Roberto Isaias and William Isaias: UN Human Rights Committee opinion

United Nations
International Covenant on Civil and Political Rights

Human Rights Committee
OPINION ADOPTED BY THE COMMITTEE UNDER ARTICLE 5(4) OF THE OPTIONAL PROTOCOL WITH RESPECT TO COMMUNICATION NO. 2244/2013

Submitted by:
Roberto Isaias Dassum and William Isaias Dassum (Represented by attorneys Xavier Castro Munoz and Heidi Laniado Hollihan)

Alleged victim:
The authors

State party:
Ecuador

Date of communication:
March 12, 2012 (initial submission)

References:
Decision adopted in accordance with Article 97 of the Committee Regulations, transmitted to the State Party on June 5, 2013 (not published as a document)

Date of approval of the opinion:
March 30, 2016

Subject matter of the authors:
Criminal conviction and confiscation of assets

On the merits:

Right of liberty

Guarantees of due process

Retroactive application of unfavorable criminal law

Equality before the law and non-discrimination

On procedure:

Lack of status as victim

Inadmissibility ratione materiae

Litis pendentia

Lack of jurisdiction

Non-exhaustion of domestic remedies

Abuse of the right to submit communications

Roberto Isaias Dassum and his brother William Isaias Dassum appealed to the United Nations their unfair and illegal treatment at the hands of the Ecuadorian government which violated the International Covenant on Civil and Political Rights, which Ecuador joined in 1976.

1. The authors of the communication are Roberto Isaias Dassum and William Isaias Dassum, Ecuadorian citizens. They allege that they are victims of the violation of their rights recognized in Articles 9; 14(1) and (2), separately and in relation to Article 2(1) and (3a); 14(3c); 15; and 26 of the International Covenant on Civil and Political Rights. The Optional Protocol went into force for Ecuador on March 23, 1976.

THE FACTS ACCORDING TO THE AUTHORS

Roberto Isaias and William Isaias are Ecuadorian businessmen and owners of a family-owned company called the Isaias Group, which owned the largest bank in Ecuador: Filanbanco. In the late 1990s, Ecuador experienced a financial crisis. As such, Filanbanco turned to the government for liquidity loans, which were approved.

2.1 The authors are businessmen and were shareholders and administrators of companies comprising a corporate unit known as the “Isaias Group,” the most visible head of which was Filanbanco bank. The authors were President and Vice President of this bank, respectively. At the end of the nineties, Ecuador went through external and internal difficulties that seriously affected its economy. The loss of the manufacturing sector in general had severe repercussions on the financial system, as creditor of the former. Ecuadorian banks suffered a serious crisis starting in 1998, when practically all of the banks requested liquidity loans from the Central Bank of Ecuador (Banco Central del Ecuador – BCE). These loans were granted by the BCE in 1998 and were based on the solvency of the regulatory capital constituted by the financial group in question, which was sent to the Office of the Superintendent of Banks. The solvency of Filanbanco was certified by that entity, which approved its access to stabilization loans.

After getting help from the feds, Filanbanco requested that it go through a restructuring in order to strengthen the bank.

2.2. After receiving several liquidity loans, the private shareholders of Filanbanco asked the Ecuadorean Banking Board to have the bank undergo a Restructuring Program in order to strengthen it, which was decided by a Resolution dated December 2, 1998. This program applied exclusively to solvent banks facing liquidity problems, which proves that Filanbanco was a solvent bank whose liquidity problems were temporary. Otherwise it would have undergone a sanitization process [procedimiento de saneamiento] for subsequent liquidation.

When Filanbanco restructured, the Ecuadorian government agency called the Deposit Guarantee Agency took over ownership of the bank. At that time, the bank was already solvent again. However, in 2002, Ecuador forced a liquidation of the bank and closed its doors due to financial trouble caused by the government during its ownership of Filanbanco.

2.3. Under the Restructuring Program, the bank was turned over to a state agency, the Deposit Guarantee Agency (Agencia de Garantia de Depositos – AGD). An audit performed by entity Arthur Andersen in March 1999, just three months after the bank was turned over to the AGD and during the state administration, demonstrated that the bank was solvent and that the private administration crisis was due to liquidity problems. However, on July 30, 2002, while still under state administration, the Banking Board ordered the forced liquidation of the bank, not without first requiring Filanbanco to absorb an insolvent bank (Banco La Previsora), and making Filanbanco give loans to other banks in difficulty. Faced with the declaration of forced liquidation, Filanbanco closed its doors to the public on July 30, 2002. On April 8, 2010, the Office of the Superintendent of Banks declared that its assets would be transferred to the BCE and its legal personality extinguished.

The Ecuadorian government, including then-President Rafael Correa, began to smear Roberto Isaias and William Isaias, and then began to instigate criminal charges. In June 2000 an arrest warrant was issued for the two brothers, despite the fact that the alleged charges were completely false.

2.4. Within the framework of the facts described, intense persecution came about against the authors as former shareholders and administrators of Filanbanco, including threats and defamation by the Office of the President of the country and other government officials, and the start of a criminal proceeding. The proceeding was started with the request sent by the Prosecutor General to the Chief Justice of the Supreme Court on June 16, 2000, for him to institute proceedings against the authors and other former Filanbanco officials for the offenses of bank peculation [peculado] (Article 257 of the Criminal Code in effect at the time of the perpetration of the facts; i.e. 1998), and forgery (Article 363 of the same Code), as well as several financial offenses provided for in the General Law on Financial Institutions. On June 22, 2000, the Chief Justice of the Court issued an order to begin instituting proceedings for the offenses mentioned by the prosecutor and ordered the authors remanded in custody. On June 26, 2000, the Chief Justice of the Court sent an arrest warrant to the General Command of the National Police, which order was appealed by the authors on June 27, 2000.

In 2002 the prosecutor filed amended charges, which eliminated the original accusations of “abuse of public funds” and peculation.

2.5. On November 20, 2002, upon completing the investigation of the facts, the Prosecutor General filed her Formal Charge, which amends her report of June 16, 2000 in light of the investigation. The Charge contains the accusation against the authors for financial offenses (false statements and authorization of unlawful operations), but states that there was no abuse of public funds belonging to the BCE (peculation) or bank peculation, since the granting of connected loans [creditos vinculados], be they related or intercompany, was classified as peculation (banking) only after the alleged facts.

The prosecutor’s amended charges were ignored. In 2003, the Chief Justice of the Court refiled charges and ordered Roberto and William Isaias to stand trial for bank peculation.

2.6. On March 19, 2003, the Chief Justice of the Court, departing from the accusation brought by the Prosecutor General, issued an order to stand trial for the offense of bank peculation. Against this order, the authors filed remedies of appeal and procedural nullity before the Chief Justice of the Court.

The First Criminal Division of the National Court handed down a decision that upheld the lower court’s decision ordering the brothers to stand trial. However, several judges in the First Criminal Division stepped back from the case, stating that they had received bribery attempts.

2.7. On May 12, 2009, the First Criminal Division of the National Court of Justice (National Court) upheld the order to stand trial. The authors requested supplemental information, clarifications, amendments, declarations of nullity, and the recusal of the judges. On October 28, 2009, the judges comprising the division decided to recuse themselves from continuing to hear the case, arguing that they had received bribery attempts. To replace them, three associate justices were named, who ruled on the authors’ appeals in a ruling dated January 15, 2010. Furthermore, they amended the order to stand trial dated May 12, 2009, arguing that the principles of lawfulness and congruence between the formal accusation and the judgment had been violated. Consequently, the authors should not be tried for peculation but for the offenses they were charged with in the formal accusation (balance sheets and forgery of documents).

The following year, the Chief Justice started disciplinary hearings against three associate judges who had tried to reduce the charges against Roberto and William. Even the president of Ecuador stepped in and asked for an investigation into the judges’ financial accounts. The Prosecutor General indicted the judges and a trial began, but it was dismissed for lack of evidence.

2.8. On January 19, 2010, the Chief Justice of the National Court of Justice suspended the three associate judges at his initiative due to “alleged irregularities that have generated social unrest, affecting the image of the Judicial Function,” and began disciplinary proceedings against them for changing the criminal classification with which the authors were charged. The President of the Republic asked the National Court of Justice to investigate the associate judges’ accounts and publicly declared that the National Court of Justice should dismiss them. On January 26, 2010, the National Assembly issued a resolution rejecting the ruling by the associate judges, and it exhorted the National Court of Justice to investigate their actions and decide on the corresponding sanctions. The associate judges wound up being indicted by the Prosecutor General in the National Court of Justice, removed and tried for the offense of perversion of justice [prevaricato]. The trial against them was nevertheless dismissed by the Second Criminal Division of the National Court on December 8, 2010, due to lack of evidence.

The government replaced the three judges by creating a new judicial entity that was created specifically to bring the Isaias brothers to trial.

2.9. The vacancy created by the removal of the associate judges was filled with the appointment of a “Criminal Division of Provisional Associate Judges of the National Court of Justice,” created specifically for this proceeding. The Constitution establishes a single category of associate judges in the National Court, who are selected with the same proceedings and the same responsibilities as regular judges; they are appointed by the National Court of Justice through a public competition (not hand-picked by the Chief Justice of the National Court); and their function is not that of judging a specific case.

The new judicial entity brought back all of the original charges against the Isaias brothers, including the charge of bank peculation.

2.10. On May 17, 2010, this Division declared the decision of January 15, 2010 non-existent and reinstated the charge of peculation. This was the only decision by the Division. After issuing it, its members returned to their private occupations as attorneys.

The alleged actions that the brothers were being charged for allegedly happened before 1998, when Ecuadorian law governing how people can be tried and prosecuted for the crimes for which the brothers were being charged with was different. However, the government proceeded in accordance with the newer Constitution and criminal code, which went into effect after the alleged crimes took place.

2.11. The facts involved in the proceeding occurred before 1998, when the Constitution of 1979 and the Code of Criminal Procedure of 1983 were in effect. According to Articles 254 and 255 of this Code, the proceeding is to be stayed until the defendants surrender or are captured for their trial. On August 11, 1998, a new Constitution went into effect, Article 12 of which set forth the trial in absentia of officials and civil servants in general accused of offenses of peculation, bribery, extortion and unlawful enrichment. The 2008 Constitution contains a similar provision. The authors were not public officials nor were they being investigated for the offenses mentioned. In addition, the facts with which they were charged had occurred before the Constitution of 1998, in spite of which the proceeding against them continued.

In August 2010, Ecuador got an international arrest warrant from Interpol. Roberto and William Isaias appealed, and it was denied. Ecuador then asked the U.S. to arrest and extradite them.

2.12. On August 3, 2010, the Second Criminal Division of the National Court ordered that the trial begin. In addition, it ratified the remand order for the authors and the order instructing police authorities and the Interpol to locate and apprehend them. On August 11, 2010, the authors’ appeals were denied, and the proceeding in absentia was ordered to begin. In parallel, the Government requested and obtained from Interpol multiple international arrest warrants against the authors, who were living in the United States. In addition, the Government asked the United States to extradite them.

In the spring of 2012, the court sentenced both brothers to 8 years in prison for their conviction of bank peculation. The two brothers used all legal remedies of appeal, nullity and cassation, but were denied.

2.13. On April 10, 2012, a judge of the Specialized Criminal Division of the National Court sentenced the authors to eight years of imprisonment for the offense of peculation. The remedies of appeal, nullity and cassation were denied on March 12, April 24 and October 29, 2014, respectively, by the Specialized Criminal Division. The Constitutional Court declared on September 17, 2015 contesting the processing of an extraordinary action for protection.

The Ecuadorian National Court quashed an appeal filed by the brothers, which (correctly) asserted that the court had wrongly convicted the brothers for bank peculation.

2.14. The National Court at its own initiative quashed the judgment on appeal that found the authors liable for the offense of peculation – due to misuse [malversacion] – as classified in Article 257 of the Criminal Code, deeming that said judgment erroneously interpreted that article and that the offense for which the authors were convicted was in reality bank peculation, as provided for in the same article. The penalty imposed was eight years in prison, with no attenuating circumstances, in light of the existence of the aggravating factor of acting as a gang [pandilla] to commit the offense.

Ecuador violated many constitutional rights guaranteed to William and Roberto Isaias, but Ecuador didn’t want to hear it.

2.15. According to the authors, the judgment on cassation worsens the violations of the Covenant since: (a) It violates the principle of lawfulness, by retroactively applying “misuse” as the form of the offense of peculation, a crime that had been decriminalized; it retroactively applied the least favorable criminal law, since it considered them active parties in the criminal classification of bank peculation, which at the time of the accusation applied to much more limited crimes; it applied the aggravating ‘gang’ factor, which was revoked in the current Organic Comprehensive Criminal Code; and applied the criminal classification of peculation, which is indeterminate and hinders the accused from defending themselves; (b) It violates the right of formal equality, by applying more burdensome penalties than those that would have been imposed in identical cases; (c) It violates the principle of non reformatio in peius, by imposing more burdensome penalties and different offenses than those contained in the judgment on appeal, thereby violating the right of defense; (d) It violates the right to be judged by independent judges, since the judges who decided the appeal on points of law had already participated in previous decisions on the same case or had publicly demonstrated partiality toward it.

In July 2008, the Deposit Guarantee Agency (AGD) passed a resolution ordering the confiscation of all assets of anyone who was an administrator or shareholder of Filanbanco up to December 2, 1998. Passage of the resolution was aimed squarely at the Isaias brothers.

2.16. In parallel with the criminal proceeding, a civil proceeding took place to confiscate assets, carried out by the AGD against the former shareholders and former administrators of Filanbanco, for the alleged purpose of guaranteeing payment of the credit of bank depositors at the time of its intervention. The proceeding was begun by means of Resolution AGD-UIO-GG-2008-12 dated July 8, 2008, which ordered the confiscation of all the assets owned by those who were administrators and shareholders of Filanbanco up to December 2, 1998. On this basis, with no prior administrative or judicial proceeding and with the support of law enforcement, the confiscation of more than 200 companies and other assets owned by the authors and other members of the Isaias Group began. In addition, on July 9, 2008, the Constituent Assembly, elected within the framework of the political proceeding led by the President of the Republic, issued Constituent Mandate No. 13, which it endowed with constitutional stature. This mandate ratified the legal validity of the above mentioned Resolution; it declared that the Resolution would not be subject to an action for constitutional protection or any other special action; and it ordered that the filed actions be closed, without compliance with being able to stay or prevent the Resolution. Judges hearing any class of constitutional action regarding this ruling and those made to enforce it should declare them inadmissible, or face removal, notwithstanding any criminal liability that may be pertinent. The Mandate also stipulated that it was not “open to complaint, appeal, action for protection, petition, claim or any administrative or judicial judgment or ruling whatsoever.”

The government’s Mandate No. 13 dictated that Roberto and William Isaias had no legal right of appeals or any other legal remedy. It even forbade Ecuadorian judges from even hearing motions from the brothers. As a result, the conviction, sentencing, and asset seizures were locked in with no way to reverse them.

2.17. The precedent for Mandate No. 13 is Constitutional Mandate No. 1, dated November 9, 2007, which prohibits oversight or appeal of the decisions of the Constituent Assembly. This Mandate stipulates that judges and courts that process any action contrary to those decisions will be removed and face trial. On June 10, 2010, Roberto Isaias Dassum filed a petition of un-constitutionality before the Constitutional Court against Mandate No. 13 which was dismissed on June 21, 2012, based on the immunity enjoyed by the Mandate.

The AGD resolution against the brothers was crystal clear: all of the brothers’ assets, regardless of their relationship with the actual Filanbanco bank, were up for grabs by the government.

2.18. The remedies filed by the authors against the Resolution and others that followed aimed at confiscating assets were unsuccessful. The Resolution states that all assets of the authors were subject to confiscation, including those that were not earmarked for the operation of Filanbanco or any other company in that economic group, i.e. also those allocated for the authors’ personal use. In addition, the confiscation encompassed assets that were deemed property of the authors according to public knowledge, i.e. regardless of the title indicated in the respective property deeds.

The complaint

Roberto and William Isaias argued that their rights of due process, equality under the law, the right not to suffer a retroactively applied unfavorable criminal law, and the right to personal liberty were all violated.

3.1. The authors argue that the irregularities occurring in the criminal proceeding and in the proceeding to confiscate their assets resulted in violations of their right to the judicial guarantees of due process under Article 14, paragraphs 1, 2 and 3 c), separately and in relation to Articles 2, paragraphs 1 and 3 a); and the right of equality before the law and of non-discrimination under Article 26; the right not to suffer a retroactively applied unfavorable criminal law, under Article 15; and the right to personal liberty pursuant to Article 9 of the Covenant.

3.2. The case is not pending before another international court and the domestic remedies in the criminal proceeding have been exhausted. With respect to the confiscation proceeding, no appropriate judicial remedy exists, since Constituent Mandate No. 13 excluded any judicial action or remedy.

Complaints regarding Articles 14 and 26

During the criminal trial, Ecuador’s government violated numerous individual rights that should have been enjoyed by the brothers.

3.3. In the criminal proceeding, Ecuador violated the authors’ rights to: (i) be judged by a competent, independent and impartial court, established by law; (ii) being presumed innocent until proven guilty; and (iii) being judged without undue delays.

The brothers brought up another legally valid point: the three judges who had been removed and prosecuted had wanted to NOT process the brothers for bank peculation. Their removal was arbitrary and violates the country’s constitutional guarantees of judicial independence.

3.4. The decision by the three permanent associate judges of the First Criminal Division of the National Court not to process the authors for the offense of bank peculation prompted their removal and prosecution. Such arbitrariness infringes the judicial independence stipulated in Article 14(1) of the Covenant.

The court that was convened to process charges against the brothers was ad hoc and created solely for that purpose, the brothers argued.

3.5. The panel of provisional associate judges created specifically for this proceeding reestablished the charge of “bank peculation.” This decision was made only ten days after the associate judges were sworn in, despite the complexity of the case, the size of the case file and after 10 years of duration of the case. It was the only ruling issued by this panel. It was an ad hoc court, therefore, created in violation of the requirements provided for by law for the sole purpose of issuing a ruling against the authors. Whatever the basis of domestic law that is invoked for the constitution of this “temporary” court, it is unlawful for it to have been exclusively to take the place of the three associate judges who were arbitrarily suspended and removed. Consequently, the appointment of this panel violated the principle of a “competent court established by law.”

In 2010, Roberto filed a motion to revoke the appointment of the new temporary judges, and asked that they recuse themselves.

3.6. On May 10, 2010, Roberto Isaias requested the revocation of the appointment of the temporary associate judges. On May 11 and 20, 2010, respectively, he requested that these associate judges recuse themselves from hearing the case and appealed the decision that reinstated the accusation of bank peculation, arguing violation of the right to be judged by a competent, independent and impartial court.

The Isaias brothers also argued that they should have been tried in Guayaquil, which is where they were from – not in a national court.

3.7. The guarantee of the natural judge was also violated, since, because they were domiciled in Guayaquil, the authors should have been tried by an ordinary court in the District of the Guayas. However, the case against the authors was joined to those of other persons who had venue, so as to take the proceedings to the National Court.

In 2009, Ecuador strategically added an amendment to the Code of Criminal Procedure which prohibited the recusal of judges from cases processed under the 1983 code, which was the set of laws by which the Isaias brothers were specifically tried.

3.8. Violation of the right to an impartial judge or court occurred also due to the prohibition for the authors to recuse judges. This prohibition was the result of an amendment to the Code of Criminal Procedure introduced in 2009 establishing an absolute impediment to the recusal of judges on cases begun and processed under the Code of 1983, which was the one applicable to the case against the authors.

All along the process, the government treated the brothers as guilty — not as innocent until proven guilty, which is what it should have been.

3.9. The authors’ right under Article 14(2) of the Covenant to the presumption of innocence was violated as a result of: (i) repeated statements by the highest officials of the Executive Branch asserting their guilt; and (ii) the treatment that the authors received as guilty parties during the proceeding, even before being judged in the trial phase. Already in the order opening the trial the Chief Justice of the Supreme Court asserted that “it had been determined in the trial” that the authors “had committed” acts that “constituted offenses that are means for the perpetration of the offense of bank peculation.” These and other assertions of the same tenor implied considering the authors’ guilt as proven before starting the oral trial and put them in the position of having the burden to show during the rest of the proceedings that they were not guilty.

Seven years passed between the start and end of the trial, which violated Ecuadorian law mandating that appeals be ruled on within 15 days (plus one additional day for every 100 pages of the case file).

3.10. The right of the authors to be judged without undue delays was infringed by the unreasonable duration of the proceeding: (i) four years after the occurrence of the charged facts and two years after the start of the proceeding, in order for the formal accusation to be issued (November 20, 2002); and (ii) more than six years to rule on the appeal against the order opening the trial, even though the law stipulates that it must be ruled on within 15 days plus one additional day for every 100 pages of the case file. Between the formal start of the trial and its ratification by the panel of temporary associate judges more than seven years passed.

Ecuador illegally used the brothers’ absence from the country as grounds for delay in the criminal proceedings.

3.11. The authors’ absence from the country cannot be invoked as grounds for delay in the criminal proceeding, for two reasons: a) the State chose to judge them in absentia, even though its own Constitution prohibited it; and b) upon leaving Ecuador, the authors exercised their lawful right to safeguard their liberty, integrity and safety in view of the abuse of power to which they were subject.

The AGD’s resolution was passed without allowing the brothers to come before the agency and argue their case, which violated numerous Ecuadorian laws.

3.12. In the confiscations proceeding, the right to due process also was violated. The AGD is an administrative body that does not elude the scope of Article 14 of the Covenant when it engages in activities designed to determine civil rights and obligations. Bearing this in mind, the lack of an adversarial administrative proceeding before the AGD, where ether authors could exercise their right to defense before the AGD decided to confiscate their assets violated the guarantees of due process (Article 14(1) and (2) of the Covenant). The State shielded the legal weakness of Resolution AGD-UIOGG-2008-12 through Mandate No. 13, endowing it with jurisdictional immunity. This immunity presupposes a violation of the right of access to justice, to due process and to equality before the law and the courts to claim civil rights, specifically the property rights of the authors as former owners and shareholders of Filanbanco. Mandate No. 13 also violates the right to due process in relation to Article 2, paragraphs 1 and 3 a) of the Covenant, in not respecting the right to file an effective appeal and the right of the authors to equality before the court. For the same reasons the Resolution and Mandate No. 13 jointly violate the right of equality before the law and non-discrimination as provided for in Article 26 of the Covenant, in denying access to justice for specific persons for them to claim their rights.

Complaints concerning Article 15

The brothers were illegally charged with a crime that was applied ex post facto.

3.13. The authors are victims of the violation of this article due to: (i) their being subject to the application ex post facto of a new criminal classification and (ii) a criminal classification was applied to them which had already been revoked at the time of the start of the trial phase of the criminal proceeding.

The National Court applied the revoked criminal classification (Article 257) to the authors. Additionally, the government amended the criminal code to include a new crime of “special bank peculation” after the alleged illegal behavior of the two brothers took place.

3.14. By means of Law No. 99-26 of May 13, 1999, i.e. after the charged facts took place, the Criminal Code was amended to include the criminal classification of “special bank peculation” (Article 257-A), which did not exist until then and which implies the execution of loan transactions with related companies. This amendment shows that, prior to it, the conduct described by this offense was not punishable. Until that date, both the banking legislation and the criminal law expressly allowed those transactions within certain limits. Now, the National Court applied the revoked criminal classification (Article 257) to the authors, yet changed its interpretation and classified under it related-party and intercompany transactions. The prohibition of retroactive application of Article 15(1) of the Covenant cannot be avoided through an extensive or wrongful interpretation of an old law for the purpose of endowing the new law with retroactive effect.

The court’s actions violated Article 15(1) in fine of the Covenant, which protects the right to retroactive application of the most favorable criminal law.

3.15. Furthermore, the authors were charged with having authorized the use of the liquidity loans granted by the BCE to Filanbanco for purposes other than those provided for by law. This conduct dovetails with the legal definition of misuse. Now, Law 2001-47, “decriminalized” misuse of public or private funds as a form of peculation, before the order to stand trial was issued against the authors in 2003. So there is a violation of Article 15(1) in fine of the Covenant, which protects the right to retroactive application of the most favorable criminal law. This is despite the fact that the Supreme Court avoided employing the term “misuse,” instead using the terms “arbitrary disposal of public funds” and “fraud” through the “authorization of unlawful financial transactions.”

The government also violated laws and rules prohibiting retroactive application of laws during the AGD confiscation proceedings.

3.16. In the confiscations proceeding started on July 8, 2008, there was also retroactivity contrary to Article 15(1), since the legal basis used by the AGD was Article 29 of the Law of Reorganization on Economic Matters in the Financial Tax Area, introduced therein in 2002.

Complaints concerning Article 9

The manner in which Ecuador remanded the brothers into custody violated the rights of personal liberty.

3.17. The judicial decision of remanding the authors into custody, although not consummated, is an arbitrary measure by the State contrary to Article 9 of the Covenant. In order for individual liberty to be violated, it is not always necessary for an order of remand into custody to be executed materially, nor does the person subject to an arbitrary detention order against him have to suffer incarceration. The mere issuance of the imprisonment order of June 22, 2000 and of an international arrest warrant, as well as the other proceedings to obtain capture, such as extradition proceedings, within the framework of an irregular, arbitrary criminal proceeding devoid of the least judicial guarantees, violates the right to personal liberty.

The State party’s observations on admissibility

The state asserts that in the criminal proceeding (which began in 2000), the “necessary judicial guarantees were provided.”

4.1. In its observations of December 4, 2013 and December 10, 2015, the State party sets forth the differences between the criminal proceeding (started in 2000) and the confiscations proceeding (started in 2008). Within the former, the necessary judicial guarantees were provided, since the criminal case is directed against natural persons for presumably criminal activities governed by the Criminal Code. On the other hand, the facts associated with the confiscation of assets originate with business activities and actions related to the assets of legal persons. Given that in the proceeding before the Committee, the only complainants are the authors, no domestic action other than these may be introduced in said proceeding. Only natural persons have the right to the international protection of human rights. Consequently, proceedings having legal persons as plaintiffs, wherein their rights and obligations in relation to national laws are discussed, must remain outside of the subject of the communication. In addition, it is not fitting to discuss actions that have been filed by persons other than the authors, whether legal or natural.

4.2. Although the communication alleges the violation of rights under the Covenant, it does so from the presumed confiscation of assets of companies or groups of companies, which pertains to legal persons. The authors attempt to extend the rights of the Covenant to defend legal persons’ rights. For this reason, the Committee must declare its lack of jurisdiction over any administrative, legal or jurisdictional fact involving companies or business groups. In addition, the allegations associated with the rights of ownership of shareholders, administrators, companies and corporate units such as the Isaias Group are for the purpose of protecting an alleged property right, meaning the allegations related to the confiscation proceedings must be found inadmissible by the Committee due to the subject matter.

Ecuador opposes the Isaias brothers’ application with the Inter-American Commission on Human Rights.

4.3. The authors filed an application with the Inter-American Commission on Human Rights. Its processing took place with the ruling not to open the case due to not meeting the requirements for its consideration nor the exhaustion of domestic remedies. The Commission performed a prolix analysis of the petition and adopted a final decision duly notified to the complainants. Consequently, it is up to the Committee not to hear the communication, in accordance with Article 5, paragraph 2 a) of the Optional Protocol.

The government weakly argued that because the brothers were abroad in the U.S., the obligations of the state to its own Covenant “cannot be enforced.”

4.4. The communication lacks support insofar as the State’s obligations in accordance with the Covenant, given that the authors are not within Ecuadorian territory and therefore the obligations of the Covenant cannot be enforced on the State party. For the same reason, the authors are not subject to the State’s law enforcement.

The government further defended its actions because “different public supervisory institutions” issued extensive reports on the alleged criminal activity.

4.5. The Optional Protocol stipulates as an exception to the exhaustion of remedies unjustified delay in the processing of a remedy. In this case, the complexity of the proceeding must be taken into account, in which it was necessary to request and subsequently analyze extensive technical reports (outside audits) and reports by different public supervisory institutions (Central Bank, Anti-Corruption Commission, Office of the Superintendent of Banks, and the Office of the Supervisor of Banks). In addition, the proceeding was carried out within a reasonable time period if we take into account the intense procedural activity by the authors, who filed every type of remedy within the criminal proceeding in accordance with domestic law.

The government claims that the brothers’ appeal activity is a “clear example of an abuse of the right that they have to submit a communication.”

4.6. The authors have come before the Committee without taking into account the objective of the Covenant and the Optional Protocol, obstructing the work of hearing individual petitions submitted before this body. It is a clear example of an abuse of the right that they have to submit a communication.

State party’s observations on the merits

The state argued that the Isaias brothers’ questions about judicial independence was “merely the result of their dissatisfaction with court decisions.”

4.7. Any argument by the authors questioning the independence of the judges and courts is merely the result of their dissatisfaction with court decisions and does not derive from the obligations set forth in Article 14 of the Covenant. Article 182 of the Ecuadorian Constitution stipulates the figure of associate judges as part of the judicial structure, with the same rank and the same regime of conflicts of interest and responsibilities in the performance of their functions as regular judges. Based on the regulatory power of the Full National Court, contained in the Ruling by the Constitutional Court for the transitional period, the status as binding constitutional case law for all civil servants and private individuals, the Substitute Ruling on the Composition of the National Court date December 22, 2008 was issued, Article 11 of which determines the legitimate, legal and constitutional activity of the associate judges of the National Court. This provision states that “in the absence of permanent associate judges, temporary judges can be called upon to hear a given case. The appointment will fall to the judges comprising the Division where it is tried and absent them, to the Presiding Judge of the respective Division.” Consequently, the right of any person to be heard by a competent court has not been violated. Furthermore, the recusal of judges as a tool of procedural guarantee is in effect in Ecuador.

Although then-President Rafael Correa made numerous public statements saying that the brothers were guilty, the government argues that those statements don’t affect the brothers’ presumption of innocence.

4.8. There was no violation of the principle of presumption of innocence due to the statements of the President of the Republic, made in a space intended for informing citizens about his activities and the policies of the Government, which space represents the freedom of expression of all citizens, including the chief executive, whose personal opinions about a given subject do not imply influence over judges and courts.

The government also continued to defend the legality of charging the brothers with bank peculation.

4.9. With respect to the complaints regarding Article 15, the offense of peculation was already classified in the criminal code of 1938, subsequently amended in 1971 (Article 257). This provision was amended once again in 1977. In keeping therewith, “servants of state or private banks” began to be considered as active parties, and even included shareholders, administrators, and employees. This made it possible to prosecute the authors and other bankers of the time. The judge deemed the authors to be private banking servants who were active as President and Vice President of Filanbanco, and who according to the judgment on appeal “abused public funds, i.e. the liquidity loans granted by the Central Bank (…) subsuming their conduct under the offense of peculation classified and sanctioned in the first and second sections of Article 257”. Subsequently, the law of May 13, 1999, added a third section to this article, including therein “officials, administrators, executives or employees of institutions of the private financial system, as well as directors or members of the supervisory boards and boards of directors of these entities.” The amendment clarified what was previously stipulated in relation to active parties under the criminal classification. The lawmaker, in view of the social unrest created by the serious economic, social and political consequences of the banking crisis of 1998, sought through this amendment to expressly determine the active parties of the offense, without this implying that the previous provision had not contemplated them.

Ecuador also defended the legality of the AGD’s confiscation order and the work done by the Banking Board.

4.10. With respect to the confiscations proceeding, the AGD and the Banking Board observed the principle of legality. Specifically, AGD Resolution 153 of July 31, 2008 contains the instructions for the Confiscation of Assets and guarantees processing with observation of the rules of due process, wherefore there is no violation whatsoever of Article 14(1) of the Covenant in relation to the equality of persons before the courts. Moreover, the confiscations system had procedures for proving the lawful origin and the real ownership of the assets confiscated. The AGD in the alleged abusive exercise of power could have been subjected a review of administrative remedies contained in the Law on Administrative Courts.

Ecuador’s government completely rejects any argument that Constituent Mandate No. 13 was unconstitutional.

4.11. With respect to Constituent Mandate No. 13, Ecuador rejects the authors’ argument regarding its unconstitutionality and unlawfulness. The Constituent Assembly was not a state body but rather a supra-state, whose mandate derives directly from the people’s will. According to the democratic principle, this will is of a different nature and clearly superior to the State. According to Article 2.2 of its Regulations, “the Constituent National Assembly will approve Constituent Mandates that restrict its decisions and provisions in the exercise of full powers. The Mandates will have immediate effect notwithstanding their publication in the respective medium”. The Assembly considered the complex financial and administrative situation of Filanbanco and emphasized the importance of the management of State institutions (AGD), considered part of the expression of the powers constituted in the eradication of any form of impunity. These circumstances legitimized the asset confiscation proceeding. Within Mandate No. 13, the Assembly issued measures for the protection of the rights of workers at companies under receivership [empresas intervenidas], through a Resolution dated July 8, 2008. The Resolution and Mandate No. 13 are acts by the State that contain ad-hominen legal provisions, since they do not refer to natural persons, as the authors maintain.

The extradition proceedings were in accordance with the law, according to Ecuador — even though the U.S. initially rejected extradition of the brothers back to Ecuador.

4.12. Since the authors are neither under Ecuador’s jurisdiction nor within its territory, facts related to alleged violation of Article 9 of the covenant cannot be attributed to Ecuador. With respect to the extradition proceeding, in June 2013 the United States State Department informed the Ecuadorian State of its refusal to extradite the authors, indicating that Ecuador had to provide sufficient evidence to find probably cause for the offense charged, and that the Departments of State and Justice would give subsequent consideration to the extradition request.

4.13. The State party recalls the Committee’s jurisdiction in the case Gonzalez del Rio v. Peru (communication 263/1987), according to which the issuance or existence of a remand order does not in and of itself constitute custody. This case law reaffirms that the scope of protection of the right in question is physical liberty and that its violation not only requires that detention of the affected person be carried out but also that such detention be illegal and/or arbitrary. To the extent that the competent judge issues a remand order in accordance with legal provisions and justifies the existence of evidence of existence of the offense and participation by the defendants in its perpetration, as it appeared in the warrant to initiate proceedings issued in the criminal proceeding against the authors, the precautionary measure of remand into custody is justified. The order dated June 22, 2000 justified the order for remand into custody due to non-compliance with the law by Filanbanco, for during the effective period of the loans granted by the Central Bank, these were not used to safeguard the stability of the financial system, but to invest in prohibited transactions. Throughout the criminal proceeding, the order for remand into custody was analyzed periodically by the judges on the case for the purpose of verifying its nature and ensuring that the defendants appeared in court. Each ratification of the order met the legal requirements and was justified by the evidence of the existence of offenses. Furthermore, the effective period of the orders for remand into custody weighing on a person who is a fugitive cannot be computed, for the order itself does not constitute a limitation of their physical liberty, nor can it prove or become unlawful or arbitrary.

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