106. The Court cautions that the remedy available to Mr. Aguinaga Aillón, by express
mandate of the Constitutional Court, would have been an action of unconstitutionality. Under
the provisions of the Ecuadorian Constitution in effect at the time, however, such a motion
could be lodged either if it had the backing and signatures of 1000 people in the “enjoyment
of their political rights,” or if it had received a favorable report of the Ombudsman. Moreover,
the cause of such an action was to examine whether a provision or administrative act were
consistent with the Constitution, in substance and in style, but it held out no possibility to
redress a right that had been breached; this would have been available only under a motion
of amparo, which was not available to Mr. Aguinaga Aillón.
107. Because it was impossible to lodge a motion of amparo, Mr. Aguinaga Aillón was
prevented from taking any action whatsoever against his dismissal from the TSE. Mr.
Aguinaga Aillón told this Court:
[…] it was impossible for me, for the members of the Constitutional Court, or for the members
of the Supreme Court to [take any legal action] because on December 2, 2004, the new
Constitutional Court that had replaced the now dismissed Constitutional Court adopted a
decision ordering all the judges and courts in the country to deny motions of amparo
challenging Resolution R-25-160, and that if they did admit such a motion, they would be
breaking an explicit law and would be subject to prosecution, and as a result, the doors to
effective judicial protection of our rights and interests were closed.120.
108. The Court finds that, because there was no effective judicial remedy available to
protect their rights that had been abridged, and in view of the State’s recognition of
responsibility, the State violated Article 25(1) of the Convention, read in conjunction with
Articles 1(1) and 2 thereof, in injury of Mr. Aguinaga Aillón.
109. The Court also notes that the legal consequences of the impossibility of challenging
the ruling, under the terms argued by the Commission, were addressed above in the
discussion on Article 25 of the Convention. In view of the State’s recognition of
responsibility, the Court concludes that the State is responsible for violating Article 8(2)(h)
of Convention, read in conjunction with Articles 1(1) and 2 thereof, in injury of Mr. Aguinaga
Aillón.
VIII
REPARATIONS
110. Pursuant to the provisions of Article 63(1) of the American Convention, the Court
has held that every violation of an international obligation which results in harm creates
a duty to make adequate reparation, and that this provision reflects a customary norm
that constitutes one of the fundamental principles of contemporary international law on
State responsibility.121
111. Reparation of harm brought about by the violation of an international obligation
means full restitution (restitutio in integrum) whenever possible, which includes the
restoration of the prior situation. If this is not possible, as in most cases of human rights
violations, the Court will order measures to guarantee the rights that have been violated
and to redress the consequences of the violations.122 It has seen the need to award
120
Cf. Statement in public hearing by Mr. Aguinaga Aillón, September 8, 2022, during the 151st session.
Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and Costs. Judgment of July 21, 1989. Series
C No. 7, para. 25, and Case of Nissen Pessolani v. Paraguay, supra, para. 105.
121
Cf. Case of Velásquez Rodríguez v. Honduras. Reparations and Costs, supra, paras. 25 and 2, and Case
of Nissen Pessolani v. Paraguay, supra, para. 106.
122
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