Dayra Maria Levoyer Jimenez v. Ecuador, Case 11.992, Report No. 29/00, OEA/Ser.L/V/II.106 Doc. 3 rev. at 216 (1999).
DAYRA MARIA LEVOYER JIMENEZ
March 7, 2000
In a petition received by the Inter-American Commission on Human Rights
(hereinafter "the Commission" or the "IACHR") on December
10, 1997, the Comisión Ecuménica de
Derechos Humanos (Ecumenical Commission for Human Rights) (hereinafter
“the petitioner") filed a complaint against the State of Ecuador (hereinafter
"Ecuador" or "the State"), for violating the human rights
of Mrs. Dayra María Levoyer Jiménez.
The petitioner maintains that Mrs. Levoyer Jiménez was detained without
judicial order and held in solitary confinement for 39 days, during which
time she was subjected to psychological torture.
She was held, without a judgment being rendered, for more than five
years, with all of the charges against her eventually being dismissed. During
her detention, numerous writs of habeas
corpus were filed unsuccessfully.
Finally, on June 16, 1998, the Constitutional Court ruled in an appeal
of the last habeas corpus that she
be set free in view of the extended duration of her pretrial imprisonment.
Consequently, the petitioner alleges that the State violated her rights
to personal liberty, due process, humane treatment, and access to a simple
and prompt recourse to have her rights recognized, in accordance with Articles
5, 7, 8, and 25 of the American Convention on Human Rights (hereinafter "the
Convention" or "the American Convention").
The petitioner further maintains that the detention and subsequent
incarceration of Mrs. Levoyer Jiménez for more than five years is due exclusively
to the fact that she is the companion of Hugo Jorge Reyes Torres,
who was accused of being the leader of a powerful gang of drug traffickers
in Ecuador. The petitioner also
alleges that the State violated her right to property, as set forth in Article
21 of the Convention, because the property seized when she was detained has
not yet been returned to her. The
State argues that domestic remedies have not been exhausted.
The Commission has decided to admit the petition and to put itself
at the disposal of the parties with a view to reaching a friendly settlement
based on respect for the human rights recognized in the American Convention.
PROCESSING BY THE COMMISSION
On December 29, 1997, the Commission received the complaint from the
petitioner, and on March 19, 1998, forwarded it to the government. On July 7 and 13, 1998, the Commission received additional
information from the petitioner, which was forwarded to the State in due course.
On July 27, 1998, the Commission received the State's response, which
was forwarded to the petitioner, who was given 30 days in which to submit
its observations. The petitioner's response was received on August 10 and
was forwarded to the Government on September 2.
The latter was given 30 days in which to respond.
On December 10, 1998, the Commission received additional information
from the petitioner, which was forwarded to the State in due course.
From February to December 1999, the Commission made itself available
to the parties so that they could reach a friendly settlement but so far they
have failed to do so.
POSITIONS OF THE PARTIES
Position of the petitioner
According to the information provided by the petitioner, Mrs. Levoyer
Jiménez was detained without a judicial order on June 21, 1992, in "Operación Ciclón" (Operation Cyclone), a police operation
in which a large number of people suspected of being members of a gang of
drug traffickers were arrested. At
the time of her arrest, she was not told why she was being detained.
She was held in solitary confinement for 39 days, during which time
she is alleged to have been subjected to psychological torture to make her
testify. The warrant for her
arrest was issued by the mayor after she was detained, on July 30 and 31,
1992, charging her with the crimes of drug trafficking, acting as a “front”,
illicit enrichment, and asset laundering (conversión
de bienes). In addition,
the criminal court of Pichincha issued an arrest warrant on August 11, 1992,
nearly two months after her arrest.
As a result of that arrest warrant, four sets of proceedings were instituted
against Mrs. Levoyer Jiménez and other persons.
One of the defendants, a Major General in the Army,
was subject to special jurisdiction.
Consequently, the proceedings were removed to the Superior Court of
The President of the Superior Court of Quito (hereinafter called “the
Superior Court”) established jurisdiction for the judicial proceedings in
September and November 1992, and upheld pre-trial detention in the four cases,
and orders for imprisonment were issued on December 1, 1992.
In 1996, the Attorney General of Pichincha issued an opinion, without
accusing Mrs. Levoyer of any of the four charges.
In the proceedings for illicit enrichment, although no charges were
brought by the Prosecutor, the President of the Superior Court ruled that
a plenary be held on the matter on November 22, 1996.
This ruling was appealed and brought before the bench in the Fourth
Division of the Superior Court, which on April 29, 1998, dismissed the proceedings.
In the proceedings for asset laundering, on September 30, 1996, the
President of the Superior Court issued a temporary stay of proceedings and
ruled for legal consultation, which was resolved by the Fourth Division of
the Superior Court on April 29, 1998, also with a ruling of dismissal.
10. In ruling on the legal opinion, the Fourth
Division of the Superior Court ordered the dismissal of the proceedings for
illicit enrichment and asset laundering, on the basis of Articles 76 and 77
of the Narcotics and Psychotropic Substances Act, which stipulate that a prerequisite
for bringing such charges is that a drug trafficking crime must have been
committed, which had not been proven in the case.
The Attorney General’s Office (Ministerio
Publico) filed a motion for reversal of the decision handed down by the
Fourth Division in both cases (illicit enrichment and asset laundering).
As the motion for reversal of judgement was denied, the Prosecutor
filed a motion of fact.
According to the information provided to the Commission, this last
motion was being processed in July 1998.
Consequently, the judgment dismissing the charges of
illicit enrichment and conversion of property was not final.
The petitioner alleges that, according to the jurisprudence of the
Supreme Court on motions for reversal, the filing of such a motion was unlawful
since the Code of Procedure provides that it may only be used against judgments
in the criminal courts when a breach of the law has occurred. Therefore,
the petitioner argues, the remedy may not be used against rulings for dismissal
by a division of the Superior Court, as in the present case.
In the proceedings relating to acting as a “front” for criminals, on
April 29, 1996, the President of the Superior Court ordered that Mrs. Levoyer
be released. On March 23, 1998,
an order to initiate the second phase of proceedings was handed down, which
was appealed. On July 7, 1999, the First Division of the Superior Court upheld
the dismissal of the case and ruled that the property be returned to her upon
judgement being rendered. The
petitioner alleges, therefore, that the right to property has been violated,
since as the charge has been dismissed, there will be no judgment, and, therefore,
that withholding of the property is tantamount to confiscation.
In the proceedings for drug trafficking, on July 19, 1995 a dismissal
was ordered. Upon review, the
First Division of the Superior Court upheld the dismissal on April 16, 1996.
As each of the various proceedings against Mrs. Levoyer was dropped,
orders for her release were issued. However, these orders could not be executed
since the Code of Criminal Procedure requires that all motions for dismissal
be heard by the Superior Court. Accordingly,
one after another, the proceedings were reviewed by different chambers of
the Superior Court of Quito as mentioned above.
In proceedings that involve offenses punishable under the Narcotics
and Psychotropic Substances Act, the defendant must remain in custody for
the duration of the proceedings even though a case may have been dismissed.
The petitioner maintains that for any other offense, the defendant
would have been released before the decision was reviewed.
report the Commission received from the petitioner on December 10, 1998, noted
that, after Mrs. Levoyer was detained, in addition to the four proceedings
mentioned above, the following proceedings were instituted:
for illegal possession of firearms, in which a temporary stay
was ordered on November 7, 1994.
customs proceeding, initiated on March 11, 1994, which was ordered dismissed
on December 22, 1995.
for asset laundering brought by Banco de los Andes, initiated on June
23, 1994, in which a full trial was ordered on January 23, 1998.
for asset laundering brought by Banco Sociedad General de Crédito, initiated
on January 30, 1996. As of July 1998, these proceedings were in the preliminary
In the proceedings for asset laundering brought by Banco de los Andes,
the Second Division of the Superior Court, after several incidental pleas,
referred the case to the associate judges of that same bench, who dismissed
the charges on July 5, 1999. Apparently, the bench found that three cases
for asset laundering had been instituted on the basis of Operation Cyclone,
in violation of the prohibition of double jeopardy.
The petitioner notes that during her detention Mrs. Levoyer filed many
writs of amparo or habeas corpus
in an effort to seek her release, on grounds that her detention was a violation
of the Constitution, the law, and human rights treaties.
Writs were filed on July 26, 1994, on April 3, 1995, in March 1996,
on October 18, 1997, and on November 18, 1997.
All of these motions were filed with the President of the Supreme Court
of Justice, who did not rule on any of them.
Finally, as mentioned earlier, on June 16, 1998, the Constitutional
Court heard an appeal of her final writ of habeas
corpus and ordered that she be released.
On April 15, 1998, a writ of habeas
corpus was filed, requesting that the Mayor of Quito
release Mrs. Levoyer immediately. The petition was denied on April 21, 1998,
a ruling that was appealed on April 24, 1998 before the Constitutional Court.
The Second Division of the Constitutional Court, in a ruling handed
down on June 16, 1998, considered that the terms specified in Law 04
had been exceeded, reversed the Mayor’s decision, and ordered that Mrs. Levoyer
Jiménez be released. The Constitutional
Court noted in its ruling that the exception in the narcotics and psychotropic
substances Act to the application of Article 114(1) of the Criminal Code,
for offenses considered thereunder, had been declared unconstitutional by
that same Court in Resolution Nº 119-1-97 of December 24, 1997. Accordingly, it added, it was no longer in force.
On these grounds, the Court considered the time requirements specified
in Article 114(1) to be met and ordered the release of Dayra María Levoyer
Jiménez, which occurred a few days later.
Mrs. Levoyer Jiménez was released in June 1998, six years after she
had been detained. So far, all
of the charges against her have been dismissed.
The State's position
On July 27, 1998, the State's response was received.
It argues that in the instant case a violation of human rights cannot
be considered to have occurred because domestic remedies have not been exhausted.
It argues that Article 249 of the Code of Criminal Procedure establishes
that, once an indictment has been made, preliminary proceedings are suspended
for five years, during which time new evidence may be presented as to the
defendant’s innocence or guilt. In
addition, Article 252 of the Code provides that, once that period has lapsed,
and provided that the proceedings have not been re-opened, the court shall
issue a ruling of dismissal.
Accordingly, the State considers that since the periods provided for
in Article 249 have not expired, and until preliminary proceedings may be
closed under the terms of Article 252, domestic remedies have not been exhausted.
In this same vein, it notes that in the proceedings for illicit enrichment
a full trial was ordered and, therefore, domestic proceedings have not yet
The State has reported that the following proceedings are ongoing against
Mrs. Levoyer (as of May 14, 1998):
91-92, for illicit enrichment. A
full trial against her, as co-perpetrator, was ordered on November 25,
1996. That order is on appeal before the Fourth Division of the Superior
Court of Quito.
92-92 on charges of being a “front”. A full trial against her, as co-perpetrator,
was ordered on March 23, 1998. It
is on appeal and has been referred for consultation.
93-92 for drug trafficking. A
temporary stay was ordered with respect to the proceedings and to the
accused, on July 19, 1995. The
order has been referred for review and appeal before the First Division
of the Superior Court of Quito.
94-92 for asset laundering and transfer.
The case was dismissed. A
motion for annulment has been brought by the Office of the Public Prosecutor
76-94 for money laundering. A full trial against her, as co-perpetrator,
was ordered on January 20, 1998.
The order is on appeal before the Second Division of the Superior
Court of Quito.
As mentioned earlier, the courts ordered that most of the charges be
ANALYSIS ON ADMISSIBILITY
The Commission now moves on to analyze the admissibility requirements
of the petition established in the American Convention.
Jurisdiction of the Commission ratione
materiae, ratione personae, ratione loci, and ratione temporis.
The Commission has jurisdiction to hear the petitioner's complaint
ratione materiae, ratione personae, ratione loci, and ratione
temporis insofar it concerns violations of Articles 5, 7, 21, 8, and 25 of
the Convention to the detriment of Dayra Maria Levoyer Jiménez, an Ecuadorian
citizen, it is against the State of Ecuador, a State party to the Treaty,
and the violations were allegedly committed on Ecuadorian territory after
the country had ratified the Convention.
With respect to competence ratione
personae, the Ecumenical Council of Human Rights (CEDHU) is a nongovernmental
organization that is legally recognized in Ecuador and, pursuant to Article
44 of the Convention, entitled to file petitions with the Commission.
In view of the foregoing, the Commission is competent to examine the
complaint filed by the petitioner. The Commission, therefore, proceeds to
determine whether the case satisfies the requirements established in Articles
46 and 47 of the American Convention.
Other admissibility requirements of the petition
Exhaustion of domestic remedies
More than five years elapsed from the outset of the judicial proceedings
until submission of the complaint to the Commission, without any judgment
being rendered against the alleged victim.
During that time, Mrs. Levoyer Jiménez remained in pre-trial detention. At this time, all of the charges against the alleged victim
have been dismissed. Therefore, the Commission is of the view, without this
implying any opinion as to the merits of the question, which will be addressed
in due course, that there may have been an unwarranted delay in the judicial
proceedings in this case, that is, one of the exceptions referred to in Article
46(2)(c) of the Convention, whereby petitioners are exempted from the requirement
of exhausting domestic remedies.
The Commission notes that in at least one of the proceedings charges
against the alleged victim were temporarily dismissed.
This implies, according to the information furnished by the State,
that the case will remain open for five years, during which time it could
be reopened if new evidence is presented as to the victim's innocence or guilt.
This possibility leaves the case pending, making it impossible to exhaust
domestic remedies within a reasonable period.
Furthermore, as to the alleged violation of Article 7 of the Convention,
the petitioner maintains a series of writs of amparo and habeas
corpus were filed within domestic jurisdiction throughout the period that
the alleged victim remained in custody.
A ruling was not taken on most of these writs (see paragraph 14).
One last writ of habeas corpus was filed and again dismissed and was appealed to the
Constitutional Court. This action
was resolved once the petition was before the Commission. The Commission is of the view
that, given the number of writs of habeas
corpus filed, the requirement that domestic remedies be exhausted has
In this same vein, it is important to add that the many writs of habeas corpus filed by the petitioner are grounds for determining
not only whether she was deprived of her freedom but also whether an alleged
violation of her right to physical and psychological integrity took place.
Accordingly, in the present case, the petitioner exhausted the remedies
under domestic jurisdiction referred to in Article 5 of the Convention.
Time period for submission
Article 46(1)(b) of the Convention notes that the petition must be
submitted within six months from the time the victim is notified of the final
decision exhausting domestic remedies.
The Commission is of the view that based on the observations made in
the previous paragraph, this requirement does not apply in the present case
in accordance with Article 46(2) of the Convention.
Duplication of procedures and res
The Commission understands that the subject of the petition is not
pending in another international proceeding for settlement, nor is it substantially
the same as one previously studied by this or another international organization.
Therefore, the requirements established in Articles 46(1)(c) and 47(d)
have also been satisfied.
Characterization of the facts
The Commission considers that if the facts related by the petitioner
in her presentation are proven in its analysis of the merits of the case,
they could constitute a violation of rights guaranteed by the Convention.
The petitioner maintained that a violation of Article 5 of the Convention
occurred since the alleged victim was subjected to psychological torture.
The Commission considers that if it is proven that the alleged victim
was kept in solitary confinement for an inordinate period of time that could
constitute a violation of Article 5 of the Convention. As
the Commission maintained in Report 64/99, and in consonance with the Inter-American
Court of Human Rights, “the mere verification that a person has been held
incommunicado for a long period is indicative of the fact that such
person has been subjected to cruel and inhuman treatment.
Accordingly, the Commission finds that with respect to Article 5 the
allegation of being held incommunicado, if proven, could constitute a violation
of the aforesaid article.
With respect to the alleged violation of Article 21 in conjunction
with Articles 8 and 25, the Commission considers that in the present case
proceedings against the alleged victim dragged on for more than five years.
Although most of the proceedings were dismissed, judgment is still
pending in some. The return of
the property requested by the alleged victim is subject to termination of
these proceedings. The petitioner
alleges that pursuant to the domestic law applicable in this case, such property
would not be returned unless a final judgment is rendered.
The petitioner goes on to say that this would not happen if the case
is dismissed, and would thus constitute a violation of Article 21 of the Convention.
A decision on this issue, and on the issue regarding the duration of
the proceedings, presupposes an analysis of the merits of the case. Accordingly, the Commission resolves to postpone the question
of admissibility of the alleged violations of Articles 8, 21, and 25 of the
Convention until its consideration of the merits of the case.
Accordingly, as there is no obvious basis to declare the petition groundless
or out of order, the Commission considers that the requirements set out in
Articles 47(b) and 47(c) of the Convention have been satisfied.
Commission concludes the case is admissible pursuant to Articles 46 and
47 of the American Convention.
Based on the foregoing considerations of fact and law, and without
prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this case admissible with respect to the alleged violations
of Articles 5, 7, 8, and 25 of the American Convention.
To postpone until the report on the merits the question of the admissibility
of the alleged violation of Article 21, in conjunction with Articles 8 and
25, of the American Convention.
3. To notify the petitioner and the
State of this decision.
To continue with its examination of the merits of the case.
To place itself once again at the disposal of the parties with a view
to reaching a friendly settlement based on respect for the rights recognized
in the American Convention, and to invite the parties to state their views
regarding this possibility;
To publish this decision and include it in the 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., March 7, 2000.
Signed by Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman;
Juan Méndez, Second Vice-Chairman; Commissioners: Marta Altolaguirre, Robert
K. Goldman, and Peter Laurie.
* A member of the Commission, Mr. Julio Prado Vallejo, who is an Ecuadorian national, did not take part in the discussion and did not take part in the voting in the present case, in accordance with article 19(2) of the Regulations of the Commission.
Mr. Jorge Hugo Reyes Torres was also detained in what was known as “Operación
Ciclón” (Operation Cyclone).
Article 5(5) of the Code of Criminal Procedure of Ecuador establishes
that "when, any member of a group charged with an offense is subject
to special jurisdiction, all members of the group shall be tried by the
same special court...” In addition, Article 11 of the same Code provides:
"The President of the Supreme Court and the Presidents of
the Superior Courts shall be the investigative judge in those cases of
special jurisdiction which, by law, it falls to them to hear."
One of the persons investigated with Mrs. Levoyer was a Major General
in the Ecuadorian Army. Charges
against officers in the Armed Forces must be tried in another court, that
is special jurisdiction, and, therefore, according to the above-noted
provision, determine that the President of the Superior Court shall have
exclusive jurisdiction over them (see Law on Armed Forces Personnel, Organic
Law of the Judicial Function, and Code of Criminal Procedure).
The offences of which the officers in the Armed Forces were charged
meant that they had to be tried outside the Courts, in other words under
a special jurisdiction. Accordingly,
according to the law, the President of the Court of Appeals must hear
the reasons for the detention in order to rule on the matter (Armed Forces
Personnel Act, Judicial Functions Act, and the Code of Criminal Procedure).
A motion of fact is provided for in Article 395 of the Code of Criminal
Procedure as follows: “The
motion will be granted when a magistrate or criminal court has denied
a motion filed by the deadlines established and as specified in this Code”.
Accordingly, in denying the motion for reversal, a motion of fact
must be filed so that the higher court, the Supreme Court in the present
case, can rule on the merits of the motion.
5 Article 373 of the Code of
Criminal Procedure provides: "The
motion for reversal shall be admissible before the Supreme Court of Justice
when the law has been violated in a judgment, either because it rules
expressly contrary to the wording of the law; or it has been falsely applied;
or, because it has been wrongly interpreted."
 Article 93 of the Constitution of Ecuador provides that habeas corpus be filed "... with the mayor of the jurisdiction in which the person is charged, or before an individual acting in his stead...."
 Law 04 amended the Criminal Code, adding Article 114(1), which establishes: "persons who are detained, without receiving an order of dismissal or that the second stage of proceedings be opened, for a time equal to or greater than one-third of the time established by the Criminal Code as the maximum sentence for the offense of which they were accused, shall be released by the judge hearing the proceedings. Similarly, persons who are detained, without having received a judgment, for a period equal to or greater than one-half of the time specified in the Criminal Code as the maximum penalty for the offense of which they were accused, shall be released immediately by the criminal court hearing the proceedings."
Article 5(2) of the Convention establishes that “No one shall be subjected
to torture or to cruel, inhuman, or degrading punishment or treatment.
All persons deprived of their liberty shall be treated with respect
for the inherent dignity of the human person.”
12 The Code of Criminal Procedure of Ecuador makes provision for res judicata in the case of final dismissal but not in the case of provisional dismissal. The petitioner alleges that even in the event of final dismissal this would not be a final judgement and therefore the property would never be returned. The relevant section of Article 110 of the Narcotics and Psychotropic Substances Act states that “Should the accused whose property has been seized be acquitted, the property will be returned to their owner...when the judge so orders once the precautionary measures have been lifted.”