Chapter VII (Arts. 102-106) of the General Organic Code of Proceedings regulates the procedure to be followed in the case of homologation of foreign judgments, arbitration awards and mediation proceedings.
To this effect, the procedural rules determine that the competence regarding the knowledge and validation of what has been resolved in foreign territory will correspond to the Specialized Chamber of the Provincial Court of the domicile of the requested party. Regarding the execution of the judgment, that is, after the recognition of the foreign judgment, it will correspond to the first level judge, whose competence will be based on the domicile of the defendant.
In this context, the content of Article 104 of the COGEP acquires notable relevance, since it lists the indispensable requirements for the document issued abroad to have notoriety in the Ecuadorian sphere.
Thus, prima facie it is found that the document must meet all the formalities that prove that it was issued in the country of origin; furthermore, in other words, the foreign judgment, arbitration award or mediation act must be final, i.e., there must not be any pending appeal that could alter the decision, for which it is required to certify that the judgment has the effect of res judicata.
It should be noted that the comprehensibility of the text in our own language is essential, so a certified translation must be provided in the case of a language other than our own.
Finally, it must be proven that the defendant or respondent was legally summoned to the process generating the judgment, and that it was able to exercise its right to defense and contradiction, in order to safeguard the right to due process and the basic guarantees that compose it, and it must be pointed out that the recognition of a foreign judgment does not restrict the obligation to ensure, within our judicial system, that the constitutional postulates are complied with.
In addition to this brief preface, it should be emphasized that the homologation is an international legal procedure for the recognition of foreign judgments, provided that they have been issued by competent judicial authorities of the requesting State to ensure legal certainty or res judicata. The homologation or exequatur may be requested by the person or persons in whose favor said judgment was issued and who want it to be complied with, for which the administrators of justice must guarantee and safeguard under the Principle of International Regularity of the judgments, that there is compatibility between the judgment and the Ecuadorian legislation, that is, that it is not contrary to the Constitution and the laws in accordance with Art. 417 of the Constitution, Art. 2 of the Inter-American Convention on Extraterritorial Effectiveness of Judgments and Arbitral Awards of 1979, ratified by Ecuador, and Art. 423 of the Code of Private International Law Sanchez de Bustamante.
On the right to identity.
In the context of Family Law, the Specialized Court of Family, Children, Adolescents and Adolescent Offenders of the Provincial Court of Justice of Guayas took cognizance of the process signed with No. 09141-021-00011, a sui generis petition, due to the fact that it was a petition for recognition of a foreign judgment in which an adoption petition was resolved.
The particularity of the case is that the adoptee was twenty-three (23) years old at the date of the request for homologation, a reality that according to the provisions of Article 157 of the Code of Childhood and Adolescence made such homologation inadmissible, since the final paragraph of the article in question prohibits the adoption of persons over twenty-one (21) years of age.
Accordingly, Article 46 of the Organic Law on Identity and Civil Data Management, as applicable, provides:
“For the inscription and registration of an adoption made abroad by Ecuadorian persons or permanent residents in Ecuador, the homologated judgment of the adoption or the resolution of the administrative act will be required when it corresponds according to the laws of the country in which the adoption was made as long as it does not contravene the provisions of Ecuadorian legislation.”
Notwithstanding the legal limitations set forth in the preceding paragraph, the court's analysis weighed the applicant's right to identity, echoing the ruling of the Inter-American Court of Human Rights, which in its judgment of February 24, 2010, in the Gelman v. Uruguay case, regarding the right to identity, determined that:
«(...) it can be conceptualized, in general, as the set of attributes and characteristics that allow the individualization of the person in society, and in this sense it includes several other rights depending on the subject of rights in question and the circumstances of the case.»In the same sense, the same Court has expressed that: “although identity is of special importance during childhood, since it is essential for the development of the person, the truth is that the right to identity is not a right exclusive to children, since it is in constant development and the interest of individuals in conserving their identity and preserving it does not diminish with the passing of the years”.
In addition to the above, in the ruling ut supra, the criterion issued by the National Court of Justice in judgment No. 09141-2018-00102, which reads as follows:
“The domestic legal framework provided by our Constitution guarantees to all persons without age limit the right to personal and collective identity, and other related rights to which we have referred in the preceding recital. In this regulation, the importance of this right is emphasized as an attribute of the legal personality of an individual, that is to say, to have a name and surname, to know his family origin; the possibility of obtaining through legal means the placement in a family different from the biological one; as well as the need to preserve, develop and strengthen the material and immaterial characteristics that converge in this right, and the duty of the State to procure its full exercise, attending to the principles of application, whose prevalence has to be evaluated or weighed, in contrast with the limitations or restrictions that may be opposed against its exercise.”
By way of conclusion, it is noted that the analysis regarding the homologation of a foreign judgment in an adoption case transcended to the constitutional sphere, understanding that the right to identity, as many other rights of constitutional rank, implies the prevalence of those constitutional principles, also known as theoretical norms, among them the principle of direct and immediate application of the Constitution and of constitutional supremacy; in addition, the “pro homine” principle contained in Art. 11 numeral 5 of the Constitution, which provides: “In matters of constitutional rights and guarantees, public servants, administrative or judicial, shall apply the norm and interpretation that most favor their effective enforcement.”
Ab. Lenin Zeballos Martinez
Teacher
the constitutional interpretation is not the right one since it infringes on the national sovereignty and the sovereignty of the courts, since everyone should be judged by their natural judges, this is against our judges.