words, they were appointed prior to August 10, 1998, a fact that supposedly warranted the
application of that provision. Third, the transitory provision stated that it was applicable to
officials appointed for a fixed term of four years. The Court finds that both the Constitution
in force at the time of the facts, and the constitutional amendments made previously,
determined that the term of the Supreme Court justices was indefinite, since they stated
that “[t]he judges of the Supreme Court of Justice [would not be] subject to a fixed period
in relation to their tenure in office [and would be suspended from] their duties for the
reasons established by the Constitution and by law.” 210 Thus, it was clear that the Supreme
Court justices were not subject to a fixed term of four years in office.
167. Bearing in mind the foregoing, it is clear to the Court that Transitory Provision 25
could not provide grounds to support the decision to remove the judges from office, and
therefore did not fulfill one of the conditions permitted for removing judges from office, i.e.
that they had completed their term or period of office, according to the standards on judicial
independence established by this Court.
1.2.3. Opportunity for the judges to be heard
168. Although it has already been stated that the National Congress did not have
jurisdiction to dismiss the Supreme Court judges from office (supra para. 162), bearing in
mind that the State acknowledged this point and that it is one of the guarantees established
in Article 8(1) of the Convention, the Court shall proceed to analyze it. The Court has
elaborated on the right to a hearing enshrined in Article 8(1) of the Convention, in the
general sense of understanding that every person has the right to a hearing by a competent
court or state body responsible for determining their rights and obligations. 211 Given the
State’s acquiescence, and based on the evidence contained in the case file, it is fully proven
that the judges were removed from their positions without having had an opportunity to
appear before Congress to respond to the charges leveled against them or to challenge the
reasons for which they were removed from office. Furthermore, the Court stresses that the
judges learned of their dismissal in several ways, and none of them received formal
notification from Congress regarding the matter to be discussed at the special session on
December 8, 2004. Instead, the judges found out about the hearing and the decision to
dismiss them via the media or through rumors (supra para. 89).
169. Given that the judges were not notified about the special session to be held by
Congress and, even less, about the motion that would be presented to remove them from
office, the judges were not present, were not heard and were unable to exercise any means
of defense, such as offering arguments or evidence in their favor.
1.3.
Institutional facet of judicial independence, separation of powers and democracy
170. The Court has made some clarifications regarding the institutional aspect and
objective dimension of judicial independence (supra paras. 150 to 155). However, in the
circumstances of this case, which differs from previous cases that concern the arbitrary
dismissal of individual judges, it is essential to examine in greater detail to what extent the
mass dismissal of judges, particularly of High Courts, constitutes not only an attack against
judicial independence but also against the democratic order.
210
Article 202 of the Constitution of the Republic of Ecuador of August 11, 1998 (File of attachments to the
answer brief, volume I, page 3336).
211
Cf. Case of Genie Lacayo v. Nicaragua. Merits, Reparations and Costs. Judgment of January 29, 1997. Series
C No. 30, para. 74, and Case of Cabrera García and Montiel Flores v. Mexico. Preliminary Objection, Merits,
Reparations and Costs. Judgment of November 26, 2010. Series C No. 220, para. 140.
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