(Washington, DC) – The newly elected President of Ecuador, Guillermo Lasso, who took office on May 24, 2021, and the Ecuadorean National Assembly should prioritize implementing Constitutional Court rulings that advance human rights protections, Human Rights Watch and the Observatory of Rights and Justice (Observatorio de Derechos y Justicia, ODJ) said today. In many cases, the court specified action required by lawmakers and the president to carry out its rulings.
Outgoing President Lenín Moreno led a process that sought to restore the independence of key institutions, including the Constitutional Court, and made other important changes to repair damage to democratic institutions inflicted by former President Rafael Correa from 2007 to 2017. A transitional Council of Citizen Participation appointed nine new, well-respected jurists to the Constitutional Court in 2019. The court has issued multiple rulings since then that protect the rights of women and girls; prisoners; refugees and migrants; and lesbian, gay, bisexual, and transgender people, and address critical human rights matters like freedom of expression and use of force.
“Lenín Moreno’s most significant legacy is helping to strengthen key democratic institutions after Rafael Correa’s blatant attempts to undermine the rule of law and judicial independence during his decade in power,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The adherence to international and constitutional standards shown by the current Constitutional Court is a milestone in Ecuadorian democracy; its rulings upholding basic rights should guide policy decisions and legislative debates during Lasso’s presidency.”
Human Rights Watch and ODJ reviewed a series of judicial rulings relating to human rights in light of international law requirements, reviewed the steps that had been taken to carry them out, and determined what additional action was needed.
Lasso took office in a country that faces significant human rights challenges, compounded by the Covid-19 pandemic and the economic hardships it has exacerbated. The 137 lawmakers of the National Assembly, where Lasso lacks a majority, also started their four-year term in May 2021.
In several rulings, the Constitutional Court has found certain laws unconstitutional, including those restricting same-sex marriage and abortion in cases of rape. In these cases, the court itself changed laws or mandated the adoption of specific laws consistent with their rulings and international standards. President Lasso and other relevant authorities should comply with these rulings by promptly proposing appropriate legal reforms. The National Assembly should prioritize debate and passage of new legislation in accordance with international human rights standards.
In other rulings – including some involving women’s education and prisoners’ health – the justices have called for new measures to protect or guarantee fundamental rights. In such cases, the Lasso administration should develop policies and work with lawmakers to draft bills in accordance with the rulings and international standards.
Human Rights Watch and ODJ have analyzed the following Constitutional Court rulings, which Ecuador’s incoming leadership should follow and implement:
- Decriminalization of abortion in all cases of rape. This ruling, issued in April 2021, decriminalizes abortion for anyone who is pregnant as a result of rape. A previous law allowed such abortions only if the person had a “mental disability” – an intellectual disability. The court left the door open to further decriminalization.
- Affirmative Action. The court ruled that a public selection process for judges that gave additional points to women was necessary to eliminate discrimination and increase women’s representation.
- Women and girls’ right to education. The court held that suspending or expelling someone from school for being pregnant or giving birth or for their marital status constitutes discrimination and violates the rights to education, freedom, and the realization of a life project.
- Right to civil marriage and unions for same-sex couples. In three separate rulings, the court recognized the right to same-sex marriage, citing provisions against discrimination in constitutional and international law.
- Standards on the use of force by law enforcement agents and armed forces. The court ruled that a resolution adopted by the Ministry of Defense that had allowed the armed forces to participate in law enforcement activities was unconstitutional. It held that the role of the armed forces in law enforcement activities should be exceptional, regulated by law, and only employed when absolutely necessary.
- Judicial independence. The court ruled that the Judiciary Council – charged with appointing and removing judges – cannot sanction a judge, prosecutor, or public defender for “inexcusable error,” “criminal intent,” or “evident negligence” without a prior judicial finding supporting the sanction. The Judiciary Council had used sanctions during Correa’s government to arbitrarily remove judges.
- Right to freedom of speech. In two separate judgments, the court ruled that all restrictions on freedom of speech must comply with international standards, and urged the judiciary and other public institutions to ascertain whether future or existing restrictions on freedom of speech meet those standards.The court also ruled that public institutions and figures are not entitled to the same degree of protections for reputation or honor as private citizens, and highlighted the importance of the right to freedom of speech during elections.
- Protection of migrants and refugees. In three separate rulings, the court upheld the rights of refugees and migrants to due process, including by prohibiting collective removal and upholding the principle of nonrefoulement, which prohibits returning people to a country where they would be subject to torture or abuse; and by prohibiting deprivation of liberty for immigration purposes.
- Prisoners’ right to health. The court held that prisoners must have access to health services, including appropriate and quality medications, treatment, and care.
In each ruling, the court identified specific steps, described below, that should be taken by relevant authorities to ensure those rights are adequately protected in Ecuador.
President Lasso issued a public statement on April 28, after the court’s ruling decriminalizing abortion in cases of rape, saying that he and his government will honor the decision out of respect for the basic principles of democracy, despite his personal convictions opposing abortion.
His government should promptly implement all Constitutional Court rulings that protect fundamental rights, Human Rights Watch and ODJ said. Additional rights-related cases remain pending before the Constitutional Court.
“As it decides on its policies and practices, the Lasso administration needs to take into account Ecuador’s international human rights obligations, including interpretations by the Inter-American human rights system that have been upheld by the Constitutional Court,” said María Dolores Miño, executive director at ODJ. “Such obligations entail not only refraining from committing human rights violations, but also taking concrete steps to prevent them and to protect rights.”
For more information on Human Rights Watch’s and ODJ’s analysis of Constitutional Court rulings, please see below.
Ecuador is party to several international treaties that protect the rights that the Constitutional Court referenced in the rulings analyzed in this report. These include the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the Refugees Convention; the Convention on the Rights of Persons with Disabilities; the American Convention on Human Rights; and the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women, among others. Ecuador has signed the Cartagena Declaration on Refugees, which is a non-binding international instrument.
Human Rights Watch analyzed rulings that uphold women’s rights, LGBT rights, international standards on the use of force, judicial independence, free speech, and the rights of prisoners.
Until April 2021, the right to seek an abortion in Ecuador applied when a pregnancy endangered the person’s health or life or resulted from the rape of someone with a “mental disability” [intellectual disability]. Pregnant people, including rape victims, face many barriers to accessing legal abortion and post-abortion care in Ecuador. These include criminal prosecution, with sentences of up to two years in prison, stigmatization, and mistreatment. The National Assembly rejected a proposal in 2019 to decriminalize abortion in all cases of rape or severe fetal impairment.
On April 28, the Constitutional Court issued a ruling decriminalizing abortion in all cases in which the pregnancy results from rape, eliminating the “mental disability” [intellectual disability] requirement. The court held that there is no real or objective evidence that criminalizing abortion discourages anyone from having an abortion. Instead, it encourages them to have abortions in hiding and with high-risk procedures that endanger their health and life. It also concluded that there is no justification for treating a rape victim differently based on whether or not they have an intellectual disability.
The court ordered the Ombudsperson’s Office to draft and introduce a bill in the legislature to comply with the judgment within two months and required the National Assembly to debate the bill within six months of its introduction. Although the scope of the ruling was limited to the question of “mental disability” and rape, the court left the door open for further decriminalization, concluding that the National Assembly cannot avoid its responsibility to legislate to defend and protect all the constitutional rights of women and girls. The court cited UN committees and special rapporteurs on the decriminalization of abortion and the elimination of unsafe abortion.
Any future debate and legislation should build on the ruling, enhancing access to abortion beyond the specific circumstances that the court addressed. It should take into account international human rights standards on the protection of women and girls’ reproductive rights and the need to decriminalize consensual abortion.
Ecuador’s Constitution bars discrimination on the basis of traits including gender identity, sex, sexual orientation, and disability, and provides that the “State shall adopt affirmative action measures that promote real equality for rights holders who are in a situation of inequality.”
CEDAW provides that countries should adopt “all appropriate measures, including legislation, to ensure the full development and advancement of women.” The CEDAW Committee, the body charged with monitoring states’ implementation of the convention, urges the adoption of special measures “to accelerate the modification and elimination of cultural practices and stereotypical attitudes and behavior that discriminate against or are disadvantageous for women.” Such measures should be discontinued only when equality of opportunity and treatment have been achieved, the committee says, and should not themselves be considered discriminatory, as defined in CEDAW.
Ecuador’s Constitutional Court ruled in 2019 that a public selection process for the appointment of 101 judges that had given additional points to women candidates was necessary and conducive to eliminate discrimination and facilitated increasing women’s representation in the judiciary. Even with the measure in place, women only obtained 35 of the 101 positions, the court noted, showing that it had “not yet been possible” to eliminate the equality gap, and that it remained the responsibility of the government to put in place measures to reach that goal.
Right to Education
Sexual violence is a longstanding, pervasive problem in Ecuador’s educational institutions. Between 2014 and May 2020, Ecuador’s Education Ministry registered 3,607 complaints of school-related sexual violence. Pregnancy is another concern when it causes girls to drop out of school. In 2017, nearly 6,500 girls dropped out of school prematurely in Ecuador because of a pregnancy.
The CEDAW Committee requires states party to the convention to make education at all levels accessible, “in both law and practice, to all girls and women, including those belonging to disadvantaged and marginalized groups, without discrimination on any prohibited ground.” CEDAW has, accordingly, said that countries should abolish laws and policies that allow expulsion from school for pregnancy, including those that restrict returns after giving birth. The Committee on the Rights of the Child has said that Ecuador should design and carry out strategies and systems aimed at eliminating gender stereotypes and combatting prejudice against pregnant girls and adolescent mothers, paying special attention to education.
In a case in which a military school expelled a student as punishment for pregnancy, the Constitutional Court held, in March 2020, that suspending or expelling a person for pregnancy, maternity or paternity, or marital status constitutes discrimination and violates the constitutional rights to nondiscrimination and education, among others. The court ordered military institutions to adopt measures to prevent this type of violation, and said that education, human rights, and gender equality authorities should put in place a gender policy for educational institutions that includes preventing discrimination against pregnant women.
An earlier Constitutional Court ruling, issued in 2018, also established an important precedent by concluding that children have the right to make decisions about their sexual and reproductive rights, and to receive guidance and tools to make informed and responsible decisions freely.
Until 2019, same-sex marriage was prohibited in Ecuador. But in June of that year, the Constitutional Court found article 81 of the Civil Code, which defined marriage as being between a man and a woman, unconstitutional for failing to guarantee same-sex couples the right to civil marriage. The ruling cited international law, as well as constitutional provisions against discrimination. The court changed the wording of article 81 to read as follows: “Marriage is a solemn contract by which two people unite to live together and help each other.” That change was effective immediately.
In 2017, the Inter-American Court of Human Rights issued an advisory opinion holding that different treatment of same-sex couples and heterosexual couples regarding how they can form a family “does not pass the strict test of equality” under human rights standards and that there is no legitimate purpose for which such differentiation could be considered necessary or proportionate.
The same month that the Constitutional Court overturned article 81, it ordered the Civil Registry to register same-sex couples’ marriages, holding that the Inter-American Court’s opinion shapes the scope of rights in Ecuador and should influence interpretation of Ecuadorean law.
The court urged the National Assembly to revise legal provisions on civil marriage to include same-sex couples. The National Assembly has not yet complied.
The following month, the Civil Registry registered the first same-sex marriage.
In November 2019, the court also upheld a lower court decision ordering the Civil Registry to register “de facto” unions – known in some countries as civil unions – without distinguishing on the basis of sexual orientation.
Use of Force by Law Enforcement Agents, Armed Forces
The Defense Ministry adopted a resolution on May 29, 2020, giving the military broad powers to use lethal force and to participate in security operations at demonstrations and meetings. The resolution followed several incidents of police and military abuse, including against protesters in October 2019 and May 2020. On May 6, 2021, the court ruled that the resolution was unconstitutional on various grounds.
The court held, citing rulings of the Inter-American Court of Human Rights, that the role of the armed forces in law enforcement activities must be exceptional, temporary, limited only to what is strictly necessary, and complementary to that of law enforcement agents. Military forces may only be deployed under orders of the president, a civilian authority, the court ruled, and only if a state of exception is declared. The court also held that any such deployment needs to be regulated by law and that protocols on the use of force must be grounded in the principles of exceptionality, proportionality, and absolute necessity.
The court also instructed the National Assembly to consider its findings and relevant international standards during its debate on a pending bill, the Organic Law for the Legal, Proportional, Adequate and Necessary Use of Force.
Relevant international standards and decisions include a 2007 ruling against Ecuador by the Inter-American Court of Human Rights in a case in which the military extrajudicially executed three men. In the ruling, the Inter-American Court noted that states must be extremely careful “when they decide to use their armed forces as a means for controlling social protests, domestic disturbances, internal violence, public emergencies, and common crime.” The court ruled that there must be “a clear demarcation between military and police duties.”
Under the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, security officers must apply nonviolent means before resorting to the use of force and firearms. The lethal use of firearms is only permitted when strictly unavoidable to protect life, and only when “less extreme means” are insufficient. This principle is important, as it recognizes that firearms are more likely to cause death or injury than other means.
Corruption, inefficiency, and political interference have plagued Ecuador’s judiciary for years. During former President Rafael Correa’s administration, high-level officials and Judiciary Council members interfered in cases affecting government interests and in the appointment and removal of judges. Ecuador’s Organic Code of the Judiciary allowed the Judiciary Council to suspend or remove justice officials, including judges, for acting with “criminal intent, evident negligence or inexcusable error.”
Between January 2013 and August 2017, the Judiciary Council suspended or removed 145 judges for alleged “inexcusable errors.”
Although reforms carried out during Moreno’s government improved the independence of key institutions, several other measures continued to undermine judicial independence, including a flawed process by the Judiciary Council to select, evaluate, and appoint temporary judges to the National Court of Justice; allegations of improper pressure by government officials on judges, including on magistrates of the Constitutional Court; and claims of due process violations in high profile corruption cases.
The United Nations Basic Principles on the Independence of the Judiciary provide that judges should be subject to suspension or removal “only for reasons of incapacity or behavior that renders them unfit to discharge their duties.” The UN Human Rights Committee has correctly noted that provisions allowing removal for legal errors tend to “expose judges to political pressure and jeopardize their independence and neutrality.” (Human Rights Watch documented the undermining of judicial independence in Ecuador in 2014 and 2017.)
On August 23, 2020, Ecuador’s Constitutional Court issued a ruling that significantly limited the legal framework allowing the Judiciary Council’s interference in the judiciary. It ruled that, before the Judiciary Council can sanction a judge, prosecutor, or public defender, there must be a judicial finding of “inexcusable error” or “criminal intent,” defined as a conscious decision to intentionally do something forbidden by law, or “evident negligence.” It required the National Assembly to reform the Organic Code of the Judicial Function, taking into account the parameters established in the judgment. The law has been changed.
The president and National Assembly should build on the court’s ruling and adopt additional policies and legislation to strengthen judicial independence that fully comply with international standards, including by defining clearly and narrowly what can be considered an “inexcusable error,” if the term remains in the legislation. The president and relevant authorities should allow the judiciary to work without improper pressure in all cases. National authorities should also ensure thorough and independent investigations and prosecutions of high-level corruption cases, while strictly complying with human rights standards such as the presumption of innocence.
Freedom of Expression
During the Correa administration, several journalists, editors, and newspaper directors who had criticized the government were convicted of criminal defamation. The Superintendency of Information and Communication (Supercom), a regulatory body, harassed and imposed administrative sanctions on independent media outlets.
In 2018, during the Moreno presidency, legislators eliminated the Supercom, and in 2020, they rescinded statutes identifying communication as a public service. Considering communications a “public service” was problematic because it granted the authorities broad powers to regulate communications and the right to freedom of expression.
The Inter-American Court of Human Rights has recognized the right to freedom of speech as a “cornerstone” of democratic societies, and a necessary condition for the “development of political parties, trade unions, scientific and cultural societies and, in general, those who wish to influence the public.” The court has also held that political and public personalities must endure stricter public scrutiny.
In a lawsuit brought by the Correa administration against the newspaper La Hora, for an article exposing the unreasonable expenditure of public funds on a government publicity campaign during an election season, the court ruled in 2019 that public institutions do not hold the same right to reputation or honor as private citizens. Judges must apply strict criteria when assessing the validity of restrictions on speech for the protection of public officials, the court ruled, and, in accordance with international standards, judges must consider whether a restriction is provided for by law, pursues a legitimate aim, and is necessary and proportionate to achieve that aim.
In September 2020, the court analyzed the importance of the right to freedom of speech during elections. The highest electoral authority, the Supreme Electoral Tribunal (Tribunal Supremo Electoral), had fined the media outlet Vistazo, holding that Vistazo had engaged in electoral advertising by publishing an editorial favoring a “no” vote on various questions in a 2011 referendum organized by the Correa government.
The court held that the sanction constituted an inadmissible restriction on freedom of expression. It pointed out that freedom of expression and information acquires greater importance in electoral periods, when citizens exercise their political rights. The court urged the judiciary and other public institutions to ensure that any future or existing legal restrictions on the right to freedom of speech comply with international standards.
During one of his first days in office, Lasso sent a bill to the National Assembly to replace the Communications Law. The bill cites Inter-American standards on freedom of speech. The National Assembly should debate the bill, amend provisions that may still undermine fundamental rights, and adopt new legislation that complies with Ecuador's international human rights obligations, including by eliminating criminal defamation and ensuring civil defamation procedures appropriately protect freedom of expression.
Migrant and Refugee Rights
Ecuador has passed some of the most progressive laws in the region protecting migrant and refugee rights. It claims it has recognized the largest number of people as refugees of any country in Latin America. As of February 2021, Ecuador was sheltering 70,452 people recognized as refugees, according to the Ministry of External Relations and Human Mobility. The majority came from Colombia and Venezuela.
The American Convention on Human Rights guarantees “the right to seek and be granted asylum in a foreign territory” and ensures that “in no case may an alien be deported or returned to a country … if in that country his right to life or personal freedom is in danger of being violated….” This principle of nonrefoulement, a cornerstone of refugee protection provided for in the Refugee Convention, is widely considered part of customary international law, with obligations arising from established practices.
In the Americas, the Cartagena Declaration contains a broader definition that includes people fleeing from “generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” Although this is a non-binding declaration, the broader definition is included in Ecuadorean law.
In October 2020, the Constitutional Court ruled that the Ministry of Government and the National Police had violated a prohibition on collective expulsion of Venezuelans. Police had intercepted 29 Venezuelans in March 2019 and forced them to return to Colombia without due process and without taking them before an immigration authority.
The court ruled that the ministry had also violated the constitutional right to migrate, as well as due process and freedom of movement rights. Due process in administrative decisions related to migrants and refugees requires a review of personal and individual circumstances, the court held, which prevents collective removal. The court ordered the National Police to work on protocols on migration control to comply with international standards. This ruling set an important precedent since this was not the first case of collective expulsion in the country.
The Constitutional Court also specified in 2020, in the case of a Nigerian fleeing gang violence, that certain minimum due process guarantees must be ensured in asylum proceedings. The ruling asserted that, to guarantee the right to a defense, the authorities must provide access to a qualified translator in the applicant’s native language. The court emphasized that someone who meets international requirements to be considered a refugee deserves protection from the state.
The court required the External Relations and Human Mobility Ministry to develop a manual showing refugees how they can gain access to an interpreter. It also required the Judiciary Council to organize a workshop for judges about migrants and refugees’ rights.
In a 2019 case, the court upheld a prohibition on depriving a person of liberty based solely on their immigration status, citing constitutional and international standards, and clarified that habeas corpus protections are applicable not only in prison, but also to migrants and refugees who have been illegally deprived of their liberty.
Overcrowding and other poor conditions, violence, the excessive use of pretrial detention, and inadequate health care are longstanding problems in prisons in Ecuador.Covid-19 outbreaks made things worse, with many detainees contracting the virus and falling ill in overcrowded cellblocks. Several reportedly died. On June 26, 2020, President Moreno decreed that prisoners with certain health conditions that placed them at higher risk of severe Covid-19 symptoms, people with disabilities, older people, and women could serve time under house arrest, but his administration did not adopt a comprehensive policy to reduce the prison population. Uprisings that broke out in four large prisons in Ecuador on February 23, 2021, left at least 79 detainees dead.
The International Covenant on Civil and Political Rights (ICCPR) protects the right to life, and the UN Human Rights Committee, the body charged with monitoring implementation of the ICCPR, has noted that states have “[a] heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty by the State, since by arresting, detaining, imprisoning or otherwise depriving individuals of their liberty, States parties assume the responsibility to care for their lives and bodily integrity.” The International Covenant on Economic, Social, and Cultural Rights also protects the right to health, including that of detainees.
The UN Basic Principles for the Treatment of Prisoners also require that prisoners have access to health services without discrimination. The UN Standard Minimum Rules for the Treatment of Prisoners requires every facility to have at least one qualified medical officer and, for prisoners needing to consult specialists, transfer to appropriate facilities.
In November 2019, the Constitutional Court held that the prison population must have access to health services, including appropriate and quality medications, treatment, and care. The court ruled that such services can be provided directly in detention facilities, through programs allowing treatment outside, or, in exceptional cases, through alternatives to deprivation of liberty. To receive immediate medical attention, prisoners should be able to file complaints about violations of the right to health, the court held. The court ordered the Health Ministry and the national prison system to coordinate with prison authorities to grant access to health services.