CHAPTER III
THE RIGHT TO JUDICIAL RECOURSE AND THE ADMINISTRATION OF JUSTICE IN ECUADOR
An examination of the situation of human rights in Ecuador indicates that many violations of fundamental rights stem from deficiencies in the administration of justice. Virtually everyone with whom the Commission spoke on this issue, including Government officials, members of the judiciary, and individuals who had sought justice within the system, indicated that the performance of the judiciary was a serious problem, with consequences which affect the realization of a wide range of rights and freedoms guaranteed under the American Convention. Consequently, reference is made to the situation of the administration of justice in other relevant chapters of this report.
The provision of the American Convention which speaks most directly to the individual's right to judicial protection is Article 25, which establishes the right to have effective recourse to a competent court for the protection of one's fundamental rights under domestic law or under the American Convention.(1) Article 8 of the American Convention further specifies that the right to a fair adjudication of any criminal accusation or claim of a civil, labor, fiscal or other nature requires "a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal." Finally, it must be emphasized that the undertaking of every State Party to the Convention to "respect and ensure" the rights guaranteed, pursuant to Article 1.1, requires that mechanisms be put in place to ensure the effectuation of the rights set forth. As the principal mechanism for interpreting and applying the law, the courts play a fundamental role in ensuring the realization of all protected rights and freedoms. Inadequacies in the judiciary and the administration of justice jeopardize the ability of the individual to access justice in all spheres of life.
The 1992 reforms to the Ecuadorean Constitution represented a significant effort to address some of the concerns about the judiciary. Reforms and statutory changes included: increasing the number of Supreme Court judges, changing its jurisdiction and expanding its appellate powers; creating a judicial council;(2) enhancing the academic and professional requirements for judges; creating new systems for determining budget(3) and salaries within the judiciary; and taking measures to depoliticize the judiciary. The Supreme Court itself has taken steps to address delay in the criminal justice system.(4) The 1996 constitutional reforms include further steps in the effort to make the judiciary more accountable, such as strengthening the jurisdiction of the court charged with constitutional oversight.
It is reported that proposals to shift to the use of oral proceedings in certain judicial procedures are presently under study. As opposed to the present inquisitorial system, this would, for example, employ the public prosecutor to present accusations, which would be supported by the investigation of the judicial police. The prosecutor and defense counsel would be responsible for providing evidence, and the judge would act as a neutral arbiter and ensure that all procedural requirements were met.(5) This has been promoted in some sectors as offering a more efficient, transparent and flexible process.(6) In its March 19, 1997 submission, the Government noted that the Judiciary was studying proposals to shift to oral proceedings in certain types of cases and considered that this could offer efficiency, transparency and flexibility.
Nonetheless, serious problems remain and continue to impair the ability of individuals to exercise their right to judicial protection. To summarize the information and complaints received by the Commission, among the most severe impediments are: first, pervasive delay throughout the judicial system; second, barriers to the impartial and independent administration of justice which include corruption within the system and the impermanence of certain judicial positions; and third, lack of access to judicial recourse due to factors such as the absence of public defenders and the unresponsive distribution of courts in rural sectors. Complaints were also received alleging that the judiciary was ineffective in addressing complaints against the police, and that members of the police and security forces committed offenses against individuals with impunity. In general, it appears that the judicial system of the country remains substantially underfunded, and that this contributes greatly to each of the foregoing problems.(7) The Commission heard from many sectors of Ecuadorean society who expressed a lack of confidence in the ability of the courts to provide justice.
Article 25 of the American Convention guarantees the right of individuals to "simple and prompt recourse" to judicial protection. The principle that justice delayed is justice denied is reflected in the Article 8 stipulation that fairness requires processing within a reasonable time. Delay is especially pervasive within the criminal justice system, as is discussed infra in the sections on the right to liberty and the situation of human rights in Ecuadorean prisons.
The Commission is currently processing a series of individual cases in which the principal allegations concern unjustifiably prolonged preventive detention.(8) In one such case, it is confirmed that the defendant was preventively detained while the initial sentence and obligatory consultation were completed, a process which required thirty months and resulted in a sentence of two years. A similar case treats the situation of two defendants who were detained for two years and two months before a final sentence of two years was handed down against each. Another case examines the situation of a defendant held for 25 months before the charges against him were definitively dismissed and he was released. The Commission is also processing a case in which it is alleged that the accused remained in preventive detention while the initial investigation ("sumario") of the charges, which is to last no more than 60 days, remained open for four years. In two other cases under study, it has been confirmed that the defendants were preventively detained for five years. In each case, the charges were eventually dismissed.
Delay in being brought to trial results in grave injustice for individuals who may spend several years in prison only to be found innocent, as well as for those who are imprisoned for a longer period than the prescribed penalty for the crime charged.
Such delay is also a terrible injustice for those victimized by crimes who seek to have the wrong against them adjudicated, and the perpetrator held responsible. The Commission is currently processing several cases where family members whose loved ones were murdered some years ago have sought unsuccessfully to bring the state agents allegedly responsible to justice. Two of these cases concern deaths which occurred in 1992, two concern deaths in 1993, and another concerns a triple shooting which took place in 1993.
In extreme cases, delay may result in a form of legally sanctioned impunity for the perpetrators of violations. The Commission has received several reports of instances where it is alleged that state agents murdered individuals, but because the ten year statute of limitations for homicide had expired prior to the conclusion of the prosecution of the case, any judicial determination of the charge was precluded. The Commission is currently processing a case which concerns a claim brought against a member of the National Police for allegedly having brutally beaten a minor child in 1989. The claim was initiated in 1990, and processed by the Second Court of the First District of the National Police. The agent was eventually dismissed from the corps, due to a number of outstanding claims against him, but the judicial action was declared prescribed in 1995.
Delay in the judicial system reaches far beyond the criminal justice system, however. The Commission heard from individuals who had filed claims in civil and administrative matters ten or twelve years before but had yet to receive any determination. For example, the Commission is currently processing a case in which it is alleged that a claim filed in 1980 with respect to a question of land ownership had not been decided at the time of the Commission's on site visit in November of 1994.
In discussions with judges in the system, the Commission was told that in some cases delay is the result of certain pressures. High-ranking Government officials referred to problems that have been caused with respect to the increasing number of cases related to drug-trafficking. One well known jurist indicated that judges processing charges concerning drugs may be visited by representatives of defendants who offer either bribes or threats or both. In such cases, he said, judges may be reluctant to issue any decision at all. Charges of widespread corruption in the system concern both judges and lawyers. The creation of the Judicial Council through the 1992 constitutional reforms was intended to centralize and strengthen disciplinary controls over judges.
Questions have been raised about the periods of appointment for judges, as well as about their security of tenure. Supreme Court judges are appointed by the Congress, after the selection of an equal number by each branch of Government. The judges serve staggered 6 year terms, and may be reelected. Judges will be appointed to the new Constitutional Court by the Congress after the selection of candidates by each Government branch as well as some private sector interests. These judges serve four year terms and may also be reelected. In light of the need for judicial impartiality and independence in decision-making, the brevity of these terms has been identified within the judiciary as a source of concern. Concerns expressed about the system for removing judges focussed on the procedural inconsistency and lack of transparency of the process.
Access to judicial recourse is restricted to many individuals. The law requires that all claimants before the courts be represented by counsel; pro se litigation is not permitted. Given this requirement, the role of the public defender is obviously of vital importance for the many individuals who lack the resources to hire private counsel. However, the Commission is informed that only four public defenders are available in each of the two most highly populated cities of Quito and Guayaquil, with over two million and three million inhabitants, respectively. There are reportedly roughly two dozen public defenders in the entire country. Moreover, these attorneys handle a wide range of civil, administrative and criminal cases.(9) This number is obviously inadequate, even looking solely to the need for public defenders in criminal cases alone.
Domestic law requires that individuals be represented by counsel to access judicial protection. Under the present system, litigants who are unable to afford private counsel must wait for a public defender to become available. Such claimants must often wait for long periods to have access to justice. This is clearly inconsistent with the provisions of the American Convention. As the Inter-American Court of Human Rights has determined, discrimination in the application or availability of judicial guarantees on the basis of economic status is prohibited by a reading of the provisions of Articles 1.1, 8 and 24 of the American Convention.(10)
In certain zones of the country, particularly in rural areas, the inability to access judicial protection is a consequence of the insufficiency or lack of needed services and facilities. The Commission visited a community where the nearest court of any type was a nine hour drive away. The distribution and maintenance of facilities is, of course, intimately linked to the question of resources, as are many other obstacles confronting the judiciary. Judicial officials indicated to the Commission, for example, that they lacked even the rudimentary computerization to track the criminal case load. Any commitment to achieving a resolution of the current situation will require a consensus among the branches of Government as to the priority to be accorded to the administration of justice, and a correlative commitment of additional and sustained resources. While there has been recognition in some sectors of Government that this is in fact a critical situation, budget allocations continue at reduced rather than increased levels.
Individuals seeking judicial recourse against a member of the security forces of the State may be impeded by the misuse of tribunals of special jurisdiction. The exercise of such jurisdiction on the part of police and military courts is not limited to cases involving conduct in the line of duty of the members of those institutions. Police and military defendants are frequently tried in special courts in relation to charges concerning common crimes. The Commission was told that these processes are not made public, hearings before these instances are closed, and the results are not easily accessible. Moreover, a number of NGO's indicated concern over the reluctance of these instances to issue sentences against their own members. In fact, a November 1995 accounting from the Subsecretary of the Police to the President of the Human Rights Commission of the Congress of actions within the jurisdiction of the police courts indicated that almost none had resulted in the issuance of a sentence. Of the 4,568 cases initiated since 1985, only 46 had resulted in provisional sentences, and only 5 had resulted in final sentences. The majority remained in process or had been archived. More than 50 had been declared prescribed.
CONCLUSIONS
Under the American Convention, judicial protection must be accessible, prompt and effective. The right to a fair trial and to due process require a hearing and determination within a reasonable time. As the Inter-American Court has stated: "Any State which tolerates circumstances or conditions that prevent individuals from having recourse to the legal remedies designed to protect their rights is consequently in violation of Article 1(1) of the Convention."(11)
Moreover, the States Parties are obliged pursuant to Article 1.1 of the American Convention to protect and ensure the exercise of all the rights guaranteed therein "through suitable measures that will in all circumstances ensure the effectiveness of these rights and freedoms."(12) It is the role of the courts to administer justice and provide effective recourse for all acts which violate the rights of the individual recognized under domestic law or under the American Convention. The right to judicial protection and the role of the courts are of seminal importance.
An independent and effective judiciary is an essential element of a modern democratic system. It is important that the legal system be brought into harmony with the economic and development goals of the country, so as not to become a barrier to progress and growth.
RECOMMENDATIONS
The Commission recommends that the State take prompt and comprehensive measures to correct the chronic delay which characterizes the administration of justice.
Pursuant to Article 8.2.e of the American Convention, concerning the right of a defendant to be assisted by counsel provided by the state, the Commission recommends that measures be taken to prioritize the protection of this right through the assistance of public defenders, and to establish standards to ensure that those who require this service receive it in a prompt manner.
Given that all claimants must be represented by counsel to pursue their actions, the number of public defenders available to assist claimants must be increased, so that this service is available to every individual who requires them to have access to judicial protection to vindicate a protected right.
In accordance with the terms of the American Convention and its jurisprudence on this issue, the Commission recommends that the State take the internal measures necessary to limit the application of the special jurisdiction of police and military tribunals to those crimes of a specific police or military nature, and to ensure that all cases of human rights violations are submitted to the ordinary courts.
The Commission recognizes the efforts made by the State, and encourages it to continue to intensify its pursuit of judicial reform, both through internal measures, and through the technical and financial assistance international and intergovernmental organizations can provide. Without the allocation of additional human and material resources and the creation of a modern system, the problems within the administration of justice cannot be overcome.
Notes____________________
1. The full text of Article 25 provides that:
1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned, or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
2. The States Parties undertake:
a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;
b. to develop the possibilities of judicial remedy;
c. to ensure that the competent authorities shall enforce such remedies when granted.
2. The Government indicated in its observations on this report that Congress was in the process of studying a proposed law defining the membership, election process, structure and functions of this Council.
3. However, interim reports indicated that these steps to increase the judicial budget were thwarted when the Congress approved substantially decreased judicial budgets in 1994 and 1995.
4. Some of these are noted in the section concerning the prison situation, see infra, chapter VII.
5. See, J. Espinoza RamÃrez with E. Moreno, "Judicial Reform in Ecuador," in Judicial Reform in Latin America and the Caribbean, World Bank Technical Paper No. 280, at 192, 193 (M. Rowat, W. Malik & M. Dakoulias eds. 1995).
7. The Government noted in its March 19, 1997 observations that funding for the judiciary had been increased, but indicated that it remained insufficient, resulting in delay in judicial proceedings.
8. References in this report to cases being processed in no way indicate a prejudgment as to any facts or claims alleged; these references are illustrative and set forth information which is in fact in the public domain.
9. Ad hoc legal assistance programs are reportedly offered by some law schools and private foundations, but these efforts are not centrally organized or programmed, and law students are naturally inexperienced. In its March 19, 1997 submission, the Government noted that some measures had been taken toward improving the situation, and that the Latin American Institute for the Prevention of Crime and the Treatment of the Delinquent was assisting with a program to contribute to this objective.
10. See generally, Advisory Opinion OC-11/90 of August 10, 1990, "Exceptions to the Exhaustion of Domestic Remedies (Art. 46(1), 46(2)(a) and 46(2)(b) American Convention on Human Rights)," Ser. A No. 11.
12. Advisory Opinion OC-8/87 of January 30, 1987, "Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1) and 7(6) American Convention on Human Rights)" Ser. A No. 8, para. 25.