Report No. 270 (2020) IACHR. Petition No. 728-13 (Ecuador)

• Year: 2020
• Case Type: Admissibility
• Respondent State: Ecuador
• Court: Inter-American Comission of Human Rights

REPORT No. 270/20

PETITION 728-13

REPORT ON ADMISSIBILITY

ENRIQUE ROBERTO DUCHICELA HERNÁNDEZ

AND HIS FAMILY MEMBERS

ECUADOR

OEA/Ser.L/V/II.

D.. 286

7 October 2020 Original: Spanish

Approved electronically by the Commission on October 7, 2020.

Cite as: IACHR, R. No. 270/20, Petition 728-13. A.. Enrique Roberto D. Hernández and his family members. Ecuador. October 7, 2020.

www.iachr.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Marta E. Andrade, Human Rights Center of the Pontificia Catholic University of Ecuador, Regional Foundation for Human Rights Advisory (INREDH)
:	Enrique Roberto D. Hernández and his family members
Respondent S.:	Ecuador
Rights invoked:	Articles 3 (recognition of legal personality), 4 (life), 5 (personal integrity), 7 (personal freedom), 8 (fair trial), 13 (freedom of expression) and 25 (judicial protection) in relation to article 1.1 of the American Convention on Human Rights1

II. PROCEEDINGS BEFORE THE IACHR2

D. of receipt	A. 30, 2013
N. of the petition:	December 6, 2017
Additional information received during the investigative stage:	February 2, 2017
S.’s first response:	A. 6, 2018
Additional observations from the petitioners	August 31, 2018
Additional observations from the S.	December 3, 2018

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit of instrument made on December 28, 1977)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Articles 3 (recognition of legal personality), 4 (life), 5 (personal integrity), 7 (personal freedom), 8 (fair trial), 13 (freedom of expression) and 25 (judicial protection) in relation to article 1.1 of the American Convention
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., article 46.2 exception applies. c) of the Convention
Timeliness of the petition:	Y., in the terms of section VI

V. FACTS ALLEGED

1. The petitioning party denounces the failure to prevent and protect Mr. E.R.D.H. (hereinafter “the alleged victim”), who was an agent of the Ecuadorian Foreign Service, and who they allege was detained, tortured and disappeared in the city of Lima , during the month of M. 1988 while he was carrying out his official duties. Petitioners alleged that to date, the E.S. has not initiated a serious investigation nor has it provided all the information on the espionage functions carried out by S.D. and information related to his disappearance. A., against the constitutional actions initiated by M.E. and her daughters, negative responses have been received, reflected in unduly motivated sentences.

2. It indicates that the alleged victim was a First Sergeant of Air Aviation of Ecuador and that on December 17, 1986, he was appointed Administrative Assistant in the Lima Air Attaché Office, a position that he carried out between J. 11, 1987 and J. 1988.

3. Petitioners affirm that, although officially, the alleged victim carried out activities for the assigned position, in essence he was fulfilling the mission entrusted by the E.S., of accessing confidential and useful information. Petitioners describe that for this purpose, he bought and leaked information from the P. Army Intelligence Service (hereinafter “SIE”) during 1986 and 1987. It states that, in 1987, the SIE authorities learned of said information leak , they discovered a spy network financed by Ecuador, and in the framework of their investigations they identified S.L.M.B. as the direct contact of the alleged victim. They point out that on March 18, 1988, Marco Barrantes was disappeared and in M. of the same year, tried in absentia for crimes against the security of the Nation.

4. He reports that on F., M. 27, 1988, the alleged victim communicated by telephone for the last time with his wife, Mrs. M.E.A., and that from that day he did not go to the Ecuadorian Embassy to work. They affirm that on M. 30, 1988, his immediate boss informed the Ecuadorian Ambassador about the disappearance and that the latter brought the case to the attention of the Ecuadorian Foreign M., indicating that there were indications of the arrest of the alleged victim and requesting that actions be coordinated with the P.C.. Notwithstanding, such information, the petitioners point out that the E.S. did not take any legal action, such as a writ of habeas corpus, which could have saved the life of the alleged victim.

5. S. that on J.3., 1988, M.E. went to the office of the Chief of Intelligence of the Ecuadorian Air Force, who promised to recover her husband, as long as she collaborated with his discretion on the issue of espionage. L., petitioner relates that on J.4., 1988, she met with then-Ecuadorian President León Febres Cordero and some ministers. It alleges that the investigative proceedings in Peru were initiated in absolute secrecy and without the Ecuadorian authorities promoting the lifting of the reserve. They point out that on J. 13 and 27, September 26, and December 26, 1988, the Embassy communicated with the M. of Foreign Affairs of Ecuador about the investigations and responses from Peru, without positive results.

6. It states that the Ecuadorian M. of Defense informed Mrs. E. that her husband had left a letter informing that he would not return to Ecuador because he had initiated an extra-marital sentimental relationship. It should be noted that the Ecuadorian Armed Forces supported this version for many years, despite the fact that the alleged letter from the alleged victim never appeared.

7. It indicates that on J. 18, 1991, the Seventh Civil Court of Pichincha declared the presumed death of Mr. D. due to the disappearance, and that the E.S. proclaimed his post-Mortem promotion to Second Warrant Officer.

8. It explains that for nine years no action was carried out, and that it was not until December 15, 1997, after a request by Mrs. E. before the International Committee of the Red Cross, that the M. of Foreign Relations requested information on the alleged disappearances of citizens during the Ecuador-Peru war.

9. It indicates that in 2000, the P. journalist R.U. contacted Mrs. E. to express that he had information about what had happened to the alleged victim and that he would make a publication in this regard. T., it indicates that in 2004 the book “Muerte en el pentagonito. The secret cemeteries of the P. Army ”, in which chapter VIII entitled“ The spy who did not return to Quito” recounts the disappearance of Mr. D.. It describes that the journalistic investigation discovered that the alleged victim was kidnapped on M. 27, 1988, after a follow-up and capture operation ordered by the high military commanders of the SIE. They state that said agent pointed out that Marco Barrantes and the alleged victim were detained, interrogated for espionage activities, tortured and executed on J. 10, 1988 in the basements of the SIE, that their bodies were finally cremated and the ashes scattered in the gardens del Pentagonito on J. 11, 1988.

10. It states that in J. 2005, M.E. filed a complaint against the E.S. for the crimes of omission and concealment of forced disappearance, and that on October 16, 2008, the Prosecutor of the Crimes Against Life Unit, decided to refrain from hearing the case for lack of jurisdiction, alleging that the crime was committed in Peru and that the intellectual and material actors are P. nationals.

11. S. that on March 8, 2010, M.E. asked the Ecuadorian Minister of Foreign Affairs that the government carry out judicial monitoring of the case in Peru, without receiving any type of state aid.

12. It indicates that on August 22, 2011, it filed a protection action against the Ministers of National Defense and Foreign Relations, and the S.A. General, alleging the failure to initiate investigations into the disappearance of the alleged victim and transmitting the results to his relatives, as well as the failure of the Ecuadorian authorities to claim for his detention.

13. It states that on October 7, 2011, the Seventh Judge of Criminal Guarantees of Pichincha rejected the action, alleging that there was no violation of a constitutional right. It specifies that the appeal presented was dismissed on A. 18, 2012, by the Provincial Court of Justice on the grounds that there were no violated constitutional rights.

14. F. with this situation, on M. 17, 2012, an extraordinary protection action was commenced before the Constitutional Court due to the lack of reasons for the said ruling. Petitioners point out that on September 19, 2012, said court rejected the action and ordered the case file on the grounds that “the petition made by the plaintiff is about the matter that was the reason for the protection action, denied in the first and second instance, when in reality the extraordinary protection action is a different action from the protection action ”. It indicates that said decision was notified to them by the website of the Constitutional Court on October 31, 2012.

15. On the other hand, it maintains that Mrs. E. on J. 14, 2010, presented a request for access to public information to the M. of Foreign Affairs about the activities...