Written and Revised by Sara Chaca, Attorney – Abogada
January 24th, 2020
As more and more foreigners make their moves to Ecuador and go about their daily lives in their new country (including ones who just invest in real estate in Ecuador or what have you but don’t physically move here or at least not immediately so), the issue of legal matters in Ecuador do at times or eventuality become something that any Expat needs to deal with, ranging from the more general reasons of logistics, processes or permits, up through the more aggravating causes such as fraud, malpractice or warring parties. And so, this article shall advise how an Ecuadorian lawsuit generally transpires, from the initial filing of it with the applicable or local Ecuadorian Court and the litigation matters that occur within or because of it, to any relevant appeal of the Ecuadorian Judge’s sentence issued in the case to the Ecuadorian Appellate Court, to the maximum legally allowed distance that the case can go which is to the Supreme Court of Ecuador (also known as the Constitutional Court of Ecuador).
Regardless of the type legal case that one has, needs or wants to file, naturally they must do so in the Ecuadorian Court having clear and proper jurisdiction over the matter, which is generally the city, place or town where the claimed offense occurred. That is to say, for example, if your case involves a matter that happened in Guayaquil, Ecuador, or is where the person, company or organization committed the “tort” or moral damage (i.e. a wrongful act or infringement of a right consisting of a physical and/or mental affliction) against you and/or your interests. Thereon, depending on the type of legal case in Ecuador that is necessitated by the situation, a series of hearings, consisting of the reports and testimonies of requested experts, translators and witnesses (generally facilitated and/or paid for by the filing party in the Ecuadorian legal case, or by any party who files any countersuit/counterclaim against the filer of the original lawsuit) can be or become precedent to the Ecuador Judge’s decision and thus the case’s ultimate resolution – note that just as in the US and in many other democratic countries, no one can be forced to testify against themselves (i.e. the “Right Against Self-incrimination” in Ecuador is quite similar in function, permission and style to that of the Fifth [5th] Amendment in the US). The Ecuador legal case can take only weeks for a relatively simple matter involving minimal friction between the parties, to months for a moderately debated scenario, and up to years for a highly disputed situation, all additionally depending on the subject matter involved, the type and financial stability/wherewithal of the parties serving as the players in the Ecuadorian litigation, and each of their respective locations to boot (including whether a settlement of the legal matter is agreeable or desirable to the parties at issue). FYI, for those interested in learning about the merits and ways of approaching, dealing with and/or suing another for being or having been defrauded or subjected to fraud in Ecuador as a foreigner (in comparison to say, a lawsuit in Ecuador for things such as Divorce, Child Support, etc., how I already previously wrote and published on “CuencaHighLife” about those specific type general cases and Ecuadorian lawsuits, as shown at this link: https://cuencahighlife.com/divorce-in-ecuador-ecuadorian-prenuptial-agreements/), here as follows is a link to a recent (additional) article that I wrote and published on “CuencaHighLife” appertaining to the theme of Ecuadorian fraud cases in Ecuador: https://cuencahighlife.com/help-i-got-defrauded-in-ecuador-lost-my-shirt/. Moreover, an Ecuadorian Legal Opinion Letter can also be issued by an Ecuadorian Attorney (whether for presentation/submission to a Judge or otherwise) for matters related to any area(s) of Ecuadorian Law, such as for example, US Legal Cases, where say, a US Citizenship and Immigration Services (USCIS) matter has gone to Court in the US and an Ecuadorian Citizen or Resident of Ecuador (or other type foreigner status at that) still has ties here or pending/unresolved issues related to a prior birth, marriage, divorce or death that occurred in Ecuador which effects their Legal Case in the US – just recently in fact this exact type scenario arose and I was asked by a US Attorney to as an Ecuadorian Attorney prepare an Ecuador Legal Opinion Letter so as to suit same..
Thereafter the original legal case, the losing side as well as the winning side have the constitutionally guaranteed option of within several days following the resolution of the case, to appeal the Judge’s decision to a higher court (whether for the specific reason of losing and/or for the amount or non-monetary decision of the Ecuadorian legal judgment that was granted in the case), that again as first referenced above, is the Ecuadorian Appeals Court, which like its counterpart Courts in the US and other democratic countries, generally does not involve or permit the analysis or inclusion of new evidence, besides reviewing the past/prior evidence that was already submitted in the original case filing with the first (lower) court, according to what transpired in the case history thereof (i.e. errors made by the original Judge or a misapplication of Ecuadorian law with regards to the facts and circumstances of the case). This particular appeals process can take from several months to more than a year, similar to how is/was with the original legal case in the lower court, depending on the type and financial stability/wherewithal of the parties serving as the players in the litigation, and each of their respective locations (including again whether a settlement of the Ecuadorian legal matter is agreeable or desirable to the parties at issue).
Finally, in the event that a case which began in the original Ecuador Court goes/went to the Ecuadorian Appellate Court, it can at the filing and subsequent non-guaranteed acceptance of the Ecuadorian Supreme Court thereafter (i.e. only around 20-30% of all cases filed with it are actually in the end agreed to be heard and litigated by it), and once more as stated above with respect to both other type Courts antecedent to it, a case in the Supreme Court of Ecuador can also take from several months to more than a year, again depending on the type and financial stability/wherewithal of the parties serving as the players in the litigation, and each of their respective locations.
Noting the above multi-faceted as well as variable aspects of the Ecuadorian Court structure and Legal System (not the least of which being the primary use of “Civil Law” vs. the more typical “Common” Law how exists in the US), it’s best that you be well aware ahead of time per the possibilities of the “who, what, where, when, why and how” (plus “if”..) of your litigation matter and the winding road that it may travel, as it meanders along the path set forth by “Lady Justice” with her faithful blindfold, balance and sword.
Sara Chaca (Attorney – Abogada) is a seasoned Ecuadorian Lawyer, who principally serves Expats in making their moves to Ecuador, as well as for any legal issues that arise or become actionable for her Expat clients to undertake in their new lives here in her beautiful country. Sara resides in Cuenca with her family, which consists of her American husband and 2 daughters (as well as her parents and siblings), and when not working, she enjoys spending time with her family in Cuenca’s majestic Cajas Mountains and local parks & fairs of Cuenca, plus visiting the coast as well as the many gem towns of Ecuador. Sara’s personal email address is firstname.lastname@example.org and her law office’s fully informative website is www.ecuadorvisas.com for you to visit at any time of day or night – plus, her personal Ecuadorian cell phone number is 099-296-2065 and her Toll Free “800” phone number for US & Canadian callers is 1-(800)-655-1581. Sara has a less than 24 hour first response policy, in that if you email or call her, she WILL return your first email or first phone call in less than 24 hours (more typically in closer to 24 minutes). Most importantly, all first time consultations with Expats for any type Visa or Legal matter(s) are always FREE OF CHARGE.