Daniel David Tibi v. Ecuador, Case 12.124, Report No. 90/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 262 (2000).
On July 15,1998, the Inter-American Commission on Human Rights
(hereinafter the Commission) received a complaint in which
it was alleged that the Republic of Ecuador (hereinafter the State
or Ecuador) had violated the rights of Mr. Daniel David Tibi,
a French national residing in Ecuador and a dealer in precious stones
and art objects, which rights are protected in the American Convention
on Human Rights (hereinafter the American Convention).
The Petitioner is represented before the Commission by Attorney
Arthur Vercken, also a French national.
He alleges violation of Articles 5 (humane treatment); 7 (personal
liberty); 8 (fair trial); 10 (compensation); 11 (privacy); 21 (property);
and 25 (judicial protection), all in relation to Article 1(1) of the American
The Petitioner alleges that, on September 27, 1995, he was arrested
by the police in Quito while driving his car in a city street.
The Petitioner alleges that he was taken, unjustly, by airplane,
to the city of Guayaquil, some 600 km. from Quito, where he was placed
in a cell and illegally held for 28 months. The Petitioner claims that
he is entirely innocent of the charges made against him and that he was
subjected to torture on seven occasions, beating, burning, and suffocation
aimed at obtaining a confession that he had participated in a drug trafficking
The Commission concludes, in this report, that the case meets the
requirements set forth in Articles 46 and 47 of the American Convention.
The Commission therefore decides to declare the case admissible,
to notify the parties of its decision, and to continue to analyze, on
the merits, the allegations of violations of Articles 5, 7, 8, 10, 11,
21, and 25 of the American Convention.
At the same time, it places itself at the disposal of the parties
for initiation of a friendly settlement process and decides to publish
PROCESSING BEFORE THE COMMISSION
On July 15, 1998, the complaint on this matter was received by
the Commission. On May 7,
1999, notes were sent to the State and the Petitioner and the case was
opened. On August 12, 1999,
the State replied to the request for information; on September 27, it
transmitted additional information.
On October 8, 1999, the information was sent to the Petitioner. On April 7, 2000, the Petitioner transmitted further information;
on June 20, this was sent to the State.
As of this date, October 5, 2000, the State has not submitted its
the positions of the parties
Position of the Petitioner
On September 27, 1995, the Petitioner was arrested in Quito by
two police officers who identified themselves as Interpol agents, and
said that they worked in immigration control. Approximately two hours
following his arrest, the Petitioner was informed as a mere formality
that he would see a trial judge in Guayaquil, with the return trip scheduled
for that same day at night. The
trip was made by plane.
On arriving in Guayaquil, he was handcuffed on leaving the plane
and was transferred to the model headquarters of Interpol, where he was
placed in a cell until the following day when he was removed from the
cell and taken before the prosecutor, without a judge being present.
In the prosecutors office, he was shown an album of photographs
of persons implicated in the operation against the drug trafficker called
Camarón, and, in particular, the picture of someone the Petitioner
had met on two occasions to negotiate the exportation of leather bags,
a transaction that never occurred. After recognizing the individual, the Petitioner explained
why that person visited his home. The individual, Eduardo Edison García,
made a statement along the same lines as the one made by the Petitioner,
but, according to the Petitioner, the last part of the statement was falsified
by the police to frame him. Interpol
accused the Petitioner of having sold 50 grams of cocaine hydrochlorate
to Eduardo García. In December 1995, Eduardo García denied the police report,
but this statement was not included in the file.
In March 1996, Eduardo García made another statement that the Petitioner
was innocent. That statement
was placed in the file.
In July 1996, the Petitioner filed an action for enforcement of
his right to liberty before the President of the Superior Court.
This measure was rejected by the Court, since the President of
the Court found evidence in the action that suggested an infringement
of the law and also liability of the Petitioner, which suffice under Article
177 of Ecuadors Criminal Procedure Code to hold a person in custody.
Five months after his arrest, the Petitioner was offered his freedom
in exchange for a new statement in which he was to admit his involvement
in the Camarón
case. The Petitioner received
death threats in attempts to force him to change his statement. He was
handcuffed and taken to a room where he received blows about the body
and face. His lower limbs
were burned with cigarettes and red hot metal bars. Ten days later, the
blows and burns were repeated, this time resulting in his ribs being broken.
On other occasions, he was dealt blows with baseball bats, and
his head was submerged in a barrel of water.
He never received medical attention to treat his wounds.
Finally, the torture sessions were suspended through the intervention
of the Embassy of France. In total, the Petitioner counted seven sessions.
Despite the physical pressure, the Petitioner never admitted participation
in the offenses of which he was accused.
On September 3, 1997, the request for dismissal was accepted, but
the Petitioner was not immediately freed since the Public Prosecution
Service had to send its verdict for consultation to the Superior
Court, in accordance with Articles 398 to 403 of Act 134 of the Ecuadorian
Code of Criminal Procedure.
Under normal circumstances, this consultation should be done within
15 days, but, in this case, it required more than the established period.
Faced with this delay, the Petitioner filed an action for amparo on October 2,
1997, which was dismissed without any explanation whatever, as the Petitioner
alleged. Nonetheless, in January 1998, the judges decided to sign the
consultation by finding, as stated in the decision, that the accusations
against the Petitioner were completely unrelated to the criminal activity
reviewed in the action. They
also decided to transmit an order of release. On January 21, 1998, the
Petitioner was finally released. Following his release, he returned to
France and retains a lawyer in Ecuador, Dr. Colón Delgado Cedeño, who
is responsible for continuing to handle the proceedings for the Petitioners
10. The Petitioner
attaches the following documents as evidence of his allegations of torture:
Press articles from France and Ecuador;
French medical reports that determine the physical state of the
Petitioner, caused by injuries suffered in prison.
The Petitioner also alleges that when he was held in the penitentiary,
he had to pay 20,000 sucres (US$ 90) to a prison guard to be able to obtain
a cell. According to the
Petitioner, this was a common practice in order to sleep safely.
Until he agreed to that payment, he remained in the corridors of the pavilion,
sleeping on a bench.
The Petitioner also alleges that he was robbed of his belongings
( his car, along with money and valuable items inside the car) which he
The value of the assets for which the Petitioner is suing amounts
to FRF 1,000,000.
Position of the State
The State alleges that the Petitioner did not exhaust the remedies
of the domestic jurisdiction, and that, consequently, the Commission should
declare his petition inadmissible.
It alleges that the courts are still to decide the action.
It admits the existence of procedural irregularities in the proceedings
in the trial court, but it alleges that those irregularities have been
remedied, since the Petitioner could invoke remedies available to him
to recuse the judges. Pursuant to that provision, he filed a complaint
with the Complaints and Claims Commission of the Supreme Court of Justice,
since the judge hearing the action had not replied to the Petitioners
appeal for dismissal. This
judge was admonished by the Supreme Court for delaying the proceedings
for this type of trial. The use of such a measure by the Petitioner, alleges
the State, made it possible for trial to be conducted under appropriate
The State also alleges that the process was not concluded and that
the decision of the tribunals, whether favorable or not, would be a suitable
way to resolve the situation of the Petitioner.
It also alleges that it prove the existence of effective domestic
remedies to resolve the legal situation of the Petitioner.
These measures are the appeal to quash a decision of a lower court,
which the Petitioner might file against the judgment issued by the corresponding
criminal court. That measure is effective if the Supreme Court of Justice
had made errors of law, in annulling
the judgment and issuing a new according to law.
The State also alleges that another available remedy is that of
review, which may be filed at any time after the judgment is executed
if it was a conviction.
As to returning the belongings taken from the Petitioner at the
time of the arrest, the State alleges that the law requires that they
be requested and that they were never claimed after the Petitioner was
AnAlYSis OF ADMISSIBILITY
personae, ratione loci,
and ratione temporis competence
of the Commission
The Commission has ratione
materiae, ratione personae pasiva, ratione
loci, and ratione temporis
competence to hear this case, because the complaints of violations of
Articles 5, 7, 8, 10, 11, 21, and 25 of the Convention against the Petitioner,
a French citizen, are attributed to the Ecuadorian State, a State Party
to the Treaty, and were allegedly committed on Ecuadorian territory after
ratification of the Convention. Regarding
rationae persone competence, the Petitioner retained Attorney Arthur
Vercken, who was authorized to file complaints with the Commission pursuant
to Article 44.
The Commission has prima
facie competence to consider this case, since it concerns a claim
alleging human rights violations protected by the American Convention.
The Petitioner has locus
standi to appear and
present complaints on the failure to comply with provisions established
in the Convention by the Ecuadorian police and prison guards, which means
consequent international liability of the Republic of Ecuador.
The Commission is therefore competent to examine the claim of the
Other requirements for admissibility of the petition
Exhaustion of domestic remedies
The Petitioner stated that the charges against him were dismissed,
and consequently he had no other domestic remedies to exhaust.
The States claim that the other remedies to exhaust refer
to the drug trafficking case against the Petitioner that was provisionally
dismissed on September 3, 1997. However, this case has been under consideration
since 1995, on which account the Commission concludes that there is unjustified
delay in applying the exception set forth in Article 46(2)(c).
The Commission observes that the State does not specify what remedies
have already been exhausted, nor the body hearing the action.
The Commission observes that after the dismissal of the first action
for (amparo) infringement of
fundamental rights and freedoms filed by the Petitioner on July 1, 1996,
the Petitioner proceeded to present a second action for amparo on October 2, 1997, since he was arrested despite the dismissal.
In the appeal, the Petitioner informed the judicial authorities
of Ecuador that since his detention, as stated in the action, all
his due process rights, both personal and constitutional, have been violated,
which have resulted as a consequence of the unlawful detention, judgment
in a forum without jurisdiction, and imprisonment, despite his innocence,
for more than two years".
The Ecuadorian judicial authorities did not respond at all to this
In Advisory Opinion Nº 8, requested by the Commission, the Inter-American
Court of Human Rights stated that habeas corpus meets the objective of respect for the life and humane
treatment of the individual, of preventing the disappearance of persons
or preventing the individual from being held in unknown locations, and
protects against torture and other forms of cruel, inhumane or degrading
Specifically, the Court underscored the difference between habeas
corpus and an action for amparo:
If the two remedies are examined together, it is possible to conclude that "amparo" comprises a whole series of remedies and that habeas corpus is but one of its components. An examination of the essential aspects of both guarantees, as embodied in the Convention and, in their different forms, in the legal systems of the States Parties, indicates that in some instances habeas corpus functions as an independent remedy. Here its primary purpose is to protect the personal freedom of those who are being detained or who have been threatened with detention. In other circumstances, however, habeas corpus is viewed either as the "amparo of freedom" or as an integral part of "amparo."
In Suarez Rosero, a case
also brought against Ecuador, the Court stated that the right of habeas
corpus is fully protected under Ecuadorian law:
a detained person must be guaranteed the right of habeas corpus at all
times, even when he is being held in exceptional circumstances of incommunicado
detention established by law. That guarantee is doubly entrenched in the
law in Ecuador. Article 28
of the Political Constitution 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 written mandate
Code of Criminal Procedure of that State establishes in Article 458 that
person who is charged with infringing the precepts contained in [that] Code
and is kept in detention may apply to be released to a higher Court than
the one that has ordered the deprivation of his liberty.
application shall be made in writing.
upon receipt of the application, the Judge who is to hear it shall order
the detained person to be brought before him and shall hear his statements,
which shall be included in a record which shall be signed by the Judge,
the Secretary and the applicant, or, should the applicant be unable to
sign, by a witness on his behalf. Thereupon, the Judge shall seek to obtain
all the information he deems necessary for the purpose of arriving to
a conclusion and ensuring the lawfulness of his decision and shall, within
forty-eight hours, decide what he deems to be lawful.
Court shares the Commission's view that the right enshrined in Article
7(6) of the American Convention is not exercised with the mere formal
existence of the remedies it governs. Those remedies must be effective,
since their purpose, in the terms of Article 7(6), is to obtain without
delay a decision "on the lawfulness of [his] arrest or
detention," and, should they be unlawful, to obtain, also without
delay, an "order [for] his release". The Court
has also held that
order for habeas corpus to achieve its purpose, which is to obtain a judicial
determination of the lawfulness of a detention, it is necessary that the
detained person be brought before a competent judge or tribunal with jurisdiction
over him. Here habeas corpus performs a vital role in ensuring that a
person's life and physical integrity are respected, in preventing his
disappearance or the keeping of his whereabouts secret and in protecting
him against torture or other cruel, inhuman or degrading punishment or
treatment (Habeas Corpus in Emergency Situations (Arts. 27(2), 25(1)
and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87
of January 30, 1987. Series A No. 8, para. 35).
In regard to violation of Article 7, the Commission considers the
actions for amparo presented
by the Petitioner to be sufficient to exhaust domestic remedies. Furthermore,
the Commission considers those same actions for amparo
capable of resolving the questions of violations against the rights of
liberty and physical and mental integrity. Thus the Commission concludes that the Petitioner
did exhaust domestic remedies in regard to Article 5 of the Convention,
as he filed for amparo twice and had both requests denied (once in court and the other
simply ignored with no explanation given). These action for amparo
did not lead to the Petitioner being freed or to the Ecuadorian authorities
carrying out an investigation of the Petitioners complaint that
his human and constitutional rights had been violated while he was being
detained. Said actions proved ineffective and could be called a formality
devoid of meaning.
In Velásquez Rodríguez
the Court stated that:
mere fact that a domestic remedy does not produce a result favorable to
the petitioner does not in and of itself demonstrate the inexistence of
exhaustion of all effective domestic remedies.
For example, the petitioner may not have invoked the appropriate
remedy in a timely fashion.
is a different matter, however, when it is shown that remedies are denied
for trivial reasons or without an examination of the merits, or if there
is proof of the existence of a practice or policy ordered or tolerated
y the government, the effect of which is to impede certain persons from
invoking internal remedies that would normally be available to others. In such cases, resort to those remedies becomes a senseless
formality. The exceptions
of Article 46(2) would be fully applicable in those situations and would
discharge the obligation to exhaust internal remedies since they cannot
fulfill their objective in that case.
in regard to the Petitioners property confiscated upon his detention,
the State does not indicate what procedures should have been followed
to secure its return. Instead, the State maintains that after his release,
the Petitioner never made a claim for his property. However, the Criminal
Court of Guayaquil in its decision of 23 September 1998 found that, The
case of Daniel Tibi having been dismissed, his property, as figuring in
the Guayas Anti-Narcotics Investigation Report and to be confirmed by
the Sixth Superior Court of Guayaquil, shall be returned to him.
The Commission notes that as of the date of writing (5 October 2000),
the matter has not been resolved. Twenty-fours months having passed since
the Superior Court decision, the Commission concludes that this is a case
of unjustified delay. Thus, in regard to the right to property as recognized
in Article 21 of the American Convention, the Commission considers that
domestic remedies have been exhausted.
Period for lodging a petition
Article 46(1)(b) of the Convention stipulates that a petition must
be lodged within six months of the date on which the party alleging violation
was notified of the final judgment exhausting domestic remedies. In this
case the Petitioner lodged his communication with the Commission 5 months
and 3 weeks after he was released upon the execution of the 14 January
1998 Superior Court order confirming dismissal. Given that the petition
was lodged within six months of the petitioner first having the opportunity
to do so, the Commission considers that it was presented within a reasonable
time period in accordance with Article 46(1)(b).
Duplication of proceeding and subject
The Commission understands that the subject of the petition is
not pending in any other international proceeding for settlement, and
that the petition is not substantially the same as any already examined
by this or another international organization. Thus the requirements laid
out in Articles 46(1)(c) and 47(d) have been met.
Characteristics of the alleged facts
28. The Commission
finds that in principle the facts presented by the Petitioner, if proven
true, could constitute a violation of rights protected by the American
Convention. Thus the requirements of Article 47(b) of the Convention have
29. Based on the
findings of fact and law herein explained, the Commission concludes that
the present case satisfies the requirements for admissibility contained
in Articles 46 and 47 of the American Convention.
Given the above conclusion,
INTER-AMERICAN HUMAN RIGHTS COMMISSION,
Declare the present case admissible with respect to Articles 5,
7, 8, 10, 11, 21 and 25 of the American Convention.
Transmit this report to the Petitioner and to the State.
Continue with an in-depth study of the case.
Make this report public and include it in its Annual Report to
the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington D.C., on this the 5th day of October,
2000. (Signed): Hélio Bicudo,
Chairman; Claudio Grossman, First Vice-Chairman; Commissioners: Marta
Altolaguirre, Robert K. Goldman, and Peter Laurie.
Art. 398 The criminal court judges are required to take up
for consultation to the respective Superior Court, the decisions to
dismiss (...) Art. 399. Whenever the judge in the same proceedings
issues a decision to dismiss in favor of one or more of the accused
(...) a copy of the proceedings will be transmitted to the Superior
Court to resolve the consultation and the original will go to the
Criminal Court which will continue the case.
Art 401 The Superior Court will decide the consultation
on the merits of what has been presented within 15 days from the receipt
of the proceedings and its resolution will be carried out.
The Petitioner presented a detailed two page list of the goods that
he is claiming. This
list was compliled at the time of Mr. Tibi's detention and is signed
by him and the police lieutenant, Mr. Edison Tobar.
Ecuador ratified the American Convention on December 28, 1977.
Writ of amparo presented by the Petitioner to the President of the
Superior Court of Guayaquil on October 2, 1997.
Inter-American Court of Human Rights. Habeas Corpus in Emergency
Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human
Opinion 8/87 of January 30, 1987, paragraph 34. The Commission would like to point out that Article 93
of the Constitution refers to habeas corpus
as a safeguard on the legality of a detention which is presented to
the mayor of the jurisdiction where the person is being held. Article
95 refers to amparo, an action
which would require measures to stop, prevent or immediately
remedy the consequences of an illegitimate act or omission on the
part of a public authority that violates or could violate any right
protected by the Constitution or by an international treaty or convention
currently in force
more inclusive as it safeguards the right to personal liberty and
all other rights protected by the Constitution of Ecuador and the
This refers to Article 28 of the old Constitution of Ecuador.
It is Article 93 of the present Constitution.
Inter-American Court of Human Rights, Suárez Rosero case, Judgment
of November 12, 197, paragraph 59.
Inter-American Court of Human Rights. Habeas Corpus in Emergency
Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human
Rights). Advisory Opinion 8/87 of
January 30, 1987, paragraph 35.
Inter-American Court of Human Rights.
Velásquez Rodríguez case, 29 July 1988, paragraphs 67-68.
Decision of the Superior Court of Guayaquil, 23 September 1998.