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Table of Contents
I. Introduction......................................................................................55
1. Indigenous Peoples in Ecuador and Legal Pluralism........................55
2. Cooperation and Coordination Between Indigenous Legal Systems and Ecuador’s Ordinary Legal System.....................60
II. Choosing the Forum and Being Chosen by the Forum...................63
III. To Hear or Not to Hear a Case: That is the Question................70
IV. The Ne Bis In Idem Rule: a Failed Attempt to Limit the Possibility of Forum Shopping?...................................76
1. La Cocha 1 Murder Case: the First Attempt to Apply the Ne Bis In Idem Principle................................................................76
2. La Cocha 2 Murder Case: The Constitutional Court and Its Particular Conception of the Ne Bis In Idem Rule..................79
3. The Implications of the La Cocha 2 Judgment..................................82
4. Exceptions to the Ne Bis In Idem Rule................................................84
V. Conclusions........................................................................................85
I. Introduction
1. Indigenous Peoples in Ecuador and Legal Pluralism
Ecuador is an ethnically rich and diverse country. There are four main ethnicities: Mestizos (Spanish descendants mixed with Indigenous populations), Afro-Ecuadorians (descendants of enslaved Africans brought by the Spanish during colonial times), Indigenous Peoples (descendants of the inhabitants of the territory before the Spanish colonization), and Montubios (rural peasants from the country’s coastal zone).1 The Indigenous population is not homogenous, and is divided into 14 different nations (called nacionalidades or nationalities).2
Legal pluralism has always existed in Ecuador.3 National law and Indigenous legal systems co-existed even before independence from Spain. However, the manner in which plural legal orders have been accommodated has varied considerably across time. When the Spanish Crown colonized the Tawantinsuyo (the Inca Empire), it applied a segregationist model that kept Indigenous legal systems only for local, non-serious cases between indios, which were permitted as long as they were not contrary to the Spanish religion or laws and did not affect the colonial economic and political order-Indigenous legal systems were subordinate within legal pluralism.4 In 1830 the independent Republic of Ecuador replaced the segregationist model with an assimilationist one, with the purpose of creating one republic under one normative system, with one official language and one official religion.5 Indigenous legal systems became illegal. Yet, Indigenous peoples continued to use and apply their laws. From the 1920s onward, an integrationist model came into play; certain collective rights and Indigenous cultural particularities were legally protected, but the monist legal order remained in force.
The exclusion of Indigenous peoples’ legal systems is an example of the marginalization they have suffered over time. In response, Indigenous peoples organised a peasant resistance, which later became an Indigenous struggle that created one of the strongest social movements in the region.6 Ecuador’s biggest Indigenous organization was founded in 1986. The Confederación de Nacionalidades Indígenas del Ecuador (Confederation of Indigenous Nationalities of Ecuador, CONAIE) is a national organization which has contributed to a relative improvement in the social position of the Indigenous population.7 In collaboration with its own political party, Pachakutik, CONAIE members mounted a series of actions, including protests, strikes and participation in elections.8
The so-called “Indigenous uprising” of 1990 and the Indigenous movement’s continuous pressure during that decade, whether in the streets or through Pachakutik in politics,9 contributed to the adoption of a new Constitution in 1998.10 Among the changes brought by the 1998 Constitution11 was the recognition of Indigenous legal systems as a way to solve internal conflicts. This was the first time in Ecuadorian history that a legal system other than the State-controlled one was formally accepted as valid within the territory. The monistic legal culture began to yield to a pluralistic legal culture.12
Customary Indigenous law is an integral part of the culture and a key element of ethnic identity, to the point that some authors affirm that an Indigenous community without its legal system has lost an important part of its identity.13 Indigenous legal systems embrace a variety of norms, procedures and authorities that regulate the social life of their communities, and that permit them to resolve their conflicts in accordance with their own worldviews, values, necessities and interests.14
The 1998 Constitution did not last long. It was seen as neoliberal and tailor-made to represent the interests of the county’s elite. Rafael Correa Delgado started his presidential campaign in 2006 by advocating for a new, more democratic and socialist constitution.15 Correa won the elections and immediately called for a referendum, asking Ecuadorians if they agreed to change the Constitution. The electorate answered yes and by the end of October 2008, Ecuador had a new Constitution.16
The Constitution of 200817 declares Ecuador an “intercultural and plurinational state”.18 The Constitution maintains, strengthens and incorporates new and special rights for Indigenous peoples and Afro-descendants;19 and awards Indigenous peoples, Afro-Ecuadorians and Montubios the right to establish territorial constituencies to preserve their cultures.20 The most important provisions for the purpose of this article are the Articles 57(10)21 and 171 of the Constitution,22 which provide legal plurality, recognizing judicial and legislative functions to the authorities of Indigenous peoples, based on ancestral traditions and customary law within their territory.
With the recognition of the Indigenous authorities’ powers of adjudication, the Ecuadorian state advanced towards “formal legal pluralism,”23 which moved from the sphere of a struggle by members of excluded cultures to become a state policy.24 The constitutional recognition of Indigenous legal systems has had multiple impacts. First, it gives Indigenous laws the same value and binding power as national laws.25 Second, public institutions, particularly judges and courts, must modify their legally monistic practices,26 by interpreting and applying the Constitution and secondary laws in an intercultural way.27 Third, the Parliament lost its legislative monopoly. Today, Indigenous authorities share the power to create, modify and abolish the laws that regulate their internal affairs.28 Finally, Indigenous legal systems were put on equal footing with national law, which means inter alia that Indigenous authorities have the same legal and judicial powers as national authorities.29 That said, the actions of Indigenous authorities must be compatible with the Constitution and with international human rights law. This is clearly stated in the same constitutional provisions that grant legislative and judicial powers to Indigenous groups. Article 57(10) state “customary law [...] may not violate constitutional rights, in particular women, children and adolescents’ rights”. Article 171 stipulates that Indigenous authorities may not act contrary to the Constitution or human rights as recognized in international instruments.
Similarly, ILO Convention 169 (1989) and the UN Declaration on the Rights of the Indigenous Peoples (2007) seem to suggest that the international community is more lenient and willing to accept and enforce Indigenous legal systems. Nevertheless, these international instruments demand that Indigenous systems respect recognised human rights standards. The scope of human rights and states’ responsibilities to their citizens, however, is not always completely clear. Sometimes these standards cannot be interpreted and applied in the same way they are interpreted or applied in regular proceedings in western states.30
2. Cooperation and Coordination Between Indigenous Legal Systems and Ecuador’s Ordinary Legal System
In Ecuador there is no single Indigenous legal system, rather there are many. As was noted by various respondents, there could be as many legal systems as Indigenous communities. I was able to see by myself that there are variations in the proceedings even between two communities that belong to the same group, speak the same language, live a few kilometres apart, and have continuous contact with each other.31
Being that there are multiple forums in which legal battles can play out it is not surprising to see clashes of jurisdictions between Indigenous legal systems (called justicia indígena, which translates as “Indigenous justice”) and the state’s justice system (called justicia ordinaria, “ordinary justice”) or among different Indigenous legal systems. When there is a conflict between two or more Indigenous forums, a solution is sought through negotiation, and the results vary. Indigenous adjudicators32 from different communities may decide that one of them should hear the case, that the adjudicators of all involved communities should decide the case together, or that the case should be referred to the authorities of the Pueblo, the authorities of the Indigenous nation, or even to the ordinary justice system.33
Conflicts between Indigenous justice and ordinary justice are another matter. Negotiation plays no role and, according to the Constitution, the Parliament should have passed a law on the cooperation and coordination among both types of justice systems. No such law has been adopted yet, despite the different drafts that have been submitted over the past decade.34
This article will present the different scenarios Ecuador’s legal pluralism offers to citizens and forums towards the settlement of disputes. It is the result of documentary research and fieldwork conducted in the country in 2013, 2014 and 2015 by means of interviews, informal conversations, and archival research in seven cities (Quito, Guayaquil, Cuenca, Saraguro, Guaranda, Loja and Riobamba) and four Indigenous communities: Saraguro and Tucarta (Province of Azuay), San Lucas (Province of Loja), and Pambabuela (Province of Bolívar). All of these communities belong to the Kichwa Nation.35 The interviews were with judges, prosecutors, public servants, academics, activists and Indigenous leaders. In total, 33 interviews were conducted.36
The remainder of this article will be structured as follows: section II presents the concepts of “forum shopping” and “shopping forums”, showing how these phenomena are present in Ecuador. Examples given by the respondents or through existing legal doctrine are given, and the opportunities and challenges regarding the choice of forums and disputants may have in terms of access to justice are discussed. Section III shows that Ecuador’s Constitution provides that the administration of Indigenous justice is a collective right Indigenous nations have, but this study maintains that such a collective right does not imply absolute discretion by Indigenous adjudicators. Their discretion is limited by the members’ individual rights to access to justice. Exercising discretion means having a choice, and therefore every time the adjudicators decide to accept a complaint they are “shopping” the dispute. Section IV examines a strategy that has been established to control or reduce forum shopping and shopping forums, namely through the ne bis in idem principle, according to which an individual who has faced trial in one system should not be tried again under the other system. Finally, Section V includes concluding remarks, stating that if well controlled and carefully analysed on a case-by-case basis, forum shopping and shopping forums could, in fact, be beneficial to individuals and communities, fostering access to justice and the protection of human rights, without disrespecting the communities’ autonomy. Conversely, if poorly controlled or badly regulated, forum shopping and shopping forums could irreparably affect justice, harm individual rights or create impunity, leaving victims or less powerful members of the communities unprotected.
II. Choosing the forum and being chosen by the forum
Forum shopping has been defined as “the act of seeking the most advantageous venue in which to try a case”.37 It occurs when disputants “have a choice between different institutions and they base their choice on what they hope the outcome of the dispute will be, however vague or ill-founded their expectations may be”.38 Traditionally, forum shopping was understood to take place horizontally or vertically.39 A party forum shops horizontally when they choose the best venue for their interests from among multiple same-level courts (e.g. choosing among courts belonging to the same federal state or among first instance criminal courts of the same locality). Forum shopping can also take place vertically when a party is trying to move between courts of different levels (e.g. moving from a state court to a federal court). Modern conceptions of forum shopping not only include the strategic choice of adjudicatory forum but also attempts to litigate identical or related claims in multiple forums at the same time (simultaneous forum shopping) or presenting successive related petitions (sequential forum shopping).40
The idea behind all these types of forum shopping is the same: the party that shops is seeking an advantage or wants to begin the proceedings with the odds in their favor. The choice of forum would then be a “rational choice” where disputants act strategically in order to maximize their interests and benefits.41 However, empirical research in Ecuador shows that forum shopping is not always a strategic and rational action. The decision-making process is far more complex, involving reasons related to power and politics, or lack of access to formal justice due to factors including time, money or language. As Simon Thomas put it, “Legal anthropological research shows that forum-shopping practices are embedded in social, cultural, and political contexts and therefore encompass a broader scope than legal scholars’ rational choice assumptions”.42
The options for choosing the venues in which to allocate a case can vary for number of reasons.43 Individuals may have a limited knowledge of national law, and therefore it is not really an option for them. Similarly, individuals may understand national law very well, but it is not accessible, and therefore they are forced to resort to Indigenous law. Individuals with good knowledge of national law and who have the means (economic, linguistic, cultural, etc) to access it have more options to choose from.44
The parties are not the only ones that shop forums, as the opposite could also occur: forums search for disputes to advance their own interests. This is known as shopping forums. In studying a legally pluralistic society, Von Benda-Beckmann noted:
Not only do parties shop, but the forums involved use disputes for their own, mainly local political ends. These institutions and their individual functionaries usually have interests different from those of the parties, and they use the processing of disputes to pursue these interests. So besides forum-shopping disputants, there are also ‘shopping forums’ engaged in trying to acquire and manipulate disputes from which they expect to gain political advantage, or to fend off disputes which they fear will threaten their interests. They shop for disputes as disputants shop for forums. Indeed, manipulating with disputes seems to be a favorite pastime of many functionaries.45
In talking about Ecuador, Ávila Linzán shows that in certain communities their members access either ordinary or Indigenous courts. Generally, when ordinary justice delays a ruling on a case or does not rule in the benefit of a community member, community members may resort to Indigenous justice (sequential forum shopping).46 Indigenous adjudicators can also be political, administrative or religious leaders in their communities, and can seek to legitimize their management policy by incentivising forum shopping, demonstrating how they can solve a conflict that took too much time or was not solved properly, in their view, in the ordinary justice system.
Grijalva claims Indigenous justice and ordinary justice as appear to operate in a subsidiary and parallel way (although not necessarily in an equal and just level playing field). When one jurisdiction fails, it seems to activate the other one. Therefore, in his opinion, it is not unusual that those who are not satisfied by the decisions of Indigenous justice to attempt to activate ordinary justice, and at the same time, those who reject the decisions of ordinary courts can trigger the involvement of Indigenous courts.47
In criminal law cases, the choice of forums could stem from an effort to try to avoid jail time for serious crimes. Indigenous legal systems in Ecuador do not use prison as punishment, because it is considered useless. The aims Indigenous justice are said to have include truth-finding, redressing victims and avoiding retaliation from the victims’ families, recovering the harmony within the community, and “curing” the accused.48 To accomplish these goals, those who are found guilty must apologize in public, compensate the harm, and depending on the crime, receive a cleansing bath with ice-cold water, be whipped or receive other types of corporal punishment, do communal work, or be expelled from the community temporarily or even definitively if the adjudicators believe that the offender cannot be rehabilitated. The choices available would then be, on the one hand, to stand trial in an Indigenous forum and, if found guilty, being convicted to sanctions not involving jail time, or, on the other hand, to stand trial in an ordinary court and, if found guilty, face imprisonment.
Some individuals are well aware of the choice between Indigenous sanctions and ordinary jail-time punishment, and when the moment comes they seek to maximise their benefit. For example, on June 2012, Nelson assaulted a 13 year old girl in her own house. Nelson was found guilty of the crime of rape by an ordinary criminal court and convicted to 16 years of criminal imprisonment. Once Nelson learned the punishment, he self-identified as an Indigenous man and managed to convince Indigenous leaders of a Cayambi Indigenous community to request the ordinary court to refer Nelson’s case to the Cayambi Indigenous adjudicators. The ordinary court accepted the request and the case was sent to the Indigenous justice system. Nelson was found guilty again by the Indigenous adjudicators, but this time he got a different punishment. Nelson received in total six lashes. He had to take a cleansing bath with stinging nettles, aromatic smoke and rose petals. He had to pay US$10,000 to the victim’s family, turn over US$8,000 for the purchase of a property for the victim, and US$2,000 for the victim’s psychological treatment. Finally, Nelson was sentenced to six years of communal work.49
Nelson’s case and similar cases of the rape of children and the elderly received the attention of the national media and several critics.50 For instance, “Irene,” a feminist activist, said: “it was outrageous to see how a rapist bathes with cold rose water, as part of the punishment! That is a message, a meaning and a terrible symbolism of what rape means to women”.51 As a result, the Judicial Council (Consejo de la Judicatura), which oversees the functioning of the ordinary Judicial branch, opened administrative proceedings against the judges from this system who referred the cases to Indigenous adjudicators, and the President of the Judicial Council publicly requested the Parliament to pass the Coordination Act mandated by the Constitution, and to define the jurisdiction of the Indigenous justice.52 That Act has not yet been adopted. Both the feminist activist and the President of the Judicial Council criticized Nelson’s case because they believed his crime remained in impunity.
When a forum is perceived to favor one of the parties, its impartiality could be questioned. For instance, “Carlos”, a first instance judge in the ordinary justice system, explained that during his two years in office in a region where the Indigenous population is high, his ideas on the Indigenous justice gradually changed. In Carlos’ opinion, the party seeking justice would be the one that presented the complaint in his office, and the party that wanted to escape justice or was afraid of a penalty was the one activating Indigenous justice and demanding Indigenous leaders request the ordinary judge relinquish jurisdiction and refer the case to the Indigenous forum. In the judge’s words:
When I arrived at this court [...] I used to think that the Indigenous justice was good. Who would be better to solve their problems than themselves! I used to [think that] if I have a problem in my family, who better to solve the problem but ourselves. I was saying the same regarding Indigenous justice: they should solve their own problems. So I came with high expectations of collaboration and coordination with Indigenous justice. It was good, I thought it was very good. However, since I have been here, they have requested I relinquish my jurisdiction, and absolutely all the requests have come from the debtor who did not want to pay. The debtor who did not want to pay, he wants me to relinquish my jurisdiction. The lawbreaker, the one who punched someone else, the one who stole, they want me to relinquish my jurisdiction. The one that doesn’t want to go to prison, they’re the one who wants me to relinquish my jurisdiction. The father who owes child support and cannot pay or doesn’t want to pay, he wants the relinquishment of my jurisdiction. Ultimately, the person who wants to benefit from something or wants a more benevolent penalty is the one requesting the relinquishment of jurisdiction. The others did not ask me to relinquish, rather, the other parties rather oppose the request [...] Justice is called into question, the impartiality of the Indigenous authorities gets questioned, the objectivity of the Indigenous justice, their disinterest. I do not like this! [...] To ordinary justice comes the one who wants to be paid, the one who feels wronged. But to Indigenous justice, to trigger Indigenous justice, goes the person fearful of facing a penalty. He is the one activating Indigenous justice, the one who urges Indigenous authorities to request me to relinquish my jurisdiction”.53
Carlos’ impression is confirmed by ethnographic studies54 that argue that in certain localities young Indigenous women seem to have more trust in the ordinary justice system than in the Indigenous system.55 Cases involving domestic violence, divorce, paternity disputes, and child support are submitted to the ordinary justice system by Indigenous women, “who are becoming aware that solutions can be found in places outside the Indigenous justice”.56 Choosing the ordinary forum is not well perceived by the male members and it goes against the customs of the community, but nevertheless, women search for a different solution from their own justice, an attitude that “could force a review of the community rules”.57
Indigenous women, however, do not always succeed in getting protection in a different forum. Lavinas Picq discusses the case of an Indigenous woman, Nono, who repeatedly suffered mistreatment by her husband, Remache, an important Indigenous leader of their locality and a congressman in the national Parliament at the time. “Whenever Nono tried to report violence in the community, she was told that this was a personal matter to be solved within her home. Yet, she found little support to secure her well-being.”58 Nono denounced Remache before the ordinary justice system, but Remache, his lawyers, and several Indigenous leaders strongly argued that the case had to be handled by the Indigenous justice system. After being pressured by her in-laws, Nono dropped the charges in the ordinary system, while Remache remained unpunished. Lavinas Picq concluded that this case “reveals how Indigenous justice can be used as a tool to shield the accused from accountability instead of protecting victims”.59
Leaders or persons close to them being shielded from prosecution was also reported by “Bolívar,” a lawyer who has been studying the Indigenous justice and supporting Indigenous communities for a long time. He recognised that there is corruption in some communities where lawyers use Indigenous leaders to have prisoners released from jail, the result of these practices being impunity.60 Similarly, Llasag Fernández, an Indigenous lawyer, claims that some Indigenous authorities are being used by political parties in response to particular interests.61
The lack of clear rules on jurisdiction offers an opportunity for forum shopping, with all the accompanying possibilities of injustice and impunity. At the same time, this can also create an opportunity for forum selection that could enhance efficiency, or advance the rights of vulnerable or marginalized groups or individuals in Indigenous communities. Everything depends on who is doing the shopping. Is it a rapist who wants to avoid prison? Is it an abusive husband or the corrupt leader who wants to be shielded from prosecution? Or is it a victim of domestic violence who has not received a solution to her problem? Is it a mother who has not received alimony or child support for several months and does not have enough resources to feed her children? Was the decision-making process conducted individually, within the family, or within a subsection of the main group? These type of questions are important to pose, so as to clarify whether the parties’ right to access justice has been enhanced or diminished.
As to shopping forum, to encourage the use of the Indigenous justice system as a way of recovering or strengthening an important feature of one’s culture is one thing. Another altogether is capturing cases to propel political, economic, or religious interests in favor of the few. Moreover, as will be explained in the next section, the administration of Indigenous justice is conceived of as a collective right of Indigenous nations, but such a collective right does not imply absolute discretion of Indigenous adjudicators. Their discretion is limited by the individual right of community members to access to justice. Having discretion means having a choice, and when adjudicators decide which cases they are going to hear, they are “shopping” for the controversies they want to handle while ignoring others, which could have serious impacts on the individuals whose cases were not selected.
III. To hear or not to hear a case, that is the question
Article 57(10) of the Constitution provides that the State recognizes and guarantees to Indigenous communities, peoples and nations, in accordance with the Constitution and with the covenants, agreements, declarations and other international instruments on human rights, “the right to create, develop, apply, and practice their own customary law”.62
Indigenous justice is a collective right, but the discretion the Indigenous nations have in deciding whether to exercise this right is not absolute. Members of Indigenous communities also have the right to access to justice as individuals, including to access their own legal system. In other words, the collective right of an Indigenous group to use and apply their laws is limited and reinforced by the individual right of members of the group to access to their own legal system. Both rights reinforce each other in the sense that both point to the direction of recognising Indigenous law as an adequate venue to resolve conflicts, a venue that respects and reinforces the culture, social organization and autonomy of Indigenous peoples. But the individual rights of the members of the community also serve as a limit to collective rights. For instance, every person whose human rights have been violated is entitled to obtain clarification of the events that led to the violation of human rights and the corresponding responsibilities, through the investigation and prosecution of those responsible.63 Individuals have the right
to go to a tribunal when any of [their] rights have been violated, to obtain a judicial investigation conducted by a competent, impartial and independent tribunal that will establish whether or not a violation has taken place and will set, when appropriate, adequate compensation.64
Implicit in the collective right of Indigenous nations to administer justice is the individual right members of their communities have to demand their authorities resolve conflicts through the application of their customs, culture and customary laws by their own competent authorities. International human rights law provides that the right to be heard by a competent judge is one of the basic due process of law guarantees states must offer to individuals in order to achieve a fair trial.65 In fact, the right to be heard by a competent judge is not only a basic principle of due process of law66 but a pre-condition of it.67 When an incompetent judge hears a case, “there was no due process, given a failure of an essential nature, and that no actions taken in such conditions could have produced [...] legal effects”.68
It is not the task of international law to define who should be the competent judge. This is the exclusive duty of national law. As the Inter-American Court of Human Rights (IACHR) put it, “the existence and jurisdiction of the competent tribunal derive from the law”.69 The only requirement international law sets is that individuals have to be tried by courts or tribunals using established legal procedures. “Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts or judicial tribunals”.70 Removing individuals from their natural courts and referring their cases to special courts, for instance, to military tribunals, has been determined to be a violation of the right to a fair trial.71
Consequently, there would be a violation of the right to be heard by a competent court if an individual who was supposed to be heard by an Indigenous legal system is brought to the ordinary justice system, or vice versa. If such a violation is detected, the proceedings would be invalid, because one of the pre-conditions -the competence of the judge- was not met. This demonstrates the importance of determining who the competent judge is: the validity of the entire procedure rests on the competence of the adjudicator.
At the same time, the individual right to be heard by an Indigenous adjudicator should not be absolute. In certain cases, good reasons could be brought forward by the community in order to refuse to hear a particular case (for instance, the protection of community cohesion). Therefore, the discretion of adjudicators in deciding whether they are able or willing to resolve a conflict should be carefully exercised and balanced with the individual right to access a particular legal system. Indigenous authorities should give good reasons if they decide to refer the dispute to the ordinary justice system. García mentions that the decision to send a case to the ordinary justice system should be agreed upon by the adjudicators and the parties.72 It goes without saying that if Indigenous authorities refuse to hear a case, they should not prevent the individual from searching for justice in another Indigenous forum or in the ordinary system. The worst case scenario would be that the individual, having access to multiple forums, is not heard by any of them.
Practices in this regard are heterogeneous. “Efraín” mentioned that only in extreme cases, usually involving serious crimes, he and other Indigenous authorities decide to refer the case to the ordinary justice system. “We entrust [the case] to you, Mr Prosecutor, Judge. We’ve come this far,” were Efraín’s words. 73 He also mentioned that it was very risky for them to attempt to solve every type of conflict, because his community was still in a process of reconstructing and strengthening its customary law.
I was told that in some communities, everyone knows that certain issues are not heard by the Indigenous authorities, either because the authorities have no expertise in resolving those issues, because the conflicts are too serious to be handled in the “mediation style”74 Indigenous adjudicators use, or because there has been a decision by leaders that it is better for the community’s stability and cohesion to refer specific cases to the ordinary system. “Mesías” mentioned that his community does not hear paternity disputes and child support disputes.75 “Homero,” an Indigenous lawyer working at the Public Prosecutor’s Office on Indigenous Affairs,76 said that in his locality rape was very rare, and because of that the few cases that occurred in Indigenous settlements were referred to his office.77 Mario Melo, an activist and academic, commented that when a murder occurs in Sarayaku territory, the leaders expel the murderer from the community and at the same time they refer the case to the ordinary justice system.78 In Melo’s opinion, that is a valid decision, based on community self-determination.79
There is also the possibility that Indigenous authorities work with authorities in the national justice system. “Pepe,” an Indigenous lawyer who works at the Public Prosecutor’s Office on Indigenous Affairs,80 sometimes receives criminal complaints concerning Indigenous individuals. Pepe is a public prosecutor and has at his disposal all the investigative tools of the Public Prosecutor’s Office (laboratories, crime scene investigators, etc.). He starts the investigation, and when he has enough evidence against the alleged perpetrator, he presents his results not to an ordinary judge, but to the Indigenous adjudicators of the perpetrators’ locality, so that they can hold a hearing and decide on the guilt of the suspects. Pepe proceeds in this way every time he believes the Indigenous forum has jurisdiction to hear the dispute. In his legal-anthropological research in Ecuador’s highlands, Simon Thomas discussed a case where the parties, both of them Indigenous, solved an adultery case using traditional ways of dealing with conflicts, but before a Teniente Político, an appointed political official from the ordinary system. Simon Thomas concluded that the line between customary law and Ecuadorian national law is in practice rather blurred.81
The coordination between authorities is not always easy or even planned. “Miguel”, an Indigenous leader,82 recounts a case in which a man was accused of murdering his wife. Both the perpetrator and the victim were Indigenous, but the case was in the hands of a public prosecutor from the ordinary justice system. The family of the victim, tired of waiting for the prosecutor to accuse the alleged perpetrator and outraged to see him walking free, petitioned Miguel and his fellow Indigenous authorities to intervene in the matter. Miguel and the other authorities, without challenging the jurisdiction of the public prosecutor, started their own investigation (this being a good example of simultaneous forum shopping). After questioning the suspect for three days, he confessed to the crime and gave details of important evidence (including the location of the clothes he wore during the murder, which were covered with the victim’s blood). With all that evidence, Indigenous authorities went to the prosecutor’s office, and according to Miguel:
We clearly said to the prosecutor and the police: ‘What have you done so far? These are our results. Here’s the suspect. Take a good look at him so you do not demonize us saying that we had punished him. Here is the person, completely healthy and safe. There he is. You check.’ They looked at him, and then we continued: ‘Mr Prosecutor we leave this individual in your hands.’ The daughters did not allow their father to stay at home. They said, ‘how are we going to live with a criminal in the house. Suppose that he kills us too’. We didn’t even think of sending him to jail. No. Because of the daughters and other relatives insisted: ‘he has to go to jail, we do not want him here.’ Because of that we told the prosecutor: ‘Mr Prosecutor here he is, and here’s our job, the report in writing of all our activities. Here Mr Prosecutor, that’s how it’s done!’”.
Indigenous adjudicators or the parties may not only seek the support of the ordinary system, but for also the support of Indigenous authorities from other communities. “They ask us to do them the favor of solving their conflict”, was a phrase I heard from several Indigenous respondents. Similarly, Simon Thomas studied a murder case in Zumbahua, in which the suspects all originated from Guantópolo, but it was solved in La Cocha. The authorities of Guantópolo believed that the authorities of La Cocha had more expertise in murder cases, and the La Cocha community seemed to offer more guarantees of impartiality.83
It is also possible that Indigenous leaders remain passive. Kurikama Yupanki, an Indigenous lawyer working on Indigenous justice, mentioned that he personally knew several communities where the president of the cabildo (the organization of Indigenous leaders that among other activities administers justice) remained inactive regarding certain cases, but acted with diligence in others, the only difference being whether the cases were considered interesting or not. In an interview, Mr Yupanki recalled a dialogue between himself, a community member and the president of a cabildo:
“There are presidents who run when something is of their interest, but when they do not care, they don’t do it!” [A community member talking to Mr Yupanki] ‘Compañero (comrade), five months ago we ask the president to do [justice]. He didn’t do it! He didn’t do justice!’ And some even say ‘compañero, I have begged so much for him [the president] to do me a favor, and he doesn’t want to do me a favor’. I say [to the president of the cabildo]: ‘excuse me! Dammit! How come you do not want to do them a favor? You don’t have to do favors! You, according to the Constitution, must be the authority. According to the Constitution, you are the authority, you must do justice!’ [With a sarcastic voice and imitating the president] ‘I don’t want to do them a favor, I don’t want to do them a favor!’ And this happens in many communities!84
The examples mentioned above demonstrate two possible outcomes of shopping forums. Having different forums could, in fact, foster individual access to justice and respect the autonomy of Indigenous communities. If for good reasons the Indigenous adjudicators are unwilling or unable to solve a controversy, the authorities or the parties involved may seek the support of the ordinary justice system or other Indigenous forums. But if there are no good reasons for the Indigenous authorities to abstain from resolving the controversy, a pernicious effect could occur. The Indigenous forum could be shopping for disputes that are important or relevant for the adjudicators, either because one or both of the parties are influential or well-connected persons within the community, or because the controversy is attractive enough to expend some time solving it, because the authorities are in the mood for “doing favors” to those who seek their intervention. Conflicts involving community members with no political or economic influence, without any extra parte repercussion, or whose cases are not attractive enough, could be discarded by the Indigenous authorities in an unfair and illegitimate use of their jurisdictional discretion. If the affected individuals lack the means to turn to the ordinary justice system or if they are unable to convince other Indigenous forums to solve the dispute, their right to access justice would be illegitimately violated. As mentioned above, the worst possible scenario would be to have multiple forums available to solve disputes, but for none of them actually solve the case.
IV. The ne bis in idem rule: a failed attempt to limit the possibility of forum shopping?
This section will discuss the ne bis in idem85 rule as a mechanism originally intended to limit forum shopping and shopping forums. The first attempt to apply the rule was the La Cocha 1 first instance judgment, which decided that the ordinary forum should not hear the case because it had already been resolved by an Indigenous forum. The judgement was quashed in appeal, but it contributed to the debate on the issue. The Constitution of 2008 recognized the ne bis in idem rule as a way of limiting the action of one system if the other has already decided the case. However, the Constitutional Court in La Cocha 2 emitted an interpretation that opened the possibility of a second trial.
1. La Cocha 1 Murder Case: The First Attempt to Apply the Ne Bis In Idem Rule
On 21 April 2002, Maly was murdered in the Indigenous community of La Cocha. Indigenous authorities conducted inquiries and investigations, after which, on May 5, 2002, the community’s General Assembly, its highest authority, determined that Nicolas, Juan and Jaime were responsible for Maly’s death.86 The three wrongdoers were punished according to Indigenous customary law.87 Two months later, on July 3, 2002, a public prosecutor from the ordinary justice system decided to open a criminal investigation against the wrongdoers, disregarding that they already received punishments according to the Indigenous system. On September 9, 2002, a public hearing was conducted before Mr Poveda, the criminal judge appointed to the case.88 Judge Poveda passed his judgement the next day. He declared that the case had already been resolved by the Indigenous authorities of La Cocha and that the ne bis in idem rule had to be applied.89 The public prosecutor appealed Judge Poveda’s decision arguing that the ordinary forum and not the Indigenous forum had jurisdiction over the matter. The case was referred to the Court of Justice of Cotopaxi (Corte Superior de Cotopaxi), which agreed with the prosecutor and quashed Judge Poveda’s ruling, sending the case back to the first instance court. The new first instance judge appointed to the case decided to convict the three wrongdoers to imprisonment according to Ecuador’s Criminal Code. Nevertheless, the three men were never apprehended. Two of them returned to the community where they were rehabilitated and offered economic assistance to Maly’s widow.90
Judge Poveda’s ruling, although it was not confirmed in appeal, provided food for thought to the arguments for91 and against the application of the ne bis in idem.92 In 2008, with the adoption of the current Constitution, this issue was settled. Article 76(7)(i) of the 2008 Constitution provides that “no one shall be tried more than once for the same cause and matter. The cases decided by Indigenous jurisdiction should be considered for this purpose”.93 The new Organic Code of the Judiciary reinforced that rule by stating in Article 344: “the decisions of the authorities of Indigenous justice shall not be reviewed by the judges of the Judiciary or by any administrative authority, at any stage of the proceedings, without prejudice of constitutional review”.94 Finally, Article 5(9) of the new Criminal Code states: “no person shall be tried or punished more than once for the same facts. The cases decided by Indigenous jurisdiction are considered for this purpose”.95
Ecuadorian law seemed to be very clear in stopping sequential forum shopping. The general ne bis in idem constitutional rule covers all cases of double jeopardy, whether the deciding authority is Indigenous or not. For the Constitution, it suffices that the “cause” or “matter” is the same to trigger the ne bis in idem rule. It is equally forbidden for Indigenous adjudicators to hear a case already tried by ordinary adjudicators, as well as for ordinary adjudicators to hear a case already tried by Indigenous adjudicators. The Criminal Code goes even further by prohibiting double trial or punishment on the basis of the same “facts”. Unlike the Constitution and the Criminal Code, the Organic Code of the Judiciary only prohibits double jeopardy if the first deciding authority was an Indigenous one. The Organic Code of the Judiciary remains mute regarding cases where the first deciding authority is from the ordinary justice system.
The only exception to the prohibition of ordinary judges reviewing the decisions of Indigenous adjudicators is the constitutional review the Constitutional Court carries out when an individual submits a “motion for extraordinary protection” (acción extraordinaria de protección). According to Article 65 of the Organic Law on Jurisdictional Guarantees and Constitutional Control (Ley Orgánica de Garantías Jurisdiccionales y Control Constitucional), “those who were dissatisfied with the decision of an Indigenous authority exercising judicial functions, for violating constitutionally guaranteed rights or discriminating against women for being women, may appeal to the Constitutional Court and present a challenge to that decision, within the term of twenty days after the decision was made known”.96
This exception has not been exempt from criticism. If both legal systems are on equal footing, as some argue,97 why should the Constitutional Court, which belongs to the ordinary justice system, control the decisions of the Indigenous systems? Wouldn’t this mean that in practice the ordinary system has a higher rank than Indigenous systems? De Sousa Santos writes that in order to overcome this issue, the composition of the Constitutional Court should be modified by appointing experts on Indigenous legal systems.98 Baltazar Yucailla goes a step further and argues that the Constitutional Court should have a special chamber on Indigenous collective rights, such a chamber would be composed of “Indigenous professionals who understand the traditions and customs of Indigenous nationalities and peoples in the application of Indigenous justice”.99 Whether these solutions would enhance mutual cooperation and the understanding of the different legal systems or do the opposite, separating the systems by ethnicity, which could impact professionals, conceptions and values, is a matter that requires further research.
In another murder case in the community of La Cocha (La Cocha 2), the Constitutional Court appears to have created a particular conception of the ne bis in idem rule, allowing Indigenous defendants already sanctioned by Indigenous adjudicators to be tried again by ordinary criminal judges and face the punishments established in the Criminal Code.
2. La Cocha 2 Murder Case: The Constitutional Court and Its Particular Conception of the Ne Bis In Idem Rule
On July 30 and September 11, 2014, the Constitutional Court passed two judgments in another murder case decided by the La Cocha community. The case is known as La Cocha 2 to distinguish it from the murder case of Maly (La Cocha 1) described above. The facts of La Cocha 2 are as follows: on May 9, 2010, Marcelo was found dead in the village of Zumbahua, located in the Ecuadorian province of Cotopaxi. The next day, five men suspected of his murder were caught and handed over to Indigenous authorities. In two separate sessions, the General Assembly of La Cocha-Zumbahua found the accused guilty. They all received the same penalties: a fine of US$5000, a ban from all social and cultural celebrations for two years, expulsion from the community for two years, mandatory subjection to cold baths and stinging nettles for a period of one half-hour, one lash with a leather strap by each communal leader, and the tasks of carrying a hundredweight while semi-naked and making public apologies.100 Nevertheless, the five defendants were arrested by the national police and put on trial before an ordinary criminal judge. At the same time, the three Indigenous leaders who heard the case were arrested for kidnapping. Additionally, the brother of the deceased submitted a motion for extraordinary protection before the Constitutional Court challenging the constitutionality of the Indigenous adjudicators’ decision.
The case against the Indigenous leaders was allocated to the Juzgado Tercero de Garantías Penales de Cotopaxi (Third Criminal Guarantees Court of Cotopaxi), while the case against the men accused of murder was allocated to the Tribunal de Garantías Penales de Cotopaxi (Criminal Guarantees Tribunal of Cotopaxi). The Juzgado decided to suspend the proceedings and send the case to the Constitutional Court to decide on the constitutionality of the proceedings.101 In the Juzgado’s opinion, the Indigenous leaders were facing criminal charges for performing functions expressly permitted by the Constitution. The Tribunal decided to suspend the proceedings against the men accused of murder and referred the case to the Constitutional Court, asking the following question: “is it possible to indict for a second time Indigenous individuals belonging to an Indigenous community, if they have already been sanctioned by the authorities of that community?”102
In sum, the Constitutional Court received three different applications: 1) the motion for extraordinary protection submitted by the brother of the deceased, challenging the constitutionality of the decision of the Indigenous authorities; 2) a consultation from the Juzgado deciding on the criminal responsibility of the Indigenous leaders, and 3) a consultation from the Tribunal deciding on the criminal responsibility of the alleged perpetrators of the murder.
On July 30, 2014, the Constitutional Court decided on the application submitted by the brother of the victim,103 and on September 11, 2014, it passed a single judgment on the consultations presented by both the Juzgado and the Tribunal.104 In its judgments, the Constitutional Court studied the evidence submitted regarding the legal system of the Indigenous community to which the Indigenous leaders, the victim, and the perpetrators belong. It concluded that when the adjudicators of the Indigenous community resolved the murder case, they did not decide on:
the legally protected value of life as an end in itself, but in terms of the social and cultural effects that the death caused in the community [...], while on the other hand, the prosecution and the ordinary criminal courts acted under the constitutional and legal obligation to investigate and prosecute, respectively, the individual responsibility of those allegedly involved in the death.105
In the Constitutional Court’s opinion, there was no violation of the ne bis in idem rule because Indigenous justice was protecting the collective dimension of the right to life, while ordinary justice was protecting the individual dimension of that right.106 The Court ruled that: (1) Indigenous authorities committed no violation of national law when they heard and solved the murder case, and therefore the criminal case against them before the Juzgado should be dismissed, and (2) the public prosecutor and the Tribunal committed no violation either in initiating a criminal case against those who were already punished by the Indigenous adjudicators, and therefore the criminal proceedings against the men accused of murder before the Tribunal should continue.
Finally, the Constitutional Court established a general rule applicable to every future case related to Indigenous legal systems. In the Court’s view, the ordinary justice system upholds the right to life as a value in itself, while Indigenous legal systems uphold the right to life as a means to contribute to the realization of the community as its highest value. Such a view was insufficient, according to the Constitutional Court, to guarantee the individual right to life as guaranteed in the Constitution, in the international human rights instruments Ecuador has ratified, and in ius cogens norms.107 Therefore, the Court ruled that all future cases involving the right to life shall be heard exclusively by the ordinary justice system, with Indigenous authorities no longer having any subject-matter jurisdiction over these cases.108
The Constitutional Court’s judgment was severely criticized by the Indigenous movement.109 Nina Pacari, an Indigenous leader and politician, called the judgment “nefarious and shameful” (nefasta y vergonzosa).110 The CONAIE announced that it will not respect the Court’s ruling.111 Sixto Yaguachi, an Indigenous leader from the ECUARURANI (the organization of the Indigenous communities of the Kichwa Nation of Ecuador’s highlands), stated: “Whatever they say, whatever they do, we will continue with this disobedience applying our principles because we are supported by our international rights”.112 Most of the criticism was aimed at the limitation of subject matter jurisdiction in Indigenous legal system, an issue that is beyond the scope of this article.113
3. The Implications of the La Cocha 2 Judgment
The first and most obvious consequence of the Constitutional Court’s ruling is the eradication of forum shopping in criminal cases when the right to life is involved. The disputants no longer have the choice of forums in cases related to Articles 140-149 of the Criminal Code (all forms of murder, manslaughter, feminicide, and abortion). The second consequence, closely linked to the first, is the eradication of shopping forums. The Indigenous forum and the ordinary forum will not have to compete in to attract disputants in right-to-life cases. The Constitutional Court made the “final purchase” and gave the ordinary forum exclusive jurisdiction.
One should bear in mind that this is a legal eradication of forum shopping and shopping forums, but in reality, these phenomena may still occur, despite the Constitutional Court’s prohibition. If the Indigenous authorities keep their word by not complying with the Court’s decision, Indigenous communities could decide to go “underground” in the administration of their justice, as they did during the centuries that Indigenous legal systems were tacitly permitted but not formally recognized by Ecuador’s monistic legal culture.114 The outcomes could vary from a complete agreement between the parties to not alert ordinary authorities because they all agree with the solution reached by Indigenous adjudicators, to cases in which powerful defendants could still shop for an Indigenous forum while a weak accuser could be pressured to accept an Indigenous forum and be prevented from seeking intervention in the ordinary justice system.
As to the ne bis in idem rule, the Constitutional Court’s distinction between the individual and collective dimensions of the right to life creates more problems than solutions. First, it could make the same distinction with regards to many other rights. For instance, the right to personal integrity, which includes the right not to be tortured,115 rape cases,116 or the prohibition of cruel, inhuman and degrading treatments and punishments,117 could also be divided into distinct individual and collective realms. If Indigenous adjudicators solve a right-to-personal-integrity case focusing on the collective dimension of this right, could then ordinary authorities subsequently start criminal investigations to deal with the individual dimension of that right? Like the right to life, the right to personal integrity is a fundamental right protected by the Constitution,118 the international treaties Ecuador has ratified,119 and the ius cogens rules.120 If Indigenous adjudicators solve a right-to-personal-integrity case focusing on the collective dimension of this right, could we then deduce that rape cases shall be also excluded from Indigenous jurisdiction? If one follows the reasoning of the Constitutional Court in La Cocha 2, the answer to this question would be yes. However, the Constitutional Court in a subsequent judgment stated that the only competent forum to deal with right to life cases is the ordinary forum, Indigenous forums being excluded, but in other cases not involving the right to life, ordinary judges “are obliged to stop hearing the case” and refer it to an Indigenous forum if so requested.121 The Court did not explain why in these other cases the individual versus collective approach was not applicable.
The second problem with the Court’s ruling is that it seems incompatible with the national and international understandings of the ne bis in idem rule. As mentioned above, Ecuador’s Criminal Code forbids a second prosecution based on the “same facts.”122 The Spanish version of Article 8(4) of the American Convention on Human Rights also forbids a second prosecution for “los mismos hechos” (the same facts). The English version talks about the “same cause,” but the Inter-American Court has stated that the ne bis in idem “is based on the prohibition of a new trial on the same facts that have been the subject of the judgment under authority of res judicata.”123 The relevance lies in the “same facts,” and not in whether those facts produced different offences, or whether one jurisdiction has a different aim than the other one.
4. Exceptions to the Ne Bis In Idem Rule
The ne bis in idem rule, while important, is not absolute. According to the Inter-American Court, the rule is not applicable in two circumstances: 1) when the proceedings were not conducted independently and impartially in accordance with due procedural guarantees, and 2) when there was no real intention of bringing those responsible to justice, because the judicial investigation, the proceedings and the judicial decisions “were not truly intended to elucidate the facts, but rather to obtain an acquittal of the accused”.124 Furthermore, the Inter-American Court has stated that States have the duty to avoid and fight against impunity.125 Impunity may arise in different manners: as a result of the State’s failure to organize the mechanisms necessary to investigate a crime;126 or by carrying out domestic proceedings that result in delays and undue hindrances;127 or by failing to formally define crimes, which prevents the adequate performance of criminal proceedings;128 or by adopting self-amnesty laws;129 or by failing to enforce the imposed sentence;130 or by imposing upon those found guilty insignificant punishments that are fully inconsistent with the seriousness of the crime,131 among others.
The Inter-American Court’s standards could have assisted the Constitutional Court in reaching a more solid decision. If Indigenous adjudicators were not impartial or independent, if the proceedings before them did not provide procedural guarantees, if there was no real intention to punish the crime, then there was an apparent res judicata,132 and the ne bis in idem rule would not be applicable. Similarly, had the Constitutional Court have considered that the crime was not formally defined in the Indigenous legal system; or if the decision was not enforced properly by the Indigenous adjudicators; or if the imposed punishments were not consistent with the seriousness of the crime, or did not provide results that are important in a democratic society (deterrence, prevention, retribution, rehabilitation, etc.), leading the case to linger in total or partial impunity, a re-trial could have been ordered. Sadly, the reasoning of the Constitutional Court did not touch upon any of these issues.
V. Conclusions
Having different legal systems coexisting in the same place and at the same time creates a laboratory for forum shopping and shopping forums. The multiplicity of authorities, procedures and regulations fosters the possibility that some disputants can choose a system that offers the best probabilities of success. However, not all the disputants are in an equal position of choosing, and some do not even know that they have a choice. Power imbalances and inequalities within Indigenous communities play an important role in these choices.
Forum shopping can be a blessing or a curse. Depending on who is buying, it could be an unfair and utilitarian exploitation of the system, a way of taking advantage of legal loopholes in the coordination and cooperation between different systems, or a selfish manner by which to bypass of the consequences of wrongful acts. At the same time, it could improve access to justice for those who were traditionally the minority within the minority, less powerful subgroups, or vulnerable individuals. The focus should be on the “buyer” and his or her reasons to choose one forum over the other.
As to shopping forums, Ecuador’s Constitution states that the administration of justice is a collective right of Indigenous peoples. Being a right, its right-holder (Indigenous communities) may decide to exercise it or not. When Indigenous adjudicators decide to administer justice or decide not to administer justice, they are in fact “shopping” the controversies.
Indigenous individuals have the right to be tried by a competent judge, that is to say, a natural judge, from their own system and culture. Consequently, the decision of Indigenous adjudicators to solve a case or not should be weighed against the right of individuals to access justice. Neither the collective right nor the individual right should be absolute. Good reasons should be given if one right is to be limited or restricted in favor of the other.
Ecuadorian law included the ne bis in idem rule as a way of limiting forum shopping and shopping forums. In theory, if a case has been decided by one legal system, the other system should refrain from hearing the same case again. However, according to the Constitutional Court, Indigenous justice deals with the collective dimensions of the right to life, while ordinary justice deals with its individual dimension. Because of this, the Court found no violation of the ne bis in idem rule in a case where ordinary adjudicators heard a case already resolved by Indigenous adjudicators. The reasoning of the Court was flawed and it appears to contradict the purposes of the inclusion of the ne bis in idem rule. Finally, the rule is not absolute, and there are certain cases in which it is not applicable, mainly because the first trial demonstrated serious deficiencies or there was no real intention to bring the defendant to justice. In such cases, there is apparent res judicata and it is possible to order a second trial. The Constitutional Court did not explore the non-absolute nature of the rule, which demands a case-by-case analysis. Instead, it passed a general prohibition against Indigenous adjudicators hearing future cases related to the right to life. Whether the Court limited the jurisdiction of Indigenous adjudicators beyond what is possible or desirable in a legally pluralistic society is a topic that deserves further research. For the purposes of this article, the Court’s decision fits awkwardly with the ne bis in idem rule.
