Dayra María Levoyer Jiménez v. Ecuador, Case No. 11.992, Report No. 66/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 456 (2001).
In a petition received by the Inter-American Commission on Human
Rights (hereinafter "the Commission" or the "IACHR")
on December 29, 1997, the Comisión Ecuménica de Derechos Humanos
[Ecumenical Commission for Human Rights] (hereinafter called the petitioner")
filed a complaint against the State of Ecuador (hereinafter called "Ecuador"
or "the State") for violating the human rights of Mrs. Dayra María
Levoyer Jiménez. The petitioner maintains that Mrs. Levoyer Jiménez was
detained on June 21, 1992, without judicial order and held (incommunicado)
for 39 days, during which time she was subjected to psychological torture.
She was held, without a conviction being rendered, for six years,
when finally all of the charges against her were dismissed.
During her detention, numerous writs of habeas
corpus were filed unsuccessfully.
Finally, on June 16, 1998, the Constitutional Court ruled in an appeal
on the last habeas corpus
that she be set free in view of the extended duration of her pretrial
imprisonment. 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, because the
property seized when she was detained has
not yet been returned to her.
Consequently, the petitioner alleges that the State violated her
rights to humane treatment, personal liberty, due process, property, and
access to simple and prompt recourse to have her rights recognized, in accordance
with Articles 5, 7, 8, 21, and 25 of the American Convention on Human Rights
(hereinafter "the Convention" or "the American Convention").
The State argues that domestic remedies have not been exhausted.
4. At its 106th regular session, the Commission in Report 29/00 (7/03/00) declared the petition of alleged violations of Articles 5, 7, 8, and 25 of the American Convention admissible. The Commission also decided to postpone for the report on the merits its decision on the admissibility of an alleged violation of Article 21 in conjunction with Articles 8 and 25 of the Convention. Following an examination of the facts of the case, the Commission concludes in the present report that the Ecuadorian State has violated Articles 5, 7, 8, and 25 of the American Convention.
PROCESSING BY THE COMMISSION
On March 19, 1998, the Commission opened Case 11.992. After substantiating
that the proper procedures were followed, the Commission issued Report 29/00
on March 7, 2000 on admissibility, in which it determined that it was competent
to examine the merits of the case. In its report, the Commission also indicated
that it had decided to postpone for the report on the merits its findings
on the admissibility of the alleged violation of Article 21 in conjunction
with Articles 8 and 25 of the Convention.
In February and December 1999, before approving the report on admissibility,
the Commission made itself available to the parties so that they could reach
a friendly settlement. In report
29/00, the Commission again made itself available to the parties so that
a friendly settlement could be reached in accordance with the principles
established in the American Convention.
In a letter dated April 7, 2000, the petitioner indicated that all
previous attempts at a friendly settlement had been unsuccessful, and it
therefore wanted the Commission to continue with its examination of the
merits of the case. The State has not expressed its views on this point.
POSITIONS OF THE PARTIES
Position of the petitioner
According to the complaint lodged with the Commission, Mrs. Levoyer
Jiménez was detained without a judicial order on June 21, 1992, in Operation
Cyclone ("Operación Ciclón), 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 in order
to force her to make a statement.
The warrant for her arrest was issued by the police chief 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 judge of the criminal court of Pichincha issued
an arrest warrant on August 11, 1992, nearly two months after her arrest.
The petitioner alleges that the absence of a judicial warrant and the lack
of compliance with the time periods and requisites established by law constitute
an arbitrary and illegal detention in violation of Article 7 of the American
Convention. The petitioner
further alleges that incommunicado detention for 39 days was a violation
of the period established in the domestic legislation and, therefore, of
Article 7(2) of the Convention, as well as of Article 5 of the same treaty
since it constitutes cruel, inhuman, and degrading treatment.
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 Quito. 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 the detention orders were issued on December 1, 1992.
In the proceedings for illicit enrichment, although no charges were
brought by the Prosecutor, the President of the Superior Court ruled that
the proceedings be initiated 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 the proceedings and sent up for consultation,
which was resolved by the Fourth Division of the Superior Court on April
29, 1998, which again dismissed the proceedings.
In ruling on the legal consultation,
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 the
crime of drug trafficking must have been committed, which had not
been proven in the case.
The Attorney Generals Office (Ministerio Público) filed
a motion for cassation (annulment) of the decision handed down by the Fourth
Division in both cases (illicit enrichment and
As the motion for annulment of the judgment 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 in the two cases
enrichment and asset laundering was not final.
The petitioner alleges that, according to the jurisprudence of the
Supreme Court on motions for annulment, the filing of such a motion is unlawful
since the Code of Procedure provides that it may only be used against judgments
in the criminal courts when a violation 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. The State
has not responded to these assertions.
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 proceedings was handed
down and 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 judgment 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 the withholding of the property is, therefore, 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 must be sent up for consultation to the Superior
one after another the proceedings
were reviewed by different divisions 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 dismissals were sent up for consultation.
14. The 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:
Proceedings for illegal
possession of firearms, in which a provisional
dismissal was ordered on November
A customs proceeding, initiated on March 11, 1994, which was
ordered dismissed on December 22, 1995.
Proceedings 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
Proceedings for asset laundering
brought by Banco Sociedad General de Crédito, initiated on January
30, 1996. A ruling of provisional
dismissal of these proceedings was issued in 1999 and they have now
been sent up for consultation.
In the proceedings for asset laundering brought by the 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 issued
a ruling of (definitive) dismissal of the charges
on July 5, 1999. Apparently,
the bench found that three cases for asset laundering had been instituted
arising out 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
violated 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.
Consequently, the petitioner claims that the filing of four writs
of habeas corpus without success constitutes lack of access to simple
and prompt recourse and therefore violates Article 25 of the Convention.
On April 15, 1998, a writ of habeas
corpus was again 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. It reversed
the Mayors 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 as 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
was detained. All charges against
her have now been dismissed. The
petitioner alleges that preventive detention for a period of five years
contravenes Article 7(5) of the Convention because it is excessive, and
also violates the principle of the presumption of innocence.
It further alleges that the duration of the proceedings against her,
which are not yet fully concluded, have exceeded the reasonable time established
in Article 8(1) of the American Convention.
The petitioner also alleges that in the instant case there has been
a violation of Article 21 of the Convention since the property seized when
Mrs. Levoyer Jiménez was detained has not yet been returned to her.
The State's position
On July 27, 1998, the State's response was received.
It maintains that in the instant case a violation of human rights
cannot be considered to have occurred because domestic remedies have not
The State argues that, according to Article 249 of the Code of Criminal
Procedure, once a provisional dismissal has been issued, the preliminary
proceedings are suspended for five years, during which time new evidence
may be presented as to the defendants 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 (definitive) dismissal.
the State considers that since the periods provided for in Article 249 have
not expired, and until the proceedings are 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 concluded.
The State has reported that the following proceedings are ongoing
against Mrs. Levoyer (as of May 14, 1998):
Proceedings 91-92, for illicit enrichment.
The proceedings were initiated against her, as co-perpetrator,
on November 25, 1996. That order is on appeal before the Fourth Division of the Superior
Court of Quito.
Proceedings 92-92 on charges of being a front.
The proceedings were initiated against her, as co-perpetrator,
on March 23, 1998. It has
been appealed and sent up for consultation.
Proceedings 93-92 for drug trafficking.
A ruling of provisional dismissal was issued with respect to
the proceedings and to the accused, on July 19, 1995. The ruling has been sent up for consultation and appeal to
the First Division of the Superior Court of Quito.
Proceedings 94-92 for asset laundering and transfer.
The case was dismissed.
A motion for reversal was filed by the Office of the Public Prosecutor
Proceedings 76-94 for money laundering.
The proceedings were initiated against her, as co-perpetrator,
on January 20, 1998. The
order is on appeal before the Second Division of the Superior Court
earlier, the courts have ruled that most of the charges be dismissed.
ANALYSIS OF THE MERITS
The Commission now moves on to determine in the present case whether
the rights of personal liberty and humane treatment, judicial protection,
the right to property, and access to a simple and prompt recourse, as established
in Articles 1, 5, 7, 8, 21, and 25 of the American Convention, have been
The right to personal liberty and humane treatment
The legality of the detention - Violation of Article 7(2) and 7(3)
According to the information and documentary evidence furnished by
the parties, Dayra María Levoyer Jiménez was detained on June 21, 1992,
at approximately 1:00 p.m. by a group of 15 individuals in civil dress and
uniforms, who did not identify themselves as police officers, and did not
have in their possession an arrest warrant issued by a competent authority.
On July 30 and 31, 1992, the Police Chief issued a warrant for her
arrest on charges of drug trafficking, acting as a front, illicit
enrichment, and asset laundering.
From August 11 to 13, 1992, the four judges to whom it fell to hear
each of the cases, issued the respective warrants for arrest.
The petitioner alleges that these facts constitute an illegal and
arbitrary detention in violation of Article 7(2) and 7(3) of the American
Convention and Ecuadorian law.
In its response, the State did not specifically address the detention
without a judicial order but maintained in general terms that: The
national courts have acted within their competence in the proceedings
against the petitioner, in what was known as Operation Cyclone, with utmost
diligence in reaching a decision on the different and complex matters that
cases of this kind entail
That is why this Commission must refer to
the proceedings to establish that the rights relating to due process and
personal liberty of the petitioner have been respected, in the manner established
by the Commission and the Court. 
Pursuant to Article 7(2) and (3) of the American Convention:
No one shall be deprived of his physical liberty except for the reasons
and under the conditions established beforehand by the constitution of the
State Party concerned or by a law established pursuant thereto.
No one shall be subject to arbitrary arrest or imprisonment.
It is therefore fitting to establish, first, what are the conditions
established beforehand by Law, whether such conditions are consistent
with the provisions of the Convention and lastly whether such provisions
were observed in the present case.
The Commission now turns to an examination of the conditions established
under domestic legislation for making an arrest.
Article 22(19)(h) of the Ecuadorian Constitution, in effect at the
time of the detention, set forth the following:
one shall be deprived of his liberty except by written order of the competent
authority, as appropriate, for the period and according to the procedures
prescribed by law, save in the case of flagrante
delicto, nor may he be held without a trial order for more than twenty-four
hours. In either case, he may not be held incommunicado
for more than twenty-four hours.
Moreover, Article 172 of the Code of Criminal Procedure provides
for pre-trial detention in the following instances: before criminal
proceedings begin, the judge hearing the case may order the detention of
an individual on the basis of personal acquaintance, or oral or written
reports by officers of the National or Judicial Police or by any other person
Ecuadorian law further establishes, in Article 56 of the Code of
Criminal Procedure, that detention without a judicial warrant may only occur
in the case of an individual caught in the act of committing a crime or
when a serious presumption of responsibility exists. Paragraph 6 of the
same Article 56 establishes that one of the functions of the Judicial Police
order and execute the temporary detention of any individual caught in the
act of committing a crime or when a strong presumption of responsibility
exists, and to bring the said individual before the competent examining
magistrate (juez de instrucción) within the following forty-eight
The State has not alleged or presented evidence demonstrating that
Mrs. Levoyer Jiménez was apprehended in flagrante
delicto, a circumstance that would justify a detention without a judicial
order. The Commission understands
that the detention took place in accordance with the principle of serious
presumption of responsibility.
It is appropriate to examine the standard of serious presumption
of responsibility and how it applies to Ecuadorian law. Although local
courts have the authority to determine the constitutionality of the provisions
of domestic law, the Commission is empowered to analyze such provisions
to determine whether their wording or application may be inconsistent with
the provisions of the Convention.
As noted earlier, the Ecuadorian Constitution formally establishes
the circumstances required for making an arrest, that is by order of a competent
authority, save in the case of flagrante
delicto. The Constitution
provides only one exception to the rules, and that is the case of an individual
in the act of committing a crime, where a warrant issued by a competent
authority is not necessary in order to make an arrest.
The Code of Criminal Procedure, however, departs from the Constitution
by establishing additional grounds for an arrest without a warrant. The Commission is of the view that the law does not set forth
the objective circumstances that would constitute a serious presumption
of responsibility, leaving the definition to the discretion of the
police officer making the arrest.
Moreover, the Commission considers that this provision also contravenes
the Convention since it leaves the decision as to the appropriateness of
the arrest to the subjective judgment of the police officer carrying out
the arrest. The Commission understands that the requirement for a statutory
description of a crime set out in the obligation to establish beforehand
the conditions of arrest, requires that the law establish precisely and
in specific detail the reasons for which, and the conditions in which, an
arrest may be made. Such a
criterion is not satisfied by a vague and general prescription such as serious
presumption of responsibility.
Accordingly, the Commission considers that Mrs. Levoyer Jiménez was
arrested on June 21, 1992, without a judicial warrant in circumstances not
constituting an exception to the requirement set forth in the Constitution. According to the information presented in the instant case,
the first arrest warrant was issued by the Chief of Police on July 30, 1992,
or 39 days after the arrest was made.
The first judicial arrest warrant was issued by a Judge on August
11, 1992, or 51 days after her arrest.
The State has not presented any document to contradict these assertions.
Therefore, it may be concluded that her arrest was not made on the
grounds or in the circumstances provided for in the domestic legislation,
and that Mrs. Levoyer was arbitrarily detained in violation of Articles
7(2) and 7(3) of the American Convention.
As indicated earlier, the Commission notes that the domestic legislation
establishes a maximum period for detention without being charged.
Article 22(19)(h) of the Ecuadorian Constitution states that such
a period may not exceed 24 hours. On this basis, the Commission finds that
Mrs. Levoyer Jiménez was detained on June 21, 1992, but having been transferred
to a detention center on July 30, 1992, was held incommunicado
at police stations, for a period of 39 days.
This was a violation of Article 7(2) of the American Convention since
it was not carried out pursuant to law.
In other words her detention w/o being charged violated the provisions
of Ecuadorian law which establish that such a period may not exceed 24 hours.
Lastly, the Commission wishes to point out that the evidence produced
by the parties shows that Mrs. Levoyer Jiménez remained in incommunicado
detention in police stations. The
Inter-American Court of Human Rights has ruled that a police station cannot
be considered a suitable facility for persons in pre-trial detention.
of personal liberty Violation of Articles 7(5) and 2
According to the documentation provided by the parties, Mrs. Levoyer
Jiménez was detained on June 21, 1992, and remained in temporary detention
until June 1998. Also, when she was initially detained, she was held for
51 days without being brought before a judicial authority. The petitioner
alleges that these events constitute a violation of Article 7(5) of the
Article 7(5) of the American Convention states:
person detained shall be brought promptly before a judge or other officer
authorized by law to exercise judicial power and shall be entitled to trial
within a reasonable time or to be released without prejudice to the continuation
of the proceedings. His release may be subject to guarantees to assure his
appearance for trial.
This provision reflects the States duty to guarantee the rule
of law and the determination of criminal responsibility through the judiciary
consistent with the obligation to guarantee the fundamental rights of individuals
accused of breaking the law. It
is the States task to strike a balance between the general interest
of preventing a crime and of giving victims effective access to justice,
and the interest, also general, of ensuring that the guarantees that the
law itself provides in favor of those accused of crimes are safeguarded.
In fact, the principle of innocence implies that if it is necessary
to deprive an accused person of personal liberty in the course of judicial
proceedings, the legal position of the accused continues to be one of innocence.
It is understood that Article 7(5) of the American Convention requires that
once a trial has begun and the accused has been detained, if it is necessary
to deprive him of his liberty, the public trial should take place, if not
immediately, at least within a very short time
 After this brief interlude, the State has the right to continue
the proceedings but the provision in this Article calls for the accused
to be released.
This principle is more evident still in a case where a dismissal
of the proceedings comes into play, although this is not carved in stone
when a consultation is pending. In
fact, the principle of innocence requires that the temporary deprivation
of a person's liberty assumes that it is highly probable that there
exists a punishable act attributable to the accused or, put in another way,
the likelihood of a conviction
Obviously, the existence
of a dismissal distances the State from the certainty of guilt that justifies
the maintenance of a measure of preventive detention.
As a general principle, individuals accused of a criminal offense
may have their liberty restricted only after judgment has been rendered
in a trial during which they have had the opportunity to defend themselves.
The proceedings for determining the innocence or guilt of the accused must
be substantiated within a reasonable period so as not to disregard their
right to security and liberty. The restriction of such rights beyond the
parameters established by law and the margin of what is reasonable on the
pretext of ensuring an allegedly efficient investigation implies a presumption
that the persons who are in detention as a result of such investigation
A presumption of this kind runs contrary not only to the letter of
the American Convention, but also to the general principles of law that
the Treaty has codified and which are also contained in Ecuadors domestic
legislation. The obligation of the judiciary to make every effort to comply
with these provisions and to strike a balance in protecting the different
interests involved, which only appear to be opposed, is an essential part
of the rule of law: the effective functioning of a judicial system that
all individuals can trust, regardless of the circumstances.
In the present case, the State has not provided any evidence to justify
that the deprivation of liberty was imposed based on the possibility of
flight or the severity of the offense or penalty.
Article 7(5) of the Convention requires that the trial in the context
of criminal proceedings take place within a reasonable time as a guideline
for restricting personal liberty.
Determining until when this restriction can be reasonably extended
calls for a case-by-case analysis. To this end, the Commission has adopted a test, whereby
it must be determined, first, whether the deprivation of liberty without
a conviction is justified in the light of relevant and sufficient criteria,
determined objectively and reasonably by preexisting legislation; and second,
whether the judicial authorities have acted with due diligence in the advancement
of the judicial proceedings. Should
it be found that the detention and the duration of the proceedings are not
justified, the accused must be set free, at least provisionally
and that is why measures may be adopted to guarantee his appearance in court.
As to the content of the criteria of relevance and sufficiency, it
is important to reiterate that, in principle, the provisional loss of personal
liberty is justified only with respect to the possibility that the person
will escape or will disregard other measures restricting his or her personal
liberty that may be adopted to ensure his or her appearance in court or
with regard to the danger he or she poses.
The seriousness of the offense and the severity of the sentence are
factors that may be taken into account in evaluating the possible risk that
the accused may try to evade
justice. The deprivation of liberty without a conviction, however, should
not be based exclusively on the fact that the detainee has been accused
of a particularly objectionable offense from the standpoint of society. The adoption of a precautionary measure in the form of deprivation
of liberty should not became a substitute for incarceration.
In the present case, it has not been expressly alleged nor has evidence
been produced to demonstrate that Mrs. Levoyer Jimenez resorted to procedural
mechanisms established by law for the purpose of obstructing the proceedings.
The conduct of the judicial authorities will be examined in light
of the procedural norms in force, in analyzing whether the right to a fair
trial within a reasonable period, as established in Article 8(1) of the
Convention, has been violated.
Over and above the reasonableness of the preventive detention, in
this case domestic law sets objective parameters as regards duration.
In fact, Ecuador is one of those countries that establishes a maximum
period of preventive detention in its domestic legislation.
Thus, Article 114 of the Criminal Code of Ecuador, in effect when
Dayra María Levoyer was detained, establishes that:
who, having been kept in detention for a time equal to or greater than one
third of the period established in the Criminal Code as the maximum sentence
for the offense with which they are charged, have neither had their case
discontinued nor been committed to trial, shall be immediately released
by the judge hearing the case.
who, having been kept in detention for a time equal to or greater than one
half of the period established in the Criminal Code as the maximum sentence
for the offense with which they are charged, have not been sentenced, shall
be released immediately by the criminal court hearing the case.
provisions do not include persons charged with offenses under the Narcotics
and Psychotropic Substances Act.
The Commission notes that the domestic law provides for four to eight
years of imprisonment for the offenses of asset laundering, transfer of
assets, and acting as a front.
Levoyer Jiménez was detained on June 21, 1992, and was kept in preventive
detention for more than six years, a period equivalent to more than one
third and more than one half of the maximum corresponding sentences.
However, the proceedings against Mrs. Levoyer Jiménez came within
the exception provided in the last sentence of Article 114 of the Criminal
Code of Ecuador and thus she was unable to benefit from the maximum periods
of preventive detention established in the legislation.
This exception, however, has now been invalidated both internally
and internationally. In a judgment rendered on November 17, 1997, in the
Suárez Rosero Case, the Inter-American Court declared that the wording of the final
paragraph of Article 114 of the Criminal Code of Ecuador was a violation
de jure of the obligation contained
in the Convention to adopt the necessary measures in domestic law to render
effective the right to personal liberty established in Article 7(5) of the
As the Inter-American Court has stated, although domestic law establishes
objective conditions for the release of individuals imprisoned without a
sentence, the exception established in the final paragraph of Article 114
deprives an entire category of persons in detention of the enjoyment of
a right solely on the basis of the offense with which they are charged.
Moreover, as reported to the Commission in the present case, on December
24, 1997, a Plenary Session of the Constitutional Court of Ecuador declared
that the last part of Article 114 of the Criminal Code was unconstitutional.
This declaration made it possible to apply the maximum period of preventive
detention to cases such as that of Mrs. Levoyer Jiménez.
As to the parameters of Article 7(5) of the Convention, the Commission
has established that whenever preventive detention is extended beyond the
period stipulated in domestic law, this should be considered prima
facie illegal, regardless of the nature of the offense in question and
the complexity of the case. In such circumstances, the burden of proof in
justifying the delay rests with the State.
In the instant case, the declaration that the last part of Article
114 was unconstitutional did affect the deprivation of liberty, until six
months later. In fact, on June
16, 1998, Mrs. Levoyer Jiménez was released as a result of a decision on
one of the many writs of habeas corpus
filed. At that time, the Second Division of the Constitutional Court considered
the terms of preventive detention established in the Criminal Code to have
been fulfilled through the application of the precedent noted. Consequently,
for a period of six months, Mrs. Levoyer Jiménez remained in preventive
detention, without any domestic law justifying her detention, in direct
violation of the norm contained in Article 7(5) of the Convention, which
establishes that every individual must be judged within a reasonable time
or be set free, as well as Article 7(2) which stipulates that detention
beyond the period specified in domestic law constitutes illegal detention.
Moreover, the Commission concludes that although the exception contained
in Article 114 of the Ecuadorian Criminal Code was declared unconstitutional
on December 24, 1997 (a ruling which benefited all individuals accused of
offenses under the Narcotics and Psychotropic Substances Act), the fact
that Dayra María Levoyer Jiménez was not released until six months after
this ruling was made, is a violation of Article 2 of the American Convention
because the State did not adopt the adequate measures under domestic law
to render effective the right contained in Article 7(5) of the American
Lastly, the fact that Mrs. Levoyer Jiménez was not arraigned in Court
immediately after she was detained is a further violation of Article 7(5).
detention, personal liberty, and Habeas
Corpus Violation of Articles 7(6) and 25
The petitioner maintained that, when she was detained, Mrs. Levoyer
Jiménez was taken to the former SIC facilities, where she was kept incommunicado
in an underground cell for 39 days. In its submission on the merits of the
case, on May 18, 2000, the petitioner alleged that Mrs. Levoyer Jiménezs
incommunicado detention lasted from her detention on June 21, 1992,
at the Police Station, until July 30, 1992, the date on which she was taken
to a prison. The State did
not dispute this assertion in its response.
The Inter-American Court has established that:
detention is an exceptional measure the purpose of which is to prevent
any interference with the investigation of the facts. Such isolation must
be limited to the period of time expressly established by law. Even in that
case, the State is obliged to ensure that the detainee enjoys the minimum
and non-derogable guarantees established in the Convention and, specifically,
the right to question the lawfulness of the detention and the guarantee
of access to effective defense during his incarceration.
Article 28 of the Constitution of Ecuador provides that:
person who believes that he is being unlawfully deprived of his liberty
may seek the remedy of habeas corpus. He may exercise this right himself or through another
person, without the need for a written request, before the Mayor, under
whose jurisdiction he finds himself or whoever is serving as Mayor.
The municipal authority shall order immediately that the accused
appear before him, and the order for the deprivation of liberty will be
While she was held incommunicado,
Mrs. Levoyer Jiménez did not have the opportunity to have her detention
reviewed by a court. In addition, after her period in incommunicado
detention was over, she presented numerous writs of habeas corpus without success. Although access to recourse does not
imply that a favorable result is guaranteed,
the right of access to a fair trial in this case required that a judge review
the reasons for the detention and whether it was consistent with international
law, something that did not occur when any of the writs of habeas
corpus were filed.
Accordingly, the Commission finds that Mrs. Levoyer Jiménezs
incommunicado detention constituted a violation of Article 7(6) of
the American Convention since it prevented the person detained from having
contact with the outside world and did not allow her to exercise the remedy
of habeas corpus.
The petitioner further alleges that the lack of a response or the
delay in responding to the writs of habeas
corpus filed in the present case violates the guarantees provided in
Articles 7(6) and 25 of the American Convention. The State has not responded
expressly to this allegation.
Article 7(6) of the Convention provides that:
who is deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness
of his arrest or detention and order his release if the arrest or detention
is unlawful. In States Parties whose laws provide that anyone who believes
himself to be threatened with deprivation of his liberty is entitled to
recourse to a competent court in order that it may decide on the lawfulness
of such threat, this remedy may not be restricted or abolished. The interested
party or another person in his behalf is entitled to seek these remedies.
Article 25 of the Convention states that:
has the right to simple and prompt recourse, or any other effective recourse,
to a competent court or tribunal for protection against acts that violate
his fundamental rights recognized by the constitution or laws of the state
concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.
Article 458 of the Code of Criminal Procedure establishes that whenever
an individual who has been detained applies to a competent court to request
release, the judge must immediately order the appearance of the individual
and after evaluating the necessary information, is required to decide on
the request within the next 48 hours.
The guarantee of access to simple and prompt recourse provided in
the Convention is not satisfied by the mere formal existence of suitable
remedies to ensure an order for release. The Court has noted that such remedies
must be effective given their purpose of obtaining a prompt decision on
the question of the legality of the arrest or the detention.
These rights constitute one of the basic pillars of the rule of law
in a democratic society.
The documentary evidence attached to the file indicates that the
petitioner repeatedly appeared on behalf of Mrs. Levoyer Jiménez before
the competent judges with the request that the precautionary measure be
lifted or that her illegal detention be terminated.
In each case, with the exception of the decision of June 22, 1998,
which ordered her release, the writs of habeas
corpus were ignored or denied with delay.
With respect to Article 25 of the American Convention, the Court
ruled as follows in the Suárez Rosero
25 of the American Convention provides that everyone has the right to simple
and prompt recourse, or any other effective recourse, to a competent court
or tribunal. The Court has ruled that this provision constitutes one of
the fundamental pillars not only of the American Convention, but also of
the very rule of law in a democratic society in the sense of the Convention.
25 is closely linked to the general obligation contained in Article 1(1)
of the American Convention, in assigning protective functions to the domestic
law of States Parties. The purpose of habeas
corpus is not only to ensure respect for the right to personal liberty
and physical integrity, but also to prevent the person's disappearance or
the keeping of his whereabouts secret and, ultimately, to ensure his right
to life. (Castrillo Páez Case,
Judgment of November 3, 1997. Series C No. 34, paras. 82 and 83)..
Therefore, the Commission, having weighed the evidence furnished
by the parties, concludes that Dayra María Levoyer Jiménezs right
to a simple and prompt recourse in order to protect her basic rights, pursuant
to Articles 7(6) and 25 of the American Convention, was violated.
In addition, the Commission considers it necessary to examine the
provisions of Article 28 of the Ecuadorian Constitution, transcribed above,
which provide that the right of habeas
corpus be modified to conform to the provisions of the American Convention.
Article 7(8) of the Convention clearly states that: Anyone who is
deprived of his liberty shall be entitled to recourse to a competent
court, in order that the court may decide without delay on the lawfulness
of his arrest or detention (emphasis added).
However, the Ecuadorian Constitution establishes that the Mayor,
as the head of the municipal administration,
is the one who decides
on the legality or illegality of an arrest.
The review of the legality of a detention implies confirming, not
only formally but also substantively, that the detention conforms to the
requirements of the judicial system and that it does not violate any of
the detained persons rights. That such confirmation is carried out
by a judge, invests the proceeding with certain guarantees that are not
duly protected if the decision is in the hands of an administrative authority,
who lacks the proper legal training and the authority to exercise judicial
The danger in having decisions of this kind left in the hands of
a municipal authority has been noted previously by the same Ecuadorian Constitutional
Court, which maintained that:
lawfulness of the detention is an important aspect of the remedy of habeas
corpus, and this is what must be examined; not the apparent lawfulness
but the true lawfulness, in substance or in form [emphasis in the original].
In most cases, Mayors, most probably because
they are unaware of constitutional provisions must limit themselves
to verifying whether the person detained is present at the order of a judge
and whether the latter has issued, even illegally and after the statute
of limitations has passed, an order of preventive detention, and solely
on this basis after a hearing denies the recourse of habeas corpus, which in substance implies ignorance of the significance
of the right to liberty, as an important constitutional guarantee [emphasis
This constitutional provision violates Article 7(6) of the American
Convention. The Commission considers it essential for the State of Ecuador
to take the necessary steps to reform its legislation in this area as well
as to take whatever action is necessary to implement this legislation immediately.
detention. Cruel, inhumane, and degrading treatment. Violation of Article
The petitioner also alleged that the prolonged duration of the state
of incommunicado detention to
which Mrs. Levoyer Jiménez was subjected constituted cruel and inhumane
treatment pursuant to Article 5(2) of the American Convention.
This Article states:
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.
The Inter-American Court has considered that the mere fact that a
person has been deprived of any communication with the outside world allows
it to conclude that such person was subjected to cruel and inhuman treatment,
and even more so when it is proven to be in violation of domestic law.
Hence, the Inter-American Court has maintained that:
of the reasons that incommunicado
detention is considered to be an exceptional instrument is the grave effect
it has on the detained person. Indeed, isolation from the outside world
produces moral and psychological suffering in any person, places him in
a particularly vulnerable position [
Therefore, based on its assessment of the evidence presented by the
parties, the Commission concludes that the prolonged incommunicado
detention to which Dayra María Levoyer Jiménez was subjected was a violation
of the right established in Article 5(2) of the American Convention.
Respect for judicial protection
The petitioner has indicated that in the present case the State was
unable to guarantee Mrs. Levoyer Jiménezs fundamental rights from
the time she was detained in June 1992, and that the guarantees established
in Article 8 of the American Convention were violated. In its admissibility
report, the Commission maintained that
a decision on 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 treatment of the merits of the case
The Commission turns now to an examination of the facts in light
of the guarantee of a trial within a reasonable period and the general principles
of a presumption of innocence and non
bis in idem, as expressed in the American Convention.
The determination of guilt within a reasonable time - Violation of
The petitioner maintained, during the instant case, that the delay
in the proceedings against Mrs. Levoyer Jiménez violated her right to be
tried within a reasonable period.
Article 8(1) of the American Convention states:
person has the right to a hearing, with due guarantees and within a reasonable
time, by a competent, independent, and impartial tribunal, previously established
by law, in the substantiation of any accusation of a criminal nature made
against him [
The purpose of the principle of reasonable time to which
this Article refers is to prevent persons accused of an offense from remaining
in that situation indefinitely. In criminal matters, the time covers the
entire proceeding including any appeals that may be filed.
As to whether the duration of a case is reasonable, in the jurisprudence
of the Commission and the Inter-American Court, the reasonableness of the
duration of a case has been developed to mean that it must be evaluated
in light of the three following criteria: the complexity of the matter,
the procedural activity of the individual concerned, and the conduct of
the judicial authorities.
With respect to the duration of proceedings, the State maintained
in its response of January 26, 2000, that:
reasonableness of a measure or a period needs to be evaluated in its own
specific context, and the State has resolved this case, within a period
in keeping with the type of trial involved, within the scope of the possibilities
at its disposable. Accordingly, the State of Ecuador cannot be accused of
delaying the decision in the matter of Mrs. Dayra María Levoyer Jiménez,
when, despite its complexity, it has moved rapidly through the competent
tribunals. Given the fact that the periods within which the State acted
to resolve the domestic proceedings are within the limits of reasonableness
established by the Court and the Commission, it cannot be charged with having
violated the guarantee established in Article 8.1.
The Commission is of the view that the States assertion is
not sufficient to justify the reasonableness of the period. In fact, the
State limits itself to indicating what, in its judgment, are the requirements
of reasonable time, and concludes that in the instant case the period was
effectively reasonable without providing any grounds that would lead to
such a conclusion.
In the present case, the detention of Mrs. Levoyer Jiménez on June
21, 1992, marks the beginning of multiple proceedings based on the same
facts and evidence. According to the information furnished to the Commission,
this case has not yet concluded.
The Commission is of the view that the nearly eight years that have
elapsed since the investigation began is well beyond the principle of reasonable
time within which to resolve a case, especially in light of the fact that
according to Ecuadorian law even when a provisional dismissal has been issued,
the case remains open for six years, a period during which the investigation
may be reopened if fresh evidence is produced.
situation is exacerbated when it is considered that to date proceedings
against the accused have been dismissed in all of the cases that have concluded.
Therefore, the Commission, having weighed the evidence furnished
by the parties, concludes that the State has violated Dayra María Levoyer
Jimenezs right to be tried within a reasonable time, in accordance
with Article 8(1) of the American Convention.
The principle of presumption of innocence - Violation of Article
The petitioner maintains that depriving Mrs. Levoyer Jiménez of her
liberty is a violation of the principle of presumption of innocence established
in the American Convention. It notes that in the present case the imposition
of preventive detention for an indefinite period was tantamount to anticipating
The State has not presented its position on the principle of presumption
of innocence in the instant case.
Article 8(2) of the American Convention states that:
person accused of a criminal offense has the right to be presumed innocent
so long as his guilt has not been proven according to law.
The Inter-American Court has ruled that the very purpose of these
judicial guarantees is founded upon the principle that a person is innocent
until proven guilty in a final judicial decision.
the universally accepted general principles of law prohibit anticipating
the punishment before sentencing.
Ignoring these rules would run the risk, as in the instant case,
of restricting for an unreasonable time the liberty of a person whose guilt
has not been proven. It should be recalled that in this case Mrs. Levoyer
Jiménez was deprived of her liberty for a period that exceeded one half
the maximum penalty established for the offense of which she was accused
and acquitted, and she continued to be detained even after her acquittal
had been upheld.
Having considered the evidence presented by the parties, the Commission
concludes, in the case of Dayra María Levoyer Jiménez, that the Ecuadorian
State has violated the principle of presumption of innocence enshrined in
Article 8(2) of the American Convention.
Non bis in idem - Violation
of Article 8(4)
In its submission of May 18, 2000, the petitioner alleged that the
State of Ecuador violated the American Convention insofar as it initiated
three sets of proceedings on the same facts and the same offense by three
different courts in succession.
As noted by the petitioner, the first trial for asset laundering
was instituted in 1992, with the first instance proceedings held before
the President of the Superior Court, and the second instance before the
Fourth Division of the same Court, which in April 1998 dismissed the case.
The second trial, also for asset laundering, was instituted in 1994
on the basis of an expanded report on the 1992 Operation Cyclone. The first
instance proceedings were held before the President of the Superior Court
and the second instance proceedings before the Second Division of the same
Court, which in July 1999 dismissed the case.
The third trial for asset laundering was instituted in 1996, on the
basis of a new expanded report on Operation Cyclone. These first instance
proceedings were held before the First Criminal Court, and subsequently
before the Eighth Court of Appeal, which in March 1999 issued a provisional
dismissal. The case was appealed to the First Division of the Superior Court,
which has not yet returned a decision.
It appears from the foregoing that Mrs. Levoyer Jiménez was tried
simultaneously for the same offense of asset laundering and on the basis
of these facts, on two occasions by the same judge (the President of the
Superior Court of Quito), and on a third occasion by the Judge of the Eighth
The Commission is of the view that such a situation, apart from disregarding
principles of procedural economy, could only cause harm to Mrs. Levoyer
Jiménez, who was compelled to defend herself before three different courts
and the corresponding appeal courts, during all three sets of proceedings.
The Commission considers that in the instant case the requirement of responding
to the parallel proceedings constituted a serious interference with the
exercise of the right to a defense and legal certainty in judicial proceedings.
As to the alleged violation of the American Convention, Article 8(4)
An accused person acquitted
by a nonappealable judgment shall not be subjected to a new trial for the
The purpose of codifying the principle of non
bis in idem is to establish a safeguard for persons acquitted in a nonappealable
decision so that they may not be tried in new proceedings for the same offense
for which they were tried during the first proceedings.
It has been determined that Mrs. Levoyer Jiménez was tried in three
sets of proceedings for the same offense of asset laundering. Although these
proceedings were instituted in parallel, the different courts rendered their
decisions on the merits of the case successively, confirming a triple violation
of the principle established in the Convention. The first violation occurred
with the second proceedings, when the President of the Superior Court neglected
to close the case after having seen that the Fourth Division of the Court
dismissed the case in April 1998 in issuing
judgment on appeal in the first case. The second violation occurred
when the Eighth Criminal Court closed neither the third case nor the second
when the first judgment was rendered. The third violation took place because
the appeal court, that is the First Division of the Superior Court, has
not resolved the matter to the present time.
This violation of the principle non
bis in idem was recognized in the judgment of the Second Division where
it was maintained that:
having to do
an expanded investigation report
of the investigation
of Operation Cyclone, judges and courts run a real risk of violating the
constitution and the law by judging a person more than once for the same
offense or of continuing to institute proceedings against a group of persons
as often as expanded reports of a police investigation which apparently
has not concluded are prepared by continuing such reports ad infinitum,
an act that violates constitutional guarantees and precepts, particularly
what is established in paragraph 16 of Article 24 of the Constitution
Based on the assessment of the evidence produced by the parties,
the Commission concludes that the State violated Dayra María Levoyer Jiménezs
right not to be tried more than once for the same offense, as established
in Article 8(4) of the American Convention.
Violation of the right to own property -
Violation of Article 21
The petitioner alleged that in the instant case Article 21 of the
Convention was also violated insofar as the goods that were seized when
Mrs. Levoyer Jiménez was arrested have not yet been returned to her.
In resolving the issue of the admissibility of the present case,
the Commission considered that the analysis of the present issue concerned
the merits of the case and therefore decided to defer its decision for the
According to the petitioners submission, when the charge of
acting as a front was dismissed, it was requested that the many
goods seized at the time of her arrest be returned to her. The judge denied
the request, on grounds that the matter was still before the Courts, and
that the goods would be returned when a final decision was taken.
The petitioner alleges that this final decision could take more than
five years, and that the goods would not be returned if the proceedings
are dismissed, thus constituting a violation of Article 21 of the Convention.
The Ecuadorian Code of Criminal Procedure establishes the res judicata effect of the (definitive) dismissal of proceedings,
but not those that are (provisionally) dismissed. The petitioner alleges
that even if the case had been definitively dismissed, the result would
not be a judgment and therefore the goods would never be returned.
The relevant sections of Article 110 of the Narcotics and Psychotropic
Substances Act state that If the person charged with an offense is
acquitted, any property he owns that has been seized shall be restored to
when so ordered by the court once the precautionary measures
have been lifted
The Commission is of the view that the provisions cannot be construed
to mean that a definitive dismissal is different from an acquittal because
it is a decision that concludes the proceedings definitively and puts a
stop to further investigation of the accused for the same facts. A violation of Article 21 would require a finding in
the present case that the State refused to return the property once a final
decision has been rendered, a case in which the right to property would
The Commission considers, therefore, that the petitioner has not
presented facts that if true, would constitute a violation of the Convention,
and therefore has decided
to admit the complaint on this point.
ACTIONS TAKEN FOLLOWING THE ADOPTION OF REPORT No 81/00
119. On October 5,
2000, during the course of its 108th
period of sessions, the Commission approved Report 81/00, pursuant
to Article 50 of the American Convention. Report 81/00 was transmitted to
the Ecuadorian State on October 26, 2000 with the corresponding recommendations
and was granted a period of 60 days within which to inform the Commission
regarding the measures it had taken in order to comply with these recommendations.
Since October 26, 2000, the State has not been in contact with the
Commission regarding the instant case, nor does the Commission have information
regarding the States having taken any of the recommendations mentioned
On the basis of the foregoing analysis of the facts and the law,
the Inter-American Commission on Human Rights hereby concludes that with
respect to Dayra Maria Levoyer Jimenez, the State of Ecuador has violated
the right to humane treatment (Article 5), the right to personal liberty
(Article 7), the right to due process (Article 25), together with the general
obligation to respect and ensure set forth in Article 1(1) of the American
The Commission further considers that the complaint relating to the
violation of Article 21 of the American Convention is not admissible because
the evidence presented does not constitute a violation of the Convention.
123. Based on the
foregoing considerations presented in the present report and the conclusions
reached, the Inter-American Commission on Human Rights recommends that the
State of Ecuador:
Proceed to grant full reparations, which involves granting adequate
compensation to Mrs. Dayra Maria Levoyer Jimenez;
Order an investigation to determine responsibility for the violations
detected by the Commission and eventually to punish the individuals responsible;
Take such steps as are necessary to reform habeas
corpus legislation as indicated
in the present report, as well as to enact such reforms with immediate effect.
On February 28, 2001, the Inter-American Commission on Human Rights
transmitted Report No 16/01the
text of which appears aboveto the Ecuadorian State and to the petitioners,
pursuant to Article 51(2) of the American Convention and granted the State
a period of one month in order to comply with the recommendations therein.
Until the date of the approval of the present report no response
has been received from the Ecuadorian State.
In light of the above considerations and the provisions of Article
51(3) of the American Convention, the Commission decides to reiterate the
conclusions and recommendations contained in this report, to make them public
and to include them in its Annual Report to the OAS General Assembly.
The Commission, in compliance with its mandate, will continue to
evaluate the measures taken by the State of Ecuador in relation with the
above mentioned recommendations, until they have been completely complied
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., on the 14th
day of the month of June in the year 2001.
(Signed) Claudio Grossman, Chairman; Juan Mendez, First Vice-President;
Marta Altolaguirre, Second Vice-President; Commissioners:
Helio Bicudo, 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 17(2)(a) of
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.
A motion of fact is provided for in Article 395 of the Code of Criminal
Procedure as follows: The motion will be granted when 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 superior court, the Supreme Court in the present
case, can rule on the merits of the motion.
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, having been kept in detention for a time equal to or
greater than one third of the period established in the Criminal Code
as the maximum sentence for the offense with which they are charged, have
neither had their case discontinued nor been committed to trial, shall
be immediately released by the judge hearing the case. Persons who, having been kept in detention for a time equal
to or greater than one half of the period established in the Criminal
Code as the maximum sentence for the offense with which they are charged,
have not been sentenced, shall be released immediately by the criminal
court hearing the case."
The Governments response of January 26, 2000, received by the Commission
on April 6, 2000.
Case, Judgment of November 12,
1997, paragraph 46.
Maier, Julio B., Derecho Procesal
Penal. Volume I. Editores Del Puerto, Buenos Aires, 2nd
edition, 1996, page 537.
Maier, op. cit. page 523.
Report 12/96, Giménez Case,
Argentina, IACHR Annual Report 1995. Paragraphs 76, 77, and 78.
Id., paragraph 70. See also European Court of Human Rights. Stogmuller
vs. Austria, Series A 9 (1969).
Report 12/96, op. cit. paragraph
218 (1991). European Court of Human Rights. Neumeister
Series A 8 (1968).
Report 12/96, op. cit. paragraph
83. See also European Court of Human Rights. Kenmache
vs. France, Series A, paragraphs 86 and 89.
Articles 77 and 78 of the Narcotics and Psychotropic Substances
Int.Ct.H.R. Suárez Rosero
Case, Judgment of November 17, 1997, paragraph 99.
Id. Paragraph 98.
Report 12/96 op. cit.,
Int. Ct.H.R. Suárez Rosero
Case, op. cit. paragraph
Int.Ct.H.R. Velásquez Rodríguez
Case, Judgment of July 29, 1988, paragraph 63ff.
Int.Ct.H.R. Castillo Páez
Case, Judgment of November 3, 1997, paragraph 82.
Article 68 of the municipal system act provides that: The
councils shall have a Mayor to direct the municipal administration,
and Article 26 of the same act states that: The municipal
government and administration is administered jointly by the Council
and the Mayor
Case 241-98HC. Judgment of the Second Division of the Constitutional
Court of June 16, 1998.
Suárez Rosero Case,
op. cit. paragraph 91.
Idem, paragraph 90.
paragraphs 70 and 71.
Report 12/96,. Suárez Rosero
Case, op. cit., paragraph
25; Genie Lacayo Case,
Judgment of January 29, 1997, paragraph 77. See also European Court
of Human Rights, Series A 195; Ruiz
Mateos vs. Spain, Series A 262 (1993).
Article 249 of the Code of Criminal Procedure of Ecuador provides
that a provisional dismissal of the proceedings suspends substantiation
for a period of five years, a period during which new evidence may
be presented in connection with the offense or with the responsibility
or innocence of the accused.
Suárez Rosero Case,
op. cit. paragraph 77.
Judgment rendered by the Second Division of the Superior Court of
Quito, July 5, 1999, paragraph 7.