CHAPTER IV- CONTINUATION

ECUADOR

 

Introduction

 

118.      The Inter-American Commission on Human Rights (hereinafter “the Commission”), acting within its sphere of competence, established by the American Convention on Human rights (hereinafter “the Convention” or “the American Convention”), and other applicable instruments, has observed the evolution of the human rights situation in Ecuador with interest and concern. In 1997, the Commission issued its first report on the human rights situation of Ecuador, covering the period between the taking of the oath of office by President Durán Ballén, in mid-1992, until September 1996.  In its 1998 Annual Report, the Commission included a follow-up report regarding the Ecuadorian human rights situation, with the purpose of assessing compliance with recommendations issued earlier. In its 1999 Annual Report, the Commission analyzed the human rights situation in Ecuador in its Chapter IV. As it concluded its 122nd and 123rd regular sessions, the Commission referred to the persistent and increasing institutional deterioration experienced in Ecuador, which hinders the full guarantee of fundamental freedoms for the country’s inhabitants.

 

119.      The analysis of the Ecuadorian situation in the current section of the Annual Report is conducted according to the criteria established beforehand by the Commission for the inclusion of countries in the present chapter. On the one hand, there is the criterion according to which States included in the report shall be those in which “the free exercise of rights contained in the American Convention or Declaration have been effectively suspended, in whole or part, by virtue of the imposition of exceptional measures, such as a state of emergency, suspension of guarantees, state of siege, prompt exceptional security measures, and the like. On the other hand, there is the criterion that includes “…structural or temporary situations that may appear in member states confronted, for various reasons, with situations that seriously affect the enjoyment of fundamental rights enshrined in the American Convention or the American Declaration.  This criterion includes, for example: (…) serious institutional crises.”  Finally, the Commission considered also the criterion that refers to “to the States that are found to be in a process of transition of any of the … above mentioned situations.” 

 

120.      This report shall focus on the situation lived by Ecuador at the end of 2004 and during 2005. Under the light of the American Convention the events that have occurred over the past year in Ecuador configure a grave institutional crisis, justifying the Commission’s concern. Indeed, during the period under study, the factual circumstances referred to the Criterion developed by the Commission for the preparation of country reports, and cited in the above paragraph, existed in this country.

 

121.      It its necessary to emphasize that, the assumption of a new Government on April 20, 2005, as well as the initiatives adopted since its arrival to power, constitute a positive sign for the reestablishment of some of the institutions; whose destabilization is questioned in this report and that turn out to be fundamental for the protection of the human rights, such as the well functioning of a judicial power, independent, and impartial.  In this framework, the process of appointment of Supreme Court judges, assuring a transparent selection with international verification constitutes an important step, above all because it has been the result of an internal democratic dialogue.  Continuing this line, the Commission received with consent the information coming from the Government stating that the Constitutional Court will be soon appointed.  At the same time, the Commission has taken note of the expressions of the Government of the Dr. Alfredo Palacio that indicate its determination to increase its efforts around executing a more consistent and articulated social policy, for the benefit of the majorities.  For this purpose, the State has indicated the development of activities such as the investment of resources in health, education, science, and technology, and the financing of productive projects; as well as the insertion of those sectors of the population recognized as vulnerable to the political and social sphere.  The Commission congratulates the Government for these decisions since the difficult socio-economic situation implies a serious obstacle to the effective enjoyment of the cultural, social, and economic rights in Ecuador.  On the other hand, the Commission stands out the eagerness and interest of the new Government to promote the participation of the population and to consolidate democracy, aspects especially worth when in the month of October of the year 2006, the country will live an electoral process directed to elect a President and vice President of the Republic and members of the National Congress.

 

122.      The year 2005 has seen weak rule of law and therefore also fragile protection of human rights in Ecuador. The security of the democratic system has been affected by political instability which, although not a recent phenomenon in the country’s history, has nevertheless displayed the deficiencies of a governmental structure incapable of providing satisfactory public policy responses to the interests of the majority of the population; or which, at times, has not been able to develop effective programs due to short terms of office.  This erosion is also reflected in the lack of capability on the part of the political system to provide response to social problems, which contributes to perpetuate human rights structural weaknesses.

 

123.      Another factor that has played a key role in the deepening of this crisis has been the lack of enduring political representation for marginalized sectors such as the indigenous part of society. In this context, it is worth noting the growing political mobilization generated by this part of the population and the important role of its leaders in their social movements.  In this regard, it should be said that the first stage of Lucio Gutiérrez’s Administration, despite its initial disposition, was not able to provide substantive responses to meet the interests and aspirations of the indigenous people. This became evident later, when President Gutiérrez left power in April 2005, in an exit at least partly provoked by strong citizen pressure, since he had lost the vigorous popular support which had elected him in November 2002.[138] Thus, the mere formal inclusion of the indigenous peoples does not suffice for the institutional strengthening of the country and, as has been seen, this popular discontent generates a situation of social unrest which can lead to the removal of an administration.

 

124.      The Inter-American Court of Human Rights has recently indicated that:

 

[T]he State has to adopt all the necessary measures to guarantee that the members of the ethnic and indigenous communities … can participate, in conditions of equality, in the decision taking process on matters and policies that impact or can impact in their rights and in the development of such communities, in such form that can be integrated to the institutions and state organs in order to participate in a direct way and proportionally to their population in the direction of public matters, as well as to do it from their own institutions and according to their values, uses, customs and forms of organization, provided that they being compatible with the human rights consecrated in the Convention.[139]

         125.      From this standpoint, the Commission’s experience proves that institutional crises have consequences for the exercise and enjoyment of rights. At the very least they cause anxiety and fragility which stand in the way of the harmonious functioning of institutions, including those directly entrusted with guaranteeing citizens the exercise of their rights.  Particularly, as it is the case of the Ecuador, when such suspension affects institutions that are, according to internal regulations of the country, the entrances of the population to specific resources that permit the protection and the individual recognition of their rights. 

 

126.      In this respect, it is worth recalling the position held by the Commission regarding Ecuador in its 1999 Annual Report. 

35.       The replacement of a President elected by popular vote before the end of his mandate is always a serious development and one that must be frowned upon from the standpoint of the safeguarding of democracy.  The Commission is aware that there are occasions on which Presidents themselves precipitate institutional crises (for example, when, without authority they shut down Congress or undermine the independence of the Judiciary).  In such instances, the restoration of the rule of law may require the replacement of the President.  To the extent that this is done in accordance with the mechanisms set forth in the Constitution in question (political trial, presidential succession in the case of resignation), such solutions are compatible with the American Convention on Human Rights.

 

127.       As will be explained in the following sections of this report, the Commission considers that the actions of the Administration led by former President Lucio Gutiérrez and the temporary parliamentary majority he enjoyed towards the end of 2004 gave rise to the institutional crisis which led to their exit in April 2005; of particular relevance were the actions related to the removal of the members of the Supreme Court of Justice and the Constitutional Court. The full operation of the legitimately constituted branches of government, without any impairment of their independence, and in balance with the other branches, is an indispensable requirement for a democratic system, as adopted by the OAS Charter (Article 3) and which has been expressly recognized by the Inter-American Democratic Charter.

 

128.       However, the Commission reiterates that the temporary crisis lived by Ecuador during the last year reflects the existence of far deeper structural problems that cannot be resolved due to the serious political instability affecting the country and the lack of capacity on the part of its ruling classes to forge wide and durable consensual agreements which would allow the identification and execution of inclusive public policies, which are necessary for the respect and effective enjoyment of all  human rights, particularly those related with the egalitarian exercise of the right to the political participation (Article 23 of the Convention), access to the impartial, independent justice and access to an effective resource (Article 25 of the Convention), freedom of speech, association and meeting (Articles 13 and 15 of the Convention), equal protection before the law (Article 24 of the Convention), and of the cultural, social, and economic rights, recognized in the Protocol of San Salvador that Ecuador ratified in 1993. 

 

129.     The Commission cannot fail to point out that the Ecuadorian population is highly skeptical regarding democratic institutions, the country’s political leadership and state agencies’ capability of protecting human rights. This contributes to the political instability that has characterized the country over the last decade, making it more profound. Some examples prove this. Barely 24% of the population approves of the way in which the President leads the country,[140] and only 22% believes that the persons leading the nation are honest.[141] There is also a lack of civic culture in Ecuador.  Thus, despite the fact that in 2000 there was a process for the writing of a new constitution and that, at this time, there are discussions over the need for constitutional reform, only 24% of the population has knowledge of the Constitution.[142] These surveys also demonstrate the precarious Ecuadorian situation, given that the inhabitants of this country are among those that least make demands for their rights, for compliance with the law and for the legitimacy of political parties and of Congress.[143]

 

130.      Political crises are also generated and deepened by the high degree of skepticism on the part of Ecuadorian society regarding the operation of state institutions.  Thus, the Ecuadorian population is the one in Latin America that least believes that the State manages to enforce the law fairly. [144] Only 30% believe that the Ecuadorian judicial system, although not prompt, is capable of providing justice, again the lowest index of trust in Latin America.[145] Sixty-seven percent of the population believes that there can be democracy without political parties and their national Congress.[146] Only 14% is satisfied with the operation of democracy in the country.[147]

 

131.      This lack of trust in public institutions is worsened by a strong perception of corruption. Ecuadorians believe that 82 out of every 100 public servants are corrupt[148] (the highest in Latin America) and only 21% of them believe that progress has been made in the fight against corruption. [149] Ecuador is ranked 117th of 158 countries in the perception of corruption index.[150] Corruption is an important consideration in the analysis of democratic institutions; as the Member States of the OAS have acknowledged, “corruption undermines the legitimacy of public institutions and strikes at society, moral order and justice, as well as at the comprehensive development of peoples,” and fighting corruption “strengthens democratic institutions and prevents distortions in the economy, improprieties in public administration and damage to a society's moral fiber.” [151]

 

132.      The Commission has understood that the phenomenon of corruption is not only related to the legitimacy of public institutions, society, the integral development of peoples, and all other more general aspects mentioned supra, but also has a specific impact on the effective enjoyment of human rights in society in general: 

[T]he corruption of the judge in a particular trial undermines his or her independence when deciding the case, and may consequently constitute a violation by the state of …the guarantee that all persons will be judged by an independent and impartial judge, enshrined in Article 8(1) of the American Convention…In the area of economic, social, and cultural rights, corruption has a major impact, as it is one of the factors that can stand in the way of the state adopting “the necessary measures ..  to the extent allowed by their available resources, ... for the purpose of achieving progressively ... the full observance of” such rights…The relationship between corruption and human rights has also been addressed from the perspective of discrimination…there is discrimination when a public official accepts money or other gifts or favors from a person, given that said person then acquires a privileged status in relation to other persons who, in otherwise equal circumstances, have not offered any gift or favor and therefore receive discriminatory treatment…In addition, points of convergence between corruption and other human rights have been described, such as the right to freedom of expression and political rights.[152]

       133.       In accordance with the aforementioned considerations, existing corruption in Ecuador seriously affects democratic institutions and is an important factor to consider when analyzing the human rights situation of the country.

 

134.      Another factor is the socio-economic context of the country. Since approximately seven years have transpired since the Commission, in its Follow-Up Report, performed an analysis of this subject, it is necessary to observe the current country’s situation.

 

135.       According to the data contained by the human development index of the United Nations Program for Development (UNDP), Ecuador has fallen from the 73rd to the 78th place in 2005. This descent is noteworthy when compared with the 64th place held in 1996.[153] Regarding life expectancy at birth, there has been an increase from 69.5 in 1998 to 74.3 in 2005.[154]  With respect to per capita income, there has been a considerable decrease from 4,602 in 1997 to 3,641 this year. Ecuador’s poverty index is 10.6% and is ranked as 22nd of 103 developing countries, for which this index has been made. Regarding foreign debt, the Central Bank stated at the end of October that, for this year, it should be estimated at 10.395 billion dollars.[155]

 

136.        These figures and percentages are the image of a country that has tried over the last few years to overcome its socio-economic deficiencies. However, the profound crisis, reflected, inter alia, by the phenomenon of massive emigration, as well as by several social protests, has made it clear that Ecuador has not yet overcome the high degrees of marginalization of certain sectors of the population. Among these are sectors of indigenous people, Afro-Ecuadorians, and women, which constitute groups that do not effectively count on sufficient representation in decision-making circles. The impact of this problématique concerns the Commission, especially if it is borne in mind that the lack of adequate participation may result in a weakening of the systems of protection of the rights, needs, and interests of these human groups.  In this sense, the Commission would like to recognize again the information presented by the Government of the President Alfredo Palacio about their political will to work to surpass these problems that were not generated by the current administration but are structural situations that afflict Ecuador.

 

          A.         Background

 

137.       The origins of the institutional problem currently afflicting Ecuador lie, in part, in events that began at the end of 2004 and whose effects were felt throughout this year. In order to understand the current context of the crisis situation lived by the country, especially with respect to the weakening of the rule of law, in what follows the Commission will offer a brief chronological description of relevant events.  The CIDH reiterates again that analyzes this situation as long as, it has relation with human rights, particularly the exercise of the political rights, freedom of demonstration of political opinions, right of meeting and association and especially the right to have a legitimate  Supreme Court that is efficient, stable, impartial, and independent.

 

138.      At the beginning of November 2004, legislative deputies representing the Partido Social Cristiano [Social Christian Party], Izquierda Democrática [Democratic Left] and Pachacutik, were engaged preparing an impeachment trial, before the National Congress, of President Lucio Gutiérrez, who was accused of embezzlement of public funds.[156] However, able to reconstitute a new majority in Congress, Gutiérrez blocked the impeachment and started an irregular process of restructuring the judiciary, i.e., the Constitutional Court, Supreme Electoral Tribunal, and Supreme Court of Justice.[157]

 

139.       On November 25, 2004, the National Congress dismissed the judges of the Constitutional Court and the Supreme Electoral Tribunal,[158] deeming that the judges and main alternates of both courts had been illegally appointed. In that same session, the National Congress appointed judges for both the Constitutional Court and Supreme Electoral Tribunal.

 

140.      The removed Constitutional Court judges were subjected to an impeachment trial on December 1, 2004. In the trial, the National Congress acquitted the judges. In other words, first there was a dismissal, then an impeachment, and, finally, an acquittal.

 

141.      Subsequently, the President of the Republic called a special session of the National Congress to discuss, inter alia, the constitutional situation of the Supreme Court of Justice.[159] In this session, held on December 8, the Ecuadorian Congress decided, by Resolution 25-181,[160] to dismiss the sitting judges of the Supreme Court of Justice as well as their alternates. According to the Congressional resolution, the justices had had to resign in January 2003, pursuant to the 25th temporary provision of the Constitution; therefore the Congress appointed other jurists in their place,[161] expressly stating that their appointments would not be subject to term limits, and that they could only be dismissed for the causes determined by the Constitution of the Republic and the law. In addition, on this occasion the Congress charged the new justices with the task of restructuring the Consejo Nacional de la Judicatura [National Council for the Judiciary]. On the next day, the judges who had been removed vacated their offices in the Supreme Court in the midst of great social unrest, as the police surrounded the building while 200 persons protested the dismissals.[162]

 

142.      Thus, during the last two months of 2004, the judicial system of Ecuador, headed by the Constitutional Court, the Supreme Electoral Tribunal, and the Supreme Court of Justice, was almost completely removed, without following formal constitutional requirements. Critics have mainly focused their observations on the issue of the legitimacy of the legislative branch to make reforms of this scope and have accused the Administration of disrespecting the State’s Constitution.

 

143.      Initially, the National Congress invoked its interpretative faculties, authorized by Article 284 of the Constitution, which provides:

 

In case of doubt regarding the scope of the norms of this Constitution, the National Congress may provide an interpretation which shall be generally binding. The initiative to present bills on constitutional interpretation shall belong to the same persons or agencies that enjoy it for the proposal of bills of reform; procedures shall be the same as for the issuing of laws. Their approval shall require a two-thirds favorable vote of the members of the National Congress.

Subsequently, and with a quorum of one hundred congressmen meeting in a special session, they went on to analyze temporary provision 25 of the State’s Constitution:

 

25th. – Officers and members of the organs appointed by the National Congress and the Comptroller-General of the State on or after August 10, 1998, for a term of four years, by virtue of the norms of this Constitution, shall remain in their positions until January 2003.

The dismissal of the justices of the Supreme Court occurred by a vote of 52 of the 100 members of Congress present.[163]

 

144.     There has been ample debate on the proper interpretation of the authority of the Congress to effect changes of this magnitude, especially in regards to the applicability of article 202[164] of the Constitution to the justices of the Supreme Court elected before August 10, 1998.

 

145.      In this respect, the Commission considers it necessary to recall that one of the improvements celebrated with special satisfaction in the 1998 Follow-Up Report was the initiative to depoliticize and to modernize the Supreme Court of Justice.  This was stated in the following terms:

 

36. On 27 May 1997 a vote was held in which the citizenry came out in favor of depoliticizing and modernizing the Supreme Court of Justice. The new Supreme Court Judges were elected by the National Congress from names put forward by a Special Commission comprising representatives of the three branches of government. This Special Commission selected the Supreme Court candidates from shortlists of three names chosen by civil society through the electoral colleges.

37. The May vote also decided that Supreme Court judges would enjoy security of tenure, except if they violated the terms of the Constitution or other laws; this was incorporated into the new Constitution.[165]

For its part, the IACHR notes that, in taking decisions of this scope, it must always watch for compliance with procedural guarantees provided for by the State’s Constitution.

 

146.      Once the new Supreme Court of Justice took office, institutional stability encountered new stumbling blocks, such as the resignation of its president, Dr. Ramón Rodríguez Noboa on January 12 of this year.[166]

 

147.     In addition, on April 1, the Supreme Court quashed several criminal trials against fugitives from Ecuadorian justice. In particular, it dismissed pending cases against former presidents Abdalá Bucaram and Gustavo Noboa, and former Vice-president Alberto Dahik.[167] Former President Abdalá Bucaram Ortiz returned to the country the next day, and most observers understood that this had been the chief objective in the removal of the Supreme Court justices. This event became the principal cause of ensuing violence and radicalization of citizen protest and political opposition, concentrated in the capital, Quito.[168] From that moment onwards, multitudinous marches, and their repression, intensified.

 

148.     Social unrest and popular cries of opposition against the measures taken by the government progressively increased their magnitude. Because of this, on April 15, President Lucio Gutiérrez issued Executive Decree No. 2752, declaring a State of Emergency in the Metropolitan District of Quito, limiting established civil rights and using the Public Security Forces through the Joint Command of the Armed Forces, to control and maintain the established order. The Executive Branch, ignoring constitutional procedure, also dismissed the members of the Supreme Court elected on December 8, without restoring the justices previously dismissed nor replacing them; from that moment on, the country was left without a Supreme Court.

 

149.      Strong social opposition to the emergency measures issued by the Administration forced the president to end the State of Emergency by Executive Decree No. 2754 of April 16 of this year.

 

150.       Demonstrations continued, and the main streets of Quito were cordoned off by the police. Tear and vomiting gas were used against participants. The result of this repression was two dead and more than 360 persons receiving care for asphyxia, blows, trauma and respiratory problems.[169] In this regard, the Commission received reports on excessive use of force against citizens.

 

151.        For its part, on April 17, 2005, with the vote of 89 of its members, the National Congress dissolved the Supreme Court of Justice,[170] annulling the December 8, 2004 resolution, in this way confirming the Decree of Emergency issued by the Executive Branch on April 15. The Congress did not replace the dismissed judges, either.

 

152.       In this context, the IACHR expressed that it was “deeply concerned over the situation in Ecuador, where in the past few days events have occurred such as street protests, the declaration and suspension of a state of emergency, and the dissolution of the Supreme Court of Justice.” [171] The Commission also recalled that the State was duty-bound to maintain public order. The Acting Secretary General of the OAS, Ambassador Luigi Einaudi, in turn, called for the maintenance of democratic stability in Ecuador and emphasized the importance of the principles of separation and balance of powers of the State.[172]

 

153.      On the same April 20, the National Congress removed Dr. Quintana, who then was the president of the Congress, because of his refusal to include in the day’s order of business the discussion of situation being lived by Ecuadorian society at that time.[173]  The presidency of the Congress was then assumed by the Social Christian Deputy Cynthia Viteri. Under her leadership the National Congress declared that Colonel Lucio Gutiérrez Borbúa had incurred in a breach of his duty as President of the Republic, in view of the fact that his actions were against the Constitution and the law, as provided for by subsection 6 of article 167 of the Constitution.[174] This gave way to the procedures for presidential succession, and Mr. Alfredo Palacio, Vice-president at the time, assumed the duties of head of the government.

 

154.      Thus, Lucio Gutiérrez became the third president removed in the last eight years. In view of the new appointment, the Joint Command of the Armed Forces withdrew its support for Lucio Gutiérrez, which allowed the repression against the protesting demonstrators to cease.[175]

 

155.       The events described up to this point, especially those related to interference with the functions of the judiciary, have been the object of deep international concern and criticism on the part of agencies and institutions whose mandate includes monitoring the protection of democratic institutions, and their continuity, as well as the respect for human rights.

 

156.       In this regard, in its April 22, 2005 session, the Permanent Council of the Organization of American States, considering the seriousness of these events, declared its support for the Republic of Ecuador, encouraging 

all political, social and economic Sectors in Ecuador to strengthen governance and ensure full respect for democratic order, the constitutional framework, and the rule of law, through dialogue and constructive participation. Additionally [it called] for the creation of an atmosphere of understanding that will foster peace.[176]

 On this occasion, in view of the invitation made by the Permanent Mission of Ecuador, and, pursuant to article 18 of the Inter-American Democratic Charter, the OAS undertook the commitment to send a special mission to provide assistance for democratic consolidation. The Acting Secretary General, Ambassador Luigi R. Einaudi, was the head of this mission, which visited Ecuador from April 26 to April 30 with the purpose of assessing the institutional crisis unleashed after Gutiérrez’s ouster. In its Report to the Permanent Council,[177] the Mission found three important areas of agreement regarding developments in Ecuador: 

1.         The causes of the institutional difficulties must be traced back to 1997, at least.

 

2.         December 8, 2004, must be identified as one of the key dates in the crisis that led up to the events of April 20, 2005.

 

3.         The difficult relationship between the executive and the legislature that prevailed since 2003 must be underscored.

Regarding concerns for the immediate future, the Mission found the need for: 

1.         Making the judicial branch of government an authentic guarantor of legal security, impartiality, and independence vis-à-vis the political leaders who control the Ecuadorian party system […].

 

2.         The review and regulation of certain constitutional provisions, especially those referring to grounds for dismissing the President of the Republic, and the drafting of electoral rules and laws on political parties that will serve to ensure governability and stability within the system.

 

3.        With regard to the strengthening of democratic institutions, a number of alternatives have been proposed, such as convening a Constitutional Assembly; calling elections ahead of schedule; establishing national dialogue panels, and then organizing public consultations.

 

Secretary General José Miguel Inzulza has stated that the organization is willing to support “initiatives that reinforce the foundations of the democratic system” of Ecuador.[178]  This he reiterated during his visit to Ecuador, at the end of July of this year, expressing his optimism regarding the process of concertación nacional [national dialogue and negotiation of consensus] carried out by the country, and reaffirmed the OAS’s support to the efforts on the part of Ecuadorians to reach agreements on constitutional reform.[179]

 

157.      The rise to the presidency of Alfredo Palacios signaled the beginning, at least in a formal sense, of a new stage for Ecuador.  Among the most relevant events, the National Congress has made different decisions by which it removed some deputies accused of “having sold their vote,” appointed a new president and introduced several legislative bills to deal with the Judiciary Branch’s situation, both in the short term (appointment of temporary judges to the Supreme Court) and regarding a new organic law of the judiciary.

 

158.       In this connection, on April 26, 2005, the National Congress annulled the resolution by which it had appointed the members of the Constitutional Court and the Supreme Electoral Tribunal.[180] The new judges of the Supreme Electoral Tribunal were elected on May 4, 2005.[181]  The appointment of the judges of the Constitutional Court was possible only when the Supreme Court was filled, since it is this latter Court which must send a short list of three candidates for the former. On that same date, the National Congress passed a bill reforming the Ley Orgánica de la Función Judicial [Organic Law of the Judiciary] and chose the mechanism for selection of the new justices to the Supreme Court, by 69 votes in favor from most of the legislative blocs,[182] in order to make the restructuring of the Supreme Court of Justice possible. This law was initially subjected to criticisms by different sectors of civil society; the president supported this questioning of the law and returned a partial veto of this legal reform to Congress. On May 18, the Congress, in turn, confirmed the initial proposal with few changes.[183]

 

159.       For this purpose, a Comité de Calificación, Designación y Posesión  de Magistrados y Conjueces de La Corte Suprema De Justicia [Committee for the  Evaluation, Appointment and Installing of Judges and Alternate Judges of the Supreme Court of Justice ] was created to this end. The Committee wrote rules of procedure for the task.[184] This process was closely followed by the international community and its agencies, inter alia, the Organization of American States which, prompted by an invitation of the Government, appointed Sonia Picado, from Costa Rica, and José Antonio Viera Gallo, from Chile, as its special representatives to observe the process of selection of the members of the Supreme Court.[185] The United Nations, the European Union and the Andean Community of Nations were also invited for this purpose. According to the terms of reference, the work of these observers was basically technical and does not involve any interference.

 

160.       Finally, on November 30, 2005, the new judges took office.  Thus the Supreme Court of Justice, which had remained inactive for approximately seven months, was reinstated. The new judges were elected based on best marks in the evaluation made by the Selection Committee; thirty-one justices and 21 alternates were appointed, including two women judges  and two women alternates. This process was lauded by the international observers of the United Nations, the Organization of American States and the Andean Community of Nations, who acknowledged the efforts of the Ecuadorian people, and supported the institutional strengthening that was initiated with these appointments.[186]  The Commission considers that this process sits down the bases for a true historic transformation of the Ecuadorian judicial power and extols the Government for their leadership in the process, and offers the support that the statutory and conventional faculties permit, to accompany this enterprise necessary to assure the due and efficient administration of justice as the best form to guarantee the enjoyment of human rights. 

 

161.       According to Articles 27, 33 and 31 of the American Convention, the Commission also observes that on May 25, 2005, the Administration of Alfredo Palacio issued Decree No. 162,[187] declaring a State of Emergency and a security zone in the provinces of Sucumbíos and Orellana, in order to ensure security and provide preventive protection of the physical and technical integrity of the oil facilities and wells. This decree, according to the Government, was prompted by a situation of conflict as well as by acts of vandalism that could have led to chaos, and would have disrupted the otherwise normal activities in both provinces. The opposition to the government holds that these measures were taken in response to peaceful protests that took place between May 22 and 25, and which were motivated by the harmful effects of oil extraction in those areas on the health and physical integrity of the population.

 

162.       Initially this situation could have been resolved with the lifting of the State of Emergency. However, on August 17 of this year, the president, arguing the reemergence of conflict in the area, issued Decree No. 426[188] declaring for the second time a State of Emergency in the provinces of Sucumbíos and Orellana. The demonstrators were calling for the profits obtained from the exports of crude to be reinvested in the same communities from which the oil was extracted.

 

163.       At both times, the Commission received information from representatives of civil society, criticizing the repression exercised by the public security forces against the inhabitants of these provinces, the arrests of demonstrators and municipal authorities, as well as the indiscriminate use of tear gas. The Commission closely monitored developments in this regard and requested information on these allegations to the State.  The Government has, only, transmitted a copy of the respective decrees, without providing to the CIDH any information on the drive of the security forces. 

 

164.       In addition, in October of this year, President Alfredo Palacio requested the Supreme Electoral Tribunal to call a national poll to ask the citizens whether they agreed or not to the convening of a constituent assembly. The Tribunal denied the request arguing that this would require a constitutional reform, and that the request should be directed to the Congress.[189]  In this way, a new tension has been brought about between the legislative and executive branches: the Administration wishes to reform the Constitution through a Constituent Assembly, whereas the Legislative Branch supports the idea of a Constitutional Assembly. Thus, on October 27, 2005 the National Congress of Ecuador requested that the OAS “within the framework of respect for the principles of non-intervention and of the Inter-American Democratic Charter, act immediately to activate the mechanism of collective action in defense of the institutional and democratic order.” [190]

 

165.      During the year 2005, particularly during the first months, the Inter-American Commission on Human Rights, in turn, has verified acts of violence, harassment of and threats against union, social, indigenous, political and student leaders who have expressed their public opposition to decisions taken during the Gutiérrez Administration. These acts of violence become factors that strike at the country’s fundamental guarantees and consequently its democratic and institutional stability.[191]  For this reason, over the course of this year, the Commission has adopted precautionary measures in individual cases of threats against journalists and leaders of civil society organizations.[192]

 

166.        This report of events has been made in order to offer a clear picture of the evolution of the institutional crisis in Ecuador. In recent years, the Ecuadorian political system has been one of the most unstable in the region.  The average time in office of the administrations is under two years.[193] Matters touched upon here account for the institutional deficiencies that Ecuador has endured over the years. The political instability that has characterized the country was again manifest when an elected president, under circumstances of massive social protests, did not complete his term.[194] The Commission contends, as it has before, that the replacement of a president elected by the popular vote before the expiration of his or her term always is a serious event requiring a critical view from the standpoint of the defense of democracy and fundamental freedoms.[195] The Commission likewise condemns the disproportionate use of force during the massive protests made by the people, particularly those occurred in April, and profoundly regrets the loss of human life.[196]

 

167.       The Commission also notes that, considering the current national situation, priority should be given to the strengthening of democracy and the consolidation of the rule of law, through the design of a new framework that respects the separation of powers. With this in mind, measures should be taken to reinforce judicial independence, judicial integrity and professionalism, and to ensure transparency, impartiality, integrity and professionalism as means to restore the people’s confidence. 

B.         Situation of the judiciary – judicial independence

168.     A judiciary that possesses the characteristics of independence and autonomy places limits on abuses of authority and is guarantor of the law as well as of the protection of the rights of all persons.[197] On various occasions the Commission has recognized judicial independence and impartiality as essential for the protection of human rights and effective rule of law.[198] In addition, the Inter-American Democratic Charter[199] “recognizes that representative democracy is indispensable for the stability, peace, and development of the region” and, inter alia, identifies the separation of powers and independence of the branches of government as essential for its realization. It should be noted, moreover, that an independent judiciary is an ideal channel to ensure an effective administration of justice and, at the same time, guarantee the protection of individuals’ rights in society.

 

169.     Thus, Ecuador’s institutional crisis affected the judiciary because of the irregularities that occurred with the dismissal of the Supreme Court justices during the restructuring of the judicial system in Ecuador since the end of 2004 and the beginning of 2005. In this respect, the Inter-American Court of Human Rights has stated:[200] 

73.       ... that one of the principal purposes of the separation of public powers is to guarantee the independence of judges and, to this end, the different political systems have conceived strict procedures for both their appointment and removal.  The United Nations Basic Principles on the Independence of the Judiciary[201] establish that:

 

The independence of the judiciary shall be guaranteed by the State and enshrined in the Constitution or the laws of the country.  It is the duty of all governmental or other institutions to respect and observe the independence of the judiciary[202] 

74.       As for the possibility of removing judges, these Principles stipulate: 

A charge or complaint against a judge in his/her judicial or professional capacity shall be processed expeditiously and fairly, in accordance with the national law.  The judge shall have the right to a fair hearing.  The examination of the matter at its initial stages shall be kept confidential, unless otherwise requested by the judge[203]

 

In other words, the authority in charge of the procedure to remove a judge must behave impartially in the procedure established to this end and allow the latter to exercise the right of defense.

This very grave situation has begun to reverse itself with the important process of selection and appointment of the Supreme Court justices, who took their oath of office in November 2005. The IACHR hopes that this trend continues to solidify in the future.

 

170.       The Commission notes that, along with these institutional factors, a matter that cannot escape analysis is judicial corruption. Bearing in mind that a basic condition to guarantee an effective Judiciary is broad access to prompt and effective justice, the Commission has received numerous reports alleging corrupt practices on the part of judicial officers. These practices range from demanding payments from litigants to accelerate the processing of the cases to giving bribes to influence Supreme Court justices’ decisions. These practices constitute obstruction and discrimination in the administration of justice, even more so if they are not followed by an investigation. Deprivation of the access to justice generally implies the denial of human rights, political exclusion and legal uncertainty.[204]  Indeed, this phenomenon in judicial systems that have highly bureaucratic mechanisms, and slow proceedings, undermines the efficiency of the system and contributes to the deterioration of the people’s trust.

 

171.       For this reason, the Commission stresses the need for a balance between independence and accountability. Judicial independence at any hierarchical level must work within a framework of ethical limits, established by law, oriented towards keeping this balance. Otherwise an erosion of the credibility of these institutions will ensue, which in turn will erode the foundations of the rule of law and the democratic framework. In this connection, it must be understood that the main problem to solve is not only the formal reorganization of the judicial branch,[205] but the recovery of the trust of the people in the state’s judicial institutions.  

C.         Judicial guarantees in the Republic of Ecuador

        172.      Having analyzed the state of the judicial branch, it is also useful to view the state of effectiveness of judicial guarantees in Ecuador. It should be noted that the Constitutional Court[206] is the one charged with protecting a series of rights related to human rights and, inter alia, to be the court of last resort for appeals related to amparo [defense of fundamental rights] petitions.[207]

 

173.       This is also the case of habeas corpus, because