Despouy as Special Rapporteur on the Independence of Judges and Lawyers, in the
context of his three visits to Ecuador in 2005, may be understood as a “previous
intervention” in the instant case.
15.
The President notes that, according to the information provided, Mr. Despouy
made three visits to Ecuador and prepared a report in his capacity as United Nations
Special Rapporteur. In particular, Mr. Despouy indicated that “[o]ne of the important
activities of the Rapporteur includes making visits to countries to examine the situation
of the Judiciary, the exercise of the legal profession and all matters related to Justice.”
He added that “the recommendations are based on specific facts that affect the interAmerican public order, [but] do not set out to judge or participate in an individualized
way in specific cases.”
16.
In this regard, the State did not present any evidence, beyond the references to
the mandate and report of the Rapporteur, that he had intervened in some way in the
matter raised in this case, either at the domestic level or in the processing of the case
before the Inter-American System, which could create doubts concerning the duty of
objectivity of an expert witness before this Court. His examination of the situation in
Ecuador in 2005 as United Nations Special Rapporteur would be, precisely, contrary to
what the State has argued, an element that prima facie would suggest a greater
knowledge of the case in his potential role as expert witness in the case.3
Consequently, this Presidency dismisses the objection raised by the State against Mr.
Leandro Despouy and admits his expert testimony. Its object and the manner in which
it will be received are set forth in the operative part of this Order (infra Operative
paragraph 1).
C) Objection by the State to the expert witnesses proposed by the
representatives
17.
In their brief of pleadings and motions, the representatives proposed as expert
evidence the statement of Mr. Rafael Oyarte on “the way in which due process is
applied in the Ecuadorian judicial system, the definition of a natural judge, the
principle of independence and impartiality and the way in which judges of Ecuador’s
highest court were appointed and dismissed.” The representatives also proposed that
Mr. Alejandro Ponce Villacís render an expert opinion on “international standards
regarding the independence of the Judiciary, the scope of the rights involved in the
case and guarantees for the Judicial branch.” Upon presenting their definitive list, the
representatives indicated that Mr. Oyarte would testify on “the current regulatory
framework, both constitutional and legal and regulatory, governing the selection of
judges (vocales-magistrados) of the Constitutional Court, the application of
impeachment proceedings and grounds for removal” and Mr. Ponce would refer to
“international standards on the independence of the Judiciary and the human rights
applicable to the case.”
18.
The State objected to the expert opinion of Rafael Oyarte, arguing that there
was “a difference between the proposed object” stated in the brief of pleadings and
motions and that mentioned in “the definitive list of deponents.” It added that “the
expert witness was an employee (adviser) at the Constitutional Court [of Ecuador]
from July 15, 2000 until January 6, 2004” and therefore “he has prior knowledge of the
situation, having worked at the Constitutional Court at the time when the facts that are
3
Cf. Case of the Kichwa Indigenous People of Sarayaku v. Ecuador. Order of the President of the InterAmerican Court of Human Rights of June 17, 2011.
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