President of FEUE (Ecuador) on humger strike to demand his freedom

Ecuadorian University Student Federation President, Marcelo Rivera, jailed for over ten months in the García Moreno prison, declared today that he was beginning an open-ended hunger strike, to pressure the government and the courts, in demand of his freedom.

The student leader decided to take this extreme measure to push for a favorable ruling from the Third Division of the Criminal Trial Court, presided over by Dr. Gladys Terán Sierra, during the trial scheduled for 22 October.

Rivera was with his university classmates and his party, the People’s Democratic Movement (MPD), when he began the strike, and declared that he wants his decision to become an example for the organized groups in the country, to continue struggling even harder against the arrogance and neoliberal policies pursued by the regime.

"I'm a political prisoner of Rafael Correa’s government; and my case is an example of the governmental authoritarianism that Ecuador is being put through, in particular peoples’ organizations and their leaders. My struggle is not isolated; it is part of the struggle of workers, indigenous people, students, small merchants, teachers and other sectors that are defending the democratic principles of the Constitution, and resisting the right-wing turn of the regime," Rivera said.

It should be remembered that in the 9 September hearing, after three hours, the First Division of the Provincial Court of Pichincha ruled that it was denying three motions from Marcelo Rivera’s defense, including substitution of the precautionary measure of pretrial detention to enable the defendant to defend himself in freedom. The trial began, which, unlike any other, has been quite speedy.

Rivera is charged with the offence of "terrorist assault against a public servant," categorized in Article 164 of the Criminal Code, in the midst of proceedings full of contradictions, where the rector of the Central University, Edgar Samaniego, has been the main plaintiff.

"While Correa seeks amnesty for corrupt people like Alberto Dahik, he jails people who have always fought corruption," concluded Rivera.

LEGAL PROCEEDINGS IN THE RIVERA CASE

Illegal Detention

On 8 December 2009, a prosecutor, Silvia Sanchez, recognized that three youths were arrested in the vicinity of the Central University, allegedly for retaining authorities from the University Council and assaulting the Rector of the Central University of Ecuador.

That day, Rivera had participated in a student protest against several decisions made by the University Council, including separating schools that had up until then been annexes to the Faculty of Philosophy; these were pre-professional laboratory schools for future graduates of the Faculty and could not be put under the direct management of the rector.

During well-planned provocation by outsiders brought into the university by the rector that day, a riot erupted causing a group of students to take over the University Council’s facilities, without attacking or injuring any of its members. However, Rector Samaniego, in a dramatically reckless, irresponsible action, jumped out of one of the windows of the building and tried to run through a group of demonstrators, when he was hit with a stick, injuring his head. While this was happening, Rivera was inside the building, helping the Council members to leave without problems. He was never present at the site of the attack against the rector, as evidenced by videos taken that day.

After a raid of the Central University campus by over 200 police officers, in an impressive operation, Marcelo Rivera and two companions were illegally and unjustly detained at approximately 11 in the morning. The detainees were taken to the Transit Bureau on Avenida Ramírez Dávalos, close to Santa Clara Market in Quito, when they should have been immediately taken to the competent authority.

ORAL REMAND HEARING

At 5 pm, they were transferred to the Judicial Police station.  At 10 pm, the oral remand hearing began, which concluded at 3 am on 9 December.  During the hearing, the prosecutor stated that Marcelo "assaulted the Rector" and that this set off "civil commotion," which is why substitution of precautionary measures was denied. Pretrial detention was ordered and the pretrial investigation phase was opened with charges of organized terrorism, under the statutory provisions of Article 160 of the Ecuadorian Criminal Code.

It should be noted that the defense lawyers of the three detainees submitted full documentation proving deep social, familial and work ties, which, according to the rules of criminal procedure are sufficient to order any precautionary measure other than pretrial detention.

Without giving any value to the documents submitted, the prosecutor on duty stated personal opinions and considerations against Marcelo and the actions of the Revolutionary Front of the Left at the Central University.

It is known, unofficially, that several high-level government politicians were present at the Judicial Police station and spoke with the prosecutor on duty.

PRETRIAL INVESTIGATION

To begin the pretrial investigation, all judicial records were turned over to Judge Naomi Santillán Bravo of the Tenth Division of the Criminal Trial Court and to Dr. Basante Pozo Hernán of the General Crime Unit of the Provincial Prosecutor’s Office of Ecuador, who are to be in charge of moving this criminal proceeding forward.

The pretrial investigation ended on 8 January, during which Marcelo Rivera presented exculpatory evidence, several witnesses appeared to provide their versions of the events of 8 December, and the moral character of the FEUE president was recognized. More than ten people certified with their signature Rivera’s honesty as a decent person, who has respected the law all his life, acknowledging that he is not a violent person and stating that, on the contrary, he is a student and youth leader who defends the rights of an important sector of society— secondary and university students.

During the proceedings, it was demonstrated that the FEUE is a legal organization with legal standing, recognized by the National Council on Higher Education (CONESUP), refuting the charge that it is an illegal organization with unknown, illegal objectives.

With the end of the investigation, the prosecutor, Hernán del Pozo, on 15 January, requested that the Judge of the Tenth Court set the day and time of the hearing to present the prosecutor’s report.

ARRAIGNMENT HEARING

On 29 January, the arraignment hearing was held, which was not attended by the prosecutor Dr. Hernán del Pozo, who had previously carried the case, but instead by the prosecutor Dr. Patrick Navarrete, who had less than five days to study the 14 files in existence at the time in Marcelo’s case.

Defense counsel pointed out that there were several elements making the proceedings irregular, on the basis of which they requested it be annulled.  Nevertheless, the judge certified the proceeding and continued the hearing.

Prosecutor Navarrete presented the charges against Marcelo Rivera, rejecting Article 160 on organized terrorism with which he was initially accused and replacing it with Article 164 of the Criminal Code: "Terrorist assault against a public servant," leaving Rivera without a defense, since during the pretrial investigation evidence were presented to answer the charges brought at the outset of the investigation (organized terrorism).

With regard to the other two detainees, Navarrete noted that "evidence is not found to substantiate the charges, and therefore declines to charge them."

The defense lawyers spoke in defense of the innocence of the accused using constitutional and legal arguments about the case; nevertheless, the judge, Naomi Santillán, endorsed prosecutor Navarrete’s opinion and issued the indictment against Marcelo, as the alleged perpetrator of the crime of terrorist assault, and stating that in the following days she would decide, in due time, on the motion for the revocation of pretrial detention.

With regard to the other youths, she stated that she would submit the case to consultation with the head prosecutor, as set forth in the Code of Criminal Procedure, given that there had been no charges forthcoming from the prosecutors, and she ordered the issuance of the judicial notice for their immediate release from jail.

FOLLOWING THE HEARING

On 15 March, 45 days later, judge Naomi Santillán ruled on the motion for substitution of precautionary measures, denying it because she did not find new evidence clearing Marcelo of participation in the alleged assault.

On 18 March, Dr. Ramiro Román presented a petition to Dr.  Naomi Santillán in the Tenth Division of the Criminal Court requesting that she expand upon her order in which said that the evidence was not justified or dispelled, denying substitution of the pretrial detention.

Dr. Santillán expanded her order confirming her previous statement, saying that the necessary elements for ordering an alternative measure are missing and ratified the indictment.

Dr. Román appealed the judge’s ruling to the Provincial Court.

The lottery for Marcelo’s case was held on 26 April and the First Criminal Division was chosen as the court to hear his case.

It was reported that the lottery determined that the First Division of the Criminal, Conspiracy and Transit Court would hear Marcelo’s case.

On May 17, it was reported that that the oral, public, adversarial appeal hearing would be held on 1 June 2010 in the Provincial Court.

The First Division of the Provincial Court, after hearing the case, found several procedural errors committed by Tenth Division Judge Naomi Santillán, and remanded the entire proceeding to the court to correct the errors.

The First Division of the Provincial Court asked the National Judiciary Council to open an administrative investigation of the Tenth Division Judge, Santillán, and for this reason she was removed from the case.

A new lottery was held and the case was assigned to the Seventh Court, presided over by Dr. Marco Terán Armas. Marcelo Rivera’s defense requested the substitution of the precautionary measure of pretrial detention by other precautionary measures; however, the motion was denied.

The Seventh Division Judge, Pichincha, decided to issue the indictment of Marcelo for the crime of terrorist assault against a public official, set forth in Article 164 of the Criminal Code.

The defense lawyer appealed the indictment. He sought annulment of the proceeding for judicial errors that had been committed and also asked for substitution of pretrial detention by other alternative measures.

The hearing on 9 September lasted three hours, and after hearing all parties, the First Division of the Provincial Court, presided over by Pichincha, resolved to deny the three defense motions, thus opening Marcelo Rivera’s trial.

A trial court lottery was held, and the Third Division of the Criminal Trial Court, presided over by Dr. Gladys Terán Armas will hear the case and conduct the trial, scheduled for Friday, 22 October.