A. LEGAL AND INSTITUTIONAL GUARANTEES IN THE REPUBLIC OF ECUADOR
The Republic of Ecuador is founded upon the principle of constitutionally established democracy. The legal and political organization of the state are defined in Article 1 of the Constitution. The Executive branch is headed by the President, who is directly elected by the people and serves for a four year term. The Congress comprises the Legislative branch, and its members are directly elected to two year terms. The Judiciary is composed of the Supreme Court, local courts dealing with fiscal and administrative matters, superior courts; other courts established by law; and the National Council of the Judicature.
The current Constitution of Ecuador has been in effect since 1979, subject to amendments enacted in 1982, 1992, and 1996. It may be noted that the most recent process of constitutional reform took place against a backdrop of rapid change in the political situation in the country. During 1995 and into 1996, relations between the branches of Government were strained, with the then-ruling party holding fewer than ten of 77 seats in the Congress. This phase of the Durán Ballén Administration was also marked by: the replacement over time of some two dozen ministers; the decision by Congress to censure several ministers; the resignation and departure from the country of the Vice President; and the dismissal by Congress of the President and two Magistrates of the Supreme Court.
1. The Constitutional Protection of Individual Rights and Freedoms
The 1996 amendments to the Constitution demonstrate a renewed and strengthened emphasis on the recognition and protection of individual rights and freedoms. Within the provisions of the Constitution which speak to the rights and duties of individuals, it is now established that the "highest duty of the State" is to respect and to ensure respect for the human rights set forth therein. Individuals have the corresponding duty to respect the rights of their fellow inhabitants, as well as to strengthen national unity and promote the common good. Every constitutional guarantee is declared to be in full effect and may be invoked before any judge, court or public authority. The State guarantees to all within its jurisdiction the free and full exercise of the civil, political, economic, social and cultural rights set forth in the international declarations, conventions and instruments in effect.(1)
Article 22, which encompasses the rights, duties and guarantees of the inhabitants of the country, sets forth individual liberties in its first section. These include, inter alia: the right to life and to personal integrity, to live in an environment free from contamination, the right to honor, the right to freedom of opinion and expression as well as the right of reply, and the right to be free from discrimination. Among the reforms to this section are the prohibition of discrimination for reasons of age, and the stipulation that the sexes are juridically equal. It is now expressly indicated that the State shall take measures to eliminate all forms of discrimination. Another reform, under the heading of habeas data, establishes the right to have access to certain types of information in the public and private sphere, and to resort to the courts for a remedy when such information is erroneous or illegitimately infringes on a right.
Other principal guarantees include freedom of conscience and religion, the right to the privacy of one's home and correspondence, the right to move freely within the country and the right of citizens to leave and return, the right to petition to the authorities, freedom to work and the right to be free from forced labor, freedom of contract, and freedom of association and assembly. Article 22 also recognizes the right to a standard of living sufficient to meet essential requirements, the right to privacy regarding one's religious or political views, and the right to participate in the cultural life of the community. The latter has been amended to reflect certain protections of the right to intellectual property.
The right to liberty and personal security under the Constitution include the prohibition of: slavery and servitude, of imprisonment for debt, of ex post facto punishments, as well as the requirement that in cases of doubt, criminal law will be construed in favor of the accused. This section has been amended to state that criminal law will require proportionality between the punishment and the offense. Criminal process guarantees include the right to trial by a regular court and the right to have access to counsel. The reforms extend this right to suspects who have yet to be charged with a crime. Every person is to be presumed innocent until deemed guilty pursuant to a final non-appealable judgement. No one may be deprived of his liberty except by the written order of a competent authority according to the formalities of the law, or in the case of a flagrant delict. Every person detained must immediately be informed of the reason, and no detainee may be held incommunicado for more than 24 hours. This section also includes a right to an indemnity for a person penalized but whose sentence is later reformed or revoked. The latter provision has been expanded to indicate that the State will be civilly responsible where judicial error causes an innocent person to be imprisoned or arbitrarily detained.(2)
2. Institutional Guarantees for Individual Rights and Freedoms
The 1996 amendments to the Constitution reconfigured and expanded certain guarantees to protect individual rights. The right to petition for habeas corpus, which pertains to any person who believes him or herself to be wrongfully detained, has been moved into a new section on guarantees.(3) An additional right to petition for amparo has been created, which allows individuals to resort to the courts to avoid, to seek injunctive relief against, or to immediately remedy the consequences of an act of a public authority in violation of a constitutional protection which may cause imminent, serious and irreparable damage.(4)
Constitutional reforms to the provisions concerning the judicial function suggest an expansion on the one hand, in that certain forms of alternative dispute resolution are now recognized. On the other hand, there is a contraction in protection, in that it is now expressly stated that "justice is free" in only five classes of cases: criminal, labor, nutrition, minors and concerning public order. Fees for other types of actions will be set by the National Congress. A noteworthy reform to the judicial function provides that no person may be interrogated by the police or other authority without the assistance of private defense counsel, or a public defender in the event the interested party is unable to name an attorney. It is further specified that any judicial, preliminary or administrative measure taken in violation of this requirement will lack probative value.(5)
3. Institutional Mechanisms of Protection
The Judicial branch is headed by the Supreme Court of Justice, and includes the Superior Courts and other courts of inferior jurisdiction established pursuant to law. The 1996 reforms recognize certain administrative law courts within this function.
These latest reforms eliminate the Court of Constitutional Guarantees, and replace it with the Constitutional Court.(6) This Court is invested with the competence to rule, inter alia, on challenges to laws, regulations or acts of public authority claimed to conflict with the Constitution, and its powers are much more definitive than those of its predecessor.(7) The Constitutional Court is a tribunal of last instance and its rulings are executory in nature. Individual standing before the Constitutional Court will be somewhat more restricted, however, than under the previous system. Previously, any person could challenge an act of public authority. Currently, a claim before the Constitutional Court may be brought by the President, the Congress or the Supreme Court in certain cases, or pursuant to the petition of 1000 citizens, or by any person pursuant to the favorable report of the Ombudsman on the legitimacy of the claim.(8)
While the new Constitutional Court will exercise jurisdiction over constitutional challenges, it should be noted that the Constitution vests the final authority to determine the interpretation of any provision thereunder in the Congress. In the case of doubt as to the scope of a norm, only the full Congress, meeting on two separate occasions, can interpret it through a special law which, if approved by a two-thirds vote, then takes effect.
In addition to the role of the judiciary, which is further described and discussed in the section concerning the right to judicial protection, the National Congress also plays a role in monitoring the situation of human rights in the country. An ad hoc Special Commission on Human Rights was established in the latter half of 1986, with the purpose of receiving, analyzing and attempting to resolve complaints, disseminating information about human rights, and proposing legal reforms to strengthen human rights. This role was subsequently institutionalized with the creation of a Permanent Commission, which in fact provided important information to the Inter-American Commission on Human Rights during its on site visit.
The Establishment of the Office of Ombudsman (Defensor del Pueblo)
The 1996 amendments to the Constitution called for the establishment of the Office of the Ombudsman (Defensor del Pueblo) for human rights. The Ombudsman, to be elected by the Congress, is to promote or sponsor the right to habeas corpus or amparo as required, and to maintain vigilance over the fundamental rights guaranteed by the Constitution. However, implementing legislation was required to establish the office and to fully define the scope of its mandate.
By means of its March 19, 1997 submission, the Government informed the Commission that Congress had adopted the "Organic Law of the Defensor del Pueblo," published on February 20, 1997. The Ombudsman is to report to the Congress annually on the situation of human rights in the country and the activities of the office. The role of the Ombudsman is to include participating in the presentation of constitutional challenges, mediating conflicts between individuals or popular organizations and the public administration, promoting human rights training, visiting penal rehabilitation centers, processing individual cases, and promoting compliance with international human rights norms. The appointment of the Ombudsman remains pending. Given the primacy of national mechanisms in the task of promoting and protecting human rights, the Commission looks forward to receiving additional information on the development of this Office.
The Establishment of the Truth and Justice Commission
On September 17, 1996, the Minister of Government issued Ministerial Accord No. 012, establishing a national Truth and Justice Commission. The Accord recalls that the rights to life, liberty and the integrity of the person, as well as their constitutional and international guarantees, constitute the paradigm of democratic life, and that respect for human rights is a fundamental undertaking of the Government. The Accord acknowledges that, since the reestablishment of democracy in 1979, different sources have raised grave allegations of human rights violations, and calls for a process to establish the facts, sanction those responsible, and grant reparation to the victims.
This process is to be carried out by a seven member commission, composed of the Minister or his representative, three named representatives of international human rights organizations working in the country and three named representatives of national human rights institutions. The Commission is to receive denunciations of human rights violations since 1979, especially concerning life, liberty and personal security, carry out an investigation, and in the appropriate case, submit the evidence compiled to the judiciary. The Commission has one year to carry out its investigations and to report on its findings, although this period may be extended if necessary. The Commission may also issue reports on particular themes or cases when merited. The Accord establishes that the State shall provide the support and facilities required by the Truth and Justice Commission, and a brief set of regulations has been drawn up for its operation.
The IACHR considers that the investigation of denunciations of human rights violations, and the clarification of the facts is of critical importance to the victims, their families and to society as a whole, and are integral steps in realizing the right to know the truth about past violations. It is equally important that measures be taken to ensure that the individuals implicated in past human rights violations are submitted to the appropriate judicial processes and sanctions. The investigation and clarification of the facts, the prosecution and punishment of those responsible, and the reparation of the damage are required to combat impunity. The IACHR welcomes the establishment of the Truth and Justice Commission, and encourages all of the institutions of the Ecuadorean Government to take the measures necessary to ensure that its mandate is fully and effectively discharged.
Media reports from early 1997 indicate that various members of the Truth and Justice Commission had expressed that, without the necessary resouces and trained personnel, their work could not be fruitful. Reports indicate that, on February 3, 1997, this Commission broke its relationship with the Government.
The National Police and Armed Forces
The role of the public security forces in relation to human rights has been a high profile issue in Ecuador, in the wake of investigations throughout the early 1990's into the disappearance of the Restrepo Brothers at the hands of the Criminal Investigation Service of the National Police, and several cases of disappearance.
During the Commission's visit, Ecuadorean authorities provided information about measures taken to raise attention to respect for human rights within the security forces, including the incorporation of human rights training into the professional curriculum of the Police and the armed forces. During a meeting with the Commission, the Minister of Defense, General José Gallardo, emphasized that the armed forces command were working under the principle that their forces should exist to preserve the human rights of the people.
The Commission has taken note of the training programs established to educate members of the police and security forces in human rights. For example, on July 19, 1993, the Minister of Defense and the Quito office of the Latin American Association for Human Rights signed an agreement with the objective of ensuring that members of the armed forces receive training in human rights. The two year program was planned to embrace all members of the approximately 85,000 armed forces, from the high command to the entry level soldier. The program was funded by the Development Program of the United Nations, and the training carried out by instructors and academics trained in human rights. The Commission has also received information about smaller scale efforts to train members of the police in human rights.
A principal issue raised before the Commission during its visit concerned the practice of trying members of the police and armed forces accused of human rights violations under their respective instances of special jurisdiction rather than the ordinary civilian tribunals. Both institutions are essentially responsible for their own discipline, as special police and military courts are vested with the jurisdiction to try their members in closed sessions. The Commission was informed that verdicts, when reached, are not made public. Civilian authorities have the power to direct these cases to courts of ordinary jurisdiction, but such instances have been rare.
Concerns were raised about the methods currently being employed to counter crime. Under an emergency decree issued in September of 1994, discussed further below, the armed forces were mobilized to participate in anti-crime activities throughout the country. In some cases, this involves cooperation between the military and the police, in other cases, the military is authorized to carry out certain actions when the police are unavailable. These activities have involved patrols by members of the military, as well as searches, investigations, arrests, detentions, and a series of raids.(9) Human rights groups expressed profound concern for the effects on the rights of civilians caught up within these operations.
4. The Suspension of Constitutional Guarantees
The President of the Republic is invested, pursuant to Article 103.ñ of the Constitution, with the authority to declare a state of national emergency and to exercise certain enumerated powers, including the competence to suspend certain constitutional guarantees. The suspension of the right to life or physical integrity is expressly prohibited, as is the expulsion of nationals or the confinement of citizens far from their place of residence. The National Congress, if in session, has the authority to revoke such a declaration, and the Constitutional Court has the competence to review the validity of such a declaration.
The period under review has been characterized by repeated resort to such exceptional measures.(10) In January of 1992, about 6 months before President Durán Ballén took office, then-President Borja ordered the mobilization of troops in the Guayas region in response to street violence generated by a municipal decision to dismiss thousands of municipal workers. In September of 1992, President Durán Ballén issued Decree Law 86, mobilizing the police and armed forces in view of expected demonstrations to protest upcoming fiscal austerity plans. Again in December of 1993, the Government decreed a state of emergency in response to a prolonged strike carried out by the National Union of Educators.
On June 22, 1994, President Durán Ballén declared a state of emergency and mobilization in connection with an uprising being carried out by indigenous communities and peoples protesting against a newly enacted agrarian reform law.(11) Indigenous peoples had organized to block transportation along portions of the Panamerican highway, had reportedly taken over some Government buildings and three oil installations in the Oriente. A number of violent confrontations were reported.
On September 27, 1994, the President invoked his constitutional authority in times of national emergency to authorize the armed forces to intervene in the "control, prevention and repression" of crime throughout national territory. Decree 2128 orders that the military intervene to protect personal security, as well as public and private goods. It must be noted that the decree expressly exempts members of the armed forces acting pursuant to the decree from civilian criminal processes or punishment except as provided under Article 134 (now Article 165) of the Constitution.(12) The decree also provides that where the police are not available to act, armed forces acting pursuant to this decree are authorized to detain persons for up to 48 hours before turning them over to a judge.
As a consequence of the situation of conflict in the region of Ecuador's border with Peru, on January 27, 1995, President Durán Ballén invoked his constitutional authority and declared a national state of emergency by means of Executive Decree No. 2487.(13) This Decree was eventually revoked by the Court of Constitutional Guarantees by means of Resolution No. 201-95-CP issued in October of 1995, pursuant to its determination that the cause for the measures no longer existed, and therefore the prejudice to individual liberties could no longer be justified.(14)
In January of 1996, President Durán Ballén ordered a state of mobilization to ensure that workers at state electrical companies who were protesting the partial privatization of this sector were prevented from stopping service.(15)
August 1996 reports indicated that one of President Bucaram's first acts in office was to decree a state of national emergency calling for special measures to combat delinquency. Decree Number 30 contemplates an ongoing role for the military in anti-crime efforts.(16)
Article 27 of the American Convention permits a State Party to derogate from its obligations thereunder "[i]n time of war, public danger, or other emergency that threatens the independence or security" of the State. The conditions for this type of exceptional action are stipulated and strict. First, the circumstances invoked to justify exceptional measures must be grave, constituting an imminent threat to the life of the nation. Second, any measures taken pursuant to a declaration of emergency are valid only "to the extent and for the period of time strictly required by the exigencies of the situation," and only in so far as they do not involve discrimination and do not conflict with other international obligations. Third, the individual guarantees identified in Article 27.2 may not be suspended to any extent or under any circumstance. Fourth, other guarantees may be suspended only in accordance with the strict criteria enumerated above in the second point. Fifth, the State Party wishing to avail itself of this prerogative must immediately notify the other States Parties through the Secretary General of the OAS. The notification must indicate a) the provisions which have been suspended, b) the reasons therefore, and c) the date set for termination.
The Government has, in every instance detailed above, failed to comply with the Article 27.3 requirement of immediate notification through the Office of the Secretary General that the right of suspension is to be exercised. The only substantive information received from the Government concerning any of these declarations was a note of December 13, 1995, sent in response to a request for information by the Commission, notifying it that the Tribunal of Constitutional Guarantees had revoked the January 1995 declaration.
The imposition of a state of exception is, according to Ecuadorean domestic legislation as well as international law generally, a constitutionally authorized mechanism to respond to a situation of external attack or a serious disturbance of public order which cannot be controlled by ordinary measures. As the Court of Constitutional Guarantees of Ecuador has indicated, the employment of exceptional measures implies that the normally applicable processes are insufficient to resolve the presumed threat to the country.(17) The Commission has regularly reviewed and analyzed states of emergency, and has reiterated on numerous occasions that any suspension of guarantees must comply with the criteria of necessity and proportionality articulated in Article 27 of the Convention. In this regard, several of the decrees emitted by the Executive during the Administration of President Durán Ballén raise prima facie concerns.
In particular, human rights groups and community leaders have expressed serious concern over the provision in mobilization decree 2128 which exempts members of the military from penal prosecution in relation to the performance of their exceptional duties. In a meeting with the Commission held during its observation in situ, the Minister of Defense explained that, according to this provision, members of the armed forces were subject only to the terms of the Military Criminal Code, which he suggested was in some cases stricter than the Criminal Code. Just prior to the Commission's visit, Defense Minister Gallardo had been quoted by a reporter as stating that, pursuant to the granting of certain police powers to the armed forces, certain legal prerogatives were necessary for the forces to act effectively. He stated that armed forces personnel have been trained so that neither abuses nor excesses will be committed.(18)
The Commission has previously expressed the view that measures which enable the military to perform police functions raise profound concerns.(19) First, the military mission is clearly distinct from that of the police. The mobilization of the armed forces to combat common crime means deploying troops trained for combat in situations which require specialized training in law enforcement. Law enforcement personnel are trained to interact with civilians, combat troops are trained to fight a designated enemy. Moreover, the use of the armed forces, which serve under the authority of the Executive, to carry out criminal investigation activities which should be under the ultimate authority of the judiciary raises a serious institutional concern with respect to the separation of powers.
Article 27.2 of the American Convention expressly prohibits any suspension of the judicial guarantees which are essential to protect non-derogable human rights.(20) Moreover, exceptional measures are valid only to the extent and for the time strictly required by the exigencies of the situation. The Inter-American Court has stated that this requires "that in any state of emergency there be appropriate means to control the measures taken, so that they are proportionate to the needs and do not exceed the strict limits imposed by the Convention or derived from it."(21) Accordingly, the right to judicial recourse for protection against the violation of a protected non-derogable right may not be suspended.(22) As the Commission has repeatedly stated, the appropriate and effective judicial recourse for alleged human rights violations is that provided through the civilian judicial processes. The preclusion of criminal prosecution set forth in the Decree of Mobilization effectively suspends the right to this type of judicial recourse for potential victims.
The Commission welcomes the renewed commitment to promote and protect the rights of the inhabitants of the country demonstrated by a number of the 1995 amendments to the Constitution. These measures should be further strengthened with others, discussed in various sections of this report, to achieve the more effective protection of the individual rights and freedoms recognized in the American Convention. The Commission hopes that the creation of the Office of Ombudsman will provide an impetus for the pursuit of such measures, and for new gains in human rights protection.
The Commission also recognizes the importance of Government efforts to enhance respect for human rights among members of the police and armed forces through specialized training activities. It is critical that national authorities recognize the importance of training, and that such programs be coupled with additional legal and organizational measures to truly institutionalize a culture of respect for human rights within the police and military.
The Commission recommends that measures be taken, in compliance with Article 2 of the American Convention, to ensure that any alleged human rights violation is promptly and thoroughly investigated, and that any person implicated in the commission of such a violation, whether a civilian or a member of a public security force, is submitted to the appropriate process of civilian justice.
The Commission recalls that, in accordance with the conditions established in Article 27 of the American Convention, any declaration of a state of emergency must meet certain criteria. Certain individual guarantees may never be suspended, the remaining rights may be limited only in accordance with the criteria set forth in the Convention. Bearing in mind that the declaration of a state of emergency is a measure of an absolutely exceptional nature, the Commission wishes to emphasize to the authorities that the powers normally attributed to the State should be utilized to resolve the great majority of situations.
In addition, any State seeking to avail itself of the exceptional measures available under Article 27 of the Convention must immediately inform the other States Parties, through the Secretary General, as to which guarantees it has suspended, the reasons therefore, and the date set for the termination of such suspension. It is recommended that the State take steps to provide the information required and to ensure full compliance with this requirement in the future.(23)
B. THE SOCIOECONOMIC CONTEXT AND ATTENDANT RIGHTS
During the Commission's on site visit to Ecuador, human rights organizations and representatives of a wide range of social sectors expressed profound anxiety with respect to socioeconomic conditions in the country. Among the specific concerns raised were the effects on the population of: measures taken to trim social spending and to substantially reduce the number of public sector employees, unemployment generally, increases in the price of fuel, and other measures aimed at modernization and privatization. In discussions with the Commission, Government officials referred to the difficulties inherent in determining how best to allocate scarce funds.
In its March 19, 1997 submission of observations, the Government recalled the following overall advances, which represent important improvements. Between 1990 and 1994, the average life expectancy for women had increased from 67.6 to 71.4 years, and that of men had increased from 63.4 to 66.4 years. Infant mortality over the same period declined from 63/1000 live births to 44/1000. Maternal mortality had declined as well, from 170 to 120 of 100,000 live births.
With respect to living conditions, however, Government figures indicate that approximately two thirds of the population lives in poverty, while nongovernmental sources estimate that between 75% to 80% of the inhabitants subsist at levels below the domestic poverty line.(24) These percentages compare to reported figures of 47% in 1975 and 57% in 1988. Current data reflects that over half of all Ecuadoreans lack sufficient income to cover basic necessities (represented by the "family shopping basket" used to measure the retail price index).(25) While the situation of poverty varies according to locality, it is especially problematic in rural and urban areas of the country generally, and in the marginal communities on the peripheries of urban areas. The Government indicated in its March 19, 1997 submission that poverty is the most serious obstacle that prevents Ecuadoreans from enjoying the economic, social and cultural rights recognized in various international human rights instruments. In order to address this problem more coherently, the Government has designed the National Program for Overcoming Poverty, which seeks to define a social strategy of emerging investment, to coordinate the policies and actions of government entities, and to impel collaboration and advances in the private sector.
World Bank figures indicate that, on national average, the wealthiest 20% of households receives a 53% share of household income, while the bottom 20% receives a 5% share. These same indicators report that social spending as a percentage of GNP dropped from 7.1% in the period from 1980-85 to 3.9% from 1989-94.(26) The indigenous population of the country, particularly in the rural Sierra and Amazon regions, is disproportionately disadvantaged by poverty and the lack of basic services, with the differences in education and health indicators identified as "alarming."(27)
Unemployment and underemployment are acknowledged to be chronic problems.(28) Workers in a number of sectors, including health, prisons, public transport, ministries, education, and power have carried out strike after strike over the past several years in protest of low wages and working conditions.
The decreasing availability and quality of health care in the public sector has been identified as a source of increasing concern. Spending on health has been cut, from 8.6% of the general State budget in 1988, to 7.5% in 1992, to 4.9% in 1995.(29) Pursuant to Executive Decree 114, public hospitals which previously provided care to needy individuals without cost may now charge for services, which leaves the indigent with extremely limited access to care. A series of studies has identified the existence of substantial gaps in the provision of basic services and the "insufficient quality of health services due to maldistribution of resources and underfunding" as core problems.(30) In its observations on the present report, the Government noted that it had secured funding through the Inter-American Development Bank to increase access to health services in rural areas.
In its March 19, 1997 submission, the Government cited data compiled by the Pan-American Health Organization reporting that 79.8% of the population enjoyed access to potable water, 41.3% to sewage systems and 68.5 to basic services. For the period from 1990 to 1995, UNDP data indicated that nationally, 71% of the population enjoyed access to safe drinking water.(31) Disaggregated, the figures report that, while 82% of the urban population had access to potable water, only 55% of the rural population enjoyed similar access.(32) The Government noted that, in fact, rural access to potable water and sewage systems doubled between 1980 and 1990. Although the coverage of basic services remains limited in rural areas, significant advances have been realized.
Young people under 25 years of age constitute roughly 60% of Ecuadorean society, with children under 15 comprising approximately 38%. The Government of Ecuador has articulated a legislative commitment to ensuring the well-being of children, having ratified the Convention on the Rights of the Child soon after it was opened for signature, and having adopted a new Code for Minors in 1992 to coordinate legislation in this area and bring it into conformity with its commitments under that UN Convention.(33) Governmental and non-governmental sectors have played a strong role in bringing attention to the plight of children and energizing these responses.
Notwithstanding these developments, the situation of poverty which is affecting the majority of the population has a disproportionately harsh impact on minors. Although the Government is carrying out programs focused on children, including "Operation Child Rescue" (aimed at combatting malnutrition and ensuring access to education), and NGO's and international organizations including UNICEF and the World Food Program are actively working to provide services to children in need, such programs reach only a small percentage of the affected population. While the Government has made gains in reducing malnutrition rates among children, approximately 45% of children under five years of age are malnourished.(34)
With respect to education, while Ecuador has a fairly high literacy rate compared with the region generally, almost 90% in urban areas and approaching 80% in rural areas, spending on education continues to decline in both real terms and relative to the GNP.(35) In light of the well-documented linkage between education and poverty reduction, it may be noted that, while primary school attendance is uniformly high, secondary school attendance and drop out rates are closely correlated with poverty.(36) In its March 19, 1997 observations on the report, the Government recalled that Article 40 of the Constitution establishes that every inhabitant is to have access to education, without discrimination. The Government expressed great concern for the fact that this right is limited by the insufficient allocation of funds to ensure access to basic education, as well as by the situation of poverty affecting many in the country. These limitations, it noted, are particularly pronounced in rural areas.
The Government of Ecuador has developed a number of programs aimed at expanding access to basic services to those in need. In 1993, the Social Investment Fund of Ecuador (FISE) was created by Executive decree. The FISE is used to finance programs and projects to meet the basic needs of vulnerable groups and those living in the most depressed areas of the country, and has been able to obtain external funding from sources such as the Inter-American Development Bank and the World Bank. The Ministry of Social Welfare is carrying out programs, such as Operation Child Rescue, which aimed at meeting the needs of disadvantaged children.(37) The Ministry of Education and the National Institute of Children and the Family (INNFA) have also developed programs to assist children at risk. The Ministry of Public Health is responsible for a group of programs within its area of competence, including the comprehensive Second Social Development Project: Health and Nutrition (FASBASE), supported by international funding. The social security system extends to approximately a third of the formally employed work force, and while it provides fairly comprehensive coverage for these individuals, the system itself is in crisis.
The State of Ecuador has signified a commitment in favor of the recognition and development of economic and social rights by ratifying the Additional Protocol to the American Convention in the Area of Economic, Social and Cultural Rights, the "Protocol of San Salvador," which has yet to enter into force. Furthermore, Ecuador is a party to the International Covenant on Economic, Social and Cultural Rights of the United Nations.
The Inter-American Commission on Human Rights has analyzed the information detailed above within its mandate under the American Convention, in order to evaluate the effect that current socioeconomic conditions have on the ability of the population to enjoy their rights and freedoms. As the Commission has noted previously, there is an organic relationship between civil and political rights on the one hand and economic and social rights on the other, and the international community has recognized and affirmed the interrelationship and indivisibility of these categories of entitlements.
Within the Convention framework, particular reference must be made to Article 26, which requires States Parties to "adopt measures, both internally and through international cooperation ... with a view to achieving progressively, by legislation or other appropriate means, the full realization" of the economic, social and cultural rights implicit in the Charter of the OAS.(38) While Article 26 does not enumerate specific measures of implementation, leaving the State to determine the most appropriate administrative, social, legislative or other steps to pursue, it expresses a legal obligation on the part of the State to engage in such a process of determination and to adopt progressive measures in this sphere. The principle of progressive development establishes that such measures are to be undertaken in a manner which constantly and consistently advances toward the full realization of these rights.(39)
Clearly, "the existence of widespread extreme poverty inhibits the full and active enjoyment of human rights .... [E]xtreme poverty and social exclusion constitute a violation of human dignity ...."(40) The problem of extreme poverty, which prevents individuals from satisfying fundamental needs, implicates a range of human rights starting with the right to physical integrity. As the Commission has stated:
The essence of the legal obligation incurred by any government in this area is to strive to attain the economic and social aspirations of its people, by following an order that assigns priority to the basic needs of health, nutrition, and education. The priority of the "rights of survival" and "basic needs" is a natural consequence of the right to personal security.(41)
There is international agreement on the priority which must be accorded to advances in this sphere. As set forth in Article I-25 of the Declaration and Programme of Action adopted by the World Conference on Human Rights:
urgent steps are necessary to achieve better knowledge of extreme poverty and its causes, including those related to the problem of development, in order to promote the human rights of the poorest .... It is essential for States to foster participation by the poorest people in the decision-making process by the community in which they live, the promotion of human rights and efforts to combat extreme poverty.
The UN Commission on Human Rights has affirmed that full respect for social and economic rights
is inextricably linked with the process of development, the central purpose of which is the realization of the potentialities of the human person in harmony with the effective participation of all members of society in relevant decision-making processes as agents and beneficiaries of development, as well as fair distribution of the benefits of development.(42)
The norms of the American Convention, particularly Article 23 concerning the right to participate in the conduct of public affairs and to have access to the public service of one's country, and Article 24 concerning equality before the law, correspond to these principles of popular participation and equality of opportunity.
Reference is also made to certain central principles reflected in the American Convention, for example, the norm of nondiscrimination which is reflected in Articles 1 and 24 of the Convention. Article 1 sets forth the duty of the State to respect and ensure the rights established in the Convention on a nondiscriminatory basis, and Article 24 establishes the right of individuals to equal protection before and of the law.
Accordingly, within this framework, the Commission hereby expresses its concern with respect to the human rights situation of the large segment of the Ecuadorean population which is unable to satisfy its basic needs due to poverty. Poverty inhibits the ability of the individual to enjoy his or her human rights. Parties to the American Convention are required in the first instance to respect all the rights and freedoms established therein, pursuant to the terms of Article 1. In addition, Article 1 obliges parties to take reasonable measures to prevent violations of these rights from taking place. These obligations necessarily require the State to ensure conditions whereby the rights of vulnerable and marginalized groups within its society, such as those disadvantaged by the effects of poverty, are protected. The broad principles of non-discrimination and equality reflected in Articles 1 and 24 of the Convention require action to address inequalities in internal distribution and opportunity.
The Inter-American Commission on Human Rights is aware of the imperatives imposed as a result of the current international financial system, and recognizes that the elimination of poverty and the full development of economic, social and cultural rights are complex problems that require concerted action over time. However, this does not mean that Government policies cannot be analyzed, taking into account their capacity to progressively implement economic, social and cultural rights.
The Commission recommends that, in view of the principles of nondiscrimination and equality of opportunity recognized in the American Convention, the State ensure that the policies it adopts do not place a disproportionate burden on the marginalized and most vulnerable sectors of society, particularly those disadvantaged by poverty.
With the recognition that the right to education, to seek and receive information, and to participate in public affairs are essential conditions to more fully incorporate the participation of impoverished sectors of society in decisionmaking processes, the Commission recommends that the State adopt measures to advance these rights, bearing in mind the basic objective of integral development set forth in Article 33 of the OAS Charter, and the obligation established in Article 26 of the American Convention to achieve progressively the full implementation of economic, social and cultural rights.
1. The Ecuadorean legal system continues to accord precedence first to the constitution, then to legislation adopted pursuant to treaties and other international instruments ratified by the government, and finally to internal laws and secondary legal provisions. Ecuador is party to a wide range of international conventions concerning human rights, a number of which are referred to in subsequent sections of this report. Within the inter-American system, Ecuador is party to the American Convention on Human Rights, having ratified it on December 28, 1977, and, pursuant to its declaration to that effect, has been subject to the compulsory jurisdiction of the Inter-American Court of Human Rights since July of 1984. Ecuador has also ratified the Additional Protocol in the Area of Economic, Social and Cultural Rights, which has yet to enter into force.
2. Additional reforms, which are noted infra, establish special protection for the rights of children; recognition of the work of a spouse or cohabitant in the home; new provisions concerning land and property rights; and expanded guarantees with respect to protection of the environment.
3. The procedures for invoking this recourse continue to be those established in Article 458 of the Code of Criminal Procedure.
4. Where such a case exists, the judge is to convoke the parties concerned for a hearing within 24 hours. Where the complaint is well founded, the judge will order the suspension of whatever action is about to transgress the constitutionally protected right. Any such suspension is subject to an obligatory consultation process.
5. This set of reforms is discussed further in chapter V, infra.
6. The Constitutional Court is to be composed of nine members, who will be named by the Congress pursuant to the designation of: two members by the President; two members by the Supreme Court; two members by the Legislature; one by municipal mayors and provincial prefects; one by legally recognized unions, indigenous and campesino organizations; and one by the legally recognized Chambers of Production. Members serve four year terms and may be reelected.
7. Decisions of the Court of Constitutional Guarantees were not self-executing. Where the Court had deemed a piece of legislation unconstitutional, that decision was submitted to the Constitutional Chamber of the Supreme Court for final resolution; or where it decided the act of a public official was unconstitutional, its resolution was remitted to that official for action.
8. The Office of the Ombudsman is a new institution, created as a result of the 1996 amendments to the Constitution. This Office is referred to below.
9. The Minister of Defense indicated to the Commission during its visit that although the military had initially participated in raids, that function was better carried out by the police.
10. States of national emergency had previously been declared for three days in October of 1988, for two days at the end of May 1988, and for two weeks in October of 1989. See generally, L. Despouy, Eighth annual report and list of States which, since 1 January 1985, have proclaimed, extended or terminated a state of emergency [report of the Special Rapporteur appointed pursuant to Economic and Social Council reso. 1985/37], E/CN.4/Sub.2/1995/20, 26 June 1995, at p. 22.
11. The agrarian reform law was later withdrawn and revised. The first version had been declared unconstitutional by the Court of Constitutional Guarantees on June 23, 1994, and was subsequently placed under the consideration of the Supreme Court of Ecuador. The final version enacted is discussed in chapter IX, infra.
12. This Article stipulates that members of the armed forces "enjoy special jurisdiction," except with respect to the commission of common offenses, which will be judged according to ordinary justice.
13. Published in the Registro Oficial No. 621. The State was declared to be a security zone; the nation was mobilized; and requisition provisions were put in effect.
14. Published in, Suplemento del Registro Oficial No. 812, del 30 de octubre de 1995.
15. Foreign Broadcast Information Service 96-012, 18 January 1996 at 67-68, citing EFE (Madrid), 18 Jan. 1996.
16. See, Decreto No. 30, Registro Oficial No. 11, 26 de agosto de 1996.
17. A May 1988 declaration of a state of emergency prompted the Court of Constitutional Guarantees to respond to the President that: "... there was no state of emergency that could be described as a situation of serious domestic unrest to justify such a declaration, since strikes, stoppages, etc. can be dealt with and settled through the exercise of authority by means of ordinary legal procedures, without any need to resort to the state of emergency." Quoted in CCPR/C/58/Add. 9 p. 7.
18. Entrevista con Ministro de Defensa José Gallardo, "El Comercio," pp. 1, 3, 23 de octubre de 1994.
19. See e.g., IACHR, Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/ii.84, Doc. 39 rev., October 14, 1993, 61-62.
20. See, Advisory Opinion OC-8/87 of January 30, 1987, "Habeas Corpus in Emergency Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human Rights)," Ser. A No. 8; Advisory Opinion OC-9/87 of October 6, 1987, "Judicial Guarantees in States of Emergency (Arts. 27.2, 25 and 8, American Convention on Human Rights)," Ser. A No. 9.
21. OC-9/87, para. 21.
22. Id. at para. 23, 24.
23. In its March 19, 1997 submission, the Government indicated that it had duly noted the recommendations made with respect to the use of exceptional measures, that the Foreign Ministry had issued instructions calling for full compliance with the norms applicable in such situations, and that it hoped that recourse to such measures would not be necessary under the Alarcón Administration.
24. See, "En el Ecuador el 67% es pobre," El Comercio, 7 de marzo de 1995; El Comercio, 6 de noviembre de 1994 (citing "Datos Básicos de la Realidad Nacional"). Poverty has increased in the region as a whole. In 1980, 41% of the population of Latin America and the Caribbean was identified as living below the poverty level, while by 1990 that number had climbed to 45%. ECLAC, "Economic and social rights and productive transformation with equity in Latin America and the Caribbean," U.N. Doc.A/Conf.157/PC/61/Add.3, 11 Mar. 1993, para. 9. In 1995, the World Bank characterized approximately 46% of the population of the region as poor.
25. As of January of 1996, it was reported that the minimum wage stood at 134$ (US), while the family shopping basket for a family of five cost approximately $300 (US). CEDHU, "Derechos del Pueblo," No. 91, at 2, enero de 1996.
Studies aimed at reporting the situation of poverty vary in result. For example, surveys financed by the World Bank, using consumption rather than income as the standard, indicated that just over half of the population lived in or was vulnerable to poverty in 1994. Those identified as "most seriously endangered" were the 1.7
million people unable to buy a basic food basket (providing sufficient nutrition to meet minimum calorie requirements), even if each spent all his or her income on food. World Bank, Ecuador Poverty Report, Report No. 14533-EC, November 27, 1995, at Vol. II p. 5.
26. World Bank, Social Indicators of Development, 100-101 (1996).
27. Ecuador Poverty Report, supra, vol. I at iii, vol. II at 29-31.
28. Labor Minister Alfredo Corral was cited as stating that Ecuador has one of the highest unemployment rates in the region, with 14% of its economically active population out of work (up from 8.9% in 1992) and with approximately 50% underemployment. El Comercio, March 18, 1994, see also, El Comercio, Feb. 6, 1994, p. A-9.
29. See, Derechos del Pueblo, Nov. de 1994, at 5, citing, Federación Médica Ecuatoriana; see also, Organización Panamericana de la Salud, Las Condiciones de Salud en las Américas (Publicación Científica No. 549), 176 (1994); El Comercio, supra, n. 1. It has been reported that the operating funds accorded to the public hospitals of the country are insufficient to meet normal operating expenses, much less to meet the increasing needs of the population. El Comercio, id.
30. Ecuador Poverty Report, supra, at 19 & n. 24 (citing studies by IDB, ILDIS, Mesa-Lago, UNICEF-DyA, World Bank).
31. UNDP, Human Development Report 144 (1996). On average in Latin America and the Caribbean, 80.1% of a given national population has access to safe drinking water.
32. Id. at 152. The average breakdown for the region is 90.1% and 57.7%, respectively.
33. The Code requires, for example, that the "best interests of the child" be considered in any judicial, administrative or legislative decision making; treats the problem of mistreatment and sexual abuse of minors; and recognizes special provisions for minors accused of infractions of the law. However, it was reported during the Commission's visit that a number of the dispositions, for example requiring the implementation of new programs, had yet to be complied with. See, Foro Ecuatoriano Permanente de Organizaciones por y con los Niños, Niñas y Adolescentes, Una Promesa Incumplida a los Niños Ecuatorianos, 56 (1994).
34. Social Indicators, supra, at 100.
35. See, "Asignaciones Sociales en el Presupuesto," El Comercio, 6 de noviembre de 1994, at A2.
36. Ecuador Poverty Report, at 13-15. While up to 90% of the children of the highest expenditure quintile attend secondary school, only 30% of the children of the urban poor, and "almost none" of the children of the rural poor attend secondary school. Id. at 14.
37. However, at the end of 1994 it was reported that Government funding for programs to protect children, including Operation Child Rescue, was insufficient, and that some 1.3 million children were "at risk" because they had no social protection at all. Andean Newsletter, No. 97, at 5, December 1994.
38. See, inter alia, Articles 2.f, 3.i-m, 29, 30, 33, 44-51, Charter of the Organization of American States, as amended by the Protocol of Buenos Aires (1967) and the Protocol of Cartagena de Indias (1985), T.S. No. 1-E, OEA/Ser.A/2 Rev. 3.
39. See generally, IACHR "The Realization of Economic, Social and Cultural Rights," in Annual Report of the IACHR 1993, at 519, 523-24, OEA/Ser.L/V/II.85, Doc. 9 rev., Feb 11 1994.
40. Declaration and Program of Action adopted by the World Conference on Human Rights, Articles I-14; I-25.
41. IACHR, Ten years of Activities, 322 (1982).
42. Reso. 1993/14, adopted 26 February 1993, Report of the Forty-Ninth Session, E/CN.4/1993/122, supp. 3, at para. 11. Sustainable human development "generates economic growth but distributes it equally;  regenerates the environment rather than destroying it; [and] empowers people rather than marginalizing them. It is development that gives priority to the poor, enlarging their choices and opportunities and providing for their participation in decisions that affect their lives." United Nations Development Program, Human Development Report 1994, p. iii.