Manuel Inocencio Lalvary Guaman v. Ecuador, Case 11.466, Report No. 96/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 519 (2000).
MANUEL INOCENCIO LALVAY GUAMAN
October 5, 2000
On November 8, 1994, Manuel Inocencio Lalvay Guamán (hereinafter the
petitioner) submitted a petition to the Inter-American Commission on
Human Rights (hereinafter the Commission or the IACHR)
against the Republic of Ecuador (hereinafter the State), in which
he alleged violations of the following rights protected by the American Convention
on Human Rights (hereinafter the American Convention or the Convention):
the right to humane treatment (Article 5) and the right to personal
liberty (Article 7), in violation of the obligations set forth at Article
1(1), to the detriment of Mr. Lalvay Guamán.
The parties reached a friendly settlement agreement in this case on
February 26, 1999. This report
contains a brief presentation of the facts and the text of the agreement,
in keeping with Article 49 of the Convention.
On May 26, 1992, the jewelry store owned by Mr. Angel Guamán, where
Mr. Segundo Malla, the petitioners brother-in-law, works, was robbed. Mr. Angel Guamán accused his employee of having performed the
robbery. On July 7, 1992, Mr.
Malla was detained at his home, and taken to the Office of Criminal Investigation
of Pichincha (Oficina de Investigación del Delito de Pichincha) (hereinafter
OID-P), where he was tortured by agents of the OID-P; he recognized
agent José Alvarado. Through
efforts by Mr. Mallaa attorney, he was released that same day; no police
report was drawn up nor any statement signed.
On July 8, 1992, a police report was presented with a statement, supposedly
signed by Mr. Malla, in which he stated he was guilty and implicated the petitioner
as an accomplice. The Sixth
National Commissar initiated proceedings, without any detention, against Segundo
Malla and Manuel Lalvay. In those proceedings, expert handwriting evidence
was requested of the signature that appears in the statement of the police
report, and it was determined that the signature at the OID-P was falsified.
In the wake of this experts report, on October 25, 1993, the
Ninth Criminal Judge provisionally dismissed charges against the petitioner
and Mr. Malla. On April 6, 1993,
the petitioner was arrested arbitrarily at his shop by OID-P agents, without
a judicial warrant, giving as the reason that he had supposedly been accused
of being a criminal by residents of the La Colmena neighborhood.
The petitioner identified the agents as José Alvarado Pinzón, Luis
Ortíz Flores, Jorge Espinoza Méndez, and others whose names are unknown.
The petitioner also alleged that the day after his arrest, on April
7, 1993, after being transferred to the Police Barracks, at approximately
10 a.m., he was taken by agents Ortíz and Espinoza to the place called La
Terraza, where agent José Alvarado was present, and where the petitioner
was the victim of physical abuse and torture by the agents.
The petitioner alleges that agent Alvarado told him that it was all
so that he would learn that he was not going to be subject to any trial for
falsification of signatures, and that the petitioner had better take responsibility
for what he, Alvarado, was being accused of. The fact that the harassment
continued for two more years led to this complaint before the Commission.
He alleged that he was stripped and his hands tied behind his back,
after which he was submerged in a tank of water.
In addition, he said, a pillowcase with gas was placed on his head,
and that, when he was almost unconscious, he was held up by rope and then
violently dropped to the floor, fracturing his teeth.
In addition, he stated he was tortured by electric shock.
When they saw he could bear no more, they stopped the torture.
After this torture session, the petitioner was taken to the Office
of Miscellaneous Matters to have his statement taken.
The intent of the agents was to coerce him into accepting that he had
committed a crime, and into signing the statement. To this end, he was subjected to further physical abuse.
When he refused to sign the statement, he was taken once again to the
CDP, where he was held until his release.
The petitioner filed charges against these agents for torture, bodily
injury, abuse of authority, kidnapping, and unlawful entry.
On April 15, 1994, the petitioner was once again visited at his shop
by agents of the former OID-P, renamed Judicial Police, who attempted to arrest
him without a judicial warrant. After
the petitioner put up resistance, the agents summonsed him April 18 to the
offices of the Police, for questioning.
On April 16, the petitioner appeared, with his attorney, at the Fourth
Police Station, to inform the authorities of what had happened the previous
day. The petitioner stated that
on April 18 he went to the police with a member of the Comisión Ecuménica
de Derechos Humanos (hereinafter CEDHU) to comply with the
oral summons from the agents, but once he was there it was discovered that
no such summons had issued, nor were those agents present. On April 19, Captain
Diego Cruz visited the petitioner to ask that he try to pick out the agents
who visited him from photos, but they did not appear in any of them.
On September 8, 1994, members of the petitioners family, Mrs.
Piedad Malla, his wife, and Mr. Segundo Malla, his brother-in-law, were also
assaulted, with blows and cuts, by Mr. Angel Guamán, who originally accused
the petitioner of having robbed jewels from his jewelry store. The victims
turned to the Fourth Police Station to lodge the complaint; Angel Guamán also
went there, asking that the Commissar arrest the above-mentioned persons.
Immediately the Commissar issued the arrest warrant, in response to
which a member of CEDHU went to the Police Station to set forth the case and
ask that the warrants be revoked.
On October 20, 1994, the petitioner was detained once again at his
shop with no judicial warrant, and taken to the offices of the Judicial Police,
where his identity card was taken from him, and several photos were taken
of him, from different angles, for no apparent reason.
Three hours later the petitioner was released.
The petitioner stated that until the day his complaint was filed with
the Commission, November 8, 1994, he continued to be a victim of constant
harassment by the Judicial Police, especially as they told him they were going
to visit him at certain times, yet none of the threats was ever carried out.
Due to indigence, on not being able to pay the fees for defense counsel,
the petitioner discontinued the private accusation against the agents of the
OID-P for torture, as a result of which the case was declared abandoned by
the judge. Thus, the case passed
into the hands of a prosecutor, and the petitioner ceased being a party to
the proceedings, and so was not able to claim compensation
The petitioner stated that the Ecuadorian State has international responsibility
beyond the penalty that may be imposed on the individuals who directly violate
a given human right.
PROCESSING BEFORE THE COMMISSION
On November 8, 1994, the Commission received the complaint in this
case, which was not opened until April 18, 1995.
The case was processed as per the Commissions Regulations.
On February 1, 1999, the petitioner sent information in which it stated
that the Office of the Attorney General of Ecuador had initiated direct conversations
with the petitioner aimed at initiating the friendly settlement process based
on elements accepted by the petitioner.
On February 25, 1999, the respective agreement was signed in the city
of Quito, Ecuador.
THE FRIENDLY SETTLEMENT AGREEMENT
The Friendly Settlement Agreement signed by the parties reads as follows:
Ecuadorian State, through the Office of the Attorney General, with a view
to promoting and protecting human rights and given the great importance of
the full observance of human rights at this time for the international image
of our country, as the foundation of a just, dignified, democratic, and representative
society, has decided to take a new course in the evolution of human rights
Office of the Attorney General has initiated conversations with all persons
who have been victims of human rights violations, aimed at reaching friendly
settlement agreements to provide reparations for the damages caused.
Ecuadorian State, in strict compliance with the obligations it acquired upon
signing the American Convention on Human Rights and other international human
rights law instruments, is aware that any violation of an international obligation
that has caused damages triggers the duty to make adequate reparations--monetary
reparations and criminal punishment of the perpetrators being the most just
and equitable form. Therefore the Office of the Attorney General and Mr. Manuel
Inocencio Lalvay Guamán have reached a friendly settlement, pursuant to the
provisions of Articles 48(1)(f) and 49 of the American Convention on Human
Rights and Article 45 of the Regulations of the Inter-American Commission
on Human Rights.
following persons were present at the signing of this Friendly Settlement
Dr. Ramón Jiménez Carbo, Attorney General of the State, as indicated
in his appointment and certificate of office, which are attached as qualifying
Mr. Manuel Inocencio Lalvay Guamán, on his own behalf, as appears from
the copy of citizenship document number 170780779-6, which belongs to Mr.
Manuel Inocencio Lalvay Guamán; a copy of that document is also attached as
a qualifying document.
STATE RESPONSIBILITY AND ACCEPTANCE
Ecuadorian State acknowledges its international responsibility for having
violated the human rights of Mr. Manuel Inocencio Lalvay Guamán enshrined
in Articles 5 and 7 of the American Convention on Human Rights and other international
instruments, considering that Mr. Manuel Inocencio Lalvay Guamán was illegally
detained, tortured, and persecuted, and that the violations were committed
by State agents, which could not be disproved by the State, giving rise to
the above, the Ecuadorian State accepts the facts in case No. 11.466 before
the Inter-American Commission on Human Rights and undertakes the necessary
reparative steps to compensate the victims, or their successors, for the damages
caused by those violations.
view of the foregoing, the Ecuadorian State, through the Attorney General,
as the sole judicial representative of the Ecuadorian State, pursuant to Article
215 of the Constitution of Ecuador, enacted in Official Register No. 1 and
in force since August 11, 1998, is awarding Mr. Manuel Inocencio Lalvay a
one-time compensatory payment in the amount of twenty-five thousand US dollars
(US$ 25,000) or the equivalent in local currency, calculated at the exchange
rate in effect at the time the payment is made, to be paid from the National
compensation covers the consequential damages, loss of income, and moral damages
suffered by Mr. Manuel Inocencio Lalvay Guamán, as well as any other claims
that Manuel Inocencio Lalvay Guamán or his family members may have, regarding
the subject of this agreement, under domestic and international law, and is
chargeable to the National Budget. To this end, the Office of the Attorney
General will notify the Ministry of Finance, for it to carry out this obligation
within 90 days of the signing of this document.
PUNISHMENT OF THE PERSONS RESPONSIBLE
Ecuadorian State pledges to bring civil and criminal proceedings and pursue
administrative sanctions against those persons who are alleged to have participated
in the violation in the performance of State functions or under the color
of public authority.
Office of the Attorney General pledges to encourage the State Attorney General,
the competent judicial organs, and public agencies or private institutions
to contribute legal evidence to determine the liability of those persons.
If admissible, the prosecution will be subject to the constitution and laws
of the Ecuadorian State.
RIGHT TO SEEK INDEMNITY
Ecuadorian State reserves the right to seek indemnity, pursuant to Article
22 of the Constitution of the Republic of Ecuador, from those persons found
responsible for human rights violations through a final and firm judgment
handed down by the countrys courts or when administrative liability
is found, in keeping with Article 8 of the American Convention on Human Rights.
TAX EXEMPTION AND DELAY IN COMPLIANCE
payment made by the Ecuadorian State to the other party to this agreement
is not subject to any current or future taxes, except for the 1% tax on capital
the event that the State is delinquent for over three months from the date
the agreement is signed, it must pay interest on the amount owed, corresponding
to the current bank rate of the three largest banks in Ecuador for the duration
of its delinquency.
Ecuadorian State, through the Office of the Attorney General, agrees to report
every three months to the Inter-American Commission on Human Rights on compliance
with the obligations assumed by the State in this friendly settlement agreement.
keeping with its consistent practice and obligations under the American Convention,
the Inter-American Commission on Human Rights will oversee compliance with
compensatory damages that the Ecuadorian State is awarding to Mr. Manuel Inocencio
Lalvay Guamán are provided for in Articles 22 and 24 of the Constitution of
the Republic of Ecuador, for violation of the Constitution, other national
laws, and the norms in the American Convention on Human Rights and other international
human rights instruments.
friendly settlement is entered into based on respect for the human rights
enshrined in the American Convention on Human Rights and other international
human rights instruments and on the policy of the Government of Ecuador to
respect and protect human rights.
NOTIFICATION AND CONFIRMATION
Manuel Inocencio Lalvay Guamán specifically authorizes the Attorney General
to notify the Inter-American Commission on Human Rights of this Friendly Settlement
Agreement, so that the Commission may confirm and ratify it in its entirety.
parties to this agreement freely and voluntarily express their conformity
with and their acceptance of the content of the preceding clauses and state
for the record that they hereby end the dispute before the Inter-American
Commission on Human Rights on the international responsibility of the State
for violating the rights of Mr. Manuel Inocencio Lalvay Guamán.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
above is compatible with the provisions of Article 48(1)(f) of the American
On September 27, 1999, CEDHU informed the Commission that on that day,
seven months after the signing of the agreement by the petitioner and the
State, the State proceeded to make payment of the compensation agreed upon.
As regards punishing the persons responsible, in 1993 proceedings were
initiated, for the crime of torture against José Alvarado and others, at the
Second Court of the First Police District (Segundo Juzgado).
On June 30, 1997, the judge issued a reasoned order, which was affirmed
by the First District Police Court on October 27, 1997. The accused appealed that order to the Corte Distrital Policial,
which in its ruling of October 27, 1997, affirmed the order of the lower court,
remanding the proceedings to the Juzgado for the case to continue.
Despite the courts order requesting the General Command of the
Police to indicate a day and time for its members to meet and hand down a
judgment, the Command never indicated the date of the hearing, thus the court
that should have sat in judgment of this crime never met.
For this reason, on April 28, 1999, the Second Judge of the First District
ruled that the action had prescribed; this decision was affirmed by the District
Court of the Police on June 23, 1999.
The accused continue on active duty in the Police.
The Commission reiterates its recognition of the Ecuadorian State for
its decision to settle the case by adopting compensatory measures. The IACHR also reiterates its recognition of the petitioner
for accepting the terms of the agreement.
The IACHR will continue to monitor compliance with the commitment adopted
by Ecuador to bring to trial the persons considered responsible for the facts
alleged, which has not been done to date.
The IACHR ratifies that the friendly settlement procedure provided
for in the American Convention makes it possible to conclude individual cases
in a non-contentious manner, and has proven, in cases from several countries,
to offer an important vehicle for settling violations alleged, which may be
used by both parties (petitioner and the State).
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To recognize that the State has made payment of US$ 25,000 as compensation,
and has failed to carry out its commitment to punish the persons responsible
for the violation alleged.
To urge the State to take the measures needed for carrying out the
commitments still pending with respect to bringing to trial the persons considered
responsible for the facts alleged.
To continue to monitor and supervise compliance with each and every
point of the friendly settlement agreement, and, in this context, to remind
the State, through the Office of the Attorney General, of its commitment to
inform the IACHR, every three months, as to the performance of the obligations
assumed by the State under this friendly settlement agreement.
To make this report public and 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 the
city of Washington, D.C., October 5, 2000. (Signed)
Hélio Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Juan
Méndez, Second Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, and Peter Laurie.
* Dr. Julio Prado Vallejo, an Ecuadorian national, did not participate in the discussion of the case, pursuant to Article 19 of the Commissions Regulations.