A. Situation of private military and private security companies and licensing the use of force

14. According to information received by the Working Group when meeting with the Ministries of Interior, Defence and Labour, and the National Police, respectively, the procedure to establish a PMSC in Ecuador appears to be the following: (a) registration as a limited liability company in the business register; (b) obtaining a licence from the Ministry of Defence; (c) obtaining a licence from the National Police; (d) obtaining a licence at the Ministry of the Interior; (e) if arms are to be used, the National Police issues licences and maintains control over the existence and calibre of such weapons through the “Centre of Operations for Private Matters”. When a PMSC has been licensed, the so-called “Superintendente de Compañías” institution registers the PMSC and performs a monitoring role. Once a PMSC recruits staff, the Ministry of Labour also becomes involved, and performs an additional supervisory function. The Working Group was informed that, under the Law on National Security, the Ministry of Defence can cancel and withdraw licences if warranted. The Working Group was also informed of the existence of a “white book” manual for army actors and operations, which lists activities which face criminal and civil punishments; for the more serious offences the Criminal Code applies.

15. NGOs informed the Working Group that individuals recruited by PMSCs in Ecuador are often primarily retired police and army personnel. In discussing the average background of private contractors with the Ministry of Defence, the Working Group was informed of their understanding of the preference of PMSCs to hire professionals, including ex-military personnel, who have already been trained on performing security services. The Working Group was informed by the Ministry of Defence that, among the criteria to establish a PMSC in Ecuador, it must have one partner or shareholder who is a former army officer. However, NGOs also highlighted to the Working Group that, according to article 3 of the Law on Companies, an employee is not allowed to be an active serving employee of the armed forces or police; only retired personnel should be involved in PMSCs. The Ministry of Labour stated to the Working Group that PMSC staff in Ecuador were often abused and exploited, including by working more than 10-12 hours per day for less than US$ 200 per month. The prospect of being hired by one of these companies and earning US$ 1,000 per month for work abroad provides a strong incentive and explains the supply of interested, often unemployed, security personnel in Ecuador.

16. The National Police informed the Working Group of a new human rights unit within the police providing staff training. The National Police has suggested to include a training component on international human rights standards also for employees of private security companies, in a module in the training organized for PMSCs on the use of weapons. The Working Group discussed the matter with the Ministry of the Interior, which indicated that such training could be offered to PMSCs at the “Technological Institute”, similar to the training currently offered to national police. The Ministry of the Interior also referred to draft regulations which could set up training centres for their staff, and which in time could possibly be accessible also for training of PMSC staff. The Ministry of the Interior also informed the Working Group of the establishment of a trade association of PMSCs in Ecuador. While not including all PMSCs, the trade association includes several legally registered and licensed PMSCs and could provide a vehicle for regulatory initiatives by the industry to complement international and national regulatory frameworks.

17. The Working Group notes the multiple risks involved when handing the functions of public security to private entities. To this end, the Working Group emphasizes the obligation of the State according to article 17 of the Constitution of Ecuador, which guarantees to all inhabitants, without distinction, the free and effective exercise and the enjoyment of the rights enshrined in the Constitution and international instruments to which Ecuador has adhered.

18. The authorities and NGOs in Ecuador informed the Working Group of increased outsourcing of the use of force, and in particular security services, to private actors. Although article 183 of the National Political Constitution grants to the National Police the function of guaranteeing security and public order, two tendencies are recurrent: (a) the surrender of this privilege to private entities, with consequences such as the presence of multiple actors in controlling security; and (b) the privatization of services provided by the police, with consequences such as excluding people who cannot afford to pay for them and distracting the police from their primary functions and constitutional obligations.

19. The Working Group notes that the recent proliferation of PMSCs in Ecuador is often attributed to the need to fill gaps in law enforcement and provide security in urban and in rural areas. In meeting with the Ministry of Labour, the Working Group was informed of an increasing number of companies registering security guards and providing protection of property. The Under-Secretary responsible for multilateral relations reported that the Armed Forces had not privatized security services and that, moreover, the oil companies had at no time sought the help of the Ecuadorian Army in recent years in guarding oil installations. The Ministry of Foreign Affairs submitted that activities of security guards providing additional protection outside banks are in no way different from similar functions performed in many other countries. In meeting with the Ombudsperson, the Working Group noted this institution’s estimation that Ecuadorians, in general, consider that the growth of PMSCs in the country has enhanced their security without violating their human rights.

20. The Working Group was informed by the National Police that the total number of national police amounted to 42,000 policemen, which does not include the separate entity of municipal police. While the estimates of PMSCs in Ecuador vary, representatives of NGOs submitted to the Working Group that approximately 40 per cent are not registered, which was noted by the NGOs as indicating diminishing State control of PMSCs.

21. The Working Group was informed by NGOs of a situation in Guayaquil, where municipal authorities had subcontracted private security firms as a temporary measure until sufficient numbers of national police officials had been recruited and trained to meet law enforcement requirements. According to media reports, high crime rates in the city (one robbery every 21 minutes), widespread kidnapping, robberies of banks, public and private property, encouraged municipal authorities to hire private security companies to guard over 40 public installations considered particularly at risk.[5] After a bidding process, a private security company won a US$ 1,314,000 contract. Under the contract, the guards were required to be unarmed, while their tasks included facing dangerous local crime. Several guards have been wounded for lack of appropriate protection elements in the exercise of their duties.[6] The Working Group was informed by an NGO of one example of the consequences of this privatization of security. On 26 July 2005, a person was robbed by five persons in a mall in Guayaquil, just 25 metres from a location where two security guards had been hired by the municipality. Although bystanders activated alarms, the guards alleged that they could neither move nor undertake any other action because they had been assigned merely to work in the place where they were physically located.[7]

22. The Working Group considers that the circumstances and situation in Guayaquil invite further reflection of Ecuadorian authorities. The question can be raised of why the allocated funds to hire private security guards were not directed to enhance the resources of the National Police working in this municipality. The Working Group noted one argument which NGOs reported as used in favour of this arrangement, which was that private guards can guarantee their work in a professional manner, whereas the “national police is unarmed, not well paid and infiltrated by corruption”, as reported in one media comment.[8] NGOs informed the Working Group of their concerns about the effectiveness and even legality of this privatizing measure.[9]

23. The Working Group received information from NGOs that a similar situation has arisen based on allegations that the National Police charges entertainment entrepreneurs, and even other State institutions, for providing security to private enterprises. The Working Group was informed that this practice was normalized by Special Police regulation signed by the executive on 12 October 2005. Public accounts indicate that some 900 serving officers belong to this police force (2.5 per cent of the total).[10] In the view of the Working Group, such a measure would transform and limit the National Police into an entity that offers security to those who can afford to be secured.

24. The Working Group was informed that the National Association of Security Companies denounced this regulation as violating the Law of Surveillance and Private Security, which in article 3 prohibits active public force members from being involved with the security and surveillance companies. By charging entities and individuals for security services, this would transform the National Police into something very similar to a private security company. State resources would in this case be used for private and commercial ends, while using public uniforms, facilities, weapons and ammunition. Furthermore, the important principle of the State providing equitable service to every individual in Ecuador would be infringed, and alter the social contract between the State and its inhabitants. The Working Group considers that such privatization of the public service of maintaining security could violate constitutional principles and the equal enjoyment of rights under international law.

25. A third example presented to the Working Group by NGOs concerns the case of the Juntas de Defensa del Campesinado (peasants’ defence groups). The Ecumenical Commission of Human Rights (CEDHU) has carried out monitoring of the processes of private security and the actions of self-defence groups, and registered information about 47 accusations, involving 87 victims having suffered violations of their human rights due to the Juntas de Defensa del Campesinado.[11] The Working Group was informed by NGOs that Juntas de Defensa del Campesinado act in cases of security, land conflicts and common crimes. In many of these cases, they apparently assume functions of public authorities, with accusations of abuses to include violation of the right to privacy, acts of tortures and degrading treatment, homicides and disappearances, as exemplified in the case of Mr. Fredy Nuñez, who went missing in 2001.[12] The Working Group received a list from an NGO of all penal processes underway against the leaders of the Juntas de Defensa del Campesinado.

Date: 2015-12-24; view: 610