Juan Fernando Cabrera Guerrero v. Ecuador, Petition 12.299, Report No. 94/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 389 (2001).
No. 94/01 *
JUAN FERNANDO CABRERA GUERRERO
October 10, 2001
On June 22, 2000, the Inter-American Commission on Human Rights (hereinafter
the IACHR or the Commission) received a complaint
submitted by Juan Fernando Cabrera Guerrero (hereinafter the petitioner)
against the Republic of Ecuador (hereinafter the State or Ecuador),
accusing it of illegal arrest and failing to provide compensation for that
illegal arrest. The petitioner claimed violations of Articles 7(5) (right
to personal liberty), 8 (right to a fair trial), 11 (right to privacy), and
17 (rights of the family) of the American Convention on Human Rights (hereinafter
the American Convention), all in breach of the obligations set
forth in Article 1(1) thereof. In turn, the State replied that the petition
did not meet the requirements set forth in Article 46(1)(a) and (b) and asked
the IACHR to dismiss the complaint.
In this report, the IACHR analyzes the available information in accordance
with the American Convention and concludes that the petitioner did not lodge
his petition within six months following the date on which the alleged victim
was notified of the final ruling. Consequently, the Commission decides to
declare the petition inadmissible under Articles 46(1)(b) and 47(a) of the
American Convention and Article 32 of its Rules of Procedure, to transmit
it to the parties, to make it public, and to order its publication in its
PROCESSING BY THE COMMISSION
On June 22, 2000, the IACHR received the complaint in the instant case.
On June 30, 2000, the Commission began processing the petition and transmitted
the relevant communications to the State and to the petitioner. The State
sent its reply on August 30, 2000, which was received by the Commission on
September 20, 2000. The Commission continued with the formalities for collecting
comments from the parties set forth in its Rules of Procedure.
POSITIONS OF THE PARTIES
The petitioner, an engineer, lives and works in Guayaquil, Ecuador.
He claims that on August 10, 1995, at approximately 11 oclock, he was
arrested by agents of Interpol
on Av. 25 de Julio in the city of Guayaquil, without there being a judicial
order for his arrest. He was told he was being detained on suspicion of involvement
in an illegal marijuana transportation operation. The petitioner also claims
that he was kept incommunicado for twelve days, with no contact whatsoever
with his family or personal attorney, in breach of Article 24(6) of
the Ecuadorian Constitution,
which rules that no one may be detained without a judicial order for more
than 24 hours.
The petitioner claims that during that time, he was forced to confess
to having been involved in criminal acts that he did not commit. He says that
his home was searched without a warrant from a competent judge; moreover,
no evidence against him was found.
The petitioner reports that after being held incommunicado for twelve
days, he was referred to the Second Criminal Judge of Guayas, who ordered
the proceedings against him initiated on August 22, 1995, marking the start
of criminal trial No. 333-95. The Second Judge ordered the petitioner to be
held in preventive custody. This judge was removed, and the proceedings were
transferred to the Ninth Criminal Judge of Guayas.
The petitioner also attests that after the investigatory phase of the
proceedings, the Ninth Criminal Prosecutor of Guayas, Julio Piza Obregón,
issued a ruling in which he did not accuse the petitioner of any crime whatsoever.
The judge ordered the proceedings dismissed because of the lack of evidence
indicating the petitioners guilt.
The petitioner reports that the Ninth Criminal Judge ordered the referral
of this dismissal order to the Superior Court of Justice in Guayaquil and
did not order his release, even though there is no legal provision requiring
the accused to remain in prison while an order is referred to a higher court.
The referral was received by the Prosecuting Minister of Guayas and Galápagos,
Justo Loor Choez, who refrained from accusing the petitioner of any crimes.
Once that ruling was issued, the proceedings were referred to the fifth chamber
of the Superior Court of Justice of Guayaquil for resolution.
The petitioner claims that the fifth chamber resolved to summon the
petitioner to trial for the crime referred to in the proceedings, basing its
decision on the testimony of another defendant, Oscar Jiménez Foronda, who
had made a statement reporting the petitioners involvement in the offense.
Consequently, investigatory proceedings was ordered to be opened against the
petitioner for his complicity in the commission of the crime described and
criminalized by Article 62 of the Law on Narcotics and Psychotropic Substances.
The petitioner claims that the statement given by Jiménez Foronda at
the offices of Interpol was completely different to the statement he gave
the judge during the investigatory phase of proceedings. The petitioner further
adds that in a judgment handed down on December 24, 1997, Ecuadors Constitutional
Tribunal declared Article 116 of the Law on Narcotics and Psychotropic Substances
to be unconstitutional, which enabled the fifth
chamber to summon the petitioner to attend investigatory proceedings. That
article allowed police reports and pretrial statements given by the accused
to the prosecutor to indicate serious assumptions of guilt. He also claimed
that Article 108 of the Ecuadorian Code of Criminal Procedure does not allow
the judge to admit codefendants as witnesses.
The fifth chamber of the Superior Court of Justice referred the criminal
case to the Fourth Criminal Tribunal of Guayas for it to issue judgment. For
that, the petitioner reports, a public hearing was held at which his defense
attorneys invoked Article 108. At that hearing, the public prosecutor, Roberto
Cabrera Castillo, did not accuse him of any crime. Nevertheless, claims the
petitioner, the court convicted him on January 18, 1999, declaring him guilty
of the crime described and criminalized by Article 62 of Law on Narcotics
and Psychotropic Substances, with a four-year prison sentence. This ruling
was referred to the corresponding district Court of Justice for consultation.
On July 22, 1999, after studying the proceedings, the fifth chamber of the
Superior Court of Justice of Guayaquil acquitted the petitioner and ordered
his immediate release.
The petitioner reports that after he was released, on December 21,
1999, he took his case to the attorney general in compliance with Article
22 of the Ecuadorian Constitution,
to sue the State for the judicial error and secure compensation in the
amount of USD $4 million. He also holds that since he received no reply from
the attorney general, in compliance with the rule that says if a public official
fails to respond to a petition lodged by a citizen within a period of fifteen
days his silence shall be taken as constituting tacit acceptance, the petitioner
believes that the State has accepted his claim. Nevertheless, the State has
at no time contacted him to pay him the compensation sought. With this, the
petitioner claims that all the remedies provided by domestic law have been
The petitioner holds that the four years it has taken to resolve his
situation violates the rights protected by Articles 7(5) and 8(1) of the American
Convention. He also holds that Article 8(2) was violated, in that he was kept
in preventive custody for a lengthy period and his freedom was restricted
beyond the limits strictly necessary to ensure the efficient course of the
investigation and to keep him from escaping from justice. He states that keeping
him incommunicado for twelve days violates the rights enshrined in Articles
11 and 17 of the American Convention, in that incommunicado detention constitutes
an undue restriction of his familys right to be informed about his situation.
According to the State, the petitioner has not exhausted the remedies
that domestic law provides for dealing with his claim, and he has exceeded
the deadline of six months following the final ruling which released him during
which any petition with the Commission must be lodged. Consequently, the State
holds that the IACHR cannot admit this petition.
With respect to the compensation sought for his alleged illegal arrest,
the State notes that the petitioner, without passing through other judicial
instances, filed an administrative claim directly with the attorney general
of the State, whose office is not a court of law. As regards the administrative
silence to which the petitioner refers, the State maintains that the attorney
general did reply to the petitioners communication within the time stipulated
by law; for the purpose, it enclosed a copy of its letter to the petitioner,
which appears in the Commissions files. In that letter of January 17,
2000, the attorney generals office stated that its purpose was to intervene
on behalf of public interests, as either plaintiff or defendant, in defense
of the State and its institutions. The office of the attorney general is not
a court of law, and its powers and functions do not include judging actions
carried out by either state agents or private citizens. The State holds that
the attorney general is neither competent nor responsible for the alleged
violations, and neither is it the right body for making compensation payments.
The State also maintains that it has civil responsibility for the judicial
errors arising from the inappropriate administration of justice, as set forth
in Article 22 of the Ecuadorian Constitution, and that it also has right to
recovery with respect to the judge or official involved; thus, suing the judge
or magistrate responsible for the mistake for damages is a possibility. The
State quotes Articles 1031 and 1036 of the Ecuadorian Civil Code, which allow
civil action against a judge or magistrate who, in the performance of his
duties, causes economic harm to the parties in a trial, or to third parties,
through an inappropriate administration of justice. If the suit is admitted,
the State notes, the judgment would specifically require the payment of both
damages and costs. If applicable, the corresponding criminal proceedings would
be ordered. The State believes that the petitioner should file suit against
the judges and magistrates he believes responsible for the delay in or denial
of justice, and that he should hear the result of that action in the domestic
courts before involving the Commission. Consequently, the State holds that
the petitioner did not exhaust the domestic remedies applicable to his compensation
In addition, the State maintains that the petition exceeds the six-month
deadline set by Article 46(1)(b) of the American Convention. The State notes
that the Inter-American Court has ruled that the final decision in domestic
proceedings must be taken as meaning when the States courts hand down
a final and firm judgment.
The State maintains that the decision referred to in Article 46(1)(b) is judicial
in nature, not administrative. The State notes that eleven months passed by
between the final judicial ruling in these proceedings-July 22, 1999, when
the fifth chamber of the Superior Court of Justice of Guayaquil acquitted
the petitioner and ordered his immediate release and the date when
the petitioner lodged his petition with the Commission, which was June 22,
2000. The State consequently believes that the Commission must refrain from
hearing this petition, since it does not comply with the provisions of Article
Competence of the Commission
Ratione Personae, Ratione Loci, Ratione
Temporis, and Ratione Materiae
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 depositing the corresponding instrument of
ratification on December 28, 1977. 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
violations of human rights that are protected by the American Convention.
Other Requirements for admissibility
The Commission finds that the petition at hand alleges, first, the
violation of the petitioners right to personal liberty, with the consequences
that that implies, and, second, the States failure to provide compensation
for the alleged violation of the right to personal liberty. The Commission
shall proceed to analyze these two aspects separately.
Admissibility: Deadline for the presentation of petitions
In this petition, the petitioner claims that the State violated the
rights enshrined in Articles 1(1), 7(5), 8, 11, and 17 of the Convention in
the terms set forth above. The State claims that the petitioner lodged his
complaint after the end of the six-month deadline.
Article 46(1)(b) of the American Convention provides as follows:
by the Commission of a petition or communication lodged in accordance with
Articles 44 or 45 shall be subject to the following requirements:
that the petition or communication is lodged within a period of six
months from the date on which the party alleging violation of his rights was
notified of the final judgment.
The Inter-American Court of Human Rights has ruled, in the Suárez Rosero
case, that judicial proceedings shall be understood as concluded when the
final ruling has been handed down. Thus, the Court believes
proceeding to be at an end when a final and firm judgment is delivered and
the jurisdiction thereby ceases and that, particularly in criminal matters,
that time must cover the entire proceeding, including any appeals that may
In the case at hand, the petitioner received a firm acquittal from
the fifth chamber of the Superior Court of Guayaquil on July 22, 1999, whereby
he was immediately released and the judicial proceedings against him were
brought to a conclusion. The matter as regards the petitioners freedom
was thereby resolved. On June 22, 2000, the petitioner lodged a complaint
with the Commission, holding that his arrest had violated his right to personal
liberty as set forth in the American Convention. Between the final judgment
issued by the Ecuadorian courts and the petitioners lodging of this
complaint with the IACHR, eleven months went bymore than the time allowed
for the submission of petitions.
The petitioner claims that following his release, on December 21, 1999,
he lodged a claim with the office of the attorney general, to which he never
received a reply. The petitioner holds that the period of six months provided
for by Article 46(b) of the American Convention should be calculated from
the date of that unanswered claim and that this silence should be taken
as meaning acceptance of the petition.
The State, in its reply, and in accordance with Commission practice,
disputes the petitioners claim and maintains that the petitioner should
have lodged his complaint within a period of six months following the judgment
handed down on July 22, 1999, by the fifth chamber of the Superior Court of
Justice of Guayaquil.
Consequently, its analysis of this case in accordance with Article
46(1)(b) leads the Commission to conclude that this petition does not meet
the requirements set forth in that article and that, as result, it is inadmissible
under the terms of Article 47(a).
Admissibility: Compensation for alleged illegal arrest
Since the petition is inadmissible on account of its failure to meet
the requirements set forth in Article 46(1)(b), the Commission concludes that
it is not necessary for it to examine this second matter.
on the foregoing considerations of fact and law,
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 Commission's
Rules of Procedure.
The new Rules of Procedure of the
Inter-American Commission on Human Rights came into force on May 1, 2001.
Interpol is the
International Criminal Police Organization.
Article 24(6) of
the Ecuadorian Constitution stipulates that: No person shall be
deprived of his freedom except with the written order of a competent judge,
in the cases, for the time, and with the formalities set forth in law;
this shall not apply to those arrested in
flagrante delicto, who may be kept under arrest without being charged
for up to 24 hours. This does not apply to disciplinary arrests provided
for by law within the states security forces. No person may be kept
Article 62 of the
Law on Narcotics and Psychotropic Substances reads as follows: Any
person who buys, sells or otherwise transfers ownership of, distributes,
markets, imports, exports, or, in general, illegally traffics in narcotic,
psychotropic, or other controlled substances shall be punished with imprisonment
of between 12 and 16 years and a fine of between 60 and 8,000 times the
current general minimum wage. Illegal trafficking in narcotic, psychotropic,
or other controlled substances shall be taken as covering all market transactions
and transfers of ownership of said substances carried out in contravention
of the terms of this Law.
Article 116 of the
Law on Narcotics and Psychotropic Substances provided as follows: The
police report and the pretrial statement given by the accused in the presence
of the public prosecutor shall constitute a serious assumption of guilt,
provided that the corpus delicti
is proven. The substance of this article was declared unconstitutional
by Ecuadors Constitutional Tribunal on December 24, 1997.
Article 108 of the Ecuadorian Code of Criminal Procedure stipulates that:
In no case shall the judge admit codefendants as witnesses. Neither
shall he receive testimony from the defendants spouse or from his
relatives by blood to the fourth degree or by marriage to the second.
Article 22 of the
Constitution of Ecuador provides as follows: The State shall have
civil responsibility in cases of judicial error, for inappropriately administering
justice, for actions leading to the imprisonment or arbitrary arrest of
an innocent person, and for violations of the provisions set forth in
Art. 24. The State shall have the right to recovery with respect to the
responsible judge or official.
Suárez Rosero Case, Series C:
Decisions and Judgments, No. 35, Judgment of November 12, 1997, paragraph