Crushing Glas Along With Ecuador’s Rule of Law

Joe Emersberger interviewed Ecuadorian legal scholar Oswaldo Ruiz-Chiriboga about the imprisonment of deposed Ecuadorian Vice President Jorge Glas who just ended a 52 day hunger strike. Ruiz-Chiriboga teaches human rights and constitutional law at the Central European University in Hungary. Ruiz-Chiriboga explains what a travesty of justice Glas’ trial and subsequent imprisonment have been. This is totally unsurprising if you read a previous interviewin which Ruiz-Chiriboga described how the government of Lenin Moreno has trampled all over Ecuador’s constitution and judicial independence.

Joe Emersberger: A Reuters articleby Alexandra Valencia says Glas was “found guilty and sentenced to six years in jail on charges he pocketed a roughly $13.5 million bribe from Odebrecht.”

Oswaldo Ruiz-Chiriboga: That’s completely false. The criminal trial was not about Glas taking a bribe. That’s a lie. It was about “illicit association”. The money that was alleged to have been taken was not found anywhere. That’s because Glas did not take anything. The “illicit association” was supposedly a plan whereby money transfers went to other people including an uncle of Mr. Glas. The only evidence that Glas was one of the commanding officers of this “illicit association” is the testimony of Mr. Conceiҫão Santos. José Conceiҫão Santos was the CEO of Odebrecht in Ecuador. His testimony was given before the prosecutor. Glas never had a chance to question that witness. Can you imagine the accused not being able to question the star witness of the prosecution?  Then that testimony was used heavily in the judgement against Glas. That’s simply a violation of all due process of law guarantees.

JE: Glas never got to cross-examine Santos?

ORC: He was not able to cross-examine him. That’s one of the main problems with the decision against Glas.

JE: How did they justify that? What argument did they use?

ORC: What they are saying is that Conceiҫão Santos was not in Ecuador so his testimony was given by different means – and in the pre-trial phase of the proceedings.  But that’s no excuse because if the testimony was given in pre-trial proceedings then the proper thing to do was to question that person again before the judge. Then the defense would have the opportunity to cross-examine the witness. So why did the judge and the prosecutor not proceed according to basic principles of criminal law and Ecuadorian law I just don’t understand.

JE: Glas’ lawyers must have been requesting that.

ORC: Not only that. They also went to the court of appeal saying that and the court of appeal rejected this argument.  The last remedy they have is the Supreme Court, so let’s hope the Supreme Court will say something about this, but being realistic these prosecutions in Ecuador are just nasty.

JE: Santos has admitted to perpetrating illegal acts in Ecuador. Why wasn’t he prosecuted?

ORC: That’s another violation. The prosecutor argued that Santos was already punished in Brazil, and therefore the Ecuadorian legal system cannot punish him again because that would be – as they call it in English – double jeopardy. That’s not true – or at least the prosecutor never managed to prove that. He presented documents from Brazilian courts but they did not show that Santos was ever punished in Brazil. Why are they saying double jeopardy applies? That makes no sense at all.

JE: So they didn’t show Santos was ever sentenced, or didn’t show that ever did any prison time?

ORC:Neither of those things. There is nothing in the file showing that Santos was punished in any way in Brazil for the crimes he committed in Ecuador. There are some indication that he received some sort of penalties for other things, but not for the crimes he committed in Ecuador.

It is absurd that the person who said “I did the crime” can travel to Ecuador whenever he wants, and, at the same time there is no proof against Jorge Glas but he is in jail.

JE:How and why did Glas end up being tried using an outdated criminal code?

ORC:  When these criminal proceedings started he was the Vice President of Ecuador so the judge needed the approval from the National Assembly –the Ecuadorian Parliament- for the case to proceed. Glas himself requested that the National Assembly authorize his criminal proceedings because he was willing to show to everyone that he is innocent. So even his colleagues from Alianza País voted in favor of removing his immunity. But the Assembly authorized the judge to investigate these allegations under article 370 of the current criminal code and some corresponding articles of the previous criminal code. Why they did they do this? Well, when the crime allegedly occurred, the previous criminal code was in force. But this code was changed and Ecuador passed a new criminal code. According to basic principles of criminal law and human rights law, the new criminal law cannot be applied retroactively against the accused. However, if the new criminal code benefits the accused in any way, then it can be applied retroactively.  So the judge in the Glas case had to compare which code should be applied, the current or the past one. What did the judge do?

The judge decided to compare the previous code with article 369 of the current code, and ruled that the previous code should be applicable because the previous code was more beneficial to Glas. And that’s the trick they used. The judge compared current article 369 that punishes “organized crime” and not current article 370 that punishes “illicit association”. Remember the parliamentary authorization was for article 370 of the current code, not for article 369. If the judge would have compared article 370 of the current code with corresponding articles of the previous code, then current article 370 is the more beneficial because it provides for a lower sanction: 5 years of imprisonment. Because the judge decided to apply the previous code, Glas ended up sentenced to six years. This totally disregarded not only basic principles of criminal law, but also the authorization of the National Assembly. The judge compared an article he was not authorized to compare.

Why did they do that? It was done because if Glas were sentenced to only five years he could have applied for early release. This benefit applies only to crimes sanctioned with five years or less of jail time and only for first-time offenders of non-serious crimes. Glas could not apply for this benefit because he was punished with 6 years of jail-time. He was therefore imprisoned without any possibility of being released.  In that way they removed him from the Vice Presidency.

JE: How did using article 369 (the wrong article of the current criminal code as you explained) allow the judge to pull off that maneuver – to claim they were favoring the accused?

ORC: They said “if we compare the current code [article 369] the penalty there is harsher because it has a maximum of ten years of jail time. The previous code has a maximum penalty of six years.” So that makes sense if they were authorized to apply article 369, but they were not.  They were authorized to apply current article 370, and the penalty provided in current article 370 is 3 to 5 years of imprisonment. So why didn’t they apply 370? There is no valid explanation.

JE: Unless the media is very fair, those crucial details won’t be made clear to most people – unless you are really looking for it in small alternative outlets. That really disadvantages Glas.

ORC: You cannot find any explanation of this in the Ecuadorian media at all. Glas’ lawyers have been trying to explain but I haven’t seen it in the big newspapers or TV networks.

JE: It also seemed clear that Glas requested the lifting of his immunity because of how he was being crucified in the media. That drove him to go to trial to try to clear his name, but then the media covers for the judge.

ORC: The judge failed but also the court of appeal.

JE: Well now they are all ultimately subordinated to Moreno’s handpicked CPCCS-T that we discussed before. Even if the judges want to do the right there is heavy media and now institutional pressure to do the wrong thing.

ORC:  Correct.

JE: The case against also relies heavily on the dealings of Jorge Glas’ uncle. Maybe you could explain bit about that.

ORC: Mr, Rivera is his uncle’s name. I do not know if Mr. Rivera did something wrong, but I can tell you that there is no evidence at all that Mr. Rivera was acting with any support from Glas.

JE: They pointed to emails between them. I heard Correa mention that most had to with his university thesis.

ORC:  There were unrelated to the accusations but at one point Glas said he had no contact with his uncle except for family meetings at Christmas etc… so then the media showed the emails and said “You are lying. You are in contact with your uncle.“ Even if you concede that, those emails have nothing to do with the Odebrecht case.

JE: So he was sentenced and jailed but then recently moved to a jail where he would be under much harsher conditions.

ORC: That’s the reason for the hunger strike. He was in the “Centro de Privación de Libertad de Personas Adultas Quito 4”, commonly known as “Jail Four”. That jail is located in Quito. It is designed to hold individuals who would be in danger if they were transferred to general prisons. In this jail you’ll find police officers, informants, military officers and politicians.

So, Glas was in Jail Four, but then he was transferred to a maximum security prison called “Centro de Privación de Libertad Regional Latacunga” commonly known as “Latacunga Jail”. Why they transferred Glas? Well, in October, another victim of political persecution, Fernando Alvarado, left the country.

JE: Alvarado cut off the ankle bracelet he was required to wear.

ORC: Exactly and I think he applied for asylum in some other country in the region. In retaliation for Alvarado’s fleeing, Glas is transferred to the Latacunga Jail. That’s using transfers as punishments. You cannot do that according to international law. For instance, Principle IX(4) of the Inter-American Commission on Human Rights’ Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas provides “The transfers shall not be carried out in order to punish, repress, or discriminate against persons deprived of liberty, their families or representatives; nor shall they be conducted under conditions that cause physical or mental suffering, are humiliating or facilitate public exhibition”. Glas is being punished for the doings of the third person. Glas was humiliated and publicly exhibited during his transfer.

JE: What was the excuse? Presumably, Moreno’s government didn’t come out and say Glas was being punished.

ORC: Officially they say for ”reasons of security”. That’s it. But what are those reasons? There is no indication Glas tried to escape Jail Four. There is no indication he misbehaved in Jail Four or did anything wrong. It was the same day Alvarado left the country, on October 21, Glas was transferred.  His lawyers submitted a habeas corpus constitutional remedy and they requested reasons – and the reason given was just “security reasons” There is nothing that allows us to understand this as anything other than retaliation.

You have to bear in mind that Glas has illness that are, according to Ecuadorian law, considered “catastrophic”. The hospitals that provide the treatments and specialist doctors are in Quito. Jail Four is in Quito, so if something happened with Glas he could be easily transferred from the jail to the hospital.

That would not happen with the Latacunga jail. They have a small medical centre but they do not all the technologies and specialists to assist him. Even the hospital in the city of Latacunga doesn’t have that.

The other thing is that in Latacunga jail there are active cases of tuberculosis. The doctors and prison guards in direct contact with Glas are also in contact with these patients with tuberculosis. There is a medical report – not a private doctor – the doctor in Jail Four saying that Glas had no risk in Jail Four of acquiring the illness, but now in the Latacunga Jail there is a risk acquiring the illness through this exposure.

JE: So he is trying to get back to Jail Four and for security and medical reasons and because the transfer was an illegal act of retaliation.

ORC: Correct. Another thing is that in Jail Four he was able to be in communal areas outside his cell. He cannot do that in the Latacunga jail, so he is basically confined to his cell 23 hours per day. He was only allowed to be outside for an hour and also with somebody else monitoring him. Also, this jail was never designed to hold people like Jorge Glas, so he is being imprisoned in an area called “transitoria”. This transitory area was meant for new prisoners before authorities decided which cell they were supposed to be allocated. According to prisons regulations and Ecuadorian law, nobody can stay in that area for more than 30 days. That is not a proper area to permanently hold prisoners.

There was no proper sanitation. Glas was forced to pee in a bottle and defecate on the floor. There was no heating. The authorities have fixed certain problems since he first arrived, but still that area is not designed to hold anybody more than 30 days. Glas was in hunger strike for 52 days while staying in this transitoria. He is still there, and Moreno’s government is simply unwilling to transfer Glas back to Jail Four.

I have seen medical reports during the time Glas was in hunger strike. Those reports were saying that Glas had been vomiting and passing out and warning of death by starvation. Nothing matters to Moreno.

JE: I was struck by a report in El Comercio [one of Ecuador’s largest newspapers] that Glas has come to agreement in court with his wife for child support. I thought “Oh my God his wife has turned on him”. I was puzzled because I had seen very recent interviews where she stood passionately behind him. But then I contacted some people who informed me that the lawsuit with her husband was tactical – a way to deal with threats to cut off his pension. It was disgusting how El Comercio had deliberately misrepresented what that was about with the obvious intention of throwing more mud at him.

ORC: That’s true. The judgement against Glas is not just sending him to jail. It is freezing all his accounts so he cannot even sell properties. The family is suffering because of that. They need to pay for lawyers, education of the children, so what they did to access some money to pay for that was by filing this complaint for child support, but of course the media presented it as Glas fighting with his wife.

JE: It was a despicable of El Comercio. The English language media, when they report on Ecuador at all, just regurgitate what outlets like El Comercio or others who hate Correa’s former government say. That’s why I mentioned Reuters at the beginning. I disagree with the way Correa has unfavorably contrasted Latin America’s media with Europe’s or the USA’s.

ORC: [laughs] He should read the Guardian.

JE: And leftists from the U.S. have sometimes claimed British media is better than theirs. I think that’s nonsense, but it’s tempting to use another country’s media to hammer your own.  Back to Glas though, one thing that explains why the Odebrecht may have been keen to hurt Glas was that Glas was a key person responsible for getting Odebrecht thrown out of Ecuador for two years.

ORC: Glas was in charge of strategic sectors. Odebetrch did something terribly wrong in one of the buildings it was constructing.

JE: And Correa government was blasted by the Ecuadorian media for mistreating foreign investors.

ORC: And those same journalists are now defending the persecution against Correa and Glas. You see the double standards.

JE: Lula’s government in Brazil actually withdrew their ambassador over that expulsion of Odebretch.

ORC: I can’t imagine how it felt for Correa and Glas. Correa and Lula shared the same ideology and then receiving this backlash from Brazil – Lula saying “I am removing my ambassador because you are mistreating this company.” But still Correa and Glas stood their ground. They protected our country against an ally, not against an [ideologically] opposed country or the Empire. This was against an ally, so it was really hard.

JE: They let Odebretch back in and I bet they regret giving them another chance.

ORC: They let them back in but they had to fix all the problems at their expense. It was not a free pass.

JE: Anything else you want to touch on regarding Glas’ case?

ORC: Glas is not only Ecuadorian but also German so the family has been trying to see if Germany can help, also the Inter America Commission on Human Rights.  Another thing I forgot to mention is that he was not in pre-trial detention when the trial began. He had restrictions on travel. He was complying with that and always had police officers with him, but then suddenly the judge ordered the pre-trial detention. Why did the judge decide there was a risk of Glas fleeing the country? What did Glas do? No explanation. That is when all the other violations started.

Now we have the Vice President Vicuna, illegally appointed by President Moreno, accused of demanding money from her staff every months and so she had to quit. When he appointed her, Moreno said she was wonderful and honest but when she was accused Moreno just let her die politically. Then he went outside the party that was supporting him to get his third Vice president,whom he doesn’t even seem to know much about, so Moreno betrayed the betrayers. And now we have a third Vice President. Before Correa’s time we had eight governments in ten years. Now under Moreno we’ve had three Vice Presidents in under two years.

JE: It echoes that time. Whoever is strongest on the moment, and has private media on its side, just makes up the rules as they go along and does what they want.

ORC: We’re going back to instability, running through Vice Presidents. The country is going into a dark hole just because of Moreno’s persecution of his former allies. The lack of separation of powers, the lack of rule of rule, this creates problems not just for Glas and Correa, it’s a problem for our society as our institutions go into a black hole. The loss of trust of the people in our judiciary and in politics is being lost.  That’s terrible for democracy. I don’t see that in national media. This is about institutions. This is about democracy.

Joe Emersberger is a writer based in Canada whose work has appeared in Telesur English, ZNet and CounterPunch.