ECUADOR Law and Practice Contributed by: Jorge Sicouret Lynch, María Celeste Alvarado, Julia Rovello and Mateo Viteri, Coronel & Pérez
privilege, although not through the usual common-law categories. These protections include professional secrecy in a broad sense and, most importantly, lawyer-client confidentiality. The Comprehensive Organic Criminal Code ( Código Orgánico Integral Penal – COIP) crimi- nalises the disclosure of secrets learned by reason of a person’s status, office, employment, profession or trade, and excludes the duty to report where knowl- edge of the facts is covered by professional secrecy. The Constitution also expressly protects professional secrecy and source confidentiality in the communica- tions sector. There is also a specific rule in mediation that is con- sistent with its confidential nature: a person who has acted as mediator may not later intervene in the same dispute as arbitrator, counsel, adviser, representative or witness, nor may that person be compelled to tes- tify about the dispute in court. Accordingly, documents or communications may be withheld where their disclosure or use in court would violate a legal duty of secrecy or confidentiality. That said, the system does not develop doctrines equiva- lent to privilege logs, work product or without preju- dice privilege in the common-law sense. On the other hand, Ecuadorian law does not set out a general and detailed doctrine of waiver. The clear- est statutory example arises in mediation, where the parties may, by mutual agreement, waive confiden- tiality; outside that context, professional secrecy is strongly protected, but the circumstances in which it is deemed waived are not systematically regulated. 8.3 Confidentiality The legal framework recognises limits on disclosure on grounds of confidentiality, but not as an absolute right to withhold evidence from proceedings. Rather, confidentiality operates mainly as a limit on publicity, access to information and dissemination of certain categories of material, particularly where personal data, privacy, reserved information or legitimate com- mercial interests are involved.
The clearest categories of protected information are found in special legislation. The Organic Law on Social Transparency recognises confidential and reserved information; data protection legislation imposes con- fidentiality duties in relation to personal data and lim- its access to it, and the securities regime recognises both reserved information and privileged information subject to strict secrecy obligations. There are, however, recognised exceptions to duties of confidentiality. The clearest are data subject con- sent and disclosure authorised by law. In addition, the Constitution allows access-to-information claims even where the refusal is based on the allegedly secret, reserved or confidential nature of the information, and it prohibits public bodies from withholding informa- tion in cases involving human rights’ violations. The Organic Law on Social Transparency also requires partial disclosure where only part of a document is protected, through redaction or dissociation. Finally, habeas data guarantees the data subject’s right to access, rectify, delete or annul personal data, and in telecommunications any recording or interception requires prior judicial authorisation. 8.4 Witness Evidence Witness evidence is mainly taken orally at the trial hearing or, in simplified proceedings, at the second phase of the single hearing. Parties must identify their witnesses in advance and specify the facts on which they will testify; witnesses are served in advance and, if they fail to appear without justification, they may be compelled to attend with police assistance. They may also testify by video conference or similar means of communication. There is no system of witness depositions in the com- mon-law sense. The closest equivalent is the use of preparatory proceedings to preserve urgent evidence, including advance witness testimony where there is a risk that the evidence may be lost, for example because of old age, serious illness or imminent depar- ture from the country. As to examination, the system is oral and adversarial: witnesses are subject to cross-examination.
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