Gestión Digital – Implications of the Declaration of Sanitary Emergency and State of Emergency in the Administration of Justice



DATE: 15-04-2020


-Mateo Zavala

On Thursday, March 12, 2020, the Ministry of Public Health declared a State of Sanitary Emergency due to the outbreak of coronavirus—or COVID-19—to prevent a potential massive contagion among the population.

Despite having declared a State of Sanitary Emergency, the Judiciary Council and the National Court of Justice did not make any immediate pronouncements, which meant that activities in all Judicial Branch offices continued as normal.

On March 16, 2020, the Judiciary Council, through Resolution 028-2020, restricted public service in judicial offices, with the exception of judicial units with jurisdiction over: flagrante delicto, criminal, violence against women and the family unit, traffic, juvenile offenders, multi-competent units and penitentiary guarantees.

In turn, The National Court of Justice, through Resolution 04-2020, ordered on the same date the suspension of terms and deadlines in all judicial proceedings, except for flagrant crimes while the State of Sanitary Emergency continues; this is, until May 10, 2020.

Can a person go to court if constitutional rights not limited by the declaration are violated during the State of Emergency?

Note that declaring a State of Emergency, as set out in article 165 of the Constitution, only limits freedom of movement and freedom of association and assembly rights. Therefore, if during the State of Emergency any right other than those mentioned above is violated, citizens may initiate the actions set forth in the Constitution before the criminal judges on duty by meeting the requirements established in the Organic Law on Jurisdictional Guarantees and Constitutional Control, and in the decisions issued by the Constitutional Court.

The Constitution and the Organic Law on Jurisdictional Guarantees and Constitutional Control foresee the following actions in case of constitutional rights’ violation:

i) Precautionary measures action, which can be requested independently or in conjunction with another constitutional action for the protection of rights, will depend on whether the claim is to stop the violation of a right or to avoid the violation thereof; ii) Protective action; iii) Habeas Corpus action; iv) Access to public information action; and v) Habeas Data action.

Knowledge and resolution of these actions, in accordance with article 86 numerals 1 and 2 of the Constitution, pertains to any judge of the Republic, given that the aforementioned norm establishes that all judges of Ecuadorian territory are competent to hear and solve constitutional cases. Thus, if there is a violation of constitutional rights that are not restricted under the State of Emergency, it is possible to approach any of the flagrante delicto units to request cessation of the violation.

Do court servers perform teleworking? What happens to the hearings and other proceedings scheduled for the dates when the judicial offices are not open to the public?

Even though the Judiciary Council has taken several actions for the use of technological means in the administration of justice, such as electronic notifications, it decided to suspend public service for judges and courts and did not opt for teleworking for judicial—non-administrative— officials.

Previously scheduled proceedings and hearings, on dates when the State of Sanitary Emergency continues, will be rescheduled according to the availability of each judicial unit. The Judiciary Council did not deem it appropriate to carry out the proceedings and hearings via telematic means, although this is permitted by law.

If the health emergency continues beyond the initially established period, it would be highly convenient for the Judiciary Council to arrange for hearings and other proceedings to be conducted electronically, in order to alleviate the impact of the situation on the administration of justice. It is worth noting that some proceedings are scheduled for 2022, which reveals the overload in courts and tribunals.

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