https://doi.org/10.37955/cs.v8i1.335

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eISSN: 2600-5743

The penitentiary system in Ecuador

in relation to the right to personal

integrity

El sistema penitenciario en el ecuador frente al derecho

de integridad personal

José Alejandro Jara Toca

Estudiante de la carrera de Derecho en la Universidad Indoamérica

jjara5@indoamerica.edu.ec

https://orcid.org/0009-0006-8616-6635

Daniela Fernanda López Moya

Abogada de los Tribunales de Justicia de la República del Ecuador, Magister en Derecho

Constitucional, Magister en Derecho Laboral y Seguridad Social, Docente titular

Universidad Indoamérica

danielalopez@uti.edu.ec

https://orcid.org/0000-0002-6777-2617

ABSTRACT

The Ecuadorian prison system aims to generate the space and means

for people who have committed an unlawful act to comply with the

sanctions imposed by the judicial authority, where their fundamental

and specific rights must be respected for this group of priority

attention, with emphasis on the right to personal integrity, which is

composed of the physical, psychological, moral and sexual aspects,

which, ultimately, make up human dignity and well-being. This article

was carried out using the hermeneutic method through a documentary

analysis, therefore, it worked from a qualitative approach. The purpose

is to analyze and evaluate the effectiveness of the protection of the

rights of persons deprived of liberty, with emphasis on the right to

personal integrity, in the light of the penitentiary system, which

presents a series of challenges, as well as its international regulation.

It is clear that the constitution recognizes specific rights for inmates,

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which are complemented by principles for their application,

institutions for their protection, disciplinary regulations in the centers

and jurisdictional guarantees such as Habeas Corpus for their

protection, including a corrective approach to the execution of the

sentence.

RESUMEN

El sistema penitenciario ecuatoriano pretende generar el espacio y

medios para que las personas que han cometido un acto antijuridico

cumplan las sanciones interpuestas por la autoridad judicial, donde se

deben respetar sus derechos fundamentales y específicos para este

grupo de atención prioritaria, con énfasis en el derecho a la integridad

personal mismo que está compuesto por el aspecto físico, psicológico,

moral y sexual, que, en definitiva, configuran la dignidad y bienestar

humana. El presente artículo se realizó empleando el método

hermenéutico a través de un análisis documental, por ello, se trabajó

desde un enfoque cualitativo. El objeto es analizar y evaluar la

efectividad de la protección de los derechos de los privados de libertad

con énfasis en el derecho a la integridad personal, bajo la mira del

sistema penitenciario, mismo que presenta una serie de desafíos y

retos, así como su regulación internacional. Ante lo cual se desprende

que la constitución reconoce derechos en específico para los reclusos,

lo que se complementa con principios para su aplicación, instituciones

para su resguardo, normativa disciplinaria en los centros y garantías

jurisdiccionales como el Hábeas Corpus para su protección, incluso

con un enfoque correctivo para la ejecución de la pena.

Keywords / Palabras clave

rights, habeas corpus, personal integrity, prison system, prisoners

Derechos, habeas corpus, integridad personal, privados de libertad,

Sistema penitenciario

Introduction

The penitentiary system is defined within the social sphere as that

mechanism for the fulfillment of sentences, fixed to an individual

through a sentence, in support of the punitive power of a State in

criminal matters, which has elements to promote and rehabilitate

those subjects who have caused an alteration in society due to an

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unlawful behavior, in order to prevent the commission of future

infractions, whether or not of the same nature. This system must have

sufficient resources and trained personnel to administer and control

the centers of deprivation of liberty, and to implement prison policy

aimed at achieving the two elements described above, such as

rehabilitation and reintegration of individuals, in addition to the

prevention of recidivism.

Persons deprived of liberty (hereinafter PPL) are those subjects who

have been imposed as a punitive measure by a final conviction, the

prohibition of freedom of movement, upon determining their

responsibility in the commission of a criminal offense, as well as those

on whom a precautionary measure of preventive detention has been

applied, to ensure the immediacy of the defendant in the criminal case.

It should be noted that the Constitution of the Republic of Ecuador

recognizes them as a group of priority attention, since they are

restricted a fundamental right such as freedom, which makes the State

responsible for ensuring their human dignity and integrity, through

the competent agencies and authorities, through which it will establish

the necessary measures to ensure this particular.

The right to personal integrity, the subject of this study, covers the

physical, psychological, moral and sexual aspects of a person, which

are conducive to the dignity of the human being, therefore, Ecuadorian

law prohibits under any aspect that actions or omissions are

committed that generate harm or affectation to the individual, as a

result of cruel, degrading or inhuman treatment, especially when there

is a hierarchy of power, a situation that can be seen contemplated in

prisoners who are under the provisions and mandates of the prison

authorities.

This right, from the context of physical integrity, constitutes the care

for the health and physical well-being of people, which is why the State

must promote it through adequate and timely medical care, including

for the prevention of diseases, as well as access to a nutritious diet and

physical activity through sports, among others. Psychic integrity is the

emotional and mental aspect of the person, which, due to these

circumstances of vulnerability, can be affected by pathologies such as

anxiety or depression. Sexual integrity refers to this sexual freedom, to

be able to discern and decide on their sexuality, and includes

protection from sexual violence during their imprisonment. Finally,

moral integrity refers to convictions, in which the customs and beliefs

of each individual must be respected; therefore, this broad dimension,

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whose focus is the case of PLW, is intended to be guaranteed by the

State.

The right to integrity, in the Ecuadorian context and its prison system,

seeks to verify its effectiveness, highlighting that the prison system and

policy "(...)has been widely criticized for its overcrowding, inadequate

facilities, violence, corruption and poor conditions in general" (Wilmer

Francisco Ortiz-Criollo, 2023). (Wilmer Francisco Ortiz-Criollo,

2023)This is in addition to the provision contained in the

Comprehensive Organic Penal Code (hereinafter COIP), which states

that with respect to inmates in state custody "The State shall be liable

for the actions or omissions of its servants that violate the rights"

(COIP, 2014, art. 676) of the prison population.

Therefore, the scope of the jurisdictional guarantee of habeas corpus,

which in relation to persons deprived of liberty protects three

fundamental rights, such as life, liberty, and personal integrity. This

tool, which essentially seeks that the person deprived of liberty in an

illegal, arbitrary and illegitimate manner may recover it, is extended

and may be activated in the event that the person is the victim of cruel

or inhuman acts.

The objective of this research is to investigate in the Ecuadorian prison

system, the protection of the rights of persons deprived of liberty with

a special focus on the right to integrity, in order to verify, if necessary,

mechanisms to ensure its guarantee and effectiveness. To this end,

topics will be addressed to identify the functionality of the prison

system in Ecuador and the situation and regulation of those deprived

of their liberty.

Materials and Methods

The present work called "The penitentiary system in Ecuador facing

the right to personal integrity", by its nature, was developed using the

hermeneutic method, since a deductive analysis of the selected topic

was carried out, starting from the description of general conceptions

to more specific notions. A legal analysis of the corresponding

regulations was also carried out in order to obtain a better

understanding of the subject of study. The approach used is qualitative

since neither a population study nor a numerical-statistical analysis

was required, but rather, the relevant characteristics and elements

were observed.

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Results

Persons deprived of liberty as a priority group of attention

The Ecuadorian constitutional text (2008) Article 35 recognizes

persons deprived of their liberty among the groups receiving priority

attention, stating that they "shall receive priority and specialized

attention in the public and private spheres" (Constitutional Assembly,

2008, p. 16). (Constituent Assembly, 2008, p. 16).regulating specific

rights for them. Although all individuals are equal in terms of formal

equality, it must be considered that those who are part of these groups

present some distinction or characteristic that places them in a

situation of vulnerability and, in order to balance this inequality,

actions and measures supported by constitutional and infra-

constitutional regulations are established, guiding and promoting

actions by the relevant authorities.

Their inclusion in this group is due to the restriction of one of the

fundamental rights for human development and existence, freedom,

where regardless of the reason for their deprivation, the PPL have been

removed from their usual environment, and are subordinated to the

penitentiary system. As noted in this case, these individuals "also enjoy

fundamental rights, however, because of their condition, the right to

liberty is exempted and as a consequence they are considered as

vulnerable groups" (Lascano Sinchiri & C. C., 2007). (Lascano Sinchiri

& Cárdenas Paredes, 2022, p. 218).In short, they are persons who have

been deprived of one of their fundamental subsistence rights, and

therefore merit the assignment of certain rights specific to this group

in order to protect their dignity in the generic context.

Article 51 ibidem establishes a series of rights assigned to this human

group, among which it is established that under no condition may

prison officials take isolation measures as a form of correction, they

have the right not to lose contact with their family and the

professionals handling their case, and the right to indicate to the

authorities the treatment they receive during their stay in prison,

under the consideration that the State must ensure their welfare, with

special emphasis on the absence of cruel or degrading treatment.

The State, therefore, being the guarantor of their rights, must have the

necessary resources to ensure the right to health, with medical

supplies and care by professionals in the area, as well as access to care

for their needs for their professional, academic and cultural

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development, which will allow their reintegration into society. On the

other hand, there will be preferential treatment for pregnant or

breastfeeding women, the elderly, adolescents, and those with

disabilities, since they are doubly vulnerable. Finally, protective

measures must be taken for individuals who are dependent on the PPL.

(Constituent Assembly, 2008). These are the main rights addressed in

the state political charter.

This is why, from the perspective of priority attention, there is a need

to develop specific policies, programs and strategies to guarantee the

effective protection of the rights of these people, such as improving

their living conditions, including their housing, food, medical care and

hygiene services, promoting their access to educational and cultural,

sports, vocational and labor activities, in order to enable their

rehabilitation and facilitate their social reintegration.

These include establishing specific measures for the protection of the

rights of women and persons belonging to ethnic or cultural minority

groups, as well as differentiating in the case of adolescent offenders;

and developing training plans for personnel in charge of the custody

and surveillance of persons deprived of liberty, aimed at guaranteeing

human rights and the social reintegration of inmates.

Right to personal integrity of persons deprived of liberty

The right to personal integrity is a fundamental and intrinsic human

right of individuals, in short, it corresponds to the compendium of

individual attributes that cover the characteristics of invariable,

indivisible and unbreakable, where it is composed of physical,

psychological, moral and sexual integrity, which constitute the set of

elements to ensure their welfare.

This right is recognized in the Ecuadorian national political charter,

which makes it one of constitutional rank, so that Article 66 numeral

3, in its various paragraphs to achieve the objective of protecting the

safety and welfare of persons, in addition to the integrity in the

dimensions detailed above, extends by referring to the access to a life

free of violence, the prohibition of forced disappearances, the use of

treatment that causes pain or suffering to the individual and is cruel,

inhuman or degrading, and the use of genetic material or scientific

experimentation contrary to human rights. (Constituent Assembly,

2008).

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The State must take into account situations of double vulnerability,

where among the prison population there are the elderly, pregnant

women, people with disabilities, catastrophic illnesses, where

additional assessments for their physical integrity (health) are

imperative; and on the other hand, that of adolescent offenders raises

considerations such as confidentiality and protection of their identities

because "This prerogative constitutes a legal guarantee for

adolescents, avoids dishonoring them morally" (Bermúdez Santana,

2021, p. 34). (Bermúdez Santana, 2021, p. 34).which is another

dimension of the right to integrity.

With regard to the right under study, the COIP typifies crimes against

personal integrity, among which the crime of torture is established,

especially in relation to PPL, which implies that pain or suffering is

inflicted on a person, for which the deprivation of liberty of whoever

commits it is proposed as a sanction, to which it is extended that if a

public servant with competence to prevent this fact does not act, he

will also be subject to be punished with deprivation of liberty. It should

be noted that as torture is typified, it states that it is not limited to the

physical, being that it textually states "(...) of a physical or

psychological nature or submits it to conditions or methods that annul

its personality or diminish its physical or mental capacity." (National

Assembly of Ecuador, 2014)which reiterates different dimensions of

the right.

Physical integrity is made up of different aspects, which aim to protect

the individual's physical body as well as his or her physical health, and

to prevent acts of torture. In the area of health, the law recognizes that

the prison population must have the resources to ensure their

comprehensive health, so that the various rehabilitation centers must

have a doctor and a psychologist to cover basic and general aspects;

however, if specialized care is needed, it will be coordinated with the

Ministry of Public Health for the care of more complex diseases or

catastrophic or other diseases. In addition, preventive medical care

such as vaccination campaigns, etc., should be included.

Activities that contribute to the health of inmates integrate the

attention to their nutritional and recreational needs. Therefore, they

must have adequate food, meeting the needs and particularities in the

face of facts such as double vulnerability, because some individuals

may have specific medical conditions that require a nutritional plan,

which is known as special diets assigned to pregnant women or people

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with catastrophic diseases, while the recreational area consists of

physical activity through sports practices.

The Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment defines torture as "any act by

which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person for such purposes as obtaining from

him or a third person information, confession or punishment" (United

Nations, 1984, p. 01). (United Nations, 1984, p. 01).(United Nations,

1984, p. 01), so it is appropriate in the case of persons deprived of

liberty to receive the aforementioned humane treatment, which

adheres to their right to be protected against any type of violence,

mistreatment, abuse or injury, whether by the State or by private

individuals. This fact gives room to the next dimension, the psychic

one.

The psychic aspect, formerly understood as the essence of a human

being, the way they have to understand reality, because no individual

responds to an action in the same way, each one will have different

opinions or considerations, in conclusion, this right is the sum of

behaviors, feelings, thoughts that govern the life of an individual and

that shape his personality.

Therefore, psychological integrity is indispensable because it provides

well-being in all senses, allows the development of capacities and skills

that make an individual confident and balanced. Such integrity must

also be granted to persons who are deprived of their liberty in order to

preserve their psychological stability, so that respect for this right

prevents cruel practices such as torture, which not only affects a

person physically but also causes alterations in their mental and

emotional state, from being carried out by the authorities and

personnel in charge of their custody.

It is necessary to mention that, in the past in the Ecuadorian State

coercive practices were used to obtain confessions, since the person

was subjected to manipulate his mind, which caused problems in his

emotional state, however, the Convention against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment is subscribed,

which in its Art. 11 provides as an obligation of States to keep

"(...)systematically under review interrogation rules and instructions,

methods and practices, as well as arrangements for custody and

treatment..." (United Nations, 1984, p. 04) (United Nations, 1984, p.

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04) in relation to inmates in order to avoid any case of torture,

including psychological torture.

It can be established that penitentiary type centers merit an adequate

distribution, in order to satisfy the needs of the inmates, and among

these needs is psychological care, since people who are deprived of

their freedom, due to their very condition of isolation from the rest of

society and subjection to a preset penitentiary regime with a fixed

standard, where they lose their intimacy; This can put their mental

stability at risk, which, if not taken care of, will have negative

repercussions, causing pathologies such as anxiety and depression or

an alteration of the personality caused by the rupture of the social

connection when they are cut off from family and social ties, therefore,

the State must provide security and consider their emotional state; this

is another argument for the development of multidimensional public

policies.

It is necessary to take into account that, the COIP, "guarantees the

rehabilitation of PPL and their needs, capacities and abilities must be

taken into account." (National Assembly of Ecuador, 2014, p. 31).

Therefore, in the framework of the Regulations of the National Social

Rehabilitation System, it defines the treatment of PPL as a "(...)

therapeutic and psychosocial process, which stimulates the proactive

participation of the person deprived of liberty, within the framework

of a progressive and regressive system that makes their rehabilitation

and social reintegration viable". (Ministry of Justice, Human Rights

and Cults, 2016).. However, without a clear prison policy for their

rehabilitation and sufficient resources, it is unenforceable and instead,

inmates become unproductive and dependent on the system, with little

chance of being reintegrated into Ecuadorian society.

Another aspect of the right to integrity is morality, which, from a

reflective point of view, leads the individual to consider what is good

or bad, therefore, to differentiate what is just (legal) from what is

unjust (contrary to the rules), which in turn safeguards the

foundations to act at a social level within the framework of convictions,

beliefs, recognition of their own identity and autonomy, and honor;

where respect for their dignity and the value of each person as a human

being is added.

The persons deprived of liberty, being part of the priority attention

group, are susceptible to situations that violate their rights, so the State

should consider within the prison policies an intercultural approach to

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facilitate their stay in the prison taking into account the traditions and

customs, especially of the indigenous communities where each

individual plays a fundamental and vital role in their way of life, being

that in the cultural field will be carried out jointly between the State

portfolios, which are assigned in issues of culture and heritage, justice

and human rights. From this position, "moral integrity is the right of

every person to develop his life in accordance with his beliefs." (Alba,

2021, p. 1) (Alba, 2021, p. 1), in which the human being must be able

to live in accordance with his convictions, since these represent his

values and traditions, which are the norms that the subject respects at

the moment of executing his daily actions.

The main focus in relation to persons deprived of liberty in relation to

moral integrity is being subjected to cruel, inhuman or degrading

treatment, where it is the State, through its officials or persons who are

in the exercise of any public function, who may perform acts directly

or give their consent or acquiescence to perform them, and that these

are intended to produce in the prisoner feelings of fear, anguish,

inferiority, humiliation, or the breaking of his moral resistance. Moral

integrity is violated when the person is the victim of denigrating

treatment that undermines his or her faculty to decide and

simultaneously his or her dignity and honor, discarding his or her own

convictions; these affectations may be more evident in Rehabilitation

Centers, since the PPL are subordinated to the penitentiary system.

In view of such precepts, we reiterate the statements of the Inter-

American Court which refers that it is the duty of the States "to deploy

immediate actions that guarantee the physical, psychological and

moral integrity of the inmates, as well as their right to life and the right

to enjoy the minimum conditions of a dignified life" (Inter-American

Court of Human Rights, 2020, p. 29). (Inter-American Court of

Human Rights, 2020, p. 29).The objective of the penitentiary system

is rehabilitation and reinsertion.

Finally, in the context of sexual integrity, it can be established that "it

is a person's sexual freedom, dignity and capacity for discernment"

(Ortiz, 2020, p. 2220). (Ortiz, 2020, p. 2220) which implies protecting

the faculty that an individual has to voluntarily consent to a sexual act,

this guarantees the choice of those who are legally capable (18 years

old), avoiding being victims of any act that transgresses this

dimension.

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The COIP criminalizes behaviors that violate sexual and reproductive

integrity, where the governing verb is the word obligate, which

describes actions where using a superior position or authority a person

is intimidated or forced to comply with a certain activity, preventing

him/her from self-determination, i.e., he/she lacks the ability to

choose, therefore, this type of behavior is performed against the will of

the subject, since he/she did not give his/her consent.

The violation of sexual integrity occurs when the person cannot resist

and is forced to perform certain actions against their will, these

situations are aggravated in the case of PPL, such as "women are often

asked to submit to searches that degrade their integrity, as well as the

sexual favors they perform to protect themselves from other inmates

or to communicate with family members." (Antony, 2022, p. 4). Due

to the situation, parameters have even been defined to separate the

prison population, between adults categorized according to male or

female sex and adolescent offenders, in addition to having staff of both

sexes, so that female inmates are supervised exclusively by women,

avoiding body searches by male staff, as well as prioritizing their

medical care to protect their personal privacy.

Social rehabilitation centers "are places where individuals serve

sanctions imposed by criminal law, through the different Courts or

Tribunals" (Caro, 2019, p. 40), so it is the responsibility of the State to

be the custodians of both the enforcement of penalties, but also the

safeguarding of the rights of inmates, this implies that prison officials

must avoid situations that may violate the dignity of inmates,

especially actions that attempt against their personal integrity in its

various dimensions.

The Right to Integrity of Persons Deprived of Liberty in the

International Context

Mandela's rules are based on respect for the standards for the

treatment of inmates, which promotes treatment with dignity, without

there being a violation of their human value, therefore, the prohibition

of cruel and degrading practices such as torture in prisons is

established as the axis, In particular, under no circumstances may

painful measures such as the restriction of food and water or the use

of chains, the existence of medical services, the individualization of

inmates, among others, be applied as disciplinary measures,

guidelines that have been defined by the General Assembly of the

United Nations.

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The Convention against Torture is based on the ideals established in

the Charter of the United Nations, which states that all human beings

are equal in freedom and rights, therefore, these fundamental

freedoms represent something intrinsic to the inherent dignity of

persons, Therefore, it is prohibited to establish cruel and degrading

punishments or to apply disciplinary measures based on torture in

penitentiary centers, since these are painful and degrading, that is,

they are inhumane practices.

Also, the Inter-American Convention to Prevent and Punish Torture is

an international instrument, signed by Ecuador on May 30, 1986 and

ratified on September 30, 1999. The States that signed this instrument

have the obligation to take measures to prevent and punish torture and

other cruel, inhuman or degrading treatment, as well as to guarantee

that persons deprived of their liberty are treated with humanity and

respect for their dignity. (Inter-American Commission on Human

Rights, n.d.).

Thus, these various international instruments seek to safeguard the

dignity and personal integrity of persons deprived of their liberty, with

a special focus on preventing acts of torture.

Prison system in Ecuador

With the passage of time, new ways of applying the punitive power of

the State have been sought, in which the deprivation of liberty seeks to

correcting behaviors that went against the system and social harmony,

in such a way that by the 19th century the ideas of mistreatment,

torture and physical punishment were left aside and replaced by

imprisonment as a sanction mechanism" (Sailema, 2022, p. 10).

(Sailema, 2022, p. 10)..

This system in the Ecuadorian case is called <<National System of

Social Rehabilitation>>, which inserts centers of deprivation of

liberty, which as noted by Goffman (1991) are institutions in which

people have been contained with the obligation to remain there for a

certain period of time, which will be under the supervision of a

competent authority (as cited in Galvani, 2022, p. 13).

These deprivation centers, therefore, are classified between those of

deprivation of liberty (CPPL) and those of social rehabilitation (CRS)

and are under the responsibility of the Ministry of Justice, Human

Rights and Cults, to whom the persons deprived of liberty will be under

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the custody and surveillance. Ultimately, it aims to generate

coordination between the various actors responsible for the context of

justice, rehabilitation and reintegration of those deprived of liberty,

both adults and adolescent offenders, to ensure their safety and well-

being, including technical, educational and job training, as well as

medical and psychological assistance.

Although in Ecuador deprivation of liberty has been applied as a

sanction, it was not until 2007 that a modernization of the regulation

system in prisons took place, since these were in crisis due to the lack

of efficient management, in such virtue, additional institutions with

competence in the matter were formed, for example, through

"executive decree 784/2007 the Ministry of Justice and Human Rights

was established, or the Transitory Unit of Management of the public

and free criminal defense through decree 441/2007". (Aguirre Salas,

León, & Ribadeneira, 2020, p. 97)..

A possible decline of the system may be due to "(...) prison

overcrowding, militarization of social deprivation centers, torture,

degrading and inhuman treatment, several directors and public

servants imprisoned for corruption, criminal gang rivalry and mass

murder" (Wilmer Francisco Ortiz-Criollo, 2023). (Wilmer Francisco

Ortiz-Criollo, 2023)This exposes the prison reality, making it

imperative to provide not only recognition of rights, but also

guarantees and mechanisms to make them effective.

In Latin American countries it has been evidenced that there is a lack

of control of the centers of deprivation of liberty, which are derived

from the lack of an efficient government, which has led to these

facilities witnessing scenarios such as overcrowding of the population,

unhealthiness, violence, among others. (Jordán Naranjo, Caicedo

Banderas, Huera Castro, & BucaramCaicedo, 2019, p. 1)..

A latent problem in the penitentiary system is identified by the

overcrowding of these centers, since most of them exceed the limits or

the capacity for which they were built, in many cases this aspect

responds to the abuse of pretrial detention, which "deprives of liberty

an individual who does not have a conviction, but who is in a judicial

process" (Solar, 2021, p. 127). (Solar, 2021, p. 127).This statement is

supported by the study conducted by Melo Vélez and Arteaga on "The

militarization of prisons and the prison crisis in Ecuador, where in

2022 out of 34,821 persons deprived of their liberty, at least 60% of

them do not have a conviction" (Melo Vélez & Vélez, 2021, p. 127).

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(Melo Velez & Velez Arteaga, 2023, p. 13).. In view of these

considerations, it is necessary to identify the reality of the rights of

persons deprived of liberty with emphasis on the right to life and

integrity during their stay in one of these centers.

This system, which faces a series of multifaceted challenges, with

limited human, physical and economic resources, and a possible lack

of offers for an adequate reinsertion and a scarce control of the

execution of sentences, must promote action axes oriented to

penitentiary security, rationalize the use of the deprivation of liberty,

strengthen the institutionalism of post-penitentiary social reinsertion,

among others, highlighting that the system has as its "(...) purpose

around the deprived of liberty, the caution and protection of their

rights, the development of capacities, comprehensive rehabilitation

and socioeconomic reinsertion".) "the purpose of the system is to

safeguard and protect the rights of inmates, develop their capacities,

comprehensive rehabilitation and socio-economic reintegration"

(Villamarín Rodríguez & López M. M.). (Villamarín Rodríguez & López

Moya, 2023, p. 6684)..

Habeas corpus as a protection mechanism for persons deprived of

liberty

Ecuador, being a constitutional country, enshrines a broad category of

rights, which can be claimed through actions in the ordinary

jurisdictional venue, but at the same time it has defined principles for

their application and guarantees in this norm, which "are means

available to the inhabitants to uphold their rights before the

authorities" (Jorge Mateo Villacres-López, 2021, p. 1, p. 1). (Jorge

Mateo Villacres-López, 2021, p. 1).that is to say, they are mechanisms

to promote their effectiveness.

These constitutional guarantees are classified in two, the primary ones

where the normative and public policies are found (at doctrinal level

are added those of institutionalism of the State), and the secondary

ones that are applicable when the first ones are not sufficient to solve

the problem, being the jurisdictional ones that have as purpose to

allow the citizen to use an action, in the seat of the constitutional

justice, so that the effective protection of the rights is fulfilled. Within

this classification there is a subdivision with seven types of actions,

each one for the protection of a specific right, and among them is the

Habeas Corpus, which is activated when a person is deprived of his

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freedom illegitimately, illegally or arbitrarily, from its original

conception.

Habeas Corpus is currently contained in Article 89 of the 2008

Constitution, which states that "its purpose is to recover the liberty of

anyone who is illegally, arbitrarily or illegitimately deprived of it, by

order of an authority or any person, as well as to protect the life and

physical integrity of persons deprived of liberty" (Constituent

Assembly, 2008, p. 40). (Asamblea Constituyente, 2008, p. 40). In

other words, it expressly emphasizes the physical integrity of the

inmates.

In the words of the Inter-American Court of Human Rights

(hereinafter IACHR), "prisoners are overcrowded and subjected to

violence by their co-prisoners or their guards" (IACHR, 2021, p. 2021,

p. 207). (IACHR, 2021, p. 247).For this reason, the jurisdictional

guarantee of Habeas Corpus protects three fundamental rights:

liberty, life, and personal integrity. This tool can be activated

individually or collectively when the detention is abusively executed,

or when the deprivation of liberty generates affectations to related

rights such as physical integrity.

In this sense, it is understood that "prison security guarantees security

and social defense" (García, 2022, p. 520). (García, 2022, p.

520).Therefore, the fact of being deprived of liberty temporarily or

permanently, due to a sanction imposed by the judges on a certain

person for committing a conduct contrary to the law, does not imply

that he deserves a degrading treatment or space for his rehabilitation,

which is why the State has established mechanisms to ensure that in

case of a violation of these essential rights, they can access

jurisdictional mechanisms.

Verifying decisions of the IACHR. "A relevant case corresponds to the

one filed by the "Instituto de Reeducación del Menor" v. Paraguay"

(Inter-American Court of Human Rights, 2020). (Inter-American

Court of Human Rights, 2020).In its judgment of September 2, 2004,

the Court stated that it is the obligation of the State to be the guarantor

of the rights to life and personal integrity of the PPL, generating

minimum conditions of human dignity in detention centers and "that

the manner and method of exercising the measure does not subject

him to anguish or difficulty that exceeds the inevitable level of

suffering intrinsic to the detention", however, the "inhuman and

degrading conditions, exposing them to a climate of violence,

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insecurity, abuse, corruption, distrust and promiscuity" evidenced the

accreditation of physical, psychological or moral violence that

aggravates the conditions of detention, which was the subject of a

generic habeas corpus.

Within the framework of the Organic Law of Jurisdictional Guarantees

and Constitutional Control (hereinafter LOGJCC), it states that

Habeas Corpus has several fields to extend its scope of protection of

ppl, thus reflecting its protection of related rights either against public

authorities or in relation to any person, Therefore, it guarantees

deprivation of liberty after a written and reasoned order by the

competent judge, except in cases of flagrante delicto, avoiding forced

exile, torture, cruel, inhuman or degrading treatment, immediate

release after the pertinent judicial disposition, or if the preventive

detention has expired, the impediment of incommunicado detention

or being subjected to treatment that violates their human dignity.

Therefore, in addition to the generic habeas corpus, there is the

corrective habeas corpus whose "claim is aimed at ceasing acts of an

injurious nature, in addition to seeking reparation for omissions made

by prison officials" (Velastegui Ruiz & López Moya, 2023, p. 6105).

(Velastegui Ruiz & López Moya, 2023, p. 6105).The purpose of this

action is not the freedom of the individual, but the protection of rights

while serving the sentence, noting that these guarantees always seek

reparation, i.e., this action in addition to protecting freedom, seeks to

safeguard related rights such as life and integrity, ensuring that human

dignity is respected and acts that violate fundamental rights are not

carried out.

Effectiveness of the mechanisms of legal protection of the right to

integrity in the ppl (Discussion of results).

In Ecuador, detention centers do not have sufficient physical, human

and economic resources to guarantee the constitutionally recognized

rights of persons deprived of their liberty, since it has been shown that

most of these centers have a population in excess of their capacity and

population limit, This generates precarious conditions that violate the

right to personal integrity of these individuals in its different

dimensions (physical, psychological, moral and sexual), as well as

other related rights such as life, health, food, security, among others.

A key point is that the State must focus on human dignity and with it

the right to a dignified life, being that despite the sanction that weighs

on them, they still maintain their quality of human beings, thus

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emphasizing once again the aspiration of the prison system of

treatment, reintegration and prevention of recidivism, which is

achieved by generating skills and a post-penitentiary control.

One of the issues addressed in this context has been the facts of torture,

cruel or inhuman treatment, highlighting the right of the PPL to

declare before the competent authority the treatment received while

serving the sentence, so that the right to effective judicial protection is

maintained, being that the case is being executed. Under this same

scenario, the actions of institutions such as the Ombudsman's Office

have among their competencies to make on-site visits to these spaces

to determine possible violations of rights, mainly against their

personal integrity, since the conditions they present are not optimal

for the protection and safety of these.

In addition, the Ombudsman's Office must supervise that no acts that

violate human rights are carried out, bearing in mind that acts of

torture, cruel, inhuman or degrading treatment are prohibited, since

this puts at risk the guarantee of the right to personal integrity, and

finally, it must ensure that due process is respected, given that several

inmates are under preventive detention measures and criminal cases

are currently being substantiated. This degree of protection in turn in

the international context is exercised by consulates, in favor of human

rights and due process of Ecuadorians who are deprived of their

liberty.

In case of violation of rights, the Ombudsman's Office can also activate

international protection mechanisms, an example of which is the

Inter-American Commission on Human Rights, which has adopted the

principles and good practices concerning persons deprived of liberty,

additionally there is the subcommittee for the Prevention of Torture or

the Committee against Torture of the UN who issue recommendations

to Ecuador for internal adjustments , which became evident against a

series of violent events that occurred in prisons. On the other hand, the

Universal Declaration of Human Rights and the International

Covenant on Civil and Political Rights guarantee the protection of the

rights of PPL, however, despite the existence of these international

mechanisms, violence and insecurity in prisons is a latent problem.

It is worth mentioning that the COIP establishes a disciplinary regime,

detailing minor, serious and very serious offenses by inmates, which

can be perpetrated in prisons and are punishable by the authorities,

including participating in fights or quarrels, deliberately endangering

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their personal safety and that of the rest of the individuals in the

prison, as well as failure to comply with the orders of those in charge

of the prison, being their substantiation the competence of the

authority determined in the center, however, the PPL will have the

right to challenge the sanction before the judge of penitentiary

guarantees. This regime also safeguards security in the different

centers of deprivation of liberty, where, as detailed, it provides for the

actions of administrative and jurisdictional authorities.

Finally, with a jurisdictional approach for the protection of the right to

physical integrity and related rights, there is the guarantee of Habeas

Corpus, where there is not only this action in a generic way, but also

the corrective type that, although it does not seek to restore the right

to liberty, it does protect the PPL from violations in the centers while

they are serving their sentence. By using the jurisdictional guarantee

of Habeas corpus, reparation is sought for the damage caused, so that,

in this guarantee with a corrective approach, the specific case must be

analyzed in order for the judge to define the compensation.

In addition, these violations can be committed not only among

inmates, but also by public servants, officials and employees, in

accordance with Article 11 of the Constitution of the Republic of

Ecuador "and all persons acting in the exercise of public authority shall

be obliged to redress violations of rights" (Constitutional Assembly,

2008). (Constituent Assembly, 2008)(Constituent Assembly, 2008),

generating on the one hand the civil, criminal and administrative

liability and on the other hand the patrimonial liability of the State.

Conclusions

The penitentiary system in Ecuador has been established as a means

of punitive application for those individuals who have committed a

criminal act typified in the criminal law, which will be under the

administration of the competent authorities who must ensure the

effective functioning of the detention centers. Although this

mechanism has been established as a sanctioning method, there are

different aspects that must be taken into account regarding the

treatment to be given to the PPL, which must comply with the

constitutional provisions and other regulations of the legal system,

including international instruments, with emphasis on the axes of the

system which are the execution of the sentence, and in turn

rehabilitation, reintegration and non-repetition.

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The Ecuadorian Constitution recognizes persons deprived of their

liberty as a group of priority attention due to the fact that they are

confined in a center, understanding that they do not have access to

their right to freedom of movement, in this sense, this may result in

the violation of other constitutionally recognized rights, therefore,

affirmative actions or special measures should be applied to balance

their situation, since this limitation does not lead to a normative or

social abandonment. At the international level, various treaties and

conventions have been signed with the aim of guaranteeing the

protection of inmates in order to maintain their human dignity and

personal integrity and to establish minimum conditions for their

treatment, including the prohibition of cruel and inhuman treatment,

such as the Mandela Rules, which establish the treatment that inmates

must receive and prohibit the application of degrading disciplinary

measures; the Convention against Torture, which is based on the ideal

that all human beings are equal and is against treatment involving

mistreatment and humiliation; the Inter-American Convention to

Prevent and Punish Torture seeks to establish preventive measures

against the violation of personal integrity by preventing actions that

violate dignity.

Habeas corpus is a constitutional and jurisdictional guarantee that

defends the right to individual liberty of any person who is deprived of

it illegally, arbitrarily and illegitimately, this guarantee plays an

important role in the protection of the fundamental rights of prisoners,

This guarantee plays an important role in the protection of the

fundamental rights of prisoners, since it ensures that arrests are made

in compliance with all legal requirements, which extends its protection

to the right to physical integrity of the individual, in addition to related

rights, several of which are linked to the execution of sentences, where

the corrective Habeas corpus is activated. Another tool that can be

activated is to resort to the Ombudsman's Office, which is empowered

to supervise that inhuman or degrading acts that violate human rights

are not carried out in the centers of deprivation of liberty, that is to say,

it must ensure that cruel treatment or torture is not applied, which is

a violation of personal integrity, it is also responsible for ensuring

respect for due process, and in the international context it will be the

competence of the consulates. On the other hand, at the international

level there are protection mechanisms such as the Inter-American

Commission on Human Rights, the Subcommittee for the Prevention

of Torture or the Committee against Torture of the UN, which issue

recommendations to Ecuador to implement internal adjustments in its

legal system, or in cases that go as far as the Inter-American Court, it

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can lead to evidence of state responsibility in a process, which includes

that which is of a patrimonial nature. It is also worth mentioning the

compendium of other options to safeguard the management of the

centers, and thus the integrity of those who remain in them, such as

the disciplinary rules that govern them and finally the civil, criminal

or administrative liability of the different public sector servants,

officials and employees for the affectation of the normatively

recognized rights.

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