Fernando Ribadeneira v. Ecuador, Case 12.267, Report No. 67/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 428 (2000).
FERNANDO RIBADENEIRA FERNÁNDEZ SALVADOR
October 3, 2000
1. On January 14,
2000, the Inter-American Commission on Human Rights (hereinafter the
IACHR or the Commission) received a complaint submitted
by Fernando Ribadeneira Fernández Salvador (hereinafter the petitioner)
against the Republic of Ecuador (hereinafter the State or Ecuador),
according to which the failure of the Superintendency of Banks (an agency
of the State) to control the Sociedad Financiera Principal led to the
bankruptcy of that corporation. The petitioner is the chairman of the Board
of Creditors and claims to have suffered a personal loss of USD$600,000. He
alleges violations of Articles 8 (right to a fair trial), 21 (right to property),
and 25 (right to judicial protection) of the American Convention on Human
Rights (hereinafter the American Convention), all in breach of
the obligations contained in Article 1(1) thereof. In response, the State
maintains that internal remedies have not been exhausted and requests that
that the IACHR dismiss the complaint for that reason and wait for the resolution
of the case in the domestic courts.
In this report, the IACHR analyzes the information available to it
and concludes, in accordance with the American Convention, that the petitioner
has not exhausted the remedies provided by domestic law and that the exceptions
set forth in Article 46.2 of the aforesaid international instrument are not
applicable. Consequently, the Commission decides to declare the case inadmissible
under Article 47.a of the American Convention and Article 31 of the Commissions
Regulations, to transmit this decision to the parties, to make it public,
and to order its publication in its Annual Report.
PROCESSING BY THE COMMISSION
On January 14, 2000, the IACHR received the complaint in the case at
hand. On April 20, 2000, the Commission proceeded to open the case and transmitted
the relevant notes to the State and the petitioner. On August 30, 2000, the
State submitted its reply.
POSITIONS OF THE PARTIES
Position of the petitioner
4. The petitioner
claims that through the negligence of the Superintendency of Banks, an agency
of the State responsible for controlling the operations of financial institutions
in Ecuador, the Sociedad Financiera Principal was bankrupted, causing
him a personal loss of USD$600,000.
As a result of this, on December 4, 1998, the petitioner filed suit
against the Superintendency of Banks in the domestic courts, seeking payment
of damages for the harm caused by this lack of control over the financial
company. On December 22, 1998, the Eleventh Civil Judge in Pichincha began
to assess the suit and summoned the Superintendency of Banks to appear. On
May 19, 1999, the petitioner presented an amendment to the suit, providing
additional evidence that had not been considered in his earlier submission.
After this amendment was presented, the Judge assessed it and summoned the
Superintendency and the nations Attorney General to appear. The petitioner
claims that when his complaint was placed before the IACHR, notification of
the proceedings (the first procedural step in the lawsuit) had not yet been
The petitioner claims that this delay in serving notice has hindered
the defense of his rights and that the judiciary is to blame for the delay.
He also claims his suit for damages is about to be affected by a statutory
limitation, in that the Ecuadorian Civil Code stipulates that the right to
take action expires four years after the harmful act, action, or failure to
act. Said expiration is interrupted only once notification of the case has
The petitioner claims that his right to resolution within a reasonable
period of time, set forth in Article 8 of the American Convention, has not
been protected. In the case, he says, the proceedings have exceeded
this reasonable time, particularly considering that the matter is in no way
complex, given the current state of the suit; the plaintiff has in no way
caused the delay; rather it has been the behavior of the judicial authorities
that has caused the delay. Particularly if we see that an action that should
take no longer than three days has taken seven months.
The petitioner also claims that the State is violating Article 21 of
the Convention as regards both the right of ownership of the goods denied
to him as a result of the States inaction and the right of ownership
of the personal right to seek amends from the originator of the harm.
He states that the violation of Article 25 has arisen from the delay
in which the judiciary is incurring. The petitioner further claims that
this delay could also make it impossible to obtain judicial protection,
on account of the statutory limitation that could apply to the amended action.
Finally, the petitioner maintains that the delay in the processing
of the suit by the domestic courts causes the provisions of Article 46(2)
to apply, under which the exhaustion of domestic remedies is not necessary.
Position of the State
According to the State, the petitioner filed suit against the Superintendency
of Banks on December 7, 1998, seeking payment of USD$1,300,000 as damages
for the alleged negligent attitude of that agency in failing to maintain due
control over Sociedad Financiera Principal.
The State claims that after the original suit was presented on December
7, 1998, the Notifications Chamber summoned the Superintendent of Banks, Dr.
Jorge Egas Peña, on January 27 and February 1 and 3, 1999, and the nations
Attorney General on March 19, 1999. On March 1, the Superintendent replied
to the suit and proposed the peremptory and dilatory exceptions he deemed
applicable to the case. The Judge assessed and admitted this response. On
May 19, 1999, Dr. Alejandro Ponce Villacís, the petitioners attorney,
then amended the suit. In the amended suit, the petitioner sought USD$1,300,000
as damages, USD$1,300,000 for pain and suffering, and USD$1,300,000 for the
harm caused to his personal life plan, giving a total of USD$4,000,000. After
the petitioner amended his suit, the Judge ordered, on July 12, 1999, that
the defendants once again be summoned to appear and, the State claims, since
that date, neither the plaintiff nor his attorney have submitted any
petitions or granted the legal powers necessary to proceed with notification.
The State also claims that the proceedings have not yet concluded and
that the domestic courts must resolve them in accordance with law and
such a resolution, regardless of whether it is favorable or unfavorable, is
the best way to resolve the petitioners situation. The State also
notes that according to the European Court of Human Rights, the reasonableness
of a measure or a period of time must be seen in its own specific context,
and so the State has resolved this case in a period of time commensurate with
the proceedings in question, within the possibilities available to the State.
The State points out that the resources provided in Ecuadorian procedural
law are available to the petitioner and that he could invoke them if in disagreement
with the ruling of the lower-court judge. Thus, Article 237 of the Code of
Civil Procedure states that: An appeal is a claim that one of the litigants
or another interested party makes to a higher judge or court, seeking the
nullification or amendment of a decree, act, or ruling of a lower authority.
The State also notes that the petitioner could seek the nullification of a
sentence handed down by the corresponding chamber of the Superior Court in
cases in which judges have incurred in legal or procedural errors.
The Commissions competence
ratione materiae, ratione personae, and
The Commission has prima facie competence to examine this petition.
The petitioner is entitled to appear and has made allegations regarding a
failure to comply with provisions of the American Convention by agents of
a state party thereto. The incidents alleged in the petition occurred at a
time when the State was under the obligation of respecting and guaranteeing
the rights set forth in the Convention. Ecuador deposited its instrument of
ratification for the American Convention on December 28, 1977. The events
of this case took place between 1996 and 1998.
Requirements for the admissibility of the petition
Exhaustion of domestic remedies
As the IACHR has already stated, The rule of prior exhaustion
of domestic remedies is based on the principle that a defendant state must
be allowed to provide redress on its own and within the framework of its internal
The Court and the Commission have said, on several occasions, that when a
State maintains that a petitioner has not met the requirement of first exhausting
domestic remedies, it is required to indicate which remedies are available
The Court has also said that, once a State Party has shown the existence
of domestic remedies for the enforcement of a particular right guaranteed
by the Convention, the burden of proof shifts to the complainant, who must
then demonstrate that the exceptions provided for in Article 46(2) are applicable.
The State claims that the remedies suitable for resolving the alleged
illicit actions involved in this case are the following: an appeal against
the ruling of the lower-court judge, or the nullification of the sentence
by the Superior Court.
The Commission notes that the petitioner has not challenged the States
claim regarding the availability of the remedies provided by domestic law
for seeking said protection and, consequently, the exceptions set forth in
Article 46.2, paragraphs (a) and (b) are not applicable. In such cases, the
burden of demonstrating that there was an unwarranted delay in resolving those
remedies falls on the petitioner, in accordance with the terms of Article
46(2)(c) of the American Convention.
The Inter-American Court has said that it shares the view of
the European Court of Human Rights, which in a number of decisions analyzed
the concept of reasonable time and decided that three points should be taken
into account in determining the reasonableness of the time in which a proceeding
takes place: a) the complexity of the case, b) the procedural activity of
the interested party, and c) the conduct of the judicial authorities.
The Commission understands that the complexity of a case does not fully
justify an unwarranted delay in judicial proceedings. The Commission refrains
from evaluating the complexity of the matter before the Ecuadorian domestic
courts because that information is not available to it. However, it is clear
that the petitioners behavior made a significant contribution to the
slowness of the proceedings. After the original suit was brought before the
courts in December 1998, the domestic judge issued the corresponding summonses
in January, February, and March. In May 1999, the petitioner submitted an
amended version of his suit and, on July 12, 1999, the Court ordered the defendants
to be summoned anew and, since that time, neither the petitioner nor his attorney,
Dr. Alejandro Ponce Villacís, have presented any petitions or carried out
the requisite legal procedures necessary for the summonses to be issued.
In this case, according to the information submitted to the Commission,
it can be seen that the petitioner has obligations pending with the Ecuadorian
courts before the proceedings can be concluded. As a result, the Commission
finds that seven months, in light of the characteristics of this case, cannot
be considered unreasonable.
Analyzing the information provided by the two parties reveals that
the petitioner has not exhausted the remedies available under domestic Ecuadorian
law and that he has not presented evidence indicating an unjustified delay
in the resolution of those remedies.
The IACHR has determined that the petition does not meet the requirement
set forth in Article 46(1)(a) of the American Convention and that the information
submitted by the parties does not allow application of the exceptions provided
for in Article 46(2) thereof. Consequently, the Commission concludes that
the petition is inadmissible, in accordance with Article 47(a) of the American
Based on the foregoing considerations of fact and law,
COMMISSION ON HUMAN RIGHTS
To declare this case inadmissible.
To give notice of that decision to the petitioner and to the State.
To publish this decision and to include it in its Annual Report to
the General Assembly of the OAS.
Done and signed at the headquarters of the Inter-American Commission
on Human Rights, in the city of Washington, D.C., on the third day of October,
2000. (Signed): Hélio Bicudo,
Chairman, Dean Claudio Grossman, First Vice-Chairman; Juan Méndez, Second
Vice-Chairman; Commissioners: Marta Altolaguirre, Robert K. Goldman, Peter
Laurie and Julio Prado Vallejo.
IACHR, 1996 Annual Report, Report No. 39/96, Case 11.673, Santiago
Marzioni (Argentina), October 15, 1996, paragraph 49, p. 85.
See: Inter-Am.Ct.H.R., Loayza Tamayo Case, Preliminary
Exceptions, Judgment of January 31, 1996, paragraph 40; and IACHR,
1997 Annual Report, Report No. 28/98, Case 11.625, María Eugenia Morales de Sierra (Guatemala), March 6, 1998, paragraph
28, p. 150.
Inter-Am.Ct.H.R., Advisory Opinion OC-11/90 Exceptions
to the Exhaustion of Domestic Remedies (Arts. 46.1, 46.2.a, and 46.2.b
of the American Convention on Human Rights), requested by the Inter-American
Commission on Human Rights, August 10, 1990, paragraph 41.
Inter-Am.Ct.H.R., Suárez Rosero
Case, Judgment of November 12, 1997, paragraph 72.