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Integrity Scorecard

2007 Assessment

Ecuador: Integrity Indicators Scorecard

Ecuador: Integrity Scorecard Report > Sub-Category: Judicial Accountability
Indicators		Score
33	Are judges appointed fairly?	92
34	Can members of the judiciary be held accountable for their actions?	75
35	Are there regulations governing conflicts of interest for the national-level judiciary?	46
36	Can citizens access the asset disclosure records of members of the national-level judiciary?	67

Indicator and sub-Indicator Details

Are judges appointed fairly?

33a: In law, there is a transparent procedure for selecting national-level judges.

Score:

YES

Comments: Article 201 and 204 of the National Constitution indicate the requirements to be a magistrate of the Court of Supreme Justice (CSJ--Corte Suprema de Justicia).

The Resolution of the Consejo Nacional de la Judicatura (CNJ), settles the steps and requirements necessary in the process of selection in order for it to be transparent

References: National Constitution: Article 201 and 204

Resolución de Consejo Nacional de la Judicatura (CNJ) publicada en el Registro Oficial 345 de 2006/08/30.

33b: In practice, there are certain professional criteria required for the selection of national-level judges.

Score:

100

Comments: The judges must enter in a competitive selection process. For example, articles eight and nine of the "Instructivo para el Concurso de Merecimientos y Oposición para Integrar la Terna de Ministro Fiscal General del Estado," delineate how to choose the head of the Public Prosecutor's Office.

In May of the last year, the Supreme Court arranged that the judiciary must be reconstructed. The objective of this resolution was to remove 1.400 judicial employees who were working in prorogued functions and to designate replacements through public contests.

Although the "Consejo Nacional de la Judicatura" (CNJ) was delayed for more than a year carrying out a contest of merits and opposition, in which 209 interested judges participated, just 138 were selected. The court hopes that the next phases will going take less than a year.

References: [ LINK ] 2007/04/22 211 vacantes en la Fiscalía General.

[ LINK ] 2007/05/18 Correa da un espaldarazo a la Corte y compromete su ayuda

[ LINK ] 2007/06/25 La reestructuración judicial culmina en su primera fase

2007/06/07 www.hoy.com.ec En promedio, nuevos jueces tuvieron notas de 74 sobre 100.

2007/06/07 www.hoy.com.ec La probidad será la clave para elegir a ministros de cortes.

(2007/05/07 www.hoy.com.ec CNJ Alista Segunda Convocatoria).

Peer Review Comments: In practice, the criteria to select national level judges are strongly influenced by political interests. A better information source would be the Civic Commission of Corruption Control (CCCC Comisión de Control Cívico de la Corrupción).

33c: In law, there is a confirmation process for national-level judges (i.e. conducted by the legislature or an independent body).

Score:

YES

Comments: The National Council of the Judiciary (CNJ--Consejo Nacional de la Judicatura) is the disciplinary office of the judiciary. The law determines its integration, the form of designation of its members, its structure and its functions. The administrative, economic and financial management of the judiciary should carry out in de-concentrated form.

References: National Constitution: Article 198 CN (de los órganos de la función judicial); Article 199 CN (de la independencia de la función judicial); and Article 206.

Can members of the judiciary be held accountable for their actions?

34a: In law, members of the national-level judiciary are obliged to give reasons for their decisions.

Score:

YES

Comments: The resolutions must contain complete foundations.

References: National Constitution: Article 24 No. 13 CN

34b: In practice, members of the national-level judiciary give reasons for their decisions.

Score:

100

Comments: The problem is not the lack of reasons that can have been given by the judges; the greater problem is the credibility of their decisions. According to the study Auditoría para la Democracia: Ecuador 2006, the confidence in the ability of the Ecuadorian legal system in guaranteeing a right judgment is insignificant.

References: [ LINK ] 200/02/09 Poca confianza en los tribunales.

www.elmercurio.com.ec 2007/06/27 Detenidos sin sentencia.

34c: In law, there is a disciplinary agency (or equivalent mechanism) for the national-level judicial system.

Score:

YES

Comments: The National Council of the Judiciary is the disciplinary body of the judiciary. This agency sanctions administratively.

References: National Constitution: Article 206 Article 1 Ley Orgánica del Consejo Nacional de la Judicatura.

34d: In law, the judicial disciplinary agency (or equivalent mechanism) is protected from political interference.

Score:

YES

Comments: The National Council of the Judiciary (CNJ--Consejo Nacional de la Judicatura)is the administrative and disciplinary agency of the judiciary.

In the confirmation process of the members of the CNJ there is a participation by the Supreme Court, sub national courts, the faculties of law, and the judicial associations. It is an internal process of the judiciary.

References: Article 1 Ley Orgánica del Consejo Nacional de la Judicatura. Article 2 Ley Orgánica del Consejo Nacional de la Judicatura.(de la conformación)

34e: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) initiates investigations.

Score:

100

$Scoring Criteria :: 100 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) aggressively starts investigations -- or participates fully with cooperating agencies\' investigations -- into judicial misconduct. The judicial disciplinary agency (or equivalent mechanism) is fair in its application of this power. <p>50 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) will start or cooperate in investigations, but often relies on external pressure to set priorities, or has limited effectiveness when investigating. The judicial disciplinary agency (or equivalent mechanism), though limited in effectiveness, is still fair in its application of power. <p>0 Score Criteria: The judicial disciplinary agency (or equivalent mechanism) rarely investigates on its own or cooperates in other agencies\' investigations, or the judicial disciplinary agency (or equivalent mechanism) is partisan in its application of this power.$

Comments: The National Council of the Judiciary (CNJ-- Consejo Nacional de la Judicatura) has launched several investigations in civil and penal branches; the objective was to determine if the judges were acting in accordance with the law. Nevertheless it is possible to observe that this body has limitations in the effectiveness of its investigations.

The CNJ, through a specialized commission, investigated a sampling of judicial processes between 2005 and 2006 to determine irregularity of opinions committed by the judges.

The CNJ started administrative processes against judicial civil servants to establish individual responsibilities in supposed acts of corruption.

References: www.elmercurio.com.ec 2006/06/27 Sigue evaluación para jueces y fiscales.

[ LINK ] 2007/28/03 La Judicatura está dispuesta a tramitar posible queja del TSE contra Juez del Guayas

www.hoy.com.ec 2007/01/20Caso "Videos": el Consejo Nacional de la Judicatura inicia una investigación.

34f: In practice, when necessary, the judicial disciplinary agency (or equivalent mechanism) imposes penalties on offenders.

Score:

100

Comments: There are several cases in which the National Council of the Judiciary (CNJ-- Consejo Nacional de la Judicatura) sanctioned to judges who were not acting in accordance to the law.

The CNJ accepted from TSE a complaint against a judge, the CNJ launched an investigation and made the decision to dismiss him.

The president of the Superior Court in Chimborazo, and the ministers judges Armando Vinueza and Luis Oña Mendoza were removed from their positions by the CNJ. The CNJ ruled that the judicial servants acted with lack of well-known probity and aptness in the exercise of their functions, contravening the legal rules of the Constitution.

References: [ LINK ] 2007/03/28 La Judicatura está dispuesta a tramitar posible queja del TSE contra Juez del Guayas www.hoy.com.ec 2007/04/06. La Judicatura destituye a juez Juan José Ramírez.

[ LINK ] 2007/05/17 El Titular de la Corte de Chimborazo fue destituido.

Are there regulations governing conflicts of interest for the national-level judiciary?

35a: In law, members of the national-level judiciary are required to file an asset disclosure form.

Score:

YES

Comments: Article 5 f determines the requirements that must be gathered on the asset decalration form.

References: National Constitution: Article 122 Article 5 del Reglamento para la declaración jurada de bienes.

35b: In law, there are regulations governing gifts and hospitality offered to members of the national-level judiciary.

Score:

YES

Comments: Members of the judicial branch cannot accept gifts of any nature.

Article 285 and 264 from the Penal Code specifically prohibit to ask for or to receive (bribe) money, favors, or gifts. Article 121 of the National Constitution also makes mention to these crimes.

References: National Constitution: Article 121 Article 285 and 264 Codigo Penal.

35c: In law, there are requirements for the independent auditing of the asset disclosure forms of members of the national-level judiciary.

Score:

YES

Comments: When there exist serious indications of use of a front man, the Controller's Office will be able to request similar declarations of third persons linked to public officials.

Article 31 No.1 of the Law of the General Controller's Office of the State (Ley Orgánica de la Contraloría General del Estado) authorizes the practice of an external audit in any case and in anyone of its modalities.

References: National Constitution: Article 122 Article 31 No. 1 La Ley Orgánica de la Contraloría General del Estado

35d: In law, there are restrictions for national-level judges entering the private sector after leaving the government.

Score:

YES

Comments: It is a civil right and therefore once a judge has finished his or her period he or she can take any private position freely. The law prohibits performing two public functions at the same time, except for the case of university teaching.

References: National Constitution: Articles 23, 125 and 205

Article. 12 Ley Orgánica de Servicio Civil y Carrera Administrativa.

35e: In practice, the regulations restricting post-government private sector employment for national-level judges are effective.

Score:

100

Comments: There are no restrictions.

References: Outlet means.

35f: In practice, the regulations governing gifts and hospitality offered to members of the national-level judiciary are effective.

Score:

100

Comments: If a judge accept any kind of a gift, that constitutes a crime. There is evidence through several cases that have been reported by media outlets, in which judges and judicial servants have accepted bribes.

The USAID study shows Another great problem that faces the judicial power in Ecuador is corruption. Ecuadorians consider the corruption as a serious problem in the country and 68 percent of the population thinks that the corruption between the officials government is wide-spread.. They launched a study using surveys, and recognized wide-spread bribes in the judicial system. This is a case in which two judges of the Penals Third Office of the i Supreme Court are implicated in a case of bribes.

References: Auditoría de la democracia: Ecuador 2006 USAID Ecuador.

www.elmercurio.com.ec 2006/09/11 LOS BORBUA VIDEOS.

35g: In practice, national-level judiciary asset disclosures are audited.

Score:

100

Comments: This is done by Civil Commission of Corruption Control (CCCC--Comisión Control Cívico de la Corrupción) and General Controller of the State (CGE--Contraloria General del Estado).

Nevertheless, there is no formal process to corroborate information declared and the real information. The agencies only take action when they suspect deceptive information.

References: Media www.hoy.com.ec 2007/01/02 El caso Bermeo lleva tres años en la Suprema sin sentencia

Peer Review Comments: The asset disclosures are not audited.

Can citizens access the asset disclosure records of members of the national-level judiciary?

36a: In law, citizens can access the asset disclosure records of members of the national-level judiciary.

Score:

YES

Comments: Article 81 of the National Constitution guarantees the right of access to information. . In accordance with the law, people can access the financial assets of members of the national level judiciary.

References: National Constitution: Article 81 and Article 94

Article 4, Ley de Transparencia y Acceso a la Información Pública.

Peer Review Comments: This is not normally done. Access is considered to be reserved.

36b: In practice, citizens can access judicial asset disclosure records within a reasonable time period.

Score:

100

Comments: The members of the Superior and Supreme Courts should declare their assets by public declaration in a notary. This is a requirement, before to take their jobs. This is a public document, and the common citizen can access it.

The common citizen must spend a "considerable amount of time" to access these documents. The slowness of the judicial function is a barrier.

References: The declaration of goods of the General Prosecutor of the Nation in a Public Notary: [ LINK ] 211 vacantes en la Fiscalía General

36c: In practice, citizens can access judicial asset disclosure records at a reasonable cost.

Score:

100

Comments: The cost to access this document is not difficult, depending the numbers of pages could be US$10 to US$15 USD. The central problem is that the information is not publicly available.

References: www.elmercurio.com.ec 2006/09/25 Cuentas aún no se hacen públicas.

Peer Review Comments: Accessing these types of records implies visits to specific offices, the filling out of forms and waiting periods. A better information source would be the Information Access Coalition (Coalición de Acceso a la Información).