Contribution of the Ecuadorian constitutional juriprudence to liberty and due process

The Ecuadorian Constitution conceives habeas corpus as a judicial action designed to guarantee life, freedom of movement and personal integrity of a detained person. Moreover, since 2019 the Constitutional Court of the Ecuador has issued a series of judgments in which it has deepened its protective scope. Indeed, in a ruling of 2021 the Court evidenced a structural and systematic violation of human rights in the Ecuadorian prison system, in response to which it established mandatory standards to ensure the rights of detainees. This included the possibility in certain cases of ordering the release of sentenced persons. In this paper I will discuss the main aspects of this and other related judgements issued by such a Court, which address the country‘s prison crisis through the broadening of the habeas corpus scope. This analysis will reveal the relevance of the Court‘s decisions for the resignification of criminal law in regards to the appropriate safeguard of human rights.

The national social rehabilitation system crisis has reached enormous proportions. The scenario of deaths occurred under the custody of the State is now of public knowledge and has concerned international human rights bodies. Between 2019 and 2021, the central government has decreed states of exception three times with their subsequent renewal, each for the maximum term allowed. The Constitutional Court of Ecuador has issued the respective constitutionality rulings. In the follow-up phase, the Court has promoted intersectoral articulation of governing institutions, academic, civil society sectors, and of individuals deprived of freedom. In February 2022, the Government enacted the 2022-2025 Social Rehabilitation Public Policy. This paper analyses the abuse of the figure of the state of exception to address structural issues that have not been resolved in the ordinary sphere of public management, and the role of the Constitutional Court and its legal philosophy in this process.

This paper takes on the issue of how different courts in the Ecuadorian judicial system interpret the constitutional and statutory provisions limiting the maximum duration of remand in criminal cases. The Ecuadorian constitution provides for two parallel judicial systems: The Ordinary Judicial Branch –headed by the National Court of Justice (NCJ)–, and the Constitutional Adjudication System –with the Constitutional Court (CC) at its pinnacle, and other courts, including the NCJ, as part of it–. While the first one deals with “ordinary“ –including criminal– cases - the second one enforces the constitution by way of remedies against fundamental rights violations, such as habeas corpus. Concerning remand provisions, whilst the CC has just issued obiter dicta, different tribunals within the NCJ have had different interpretations, both when acting as ordinary and as constitutional magistrates. The paper explores who is entitled to make a binding interpretation.

In April 2021, the Constitutional Court of Ecuador issued an opinion on the constitutionality of the 1938 ban on abortion in cases of rape. However, beyond the exciting discussion on abortion itself, the opinion offers three interesting lessons for global public law regarding Constitutional Courts and politics. First, although judicial decisions have put an end to the abortion debate in many countries, Ecuador‘s 2021 opinion recognizes that there are issues on abortion that should be discussed in the political arena with the highest standards of democratic deliberation. Second, the opinion reveals that Constitutional Courts do not necessarily have the last say on every complex constitutional issue but can be the starting point to a broader political discussion before a divided society. Finally, the judicial opinion demonstrates that Constitutional Courts can insert feminist demands in the public agenda.