Ecuador – Whistleblowing Protection

a. Legislation

i. What is the existing legislative regime in force?

The protection of whistle-blowers is most prevalent in the realm of anti-corruption in Ecuador. Articles 204 to 206 of the Ecuadorian Constitution established the Transparency and Social Control Branch (administrative branch of the judicial power), which is meant to prevent and combat corruption in the public and private sectors. Article 208 of the Constitution establishes the Council for Public Participation and Social Control (CPCCS) to foster public participation in the fight against corruption, establish mechanisms for public sector accountability, investigate reports of corruption, issue reports to be used in legal proceedings, protect whistleblowers (Article 208 (7)), and designate the principle authority of the Office of the State Prosecutor.

Executive Decree No. 1511 (2008) established the National Secretariat of Management Transparency (SNTG), which is meant to prevent, combat and investigate denunciations of corruption within the executive branch and reports its findings to the CPCCS.

The Organic Law of Public Servants (2010) governs the Ecuadorian public service sector and contains provisions for the protection of whistle-blowers. In addition, the Ecuadorian Constitution contains provisions pertaining to the protection of personal integrity, victims of criminal offenses, all other victims, and witness, as well as other participants in the judicial process. The Law of the Public Ministry provides similar provisions.

The Ecuadorian Constitution has been recently amended and contains provisions that call for systems to protect victims, witnesses and participants in proceedings to be established. None the less, it is the responsibility of the Attorney General’s Office to direct the system for the protection and assistance of victims, witness participants in criminal proceedings and to coordinate with other relevant governmental and civil society bodies.

Ecuador is a signatory to the Inter-American Convention against Corruption as of March 29, 1997, and the convention went into force for the country in September 2005. The Convention specifically envisages a system for protecting whistle-blowers in accordance with the state’s Constitution and the basic principles of domestic legal systems. The CPCC has the authority to investigate and report instances of alleged bribery and is required to prepare and present initial legislation which may include foreign bribery issues but has not done so.

1. Which Acts/codes directly apply to the area?

Constitution

Article 78
The victims of criminal offenses shall benefit from special protection; guarantees shall be provided to them for preventing their re-victimization, especially in obtaining and assessing the evidence; and they shall be protected against any threat or other forms of intimidation. Mechanisms shall be adopted for integral reparation, which shall include, without delay, knowledge about the truth of the facts and restitution, compensation, rehabilitation, guarantee of non-repetition, and satisfaction with respect to the infringed rights.

A system for the protection of and assistance to victims, witnesses, and participants in a proceeding shall be established.

Article 195
The Attorney-General’s Office shall conduct, by virtue of its office or at the request of a party, pre-trial inquiries and criminal proceedings; during the proceedings it shall exercise public action subject to the principles of timeliness and minimum criminal intervention, with special attention focused on the general welfare and on the rights of the victims. If the case is found to have merits, the Attorney-General shall formally charge the alleged offenders before a competent judge and shall promote indictment when substantiating the criminal trial.

To perform his/her duties, the Attorney-General shall organize and direct a comprehensive specialized system for inquiry, forensic, medicine and medical examination, which shall include civil and police investigation staff; shall direct the system for the protection and assistance of victims, witnesses participants in criminal proceedings; and shall perform the other duties provided for by law.

Article 198
The Attorney-General’s Office shall direct the national system for the protection and assistance of victims, witnesses and other participants in the criminal proceedings, for which it shall coordinate the mandatory participation of public institutions related to the system’s interests and objectives and shall articulate the participation of civil society organizations.

The system shall be governed by the principles of accessibility, responsibility, complementariness, timeliness, effectiveness, and efficiency.

Ley Orgánica del Ministerio Público, Codificación

Chapter VII‚ Assistance Units

Artículo 34
Crease bajo la dirección y coordinación de la Fiscalía General, el programa de protección a testigos, víctimas y demás participantes en el proceso, y funcionarios de la Fiscalía, mediante el cual se le otorgará protección y asistencia, a dichas personas, su cónyuge o conviviente en unión de hecho y parientes hasta el cuarto grado de consanguinidad y segundo de afinidad, cuando se encuentren en riesgo sus vidas o integridad personales, por causa o con ocasión de la intervención en procesos penales.

CONCORD
Código de Procedimiento Penal:

Artículo 118
Interrogatorio del Juez.
De inmediato el Juez preguntará al testigo lo que creyere pertinente sobre las circunstancias de la infracción, disponiendo que responda de manera concreta y precisa.

Created under the direction and coordination of the Attorney General, the program for the protection of witnesses, victims and other participants in the process, and officials of the Prosecutor’s Office, through which one will be granted protection and assistance, their spouse or cohabitant in union, and relatives within the‚ fourth degree of consanguinity and second degree of affinity, when their lives or personal integrity are at risk as a result or on the occasion of an investigation in the penal process.

Immediately the judge will question the witness what he/she believes to be relevant to the circumstances of the infraction, for answers in a concrete and precise manner.

Organic Law of Public Servants (2010)

Artículo 23
Derechos de las servidoras y los servidores públicos – Son derechos irrenunciables de las servidoras y servidores públicos:
(k) Gozar de las protecciones y garantías en los casos en que la servidora o el servidor denuncie, en forma motivada, el incumplimiento de la ley, así como la comisión de actos de corrupción;

Article 23
Rights of public servants – Irrevocable rights of public servants:
(k) Granting protection and guarantees in cases in which the [public] servant, based on evidence, denounces a violation of the law, as well as the commission of corrupt acts.

Ley de la Comisión de Control Cívico de la Corrupción

Title II Attributes and Faculties of the Entire Commission

Article 7‚ The CPCC will have the following attributes:
(e) Otorgar a las personas que espontáneamente colaboren con la Comisión en el esclarecimiento de los hechos, protección legal para su seguridad personal, a través de las autoridades pertinentes;
(e) Give those persons who spontaneously collaborate with the Commission in the clarification of the facts, legal protection for their personal security, through the relevant authorities.

2. Which other Acts/code indirectly apply to the area (i.e. are there relevant civil or criminal procedure provisions which could affect rights / duties under principal Acts (those which directly apply)?

CONSTITUTION

Chapter 5‚ Transparency and Social Control Branch of Government, Section 1‚ Nature and Duties, Article 204‚ 206; Section 2 Council for Public Participation and Social Control, Article 207‚ 210.

Chapter 1‚ Basic Principles, Article 3 (8)‚ State’s primary duties: guarantee every citizen’s right to life free of corruption.

Chapter 9‚ Responsibilities, Article 83. Ecuadorians have the following duties and obligations, without detriment to others provided for by the Constitution or by law:

Chapter 8, To administer public assets with honesty and in the true compliance with the law and to report and combat acts of corruption.

Chapter 7‚ Public Administration, Section 3‚ Public Servants, Article 233: outlaw corruption in the public sector.

Organic Law of Public Servants (2010)

Article 48‚ any public sector employee found guilty of corrupt practices will be dismissed.

Inter-American Convention against Corruption

Article III‚ Preventive Measures, For the purposes set forth in Article II of this Convention, the States Parties agree to consider the applicability of measures within their own institutional systems to create, maintain and strengthen:

8. Systems for protecting public servants and private citizens who, in good faith, report acts of corruption, including protection of their identities, in accordance with their Constitutions and the basic principles of their domestic legal systems.

Ecuador is a signatory to the Inter-American Convention against Corruption as of March 29, 1997, and the convention went into force for the country in September 2005. The Convention specifically envisages a system for protecting whistle-blowers in accordance with the state’s Constitution and the basic principles of domestic legal systems. The CPCC has the authority to investigate and report instances of alleged bribery and is required to prepare and present initial legislation which may include foreign bribery issues but has not done so. Article 7 of the Ley de la Comisión de Control Cívico de la Corrupción establishes the functions, attributes and procedures for the CPCC and contains a provision for the legal protection of those who participate in investigations (see above).

Ley de la Comisión de Control Cívico de la Corrupción

Title III Obligations and Privileges

Article 8, Obligations, All members and officials of the CPCC have the following obligations and prohibitions:

(b) Guardar absoluta reserva sobre todas las investigaciones que realicen, así como de toda información que llegue a su conocimiento en forma directa o indirecta como producto de su trabajo en la Comisión, hasta que se concluyan las investigaciones y se emita el correspondiente informe. Esta obligación, así como la prevista en el literal anterior, se hace extensiva también a todos los funcionarios, empleados y trabajadores de la Comisión de Control Cívico de la Corrupción, que serán destituidos en caso de incumplimiento;

(b) To keep absolute secrecy concerning all of the investigations, as well as all of the information that it becomes aware of directly or indirectly as a product of its work in the Commission, until the investigation has concluded and a report has been issued. This obligation as well as envisaged in the previous subsection, extends to all officials, employees and workers of the Commission of Civil Control of Corruption, and will be removed in a case of noncompliance.

3. How is the division of power set out? Is the Relevant Jurisdiction federalized?

Ecuador is a civil law country, with an executive branch headed by the president, a legislative branch with power seated in the government and Congress. Ecuador has a unicameral National Congress with 100 members that are elected by popular vote by provinces.

The judiciary is independent from the other two branches. After the Constitution was amended in 2008, the judiciary was restructured and now has a judicial and administrative head. The Constitutional Court rules over cases involving violations of constitutional rights, it is the only judicial body with this power. The National Court of Justice has jurisdiction in all the State’s territory. It is located in Quito and acts as a Court of Cassation through specialized chambers, according to Law. Provincial Courts have jurisdiction over the territory of each province and the National Court will create provincial courts as needed. The National Council of the Judicature is an administrative and disciplinary body of the Judiciary. The Public Defendants Office is an independent body of the Judicial Branch responsible for providing legal assistance to those who may not afford the services of a private lawyer, in order to protect the right to a fair trial. The State Attorney´s Office is an independent body that investigates criminal accusations.

4. Does each Act apply to all citizens of that country?

See the language of each act or provision above, each specifies whether the provision applies to all citizens or only specific persons ‚ victims, etc., or public servants.

ii. Which are the operative provisions (i.e. those provisions that give rise to a cause of action or a criminal sanction)? NB: For this question, please ensure regulations, directives, or any other executive or legislative instrument is included in the response. In the response, each of the operative provisions, as well as any references to definitions of key terms should be included.

iii. What is the history of the legislative regime, has it been recently amended?

The Constitution was amended in 2008.

1. If so, how was it amended?

See above for relevant bodies that were established to fight corruption and to protect witnesses, whistle-blowers, etc.

2. What is the reform attempting to cure?

Rampant corruption and inequities in the Ecuadorian government.

iv. Are there currently any proposals to reform the legislative regime?

Not in the realm of law related to whistle-blowers.

1. If so, what are the proposed reforms and what at what stage are they?

NA

c. Parliamentary / Government enquiries and Enforcement Institutions / Bodies that undertake these investigations

For each Relevant Area:

i. Have there been any recent (during the last 10 years) parliamentary or governmental enquiries?

No.

In the Correa government, the first Minister of the Economy, Ricardo Patino, was caught on film by a close advisor of his discussing external debt strategy details with private sector bond traders in a hotel room. There are accusations that this was the new government’s first corruption deal with Venezuelan banks and insurance companies. The Attorney General’s Office never investigated this scandal. The advisor who went public with this information was persecuted, jailed, fired from his job and has kept quiet ever since.

ii. Who were the key players of that / each enquiry?

NA

iii. If yes, what was the scope of each parliamentary or governmental enquiry?

NA

iv. If yes, what were the recommendations?

NA

v. Who is the main regulatory body of the Relevant Area?

The Consejo de Participación Ciudadana y Control Social (CPCCS ‚ Council for Public Participation and Social Control) was established as an autonomous and independent‚ entity of the government and that is a part of the function de Transparencia y Control Social (Transparency and Social Control Branch). Its primary function is mainly to promote the exercise of the right of civil society to control and to participate in politics in response to the state’s guarantee of a society free of corruption. The CPCCS is charged with accepting and investigating information around corrupt acts or acts that are contrary to society’s interest to build a culture of transparency. The CPCCS also monitors public servants with a focus on preventative measures.

President Marcela Miranda was appointed on March 25, 2010, along with Fernando Cedano as Vice President and seven other council members. The Council is currently working to establish its policies and procedures under its mandate.

The website guarantees the protection of whistle-blowers. Whistle-blowers are allowed to leave their complaint orally or in their mother language and provide interpreters, if necessary.

The CPCCS reports its investigations to the Attorney General’s Office and is meant to report to relevant international treaty bodies.

1. Are they well funded?

In December 14, 2010 news report the CPCCS was assigned $8.6 million for 2011, and the remaining $10 million was not guaranteed. Funds are to be dispersed quarterly. The first disbursement was for appointing secretariats, and between USD$700.000 and USD$800.00 will go toward the activities of the Secretary of Transparency, and USD$1,500.000 toward the promotion of and participation in the project.1

According to a La Hora news report from May 14, 2010, the commission asked for $19,534,455.69, and could receive up to $25,503,455.69. This amount would cover information, dissemination, communications logistics, and furniture for a new building, etc.2

According to a La Hora news report from April 19, 2010, the CPCCS completed its final meeting to establish the functions of the organization, which created 27 internal departments and appointed various secretariats. The commission planned to submit an application for greater funding from the state and negotiated for more than almost $6 million than it was awarded initially in the state’s annual budget.3

According to a La Hora news report on June 3, 2010, the CPCCS was planning to spend $100,000 for the whole socialization process of the participation projects, of this amount, $42,000 was earmarked for the specific design of policy and mechanisms for citizen participation in the country and abroad. The President was quoted as saying if the commission did not receive the minimum conditions necessary to carry out its work it will not be able to work with the efficiency that is required in the country.4

2. What is the scope of their regulatory activity?

The CPCCS has a broad mandate to draft and propose anti-corruption legislation, conduct investigations and coordinate with all other relevant government bodies, as well as promote participation from citizens at all levels of public policy.

3. What is their track record?

The CPCCS is a very new entity; however, in 1997 the Comisión Cívica de Control de la Corrupción (Civic Commission for Corruption Control) was created and was composed of various civil society organizations to investigation corruption by private and public entities but did not have a legal basis to prosecute. When President Correa came into power the group members were thought to be highly politicized and dissolved shortly thereafter. This commission was ineffective as it relied heavily on local citizen groups and NGOs to conduct its work, which often lacked expertise and the ability to follow through in the long-term.

d. Academic commentary

For each Relevant Area:

i. Who are the leading academics in each jurisdiction, what is their public and academic profile (please provide a short biography or a link to their CV etc.)?

Bruce Horowitz
Paz Horowitz Robalingo Garces
Calle del Establo y Calle E
Cumbaya, Edificio Site Center
Torre I, Oficina 301
Quito, Ecuador

Expert in anti-corrupt law, among other relevant parts.

ii. Are there any leading commentaries on either legislation, case law, parliamentary enquiries that should be noted from these academics?

iii. Do these commentaries support legislative or case law reform? If so, how?

e. Key Players

For each Relevant Area:

i. Which organizations are the leading think tanks / NFPs / activist groups that are either agitating for reform, publishing material or otherwise providing relevant commentary?

Human Rights Foundation (HRF) is a NYC based NGO that defends human rights globally and has expertise in the Americas. In October 2011, HRF published a report on the case of Emilio Palacio Urrutica and the state of freedom of expression in Ecuador, and the criminalization of speech directed at public officials. HRF submitted the report to the Second Criminal Chamber of Ecuador’s National Court of Justice for review concerning the appeal of the conviction of Palacio and three executives of the El Universo newspaper in Ecuador for publishing an opinion piece that was critical of President Correa and his government.

Global Integrity is a Washington, D.C. based NGO that publishes reports, etc concerning governments’ levels of transparency and corruption; a portion of these reports contain information on the country’s whistle-blower protections, laws and brief analysis.

ii. What is the apparent influence of the organisation? What are its institutional / commercial / public connections?

HRF researches and reports on prisoners of conscience and political prisoners, while also conducting advocacy based upon these findings. It is unclear how the organization got connected with the Palacio, et al case, or what it gains to to achieve through successful advocacy in this case, if anything beyond its mandate. HRF raises many violations of international law, particularly applicable in the American, it is possible that it could pursue these alleged violations further at the international level against Ecuador on behalf of and with Palacio.

Global Integrity’s goal is to arm local change agents with the best possible information and metrics so they can design and implement evidence-based, actionable anti-corruption and transparency reforms.

iii. Please provide a link to the website, and draft a brief bio of each organisation.

HRF http://www.thehrf.org/programs.php

Global Integrity http://www.globalintegrity.org/