dismissal proceedings at the hands of the national Congresses, which should never be
considered exempt from compliance.
B) Lack of analysis of the principle of legality (Article 9 in conjunction with Article 1(1) of
the American Convention)
84.
While I concur with the other members of the Inter-American Court regarding all the
operative paragraphs of this Judgment, in the following lines I wish to make some
clarifications, in the same tone as the points discussed previously regarding the analysis of
Article 8(2) of the Convention, regarding the possibility of having analyzed the possible
violation of the principle of legality (Freedom from Ex Post facto Laws) provided for in Article
9 of the American Convention.
85.
First, it should be noted that in this case the State of Ecuador acknowledged the
violation of Article 9 of the Convention in the following terms:
Ecuador acknowledges [...] principle of legality in Article 9 of the American Convention, inasmuch
as the law contained no specific grounds for removing the judges from office, and that the National
Congress’s resolution could have been understood as an ad-hoc proceeding of a punitive nature.
(Underlining added).
86.
It is true that the State’s declaration made it difficult to understand the scope of its
acknowledgment of international responsibility on this point, particularly because the InterAmerican Court considered it proven that at the time of the facts, it was the Supreme Court
of Justice itself which had the authority to investigate and potentially sanction any judges
who might have committed disciplinary infractions. In other words, domestic law did provide
grounds and procedures for the removal of judges.
87.
Despite the State’s acquiescence, in its Judgment the Inter-American Court decided
not to analyze whether the National Congress’s decision to terminate the Supreme Court
justices on December 8, 2004 was of a punitive nature and, therefore, it did not examine
the arguments presented by the Inter-American Commission and the victims’
representatives in relation to Article 9 of the Convention. In that regard, as I mentioned
previously (supra para. 77), paragraph 181 of the Judgment stated that:
[h]aving determined that the body that undertook the process was not competent, it is unnecessary
to examine the other guarantees established in Article 8(1) of the Convention. Therefore, the Court
will not examine the arguments presented by the Commission and the representatives regarding
the alleged violation of other judicial guarantees. Similarly, given the effects on the separation of
powers and the arbitrary nature of the action by Congress, the Court considers it unnecessary to
analyze in detail the arguments of the parties as to whether or not the dismissal decision was an
action of a punitive nature, and will therefore not examine the alleged effects of Article 8(2) of the
Convention, as well as other aspects related to the possible scope that the principle of legality
(Article 9 of the Convention) would have had in this case.
88.
It should also be emphasized that the Inter-American Court concluded that the
events that took place constituted an “abuse of power”. Indeed, paragraph 177 of the
Judgment states that:
Bearing in mind the foregoing, the resolution that called for the judges’ dismissal was the result of a
political alliance, which was intended to create a Supreme Court sympathetic to the political
majority existing at that time and to impede criminal proceedings against the acting president and a
former president. The Court has confirmed that Congress’s resolution was not adopted by virtue of
an exclusive assessment of specific factual evidence in order to ensure full compliance with the
existing legislation, but that it pursued a completely different objective, related to an abuse of
power. An example of this is that the summons to the session of Congress did not mention the
imminent possibility of dismissing the judges […].Thus, the Court emphasizes that these elements
support the affirmation that a mass and arbitrary dismissal of judges is unacceptable given its
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