183. In this regard, the sanctioned judges were not notified of the debate on the
irregularities of their appointment during the session on November 25, 2004. Indeed, from
the evidence in the case file, it is fully proved that the judges were removed from office
without having the possibility of appearing before the National Congress to respond to the
charges that were being made against them, or to contest the arguments based on which
they were terminated (supra para. 65). Given that the termination entailed a determination
of the rights of the judges, it was necessary that, in some way, their possibility of being
heard was guaranteed in relation to the alleged irregularities because of the “single-list”
vote.
2.2.2. “Ne bis in idem,” right to a hearing, and right of defense during the impeachment
proceedings
184. Nevertheless, and in relation to the impeachment proceedings, the judges were
notified on November 24, 2004, about the impeachment proceedings against them to be
held on December 1, 2004 (supra para. 81). On December 1, 2004, they were able to
defend themselves with regard to the decisions that they had adopted concerning the
fourteenth salary and the D’Hondt method. On that occasion, the judges submitted their
arguments against the motions of censure that would be submitted to a vote. Judge
Cevallos argued that “impeachment was only admissible for statutory and constitutional
infractions committed in the performance of functions,” and that the Constitution stated
clearly that judges were “not responsible for the votes they emit[ted] and for the opinions
they express[ed] in exercise of their functions.”210 Judge Cevallos also emphasized the need
for the total freedom of the Constitutional Tribunal, and explained that, “to the contrary,
each time that it attempted to apply constitutional control to the decisions of the National
Congress, there w[ould] be impeachment proceedings against those who do not agree with
the wishes of the legislators, and Congress w[ould] become a court to review the decisions
issued by the Constitutional Tribunal, in final instance.”211 Meanwhile, alternate Judge
Jaramillo acknowledged the faculty of the National Congress to impeach the judges, but
underscored that the Constitution indicated that “they w[ould] not be held responsible,
either civilly or criminally, for the votes and opinions they issue[d] in the exercise of their
functions.”212
185. In this regard, the Court considers that, although the judges appeared at the session
of December 1, 2004, during which the motions of censure that had been presented were
not approved, and the content of the motions of censure on which a vote was taken on
December 8, 2004, was not changed, nevertheless, at the December 8 session, the decision
was taken to re-open the vote on the four motions of censure that had been voted on
previously and, in fact, in the end the motions were adopted (supra paras. 93 and 94). It
should be stressed that, according to article 92 of the Law on the Organization of the
Legislative Function, once a motion of censure has been submitted, it “shall conclude with
the respective vote.”213 In this regard, without claiming to establish a general principle
210
National Congress Record No. 24-326 of December 1, 2004 (merits file, tome I, folio 446).
211
National Congress Record No. 24-326 of December 1, 2004 (merits file, tome I, folios 446 and 447).
212
National Congress Record No. 24-326 of December 1, 2004 (merits file, tome I, folio 476).
213
The first paragraph of article 92 of the Law on the Organization of the Legislative Function of Ecuador
established: “[w]hen the motion of censure has been proposed, the Speaker of the National Congress or his
deputy, shall indicate the date and time of the session in which the debate will commence that will conclude with
the respective vote.” Article 92 of the Law on the Organization of the Legislative Function of Ecuador (file of
annexes to the answering brief, tome I, folio 3640).
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