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Tough-on-Everything Criminal Code Imposes Chill on Ecuador

By: María Gabriela Díaz - Aug 13, 2014, 9:38 am

EspañolSeventy-seven additional felonies will take Ecuadorians straight to prison, according to the new Organic Criminal Code. The law came into effect this week, and its 730 articles have civil libertarians warning that it will become another tool for the state to expand its interventionist reach, with heavy punitive powers.

After over 80 years with the same criminal code, Ecuadorian President Rafael Correa decided in 2012 to introduce an updated version. The National Assembly approved the law in January this year, but not until Sunday did it come into effect.

Ecuador's bus and taxi drivers will now face jail time if they exceed the approved number of passengers. Quito, 2014.
Ecuador’s bus and taxi drivers will now face jail time if they exceed the approved number of passengers. Quito, 2014. (Andes)

Most notably, the code has a much longer list of felonies punishable with jail time, including medical malpractice, the sale of alcohol to minors, femicide, sicariatos (contract assassinations), and migrant trafficking. But beyond what may appear to be severe, warranted crimes, a host of smaller infractions make the incarceration cut: employers who don’t enroll their workers into the state social-security program, individuals who fake a kidnapping, those who forge medical prescriptions, and even bus and taxi drivers who carry too many passengers in their vehicles.

According to Enrique Herrería, director of the Observatory of Rights and Justice — an Ecuadorian watchdog organization dedicated to rights of those who face prosecution — the new criminal code contradicts the national constitution. Article 195, he says, “establishes minimal punishment by the state, and seeks a restrictive approach to punishment on citizens’ actions.”

However, the greatest alarm among civil rights advocates and NGOs has been over the kind of felonies the central government decided to include on the list — those that might push back against state overreach. They also cite ambiguity that provides greater discretionary power to judges.

The new code establishes prison sentences for citizens who commit the crime of rebellion.
The new code establishes prison sentences for citizens who commit the crime of “rebellion.” (Hoy)

For example, Article 336 establishes broadly defined “rebellion” as a crime with a five-to-seven-year prison term. It includes armed uprisings to overthrow the government, dissolve the National Assembly, or stop electoral processes. In shades of the Leopoldo López trial in Venezuela, though, any effort construed to promote an armed movement that might disturb the peace is now also considered a crime.

On this topic, the law is duplicative and possesses apparent contradictions, since Article 336 explicitly protects the people’s “legitimate right to resist” tyranny. Yet Articles 337-346 give a 10-13 year prison sentence for anyone who commits “hostile actions against the state,” one to three years to those who paralyze a public service, and five to seven years for those who commit “sabotage” — anyone who destroys industrial facilities or blocks access to streets to “disrupt the country’s economic order.”

According to the Andean Foundation for the Observation and Study of the Media (Fundamedios), many articles have loopholes that are wide open to each judge’s interpretation. They see this as particularly dangerous in a judicial system that has received criticism for its lack of independence.

They cite at least 15 articles from the criminal code that limit Ecuadorians’ freedom of expression, and “become a tool for persecution of citizens who are critical of the government.” Wary of self-censorship, Fundamedios highlights articles that punish actions deemed “discriminatory” or contrary to the rights of equality and personal privacy, or that harm “the honor and good name” of someone else.

The sanction against any individual who violates another’s right to privacy is one to three years in prison, and includes the release of photographs, videos, audio recordings, or private communications without the consent of the person in question. The article is so broad and vague, according to the organization, that it could deter anyone — including whistleblowers — from providing confidential information.

Perhaps even more chilling, Fundamedios notes that Articles 307 and 322 punish individuals with five to seven years in prison for generating “economic and financial panic.” The new code brings the state down on anyone who “publishes, releases, or spreads false news that can cause harm to the national economy by fluctuating the prices of goods and services, with the purpose of benefiting a particular sector, market, or specific product.” This is a direct threat to experts who publicly give their opinion on economic scenarios and projections, and they will think twice before speaking their minds.

But that’s not all when it comes to free speech. The code includes 15-30 days in prison for anyone who presents an apology for a crime or a person being sentenced for a crime. Herrería, director of the Observatory of Rights and Justice, says this new type of felony has one purpose: “academia and the media can’t give their opinions regarding the imprisonment of people who they find to be unjustly sanctioned by the Ecuadorian justice system. This is particularly important in cases where there has been a clear intervention on behalf of those in political power to obtain rulings against opponents of the Ecuadorian government.”

María Gabriela Díaz María Gabriela Díaz

María Gabriela Díaz reported from Caracas, Venezuela, and led the PanAm Post internship program. She has a Bachelor of Arts in political science with a focus in international affairs.