Aillón from office, there was no need to question whether the dismissal decision was
a punitive act and subject to Article 9 of the Convention. 27 We believe that the
majority neglected a central point of the case when it decided not to examine whether
this was a sanction—as indeed it was—and fully analyze its consequences. This
omission by the majority weakened the legal analysis of the violations against Mr.
Aguinaga Aillón, which in our view, were the result of a punitive decision by the
Congress, openly contrary to the reinforced guarantees that the Convention provides
to justice operators.
30.
We take a position contrary to that of the judgment and consider it essential
to understand that, while the congressional decision did not comprise a criminal
sanction, nor was it an administrative sanction per se, the dismissal of the TSE
members took place at a time of political turmoil. Its purpose was to change the
membership of the highest-level decision-making bodies on the Constitutional Court,
the Supreme Court and the Supreme Electoral Tribunal, with the intention of favoring
the interests of certain political groups and warding off prosecution of the thenpresident, in the understanding that criminal proceedings against a former president
underway in the Supreme Court would eventually culminate in a ruling by the high
courts.
31.
It seems clear to us that Mr. Aguinaga Aillón’s dismissal, like that of the other
justices and officers who were removed from the high courts, constituted materially
a masked form of sanction that damaged the professional, financial, and personal
lives of the people involved. We therefore hold, as did the Commission and the
representatives, and as the State itself acknowledged in the two earlier cases
(Quintana Coello and Camba Campos), that the legislative act by which Mr. Aguinaga
Aillón was dismissed was punitive in nature, and thus constituted an expression of
the punitive power of the State that should have been examined under Article 9 of
the Convention, bearing in mind that, in light of this Court’s case law, the precept
applies not only to criminal proceedings, but also to punitive processes. 28
32.
The Court previously set the conditions for applying Article 9 to administrative
or disciplinary action, as in the case of Baena Ricardo v. Panama, when it pointed to
the similar effects on the rights of the accused and noted that both administrative
and punitive sanctions undermine, remove, or alter individual rights. There is no
question in this case that the ad hoc process not only intended to restrict the victim’s
rights, but succeeded in doing so by bringing about the dismissal of Mr. Aguinaga
Aillón, and this is why the standards of freedom from ex post facto laws enshrined in
this article of the Convention are fully applicable to the case at hand.
33.
The judgment, following the lead of the two earlier cases from a decade ago,
recognizes that “the alliance of the government in power with the political party
headed by former President Bucaram provides an indication of the possible reasons
or purpose for wanting to remove the justices of the Supreme Court and the members
of the Constitutional Court, that is, the interest in putting a stop to criminal
proceedings being conducted by the Supreme Court against former President
27
Cf. Case of Aguinaga Aillón v. Ecuador, supra, para. 89.
Cf. Case of Baena Ricardo et al. (270 workers) v. Panama. Merits, Reparations and Costs. Judgment
of February 2, 2001. Series C No. 72, para. 106.
28
9