UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------------CHEVRON CORPORATION, Plaintiff, v. MARIA AGUINDA SALAZAR, et al., Defendants, -andSTEVEN DONZIGER, et al., Intervenors. ------------------------------------x : : : : : CASE NO. 11-CV-3718 (LAK) : : EXPERT REPORT OF SANDRA : ELENA : : : : : x

Table of Contents A. B. C. D. E. i. Statement of Qualifications .................................................................................................... 1 Summary of Conclusions ....................................................................................................... 2 Methodology .......................................................................................................................... 3 Factors Related to Judicial Impartiality .................................................................................. 4 Judicial Independence in Ecuador .......................................................................................... 4 Introduction ......................................................................................................................... 4

ii. Conditions Leading to Ecuadors Lack of Judicial Independence ...................................... 6 a.Institutional Instability ........................................................................................................ 6 b.Lack of Judicial Neutrality .................................................................................................. 8 c.Threats to Freedom of Expression and Freedom of Association ........................................ 9 iii. International Indices Measuring Judicial Independence ............................................... 11

a.The Judicial Independence Indicator ................................................................................. 11 b.The Efficiency of Legal Framework Indicator .................................................................. 12 c.The De Facto Index of Judicial Independence .................................................................. 13 d.The Tenure of Supreme Court Judges 1960-1995 Indicator ............................................. 14 e.The Rule of Law Index...................................................................................................... 15 iv. F. i. Conclusion..................................................................................................................... 17

Judicial Corruption in Ecuador............................................................................................. 18 The Control of Corruption Index....................................................................................... 19

ii. The Global Corruption Barometer Legal System and Judiciary .................................... 19

iii. iv. v. G. i.

The Probability of Being Able to Bribe a Judge Indicator ............................................ 20 The Opacity Index Legal System ............................................................................... 21 Conclusion......................................................................................................................... 22

Confidence in the Ecuadorian Judicial System .................................................................... 23 The National Institutions Index Confidence in the Judicial System and Courts ............ 23

ii. The Confidence in the Judiciary Indicator ........................................................................ 23 iii. iv. H. The Ibero-American Governance Barometer Confidence in the Judiciary ................ 25 Conclusion..................................................................................................................... 25

Final Conclusions ................................................................................................................. 26

Exhibit A Curriculum Vitae ....................................................................................................... 27 Exhibit B Judicial Independence Indices ................................................................................... 32 The Judicial Independence Indicator (World Economic Forum) ......................................... 32 The Efficiency of Legal Framework Indicator (World Economic Forum) .......................... 39 The De Facto Index of Judicial Independence (CESifo Group) .......................................... 44 The Tenure of Supreme Court Judges 1960-1995 Indicator (Inter-American Development Bank) .................................................................................................................................... 48 The Rule of Law Index (World Bank) ................................................................................. 49 Exhibit C Judicial Corruption Indices ........................................................................................ 58 The Control of Corruption Index (World Bank) .................................................................. 58 The Global Corruption Barometer Legal System and Judiciary (Transparency International) ........................................................................................................................ 67

The Probability of Being Able to Bribe a Judge Indicator (Latinobarmetro)..................... 71 The Opacity Index Legal System (Milken Institute) ......................................................... 72 Exhibit D Confidence in the Ecuadorian Judicial System Indices ............................................. 75 The National Institutions Index Confidence in the Judicial System and Courts (Gallup). 75 The Confidence in the Judiciary Indicator (Latinobarmetro) ............................................. 77 The Ibero-American Governance Barometer Confidence in the Judiciary (CIMA) ......... 79 Exhibit E Considered Documents .............................................................................................. 82

Expert Report of Sandra ElenaA. Statement of Qualifications 1. My name is Sandra Elena. I have an LLM degree in International Legal Studies from

American University in Washington DC, a law degree from the University of Buenos Aires, Argentina, and a Political Science degree from the University of El Salvador, Argentina. Briefly outlined below are some of my relevant qualifications, and my curriculum vitae is attached to this report as Exhibit A. Contained in my curriculum vitae, there is a list of all my publications for the last ten years. I have never testified as an expert witness before this. 2. I am the Director of the Justice Program at the Center for the Implementation of Public

Policies promoting Equity and Growth (CIPPEC) in Argentina. CIPPEC is a nonprofit organization devoted to the study of public policy in Argentina. I am currently in charge of the justice sector program, which is aimed at the promotion of the rule of law and democracy. Before joining CIPPEC, I served as Director, Coordinator, and Senior Advisor, respectively, in three nonprofit organizations: Association for Civil Rights (ADC), Forum of Studies on Judicial Administration (FORES), and International Foundation for Election Systems (IFES). ADC and FORES are Argentine institutions organized to promote the rule of law through the improvement of the justice sector, for example the Supreme Court, the Judicial Council, the Prosecutors Office and the Ministry of Justice, in Latin America. IFES is a nonprofit Washington-based organization devoted to the promotion of democracy and the rule of law worldwide. 3. For the past ten years, I have devoted most of my time to academic research and field

assignments related to the study and reform of developing countries judiciaries, particularly in Latin America. As part of my work, I have assessed numerous aspects of the judicial systems in more than 15 countries, including Ecuador. I have developed academic studies, field studies, and 1

proposals on judicial reform for the following countries: Ecuador, Bolivia, Peru, Argentina, Uruguay, Paraguay, Guyana, Panama, Nicaragua, Honduras, Dominican Republic, Haiti, Pakistan, India, Moldova, Rumania, Kosovo, and China, among others. 4. During 2009 and 2010, I visited Ecuador in connection with the preparation of two separate

proposals for reforming the Ecuadorian judicial system. The proposals were for USAID and the Ecuadorian Ministry of Justice. During these visits, I collected information about the Ecuadorian judicial system, and communicated with key judicial actors, including government officials, judges, prosecutors, public defenders, academics and civil society activists. In the course of this work, I gained specific knowledge and understanding of the functioning of the judicial system in Ecuador, both on paper and in practice. 5. 6. In preparation for this report I have considered the documents which are listed in Exhibit E. I am being compensated for my work on this report at a rate of $300 per hour. My

compensation is not dependent on the content of this report or my opinions, or on the outcome of this case.

B. Summary of Conclusions 7. This report addresses the Ecuadorian judicial systems failure to provide impartial tribunals.

Specifically, this report identifies the three main factors that affect whether or not a judicial system provides impartial tribunals, and evaluates whether the Ecuadorian system provides impartial tribunals, based on the following three factors: (1) judicial independence; (2) judicial corruption; and (3) public confidence in the judicial system. 8. I conclude that the Ecuadorian judicial system does not provide impartial tribunals. Every

single indicator and index available for assessing this issue reflects a lack of independence and existence of corruption in the Ecuadorian judicial system, often in extreme degrees. My review of 2

the Ecuadorian institutional arrangements and legal practices consistently led me to the same conclusion. Due to political manipulation, key judicial institutions suffer from instability. The recent radical changes in the Ecuadorian constitutional framework affecting the judicial system have undermined judicial independence, judicial integrity and judicial impartiality.

C. Methodology 9. In my capacity as a consultant over the last sixteen years, I have developed an expertise in

analyzing flaws in judicial systems, especially in Latin America, in order to propose specific recommendations for reforming those systems. The most important factors I consider when evaluating judicial systems are: relationships between the judiciary and political actors, judicial independence, the judiciary as a promoter of the rule of law, the transparency of judicial decisions, judicial corruption, incentives for judges and judicial officers, alternative dispute resolution mechanisms, due process of law in criminal and civil courts, human rights protection, and judicial efficiency. 10. In my opinion, the best way to analyze a judicial system is through a systemic approach.

The systemic approach avoids subjectivity as well as political or ideological biases. The main tools I use in applying this systemic approach are: international indices, recognized standards of judicial conduct, statistics, and academic studies. Another important tool I use in my work is direct contact with key judicial actors through interviews and surveys. Over the course of my career, I have interviewed and trained more than 500 judges, judicial officers and employees all over Latin America, including within Ecuador. 11. This report also relies on the Bangalore Principles of Judicial Conduct, a corpus of

principles related to judicial integrity, impartiality and independence that was developed and

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adopted by the United Nations. Since 2002, these principles have been widely discussed and adopted all around the world as a standard for understanding judicial fairness and impartiality. 12. In Latin America, the Ibero-American Judicial Summit made similar efforts.1 The Ibero-

American Model Code of Judicial Ethics, adopted in 2006, shares many of the same ideas found in the Bangalore Principles, and considers several concepts that are specific to Latin American tradition and culture. This Code is also widely accepted as a standard for judicial ethics, and has served as a source for many Judicial Ethics Codes adopted in Latin America. 13. These two Codes are adopted herein as the main sources that define the principles of

judicial fairness and impartiality.

D. Factors Related to Judicial Impartiality 14. As noted earlier, in developing my opinion that Ecuador lacks impartial tribunals, I looked

at three key factors: (1) judicial independence; (2) judicial corruption; and (3) public confidence in the judiciary.

E. Judicial Independence in Ecuador 15. In my opinion, the institutions, legal framework, and judicial and political practices in

Ecuador foster a lack of independence within the judicial system. i. 16. Introduction In my opinion, independence is a necessary precondition to impartiality. Although

independence and impartiality are separate values, [t]hey are nevertheless linked together as1

This Summit was created for cooperation, consensus building and exchange of experiences among judicial authorities of Ibero-America. The Summit seeks to strengthen the rule of law by improving the administration of justice. One of the most relevant results that the Summit achieved is the approval of the Ibero-American Model Code for Judicial Ethics [Cdigo Iberoamericano de tica Judicial], conceived as a guidance to professionally analyze judicial ethics.

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attributes of the judicial office that reinforce each other. Independence is the necessary precondition to impartiality. It is a prerequisite for attaining the objective of impartiality. A judge could be independent and yet not be impartial (on a specific case by case basis), but a judge who is not independent cannot by definition be impartial (on an institutional basis).2 17. Judicial independence is a systemic condition, meaning that independence cannot be

measured by the independence of a particular judge, but rather must be measured on a system-wide basis. Some legal frameworks and practices favor judicial independence, while others promote dependent judiciaries. The most important factors related to judicial independence are: long or life tenures for judges, objective and transparent judicial appointment processes, and fair disciplinary and removal processes.3 It is important to analyze how these elements are regulated in the written laws and rules of a country, but even more important to understand how they work in practice. In Latin America, there is a deeply rooted habit of writing good laws, but weakly implementing them; Ecuador is a clear example of this point.4 18. Below I discuss three elements that contribute to Ecuadors lack of judicial independence:

institutional instability, lack of judicial neutrality, and threats to freedom of expression and freedom of association. I will then discuss the international indices that provide a good measure of judicialTHE JUDICIAL INTEGRITY GROUP, COMMENTARY ON THE BANGALORE PRINCIPLES OF JUDICIAL CONDUCT 53 (March 2007). 3 These institutional elements as a whole are known as Judicial Career in Latin America. The Judicial Career is the system that regulates the admission, education, training, promotion, stability, evaluation and disciplinary process in the judiciary. 4 In 2003, Ecuador ranked 9th out of 71 countries in the De Iure Independence Index, and 48th out of 62 countries in the De Facto Independence Index. These indices were developed by Lars P. Feld and Stefan Voigt at the Institute for Economic Research (CESifo Group). The De Iure Index evaluates a country based on its written laws. It analyzes comprehensive aspects of judicial independence: the stability of institutional arrangements, the appointment procedure of the judges, judicial tenure, judicial salaries, the accessibility of the court and its ability to initiate proceedings, the system for allocation of cases to the various members of the court, the competencies assigned to the constitutional court and the publication of judicial decisions. The De Facto Independence Index, on the other hand, evaluates the country based on how the law is actually implemented. The difference in the scores of these two indices proves the point. While the government of Ecuador adjusted its legislation to comply with judicial independence standards, the concrete practice demonstrates that the Ecuadorian judiciary suffers from severe lack of judicial independence.2

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independence, or lack thereof. These indices are: the Judicial Independence Indicator, the Efficiency of Legal Framework Indicator, the De Facto Index of Judicial Independence, the Length of Tenure Indicator and the Rule of Law Index.

ii. 19.

Conditions Leading to Ecuadors Lack of Judicial Independence In this section, I address three conditions that affect judicial independence in Ecuador:

institutional instability, lack of judicial neutrality and threats to freedom of expression and freedom of association.

a. Institutional Instability 20. Article 168.1 of the Ecuadorian Constitution establishes that the judiciary should be

internally and externally independent. Nevertheless, neither the formal institutional arrangements nor the practices within Ecuador create an environment that enables judicial independence to exist. 21. Judicial independence is promoted when there is a stable judicial career, when the

appointment, disciplinary and removal processes are fair and transparent and when tenures are effectively long. However, none of these are present in Ecuador, largely due to political instability. Furthermore, this political instability has reached new heights under the Correa administration. 22. As I have noted, judicial independence is supported by the presence of strong, stable

judicial institutions. In Ecuador, the two key judicial institutions are the Judicial Council and the National or Supreme Court. Therefore, in Ecuador, a stable and institutionalized Judicial Council and Supreme Court would help ensure judicial independence. On the contrary, a weak and unstable Supreme Court and Judicial Council favor and encourage political interference and manipulation of the judiciary. The recent political and judicial history of Ecuador demonstrates how volatile and unstable both of these institutions have been over the past years.

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23.

Several landmark changes to Ecuadors judicial system have had a great impact on the

stability of the Ecuadorian judiciary. These include the 1998 constitutional reform, a 2004 Supreme Court purge, the 2008 constitutional reform, and a referendum that took place in May 2011. All these reforms changed the composition, number of members, length of tenure, and selection process, among other important characteristics of the Supreme Court and the Judicial Council. 24. The Supreme Court has suffered from significant political interference. For example, at the

direction of President Gutierrez, the Ecuadorian Congress illegally removed 27 judges of the Supreme Court in 2004, and appointed their replacements in 2005. In 2005, President Gutirrez motives for these actions became clear when the new Ecuadorian Supreme Court acquitted former President Abdala Bucaram, who had been accused of corruption and exiled in 1997. These actions prompted spontaneous citizen protests in Quito and other parts of the country, with large groups of the population calling for judicial independence. 25. In 2008, after Correa was elected president of Ecuador, a constitutional reform was passed.

According to the new Constitution, the Judicial Council became responsible for directing judges selection process, their evaluation, promotion and disciplinary process. In addition, article 182 of the new Constitution established nine-year tenure at the renamed National Court (formerly the Supreme Court). Moreover, the number of justices was reduced from 31 to 21 members, and a system was put in place whereby one third of the members would change every three years. In order to transition to this new system, a lottery process was created to determine which 10 of the 31 justices would resign immediately. The lottery would also determine which of the remaining 21 members would continue to serve for 3 years (7 members), 6 years (7 members), and 9 years (7 members). In the end, all 31 justices refused to submit to the lottery and, instead, simply resigned. Thus, for the second time in less than five years, the entire National or Supreme Court was effectively changed. 7

26.

Another example of manipulation came very recently, when the government implemented a

referendum in May 2011. One of the proposals in this referendum was to temporarily replace the Judicial Council, the body that is responsible for the selection, the evaluation, the promotion and the disciplinary system of the judiciary, with a Technical Commission. The Commissions purported task is to evaluate and restructure the judiciary. The three members of the Technical Commission are to be appointed by the President, the Congress and the Transparency and Social Control Organ. In my opinion, the implementation of this system will mark the death of any hope for judicial independence in Ecuador. 27. The accumulation of all of these events has severely destabilized the judiciary in Ecuador,

and has led to an increase in the lack of judicial independence.

b. Lack of Judicial Neutrality 28. Political influence over judges usually results in biased judicial conduct, affecting judges

neutrality. As the Bangalore Principles state, a judge shall perform his or her judicial duties without favour, bias or prejudice.5 In other words, judges must be neutral. Neutrality means that the judiciary should be independent of government, of the legislature and of society in general. Neutrality requires judges to deal with everyone in the same way, poor or rich, foreigner or national. This is the essence of equal justice under the law. 29. In Ecuador, the neutrality of judges is threatened in many ways. Since 2003, the judiciary

has been subject to great political interference. The illegal removals and mass resignation of justices discussed above are dramatic examples of this political interference.

United Nations Office of Drugs and Crime, The Bangalore Principles of Judicial Conduct, art. 2.1 (2002), http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf.

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30.

Another recent example arose when President Correa accused Colonel Carrion of attempted

assassination. Following that, Minister Serrano, who works under Correa, threatened several judges with criminal charges if they failed to condemn Colonel Carrion in court on these charges. 6 31. The periodic evaluation of judges called for by Ecuadors Constitution can also result in

improper political interference in the judiciary. According to the current Ecuadorian Constitution, lower-court judges are appointed for lifetime tenure, but they can be removed if they do not pass periodic performance evaluations.7 The evaluations are organized by the Judicial Council, a highly politicized body. In a country like Ecuador, which has a weak institutional environment, this is a serious threat to judicial neutrality. 32. In my opinion, Ecuadorian judges are not free from inappropriate influence, particularly

from the executive branch of government, and particularly over the past eight years.

c. Threats to Freedom of Expression and Freedom of Association 33. Judicial independence in Ecuador is also undermined by political attacks upon freedom of

expression and freedom of association. A free press is essential to the independence of the judiciary, and judicial independence is essential to a free press. Neither can exist without the other. Moreover, a vigorous civil society is necessary to strengthen independence, integrity and impartiality of the judicial system.

Judge in Carrin case under threat [Juez del caso Carrin bajo amenaza], EXPRESO, May 13, 2011, http://www.diario-expreso.com/ediciones/2011/05/14/nacional/actualidad/juez-del-caso-carrion-bajoamenaza/. 7 Constitution of the Republic of Ecuador 2008, art. 187, available at http://www funcionjudicial.gov.ec/cj/index.php?option=com_wrapper&view=wrapper&Itemid=243; Organic Code of the Judicial Function [Cdigo Orgnico de la Funcin Judicial], Official Gazette Supp. #299 (Mar. 9, 2009) (Ecuador), arts. 87, 122, http://issuu.com/cce1/docs/codigo_organico?mode=embed&layout=http%3A%2F%2Fskin.issuu.com%2Fv% 2Flight%2Flayout.xml.

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34.

Ecuadorian laws do not meet regional standards to protect the freedom of expression.

Article 230 of Ecuadors Penal Code imposes a fine and/or prison sentence for individuals who offend the government or President of Ecuador. As stated by the Chairman of the Foreign Affairs Committee, Rafael Correa continues to use all means at his disposal to punish those who dare to speak the truth about his undemocratic rule. Correa has reportedly used Article 230 over 350 times in the last four years. And now, with the new powers given to him in the recent referendum, Correa will have even more control over the media and those who stand in opposition to him.8 35. As an illustration of how freedom of the press and judicial independence are intertwined,

there is the case of El Universo newspaper. Correa has been harassing the independent newspaper El Universo for the last four years. Its owners and managers have been accused in court of several crimes in an effort to silence them. Some magistrates who opposed prosecuting the journalists were removed or suspended. The Ecuadorian government has also requested millions in compensation from the newspaper because it has published information that they did not like. Recently, the Correa administration again used the court system as a tool to intimidate this same newspaper, when it forced the owners of El Universo to relitigate a nineteen-year-old case that was over and decided long ago. Using judges to harass the media in this way is only possible in a system that lacks judicial independence.9 36. In addition, over the last few years, there has been a systematic effort by the government to

limit and obstruct the action of civil society organizations. In 2008, the government passed Executive Act No. 982, which amended the laws regulating civil society organizations. This act imposed formal requirements on civil society organizations that are difficult to meet. Failure to

Press Release, U.S. House of Representatives Committee on Foreign Affairs, Ros-Lehtinen Denounces Correas Ongoing Attack on Freedom of Expression in Ecuador, May 31, 2011, http://foreignaffairs.house.gov/press_display.asp?id=1850. 9 See Ecaudor: more abuse of the press [Ecuador: ms atropellos a la prensa], LA NACIN, June 8, 2011, http://www.lanacion.com.ar/1379756-ecuador-mas-atropellos-a-la-prensa.

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comply with these requirements may result in the inability to operate. A judicial system that operates without the monitoring and control of civil society organizations is more likely to be manipulated and succumb to political influences.

iii. 37.

International Indices Measuring Judicial Independence The lack of judicial independence in Ecuador can be seen in all of the most internationally

recognized indices that address this issue.10

a. The Judicial Independence Indicator 38. The Global Competitiveness Index of the Global Competitiveness Reports is periodically

published by the World Economic Forum, and is based on the results of a public opinion survey. The Judicial Independence Indicator is one of the variables taken into account in that Index. 39. According to this Indicator, public perception of judicial independence in Ecuador is very

poor. In 2008-2009 and 2009-2010, Ecuador was ranked as one of the worst countries for Judicial Independence (128 out of 134 countries). Ecuador had a score of 2, with 1 being the lowest and 7 the highest possible score. In the 2010-2011 Report, Ecuador ranked 134 out of 138 countries. 40. The following chart shows the position of Ecuador among a representative selection of

Latin American and Caribbean countries.

More information about all the indices used in this Report is available in Exhibits B, C and D. In addition, I reserve the right to use the charts contained in this Report and in the exhibits, or additional materials as demonstrative exhibits at trial.

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Judicial Independence Indicator 2010 - 2011

b. The Efficiency of Legal Framework Indicator 41. Efficiency of Legal Framework is another variable taken into account by the Global

Competitiveness Index of the Global Competitiveness Report. To evaluate survey respondents opinions regarding the efficiency of legal framework, participants were asked to respond to the following question: The legal framework in your country for private businesses to settle disputes and challenge the legality of government actions and/or regulations is (1 = inefficient and subject to manipulation, 7 = efficient and follows a clear, neutral process). The manner in which this particular survey question was drafted renders it highly relevant for purposes of this report. As you can see, in this survey, inefficiency is directly linked to manipulation, while efficiency is linked to neutrality.

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42.

Ecuador again ranked very poorly with respect to the Efficiency of Legal Framework

variable. In the 2008-2009 Global Competitiveness Report, Ecuador ranked 128 out of 134 countries, with a score of 2.1.11

c. The De Facto Index of Judicial Independence 43. The De Facto Index of Judicial Independence produced by Lars P. Feld and Stefan Voigt at

the Institute for Economic Research (CESifo Group) was released in 2003. This Index focuses on the actual degree of judicial independence in a particular country. To assess De Facto judicial independence, several variables were used. Those variables relate to the effective average term length of the members of the highest court, the number of judges in the same court, the actual judges salaries, changes in the legal framework of the highest court, and finally, whether decisions of the highest court, in order to be implemented, depend on some action of one (or both) of the other branches of government and this cooperation is not guaranteed. Each of the variables is assigned a value between 0 and 1. A greater value indicates a higher degree of judicial independence. 44. Ecuador ranked number 48 out of 62 countries, with a score of 0.4, according to the De

Facto Judicial Independence Index, making it one of the worst countries in the Americas at the time of the assessment.

In the 2009-2010 and 2010-2011 Reports, this question was broken up into two separate questions: (1) How efficient is the legal framework in your country for private businesses in settling disputes?; and (2) How efficient is the legal framework in your country for private businesses in challenging the legality of government actions and/or regulations? (1 = extremely inefficient; 7 = highly efficient). As the concepts of neutrality and manipulation that were part of the answers for the 2008-2009 Report were dropped from the possible answers in the 2009-2010 and 2010-2011 periods, these are not included in my report. 13

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d. The Tenure of Supreme Court Judges 1960-1995 Indicator 45. The Inter-American Development Bank and the David Rockefeller Center for Latin

American Studies of Harvard University produced the Economic and Social Progress in Latin America - 2006 Report that includes a comparative chart of countries in relation with actual judges tenure. 46. Judicial instability can be measured with the Tenure of Supreme Court Judges indicator.

The reason to establish long (or life) terms for judges is to provide job security, so that judges concerns about retaining their job or being promoted do not influence their decisions. Thus, moving away from short terms for judges is likely to favor judicial independence. Tenure of Supreme Court Judges 1960-1995 (average number of years)

47.

As the chart above shows, the average tenure of Supreme Court judges in Ecuador has been

among the shortest in Latin America. Although the chart demonstrates that Ecuador has historically been among the worst countries in terms of judicial tenure, I am confident that the average length of judicial tenure remains extremely low, due mainly to the extreme turmoil faced 14

by the Supreme Court in recent years as a result of the judicial purge in 2004 and resignations in 2008.

e. The Rule of Law Index 48. The Rule of Law Index produced by the World Bank as part of the World Bank

Governance Indicators Project is another well-respected source to demonstrate Ecuadors lack of Rule of Law, and therefore Ecuadors lack of judicial independence. 49. The World Bank Governance Indicators Project aggregates governance indicators for 213

countries over the period of 1996-2009, for six dimensions of governance: Voice and Accountability, Political Stability and Absence of Violence, Government Effectiveness, Regulatory Quality, Rule of Law and Control of Corruption. 50. According to its authors, the Rule of law [index] captures perceptions of the extent to

which agents have confidence in and abide by the rules of society, and in particular the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence.12 This Index includes a number of variables related to judicial independence, impartiality, judicial effectiveness, judicial property rights protection and judicial accountability among several others. The aggregate indicators combine the views of a large number of enterprise, citizen and expert survey respondents.13 The scores run from approximately negative 2.5 to 2.5, with higher values corresponding to better governance and rule of law. 51. In 2009, Ecuador had a score of negative 1.28, ranking among the lowest of all countries in

the world (Ecuador ranks 197 out of 213). This Index also reveals an important pattern: the rule ofWorldwide Governance Indicators: Rule of Law, The World Bank, 2010, http://info.worldbank.org/governance/wgi/pdf/rl.pdf. 13 Worldwide Governance Indicators (WGI) Project, The World Bank, http://info.worldbank.org/governance/wgi/index.asp.12

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iv. 53.

Conclusion In my opinion, the institutions, legal framework, and judicial and political practices in

Ecuador foster a lack of independence within the judicial system; a lack of independence that has, 17

for the reasons stated above, worsened over the last eight years. My conclusion is supported by the five indices discussed above, and my analysis of the institutional environment and judicial practices. Independence is a precondition to impartiality. Ecuador lacks judicial independence; for this reason alone, Ecuador lacks impartial tribunals.

F. Judicial Corruption in Ecuador 54. Corruption within the legal and judicial system of Ecuador is overwhelming according

to internationally recognized indices. 55. A fair and impartial judicial system must have, as one of its core values, integrity. Judges

should be free from fraud and deceit. When this is not the case, it can be said that judges lack integrity, and the system itself is prone to corruption. 56. For purposes of this report, I use the following definition for corruption: corruption is the

intentional noncompliance with arms length relationship aimed at deriving some advantage from this behavior for oneself or for related individuals.14 This definition is broad and easily applied to judicial systems.15 Decisions made under the influence of corruption always violate the principle of judicial impartiality. 57. In this section, in order to assess the presence of judicial corruption in Ecuador I reviewed

the most relevant indices that are related to the topic. Below I analyze four indices, two of which are produced by the World Bank and Transparency International, leading organizations combating corruption. The other two indices come from Latinobarmetro and the Milken Institute, also wellknown organizations in their fields. The selected indices are: the Control of Corruption Index,VITO TANZI, CORRUPTION AROUND THE WORLD: CAUSES, CONSEQUENCES, SCOPE, AND CURES 564 n.11, International Monetary Fund Staff Papers 45.4 (December 1998) https://www.imf.org/external/Pubs/FT/staffp/1998/12-98/pdf/tanzi.pdf. 15 EMILIO CRDENAS & HCTOR MARIO CHAYER, JUDICIAL CORRUPTION: MECHANISMS OF PREVENTION AND ERADICATION [CORRUPCIN JUDICIAL: MECANISMOS PARA PREVENIRLA Y ERRADICARLA] 50-51 (2005).14

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Global Corruption Barometer, Probability of Being Able to Bribe a Judge Indicator and the Opacity Index.

i. 58.

The Control of Corruption Index The Control of Corruption Index, which is produced by the World Bank as part of the

World Bank Governance Indicators Project, captures perceptions of the extent to which public power is exercised for private gain.16 According to this Index, corruption stems from a lack of respect for the country and its institutions by both government officials and the private sector, thus representing a failure in governance. 59. As said in the previous section, the World Bank Governance Indicators Project aggregates

governance indicators for 213 countries over the period of 1996-2009, for six dimensions of governance: Voice and Accountability, Political Stability and Absence of Violence, Government Effectiveness, Regulatory Quality, Rule of Law and Control of Corruption. The Control of Corruption Index is comprised of indicators that measure transparency of governance, public perception of corruption, and perceived patterns of nepotism and cronyism. 60. In 2009, Ecuador ranked 172 out of 211 countries, with a score of negative 0.92. This low

ranking demonstrates that Ecuador suffers from high levels of public perception of corruption, thus representing a failure of governance.

ii. 61.

The Global Corruption Barometer Legal System and Judiciary Transparency Internationals Global Corruption Barometer (the Barometer) presents the

results of a public opinion survey in low, middle, and high-income countries. The Barometer examines the extent to which people perceive that corruption affects key public sectors andWorldwide Governance Indicators: Control of Corruption, The World Bank, 2010. http://info.worldbank.org/governance/wgi/pdf/cc.pdf.16

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institutions in their country (for example, the government, the police, the parliament, the legal and the judicial system). 62. According to the results of the portion of the survey dealing with the perception of

corruption in Legal System and the Judiciary, Ecuador was identified as one of the most corrupt countries in 2004, 2005 and 2007. Ecuador ranked 51 out of 60 countries in 2007, with a score of 4.1, with 5 being the highest perception of corruption possible.

iii. 63.

The Probability of Being Able to Bribe a Judge Indicator Corporacin Latinobarmetro publishes an annual public opinion survey, which researches

the development of democracy, economy and society, using indicators of opinion, attitudes, behavior and values. An identical questionnaire is given to representative samples of the population in 18 Latin American countries including Ecuador. 64. Although the survey is done on an annual basis, some of the questions vary year to year. In

both 2004 and 2008, participants were asked about the probability of being able to bribe a judge to get a favorable sentence. In Ecuador, when asked about the probability of being able to bribe a judge, only 25.9 percent in 2004, and 29.9 percent in 2008 answered, There is no possibility, dont even try or There is only a very small chance. 65. Both the Principles of Bangalore and the Ibero-American Model Code state that judges and

members of the courts are prohibited from receiving gifts or benefits of any kind that, from the viewpoint of a reasonable observer, are not justified.17 In accordance with these principles, the Ecuadorian Organic Code of the Judicial Function includes a prohibition for judges and other judicial officers from receiving or requesting fees, dues, contributions or other goods or securitiesComisin Ibero-Americana de tica Judicial, Ibero-American Model Code of Judicial Ethics [Cdigo Iberamericano de tica Judicial], art. 14; see also United Nations Office of Drugs and Crime, The Bangalore Principles of Judicial Conduct, art. 4.16 (2002), http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf.17

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belonging to another for the performance of their functions, other than those that they are entitled to receive by law.18 66. Despite Ecuadors clear rules prohibiting bribery, these rules are often broken, and there are

often scandals involving judges being bribed. For example, Judge Cornejo was arrested in July 2010, after being found guilty of receiving a bribe to release a detained vessel in the Galapagos.19 In May 2011, President Correa spoke about ineffective, inefficient or openly corrupt judges have freed close to 11 thousand persons accused of crimes, many of them criminals accused of very serious crimes.20 And recently, in May 2011, the Judicial Council replaced Judges Cevallos and Santana, who were both accused of bribery.21

iv. 67.

The Opacity Index Legal System The Opacity Index produced by the Milken Institute includes five components that relate to

negative social capital. These are: (i) corruption, (ii) legal system inadequacies, (iii) economic enforcement policies, (iv) accounting standards and corporate governance, and (v) regulation.

Organic Code of the Judicial Branch [Cdigo Orgnico de la Funcin Judicial], Official Gazette Supp. #299 (Mar. 9, 2009) (Ecuador), art. 128, http://issuu.com/cce1/docs/codigo_organico?mode=embed&layout=http%3A%2F%2Fskin.issuu.com%2Fv% 2Flight%2Flayout.xml. 19 Sandra Morn Castillo, Galapagos judge detained, accused of extortion [Detienen a juez de Galpagos acusado de concusin], CRE SATELITAL ECUADOR, July 6, 2010, http://www.cre.com.ec/Desktop.aspx?Id=143&e=141706. 20 The Referendum is the starting point for the transformation of the Justice System [La Consulta Popular es el punto de partida para transformer el sistema de Justicia], EL CIUDADANO, May 1, 2011, http://www.elciudadano.gob.ec/index.php?option=com_content&view=article&id=23998:la-consultapopular-es-el-punto-de-partida-para-transformar-el-sistema-de-justicia&catid=40:actualidad&Itemid=63. 21 Judicial Council named replacements for the judges accused of bribery [Consejo de la Judicatura design a remplazos de jueces acusados por cohecho], ECUADOR EN VIVO, May 16, 2011, http://www.ecuadorenvivo.com/2011051671987/sociedad/consejo_de_la_judicatura%20_designo_a_%20rem plazos_de_jueces_acusados_por_cohecho_ html.

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68.

Opacity is defined as the lack of clear, accurate, formal, clear-cut and widely-accepted

practices in the broad arena where business, finance, and government meet.22 It is a broad measure of the effectiveness of a countrys economic and financial institutions, as well as its overall risk. Unlike other analyses that examine country risks by summarizing the expert opinion of academics, analysts, former governmental officials, and the media, the Opacity Index is based entirely on empirical observations.23 69. In order to assess the judiciary, the most relevant of these five components is the second:

legal system inadequacies. High levels of opacity within the legal system create an environment that fosters corruption, particularly in the judiciary. 70. In the Legal System Component of the Opacity Index, Ecuador always ranks at the bottom

of the list. According to the most recent available update, put together in 2009, Ecuador ranks 45 out of 48 countries, with a score of 57.

v. 71.

Conclusion Corruption within the legal and judicial system of Ecuador is overwhelming. My

conclusion is supported by the most relevant international indices related to judicial corruption, and my analysis of relevant judicial practices. Decisions made under the influence of corruption always violate the principle of judicial impartiality. Ecuadors judicial system is contaminated by corruption, and for this reason, Ecuador lacks impartial tribunals.

JOEL KURTZMAN & GLENN YAGO, GLOBAL EDGE: USING THE OPACITY INDEX TO MANAGE THE RISKS OF CROSS-BORDER BUSINESS (2007). 23 JOEL KURTZMAN & GLENN YAGO, OPACITY INDEX 2009: MEASURING GLOBAL RISKS 1 (Apr. 2009), http://www kurtzmangroup.com/pdf/InstituteOpacityIndex_Apr8.pdf.

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G. Confidence in the Ecuadorian Judicial System 72. Public trust in the judicial system is very low in Ecuador according to public trust

perception indices, which is strong evidence of lack of impartiality. 73. A judicial system that is not independent and that suffers from widespread corruption will

always result in a lack of public confidence. Therefore, a lack of public confidence in the judicial system is additional evidence that the Ecuadorian system is not impartial.

i. 74.

The National Institutions Index Confidence in the Judicial System and Courts Gallup publishes an annual poll, which researches residents confidence in different

institutions, the military, the judicial system, and the national government. It provides an insight into the aspects of life for which people hold national institutions responsible.24 75. In 2010, 74% of Ecuadorian respondents lack any confidence in the judiciary. Ecuador

ranks second to last among all the Latin American and Caribbean countries surveyed.

ii. 76.

The Confidence in the Judiciary Indicator Corporacin Latinobarmetro publishes an annual public opinion survey, which researches

the development of democracy, economy and society, using indicators of opinion, attitudes, behavior and values. An identical questionnaire is given to representative samples of the population in 18 Latin American countries including Ecuador. 77. The following chart shows the percentage of people that do not have confidence at all in the

judiciary in Ecuador in the last year. The chart also shows how Ecuador ranks among Latin American countries.

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National Institutions Index, Gallup, available with free subscription at https://worldview.gallup.com/signin/login.aspx?ReturnUrl=%2fdefault.aspx.

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iii. 79.

The Ibero-American Governance Barometer Confidence in the Judiciary For the past 18 years, CIMA (the Ibero-American Consortium of Market Research and

Consulting Companies) has published its Ibero-American Governance Barometer, or Iberobarometer, with the objective of fomenting a more active and dynamic dialogue among members of the Ibero-American community on issues related to governability, social perceptions, leadership, institutional legitimacy and the performance of the main international players in each country. 26 For the 2010 study, CIMA representatives surveyed 11,707 people in 19 Latin American nations, as well as Spain and Portugal. 80. According to this Index, in 2010 only 21% of the population in Ecuador has confidence in

the Judiciary. According to the same Index, Ecuador ranks 16 out of 21 countries. When asked about confidence in the Constitutional Court and the Supreme Court, Ecuador ranks even lower, 18 out of 20 countries in 2010; only 22% of the population in Ecuador has confidence in the Constitutional Court and the Supreme Court.

iv. 81.

Conclusion The lack of public confidence in the Ecuadorian judicial system is clear and widespread.

According to Gallup, Latinobarmetro and Iberobarmetro, Ecuador ranks among the lowest countries in Latin America. This is additional evidence that the Ecuadorian judicial system is not impartial.

CIMA (IBER-AMERICAN CONSORTIUM OF MARKET RESEARCH AND CONSULTING COMPANIES), IBERO-AMERICAN GOVERNANCE BAROMETER (IBEROBAROMETER): EXECUTIVE ABSTRACT OF 2010 RESULTS, http://casgroup.fiu.edu/news/docs/1081/1277232145_cima_summary.pdf.

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H. Final Conclusions 82. In my opinion, after a systemic analysis of the Ecuadorian judicial system, Ecuador lacks

impartial tribunals. Every relevant indicator and index demonstrates the lack of independence and the existence of corruption in the Ecuadorian judicial system, often in extreme degrees. Indeed, in all twelve indices and indicators relied on in my report, Ecuadors scores were consistently at the bottom of the rankings. My analysis of the legal framework, the judicial practices, and the widespread lack of public confidence in the Ecuadorian judicial system, has led me to the same conclusion. Ecuador lacks judicial independence and Ecuadors judicial system is contaminated by corruption. For both these reasons, Ecuador lacks impartial tribunals. I sign this affidavit in the city of Buenos Aires on the 30th day of the month of June of 2011.

Sandra Elena

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Exhibit A Curriculum Vitae SANDRA ELENA san_elena@hotmail.com _____________________________________________________________________ KEY QUALIFICATIONS Ms. Sandra Elena is a civil society and rule of law expert with extensive experience in Latin America and other regions of the world. Since 1990, she has been involved in institutional analysis, civil society coalition building, advocacy, and political and legislative reforms in the following areas: the rule of law, human rights, anti-corruption, and decentralization. Her areas of expertise include qualitative and quantitative research, project management, contract negotiation, and program design, implementation, monitoring and evaluation. Ms. Elena has participated in longterm USAID/WB/IDB-funded projects in Argentina, Mexico, Bolivia, Peru, Haiti, Honduras, Nicaragua, Guyana, Ecuador, Pakistan, India, and Albania, among others. She is currently the Director of the Justice Program at CIPPEC, the biggest civil society organization and think tank in Argentina. As a Rule of Law Senior Advisor at IFES, she was in charge of providing legal assistance and helped implement projects on a diverse set of rule of law issues, including: legal aid, legal rights for women, judicial management and case management, transparency, independence and accountability of the judiciary, public sector decentralization, development of data instruments and administration of surveys, and monitoring and evaluation in different regions and environments. She is accustomed to working in complex societies and dealing with social and political conflicts. She has experience working in both civil and common law countries. Also, at IFES she became familiar with USAID rules and procedures. After leaving IFES, she was a consultant for several USAIDfunded programs in Latin America. Finally, Ms. Elena has substantive experience in the monitoring and evaluation of rule of law projects. In 2007, she drafted a report on the state of the evaluation of rule of law reform projects worldwide. This report, commissioned by the International Institute for Democracy and Electoral Assistance (IDEA), has served as a valuable source of information for evaluation practitioners. She was a team leader of the evaluation of PROJUM (justice sector reform program of Argentina funded by WB). She is currently a member of the monitoring and evaluation team of the Modernization of Justice Program in Guyana. EDUCATION American University Washington College of Law, Washington, D.C. LL.M. in International Legal Studies, 2003 University of Salamanca, Salamanca, Spain Graduate Course on Political Science, 1999 University of Buenos Aires, Buenos Aires, Argentina Abogada (J.D. equivalent), 1998 27

University of El Salvador, Buenos Aires, Argentina Licenciada en Ciencia Poltica (Degree in Political Science equivalent), 1992 PROFESSIONAL EXPERIENCE Center for the Implementation of Public Policy for Growth and Equity CIPPEC, Buenos Aires, Argentina Director of the Justice and Transparency Program, March 2011 to present. Responsible for Justice Programs at the organization. Attorney General Office of Buenos Aires City, Buenos Aires, Argentina. Advisor to the Attorney General, February 2010 to March 2011 Responsible for the design and implementation of management reform, and relationship with the judiciary. Responsible for designing the decentralization policy of Buenos Aires City. Government of Guyana, Ministry of Legal Affairs, Georgetown, Guyana. M&E Consultant - Modernization of Justice Program, May 2010 to May 2011. Responsible for evaluating the program and the Justice Country Strategy. Responsible for the start up of the M&E Country Unit. Association for Civil Rights, ADC, Buenos Aires, Argentina. Director of Project Development, May 2009 to March 2011 Responsible for developing program frameworks, drafting and submitting proposals to funders, and overseeing successful implementation of international programs of ADC. East West Management Institute, New York, USA. Consultant, July 2009 to November 2009 Developer of a winning proposal for a USAID funded Justice Reform Program in Ecuador. Consultant, February to May 2009 Developer of a proposal for a USAID funded Justice Reform Program in Paraguay. Public Prosecutors Office of Buenos Aires City, Buenos Aires, Argentina. Advisor, April 2008 to December 2008 Responsible for developing and implementing a Strategic Plan for the office. FORES, Buenos Aires Argentina. Coordinator of International Programs, January 2005 to April 2009 Responsible for developing, coordinating and evaluating international programs at FORES, a NGO devoted to improving the rule of law in Latin America. Main duties consist of developing projects, submitting them to donors, defining work plans, coordinating work teams, coordinating project activities, evaluating projects, and drafting project reports. In charge of developing contacts with judges, judicial authorities, law schools, and judicial NGOs of several countries in Latin America. Checchi, Washington DC, USA Consultant, Justice Administration Program USAID, Bolivia, August 2006 to March 2007 Developed methodology and conducted research on case files for civil and commercial courts of Bolivia. Responsible for survey development, data collection, data analysis and final report. Consultant, Rule of Law Program, USAID Nicaragua, August 2006 to January 2007 28

Conducted a diagnosis of NGOs working on justice issues, helped build a pro-reform coalition and trained coalition members. International IDEA, Stockholm, Sweden. Consultant, January 2006 to April 2006 Research on Evaluation of Rule of Law Programs, presented final results at an international conference. Judicial Council of Buenos Aires City, Buenos Aires, Argentina. Advisor, March 2006 to December 2006 Responsible of the design and implementation of judicial policy for Buenos Aires City, including data collection policy, and the design of collecting instruments and strategy. FORES/WB, Buenos Aires, Argentina. Justice Sector Reform Advisor, December 2004 to September 2005 Design and implementation of the World Bank-funded program for the evaluation of the PROJUM (five year World Bank Justice Sector Reform Program). Responsible for coordinating the evaluation team, administration of evaluation survey, and drafting of the final report. IDB-FOMIN Consultant, June 2005 to December 2005 Design and implementation of a study on alternative dispute resolution (ADR) in nine Latin American countries. The study included: research, design and administration of a survey, analysis of data, and production of a report. IFES, Washington, D.C. Rule of Law Advisor, April 2002 to April 2005 Served as an expert on the rule of law, human rights and anti-corruption. Worked on the design, implementation, management, and supervision of IFES-USAID/WB Rule of Law-human rights projects in the following countries: Peru, Argentina, and Mexico (Access to Court Judgments), Pakistan (Legislative and Judicial Transparency and Political Representation), India (Legal Aid/Gender), Indonesia (Constitutional Courts), Bosnia (Conflict of Interests/Ethics), Albania (anticorruption/human rights), Haiti (human rights/civil society/judicial reform). Helped propose and draft legislation for developing countries. Served as IFES representative to the Civil Society Organizations (CSOs) Network of the Americas organized by CEJA. Helped organize the 11th International Judicial Conference in Washington, D.C. (which gathered more than one hundred Supreme Court judges from 70 countries). Conducted research on rule of law, human rights, transparency and independence of the judiciary and legislative branches, and anti-corruption. Responsible for data collection, survey administration and evaluation components of the abovementioned programs. National Senate of Argentina, Buenos Aires, Argentina. Legal and Judicial Advisor to a Senator, June 1994 to May 2001. UNDP, Buenos Aires, Argentina. Consultant, 1995 and 1996 Expert on Human Development Report -Argentina 1995 and 1996.

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National School of Government, Buenos Aires, Argentina. School Coordinator, April 1995 to December 2000 National Congress of Argentina, Buenos Aires, Argentina. Advisor to a Congressman, January 1990 to December 1993 LANGUAGE Spanish, Fluent English, Fluent PUBLICATIONS Sandra Elena, Una agenda de Justicia para debatir en la campaa, Rio Negro, May 4, 2011, http://www.rionegro.com.ar/diario/rn/nota.aspx?idart=615666&idcat=9539&tipo=2. Sandra Elena & Martn Bhmer, Tribunales sin barreras, in Agenda Pblica Presidencial 4-5 (CIPPEC April 2011). Sandra Elena, Publicidad oficial, bajo control, Clarn, Mar. 11, 2011, http://www.clarin.com/opinion/Publicidad-oficial-control_0_442155822.html. Sandra Elena et al., Creciendo en Democracia: Derechos, Deberes y Responsabilidades para la Vida en Democracia y el Estado de Derecho (FORES-The World Justice Project July 2009). Hctor Chayer & Sandra Elena, Innovacin en la Justicia Civil in Justicia Civil: Perspectivas para una Reforma en Amrica Latina (Centro de Estudios de Justicia de las Amricas August 2008). Hctor Chayer & Sandra Elena, Defining the Impact of ROL Programs, in Democracy at Large 3-1 (IFES 2006). Sandra Elena & Hctor Chayer, Progress and myths in the evaluation of the rule of law: a toolkit for strengthening democracy, in Evaluating Democracy Support, Methods and Experiences (International Institute for Democracy and Electoral Assistance and Swedish International Development Cooperation Agency 2007). Violane Autheman & Sandra Elena, Global Best Practices: Judicial Councils, Lessons Learned from Europe and Latin America (Keith Henderson ed., IFES-USAID Apr. 2004). Sandra Elena et al., Global Best Practices: Income and Assets Disclosure for Judges, Lessons Learned from Europe and Latin America (Keith Henderson ed., IFES-USAID Apr. 2004). Keith Henderson, Angana Shah, Sandra Elena, & Violane Autheman, Regional Best Practices: Enforcement of Court Judgments, Lessons Learned from Latin America (Keith Henderson ed., IFES-USAID Apr. 2004). Sandra Elena et al., Barriers to Enforcing Court Judgments in Peru, Winning in Court is Only Half the Battle: A Perspective from SMEs and Other Users (IFES-USAID Apr. 2004). 30

Keith Henderson & Violane Autheman, A Model Framework for a State of the Judiciary Report for the Americas (IFES-USAID 2003) (contributor). Keith Henderson, Violane Autheman & Sandra Elena, Executive Summary and State of the Judiciary Report, A Tool for Monitoring and Reporting on Priority Judicial Integrity Reforms, in State of the Judiciary Report: Honduras 2003 (IFES-USAID Apr. 2004). Sandra Elena et al., Executive Summary, Key Findings on the Obstacles to the Fair and Effective Enforcement of Judgments against the State, and Programmatic Recommendations to Improve the Fairness and Effectiveness of the Enforcement of Judgments, in Barriers to the Enforcement of Court Judgments and the Rule of Law (IFES-USAID 2003). Sandra Elena et al., Formacin tica y Ciudadana (2000). UNDP-Argentine Senate, Argentina Human Development Report (1996). UNDP-Argentine Senate, Argentina Human Development Report (1995). .

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Exhibit B Judicial Independence Indices The Judicial Independence Indicator (World Economic Forum) The World Economic Forum was established in Switzerland in 1971. It is an independent international organization committed to improving the state of the world by engaging business, 27 political, academic and other leaders of society to shape global, regional and industry agendas. The Global Competitiveness Report, produced by the World Economic Forum, is based on The Global Competitiveness Index. The [Global Competitiveness Index] is based on 12 pillars of competitiveness, providing a comprehensive picture of the competitiveness landscape in countries 28 around the world at all stages of economic development. The pillars are: institutions, infrastructure, macroeconomic environment, health and primary education, higher education and training, goods market efficiency, labour market efficiency, financial market development, technological readiness, market size, business sophistication, and innovation. The World Economic Forum has published The Global Competitiveness Report annually since 1979. Prior to 2000, the report presented an overall index that was known simply as the Competitiveness Index. Starting with the 2000 Report, this measure was relabeled as the Growth Competitiveness Index. Since 2004 the index was renamed as the Global Competitiveness Index. The number of countries included each year in the index varies, with the latest index covering 139 countries. Regarding the 12 pillars mentioned above, the Global Competitiveness Index provides a weighted average of over 113 different variables, where each variable is considered to reflect one aspect of competitiveness. One of the variables taken into account to accomplish the Institutions pillar is Judicial Independence. Most of the data comes from the Executive Opinion Survey, a comprehensive annual survey conducted by the World Economic Forum together with its network of Partner Institutes in the countries covered by the report. [T]he Forum has established a close collaboration with its network of over 150 Partner Institutes that administer the Executive Opinion Survey in their respective countries. The Partner Institutes are, for the most part, recognized economics departments of national universities, independent research institutes, or business organizations. The valuable collaboration helps to ensure that the Survey is conducted in a 29 consistent manner across the globe. Some of the data also comes from publicly available sources (i.e., The World Bank, The World Health Organization, UNESCO). Most questions in the Executive Opinion Survey follow a structure asking participants to evaluate, on a scale of 1 to 7, one particular aspect of their operating environment. At one end of the scale, 1 30 represents the worst possible situation, and at the other end of the scale 7 represents the best.

World Economic Forum. http://www.weforum.org/. Global Competitiveness, World Economic Forum, http://www.weforum.org/issues/global-competitiveness. 29 WWORLD ECONOMIC FORUM, GLOBAL COMPETITIVENESS REPORT 2009-2010 50 (2009), http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2009-10.pdf; see also WORLD ECONOMIC FORUM, GLOBAL COMPETITIVENESS REPORT 2008-2009 68, http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2008-09.pdf. 30 WORLD ECONOMIC FORUM, GLOBAL COMPETITIVENESS REPORT 2009-2010 50 (2009), http://www3.weforum.org/docs/WEF_GlobalCompetitivenessReport_2009-10.pdf; see also WORLD28

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The De Facto Index of Judicial Independence (CESifo Group) Lars P. Feld and Stefan Voigt from CESifo Group (Institute for Economic Research) developed two indicators which together demonstrate the level of judicial independence in a country, and published them in the working paper entitled, Economic Growth and Judicial Independence: Cross Country Evidence Using a New Set of Indicators.33 These indicators were published only once, in April 2003. In the paper, two indicators of Judicial Independence (JI) are introduced: (i) a De Iure indicator focusing on the legal foundations of judicial independence and (ii) a De Facto indicator focusing on the factually ascertainable degree of judicial independence. The De Facto indicator measures the actual implementation of what is written down in legal documents. To assess the De Facto Judicial Independence, eight variables have been used. Each of the eight variables can take on values between 0 and 1, with greater values indicating a higher degree of Judicial Independence. The eight variables in the De Facto Judicial Independence Index are: (1 3) A crucial aspect of the De Facto Judicial Independence Index will be the effective average term length of the members of the highest court. . . [A] country gets the highest possible rating if the average term length is twenty years (or more). If the actual term length and the one to be expected on the basis of the legal foundations deviate, the country is coded 0 in the following variable. Removing a judge before the end of term is a serious breach of judicial independence. Whenever that has occurred at least once, the country is coded 0 for that variable. (4) The influence of a judge depends on the number of other judges who are members of the same court. By increasing the number of judges, the weight of those judges who do not decide along the lines of the preferences of the median members of the other branches can supposedly be diminished. It was thus asked how many times the number of judges had been changed since 1960. (5 6) . . . With regard to the De Facto situation, [the authors] were interested to learn whether the incomes of judges have at least remained constant in real terms. But the efficacy of courts does not only depend on the income level of judges but also on the number of clerks employed, the size of the library, the availability of modern computer equipment etc. [The authors] have tried to take this aspect into account by asking for the development of the courts budget as an organization. (7) Any change in the basis of the legal foundation of the highest court will increase uncertainty among its potential users, i.e. will be counter to one of the most fundamental functions of the law. Frequent changes of the respective legal rules are here interpreted as an indicator for low De Facto independence. (8) The De Facto degree of judicial independence is low if decisions of the highest court, in order to be implemented, depend on some action of one (or both) of the other branches of government and

LARS P. FELD & STEFAN VOIGT, ECONOMIC GROWTH AND JUDICIAL INDEPENDENCE: CROSS COUNTRY EVIDENCE USING A NEW SET OF INDICATORS, CESifo Working Paper No. 906, 7-8 (April 2003), http://www.ifo.de/portal/pls/portal/docs/1/1189798.PDF.

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The Tenure of Supreme Court Judges 1960-1995 Indicator (Inter-American Development Bank) The Inter-American Development Bank and the David Rockefeller Center for Latin American Studies of Harvard University produced the Politics of Policies: Economic and Social Progress in Latin America, 2006 Report, which includes a chart comparing the length of judicial tenure in various countries in Part IV, and also describes the effect of terms and tenures of judges on Judicial Independence. The report mentions that [t]he reasoning behind establishing longer (or lifelong) terms for judges is to provide greater job security so that judges concerns about holding their position or being promoted do not influence their decisions.35 However, the report also highlights the gap between the letter of the law and reality by saying that [d]espite the existence of lifetime tenure for judges in Ecuador, for instance, President Lucio Gutirrez removed 27 of 31 Supreme Court judges in December 2004. Thus longer de jure tenure for Supreme Court judges has not necessarily translated into the lengthening of tenures in many countries.36 The following chart is included in Part IV of The Politics of Policies and shows the average tenure of Supreme Court judges in selected Latin American countries from 1960 to 1995. The authors of the article took this chart from a report published by Henisz in 2000.37

INTER-AM. DEV. BANK, DAVID ROCKEFELLER CTR. FOR LAT. AM. STUDIES, & HARVARD UNIV., THE POLITICS OF POLICIES: ECONOMIC AND SOCIAL PROGRESS IN LATIN AMERICA, 2006 REPORT 86 (Ernesto Stein et al. eds, 2005), http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=1600271. 36 Id. 37 Id.

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General Notes: ... in a data column signifies that data are not available or are not relevant (for example, country status has changed, as with the former Soviet republics). "0" indicates a value of either zero, less than one-half the unit of measure used in the table, or greater than negative one-half the unit of measure used in the table.

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Exhibit E Considered Documents64 The documents considered in the preparation of this report include the following: 1. Agustn Grijalva, Courts and Political Parties: The Politics of Constitutional Review in Ecuador (Apr. 14, 2010) (Ph.D. dissertation, University of Pittsburgh), http://etd.library.pitt.edu/ETD/available/etd-04192010155029/unrestricted/grijalva_agustin_2010_etd. 2. Boris Begovic, Corruption: concepts, types, causes, and consequences (Centro para la Apertura y Desarrollo de Amrica Latina 2005), http://www.cadal.org/documents/documento_26_english.pdf. 3. CIMA (Ibero-American Consortium of Market Research and Consulting Companies), IberoAmerican Governance Barometer [Barmetro Iberoamericano de Gobernabilidad], 2009 and 2010, http://www.cimaiberoamerica.com/. 4. Organic Code of the Judicial Function [Cdigo Orgnico de la Funcin Judicial], Official Gazette Supp. #299 (Mar. 9, 2009) (Ecuador), http://issuu.com/cce1/docs/codigo_organico?mode=embed&layout=http%3A%2F%2Fskin.issu u.com%2Fv%2Flight%2Flayout.xml. 5. Comisin Iberoamericana de tica Judicial, Ibero-American Model Code of Judicial Ethics [Cdigo Iberoamericano de tica Judicial], http://www.cidej.org/web/guest/21. 6. Comisin Iberoamericana de tica Judicial, Latin American Code of Judicial Ethics, http://www.deontologie-judiciaire.umontreal.ca/fr/textes%20int/codes%20et%20enonces.html 7. Constitucin de 1978, codificada en 1997 (Ecuador), http://constituyente.asambleanacional.gob.ec/documentos/biblioteca/1978-codificada-en1997.pdf. 8. Constitucin de la Repblica del Ecuador 1998, http://constituyente.asambleanacional.gob.ec/documentos/biblioteca/constitucion_1998.pdf. 9. Constitucin de la Repblica del Ecuador 2008, http://www.funcionjudicial.gov.ec/cj/index.php?option=com_wrapper&view=wrapper&Itemid =243. 10. Formulario para la Declaracin Jurada, Instructivo para Elaborar y Presentar la Declaracin Patrimonial Jurada, http://www.contraloria.gov.ec/Formularios.asp?id_Seccion=18. 11. Hctor Mario Chayer, tica Judicial y Sociedad Civil: Tcnicas de incidencia (2008). 12. Emilio J. Crdenas and Hctor M. Chayer, Judicial Corruption: Mechanisms of Prevention and Eradication [Corrupcin Judicial: Mecanismos para prevenirla y erradicarla] (2005). 13. Hctor Chayer and Sandra Elena, Defining the Impact of ROL Programs, in Democracy at Large 3-1 (IFES 2006). 14. Hernn Salgado Pesantes, El Poder Judicial en Ecuador (2006), http://congreso.us.es/cidc/Ponencias/judicial/Hernan%20Salgado.pdf. 15. Consejo de la Judicatura, Informacin General sobre Funciones de la Escuela Judicial, http://www.funcionjudicial.gov.ec/cj/index.php?option=com_wrapper&view=wrapper&Itemid =184. 16. Inter-American Development Bank, David Rockefeller Center for Latin American Studies, & Harvard University, The Politics of Policies: Economic and Social Progress in Latin America,64

Documents on this list are available upon request.

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17. 18.

19.

20. 21. 22.

23.

24. 25. 26.

27.

28. 29.

30. 31. 32.

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