Ecuador and the Dilemma in the Fight Against Organized Crime

Picture of Daniel Kempken

Daniel Kempken

Daniel Kempken is an independent consultant on rule of law and anti-corruption issues, member of Transparency International and of Foro de America Latina Berlin. He previously held various functions in German governmental cooperation and diplomacy.

Leer en español aquí.

 

Violence and insecurity in Ecuador have increased exponentially since around 2019. Dramatic events culminated in January 2024, when a wave of violence swept across the country. A television channel was hijacked during a live broadcast. Criminal groups assassinated mayors and prosecutors. The powerful drug lord «Fito» managed to escape from prison. The reasons for these troubling events are multiple and complex.

State of Emergency

The new government reacted swiftly and decisively. It declared a state of emergency on January 9, 2024, which, according to President Daniel Noboa, should be understood as a declaration of an internal armed conflict against the drug mafia. Since then, the Ecuadorian army has undertaken military action against 22 criminal groups classified as terrorists. Prisons, formerly controlled by organized crime, have returned to state control. These tough measures met with cross-party approval in Ecuador. Initially, they also led to a certain calm and to a reduction of homicides in the country

Constitutional Aspects, Referendum and Public Consultation

According to Article 166 of the Ecuadorian Constitution, a state of emergency can be declared for a maximum of 60 days and can only be extended for an another 30 days. Based on this legal situation, on April 10, 2024 the government called for both a referendum on a constitutional amendment and a public consultation on the measures it planned and those it had already initiated. Previously, the government had submitted the questions directed to citizens to the Constitutional Court.

In decisions and opinions dated January 26, 2024 and April 5, 2024, the Court admitted eleven of these questions. Ten other questions regarding options for the army, police, security services and prison administrations, the expulsion of foreigners, special courts, extinction of ownership, judiciary evaluation, illegal mining, and economic measures were not authorized.

The constitutional referendum, in accordance with Annexes 1 and 2 of the Constitution, consisted of five questions, three of which were approved by the consulted population:

  • Military support to the National Police in the fight against organized crime.
  • Extradition of Ecuadorians in cases of serious crimes.
  • Special courts for judicial guarantees, in particular habeas corpus procedures.

Two proposals on controversial economic measures were rejected: recognition of international arbitration courts and changes in labor legislation.

In the public consultation, the majority voted in favor of the following six measures:

  • Military control of traffic and prisons.
  • Increased imprisonment for terrorism, drug trafficking, organized crime, homicide, human trafficking, kidnapping, money laundering, and others.
  • Exclusion of sentence reductions for serious crimes.
  • Strengthening of gun laws.
  • Use of confiscated weapons by security forces
  • Simplification of asset forfeiture procedures.

In summary, the referendum and the public consultation have considerably expanded the possibilities of the judiciary and the security forces, particularly the military. Thus, measures that previously could only be applied in a state of emergency have become legally possible. However, to limit constitutional guarantees established in Article 66 of the Constitution, such as the right to inviolability of home and correspondence, a declaration of a state of emergency as outlines in Article 166, which is subject to judicial control, is still required.

Specific Operations

In March 2024, the Attorney General’s Office carried out two large-scale operations called Metastasis and Purga against corruption and the infiltration of organized crime in state institutions. The measures mainly targeted more than 50 high-ranking officials from the legislative, judicial and administrative branches. The President of the Judicial Council, the former President of the Provincial Court of Guayas, other judges, prosecutors and parliamentarians have been detained for corruption and collaboration with organized crime. Obviously, these are successes in criminal prosecution, but it also makes clear how far organized crime had already infiltrated various state institutions.

In total, between January and March 2024 about 17.000 people were detained while prisons remained under the effective control of the military. Homicides, which had previously increased dramatically, fell by 27% between January and April 2024. However, by the end of March, an increase in general crime, in particular extortion and kidnappings, was observed again. Political assassinations continue to occur.

As a result, the Ecuadorian government issued three emergency decrees for the most conflict-ridden provinces: Los Ríos, Guayas, Santa Elena, Manabí, El Oro, Sucumbíos, Orellana and part of Azuay. However, according to rulings and opinions of the Constitutional Court, two of these decrees were unconstitutional. The third is pending in the judicial proceeding.

Dangers to Rule of Law and Human Rights

Military forces have a good reputation in Ecuador. However, it is problematic that the military does not have adequate training for police forces, and that, due to their new tasks, they are exposed to previously unknown risks of corruption.

The possibility of extraditing criminals, especially to the U.S., and the special jurisdiction for habeas corpus trials may have a deterrent effect, but they can also provoke drastic counter-reactions from organized crime. There is also still the question of how to ensure the safety of judges and prosecutors working in this area.

In particular, it is criticized that the declaration of an internal armed conflict is not covered by international law and that security measures have led to serious human rights violations. The Constitutional Court also questions whether addressing the problem with a focus on an internal armed conflict corresponds to international law, and calls for restricted requirements for this measure.

Tough Action and Complex Reforms

Ecuador faces a central question that also arises in other countries with similar problems of widespread violence and relatively weak institutions: how to combine the necessary tough police measures, effective criminal prosecution and coherent prison discipline with the equally necessary respect of human rights and due process.

Repressive police and military measures with corresponding power can achieve, at least temporarily, some degree of calm and public security, as demonstrated by the case of El Salvador. At the same time, however, unjustified detentions and serious violations of human rights and of due process of law have increased.

Therefore, the call for security forces that are not only well-trained in consistent and tough measures against crime but also in respecting human rights and in effectively enforcing law according to international standards is more than justified. Generally, creating institutions adequately prepared for such tasks involves implementing significant anti-corruption measures. In this sense, the Ecuadorian Constitutional Court is calling for work on structural solutions.

To carry out such complex reforms, the government and the judiciary need strong political will, the opposition’s willingness to play a constructive role, a large amount of financial resources, and the support of civil society organizations, as well as the international community. The size and complexity of the task also means that the necessary success cannot be achieved overnight.

The Dilemma

Therefore, the question of how far a tough action policy can go during a transitional period to prevent the expansion of organized crime and guarantee the necessary minimum level of public safety as soon as possible almost inevitably arises. In other words, the question as to the necessity and proportionality of repressive measures at any given time arises. For sure organized crime will not suspend its criminal activities until a state power that acts in accordance with rule of law is established. Hence, and in view of the dramatic outbreak of violence, the Ecuadorian government faces a dilemma, at least for the time being.

Currently, it still seems unclear how the Ecuadorian state will resolve this problematic tension between the necessary and demanded repressive measures and the equally necessary protection of human rights. The Ecuadorian Minister of Government and Interior emphasizes that human rights must be respected despite harsh measures. Moreover, the Constitutional Court exercises judicial control to guarantee constitutional rights and the proportionality of the measures.

Regardless of this dilemma and apart from criminal prosecution, preventive measures against corruption and crime should have much more importance than they have had so far.

 


Foto: AP Photo/Dolores Ochoa

Picture of Daniel Kempken

Daniel Kempken

Daniel Kempken is an independent consultant on rule of law and anti-corruption issues, member of Transparency International and of Foro de America Latina Berlin. He previously held various functions in German governmental cooperation and diplomacy.