Ecuador

Region Central and South America

National Report

Summary of Contents

1. GENERAL INFORMATION

The Constitution of the Republic establishes that Ecuador is under a Constitutional Rule of Law, social, democratic, sovereign, independent, unitary, intercultural, multinational and secular. The country is organized as a republic and is governed in a decentralized manner. Sovereignty resides with the people, whose will is the foundation of authority, and is exercised through public bodies, and forms of direct participation established in the Constitution.

Its power structure is divided into five state branches which are: (i) Legislative Branch (article 118 and following), (ii) Executive Branch (article 141 and following), (iii) Judicial Branch and Indigenous Justice (article 167 and following), (iv) Transparency and Social Control Function (article 204 and following); and, (v) Electoral Function (article 217 to 221)[1].

According to projections of the National Institute of Statistics and Censuses (INEC)[2], a total of 17,510,643 people live in Ecuador. The self-proclaimed mestizo population predominates (71.9%), although there are other types of nationalities and indigenous peoples.

Chart 1. Distribution of Ecuadorian population according to ethnic identification

The official language is Castilian and the predominant religion is Christian – Catholic (84.4% of Ecuadorians define themselves as Catholic)[3]

In the economic sphere, in 2019, Ecuador registered a growth of 0.1%, which is equivalent to USD 71,909 million. In the same way, during the fourth quarter of 2019, the Gross Domestic Product (GDP) decreased by 0.7% in relation to the previous quarter and a negative variation of 1.0% in compared to the fourth quarter of 2018.[4]

As of December 2019, Ecuador recorded that income poverty was 25.0% (as of December 2018, income poverty was 23.2%, the statistical difference has no significance). Poverty in urban areas (17.2%) is lower than the national figure, while in rural areas the situation is worse (41.8%). On the other hand, extreme poverty at the national level was 8.9%, (as of December 2018 it was 8.4%, the statistical difference has no significance). In urban areas extreme poverty was 4.3%, while in rural areas it was 18.7%. Inequality, measured through the Gini Coefficient, was 0.473 as of December 2019.[5]

A person born in Ecuador has a life expectancy at birth of 76.8 years and on average they will have 14.9 years of expected schooling and 9.0 years of effective schooling. According to the United Nations National Development Program – UNDP, Ecuador’s Human Development Index is 0.758.[6]

3. PROCESS AND PROCEEDINGS: OVERVIEW

3.1. Criminal Procedure

The competent authority in Ecuador to carry out the pre-procedural and criminal investigation is the representative of the State Attorney General’s Office (Fiscalía General del Estado), for this, he/she has a specialized comprehensive system of investigation and forensic science.

The criminal procedure can start in two ways. First, by means of a complaint or ex officio. This implies that the prosecutor (fiscal) can initiate a preliminary investigation (pre-procedural stage) to determine if there are grounds to formalize an indictment. This stage can last from one to two years depending on the crime; in the case of missing people this stage lasts until the person appears or an accusation is made. As it is a pre-procedural stage, there are usually no measures restricting liberty. However, if the prosecutor considers that there is probable cause, he/she can make a formal indictment requiring pre-trial precautions. Exceptionally, the prosecutor may request the judge at this stage to arrest a person for investigative purposes, but it must be justified and may not last more than 24 hours.

The second way the criminal procedure can start is through an arrest in flagrante delicto. In this case, the person apprehended must be brought to the presence of the competent judge within the first 24 hours after the arrest. In this hearing, the legal situation of the apprehended will be resolved, and charges will be formulated if the prosecutor deems it appropriate.

The prosecution’s investigation stage, which seeks to determine whether there is evidence of guilt or exculpatory evidence in order to maintain or not an accusation, will last up to 90 days (up to 30 in the case of arrests in flagrante delicto) and may be extended for 30 more days in case of multiple defendants or reformulation of charges, without exceeding 120 days.

Upon completion of the prosecutorial investigation stage, if the prosecutor decides to go forward with the indictment, a pre-trial hearing is held, in which it is sought to know and resolve issues that may nullify or invalidate the procedure, support the accusation, share evidence, exclude evidence and make agreements upon evidence. At this hearing, the judge in charge of the case must decide if there is probable cause in the indictment for the defendant to be summoned to trial or if the evidence is not sufficient. The judge is able to issue a dismissal order that nullifies any precautionary measures and dismiss the case; this order can be appealed by the prosecutor.

If a summons for trial is issued, the defendant will be tried in an oral, public and adversarial hearing before a criminal court, made up of three judges, who, after analyzing the evidence, issue a sentence of guilt or a ratification of the state of innocence of the accused. This decision is appealable.

In the case of arrests in flagrante delicto, it is necessary to clarify that in flagrante means that one or more individuals committed a crime in the presence of one or multiple witnesses or that the crime is discovered immediately after the fact, whenever there is an uninterrupted chase from the moment of the supposed fact on the moment of apprehension. The same applies when it comes to possession of firearms, instruments, illicit goods and documents related to the recent crime committed. It is necessary to clarify that it will not be possible to claim uninterrupted chase if it has been more than 24 hours between the offense and the apprehension and that the competent authority must finally resolve the legal situation of the apprehended individual within 24 hours of apprehension.

Once the investigation is over, if there is a judicial summons for the accused or if the individual is being held in pre-trial detention, trial will have to be carried out within specific time periods: six months in cases of crimes punishable with incarceration for up to five years, and one year, in the case of offenses punishable with incarceration longer than five years. The presence of the defendant during the court hearing is mandatory. However, Ecuadorian laws establish exceptional cases in which the accused can be allowed to be absent, such as: embezzlement, bribery, extortion by public officer and illicit enrichment.

The Ecuadorian State was convicted by the Inter-American Court of Human Rights for cases related to the failure to respect due process in criminal cases, among these sentences are: Acosta Calderón vs. Ecuador, Chaparro Lapo vs. Ecuador, Zambrano Lapo vs. Ecuador, Tibi vs Ecuador.

Given this, expiration times have been implemented for pre-trial detentions and sanctions in case of non-compliance with due process have been stablished. This has made possible to minimize the excessive pre-trial detentions that caused the country to be sanctioned internationally.

Evidently, due process contains more guarantees in addition to limited periods of pre-trial detention or measures that limit the exercise punitive power. Since the Constitution of 2008, Ecuador has implemented the institutionalization of a public defense in order to guarantee access to justice for those who may be defenseless, providing technical and adequate defense to people who are implicated in criminal cases. It is undeniable that Ecuador has a long way to go in respect to and recognition of due process, but it is also necessary to recognize the efforts that have been made to be able to create institutions that allow it to be guaranteed, practiced, and safeguarded.

3.2. Civil Procedure

In the civil arena there are the following procedures: Ordinary (Ordinario), Summary (Sumario), Voluntary without Opposition (Voluntario sin Oposición), Volunteer with Opposition (Voluntario con Oposición), Executive (Ejecutivo), Payment Order (Monitorio) and Execution (Ejecución).

Wherever relevant, the parties are encouraged to reach a peaceful solution. Thus, if the judge orders, a conciliatory hearing is held. The judge can also order that the process be referred to a Mediation Center (Centro de Mediación).

At all times, the procedure seeks to comply with the legal provisions and deference to due process enshrined in Article 76 of the Constitution of the Republic of Equador. In this sense, the country has several conventions that endorse that end, as in the case of the International Pact of San José, Costa Rica, which in its article 25 urges countries to guarantee the right to direct access to simple and fast means to plead before judges and courts, in case of violations of their rights. Furthermore, the signatories countries undertake the commitment to directly guarantee or comply with the decisions of the competent authorities when someone file these motions.

3.3. Alternative dispute resolution

In Ecuador there is the possibility of resolving conflicts through alternative mechanisms, in a friendly and voluntary manner, with respect and dignity. Conciliation, mediation and arbitration are especially applied, whose constitutional basis are in article 190 of the Constitution of the Republic, and article 17, second paragraph of the COFJ. In addition, one of the strategic axes of public policy for the justice sector is to promote the application of these alternative methods.

Civil Judges are required to apply conciliation as a way to end legal disputes, in accordance with the provisions of article 233 of the General Organic Code of Procedures (Código Orgánico General de Procesos). In criminal matters, especially misdemeanors and some crimes, they are likely to conclude the procedure through conciliation. All these mechanisms, being part of the judicial process, are financed by the government.

The parties, freely and voluntarily, can submit their conflicts to mediation or arbitration, as long as it is a negotiable matter. The parties, by mutual agreement or unilaterally at their discretion, can choose a free center that is a public service provided by the State or a private center. All these centers are regulated by the Council of the Judiciary.

Once the parties sign a total agreement, as a result of the mediation procedure, these agreements are binding. The same happens once an Arbitration Tribunal, to which the parties decided to submit issues, comes to a resolution.

It is important to clarify that the decisions delivered from these procedures cannot be challenged. Being a voluntary act between the parties, the resolutions have the character of final judgment as res judicata.

This type of procedure is supposed to become more and more frequent, since it is a restorative justice, a culture of peace and harmony, in addition to being a friendly process. In most cases, the emotional cost to the parties is minimal, as is the financial cost. It is a very agile process compared to an ordinary process, therefore, a successful government policy should be the submission of certain matters such as family, contractual relationships of low amounts, tenancy, labor, first, to an alternative procedure such as mediation.

3.4. Simplification of law and by-passing legal processes

The Law for the Optimization and Efficiency of Administrative Procedures (Ley Orgánica Para la Optimización y Eficiencia de Trámites Administrativos) aims to simplify and reduce management costs, in order to facilitate the relationship between the administered and the Public Administration and between the entities that compose it, as well as, guarantee people’s right to have an efficient, effective, transparent and quality Public Administration.

In article 2 of the aforementioned law, it is indicated that the provisions are applicable to all administrative procedures that are managed by public institutions of the State, including the judicial.

On the other hand, article 118 of the General Organic Code of Procedures (Código Orgánico General de Procesos), determines that:

“… The actions carried out by or before the judge will be registered by any telematic means installed in the judicial offices, in order to guarantee the conservation, reproduction of its content and its security. (…) Copies will always be conferred electronically, unless the need for them to be delivered in a physical document is proven. In the latter case, the coordinator of the judicial unit will grant them at the expense of the applicant, and certified, if so requested.”[1]

Article 18 of the Notary Law (Ley Notarial) highlights a number of new powers conferred to notaries in order to decongest judicial offices in non-contentious matters.

Article 7, third subparagraph, of the Organic Code of the Judicial Function (Código Orgánico de la Función Judicial), determines that judges and justices of the peace will resolve through fairness judgment and will have exclusive and compulsory competence to hear those individual, community, neighborhood and misdemeanors conflicts that are subject to their jurisdiction, in accordance with the law.

Likewise, article 253 of the same normative body establishes the powers of the Justices of Peace (Jueces de Paz), which are intended to resolve conflicts, within certain established parameters, without the need to reach other instances, which allows to decongest the judicial system.

5. COSTS OF RESOLVING DISPUTES WITHIN THE FORMAL JUDICIAL MACHINERY

5.1. Mechanisms to reduce costs by variations to courts and procedures

In the Ecuadorian criminal sphere, there are special procedures, which allow reducing the cost of resolving certain categories of conflicts. These are:

  1. The direct procedure (procedimiento directo) is applied in arrests in flagrante delicto for crimes punishable by imprisonment of up to 5 years and crimes against property whose amount does not exceed 30 times the minimum wage. Crimes related to public administration are excluded from this procedure. It seeks to administer justice in an agile way and for that reason investigation times are reduced and a Unified Hearing (which unifies the trial preparatory hearing and the trial hearing) must be carried out within a maximum period of 10 days.
  2. The abbreviated procedure (procedimiento abreviado) is applied in offenses punishable by custodial sentences of up to 10 years. It implies that the defendant must expressly consent to the application of this procedure and the admission of the facts attributed to him, along with the validation of its technical defense that there is no violation of rights. It can be applied from the submission of charges to the preparatory hearing for the trial and consists of an admission of the facts and an imposition of a reduced penalty that will be the result of the analysis of the facts, the application of mitigating measures without the reduction being less than one third of the minimum penalty provided for in the criminal type.
  3. The expedited procedure (procedimiento expedito) is applied for the trial of misdemeanors and traffic offenses. It seeks to develop the procedure in a single hearing, in which, at the same time, it is allowed to reach a conciliation; In the case of violators caught in flagrante, the hearing must be held within 24 hours after apprehension; If it is not an arrest in flagrante, the hearing will be held within a maximum period of 10 days from the day the judge becomes aware of the violation. In the case of violations against women and members of the family group, there are special provisions.

In certain cases, it is allowed to apply alternative mechanisms to the prosecution that do not involve a sentence and that are derived from the will of the parties, this is known as Conciliation (Conciliación).

The Conciliation is governed by the principles of volunteering and flexibility, it is carried out from the investigation phase until before the conclusion of the Prosecution’s investigation. It is applicable for crimes punishable with imprisonment of up to 5 years, traffic offenses that do not result in death, crimes against property whose amount does not exceed 30 times the minimum wage. Crimes against public administration, life, sexual integrity, among others, are excluded. Seeks full reparation to the victim.

6. TECHNOLOGICAL INNOVATION AND ACCESS TO JUSTICE

In Ecuador, 37.9% of people used the internet in 2018. Of these, 49.1% accessed from home, 7.8% from work, 16.2% from an educational institution, the 19.2% from public access centers, 5.97% from someone else’s home and 1.8% referred other places.

Regarding the proportion of people who have active mobile phones, it should be noted that there was an increase of 9.7 points at the rural communities compared to 2012, as opposed to a decrease of 0.5 points compared to 2018. In 2018, the percentage of people who have a smartphone with respect to the population aged 55 and over grew 4.2 percentage points at the national level, 41.3 points in urban areas and 22.0 points in rural areas, meaning as a smartphone to a cell phone Smartphone.

Regarding the frequency of internet use nationwide, 66.2% access it from home. In rural areas, the home is the most frequent place where the internet is used. Specifically in 2018, 49.1% accessed the internet from home, 7.8% did so from work, 16.2% from an educational institution, 19.2% from a public access center, 5.99% from someone else’s house, 1.8% refer to another place.

In 2018, 84.0% of people who use the internet did so at least once a day, showing an increase of 24.1 percentage points compared to 2012.[1]

In Latin America, one of the social spaces where technology is in conflict, in the case of ICT, is that of the so-called ICT networks for development. These networks, being generally financed by multilateral organizations, naturalize and generate controversy about the meanings of technology and its role in development to the extent that they prioritize certain local groups (Ribeiro, 2007). In the Ecuadorian case, we find one of the experiences considered successful of this style: the network of information and communication technologies for development, Infodesarrollo. This network, which has been operating for five years, has succeeded in bringing together the main public, private and NGO entities and defining the legitimate meanings of ICTs for development in Ecuador. At the international level, there is a convergence of multilateral organizations that are part of Infodesarrollo and that have allowed the legitimate meanings that have been assigned to ICT for development in Ecuador to be translated into a global context as successful experiences and models to follow in other countries.[2]

7. CONCLUSIONS

  • Indigenous justice (justicia indígena) is recognized, based on their ancestral traditions and their own right, within their territorial limits, with a guarantee of participation and decision of women. The State will guarantee that the decisions of the indigenous jurisdiction are respected by the institutions and public authorities. Such decisions are subject to constitutional review. The law will establish the mechanisms for coordination and cooperation between the indigenous jurisdiction and the ordinary jurisdiction.
  • The competent authority in Ecuador to carry out the pre-procedural and criminal procedural investigation is the representative of the State Attorney General’s Office (Fiscalía General del Estado), for this, it has a specialized comprehensive investigation, coroners office and forensic science system.
  • The Constitution of the Republic of Ecuador, regarding the guarantee of access to justice for people who due to their state of defenselessness cannot hire the services of a private legal defense, has established that the institution in charge of providing legal aid and free legal advice is the Public Defender’s Office (Defensoría Pública), as contemplated in article 191, which in its pertinent part reads: “The Public Defender’s Office is an autonomous body of the Judicial Function whose purpose is to guarantee full and equal access to justice for persons who, due to their state of defenselessness or economic, social or cultural condition, cannot hire legal defense services for the protection of their rights. The Public Defender’s Office will provide a legal, technical, timely, efficient, effective and free service, in the assistance and legal advice of people’s rights, in all matters and instances …”[1]
  • The Public Defender’s Office (Defensoría Pública) as an institution was born in the 2008 Constitution, which in its activities that add value to its function is to provide free legal aid and legal advice on all matters to people who cannot hire the services of a private lawyer.
  • Legal aid is configured as a public service mechanism aimed at making the rights of people effective, which may not opt ​​for a assistance in favor of the person who requires this service.
  • Regardless of the precautionary measure stablished, the Public Defender’s Office continues to sponsor the case as long as the person does not have a private lawyer. There are no exclusion criteria in the defense of people accused or investigated for a crime.
  • The Public Defender’s Office has specialized defenders in the matter of victims, for care and sponsorship in accordance with internal Resolutions.
  • The services provided are completely technical and free. The Public Defenders are civil servants and as such the State is in charge of paying their salaries.

BIBLIOGRAPHY

[1] Constitución de la República del Ecuador.

[2] INEC. Censo de Población y Vivienda, 2010.

[3] INEC. First Official Statistics on Religious affiliation in Ecuador, 2012.

[4] Central bank of Ecuador. Quarterly National Accounts of Ecuador, Results of the macroeconomic variables, 2019. IV.

[5] INEC. Technical Bulletin Poverty and Inequality, 2019.

[6] UNDP. Human Development Indices and Indicators, 2019.

[7] Constitution of the Republic of Ecuador, Fourth Section – Organization and Operation.

[8] Original version: “Las autoridades de las comunidades, pueblos y nacionalidades indígenas ejercerán funciones jurisdiccionales, con base en sus tradiciones ancestrales y su derecho propio, dentro de su ámbito territorial, con garantía de participación y decisión de las mujeres. Las autoridades aplicarán normas y procedimientos propios para la solución de sus conflictos internos, y que no sean contrarios a la Constitución y a los derechos humanos reconocidos en instrumentos internacionales. El Estado garantizará que las decisiones de la jurisdicción indígena sean respetadas por las instituciones y autoridades públicas. Dichas decisiones estarán sujetas al control de constitucionalidad. La ley establecerá los mecanismos de coordinación y cooperación entre la jurisdicción indígena y la jurisdicción ordinaria que las autoridades de las comunidades, pueblos y nacionalidades indígenas, ejercerán funciones jurisdiccionales, con base en sus tradiciones ancestrales y su derecho propio, dentro de su ámbito territorial, con garantía y participación de las mujeres”.

[9] Article 4 of the Regulation of Pre-Professional Practices of Graduates of the Faculties of Law and Legal Sciences.

[10] Article 341 of the COFJ.

[11] Original version: “… Las actuaciones realizadas por o ante la o el juzgador se registrarán por cualquier medio telemático instalado en las dependencias judiciales, a fin de garantizar la conservación, reproducción de su contenido y su seguridad. (…) Las copias se conferirán siempre en medio electrónico, salvo que se acredite la necesidad de que sean entregas en documento físico. En este último caso, la o el coordinador de la unidad judicial las otorgará a costa del requirente, y certificadas, de así habérselo solicitado.”

[12] Encuesta Nacional Multipropósito de Hogares (Seguimiento al Plan Nacional de Desarrollo) Diciembre, 2018 (Objetivo 6 y 7).

[13] Public Defender of Ecuador. Information Management System of the Public Defender’s Office – SGDP.

[14] INEC. Main Results of the Multipurpose Survey – ICT, 2018.

[15] Jimenez, J. The Role of ICT in Development: A view from the social construction of technology in the Ecuadorian case. FLACSO – Ecuador.

[16] Original version: “La Defensoría Pública es un órgano autónomo de la Función Judicial cuyo fin es garantizar el pleno e igual acceso a la justicia de las personas que, por su estado de indefensión o condición económica, social o cultural, no puedan contratar los servicios de defensa legal para la protección de sus derechos. La Defensoría Pública prestará un servicio legal, técnico, oportuno, eficiente, eficaz y gratuito, en el patrocinio y asesoría jurídica de los derechos de las personas, en todas las materias e instancias…”