Opinion; Subjects: ECUADOR, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-14796 (E) 270422 270422
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 39/2021 concerning Jorge Glas Espinel (Ecuador)**
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251
and Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The Council most recently extended the mandate of the Working Group for a
three-year period in its resolution 42/22.
2.
In accordance with its methods of work, 1 on 6 July 2020 the Working Group
transmitted to the Government of Ecuador a communication concerning Jorge Glas Espinel.
The Government replied to the communication on 2 October 2020. The State is a party to the
International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
* Reissued for technical reasons on 27 April 2022.
** In accordance with para. 5 of the Working Group’s methods of work, Miriam Estrada-Castillo did not
participate in the discussion of the present case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/39*
General Assembly
Distr.: General
14 October 2021
English
Original: Spanish
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or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
Submissions
Communication from the source
4.
Jorge Glas Espinel is a citizen of Ecuador, born in 1969. He is an electrical engineer
and a former Vice-President of Ecuador, a position he held from 2013 until his arrest in
October 2017. He also served as President of the Solidarity Fund, Minister for
Telecommunications and the Information Society, and Minister for the Coordination of
Strategic Sectors. Mr. Glas Espinel has suffered from various medical conditions since
childhood, some of which have been diagnosed as incurable.
5.
On 2 August 2017, Mr. Glas Espinel published an open letter in which he denounced
certain irregularities in the governance of Ecuador under the administration of President
Lenín Moreno. The source states that, owing to the publication of this letter, on 3 August
2017 the President signed a decree relieving Mr. Glas Espinel of all the duties that had been
attributed to him.
a.
First trial and conviction
6.
On 29 September 2017, exercising his right to freedom of expression, Mr. Glas
Espinel called a meeting with the press so that he could respond to accusations of unlawful
association made in criminal proceedings brought against him in connection with contracts
awarded to the construction company Odebrecht. On the same day, at the request of the
Attorney General’s Office, the court scheduled a review of precautionary measures for 2
October 2017. In his request, the Attorney General argued that new evidence had been
obtained during the official criminal investigation. The source states that Mr. Glas Espinel
had complied with the precautionary measure prohibiting him from leaving the country that
had been in place since 29 August 2017.
7.
On 2 October 2017, the hearing for the review of precautionary measures took place.
The Attorney General requested that Mr. Glas Espinel be placed in pretrial detention because
he represented an increased flight risk and new evidence against him had been uncovered.
The Attorney General also opened a further investigation related to new criminal offences.
The source states that, since the Vice-President had a 24-hour military and police escort at
that time, the flight risk claim was an unfounded pretext. He also asserts that the pretrial
detention order was arbitrary, since, under article 542 of the Comprehensive Organic
Criminal Code, a custodial measure may be applied only in the event of failure to comply
with a non-custodial precautionary measure. Additionally, the deadline for the conclusion of
the official criminal investigation – and the change of precautionary measure – was 1 October
2017, one day before the arrest warrant was issued. According to the source, the intention
behind Mr. Glas Espinel’s pretrial detention was to cause his temporary absence, which
would then become permanent, and thus facilitate his removal from office, as subsequently
transpired.
8.
On 2 October 2017, Mr. Glas Espinel was arrested by officers of the National Police
at his home in Guayaquil. He surrendered to justice voluntarily. The police officers had a
warrant issued by the judge of the National Court of Justice that authorized them to take Mr.
Glas Espinel into pretrial detention.
9.
Mr. Glas Espinel’s detention began on the day of his arrest pursuant to the
aforementioned warrant, that is, on 2 October 2017. He was flown from Guayaquil to Quito
and incarcerated in Prison No. 4 of Quito, which is designed to house people who might be
in greater danger if held with the general prison population and is located a short distance
from specialized hospitals able to treat Mr. Glas Espinel’s health complications.
10.
The source alleges procedural irregularities in the collection of evidence. He claims
that advance testimony was admitted that could not be heard or cross-examined by the
defence. Documentary evidence was introduced that could not be verified as authentic and
for which the chain of custody was not duly documented. Moreover, none of the other
defendants implicated Mr. Glas Espinel; rather, they stated that he was not involved.
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11.
On 13 December 2017, the criminal division of the National Court of Justice convicted
Mr. Glas Espinel of unlawful association and sentenced him to 6 years’ imprisonment. The
source claims that this prevented Mr. Glas Espinel from applying for a suspension of his
sentence, which is only possible for sentences of up to 5 years’ imprisonment. The source
also claims that an official announcement informing all television channels of the decision
was made on the same day. On 3 January 2018, Mr. Glas Espinel was dismissed from his
position as Vice-President. He was formally notified of the Court’s decision on 23 January
2018.
12.
The source questions the impartiality of the trial court, indicating that applications for
recusal had been submitted against two of the criminal division judges, one for having
adjudicated a related case and the other for being married to an employee of the former
Attorney General.
13.
The National Court of Justice, sitting as a court of appeal, dismissed the appeal on 8
June 2018. On 16 October 2019, sitting as a court of cassation, it rejected the appeal in
cassation, despite all the grounds for annulment cited by the defence.
b.
Transfer and conditions of detention
14.
On 21 October 2018, after another former government official in the administration
of the ex-Vice-President left Ecuador to evade criminal proceedings, the Ministry of Justice
ordered Mr. Glas Espinel’s transfer to the Cotopaxi regional social rehabilitation centre,
maximum security prison in Latacunga, more than 100 kilometres from Quito, alleging that
he was set to abscond. In this facility Mr. Glas Espinel has been held with the most dangerous
prisoners, who have assaulted him and threatened to kill him and his family on several
occasions. One of his cellmates was murdered, decapitated and burned.
15.
The source reports that Mr. Glas Espinel is still being held at Latacunga, where his
situation has worsened, especially after the Government refused to transfer him to another
prison. The source indicates that he has been subjected to humiliating treatment, as have his
family members when visiting him in the prison. In addition, he has spent most of his time
in solitary confinement, as he spends more than 23 hours a day locked in his cell.
16.
On 31 December 2019, the Inter-American Commission on Human Rights granted
precautionary measures in favour of Mr. Glas Espinel and requested Ecuador to take the
necessary measures to protect his rights to life and personal integrity. The Commission
requested the Government to report within 15 days on the implementation of the
precautionary measures. On 14 January 2020, at a meeting between Mr. Glas Espinel’s
lawyer and family members and representatives of the Government, the Undersecretary for
Human Rights reportedly indicated that the Government would not comply with the
Commission’s request.
c.
Second criminal conviction
17.
The source reports that, on 10 February 2020, a second trial opened against Mr. Glas
Espinel, former President Rafael Correa and other persons accused in the context of the so-
called “bribery case”. The defendants were accused of leading a criminal organization that
received payments from private companies in exchange for the award of public-sector
contracts.
18.
The Attorney General’s Office had launched an investigation into purported evidence
that numerous public employees had used cross invoicing and cash payments to make the
financial transfers possible. The transfers were allegedly made by businesses seeking to
benefit from State contracts.
19.
The source reports that an email exchange between the National Court of Justice judge
who was hearing the case and the secretariat of the Attorney General’s Office had been made
public that revealed a lack of independence and impartiality in the judicial proceedings. In
an email dated 31 March 2020, the secretariat had apparently sent the judge a file in which it
set out the changes to the charges against Mr. Glas Espinel that would need to be admitted in
order to secure a harsher sentence.
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20.
On 7 April 2020, Mr. Glas Espinel was sentenced to 8 years’ imprisonment as a co-
perpetrator of aggravated bribe-taking. The public defender filed petitions for the extension
and clarification of the judgment and an appeal against it.
d.
Allegations of arbitrary detention
i.
Category II
21.
The source highlights that, on 2 October 2017, a judge of the National Court of Justice
issued a warrant for the pretrial detention of Mr. Glas Espinel that did not meet the legal
requirements in that it did not state the charges against him or the legal basis for the detention,
absent any real evidence. The offence that was subsequently invoked to justify the arrest was
that of unlawful association, as set forth under article 370 of the Comprehensive Organic
Criminal Code, which provides that, when two or more persons associate with one another
for the purpose of committing offences punishable by a term of imprisonment of less than 5
years, each shall be punished, for the mere fact of the association, by 3 to 5 years’
imprisonment. The source notes that Mr. Glas Espinel was sentenced to 6 years, which
exceeds the maximum penalty established in the aforementioned law.
22.
Article 25 of the Covenant enshrines the right of access, on general terms of equality,
to public service, which was not respected in the present case. The source also claims, that
Mr. Glas Espinel was detained as a result of having legitimately exercised his right to freedom
of political expression under article 19 of the Universal Declaration of Human Rights and
article 19 of the Covenant. It is alleged that Mr. Glas Espinel was deprived of his liberty
because of his political opinions, in violation of article 26 of the Covenant.
ii.
Category III
23.
After withdrawing Mr. Glas Espinel’s immunity, the National Assembly authorized
his prosecution solely for the offence of unlawful association, as defined under articles 369
and 370 of the previous Criminal Code and subsumed under article 370 of the current
Comprehensive Organic Criminal Code. However, by invoking article 369 of the latter and
finding Mr. Glas Espinel guilty of organized crime, the judge was able to sentence him to 6
years’ imprisonment even though the maximum penalty for unlawful association is 5 years.
If Mr. Glas Espinal had been given a 5-year sentence, he would have been able to apply for
a suspension of his sentence. The 6-year sentence meant that he was not eligible for this
benefit.
24.
Article 14 (2) of the Covenant provides that everyone charged with a criminal offence
has the right to be presumed innocent until proved guilty according to law. However, Mr.
Glas Espinel was sentenced, on 23 January 2018, for an offence of which he had not lawfully
been proved guilty.
25.
The source alleges that the fundamental principle of the independence of the judiciary
was violated in the present case. The Attorney General protected three witnesses who gave
advance testimony that was later used in the trial as the main basis for Mr. Glas Espinel’s
conviction, meaning that they could not be cross-examined by the defence. Mr. Glas Espinel
was thus convicted on the basis of testimonies that his lawyer was unable to challenge, in
violation of article 14 (3) (b) and (e) of the Covenant, which establish the right of the accused
to have all necessary facilities for the preparation of their defence and the possibility of
examining witnesses under the same conditions as the other party.
26.
The source also notes that the appeal in cassation was heard on 16 October 2019, one
year and 10 months after the conviction at first instance. In the meantime, Mr. Glas Espinel
had been detained in Prison No. 4 of Quito, and, since 21 October 2018, in the Cotopaxi
regional social rehabilitation centre in Latacunga. This period of detention seems too long in
view of article 14 (3) (c) of the Covenant, which establishes that accused persons are entitled
to be tried without undue delay.
27.
The source indicates that Mr. Glas Espinel has had health problems since childhood
and currently suffers from high blood pressure, gastritis and rheumatoid arthritis, among
other conditions. However, he is not receiving the treatment necessary to maintain his
physical and mental integrity. On 25 November 2018, doctors from the Ministry of Health
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issued a report on his state of health, which described “a notable deterioration due to physical
exhaustion, difficulty in moving and losses of consciousness” and noted a risk of “death by
starvation”. However, the authorities took no steps to provide Mr. Glas Espinel with the
necessary medical treatment. They have therefore failed to respect article 10 of the Covenant,
which enshrines respect for the dignity of persons deprived of their liberty. This failure also
runs counter to article 201 of the Constitution of Ecuador, which states that the purpose of
the social rehabilitation system should be to protect persons deprived of their liberty and
guarantee their rights.
iii.
Category V
28.
The source claims that Mr. Glas Espinel’s detention constitutes discriminatory
treatment motivated by his political views and opposition to the Government. Mr. Glas
Espinel was a member of the previous administration and was opposed to the political U-turn
that President Lenín Moreno had made after taking power. He therefore denounced several
of the measures taken by the Government, including the sale of State-owned enterprises and
other agreements concluded with powerful interest groups. On 2 August 2017, he issued an
open letter in which he denounced the irregularities in the President’s administration. The
next day, 3 August, the President relieved Mr. Glas Espinel of all duties that had been
assigned to him as Vice-President.
29.
The source recalls that this action was not taken in isolation, but in the context of the
systematic political persecution of leaders opposed to the Government. Consequently, Mr.
Glas Espinel’s arrest violated article 19 of the Universal Declaration of Human Rights,
establishing the right to freedom of opinion and expression, and article 26 of the Covenant.
Response from the Government
30.
On 6 July 2020, the Working Group transmitted the allegations from the source to the
Government. The Working Group requested the Government to provide detailed information
on the case of Mr. Glas Espinel by 4 September 2020. In addition, the Working Group
requested the Government to safeguard Mr. Glas Espinel’s physical and mental integrity. The
Government requested an extension of the deadline and was given until 5 October 2020 to
reply. The Government submitted its response on 2 October 2020.
31.
The Government recalls that Mr. Glas Espinel served as Vice-President in the
administration of President Rafael Correa between 2013 and 2017. On 21 December 2016,
the United States Department of Justice published a report revealing that the Odebrecht
Group had paid bribes in 12 countries, including Ecuador. The report stated that, in Ecuador,
between 2007 and 2016, the company had paid $33.5 million to obtain works contracts valued
at $116 million in strategic sectors.
32.
On 22 December 2016, the Attorney General’s Office opened a preliminary
investigation into the offences of bribery assumed to have been committed on the basis of the
information disclosed by the United States Department of Justice. In the context of this
investigation, on 27 December 2016, a candidate for election to the National Assembly
submitted a request for Mr. Correa Delgado and Mr. Glas Espinel to appear before the
Attorney General’s Office to testify regarding the reports of bribery on the part of the
Brazilian construction company Odebrecht. On 6 February 2017, the same person filed a
complaint against Mr. Glas Espinel linking him to the Odebrecht case.
33.
On 24 May 2017, President Lenín Moreno commenced his four-year presidential term
with Mr. Glas Espinel serving as Vice-President. On 5 July 2017, the Attorney General’s
Office filed a request to place Mr. Glas Espinel under criminal investigation for the offence
of unlawful association in relation to which proceedings had already been initiated against
nine other persons.
34.
On 1 August 2017, the Office of the Comptroller General published a report on an oil
development contract concluded between the Ecuadorian State and a consortium of two
companies. The report stated that there were some irregularities in the contract. The
concession was awarded by a committee that included the then Minister for the Coordination
of Strategic Sectors, Mr. Glas Espinel. The report established that the negotiating team had
calculated the internal rate of return considering only 80 per cent, rather than 100 per cent,
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of the proven reserves, causing the State to lose $5.2 million in revenue, from which the
consortium benefited. Moreover, the consortium did not fulfil the requirements laid down in
the bidding conditions. The Office’s report concluded that the contract had been wrongly
awarded as the bid did not meet the requirements and should therefore have been disqualified.
35.
On 3 August 2017, acting on the basis of the allegations made against Vice-President
Glas Espinel, President Lenín Moreno signed Executive Decree No. 100 relieving him of his
assigned duties.
a.
Prosecution for unlawful association
36.
On 22 August 2017, the Attorney General requested the case judge to include Mr.
Glas Espinel in the criminal investigation into the alleged offence of unlawful association in
which nine suspects were already implicated. On 25 August 2017, the National Assembly
authorized Mr. Glas Espinel’s prosecution. On 29 August 2017, having studied several
testimonies, the case judge extended the investigation to include Mr. Glas Espinel. At the
request of the Attorney General’s Office, the judge ordered that, as a precautionary measure,
Mr. Glas Espinel should be prohibited from leaving the country.
37.
The Attorney General applied for a review of the precautionary measures ordered in
respect of Mr. Glas Espinel and requested that he be remanded in custody.
38.
The Government states that the Attorney General was able to demonstrate that the
requirements for pretrial detention were met, having put forward new evidence attesting to
the existence of a publicly actionable offence and the extent of the defendant’s involvement.
Having found the existing precautionary measure to be insufficient and pretrial detention
therefore necessary, the judge ordered that Mr. Glas Espinel be remanded in custody. Mr.
Glas Espinel was thus deprived of his liberty on 2 October 2017.
39.
On 8 November 2017, the case judge confirmed all the precautionary measures that
had been ordered in respect of Mr. Glas Espinel, including his pretrial detention. On 13
December 2017, Mr. Glas Espinel was sentenced at first instance to 6 years’ imprisonment
for the offence of unlawful association. He was formally notified of the decision on 23
January 2018. The defendants appealed against the judgment.
40.
According to the Government, Mr. Glas Espinel was found guilty and sentenced to 6
years’ imprisonment pursuant to article 370 of the Criminal Code, a provision that was in
force and had not been repealed at the time of the events. Article 370 provided as follows:
“If the purpose of the association is to commit crimes punishable by long-term imprisonment,
the instigators and leaders of the association shall be punished by 3 to 6 years’
imprisonment.”
41.
On 3 January 2018, President Lenín Moreno dismissed Mr. Glas Espinel from his
position as Vice-President in accordance with article 146 of the Constitution, which states
that a temporary absence from office, whether due to illness or some other circumstance of
force majeure that prevents the person concerned from fulfilling their duties for a maximum
period of three months, constitutes grounds for removal from office.
42.
On 8 June 2018, the court of appeal dismissed the author’s appeal and upheld the
judgment. Mr. Glas Espinel lodged an appeal in cassation against this decision. On 21
October 2018, the prison authorities ordered Mr. Glas Espinel’s transfer to the Cotopaxi
regional social rehabilitation centre in Latacunga.
43.
On 24 October 2018, Mr. Glas Espinel’s lawyer submitted an application for habeas
corpus, stating that the conditions of his client’s detention at Latacunga threatened his health
and personal integrity, given the chronic illnesses from which he suffered. A habeas corpus
hearing took place on 25 October 2018, at which the director of the Cotopaxi regional social
rehabilitation centre stated that the Ministry of Health had assessed Mr. Glas Espinel’s health
upon admission to the centre; that it monitored him constantly, since he had begun a hunger
strike; and that it delivered his medication regularly. The director also reported that Mr. Glas
Espinel had been provided with psychiatric and psychological care. On 31 October 2018, the
Criminal Court of Latacunga dismissed the application for habeas corpus. On 6 December
2018, the criminal division of the Provincial Court of Justice of Cotopaxi denied Mr. Glas
Espinel’s request to be transferred to Prison No. 4 of Quito.
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44.
On 26 October 2019, the appeal in cassation filed by Mr. Glas Espinel against his
conviction for unlawful association was rejected and the judgment became final.
b.
Prosecution for bribery
45.
On 3 January 2020, 21 defendants accused of bribery went on trial before the special
division for criminal, military, police and traffic offences of the National Court of Justice.
On 7 April 2020, Mr. Glas Espinel was sentenced to 8 years’ imprisonment.
46.
Mr. Glas Espinel appealed against the judgment. The appeal was rejected on 20 July
2020 and the decision at first instance was upheld. Mr. Glas Espinel lodged an appeal in
cassation, which was rejected on 8 September 2020.
c.
Allegations of arbitrary detention
47.
With regard to category II, the Government reiterates that the pretrial detention order
issued in respect of Mr. Glas Espinel was based on articles 521 and 534 of the Comprehensive
Organic Criminal Code. Under article 521, at the request of a prosecutor during a hearing,
the judge may replace a precautionary measure ordered against an individual with detention
if this is warranted by new facts or if new evidence is obtained that confirms previously
unproven facts. Article 534 sets out four requirements for ordering pretrial detention.2 In
deciding whether to order this measure, the judge must also consider whether the defendant
failed to comply with an alternative to pretrial detention granted previously in any other case.
In the present case, the judge ordered pretrial detention in accordance with the law.
48.
Regarding the assertion that Mr. Glas Espinel’s sentence exceeded the maximum
penalty established by law, the Government points out that he was convicted of unlawful
association, an offence proscribed under article 370 of the Criminal Code that was in force
at the time of the events. The judge hearing the case imposed the maximum penalty, ruling
that, since Mr. Glas Espinel held “the highest powers of Government (including the power to
interfere), he exercised comprehensive control over strategic sectors and used that power to
confer protection. As he is the person who decided to expel Odebrecht from Ecuador and
who then led negotiations for the company’s return, the maximum penalty set forth under
article 370 of the Criminal Code, namely 6 years’ imprisonment, is applicable to his case”.
Contrary to the source’s assertion, the penalty was provided for by law and was amply
justified.
49.
Mr. Glas Espinel was deprived of his liberty solely because of his involvement in acts
of corruption that have been duly investigated and punished in criminal proceedings for the
offences of unlawful association and bribe-taking. Furthermore, the investigations that were
extended to include Mr. Glas Espinel were opened in December 2016 after the publication
of the United States Department of Justice report and not as a result of Mr. Glas Espinel’s
public statements, as the source claims. In the present case, neither article 19 of the Universal
Declaration of Human Rights nor article 26 of the Covenant have been violated.
50.
Regarding category III, the Government states that, in both the two criminal cases and
the habeas corpus proceedings, Mr. Glas Espinel was accorded the right to be heard, was
assisted by defence counsel and was able to present exculpatory evidence, to challenge the
decisions taken by the judicial authorities, including by appealing against the pretrial
detention order, to request alternatives to pretrial detention, to appeal against and apply for
cassation of the judgments handed down in the two criminal cases, and to request the recusal
of judges. All his requests were heard and decided upon in a timely manner.
51.
The judicial authorities decided upon the two criminal cases within a reasonable
period of time, taking into account the complexity of the case and the actions instituted by
the parties. The two criminal prosecutions, which have taken between two and three years,
are highly complex owing to the number of people involved, the size of the case file, the
2 The four requirements are: sufficient evidence of the existence of a publicly actionable offence
punishable by deprivation of liberty; clear and specific evidence that the accused perpetrated or was
an accomplice to the offence; evidence that the non-custodial precautionary measures are insufficient;
the offence must be punishable by a sentence of more than 1 year’s imprisonment.
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offences under consideration and the evidence adduced. There is no evidence of a violation
of article 14 (3) (c) of the Covenant.
52.
Regarding category V, Mr. Glas Espinel was detained and imprisoned solely on
account of his links to acts of corruption, his involvement in which has been duly investigated
and proved. For this reason, neither article 19 of the Universal Declaration of Human Rights
nor article 26 of the Covenant has been violated.
53.
The Government recalls that, on 13 December 2019, the Inter-American Commission
on Human Rights granted precautionary measures in Mr. Glas Espinel’s favour. Contrary to
the source’s assertions, the State has taken several measures to protect the life and integrity
of Mr. Glas Espinel, who is being held separately from the general prison population. His
cell is physically safe and has windows for ventilation and sunlight, a private bathroom, hot
water, drinking water 24 hours a day and appropriate basic services, including limited
Internet access. He does not share his living space with other inmates.
54.
According to the Government, Mr. Glas Espinel’s health is under constant medical
supervision and he has been taken to health centres whenever his condition has required that
he receive specialized care. Although Mr. Glas Espinel is at low risk, safety, custodial,
protective and surveillance measures remain in place in order to safeguard his integrity. Since
the beginning of the public health emergency, various steps have been taken to facilitate the
right to communication of persons deprived of their liberty, including the installation of fixed
telephone lines so that they can make telephone calls. The source’s assertion that Mr. Glas
Espinel spends more than 23 hours a day locked up in his cell reflects a decision taken of his
own accord, as he is allowed to visit an outdoor courtyard at scheduled times. Mr. Glas
Espinel is protected by police and prison guards 24 hours a day.
55.
The main purpose of the national and international precautionary measures is to
protect the life and integrity of Mr. Glas Espinel, who, when requesting such measures, has
not claimed to have been arbitrarily detained or unlawfully deprived of his liberty.
Additional comments from the source
56.
The source reiterates that the Comptroller General and the Attorney General have
arbitrarily instituted administrative, civil and criminal proceedings against several officials
of the previous Government. In this context of political persecution, Mr. Glas Espinel was
placed under criminal investigation for allegedly taking bribes from the Brazilian company
Odebrecht. Having reached an agreement with the Attorney General, the former manager of
Odebrecht in Ecuador said that he had made a recording that would prove that bribes had
been paid. However, there is no proof that such a recording, nor any of the other alleged
evidence against Mr. Glas Espinel, exists.
57.
Mr. Glas Espinel enjoyed immunity that could only be revoked by resolution of the
National Assembly. In order to prove his innocence to his detractors, Mr. Glas Espinel asked
the National Assembly to authorize his prosecution. Moreover, it was Mr. Glas Espinel who
filed the complaint against Odebrecht. In the criminal proceedings, none of the other
defendants implicated Mr. Glas Espinel in any wrongdoing, nor did his name appear
anywhere in the documentation. The recordings presented by the Attorney General’s Office
demonstrated that Mr. Glas Espinel did nothing except his duty at all times. All his accounts
and assets have been examined and no ill-gotten money has been found.
58.
The source reiterates that basic due process safeguards were not observed during the
criminal proceedings. One of the many irregularities is the discrepancy between the offence
for which the National Assembly authorized the prosecution and the offence of which Mr.
Glas Espinel was convicted. The National Assembly authorized his prosecution for the
offence of unlawful association under articles 369 and 370 of the Criminal Code. However,
when deciding which provisions to apply, the judge chose to equate these articles of the
repealed Criminal Code with article 369 of the Comprehensive Organic Criminal Code and
thus to apply this article, whereas he was only authorized to apply article 370 of the
Comprehensive Organic Criminal Code.
59.
In addition, advance testimonies were taken from three persons, one of whom was
from Odebrecht. The Attorney General protected these witnesses from cross-examination by
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the defence even though their statements were used in the judicial process as the main basis
for the conviction. In other words, Mr. Glas Espinel was convicted on the basis of testimonies
that he could not dispute.
60.
Mr. Glas Espinel was Vice-President for four years under the previous and current
administrations. This places him in a vulnerable position, not only because he is a public
figure, but also because of the national security information he possesses. On 21 October
2018, he was transferred to the prison at Latacunga, a transfer that has seriously endangered
his right to life, his right to integrity and security of person and his right not to be
discriminated against and placed him at risk of irreparable harm. Mr. Glas Espinel has
received at least 30 death threats.
61.
According to the source, on 20 October 2018, another victim of political persecution
by the administration of Lenín Moreno fled the country. Having been subjected to criminal
proceedings in which the court had ordered him to wear an electronic monitoring device as a
precautionary measure, this person removed the device and travelled to another country to
seek asylum. The source points out that, on 21 October 2018, just one day after the departure
of this former official in the administration of President Rafael Correa, the authorities ordered
Mr. Glas Espinel’s transfer to Latacunga for “security reasons”, without explaining what
these reasons were. The unjustified presumption that all those who served in the previous
Government were going to abscond, and its use as a basis for differential treatment or
penalties such as those imposed upon Mr. Glas Espinel, constitute discrimination on the
grounds of political opinion, which is expressly prohibited by the Covenant.
Discussion
62.
The Working Group thanks the parties for their cooperation with this procedure.
63.
The Working Group initially considered this case at its ninetieth session in May 2021.
At this time, and on the basis of all the information received, the Working Group decided
that it did not have sufficient evidence to reach a conclusion. Consequently, and as an
exceptional measure, the Working Group decided to seek clarification from the source on
several aspects of the case, with the intention of subsequently requesting a response from the
Government on any information received.
64.
In June 2021, the source provided additional information in response to the Working
Group’s request for clarification. After careful consideration of the source’s reply, the
Working Group remains unable to determine whether Mr. Glas Espinel has been arbitrarily
detained. The Working Group therefore decided not to transmit the additional information
received to the Government for its reply.
65.
The Working Group wishes to express its grave concern about the deterioration in Mr.
Glas Espinel’s health and the dangerous conditions in which he is allegedly being detained.
According to the source, Mr. Glas Espinel has received death threats while being held at the
Cotopaxi regional social rehabilitation centre. Moreover, it has recently been reported that
other prisoners at the centre have lost their lives as a result of violent incidents within the
facility. The Working Group urges the Government of Ecuador to take immediate action to
safeguard Mr. Glas Espinel’s safety and well-being, including granting alternatives to
detention such as early release.
66.
The Working Group has decided to refer the present case to the Special Rapporteur
on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health, the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on extrajudicial, summary or arbitrary
executions.
Disposition
67.
Based on all of the information received to date, the Working Group is not in a position
to conclude that the detention of Mr. Glas Espinel falls within any of the categories of
arbitrary deprivation of liberty laid down in its methods of work.
68.
In accordance with paragraph 17 (c) of its methods of work, the Working Group
decides to keep the present case pending, without prejudice to the possibility of the source or
A/HRC/WGAD/2021/39
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GE.21-14796
the Government submitting further information that would enable the Working Group to
determine whether Mr. Glas Espinel has been arbitrarily deprived of his liberty.
69.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on the right of everyone to the enjoyment of the
highest attainable standard of physical and mental health, the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur
on extrajudicial, summary or arbitrary executions, for appropriate action.
[Adopted on 9 September 2021]