Letter on Judicial Independence in Ecuador

Washington, DC, January 29, 2014

Dr. Gustavo Jalkh

President of the Council of the Judiciary
Council of the Judiciary
Quito – ECUADOR

Dear Dr. Jalkh,

I am writing on behalf of Human Rights Watch to express our concern regarding the ongoing judicial reform process in Ecuador, which poses a very serious threat to judicial independence in the country. Based on the considerations outlined below, we respectfully urge you to adopt the recommendations listed at the end of this letter to ensure that Ecuador complies with international standards on judicial independence.

As you know, corruption, inefficiency, and political influence have plagued Ecuador’s judiciary for years. With a popular mandate following a 2011 referendum, the administration of President Rafael Correa initiated an ambitious judicial reform process to address these chronic problems.[1] The referendum provided for the creation of a three-member Transitional Council of the Judiciary, with powers to overhaul the judiciary during 18 months, and the subsequent appointment of a new five-member permanent Council of the Judiciary, which you preside, that took office in January 2013.[2]

As part of this process to strengthen the judiciary, the Council of the Judiciary has adopted some positive steps, such as inaugurating over 30 new buildings that house courts and judicial offices all over the country, and developing an electronic system of appointments to speed up judicial cases, and provided training courses to over 18,000 judicial officials.[3] According to official sources, the Ecuadorian justice system now operates more quickly, and the number of judges per 100,000 people increased from 4.5 to 10 during this time.[4]

However, as described below, the Council of the Judiciary has also overhauled the composition of the judiciary by appointing and removing hundreds of judges, including all magistrates of the National Court of Justice, through highly questionable mechanisms that we believe severely undermine judicial independence in the country.

Ecuador is party to human rights conventions—including the International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights—that require it to safeguard the independence and impartiality of its judiciary.^[5] In Human Rights Watch’s view, these obligations are not met by the current reform process.

New National Court of Justice

In 2012, the Transitional Council of the Judiciary appointed all 21 members of Ecuador’s highest court, the National Court of Justice, as well as all its substitute judges (suplentes),[6] through mechanisms that lack the objectivity and transparency provided for in international standards on judicial independence, as discussed below.

In some cases, the council failed to score correctly certain stages of the selection process. For example, the rules for the appointments required each candidate to have a minimum of 10 years of work experience and stated that they could obtain 2 points for each additional year of work experience.[7] Nonetheless, according to an international commission made up of government-invited observers from Argentina, Brazil, Chile, Guatemala, Mexico, and Spain, one candidate –who was eventually appointed to the National Court of Justice– with 10 years and six months of work experience obtained 6 points at this stage.[8] Another one did not provide sufficient documentation to show that he fulfilled the minimum requirement of 10 years of work experience but was nonetheless appointed to the court.[9] Similarly, another candidate received 33 points (out of a maximum of 30) in another stage of the appointment process.[10]

In addition, the hearing before the Transitional Council of the Judiciary granted council members excessive influence in the final decision regarding the appointments. Council members could give candidates up to 10 points (out of 100) for their performance during the interview, and were not required to justify the scores they gave.

According to the international observers, this mechanism, which can lead to arbitrary decisions, contributed “in some cases to leaving out candidates who were clearly in a better position in the entire previous process.”[11] The observers documented that there was inconsistency when allotting the 10 points to different candidates, and described a case in which they were “unable to determine the criteria” that justified appointing one judge who was in position 45 before the hearing and not appointing another one who was previously in position 12.[12]

These appointments do not meet international standards for the appointment of judges. While international law does not set down a single procedure for judicial appointments, the appointment of judges is to be conducted in a clear and objective manner, taking into account solely the candidates’ qualifications. The UN Basic Principles on the Independence of the Judiciary state that “[a]ny method of judicial selection shall safeguard against judicial appointments for improper motives.”^[13]  The Universal Charter of the Judge similarly states that, “[t]he selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification.”^[14]

These criticisms notwithstanding, representatives from the Council of the Judiciary told Human Rights Watch in October 2013 that, “for the Council [of the Judiciary] the appointment process and the [National] Court [of Justice] are legitimate.”[15] Consequently, judges who were appointed through a procedure that, as explained in this letter, does not meet international standards, remain in office in the highest court of justice in the country.

Impact on Lower Court Judges

In addition, the Council of the Judiciary has overhauled the entire judiciary by appointing, suspending, and removing hundreds of lower court judges all over the country.

The Ecuadorian Constitution grants the Council of the Judiciary the power to “carry out processes to select judges and other judicial officials, as well as their evaluation, promotions, and sanctions.”[16] The council may also suspend a judge for up to 90 days during the investigation in “serious and urgent cases.”[17] Decisions adopted by council directors in the provinces or by the council’s general director may be appealed before the Council of the Judiciary, which adopts final decisions that are only subject to judicial review (by judges who could, in turn, be sanctioned by the council).[18]

According to official information provided by the Council of the Judiciary to Human Rights Watch, during the 18 months of the Transitional Council of the Judiciary, its members appointed 616 judges, suspended 182, and removed 244. Between January and November 2013, the permanent Council of the Judiciary appointed 814 judges, suspended 91, and removed 136. The total number of judges in office increased from 1,117 in July 2011, when the justice reform began, to 1,708 by November 2013.[19]

In the majority of removals, the Council of the Judiciary considered that the judges had violated a vaguely worded article in the Organic Code of the Judicial Function that forbids judicial officials to act with “criminal intent, evident negligence or inexcusable error.”[20] Of the 244 judges removed by the Transitional Council of the Judiciary, 132 were removed for violating this article; and of the 136 judges removed between January and November 2013, 88 were removed for this reason.[21]

The international observers invited by the government reported that the norms regulating inexcusable error “can hide disciplinary actions that are authentic jurisdictional revisions” and that the preventive measures to suspend judges “sometimes become entirely discretionary acts, particularly when they derive from the administrative revision of a judicial decision, and ... could hide what is really the interpretation of a norm within the freedom of interpretation that any judge should have.” The observers urged the passage of a law to regulate disciplinary procedures, defining faults clearly in order to avoid the risk of judges being suspended or punished simply for exercising their duties.[22]

These removals become even more problematic in light of a memorandum by the Unit of Disciplinary Control of the Council of the Judiciary of July 2012, which warns judges that they may be sanctioned if they erroneously rule against the government. According to the memorandum, the council had repeatedly sanctioned “judges who have ruled in favor of constitutional challenges against administrative acts [in cases in which] the claims were related to issues of mere legality and could be challenged [through other judicial channels].” The memorandum requests provincial directors of the council to “let judges know” about these findings so they “adopt the necessary measures to correct” their behavior “to avoid administrative sanctions” in the future.[23]

Under international legal standards, judges may only be suspended or removed from their position “for reasons of incapacity or behaviour that renders them unfit to discharge their duties” and they have the right to a fair hearing.^[24] According to the UN Human Rights Committee, which provides authoritative guidance on the ICCPR, “[j]udges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law” (emphasis added).^[25] Similarly, the Human Rights Council has stated that, “grounds for removal must be explicit with well-defined circumstances provided by law.”[26]

On this matter, the UN Special Rapporteur on the Independence of Judges and Lawyers has specifically said that judges should not be removed from office for errors in judicial decisions and that legislation should give “detailed guidance on the infractions by judges triggering disciplinary measures, including the gravity of the infraction which determines the kind of disciplinary measure.”[27]

Correa's Statements and Composition of the Council of the Judiciary

When President Correa launched his justice reform initiative, he made public statements that further undermined the credibility of the judiciary as an independent branch of government. He said that people “will say we want to get our hands on the courts. Yes, we want to get our hands [on them]. For the sake of the Ecuadorian people!”[28] Given that his comments raised reasonable concerns regarding a possible interference with judicial independence, Correa was forced to clarify that he meant he was getting his hands on “injustice” and the Ecuadorian people would vote in favor of his reform if they believed that, “there is a corrupt justice [system] that destroys the country and, if it is not improved, there will be no future for this country.”[29]

The overhaul of the judiciary was carried out by former government officials who, with one exception, served under President Correa. Two out of three members of the Transitional Council of the Judiciary[30] and all five members of the current Council of the Judiciary previously served as government officials during Correa’s presidency.[31]

These appointments, together with Correa’s statements, run counter the Bangalore Principles of Judicial Conduct, which state that, “[a] judge shall not only be free from inappropriate connections with, and influence by, the executive and legislative branches of government, but must also appear to a reasonable observer to be free there from” (emphasis added).[32]

Based on the above-mentioned considerations, it is critically important that the Council of the Judiciary that you preside adopts measures to ensure that Ecuador complies with international standards on judicial independence. To do so, we respectfully urge you to:

• Implement the recommendations regarding the appointment and removal of judges, made by the government-appointed international observers, that your office has powers to implement directly; and
• Work with the Foreign Affairs Ministry to invite the UN Special Rapporteur on the Independence of Judges and Lawyers to visit the country to assess the situation of judicial independence in Ecuador.

Sincerely,

José Miguel Vivanco