UNITED NATIONS EXPERT CONCLUDES
SECOND MISSION TO ECUADOR
21 July 2005
The Special Rapporteur on the independence of judges and lawyers of the United Nations Commission on Human Rights, Leandro Despouy, undertook a one-week visit to Ecuador from 11 to 15 July. The following note is a translated summary of his preliminary observations on the mission originally distributed in Quito on 15 July:
The Special Rapporteur thanked the Government and all the authorities and sectors of the civil society that cooperated very openly in making the visit possible and for having provided valuable information, as well as the United Nations Office of the High Commissioner for Human Rights and the United Nations Development Programme for their precious assistance.
The Special Rapporteur met with the President and the Vice President of the Republic and other authorities from the Executive; the President of the National Congress and members of the different political parties; members of the Supreme Electoral Tribunal, the National Council for the Judiciary and the Constitutional Tribunal; the Mayors of Quito and Guayaquil; the members of the Selection Committee, non-governmental organizations, international organizations, lawyers, diplomats and the media.
These are his preliminary observations and recommendations:
a) regarding the Selection Committee of the Supreme Court of Justice, the Special Rapporteur observed that Congress failed to re-establish the Supreme Court which was illegally dismissed on 24 December 2004. Rather, a law was adopted by Congress (published in the Registry office on 26 May 2005) which approved the rules of procedure of the Committee for the qualification and appointment of the judges of the new Supreme Court.
b) the Selection Committee adopted a Decree which governs the procedure of the notification, qualification and rebuttal process for the final appointment of the new judges of the Supreme Court of Justice. The Special Rapporteur observed that both the law and the Decree contain a number of provisions which violate some Constitutional principles and international norms, in particular UN Basic Principles on the Role of Lawyers. This restriction affects potential judicial candidates who have practiced on behalf of the defence on certain causes against the State and could violate the free practice of the legal profession and the right of defence including principles such as non-discrimination and non identification of lawyers with their clients. During the meeting with the Selection Committee, the members informed the Special Rapporteur of their willingness to improve and rectify the deficiencies in the law and in the Decree which may be in breach of the Constitution and international human rights treaties. The Special Rapporteur indicated that it is important that the Committee add a clause in order to recognize and acknowledge the supremacy of the Constitution and the hierarchy of the international treaties. The Special Rapporteur stated as well the importance of recognizing the principles related to gender equity and equality between men and women especially regarding Article 102 of the Constitution which refers to the participation of women in the administration of justice.
c) regarding the process: the qualification and appointment of the future members of the court is the sole responsibility of Ecuador. However, the law invites the United Nations to have an observer status regarding the functioning of the court system. This suggestion is supported by the majority of actors who were consulted, hence the Special Rapporteur has requested that the United Nations undertake this activity on a permanent basis. Also the Special Rapporteur has promoted the presence of the international organizations which have worldwide prestige and which specialize in judicial matters, like the International Associations of Judges (IAJ-UIM).
d) regarding the Constitutional Court: the Special Rapporteur stated that the National Congress has adopted a similar decision to the one adopted with regard to the Supreme Court of Justice, which was dismissed at the end of 2004. The Special Rapporteur is still concerned that the Constitutional Court is yet to be established.
e) regarding the Electoral Supreme Court: The Special Rapporteur stated that the Electoral Supreme Court was re-composed. The Electoral Supreme Court is perceived more like a political organ than a court which gives electoral justice. The appointed members recognize the need to promote institutional reform regarding this court.
The Special Rapporteur stated that at this time in the history of Ecuador it is important that all actors and sectors be concerned about the resolution of this critical subject, the Supreme Court of Justice, as it is in the interest of democracy and will show the beginning of the institutional reconstruction and a step away from the events which took place between November 2004 and April of this year. In this regard, the Special Rapporteur hopes to be able to inform the General Assembly of the United Nations this October that the country has taken important steps on the full re-establishment of the rule of law and the reconstruction of the institutional framework and, in particular, in the integration of the high courts.
The Special Rapporteur will continue to monitor the judicial situation and the high courts and he expressed his interest in visiting Ecuador again before the presentation of his report to the sixtieth session of the General Assembly this autumn.