Last week, Ecuador’s National Court of Cassation—its highest appellate court—rejected all appeals relating to guilt for the 20 defendants* in the Bribery 2012-2016 case. What this means is that among other things, former Ecuadorian President, Rafael Correa will be banned for life from running for public office in Ecuador.
This was the third trial that the defendants faced regarding the charges of bribery, and with the exception of the reduction in sentences for two of the guilty parties, the outcome was the same—guilty as charged.
Earlier Appeal confirmed guilt and modified some sentences
Back in late July of this year, the defendants had their second judicial setback when the National Court of Appeal denied their legal challenges and ratified the original judgment against them (which was handed down on April 7, 2020).
For Correa and his former Vice President, Jorge Glas, the court set their prison sentences at 8 years each. Glas has been in jail for three years on other charges; Correa fled to Belgium in 2017 and now will have to wait and see if Ecuador can use its judicial powers to extradite the former President back to Ecuador.
Back in July, the court said that Correa and Glas were “mediated perpetrators,” or to use another term, “authors,” of the crimes in the case, meaning that in addition to their prison sentences, they must repay Ecuador the amounts of $778,224.01 each.
The Court also affirmed that 16 of the other 18 defendants were Autores Directos (direct authors) and Coautores (co-authors) of the crimes and would also be held be responsible to pay restitution of $778,224.01. The two remaining defendants were found to be in one case a “Co-author who received benefit for being an effective cooperator” and in the second case an “Accomplice.” Each were mandated to repay the government $368,632.43.
In addition to the instigating authors, Correa and Glas, those identified as Direct Authors were Rafael Córdova (Shareholder of Mercantil Técnica Córdova), Bolívar Sánchez (Majority shareholder of Sanrib Corporation), Mateo Choi (Attorney-in-fact for SK Engineering & Construction), William Phillips Cooper (Shareholder of the companies Azulec SA and Caterpremier), Víctor Manuel Fontana (Majority shareholder of Fopeca), Édgar Salas León (Shareholder of Construcciones y Servicio de Ingeniería), Ramiro Galarza (Shareholder of Construcciones y Servicio de Ingeniería), Teodoro Calle (Majority shareholder of Técnica General de Construcciones), Pedro Verduga(Majority shareholder of Equitesa, Equipos y Caminos SA) and Alberto Hidalgo (Deputy Chief of Hidalgo & Hidalgo).
Those labeled as Co-authors (all government officials) were Vinicio Alvarado (former Minister of Tourism), Alexis Mera (former Legal Secretary), María de los Ángeles Duarte (former Minister of Housing), Walter Solís (former Minister of Public Works), Christian Viteri (former Legislator), Viviana Bonilla, (current Legislator).
Pamela Martínez, a former Presidential Adviser and Constitutional Judge was the Co-author who received benefit for being an effective cooperator (Martinez was the government’s main witness in the Bribery trial), and Laura Terán, former Assistant to Pamela Martínez was the Accomplice.
At that time, the Court unanimously denied the appeals of 16 of the defendants, but partially accepted the appeals of Mera and Solís, in relation to the loss of “participation rights” for a period of 25 years. The court also partially accepted the appeals of Laura Terán and businessman Alberto Hidalgo for a reduction in sentences. Terán, who had already served 6 months in jail, had her sentence reduced to 3 month and 6 days on appeal; Hidalgo had his sentence reduced on appeal to 32 months.
Pamela Martínez, because of her cooperation with the Prosecutor’s Office, was left with a reduced sentence of 3 years and 2 months in prison as a co-author.
All other defendants were given sentences of 8 years of prison.
Mera and Solis were both successful in their appeals and had the removal of their “participation rights” reduced from 25 years to 8 years. Because of this, by order of the Court this reduction was applied to all of the defendants.
At the reading of the judgements in July, the Court said that Rafael Correa, in the exercise of the highest public power, in order to “perpetuate” his movement in political power at the national and sectional level, in his capacity as leader of his political group, “instigated and advised his select group of public officials related to his government, people he trusted,” to “accept offers or promises, receive gifts or presents from a group of businessmen.”
The Court also said that “the conduct of the former President in this case was active and in no way neutral, that he had full knowledge of everything and, even, would have received part of the economic values resulting from the offers or promises given by the businessmen.” The members of the Court were referring to the deposit of $6,000 in Correa’s personal account.
Third strike for Correa and Glas
Following this past week’s third ruling and his lose in the country’s highest Appellate Court, Correa said, “I was prepared for this, but it does not imply that it does not hurt,” says Rafael Correa upon hearing the ratification of his sentence.
After learning last Monday that the National Court had confirmed his prison sentence of 8 years, Correa said that “it will not be sustained over time,” believing that in the future, the country’s politics will shift, somehow allowing him to continue to fight the conviction.
The ex-President said that he this appeal process was “rushed,” taking only 17 days—he claimed that typically these cases against private citizens take at least 4 months. He blamed the speed of the trial on politics, calling the judges in the case, “handyman and commissioned.”
After recalling that he gave part of his life to Ecuador as its President, he said he had lived in Ecuador for 25 years and that he owed his family a return to Europe, and that is why he resides there now—implying that his leaving Ecuador had nothing to do with his fear of recrimination for any of his actions as President.
He added, “I’m fine here, the Belgian justice system does not pay the slightest attention to me.”
Correa said that he hopes his supporters achieve big wins in the next election even though he will be staying in Belgium. With regard to the upcoming election, he said that he feels “calmer because they have taken a weight off my shoulders,”referring to his inability to run (because of the Court’s ruling) as a candidate for Vice President as his followers wanted, or as an assembly member abroad.
Correa said that essentially all of his chances at getting his conviction overturned in Ecuador have been exhausted, so he will seek international options.
“Personally, the persecution of people in Ecuador hurts me much more, like Jorge Glas who is in prison.They take away our life pension, the rent of my house, but we will have to continue fighting.”
Oddly, Correa said that he never really wanted to have so much control in Ecuador. “Power has never interested me, it hindered me, although it is necessary to serve.” He recalled that “he had accumulated power, democratically, to serve others.”
In this past week’s majority ruling the court also rejected the appeals made by Correa’s co-conspirator, former Vice President of Correa, Jorge Glas.
The Court said in its ruling on Correa and Glas’s appeals, that they had already been cleared in the appellate hearing judgment of July 22, 2020, and that the way in which they had been raised again would lead to an analysis “forbidden” for the stage of cassation, in other words, a new review of the facts, the alteration of the story, and a revaluation of the body of evidence.
The majority ruling also put to rest any question of Correa and Glas’s guilt, saying that the prior evidence presented in the case had proved without doubt that they had been the instigators of the bribery scheme.
“From the amount of evidence provided by the procedural parties, it can be inferred that given the power of command of Rafael Correa and Jorge Glas, their cognitive and volitional influence caused the criminal resolution in the minds of the other defendants, therefore it can be inferred that without their influence the crime would not have materialized.”
Co-defendants fare no better
In the third trial, the judges also ruled the new appeals of or Mera, Alvarado, Viteri and Bonilla, inadmissible. Two appeals by Terán were overruled and the court ratified her guilt and her sentence of 3 months and 6 days in jail. Despite the fact that the Court also overruled an appeal by Martínez, it did reduce her sentence of 32 months to 9 months and 15 days.
The Court also saw no basis for the latest appeals of businessmen Calle, Córdova, Fontana, Galarza, Cooper, Salas, Sánchez, Verduga or Hildago and upheld their sentences of eight years in prison as direct perpetrators.
Lawyers for Sánchez and Viteri said they will file “clarification and expansion” appeals.
Diego Chimbo, Sánchez’s lawyer, insists that his client never gave promises, offers or presents in exchange for any benefit from a public official, since he is not a builder, nor has he nor his company ever been contractors of the State. He says a petition for precautionary measures will be presented to the Inter-American Commission on Human Rights, to “demonstrate the way in which the State has ignored its international obligations to guarantee due process.”
Meanwhile Marcelo Duenas, Viteri’s lawyer, said “this has been a flawed criminal process of nullity from beginning to end.” He added that he has no doubt that this fact will lead more than one of the defendants to exercise their rights in international organizations that are not linked “to political power, or to media pressure, or to private interests.”
He says that Viteri and current Assemblywoman Bonilla were part of the reason why one of the three judges deferred his vote, preventing a unanimous vote on the proceedings.
The judge, Milton Ávila, said neither Viteri nor Bonilla committed the crime of bribery, since they were not at the center of public procurement, but rather were beneficiaries of cash or via invoice crossing. In his analysis, he never denies that the crime of bribery has existed or has been committed, what he points out in his minority vote is that the correct rule to apply for Viteri and Sánchez should have been Article 286 of the previous Criminal Code, whose maximum penalty is six years for the perpetrators and three years for the accomplices.
Ávila clarified that as for the other defendants and their sentencing, he was added to the majority vote.
Regardless of sentencing, rights and political candidacies are over
With this latest ruling from the Court of Cassation, all of the 20 individuals who were convicted will lose certain rights, and more importantly, 9 of them will never be allowed to hold public office in Ecuador again.
This is because in the Ecuadorian Constitution, in Section 6, “Political Representation,” Article 113, Numeral 2, it clearly states that, “the following cannot be candidates to an election by universal suffrage:Those have been convicted and sentenced for crimes punishable by long-term imprisonment or for bribery, illicit enrichment or embezzlement.”
These prohibitions also appear in line 2, Article 97 of the recently (February 2020) updated Organic Law on Elections and Political Organizations of the Republic of Ecuador, otherwise known as the Democracy Code, which states that, “Those who have received an enforceable conviction for crimes punishable by imprisonment, or by bribery, illicit enrichment or embezzlement,” cannot be candidates of popular elections.
The National Electoral Council (CNE) has recently made it clear that once an individual is sentenced for a crime outlined in either of these guidelines, that conviction must be reported by the courts to the CNE, so that it becomes part of the process of qualifying candidates for the general elections of 2021.
In addition to being blocked from running for public office, the 20 defendants in the Bribery 2012-2016 case have also lost the rights of “participation and citizenship” for the term of their sentence.
During this time, they will not be able to “vote, participate in matters of public interest, present projects of popular normative initiative, be consulted, supervise the acts of the public power, revoke the mandate, perform jobs and public functions based on merit, and conform political parties and movements, join or leave them freely and participate in all decisions that they adopt.”
Or, as one judge explained, the defendants will not be able to exercise their civil and political rights while the sentence lasts, and they cannot hold any public office in perpetuity.
Getting the convicted to jail won’t be easy
Once the sentence in the 2012-2016 Bribery case is enforceable—possibly next week—extradition proceedings will begin against at least eight of the 20 people convicted in the case and who are known to be outside the country.
They are:Correa, who has lived in Belgium for more than three years; Alvarado, who is in Venezuela; Solís and Cooper who are in the United States; and the businessmen Córdova who is in The Netherlands and Choi who is in South Korea.
Also, Duarte is a refugee in the Argentine embassy in Ecuador, which is considered the territory of that country. The former legislator Viteri has fled the country and is rumored to be hiding in Venezuela. The current Legislator Bonilla is believed to have fled Ecuador; her whereabouts are unknown.
The extradition procedure is applied in cases of common crimes, not political. And it has to fulfill certain steps and requirements to be enacted. The Ecuadorian Extradition Law, in force since 2000, contemplates a mixed extradition system in which three institutions intervene: the National Court of Justice (CNJ), the Foreign Ministry and the Ministry of Government.
In principle, there must also be extradition treaties between the nations involved in the process, in which the crimes or their equivalents are expressly detailed. These instruments can be bilateral or collective. But if there are not, one can appeal to the principle of “international reciprocity,” that is, cooperation between nations.
The CNJ has to study the legislation of each country and put together a file that will be sent to the Foreign Ministry, asking them to send a diplomatic note—in which it requests the extradition of a citizen from the respective country. In the case of Bribes 2012-2016 case, notes would need to be sent to Belgium, the United States, Venezuela, Argentina and South Korea.
In general, the request for extradition should include a copy of the conviction or the order of preventive detention, the identity of the extraditable and his location (if known), and copies of the criminal laws applied in the case.
When the request for extradition has been placed, and the location of the individual is known, a judicial process is initiated in that country to determine whether or not the request is appropriate.
If the person’s location is not known, Ecuador will need to ask the International Police (Interpol) to issue a “red alert” search for the individual. Before they do anything, Interpol will perform its own analysis of the case to determine if the case is criminal or political. It is at this point that the Ministry of Government will enter the scene, both to make the request to Interpol and to receive any questions they have surrounding the conviction.
Duarte’s case is different because she requested asylum in Argentina. If her request is accepted, she cannot be extradited. What the Ecuadorian government could do is deny her safe conduct to travel to Argentina. This was done, for example, by the British government when Ecuador gave asylum to Australian hacker Julian Assange, who spent almost six years in the Ecuadorian embassy in London.
The extradition process (which does not have expiration or execution terms) can last for years, as has happened with brothers Roberto and William Isaías, the former owners of the Filanbanco, who are in the United States.
They were sentenced to prison for embezzlement and Ecuador has made four extradition requests since 2000 and that all have been denied. While their lawyer says it is because Ecuador has not been able to prove their guilt to the US, Ecuadorian authorities say the tense relationship that existed with between the US and former President Correa may have been the real cause.
There is however a chance that the process could move quickly for some of the fugitives, depending on what country they are residing in.
Ecuador was able to extradite the country’s former National Intelligence Secretary Pablo Romero from Spain last February, after an order of preventive detention was issued against him in October 2018 in the case of the kidnapping of political activist Fernando Balda in Bogota. That took 19 months. Romero was sentenced to nine years in prison a few weeks ago.
Fausto Jarrín, Correa’s defense attorney, is sure that if this request is made against his client, the Kingdom of Belgium will deny it. First, because he says that the sentence “is illegal, unconstitutional and absurd,” and second, “because the extradition treaty that Ecuador has with that nation is very old (it dates from 1887) and has no updated crimes.”
He also says that Interpol has already refused to broadcast a red alert to arrest Correa at the request of the Ecuador, “because human rights norms have been violated, and I believe that this will be the line that international organizations will assume to those of us who come to defend ourselves.”
However, according to a statement from the CNJ, this is how Interpol answered a request to broadcast a red alert against the ex-president months ago.
“… After having carefully examined all the elements concerning the Applicant’s legal situation, the information available to the Commission revealed that the retention of the data in the Interpol Information System was not compatible with Interpol’s obligation to ensure effective cooperation between police authorities within the framework of “respect for the Universal Declaration of Human Rights (Art. 2 of the Interpol Statutes).”
This was the first time Ecuador requested Correa’s extradition, when he was also called to trial for the Balda case. It is believed that Ecuador made a second request to Interpol a few weeks ago when Correa’s conviction for the 2012-2016 Bribery case was ratified after his second appeal.
Other issues outstanding for Correa
Even if former President Correa is not extradited back to Ecuador, the country is not done with making him pay for what it considers having been criminal activity on his part. One of the indirect consequences of his conviction in the 2012-2016 Bribes case is that he—and Jorge Glas—will stop receiving payments on their lifetime pensions.
This is because there was a reform to the Public Service Law (LOSEP), included in the Humanitarian Law, which eliminated these remunerations to ex-Presidents and Vice Presidents who have been sentenced for crimes of embezzlement, bribery, extortion or illicit enrichment.
Correa’s conviction for bribery is included in the reform of LOSEP made by the Assembly. In the Fourth Reform Provision that amended the first paragraph of Article 135, the following text was incorporated: “Except for the benefit established in this Article, the leaders who have not concluded the period for which they were elected because they were dismissed in accordance with one of the causes established in the Constitution, or that have been sentenced for crimes of embezzlement, bribery, extortion, illicit enrichment, crimes against life, against humanity, against public faith, and / or assault or sexual violence.”
This section is in particular reference to the lifetime pensions for Constitutional Presidents and Vice Presidents. The monthly lifetime pension that Correa receives is $4,226.25 ($50,715 per year); Glas receives $4,057.50 monthly of $48,690 annually.
The change to this law was, published in the Official Registry, has been in effect since June 22.For Cristian Romero, Glas’s lawyer, the regulations were specifically directed against the previous regime.
“For more than 25 years this situation had not been touched or altered and just when the Bribery case began and was born, they decided to make this change,” said Romero.
Reparations are not being lost in the shuffle
Even though attention is now being focused on how to get the convicted fugitives brought to Ecuador, the effort of collecting the court ordered reparations from all of those convicted in the Bribes case has not been stalled.
In fact, an asset recovery unit of the State Attorney General’s Office will be in charge of comprehensive reparation in favor of the Ecuadorian State in the 2012-2016 Bribery case.
Íñigo Salvador, the Attorney General, said that the special unit was created last June and is made up of a group of lawyers who report directly to him. He added that they are in charge of ten or twelve cases of the highest political, economic and social relevance. The Bribery case will come first before all other cases.
There are $14,745,297.16 that must be paid as compensation by those sentenced in the case as part of comprehensive reparation to the State.
Salvador explained that as soon as the sentence is enforced by the court, the execution process will begin. The first aspect, he said, is to try to determine what assets each of the defendants have.
He said it will be necessary to “unravel” the trail of the assets that at the time of the commission of the offense were under the domain of each of those involved.In order to guarantee compliance with the restitution order of the 20 defendants, their real estate holding are the first assets being seized.
“What is clear is that if these people were capable of designing such a sophisticated corruption network, it is highly probable that one of the objectives of that network has also been to hide the assets resulting from these acts of corruption and the assets with respect to which the State could compensate itself.
So, what you have to do is follow the history of ownership of each of the assets, reverse that history of ownership through judicial decisions, which may be national when those assets are in the country or they may be decisions of foreign courts when those assets are outside the country,”said the Attorney General.
According to Salvador, in these processes of hiding ownership of property there are front men, as well as people of good faith who have acquired an asset without knowing that it was the product of a criminal act. He added that it is probable that the moment his office tries to deprive them of those assets, they will resort to the justice system. In these cases, judicial resolutions will be required.
The Attorney General’s office can seize assets of those involved even if they are in the name of third parties, and the investigation of the “figureheads” will go back to 2012.
Salvador added that when it comes to bank accounts or financial assets, a judicial process will not be necessary. He expressed that it is enough that there is an agreement between countries for that nation to deliver the goods to the Ecuadorian government.
*Detailed List of Individuals Sentenced Bribery 2012-2016 case
Former officials convicted as instigating authors, co-authors and accomplices
Rafael Correa, former President of the Republic
Convicted as a “mediate perpetrator at instigation,”he received a prison term eight years. He currently lives in Belgium. He has also been called to trial for the kidnapping of the activist Fernando Balda, but the process is suspended, as this crime cannot be tried in absentia. The Prosecutor’s Office is investigating him for other cases.
Jorge Glas, former vice president of the Republic
Convicted as a mediate perpetrator at instigation, with a penalty of eight years in prison. He is currently serving a six-year prison sentence in the Latacunga jail for illicit association in the Odebrecht case. He also has a court appeal for alleged irregularities in the exploration of the Singue field.
Vinicio Alvarado, former Minister of Tourism
Considered the “strong man” of propaganda in the Rafael Correa regime, also held the Secretariat of the Administration of the Presidency. He was convicted as a co-author of the crime of aggravated passive bribery; his penalty is also eight years in prison. It is known that he is living in Venezuela.
Alexis Mera, former Legal Secretary
Was also sentenced to eight years in prison as co-perpetrator of the crime of aggravated passive bribery. At the moment, he is under house arrest at his home in Guayaquil. He wears an electronic ankle bracelet. He was the “legal brain” in the Rafael Correa regime and, after leaving power in 2017, he became Correa’s personal lawyer.
María de los Ángeles Duarte, former Minister of Housing
She was also Minister of Public Works and aspiring to become the Mayor of Guayaquil. She was sentenced to eight years in prison as a co-author. Until a few weeks ago, she was complying with the measure of periodic presentation to the authorities and the use of an electronic bracelet, but she entered the Embassy of Argentina in Ecuador to request political asylum.
Walter Solís, former Minister of Public Works
He was also Minister of Housing and National Secretary of Water. He was sentenced to eight years as a co-perpetrator of the crime of aggravated bribery. He was also called to trial for embezzlement in the contracting of works on water projects in Manabí. But the trial hearing has been postponed several times.
Christian Viteri, former AP legislator
She was sentenced to eight years in prison for co-perpetrating the crime of aggravated bribery. She was also accused of participating in the irregular management of the electoral spending of Viviana Bonilla, who was a candidate for Mayor of Guayaquil for Alianza PAIS in 2014. The former legislator was her campaign manager.
Viviana Bonilla, Legislator
She was the Governor of Guayas and a candidate for Mayor of Guayaquil in 2014; the Prosecutor’s Office pointed out that her campaign was financed with illegal funds. She was sentenced as a co-author to eight years in prison. Bonilla was free on the precautionary measure that she was to make the periodic presentations to the authorities; she is believed to have fled the country and her whereabouts are unknown.
Pamela Martínez,former Presidential Adviser, former Constitutional Judge
She was convicted as a co-author of the crime of aggravated passive bribery. Initially she was sentenced to eight years but received a 40% reduction for the effective cooperation she gave the Prosecutor’s Office, or 32 months. The Court of Cassation her a further reduction to in her sentence to 9 months and 22 days.
Laura Terán, former Assistant in the Office of the Presidency
She was an assistant to Pamela Martínez in the Presidency of the Republic and in the Constitutional Court. She was sentenced as an accomplice for aggravated passive bribery but received benefits for being an effective cooperator of the Prosecutor’s Office. Her sentence was three months and six days in jail. She served six months in prison before the reduction of her sentence.
Businessmen convicted as direct authors
Shareholder of Mercantil Técnica Córdova (Metco)—a company that according to filings was handled by Jorge Glasfor the delivery of bribes through the crossing of invoices between September 5, 2012 and November 27, 2014, and deliveries in cash. He was sentenced as a direct author to eight years in prison.
Majority shareholder of Sanrib Corporation—a company that according to filings was handled by Jorge Glasfor the delivery of bribes through the crossing of invoices between October 13, 2012 and March 1, 2014, and money deliveries cash. He was sentenced as a direct author to eight years in prison.
He is registered as the attorney-in-fact for SK Engineering & Construction (SK—a company that according to filings was handled by Jorge Glasfor the payment of bribes through the crossing of invoices between October 2, 2012 and April 21, 2014 and deliveries in cash. He was also sentenced to eight years in prison as a direct author.
William Phillips Cooper
Registered as a shareholder of the companies Azulec SA, in liquidation, and Caterpremier—a company that according to filings was handled by Jorge Glas for the payment of bribes, receiving in 2014 the award of a contract with EP Petroecuador through the first company. Sentenced to eight years in prison as a direct author.
Víctor Manuel Fontana
Majority shareholder of Fopeca—a company that according to filings was handled by María de los Ángeles Duarte for the payment of bribes through the crossing of invoices between January 9, 2013 and January 10, 2014 and cash deliveries, receiving in exchange the award of 14 works contracts. Sentenced to eight years as a direct author.
Édgar Salas León
Registered as a shareholder of the company Construcciones y Servicio de Ingeniería (Consermin)—a company that according to filings was handled by María de los Ángeles Duarte for the delivery of bribes through the crossing of invoices and cash deliveries. The company would have received seven works contracts. Sentenced to eight years in prison as a direct author.
Registered as a shareholder of Construcciones y Servicio de Ingeniería (Consermin), —a company that according to filings was handled by María de los Ángeles Duarte for the delivery of bribes through the crossing of invoices between November 6, 2012 and January 21, 2014, and cash deliveries. Sentenced to eight years as a direct author.
Majority shareholder of the company Técnica General de Construcciones (TCG)—a company that according to filings was handled by María de los Ángeles Duarte for the payment of bribes through the crossing of invoices and cash deliveries. He received the award of 14 contracts. He was sentenced to eight years in prison as a direct author.
Appears as the majority shareholder of Equitesa, Equipos y Caminos SA—a company that according to filings was handled by María de los Ángeles Duarte and Walter Solís for the payment of bribes. It received, according to the case file, the award of 17 works contracts. He was sentenced as a direct author to eight years in prison.
Registers as Deputy Chief of Hidalgo & Hidalgo. In the first instance, he was sentenced to eight years as a direct author, but this was amended in the second instance and he received a sentence of 32 months as an accomplice. The Court of Cassation changed his status from accomplice to direct author, but the sentence was left to 32 months in jail.