Does the COGEP Encourage Injustice?

In theory, the new Organic General Code of Proceedings was supposed to be a necessary legal advancement to modernize non-criminal judicial proceedings and guarantee citizens’ rights. People were no longer supposed to spend seven years in a lawsuit, only to waste money and lose all hope of justice.

It meant leaving behind the old Code of Civil Procedure and directing all non-criminal disputes through four simpler, clearer, and faster procedural routes: ordinary proceedings, executive proceedings, summary proceedings, and, finally, a new one: payment-order proceedings.

From almost 80 types of existing proceedings for non-criminal matters, we moved to only 4. It was a good initiative and, with its enactment, certainly a step forward.

However, the Code has not turned out to be the expected cure-all and is increasingly raising criticism among lawyers and, of course, among users who suffer from its flaws.

One of its problems, among others, is its application: judges often apply it however they want.

The application of the COGEP, for example, is not the same in Ambato as it is in Quito or Guayaquil. A claim with similar characteristics in an ordinary proceeding may be dismissed by one court and admitted by another. Just ask any trial lawyer. It is outrageous.

However, the Code has not turned out to be the expected cure-all and is increasingly raising criticism among lawyers and, of course, among users who suffer from its flaws.

The discretion provided under the COGEP allows certain judges to dismiss as many claims as are filed before them, arguing that they are unclear or incomplete. They judge prematurely and exceed their authority, knowing that they harm users.

Some say there may be a motivation behind this arising from the judicial evaluation system itself, which gives points to each judge for every case processed and closed. Thus, the more lawsuits that are not even admitted — and therefore processed and closed — the more points the judge receives.

These injustices must be challenged. The Council of the Judiciary has the power to sanction and remove those who repeatedly deny access to justice. However, it is also necessary to consider correcting the legal framework that, in principle, allows this to happen.