The right to precautionary protection is part of the essential content of the constitutional right to effective judicial protection included in Article 75 of the CRE (Constitution of the Republic of Ecuador)1, and in Articles 82 and 253 of the American Convention on Human Rights Pact of San José. In this respect there is broad consensus, both in doctrine and in jurisprudence for the protection of human rights.
It was the paradigmatic judgement on the FACTORTAME case, in which the European Court of Human Rights warned about the needing of the obligation of acceding to justice in order to obtain a positive verdict does not generate any damage for whom pursuits it. So, they acknowledged the existence of “interim protection if this is necessary to ensure the full effectiveness of the subsequent definitive judgment, in order to prevent a lacuna in the legal protection afforded by the Court”4.
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1 “Art. 75. – Every person has the right to free access to justice and the effective, impartial and expeditious protection of their rights and interests, subject to the principles of immediate and swift enforcement; in no case shall there be lack of proper defense. Failure to abide by legal rulings shall be punishable by law. “
2 “1. Every person has the right to a hearing with due guarantees and within a reasonable timeframe, by a competent, independent and impartial tribunal previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labour, fiscal or any other nature.”
3 “1. Everyone has the right to a simple and prompt recourse, or any other effective recourse to a competent court or tribunal for protection against acts that violate his fundamental rights recognised by the Constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
2. The Party States shall undertake:
a) to ensure that the competent authority provided for by the legal system of the State will decide on the rights of any person claiming such resource;
b) to develop the possibilities of judicial recourse;
c) to ensure compliance by competent authorities of any decision where the recourse is estimated to be appropriate.”
4 Judgment of 19th June 1990, Factortame and others, C-213/89; and the judgement of 21st February 1991, Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest, joined cases C-143/88 and C-92/89.
On the other hand, the Spanish Constitutional Court jurisprudence, extends this definition and correctly explains that “judicial protection is nothing without precautionary measures that ensure the effective enforcement of the final resolution that would fall upon the process”.5 In the same sense, the highest body of Spanish constitutional control reiterates that “the judicial power of suspension, as well as all precautionary measures, responds like this to the idea of ensuring the effectiveness of the future pronouncement of the jurisdictional body: this is to prevent that a possible favourable judgement to the deducted pretension would remain devoid of effectiveness for the conservation or consolidation of contrary situations to law or interest recognised by the jurisdictional body at the time (…). Consequently, once the enforceability of administrative acts is recognised by law, the same legislator cannot absolutely eliminate the possibility of adopting precautionary measures destined to ensure the effectiveness of the judgment that could be issued …”6
This interpreting European case law took almost 10 years to reach Latin America through the Inter-American Human Rights System, that has established certain criteria that could be useful to understand the essential content of this right. The Inter-American Court of Human Rights, in the Case Baena Ricardo vs PANAMA, referring to article 8 of the aforementioned ACHR (American Convention on Human Rights) has held that “although Article 8 of the American Convention is entitled “Right to a Fair Trial”, its application is not limited to judicial recourses, strictly speaking, but [to] all the requirements that must be observed in the procedural stages” in order that people would be able to adequately defend their rights before any State action in which they could be affected. It means, that any act or omission of State bodies in a procedure, whether administrative punishable or jurisdictional, must respect the due legal process.”7
It is clear that an effective access to justice requires the possibility of precautionary measures, which could be conceived as the instrument arbitrated by law, to avoid that necessary time delays for a final resolution, could lead to an ineffective result.
The issue of precautionary measures, today, in the early twenty-first century, with a rather slow administrative and constitutional justice, which often declares over the legality of public acting when this has been accomplished long ago, constitutes now a central theme of the entire system of Public Law in the whole world. For many reasons, among others, because the preventive trial, that is not a judgment of validity but of efficacy; it is presented to us as a first test of the efficacy of public power and its possible effect on the fundamental right to effective judicial protection.8 And this problem in Ecuador is much greater today, especially in the administrative contentious jurisdiction.
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5 STC 14/1992, of 10th February. Bold is mine.
6 STC 238/1992, of 17th December. Bold is mine.
7 Baena Ricardo vs Panama case. Judgment, Reparations Meritsand Costs. 2nd February, 2001. p.92.
8 In this regard, the Spanish Supreme Court has categorically explained that “with the new regulation ends the monopoly of the precautionary measure of suspension, shaping up a system of “numerous apertos” of unnamed measures, among which, undoubtedly, are those of positive character” Supreme Court Decision of 7th November 2007.
In this regard we must settle the idea in Ecuador that precautionary measures are not exceptions but are powers that the judicial body may exercise only when it would result necessary to ensure the purpose of the final judgment, basing its decision on the criterion of fumus bonis iuris and the periculum in mora, and not in a definitive analysis of the issue, as recognised in Art. 28 of the LOGJCC (Fundamental Law of Jurisdictional Guarantees and Constitutional Control).
In this sense, precautionary measures will be necessary when the execution of the action of public power could cause to lose the legitimate purpose of the raised judicial resource. This is the new feature of the precautionary measures in the constitutional framework, a feature that is inserted into a slow justice, which is slowly replacing a definitive justice on the validity, that comes too late and sometimes in poor conditions, for a provisional, precautionary justice, which focuses on the effects of the action in relation to the irreversibility of the occurred damage and with the nature of the impact that could have on public interest.9
A recent and nearby example of this possibility of obtaining preventive precautionary protection can be found in Argentina, where on Friday 14th December 2012, the Civil and Commercial Federal Court decided to extend the validity of the precautionary measure in favour of Grupo Clarin “until the final verdict would be issued in the cause.” This provision inhibits AFSCA (Federal Authority of Audiovisual Communication Services) of applying the entire de-investment rules, whose constitutionality is challenged until the judgment would become final.10 This same mechanism, mutatis mutandis, is contemplated by our legislation in art. 87 of the CRE and 26 and following of the LOGJCC, and that should be extended to the administrative contentious jurisdiction.
All of this should lead to the conclusion that, as explained correctly and clearly, by the considered the teacher of teachers, “the competence to agree on precautionary measures is not in itself (…) a different competence other than to prosecute and decide. It is exactly an ancillary competence of the last mentioned and pretends nothing but to ensure in advance any efficacy of the bottom decision, avoiding its practical frustration when it is foreseeable if the precautionary aid is not provided.”11
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9 Cfr RODRIGUEZ Arana, Jaime, Judicial suspension of the administrative action in the Bill of Administrative Contentious Jurisdiction Law., The Law: Spanish juridical magazine of doctrine, jurisprudence and bibliography, 4 (1997). pp. 1385-1388.
10 Vid http://underconstitucional.blogspot.com/2012/12/caso-grupo-clarin-sentencia-apelacion-y.html?spref=tw (accessed 15th December 2012).
11 GARCÍA DE ENTERRÍA, Eduardo, “The battle for the precautionary measures” Third Edition, Reprint, Aranzadi Editorial, Cizur Menor (Navarra), 2006. P. 53.
Therefore, there is no doubt that in order to confront an action of public power, it can be demanded judicial protection from the jurisdictional bodies and, accessorily, to ensure the purpose of the main verdict, which is preventive precautionary protection. In this sense there is a constitutional right to precautionary judicial protection in Ecuador that cannot be interpreted restrictively in the administrative contentious justice, despite the provisions of the Contentious Administrative Jurisdiction Law.
