67.
Nevertheless, I consider that the Judgment should have placed greater emphasis on
the anti-democratic attack that the public authorities made on the Constitutional Tribunal in
this case. Thus, even though the ICourtHR declared the violation of Article 8(1) of the
American Convention, owing to the violation of the right to be heard and to the guarantee
of competence to the detriment of the eight victims as a result of their arbitrary termination
and the impeachment proceedings; it should also have analyzed the violation of Article 8 in
greater depth, from the perspective of the safeguard that the inter-American system
professes for the democratic rule of law and, in particular, the independence of the judges
who ensure its functioning, and who make it resistant to the assault of the political
authorities. In addition, the Judgment should have made greater progress in the
jurisprudential development of the Inter-American Democratic Charter, specifically in
relation to the content of Article 3. The contentious function of the Inter-American Court
consists in deciding the disputes that the Inter-American Commission and the parties
submit to it in a specific case. It is undoubtable that it also has the mission to be guarantor
of the principles that compose the inter-American human rights system. It can achieve this
by guiding, by means of interpretation, the meaning of the said principles in order to clarify
them. Thus, deciding the dispute between the parties and the implications of the law is one
of the mandates of the inter-American jurisdiction, but not the only one, because it is also
responsible for interpreting the American Convention, the importance of which is increased
owing to the very few cases it hears.
68.
The proven facts reveal a violation on many fronts of the judicial independence
protected by the American Convention, as it is enhanced by the Inter-American Democratic
Charter; especially as regards its aspect of the institutional independence of the members
of the Constitutional Tribunal of Ecuador. And also the institutional independence of the
Constitutional Tribunal, in its capacity as guarantor of the country’s democratic system,
based on the legal and constitutional framework of Ecuador in force when the judges
terminated by the National Congress were originally appointed. In this regard, these
aspects should have been related more strongly to the inter-American case law on judicial
independence that has been mentioned previously in this opinion and, in this regard, an
emphatic reprimand should have been issued owing to the flagrant abuse of political power
that occurred in this case against the Constitutional Tribunal and its independence.
69.
Indeed, at the session of November 25, 2004, during which resolution No. R-0252005 was approved, which terminated the members of the Constitutional Tribunal because
of supposed problems in the way in which they had been appointed, Congress failed to cite
any norm as legal grounds for declaring the termination and, in the instant case, nor did
the State indicate the norm on which the said decision was based. Even though the “single
list” voting mechanism was not expressly established in Ecuador’s domestic laws, no
legislative, administrative or judicial actions were filed to contest that mechanism following
the appointment of the judges on March 19, 2003.
70.
Thus, a serious lack of logical congruence by Congress can be seen, because it
waited more than 18 months to rectify the supposed irregularity, the explanation for which
was eminently political, given the crisis of the powers of the State at the exact moment in
which the dismissal of both the Constitutional Tribunal and the other high courts of the
State occurred. Even though Congress could have impeached the judges – as it finally did,
with the irregularities that will be emphasized below in this opinion – no legal grounds can
be noted that empowered Congress to review and repeat the first vote, and then to decide
17
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