On May 22, 2015 the ORGANIC GENERAL CODE OF PROCEDURES was published in Official Register Supplement No. 506.
This Code substantially amends legal proceedings in Ecuador, and perhaps the most important amendment is the implementation of the oral proceeding. Orality does not mean that nothing in writing is accepted, on the contrary, claims and answers are written and documentary evidence (briefs, letters, etc.) is fully accepted.
Orality is focused on the discussion of evidence and arguments. As we have seen in films, during the hearing the parties, witnesses and experts are examined. The declarant is asked questions by the attorney deemed necessary to prove his case, and the other party immediately carries out a cross examination. The judge directs the hearing, hears the statements and questionings thereof, and may request clarifications or explanations.
Before the hearing, the parties must have submitted all documentary or expert evidence in their possession so that the judge, attorneys and those summoned to testify have full knowledge of the matter in dispute, and are prepared to defend or refute the evidence.
The new procedure grants more powers and responsibilities to the judges for the management of the case. The judge must decide, as the case progresses, on the motions and allegations of the parties. The judge must hear the facts and allegations of the parties before the court hearing (known as the “audiencia de juicio”) and must issue a ruling, with few exceptions, at the end of the hearing.
The judge may also take measures to assure the purpose of the litigation. In addition to provisional remedies such as the seizure of money or prohibition to transfer assets (which are currently ordered in exceptional cases), the new Code allows the judge to order other remedies such as the guarantee, suspension, or non-performance of obligations, while the case is argued. Although the Code enables the judge to require counter-guarantees before ordering these measures, we warn of the harm that may arise from the abuse of provisional remedies.
For the new system to work, the increase of the judge´s powers must go hand in hand with an increase in professional quality, and society’s trust in them. A powerful corrupt judge is more dangerous than a corrupt judge with little power. However, we believe that openly examining witnesses and experts is a mechanism to control the performance of those who participate in the case.
With this Code, the legislator has sought a faster process and it is hoped that ordinary cases, which currently take at least four years, are decided in less than one year. But we warn of the possibility that given the urgency of rulings (e.g., that a ruling is issued in the court hearing) poorly reasoned judgments may be handed down, resulting from the impression formed by the judge in the hearing rather than from a full examination of the case.
The new process will require the parties and their attorneys to dedicate a significant amount of time to preparing the case in order to have a deep knowledge of the facts of the case, given that failure to do so may cause them to lose their arguments in the court hearing. In addition to an in-depth knowledge of the facts, the attorneys must be experts in techniques for presenting oral arguments and in examining parties, witnesses and experts.
Another new addition brought by the Code is that the new process and its principles apply to almost all types of cases including employment, tax and administrative cases.
For the oral system to be successful, it will be necessary to increase the number of judges and courtrooms. Judges must dedicate more time to preparing for the hearing in order to thoroughly know the facts of the case, and be present for the whole hearing, which in complicated cases may take many hours and days. Therefore, it is the Judicial Council´s obligation to train the judges and see to these requirements.
Furthermore, it will be essential to promote mediation as an alternative dispute resolution mechanism, as the new system will only function if the percentage of litigations that reach court is reduced.
The Code will begin to be applied after one year, and only to proceedings that begin after the year has passed. Current proceedings and those initiated before the Code comes into force will be processed under the normal regulations currently in effect.
Warning: This newsletter by Perez Bustamante & Ponce is not and cannot be used as legal advice or opinion since it is merely of an informative nature.