Kelvin Vicente Torres Cueva v. Ecuador, Case 11.991, Report No. 100/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 545 (2000).
KELVIN VICENTE TORRES CUEVA
October 5, 2000
On December 10, 1997, Kelvin Vicente Torres Cueva (hereinafter
the petitioner) submitted a petition to the Inter-American
Commission on Human Rights (hereinafter the Commission or
the IACHR) against the Republic of Ecuador (hereinafter the
State) alleging violations of the following rights protected by
the American Convention on Human Rights (hereinafter the American
Convention or the Convention):
the right to humane treatment (Article 5); the right to personal
liberty (Article 7); the right to a fair trial (Article 8); the right
to equality before the law (Article 24); and the right to judicial protection
(Article 25), all in breach of the obligations assumed under Article 1(1),
to the detriment of Mr. Torres.
The parties reached a friendly settlement in this case on June
11, 1999. This report contains
a brief presentation of the facts and the text of the agreement, in keeping
with Article 49 of the Convention.
On June 21, 1992, the petitioner was detained at 12:00 noon by
a group of 20 hooded and heavily-armed persons, who, beating him, forced
him into a vehicle. At no
time was he shown an arrest warrant by a judge with jurisdiction, nor
was he informed of the motives for his detention, nor did they identify
themselves as police. He
was deprived of his liberty, mistreated, and subjected to prolonged incommunicado
detention. This detention occurred in the context of Operation Cyclone
(Operativo Ciclón) of the National Police, to fight
drug trafficking, according to the petitioner, merely for being a relative
of Jorge Hugo Reyes Torres, the alleged head of a group of drug traffickers.
Later, the petitioner was taken to the offices of the former SIC,
now Quito Regiment No. 2, where he was placed in an underground cell and
held incommunicado for 33 days.
During this time he was tortured by being beaten in the stomach
and about the ears, and with electric shock, to get him to memorize a
statement that he was to give afterwards to the representative of the
After 33 days of incommunicado detention during which time he was
unable to see his family or an attorney, the petitioner was taken to a
yard along with several detainees, where some 50 hooded and heavily armed
police pointed their weapons at him and the other detainees.
They inserted the weapons in their mouths and pulled the trigger,
but they were not loaded. This
was part of an effort to get them to sign self-incriminating statements.
Afterwards, he was blindfolded and taken to Pavilion A
of the Penal García Moreno prison, where he was allowed to receive visitors.
He was held incommunicado for a total of 38 days.
The police report was made known to the police chief who accused
him, ordering pre-trial detention in trials for illicit enrichment and
conversion of assets, and issued arrest warrants on July 30 and 31, 1992,
Later, the judges disqualified themselves from continuing the investigative
phase, when it was shown that one of the accused was subject to special
jurisdiction, and they remitted the proceedings to the Office of the President
of the Superior Court of Quito, which had jurisdiction, and criminal proceedings
were begun again during September and November 1992, affirming the pre-trial
detention order issued against the petitioner in the criminal proceedings,
with issuance of the respective imprisonment orders on December 1, 1992. According to the petitioner, this showed that he was illegally
arrested, as there was no arrest warrant issued by a judge, and he remained
in that condition until July 31, 1992, when the chief of police issued
the first arrest warrant.
In 1996, in the trials for conversion of assets and illicit enrichment,
the President of the Superior Court, when ruling, provisionally dismissed
the charges against the petitioner and ordered his release.
This ruling could not be carried out, as the Law on Narcotic and
Psychotropic Substances of Ecuador provides that such an order must necessarily
be subject to consultation with the next highest body, and that the accused
cannot be released until that body makes its ruling. The petitioner also filed a habeas corpus motion
before the President of the Supreme Court of Justice, seeking his immediate
release; this petition went unanswered, even though from 1995 to 1998
the petitioner constantly sought action on these motions. Finally, on May 7, 1998, the consultation was resolved and
it was ordered that charges be dismissed with prejudice. The petitioner also denounced that according to the laws of
Ecuador, the consultation must be resolved within 15 days, and in this
case it took more than one year.
On July 6, 1998, after an appeal by the petitioner of the refusal
of the mayor to release him through the filing of a writ of habeas
corpus, the Constitutional Court ordered the petitioner released.
Petitioner was released on July 16, 1998, after having been detained
for six years and 25 days on suspicion, with a provisional arrest warrant.
In the trial for illegal straw man on March 23, 1998, it was ordered
that the trial phase, with petitioner as the accused, proceed; the respective
judgment is about to be handed down in that case.
PROCESSING BEFORE THE COMMISSION
On December 29, 1997, the Commission received the complaint and
on March 19, 1998, the Commission initiated the processing of this case
and asked the State to provide the pertinent information.
On February 9, 1999, the Commission proposed to the parties that
they initiate the procedure to pursue a friendly settlement.
On February 15, 1999, the petitioner accepted the proposal.
On June 11, 1999, the friendly settlement agreement was signed
by the parties, with the presence of then-member of the Commission and
rapporteur for Ecuador, Carlos Ayala Corao, who had traveled to Quito
to facilitate the process.
THE FRIENDLY SETTLEMENT AGREEMENT
The Friendly Settlement Agreement signed by the parties reads as
Ecuadorian State, through the Office of the Attorney General, with a view
to promoting and protecting human rights and given the great importance
of the full observance of human rights at this time for the international
image of our country, as the foundation of a just, dignified, democratic,
and representative society, has decided to take a new course in the evolution
of human rights in Ecuador.
Office of the Attorney General has initiated conversations with all persons
who have been victims of human rights violations, aimed at reaching friendly
settlement agreements to provide reparations for the damages caused.
Ecuadorian State, in strict compliance with the obligations it acquired
upon signing the American Convention on Human Rights and other international
human rights law instruments, is aware that any violation of an international
obligation that has caused damages triggers the duty to make adequate
reparations--monetary reparations and criminal punishment of the perpetrators
being the most just and equitable form. Therefore the Office of the Attorney
General and Mr. Segundo César Duque Chasi, on behalf and in representation
of Mr. Kelvin Vicente Torres Cueva, have reached a friendly settlement,
pursuant to the provisions of Articles 48(1)(f) and 49 of the American
Convention on Human Rights and Article 45 of the Regulations of the Inter-American
Commission on Human Rights.
following persons were present at the signing of this Friendly Settlement
Dr. Ramón Jiménez Carbo, Attorney General of the State, as indicated
in his appointment and certificate of office, which are attached as qualifying
Mr. Segundo César Duque Chasi, on behalf and in representation
of Mr. Kelvin Vicente Torres Cueva, as appears from the special power
of attorney No. 12/99 executed before the Consulate of Ecuador in London,
England; a copy of that document is also attached as a qualifying document.
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. Kelvin Vicente Torres Cueva enshrined
in Article 5 (right to humane treatment), Article 7 (right to personal
liberty), Article 8 (fair trial), Article 24 (equality before the law),
and Article 25 (judicial protection), and at the same time the general
obligation contained in Article 1(1) of the American Convention on Human
Rights and other international instruments, considering that the violations
were committed by State agents, which could not be disproved by the State,
giving rise to State responsibility.
the above, the Ecuadorian State accepts the facts in case No. 11.991 before
the Inter-American Commission on Human Rights and undertakes the necessary
reparative steps to compensate the victims, or their successors, for the
damages caused by those violations.
view of the foregoing, the Ecuadorian State, through the Attorney General,
as the sole judicial representative of the Ecuadorian State, pursuant
to Article 215 of the Constitution of Ecuador, enacted in Official Register
No. 1 and in force since August 11, 1998, is awarding Mr. Kelvin Vicente
Torres Cueva a one-time compensatory payment in the amount of fifty thousand
US dollars (US$ 50,000) or the equivalent in local currency, calculated
at the exchange rate in effect at the time the payment is made, to be
paid from the National Budget.
compensation covers the consequential damages, loss of income, and moral
damages suffered by Mr. Kelvin Vicente Torres Cueva, as well as any other
claims that Mr. Kelvin Vicente Torres Cueva or his family members may
have, regarding the subject of this agreement, under domestic and international
law, and is chargeable to the National Budget. To this end, the Office
of the Attorney General will notify the Ministry of Finance, for it to
carry out this obligation within 90 days of the signing of this document.
PUNISHMENT OF THE PERSONS RESPONSIBLE
Ecuadorian State pledges to bring civil and criminal proceedings and pursue
administrative sanctions against those persons who are alleged to have
participated in the violation in the performance of State functions or
under the color of public authority.
Office of the Attorney General pledges to encourage the State Attorney
General, the competent judicial organs, and public agencies or private
institutions to contribute legal evidence to determine the liability of
those persons. If admissible, the prosecution will be subject to the constitution
and laws of the Ecuadorian State.
RIGHT TO SEEK INDEMNITY
Ecuadorian State reserves the right to seek indemnity, pursuant to Article
22 of the Constitution of the Republic of Ecuador, from those persons
found responsible for human rights violations through a final and firm
judgment handed down by the countrys courts or when administrative
liability is found, in keeping with Article 8 of the American Convention
on Human Rights.
TAX EXEMPTION AND DELAY IN COMPLIANCE
payment made by the Ecuadorian State to the other party to this agreement
is not subject to any current or future taxes, except for the 1% tax on
the event that the State is delinquent for over three months from the
date the agreement is signed, it must pay interest on the amount owed,
corresponding to the current bank rate of the three largest banks in Ecuador
for the duration of its delinquency.
Ecuadorian State, through the Office of the Attorney General, agrees to
report every three months to the Inter-American Commission on Human Rights
on compliance with the obligations assumed by the State in this friendly
keeping with its consistent practice and obligations under the American
Convention, the Inter-American Commission on Human Rights will oversee
compliance with this agreement.
compensatory damages that the Ecuadorian State is awarding to Mr. Kelvin
Vicente Torres Cueva are provided for in Articles 22 and 24 of the Constitution
of the Republic of Ecuador, for violation of the constitution, other national
laws, and the norms in the American Convention on Human Rights and other
international human rights instruments.
friendly settlement is entered into based on respect for the human rights
enshrined in the American Convention on Human Rights and other international
human rights instruments and on the policy of the Government of Ecuador
to respect and protect human rights.
NOTIFICATION AND CONFIRMATION
Kelvin Vicente Torres Cueva specifically authorizes the Attorney General
to notify the Inter-American Commission on Human Rights of this Friendly
Settlement Agreement, so that the Commission may confirm and ratify it
in its entirety.
parties to this agreement freely and voluntarily express their conformity
with and their acceptance of the content of the preceding clauses and
state for the record that they hereby end the dispute before the Inter-American
Commission on Human Rights on the international responsibility of the
State for violating the rights of Mr. Kelvin Vicente Torres Cueva.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
is compatible with the provisions of Article 48(1)(f) of the American
On September 25, 2000, CEDHU reported to the Commission that on
August 30, 2000, the State proceeded to make payment of the compensation
agreed upon. Even though
the State undertook to pay interest for the delinquency in payment, and
even though the compensation was to be exempt from any tax other than
the one-percent, the State has failed to comply with the commitments acquired
on June 11, 1999, in respect of both interest and taxes.
The State has not met its duty to try and punish the persons responsible.
The Commission reiterates its recognition of the Ecuadorian State
for its decision to settle the case through reparative measures, including
those needed to punish the persons responsible for the violation alleged.
The IACHR also reiterates is recognition of the petitioner for accepting
the terms of the agreement.
The IACHR will continue to monitor compliance with the commitments
assumed by Ecuador, regarding the trial of the persons considered responsible
for the facts alleged, and payment of the interest for late payment of
the compensation, which to date have not been carried out.
The IACHR ratifies that the friendly settlement procedure provided
for in the American Convention makes it possible to conclude individual
cases in a non-contentious manner, and has proven, in cases from several
countries, to offer an important vehicle for resolving alleged violations,
which may be used by both parties (petitioners and the State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To recognize that the State has made payment of the US$ 50,000
in compensation, and to note its failure to carry out its commitments
to punish the persons responsible for the violation alleged, and to pay
interest for the delinquency in payment of the compensation.
To urge the State to make the decisions needed to carry out the
pending commitments to bring to trial the persons considered responsible
for the facts alleged, and to pay interest for the delinquency in payment
of the compensation.
To continue to monitor and supervise compliance with each and every
one of the points of the friendly settlement agreement, and, in that context,
to remind the State, through the Office of the Attorney General, of its
commitment to report to the IACHR every three months on performance of
the obligations assumed by the State under this friendly settlement agreement.
To make this report public and to include it in its Annual Report
to the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington D.C., on this the 5th day of October 5, 2000.
(Signed): Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Commissioners: Marta Altolaguirre, Robert K. Goldman and Peter Laurie.
Dr. Julio Prado Vallejo, of Ecuadorian nationality, did
not participate in the discussion of this case, in keeping with Article
19 of the Commissions Regulations.