Reservations and Evidence in Criminal Preliminary Investigations

Attorney Esteban Torres Cobo

1. Background

Through Judgment No. 0107-16-SEP-CC, in Case No. 828-11-EP, dated April 6, 2016, published in Official Register Second Supplement No. 782 of June 23, 2016, the Constitutional Court accepted the Extraordinary Protection Action filed by Marlene Rodríguez against the judgment issued on April 26, 2011, by the First Criminal Chamber of the National Court of Justice, within the criminal proceeding for statutory rape — private criminal action — No. 0658-2010, brought by the claimant against Mr. Rodrigo Acosta.

2. Origin of the Extraordinary Protection Action

Ms. Marlene Rodríguez filed a private accusation for the crime of statutory rape against Mr. Rodrigo Acosta. The First Judge of Criminal and Traffic Guarantees of Napo took jurisdiction over the case and, in a judgment dated May 17, 2010, dismissed the private accusation because neither the existence of the crime nor the liability of the accused had been proven.

She appealed before the judges of the Sole Chamber of the Provincial Court of Justice of Napo, who denied the appeal in a judgment dated July 7, 2010. Against that decision, she filed a cassation appeal before the judges of the First Criminal Chamber of the National Court of Justice.

In a judgment dated April 26, 2011, the cassation judges declared the appeal inadmissible, and this final decision became the subject of the Extraordinary Protection Action.

3. Challenged Judgment

“WHEREAS (...) FIFTH: DECISION.- (…) 2. Pursuant to the second paragraph of Article 349 of the Code of Criminal Procedure, this Chamber is prohibited from conducting a new assessment of the evidence, as requested by the appellant in cassation; 3. From the analysis of the challenged judgment, this Chamber has been unable to establish the existence of a violation of the law under the requirements of Article 349 of the Code of Criminal Procedure; 4. However, notwithstanding the foregoing, and since it is evident that Dr. Ángel Dávila Albán, First Judge of Criminal and Traffic Guarantees of Napo, committed a serious procedural irregularity by limiting the right to defense of the private accuser through the illegal and improper argument that the preliminary investigation was a document reserved from the victim, which also prevented the prosecution witnesses from testifying, leaving the accused crime in impunity, this Chamber orders that the National Council of the Judiciary be notified so that it may analyze the conduct of this judicial officer in accordance with Article 124 of the Organic Code of the Judicial Function. For the foregoing considerations, this Chamber, ADMINISTERING JUSTICE IN THE NAME OF THE SOVEREIGN PEOPLE OF ECUADOR AND BY AUTHORITY OF THE CONSTITUTION AND THE LAWS OF THE REPUBLIC, declares the cassation appeal filed by the complainant inadmissible (…)”

4. Claimant’s Request

The claimant considered that her right to due process had been violated because her right to defense and to a reasoned decision had been limited.

This violation of rights began with the trial judge, the First Judge of Criminal and Traffic Guarantees of Napo, who, through the illegal and improper argument that the preliminary investigation was a document reserved from the victim, prevented the prosecution witnesses from testifying, leaving the accused crime in impunity.

The violation continued when the cassation judges failed to properly justify their ruling.

5. Right to Defense

The Constitutional Court stated that this right, recognized in Article 76(7)(h) of the Constitution, provides a series of guarantees to make it effective.

Thus, in the specific case, “the corresponding judicial authorities observed and guaranteed the constitutional principles of immediacy, orality, contradiction, and proper defense; since, as established, the procedural parties requested the taking of the evidence they considered relevant to support their allegations in the proceeding.”

Such evidence was produced, except for some evidence excluded due to the analysis of infra-constitutional rules. In addition, the parties were able to properly exercise their right to appeal.

Based on the foregoing, the Constitutional Court concluded that there had been no violation of the right to defense.

6. Reasoning of the Decision

For its analysis, the Constitutional Court applied the reasoning test.

Regarding reasonableness, it concluded that the rules and legal sources on which the judges of the National Court based their decision did exist; therefore, this parameter was satisfied.

Regarding logic, the Constitutional Court stated that the Chamber, for the purpose of ordering an investigation into the trial judge, reviewed his procedural actions, specifically the legal interpretation made by the trial judge in response to an evidentiary request from the claimant.

The Chamber then stated that it was not authorized to conduct an evidentiary assessment, but nevertheless concluded that “the impunity of the accused crime” had occurred. This reasoning clearly implied an assessment of evidence.

For these reasons, the Constitutional Court established the existence of dissimilar and contradictory statements in the judgment, meaning that the requirement of logic had not been observed.

Consistently, comprehensibility, as the final parameter of the test, was also violated, since the contradictions in the ideas presented prevented the ruling from being understood.

7. Decision

The Constitutional Court declared that the right to due process, specifically the guarantee of reasoning, had been violated.

It accepted the Extraordinary Protection Action and ordered the following as comprehensive reparation:

a) To annul the judgment of April 26, 2011, issued by the judges of the First Criminal Chamber of the National Court of Justice within criminal proceeding — private criminal action — No. 0658-2010, initiated by the claimant against Mr. Rodrigo Acosta.

b) To order that another Tribunal of the Criminal Chamber of the National Court of Justice hear and resolve the cassation appeal, fully applying this constitutional decision and considering both the operative part of the ruling and its arguments.