Report No. 147 (2011) IACHR. Petition No. 4418-02 (Ecuador)

• Report Number: 147
• Petition Number: 4418-02
• Alleged Victim: José Antonio Gómez Tello e Iván Víctor Enríquez Feijóo y 980-03, Susssy Ivette y Wendy Esthahel Encalada Cherrez
• Court: Inter-American Comission of Human Rights
• Respondent State: Ecuador
• Case Type: Admissibility

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REPORT No. 147/11

PETITIONS 4418-02 JOSÉ ANTONIO GÓMEZ TELLO AND IVÁN VÍCTOR ENRÍQUEZ FEIJÓO,

980-03 SUSSY IVETTE AND WENDY ESTAHEL ENCALADA CHERREZ

ADMISSIBILITY

ECUADOR

November 1^st, 2011

I. SUMMARY

1. This report refers to two petitions presented on behalf of the boys José Antonio Gómez Tello (14) and Iván Víctor Enríquez Feijóo (12) (P-4418-02)¹ and the girls Sussy Ivette (16) and Wendy Estahel Encalada Cherrez (14) (P-980-03)² (hereinafter also “the alleged victims”), which allege violation by the Republic of Ecuador (hereinafter also "Ecuador" or "the State") for not having taken measures to enforce the constitutional protection rulings (amparo) issued by the Constitutional Court and published on January 14, 2002 and on November 30, 2001, an omission which is said to have affected the human rights of the alleged victims, including their right to education.

2. In Petition 4418-02 it is alleged that the State is responsible for the violation of the right to humane treatment, the rights of the child, the right to equal protection, and the right to judicial protection provided for under Articles 2, 5, 19, 24 and 25 of the American Convention (hereinafter “the Convention” or “the American Convention”), in conjunction with the obligation to respect rights, in accordance with its Article 1(1). The petitioners consider the requirement of exhaustion of domestic remedies to have been satisfied. For its part, the State replies that the claims are inadmissible given the failure to submit the petition within the stipulated time frame, domestic remedies were not exhausted, and the alleged violations were not characterized.

3. In Petition 980-03 it is alleged that the State is responsible for the violation of the rights to the protection of honor and dignity, the rights of the child, nondiscrimination, and judicial protection provided for under Articles 11, 19, 24, and 25 of the American Convention, in conjunction with the obligation to respect rights, in accordance with its Article 1.1. The State replies that the claims are inadmissible due to the failure to exhaust domestic remedies, to characterize the violations - given the existence of an out-of-court settlement signed by the petitioner-, and because the IACHR does not function as a court of appeals.

4. Because of the identity of the facts of the petitions, the Commission decided to analyze their admissibility together. After examining the positions of the parties in light of admissibility requirements stipulated in Articles 46 and 47 of the Convention, the Commission concludes that it is competent to hear the claim, and that it is admissible for the alleged violation of Articles 5,³ 19, and 25, in conjunction with Article 1(1) of the American Convention and of Article 13 of the Protocol of San Salvador. Finally, it decides to declare inadmissible the petition with regards to Articles 11 and 24 of the American Convention and to join the claims to case 12.698 (Adriana Victoria Plaza Orbe and Daniel Ernesto Plaza Orbe). Therefore, it orders that the parties be notified of the report, that the report be published, and that it be included in its Annual Report to the General Assembly of the OAS.

II PROCEEDINGS BEFORE THE COMMISSION

5. Petition 4418-02 was received on October 31, 2002, and on November 15, 2002 a copy of the pertinent parts was transmitted to the State, with a two-month period to submit information. The petitioners presented additional information or observations on August 12 and October 22, 2003; on January 30, May 4, June 30, and July 27, 2004; April 1 and August 16 2005; on February 15, March 13, and December 11, 2006; and on December 19, 2007. On May 13, 2003; April 16, and March 16, 2004; and February 23 and November 1, 2005 the State submitted its observations. All the information submitted was forwarded to the respective counterpart for their observations.

6. On December 15, 2008 the IACHR repeated a request for information to the State. On October 8, 2009 the State requested that the IACHR furnish “all the information” on the petition, which was transferred to the State on October 19, 2009, with a renewed request for information. The State submitted its final observations on January 8, 2010, which were transferred to the petitioners for their information.

7. Petition 980-03 was received on November 19, 2003 and on July 26, 2004 the Commission proceeded to transmit a copy of the pertinent parts to the State, with a two-month period for submitting information. On November 24, 2004 the State submitted its observations and requested that the petition be set aside since the petitioner and the American School of Guayaquil (hereinafter “American School”) had agreed on an out-of-court settlement. This communication was forwarded to the petitioner on December 22, 2004, for his observations.

8. On May 29, 2009 the IACHR repeated its request to the petitioner for observations. On June 24, 2009 the petitioner sent his response, which was forwarded to the State for its observations. On August 11, 2009 the State submitted its response, which was forwarded to the petitioner for his information. On April 30, 2001 the petitioner provided additional information, which was sent to the State. On June 3, 2010 the State sent additional observations, which were sent to the petitioner for his information.

III. POSITIONS OF THE PARTIES

1. Position of the petitioners

1. Joint allegations

9. The petitioners allege that the alleged victims were students at the American School of Guayaquil until the 1999-2000 school year. They allege that the American School unilaterally increased the cost of monthly fees in April and May 2000 to a sum amounting to between 65-90% more than the fees for the 1999-2000 school year. In view of this, a group of parents filed a complaint with the Provincial Director of Education (Director Provincial de Educación) of Guayas, the Regulatory Board of Private Education Costs (Junta Reguladora de Costos de Educación Particular) of the Province of Guayas, the Ministry of Education and Culture, the Ombudsman (Defensor del Pueblo) of the Province of Guayas, and various media, against the American School. They allege that, as a result of the complaint, on August 14, 2000 the Regulatory Board of Private Education Costs of the Province of Guayas ruled to set enrollment costs and fees for the 2000-2001 year, and that the parents should be reimbursed for the amount collected in excess.

10. The petitioners allege that, on the basis of that ruling, they requested the school to comply with the decision and that, in retaliation, because they had promoted the complaints, the representatives of the American School arbitrarily refused to enroll the alleged victims for the 2001 and 2002 school year, through official letters dated January 12, 2001 and January 23, 2001.⁴ The petitioners indicate that on January 23, 2001 a group of parents filed a complaint with the Provincial Director of Education of Guayas requesting that urgent measures be taken to sanction the director of the American School, warning her to rectify the decision to expel the students and, accordingly, to proceed to enroll them for the corresponding school year.

11. It is alleged that, by official communication dated February 5,...