Convention.” Therefore, it concluded that all the foregoing, together with “the clear lack of
legal and constitutional grounds for the National Congress’s interpretation of Transitory
Provision 25 of the 1998 Constitution, [implied] that the State of Ecuador [had] violated the
right enshrined in Article 9 of the American Convention in conjunction with Article 2
thereof.”
128. According to the representatives, “[i]n Ecuador, at the time of the judges’ dismissal
by Congress, there was no law specifying the grounds for removing judges of the Supreme
Court of Justice”, which would violate “one of the rules of the principle of legality.” Indeed,
the representatives argued that under Article 202 of the Constitution in force at that time,
“the competent authority for appointing and dismissing judges wa[s] the [Supreme Court of
Justice] itself.” They pointed out that “[t]he Supreme Court’s own interpretation of this
provision was that the plenary of the [Supreme Court of Justice], being the nominating
body, reserved the right to revoke that appointment by means of a disciplinary procedure.”
Thus, on October 2, 2003 the Supreme Court published the document entitled “Jurisdiction of
the Supreme Court to hear complaints submitted against its member judges”, which “was the
only constitutional provision in force at the time of the events.” Consequently, according to
the representatives, the proceeding was a punitive “ad hoc trial”, in no way contemplated in
the Ecuadorian legal system. The representatives concluded that “[t]he Ecuadorian State
violated Article 9 of the Convention by failing to establish the legal grounds for dismissing a
judge and a proceeding with all the guarantees of due process.”
129. In its answer brief, the State argued that “Resolution 25-181, declaring the
termination of the judges, was neither a judgment nor a sanction stemming from an
accusation against the judges, but was merely complying with a constitutional provision
which must be observed and which established legal effects that were already known to the
alleged victims.” Subsequently, in acknowledging during the public hearing that Article 9 of
the Convention had been violated, the State explained that because “the law did not contain
specific grounds for removing judges from office, the National Congress’s resolution could
have been understood as an ad-hoc proceeding of a punitive nature.”
8.
Arguments regarding Article 2 of the Convention
130. The Commission argued that a link exists between Article 25 and Article 2 of the
American Convention, given that the latter establishes “the general duty of States to adapt
their domestic legislation to the provisions of this Convention to guarantee the rights
enshrined therein, established in Article 2, including such legislative or other measures as
may be necessary to give effect to those rights or freedoms enshrined therein, as well as the
adoption of measures to suppress provisions and practices of any nature violate the
guarantees contemplated in the Convention.”
131. The representatives argued that Article 2 of the Convention was violated because
“Ecuador had not issued a law [that established] the grounds for the dismissal of judges.”
They also argued that although “Ecuador has undertaken a profound legal reform in issuing
the 2008 Constitution and the Organic Code of the Judiciary,” currently there are some
“provisions that could undermine judicial independence.” The foregoing, in consideration
that “a representative appointed by the President of the Republic who heads the Council of
the Judiciary and this body has the power to administratively sanction judges, including
justices of the current National Court of Justice, which jeopardizes the principle of
independence and impartiality of justice.” The representatives added that “the State
violated Article 2 of the Convention by failing to establish legal or other measures to prevent
a repetition of the violations committed against the judges of the [Supreme Court of Justice]
in 2004.”
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