SUPPLEMENTAL EXPERT REPORT OF DR. VLADIMIRO ALVAREZ GRAU REGARDING EVENTS AFTER SEPTEMBER 2, 2010
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SUPPLEMENTAL EXPERT REPORT OF DR. VLADIMIRO ALVAREZ GRAU
REGARDING EVENTS AFTER SEPTEMBER 2, 2010
BACKGROUND
1. My name is VLADIMIRO XAVIER ALVAREZ GRAU. I am an attorney and have a
University degree in Social and Political Sciences. I received my law degree in 1970 from the
Catholic University of Guayaquil.1
2. I live in the metropolitan area of Guayaquil, Ecuador, and my professional address is El
Marqués building, 6th Floor, at Avenida 9 de Octubre 2009 and Los Ríos.
3. I filed an expert report in the case Republic of Ecuador v. Chevron Corporation and Texaco
Petroleum Company, in the United States District Court for the Southern District of New York,
1:09-CV-9958-LBS, on February 26, 2010 (Exhibit 2), and in the case Republic of Ecuador v.
ChevronTexaco Corp., in the United States District Court for the Southern District of New
York, 04 CV 8378 (LBS), on September 12, 2007 (Exhibit 3). I also filed an expert report in
the case Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador,
Arbitration Under the Rules of the United Nations Commission on International Trade Law
(UNCITRAL), PCA Case No. AA277, on March 10, 2008 (Exhibit 4).
4. On September 2, 2010, I submitted an expert report in PCA Case No. 2009-23, about the
validity of the rule of law, the independence of the Judiciary, and the impartiality of the
administration of justice system in Ecuador. I presented the same report in the case, Chevron
Corp. v. Donziger, et al., No. 11-CV-0691 (LAK) (S.D.N.Y.), on February 6, 2011. I
incorporate by reference the text and conclusions of that report into this current report. 1 A true and correct copy of my curriculum vitae is attached as Exhibit 1. My original report, submitted to the court in September 2010, in the case Chevron Corporation and Texaco Petroleum Company v. The Republic of Ecuador, In the Matter of an Arbitration Under the Rules of the United Nations Commission on International Trade Law (UNCITRAL), PCA Case No. AA277, contained Exhibits 1-130. That report, including all of its Exhibits, is attached to this report as Tab A.
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5. The present report supplements that presented in September 2010, updating it with
subsequent events. For my work regarding this supplemental report, I have set a professional
fee of $750 per hour for work performed. The opinions and conclusions that I have issued are
independent in relation to the subject matter of any controversy, regardless whether such
opinions or conclusions may be good or bad to any of the parties. These opinions are my
firmest convictions.
6. As discussed below, I have practiced law for nearly 41 years. I have also held several
positions as both an appointed and elected official throughout my professional career,
including that of Minister of Labor and Human Resources (from 1981 to 1983), Minister of
Government, Justice, Police, Municipalities and Religion (from 1983 to 1984, and from 1999
to 2000), and Minister of Education (from 1998 to 1999). I served as a National
Representative in the Congress of the Republic (from 1988 to 1992) and was a candidate for
President of the Republic of Ecuador (in 1992). I was also Dean of the Law School (from
1980 to 1981 and from 1993 to 1996) and President of the Catholic University of Guayaquil
(from 1996 to 2001). In addition, for many years I have been a columnist writing articles on
legal and political issues in Ecuador. I attach a list of the over 400 articles that I have written
in the last 10 years, including the publication of a book about the January 2000 coup d’état in
Ecuador (Exhibit 131).
Public Offices
7. Upon the recommendation of the then-Dean of the Law School at the Catholic University of
Guayaquil and others in the legal community, I was nominated by the Mayor and confirmed
by the City Council of Guayaquil to serve as the Municipal Attorney (principal legal adviser)
for the city in 1975. This was a legal, rather than political, position. I was tasked with
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ensuring that all decisions of the Municipality comported with the law, and I headed a staff
of about eight attorneys. In particular, I had to evaluate the legality of all of the city’s public
documents, and both my signature and that of the Mayor were required for a document to
legally bind the city.
8. In 1977, I was named by the Superintendent of Companies to serve as the Legal Director of
the Superintendency of Companies in Guayaquil, which oversees and regulates companies in
that city. Supported by a staff of around 15 attorneys, I evaluated the legal aspects of
applications to incorporate and reclassify various types of companies (for example,
corporations, limited liability companies, partnerships), the registration of companies in the
Mercantile Registry, the compliance of companies with audits and other regulatory
requirements, and issues relating to the dissolution of companies.
9. Dr. Osvaldo Hurtado Larrea, then the President of Ecuador, called me to serve as the
Minister of Labor and Human Resources in 1981. I did not know President Hurtado, and
when I first met with him, I asked why he was appointing me, given that I was a law
professor and not a politician. He told me that he did not want a politician, but a trained
professional, and that I had been recommended by several of his ministers for my expertise in
contracts and labor relations. This was a particularly difficult time for labor relations in
Ecuador since, under the military dictatorship that had ended just two years earlier, the
Minister of Labor would dictate the terms and conditions of employment. Part of my work
was to reduce the role of the government in labor relations and to facilitate direct negotiation
between the parties themselves in accordance with the rule of law and, where necessary, act
as mediator in the resolution of labor disputes.
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10. In 1983, President Hurtado named me Minister of Government, Justice, Police,
Municipalities and Religion. When I became Minister, Ecuador lacked any special operations
police force to handle hostage situations and the like, and I created a specialized police unit
called the Intervention and Rescue Group (GIR). I negotiated agreements with ambassadors
from the United States, Spain, and Israel for the group’s training. In addition, as part of an
overall effort to improve security in Ecuador, I obtained a significant increase in the levels of
remuneration of the police, to match that of the military.
11. I was elected to serve as a National (as opposed to a Provincial) Representative to the
National Congress in 1988, and I served a four-year term in this position. I was named
president of the Constitutional Affairs Commission of the Congress responsible for
considering constitutional reforms, reviewing the constitutionality of proposed legislation,
and evaluating charges of impeachment against public officials. I also was president of the
Codification Commission of the Congress, which ensured that legislative reforms enacted
over several years were compiled in an easily accessible and integrated text. In addition to
my work on these commissions, as a legislator I addressed the problem of
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employers firing employees just short of their 25th year of service in order to avoid paying
those employees a pension that, under our laws, became mandatory after completing those
years of service. To provide employees some form of protection, I successfully proposed a
law that guaranteed employees discharged after 20 years of service a proportional share of
their pensions. I also pushed a law through that expedited the process by which employees
could receive a lump-sum payment of their pensions, ending a time-consuming and
expensive court procedure required under the prior law.
12. I was a Candidate for the Presidency of the Republic in 1992 and came in fifth in the
nationwide election. My platform focused upon education, job creation, privatization of non-
essential services and industries owned by the State, and anti-corruption measures. To assure
the electorate of my integrity and transparency, I offered to sign an affidavit authorizing
anyone to investigate all of my assets and those of my family anywhere in the world. The
allocation of state resources was also a central theme of my campaign. For example, I asked
why a country so rich in resources had so much poverty and why public institutions, such as
hospitals, were in such poor condition given the vast resources of the State. A slogan from
my campaign—“Where is the money?”—became part of the popular lexicon, and I still hear
it quoted today.
13. In 1998, when I was the President of the Catholic University of Guayaquil, then-President of
Ecuador Jamil Mahuad appointed me Minister of Education, a position which I held until I
was once again named Minister of the Government, Justice, Police, Municipalities and
Religion, in 1999. One of the issues I addressed as Education Minister was to update history
textbooks to account for the October 1998 Ecuador-Peru Peace Accord.
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That Accord recognized that Ecuador enjoyed the right to access and freely navigate the
Amazon River, whereas Ecuadorian history books up to that point had claimed the Amazon
River was within Ecuador’s borders. Although my proposal was not very popular, I believed
that history textbooks needed to be updated to reflect the reality established in the Peace
Accord.
14. I have received two public recognitions for my service to the Republic. In 1984, President
Hurtado awarded me the Great Cross of Order and National Security for my work as Minister
of Government and Police, as discussed above. In 1999, I was decorated with the National
Order of Merit, in the degree of Great Cross, by President Mahuad for my role in ending the
border dispute with Peru that dated back to the sixteenth century. I had been appointed to
serve on a national commission as part of the Ecuador-Peru negotiations that addressed
matters related to commerce and navigation on the Amazon River. The commission’s work
was vital to the signing of the aforementioned 1998 Ecuador-Peru Peace Accord. In addition,
in 1997, and again in 1998, I was named by two different Foreign Ministers to serve as a
member of the Advisory Board on Foreign Relations.
Academic Posts
15. In addition to my public service, I have also held several academic positions. Shortly after
obtaining my law degree, I was a professor of Political and Social Science at the Catholic
University of Guayaquil. I thereafter joined the faculty of the Law School at the Catholic
University of Guayaquil, serving as a professor of Tax Law for 30 years. In 1978, I served as
the Law faculty’s representative on the University Council of the Catholic University, which
addressed pedagogical and curriculum issues.
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16. From 1980 until 1996, I was thrice elected Dean of the Law School by my faculty colleagues
and by student and staff representatives. In my capacity as Dean, a position I held for six
years, I was responsible for overseeing academic and administrative issues, which included,
among others, appointing new professors and promoting the use of computer technology.
Specifically, I initiated a program to digitize the Civil Code in order to make it more
accessible by students and professors.
17. In 1996, I became the President of the Catholic University of Guayaquil—a position I held
for five years. I was elected by faculty members and representatives of the students and
workers from the entire University. I had final say over all academic, administrative, and
budgetary issues at the University, which had over 7,000 students at the time.
18. In 1997, while serving as the President of the University, I was named president of a
commission created by the National Council of Ecuadorian Universities to improve the
academic level and to promote academic research in Science and Technology.
19. In addition to my posts at the Catholic University of Guayaquil, beginning in 1973 I was a
professor of Budget Management at the Naval War Academy for five years. In 2008, I was
named an Honorary Professor by the Naval University. And in February 2010, the
Equinoxial Technological University (UTE) of Quito named me Professor Emeritus in
recognition of my efforts to coordinate and promote scientific studies among several
universities during my tenure as President of the Catholic University of Guayaquil and
Minister of Education.
Professional Career
20. I presently am a practicing attorney specialized in Corporate Law. For many years, I have
overseen various trials as a lawyer for both plaintiffs and defendants, and I currently
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supervise the court work of several attorneys under my control, as well as design the defense
strategy in various proceedings of interest to my clients. I am a legal advisor for various
entities, companies, and individuals. I was invited to join the list of arbitrators of the
Arbitration and Mediation Center of the Guayaquil Chamber of Commerce, and I have acted
as Arbitrator in multiple arbitrations within the Ecuadorian constitutional and legal system of
alternative conflict resolution. I also serve as an Arbitrator under the Ecuadorian section of
the Inter-American Commission of Commercial Arbitration (CIAC).
21. Throughout my professional career I have studied the political, governmental, and legal
developments in Ecuador. For over 18 years I have been expressing my opinion as a
columnist on legal and political matters in Guayaquil’s El Expreso newspaper. Additionally,
for over the past five years, I have regularly written an editorial column for the Quito
newspaper Hoy.2
22. My writings, in addition to covering political issues, have focused on analyzing the Judiciary,
the adherence to the rule of law, and the separation of powers in Ecuador. For example, I
have written that, “for a country to be considered democratic and be governed by Law, it is
not enough to have popular elections; it is necessary that everyone, rulers and subjects alike,
obey, uphold and respect the Constitution and all the laws that establish rights, freedoms,
guarantees, duties, obligations, functions, powers, prohibitions and responsibilities.”3
Specifically, I have long maintained that “[i]t is essential that the independence and a delicate
functional and political balance of [the three] branches be maintained,” and that “no branch
2 See, e.g., Political Reform, HOY, July 10, 2005 (a true and correct copy is attached as Exhibit 5); Guaranteeing Investment, EXPRESO, Feb. 23, 2006 (a true and correct copy is attached as Exhibit 6); Law and Contracts, HOY, Apr. 2, 2006 (a true and correct copy is attached as Exhibit 7). 3 Godless…and Lawless, EXPRESO, Oct. 5, 2006 (a true and correct copy is attached as Exhibit 8).
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of the State may interfere with the exercise of the duties and powers of the other branches.”4
Accordingly, I have argued that the Government should “maintain the independence of the
institutions responsible for administering justice, strengthen their structures, promote the
development and the long-term training of their members, so that, protected by the legal
framework, they would not be vulnerable to any sort of pressure or threat . . . from anyone!”5
In 2007, before my opinion was first solicited by Jones Day, I expressed my concern that,
under the administration of President Rafael Correa, “an attempt is being made to take
control and command of the courts and tribunals and of justices, prosecutors and judges,”
noting that some politicians “threaten [judges], intimidate them, offer to destroy them . . . so
that they will rule in their favor, or recuse themselves from their cases.”6
23. The opinions I express in this report are based on my 41 years of experience as a practicing
lawyer and public official in various governments in Ecuador. Additionally, I review multiple
news sources, including newspapers, television, and radio as well as the Internet, on a daily
basis, all of which served me in the writing and criteria issued in this report. In particular, I
rely on the sources listed in Exhibit 132.
SUMMARY OF CONCLUSIONS
24. In my report of September 2010 (hereinafter the “September 2010 Report”), I asserted,
among other conclusions, that regardless of how many reforms are made to the Constitution
or the laws, if those in power and politicians do not stop influencing or interfering in the
4 A Congress of One’s Own, HOY, Mar. 25, 2007 (a true and correct copy is attached as Exhibit 9); Democracy in appearances only, EXPRESO, Mar. 17, 2005 (a true and correct copy is attached as Exhibit 10). 5 Justice Subjected, EXPRESO, Mar. 31, 2005 (a true and correct copy is attached as Exhibit 11). 6 Justice Threatened, EXPRESO, June 28, 2007 (a true and correct copy is attached as Exhibit 12).
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decisions of the Courts and Tribunals, the fact that the Judicial Branch in Ecuador is
institutionally weak will not change.7 Now, I confirm my opinion from the September 2010
Report, that there is no independence in the administration of justice, because of the
continuous violation of the rule of law by political actors, aimed at interfering with the work
of the Judicial Branch through constant pressure tactics, threats, and enticements that
influence judicial decisions.
25. In addition to the relevant events described in my September 2010 Report, subsequent events
further confirm that the lack of independence in the administration of justice in Ecuador has
become even more severe. There is additional interference in the Judicial Branch by the
Executive and other branches of state and by other social forces.
26. On May 7, 2011, there was a referendum and popular vote called by the present
Administration with the principal purpose of completely reorganizing the Judicial Branch
through a transitional commission under the majority control of the Executive Branch.
President Rafael Correa’s proposals were ultimately approved in the referendum. Thus, the
practical effect is that in the future the Administration will have even greater control over
judges and justices.
27. The Executive Branch has maintained a political strategy of intimidating judges and justices
under the threat of losing their posts, in trials in which the Administration or its political
allies may have an interest. In those cases in which these judges may have issued rulings that
are objectionable according to the Administration’s position, complaints and charges have
been filed against them by orders of President Correa and other members of his
Administration, with the aim of having them sanctioned by suspension or dismissal. 7 September 2010 Report ¶ 87 (Tab A).
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Obviously, the goal is that the judges who are named as replacements may be willing to
support the Administration’s objectives. All of this, in addition to public charges of judicial
corruption, has caused serious mistrust in the administration of justice due to the lack of
independence and judicial stability.
28. President Correa also continues to take concrete steps to curb freedom of expression and to
regulate the media. To this end, he has filed many lawsuits against the media and journalists,
and the referendum included a question whose affirmative answer requires the National
Assembly to issue a law to regulate the press, which creates a serious danger of greater limits
on the freedom of the press.
29. Additionally, as a consequence of a police and military protest that occurred on September
30, 2010, there have been new manifestations of President Correa’s eagerness to concentrate
his power and to manipulate the courts. The President has personally filed and is pressing for
trials against officers and enlisted members of the National Police on charges of alleged
kidnapping, a coup conspiracy, and attempted assassination against him. In trials where the
judges entrusted with hearing these cases have acquitted the defendants and set aside the
President’s charges, the judges themselves now face legal action by the Minister of Justice.
30. It is clearly proven that in those cases where the Administration has some interest or makes
some statement regarding what is fair or not in a trial, the judges hearing those cases see their
impartiality and rulings seriously compromised, due to the threat of losing their posts, or
even more so, being tried under any accusation or pretext.
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ANALYSIS
Referendum and Popular Vote of May 7, 2010
31. In my September 2010 report, I stated that, “President Correa’s Administration is . . .
preparing a full-scale reorganization of the Judicial Branch.”8 That decision to reorganize the
Judiciary has been reaffirmed and continues to develop, even more so after the approval of a
referendum proposed by President Correa regarding the establishment of new procedures for
appointing the body charged with naming, supervising, and removing judges.
32. General concerns over safety conditions have been growing recently due to crime in many of
Ecuador’s cities. The official response to the increased crime rate was to state that judges and
courts are to blame for the unsafe conditions and crime, and that therefore many judges
should be in jail.9
33. Specifically, President Correa has argued that “[t]he justice system is a mess[;] [s]ociety
should step in democratically . . . to fix that mess,”10 and has asked, “[h]ow much longer will
we allow the negligence, the corruption in the Judiciary, which has become completely
perverted, to continue to thwart the efforts, the sacrifices of the work performed by police
officers.”11 Elsewhere, he has affirmed that “[n]ow the judicial system is politicized. We’re
going to depoliticize it.”12 Members of his Administration have echoed these statements.
Ricardo Patiño, Minister of Foreign Affairs, recently stated to CNN that “the judicial system 8 Id. ¶ 67. 9 See President denounces judges’ actions, EL TELÉGRAFO, Dec. 12, 2010 (Exhibit 133); 540 Judicial officers removed [from office], EL DIARIO, Sept. 5, 2010 (Exhibit 134). 10 Society Should Intervene In the Judicial System – It’s a Mess, EL CIUDADANO, May 4, 2011. 11 The President of the Republic says the Justice System requires an immediate overhaul, ANDES, Mar. 2, 2011 (Exhibit 136). 12 Ecuador: The President states that referendum will help depoliticize the judicial system, EL CIUDADANO, Apr. 21, 2011 (Exhibit 137).
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in this country is inefficient and corrupt” where there are “judges . . . who submit to earlier
political appointments and who don’t apply the law in our country.”13 The Correa
Administration has thus domestically branded Ecuador’s Judiciary as corrupt, ineffective,
and inadequate. While it is correct in acknowledging the corruption in the Judiciary, its
response to date has not been a serious attempt at a solution, but instead has been to use the
acknowledged judicial corruption as an excuse to consolidate Executive power over the
Judicial Branch by controlling judicial appointments and removals.
34. Considering that any measure that purportedly would combat corruption and help bring down
the crime rate in Ecuador would inevitably be popular, President Correa’s Administration by
June 2010 already had a plan, with the pretext of fighting crime, “to take over the country’s
courts of justice,” according to the President of the Court of Justice of Guayaquil, María
Leonor Jiménez.14
35. In early 2011, President Correa asserted the need to hold a referendum with the purpose of
getting “to meddle with the Judiciary.”15 Beyond attempting to fight crime by stiffening
penalties through reforms to the Criminal and Procedural Codes, President Correa proposed
mainly structural changes to the Judicial Branch, in order to allow him to intervene in
appointments, operations, and removals in all courts and tribunals (civil, commercial, labor,
tax and others), not just the criminal ones.
36. On January 17, 2011, in an official letter, President Correa notified the President of the
Constitutional Court of his proposed amendments to the Constitution of the Republic through
13 Ecuador criticizes court ruling concerning the attempted coup d’etat, CNN MEXICO, May 17, 2011 (Exhibit 138). 14 September 2010 Report ¶ 61 (Tab A). 15 Judicial Reorganization Goes from Bad to Worse, HOY, Jan. 10, 2011 (Exhibit 139).
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a referendum, as well as a popular vote on other issues.16 As explained below, this
referendum and popular vote were approved by the Ecuadorian people.
37. The proposed referendum contained a total of ten questions. The first five referendum
questions focused on amendments or reforms to constitutional and legal texts, principally on
preventive pre-trial detention, as well as the membership and function of the Judicial
Council. The last five (questions six through ten) proposed, among other things, the creation
of a Regulatory Council for media content, and the establishment of prohibitions and
restrictions on gambling and bullfighting.17
38. Among the first five questions, two directly impacted the structure of the Judicial Branch.
Referendum question four proposed substituting the current full Judicial Council of nine
members (established in the 2008 Constitution) with a Transitional Judicial Council,
comprised of three members appointed, respectively, by the Executive, Legislative, and
Transparency and Social Control branches.18 Under the 2008 Constitution, the functions of
the current Judicial Council include leading the selection process for judges and judicial
officials, as well as their evaluation, promotion and sanctions, including removal.19 Question
four proposed that the new Transitional Council shall restructure the entire Judicial Branch
within an 18-month term.20
39. In turn, question five proposed modifying the composition of the current Judicial Council, by
amending three articles of the Constitution and twenty-three items in the Organic Code of the 16 Referendum regarding the judicial system, communication and death of animals, EL UNIVERSO, Jan. 18, 2011 (Exhibit 140). 17 2011 Referendum Notice, Republic of Ecuador, National Electoral Council (Exhibit 141). 18 Id. at 5. 19 Constitution of the Republic of Ecuador, Article 181, Number 3 (Exhibit 142). 20 2011 Referendum Notice, p. 5, Republic of Ecuador, National Electoral Council (Exhibit 141).
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Judiciary, as well as by deleting fourteen items of the Organic Code.21 According to the 2008
Constitution, the Citizen Participation and Social Control Council should have named
members of the Judicial Council through a public merit and examination selection process
from candidates nominated by civic organizations.22 By changing the procedure, the
referendum proposed the formation and operation of a permanent Judicial Council composed
of only five members, who must be elected by the Citizen Participation and Social Control
Council from lists submitted by the “President of the National Court of Justice . . . by the
Prosecutor General, by the Public Defender, by the Executive Branch and by the National
Assembly.”23
40. Thus, after the Transitional Judicial Council has named and removed judges, courts, and
tribunals within the term established by question four, the permanent Judicial Council (made
up of five members) will exercise the powers granted to it by constitutional provisions
according to question five.24
41. President Correa has, as noted, publicly expressed his intent “to meddle with the Judiciary.”25
Independently of the merits or reasons that may be considered for appointing or removing
judges, questions four and five have the obvious effect of strengthening the Executive’s
control over the Judicial Branch.26 In practice, the three members of the Transitional Judicial
Council will be appointed by State bodies comprised of a pro-Administration majority, and 21 Id. 22 Constitution of the Republic of Ecuador, Article 208, Number 12 (Exhibit 143). However, to present the constitutional mandate has not been complied with, and the members of the Judicial Council continue to work in a provisional fashion. 23 2011 Referendum Notice, p. 5, Republic of Ecuador, National Electoral Council (Exhibit 141). 24 Id. 25 Judicial Reorganization Goes from Bad to Worse, HOY, Jan. 10, 2011 (Exhibit 139); see also The big loser of the referendum is the lie, PP EL VERDADERO, May 14, 2011 (Exhibit 144). 26 The Government’s proposal seeks to control the judicial system, EXPRESO, Jan. 19, 2011 (Exhibit 145).
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they will be vested for eighteen months with full authority to appoint and remove all judges,
including civil and criminal judges.27
42. Once this transitional restructuring is complete, the permanent Judicial Council will be
appointed in a process that gives bodies controlled by the President greater possibilities to
exert influence.28 To justify that, President Correa has complained in public statements that
the Judicial Council is not fully carrying out its functions given the difficulty of achieving
agreement within a nine-member body, some of whom have had public disagreements among
themselves.29 With this pretext, he proposed in the referendum the provisional substitution of
its members with only three members appointed by a commission over which he could in
practice have a deciding influence,30 and through which he would likely have such deciding
influence over the entire judicial system.
43. In light of President Correa’s request to the Constitutional Court for its approval to call the
referendum, the court named Constitutional Judge Nina Pacari to prepare a report on the first
five questions proposed by the President for a referendum. Dr. Pacari is an indigenous leader
who served as a Minister of the State.
44. After holding several hearings on the subject, Dr. Pacari presented her report asserting that in
order to amend the Constitution in the manner proposed by the five referendum questions, a
new Constituent Assembly must be held, and not a popular vote.31 She opined that questions
four and five should be eliminated from the referendum, because they were aimed at altering 27 2011 Referendum, EL UNIVERSO, Apr. 12, 2011 (Exhibit 146). 28 Id. 29 New Structure and Makeup for the Judicial Council, EL UNIVERSO, Apr. 1, 2011 (Exhibit 147). 30 Go-ahead for AP delegate in the Judiciary with divided opposition, EL UNIVERSO, June 3, 2011 (Exhibit 148). 31 With changes, the Constitutional Court cleared the referendum and the popular consultation, EL UNIVERSO, Feb. 16, 2011 (Exhibit 149); Herrera issued his report and avoided the press, EL UNIVERSO, Feb. 16, 2011 (Exhibit 150).
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the fundamental structure of the Constitution and the nature and composition of the State,32
given that it allows the Executive and Legislative Branches to intervene in the selection,
administration and dismissal of judicial officers, entailing a loss of judicial independence.
45. During a Plenary session of the Constitutional Court on February 15, 2011, to reach a
decision, a new report appeared unexpectedly, presented by Constitutional Judge Patricio
Herrera.33 This report proposed to authorize the procedures for carrying out the vote
proposed by President Correa, with respect to both the referendum and the popular vote, with
only minor modifications to the phrasing of the questions.34 According to press reports,
Judge Herrera’s report was drafted by a team of young attorneys who are not part of the
Constitutional Court.35 The Court set aside Dr. Pacari’s report, and approved Judge Herrera’s
report,36 without observing the limitations established by the Constitution with respect to the
proper procedure for constitutional amendments or modifications, which were highlighted in
Dr. Pacari’s report.37 Regarding the approval issued by the majority of the Constitutional
Court, Dr. Pacari stated “that this decision is political and does not meet any legal-
constitutional criteria.”38
32 Id. 33 The report that replaced Pacari’s, HOY, Feb. 23, 2011 (Exhibit 151); Herrera issued his report and avoided the press, EL UNIVERSO, Feb. 16, 2011 (Exhibit 150). 34 Judgment of the Constitutional Court, EL UNIVERSO, Feb. 16, 2011 (Exhibit 152). The Court ordered the elimination at the beginning of all the questions of the phrase that President Correa included that induced the voters to respond affirmatively. 35 The report that replaced Pacari’s, HOY, Feb. 23, 2011 (Exhibit 151). 36 With changes, the Constitutional Court cleared the referendum and the popular consultation, EL UNIVERSO, Feb. 16, 2011 (Exhibit 149). 37 Id.; Herrera issued his report and avoided the press, EL UNIVERSO, Feb. 16, 2011 (Exhibit 150). 38 With changes, the Constitutional Court cleared the referendum and the popular consultation, EL UNIVERSO, Feb. 16, 2011 (Exhibit 149).
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46. The National Electoral Council, responsible for organizing elections and declaring their
results, decided that the referendum and popular vote would take place on May 7, 2011.39
47. The Administration also took advantage of the Judiciary’s poor reputation to promote the
“yes” vote in the referendum to strengthen its control over that branch.40 On April 11 of this
year, the National Assembly, at the request of congressional representatives belonging to the
pro-Administration block of Alianza País, requested an impeachment process against the
existing members of the Judicial Council.41 During the hearings, accusations were presented
on various cases of corruption, influence peddling, conflicts of interest, pressure on judges to
have them rule in favor of certain people in cases they were hearing, and in general failure to
fulfill their duties in the Council.42 These hearings thus offered further evidence of the
serious problems in the Judicial Branch.43 This process, which ended without any censure
whatsoever shortly before the May 7 referendum, served the Administration’s ends by
promoting the popular opinion that the Judicial Council had to be restructured under the
control of the Correa Administration.44
48. As a consequence of these efforts, the result of the referendum, according to the National
Electoral Council on May 19, 2011, was that 47 percent voted “yes,” 41 percent voted “no,”
39 See National Election Council (CNE) forbids all advertising with State funds, EL UNIVERSO, Mar. 2, 2011 (Exhibit 153). 40 President Correa also made multiple concessions to various sectors of society, like raises for the police and military in the days prior to the election. Police and Military Wages Raised on Eve of Referendum, ECUADOR
ECUATORIANO, May 6, 2011 (Exhibit 154). 41 Case Against the Judiciary Underway, EXPRESO, Apr. 11, 2011 (Exhibit 155). 42 Impeachment proceedings for members of the Judicial Council begin, CONFIRMADO, Apr. 11, 2011 (Exhibit 156); The Plenary National Assembly concluded the impeachment proceedings for Judicial Council members, CONFIRMADO, May 12, 2011 (Exhibit 157). 43 Id. 44 Case Against the Judiciary Underway, EXPRESO, Apr. 11, 2011 (Exhibit 155).
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and 12 percent abstained.45 Despite several challenges brought before the Electoral Dispute
Tribunal,46 President Correa began preparing reforms to change the structure of Judicial
Branch.47
49. Several legal commentators and judges, and even members of the National Assembly have
expressed and continue to express concern about interference in the administration of justice.
Luis Quiroz, President of the Second Criminal Chamber of the National Court of Justice
stated the President wants “to control his Court, to have his judges. Mr. President wants his
Court.”48 Also, Gen. Paco Moncayo, Quito’s former mayor and current Assemblyman, said
that, “[w]ith the referendum, the Executive wants to have its way with the Judiciary. This is
unconstitutional and violates the separation of State powers and would end the institutional
order. This is dangerous and intolerable.”49
50. In short, the referendum proposals on the restructuring of the Judicial Branch likely will not
in practice be effective in fighting corruption and crime. Instead, their principal objective is
to secure a greater concentration of power in the Executive, by violating the independence of
the Judiciary and, as some have pointed out, to have greater influence in the other branches
of state.50 As a result of the changes sought by the Administration with the referendum, the
job stability of judges currently depends, and will depend in the future, on whether the three
45 Out of every 100 voters, 47 said Yes, 41 said No, and 12 didn’t opine, EL UNIVERSO, May 20, 2011 (Exhibit 158). 46 Id. 47 Correa outlines his plan to change the Judiciary, EXPRESO, May 12, 2011 (Exhibit 159). 48 “President wants his Court,” HOY, Jan. 19, 2011 (Exhibit 160). 49 “Wants to Have its Way with the Judiciary” – Paco Moncayo, EXPRESO, Jan. 19, 2011 (Exhibit 161); see also Fabián Corral B., The limits of majorities, EL COMERCIO, June 6, 2011 (Exhibit 162). 50 Luis Almeida: ‘With a win, Correa will control the country like a plantation,’ EL UNIVERSO, Mar. 25, 2011 (Exhibit 163).
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members of the Transitional Judicial Council consider them “good” or not.51 This does not
necessarily mean that the President will directly order the judges on how they should issue
every ruling and judgment, but clearly it does entail a strong influence on judges in cases in
which the Administration has an interest—which would confirm an increased dominance of
the Executive Branch over the Judiciary.
Judicial Instability
51. The recent referendum is additional proof of President Correa’s desire to interfere with the
independence of the Judicial Branch and to reject the rule of law. For many years, as I noted
in my September 2010 Report, the administration of justice has been affected by political and
social influences on judges and has worsened during the current Administration, as
confirmed by subsequent events.
52. For example, in November 2010, the President of the Superior Court of Guayas, Dr. María
Leonor Jiménez, publicly stated that in many cases there is a “crude manipulation” through
the appointment of provisional and temporary judges who are there only two or three days
“until the trial that interests [those who have appointed them] is resolved.”52 She also stated
that when a judge is not compliant or does not obey, he is then intimidated under any pretext.
Dr. Jiménez, a judicial officer for 26 years, also acknowledged that “I have never seen the
independence of the Judiciary reduced to such truly alarming levels as now.”53
51 “All good judges are going to stay,” according to Alexis Mera, ECUADOR EN VIVO, May 2, 2011 (Exhibit 164). 52 According to Jiménez, the Judiciary Council should disappear, EXPRESO, Oct. 10, 2010 (Exhibit 165). 53 Id.; Judges’ Independence, EL UNIVERSO, Nov. 4, 2010 (Exhibit 166); Frente Popular: “Correa is manipulating the justice system,” RTU NEWS, Nov. 9, 2010 (Exhibit 167) (“The Ecuadorian judges in charge of administering justice have their eyes blindfolded and their mouths gagged; they only have ears to hear the orders of Rafael Correa....”); Modernization and Depoliticization, EXPRESO, Aug. 26, 2010 (Exhibit 168); Escala says the judicial system remains hijacked by the government, EXPRESO, Nov. 9, 2010 (Exhibit 169).
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53. A particularly brazen example of that interference is the Administration’s official policy to
intimidate judges by holding them personally liable for certain rulings against the state. By
order of President Correa, the President’s Legal Counsel Dr. Alexis Mera, issued an official
letter on November 18, 2010, giving the Ministers and Secretaries of State the instruction that
“a suit for damages must be filed immediately against the judge” whose trial-level ruling
against the State caused the “suspension or delay of the public work,” and whose ruling was
later revoked on appeal and had harmed the State with his initial ruling.54 The result of this
policy may lead trial judges not to run the risks of having their decisions overturned on
appeal, thus avoiding issuing rulings against the State.
54. Additionally, multiple complaints or allegations against some judges have been routinely
filed in recent years before the Judicial Council,55 in some cases, to intimidate them. But
also, since 2010, many of these accusations against judges for alleged irregularities in the
administration of justice have been filed with the Judicial Council on behalf of President
Correa by the Minister of Justice.56
55. One specific case of sanctions on a judge for ruling against the interests of the State was a
90-day suspension of duties imposed by the Judicial Council on Criminal Rights Judge of
Guayas, Oswaldo Sierra.57 This sanction was a response to a complaint filed by the state-
owned National Telecommunications Corporation against this judge for having issued a
preliminary injunction in favor of ZTE Corporation, which had asked that a bidding process
54 Official Circular No. T1.C1-SNJ-10-1689, by Alexis Mera Giler, Legal Counsel to the Office of the President of the Republic, Nov. 18, 2010 (Exhibit 170). 55 540 Judicial officers removed [from office], EL DIARIO, Sept. 5, 2010 (Exhibit 134). 56 Id. 57 Judiciary suspends judge Sierra, EL UNIVERSO, May 20, 2011 (Exhibit 171).
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to acquire a telecommunications network be suspended.58 Notably, this judge was also
hearing the lawsuit filed by President Correa against El Universo newspaper.59 Furthermore,
Judge Sierra, who also chaired the Cámara de Jueces (a judges association), signed, along
with other judges and judicial associations, a document rejecting the call for a popular vote,
as they believed it affected the independence of the Judicial Branch.60
56. President Correa and members of his Administration continue making statements and public
comments that seriously affect the credibility of judicial institutions. One of the many cases
is the statement by President Correa, on November 30, 2010, indicating that in the Judicial
Branch “[t]here are mafias there, judges that are political appointments . . . .”61 Statements
and comments like these provoked a reaction of all the justices of the National Court of
Justice who stated their “energetic rejection” of any interference in the Judicial Branch as
well as the intimidating statements against judges and their rulings.62
57. The criticism by President Correa about the politicization of the Judicial Branch is ironic,
given that he himself politicizes those bodies, an example of which is the enormous influence
he has over the Constitutional Court, which has become a very powerful entity currently with
a largely pro-Administration membership.63 This is reflected in that the Court has ruled in
favor of the Administration in the majority of the cases brought against the Administration,
including rulings by the Court that declared unconstitutional several provisions of Bilateral 58 Id. 59 Id. 60 Id. 61 Executive will send the Assembly two amendments to the current Constitution, EL CIUDADANO, Nov. 30, 2010 (Exhibit 172). 62 Judges reject meddling in Judicial Branch, EL UNIVERSO, May 27, 2011 (Exhibit 173). 63 With changes, the Constitutional Court cleared the referendum and the popular consultation, EL UNIVERSO, Feb. 16, 2011 (Exhibit 149).
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International Treaties of reciprocal protection of investments signed between Ecuador, the
United States and other countries.64 Another controversial case is the recent approval of the
procedure for the referendum, as discussed in paragraph 45 of this report.
58. Accusations of corruption are common in the Judicial Branch. For example, there is a recent
prosecutorial investigation over alleged bribes made for judicial appointments. In this case,
several people have been arrested and charged, among them, two judges and several judicial
officers, in whose hands the police found payment worth $20,000 as a down payment, and
evidence that $480,000 would be paid at a later date, supposedly in exchange for those
posts.65 According to the Justice Minister, José Serrano, the judicial officers represented
other justices who could also be involved in those illegal dealings.66 The amount of money
mentioned in this case gives rise to conjecture as to what those who were seeking
appointment to those judicial positions would have been capable of doing in the exercise of
their duties in order to recoup such a high cost.
59. All the events related in this report have deepened the mistrust of citizenry in general
regarding the justice system in Ecuador, regarding its justices and judges, and their
independence in making rulings.
60. In the light of this and other events, independent commentators affirm that the rule of law is
not respected in cases which have become politicized. One case that we highlight is the
64 Executive asked the Assembly to approve the notice of termination of two treaties, with China and Finland, due to unconstitutionality, AsambleaNacional.gov.ec, Aug. 17, 2010 (Exhibit 174); Constitutional Court (CC) declares three articles of Treaty with the United States unconstitutional, HOY, Jan. 13, 2011 (Exhibit 175). 65 Prosecutor General’s Office inspects the location of the presumed bribery, EXPRESO, May 20, 2011 (Exhibit 176); Rumbea’s attorney denies charges, EXPRESO, May 20, 2011 (Exhibit 177); The Prosecutor General’s Office catches two judges in the act, EXPRESO, May 12, 2011 (Exhibit 178); Judges arrested for bribery had already been under investigation for weeks, EL UNIVERSO, May 14, 2011 (Exhibit 179); The Prosecutor General accused two judges of bribery, EXPRESO, May 13, 2011 (Exhibit 180). 66 The Prosecutor General’s Office catches two judges in the act, EXPRESO, May 12, 2011 (Exhibit 178).
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commentary of Orlando Alcívar Santos, a respected lawyer and analyst who writes on legal
and social issues. On March 4, 2011, in El Universo, he wrote: “[i]f legal certainty is further
broken, after the multiple violations it has suffered in recent years, the country must pay a
very high price in order to return to having a certain degree of trust . . . .”67 Another example
is the article written by Dr. Juan Falconí Puig in which he says, “we could say today that
certain judges treat Ecuador and its justice system like a ‘banana republic,’ in which the law,
the force of law, and the legal principles to enforce justice are worth nothing when it comes
to auctioning court decisions . . . .”68
Attacks against the Press
61. As part of the Administration’s eagerness to concentrate all the State powers in President
Correa under a constitutional facade, the Administration continues its efforts to regulate the
press.
62. President Correa has declared the independent press and journalists to be his political
enemies, and he has discredited them in the worst terms. He has used pressure tactics that
ultimately succeeded in removing highly regarded interviewers from their jobs at television
stations that criticized the Administration, and that also led to prosecution, persecutions and
aggressions against many reporters and journalists.69 There are so many cases that the
International Freedom of Expression Exchange (IFEX) recently expressed its concern that
Ecuador has become one of the countries with the highest number of attacks against the 67 Orlando Alcívar Santos, Legal certainty, EL UNIVERSO, Mar. 4, 2011 (Exhibit 181). 68 Juan Falconi Puig, Justice adrift, HOY, June 10, 2011 (Exhibit 182). 69 In 2010, more than 100 were criticized in the addresses, EL UNIVERSO, Jan. 1, 2011 (Exhibit 183); 263 journalists attacked since 2008, HOY, Dec. 3, 2010 (Exhibit 184); Power silences critical voices in the media, EL UNIVERSO, Sept. 5, 2010 (Exhibit 185); Teleamazonas once again in Senatel’s sights, EL COMERCIO, Dec. 3, 2010 (Exhibit 186); President of Ecuador calls United States CNN network ‘corrupt’, EL UNIVERSAL, Oct. 30, 2010 (Exhibit 187); Silencing the private media, HOY, Oct. 12, 2010 (Exhibit 188); Correa says that the media should not be for profit, EL COMERCIO, Sept. 7, 2010 (Exhibit 189).
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media and journalists in Latin America.70 In a letter addressed to President Correa, the IFEX
urgently asked that he “halt the attacks and lawsuits against journalists and the media in
Ecuador.”71
63. The lawsuits filed against Emilio Palacio, the columnist of El Universo, for his criticism of
the Administration’s actions, are emblematic. In my September 2010 Report, I discussed the
criminal charges brought by the president of the National Financial Corporation, Camilo
Samán, against the columnist for an editorial comment.72 In this matter, there was a ruling
against the journalist, but the plaintiff later withdrew the charges, under the guise of
pardoning the defendant. For his part, President Correa recently filed new charges against
Emilio Palacio and some of the directors of El Universo, for alleged suffering or defamation
against the honor of the President, for an editorial column in which Palacio reported on the
President’s alleged lies.73 These charges seek not only to impose a criminal penalty, but also
financial compensation of up to $80 million.74
64. This is not a unique case. There have been other cases filed by the President for alleged
moral damages or injury to his honor against several individuals, which, according to press
calculations come to a total of approximately $500 million dollars.75 These trials are still on-
going without any final judgments.
65. Aside from the criticism, as I discussed in my September 2010 Report, President Correa
proposed a bill in the National Assembly to regulate and criminalize certain information or 70 Harsh letter to Correa regarding freedom of the press, HOY, June 2, 2011 (Exhibit 190). 71 Id. 72 September 2010 Report ¶ 79 (Tab A). 73 Emilio Palacio, NO to lies, EL UNIVERSO, Feb. 6, 2011 (Exhibit 191). 74 Judiciary suspends judge Sierra, EL UNIVERSO, May 20, 2011 (Exhibit 171). 75 Correa demands up to $500 million, EL UNIVERSO, Mar. 31, 2011 (Exhibit 192); Harsh letter to Correa regarding freedom of the press, HOY, June 2, 2011 (Exhibit 190).
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journalistic statements or reports that could affect the Administration’s actions.76 Public
opinion came to call this bill a “gag law,” and President Correa insisted on regulating the
media by including it as question nine of the referendum, after his bill, submitted in the
National Assembly, stalled as there was no consensus among the Assemblymen, mainly
because of debate over the creation of the Regulatory Council for the media, according to the
Speaker of the National Assembly, Fernando Cordero.77
66. With the approval of question number nine, the National Assembly now must issue “a
Communications Act creating a Regulatory Council to control the broadcasting and content
of television, radio and the written press that contain violent, sexually explicit or
discriminatory messages and establishes subsequent responsibility guidelines for the
broadcasting media or reports.”78 With the likelihood of a pro-Administration majority
controlling this Regulatory Council, the Administration would have substantial powers to
control the press, which would be the culmination of the Administration’s longstanding
efforts to institutionalize its control.
67. With the backing of the popular decree and the recent popular vote, President Correa is closer
to achieving a new legal instrument to restrict freedom of speech and the right and the duty
of the media to communicate, which the media has until now maintained in spite of cases of
trials and verbal and physical attacks on journalists.79
76 September 2010 Report ¶ 80 (Tab A). 77 Debate resumes on the Communications Act, HOY, May 21, 2011 (Exhibit 193); Jimmy Pinoargote, The debate over the Communications Act returns this week, AsambleaNacional.gov.ec, June 7, 2011 (Exhibit 194). 78 2011 Referendum Notice, p. 9, Republic of Ecuador, National Electoral Council (Exhibit 141). 79 263 Journalists attacked since 2008, HOY, Dec. 3, 2010 (Exhibit 184).
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68. All these actions by the Administration, while not actually imposing state regulation of
information or news analysis, tend to achieve a self-censoring of those journalists or media
who may fear subsequent consequences for their statements.
Aftermath of September 30, 2010
69. As a consequence of a police and military protest that occurred on September 30, 2010, there
have been new manifestations of President Correa’s eagerness to concentrate executive
power and to manipulate the courts.
70. As widely reported in the international press, on September 30, 2010, some units of the
National Police and Armed Forces of Ecuador stopped work in protest against a bill
promoted by the Administration that would eliminate or reduce their benefits.80 This protest
led to a personal appearance by President Correa at a police regiment in Quito. Following a
defiant speech to the troops and officials present there, the President was met with hostility
by some police officers and forced to flee to a nearby Police hospital.81 The Administration
organized a spectacular “rescue” in a military operation that resulted in a number of deaths.
71. The day these events took place, the Administration imposed limits on television and radio
outlets’ freedom to communicate, forcing through national news pools that they broadcast for
an indefinite period and without interruption, only the pro-Administration versions and
opinions of the serious events taking place. The Inter-American Press Society, while
condemning any attempt in Ecuador aimed at destabilizing institutions and the country’s
democratic order, also condemned the violation of the freedom of the press which occurred
when the Ecuadorian Government required the country’s television and radio stations to link
80 Correa: If you want to kill the President, kill me!, EL UNIVERSO, Oct. 1, 2010 (Exhibit 195). 81 Id.
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their signals to the State’s network.82 As a member of the National Assembly, Leonardo
Viteri, declared, “no freedom of the press was permitted—there was only one voice.”83 Any
person who attempted to contravene this limitation on the freedom of communication was
later prosecuted on various charges, such as attempts against state assets or property, or
unauthorized trespassing on government-owned property.
72. In response to these events, the President publicly declared on numerous occasions that there
was a conspiracy against him to mount a military coup, to kidnap and to assassinate him, that
the perpetrators and masterminds of that conspiracy should be tried and punished, and that
any judges who failed to order such punishment should also be condemned. Thus began a
judicial hunt against all police troops and officials84 and against all individuals the
Administration identified and is still identifying as responsible. Some lost their jobs and even
their freedom and are still in prison, although few people now believe that there was a
conspiracy, kidnapping or an assassination plot.85
73. One of these cases is that of the director of the hospital who gave refuge to President Correa,
Colonel César Carrión. In an interview with CNN, Colonel Carrión declared that on
September 30, 2010, President Correa was never kidnapped or prevented from leaving the
police hospital at any time, thus making the military rescue operation unnecessary.86 These
statements infuriated the President because they contradicted his version of the events of that
82 Inter-American Press Society (SIP) condemns destabilization attempt and asks for respect of freedom of the press, HOY, Oct. 1, 2010 (Exhibit 196). 83 ‘The only ones kidnapped were the media outlets,’ HOY, Oct. 1, 2010 (Exhibit 197). 84 30-S leaves 600 officers sanctioned to date, EL UNIVERSO, Nov. 10, 2010 (Exhibit 198). 85 Sanctions or jail for those criticized by Correa in broadcasts, EL UNIVERSO, Oct. 27, 2010 (Exhibit 199); Manuel Ignacio Gómez Lecaro, Stupid Idiot, EL UNIVERSO, Oct. 28, 2010 (Exhibit 200). 86 Carrión: I had authorization to tell CNN the truth, EL UNIVERSO, Dec. 2, 2010; (Exhibit 201); Justice in the end, VISTAZO, May 19, 2011 (Exhibit 202).
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day. He verbally accused Colonel Carrión of being a liar and filed a series of accusations
against him, stating that he was responsible for the alleged kidnappings and attempted
assassination.87
74. In spite of the President’s accusations against Colonel Carrión, Colonel Carrión has proven
through photographs and testimony, including by members of the presidential security detail,
that he was not guilty of the crimes the President accused him of committing.88 Therefore, at
the end of the criminal trial, the judge recently acquitted him and ordered that he be released
after he had been unjustly imprisoned for over seven months, as well as the release of other
members of the police force.89 As a result of the judge’s decision, President Correa has filed
an appeal. Additionally, he announced through his then Minister of Justice, José Serrano,
charges of procedural irregularities or possible criminal sanctions against the judge who
rejected the accusations that the President had filed against Colonel Carrión.90
75. Even now, President Correa insists that the judges, courts, and tribunals must qualify the
events of September 30th as highly serious crimes against national security and that they
should declare as guilty and punish those he names as responsible parties, despite testimony
to the contrary.91
76. Furthermore, the human rights defense organization Human Rights Watch has expressed its
concern about the excessive use in Ecuador of charges of “terrorism” against those who
87 Id. 88 Id. 89 Prosecutor General unable to prove coup or assassination attempt, EL UNIVERSO, May 29, 2011 (Exhibit 203); Justice in the end, VISTAZO, May 19, 2011 (Exhibit 202). 90 Ivonne Gaibor Flor, The Judge in the Carrión case is under threat of lawsuit, EXPRESO, May 14, 2011 (Exhibit 204). 91 Justice in the end, VISTAZO, May 19, 2011 (Exhibit 202); Carrión: I had authorization to tell CNN the truth, EL
UNIVERSO, Dec. 2, 2010 (Exhibit 201).
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participate in protests and demonstrations against the Administration.92 There are also
multiple cases of accusations for alleged crimes of “lack of respect,” in the face of alleged
insults to the President.93
CONCLUSIONS
77. These recent events in Ecuador confirm and strengthen the conclusions in my September 2,
2010 report. Given the events that I have discussed in this report, President Correa’s public
admission of his desire to “to meddle with the Judiciary,” as well as the referendum and
popular vote, there is no doubt that his main intent is to interfere with the independence of
the Judiciary. Furthermore, he is seeking to limit and gain control over the content of media
releases (press, radio and television).
78. He claims that he is doing this to improve its functioning, but this would result in a greater
concentration of power and a complete and absolute loss of the Judiciary’s independence,
which would place the Ecuadorian administration of justice in a much worse position where
it would be more susceptible to pressure tactics and threats.
79. One of the examples of the influence or interference by President Correa and his
Administration in the independence of the administration of justice is the lawsuit for
environmental damages filed by Maria Aguinda et al. against Chevron Corporation in the
province of Sucumbíos. In this case, even before there was a final, enforceable judgment,
President Correa publicly stated his support and sympathy for plaintiffs, their claims in the 92 HRW: Critics are hounded in Ecuador, EL UNIVERSO, Jan. 25, 2011 (Exhibit 205). 93 President will prosecute the person who shouted ‘Fascist’ at him en route, EL UNIVERSO, Mar. 4, 2011 (Exhibit 206). One example is of a university student leader, Marcelo Rivera, who participated in a public demonstration against the Administration, with some excesses. While no acts were committed against public safety or the stability of the Administration, he was still charged and tried for the crime of terrorism. Frente Popular: “Correa is manipulating the justice system,” RTU NEWS, Nov. 9, 2010 (Exhibit 167).
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proceeding, and the attorneys who represented them.94 It is likely that those statements by
President Correa may have affected impartiality of the administration of justice in this case.
80. In the circumstances of judicial instability, which were created by the current Administration,
a judge who wants to keep his job must, to gain favor, rule according to what the
Administration suggests under the risk of being sanctioned under any pretext, which has
happened in some cases.95 This would happen more so in this lawsuit where the
Administration, even without being a party, has a direct economic interest. This is because of
the risk that in this current controversy it could be Petroecuador, a state company, that would
have to finally assume responsibility for the environmental cleanup.96 Furthermore, the
Administration’s political interest in trying to recover the trust and backing of indigenous and
environmental organizations is evident. All of this detracts from the absolute reliability and
impartiality that should have existed in this case.
I declare under penalty of perjury that the foregoing is true and correct. I sign this affidavit in the
city of Guayaquil, Ecuador, on the 23rd day of June, 2011.
94 Correa accuses Texaco of causing irreversible damage in the Ecuadorian Amazon, EL UNIVERSO, Apr. 26, 2007 (Exhibit 207); Compensation paid by Chevron will be channeled into a trust fund, EL UNIVERSO, Feb. 16, 2011 (Exhibit 208); Correa says the judgment against Chevron in Ecuador must be respected, LA HORA, Feb. 19, 2011 (Exhibit 209); The Chevron Case: The Verdict on Contamination of the Amazon Draws Near, HOY, Sept. 5, 2009 (Exhibit 210). 95 September 2010 Report (Tab A). 96 Chevron requests that the state-owned company Petroecuador be included, HOY, June 1, 2011 (Exhibit 211).
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
