Report No. 77 (2019) IACHR. Petition No. 74-08 (Ecuador)

• Year: 2019
• Petition Number: 74-08
• Report Number: 77
• Respondent State: Ecuador
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Claudio Roberto Fossati

REPORT No. 77/19

PETITION 74-08

REPORT ON ADMISSIBILITY

CLAUDIO ROBERTO FOSSATI

ECUADOR

OEA/Ser.L/V/II.

D.. 86

28 May 2019

Original: Spanish

Approved Electronically by the Commission on May 28, 2019.

Cite as: IACHR, Report No. 77/19. Petition 74-08. A.. C.R.F.. Ecuador. May 25, 2019.

www.cidh.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Claudio Roberto F., X.G.A.C., and Eduardo William Verdezoto Paredes
:	Claudio Roberto F.
Respondent S.:	Ecuador
Rights invoked:	Articles 5 (humane treatment), 7 (personal liberty), 8 (fair trial), 9 (freedom from ex post facto laws) and 25 (judicial protection) of the American Convention on Human Rights,1 in relation to its Articles 1 (obligation to respect rights) and 2 (domestic legal effects); articles 1, 6 and 8 of the Inter-American Convention to Prevent and Punish Torture;2 and other international treaties3

II. PROCEDURE BEFORE THE IACHR⁴

Filing of the petition:	J. 22, 2008
N. of the petition to the S.:	J. 13, 2013
S.’s first response:	M. 24, 2015
N. of the possible archiving of the petition:	J. 10, 2018
Petitioner’s response to the notification regarding the possible archiving of the petition:	August 24, 2018

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y., American Convention (deposit of instrument on December 28, 1977); IACPPT5 (deposit of instrument on September 30, 1999)

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 5 (humane treatment), 8 (fair trial) and 25 (judicial protection) of the American Convention, in relation to its Article 1 (obligation to respect rights); articles 1, 6 and 8 of the IACPPT
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., under the terms of Section VI
Timeliness of the petition:	Y., under the terms of Section VI

V. ALLEGED FACTS

1. The petitioners submit that on February 12, 2003, the Ecuadorean police arrested M.V.A., Mr. Claudio Roberto F.’s (“Mr. F.” or “the alleged victim”) live-in partner, for money laundering, taking her to the Narcotics Police Unit. U. learning of her arrest, the alleged victim traveled to Ecuador on the same day and went to the abovementioned police station.

2. T. affirm that at the police station, Mr. F. spoke to some officers who did not inform him that his live-in partner had been released but lied to him that she was still under arrest and under investigation and she could be convicted to a 12-year prison term. The petitioners assert that the officers did this to pressure and blackmail M.F. to give and sign a false statement, which he did. T. argue that M.F. gave a statement without due process of law or the right of defense, as he as not assisted by an attorney of his trust —instead his declaration was signed by an unknown attorney. It appears that he incriminated himself and was never informed of his right to contact the Consulate of his country of origin.

3. T. add that on that occasion, the police arrested the alleged victim without a warrant and that he was neither heard by judicial authorities nor brought before them. T., they claim that his arrest was arbitrary and illegal. T. indicate that on February 13, 2003, an investigation was lodged against Mr. F. and that on February 18, the criminal judge of Pichincha ordered his pretrial detention, which did not meet the standards of the inter-American system. On that same day, the prosecutor in charge of the case pressured him to give a different version of his statement to charge him with the crime.

4. T. affirm that on May 16, 2003, the prosecutor’s office accused the alleged victim of participating in an international organization of money laundering criminals using Ecuador as a transit country for smuggling cash into Colombia. T. submit that, at that time, the act of transferring proceeds or smuggling cash from an unknown origin or illicit activities was not classed as a crime in the Ecuadorean laws; therefore, the charges against him were contrary to the principle of freedom from ex post facto laws. T. manifest that in the arraignment hearing, the prosecutor expressed that the offense attributed to the alleged victim was not criminalized under the Law on Narcotic Drugs and Psychotropic Substances and that the court should consider the crimes mentioned in the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988. The petitioners claim that the decision was illegal and unreasonable given that this Convention does not criminalize actions nor establish measures of punishment.

5. T. argue that a lawful conviction of the alleged victim required that the following was proven: i) that a national or foreign court had found him guilty of the crime of drug trafficking; and ii) that the money came from drug trafficking. A. none of these had been proven, on J. 14, 2004, the criminal court sentenced Mr. F. to 12 years in prison and to pay a fine equivalent to one thousand minimum wages. It sent the case to the Superior Court of Justice of Quito (“the Superior Court”), which took up the case on J. 21, 2004. On May 11, 2006, the Superior Court ordered to send the case file to the District Prosecutor’s Office. On August 21, 2006, the District Prosecutor requested the annulment of the conviction on the grounds that the investigation had not produced any evidence that proved beyond a reasonable doubt the existence of a final judgment, issued by a national or foreign judge or court, in which the alleged victim was found guilty of drug trafficking. On September 28, 2006, the Superior Court revoked the conviction on considering that no crime had been committed. On October 18, 2006, the Criminal Court ordered the alleged victim’s release.

6. T. indicate that the alleged victim spent almost four years in prison and had to wait almost two years to have his sentence reviewed. T. also explain that during this time the alleged victim sustained episodes of violence that damaged his physical and mental health. In this regard, they claim that the alleged victim was beaten on several occasions, subjected to death threats, life-threatening attacks with thrusting and cutting weapons and firearms and even suffered fractures to the head. In one of those episodes, the alleged victim was punched, kicked, and beaten with clubs to such an extent that he lost three teeth and required dental implants. T. further explain that the alleged victim was subjected to inhumane detention conditions and mistreatment by prison officers. In this respect, they indicate that officers made him run in the yard unclothed twice or thrice a week and gave him cold showers afterwards, and that at the prison, the diet was poor, there was no health care, and hygiene conditions were inadequate.

7. In light of the foregoing, they allege that the S. of Ecuador is responsible for violating the human rights of the alleged victim and that he is therefore entitled to compensation.

8. For its part, the S. asserts that the alleged victim was not held in prison without being tried. It submits that, at first, he was deprived of liberty because of a pretrial detention order against him, and then, he was imprisoned because of the trial court’s sentence to a 12-year term in prison. It also claims that the alleged victim lodged remedies and had his sentence reviewed and amended and that he was acquitted of the charges on October 2, 2006.

9. M., it submits that the petition should be declared inadmissible in view of the non-exhaustion of domestic remedies. On the one hand, it affirms that under Ecuadorean laws, a person can file a speedy claim for damages against a judge or justice who, in the exercise of their duties, causes financial damage to the parties or interested third parties, either because of a delay or a denial of justice. It asserts that the petitioners should have lodged this remedy if they believe that judicial authorities’ performance has caused damage to the alleged victim, which they have not. On the other hand, it argues that the petition was untimely because the judgment of acquittal is dated October 2, 2006, while the petition was only filed before the IACHR on J. 22, 2008.

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