On July 22, 2011, the Inter-American Commission on Human Rights (IACHR) issued an important decision regarding judicial independence when it concluded that Ecuador had violated the American Convention on Human Rights over its 2004 dismissal of eight of the 18 judges of its Constitutional Court. A little over three months later, in November 2011, the Commission referred the case to the Inter-American Court of Human Rights.
The key fact for this case was the Ecuadorian National Congress’ November 25, 2004, termination of all the 18 principal and alternate members of Ecuador’s Constitutional Court, eight of whom filed a complaint with the IACHR. This key fact occurred in the following context:
- In January 2003 during the presidency of Gustavo Noboa three of the petitioning former judges were designated by the Congress as Judges of the Constitutional Court for four-year terms.
- In March 2003 during the presidency of Lucio Gutierrez the other five of the petitioning former judges were designated by the Congress as Judges of the Constitutional Court for four-year terms.
- On March 24, 2003, all of the 18 Judges of the Court took office.
- Apparently sometime between March 24 and June 13, 2003, the Court in Case No. 004-2003-TC (“Case # 4”) decided that a labor statute was unconstitutional.
- On June 13, 2003, a resolution was introduced in the Congress to censure five of the judges for their votes in Case # 4. Another version of this resolution was introduced three days later.
- Apparently sometime between March 24, 2003, and May 31, 2004, the Court in Case No. 025-2003-TC (“Case # 25”) decided that certain provisions of Ecuador’s Electoral Law were unconstitutional.
- On May 31 and July 7, 2004, two similar resolutions were introduced in the Congress to censure six of the Judges for their votes in Case # 25.
- On November 9, 2004, an application for the impeachment of President Gutierrez was thwarted, but the details of this are not spelled out in the IACHR’s decision.
- On November 24, 2004, President Gutierrez announced the Government’s intent to ask Congress to reorganize the Court in order to “depoliticize” it. In response the Court published an announcement in the national press that removing the sitting judges by a mere congressional resolution would be illegal and that impeachment was the only proper method for such removal.
- On November 25, 2004, the Congress passed a resolution declaring that all the judges of the Constitutional Court had been illegally designated in 2003 and, therefore, terminating them. On the same day, the Congress designated new members of the Court.
- On December 1, 2004, the Congress held an impeachment proceeding for five of the petitioners and one other Judge. In that proceeding the Congress debated the previously mentioned four proposed resolutions censuring the judges, but did not adopt any of these resolutions. Nor did the Congress overturn its November 25th resolution terminating the judges.
In February 2005 eight of the former Judges filed a complaint with the IACHR alleging that their removal violated the American Convention on Human Rights. Two years later, in February 2007, the Commission decided that most, but not all, of the complaint was admissible, i.e., was entitled to be treated on the merits.
Another four-plus years passed, and on July 22, 2011, the Commission issued its decision on the merits. It concluded that the State of Ecuador had violated the rights to a fair trial, to freedom from ex post facto laws and to judicial protection enshrined in the following articles of the American Convention:
- “Article 8. Right to a Fair Trial. 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”
- “Article 8. Right to a Fair Trial. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: .
- b. prior notification in detail to the accused of the charges against him; . . .
- h. the right to appeal the judgment to a higher court.”
- “Article 9. Freedom from Ex Post Facto Laws. No one shall be convicted of any act or omission that did not constitute a criminal offense, under the applicable law, at the time it was committed. A heavier penalty shall not be imposed than the one that was applicable at the time the criminal offense was committed. If subsequent to the commission of the offense the law provides for the imposition of a lighter punishment, the guilty person shall benefit therefrom.”
- “Article 25. Right to Judicial Protection. 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”
Note that the above provisions of the Convention do not specifically address the issue of termination of judges. The Commission, however, concluded that the principle of judicial independence was set forth in Article 8 (1) and “represents one of the basic pillars of a democratic system” and that the Inter-American Court of Human Rights had stated that “one of the principal purposes of the separation of public powers is to guarantee the independence of judges.” Thus, “the duty of respecting and ensuring that right [of persons facing prosecution or appearing before courts] has implications that are directly related to the procedures whereby judges are appointed and removed.” Indeed, said the IACHR in this case, it and the Inter-American Court “have repeatedly held that the principle of judicial independence gives rise to a series of guarantees: appropriate appointment procedures, fixed terms in office, and guarantees against external pressure.” Therefore, judges “can be removed from office solely for the commission of disciplinary offences that are previously and clearly set out in the Constitution or domestic law, and in strict compliance with the guarantees of due process.”
As a result, the IACHR recommended that the State of Ecuador (1) reinstate the petitioners in similar positions with the same remuneration, benefits and rank for the period of time remaining in their four year terms or to reasonably indemnify them; (2) pay them their wages and other benefits from the time of termination to the end of their terms; (3) publicize the violations; and (4) adopt measures to assure the independence of the judiciary.
This July 22, 2011, decision was kept confidential while Ecuador considered whether and how to implement these recommendations. However, by November 28, 2011, the IACHR concluded that Ecuador was not going to implement the recommendations. The Commission, therefore, referred the case to the Inter-American Court of Human Rights and asked the Court to order Ecuador to do what the Commission had recommended.
According to the Commission, this case was not just important for Ecuador. The Commission told the Court, this case “will allow [the Court] to establish principles that will contribute to the strengthen[ing] of the independence of the Judiciary in the democracies of the Hemisphere” and will “affect the inter-American public order of human rights.” We now await further proceedings in this case before the Inter-American Court of Human Rights.
Judicial independence is not just an important issue in Ecuador and the rest of Latin America. It is also an issue in the U.S.A. with Newt Gingrich’s outrageous recent suggestion that U.S. federal law enforcement authorities should arrest judges who make controversial rulings in order to compel them to justify their decisions before congressional hearings. It surfaces too in the European Union’s current concern over Hungary’s proposed mandatory early retirement rules to force out judges and allow the government to appoint their replacements.