A general view of the main room in Ecuador's National Court, February 15, 2012.

© 2012 Reuters.

(Washington, DC) – Ecuadorean authorities should conduct a thorough and impartial investigation into credible allegations of political interference in the judiciary, Human Rights Watch said today. Evidence indicates that high-level officials of former President Rafael Correa’s administration and the Council of the Judiciary have interfered in the resolution of cases that touched on government interests, as well as in the appointment and removal of judges.

A constitutional referendum approved in February 2018 gave a Transition Council of Citizen Participation and Social Control, an official body that does not in theory report to any branch of government, the authority to evaluate the performance of key government institutions. On April 4, the new Transition Council opened an investigation that could lead to the removal of the president of the Judiciary Council, a body charged with appointing and removing judges.

“Under Correa, officials pressured and intimidated judges, and fired some who stood up to them,” said José Miguel Vivanco, Americas director at Human Rights Watch. “President Lenín Moreno has insisted he respects judicial independence, but to correct the abusive practices of the past, he should restructure the machinery that allowed for political interference in the judiciary.”

After taking office in May 2017, Moreno said that judges would be free to “make decisions without any pressure whatsoever” and vowed “never to call a judge to influence him.” However, he has also issued a blanket statement of support for Gustavo Jalkh, the Judiciary Council president who took office in 2013 during the previous administration.

Human Rights Watch conducted research in Ecuador in November 2017 to assess levels of judicial independence in the country, as follow-up to a 2014 report documenting how judicial independence had been seriously undermined during Gustavo Jalkh’s tenure, who remains in office. Human Rights Watch interviewed high-level Judiciary Council authorities, current and former judges, Public Defenders’ Office and congressional staff, lawyers, academics, and nongovernmental groups working on these issues.

Human Rights Watch documented a dozen cases in which a judge or a prosecutor said that representatives of the council or the Justice Ministry or Correa’s advisers directly or indirectly suggested how the judge should rule in specific cases. When these judges failed to follow their instructions, the council opened administrative proceedings against them, and in most cases the judges were later suspended or removed. Ecuadorean nongovernmental groups, journalists, and lawmakers have reported dozens of other similar cases.

Other evidence strongly suggesting political interference with the judiciary under Correa includes leaked emails from high-level officials and a 2013 memo from the presidency, ordering judges to reject suits against the government (copy available below).

Ecuador’s Organic Code of the Judicial Function allows the Judiciary Council to suspend or remove justice officials, including judges, for acting with “criminal intent, evident negligence or inexcusable error.” Between 2013 and August 2017, 145 judges were suspended or removed for committing “inexcusable errors,” according to the council.

These laws that allow the removal of judges for legal errors , expose them to political pressure and undermine judicial independence. The correct way to address legal errors is through the appeals process, and never by firing judges. Ecuador should repeal or amend this provision to eliminate the possibility of political interference, Human Rights Watch said.

The arbitrary suspension and removal of judges has not only affected sanctioned judges; it has also had a chilling effect on others, several judges told Human Rights Watch.

Human Rights Watch wrote to the Attorney General’s Office on March 20 asking about any investigations regarding the many allegations of undue interference in the justice system, but has received no response. Human Rights Watch found no evidence of any meaningful efforts by the Attorney General’s Office to investigate the allegations of political interference with the judiciary.

Human Rights Watch will share its findings with the Transition Council and with the Attorney General’s Office.

“The Transition Council needs to carefully analyze all evidence of undue political interference in the judiciary,” Vivanco said. “Meanwhile, the Moreno administration should ensure that any current or former official who abused their power to interfere with the independent functioning of the courts is held accountable, and commit itself to preventing this from happening again.”

For detailed findings, please see below.

Human Rights Watch’s Findings

Political Pressure and Politically Motivated Removal of Judges
Human Rights Watch interviewed 12 people – a prosecutor, a judge, and 10 former judges – who provided accounts of political interference in politically sensitive cases during the Correa administration. In some cases, Human Rights Watch has not identified them by their real names for their protection.

Human Rights Watch also reviewed documentation from several sources – including press accounts and a report by the Ecuadorian human rights groups Observatory of Rights and Justice, Mil Hojas Foundation, Platform for Human Rights, and the Geneva-based organization, International Network for Human Rights – that strongly suggest a pattern of government efforts to pressure or coerce the judiciary in its handling of important or politically sensitive cases during the Correa administration.

Justice officials told Human Rights Watch that they received repeated calls from the Judiciary Council or other government representatives and that, as one said, “If you wanted to keep your job, you had to be obedient.” Those who would act independently and refuse to follow the government’s instructions suffered reprisals, including in several cases being fired. For example:

  • In 2012, Judiciary Council officials visited Judge Carlos Navarro (pseudonym) asking him to rule in favor of the government in a controversial case, Navarro said. Navarro, who was a temporary judge, did not respond to that request and was removed from his post before ruling on the case. He was later appointed to another court but, he said, representatives from the Justice Ministry and the council told him in 2014 that ruling against the government would be “inconvenient” and “would [have] consequences.”
  • José Suing Nagua, of the National Court of Justice, said that an adviser to Jalkh visited him twice in May 2013 to tell him that the government was “interested” in the decision in a case brought by an oil company against the Ecuadorean tax authority that was pending before his chamber. When the chamber ruled in favor of the company, the tax authority’s director publicly accused the judges of depleting the Ecuadorean state’s revenues, and filed a complaint against them before the Judiciary Council. In December 2013, the council removed Suing and the other judge who had signed the ruling, saying that they had not adequately substantiated their ruling and had committed an “inexcusable error” by putting forward arguments that had not been presented by the oil company. The third judge, who dissented, was not removed.
  • In 2016, Judge Juan Machado (pseudonym) was assigned a case via lottery to evaluate allegations of mismanagement by the Judiciary Council. Machado said that a council official told him that they had to meet to discuss the case. When he declined, the council took him off the case and assigned it via lottery to a different judge.

Several former judges also gave detailed accounts of retaliation after they declined to follow the council’s instructions in sensitive cases, including suddenly being assigned an overwhelming workload or deprived of staff or other resources, then fired later for negligence. For example:

  • In October 2015, the Judiciary Council removed Judge Fidel Fernando Rojas Rojas who, as a labor judge, had been assigned a case against a mayor from the ruling party, Rojas said. Before his removal, he said, a council adviser called him and said that the case could undermine “the political image of the revolution.” After he continued gathering evidence on the case, the council limited his staff and access to office supplies, he said. It later opened an investigation against him, contending that he had not been diligent in deciding pending cases, and removed him, he said. Rojas received several documents from the council firing him – one linked to each of the pending cases. On April 9, 2018, he submitted a complaint against Jalkh before the Transition Council.

Human Rights Watch has no perspective on the speed or competence with which any of these judges executed their duties. However, in all these cases and others documented by Human Rights Watch or reported by other credible sources, there is a clear and troubling pattern. When dealing with cases with political connotations, Judiciary Council or government officials have repeatedly approached judges and instructed them to rule in particular ways. When judges refused and ruled independently, they were often removed from their jobs in apparent retaliation.

Two defense lawyers told Human Rights Watch that council members and Interior Ministry representatives were present at judicial hearings on criminal cases brought against indigenous activists who participated in demonstrations against the Correa government. The criminal defense lawyers believe this was to initimidate judges to rule in the government’s favor. Human Rights Watch also interviewed two high profile indigenous activists who faced criminal charges and who felt that the presence of those officials compromised the fairness of their trial.

Evidence of Political Interference in the Judiciary
In August 2017, the website Elements of Power published leaked email exchanges between former President Correa and other high-ranking officials, including his legal secretary, Alexis Mera; Justice Minister Johana Pesántez; Carmen Simone, acting justice minister when Pesántez was away; Gabriela Rivadeneira, National Assembly president; Diego Guarderas, undersecretary of justice; and Jalkh, the Judiciary Council president. These emails, which have since been widely reported in the Ecuadorean media, strongly suggest that under Correa high-level officials attempted to interfere in approximately 20 court cases.

In an email in June 2013, Jalkh sent Correa a note from a personal email account telling him that he had suspended two judges who “were harming the interests of the state” in a case involving a constitutional writ, asserting that the judges’ handling of the case was costing the government US$3 million. Jalkh said that these judges, and another who had granted an habeas corpus request to Álvaro Noboa, an opposition politician, would be removed from office. The judge who ruled in favor of Noboa was removed three days after the leaked email’s date for alleged irregularities in the case, based on official documentation Human Rights Watch reviewed. The only “irregularity” Jalkh identified that the two removed judges had committed was that “through inadmissible constitutional writs they were harming the state in an amount of $3 million.”

Copy of 2013 memo from the Ecuadorian Presidency.

Human Rights Watch also reviewed a copy of what appears to be an official memo from Mera dated October 19, 2013, that orders constitutional and civil judges in Ecuador to reject “constitutional writs against the state,” which are suits brought by individuals contending that their constitutional rights have been violated. The memo also threatens the judges with removal if they do not comply, and says that if the judges do not reject such suits, their cases will be sent to the Judiciary Council, which is charged with reviewing “the judicial function.”

Other emails suggest political interference in the appointment of judges. For example, in October 2011, Simone sent Pesántez a list of candidates being considered, saying that the “majority of dangerous cases” had been “identified.” She attached a chart with the names and a brief political profile of each candidate, marking with red those she considered “dangerous” for not being aligned with Correa’s political party. She included descriptions such as “opposition,” “lawyer from the right,” or “[has made] public statements against the regime.” The Justice Ministry, to which both Simone and Pesantez belonged, had no official role whatsoever in the selection of judges. Nonetheless, these emails show they carried out background checks of candidates’ political positions, quite possibly intending to influence decisions about appointments.

Jalkh claimed that the emails lacked legal value because the accounts had been hacked and said that “the content of those emails can be subject to manipulation,” but he has not denied that he sent or received them. Regardless of whether they would be admissible in court, the emails serve as further proof of a pattern of abusive interference in the judicial system that merits a thorough investigation.

Inexcusable Error
The Judiciary Council has been removing judges applying a vaguely defined provision in the Organic Code of the Judicial Function that forbids judicial officials from acting with “criminal intent, evident negligence or inexcusable error.” Although the terms are not defined by law, council officials told Human Rights Watch that an inexcusable error is “the severe, gross and evident error, which is verifiable in an objective way with a simple comparison of legal rules…It is the notorious incompetence or carelessness at the time of applying justice.”

In October 2017, Jalkh and the National Court of Justice president submitted a proposal to the National Assembly to adopt a legal definition of inexcusable error and to include a public hearing in the process so that judges being investigated can defend themselves.

But this proposal does not resolve the problem, which is that legal errors should not be grounds for removing judges, but instead should be handled through the appeals process. As stated under the United Nations Basic Principles on the Independence of the Judiciary, judges should be subject to suspension or removal “only for reasons of incapacity or behavior that renders them unfit to discharge their duties.” The UN Human Rights Committee has correctly noted that provisions allowing removal of judges because of legal errors tend to “expose judges to political pressure and jeapordize their independence and neutrality.” This is precisely how this provision seems to have been used in Ecuador.

The absurdity of the current system is evident in cases in which the council has sanctioned judges for an alleged inexcusable error that has been or is later ratified on appeal. For example, the council removed Judge Madeline Pinargote in September 2015 after finding an inexcusable error in a judicial decision through which she lifted some precautionary measures imposed on the assets of a company. However, a year earlier, an appeals court had unanimously supported her decision, based on judicial documents Human Rights Watch reviewed.

In other cases, these broad powers have allowed the council to apply a harsher sentence to one member of a three-member tribunal, even if they had all adopted the same decision that the council believed was issued in “negligence,” or included an “inexcusable error.” In these cases, the council contended that the judge who drafted the ruling had greater responsibility than the others. For example, Judge María Jacome was fired in April 2017 after overturning a council decision to suspend a judge in Sucumbíos province. Jacome and the other judges ruled that the judge’s suspension violated his rights, but only Jacome was fired.

According to information provided by the council to Human Rights Watch, there has been a steady decline in the number of judges removed for “inexcusable error” between 2013, when 61 were removed, and August 2017, when 5 had been removed since the year began. A total of 145 were removed over this 5-year period.

Lack of Accountability
The Transition Council’s administrative investigation of the Judiciary Council is in its initial stages. The Transition Council has requested the Judiciary Council to suspend all appointments of judicial officials during the investigation.

An attempt by opposition legislators to impeach Jalkh did not succeed. On April 18, 2018, lawmakers from different political parties requested the National Assembly to initiate the investigation to impeach Jalkh and other members of the the Judiciary Council.

Through dozens of interviews and a thorough review of media coverage, Human Rights Watch found no evidence of any meaningful efforts by the Attorney General’s Office to investigate allegations of coercion and political interference such as those described above.

Dozens of judges who claim to have been arbitrarily removed from office have filed a case before the Attorney General’s Office, contending that council officials were responsible for influence peddling, which is defined in Ecuador’s Criminal Code as actions taken by public officials or people representing the State who “tak[e] advantage of their powers” to “influence another public official to obtain a resolution favorable to their interests or those of a third party.” The Attorney General’s Office closed the case stating that the alleged facts do not constitute crimes, media reports said.

A lawyer told Human Rights Watch that he and several other lawyers had brought a similar case against Jalkh before the Attorney General’s Office but was unaware of any meaningful steps taken in these investigations.

The Ecuadorean Constitution and Criminal Code empower prosecutors, when there is evidence that a crime was committed, to open investigations even if the victim does not file a formal complaint. In February, the Attorney General’s Office began gathering information on allegations involving Jalkh’s participation in cases of alleged political interference, but it later publicly clarified that such measures did not mean an investigation had been opened against him, according to official sources.

On March 20, Human Rights Watch sent a letter to the Attorney General’s Office requesting detailed information on existing investigations into allegations of political interference in the judiciary, including on the issues addressed in this publication, but received no response.

Ecuador’s Obligations Under International Law
Ecuador is party to several human rights treaties – 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. The UN Human Rights Committee, which monitors the implementation of the ICCPR by state parties, has held that for a tribunal to be “independent and impartial,” the executive must not be able to control or direct the judiciary.

A range of authoritative principles – including the UN Basic Principles on the Independence of the Judiciary, the Universal Charter of the Judge, and the Statute of the Ibero-American Judge – set forth key components of an independent and impartial judiciary. These criteria include that judges should be free from constraints, pressures, or orders imposed by other branches of government, and they should have security of tenure to avoid fear of being removed from their posts for their decisions. In addition, proper training and qualifications should be the basis of the appointments of judges, and they may only be suspended or removed “for reasons of incapacity or behaviour that renders them unfit to discharge their duties.”