Preventive detention in Ecuador: exceptionality, quantitative incidence, and tensions with the presumption of innocence

Abstract

In Ecuador, there is ongoing controversy surrounding pre-trial detention, due to its significant impact on the violation of fundamental rights, such as the presumption of innocence, due process and personal liberty; for whilst the Constitution frames pre-trial detention as a precautionary, exceptional, subsidiary and proportionate measure, its routine application undermines the guarantee of its exceptional nature and the very use of pre-trial detention as a form of advance punishment. The aim of this study was to analyse the constitutional, legal and treaty-based framework of pre-trial detention and to determine whether its application meets the standards for the protection of rights set out in the Ecuadorian legal system and the inter-American system. The research is based on the premise that this measure should only be applied when there is a specific justification of procedural risk, whether due to flight risk or obstruction, and it must be demonstrated that other less onerous precautionary measures are insufficient. A mixed-methods approach, with a qualitative focus, was employed, involving the analysis of constitutional and criminal legislation, national and inter-American case law, treaty standards, and institutional data for the period 2022–2024. The results showed that a significant proportion of persons deprived of liberty in Ecuador remained without a final conviction, reaching in certain years a ratio of approximately four in ten persons. These findings reflect a tension with the principle of the exceptional nature of pre-trial detention and highlight the need to strengthen judicial reasoning, effectively assess alternative pre-trial measures, and reinforce constitutional oversight of pre-trial detention.