The review sentence No. 12-23-JC/24 and accumulated, issued by the Constitutional Court of Ecuador on February 28, 2024, by Judge Jhoel Escudero, contains several aspects that deserve to be highlighted. The first of these is undoubtedly its contribution to justice and reparation for the victims, both of femicide and of other crimes sentenced in a timely manner by the justice system. On the other hand, beyond the important clarifications and expansion of certain precedents on jurisdictional guarantees, another of its most significant contributions is to highlight the underlying problem, the culture of non-compliance and disrespect for legal norms that prevails in the country.
These behaviors of non-compliance or manipulation of the rules based on misnamed “interpretations” deserve to be qualified as what they are: corrupt practices that have a direct impact on citizens“ trust, mainly in their institutions and in this case in the judicial system. Trust that is easy to destroy and so difficult to rebuild. This lacerating social impact, which is a consequence of the violation of legal norms, is recognized by the Court in paragraph 50 of its judgment: ”These conducts of the petitioners and the judges cause serious damage to the justice system and to the very structure of the constitutional State, sacrifice the confidence of the citizenry in justice and cast doubt on the knowledge of the law of the judges who decide this type of cases". In other words, the improper actions, lacking ethics and integrity of certain judges and trial lawyers, once again (as already happened in the Metastasis case) end up compromising justice and the democratic system.
Thus, the decision under analysis clearly shows that the problem of the denaturalization of the guarantees, specifically of the autonomous precautionary measure, both in terms of its nature, assumptions and the scope that a decision on the matter may generate, does not necessarily originate in the lack of normative regulation or in the absence of normative provisions. The real problem arises from the deliberate disobedience or manipulation of such rules by those who make use of the system. Unfortunately, as shown by the cases selected by the Court, and which gave rise to this judgment, this type of actions came from certain individuals who present themselves to society as “legal professionals”.
In this order of ideas, it is inaccurate to state that after this decision the Constitutional Court restricted the use of precautionary measures to persons deprived of liberty who seek to interrupt criminal proceedings and illegitimately recover their liberty or that there was no regulation for the granting of inter comunis effects through decisions in the area of guarantees. The inadmissibility of the autonomous precautionary measures when it comes to the execution of judicial orders was already regulated normatively prior to this decision, both in constitutional norms (a conclusion that we would reach from a systematic interpretation of the Constitution as the one imposed by its article 427 and that would avoid the juxtaposition between jurisdictional guarantees), jurisprudential (precedents issued by the Constitutional Court itself) and legal (article 27 of the Organic Law of Jurisdictional Guarantees and Constitutional Control). Regarding the jurisprudential development in the aforementioned matters, it is sufficient to look at the quotations and recounting (analogy) that the Court makes as footnotes when it develops and builds its arguments.
Despite the clarity of these regulations, and given the state of non-compliance evidenced in the selected cases, it was necessary for the Court, through this ruling, to further clarify the pre-existing regulations, so that the “interpretations” of certain “legal professionals”, whether lawyers or judges, do not distort the guarantee in the future and thus threaten the system.
By the way, moving away for a moment from the center of the discussion, and for those of us who are interested in the study of the schools of legal thought, the bad example of certain judges and lawyers whose conduct is evidenced in this judgment, has caused legal formalism to gain strength -again- in the Ecuadorian legal system. Jurisprudence, theoretically assumed as a sociological and dynamic source of law, faces an evident process of formalization.
The mere existence of jurisprudential rules (which are not usual in the jurisprudential line of this line of the CC), the indistinct treatment between precedent and norm with erga omnes scope, the imperative and to a certain extent conclusive language used in precedents in the strict sense, gradually closes spaces for active or dynamic interpretation. Surely this is also due to a cultural issue linked to legal education in our country.
Now, retaking the analysis, and focusing on the most relevant aspect of the sentence, we should all be alarmed that the closing Court of the Ecuadorian constitutional system identifies and expresses its concern for the cause that has originated the denaturalization and abuse of the guarantees, the lack of ethics and transparency on the part of certain legal professionals. This proves that no rule, regardless of its origin or linguistic precision, can have a positive impact on society if the culture of non-compliance and manipulation of them persists. This sentence should raise awareness about the evil we are facing, it is a cultural problem that, consequently, requires a deep treatment of the same type: education in the Culture of Legality. We need to jointly promote a culture of voluntary compliance with the rules, of the good use of the same, mainly because of the social impact of their non-observance. It is a matter of socially and peacefully condemning these corrupt practices, beyond the sanction or supervision that they undoubtedly deserve, at least while we progressively deconstruct the culture of non-compliance that prevails in the country.
While punishment is necessary to condemn these actions and prevent their repetition, we should also be concerned about promoting public recognition of good professionals, lawyers and judges, those who act well, for the benefit of the system and society (even if we assume that it is their obligation). This will surely generate an incentive for others, encourage them to transform their practices, change their habits and become promoters and defenders of the judicial system.
It is therefore relevant to delve into the meaning and scope of the measure ordered by the Court in paragraph 9 of the operative part of its judgment. This measure marks the beginning of what must become a judicial policy rooted in the Culture of Legality. To this effect, we must encourage that it is maintained over time, it must be evaluated and mainly strengthened from the involvement of all social actors. The measure should not be limited to training, nor should it be limited to the control bodies of the codes of ethics, such as the Judicial Function through the School of the Judicial Function and the bar associations (by the way, the Center for Studies and Dissemination of Constitutional Law of the Constitutional Court should also make this its main task, to contribute to the construction of the Culture of Legality), we must encourage the participation of academia, the media, the private sector in general. The goal will be to make ethics a way of life; it will be the only way to prevent and fight against corrupt practices that have led to public distrust in the judicial system.
Director of the UEES Graduate School of Law.
Doctor in Law, PhD, Master in Law, mention in Constitutional Law. Superior Diploma in Law with mention in Constitutional Law. His career includes technical-constitutional advisory positions in public and private entities. Among them the former Constitutional Tribunal and Constitutional Court of Ecuador. Research professor at several international universities. Distinguished Senior Research Fellow at the Constitutional Studies Program, University of Texas at Austin. Founding member and member of the Executive Committee of ICON-S, Ecuador chapter. Board Member of BeLatin, Initiative of the University of California, Berkeley, for Latin America. Co-director of the Legal Thought and Constitutional Theory Series. Editorial Derecho Global - Mexico.
Author of books and articles in national and international indexed journals. His research interests focus on constitutional law, constitutional procedural law, comparative law, legal theory and legal transplants. Arbitrator of the Arbitration and Mediation Center UEES. Currently director and full time professor of the UEES Graduate School of Law.
Universidad Espíritu Santo (UEES), began its academic activities in 1994 as a private, self-financed, non-profit institution. Its spirit of commitment and constant innovation are present in the quality of the service it offers to its community.
