Marco Vinicio Almedida Calispa v. Ecuador, Case 11.450, Report No. 18/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 271 (2000).
MARCO VINICIO ALMEIDA CALISPA
February 22, 2001
On November 8, 1994, the Inter-American Commission on Human Rights
(hereinafter the Commission or the IACHR), received
a complaint submitted by the Ecumenical Human Rights Commission (CEDHU,
hereinafter the petitioner), claiming that the Republic of Ecuador
(hereinafter the State or Ecuador) had violated
rights protected by the American Convention on Human Rights (hereinafter
the American Convention) with respect to Mr. Marco Vinicio Almeida
Calispa, deceased. The complaint alleged violations of Articles 4 (right
to life), 5 (humane treatment), and 8 (fair trial), all in conjunction with
Article 1(1) of the American Convention.
The petitioner reports that on May 31, 1988, Mr. Almeida was arrested,
on suspicion of theft, by police officers in the city of Quito. The petitioner
claims that the Ecuadorian police, during the interrogations conducted at
the Criminal Investigation Service in Pichincha, made use of inhuman and
illegal investigative procedures that caused Mr. Almeidas death. The
petitioner also claims that the Ecuadorian justice system was negligent
in dealing with this case and committed errors at trial that led to the
acquittal of the accused. The State does not accept that Mr. Almeidas
death was caused by the actions of the police.
In this report the Commission concludes that the case meets the admissibility
requirements set forth in Articles 46 and 47 of the American Convention.
The Commission has therefore decided to declare this case admissible, to
notify the parties of that decision, and to continue analyzing its merits
with respect to the alleged violations of Articles 4, 5, and 8 of the American
Convention. In addition, the Commission has decided to publish this report.
PROCESSING BY THE COMMISSION
The Commission received this complaint on November 8, 1994. On March
27, 1995, notes were sent to the State and to the petitioner, and the case
was opened. On August 3, 1995, the State replied that it did not have the
facts necessary to provide a reply. The IACHR again asked the State to provide
information on August 11, 1995. On September 18, 1995, the State submitted
its first reply. Processing continued, with information and comments being
forwarded to both parties. On May 5, 1999, the IACHR suggested that friendly
settlement proceedings could begin. The petitioner accepted this proposal
on May 11, 1999. As of the date of this report, February 22, 2001, the State
has not replied.
POSITIONS OF THE PARTIES
Position of the Petitioner
On May 31, 1988, Mr. Almeida, aged 26, a messenger-boy for the INDEGA
(Coca Cola) company in Quito, was arrested, along with two co-workers, after
an accusation that a sum of money (USD $5,900) had been stolen was made
by the companys head of security, Gen. Francisco Freile del Castillo
(ret.), a former police chief. The petitioner claims that the victim and
another two detainees were taken to the Criminal Investigation Service in
Pichincha (SIC-P). Lt. Juan Mosquera Sosa, currently under arrest for his
involvement in the Restrepo Arismendy case, took charge of the investigation,
along with Police Officers Víctor and Manuel Soto Betancourt, who also happened
to be brothers.
The petitioner claims that, on June 2, 1988, while the investigation
was still in process, Marco Almeida Calispa died as a result of the torture
inflicted on him by the Soto Betancourt brothers. According to the petitioner,
another detainee told the Court of Constitutional Guarantees that on June
2, 1988, he was taken from his cell, with a blindfold over his eyes and
his hands tied, after which he was hung from his thumbs and beaten. One
of the officers covered his head with a gas-filled hood and almost asphyxiated
him. This witness stated that at 2:30 p.m. on June 2, 1988, he heard Lt.
Sosa give the order for Marco Almeida to be brought to the room where his
own torture had taken place. He said that they left the door ajar
and that he was able to see the torture being inflicted, using the same
methods as had been used on him, after which they closed the door and he
was unable to see any more. On June 3, 1988, in response to his inquiries
about Almeidas whereabouts, he was told, by some officers, that Almeida
had been released and, by others, that he had been taken to hospital. The
petitioner claims that during Marco Almeidas interrogation, Víctor
Soto Betancourt (Officer 138) went out to have a few beers outside
the SIC-P complex and, after returning to the room where Marco Almeida was,
ran out in desperation to get a bucket of water to try and revive him; however,
it was too late, because the gas-filled hood placed over his head had caused
The petitioner claims that the police report gives a contradictory
version of events: it states that death occurred on the road to Conocoto,
where Mr. Almeida, the allegedly confessed thief of the USD $5,900, was
headed. According to this official version, while in police custody on his
way to recover the money, Almeida went into convulsions. He was taken to
Eugenio Espejo Hospital where, according to the police, he died. However,
according to the petitioner, the hospital certificate states that the victim
was dead upon arrival,
and a nurse reported that Officer 138, Víctor Soto Betancourt, who delivered
the body, said that he did not know the persons identity and that
the corpse had been found in Conocoto.
That same day, June 2, 1988, according to the police report, an autopsy
was performed by forensic pathologists José Vergara and Víctor Montalvo.
The final report was conditional on the results of tests on samples sent
to the laboratory, but those procedures, according to the petitioner, were
performed with inexplicable negligence, in that samples of certain important
organs were not submitted for analysis. The petitioner also states that
the pathologists conclusion supported the police version of events,
in which the officers claimed that Mr. Almeida could have ingested toxic
matter in his food. In the autopsy report, the forensic pathologists concluded
apparent cause of death [was the] ingestion of an organic-phosphoric substance
which, because it is highly toxic, rapidly causes unstoppable vomiting in
the victim; in this case, because his stomach was full, the trachea was
blocked by alimentary matter, leading to asphyxiation, and this was the
necessary and apparent cause of his violent death.
The petitioner also
states that further to the investigations, the Court of Constitutional Guarantees
asked the holder of the pathology chair at Central University, Dr. Galo
Hidalgo, to analyze the autopsy report. He remarked on the absence of important
evidence and the contradictions surrounding the cause of Marco Almeidas
death in the autopsy report. Dr. Hidalgo noted that the autopsy was performed
a full 18 hours after the victims death, even though the body was
delivered to the morgue at 5:20 p.m. on June 2, 1988, the day the victim
died. The physicians responsible for the autopsy attempted to justify the
shortcomings that Dr. Hidalgo detected by arguing that there was a shortage
of proper instruments for forensic practice in Ecuador. Dr. Hidalgo concluded
that the information provided was inadequate for reaching a firm conclusion
regarding the cause of Mr. Almeidas death.
The petitioner claims that the autopsy report was the main evidence
in the dismissal, by the First Police District Court, of the attempted prosecution
of the two police officers and in the conclusion those proceedings reached,
which held that Marco Almeida did not die as a result of the torture
he suffered in life and thus acquitted the two officers in whose custody
Marco Almeida had been held.
The petitioner reports that the victims relatives filed a complaint
for the illegal death of Marco Almeida with the Fifth Police Precinct. This
complaint, however, disappeared. Another police precinct subsequently initiated
proceedings, and the case was passed on to the First Criminal Court of Pichincha.
On January 23, 1989, the First Criminal Judge ordered the arrest of the
Soto Betancourt brothers, but the police authorities did not obey the courts
On April 11, 1989, the Judge of the First Police District asked the
First Criminal Judge to disqualify himself from hearing the case; the matter
was then transferred to the Superior Court of Justice for a ruling on jurisdiction.
The petitioner filed a claim with the Court of Constitutional Guarantees
which, on September 21, 1989, decided to instruct the Police Chief,
in pursuit of his specific functions, to order police officers to adapt
their procedures to the provisions of law and the Constitution, particularly
as regards respect for human rights.
The petitioner reports that the Superior Court disqualified itself
from the jurisdiction hearing; consequently, the case was passed on to Ecuadors
Supreme Court of Justice, where no action was taken for a period of two
years. As a result of this, claims the petitioner, important procedures
were delayed, such as an examination of the crime scene which, in the meantime,
had been dismantled and remodeled. On February 10, 1992, the Second Circuit
of the Supreme Court of Justice resolved the jurisdiction dispute in favor
of the First Judge of the First Police District who, on May 24, 1994, called
for a full trial and issued documents indicting the accused police officers.
On November 21, 1994, the First Police District Court revoked the indictment
and ordered a definitive dismissal of the charges made against the accused.
Position of the State
In its reply to the complaint, the State maintains that the ruling
of the First Police District Court established that the cause of the
violent death [of Marco Almeida] was the regurgitation of alimentary matter
and the consequent asphyxia, produced by the ingestion of a highly toxic
phosphoric substance, in connection with which the accused have been cleared
Ecuadorian police report Nº 913-SICP, dated June 2, 1988, claims
that the victim was leading the police officers to the location of the stolen
we saw the detainee Almeida Calispa go into convulsions and lose consciousness;
we therefore immediately returned to the city and went to Eugenio Espejo
Hospital so he could be given timely medical attention; however, upon arrival
there, the preparations for a preliminary examination indicated that he
had just died, probably of a heart attack.
The State claims that Mr. Almeidas death was due to causes
beyond the officers control, as shown in the police report and confirmed
by the autopsy. According to the State, prior to his arrest Mr. Almeida
had ingested a toxic substance which, ultimately, led to his death.
ANALYSIS OF ADMISSIBILITY
Competence of the Commission
Ratione Materiae, Ratione Personae,
and Ratione Loci
The Commission has competence ratione materiae, in that
the allegations set forth in the petition, if proven true, could constitute
violations of Articles 4, 5, and 8 of the American Convention.
Under Article 44 the petitioner is entitled to submit complaints
to the Commission, and the victim in this case is an individual with respect
to whom Ecuador had undertaken to guarantee and respect the rights enshrined
in the American Convention. As regards the State, the Commission notes that
Ecuador has been a state party to the American Convention since ratifying
it on December 28, 1977. The Commission therefore has competence ratione
personae to examine the complaint.
The IACHR has competence ratione temporis in that the sequence of events began in June 1988,
when the obligation of respecting and ensuring the rights enshrined in the
American Convention was already in force for the Ecuadorian State.
The parties have no doubts or disagreements about the fact that the
incidents described in the petition took place in Ecuadorian territory,
in an area under the jurisdiction of the State. Thus, the competence ratione
loci of the Commission is clear.
Other Requirements for Admissibility
Exhaustion of Domestic Remedies
The Commission first of all notes that the State has offered no explanation
for the two years it took to settle the question of the jurisdiction of
the courts involved with the complaint, a period of time longer than was
strictly necessary. On February 10, 1992, the Second Circuit of the Supreme
Court of Justice resolved the jurisdiction dispute in favor of the First
Judge of the First Police District who, on May 24, 1994, called for a full
trial and issued documents indicting the accused police officers. However,
on November 21, 1994, the First Police District Court revoked the indictment
and ordered a definitive dismissal of the charges made against the accused.
Thus, domestic remedies were exhausted with respect to the police officers
criminal responsibility in the death of Marco Almeida.
Timeliness of the Petition
Article 46(1)(b) of the Convention states that a petition must be
lodged within a period of six months from the date on which the petitioner
is notified of the final judgment exhausting domestic remedies. The petitioner
lodged the case with the Commission on November 8, 1994that is, five
months and 16 days after the First Judge of the First Police District called
for a full trial and 13 days before the final judgment. The Commission notes
that petitioner submitted the petition ad
cautelam, with reservations about possible delays in resolving the case
that could potentially cause violations of due process. Understanding that
the time it took to rule on the jurisdiction issue meant that upon lodging
the complaint the petitioner had legitimate doubts about the time it would
take to process the case, and because the petition was in any event lodged
within the six-month period, the Commission holds that the terms of Article
46(1)(b) have been met. In addition, the Commission believes that the State
tacitly accepted that the petition was lodged within the period set by Article
46.1.b by failing to argue otherwise.
Duplication of Proceedings and Res
The Commission understands that the substance of the petition is
not pending in any other international proceeding for settlement, and that
it is not substantially the same as any petition previously studied by the
Commission or other international body. Hence, the requirements set forth
in Articles 46(1)(c) and 47(d) of the Convention have also been met.
Characterization of the Alleged Facts
The Commission holds that the petitioners claims describe events
that, if proven true, could tend to establish a violation of the rights
protected by Articles 4, 5, and 8 of the American Convention; thus, the
requirements of Article 47(b) have been satisfied.
Based on the above legal and factual considerations, the Commission
concludes that the case at hand satisfies the admissibility requirements
set forth in Articles 46 and 47 of the American Convention and, without
prejudging the merits of the case,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
To declare this case admissible with respect to Articles 4, 5, and
8 of the American Convention.
To transmit this report to the petitioner and to the State.
To continue with its analysis of the merits of the case.
To publish this report and to include it in the Commissions
Annual Report to the General Assembly of the OAS.
Done and signed at the headquarters
of the Inter-American Commission on Human Rights, in the city of Washington,
D.C., on the 22nd day of February, 2001. (Signed): Claudio Grossman, Chairman;
Juan Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chairman;
Commissioners Hélio Bicudo, Robert K. Goldman, and Peter Laurie.
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate
in the discussion of this case in compliance with Article 19 of the
Submission made by Sonia Arauz, Almeidas widow, Quito, 29/Aug/88.
We do not know for certain the time of Marco Vinicio Almeida Calispas
death. Dr. Galo A. Hidalgo, Study and Analysis of Autopsy Report: Mr. Marco Vinicio Almeida Calispa.
 I can state that, in my opinion, the information available is insufficient for reaching firm conclusions about the causes and mechanics of Mr. Marco Vinicio Almeida Calispas death. Dr. Galo A. Hidalgo, Study and Analysis of Autopsy Report: Mr. Marco Vinicio Almeida Calispa.