Juan Clímaco Cuellar et al v. Ecuador, Case 11.478, Report No. 19/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 551 (2000).
CLÍMACO CUÉLLAR, CARLOS CUÉLLAR, ALEJANDRO AGUINDA, LEONEL AGUINDA, DEMETRIO
PIANDA, HENRY MACHOA, CARMEN BOLAÑOS, JOSUÉ BASTIDAS, JOSÉ CHICANGANA,
FROILÁN CUÉLLAR, AND HAROLD PAZ
On November 8, 1994, the Fundación Regional de Asesoría en Derechos
Humanos (hereinafter INREDH or the petitioner)
presented 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
denounced 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 honor and dignity (Article 11), all in breach of the obligations set
forth at Article 1(1) to the detriment of Juan Clímaco Cuéllar, Carlos
Cuéllar, Alejandro Aguinda, Leonel Aguinda, Demetrio Pianda, Henry Machoa,
Carmen Bolaños, Josué Bastidas, José Chicangana, Froilán Cuéllar, and
The parties reached a friendly settlement in this case on June
25, 1998. This report contains
a brief presentation of the facts plus the text of the settlement agreement,
in keeping with Article 49 of the Convention.
On December 18, 1993, at approximately 10 a.m., armed and hooded
members of the military detained Colombian citizens Froilán Cuéllar and
José Otilio Chicangana in the Montepa sector. On December 19, 1993, at
approximately 9 a.m., also detained in the community of Nueva Esperanza
were Juan Clímaco Cuéllar, Henry Machoa, Alejandro Aguinda, and Demetrio
Pianda. Later that same day, and in the same place, Leonel Aguinda and
Carlos Enrique Cuéllar were detained. On December 20, 1993, Josué Bastidas
and Harold Paz were detained. All
were detained by members of the Ecuadorian Army, without the legal formalities
and without being informed as to the causes of the detention.
On December 27, 1993, the persons detained were handed over by
the Ministry of Defense to the Ministry of Government in Quito, with the
request that they be placed at the disposal of the corresponding judicial
From the moment they were detained until their transfer to Quito,
the victims were kept incommunicado, without access to an attorney or
their relatives, in violation of Article 130 of the Ecuadorian Code of
During the detention, the victims were subjected to physical and
psychological torture, such as deprivation of food, water, and sleep,
being forced to drink urine and mud, being blindfolded during the detention,
deprivation of mobility of the arms and feet, electric shock to the genitalia
and extremities, inhalation of gasses, beatings with sticks, burns on
the body, asphyxia in water and with plastic covers, sexual abuses, injection
of drugs, threats to kill family members, and simulated shooting.
The only woman detained was also raped by the members of the military,
and even by other detainees, who were forced to commit such acts. The
purpose of the torture was to obtain self-incriminating statements. Four
of the detainees withstood the torture without incriminating themselves;
the other seven were broken.
The victims were also deprived of the guarantees of due process.
The appeal of the detention and the criminal proceeding were subject to
unwarranted delay. Four of the victims regained their freedom on August
30, 1994, after charges were dismissed with prejudice.
The other seven were released on September 4, 1996.
All were acquitted, and in the proceedings it was shown that there
had been human rights violations.
On December 17, 1996, the victims presented a claim to the President
of the Republic, requesting compensation for acts carried out by state
officials, called for in Article 23 of the Constitution. This claim was
denied. In May 1997, an action was presented to the Contentious-Administrative
Court, for the same purpose. The
legal counsel to the President answered that the action should be dismissed,
since the statute of limitations had run, and noted that the President
of the Republic was not responsible for the actions of the members of
the armed forces or police. The Office of the Attorney General never answered
PROCESSING BEFORE THE COMMISSION
After the Commission received the complaint and opened the case,
on April 24, 1998, the Commission placed itself at the disposal of the
parties for the purpose of reaching a friendly settlement.
That settlement was reached on June 25, 1998. The parties asked
the Commission to ratify the present friendly settlement agreement in
its entirety, and to supervise its implementation.
FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement signed by the parties reads as
following persons were present at the signing of this friendly settlement
agreement: For the first
party, Mr. Milton Alava Ormaza, in his capacity as Attorney General, and
sole judicial representative of the Ecuadorian State, as accredited in
the appointment and certificate of office, duly authenticated, which are
attached as qualifying documents, and for the second party Catholic Church
prelate Bishop of Sucumbíos, Monsignor Gonzalo López Marañón, in his capacity
as representative of Messrs. Juan Clímaco Cuéllar, Carlos Cuéllar, Alejandro
Aguinda, Leonel Aguinda, Demetrio Pianda, Henry Machoa, Carmen Bolaños,
Josué Bastidas, José Chicangana, Froilán Cuéllar, and Harold Paz, whose
identities are attested to by the copies of their respective citizen ID
cards, who for the purpose of this Agreement shall be referred to as the
peasants of Putumayo.
Monsignors Gonzalo López Marañóns power-of-attorney is attached
as a qualifying document to this friendly settlement agreement.
Attorney General, Mr. Milton Alava Ormaza, is appearing under Article
139 of the Constitution of Ecuador, and pursuant to Article 3 of the Organic
Law of the Office of the Attorney General, published in the Registro
Oficial Nº 335 of June 9, 1998.
December 16, 1993, in the sector called Peña Colorada, canton of
Putumayo, province of Sucumbíos, members of a combined patrol of the Ecuadorian
Army and Police were ambushed by unidentified persons; 11 members of the
Ecuadorian forces were killed.
a result of this attack, the peasants from Putumayo whose names are indicated
with these detentions, which were without a written order from a competent
authority, without an indictment, and with incommunicado detention for
more than 24 hours, the detainees were subjected to a series of violations
of human rights, such as physical, sexual, and psychological torture,
in this way requiring them to make spurious statements which were the
basis for a criminal trial substantiated in the various judicial entities. Finally, however, the charges were dismissed with prejudice
in the cases of Demetrio Panda, Alejandro Aguinda, Leonel Aguinda, and
Josué Bastidas, a measure that was affirmed by the Fourth Chamber of the
Superior Court of Justice of Quito; and the motion for cassation brought
by the persons convicted was accepted, and so on August 28, 1996, Messrs.
Juan Clímaco Cuéllar, Carlos Cuéllar, Henry Machoa, Carmen Bolaños, José
Chicangana, Froilán Cuéllar, and Harold Paz were absolved by the First
Chamber for Criminal Matters of the Supreme Court of Justice on August
on these judicial pronouncements in the court of last resort, the peasants
who were unjustly detained and convicted presented a property-related
claim to the President of the Republic, based on the provisions of Article
23 of the Constitution and Articles 130 to 134 of the Administrative Legal
Regime of the Executive Function, but they received no response. They filed a personal appeal before the Contentious-Administrative
Court, which to date has not been resolved.
final judgment that declared the innocence of the peasants from Putumayo,
and the forensic studies done by the experts from the National Council
for the Control of Narcotic and Psychotropic Substances (CONSEP), designated
by the Ninth Criminal Law Judge of Pichincha, as well as the psychological
and psychosocial exams performed on the victims, are all clear and convincing
evidence of the illegal and arbitrary detentions, and of the physical,
sexual, and psychological torture to which they were subjected.
acts carried out by the agents of the Ecuadorian State violated the constitutional
and statutory provisions of Ecuadorian law; Articles 1, 5, 7, 8, and 11
of the American Convention on Human Rights; and Article 10 of the Inter-American
Convention to Prevent and Punish Torture.
addition, there were violations of Articles 19, 20, and 22(1), 22(19)(g)
and 22(19)(h) of the Constitution of Ecuador.
November 8, 1994, the peasants of Putumayo submitted a complaint against
the Ecuadorian State to the Inter-American Commission on Human Rights
for illegal and arbitrary detention, incommunicado detention, torture,
and violation of the presumption of innocence, incorporating abundant
documentary and testimonial evidence to justify the allegations.
May 4, 1995, the Inter-American Commission on Human Rights admitted the
case for processing, and assigned it case number 11.478, as it considered
the claim to meet the jurisdictional requirements of the American Convention
on Human Rights.
- STATE RESPONSIBILITY
domestic judicial proceeding was characterized by unjustified delays,
highly technical arguments, inefficiency, and denial of justice.
The Ecuadorian State could not demonstrate that it was not its
official agents who illegally and arbitrarily detained and tortured the
peasants from Putumayo, and held them incommunicado, nor could it refute
that those actions were at odds with the Constitution, the legal framework
of the Ecuadorian State, and the international standards that protect
- RECOGNITION OF RESPONSIBILITY AND ACCEPTANCE OF THE ECUADORIAN STATE
this context, the Ecuadorian State recognizes its culpability in the facts
narrated before the Inter-American Commission on Human Rights, and is
undertaking to adopt reparative measures by recurring to the institution
of friendly settlement provided for in Article 45 of the Regulations of
the Inter-American Commission on Human Rights.
view of the foregoing, the Ecuadorian State, represented by the Office
of the Attorney General, makes a one-time payment of US$ 100,000 (one
hundred thousand U.S. dollars) each, or its equivalent in national currency,
to Juan Clímaco Cuéllar, Carlos Cuéllar, Alejandro Aguinda, Leonel Aguinda,
Demetrio Pianda, Henry Machoa, Carmen Bolaños, Josué Bastidas, José Chicangana,
Froilán Cuéllar, and Harold Paz. This sum is related to that demanded
by them, and is compensation for the delay in paying them since they formulated
their claim on December 17, 1996, to the President of the Republic.
compensation covers the consequential damages, loss of income, and moral
damages suffered by the peasants of Putumayo, and shall be paid to them
pursuant to the domestic 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.
- COMPENSATION FROM GUILTY PERSONS
friendly settlement agreement does not include such compensation as the
peasants of the Putumayo have the right to claim the persons responsible
for their unlawful and arbitrary detention, torture, and incommunicado
detention, under Articles 52 and 67 of the Ecuadorian Criminal Code, but
it renders without effect the claim filed against the Ecuadorian State
before the Contentious-Administrative Court.
Office of the Attorney General, in representation of the Ecuadorian State,
states for the record that the peasants of Putumayo were victims of illegal
and arbitrary detention, breaking and entering, torture, incommunicado
detention, and violation of the presumption of innocence, based on unfounded
accusations. The Office of
the Attorney urges the Armed Forces of Ecuador and the National Police,
in carrying out their mission of exercising vigilance along the border
with Colombia, to observe the guarantees of due process to which all persons
who are accused of criminal infractions have a right.
Ecuadorian State, through the Office of the Attorney General, pledges
to encourage the State Attorney General and the competent judicial organs,
to bring criminal charges against those persons who are considered to
have participated in the facts alleged, and to encourage the public or
private organs with competence to contribute legally supported information
that makes it possible to bring those persons to trial.
trial shall be carried out subject to the constitutional and statutory
order of the Ecuadorian State, and in the event that the offenses attributable
to them have not legally prescribed.
Ecuadorian State, through the Office of the Attorney General, agrees to
report every three months to the Inter-American Commission on Human Rights
or the Inter-American Court of Human Rights on compliance with the obligations
assumed by the State in this friendly settlement agreement.
- LEGAL BASIS
compensatory damages that the Ecuadorian State is awarding to the peasants
of Putumayo are provided for in Articles 23 and 25 of the Constitution
of the Republic of Ecuador for violations of the individual rights and
guarantees and of the provisions of the American Convention on Human Rights,
of which Ecuador is a signatory country.
peasants of Putumayo 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, in their respective capacities, freely and voluntarily express
their conformity with and their acceptance of the content of the preceding
clauses and state for the record that this ends case Nº 11.478 before
the Inter-American Commission on Human Rights, and that in the future
they will have no claims to file over this case.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
above is compatible with the terms of Article 48(1)(f) of the American
The petitioner informed the IACHR in February 2001 that the State
proceeded to pay the compensation agreed upon in the friendly settlement
agreement. Similarly, the
petitioner reported that the case, after lengthy problems of jurisdiction
in Quito, went to the courts in the province of Sucumbíos, where it suffered
the same fate. Finally, jurisdiction was found to lie in the First Criminal
Law Judge of Sucumbíos in December 2000, without it advancing beyond the
investigative phase as of that date.
On March 7, 2001, the State informed the Commission that criminal
proceedings had been instituted to determine the sanctions and responsibility
of the persons implicated in the violations alleged.
The Commission reiterates its recognition of the Ecuadorian State
for its decision to resolve this case by adopting measures of reparation,
including those necessary to punish the persons responsible for the violations
alleged. The IACHR also reiterates
its recognition of the petitioner for accepting the terms of the agreement.
The IACHR will continue to monitor compliance with the ongoing
commitment assumed by Ecuador with regard to the trial of the persons
presumed responsible for the facts alleged.
The IACHR ratifies that the possibility of friendly settlement
provided for in the American Convention makes it possible to conclude
the individual cases in a non-contentious manner, and has proven, in cases
from several countries, to offer an important vehicle for solving alleged
violations that can be used by both parties (petitioner and State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To acknowledge that the State has made payment of US$ 100,000 as
compensation to each of the victims of the situations alleged, and to
note the lack of compliance with respect to the punishment of the persons
responsible for the violation alleged, and with respect to the payment
of interest for the delay in payment of the above-noted sum.
To urge the State to adopt the measures needed to comply with the
commitments pending with respect to the trial of the persons presumed
to be responsible for the facts alleged.
To continue to monitor and supervise the implementation of each
and every point of the friendly settlement agreement, and, in this context,
to remind the State, through the Office of the Attorney General, of its
commitment to inform the IACHR every three months of 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., February 20, 2001.
(Signed): Claudio Grossman, Chairman; Juan Méndez, First Vice-Chairman;
Marta Altolaguirre, Second Vice-Chairman; Commissioners Hélio Bicudo,
Robert K. Goldman, and Peter Laurie.
Commissioner Julio Prado Vallejo, of Ecuadorian nationality, did not
participate in the discussion of this case, in keeping with Article
19 of the Commissions Regulations.
There is nothing in Ecuadorian law according to which the military
authorities can deprive persons of liberty, keep them incommunicado,
and then hand them over to the competent civilian authorities.
Article 130: If the accused is deprived of liberty, his or her
testimony shall be taken within 24 hours, counted from the moment
he or she is brought before the Judge. This term may be extended for
another 24 hours when the Judge considers it necessary or when the
accused so requests.
incommunication of the accused, which may only be ordered by the Judge,
and may not last more than 24 hours, shall not keep him or her from
having direct communication with his or her defense counsel.