2
7.
It has neither been proven in the instant case that there are judicial practices in
Ecuador that may affect the efficacy of the existing legal recourses in order to protect the
right to property.
8.
Based on the foregoing, I consider that there has been judicial access to simple
and prompt recourses that have the sufficient legal virtuality to be effective, in
accordance with Article 25(1) of the Convention.
9.
I came to the foregoing conclusion after considering that Article 8(1) and 25(1)
are complementary provisions that protect the crucial judicial scaffolding over which the
protection of human rights recognized in the Convention, the constitutions and other
domestic rules rest. The proven facts in relation to the judicial problems in the instant
case specifically refer to the unwarranted delay in the processing of the subjective
remedies and the condemnation proceeding. This situation, in my opinion, does only
affect the right to due process established in Article 8(1) that the Court correctly
considered violated. But this delay is not automatically translated into a violation of
Article 25(1) that, as I briefly described, refers to other aspects of the judicial protection
of the rights.
10.
The people in charge of drafting the Convention established the guarantees of
access to judicial protection and the guarantees of due process in two different provisions
of the Convention. An harmonic reading of these rules lead us, necessarily, to distinguish
them, since, otherwise, they would have been included in only one provision. On the one
hand, Article 25(1) embodies the access to simple and prompt recourses or other
ordinary and effective remedies, that could be described as the writ of amparo that exists
in order to protect certain rights, or the ordinary judicial remedies, with the possibility of
fling appeals, provisional measures of protection, among others, also designed to protect
certain rights. Article 8(1), on the other hand, provides for guarantees of due process
that should be present once the person have had access to judicial remedies under
Article 25(1). The concept of “prompt” recourses of Article 25(1) differs from the concept
of “reasonable time” of Article 8(1) in that the first notion refers to the existence of
procedural rules that establish reasonable prompt terms in the manner described in
paragraphs 3, 4 and 5 of this opinion and the second notion refers to the way the
proceedings of the instant case were conducted by the courts, before which the Court
analyzes the complexity of the case, the procedural activities carried out by the parties
and the behavior of judicial authorities. And the notion of “effective recourse” of Article
25(1) refers to the necessary legal virtuality so that said remedies can result in binding
judicial decisions that finally will protect the right to property. This includes the fact there
is no, for example, very damaging judicial practice in the State in question that may
disprove the legal virtuality of protection (for example, the generalized fear of the legal
profession to represent the type of cause of action subjected to the case, among others).
11.
But, apart from the semantic analysis, there is the need to read the Convention in
a systematic manner, taking into account its purpose and end, which make us adopt the
interpretation that gives a greater scope to the rules that foster a better protection of the
rights established in the Convention. This better protection can be achieved, in my
opinion, by focusing the attention of States at the different moments of State action
channeled to structure an adequate domestic judicial protection. In that way, Article 2
refers to the duty to adopt all domestic legal provisions, be it legislative or of other
nature, in order to make effective the rights and liberties embodied in the Convention;
Article 25, establishes the need for the existence of the access to the judicial protection
of rights, and not by limiting the mere existence of the rules but by adopting the judicial
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