Case 0371-04-RA

Tribunal Constitucional, Caso No. 0371-04-RA, publicado en el Suplemento al Registro Oficial No. 274, 19 de mayo de 2006.
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This case was originally brought before the First Chamber of the Contentious Administrative Tribunal by a group of organizations of the Amazon Basin in Ecuador who were challenging the fact that Colombia was fumigating with glyphosate (within their plan to eradicate coca) within a 10-km strip from the border of Colombia and Ecuador. The organizations claimed that the close proximity to Ecuador of such fumigations allowed the harmful chemicals to drift onto Ecuadorian land, thereby causing the residents to suffer health affectations, their livestock to die and general harm to the environment.

The lower-level court, the First Chamber of the Contentious Administrative Tribunal had accepted the request for the writ and issued a resolution on March 30, 2004 ordering an “immediate adoption of measures towards remedying the harm caused and preventing it from being continued, and with this purpose, the sued Ministries and competent bodies of the Executive Function, in their respective scopes of action, shall enforce the necessary measures towards redress, as the actions that they have taken heretofore have not been able to definitively solve, until today,  the extremely serious problems that are claimed.”

The Ministers of Agriculture and Livestock, Ministry of Public Health, Ministry of Foreign Relations and State Attorney General, challenge the resolution via an appeal filed before the Constitutional Tribunal, which was granted by order dated April 26, 2004.

The Court enumerated the requirements under Article 95 of the Constitution and the specific framework prescribed in the Constitutional Control Act for a constitutional writ of protection of fundamental rights: “a) an unlawful act exists, b) that violates a subjective constitutional right, c) threatens or causes serious and imminent danger to the detriment of the petitioner.”

The Court determined that the harms caused by the chemicals used in fumigations had been widely proven. It noted that Congress had ordered the President of Ecuador to reach an agreement with the President of Colombia so that the fumigations would not be carried out within the 10-km strip of land and necessary programs would be developed at border areas that were affected by fumigations; the Court also noted that Congress had ordered the Ecuadorian President to demand compensation from the Colombian President for Ecuadorians who had suffered harm. The Court determined that despite the diplomatic effects of the Government of Ecuador, such efforts had not been able to preserve and protect the environment, and protect the rights of the Ecuadorian people.

The Court decided to confirm the resolution of the lower tribunal which had textually ordered the: “immediate adoption of meetings towards remedying the harm caused and preventing it from being continued, and with this purpose, the sued Ministries and competent bodies of the Executive Function, in their respective scopes of action, shall enforce the necessary measures towards redress, as the actions that they have taken heretofore have not been able to definitively solve, until today, the extremely serious problems that are claimed”. As a result, The Court granted the writ for protection of fundamental rights.

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