CHAPTER VII
THE RIGHT TO PERSONAL LIBERTY
The right to liberty is set forth in Article 22(19) of the Political Constitution of Ecuador, which specifies in subsection (h) that no one may be deprived of his liberty except by virtue of the written order of a competent authority, in the cases, for the time, and with the formalities prescribed by law, except in the case of a flagrant delict, in which case a person may not be held without a judicial order for more than 24 hours. The text specifies that in no case may a person be detained incommunicado for more than twenty-four hours. Provisions (d) and (e) set forth that persons accused have the right to be judged by a competent court, and to legal defense during all phases of the process.
The Code of Criminal Procedure of Ecuador specifies the measures necessary for effecting an arrest. Article 172 of the Code provides for the arrest of an individual for the purpose of investigation pursuant to the issuance of a signed judicial order setting forth the reason for the detention, and the place and date of the order. Agents of the National Police or Judicial Police are authorized to effect arrests.(1) The only exception to the warrant requirement is set forth in Article 174, which provides for the arrest of an individual apprehended in the commission of a flagrant delict.(2) A person detained by judicial order must be officially charged or released within 48 hours;(3) a person arrested in flagrante delicto must be brought immediately before a judge.(4)
Article 7 of the American Convention sets forth the guarantees concerning the right to liberty that States Parties have pledged to respect and ensure. Principally, any deprivation of liberty must be carried out according to preestablished law; accordingly, "no one shall be subject to arbitrary arrest or imprisonment." A person detained must be informed of the reason and promptly notified of any charge against him or her. A detainee must be presented promptly before a judge, and must be tried within a reasonable time or released pending the continuation of proceedings. Further, any person deprived of liberty is entitled to judicial recourse, to obtain, without delay, a determination of the legality of the detention. (5)
The Commission has received many reports of warrantless arrests in cases that did not appear to fall within the in flagrante delicto exception. The failure of those tasked with effecting arrests to seek and obtain warrants is identified, even by national authorities, as a systemic deficiency. In a newspaper interview, the National Director of Social Rehabilitation stated that the judges at the level of first instance "don't even issue detention orders. There is committed a series of arbitrary acts."(6) This is problematic for prison authorities, who are not authorized to receive detainees without a written order.(7) The Commission is studying 5 cases in which the petitioners charge, among other allegations, that warrantless arrests were carried out in circumstances which clearly did not meet the in flagrante delicto exception.
The most severe problem the Commission has identified with respect to the right to liberty is the arbitrary and illegal application of preventive detention. At the time of the Commission's observation in loco, the figures available indicated that approximately 9,280 individuals were incarcerated within the Ecuadorean prison system, of whom approximately 70% were awaiting trial or sentencing. The Commission delegation spoke to individuals who had been held for two, three, four, five, and even six years in prison without having received a judicial determination of the accusation against them.
Article 177 of the Code of Criminal Procedure establishes that a judge may order preventive detention when deemed necessary, and when there are indicia that an offense warranting deprivation of liberty has been committed, and that the individual concerned committed or aided in the offense. Such imprisonment would likely continue through the production of evidence by the prosecution and defense during the pre-trial phase of proceedings, which results in an order to stay or dismiss the proceedings, or to initiate trial.
Under Article 7.5 of the American Convention, a person detained according to the law "is entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings." Thus, preventive detention may be consistent with the Convention only for so long as its duration does not become "unreasonable." Where pre-trial incarceration becomes unreasonably prolonged, "the risk of inverting the presumption of innocence increases."(8) As the Commission has stated, "[t]he rationale behind this guarantee is that no person should be punished without a prior trial which includes a charge, the opportunity to defend oneself, and a sentence."(9)
In principle, the Ecuadorean system is set up to ensure the processing of criminal cases in a relatively timely manner. The criminal process is divided into stages: the summary or initial investigation stage "sumario," which serves to prove the existence of an offense and to individualize and identify the authors, accomplices and accessories; the intermediate stage, in which the public prosecutor formalizes the accusation; the trial or "plenario;" and appeals. Article 231 of the Code provides that the initial stage must, in any case, be completed within 60 days.(10) Articles 235 through 240 specify the duration of the intermediate stage, which in exceptional cases can be extended for up to 51 days, where the initial stage is reopened at the judge's initiative or a parties' request in order to carry out an action that was omitted. At that time the charges are either dismissed, or the trial stage is initiated. The Code of Criminal Procedure thus requires that the pre-trial phase of the criminal process be completed within 111 days.
In practice, however, the failure to maintain reasonable limits on preventive detention has been acknowledged as a critical problem in Ecuador. The Commission views as positive the action of the Legislature in 1992 to amend the Criminal Code to facilitate the release of persons held in prolonged preventive detention without having been tried or sentenced. The preamble to the Act Amending the Penal Code stated its purpose: to ameliorate the effects of a criminal justice system in which 70% of those incarcerated were awaiting trial or judgment. The Legislature referred to this situation as constituting "a grave violation of the fundamental rights of individuals."(11) Under the Act, a person detained for more than one-third of the maximum sentence for the crime charged is to be released immediately. A person not sentenced within a period equal to or greater than half of the maximum penalty prescribed is also to be released. However, persons charged under the Narcotic Drugs and Psychotropic Substances Act are expressly excluded from the coverage of these provisions.(12)
The Commission also views as positive the effort at penal reform initiated by the Supreme Court, which in September 1993 implemented the First National Penitentiary Census. The results of the census and of other efforts reportedly accelerated the resolution of many pending criminal cases, and in some cases led to the release of detainees. Some detainees were reportedly released from the provisional detention centers in Quito and Guayaquil because of renewed efforts to enforce the provision that detainees may only be accepted by a facility pursuant to a written judicial order. Sentences were reduced due to good behavior, reportedly resulting in the release of hundreds of inmates.(13)
In its observations on the present report, the Government informed the Commission that the Supreme Court and the Latin American Corporation for Development, a nongovernmental organization, had concluded an agreement whereby the latter had designed and installed a data base to track the cases of all persons preventively detained or serving prison sentences. The Government estimated that this program had facilitated the release of as many as 800 inmates.
Despite the enactment of these measures, the percentage of the prison population which has not been sentenced continues to remain at approximately 70%.(14) Government efforts to ameliorate this, which were clearly serious and intended to have substantive effect, were simply not of sufficient duration and breadth to redress the numerous deficiencies identified. According to reports, as of June 1994 approximately 9200 individuals were incarcerated in Ecuadorean jails.(15) El Telégrafo reported in November of 1994 that only 29% of those incarcerated in the national system had been sentenced. CEDHU reported in January of 1994 that at least 62% of those incarcerated are awaiting sentencing. These figures are consistent with those reported by ALDHU in a 1992-93 study that 74% of the prison population in Quito and 67% nationally had not been sentenced. This use of preventive detention, coupled with the delay that plagues the criminal justice system exacerbate the chronic overcrowding in prison facilities. Under the American Convention, once preventive detention ceases to be justified, as when a detainee has not been tried within a reasonable time, the right to liberty is violated.
The Commission is acutely aware of the serious problems being created by drug trafficking, and considers that while measures of a special character may be taken, these must be adjusted to fit within the framework established by the rule of law. The exclusion of those charged under the Narcotic Drugs and Psychotropic Substances Act from the coverage of the 1992 amendments to the Criminal Code means that the right of these individuals to a trial within a reasonable time or to release pending proceedings is not protected. The exclusion flows solely from a defendant's charging classification. The Commission observes that charging classifications, standing alone, may not be used to infer a presumption of guilt in contravention to Convention Article 8.2, and provide no basis for the exclusion of a defendant class from the coverage of a substantive legal protection. The exclusion is not based on the factors that justify the need to preventively detain an individual as a legal matter, such as the gravity of the factual or legal circumstances, or the need to ensure an appearance at trial or the presumed need to protect society. Therefore, the exclusion provided in the 1992 amendments does not validate the continued preventive detention of inmates charged under the anti-drug law for long periods.
The Commission is processing a number of denunciations alleging violation of the right to liberty by means of arbitrary and illegal detention. In Chapter III, reference was made to a series of six cases currently under study by the Commission in which the petitioners charge that individuals were subjected to unduly prolonged pre-trial detention. Of these cases, two deal with individuals who were held in preventive detention for five years before the charges against them were eventually dismissed. In two other cases, the individuals concerned were preventively detained for periods of 24 and 30 months, but were given final sentences of two years each. In December of 1995, the Commission submitted the case of Rafael Iván Suárez Rosero (11.273) to the Inter-American Court of Human Rights. Mr. Suárez was arrested in June of 1992, and was held in preventive detention until April of 1996. As of August, 1996, he had yet to be tried.
The Use of Incommunicado Detention
As noted in Chapter V, Ecuadorean law contains a number of provisions designed to ensure that the use of incommunicado detention is strictly controlled. First, it is provided in the Constitution that no one may be held in incommunicado detention for more than 24 hours. Additionally, any person in detention must be the subject of some form of judicial supervision, in the form of an arrest warrant or alternatively in the form of a written judicial order within 24 hours of arrest and detention. Furthermore, the detainee must be charged within 48 hours.
Article 7(2) of the American Convention provides that any deprivation of liberty must be carried out according to the extant legal standards of the country. Article 7(5) specifies that "Any person detained shall be brought promptly before a judge or other official authorized by law to exercise judicial power...." This should be done as soon as it is practicable to do so; delay is unacceptable. Article 7.6 of the American Convention expressly directs that:
Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful....
A detainee held in incommunicado detention is cut off from contact with the outside world, and unable to avail himself or herself of the right to a review of the legality of detention in a timely manner. The importance of the right to present a writ of habeas corpus cannot be overemphasized. Broadly, writs of habeas corpus are "among those judicial remedies that are essential for the protection of various rights whose derogation is prohibited by Article 27.2 and that serve, moreover, to preserve legality in a democratic society."(16) More specifically, with respect to the individual:
habeas corpus performs a vital role in ensuring that a person's life and physical integrity are respected, in preventing his disappearance or the keeping of his whereabouts secret and in protecting him against torture or other cruel, inhumane, or degrading punishment or treatment.(17)
The question of incommunicado detention also raises the issue of the right to legal defense generally. The right to a fair trial is set forth in general terms in Article 8.1 of the American Convention, which sets forth that any person accused of a criminal offense "has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law...." Article 8.2 specifies certain minimum guarantees which include the right to defend oneself, either personally or with legal counsel of one's own choosing. If neither of these options is pursued, the accused has "the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides...." An accused who is prevented from seeking or communicating with counsel is unable to avail himself or herself of these guaranteed protections.
CONCLUSIONS
Preventive detention is only permissible when justified by a pressing need for detention, for example, to ensure that the accused will not abscond or otherwise interfere with the judicial investigation. When a person is detained on the basis of such a pressing need, it is incumbent upon the national judicial authorities to use special diligence in the conduct of proceedings to ensure that the length of detention does not become unreasonable.(18)
Due to excessive delays in bringing people to trial, and the lack of a proper system for provisional release on bail, the majority of the prison population have languished in jail for prolonged periods without any judicial determination of their guilt or innocence. This delay and deprivation of liberty constitutes a terrible injustice for individuals who may be incarcerated for periods of years only to at last be found innocent, and for those who are preventively detained for longer than the period prescribed by law had they been sentenced. These delays are a clear breach of the American Convention because they violate the principle that an individual must be presumed innocent until proven guilty. Moreover, such delays deny affected individuals their freedom without due process of law.
In any number of cases individuals have been acquitted at first instance, or charges have been dismissed, but because of delays in the mandatory consultation before the Superior Court, these individuals continue to suffer the deprivation of their liberty for indeterminate periods. This latter problem, in particular, could be promptly addressed through changes to the bail system which would make it more equitable and proportionate.(19)
RECOMMENDATIONS
The State should take steps to ensure that, in accordance with the law, arrests are only authorized in situations of flagrante delicto or pursuant to judicial order.
The State must immediately implement the measures necessary, pursuant to Article 2 of the American Convention, to ensure that every individual detained under the authority of the state is the subject of prompt judicial supervision. Prompt in this case means as soon as practicable, and in any case, prior to 24 hours from the detention.
The State must take the measures necessary to ensure that preventive detention is applied as an exceptional measure, justified only when the applicable legal standards are met in the individual instance; where these criteria are not met, measures must be taken to ensure the immediate release of the detainee.
The State must take the steps necessary to ensure the right of those justifiably subject to preventive detention to a trial producing a final sentence without undue delay, or to be released without prejudice to the continuation of the proceedings.
The State must adopt the measures necessary to ensure that individuals charged under the Ley sobre Sustancias Estupefacientes y Psicotropicas are either tried and sentenced within a reasonable time or otherwise released pending the continuation of proceedings.
Notes___________________
1. Pursuant to Executive Decree 2128 of September of 1994, members of the Armed Forces were authorized to detain individuals when the police were not able to do so. Emergency legislation promulgated by President Bucaram in August of 1996 likewise allows the military to take on certain police functions.
2. Article 175 defines this as "an offense that is committed in the presence of one or more persons, or when it is discovered immediately after its commission, if the author is apprehended with arms, instruments or documents relative to the recently committed offense."
3. Article 173, Code of Criminal Procedure. It may be noted that under Ecuadorean law, the right to personal liberty is also protected through the criminalization of violations of that right, see Articles 180-85 of the Penal Code.
4. Article 174, Code of Criminal Procedure.
5. The full text of Article 7 provides:
1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.
4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.
6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or other person in his behalf is entitled to seek these remedies.
7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.
6. W. Chamorro R., "Las cifras que la Comisión de Derechos Humanos debe conocer," El Telégrafo, B-i, 15 nov. 1994.
7. Article 37 of the Code of Penal Enforcement and Social Rehabilitation requires that a written order of a competent authority be presented in order to intern a person; the issuing authority will be directly responsible for the legality of the order.
8. Report No. 12/96, Case 11.245 (Argentina), in Annual Report of the IACHR 1995, OEA/Ser.L/V/II.91, Doc. 7 rev. Feb. 28, 1996, para. 80.
10. Article 231 provides that initial stage must be completed within 60 days, under the threat of a monetary sanction to be imposed upon a negligent judge. Article 216 provides that the judge may not extend this stage unnecessarily; and Article 217 provides that secondary subjects of the process, or judges of lower courts, may be sanctioned if responsible for delay in this stage.
11. Adopted August 26, 1992, now codified immediately following Article 114 of the Criminal Code.
12. The Narcotic Drugs and Psychotropic Substances Act does not contain a similar provision for release due to pre-trial or pre-sentencing delay. It includes a prescription provision in Article 91, which specifies that both the criminal action and the penalty prescribe in double the time of the maximum penalty for each infraction, with the time period running from the date of commission of the offense in the case of persons not indicted, and from the date of the initiation of the process in the case of persons who have been indicted.
13. See, Informe del Dr. C. Morán, Ministro Juez-Presidente de la Comisión de Control de Procesos Penales de la Corte Suprema al señor Presidente de la Corte Suprema de Justicia, Francisco Acosta Yepez, 21 de Octubre de 1993, reproduced in Breve Estudio, at p. 7-8. The special commission responsible for these efforts also called for training for judges throughout the country "to introduce the controls and corrections necessary, in order to obtain a more efficient administration of justice, and particularly in the criminal cases in which there are prisoners." Id.
14. See, El Telégrafo, supra note 6. One study of the prisons indicated that these reforms had not achieved the desired effect, and had benefited few inmates. G. Narváez S. et al., Breve Estudio Penitenciario Ecuatoriano - Quinquenio 1989 - 1993, p. 6. Measures taken under Executive Decree No. 716 with respect to reductions in sentence due to good behavior have had more impact and benefitted many more inmates. Id. at 7.
15. A comprehensive list of figures from the Planning Department of the National Social Rehabilitation Office was printed in the November 15, 1994 edition of "El Telégrafo," at B-1.
16. 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, para. 42.
18. Report No. 12/96, supra, n. 8, paras. 47, 99.
19. See, United Nations Standard Minimum Rules for Non-Custodial Measures (Tokyo Rules), which set forth alternatives to pre-trail detention on the basis of the principle that detention shall be used only where measures such as bail cannot.