March 23, 2021 PRELIMINARY REPORT
Ecuador: Preliminary Report on Criminal Charges Filed Against Labor Organizer Jorge Acosta
Introduction
Jorge Acosta [1], a workers’ rights advocate and the coordinator of the banana workers’ union ASTAC in Ecuador,[2] has faced numerous criminal accusations related to his organizing efforts. These criminal proceedings against him have been characterized by a number of serious irregularities. The ABA Center for Human Rights (CHR) conducts trial observations around the world to encourage compliance with fair trial standards. It has monitored past proceedings against Mr. Acosta and continues to monitor ongoing proceedings against him. This preliminary report outlines the results of these observations to date. A final report will be issued when the current proceedings are complete.
Background
The charges against Mr. Acosta exist within a larger context of improper restrictions on labor organizing. Banana exports account for half of Ecuador’s agricultural GDP.[3] The Ecuadorian human rights ombudsman has reported that workers in this crucial industry face legal obstacles to forming unions.[4] According to ASTAC, the association has faced legal obstacles in formally registering with Ecuador’s national public union registry for the last five years.[5] Since late 2018, Mr. Acosta has been the subject of three criminal complaints in possible retaliation for his efforts to register the union. These complaints involved allegations of spreading false information to create economic panic in 2019, invasion of privacy in 2020, and most recently, tax fraud.
On April 18, 2019, shortly after Jorge Acosta published a complaint submitted to the European Commission stating that Ecuador was in breach of basic labor rights provisions of the Multiparty Trade Agreement of Colombia, Ecuador, Peru and the European Union, Acosta was notified of a formal complaint made against him by a private individual, accusing him of spreading “false information regarding the treatment that agricultural workers receive in Ecuador” to the media and to non-governmental organizations (NGOs), including Oxfam, with the aim and effect of benefitting foreign competition.[6] This complaint alleges that Mr. Acosta violated Article 307 of the Ecuadorian Comprehensive Organic Penal Code, which penalizes anyone who disseminates false information that results in “economic” or “financial panic,” terms that are vaguely defined in the Code, with five to seven years imprisonment.[7] Mr. Acosta is currently under investigation in connection with these allegations, but formal charges have not yet been brought against him.[8]
Subsequently, on February 7, 2020, Mr. Acosta was arrested for allegedly violating a judge’s privacy when he attempted to film the judge’s response to his request for court documents relating to the dismissal of banana workers who attempted to form a trade union. [9] Mr. Acosta was detained for several hours for invasion of privacy, a charge that carries a penalty of up to three years of incarceration. This charge was dropped after the judge, who was the complainant, failed to attend a hearing scheduled in the case on March 11, 2020.[10]
These charges were followed by an overly broad request from the prosecutor[11] in the violation of privacy case for access to Mr. Acosta’s personal communications that fails to demonstrate the materiality of these communications to the charges. A preliminary investigation was then initiated against Mr. Acosta for tax fraud in response to a report to authorities by a witness who had previously testified against Mr. Acosta as part of the economic panic investigation.[12] In this case, international NGOs were denied access to at least one hearing against Mr. Acosta without justification, in violation of the right to a public trial.
Relevant Legal Standards
The International Trade Union Confederation (ITUC) has observed a pattern of suppression of pro-union associational activity and expression in Ecuador.[13] Since at least 2015, the International Labor Organization (ILO) has requested that Ecuador take measures to reform Sections 443, 449, 452 and 459 of its Labor Code to remove impediments to the exercise of the right to freedom of association.[14] The ILO has also asked Ecuador to amend Section 346 of its Basic Comprehensive Penal Code to prevent the criminalization of peaceful strikes.[15] Moreover, Article 307 of the Comprehensive Organic Penal Code has been criticized by the UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression for permitting abusive prosecution of journalists and rights defenders and defamation against public officials.[16] These provisions of Ecuadorian law significantly impede the formation of unions and the exercise of the right to freedom of association.
After observing several of the hearings in the cases against Mr. Acosta, CHR staff attorneys have concluded that there are grounds for concern that officials may be using criminal proceedings against Mr. Acosta to intimidate and silence him in violation of his right to a fair trial as well as his right to the freedoms of association and expression. These rights are guaranteed under Ecuador’s Constitution,[17] as well as under several international and regional human rights instruments to which Ecuador is a State Party, including the International Covenant on Civil and Political Rights (ICCPR) and the Inter-American Convention on Human Rights (ACHR).
First, Mr. Acosta’s case raises concerns regarding improper motive. The ICCPR, [18] ACHR,[19] and European Convention on Human Rights[20] proscribe improperly motivated prosecutions, the use of which suggests arbitrariness and lack of fairness. Thus far, the Inter-American Court of Human Rights (IACtHR) has almost exclusively analyzed improper state action, prohibited under ACHR Article 30, in the context of other Articles, such as Article 8 on the right to a fair trial[21] and Article 24 on the right to equal protection of the law.[22] As such, the European Court’s jurisprudence on indicia of improper motive is valuable. The European Court has found circumstantial evidence—including the political climate, the timing of the proceedings, and inadequate justification for state action—to be probative.[23] The seemingly selective targeting of a specific individual can also support the inference of improper motive.[24] The European Court has further held that a prosecution that does possess a legitimate aim can be rendered unlawful due to ulterior motive.[25] In analyzing cases involving potential political aims, the ECtHR has emphasized that efforts to undermine democracy and the rule of law should be subjected to heightened scrutiny.[26]
Second, Mr. Acosta’s case raises concerns related to the right to a fair trial. In particular, Article 14 of the ICCPR provides that everyone is generally entitled to a fair and public hearing in the determination of any criminal charge against them as part of the right to a fair trial.[27] This requirement has been upheld repeatedly by the UN Human Rights Committee, which is the body charged with authoritative interpretation of the ICCPR.[28]
Third, Mr. Acosta’s case raises concerns related to the rights to the freedoms of expression and association. The IACtHR has stressed that the freedom of expression is essential to enabling the operation of labor unions.[29] In labor matters, the Court has established that the right to the freedom of association protects the ability to constitute labor unions and implement their internal structure, activities, and programs of action, without undue interventions by the State limiting or hindering this exercise.[30] The Court has also held that criminal proceedings may have “an intimidating or inhibiting effect on the exercise of freedom of expression, contrary to the State’s obligation to ensure the free and full exercise of this right in a democratic society.”[31]
Conclusion
The proceedings against Mr. Acosta have been characterized by repeated irregularities. The initial economic charges were arguably vague and overbroad, sweeping in protected speech. That investigation has been pending for over a year without the initiation of charges. The subsequent invasion of privacy charges were used to attempt to seek personal information about the defendant unrelated to the alleged misconduct. The charges were subsequently abandoned by the complainant. International observers were denied access to those hearings without justification. In light of these irregularities and the ongoing failure of the State of Ecuador to fulfill its obligations to not interfere in union formation, there are grounds for concern that these irregularities are the result of an improper motive for the criminal proceedings, namely a desire to intimidate the defendant and interfere with lawful organizing activities.
If, in fact, the current proceedings lack a proper criminal basis, the misuse of criminal processes could amount to a violation of Mr. Acosta’s fair trial rights and his rights to freedom of association and freedom of speech. Any future proceedings should be public and properly predicated on credible allegations of criminal misconduct in order to prevent any undue infringement upon Mr. Acosta’s right to freedom of association and a fair trial. The Center for Human Rights will continue to monitor this case.
Footnotes
[1] This report was prepared by staff attorneys and pro bono experts of the American Bar Association (ABA) Center for Human Rights and reflects their views. It has not been reviewed or approved by the House of Delegates or the Board of Governors of the ABA and therefore should not be construed as representing policy of the ABA as a whole. Further, nothing in this report should be considered as legal advice in a specific case.
[2] ASTAC stands for “Asociación Sindical de Trabajadores Agrícolas bananeros y Campesinos” in Spanish, which translates to “Trade Union Association of Agricultural Banana Workers and Peasants” in English.
[3] U.N. Conference on Trade and Development, Banana: An INFOCOMM Commodity Profile, at 5 (2016), https://unctad.org/system/files/official-document/INFOCOMM_cp01_Banana_en.pdf.
[4] See, e.g., Defensoría del Pueblo Ecuador, Informe de verificación de vulneraciones de Derechos Humanos en las provincias de producción bananera de Ecuador (2019), https://media.business-humanrights.org/media/documents/files/documents/INFORME_SOBRE_VIOLACION_EN_LAS_PLANTACIONES_BANANERAS_DE_ECUADOR_1.pdf.
[5] Int’l Lab. Org., Freedom of Ass’n Comm., Complaint Against the Government of Ecuador Presented by Asociación Sindical de Trabajadores Agrícolas y Campesinos (ASTAC) and Asociación Sindical de la Compañía Frutas Selectas S.A FRUTSESA, Case No. 3148, Report No. 391 (Oct. 2019), https://www.ilo.org/dyn/normlex/en/f?p=1000:50001:0::NO:50001:P50001_COMPLAINT_FILE_ID:3247268.
[6] Complaint Against Jorge Acosta for Economic Panic filed by Felipe Carlos Santiago Merelo with the Attorney General of the Ecuadorian State, at 1 (December 21, 2018) (on file with author).
[7] Código Orgánico Integral Penal [Comprehensive Organic Penal Code], Article 307, February 10, 2014, https://wipolex.wipo.int/en/text/444012.
[8] Notwithstanding public reports suggesting that the investigation was concluded (see, e.g., Swedwatch article, infra note 9), the investigation appears to be ongoing.
[9] “Ecuadorian defender faces new legal accusations” [hereinafter Swedwatch article], Swedwatch, March 10, 2020, https://swedwatch.org/industry/ecuadorian-defender-faces-new-legal-accusations/.
[10] Sala Multicompetente de la Corte Provincial de Justicia de los Rios con Sede en el Cantón Babahoyo [Multicompetent Chamber of the Provincial Court of Justice of Los Rios with headquarters in the Babahoyo Canton], Summary of Judicial Proceedings, Attorney General of the State v. Jorge Washington Acosta Orellana (No. 12282-2020-00328) (on file with author). See also Swedwatch article, supra note 9.
[11] Authorization to Extract data from audio / video discs filed by Prosecutor Cristian Peralta with Judge Gabriela Sornoza, (February 10, 2020) (on file with author).
[12] E-mail from Jorge Acosta to Juan Ramirez (March 13, 2020, 4:00:56 EST) (on file with author).
[13] See Ecuador – ITUC Survey of violations of trade union rights, Int’l Trade Union Confederation (ITUC), https://survey.ituc-csi.org/Ecuador.html?lang=en#tabs-3 (last visited Nov. 12, 2020).
[14] See, e.g., Int’l. Lab. Org., Comm. of Experts on the Application of Conventions and Recommendations [hereinafter CEACR], Freedom of Association and Protection of the Right to Organise Convention (No. 87), Observation on Ecuador, adopted 2015, published 105th ILC session (2016), https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:13100:0::NO::P13100_COMMENT_ID:3254991.
[15] Int’l. Lab. Org., CEACR, Freedom of Association and Protection of the Right to Organise Convention (No. 87), Observation on Ecuador, adopted 2019, published 109th ILC session (2021), https://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:4023504:NO.
[16] UN Office of the High Commissioner for Human Rights, “Preliminary Observations by the UN Special Rapporteur on freedom of expression following his visit to Ecuador, 5 - 11 October 2018”, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=23713&LangID=E.
[17] Constitución de la República del Ecuador (2008) (arts. 39, 45 and 55 guarantee freedom of association; arts. 21, 23, 29, 45, 57 and 66 guarantee the freedom of expression; arts. 11, 51, 55, 66, 75,76, 86, 88 and 89 guarantee the rights to a fair trial, judicial guarantees and judicial protection).
[18] Although the ICCPR proscribes improperly motivated prosecutions, the Human Rights Committee has not yet established clear criteria for assessing when a prosecution is improperly motivated. See International Covenant on Civil and Political Rights, art. 14(1), opened for signature Mar. 23, 1966, 999 U.N.T.S. 171 (entered into force Mar. 23, 1976); Human Rights Committee, Khadzhiyev and Muradova v. Turkmenistan, U.N. Doc. CCPR/C/122/D/2252/2013, 2018, para. 7.7; Human Rights Committee, Nasheed v. Maldives, U.N. Doc. CCPR/C/122/D/2851/2016, 2018, para. 8.7. See also Trial Monitoring of Guatemala v. Abelino Chub, American Bar association Center for Human Rights, August 2019, https://www.americanbar.org/content/dam/aba/administrative/human_rights/trialwatch/guatemala-fairness-report-abelino-chub.pdf.
[19] American Convention on Human Rights, art. 30, Nov. 22 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978) (“[t]he restrictions that, pursuant to this Convention, may be placed on the enjoyment or exercise of the rights or freedoms recognized herein may not be applied except in accordance with laws enacted for reasons of general interest and in accordance with the purpose for which such restrictions have been established.”).
[20] [European] Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature art. 18, Nov. 4, 1950, 213 U.N.T.S. 222 (entered into force Sept. 3, 1953, as amended by protocol nos. 3, 5, 8, and 11 entered into force Sept. 21, 1970, Dec. 20, 1971, Jan. 1, 1990, and Nov. 1, 1998, respectively) (“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”).
[21] I/A Ct. H.R., Case of Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, Judgment of 22 June 2015, Series C No. 293, ¶ 184-99; I/A Ct. H.R., Case of Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, Preliminary Objection, Merits, Reparations and Costs, Judgment of 23 August 2013, Series C No. 266, ¶ 173-179; I/A Ct. H.R., Case of Constitutional Tribunal (Camba Campos et al.) v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, Judgment of 28 August 2013, Series C No. 268, ¶ 210-19.
[22] I/A Ct. H.R., Case of Norin Catriman et al, Merits, Reparations, and Costs, Judgment of 29 May 2014, Series C No. 279, ¶ 222-230.
[23] See Eur. Ct. H.R., Merabishvili v. Georgia, App. No. 72508/13, 2017, ¶ 312-317, 352; Eur. Ct. H.R., Selahattin Demirtas v. Turkey (No. 2), App. No. 14305/17, 2018, ¶ 263-267, 273; Eur. Ct. H.R., Navalnyy v. Russia, App. No. 29580/12, 2018, ¶ 168-170.
[24] Eur. Ct. H.R., Navalnyy v. Russia, App. No. 29580/12, 2018, ¶ 168-170.
[25] Eur. Ct. H.R., Merabishvili v. Georgia, App. No. 72508/13, 2017, ¶ 303-305.
[26] See Eur. Ct. H.R., Navalnyy v. Russia, App. No. 29580/12, 2018, ¶ 173-175; Eur. Ct. H.R., Selahattin Demirtas v. Turkey (No. 2), App. No. 14305/17, 2018, ¶ 272.
[27] Supra note 18.
[28] U.N. H.R. Comm., General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial, U.N. Doc. CCPR/C/GC/32 (Aug. 23, 2007).
[29] Lagos del Campo v. Peru, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 340, ¶90 (Aug. 31, 2017).
[30] Id. ¶156.
[31] López Lone et al. v. Honduras, Preliminary Objection, Merits, Reparations and Costs, Judgment, Inter-Am, Ct. H.R. (ser. C) No. 302, ¶176 (Oct. 5, 2015).