Committee on Enforced Disappearances considers initial report of Ecuador

GENEVA (9 March 2017) - The Committee on Enforced Disappearances today concluded its consideration of the initial report of Ecuador on its implementation of the provisions of the International Convention on the Protection of all Persons from Enforced Disappearance.
 
Andrés de la Vega, Deputy Minister Coordinator for Security, said that Ecuador had ratified the Convention on the Protection of all Persons from Enforced Disappearance   in 2009.  By doing so, the country had become one of the first 20 countries to ratify the Convention. Ecuador had suffered from painful episodes of enforced disappearances that had mainly occurred between 1984 and 1988.  Efforts had been made to make sure these cases would be investigated and that such crimes would never materialize again.
 
In the interactive dialogue which followed, Committee Experts inquired about the remaining 400 cases of disappearances that were still pending and asked how Ecuador could certify that there were no enforced disappearances among those cases.  They asked how Ecuador was effectively applying the provisions enshrined in the Convention in order to carry out preliminary inquiries or investigations to establish facts.  Experts asked the delegation to provide them with a firm confirmation that the crime of enforced disappearance could be applied to cases of enforced disappearances that may have commenced prior to the entry into force of its codification in national law but continued thereafter. They further inquired about the possibility to exercise universal jurisdiction if the offences with which a person was charged were not defined as crimes against humanity. 
 
In concluding remarks, Santiago Corcuera Cabezut, Committee Rapporteur for Ecuador, thanked the delegation for having answered the different questions that were raised and for taking part in this interactive dialogue. He noted that the Committee’s competence for receiving communications had been recognized by Ecuador although no one to date had seized this opportunity yet. 
 
Mr. de la Vega, in his concluding remarks, thanked the Committee for the excellent and cordial atmosphere in which the dialogue had taken place.  He noted that since the 1980s, when there had been a peak in murders, preserving life and protecting human rights had been at the heart of the State’s attitude and will.
 
The delegation of Ecuador included representatives of the Ministry of Justice, Human Right and Cults, the Ministry of the Interior, the Ministry of Foreign Affairs, the Judiciary Council, the Attorney General’s office, the Parliament and the Permanent Mission of Ecuador to the United Nations Office at Geneva.
 
The Committee will next meet in public at 3 p.m. today for a meeting with Member States, United Nations bodies, specialized agencies and Intergovernmental Organizations, national human rights institutions , and non-governmental organizations and civil society.
 
Report
 
The initial report of Ecuador can be read here CED/C/ECU/1  
 
Presentation of the Report
 
ANDRES DE LA VEGA, Deputy Minister Coordinator for Security, said that Ecuador had given a clear proof of its active commitment to human rights in the past by ratifying all the existing international conventions related to the protection and the promotion of human rights.  That political will had been confirmed in 2009, when Ecuador had ratified the Convention on the Protection of all Persons from Enforced Disappearance.  By doing so, the country became one of the first 20 countries to ratify the Convention. 
 
Mr. de la Vega recalled that the country had suffered from painful episodes of enforced disappearances, which had mainly occurred between 1984 and 1988.  Efforts had been made to make sure that that would never materialize again.  To that purpose, Ecuador had designed a roadmap with three main orientations aiming at the elimination of enforced disappearances.  First, in2007, Ecuador had set up the Commission on Truth as a mechanism charged with investigating and impeding impunity of crimes against human rights.  In 2010, this Commission had presented a report titled “No Justice without Truth” that had exposed the cases of 456 victims, among whom 17 had suffered from enforced disappearance.  In 2013, the Law on the Reparations of Victims and the Prosecution of Violations of Human Rights had been adopted. With that law, Ecuador recognized its responsibility in those violations opening the way to reparations and guarantees of non-repetition. 
 
In 2013, informed Mr. de la Vega, the first case of enforced disappearance “Vaca, Cajas, Jarrin” had been concluded after 25 years of impunity.  Ten members of the army and police had been prosecuted.  A hearing was to be given in April 2017. Another case known as “Gonzalez” or “Fybeca” related to an attack against a pharmacy in 2003, which included an extrajudicial execution of eight individuals and the enforced disappearance of four victims, was still pending in court.  The hearing where charges had been formulated had been taken place in June 2016, leading to the prosecution of 15 individuals, including a minister and a police general. Another important step was the criminalization of the specific crime of enforced disappearance in the domestic law of Ecuador.  Ecuador had also adopted and applied the concept of integral security based on the principle of respect of the human being.  That concept had been designed in order to guide the elaboration of any public policy by the State.  Finally, the legislative framework of Ecuador made a clear difference between regular disappearances and enforced disappearances.
 
Questions by Experts
 
RAINER HUHLE, Committee Member and Co-Rapporteur for Ecuador, took note that there had been a period of torment in which cases of enforced disappearances had occurred in Ecuador.  Documents issued by the Prosecutor’s office and the Ombudsman had revealed that there had been several thousands of enforced disappearances.  To date, 400 cases remained unresolved.  How could Ecuador guarantee that those cases did not involve crimes of enforced disappearance?  The Expert also asked whether Ecuador had established a database listing cases of disappearances and a database of identified human remains.
 
He also inquired about the case of disappearance of Molano Rios, which was still left open. What was the current nature of that trial, and was it a case of enforced disappearance? If not, what were the charges brought against the defendants?
 
International reports mentioned that Ecuador was a country suffering from the major issue of human trafficking.  Mr. Huhle asked the delegation to inform the Committee on how those cases were treated in order to determine if they fell under the definition of enforced disappearance and how they were prosecuted.
 
SANTIAGO CORCUERA CABEZUT, Committee Member and Co-Rapporteur for Ecuador, took note of the constitutional provisions in Ecuador which provided for direct applicability of international legal instruments.  He also noted with satisfaction that Ecuador had incorporated the specific offence of enforced disappearance in its Criminal Code, both as an individual crime and a crime against humanity.  However, he asked the delegation to give further details on the definition of the crime of enforced disappearances.

He also asked how Ecuador was effectively applying the provisions enshrined in article 10 of the Convention to carry out preliminary inquiries or investigations to establish facts.  Regarding extradition, the Co-Rapporteur asked the delegation to give further details on cooperation requests that had been made by partner countries of Ecuador.

The Expert also asked for clarifications on the consideration of the crime of enforced disappearance in the “Fybeca” case.  In 2003, when investigations had started, Ecuador had not yet codified the crime of enforced disappearance in its corpus of law.  The charges against perpetrators of the crime had then been defined as abduction and extrajudicial execution.  Considering the continuous nature of the offence of enforced disappearance, would it be possible to re-qualify the charges today?  Where there any other cases where the Convention had been invoked, be it for a lack of registering information on detainees or a case of non-compliance by an official to the provisions of the Convention?
 
Mr. Cabezut asked if the offence of enforced disappearance would fall into the definition of a crime against humanity in the case it was committed in an individualized manner instead of constituting a generalized offence against citizens.
 
He asked the delegation to provide details on the procedure that would lead police officers accused of a crime of enforced disappearance to be discharged of their functions.  Would those provisions apply to military forces and other state bodies that might have been involved in such a crime?
 
How would the relatives of the victim of an enforced disappearance participate in the investigations?
 
RAINER HUHLE, Committee Member and Co-Rapporteur for Ecuador, took due note that, to date, two cases of enforced disappearance had been examined by Ecuador’s judicial system.  They had been described in detail in the initial report, but what happened to the other cases?  What stage were they at?
 
The Co-Rapporteur asked the delegation to provide details on the structure that would be in charge of carrying forward investigations on enforced disappearances.  He also asked for details about any other existing units in the country, for example in the police services, that were specialized in the field of disappearances and missing persons. What type of training were those bodies receiving in the field of human rights?
 
Replies by the Delegation
 
The delegation said that Ecuador benefited from a police specialized unit for enforced disappearances that operated nationwide and was supported by the national police.  It possessed excellent specialized equipment and had superior human resources that allowed it to work efficiently.  Its personnel were selected through proficiency tests and enjoyed continued training and education provided by national instructors and instructors from abroad, notably United Nations representatives, on investigation methods, chain in custody or forensic science. Furthermore, all the information required by citizens on that specialized unit was available on a web page.
 
To date, 17,000 complaints for disappearances had been brought before that unit; 94 percent of them had been resolved.  The remaining six percent of the total number of cases was still under investigation.  During the investigations, searches systematically included the participation of the relatives of the victims.  They would provide police officers with documents, physical and background description on the disappeared.
 
Ecuador benefitted from a comprehensive policy that covered up for the social aspects related to crimes against human rights.  Relatives of the victims of disappearances were provided with protection mechanisms and there was a constant endeavour by the State to provide assistance to them.  Psychological assistance was provided to complainants and their relatives.  A task force was in place to offer follow-up to families as soon as a missing person was identified, notably in cases of human trafficking. However, to date, the investigations that had been carried out on human trafficking by the police had never identified a case of crime of enforced disappearance.
 
The delegation stated that an online information system had been set up to provide police units with the capacity to share information with other institutions.  There were squads in charge of tracing human remains. Citizens were granted with the guarantee to present petitions.  An existing register of genetic profiles could be used in the case of disappeared persons when judges asked for those profiles; in such cases, DNA samples could be given.
 
On the question of the protection of witnesses, the delegation noted that in 2014, an institution dedicated to the victims and witnesses of a crime who might be at risk during legal proceedings had been established with a two million dollar budget for the 2014-2017 period.  It was in charge of ensuring proper housing, medical assistance, counsel and legal protection to the victims.  To date, 734 individuals had received assistance; 76 direct victims had been assisted and 26 compensation agreements had been reached.
 
With regard to the “Molano Rios” case, the delegation said that reports and testimonies from citizens were still being reviewed by the investigators. Until now, Molano Rios was still considered as a disappeared person.
 
Regarding the 400 cases of disappearance that were still pending, the delegation informed the Committee that six percent of them were at the stage of preliminary inquiry.  To date, no elements could allow the delegation to determine if any of those were cases of enforced disappearance.
 
Regarding the “Fybeca” case, where concern had been raised on abduction and extrajudicial execution, the delegation explained that at the time the crime had been perpetrated, enforced disappearances and extrajudicial executions had not been criminalized under the law of Ecuador.  The term of murder was employed to qualify the death of eight individuals.  The case had been reopened twice as the law was evolving.  In 2008, the members of the police who had committed the crime had been accused as extrajudicial execution and sanctioned by prison.  A third case was now open for abduction under enforced disappearance.  The offence of enforced disappearance had been criminalized in Ecuador since 2014.  Since it was an ongoing crime, the statute of limitations did not apply.
 
Questions by Experts
 
An Expert asked the delegation to clarify the criteria used to determine if a crime would fall under the definition of enforced disappearance in situations of human trafficking.  When was there a split between the guidelines to follow during the investigations, how was it decided whether the crime was an enforced disappearance, a disappearance or a case of human trafficking?
 
Another Expert took note of the comprehensive Criminal Code of Ecuador that specifically criminalized enforced disappearances.  However, he asked the delegation to confirm to the Committee that prosecutions related to enforced disappearances would be applicable in an isolated case of enforced disappearance.  In the case that the crime might not be defined as a crime against humanity, would Ecuador use the concept on universal jurisdiction? 
 
Coming back to the “Fybeca” case, the Expert took note of the response given by the delegation and said that, in accordance with the continuous nature of the crime of enforced disappearance, the Prosecutor could argue that the perpetrators of the offence could be prosecuted for a new crime.
 
An Expert raised concern on a possible conflict of interests between the investigative work of the Prosecutor and other bodies intervening in cases of enforced disappearance.
 
Another Expert asked if Ecuador had a DNA database at its disposal listing unidentified bodies that could be cross-checked with the list of missing persons in the country.
 
Replies by the Delegation
 
Referring to the concerns of the Committee on a possible clash of interests between the different bodies implied in the investigations related to a crime of enforced disappearance, the delegation stressed that in Ecuador, the Prosecutor’s office was the body in charge of leading the investigations with the support of the police and its specialized units.  If the prosecutor believed that there could be a case of enforced disappearance, it would be the body in charge of leading the prosecution and giving the guidelines for the investigations.  Other structures including the police would only act as subsidiary bodies.  Thus, it was not possible that a conflict of interests could appear between the different services implied. 
 
The delegation confirmed to the Committee that the provisions of the Convention on the investigations, sanctions and obligations associated to the crime of enforced disappearance would be taken into account in the case where the offence had been committed in an isolated fashion and not as a crime against humanity.
 
The delegation said that a DNA database providing information on unidentified bodies existed in Ecuador.  It contained traces of 374 unidentified bodies, bones and human remains.  The Prosecutor’s office was allowed to ask to have access to it.  Information provided in the list of missing persons could be cross-checked with that DNA database.
 
On the question of whether universal jurisdiction would still be applicable in the case of an individual crime of enforced disappearance, the delegation confirmed that it was indeed applicable.
 
Questions by Experts
 
An Expert noted that in the legal framework of Ecuador, individuals willing to apply for asylum had to respect a legal deadline.  Would an application be rejected if it did not respect fully that time lapse even in the case a person could risk an enforced disappearance back home?  Another question was related to the situation of the applicants who still had their cases pending.  Could they circulate freely?
 
Regarding the requirement of registering persons deprived of their liberty, the Expert asked if Ecuador’s Criminal Code contained all the provisions and requirements of the Convention.  Were individuals deprived of liberty registered even if they were not detained for criminal reasons, for example persons in psychiatric centers?  Were there any provisions for the punishment of public servants who failed to make the registration correctly?  Had there ever been such cases in the past?
 
When a person was deprived of liberty, what measures could be taken at practical level to ensure that she could reach to a lawyer or communicate with her relatives?  After a release, what practical measures were provided to ensure that persons were delivered into the hands of a person of their trust? 
 
An Expert asked the delegation to provide details on the Judiciary Council training programme.  Was that programme different from those dispensed to other judicial branches, and did any similar trainings exist for the police?
 
The Expert also asked for information about the reparation measures for the victims of enforced disappearance.  What exactly had the victims received by way of reparation?  On what grounds could a demand for reparation be rejected?
 
He further asked if there was data on the number of victims found alive or dead. How many persons are still being searched, and what were the instruments used to search for persons?  How, and when could authorities decide to launch searches for cases defined as enforced disappearance?  On the particular case of Molano Rios, how had the decision to search for him been taken? How could the remains found be transmitted to families with dignity?
 
Regarding the participation of family members in investigations, an Expert noted that Ecuador had made significant progress.  However, he asked the delegation to provide details on whether there were associations for victims of enforced disappearances in the country.  The initial report of Ecuador mentioned that meetings with family members happened every six months. Were those meetings open to everyone?
 
On the principle of non-refoulement, the delegation was asked to give details on the proceedings that a person could follow in case he was expelled from a country by the police, but would claim a risk of enforced disappearance in his home country.  What means of protection could Ecuador guarantee for persons in that case? 
 
Regarding the right to truth, an Expert noted that Ecuador had sought international cooperation in genetic check and forensic medicine.  Could the delegation give further details about the structures that existed in Ecuador in that domain?
 
Furthermore, the Expert asked the delegation to provide information on the procedure victims and their relatives had to follow in order to access State intelligence documentation in relation with enforced disappearances.
 
Replies by the Delegation
 
The delegation stated that Ecuador was the country in Latin America with the highest number of refugees.  It did not have refugee camps on its territory and no refugees were held in detention.  There was no legal possibility to have a refugee held in detention pending the application for asylum.  The delegation noted that in February 2016, a new mobility law had been adopted in order to better preserve the right of persons in mobility.  In practice, there was flexibility in the consideration of the deadline to apply for the status of asylum. There could indeed be a late presentation of the application, especially in cases when there would be a risk of enforced disappearance in the applicant’s home country.
 
With regard to the principle of non-refoulement, the delegation ensured that it was fully applied in Ecuador. The country’s authorities were working closely with the United Nations High Commissioner for Refugees to ensure that that principle was respected specifically at border check points and in airports.
 
On the concerns raised by the Committee vis-à-vis reparations, social rehabilitation and access to information on detainees, the delegation mentioned that a new computerized system for social rehabilitation containing all the available data on detainees had been created in 2016. It was tied in directly to the national registry, and provided for exhaustive information such as the date of arrest, the stage of the proceedings, the terms of the sentence and the date and hour of releases or transfers.  An obligatory training for prison personnel on that new system had been set up.  The delegation further noted that no one could have access to centres of deprivation of liberty unless they had an authorization delivered by a competent judge.
 
An integral healthcare model had been designed and codified in the Criminal Code in order to provide for mandatory health examination before entering a detention centre.

Furthermore, each centre had the obligation to notify the relatives of the victims by phone, and embassies had to be notified in the case of a foreign detainee.  Anyone was provided with the right to challenge the decision to be transferred to another centre of deprivation of liberty.

The system of rehabilitation in Ecuador provided that people deprived of liberty could receive a visit once a week.  A standardized visit protocol had been established to provide for sufficient security guarantees.  Detainees were provided with access to lawyer and their relatives in safe areas.  The public defender’s office was also entitled to guarantee full and equal access to justice for all individuals in vulnerable conditions who could not pay for their defence.  The Criminal Code provided that competent judges had the obligation to carry out, once a month, visits to centres of depravation of liberty in order to prevent or remedy irregularities.
 
The delegation informed that, in Ecuador, victims of enforced disappearances and their relatives could have access to reparation and rehabilitation programmes through the Ombudsman’s office.  They were provided with psychological rehabilitation and social care.  Another form of reparation currently foreseen by the law was the future creation of a museum for the victims of cases of disappearance that had been documented by the Truth Commission. Since 2013, a draft law on the Ombudsman was being reviewed to change the legislation in order to put it in line with the Constitution.  It would be provided with a new instrument to prevent offences against human rights in detention centres.  A new protocol had already been adopted to ensure that the Ombudsman regularly visited detention centres and checked the conditions of detention with the aim to prevent cases of torture and degrading treatments.  The delegation noted that since 2013, 100 cases of regular disappearances had been dealt with.
 
Regarding training, 9it was stated that 96 percent of police officers had been trained on human rights between 2010 and 2015, through a specific programme led by 95 instructors.  Following that programme, Ecuadorian trainers of trainers intervened in Peru and Chili to deliver training to senior police officers. Personnel in detention centres were also provided with such trainings through their courses in penitentiary academies.  In 2016, 223 individuals had graduated from those academies, and 76 persons were enrolled for the second semester of 2017.
 
With regard to the question of the existing associations for family members of victims of enforced disappearances, the delegation noted that there were already several ones existing in Ecuador.
 
On the right to truth, the delegation stated that there was a legal framework to follow in order to declassify documents; 200 documents had already been declassified during the activities of the Truth Commission. 
Questions by Experts
 
An Expert expressed concern that the principle of non-refoulement might not be fully respected in Ecuador.  Indeed, the Committee against Torture had indicated cases of abuse in that area.  Furthermore, the legislative framework of Ecuador provided that an asylum applicant could be turned down if he was considered as a threat.  The Committee feared that such a measure could be used abusively. What procedures were applied to assess the risk that someone could run a risk of enforced disappearance in case of return or refoulement?
 
The Experts asked for further clarifications and details on how reparations were delivered to victims and their relatives.  How were the agreements reached between the State and the victims on reparations, and were the victims fully associated to the design of reparations?
 
Replies by the Delegation
 
On communications on the status of detainees, the delegation said that the Criminal Code referred to penitentiary guarantees that would cover the case of releases.  Police units and competent judges had to verify that a released person would not be left into the hands of an unknown person.  Furthermore, victims of disappearances and their relatives were fully associated to the creation of the museum of memory.
 
Coming back to the question of training, the delegation said that, in addition to the ongoing training for police and those working in civilian security, cross-cutting resources were used to make sure citizens were aware of their rights.
 
With regard to forensic medical capacity, the delegation said that there was a decentralized system managed by the Prosecutor’s office and as foreseen by the Constitution.  Eight forensic medicine centres existed at regional level and two other at national level;  two professional anthropologists regularly worked with police units.
 
Concerning the question of reparation, family members were systematically identified by the Ombudsman who provided for holistic reparations, be they moral or material.  A negotiation committee was established for each case, including victims and family members who could negotiate on the design of reparations. 
 
Concluding Remarks
 
SANTIAGO CORCUERA CABEZUT, Committee Member and Co-Rapporteur for Ecuador, thanked the delegation for having answered different questions raised and for taking part in the interactive dialogue.  The Committee’s competence for receiving communications had been recognized, although no one to date had yet seized that opportunity.  He took note that Ecuador did not apply the statute of limitations in the case of enforced disappearances, which was a safeguard against impunity.  Efforts were still needed in order to efficiently put into practice the provisions of the Convention.  He took note that the members of the delegation would send more detailed answers to the Committee in the next 48 hours.
 
ANDRES DE LA VEGA, Deputy Minister Coordinator for Security, thanked the Committee for the excellent and cordial atmosphere in which the dialogue had taken place.  He recalled that Ecuador was decisively taking the path of development in all areas including the area of human rights. It had achieved a great level of development and experienced a decrease in poverty.  He outlined that since the 1980s, when there had been a peak in murders, preserving life and protecting human rights had been at the heart of the State’s attitude and will.  New instruments and institutions had been created in order to address the issue of enforced disappearance, but they still needed to mature and improve their work over time.

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