Background

For those readers from the U.S.A., it seems almost beyond question that once a person is found not-guilty in a court of law, he is innocent forevermore as far as the law is concerned. Even if the prosecutor is convinced with every ounce of his being that you stole that Hershey's bar or punched that nazi, he must pound sand once a jury hands down a not-guilty verdict. Not so in Ecuador. Although there is a similar constitutional protection against double jeopardy,[1] it is interpreted much differently. The prosecutor here can appeal an acquittal. And because there are no juries, this appeal effectively functions as a second trial - with witness testimony and everything - all of which is explicitly permitted within the Ecuadorian legal framework.

A Real Case

Take for example the very real case of Luis Alfredo E. Q.[2] Luis was arrested in February of 2021 and went to trial in late 2022 for allegedly possessing and storing child pornography. The prosecutor and their witnesses claimed Luis uploaded the illegal images to Google Drive purposefully, ostensibly so that he could view them later.

Luis and his witnesses told a different story. They claimed he did not set up the Google account - that it was created by his daughter because a Google account was necessary to use his new cellphone. Further, that while Luis did join a WhatsApp group in order to view adult pornography, he only opened images of adults, believed they would disappear after he deleted them, and never saw any pornographic media involving children or teenagers.

Finally, the defense argued that Luis - a 52-year-old with only an elementary school education who worked in a KFC chicken processing plant - did not understand that images from his phone could even be uploaded to Google Drive, let alone how to do so.

A written judgment of acquittal was published on December 23rd, 2022, based largely on a finding that the judge could not find beyond a reasonable doubt that Luis knew the images were child pornography and knew he was storing them.[3] If this happened in the U.S.A., that would have been the end of it.

But Ecuador is not the U.S.A. On February 8th, 2023, the court accepted an appeal by the prosecution. According to a press release from the prosecutor's office, Luis' acquittal was overturned on appeal on March 10th, 2026, and he is now facing 10 years in prison and financial fines.[4]

Why This Matters to You

I imagine some who read that are thinking: "well, he was a 'bad man' and deserved to be punished." Remember, however: Luis was found not-guilty years ago for this exact crime.

More to the point, this "double-prosecution" policy doesn't only apply to cases like his. If you're arrested for tax evasion, found not-guilty after your trial, and the prosecutor decides to appeal because you're a gringo and "none of 'em pay taxes", you could still wind up in jail. And let's be honest: as a gringo, you're probably much more likely to have not filed your Ecuadorian taxes than Luis is of having committed his crime. Especially since Luis has already been declared not-guilty in a court of law. Have you?

Takeaway

Double jeopardy under the Ecuadorian constitution only prevents multiple processes, not multiple trials.[5] An appeal within the same process does not implicate the double jeopardy clause. This means that, while not currently part of the law, there would be nothing unconstitutional about a prosecutor continually appealing until he was able to garner a conviction. Once. Twice. Ten times. One hundred times. Every day for the rest of your life? It would not constitute double jeopardy in Ecuador.

Notes & Sources

1 Ecuador Constitution art. 76 num. 7 lit. i: Nadie podrá ser juzgado más de una vez por la misma causa y materia. Los casos resueltos por la jurisdicción indígena deberán ser considerados para este efecto.
2 Case no. 17283-2021-00158. News outlets have omitted the defendant's full name from their coverage, and I am doing so here as well, even though the name is publicly available in court records accessible via the SATJE system.
3 23/12/2022 16:15 - SENTENCIA RATIFICATORIA DE INOCENCIA (RESOLUCION). Like in almost all criminal convictions in both Ecuador and the USA, the law requires not only the act (actus reus) but also the guilty state of mind (mens rea). In this case, Luis would need to have known: (1) that the images were pornographic; (2) that the images involved minors; and (3) that he was storing them. Note that knowledge can sometimes be imputed. For example, if someone aimed a camera into the locker room of an elementary school, she may not technically "know" she was photographing nude children, but her recklessness could still support a conviction.
4 Press release from the Fiscalía (prosecutor's office). fiscalia.gob.ec → Note: at time of writing this decision had not yet been independently verified through the SATJE system, as it had not yet been published there.
5 See the opinion by the Corte Constitucional in Sentencia Nro. 1288-15-EP/22.