CHAPTER V
THE RIGHT TO HUMANE TREATMENT
One area of great concern for the IACHR with respect to the situation of human rights in Ecuador is the treatment of detainees by the police and security forces. While there was a period during which national authorities acknowledged that torture was used as a method of political repression,(1) reports indicate that torture and mistreatment are now applied primarily in connection with criminal investigations. The Commission has received a number of reports detailing inhumane treatment and torture of detainees by public agents for the purpose of coercing confessions. Such violations have been complained of in localities throughout the country.
Torture and inhuman treatment are prohibited by the domestic and international norms by which Ecuador is bound. "Torture and all inhuman or degrading treatment" are forbidden by Article 19(1) of the Constitution. Article 19(17)(e) specifies that no one implicated in a criminal process may be forced to make a declaration against his interest. Article 128 of the Code of Criminal Procedure specifies that an accused may not be physically or morally coerced to implicate him or herself; methods employing violence or drugs, or which in any way interfere with a freely rendered declaration are prohibited. The Criminal Code sets forth that agents of the police or security forces who coerce declarations by means of "whip, imprisonment, threat or torture" shall be subject to imprisonment from two to five years. "Persons who have issued or executed an order to torture prisoners or detainees by holding them incommunicado for more time than the law permits, or by using shackles, stocks, bars, handcuffs, rope, unsanitary (punishment) cells or other forms of torture, shall be punished by one to five years imprisonment, and deprivation of their political rights for the same length of time."(2)
As a state party to the American Convention, Ecuador is bound by the norms set forth in Article 5 which recognize the right of every person "to have his physical, mental, and moral integrity respected," and prohibits the use of torture and cruel, inhuman or degrading punishment or treatment."(3) The prohibition of both torture and inhuman treatment is absolute; the terms of Article 5 may not be derogated from under any circumstance. The distinction between these terms is primarily based on the characteristics, purpose and degree of severity of the treatment at issue.(4) Within the inter-American human rights system, torture is understood as:
any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.(5)
The use of torture and inhuman treatment by Ecuadorean law enforcement and security personnel has been the subject of international attention and concern.(6) The UN Special Rapporteur on torture reported that, during 1995, he transmitted information on twenty four individual cases to the Government of Ecuador, and one request for urgent action.(7) During 1994, he reported processing three cases alleging torture and abuse by the police and armed forces, two of which concerned multiple victims, and conducting follow up work on six cases dating from 1992-93.(8)
Cases of torture and inhuman treatment have also been reported by national human rights bodies. CEDHU chronicles new cases in almost every issue of its monthly publication "Derechos del Pueblo," and publishes a yearly synthesis of its human rights statistics. Statistics for 1995 indicated that CEDHU had received complaints or information alleging that 63 individuals had been victims of torture.(9) The statistics for 1994 reported allegations of torture against 82 individuals.(10) ALDHU reported in a 1992-93 study that more than 50% of the prison population reported having been punished for the purpose of forcing a declaration.(11)
As the Government agreed in its observations on this report, the use of torture and mistreatment by the police has been periodically identified as a problem by the national authorities, with certain measures taken in response. Most notably, in September of 1991, President Borja issued Decrees number 2693 and 2694 abolishing the Criminal Investigation Service [SIC] of the National Police. The decrees were announced on the day the President received the report of the international commission appointed to investigate the disappearance of the Restrepo brothers. Throughout the Febres Cordero and into the Borja Administrations, complaints against the SIC had alleged that its members practiced torture as a matter of course. The eradication of the SIC was an effort to address these very serious allegations.
Plans called for the SIC to be replaced by the Judicial Police, a specialized technical body for criminal investigation provided for in the Code of Criminal Procedure, with the General Police Command and Under-Secretary of Justice continuing to monitor investigation activities in the interim. Budgetary limitations were cited as hindering the implementation of this plan, and the Crime Investigation Office [OID] designated to replace the SIC continued under the control of the National Police. In the interim, the Commission was informed during its visit that officers from the SIC were transferred to the OID, and that a delegation comprised of representatives from CEDHU, the Asociación para Derechos Humanos, and a member of Congress made a visit to the OID and found what were alleged to be the tools used to torture detainees. They found electric cables, a hood, a club, and a tank allegedly used to submerge and almost suffocate victims. These, it was alleged, were the tools previously used by the SIC. Reports indicated that the Judicial Police actually began operating in Quito at the end of 1994, and would eventually spread throughout the country.
The IACHR is currently studying a number of petitions alleging the perpetration of acts of torture or inhuman treatment by members of the police or security forces. One case raises charges that in 1993, members of the police began carrying out a series of reprisals against an individual who helped implicate them in a crime. The petitioners allege that the victim was arbitrarily arrested, beaten and held for a period of days, during which time he was subjected to beatings, the practice known as "the submarine" (submersion of the head or body of the victim to the point of near suffocation) and the application of electric current, for the purpose of coercing a false confession.
Several of the cases before the Commission which deal principally with the right to life involve allegations of torture. One case, referenced in section IV.B, alleges that police threw a suspect from a second floor window to the street below, and that the suspect was further tortured before being shot. The official autopsy records a series of pre-death wounds, with extensive areas of ecchymosis, hematoma, excoriation and burns. The other case referred to in that section includes claims that the bodies of three shooting victims bore signs of torture. The official autopsies record localized areas of excoriation and hematoma, including around the victim's wrists. In another case under study, it is alleged that a detainee who died in custody in 1994 of a presumed overdose of cocaine had been subjected to severe physical mistreatment immediately prior to his death. The official autopsy records areas of ecchymoses, hematoma, excoriation and lesions caused by the application of heat.
Article 5 and the Interrogation of Detainees
The majority of the cases under study which allege torture or inhuman treatment charge that members of the security forces employed methods of physical and/or psychological pressure to coerce detainees to sign "confessions." Nine cases, dating from 1991 to 1994, concern charges against police agents in Quito and localities throughout the country. Most charge that those detained were held incommunicado while physical and psychological pressure were brought to bear. In every case, it is alleged that the methods employed included the use of blunt force, such as beating, punching and kicking. In seven cases it is alleged that police introduced a gas into a hood pulled over the victim's head to produce near suffocation. An additional pair of cases allege the use of the "submarine." In five cases, it is alleged that an electrical current was applied to the skin of victims on various parts of their body, including in two cases the genitals. In each of the foregoing cases, official medical certificates report findings including areas of excoriation, hematoma, ecchymosis, lesions or burns, and in two instances, broken bones.
Two cases under study, which date to 1995 and 1993 and involve multiple victims, raise allegations that members of the armed forces used physical pressure to force detainees to sign false declarations. The allegations raised include beatings and the application of electricity in one case, and deprivation of food, near suffocation with a hood, the application of electricity to the genitals and other methods in the other. In both cases the petitioners claim that psychological pressure, including threats of death, were also used. They charge that the detainees were held incommunicado, for 15 days in the first case, and for periods from eight to 11 days in the second.
The Commission has taken note of the August 1996 decision of the Supreme Court, rejecting the use of confessions which had been coerced under torture, and acquitting those who had been accused in the "Putumayo Case." The Commission values this judicial decision as a significant and appropriate response to the use of coercion against detainees.
Article 5 and Prison Discipline
The conduct and discipline of prisoners is the responsibility of the Department of Diagnosis and Evaluation of each facility. Disciplinary problems are to be reported up the chain of command, from the guard to his or her superior, to the facility Director, and then to the Department of Diagnosis and Evaluation. If an intern commits an act of force or violence, the guard is instructed to place the intern in an isolation cell, without violating his or her "physical or moral integrity."(12) The guiding principles then specify a process of investigation and resolution of the incident, with a set of standards by which breaches are to be measured. The punishment indicated generally consists of a period of solitary confinement and/or suspension of visiting privileges for a set period.
However, information under study by the Commission gives rise to concern that measures causing physical or psychological suffering may be used by some prison guards as a form of intimidation or discipline. "Torture and the club" have been identified as methods of prison discipline by the non-governmental Asociación Latina para Derechos Humanos [ALDHU], which stated that the human rights of prisoners "are constantly violated."(13) ALDHU reported that prison guards violate prescribed procedure and mete out "discipline" through the use of beatings and other forms of physical and mental violence.(14) Moreover, it has been reported that "punishment cells" exist in each facility, with especially poor space and hygienic conditions.(15) The Commission notes that, when asked about this, one prison official at Rehabilitation Center Number Two indicated that their facility does not have any punishment cells, only isolation cells.
The Commission is currently processing two cases in which the petitioners charge that prison guards hit or beat inmates as a form of control or punishment. One case dates back to events of 1990, and charges that a guard hit an inmate on the head with a club. The other dates to 1993, and charges that three guards beat an inmate, causing serious internal damage.
Article 5 and Incommunicado Detention
Detention incommunicado describes the situation of a person in official custody who is cut off from communication with the outside world. Those responsible for the detention thus have exclusive control over the fate of the detainee.
Article 130 of the Code of Criminal Procedure provides for incommunicado detention only 1) pursuant to the order of a judicial authority, and 2) for no longer than 24 hours. The prohibition of incommunicado detention in excess of 24 hours is reaffirmed in Article 19.17.g of the Constitution. Notwithstanding these legal strictures, the Commission has received complaints indicating that many individuals are subjected to days and even weeks of this treatment in the initial period following their arrest. Abuse of this exceptional measure renders the individual unnecessarily vulnerable, and itself may constitute a form of mistreatment:
prolonged isolation and deprivation of communication are in themselves cruel and inhuman treatment, harmful to the psychological and moral integrity of the person and a violation of the right of any person detained to respect for the inherent dignity of the human being. Such treatment, therefore, violates Article 5 of the Convention....(16)
Amnesty International has warned that "Torture most often occurs during a detainee's first days in custody. Those vulnerable hours are usually spent incommunicado, when the security forces maintain total control over the fate of the detainee, denying access to relatives, lawyer or independent doctor."(17)
In the cases under study by the Commission, the detainees were allegedly subjected to ill treatment and torture at the hands of state agents absent access to judicial supervision, communication with family, contact with legal counsel, or access to independent medical assistance. In one case, the family learned the whereabouts of the detainee, and believing that his physical integrity was in jeopardy, sent a doctor to check on him. However, the doctor was reportedly refused access to the facility. The Commission emphasizes that it is indispensable that detainees be subject to judicial supervision at every stage of the criminal process.
CONCLUSIONS
The Commission is aware that the Government has taken certain positive steps, some of which are noted above, to respond to complaints alleging acts of torture and mistreatment by members of the security forces and to strengthen relevant legislation. The Commission particularly notes the efforts taken by Ecuador to train law enforcement and armed services personnel in the area of human rights. Reports indicate that a percentage of law enforcement officers have received some training in human rights, and these activities demonstrate the interest of the State in promoting respect for human rights. The Commission has also noted, pursuant to the observations submitted by the Government, that plans have been set in motion to train prison personnel in human rights as well.
As the IACHR has stated previously, in the constant struggle against the scourge of torture, it is essential that tribunals refuse to attribute probative value to declarations or so-called confessions extracted under torture, and that those responsible for ordering or carrying out torture be criminally sanctioned. It is important to note in this regard that, within the program of constitutional amendments adopted by the State in 1995 is a provision added to Article 110 declaring that no person may be interrogated by a state agent without the assistance of his or her attorney, or, in the case of persons unable to provide their own counsel, a state appointed attorney. Further, any judicial measure which fails to comply with this requirement will be deemed to lack probative effect. Such a measure has the potential to provide a critical safeguard; however, while it may be readily implemented in the case of individuals with private counsel, this is not the case for those who require a state-appointed attorney. As noted in Chapter III, there are few public defenders available (roughly two dozen throughout the country, who are tasked with handling criminal, administrative and civil cases), and their numbers have not been augmented to be able to give effect to this new safeguard.
The consistency of the complaints and reports alleging the use of torture and mistreatment as a method of coercing confessions or a means of controlling or retaliating against individuals in detention indicates that additional steps must be taken. The information available to the Commission suggests that one aspect of the problem is an institutionalized acceptance among some members of the public forces that mistreatment of detainees constitutes a valid method of investigation in criminal cases. The information before the Commission further demonstrates that the message of respect for human rights transmitted by training efforts is not sufficiently supported by efforts to investigate allegations of torture and mistreatment, and to prosecute and punish those responsible. Torture and inhuman treatment must be met with official condemnation, and the uniform message that such conduct is criminal and will be punished. The petitions filed with the Commission on this issue allege that, despite the initiation of criminal processes against State agents accused of torture or abuse, there are few attempts at proper investigation, and agents are not brought to trial. In fact, it is alleged that agents under criminal accusations continue to occupy positions where they regularly interact with detainees.(18)
RECOMMENDATIONS
The IACHR exhorts the State of Ecuador to take the additional necessary measures to realize its commitment to ending torture and other abuse of detainees. Adherence to this commitment is required under the American Convention on Human Rights. Ensuring the right of individuals to be free from torture and inhumane treatment requires measures of prevention and safeguard, and measures of reparation and remediation in any instance where this right is violated.
Concrete steps to be taken by the State should include:
Implementing measures to ensure that all persons in detention are immediately informed of their rights, including their right to bring complaints in the case of mistreatment;
Taking all necessary steps to ensure that persons detained are held in officially recognized detention facilities, and that all detentions are immediately recorded in a central registry accessible to the public;
Adopting measures to confront the practice of prolonged incommunicado detention; within the framework of the present report, the Commission expresses no opinion as to the compatibility of incomunicado detention for the period provided for in Article 130 of the Code of Criminal Procedure, but wishes to indicate that it has received denunciations of prolonged incommunicado detention which would clearly contravene both domestic law and the American Convention;
A selection process to screen prospective members of law enforcement and public security forces, as well guards and other prison personnel, to ensure that individuals selected for these positions demonstrate the capacity to adhere to the norms regulating the treatment of all persons in detention;
Enhanced training for the public officials in charge of law enforcement with respect to human rights norms; training activities should be strengthened to develop an institutionalization of respect for human rights within the public forces;
Ensuring the thorough and expeditious investigation of all denunciations of torture or inhuman treatment, and the prompt submission of those implicated to the appropriate judicial mechanisms for prosecution and punishment;
Adopting, pursuant to Article 2 of the American Convention, the internal measures necessary to ensure that -- as is already stipulated by law -- confessions or declarations obtained under duress are not permitted to be entered into evidence in the criminal process;
Adopting the internal measures necessary to limit the jurisdiction of special police and military tribunals to only those crimes of a specific police or military nature; cases concerning torture and other mistreatment of detainees are to be submitted to the ordinary civilian courts;
Adopting the internal measures necessary to expressly set forth the right of individuals subjected to torture to bring civil actions for the purpose of seeking compensation for the damages suffered;
Finally, the Commission recommends that the State of Ecuador take the steps necessary to ratify the Inter-American Convention to Prevent and Punish Torture, which further recognizes and defines the obligation of states parties to take effective measures to prevent and punish torture, and other cruel, inhuman, or degrading treatment or punishment within their jurisdiction."
Notes______________________
1. See, Report of the Multiparty Commission of the Honorable National Congress Charged to Study Requests for Amnesty and the Disappearance of Consuelo Benavides Cevallos," January 20, 1989.
2. Articles 204, 205, Criminal Code.
3. The full text of Article 5 provides:
1. Every person has the right to have his physical, mental, and moral integrity respected.
2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.
3. Punishment shall not be extended to any person other than the criminal.
4. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.
5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.
6. Punishment consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
4. See, United Nations Human Rights Committee, General Comment 7(16), Doc. A/37/40, par. 2.
5. The State has signed (but has yet to ratify) the Inter-American Convention to Prevent and Punish Torture on May 30, 1986. Ecuador is party to the United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The text of the UN Convention defines torture as:
... any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does notinclude pain or suffering arising only from, inherent in or incidental to lawful sanctions.
6. See, Amnistía Internacional, Informe 95, 122-24 (1995)(reporting in particular on investigation of alleged cases of torture and mistreatment by security forces of those detained in the "Putumayo Case" (December 1993); cases of Oscar Soto and John Kennedy García Petevi (April 1994). World Organization Against Torture, [Bulletin] "Case ECU 270194," 27 Jan. 1994 (Geneva)(describing allegations concerning "Putumayo Case").
7. Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1995/37, E/CN.4/1996/35, 9 January 1996, at para. 59.
8. Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1992/32, E/CN.4/1995/34, 12 January 1995, at paras. 167-177.
9. CEDHU, "Derechos del Pueblo," No. 91, enero de 1996, at 10-11.
10. Id. In 1991 CEDHU published a volume containing the first hand testimony of torture victims entitled A Mi También Me Torturaron, which appended statistics on torture and mistreatment cases reported to CEDHU over the previous decade.
11. ALDHU, Informe Final: "Diagnóstico del Sistema Penitenciario del Ecuador y Lineamientos para su reforma," 1992-93, at p. 88-89.
12. Principios Generales, No. 5, Dirección Nacional de Rehabilitación Social, "Instructivo de Evaluacion de la Disciplina y Conducta de los Internos de los Centros de Rehabilitacion Social del Pais (1989).
13. ALDHU, supra n. 11, p. 59.
14. Id., p. 89, reporting that the results of their investigation indicated that more than 50% of the prison population reported having been physically punished while incarcerated, more that 30% reported some form of psychological punishment.
16. Velásquez Rodríguez Case, Judgment of July 29, 1988, para. 156.
17. Amnesty International, Torture in the Eighties 110 (1984). See generally, Amnistía Internacional, Tortura: Informe de Amnistía Internacional (1984).
18. The Commission has received information to this effect in two of the cases currently being processed. See also, CEDHU, Derechos del Pueblo, No. 82, p. 7, julio de 1994.