PARTIALLY DISSENTING OPINION OF JUDGE EDUARDO FERRER MAC-GREGOR POISOT ON THE JUDGMENT OF THE INTER-AMERICAN COURT OF HUMAN RIGHTS IN THE CASE OF THE CONSTITUTIONAL TRIBUNAL (CAMBA CAMPOS ET AL.) v. ECUADOR, OF AUGUST 28, 2013 I. PREAMBLE 1. The separation of powers is a substantive element of constitutional democracy. Judicial independence (in its individual and collective aspects) represents an inseparable element for the consolidation – and very existence – of a genuine constitutional and democratic rule of law. The context of this case is of particular importance, because it relates to the “collective removal of the judges” (in the space of two weeks) of the three high courts of Ecuador; that is, the members of the Constitutional Tribunal, the Supreme Court of Justice, and the Electoral Tribunal. 2. As emphasized in this Judgment on preliminary objections, merits, reparations and costs (hereinafter “the Judgment”),1 this collective dismissal “constitutes an attack not only on judicial independence, but also on the democratic order,” which “constitutes a totally unacceptable and inopportune course of action” resulting in “a destabilization of the existing democratic order. And, it is stressed that “the separation of powers is closely related not only to the consolidation of the democratic regime, but also seeks to preserve the human rights and freedoms of the people.”2 3. In the Judgment, the Inter-American Court of Human Rights (hereinafter “the ICourtHR” or “the Inter-American Court”) declared the respondent State internationally responsible for the violation of the rights to judicial guarantees and judicial protection established in Articles 8(1), and the pertinent parts of Article 8(2) and Article 8(4), in relation to Articles 1(1) and 25(1) of the American Convention on Human Rights (hereinafter “the American Convention” or “the Pact of San José”), as well as for the violation of Article 8(1), in relation to Article 23(1)(c) and Article 1(1) of the American Convention, based on the arbitrary impairment of the permanence of the victims in the exercise of judicial office, and the consequent harm to judicial independence and the guarantee of impartiality. 4. I am essentially in agreement with what was decided in this important Judgment. My dissent is focused on the seventh operative paragraph of the Judgment,3 because I consider that the ICourtHR should have made an autonomous analysis of the violation of Article 9 of the Pact of San José (Freedom from Ex Post Facto Laws or the principle of legality) and declared that this principle had been violated. This is because, on the one hand, the State had expressly acknowledged its international responsibility in relation to the principle of legality, “because there were no grounds established by law for the removal from office of the presumed victims”4 and, on the other hand, because there was evidence of the “abuse Case of the Constitutional Tribunal (Camba Campos et al.) v. Ecuador. Preliminary objections, merits, reparations and costs). Judgment of August 28, 2013, Series C No. 268. 1 2 Ibidem, paras. 207, 212 and 221. “7. It is not required to make a ruling on the alleged violation of Article 9 of the American Convention on Human Rights, in the terms of paragraphs 223 and 224 of this Judgment.” 3 This partial acknowledgment of responsibility by the State was indicated in relation to the violation of Article 9 of the American Convention based on the termination of the members of the Constitutional Tribunal. During the public hearing, the State affirmed that “although it is true that the National Congress could make a constitutional and legal analysis, this should have included clear mechanisms to submit to review the tenure and the duration of the functions of the former members of the Constitutional Tribunal. The absence of legal certainty 4