Alberto Dahik Garzozi v. Ecuador, Petition 12.259, Report No. 93/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 381 (2001).
ALBERTO DAHIK GARZOZI
October 10, 2001
On June 22, 2000, the Inter-American Commission on Human Rights (hereinafter
the Commission) received a complaint submitted by the former Vice
President of the Republic of Ecuador, Alberto Dahik Garzozi, and his Costa
Rican attorney Carlos Vargas, (hereinafter the petitioner) against
the Republic of Ecuador (hereinafter the State or Ecuador),
in which he alleged that the State of Ecuador violated his human rights, to
wit: the right to a fair trial (Article 8), the principle of legality (Article
9), the right to equal protection of the law (Article 24), and the right to
judicial protection (Article 25), enshrined in the American Convention on
Human Rights, in breach of the obligations set forth in Article 1(1) thereof.
In turn, the State replied that the petitioner has not exhausted the remedies
provided by domestic jurisdiction and asked the Commission to dismiss the
In July 1995, the National Congress accused the serving Vice President
of Ecuador, Alberto Dahik, of bribery and corruption in the performance of
his functions. On August 4, 1995, two members of Congress filed a criminal
complaint in connection with those charges and, on August 16, the president
of the Supreme Court decided to begin proceedings. The investigation conducted
by the legislature ended on October 6, 1995, when the bid to remove Mr. Dahik
from office failed to receive the majority vote required. In the judicial
investigation, however, the Court issued a preventive custody order on October
11, 1995. On that same day, Mr. Dahik was allowed to enter Costa Rica and,
on March 29, 1996, he was given political asylum.
In this report, the Commission analyzes information submitted in accordance
with the American Convention and it concludes that the petitioner has not
exhausted the domestic judicial remedies available in Ecuador for resolving
his situation. Consequently, the Commission decides to declare the petition
inadmissible pursuant to Articles 46(1)(a) and 47(a) of the American Convention
and Article 31(1) of its Rules of Procedure,
to transmit it to the parties, to make it public, and to order its publication
in its Annual Report.
PROCESSING BY THE COMMISSION
On October 21, 1999, the Commission received the complaint. On March
27, 2000, the Commission began processing the petition and transmitted the
relevant communications to the State and the petitioner. The State sent a
detailed reply on July 17, 2000, which was forwarded to the petitioner on
July 26, 2000, for him to submit his comments within a period of 30 days.
On August 18, 2000, the petitioner asked the Commission to make itself available
to attempt to reach a friendly settlement in this matter. The petitioner sent
no comments on the States reply of July 17, 2000; and the State, in
a communication dated November 1, 2000, rejected the possibility of a friendly
POSITIONS OF THE PARTIES
The petitioner claims that in his capacity as vice president of Ecuador
during the administration of President Sixto Durán Ballén, he suffered political
persecution at the hands of his political adversaries in the leadership of
the Christian Social Party. According to the petitioner, this persecution
began in reprisal for public statements he made in Guayaquil, Quito, and several
main provincial cities, expressing his governments concern about growing
corruption in Ecuador. Consequently, according to the complaint, the National
Congress began impeachment proceedings against him so criminal charges could
be brought and he could be removed from office.
The National Congress ruled in the petitioners favor and acquitted him
of the charges.
The petitioner claims that on August 15, 1995, in spite of his acquittal
by the National Congress, the president of the Supreme Court of Justice, Dr.
Miguel Macias Hurtado, a Christian Social Party sympathizer, arbitrarily and
illegally began legal proceedings against him and several public officials
for two crimes committed against the state.
According to the petitioner, the president of the Supreme Court would only
have been entitled to begin criminal proceedings if the National Congress
had found him guilty; this, however, was not the case. On October 11 of that
year, Dr. Macias Hurtado ordered him placed in preventive custody arrest and,
subsequently, issued a declaration of commencement of the investigatory phasea
measure he was not authorized to adopt, on account of the petitioners
immunity as vice president of the Republic of Ecuador.
The petitioner claims that Article 59(e) of the Ecuadorian Constitution
in force at that time only allowed criminal charges to be brought against
the vice president if so decided by Congress following impeachment proceedings.
Article 59 reads as follows:
The National Congress shall meet, in plenary session but without needing convocation, in Quito, on August 10 of each year, and shall hold sessions for a period of no more than sixty days, with the sole purpose of dealing with the following petitions:
To undertake the impeachment, during their period of office or up to
one year thereafter, of the countrys president or vice president (...)
for offenses committed in the performance of their functions, and to resolve
their censure, if declared guilty, the result of which shall be their removal
and disqualification from holding public office for the same period.
president and vice president may only stand trial for treason, bribery, or
any other offense that gravely affects the nations honor.
Because of the illegal warrant issued for his arrest by the president
of Supreme Court and the political persecution he was facing, the petitioner
reports that he fled Ecuador on the day his preventive custody was ordered,
October 11, 1995; arriving in Costa Rica, he requested political asylum, which
was granted by the Costa Rican authorities on April 1, 1996. The petitioner
has been living in that country since 1995.
In addition, the petitioner claims that those criminal proceedings
were plagued by a string of irregularities. For example: (a) he was not personally
notified that criminal proceedings had been initiated against him until he
went to the courts to provide his statement for the investigatory phase; (b)
his attorneys were not allowed to submit evidence of his innocence, including
documents provided by the Office of the General Comptroller of the State dealing
with his spending in his capacity as vice president; (c) his attorneys were
not allowed to attend the expert inspections carried out at the Ecuadorian
Central Bank of the documents dealing with how the funds allocated to the
vice presidents office were managed-this, in the petitioners opinion,
was a flagrant breach of his right of defense;
and (d) he was not allowed direct participation in the criminal proceedings
brought against him, and the procedural timeframes established by law were
The petitioner reports that as a result of this unfair criminal action,
he filed for a motion of annulment with the first chamber of the Supreme Court
of Justice; however, this motion was dismissed on trivial grounds, thus curtailing
his right of defense.
As regards the remedies offered by Ecuadorian law, the petitioner holds
that he has duly exhausted them all by pursuing the following: (a) revocation
of the preventive custody order, which the Supreme Court dismissed on the
grounds that there were elements indicating that the petitioner could be responsible
for the crimes of which he was accused; (b) an amparo
suit, which was dismissed for trivial reasons, violating his human rights
and constitutional guarantees; and (c) revocation of the dismissal of the
amparo suit, which was also ruled
The petitioner concludes by claiming that the State of Ecuador has
violated the following human rights: the right to a fair trial (Article 8),
the principle of legality (Article 9), the right to equal protection of the
law (Article 24), and the right to judicial protection (Article 25), all of
which are enshrined in the American Convention. In consideration whereof,
he entreats the Commission to admit this petition and allow him to return
According to the State, the petitioner has not exhausted the remedies
offered by domestic jurisdiction for dealing with his claim; consequently,
the State asks the Commission to declare Alberto Dahik Garzozis petition
As regards the petitioners arguments, the State implores
Mr. Dahik to return to the country and to assert his rights before the national
courts, which (...) comply with all the fundamental characteristics set forth
in the Convention. Moreover, the State reports that the criminal proceedings
filed against Alberto Dahik have been suspended at the investigatory phase
because the petitioner is currently a fugitive from justice, in accordance
with Article 254 of the Code of Criminal Procedure;
the petitioner cannot therefore claim that the domestic remedies have been
exhausted if the first criminal proceedings have not ended. The State adds
that the petitioner has available to him all the remedies provided by law
to challenge judicial decisions or to pursue annulment.
The State points out that the petitioner himself, in the appeal lodged
with the first criminal chamber of the Supreme Court, stated that breaches
of Article 59(e) of the Constitution are categorized as criminal acts under
Article 216 of Criminal Code, which provides as follows: judges and
other employees who, without the authorization described in the Constitution,
request, issue, or sign a ruling or judgment against the countrys president
or his deputy, shall be punished with fines of between fifty and two hundred
sucres and prison terms of between one and three years. Consequently,
the State adds, if Mr. Dahik held that the actions of the president of the
Supreme Court violated the principles of legality and due process, he should
have filed criminal proceedings against the magistrates in order to exhaust
that domestic remedy.
The State further notes that the petitioner has enjoyed free access
to domestic remedies and that he has never been denied access to the competent
tribunals in order to clarify his legal situation; his right to due process
has been respected in accordance with judicial guarantees.
With respect to the immunity from prosecution claimed by the petitioner,
in its reply of July 12, 2000, the State referred to this as a legal
subterfuge to keep the crime from being punished, since although the
National Congress issued the petitioner an acquittal, that decision applies
solely to the impeachment proceedings and has no effect in the regular criminal
courts. According to the State, the National Congresss authorization
for bringing charges against the nations president and vice president
is limited to the instances specifically identified in the Constitution, to
wit: treason, bribery, or any other offense that gravely affects the nations
honor. However, this authorization is not necessary to prosecute those officials
for other offenses proscribed in criminal law.
In addition to the above, the State notes that the provision of the
Constitution must not be taken as meaning that the president or vice president
are exempt from criminal responsibility for common crimes; this precept serves
to uphold the principle of equality before the law. In this regard, the State
concludes by stressing that Alberto Dahiks case involves two independent
and separate trials: first, the impeachment proceedings, the aim of which
was his removal from office, and, second, the criminal proceedings, the aim
of which was to determine criminal responsibility.
With respect to the procedural anomalies described by the petitioner,
the State maintains that the proceedings omitted no formality or procedure
that could have had an impact on any substantive decision in the trial, and
that the proceedings observed the principles of legality, impartiality, and
due process. Similarly, the petitioner has enjoyed the right of access to
justice, in that he has been able to submit evidence in his defense and to
pursue effective remedies.
The State says it agrees that the reasonable time guaranteed by Article
7(5) of the Convention begins at the moment the person is accused, taking
the moment of accusation as meaning the official notification issued by the
competent authority: in the petitioners case, that was August 16, 1995.
However, the guarantee of a reasonable time does not apply to Alberto Dahik
Garzozis complaint, because he is not in Ecuador and, in accordance
with the law, the proceedings have been suspended. Hence, any argument regarding
failures to observe procedural timeframes is invalid.
Competence of the Commission Ratione
Personae, Ratione Loci, Ratione Temporis, and Ratione
The petitioner is entitled, under Article 44 of the American Convention,
to lodge complaints with the IACHR. The petition names, as its victim, an
individual person with respect to whom Ecuador had assumed the commitment
of respecting and ensuring the rights enshrined in the American Convention.
With respect to the State, the Commission notes that Ecuador has been a party
to the American Convention since December 28, 1977, when it deposited the
corresponding instrument of ratification. The Commission therefore has competence
ratione personae to examine the
The Commission has competence ratione
loci to deal with the petition, since it alleges violations of rights
protected by the American Convention occurring within the territory of a state
The Commission has competence ratione
temporis, since the obligation of respecting and ensuring the rights protected
by the American Convention was already in force for the State on the date
on which the incidents described in the petition allegedly occurred.
Finally, the Commission has competence ratione
materiae, since the petition describes violations of human rights protected
by the American Convention.
Other Requirements for Admissibility
The Inter-American Court of Human Rights has maintained, in the Velásquez
Rodríguez case, that the objection asserting the non-exhaustion of domestic
remedies, to be timely, must be made at an early stage of the proceedings
by the State entitled to make it, lest a waiver of the requirement be presumed.
In its first reply to this petition, and in compliance with the Courts
ruling, the State lodged an objection claiming that domestic remedies had
not been exhausted.
Another fundamental rule in the inter-American system is that a State
claiming the nonexhaustion of domestic remedies is required to identify the
unexhausted remedies available and indicate their effectiveness. The Commission
notes that the State has reported that the trial of the petitioner for embezzlement
of public funds was, on August 25, 1995, suspended at the investigatory stage
by the president of the Supreme Courtthe judge eligible to try the accused,
given his position as vice president at the time the alleged crimes were committedbecause
the accused was a fugitive from justice, in compliance with Articles 254 and
255 of the Code of Criminal Procedure; this shows that domestic remedies have
not been exhausted. The State has said: this trial has not ended, and
the competent tribunals must proceed to resolve the matter in accordance with
law. This favorable or unfavorable resolution will be the ideal way to resolve
the petitioners situation (
In reply to the petitioners claim that the State violated his
right to be tried within a reasonable period of time, the State replied that
Mr. Dahik could have filed a motion challenging the judge who committed that
violation, under the provisions of Article 871(10) of the Code of Civil Procedure,
applicable to criminal matters on a supplementary basis. This provision stipulates
871: A judge, of either a tribunal or court, may be challenged by any of the
parties and must recuse himself from the proceedings for any of the following
Failing to substantiate the proceedings within three times the time set forth
this connection, the State notes that: The deadline for issuing a ruling
is 10 days following the end of the period for arguments increased by one
additional day for each 100 pages of the proceedings (see Arts. 409 and 410
of the Code of Criminal Procedure and Art. 292 of the Code of Civil Procedure).
In this case, given the legal suspension of proceedings, the investigatory
phase of this trial has not even begun; consequently, no remedy could have
been exhausted in these proceedings.
Continuing with the possible domestic remedies available to the petitioner,
the State addresses the possibility of filing criminal action against the
president of the Supreme Court. The State points out that in his appeal filed
with the first criminal chamber of the Supreme Court of Justice, the petitioner
himself acknowledged that breaches of Article 59(e) of the Constitution are
categorized as criminal acts by Article 216 of Criminal Code, which provides
216. [Proceedings against senior authorities.] Judges and other employees
who, without the authorization described in the Constitution, request, issue,
or sign a ruling or judgment against the countrys president or his deputy,
shall be punished with fines of between fifty and two hundred sucres and prison
terms of between one and three years (...); the same shall apply to an order
intended to prosecute them or bring them to trial, or when they have issued
or signed the order or warrant for such arrest or detention.
State says that if the petitioner believed that the actions of the president
of the Supreme Court violated the principles of legality and due process,
he should have filed criminal proceedings against the magistrates in order
to exhaust that domestic remedy.
Because of the subsidiary nature of human rights treaties, the rule
requiring the prior exhaustion of domestic remedies was created and is set
forth in Article 46(1)(a) of the American Convention. This exhaustion allows
the State to resolve the problem under its domestic law before having to face
The State has shown that domestic remedies effective for resolving
the petitioners legal situation do exist. The Inter-American Court has
maintained that if a State which alleges non-exhaustion proves the existence
of specific domestic remedies that should have been utilized, the opposing
party has the burden of showing that those remedies were exhausted or that
the case comes within the exceptions of Article 46(2).
On July 26 2000, the States reply detailing the possible remedies
offered by domestic jurisdiction was forwarded to the petitioner for him to
submit comments within a period of 30 days. The petitioner, as of todays
date, has submitted no such comments. The Commission believes that this failure
to comment on the States reply is tantamount to tacit acceptance of
One requirement of juridical stability is that an objection to
admissibility on the ground of non-exhaustion of local remedies is to be raised
only in limine litis, to the extent
that the circumstances of the case so permit. If that objection, which benefits
primarily the respondent State, is not raised by this latter at the appropriate
time, that is, in the proceedings on admissibility before the Commission,
there comes into operation a presumption of waiver-albeit tacit-of that objection
by the respondent Government.
Similarly, the petitioner has the obligation of submitting his comments at
the appropriate point in the proceedings. If the petitioner fails to explain
why he did not exhaust the domestic remedies identified by the State or why
those remedies are not effective, there comes into operation a presumption
of waiver, albeit tacit, on the part of the petitioner. In the Commissions
opinion, that is what has happened in this complaint.
For the reasons given above, the Inter-American Commission holds that
the petitioner has not exhausted the available domestic remedies and, consequently,
it concludes that his petition is inadmissible under Articles 46(1)(a) and
47(a) of the American Convention and Article 31(1) of the Commissions
Rules of Procedure.
Based on the foregoing considerations of fact and law,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare this petition inadmissible.
To give notice of this 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 tenth day of October,
2001. (Signed): Claudio Grossman, President;
Juan Méndez, First Vice-President; Marta Altolaguirre, Second Vice-President;
Commissioners 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 compliance with Article 17 of the Commissions
Rules of Procedure.
The new Rules of Procedure of the Inter-American Commission on Human Rights
came into force on May 1, 2001.
Article 104 of the Organic Law of the Legislative Branch in force at that
time provided as follows: The National Congresss resolution
shall determine the offense committed and shall impose the punishment
set by Article 59(f) of the Constitution of the Republic, remitting the
accused to the competent judge when appropriate.
The two crimes were bribery and embezzlement of public funds.
The petitioner maintains that the president of the Supreme Court could
have only begun criminal proceedings if the National Congress had not
ruled in his favor in the impeachment hearing.
The petitioner maintains that the inspections carried out at the Central
Bank of Ecuador were illegal because only the experts were present, and
not the judge.
Article 254(1) of the Code of Criminal Procedure in force at the time
reads as follows: If, when the declaration of commencement of the
investigatory phase is issued, the accused is a fugitive from justice,
the judge shall, after issuing said declaration, order the suspension
of the investigatory phase until such time as the accused is apprehended
or presents himself voluntarily. While the accused remains at large, the
declaration of commencement of the investigatory phase shall not be considered
served; this declaration shall be notified to him in person when he reports
to the court or is apprehended.
Inter-Am.Ct.H.R., Velásquez Rodríguez
Case, Preliminary Objections, Judgment of June 26, 1987, Series C,
No. 1, paragraph 88.
Inter-Am.Ct.H.R., Velásquez Rodríguez
Case, Merits, Judgment of July 29, 1988, Series C & D, No. 4,
Inter-Am.Ct.H.R., Gangaram Panday
Case, Preliminary Objections, concurring opinion of Judge Cançado
Trindade, paragraph 3.