The amendment to the General Organic Code of Processes (COGEP), which entered into force on June 26, 2019, modified article 64(4) substantially modifying the interruption of the statute of limitations. Thus, before the reform, COGEP established that: "The effects of citations are... 4. Interruption the statute of limitations." While after the amendment, it establishes that: "The effects of citations are... 4. Interruption of the statute limitations. If the lawsuit is summoned within six months of being filed, the interruption of the statute of limitations will be rolled back to the date in which the lawsuit was filed."1 Due to the amendment in reference, ¿is the right to legal certainty compromised?
Historically, the regulations governing civil procedures in Ecuador contemplated that the statute of limitations was interrupted only through citation. Since the first Civil Code enacted in 1869, until the last amendment to the COGEP entered into force, the citation of the lawsuit had been a concrete and verifiable date, that interrupted the statute of limitations. With the amendment, the interruption is rolled back to the date the lawsuit was filed, which is an unknown fact until the citation is made-, solely if the citation occurs within 6 months after the filing of the lawsuit. Keep in mind that the citation of the lawsuit is a fundamental factor, since only once it is achieved the litigation between the parties in conflict is locked and any legal terms begin to apply.
The Civil Code defines the statute of limitations as a way of acquiring goods or extinguishing rights for not having exercising those rights within the period determined by law2. Thus, a legal proceeding may be initiated within the time frame established in the law. If there were no statute of limitations, the right to legal certainty would be violated. It is the responsibility of citizens to initiate proceedings in due time and form or, to plead statute of limitation when having been sued and summoned once the legal term is exceeded.
Legal certainty implies, among other things, that the parties shall know the applicable rules when a process starts. The Constitutional Court has determined that "...the right to legal certainty is understood as the certainty in the application of the law that derives from the obligation of public authorities to respect the Constitution as a supreme law, and the rest of the legal system." This right to know with certainty the enforcement of the existing norms in the legal system is violated the amendment since, rolling back the date for interrupting the statute of limitation to the moment the lawsuit was filed exclusively if the citation took place within six months, causes the defendant uncertainty.
For example, before the amendment, in a moral damage proceeding, were the statute of limitations ends 4 years after the perpetration of the act, the law allowed the defendant to know the legal framework for his defense. That is, the plaintiff was certain of the time frame stated in the law to exercise his right and initiate a proceeding. The amendment to the COGEP allows the interruption of the statute of limitation to take place not on the date the lawsuit is summoned, but on the date on which it was filed, undermining the defendant´s right to legal certainty.
To a greater extent, in the previous example, before the amendment, if the plaintiff filed a lawsuit for moral damage on the last day, that is, 3 years and 365 days, the statute of limitation would have ended. While with the amendment, if the lawsuit is filed on that same day, the statute of limitation would not have ended as long as the defendant is summoned within the following 6 months. That is to say, in the proceeding for moral damage, the plaintiff would have 4 years and six months for the lawsuit to be summoned and still rightfully exercise the respective proceeding, while before the amendment there were exactly 4 years to summon the defendant.
With the amendment of the article 64(4) of the COGEP, the legislator has allowed the lawsuit citation to interrupt the statute of limitation of the proceeding as long as the defendant is summoned within the following 6 months after the lawsuit is filed, which, in our criterion violates the constitutional right of the defendants for legal certainty.
1 COGEP, art. 64: "Art. 64.- Effects. The effects of the citation are: [...]
4. Interrupt the prescription. If the lawsuit is appealed within six months of filing, the interruption of the prescription will be rolled back to the date of filing of the lawsuit. "
2 Art. 2392.- Prescription is a way of acquiring the things of others, or of extinguishing the actions and rights of others, for having possessed the things, or not having exercised said actions and rights, for a certain time, and concurring with the other legal requirements. An action or right is said to prescribe when it is extinguished by the prescription.
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