Finding the right judge: challenges of jurisdiction between indigenous and ordinary adjudicators in Ecuador

ABSTRACT

Ecuador is a country with several normative systems coexisting within the same territory. Having a multiplicity of systems facilitates the clashes of jurisdiction among them. This contribution studies the applicable rules Ecuador has to allocate jurisdiction among different legal systems, and how these rules advance or halt human rights. One particular way the country deals with conflicting jurisdictions is the request to relinquish jurisdiction that indigenous authorities may submit to ordinary courts if the former believe that the latter have no jurisdiction to hear a case. The decisions of ordinary courts on the request to relinquish jurisdiction will be analysed, as well as the impressions and opinions on the matter from academics, ordinary judges and prosecutors, indigenous authorities, activists and lawyers, all of them collected during three field research trips conducted in the country. The paper concludes by arguing that jurisdiction has a human rights impact. Every person has the right to be heard by a competent court, and barring that person from his/her natural judge is a fair trial violation.

KEYWORDS:

• Legal pluralism
• request to relinquish jurisdiction
• clashes of jurisdiction
• subject-matter jurisdiction
• personal jurisdiction
• territorial jurisdiction
• Ecuador
• human rights

Acknowledgements

I owe special thanks to Marc Simon Thomas (Utrecht University) and Yves Haeck (Ghent University) for their extensive review and thoughtful comments on earlier versions of this paper. I am also thankful with the Flanders Research Foundation (FWO) for conceding me the long-stay abroad grant to conduct my 2014 field research. Finally, I am thankful to the editors and blind reviewers of this journal for their suggestions and comments.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. See von Benda-Beckmann (2002, p. 37), who defines legal pluralism as the simultaneous existence of two or more legal orders pertaining to more or less the same set of activities within “one socio-political space, based on different sources of ultimate validity and maintained by forms of organization other than the state”. See also van Cott (2000) and von Benda-Beckmann & von Benda-Beckmann (2006).

2. See Constitution, R.O. No. 449, 20 October 2008, Art. 57(10):

The following collective rights are recognized and will be guaranteed to the indigenous communities, peoples and nations, in accordance with the Constitution and with the covenants, conventions, declarations and other international instruments on human rights: […] 10. To create, develop, implement and practice their own customary law, which may not violate constitutional rights, in particular the rights of women, children and adolescents. (author's translation) and Art. 171:

The authorities of the indigenous communities, peoples and nations shall exercise jurisdictional functions, based upon their ancestral traditions and their own system of law, within their territorial area, with the guaranteed participation of and decision-making by women. The authorities shall apply their own norms and procedures for the solution of their internal conflicts, and which are not to be contrary to the Constitution and the human rights recognised in international instruments. The State guarantees that the decisions of the indigenous justice will be respected by the public institutions and authorities. The said decisions will be subject to constitutional control. The law will establish mechanisms of coordination and cooperation between the indigenous justice and the ordinary justice. (author's translation)

3. Constitution, R.O. No. 1, 11 August 1998, Art. 191.

4. Indigenous peoples in Ecuador classify themselves into nations (nacionalidades), peoples (pueblos) and communities (comunidades). There are 14 indigenous nations, each one with its own culture, language, dress, organization, etc. The Kichwa nation, the largest in the country (47.5% of the indigenous population), is divided in 14 different pueblos. Similarly, the Manta-Huancavilca-Puná nation is divided in three pueblos. The pueblos are formed by communities, and the communities by groupings of families. The rest of the nations are only formed by communities (not pueblos). See Ministerio Coordinador de Patrimonio and UNICEF, Nacionalidades y pueblos indígenas, y políticas interculturales en Ecuador, available at http://www.unicef.org/ecuador/policy_rights_23964.htm

5. Lema (2009).

6. Simon Thomas (2013, pp. 169–192) presents a case where the parties, both of them indigenous, solved an adultery controversy using their traditional ways of dealing with conflicts, but before a Teniente Político, an appointed political official from the ordinary system.

7. For instance, García (2002, p. 19) states that religion may create irreconcilable inequalities among the members of the same community. Salgado (2009), Sieder and Sierra (2010), García, (2012b), and Lavinas Picq, (2012) report the vulnerability of women in certain indigenous groups. Llasag Fernández (2012) holds that sometimes indigenous adjudicators are used by political parties for personal benefits.

8. For early drafts, see Trujillo et al. (2001); Salgado 2002; Vintimilla (2012); Vianne & Fernández-Maldonado (2016).

9. Organic Code of the Judiciary, R.O. Sup. No. 544, 9 March 2009.

10. Ibid, Art. 345 (author's translation).

11. See for instance Illaquiche (2001), Llasag Fernández (2006, pp. 753–759), Simon Thomas (2013, pp. 208–218).

12. See for instance García (2010), Vintimilla (2012, pp. 91–99), Yumbay (2014).

13. Brandt (2013, p. 69).

14. All the cities except Guayaquil are located in the Andean region of the country (Sierra). Guayaquil is situated in the coastal region. All the cities except Saraguro are provincial capitals and Quito is the capital of the country. Quito, Guayaquil and Cuenca are the three largest cities and have received migrants from other provinces since 1962, including indigenous populations (Farrell, Pachano and Carrasco, 1988.). The case of Guayaquil is special since originally there were no indigenous inhabitants there, but the migratory waves of indigenous peoples from the Andean region transformed the ethnic composition of the city to the point that the State established a branch of the Office of the Prosecution (Fiscalía General del Estado) specialized in indigenous affairs (see infra n 17). Guayaquil was selected for this study precisely because of the presence of the Fiscalía de Asuntos Indígenas. Quito was selected because the major universities of the country, as well as the main branches of the State institutions are located in the capital. Saraguro was selected because it is the main indigenous city of the province of Loja, and because there is a Fiscalía de Asuntos Indígenas there. Riobamba, Guaranda and Loja are the capitals of four provinces with large indigenous populations. Moreover, they also have a Fiscalía de Asuntos Indígenas, or the provincial offices of the Judicial Council (Consejo de la Judicatura) are located in these cities. The Judicial Council is the state institution in charge of the administration of the Judiciary and it has been studying indigenous justice systems.

15. These communities were selected based on the following criteria: (a) they have a high level of organization, (b) they administer justice frequently or they are in close contact with state officials (e.g. judges, prosecutors, police officers); (c) they are located in provinces with high percentages of indigenous population; and (d) they were open to receive outsiders and give interviews.

16. The respondents were classified as “indigenous” or “non-indigenous” based on their self-identification.

17. The Public Ministry (Fiscalía General del Estado) created in 2007 a special section called the Prosecution on Indigenous Affairs (Fiscalía de Asuntos Indígenas). This new section has eleven indigenous prosecutors that speak the indigenous language of the localities they serve (see Office of the Prosecution's Agreement (acuerdo) No. 064 MFG-2007, 8 November 2007, and Simon Thomas (2013, pp. 159–162).

18. It was not possible to establish the universe of cases where judges have relinquished or denied jurisdiction to indigenous authorities. Figures on this issue simply do not exist and there is no centralized database that could have allowed the researcher to obtain more information. Because of the lack of information on the universe of cases, the 28 decisions cited in this study cannot be regarded as a representative sample, but they are an important mapping of the topic.

19. According to Art. 438 of the Ecuadorian Constitution, supra n. 2, when a court, ex officio or upon request, considers that a legal rule is contrary to the Constitution or international human rights instruments, it may suspend the proceedings and refer the case in consultation to the Constitutional Court, for it to decide on the constitutionality of the legal rule.

20. Constitutional Court, Judgment No. 008-15-SCN-CC, Cases Nos. 0005-11-CN; 0058-11-CN; 0021-12-CN; and 0003-13-CN, 5 August 2015.

21. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 11.

22. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 12.

23. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 12 (author's translation).

24. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 13.

25. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 15.

26. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 16.

27. Constitutional Court, Judgment No. 008-15-SCN-CC, 5 August 2015, p. 12.

28. IACtHR, Castillo Petruzzi et al. v. Peru, 1999, para. 129; IACtHR, Lori Berenson Mejía v. Peru, 2004, para. 143, IACtHR, Palamara Iribarne v. Chile, 2005, para. 125.

29. IACtHR, Barreto Leiva v. Venezuela, 2009, para. 75.

30. IACtHR, Cantoral Benavides v. Peru, 2000, para. 115; IACtHR, La Cantuta v. Peru, 2006, para. 145; IACtHR, Escué Zapata v. Colombia, 2007, para. 106; IACtHR, Usón Ramírez v. Venezuela, 2009, para. 120.

31. IACtHR, Separate Opinion of Judge García Ramírez, Usón Ramírez v. Venezuela, 2009, para. 10.

32. For instance, the Inter-American Court of Human Rights (IACtHR) has declared a violation of the right to be heard by a competent judge when cases of human rights violations were heard by military tribunals, see IACtHR, Loayza Tamayo v. Peru, 1997; IACtHR, Castillo Petruzzi et al. v. Peru, 1999; IACtHR, Durand and Ugarte v. Peru, 2000; IACtHR, Radilla Pacheco v. Mexico, 2009.

33. Judicial Unit of Guaranda, Judgment, Luis Alberto Sisa Rea v. Segundo Pedro Patín Patín and other, 27 November 2013.

34. Supreme Court, Judgment, Prosecutor v. Angel Porfirio González Minga, 21 September 2010.

35. Judicial Unit of Guaranda, Judgment, Luis Alberto Sisa Rea v. Segundo Pedro Patín Patín and other, 13 December 2013.

36. See supra n. 4 for an explanation on how Ecuadorian indigenous peoples classify themselves.

37. 3th Criminal Court of Pichincha, Judgment, Cristina Jenifer Tuquerres Pulamarín v. Nelson Fabián León, 5 March 2013.

38. 13^th Court of Saraguro, Judgment, Lauro Vicente Sarango Andrade v. Efraín Porfirio Sarango Ulloa, 4 April 2013 (author's translation).

39. 13th Court of Saraguro, Judgment, Rosa Elena González v. Manuel Asunción Sarango Tene, 20 February 2013.

40. For instance, “Miguel”, indigenous leader (interview), 17 March 2014, and “Lalo”, indigenous leader, (interview) 17 March 2014. “Miguel”, “Lalo” and other names between quotation marks are pseudonyms to protect the identity of the respondents.

41. According to Simon Thomas (2012, p. 71), “the five suspects were captured by local residents and handed over to the cabildo of La Cocha, another neighbouring community. This was an interesting aspect of the case, given that the community of Guantópolo has a cabildo of its own. But, those who captured the five young men probably either knew or suspected that at least one of them was related to a member of the cabildo of Guantópolo and therefore might receive preferential treatment in that community. A second reason not to hand the five suspects over to the cabildo of Guantópolo, was that it had absolutely no experience with serious crimes such as homicide. On the other hand, because of its exemplary handling of a murder case in 2002, the cabildo of La Cocha was considered to be the most trustworthy authority in such a serious legal matter.”

42. 13th Court of Saraguro, Judgment, Pedro Pablo Ortega Japón v. Manuel Enrique Quizhpe Sarango, 3 January 2014.

43. Judicial Unit of Otavalo, Judgment, Prosecutor v. José Luis Cachimuel Quilumba et al., 15 May 2014.

44. Provincial Court of Imbabura, Judgment, Prosecutor v. José Luis Cachimuel Quilumba et al., 3 June 2014.

45. Constitution, supra n. 2, Arts. 54(10) and 171; Organic Code of the Judiciary, supra n. 9, Art. 343.

46. Provincial Court of Imbabura, Judgment, Prosecutor v. José Luis Cachimuel Quilumba et al., 12 November 2014.

47. Kurikamak Yupanki, indigenous lawyer (interview), 4 April 2014 (author's translation).

48. “Carlos”, first instance judge (interview), 13 March 2014.

49. “Luis”, first instance judge (interview), 25 March 2014.

50. As mentioned in the previous Section, it could be possible that two or more communities decide to hear the case together or with the intervention of the pueblo's authorities. In this situation, the applicant should include with his/her request the records (actas) of each community and the acceptance of the pueblo's authorities.

51. 13^th Court of Saraguro (Judgment), Julio Aurelio Congo Macas, 6 June 2013 (author's translation).

52. Convention Concerning Indigenous and Tribal Peoples in Independent Countries (ILO No. 169), 72 ILO Off. Bull. 59, 1989.

53. Grijalva and Exeni (2012) (author's translation). See also García (2008, p. 496): “Regarding the subject matter jurisdiction, indigenous justice must hear and regulate all matters, without limit of amount and severity. The opposite would be to return to a unitary legal pluralism in replacement of equal legal pluralism” (author's translation). Similarly, Julio César Trujillo (academic on Constitutional Law and indigenous peoples' rights, interview, 12 February 2014) considers that limiting the jurisdiction of the indigenous justice is unconstitutional. See also Yrigoyen (2004), Tibán and Ilaquiche (2008), Llasag Fernandez (2006 and 2009), Montaña Pinto (2009), Ávila Ordóñez (2012).

54. Andrade Dávila (2002, p. 32). The author was talking about Art. 191 of the 1998 Constitution (supra n. 3), but the expression “internal conflicts” is in Art. 171 of the current 2008 Constitution (supra n. 2).

55. Aguirre (2012, p. 122).

56. Ibid, p. 123.

57. Beltrán (2010). See also the study of Brandt and Franco Valdivia (2007) and of Pérez Guartambel (2010).

58. “Efraín” (interview), 13 March 2014 (author's translation).

59. “Mesías”, indigenous leader (interview), 24 March 2014.

60. “Homero”, indigenous lawyer (interview), 31 March 2014.

61. Mario Melo, activist (interview), 20 February 2014.

62. 16th Criminal Court of Pichincha, Judgment, Sandra Verónica Pilca Ulcuango v. Segundo César Pinango Acero et al., 26 August 2010, and in the same case, Second Chamber of Provincial Court of Pichincha, Judgment, 27 December 2010.

63. Provincial Court of Imbabura, Judgment, Prosecutor v. José Luis Cachimuel Quilumba et al., 3 June 2014.

64. 13th Court of Saraguro, Judgment, Lauro Vicente Sarango Andrade v. Efraín Porfirio Sarango Ulloa, 4 April 2013.

65. 13th Court of Saraguro, Judgment, José Pedro Medina Zhingre v. Pedro Francisco Zhingre Sauca, 29 April 2013.

66. 13th Court of Saraguro, Judgment, Pedro Pablo Ortega Japón v. Manuel Enrique Quizhpe Sarango, 3 January 2014.

67. Constitutional Court, Judgment No. 113-14-SEP-CC, 30 July 2014 (author's translation).

68. Ibid (author's translation).

69. Simon Thomas (2016, p. 13).

70. See for instance “Dirigentes indígenas exigen nulidad de resolución de la Corte Constitucional” (Indigenous leaders demand the annulment of the Constitutional Court's decision), Ecuavisa, 5 August 2014, available at http://www.ecuavisa.com/articulo/noticias/nacional/74546-dirigentes-indigenas-exigen-nulidad-resolucion-corte-constitucional.

71. “Nina Pacari: Acerca de cómo comprenden la dominación los Pueblos Indígenas y a los gobiernos progresistas” (Nina Pacari: On how indegenous peoples understand domination and the progresive governments), Periodismo Humano, 13 September 2014, avialable at http://guatemalacomunitaria.periodismohumano.com/2014/09/13/nina-pacari-acerca-de-como-comprenden-la-dominacion-los-pueblos-indigenas-y-a-los-gobiernos-progresistas/

72. “CONAIE rechaza fallo de CC sobre justicia indígena y anuncia que se unirá a la marcha del FUT” (CONAIE rejects the CC ruling on indigenous justice and announces that it will join the march of the FUT), Ecuador Inmediato, 21 August 2014, available at http://ecuadorinmediato.com/index.php?module=Noticias&func=news_user_view&id=2818768418&umt=conaie_rechaza_fallo_cc_sobre_justicia_indigena_y_anuncia_que_se_unira_a_marcha_del_fut

73. “La CONAIE no acatará la sentencia de la CC” (The CONAIE will not abide by the decision of the CC), El Mercurio, 8 August 2014, available at http://www.elmercurio.com.ec/442545-la-conaie-no-acatara-la-sentencia-de-la-cc/#.VcY32vlvIuQ (author's translation).

74. Constitutional Court, Judgment No. 008-15-SCN-CC, Cases Nos. 0005-11-CN; 0058-11-CN; 0021-12-CN; and 0003-13-CN, 5 August 2015.

75. Organic Criminal Code, R. O. Sup. 180, 10 February 2014.

76. “Otro tsáchila es condenado por la justicia ordinaria” (Another Tsáchila is convicted by the ordinary justice), El Comercio, 12 January 2016 available at http://www.elcomercio.com/actualidad/tsachila-condenado-justicia-agresion-sexual.html

77. Arbitration and Mediation Act (Ley De Arbitraje y Mediación), Act No. 000. R.O. No. 145, 4 September 1997.

78. Integral Organic Criminal Code, supra n. 75, Arts. 663-665.

79. García (2002, pp. 73–74), quoting the testimony of the President of the Peoples Union of Chibuleo. See also, Beltrán (2006, p. 810).

80. “Efraín” (interview), 13 March 2014.

81. Human Rights Council, Report by the Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous people, James Anaya, Observations on the progress made and challenges faced in the implementation of the constitutional guarantees of the rights of indigenous peoples in Ecuador, 17 September 2010, A/HRC/15/37/Add.7, p. 17, available only in Spanish (author's translation).

82. Julio César Trujillo, academic (interview), 12 February 2014.

83. I.e. Case No. 14, 13th Court of Saraguro, Judgment, José Pedro Medina Zhingre v. Pedro Francisco Zhingre Sauca, 29 April 2013.

84. I.e. Case No. 15, 13th Court of Saraguro, Judgment, Pedro Pablo Ortega Japón v. Manuel Enrique Quizhpe Sarango, 3 January 2014.

85. 13th Court of Saraguro, Judgment, Lauro Vicente Sarango Andrade v. Efraín Porfirio Sarango Ulloa, 7 September 2012.

86. 13th Court of Saraguro, Judgment, Lauro Vicente Sarango Andrade v. Efraín Porfirio Sarango Ulloa, 4 April 2013 (author's translation).

87. Ibid (author's translation).

88. 32th Criminal Court of Guayas, Judgment, Prosecutor v. Johnny Iván Pintag Morocho, 4 December 2012.

89. Supreme Court, Judgment, Prosecutor v. Angel Porfirio González Minga, 21 September 2010.

90. Ibid (author's translation).

91. Constitutional Court, Judgment No. 008-15-SCN-CC, Cases Nos. 0005-11-CN, 0058-11-CN, 0021-12-CN and 0003-13-CN, 5 August 2015.

92. ILO Convention No. 169, supra n. 52 (emphasis added).

93. “Fabián”, academic (interview), 23 April 2014. Nowadays, being considered an indigenous group has its benefits. As Kymlicka (2009, p. 27) put it, indigenous groups, unlike other groups, have the promise of acquiring land rights, control over natural resources, political autonomy, language rights, and legal pluralism.

94. “Bolívar”, lawyer (interview), 7 February 2014.

95. 18th Court of Nabón, Judgment, Ana Lucía Morocho Remache v. Luis Flores Remache Morocho, 31 August 2012.

96. Judiciary Council, Administrative file No. MOT-310-UCD-2013 (DA-130-2012).

97. Ibid, pp. 104–109.

98. Ibid, pp. 1, 2, 189.

99. Ibid, pp. 5–6.

100. Second Criminal Chamber of the Provincial Court of Azuay, Judgement, Ana Lucía Morocho Remache v. Luis Flores Remache Morocho, 3 October 2012.

101. Lema (2009, p. 112) argues that someone can be regarded as indigenous when two criteria are simultaneously met, namely self-identification of the person as a member of an indigenous group and the respective acceptance by such group. Indigenous communities generally consider someone as a member as long as this person participates actively in the community's way of living, its meetings, social events, and work activities.

102. García (2012a, pp. 68–69) (author's translation).

103. García (2002, p. 44) (author's translation).

104. Grijalva and Exeni (2012, p. 601). However, these authors also mentioned that in the Amazonian region the indigenous territories are clearly defined. The authors do not give information regarding the Coastal region.

105. Ibid.

106. Report by the Special Rapporteur, supra n. 81, p. 17 (author's translation).

107. “Mariana”, indigenous judge in the ordinary system (interview), 13 February; María Mercedes Lema, indigenous judge in the ordinary system (interview),19 February 2014; Kurikamak Yupanki, indigenous lawyer (interview), 4 April 2014; “Marcelo”, officer at the Ombudsman Office (interview), 25 March 2014; “Pepe”, indigenous prosecutor in the ordinary system (interview), 31 March 2014.

108. Ramiro Ávila, academic (interview), 19 February 2014.

109. 13th Court of Saraguro, Judgment, Lauro Vicente Sarango Andrade v. Efraín Porfirio Sarango Ulloa, 4 April 2013; 13^th Court of Saraguro, Judgment, Rosa Elena González v. Manuel Asunción Sarango Tene, 20 February 2013; 13^th Court of Saraguro, Judgment, José Pedro Medina Zhingre v. Pedro Francisco Zhingre Sauca, 29 April 2013; 13^th Court of Saraguro, Judgment, Pedro Pablo Ortega Japón v. Manuel Enrique Quizhpe Sarango, 3 January 2014.

110. Supreme Court, Judgment, Prosecutor v. Angel Porfirio González Minga, 21 September 2010.

111. Constitutional Court, Judgment No. 008-15-SCN-CC, Cases Nos. 0005-11-CN; 0058-11-CN; 0021-12-CN; and 0003-13-CN, 5 August 2015.

112. Constitutional Court, Judgment No. 008-15-SCN-CC, Cases Nos. 0005-11-CN; 0058-11-CN; 0021-12-CN; and 0003-13-CN, 5 August 2015, at p. 16 (author's translation, emphasis added).

113. “Rafael”, indigenous prosecutor of the ordinary justice (interview), 24 March 2014.

114. Salgado (2009, p. 90).

115. Judicial Unit of Saraguro, Judgment, Aida Flor Japón Medina v. Jorge Salvador Gualán, 25 August 2015.

116. Judicial Unit of Saraguro, Judgment, Aida Flor Japón Medina v. Jorge Salvador Gualán, 22 October 2015.

117. Judicial Unit of Guaranda, Judgment, Juan Salvador Fogacho Fogacho v. Luis Nicanor Moposita Chimbolema, 2013.

118. Judicial Unit of Latacunga, Judgment, Eduardo Shive Ante v. Carlos Umajinga Sigue, 28 November 2013.

119. 13th Court of Saraguro, Judgment, S/N, 7 September 2012.

120. 13th Court of Saraguro (Judgment), Rosa Elena González v. Manuel Asunción Sarango Tene, 20 February 2013 (author's translation).

121. The Constitutional Court of Colombia, for instance, decided a case in which the accused was already punished by the competent indigenous authorities of his community, but then he declared himself as non-indigenous and requested the intervention of the ordinary forum, trying to avoid the imposition of the indigenous sanctions. The Constitutional Court of Colombia rejected the accused's request stating that although indigenous individuals may decide whether to stay or to leave an indigenous community, it is not possible that they renounce their belonging to a community just to avoid their responsibility for the wrongful acts committed while they were members (Constitutional Court, Colombia, Judgement T-523/97).

122. See for instance, American Convention on Human Rights (ACHR), 22 November 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S., Art. 8(1), and International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, 1916 U.S.T. 521 999 U.N.T.S. 171, Art. 14(1).

123. UNDP (2004).

124. See supra n. 122.

125. Francioni (2007).

126. UNDP (2004).

127. See Department of Economic and Social Affairs of the United Nations Secretariat (2007).

Additional information

Funding

This contribution is part of an ongoing four-year doctoral research project carried out by the author, subsidized by the Research Fund (BOF) of Ghent University.