(New York) – People facing jail terms in Ecuador for participating in anti-government protests can appeal under a new law, but the courts have repeatedly stalled on hearing their cases. The convictions are based on overly broad definitions of crimes that are no longer applicable to these cases, but courts have delayed scheduling appeals in cases in which top officials had expressed approval for the original sentences.
In recent years, prosecutors and judges in Ecuador have used charges of “terrorism” and “sabotage” in the criminal code against anti-government protesters. Human Rights Watch has documented several of these cases. However, the new criminal code that entered into force in August 2014 narrowed the vague and overly broad definitions of both offenses. Rather than acting promptly to review the unjust convictions based on the new provisions, judges have failed to even set hearing dates for appeals in cases in which President Rafael Correa and other government officials had signaled their satisfaction with the convictions.
“There is no question that if someone commits a crime during a protest, he or she should be investigated,” said José Miguel Vivanco, Americas director at Human Rights Watch. “But it’s deplorable not to grant hearings to set aside terrorism or sabotage convictions for peaceful protesters and government critics even when Ecuadorian law has changed to avoid this kind of abuse of the justice system.”
The new code states that judges should “apply the most favorable law,” even if there is no explicit request by an interested party and even if a different law was in force when the convictions were handed down.
Although there is no single definition of terrorism in international law, standards provide that the term should only be used for the gravest crimes of political violence. 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.”
The broad definitions of “terrorism” and “sabotage” included in Ecuador’s criminal code until August 2014 did not meet the internationally recognized principle of legality, which requires that crimes must be precisely defined in law, Human Rights Watch said.
Terrorism included “crimes against the common security of people or human groups of whatever kind or against their property,” committed by individuals or associations “whether armed or not” with “social, economic, political, religious, [or] revolutionary” purposes, among others. The definition also included “etc.” five times, leaving an open-ended array of unspecified actions that could constitute terrorism.
The sabotage provision criminalized:
[W]hoever destroys, damages, renders useless, or paralyzes public services, industrial or manufacturing installations, shopping centers, ports, channels… vehicles or any other kind of means of transportation, public or private installations of electric energy, potable water, gas or other similar, or radio, telephone, telegraph, television or any other system of transmission; warehouse containing goods, explosives, lubricant, fuel… or any other similar type of warehouse, with the purpose of causing collective alarm.
In one case that Human Rights Watch documented, 10 people were sentenced to a year in prison for attempted terrorism for participating in a peaceful meeting to plan a protest. In another, a university student was sentenced to four years for sabotage for entering the building hosting the public TV channel to demand an opportunity to speak to the public at a time when all other stations were forced to transmit the public TV channel’s programming. And a teacher was sentenced to eight years for sabotage for allegedly inciting students to participate in an anti-government protest while a police mutiny was taking place.
Government officials, including Correa, made public statements supporting these prosecutions, which occurred under the old law. A July 2014 report by three foreign nongovernmental organizations – the Due Process of Law Foundation, Dejusticia, and the Institute for Legal Defense – documented routine executive interference with judicial decisions, misuse of the penal system to target people who question the government’s policies, and misuse of the judiciary’s internal disciplinary system to sanction judges whose rulings were inconsistent with the Correa administration’s policies.
The new Organic Integral Penal Code that entered into force in August 2014 provided much more detailed definitions of “terrorism” and “sabotage.”
In the new code, “terrorism” is defined as an act by a “person who individually or forming armed associations provokes or maintains the population or a part of it in a 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.” The new code increased the penalties for terrorism from a range of 4-to-8 years to 10-to-13 years, and from 16-to-25 years to 22-to-26 years when the terrorist acts cause someone’s death.
Sabotage is defined in the new code as actions such as “destroy[ing] industrial or manufacturing installations, shopping centers, ports, channels… vehicles or any other kind of means of transportation [or] goods that are essential for public or private services,” committed “with the purpose of disrupting the economic situation or public order.” Penalties were decreased from 8-to-12 years to 5-to-7 years. While the previous code provided for an aggravated penalty of 16-to-25 years if someone was killed, the current code only includes an aggravated penalty of 7-to-10 years if infrastructure of strategic sectors is destroyed.
During its research, Human Rights Watch found a consensus among Ecuadorian jurists – including Mauro Andino, president of the National Assembly’s Justice Commission, who was involved in drafting the new code – that the new provisions should be applied retroactively to those already convicted of acts that no longer constitute terrorism or sabotage under the new definitions. Andino did not comment on specific cases.
Ecuadorian jurists interviewed by Human Rights Watch said the requirement in the new code to “apply the most favorable law” imposes an obligation on prosecutors to drop charges in ongoing prosecutions when the offending behavior falls outside the new definitions, as they no longer have a basis in law, and on judges to reverse convictions in cases where the offending behavior is no longer criminalized, when they come for appeal.
If a case is still on appeal, judges should apply the most favorable norm when reviewing the appeal, whether or not interested parties ask them to do so. If a conviction is finalized, Ecuadorian law applicable to cases that started before August 2014 provides for a specific recourse, called “revision,” under which interested parties can apply to the National Court of Justice to vacate a conviction if a more benign law is subsequently adopted.
The American Convention on Human Rights states that “[i]f subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.” The Inter-American Court on Human Rights has noted that this provision should be interpreted as encompassing norms “that decriminalize a behavior that was previously considered an offense” and it should be applicable “before the judgment was delivered and during its execution.”
As of February 2015, 1,757 people had been released as a consequence of these provisions, Correa has said, although he has not provided detailed information about whether charges had been dropped or convictions had been overturned. However, in the cases documented by Human Rights Watch, although the defendants appealed their cases, the courts have not set hearing dates for many months, well in excess of the time frames set out in law, thereby denying the defendants the opportunity to have their convictions reconsidered and set aside under the new law.
Human Rights Watch believes, based on interviews with victims, their lawyers, and jurists, that the delays in hearing the cases are largely the result of political pressure. That is especially likely to be true in cases in which the president and other government officials endorsed the convictions when they were originally handed down. Human Rights Watch conducted research missions to Ecuador in October 2014 and March 2015, and has also reviewed official documentation in all cases – including official summaries of judicial hearings, testimonies, and judicial rulings.
“These groundless terrorism and sabotage convictions exemplify the government’s use of repressive legislation against its critics,” Vivanco said. “These charges should never have been brought, and there is no legal justification for failing to grant the defendants hearing dates so these unjust convictions can be overturned.”
Cases Documented by Human Rights Watch
The ‘Luluncoto 10’
In February 2013, a court sentenced 10 people known as the “Luluncoto 10” to a year each in prison for attempted terrorism. In a government-sponsored video shown during one of Correa’s Saturday TV shows in October of that year, the administration referred to the case, saying that “the justice [system] had done its job justly and in conformity with legal norms.”
The accused were arrested in March 2012 while holding a planning meeting for a peaceful public protest. With the exception of one who was pregnant and placed under house arrest for three months, they were held in pretrial detention for several months. The only evidence against them consisted of personal belongings like innocuous books, t-shirts, and music found in their homes, a defense attorney told Human Rights Watch.
Seven of the ten were released in December 2012, when their lawyers brought a successful habeas corpus motion, but they can still be returned to prison to serve the remaining few months of their sentence if their appeal is not successful. Two others were released in March 2013 after completing their sentences.
In December 2013, an appeals court upheld the convictions. In January 2014, the accused filed another appeal. But 18 months later, and despite the new law coming into force, the National Court of Justice has yet to set a date for a hearing. By law such appeals (called recurso de casación) should be heard in less than a month.
Ecuador TV Case
In March 2014, María Alejandra Cevallos, a university student, was sentenced to four years in prison for sabotage. The sabotage case was brought by José Serrano, justice minister at the time, and the public television channel, Ecuador TV.
Cevallos was accused of forcibly entering the offices of Ecuador TV during a police mutiny on September 30, 2010, which the Ecuadorian government labeled an attempted coup. Cevallos told Human Rights Watch that she and other protesters went to the station to demand an opportunity to speak to the public, given that the government had ordered all the other stations to transmit only government programming.
Cevallos said the building doors were open when she got to the TV channel and she was invited by the host of the show that was airing at the time to participate. On TV, Cevallos asked Correa to “take citizens into account” and said that the police revolt was an example of citizens’ disagreement with the government.
Six others were convicted of sabotage in the same case, including another student who was sentenced to two years as an accomplice because “with his applause he externalized his general agreement with the [group’s] actions.”
In June 2014, Cevallos appealed her conviction, but, despite the change of the law in her favor since then, she waited for over a year for the National Court of Justice to set a date for the appeal hearing. Under Ecuadorian law, her appeal should also have been heard in less than a month.
In July 2015, Correa pardoned Cevallos and another protester convicted in the case, in exchange for them publicly accepting responsibility for the crimes, which they told Human Rights Watch they had not committed.
In June 2013, Mery Zamora, a teacher, was sentenced to eight years in prison for sabotage.
The court held that Zamora had incited students from a public school to participate in a protest on September 30, 2010, interrupting classes and thus, according to the court, interfering with delivery of a public service. In June 2014, the Supreme Court held that Zamora’s acts did not constitute sabotage, and overturned the conviction.
Soon after, Correa said that the court’s decision to overturn the conviction was “very serious” and that, if judges had ruled that no crime had been committed, “competent authorities” would have to sanction them.
In a move that appeared to be a response to Correa’s intervention, the attorney general days later filed an “extraordinary appeal” (acción extraordinaria de protección) before the Constitutional Court, even though the Supreme Court’s acquittal had been final under Ecuadorian law.
The “extraordinary appeal” process was created to protect victims of abuses by authorities, not to give the government an additional opportunity to challenge decisions in favor of defendants such as Zamora, legal experts told Human Rights Watch. As of this writing, despite the new law, the attorney general has not dropped the case and the court has not ruled.
In August 2013, a court sentenced Pepe Acacho, a Shuar indigenous leader, to 12 years in prison for terrorism.
A prosecutor accused Acacho of using several radio stations, including a community radio station he directed, to incite demonstrators to take to the streets with spears and bottles with poison to protest a government-sponsored mining law. The court found that Acacho had incited others to participate in violent protests in September 2009 in the city of Macas in the Ecuadorian Amazon, in which several members of the Shuar community and 38 police officers were injured, and a teacher was killed. He was sentenced to 12 years in prison for terrorism.
Acacho told Human Rights Watch that he had only called for peaceful demonstrations and the courts had mistranslated and misrepresented his message in Shuar, his indigenous language. Acacho said that the spears carried by the demonstrators are symbolic to the Shuar people and were not intended for use as weapons. There had been minor incidents, but he said that wide-scale violence erupted only after the police used excessive force to disperse the demonstration.
After he was convicted, Correa said during one of his Saturday TV shows that Acacho’s “irresponsibility” had led to the violence and the teacher’s death. Correa conceded that the 12-year sentence might be excessive, but defended the conviction saying that “in any civilized country this is a crime, and this type of crime exists.”
Acacho’s defense lawyer appealed, asking the courts to apply the new criminal code in his case. However, in October 2014, an appeals court refused to re-examine whether Acacho’s acts would be considered terrorism under the new code’s definition. Notwithstanding that violent acts occurred, for which those responsible can and should be held accountable, the charges of terrorism against Acacho were based on an overly broad and vague definition, which the National Assembly subsequently narrowed. Instead of taking the new definition into consideration, the court upheld the conviction, contending that the new code was not applicable to the case because the sentences for terrorism under the new law are harsher than under the old one.
In October, Acacho appealed the conviction again and has been waiting seven months for the National Court of Justice to set a date for a hearing, which under Ecuadorian law should be heard in less than a month.