Report No. 20 (2016) IACHR. Petition No. 12.208 (Ecuador)

• Year: 2016
• Petition Number: 12.208
• Report Number: 20
• Respondent State: Ecuador
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Robert Angelo Vera Gómez

REPORT No. 20/16

PETITION 12.208

REPORT ON ADMISSIBILITY

ROBERT ANGELO VERA GOMEZ

ECUADOR

OEA/Ser.L/V/II.157

Doc. 24

15 A. 2016

Original: Spanish

Approved by the Commission at its session No. 2065 held on A. 15, 2016.
157^th Regular Period of Sessions.

Cite as: IACHR, Report No. 20/16, P. 12.208. A.. R.A.V.G.. Ecuador. A. 15, 2016.

www.cidh.org

REPORT No. 20/16

PETITION 12.208

REPORT ON ADMISSIBILITY

ROBERT ANGELO VERA GOMEZ

ECUADOR

APRIL 15, 2016

I. SUMMARY

1. On August 10, 1998, the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission," "Commission," or "IACHR") received a petition filed by R.A.V.G. (hereinafter, the “petitioner" or “alleged victim”) against the Ecuadorian S. (hereinafter "Ecuador" or “the S."). Mr. V.G. claims to have been the victim of arbitrary detention by the police, torture and excessively long pretrial detention in the context of a criminal proceeding. C., he argues that the S. bears international responsibility for violation of rights recognized in Articles 5, 7, 8, and 25 of the American Convention on Human Rights (hereinafter the “American Convention” or “Convention”) to his detriment.

2. The petitioner says that he was detained by the police without an order issued by a competent authority, held incommunicado and subjected to different forms of mistreatment for over 15 days. He also claims that he was threatened with physical torture so that he might incriminate himself and confess his supposed involvement in a drug trafficking ring. He also charges that during the criminal proceeding followed against him, a variety of legal time limits were exceeded and that he was held in custody pending trial for an excessively long time, in spite of the fact that in the course of the proceeding the prosecutor had decided not to bring a criminal indictment against him. F., he said that he had received no redress for any of the harm caused to him and his family.

3. The S., for its part, held that the petitioner had not exhausted domestic remedies, given that a decision was pending on an application for habeas corpus; that he could have lodged a motion for recusal in light of the delay; and that he still had available to him the appeals for cassation and/or review in the event of a conviction. T.S. also says that the proceeding was conducted within a reasonable time, considering the unique and specific circumstances of the case; that the petitioner had access to all necessary legal means to mount a defense; and that he was guaranteed a fair and impartial trial.

4. H. examined the positions of the parties and compliance with the requirements set forth in Articles 46 and 47 of the American Convention on Human Rights, without prejudging the merits of the complaint, the Commission has decided to declare the petition admissible for the purposes of examination of alleged violations of rights recognized in Articles 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial) and 25 (right to judicial protection) of the American Convention, taken in conjunction with Articles 1(1) and 2 of said treaty. The Commission has further decided to notify the parties of this decision, to publish it, and include it in its Annual Report to the OAS General Assembly.

II. PROCESSING BY THE IACHR

5. The IACHR received the petition on August 10, 1998, and forwarded a copy of the pertinent parts to the S. on November 8, 1999, giving it 90 days in which to submit observations, in accordance with Article 34 of its Rules of Procedure, as then in force. The IACHR received the response of the S. on J. 17, 2000, and forwarded it to the petitioner on August 14, 2000.

6. The petitioner submitted additional information on: September 14, 2000; M. 24, 2001; August 5, 2009; August 19, 2011; A.7., 2014; and J. 30, 2014. T.S., for its part, submitted additional observations on August 21, 2001, and November 11, 2015.

III. POSITIONS OF THE PARTIES

A. The petitioner

7. The petitioner alleges that at approximately 8:30 a.m. on February 21, 1995, he was on his way to work in the city of Guayaquil when he was intercepted by a group of heavily armed police officers, who, using physical aggression and offensive language, unlawfully and arbitrarily detained him without showing him the requisite “constitutionally mandated arrest warrant" (boleta constitucional de detención) signed by a competent authority. (He alleges that the order was issued after he was apprehended.) He was then held incommunicado for over 15 days, despite the maximum time allowed under domestic law being 24 hours. The petitioner's capture purportedly occurred in the context of a police anti-narcotics operation named "White Storm” (Tormenta Blanca).

8. He accounts that during those days he was held at a Police Precinct in a cell measuring three meters by five meters without a place to sleep, where he was subjected to psychological torture, consisting of music played very loud and bright lights. He was also allegedly threatened with physical torture unless he confessed to belonging to a criminal organization involved in drug trafficking. He says that during that period he was made to provide a statement without a lawyer present.

9. He also claims that based on a judicial decision that lacked grounds and sufficient evidence, he was remanded in custody pending trial for a period of 43 months in all. (By the time the petition was lodged before the IACHR 40 months had elapsed.) He stresses that his pretrial detention lasted all that time, in spite of the fact that the Prosecutor of the Fourth Criminal Court of Guayas decided not to indict him because she could find no evidence against him. He argues that a second prosecutorial opinion to that effect issued on August 15, 1997, was validated by the Fourth Criminal Court of Guayas by means of a dismissal without prejudice ordered on November 20, 1997. H., that decision, though favorable to the petitioner, did not entail his release because, under the Law on Narcotic and Psychotropic Substances (Articles 121 and 122), it had necessarily to be referred for consultation to the S.D. of the Superior Court of Justice of Guayaquil.

10. The petitioner argues that under domestic law, the criminal proceeding should not have lasted more than six months; therefore, it was clear that his right to be tried within a reasonable time had been violated.

11. The alleged victim also says that at the time the complaint was lodged before the IACHR, decisions were still pending on the applications for habeas corpus presented to the M. of Guayaquil on J. 18, 1998, and to the Constitutional Court on J. 31, 1998, by which his allegations of arbitrary detention, police mistreatment, unwarranted prolongation of pretrial detention, inhumane conditions of detention, and various injuries caused to him and his family were brought to the attention of different public authorities.

12. He argues that the consultation procedure envisaged in the Law on Narcotic and Psychotropic Substances (Articles 121 and 122) violated Article 2 of the American Convention on Human Rights and that, in spite of the fact that that law set a time limit of 30 days for the Superior Courts of Justice to dispose of the consultation, at the time the petition was lodged before the IACHR six months had elapsed yet the consultation on his release had still not been settled. The petitioner says that his release only came about as a result of the effect of provisions contained in the new Constitution adopted by the National Constituent Assembly on J.5., 1998, which determined that all those whose cases had been dismissed were to be released immediately without need of consultation.

13. The petitioner claims that his unjust and prolonged pretrial detention caused serious harm to his family life and irreparable damage to his own life plan and career prospects. In that connection, he says that, in spite of the judicial remedies invoked, he has not received redress for the time that he was deprived of liberty despite his innocence, or for the conditions of detention in which he was held, or for the harm caused to his reputation, family, and professional career.

B. The S.

14. According to the S., the petitioner has not exhausted domestic remedies under the terms of Article 46(a) of the American Convention, given that at the time of the S.'s first response on M. 17, 2000, a decision was pending on the application for habeas corpus that the petitioner had filed before the Constitutional Court on J. 31, 1998. It ststes that Mr. V.G. was released on September 1, 1998, after the S.D. of the Superior Court of Justice of Guayas ordered, ex officio, the release of all detainees whose cases were dismissed with or without prejudice by the decision issued on November 20, 1997. The foregoing was done pursuant to provisions contained in the new Constitution adopted on J.5., 1998, which went into force on August 10 that year.

15. The S. says that in light of the Guayas Superior Court's delay in disposing of the consultation on the dismissal, the petitioner could have filed a motion for recusal against the judges of that court’s S.D. in order to have them disqualified from hearing the case. It also argues that, had a conviction been...