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BYLAWS OF THE COURT OF JUSTICE OF THE CARTAGENA AGREEMENT

DECISION 184

 

THE COMMISSION OF THE CARTAGENA AGREEMENT:

HAVING SEEN Article 14 of the Treaty creating the Court of Justice of the Cartagena Agreement and Proposal 141 of the Board and having found that the Treaty had been ratified by all Member Countries and is therefore in force,

DECIDES to approve the following

 

BYLAWS OF THE COURT OF JUSTICE OF THE CARTAGENA AGREEMENT

Preliminary Provision

Article 1.- Definitions used in the provisions of these Bylaws:

Agreement: The Cartagena Agreement

Treaty: The Treaty creating the Court of Justice of the Cartagena Agreement.

Commission, Board, Court: The Commission, the Board and the Court of Justice of the Cartagena Agreement.

Member Country, Member Countries: a Member Country or Member Countries of the Cartagena Agreement.

Internal Rules: The Internal Rules of the Court of Justice of the Cartagena Agreement.

TITLE ONE

THE COURT

General Provision

Article 2.- The Court - the jurisdictional body instituted to ensure respect for the law in the application and interpretation of the legal system of the Agreement Ė is governed by the Treaty, these Bylaws and by the Internal Rules.

CHAPTER I

MAGISTRATES AND DEPUTIES

Article 3.-†††††† Magistrates and deputies are appointed for fixed periods counted from the day after the termination of their predecessorsí term in office.

Article 4.- ††††† On the first day of their term or no more than thirty days later, appointed magistrates shall take the oath of office at a Court session held in the Court premises, swearing to carry out their job conscientiously and completely impartially, to keep the Court discussions secret and to fulfill all the duties inherent to their role.

The Court President shall then declare the magistrate in office and he shall start exercising his duties immediately.

Minutes of this session shall be signed by the President, the respective Magistrate and the Secretary.

Article 5.- ††††† At the request of whom it may concern and at a plenary session, the Court may lift the immunity granted to magistrates by virtue of Article 13 of the Treaty. To this effect and after studying the background information, the Court shall issue a reasoned resolution.

Should the magistrate be submitted to a trial once the immunity has been lifted, the trial must take place before the jurisdiction competent to judge the highest ranking magistrates of the Member Country in which the matter is being processed.

In the event of a verdict of guilty in a penal action, the Court shall determine the vacancy of the post.

Article 6.- ††††† As far as the effects of Article 11 of the Treaty are concerned, the following are serious faults if committed by magistrates:

a) Notorious bad behavior

b) Any activity that is incompatible with the nature of the post

c) Repeated failure to fulfil the duties inherent to the role

d) Involvement in professional activities, raid or otherwise, except those of a teaching or academic nature; and

e) Breach of the oath referred to in Article 4.

Item d) of this Article does not apply to deputies who occasionally exercise a judiciary role.

Article 7.-When a magistrate incurs in any of the faults contemplated in the previous article while carrying out his duties, the Government of a Member Country may request his removal, through the Government of Ecuador.

As the host country, the Government of Ecuador shall inform the Governments of the other Member Countries of the reasoned request and shall call a meeting of the Plenipotentiary representatives referred to in Article 11 of the Treaty, which must take place no more than thirty days alter.

Once the Plenipotentiary representatives are assembled, they shall hear the accused magistrate and unanimously decide whether there are grounds for his removal.

Article 8 .- First and second deputies, in order, shall be summoned by the President to replace the magistrate in the following cases:

a) When the appointed magistrate, without sufficient justification according to the Courtís plenary session, fails to attend the swearing in ceremony within thirty days after the start of his term in office, for the rest of that term.

b) In the event of the magistrateís death, resignation, removal or vacancy of the post, for the remainder of the respective term.

c) During the entire time that the magistrate is on leave.

d) In cases of an admitted impediment or challenge to the judge and only with respect to the hearing and judgement of the corresponding proceeding.

The deputy thus summoned shall take the oath of office referred to in Article 4 herein above and shall immediately begin exercising his duties.

Article 9.- Magistrates and deputies shall be appointed at least two months before the end of their predecessorsí term in office.

To this effect, the Government of the host country shall request the submission of the respective lists and shall call a meeting of the plenipotentiary representatives at least three months before the end of that term.

 

CHAPTER II

THE PRESIDENT

Article 10.- †† The Court shall have a President who shall remain in office for one year. This role shall be played successively by each of the magistrates, who shall establish the order by agreement or by casting lots.

Article 11.- The President shall represent the Court, direct its work and services, call meetings and preside over sessions and hearings.

In addition to the powers granted in these Bylaws and in the Internal Rules, the President shall carry out the role and duties inherent to his authority.

 

CHAPTER III

THE SECRETARY

Article 12.- †† The Court shall appoint its Secretary at a plenary session.

Article 13.- †† The Secretary must be a native of one of the Member Countries, of good moral standing and a highly competent jurist.

Article 14.- †† The Secretary shall be appointed for a period of five years and cannot be re-elected.

Article 15.- †† When assuming the post, the Secretary shall take the oath of office envisaged in Article 4 herein above.

Article 16.- †† The following are the Secretaryís duties:

a) Under the Presidentís authority, manage the Courtís Secretariat.

b) In accordance with the Presidentís instructions, deal with the Courtís legal office, receive, process and safeguard all the documents, case records and notifications required by these Bylaws and organize and keep the general registry of matters submitted to the Court.

c) Authenticate and issue certificates and copies as well as testimonies concerning Court affairs, in accordance with the instructions and under the authority of the President.

d) Fulfill all other obligations and exercise any other authority mentioned in these Bylaws and in the Internal Rules.

Article 17.-† Should the Secretary incur in any of the faults referred to in Article 6 herein above, the Court shall study the case, listen to the affected party and adopt a resolution at a plenary session.

Article 18.- In the event of a definitive absence, vacancy or abandonment of the post, the Court shall appoint the new Secretary for a period of five years.

In the case of a temporary absence of the Secretary, the President shall appoint the Acting Secretary.

 

CHAPTER IV

ORGANIZATION, STAFF AND ADMINISTRATION

Article 19.-†The Court shall establish the organic structure of the Secretariat and the Administration at a plenary session.

Article 20.- When hiring essential members of staff, the Court shall only bear in mind the suitability, competence and honesty of the candidates, making every effort to obtain as wide a geographic representation of the sub-region as possible, providing that is not incompatible with the criteria mentioned above.

Article 21.- †† The Court shall set forth in the Internal Rules the selection criteria, hiring methods, categories and periods as well as the rights and obligations of its officials and employees.

Article 22.- †† Before assuming their posts, officials shall take the oath of office before the Court President, in the presence of the Secretary, swearing to keep court matters secret and to fulfill the duties entrusted to them by the Court with absolute loyalty, impartiality, discretion and rectitude.

Article 23.-The Court shall draw up the draft annual budget and the President shall submit it to the Commission at least thirty days before the last Period of Ordinary Sessions of each year.

 

CHAPTER V

OPERATION

Article 24.-The Court shall operate permanently in its site in the city of Quito.

Article 25.-On the dates and at the times established in the Internal Rules, the Court shall meet in a plenary session with a quorum of five magistrates, adopting its resolutions with the vote of approval of at least three of them.

Article 26.-The Court shall pass judgement at a plenary session with the exception of the case specified in article 63 of this Bylaws. The Court shall also hear and resolve at a plenary session when specifically stipulated in these Bylaws. 1

Article 27.-The Court may meet with a quorum of three magistrates to discuss matters for which these Bylaws do not demand a plenary session.

In that case, it shall adopt its resolutions with the vote of approval of at least three magistrates if there are four or five voters and at least two votes if there are three voters.

Article 28.-††† The Secretary shall attend the sessions, unless otherwise stated by the Court or in these Bylaws.

When the Secretary is not present at a Court meeting, the magistrate appointed as Acting Secretary shall take the corresponding minutes, if relevant, which shall be signed by the President and such magistrate.

Article 29.-††† The Court shall hold secret discussions and the matters discussed shall also be kept secret.

Article 30.-††† During the final deliberation of the proceeding, the magistrates shall express their reasoned opinion.

The Courtís judgements must be signed by the President, the other magistrates and the Secretary and dissenting votes or opinions shall not be expressed therein.

Once judgement has been passed, the Secretary shall inform the Board so that it can be published in the Official Gazette of the Agreement.

Article 31.-††† The Court, at a plenary session and by means of a resolution published in the Official Gazette of the Agreement, shall determine the system and period of the annual judicial vacation, which cannot exceed thirty days.

1 Modified by Decision 394.

CHAPTER VI

REPRESENTATIVES, ATTORNEYS, ADVISORS

Article 32.-The parties shall perform judicial acts before the Court either themselves or through a representative or proxy to whom powers were granted in accordance with the legislation of the corresponding Member Country; if that person is not a lawyer, he must be assisted by an attorney duly authorized to exercise his profession in a Member Country. The parties may have as many advisors as they consider necessary.

Article 33.-Representatives, attorneys and advisors in a proceeding shall enjoy all the necessary guarantees and facilities to carry out their activities in the Court with total freedom.

For its part and as far as the representatives, attorneys and advisors are concerned, the Court shall establish the necessary disciplinary powers for the normal development of the proceeding.

 

TITLE TWO

PROCEDURES

Article 34.-††† The purpose of the procedures envisaged in these Bylaws is to enforce rights, safeguard the spirit of integration, maintain the equality of the parties and duly guarantee the proceedings.

CHAPTER I

ACTIONS OF NULLIFICATION OR NONCOMPLIANCE

Section One: The Claim

Article 35.-††† Any proceeding concerning actions of nullification or noncompliance envisaged in the Treaty, shall be filed by means of a claim addressed to the Court President and signed by the party and his attorney, the original and three copies of which must be submitted to the Court Secretary.

Article 36.-††† The claim shall contain the following:

a) The names and addresses of both the claimant and the defendant.

b) The object of the claim

c) The list of facts and legal grounds

d) The offering of evidence, if relevant.

For the purpose of the proceeding, the claim shall also mention the claimantís address in the Courtís site and the name of the person authorized to receive the notifications.

Should the defendant have to perform judicial acts through a representative or proxy, the latter must bear a legal document duly authorizing him to do so.

Article 37.-††† The following must be attached to the claim for nullification:

a) If the claimant is a Member Country, the Boardís certification that the impugned Decision was not approved with the affirmative vote of that country.

b) If the claimant is a company, an authentic copy of its bylaws and the power granted to its attorney to that end, by a qualified representative.

c) If the claimant is an individual or a company, evidence that the impugned Decision or Resolution applies to them or causes them harm.

A copy of the impugned Decision or Resolution.

Article 38.-††† The following must be attached to the claim of noncompliance:

a) A certified copy of the Boardí2 reasoned opinion, or

b) Proof that three months had transpired without the Board passing opinion.

Article 39.-††† Among other things, the claim for noncompliance can make reference to rules that are incompatible with the legal system, the failure to issue rules to comply with the legal system or any action or behavior that is inconsistent with the legal system, despite the provisions adopted to comply with it.

Article 40.-††† The Secretary shall stamp the original claim and the copies and certify the date they were submitted. One copy shall be returned to the claimant.

Article 41.- †† Should the claim fail to meet one of the requirements stipulated in Articles 36, 37 or 38 herein above, within five days after receiving it the Court shall establish a reasonable period for the claimant to rectify the claim or submit relevant documents. Should that period expire without the claimant rectifying the claim or submitting the documents, the Court shall return the claim.

Article 42.-††† Once admitted, the defendant shall be notified of the claim.

Section Two:

Defendantís Plea

Article 43.-††† Thirty days after the date of notification of the claim, the defendant shall contest it.

The defendantís plea must contain the following:

a) Name and address of the defendant

b) List of facts and legal grounds

c) The offering of evidence, if relevant.

Paragraphs two and three of Article 36 are applicable to the defendantís plea.

Article 44.-††† Should the defendant, once duly notified of the claim, fail to contest it within the period envisaged in the previous article, it shall be presumed that he has opposed the claim in fact and by right. The Court shall certify this fact in the case file.

Section Three:

Evidence

 Article 45.-††† Within a period of eight days following the defendantís plea, the Court shall determine the need for evidence, either at its own initiative or at the request of one of the parties.

Should the Court decide that evidence is not required, the President shall establish the date and time of the hearing and make arrangements to summon the parties.

If the Court decides that evidence is required, it shall indicate the facts and the period in which proof must be provided. The parties will be duly notified of the decision and given the corresponding instructions.

Article 46.-††† Evidence may include:

a) The declaration of the parties

b) Reports and documents

c) Testimony

d) Expertsí reports

e) Visual inspection.

The Court shall determine how the parties shall cover the costs arising from submitting evidence.

The Court shall appraise the evidence as a whole, in accordance with critical reasonableness rules.

Article 47.-††† Once the period for submitting evidence expires, the President shall establish the date and time of the hearing and make arrangements to summon the parties.

Section Four:

The Hearing

 Article 48.-††† Hearings shall be public, unless for serious reasons the Court decides to hold them privately, either at its own initiative or at the request of one of the parties.

The President shall open and conduct the debates.

Non-attendance by one or both parties shall not invalidate the proceeding.

Article 49.-††† The Court shall try the cases submitted in the same order as the hearing. Should several cases require a hearing simultaneously, the order shall be established according to the date the claim was submitted.

In consideration of special cases and by means of a reasoned resolution, the Court may grant priority for the trial of a case.

Article 50.-††† The hearing shall begin with the Secretaryís report on the case, which shall be limited to an objective summary of same.

Article 51.- †† Under the authority and instructions of the President, the claimant and the defendant, in order, may intervene and answer have the right to a reply and counterreply.

Article 52.-††† Once the debate is over, the parties may submit their conclusions in writing, either at the hearing itself or within the next three days.

Article 53.-††† When as a result of the intervention of the parties the Court considers it necessary to obtain proof or expand the evidence, it may decide to suspend the hearing only once, establish a reasonable term for the submission of evidence and determine the date and time for re-opening the hearing.

Article 54.-††† The Secretary shall take minutes of each hearing, which shall be signed by the President and the Secretary.

Section Five:

The Judgement

Article 55.-††† The Court shall pass judgement at a plenary session within fifteen days after the closing of the hearing.

Article 56.-††† The judgement shall contain the following:

a) The statement that it has been issued by the Court

b) The date the judgement was passed

c) The names of the parties

d) The written proceeding of the facts

e) The summary of the conclusions of both parties

f) Paragraphs setting forth the legal grounds on which the judgement was based

g) The verdict

If the judgement states the total or partial invalidity of a Decision or Resolution, it must also state its effects over time.

The judgement shall include the Courtís decision regarding the payment or exoneration of the legal costs.

In the judgement of noncompliance, the Court shall issue instructions regarding the steps that the respective Member Country must take to execute it.

Article 57.- †† The judgement shall be read at a public hearing once the parties have been summoned. This act shall be recorded.

The judgement, signed by the President, the other magistrates and the Secretary, shall be sealed and deposited in the Secretariat.

Article 58.-††† The judgement shall become effective on the day after it was read at the hearing.

 

Section Six:

Amendment, Expansion or Clarification of the Judgement

Article 59.- †† Either at its own initiative or at the request of one of the parties submitted within a period of five days after the reading, the Court may amend or expand the judgement.

The amendment shall proceed if the judgement contained obvious written mistakes, miscalculations or evident inaccuracies; also, if judgement was passed on a matter not brought up in the claim. The expansion shall proceed if any of the conflictive points were not resolved.

The request for amendment or expansion shall be reported to the other party so that they can consider the suitability of completing the formalities.

At a plenary session held within ten days after the term referred to in first paragraph has expired, the Court shall adopt a resolution concerning the amendment or expansion of the judgement, notify the parties and attach the resolution to the judgement. In that case, the judgement will be executed with the last notification to the parties.

Article 60.-††† Within a period of ten days after the reading, one of the parties, a Member Country, the Commission or the Board may request the clarification of certain points in the judgement that may be considered ambiguous.

Both parties shall be notified of the request for clarification so that they can consider the suitability of completing the formalities.

Paragraph four of the previous article is applicable to the clarification.

 

CHAPTER II

PRE-JUDICIAL INTERPRETATION

Article 61.-††† The request for interpretation that national judges or courts address to the Court in accordance with Article 29 of the Treaty, shall contain the following:

a) The name and level of jurisdiction of the national judge or court

b) The list of rules in the Agreementís legal system that require interpretation

c) Identification of the cause giving rise to the application and a signed report of the facts that the petitioner considers relevant for interpretation purposes.

d) The address and the place in which the judge or court shall receive the corresponding notification.

Article 62.-††† Once the request has been received, the Secretary shall stamp it, record the submission date and remit it to the President for consideration by the Court.

Article 63.-††† Within a period of thirty days after receiving the application, the Court may pass judgement with the vote of four magistrates, if the fifth magistrate is justifiably impeded to participate in the final session convened to approve the judgement. 1

Article 64.-††† The Courtís judgement, signed by the President, the other magistrates and the Secretary, shall be sealed and deposited in the Secretariat.

The national judge or court shall be notified of the judgement by means of a sealed and certified copy.

1 Modified by Decision 394.

CHAPTER III

REVIEW OF JUDGEMENTS

Article 65.-Only judgement of noncompliance suits can be reviewed, in accordance with Article 26 of the Treaty. The claim shall correspond to the parties in the previous proceeding.

Article 66.-††† The claim for a review must be submitted within two months after the day the claimant was informed of the fact on which it is based and, in any case, within a year from the date of the judgment of noncompliance.

Article 67.-††† The claim for a review must contain the following, in applicable, in addition to the provisions set forth in Article 36:

a) A statement of the judgement impugned

b) A statement of the points on which the impugned judgement is based

c) A list of the facts on which the claim is based

d) Justification of evidence proving the existence of such facts and the moment they were discovered or known.

Article 68.-Once the claim for a review is admitted, the procedure shall continue in accordance with these Bylaws and the final judgement shall be passed at a plenary session.

CHAPTER IV

PENALTIES DUE FOR NONCOMPLIANCE OF A JUDGEMENT

Article 69.-††† Should the respective Member Country fail to take the necessary steps to execute a judgement of noncompliance within the period established in the first paragraph of Article 25 of the Treaty, at the end of that period and for the effects envisaged in paragraph two therein, the Court shall request the opinion of the Board. The latter shall then issue its statement within thirty days after receiving the request.

Article 70.-††† After receiving the opinion of the Board and if relevant, the Court shall establish the date and time of a hearing.

Article 71.-††† Ten days after receiving the opinion of the Board or five days after the closing of the hearing, the Court shall hold a plenary session to discuss and establish the limits within which Member Countries may totally or partially restrict or suspend the advantages of the Agreement that benefit the Member Country at fault.

The Court, immediately and through the Board, shall inform Member Countries of its decision.

No instrument of any kind needs to be issued by the Commission or the Board in order to apply the measures of restriction or suspension mentioned in the first paragraph of this article.

CHAPTER V

IMPEDIMENT OF AND EXCEPTION TO A JUDGE

Article 72.-††† Impediment ofor exception to a judge may occur during any stage of the procedure.

Article 73.-††† The following relationships between a judge and the parties or their representatives or proxies are causes for impediment or exception to a judge:

a) Blood relations four times removed of the magistrate or his spouse, or kinship by marriage twice removed

b) Interest of the magistrate or his spouse in the matter submitted to the Court or any other matter with a similar purpose

c) Previous involvement in the matter being tried

d) Close friendship or obvious antagonism of the magistrate or his spouse

Article 74.- Without waiting to be challenged, a magistrate who realizes the existence of one of the causes for exception mentioned in the previous paragraph is under the obligation to report it to the Court.

Once the statement is received, the President shall suspend the case until the Court resolves the incident.

Article 75.-††† The exception shall be reported to the Court in writing, stating the reasons on which the objection is based.

Once the exception has been suggested, the President shall suspend the case until the Court reaches a decision regarding the incident and, if relevant, shall request evidence, which should be received within eight days.

Once the eight days are up, the Court shall pass a final judgement.

Article 76.-††† Neither the impediment nor the exception will have any effect on previous decisions of the proceeding.

TITLE THREE

FINAL AND TRANSITORY PROVISIONS

CHAPTER I

FINAL PROVISIONS

Article 77.-††† At their own initiative or at the request of the Court, at any stage of the procedure and before judgement is passed, Member Countries, the Commission or the Board, whether or not they are parties to the suit, may provide whatever information or legal arguments are considered necessary for a better solution to the case.

Article 78.-††† The periods of the procedure established herein above shall be calculated in calendar or continuous days, excluding the starting date.

Should the period end on a non-working day, the expiry of the term shall be postponed until the end of the next working day.

Based on distance, the terms and the non-working days referred to in the previous paragraph, shall be established by the Court at a plenary session, by means of a resolution to be published in the Official Gazette of the Agreement.

Article 79.-††† The Court, at a plenary session and by means of a resolution to be published in the Official Gazette of the Agreement, shall establish the system for the notifications envisaged in Title Two of these Bylaws.

Article 80.-††† Individuals or companies whose rights are affected by the noncompliance of a Member Country, shall be entitled to turn to that countryís competent courts in accordance with its municipal laws, claiming the fulfillment of Article 5 of the Treaty.

CHAPTER II

TRANSITORY PROVISIONS

 Article 81.- The periods of magistrates appointed in accordance with the second and third Transitory Provisions of the Treaty, shall be counted from January 2, nineteen hundred and eighty-four, on which date they shall take the oath of office before the Minister of Foreign Affairs of the host country, who shall initiate them in their roles and establish the Court on behalf of Member Countries.

Article 82.-††† At the earliest opportunity, the Court shall enter into the necessary agreements with Member Countries, acknowledging the facilities required by the magistratesí deputies, by the partiesí representatives or proxies, attorneys and advisors and by the people involved in rule procedures, so that they can act with total independence.

Article 83.-††† Before January 31, nineteen hundred and eighty-four, Member Countries shall appoint the national authorities who will represent them in the actions and proceedings envisaged in the Treaty and in these Bylaws, duly informing the Court.

Issued in Quito on August 19, nineteen hundred and eighty-three.


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