On July 15,1998, the Inter-American Commission on Human Rights
(hereinafter “the Commission”) received a complaint in which it was
alleged that the Republic of Ecuador (hereinafter “the State” or
“Ecuador”) had violated the rights of Mr. Daniel David Tibi, a French
national residing in Ecuador and a dealer in precious stones and art
objects, which rights are protected in the American Convention on Human
Rights (hereinafter “the American Convention”).
The Petitioner is represented before the Commission by Attorney
Arthur Vercken, also a French national.
He alleges violation of Articles 5 (humane treatment); 7 (personal
liberty); 8 (fair trial); 10 (compensation); 11 (privacy); 21 (property);
and 25 (judicial protection), all in relation to Article 1(1) of the
The Petitioner alleges that, on September 27, 1995, he was arrested
by the police in Quito while driving his car in a city street.
The Petitioner alleges that he was taken, unjustly, by airplane, to
the city of Guayaquil, some 600 km. from Quito, where he was placed in a
cell and illegally held for 28 months. The Petitioner claims that he is
entirely innocent of the charges made against him and that he was
subjected to torture on seven occasions, beating, burning, and suffocation
aimed at obtaining a confession that he had participated in a drug
The Commission concludes, in this report, that the case meets the
requirements set forth in Articles 46 and 47 of the American Convention.
The Commission therefore decides to declare the case admissible, to
notify the parties of its decision, and to continue to analyze, on the
merits, the allegations of violations of Articles 5, 7, 8, 10, 11, 21, and
25 of the American Convention. At
the same time, it places itself at the disposal of the parties for
initiation of a friendly settlement process and decides to publish this
PROCESSING BEFORE THE COMMISSION
On July 15, 1998, the complaint on this matter was received by the
Commission. On May 7, 1999,
notes were sent to the State and the Petitioner and the case was opened.
On August 12, 1999, the State replied to the request for
information; on September 27, it transmitted additional information.
On October 8, 1999, the information was sent to the Petitioner. On April 7, 2000, the Petitioner transmitted further
information; on June 20, this was sent to the State.
As of this date, October 5, 2000, the State has not submitted its
the positions of the parties
Position of the Petitioner
On September 27, 1995, the Petitioner was arrested in Quito by two
police officers who identified themselves as Interpol agents, and said
that they worked in immigration control. Approximately two hours following
his arrest, the Petitioner was informed as a mere formality that he would
see a trial judge in Guayaquil, with the return trip scheduled for that
same day at night. The trip
was made by plane.
On arriving in Guayaquil, he was handcuffed on leaving the plane
and was transferred to the model headquarters of Interpol, where he was
placed in a cell until the following day when he was removed from the cell
and taken before the prosecutor, without a judge being present.
In the prosecutor’s office, he was shown an album of photographs
of persons implicated in the operation against the drug trafficker called
“Camarón,” and, in particular, the picture of someone the Petitioner
had met on two occasions to negotiate the exportation of leather bags, a
transaction that never occurred. After recognizing the individual, the Petitioner explained
why that person visited his home. The individual, Eduardo Edison García,
made a statement along the same lines as the one made by the Petitioner,
but, according to the Petitioner, the last part of the statement was
falsified by the police to frame him.
Interpol accused the Petitioner of having sold 50 grams of cocaine
hydrochlorate to Eduardo García. In December 1995, Eduardo García denied the police report,
but this statement was not included in the file.
In March 1996, Eduardo García made another statement that the
Petitioner was innocent. That
statement was placed in the file.
In July 1996, the Petitioner filed an action for enforcement of his
right to liberty before the President of the Superior Court.
This measure was rejected by the Court, since the President of the
Court found evidence in the action that suggested an infringement of the
law and also liability of the Petitioner, which suffice under Article 177
of Ecuador’s Criminal Procedure Code to hold a person in custody.
Five months after his arrest, the Petitioner was offered his
freedom in exchange for a new statement in which he was to admit his
involvement in the “Camarón”
case. The Petitioner received
death threats in attempts to force him to change his statement. He was
handcuffed and taken to a room where he received blows about the body and
face. His lower limbs were
burned with cigarettes and red hot metal bars. Ten days later, the blows
and burns were repeated, this time resulting in his ribs being broken.
On other occasions, he was dealt blows with baseball bats, and his
head was submerged in a barrel of water.
He never received medical attention to treat his wounds.
Finally, the torture sessions were suspended through the
intervention of the Embassy of France. In total, the Petitioner counted
seven sessions. Despite the
physical pressure, the Petitioner never admitted participation in the
offenses of which he was accused.
On September 3, 1997, the request for dismissal was accepted, but
the Petitioner was not immediately freed since the Public Prosecution
Service had to send its verdict “for consultation” to the Superior
Court, in accordance with Articles 398 to 403 of Act 134 of the Ecuadorian
Code of Criminal Procedure.
Under normal circumstances, this consultation should be done within
15 days, but, in this case, it required more than the established period.
Faced with this delay, the Petitioner filed an action for amparo on October 2,
1997, which was dismissed without any explanation whatever, as the
Petitioner alleged. Nonetheless, in January 1998, the judges decided to
sign the consultation by finding, as stated in the decision, that the
accusations against the Petitioner were completely unrelated to the
criminal activity reviewed in the action.
They also decided to transmit an order of release. On January 21,
1998, the Petitioner was finally released. Following his release, he
returned to France and retains a lawyer in Ecuador, Dr. Colón Delgado
Cedeño, who is responsible for continuing to handle the proceedings for
the Petitioner’s matter.
10. The Petitioner
attaches the following documents as evidence of his allegations of
articles from France and Ecuador;
French medical reports that determine the physical state of the
Petitioner, caused by injuries suffered in prison.
The Petitioner also alleges that when he was held in the
penitentiary, he had to pay 20,000 sucres (US$ 90) to a prison guard to be
able to obtain a cell. According
to the Petitioner, this was a common practice in order to sleep
“safely.” Until he agreed to that payment, he remained in the
corridors of the pavilion, sleeping on a bench.
The Petitioner also alleges that he was robbed of his belongings (
his car, along with money and valuable items inside the car) which he
The value of the assets for which the Petitioner is suing amounts
to FRF 1,000,000.
Position of the State
The State alleges that the Petitioner did not exhaust the remedies
of the domestic jurisdiction, and that, consequently, the Commission
should declare his petition inadmissible.
It alleges that the courts are still to decide the action.
It admits the existence of procedural irregularities in the
proceedings in the trial court, but it alleges that those irregularities
have been remedied, since the Petitioner could invoke remedies available
to him to recuse the judges. Pursuant to that provision, he filed a
complaint with the Complaints and Claims Commission of the Supreme Court
of Justice, since the judge hearing the action had not replied to the
Petitioner’s appeal for dismissal.
This judge was admonished by the Supreme Court for delaying the
proceedings for this type of trial. The use of such a measure by the
Petitioner, alleges the State, made it possible for trial to be conducted
under appropriate conditions.
The State also alleges that the process was not concluded and that
the decision of the tribunals, whether favorable or not, would be a
suitable way to resolve the situation of the Petitioner.
It also alleges that it prove the existence of effective domestic
remedies to resolve the legal situation of the Petitioner.
These measures are the appeal to quash a decision of a lower court,
which the Petitioner might file against the judgment issued by the
corresponding criminal court. That measure is effective if the Supreme
Court of Justice had made errors of law, in annulling
the judgment and issuing a new according to law.
The State also alleges that another available remedy is that of
review, which may be filed at any time after the judgment is executed if
it was a conviction.
As to returning the belongings taken from the Petitioner at the
time of the arrest, the State alleges that the law requires that they be
requested and that they were never claimed after the Petitioner was
AnAlYSis OF ADMISSIBILITY
personae, ratione loci, and ratione temporis competence
of the Commission
The Commission has ratione
materiae, ratione personae pasiva, ratione
loci, and ratione temporis
competence to hear this case, because the complaints of violations of
Articles 5, 7, 8, 10, 11, 21, and 25 of the Convention against the
Petitioner, a French citizen, are attributed to the Ecuadorian State, a
State Party to the Treaty, and were allegedly committed on Ecuadorian
territory after ratification of the Convention. Regarding
rationae persone competence, the Petitioner retained Attorney Arthur
Vercken, who was authorized to file complaints with the Commission
pursuant to Article 44.
The Commission has prima
facie competence to consider this case, since it concerns a claim
alleging human rights violations protected by the American Convention.
The Petitioner has locus
standi to appear and
present complaints on the failure to comply with provisions established in
the Convention by the Ecuadorian police and prison guards, which means
consequent international liability of the Republic of Ecuador.
The Commission is therefore competent to examine the claim of the
Other requirements for admissibility of the petition
Exhaustion of domestic remedies
The Petitioner stated that the charges against him were dismissed,
and consequently he had no other domestic remedies to exhaust.
The State’s claim that the other remedies to exhaust refer to the
drug trafficking case against the Petitioner that was provisionally
dismissed on September 3, 1997. However, this case has been under
consideration since 1995, on which account the Commission concludes that
there is unjustified delay in applying the exception set forth in Article
46(2)(c). The Commission
observes that the State does not specify what remedies have already been
exhausted, nor the body hearing the action.
The Commission observes that after the dismissal of the first
action for (amparo) infringement
of fundamental rights and freedoms filed by the Petitioner on July 1,
1996, the Petitioner proceeded to present a second action for amparo on October 2, 1997, since he was arrested despite the
dismissal. In the appeal, the
Petitioner informed the judicial authorities of Ecuador that “since his
detention, as stated in the action, all his due process rights, both
personal and constitutional, have been violated, which have resulted as a
consequence of the unlawful detention, judgment in a forum without
jurisdiction, and imprisonment, despite his innocence, for more than two
The Ecuadorian judicial authorities did not respond at all to this
In Advisory Opinion Nº 8, requested by the Commission, the
Inter-American Court of Human Rights stated that habeas corpus meets the objective of respect for the life and humane
treatment of the individual, of preventing the disappearance of persons or
preventing the individual from being held in unknown locations, and
protects against torture and other forms of cruel, inhumane or degrading
Specifically, the Court underscored the difference between habeas
corpus and an action for amparo:
If the two remedies are examined together, it is possible to conclude that "amparo" comprises a whole series of remedies and that habeas corpus is but one of its components. An examination of the essential aspects of both guarantees, as embodied in the Convention and, in their different forms, in the legal systems of the States Parties, indicates that in some instances habeas corpus functions as an independent remedy. Here its primary purpose is to protect the personal freedom of those who are being detained or who have been threatened with detention. In other circumstances, however, habeas corpus is viewed either as the "amparo of freedom" or as an integral part of "amparo."
In Suarez Rosero, a case
also brought against Ecuador, the Court stated that the right of habeas
corpus is fully protected under Ecuadorian law:
a detained person must be guaranteed the right of habeas corpus at all
times, even when he is being held in exceptional circumstances of incommunicado
detention established by law. That guarantee is doubly entrenched in the
law in Ecuador. Article 28
of the Political Constitution provides that
person who believes that he is being unlawfully deprived of his liberty
may seek the remedy of habeas corpus. He may exercise this right
himself or through another person without the need for written mandate ...
Code of Criminal Procedure of that State establishes in Article 458 that
person who is charged with infringing the precepts contained in [that] Code
and is kept in detention may apply to be released to a higher Court than
the one that has ordered the deprivation of his liberty.
application shall be made in writing.
upon receipt of the application, the Judge who is to hear it shall order
the detained person to be brought before him and shall hear his
statements, which shall be included in a record which shall be signed by
the Judge, the Secretary and the applicant, or, should the applicant be
unable to sign, by a witness on his behalf. Thereupon, the Judge shall
seek to obtain all the information he deems necessary for the purpose of
arriving to a conclusion and ensuring the lawfulness of his decision and
shall, within forty-eight hours, decide what he deems to be lawful.
Court shares the Commission's view that the right enshrined in Article
7(6) of the American Convention is not exercised with the mere formal
existence of the remedies it governs. Those remedies must be effective,
since their purpose, in the terms of Article 7(6), is to obtain without
delay a decision "on the lawfulness of [his] arrest or
detention," and, should they be unlawful, to obtain, also without
delay, an "order [for] his release". The Court has
also held that
order for habeas corpus to achieve its purpose, which is to obtain a
judicial determination of the lawfulness of a detention, it is necessary
that the detained person be brought before a competent judge or tribunal
with jurisdiction over him. Here habeas corpus performs a vital role in
ensuring that a person's life and physical integrity are respected, in
preventing his disappearance or the keeping of his whereabouts secret and
in protecting him against torture or other cruel, inhuman or degrading
punishment or treatment (Habeas Corpus in Emergency Situations (Arts.
27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory
Opinion OC-8/87 of January 30, 1987. Series A No. 8, para. 35).
In regard to violation of Article 7, the Commission considers the
actions for amparo presented by
the Petitioner to be sufficient to exhaust domestic remedies. Furthermore,
the Commission considers those same actions for amparo
capable of resolving the questions of violations against the rights of
liberty and physical and mental integrity. Thus the Commission concludes that the
Petitioner did exhaust domestic remedies in regard to Article 5 of the
Convention, as he filed for amparo twice and had both requests denied (once in court and the
other simply ignored with no explanation given). These action for amparo
did not lead to the Petitioner being freed or to the Ecuadorian
authorities carrying out an investigation of the Petitioner’s complaint
that his human and constitutional rights had been violated while he was
being detained. Said actions proved ineffective and could be called a
“formality devoid of meaning”.
In Velásquez Rodríguez
the Court stated that:
mere fact that a domestic remedy does not produce a result favorable to
the petitioner does not in and of itself demonstrate the inexistence of
exhaustion of all effective domestic remedies.
For example, the petitioner may not have invoked the appropriate
remedy in a timely fashion.
is a different matter, however, when it is shown that remedies are denied
for trivial reasons or without an examination of the merits, or if there
is proof of the existence of a practice or policy ordered or tolerated y
the government, the effect of which is to impede certain persons from
invoking internal remedies that would normally be available to others. In such cases, resort to those remedies becomes a senseless
formality. The exceptions of
Article 46(2) would be fully applicable in those situations and would
discharge the obligation to exhaust internal remedies since they cannot
fulfill their objective in that case.
in regard to the Petitioner’s property confiscated upon his detention,
the State does not indicate what procedures should have been followed to
secure its return. Instead, the State maintains that after his release,
the Petitioner never made a claim for his property. However, the Criminal
Court of Guayaquil in its decision of 23 September 1998 found that, “The
case of Daniel Tibi having been dismissed, his property, as figuring in
the Guayas Anti-Narcotics Investigation Report and to be confirmed by the
Sixth Superior Court of Guayaquil, shall be returned to him.”
The Commission notes that as of the date of writing (5 October 2000), the
matter has not been resolved. Twenty-fours months having passed since the
Superior Court decision, the Commission concludes that this is a case of
unjustified delay. Thus, in regard to the right to property as recognized
in Article 21 of the American Convention, the Commission considers that
domestic remedies have been exhausted.
Period for lodging a petition
Article 46(1)(b) of the Convention stipulates that a petition must
be lodged within six months of the date on which the party alleging
violation was notified of the final judgment exhausting domestic remedies.
In this case the Petitioner lodged his communication with the Commission 5
months and 3 weeks after he was released upon the execution of the 14
January 1998 Superior Court order confirming dismissal. Given that the
petition was lodged within six months of the petitioner first having the
opportunity to do so, the Commission considers that it was presented
within a reasonable time period in accordance with Article 46(1)(b).
Duplication of proceeding and subject
The Commission understands that the subject of the petition is not
pending in any other international proceeding for settlement, and that the
petition is not substantially the same as any already examined by this or
another international organization. Thus the requirements laid out in
Articles 46(1)(c) and 47(d) have been met.
Characteristics of the alleged facts
28. The Commission
finds that in principle the facts presented by the Petitioner, if proven
true, could constitute a violation of rights protected by the American
Convention. Thus the requirements of Article 47(b) of the Convention have
29. Based on the
findings of fact and law herein explained, the Commission concludes that
the present case satisfies the requirements for admissibility contained in
Articles 46 and 47 of the American Convention.
Given the above conclusion,
INTER-AMERICAN HUMAN RIGHTS COMMISSION,
Declare the present case admissible with respect to Articles 5, 7,
8, 10, 11, 21 and 25 of the American Convention.
Transmit this report to the Petitioner and to the State.
Continue with an in-depth study of the case.
Make this report public and include it in its Annual Report to the
OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights in Washington D.C., on this the 5th day of October,
2000. (Signed): Hélio
Bicudo, Chairman; Claudio Grossman, First Vice-Chairman; Commissioners:
Marta Altolaguirre, Robert K. Goldman, and Peter Laurie.
Art. 398 – The criminal court judges are required to take up for
consultation to the respective Superior Court, the decisions to
dismiss (...) Art. 399. Whenever the judge in the same proceedings
issues a decision to dismiss in favor of one or more of the accused
(...) a copy of the proceedings will be transmitted to the Superior
Court to resolve the consultation and the original will go to the
Criminal Court which will continue the case.
Art 401 – The Superior Court will decide the consultation on
the merits of what has been presented within 15 days from the receipt
of the proceedings and its resolution will be carried out.
The Petitioner presented a detailed two page list of the goods that he
is claiming. This list
was compliled at the time of Mr. Tibi's detention and is signed by him
and the police lieutenant, Mr. Edison Tobar.
Ecuador ratified the American Convention on December 28, 1977.
Writ of amparo presented by the Petitioner to the President of the
Superior Court of Guayaquil on October 2, 1997.
Inter-American Court of Human Rights. Habeas Corpus in Emergency
Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human
Opinion 8/87 of January 30, 1987, paragraph 34. The Commission would like to point out that Article 93
of the Constitution refers to habeas corpus
as a safeguard on the legality of a detention which is presented to
the mayor of the jurisdiction where the person is being held. Article
95 refers to amparo, an action
which would “require measures to stop, prevent or immediately remedy
the consequences of an illegitimate act or omission on the part of a
public authority that violates or could violate any right protected by
the Constitution or by an international treaty or convention currently
in force…” Amparo is more
inclusive as it safeguards the right to personal liberty and all other
rights protected by the Constitution of Ecuador and the American
This refers to Article 28 of the old Constitution of Ecuador.
It is Article 93 of the present Constitution.
Inter-American Court of Human Rights, Suárez Rosero case, Judgment of
November 12, 197, paragraph 59.
Inter-American Court of Human Rights. Habeas Corpus in Emergency
Situations (Arts. 27.2, 25.1 and 7.6 American Convention on Human
Rights). Advisory Opinion 8/87 of
January 30, 1987, paragraph 35.
Inter-American Court of Human Rights.
Velásquez Rodríguez case, 29 July 1988, paragraphs 67-68.
Decision of the Superior Court of Guayaquil, 23 September 1998.