Void in the law would be the cause of ‘abuse’ of habeas corpus, according to legal professionals

The cases of the former vice president George Glas; one of the leaders of the band Los Choneros, aka Junior; and a citizen dutch with red spread of the Interpol are the most recent in terms of granting habeas corpus by judges who ordered release from prison for other measures such as house arrest.

Political actors, lawyers, experts in criminal law, the Public Prosecutor’s Office and government authorities have spoken out about this resource that benefited the two detainees who were serving sentences executed and the other with an extradition process.

Jorge Glas received the habeas corpus by Judge Javier Moscoso on April 9, 2022. Later it was Júnior Roldán Paredes, alias Júnior, the judge who granted the appeal was Pedro Moreira, on April 20. Finally, the Dutch Vokshi N. received the habeas corpus by Judge Érika Moriel, on April 20.

According to article 43 of the Organic Law of Jurisdictional Guarantees and Constitutional Control, the action of habeas corpus Its purpose is to protect the freedom, life, physical integrity and other related rights of the person deprived or restricted of liberty, by public authority or by any person such as;

1. Not to be deprived of liberty illegally, arbitrarily or illegitimately, protection that includes the guarantee that the detention is always carried out by written and reasoned order of a competent judge, except in cases of flagrancy.
2. Not to be forcibly exiled, banished or expatriated from the national territory.
3. Not to be forcibly disappeared.
4. Not to be tortured, treated in a cruel, inhuman or degrading way.
5. That, in case of being a foreign person, even before having applied for refuge or political asylum, not to be expelled and returned to the country where they fear persecution or where their life, freedom, integrity and security are in danger.
6. Not to be detained for debts, except in the case of alimony.
7. To the immediate release of the prosecuted or convicted person, whose release has been ordered by a judge.
8. To the immediate release of the accused person when the preventive detention has expired because six months have elapsed in crimes sanctioned with prison and one year in crimes sanctioned with imprisonment.
9. Not to be held incommunicado, or subjected to treatment that violates their human dignity.
10. To be placed at the disposal of the competent judge or court immediately and no later than twenty-four hours after his arrest.

The trial lawyer in criminal matters Robert Calderon pointed out that the Constitution of the Republic established that the habeas corpus was granted by the mayors, this until 2008, when it was decided to pass this power to the judges, relying on their knowledge of constitutional matters, in the new Constitution.

However, it pointed out that this resource was applicable to people who were deprived of liberty within a criminal proceeding, not for those who already had a conviction, that is, the criminal process is over.

The law would explain how to act in the cases of people who do not have a final sentence, but for who already weighs a sentence says nothing, he explained. “There are some resolutions of the Constitutional court who say that the prison criminal guarantee judges, or in the absence of it, the multi-competent judge units will be able to decide”, he added.

In Calderón’s opinion, the judges tried to fill this “legal vacuum”, when the correct thing would have been to inform the Assembly so that it reforms the Organic Code of Jurisdictional Guarantees and Constitutional Control, indicating how to act on that decision.

Article 44, numeral 1, on the procedure for the action of habeas corpus It says that “the action can be filed before any judge of the place where the person is presumed to be deprived of liberty. When The place of deprivation of liberty is unknown, the action may be filed before the judge of the domicile of the plaintiff.

“They make use of this by saying, since I live in Manglaralto, or wherever, I am going to present in that place,” Calderón emphasized.

“With so many twists and turns, the law becomes inefficient. In the cases that we have seen lately, this competence that is given to the judges has allowed a abuse of right because it is being used for something other than the one foreseen by virtue of the fact that, if these are the circumstances to set someone free or send them home, then in the same circumstances will be 70% of prisoners in our prisons,” he added.

For the criminal law expert Sebastian Cornejo, The problem is that the sentence of the Constitutional Court is “too guaranteey, leaves an open sphere for anyone pose that measure of habeas corpus”.

He pointed out that the lawyers are justifying said resource under health issues, that is, a habeas corpus preventive or corrective and also under issues of imminent possibility of aggression in prisons.

“There we must also understand that, if we do not want to grant the concession of these habeas corpusthe social rehabilitation system should offer what is necessary for persons deprived of liberty. That is, to provide attention, security so that they do not ask for the habeas corpusbecause this resource is requested affirming that the system does not provide these facilities to persons deprived of liberty”.

The solutions, according to experts, are to establish application limits of the resource for those deprived of liberty, to avoid confusion and bad applications taking advantage of legal loopholes. Also strengthen the social rehabilitation system to guarantee health and safety to prisoners.

For Calderón, the Government did not emphasize the abuse of legal resources to reduce the overcrowding in prisons.

“The problem is created for the Government when we have two prisoners of high social connotation who are abusing the right to be able to use these guarantees; meanwhile, all the cases of people who have used them improperly have been made invisible because in some way it was convenient, due to the fact that new penitentiary units are not being built, ”he emphasized.

According to data from the trial lawyer, “in Guayaquil alone there are 160 permanent house arrest control points. For each point, there are three policemen, if we multiply the policemen by the number of points, we get a total of 480 policemen at the service of criminals, taking care of them. These 480 police with an average monthly salary of $1,500 for twelve months gives us a total of $8,640,000. When you could buy electronic shackles with two million and those police officers could be serving for order and security tasks.” (I)