts from a vehicle. The officers who conducted the routine questioning admitted to having committed acts of physical aggression. The Government compensated Mr. Ruales and those responsible were punished in accordance with the law.

40. Manuel Inocencio Lalvay Guamán. On 6 April 1993 Mr. Lalvay Guamán was arrested by law enforcement officers following a complaint that he had committed an offence. He claimed that he was subjected to ill-treatment. The State could not refute the accusation; it compensated Mr. Lalvay and undertook to proceed with the necessary investigation and, if appropriate, to punish those responsible.

41. Marcia Irene Clavijo Tapia. Ms. Clavijo Tapia was arrested on 17 May 1993 in a drugs sweep. She claims that she was tortured. The State was unable to refute her assertions, compensated the victim, and undertook to proceed with the necessary investigation and, if appropriate, to punish those responsible.

42. Juan Clímaco Cuellar et al. Mr. Cuellar and 10 other individuals were arrested by the Ecuadorian army between 18 and 20 December 1993 during an investigation into an attack on a patrol in Putumayo canton. They alleged that they were subjected to physical and psychological torture. The State was unable to prove that those responsible were not State agents. The Government compensated the victims and undertook to initiate proceedings, where not time‑barred, that would lead to the punishment of those responsible.

43. Restrepo Arismendy. On 8 January 1988 the Carlos Santiago and Pedro Andrés Restrepo Arismendy brothers were arrested by the National Police and subsequently disappeared while in police custody. Following an investigation that lasted several years, the State acknowledged its international responsibility for the torture and disappearance of the Restrepo brothers. The State compensated their legal representative and undertook to take appropriate legal and other action to locate the bodies of the Restrepo brothers.

44. Rodrigo Elicio Muñoz Arcos et al. Mr. Muñoz, a Colombian national, and a further three Colombian citizens, were arrested by law enforcement officers on 26 August 1993, accused of theft, attempted abduction and homicide. They claimed that they were tortured. The State was unable to refute the allegations and thus compensated the four alleged victims and undertook to take action to punish those allegedly responsible.

45. Washington Ayora Rodríguez. Convicted of theft in 1989, he was arrested on suspicion of the same offence by law enforcement officers on 14 February 1994. He claims that he was tortured, as attested to by a medical certificate. The State compensated him in respect of the incident, and undertook to investigate and, if appropriate, punish those allegedly responsible.

46. Ángel Reiniero Vega Jiménez. Mr. Vega Jiménez was arrested by INTERPOL agents on 5 May 1994. He was allegedly arrested and subjected to torture and ill-treatment that, according to his representatives, resulted in his death. The State was unable to refute the accusations, and, accordingly, paid financial compensation and undertook to conduct the necessary investigation and, if necessary, to punish those responsible.

Cases before the United Nations Human Rights Committee

47. José Luis García Fuenzalida (480/1991) and Jorge Villacrés Ortega (481/1991). Pursuant to the Views adopted by the Committee on 15 August 1996 and 24 April 1997, the State accepted the Committee’s recommendations and provided financial compensation to both applicants.

Pending cases

48. Patricio Ordoñez and Jairo Corte. Arbitrary detention and ill-treatment by the police in Quito. The complainants claimed that they were beaten on 2 June 2001 by officers of the National Police, merely for being homosexuals. The case is being investigated by the criminal investigation police.

49. Narda Torres Arboleda and Adriana Chávez. Ill-treatment at the hands of unknown perpetrators in Quito. They were beaten in June 2001 by unknown individuals merely for being lesbians. They had obtained police protection orders. The case is being investigated by the police authorities. The assumed perpetrators belong to a non-State paramilitary group.

50. Víctor Arreaga Aragón, a 20-year-old transvestite, was beaten and murdered; he was shot three times by unknown individuals in August 2001 in Guayaquil. An investigation found that the crime had been committed by unknown individuals, presumably members of a non-State paramilitary group.

51. Darío Méndez (fictitious name). In September 2001 Mr. Méndez was kidnapped in Guayaquil by armed, hooded men who insulted him, and beat and raped him. The case is under investigation by the criminal investigation police; the authors of these and other incidents involving attacks on homosexuals, lesbians and transvestites are presumed to be members of a paramilitary group.

52. In a further 65 cases of human rights violations involving lesbians, homosexuals, bisexuals and transsexuals committed in the city of Guayaquil between October 2000 and April 2001, the authorities reported in June 2001 the dismissal of police officers, under sentences handed down by the National Police Disciplinary Tribunal, for having committed these offences.

Administrative measures

53. 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 (art. 1). The Plan is universal, mandatory and comprehensive. The Government and civil society (art. 2) are responsible for compliance with and implementation of the Plan. With respect to torture, in article 4.1, the Plan provides that:

“To ensure that detention, investigation and penitentiary systems prohibit torture and physical and psychological ill-treatment as means of investigation and punishment.”

54. For the attainment of this objective, the Plan obliges the State to:

“Article 5.1. Propose reforms, through plans, programmes and changes to the legal system, to the current arrangements for detention, investigation and imprisonment.”

55. As already stated, the State has been implementing these objectives and commitments through constitutional, legal and judicial measures, as well as through other measures such as prevention and education, as noted in this report under article 10.

56. Further, pursuant to Executive Decree No. 3493, published in Official Gazette No. 735 of 31 December 2002, the Human Rights Coordination Commission was established as a coordinating mechanism for human rights issues that are the responsibility of the Ecuadorian State and for the fulfilment of Ecuador’s commitments to the bodies and organs established under international human rights instruments. The Commission is responsible for preparing and transmitting relevant information on cases of human rights violations committed in the country and for preparing periodic State reports to the oversight bodies for international human rights treaties to which Ecuador is party.

57. Lastly, on 11 December 2002, Ecuador sent a communication to the United Nations High Commissioner for Human Rights in which Ecuador extended an open, standing invitation to all rapporteurs, representatives, experts and other United Nations human rights mechanisms to visit Ecuador whenever necessary in the discharge of their respective mandates and establish any contacts they deemed appropriate with persons and institutions based or established in the country.

58. While, since the submission of the second report, the State has made major changes in its domestic legislation and in the structure of criminal investigation bodies as well as in the administrative arrangements referred to earlier to prevent and eradicate torture, cases of torture and ill-treatment still occur, committed by government agents and private individuals, in the latter case owing to intolerance and discrimination. The State is aware that there is a need to strengthen the National Human Rights Plan, as a State policy, to eradicate such practices once and for all, not only through legal reform but also through the adoption of targeted administrative measures. The work undertaken with civil society since the adoption of the Plan more than four years ago has identified the need to strengthen the education and training programmes begun in recent years for police and prison staff, and the need to improve criminal investigation techniques on the basis of appropriate scientific methods. This will encourage proper investigation of offences and eliminate the use of ill-treatment as an investigative method. For this purpose the State will need, amongst other actions, to increase the budgets for the criminal investigation police and Public Prosecutor’s Office.

Article 3

59. In order to give effect to the provisions of article 3 of the Convention, the State conducts a coherent policy for the protection of those in danger of being subjected to torture, as indicated under this article.

Right to asylum and refuge in Ecuador

60. Asylum constitutes a fundamental principle of the foreign policy of Ecuador.

61. The Constitution of the State, codified and approved on 5 June 1998, entered into force on 10 August 1998. In title III, “On rights, guarantees and duties”, article 17 provides that: “The State shall guarantee all citizens, without any discrimination whatsoever, the free and effective exercise and enjoyment of the human rights enshrined in this Constitution and in the declarations, covenants, agreements and other international instruments in force. It shall adopt, through ongoing periodic plans and programmes, measures for the effective enjoyment of such rights.”

62. Further, article 29 provides that: “Ecuadorians prosecuted for political offences shall have the right to request asylum and may exercise this right in accordance with the law and international agreements. Ecuador recognizes the right to asylum of aliens.”

63. Ecuador is a State party to the Conventions on Diplomatic Asylum and on Territorial Asylum, signed in the inter-American context at Caracas on 28 March 1954. With the provision of a safe conduct, the State may formulate a request for extradition, which the country granting asylum must study and respond to.

64. Under article XVII of the Convention on Diplomatic Asylum, to which Ecuador is a party: “Once the departure of the asylee has been carried out, the State granting asylum is not bound to settle him in its territory; but it may not return him to his country of origin unless this is the express wish of the asylee.”

65. Article 6 of the Aliens Act provides that: “Aliens who have been displaced as a result of war or political persecution in their country of origin may, in order to protect their life or freedom, be admitted as asylees by the Government of Ecuador, with observance of the provisions of the respective international agreements, failing which the norms of domestic legislation shall apply.”

66. The Caracas Convention treats asylum and refuge similarly, even though each has its distinguishing characteristics and special features. In any event Ecuador is also party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. Under article 33 of that convention: “No contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”

67. In order to give effect to the provisions of this Convention, the Ecuadorian State, under Executive Decree No. 3316 of 6 May 1992, issued regulations for implementation of the provisions of the 1951 Geneva Convention and its Protocol. The Regulations include the following provisions for the implementation of article 3 of the Convention:

“Article 13. No one shall be refused entry at the border, returned, expelled, extradited or subject to any measure whatsoever that requires him to return to a territory in which his physical integrity or personal liberty may be at risk for the reasons indicated in articles 1 and 2 of these Regulations. For the purposes of these Regulations, the term ‘border’ means the national border itself, ports of entry and airports, and the limits of the territorial waters.”

68. These provisions have been observed by the Ecuadorian authorities in every instance; to date there have been no complaints of deportation of citizens to territories in which there was a possible threat to their physical integrity or personal freedom.

Extradition

69. The Constitution of the State, in its article 25, provides that: “In no case shall an Ecuadorian citizen be extradited. A citizen shall be tried subject to the laws of Ecuador.”

70. Nevertheless, extradition is possible where a treaty or convention is in force between a requesting State and Ecuador and in cases of international reciprocity.

71. The Aliens Act, in its article 3, provides that: “The Government of Ecuador may extradite aliens subject to trial or conviction for ordinary offences committed in another State on submission of a reasoned government request invoking the respective treaty in force for the two countries or international reciprocity in the case of application of domestic legal provisions.”

Rejection, deportation and expulsion

72. Ecuadorian legislation provides for the detention of aliens when they have committed offences relating to migration. The Criminal Code provides for detention for flagrant offences in the use of travel and identification documents, such as: usurpation of identity, falsification of government documents, use of false seals and visas, and fraudulent alteration of passports. The Migration Act also provides for the deportation of aliens when they are in the country illegally, or without proper documentation, or when they have committed violations constituting cause for expulsion or deportation. However, it is the administrative practice of the migration authorities not to apply this provision where open persecution or danger of violation of the right to life or physical integrity in the country of origin is claimed. To this end there is close coordination with the Ministry of Foreign Affairs which, under domestic regulations, has responsibility for refuge for aliens.

73. Under article 19 of the Migration Act the competent authority for the deportation or expulsion of aliens is the Police Commissioner, subject to the observance of due process. Investigation in such cases is subject to the provisions governing due process set forth in article 24 of the Constitution and in the Code of Criminal Procedure.

74. As noted in this report under article 10, the State, with the cooperation of international agencies and human rights organizations, has trained police officers, particularly immigration officers, to safeguard and protect the human rights of aliens, refugees, and stateless and displaced persons.

75. The principal legal provisions complementing the Constitution, and which provide for penalties for those responsible for committing acts of torture, are contained in the Criminal Code and the new Code of Criminal Procedure, which was adopted in January 2000 and which entered into force in July 2001. Thus, with regard to arbitrary detention:

“Penal Code, article 186. Short-term imprisonment for a period of three to six years applies in case of arrest on the basis of a fraudulent warrant, or wearing the uniform or using the name of a law enforcement officer, or where the person arrested or detained has been threatened with death.”

“Criminal Code, article 187. Where the person arrested or detained has suffered physical torture, the guilty party shall be imprisoned for a term of three to six years.

A term of imprisonment of six to nine years shall be imposed if the torture results in any of the permanent injuries listed in the chapter on injuries.

Where torture results in death, the guilty party shall be punished with a special a long-term sentence of 16 to 25 years’ imprisonment.”

76. This article makes express reference to “physical torture” and seems to refer only to torture that leaves external marks. Legal precedent in this regard has been quite clear in indicating that “physical torture” means suffering, abuse, torture, ill-treatment or blows, that is any physical, psychological abuse, when such treatment occasions or causes an external physical change.

77. With regard to statements and confessions:

“Criminal Code, article 203. Any judge or authority that compels a person to testify against himself, his spouse, his ascendants, his descendants or his relatives to the fourth degree by blood or second degree by marriage in matters that can result in criminal liability shall be punished with a prison term of six months to three years.”

“Criminal Code, article 204. Any judge or authority that extracts statements or confessions against the person referred to in the previous paragraph by means of beatings, prison, threats or torture shall be punished with a prison term of two to five years and loss of civic rights for a period equal to that of the sentence.”

78. This article punishes one of the major objectives of torture, namely to obtain incriminating statements. It covers both physical torture, in the form of physical coercion and beatings, and psychological torture, through threats and imprisonment.

“Code of Criminal Procedure, article 220. Guarantees for the defendant. In no circumstance shall the defendant be forced, through physical or psychological coercion, to admit to guilt in respect of the violation. Similarly, it is prohibited, before and during the trial, to employ violence, drugs or any methods or means that vitiate the free and voluntary making of a statement by the defendant. Police officers, officials and employees in the Public Prosecutor’s Office and criminal investigation police who violate this provision shall incur the corresponding criminal penalty.”

79. This provision covers psychological coercion as a form of torture. It recognizes that torture can occur before and during the trial and prohibits the use of drugs and other methods in existence or that might be developed.

80. These provisions are in accordance with article 29.9 of the Constitution, referred to in this report in connection with article 2, which prohibits acts of torture.

81. With regard to the treatment of prisoners:

“Criminal Code, article 205. Anyone who issues or executes an order to torture prisoners or detainees, held incommunicado for a period longer than that provided for by

law, with shackles, leg restraints, bars, handcuffs, ropes, unsanitary cells, or other torture, shall be punished by a term of imprisonment of one to five years and loss of political rights for an equivalent period.”

82. Legal precedent holds that “other torture” includes other forms of torture such as psychological.

“Criminal code, article 206. Neither insecurity in prisons, nor intimidating behaviour on the part of detainees and prisoners, nor unruly behaviour by prisoners, shall serve as a pretext in the circumstances referred to in the previous article.”

83. This article categorically provides that there is no excuse or justification for ordering or committing an act of torture.

84. The current Code of Criminal Procedure, published in Official Gazette No. 360 of 13 January 2000 and in force since July 2001, contains a general human rights provision that must be observed by the criminal investigation police in all circumstances:

“Code of Criminal Procedure, article 211. Respect for human rights. Criminal investigation police officers must strictly observe legal and regulatory formalities in all their acts and shall abstain, subject to engagement of their own liability, from using verification methods that violate the human rights enshrined in the Constitution, international agreements and national legislation.”

85. The Police Criminal Code also prohibits acts of torture:

“Article 145. If a person under arrest or in detention suffers physical torture the person guilty shall be punished with a term of imprisonment of six to nine years.”

86. The Police Criminal Code covers various offences for which members of the police may be tried, including torture.

87. The Ecuadorian legal order contains provisions regarding attempts to commit an offence, which are of general application in criminal practice. Thus, article 16 of the Criminal Code states:

“Article 16. Anyone who commits acts that are likely to result in the commission of an offence shall be held responsible for an attempt to commit an offence if the act is not committed or not proven.

If the author voluntarily desists from the act he shall be subject only to the penalties applicable to the acts performed, provided that such acts constitute a violation, except where, as provided for by law, in special circumstances an attempt to commit an offence is itself deemed to constitute an offence.

If the author voluntarily prevents the act, he shall be subject to the penalty provided for in respect of an attempted offence, reduced by one third or one half.

Violations shall be punishable only once committed.”

88. Attempted torture is not among the offences or special circumstances in which the law defines an attempt as an offence. But, as noted, since 1998 domestic legislation has considered torture as one of the most serious offences, classifying it as imprescriptible, which should be understood as meaning that only discretionary reduction of the penalty for an act of torture committed or proven is applicable to attempted torture, as indicated below.

89. With regard to complicity and being an accessory after the fact, a similar analysis applies to attempted offences. Articles 43 and 44 of the Criminal Code apply:

“Article 43. An accomplice is anyone who indirectly and subsidiarily cooperates in the performance of the punishable act through acts prior to or simultaneous with the act in question.

If, in the circumstances of the case, the person accused of complicity cooperates only in an act less serious than that committed by the author, the punishment applied to the accomplice shall be only that relating to the act that he sought to carry out.”

“Article 44. An accomplice after the act is anyone who, being aware of the criminal conduct of the offenders, habitually supplies them with lodging, hiding places or meeting places or supplies them with the means for them to benefit from the offence committed, or who aids them by hiding the instruments or the material evidence relating to the offence or by covering up the traces or indications of the offence to avoid punishment, and anyone who, in the course of their profession, employment, practice or occupation, conducts an examination of the traces or indications of the offence, or elucidation of the punishable facts, and hides or alters the truth with the aim of assisting the offender.”

90. With regard to penalties for attempts to commit an offence, complicity or being an accessory after the fact, attention is drawn to articles 46, 47 and 48 of the Criminal Code, which specify the rules for the application of penalties in the case of torture:

“Article 46. Authors of attempted offences shall be subject to a penalty of one third to two thirds that imposed had the offence been committed. In applying the penalty account shall be taken of the danger incurred by the victim of the violation and of the record of the accused.”

“Article 47. Accomplices shall be punished with half the penalty applied to authors of the offence.”

“Article 48. Accessories after the fact shall be punished with one quarter of the penalty applied to authors of the offence; in no case shall this exceed two years, neither shall a term of imprisonment be imposed.”

91. Attention is drawn to the relevant section of article 30 of the Criminal Code:

“Article 30. Aggravating circumstances, when not constituting or modifying the offence, are those that increase the maliciousness of the act, or the alarm caused in society by the violation, or that establish the dangerousness of the authors, as in the following cases:

1. Commission of the violation […] with viciousness or cruelty, use of any form of torture or other means to increase and prolong the victim’s pain […].”

92. That is to say torture is not only punished as such, but constitutes an aggravating circumstance in the commission of other duly defined offences. Thus, if individual guarantees, for example individual freedom and integrity, guaranteed by the Constitution and the law, are violated with the use of torture, the penalty for the offender is increased in accordance with the relevant provisions.

93. As indicated below, in connection with article 16, the new Children’s and Youth Code, promulgated in January 2003, establishes, in its chapter IV, provisions that prohibit torture and other ill‑treatment of children and young persons:

“Article 50. Right to personal integrity. Children and young persons have the right to respect for their personal, physical, psychological, cultural, emotional and sexual integrity. They shall not be subjected to torture, or to cruel or degrading treatment.”

94. From the provisions cited it is apparent that Ecuadorian criminal legislation penalizes not only physical torture, but also psychological torture, and covers all the situations included in the definition in article 1 of the Convention, since it clearly indicates the purposes of torture - obtaining self-incrimination, a confession or information, or punishing the detainees or prisoners - and provides that such illegal acts must be committed by a judge or other public official acting in an official capacity. The issuance of the new Code of Criminal Procedure has allowed judges to broadly extend criminal provisions, taking into account both kinds of torture and establishing penalties in accordance with the gravity of the offence.

95. Nevertheless the State is aware that there is a need for the Criminal Code to establish a definition similar to that given in article 1 of the Convention, and efforts will be made to overcome difficulties in that regard.

96. Ecuadorian legislation is fully compatible with article 5 of the Convention. Article 5 of the Criminal Code, as will be seen below, covers all the situations with regard to jurisdiction provided for in the Convention. It should be noted, in addition, that only judges and criminal courts may exercise jurisdiction in criminal cases. Article 17 of the Code of Criminal Procedure provides as follows in this regard:

“Article 17. Authorities. The following are criminal jurisdiction authorities, in the circumstances, forms and manner provided for by law:

(1) The criminal chambers of the Supreme Court;

(2) The President of the Supreme Court;

(3) The chambers of the high courts of justice;

(4) The presidents of the high courts of justice;

(5) The criminal courts;

(6) Criminal law judges;

(7) Judges trying violations;

(8) Other judges and courts established under special laws.”

97. With regard to article 17.8, it should be recalled that implementation must be in accordance with transitional provision No. 26 of the Constitution, adopted in 1998:

“26. All magistrates and judges under the executive shall be transferred to the judiciary, and, unless otherwise provided for by law, shall be subject to their own organization acts. This provision covers military, police and juvenile judges. If other public officials include among their functions the administration of justice in specific areas, they shall lose such functions, which shall be transferred to the corresponding organs of the judiciary. […]”.

98. This provision resolves one of the major concerns of the Committee regarding the need for any investigation of the offence of torture to be carried out exclusively by independent judges who are members of the judiciary.

99. However, largely owing to a lack of resources, it has not been possible to fully implement this constitutional provision; the Government hopes that before the next report is submitted to the Committee the measure will be fully implemented.

100. With regard to the substance of article 5 of the Convention, the following provision of the Criminal Code, as referred to in a previous paragraph, should be noted as covering the exercise of jurisdiction in trying the offence of torture:

“Article 5. Any violation committed within the territory of the Republic, by Ecuadorian nationals or aliens, shall be tried and punished in accordance with Ecuadorian legislation, except as otherwise provided for by law. Violations committed within the territory of the Republic shall be:

Those committed on board Ecuadorian naval or merchant ships or military or civil aircraft, except where in accordance with international law, merchant ships or civil aircraft are subject to foreign criminal legislation, and those committed in the territory of an Ecuadorian legation abroad.

The violation shall be understood to have been committed in Ecuadorian territory when the effects of the act of commission or omission constituting the violation occurred in Ecuador or in places subject to its jurisdiction.

Any national or alien who commits any of these violations outside the national territory shall be punished in accordance with Ecuadorian law: […]

(4) Offences committed by public officials in the service of the State, in abuse of their authority or in violation of the duties attaching to their functions;

(5) Offences under international law; and

(6) Any other violations in respect of which special legal provisions or international conventions establish the rule of Ecuadorian law.

Aliens who commit any of the violations indicated above shall be tried and punished in accordance with Ecuadorian legislation, provided that they are arrested in Ecuador or are extradited.”

101. This provision complements article 7 of the same legislation:

“Article 7. Any Ecuadorian who, other than in the circumstances provided for in article 5, commits abroad an offence which under Ecuadorian law carries a penalty of imprisonment in excess of one year shall be punished in accordance with Ecuadorian criminal legislation, provided that the offender is in Ecuadorian territory.”

102. For the reasons indicated and in accordance with the provisions of article 5, paragraph 2 of the Convention, it should be noted that Ecuadorian legislation accepts so-called “universal” or “quasi-universal jurisdiction” in trials involving torture, which may be viewed as one of the principal achievements of international human rights law in the quest to eliminate impunity in such cases.

Detention in cases of torture

103. Article 24.4 of the Constitution provides that: “Anyone who is arrested shall have the right to be fully informed of the reasons for the arrest, the identity of the authority ordering the arrest, the identity of the officers making the arrest, and the identity of those conducting questioning.”

104. It goes on to state that: “the person arrested shall be informed of his right to remain silent, to request the presence of counsel, and to communicate with a family member or any other person of his choice. Anyone who arrests a person, with or without a written court order, and who fails to provide confirmation that the detainee has been handed over immediately to the competent authority shall be punished”.

105. When an alien is arrested, the Department of Migration makes immediate contact with diplomatic or consular representatives in Ecuador to inform them of the situation. If such diplomatic or consular representatives are not present in Ecuador, the Department of Migration contacts the Ministry of Foreign Affairs so that the necessary legal steps can be taken through the diplomatic channel.

106. Assistance for alien detainees is provided by officials of diplomatic missions and consular offices. In their absence, the Ombudsman is asked to appoint counsel to provide free assistance during judicial proceedings.

107. Under the Code of Criminal Procedure (art. 165), for the purposes of investigations a limit of 24 hours is set for the detention of an alien. The period of deprivation of liberty of an accused person is governed by article 24.6 of the Constitution, referred to in connection with article 2.

108. Further, in article 22, the Constitution provides that: “The State shall have civil liability in the event of judicial error and of improper administration of justice, for acts resulting in the imprisonment or arbitrary arrest of an innocent person, and for alleged violations of the norms established in article 24. The State shall have a right of recourse against the responsible judge or official.”

109. Article 24, referred to in the previous paragraph, provides as follows: “To ensure due process, the following fundamental guarantees must be observed, without prejudice to others established under the Constitution, international instruments, laws and legal precedent”, the article enumerates 17 guarantees, including:

“No one may be tried for an act of commission or omission that at the time of commission was not defined as a criminal, administrative or other offence, nor shall any punishment not provided for by the Constitution or by law be applied. Neither shall any person be tried except in accordance with pre-existing legislation, with observance of the proper procedure in each case;

In the event of conflict between two laws providing for penalties, the less rigorous shall be applied, even if it was promulgated subsequent to the violation; in the event of doubt, the provision containing the penalties shall be applied to the accused in the most favourable sense;

No one may be deprived of liberty, except pursuant to a written order by a competent judge, in the circumstances, for the period and in accordance with the formalities prescribed by law, except in case of flagrante delicto, when a person may also not be held without a court order, for more than 24 hours. An exception is made in the case of disciplinary arrests provided for by law in law enforcement bodies. No one may be held incommunicado;

Any person whose guilt has not been declared in a final judgement shall be presumed innocent;

No one may be deprived of the right to defence at any stage or level of the proceedings. The State shall provide public defence counsel for indigenous communities, workers, women and abandoned minors or victims of domestic or sexual violence, and or any person in financial need.”

110. These norms seek to ensure that the authorities comply with the principles of due process in the detention and investigation of aliens suspected of having committed the offence of torture.

111. Should extradition not be applicable, Ecuadorian domestic legislation obliges the competent authorities to initiate prosecution in respect of the offences, as indicated in article 5.4 of the Criminal Code:

“A national or alien who commits any of the following violations outside Ecuadorian territory shall be punished in accordance with Ecuadorian law:

(5) Offences against international law”.

112. The final paragraph of the article states that: “Aliens who commit any of the violations indicated above shall be tried and punished in accordance with Ecuadorian legislation, provided that they are arrested in Ecuador or are extradited.”

113. With regard to article 8 consideration must be given to Ecuador’s constitutional and domestic legal provisions on extradition, referred to in this report in connection with article 3, which allow the extradition of foreign citizens who have committed ordinary offences in other States, should there be a convention or treaty in force between the requesting State and Ecuador, or in the case of international reciprocity. These serious ordinary offences include the offence of torture, which, as indicated in this report in connection with article 4, is duly penalized under domestic legislation.

114. Articles 9 to 14 of the Migration Act refer to “Provisions for the exclusion of aliens” and articles 19 to 36 to “Provisions for the deportation of aliens”.

115. Article 19 states that: “The Ministry of the Interior, through the Migration Service of the National Police, shall deport any alien subject to national jurisdiction present in the country, including in the following cases:

4. “Ordinary offenders who cannot be tried in Ecuador in the absence of territorial jurisdiction.”

116. Since 15 April 1998 Ecuador has been party to the Inter-American Convention on Extradition, adopted on 25 February 1981. Article 1 of the Convention reads:

“The States Parties bind themselves, in accordance with the provisions of this Convention, to surrender to other States Parties that request their extradition persons who are judicially required for prosecution, are being tried, have been convicted or have been sentenced to a penalty involving deprivation of liberty.”

“Article 2.1. For extradition to be granted, the offense that gave rise to the request for extradition must have been committed in the territory of the requesting State.”

117. In the context of article 8, paragraph 2, of the Convention, since Ecuador subordinates extradition to the existence of treaties, the Ecuadorian State is willing to consider the Convention against Torture as the requisite legal basis for the extradition of foreign citizens who have committed torture in another State party to the Convention, should the case arise.

118. Further, paragraphs 2 and 4 of article 8 of the Convention served as the basis for Ecuador’s approval of the Statute of the International Criminal Court, published in Official Gazette No. 699 of 7 November 2002.

119. Various requests for extradition from the Governments of Greece, Italy, the United States of America, Mexico and Germany have been considered for ordinary offences relating to embezzlement, misappropriation of funds and drug trafficking, and are still being processed. To date no requests for extradition have been addressed to Ecuador in connection with torture.

120. Article 4.1 of the Constitution states that:

“Ecuador, in its relations with the international community: 1. Proclaims peace and cooperation as a system of coexistence and legal equality of States.”

121. Under article 9, paragraph 1, Ecuador is obliged to afford the greatest measure of assistance in connection with criminal proceedings in respect of cases of torture. However, as mentioned in connection with article 8, to date such assistance has not been sought by other States in connection with the commission of such offences. Nevertheless Ecuador is party to other multilateral and bilateral treaties and agreements on mutual legal assistance that may be invoked and implemented as needed.

Mutual legal assistance instruments ratified

122. Since the submission of the previous report, Ecuador has ratified the following mutual legal assistance agreements:

The Inter-American Convention on Mutual Legal Assistance in Criminal Matters, adopted by the General Assembly of the Organization of American States on 23 May 1992. Ecuador deposited the instrument of ratification on 3 August 2002. Article 2 reads: “The states parties shall render to one another mutual assistance in investigations, prosecutions, and proceedings that pertain to crimes over which the requesting state has jurisdiction at the time the assistance is requested.” At present the following are parties to the Convention: Canada, Colombia, Ecuador, Grenada, Nicaragua, Panama, Peru, the United States of America and Venezuela;

The agreement between the Republic of Ecuador and the Kingdom of Spain concerning the execution of criminal sentences (1997/03/10);

The treaty between the Republic of Ecuador and the Swiss Confederation on judicial cooperation in criminal matters (1999/01/19);

The agreement between the Republic of Ecuador and the Republic of Peru on the transfer of convicted offenders (2000/05/05);

The agreement between the Republic of Ecuador and the Republic of Colombia on judicial cooperation and mutual assistance in criminal matters (2000/10/05);

The agreement between the Republic of Ecuador and the Republic of Uruguay on mutual legal assistance in criminal matters (2001/03/16);

The agreement between the Republic of Ecuador and the Republic of Paraguay on mutual assistance in criminal matters (2000/02/16).

123. Under these agreements the parties undertake to provide the fullest cooperation with regard to the transfer of convicted offenders with final judgements, and to assist in their full rehabilitation.

124. Judicial cooperation includes measures taken to assist criminal proceedings in the requesting State, such as: receipt of testimony and other statements, exchange of information, effective preventive measures, provision of documentation relating to proceedings, notification of decisions and sentences, examination of evidence and locations.

125. The process of ratifying the agreements that Ecuador has concluded in the reporting period with Costa Rica and El Salvador is under way.

126. In the Andean Charter for the Promotion and Protection of Human Rights, promoted by Ecuador and adopted in the context of the Andean Community of Nations on 26 July 2002, there are provisions relating to mutual cooperation between member States in respect of the protection and exercise of human rights. In the case of torture, the Charter, in article 23, states:

The Andean Community member States “will, with the participation of competent public entities and civil society, launch action plans designed to prevent and eliminate, and also to investigate, try and punish, crimes against humanity, including torture and any other cruel, inhuman or degrading treatment or punishment, forced disappearances and extrajudicial executions”.

127. The obligation of the Ecuadorian State to promote the teaching of human rights, in particular the prohibition of torture, is enshrined in article 66.2 of the Constitution, which provides that:

“Education, based on ethnic, pluralistic, democratic, humanist and scientific principles, shall promote respect for human rights, foster critical thinking, promote civic responsibility, provide skills for efficiency in the workplace and production, stimulate creativity and the full development of the personality and the special skills of each person, and encourage multiculturalism, solidarity and peace.”

128. Since 1993 the Ecuadorian State has promoted the teaching of human rights in the country, including the subject of the prohibition of torture in the professional training of law enforcement personnel, both civilian and military.

Human rights training programme for military personnel

129. Under the agreement signed in October 1993 between the Ministry of Defence, the Ministry of Foreign Affairs, the Latin American Association for Human Rights (ALDHU) and the United Nations Development Programme (UNDP), a programme on training in human rights for members of the Ecuadorian armed forces was initiated, with the fundamental objective of helping to strengthen the role of the armed forces as guarantors of the rule of law and establishing a forum for civilian-military dialogue with regard to democracy, security and human rights.

130. The first phase of the programme, from 1993 to 1996, trained 6,500 members of the armed forces, mainly from the army, who took part in educational activities, incorporating human rights in professional military training.

131. The second phase of the programme, from 1996 to 1997, implemented an emergency plan for human rights training for 8,000 members of the armed forces; 360 members of the air force and navy were trained in this phase. In February 1997, the United Nations Centre for Human Rights conducted an evaluation of the programme, which served as a basis for the third phase.

132. The third phase, from 1997 to 1999, included a diploma course in human rights and security conducted by the Latin American Faculty of Social Sciences (FLACSO - Ecuador); training was given to 12 military professionals who became human rights instructors in armed forces training centres.

133. The programme has helped to change the view of human rights by the military, which initially identified human rights as a subject area that was not of concern to the armed forces.

134. Significant changes have taken place in the military in terms of regulations, in particular in the treatment of the rank and file and personnel performing military service. 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.

Human rights training programmes for police personnel

135. The Ecuadorian State has worked closely with civil society on training in human rights. Human rights organizations, in coordination with the National Police, have begun human rights education programmes for police personnel which have raised awareness of human rights, in particular with regard to civil and political rights and the prohibition of torture. One of the most significant programmes was that undertaken by the Ecuador Centre for Multidisciplinary Study and Research (CEIME), 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 been the prohibition of torture and ill-treatment, investigation procedures, and support for victims of domestic violence.

136. There follows a summary of the content and results of the programmes:

1. Objectives

The programme promotes the implementation of government human rights policy in the State and society with the emphasis on improvement of the system for the administration of justice in Ecuador; it gives wide coverage to its administration and achievements; it develops relevant pedagogical approaches in the areas of citizen and professional training, and in the higher education system.

The programme offers training so that the police can effectively discharge their role of providing protection for the citizen while ensuring respect for human rights, and, in particular, protection and punishment in respect of gender-based violence (marital violence, domestic violence, ill-treatment of children and sexual violence).

2. Development of the National Police training programme

Start date: 1994, with the signing of a cooperation agreement.

2.1.1 General training: subjects and coverage (1994-2002)

Subjects:

Criminal procedure law (outlook for reform in the international context of human rights and security of the citizen);

Scientific law (forensic science applied to the system of evidence and forensic skills as a means of eradicating criminal impunity);

Gender-based violence;

Human rights of women;

Violence and Violence against Women Act (Act No. 103);

Role of the police and police procedures (in the international human rights context and current domestic legislation).

Number of events: 853

Number of participants: 16,192 (police authorities, police officers and officials, and cadets at police schools).

2.1.2 Relevant publications

1998: Police Procedures Manual; the manual summarizes the duties of a police officer with regard to Act No. 103, which punishes domestic violence (now officially adopted).

2000: Legal Rights Education Manual (six fascicles on the subjects noted under 2.1.1; includes audio-visual material); the manual was adopted by the police as mandatory teaching material, within the police education system.

2.1.3 Results

Incorporation of subjects mentioned in the police curriculum.

Adoption of the manuals as compulsory reading for informal police training.

Establishment of citizen protection and guidance services, particularly for women and the family, through the creation in 1994 and subsequent expansion of the Office for the Defence of Women’s Rights (ODMU).

Changes in police objectives and conduct with regard to their protection role in situations of marital, domestic and sexual violence.

2.2 Formal education and curriculum reform subprogramme

Start date: 1996. Formulation, validation and institutionalization of curriculum reform, with a cross-cutting approach and the inclusion of new content with regard to human rights, criminal law, forensic science, protection of the citizen, prevention, and intervention in cases of marital violence (relevant legislation and role of the police).

2.2.1. Subjects for inclusion in the curriculum

Criminal law: International human rights context.

Forensic science: Procedures, protocols and legal certainty system in expert testimony.

Human rights: Legal, ethical and political aspects.

Domestic violence: Focus on social and gender equity.

Protection of the citizen: Cross-cutting approach.

2.2.2 Coverage

National Police Education Department.

Education Department pedagogical advisers.

National Police Headquarters School.

Officers Training and Advanced Training School.

General Alberto Enríquez Gallo Police School.

Nine police training schools maintained throughout the country.

2.2.3. Results

Decision to institutionalize the curriculum reform proposal (relating to the subjects described) in the police education system.

Incorporation of new content (subjects mentioned) in specific disciplines.

3. Short and medium-term outlook

Working with police education system authorities and pedagogical staff for the inclusion of new reading lists, curriculum reform and integration of new components.

Training programme in the rights of aliens, refugees, stateless and displaced persons

137. The Ecuadorian State, with the support of the United Nations High Commissioner for Refugees, provided special training for personnel of the National Police and armed forces intended specifically to promote understanding of international and domestic legislation on the rights of aliens, refugees, and stateless and displaced persons. The programme lasted two years (2000-2002).

138. The programme targeted migration police authorities and border military units and the Office of the Ombudsman, at the national and provincial levels, journalists and teachers, as well as civil society and human rights organizations active in this field. The programme conducted seven workshops at Cayame, Azogues, Esmeraldas, Cuenca, Coca, Quito, Guayaquil and Santo Domingo de los Colorados. The programme trained some 2,000 people.

Education and human rights in the Ecuador National Human Rights Plan

139. In 1998 the State adopted the Ecuador National Human Rights Plan, which takes as a cross-cutting theme education in and for human rights. In the part relating to the training of staff responsible for implementation of the law, the National Plan provides:

“Article 33. Provide an incentive for members of the armed forces and National Police to take human rights courses under study programmes set forth in the various agreements signed between the management organs of the various law enforcement bodies and specialized institutions.”

140. The United Nations High Commissioner for Human Rights, in the context of the project on support for the National Human Rights Plan, under component IV of the education and human rights project, initiated training of National Police officers, prosecutors and representatives of the media in a one-year programme (2000-2001) that trained around 1,000 people.

141. In the context of the National Human Rights Plan, the State and civil society formulated the National Human Rights Education Plan, reviewed and approved by the Standing Committee for Follow-Up to the National Plan, which provides for implementation of the National Human Rights Training Plan, which covers teachers, law enforcement officers, prosecutors, media and other professionals and members of civil society. The National Training Plan will start in 2003.

142. Notwithstanding these initiatives, the State is aware that education and training in human rights must be strengthened and must cover, in the context of the National Education Plan, other professional areas related to torture, such as medicine, psychiatry and prison staff. With regard to the latter, in 1999 a human rights training programme was begun for applicants for prison guard positions; the programme lasted only a short while owing to a lack of funding. The prison system has only 220 professionals for 32 rehabilitation centres, of whom 50 are doctors, 22 dentists, 45 social workers, 42 psychologists and 53 workshop instructors. These staff require urgent training in human rights, in view of which the State is hoping to initiate such training as soon as possible.

143. In connection with article 16, comprehensive information is provided on training in preventing other cruel, inhuman or degrading treatment.

144. With a view to improving the norms, instructions, methods and practices involved in questioning, as well as the provisions for the custody and treatment of individuals subjected to any kind of arrest, detention or imprisonment, so as to avoid any cases of torture the 1998 Constitution introduced fundamental norms designed to reduce the numbers of and eradicate cases of torture during criminal detention and investigations:

Article 24.4 (1): “Anyone who is arrested shall have the right to be fully informed of the reasons for the arrest, the identity of the authority ordering the arrest, the identity of the officers making the arrest, and the identity of those conducting questioning”;

Article 24.4 (2): “Everyone has the right to remain silent, to request the presence of counsel, and to communicate with a family member or any other person of his choice. Anyone who arrests a person, with or without a written court order, and who fails to provide confirmation that the detainee has been handed over immediately to the competent authority shall be punished”;

Article 24.5: “No one may be questioned, not even for the purposes of an investigation by the Office of the Public Prosecutor, or by any police or any other authority, without the presence of private defence counsel or counsel appointed by the State. Any judicial, pre-trial or administrative proceedings that fail to comply with this requirement shall lack evidentiary effect.”

145. These reforms will make it easier, firstly, in the event of abuse of authority and violation of the rights of detainees, for those concerned to initiate proceedings against the officials involved and to avoid such violations being covered by impunity. Secondly, for the first time, the right to remain silent is recognized. This right did not previously form part of the domestic
order and strengthens the right to consult a lawyer. Thirdly, the reforms establish the lack of evidentiary effect of judicial or administrative acts in which the detainee was questioned without private or State‑appointed counsel present. This provision has an impact on reducing torture and cruel, inhuman or degrading practices by police officers during questioning.

146. It is important to recognize that the State still faces major challenges in improving interrogation methods and practices, since, while ill-treatment during questioning has declined with the adoption of the provisions referred to above, investigating officers have still not adequately developed other scientific techniques to determine liability, so that statements by the accused and witnesses remain the most heavily used evidence in judicial proceedings.

Ecuadorian penitentiary system

147. Among the significant changes introduced by the current Constitution, is article 208.2, which provides that detention centres may be administered by private non-profit-making institutions, under State supervision.

148. With a view to monitoring abuse of pre-trial detention, article 167 of the Code of Criminal Procedure imposes restrictions on preventive measures. This provision is in accordance with article 24.8 of the Constitution, already cited in this report in connection with other articles, which establishes the maximum length of pre-trial detention: six months for convicts sentenced to detention and one year for offences punished by longer terms of imprisonment.

149. The penitentiary system, administered by the National Social Rehabilitation Council under the Ministry of the Interior has regulations ensuring that social rehabilitation supervisory staff, before recruitment, must have undergone training and special psychological and physical aptitude tests.

Procedures for investigating complaints of torture

150. Complaints of torture or ill-treatment against prison guards or police officers serving in a penitentiary are submitted through the Ministry of the Interior/Department of Political Coordination (established in October 2002), under which the Human Rights Unit is placed.

151. Complaints are treated in different ways: if it is against a guard, the case is investigated by the Department of Social Rehabilitation under the corresponding summary administrative procedure; if warranted, the most serious administrative penalty is dismissal, subsequent to which criminal proceedings may be initiated.

152. If the complaint is against a police officer, the Ministry of the Interior refers the matter to the police for the corresponding administrative investigation. The administrative penalties are the same as those for prison guards, the most serious being dismissal and subsequent criminal proceedings.

Ecuadorian penitentiary system indicators

department of social rehabilitation

Source: Department of Planning. Prepared by: Department of Planning.

Prepared by: Department of Planning. Date: 2001.

Date: 2001. * Includes 2,972 narcotics arrests.

The prison population has decreased by 2.12 per cent since 2000.

The decrease of recent years has slowed.

16 Statistical Bulletin 2001
For the modernization of prisons

department of social rehabilitation

prison population: distribution by case status 1989-2001

Prepared by: Department of Planning. The figure of 7,859 includes the population
of CDP with 121 inmates.

Date: 2001.

Classification by case status shows an increase in the numbers of prisoners under investigation to 5,526 (70 per cent), an indication of sluggishness in conducting proceedings. More disquieting is the fact that proceedings are being slowed down by the release of prisoners pursuant to article 24.8 of the Constitution: “Pre-trial detention may not exceed six months in respect of offences punishable by detention, or one year in respect of offences punishable by imprisonment. Should these limits be exceeded, the pre-trial detention order shall be void.”

20 Statistical Bulletin 2001
For the modernization of prisons

department of social rehabilitation

prison population: male offenders 2001