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]
2. LEGAL SYSTEM
In Ecuador, the current legal system is Civil Law, since the law is the main source of norms, except for the Ecuadorian indigenous justice where its legal system is customary law.
Indigenous justice is recognized, based on their ancestral traditions and their own right, within their territorial scope, with a guaranteed women participation and decision. The State guarantees that the decisions from the indigenous jurisdiction are respected by public institutions and authorities. Said decisions are subject to the constitutional norm. The law establishes coordination and cooperation mechanisms between indigenous jurisdiction and ordinary jurisdiction.
Article 155 of the Organic Code of Judicial Function (COFJ), establishes that, on the basis of the territorial division of the State, the courts, tribunals and low level judges are organized in: (i) the National Court of Justice (Corte Nacional de Justicia), with jurisdiction throughout the national territory; (ii) provincial courts (cortes provincials), with their corresponding specialized chambers (salas especializadas), which have provincial jurisdiction (and constitutes judicial districts / distritos judiciales); (iii) the tribunals (tribunales) and low level judges (juzgados) with jurisdiction in all districts, or in a section of it, said section being able to include one or more cantons of a province, or one or more parishes of a canton; and (iv) the justices of peace (juzgados de paz), which may have jurisdiction in smaller localities.
The administrative body of the Judicial branch and Indigenous Justice (Justicia Indígena) is the National Council of the Judiciary (Consejo Nacional de la Judicatura). There are also auxiliary bodies such as notaries, trustees, auctioneers, liquidators of costs and lawyers. It is also made up of autonomous institutions such as the State Attorney General’s Office (Fiscalía General del Estado) and the Public Defender’s Office of Ecuador (Defensoría Pública del Ecuador)[1].
There is a structure parallel to ordinary justice called Indigenous Justice (Justicia Indígena), which is recognized in the Constitution of the Republic of Ecuador, in its article 171 which states:
“The authorities of indigenous communities, peoples and nationalities shall exercise jurisdictional powers, based on their ancestral traditions and their own right, within their territorial scope, with a guarantee of participation and decision of women. The authorities will apply their own norms and procedures for the solution of their internal conflicts, provided they are not contrary to the Constitution and human rights recognized in international instruments. The State will guarantee that the decisions of the indigenous jurisdiction are respected by the institutions and public authorities. Such decisions are subject to judicial review for constitutional conformity. The law will establish mechanisms of coordination and cooperation between indigenous jurisdiction and ordinary jurisdiction that the authorities of the indigenous communities, peoples and nationalities will exercise jurisdictional powers, based on their ancestral traditions and their own law, within their territorial scope, with the guarantee and participation of women”.[2]
The basis for the administration of indigenous justice according to the Convention 169 of the International Labor Organization (ILO), follows the same line of the recognition of the control methods of indigenous communities, limited to the violation of fundamental rights defined by the national legal system and internationally recognized human rights. In Article 8, paragraph 1, of the aforementioned agreement, it is established that when applying national legislation to the peoples concerned, their customs or customary law must be duly taken into account.
Paragraph 2 of the same article states that said peoples must have the right to preserve their own customs and institutions, provided that these are not incompatible with the fundamental rights defined by the national legal system, nor with internationally recognized human rights. Whenever necessary, procedures should be established to resolve conflicts that may arise in the application of this principle.
On the other hand, Article 9, paragraph 1, provides that, to the extent that it is compatible with the national legal system and with internationally recognized human rights, the methods to which the interested peoples traditionally concur for the repression of crimes committed by its members must be respected.
The legal procedure in indigenous justice varies and depends on each indigenous community. However, in a general framework it can be detailed as follows:
- Willachina or notice or demand, to bring to the knowledge of the authority the occurrence and the possible responsible parties;
- Tapuykuna or investigation, which is carried out in various proceedings, such as visual inspection; testimonies; versions and documents;
- Chimbapurana, is the confrontation between the accused and the accuser, which begins with the installation of the assembly and information of the facts, clarification between the parties and presentation of all the evidence;
- Killpichirina or sanction, adopted by the assembly;
- Pakachina or execution of the sanction if that is the case, since pardon can be bestowed; and,
- Tantanakushpa cushirina, is the joy for the solution of the conflict and the stage of friendship, forgiveness and prerogatives.
The structure of the legal profession in Ecuador is ordered in the Judicial Function Organic Code (Código Orgánico de la Función Judicial – COFJ), which establishes differences within the judicial branch and the autonomous and independent institutions that administer justice. In the case of judges, they resolve disputes, prosecutors pursue and investigate the crime objectively and the public defender offers his services to people who, among others, have committed an illegal act.
Article 45 of the COFJ establishes 10 categories in the jurisdictional career, category one being the lowest, in which low level judges are found. Entry to the judicial career is achieved by means of a civil servant public selection process, as established in article 36 of the COFJ.
Article 46 of the COFJ establishes, on the other hand, the categories of the prosecutor (fiscal) career, which consist of 10 categories. The first category (or category 1) is the prosecutor for adolescent offenders (agente fiscal / fiscal de adolescentes infractores). Likewise, the appointment of prosecutors at the national level is carried out by means of a civil servant public selection process among the prosecutors who hold at least the third category in the career.
For its part, in article 48 of the COFJ, 10 categories are established for the career of public defenders (defensores públicos). Entry to this career is made from category one, which corresponds to the position of cantonal defender (defensor cantonal). Likewise, the appointment of public defenders is carried out by means of a civil servant public selection process, in which all lawyers in the country and defenders who are at least in category three of the defense career have the right to participate. Lawyers are the only ones authorized by law to provide legal support in different matters and instances and the representation of cases in the courts of Ecuador.
A person who is not a lawyer may be the owner or manager of a law firm. These structures are not common in practice, since the majority of lawyers are not organized in firms and practice their profession privately and independently.
Legal assistants are law students who, prior to practicing the profession, carry out internships with lawyers in public or private institutions in order to assist lawyers and obtain skills for the preparation of legal documents, answering queries, follow-ups and case sponsorship[3]. A paralegal cannot work independently representing his client legally. Failure to comply with these regulations is subject to the sanctions provided in article 330 of the COIP.
On the other hand, it is important to note that the country’s regulations, through article 340 of the COFJ, regulate the figure of the school year of community legal aid (año lectivo de asistencia legal comunitaria), as a way of giving back to society for the benefit of higher education. All law students prior to obtaining the professional title and must carry out pre-professional practices, in accordance with the provisions of article 19 of the Regulation of Pre-Professional Practices of Graduates of the Faculties of Law and Legal Sciences (Reglamento de Prácticas Pre Profesionales de las y los Egresados de las Facultades de Derecho y Ciencias Jurídicas). Upon completion of said year of internship, the National Council of the Judiciary (Consejo Nacional de la Judicatura), according to the evaluation issued by the respective higher institution, issues the Certificate of Professional Aptitude (Certificado de Aptitud Profesional), which is an essential requirement to practice as a lawyer[4].
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.
4. LEGAL AID SYSTEM
4.1. History of legal aid
The approval of the Constitution of Montecristi (Constitución de Montecristi) in 2008, in its preamble includes the recognition of the historical social struggles that have been carried out in our country, in order to end all forms of domination and social exclusion. Article 1 of the Constitution of the Republic of Ecuador establishes that Ecuador is under a Constitutional Rule of Law and Justice. This postulate affirms that the value “justice” is one of the primary purposes of the State, which exclusively assumes the ownership of that power.
The Public Defender’s Office (Defensoría Pública) as an institution was created by the 2008 Constitution, which establishes as its fundamental function, to provide, free of charge, legal aid and advice on all matters to people who cannot afford to hire the services of a private legal defense.
Ecuador has gone from a rule of law to a constitutional rule of law and justice, where fundamental rights are the very end to be pursued by justice. For this reason, the authorities are obligated to directly execute and apply human rights enshrined in the Constitution, in the same way, judges are obligated to carry out a diffuse control of constitutionality. The Constitutional Court of Ecuador (Corte Constitucional del Ecuador) is in charge of constitutional control, interpretation and administration of justice in this matter.
The innovation in the justice system and the declaration of the State as plurinational, contemplates the recognition of indigenous justice, as well as the protection of the environmental rights, constitutional guarantees such as extraordinary protection petition; among other legal figures that innovate with the development and demand of the fundamental rights required by international treaties.
In the 2008 Constitution, the main governing vector for justice was the effective judicial protection, included in Article 75, which establishes access to justice for everyone, that due process is guaranteed, that a sentence is issued and that it is fulfilled. All this is the responsibility of the State, which cannot be repealed, on the contrary, it is evolving every time with the search for the effectiveness of people’s rights. This work is shared by those who make up the justice branch: judges, prosecutors, private lawyers and public defenders, who must respect the norm as an icon of legal stability that will determine who is or is not right in their claim.
Thus, article 191 of the Constitution of the Republic mentions free legal aid, which is configured as a public service mechanism aimed at making people’s rights effective.
4.2. Legislative framework for legal aid
The right to legal aid is implicit in the right to due process that is established in article 76, letter ‘e’, of the Constitution of the Republic. In the same way, letter ‘g’ establishes that no person shall be restricted from accessing or communicating with their private lawyer or public defender.
In this way, it is evident that in Ecuador there is, in every procedure, the right to legal aid supported by a private lawyer or by a public defender in all matters.
Legal aid is also established in the Code of Criminal Procedure (Código de Procedimiento Penal). Article 12 stablishes the right of the defendant to appoint a lawyer and if he does not do so, the Guarantees Judge will appoint one ex officio. However, the Guarantees Judge can also authorize the defendant’s to represent himself, in which case, the role of the public defender is to control the effectiveness of the technical defense.
In article 71 of the aforementioned norm, the need for the presence of a defense lawyer when one is questioned is established, even if it the questioning is carried out for investigative purposes. In the event that the person questioned does not have a private defender, a public defender will be appointed.
In this same context, article 323 of the COFJ expresses the fundamental right that every person must be assisted by a defender of their free choice.
4.3. Institutional framework for legal aid
The Council of the Judiciary (Consejo de la Judicatura) is the governing body in charge of the administration, surveillance and discipline of the Judicial Branch. Its vision is to guarantee access to justice and effective, impartial and expeditious protection of rights with efficiency, integrity and transparency, ensuring due process and legal stability.
The use of the services provided by the Public Defender’s Office (Defensoría Pública) left a satisfaction of 5.91 points at the national level; 5.81 in urban areas and 6.34 in rural areas. The average rating value came from the attention provided by public servants in terms of friendliness, agility of response and professional capacity.
In 2018, the average rating in terms of trust in the Public Defender’s Office reached: 5.79 points at the national level, 5.73 in urban areas and 5.97 points in rural areas. Respondents rated from 0 to 10, where 0 means “totally dissatisfied” and 10 means “totally satisfied”.[1]
4.4. Legal aid providers
Free legal aid by constitutional mandate is provided by the Public Defender’s Office of Ecuador (Defensoría Pública del Ecuador), through its public defenders (defensores públicos) or advisory staff (personal de asesorías). The Public Defender’s Office is not represented in all provinces for economic reasons. However, regional distributions of public defenders guarantee advisory and sponsorship services throughout the national territory. The necessary requirements to practice as a public defender are contained in article 57 of the COFJ.
In articles 58 to 79 of the Organic Code of the Judicial Function (Código Orgánico de la Función Judicial), the requirements for entering the Judicial Function are established in a general way and in particular to the Public Defender’s Office.
The Public Defender is a Civil Servant who has a remuneration scale corresponding to category 10, therefore, he earns USD 2,308.00 (two thousand three hundred eight dollars of the United States of America) monthly.
There is no government interference in the definition of legal course of action provided by the Public Defender, as indicated in article 285 of the Organic Law of the Judicial Function, which establishes the legal nature of the Public Defender’s Office as an autonomous body (economic, financial and administrative autonomy) within the Judicial Branch. Article 191 of the Constitution of the Republic establishes the same.
The Public Defender’s Office is not free to take legal action against the government or against large corporations. Likewise, there is no law that protects its independence, since its recognition is based solely on the rights established in the aforementioned legal bodies.
On the other hand, there are no precedents analyzing the performance of the legal advisory service that the Public Defender’s Office has been developing. However, in Ecuador the principle of independence exists for all State institutions, therefore there has been no interference with respect to this service.
4.5. Quality assurance
The Judicial Council (Consejo de la Judicatura) is the administrative body that regulates the three systems that make up the justice sector, the system of Judges (Jueces), Prosecutors (Fiscales) and Public Defenders (Defensores Públicos). Similarly, the legal system contemplates the principles of public services in the Organic Code of the Judicial Function (Código Orgánico de la Función Judicial), the Organic Law for the Optimization and Efficiency of Administrative Procedures (Ley Orgánica para la Optimización y Eficiencia de Trámites Administrativos), as well as the Ministerial Agreement called “Technical Norm of the qualification mechanisms of the service” (“Norma Técnica de los mecanismos de calificación del servicio”).
4.6. Criminal legal aid
4.6.1. Scope of criminal legal aid
In accordance with the provisions of article 191 of the Constitution of the Republic, as well as article 451 of the Comprehensive Organic Criminal Code, the Public Defender’s Office will ensure legal aid to people from the preliminary investigation until the end of the criminal procedure. In this sense, any person who is being investigated or detained for the submission of charges is immediately assigned a Public Defender free of charge.
If an individual is detained for the submission of charges and after the hearing no charges are filed or it is done by ordering non-custodial precautionary measures, the Public Defender ensures his right to defense and continues to provide both advice and assistance during the entire criminal procedure.
Regardless of the precautionary measure established, the Public Defender’s Office continues to assist in the case as long as the individual does not hire a private lawyer. There are no exclusion criteria in the defense of people accused or investigated for a crime.
In any hearing of criminal cases, people have the advice or assistance of the Public Defender’s Office. For this, two possibilities can be presented, the first is that the person already has the assistance of the Public Defender’s Office and in this way it continues throughout the process and in all hearings. The second is that the person has private assistance and for some reason this assistance can no longer be counted on or, failing that, the private technical defense does not appear at a hearing, in this case the Public Defender’s Office will assign a Public Defender to assist that individual during any hearing.
Assistance is provided throughout the criminal process, this includes the presentation of any legal resources established by law when the sentence does not meet the legal requirements to determine the existence of a crime or the culpability of the individual.
In the same sense, once the conviction has been executed, assistance is provided for people in the execution phase of the sentence. This service is provided in all provinces where there are prisons or detention centers.
For victims, the Public Defender’s Office guarantees the availability of legal aid at all stages of the process. This is regulated by Resolution No. DP-DPG-2014-043, of April 1, 2014 and its subsequent reform, which is contained in Resolution No. DP-DPG-CNG-2017-039, of March 13, 2017, in which the General Public Defender issued the Instructions for the Provision of the Victims’ Legal Defense Service by the Public Defender’s Office of Ecuador (Instructivo para la Prestación del Servicio de Defensa Jurídica de Víctimas por parte de la Defensoría Pública del Ecuador).
Currently, there is Resolution No. DP-DPG-DAJ-2018-038, dated May 8, 2018, which, in its pertinent part, resolves to issue the instructions to “Regulate the Victims Defense Service by the Public Defender’s Office of Ecuador ” (“Regular el Servicio De Defensa Jurídica De Víctimas Por Parte De La Defensoría Pública Del Ecuador”). Within the specified crimes, no exclusion is made by economic criteria of the victim.
Within the lines of service offered by the Public Defender’s Office, legal aid is not provided to witnesses. However, legal aid services are available to the entire population without any type of eligibility criteria.
4.6.2. Eligibility criteria for criminal legal aid
Regarding the internal resolutions that the Public Defender’s Office has for the provision of services, no eligibility or exclusion criteria are established, the only legal impediment to providing legal aid is the one established by the Organic Code of the Judicial Function in its Article 286 numerals 1 and 3, which specify that the Public Defender’s Office will provide timely and free legal aid, in all stages of the criminal process, to people who do not have it due to their economic and social situation.
The only restriction to provide the criminal defense service is that the person already has a private lawyer.
4.6.3. Process for obtaining criminal legal aid
In the preliminary investigation phase, assistance is provided whenever the individual makes contact with the Public Defender’s Office in the different offices nationwide. The authorization of the individual is required, within the preliminary investigation, therefore, it is necessary to have the signature of a document of acceptance of the legal aid service to be provided.
If an individual is arrested in flagrante delicto or for investigative purposes and subsequent hearing to submit charges, if the charges are not submitted and the cause does not exceed the preliminary investigation stage, the Public Defender’s Office ensures the legal aid for the individual from the moment in which contact is made prior to the audience. Additionally, all the individual’s contact information is received. Likewise, the assistance authorization is signed for the provision of the service in the stage in which the cause is found.
In cases where the individual is detained prior to the hearing, it is his/her right, and the Public Defender’s Office ensures it, to previously interview the designated defender for the preparation of the defense.
In the case of individuals deprived of liberty, the Public Defender’s Office provides legal aid services inside the detention centers to this priority care group so that they can access this service at any time.
If charges are filed against an individual, whether for an arrest in flagrante delicto or not, and alternative measures to preventive detention are stablished in the case, assistance will continue to be provided to the individual throughout the process. If the hearing was held with a private lawyer and the person does not wish to continue with said lawyer, the Public Defender’s Office will assign that individual a Public Defender as long as he/she requests it and signs the legal aid authorization, otherwise he/she will appear at the hearings ex officio.
Another way to access the Public Defender’s service is by ex officio provision of the Prosecutor’s Office, by which the need to defend a person deprived of liberty is established so that they can be interviewed and the respective legal aid is initiated, which is offered during all the stages of the criminal process.
The criminal investigation is not suspended due to lack of criminal legal aid, since the Public Defender provides it in the absence of private legal aid services.
In every procedure in which rights and obligations are determined, due process is ensured. In this sense, if the evidence obtained violates any constitutional right, it loses evidentiary validity (article 76, numeral 4 of the Constitution of the Republic). The same happens when any international human rights instrument is violated (Article 454, numeral 6 of the Constitution of the Republic).
The Public Defender’s Office is in charge of providing assistance from the preliminary investigation and throughout the criminal procedure. If the case is already in the trial stage and the accused has been assisted by a public defender, it will remain so during the remaining procedural stages. If the accused had a private lawyer and no longer wishes to have him in the same way by legal provision, the Public Defender’s Office must represent the accused during the court hearing.
The other possibility that may arise is that the private attorney does not appear at the hearing. In this case, the Judges of the court will order that an ex officio Public Defender be called to the hearing. In these cases, the hearing is held on the day and time convened with the presence of the Public Defender. The court grants time for the Public Defender to meet with the defendant, but many times the time granted is not enough for the review of the Prosecutor’s file.
Under no circumstances is legal aid denied, which is a constitutional right and guarantees assistance at any stage or degree of a procedure (article 76, numeral 7, letter ‘a’ of the Constitution of the Republic).
The assignment of a specific Public Defender depends on the current workload in order to guarantee a technical defense. However, if the person does not consider it appropriate, he/she[2] has the right to choose another professional, be it public or private (Article 451, third paragraph of the COIP). This right is guaranteed in the legal norm of the country (article 286, number 7 of the COFJ).
During 2019, a total of 127,244 requests for assistance in criminal matters were attended. Almost a third of them (28.5%) were for offenses related to domestic violence or a member of the family group; 17.0% were for infractions related to property rights, and 14.5% for traffic offenses.
Table 1. Number of sponsorships in criminal matters by type of offense (January – December 2019)
Type of Infraction | Quantity | % |
Crimes and midemeanors of violence against women or members of the family group | 36.320 | 28,5% |
Crimes and midemeanors against property | 21.616 | 17,0% |
Trafic Crimes and midemeanors | 18.434 | 14,5% |
Drug related crimes | 9.186 | 7,2% |
Sex Crimes | 4.820 | 3,8% |
Crimes against the Public Adminstration | 4.047 | 3,2% |
Crimes against personal integrity | 3.169 | 2,5% |
Crimes against the inviolability of life | 2.855 | 2,2% |
Crimes against public safety | 2.223 | 1,7% |
Others | 24.574 | 19,3% |
TOTAL | 127.244 | 100,0% |
4.7. Civil legal aid
4.7.1. Scope of civil legal aid
Civil legal aid covers legal advice on all issues and subjects free of charge. Legal aid for representation before a court is available in all cases of civil matters.
Legal aid for representation before a Court is available in all cases and stages of the Civil procedure, appeals before the Provincial Court (Corte Provincial) and before the National Court of Justice (Corte Nacional de Justicia).
4.7.2. Eligibility criteria for civil legal aid
In accordance to Resolution No. DP-DPG-DAJ-2019-062, in its article 5, numeral 5.1, letter ‘b’, civil legal aid is provided in the matters contained in Book I of the Civil Code, and only in cases related to children and adolescents, people with special abilities or the elderly, when it is necessary to protect the rights of these priority attention groups.
Regarding the matters contained in Book II of the aforementioned regulation, attention is given only to matters related to rural lands or lots of land located in marginal neighborhoods. Regarding tenancy, attention is provided exclusively to tenants in the case of real estate for housing. This care is financed by the state so, for the user, it is totally free, it being understood that the user should not return any value for any reason to the person who provided the service.
4.7.3. Process for obtaining civil legal aid
The process for obtaining civil legal advice begins when an individual approaches any of the points of attention that the Public Defender’s Office has at the national level, although, assistance can also be initiated when any public or private institution refers a case of a group of priority care. Such assistance begins as legal advice and is provided by a legal assistant (asistente legal).
The assistant evaluates the case presented by the citizen and, if pertinent, refers it to a Public Defender to sponsor it. Under no circumstances is legal aid denied to an individual.
The assignment of a Public Defender is carried out depending on the matter in which legal aid is required, in such a way as to provide expert advice to the citizen. This is particularly possible in the cities of Quito and Guayaquil, where there are specialized Public Defenders in various matters. However, in other parts of the national territory there are multi-competent Public Defenders. In these cases the assignment of a Public Defender is random or depends on the workload of the public defenders and the assignment of the defender depends on the immediate boss.
During 2019, a total of 105,535 requests in non-criminal matters were attended. Approximately 9 out of 10 assistances were given in the family, childhood and adolescence service line. The other assistances has been given mainly to labor and human mobility issues.
Chart 2. Number of assistances in non-criminal matters per service line (January – December 2019)
Service Line | Number | % |
Family, childhood and adolescence | 93.652 | 88,7% |
Labor | 6.607 | 6,3% |
Human Mobility | 2.398 | 2,3% |
Civil | 1.910 | 1,8% |
Constitutional | 437 | 0,4% |
Administrative Procedures | 434 | 0,4% |
Tenancy | 80 | 0,1% |
Other | 17 | 0,0% |
TOTAL | 105.535 | 100,0% |
4.8 Holistic legal services
In Ecuador there are multidisciplinary teams, made up of lawyers, accountants, engineers in various branches, interpreters in various languages, with many years of experience in professional practice. These provide professional services in many aspects of life: personal, family and social, which generates an avant-garde style with personalized attention based on a local peculiarities but understanding globalization as an opportunity to continue building new conjunctural social networks with principles and values, in conflict prevention and management, which allows achieving the objectives of its clients.
The inter-institutional agreements that are made between various sectors of the Executive, Legislative, Judicial, Electoral, Transparency and Social Control sectors, the Attorney General’s Office (Procuraduría General del Estado), the Constitutional Court (Corte Constitucional); entities that make up the decentralized autonomous regime and special regimes; public companies; the entities that are in charge of social security; the entities that comprise the public financial sector cover a series of situations that start from a common point, which seek the solution to a conflict through which a citizen or family is passing, in order to provide an immediate and satisfactory solution in all the activities and needs that have been detected.
An example of this type of assistance has to do with the Technical Secretariat “Plan Toda Una Vida” (The Whole Life Plan). In letter ‘f’ of article 7 of Decree number 11, it establishes the competence of “Identify, register and update the information of the beneficiaries of programs and projects established by the Inter-Institutional Committee of the ‘Whole Life Plan’, in the Social Registry, and will define the policies and guidelines for the selection and accompaniment of beneficiaries” and thus determine if they need medical attention, housing, legal advice and assistance, qualification of productive activity. Once the needs have been identified, they are derived so that within the framework of the competencies of each institution, the care that the case merits is provided.
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:
- 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.
- 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.
- 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…”