Access to Justice During the Pandemic: Ecuador's Experience in Global Perspective

Alejandro Vanegas Maingon

Universidad Espíritu Santo

Access to justice is the way people protect their legal rights through legal processes. It is for this reason that access to justice has been described as “a basic principle of the rule of law”, because it allows the protection and restoration of rights that have been violated. Meaningful access to justice requires the elimination of economic, cultural and other social barriers. From this perspective, the Inter-American Commission of Human Rights has observed that “the obligation of States is not only negative – not to impede access to these resources – but fundamentally positive, to organize the institutional apparatus so that all individuals can access those resources”.

The requirements of access to justice are many, including the existence of judges, the availability of affordable or free legal assistance, the expedited resolution of judicial processes, the ability to file lawsuits, the independence and impartiality of decision makers, among others. However, during the COVID-19 pandemic, people in many countries around the world have been unable to access justice. In this post, I will explain how access to justice was compromised in Ecuador during the early stages of the pandemic.

Access to Justice under Ecuador’s Constitution

It is often said that the first duty of society is justice. Article 1 of the Ecuadorian Constitution of 2008 gives effect to that maxim by establishing the country “as a constitutional State of rights and justice”. This allows all rights to be justiciable in the country through different jurisdictional guarantees, something that is possible because of the constitutional supremacy clause in article 424, which provides: “The standards and acts of public power must be upheld in conformity with the provisions of the Constitution”. As much was confirmed by Ecuador’s Constitutional Court in Case No. 021-13-SCN-CC, which stated the following: “The norms and acts of the public power must maintain conformity with the constitutional provisions”. However, constitutional supremacy, and the vindication of rights, is only possible where there is access to justice.

Ecuador’s Judicial System During the Pandemic

Ecuador officially had its first case of COVID-19 on February 28, although no control measures were established to prevent the spread of the disease until March 16, when the President issued executive order 1017. With this order, a state of emergency was established throughout the country, to guarantee the right to health of all citizens. In consequence, the implementation of different measures was ordered. For example, the rights to freedom of movement and assembly (article 66(13) and (14)) were suspended and a curfew was established.

On March 14, the organizing body of the judicial system, through resolution 028-2020, ordered that among all jurisdictional guarantees only habeas corpus processes could be filed. On March 17, all judicial system workers’ hours were suspended with resolution 031-2020 – except for those with jurisdiction over cases of violence against women, traffic accidents and flagrant crimes. In other words, of all rights, only freedom and physical integrity could be made justiciable, which clearly limited access to justice.

Ecuador’s Constitutional Court During the Pandemic

On the other hand the Constitutional Court of Ecuador, following a set of established procedures, exercised its constitutional review of executive order 1017. This order was considered valid through Opinion No. 1-20-EE/20A, issued on March 19. It is important to note, however, that the Court declared that rights not expressly suspended by the executive order would remain unaffected during the state of emergency.

Days later, the Constitutional Court issued another decision – No. 29-20-IS/20 – dismissing a claim but stating the following:

“Nevertheless, the claims that have to do with access to public information or with the alleged violation of constitutional rights are subject to other jurisdictional guarantees, and since the declaration of a state of emergency does not imply the suspension of any jurisdictional guarantee, it is possible to file such guarantees at any time with the corresponding authorities.”

This clarification was closely related to a subsequent action by the Constitutional Court on April 16, in the Follow-up Phase of Opinion No. 1-20-EE/20. Due to the evident impossibility of members of the public filing jurisdictional guarantees, the Constitutional Court requested the following from the organizing body of the judicial system:

a)     Measures to ensure access to jurisdictional guarantees throughout the country;

b)    Reasons for the restriction of jurisdictional guarantees (other than habeas corpus, which was not restricted).

The organizing body of the judicial system, taking the Constitutional Court’s dispositions into consideration, ruled the following day by resolution 038-2020, in what was a confusing interpretation. The organizing body of the judicial system stated that the right to file jurisdictional guarantees had never been suspended. This resolution thus stood in stark contrast to the experience of citizens who had complained on social and traditional media about the limitation of access to justice for several days. Even after this resolution, however, the possibility of filing jurisdictional guarantees was available in only 6 of the 24 Ecuadorian provinces, which clearly shows that access to justice was affected.

Consequence of the Restriction on Access to Justice

Ecuadorians were unable to use their jurisdictional guarantees for a total of 32 days in the midst of a state of emergency. This situation of limited access to justice was especially dangerous in a moment of concentration of power and a devastating health crisis. For an example of the particular dangers of this moment one can refer to the Inter-American Court of Human Rights, which has expressed its concern over the spread of COVID-19 among Amazonian Indigenous Peoples. In the absence of government action, this is an issue that must go to court. If these people cannot access justice, they will be diminished in their ability to protect their rights in a timely and effective manner.

Access to Justice around the World

Unfortunately, this situation is not unique to Ecuador. The Global Access To Justice Project conducted an investigation into access to justice in 51 countries all over the world that produced alarming data. For example, it was reported that 31% of countries surveyed were committing human rights violations on the pretext of responding to the pandemic and 91% of countries surveyed were temporarily suspending or delaying all matters except those deemed “urgent”. The relationship between both data points demonstrates the seriousness of limiting access to justice at the present time. Many people worldwide have been deprived of the tools to safeguard their constitutional rights at exacting the time those rights are most in danger.

On a more positive note, the judicial systems of some countries tried to continue providing their services. For example in Spain, the General Council of the Judiciary through resolution suspended all non-urgent activity when the state of alarm entered into force, but the courts continue to operate to cover the services considered essential. Adapting to the circumstances they began to use technological tools such as WhatAapp and Skype. Technology must be a solution in these difficult times we live in, so that citizens are not judicially derailed.

In a state respectful of human rights and access to justice, such as Ecuador, it should never be impossible to file jurisdictional guarantees. It is hoped that the Ecuadorian experience provides a lesson both here and abroad, so that a similar situation does not happen again. There is no doubt that the pandemic poses difficult challenges for those who work in the judicial system, but these must be overcome, so people can protect their rights through access to justice.

Alejandro Vanegas Maingon is Professor of Constitutional Law at Universidad Espíritu Santo, Ecuador.

Suggested citation: Alejandro Vanegas Maingon, “Access to Justice During the Pandemic: Ecuador's Experience in Global Perspective” IACL-IADC Blog (25 June 2020) *URL*