Jos Patricio Reascos v. Ecuador, Case 11.779, Report No. 22/01, OEA/Ser.L/V/II.111 Doc. 20 rev. at 568 (2000).
JOSÉ PATRICIO REASCOS
February 20, 2001
On February 18, 1997, the Comisión Ecuménica de Derechos Humanos
(hereafter CEDHU 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 alleged violations
of the following rights protected by the American Convention on Human
Rights (hereinafter the Convention or the American Convention):
the right to personal liberty (Article 7), the right to a fair
trial (Article 8), and the right to judicial protection (Article 25),
all in breach of the obligations set forth at Article 1(1), to the detriment
of Mr. José Patricio Reascos.
The parties arrived at a friendly settlement agreement in this
case on June 11, 1999. This
report contains a brief description of the facts and the text of that
agreement, in keeping with Article 49 of the Convention.
3. At 8:00 a.m.
of September 12, 1993, Mr. Reascos, who was inebriated, was detained in
the San Roque sector of the city of Quito by members of the Office of
Criminal Investigation. When he was searched, a packet of marijuana was found that
the petitioner had acquired for personal consumption.
Mr. Reascos was taken to the offices of Interpol and later transferred
to the Center for Provisional Detention.
The Third Criminal Court of Pachinko heard the case, and on October
16, 1993, instituted criminal proceedings and, considering that the requirements
of Article 177 of the Code of Criminal Procedure were satisfied, ordered that Mr. Reascos be held
in pre-trial detention.
The petitioner stated that at the moment the complaint was submitted
to the IACHR on February 18, 1997, and despite the constant requests for
a speedy trial, this had not happened, as more than three years had elapsed
without a formal indictment.
The petitioner reported that under Article 65 of the Law on Narcotic
and Psycho tropic Substances of Ecuador, drug consumption should be sanctioned
by a maximum of two years in prison, even if one is given the maximum
penalty provided by law.
At the time the complaint was received at the IACHR, Mr. Reascos had already
served more time than the maximum penalty that could have been imposed
on him. Accordingly, on November
4, 1996, he filed a writ of amparo
with the President of the Superior Court of Justice of Quito, which was
dismissed on November 6, 1996.
The petitioner declared that the investigation in the case, which
according to Article 231 of the Code of Criminal Procedure should not
last more than 60 days, was drawn out over three years.
On June 4, 1997, the Third Criminal Court of Pachinko sentenced
Mr. Reascos to 16 months of correctional prison for the crime of drug
consumption, and ruled that the verdict should be consulted with the superior
court. At the time of this
verdict, Mr. Reascos had been detained for three years and nine months.
On September 16, 1997, the Superior Court affirmed the verdict of the
court below, and so Mr. Reascos was released September 20, 1997, having
been imprisoned for a total of four years.
Accordingly, his right to be tried within a reasonable time was
violated, and likewise his right to be presumed innocent until proven
PROCESSING BEFORE THE COMMISSION
On March 3, 1997, the Commission received the complaint, originally
sent on February 18, 1997. On
July 28, 1997, it began the processing of this case and asked the Government
of Ecuador to provide relevant information within 90 days.
On September 24, 1997, the petitioner sent additional information.
On September 30, 1997, Ecuador submitted its response to the IACHR
with reports prepared by the National Police and the Superior Court of
Quito. On December 8, 1998,
the IACHR made itself available to the petitioner and the State to pursue
a friendly settlement. On
January 8, 1999, and February 1, 1999, respectively, the State and petitioner
accepted. The friendly settlement agreement was signed in the presence
of Carlos Ayala Corao, at the time a member of the IACHR and rapporteur
for Ecuador, who traveled to Quito to facilitate the agreement.
The parties asked the Commission to ratify this agreement in its
entirety and to supervise its implementation.
THE FRIENDLY SETTLEMENT AGREEMENT
The friendly settlement agreement signed by the parties states
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. José Patricio Reascos, acting on his own behalf, 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
Sister Elsie Hope Monge Yoder, on behalf of and in representation
of Mr. José Patricio Reascos, as appears in the special power-of-attorney
executed before the 33rd Notary of Quito, Mr. Nelson Prado; 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. José Patricio Reascos enshrined in Article
7 (personal liberty), Article 8 (a fair trial), and Article 25 (judicial
protection), and the general obligation set forth in Article 1(1) of the
American Convention on Human Rights and other international instruments,
since 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 11.779 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. José Patricio
Reascos, a one-time compensatory payment of twenty thousand US dollars
(US$ 20,000), 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
compensation covers the consequential damages, loss of income, and moral
damages suffered by Mr. José Patricio Reascos, and any other claim that
Mr. José Patricio Reascos or his next-of-kin 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 against
and shall seek the punishment of 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
settlement agreement. In
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. José
Patricio Reascos 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
José Patricio Reascos expressly 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. José Patricio Reascos.
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
CEDHU informed that Commission that on June 11  an
agreement was signed by which the State undertakes to punish the persons
responsible for the violations alleged and to pay fair compensation within
three months ... and on May 30, 2000, it proceeded to pay the victim the
amount corresponding to compensation, yet did not pay the interest, also
provided for in the agreement.
On February 27, 2001, during an informal meeting, the State informed
the Commission that the criminal proceedings have been initiated to determine
the responsibility and punishment of the persons implicated in the 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 commitment
assumed by Ecuador with regard to the trial of the persons presumed responsible
for the facts alleged, and payment of the interest for arrears.
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$ 20,000 as
compensation, and the beginning of judicial proceedings to punish the
persons implicated in the facts alleged.
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.
Article 177 of the Code of Criminal Procedure stipulates:
Judge may order pre-trial detention when he or she deems it necessary,
so long as the following procedural data appear:
Indicia that trigger a presumption of the existence of an offense
that merits deprivation of liberty; and,
Indicia that trigger a presumption that the accused is the
perpetrator of or accomplice to the offense that is the subject of
record shall indicate the indicia that are the grounds for the detention
Article 65 of the Law on Narcotic and Psychotropic Substances stipulates:
penalties for possession for personal use: the punishment shall be
one month to two years in prison when, in view of the small amount
and all other circumstances, the possession of substances subject
to control, one can deduce that they are for the immediate personal
use of the possessor.
this case, having confirmed his or her physical or psychological dependency
on narcotic or Psycho tropic substances, after a report by the forensic
experts at the Office of the Attorney General, the judge may suspend
the application of the penalty and submit the guilty person to curative
security measures for the time needed for his or her detoxification
This article was repealed on June 9, 1998.