does not present the characteristics of civil precautionary measures, since it does not
admit the requirement of injunctions.
78.
In summary, the real consequence of a conviction of this Court is the political
and property sanction against the main leader of the opposition party to the State
government whose Executive was placed in a defenseless situation when formulating
the singular acknowledgment of responsibility before this very Court.
III.3. Defenselessness of the ontically convicted
79.
If we ignore the real-world details that allow us to verify that the leader of the
most important Ecuadorian political opposition force would be the main victim of the
formal conviction of the State, it coherently imposes that he be deprived of exercising
his right to defense. This is impeccable logic: by not being accused, he will not be
convicted and, therefore, he has no right to claim to defend himself before the Court.
In my opinion, this is a clear example of the breakdown of the logical-real structure
that links law with the world and that, as in all similar assumptions, produces a
paradoxical result.
80.
The person directly prejudiced by this judgment noted before the Court the
innumerable times that he was cited by name by the Commission, both in written
and in oral statements, as well as by all the other participants in the hearing, which
placed him in the position of central protagonist of the case. Faced with the possible
infringement of his rights as a result of a judgment of this Court, he requested to be
heard by its judges.
81.
In a divided vote, the Court decided not to reopen the hearing to hear his
version of the facts, while stating that he could do so by way of amicus curiae.
82.
This decision is unique in the case law of this Court, due to the unsuitability
of the nature and function of the amicus curiae, which, according to its traditional
concept and its own nomen iuris, is that of a report, input or contribution enriching
the Court’s perspective, always coming from a friend of the court and not from one
of the parties involved, compromised or directly prejudiced in the controversy, as the
leader of the Ecuadorian opposition would be in this case.
83.
As can be deduced from the above, this contribution by the friend of the court
is not evidence. Even in the event that evidence was indicated that the court lacked
and wished to take into account, it should order its receipt ex officio, but not consider
the amicus curiae in itself as evidence. The procedural problem created by the highly
respectable opinion of the majority of this Court is that it does not make it clear
whether it assigns the character of evidence or an act of defense to something that
traditionally and without any doctrinal dissent has always been considered as a
friendly collaboration for greater and better enlightenment of the court.
84.
Having ruled out the legal nature of evidence of the amicus curiae, in terms
of its possible character as a statement by the accused, it should be noted that in all
punitive proceedings it has the nature of an act of defense, in which the accused is
given the possibility to explain their arguments as broadly as possible, whenever they
so wish and without their refusal implying a presumption against them.
85.
In fact and in accordance with the reality of the world, the main victim of this
judgment formally pronounced against the State has not had the opportunity to be
heard in the proceedings before the Court, where he has only been given the
opportunity to declare himself as friend of the court, despite having been the most
cited person by name in the written accusation, in the oral accusation, in the
statements of witnesses and experts, that is, that he has been the constant presence
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