CNJ ruling ‘favors suspects’, prosecutors and Police question

Even when they already have the suspects located, a dilemma prevents prosecutors from requesting arrest warrants from the judges for “investigative purposes” for those possibly responsible for crimes, such as violent deaths, drug trafficking or organized crime.

“In honor of the truth, not even a version has been taken from them (from the suspects), because there are judges who do not grant arrests; sometimes we have to see who are the judges on duty, some are super legalistic, others are more flexible,” commented a prosecutor.

The dilemma arises as a result of a ruling that, according to some prosecutors, “favors the suspects” who have been detained for investigative purposes, whom, within 24 hours of said detention, the prosecutor accuses in an indictment hearing.

“The authorities are exaggeratedly guaranteeing, interpreting the rules, looking after the rights of suspects or defendants more than the rights of citizens,” commented one prosecutor, while another assured that “that is why people complain that criminals have more rights than the police, than the victims”.

The controversial sentence was issued by a majority of two judges of the Specialized Administrative Litigation Chamber of the National Court of Justice (CNJ), Milton Velásquez Díaz and Fabián Racines Garrido, on October 1, 2021. In that ruling, the judges partially agreed with Óscar Coral Yanascual, a Colombian who filed a habeas corpus petition in September to claim his freedom. He argued that his imprisonment had been issued illegally.

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Coral was detained for investigative purposes – a legal figure that is only valid for 24 hours – but within that time the prosecutor on duty requested the hearing to formulate charges and in it he requested preventive detention against him, this within the framework of an alleged crime of sexual abuse.

In the case analysis, the CNJ magistrates indicated that the detention of the suspect should only fulfill the purpose of the investigation, after which “the Prosecutor’s Office should immediately release the detainee.” Once free, if the Prosecutor’s Office considers that it has evidence to accuse the alleged perpetrator, it can request that the judge convene a hearing to formulate charges, but You must notify the person involved 72 hours in advance.

“The duty is to notify the accused and the defense attorney sufficiently in advance… since otherwise the right of people to present their positions, to be heard by the courts, or to present their arguments or defense evidence is not guaranteed” , is indicated in the resolution of the judges of the CNJ.

Based on this sentence, some lawyers have demanded the freedom of their clients, says the Guayas prosecutor, Gian Carlos Almeida.

They capture someone involved in the murder of a Dutch tourist; He was riding a motorcycle under a false identity.

“The lawyers allege violation of the right to defense, because they have not been notified to defend themselves, to give a version. Obviously they mention that resolution”, commented this prosecutor of the Unit against Transnational and International Organized Crime (Fedoti).

The then Police Commander, Tannya Varela, referred to this resolution last January, assuring that 65 assassins have been located, but they cannot be arrested, because in order to accuse them in an indictment hearing, they must be notified 72 times. hours in advance.

“The Law is essential. For example, in the case of the death of the Dutch citizen in Guayaquil, we know who is to blame, we have identified him, he is a consumer who has six records, “said Varela. This case is not treated as a flagrant crime (in which the suspect is arrested within 24 hours of the crime).

The flagrancy is over, so we go hand in hand with the Justice, but the moment we locate this citizen (the person responsible) we have to notify him and tell him that we are going to initiate a murder investigation

Tannya Varela, former Police Commander

In the case of the Dutchman, those responsible were arrested in routine police operations. (I)

Sentence on detention is not binding, there is a saved vote, say judges

The judicial resolution, although it is majority, is not binding, several judges consulted agreed with respect to the sentence of the Contentious and Administrative Chamber of the National Court of Justice, which indicates that a person detained for “investigative purposes” cannot be accused within the 24 hours that the detention lasts, but he must be released and notified, 72 hours in advance, that he will be called to an indictment hearing where he will be charged as allegedly responsible for a crime.

“It should not be seen as a binding decision, a majority resolution of that nature cannot be followed, the lawyers rely on that to get away with it” commented one judge while another added that “these arguments of the lawyers should be rejected , there is no binding or obligatory criterion of this room”.

The president of the Ecuadorian Association of Magistrates and Judges (AEMJ), Vinicio Palacios, indicated that this issue has been “quite controversial,” and explained that prosecutors have abused the legal concept of this detention. “What they do is issue this arrest warrant for investigative purposes and begin to gather the elements that the Prosecutor’s Office could consider and the sole purpose is to seek the preventive detention of the person, it is not really an investigative purpose, it does not fulfill the essential function of search for a version, to investigate. He has abused that right,” Palacios commented.

As they are judgments dealing with constitutional rights and guarantees, Palacios added, “It is not that it is binding for other cases, but it does enrich the legal system, and it can reach the Constitutional Court, gather other cases and issue an opinion that would already be binding and mandatory”. He also stressed that “detention for investigative purposes is not a trap to have a person arrested and charge him right there and ask for a prison sentence.”

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Palacios recalled that “there is a constitutional principle of innocence,” and stressed that, as demonstrated by the Prosecutor’s Office in its investigation, the judge can request preventive detention considering the dangerousness of the suspect and the need for his appearance at the hearing to formulate charges.

In the controversial sentence there is a saved vote of Judge Iván Larco Ortuño, who pointed out that the prosecutor is in charge of the criminal action and must look for the evidence to accuse a suspect, as happened in the case analyzed by the CNJ.

The criteria reflected in the majority vote according to which the suspect should be released once the 24 hours of his detention have expired, in order to subsequently notify said suspect 72 hours in advance for the holding of the hearing to formulate charges, the only thing that would be done is to promote or encourage the escape of the suspect

Iván Larco Ortuño, judge.

With this, he added, the measures of the Organic Comprehensive Criminal Code (COIP) would be “denaturalizing” to ensure the presence of the person under investigation at the hearing. This, lamented Larco, “means favoring formalities over guarantees in favor of the victim that our Constitution proclaims.”

Other judges supported the save vote. “The sentence is illogical, an illogical resolution becomes illegal,” said a court judge, while another said that “they can be very judges of the National Court, but you have to be serious and logical, notify 72 hours, you don’t have sense”. (I)