PERSECUTION / Isaias case
10 years violating basic legal principles and human rights.

A lawsuit without reports or knowledge and totally unsubstantiated

In Ecuador criminal proceedings for embezzlement (abuse or misappropriation of public funds) cannot be filed prior to a specific preliminary examination by the Comptroller General of the State in which it reports to the Judiciary that it has found evidence of criminal liability against certain persons.

This special examination is fundamental. It is a technical auditing tool, which provides guidance on complex issues that judges often do not have sufficient prior knowledge, given its specialty. In theory, no embezzlement proceedings should proceed without such a report. In the case against the Isaias brothers there was never any examination or study conducted by the Comptroller General.

Charged for an act not enacted as a crime

One of the principles tenets of law: is "nulla lege sine Nullun poena crime." It means no one should be convicted of an act, if at the time it was committed it was not deemed by law to be a crime. It is a logical principle. If an act is not determined by law to be a crime then no one should be accused of it.

The crime of bank embezzlement was enacted n Ecuador to be applied to administrators, directors, executives or owners of private banks on May 13, 1999. Roberto and William Isaias ceased to be the directors and owners of Filanbanco on December 2, 1998, five months and eleven days prior to the date said crime, of which they were accused of, was put on the books. It is that simple.


The Supreme Court dismissed the charges against the former administrators of the other banks like Banco Popular and Bancomex who were also accused of embezzlement because the crime did not exist at the time, precisely because they had ceased their functions before the law was passed in 1999.   Why did they discriminate and convict Roberto and William Isaias for a crime that not only did they not commit, but was not even classified as a crime during the time of their management?

Violation of the right to a defense

During the first judicial stage, the Public Ministry issued a prosecutorial judgment in which the Isaias brothers were not accused of bank embezzlement. Obviously that was the reason why the defense did not submit any proof to the contrary during the hearing due to the absence of the accusation.


However, the President of the Supreme Court, the presiding judge, issued a summons in 2003 for a full trial charging embezzlement but for reasons other than those that gave rise to the initial case, without any allowing the defense the opportunity to present its evidence. This prevented the accused from defending themselves or in other words left them defenseless.

Violation of the right to appeal

The new Constitution of Ecuador, issued by the Assembly of Montecristi under the sponsorship of the Correa regime and subsequently approved by referendum, incorporates in Article 76.7.m the right to an appeal or another hearing on all judicial decisions where a person’s fundamental rights are affected, and not just final judgments.

However, the Correista courts have denied on numerous occasions the right to appeal on judgments affecting the fundamental rights of the Isaias brothers alleging that those are not final rulings. Why are the guarantees theoretically assured in the current Constitution ignored in this case?

 

Violation of the right to an independent justice

The judges of the First Criminal Chamber of the National Court (Hernan Ulloa Parada, Luis Moyano Alarcon and Milton Peñarreta Alvarez) that on May 12, 2009 decided to prosecute the Isaias brothers later declared themselves incompetent to continue hearing the case. They finally acknowledged their lack of impartiality, but only after issuing a ruling that allowed the trial to continue against the Isaias brothers.


The judges Mazzini, Salazar and Rojas who inherited the case highlighted the legal violations throughout the entire bank embezzlement case. The judges meticulously narrated the legal and constitutional reasons to support their ruling of January 15, 2010 where they decided to acquit the Isaias brothers on the embezzlement charge because they could not be accused of a crime that was not contemplated by law at the time it was committed.

After several public statements questioning the ruling made by Rafael Correa, the prosecutor and his Assemblymen these judges were impeached and prosecuted. To replace them the President of the National Court, José Vicente Troya, came up with the term “'occasional associate judges” and appointed three new lawyers that were not judges and made them responsible for the case. They were seated by May 6, 2010. Just eleven days later they annulled the January 15th decision enabling the case against the Isaias brothers to continue.


The occasional associate judges (Gerardo Morales Suarez, Jaime Santos Besantes and Gustavo Durango Vela) are not career judges. From this court of exception or ad hoc court expressly forbidden by the Constitution the aforementioned judges completed the task they were commissioned for – ruling against the Isaias and calling the judgment of January 15 “non-existent”.


The term “non-existent” is unprecedented in judicial judgments it is not found anywhere in the Ecuadorean legislation and in reality is equivalent to making a ruling disappear. It was a term illegally and illegitimately conceived by the correista power to specifically target and apply against the Isaias violating their rights in a frightening manner.


Once the accomplished their mission, the “rental judges” returned to their previous employments. The correismo pretense was satiated and they got over on the independent judicial system. The impeached judges Mazzini, Salazar and Rojas won the case against them, they were declared innocent and returned to their posts on the bench in spite of the fact that their previous ruling continues in the state of “non-existence”.

Violation of the presumption of innocence

On July 8, 2008, the Correa government confiscated the assets, businesses and media of the Isaias brothers and others without a ruling from the legal proceedings being held against them.  Thanks to that Illegal act, the Government now controls the highest rated media in the country from where it manipulates public opinion, and also enjoys a significant infusion of money from the other confiscated businesses with no accountability to anyone.


The Constitution of the Republic as well as a great number of international treaties on human rights to which Ecuador is a signatory, hold the presumption of innocence to be a cornerstone of the criminal justice system. No citizen is guilty of any crime until they have been found guilty by a competent judge. Everyone is innocent until the judge rules otherwise and the judgment is res judicata. However, in the Isaias case a confiscation has been executed and no one has been formally convicted of anything. A penalty imposed a priori.

Violation of the separation of powers, the pillar of all State of law

The confiscation of the assets, businesses and media of the Isaias brothers explains the permanent interference by the Government and the politicians that support him in this illegal case. Hypothetically, if the Isaias brothers are acquitted the confiscation is further compromised. The pressure placed upon the case is more than obvious. Many of them occur in front of the press or in public official statements.


A day after the confiscation of the businesses and media, the Assembly passed the Mandate 13, a rule that prevents the judiciary from addressing complaints or requests from the defense of the Isaias Brothers. The arbitrary governmental decision was safeguarded and cannot be reviewed or evaluated by law, establishing the impeachment of any judge that accepts any appeal by those affected.


The judges that decided not to continue hearing the case were dismissed hours after the assemblymen Virgilio Hernandez and Cesar Rodriguez of Alianza Pais political movement of the President asked for their removal. The Attorney General immediately launched an investigation and requested precautionary imprisonment for all of them.


The state media and confiscated media –both controlled by the government-repeat the political messages of the Government. Television channels repeatedly broadcast images of pain during the protests by depositors, but fail to mention that the bankruptcy of Filanbanco occurred in state hands and not in private hands.

They hid the fact that depositors were injured by the State and other poorly managed banks, and deceitfully blame the banking crisis on the Isaias brothers. Until 1998, Filanbanco was a solid bank in the hands of the Isaias brothers. The images they broadcast correspond to 1999 1nd 2000 years after the Isaias administration. The manipulation of public opinion seeks to find them guilty in the public’s imagination simply for political gain.


Given this scenario of strong political interference and media pressure it is impossible to find judges willing to try the Isaias case with independence and impartiality. The judges only have two paths: unjustly convict the Isaias brothers of bank embezzlement or face impeachment and prison.

Misapplication of the law of trials in absentia

Ecuadorian law provides that only public officials can be tried in absentia not private individuals. Bank embezzlement is not dealt with in the same manner by law as public embezzlement. Even though the Isaias brothers were never public officials a trial in absentia was ordered against them. They now live in Miami in an obligatory exile due to the judicial uncertainty in their country.

Violations of due process in the Isaias case

 

According to Article 14 of the International Covenant on Civil and Political Rights (PIDCP) violations of law and due process
Following is a summary of the reported violations alleged in this case that have not been received by the courts in a legitimate and timely manner. All rights and guarantees were violated without exception and are listed as follows:

IN CRIMINAL PROCEEDINGS

- The violation of the right to be heard by a competent, independent and impartial tribunal established by law:   


a) Lack of judicial stability and arbitrary impeachments throughout the case;

b) Appointment of exceptional courts such as arbitrary ad hoc and ad hominem courts; and

c) Prohibition to challenge judges contained in the partial reform of the 2009 Code of Criminal Procedure that violates the right to an impartial judge or tribunal.

- The violation of the right to the presumption of innocence established in Article 14.2 of the (PIDCP):     


a) The statements by public officials;

b) The guilty treatment afforded the accused in a criminal trial without final judgment.

- The violation of the right to be tried without undue delay as recognized in Article 14.3.c of the PIDCP. 

IN THE CONFISCATION PROCESS     

- Lack of proceedings to determine their rights as recognized in Article 14.1 and 14.2 of the PIDCP

- Discriminatory elimination of the right to due process and access to justice to enforce civil rights affected by the process of challenges. Constituent Mandate No. 13 (Arts. 14.1, 2.3a and 26 of the PIDCP).

– The violation of the right to not be subjected to the retroactive application of an unfavorable criminal law and the invocation of a new more favorable law recognized in article 15 of the PIDCP.

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