Ecuador: Ensure Judicial Independence

The judicial reform process in Ecuador poses a very serious threat to the country's judicial independence, Human Rights Watch said today in a letter to Gustavo Jalkh, president of the Council of the Judiciary.

Since 2011, a judicial council made up almost entirely of former members of the administration of President Rafael Correa has appointed and removed hundreds of judges through highly questionable methods.

"The government's reform of Ecuador's judiciary should have resulted in a stronger and more independent judicial system," said José Miguel Vivanco, Americas director at Human Rights Watch. "So far, the reform is doing precisely the opposite."

The Correa administration, acting on a 2011 referendum mandating reform of the constitution, initiated an ambitious judicial reform process to address chronic problems in Ecuador's judiciary, including corruption, inefficiency, and political influence.

The Council of the Judiciary was established in January 2013. Previously, a transitional council was in charge of overseeing the reform.

The transitional council and the current Council of the Judiciary have appointed 1,430 judges, suspended 273, and removed 380 between July 2011, when the justice reform began, and November 2013, according to official information from the council. During this time, the total number of judges in office increased from 1,117 to 1,708.

In the majority of removals, the councils considered that the judges had violated a vaguely worded article in the Organic Code of the Judicial Function, a law governing the judiciary, that forbids judicial officials to act with "criminal intent, evident negligence or inexcusable error."

Under international legal standards, however, judges may only be suspended or removed from their position "for reasons of incapacity or behaviour that renders them unfit to discharge their duties." The United Nations 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.

In addition, in 2012, the transitional council appointed all 21 members of Ecuador's highest court, the National Court of Justice, as well as all its substitute judges (suplentes), through mechanisms that lack the objectivity and transparency required under international standards on judicial independence. All these judges remain in office.

The government created an international body made up of members from Argentina, Brazil, Chile, Guatemala, Mexico, and Spain to evaluate the judicial reform process. In a final report issued in December 2012, the government-invited observers criticized the article used to fire judges, as well as the selection of members of the National Court of Justice.

The Council of the Judiciary, as a valuable part of this process, has inaugurated over 30 new buildings to house courts and judicial offices all over the country. It has also developed an electronic system to speed up judicial cases and trained thousands of justice officials. According to official sources, the number of judges per 100,000 people increased from 4.5 to 10 during this time.

Ecuador is party to human rights conventions-including the International Covenant on Civil and Political Rights and the American Convention on Human Rights-that require it to safeguard the independence and impartiality of its judiciary. These obligations are not being met by the current reform process, Human Rights Watch said.

It is critically important for justice and the rule of law for the Council of the Judiciary to adopt measures to ensure that the Ecuadorian government complies with international standards on judicial independence, Human Rights Watch said. Specifically, it should:

Implement recommendations regarding the appointment and removal of judges made by government-appointed international observers; 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 judicial independence in Ecuador.

"Improving the physical infrastructure of the justice system is a worthwhile investment, but far more important than building new courthouses is ensuring the strength and independence of the institution itself," Vivanco said.