The Subsidiary and Residual Nature of Ecuador’s Action for Protection (Precedent)

Attorney Pablo Silva Mejía

1. Background

Through Judgment No. 001-16-PJO-CC, in Case No. 0530-10-JP, dated March 22, 2016, published in Official Register No. 767, Second Supplement, on June 2, 2016, the Plenary of the Constitutional Court issued a binding judicial precedent judgment regarding the jurisdictional guarantee of the Protection Action.

This occurred after the Selection Chamber of the Constitutional Court, for the transitional period, on May 20, 2010, at 10:40, through a selection order and pursuant to the selection parameters established in Article 25 of the Organic Law on Jurisdictional Guarantees and Constitutional Control — LOGJCC — selected Case No. 0530-10-JP, concerning the appellate judgment of a protection action issued by the Third Criminal Chamber of the Provincial Court of Justice of Pichincha.

This judgment resolves important legal issues, such as determining whether the protection action is both subsidiary and residual in nature, or whether it is only subsidiary.

2. Scope of Article 40 of the LOGJCC

This binding case law is based on judgments issued by the Constitutional Court — 001-10-JPO-CC; 013-13-SEP-CC; 016-13-SEP-CC; 043-13-SEP-CC; 102-13-SEP-CC; and 006-16-SEP-CC — in which interpretative criteria regarding this constitutional action were developed based on numerals 1 and 3 of Article 40 of the LOGJCC.

The purpose was to resolve the issue of subsidiarity and residuality of the protection action, which was necessary in order to build a binding judicial precedent to be observed by justice operators and to avoid contradictory criteria in identical legal circumstances.

The judgment states that the protection action should not be considered a mechanism that overlaps with or replaces ordinary justice. Therefore, not all violations of rights fall within the constitutional sphere, since matters of legality have their own suitable avenues — that is, the legal dimension of the right.

In other words, constitutional justice is not empowered to create or declare rights, nor to resolve legal issues that are not based on the violation of constitutional rights.

3. Residuality of the Action

The Constitutional Court defines residuality as the requirement imposed on a person to exhaust all instances of ordinary justice before accessing constitutional justice.

According to the Court, this was not the intention of the legislator when drafting Article 40, numeral 3, of the LOGJCC. Therefore, it is not necessary to exhaust those procedural stages in order to claim the effective enjoyment of a right.

If the protection action were understood in that way, its filing would not be viable, which would lead to its “ordinaryization” and cause it to lose its capacity to protect rights directly and effectively.

Accordingly, the Court rejected the view that the protection action is a residual guarantee.

4. Subsidiarity of the Action

The Constitutional Court states that “the subsidiarity of the protection action arises from the inadequacy or inefficiency of ordinary justice; the legislator has considered the constitutional route as the final mechanism to resolve a conflict which, although it could have been resolved through ordinary proceedings, was not.”

In other words, this action does have a subsidiary nature, because it applies when submitting the disputed matter to ordinary proceedings would cause serious and irreparable harm due to the inadequacy or inefficiency of that route, thereby violating the right to effective judicial protection.

This must be determined by identifying the thema decidendum and its correspondence with the facts described by the active claimant. Therefore, judges have the obligation to enable the avenues of constitutional justice.

If judges consider that other procedural avenues exist for the processing or admissibility of the case, such decision must not be made in the abstract, but rather based on an analysis of the specific factual situation.

This does not mean that the protection action is intended to replace ordinary justice, since when the aim is to obtain the declaration of a subjective right provided for in secondary legislation, or generally the application of infra-constitutional rules, such ordinary legal framework will be sufficient to resolve the case.

5. Purpose of the Protection Action

The legislator has not established that ordinary instances must be exhausted before resorting to constitutional justice. However, it has established that, regarding the violation of rights, it must be analyzed whether the jurisdictional guarantee is adequate and effective for their protection.

The protection action must be a mechanism for protecting rights that have been affected at a constitutional level, and not merely at a legal level.

If every violation were to be brought through this type of action, the protection action would be distorted and turned into an ordinary mechanism.

For this reason, the protection action is subsidiary, but not residual.

6. Effects of the Judgment

The Constitutional Court determined that:

“Constitutional judges who hear a protection action must conduct an in-depth analysis in their judgment regarding the real existence of a violation of constitutional rights and the actual occurrence of the facts of the specific case […] when they do not find a violation of constitutional rights and state this with proper reasoning in their judgment, based on the parameters of reasonableness, logic, and comprehensibility, they may determine that ordinary justice is the suitable and effective avenue to resolve the disputed matter.”

This rule must be applied with erga omnes effect in all similar or analogous cases.