Ecuador

From Criminal Defense Wiki
Jump to: navigation, search
Globe3.png English  • español

Background

Ecuador is divided politically - administratively into seven regions, 24 provinces, 226 counties and 1,500 parishes, its capital is Quito. According to the National Statistics Institute Ecuador has a population of 14,306.876 inhabitants. In 2008 came into force the current Constitution after being approved in a referendum. The Constitution defines Ecuador as a social, democratic, sovereign, independent, unitary, intercultural, plurinational and secular state. The official language is Spanish, a rate of 5% of the population speaks native languages, and the main native language is Quechua. The predominant religion is Catholicism (95%), however the state is constitutionally secular. There is a separation of powers among the five branches of government: legislative, executive, judicial, electoral and social control.

Type of System

Law No. 360 dated 13 January 2000, by which the Criminal Procedure Code is issued, established the adversarial criminal system in Ecuador, the accusatory system which came into force on 13 July 2001.

The criminal justice system in Ecuador is based on the equality of two opposing parties, the defendant, represented by counsel; the prosecutor, who conduct the investigation and criminal prosecution. The process is carried out through public hearings.

Sources of Defendants' Rights

In Ecuador the procedural guarantees and the Defendants’ rights, are enshrined in Chapter 8, Articles 75 to 82 of the National Constitution dedicated to protection rights, . The Criminal Procedure Code (ROS 360 of 2000) refers to the fundamental principles in Articles 1 to15. In accordance to Article 11 paragraph 3 of the Constitution, the rights and guarantees set out in international treaties concerning human rights, have a direct and immediate application. In that sense,, the rights under the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, the American Convention on Human Rights, the Additional Protocol to the American Convention on Human Rights, and the Statute of the International Criminal Court, are also sources of protection of defendants’ rights and the procedural guarantees.

Defendants' Rights

Human dignity

The preamble and Article 10. 7 of the Constitution set out the right to human dignity. This right is inviolable and must be guaranteed to all persons deprived of the liberty. All actions should be in compliance with this right.

The due process rights

The due process includes a set of rights such as the presumption of innocence, the principle of legality, the right to defense, and the right to a fair and public trial without undue delay. Article 76 of the Constitution provides all guarantees of due process.

Right to liberty

The Ecuadorian Constitution provides this right in Articles 66 and 77 paragraph 1, states that the limitation of this right in criminal proceedings will be exceptional. The right to freedom expresses that it can only be restricted within the limits prescribed by law, people will only be apprehended in pursuance of a written and substantiated by competent authority, “in flagrante delicto” this commandment is not necessary.

Right to liberty

The Bolivian Constitution Article 23, states that this can only be restricted within the limits prescribed by law. No one shall be deprived of his liberty save in and in accordance with a procedure prescribed by law: it is necessary warrants duly issued by a competent judicial authority, in cases of flagrant warrants are not necessary.

Presumption of innocence

Article 76. 2 of the Constitution and Article 4 of the Code of Criminal Procedure establish the right of all defendants to be presumed innocent until proved guilty in a final judgment before a competent Court.

Legality of the sentence

Enshrined in Article 76. 3 of the Constitution, and Article 2 of the Code of Criminal Procedure, states that no one shall be convicted of an act that is not expressly declared by law as criminal offense. All subsequent laws, favorable to the defendant, should apply.

The right to defense

Established in Article 11 of the Code of Criminal Procedure and Article 76.7 of the Constitution, the right of defense is inviolable, every defendant has the right to participate with in a counsel all stages of the proceedings. The state must provide free legal assistance for defendants with limited resources.

Pre-Trial Phase

The preliminary stage of the criminal process consists of preliminary investigation and prosecutorial examining, during the investigation the prosecutor and the judicial police investigate alleged criminal facts. The maximum duration of the preliminary investigation is a maximum two years for offenses punishable by imprisonment. If there is sufficient evidence of the existence of the crime and the person's participation in it, the prosecutor will resolve the start of the prosecutorial examining, from that time the accused has the right to a counsel chosen or appointed ex officio. The maximum term for the prosecutorial examining is 90 days without extension, from the date of notification to the accused. The proceedings conducted after that period, have no value.


Court Procedures

The criminal process begins with the intermediate stage. This stage consists in a preliminary hearing which is held before a judge, the judge heard both parties and after examining their arguments he decides whether or not the accused for trial. At the conclusion of the hearing, the judge may issue a summons to trial or order of dismissal.

The Trial

Since the implementation of the adversarial criminal justice system in Ecuador, the trial phase is carried out through public hearings, based in a public competition between the prosecution and the defense, before to an impartial judge. The judge determines the guilt or innocence of the accused, after studying the evidence provided by the parties.

The trial stage is held publicly with oral proceedings, during which the parties present their evidence and defend their respective allegations before an impartial judge, who listen to the arguments and the examination and cross-examination of evidence, to determine guilt or innocence. The judge considers the evidence that has been presented to him, to determine whether or not the prosecutor has proven the defendant’s guilt beyond reasonable doubt. The judge must render an impartial verdict based upon the evidence adduced at the trial. The oral trial is held in accordance to the principles of immediacy, contradiction, and concentration.

Post-Conviction

Sentence

In Ecuador, the sentence must be substantiated, when the Court has the certainty of the existence of the crime and that the defendant’s responsibility in it, the judge will issue a convicting judgment. When there is no proof of the existence of the crime or the liability of the defendant, beyond a reasonable doubt the judge will render a judgment of acquittal.

Criminal penalties are divided into principal and accessory. The principal penalties are prison, disqualification and fine. Accessory penalties are disqualification and fine.

Among the accessory penalties are: the disqualification; the disqualification the deprivation of the right to operate motor vehicles, and the deprivation of the right to possess or carry firearms. These sanctions are imposed when they are substantially related to the crime. The fine is the payment of money to be fixed in days, since 10 days until 1000 days.

Appeal

The appeal can be requested by both parties, when the judge renders a judgment of acquittal or conviction. The appeal mechanisms are appeal, the motion to vacate, review, cassation and appeal on points of fact.

The appeal on points of fact shall be granted when the judge or court has rejected requests filed by the parties the other remedies. This action shall be brought before a judge or court which has refused the appeal within three days after notification of decision.

The motion to vacate proceeds in three cases: when the judge has acted without jurisdiction, when the sentence does not meet the legal requirements and, when the conduct of the proceedings had violated the procedure provided in the law.

The appeal must be filed within 3 days after the notification of the decision, must be submitted to the tribunal which sends it to a superior court. The superior court must issue a verdict within 15 days . The appeal of cassation is an exceptional appeal, which must be submitted to the Criminal Chamber of the Supreme Court. The Supreme Court has jurisdiction for upholding or annul rulings, in cases of serious error, incongruence or violation of guiding principles or procedural guarantees.

The petition for review may be submitted at any time after the court has issued a ruling by if new evidence demonstrates factual errors in the decision.