THE RIGHT TO LIFE
The right to life is of special importance as the essential basis for the realization of all other rights, and is accordingly recognized under Ecuadorean law. Article 19.1 of the Constitution of Ecuador establishes that: "The State guarantees the inviolability of life and physical integrity. There is no death penalty. Torture and all inhuman or degrading treatment are prohibited."(1)
The American Convention guarantees the right to life in Article 4, which provides in pertinent part that:
Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.
The right to life is a peremptory norm under international law, and, as set forth in Article 27 of the Convention, may not be derogated from under any circumstance.
The Commission has received a number of complaints alleging violations of Article 4 by agents of the State of Ecuador.(2) The allegations brought to the attention of the Commission are isolated but consistent. It has been alleged in a number of cases that members of the National Police have been responsible for killings, but have acted with impunity due to the practice of trying cases involving police defendants in special police courts. There have also been cases in which members of the armed forces were implicated in killings or disappearances, but the crimes were left unprosecuted and unpunished. The recently issued judgment in the Restrepo case (discussed below) is a notable exception.
Yearly figures released by the Ecuadorean non-governmental organization CEDHU synthesize and report the information and denunciations of abuse of power or force received during the period. For the year of 1995, CEDHU reported 34 violations of the right to life and 2 disappearances.(3) At the close of 1994, CEDHU recorded 20 violations of the right to life and 4 disappearances.(4) For 1993, CEDHU indicated 24 violations of the right to life and 4 cases of disappearance.(5)
The types of allegations about which the Commission has received information include: killings by members of the security forces (the police and military); deaths in official custody; excessive use of force by security forces; killings and persecution by paramilitary style bands; and disappearances.
A. Denunciations of Alleged Killings Attributed to Members of the Security Forces
The Commission is currently studying various petitions received during its on site visit which allege arbitrary killings by state agents. The first, related to events which took place in 1992, alleges that a policeman shot and killed a minor of 16 years of age while inebriated. The second, concerning events of 1993, alleges that a policeman arbitrarily shot and killed an individual walking along a public street. A similar case alleges that a policeman acting outside the scope of his duties shot and killed a young man in the street in 1987. Another case, concerning events in 1993, raises allegations that members of the military carrying out an anti-crime raid entered a home and shot and killed three unarmed individuals, one of whom was physically disabled. Each of the foregoing cases was brought before the Commission on the basis of the further claim that the domestic processes of justice had failed to determine responsibility for these alleged homicides.
B. Cases Concerning Deaths of Individuals in Official Custody
The Commission is analyzing several claims alleging that the deaths of individuals in official custody implicate the responsibility of the State for violations of the right to life. One case, concerning events of 1992, alleges that police agents located an individual suspected of shooting a fellow officer, that they threw the suspect from a second story window to the street below, and then drove off with him in a police car. His body, reportedly bearing signs of torture and a fatal bullet wound, subsequently turned up in the morgue. Another case, dating back to events of 1993, alleges that the bodies of three individuals who had been detained by the police just hours before turned up in the local morgue. Each reportedly bore signs of torture and bullet wounds. The petitioners in each case allege that the domestic authorities failed to adequately investigate and process these claims.
C. Claims Alleging the Abuse of Force by Law Enforcement Officials
Economic adjustment measures and legislative reforms have sparked waves of protests and strikes in Ecuador over the last several years. There have been a number of general strikes as well as occupations of official facilities by protesting groups. A significant portion of this activity is centered in the capital, but areas throughout the country have been affected. Some of these activities have led to violence, and injuries have been reported both among those protesting and the public security forces responsible for maintaining order.
Special concern is raised, however, over reports of deaths resulting from these encounters. In January of 1995, human rights groups reported that members of the National Police had fired into a crowd of protesters near the Central University, and that a high school student had died as a result of being struck by a "dum-dum" bullet, which exploded in his body and damaged his internal organs.(6) Press reports carried Government statements to the effect that the shots had been fired by unidentified persons who had infiltrated the protestors. Government officials also noted that two police officers had been injured by gunshots, and six by stones thrown by protestors. A similar death was reported in November of 1994.(7) In November of 1995, a secondary student who happened to be in the vicinity of a protest by students of the Montúfar school reportedly died of a skull fracture after being hit in the head by a tear gas canister.
The Commission has also received detailed information concerning anti-crime operations carried out by military and police forces which have resulted in civilian deaths. For example, in March of 1993, media sources and human rights groups reported that members of the Special Operations Group of the National Police carried out an operation which included the shooting of a very elderly woman.
In some instances media reports have indicated careful restraint on the part of Government forces;(8) in other instances reports have raised concern. The use of force in the performance of law enforcement duties must be strictly circumscribed to circumstances where it is necessary and proportionate. To illustrate, Article 3 of the Code of Conduct for Law Enforcement Officials adopted by the U.N. General Assembly in 1979 sets forth that: "law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty." The IACHR is well aware that it is the role of Government to maintain peace and security within national territory, and that situations of social tension pose special challenges. The Commission wishes to reiterate, however, that such challenges must be met with action within the boundaries of domestic and international law.
D. Claims of Persecution by Paramilitary-style Groups
The Commission received several reports of killings and persecution by paramilitary-style groups operating in certain regions of the country, particularly in the rural Sierra. The Commission is currently processing a case in which its is alleged that a local committee was in fact operating as a para-military style band and terrorizing individuals in the community. It was alleged that these men had broken into homes, burned buildings, arbitrarily detained and tortured people, and had shot and killed a member of the community in March of 1993. The petitioners alleged that, despite their repeated protests to those responsible for law enforcement in the area, nothing had been done to investigate or stop this group.
E. Claims Concerning Disappearances
Ecuador has not suffered the effects of massive or widespread disappearances, but has been marked by a disturbing series of sporadic cases. Reports suggest approximately 25 to 30 forced disappearances between 1985 and 1995, most of which occurred between 1985 and 1988.(9)
The UN Working Group on Enforced or Involuntary Disappearances reported 17 cases of disappearances in Ecuador between 1985 and 1992.(10) Of these 17 cases, the whereabouts or fate of the person or persons concerned had presumably been clarified in eleven cases.(11) The CEDHU, based in Quito, reported somewhat higher numbers over this period. The Working Group reported no new cases in 1993 or 1994, but reported the transmission of three new cases in 1995. Each involved the assumed detention of Peruvian citizens by Ecuadorean authorities during the period of the undeclared border conflict between those two countries. Two of those cases were apparently clarified, and one remained pending.(12)
The Inter-American Commission on Human Rights is currently processing cases concerning alleged disappearances at the hands of agents of the Ecuadorean State in 1988 and 1989. The case of Consuelo Benavides was submitted by the Commission to the Inter-American Court of Human Rights in March of 1996. The Commission received a series of petitions claiming the disappearance and presumed detention of Peruvians within the territory of Ecuador during the period of conflict in the border region, and is still working to clarify the situation of one individual, allegedly detained at the end of January, 1995, who apparently remains missing.
One of the more notable developments in relation to this category of cases was the June 27, 1995 affirmation by the Supreme Court of the conviction and sentencing of seven members of the National Police for having disappeared Andres and Santiago Restrepo. The brothers, who were 17 and 14 years of age at the time, were detained by police while driving together on January 8, 1988, and were never seen again. The case is widely known throughout Ecuador, as well as in Colombia and abroad. In response to the mobilization that had built around the case, on July 13, 1990, President Borja established a Special Commission to investigate. The final report, which was delivered to the President and made public on September 2, 1991, discounted several theories that had been proffered to cover up the crimes and found in no uncertain terms that the police had been responsible for their forced disappearance and deaths. On the same day this report was released, President Borja disbanded the Servicio de Investigación Criminal, which had been responsible for carrying out the crimes as well as attempting to conceal them.
The Supreme Court issued its judgment on November 15, 1994, and confirmed it on June 27, 1995. Officers Guillermo Llerena and Victor Camilo Badillo were sentenced to serve 16 years for murdering Santiago and Andres, who were then 14 and 16. Colonel Trajano Barrionuevo, Lieutenant Manuel Sosa and Sub-Lieutenant Doris Morán were sentenced to eight year terms for complicity in the murders. Former Police Commander General Gilberto Molina and Officer Hugo España were sentenced to two year terms as accessories after the fact. More than 30 other individuals were acquitted. However, those involved in the case through the right of private accusation have indicated extreme disappointment in the failure of the judiciary to fully remedy the crimes and clarify the responsibility of the State in this matter.
The proper administration of justice is an essential element in ensuring that individuals responsible for violations of the right to life and other rights are identified, held responsible and punished. The prevention and deterrence of such violations can only be accomplished when it is clearly understood that perpetrators will be held responsible. The American Convention requires that all alleged violations of the right to life be adequately investigated; where this right has been violated the person or persons responsible must be identified and submitted to the appropriate criminal processes, the survivors of victims are entitled to compensation, and measures must be taken to prevent the recurrence of violations.
The cases under study by the Commission share a common claim that the domestic processes the State is required to pursue in response to alleged violations of fundamental rights were either unavailable or ineffective. In general, the allegation that an individual has been arbitrarily deprived of his or her right to life requires prompt and thorough investigation. The United Nations, pursuant to Economic and Social Counsel Resolution 1989/65, set forth detailed standards for such investigation in its "Principles of the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions."
Claims which allege the commission of abuses and crimes by private citizens give rise to a corresponding duty on the part of the authorities to investigate and to respond. This would be the case, for example, where it is claimed that individuals acting as paramilitary style bands are able to terrorize local residents at will. Citizens must have effective access to the protections the State is obliged to afford.
The Government of Ecuador has recognized that the protection of human rights is a vital national duty, and has therefore conducted human rights training courses for some members of the public security forces. This kind of specialized training makes a critical contribution to the creation of a culture of respect for human rights. These kind of forward-thinking programs are an important step. The State of Ecuador must, however, take additional and stronger measures, through the action of each branch of Government, to inculcate within its public security forces the primacy of the right to life and human rights generally.
The Commission encourages the Republic of Ecuador to build upon the gains it has realized in undertaking human rights training for some members of its security forces, and in investigating and processing certain cases of violations, to ensure that adequate measures to prevent and respond to violations are in place, and to ensure that an appropriate response is made in every case where the right to life is alleged to have been violated. Accordingly, the Commission recommends:
That the State carry out prompt, thorough and impartial investigations of all cases of disappearances which have yet to be resolved, prosecute and sanction those responsible, and compensate the survivors of the victims. This duty continues until the fate of the victim is clarified and the foregoing obligations have been discharged.
That the State act to ensure that claims alleging a violation of human rights by a member of the police or armed forces are promptly and thoroughly investigated, and in the appropriate case processed through the civilian judicial mechanisms.
That the State adopt the measures necessary to ensure that members of the public security forces under investigation for alleged violations of the right to life are suspended from duties which involve the use of or access to firearms pending the full resolution of the complaint.
That the State implement the measures necessary to ensure that police forces charged with monitoring protests and demonstrations receive specialized training in appropriate crowd control measures.
That the State develop additional strategies to respond to citizen complaints alleging activities by paramilitary actors. This might, for example, include studying the regional allocation of public security forces to determine whether certain sectors are in need of enhanced protection, and reviewing the systems which are supposed to ensure the accountability of local-level police branches.
That the State undertake the legislative measures necessary to ensure that gross human rights violations, such as extra-judicial executions, disappearances and torture are not subject to any statute of limitations.
The Commission encourages the State to ratify the Protocol to the American Convention to Abolish the Death Penalty, and the Inter-American on Forced Disappearance of Persons.
1. Ecuador ceased applying the death penalty in 1897. As noted by the Government in its March 19, 1997 submission, Ecuador has been party to the Genocide Convention since 1985, and has consistently expressed its condemnation of the practices of genocide and ethnic cleansing in various international fora.
2. In this chapter and throughout this report, the Commission makes reference to petitions received. The Commission in no way prejudges the final result with respect to these denunciations being processed within its individual petition system. However, the Commission considers it to be of interest, without mentioning the names of the victims, to refer to the general contents of certain petitions. This is consistent with the Commission's longstanding practice with respect to this type of report.
3. CEDHU, "Derechos del Pueblo," No. 91, at 3, 10-11, enero de 1996.
4. CEDHU, "Derechos del Pueblo," No. 85, at 11-12, enero de 1995.
5. CEDHU, "Derechos del Pueblo," No. 79, at 6, enero de 1994.
6. CEDHU, "Derechos del Pueblo," No. 86, p. 6, marzo de 1995; No. 81, p. 8, mayo de 1994.
7. CEDHU, "Derechos del Pueblo," No. 79, p. 8, enero de 1994.
8. See, e.g., Latin American Weekly Report, "General strike passes off quietly," p. 64, 17 Feb. 1994.
9. In August of 1996, Hugo España, a former member of the Criminal Investigation Service [SIC], came forward with allegations that a special branch of the SIC known as SIC-10 had carried out a series of extrajudicial activities over a period of years, including the torture and disappearance of as many as 150 or more victims. He indicated to a journalist the location of what he claims are two clandestine grave sites where these victims were buried. Reports indicate that these allegations are as yet unconfirmed, and that a special committee has been set up within the National Congress to investigate.
10. "The majority [of these cases] concerned persons who were reportedly arrested by members of the Criminal Investigation Service of the National Police. The disappearances occurred in Quito, Guayaquil and Esmeraldas. In three cases the victims were children." U.N., Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1995/36 at 33, 30 Dec. 1994.
11. Nine cases were clarified through the responses provided by the Government: two persons were imprisoned; two had been extradited to Peru; three were dead; one was abroad; and one had escaped from detention. Two cases were clarified by non-governmental sources: one person had been freed from detention; one was dead. Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1994/26, 22 December 1993, at 48.
12. Report of the Working Group on Enforced or Involuntary Disappearances, E/CN.4/1996/38, 15 January 1996, at 34-35.