The inexcusable error will not be eliminated in Ecuador
It is the majority criterion of the assembly members during the first debate of the draft reforms to the Organic Code of the Judicial Function. They ask to withdraw the sanctioning faculty to the Judicature.
The possibility that the legal concept of inexcusable error be eliminated was discarded, after the draft reforms to the Organic Code of the Judicial Function, whose report was prepared by the Justice Commission, passed the first debate in plenary of the National Assembly.
According to article 109, numeral 7, of the Organic Code of the Judicial Function, the inexcusable error or manifest negligence is a serious cause for which the servant of the Judicial Function can be dismissed. According to this code, the Judicial Council is the agency in charge of the application.
For some jurists and assembly members, a misapplication of this legal figure has been made, since through it the justice operators have been subjected to undue pressure, which is one of the arguments for politically prosecuting the members of the Judicial Council.
Last March, Assemblyman Esteban Bernal and the Azuay Bar Association presented the proposal to eliminate the annotated norm from the Organic Code of the Judicial Function and replace it with judicial error. But in the first debate of the project of reforms to the Organic Code of the Judicial Function that was processed last Thursday, in the plenary session of the Assembly, the elimination was rejected and rather it was talked about modification.
The president of the Justice Commission, Marcela Aguiñaga, confirmed to EL TELÉGRAFO newspaper that after the debate in the plenary session, “there is something that is clear and an agreement has been reached, that there is no possibility of leaving the citizens eliminating the figure of the inexcusable error “.
The new proposal
The Assemblyman of Guayas, Henry Cucalón, considers that this figure should be maintained in the legislation, but be regulated around the most appropriate body to establish it and, if applicable, sanction it, so that it is not necessarily the Judicial Council which is an entity of an administrative nature.
Meanwhile, the legislator of Tungurahua, Luis Fernando Torres, stressed that in itself is not a negative figure, but on the contrary serves to prevent judges from submitting to the will of another or others, so that the general interest prevails.
Esteban Bernal, representative of Azuay, emphasized that the rule is not the problem but how and who are responsible for its application, so the reproach is the discretion that has existed in the application of this figure, in the disciplinary processes developed for the Judicial Council.
Assemblywoman Mae Montaño was more precise and proposed that it be debated if the Judicial Council is the appropriate body to establish whether or not there is an inexcusable error in the actions of the justice operators or whether it would be more viable for the matter to pass to a judge of higher rank.
Marcela Aguiñaga described as interesting and an innovative and creative proposal made by Montaño. “We will have to analyze it and precisely for that was the first debate,” she said, underlining that it will be necessary to define what type of judge would assume that competence.
She considered that the first debate of the reforms to the Organic Code of the Judicial Function has been enriching and proactive, so the observations will be included in the report that this legislative table will elaborate for the second debate.
Among the points of greatest attention of the legislators are those related to negligence, the procedure for the election of the subrogated president of the National Court of Justice, the free legal sponsorship of the future lawyers and the creation of a new instance for the trials of the contentious and administrative.
Proposal of the Judiciary: At the justice table, the Judicial Council proposed incorporating a clear definition in the Organic Code of the Judicial Function of the inexcusable error figure and that the accused servants may request a public hearing to exercise their defense.
5 judges were sanctioned in 2017 by the Judicial Council, at the national level, for incurring inexcusable error.
Other countries also have the norm: this disciplinary norm also exists with other names in Spain, Mexico, Colombia and Costa Rica. (I)