Marco Vinicio Almeida Calispa v. Ecuador, Case 11.450, Report No. 106/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 428 (2001).
On November 8, 1994, the Inter-American Commission on Human Rights
(hereinafter the Commission or the IACHR) received
a complaint alleging the violation of rights protected in the American Convention
on Human Rights (hereinafter the American Convention) by the Republic
of Ecuador (hereinafter the State or Ecuador) to the
detriment of Mr. Marco Vinicio Almeida Calispa, deceased, represented by the
Comisión Ecuménica de Derechos Humanos (CEDHU, hereinafter
the petitioner). It
alleges the violation of Article 4 (right to life), Article 5 (right to humane
treatment), and Article 8 (right to a fair trial), all in relation to Article
1(1) of the American Convention.
The petitioner reports that on May 31, 1988, Mr. Almeida was detained
by the police in the city of Quito, under suspicion of robbery. The petitioner alleges that the Ecuadorian police, during the
interrogations performed at the Criminal Investigations Service of Pichincha,
used inhumane and illegal investigative procedures that caused the death of
Mr. Almeida. The petitioner also
states that the Ecuadorian judicial system was negligent when it took up the
case, making procedural errors that culminated in the acquittal of the accused.
The State denies that Mr. Almeidas death was due to the action
of the Police.
On February 22, 2001, the Commission declared this petition admissible.
The parties reached a friendly settlement agreement in this case on
August 15, 2001. This report
contains a brief statement of the facts and the text of the agreement, in
keeping with Article 49 of the Convention.
On February 2, 1988, during the police interrogation sessions at the
Marco Almeida died of asphyxia. Lt.
Juan Sosa Mosquera and detectives Víctor and Manuel Soto Betancourt were accused
of being responsible for the custody of Marco Almeida when he died.
The First Criminal Court of Pichincha began the respective criminal
proceeding; the judge ordered that the agents be arrested.
Nonetheless, that order was not carried out.
On September 14, 1988, the inquiry began at the First District Court
of the Police, blocking the judge from the regular criminal courts from assuming
jurisdiction, because the police jurisdiction was applied to the accused.
Later, the case went before the Supreme Court, where it was at a standstill
for two years. It was not until February 10, 1992, that the Court resolved
the jurisdictional conflict in favor of the First Judge of the First Police
District. In the context of the investigative proceeding, in August 1993,
an indictment was handed down, along with the reasoned order against police
agents Víctor Abraham Soto Betancourt and Manuel Benigno Soto Betancourt.
Nonetheless, as of 1994, six years after the proceedings were initiated, there
was still no verdict.
PROCESSING BEFORE THE COMMISSION
On November 8, 1995, a complaint was lodged before the Commission.
On March 27, 1996, the Government of Ecuador was sent the pertinent
parts of the complaint regarding Marco Vinicio Almeida.
Once again, on July 10, 1996, the Government was asked to provide information
on the facts alleged in the complaint within 30 days.
On August 3, 1995, the State answered that it did not have the information
required to issue a response in this case.
The IACHR reiterated the request for information to the State on August
11, 1995. On September 18, 1995, the State provided its first answer.
The procedure continued as information and observations went back and
forth between the parties.
On May 7, 1999, the Commission placed itself at the parties disposal
to reach a friendly settlement. On
May 11, 1999, the petitioner accepted the possibility of reaching a friendly
settlement, which was signed on August 15, 2001, in the presence of Commissioner
Marta Altolaguirre, member of the IACHR and rapporteur for Ecuador, who had
traveled to Quito to facilitate the agreement.
The parties asked the Commission to ratify this friendly settlement
agreement in all its terms and to supervise its implementation.
FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement signed by the parties reads as follows:
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
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 Mrs.
Sonia del Rosario Arauz Olmedo and Mr. Jaime Andrés Almeida Arauz, widow and
son of Mr. Marco Vinicio Almeida Calispa (deceased), 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 41 of the Rules of Procedure
of the Inter-American Commission on Human Rights.
following persons were present at the signing of this friendly settlement
For the first party, Dr. Ramón Jiménez Carbo, Attorney General of the
State, as indicated in his appointment and certificate of office, which are
attached as qualifying documents;
For the second party Mr. Segundo José Arauz Maldonado, with citizen
identification number 170034937-4, father and grandfather of Mrs. Sonia del
Rosario Arauz Olmedo and Mr. Jaime Andrés Almeida Arauz, respectively, and
father-in-law of Mr. Marco Vinicio Almeida Calispa, deceased, as appears from
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. Marco Vinicio Almeida Calispa, recognized
in Article 4 (right to life), Article 8 (right to a fair trial), Article 5
(right to humane treatment), Article 7 (right to personal liberty), and Article
25 (right to judicial protection), in relation to 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 11.450 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. Segundo José Arauz Maldonado,
with citizen identification number 170034937-4, father-in-law of Mr. Marco
Vinicio Almeida Calispa, deceased, in representation of Mrs. Sonia del Rosario
Arauz Olmedo and Mr. Jaime Andrés Almeida Arauz, widow and son of Mr. Marco
Vinicio Almeida Calispa, deceased, a one-time compensatory payment in the
amount of thirty thousand US dollars (US$ 30,000), to be paid from the National
compensation covers the consequential damages, loss of income, and moral damages
suffered by Mr. Marco Vinicio Almeida Calispa, as well as any other claims
that Mr. Segundo José Arauz Maldonado, Mrs. Sonia del Rosario Arauz Olmedo,
or Mr. Jaime Andrés Almeida Arauz, father-in-law, widow, and son of Mr. Marco
Vinicio Almeida Calispa, or their 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 Economy and Finance, for it to carry out this obligation.
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.
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 settlement agreement.
keeping with its consistent practice and obligations under the American Convention,
the Inter-American Commission on Human Rights will oversee compliance with
compensatory damages that the Ecuadorian State is awarding to Mr. Marco Vinicio
Almeida Calispa 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 standards 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
Segundo José Arauz Maldonado, Mrs. Sonia del Rosario Arauz Olmedo, and Mr.
Jaime Andrés Almeida Arauz, father-in-law, widow, and son of Mr. Marco Vinicio
Almeida Calispa (deceased), specifically authorize 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. Marco Vinicio Almeida Calispa.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the foregoing friendly settlement agreement
is compatible with the provisions of Article 48(1)(f) of the American Convention.
Commission values the signing of a friendly settlement agreement in the terms
of the American Convention, on which the State and petitioner reached agreement.
IACHR will continue to monitor compliance with the commitment assumed by Ecuador
regarding the proceedings to be brought against the persons implicated in
the events alleged.
IACHR ratifies that the option of friendly settlement provided for in the
American Convention makes it possible to terminate individual cases in a non-contentious
manner, and has proven, in cases regarding several countries, to be an important
procedure for resolving alleged violations that can be used by both parties
(petitioner and State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To certify compliance by the State with the payment of US$ 30,000 to
the petitioner in this case as compensation.
To remind the State that it must fully implement the friendly settlement
agreement, bringing judicial proceedings against the persons implicated in
the violations alleged.
To continue to monitor and supervise compliance with each and every
one of the points of the friendly settlement agreement, and, in this context,
to remind the State, through the Office of the Attorney General, of its commitment
to report to the IACHR every three months on compliance with the obligations
assumed by the State under this friendly settlement.
To make this report public and include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., October 11, 2001. (Signed):
Claudio Grossman, President; Juan E. Méndez, First Vice-President; Marta Altolaguirre,
Second Vice-President; Commissioners Hélio Bicudo, Robert K. Goldman, and
SIC-P: Criminal Investigation Service of Pichincha.