A court in Ecuador has sentenced Swedish software developer and digital rights activist, Ola Bini, to one year in prison for “Attempted Non-Consensual Access to a Computer System”.
The ruling by two out of three judges of the Provincial Court of Pichincha overturned the unanimous verdict issued by the Court of First Instance (trial court) in Quito in January 2023, which had declared Bini innocent. The acquittal had come nearly four years after Bini was arrested in April 2019, the same day as his friend, WikiLeaks founder and journalist Julian Assange was seized from the Ecuadorian embassy in London.
Assange, who has been imprisoned for five years now, is himself just weeks away from a ruling by the Royal Courts of Justice in London which will determine whether or not he can have a final chance to challenge his extradition to the US through the UK’s legal system.
Also watch: Will Julian Assange be extradited to the United States?
Much like Assange, Bini’s persecution was marred by severe procedural lapses and violations, including his imprisonment for 70 days without the formalization of charges. While Bini was released in June 2019 after his writ of habeas corpus was accepted, several restrictions were placed upon him, including being barred from leaving Ecuador.
The charges against him were amended repeatedly, until the prosecution finally settled on “illegal, non-consensual access to a computer or communications system”, for the purpose of destabilizing the government. The charge carried a sentence of between three to five years in prison.
Bini’s defense team has recorded more than 100 violations over the five years of his persecution by the Ecuadorian state.
Hours before Bini’s arrest on April 11 2019, ministers from the right-wing administration of Lenín Moreno in Ecuador held a press conference announcing that a member of WikiLeaks and Russian hackers were supposedly trying to set up a “hacking center” in Ecuador. . Bini was subsequently handcuffed and detained from the Mariscal Sucre airport.
According to digital advocacy group, the Electronic Frontier Foundation (EFF) that has been monitoring Bini’s case, the core piece of evidence that was relied upon by the Prosecutor’s Office, and Ecuador’s national telecommunications company (CNT) which became part of the case through private prosecution, was a printed image of a telnet session.
The image was alleged to have been taken from Bini’s phone. EFF highlights that instead of evidence that Bini had gained unauthorized access to the telecommunication system, it shows the “trail of someone who paid a visit to a publicly accessible server— and then politely obeyed the server’s warnings about usage and access”.
The prosecution claimed that Bini had used a router to try to gain access to a CNT system which held data from Ecuador’s Presidency.
More on the case: Ola Bini’s trial resumes. What has happened so far?
Expert witnesses from both sides had acknowledged that the image presented as evidence by the prosecution did not prove unauthorized access.
In its ruling in January last year, the Court of Criminal Guarantees in Pichincha declared that Bini was innocent, noting that the prosecution had failed to present evidence that a crime had occurred, or that unauthorized access had actually taken place.
Moreover, it stated that the alleged purpose of the criminal charge presented by the prosecution, that of non-consensual access to a computer or telecommunications system to “illegitimately exploit the access achieved”, could not be proven.
The Court had also held that graphical representations did not constitute evidence of a cyber crime, not only because of potential manipulation, but also because images could not capture whether the actions represented had actually been executed.
The Prosecutor’s Office appealed the verdict, approaching the court in Pichincha’s capital Quito at the end of March. Notably, the CNT did not take part in this appeal, despite participating in the proceedings against Bini as the victim.
EFF has stated that no expert analysis has been conducted for the systems that were allegedly affected, and that the expert testimony used in the trial was based on a CNT report, instead of a verification of the CNT router.
Importantly, two out of the three judges who were going to decide on the appeal had previously ruled to keep Bini in detention. His team’s efforts to have the judges removed from the case were denied.
What caused alarm after Friday’s ruling was the fact that the Court had reasoned that Bini’s “specialized technical knowledge” would be suitable for him to commit the crime, since he had tried to access the CNT’s computer system— “therefore criminalizing Bini’s expertise and profession”, stated advocacy group, the Rights and Justice Observatory (ODJE).
This, to reiterate, was despite the fact that actual access had not been achieved. Ultimately, Judges Fabián Fabara (who himself under investigation by the Prosecutor’s Office) and Narcisa Pacheco annulled Bini’s acquittal, and accepted the prosecution’s appeal, sentencing Bini to prison and imposing a fine for “Attempted Non-Consensual Access to a Computer System”.
In a minority decision on Friday, Judge Maritza Romero, noted that the evidence presented to the court could not accurately determine the charge, adding that the Court had violated the presumption of innocence by issuing a ruling based on a digital photograph.
Carlos Soria, a member of Bini’s legal team, stated that the Court had taken its decision “despite more than 200 pieces of evidence presented, with the unanimous ratification of innocence” by the trial court, and without an appeal by the alleged victim. He added that the testimonies of experts who stated that no access had taken place were not taken into account.
He highlighted that the two judges had argued that while there had been no access there had been an attempt— something which the prosecution itself had not argued.
Following Friday’s verdict, Bini’s lawyer, Jose Charry Dávalos stated that the outcome was “expected, considering the courtroom we were in. The same judges who kept him in prison in a decision that was declared illegitimate. The resolution is absurd from many aspects. I know it will show them up”.
He said later, that the case was evidence of a “systemic problem”, “Decision makers in the judicial system take for granted that their decisions have no consequences. So, with that assurance, they decide what they want. If that reality continues,” adding that if this were to continue, there would be “many more Ola Binis”.
The ruling has been rejected by organizations including the EFF and the Regional Human Rights Advisory Foundation (Inredh), which called it a “dangerous precedent of the criminalization of digital rights defenders”. It added that political interference and the lack of knowledge of information technology and digital rights had prevented objective legal reasoning that guarantees due process.
“It is necessary that the States materialize the commitment to the adequacy of mechanisms to guarantee due process. Protection mechanisms for human rights defenders, even if this takes place in cyberspace. All this, by recognizing the importance of data protection and the democratization of free software in the exercise of fundamental rights.”
The Confederation of Indigenous Nationalities of Ecuador (CONAIE) condemned the ruling against Ola Bini in a statement. The movement wrote, “The revocation of the innocence of the digital activist Ola Bini is a dangerous precedent for the criminalization of defenders of digital rights…We demand that due process and justice be met for #OlaBini, respect for freedom of expression and the protection of digital rights.”
Bini’s defense team has requested the Court for a conditional suspension of the sentence. A hearing has been scheduled for April 8. The team has also stated that they will approach the National Court of Justice to appeal the ruling.
