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Evidence in protective action proceedings: an
empirical analysis of selected proceedings by the
Constitutional Court (2019-2021)
La prueba en los procesos de acción de protección:
análisis empírico de los procesos seleccionados por la
Corte Constitucional (2019-2021)
Freddy Orlando Jiménez Tisalema
Independent legal researcher
City:
Ambato
Country:
Ecuador
José Luis Castro Montero
Universidad Central del Ecuador
City:
Quito
Country:
Ecuador
Original article (research)
RFJ, No. 12, 2022, pp. 69 - 107, ISSN 2588-0837
ABSTRACT
: This research focuses its analysis on the evidence, in
the processes of protection action given the absence of research
on the subject and the deficient regulation in the Organic Law
of Jurisdictional Guarantees and Constitutional Control. The
importance of the subject of the study focuses its evaluation
on the application of the different means of evidence, with
particular emphasis on the evidence collected by commissions.
The study aims to establish an argumentative position about
the right to defense and its scope in the processes of protective
action through the empirical analysis of all the processes of
protective action selected by the Constitutional Court between
2019 and 2021. The results of the quantitative analysis show
DOI 10.26807/rfj.vi.452
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that the evidence by the commission shows: that the most
common means of proof used at the time of filing or answering
a protection action are in the first instance: documentary 70%,
testimonial 13%, expert 7%, judicial inspection and evidence by
commission 0%, while, on the other hand, in 10% of cases no
means of proof were presented. Of the 91 sentences analyzed, 64
of them were appealed and heard in the second instance, from
which it can be concluded that in 61 cases, representing 94%
of the sample, no evidence was presented, while documentary
evidence, judicial inspection, and evidence by commission
represent 2% respectively.
KEYWORDS:
Evidence, jurisdictional guarantees,
argumentation, protective action, facts.
RESUMEN:
Esta investigación centra su análisis en la prueba,
en los procesos de acción de amparo dada la ausencia de
investigaciones sobre el tema y la deficiente regulación en
la Ley Orgánica de Garantías Jurisdiccionales y Control
Constitucional. La importancia del tema de estudio centra su
valoración en la aplicación de los diferentes medios de prueba,
con especial énfasis en las pruebas recogidas por las comisiones.
El estudio pretende establecer una posición argumentativa sobre
el derecho de defensa y su alcance en los procesos de acción de
tutela a través del análisis empírico de todos los procesos de
acción de tutela seleccionados por la Corte Constitucional entre
2019 y 2021. Los resultados del análisis cuantitativo muestran
que las pruebas por comisión demuestran: que los medios
probatorios más utilizados al momento de interponer o contestar
una acción de tutela son en primera instancia: la documental
70%, la testimonial 13%, la pericial 7%, la inspección judicial
y la prueba por comisión 0%, mientras que, por otro lado, en
el 10% de los casos no se presentó ningún medio probatorio.
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De las 91 sentencias analizadas, 64 de ellas fueron recurridas y
vistas en segunda instancia, de lo que se puede concluir que en
61 casos, que representan el 94% de la muestra, no se presentó
ningún medio de prueba, mientras que la prueba documental, la
inspección judicial y la prueba por comisión representan el 2%
respectivamente.
PALABRAS CLAVE:
Prueba, garantías jurisdiccionales,
argumentación, acción de amparo, hechos.
JEL CODE:
K4, D23.
INTRODUCTION
How is evidence announced, acted upon, and evaluated
in jurisdictional guarantees? What are the types of evidence
used in these processes? How does the regulation of evidence
in constitutional matters differ from that contemplated for
ordinary jurisdiction? How do constitutional judges apply the
rules of evidence in practice? How do the commissions that
gather evidence in jurisdictional guarantees operate? In this
article, we offer a systematic examination of these questions.
From the theoretical level, this analytical exercise
seems relevant to us insofar as the specialized literature shows
a void concerning evidentiary aspects in judicial proceedings,
especially notable in the case of jurisdictional guarantees. In
part, this is due to the incipient regulation that the Constitution
and the LOGJCC establish on the subject, in addition to the
still scarce jurisprudential development. To the best of our
knowledge, the present study would be the first to study,
based on empirical and quantitative analysis, the evidence in
protection action proceedings.
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In practice, it is commonplace to affirm that the
violation of rights is considered proven when the judge
considers that he is persuaded that it happened. According to
this system of free assessment, the only thing that matters is
the judge’s intimate conviction. This conviction, by the way,
is not always objective and controllable, but highly subjective
and sometimes even arbitrary. What is expected of any judicial
authority, however, is that it assesses the facts submitted to it
objectively. Its decisions -and as far as this article is concerned,
those that deal with evidentiary matters- are susceptible to
intersubjective control, both by the appellate courts, as well as
by the parties to the proceedings and by the public in general.
Hence the importance of analyzing the evidentiary regulation
necessary to prove the violation of constitutional rights.
To clarify the various evidentiary aspects in the
processes of jurisdictional guarantees, particularly those
related to the action of protection, we conducted a review of
the regulatory framework of the Constitution, the Organic
Law of Jurisdictional Guarantees, and Constitutional Control
(LOGJCC), and the jurisprudence issued by the CCE. Once
we discussed various normative aspects of the test, we
evidenced how the relative norms have been applied through
the quantitative analysis of 91 protective action processes.
Unlike most existing studies, our approach is based on the
empirical analysis of all cases of protective action selected by
the Constitutional Court of Ecuador (CCE) between February
2019 and June 2021.
The results show that the most common means of
evidence used at the time of filing or answering an action for
protection are in the first instance: documentary evidence
70%, testimonial evidence 13%, expert evidence 7%, judicial
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inspection and evidence by commission 0%, while, on the other
hand, in 10% of cases no means of evidence were presented.
Of the 91 sentences analyzed, 64 of them were appealed
and heard in the second instance, from which it is concluded
that in 61 cases, representing 94% of the sample, no evidence
was used, while documentary evidence, judicial inspection, and
evidence by commission represent 2% respectively. We highlight
the functioning of the evidence collected by commissions, which
in certain cases could even violate the due process in guaranteeing
the right to defense of the procedural parties.
1. THE REGULATION OF EVIDENCE IN JURISDICTIONAL
GUARANTEES
1.1. The evidentiary stages
The Constitutional Court of Ecuador (2013) also
conceives it as “the certainty or conviction that it provides,
being, strictly speaking, a sensible equivalent of the fact to be
assessed” (Decision No. 116-13-SEP-CC).
The evidentiary activity includes the following five
stages: collection, announcement, admissibility, practice, and
evaluation of the evidence (Guerrero, 2020), which we will
analyze below.
1.1.1. Compilation
The first of these, the compilation, is a generally
extra procedural stage through which the plaintiff, before
proposing his claim, investigates and gathers the evidentiary
elements necessary to support his claim. Article 10 numeral
8 of the LOGJCC establishes that the claim must contain “the
evidentiary elements that demonstrate the existence of an act
or omission that results in the violation of constitutional rights,
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except in those cases in which, by the Constitution and this law,
the burden of proof is reversed”. Hence, some authors consider
that there are no major differences between the collection
of evidence in ordinary justice processes and jurisdictional
guarantees processes (Guerrero, 2020; Quitana, 2016).
We differ with this criterion, as we find several
differences regarding the collection of evidence in ordinary
proceedings and jurisdictional guarantees. In the case of
jurisdictional guarantees, for example, Article 86 paragraph 3
of the Constitution provides that the judge “at any time during
the process may order the gathering of evidence and appoint
commissions to collect it”. Article 16, the second paragraph of
the LOGJCC, on the other hand, states that the judge may appoint
commissions to gather evidence during the “qualification of
the claim or at the hearing”. Both provisions establish that,
unlike what happens in ordinary judicial proceedings, in
which the collection is an activity carried out by the plaintiff
or the defendant, in jurisdictional guarantees, unipersonal or
peripersonal commissions, i.e., third parties, may be entrusted
with the collection of evidence.
Another difference lies in the fact that, in ordinary
proceedings, the collection of evidence is an eminently extra
procedural activity, which is generally carried out before the
filing of the lawsuit, in the case of the plaintiff, or before the
answer to the lawsuit, in the case of the defendant. In the
jurisdictional guarantees, on the other hand, the gathering of
evidence may be an intraprocedural activity that it occurs “at
any time during the process”, according to the Constitution.
It should be noted that the LOGJCC limits that constitutional
judge may appoint commissions, either in the qualification of
the claim or in the hearing. This appointment of commissions in
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charge of gathering evidence should not affect the due process
or delay the resolution of the case. We will analyze possible
affectations on the due process when we examine the practice
of the evidence gathered by the commissions in the second
section of the evidentiary means of this article.
From the review of the cases selected by the
Constitutional Court, in only 1 of 91 cases, equivalent to 1.09%
of them, the commission was used to collect evidence.
1.1.2. Advertisement
The second moment corresponds to the announcement
of evidentiary means, which refers to the proposal or
presentation of the evidentiary means that will be used
in a judicial proceeding. In jurisdictional guarantees, the
announcement of evidence may occur either: a) in the claim,
in the case of the plaintiff, b) is the answer to the claim, for
the defendant, or c) in the hearing, for both parties. This
differentiates the jurisdictional guarantees from other ordinary
judicial proceedings.
1
In the complaint, by the provision of Article 10 numeral
8 of the LOGJCC (2009), which establishes:
The complaint, at least, shall contain: (...) 8. The
evidentiary elements that demonstrate the existence
of an act or omission that results in the violation of
constitutional rights, except for those cases in which,
under the Constitution and this law, the burden of
proof is reversed.
1
In ordinary justice, the announcement is made in the acts of the
proposition, although some certain exceptions and circumstances enable
the announcement of evidence.
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If the opportune moment for the announcement of
evidence by the plaintiff is the complaint, it is logical to assume
that the defendant can do the same in the response to the same,
even though the LOGJCC does not expressly contemplate such
a possibility. As an exception to the rule of orality that operates
for the jurisdictional guarantees, the answer to the claim,
according to article 8 paragraph 2 literal c of the LOGJCC, must
be reduced to writing. This is without prejudice to the fact that
Article 14 of the Law establishes that the answer to the claim
must also be given at a hearing.
The announcement of the evidence, according to
article 16 of the LOGJCC, is also possible at the public hearing.
This is problematic for both procedural parties. In principle,
if the evidence is not announced in the lawsuit, but only at
the hearing: how is the right to defense and contradiction
guaranteed for those who do not know until that procedural
moment what evidence will be announced against them?
The General Organic Code of Proceedings (COGEP),
as a rule, proscribes surprise evidence, i.e., that practiced
without prior and timely announcement. The LOGJCC does not
pronounce on the matter. In this regard, we consider that in
cases in which the procedural parties announce new evidence
at a hearing and the same is admitted, the judge, at the request of
the party, must grant a reasonable period to the opposing party
for it to fully exercise its right to defense and contradiction.
Such a time limit may not be detrimental to the speedy and
informal nature of the jurisdictional guarantees.
According to the review of cases carried out,
the
announcement of evidence is mostly made in the complaint,
which relativizes the problem noted above. In 89 of the 89 cases
reviewed (equivalent to 98%), out of a total of 91, the plaintiffs
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announced evidence in their complaint, while in only 2 cases
(equivalent to just over 2%) the evidence was announced at
the hearing.
1.1.3.
Admissibility
The admissibility of
evidence comprises the acceptance
of a means within a judicial process (Devis Echandía, 1966, p.
85). Unlike ordinary justice, in jurisdictional guarantees, the
admissibility of
evidence depends only on its constitutionality
and relevance. Precisely, article 16 of the LOGJCC provides that
“
the reception of evidence shall be done only in a hearing and
the judge may only deny it when he or she has qualified it as
unconstitutional or impertinent”. In the ordinary justice system,
on the contrary, the judge must judge the admissibility of the
evidentiary means according to their relevance, conduciveness,
usefulness, necessity, and lawfulness.
The Constitutional Court has held that “the evidence
that should not be evaluated in a process of guarantees are those
that were obtained against the Constitution, that is irrelevant
or that impede the principle of contradiction” (Judgment No.
639-19-JP/20 and accumulated, para. 92). It is worth noting
that the Court adds as a principle of admissibility of evidence,
the contradiction, a matter that is not expressly established in
the law. In Judgment No. 1776-16-EP/21, the Court determined
the violation of due process because a public entity was not
duly notified and, consequently, could not exercise its right
to contradict the evidence. In this regard, the magistrate
stated: “although article 24 of the LOGJCC contemplates that
the Provincial Court must resolve the appeal “in the merit of
the file”, this does not prevent the parties in the protection
action to defend themselves and add the briefs they consider
to present in said procedural phase (...) it is observed that the
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impossibility that the ISSPOL had of knowing the processing
of the protection action due to the lack of notification of the
proceedings caused that it was unable to present the evidence
and arguments to be considered by the jurisdictional authorities
in the appeal”.
Now, the first principle of admissibility, the
constitutionality of the evidence, depends on whether its
production and practice are compatible with the constitutional
text. It would be inadmissible, for example, a statement of a
party taken under duress, threat, or torture.
The relevance of a means of evidence, on the other
hand, refers to the direct or indirect relationship between the
means of evidence and the fact in dispute in the proceeding
(article 161 COGEP). According to this principle, evidence that
tends to demonstrate the good conduct of one of the parties
to the proceeding would be irrelevant, when what is being
examined in a proceeding is a violation of constitutional rights.
The Constitutional Court (2019, in its judgment No. 1208-13-
EP/19, has stated that the principle of relevance:
Provides that the judge has the power to determine
when an evidentiary element requested by any of the
parties is not related either to the facts on which the
case was brought or to the law to be applied, in which
case the judge may deny or reject it as an element to
form his conviction, in a reasoned manner. (parr. 63)
Both constitutionality and relevance act as guiding
principles that limit the abusive evidentiary exercise of the
parties and avoid unnecessary delays.
In Ruling No. 687-13-EP/20, the Constitutional Court
further established: “questions concerning the admission
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of evidence (e.g., is this means of evidence valid?) involve
a qualitatively different judicial reasoning than questions
concerning the evaluation of evidence (e.g., what facts are
inferred from this means of evidence?): to answer the first type
of questions, one must argue whether or not the production
of a means of evidence has observed the rules that regulate
such production; while to answer the second type of questions,
one must argue about which facts can or cannot be considered
proven from legally admissible, i.e., valid, means of evidence”.
As Guerrero (2020) points out, it should be noted that:
In constitutional matters, there is no analysis of the
conduciveness of the evidence -that is to say, of the
aptitude of the means of proof to lead the judge to the
conviction of a certain fact- because there is freedom of
means of proof, that is to say, in matters of jurisdictional
guarantees there are no lags of assessed evidence.
Although we generally agree with this assessment, we
cannot fail to note that recent constitutional jurisprudence has
limited the evidentiary freedom of the parties, introducing
certain exceptions in which we appreciate the introduction of
the principle of conduciveness of evidence, even though this
principle is not expressly regulated in the LOGJCC.
We refer, in particular, to Judgment No. 679-18-JP/20.
679-18-JP/20, in which the Court established that the violation
of the right to access to medicines requires the demonstration
of the following elements: “(i) the disease diagnosed by a health
professional of the public sector and of the complementary
health network; (ii) the medical prescription of a medicine
within a treatment; (iii) the difficulty or impossibility to access
medicines; (iv) the information and free and informed consent
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of the patient to undergo the treatment based on medicines and
the purpose of the enjoyment of the highest possible level of
health; (v) the quality, safety and efficacy of the medicine by
an impartial expert person” (para. 35).
We say that this is a case in which the principle of
conduction is introduced and the evidentiary freedom of the
parties is limited because each of the elements that make up
the violation of the right to access medicines must be proven
through specific means of proof. For example, the Court itself
provides that the prescription of a medicine must be proven
through the epicrisis made by a physician of the Public Intra-
governmental Health Network, the informed consent must be
proven through the statement of the patient and the testimony
of experts, and the proof of the impartiality of the experts’
opinion must be made through an affidavit (Judgment No. 679-
18-JP/20, para. 237 to 244).
With this caveat, we agree with Guerrero (2020), when
he warns that in general, the informality of the jurisdictional
guarantees and the evidentiary freedom that should occur in
them is far from the systems of standardized evidence, that is,
“that in which the legislator predetermines the evaluation that
the judge must give to a certain piece of evidence” (Judgment
No. 2-14-IN and accumulated parr. 76).
1.1.4.
Practice
For Devis Echandía (1966), the practice of evidence
refers to “the procedural acts necessary for the various means
adduced or requested to be incorporated or executed in the
process” (p. 342).
The taking of evidence takes place in a hearing (art.
16 LOGJCC), although as Cevallos (2021) warns, the Law does
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not establish a specific evidentiary season for this purpose.
According to article 14 of the LOGJCC (2009):
The plaintiff and the affected person will have up to
twenty minutes to intervene and ten minutes to reply;
likewise, the entities or persons being sued will have
the right to the same time. If they are interested third
parties, and the judge authorizes it, they will have the
right to intervene for ten minutes.
In reality, it happens that judges have made these rules
more flexible and while the oral arguments are being made,
the evidence supporting the arguments of each party is also
presented -usually in a disorderly manner.
If the judge so considers, he may open the case to
evidence for a term of 8 days (art. 16 LOGJCC) and, exceptionally,
he may also extend the said term in case the complexity of the
evidence so warrants. In this regard, the Constitutional Court
has stated that “the rules of procedure regarding evidence in
jurisdictional guarantees consider the principles of speed
and efficiency that characterize these processes. Particularly,
the first paragraph of Article 16 of the LOGJCC specifies the
procedural moment for the practice of evidence, that is, at the
hearing...” (Decision No. 729-14-EP/20, para. 44).
In the same decision, the Court (2020) explained that
“in the second paragraph of Article 16 of the LOGJCC, the
exceptional possibility of opening an additional term for the
taking of evidence is established” (par. 45). Furthermore, the
Court (2020) concluded that:
The mere allegation of the failure to open an additional
evidentiary term in addition to the evidence that may
be presented at the hearing, without a justification
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explaining its necessity, does not allow for a finding of
a violation of a procedural rule or, therefore, of the right
to due process in the guarantee to present evidence and
contradict that which is presented against him. (par. 47)
In the second instance, the opening of a procedural
phase to propose and practice evidence is an ex officio power
of the judge. Article 24 of the LOGJCC (2009) itself provides
that “the Provincial Court shall take cognizance and decide on
the merits of the case file”. Likewise, the Constitutional Court
has repeatedly emphasized that the fact that the provincial
courts of justice, when resolving the appeal filed in processes
of jurisdictional guarantees, do not convene a hearing, “does
not constitute per se a violation of due process” (Judgment No.
1292-12-EP/19, par. 18).
The practice of evidence varies according to the means
of evidence, although it should be noted that the LOGJCC
does not regulate the specific way in which evidence is acted
in the processes of jurisdictional guarantees. Therefore, it is
necessary to apply the final provision of said law, which states:
“in all matters not expressly provided for in this Law, the
supplementary provisions of its regulations, in the (...) Code
of Civil Procedure (...) shall be applicable and compatible with
Constitutional Law” and to apply article 159 and following
of the COGEP as a supplementary source, as long as they do
not distort the simple, fast and efficient nature, provided for
in article 86.2.an of the Constitution, for the processing of
jurisdictional guarantees.
The Constitutional Court itself has stated that “to
determine the proven facts in a process of jurisdictional
guarantees, one must start from the rules of evidence provided
in Article 16 of the LOGJCC and, as far as it is compatible
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with the nature of the jurisdictional guarantees, the other
procedural principles established in the General Organic Code
of Proceedings (COGEP) and the Organic Code of the Judicial
Function” (Judgment No. 2936-18-EP/21, para. 42).
It should also be noted, as the constitutional magistracy
has pointed out, that “the evidence in the processes of
jurisdictional guarantees, unlike the civil, criminal, labor
and other processes, is governed by principles and rules that
are specific to them and characterize them” (Judgment No.
639-19-JP/20 and accumulated, para. 91). It is added that, in
constitutional proceedings, “greater flexibility is allowed in the
way of acting the evidentiary means, which are not common in
ordinary justice proceedings.
This is because the procedure in which violations of
rights are known must be “simple, quick and effective” since
such violations are of such magnitude that a reasonably flexible
evidentiary activity should be sufficient for their verification”.
The Court has also stated that “the fact that the evidence
has greater flexibility and characteristics that are proper to
it, in no case could mean that these actions could be carried
out in contravention of rights and principles contained in the
Constitution”.
These criteria have been reiterated in Judgment
No. 2951-17-EP/21, in which the Court held: “evidence in
jurisdictional guarantees is governed by the principles and rules
that characterize these processes. Therefore, greater flexibility
is accepted in the way of acting of the means of evidence, and
broader categories and evidentiary institutions are accepted
than in ordinary proceedings. This is since the procedure in
which violations of rights are known must be “simple, rapid and
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effective”, since such violations are of such magnitude that a
reasonably flexible evidentiary activity should be sufficient for
their verification” (par. 92).
In the following section, we will point out several
specificities that we consider important at the moment of
practicing each type of evidentiary means in jurisdictional
guarantee processes.
1.1.5. Valuation
The LOGJCC also does not contain specific regulations
on the method of evidentiary assessment that must be used by
constitutional judges. Therefore, it is again necessary to apply
in a supplementary manner article 164 of the COGEP, according
to which the evaluation of evidence is carried out by applying
the system of sound criticism. In this system of evaluation,
according to Barrios (2003), “the judge appreciates the
evidential elements according to the rules of logic, experience,
and related sciences and arts” (n. p.). Likewise, Coloma and
Agüero (2012) argue that sound criticism is composed of the
principles that guide logic, the maxims of experience, and
scientific knowledge.
This has been ratified by the Constitutional Court in
Judgment No. 2936-18-EP/21, in the following terms: “in the
absence of an express rule in the LOGJCC, the evaluation of
the evidence must be based on the general rules outlined in
Article 164 of the COGEP, according to which the evidence
must be evaluated as a whole and following the rules of sound
criticism...” (para. 43). Additionally, in Judgment No. 2951-17-
EP/21, the Court (2021) stated:
The evaluation of the evidence must be based on the
general rules outlined in Article 164 of the COGEP,
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according to which the evidence must be evaluated
as a whole and by the rules of sound criticism (...),
the evidence admitted to the proceedings must be
evaluated as a whole and under the rules of sound
criticism. (pars. 87 and 93)
The judge must justify within his sentence the value he
has given to each of the evidence, qualifying them as pertinent
or impertinent and, to the facts, as truthful or of doubtful
consideration, in such a way that from among all the events that
occurred and that participated in the process, the judge makes a
justified selection (Guamán Ramos, 2018, p. 12).
The need to give reasons for evidentiary decisions in
matters of jurisdictional guarantees has also been recognized
by the Constitutional Court in the following terms: “once
the judge carries out the internal process of evaluating the
evidence, he must reflect it in the motivation of the decision.
As this Court has pointed out, the guarantee of the motivation
requires a sufficient factual basis and this must contain, at least,
“a sufficient justification of the facts considered proven in the
case” (Judgment No. 2951-17-EP/21, para. 94 and Judgment
No. 1158-17-EP/21).
In our opinion, if what is intended is that the decisions
regarding the evidentiary assessment of a judicial authority
be rational and controllable, it is not enough to establish
generically a highly subjective system, such as sound criticism,
for the evidentiary assessment. On the contrary, we consider it
necessary for the Constitutional Court to gradually introduce
through its jurisprudence standards of proof. These standards
are usually defined as those minimum thresholds that must be
satisfied to consider a statement of fact to be proven. (Clermont
& Sherwin, 2002; Ferrer Beltrán, 2021; Gascón Abellán, 2005;
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Taruffo, 2003). Some point out that the institutionalization
and plurality of evidentiary standards are defining features of
mature justice systems and, therefore, capable of identifying
the different thresholds of proof applicable to different types of
conflicts (Larroucau Torres, 2012; Vásquez, 2013).
It is worth noting that, in Judgment No. 2951-17-
EP/21, the Constitutional Court introduced a variant of
the
preponderance of evidence
as to the generally applicable
evidentiary standard for jurisdictional guarantees. Indeed, the
Court (2021) stated:
The standard of proof required to consider a fact
proven is less rigorous than in other areas of law. If
it can be concluded from the body of evidence that
it is reasonably more probable than not that an event
occurred, the standard is satisfied. (par. 93)
The preponderance of the evidence adopted by the
Constitutional Court is a de minimis standard according to
which the parties must provide sufficient evidence to show that
it is more probable that their account of the facts is true than that
it is false or that it is more probable than the account alleged by
the opposing party (Kaplow, 2012). It is not necessary, for this,
for the judge to have elements that guarantee absolute certainty
about the truth of the facts, as in the case of the standard beyond
a reasonable doubt
. On the contrary, it is sufficient to show that
hypothesis X is more likely to be true than hypothesis Y for the
judge to consider hypothesis X proven.
As Lord Denming explains in
Miller v. Minister of
Pensions
(1947), “if the evidence is such that the court can say
‘we think it more likely than not, then the burden has been met”
(n. p.). Unlike other standards of proof, the preponderance of
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the evidence is based on an inductive and eminently referential
probability (Gascón Abellán, 2005).
We consider that the generic application of this
standard may undermine the evidentiary nature of the
jurisdictional guarantees. In our opinion, the preponderance
of the evidence should be applicable only when the reversal of
the burden of proof does not operate, that is, in those cases in
which the burden of proof falls on the plaintiff. In other cases,
for example, when the State must prove that it did not violate
constitutional rights, it would be more appropriate to introduce
more rigorous evidentiary standards than the preponderance of
the evidence. Standards such as the preponderance of evidence
and clear and convincing evidence are suited to higher levels
of protection of constitutional rights, in those cases where the
evidentiary burden falls on public entities.
1.2. Evidence
The LOGJCC does not determine which evidentiary
means may be announced and practiced in constitutional
proceedings. Under this premise, it is again necessary to resort
to the COGEP which, as indicated above, is a supplementary
rule to fill the gaps in the LOGJCC. In this regard, the COGEP,
in its Book III, Title II, Chapters II, III, IV, and V, regulates
the evidentiary means that may be admitted in trials, i.e.,
testimonial, documentary, expert, and judicial inspection
evidence. In the case of jurisdictional guarantees, evidence
gathered by commissions appointed by the judges is added.
1.2.1. Testimonial evidence
Testimonial evidence is the statement made by one
of the procedural parties, called declarant, or a third party,
called witness (Article 174 COGEP). This evidentiary means
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essentially serves for a person to inform the judge about what
he/she knows of certain facts that he/she perceived directly
or indirectly through his/her senses. The testimonial evidence
must be given at a hearing, either in person or through
videoconference, although it is also possible to request an
anticipated statement or preparatory diligence (articles 122
numeral 7 and 174 COGEP). In the jurisdictional guarantees,
it is not possible to take testimonial evidence through advance
statements or preparatory proceedings, since the LOGJCC itself
does not provide for this, but it is possible to do so through
videoconference. Therefore, in these proceedings, testimonial
evidence can only be taken at a hearing.
The practice of the testimonial evidence is carried out
through an interrogation, formulated by the person proposing
the declarant or witness, and a cross-examination, by the
opposing party. According to the COGEP, the judge is limited to
ordering the declarant or witness to answer the questions asked
by the parties, without the judge being able to ask questions
autonomously, but only for clarification purposes (Article 175).
In jurisdictional guarantees, on the contrary, we consider that
the active role of the judge allows him to formulate questions
not asked by the procedural parties, oriented to determine the
violation of constitutional rights. Moreover, Article 14 of the
LOGJCC provides that “the judge shall ask the questions he or
she deems necessary to resolve the case...”.
According to Article 175 of the COGEP, the witness
or declarant may refuse to answer questions that could lead to
personal criminal liability, to his spouse, common-law spouse, or
relatives within the fourth degree of consanguinity. Suggestive,
captious, vague, confusing, impertinent, or hypothetical
questions may be objected to by his technical defense counsel
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(art. 176 COGEP). Person’s incapable of testifying, persons
suffering from a mental illness that deprives them of the
capacity to perceive or communicate objectively and persons
who at the time of the facts were intoxicated or under the effect
of psychotropic substances (art. 189 of the COGEP) may not
testify. We consider that these provisions are fully applicable
for jurisdictional guarantees since they preserve the standards
of constitutionality for the practice of testimonial evidence.
One of the fundamental differences between what
occurs between administrative and tax litigation proceedings and
jurisdictional guarantees lies in the admissibility of the testimony
of public servants. In the first process, Article 310 of the COGEP
expressly provides that the testimony of public servants does
not constitute evidence and adds that “the reports issued by
the defendant authorities (...) shall not be considered part of
the testimony”. Constitutional jurisprudence has specified that
this does not apply to jurisdictional guarantees. In Judgment No.
639-19-JP/20 and accumulated, the Constitutional Court stated
that, in resolving an action for protection, “it is admissible (...)
declarations of public officials” (par. 91).
With the evidentiary value of the testimonies, the
Constitutional Court has held that, in habeas corpus proceedings
in which the violation of the right to personal integrity is alleged,
“the statement of the victim of sexual aggressions becomes
fundamental evidence in this type of aggression”. In addition,
following the line of the Inter-American Court of Human Rights,
the Ecuadorian judiciary expressed: “these statements, when
referring to a traumatic moment of the victims, could incur in
certain inaccuracies, without this meaning that the statements
are false or that the facts related lack veracity” (Judgment No.
365-18-JH/21, para. 192).
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In Case No. 2951-17-EP, the Constitutional Court also
stated that “to evaluate the testimonial evidence, the context of
any statement and its relationship with the other evidence must
be considered” (para. 88). In the same decision, it stated: “the
judges must always evaluate the statement of the alleged victim,
but this statement cannot be taken in isolation, but rather
within the body of evidence in the process, taking into account
its context and relationship with the other evidence” (par. 93).
After analyzing the 91 sentences selected by the
Constitutional Court of Ecuador in the period between 2019 and
2021, it can be concluded that the use of testimonial evidence
as a means of proof in the first instance represented 13% of
the total study population. On the other hand, 64 sentences
were appealed and heard in the second instance, consequently,
testimonial evidence was not used, however, in 94% of cases, no
evidentiary means were presented.
1.2.2. Documentary evidence
According to Article 193 of the COGEP, documentary
evidence is any public or private document that “collects,
contains or represents any fact or declares, constitutes or
incorporates a right”. This includes photographs, videos,
and graphics, among other physical and digital documents.
Article 194 of the referred procedural law provides that the
documents must be submitted in originals or certified copies.
Constitutional jurisprudence, however, has established that, in
jurisdictional guarantees, “simple copies of public documents,
press clippings...” are admissible. This is because in these
processes “flexible evidentiary categories and institutions are
accepted” (Judgment No. 639-19-JP and accumulated, para.
91). We understand that this rule would be generally applicable
to the plaintiffs, but not to the defendant’s public authorities,
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who normally have direct access to administrative records and
original documents.
Article 195 of the COGEP establishes several conditions
to guarantee the full effectiveness of the documentary evidence,
among them: “That they are not defective or diminutive
(...) That they are not altered in an essential part (...) That
no instance or appeal is pending in the proceedings on the
point that, with such documents, it is intended to prove”. We
consider that these provisions are also applicable in the case of
jurisdictional guarantees.
The practice of documentary evidence, regulated in
Article 197 of the COGEP, provides that documents are read and
exhibited in public in their relevant part, objects are exhibited,
and photographs and audiovisual elements are also reproduced
in their relevant part. The development of technology has made
it possible to speak of digital documents, which are produced
electronically through programs, applications, or functional
systems that make it possible to prove voluntary acts and facts
for a certain event. Article 202 COGEP provides that documents
produced electronically with their respective annexes
(support), will be considered originals. In the same sense,
Article 52 of the Law of Electronic Commerce, Signatures and
Data Messages considers as means of evidence “data messages,
electronic signatures, electronic documents, and national and
foreign electronic certificates”, the first characteristic provided
by the same law corresponds to the fact that the magnetic
support must be attached for its full validity in court. Such
evidence remains in the hands of the judge and may be used by
the parties during the hearing. In protection action hearings,
it is usual for the parties to refer generically to documents
included in the file, i.e., without specifying specific extracts.
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On the other hand, documentary evidence may be
public or private, in the first case, documents authorized with
the legal solemnities are considered public, if such document was
incorporated into a protocol or public registry it will be called a
public deed, in addition, data messages granted by the competent
authority duly signed are considered public instruments.
Private documents are those instruments that do not
have solemnities or are not registered in protocols or registries;
however, they have been created voluntarily by individuals
interested in contracting and binding each other, according
to the COGEP it is left open the possibility of requesting the
recognition of signatures and signatures in the respective
hearing, in such a way that if this is not done, it will not lose
its evidentiary validity. The documentary evidence in matters
of jurisdictional guarantees has greater flexibility and avoids
unnecessary formalisms such as the one mentioned in previous
lines “recognition of signatures”, due to the inequality of the
procedural parties involved in the jurisdictional actions.
Regarding the evaluation of documentary evidence,
the Constitutional Court has stated, for example, that “the birth
registration certificate and the birth certificate are suitable
documentary evidence to claim the right to a nationality”
(Judgment No. 2158-19-JP and accumulated/21, para. 91).
When analyzing the 91 sentences selected by the
Constitutional Court of Ecuador in the period between 2019
and 2021, it can be concluded that the use of documentary
evidence as a means of proof in the first instance represented
70% of the total study population, on the other hand. In this
context, in the second instance, documentary evidence was
used in 2% of the total analyzed.
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1.2.3. Expert evidence
Expert evidence refers to the information provided by a
third-party expert called an “expert”, who due to his knowledge,
academic training, and technical or scientific skills, is qualified
to provide specialized information (technical and/or scientific)
on a fact of great relevance to the process.
Also, we can identify two central aspects of the expert
evidence. The first corresponds to the expert, who has the
necessary knowledge to present the information to the judge.
The second aspect consists of the expert report that was
prepared by the mentioned expert and that is intended to be
used to prove the factual premise (Vásquez, 2014, p. 32).
According to Article 222 of the COGEP, the expert
witness is the natural or legal person who, in addition to
having technical, scientific, artistic, practical, or professional
knowledge, must be accredited by the Judiciary Council, so that
only those persons who meet the requirements indicated may
issue expert reports, intervene, and testify in the process. If
there are no accredited persons in a specific matter, the judge
will request the Judiciary Council to require a public institution,
university, or professional association to send a list of three
professionals to be accredited and provide the necessary
support in that case, Article 221 of the COGEP and Article 12
of the RSPIFJ.
For the practice of the expert evidence, the expert
report must be attached to the claim, except in the event of
not having or not having access to the person, object, or thing
of the expertise, in which case the judge must be requested to
order its practice. For this purpose, the corresponding drawing
of lots and designation of an expert will be made. In both cases,
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the work of the expert must be carried out with objectivity,
impartiality, opportunity, responsibility, punctuality, rectitude,
and honesty, therefore, the expert shall avoid making value
judgments on any of the parties (articles 16 and 21 of the
Regulations of the Judicial Function Integral Expert System,
hereinafter RSPIFJ).
According to Article 5 of the RSPIFJ, persons who have
been convicted of crimes against public administration, harm,
crimes against humanity, hatred, sexual or family violence,
have been dismissed or sanctioned for administrative, civil,
or criminal liability, owe tax obligations and who adulterate or
falsify documents at the time of applying for accreditation may
not be qualified as experts.
According to article 224 of the COGEP, under article
21 of the RSPIFJ, the expert report must contain the general
data of the appointed expert, the indication of the profession,
expertise, or art, the number of accreditation before the Council
of the Judiciary and a logical exposition of the facts or objects
subject to analysis, must be homogeneous among themselves,
must be motivated by the methodological activity used and
must contain their respective conclusions, in such a way that, it
allows the judge and the parties to easily understand the content
of the report. For Martorelli (2017) “the report aims to clarify
all the technical aspects linked to the case and in that sense to
elucidate the disputed facts” (p.133).
The COGEP, to guarantee the right to defense, provides
that the expert report must be notified to the procedural
parties at least 10 days before the trial or a single hearing is
held (article 225 COGEP). This is not regulated in the rule
governing constitutional cases. Despite this, in both cases, the
expert witness is obliged to attend the corresponding hearing
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and support his report orally. The procedural parties may
question him and challenge the technical or scientific rigor of
his conclusions and credibility (articles 222 and 223 ibidem).
In the constitutional sphere, expert opinions have been
fundamental evidentiary elements for the resolution of causes
related to collective rights. For example, in judgment number
004-14-SCN-CC, the Constitutional Court ruled that in the
event of conflicts of competence between the ordinary justice
system and the indigenous justice system, anthropological,
sociological, and other expert opinions must be available
to allow an approach to the ethnocultural worldview of the
indigenous peoples, nationalities, and communities.
Similarly, in Case No. 112-14-JH/21, the Court (2021)
stated that:
State and indigenous authorities, to interpret norms and
understanding facts and conduct in any jurisdictional
process in which rights are involved, must open an
intercultural dialogue. The mechanisms to develop this
intercultural dialogue are diverse, and priority should
always be given to the most direct ones, such as (...)
expert opinions with field studies...” (par. 35).
In case No. 273-19-JP/22, referring to action for
protection, the Court verified, through an expert report,
“environmental, social and cultural damages” that put the
Cofán de Sinangoe community at risk. This expert report also
highlighted:
Damage to vegetation cover and deforestation in
the area of Las Pizarras, Cofanes River, Chingual
River, Aguarico River due to the opening of roads for
the entry of backhoes; damage to the banks of the
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Aguarico, Chingual and Cofanes Rivers; damage to
water as evidenced by the reduction of fishing; damage
to fauna, as it was reduced by poaching and illegal
hunting activities of miners who lie in the territory,
among others. (Court, 2022, par. 17)
The use of expert evidence as a means of proof in the
first instance is 7%. On the other hand, in the second instance,
it is not used in the review processes analyzed.
1.2.4. Judicial inspection
Judicial inspection is that evidence that allows the judge
to know directly and through his senses the places, things, or
documents that are the object of the litigation, in such a way
that it is the judge who verifies the existence or not of the facts
alleged by the parties. For Garcia (1974), the importance of this
evidentiary means consists in that “it puts the judge in personal,
immediate and direct contact with the facts that are the subject
of the process, thus facilitating the formation of his conviction
regarding the extremes that will serve as support for his decision”
(p. 322). According to García (1974), the judicial inspection
consists of the “personal examination made by the judge of the
object of the controversy, to obtain from these examination
elements that form his conviction” (n. p.). The judicial inspection
is, therefore, a test directly practiced by the judge.
Following Articles 228 and 229 of the COGEP, the
judicial inspection may be requested ex officio or at the request
of a party utilizing the acts of proposition with the precision
of the reasons that support it. This will take place at the place,
date, and time indicated for the purpose and, if necessary, will
be supported by an expert accredited by the Judiciary Council.
Once the proceedings have been installed, the floor will
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be given to the requesting party, who will explain the purpose
of the inspection, the corresponding judge will conduct the
inspection, and finally, the floor will be given to the opposing
party, who, in use of his right to defense, will explain what was
inspected and will try to refute the allegations of the requesting
party, after which, the proceedings will be recorded and the
video recording will be attached (Article 230 of the COGEP).
On the other hand, concerning jurisdictional guarantees,
the judicial inspection may be requested by the judge or by one
of the procedural parties and its objective is the same, i.e., it
seeks that the judge acquires knowledge and conviction of the
facts through the use of his senses to the place, the thing or the
corresponding documents.
Before the analysis of the judgments under study,
the evidence by judicial inspection in the first instance was
not used, however, in the second instance it represents 2% of
applicability, out of the total of 91 review processes analyzed.
1.2.5. Evidence collected by committee
The appointment of commissions to gather evidence in
jurisdictional guaranteed proceedings is an ex officio power of
the judge. It is the judge who, at the time of qualifying the claim
or in the course of the hearing, whenever he considers that the
evidence provided by the parties is not sufficient, may appoint a
commission to gather new elements, Article 16 of the LOGJCC.
These commissions can be unipersonal or pluripersonal,
depending on the information, versions, and evidence required
to clarify one or several facts. In this context, the impact of the
exploitation and oil spill on a group of inhabitants in a state of
voluntary isolation requires the support of a group of people
who can gather the necessary information (environmental,
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economic, social damages, malformations, complex diseases,
violent dispossession of ancestral territories, etc.), for which
people with a high level of knowledge related to the investigated
fact will be required.
The appointment of commissions, according to
Article 86 of the Constitution and 16 of the LOGJCC, has three
objectives: to visit the place of the facts, to receive testimonies
and evidence, and then to prepare a report. This report, according
to the LOGJCC, has the value of “practiced evidence”, even if it
is not subject to a contradiction in a hearing. The condition of
“practiced evidence” that the LOGJCC grants to the evidence by
commission mark a new milestone in the protection of rights,
because this evidence breaks the procedural rules, to the extent
of having it as admitted and practiced. We would be in front of
full proof because from the beginning it would be considered
duly accredited and practiced and, if this is the case, the judge
should value it as such.
The judge’s power to order the formation of
commissions violates the principle of immediacy because he
becomes one more actor in the process, thus leaving behind the
duty of the parties to prove their allegations and contradict the
evidence against them, and of course, under this scenario, the
parties would no longer be on equal footing.
Ruling No. 175-14-SEP-CC established the leading role
that constitutional judges must assume in the substantiation
of jurisdictional guarantees so that the respect for the rights
recognized in the constitution will only be materialized with a
real verification or not of the violation of rights.
On the other hand, the LOGJCC confers to the judge
the ex officio power to order the practice of evidence at any
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time during the process, either in the qualification of the claim
or in the hearing, although it is not established in the law, he
can also order it in the second instance and the term in which it
must be effectively practiced. Notwithstanding the above, it is
important to emphasize that the judge should not make up for
the evidentiary shortcomings of the corresponding technical
defenses and, therefore, before ordering them, he must give
reasons for his decisions.
In case 1837-12-EP/20, paragraph 16, the Court
developed the basic criteria for a decision to be considered duly
motivated, which are: i) enunciation of the legal norms or legal
principles; ii) mention of the facts of the specific case and, iii)
explanatory statement of relevance for the application in the
case.
The importance of the power to order evidence resides
in the effect that this generates at the time of resolving the
protection action, where there will necessarily be a winning
party and another that will have lost the action due to the
evidentiary contribution dictated ex officio. For this, it is
necessary to clarify that the power deposited in the judge is
not unlimited and that it should not be activated in all cases
and instances, but, on the contrary, it should be activated when
there is not enough evidence to resolve.
From the analysis conducted, it can be concluded that
the commission test was not used in the first instance. However,
in the second instance, its application represents 2% of the total
study population.
The burden of proof responds to a procedural necessity
in the effective exercise of a jurisdictional guarantee such as the
action for protection, according to article 16 of the LOGJCC,
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the plaintiff should prove the facts alleged in its claim either in
the complaint or at the time of the hearing, except in cases in
which the burden of proof is reversed, thus transferring such
obligation to the defendant.
According to Cevallos (2021, p. 11) quoting Michelle
Taruffo (n. d.) “(...) the legislator resorts to these techniques
when he considers it convenient to favor to some extent the
position of the weak party or the party that would otherwise find
it impossible or excessively difficult to prove a fact”. In contrast
to what Article 169 of the COGEP promotes, on the burden of
proof, this exchange obeys to a great extent the public interests
pursued by the state in the protection of constitutional rights.
Article 86, paragraph 3 of the CRE, as well as article
16 of the LOGJCC, determine that the burden of proof falls
exclusively on the defendant, in the following cases: i) when
the defendant public entity does not prove the contrary or
does not provide information and ii) when discrimination or
violation of environmental or natural rights is alleged against
a private individual, in these two scenarios the facts will be
considered true and it will be the defendant’s responsibility to
prove the contrary.
CONCLUSIONS
The study of evidence in jurisdictional guarantees and
specifically in the action of protection shows that in Ecuador
there are no clear guiding rules. For this reason, the final
provision of the LOGJCC has provided the possibility of using
supplementary rules such as the COGEP to fill certain gaps in
the process and evidence. In addition, the Constitutional Court,
in its role as guarantor of rights, has found it necessary to issue
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rulings to set minimum standards concerning evidence and its
relevance when proving certain factual facts.
The LOGJCC does not establish which means of proof
are accepted to demonstrate the violation of constitutional
rights. For this reason, the provisions of the COGEP are used and
the following are considered valid: testimonial, documentary,
expert, and judicial inspection evidence. The Constitution and
the LOGJCC grant the judge the power to appoint commissions
to gather evidence, which must lead to the conviction of the
facts so that a sentence can be issued. The seriousness of this
informal power lies in the fact that it would be violating the
right to defense in the guarantee of contradiction.
The empirical analysis of the 91 cases selected by
the Constitutional Court of Ecuador in the period between
February 2019 and June 2021 shows that the most common
means of evidence used at the time of filing or answering an
action for protection are in the first instance: documentary with
70%, testimonial with 13%, an expert witness with 7%, judicial
inspection and evidence by commission 0%, while, for 10% of
cases there was no means of evidence.
The results show that although judges are empowered
to create commissions to gather evidence at their discretion
and at any time during the process, they decide not to resort to
the use of this mechanism due to the vacuum that exists in its
use and application.
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Received:
29/01/2021
Approved:
15/07/2022
Freddy Orlando Jimenez Tisalema:
Postgraduate Student and
independent legal researcher
Email:
freddy16jt@hotmail.com
City:
Ambato
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-6595-6658
José Luis Castro Montero:
Universidad Central del Ecuador.
Email:
j.l.castromontero1@gmail.com
City:
Quito
Country:
Ecuador
ORCID:
https://orcid.org/0000-0002-2883-1100