The Right to Identity and Legal Standing in Proceedings
1. Background
Through Judgment No. 0140-16-SEP-CC, in Case No. 1407-14-EP, dated March 30, 2016, published in Official Register Second Supplement No. 782 of June 23, 2016, the Constitutional Court accepted the Extraordinary Protection Action filed by Augusto Segura, acting as judicial attorney of Kethy Rivera Núñez, against the order issued on July 28, 2014, by the Ninth Civil Judge of Pichincha, within ordinary proceeding No. 17309-2014-0095 for the annulment of a marriage certificate.
The Extraordinary Protection Action was accepted because the constitutional rights to legal certainty and identity, established in Articles 82 and 66, numeral 28, of the Constitution, respectively, had been violated.
2. Two Marriage Registrations
The claimant acted as judicial attorney for Kethy Rivera Núñez, who is the legitimate daughter of the marriage between Mr. Augusto Benigno Rivera Flores and Ms. Soledad Berlineza Núñez de la Cueva.
Mr. Augusto Rivera died on July 19, 2013. Therefore, his daughter went to the Civil Registry of Pichincha to obtain the death registration, but found that the name “Lidia Vidimar Moyana Moyana” appeared in that document instead of her mother’s name as the widow of the deceased.
Considering this to be an error, she filed a complaint before the Civil Registry itself. The institution “determined that there were two marriage registrations, one with Ms. Soledad Berlineza Núñez de la Cueva and another with Ms. Lidia Vidimar Moyana Moyana, without any margin note or sub-registration declaring the dissolution of the marital bond” of Kethy’s parents. Therefore, the second marriage would be null.
She filed a claim for annulment of the second marriage certificate through an ordinary proceeding, pursuant to Article 59 of the former Code of Civil Procedure and Article 95, numeral 3, of the Civil Code.
The case was heard by the Ninth Civil Judge of Pichincha, who classified the claim as “clear and precise.” However, after the evidence had been produced and the proceeding had concluded, the judge declared the nullity of all proceedings due to lack of legal standing, because the claimant, Kethy Núñez, had appeared on behalf of her mother with a general power of attorney, but without judicial authorization, as required by Article 40 of the Code of Civil Procedure.
Núñez requested the revocation of that order, since such defect could be, and had been, cured pursuant to Articles 359 to 362 of the same Code. However, the judge denied the revocation request without analyzing the arguments.
She then filed an appeal against that denial, which was rejected as inadmissible by order dated July 21, 2014. Subsequently, she filed a de facto appeal, which was also denied on July 28, 2014, and this became the subject of the Extraordinary Protection Action.
3. Alleged Violations in the Challenged Order
The claimant stated that, in her order of July 28, 2014, the Ninth Judge made an erroneous interpretation of the legal provisions contained in the Civil Code and in the former Code of Civil Procedure.
At the same time, the appeals were dismissed based on “mistaken criteria,” thereby violating his rights by preventing him from correcting the errors existing in the death registration data of his client’s father, since another person appeared as the surviving spouse instead of his client’s mother.
4. Scope of the Constitutional Court’s Ruling
The Constitutional Court noted that, under the principle of iura novit curia, it is fully empowered to rule on prior orders that were not expressly challenged, as in this case with the orders prior to the order of July 28, 2014.
This principle allows the judge to base their decision on constitutional provisions even when the parties have not invoked them, considering the informal nature of jurisdictional guarantees under Article 86 of the Constitution.
5. Legal Standing and Legal Certainty
The Ninth Civil Judge of Pichincha declared the nullity of the proceeding because there was a lack of legal standing. The claimant was a physician and had appeared in court with a general power of attorney granted by her mother.
However, when Ms. Kethy Núñez requested the revocation, she had already cured the defect in legal standing by granting judicial authorization to a legal professional, pursuant to Articles 359, 360, and 361 of the Code of Civil Procedure, which established that legal standing could be legitimized at any procedural stage, even after the judge had declared the nullity of the proceeding.
Therefore, by declaring the nullity and refusing the appeals filed without any justification, ignoring the legitimization of legal standing through the judicial authorization submitted to the proceeding on July 8, 2014, the right to legal certainty was violated. This occurred because prior, clear, and public legal rules were disregarded in the order of July 8, 2014, which denied the revocation.
The Constitutional Court also stated that, once active legal standing had been cured, the evidentiary proceedings were valid.
6. Right to Identity
The Inter-American Court of Human Rights, in its judgment of February 24, 2010, in the case of Gelman v. Uruguay, determined that the right to identity:
“may be conceptualized, in general, as the set of attributes and characteristics that allow a person to be individualized in society, and in that sense it includes several other rights depending on the rights-holder and the circumstances of the case.”
In the specific case, Article 21 of the Civil Registry Law provided that the Civil Registry itself had to declare the nullity of duplicate registrations.
However, neither the Civil Registry nor the Ninth Civil Judge of Pichincha resolved the merits of the matter. Instead, they relied on formalities to unreasonably limit the exercise of the right to personal identity of the claimant’s mother, imposing excessive obstacles and nonexistent requirements, thereby violating that right.
7. Decision
The Constitutional Court declared the violation of the constitutional rights to legal certainty and identity.
It accepted the Extraordinary Protection Action and, as comprehensive reparation, ordered the following:
To annul the orders of July 28, 2014 — de facto appeal — and June 9, 2014, as well as all subsequent orders issued by the Ninth Civil Judge of Pichincha, namely those dated June 19, 2014, July 8, 2014, and July 21, 2014.
To return the proceeding to the moment at which the violation of constitutional rights occurred, before the order of June 9, 2014.
To order that another Civil Judge hear the case, complying with the ratio decidendi of the Constitutional Court.
To order the Council of the Judiciary to investigate the actions of the Ninth Civil Judge of Pichincha.