6
June 27, 2001, which said that amparo action was not admissible when brought with respect to “organic
and ordinary laws, decree laws, decrees, ordinances, statutes, regulations, and generally binding (erga
omnes) resolutions,” i.e., a series of acts of a general and abstract nature.3 By contrast, the Commission
notes that resolution 25-160 that removed the members of the Supreme Electoral Tribunal affected the
rights and specific interests of the alleged victim with concrete damage that by its nature could not be
challenged through an unconstitutionality suit, which as has been explained, was conceived in principle
to analyze the constitutionality of general and abstract normative acts.
27.
In the second place, the Commission observes that the unconstitutionality suit is not a
remedy of rapid and simple access for the alleged victim because Article 277 of Ecuador’s 1998
constitution, in force at that time of the facts, lists the specific subjects authorized to file such suits and
the requirements for doing so,4 and according to the regulation governing the remedy, it cannot be used
directly by an individual who must first get signatures of 1,000 citizens or a favorable ruling by the Public
Defender. The IACHR also notes that on the date when the facts occurred the regulations had not been
approved for access to the Public Defender, so there was no procedure or specific deadlines.5
28.
In the third place, the IACHR observes the doubtful efficacy of any action filed with the
Constitutional Court, because that organ had already approved a resolution ruling out lawsuits against the
Congressional resolution that had removed the alleged victim. Moreover, the same Constitutional Court
had been formed after the termination of the former members of the Constitutional Court by the same
resolution that removed Mr. Aguinaga and the other members of the Supreme Electoral Tribunal.
29.
Therefore, and in view of the lack of information from the State regarding the suitability
and efficacy of the unconstitutionality remedy in cases like this one, the Commission considers that for
the purpose of analyzing compliance with the requirement in Article 46 of the Convention the alleged
victim is not required to exhaust that remedy.
30.
The Commission notes that the State said that the petitioner should exhaust the
administrative litigation remedy, which is applicable to regulations, acts, and administrative resolutions
that violate a right or immediate interest of the petitioner, or that violate private rights, provided the
offending regulation, measure or decision was approved as a consequence of a general provision that
3 IACHR, Case 12.600 Hugo Quintana Coello et al (Supreme Court of Justice) Ecuador (Merits), March 31, 2011, paras.
47 and 136.
4“Art.
1.
277.- Unconstitutionality suits may be filed by:
The President of the Republic, in cases specified in section 1 of Art. 276.
2.
same article.
The National Congress, by decision of a majority of its members, in the cases specified in sections 1 and 2 of the
3.
same article.
The Supreme Court of Justice, by resolution of the full court, in the cases specified in sections 1 and 2 of the
4.
The provincial or municipal councils, in the cases specified in section 2 of the same article.
5.
One thousand citizens who have political rights, or any person upon favorable recommendation by the Public
Defender, in the cases specified in sections 1 and 2 of the same article.
The President of the Republic shall request the decision prescribed in sections 4 and 5 of the same article. (…)”
5 See also IACHR, Report No. 8/07, Petition 1425-04, Admissibility, Hugo Quintana Coello et al, Ecuador, February 27,
2007, para. 29.