UPDATE: The Basic Structure of the Ecuadorian Legal System and Legal Research

 

By Maria Dolores Miño

 

Maria Dolores Miño is a human rights specialist from Ecuador. She has a Law Degree from Universidad San Francisco de Quito, and an LL.M. degree from the Washington College of Law of American University in Washington, DC. She has worked on human rights and democracy issues at the Inter-American Commission of Human Rights, the Office of the Attorney General of Ecuador, and the Andean Foundation for the social study of the media-Fundamedios. She currently works as an International Law professor at Universidad de las Américas, Quito, and as the legal advisor of the Justice and Rights Observatory.  Also, she is a regular contributor to printed and on-line publications in Ecuador and abroad. Ms. Miño has previously collaborated with this publication in September, 2007 with the article The Basic Structure of the Ecuadorian Legal System and Legal Research”, and in 2009 with an update of that same report. .

 

NOTE: Due to the many changes that the 2008 Constitution has brought in Ecuador, the author strongly suggests reading the 2009 version of this article, so that readers can compare and contrast the reforms. Other relevant changes took place after the 2011 referendum, and as to this day, some other reforms might take place soon.

 

Published April/May 2015

(Previous update on September 2009)

See the Archive Version!

 

   Table of Contents

I. ECUADOR’S 2008 CONSTITUTION: REFOUNDING THE STATE UNDER THE STANDARDS OF THE NEW SOCIAL REVOLUTION

1.      General Principles

2.      Fundamental Rights Enshrined in the 2008 Constitution

3.      Legal Remedies Available for the Protection of Fundamental Rights

a.      Protection Remedy

b.      Habeas Corpus

c.      Access to Public Information

d.      Habeas Data

e.      Non- Compliance Action

f.       Extraordinary Action of Protection

4.      Democratic Procedures

II.              GOVERNMENT STRUCTURE AND PUBLIC FUNCTIONS

III.            THE LEGISLATIVE BRANCH

1. Requirements to be a congressman

IV.            THE EXECUTIVE BRANCH

1.      Requirements to be President

2.      Ministers of State

3.      Public Force

4.      National Equality Councils

V.              THE JUDICIAL BRANCH

1.      General Principles

2.      Bodies of the Judiciary

VI.            SOCIAL REHABILITATION

VII.          POLITICAL DIVISION OF THE STATE´S TERRITORY

VIII.        MONETARY SYSTEM

IX.            CREATION OF LAWS AND RATIFICATION OF INTERNATIONAL TREATIES

1.      Competence Ratione Materia

2.      Types of Law

3.      Procedure for the Formation of the Law

4.      Validation of International Covenants

X.              THE CONSTITUTIONAL COURT

XI.            THE 2011 REFERENDUM

XII.          FURTHER REFORMS

XIII.        THE OFFICIAL REGISTER (GAZETTE)

XIV.        ONLINE INFORMATION OF THE ECUADORIAN LEGAL SYSTEM

                        

I. ECUADOR’S 2008 CONSTITUTION: REFOUNDING THE STATE UNDER THE STANDARDS OF THE NEW SOCIAL REVOLUTION

The Republic of Ecuador is ruled by the 2008 Constitution [1]

Ecuador adopted a new Constitution on October, 2008, through a highly participative consultation process in which Ecuadorians democratically decided to rebuild the country’s legal, political and social structure.

 

The fundamental change brought by the 2008 Constitution is the adoption of the neo- socialist doctrine which will lead national norms, plans and policies. Under these standards, the role of the State changes, and so do the rights and obligations of citizens.

 

1. General Principles

 Ecuador is a constitutional State that functions under the principles of the fundamental rights and social justice. 

 

Ecuador is self-defined as a sovereign, unitary, intercultural, plurinational State. Spanish is the official language. Quichua and shuar are official tongues to be used in intercultural exchange. 

 

State's duties are to foster and protect Human Rights, strengthen national sovereignty and unity, eradicate poverty, foster development and a culture of peace.

 

2. Fundamental Rights Enshrined in the 2008 Constitution:

  Human Rights are guaranteed to every person community, nationality or collective group inside the country with no discrimination, as established in the Constitution and other International Covenants that Ecuador has ratified. The rights enshrined in these instruments can be directly demanded in any national court, even if there is no law to regulate their exercise. 

 

Ecuador recognizes and obliges itself to protect and guarantee the full exercise of Human Rights to every person within its jurisdiction. Aliens have limitations as to the exercise of political rights. 

 

The Constitution prohibits statutes of limitation for crimes against humanity, humanitarian law and gross violations on human rights. The Ecuadorian constitution also recognized a broad list of economic and social rights that must be guaranteed through public policies. It also enshrines norms relating to indigenous peoples and afro Ecuadorian communities, in which self-determination, self-government, participation and indigenous justice is recognized and protected.

 

The 2008 Constitution has introduced several norms that broaden the scope of rights enshrined and protected by the State. Perhaps, the most outstanding reforms are those that recognize Nature as a subject of fundamental rights, the prohibition of discrimination due to migratory status, the right to a “good living” (buen vivir ), and the recognition of the right to human mobility, which includes emigration, immigration, transit and the right to return to one’s state in a voluntary, dignified fashion. 

 

Hence, while fundamental rights in the 2008 Constitution are all equal in hierarchy, they are separated in three different categories: Freedom and Liberty Rights (civil rights) Good Living /Sumak kawsay Rights (Social and Economic Rights) and Participation Rights (political rights in a broader sense). 

 

As fundamental rights are enshrined in Ecuador’s Constitution, correlative obligations are also established to all citizens. One remarkable responsibility is the standard set by indigenous peoples “ama killa, ama llulla, ama shwa” (one must not be lazy, one must not lie, and one must not steal).

 

3. Legal Remedies for the Protection of Fundamental Rights

 The legal remedies available in Ecuador have grown in number from three to six under the 2008 Constitution, as follows:

 

  1. Protection Remedy: Formerly known as amparo, this remedy seeks to provide protection of fundamental rights before actions of any public authority; for the wrongful application of public policies, and for actions of non-state actors that act under its acquisition.

 

  1. Habeas Corpus : Every person who believes to be unfairly deprived of his personal liberty may file a habeas corpus remedy, by himself or through another person. Habeas corpus can be filed before any judge, who must summon to a hearing within 24 hours to determine the legality of the detention. Authorities must demand the immediate presence of the petitioner, and the order through which he was arrested in order to determine the legality of his arrest, and the conditions of the prisoner.

 

  1. Access to Public Information : This remedy seeks to provide to any person, organization or group, the effective access to public information when its request has been wrongly denied or ignored. It can be filed even if the authorities have alleged that such information is of a reserved nature, or involves matters of State security, in order to prove the veracity of such arguments.  More information on the right to access to public information can be found in the Transparency and Access to Public Information Law.

 

  1. Habeas data: Every person has the right to access to documents in public and private institutions when these documents include personal information about that person, through established procedures that guarantee that any mistake or misuse of this information is duly corrected.

 

  1. Non- compliance Action : This remedy seeks to oblige authorities to comply with national law and decisions of national and international tribunals when such decisions contain an express mandate to do or not to do something.

 

  1. Extraordinary Action of Protection: This remedy can be filed against final decisions of national courts that have violated rights enshrined in the Constitution. This remedy should be filed after all other remedies have been exhausted, unless the person is somehow impeded to exhaust them due to negligence, delay or a pattern in practice of unjustified denial of national authorities. 

 

To find out more on the procedures of protection remedies, please visit the website of the Constitutional Court of Ecuador.

 

4. Democratic Procedures :

There are five basic procedures for democratic exercise within the Ecuadorian constitution:

              

  1. Democratic Elections elect public officials as independent candidates or through those proposed by political parties, as arranged by the law.
  2. Public Consultations to reform the Constitution or on matters of grave importance to the country.
  3. Revocation of Mandate to local authorities for acts of corruption.
  4. Popular normative action for the creation of legal norms.
  5. Constitutional Reform Proposal.

 

I I. GOVERNMENT STRUCTURE AND PUBLIC FUNCTIONS

Every institution and public officer appointed by law shall not have any other attribution than those previously established by law. There shall be accountability for every action carried out by public officials.

 

Public Administration is organized in a decentralized fashion.

 

The Government Structure is divided as follows:

1. Bodies of the Legislative, Executive, and Judicial Branch.

2. Bodies of Transparency and Social Control.

3. Electoral bodies.

4. Bodies that form the sectional independent regimes (municipalities and provincial councils)

5. Other bodies created by the Constitution or by law in order to provide public services or  

     develop economic activities of the State.

 

  III. THE LEGISLATIVE BRANCH

The National Assembly is the main authority of the Legislative Branch. It is established in Quito, but in cases of emergency it can meet in any other city within national borders.

 

It is formed by representatives who are elected as follows:

 1. 15 national representatives;

2. 2 representatives for each of the 24 provinces

3. 1 representative for every 200.000 inhabitants.

 

1. Requirements to be a Congressman

To be an Ecuadorian congressman, one must be Ecuadorian by birth, be entitled to the exercise of its political rights, be at least 18 years old, and be able to fully exercise political rights.

 

IV. THE EXECUTIVE BRANCH

The President exercises the Executive Function, and is chief of State and Government responsible for public administration. The term of his mandate lasts for four years, but can be reelected immediately.

 

1. Requirements to be President

Being Ecuadorian by birth, being able to fully exercise political rights and be at least thirty –five years old when proponed as candidate. These same conditions apply for the vice-president.

Both president and vice-president are elected by absolute majority of votes, in a universal, equal, direct, and secret way.

An elected president may end his duties before term for the following reasons:

 

·               For presenting a resignation request to the National Congress

·               Physical or mental inability (must be proven and declared by the National Congress)

·               Destitution due to a political trial

·               Abandonment of duties, as declared by the National Congress

 

2. Ministers of State

 They can be freely appointed or removed by the President, and will represent him in the areas they have been assigned to. They are responsible for the acts and contracts that have been produced while in function.

 

3. Public Force

 The public force includes both The Armed Forces and the National Police. Their main duties are to protect national sovereignty, independence, and integrity. They have to protect public order and security. The President is Commander in Chief of both the Police and Armed Forces. In case of emergency, the President can pass these duties to someone else.

 

4. National Equality Councils

These bodies are responsible for the guarantee and protection of the fundamental rights enshrined in the Constitution and international treaties in the elaboration of policies involving vulnerable groups. Both public officers and members of the civil society can be part of such Councils.

 

V.  THE JUDICIAL BRANCH

 Only the bodies of the Judicial Branch can exercise jurisdiction. The Judicial System must be unitary.

 

A remarkable reform that the 2008 Constitution brought was the abolishment of Military and Police Tribunals, which had been forbidden since the 1998 Constitution, however this disposition never came into force. Ecuadorian justice recognizes the right of indigenous and peasant communities to exercise their own justice system. Also, it recognizes other mechanisms of conflict resolution, such as peace judges and mediation.

 

1. General Principles

 Ecuadorian Judicial System guarantees due process, due diligence, and efficiency. Justice cannot be denied because of the lack of formalities.

Every act produced by members of the Public sector can be appealed in the ordinary justice system, as established by law.  The members of the Judiciary are entitled to the due safeguards for the exercise of their functions; therefore, stability in office.

 

2 . Bodies of the Judicial Branch:

 

a.      National Court of Justice, which has jurisdiction in all the State's territory. It is located in Quito and acts as a Court of Cassation through specialized chambers, according to Law.

b.       Provincial Courts, which have jurisdiction over the territory of each province. The National Court will create provincial courts as needed.

c.      Tribunals and Judges appointed by law, whose independence is guaranteed by the State and can only be subject to the Constitution and the Law.

d.      The National Council of the Judicature, which is an administrative and disciplinary body of the Judiciary.

e.      Public Defendants’ Office; an independent body of the Judicial Branch responsible for providing legal assistance to those who may not afford the services of a private lawyer, in order to protect the right to a fair trial.

f.       State Attorney’s Office: an independent body that investigates criminal accusations.

 

The 2008 Constitution introduced witness protection programs as part of its duties to protect the right to a fair trial.

 

Also, the 2008 Constitution recognized the right of indigenous peoples to administrate justice in their territories in accordance to their ancestral traditions (indigenous justice system). While to this day the constitutional disposition that ordered that a Law should be passed to regulate issues regarding indigenous justice, the Constitutional Court has delivered decisions in which the application of this justice system has been limited. According to the Court, Ecuador´s ordinary criminal justice system may review decisions of indigenous authorities if those decisions violate or jeopardize the exercise of fundamental rights, such as life or personal integrity [2] .

 

In May 2011, through a constitutional referendum some changes were made to the 2008 Constitution in several areas such as the Judicial Branch. According to what the people of Ecuador decided then, that the members of National Council of the Judicature would be removed and replaced by a transitional body that would have the duty to rebuild the Judiciary System [3] .

 

In 2014, an Integral Criminal Code was passed. The Code incorporated in one text both substantive and procedural rules on criminal matters; some typified actions from the former Code were eliminated, and some other crimes were newly incorporated. Among the most important, are the introduction of the crime of femicide and psychological violence against women, medical malpractice and informatics crimes. While there was some discussion on the ban on abortion, the new Code maintained former dispositions that only allow abortion in cases of rape of a mentally disabled woman, or in cases where the life of the mother is at grave risk. Abortion in case of rape to all women did not pass [4] .

 

VI. SOCIAL REHABILITATION

The Social Rehabilitation system will pursue the reform of inmates to capacitate them for a future incorporation back to society.

 

Detention facilities will have enough and adequate resources to ensure physical integrity of the inmates. They will be managed by nonprofit organizations, under the supervision of the State.

People who have been deprived of their freedom, but currently are charged and subject to a criminal procedure, will be detained in temporary detention facilities, separated from those who have been declared guilty of criminal charges. These other inmates will be kept in social rehabilitation facilities. No one may serve time in places other than these facilities.

 

Under the 2008 Constitution, people who have been deprived of liberty but have not a firm judicial decision yet, are entitled to exercise their right to vote.

 

VII. POLITICAL DIVISION OF THE STATE'S TERRITORY

 In order to make administration efficient, the Ecuadorian territory is divided into regions, provinces, cantons, and parishes, which may interact and join for a proper administration of their natural and economical resources.

 

The independent sectional regime includes both city halls and provincial councils (which are the political-administrative bodies of cities and provinces respectively), and must generate their own economic resources. However, the States must give part of the national budget to these jurisdictions, depending on their population.

 

Other parts of the Ecuadorian territory are subject to special forms of political administration regimes. Such is the case of the province of Galapagos , which is under such regime due to its particular environmental and demographic features.

 

VIII. MONETARY SYSTEM

Even when the 1998 Constitution established that the Central Bank of Ecuador was the body entitled to administrate and lead monetary policies, since the adoption of the dollarization scheme, which determined that U.S. Dollars would be the national currency, the main functions of the Central Bank have been to guarantee the due functioning of the "dollarized" economical regime and to foster the economic growth and wellbeing of the country.

 

The 2008 Constitution has not recognized dollarization as the monetary system of the State, nor has it banished it. Nevertheless, dispositions under article 302 of the Constitution establish that the Executive Branch will rule monetary policies, which will be executed by the Central Bank.

 

IX. CREATION OF LAWS AND RATIFICATION OF INTERNATIONAL COVENANTS .

 

1.      Competence Ratione Materiae:

The National Assembly is entitled to draft and approve laws in the following subjects:

 

  1. Fundamental Rights and Freedoms
  2. Typify felonies and establish sanctions
  3. Create, modify and suppress tributes
  4. Establish competences to the bodies of the State
  5. Modify the political and territorial division of the State.

 

2.      Types of Law

 

 a. Organic

These regulate the organization and activities of the main bodies of the Government, and the exercise of fundamental human rights and freedoms.

       

 b. Ordinary

All the laws that are not covered by the definition above can be considered as ordinary.

Organic law prevails over ordinary law, and must be approved, reformed or abolished by absolute majority of the National Assembly.

 

3. Procedure for the Formation of the Law

Only the Representatives of the National Assembly, the President, the Constitutional Court, the State’s Attorney, the State’s Prosecutor, and the Public Defendant, citizens represented by o, 25% of the national population is entitled to present projects of Law.

 

Only the President is entitled to present projects in which taxes are created, modified or suppressed.

 

Eight days after the presentation of the project, the President of the Assembly will distribute it among the senators and will order to publish an abstract. It will be sent to the pertinent Commission, which will start the required procedure to study it.  Civil society may present observations before the Commission.

 

The Commission will present a report, from which the Assembly will hold a first debate in which relevant observations may be presented. Then it will return to the Commission for evaluation and a presentation of a new report.

 

Once approved, the project will be sent to the President for approval or objection. If there is no objection, the Law will be published within ten days in the Official Register for validation.  If it is partially approved, the Congress will have 30 days to analyze it, and debate it once to accept the objections and mend the project, or ratify the one originally approved. In both cases, the Congress will send the Law to the Official Register for its publication. If the Congress does not pronounce itself in regard of the presidential objection, it will be understood that it has been accepted. The President then will send it for publication in the Official Register. 

 

If the President objects the project, it will be archived and analyzed one year later. 

 

To find out more about the projects that are currently analyzed in Ecuadorian National Congress , click here .

 

4. Validation of International Covenants

The National Assembly will approve or disapprove the ratification of international covenants as established by Law. 

 

The 2008 Constitution contains several dispositions that suggest that all international norms on Human Rights are binding to the State, even those soft law declarations that usually don´t have such nature.

 

 

X. THE CONSTITUTIONAL COURT

The Constitutional Court has national jurisdiction and functions in Quito. It is formed by 9 chairmen, each with one replacement. They perform their duties for four years and may be reelected.  They are to know about the unconstitutionality or certain administrative acts produced by members of the Public Administration. The Constitutional Court has the power to stop provisionally or partially, all its effects. It will also attend unconstitutionality requests on law projects and suspend totally or partially their effect.  It can hear as a court of appeal, those resolutions in which the constitutional mechanisms have been denied.  It has to establish the coherence between international treaties and the constitution, for further ratification. ( Dictaminar de conformidad con la Constitución, tratados o convenios internacionales previo a su aprobación por el Congreso Nacional .) However, decisions taken by the Judiciary are not subject to revision from the Constitutional Court.

 

All the resolutions of the Constitutional Court are published in the Constitutional Gazette .

 

 

XI . THE 2011 REFERENDUM

As stated earlier, in 2011 a referendum promoted by President Correa was carried out. The people of Ecuador were presented with ten questions on several matters, and the results would have an impact both in the Criminal Code and in the 2008 Constitution. The questions presented raised controversy, since many lawyers, academics and NGOs believed them to be dangerous to the exercise of fundamental rights. The questions of the referendum referred to the following issues:

  1. The statute of limitations on preemptive detention in order to foster security (questions 1 and 2).
  2. Prohibition to bank owners to own other enterprises or have large percentage of stocks in other companies in order to prevent monopolies and conflict of interests;
  3. Removal of the members of the National Council for the Judicature and create a transitional body that would reform the Judiciary;
  4. Changing the composition of the National Council for the Judicature and its Organic Law;
  5. Passing a Communications Law in order to prevent media and printed press to disseminate violent and sexual messages, as well as hate and discriminatory speech, with the correspondent sanctions for ulterior responsibility;
  6. Reforms of the Criminal Code so that unjustified private enrichment would be criminalized.
  7. Prohibition of gambling and gambling houses in general;
  8. Prohibition of public shows that entail the death of an animal (this question really aimed to forbid bullfighting);
  9. To typify as a crime the non-affiliation of workers to the Social Security Institute.

 

The people of Ecuador gave a positive answer to the ten questions posed. As a result, in 2014 an Organic Communications Law was passed. This law was particularly controversial, since it posed several dispositions that affected freedom of speech. In 2014 as well, the Criminal Code was replaced with the Organic Criminal Code, in which all criminal laws (substantive and procedural) were compiled in one text, and several crimes were added, while others were struck down. Also, gambling and bullfighting were forbidden in most regions.

 

XII.        FURTHER REFORMS

S ince 2013, President Correa and its party members have discussed the idea of a new reform of the Constitution that mainly aims to change the current prohibition of presidential reelection for more than two terms. Under the proposed reform, a President could be reelected indefinitely. The main debate today regarding these reforms is that, under the official position, such changes can be carried out without a public consultation to the people, and that a Legislative amendment may be enough. Others sustain that such relevant changes affect the structure of the State and the exercise of fundamental rights, and therefore they should be submitted to the decision of the people. The Constitutional Court delivered a decision in which the procedure was determined to be in consonance with the Constitution in November, 2014 [5] . While reelection has been the most debated topic, other changes that may affect fundamental rights are to be noticed as well: recognizing social communication as a public service (and not a fundamental right); allowing the Armed Forces to control internal security, among others. A date to decide on these reforms has not been set yet [6] .

 

XIII. THE OFFICIAL REGISTER (GAZETTE)

The Official Gazette was first created at the end of the XIX century. Until 1998, it depended directly on the Executive Branch. In this year, the newly drafted Constitution established that it would depend on the Constitutional Court until a proper legal background was set. The material version of the daily issues of the Official Gazette is printed at the Editora Naciona l, Quito.

 

The Official Gazette publishes daily every Law, Decree, Resolution, and any other legal modification product of a public institution. Such institutions send a transcript of the legal text to be printed to the Director of the Official Gazette. After due corrections, they are printed.

 

Kinds and Timing of Official Publications:

 

OFFICIAL GAZZETE / Registro Oficial ORDINARY ISSUE

OFFICIAL GAZZETE ADITIONAL ANEXES

SPECIAL ISSUES

MONTHY INDEX

Issued every day, numbered from one and so on, and starting from the first day of every presidential period.

Issued as needed. It has the same number of the Official Gazette it completes.

Issued when documents are especially large. Numbered from one and so on, at the beginning of every presidential period

Issued on the tenth day of the next month.

 

Both the electronic and printed version of the Official Gazette is only available by subscription. However, most of them are available at Revista Judicial .

  

XIV. ONLINE INFORMATION ON THE ECUADORIAN LEGAL SYSTEM

Ecuadorian legislation is officially published (paper) in the "Registro Oficial" (Official Gazette).

These daily publications can be found online .

 

The official website of the Ecuadorian National Assembly  has a large list of recently approved laws and legal projects that are currently being analyzed and the status of each inside the Legislative Branch.

 

In the official webpage of the Executive Branch, presidential decrees and ministerial decisions can be found. Also, it keeps a regular update of relevant President's activities.

 

The official website of Ecuadorian Judiciary - Ecuadorian Judiciary contains information on actual processes to be decided, links to all the bodies of the Judiciary, the legal background that rules the Judiciary, and contacts in general.

 

The official website of the National Court of Justice contains general information on activities, contacts, and members.

 

LAW SCHOOLS AND FACULTIES :

 

 

ECUADORIAN LEGAL WEBSITES:

 

 

LEGAL BOOKSTORES:

In these stores one can find most legal Codes and Legislation, as well as many other books on Law.

 

 

LEGAL PUBLISHERS:

There are very few publishers of the Ecuadorian Codes, Laws, etc. However, the two that are most trusted and frequently used by students and lawyers are:

 

 

GENERAL INFORMATION ON ECUADOR :

 For general information and statistics, see the official webpage of the Ministry of International Affairs and Ecuador Online .



[1] The 2008 Constitution entered in force in October 20 th , 2008, and was Publisher in the Official Diary (Registro Oficial) No. 449. To access the complete text of the Constitution, go to http://www.asambleaconstituyente.gov.ec/documentos/constitucion_de_bolsillo.pdf .

[3] For a summary of the adopted reforms in the 2011 referendum, please go to: http://es.wikipedia.org/wiki/Referéndum_constitucional_y_consulta_popular_de_Ecuador_de_2011 (information in Spanish).

[5] The complete decision of the Constitutional Court is available here: http://especiales.elcomercio.com/documentos/2014/11/Sentencia_Corte.pdf (In Spanish only).