The International Human Rights Framework on the Right of Peaceful Assembly
Ecuador is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Ecuador is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
On 23 March 2020, Ecuador informed the UN Secretary-General that as a consequence of the COVID-19 pandemic it had declared a state of emergency throughout its territory for a period of 60 days by Executive Decree 1017 of 16 March 2020 and that thereby it had derogated from the right of peaceful assembly. It has continued to derogate from the ICCPR.
At regional level, Ecuador is a State Party to the 1969 Inter-American Convention on Human Rights (ACHR). Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
Ecuador has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of Ecuador that their rights under the ACHR have been violated.
Ecuador derogated from certain provisions in the ACHR in March 2020 as a consequence of the COVID-19 pandemic. It has continued to derogate from the ACHR.
The Domestic Legal Framework on the Right of Peaceful Assembly
Under Article 66(13) of the 2008 Constitution of the Republic of Ecuador, the rights to assemble and express oneself freely and voluntarily are guaranteed.
No specific law in Ecuador regulates public assemblies. The use of public spaces is regulated at municipal level, with municipalities typically requiring advance notice of demonstrations. It is not stipulated how many days in advance of an assembly notification is required or what information the organiser must provide. There is a presumption of approval where the authority does not respond.
Since advance notice is required, spontaneous demonstrations are not allowed. Spontaneous protests are said to be punishable with fines and even imprisonment. Article 153 of the Penal Code provides that:
Whoever promotes, directs or organizes parades or public demonstrations in streets, squares and other open spaces, whenever done without written permission from the competent authority, … shall be punished with imprisonment of one to three months....
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
The 2009 Law on Public and State Security requires that the security forces respond in a proportionate manner to security threats.Art. 4(d), Ley Org. No 1, 2009.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
The Criminal Code of the National Police gives a broad exemption from responsibility to the police for the use of force, including lethal force.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2016 Concluding Observations on Ecuador, the Human Rights Committee expressed its concern at alleged excessive use of force at demonstrations. While noting that, during the public demonstrations that took place in 2015, some demonstrators resorted to violence against security forces and law enforcement officials, the Committee was nonetheless concerned
at allegations that, in some cases, police or army officers resorted to an excessive use of force to respond to such violence or to disperse demonstrations. It therefore regrets not having been told whether these allegations have been investigated. The Committee is further concerned about allegations that criminal proceedings have been instituted on the basis of broadly worded offences contained in the old Criminal Code, such as sabotage and terrorism, against persons who participated in social protests and other public demonstrations.
The Committee regretted "not having received any information on the number of persons charged with terrorism or sabotage under either the old Criminal Code or the new Comprehensive Organic Criminal Code in connection with social protests or other public demonstrations during the reporting period". The Committee called on Ecuador to
adopt appropriate measures to ensure that all persons under its jurisdiction can exercise in practice their right to freedom of peaceful assembly; redouble its efforts to prevent and eliminate all forms of the excessive use of force by law enforcement officials and members of the security forces; and take appropriate action to ensure that all allegations of the excessive use of force are investigated thoroughly, independently and impartially and that the alleged perpetrators are brought to justice and, if found guilty, punished commensurately with the seriousness of their actions.
On 14 January 2020, the Inter-American Commission on Human Rights (IACHR) published a report on their mission to Ecuador between 28 and 30 October 2019 to observe the human rights situation in the country in light of the massive protests against austerity which took place earlier that month. In its report, the IACHR stated that protests “in certain cases, were repressed by the government through the excessive use of force, mainly against members of Indigenous communities who joined the demonstrations in Quito and in their ancestral territories”.
Views of Civil Society
According to Freedom House's 2019 report on Ecuador:
Numerous protests occur throughout the country without incident, and restrictions on assembly rights have eased under President Moreno. However, national security legislation provides a broad definition of sabotage and terrorism, extending to acts against persons and property by unarmed individuals, which can be used to limit assembly rights.