Alarcón Flores et al v. Ecuador

The 117 authors of the communication are all of Ecuadorian nationality and are adults of legal age (see annex). The authors claim that the State party violated their rights under article 9, read individually and in conjunction with articles 1 (3), 2 (1) and (2) and 5; and under articles 10, 11 and 12 of the Covenant. The Optional Protocol entered into force for the State party on 5 May 2013. The authors are represented by counsel.

On 17 June 2016, the Committee, acting through its Working Group on Communications, decided to examine the admissibility of the communication separately from its merits.

On the same date, the Committee, also acting through its Working Group on Communications, decided not to request the State party to take interim measures, as provided for under article 5 of the Optional Protocol, as it had not received sufficient individualized information to substantiate the existence of possible irreparable damage to the authors.¹

1. The authors sought interim measures, requesting the State party to: (i) suspend the debt enforcement and foreclosure proceedings initiated by the Central Bank of Ecuador against them, and order the return of their homes to those who had already been subjected to foreclosure proceedings; and (ii) ensure that the authors and members of their families have access to adequate health care and medical services, in particular in the case of persons with a serious illness and a fragile economic situation. ↩

On 23 February 2017, the State party requested the Committee to revoke its authorization of 1 February 2017 for intervention of the International Network for Economic, Social and Cultural Rights (ESCR-Net) (see para. 6.1 below). The State party argued that article 8 (3) of the Optional Protocol and article 14 (1) of the provisional rules of procedure under the Optional Protocol did not entitle the Committee to admit and review documentation from non-governmental organizations, as they could not be considered “international organizations” within the meaning of article 8 (3) of the Optional Protocol; that both parties to the communication had already submitted their observations and comments on admissibility and, therefore, any third-party submission on admissibility was time-barred; and that the intervention of ESCR-Net as a third party would result in a procedural imbalance to the detriment of the State party.

On 18 April 2017, the Working Group on Communications, acting on behalf of the Committee, denied the State party’s request of 23 February 2017 and stated that, under article 8 (1) of the Optional Protocol, the Committee could accept relevant information and documentation submitted by third-party persons or bodies where necessary to properly decide on a case, provided that such submissions were authorized by the Committee and subsequently transmitted to the parties for comments and observations.

In the present Views, the Committee first summarizes the information and the arguments submitted by the parties and the intervening third party, without expressing any opinion, and then considers the admissibility issues.

The authors or their deceased family members worked at the Central Bank of Ecuador for many years, although their respective employment relationships with the Bank began and ended on different dates. The authors provide a detailed description of the rules governing labour obligations between the Bank and its employees, in particular with regard to the retirement system, since 1927. The legal provisions regulating the retirement system were amended on several occasions.

In 1992, the Bank’s Financial and Monetary Policy and Regulation Board amended the rules on additional pensions, which had been in force since 1964, established the Retirement Pension Fund for employees, retirees and pensioners and entrusted the latter with the responsibility to provide retirement, disability and survivors pensions, independently of the system administered by the Ecuadorian Social Security Institute. The Board also established a special reduced pension scheme.

As part of a policy of modernization of the State and reduction of staff, the Central Bank of Ecuador changed the requirements for access to retirement benefits in a way that would enable it to downsize without prejudicing the retirement rights of its employees. The Retirement Pension Fund Regulations (decision No. JM-446-FPJ) established two retirement pension schemes: (a) a pension scheme for employees 50 years of age or older with 25 or more years of service and (b) a special reduced pension scheme for employees of at least 45 years of age who had been contributing to the Fund for 25 years or more. Subsequently, the Executive Committee of the Financial and Monetary Policy and Regulation Board adopted decision No. JM-484-BCE on 6 May 1993, changing the requirements for accessing the retirement pension and establishing that, within 30 days of the adoption of the decision, employees who had accumulated 65 points would be entitled to retirement benefits — the number of points being the sum of the person’s age and number of years of service at the Bank — provided that the employee had been contributing to the pension fund for at least 20 years. Similar decisions were adopted in 1995, 1997 and 2000 with the aim of reducing the number of employees at the Bank. Many Bank employees, including the authors, retired under these rules. Between 1992 and 2004, the number of Bank employees was reduced from over 5,000 to approximately 1,000.

On 7 January 2004, the Bank’s Board of Directors adopted decision No. DBCE-155-FPJ, which aligned the administration, organization and operations of the Retirement Pension Fund with the legal provisions in force at the time. In this context, it decided to create a supplementary social insurance fund, and on 25 January 2005 the Closed Supplementary Social Insurance Fund for Employees of the Central Bank of Ecuador was formally established. The Office of the Superintendent of Banks approved the by-laws of the Fund by means of decision No. SBS-2005-0154.

By means of memorandum No. INSS.2008-772, of 19 August 2008, the National Social Security Administration within the Office of the Superintendent of Banks informed the Chair of the Board of Directors of the Retirement Pension Fund of the findings and conclusions of an audit report. The report questioned the establishment of the Closed Supplementary Social Insurance Fund and several of the measures that the Bank had taken in relation to that Fund on the basis of a very broad interpretation of the Bank’s autonomy, including: relaxing the requirements for accessing Supplementary Fund benefits, in contravention of the Social Security Act of 2001; engaging in operations not authorized by the Bank, such as increasing pensions and increasing the budget for the personnel separation process; and authorizing mortgage loans to Supplementary Fund participants out of the funds of the Retirement Pension Fund and mortgages payable to the Bank, although these operations were not permitted by law. The report indicated that, as a result of the relaxation of the requirements for retirement, 65 per cent of the employees who retired on the basis of age between 1992 and 2004 were between 45 and 55 years of age; 124 people retired before the age of 45; and their retirement benefits lacked a legal basis and therefore could not be considered a vested right. In its final provision, the memorandum indicated that the Board of Directors of the Bank and the Fund had 60 days to give effect to its provisions.

On 16 October 2008, the Union of Central Bank of Ecuador Retirees, an association of Bank retirees, filed an application for amparo with the Twenty-fourth Civil Court of Pichincha, requesting the suspension of memorandum No. INSS.2008-772 of 19 August 2008 as an administrative act. The authors claimed to be members of the Union. On 4 December 2008, Court No. 24 rejected the application for amparo because the memorandum in question was not an administrative act, but merely an information document related to the audit report, which had no effect on the rights of employees. On 28 September 2009, the Constitutional Court found that an appeal filed by the Union was inadmissible and upheld the decision of Court No. 24.

On the basis of the 2008 audit report, the Bank’s Board of Directors adopted decision No. DBCE-226-FPJ on 4 March 2009, rescinding decision No. DBCE-155-FJJ of 7 January 2004, which had established the Closed Supplementary Social Insurance Fund. On the same day, it adopted decision No. DBCE-227-FPJ, ordering that the necessary actions should be taken to verify and, where warranted, review the pensions of retired staff and that pensions should cease to be paid to former Bank employees who had retired before the age of 45 because their pensions had been awarded without a legal basis and could not be considered a vested right.

On 8 May 2009, the Union filed an extraordinary motion for protection in Court No. 4 of Pichincha, arguing that decision No. DBCE-0227-FJP adopted by the Board of Directors of the Central Bank of Ecuador violated the constitutional rights of the 124 retirees affected by the decision.

On 18 May 2009, Court No. 4 ruled that there had been no violation of rights and rejected the motion for protection. The Court stated, inter alia, that the motion for protection had been suppletive and that the normal procedure for challenging an administrative act had not been followed, contravening article 43 (3) of the Rules of Procedure for the Exercise of the Powers of the Constitutional Court for the Transitional Period, published in Official Gazette No. 466 of 13 November 2008, which provides that there may be no recourse to legal action to enforce rights other than the ordinary actions provided for by law, unless such action is used as an interim measure to prevent irreparable harm, since administrative agencies have their own channels for challenging decisions taken by a public authority. On 8 July 2009, the Pichincha Provincial Court of Justice rejected an appeal filed by the Union and upheld the decision of Court No. 4. The Provincial Court stated that the motion for protection was not an appropriate remedy.

On 5 October 2009 the Act amending the State Monetary and Banking System Act was published. The third general provision of the amending Act stipulates: The Central Bank of Ecuador shall not, under any circumstances, grant to its present or future employees any retirement, orphan or survivor benefits, loans, or any other benefits which fall within the exclusive remit of the social security system. Retirement, survivor, widowhood, disability and other pensions for which payment is currently being made by the Central Bank of Ecuador shall be adjusted as from the date of entry into force of this Act in order to bring them into conformity with the maximum allowable amounts under the Social Security Act, provided the recipients meet the applicable requirements established under that Act. Former employees who are receiving such benefits solely because they met the requirements of decisions adopted by the Monetary Board or the Board of Directors of the Central Bank of Ecuador shall be paid only, and in respect of any type of benefit, an amount proportional to the extent to which they meet the applicable requirements under the Social Security Act. Former employees of the Central Bank of Ecuador who used time offsets or advance contributions to qualify for retirement benefits shall not be entitled to a retirement pension, or any other type of pension, nor shall former employees of the Central Bank of Ecuador who, having been members of the Monetary Board or the Board of Directors, adopted any of the decisions or regulations relating to pension schemes from which they may subsequently have benefited.

On 18 December 2009, the Union filed a public action suit before the Constitutional Court, arguing that the third general provision of the Act amending the State Monetary and Banking System Act was unconstitutional. On 24 August 2010, the Constitutional Court agreed to hear the case. According to the authors, the constitutional challenge was intended to bring about the revocation of the contested Act and to nullify its effects through the elimination of the provisions that abolished benefits arising from the right to social security within the system of the Central Bank of Ecuador.

The authors state that several of them applied for consumer loans, mortgages and other loans from the retirement pension system, which they were then unable to repay owing to the suspension of their pensions in 2009. Nevertheless, in July 2013, the Central Bank of Ecuador initiated legal proceedings aimed at enforcing payment of the debts.

The Monetary and Financial Code, promulgated on 12 September 2014, repealed the Act amending the Monetary System Act and, in its twentieth transitory provision, established: Restructuring of the Central Bank of Ecuador: In order to implement the new management structure of the Central Bank of Ecuador, within one year from the date of entry into force of the Code, the General Manager shall be empowered to implement and take all necessary action, in accordance with the law, […]. No benefits shall be granted whose origin is contrary to the provisions of the Social Security Act and no one shall be entitled to pension or other benefits who, as a former employee of the Central Bank of Ecuador, used time offsets or advance contributions in order to qualify for retirement benefits or who, as a former member of the Monetary Board or the Board of Directors, adopted and directly benefited from decisions or regulations contrary to the retirement requirements. Any administrative or judicial proceedings concerning retirement pensions which are pending or in litigation in the courts shall go forward under the procedural rules applicable to the matter and shall continue until their conclusion.

The authors assert that the communication meets the requirement for admissibility established under article 3 (1) of the Optional Protocol. The Union filed an application for amparo and a motion for protection, which were denied at final instance by the Constitutional Court and the Provincial Court of Justice of Pichincha, respectively. In December 2009, the Union filed a public action lawsuit challenging the constitutionality of the amending Act, which was still pending at the time the communication was submitted to the Committee and, therefore, has been unreasonably prolonged. Moreover, 68 legal proceedings have been initiated by individual authors since 2009, including administrative litigation proceedings and applications for protection. The authors assert that an administrative litigation proceeding would have to examine the legality of decision No. DBCE-0227-FJP of 3 March 2009 in the light of the Monetary Code of 2014, which gives continuity to the Act amending the State Monetary and Banking System Act and “legitimizes” the measures to which the decision in question gave rise. The same applies to the other authors who have lodged administrative complaints without success. In this context, the constitutional challenge against the amending Act is the most appropriate means of resolving the problems caused by the abolition of the Fund, as by resolving the question of a general nature, things could be returned to their initial state and, at the same time, the normative conflicts between the Constitution and the laws in question could be eliminated.

The authors assert that, although the communication relates to events that occurred in 2008 and 2009, when the authorities took the measures that gave rise to the violations of their Covenant rights, the violation of these rights has continued after 5 May 2013, the date on which the Optional Protocol entered into force for Ecuador, because of the Constitutional Court’s delay in ruling on the constitutional challenge lodged by the Union against the amending Act, which in turn has affected any possible outcome of the administrative litigation actions filed separately by the authors, in which the legality of the State’s actions is under review. Furthermore, on 12 September 2014 the Monetary Code was published, in which the twentieth transitory provision “gives continuity to the situation created with the amending Act of 2009.”

The authors state that, at the time the communication was submitted to the Committee, 65 authors had individually initiated legal proceedings against the Central Bank of Ecuador; 47 authors had not initiated any legal proceedings against the Bank, but they were involved in various debt collection proceedings for debts they had incurred with the intention of repaying them out of their pensions from the Fund; 8 authors had received seizure notices for their homes; and 6 authors had serious illnesses or family members requiring health care. They contend that as former employees of the Central Bank of Ecuador, they had different legal statuses vis-à-vis the Fund, owing to their personal circumstances and number of years worked at the Bank, and that they enjoyed different types of benefits from the Fund, but that all of them, as beneficiaries of the Fund, had nevertheless suffered a violation of the right to social security as a result of the suspension of payments and the elimination of the Fund by the State party. Although the measures in question affected each of them individually, there is a commonality and connectedness among their cases with regard to violations of their rights under the Covenant. The authors therefore request that the Committee not treat their cases individually but, rather, as a group in a single communication, as an individual examination of the violations suffered by each of the authors would detract from the spirit of the communication, dilute the legal claim and diminish the procedural economy and effectiveness of the proceeding.²

2. The authors cite a number of cases examined by the Inter-American Commission on Human Rights (report on cases No. 9777 and No. 9718); the Inter-American Court of Human Rights (Hilaire, Constantine, Benjamin et al. v. Trinidad and Tobago); and the European Court of Human Rights (María Atansiu and others v. Romania, applications No. 30767/05 and No. 33800/06); Case relating to certain aspects of the laws on the use of languages in education in Belgium v. Belgium, applications No. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, and 2126/64. ↩

The authors claim that the State party violated their rights under article 9, read individually and in conjunction with articles 1 (3), 2 (1) and (2) and 5; and under articles 10, 11 and 12 of the Covenant.

The authors argue that they retired and accessed benefits from the Fund of the Central Bank of Ecuador in accordance with the rules that the Bank itself had established on the matter; they also note that the Fund was an autonomous body, in which contributions were voluntary. The authors contributed to the system with the aim of ensuring a sustainable life for themselves after retirement. However, the authorities disregarded a vested right and arbitrarily decided to suspend the payment of social benefits to which they were entitled under the Closed Supplementary Social Insurance Fund, in violation of the right to social security recognized under article 9 of the Covenant. This measure has had a disproportionate effect on the authors. As a result, the authors lost a source of income — the sole source for some of them — that enabled them to meet basic needs and enjoy an adequate standard of living.

The measures taken by the authorities who ordered the suspension of the benefits that the authors were receiving under the Closed Supplementary Social Insurance Fund had a regressive effect on the social security system for employees of the Central Bank of Ecuador, for which there is no reasonable justification. The authorities did not comprehensively examine alternatives and there was no genuine consultation with the groups affected by these measures. Furthermore, the measures taken are discriminatory against the authors, as other persons only had their pensions reduced or received a lump sum payment equivalent to the amount they had contributed. The Act amending the State Monetary and Banking System Act and the Monetary Code legitimized the decision to disregard the authors’ right to enjoy a retirement pension, without providing them with a minimum essential level of social security. In addition, the Constitutional Court’s undue delay in dealing with the constitutional challenge against the amending Act has, in effect, left the authors without an adequate remedy for the violations of their right to social security. Consequently, the State party also violated article 9, read in conjunction with articles 1 (3), 2 (1) and (2), and 5 of the Covenant.

The violation of the authors’ right to social security also impaired their enjoyment of their rights to family protection and assistance, an adequate standard of living, and health, in violation of articles 10 to 12 of the Covenant. This has been exacerbated by the debt collection suits and foreclosure proceedings brought by the Central Bank of Ecuador against some of the authors to recover loans granted by the Fund, including against the relatives of deceased retirees. The authors point out that, while they do not deny the debts that the Bank is seeking to collect, they were repaying them out of their pension benefits. The situation has been further exacerbated by the lack of diligence on the part of the Central Bank of Ecuador, which did not demand repayment of the debts for many years, as a result of which the amount owed increased. The Bank failed to acknowledge the amounts paid by the authors and required them to repay the principal plus fees and costs. As a result of these proceedings, the authors have had to sell movable and immovable property and borrow money from friends and relatives, among other measures. Some authors have lost their homes in order to pay off debts, are on the verge of being declared insolvent and have even been barred from employment in the public sector. Moreover, as pensioners under the Bank’s Closed Supplementary Social Insurance Fund, the authors had health insurance and access to disability benefits, which ceased when their pensions were withdrawn.

The authors request that the Committee declare the State party responsible and recommend comprehensive redress, including restitution, rehabilitation and satisfaction measures and guarantees of non-repetition; these measures should include individual monetary compensation to each author for damage and injury, taking into account, inter alia, the amount of the pension that each individual ceased to receive and the time elapsed.

On 17 August 2016, the State party submitted its observations on admissibility and argued that the communication was inadmissible on the grounds that domestic remedies had not been exhausted; that the facts that were the subject of the communication had occurred prior to the entry into force of the Optional Protocol for the State party; and that the complaint was manifestly unfounded in accordance with article 3 (1) and (2) (b) and (e) of the Optional Protocol, respectively.

The State party provides a detailed description of the rules governing the social security system in Ecuador, as well as the Retirement Pension Fund of the Central Bank of Ecuador, including the administrative measures taken with regard to the Fund.

The State party points out that, by decision No. JM.629-BCE of 6 August 1997, the Monetary Board had amended the Fund’s regulations and stipulated that in the event that the Bank decides to close offices or terminate internal administrative procedures, tasks, posts or positions, employees who qualify or are due to qualify to receive retirement benefits under these regulations within one year of the date of notification of said closure or termination by the institution may claim them, provided they pay in advance the balance of the contributions due for the specified period of employment and age.

The 2008 report of the National Social Security Administration looked into several aspects of the operation of the Closed Supplementary Social Insurance Fund; inter alia, it looked at the validity of decisions made by the Bank to enable it to grant employees retirement pensions that were not in accordance with the social security laws, allowing for example the purchase of advance contributions to make up 20 years of service and 45 years of age; the purchase of entitlements using retirement assets; and the payment of retirement pensions of up to 100 per cent of earnings. It was therefore concluded that retirement pensions now being paid that are not based on the above rules and calculations cannot be deemed vested rights, since they are privileges with no basis in law. The former employees concerned are listed in the annex to that report (List of 124 retirees who retired before the age of 45 by purchasing advance contributions). The General Manager and the Board of Directors of the Bank shall take the necessary measures to ensure the proper use of public resources given that these pensions cannot be taken into account in the annual budgets of the Bank.

The amending Act of 2009, which had been declared unconstitutional following an application for constitutional review submitted by the Union of Central Bank of Ecuador Retirees in 2009, was expressly repealed by the 2014 Monetary Code.

The communication does not meet the admissibility criterion established in article 3 (2) (b) of the Optional Protocol since the facts that are the subject of the communication occurred before 5 May 2013, the date of the entry into force of the Optional Protocol for Ecuador.³ Based on the facts as set forth in the communication, the key action that allegedly violated the authors’ rights is the Central Bank of Ecuador Board of Directors decision No. DBCE-227-FP of 4 March 2009. Even if the third general provision of the amending Act were found to be applicable to the present case, the Act was published on 5 October 2009, i.e., before the entry into force of the Optional Protocol.

3. The State party refers to article 28 of the Vienna Convention on the Law of Treaties, ratified by Ecuador on 11 January 2005. It also refers to the jurisprudence of the Human Rights Committee, Avadanov v. Azerbaiyán, communication No. 1633/2007, para 6.2; the Committee on the Elimination of Discrimination against Women, communication No. 7/2005, Cristina Muñoz-Vargas y Sainz de Vicuña v. Spain; European Court of Human Rights, Blecic v. Croatia, judgment of 8 March 2006, para. 70, and Janowiec and Others v. Russia, judgment of 21 October 2013, para. 128. ↩

When the initial communication was submitted to the Committee, none of the authors had exhausted all available domestic remedies in accordance with article 3 (1) of the Optional Protocol, and specifically the administrative litigation procedure. Not all the authors had lodged an appeal against Central Bank of Ecuador Board of Directors decision No. DBCE-227-FPJ. The State party recalls the Committee’s jurisprudence to the effect that the mere perception that domestic judicial remedies are not effective is not sufficient to exempt the author of a communication from the requirement to try them.⁴ Other authors had filed administrative appeals against the contested decision, but the judicial proceedings had not finished by the time the communication was submitted to the Committee, but were still in the lower court or in cassation. In other cases, the lower court judgments rejecting the applications had not been appealed in cassation before the National Court of Justice.⁵ Some cases were declared abandoned for lack of procedural activity.

4. The State party refers to the Committee’s jurisprudence, communication No. 3/2014, C.A.P.M. v. Ecuador, para 7.6. ↩
5. The State party refers to the jurisprudence of the Human Rights Committee with regard to communications No. 2325/2013, Kandem Foumbi v. Cameroon, para. 8.4; and No. 1573/2007, Vaclav Sroub v. Czech Republic, para. 8.3. ↩

In the Ecuadorian legal order any administrative act, regulation or decision issued by any public administration, such as Central Bank of Ecuador Board of Directors decision No. DBCE-227-FP, is subject to challenge and to a request for review, and may be quashed by an administrative court, even if administrative channels have not previously been exhausted. The law in force at the time of the events established that the purpose of the administrative remedy was to challenge administrative decisions or acts that harm or fail to recognize a subjective right. Thus, legal action through administrative channels — by the lodging of a complaint before the Administrative Court in their place of residence, as a court of first instance — was the appropriate remedy for dealing with the situation alleged by the authors. They could subsequently have lodged an appeal in cassation against the judgment of that court, which would have been tried by the National Court of Justice.⁶

6. The State party refers to article 69 of the Legal and Administrative Rules governing the Executive Branch, Executive Decree No. 2428; articles 1 and 3 of the Act on Administrative Jurisdiction; and article 2 of the Cassation Act. ↩

In some cases, the authors filed motions for protection. This remedy is intended to provide direct and effective protection of constitutional rights, and may be lodged when such rights have been violated by the act or omission of any non-judicial public authority. However, the Constitutional Court, in a binding precedent contained in binding judgment No. 001-10-PJO-CC of 29 December 2010, established that a motion for protection is not appropriate when the matter concerns issues of mere legality, for which there exist ordinary judicial channels, particularly administrative ones, through which to claim one’s rights. For this reason, these motions, including the one filed by the Union, were dismissed by the courts.

With regard to the public action suit filed by the Union in respect of the amending Act, the State party points out that the Constitution provides for the review of the constitutionality of laws in the abstract by the Constitutional Court. However, its consideration is not based on one particular specific situation, but rather on the rule in general, which results in an erga omnes effect when it hands down its decision and the contested provision deemed unconstitutional is withdrawn from the legal order. In that regard, in the specific case of the authors, the application for constitutional review was not an appropriate or effective remedy and did not need to be exhausted in order to resolve their legal situation, as it has no direct reparatory effect and does not permit suspension of the effects of the act or rule challenged. In addition, under article 95 of the Organic Act on Judicial Guarantees and Constitutional Oversight, the judgment cannot apply retroactively to the time when the invalidated provision was introduced, unless it is determined that (a) it is necessary in order to preserve the normative force and superiority of constitutional provisions; (b) for the effective exercise of constitutional rights; and (c) that it does not affect legal certainty and the general interest. These three conditions must be met jointly and simultaneously for a constitutional judgment to have retroactive effect, and they must be tested in each specific case.

The authors’ claims concerning the violation of Covenant rights are manifestly unfounded and thus inadmissible under article 3 (2) (e) of the Optional Protocol. The facts presented in the communication do not demonstrate that there was a violation of the rights set forth in the Covenant. Indeed, the Central Bank of Ecuador pension scheme constituted independent supplementary insurance, yet the authors could still join the compulsory general social security system, with its allowances and benefits, which cover illness, maternity, paternity, workplace accident, redundancy, unemployment, old age, invalidity, disability and death.

In a letter of 24 October 2016, the authors submitted their comments on the State party’s observations, asserting that the communication met all the admissibility criteria under the Optional Protocol.

The authors argue that the decisions of the Central Bank of Ecuador Monetary Board and Board of Directors constituted binding legal norms on the basis of which they, as beneficiaries, acquired their right to a retirement pension. This right was exercised until 4 March 2009, when the Central Bank Board of Directors decided to do away with the Closed Supplementary Social Insurance Fund and the pension received by former Bank employees who had retired before the age of 45. The authors point out that they took early retirement under decision No. JM-629-BCE of 6 August 1997, adopted by the authorities themselves in order to reduce the staff of the Bank.

The authors reiterate that the communication meets the requirements for admissibility established in article 3 (2) (b) of the Optional Protocol. At the time that they submitted their comments to the Committee, their rights were still being violated because they were still not receiving the pensions from the Closed Supplementary Social Insurance Fund. In fact, following the entry into force of the Optional Protocol for Ecuador, further legal acts entrenched the violation of their rights: (a) the entry into force of the Monetary Code on 12 September 2014, which maintains a provision similar to the third general provision of the amending Act of 2009; and (b) the institution of enforcement proceedings against those retirees who had taken out home-purchase mortgages with the Closed Supplementary Social Insurance Fund, and whose repayments were to be deducted from their retirement pensions. In several cases, enforcement proceedings ended with the retirees losing their homes, either auctioning them off or selling them to cover outstanding loans.

The authors reiterate that the communication meets the admissibility criteria under article 3 (1) of the Optional Protocol. Article 76.8 of the Organic Act on Judicial Guarantees and Constitutional Oversight provides that “[w]here repealed provisions have the potential to produce legal effects that are contrary to the Constitution, they may be challenged and declared unconstitutional”. This provision has been applied on numerous occasions by the Constitutional Court itself.⁷ Therefore, the Constitutional Court, according to its own jurisprudence, should have determined whether the contested provision of the amending Act, repealed by the Monetary Code, was constitutional. In this context, the authors claim that the proceedings relating to the Union’s application for constitutional review were unreasonably prolonged.

7. The authors refer to the jurisprudence of the Constitutional Court: judgments No. 001-13-SIO-CC of 28 February 2013, No. 004-14-SIO-CC of 24 September 2014, No. 003-15-SIN-CC of 25 February 2015, No. 001-16-SIA-CC of 20 January 2016, No. 013-16-SIN-CC of 2 March 2016 and No. 014-16-SIN-CC of 2 March 2016. ↩

The authors state that, using the Union’s amparo appeal against the 2008 report, filed on behalf of the Central Bank of Ecuador retirees, they wished to take the discussion on the violations of their rights up to the constitutional level, this being the correct way to obtain protection quickly and simply. That was also why the Union had filed a motion for protection against decisions DBCE-226-FPJ and DBCE-227-FPJ. In respect of the decisions of Court No. 4 and the Provincial Court of Pichincha, which rejected the motion on the grounds that the normal channels, i.e., administrative proceedings, had not been used, the authors claim that this practice is widespread in the State party’s courts due to their lack of independence.⁸ However, once the amending Act was adopted, legitimizing the measures that gave rise to the violation of the authors’ rights, the application for constitutional review was an effective and appropriate remedy in their case, as its ultimate objective was to remove a provision of the amending Act from the legal order. In this regard, they note that, according to article 95 of the Organic Act on Judicial Guarantees and Constitutional Oversight, the Constitutional Court could, exceptionally, give retroactive effect to any ruling on the constitutional challenge in order to protect the rights violated by the amending Act and, later, the Monetary Code.

8. The authors refer to circular No. T1.C1-SNJ-10-1689 of 18 November 2010, sent by the legal secretary of the Office of the President of the Republic to the ministers and secretaries of state, instructing them to initiate proceedings for damages against judges who rule on motions for protection; and to circular No. 3524-UCD-2012 of 9 July 2012, issued by the coordinator of the Disciplinary Control Unit of the Council of the Judiciary, in which it is again noted that penalties should have been imposed on judges who ruled favourably on motions for protection against administrative acts when the claims related to aspects of mere legality that could be challenged in regular court proceedings, in accordance with article 42 of the Organic Act on Judicial Guarantees and Constitutional Oversight and article 9.7 of the Organic Code of the Judiciary. ↩

The authors refer to article 10 of the Act on Administrative Jurisdiction and article 217 of the Organic Code of the Judiciary, which were in force at the time, and maintain that the administrative channel was not appropriate in their case given that the purpose of such an action would have been to determine the legality of decisions Nos. DBCE-226-FPJ and DBCE-227-FPJ, that is, whether they had been issued in accordance with the law or whether there had been a violation of individual rights recognized in provisions with legal rank. However, the adoption of the amending Act on 5 October 2009, gave these decisions legal rank, a status subsequently reaffirmed with the adoption of the Monetary Code of 2014. In these circumstances, the administrative remedy became illusory and ineffective since the elimination of the Fund and elimination of the authors’ pensions were deemed “legal” under Ecuadorian law. Indeed, some of the claims brought before the Administrative Court by the authors individually were dismissed on the basis of the amending Act.

The claims concerning violations of the authors’ rights under the Covenant have been sufficiently substantiated for purposes of admissibility.

On 1 February 2017, the Working Group on Communications, acting on behalf of the Committee, admitted a submission from the International Network for Economic, Social and Cultural Rights (ESCR-Net) under article 8 of the Optional Protocol and in accordance with the guidance on third-party interventions.⁹, ¹⁰

9. The members of ESCR-Net involved in the preparation of the third-party submission were the International Network on Economic, Social and Cultural Rights, the Global Initiative for Economic, Social and Cultural Rights, the Initiative for Social and Economic Rights-Uganda and Ana Lucia Aguirre, lawyer, Colombia. ↩
10. Decision adopted by the Committee at its fifty-ninth session (19 September–7 October 2016). ↩

On 10 March 2017, ESCR-Net submitted its intervention to the Committee, citing the jurisprudence of regional courts and other human rights treaty bodies on the criteria for admissibility in terms of exhaustion of domestic remedies, and on competence ratione temporis. The Committee transmitted the ESCR-Net submission of 10 March 2017 to the State party and the authors and asked for their observations and comments.

On 12 April 2017, 16 June and 22 August 2017, the State party submitted additional observations and comments on the submission by ESCR-Net and reiterated that the communication did not meet the admissibility criteria established in the Optional Protocol.

The State party contends that in the present case, the legal argument is not about the elimination of the authors’ retirement pensions, but about the removal of the additional benefit received by the authors as members of the Closed Supplementary Social Insurance Fund, a benefit that has always been independent of the retirement benefit granted to them under the compulsory general social security scheme. In that regard, the Compulsory Social Security Act (repealed) and, later the Social Security Act, established the pension system to protect against contingencies such as old age by the granting of retirement pensions and benefits — an entitlement that has always been subject to certain criteria such as a minimum age and a set period of contribution, as set forth in the Social Security Act and the Codified Statute of the Ecuadorian Social Security Institute. However, for the employees of the Central Bank of Ecuador to obtain the additional benefit offered by the Fund, they had to meet different criteria from those that applied to recipients of the ordinary retirement benefit under the Compulsory Social Security Act and the Codified Statute of the Ecuadorian Social Security Institute. For that reason, the Office of the Superintendent of Banks, exercising its jurisdiction as the oversight body, issued decisions regulating access to benefits that constituted privileges lacking any legal basis and which therefore could not be considered a vested right. There was no retroactive application of the law.

With regard to the authors’ claim that the facts that gave rise to the alleged violation of their rights in 2009 continue to the present day, since the retirement pensions remain defunct, the State party submits that administrative decision No. DBCE-227-FPJ of 4 March 2009, issued by the Board of Directors of the Central Bank of Ecuador, produced direct and immediate effects at the time of its issuance, which were thus consummated immediately. Subsequently, the effects of the amending Act of 2009 were also direct and immediate. Therefore, the facts that the authors invoke as violations of their rights did not continue after the entry into force of the Optional Protocol for Ecuador.

The adoption of the amending Act had no bearing on the effectiveness of administrative proceedings as a remedy against decision No. DBCE-227-FPJ of 4 March 2009. Moreover, under article 65 of the Act on Administrative Jurisdiction, the deadline for filing such proceedings was 90 days from the day after notification of the decision. The third general provision of the amending Act came into force upon publication in the Official Gazette on 5 October 2009, i.e., seven months after decision No. DBCE-227-FPJ was issued. Therefore, given that the authors did not lodge their complaint within three months, administrative proceedings were time-barred.

An application for constitutional review was not the appropriate remedy to seek the protection or restitution of the rights that were allegedly violated. As a general rule, judgments on constitutionality do not have retroactive effect. The Organic Act on Judicial Guarantees and Constitutional Oversight stipulates that judgments on the constitutionality of laws in the abstract are deemed res judicata and have general application from that time forward. The Act also establishes that, in order to preserve legal certainty and in very exceptional situations only, the effects of constitutionality rulings may be deferred or applied retroactively. Finally, the State party contends that even if the Constitutional Court were to declare the amending Act unconstitutional with retroactive effect, the ruling would have no bearing on the authors’ case, since it would not affect decision No. DBCE-227-FPJ, which was issued by the Central Bank’s Board of Directors before the entry into force of the amending Act.

On 20 June and 2 August 2017, the authors submitted additional comments, including on the intervention of ESCR-Net. They reiterated their claims, namely that the communication meets the admissibility criteria established in the Optional Protocol, and demonstrate that their right to social security under article 9 of the Covenant was violated.

The authors maintain that the communication meets the admissibility criteria under article 3 (1) and (2) (b) of the Optional Protocol. The Committee is competent to consider the present communication by virtue of the adoption of the Monetary Code in 2014, the initiation and execution of enforcement proceedings against the authors for recovery of debts contracted with the Fund and the unjustified delay in processing of the application for constitutional review of the amending Act, all of which occurred after 5 May 2013, the date on which the Optional Protocol entered into force for Ecuador.

The constitutional review proceedings in respect of the amending Act have been unreasonably prolonged. Under article 76.9 of the Organic Act on Judicial Guarantees and Constitutional Oversight and the case law of the Constitutional Court,¹¹ the constitutional review proceedings instituted by the Union should include examination of the constitutionality of the decisions that stopped the authors’ pensions, since that has a direct bearing on the provisions of the amending Act. The principle of ensuring legal consistency requires the Constitutional Court to determine the constitutionality or otherwise of the laws, and also of the decisions, that impaired the victims’ exercise of the right to social security in this case.

11. Judgment No. 014-15-SIN CC of 29 April 2015. ↩

Before considering any claim contained in a communication, the Committee must decide, in accordance with the Optional Protocol, whether or not the communication is admissible.

At a plenary meeting held on 4 October 2017, the Committee considered the present communication and found it to be inadmissible ratione temporis for the following reasons.

The Committee notes that the authors requested that their cases not be treated individually but, rather, as a group, in a single communication, owing to the similarity of their situations (see para. 2.16). In this connection, the Committee takes note of the authors’ claims that, in order to protect their right to social security, the Central Bank of Ecuador Retirees Union filed an application for amparo and a motion for protection that were rejected in final instance by the Constitutional Court and the Pichincha Provincial Court of Justice on 28 September and 8 July 2009, respectively; that, in December 2009, the Union filed a public action suit in the Constitutional Court to challenge the constitutionality of the third general provision of the Act amending the State Monetary and Banking System Act, which was adopted in October 2009; and that the Court’s decision in that case is still pending.

Under article 2 of the Optional Protocol, a communication may be submitted by individuals or groups of individuals, under the jurisdiction of a State party, claiming to be victims of a violation of any of the rights set forth in the Covenant. In the circumstances, the Committee proceeds to consider the admissibility of the communication, which was submitted by the authors as a group, in the light of all the documentation submitted to it by the parties, in accordance with article 8 (1) of the Optional Protocol, and of the common elements between the cases, in particular with regard to the legal action taken by the Union before the domestic courts on behalf of all the authors. The Committee’s conclusions regarding the admissibility of the communication, as submitted by the authors as a group, are without prejudice to the possibility that the authors may find themselves in a different factual and legal position not covered in the present communication and may submit communications to the Committee in the future.

The Committee takes note of the State party’s submission that the Committee is not competent ratione temporis to consider the present communication on the grounds that the events that gave rise to the alleged violations occurred before 5 May 2013, the date on which the Optional Protocol entered into force for Ecuador, and did not continue after that date. The Committee also takes note of the authors’ claims that, although the violations of their rights originated in the adoption of Central Bank Board of Directors decisions Nos. DBCE-226-FPJ and DBCE-227-FPJ of 4 March 2009, the material facts that give rise to the violation of the Covenant are continuous in nature, insofar as the authors still do not receive retirement pensions from the Closed Supplementary Social Insurance Fund; that a decision of the Constitutional Court in relation to the constitutional challenge filed by the Union regarding the third general provision of the 2009 Act amending the State Monetary and Banking System Act remains pending; and that the entry into force of the Monetary and Financial Code on 12 September 2014 and the enforcement proceedings against retirees who took out loans with the Closed Supplementary Social Insurance Fund after 5 May 2013 reaffirmed the earlier measures that violated their rights under the Covenant.

The Committee recalls that the Optional Protocol entered into force for the State party on 5 May 2013 and that, in accordance with article 3 (2) (b) of the Optional Protocol, the Committee must declare a communication inadmissible when the facts that are the subject of the communication occurred prior to the entry into force of the Optional Protocol for the State party concerned unless those facts continued after that date. Other human rights treaties include a similar ratione temporis provision, giving rise to various interpretations; therefore, the Committee proceeds to clarify the admissibility requirement.

The Committee notes that, in order to determine whether a communication satisfies the admissibility criterion established in article 3 (2) (b) of the Optional Protocol, it is necessary to distinguish between the “facts” allegedly amounting to a violation of the Covenant and their “consequences” or “effects”. As the Committee has noted an act that may constitute a violation of the Covenant does not have a continuing character merely because its effects or consequences extend in time.¹² Therefore, when the facts constituting a violation of the Covenant occurred before the entry into force of the Optional Protocol for the State party concerned, the mere fact that their consequences or effects extend in time, after the entry into force, is not sufficient grounds for declaring a communication admissible ratione temporis.¹³ If the distinction between the acts that gave rise to the alleged violation and its ongoing consequences or effects was not made, the ratione temporis admissibility criteria established in the Optional Protocol, relating to the Committee’s competence to consider individual communications, would be virtually irrelevant.

12. Communication No. 4/2014, Merino Sierra v. Spain, decision of admissibility, 29 September 2016, para. 6.7. See also Yearbook of the International Law Commission 2001, vol. II (Part Two), draft articles on responsibility of States for internationally wrongful acts, p. 60, para. 6 of the commentary on article 14 (Extension in time of the breach of an international obligation). ↩
13. For example, if a family was evicted from their habitual home or if a person was denied an old-age pension prior to the entry into force of the Optional Protocol for the State party concerned, a communication submitted against the State party cannot be considered admissible ratione temporis simply because, after the entry into force, the family cannot return to the home or because the pension is not recalculated. ↩

For the purposes of article 3 (2) (b) of the Optional Protocol, the “facts” are the sequence of events, acts or omissions which are attributable to the State party and may have given rise to the alleged violation of the Covenant. As the Committee has noted in previous Views, the judicial or administrative decisions of the national authorities are also considered to be part of the facts when they are the outcome proceedings directly related to the initial events, acts or omissions that gave rise to the violation and could have provided reparation for the alleged violation in accordance with the law in force at the time. When these proceedings take place after the entry into force of the Optional Protocol for the State party concerned, the requirement under article 3 (2) (b) does not prevent a communication from being found admissible. In other words, when a victim applies for these remedies, the national authorities have the opportunity to put an end to the violation in question and provide reparation.

In the present case, the Committee notes that the act which gave rise to the alleged violations of the authors’ right to social security occurred on 4 March 2009, when the Central Bank Board of Directors adopted decision No. DBCE-227-FP, ordering that the 124 persons who had retired before the age of 45, including the authors, should no longer receive retirement pensions from the Closed Supplementary Social Insurance Fund. This decision was executed directly and immediately. In the circumstances of the present case, the Committee considers that the alleged violation of the authors’ right to social security — i.e. the loss of their pension from the Closed Supplementary Social Insurance Fund — occurred on 4 March 2009. Although the authors continue to suffer the consequences of the measure, this does not alter the measure’s immediate nature. Therefore, the facts that gave rise to the violation claimed by the authors are not of a continuing nature and took place prior to the entry into force of the Optional Protocol for the State party.

The Committee notes the further contention by the authors that, for the purposes of determining the Committee’s competence ratione temporis, it must be considered that the proceedings before the Constitutional Court in respect of the Union’s application for constitutional review of the third general provision of the Act amending the State Monetary and Banking System Act, are still pending and have been unreasonably prolonged and that in this case the action is an appropriate remedy to protect the authors’ rights under the Covenant. The Committee notes that, through this remedy, the authors are seeking a constitutional review of the provision in the abstract so that the decisions that would be affected by the general provision, including the decision whereby the payment of retirement pensions was discontinued, may be declared contrary to the Constitution and struck down. In this connection, the Committee notes that, according to the State party, judgments on the constitutionality of a law are not the appropriate remedy for obtaining reparation for the violations alleged by the authors because these judgments review the compatibility of a law with the Constitution in the abstract and do not generally have retroactive effect. While the authors have not refuted the State party’s objection, they have sufficiently demonstrated that the constitutional review of a general legal provision by the Constitutional Court is, in itself, an effective remedy providing the authors with reparation for the alleged violation of their rights under the Covenant. In the light of the foregoing, the Committee considers that the information provided by the parties does not allow it to conclude that the constitutional challenge before the Constitutional Court constitutes an effective remedy in the authors’ case. Accordingly, the constitutional challenge submitted to the Constitutional Court by the Union is not part of the “facts” for the purposes of determining the Committee’s competence ratione temporis under article 3 (2) (b) of the Optional Protocol.

Lastly, the Committee notes that the authors have failed to substantiate how the Monetary Code, which entered into force on 12 September 2014, directly applies to their cases and infringes their rights under the Covenant.

In the light of the foregoing, in the present case the Committee notes that the facts that are the subject of the communication, including all the relevant judicial decisions of the Ecuadorian authorities, occurred prior to 5 May 2013 and that the information contained in the communication does not point to the occurrence of any events that have continued subsequent to the entry into force of the Optional Protocol that could, in themselves, be considered to constitute a violation of article 9 of the Covenant.¹⁴ Consequently, the Committee considers that it is precluded ratione temporis from examining the authors’ claims in relation to article 9 of the Covenant and that the claims are inadmissible under article 3 (2) (b) of the Optional Protocol. The Committee notes that the other claims contained in the communication are incidental to and inseparable from the claims of a violation of article 9 of the Covenant. The Committee therefore considers that these claims, too, are inadmissible under article 3 (2) (b) of the Optional Protocol.

14. See communication No. 6/2015, V.T.F. and A.F.L. v. Spain, decision of inadmissibility of 24 September 2015, para. 4.3 and communication No. 13/2016, E.C.P. and others v. Spain, decision of inadmissibility of 20 June 2016, para. 4.3. ↩

Taking into consideration all the information provided, the Committee, acting pursuant to the Optional Protocol to the Covenant, is of the view that the communication is inadmissible.

The Committee therefore decides: (a) That the communication is inadmissible under article 3 (2) (b) of the Optional Protocol; (b) That, pursuant to article 9 (1) of the Optional Protocol, this decision shall be transmitted to the State party and to the authors of the communication.