Rigoberto Acosto Calderón v. Ecuador, Case 11.620, Report No. 78/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 175 (2001).
RIGOBERTO ACOSTA CALDERÓN
October 10, 2001
On November 8, 1994, the Inter-American Commission on Human Rights (hereinafter
the Commission or the IACHR), received a complaint alleging
violation of rights protected in the American Convention on Human Rights (hereinafter
the American Convention) by the Republic of Ecuador (hereinafter
the State or Ecuador) to the detriment of Mr. Rigoberto
Acosta Calderón, a Colombian national, represented by the Comisión
Ecuménica de Derechos Humanos [Ecumenical Human Rights Commission] (CEDHU)
(hereinafter the petitioner).
The petition claims violation of Articles 7(3), 7(5), 8(1), 8(2)(e),
24, and 25, in connection with Article 1(1) of the American Convention.
The petitioner says that on November 15, 1989, Mr. Acosta was arrested
by the Customs Military Police in the La Punta area of the city
of Lago Agrio, on suspicion of drug trafficking.
The detention of Rigoberto Acosta from November 15, 1989 to December
8, 1994, when a final judgment was rendered, allegedly violated Articles 7(3),
7(5), and 8(2) of the American Convention.
The petition further alleges violation of Article 8(2)(e) of the Convention
because Mr. Acosta did not have access to an attorney during the preliminary
inquiry conducted by the military police; a public defender was not appointed
for him when he was brought before the criminal court; he was kept away from
the place of the proceedings, impairing his right to a hearing with due guarantees
by the judge processing the case; and his declaration was only taken two years
afterwards, thus violating his right recognized in Article 8(1) of the American
At no time during Mr. Acostas trial for drug trafficking did the
drugs appear. Accordingly, it was not possible to carry out the procedure that
the law provides to demonstrate the physical existence of the crime,
which consists of the examination, weighing and destruction of the seized substance,
which acts must be officially recorded on a certificate.
Despite the foregoing, the judge only closed the preliminary hearing
on November 16, 1993, and issued an acquittal ruling in favor of the petitioner
on December 3, 1993, finding there to be no physical proof of the crime.
The acquittal ruling was referred for consultation to the First Chamber
of the Superior Court in and for Quito, which nine months later issued a ruling
on July 22, 1994 and remanded the case back to the Judge of Lago Agrio in August
1994. The Criminal Court found
that the crime had been proven and on December 8, 1994, Mr. Acosta was sentenced
to nine years imprisonment. In
the trial of Mr. Rigoberto Acosta Calderón, the preliminary hearing was supposed
to have taken 60 days but in this case took four years.
Furthermore, the mandatory consultation, which should have been resolved
in 15 days, took more than 270 days. Mr. Rigoberto Acosta Calderón was in custody
throughout all that time, before being released on July 29, 1996, due to having
served part of his sentence as a remand prisoner.
The State argues that Mr. Acosta was arrested, tried and convicted for
the crime of drug trafficking in accordance with the law in force and, therefore,
the Commission should find the petition inadmissible.
The Commission finds in this report that the case meets the admissibility
requirements provided in Articles 46 and 47 of the American Convention.
Therefore, the Commission decides to declare the case admissible, to
notify the parties of this decision, and to continue with its analysis of merits
regarding the alleged violations of Articles 7, 8, 24, and 25 of the American
The Commission also decides to publish the instant report.
PROCESSING BY THE Commission
The Commission received the respective complaint on November 8, 1994.
On March 1, 1996, the Commission received additional information from
the petitioner. Notes were sent
to the State on May 2 of that year. On
April 27 the Commission requested the petitioner for additional information
and repeated its request to the Government to provide information on the facts
alleged in the petition. On July
29, 1999, the petitioner replied to the IACHR, providing the information requested,
which was transmitted to the Government for comment on August 20, 1999.
On September 27, 1999, the Government sent the IACHR its comments on
the last communication from the petitioner. Those comments were forwarded to
the petitioner on November 2, 1999. On
January 4, 2000, the Government of Ecuador again sent additional information,
which was transmitted to the petitioner on February 10, 2000.
posiTIONS OF THE partIes
Position of the petitioner
On November 15, 1989, Mr. Acosta, a Colombian national, was arrested
on the charge of drug trafficking by the Customs Military Police in the La
Punta sector of the city of Lago Agrio, eastern Ecuador. The petitioner
adds that Mr. Acosta was taken to a police station where his preliminary statement
was taken and a report prepared that said that the drugs consisted of two pounds,
12 ounces of cocaine paste. On the basis of that report, the Judge of Lago Agrio
Criminal Court ordered Mr. Acostas arraignment and that he be remanded
The petitioner alleges that there were a series of irregularities in
the processing of the case: a) in the proceeding, testimonies were received
from persons unconnected with the matter; b) a report was found concerning the
weight of the drugs allegedly found at Lago Agrio Hospital, but that document
neither mentioned the court order requesting that measure, nor did it state
that the report pertained to the proceeding instituted against Mr. Acosta.
In addition to the foregoing, the petitioner says that since there was
no physical evidence of the crime -that is, an examination and chemical analysis
of the alleged drugs to determine what type of drugs they were- the prosecutor
refrained from presenting charges against him, for which reason the judge presiding
over the case ordered Mr. Acostas acquittal on December 3, 1993.
On July 22, 1994, the acquittal ruling was referred for consultation
to the First Chamber of the Superior Court, which overturned it and issued a
summons for Mr. Acosta to appear at the second stage of the trial, with the
argument that even though the drugs did not undergo chemical analysis or examination
nor were they destroyed, the police report said that he (Mr. Acosta) was arrested
with two pounds, 14 ounces of drugs, and that document proved the physical existence
of the crime. In respect of the
foregoing, the petitioner says that proof of the lack of evidence to convict
Mr. Acosta is the separate vote that opposed the criterion that the Chamber
adopted when it decided to reverse the acquittal.
10. On December 8,
1994, the Criminal Court found Mr. Acosta guilty and sentenced him to nine years
imprisonment. The petitioner says that an application for his release was only
presented to the Criminal Court on July 25, 1996. That request was based on
the Code of Execution of Criminal Sentences, and was heeded on July 29 of that
year, when Mr. Acosta was granted parole.
Based on the foregoing, the petitioner alleges that the State has committed
the following violations of the American Convention: a) violation of Article
7(3), because he was arbitrarily detained for six years and seven months for
a crime which he did not commit, given that there was no evidence in the trial
of the drugs allegedly found in the possession of Rigoberto Acosta Calderón;
b) violation of Article 7(5), because Rigoberto Acosta Calderón was not tried
within a reasonable time; he was arrested on November 15, 1989, the preliminary
proceeding took four years (it was closed on November 16, 1993), the judge did
not order his acquittal until December 3, 1993, which decision was referred
for consultation to the First Chamber of the Superior Court and took seven months
and 19 days to resolve.
The case was remanded to the judge who found Rigoberto Acosta Calderón
guilty, taking four months and 16 days to render a decision, when the law provides
a time limit of 10 days for a ruling; and, c) violation of Article 8(1) and
8(2), because the State did not provide him with counsel to assist him in his
defense, since Rigoberto Acosta Calderón lacked the wherewithal to retain an
attorney to defend him at the proceeding.
Furthermore, his lawful right of defense was impaired by being imprisoned
at a place 480 kilometers from the court where his trial was proceeding.
Finally, the petitioner says that the State has violated Mr. Rigoberto
Acostas right to personal liberty, his right to be presumed innocent,
to a hearing by a competent tribunal, to have counsel appointed for him by the
State in order to ensure his right of defense, his right to a fair trial, his
right to judicial protection, and his right to equal protection; the foregoing
rights are protected by Articles 7, 8, 24, and 25 of the American Convention,
in relation to Article 1(1) of said Convention.
Position of the State
The State says in its reply to the petition that on November 15, 1989,
the Criminal Court in and for Lago Agrio ordered the arraignment of Rigoberto
Acosta Calderón and that he be remanded in custody, basing his decision on a
from the Customs Police District Headquarters, which said that Rigoberto Acosta
Calderón was carrying two pounds, 14 ounces of cocaine paste.
That report also says that according to the preliminary statement taken
from Rigoberto Acosta Calderón, he admitted having agreed to carry across a
suitcase belonging to a woman whose first name he said was Magola, who had offered
to pay him 30,000 sucres to do so. The
Tribunal of Napo, for its part, says that the there is no record in the case
of a certificate of examination of physical evidence; only a photocopy of a
document certified by the director of Lago Agrio Hospital and the clerk of the
The State adds that although Rigoberto Acosta Calderón denied criminal
responsibility for the crime of which he was accused, the Prosecutor refrained
from proffering charges against him. Accordingly,
the Second Criminal Court in and for Tugurahua ruled that the accused be acquitted.
Subsequently, said ruling was referred for mandatory consultation to
the Superior Court of Quito, which reversed the acquittal ruling and ordered
the opening of the second stage of the proceeding, arguing that Rigoberto Acosta
Calderón had committed the crime recognized in Article 33 of the Drug Control
and Trafficking Act [Ley de Control y Tráfico de Estupefacientes] in force at that time.
On October 8, 1994, Rigoberto Acosta Calderón was sentenced to nine years
imprisonment. Later, on July 29,
1996, the Criminal Court in and for Napo ordered the release of Mr. Rigoberto
The State says that the parole application on behalf of Rigoberto Acosta
Calderón was denied by the Director of Social Rehabilitation of Ambato and the
Superior Court in and for Ambato because it was expressly prohibited under Article
115 of the Narcotic Drugs and Psychotropic Substances Act [Ley
de Sustancias Estupefacientes y Psicotrópicas].
Finally, the State says that international responsibility cannot be imputed
to the Government of Ecuador because, according to the foregoing facts, Rigoberto
Acosta Calderón was arrested, tried, and convicted in accordance with the law
in force in the country, and that he eventually regained his freedom 24 months
before completing his sentence.
AnALYSIS OF AdmisSIBILITY
The Commissions competence
ratione personae, ratione loci, ratione
temporis, and ratione materiae
The petitioner is entitled to lodge petitions with the IACHR under Article
44 of the American Convention. The petition cites as an alleged victim an individual
on whose behalf Ecuador undertook to respect and ensure the rights recognized
in the American Convention. Insofar as the State is concerned, the Commission
finds that Ecuador has been a state party to the American Convention since December
28, 1977, when it deposited its respective instrument of ratification. Accordingly,
the Commission has ratione personae competence
to examine the petition.
The IACHR has ratione loci competence to take up the petition because it claims
violations of rights protected in the American Convention that allegedly took
place in the territory of a state party to that treaty.
The IACHR has ratione temporis competence inasmuch as the duty to respect and ensure
the rights recognized in the American Convention was in force for the State
at the time when the alleged violations contained in the petition are said to
Finally, the Commission has ratione
materiae competence because the petition alleges violations of human rights
protected by the American Convention.
Other admissibility requirements for the petition
Exhaustion of domestic remedies
The Commission finds firstly that the State has not provided any explanation
for the period of three years and nine months that it took the court to conduct
the preliminary hearing, or why the courts took four years and 11 months, a
period longer than that which the law provides, to reach a decision on the legal
situation of Rigoberto Acosta Calderón.
The State argues that, insofar and inasmuch as they led to his conviction,
the arrest, trial, and conviction of the petitioner were carried out in accordance
with the law.
The State does not dispute exhaustion of domestic remedies, which were
concluded with the judgment of October 8, 1994, when Mr. Acosta was sentenced
to nine years imprisonment.
Deadline for lodging the petition
Article 46(1)(b) of the Convention says that the petition
must be lodged within a period of six months from the date on which the petitioner
is notified of the final judgment that exhausted domestic remedies.
In this case, the petitioner argues that he did not have an effective
recourse against the unwarranted delay in the Ecuadorian judicial system, which
resulted in the excessive period that he was held as a remand prisoner and,
consequently, under Article 46(2)(a) of the Convention he is exempt from the
requirement to exhaust domestic remedies.
The petitioner lodged the case with the Commission on November 8, 1994;
in other words, one month after Rigoberto Acosta Calderón was notified of the
conviction of October 8, 1994 that sentenced him to nine years imprisonment.
Given that it is not concerned with Mr. Costas innocence
or guilt in the crimes imputed to him by the Ecuadorian courts,
the Commission finds that the petition was presented on time.
Duplication of proceedings and res
The Commission finds that the subject matter of the petition is not pending
in another international proceeding for settlement, nor is the petition substantially
the same as one previously studied by the Commission or by another international
organization. Accordingly, the
requirements set forth in Articles 46(1) (c) and 47(d) have also been met.
Nature of the alleged violations
The Commission finds that the allegations, if proven, could establish
violations of the rights recognized in Articles 7, 8, 24, and 25 of the American
Convention. Furthermore, in its examination of the merits the Commission
will analyze the procedural requirement of consultation under Ecuadorian law,
and whether or not the nature and effects of consultation might violate the
rights to personal liberty, a fair trial, and judicial protection, all of which
are recognized by the American Convention.
Based on the foregoing, the Commission considers that the requirements
contained in Article 47(b) of the Convention have been met.
Based on the factual and legal arguments given above and without prejudging
the merits of the matter, the Commission concludes that this case meets the
admissibility requirements set forth in Articles 46 and 47 of the American Convention.
Inter-American Commission on Human Rights,
To declare this case admissible as regards Articles 7, 8, 24, and 25
of the American Convention.
To transmit this report to the petitioner and the State.
To continue with the analysis of merits in this case.
To publish this report and to include it in its Annual Report to the
OAS General Assembly.
Done and signed at the headquarters
of the Inter-American Commission on Human Rights, in Washington, D.C., on this
the 10th day of October, 2001.
(Signed): Claudio Grossman,
President; Juan Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President;
Commission members Hélio Bicudo, Robert K. Goldman, and Peter Laurie.
Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate in
the discussion of this case in accordance with Article 17 of the Rules of
the Procedure of the IACHR.
Article 67 of the Code of Criminal Procedure in force at that time provides
as follows: Appraisal of police proceedings.
On the basis of a reasoned opinion and admissible evidence, the Judge
shall also appraise the report, inquiry, and evidence prepared by the Judicial
The new Rules of Procedure of the Inter-American Commission on Human Rights
entered into force on May 1, 2001.
The separate vote states that it was not possible to establish the corpus
delicti without a chemical analysis of the drugs.
Article 401 of the Code of Criminal Procedure in force at that time says
that consultations must be decided within 15 days counted from receipt of
The acquittal ruling was reversed on July 22, 1994.
Article 157 of the Code of Criminal Procedure in force at that time says,
Grounds for a criminal proceeding.
The basis of a criminal action is proof, in accordance to law, of
the existence of some punishable deed or omission.
Consequently, in order to secure a conviction, both that proof and
the responsibility of the accused must be demonstrated in the proceeding.
Article 46(2)(a) provides, "The
provisions of paragraphs 1(a) and 1(b) of this article shall not be applicable
when: a) the
domestic legislation of the state concerned does not afford due process
of law for the protection of the right or rights that have allegedly been
 Cf. Inter-Am. Ct.H.R., Suárez Rosero Case, Judgment of November 12, 1997, para. 37.