Pompeyo Carlos Andrade Benítez v. Ecuador, Case 12.007, Report No. 110/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 450 (2001).
The Comisión Ecuménica de Derechos Humanos (CEDHU)
(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)
in which it alleged the violation of the following rights protected by the
American Convention on Human Rights (hereinafter the Convention
or the American Convention): the right to humane treatment (Article
5), the right to personal liberty (Article 7), the right to a fair trial (Article
8), and the right to judicial protection (Article 25), in violation of the
obligations set forth in Article 1(1), to the detriment of Mr. Pompeyo Carlos
The parties reached a friendly settlement agreement in this case on
August 15, 2001. This report contains a brief presentation of the facts and
the text of the agreement reached, in keeping with Article 49 of the Convention.
According to the complaint, on September 18, 1996, Mr. Pompeyo Carlos
Andrade Benítez was illegally deprived of his liberty, when detained without
the constitutionally-required arrest warrant and held incommunicado for one
week. The detention was under
the pretext of investigations by INTERPOL in Guayas, at the request of judicial assistance
provided by the Public Ministry, Office of the Special Prosecutor for Drug-related
Crimes of Panama, Republic of Panama; the request was made under Article 7
of the 1988 Vienna Convention.
The petitioner argues that during his detention, Mr. Andrade was not
allowed to have the counsel of his attorney or the presence of his family
members, as he was confined to a small room with music playing full blast
day and night. After five days
in this situation of psychological torture and incommunicado detention, a
statement was taken from him, in disregard outside of the proper procedure
and without the presence of an attorney.
The petitioner adds that the request for judicial assistance did not
mention Mr. Andrade or the company APOLINAR PESCA SECA, S.A., which he had
established 15 years earlier; during that entire time he worked exporting
dried seafood products. In addition, the petitioner indicated that Judge Grace
Campoverde did not specify the indicia that provided the grounds for the preventive
arrest warrant, as required by Article 177 of the Code of Criminal Procedure,
a judicial act that violated Mr. Andrades legitimate right to defense,
which is enshrined in the Constitution of Ecuador.
In addition to the foregoing, the petitioner argues that the representative
of the Public Ministry, Justo Loor Chóez, issued an opinion in which he refrained
from indicting Mr. Andrade, precisely because prior to the indictment there
was no evidence whatsoever linking him directly or indirectly to the object
of the criminal proceedings..
The petitioner recounts that after 10 months of detention, the 3rd
Criminal Law Judge of Guayas, by resolution of July 22, 1997, revoked the
preventive arrest warrant issued for Mr. Andrade.
On September 5, 1997, the Office of the Prosecutor issued a ruling
in which it ratified the decision not to indict Mr. Andrade, and later, the
same Judge Grace Campoverde, who handed down the ruling that he had been unlawfully
and arbitrarily detained, dismissed the charges against him, without prejudice.
Nonetheless, despite that resolution, Mr. Andrade was not released;
accordingly, he recurred to the President of the Superior Court of Justice
of Guayaquil, Mr. Milton Moreno Aguirre, seeking his release pursuant to Article
458 of the Code of Criminal Procedure.
Nonetheless, the Court denied the motion, maintaining that these types
of proceedings have procedures spelled out in the law and that according to
those procedures, there was no violation of the law.
For his part, however, the petitioner argues, the terms and time limits
established by the law have been violated.
Furthermore, the petitioner indicates that his brief containing the
amparo motion is not to be found
in the Supreme Court and that all judicial remedies in the Republic of Ecuador
to seek his release have been exhausted.
PROCESSING BEFORE THE COMMISSION
On May 14, 1998, the Commission sent the respective notes to the State
and to the petitioner. On May 22, 1998, the petitioner addressed the Commission
once again expressing that it had not yet secured Mr. Andrades release,
even though charges against him were dismissed by the court. On June 24, 1998, the petitioner notified the Commission that
Mr. Andrade was released on June 16, 1998, as a result of the request for
information by the Commission to the Government of Ecuador as to his situation.
The petition followed the course set out in the Rules of Procedure.
On March 5, 1999, the Commission placed itself at the parties
disposal to pursue a friendly settlement.
On July 7, 1999, CEDHU informed the Commission that an agreement had
been reached to sign a friendly settlement agreement in relation to Pompeyo
Carlos Andrade Benítez. On May
21, 2001, the petitioner informed the Commission, inter
alia, that the Office of the Attorney General had resolved to postpone
any agreement indefinitely. The
Commission received a communication from the Government of Ecuador containing
a list of cases in which friendly settlement was to be pursued, including
this one. The friendly settlement
agreement 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 its entirety and to supervise
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 Mr. Pompeyo
Carlos Andrade Benítez 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. Pompeyo Carlos Andrade Benítez, with citizen
identification number 180007056-5, which is attached hereto as a qualifying
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. Pompeyo Carlos Andrade Benítez recognized
in Article 8 (right to a fair trial), 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 12.007 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. Pompeyo Carlos Andrade Benítez
a one-time compensatory payment in the amount of twenty thousand US dollars
(US$ 20,000), to be paid from the National Budget.
compensation covers the consequential damages, loss of income, and moral damages
suffered by Mr. Pompeyo Carlos Andrade Benítez, as well as any other claims
that Mr. Pompeyo Carlos Andrade Benítez 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 Economy and Finance, for it to carry out
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. Pompeyo
Carlos Andrade Benítez 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
Pompeyo Carlos Andrade Benítez 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. Pompeyo Carlos Andrade Benítez.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
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$ 20,000 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
Commissioner Julio Prado Vallejo, of Ecuadorian nationality, did not participate
in the discussion of this case, in keeping with Article
17 of the Commissions Rules of Procedure.
INTERPOL is the International Criminal Police Organization.
Article 22, section 19, letter E, Constitution of Ecuador, which guarantees
the right to defense.