Ecuador: letter to the President of the National Assembly

Washington, D.C, October 11, 2013

Gabriela Rivadeneira

President of the National Assembly

Quito - ECUADOR

Dear Mrs. Rivadeneira,

I am writing to respectfully urge you to modify three key aspects of the proposed Organic Integral Penal Code currently under debate at the National Assembly.[1]The current draft includes offences on defamation, terrorism, and abortion that would severely undermine basic rights of the people of Ecuador. As described below, the proposed norms undermine the rights to free expression and to be free from arbitrary deprivation of liberty, as well as women’s rights to equality, life, health, physical integrity, the right to decide on the number and spacing of children, and to be free from cruel, inhuman, and degrading treatment.

These norms run counter international treaties ratified by Ecuador, including the American Convention on Human Rights and the International Covenant on Civil and Political Rights.[2]In addition, they contradict the Ecuadorian Constitution, which states that human rights treaties will be directly applied in the country respecting the principle of “non-restriction of rights” as well as the “pro-homine principle,” defined as the need to interpret legal obligations in the most advantageous manner for the human being.[3]

To ensure that all legislators can take our considerations into account for a thorough debate of these aspects of the draft code, I would also kindly request that you share this letter with the rest of the members of the National Assembly.

Defamation

The current draft of the Organic Integral Penal Code would eliminate several defamation provisions from the code’s current version. However, under article 184 of the proposed code, “the person who, by any means, falsely accuses another of committing a crime, will be sanctioned with prison sentences of six months to two years.” This language is very similar to the one in article 494 of the existing code, which defines slander (injuria calumniosa) and states that thosewho “make a judicial accusation, or present a complaint, that is not proven during a trial” are subject to prison sentences of up to three years.

In relation to the proposed code, the president of the Justice Commission at the National Assembly said that “the individual who falsely accuses someone of committing a crime can be sanctioned in general terms... One person can undermine the right of another one through a radio, through TV, in public, in social gatherings, [or] through social networks.”[4]

If the current version of this article is adopted, public officials could continue to use criminal defamation law against critics, as they have done in the past. For example, in August 2012, President Rafael Correa filed a complaint before the National Court of Justice, accusing Cléver Jiménez, an indigenous legislator from an opposition party, and two others of slander. The three men had asked the attorney general to investigate Correa’s responsibility for the violent incidents of September 30, 2010, but the attorney general and a judge declared their request “reckless and malicious.” On September 27, 2013, the National Court of Justice notified Jiménez that it had upheld his slander conviction and sentence of 18 months in prison. The court also ordered the men to issue a public apology to the president and pay him approximately US$140,000.

Both the American Convention on Human Rights and the International Covenant on Civil and Political Rights protect the right to free expression.[5]In the interest of promoting the vibrant public debate necessary in a democratic society, international human rights bodies have long criticized the use of criminal defamation charges particularly in response to allegations involving public officials.

The Principles on Freedom of Expression adopted by the Inter-American Commission on Human Rights in 2000 assert that protection of the reputation of public officials should be guaranteed only by civil sanctions.[6]The Inter-American Court of Human Rights has held that public officials “who have voluntarily exposed themselves to greater public scrutiny are subject to greater risks of being criticized, since their activities are ... part of the public debate.”[7]  The honor of public officials or public people must be legally protected, the court says, but that must be accomplished “in accordance with principles of democratic pluralism.”[8]

The UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media and the OAS Special Rapporteur on Freedom of Expression have called jointly for the abolition of all criminal defamation laws on the ground that “criminal defamation is not a justifiable restriction on freedom of expression.”[9]

Terrorism

The draft Organic Integral Penal Code modifies the existing definition of “terrorism” but it maintains excessively broad language that could allow prosecutors to criminalize participants in public protests.

Currently, Ecuador’s criminal code includes, under the category of sabotage and terrorism, “crimes against the common security of people or human groups of whatever kind or against their property,” by individuals or associations “whether armed or not” with several purposes, including “social, economic, political, religious, revolutionary,” among others. Such crimes carry a possible prison sentence of four to eight years.

While the draft code limits the explicit circumstances included in the text for the commission of terrorism, it contains an overly broad definition that could still be applied to non-violent political protest. It defines terrorism as acts carried out by a “person who individually or forming armed or unarmed associations, with any purpose, including political ones, provokes or maintains the population or a part of it in state of terror, through acts that put in danger the life, physical integrity or liberty of people, or endanger buildings, media outlets, transportation, using medium capable of causing damage” (emphasis added). In addition, the draft code increases the existing penalties for terrorism offences to 10 to 13 years in prison.

Prosecutors have inappropriately used similarly sweeping provisions included in the current code against participants in public protests and other gatherings. For example, in May 2013, a court sentenced 10 individuals, known as the Luluncoto 10, to a year in prison for attempted sabotage and terrorism.[10]They were arrested in March 2012 while holding a peaceful meeting to plan their participation in a public protest, and most were held in pre-trial detention for nine months. According to their lawyers, the only evidence against them consisted of personal objects like innocuous books, t-shirts, and music found in their homes.[11]

Under international law, an individual can only be deprived of liberty in circumstances clearly and expressly provided by law.[12]According to the Inter-American Court, “definitions of crimes must clearly describe the criminalized conduct, establishing its elements, and the factors that distinguish it from other forms of conduct that are either not punishable or punishable with non-criminal measures.”[13]The court has also warned that “[a]mbiguity in describing crimes creates doubts and the opportunity for abuse of power, particularly when it comes to ascertaining the criminal responsibility of individuals and punishing their criminal behavior with penalties that exact their toll on the things that are most precious, such as life and liberty.”[14]

The bodies of the Inter-American human rights system have specifically warned that laws that have attempted to prescribe “a comprehensive definition of terrorism that is inexorably overbroad and imprecise” violate the principle of legality.[15]Similarly, the United Nations General Assembly has urged states to “ensure that their laws criminalizing acts of terrorism are accessible, formulated with precision, non-discriminatory, non-retroactive and in accordance with international law, including human rights law.”[16]

Non-punishable Abortion

Human Rights Watch is also concerned that the draft Organic Integral Penal Code maintains criminal restrictions on abortion, even in the case of rape. Article 152 states that, “[a]bortion practiced by a doctor or other health professional, with the consent of the woman or of her spouse, partner, intimate family members or legal representative when she is not able to give consent, will not be punishable in the following cases: (1) If the abortion is practiced to avoid danger to the life or health of the pregnant woman and if the danger cannot be avoided by other means. (2) If the pregnancy is the consequence of a rape of a woman suffering a mental disability.”

This article is only a slight change from the language on non-punishable abortion in the current criminal code. While the current version of the code allows abortion when the pregnancy is the consequence of the rape of an “idiot or demented” woman, the only change made in the draft under discussion is to replace the discriminatory and offensive “idiot and demented” terminology with more modern “mental disability” wording.

Human Rights Watch has documented that Ecuador’s current criminal restrictions on abortions have real and damaging consequences for woman and girls.[17]Notably, abortion—often performed in clandestine, unsafe conditions due to its illegality—is the leading cause of female morbidity (disease, disability, or physical harm), and a significant cause of maternal mortality, in Ecuador.[18]These provisions in the criminal code also treat women and girls with disabilities differently from other women and girls, fostering inequality. The provision on mental disability continues to imply that women and girls with disability would be “unfit” mothers, and thus eligible for legal abortion after rape even when other rape victims are not. Ecuador’s restrictions on legal and safe abortion, even in the case of rape, also impose unnecessary costs on the state and private health sector, and impair the state’s response to sexual and other gender-based violence.

The law results in doctors refusing treatment to pregnant rape victims who seek safe abortions. Human Rights Watch spoke to dozens of medical professionals in Ecuador in June and July 2013, some of whom said they had denied comprehensive post-abortion care to rape victims as young as 12 years of age because the law prohibited them from providing these women and girls with abortion services.

International law recognizes that obtaining a safe and legal abortion is crucial to women’s effective enjoyment and exercise of their human rights, in particular rights to equality, life, health, physical integrity, the right to decide on the number and spacing of children, and to be free from cruel, inhuman, and degrading treatment. International treaty bodies have frequently expressed concern about the relationship between restrictive abortion laws, clandestine abortions, and threats to women’s lives, health, and well-being. They have repeatedly recommended the review or amendment of punitive and restrictive abortion laws and have urged states parties on multiple occasions to legalize abortion, in particular when a pregnancy is life or health-threatening or the result of rape.[19]

In November 2012, the United Nations Committee on Economic, Social and Cultural Rights (CESCR) specifically recommended that the government of Ecuador “amend its Criminal Code so as to establish that abortion is not an offence if the pregnancy is the result of rape, regardless of whether or not the woman in question has a disability, or if the existence of congenital anomalies has been established.”[20]

Based on the above considerations, it is critical for the National Assembly to modify the articles on defamation, terrorism and abortion mentioned in this letter to comply with Ecuador’s international human rights obligations. We sincerely hope you will address these concerns during the current discussion of the draft Organic Integral Penal Code.

Sincerely,

José Miguel Vivanco