The Governing Council of the Inter-Parliamentary Union,

Having before it the case of 57 members of the Parliament of Ecuador, which has been the subject of a study and report of the Committee on the Human Rights of Parliamentarians following the Procedure for the treatment by the Inter-Parliamentary Union of communications concerning violations of the human rights of members of parliament,

Taking note of the report of the Committee on the Human Rights of Parliamentarians, which contains a detailed outline of the case (CL/180/12(b)-R.1),

Considering the following information on file:

• President Rafael Correa of Ecuador took office on 15 January 2007 on the main platform of setting up a Constituent Assembly with full powers, including the power to dissolve the Congress elected in October 2006, for the purpose of rewriting the Constitution of Ecuador; while Congress agreed to holding a referendum on the issue of setting up a Constitutional Assembly, it refused to empower the Constituent Assembly to dissolve the Congress, and a vote to this effect was adopted on 13 February 2007.

• However, on 1 March 2007 the Supreme Electoral Court (TSE), presided over by Mr. Jorge Acosta Cisneros, called a referendum for 15 April 2007 on the establishment of a Constituent Assembly (AC), with full powers, for the purpose of rewriting the Constitution.

• On 6 March 2007, Congress members belonging to the Partido Sociedad Patriótica and others, together totalling 57 members of the 100-member Congress, voted to dismiss Mr. Acosta as President and Member of the TSE since it was felt that he no longer represented their views, and designated Mr. Alejandro Cepeda Estupiñán to take his place. The 57 Congress members affirm that, in line with Article 209 of the Constitution, the seven members of the TSE are designated not in their individual capacity but as representatives of the political parties obtaining the highest number of votes in the last elections, and that they were therefore entitled to revoke Mr. Acosta, the member designated by the Partido Sociedad Patriótica. In addition, the source stresses that, under the Constitution (Art. 130.8), Congress is competent to oversee the functioning and action of the TSE.

• On 7 March 2007 Mr. Acosta, together with three other TSE members, declared the decision of Congress unlawful and revoked the mandate of the 57 Congress members, affirming that they had interfered with the functioning of the TSE, and debarred them for one year from participating in political life, which decision, according to the source, falls outside the TSE's remit.

• In this regard the source puts forward the following arguments:
  1. Article 155 of the Constitution on the strength of which their mandate was revoked is only applicable to certain specific categories of persons not including members of Congress. There is no other norm in Ecuadorian law under which the TSE could claim such authority.

  2. Members of Congress may lose their mandate solely through a vote by Congress after a procedure before the Comité de Excusas y Calificaciones (Privileges Committee), under Article 3 of the Code of Ethics of the Legislature and Article 136 of the Constitution.

  3. Even if the TSE was competent to sanction them, their right to defend themselves should have been respected, which was not the case as they had not even been informed of the impending decision nor been heard by the TSE.

  4. Even if the Congress members had illegally interfered with the TSE, Article 143 of the Organic Election Law would apply, whereby it is the Supreme Court which is competent to apply sanctions to such members in the event of violations of an electoral nature.

  5. Since the resolution was voted on in Congress by a show of hands, the names of those who voted in favour had not been registered officially. The decision by the TSE to exclude 57 Congress members was based on an arbitrary list including some who had actually voted against the resolution and others who were not in Ecuador that day.

  6. Lastly, the Congress members point out that the TSE decision was taken by three incumbent members, a minority, not the requisite minimum of four.

• The Government subsequently prevented the newly designated member of the TSE, Mr. Cepeda, from taking up his seat in the TSE and ordered considerable police forces to prevent the 57 dismissed Congress members, who had meanwhile been replaced by their substitutes elected at the same time in the October 2006 legislative elections, from entering the parliamentary premises. Some of the dismissed Congress members have since reportedly been ill-treated by the police and by other groups supporting the Government, and the property of some was reportedly damaged, without any action being taken by the authorities.

• On 27 March 2007, in response to an amparo action by an Ecuadorian citizen, Mr. José Miguel Zurita, against the revocation of the mandate of the 57 Congress members, the Judge of the Fifteenth Penal Chamber of Guayas province granted the request and left the TSE resolution without effect. Three of the 57 Congress members who attended the court hearing were reportedly almost lynched as they entered and left the court building. However, after that decision, the reinstated Congress members were still prevented from entering Congress, and decided to meet elsewhere to continue their work. Since then, the TSE has reportedly revoked that Judge and threatened to do likewise with any other judge deciding to grant a similar amparo action.

• On 23 April 2007 the Constitutional Court delivered a final ruling annulling the revocation of the mandates of 50 Congress members (the other seven not having signed the amparo action that was the basis of its ruling), concluding that it had been illegal, one of the grounds being that the Constitution of Ecuador stipulates that Congress members cannot be held responsible civilly or criminally for votes cast and opinions expressed in the exercise of their functions. On 24 April 2007, Congress decided to dismiss the judges of the Constitutional Court on the grounds that their terms had expired in January 2007 and that as a result its ruling was invalid.

• On that same day, on the basis of a complaint from a group of Congress members, the Attorney General issued a detention order for 24 of the reinstated Congress members on the basis of accusations that they had unlawfully continued exercising their functions and had violated the legal security of the State (atentado contra la seguridad jurídica del estado), after which four of them immediately left to seek refuge in Colombia and others went into hiding in Ecuador. The President of Ecuador has since publicly stated that the detention order was inappropriate; however, the group of Congress members behind the complaint does not wish to withdraw it,

1. Expresses alarm at the revocation of the parliamentary mandate of 57 members of the Ecuadorian Congress for a vote cast in parliament and for having exercised their freedom of expression, as acknowledged by the Constitutional Court's ruling, as a result of which over half of the Ecuadorian electorate has been left without its first choice of representation;

2. Stresses that parliamentary immunity for opinions expressed and votes cast in parliament is a cornerstone of representative democracy and firmly protected in parliaments the world over, shielding members of parliament from any judicial or other proceedings for any vote cast and opinion expressed in the exercise of their parliamentary mandate;

3. Affirms that the revocation of a parliamentary mandate is a serious measure which irrevocably deprives a member of parliament of the possibility of carrying out the mandate entrusted to him or her, and that it must therefore be taken in strict accordance with the law;

4. Is deeply concerned therefore that, despite an unequivocal ruling by the highest judicial authority in Ecuador that the revocation was unlawful, the Congress members have been prevented from taking their seats;

5. Is also deeply concerned that 24 of the reinstated Congress members have since been subjected to a detention order which, in the light of the Constitutional Court's ruling, cannot have any legal basis;

6. Notes with deep concern allegations of attacks on the parliamentarians in question and of the lack of any steps by the authorities to look into them; calls on the authorities to investigate any such allegation and complaint and to prevent any recurrence thereof, as is their duty, and would appreciate receiving information in this regard;

7. Considers that the magnitude, ramifications and complexity of the case warrant an on-site mission to Ecuador as soon as possible in order to gather further information, to ascertain the views of all the competent authorities and the parliamentarians concerned, and to pursue possible avenues towards a satisfactory settlement of the case;

8. Requests the Secretary General to seek the approval of the authorities for the mission to take place as soon as possible;

9. Requests the Committee to continue examining this case and report to it at its next session, to be held on the occasion of the 117th Assembly (October 2007), in the light of the information gathered by the on-site mission.

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