Marcia Irene Clavijo Tapia v. Ecuador, Case 11.783, Report No. 98/00, OEA/Ser.L/V/II.111 Doc. 20 rev. at 532 (2000).
MARCIA IRENE CLAVIJO TAPIA
October 5, 2000
On January 28, 1997, Marcia Irene Clavijo Tapia (hereinafter the
petitioner), with the legal assistance of the Comisión Ecuménica
de Derechos Humanos del Ecuador (Ecumenical Commission for Human Rights)
(hereinafter the Petitioner or CEDHU), 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 she alleged violations of the
following rights protected by the American Convention on Human Rights (hereinafter
the Convention or the American Convention):
the right to humane treatment (Article 5), the right to personal liberty
(Article 7), the right to a fair trial (Article 8), and the right to judicial
protection (Article 25), all in breach of the obligations set forth in Article
1(1), to the detriment of Mrs. Clavijo Tapia.
The parties reached a friendly settlement in this case on June 11,
1999. This report contains a
brief statement of the facts and the text of the settlement agreement, in
keeping with Article 49 of the Convention.
On May 17, 1993, the petitioner was detained in Guayaquil, without
any arrest warrant, in connection with Operation Silver (la "Operativo
Plata), an anti-drug operation.
She was taken to the Interpol offices in Guayas, where she was held
incommunicado for 15 days. During this time she was tortured in an effort
to get her to state that she was guilty of having participated in the act
Later, the petitioner was taken to the city of Quito and brought before
the Second, Seventh, and Tenth Criminal Judges of Pichincha, who initiated
criminal proceedings without indicating the motive or reason for the petitioners
detention, and all the persons whose names appeared in the police report were
accused generally, without analyzing the indicia of responsibility in each
In the proceedings in the Tenth Court (Juzgado Décimo), the
petitioner filed an amparo motion
seeking her release before the President of the Superior Court, which ruled
favorably on it on September 10, 1996, and ordered the petitioner released.
The petitioner also brought an amparo
motion within the proceeding in the Seventh Court (Juzgado Séptimo),
but it was rejected on the grounds that the petitioner was not accused in
On May 31, 1996, charges against petitioner were dismissed provisionally
in the proceeding before the Second Court (Segundo Juzgado). The Fourth Chamber of the Superior Court, on ruling in consultation,
as provided for by Ecuadorian law in drug cases, affirmed the dismissal on
May 27, 1997. On June 4, 1997,
the Second Court (Segundo Juzgado) ordered the petitioner released,
and she regained her freedom on June 6, 1997.
The injury which is the cause of the allegation against the State was
for the time of deprivation of liberty without a verdict, in addition to the
violations of the right to humane treatment, to a fair trial, and to judicial
protection. The fact that an
individual is later released or convicted does not rule out a violation of
the reasonable time in pre-trial detention, as provided for by Article 7 of
the American Convention.
PROCESSING BEFORE THE COMMISSION
On March 5, 1997, the Commission received the complaint in this case,
which was opened as a case on July 31, 1997.
The case was then processed in keeping with the Commissions Regulations.
On February 9, 1999, the Commission invited the parties to pursue a
friendly settlement in this case. On
February 15, 1999, the petitioner accepted, and on July 11, 1999, the friendly
settlement agreement was signed in the city of Quito.
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. Segundo
César Duque Chasi, on behalf and in representation of Mrs. Marcia Irene Clavijo
Tapia, 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. Segundo César Duque Chasi, on behalf and in representation of Mrs.
Marcia Irene Clavijo Tapia, as appears from the special power of attorney
executed before the 19th Notary of Guayaquil, Mrs. Ketty Romoleroux; 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 Mrs. Marcia Irene Clavijo Tapia enshrined in
Article 5 (right to humane treatment), Article 7 (right to personal liberty),
Article 8 (fair trial), and Article 25 (judicial protection), and at the same
time the general obligation contained in Article 1(1) of the American Convention
on Human Rights and other international instruments, and that the violations
were committed by State agents, which could not be disproved by the State,
giving rise to State responsibility.
the above, the Ecuadorian State accepts the facts in case No. 11.783 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 Mrs. Marcia Irene Clavijo Tapia
a one-time compensatory payment in the amount of sixty-three thousand US dollars
(US$ 63,000) 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 Mrs. Marcia Irene Clavijo Tapia, as well as any other claims that
Mrs. Marcia Irene Clavijo Tapia 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 Mrs. Marcia
Irene Clavijo Tapia 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
Marcia Irene Clavijo Tapia 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 Mrs. Marcia Irene Clavijo Tapia.
DETERMINATION OF COMPATIBILITY AND COMPLIANCE
The Commission determined that the settlement agreement transcribed
is compatible with the provisions of Article 48(1)(f) of the American Convention.
On August 29, 2000, CEDHU informed the Commission that the State proceeded
to make the payment agreed upon. Even
though the State undertook to pay the interest for the delinquency in paying
the compensation, and that the compensation payment would be exempt from any
tax, except for the one percent tax on the circulation of capital, the State
has failed to carry out any of the commitments it acquired on June 11, 1999,
under this agreement. The State
has not paid the interest for delinquency in payment of the compensation,
and it has collected a tax of 0.8 percent on the circulation of capital, at
the moment of cashing the checks by which the compensation was paid.
The State has failed in its duty to bring to trial and punish the persons
The Commission reiterates its recognition of the Ecuadorian State for
its decision to settle the case through reparative measures, including those
required to punish the persons responsible for the violations alleged.
The IACHR also reiterates its recognition of the petitioner for accepting
the terms of the agreement in question.
The IACHR will continue monitoring compliance with the commitment assumed
by Ecuador with respect to the trial and punishment of the persons responsible
for the violations alleged and payment of the interest for late payment, commitments
which have not been carried out to date.
The IACHR ratifies that the friendly settlement provision of the American
Convention makes it possible to conclude individual cases in a non-contentious
manner, and has proven, in cases regarding several countries, to offer an
important vehicle for settling violations alleged, which may be used by both
parties (petitioner and the State).
To recognize that the State has made payment of US$ 63,000 as compensation,
and to note its failure to carry out its commitments to punish the persons
responsible for the violations alleged and to pay interest for the delinquency
in payment of the compensation.
To urge the State to take the measures necessary to carry out the commitments
pending with respect to bringing to trial and punishing the persons responsible
for the violations alleged, and to paying interest for the delinquency in
payment of the compensation.
To continue to monitor and supervise each and every one of the points
of the friendly settlement agreement, and, in this context, to remind the
State of its commitment to report to the IACHR every three months regarding
performance of the obligations assumed by the State under this friendly settlement
To make this report public 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 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,
of Ecuadorian nationality, did not participate in the discussion of this
case, in keeping with Article 19 of the Commissions Regulations.